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  4. Karen v State of Queensland (Queensland Police Service) - [2022] QIRC 38

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Karen v State of Queensland (Queensland Police Service)[2022] QIRC 38

Karen v State of Queensland (Queensland Police Service)[2022] QIRC 38

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Karen v State of Queensland (Queensland Police Service) [2022] QIRC 38

PARTIES: 

Karen, Mishel

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2022/4

PROCEEDING:

Application to stay a decision appealed against

DELIVERED ON:

16 February 2022

HEARING DATE:

11 February 2022

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDER:

The application to stay the decision being appealed is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – application to stay decision appealed against – where direction issued mandating certain employees, unless exempted, must receive a COVID-19 vaccine – applicant applied for exemption from complying with the direction – exemption refused – applicant suspended on remuneration – determination to continue suspension without remuneration – applicant appealed against the decision to continue suspension without remuneration – applicant applied, pursuant to s 566(1) of the Industrial Relations Act 2016 for  the decision to be wholly stayed pending determination of the appeal – consideration of matters in granting a stay – consideration of whether appellant has an arguable case – consideration of balance of convenience – stay refused

LEGISLATION AND OTHER INSTRUMENTS:

Fair Work Act 2009 (Cth) s 65

Industrial Relations Act 2016 (Qld) s 562B, s 566

Police Service Administration Act 1990 (Qld) s 4.9

Public Service Act 2008 (Qld) s 137, s 197

Directive 16/20 Suspension cl 1, cl 4, cl 5, cl 6

Instrument of Commissioner's Direction No. 12 paras 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15

CASES:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001

Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453

Frigo v Culhaci [1998] NSWCA 88

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

MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235

Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116

Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398

Patterson v BTR Engineering (Aust) Ltd (1989) 19 NSWLR 319

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439

State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190

APPEARANCES:

Ms M Karen, the Applicant in person

Mr R Gillespie and Ms J Millar of the Queensland Police Service for the Respondent

Reasons for Decision

  1. [1]
    It is appears to be accepted only that Ms Mishel Karen is employed by the Queensland Police Service ('the Service') as an Administration Officer (AO4).
  2. [2]
    The Service has stated that Ms Karen is a frontline support staff member, within the meaning of paragraph 15 of the Queensland Police Service's Instrument of Commissioner's Direction No. 12 ('Direction No. 12').  In the Executive Briefing Note 'Recommendation' dated 22 October 2021, it is stated that Ms Karen of People Capability Command, "is employed in the position of AO4 with Operational Policing and Leadership.  In the course of her duties, Ms Karen is employed in a non-corporate services role and provides essential support, enabling the delivery of frontline services, including services performed at QPSA."  The Service confirms that Direction No. 12 applies to Ms Karen.[1]
  3. [3]
    However, Ms Karen has instead argued that her role was dissolved in February 2021 and that she "has been displaced" since that time.  Ms Karen contends that she is neither "a frontline police officer, staff member or frontline support staff member".  Ms Karen stated that she is "currently in 'Administrative Transfer' in the 'Transition Positions' Work Unit (1920) of the 'Transition and Restructure Business Unit (TPFLBU) within the Queensland Police Service, not People Capability Command as stated by the decision maker in the show cause notice."[2] 
  4. [4]
    On 7 September 2021, pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld), the Commissioner of the Service ('the Commissioner') issued Direction No. 12, concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members retained by the Service.
  5. [5]
    Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to the Police Service Administration Act 1990 and / or the Public Service Act 2008 (the PS Act) who are frontline staff members, or frontline support staff members, as defined in paragraph 15 of the Direction.
  6. [6]
    Relevantly, the term 'frontline support staff member' is defined exhaustively under paragraph 15 of Direction No. 12 as:

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

  1. [7]
    Paragraph 7 of Direction No. 12 provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraph 8 or 9, all such staff members must receive at least one dose of a COVID-19 vaccine by 4 October 2021, receive a second dose of a COVID-19 vaccine by 24 January 2022, and provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate.
  2. [8]
    The Direction provides an exemption from vaccination requirements if the police officer or staff member is unable to be vaccinated due to a medical contraindication and they provide medical evidence to this effect in accordance with the direction, or if the Commissioner or the Commissioner's delegate grants an exemption due to a genuine religious objective or due to other exceptional circumstances.
  3. [9]
    In a decision letter dated 14 December 2021, A/Assistant Commissioner, Ethical Standards Command, Virginia A Nelson APM informed Ms Karen she would be suspended without remuneration from midnight on 17 December 2021 until 13 June 2022, unless cancelled earlier ('the Decision').
  4. [10]
    By Appeal Notice filed 4 January 2022, Ms Karen appeals the Decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[3] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[4] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[5]
  5. [11]
    Within her grounds of appeal Ms Karen seeks an interim order that the Decision be wholly stayed pending the determination of her appeal.[6]
  6. [12]
    Section 566(1) of the IR Act relevantly provides that on appeal, the Commission may order that the decision being appealed be wholly or partly stayed pending the determination of the appeal or a further order of the Commission.
  7. [13]
    The question for my determination is whether I should grant the stay as sought by Ms Karen.
  8. [14]
    For the reasons that follow, I dismiss Ms Karen's application for a stay of the Decision.

Background

  1. [15]
    Direction No. 12 was issued and took effect from 7 September 2021. Paragraphs 1 to 5 of Direction No. 12 set out the reasons why the Commissioner made the Direction, in respect of the police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19.
  2. [16]
    Those paragraphs provide:

Background

  1.  A public health emergency was declared on 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.
  1.  In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID‑19 through the Queensland Police Service would take police officers and staff members out of service while they Karen v State of Queensland (Queensland Police Service) [2022] QIRC 38undertake quarantine periods or recover from COVID‑19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.
  1.  While it is primarily police officers who are on the front line, many staff members:

a) have close working relationships with police officers;

b) interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and,

c) are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).

  1.  The Work Health and Safety Act 2011 places a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service.
  1.  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. [17]
    Direction No. 12 provides for the ability for police officers and staff members, to whom the direction applies, to apply for and be granted an exemption from the mandatory vaccination requirement. Paragraphs 8 to 11 of Direction No. 12 provide:

Exemption from requirements for vaccination against COVID-19

  1.  A police officer or staff member is exempt from the requirements in paragraph 7 if:

a) the police officer or staff member is unable to be vaccinated due to a medical contraindication; and

b) the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:

i) the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and

ii) whether the condition is temporary in nature, and, if so, the duration.

  1.  A police officer or staff member is also exempt from the requirements in paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:

a) due to a genuine religious objection; or

b) due to other exceptional circumstances.

