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Baskin v State of Queensland (Department of Education)[2022] QIRC 349

Baskin v State of Queensland (Department of Education)[2022] QIRC 349

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Baskin v State of Queensland (Department of Education) [2022] QIRC 349

PARTIES:

Baskin, Andrew John

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/599

PROCEEDING:

Appeal against a decision to suspend without remuneration

HEARING DATE:

18 August 2022

DELIVERED ON:

18 August 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a teacher – Appellant charged with offences under the Drugs Misuse Act 1986 – Appellant suspended without remuneration pursuant to s 137(4) of the Public Service Act 2008 – Appellant appealed against the decision to suspend him without remuneration – whether decision to suspend Appellant without remuneration was fair and reasonable – decision to suspend Appellant without remuneration was fair and reasonable – decision appealed against confirmed

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – construction of s 194(1)(bb) of the Public Service Act 2008 – whether decision of the chief executive of the Department of Education extending the suspension of a public service employee without normal remuneration was a 'decision' within the meaning of s 194(1)(bb) of the Public Service Act 2008

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Directive 16/20: Suspension Directive, cl 5, cl 6 and cl 8

Drugs Misuse Act 1986, s 5, s 6 and s 10

Industrial Relations Act 2016, s 562B, s 562C and s 564

Public Service Act 2008, s 137, s 187 and s 194

CASES:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

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

Nona v Barnes [2012] QCA 346; [2012] 2 Qd R 528

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    Mr Andrew Baskin is employed by the State of Queensland as a Teacher (Special Needs Support) at the Pine Rivers State High School through the Department of Education ('the Department'). Mr Baskin is a permanent employee.
  1. [2]
    By letter dated 5 May 2022, Ms Anne Crowley, Assistant Director-General, Human Resources, informed Mr Baskin that, pursuant to s 137(4) of the Public Service Act 2008 ('the PS Act'), he would be suspended without remuneration from 5 May 2022 until 25 May 2022.
  1. [3]
    By further letter dated 25 May 2022, Mr Michael De'Ath, Director-General of the Department, informed Mr Baskin that his suspension without remuneration would continue for a period of six months until 25 November 2022.
  1. [4]
    As best as I understand it, by his appeal notice filed on 31 May 2022, Mr Baskin, pursuant to ch 7, pt 1 of the PS Act, appealed against Mr De'Ath's decision dated 25 May 2022 ('the decision').
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[1]
  1. [6]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[2]
  1. [7]
    Having regard to the submissions of the State, there are two questions for my determination:
  1. first, is Mr Baskin's appeal competent? and
  1. secondly, was the decision, against which Mr Baskin has appealed, fair and reasonable?

