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Chase v State of Queensland (Queensland Police Service)[2022] QIRC 140

Chase v State of Queensland (Queensland Police Service)[2022] QIRC 140

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Chase v State of Queensland (Queensland Police Service) [2022] QIRC 140

PARTIES:

Chase, Tracey

(Notifier)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

D/2021/159

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

23 March 2022

HEARING DATE:

23 March 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

In answer to the question for arbitration, namely: Does Senior Constable Chase have a lawful entitlement to be paid sick leave as from the date of her suspension being 19 November 2021?

The answer is: 'No.'

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – notification of industrial dispute – Notifier a Senior Constable employed in the Queensland Police Service – Notifier commenced period of paid personal leave on the basis of medical certification that she was unfit for duty – Notifier subsequently suspended without salary and allowances as from 19 November 2021 – Notifier contends she remained entitled to paid personal leave despite her suspension without salary and allowances because of medical certification of her continued unfitness for duty – whether Commission has jurisdiction to arbitrate dispute given ss 6.1, 9.1A and 9.3 of the Police Service Administration Act 1990 – Commission has jurisdiction to arbitrate dispute – question for arbitration is whether Notifier has a lawful entitlement to be paid sick leave from 19 November 2021 – Notifier not entitled to paid personal leave following suspension without salary and allowances – answer to question for arbitration is: 'No.'

LEGISLATION:

Fair Work Act 2009, s 96, s 97 and s 524

Industrial Relations Act 1999, s 17, s 40 and s 41

Police Service Administration Act 1990, s 4.8, s 4.9, s 6.1, s 6.3, s 7.4, s 9.1A and s 9.3

Queensland Police Service Employees Award - 2016, cl 21

CASES:

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656; (2020) 295 IR 225

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205; (2020) 282 FCR 130

General Ruling - Sick Leave (1972) 80 QGIG 732

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 297 IR 338

Vanzwan v State of Queensland (Queensland Police Service) [2021] QIRC 438

APPEARANCES:

Mr J. McDonald of Sibley Lawyers on behalf of and with Ms T. Chase, the Notifier.

Mr G. Patterson of the State of Queensland (Queensland Police Service) for the Respondent.

Reasons for decision (ex tempore)

Introduction

  1. [1]
    The background facts to the industrial dispute between the parties is not in dispute.
  1. [2]
    Senior Constable Tracey Chase ('SC Chase') is a member of the Queensland Police Service ('the Service').
  1. [3]
    On 7 September 2021, pursuant to s 4.9 of the Police Service Administration Act 1990 ('the PSAA'), 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 of the Service ('Direction No. 12').
  1. [4]
    SC Chase is subject to Direction No. 12.
  1. [5]
    SC Chase applied for an exemption from the application of Direction No. 12 on the grounds of medical and other exceptional circumstances, however, on 1 October 2021, SC Chase was advised that her exemption application was denied.
  1. [6]
    On 10 September 2021, SC Chase took a day of paid personal leave because of the stress she was experiencing in the workplace. On 17 September 2021, SC Chase attended a psychologist about the stress and anxiety she was experiencing.
  1. [7]
    On 5 October 2021, SC Chase commenced a period of personal leave and a doctor's certificate was provided by her certifying that she was unfit for a period of six weeks duty commencing from 5 October 2021.
  1. [8]
    On 8 October 2021, SC Chase was issued with a suspension notice entitled 'Suspension Notice and Show Cause Notice for Suspension without Salary and Allowances' ('the 8 October notice'). The effect of the 8 October notice was that SC Chase was suspended with salary and allowances.
  1. [9]
    It seems that despite her suspension with salary and allowances from that date, SC Chase inadvertently received some paid sick leave, but that the paid sick leave debited from her accrued sick leave entitlement during that period was being re‑credited by the Service.
  1. [10]
    SC Chase provided a response to the 8 October notice on 15 October 2021.
  1. [11]
    By notice dated 11 November 2021, Acting Assistant Commissioner Virginia Nelson informed SC Chase of her decision that, as from 19 November 2021, SC Chase was suspended without salary and allowances ('the November notice').
  1. [12]
    On 12 November 2021:
  1. SC Chase received an email directing her to attend a disciplinary interview on 17 November 2021 about failing to comply with Direction No. 12; and
  2. SC Chase provided a further medical certificate certifying her unfitness for duty for a further 3 weeks.
  1. [13]
    By notice of industrial dispute filed on 3 December 2021 pursuant to ch 6 of the Industrial Relations Act 2016 ('the IR Act'), SC Chase notified the Commission that an industrial dispute existed between her and the Service because her request sent on 16 November 2021 to the Service, that she continue to receive personal leave entitlements whilst suspended, was refused ('the industrial dispute').
  1. [14]
    The industrial dispute was unable to be resolved by conciliation and the industrial dispute has been referred to me for arbitration.
  1. [15]
    The agreed question for arbitration in this matter is:

