Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Bloxham v State of Queensland (Queensland Police Service) - [2022] QIRC 37

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Bloxham v State of Queensland (Queensland Police Service)[2022] QIRC 37

Bloxham v State of Queensland (Queensland Police Service)[2022] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 37

PARTIES:

Bloxham, Natalia

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/433

PROCEEDING:

Public Service Appeal - Suspension without pay

DELIVERED ON:

16 February 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – suspension without remuneration decision – whether decision to suspend appellant without remuneration was fair and reasonable – where appellant argued difference in treatment – consideration of human rights – whether respondent considered alternative arrangements – whether appellant has a reasonable excuse for non-compliance – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Human Rights Act 2019 (Qld) s 13, s 17, s 48

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

Police Service Administration Act 1990 (Qld) s 4.8

Public Service Act 2008 (Qld) s 137

Directive 16/20 Suspension cl 6

International Covenant on Civil and Political Rights art 4, art 18

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Miss Bloxham is employed by the State of Queensland, Queensland Police Service (the Respondent) as an AO3 Roster Clerk in the Rapid Action and Patrols section of the Gold Coast District.[1]
  1. [2]
    On 7 September 2021, the Commissioner of the Queensland Police Service issued the Instrument of Commissioner's Direction No. 12 (Direction No. 12). Direction No. 12 mandates, inter alia, that police officers and other staff members must receive the COVID-19 vaccine.[2]
  1. [3]
    On 3 October 2021, Miss Bloxham applied for an exemption that was subsequently denied by the Respondent on 15 October 2021.[3]
  1. [4]
    On 21 October 2021, Miss Bloxham received a 'Notice of Suspension with Remuneration and a Show Cause Notice for Suspension without Remuneration' dated 19 October 2021 (the Show Cause Notice).
  1. [5]
    The Show Cause Notice pertained to the following allegation in relation to Direction No. 12:

It is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7(a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Senior Sergeant Leanne Major on 14 October 2021 as required by clause 7(c) of the Direction.

  1. [6]
    The Show Cause Notice advised Miss Bloxham she is suspended from duty with remuneration pursuant to s 137(1)(a) of the Public Service Act 2008 (Qld) (the PS Act) and that consideration would be given to whether or not she should be suspended from duty without remuneration pursuant to s 137(1)(b) and (4) of the PS Act. An Executive Briefing Note dated 18 October 2021 was annexed to the Show Cause Notice.
  1. [7]
    Miss Bloxham was given seven days to respond in writing showing cause as to why she should not be suspended without remuneration. Miss Bloxham provided a response on 27 October 2021 (the Response).[4]
  1. [8]
    On 30 November 2021, Miss Bloxham was served with a 'Notice of Suspension Without Remuneration' for failing to comply with Direction No. 12 (the Decision). The Decision, authored by Mr Peter Brewer[5] (the decision-maker) is dated 26 November 2021 and took effect from midnight on 3 December 2021.[6]
  1. [9]
    On 17 December 2021, Miss Bloxham appealed the Decision, being "a decision about suspension without pay".[7] The Respondent does not contest Miss Bloxham's eligibility to lodge an appeal under the PS Act.[8]
  1. [10]
    The issue for my determination is whether the Decision to suspend Miss Bloxham without remuneration was fair and reasonable. For the reasons below, I find the Decision was fair and reasonable.

The PS Act

  1. [11]
    Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.
  1. [12]
    Pursuant to s 137(1)(b) of the PS Act, the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes "the employee is liable to discipline under a disciplinary law."
  1. [13]
    An employee is entitled to normal remuneration during a suspension unless the employee meets the criteria under s 137(4) of the PS Act, namely:
  1. (a)
    the person is suspended under s 137(1)(b) of the PS Act; and
  1. (b)
    the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [14]
    Pursuant to s 137(9) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice, the PS Act and Directive 16/20 Suspension (Directive 16/20).

What decisions can the Commission make?

  1. [15]
    Section 562C of the Industrial Relations Act 2016 (Qld) (the IR Act) prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against; or
  1. Set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  1. Set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [16]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [17]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [18]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [19]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[9]

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

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

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

The pluarity in Li said:

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

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

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

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

Submissions

  1. [20]
    In accordance with the Directions Order issued on 21 December 2021, the parties filed written submissions.
  1. [21]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [22]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

Appeal Grounds

  1. [23]
    Miss Bloxham contends the Decision is not fair and reasonable because:
  • the Respondent has treated Miss Bloxham differently to others employees who face serious allegations;
  • the Respondent's conclusions with respect to human rights lack clarity;
  • Miss Bloxham's role can be undertaken from home; and
  • Miss Bloxham has a reasonable excuse for non-compliance with Direction No. 12.

