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Radev v State of Queensland (Queensland Police Service)[2021] QIRC 439

Radev v State of Queensland (Queensland Police Service)[2021] QIRC 439

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439

PARTIES:

Radev, Nikolay

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2021/438

PROCEEDING:

Application to stay a decision appealed against

DELIVERED ON:

24 December 2021

HEARING DATE:

24 December 2021

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDER:

The application to stay the decision being appealed is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – application to stay decision appealed against – Commissioner of the Queensland Police Service issued direction on 7 September 2021 mandating certain employees, unless exempted, must receive a COVID-19 vaccine, including a first dose, by 4 October 2021 – applicant applied for exemption from complying with requirement to be vaccinated – exemption refused – applicant suspended on remuneration – suspension subsequently continued, without remuneration, following show cause – applicant, pursuant to ch 7 of the Public Service Act 2008, appealed against the decision to continue suspension without remuneration – applicant applied, pursuant to s 566(1) of the Industrial Relations Act 2016, that the decision being appealed be wholly stayed pending determination of the appeal – consideration of matters in granting a stay of a decision being appealed against pending determination of appeal – arguable case – balance of convenience – stay refused

LEGISLATION AND

INSTRUMENTS:

Directive 16/20 Suspension cl 6.3

Industrial Relations Act 2016 (Qld) ss 562B, 566(1)

Instrument of Commissioner's Direction No. 12 paras 1, 2, 3, 4, 5, 8, 9, 10, 11, 15

Police Service Administration Act 1990 (Qld) ss 2.5, 4.9

Public Service Act 2008 (Qld) ss 119, 137, 197

CASES:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001

Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453

Croney v Nand [1999] 2 Qd R 342

Frigo v Culhaci [1998] NSWCA 88

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235

Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116

Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398

Patterson v BTR Engineering (Aust) Ltd (1989) 19 NSWLR 319

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190

APPEARANCES:

Mr M Moorhead of Together Queensland, Industrial Union of Employees for the Applicant

Ms A Howell of the Queensland Police Service for the Respondent

Reasons for Decision

  1. [1]
    Mr Nikolay Radev is employed by the Queensland Police Service ('the Service') through Queensland Government Air ('QGAir') as a Principal Operations Coordinator (AO7). Mr Radev is employed as a staff member of the Service within the meaning of s 2.5 of the Police Service Administration Act 1990 (Qld) ('the Act') and is appointed as an officer of the public service pursuant to s 119 of the Public Service Act 2008 (Qld) ('the PS Act'). He has been employed by the Service for over 15 years.
  2. [2]
    On 7 September 2021, pursuant to s 4.9 of the Act, the Commissioner of the Service ('the Commissioner') issued the Instrument of Commissioner's Direction No. 12, concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members retained by the Service ('Direction No. 12').
  3. [3]
    Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to s 119 of the PS Act and who are frontline staff members, or frontline support staff members, as defined in paragraph 15 of the direction.
  4. [4]
    Relevantly, the term 'frontline support staff member' is defined exhaustively under paragraph 15 of Direction No. 12 as:

a staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services, including services performed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).

  1. [5]
    Paragraph 7 of Direction No. 12 provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraph 8 or 9, all such staff members must receive at least one dose of a COVID-19 vaccine by 4 October 2021, receive a second dose of a COVID-19 vaccine by 24 January 2022, and provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate.
  2. [6]
    The direction provides an exemption from vaccination requirements if the police officer or staff member is unable to be vaccinated due to a medical contraindication and they provide medical evidence to this effect in accordance with the direction, or if the Commissioner or the Commissioner's delegate grants an exemption due to a genuine religious objective or due to other exceptional circumstances.
  3. [7]
    In a decision letter dated 7 December 2021, A/Assistant Commissioner, Ethical Standards Command, Virginia A Nelson APM informed Mr Radev he would be suspended without remuneration from 10 December 2021 until 7 June 2022, unless revoked sooner ('the Decision').
  4. [8]
    By appeal notice filed 23 December 2021, Mr Radev appeals the Decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  5. [9]
    Within his grounds of appeal Mr Radev seeks an interim order that the Decision be wholly stayed pending the determination of his appeal.[4]
  6. [10]
    Section 566(1) of the IR Act relevantly provides that on appeal, the Commission may order that the decision being appealed be wholly or partly stayed pending the determination of the appeal or a further order of the Commission.
  7. [11]
    The question for my determination is whether I should grant the stay as sought by Mr Radev.
  8. [12]
    For the reasons that follow, I dismiss Mr Radev's application for a stay of the Decision.