  1.  A police officer or staff member who applies for an exemption under paragraph 9 must provide any supporting evidence requested.
  1.  An exemption granted under paragraph 9 must be given in writing and may be subject to conditions. A police officer or staff member given an exemption must comply with any conditions specified therein.
  1. [18]
    On 21 September 2021, the Commissioner sent an email to all police officers and staff members advising that all staff to whom Direction No. 12 applies were required to provide proof of receiving at least one COVID-19 vaccination to their Officer in Charge or Manager by 4 October 2021.
  2. [19]
    Ms Karen applied for an exemption from the Direction.  On 29 September 2021, Ms Karen was advised by Superintendent Shane Holmes of PCAC that the application for exemption had been declined by the Vaccination Exemption Committee (VEC) and that she was required to comply with the Commissioner's Direction within 48 hours and provide proof of first vaccination.  On 4 October 2021, the Assistant Commissioner PCAP received further correspondence from Ms Karen raising issues on her exemption application, and based on advice from the Director of Employee Relations was permitted to make further submissions for exemption which were received on 11 October 2021 and provided to the VEC for determination.  Based on the information provided, the VEC approved a temporary exemption up to 18 October 2021 in which time Ms Karen was to provide evidence of a medical contraindication in relation to receiving the vaccine for further consideration by the Committee or otherwise be vaccinated in compliance with the Commissioner's Direction.  On 19 October 2021, Ms Karen was again contacted by Superintendent Shane Holmes of PCAP and confirmed that she had not complied with the requirements of the temporary exemption as stipulated by the VEC.[7]
  3. [20]
    As a consequence of her failure to be vaccinated or otherwise obtain an exemption, Ms Karen was 'suspended from duties with remuneration', via a Suspension Notice dated 25 October 2021.  Ms Karen received that Notice the following day.
  4. [21]
    At the same time, Ms Karen was requested to show cause,[8] within seven days, why her suspension should not be without pay.[9]
  5. [22]
    Ms Karen responded to the show cause notice on 2 November 2021.  Ms Karen's submissions were said to have highlighted: concerns about the potential impact of the vaccine on her health and medical conditions, preference for a vaccine choice without pressure or coercion, proposal to carry out duties remotely, experience of stress and lack of sleep, concerns about finding another job and financial hardship of losing her income, request to be transferred to another government department, and that she had applied for an exemption to the VEC on 3 occasions, all were declined and a review of these decisions was sought. 
  6. [23]
    On 14 December 2021, A/Assistant Commissioner Nelson informed Ms Karen her suspension without remuneration would be effective from midnight on 17 December 2021 pursuant to ss 137(1)(b) and (4) of the PS Act.[10]  That Notice included consideration as to the compatibility of that decision with the Human Rights Act 2019 (Qld).

Amended Directions Order

  1. [24]
    I issued an Amended Directions Order on 6 January 2022 that:
  • the parties file and serve written submissions with respect to the application for a stay; and
  • the application for a stay of the decision being appealed against be set down for Hearing on Friday 11 February 2022.
  1. [25]
    I granted Ms Karen leave to appear at the Hearing via video link.

Questions to be Decided

  1. [26]
    I explained that the purpose of this Hearing is only to decide the 'Application for a Stay' component of the Form 89 Appeal Notice, filed by Ms Karen on 4 January 2022. 
  2. [27]
    The question for my determination is whether I should grant the stay as sought by Ms Karen.

Relevant Principles

  1. [28]
    Section 566(1) of the IR Act provides:

566  Stay of decision appealed against

  1. (1)
     On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—
  1. (a)
     the determination of the appeal; or
  1. (b)
     a further order of the industrial tribunal.

...

  1. [29]
    The principles relevant to an application to stay a decision under appeal were conveniently set out by Merrell DP in Colebourne v State of Queensland (Queensland Police Service)[11] ('Colebourne') where his Honour observed:[12]

[32] Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed.

[33] ... the relevant principles that apply ... in determining whether or not to exercise discretion ... to grant a stay ... are:

  • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;[13]
  • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;[14]
  • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair; [15]
  • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;[16]
  • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;[17]
  • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and
  • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.[18]

[34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.[19]

[35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.[20]

[36] The above-mentioned principles have been applied by the Industrial Court of Queensland[21] and by the Commission[22] in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts.

  1. [30]
    At the Hearing, I explained the considerations that would inform my decision on the stay application, ahead of inviting the parties' oral submissions as follows:

So the question for my determination is whether I should grant the stay, as sought by Ms Karen.  And – yes, just bear with me, but for Ms Karen's benefit, I'll just touch on two of the key considerations that will inform that decision.  So firstly, Ms Karen bears the onus of demonstrating a proper basis for a stay which will be fair to both herself, but also the service, having regard to the balance of convenience.  So that is, the balance of convenience involves consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.  Okay?  And secondly, in determining whether or not to grant  a stay, a further issue I'm required to consider is whether Ms Karen's appeal raises an arguable case.  So as previously observed in this Commission, a good arguable case is one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 percent chance of success.  So just quoting the explanation set out by Deputy President Merrell in another case, he said:

The prospects of success will favour the refusal of a stay if the prospects of the appeal can be seen to be very poor. 

As the respondent pointed out in their written submission, it's a less stringent test than requiring proof on the balance of probabilities.[23]

Exhibits

  1. [31]
    The parties consented to the proposal that the materials already filed in matter PSA/2022/4 are made Exhibits. 
  2. [32]
    Those filed materials, including the parties' written materials on the Stay Application, were considered in addition to the oral submissions made by the parties at the Hearing.
  3. [33]
    I advised that the Exhibits in this matter are as follows:

…Exhibit 1 will be the Form 89 Appeal Notice, including Schedule A 'Appeal Grounds'

Exhibit 2 will be the Notice of Suspension without Remuneration, dated 14 December 2021

Exhibit 3 will be the Executive Briefing Note

…Exhibit 4 will be Ms Karen's Written Submissions in support of her application for a stay of the decision being appealed against, dated 20 January 2022

Exhibit 5 will be the Respondent's Written Submissions opposing the stay application, dated 3 February 2022

Exhibit 6 will be the Queensland Police Service Instrument of Commissioner's Direction (No. 12), dated 7 September 2021

Exhibit 7 will be the Application to Undertake Outside Employment, signed by the Ms Karen on 23 February 2021

Exhibit 8 will be the email from Ms Karen, dated 10 February 2022.  But, Ms Karen, I don't think the various news article need be Exhibits in this hearing, just to – as a qualifier there.  Yes.

Exhibit 9 will be the 2020 – 2021 Tax Return, provided as an attachment to Ms Karen's email dated 10 February 2022

Exhibit 10 will be the 2020 – 2021 Tax Return, provided as an attachment to Ms Karen's email dated 10 February 2022

Exhibit 11 will be the letter from Deputy Commissioner Steve Gollschewski dated 19 July 2021, provided as an attachment to Ms Karen's email dated 10 February 2022

Exhibit 12 will be the copy of the Medical Exemption written by Ms Karen's GP, Dr Katie Lomidze, provided as an attachment to Ms Karen's email dated 10 February 2022

Exhibit 13 will be the letter from Bishop George of Canberra dated 8 September 2021, provided as an attachment to Ms Karen's email dated 10 February 2022.

