Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Blackie v State of Queensland (Queensland Police Service) - [2022] QIRC 85

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

Blackie v State of Queensland (Queensland Police Service)[2022] QIRC 85

Blackie v State of Queensland (Queensland Police Service)[2022] QIRC 85

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 085

PARTIES:

Blackie, Linda Mary

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/428

PROCEEDING:

Public Service Appeal – appeal against a suspension without pay decision

DELIVERED ON:

15 March 2022

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

Pursuant to s 562C(1)(a) of theIndustrial 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:

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

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

Public Service Act 2008 (Qld), ss 119, 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 Linda Mary Blackie ('the Appellant') is employed as a Client Service Officer, Policelink Group, Road Policing and Regional Support Command with the State of Queensland (Queensland Police Service) ('the Respondent').
  1. [2]
    By letter dated 23 November 2021, Mr Peter Brewer, Acting Assistant Commissioner, Ethical Standards Command, informed the Appellant of the decision to suspend the Appellant without remuneration, effective from midnight on 26 November 2021 until 22 May 2022, unless revoked earlier, pursuant to s 137 of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [3]
    By appeal notice filed on 15 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 ('the Directive') 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 20 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 in relation to Direction No. 12:

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 Acting Inspector David Edden on 6 October 2021 as required by clause 7(c) of the Direction.

  1. [16]
    The Appellant was provided with seven days to respond to the notice to show cause.
  1. [17]
    On 26 October 2021, the Appellant provided a response to the notice to show cause and on 23 November 2021, Mr Brewer issued the Appellant with a notice of suspension without remuneration, the decision the subject of this appeal.

Grounds of Appeal

  1. [18]
    In the appeal notice, the Appellant refers to the Respondent's Suspension and Stand Down Guideline ('the Guideline'), with specific reference to the human rights statement under the Guideline.
  1. [19]
    The Appellant contends that the Commissioner cannot prove she has achieved the outcome sought through Direction No. 12 as the Policelink facilities at Zillmere are shared with other, potentially unvaccinated, government employees not subject to Direction No. 12. Additionally, the shared facilities are not sanitised after each use and that excluding one staff member, being the Appellant, from the building will not change the 'risks' of spreading germs to other staff. As such, the Commissioner cannot achieve the 'safe workplace' as mentioned in Direction No. 12.
  1. [20]
    The Appellant further contends that she does not have face to face interactions with clients and that all interactions occur via telephone, therefore her requirement to be vaccinated does not achieve the Commissioner's objectives.
  1. [21]
    The Appellant highlights that she is aware of an unvaccinated staff member who is still working at the Policelink.

