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  4. Wilson v State of Queensland (Queensland Police Service) - [2022] QIRC 329

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Wilson v State of Queensland (Queensland Police Service)[2022] QIRC 329

Wilson v State of Queensland (Queensland Police Service)[2022] QIRC 329

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329

PARTIES: 

Wilson, Sara Elizabeth

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2022/372

PROCEEDING:

Public Service Appeal – appeal against a decision made under a directive

DELIVERED ON:

19 August 2022

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal.
  1. The Appellant's application for suppression is refused.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE – appeal – appeal against a direction to attend an independent medical examination (IME) – application for suppression order where appellant has been continually off work for an extended period of time – where appellant has provided medical certificates in support of absence – where appellant directed to attend an IME – where appellant sought a review of the direction – consideration of whether to hear the appeal – appeal dismissed – suppression application refused 

LEGISLATION:

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

Public Service Act 2008 (Qld) ss 174, 175

Independent Medical Examinations Directive 10/20 cls 1, 4, 5 and 8

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97(3)(b)

CASES:

R v O'Dempsey (No 3) [2017] QSC 338

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Phillips v the State of Queensland (Department of Transport and Main Roads) [2022] QIRC 120

AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133

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)

Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2) [2019] QIRC 133

Reasons for Decision

Background

  1. [1]
    Ms Sara Elizabeth Wilson is employed as a Client Service Officer in Policelink, Road Policing and Regional Support Command ('substantive role') with the Queensland Police Service ('QPS').
  1. [2]
    Ms Wilson appeals a decision of the QPS of 16 February 2022. This decision directs Ms Wilson to attend an independent medical examination ('IME') pursuant to ss 174 and 175 of the Public Service Act 2008 (Qld) ('PS Act') ('the IME direction'). The IME was scheduled to occur on 31 March 2022 at 9.00am.
  1. [3]
    It is not disputed that Ms Wilson has been continuously absent from the workplace since 31 August 2021. Consecutive medical certificates have been provided to the QPS from Ms Wilson's treating General Practitioner (Dr Rob Ruberry) citing a medical condition.[1]
  1. [4]
    On 11 March 2022, Ms Wilson filed an appeal notice in the Industrial Registry in respect of the IME direction issued on 16 February 2022. In her appeal notice, Ms Wilson contends the QPS has not transcribed her absences directly from the medical certificates she has supplied and have not listed her absences until the time at which they issued the IME direction.
  1. [5]
    Ms Wilson contends the QPS have not provided examples of how their reasonable suspicion of an illness would impact the performance of her duties inherent to her substantive role.
  1. [6]
    Directions were issued from my chambers on 16 March 2022. Amended directions were issued on 29 March 2022 following an extension request from Ms Wilson ('the first delay'). Another extension request was sent to the registry on 19 April 2022. Further directions were issued on this date. Ms Wilson filed her submissions on 20 April 2022 ('the second delay').
  1. [7]
    A mention was scheduled for 26 April 2022 at 2.00pm. On 22 April 2022, Ms Wilson wrote to the registry seeking 'a delay in the mention'. Ms Wilson's reason was inter alia that she had sought industrial advice.
  1. [8]
    It was confirmed with the parties via email on 22 April 2022 that the mention on 26 April 2022 would proceed for the purpose of assessing if the current directions were appropriate, given the numerous requests for extensions that had been requested by Ms Wilson at such an early stage in the appeal.
  1. [9]
    At the mention on 26 April 2022 Ms Wilson was reminded of the narrow jurisdiction the Queensland Industrial Relations Commission ('the commission') has in dealing with public service appeals. Further after considering her submissions at the mention, it seemed apparent (at least on a preliminary view) that the IME direction Ms Wilson is appealing satisfied the requirements of s 174 of the PS Act in that:
  • Ms Wilson confirmed that she had been absent from duty (since August 2021); and
  • that she had consistently provided medical certificates to explain her absence.
  1. [10]
    In those circumstances it seemed difficult to see how the requisite reasonable suspicion of the chief executive's delegate was not met.
  1. [11]
    Consequently, Ms Wilson was directed to provide submissions as to the arguable nature of her case pursuant to s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act').[2] Formal directions were subsequently issued.
  1. [12]
    On 17 May 2022, Ms Wilson wrote to the registry seeking a 'three to four' week delay for each of the directions. The QPS emailed the registry outlining their objection to this request. A multitude of emails then ensued between the parties between 17 and 20 May 2022 making arguments and counter arguments for and against the proposed delay.
  1. [13]
    On 24 May 2022, having regard to the emails, I wrote to the parties and advised the extension would not be granted as Ms Wilson had already been provided a generous time frame to provide her submissions.
  1. [14]
    On 1 June 2022, Ms Wilson again sought an extension, and this time provided a medical certificate.
  1. [15]
    I subsequently listed the matter for a further mention on 6 June 2022. I reiterated to Ms Wilson at the mention that I required her submission in relation to s 562A of the IR Act. I provided Ms Wilson with a further two days to prepare her submissions in subsequent directions issued on 6 June 2022 ('the third delay').
  1. [16]
    Ms Wilson emailed the registry requesting a further adjournment of the matter on 9 June 2022. This request was not granted. Ms Wilson ultimately filed her submissions on 9 June 2022 in email form.
  1. [17]
    Additionally, on 9 June 2022 Ms Wilson filed a General Protections complaint in the registry ('the GP matter').[3] She advised the registry that the GP matter related to the decision not to offer her suitable duties.
  1. [18]
    On 15 July 2022 Ms Wilson wrote to the registry seeking an adjournment of this matter generally, stating she had now engaged legal representation and purported to be preparing to negotiate her return to work. She foreshadowed a discontinuance of this appeal. The QPS immediately opposed the request for adjournment.
  1. [19]
    On 18 July 2022 Ms Wilson was informed that the matter was proceeding and that no adjournment would be granted.
  1. [20]
    On 26 and 27 July 2022 Ms Wilson wrote to the registry (in somewhat confusing terms) and cited inter alia details of a recent illness she had experienced.
  1. [21]
    The QPS subsequently filed a short objection to the GP matter asserting the application lacked competence. A cursory perusal of the pleadings of Ms Wilson revealed the merit of the objection of the QPS. 
  1. [22]
    The GP matter was listed for mention on 2 August 2022. It had been intended that Ms Wilson would be placed on notice of the apparent incompetence of the GP matter and invited to make submissions as to why it should not be dismissed.
  1. [23]
    On 1 August 2022, one day before the scheduled mention of the GP matter, Ms Wilson formally discontinued it.
  1. [24]
    There have been other emails received from Ms Wilson since 1 August 2022. It is unnecessary to list them in these reasons, suffice to say that she has been overt in her desire to have any decision in response to the s 562A submissions delayed. 
  1. [25]
    Since receipt of final submissions on the s 562A issue Ms Wilson has been advised that a decision is pending and there will be no further delay or adjournment of this matter. Notwithstanding this, on 16 August 2022 Ms Wilson filed a dispute notification.[4] The dispute was allocated to me.
  1. [26]
    The subject matter of the dispute is the alleged failure to provide return to work opportunities to Ms Wilson. It is further asserted that if the dispute is decided in Ms Wilson's favour, it will alleviate the necessity for the IME. In other words, the dispute is an ancillary attack on the decision that is the subject of this appeal.
  1. [27]
    I have determined to hold the dispute in abeyance until these reasons are published.    