So, what all that means is, in my view, the only materials not potentially relevant to this Stay Application Hearing are the links to the various news articles, provided as an attachment to Ms Karen's email dated 10 February 2022.  Other than that, everything will be made an exhibit.  All right?  Okay.[24]

Ms Karen's Oral Submissions

  1. [34]
    Ms Karen's oral submissions encompassed the following points:
  • Her QPS employment is her primary income.[25]
  • The secondary employment she had applied for was essentially a hobby.[26]  While she does derive an income from it, the enterprise ran at a loss last year.[27]  Ms Karen stated that she made the application for secondary employment out of an abundance of caution, "because I am doing something outside of work that might constitute as work".[28]  Whilst she was told by her supervisor that she didn't need to submit the application, "I just wanted to have it in there just in case."[29]  With respect to quantifying the income earnt from the secondary employment, Ms Karen stated that "I don't feel like I've been deceitful in not telling them my pay.  No one's ever asked me for it, and so then now I've provided my tax return…"[30]  Ms Karen indicated that any money earnt is appropriately declared to the ATO.[31]
  • Ms Karen is "really willing to work".[32]  She stated that she is a transitional employee and would "love to go to the government pool of employees and be allocated…a job somewhere else."[33]  Ms Karen said that she had spoken to the AC and to different people who had told her "they were organising that because there isn't enough position with the QPS with my skillset, and it just never happened…I could have been useful this whole time, but, instead, they've kind of left me, like, on this suspension thing.  I don't think it really needed to happen like that."[34]
  • Ms Karen stated that she would also like the VEC to consider her medical certificate, exempting her from getting the vaccination for a period of four months.[35]  The correspondence from Dr Katie Lomidze dated 31 January 2022 stated:

Therefore Mishel's vaccination should be deferred up until 4 months after infection as per latest ATAGI guidelines.

  • Ms Karen stated that she would also like the VEC to consider her "full exemption from the archbishop",[36] that is the correspondence from Bishop George of Canberra, Administrator of the Australia – New Zealand Diocese Russian Orthodox Church outside of Russia dated 8 September 2021.
  • Ms Karen stated that those recent two documents relevant to her claim for exemption on both 'medical' and 'religious' grounds had been provided to the QPS.
  • Ms Karen also referred to the documentation emailed to the Industrial Registry and Respondent representatives dated 10 February 2022, including Tax Returns, medical exemption correspondence, religious exemption correspondence and correspondence stating that her position with the QPS has been realigned and that she would be allocated a new position.[37]

Ms Karen's Written Submissions – 20 January 2022

  1. [35]
    Ms Karen's written submissions filed on 20 January 2022 with respect to her Stay Application, encompassed the following points:
  • The decision to suspend Ms Karen without remuneration dated 14 December 2021 was an improper exercise of power under which it was purported to be made because the Police Commissioner revoked Direction No. 12[38] on the same day.  "The Show Cause Notice is invalid with no valid Direction No. 12."[39]
  • Direction No. 12 is being challenged in the Supreme Court.  If the Direction is found to be invalid, there is a prospect that Ms Karen's contravention may not be a disciplinary event.[40]
  • A breach of natural justice occurred in the making of the decision.[41]  That was earlier clarified to mean that Ms Karen did not get a fair hearing in circumstances where "It was publicly announced by the Police Commissioner that all employees suspended on pay would immediately be issued with a show cause notice as to why the suspension would continue without pay."[42]
  • Required legal procedures were not observed.[43]  That was earlier clarified to mean that written decisions require that findings on material questions of fact be set out and the evidence upon which they are made referred to.[44]
  • No evidence or material justified the decision.[45]
  • There was an error of law.[46]
  • The decision was contrary to law.[47]
  • Ms Karen has made numerous requests for "Mandatory Safety Data Sheets" under s 341 of the FWA to receive COVID-19 Risk Assessment and COVID-19 Vaccination in her workplace report from her employer.  She states, "federal law that overrides ALL State and Territory Work Health & Safety Acts."  Ms Karen further refers to s 89 Transfer to a safe job provisions under the IR Act, and stated that "it would be reasonable that the employer must be able to transfer employees to other appropriate work that will expose the employee to risks".[48]  Ms Karen earlier submitted that she has a right to make a complaint or inquiry about her working conditions and environment under s 341 of the FWA.[49]
  • An employee is entitled to be suspended with pay, unless they are liable to discipline.  The decision of 14 December 2021 confirmed that no determination had been made in relation to the allegation at this time.  Therefore, Ms Karen posits that she has not been found liable for disciplinary action, it is uncertain "whether the alleged conduct is even a disciplinary event" and the decision was an improper exercise of power.[50]
  • Ms Karen refers to the current advice of the Australian Technical Advisory Group on Immunisation (ATAGI), including on the COVID-19 booster vaccination.  She states that in line with the recommendations of that body, she "would qualify for at least a 6 month temporary medical exemption for COVID-19 vaccines, to suspend Ms Karen without remuneration has no relevance… ATAGI notes that natural immunity from past infection is recognised as fully-vaccinated in several European countries…While evidence suggests that past infection reduces the risk of reinfection for at least six months (and therefore may be regarded as a temporary exemption for vaccination for a maximum of six months)…"[51]
  • "Ms Karen should qualify for full exemption from the COVID-19 vaccine on religious beliefs if the decision makers of the Queensland Police Service Exemption Committee were reasonable persons."[52]  Correspondence from Bishop George of Canberra exempts Ms Karen from receiving the COVID-19 vaccine.  Ms Karen has provided her baptism certificate extract, demonstrating her Russian Orthodox faith.
  • Ms Karen states that the Show Cause Notice was deficient in the areas of lack of adequate particularisation, disciplinary law, procedural fairness and application.[53]
  • Ms Karen states that the process was deficient because the decision maker did not possess the expertise to determine it, the Notice revealed the matter to have been pre-determined and the disciplinary process was not complied with.[54]
  • Her submission referred to several legislative provisions "that protects the individual, Ms Karen."  Those included the "Commonwealth Constitution…QLD Human Rights Act 2019…COVID-19 Emergency Act 2020…Public Health Act 2015…Biosecurity Act 2015…Bill of Rights 1688…Privacy Amendment Act 2020…(and) The Nuremburg Code…"[55]

