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  4. Khan v State of Queensland (Queensland Police Service) - [2022] QIRC 55

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Khan v State of Queensland (Queensland Police Service)[2022] QIRC 55

Khan v State of Queensland (Queensland Police Service)[2022] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Khan v State of Queensland (Queensland Police Service) [2022] QIRC 55

PARTIES:

Khan, Rehana

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2021/431

PROCEEDING:

Public Service Appeal – Appeal against a suspension without pay decision

DELIVERED ON:

24 February 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDERS:

The decision appealed against is confirmed

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANCT OF THE CROWN GENERALLY – public service appeal – appellant directed by employer to receive COVID-19 vaccine – appellant refused to follow direction – decision to suspended appellant without remuneration following show cause process – whether decision to suspend without remuneration was fair and reasonable – decision maker considered all relevant factors

LEGISLATION:

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

Public Service Act 2008, s 137

Suspension Directive: 16/20

CASES:

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

Reasons for Decision

Background

  1. [1]
    Ms Khan (the Appellant) is employed by the State of Queensland (Queensland Police Service) (QPS, the Respondent) as an administration officer pay point AO3 with the Road Policing and Regional Support Command.
  1. [2]
    Instrument of Commissioner's Direction No. 12[1] ('Direction No. 12') issued on 7 September 2021 addressed mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members.  By way of background, the Direction says
  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.
  2. 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 and staff members to quarantine facilities as well as to COVID-19 broader 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 undertake 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.
  3. While it is primarily police officers who are on the front line, many staff members:
  1. a)
    have close working relationships with police officers;
  2. 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,
  3. 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.  The 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. [3]
    Relevantly, paragraph 6 of Direction No. 12 states that it applies to all staff members appointed pursuant to s 119 of the PS Act who are frontline staff members or frontline support staff members
  1. This Direction applies to:
  1. a)
    all police officers appointed pursuant to section 2.2 of the Police Service Administration Act 1990; and
  2. b)
    all staff members appointed pursuant to section 8.3(5) of the Police Service Administration Act 1990 and/or sections 110, 119, 147 and 148 of the Public Service Act 2008 who are:
  1. (i)
    frontline staff members; or
  1. (ii)
    frontline support staff members.
  1. [4]
    Paragraph 7 provides that:
  1. Unless a police officer or staff member is exempt under paragraph 8 or 9, all police officers and staff members must:
  1. a)
    receive at least one dose of a COVID-19 vaccine by 4 October 2021;
  2. b)
    receive a second dose of a COVID-19 vaccine by 24 January 2022; and
  3. c)
    provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner of Police (or delegate).
  1. [5]
    Paragraphs 8 -11 address exemption from requirements for vaccination against COVID-19.
  1. A police officer or staff member is exempt from the requirements of paragraph 7 if:
  1. a)
    the police officer or staff member is unable to be vaccinated due to a medical contraindication; and
  2. b)
    the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:
  1. (i)
    the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and
  1. (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 of paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:
  1. a)
    due to a genuine religious objection; or
  2. 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. [6]
    It appears that Ms Khan made an application for exemption and that this application was not supported.

Notice to show cause

  1. [7]
    On 18 October 2021, Ms Khan received a suspension notice and show cause notice for suspension without remuneration dated 16 October 2021 regarding the following allegation in relation to Direction No.12:

It is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7(a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Acting Inspector Donna Stewart on 13 October 2021 as required by clause 7(c) of the Direction.

  1. [8]
    Relevantly, with regard to the show cause notice, the correspondence from Virginia Nelson, Acting Assistant Commissioner, Ethical Standards Command stated:

Given the nature and seriousness of your alleged conduct, the direct conflict between the alleged conduct and the functions of the Service and the public interest in protecting the reputation of the Service, consideration is also being given to whether or not you should be suspended without remuneration pursuant to ss 137(1)(b) and (4) of the PS Act on the basis that the chief executive (or their delegate) reasonably believes you are liable to discipline under a disciplinary law.

However, no decision has been made or will be made in relation to suspension without remuneration until you have had the opportunity to formally respond.  Accordingly, you are invited to respond writing showing cause why you should not be suspended from duty without remuneration on the basis that the chief executive (or their delegate) reasonably believes you are liable to discipline under a disciplinary law.

