Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Thomson v State of Queensland (Department of Education) - [2022] QIRC 402

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

Thomson v State of Queensland (Department of Education)[2022] QIRC 402

Thomson v State of Queensland (Department of Education)[2022] QIRC 402

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thomson v State of Queensland (Department of Education) [2022] QIRC 402

PARTIES: 

Thomson, Adam

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/645

PROCEEDING:

Appeal against a decision to suspend without remuneration

DELIVERED ON:

21 October 2022

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed.
  2. The decision of 13 June 2022 is set aside and another decision is substituted.
  3. The Appellant is returned to suspension on normal remuneration, effective from 13 June 2022.
  4. The Respondent is to reimburse the Appellant for the normal remuneration he has been deprived of from 13 June 2022.
  5. The decision maker conduct a fresh review of alternative duties that the Appellant may be allocated to perform in accordance with Directive 16/20 Suspension and the Public Service Act 2008 (Qld) and provide adequate reasons with respect of that review to the Appellant within 21 days from release of this decision. 

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a teacher – Appellant charged with offences under the Crimes (Aviation) Act 1991 and Crimes Act 1900 – Appellant suspended without remuneration pursuant to s 137(4) of the Public Service Act 2008 – Appellant subsequently acquitted of all charges – where Respondent decided to extend the suspension without remuneration – whether decision to extend suspension without remuneration is appealable –whether decision to extend suspension without remuneration was fair and reasonable – decision to extend suspension without remuneration was not fair and reasonable – decision set aside

LEGISLATION & OTHER INSTRUMENTS:

Crimes Act 1900 (ACT)

Crimes (Aviation) Act 1991 (Cth)

Human Rights Act 2019 (Qld), s 13, s 19, s 23, s 25

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

Public Service Act 2008 (Qld), s 25, s 103, s 137, s 187, s 194

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221

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

CASES:

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

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]
    Mr Adam Thomson (the Appellant) is employed by the Department of Education, State of Queensland (the Department; the Respondent) as a Senior Teacher (Instrumental Music) at Ormeau State School.
  1. [2]
    On 16 January 2020, the Respondent was notified of an allegation against the Appellant with respect to historical indecent assault of a student.
  1. [3]
    On 6 February 2020, the Appellant was advised of the decision to suspend him from duties with remuneration.
  1. [4]
    On 31 May 2020, the Appellant was charged with indecent assault of a young person under care. The matter was later referred to the Federal and Australian Capital Territory jurisdictions where the Appellant was charged with offences under the Crimes (Aviation) Act 1991 (Cth) and the Crimes Act 1900 (ACT).
  1. [5]
    On 1 June 2020, Blue Card Services suspended the Appellant's Blue Card.
  1. [6]
    On 9 June 2020, the Respondent requested the Appellant show cause for why he should not be suspended without remuneration. On 26 June 2020, the Appellant provided a response through his legal representative.
  1. [7]
    On 25 September 2020, the Respondent decided to continue the Appellant's suspension with remuneration. The suspension with remuneration was extended on 22 March 2021 and 20 August 2021.
  1. [8]
    On 26 November 2021, the Respondent again requested the Appellant show cause for why he should not be suspended without remuneration. On 6 December 2021, the Appellant provided a response through his legal representative.
  1. [9]
    On 17 December 2021, the Respondent decided to suspend the Appellant without remuneration for a period of six months.
  1. [10]
    On 24 February 2022, a verdict of 'not guilty' was reached by a jury in the Appellant's criminal trial. On 22 March 2022, the Appellant's legal representative wrote to the Respondent requesting that the Appellant's suspension be revoked accordingly.
  1. [11]
    On 13 June 2022, the Respondent advised the Appellant of the decision to continue his suspension without remuneration for a further period of six months (the Decision). The Decision was conveyed in correspondence from Ms Genevieve Gilles-Day of the Department.[1]
  1. [12]
    On 1 July 2022, the Appellant filed an Appeal Notice in the Queensland Industrial Relations Commission against the Decision.
  1. [13]
    Having regard to the submissions of the Department, there are two questions for my determination:
  • should this appeal be dismissed for want of jurisdiction? And
  • was the Decision fair and reasonable?

Should this appeal be dismissed for want of jurisdiction?