Does Senior Constable Chase have a lawful entitlement to be paid sick leave as from the date of her suspension, being 19 November 2021?

  1. [16]
    SC Chase contends that she has an entitlement to be paid sick leave during the period of her suspension without salary or allowances, namely, from 19 November 2021.
  1. [17]
    The Service not only contends that SC Chase does not have a lawful entitlement to be paid sick leave as from the date of her suspension without salary or allowances, it also contends that the Commission, by virtue of the combined effect of s 9.1A and s 9.3(1)(c) of the PSAA, does not have jurisdiction to arbitrate the industrial dispute.
  1. [18]
    The questions for my determination are:
  1. does the Commission have jurisdiction to arbitrate the industrial dispute? and, if so;
  2. does SC Chase have a lawful entitlement to be paid sick leave as from the date of her suspension without salary or allowances, being 19 November 2021?

Does the Commission have jurisdiction to arbitrate the industrial dispute?

  1. [19]
    It is not in dispute that the decision to suspend SC Chase was made pursuant to s 6.1(1)(a)(ii) of the PSAA. That section relevantly provides that if it appears to the Commissioner, on reasonable grounds, that an officer is liable to disciplinary action under s 7.4 of the PSAA, the Commissioner may suspend the officer from duty.
  1. [20]
    It is also not in dispute that the decision to suspend SC Chase without salary or remuneration was made pursuant to s 6.3(1) of the PSAA. That section provides that an officer suspended from duty under s 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances, had the suspension not occurred, unless the Commissioner otherwise determines in a particular case. The Commissioner's delegate in this case, Acting Assistant Commissioner Nelson, determined that, as from 19 November 2021, SC Chase would be suspended without salary or allowances.
  1. [21]
    The Service contends that the Commission does not have jurisdiction to arbitrate the industrial dispute which it contends, properly characterised, is a review of the decision to suspend SC Chase without remuneration. The Service contends that such a decision may only be reviewed under pt 9 of the PSAA.
  1. [22]
    Section 9.3(1) of the PSAA relevantly provides:

9.3 Application for review

  1. (1)
    A police officer who is aggrieved by a decision about-
  1. (a)
    the selection of an officer for appointment to a police officer position, whether on promotion or transfer, if the selection procedures mentioned in section 5.2(2)(a) were required to be complied with; or
  1. (b)
    the selection of an officer for transfer to a police officer position, if the selection procedures mentioned in section 5.2(2)(a) were not required to be complied with; or
  1. (c)
    suspension or standing down of the officer under section 6.1; or
  1. (d)
    another decision prescribed by regulation as open to review under this part;

may apply to have the decision reviewed by a commissioner for police service reviews.

  1. [23]
    Section 9.1A of the PSAA provides:

9.1A  Relationship with Industrial Relations Act 2016

The Industrial Court and the Industrial Relations Commission do not have jurisdiction in relation to a matter that has been, is being, or may be reviewed under this part even though it may be, or be about, or arise out of, an industrial matter within the meaning of the Industrial Relations Act 2016.

