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  4. Smith v State of Queensland (Queensland Police Service) - [2022] QIRC 165

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Smith v State of Queensland (Queensland Police Service)[2022] QIRC 165

Smith v State of Queensland (Queensland Police Service)[2022] QIRC 165

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Queensland Police Service) [2022] QIRC 165

PARTIES:

Smith, Sarah

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2022/222

PROCEEDING:

Public Service Appeal - Appeal against decision about suspension without pay

DELIVERED ON:

20 May 2022

HEARING DATE:

On the papers

MEMBER:

Merrell DP

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 4 March 2022 and on 1 April 2022 and Respondent's written submissions filed on 21 March 2022.

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a public service employee in the Queensland Police Service – cl 7 of the Queensland Police Service Instrument of Commissioner's Directive No. 12 required the Appellant to have received a first dose of a COVID‑19 vaccine by 4 October 2021 – Appellant applied for an exemption from compliance with Direction – exemption not granted – Appellant suspended without remuneration – appeal against decision to suspend the Appellant without remuneration – whether decision was fair and reasonable – decision was fair and reasonable – decision suspending the Appellant without remuneration confirmed

LEGISLATION:

Industrial Relations Act 2016, s 562B and s 562C

Police Service Administration Act 1990, s 4.8 and s 4.9

Public Service Act 2008, s 137

Queensland Police Service Instrument of Commissioner's Directive No. 12, cl 6, cl 7 and cl 8

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Reasons for Decision

Introduction

  1. [1]
    Ms Sarah Smith is employed by the State of Queensland as a Major Incident and Problem Management Officer, classification AO6, in the Queensland Police Service ('the Service'). Ms Smith works in the Digital and Frontline Services Division of the Service.
  1. [2]
    On 7 September 2021, the Commissioner of the Service, pursuant to ss 4.8 and 4.9 of the Police Service Administration Act 1990, made the Queensland Police Service Instrument of Commissioner's Direction No. 12 ('the Direction').
  1. [3]
    The combined effect of cls 6 and 7 of the Direction required certain employees to have received the first dose of a COVID‑19 vaccine by 4 October 2021 and a second dose of a COVID‑19 vaccine by 24 January 2022. By cl 8 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption.
  1. [4]
    It is not disputed that the Direction, by its terms, applied to Ms Smith.
  1. [5]
    By letter dated 24 January 2022, Acting Assistant Commissioner Peter Brewer of the Ethical Standards Command of the Service gave notice to Ms Smith that she was suspended without remuneration as from 28 January 2022 because she had not received a first dose of a COVID‑19 vaccine by 4 October 2021 ('the decision').
  1. [6]
    By appeal notice filed on 8 February 2022, Ms Smith, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision.
  1. [7]
    The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to decide whether the decision appealed against was fair and reasonable.[1] The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.[2]
  1. [8]
    For the reasons that follow, the decision was fair and reasonable.

The decision

  1. [9]
    In his decision, Acting Assistant Commissioner Brewer relevantly stated:

My decision

In accordance with section 137(1)(b) of the Act, I reasonably believe that you are liable to discipline under a disciplinary law, namely Chapter 6 of the Act, in relation to the above allegation.

I confirm that no adverse finding or determination has been made against you in relation to the allegation at this time.

Having considered all the material before me, in accordance with section 137(4)(b) of the Act, I consider it is not appropriate for you to be entitled to normal remuneration during your suspension, having regard to the nature of the discipline to which I believe you are liable for the following reasons:

