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  4. Merrett v State of Queensland (Queensland Police Service) - [2022] QIRC 23

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Merrett v State of Queensland (Queensland Police Service)[2022] QIRC 23

Merrett v State of Queensland (Queensland Police Service)[2022] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Merrett v State of Queensland (Queensland Police Service) [2022] QIRC 023

PARTIES: 

Merrett, Della

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2021/429

PROCEEDING:

Public service appeal – Suspension without pay decision

DELIVERED ON:

1 February 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a suspension without pay decision – where respondent alleges appellant did not comply with Queensland Police Service Instrument of Commissioner's Direction No. 12 – where disciplinary process on foot – where appellant suspended from duty without remuneration – where appellant submits that the decision is unfair and unreasonable – where appellant submits that the respondent did not consider all suitable alternatives or allow the appellant to take personal leave whilst suspended – where respondent did have regard to suitable alternatives – where respondent submits that the Public Service Act 2008 (Qld) does not permit an employee to be simultaneously on approved leave and suspended – where decision is fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Police Service Administration Act 1990 (Qld), ss 2.3 and 4.8

Public Service Act 2008 (Qld), ss 137, 187, and 194

Queensland Police Service Instrument of Commissioner's Direction No. 12, cls 2, 3, 6, 7, 8, 9 and 15

Suspension (Directive 16/12), cls 5 and 6

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Reasons for Decision

  1. [1]
    Ms Della Merrett ('Ms Merrett') is employed by the State of Queensland, Queensland Police Service ('QPS') ('the Respondent'), as a Communications Room Operator (AO3) in the Cairns Communications Centre.
  1. [2]
    This appeal has been commenced in the context of Ms Merrett allegedly failing to comply with a directive, which required Ms Merrett to comply with the requirements of the Queensland Police Service Instrument of Commissioner's Direction No. 12, concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members retained by the QPS ('Direction 12').[1]
  1. [3]
    On 14 October 2021, the Respondent issued Ms Merrett with a Notice of Suspension with Remuneration pursuant to s 137(1)(a) of the Public Service Act 2008 (Qld) ('PS Act'), and a show cause notice for Suspension without Remuneration in response to an allegation against Ms Merrett. The allegation against Ms Merrett relates to Ms Merrett's alleged failure to comply with a workplace directive. Specifically, it was alleged that
    Ms Merrett failed to comply with a workplace directive that required Ms Merrett to confirm that she had received at least the first dose of a COVID-19 vaccine by 4 October 2021 ('the allegation').
  1. [4]
    The correspondence dated 14 October 2021 also enclosed an Executive Briefing Note[2] with a number of attachments.[3] The Executive Briefing Note set out information including background and details to the allegation, and a recommendation to the Assistant Commissioner Ethical Standards Command to suspend Ms Merrett which could be accepted or rejected by the Assistant Commissioner.
  1. [5]
    Ms Merrett received the Notice of Suspension, including the Executive Briefing Note and the show cause notice for Suspension without Remuneration on 20 October 2021.
  1. [6]
    Ms Merrett responded to the Notice of Suspension and the show cause notice for Suspension without Remuneration on 26 October 2021.
  1. [7]
    By letter dated 26 November 2021, the Respondent advised Ms Merrett in accordance with s 137(1)(b) of the PS Act, that the Respondent had a reasonable belief that she was liable to discipline under Ch. 6 of the PS Act in relation to the allegation, and, after consideration of all the material, that Ms Merrett be suspended from duty without remuneration in accordance with s 137(4)(b) of the PS Act, effective from 3 December 2021 until 3 June 2022, unless revoked earlier ('the decision').
  1. [8]
    The letter also stated that Ms Merrett was entitled to apply for payment of her recreational and long service leave entitlements accrued prior to the date the suspension without remuneration took effect, namely 2 December 2021.
  1. [9]
    By notice of appeal filed on 15 December 2021, Ms Merrett appealed the decision of the Respondent dated 26 November 2021. Ms Merrett relies on the following matters, relevantly summarised, in support of her appeal:
  1. (a)
    the suspension without pay is for failing to comply with Direction 12;
  1. (b)
    Ms Merrett attended a vaccination centre in an attempt to get vaccinated but was refused by Queensland Health;
  1. (c)
    Ms Merrett advised the Commissioner of the Queensland Police Service ('the Commissioner') on 24 September 2021 of her attempt to comply with Direction 12;
  1. (d)
    Ms Merrett requested 'further and better particulars' from the Commissioner on 28 September 2021, however Ms Merrett was advised to cease and desist any direct contact with the Commissioner and was advised that she would not receive a response to her request;
  1. (e)
    on two occasions prior to the 4 October 2021 vaccine mandate imposed by Direction 12, Ms Merrett offered to go on leave, but was denied;
  1. (f)
    on two occasions prior to the 14 October 2021 decision to suspend
    Ms Merrett, she requested to take leave, but this was denied by the Respondent;
  1. (g)
    section 137 of the PS Act and cl 5.2 of Suspension (Directive 16/20), require the chief executive to consider all reasonable alternatives before suspending an employee and Ms Merrett was not offered rostering and other office duties which Ms Merrett could undertake from home prior to being suspended; and
  1. (h)
    Ms Merrett was only advised by the Respondent following the decision to suspend her without remuneration, that she can access payments from her accrued leave balances and Ms Merrett submits this is unacceptable as she would still be on suspension, and not on a form of leave.
  1. [10]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [11]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[4] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [12]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[5] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[6]
  1. [13]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [14]
    The decision relates to an allegation put by the Respondent to Ms Merrett on 14 October 2021 regarding her alleged conduct as follows:

It is alleged that you have not been granted an exemption from the Direction and, therefore, you have 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 Inspector Brett Seeto by 4 October 2021 as required by clause 7(c) of the Direction.

  1. [15]
    In the decision dated 26 November 2021, the Respondent advised Ms Merrett of its decision to suspend her without remuneration pursuant to s 137(4)(b) of the PS Act, and provided the following reasons in support of its decision:
  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 [sic] 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. [16]
    The decision provided the following details in respect of the operation of the suspension without remuneration:

Suspension without remuneration

Your suspension with remuneration imposed by me on 14 October 2021 shall continue until midnight on 3 December 2021 at which time your suspension without remuneration will take effect and remain in force until 3 June 2022, unless revoked earlier.

However, during your period of suspension without remuneration you may apply for payment for recreational and long service leave entitlements accrued prior to the date your suspension without remuneration takes effect.

  1. [17]
    The decision dated 26 November 2021 also advised Ms Merrett that no adverse finding or determination had been made against her in relation to the allegation at this point in time.

Relevant legislation

  1. [18]
    Section 194 of the PS Act provides for decisions against which appeals may be made as follows:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

…

  1. [19]
    Section 137 of the PS Act provides for the suspension of a public service employee as follows:

137  Suspension

  1. (1)
    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
  1. (a)
    for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  2. (b)
    for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  2. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—
  1. (a)
    the person is suspended under subsection (1)(b); and
  2. (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. (9)
    In suspending a public service employee under this section, the chief executive must comply with—
  1. (a)
    the principles of natural justice; and
  1. (b)
    this Act; and
  1. (c)
    the directive made under section 137A.
  1. [20]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [21]
    Suspension (Directive 16/20) ('Directive 16/20') commenced operation on 25 September 2020, and amongst other things, describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension.
  1. [22]
    Clause 5 of Directive 16/20 provides for suspension of a person from duty in the following terms:

5  Suspension considerations

5.1  Suspension

  1. (a)
    Section 137 of the PS Act provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes:
  1. (i)
    For a public service officer- the proper and efficient management of the department might be prejudiced if the officer is not suspended
  2. (ii)
    for a public service employee  - the employee is liable to discipline under a disciplinary law .
  1. (b)
    Section 137(2) provides that suspension notice must state:
  1. (i)
    when the suspension starts and ends
  2. (ii)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (iii)
    the effect that alternative employment may, under subsection

Suspension notices must state an end date or express the period of the suspension in terms of a specified number of weeks or months. It is not sufficient to state that suspension will end by reference to events, such as ‘until this disciplinary process is finalised’, or to state that the suspension will continue until ‘otherwise determined’.

  1. (c)
    Section 137(8) provides that the chief executive may cancel a suspension at any time.

5.2  Obligation to consider all reasonable alternatives

  1. (a)
    Section 137(3) of the PS Act provides that a chief executive must consider all reasonable alternatives before suspending an employee.
  2. (b)
    The alternative duties do not have to form part of an established role and can be outside the employee’s usual place of work.
  3. (c)
    Employers are required to document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. This could include:
  1. (i)
    temporary transfer to alternative duties (either in the employee’s workplace or at another workplace)
  2. (ii)
    directing the employee to work under close supervision or with another employee
  3. (iii)
    asking the employee if they wish to access accrued recreation and/or long service leave (access to accrued leave is at the discretion of the employee).
  1. [23]
    Clause 6 of Directive 16/20 provides for suspension of an employee from duty without remuneration in the following terms:

6.  Suspension without remuneration

6.1  Section 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.

6.2  A 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.

6.3  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
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.