Ms Karen's Written Submissions – 4 January 2022

  1. [36]
    Ms Karen's Appeal Notice filed on 4 January 2022 sought both to challenge the decision to suspend her without remuneration and that the decision be stayed pending the determination of her appeal.  That written material contained some additional arguments:
  • The decision maker did not consider the entirety of cl 6.3 of the Suspension Directive 16/20, in particular the "public interest of the employee remaining on suspension with remuneration" and "any factors not within the control of the agency that are preventing the timely conclusion of the discipline process."[56]  Ms Karen maintains it is "notorious" that employees of the Service and wider public service remain suspended with remuneration for months, or even years.[57]  "The purpose of the decision would appear to be to apply coercive economic pressure on the employee to undertake a particular course of action contrary to the legislative purpose of section 137."[58]  Ms Karen also notes that the decision maker has weighed her "…Human Rights against the need for compliance with the Police Direction.  An absolute admission that the exercise of discretionary power was for a purpose other than for which the power was conferred."[59]
  • The decision maker has taken into account compliance with the WHS Act, current economic climate and expenditure of public resources.  Ms Karen contends these are all irrelevant considerations where suspension on normal remuneration is the default position.[60]
  • Ms Karen stated that the decision maker has exercised power to compel compliance with Direction No. 12, deciding to suspend her without pay as a form of punishment.[61]
  • The decision maker exercised the discretionary power to suspend without pay "at the behest of the public comments made by the Police Commissioner" and "without regard to the merits of the particular case…"[62]
  • Ms Karen argued that her role was dissolved in February 2021 and that she "has been displaced" since that time.  Ms Karen contends that she is neither "a frontline police officer, staff member or frontline support staff member".  Ms Karen stated that she is "currently in 'Administrative Transfer' in the 'Transition Positions' Work Unit (1920) of the 'Transition and Restructure Business Unit (TPFLBU) within the Queensland Police Service, not People Capability Command as stated by the decision maker in the show cause notice.  Further, Ms Karen submitted that the employer exceeded the transition period for finding a suitable position for her, prior to the delivery of the initial show cause notice on 26 October 2021.[63]
  • "The decision maker did not deliberate Ms Karen's Enterprise Agreement under s 65 of the Fair Work Act 2009 (the Act) with her employer Queensland Police Service, an approved and executed 'Flexible Work Arrangement' that authorised Ms Karen to work from home, approved April 2021."[64]

Respondent's Oral Submissions

  1. [37]
    The Respondent's oral submissions encompassed the following points:
  • That Ms Karen has "provided negligible information to demonstrate a proper basis for a stay."[65]  Ms Karen has provided limited arguments that go to the narrow matter of the application for a stay, rather her appeal application and submissions "goes to the merits of the appeal itself…"[66]
  • With respect to the principles relevant to the exercise of discretion to grant a stay, Ms Karen has not made out an arguable case and the balance of convenience does not favour granting the stay until the appeal is heard.[67]
  • The Decision to place Ms Karen on suspension without pay for failing to comply with Direction No. 12 is fair and reasonable, and reasonably open to the decision maker to take.[68]
  • The decision maker set out clear evidence for the Decision to suspend Ms Karen without pay and included "intelligible justification" consistent with those obligations.[69]

Respondent's Written Submissions – 3 February 2022

  1. [38]
    The Respondent's written submissions filed on 3 February 2022 with respect to Ms Karen's Stay Application, encompassed the following points:
  • The Respondent stated that the decision to suspend Ms Karen without pay has been in effect since 14 December 2021.[70]

 No arguable case

  • Ms Karen presented "limited arguments that go to the narrow matter for appeal, being whether the decision was fair and reasonable."[71]
  • Ms Karen has no evidence that the decision maker used her discretionary power to suspend her without remuneration in "bad faith".[72]
  • The allegations against Ms Karen are serious and the evidence that she failed to comply with Directive No. 12 is compelling. Ms Karen does not have a valid exemption from complying with the Direction.[73]
  • "The requirements for the decision-maker to reasonably believe that the Appellant was liable for discipline under a disciplinary law is outlined in Colbourne[74]…on the facts before the decision-maker, the Appellant had refused and was refusing to comply with a lawful direction by virtue of not complying with the requirements under the Direction and these facts are sufficient for the decision-maker to have a reasonable belief that the Appellant was liable to discipline under a disciplinary law."[75]
  • Natural justice has been provided to Ms Karen.  She was given seven days to respond to the Show Cause Notice, the decision maker considered her response and it was reflected in the decision dated 14 December 2021.[76]
  • The Decision to suspend Ms Karen without remuneration for failing to comply with the Direction is fair and reasonable -  "It is not a disciplinary decision, but a decision open to the decision maker in relation to the Appellant who is liable to discipline."[77]

 Balance of convenience

  • The balance of convenience is the course most likely to achieve justice between the parties pending the resolution of the substantive appeal, bearing in mind the consequences of the grant or refusal of the stay.
  • Should Ms Karen succeed in her appeal, "the Respondent would be in a position to remediate any loss of pay suffered by the Appellant."[78]  However, if the Respondent were successful it would be difficult to recover the excess pay provided to Ms Karen, and indeed the State would bear the recovery cost to do so.
  • Should the stay be granted, it is unclear how long the appeal process will take.  Ms Karen may receive remuneration whilst suspended for an unknown period.  The requirement to consider the public interest in deciding to suspend an employee without pay includes the expenditure of public resources.[79]
  • Ms Karen's show cause response, Appeal Notice and submissions in support of her Stay Application provide no evidence of the financial impact of being suspended without pay.  Ms Karen has currently two sources of alternative income and she has not divulged the amount of income derived from outside employment since the suspension without pay commenced.[80]
  • It is open to Ms Karen to apply for payment for recreation and long service leave entitlements accrued prior to the commencement of her suspension without pay.[81]

 Fairness to all parties

  • The onus is on Ms Karen to demonstrate a proper basis for a stay which will be fair to herself but also the Service.
  • Ms Karen's reference to separate decisions to suspend others with pay is not analogous to her matter and "were not related to the vaccination direction applicable to the Appellant."[82]
  • The decision to suspend Ms Karen without pay is fair and considered.  "…Even in the event that it is determined that (Ms Karen) does have an "arguable case" on appeal, the balance of convenience does not support the granting of a stay."[83]

Questions arising at the Hearing

  1. [39]
    A number of questions were posed at the Hearing of this matter and responses provided by the parties, as follows:
  • Ms Karen confirmed that the medical certificate she relied on to demonstrate a "medical exemption" was not before the decision maker ahead of the 14 December 2021 determination to suspend her without pay being made.[84]
  • Ms Karen confirmed that the correspondence she relied on to demonstrate a "religious exemption" was not before the decision maker ahead of the 14 December 2021 determination to suspend her without pay being made.[85]
  • The parties confirmed that the accrued leave available to Ms Karen had been paid to her last week.[86]
  • Ms Karen confirmed that she had not been engaged in any other alternative employment during the period of her suspension with pay so far.  Her daughter's and her own illnesses have impeded her capability to engage in alternative paid work.[87]
  • The Respondent confirmed that in the event Ms Karen is successful in her substantive appeal, the QPS will be in a position to remediate any loss of pay to her.[88]

