Prentis v State of Queensland (Department of Education)
[2022] QIRC 212
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- Unreported Judgment
- Prentis v State of Queensland (Department of Education)[2022] QIRC 212
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Prentis v State of Queensland (Department of Education)[2022] QIRC 212
Prentis v State of Queensland (Department of Education)[2022] QIRC 212
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Prentis v State of Queensland (Department of Education) [2022] QIRC 212 |
PARTIES: | Prentis, Barbara (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2022/450 |
PROCEEDING: | Public Service Appeal – Suspension without pay |
DELIVERED ON: | 14 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 – whether respondent considered alternative arrangements – where decision was fair and reasonable – decision appealed against confirmed |
LEGISLATION & OTHER INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564 Public Service Act 2008 (Qld) s 137, s 187, s 194 Directive 16/20 Suspension cl 1, cl 5 Employment Direction 1/21 - COVID-19 Vaccinations, s 3, s 4, s 5, s 8, s 9 |
CASES: | Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018 Gilmour v Waddell & Ors [2019] QSC 170 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
Reasons for Decision
Introduction
- [1]Mrs Barbara Prentis (the Appellant) is employed as a Youth Support Coordinator at Cairns School of Distance Education by the Department of Education, State of Queensland (the Department; the Respondent).[1]
- [2]On 16 December 2021, the Director-General of the Department issued the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations (the Direction).[2]
- [3]Relevantly, cl 5 of the Direction mandates:
All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must:
- a.have received the first dose of a COVID-19 vaccine by 17 December 2021;
- b.as soon as reasonably practicable after the first dose of the COVID-19 vaccine and in any event no later than 5pm AEST on 7 January 2022, show evidence of having received the first dose in line with section 6 below;
- c.have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022; and
- d.as soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of Covid-19 vaccines in line with section 6 below.
- [4]Clause 3 of the Direction prescribes that "high-risk settings" include schools and outdoor education facilities.
- [5]Clause 8 of the Direction affords employees the opportunity to apply for an exemption from compliance with the Direction due to medical contraindication or participation in a clinical trial.
- [6]The Appellant did not formally apply for an exemption,[3] however she did email the Respondent on 10 January 2022 to advise the online form did not provide an appropriate option for her response and that she had chosen not to disclose her personal medical information as doing so was never a condition of her employment.[4]
- [7]Pursuant to cl 9 of the Direction, from 17 December 2021, unvaccinated workers without a qualifying exemption must not enter a high-risk setting unless there is an emergency or permission is granted.
- [8]On 12 January 2022, the Respondent advised the Appellant she would be suspended on normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) (PS Act). That advice was contained in correspondence from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services. At that time, the Appellant was taking a period of approved recreation leave from 16 December 2021 to 14 January 2022.[5]
- [9]
- [10]On 15 March 2022, the Appellant provided a response.[8]
- [11]On 23 March 2022, Mr David Miller (the decision-maker) advised the Appellant of the decision to suspend her without remuneration effective immediately (the Suspension Decision).[9]
- [12]On 12 April 2022, the Appellant filed an Appeal Notice with the Industrial Registry.
Jurisdiction
The decision subject of this appeal
- [13]On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed as "a decision about suspension without pay".
- [14]On p 4 of the Appeal Notice, the Appellant provides:
Please note that this appeal is for the retraction of promised pay during my suspension.
If advised by the OIRC (sic) to do so – I would like to appeal the suspension in full as I feel it has been wrong…
- [15]On 20 April 2022, the Industrial Registry emailed the parties to advise:
The Industrial Registry cannot provide legal advice. However, the Appeal Notice seeks to appeal a Suspension Without Pay Decision, which is appealable pursuant to s 194(1)(bb) of the Public Service Act 2008 (Qld). That provision of the Act does not provide for a specific right to appeal against a decision to suspend an employee on normal remuneration. Regardless, the decision to do so in this instance appears to have been given on 12 January 2022 and therefore any endeavour to appeal that decision would first need to overcome the hurdle of being filed out of the statutory time limit.
Based upon the contents of the Appeal Notice, it appears Ms Prentis is seeking to appeal the Suspension Without Pay Decision contained in correspondence dated 23 March 2022. If that interpretation is incorrect, please address that in your written submissions.
- [16]In her submissions filed 28 April 2022, the Appellant advised, "I confirm that my appeal is in relation to the decision made on my suspension without pay on March 23rd by the Executive Director."