Background

  1. [13]
    Direction No. 12 was issued and took effect from 7 September 2021. Paragraphs 1 to 5 of Direction No. 12 set out the reasons why the Commissioner made the direction, in respect of the police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19.
  2. [14]
    Those paragraphs provide:

Background

  1. 1.A public health emergency was declared on 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant, its increased virulence and severity of disease and the reduction in neutralising antibody activity.
  1. 2.In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID19 through the Queensland Police Service would take police officers and staff members out of service while they Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439undertake quarantine periods or recover from COVID19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.
  1. 3.While it is primarily police officers who are on the front line, many staff members:
  1. a)
    have close working relationships with police officers;
  2. b)
    interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and,
  3. c)
    are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).
  1. 4.The Work Health and Safety Act 2011 places a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service.
  1. 5.While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to serve the community during a public health emergency.
  1. [15]
    Direction No. 12 provides for the ability for police officers and staff members, to whom the direction applies, to apply for and be granted an exemption from the mandatory vaccination requirement. Paragraphs 8 to 11 of Direction No. 12 provide:

Exemption from requirements for vaccination against COVID-19

  1. 8.A police officer or staff member is exempt from the requirements in paragraph 7 if:
  1. a)
    the police officer or staff member is unable to be vaccinated due to a medical contraindication; and
  2. b)
    the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:

i) the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and

ii) whether the condition is temporary in nature, and, if so, the duration.

  1. 9.A police officer or staff member is also exempt from the requirements in paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:
  1. a)
    due to a genuine religious objection; or
  2. b)
    due to other exceptional circumstances.
  1. 10.A police officer or staff member who applies for an exemption under paragraph 9 must provide any supporting evidence requested.
  1. 11.An exemption granted under paragraph 9 must be given in writing and may be subject to conditions. A police officer or staff member given an exemption must comply with any conditions specified therein.
  1. [16]
    On 21 September 2021, the Commissioner sent an email to all police officers and staff members advising that all staff to whom Direction No. 12 applies were required to provide proof of receiving at least one COVID-19 vaccination to their Officer in Charge or Manager by 4 October 2021.
  2. [17]
    On 27 September 2021, Mr Radev applied for an exemption on the basis of 'exceptional circumstances' related primarily to his family obligations and position as the sole income earner in his household. His request was refused on 4 October 2021 and, after Mr Radev sought reasons for the refusal, the Service conveyed the following to him on 10 October 2021:

The Committee considered that the reasons provided did not constitute exceptional circumstances in terms of Section 9 of the Commissioner's Direction No 12 or Section 13 of the associated Guidelines.

It was noted that apart from the statement provided by the member no other supporting evidence was included with the application.

  1. [18]
    Mr Radev sought to challenge the refusal on appeal but was unsuccessful.[5]
  2. [19]
    As a consequence of his failure to be vaccinated or otherwise obtain an exemption, Mr Radev was suspended from duties, with remuneration, on 15 October 2021. Formal correspondence confirming his suspension from duties with remuneration was prepared on 21 October 2021.[6]
  3. [20]
    At the same time, Mr Radev was requested to show cause, within seven days, why his suspension should not be without pay.[7]
  4. [21]
    Mr Radev responded to the show cause notice on 1 November 2021, and again on 4 November 2021 with a supplementary submission.[8]
  5. [22]
    His submissions highlighted his skills and experience,[9] suggestions for alternative duties,[10] COVID testing processes,[11] and options for how he might otherwise perform his role away from the QGAir airport office.[12] A brief outline of Mr Radev's financial circumstances was included in the response,[13] in addition to a discussion about the consequences of suspension with no remuneration from a Human Right's perspective.[14]
  6. [23]
    The supplementary response of 4 November 2021 raised further arguments in respect of human rights, [15] liability for discipline[16] and concerns about the Commissioner's departure from accepted practice in relation to the suspension without remuneration.[17]
  7. [24]
    On 7 December 2021, A/Assistant Commissioner Nelson informed Mr Radev his suspension would continue without remuneration from 10 December 2021 pursuant to ss 137(1)(b) and (4) of the PS Act.[18]

Relevant Principles

  1. [25]
    Section 566(1) of the IR Act provides:

566  Stay of decision appealed against

  1. (1)
    On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—
  1. (a)
    the determination of the appeal; or
  1. (b)
    a further order of the industrial tribunal.