  1. [24]
    The Service submits that because the decision at the heart of the industrial dispute is a decision to suspend SC Chase pursuant to s 6.1 of the PSAA, being a matter that may be reviewed by a commissioner of police service reviews pursuant to pt 9 of the PSAA, then, by the operation of s 9.1A of the PSAA, the Commission does not have jurisdiction in relation to the matter, notwithstanding that the matter is an industrial matter.
  1. [25]
    In support of its position, the Service relies upon the decision of Vice President O'Connor in Vanzwan v State of Queensland (Queensland Police Service) ('Vanzwan').[1]
  1. [26]
    In that case, the question for arbitration was:

Did the State of Queensland (Queensland Police Service) act lawfully or reasonably, and in accordance with the provisions of the Queensland Police Service Certified Agreement 2019 ('EB'), by refusing to allow the Applicant a further period of time to comply with a direction to respond to a show cause notice regarding suspension without pay, in circumstances where the Applicant had provided a medical certificate certifying that she was suffering from a medical condition?

  1. [27]
    Vice President O'Connor held that what was before the Commission was a determination regarding whether the Commissioner acted lawfully or reasonably, and in accordance with the provisions of the Queensland Police Service Certified Agreement 2019, by refusing to allow the employee a further period of time to comply with a direction to respond to a show cause notice regarding suspension without pay.[2]
  1. [28]
    Vice President O'Connor, in considering the Service's contention, that by virtue of the application of pt 9 of the PSAA, the Commission did not have jurisdiction to arbitrate the industrial dispute referred to it, held that the matter the subject of the grievance went to the steps the Service took in the exercise of the power under s 6.1 of the PSAA, in that the grievance (the subject of the industrial dispute) was '… a decision about a suspension or standing down of an officer under section 6.1 of the' PSAA.[3]
  1. [29]
    His Honour then held:
  1. [48]
    Moreover, it is clear by operation of s 9.1A of the PSA Act, that the Commission does not have jurisdiction in relation to a matter that has been, is being, or may be reviewed under part 9 even though it may be, or be about, or arise out of, an industrial matter. In coming to that view, I consider that the PSA Act reveals a clear intention by Parliament to render decisions made by the Commissioner under s 6.1 of the PSA Act to suspend a police officer immune from review by the Commission, notwithstanding the conferral of jurisdiction on the Commission by the IR Act in broad and general terms to deal with an industrial matter.
  1. [49]
    In my opinion, Parliament has also manifested the clear intention that, within the statutory parameters as identified in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors, the Commissioner has control over the police service.
  1. [50]
    An aggrieved police officer has appeal rights under the PSA Act.
  1. [51]
    For the reasons advanced above, I am of the view that the Commission does not have the jurisdiction to entertain the question submitted for arbitration.
  1. [30]
    SC Chase submits that the relief she seeks in the arbitration of the industrial dispute does not include disturbing the Service's decision to suspend her.
  1. [31]
    In this regard, in written submissions, SC Chase, submitted:
  1. Respectfully, by raising the jurisdictional objection the Respondent misconceives the basis of the Application, and the question for arbitration.
  1. The dispute concerns, fundamentally, the entitlements of a person who provides a certificate certifying their unfitness, and whether their entitlement to personal leave can be overridden by a commissioner's power to suspend without salary and allowances.
  1. In the Applicant's submission, this is a critical question to be resolved by the Commission and has significant consequences on the rights and obligations of the Respondent and its employees moving forward, as well as the Respondent's ability to limit the rights enjoyed by employees under the QES.
  1. A request for payment of personal leave is not a matter that can be reviewed by the Review Commissioner, pursuant to s 9.3 of the PSAA. Indeed, the Applicant's only ability to ensure her rights as an employee to personal leave are upheld, are through the mechanism of the QIRC.
  1. The dispute is, by its very nature an industrial matter within the meaning of s 9 of the IR Act, given it relates to the privileges, rights and functions of employers and employees within the meaning of the section. Accordingly, the Commission has jurisdiction to hear the matter in accordance with s 448(1) of the Act.
  1. For the reasons outlined above, the jurisdiction of the Commission to hear and decide the matter, is not otherwise excluded by the PSAA.
  1. [32]
    In its submissions in reply, the Service, relying on the decision in Vanzwan, submitted that even if a matter has commenced as an industrial matter, if it relates in any way to a matter that is reviewable under the PSAA, then the Commission does not have jurisdiction to hear and determine that matter. Specifically, the Service submits that any decision that would award the payment of monies during a period of suspension without remuneration would disturb that suspension.
  1. [33]
    I cannot accept the submissions of the Service.
  1. [34]
    The subject matter of the industrial dispute as notified by SC Chase, is, in my opinion, a matter that cannot be reviewed under pt 9 of the PSAA.
  1. [35]
    Section 9.3(1)(c) of the PSAA provides that a police officer who is aggrieved by a decision about suspension or standing down of the officer under s 6.1 '… may apply to have the decision reviewed by a commissioner for police service reviews.' Clearly, this Commission has no jurisdiction over such a matter.
  1. [36]
    However, the matter the subject of SC Chase's grievance is not the decision about her suspension under s 6.1 of the PSAA. It is about a decision made under s 6.3(1) of the PSAA to suspend her without salary or allowances and whether that decision precludes her from accessing paid personal (sick) leave as provided for in cl 21 of the Queensland Police Service Employees Award - 2016 ('the Award'). Clause 21 of the Award provides that personal leave is provided for in div 6 of the Queensland Employment Standards ('QES') which is contained in ch 2, pt 3 of the IR Act.
  1. [37]
    For these reasons, the matter in Vanzwan is different to the matter the subject of SC Chase's notice of industrial dispute. For the same reasons, I cannot accept the Service's submission that any decision that would award the payment of monies during a period of suspension without remuneration would disturb that suspension. The only matter that cannot be the subject of the jurisdiction of the Commission is a review of the decision to suspend SC Chase under s 6.1 of the PSAA. In my opinion, on the plain words used in s 9.3(1)(c) of the PSAA, a decision about SC Chase's suspension without remuneration or salary under s 6.3 of the PSAA cannot be reviewed under pt 9 of the PSAA.
  1. [38]
    For these reasons, the dispute is properly before the Commission for arbitration.