Application for suppression

  1. [28]
    On 22 June 2022, Ms Wilson filed an application in existing proceedings seeking that a suppression order be issued. Ms Wilson seeks that her 'entire matter' is suppressed and is not published or accessible to the public.
  1. [29]
    Ms Wilson clarifies in an email of 24 June 2022 that her application relies on rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), which provides that the Commission may:
  1. (3)
    Modify a document before publication in a way that does not affect the essence of the document.
  1. [30]
    I will address that application in my consideration below.

Legislation

 The appeal against the IME Direction

  1. [1]
    Chapter 5, Part 7 of the PS Act provides that an employee may be directed to attend an IME on the basis of mental or physical incapacity.
  1. [2]
    Section 174 of the PS Act provides as follows:

174  Application of pt 7

This part applies to a public service employee if—

  1. (a)
    the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
  1. (b)
    the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

  (emphasis added) 

  1. [3]
    Section 175 of the PS Act provides:

175 Chief executive may require medical examination

The chief executive may-

  1. (a)
    appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
  2. (b)
    require the employee to submit to the medical examination.
  1. [31]
    The relevant directive is Directive 10/20 Independent Medical Examinations ('the directive'). The directive provides for the practical application of ss 174 and 175 of the PS Act.
  1. [4]
    Clause 1 of the directive explains the purpose of the directive in the following terms:

This directive affirms the government's commitment to workplace health, safety and wellbeing for all employees by clarifying the practical application of sections 174 and 175 of the Public Service Act 2008 (PS Act), by providing that an employee may seek an internal review and may appeal a decision requiring them to submit to an independent medical examination (IME) where the PS Act conditions have not been met.