Questions arising after the Hearing

  1. [40]
    I had cause to convene a further teleconference discussion with both parties later in the afternoon.[89] A procedural question had arisen from my consideration of the documentation recently obtained by Ms Karen, that she now sought to rely on to support her claims for exemption on religious and medical grounds.
  2. [41]
    Whilst I appreciated that Ms Karen's new documentation was not before the Vaccination Exemption Committee when they made their recommendation, nor before the decision maker when she made the decision, I asked the Respondent whether or not there was any capacity for Ms Karen to submit the new documentation to the VEC for their review of her circumstances at this point? 
  3. [42]
    The Respondent referred to [11] - [12] of the QPS Guidelines "COVID-19 Vaccination Exemption Process", noting that the two documents provided by Ms Karen did not meet the requirements of those provisions at the present time.  However, the Respondent clarified that in the event that Ms Karen obtained documentation that did meet the specifications detailed, it would be open to her to formally write to the Acting Assistant Commissioner, provide the new material and request it be again referred to the VEC for their consideration and recommendation. 
  4. [43]
    With reference to the document titled "Manage Employee Suspensions", under the heading "Review decision", I further noted that it states that:

Reviewing the decision regularly is important to ensure the decision to suspend (with or without pay) remains appropriate.  A decision maker should consider if there is new information that may affect or change the previous decisions and document their decision making, including what was taken into account, when changing or affirming the decision. 

With that in mind, I also appreciate that Ms Karen's submission of the two new documents obtained may trigger the decision maker's periodic review on that basis.

  1. [44]
    Ms Karen indicated that she had not previously seen the QPS Guidelines "COVID-19 Vaccination Exemption Process".  The Respondent undertook to provide that document to her following the teleconference.

Relevant legislative provisions

  1. [45]
    The PS Act provides that (emphasis added):

137Suspension

  1. (1)
    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—

(a)for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or

(b)for a public service employee—the employee is liable to discipline under a disciplinary law.

…

  1. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—

(a)the person is suspended under subsection (1)(b); and

(b)the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.

…

  1. (8)
    The chief executive may cancel the suspension at any time.
  1. (9)
    In suspending a public service employee under this section, the chief executive must comply with—

(a)the principles of natural justice; and

(b)this Act; and

(c)the directive made under section 137A.

…

  1. [46]
    The Suspension Directive 16/20 provides that (emphasis added):
  1. Purpose

1.1 This directive:

(a) outlines the procedures relating to suspension

(b) details the periodic reviews of suspension matters

(c) establishes natural justice considerations, including requirements about providing reasons for decisions about suspensions

(d) describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension

(e) details the circumstances in which an employee suspended without remuneration may be reimbursed for remuneration they do not receive during suspension after a determination on discipline penalty is made.

…

  1. Principles

4.1 Suspending an employee should not be the automatic or default position. The PS Act requires that before suspending an employee, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer, or another alternative working arrangement, that is available to the employee.

4.2 Suspension decisions are to be made fairly:

(a) Natural justice is required in relation to a suspension without normal remuneration

(b) Natural justice is not required in relation to a suspension with normal remuneration.

…

5 Suspension considerations

5.1 Suspension

(a) Section 137 of the PS Act provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes:

(i) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended

(ii) for a public service employee—the employee is liable to discipline under a disciplinary law.

…

  1. 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:

(a) the nature of the discipline matter

(b)  any factors not within the control of the agency that are preventing the timely conclusion of the discipline process

(c) the public interest of the employee remaining on suspension with remuneration.

6.4  A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence. As part of the suspension process:

(a) The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a 'show cause' process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.

(b) The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.

(c) The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.

(d) If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

6.5 A public service employee may appeal a decision to suspend without normal remuneration. An appeal is made to the Queensland Industrial Relations Commission (QIRC) and further information can be found in their Appeals Guide.

…

Consideration

  1. [47]
    Ms Karen bears the onus of demonstrating that the stay order she has sought is 'fair to all parties' having regard to the balance of convenience.  That is, the course most likely to achieve justice between the parties pending resolution of the question of Ms Karen's entitlement to relief, in this case, a determination as to whether the Decision to place Ms Karen on unpaid suspension was fair and reasonable.
  2. [48]
    In determining whether or not to grant a stay, I am obliged to also consider whether Ms Karen's appeal raises an arguable case.  As observed by O'Connor VP in State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act,[90] having regard to the principles in Alexander, such an assessment:

... is designed to be 'protective' of the Respondent in the sense of being undertaken to test whether the appeal has 'been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgement.[91]