Your response should provide any information or explanation that you believe could be relevant.  I would be particularly assisted by submissions addressing the following considerations:

  • The nature and objective seriousness of the alleged conduct;
  • Any steps you have taken to become vaccinated and provide evidence of your vaccination to your supervisor;
  • Any conflict between the alleged conflict and the functions and responsibilities of the Service;
  • Any relevant disciplinary history;
  • The likely period of time that will pass before any relevant disciplinary investigations or proceedings will conclude;
  • Your personal interests for maintaining your normal remuneration and
  • Any relevant public interest considerations, including the public interest in maintaining financial accountability and public trust and confidence in and the reputation of the Service.

The above considerations are not exhaustive and you are welcome to provide any information which you consider relevant to my determination.

…

Human rights

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

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

  • The purpose of ensuring compliance with the Direction is to protect the health and safety of Service employees and members of the public with whom members come into contact.
  • Suspending you will help you achieve that purpose because it will mean you do not present a risk of transmitting COVID-19 in the workplace.
  • Alternatives such as temporary transfer or another alternative working arrangement have been considered. However, because of the nature of your role and your location and in consideration of the safety of the workplace, the Service's workforce, and the safety of the community, suitable meaningful alternatives duties are not available.
  • It is a serious thing to place employment consequences on a person's exercise of their dignity and autonomy to make decisions about their body. However, the risks posed by COVID-19 to the Service, its members and the broader community are also very serious. Ultimately, I consider the importance of ensuring the health and safety objective outweighs the impacts on your human rights.
  1. [9]
    Ms Khan provided a response to the show cause notice on 23 October 2021.
  1. [10]
    The Respondent summarises the matters included in Ms Khan's response to the show cause notice regarding suspension without pay.[2]   I have reviewed Ms Khan's response and agree that her submissions are broadly reflected as set out by the Respondent:
  • Has a reasonable excuse for not complying with the Direction as she could not give informed consent to receiving the vaccine.
  • Outlined her concerns regarding the safety and efficacy of the current vaccines and that no proper risk assessment has been presented.
  • Advised that she is experiencing severe anxiety due to the Direction and the threat of losing her salary.
  • Stated that it would be unfair to suspend without pay for a 'breach of discipline'.
  • Listed antecedents and the effect of removing her pay.[3]

The suspension without remuneration decision

  1. [11]
    On 25 November 2021, Ms Khan received the decision subject of this appeal.  Relevantly, the decision stated

In accordance with section 137(1)(b) of the PS Act, I reasonably believe that you are liable to discipline under a disciplinary law, namely Chapter 6 of the PS Act, in relation to the above allegation.

I confirm that no adverse finding or determination has been made against you in relation to the allegation at this time.

Having considered all the material before me in accordance with section 137(4)(b) of the PS Act, I consider it is not appropriate for you to be entitled to normal remuneration during your suspension, having regard to the nature of the discipline to which I believe you are liable to, for the following reasons:

  1. (i)
    Under section 4.8 of Police Service Administration Act 1990 (PS Act) the Commissioner is responsible for (amongst other things) the efficient and proper administration, management and functioning of the Queensland Police Service (Service) in accordance with law.  Relevantly, this includes compliance with the Work Health and Safety Act 2011 (WHS Act) which provides that the Commissioner has a duty, so far as is reasonably practicable, to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service (see s. 19).
  2. (ii)
    The allegation against you is very serious and in direct conflict with the functions responsibilities and organisational values of the Service, the role and responsibilities of a  member of the Service and community expectations. Your alleged failure to comply with the Direction impacts the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in section 4.8 of the PS Act and the Commissioner's obligations under the WHS Act.
  3. (iii)
    The Service is a publicly funded organisation with statutory financial accountability obligations, including to use public resources in a responsible and effective manner.  There is also a public interest in maintaining the reputation of and the public's trust in the Service and the public service more generally, including in respect to its compliance with its financial accountability obligations.  This is especially important in the current economic climate and in light of the seriousness of the allegation against you.  I do not consider it to be an appropriate use of public resources, or in the public interest, for you to remain suspended with remuneration while the allegation against you remains outstanding.
  4. (iv)
    In relation to your response, I note in particular:
  1. (a)
    I am satisfied you have been afforded natural justice.  Relevantly, the Notice provided details of the action I was considering taking and the relevant considerations in relation to that decision and afforded you an opportunity to show cause why you should not be suspended without pay before any such decision was made.  Subsequently, you provided your response to the Notice which I have considered in making my decision regarding your suspension without remuneration.
  2. (b)
    I note your response concerning the effect a decision to suspend you without remuneration might have on your private interests, namely it would cause immediate hardship, inability to pay your rent and stop you from seeing a psychologist.  However, while I acknowledge my decision may affect your situation, I am not persuaded your private interests outweigh those of the Service and the public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally, including in respect to compliance with the Service's financial accountability obligations, particularly given the seriousness of the allegation against you.
  3. (c)
    I note your submission it is 'simply heavy handed, unfair and unreasonable to suspend without pay for a breach of discipline…', however the failure (and ongoing failure) to obey a Direction of the Commissioner is very serious and in direct conflict with the functions, responsibilities and organisational values of the Service, the functions of a member and community expectations. This is especially so, given the explicit Direction was required to be given to all members of Service in unprecedented circumstance being a public health emergency 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 an severity of disease and the reduction in neutralising antibody activity. As articulated in the Direction, in an extreme scenario, this risk could reduce the availability of police officers and staff members for deployment and threaten the ability of the Queensland Police Service to serve the community.
  4. (d)
    I note your submissions concerned the safety and efficacy of the current vaccines.  Further, that you have not been presented with a proper risk assessment. These are not issues for me to determine in the discretionary exercise I have in this matter.  However, one of the considerations I do have is to assess the strength of evidence in the allegations against you, and I find the case against you appears to be compelling.
  5. (e)
    I note you state you are 'experiencing severe anxiety…' and 'will not be able to afford…' to see a psychologist. As you were previously advised, a Senior Psychologist/Social Worker is available to all Service employees.  I encourage you to reach out for assistance through your contact officer or via the QPS internet (https:wellbeing.ourpeoplematter.com.au).
  1. (v)
    Due to the nature and seriousness of your alleged conduct I consider your continued suspension with remuneration would be inappropriate  and inconsistent with the public interest.  In order to protect the reputation of the Service and being mindful of the efficient and proper administration, management and functioning of the Service I consider it is necessary to discontinue your remuneration.  As such, I find you have not shown cause why your suspension should not be without remuneration.

In accordance with sections 137(1)(b) and 137(4) of the PS Act and the Human Resource Delegations and approval Authorities Schedule you are hereby suspended from duty without remuneration effective from midnight on 3 December 2021 until 2 June 2022, unless cancelled earlier.

Is the Appellant entitled to appeal?

  1. [12]
    Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made.  Section 194(1)(bb) provides that an appeal may be made against "a decision to suspend a public service employee without entitlement to normal remuneration under s 137 (a suspension without pay decision)".
  1. [13]
    The appeal notice was filed with the Industrial Registry 17 December 2021, within 21 days of the decision being received on 26 November 2021. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [14]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [15]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [16]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. My task in deciding this appeal is to review the decision received 26 November 2021 and decide whether that decision was fair and reasonable.[4]
  1. [17]
    Findings made by the Agency which are reasonably open to it based on the relevant materials or evidence should not be expected to be disturbed on appeal.

Legislative and Policy Framework

  1. [18]
    Suspension of a public service employee is outlined in s 137 of the PS Act:

137  Suspension

  1. (1)
    The chief executive may, by notice, suspend a person from duty if the chief executive reasonably believes –
  1. (a)
    for a public service officer – the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  1. (b)
    for a public service employee – the employee is liable to discipline under a disciplinary law
  1. (2)
    The notice must state –
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  2. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless –
  1. (a)
    the person is suspended under subsection 1(b); and
  2. (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 –
  1. (a)
    The principles of natural justice; and
  2. (b)
    this Act; and
  3. (c)
    the directive made under section 137A.
  1. [19]
    Directive:16/20 Suspension Directive (the Suspension Directive) supports the PS Act requirements relating to suspension. Clause 6 deals with suspension without remuneration.

1  Purpose

1.1  This directive:

  1. (a)
    Outlines the procedures relating to suspension
  2. (b)
    Details the periodic reviews of suspension matters
  3. (c)
    Establishes natural justice considerations, including requirements about providing reasons for the decisions about suspensions
  4. (d)
    Describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension
  5. (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.