  1. [14]
    The Department submits that the Decision is not a 'suspension without pay decision' appealable under s 194(1)(bb) of the Public Service Act 2008 (Qld) (the PS Act). Rather, the Department contends the Decision "is an administrative action extending the timeframe" of the original suspension without remuneration decision. Accordingly, it is the Department's view that the appeal should be dismissed for want of jurisdiction.
  1. [15]
    This issue was recently considered by Deputy President Merrell in Baskin v State of Queensland (Department of Education) (Baskin).[2] I adopt the reasoning outlined in [20] – [39] of that decision and similarly conclude:
  • having regard to the content of the Decision, I find Ms Gilles-Day was making a decision to suspend the Appellant without remuneration for a further period of six months;
  • the Decision involved an exercise of power pursuant to s 137(4) of the PS Act in that Ms Gilles-Day considered it was not appropriate for the Appellant to be entitled to normal remuneration, having regard to the nature of the discipline to which she believes the Appellant is liable;
  • Ms Gillies-Day purported to have regard to the relevant factors required under the PS Act and Directive 16/20 Suspension (Directive 16/20);
  • the outcome conveyed in the Decision is a 'decision' because it was 'operative and determinative' and resolved the issue of fact falling for consideration – i.e., whether or not the Appellant's suspension without remuneration should continue pursuant to s 137(4) of the PS Act; and
  • the intention of the legislature is that any decision made under s 137(4) of the PS Act to suspend a public service employee without remuneration is amenable to appeal.
  1. [16]
    Further, I find that the considerations above are applicable regardless of whether the Decision resulted by virtue of an "ad hoc review of the Appellant's suspension prompted by the matters raised in the correspondence from the Appellant's legal representative" because the Decision was made just a few days prior to six months from the date of the original suspension without pay decision and warranted a decision on whether to extend or not in any event.
  1. [17]
    For those reasons, I will proceed to determine the appeal.

Appeal principles

  1. [18]
    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. [19]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at and the associated decision–making process.
  1. [20]
    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. [21]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[3]

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. [22]
    In accordance with the Directions Order issued on 6 July 2022, and as subsequently amended, the parties filed written submissions.
  1. [23]
    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. [24]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those documents. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. 

The Appellant's submissions

  1. [25]
    In the Appellant's appeal notice, the stated reasons for his appeal relevantly include:
  • the decision-maker has not complied with Directive 16/20;
  • the decision-maker does not have the authority to make the Decision;
  • the Appellant was not afforded natural justice;
  • the decision-maker has not considered reasonable alternatives; and
  • the Decision is not in the public interest.
  1. [26]
    By way of summary, the Appellant submits that the Decision was not fair and reasonable because:
  • cl 8.4(d) of Directive 16/20 requires that a decision to extend a suspension after a person has been suspended for a period of 18 months must be made by the Public Service Commission Chief Executive (CCE) after review, and by the CCE every three months thereafter – therefore, the decision-maker did not have the delegated authority to make the Decision;
  • cl 5.2 of Directive 16/20 and s 137(3) of the PS Act requires that the chief executive consider all reasonable alternatives before suspending an employee - the alternative duties do not have to form part of an established role and can be outside the employee's usual place of work;
  • cl 5.2(c) of Directive 16/20 requires the Respondent to document and provide the Appellant with the duties or other options identified and considered, including any reason why the employee could not undertake those alternative options;
  • the Decision does not adequately address the available alternative options – the Respondent has many office based positions which do not require the worker to hold a Blue Card and no reason is given for why these options have not been explored;
  • the Appellant has reapplied for his Blue Card, however this cannot be finalised until the Respondent has completed their investigation;
  • s 221(3)(d) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act) requires that disciplinary information be considered when deciding whether to issue a positive or negative notice – in effect this means that a positive notice cannot be issued before the Respondent completes the investigation and any disciplinary action against the Appellant;
  • the Appellant has been acquitted of the criminal charges and it is unlikely that his employment could reasonably be terminated;
  • there is a shortage of (particularly male) teachers in Queensland and therefore it is not in the public interest that teachers be exposed to financial ruin following acquittal of criminal allegations made against them;
  • the costs of suspension to protect children should be borne by the community, not by the teacher and their family;
  • the original suspension letter of 5 February 2020 contravened the requirements of s 137(2)(a) of the PS Act because it did not state when the suspension ends;
  • the conduct and the Decision are not compatible with human rights pursuant to ss 19, 23 and 25 of the Human Rights Act 2019 (Qld) (the HR Act);
  • the decision-maker was required to make the decision with regard to s 137 of the PS Act and was required to give the Appellant a notice of suspension;
  • the reasons given in the original suspension without remuneration decision are now negated by the acquittal of the criminal charges against the Appellant; and
  • six months have passed since the acquittal but the Department has not contacted the Appellant in relation to any investigation or disciplinary process.