Is SC Chase entitled to paid personal (sick) leave while suspended without salary or allowances?

  1. [39]
    SC Chase, in general, submits that:
  1. section 6.3 of the PSAA does not enable her to be suspended without access to personal (sick) leave;
  2. this is because sick leave is 'an entitlement' and does not meet the description of 'salary or allowances' within the meaning of s 6.3(1) of the PSAA; and
  3. in any event, s 4.8(4)(a) and (b) of the PSAA provides that in discharging the prescribed responsibility, the Commissioner is to comply with all relevant industrial instruments and laws including the QES which provides for paid personal (sick) leave.
  1. [40]
    More specifically, SC Chase submits that:
  1. the QES confers minimum entitlements upon employees which are conditional on certain matters being met, it does not require any authority from the employer and there is no express provision prohibiting sick leave payment whilst suspended; and
  2. the QES cannot be displaced by other laws or industrial instruments.
  1. [41]
    The Service submits that:
  1. during periods of suspension (whether with or without remuneration) an employee is not required to undertake any work for the employer and therefore is not required to provide evidence of any absence for any purposes;
  2. an entitlement to sick leave under the Award is conditional on the employee being able to demonstrate to the employer they are unable to work because of an illness or injury and, under the Act, an entitlement to sick leave is conditional on the employee promptly notifying the employer of any illness that will cause the employee to be absent;
  3. SC Chase is suspended from duty pursuant to s 6.1 of the PSAA, there is no work or duty for her to perform and there is no requirement for her to attend for duty; and
  4. an employee cannot be on both approved leave and suspended under the PSAA at the same time.
  1. [42]
    In response to the Service's submissions, SC Chase submits that:
  1. the entitlement to sick leave is not reliant on there being work or duties for the employee to perform and the entitlement is for a certain number of days per year, with a day for an employee being one fifth of the employee's ordinary hours of work;
  2. whilst she (SC Chase) was relieved of her duties and powers at common law, the employment relationship between her and the State of Queensland did not cease, and, as such, she is still obliged to follow all lawful and reasonable directions of her employer, and if the suspension was at any time revoked she would '… have been required to attend for duty unless she had a reasonable excuse';
  3. SC Chase was on approved leave prior to her suspension, and therefore the suspension was of no effect on her;
  4. section 6.3 of the PSAA, nor any other power of the Commissioner, enables SC Chase to be suspended without access to personal leave which is clear from the wording of s 6.3 of the PSAA;
  5. even if the power of the Commissioner could be so construed, then the operation of s 4.8(4)(a) and (b) of the PSAA requires the Commissioner to comply with all relevant industrial instruments and laws in exercising her powers;
  6. section 17 of the IR Act provides that the QES has effect despite any inconsistency with another law of the State; and
  7. the entitlement to sick leave in the QES and the Award is not precluded by suspension and by interpreting the Commissioner's powers to extend to preventing members of the Service from accessing personal leave whilst suspended, it would be inconsistent with the conditions of personal leave outlined in the QES, and also the industrial instruments.
  1. [43]
    In respect of SC Chase's submission that because she was on approved sick leave prior to her suspension, and that therefore the suspension was of no effect on her, SC Chase referred me to the decision of the Full Court of the Federal Court of Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited.[4]
  1. [44]
    That case considered an appeal from a decision of a single judge of the Federal Court of Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited.[5] The decision was that employees who were lawfully stood down pursuant to s 524 of the Fair Work Act 2009 were not then entitled to access leave entitlements including paid personal/carer's leave pursuant to s 96 of the Fair Work Act 2009. In the decision, Flick J relevantly stated:
  1. [35]