...

  1. [26]
    The principles relevant to an application to stay a decision under appeal were conveniently set out by Merrell DP in Colebourne v State of Queensland (Queensland Police Service)[19] ('Colebourne') where his Honour observed:[20]

[32] Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed.

[33] ... the relevant principles that apply ... in determining whether or not to exercise discretion ... to grant a stay ... are:

  • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;[21]
  • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;[22]
  • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair; [23]
  • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;[24]
  • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;[25]
  • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and
  • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.[26]

[34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.[27]

[35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.[28]

[36] The above-mentioned principles have been applied by the Industrial Court of Queensland[29] and by the Commission[30] in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts.

Mr Radev's Submissions

  1. [27]
    Mr Radev accepts the principles relevant to granting a stay are those set out in Colebourne.[31] However, he contends it is not necessary for there to be 'special' or 'exceptional' circumstances to warrant the granting of a stay, but rather the correct test is merely 'that it is an "appropriate" case for a stay to be granted'.[32] In respect of this application, Mr Radev contends his substantive appeal would be abortive if a stay is refused.[33]
  2. [28]
    Mr Radev submits a refusal to stay the decision would have a significant impact on himself and his family.[34] He notes he is the sole income earner, supporting his wife, who has health issues, and his two children, one of whom is intellectually disabled and requires special care.[35]
  3. [29]
    Both Mr Radev and his wife are immigrants to Australia and do not have the benefit of family support.[36] Without a stay of the Decision, Mr Radev submits he will have no means of supporting his family, including providing them with accommodation and meeting their health needs.[37] This impact, he contends, may result in consequences which cannot be remediated by the Service, even if his appeal were successful and he were back-paid his wages.[38]
  4. [30]
    Conversely, Mr Radev submits the financial impact on the Service would be minimal and would not cause hardship to the State of Queensland which has a significant economic and financial position, as well as an obligation to due process.[39] He adds there also appears to be no operational impact on the Service.[40]
  5. [31]
    Mr Radev maintains it is 'commonplace' for employees of the Service who are subject to an investigation process to be suspended with remuneration for months, or even years.[41] He argues there is no greater disadvantage to the Service in this matter and stays in other disciplinary and suspension appeals are 'reasonable and routine'.[42]
  6. [32]
    Instead, Mr Radev contends the Service is treating unvaccinated employees differently in relation to disciplinary processes and using suspension without pay as a punitive or coercive measure.[43]
  7. [33]
    With respect to his substantive appeal, Mr Radev contends his prospects are 'not very poor' such that he has no arguable case, and there is no argument or evidence before the Commission this is so.[44]
  8. [34]
    Finally, he contends the issues raised by his appeal are very significant matters of fact and law, the determination of which will have significant impacts on not only Mr Radev, but also the broader public service.[45]