- [17]Then, in her submissions filed 11 May 2022, the Appellant advised, "To reiterate, my dispute is specifically over the Department retracting some of my pay during the original time frame of my suspension." On 23 May 2022, the Respondent noted that comment and wrote to the Industrial Registry to submit, "This is not a decision that can be the subject of an appeal before the Commission. The Department respectfully submits Ms Prentis' appeal should be dismissed on the basis it is misconceived."
- [18]On 13 May 2022, the Appellant expressed that she was confused about the process and sought options from the Department to resolve the matter. Ultimately, the parties agreed that as submissions had been filed, the next step was to await a decision from the Commission.[10]
- [19]From the information provided, I have discerned the Appellant is appealing the decision made by Mr Miller on 23 March 2022 – which I have defined as 'the Suspension Decision'. The decision-maker determined to suspend the Appellant without remuneration effective immediately and it appears the Appellant takes specific issue with the fact she was initially advised she would be suspended on normal remuneration for a particular period but then subsequently advised she would be suspended without remuneration.
- [20]Section 562C of 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.
- [21]Although the Appellant takes issue with a specific consequence of the Suspension Decision, rather than the Suspension Decision in its entirety – it is necessary for me to review the Suspension Decision in full to determine whether it was fair and reasonable. If I were to determine the Suspension Decision was not fair or reasonable, I may set that decision aside – in which case, the Appellant would receive the remedy she is seeking.
- [22]Section 194(1)(bb) of the PS Act provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. On that basis, I am satisfied the Suspension Decision is appealable.
Timeframe for appeal
- [23]Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
- [24]The Decision was given on 23 March 2022 and the Appeal Notice was filed on 12 April 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.
Consideration
Appeal principles
- [25]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".
- [26]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.
- [27]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.
- [28]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
- [29]I issued a Directions Order on 20 April 2022 inviting the parties to file written submissions.
- [30]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.
- [31]I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of the appeal.
Relevant provisions
- [32]Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.
- [33]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."
- [34]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:
- (a)the person is suspended under s 137(1)(b) of the PS Act; and
- (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.
- [35]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).
- [36]Section 187(1)(d) of the PS Act provides that the chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person".
Ground of appeal
- [37]The Appellant essentially contends it is not fair or reasonable to suspend her without remuneration because she was first informed she would be suspended with normal remuneration.[12]
- [38]The Appellant submits the following:
- the Appellant's approved recreation leave finished on 16 January 2022;
- the Appellant was originally advised she had been suspended with remuneration from 17 January 2022 to 16 April 2022;
- on 10 March 2022, the Appellant received a letter asking her to show cause as to why she should not be suspended without remuneration; and
- on 23 March 2022, the Appellant received the Suspension Decision advising she was suspended without remuneration effective immediately.[13]
- [39]The Appellant contends the Suspension Decision effectively retracts the earlier notice indicating she would be suspended with pay until 16 April 2022.[14] Therefore, the Appellant challenges the "days of pay that was promised" to her[15] and submits her financial planning included receiving the pay she was promised.[16]
- [40]In correspondence dated 12 January 2022, Ms Gillies-Day advised the Appellant:
I am of the reasonable view that you may be liable to discipline under a disciplinary law and I have decided to suspend you from duty on normal remuneration.
However, I note that you are currently on a period of approved leave. Based on the information available to me at this time, at the conclusion of your approved leave, you will not return to duty, as your suspension will take effect as at that date. From that date, your suspension will continue for a period of three months, unless otherwise advised.
- [41]In correspondence dated 10 March 2022, Mr Miller advised the Appellant (emphasis added):
I refer to previous correspondence you received advising that you may be in breach of The Department of Education (department) Employment Direction 1/21 – COVID-19 Vaccinations (Direction)…
At the time you were sent this correspondence, you were on a period of approved leave. I note that this period of leave has now concluded and that you are currently suspended from duty on normal remuneration pursuant to section 137(1)(b) of the Public Service Act 2008 (the Act) as there is reasonable belief that you are liable to discipline under a disciplinary law. I confirm that at this stage, your suspension will remain in effect until 10 June 2022.
Proposed suspension without normal remuneration (i.e. without pay)
I am now giving consideration to whether you should be suspended without pay pursuant to section 137(4) of the Act.
In accordance with the principles of natural justice, no determination has been made or will be made about whether you will be suspended without pay until you have had an opportunity to formally respond.
Opportunity to respond
If you would like to respond to why you should not be suspended without pay, please submit your response in writing. You will be afforded 7 calendar days to respond, and accordingly, your response should be provided no later than close of business on Thursday 17 March 2022.
