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  4. Karen v State of Queensland (Queensland Police Service) (No. 2) - [2022] QIRC 191

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Karen v State of Queensland (Queensland Police Service) (No. 2)[2022] QIRC 191

Karen v State of Queensland (Queensland Police Service) (No. 2)[2022] QIRC 191

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Karen v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 191

PARTIES:

Karen, Mishel

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2022/4

PROCEEDING:

Public Service Appeal - Suspension without pay

DELIVERED ON:

2 June 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

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 – suspension without remuneration decision – whether decision to suspend appellant without remuneration was fair and reasonable – where appellant argued difference in treatment – whether decision was an improper exercise of power – whether decision-maker failed to take relevant considerations into account – whether decision-maker took irrelevant considerations into account – consideration of natural justice – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Human Rights Act 2019 (Qld) s 13

Industrial Relations Act 2016 (Qld) s 89, s 562B, s 562C

Police Service Administration Act 1990 (Qld) s 4

Public Service Act 2008 (Qld) s 26, s 59, s 137

Directive 16/20 Suspension cl 6

CASES:

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Gilmour v Waddell & Ors [2019] QSC 170

Karen v State of Queensland (Queensland Police Service) [2022] QIRC 038

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Reasons for Decision

Introduction

  1. [1]
    In her Appeal Notice, Ms Karen indicated she is substantively employed by the Queensland Police Service, State of Queensland (QPS; the Respondent) as an AO4 Learning Support Officer.[1] Ms Karen submits that role dissolved in February 2021 and she has since been placed in "'Administrative Transfer' in the 'Transition Positions' Work Unit (1920)".[2]
  1. [2]
    On 7 September 2021, the Commissioner of the Queensland Police Service issued the Instrument of Commissioner's Direction No. 12 (Direction No. 12). Direction No. 12 mandates that police officers and other staff members must receive the COVID-19 vaccine.[3]
  1. [3]
    Ms Karen sought exemptions from complying with Direction No. 12 by filing several applications that were ultimately denied by the Respondent.
  1. [4]
    On 26 October 2021, the Respondent issued a 'Notice of Suspension with Remuneration and a Show Cause Notice for Suspension without Remuneration' (the Show Cause Notice).
  1. [5]
    The Show Cause Notice pertained to the following allegation in relation to Direction No. 12:

It is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7(a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Superintendent Shane Holmes on 19 October 2021 as required by clause 7(c) of the Direction.

  1. [6]
    The Show Cause Notice advised Ms Karen she is suspended from duty with remuneration pursuant to s 137(1)(a) of the Public Service Act 2008 (Qld) (the PS Act) and that consideration would be given to whether or not she should be suspended from duty without remuneration pursuant to s 137(1)(b) and (4) of the PS Act. An Executive Briefing Note dated 22 October 2021 was annexed to the Show Cause Notice.
  1. [7]
    Ms Karen provided a response on 2 November 2021.[4]
  1. [8]
    The Respondent subsequently issued Ms Karen with a 'Notice of Suspension Without Remuneration' for failing to comply with Direction No. 12 (the Decision). The Decision, authored by Ms Virginia A Nelson APM[5] (the decision-maker) is dated 14 December 2021 and took effect from midnight on 17 December 2021.[6]
  1. [9]
    On 4 January 2022, Ms Karen filed an appeal against the Decision, being "a decision about suspension without pay".[7] The Respondent does not contest Ms Karen's eligibility to lodge an appeal under the PS Act.[8]
  1. [10]
    The issue for my determination is whether the Decision to suspend Ms Karen without remuneration was fair and reasonable. For the reasons below, I find the Decision was fair and reasonable.

Application to stay the Decision

  1. [11]
    In her Appeal Notice, Ms Karen sought that the Decision be "wholly stayed pending the determination of the appeal, including any consequential action including the termination of my employment."[9]
  1. [12]
    I sought to deal with Ms Karen's stay application urgently and prior to hearing the substantive appeal. Notwithstanding, the stay application was ultimately adjourned due to Ms Karen being unwell.
  1. [13]
    I heard the stay application on 11 February 2022 and dismissed the application on 16 February 2022.[10]

The PS Act

  1. [14]
    Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.
  1. [15]
    Pursuant to s 137(1)(b) of the PS Act, the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes "the employee is liable to discipline under a disciplinary law."
  1. [16]
    An employee is entitled to normal remuneration during a suspension unless the employee meets the criteria under s 137(4) of the PS Act, namely:
  1. (a)
    the person is suspended under s 137(1)(b) of the PS Act; and
  1. (b)
    the chief executive 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 chief executive believes the person is liable.
  1. [17]
    Pursuant to s 137(9) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice, the PS Act and Directive 16/20 Suspension (Directive 16/20).