The Service's Submissions

  1. [35]
    Referring to the decision in Colebourne, the Service acknowledges the Commission's unfettered discretion to exercise a stay.[46] However, it submits the Commission ought to have regard to the principles enunciated in Alexander v Cambridge Credit Corporation Ltd[47] ('Alexander') in considering whether to exercise that discretion.[48]
  2. [36]
    Although it accepts an assessment of an arguable case is less stringent in that it requires less than proof on the balance of probabilities, the Service contends Mr Radev does not have an arguable case.[49] This is so because, it submits, Mr Radev has presented limited arguments directed at the issue for determination in the appeal, being whether the Decision was fair and reasonable.[50]
  3. [37]
    It submits Mr Radev has provided no evidence to support serious allegations of misconduct made by him that the decision-maker improperly exercised her discretionary power to suspend him in 'bad faith'.[51]
  4. [38]
    The disciplinary allegations giving rise to the suspension are, the Service submits, serious and based on compelling evidence that Mr Radev failed to comply with Direction No. 12 and does not otherwise have a valid exemption.[52]
  5. [39]
    It argues Mr Radev has been afforded natural justice throughout the show cause process in that he was afforded opportunities to respond to the allegations, and those responses were duly considered by the decision-maker.[53] Further, a written decision was provided to Mr Radev, which the Service submits sets out clear evidence and an intelligible justification in support of the decision.[54]
  6. [40]
    The balance of convenience, it contends, does not support the granting of a stay.[55] It submits that were Mr Radev to succeed in his appeal, the Service would remediate any loss of pay suffered by him.[56]
  7. [41]
    However, if Mr Radev were not successful, the Service submits it would be difficult to recover any excess pay provided to Mr Radev, and that, further, the cost of attempting to do so would be a cost to the public service.[57]
  8. [42]
    Although, this was disputed by Mr Radev during oral submissions, where he contended there was no evidence he was unable to pay back any excess amount paid to him, and any suggestion otherwise was merely speculation.
  9. [43]
    In this respect, the Service highlights it is required to consider the public interest in deciding whether to suspend an employee without pay and, in these circumstances, it considers paying Mr Radev would be inappropriate and inconsistent with that public interest.[58]
  10. [44]
    The Service acknowledges Mr Radev's submissions that suspending him without remuneration will have a financial impact on him, however, states he is entitled to apply for recreation and long service leave, as well as seek alternative employment during his suspension.[59] These options, it submits, were set out in the decision letter provided to him.[60]
  11. [45]
    During oral submissions the Service confirmed Mr Radev has accrued 29 days recreation leave, in addition to 112 days long service leave which he is able to access. Although this was accepted by Mr Radev, he argued he should not be forced to use his entitlements and, in any event, the availability of his leave was not a relevant consideration for the purposes of deciding to suspend him without pay.
  12. [46]
    The Services submits the onus is on Mr Radev to demonstrate a proper basis for a stay which will be fair to all parties.[61] It contends he has failed to do so.[62] It adds Mr Radev's reliance on the decisions to suspend two other senior employees on normal remuneration is misplaced as those decisions were based on different facts and circumstances and were not related to the vaccination direction relevant to Mr Radev.[63]

Consideration

  1. [47]
    Mr Radev bears the onus of demonstrating that the stay order proposed is 'fair to all parties' having regard to the balance of convenience. That is, the course most likely to achieve justice between the parties pending resolution of the question of Mr Radev's entitlement to relief, in this case, a determination as to whether the decision to place Mr Radev on unpaid suspension was fair and reasonable.
  2. [48]
    In determining whether or not to grant a stay, I am obliged to also consider whether Mr Radev's appeal raises an arguable case. As observed by O'Connor VP in State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act,[64] having regard to the principles in Alexander, such an assessment:

... is designed to be 'protective' of the Respondent in the sense of being undertaken to test whether the appeal has 'been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgement.[65]