  1. (i)
    Under section 4.8 of Police Service Administration Act 1990 (PSA Act) the Commissioner is responsible for (amongst other things) the efficient and proper administration, management and functioning of the Queensland Police Service (Service) in accordance with law. Relevantly, this includes compliance with the Work Health and Safety Act 2011 (WHS Act) which provides that the Commissioner has a duty, so far as is reasonably practicable, to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service (see s 19).
  1. (ii)
    The allegation against you is very serious and in direct conflict with the functions, responsibilities and organisational values of the Service, the role and responsibilities of a member of the Service and community expectations. Your alleged failure to comply with the Direction impacts the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in section 4.8 of the PSA Act and the Commissioner's obligations under the WHS Act.
  1. (iii)
    The Service is a publicly funded organisation with statutory financial accountability obligations, including to use public resources in a responsible and effective manner. There is also a public interest in maintaining the reputation of and the public's trust in the Service and the public service more generally, including in respect to its compliance with its financial accountability obligations. This is especially important in the current economic climate and in light of the seriousness of the allegation against you. I do not consider it to be an appropriate use of public resources, or in the public interest, for you to remain suspended with remuneration while the allegation against you remains outstanding.
  1. (iv)
    In relation to your response, I note in particular:
  1. (a)
    am satisfied you have been afforded natural justice. Relevantly, the Notice provided details of the action I was considering taking and the relevant considerations in relation to that decision and afforded you an opportunity to show cause why you should not be suspended without pay before any such decision was made. Subsequently, you provided your response to the Notice which I have considered in making my decision regarding your suspension without remuneration.
  1. (b)
    I note your submissions as to the effect a decision to suspend you without remuneration might have on your private interests, namely that removal of your remuneration will cause immediate hardship for you. I have carefully considered your submissions. However, while I acknowledge your situation, I am not persuaded your private interests outweigh those of the Service and the public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally, including in respect to compliance with the Service's financial accountability obligations, particularly given the seriousness of the allegation against you.
  1. (c)
    I note your submissions concerning the vaccination's safety. You stated that the Direction/s impose an irreversible medical procedure and removes your bodily autonomy. You state you requested and were denied the provision of details over the safety of the vaccination, the liability of the QPS in the event of adverse reaction, the risk assessment performed and the Material Safety Data Sheets. You stated you were subsequently unable to provide informed consent to receive the vaccination. These are not issues for me to determine in the discretionary exercise I have in this matter. However, one of the considerations I do have is to assess the strength of evidence in the allegations against you, and I find the case against you appears to be compelling.
  1. (d)
    I note you state you state [sic] that the protracted nature of the suspension process has had a significant negative impact on your mental health and wellbeing. As you were previously advised, a Senior Psychologist/Social Worker is available to all Service employees. I encourage you to reach out for assistance through your contact officer or via the QPS internet (https:wellbeing.ourpeoplematter.com.au).
  1. (e)
    I note your submissions relating to your work history and acknowledge your reference attesting to this.
  1. (f)
    Discuss any steps the employee has taken to become vaccinated and/or provide evidence of vaccination and explain why the decision maker considers these steps to not justify or warrant the employee's continued suspension with remuneration.
  1. (g)
    In your response you say your IT access was removed on 6 January 2022 prior to receiving your Notice and co-workers advised you that you were suspended by the Vaccination Exemption Committee (VEC). You stated this caused you extreme distress, humiliation and represents a breach of confidentiality. You will note that the Notice was dated 5 January 2022 and it is unfortunate the Notice was not provided to you on that day.
  1. (h)
    I have also considered your submission that you have successfully worked remotely over the past 22 months. However, as you indicated within your submission, there are occasions from time to time where you are required within the workplace. I accept during this pandemic that large portions of the workforce in Queensland, including members of the Service, conducted their duties in alternative ways such as working remotely during lockdowns. However, the state is no longer in lock down and is transitioning into more normal pre-pandemic functioning. Both before your suspension with pay, and before determining to suspend you without pay, I gave careful consideration to all reasonable alternatives. On both occasions I have determined that in the circumstances suspension is the appropriate option.
  1. (v)
    Due to the nature and seriousness of your alleged conduct I consider your continued suspension with remuneration would be inappropriate and inconsistent with the public interest. In order to protect the reputation of the Service and being mindful of the efficient and proper administration, management and functioning of the Service I consider it is necessary to discontinue your remuneration. As such, I find you have not shown cause why your suspension should not be without remuneration.