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]
    The Respondent submits the statutory power of the decision maker was to exercise their discretion to determine it was not appropriate for the Appellant to be entitled to normal remuneration during her suspension, having regard to the nature of the discipline to which the decision maker believes the Appellant is liable to, and requirements set out in the Directive. The Respondent submits the focus of the review is therefore very narrow.
  1. [24]
    The Respondent submits that the decision to place the Appellant on suspension without normal remuneration is fair and reasonable and reasonably open to the decision maker to make. The Respondent submits that:
  1. (a)
    the written decision sets out clear evidence for the decision and includes intelligible justification, consistent with the decision maker's obligations under the PS Act and the Directive;
  1. (b)
    consistent with the statutory authority under which the decision maker acted, the decision maker reasonably believes that the Appellant is liable to discipline under ch 6 of the PS Act for failing to comply Direction No. 12;
  1. (c)
    the Appellant was provided with natural justice and was given seven days' notice to show cause why she should not be suspended without pay. The Appellant made written submissions in response which the decision maker considered;
  1. (d)
    the decision maker sets out how they have considered the nature of the discipline to which they believe the Appellant is liable as part of the decision making;
  1. (e)
    the decision maker has considered the seriousness of the Appellant's alleged conduct and its ongoing nature in the context of its direct conflict with the Commissioner's ability to meet her responsibilities under the PSA Act and the Work Health and Safety Act 2011 (Qld) ('WHS Act'). The Respondent submits that this is all within the circumstances of an unprecedented declared public emergency;
  1. (f)
    the decision maker has set out in the decision how they have considered the public interest in terms of reputation and public trust in the Respondent and financial accountability obligations and balanced that against the Appellant's private interests; and
  1. (g)
    the decision maker identifies the human rights that may be limited by the decision to suspend the Appellant without pay and addresses how the decision maker considers such limitations are reasonable and justified.
  1. [25]
    The Respondent submits the Appellant's grounds of appeal are not relevant to the decision making authority afforded to the decision maker under the PS Act and the Directive. The Respondent submits that the Appellant is, in effect, challenging the validity or value of Direction No. 12 and its application to the Appellant, referring to the decision of the Full Bench of the Commission in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors ('Brasell-Dellow & Ors').[5]
  1. [26]
    In the alternative, the Respondent submits that:
  1. (a)
    the Commissioner issued Direction No. 12 to manage the risks imposed by COVID-19 in accordance with her responsibilities under the PSA Act and the WHS Act, including maintaining, as far as reasonably practicable, the health and safety of the Respondent's employees and the people the Respondent employees interact with when performing functions of the Respondent;
  1. (b)
    the building in which the Appellant works is also occupied by Smart Service Queensland. Although the Smart Service Queensland's office space is separate to Policelink, there are communal toilets, kitchens and meeting areas and is not uncommon for members of the Respondent to work in shared facilities;
  1. (c)
    risk management processes are in place to maintain a healthy workplace, including automatic doors and doors that can be opened using a persons' foot, provision of masks, hand sanitiser and sanitising wipes;
  1. (d)
    if the Appellant does come into regular contact with other potentially unvaccinated government employees undertaking duties at the building, this would only reinforce the importance of the risk management objective of Direction No. 12;
  1. (e)
    the Appellant, as a Client Service Officer, does have contact with police officers, and as an employee of Policelink, Direction No. 12 identifies her as a 'mission critical' staff member and as a frontline support staff member, to whom Direction No. 12 applies; and
  1. (f)
    as an unvaccinated employee, the Appellant would pose a risk of transmitting the virus in the workplace, which includes to her colleagues performing the mission critical Policelink function, threatening the ability of the Respondent to serve the community.
  1. [27]
    With respect to the Appellant's reference to the unvaccinated staff member still working at the building, the Respondent submits that the staff member is one of seven employees who have a matter before the Supreme Court of Queensland concerning Direction No. 12. The Respondent submits that the actions available to the Respondent in relation to the employee continuing to work from the building are limited by an order of the Supreme Court. Accordingly, it is an exceptional circumstance and the Respondent has implemented precautions to safely manage this employee's presence in the workplace.

Appellant's submissions

  1. [28]
    In summary, the substance of the Appellant's submissions appears to address the Respondent's submissions regarding risk management processes that are in place at the Appellant's workplace and the risk management objectives of Direction No. 12. The Appellant highlights that not all doors are automatic or have foot grabs and that the shared facilities of the building, including appliances in the kitchen areas are not automated.
  1. [29]
    The Appellant submits that for the Respondent to acknowledge there is a potential risk and to only partly address this risk throughout the building is futile in achieving the required result in minimising the chances of spreading germs from shared surfaces to staff.
  1. [30]
    The Appellant further refers to a home visit by Acting Inspector Edden on 25 November 2021 to discuss the Appellant's suspension without pay, submitting that:
  1. (a)
    questions were raised by the Appellant with respect to changes made at Policelink to protect staff given that there are 'potentially hundreds of unvaccinated government employees that share all of the common areas'; and
  1. (b)
    Acting Inspector Edden advised that, save for the fact that contractors that visit the building must wear a mask and are escorted around by a staff member and not allowed to go through the building on their own whilst performing repairs, 'no other changes' were made.
  1. [31]
    The Appellant submits that the action of 'nothing else' being implemented within the building shows that even though the Commissioner has stated she has an obligation to keep staff safe whilst at their workplace, nothing has been put in place to achieve this objective in the common areas at Policelink since Direction No. 12 was issued.
  1. [32]
    With respect to the unvaccinated staff member, the Appellant fails to understand how a Supreme Court order makes it safe for the staff member to work in the building. The Appellant highlights the Respondent's acknowledgment in its submissions that precautions can be put in place for safety and submits that if this can be managed successfully for one staff member, the processes in place can also be afforded to other staff members. The Appellant submits that this is discrimination and that all staff should be returned to the workplace until the Supreme Court decision is made to avoid discriminating against others.
  1. [33]
    The Appellant maintains that the Respondent has not been able to justify and demonstrate that the action taken to suspend the Appellant from the workplace has achieved the outcome of why the Appellant was suspended in the first place.
  1. [34]
    In response to the Respondent's submissions regarding an 'unprecedented declared public emergency', the Appellant made suggestions for the implementation of an 'unprecedented safety plan'.
  1. [35]
    The Appellant submits that she has been employed full time at Policelink for almost nine years and have never had any face to face contact with a police officer whilst on duty. The Appellant submits that advice is provided to clients via the telephone as per procedure to record all interactions and no face to face contact is made with the Sergeants also employed at the Policelink. The Appellant submits that the Sergeants' place of work is in the building and they do not go out to the front line and have contact with police officers on the front line.