    In circumstances where an employee has been lawfully stood down, and thus in circumstances where there is no work which the employee can perform and thereby derive income, an employee is not entitled to access the leave entitlements conferred by ss 96 or 105. To enable the employee to do so would go against the very object and purpose of conferring those entitlements - namely an entitlement to be relieved from the work which the employee was otherwise required to perform. If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost. Conversely, to expose the employer to a liability to pay leave entitlements after lawfully having invoked the power to stand down an employee would defeat one of the two principal purposes of standing the employee down - namely, to protect the employer against such claims.
  1. [36]
    Such a conclusion is founded upon an understanding of the object and purpose of conferring the leave entitlements in the form of personal/carer’s leave and is consistent with one of the principal purposes sought to be achieved by standing down an employee.
  1. [45]
    On appeal to the Full Court, the majority, consisting of Rares and Colvin JJ, did not disturb that conclusion.[6] However, SC Chase drew my attention to the decision of the majority, namely:
  1. [78]
    Although certain examples were advanced to illustrate how the competing constructions might apply in different instances, the parties were not joined as to any distinction to be drawn as to those cases where an employee was already on leave when the stand down occurred. An employee who is already on annual leave, PPC leave or some other form of leave that will last beyond the time that the employer exercises the power to stand down employees may be in a different category. Such employees have exercised an accrued entitlement to take paid (or unpaid) leave by steps taken or for reasons in existence before the stand down. It may be that such employees cannot be stood down because they have already been released from their obligation to present for work for the duration of the leave that has accrued as a result of prior events. However, it is not necessary to deal with such matters because the issue in respect of which the declaration was sought concerned whether there was an ongoing entitlement to take PPC leave or compassionate leave during the stand down, that is by reason of events that occur during the stand down.
  1. [46]
    SC Chase contended that this part of the judgment of the majority of the Full Court supported her contention that, because she was on approved sick leave prior to her suspension, the suspension was of no effect on her.
  1. [47]
    I cannot accept that submission. First, the majority of the Full Court did not finally determine that employees who have exercised an accrued entitlement to take paid personal/carer's leave for reasons in existence before the stand down cannot be stood down. That was not the case before them. No determinative consideration was given to that issue.
  1. [48]
    Secondly, the issues and subject matter of the decision of the Full Court were different; it concerned the construction of ss 524 and 525 of the Fair Work Act 2009 and the lawful stand down of employees where, due to reasons beyond the control of the employer, the employees cannot usefully be employed. The purpose of the stand down provisions in the Fair Work Act 2009 are to relieve the employer, in such circumstances, from paying wages and to protect employees from what would be their dismissal.[7] The reason for the suspension of SC Chase by Acting Assistant Commissioner Nelson is because it appeared to Acting Assistant Commissioner Nelson, on reasonable grounds, that SC Chase is liable to disciplinary action under pt 7 of the PSAA. The reason that SC Chase was not at work from 8 October 2021 was not because of any matter outside the control of the Service, but due to a specific decision made by Acting Assistant Commissioner Nelson to suspend SC Chase because of the view formed by Acting Assistant Commissioner Nelson about SC Chase's conduct and that SC Chase is liable for disciplinary action. It is not disputed by SC Chase that such suspension action is for the protection of the public.
  1. [49]
    For these reasons, and other reasons I will now give, I am not persuaded that the passage from the decision of Rares and Colvin JJ referred to me by SC Chase is determinative of the question for arbitration being answered in the affirmative.
  1. [50]
    Clause 21 of the Award provides:

21.  Personal leave

  1. (a)
    Personal leave is provided for in Division 6 of the QES and covers:
  1. (i)
    sick leave;
  2. (ii)
    carer's leave;
  1. (iii)
    bereavement leave; and
  1. (iv)
    cultural leave.

…

  1. (b)
    Clauses 21.1 and 21.2 supplement the QES.
  1. [51]
    In the 1972 decision of the Full Bench of the Industrial Conciliation and Arbitration Commission of Queensland in General Ruling - Sick Leave, it was held that the principle underlying sick leave was to protect employees against the hardships associated with lack of earnings during periods of sickness.[8]
  1. [52]
    More recently, in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ('Mondelez'),[9] Gageler J relevantly held, by reference to long standing authority, in respect of the entitlement to take paid personal/carer's leave within the meaning of s 97 of the Fair Work Act 2009:
  1. [77]
    By operation of s 97(a) of the Fair Work Act, paid personal/carer’s leave can be taken “because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee”. In that respect, paid personal/carer’s leave is the modern equivalent of what used to be known as “sick pay” or paid “sick leave”: “the right of an employee to receive his ordinary wages in respect of a period during which he is unable, by reason of sickness or accident, to perform his duties”. Sickness being “a misfortune to which all are subject”, sick leave protects employees against the hardship associated with the loss of earnings they would have expected to earn had they been well.[10]
  1. [53]
    Section 41(1)(a)(i) of the IR Act relevantly provides that an employee's entitlement to sick leave under s 40 of the IR Act is conditional upon the employee notifying the employer of any illness that will cause the employee to be absent from work.
  1. [54]
    Clause 21.1(b)(v) of the Award, which provides for sick leave for police officers, relevantly provides that the entitlement to paid sick leave subject to the condition of the police officer promptly notifying '… of their illness or injury and of the approximate period during which they will be unable to work prior to the commencement of the shift.'
  1. [55]
    Having regard to the s 41(1)(a)(i) of the IR Act and to cl 21.1(b)(v) of the Award, there is no reason to form the view that paid personal sick leave under the QES and under the Award has any different purpose to that expressed in the decision of the Full Bench of the Industrial Conciliation and Arbitration Commission of Queensland in General Ruling - Sick Leave and in the decision of Gageler J in Mondelez. That is, the purpose of paid sick leave under the IR Act and under the Award concerns the right of an employee to receive his or her ordinary wages in respect of a period during which he or she is unable, by reason of sickness or accident, to perform his or her duties.
  1. [56]
    In the present case, as from 19 November 2021, the real reason SC Chase is not at work is not because of illness. It is because of the decision of Acting Assistant Commissioner Nelson dated 11 November 2021, pursuant to the combined effect of s 6.1(1)(a)(ii) and s 6.3(1) of the PSAA, to suspend SC Chase without salary or allowances.
  1. [57]
    That is to say, the real reason SC Chase, from 19 November 2021, was and remains (as I understand it) not at work, is not because of illness, but because of her suspension without salary or allowances.
  1. [58]
    In those circumstances, SC Chase can have no legal entitlement under the combined effect of s 40 of the IR Act and cl 21 of the Award to paid personal sick leave from that date whilst her suspension without salary or allowances continues.
  1. [59]
    SC Chase did receive some paid personal sick leave during the period of time she was suspended with salary and allowances, but that was due to inadvertence.
  1. [60]
    The submission made by SC Chase about the obligation of the Commissioner, in discharging her prescribed responsibility to comply with all relevant industrial instruments and laws that provide for paid sick leave, does not assist SC Chase.
  1. [61]
    For the reasons I have given, the Commissioner, or more properly, the Commissioner's authorised delegate, in making the decision to not pay SC Chase paid sick leave as from 19 November 2021 while she remains suspended without salary and allowances, is not acting inconsistently with the QES and the Award in that, in the circumstances, SC Chase does not have an entitlement to paid personal sick leave.
  1. [62]
    Further, to permit SC Chase to access paid sick leave during a period of paid or unpaid suspension would defeat the purpose of the combined effect of s 6.1 and s 6.3 of the PSAA which, relevantly to the present case, is to remove a police officer from duty where a view has been formed by the Commissioner, or her delegate, on reasonable grounds, that the officer is liable for disciplinary action. Such action is for the protection of the public. The purpose of the combined effect of those provisions is inconsistent with the purpose of paid sick leave as I have referred to above.
  1. [63]
    SC Chase also raises the issue that such a result is inconsistent with the fact that Acting Assistant Commissioner Nelson indicated to her in the November notice that SC Chase may apply for payment of recreational and long service leave entitlements accrued prior to the effective date of her suspension without salary and allowances. The Service indicated in its submissions that such an invitation was for the payment of such entitlements, not to take such leave. Whether or not such a position taken by the Service is consistent with the purpose of the combined effect of s 6.1 and s 6.3 of the PSAA, such an invitation does not detract from the fact that, for the reasons I have given above, as from 19 November 2021, while SC Chase remains suspended without salary or allowances, she has no entitlement to paid sick leave.