Arguable Case on Appeal

  1. [49]
    As previously observed in this Commission,[66] a 'good arguable' case is 'one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 percent chance of success'.[67]
  2. [50]
    In his submissions Mr Radev contends his prospects are 'not very poor'.
  3. [51]
    Other than observing there is no argument or evidence before the Commission that this is not the case, there are limited (if any) arguments contained within his written submissions addressing his prospects of success and the question as to whether the decision to suspend without remuneration was fair and reasonable.
  4. [52]
    The appeal grounds set out within the appeal notice do, however, provide some assistance.
  5. [53]
    Within the appeal notice, Mr Radev argues the decision-maker has misconstrued cl 6.3(c) of Directive 16/20 Suspension ('the Directive') and similarly failed to give consideration to cl 6.3(b) when determining whether normal remuneration is not appropriate.[68] Clause 6.3(c) concerns the requirement of the Service to consider the public interest of the employee remaining on suspension with remuneration and cl 6.3(b) requires the Service to consider factors not within its control that are preventing the timely conclusion of the disciplinary process.
  6. [54]
    Mr Radev further submits the decision to suspend him without remuneration is intended to coerce him to be vaccinated, through economic pressure, as opposed to the legislative purpose of s 137 of the PS Act.[69] That is, the real purpose of the provision is to enable the decision-maker to consider suspension without pay, having regard to the nature of the relevant disciplinary issues.[70]
  7. [55]
    In an argument about differential treatment between employees, Mr Radev highlights the circumstances of two other senior employees of the Service noting that, notwithstanding the seriousness of the disciplinary allegations against them, they were suspended on pay for periods of four years and eighteen months respectively.[71]
  8. [56]
    Mr Radev questions the validity of Direction No. 12, noting ongoing proceedings in the Supreme Court of Queensland and highlights he was suspended without pay before being invited to respond to why a disciplinary finding should not be made against him.[72]
  9. [57]
    He also points to a portion of the Decision under the heading 'Human rights', alleging this section is 'an absolute admission' the exercise of the discretionary power was for a purpose other than that for which it is conferred.[73]
  10. [58]
    It is also argued the decision-maker took into account an irrelevant consideration by considering the current economic climate and the expenditure of public resources.[74] Mr Radev alleges these are irrelevant considerations having regard to the scheme of the Act which, in his view, supports suspension on normal remuneration as the default position.[75]
  11. [59]
    He maintains A/Assistant Commissioner Nelson acted improperly in exercising a personal discretionary power at the behest of another person, being the Commissioner.[76] In this respect he alleges the reasons for exercising the discretion are relevant not just to the final decision, but also the decision to commence a process to exercise the power.[77]
  12. [60]
    In response, the Service maintains the decision to place Mr Radev on suspension without remuneration for failing to comply with a direction is fair and reasonable, and one which is open to the Service in circumstances where the evidence of his non-compliance is compelling and where no valid exemption was held.[78]
  13. [61]
    It is argued Mr Radev was afforded natural justice and provided adequate time to respond to the show cause notice.[79] This was confirmed by Mr Radev during oral submissions, and also in correspondence provided to the Commission from Mr Radev reflecting he had been granted an extension to respond to the show cause notice in the form of the ability to provide supplementary submissions.
  14. [62]
    Moreover, the written decision sets out clear evidence for the decision and includes intelligible justification, consistent with the decision-maker's obligations under the PS Act and the Directive.[80]

Conclusion – Arguable case

  1. [63]
    Although I hold some concerns about several of the arguments within the appeal notice in support of Mr Radev's contentions as to why the decision to suspend him was unfair and unreasonable, it has long been accepted that the test to determine whether he has an arguable case is a less stringent test than requiring proof on the balance of probabilities.[81]
  2. [64]
    Although a matter for later submissions, it is possible there is an argument as to whether the Service gave adequate consideration to several of the factors set out in cl 6.3 of the Directive.
  3. [65]
    In the absence of further materials and without prejudicing the appeal decision itself, I accept Mr Radev's prospects of success on appeal, are, at least, arguable.