What decisions can the Commission make?

  1. [18]
    Section 562C of the Industrial Relations Act 2016 (Qld) (the IR Act) prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [19]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [20]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the decision-maker and the associated decision–making process.
  1. [21]
    Findings made by the decision-maker, which are reasonably open to him or her, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [22]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[11]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [23]
    In accordance with the Directions Order issued on 17 February 2022, the parties filed written submissions in the substantive appeal.
  1. [24]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [25]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of that material but will instead refer to the parties' key positions in my consideration of the matter. That point is particularly pertinent given Ms Karen was directed to file written submissions in reply of no more than three pages in length but proceeded to file written submissions of seven pages in length.
  1. [26]
    I have not been able to discern the relevance of some of Ms Karen's reply submissions. I acknowledge the following matters were raised by Ms Karen, however respectfully these matters lack substance and relevance with respect to this appeal:
  • Ms Karen was asked to commence temporary work before being served with a Suspension Notice;[12]
  • the Respondent has exceeded an acceptable transition period for finding a suitable position for Ms Karen under Directive 18/20 Supporting employees affected by workplace change;[13]
  • the Respondent enforced a Management Action Plan on Ms Karen on 28 October 2021;[14]
  • the decision with respect to the Stay Application;[15] and
  • a Secondary Employment Application.[16]
  1. [27]
    I will only be focusing on the appeal grounds relevant to the determination of whether the Decision appealed against is fair and reasonable.

Appeal Grounds

  1. [28]
    Ms Karen contends the Decision is not fair and reasonable because:
  • the Decision was an improper exercise of the power under which it was purported to be made;
  • rules of natural justice were breached;
  • procedures required by law were not observed;
  • the Decision was not justified by evidence or other material;
  • the Decision involved an error of law; and
  • the Decision was contrary to law.[17]
  1. [29]
    Although Ms Karen articulated her grounds of appeal under the above categories, I found that there was significant overlap and therefore will consider each aspect logically under the headings below. 

Is the Decision fair and reasonable?

Improper exercise of power

Failure to take a relevant consideration into account

  1. [30]
    Ms Karen refers to cl 6.3 of Directive 16/20 which provides:[18]

6.3  In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [31]
    Ms Karen's submissions in this regard are very unclear, although I have discerned that the relevant consideration she contends was not taken into account is that of "any factors not within the control of the agency that are preventing the timely conclusion of the discipline process."[19]
  1. [32]
    Ms Karen further submits the Decision does not address:
  • her established Enterprise Agreement and an approved 'Flexible Working Arrangement' that authorised Ms Karen to work from home;[20]
  • that she had submitted requests for Safety Data Sheets under s 341 of the Fair Work Act 2009 (Cth);[21]
  • that Direction No. 12 was revoked on 14 December 2021; and
  • that Direction No. 12 is under challenge in the Supreme Court.[22]
  1. [33]
    On the evidence before the decision-maker, I accept it was open to her to reasonably conclude that alternative arrangements were not a solution to Ms Karen's ongoing refusal to comply with the Direction. Further, I consider it was open to the decision-maker to determine that suitable meaningful alternative duties are not available in light of the nature of Ms Karen's substantive role, potential future roles and the Service's workforce. Although Ms Karen's role has been "dissolved" – it would be unreasonable to expect QPS to find Ms Karen a role that does not require vaccination or continue to remunerate her while she does not have an allocated role.
  1. [34]
    Significantly, because of Ms Karen's vaccination status, there may not be a suitable role available to her in the future. In such circumstances, I find it reasonable that the decision-maker determined not to allow Ms Karen to work from home permanently and indefinitely or to accommodate such a request because she has elected not to comply with Direction No. 12.
  1. [35]
    Ms Karen's numerous requests for various information is irrelevant to the considerations under cl 6.3 of Directive 16/20. Ms Karen failed to comply with Direction No. 12 and was not granted an exemption – therefore at the point this matter of remuneration needed to be determined by the decision-maker, any reason for Ms Karen failing to comply were irrelevant in my view. That includes any questions and requests that Ms Karen complains remain unanswered.
  1. [36]
    Ms Karen's original suspension occurred in the context of her failing to comply with Direction No. 12. Although Direction No. 12 was superseded by Queensland Police Service Instrument of Commissioner's Direction No. 14 on 14 December 2021, it is Direction No. 12 that remains relevant to the determination of this appeal.
  1. [37]
    Finally, although Ms Karen has referred to a matter before the Supreme Court with respect to Direction No. 12 – Ms Karen has not provided evidence of any stay on the operation of Direction No. 12 and therefore the requirements therein currently remain valid and operate lawfully.
  1. [38]
    Upon review of the Decision, I am satisfied the decision-maker correctly considered the factors prescribed under cl 6.3 of Directive 16/20. The nature of the discipline matter is clearly expressed firstly by articulating the allegation and then by way of outline of the seriousness of failing to comply with Direction No. 12. Furthermore, public interest was extensively considered including with respect to maintaining the reputation of the QPS, the public's trust in the QPS, financial accountability and the appropriate use of resources in the current economic environment. Clause 6.3(b) provides that the chief executive is to consider "any factors not within the control of the agency that are preventing the timely conclusion of the discipline process". If the Decision does not include reference to such factors, presumably that is because no such factor has been identified – the use of the word "any" indicates that there may be circumstances where no such factor exists at all. That omission does not render the Decision unfair or unreasonable.

