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  4. Clarke v State of Queensland (Queensland Police Service) - [2022] QIRC 70

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Clarke v State of Queensland (Queensland Police Service)[2022] QIRC 70

Clarke v State of Queensland (Queensland Police Service)[2022] QIRC 70

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clarke v State of Queensland (Queensland Police Service) [2022] QIRC 70

PARTIES:

Clarke, Dhana Martine

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/415

PROCEEDING:

Public Service Appeal – appeal against a suspension without pay decision

DELIVERED ON:

8 March 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against suspension without pay decision – fair and reasonable.

LEGISLATION:

Biosecurity Act 2015 (Cth), s 60

Human Rights Act 2019 (Qld), s 17

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Police Service Administration Act 1990 (Qld), ss 4.8 and 4.9

Privacy Act 1988 (Cth), s 98

Public Service Act 2008 (Qld), ss 137, 137A and 194

Work Health and Safety Act 2011 (Qld)

Directive 16/20 Suspension, cl 6

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Ms Dhana Martine Clarke ('the Appellant') is employed by the State of Queensland (Queensland Police Service) ('the Respondent') as an Administrative Officer in the Maroochydore Criminal Investigation Branch.
  1. [2]
    By letter dated 11 November 2021, Ms Virginia A Nelson APM, Acting Assistant Commissioner, Ethical Standards Command, informed the Appellant of the decision to suspend the Appellant without remuneration, effective from midnight on 19 November 2021 until 18 May 2022, unless cancelled earlier, pursuant to s 137 of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [3]
    By appeal notice filed on 3 December 2021, the Appellant appealed against the decision, pursuant to s 194(1)(bb) of the PS Act.

Appeal principles

  1. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to suspend the Appellant without remuneration was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant legislative provision and Directives

  1. [7]
    Section 194 of the PS Act provides for decisions against which appeals may be made:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

…

  1. [8]
    Section 137 of the PS Act provides for the suspension of a public service employee:

137 Suspension

  1. (1)
    The chief executive of a department 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
  1. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  1. (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.
  1. (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
  1. (b)
    the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.

…

  1. (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
  1. (b)
    this Act; and
  1. (c)
    the directive made under section 137A.
  1. (10)
    However, natural justice is not required if the person is entitled to normal remuneration during the suspension.
  1. [9]
    Clause 6 of Directive 16/20 Suspension ('Directive 16/20') relevantly outlines the factors that must be taken into consideration in considering suspending a public service employee without remuneration:

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.

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 evidence1. 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.
  1. (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.
  1. (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.
  1. (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
  1. (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
  1. (b)
    the employee, in engaging in the employment, was not contravening:
  1. (i)
    the PS Act, or
  1. (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.

  1. [10]
    On 7 September 2021, the Commissioner of the Respondent ('the Commissioner') issued Direction No. 12 concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members ('Direction No. 12'), pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld) ('the PSA Act').
  1. [11]
    Clauses 1 to 5 of Direction No. 12 set out the reasons why the Commissioner made the direction, with respect to police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19:
  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 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.
  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. [12]
    Clause 6 of Direction No. 12 provides 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. [13]
    Clause 15 of Direction No. 12 defines the term 'frontline support staff member':

frontline support staff member means 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. [14]
    Clause 7 of Direction No. 12 provides that unless a staff member, to whom Direction No. 12 applies, is exempt under cls 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.

Background

  1. [15]
    On 21 September 2021, the Commissioner sent an email to all police officers and staff members advising that all police officers, frontline staff members and frontline support staff members to whom Direction No. 12 applies were required to provide proof to their Officer in Charge or Manager of receiving at least one COVID-19 vaccination by 4 October 2021.
  1. [16]
    On 9 October 2021, the Appellant was issued with a notice of suspension with remuneration and a notice to show cause as to whether the Appellant should be suspended without remuneration with respect to the following allegation:

…it is alleged that you have not been granted an exemption from the Direction and, therefore, you failed to comply with the Direction by failing to receive at least one dose of the vaccine by 4 October 2021 as required by clause 7(a) of the Direction and failing to provide evidence of receiving a COVID-19 vaccine when requested to do so by Senior Sergeant Craig Mansfield on 1 October 2021 as required by clause 7(c) of the Direction.

  1. [17]
    The Appellant was provided with seven days to respond to the notice to show cause.
  1. [18]
    On 15 and 20 October 2021, the Appellant provided responses to the notice to show cause and on 11 November 2021, Ms Nelson issued the Appellant with a notice of suspension without remuneration, the decision the subject of this appeal.