Background

  1. [8]
    On 13 May 2021, Mr Baskin was charged by the Queensland Police Service with the following offences under the Drugs Misuse Act 1986:
  1. trafficking dangerous drugs, contrary to s 5(1) of the Drugs Misuse Act 1986;
  1. supplying dangerous drugs, contrary to s 6(1) of the Drugs Misuse Act 1986; and
  1. possessing anything used in the commission of a crime under pt 2 of the Drugs Misuse Act 1986, contrary to s 10(1)(b) of the Drugs Misuse Act 1986.
  1. [9]
    On 14 May 2021, the Queensland College of Teachers suspended Mr Baskin's teacher registration.
  1. [10]
    On 25 May 2021, Ms Janita Valentine, Executive Director, Integrity and Employee Relations, wrote to Mr Baskin to advise that he had been suspended on normal remuneration pursuant to s 137(1)(b) of the PS Act. In doing so, Ms Valentine also requested that Mr Baskin show cause why he should continue to receive normal remuneration whilst suspended.
  1. [11]
    On 10 September 2021, Mr Duncan McKellar, Executive Director, Safety and Integrity, advised Mr Baskin that consideration of the proposed suspension without remuneration was continuing and he (Mr McKellar) consequently extended Mr Baskin's suspension with remuneration until 25 November 2021. Subsequently, Mr McKellar further decided to continue Mr Baskin's suspension with remuneration up to 25 May 2022.
  1. [12]
    By letter dated 30 March 2022, Ms Crowley, having considered the seriousness of the criminal charges and the duration of Mr Baskin's suspension with remuneration, requested Mr Baskin to again show cause why he should not be suspended without remuneration. On 13 April 2022, Mr Baskin's legal representative provided a response to the proposed suspension without remuneration.
  1. [13]
    By letter dated 5 May 2022, Ms Crowley then advised Mr Baskin, having considered the response provided on his behalf, that he would be suspended from duty without remuneration from 5 May 2022 until 25 May 2022.
  1. [14]
    In correspondence dated 11 and 12 May 2022, Mr Baskin requested Ms Crowley reconsider suspending him without normal remuneration.
  1. [15]
    By letter dated 20 May 2022, Ms Crowley informed Mr Baskin that she was confirming the decision, contained in her letter dated 5 May 2022, that Mr Baskin would be suspended without remuneration from 5 May 2022 until 25 May 2022.
  1. [16]
    By letter dated 25 May 2022, Mr De'Ath informed Mr Baskin of the decision to suspend him without remuneration from 25 May 2022 until 25 November 2022.
  1. [17]
    Despite the fact I issued a Directions Order that Mr Baskin file and serve written submissions in respect of his appeal against the decision, he did not file and serve any submissions by the designated date, which was 29 June 2022. Mr Baskin merely filed Ms Crowley's correspondence dated 5 May 2022 and 20 May 2022. Mr Baskin did not file any written submissions until 16 August 2022.
  1. [18]
    The Department filed and served written submissions in accordance with the Directions Order.
  1. [19]
    In its submissions, the Department:
  1. contends that:
  1. the 21 day limitation period in which Mr Baskin had to start his appeal, provided for by virtue of the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016, actually commenced running from 6 May 2022, being the day Mr Baskin's legal representatives received Ms Crowley's letter dated 5 May 2022 that Mr Baskin would be suspended without remuneration from 5 May 2022 until 25 May 2022; and
  1. as a consequence, Mr Baskin's appeal was started out of time in circumstances where Mr Baskin has not applied for an extension of time and has not provided any explanation for his delay; or, in the alternative
  1. contends that the decision made by Mr De'Ath was '… a decision of an administrative nature that is not appealable under s 194(1)(bb) of the PS Act'; and, in any event
  1. submits that the decision was otherwise fair and reasonable.

Is Mr Baskin's appeal competent?

  1. [20]
    I have had regard to the State's submissions that Mr Baskin's appeal is incompetent either because it was started out of time or that Mr De'Ath's decision, contained in his correspondence dated 25 May 2022, is not a decision within the meaning of s 194(1)(bb) of the PS Act.
  1. [21]
    I cannot accept those submissions.
  1. [22]
    The second submission is that Mr De'Ath's decision, contained in his correspondence dated 25 May 2022, was not a decision made pursuant to s 137(4) of the PS Act, but was a decision '… of an administrative nature' which is not appealable pursuant to s 194(1)(bb) of the PS Act.
  1. [23]
    In oral submissions, the Department submitted that by characterising Mr De'Ath's decision as a decision of an administrative nature, it meant that it was one made under cl 8.4 of Directive: 16/20 - Suspension Directive ('the Directive').
  1. [24]
    Section 194(1)(bb) of the PS Act provides that a decision, against which an appeal can be made pursuant to ch 7, pt 1 of the PS Act, is '… a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision).'
  1. [25]
    Whether or not the outcome, conveyed by Mr De'Ath's letter dated 25 May 2022, is a 'decision' within the meaning of s 194(1)(bb) of the PS Act, must be answered with reference to the statutory context in which the noun 'decision' appears in that section and the particular facts of each case.[3]
  1. [26]
    The ordinary meaning of the noun 'decision', in the context it appears in s 194(1)(bb) of the PS Act, is '… that which is decided; a resolution.'[4]
  1. [27]
    Such an ordinary meaning accords with the way the word 'decision' has been generally construed in judicial review legislation, namely, a 'decision' is one which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.[5]
  1. [28]
    Further, the purpose or object of s 194 of the PS Act, as it appears in ch 7, pt 1 pf the PS Act, is to confer on the relevant person referred to in s 194(1)(bb) of the PS Act - namely, a public service employee the subject of a suspension without pay decision - the right to appeal against such a 'decision' on the basis that the decision was not fair and reasonable.[6]
  1. [29]
    Mr De'Ath, in his letter dated 25 May 2022, relevantly stated:

I refer to the letter of Ms Anne Crowley, Assistant Director-General, Human Resources, dated 5 May 2022 in which you were advised of Ms Crowley's decision to suspend you from duty without normal remuneration from your role as a Teacher, Pine Rivers State High School, pursuant to section 137(1)(b) of the Public Service Act 2008 (the PS Act) until 25 May 2022.

As the matter relating to your suspension was assessed as a 'work performance matter' for the purpose of the Public Service Commission's Suspension Directive (16/20) (the Directive), the Department of Education is required to undertake a review of your suspension at 12 months. I note this review period will be reached on 25 May 2022.

As the chief executive of the department, I confirm I have the authority to undertake a 12‑month periodic review of your suspension, and consider whether your suspension should be cancelled or continued, having regard to the considerations for suspension in section 137 of the PS Act and the Directive.

I confirm that I have not had any previous involvement in any considerations regarding your suspension, and have undertaken this review as an independent decision maker.

Outcome of Review

I have carefully considered all the material before me, and am satisfied that your suspension should be continued, having regard to the considerations for suspension in section 137 of the PS Act and the Directive.

Section 137(l)(b) of the PS Act provides that an employee may be suspended from duty if the chief executive reasonably believes that the employee is liable to discipline under a disciplinary law.

I note that you have been charged with six criminal offences which remain ongoing before the District and Supreme Courts of Queensland, being:

  • Supplying Dangerous Drugs pursuant to section 6(1) of the Drugs Misuse Act 1986 (DMA) on 6 March 2021;
  • Supplying Dangerous Drugs pursuant to section 6(1) of the DMA on 27 March 2021;
  • Supplying Dangerous Drugs pursuant to section 6(1) of the DMA on 5 April 2021;
  • Supplying Dangerous Drugs pursuant to section 6(1) of the DMA on 17 April 2021;
  • Possessing anything used in the commission of a crime pursuant to section 10(1)(b) of the DMA on 17 April 2021; and
  • Trafficking in Dangerous Drugs pursuant to section 6 of the DMA between 5 March 2021 and 18 April 2021.

I also note that your teaching registration with the Queensland College of Teachers has been suspended as a result of the criminal charges against you, and that your registration remains suspended at this time.

While no finding has been made, nor will be made, in relation to the allegations associated with the charges against you until such time as you have been afforded an opportunity to respond, I reasonably believe that you are liable to discipline under a disciplinary law.

Section 137(3) of the PS Act requires that before suspending you from duty, consideration must be given to all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement available for you to perform. Mr Steve Cook, Director, Human Resources Business Partnering, North Coast Region, and Mr Jeremy Hore, Principal Human Resources Consultant, North Coast Region, have been consulted in considering alternative arrangements in accordance with section 137 of the PS Act, and Clause 5.2 of the Directive.

Based on these discussions, I consider that there are no suitable alternative arrangements at your current, or another location, or of an administrative nature, or where the risk to the department is able to be suitably managed and within a reasonable driving distance of your place of residence, available at this time. I also note that you do not have any accrued recreation and/or long service leave to access at this time.