Exercise of power for a purpose other than a purpose for which the power is conferred

  1. [39]
    Ms Karen submits that the Respondent has exercised a power for a purpose other than a purpose for which the power is conferred.[23] Ms Karen refers to "Public Statements by the Police Commissioner" that allegedly state "that the purpose of the latter decision to continue the suspension without pay is for the primary purpose of forcing the employee to receive a vaccination rather than the true legislative purpose."[24] Ms Karen has not provided evidence of the "Public Statements".
  1. [40]
    Ms Karen submits:

The decision maker in assessing the employee's Human Rights expressly states that in their decision they balanced the employee's Human Rights against the need for compliance with the Police Direction. An absolute admission that the exercise of discretionary power was for a purpose other than for which the power is conferred.[25]

  1. [41]
    Section 13(1) of the Human Rights Act 2019 (Qld) (HR Act) provides that "A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom." Section 13(1) of the HR Act clearly indicates that rights are generally not absolute and are allowed to be limited in justifiable circumstances.
  1. [42]
    Upon review of the Decision, it is clear that the decision-maker took Ms Karen's human rights into careful consideration. The decision-maker listed several rights which may be limited by the Decision before thoroughly outlining why she considers such limits to be reasonable and justified. I reproduce part of that consideration here:

Human rights

I consider that my decision to suspend you without remuneration may limit your right of equal access to the public service and your right to property (which might include remuneration). Because my decision enforces the Direction, it also limits human rights related to autonomy and bodily integrity, including the right not to receive medical treatment without consent and the right to privacy. Because your reason for allegedly failing to comply with the Direction is based on a conscientious belief, my decision may also limit your right to equality and non-discrimination, and freedom of thought, conscience and belief.

However, I consider these limits on human rights are reasonable and justified by the need to ensure compliance with the Direction, as follows:

  • The purpose of ensuring compliance with the Direction is to protect the health and safety of QPS employees and members of the public with whom members come into contact.
  • Your continued suspension will help to achieve that purpose because it will mean you do not present a risk of transmitting COVID-19 in the workplace.
  • Alternatives such as a temporary transfer or another alternative working arrangement have been considered. However, because of the nature of your role and your location and in consideration of the safety of the workplace, the Service's workforce, and the safety of the community, suitable meaningful alternative duties are not available.
  • It is a serious thing to place employment consequences on a person's exercise of their dignity and autonomy to make decisions about their body. However, the risks posed by COVID‑19 to the Service, its members and the broader community are also very serious. Ultimately, I consider the importance of ensuring the health and safety objective outweighs the impacts on your human rights.