Grounds of Appeal

  1. [19]
    In an attachment to the appeal notice, the Appellant outlines that she believes that she has been treated unfairly in being suspended without remuneration and that this decision was unreasonable. The Appellant highlights that she first voiced her concerns and raised questions with respect to the COVID-19 vaccine on 27 September 2021 and again in her responses to the notice to show cause, to which she states no responses were provided by the Respondent.
  1. [20]
    The Appellant submits that her contract of employment or conditions of employment do not require the Appellant to 'do something that would harm' the Appellant and that the Respondent has not provided details of any indemnity that would be provided to the Appellant in circumstances where the Appellant was to be injured or die.
  1. [21]
    The Appellant further submits that she does not fall within the definition of 'frontline staff member' or 'frontline support staff member' of Directive No. 12 and that the vaccine mandate is not law.

Submissions

  1. [22]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [23]
    In summary, the Respondent submits that the decision to place the Appellant on suspension without normal remuneration for failing to comply with Direction No. 12 is fair and reasonable in that:
  1. (a)
    the decision sets out the evidence for the decision and included intelligible justification following consideration of matters raised by the Appellant, consistent with the obligations under the PS Act and Directive 16/20;
  1. (b)
    the decision outlines the ability for the Appellant to make application for payment of accrued recreation leave and long service leave entitlements accrued prior to the date of suspension without remuneration taking effect;
  1. (c)
    Direction No. 12 has clear application to staff members performing essential support duties to enable the effective delivery of frontline services;
  1. (d)
    the Appellant's 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;
  1. (e)
    with respect to the Appellant's challenge on the validity of Direction No. 12, the Respondent submits that nothing in the Appellant's submissions has substantiated any reasonable excuse for the Appellant to not comply with the lawful direction;[5]
  1. (f)
    the Appellant has been suspended without remuneration in accordance with the provisions of the PS Act and Directive 16/20 because the Appellant is liable to discipline for failing to comply with a lawful direction, namely cl 7 of Direction No. 12. The allegations against the Appellant are serious and the evidence against the Appellant that she failed to comply with the Direction No. 12 is uncontested. The Appellant was directed to provide evidence of receiving at least one dose of a COVID-19 vaccine by 4 October 2021 but did not do so. The Appellant has not sought an exemption from the requirement to comply with Direction No. 12;
  1. (g)
    the suspension of an employee under ss 137(l)(b) and 137(4) of the PS Act is on the basis that the employee is 'liable to discipline';
  1. (h)
    the decision maker has clearly set out the decision including assessing the Appellant's individual circumstances on merit and that the Appellant as a 'frontline support staff member' is equally required to abide by the directions of the employer as identified in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors ('Brasell-Dellow & Ors');[6]
  1. (i)
    natural justice has been provided and the Appellant has been given a fair hearing; and
  1. (j)
    the decision maker has provided well founded and clearly formed reasons for the decision to suspend the Appellant without remuneration. The allegations against the Appellant are serious and the evidence is compelling.

Appellant's submissions

  1. [24]
    In summary, the Appellant reiterates submissions made in the appeal notice and further submits that:
  1. (a)
    a heavy-handed approach was used and the Appellant was merely told to follow directions. At no stage was the Appellant given any evidence that would confirm that it was lawful to direct an employee to undergo an experimental medical procedure without informed consent as required under the Human Rights Act 2019 (Qld) ('the HR Act') or that the experiment had risks;
  1. (b)
    an employer owes a duty of care to the employee to ensure that the employer complies with all work health and safety legislation to protect the employee;
  1. (c)
    work health and safety requires that a control, like an inoculation, cannot be introduced into the workplace without consultation with an employee and a risk assessment done to show that the control will be safe for the employee. A control cannot be shown to have injured or killed one person;
  1. (d)
    no consultation or risk assessment has ever been done;
  1. (e)
    it is clear that despite the facts on the Therapeutic Goods Administration website that confirm the COVID-19 vaccine is not fully approved but only provisionally approved, the Appellant is being coerced into taking the experimental 'vaccine' without being given the right to give informed consent;
  1. (f)
    the Appellant is being deprived of her human right to give informed consent, pursuant to s 17(c) of the HR Act;
  1. (g)
    Directive No. 12 is inconsistent with s 17 of the HR Act, s 60 of the Biosecurity Act 2015 (Cth), s 98 of the Privacy Act 1988 (Cth) and the Work Health and Safety Act 2011 (Qld) ('WHS Act');
  1. (h)
    it is not a lawful or reasonable direction to force the Appellant to take part in an experiment and is contrary to the Appellant's right to give informed consent;
  1. (i)
    it is not a lawful direction to force the Appellant to take part in an experiment when the employer has not met the requirements of the WHS Act to ensure the Appellant's safety including consultation and risk assessment; and
  1. (j)
    it is not a lawful or reasonable direction to force the Appellant to take part in an experiment with the threat of the loss of the Appellant's job or income.