In accordance with sections 137(1)(b) and 137(4) of the Act and the Human Resource Delegations and Approval Authorities Schedule you are hereby suspended from duty without remuneration effective from midnight on 28 January 2022 until 24 June 2022, unless cancelled earlier.

Suspension without remuneration

Your suspension with remuneration imposed by me on 5 January 2022 shall continue until midnight on 28 January 2022 at which time your suspension without remuneration will take effect and remain in force until 24 June 2022, unless cancelled earlier.

Ms Smith's submissions

  1. [10]
    In her principal written submissions, Ms Smith contends that the decision to suspend her without remuneration was not fair and reasonable because:
  • she has proven herself to be a dedicated and diligent employee of the Service, working in substantive positions classified at the AO4, AO5 and AO6 levels and acting in positions classified at the AO7 and AO8 levels at her usual place of work as well as outside of her usual place of work; and
  • she has worked entirely remotely for the two years prior to her suspension, formal arrangements or requirements for her to return to the workplace have not been implemented in her usual workplace and while ordinarily, she works closely with members of all the Emergency Services, in the time she has been working remotely, she has not come into physical or close contact with any member of the Emergency Services or members of the public.
  1. [11]
    As a consequence of the above, Ms Smith contends that reasonable alternative working arrangements had not been adequately considered in the decision to suspend her without remuneration as required by s 137(3) of the PS Act.

The Service's submissions

  1. [12]
    In its written submissions, the Service submitted that:
  • in June 2021, the Acting Director of the ICT Operations of the Service, quoting information released from the Public Service Commission and the Chief Operating Officer of the Public Safety Business Agency, required all employees in the ICT Frontline and Digital Services to return to the workplace unless the employee had a Flexible Workplace Agreement;
  • Ms Smith applied for a Flexible Workplace Agreement, that application was rejected and she was required to return to work; and
  • Acting Assistant Commissioner Brewer's decision deals with these matters and explains why alternative arrangements of working from home were considered and rejected in respect of Ms Smith.
  1. [13]
    The Service then submitted:
  1. The Appellant also acknowledges at paragraph (5) of their submission that:

My role certainly works closely with members of all Emergency Services including the QPS...

This acknowledgement, together with the requirement for employees to return to the work place from the PSC and the Department, substantiates the decision to suspend the Appellant who would have known that they were required to re-enter the workplace to undertake their role.

  1. The Appellant at paragraph (21) reiterates her contention that remote working arrangements were in place and therefore suspension without pay is a punishment. This is converse to the truth that continuously working from home was no longer and is no longer available with employees required to re-engage with the work place regularly.
  1. The Appellant fails to appreciate the nature and seriousness of the allegation against her despite this being outline [sic] in the written decision of 24 January 2022 at page 3 that:

(a)  The allegation against you is very serious and is in direct conflict with the functions, responsibilities, and organisational values of the Service, the role and responsibilities of a member of the Service and community expectations.

  1. The Respondent submits that nothing in the Appellant's submission has substantiated any reasonable excuse for the Appellant not to comply with the lawful direction.
  1. The Respondent contends that the decision maker has taken action in accordance with the provisions of the PS Act and the decision to place the Appellant on suspension without normal remuneration is one that is open to the decision maker following consideration of the relevant factors set out in the PS Act and the Directive. The suspension of an employee under section 137(1)(b) and section 137(4) of the PS Act is on the basis that the employee is 'liable to discipline.'
  1. The Respondent submits that natural justice has been provided and the Appellant has been given a fair hearing. The Respondent also submits that the decision maker has provided well founded and formed reasons for the decision to suspend the Appellant without pay. The allegation against the Appellant is serious and the evidence compelling.