  1. [5]
    Clause 4 of the directive outlines the relevant principles:

4.1  The Queensland Government is committed to supporting public service employees who experience illness or injury to maintain their employment, including, where appropriate, through the application of reasonable adjustment.

4.2  It is expected that managers and employees will work together to:

  1. (a)
    manage work performance and absence in an appropriately supportive manner, including where a medical condition may be a contributing factor
  2. (b)
    where an IME report has been obtained, explore opportunities for continuing employment in line with it before considering ill health retirement of an employee under the PS Act
  3. (c)
    communicate regularly, openly and constructively, including while the employee is absent, or during performance management processes. Mutual information sharing is expected to occur and is likely to improve outcomes for employees' health, safety, wellbeing and performance.

4.3  The PS Act provides a mechanism for seeking independent medical advice. A PS Act IME under section 175 is to be used only where the conditions in section 174 have been met.

4.4  The chief executive is to ensure that processes are fair and without bias, provide for impartiality and inform and involve the employee. When making a decision about an IME for an employee, it is expected that the chief executive will also comply with the IME guideline, privacy obligations and any other relevant legislation.

4.5  The directive provides an employee with the right to seek an internal review of a decision requiring them to submit to a medical examination under sections 174 and 175 of the PS Act. This allows both the employee and the chief executive to ensure the conditions of the PS Act have been met.

4.6  The directive provides a mechanism for appealing a requirement to submit to an independent medical examination and confirms the expectation that processes under sections 174-179 of the PS Act will be implemented with appropriate support, sensitivity, and respect in accordance with the management and employment principles of the PS Act.

4.7  The chief executive will make appropriate delegations of the decision-making powers under sections 174-179 of the PS Act to support the internal review process in clause 6.

4.8  Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

  1. [6]
    Clause 5 of the directive provides for making the decision to require an employee to sit a medical examination and is set out as follows:

5.1 In some cases, early communication and management efforts may not be successful in addressing performance issues or a current absence.

5.2  Where the conditions in section 174 are satisfied, section 175 of the PS Act provides that a chief executive may appoint a doctor to examine the employee and give the chief executive a written report on the examination. It also provides that a chief executive may require the employee to submit to the medical examination. This is a lawful direction that does not require the employee's consent. Failure to comply may be grounds for discipline action.

5.3  The conditions in sections 174(a) and (b) of the PS Act must both be met before a chief executive may require the employee to submit to a medical examination. Firstly, section 174(a) requires that an employee is either absent from duty (which is a question of fact) OR the chief executive must have sufficient grounds, supported by evidence, to be reasonably satisfied the employee is not performing their duties satisfactorily. Secondly, in section 174(b), the chief executive must have sufficient grounds, which have been documented, to support their reasonable suspicion that the employee's current absence or unsatisfactory performance is caused by a mental or physical illness or disability.

5.4  Where an employee's absence is relied upon, the chief executive must reasonably suspect it is caused by mental or physical illness or disability and not another reason, for example, a suspension unrelated to mental or physical illness or disability.

5.5  The chief executive is to provide the employee with at least 28 days notice of a medical examination appointment unless the employee agrees to a shorter notice period. The direction to require an employee to submit to a medical examination must set out the basis and reasons for the direction under section 174, including the information provided to the IME doctor. The direction must also explain the employee's right to seek an internal review or appeal the decision and the timeframes.

  1. [7]
    Clause 8 of the directive provides for an employee's appeal rights in relation to a requirement to submit to a medical examination:

8.1  Section 194(1)(a) of the PS Act allows for an appeal of a decision made under a directive. An employee may seek either an internal review or an appeal of a decision requiring them to submit to a medical examination, on the basis the decision does not satisfy the conditions of section 174 of the PS Act. Where the employee does not seek an internal review under clause 7, an appeal must be made within 21 days of the decision, or within the time determined by the Queensland Industrial Relations Commission (QIRC).

8.2  Where the employee has sought an internal review under clause 7, and the internal review decision requires them to submit to a medical examination, the employee may, under this directive, appeal the internal review decision on the basis that it does not satisfy the conditions of section 174 of the PS Act. The appeal must be made within 21 days of the internal review decision or within the time required by the QIRC.