Balance of Convenience

  1. [66]
    As touched on earlier, the balance of convenience is the course most likely to achieve justice between the parties pending the resolution of the substantive appeal, bearing in mind the consequences of the grant, or refusal, of the stay.
  2. [67]
    In making my decision, I am acutely aware of the Service's statutory obligations for ensuring the health and safety of police officers and staff members, in addition to the health and safety of other people, including the public, with whom police officers and staff members interact when performing their functions.
  3. [68]
    In this matter, the Commissioner has attempted to address the Service's obligations, in part, by issuing Direction No. 12 which prescribes mandatory COVID-19 vaccination and mask requirements for police officers and other staff members, including Mr Radev.
  4. [69]
    It is not in dispute between the parties, in these proceedings, that Direction No. 12 issued by the Service was a lawful direction. It is also not in dispute that Mr Radev has refused to comply with that lawful direction.
  5. [70]
    Relevantly, Mr Radev was advised as early as 7 September 2021 of Direction No. 12 and the accompanying COVID-19 vaccination and mask requirements. Although not granted, he was also provided with an opportunity to apply for an exemption in or around September 2021.
  6. [71]
    Section 137(1)(a) of the PS Act provides the Service may suspend a staff member from duty if the Commissioner reasonably believes the proper and efficient management of the Service might be prejudiced if the staff member is not suspended.
  7. [72]
    Having failed to provide the Service with evidence of receiving at least one dose of a COVID-19 vaccine by 6 October 2021, Mr Radev was suspended from duty, on full pay, pursuant to s 137(1)(a), until 7 December 2021.
  8. [73]
    In a procedural sense, no concerns, in respect of the decision to suspend on remuneration, were raised by Mr Radev or his representative during these proceedings. 
  9. [74]
    Section 137(1)(b) of the PS Act provides the authority to suspend an employee from duty if the Commissioner reasonably believes the staff member is liable to discipline under a disciplinary law.
  10. [75]
    Section 137(4) of the PS Act provides that an employee is entitled to normal remuneration during suspension, unless they are suspended under s 137(1)(b) and the Commissioner considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the Commissioner believes the employee is liable.
  11. [76]
    In late October 2021, having determined that Mr Radev failed to comply with Direction No. 12 and presented an unacceptable risk to the safety of the workplace, the Service's workforce and the community,[82] the Service requested Mr Radev show cause as to why he should not be suspended without pay.
  12. [77]
    It is not in contention in these proceedings that the Service complied with its obligations under the Directive in so far as it relates to providing adequate time for Mr Radev to respond to the show cause notice.
  13. [78]
    Thereafter, having considered his response, Mr Radev was subsequently suspended without remuneration from 7 December 2021.
  14. [79]
    Although no supporting evidence was provided to the Commission, Mr Radev argues the impact on both himself and his family if a stay is not granted will be significant and could include homelessness and health impacts on his family. Moreover, that the financial consequences for the Service would be negligible.
  15. [80]
    He also submits it is commonplace for other employees within the Service, subject to an investigation process, to be on paid suspension for months, if not years, presenting no greater disadvantage to the Service in this matter than in any other matter.
  16. [81]
    Although the Service acknowledges the suspension without pay will have a financial impact on Mr Radev and his family, it submits he has formally been advised he is entitled to apply for payment for recreation and long service leave while on unpaid suspension.
  17. [82]
    It is not in contention Mr Radev, having been engaged by the Service for more than fifteen years, has access to 29 days of annual leave and 112 days of long service leave. 
  18. [83]
    Mr Radev is also not excluded from seeking alternative employment while he is on unpaid suspension. 
  19. [84]
    During the hearing, the Service confirmed that, should Mr Radev succeed in the appeal of the Decision, and any other respective appeals, it would be in a position to remediate any loss of pay for the relevant period.
  20. [85]
    Conversely, the Service highlights the challenges associated with recovering excess pay from Mr Radev in the event it was successful and the accompanying costs of pursuing such amounts. It also points to its obligations to consider the public interest in deciding to suspend an employee without pay, particularly where timeframes within which an appeal will be resolved are not known.
  21. [86]
    In response to Mr Radev's submissions regarding decisions by the Service to allow other more senior employees to remain on paid suspension pending the finalisation of disciplinary matters, the Service submits those decisions were based on different facts and circumstances and were not related to the vaccination direction applicable to Mr Radev.

Consideration – Balance of Convenience

  1. [87]
    The onus is upon Mr Radev to demonstrate a proper basis for a stay which will be fair to all the parties. 
  2. [88]
    Although I have some sympathy for Mr Radev's situation and accept he will likely suffer some financial hardship if a stay is not granted, it seems he has accrued a significant amount of paid annual and long service leave, which he is not precluded from accessing. Likewise, in the event he is successful in the appeal of the Decision and any other respective appeals, the Service has confirmed it would be able to remediate any loss of pay suffered by him.
  3. [89]
    Given the limited materials or evidence before me in respect of other disciplinary matters concerning employees who have remained on paid suspension, I am not persuaded that Mr Radev has been treated differently from other employees involved in separate disciplinary processes, on account of this being a COVID-related matter. Nor am I able to conclude the Service is using its authority to suspend without pay as a punitive or coercive measure.
  4. [90]
    In assessing the balance of convenience, I am also unable to accept the argument advanced by Mr Radev that, absent a stay, the appeal may prove abortive.
  5. [91]
    On balance, I have formed the view that the balance of convenience does not favour the granting of this application.

Conclusion

  1. [92]
    To his credit, as best I can tell, Mr Radev has been honest and courteous in informing the Service of his refusal to be vaccinated and his reasons for that refusal. Although unsuccessful, Mr Radev has diligently and appropriately engaged in the avenues available to him under Direction No. 12 and the PS Act.
  2. [93]
    However, despite having accepted Mr Radev has an arguable case, for the reasons given, I do not consider he has discharged the requisite onus of establishing there is a proper basis for the granting of a stay. I am not persuaded this is an appropriate occasion on which I ought to exercise my discretion to grant a stay. Consequently, the application is dismissed.
  3. [94]
    I order accordingly.