Ms Smith's submissions in reply

  1. [14]
    In her written submissions in reply to the Service's submissions, Ms Smith submitted:
  1. I do respectfully submit that the decision was not fair and reasonable as the Respondent outlines in their submission, Points 5 and 6, in that no consideration appears to have been given to several instances where decision-makers and or investigators may have erred or misconstrued available information.
  1. Since 4 October 2021, when the Commissioner's Direction No 12 (vaccination mandate) took effect, I continued working in good faith pending my suspension being enforced, for more than three (3) months (4th October 2021 - 6th January 2022) as requested by my Management, despite it being common knowledge that I was unvaccinated and thus in breach of Direction No 12.
  1. Direction 12, Suspension with Remuneration and Suspension without Remuneration Notices, includes that '...an unvaccinated member is a risk to the safety of QPS and members of the public", yet I was allowed/encouraged, requested even, to continue working despite the alleged risk.
  1. Upon my suspension from duty on 6 January 2022, I was, on multiple occasions by varying levels of Management, advised that I was not to make any contact with any member of the QPS except the "delegated contact person". It was reiterated that I was not to engage in any manner of contact with co-workers or colleagues. This instruction also prevented me from accessing available support networks. The occupant of the role of "delegated contact person" has changed 9 times since 6 January 2022. On 9 March 2022, following a formal interview with representatives of the Ethical Standards Command, I was informed that this advice was incorrect and further that disengaging from my support network is not part of the process and can cause alienation which, in my case, has contributed to the deterioration of my health. To my knowledge no further action was taken.
  1. On the morning of what later turned out to be my formal Suspension on 6 January 2022, my direct Supervisor attempted to reverse my suspension and asked me to continue working, again despite this being in breach of Direction No 12.
  1. On 9 March 2022, following a formal interview with representatives of the Ethical Standards Command, I raised the fact that ongoing breaches of Direction No 12 and specifically the implied risks to the QPS and members of the public during a period of more than 3 months did not appear to be considered. This was acknowledged as a "good point" but to my knowledge no further action was taken.
  1. During the aforementioned 3 months I repeatedly advised my Management of the impact on my health as documented by my GP by way of Medical Certification and very transparent communication. My Management advised that I could continue to work until the time of my suspension, at which time I could apply for Accrued Sick Leave. I was encouraged and supported to continue working, despite openly advising that my health was deteriorating because of the ongoing delays to the process of enforcing my suspension. I was repeatedly advised that my impending suspension would occur within a few days to encourage me to continue working, only to finally receive notice more than 3 months later,
  1. On 9 March 2022, following a formal interview with representatives of the Ethical Standards Command, the delays in the process were described as a "miscommunication, dropped ball". To my knowledge no further action was taken.
  1. Upon finally receiving the Suspension without Remuneration Notice, I was advised that I was not entitled to Accrued Sick Leave despite having been advised to the contrary prior to being encouraged to continue working.
  1. The QPS' Suspension and Stand Down Guideline require that a suspended member receive a Management Action Plan (MAP) at the time of Suspension. On 9 March 2022, during a formal interview with representatives of the Ethical Standards Command, I was advised that such MAP should indeed have been provided at the time of my suspension, for me to review its contents and reference material. I have not received this document to date, nor am I aware of the contents of this document or its reference material. Without being afforded the appropriate documentation for what I can only assume outlines the Plan of Action for my specific suspension, I feel even more isolated and distressed by the apparent shortcomings of, or errors made during the process and the subsequent apparent lack of any action to correct these incidents which ultimately led to the outcome of Suspension without Remuneration and that such outcome was fair and reasonable.
  1. Point 14 of the Respondent's submission contends my failure to appreciate the nature and seriousness of the allegations against me, yet shortcomings described above and acknowledged by stakeholders acting on behalf of the Respondent have gone unaddressed.
  1. I respectfully submit that the matter of my Suspension without pay would not have reached the stage it has if it were not for inconsistencies, delays, and lack of proper understanding of the process and its requirements by those investigating. Incorrect statements such as the purported access to Accrued Sick Leave directly contributed to my decision to appeal. Similarly, the delays in effecting my suspension without pay disqualify me from accessing QSuper's Income Protection.