8.3  The internal review and appeal rights may not be exercised concurrently.

8.4  An appeals guide has been designed to help explain the appeal process and can be found on the QIRC website.

  1. [32]
    Section 562A of the IR Act relevantly provides:
  1. (1)
    …
  1. (2)
    …
  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. (a)
    the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
  1. (b)
    the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
  1. (i)
    is frivolous or vexatious; or
  1. (ii)
    is misconceived or lacks substance; or
  1. (iii)
    should not be heard for another compelling reason.

The application for suppression

  1. [33]
    There is well established jurisprudence with respect to the broad principles that should inform my discretion to suppress details of a matter. In R v O'Dempsey (No 3),[5] it was held:

The principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined.

Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done.

  1. [34]
    Some exceptions to this principle were identified in the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales,[6] where it was observed:

Exceptions have been allowed by the common law to protect police informers; blackmail cases; and cases involving national security. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case.

Submissions of the parties

Submissions of Ms Wilson

  1. [35]
    Ms Wilson submits that the QPS has not provided examples of how their reasonable suspicion of an illness or disability would impact the duties inherent to her substantive role.
  1. [36]
    Ms Wilson contends that medical condition is different. She submits the letters from her general practitioner (which she has provided to injury management) outline a work-related genesis of her condition. Her submission purports to rely on statements from her general practitioner and assertions as to the work-related nature of her condition.
  1. [37]
    Ms Wilson does not attach any medical certificates or letters relevant to the period preceding the decision under appeal with her submissions.
  1. [38]
    Ms Wilson's submissions then discuss (irrelevantly) an alleged direction issued by Acting Superintendent Kevin Fitzgibbon to Injury Management on 3 May 2022 to not proceed with suitable duties placements external to Ms Wilson's substantive role.
  1. [39]
    Ms Wilson's submissions largely rely on facts that have arisen after the date of the decision and, with the exception of the assertion that the decision maker did not demonstrate reasonable belief, do not address why the appeal should be heard pursuant to section 562A of the IR Act, in accordance with the directions orders.
  1. [40]
    Ms Wilson's submissions simply seek to argue the merits of her appeal by asserting (irrelevantly) that her condition has some relationship to her employment or that (subsequent to the decision under review) she has been able to produce a (heavily qualified) opinion from a newly acquired treating doctor supporting a return to work in certain limited circumstances. 