For these reasons, I have determined that in the circumstances, your suspension from duty, without normal remuneration will continue under section 137(1)(b) of the PS Act for the reasons set out in previous correspondence, and will continue for a period of six months until 25 November 2022. The duration of your suspension may be reviewed as new information becomes available, the court process progresses or circumstances change, and you will be advised at the relevant time of any change.[7]

  1. [30]
    Having regard to the content of Mr De'Ath's correspondence dated 25 May 2022, it is obvious he was making a decision to suspend Mr Baskin without remuneration for a period of six months until 25 November 2022.
  1. [31]
    It is equally obvious that Mr De'Ath's decision involved the exercise of power by him pursuant to s 137(4) of the PS Act and that, in exercising that power, Mr De'Ath took into account the matters referred to in s 137(3) of the PS Act and the matters referred to in cl 5.2 of the Directive.[8]
  1. [32]
    In my opinion, the outcome conveyed by Mr De'Ath's letter dated 25 May 2022 is clearly a 'decision' because it is one that was operative and determinative or, in other words, resolved the issue of fact falling for consideration, namely, whether or not, pursuant to s 137(4) of the PS Act, Mr De'Ath would continue Mr Baskin's suspension without remuneration.
  1. [33]
    Further, I do not accept the Department's submission that Mr De'Ath's decision is not a decision within the meaning of s 194(1)(bb) of the PS Act because it involved a periodic review of Mr Baskin's suspension without remuneration pursuant to cl 8.4 of the Directive. By cl 8.5 of the Directive, in making a decision arising out of such a review, the review '… must consider whether the suspension should be cancelled or continued having regard to the considerations for suspension in section 137 of the PS Act and this directive.'
  1. [34]
    Similarly, by cl 8.7 of the Directive, where, following the review, the suspension is continued, the chief executive '… must provide notice of the suspension to the employee as required by section 137 of the PS Act and this directive.'
  1. [35]
    It seems clear that the power to continue the suspension of an employee, upon a review of the suspension by the chief executive of a department conducted by virtue of cl 8.4 of the Directive, involves the exercise of power by the chief executive under s 137 of the PS Act.
  1. [36]
    In addition, it would be inconsistent with a construction that best achieves the purpose of s 194(1)(bb) of the PS Act,[9] if the noun 'decision' was given the narrow meaning as contended by the Department. The Department contends that it is only the initial decision to suspend a public service employee without remuneration that is amenable to appeal and not a further decision to continue the suspension. The purpose of s 194(1)(bb) would not be best achieved by such a narrow construction. In my view, the intention of the legislature is that any decision made under s 137(4) of the PS Act to suspend a public service employee without remuneration is amenable to appeal.
  1. [37]
    For the same reasons, Mr De'Ath's correspondence dated 25 May 2022 contained a decision, namely, a decision to suspend Mr Baskin without remuneration, where the 21 day time limit for Mr Baskin to appeal against the decision ran from the date he was given the decision which, as best as I can make out, was on or about 25 May 2022. Mr Baskin's appeal was started on 31 May 2022.
  1. [38]
    For these reasons, Mr Baskin's appeal against Mr De'Ath's decision is competent.
  1. [39]
    Even if I am wrong, and Mr De'Ath's decision was one made under the Directive, then Mr Baskin could still arguably appeal that decision because such a decision would be one '… to take action under a directive' within the meaning of s 194(1)(a) of the PS Act.

Was Mr De'Ath's decision fair and reasonable?