1.2  This directive supports the Public Service Act 2008 (PS Act) requirements relating to suspensions. Suspension is an administrative action, taken for administrative necessity. It is not a disciplinary action and is not to be used as a form of punishment. Suspension should be used as a last resort after a decision maker considers all alternative duties prior to making the decision to suspend an employee.

…

  1. Principles

…

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

…

  1. 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
    2. (b)
      any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
    3. (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[5]. As part of the suspension process:

    1. (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.  
    2. (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.
    3. (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.
    4. (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.

    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:

    1. (a)
      taking into account any increase due to certified agreements or rulings made in State Wage Cases, but
    2. (b)
      less any amounts of paid leave taken by the employee during a period of suspension.

    6.8 An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.

    6.9 Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 6.7 above, unless:

    1. (a)
      the employee was engaged in the employment at the time of the suspension, and
    2. (b)
      the employee, in engaging in the employment, was not contravening:
      1. (i)
        the PS Act, or
      2. (ii)
        a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.

    6.10 If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

Ms Khan's Grounds of Appeal and Submissions

  1. [20]
    Ms Khan says that she believes the decision of 26 November 2021 to suspend her without remuneration is not fair and reasonable for the following reasons:
  1. A whistleblower from Pfizer has come out and has shown proof of documents including emails that aborted fetus has been used in their vaccine which goes against my faith and this gives me religious grounds as an exceptional circumstances for being unable to comply with the Commissioner's Direction No.12 in relation to Vaccine Mandate.
  2. I applied for exemption from compliance, and my exemption was denied.
  3. In response to my Notice of Suspension/Show Cause Notice I believe I sufficiently articulated why suspension without pay was disproportionate to the allegation made against me, and with consideration to the circumstances of the matter.  It is well known that there are a large number of officers either stood down or suspended on full pay, who have been charged with serious criminal offences.  The allegation against me (if proven) constitutes nothing more than a breach of discipline.
  4. I attempted to comply with the direction and as I had mentioned in my exemption when I consulted with my family GP who I trust when it comes to my personal health, he told me that he could not give me any information regarding the vaccine as it was on trial and he himself was not going to take it till he had enough information on it, say a year to two years.  He asked me to speak to the person who is asking me to take this vaccine, which in this case is the Commissioner as she must have the answers I need regarding this vaccine.  Up till now my concern has never been addressed and was unable to receive the vaccine due to the fact that duress and coercion applied by the Commissioner of Police precluded me from being able to give valid and informed consent to receive the vaccine.
  5. The decision places me in significant financial hardship, for an allegation that does not constitute a criminal offence and does not bring the service into disrepute.
  6. Further, the decision has caused me to suffer psychologically.
  7. Suspension without pay is not in the public interest.
  8. I am aware that my legal representative, Sibley Lawyers are challenging the validity of the vaccine mandate for Judicial Hearing and application in a Judicial Review Application to the Supreme Court of Queensland, challenging the validity of the Commissioner's decision.
  1. [21]
    In addition to her appeal notice, Ms Khan was also directed to provide further submissions following those of the Respondent.  She did so by way of a two page email received in the Registry on 2 February 2022.
  1. [22]
    Ms Khan's submissions can be characterised as addressing the following
  • Ms Khan is not comfortable with taking the vaccine;
  • Ms Khan applied for an exemption and this was not granted;
  • Ms Khan asked questions and was told they would not be answered and she was to leave the building;
  • Before the vaccines existed, officers were deployed with masks and no one caught COVID;
  • Since the vaccine, Ms Khan has heard about people getting adverse reactions and even deaths;
  • Ms Khan is entitled to a presumption of innocence;
  • Ms Khan has researched the COVID-19 vaccine;[6]
  • Ms Khan believes in natural immunity by eating well and leading a healthy organic life;
  • Taking vaccines is a choice and Ms Khan should have freedom to choose;
  • Dr Anthony Fauci is on trial for gain of function, genocide and fraud; and
  • In light of all of the facts she has put forward, Ms Khan requests that the Commission reconsider the decision about her suspension without pay.