Order

The application to stay the decision being appealed is dismissed.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[3] Industrial Relations Act 2016 (Qld) s 562B(3).

[4] Appeal notice filed 23 December 2021, Attachment A [1].

[5] Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414.

[6] Exhibit 5 – Notice of Suspension with Remuneration and Show Cause Notice for Suspension Without Remuneration dated 21 October 2021.

[7] Ibid.

[8] Exhibit 3 – Response to Show Cause Notice dated 1 November 2021; Exhibit 4 – Supplementary Response to Show Cause Notice dated 4 November 2021.

[9] Exhibit 3 – Response to Show Cause Notice dated 1 November 2021, 3.

[10] Ibid 4, 6.

[11] Ibid 4.

[12] Ibid.

[13] Ibid 5-6.

[14] Exhibit 3 – Response to Show Cause Notice dated 1 November 2021, 6

[15] Exhibit 4 – Supplementary Response to Show Cause Notice dated 4 November 2021, 1-2.

[16] Ibid 2.

[17] Ibid 2-3.

[18] Notice of Suspension without Remuneration dated 7 December 2021 attached to Appeal Notice filed 23 December 2021.

[19] [2021] QIRC 380.

[20] References in original.

[21] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 ('Alexander') 694 (Kirby P, Hope and McHugh JJA).

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid 695.

[26] Ibid.

[27] Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453, [13] (Keane JA, with whom McMurdo P at [2] and White AJA at [39] agreed).

[28] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 623 (Kitto, Taylor, Menzies and Owen JJ).

[29] State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013, [12] (O'Connor DP); BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001, [8]-[10] (O'Connor VP).

[30] State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190, [10] (O'Connor VP) ('Queensland Health').

[31] Mr Radev's Submissions filed 24 December 2021, [3].

[32] Ibid [2], citing Croney v Nand [1999] 2 Qd R 342, [33].

[33] Ibid [6].

[34] Ibid [4].

[35] Ibid.

[36] Ibid.

[37] Ibid [5].

[38] Ibid [6].

[39] Ibid [7]-[8].

[40] Ibid [11].

[41] Ibid [9].

[42] Ibid [7], [9].

[43] Ibid 10].

[44] Ibid [15].

[45] Ibid [16].

[46] Ibid [3].

[47] Alexander (n 21), 694-5.

[48] The Service's Submissions filed 24 December 2021, [4].

[49] Ibid [4]-[5].

[50] Ibid [6], citing Public Service Act 2008 (Qld) s 194(1)(bb); Industrial Relations Act 2016 (Qld) s 562B(3).

[51] Ibid [7].

[52] Ibid [8].

[53] Ibid [9].

[54] Ibid [10].

[55] Ibid [19].

[56] Ibid [12].

[57] Ibid [13].

[58] Ibid [14].

[59] Ibid [15]-[16].

[60] Ibid [16]

[61] Ibid [17], citing Alexander (n 21), 694.

[62] Ibid.

[63] Ibid [18].

[64] Queensland Health (n 30).

[65] Ibid [30], citing Alexander (n 21), 695.

[66] See Queensland Health (n 30), [12]; Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116, [21]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235, [16].

[67] Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398, 404.

[68] Appeal notice filed 23 December 2021, Attachment A [5]

[69] Ibid [15].

[70] Ibid [8].

[71] Ibid [9].

[72] Ibid [10], [13].

[73] Ibid [16].

[74] Ibid [18]-[19].

[75] Ibid [19].

[76] Ibid [22].

[77] Ibid [21].

[78] The Service's Submissions filed 24 December 2021, [8]-[10].

[79] Ibid [9].

[80] Ibid [10].

[81] Patterson v BTR Engineering (Aust) Ltd (1989) 19 NSWLR 319, 325 (Gleeson CJ); Frigo v Culhaci [1998] NSWCA 88.

[82] Exhibit 2 – Executive Briefing Note dated 20 October 2021.

Close

Editorial Notes

  • Published Case Name:

    Radev v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Radev v State of Queensland (Queensland Police Service)

  • MNC:

    [2021] QIRC 439

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    24 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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