…
On receipt and consideration of your response, I will determine whether to suspend you without pay. If you do not respond within the required timeframe, I will make a decision based on the information currently available to me.
You will remain on suspension with full pay until I have considered your response and made a determination as to whether to suspend you from duty without pay. You will be provided with further correspondence to advise you of my decision.
- [42]The Appellant contends that the Respondent's correspondence is misleading.[17]
- [43]Upon review of the above extract, I note Mr Miller advised the Appellant she would be suspended on normal remuneration that "at this stage" would remain in place until 10 June 2022. That comment clearly indicates that the arrangement is subject to change prior to 10 June 2022. That interpretation is supported by Mr Miller's subsequent indication that he is giving consideration to suspending the Appellant without remuneration and that he would determine that matter after the Appellant had an opportunity to formally respond – i.e., shortly after the seven days the Appellant was given to respond.
- [44]Mr Miller clearly advised that upon receipt of the Appellant's response and following consideration, he would proceed to determine whether to suspend the Appellant without remuneration and that the Appellant would only remain on full pay until that determination was made.
- [45]Upon review of the totality of the correspondence and the context within which it was issued, I find it was not unfair nor unreasonable for the decision-maker to make the decision to suspend the Appellant without remuneration at the time he did.
Statutory requirements
- [46]I have considered and rejected the Appellant's ground of appeal for the reasons outlined above. Although the following matters were not raised by the Appellant as a specific appeal ground, for completeness I will consider whether the decision maker has complied with the statutory requirements in arriving at the Suspension Decision.
Sections 137(1)(b) & 187(1)(d)
- [47]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.
- [48]Although the Suspension Decision does not include a disciplinary finding against the Appellant, the Respondent need only have a reasonable belief that the employee is liable to discipline under a disciplinary law. Notably, s 187(1)(d) of the PS Act prescribes grounds for discipline where an employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person". The Suspension Decision clearly stipulates that although the Appellant was directed to be vaccinated, she did not apply for an exemption and has not received the vaccination.[18]
- [49]In correspondence dated 12 January 2022, Ms Gillies-Day advised the Appellant, "I am of the reasonable view that you may be liable to discipline under a disciplinary law."[19]
- [50]In my view, the fact that the Appellant had refused and was refusing to comply with the Direction is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that the Appellant was liable to discipline under a disciplinary law.[20]
Alternative working arrangements
- [51]Section 137(3) of the PS Act requires the chief executive to "consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person."
- [52]The Appellant submits she could function in her role with an alternative, temporary, working arrangement because she works in a distance education setting and is only occasionally required to meet face-to-face with students or their families. The Appellant contends she can perform her duties effectively via online communication and flexible working arrangements were implemented throughout the pandemic.[21]
- [53]The Respondent submits that the Appellant's role includes developing and fostering relationships between the school and families of students, conducting home visits to advise and provide strategies for a more positive educational experience and being part of a professional team working with the school and community and liaising with a wide range of people. The Respondent contends that as a Youth Support Coordinator, the Appellant is required to be present in the school to assist students and teachers and that Cairns School of Distance Education offers educational services to both home-based and school-based learners.[22]
- [54]The Appellant herself concedes she has never worked from home as an employee of the Department.[23]
- [55]In the decision to suspend the Appellant with remuneration, Ms Gillies-Day advised the Appellant that after consideration, she had determined there were no reasonable alternative duties/arrangements or temporary transfer options available in light of the Appellant's alleged contravention of the Direction.[24]
- [56]The submissions suggest the Appellant has never performed her role from home, her role extensively requires her physical attendance at school and also requires she visit students' homes. It is not possible for the Appellant to perform all her duties from home. Although the Appellant may perform some duties from home, such arrangements could only reasonably be accommodated for short periods of time whereas under the current circumstances, it is the Appellant's election not to comply with the Direction that has resulted in her inability to attend the workplace.
- [57]Although working remotely has been accommodated for most employees in the past due to lockdown periods etc., it is not reasonable for the Appellant to expect her role could be accommodated remotely on a full-time basis in the long term as an alternative to complying with the Direction. That is not an appropriate solution and is not fair on the Appellant's colleagues and students.
- [58]As I found in Radev, there will inevitably be times where the Appellant is required to attend the school and intermingle with other staff members and students to fulfill her duties.[25] I appreciate the positions of Mr Radev and the Appellant are different but consider that the same principle applies in both circumstances.