6.4  A decision to suspend an employee without remuneration is subject to the principles of natural justice. 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 evidence1. As part of the suspension process:

  1. (a)
    The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
  2. (b)
    The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.
  3. (c)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.
  4. (d)
    If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

…

  1. [24]
    Direction 12 sets out the mandatory vaccination requirements for all staff members who are deemed as, relevantly, frontline support staff members within the meaning of cl 15 of Direction 12. Clause 15 of Direction 12 sets out the relevant definitions for the direction and provides for the definition of a 'frontline support staff member' as follows:

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

  1. [25]
    Clause 6 of Direction 12 identifies who the direction applies to, and, relevantly, includes frontline support staff members.[7]
  1. [26]
    Clause 2 of Direction 12 provides for the purpose of the direction, having regard to the Respondent's responsibilities pursuant to s 2.3 of the Police Service Administration Act 1990 (Qld) ('Police Service Administration Act'). Section 2.3 of the Police Service Administration Act is in the following terms:

2.3  Functions of service

The functions of the police service are the following—

  1. (a)
    the preservation of peace and good order—
  1. (i)
    in all areas of the State; and
  2. (ii)
    in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands;
  1. (b)
    the protection of all communities in the State and all members thereof—
  1. (i)
    from unlawful disruption of peace and good order that results, or is likely to result, from—
  1. (A)
    actions of criminal offenders;
  2. (B)
    actions or omissions of other persons;
  1. (ii)
    from commission of offences against the law generally;
  1. (c)
    the prevention of crime;
  2. (d)
    the detection of offenders and bringing of offenders to justice;
  3. (e)
    the upholding of the law generally;
  4. (f)
    the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of—
  1. (i)
    the provisions of the Criminal Code;
  2. (ii)
    the provisions of all other Acts or laws for the time being committed to the responsibility of the service;
  3. (iii)
    the powers, duties and discretions prescribed for officers by any Act;
  1. (g)
    the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are—
  1. (i)
    required of officers under any Act or law or the reasonable expectations of the community; or
  2. (ii)
    reasonably sought of officers by members of the community.
  1. [27]
    Section 4.8 of the Police Service Administration Act sets out the Commissioner's responsibility in the following terms:

4.8  Commissioner's responsibility

  1. (1)
    The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.
  1. (2)
    Without limiting subsection (1), a regulation may prescribe—
  1. (a)
    particular matters within the scope of the prescribed responsibility; or
  1. (b)
    additional responsibilities of the commissioner.
  1. (3)
    The commissioner is authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility.
  1. (4)
    In discharging the prescribed responsibility, the commissioner—
  1. (a)
    is to comply with all relevant industrial instruments and determinations and rules made by an industrial authority; and
  1. (b)
    subject to this Act, is to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner; and
  1. (c)
    is to have regard to section 4.6 and ministerial directions duly given thereunder; and
  1. (d)
    is to discharge the responsibility in relation to such matters as are prescribed for the time being.
  1. [28]
    Clause 2 of Direction 12 sets out the purpose of the direction as follows:

In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID-19 through the Queensland Police Service would take police officers and staff members out of service while they undertake quarantine periods or recover from COVID-19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.

  1. [29]
    Clause 3 of Direction 12 provides for the reasons as to why the direction applies to staff members, other than police officers who are on the front line in the following terms:
  1. While it is primarily police officers who are on the front line, many staff members:
  1. have close working relationships with police officers;
  1. interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and
  1. are missions critical, such as staff members stationed at Communication Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir)
  1. [30]
    Clause 7 of Direction 12 sets out the requirements for vaccination against COVID-19 and relevantly provides:
  1. Unless a police officer or staff member is exempt under paragraph 8 or 9, all police officers and staff members must:
  1. receive at least one dose of a COVID-19 vaccine by 4 October 2021; and
  1. receive a second dose of a COVID-19 vaccine by 24 January 2022; and
  1. provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner of Police (or delegate).
  1. [31]
    Clauses 8 and 9 of Direction 12 provides that where an employee is unable to be vaccinated, an exemption may be granted on the following bases:
  1. A police officer or staff member is exempt from the requirements in paragraph 7 if:
  1. the police officer or staff member is unable to vaccinated due to a medical contraindication; and
  1. the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining;
  1. (i)
    the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and
  1. (ii)
    whether the condition is temporary in nature, and, if so the duration
  1. A police officer or staff member is also exempt from the requirements in paragraph if the Commissioner of Police (or delegate) grants an exemption:
  1. due to a genuine religious objection; or
  1. due to other exceptional circumstances.