Consideration

  1. [25]
    Consideration of an appeal of this kind requires a review of the decision to suspend the Appellant without remuneration to determine if the decision was fair and reasonable in the circumstances.
  1. [26]
    There is no dispute that the Appellant was directed to provide evidence of receiving at least one does of a COVID-19 vaccine by 4 October 2021 but did not do so. The Appellant has been suspended without remuneration in accordance with ss 137(1)(b) and 137(4) of the PS Act and Directive 16/20 on the basis that the Appellant is liable for discipline.
  1. [27]
    I will first consider the Appellant's grounds of appeal before considering if the decision complied with the relevant statutory instruments, namely, the PS Act and Directive 16/20.
  1. [28]
    The Appellant submits that she had not been afforded natural justice on the basis that the determination that she should receive the vaccine was made by someone who did not know her medical history. The Appellant states in the grounds of appeal that she first voiced her concerns and raised questions with respect to the COVID-19 vaccine on 27 September 2021 and again in her responses to the notice to show cause, to which no responses were provided by the Respondent.
  1. [29]
    As outlined in cl 6.4 of Directive 16/20, natural justice is the right to be given a fair hearing and the opportunity to present ones' 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. The chief executive is required to comply with the principles of natural justice pursuant to s 137(9) of the PS Act.
  1. [30]
    The Appellant was first suspended with pay on 9 October 2021 and given notice to show cause why her suspension should not be without pay. The Appellant was given seven days to respond to the notice to show cause. The decision maker considered the Appellant's responses provided on 15 and 20 October 2021 and provided a decision outlining the reasons for the decision to suspend the Appellant without pay. I am satisfied that natural justice was afforded to the Appellant throughout this process.
  1. [31]
    I note the Appellant's submissions with respect to concerns regarding her medical history, however it appears that the Appellant did not seek an exemption as provided for in Direction No. 12.
  1. [32]
    The Appellant states in the grounds of appeal that her contract of employment or conditions of employment do not require the Appellant to 'do something that would harm them' and submits that the Respondent has not provided details of any indemnity that would be provided to the Appellant.
  1. [33]
    If the Appellant had evidence that adherence to Direction No. 12 would 'harm' her, an opportunity was available to seek an exemption from the requirement to comply with Direction No. 12. The Appellant chose not to seek an exemption and the Respondent has provided adequate reasons for the decision including the condition of employment to follow a lawful and reasonable direction. I note that a vaccine no-fault indemnity scheme is administered by the federal government, however considerations of this indemnity are not relevant to the decision under appeal.
  1. [34]
    The Appellant asserts in the grounds of appeal that she does not fall within the definition of 'frontline staff member' or 'frontline support staff member' of Direction No. 12 and that she had previously been able to work from home. The Respondent confirmed that the Appellant's role as an Administrative Officer at Maroochydore Criminal Intelligence Branch is considered a non-corporate services role that provides essential support to enable the effective delivery of an essential frontline service. The Appellant's role is one to which Direction No. 12 applies. I am satisfied the decision maker considered alternative options such as temporary transfer or another alternative working arrangement, however concluded that no other suitable working arrangements comprising duties that are not frontline support staff roles had been identified. There is no evidence before me to indicate that this conclusion was not open to the decision maker.
  1. [35]
    The Appellant's grounds of appeal include an assertion that Direction No. 12 is unlawful, submitting that Direction No. 12 is inconsistent with other legislation. The lawfulness of Direction No. 12 was upheld in a recent decision of the Full Bench of the Commission in Brasell-Dell & Ors, in which the Full Bench said:

Therefore, on a proper construction of the PSA Act as a whole, and taken in the context of the QPS being maintained as a disciplined force:

  1. within the restrictions that have been explained, the Commissioner may give a lawful direction to employees;
  1. the direction is given by the Commissioner in her capacity as the effective employer of the employees;
  1. unless there is "reasonable excuse" not to comply, the employee must comply.[7]
  1. [36]
    The Appellant made submissions with respect to the employer's duties pursuant to the relevant WHS legislation. The decision maker referred to s 4.8 of the PSA Act which provides that the Commissioner is responsible for, inter alia, the efficient and proper administration, management and functioning of the Respondent in accordance with law. The decision maker stated that this includes compliance with the 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 Respondent.
  1. [37]
    The decision maker concluded that the Appellant's alleged failure to comply with Direction No. 12 impacts the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in s 4.8 of the PSA Act and the Commissioner's obligations under the WHS Act. This was a relevant consideration as determined by Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service)[8] and, in my view, reasonable in the circumstances. 
  1. [38]
    The Appellant submits that she was being deprived of her human right to give informed consent pursuant to s 17(c) of the HR Act. The decision maker considered the Appellant's human rights and provided the reasons she considered such limits to be justified. The decision maker demonstrated consideration of the Appellant's submissions in the following paragraphs of the decision:

I consider that my decision to suspend you without remuneration may limit your right of equal access to the public service and your right to property (which might include remuneration). Because my decision enforces the Direction, it also limits human rights related to autonomy and bodily integrity, including the right not to receive medical treatment without consent and the right to privacy. Because your reason for allegedly failing to comply with the Direction is based on a conscientious belief, my decision 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 QPS employees and members of the public with whom members come into contact.
  • Your continued suspension will help to achieve that purpose because it will mean you do not present a risk of transmitting COVID-19 In the workplace.
  • Alternatives such as a temporary transfer or another alternative working arrangement have been considered. However, no other suitable alternative working arrangements comprising duties that are not frontline support staff roles have been identified.
  • 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 eh Service, its members and the broader community are also very serious. Ultimately, I consider the importance of ensuring the health and safety objective outweighs the impacts on your human rights.

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

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

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

  1. [39]
    I also note that Direction No. 12 provides the following at cl 5:

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. [40]
    I am satisfied that the decision demonstrates that the Appellant's human rights were considered and the decision maker reasonably determined that any human right that may be limited was justified in light of the seriousness of competing interests.

Compliance with statutory requirements

  1. [41]
    I have not accepted the Appellant's grounds of appeal for the reasons outlined above, however, to determine if the decision was fair and reasonable, I will now consider whether the decision maker complied with the relevant statutory requirements when making the decision. 
  1. [42]
    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. [43]
    The decision maker reached the conclusion in relation to the allegations that the Appellant failed to receive at least one dose of a COVID-19 vaccine by 4 October 2021 as required by cl 7(a) of Direction No. 12 and failed to provide evidence of receiving a COVID-19 vaccine when requested to do so as required by cl 7(c) of Direction No. 12. The Appellant did not seek an exemption from the requirement to comply with Direction No. 12.
  1. [44]
    On the basis that there is no dispute that the Appellant did not comply with Direction No. 12, it was reasonable for the decision maker to determine that the Appellant was liable to discipline under a disciplinary law.
  1. [45]
    Section 137(4)(b) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [46]
    The decision maker considered the nature of the discipline to which she believed the Appellant was liable, advising that the allegation against the Appellant was serious. The decision maker stated:

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 PSA Act and the Commissioner's obligations under the WHS Act.

  1. [47]
    Section 137(9)(a) of the PS Act provides that, in suspending a public service employee, the chief executive must comply with the principles of natural justice. I considered that natural justice had been afforded to the Appellant for the reasons outlined in [29] to [30], and I note the decision maker's consideration of the process to ensure natural justice was afforded to the Appellant:

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

  1. [48]
    Section 137(9)(c) of the PS Act provides that, in suspending a public service employee under this section, the chief executive must comply with the directive made under s 137A. The relevant directive to be complied with being Directive 16/20.
  1. [49]
    In accordance with cl 6.3 of Directive 16/20, the decision maker considered the nature of the discipline matter, as discussed above, and the public interest of the Appellant remaining on suspension with remuneration:

The Service is a publicly funded organisation with statutory financial accountability obligations, including to use public resources in a responsible and effective manner. There is also a public interest in maintaining the reputation of and the public's trust in the Service and the public service more generally, including in respect to its compliance with its financial accountability obligations. This is especially important in the current economic climate and in light of the seriousness of the allegation against you. I do not consider it to be an appropriate use of public resources, or in the public interest, for you to remain suspended with remuneration while the allegation against you remains outstanding.

  1. [50]
    I am satisfied that the decision maker complied with the requirements of both the PS Act and Directive 16/20 as demonstrated in the decision.
  1. [51]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[9] 

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

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

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[10]

  1. [52]
    Applying the principles outlined above, I do not consider that the decision to suspend the Appellant without remuneration lacks justification in the circumstances. The decision complied with the requirements of the PS Act and Directive 16/20, and based on the information before me, I am satisfied that the decision to suspend the Appellant without remuneration was fair and reasonable.
  1. [53]
    I order accordingly.

Order

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

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] citing Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, [84].

[6] Ibid.

[7] Ibid [84].

[8] [2022] QIRC 018.

[9] [2019] QSC 170.

[10] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Clarke v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Clarke v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 70

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    08 Mar 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
3 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Cite 3 - [2021] QIRC 356
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
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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