Mr Baskin's submissions

  1. [40]
    In Mr Baskin's appeal notice, the stated reasons for his appeal relevantly included:
  1. he is a full-time employee;
  2. the '… presumption of innocence';
  3. the most serious charge made against him, namely, trafficking, was dropped;
  4. '… human rights';
  5. that he was paid for the first 10 months and that there was '… no legal position to cease after' initially being granted;
  6. his livelihood is threatened;
  7. '… the matter' is to be finalised within six months; and
  8. an equity argument, namely, '… individual v Department'.
  1. [41]
    From the submissions Mr Baskin made today, he confirmed that the criminal charges against him concerning s 6(1) and s 10(1)(b) of the Drugs Misuse Act 1986 were the subject of pleas of guilty by him before Judge Smith of the District Court on 21 July of this year. Mr Baskin further confirmed that while he was convicted of those charges, no conviction was recorded and he was sentenced to probation for 18 months.
  1. [42]
    By way of summary, Mr Baskin submitted that the decision was not fair and reasonable because:
  1. it was unfair to suspend him with remuneration for 12 months and then to stop that three months out '… from sentencing' and that he expected his wage to be maintained '… until sentencing' and that any abrupt change would adversely affect '… an individual suffering Mental Health and/or Depression Ailments';
  1. the Department had adequate time to initially judge on the '… post‑committal' argument which informs the '… rights to presumptive innocence' to be denied in favour of a reasonable belief that a disciplinary act has occurred, and while that is a sound argument, it does not negate mitigating circumstances namely, his suspension with remuneration from November 2021 until May 2022 which was after his committal hearing;
  1. the fact that no conviction was recorded by Judge Smith is not inconsistent with his ability to teach in Queensland;
  1. no conviction was recorded against him because Judge Smith:
  1. determined that he had proactively and creatively sought a General Practitioner's assistance with mental health related issues before any police charges were laid;
  1. agreed that his matter involved tragic circumstances outside his control; and
  1. agreed '… with the Medical Professionals, that I was arguably self‑medicating with the same substance that I was eventually prescribed by a psychiatrist - dexamphetamine.'
  1. he should be entitled to back pay and the immediate restoration of his remuneration while he waits for the Queensland College of Teachers and the Queensland Civil and Administrative Tribunal to make the determination about the continuation of his registration as a teacher;
  1. the Department should be more considerate in respect of his mental health issues in that:
  1. its poor handling of his suspension caused him '… undue mental stress and harm' particularly given that he had mortgage and car loan payments to maintain amongst other expenses and that he had to represent himself before the Court dealing with the criminal charges made against him; and
  1. the Department's representatives knew that he was recovering from severe mental health depression that included, in the first term in 2021, a graduated return to work;
  1. it is in the public interest to keep his wage entitlements due to the scarcity of Special Education teachers across Queensland; and
  1. it is in his financial interests that his remuneration be restored until the hearing before the Queensland Civil and Administrative Tribunal later this year.

The Department's submissions

  1. [43]
    Mr De'Ath, in the decision, stated that Mr Baskin's suspension from duty without normal remuneration would continue under s 137(1)(b) of the PS Act for the reasons set out in previous correspondence, namely, Ms Crowley's correspondence dated 5 May 2022.
  1. [44]
    By reference to those reasons, the Department, in its written submissions, submitted that the decision to suspend Mr Baskin without normal remuneration was fair and reasonable. It submitted:
  1. In the Suspension Without Remuneration Letter, Ms Crowley provided the Appellant with the reasons why she had decided to suspend the Appellant without normal remuneration. These reasons can be categorised as follows:
    1. Criminal charges
    2. Suspension of teacher registration
    3. Nature of the disciplinary matter
    4. Factors preventing the timely conclusion of the discipline process
    5. Public interest

Criminal charges

  1. Ms Crowley noted that the criminal charges had passed the committal stage where the court has confirmed that the Appellant has a prima facie case to answer. Accordingly, Ms Crowley remained of the reasonable belief that the Appellant was liable to discipline under a disciplinary law. In the Appeal Notice, the Appellant advises that the "most serious charge has been dropped (trafficking)". Here the Appellant is suggesting that there has been a material change in circumstances relevant to his suspension that has occurred since the Suspension Without Remuneration Decision was made. It is the Respondent's view that such information has no baring [sic] upon whether the Suspension Without Remuneration Decision was fair and reasonable since it is information that was not before the decision‑maker at the time. Instead, it is a matter for the Appellant to have brought to the Respondent's attention for consideration of whether continuation of the suspension was appropriate in the circumstances.