Conclusion

  1. [64]
    The question for arbitration in this case is whether, as from 19 November 2021, while SC Chase was suspended without salary or allowances, she was entitled, from that date, to be paid sick leave. For the reasons I have given, SC Chase has no such entitlement.

Order

  1. [65]
    I make the following order:

In answer to the question for arbitration, namely: Does Senior Constable Chase have a lawful entitlement to be paid sick leave as from the date of her suspension being 19 November 2021?

The answer is: 'No.'

Footnotes

[1] [2021] QIRC 438 ('Vanzwan').

[2] Ibid [45].

[3] Vanzwan (n 1) [47].

[4] [2020] FCAFC 205; (2020) 282 FCR 130 ('Qantas appeal').

[5] [2020] FCA 656; (2020) 295 IR 225 ('Qantas').

[6] Qantas appeal (n 4), [74]-[79].

[7] Qantas (n 5) [19].

[8] General Ruling - Sick Leave (1972) 80 QGIG 732, 734 (Commissioner Self, Commissioner Anderson and Commissioner Gibson).

[9] [2020] HCA 29; (2020) 297 IR 338.

[10] Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Chase v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Chase v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 140

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    23 Mar 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656
2 citations
Jump To
Cite 1 - [2020] FCA 656
Cite 2 - [2020] FCA 656
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (2020) 295 IR 225
2 citations
Jump To
Cite 1 - (2020) 295 IR 225
Cite 2 - (2020) 295 IR 225
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205
2 citations
Jump To
Cite 1 - [2020] FCAFC 205
Cite 2 - [2020] FCAFC 205
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (2020) 282 FCR 130
2 citations
Jump To
Cite 1 - (2020) 282 FCR 130
Cite 2 - (2020) 282 FCR 130
General Ruling - Sick Leave (1972) 80 QGIG 732
2 citations
Jump To
Cite 1 - (1972) 80 QGIG 732
Cite 2 - (1972) 80 QGIG 732
Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29
2 citations
Jump To
Cite 1 - [2020] HCA 29
Cite 2 - [2020] HCA 29
Mondelez Australia Pty Ltd v Automotive (2020) 297 IR 338
2 citations
Jump To
Cite 1 - (2020) 297 IR 338
Cite 2 - (2020) 297 IR 338
Vanzwan v State of Queensland, (Queensland Police Service) [2021] QIRC 438
2 citations
Jump To
Cite 1 - [2021] QIRC 438
Cite 2 - [2021] QIRC 438

Cases Citing

Case NameFull CitationFrequency
Churchward v State of Queensland (Department of Education) [2025] QIRC 64 citations
1

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