The decision was fair and reasonable

  1. [15]
    In my opinion, Acting Assistant Commissioner Brewer's decision, suspending Ms Smith without remuneration as from 28 January 2022, was fair and reasonable.
  1. [16]
    In her principal written submissions, Ms Smith contended that Acting Assistant Commissioner Brewer's decision was not fair and reasonable because, having regard to s 137(3) of the PS Act, Acting Assistant Commissioner Brewer did not consider, before suspending her, all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that were available to Ms Smith. The basis for this submission appeared to be that, due to the arrangements whereby for a period of almost two years Ms Smith had worked remotely, she could have continued to work remotely and not be suspended either with or without remuneration.
  1. [17]
    However, Acting Assistant Commissioner Brewer dealt specifically with that claim in paragraph (iv)(h) of his decision (reproduced earlier in these reasons for decision). In that part of the decision, Acting Assistant Commissioner Brewer expressly referred to the fact that the State was no longer in lockdown and was transitioning into more normal pre‑pandemic functioning. It was reasonable for Acting Assistant Commissioner Brewer, in considering alternative duties for Ms Smith to perform before making the decision to suspend her, to take that matter into account.
  1. [18]
    For these reasons, I do not find that Ms Smith's principal attack on Acting Assistant Commissioner Brewer's decision rendered the decision not fair and not reasonable.
  1. [19]
    The submissions made by Ms Smith in reply do not go to the issues of whether or not she can perform alternative duties, but went to the following issues:
  • the fact that for a period of time, following the operation of the Direction, she continued to work even though she was unvaccinated (paragraphs 4, 5, 7 and 8);
  • when she was suspended from duty with pay on 6 January 2022, she was advised not to contact any member of the Service except the delegated contact person, which was changed a number of times, all of which have had a detrimental impact on her health (paragraph 6);
  • that she was given incorrect advice about accruing sick leave during the period of her suspension (paragraphs 9, 10 and 11);
  • she has not received a Management Action Plan as required by the Service's Suspension and Stand Down Guideline which has caused her to feel more isolated and which is a further example of shortcomings and errors made in relation to the suspension process as it affected her and which have gone unaddressed (paragraph 12); and
  • the matter of her suspension without pay would not have reached the stage it has if it were not for the inconsistencies, delays and lack of proper understanding of the process by the Service and that incorrect statements regarding her ability to access accrued sick leave have directly contributed to her decision to appeal, as have the delays in effecting her suspension which have disqualified her from seeking income protection under her superannuation scheme (paragraph 14).
  1. [20]
    The provision of incorrect advice to Ms Smith is regrettable, as is any failure to comply with the Guideline in respect of the provision of a Management Action Plan in respect of her suspension without remuneration. However, those matters, of themselves, do not render the decision to suspend Ms Smith without remuneration as being other than fair and reasonable.
  1. [21]
    Having regard to the reasons for her suspension, namely, her failure to comply with the Direction and having regard to the fact that Acting Assistant Commissioner Brewer reasonably took into account whether Ms Smith could continue working, and avoid being suspended, by working remotely (which he rejected because of the direction that staff of the Service who have been working remotely should return to their ordinary workplace), there is nothing raised by Ms Smith in her submissions that persuade me that the decision by Acting Assistant Commissioner Brewer was other than fair and reasonable.
  1. [22]
    Ms Smith has failed to comply with a reasonable direction that she receive a COVID‑19 vaccination. Ms Smith is required by the Service to return to her ordinary workplace. All of those reasons are given in Acting Assistant Commissioner Brewer's decision to suspend Ms Smith without remuneration. Having regard to s 137(3) and s 137(4)(b) of the PS Act, they were relevant considerations in respect of the decision to suspend Ms Smith without remuneration. Given the purpose of the Direction, these considerations, as taken into account by Acting Assistant Commissioner Brewer, viewed objectively, mean that his decision was fair and reasonable.
  1. [23]
    Ms Smith has provided no other submission to me that causes me to determine that Acting Assistant Commissioner Brewer's decision was other than fair and reasonable.

Conclusion

  1. [24]
    For the reasons I have given, the decision appealed against was fair and reasonable.
  1. [25]
    The decision appealed against is confirmed.

Order

  1. [26]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

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

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 165

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    20 May 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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