Consideration

  1. [36]
    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. [37]
    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 the Directive on the basis that the Appellant is liable for discipline.
  1. [38]
    Before I examine whether the decision complied with the relevant statutory requirements, I will consider the Appellant's grounds of appeal. The Appellant's grounds of appeal appear to challenge the validity of Direction No. 12, rather than the specific decision to suspend her without remuneration. The lawfulness of Direction No. 12 was upheld by the Full Bench in Brasell-Dellow & Ors[6] and as an employee subject to this Direction, the Appellant was required to comply with its requirements.
  1. [39]
    The Appellant states in the grounds of appeal that the Commissioner cannot prove she has achieved the outcome sought through Direction No.12 as the Policelink facilities at Zillmere are shared with other potentially unvaccinated government employees not subject to Direction No. 12. The Appellant states that the shared facilities are not sanitised after each use, not all doors are automatic or have foot grabs on them, and her suspension will not change the 'risks' of spreading germs between staff. There is no requirement that the Commissioner 'prove' to the Appellant that she has achieved the outcome sought through Direction No. 12, and the Appellant's submission that there continue to be risks, in my view, adds weight to the reasonableness of Direction No. 12. Direction No. 12 was introduced to manage the risks imposed by COVID-19 and the Appellant's identification of other measures that could assist in managing these risks does not provide a reasonable excuse for not complying with Direction No. 12. 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)[7] and, in my view, reasonable in the circumstances.
  1. [40]
    The Appellant states in the grounds of appeal that she does not have face to face interactions with police officers on duty and therefore her requirement to be vaccinated does not achieve the Commissioner's objectives. The Respondent submits that as a Client Service Officer, the Appellant does have contact with police officers. The number of interactions between the Appellant and police officers is not a relevant consideration for the decision to suspend without remuneration, with Direction No. 12 identifying the Appellant as a mission critical staff member and a frontline support staff member to whom Direction No. 12 applies.[8]
  1. [41]
    The Appellant states in the grounds of appeal that she is aware of an unvaccinated staff member who is still working at the Policelink. This may well be the case, and there may be other staff who have obtained a vaccination exemption through the appropriate process or who are subject to a stay on the suspension process due to other legal proceedings. This does not impact on the decision to suspend the Appellant without remuneration. The circumstances of each employee are to be considered on their own facts. If the Appellant has not obtained an exemption and is not subject to a stay, there is no reasonable basis upon which the decision to suspend the Appellant without remuneration should not have been made.

Compliance with statutory requirements

  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 allegation 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 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 the Directive.
  1. [49]
    In accordance with cl 6.3 of the Directive, 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]
    The decision maker outlined the considerations given to the Appellant's human rights and provided clear reasons as to why he considered that the limits on human rights are reasonable and justified by the need to ensure compliance with Direction No. 12.
  1. [51]
    I am satisfied that the decision maker complied with the requirements of both the PS Act and the Directive as demonstrated in the decision.
  1. [52]
    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. [53]
    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 the Directive, and based on the information before me, I am satisfied that the decision to suspend the Appellant without remuneration was fair and reasonable.
  1. [54]
    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] [2021] QIRC 356.

[6] [2021] QIRC 356, [84].

[7] [2022] QIRC 018.

[8] Direction No. 12 specifically mentions staff members stationed at Policelink.

[9] [2019] QSC 170.

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

Close

Editorial Notes

  • Published Case Name:

    Blackie v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Blackie v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 85

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    15 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

Case NameFull CitationFrequency
Shield v State of Queensland (Queensland Ambulance Service) [2022] QIRC 4392 citations
Stafford v State of Queensland (Queensland Health) [2022] QIRC 3442 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.