- [59]In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Hartigan concluded the following:
I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community. [26]
- [60]Similarly, I am satisfied the decision maker considered the possibility of alternative working arrangements. However, in light of the various responsibilities that fall under the Appellant's role, I find that it was fair and reasonable for the Respondent to form the view that there were no alternative working arrangements available having regard to the Department's responsibility to manage the risks associated with COVID-19.
Section 137(4)(b)
- [61]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.
- [62]The decision-maker considered the nature of the discipline to which he believed the Appellant was liable and I am satisfied that was outlined in justification of suspension without pay as follows:
Unless an individual has a diagnosed medical contraindication or other qualifying exceptional circumstance the Direction is a reasonable one.
The information available to me indicates that you may have failed to comply with the Direction, and the length of time it may take you to comply with the Direction is outside the department's control.
…
You have had sufficient time to engage with the requirements of the Direction. The department has engaged with you on a number of occasions about what was required of you to comply with the Direction.
I am not in receipt of any material that indicates that you have been vaccinated. Nor am I in receipt of information that you have applied for or received an approved exemption due to medical contraindication or exceptional circumstances.[27]
Natural justice
- [63]Pursuant to s 137(9)(a) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice.
- [64]The correspondence from Mr David Miller dated 10 March 2022 affords the Appellant an opportunity to respond within seven calendar days to the proposed suspension without pay and states that "In accordance with the principles of natural justice, no determination has been made or will be made about whether you will be suspended without pay until you have had an opportunity to formally respond."[28] Mr Miller also advised that, "on receipt and consideration of your response I will determine whether to suspend you without pay."[29]
- [65]The Respondent annexed several pieces of correspondence from the Appellant that outline arguments she has presented in support of her decision not to receive the COVID-19 vaccination. As those pieces of correspondence were considered in making the Suspension Decision, it was appropriate for the Respondent to bring them to the attention of the Commission. Although I appreciate the Appellant did not specifically refer to or advance these arguments in this appeal herself, I will take them into consideration in determining whether the Suspension Decision was fair and reasonable.
- [66]The Appellant's arguments broadly fell under the following themes:
- the COVID-19 vaccination is an experimental medical procedure;
- receiving the COVID-19 vaccination was never a condition of employment;
- sharing personal medical information was never a condition of employment;
- the Direction is not permanent;
- the Respondent is coercing the Appellant to get vaccinated by threat of loss of income for non-compliance;
- human rights considerations;[30]
- discrimination;
- confusing and cumbersome processes for accessing help;[31]
- the government is interfering with doctors;
- information has been withheld; and
- no consultation.[32]
- [67]The Appellant also asked several questions of the Respondent.[33]
- [68]Notably, the Appellant contends that much of the above is irrelevant to this appeal because it raises issues of her beliefs with respect to the Direction.[34] Rather, it appears the Appellant is most concerned with the retraction of pay rather than the reasons to suspend her without pay in totality. I will therefore not delve into these issues in substantial depth but will make the following remarks.
- [69]I accept the Respondent's submission that the requirement to provide evidence of having received a COVID-19 vaccination does not require the Appellant to disclose her personal medical information, only evidence of vaccination.[35]
- [70]The Respondent is not responsible for allaying the Appellant's concerns or anxieties about receiving the COVID-19 vaccine. Significantly, the Appellant did not apply for an exemption against the requirements under the Direction. In my view, the omission of an exemption application supports the Respondent's conclusion that the use of public funds to continue paying the Appellant whilst she is suspended is not appropriate or reasonable in the circumstances.
- [71]In response to the remaining matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
- [39]The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.
…
[53] The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.[36]
- [72]I similarly conclude that the remaining matters raised by the Appellant evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters render the Suspension Decision unfair or unreasonable.
- [73]The Appellant's various arguments against the Direction may have been relevant at the stage of considering whether she was eligible for an exemption. However, the Appellant did not apply for an exemption and so at the point this matter came to the decision-maker, his consideration turned to whether the Appellant should be suspended without pay.
- [74]The Respondent appropriately considered the high level of risk to the health and wellbeing of students, families, Departmental workers and other key stakeholders who access Cairns School of Distance Education. I accept it was fair and reasonable for the Respondent to balance the Appellant's views against these important factors.
- [75]The significant number of reasons for why the Appellant takes issue with the Direction indicates that the Appellant does not intend to comply in the immediate future. That factor also suggests it is appropriate to suspend the Appellant without remuneration for the remainder of the disciplinary process.