I consider the decision that your suspension should now be without remuneration is reasonable and justified by reference to a slightly different purpose as follows:

  • As detailed above, the Service is a publicly funded organisation with statutory financial accountability obligations. Further, there is 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 compliance with the Service's financial accountability obligations.
  • Suspending you without remuneration will help to maintain financial accountability and the reputation of, and the public's trust in, the Service. It will also help to minimise the potential risk of noncompliance with the Service's financial accountability obligations, and/or the potential risk of compromising the reputation of the Service, arising from you continuing to be remunerated while suspended from duty and while the allegation against you remains outstanding.
  • There is no less restrictive way to achieve this purpose. In particular, the alternative of you continuing to be suspended with remuneration would not be as effective in maintaining financial accountability and the reputation of, and public trust in, the Service.
  • Ultimately, I consider the importance of maintaining financial accountability and public trust in the Service outweighs the impact on your human rights, especially taking into account that the Notice afforded you the opportunity to show cause notice [sic] why you should not be suspended without salary and allowance, and afforded you the opportunity to seek advice from your union or a legal or other advisor, if you choose to do so.

Accordingly, I consider the decision to suspend you without remuneration is compatible with human rights under the Human Rights Act 2019.

  1. [43]
    Further, after considering Ms Karen's personal circumstances, the decision-maker concluded:

…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.[26]

  1. [44]
    In Colebourne v State of Queensland (Queensland Police Service), Deputy President Merrell concluded:[27]
  1. [84]
    Section 13(2)(e) of the Human Rights Act 2019 provides that in deciding whether a limit on a human right is reasonable and justified, a factor that may be relevant is the importance of the purpose of the limitation. Again, reading the decision as a whole, Acting Assistant Commissioner Nelson considered whether the decision, which she found had the effect of enforcing Direction No. 12 which thereby limited Ms Colebourne's human rights, was reasonable and justified.
  1. [85]
    It was in that context that Acting Assistant Commissioner Nelson made the statement impugned by Ms Colebourne. The statement was made in the context of Acting Assistant Commissioner Nelson weighing up the reasons as to why the limits on Ms Colebourne's human rights were reasonable and justified.
  1. [45]
    Paragraph 5 of Direction No. 12 provides that:

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. [46]
    For the reasons outlined above, I conclude the decision-maker thoroughly considered and appropriately concluded that any human right that may be limited by the Decision was reasonable and justified in light of competing interests and the seriousness of those interests. On that basis, I reject Ms Karen's arguments that the Decision was not fair and reasonable by virtue of the consideration of her human rights or that such consideration evidences an exercise of power for a purpose other than a purpose for which the power is conferred.
  1. [47]
    By extension, Ms Karen contends that "an exercise of a power for a purpose other than the intended legislative purpose is an exercise of a discretionary power in bad faith, especially when the exercise of the discretionary power causes harm to a person."[28] Ms Karen submits that because the Decision "was made for an improper purpose in bad faith" the decision maker has engaged in misconduct under the Police Service Administration Act 1990 (Qld) and the Decision is therefore contrary to law.[29]
  1. [48]
    The Respondent contends that the term 'bad faith' connotes corrupt, dishonest or capricious behaviour.[30] Ms Karen has not provided any evidence to support such a claim and I reject her allegation in this regard.
  1. [49]
    Ms Karen argues that the purpose of the Decision would appear to be to apply coercive economic pressure contrary to the legislative purpose of s 137 of the PS Act.[31]
  1. [50]
    In Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors, the Full Bench concluded:

Therefore, on a proper construction of the PSA Act as a whole, and taken in the context of the QPS being maintained as a disciplined force:

  1. 1.within the restrictions that have been explained, the Commissioner may give a lawful direction to employees;
  1. 2.the direction is given by the Commissioner in her capacity as the effective employer of the employees;
  1. 3.unless there is "reasonable excuse" not to comply, the employee must comply.[32]
  1. [51]
    As Ms Karen was not granted an exemption, it was reasonable for the decision-maker to conclude that she has no reasonable excuse to not comply with Direction No. 12. I am not satisfied that the Decision evidences an exercise of power for a purpose other than a purpose for which the power is conferred.