The Decision was fair and reasonable

Difference in treatment

  1. [24]
    Miss Bloxham contends she has been unfairly treated in comparison to employees who have allegedly committed a crime and continue to be remunerated until an outcome is provided.[10] Miss Bloxham argues this lack of consistency is not fair or reasonable.[11]
  1. [25]
    In her Response, Miss Bloxham outlined several examples of employees who were suspended on full pay for a substantial period of time, despite having allegedly committed a criminal offence.[12] Miss Bloxham argues she is unaware of anyone being suspended without remuneration[13] prior to herself. The decision-maker concluded, "Ultimately, I consider the importance of maintaining financial accountability and public trust in the Service outweighs the impact on your human rights…"[14] However, Miss Bloxham questions how that statement can be consistent with several employees remaining on full remuneration.[15]
  1. [26]
    Miss Bloxham submits the "Respondent's Strategic Plan for 2020-2024 and the recently updated 2021-2025 Plan" refers to values of "fairness, dignity and respect" as well as references to a "flexible, inclusive and diverse" workforce and the objective to "enhance engagement and performance."[16]
  1. [27]
    The Respondent submits that the suspension decisions pertaining to other employees "were based on different facts and circumstances and were not related to the vaccination direction matter that is applicable to the Appellant."[17]
  1. [28]
    I agree with the Respondent that failure to comply with Direction No. 12 is a separate matter to those examples provided by Miss Bloxham. Strikingly, Miss Bloxham is referring to employees who have allegedly committed a crime. In comparison, Miss Bloxham has failed to comply with Direction No. 12 - it is not merely alleged this is the case but rather it has been established.
  1. [29]
    Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable. The decision-maker considered the nature of the discipline to which he believed Miss Bloxham was liable and I am satisfied that was thoroughly outlined at pages 2 - 4 of the Decision. Upon review of those reasons, I accept it was open to the decision-maker to conclude that it is not appropriate for Miss Bloxham to remain on normal remuneration in light of the nature of the discipline.
  1. [30]
    Each disciplinary process will necessarily turn on its own facts and the nature of the discipline to which the decision-maker believes Miss Bloxham is liable is different to the nature of the discipline for other employees in separate circumstances. On that basis, I reject Miss Bloxham's argument that she has been unfairly treated in comparison to other employees.
  1. [31]
    Miss Bloxham also refers to the decision-maker's conclusion that "no adverse finding or determination has been made against you in relation to the allegation at this time."[18] Miss Bloxham contends she has never been involved with a disciplinary process prior to this matter nor has she been made aware of any complaints lodged against her.[19]
  1. [32]
    The Respondent opines that Miss Bloxham fails to appreciate the nature and seriousness of the allegations against her despite them being clearly outlined in the Decision.[20]
  1. [33]
    Direction No. 12 clearly applies to staff members performing essential support duties to enable the effective delivery of frontline services and I accept that a failure to obey Direction No. 12 is serious because it is in "direct conflict with the functions, responsibilities, and organisational values of the Service."[21] Respectfully, the fact that Miss Bloxham has not previously been involved in a disciplinary proceeding is beside the point. This matter turns upon a failure to comply with a Direction and a clean record does not somehow diminish the seriousness of that failure.
  1. [34]
    For the reasons outlined above, I reject Miss Bloxham's argument that the Decision was not fair or reasonable because of an alleged difference in treatment among employees.

Human rights

  1. [35]
    The decision-maker concluded, "I consider the decision to suspend you without remuneration is compatible with human rights under the Human Rights Act 2019."[22] Ms Bloxham appears to take several issues with this remark.
  1. [36]
    Firstly, Ms Bloxham contends she sought clarification regarding the specific section/s under the Human Rights Act 2019 (Qld) (HR Act) but had not received a response as at the time of filing her Appeal Notice.[23] However, annexed to the Respondent's Submissions was a response from Mr Steve Wyatt, Acting Inspector within the Discipline Support Unit which provides:

The section of the Notice you have asked about does not relate to one particular section of the Human Rights Act 2019. However, if you look at Part 2, Division 1 of the Act, it may assist with your enquiry.[24]

  1. [37]
    In Miss Bloxham's Response, she referred to s 17(c) of the HR Act which states a person must not be "subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent."[25] Miss Bloxham's contention is that she has attended several forums, asked questions that remain unanswered and in order for her to be able to provide valid and informed consent, she requires information in relation to all effects of the vaccination.[26]
  1. [38]
    Miss Bloxham also refers to art 18 of the International Covenant on Civil and Political Rights (ICCPR) and notes that "throughout the Show Cause that the decision regarding health & safety risks outweigh my basic human rights outlined in my exemption application".[27] Article 18 of the ICCPR provides:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