Submissions of the QPS

  1. [41]
    The QPS submits that Ms Wilson's doctor, Dr Rubbery diagnosed Ms Wilson with a medical condition in July 2021 which was amended to a related condition in October 2021. In April 2022, Dr Chopra diagnosed Ms Wilson with a similar medical condition.
  1. [42]
    The QPS notes Ms Wilson has not provided informed consent to enable the QPS to discuss any medical issues with her treating physician.
  1. [43]
    The QPS provides the following chronology:
  • In October 2021, Ms Wilson lodged an application for compensation with WorkCover Queensland which was denied in February 2022;
  • Between November 2021 and until 31 May 2022 the QPS received nine Workers' Compensation Medical Certificates which were redacted by Ms Wilson in the sections of diagnosis, date of injury, cause of injury, medical management, medical management plan and diagnostic plan;
  • On 16 February 2022 the QPS issued the IME direction. This direction was issued prior to Ms Wilson changing her treating physician and was based on medical certificates provided by Dr Ruberry, where significant components of the certificates had been redacted by Ms Wilson;
  • Since February 2022 Dr Chopra has been providing medical certificates that have been redacted by Ms Wilson. Dr Chopra also provided correspondence that did not elaborate on a medical management plan associated with Ms Wilson's symptoms; and
  • On 7 March 2022 the QPS Injury Management Unit wrote to Dr Chopra advising an IME had been scheduled, and that a suitable duties program could be developed in consultation with the doctor once the QPS becomes aware of short and long term medical restrictions. A list of questions was attached to the correspondence which to date the QPS submits has not been responded to.
  1. [44]
    The QPS submits the information received from Dr Chopra provides Ms Wilson can return to work on a temporary basis outside of her substantive role, and Ms Wilson is not fit to participate in an investigative process. The QPS contends the lack of information in relation to symptomology, triggers and medical restrictions is problematic in organising suitable return to work arrangements for Ms Wilson.
  1. [45]
    The QPS submits they are seeking medical information to better understand her condition and to assist Ms Wilson in her return to work. The QPS notes their duty of care to Ms Wilson and other employees to ensure they are not exposed to situations which cause a risk to their health and safety.
  1. [46]
    The QPS refers to the decision in Phillips v the State of Queensland (Department of Transport and Main Roads)[7] in which it was recognised that the purpose of the IME direction was to obtain more detailed information in relation to the appellant's medical condition and the impact it may have on their return to work, even though a diagnosis was provided.
  1. [47]
    The QPS notes the similarities between that decision and what is being sought by the QPS with Ms Wilson's IME direction, namely, to obtain relevant medical information supporting the reintroduction of Ms Wilson into the QPS workplace.
  1. [48]
    The QPS notes section 174 of the PS Act contains two limbs. Section 175 can be invoked for an employee to be medically examined by an appointed doctor if an employee:
  1. is absent from the workplace and the Chief Executive is reasonably satisfied the absence is caused by mental or physical illness or disability; or
  1. is not performing their duties satisfactorily and the Chief Executive has a reasonable suspicion that the performance is caused by a mental or physical illness or disability.
  1. [49]
    The QPS submits Ms Wilson's submission has misconceived the substantive conditions of each of these limbs and has considered that performance must relate to an absence when seeking an IME.
  1. [50]
    In considering the requirements pursuant to the directive, the QPS submits the IME direction was comprehensive and outlined the reasons for the direction, as well as a date for attendance and information to be provided to the doctor.
  1. [51]
    The QPS further submits Ms Wilsons submissions are misconceived because:
  • there is no requirement of the Chief Executive under ss 174 or 175 of the PS Act to incorporate unsatisfactory performance when relying solely upon the absence of an employee;
  • Dr Chopra's advice in correspondence with the QPS does not provide the necessary medical information that would assist the Injury Management Unit to safely place Ms Wilson. Dr Chopra has not responded to information requested in the letter of 7 March 2022 which would assist with organising a return to work plan for Ms Wilson;
  • Dr Chopra has diagnosed a condition but fails to provide information as to the symptoms, how it was cased, and what measures can be implemented to offset the symptoms and cause; and
  • The IME direction is not connected to the use of s 174 of the PS Act in seeking an IME for the purpose of gaining a better understanding of medical restrictions for Ms Wilson. Senior Management are concerned that placement without medical information could be a risk to the QPS.
  1. [52]
    For these reasons the QPS submits that Ms Wilson fails to establish an arguable case in her appeal against the IME direction.

Reply submissions of Ms Wilson

  1. [53]
    Ms Wilson's reply submissions contain a number of comments in relation to her Workers' Compensation claims. She raises the concerns she expressed in relation to providing the questions accompanying her IME letter to her treating doctor. She further notes the response raised by the QPS was that the questions were that of a standard nature.
  1. [54]
    Ms Wilson provides correspondence with her lawyer in her submission, contending that this outlines the extent of her cooperation with the Injury Management Unit and the active management from herself and her GP in her return to work. She submits that her interest in this matter is returning to work and earning an income from the QPS. Ms Wilson reiterates she has not provided informed consent for the Injury Management Unit of the QPS to communicate with her General Practitioner.
  1. [55]
    Ms Wilson submits she has not misconceived the conditions of the limbs of s174 of the PS Act and has not considered that performance must relate to absence when seeking an IME.
  1. [56]
    Ms Wilson contends if the IME direction would be based on her absence alone, there would not be mention of the QPS seeking information regarding her medical condition and any effects of this condition on the inherent requirements of her substantive position and any reasonable adjustments that may be required. She submits that the QPS has not provided examples of how their reasonable suspicion of mental illness or disability would affect performance of her duties inherent to her substantive position.

Consideration

The application for suppression

  1. [57]
    In AB v State of Queensland (Department of Youth Justice)[8] the commission as currently constituted made the following comments in relation to a suppression application:

[8]  I do not consider that the applicant falls into one of these exceptional cases. The reasons cited by him in seeking suppression of his name could equally apply to any applicant in any matter before this Commission. Matters dealt with by the Commission routinely traverse allegations of misconduct which are sometimes serious and invariably contested by the person accused.