Taking an irrelevant consideration into account

  1. [52]
    Ms Karen submits the following considerations were irrelevant:
  • the Police Commissioner's ability to fulfill the prescribed responsibility defined in s 4.8 of the Police Service Administration Act 1990 (Qld) including compliance with the Work Health and Safety Act 2011 (Qld);
  • the current economic climate; and
  • expenditure of public resources.[33]
  1. [53]
    To the contrary, I consider it was fair and reasonable for the decision-maker to consider those factors. My reasons follow.
  1. [54]
    The decision-maker referred to s 4.8 of the Police Service Administration Act 1990 (Qld) which states that the Commissioner is responsible for (amongst other things) the efficient and proper administration, management and functioning of the QPS in accordance with law. The decision-maker stated that this includes compliance with the Work Health and Safety Act 2011 (Qld) 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 QPS.[34] The decision-maker concluded that Ms Karen's "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."[35]
  1. [55]
    I note firstly that Direction No. 12 was issued pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld). Although Ms Karen may have been displaced at the time of the Decision, it remains that she is an employee and therefore any possibility of her returning to the workplace must be weighed against the duties to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service. For the reasons outlined within the Decision, I find that failing to follow the Direction to receive a COVID-19 vaccination affected the Commissioner's duty and therefore was a relevant consideration in determining the appropriateness of keeping Ms Karen on normal remuneration. The fact remains that even if the Respondent had located a new role for Ms Karen, she may have come up against similar issues with respect to non-compliance with Direction No. 12 as she is now – it is not the responsibility of the Respondent to find her a role matching her skills and experience and that does not require COVID-19 vaccination status. To expect that would be unreasonable.
  1. [56]
    Ms Karen did not elaborate on her submission that expenditure of public resources is not a relevant consideration. As a publicly funded organisation with statutory financial accountability, in my view the use of public resources is certainly an important consideration when determining the appropriateness of keeping certain suspended employees on normal remuneration. Stemming from that consideration is factoring in the reputation of and the public's trust in the QPS and the public service more generally. Section 26(1)(h) of the PS Act provides that public service employment involves a public trust and therefore work performance and personal conduct must be directed towards acting honestly, fairly and in the public interest. Further, s 59 of the PS Act provides that the commission chief executive must perform his or her functions in the public interest. For those reasons, I reject Ms Karen's arguments that the Decision was unfair or unreasonable by virtue of economic and public interest considerations.

Exercise of discretionary power at the behest of another person

  1. [57]
    Ms Karen contends the decision-maker exercised the discretionary power to commence proceedings under s 137(1)(b) of the PS Act at the behest of the public comments made by the Police Commissioner.[36]
  1. [58]
    By extension, Ms Karen submits that the decision-maker did not have regard to the merits of her particular case and refers to portions of the Decision which appear to "come from a form letter".[37] Specifically, Ms Karen outlines the following circumstances:
  • Ms Karen's substantiated role was not a sworn officer role;
  • Ms Karen's role as a Learning Support Officer ATSI was dissolved in February 2021 and she has since been displaced;
  • Ms Karen has been conducting temporary roles until the employer could allocate a permanent position within Queensland Government; and
  • the Respondent had exceeded the transition period for finding a suitable position within their organisation for Ms Karen, prior to the delivery of the initial show cause notice.[38]
  1. [59]
    Notwithstanding Ms Karen's assumptions, upon review of the Decision I am satisfied the decision-maker has fairly and reasonably determined the matter in accordance with the PS Act and Directive 16/20 and has clearly set out the reasons including their own assessment of Ms Karen's individual circumstances. I have already addressed the matter of Ms Karen's dissolved role at [33] and [55] above.