Respondent's submissions

  1. [23]
    I directed the Respondent to file submissions in reply to Ms Khan's appeal notice on 11 January 2022 and again on 9 February 2022 which were in reply to further submissions of Ms Khan. I note portions of January submissions are repeated in those filed in February.
  1. [24]
    The Respondent submits that the decision to place Ms Khan on suspension without normal remuneration for failing to comply with Commissioner's Direction No.12 is a fair and reasonable decision.   The Respondent says that the grounds clearly set out in the notice of suspension without remuneration provide justification for the decision.
  1. [25]
    The Respondent states that it has complied with the Suspension Directive and sets out the process followed and says Ms Khan was suspended with remuneration effective 18 October 2021 and was also provided with a notice to show cause as to why a suspension without pay should not occur and provided seven days to respond to that show cause notice.
  1. [26]
    The decision maker has taken into consideration: the factors set out in the PS Act; the Suspension Directive; and Ms Khan's personal submissions in reply show cause notice.
  1. [27]
    The Respondent summarises the matters included in Ms Khan's response to the show cause notice regarding suspension without pay:[7]
  • Has a reasonable excuse for not complying with the Direction as she could not give informed consent to receiving the vaccine.
  • Outlined her concerns regarding the safety and efficacy of the current vaccines and that no proper risk assessment has been presented.
  • Advised that she is experiencing severe anxiety due to the Direction and the threat of losing her salary.
  • Stated that it would be unfair to suspend without pay for a 'breach of discipline'.
  • Listed antecedents and the effect of removing her pay.[8]
  1. [28]
    The Respondent says that the written decision of 25 November 2021 sets out the evidence for the decision and 'included intelligible justification following consideration for the matters raised by the Appellant, consistent with the decision maker's obligations under the PS Act and Directive'.[9]  The decision also outlines the ability for Ms Khan to make application for payment of any accrued recreation leave and long service leave entitlements accrued prior to the date of the suspension without remuneration taking effect.
  1. [29]
    With regard to Ms Khan's third ground of appeal on decisions to suspend other employees within the QPS on normal suspension, the Respondent says that those decisions were based on different facts and circumstances and were not related to the vaccination direction matter applicable to Ms Khan.
  1. [30]
    While Ms Khan submits the allegation 'constitutes nothing more than a breach of discipline', the Respondent says that Ms Khan appears to have failed to appreciate the nature and the seriousness of the allegation against her.  The decision of 25 November 2021 clearly outlines:

the failure (and ongoing failure) to obey a Direction of the Commissioner is very serious and in direct conflict with the functions, responsibilities, and organisational values of the Service, the functions of a member and community expectations.

  1. [31]
    With regard to Ms Khan's eighth ground of appeal where reference is made to an application for judicial review being undertaken by her representative Sibley Lawyers to challenge the validity of the Commissioner's Directive, the Respondent says that on 10 January 2022, the QPS received confirmation from Mr Jack McDonald of Sibley Lawyers that Ms Khan is not seeking to join the Judicial Review Application and as such is not a party to the Application.
  1. [32]
    With regard to Ms Khan's appeal grounds 2 and 4, the Respondent submits that Direction No. 12 has clear application to staff members performing essential support duties to enable the effective delivery of frontline services.
  1. [33]
    Ms Khan's position is Administrative Officer, Road Policing Task Force, Boondall.  The role is considered a non-corporate services role, has close working relationships with frontline police officers and provides essential support to enable the effective delivery of an essential frontline service.  The Respondent submits that nothing in Ms Khan's submission has substantiated any reasonable excuse for her not to comply with the lawful direction.[10]
  1. [34]
    The factors set out in s 137(4) and (9) of the PS Act and cl 6.3 of the Suspension Directive were considered.  The allegations against Ms Khan are serious and the evidence that she refused to comply is compelling.  Ms Khan was directed to provide evidence of receiving at least one dose of a COVID-19 vaccine by 4 October 2021 and did not do so.[11]
  1. [35]
    The Respondent submits that the decision was clearly open to the decision maker when considering the factors required to be taken into account in making the decision.  The suspension of an employee under s 137(1)(b) and 137(4) of the PS Act is on the basis that the employee is 'liable to discipline'.

Consideration

  1. [36]
    My task in this appeal is to decide if the decision to suspend Ms Khan without remuneration as fair and reasonable.  To do so, I need to consider the decision making process and the decision itself in the context of the relevant sections of the Act and the Directive.