  1. [39]
    Miss Bloxham argues that to place limitations in accordance with art 18.3, action needs to occur in accordance with art 4 of the ICCPR which provides:[28]

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

  1. [40]
    Miss Bloxham refers to an article on the Australian Government Attorney-General Department website which states "To date, Australia has not exercised its derogation power under Article 4 of the ICCPR." In this respect, Miss Bloxham argues that if "Article 4.3 has not occurred, then the limitations on Article 18.3 are unable to be enforced and Article 4.2 remains."[29]
  1. [41]
    Notwithstanding the arguments above, s 13(1) of the HR Act provides that "A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom." Section 13(1) of the HR Act clearly indicates that rights are generally not absolute and are allowed to be limited in justifiable circumstances. Although I may consider international law when interpreting statutory provisions under the HR Act,[30] to the extent of any inconsistency that may exist, I prefer and will apply the HR Act as enacted by Queensland Parliament.
  1. [42]
    Upon review of the Decision, it is clear that the decision-maker took Miss Bloxham's human rights into careful consideration. The decision-maker listed several rights which may be limited by the Decision before thoroughly outlining why he considers such limits to be reasonable and justified.[31] I reproduce part of that consideration here:

Human rights

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

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

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

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

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

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

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

I am not persuaded your private interests outweigh those of the Service and the public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally, including in respect to compliance with the Service's financial accountability obligations, particularly given the seriousness of the allegation against you.[32]

  1. [44]
    In Colebourne v State of Queensland (Queensland Police Service), Deputy President Merrell concluded:[33]

[84]  Section 13(2)(e) of the Human Rights Act 2019 provides that in deciding whether a limit on a human right is reasonable and justified, a factor that may be relevant is the importance of the purpose of the limitation. Again, reading the decision as a whole, Acting Assistant Commissioner Nelson considered whether the decision, which she found had the effect of enforcing Direction No. 12 which thereby limited Ms Colebourne's human rights, was reasonable and justified.

[85]  It was in that context that Acting Assistant Commissioner Nelson made the statement impugned by Ms Colebourne. The statement was made in the context of Acting Assistant Commissioner Nelson weighing up the reasons as to why the limits on Ms Colebourne's human rights were reasonable and justified.

  1. [45]
    Paragraph 5 of Direction No. 12 provides that:

While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to serve the community during a public health emergency.

  1. [46]
    Further, with respect to the seriousness of the allegation, the decision-maker concluded the following:

The failure (and ongoing failure) to obey a Direction of the Commissioner is very serious and in direct conflict with the functions, responsibilities and organisational values of the Service, the functions of a police officer and community expectations. This is especially so, given the explicit Direction was required to be given to all members of the Service in unprecedented circumstance being a public health emergency declare don 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant, its increased virulence and severity of disease and the reduction in neutralising antibody activity. As articulated in the Direction, in an extreme scenario, this risk 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.[34]

  1. [47]
    For the reasons outlined above, I conclude the decision-maker thoroughly considered and appropriately concluded that any human right that may be limited by the Decision was reasonable and justified in light of competing interests and the seriousness of those interests. On that basis, I reject Miss Bloxham's arguments that the Decision was not fair and reasonable by virtue of the consideration of her human rights.

Flexible working arrangements

  1. [48]
    Miss Bloxham contends her job could be conducted from any premises and the Respondent has requested employees work from home to minimise the spread during the pandemic.[35] Miss Bloxham argues that although she advised she was flexible to work from home, "the Respondent refused to negotiate this possibility and based on the evidence this is an unreasonable and unfair decision."[36] Further, Miss Bloxham contends that her absence has caused significant impacts on the current workforce.[37]
  1. [49]
    The decision-maker referred to s 4.8 of the Police Service Administration Act 1990 (Qld) which states that the Commissioner is responsible for (amongst other things) the efficient and proper administration, management and functioning of the QPS in accordance with law. The decision-maker stated that this includes compliance with the Work Health and Safety Act 2011 (Qld) which provides that the Commissioner has a duty, so far as is reasonably practicable, to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service.[38] The decision-maker concluded that Miss Bloxham's "failure to comply with the Direction impacts the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in section 4.8 of the PSA Act and the Commissioner's obligations under the WHS Act."[39]
  1. [50]
    I am satisfied the decision-maker considered Miss Bloxham's submission regarding the possibility of working from home and acknowledged support from her District Officer as an interim measure. Further, I am satisfied the decision-maker considered alternative options such as temporary transfer. On the evidence before the decision-maker, I accept it was open to him to reasonably conclude that alternative arrangements were not a solution to Miss Bloxham's ongoing refusal to comply with the Direction.[40] Further, I consider it was open to the decision-maker to determine that suitable meaningful alternative duties are not available in light of the nature of Miss Bloxham's role and the Service's workforce.[41]
  1. [51]
    On that basis, I reject Miss Bloxham's argument that failure to negotiate a flexible or alternative working arrangement rendered the Decision not fair and reasonable.