Arguable Case on Appeal

  1. [49]
    As previously observed in this Commission,[92] a 'good arguable' case is 'one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 percent chance of success'.[93]
  2. [50]
    It goes to whether Ms Karen's prospects in her substantive appeal can be said to be 'not very poor'.
  3. [51]
    I have set out the parties' arguments earlier in this Decision, so will refer only to those particularly relevant to my considerations here.
  4. [52]
    Ms Karen contends the decision-maker has misconstrued cl 6.3(c) of Suspension Directive 16/20 and similarly failed to give consideration to cl 6.3(b) when determining whether normal remuneration is not appropriate.[94] Clause 6.3(c) concerns the requirement of the Service to consider the public interest of the employee remaining on suspension with remuneration and cl 6.3(b) requires the Service to consider factors not within its control that are preventing the timely conclusion of the disciplinary process.
  5. [53]
    Ms Karen further submits the decision to suspend her without remuneration is intended to coerce her to be vaccinated, through economic pressure, contrary to the legislative purpose of s 137 of the PS Act.[95]
  6. [54]
    In an argument about differential treatment between employees, Ms Karen highlights the circumstances of other senior employees noting that, notwithstanding the seriousness of the disciplinary allegations against them, they were suspended on pay for periods of four years and eighteen months respectively.[96]
  7. [55]
    Ms Karen questions the validity of Direction No. 12, noting ongoing proceedings in the Supreme Court.[97]
  8. [56]
    Ms Karen contends that Direction No. 12 was revoked on 14 December 2021, and thus the Notice of Suspension without Remuneration issued to her on that same day is invalid.  Ms Karen's apparent point being that the decision maker could not have reasonably believed that she could be liable under a disciplinary law, if the Direction No. 12 was revoked on that same day.[98]
  9. [57]
    Ms Karen stated that the decision maker noted that "no adverse finding or determination has been made against you in relation to the allegation at this time", however paid suspension is the default position unless the employee is liable to discipline under a disciplinary law.[99]
  10. [58]
    She references the decision maker's comments under the heading 'Human rights', alleging this section is 'An absolute admission that the exercise of discretionary power was for a purpose other than that for which it is conferred'.[100]
  11. [59]
    It is also argued the decision-maker took into account an irrelevant consideration by considering the current economic climate and the expenditure of public resources.[101] Ms Karen alleges these are irrelevant considerations having regard to the scheme of the Act, in which suspension on normal remuneration is the default position.
  12. [60]
    She maintains A/Assistant Commissioner Nelson acted improperly in exercising a personal discretionary power at the behest of another person, being the Commissioner.  In this respect she alleges the reasons for exercising the discretion are relevant not just to the final decision, but also the decision to commence a process to exercise the power.[102]
  13. [61]
    Ms Karen submitted that she has now obtained documentation evidencing her exemption should be granted on both religious and medical grounds.[103]  She has filed those documents in connection with both her stay application and her substantive appeal.[104]
  14. [62]
    Finally, I note the dispute between the parties as to whether or not Ms Karen is bound by Direction No. 12 at all.  Ms Karen's position is that her role was dissolved in February 2021, that she "has been displaced" since that time, and her status in the relevant period is neither "a frontline police officer, staff member or frontline support staff member".  Ms Karen stated that she is "currently in 'Administrative Transfer' in the 'Transition Positions' Work Unit (1920) of the 'Transition and Restructure Business Unit (TPFLBU) within the Queensland Police Service - not People Capability Command, with Operational Policing and Leadership, as asserted by the Service.
  15. [63]
    In response, the Service maintains the decision to place Ms Karen on suspension without remuneration for failing to comply with a direction is fair and reasonable, and one which is open to the Service in circumstances where the evidence of her non-compliance is compelling and where no valid exemption was held.[105]
  16. [64]
    It is argued Ms Karen was afforded natural justice and provided the requisite time to respond to the show cause notice.[106] Moreover, the written decision sets out clear evidence for the Decision and includes intelligible justification, consistent with the decision-maker's obligations under the PS Act and the Directive.[107]
  17. [65]
    I observe that the bulk of those arguments[108] bear striking resemblance to the submissions made by in Radev v State of Queensland (Queensland Police Service) ('Radev'), in the stay application recently decided by Knight IC.[109] 

Conclusion – Arguable case

  1. [66]
    A practical view of this matter is that Direction No. 12 required Ms Karen to get vaccinated, unless she had a valid exemption. 
  2. [67]
    She did not get vaccinated. 
  3. [68]
    She did not have a valid exemption.
  4. [69]
    On the face of it, one may reasonably believe Ms Karen is liable for discipline.
  5. [70]
    I acknowledge the factual contest between the parties as to the nature of Ms Karen's role and thus whether or not Direction No. 12 applied to her.  Although Ms Karen emailed materials including correspondence from Deputy Commissioner Gollschewski dated 19 July 2021 on the evening before the Hearing, the Service has not had an adequate opportunity to respond to that.  What remains is the competing positions of the parties at this time. 
  6. [71]
    I note Ms Karen has recently obtained documents she hopes will progress her claims for medical and / or religious exemption.  Ms Karen now has information regarding the Service's requirements for the presentation of documentation of that type and the process open to her for its consideration.  That is a separate pathway to my consideration of her stay application.
  7. [72]
    As I have previously observed the parties' submissions in Radev to be very similar in this case, I concur with Industrial Commissioner Knight's broad assessment of the 'arguable case' principle in that matter, where she states:

Although I hold some concerns about several of the arguments within the appeal notice in support of Mr Radev's contentions as to why the decision to suspend him was unfair and unreasonable, it has long been accepted that the test to determine whether he has an arguable case is a less stringent test than requiring proof on the balance of probabilities.[110]

Although a matter for later submissions, it is possible there is an argument as to whether the Service gave adequate consideration to several of the factors set out in cl 6.3 of the Directive.

In the absence of further materials and without prejudicing the appeal decision itself, I accept Mr Radev's prospects of success on appeal, are, at least, arguable.

 Balance of Convenience

  1. [73]
    As earlier explained, the balance of convenience is the course most likely to achieve justice between the parties pending the resolution of the substantive appeal, bearing in mind the consequences of the grant, or refusal, of the stay.
  2. [74]
    I have set out the parties' arguments earlier in this Decision, so will refer only to those particularly relevant to my considerations here.
  3. [75]
    The Service has statutory obligations for ensuring the health and safety of police officers and staff members, in addition to the health and safety of other people, including the public, with whom police officers and staff members interact when performing their functions.
  4. [76]
    The Commissioner has attempted to address the Service's obligations, in part, by issuing Direction No. 12 which prescribes mandatory COVID-19 vaccination and mask requirements for police officers and other staff members.  I accept there is a factual dispute between the parties as to whether or not the Direction No. 12 applied to Ms Karen's role. 
  5. [77]
    Ms Karen has submitted that Direction No. 12 was revoked on the same day that the decision to suspend her without pay was issued.  Ms Karen appears to argue that she could not be liable for discipline if the disciplinary law did not exist, thereby challenging the exercise of the suspension powers under s 137 of the PS Act.
  6. [78]
    Ms Karen referred to the Supreme Court's impending consideration of Direction No. 12, asserting that if it is found to be invalid, her failure to get vaccinated means there would be no 'disciplinary event' triggering the exercise of the powers under s 137 of the PS Act.
  7. [79]
    As outlined above, the parties agree that Ms Karen refused to comply with Direction No. 12 and did not have a valid exemption.  Although Ms Karen has made three attempts to obtain an exemption from the VEC, those efforts have been unsuccessful to date.  I note that the VEC did approve temporary exemptions to Ms Karen, in order for her to obtain further evidence in support of her claim but that she had "not complied with the requirements of the temporary exemption as stipulated by the VEC."[111]
  8. [80]
    Ms Karen did also raise concerns with respect of the decision to suspend her on remuneration at the Hearing, saying she is "really willing to work"[112] and would "love to go to the government pool of employees and be allocated…a job somewhere else."[113] 
  9. [81]
    Section 137(1)(b) of the PS Act provides the authority to suspend an employee from duty if the Commissioner reasonably believes the staff member is liable to discipline under a disciplinary law.
  10. [82]
    Section 137(4) of the PS Act provides that an employee is entitled to normal remuneration during suspension, unless they are suspended under s 137(1)(b) and the Commissioner 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 Commissioner believes the employee is liable.
  11. [83]
    On 26 October 2021, having determined that Ms Karen failed to comply with Direction No. 12 and presented an unacceptable risk to the safety of the workplace, the Service's workforce and the community,[114] the Service issued Ms Karen with both a Suspension Notice and a Show Cause Notice as to why she should not be suspended without pay.
  12. [84]
    The Suspension Directive 16/20 sets out the requirements of the suspension process at cl 6.4.  It is agreed that the Service complied with its obligations to providing adequate time for Ms Karen to respond to the show cause notice.[115] Although Ms Karen makes an unspecified complaint that she was not afforded 'natural justice' and broadly contends the reasons provided to be insufficient.
  13. [85]
    Having considered her response, the Service determined to subsequently suspend Ms Karen without remuneration from midnight on 17 December 2021 until 13 June 2022 unless cancelled earlier.[116]
  14. [86]
    Ms Karen submitted information about her 2020-2021 Tax Return and told the Commission that she made a loss on her secondary employment last year.  Other than stressing that her QPS position was her primary source of income, Ms Karen did not outline the extent of the financial and personal impact if a stay is not granted.  Ms Karen did express her alarm at what she characterised to be speculative, outrageous and false media reports about her earnings.[117] 
  15. [87]
    Ms Karen also stated that other employees have been placed on paid suspension for months, if not years.
  16. [88]
    The Service noted that Ms Karen's suspension without pay has been effective since midnight on 17 December 2021.
  17. [89]
    The Service submitted Ms Karen is entitled to apply for payment for recreation and long service leave while on unpaid suspension.[118]  At the Hearing, Ms Karen confirmed the entirety of these accruals had recently been paid to her. 
  18. [90]
    The Service stated that Ms Karen has a current approval for secondary employment in place, that she is not excluded from seeking alternative employment whilst on unpaid suspension and "is of the view that it is incumbent on the Appellant to divulge her accurate amounts of income derived from outside employment since the suspension without pay commenced."[119] 
  19. [91]
    The Service confirmed that it would be in a position to remediate any loss of pay for the relevant period, should Ms Karen's appeal in the substantive matter succeed. However, the Service stated it would be difficult to recover excess pay from Ms Karen in the event it was successful and further noted the accompanying costs of pursuing such amounts. It also points to its obligations to consider the public interest in deciding to suspend an employee without pay, particularly where timeframes within which an appeal will be resolved are not known.[120]
  20. [92]
    In response to Ms Karen's submissions regarding decisions to allow other more senior employees to remain on paid suspension pending the finalisation of disciplinary matters, the Service submits those decisions were based on different facts and circumstances and were not related to the vaccination direction applicable to Ms Karen.[121]