The Department's submissions

  1. [27]
    By way of summary, the Department submits the Decision was fair and reasonable because:
  • in considering whether it was appropriate to suspend the Appellant without remuneration, the Respondent had regard for the nature of the discipline matter – specifically, that the Appellant had been charged with criminal offences concerning an alleged indecent assault of a student in his care;
  • the Respondent appropriately deferred any departmental disciplinary process until the conclusion of the court proceedings – the length of which was outside the control of the Respondent;
  • legal proceedings are distinct from the Department's conduct and disciplinary processes;
  • the Respondent has an obligation to ensure the efficient, responsible and accountable use of public resources pursuant so s 25(1)(e) of the PS Act and also has a responsibility to maintain public confidence in the public service;
  • it would not be in the public interest to maintain the Appellant's suspension with remuneration – this determination is supported by the seriousness and nature of the allegations, the timing and duration of the court proceedings being outside the Respondent's control and the Appellant's suspended Blue Card registration;
  • s 103 of the PS Act permits the chief executive to delegate their functions under an Act to any appropriately qualified person – the Respondent's Human Resources Delegations Manual at cl 5.5.2 provides for the delegation of the power to suspend an employee without remuneration;
  • the delegation power permits the Executive Director, Safety and Integrity, to make a decision with respect to suspension of an employee without remuneration and therefore Ms Gilles-Day had the appropriate authority;
  • the Appellant was afforded natural justice when he was given the opportunity to respond to the proposed suspension without remuneration and subsequently when he requested that the suspension be revoked;
  • due to the suspension of the Appellant's Blue Card, he was unable to be engaged to perform work in a regulated employment – further, given the nature of the alleged conduct, the Respondent was of the view that local action strategies would be ineffective to manage the potential risk to student safety as well as the safety of other staff;
  • to the extent that the Decision may limit the human rights of the Appellant, such a limitation is reasonable and demonstrably justifiable when balancing the rights of others, the need to ensure student and staff safety as well as the public interest; and
  • a suspension, investigation or disciplinary process conducted by the Respondent does not automatically prevent the issuance of a Blue Card in the way that the Appellant submits.

Was the Decision fair and reasonable?

  1. [28]
    I will firstly turn to the Appellant's argument that the decision-maker did not have the delegated authority to make the Decision. I am satisfied with the Respondent's submissions summarised at [27] and accept that the chief executive was permitted to delegate the power to suspend the Appellant without remuneration to Ms Gilles-Day as Executive Director, Safety and Integrity of the Department. The Decision is not unfair nor unreasonable by virtue of that delegated authority.
  1. [29]
    I will now consider whether the decision-maker has complied with the statutory requirements in arriving at the Decision.

Sections 137(1)(b) and (4)

  1. [30]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless:
  • the person is suspended under s 137(1)(b) of the PS Act; and
  • 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. [31]
    The point to draw from the above legislative provision is that the default position is taken to be 'suspension with pay', however it is nonetheless open to the chief executive to apply conditions other than suspension with pay if satisfied of the relevant criteria.
  1. [32]
    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.
  1. [33]
    In the Decision, Ms Gilles-Day stated:

While I confirm no finding has been made, nor will be made, in relation to the allegations associated with the criminal charges until such time as you have been afforded an opportunity to respond, I remain of the reasonable belief that you are liable to discipline under a disciplinary law in accordance with section 137(1)(b) of the Act.[4]

  1. [34]
    On the materials before me, I have been unable to identify a specific allegation put to the Appellant by the Department. In correspondence dated 26 November 2021, the Department advised the Appellant, "Further details regarding the allegations will be provided to you in due course as part of any departmental investigations." Upon review of the materials filed, I cannot identify where that has occurred. There certainly is no disciplinary finding at this stage.
  1. [35]
    Although the Respondent need only have a reasonable belief that the employee is liable to discipline under a disciplinary law, I am dissatisfied with the Department's lack of specificity – particularly noting that the Appellant had been acquitted nearly six months prior to the Decision.
  2. [36]
    The Public Service Commission's 'Discipline guideline' (the Guideline) provides:

 11. Step 1: Initial enquiries and considerations

…

11.2.  The decision maker should conduct a preliminary assessment to determine the most appropriate response. The decision maker's assessment of the appropriate response may change if/as further information becomes available.