Reasonable excuse

  1. [52]
    Miss Bloxham contends that her inability to provide informed consent is a reasonable excuse for failing to comply with Direction No. 12.[42] As referred to above, Miss Bloxham's contention is that she has attended several forums, asked questions that remain unanswered and in order for her to be able to provide valid and informed consent, she requires information in relation to all the effects of the vaccination.[43] Further, Miss Bloxham argues valid consent "must be given voluntarily in the absence of undue pressure, coercion or manipulation" and refers to the "Australian Immunisation Handbook" in this regard.[44]
  1. [53]
    The decision-maker noted Miss Bloxham's contentions regarding inability to give informed consent and concluded the following:

These are not issues for me to determine the discretionary exercise I have in this matter. However, one of the considerations I do have is to assess the strength of evidence in the allegations against you, and I find the case against you appears to be compelling.[45]

  1. [54]
    In Colebourne v State of Queensland (Queensland Police Service), Deputy President Merrell concluded:

The nature of the discipline to which Acting Assistant Commissioner Nelson believed Ms Colebourne was liable centred on Ms Colebourne's refusal to comply with Direction No. 12. Given the reasons for the issuing of Direction No. 12, which was directed to the health and safety of members of the Service, then the Commissioner's prescribed responsibility provided for in s 4.8(1) of the Police Service Administration Act 1990 and the Commissioner's duty pursuant to the Work Health and Safety Act 2011 were clearly relevant considerations.[46]

  1. [55]
    The Show Cause Notice pertained to the following allegation:

It is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7(a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Senior Sergeant Leanne Major on 14 October 2021 as required by clause 7(c) of the Direction.

  1. [56]
    Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. The decision-maker reached that conclusion in relation to the allegations that:
  • Miss Bloxham failed to receive at least one dose of the vaccine by 4 October 2021 as required by cl 7(a) of Direction No. 12; and
  • Miss Bloxham failed to provide evidence of receiving a COVID-19 vaccine when requested to do so on 14 October 2021 as required by cl 7(c) of Direction No. 12.[47]
  1. [57]
    Miss Bloxham's contentions regarding having a "reasonable excuse" may have been relevant at the stage of considering whether she was eligible for an exemption. However, at the point this matter came to the decision-maker, his consideration turned to whether Miss Bloxham was liable to discipline and it was open to him to make those conclusions on the evidence before him, noting in particular that her exemption request had been previously refused.
  1. [58]
    On that basis, I conclude the Respondent's finding that Miss Bloxham has no reasonable excuse to not comply with Direction No. 12 does not render the Decision unfair and unreasonable.

Statutory requirements

  1. [59]
    I have considered Miss Bloxham's grounds of appeal and rejected each for the reasons outlined above. Although the following matters were not raised by Miss Bloxham as a specific appeal ground, for completeness I will consider whether the decision-maker has complied with the statutory requirements in arriving at the Decision.
  1. [60]
    Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. The decision-maker reached that conclusion in relation to the allegations that:
  • Miss Bloxham failed to receive at least one dose of the vaccine by 4 October 2021 as required by cl 7(a) of Direction No. 12; and
  • Miss Bloxham failed to provide evidence of receiving a COVID-19 vaccine when requested to do so on 14 October 2021 as required by cl 7(c) of Direction No. 12.[48]
  1. [61]
    The fact that Miss Bloxham had refused and was refusing to comply with Direction No. 12 is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that Miss Bloxham was liable to discipline under a disciplinary law.[49]
  1. [62]
    Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [63]
    The decision-maker considered the nature of the discipline to which he believed Miss Bloxham was liable and I am satisfied that was thoroughly outlined at pages 2 - 4 of the Decision.
  1. [64]
    Pursuant to s 137(9)(a) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice. Miss Bloxham did not raise any arguments in this regard and I am satisfied the Respondent afforded Miss Bloxham natural justice, noting the decision-maker's comments:

I am satisfied you have been afforded natural justice. Relevantly, the Notice provided details of the action I was considering taking and the relevant considerations in relation to that decision and afforded you an opportunity to show cause why you should not be suspended without pay before any such decision was made. Subsequently, you provided your response to the Notice which I have considered in making my decision regarding your suspension without remuneration. On this basis I am satisfied that you have been afforded natural justice in relation to my decision.[50]

  1. [65]
    Pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under this section, the chief executive must comply with Directive 16/20.
  1. [66]
    Clause 6 of Directive 16/20 relevantly provides:

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
  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. [67]
    I have concluded above that the decision-maker relevantly considered the nature of the discipline matter and note also that the decision-maker considered the public interest of Miss Bloxham remaining on suspension with remuneration:

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 and 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.[51]

  1. [68]
    For the reasons outlined above, I find the decision-maker complied with the statutory requirements and have not identified any element that renders the Decision anything other than fair and reasonable.

Conclusion

  1. [69]
    The Decision set out evidence in support of the ultimate conclusion to suspend Miss Bloxham without remuneration and included intelligible justification following consideration of the matters raised by Miss Bloxham. The allegations against Miss Bloxham are serious and the evidence supporting the Decision is compelling in my view.
  1. [70]
    I order accordingly.

Order

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

Footnotes

[1] Appeal Notice, 17 December 2021, 1.

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

[3] Appeal Notice, 17 December 2021, Schedule A.

[4] Appeal Notice, 17 December 2021, Schedule A.

[5] Acting Assistant Commissioner, Ethical Standards Command.

[6] Appeal Notice, 17 December 2021, Schedule A.

[7] Ibid 3.

[8] Respondent's Submissions, 4 January 2022, 1 [3].

[9] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[10] Appeal Notice, 17 December 2021, Schedule A.

[11] Ibid.

[12] Appeal Notice, 17 December 2021, Schedule A.

[13] Ibid.

[14] Notice of Suspension Without Remuneration, 26 November 2021, 7.

[15] Appeal Notice, 17 December 2021, Schedule A.

[16] Appellant's Submissions, 18 January 2022, 4 [13].

[17] Respondent's Submissions, 4 January 2022, 4 [10].

[18] Notice of Suspension Without Remuneration, 26 November 2021.

[19] Appeal Notice, 17 December 2021, Schedule A.

[20] Respondent's Submissions, 4 January 2022, 4 [11].

[21] Ibid.

[22] Notice of Suspension Without Remuneration, 26 November 2021, 7.

[23] Appeal Notice, 17 December 2021, Schedule A.

[24] Respondent's Submissions, 4 January 2022, Annexure: Email from Mr S Wyatt to Ms N. Bloxham, 18 December 2021.

[25] Response to Show Cause Notice for Suspension without Remuneration, 26 October 2021, [9].

[26] Ibid [10].

[27] Ibid [17].

[28] Ibid [18].

[29] Ibid [17].

[30] Human Rights Act 2019 (Qld) s 48(3).

[31] Notice of Suspension Without Remuneration, 26 November 2021, 5 - 7.

[32] Ibid 3.

[33] [2022] QIRC 018.

[34] Notice of Suspension Without Remuneration, 26 November 2021, 4.

[35] Appellant's Submissions, 18 January 2022, 1 [2].

[36] Ibid

[37] Ibid 2 [6].

[38] Notice of Suspension Without Remuneration, 26 November 2021, 2.

[39] Ibid 3.

[40] Ibid.

[41] Ibid 6.

[42] Appellant's Submissions, 18 January 2022, 3 [8].

[43] Response to Show Cause Notice for Suspension without Remuneration, 26 October 2021, [9], [10].

[44] Appellant's Submissions, 18 January 2022, 3 [8].

[45] Notice of Suspension Without Remuneration, 26 November 2021, 3.

[46] [2022] QIRC 018, [91].

[47] Notice of Suspension Without Remuneration, 26 November 2021, 1 - 2.

[48] Ibid.

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

[50] Notice of Suspension Without Remuneration, 26 November 2021, 3.

[51] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Bloxham v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Bloxham v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 37

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    16 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
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
4 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
Cite 3 - [2022] QIRC 18
Cite 4 - [2022] QIRC 18
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332

Cases Citing

Case NameFull CitationFrequency
Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 3122 citations
Campbell v State of Queensland (Queensland Health) [2022] QIRC 4052 citations
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 763 citations
Mahon v State of Queensland (Queensland Health) [2022] QIRC 1562 citations
Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 2652 citations
Sunny v State of Queensland (Queensland Health) [2022] QIRC 1192 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.