Section s 137 of the PS Act

  1. [37]
    Section 137(4)(a) provides that a public service employ is entitled to normal remuneration during a suspension unless the person is suspended under s 137(1)(b). That section refers to the chief executive having a 'reasonable belief' that the employee is liable to discipline under a disciplinary law.
  1. [38]
    In Colebourne v State of Queensland (Queensland Police Service), Merrell DP considered the concept of reasonable belief:

When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion or belief, it require the existence of facts which are sufficient to induce that state of mind in a reasonable person.[12]

  1. [39]
    Acting Assistant Commissioner Brewer stated on page 2 of the decision, that in relation to the Allegation (see [7] above), he reasonably believed that Ms Khan was liable to discipline under a disciplinary law, namely Chapter 6 of the PS Act.
  1. [40]
    The facts of this matter demonstrate that Ms Khan had refused to comply with Direction No. 12 which required her to receive at least one dose of a COVID-19 vaccine by 4 October 2021 and to provide evidence of such.  Ms Khan's failure to do so meant that it was open to Acting Assistant Commissioner Brewer to form a reasonable belief that Ms Khan was liable to discipline under a discipline law.
  1. [41]
    Having formed a reasonable belief that Ms Khan was liable to discipline under a disciplinary law, Acting Assistant Commissioner Brewer had to turn his mind to s 137(4)(b) and decide if he considered it was '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. [42]
    Ms Khan's submissions appear to suggest that her non-compliance with Direction No. 12 is not a serious disciplinary matter and therefore the suspension without remuneration is not justified.
  1. [43]
    In contrast, the QPS submit that the disciplinary matter is serious.  I have reviewed the initial suspension notice which also represented a show cause notice for suspension without remuneration.  That notice refers to 'the nature and seriousness of the allegation against you' and the 'unacceptable risk to your colleagues, members of the public and the reputation of and public trust and confidence in the Queensland Police Service and the broader public service if you were to remain in the workplace while this matter remains outstanding'.  The letter also points out 'the direct conflict between the alleged conduct and the functions of the Service and the public interest…' and states that the chief executive 'reasonably believes you are liable to discipline under a disciplinary law'.
  1. [44]
    The relevant part of the decision letter is set out above at [11].  At sub paragraphs (i), (ii) and (iii), Acting Assistant Commissioner Brewer sets out the matters he considered in having regard to the nature of the discipline to which he believed Ms Khan was liable. I am satisfied that it was open to Acting Assistant Commissioner Brewer to determine that non-compliance with Direction No. 12 is a serious disciplinary matter.

The Directive

  1. [45]
    In making the decision, Acting Assistant Commissioner Brewer was required to comply with the considerations set out at cl 6.3 of the Suspension Directive when deciding that suspension with normal remuneration was not appropriate.
  1. [46]
    For the reasons given above, and specifically when considering sub paragraphs (i) and (ii) of the decision as set out at [11], I find that Acting Assistant Commissioner Brewer considered the nature of the discipline matter as required by cl 6.3(a) of the Suspension Directive.
  1. [47]
    There is no clear reference to 'factors not within the control of the agency that are preventing the timely conclusion of the discipline process' in the decision.  However, I note that Ms Khan's show cause response does not raise any concerns in this regard.  Given that the Direction, the conduct subject of the allegation, and the show cause process are all internal processes, I cannot find that the failure to specifically refer to cl 6.3(b) serves to make the decision not fair and reasonable.
  1. [48]
    Ms Khan does not submit that Acting Assistant Commissioner Brewer did not address the public interest in his decision. I note that the decision clearly addresses cl 6.3(c), specifically at paragraph (iii) (see [11] above).  I have given consideration to Ms Khan's submission that the suspension without remuneration is not in the public interest, however Ms Khan has not put forward any compelling arguments that would serve to make the decision not fair and reasonable.