Suspension of teacher registration

  1. Ms Crowley also noted that the Appellant's teacher registration remained suspended by the Queensland College of Teachers. The Respondent also observes that the Appellant's teacher registration remains suspended as at the date of these submissions.

Nature of the disciplinary matter

  1. Sections 187(1)(b) and 187(4)(b) of the PS Act provide that inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service is a ground for discipline. Criminal charges involving dangerous drugs reasonably enliven a belief that the Appellant may be liable to discipline under a disciplinary law. Likewise, the seriousness of such charges supports a conclusion that it would be inappropriate for the Appellant to perform alternative duties in a non-teaching role for the duration of the suspension.

Factors preventing the timely conclusion of the discipline process

  1. The Respondent has appropriately deferred any departmental disciplinary process until the conclusion of the court proceedings for the criminal charges. Accordingly, the timing of the commencement and consequent conclusion of any disciplinary process is a delay beyond the control of the Respondent. In the Appeal Notice, the Appellant states that the "Matter to be [sic] finalised in 6 months". Even if it were to be accepted that this is an accurate prediction of when the court proceedings would be finalised it would not, on its own, warrant the reversal or discontinuation of the Appellant's suspension without remuneration.

Public interest of employee on suspension with remuneration

  1. Under the PS Act the Respondent has an obligation to ensure the efficient, responsible and accountable use of public resources. In the circumstances, where the Appellant is facing criminal charges in relation to dangerous drug crimes Ms Crowley determined that it would not be in the public interest to continue to maintain the Appellant's suspension with normal remuneration.[10]

Mr De'Ath's decision dated 25 May 2022 was fair and reasonable

  1. [45]
    Section 137 of the PS Act prescribes the circumstances by which a public service employee may be suspended from duty.
  1. [46]
    Relevantly, s 137(1)(b) of the PS Act provides that the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.
  1. [47]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless:
  1. the person is suspended under s 137(1)(b) of the PS Act; and
  1. 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. [48]
    Section 137(9) of the PS Act provides that in suspending a public service employee under s 137, the chief executive must comply with the principles of natural justice, the PS Act and '… the directive made under section 137A.'
  1. [49]
    The directive made under s 137A of the PS Act is the Directive.
  1. [50]
    In my view, in making his decision, Mr De'Ath correctly, fairly and reasonably took into account the matters referred to in s 137(4) of the PS Act and in the Directive.
  1. [51]
    The combined effect of s 187(1)(b) and s 187(4)(b) of the PS Act is that a public service employee will be guilty of misconduct if he or she engages in inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
  1. [52]
    Mr De'Ath, for his own reasons as stated in his decision dated 25 May 2022, and by reference back to the reasons given by Ms Crowley in her letter dated 5 May 2022, clearly took into account the nature of the discipline that he believed Mr Baskin may be liable in coming to his decision.
  1. [53]
    In Mr De'Ath's letter dated 25 May 2022, he stated that Mr Baskin was charged with committing offences against s 6(1) of the Drugs Misuse Act 1986 on four occasions, namely, 6 March 2021, 27 March 2021, 5 April 2021 and 17 April 2021 and that he was charged with committing one offence against s 10(1)(b) of the Drugs Misuse Act 1986 on 17 April 2021.
  1. [54]
    Section 6(1) of the Drugs Misuse Act 1986, which is contained in pt 2 of that Act, provides:

6 Supplying dangerous drugs

  1. (1)
    A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime.
  1. [55]
    Section 10(1) of the Drugs Misuse Act 1986 provides:

10 Possessing things

  1. (1)
    A person who has in his or her possession anything-
  1. (a)
    for use in connection with the commission of a crime defined in this part; or
  1. (b)
    that the person has used in connection with such a purpose; is guilty of a crime.
  1. [56]
    Various terms of imprisonment are the maximum penalties for these offences.
  1. [57]
    It was clearly open for Mr De'Ath to come to the belief, in respect of Mr Baskin, given that Mr Baskin is employed by the State as a teacher, that Mr Baskin may be liable for serious disciplinary action because he was guilty of misconduct as defined above, if he was found guilty of the criminal offences of supplying dangerous drugs and being in possession of anything used in the commission of a such crime.
  1. [58]
    Furthermore, it is clear from his decision that Mr De'Ath did consult with the relevant officers of the Department about Mr Baskin performing alternative duties, being temporarily transferred or working in other alternative arrangements, so as to avoid suspension. That is a matter required to be taken into account having regard to s 137(3) of the PS Act and cl 5.2 of the Directive. The finding made by Mr De'Ath about that matter also seems fair and reasonable given Mr Baskin's registration as a teacher by the Queensland College of Teachers being suspended.
  1. [59]
    In addition, cl 6.3 of the Directive provides:

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

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [60]
    Once again, Mr De'Ath, by reference back to the reasons given by Ms Crowley in her letter dated 5 May 2022, clearly took into account the public interest in Mr Baskin remaining on suspension with remuneration.
  1. [61]
    In her reasons, Ms Crowley stated that Mr Baskin had already been suspended from duty with remuneration for over 10 months and there was no indication as to when his criminal proceedings were likely to end, enabling the Department to commence disciplinary proceedings. That reasoning clearly takes into account the public interest in whether or not Mr Baskin should have remained on suspension with remuneration and also the issue of factors not within the control of the Department preventing the timely conclusion of the discipline process, namely, the finalisation of the criminal charges made against Mr Baskin. Mr De'Ath adopted those same reasons.
  1. [62]
    For these reasons, my view is that the decision made by Mr De'Ath was fair and reasonable.
  1. [63]
    None of the matters advanced by Mr Baskin in his appeal notice persuade me to the contrary.
  1. [64]
    Even though Mr Baskin contends that the '… most serious charge' of trafficking dangerous drugs was dropped, at the time of Mr De'Ath's decision, Mr Baskin was still charged with supplying dangerous drugs and possessing anything used in the commission of a crime under pt 2 of the Drugs Misuse Act 1986.
  1. [65]
    The presumption of innocence, whilst acknowledged and observed by Mr De'Ath in his decision, was not the only consideration to which Mr De'Ath was required to have regard in respect of the application of s 137(4) of the PS Act. A consideration to which Mr De'Ath was required to have regard was the nature of the discipline to which Mr De'Ath believed Mr Baskin was liable.
  1. [66]
    None of the submissions Mr Baskin made today persuade me that Mr De'Ath's decision was not fair and reasonable.
  1. [67]
    The fact that Mr Baskin had been suspended with remuneration for a lengthy period of time did not mean that Mr De'Ath's decision was other than fair and reasonable. This is because, for the reasons given above, in making his decision, Mr De'Ath took into account the matters, contained in s 137(4) of the PS Act and in the Directive, to which he was required to have regard.
  1. [68]
    The fact that Judge Smith did not record a conviction in respect of the charges to which Mr Baskin pleaded guilty is not relevant as that occurred after the date of Mr De'Ath's decision. That fact may well be relevant in respect of any subsequent disciplinary process taken against Mr Baskin, but it is not relevant in respect of my determination as to whether or not the decision to continue to suspend Mr Baskin without remuneration was fair and reasonable.
  1. [69]
    No doubt the decision to suspend Mr Baskin without remuneration had a detrimental impact upon him financially. However, Mr De'Ath took into account the public interest of Mr Baskin remaining on suspension with remuneration, and determined it was not in the public interest that Mr Baskin remain suspended with remuneration. In that regard, Mr De'Ath adopted the public interest reasons considered by Ms Crowley in her decision dated 5 May 2022, including the nature and seriousness of the allegations made against Mr Baskin, the passage of time that had elapsed since he was first suspended, and that it would not be in the public interest, in those circumstances, for him to continue being remunerated.
  1. [70]
    The timing of any decision which may be made by the Queensland College of Teachers and, or in the alternative, the Queensland Civil and Administrative Tribunal about Mr Baskin's registration as a teacher is not, in my opinion, relevant to whether Mr De'Ath's decision was fair and reasonable. As noted by Mr De'Ath in his decision, at the time of his decision, Mr Baskin's registration as a teacher was suspended as a result of the criminal charges against him.
  1. [71]
    Finally, while the decision to suspend Mr Baskin without remuneration may have, as he submits, caused him '… undue mental stress and harm' such a fact does not persuade me that Mr De'Ath's decision was other than fair and reasonable. It is obvious that a decision to suspend any employee without remuneration may well cause the employee mental stress. However, such a fact is far outweighed by the relevant considerations, under the PS Act and under the Directive, that had to be, and were, taken into account by Mr De'Ath in his decision.
  1. [72]
    For the reasons I have given, the decision was fair and reasonable.
  1. [73]
    Mr Baskin informed me that Judge Smith, in sentencing him, took into account the positive steps he had taken in relation to his health which pre-dated the criminal charges made against him. I have no reason to doubt that was the case. Mr Baskin should be commended on taking those steps. However, those matters do not persuade me that Mr De'Ath's decision was other than fair and reasonable.
  1. [74]
    Given that the criminal proceedings against Mr Baskin have now been finalised, it seems clear that the Department can now commence the disciplinary process against him as foreshadowed in Ms Crowley's correspondence. Mr Piper, on behalf of the Department, informed me today that such a process will commence shortly. Given the passage of time concerning this matter, it is only fair to Mr Baskin that such a process should commence expeditiously.