Whether the decision is fair and reasonable

  1. [32]
    It is not in dispute that the Respondent issued a direction to Ms Merrett in the terms of cl 7 of Direction 12. Relevantly, Ms Merrett was required to have received at least the first dose of a COVID-19 vaccine by 4 October 2021.
  1. [33]
    From the material, it is apparent that Ms Merrett did not apply, pursuant to cl 8 or 9 of Direction 12, for an exemption from complying with cl 7 of Direction 12, prior to 4 October 2021. Accordingly, the decision maker has determined that Ms Merrett is liable to discipline. However, no decision with respect to whether the allegation is substantiated or not has been made in the disciplinary process.
  1. [34]
    Relevantly, in this appeal, I must determine whether the decision to suspend Ms Merrett without remuneration was fair and reasonable.
  1. [35]
    Ms Merrett raises a number of matters in her submissions that are relevant to her  position with respect to the allegation, for instance:
  1. (a)
    that Ms Merrett contends that she attended a vaccination centre in an attempt to get vaccinated but was refused by Queensland Health;
  1. (b)
    that Ms Merrett contends that she advised the Commissioner on 24 September 2021 of her attempt to comply with Direction 12; and
  1. (c)
    that Ms Merrett requested further and better particulars from the Commissioner on 28 September 2021, however Ms Merrett was advised to cease and desist direct contact with the Commissioner and was advised she would not receive a response to her request.
  1. [36]
    These matters are matters which are relevant to the consideration as to whether the allegation may be substantiated or not. Ms Merrett will be given an opportunity to make further submissions about such matters during the course of the disciplinary process. It is my view that these matters are more relevant to Ms Merrett's position with respect to the allegation and as such, these matters are not relevant to my consideration of the decision which is the subject to the appeal.
  1. [37]
    With respect to the matters relevant to this appeal, Ms Merrett submits:
  1. (a)
    that in considering alternative duties, the decision maker failed to have regard to duties that did not form part of an established role or could be conducted outside of Ms Merrett's usual workplace; and
  1. (b)
    Ms Merrett was not permitted to access paid leave in the middle of the suspension without remuneration.
  1. [38]
    With respect to Ms Merrett's submission that the decision maker did not consider all reasonable alternatives prior to suspending her without remuneration, relevantly, in the decision, the decision maker referred to the provisions of s 4.8 of the Police Service Administration Act 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 refers to this obligation as including an obligation to comply with the Work Health and Safety Act 2011 (Qld) ('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 QPS.
  1. [39]
    The decision continues by stating that the alleged failure by Ms Merrett to comply with Direction 12, impacts on the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in s 4.8 of the Police Service Administration Act and the Commissioner's obligations under the WHS Act.
  1. [40]
    The decision further states that alternatives such as temporary transfers or another alternative working arrangement have been considered, however, because of the nature of Ms Merrett's role as a frontline support staff member, together with the location of the role, and in consideration of the safety of the workplace, the workforce and of the community, it was determined that suitable meaningful alternative duties were not available.
  1. [41]
    I consider it was open to the decision maker to determine, having regard to the role performed by Ms Merrett, together with the safety consideration relating to the workplace, workforce and the community, that there was a sound basis to conclude that there were no alternative employment opportunities available for Ms Merrett in circumstances where she has not had the first dose of the vaccine.
  1. [42]
    Ms Merrett further contends that the Respondent should have allowed her to access her own leave instead of determining to suspend her without remuneration.
  1. [43]
    In this regard, I accept the Respondent's submissions that an employee cannot be simultaneously on approved leave and be suspended under the PS Act. In the circumstances of this matter, there is a reasonable factual basis to support a conclusion that a suspension without remuneration is appropriate in the circumstances. Further, Ms Merrett has not identified any matters which support a conclusion that the suspension was not in accordance with s 137 of the PS Act. In such circumstances, where there is a basis for a suspension to occur, it is not appropriate for an employee to instead be offered to undertake a period of leave in lieu of being suspended without pay.
  1. [44]
    I further note that the decision relevantly provides that during the period of suspension without remuneration, Ms Merrett may apply for payment of recreational and long service leave entitlements accrued prior to the date of suspension without remuneration taking effect.
  1. [45]
    For these reasons I consider that the decision was fair and reasonable.

Order

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

Footnotes

[1] Direction 12 was superseded by Queensland Police Service Instrument of Commissioner's Direction No. 14 on 14 December 2021, however the superseded direction is not relevant to this appeal.

[2] Respondent's submissions filed on 5 January 2022, Attachment C.

[3] Attachments not provided.

[4] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[5] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[6] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[7] Queensland Police Service Instrument of Commissioner's Direction No. 12, cl 6(b)(ii).

Close

Editorial Notes

  • Published Case Name:

    Merrett v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Merrett v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 23

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    01 Feb 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

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

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