  1. [37]
    I accept the fact the Appellant had been committed to attend trial in relation to criminal offences involving a student in his care may have been sufficient to induce in the mind of the decision-maker a reasonable belief that the Appellant is liable to discipline under a disciplinary law.[5] While it is the case that the criminal proceeding and associated standard of proof are different to the internal disciplinary investigations and proceedings conducted by the Department, there would now certainly be the benefit of further supporting findings of fact. For that reason, I am not persuaded that it continues to be reasonable for Ms Gilles-Day to assert that the nature of the discipline to which the Respondent believes the Appellant is liable remains the same following the Appellant's acquittal. That is particularly so in the absence of a specific allegation against the Appellant which ought to have been articulated soon after his acquittal, in light of the Department's then ability to recommence the disciplinary process.

Alternative working arrangements

  1. [38]
    Section 137(3) of the PS Act requires the chief executive to "consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person" before suspending the person.
  1. [39]
    Clause 5.2 of Directive 16/20 requires consideration of all reasonable alternatives, noting:
  1. (b)
    The alternative duties do not have to form part of an established role and can be outside the employee's usual place of work.
  1. (c)
    Employers are required to document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. This could include:
  1. (i)
    temporary transfer to alternative duties (either in the employee's workplace or at another workplace)
  1. (ii)
    directing the employee to work under close supervision or with another employee
  1. (iii)
    asking the employee if they wish to access accrued recreation and/or long service leave (access to accrued leave is at the discretion of the employee).
  1. [40]
    The Guideline states (emphasis added):

11. Step 1: Initial enquiries and considerations

11.3. The decision maker should:

  1. (d)
    consider whether it is necessary for the employee who is subject to the allegations to be removed from their current role on grounds of customer or worker health and safety, financial risk or public interest. Information about the consideration of suspension is set out below at section 11.8.
  1. [41]
    The Guideline encourages the retention of records demonstrating "…the alternative duties considered and the reasons they were deemed unworkable"[6] and goes on to elaborate some factors that may be considered in determining whether any alternative duties are available (emphasis added):[7] 
  1. (i)
    whether the provision of alternative duties will address any risks identified as being associated with the alleged conduct/performance issues if the employee remains in the workplace
  2. (ii)
    the employee's skill set
  3. (iii)
    the availability of duties or meaningful work required to be performed in the current or an alternative location.
  1. [42]
    I accept the Department's position that allocating the Appellant to work with children presents some risk - whilst the disciplinary process remains unresolved - and so should be avoided at this time. However, I cannot identify any clear or satisfactory consideration of reasonable alternative arrangements in the Decision.
  1. [43]
    Although I appreciate the Department's contentions regarding the expiry of the Appellant's Blue Card, associated preclusions under the WWC Act and the seriousness of the discipline for which the Department believes the Appellant is liable – in my view, fresh consideration of alternative working arrangements is required in light of the acquittal.
  1. [44]
    The Department presented submissions in this regard – however the Decision itself did not evidence proper consideration. Under Directive 16/20, it is required that the Department properly consider this factor, outline options identified and provide reasons for why the Appellant can or cannot undertake those options.
  1. [45]
    The matter of Baskin[8]  pertained to a similar decision of the Department of Education to extend an employee's suspension without remuneration. In that decision, the decision-maker noted:

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

…

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

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

  1. [46]
    The decision maker of the appealed decision in Baskin clearly considered and expressed a far more thorough evaluation of alternative arrangements. That consideration was fair and reasonable in contrast to that evidenced in the Decision subject of this appeal.
  1. [47]
    I am not satisfied the decision maker considered afresh the possibility of alternative working arrangements. In that regard, I find the Decision was unfair and reasonable.

Natural justice

  1. [48]
    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.
  1. [49]
    The Decision appropriately addressed the facts and submissions raised by the Appellant's legal representatives in correspondence dated 22 March 2022.
  1. [50]
    Notwithstanding my conclusions about the adequacy of the reasoning within the Decision, the Appellant's contentions that the decision maker failed to comply with the principles of natural justice are not borne out on the evidence before me and are rejected on that basis.