Unreasonableness

  1. [60]
    Ms Karen contends the Decision was unreasonable because no adverse finding was made against her at the time of the Decision and other, highly paid senior officers have been treated more favourably.[39] In this regard, Ms Karen refers to examples of other employees who were suspended on full pay for long periods of time while disciplinary matters proceeded.[40]
  1. [61]
    Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. The decision-maker reached that conclusion in relation to the allegations that:
  • Ms Karen failed to receive at least one dose of the vaccine by 4 October 2021 as required by cl 7(a) of Direction No. 12; and
  • Ms Karen failed to provide evidence of receiving a COVID-19 vaccine when requested to do so on 19 October 2021 as required by cl 7(c) of Direction No. 12.[41]
  1. [62]
    The fact that Ms Karen had refused and was refusing to comply with Direction No. 12 is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that Ms Karen was liable to discipline under a disciplinary law.[42]
  1. [63]
    Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable. Ms Karen continued to focus on the fact that as at the time she was suspended without pay, she had not been found liable for disciplinary action – however that is not the test – rather the chief executive must have regard to the nature of the discipline to which the chief executive "believes the person is liable".[43] As the Respondent correctly submits, there is no requirement that the disciplinary process has reached a certain point before the decision can be made.[44] The decision-maker considered the nature of the discipline to which she believed Ms Karen was liable and I am satisfied that was thoroughly outlined at pages 1 - 4 of the Decision. Upon review of those reasons, I accept it was open to the decision-maker to conclude that it is not appropriate for Ms Karen to remain on normal remuneration in light of the nature of the discipline.
  1. [64]
    With respect to Ms Karen's contentions regarding being unfairly treated in comparison to other employees, those matters were seemingly based on different facts and circumstances and were not related to the Direction No. 12 applicable to Ms Karen.
  1. [65]
    Each disciplinary process will necessarily turn on its own facts and the nature of the discipline to which the decision-maker believes Ms Karen is liable is different to the nature of the discipline for other employees in separate circumstances. On that basis, I reject Ms Karen's argument that she has been unfairly treated in comparison to other employees.
  1. [66]
    Ms Karen also referred to s 89 of the IR Act[45] which "applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or her unborn or newborn child." I reject any link between that provision and the present circumstances.
  1. [67]
    Finally, a substantial portion of Ms Karen's submissions refer to why she contends she should be granted an exemption. Those submissions are not relevant to this decision which pertains to an appeal against a suspension without remuneration determination. If Ms Karen wanted to appeal against her exemption refusals, she should have done so. That time has passed and my focus is purely on the decision to suspend her without remuneration. I consider this also applicable to the various submissions Ms Karen makes with respect to a request that she commence temporary work, compliance with Directive 18/20 and finding her a suitable position during the "transition period"[46] – simply, that is not relevant to the determination of whether it was fair and reasonable to suspend Ms Karen without remuneration.

Natural justice

  1. [68]
    Ms Karen contends she was denied natural justice for the following reasons:
  • Ms Karen did not receive a fair hearing;
  • the decision maker was not unbiased nor disinterested because he sought submissions on irrelevant factors;
  • the decision was not based on logically probative evidence;
  • the show cause for suspension was issued before any real steps to undertake the disciplinary process had commenced; and
  • the Police Commissioner publicly announced that all employees suspended on pay would immediately be issued with a show cause as to why the suspension would continue with pay which created a clear expectation of the outcomes to be arrived at by any officer exercising discretionary power.[47]
  1. [69]
    Further, Ms Karen contends that pursuant to the Acts Interpretation Act 1954 (Qld), a written decision must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. Ms Karen submits the Decision sets out conclusions, with no findings of fact nor evidence or other material on which those findings were based.[48]
  1. [70]
    Clause 6.4 of Directive 16/20 provides:

Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence.

  1. [71]
    As outlined above, the chief executive needs to have regard "to the nature of the discipline to which the chief executive believes the person is liable" pursuant to s 137(4)(b) of the PS Act. The Decision stipulated the following:

On 26 October 2021, you received a Suspension Notice and Show Cause Notice for Suspension without Remuneration dated 25 October 2021 (Notice) regarding the following allegation in relation to Instrument of Commissioner's Direction No. 12 (Direction):

Allegation: It is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7 (a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Superintendent Shane Holmes on 19 October 2021 as required by clause 7(c) of the Direction.

  1. [72]
    The allegation was clearly stipulated to Ms Karen and she was given an opportunity to respond. Therefore, I do not accept Ms Karen's argument that no "real steps" had been undertaken in the disciplinary process. The allegation was fairly and reasonably put to Ms Karen and it was clear that the possibility of being suspended without pay was linked to that allegation and failure to comply with Direction No. 12. There is no requirement that the related disciplinary process be at a particular stage before the decision-maker can make a decision to suspend an employee without remuneration.
  1. [73]
    Ms Karen has not elaborated on why she contends she did not receive a fair hearing, however the Decision indicates that Ms Karen was afforded 7 days to respond in writing showing cause as to why she should not be suspended without remuneration. In the absence of evidence to the contrary, I find the Decision was fair and reasonable in allowing and considering Ms Karen's response as outlined on pages 1-2.
  1. [74]
    I accept the Decision is reasonably based on evidence that Ms Karen has not received an exemption and has not complied with Direction No. 12. That evidence is compelling in my view and goes to the heart of what the decision-maker was required to consider. Ms Karen has not presented submissions with respect to what evidence she contends is missing and therefore I am not satisfied with her argument in this regard.
  1. [75]
    I have rejected Ms Karen's arguments regarding consideration of irrelevant factors at [52] – [56] above and therefore will not consider them again here.
  1. [76]
    Ms Karen contends that the 'Notice to Show Cause' was deficient because of a lack of adequate particularisation, disciplinary law, procedural fairness and application and that there were "procedural deficiencies in the process". Ms Karen did not elaborate on these points beyond merely stating them in bullet point form and did not even provide a copy of the Notice. Therefore, I cannot be satisfied of her arguments in this regard.
  1. [77]
    Under the heading, 'Constitutional Law that protects the individual' Ms Karen lists various legislation but other than the inference that the legislation constitutes constitutional law that "protects" her, Ms Karen has not presented any submissions in this regard. Therefore, I cannot draw any inference from that aspect of her submissions. 
  1. [78]
    For the reasons outlined above, I am satisfied that the decision-maker fairly and reasonably adhered to natural justice principles.