Conclusion

  1. [75]
    For the reasons I have given, Mr Baskin's appeal is competent, but the decision against which he has appealed was fair and reasonable.
  1. [76]
    The decision suspending Mr Baskin without remuneration from 25 May 2022 until 25 November 2022 is confirmed.

Order

  1. [77]
    I make the following order:

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

Footnotes

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

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

[3] See Nona v Barnes [2012] QCA 346; [2012] 2 Qd R 528 ('Barnes') , [11] (Fraser JA, Philippides J at [30] and Douglas J at [34] agreeing).

[4]Macquarie Dictionary (7th ed, 2017), 'decision', (def 4).

[5]Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 337 (Mason CJ) and Barnes, [13] (Fraser JA).

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

[7] Emphasis added.

[8] Clause 5.2 of Directive: 16/20 - Suspension Directive provides:

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.
  1. (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.
  1. (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)
  1. (ii)
    directing the employee to work under close supervision or with another employee
  1. (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).

[9] See Acts Interpretation Act 1954 s 14A(1).

[10] Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Baskin v State of Queensland (Department of Education)

  • Shortened Case Name:

    Baskin v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 349

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    18 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
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
2 citations
Jump To
Cite 1 - (1990) HCA 33
Cite 2 - (1990) HCA 33
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Nona v Barnes[2013] 2 Qd R 528; [2012] QCA 346
2 citations
Jump To
Cite 1 - [2012] QCA 346
Cite 2 - [2012] QCA 346
Nona v Barnes [2012] 2 Qd R 528
2 citations
Jump To
Cite 1 - [2012] 2 Qd R 528
Cite 2 - [2012] 2 Qd R 528

Cases Citing

Case NameFull CitationFrequency
AB v State of Queensland (Department of Education) [2024] QIRC 492 citations
Churchward v State of Queensland (Department of Education) [2025] QIRC 63 citations
Philp v State of Queensland (Department of Education) [2025] QIRC 553 citations
Philp v State of Queensland (Department of Education) [2023] QIRC 2191 citation
Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3342 citations
Thomson v State of Queensland (Department of Education) [2022] QIRC 4023 citations
1

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