- [76]For the reasons outlined above, the Appellant has not convinced me that the Suspension Decision is unfair or unreasonable. Further, I find that natural justice was complied with in these circumstances as the Respondent appropriately took into consideration the Appellant's position with respect to the Direction.
Section 137(9)(c)
- [77]Pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under this section, the chief executive must comply with Directive 16/20.
- [78]Clause 6 of Directive 16/20 relevantly provides:
- 6.Suspension without remuneration
- 6.1Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.
- 6.2A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
- 6.3In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:
- (a)the nature of the discipline matter
- (b)any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
- (c)the public interest of the employee remaining on suspension with remuneration.
- [79]I have already concluded above that the Respondent has considered the nature of the discipline matter. With respect to public interest, the Suspension Decision provides:
Given your failure to comply with the Direction, the time you have had to engage with and comply with the Direction, the engagement and consultation undertaken by the department, the nature of the discipline to which you may be liable and the time it may take to conclude the disciplinary process, I have determined it is not a responsible or appropriate use of public funds to allow you to continue to be paid while the process is underway.[37]
- [80]Further, the Respondent submits:
…while it is acknowledged the suspension without pay will have a financial impact on Ms Prentis, this is only one factor to be considered. This must be balanced against the Department's obligation to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds;[38]
- [81]I accept the Respondent's submissions that while it is acknowledged that suspension without pay will financially impact the Appellant, that is but one factor to be considered.[39] I find the decision-maker appropriately balanced those impacts against the Department's obligation to ensure the effective, efficient and appropriate use of public resources and the safety of the school community. Further, it is open to the Appellant to seek alternative employment elsewhere.
- [82]In light of the above excerpts, I am satisfied the Respondent complied with Directive 16/20.
Finding
- [83]For the reasons outlined above, I find the Respondent complied with the statutory requirements and have not identified any element that renders the Suspension Decision anything other than fair and reasonable.
Conclusion
- [84]The Suspension Decision set out evidence in support of the ultimate conclusion to suspend the Appellant without remuneration.
- [85]I am satisfied the Decision included intelligible justification following consideration of relevant matters. The Appellant's non-compliance with the Direction is serious and the evidence supporting the Decision is compelling in my view.
- [86]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, 12 April 2022, 1.
[2] Respondent's Submissions, 6 May 2022, 1 [4].
[3] Ibid 2 [10].
[4] Email from the Appellant to the Respondent, 10 January 2022.
[5] Respondent's Submissions, 6 May 2022, 2 [15].
[6] Letter from Mr D. Miller to the Appellant, 10 March 2022.
[7] Letter from Ms G. Gillies-Day to the Appellant, 12 January 2022.
[8] Email from the Appellant to Mr D. Miller, 15 March 2022.
[9] Letter from Mr D. Miller to the Appellant, 23 March 2022.
[10] Emails from the Parties to the Industrial Registry, 18 May 2022.
[11] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].
[12] Appeal Notice, 12 April 2022, 4.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid Annexure.
[17] Appellant's Submissions in Reply, 11 May 2022.
[18] Letter from Mr D. Miller to the Appellant, 23 March 2022, 1-2.
[19] Letter from Ms G. Gillies-Day to the Appellant, 12 January 2022.
[20] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [28]-[30].
[21] Letter from the Appellant to Mr D. Miller, 15 March 2022.
[22] Respondent's Submissions, 6 May 2022, 4 [26]-[27].
[23] Appellant's Submissions in Reply, 11 May 2022.
[24] Letter from Ms G. Gillies-Day to the Appellant, 12 January 2022.
[25] [2021] QIRC 414, [54].
[26] [2022] QIRC 002.
[27] Letter from Mr D. Miller to the Appellant, 23 March 2022.
[28] Letter from Mr D. Miller to the Appellant, 10 March 2022.
[29] Ibid.
[30] Letter from the Appellant to Mr D. Miller, 15 March 2022.
[31] Appellant's Submissions, 28 April 2022, 2.
[32] Email from the Appellant to the email addresses of numerous Electorate Offices, 23 December 2021.
[33] Letter from the Appellant to Mr D. Miller, 15 March 2022.
[34] Appellant's Submissions in Reply, 11 May 2022.
[35] Respondent's Submissions, 6 May 2022, 4 [25].
[36] [2022] QIRC 002.
[37] Letter from Mr D. Miller to the Appellant, 23 March 2022.
[38] Respondent's Submissions, 6 May 2022, 5 [30]d).
[39] Ibid.