Consideration – Balance of Convenience

  1. [93]
    The onus is upon Ms Karen to demonstrate a proper basis for a stay which will be fair to all the parties. 
  2. [94]
    I have read in the Notice of Suspension without Remuneration issued to Ms Karen on 14 December 2021 that she had earlier submitted as part of that process that she would not be able to pay living expenses if suspended without pay.[122]  Whilst I have no visibility as to the extent of that disadvantage post-17 December 2021 on the material before me, I do have sympathy for Ms Karen's situation and presume she will likely suffer some financial hardship if a stay is not granted. 
  3. [95]
    I acknowledge that Ms Karen's 2020-2021 Tax Return provides some information about her earnings in that earlier period; notwithstanding the relevant period of earnings for any paid work outside QPS is instead the period from midnight on 17 December 2021 – the date the suspension without pay took effect.
  4. [96]
    Fundamentally, Ms Karen's provision of her 2020 – 2021 Tax Return does not answer the question of the amount she has received for paid endeavours since midnight on 17 December 2021, nor has she described the personal impact of any refusal of her stay application noting that she has now been suspended without pay for almost two months.
  5. [97]
    I understand that Ms Karen has recently been paid her remaining annual and long service leave accrual amounts, a payment of only 1 – 2 weeks leave in its entirety. 
  6. [98]
    In the event she is successful in the appeal of the Decision and any other respective appeals, I accept the Service would be able to remediate any loss of pay suffered by her.  I accept the Service's submissions about the challenges of retrieving any excess payments made in such circumstances, the recovery costs to do so and the uncertain period of time until this matter is resolved.  All that is clear.
  7. [99]
    With respect to Ms Karen's recount of other employees subject of disciplinary matters who have remained on paid suspension, the Service has submitted that those "decisions were based on different facts and circumstances" and thus not analogous to Ms Karen's particular circumstances. 
  8. [100]
    Nor am I able to conclude the Service is using its authority to suspend without pay as a punitive or coercive measure.
  9. [101]
    In assessing the balance of convenience, I also note that there is no suggestion that the substantive appeal is impacted by the decision to award the stay application or not.
  10. [102]
    In my view, the balance of convenience does not favour the granting of this application.

Conclusion

  1. [103]
    Despite having accepted Ms Karen has an arguable case, she has not discharged the requisite onus of establishing there is a proper basis for the granting of a stay. 
  2. [104]
    I am not persuaded that I ought to exercise my discretion to grant a stay in such circumstances.
  3. [105]
    The application is dismissed.
  4. [106]
    I order accordingly.

Order

  1. The application to stay the decision being appealed is dismissed.

Footnotes

[1] Exhibit 3, Executive Briefing Note, 22 October 2021, 2 [9] – [11].

[2] Exhibit 1, Appeal Notice, Schedule A, 8 - 9, [48].

[3] Public Service Act 2008 (Qld) s 197.

[4] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[6] Exhibit 1, Appeal Notice, 4 January 2022, Part C, 4.

[7] Exhibit 3, Executive Briefing Note, 22 October 2021, 2, [12].

[8] Show Cause Notice for Suspension without Remuneration, 25 October 2021.

[9] Exhibit 2, Notice of Suspension without Remuneration, 14 December 2021, 1.

[10] Ibid 4.

[11] [2021] QIRC 380.

[12] References in original.

[13] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 ('Alexander') 694 (Kirby P, Hope and McHugh JJA).

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid 695.

[18] Ibid.

[19] Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453, [13] (Keane JA, with whom McMurdo P at [2] and White AJA at [39] agreed).

[20] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 623 (Kitto, Taylor, Menzies and Owen JJ).

[21] State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013, [12] (O'Connor DP); BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001, [8]-[10] (O'Connor VP).

[22] State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190, [10] (O'Connor VP) ('Queensland Health').

[23] T 1 - 5, lines 11 - 32.

[24] T 1 – 2, lines 41 – 45; T 1 – 3, lines 1 – 45; T 1 – 4, lines 1 – 47.

[25] T 1 – 5, line 43.

[26] T 1 – 6, line 11.

[27] Ibid 18.

[28] Ibid 13.

[29] Ibid 15.

[30] Ibid 22.

[31] Ibid 32.

[32] T 1 – 5, line 44

[33] Ibid 47; T 1 – 6, line 1.

[34] T 1 – 6, line 3.

[35] Ibid 23.

[36] Ibid 25.

[37] Exhibit 8, Email from Ms Karen to Industrial Registry, 10 February 2022.

[38] Issued on 7 September 2021.

[39] Exhibit 4, Applicant's Written Submissions, 20 January 2022, 1, a (ii).

[40] Ibid (iii).

[41] Ibid b.