Conclusion

  1. [79]
    The Decision set out evidence in support of the ultimate conclusion to suspend Ms Karen without remuneration and included intelligible justification following consideration of the matters raised by Ms Karen. The allegations against Ms Karen are serious and the evidence supporting the Decision is compelling in my view.
  1. [80]
    I order accordingly.

Order

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

Footnotes

[1] Appeal Notice, 4 January 2022, 1. 

[2] Appellant's Submissions in Reply, 3 March 2022, [1].

[3] Katarina Carroll APM, Commissioner of Queensland Police Service, Instrument of Commissioner's Direction No. 12, 7 September 2021, [7].

[4] Notice of Suspension Without Remuneration, 14 December 2021, 1. 

[5] Acting Assistant Commissioner, Ethical Standards Command.

[6] Notice of Suspension Without Remuneration, 14 December 2021, 4.

[7] Appeal Notice, 4 January 2022, 3.

[8] Respondent's Submissions, 24 February 2022, 1 [3].

[9] Appeal Notice, 4 January 2022, 4.

[10] Karen v State of Queensland (Queensland Police Service) [2022] QIRC 038.

[11] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[12] Appellant's Reply Submissions, 3 March 2022, [1].

[13] Ibid [3].

[14] Ibid [6].

[15] Ibid [8].

[16] Ibid [9].

[17] Appeal Notice, 4 January 2022, Schedule A, [2].

[18] Ibid [3].

[19] Ibid [6].

[20] Ibid [47].

[21] Ibid [49].

[22] Appellant's Submissions, 20 January 2022, a.

[23] Appeal Notice, 4 January 2022, Schedule A, [7].

[24] Ibid [12].

[25] Ibid [15].

[26] Letter from Virginia A Nelson APM to Ms M. Karen, 14 December 2021. 

[27] [2022] QIRC 018.

[28] Appeal Notice, 4 January 2022, Schedule A, [19].

[29] Ibid [45]-[46].

[30] Respondent's Submissions, 24 February 2022, 5 [16].

[31] Appeal Notice, 4 January 2022, Schedule A, [14].

[32] [2021] QIRC 356, 28 [84].

[33] Appeal Notice, 4 January 2022, Schedule A, [16]-[18].

[34] Notice of Suspension Without Remuneration, 14 December 2021, 2.

[35] Ibid.

[36] Appeal Notice, 4 January 2022, Schedule A, [21].

[37] Ibid [22]-[25].

[38] Appeal Notice, 4 January 2022, Schedule A, [48].

[39] Ibid [26]-[29].

[40] Ibid [8].

[41] Notice of Suspension Without Remuneration, 14 December 2021, 1.

[42] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [28]-[30].

[43] Public Service Act 2008 (Qld) s 137(4)(b).

[44] Respondent's Submissions, 24 February 2022, 5 [17].

[45] Appellant's Submissions, 20 January 2022, [2].

[46] Appellant's Submissions in Reply, 3 March 2022, [3].

[47] Appeal Notice, 4 January 2022, Schedule A, [32]-[37].

[48] Ibid [38].

Close

Editorial Notes

  • Published Case Name:

    Karen v State of Queensland (Queensland Police Service) (No. 2)

  • Shortened Case Name:

    Karen v State of Queensland (Queensland Police Service) (No. 2)

  • MNC:

    [2022] QIRC 191

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    02 Jun 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
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
1 citation
Jump To
Cite 1 - [2021] QIRC 356
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
3 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
Cite 3 - [2022] QIRC 18
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Karen v State of Queensland (Queensland Police Service) [2022] QIRC 38
2 citations
Jump To
Cite 1 - [2022] QIRC 38
Cite 2 - [2022] QIRC 38
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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