Section 137(9)(c)

  1. [51]
    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. [52]
    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. [53]
    I have already concluded above that the decision-maker did not reasonably consider the nature of the discipline matter because the Decision does not evidence reconsideration of that factor in light of the acquittal and cessation of the criminal proceeding – a relevant change in circumstances.
  1. [54]
    The Decision does not refer to any factors outside the Department's control that are preventing the timely conclusion of the discipline process, however that is not unreasonable in circumstances where a relevant factor may simply not exist. That is, now that the criminal proceeding has concluded and over six months have since passed.
  1. [55]
    I cannot identify any clear or satisfactory consideration regarding public interest of the Appellant being suspended with remuneration. In the original suspension without remuneration decision, the decision-maker held it was "significant" that the matter had been before the Courts for a lengthy period of time and that charges had been laid against the Appellant. The decision-maker had also referred to the court process being outside the Department's control and that "the public perception would agree that an employee of the department, particularly a Teacher, being charged with criminal offences involving a student, even where they are denied, is an appropriate juncture to consider suspending the employee without remuneration."
  1. [56]
    Notably, the original suspension without remuneration decision advised:

The duration of your suspension may be reviewed as new information becomes available, the court process progresses or circumstances change, and you will be advised at the relevant time of any change.[9]

  1. [57]
    In my view, it was unreasonable that the decision-maker failed to reconsider the public interest component as required under cl 6.3 of Directive 16/20 in circumstances where the court proceeding had then ceased. Further, the decision-maker ought to have taken into consideration the fact the Appellant was acquitted which, although may not affect the Department's disciplinary finding under a different standard of proof, is certainly a changed circumstance. The duration of the disciplinary process is now under the control of the Appellant and the Department. I have not been provided with any evidence that the disciplinary process has progressed since the Appellant's acquittal and the conclusion of the criminal proceeding - that is of concern.
  1. [58]
    While the fact of the court proceeding may have been an appropriate consideration in determining to suspend the Appellant without remuneration in the first instance, it necessarily requires review each time the issue of whether to extend the suspension arises. That did not occur in the Decision subject of this appeal. It ought to have occurred – and I find it to be significant to any fair and reasonable determination of whether suspension without pay continues to be the appropriate course.
  1. [59]
    For the reasons outlined above, I find it was unreasonable that the decision-maker did not adequately address the changed circumstances and its potential impact on the public interest consideration.

Finding

  1. [60]
    For the reasons outlined above, I find the Department complied with some of the statutory requirements but not others. Therefore, I have identified some elements that render the Decision unfair and unreasonable.

What decisions can the Commission make?

  1. [61]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • 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
  • set the decision aside and substitute another decision.
  1. [62]
    For the reasons detailed above, I have found that the Decision was not fair and reasonable. On that basis, I will set the Decision aside and I will substitute another decision for the reasons that follow.

Substitute another decision

  1. [63]
    For the reasons that follow, I have determined that the Appellant be returned to suspension on normal remuneration effective from the date of the Decision:
  • I have considered the serious nature of the allegation made against the Appellant. However, I note the Appellant has been acquitted by a jury in the criminal proceeding;
  • it does not appear, on the materials before me, that the Department's internal investigations have progressed since the acquittal – that is something that ought to be in the control of the Department;
  • the Appellant has gained extensive professional and institutional knowledge during his service and the Department has failed to evidence consideration of any alternative duties or meaningful work available for the Appellant to perform, that may utilise either the knowledge or other 'transferable skills' honed over that time;
  • the financial impact of the Decision is significant with the Appellant indicating he could be subject to financial ruin;
  • the Department did not reconsider financial impacts on the Appellant in the Decision, however in the original suspension without remuneration decision, Ms Gilles-Day provided:

I acknowledge your submissions regarding the likely impact my decision will have on you and your family… however this is not the only factor which I must take into consideration… In considering your submissions, I must also balance the seriousness of the matter, and the public interest in continuing your remuneration where the length of time the criminal process takes it (sic) outside the department's control. There are certain circumstances in (sic) these considerations outweigh that personal financial impact. I consider this matter to be on such circumstance.