[42] Exhibit 1, Appeal Notice, 4 January 2022, Attachment Schedule A, 6 [34].

[43] Exhibit 4, Applicant's Written Submissions, 20 January 2022, 1 c.

[44] Exhibit 1, Appeal Notice, 4 January 2022, Attachment Schedule A, 6 [38].

[45] Exhibit 4, Applicant's Written Submissions, 20 January 2022, 1 d.

[46] Ibid e.

[47] Ibid f.

[48] Ibid 1, 2.

[49] Exhibit 1, Appeal Notice, 4 January 2022, Attachment Schedule A, 9 [49].

[50] Exhibit 4, Applicant's Written Submissions, 20 January 2022, 1 - 3.

[51] Ibid 2, 4.

[52] Ibid.

[53] Ibid 2.

[54] Ibid.

[55] Ibid 3.

[56] Exhibit 1, Appeal Notice, 4 January 2022, Attachment Schedule A, 2.

[57] Ibid 3, [8].

[58] Ibid 3, [14].

[59] Ibid [15].

[60] Ibid 4 [16] – [18].

[61] Ibid [19].

[62] Ibid 4 - 5.

[63] Ibid 8 [48].

[64] Ibid [47].

[65] T 1 – 7, line 33.

[66] T 1 – 8, lines 1 - 7.

[67] T 1 – 7, lines 36 - 39.

[68] Ibid 43.

[69] Ibid 45.

[70] Exhibit 5, Respondent's Written Submissions, 3 February 2022, 1 [2].

[71] Ibid 2 [6].

[72] Ibid [7].

[73] Ibid [8].

[74] Colbourne v State of Queensland (Queensland Police Service) [2022] QIRC 18, [27] – [30].

[75] Exhibit 5, Respondent's Written Submissions, 3 February 2022, 2 [9].

[76] Ibid [10].

[77] Ibid [11].

[78] Ibid 3 [14].

[79] Ibid [16].

[80] Ibid [17].

[81] Ibid 3 [18].

[82] Ibid 4 [20].

[83] Ibid [21].

[84] T 1 – 9, lines 8 - 17.

[85] Ibid 8 - 20.

[86] Ibid 30 – 47; T – 10, lines 1 - 13.

[87] T 1 – 10, lines 15 – 36.

[88] T 1 – 11, lines 2 - 13.

[89] Teleconference with Ms Karen and Mr Gillespie at 4 pm on Friday 11 February 2022.

[90] [2021] QIRC 190.

[91] Ibid [30].

[92] Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116, [21]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235, [16].

[93] Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398, 404.

[94] Exhibit 1, Appeal Notice, 4 January 2022, Schedule A, [3] – [6].

[95] Ibid [14].

[96] Ibid [8].

[97] Exhibit 4, Applicant's Written Submissions, 20 January 2022, 1 [a](iii).

[98] Ibid [a](i) - (ii).

[99] Ibid [3].

[100] Exhibit 1, Appeal notice, 4 January 2022, Schedule A, 3 [15].

[101] Ibid 4, [16] – [18].

[102] Ibid [20] – [22].

[103] Exhibit 4, Applicant's written submissions, 20 January 2022, 2 [5].

[104] Exhibits 12 and 13.

[105] Exhibit 5, Respondent's Written Submissions, 3 February 2022, [6], [8].

[106] Ibid [10].

[107] Ibid [11]

[108] With the exception of the matters raised by Ms Karen with respect to obtaining documentation evidencing her exemption should be granted on both religious and medical grounds and the dispute as to whether Ms Karen is bound by Direction No. 12 at all.

[109] [2021] QIRC 439, [63] – [65].

[110] Patterson v BTR Engineering (Aust) Ltd (1989) 19 NSWLR 319, 325 (Gleeson CJ); Frigo v Culhaci [1998] NSWCA 88.

[111] Exhibit 3, Executive Briefing Note, 22 October 2021, 2 [12].

[112] T 1 – 5, line 44.

[113] Ibid 47; T 1 – 6, line 1.

[114] Exhibit 3, Executive Briefing Note, 22 October 2021.

[115] Directive 16/20 Suspension cl 6.4(a).

[116] Exhibit 2, Notice of Suspension without Remuneration, 22 October 2021, 4.

[117] Exhibit 8, Email from Ms Karen dated 10 February 2022.

[118] Exhibit 5, Respondent's Written Submissions, 3 February 2022, 3 [18].

[119] Ibid [17].

[120] Ibid [14] – [16].

[121] Ibid 4 [20].

[122] Exhibit 2, Notice of Suspension without Remuneration, 14 December 2021, 3 (iv)(b).

Close

Editorial Notes

  • Published Case Name:

    Karen v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Karen v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 38

  • 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
Alexander & Ors v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
2 citations
Jump To
Cite 1 - (1985) 2 NSWLR 685
Cite 2 - (1985) 2 NSWLR 685
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
2 citations
Jump To
Cite 1 - (1968) 118 CLR 618
Cite 2 - (1968) 118 CLR 618
BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health Queensland [2021] ICQ 1
2 citations
Jump To
Cite 1 - [2021] ICQ 1
Cite 2 - [2021] ICQ 1
Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380
2 citations
Jump To
Cite 1 - [2021] QIRC 380
Cite 2 - [2021] QIRC 380
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
2 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] 2 Qd R 453; [2008] QCA 322
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 453
Cite 2 - [2008] 2 Qd R 453
Frigo v Culhaci [1998] NSWCA 88
2 citations
Jump To
Cite 1 - [1998] NSWCA 88
Cite 2 - [1998] NSWCA 88
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235
2 citations
Jump To
Cite 1 - [2020] QIRC 235
Cite 2 - [2020] QIRC 235
Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 116
2 citations
Jump To
Cite 1 - [2018] QIRC 116
Cite 2 - [2018] QIRC 116
Ninemia Maritime Corporation v Trave GmbH & Co KG (the Niedersachsen) [1984] 1 All ER 398
2 citations
Jump To
Cite 1 - [1984] 1 All ER 398
Cite 2 - [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd (1989) 19 NSWLR 319
2 citations
Jump To
Cite 1 - (1989) 19 NSWLR 319
Cite 2 - (1989) 19 NSWLR 319
Queensland v Parer [2016] ICQ 13
2 citations
Jump To
Cite 1 - [2016] ICQ 13
Cite 2 - [2016] ICQ 13
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439
2 citations
Jump To
Cite 1 - [2021] QIRC 439
Cite 2 - [2021] QIRC 439
State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190
4 citations
Jump To
Cite 1 - [2021] QIRC 190
Cite 2 - [2021] QIRC 190
Cite 3 - [2021] QIRC 190
Cite 4 - [2021] QIRC 190

Cases Citing

Case NameFull CitationFrequency
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 873 citations
Karen v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 1912 citations
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1321 citation
1

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