Ms Khan's submissions

  1. [49]
    None of Ms Khan's submissions address the adequacy of the reasons provided to her or point to any procedural deficiency in the decision or a lack of compliance with the relevant parts of the Legislation and the Directive.
  1. [50]
    I find that the comprehensive reasons for decision provided to Ms Khan complied with the relevant parts of the Legislation and the Suspension Directive.  In this regard, the decision was fair and reasonable.
  1. [51]
    It appears to me that a number of Ms Khan's appeal grounds and submissions are made on the understanding that I am undertaking a 're-hearing' of the suspension decision.  That is not my role in hearing this appeal.  Ms Khan's appeal grounds regarding religious grounds; her psychological suffering; her concerns about the vaccine; and her unsuccessful application for a vaccine exemption have not been put forward in a way that seeks to demonstrate that the suspension without remuneration decision was not fair and reasonable.
  1. [52]
    With regard to Ms Khan's submissions regarding other employees or officers who have been charged with serious offences and stood down or suspended on full pay, I note that the Directive and the legislation requires each application to be considered on the basis of its own facts. I am satisfied that Ms Khan's matter has been addressed with regard to relevant considerations in the Suspension Directive.
  1. [53]
    Ms Khan submits that the allegation (if proven) against her constitutes 'nothing more than a breach of discipline'.   I understand that Ms Khan will have an opportunity to show cause regarding the allegation and at that point will be able to make any arguments regarding what she says are her valid reasons for refusing to comply with Direction No. 12.  For the reasons given above, I am satisfied that Ms Khan was provided with an explanation as to the Respondent's conclusion that the conduct was sufficiently serious to warrant suspension without remuneration.
  1. [54]
    Ms Khan submits that there is a legal challenge regarding the validity of the Commissioner's decision but does not explain why it is that this makes the suspension without remuneration decision not fair and reasonable.
  1. [55]
    I note Ms Khan's submissions regarding financial hardship.  It is clear to me that Acting Assistant Commissioner Brewer considered Ms Khan's submissions regarding financial hardship and determined that Ms Khan's private interests did not outweigh those of the Service and the public service more generally.  I also note that Ms Khan was provided with advice that it was open to her to apply for any accumulated recreation leave and long service leave. While I accept that Ms Khan may suffer financial hardship as a result of the suspension, I do not find this renders the decision unfair or unreasonable.
  1. [56]
    For the foregoing reasons, the suspension without remuneration decision was fair and reasonable.
  1. [57]
    The decision appealed against is confirmed.

Footnotes

[1] Commissioner of Police Direction – Mandatory COVID-19 Vaccination and Mask Requirements for Police Officers and Certain Staff Members, Human Rights Compatibility Statement, Katarina Carroll, Commissioner Queensland Police Service 7 September 2021.

[2] Attachment 4 to Respondent's submissions 11 January 2022.

[3] Page 2 and 3 Respondent's submissions 11 January 2022.

[4] Public Service Act 2008, s 562B(2) and (3).

[5] Salermi v MacKellar (No 2) (1977) 137 CLR; 14 ALR 1.

[6]  Ms Khan provides the following links for my information: https://thebuzz.nz>claims-nanotechnology-found-in-pfizer-jab-by-new-zealand-lab; www.orwell.city; https://www.bitchute.com>video>AKCGslfW30nj; https://phramaceuticalfraud.com/2021-12-08-andreas-noack-dead-graphene; https://www.cnbc.com>video>2019>01>23>bill-gates-and-the-return-on-investment-in-vaccinations-davos.html; https://biblescienceforum.com/2021/12/14/dr-carrie-madej-the-frankenstein-code-these-are-not-vaccines/.

[7] Attachment 4 to Respondent's submissions filed 11 January 2022.

[8] Respondent's submissions filed 11 January 2022, [6].

[9] Respondent's submissions filed 11 January 2022, [7].

[10] Respondent's submissions filed 11 January 2022, [14], [15].

[11] Respondent's submissions filed 11 January 2022, [16].

[12] [2022] QIRC 018, [28]; citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and Mc Hugh JJ).

Close

Editorial Notes

  • Published Case Name:

    Khan v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Khan v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 55

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    24 Feb 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
2 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
George v Rockett (1990) 170 CLR 104
1 citation
Jump To
Cite 1 - (1990) 170 CLR 104
George v Rockett [1990] HCA 26
1 citation
Jump To
Cite 1 - [1990] HCA 26

Cases Citing

Case NameFull CitationFrequency
Camillos v State of Queensland (Queensland Fire Department) [2025] QIRC 12 citations
1

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