Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2023] QIRC 126Hartigan DP
Add to List

Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2023] QIRC 126

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 126
PARTIES:	Power, Amanda (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent)
CASE NO:	PSA/2022/976
PROCEEDING:	Public Sector Appeal – Appeal against a suspension without pay decision
DELIVERED ON:	9 May 2023
MEMBER:	Hartigan DP
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 SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a suspension without pay decision – appellant charged with offences under Criminal Code Act 1899 – appellant suspended without normal remuneration – where appellant submits that decision is not fair and reasonable – where appellant submits she was denied natural justice – where respondent formed a reasonable belief that the appellant is liable to discipline under a disciplinary law – where it was open on the material for the decision maker to form a reasonable belief that the appellant was liable to discipline under a disciplinary law – where appellant was not denied natural justice – decision fair and reasonable – decision appealed against confirmed.
LEGISLATION:	Suspension Directive 06/23 Industrial Relations Act 2016 (Qld), s 562 Public Service Act 2008 (Qld) s 137, s 181 and s 187 Public Sector Act 2022 (Qld) s 91, s 73 and s 101
CASES:	Bird v British Celanese Ltd [1945] 1 KB 336 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). BR v State of Queensland (No.2) [2022] QIRC 154 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Reasons for Decision

Introduction

[1]
Ms Amanda Power is employed as a Detention Youth Worker at the Cleveland Youth Detention Centre within the Department of Children, Youth Justice and Multicultural Affairs ('the Department').

[2]
Ms Power commenced employment with the Department in July 2022.

[3]
On 21 September 2022, Ms Power was charged with nine indictable offences of fraud.

[4]
Eight of the alleged offences occurred in a private capacity between 1 August 2012 and 9 November 2019, and the ninth offence relates to Ms Power's previous employment.

[5]
On 23 September 2022, Ms Power advised the Department that she had been charged with one count of fraud.

[6]
Following receipt of this information, the Department issued Ms Power with a notice of suspension on normal remuneration pursuant to s 137(1) of the Public Service Act 2008 (Qld) and a show cause notice for suspension without remuneration, on the basis that the Department held a reasonable belief that Ms Power is liable to disciplinary action pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld).^[1]

[7]
On 4 October 2022, Ms Power provided a response to the show cause letter.

[8]
By letter dated 14 October 2022, the Department determined to suspend Ms Power without normal remuneration^[2] on the basis that, having regard to the nature of the discipline to which Ms Power is liable, it is not appropriate that she be paid normal remuneration during the period of her suspension ('the decision').

[9]
On 27 October 2022, Ms Power sent further correspondence to the Department stating that the decision was ''harsh and that it would have a detrimental impact'' on her.

[10]
By notice of appeal filed in the Industrial Registry on 4 November 2022, Ms Power appeals the decision, and relies on the following grounds in support of her appeal, as relevantly summarised:

(1)
that the decision to suspend Ms Power without remuneration will have ''a detrimental impact'' on her family, as she will likely incur significant legal costs in the course of the criminal proceedings;

(2)
that Ms Power has not been afforded the presumption of innocence; and

(3)
that the Department did not have regard to alternative employment arrangements before suspending Ms Power without remuneration;

[11]
The appeal is made pursuant to s 134 of the Public Sector Act 2022 (Qld) ('PS Act') which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the Industrial Relations Act 2016 (Qld) ('IR Act') by the Queensland Industrial Relations Commission.

[12]
Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.

[13]
I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.^[3] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.^[4]

[14]
For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

[15]
In the decision, the decision maker advised the Appellant that she was to be suspended from duty without normal remuneration and provided the following reasons in support of the decision:

…

I have fully and carefully considered all the evidence available to me, including your response of 4 October 2022. My decision regarding suspension without remuneration is outlined below.

In determining whether your suspension should be without remuneration, I have considered the following:

Your intention to plead not guilty to the charges against you.
The mitigating circumstances you outlined, including –

the lack of leave available to you due to being a new employee
you are the sole income earner for you and your partner
if you were to be suspended without remuneration you would be required to apply for Centrelink assistance, which likely wouldn't cover your financial responsibilities
at the finalisation of your court matters, you intend to return to your role as a DYW at CYDC.
your intention to plead not guilty should provide you the presumption of innocence until the charges are proven

Your request for your suspension from duty to be with full remuneration until a decision is made by a Magistrate.
There is no reasonable alternative to suspending you from duty, as outlined below.