[9]  The details of a grievance before the Commission and the identity of persons involved will always be generally in the public interest. What the Commission regards as an acceptable standard of conduct of employees, or the reasonable standards of conduct that may be required by an employer, or (more importantly) the appropriate sanctions imposed on employees for misconduct, are matters of acute public interest. Such matters should be on the public record to inform not just the parties to proceedings, but the public at large of these standards and expectations.

  1. [58]
    Ms Wilson's application for suppression cites concerns about her privacy and the privacy of her colleagues. These concerns are all too familiar for litigants. But the price one pays for electing to conduct legal proceedings (such as this appeal) is the surrender of the expectation or entitlement to keeping such disputes private.
  1. [59]
    There is a very real public interest for both employers and employees in the public sector to know and understand how the commission will deal with disputes around referrals to IMEs under s 175 of the PS Act.
  1. [60]
    Further, the suppression of Ms Wilson's name purely to protect her reputation and further employment prospects is precisely contrary to the principles that demand her name be published. The outcome of these proceedings ought to be open for the consideration by prospective employers and co-workers who may be aware or may need to be aware of them. It is a narrower public interest that dictates that, where Ms Wilson has made this appeal challenging the decision to refer her to an IME, those aware of it, or those who ought to be aware of it, should have a clear opportunity to see and understand how the issue was resolved by the commission.
  1. [61]
    Ms Wilson meets none of the exceptions to the principles of open justice and as such, I decline to suppress the decision or any part of it.

The appeal against the IME direction

  1. [62]
    Since filing of the appeal on 11 March 2022 the matter has been beset with delay. All of the delay has been at the request of, or because of, Ms Wilson. A cursory consideration of the chronology reveals that Ms Wilson has, for one reason or another, tried every avenue to ensure that she avoids being the subject of a direction to attend an IME.
  1. [63]
    In particular, Ms Wilson has introduced significant post-decision facts in an effort to both call for a delay in her appeal proceeding, or to produce delay. As a testament to the success of her efforts in this regard, Ms Wilson has managed to successfully avoid compliance with the direction to attend the IME for 6 months.
  1. [64]
    The significant problem for Ms Wilson is that the vast majority of the submissions she now makes to attack the decision are dependent on medical and other facts that post-date the decision to refer her to the IME. In putting this material before me in this appeal, Ms Wilson overlooks the simple and narrow jurisdiction the commission has pursuant to Chapter 11 of the IR Act.
  1. [65]
    Section 562B of the IR Act gives the commission jurisdiction to review a decision. The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[9] It is not a rehearing of the matter on its merits.[10] Further, the functions of such a review is to determine whether the decision was fair and reasonable.[11]
  1. [66]
    In all but the most extraordinary circumstances, only evidence available to the decision maker at the time of a decision will be relevant to a determination as to whether it was fair and reasonable. 
  1. [67]
    The only submission that Ms Wilson makes in her material that might properly be considered in this appeal is the assertion that the decision maker has not established the 'reasonable suspicion' necessary to enliven the power to direct her to an IME under s 174 of the PS Act.
  1. [68]
    In essence s 174 of the PS Act requires the decision maker to reasonably suspect that the employee's absence is caused by an illness. The term 'reasonably suspects' is plainly synonymous with the more common statutory phrases of 'reasonable grounds' or 'reasonably believes'. The notion of reasonable belief is well traversed in jurisprudence.
  1. [1]
    In Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2),[12]  Vice President O'Connor held:[13]

Reasonable belief is not defined in the WHS Act. In George v Rocket & Anor the High Court had to consider what "reasonable grounds" meant in the context of whether or not a Magistrate had reasonable grounds to issue a search warrant. In a unanimous judgment, the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

(underlining added)

  1. [69]
    Accordingly, the decision maker need only rely on objective circumstances that point more clearly to the subject matter to give rise to a belief (or suspicion in this case) to enliven the power.
  1. [70]
    The decision under review sets out extensive objective evidence that, from late August 2021 until at least 18 February 2022, Ms Wilson has been totally incapacitated to work due to an illness. The illness apparently contained in medical certificates covering the period 2 November 2021 to 18 February 2022 has been redacted by Ms Wilson.
  1. [71]
    Regardless of this I consider that:
  • the provision of medical certificates;
  • confirming total incapacity;
  • where the illness is included but is not disclosed,

would still be capable of objectively supporting a conclusion about the cause of absence.   