This is a foundational point of difference between the Department's rationale of what is 'fair and reasonable' and my own.  Fairness and reasonability dictate that, in this instance, greater weight should be placed on the 'financial impact' of any decision to suspend the Appellant without pay.  In the Appellant's current circumstances – where he has presumably spent money on legal representation for a proceeding in which he was ultimately acquitted – this is particularly significant;

  • my judgement of what is 'fair and reasonable' in this case is also informed by the fact that the formal charges laid against the Appellant were tested in the District Court of Queensland and a verdict of not guilty was determined by the jury;
  • the Department's requirement to manage public resources efficiently may in fact inspire deeper exploration of alternative duties or meaningful work that the Appellant may be deployed to undertake, to yield some return on the wages paid to him in the coming period; and
  • the original suspension without pay decision asserted:

…the public perception would agree that an employee of the department, particularly a Teacher, being charged with criminal offences involving a student, even where they are denied, is an appropriate juncture to consider suspending the employee without remuneration.

In a scenario where an employee was already found to have engaged in the conduct that is subject of the allegation, this factor would demand heightened significance.  However, that is not what has happened here. The criminal proceedings have resulted in a verdict of 'not guilty'. Given the severe financial impact on the Appellant's family, the most fair and reasonable course is to recommence payment of normal remuneration.

Conclusion

  1. [64]
    In summary, I find that the Decision to continue suspending the Appellant without remuneration did not come about through a fair, reasonable and fulsome consideration of the relevant criteria. 
  1. [65]
    The criminal proceeding has now ceased which provides greater visibility of the likely timeframes inherent in the internal proceeding because it is largely in control of the Department and the Appellant who has expressed a keen willingness to conclude the matter. 
  1. [66]
    Although the Appellant sought reimbursement for the wages he has already been deprived of, the Commission's jurisdiction in a proceeding of this type is limited to the Decision subject of the appeal, that is the Decision of 13 June 2022.
  1. [67]
    Notwithstanding, I note Directive 16/20 provides:

6.6  An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment.

6.7  The amount to be reimbursed is the employee’s normal remuneration at the date of suspension without pay for the period the employee was suspended:

(a)  taking into account any increase due to certified agreements or rulings made in State Wage Cases, but

(b)  less any amounts of paid leave taken by the employee during a period of suspension.

  1. [68]
    It is open to the Appellant to pursue reimbursement of the wages he has been deprived of whilst suspended without pay before 13 June 2022, should the Department's eventual decision on discipline not result in the termination of the Appellant's employment.
  1. [69]
    In light of all the circumstances, I have found that the Decision to suspend the Appellant without pay is not fair and reasonable.  That does not disturb the original decision to suspend the Appellant, only that such suspension is to continue on normal remuneration effective from 13 June 2022.
  1. [70]
    I order accordingly.

Orders:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed.
  2. The decision of 13 June 2022 is set aside and another decision is substituted.
  3. The Appellant is returned to suspension on normal remuneration, effective from 13 June 2022.
  4. The Respondent is to reimburse the Appellant for the normal remuneration he has been deprived of from 13 June 2022.
  5. The decision maker conduct a fresh review of alternative duties that the Appellant may be allocated to perform in accordance with Directive 16/20 Suspension and the Public Service Act 2008 (Qld) and provide adequate reasons with respect of that review to the Appellant within 21 days from release of this decision. 

Footnotes

[1] Executive Director, Safety and Integrity, Human Resources.

[2] [2022] QIRC 349.

[3] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[4] Letter from Ms G. Gilles-Day to the Appellant, 13 June 2022.

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

[6] Public Service Commission, Commission Chief Executive Guideline 01/17: Discipline, cl 11.8(a).

[7] Ibid cl 11.8(b).

[8] [2022] QIRC 349.

[9] Letter from Ms G. Gilles-Day to the Appellant, 17 December 2021.

Close

Editorial Notes

  • Published Case Name:

    Thomson v State of Queensland (Department of Education)

  • Shortened Case Name:

    Thomson v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 402

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    21 Oct 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
Baskin v State of Queensland (Department of Education) [2022] QIRC 349
3 citations
Jump To
Cite 1 - [2022] QIRC 349
Cite 2 - [2022] QIRC 349
Cite 3 - [2022] QIRC 349
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
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
AB v State of Queensland (Department of Education) [2024] QIRC 492 citations
Bah v State of Queensland (Queensland Health) [2025] QIRC 963 citations
Colebrook v State of Queensland (Queensland Health) [2025] QIRC 532 citations
Philp v State of Queensland (Department of Education) [2023] QIRC 2191 citation
Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3342 citations
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.