  1. [72]
    In her appeal notice Ms Wilson makes an assertion that the QPS has not accurately transcribed dates from her medical certificates, but the undisputed fact is that Ms Wilson has been absent consistently since 31 August 2021 and has consistently suffered from an illness for that period (and beyond). This alone is enough to allow formation of reasonable suspicion.
  1. [73]
    The undisputed objective facts at the time of the decision on 16 February 2022 were that Ms Wilson had been absent for a consistent period since 31 August 2021 i.e., a period of five and a half months. The undisputed cause of the absence was Ms Wilson's medical condition.[14]
  1. [74]
    On these facts I can see no other conclusion that could be reasonably reached (let alone suspected) about the reasons for Ms Wilson's absence. It follows that the objective facts support the requisite reasonable suspicion. 
  1. [75]
    In the circumstances, the grounds for appeal in this matter are so devoid of merit, I consider that a compelling reason not to hear the matter.
  1. [76]
    For completeness, while I do not consider events subsequent to 16 February 2022 to be relevant to the appeal, I note that the medical opinion of Dr Chopra dated 10 March 2022 post-dates the decision. Even though Dr Chopra purports to support a return to employment, the report that was submitted by Ms Wilson to the QPS (and with her appeal notice) is far from complete with respect to informing the QPS as to the precise nature of Ms Wilson's capacity and risk factors relevant to her.
  1. [77]
    Further, I note that Ms Wilson will not grant the QPS direct access to her treating doctors such that critical questions can be properly asked and answered with the degree of accuracy that comes from direct communication.
  1. [78]
    Finally, I note that the stated purpose of the IME to which Ms Wilson has been directed to attend is set out in the decision as follows:

The purpose of the medical examination is to obtain independent medical information regarding your physical illness/disability and the effect of your illness/disability has on you in performing the inherent requirements of your position and any reasonable adjustment that may be considered.

(Emphasis added)

  1. [79]
    In the circumstances of her extended absence and where there continues to be a dearth of medical information about how Ms Wilson might be safely returned to work, it is impossible to see the decision as anything other than fair and reasonable.
  1. [80]
    The referral to the IME is not necessarily a vehicle for the termination of Ms Wilson's employment but rather, a broad and independent examination of her condition to aid in considerations by the QPS that will inter alia keep Ms Wilson safe from further injury.
  1. [81]
    Ms Wilson's appeal is devoid of merit. By contrast, the objective facts overwhelmingly support the decision under review. In those circumstances I do not intend to hear the appeal.       

Order

  1. [82]
    In all of the circumstances, I make the following order:
  1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal.
  1. The appellant's application for suppression is refused.

Footnotes

[1] For reasons of privacy it is not necessary to disclose the nature of the condition in these reasons.

[2] T 1-7, ll 26-41.

[3] Matter GP/2022/9.

[4] Matter D/2022/80.

[5] [2017] QSC 338, 2 [2]-[3].

[6] (1991) 26 NSWLR 131, [476]-[477].

[7] [2022] QIRC 120.

[8] [2021] QIRC 133.

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

[10] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[12] [2019] QIRC 133.

[13] Citations omitted.

[14] T 1-6, ll 25-35.

Close

Editorial Notes

  • Published Case Name:

    Wilson v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Wilson v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 329

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    19 Aug 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
AB v State of Queensland (Department of Youth Justice) [2021] QIRC 133
2 citations
Jump To
Cite 1 - [2021] QIRC 133
Cite 2 - [2021] QIRC 133
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
John Fairfax Group Pty Ltd v Local Court (N.S.W.) (1991) 26 NSWLR 131
2 citations
Jump To
Cite 1 - (1991) 26 NSWLR 131
Cite 2 - (1991) 26 NSWLR 131
Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2019] QIRC 133
2 citations
Jump To
Cite 1 - [2019] QIRC 133
Cite 2 - [2019] QIRC 133
Phillips v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 120
2 citations
Jump To
Cite 1 - [2022] QIRC 120
Cite 2 - [2022] QIRC 120
R v O'Dempsey (No 3) [2017] QSC 338
2 citations
Jump To
Cite 1 - [2017] QSC 338
Cite 2 - [2017] QSC 338

Cases Citing

Case NameFull CitationFrequency
Maish v State of Queensland (Queensland Health) (No 3) [2024] QIRC 912 citations
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
TB v State of Queensland (Queensland Health) (No. 2) [2025] QIRC 1402 citations
Williams v State of Queensland (Metro North Hospital and Health Service) [2025] QIRC 2162 citations
1

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