In accordance with section 137(3) of the PS Act, I have considered whether there are any reasonable alternatives to suspending you from duty including alternative duties, a temporary transfer to a Youth Justice Service Centre or another alternative working arrangement, such as directing you to work under close supervision or with another employee or asking you if you wish to access accrued recreation and/or long service leave. In considering this, I have undertaken an assessment of the allegations and your role within the department and whether your continuation in the role or another role presents any potential risk to the department or others.

In my view having regard to the nature of the allegations against you and having carefully considered your role as a DYW there is an unacceptable risk to the department if you were to remain in the workplace at this time.

The continued performance of work duties whilst allegations of this nature and seriousness are on foot, and where the public could expect to find public servants of the highest standards of conduct, is inappropriate. I have also considered the serious nature of your alleged inappropriate conduct and the alleged breach of trust related to these matters.

Finally, I need to consider the appropriate use of public monies in my decision. This matter will now progress through the justice system and the department will have no control over the length of time your court process will take to complete.

Accordingly, pursuant to section 137(4) of the PS Act, I have decided to suspend you from duty without remuneration, effective from 14 October 2022 to 14 January 2023. Prior to 14 January 2023, your suspension without remuneration will be reviewed afresh.

You may request to access payment from your personal leave balances. At the cessation of any period of leave, you will revert to suspension without remuneration. Please be aware that accessing payment for leave entitlements does not pause, delay or revoke the suspension from duty.

…

Relevant legislation

[16]
Section 131 of the PS Act provides for decisions against which appeals may be made as follows:

131 Decisions against which appeals may be made

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

…

(f)
a suspension without pay decision;

…

[17]
Section 101 of the PS Act provides for the suspension of a public service employee as follows:

101 Suspension

(1)
A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—

(a)
the employee is liable to discipline under a disciplinary law; or
(b)
the proper and efficient management of the entity might be prejudiced if the employee is not suspended.

(2)
The notice must state—

(a)
when the suspension starts and ends; and
(b)
whether the employee is entitled to remuneration for the period of the suspension; and
(c)
the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.

(3)
However, before suspending the officer, the chief executive must consider all reasonable alternative duties available to the employee.

Examples of reasonable alternatives which may be available to the

employee—

• alternative duties

• a change in the location where the employee performs duties

• another alternative working arrangement

(4)
The employee is entitled to normal remuneration for the period of the suspension, unless—

(a)
The employee is suspended under subsection (1)(a); and

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

(5)
If the employee is entitled to normal remuneration for the period of the suspension, any amount earned by the employee from engaging in alternative employment during the period of the suspension must be deducted from the employee’s normal remuneration, unless—

(a)
the employee was engaged in the employment at the time of the suspension; and

(b)
the employee, in engaging in the employment, was not contravening—

(i)
this Act; or

(ii)
a standard of conduct applying to the employee under an approved code of conduct or approved standard of practice under the Public Sector Ethics Act 1994.

(7)
The deduction under subsection (5) must not be more than the amount of the employee’s normal remuneration during the period of the suspension.

(8)
The continuity of the employee’s service as a public service officer is taken not to have been broken only because of the suspension.

(9)
suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.

(10)
Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.

…

[18]
Suspension (Directive 16/20) ('Directive 16/20') commenced operation on 25 September 2020. Suspension Directive 06/23 ('Directive 06/23') became operative on 1 March 2023 and supersedes Directive 16/20.

[19]
Directive 06/23 amongst other things, describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during a period of suspension.

[20]
Clause 7 of Directive 06/23 provides for suspension of a person from duty in the following terms:

7. Procedural matters relating to suspension

7.1 A chief executive of a public sector entity may suspend an employee as provided for under section 101 of the Act.

7.2 In accordance with the requirements under section 101(2) of the Act, a suspension notice must state an end date, or express the period of the suspension in terms of a specified number of weeks or months. It is not sufficient to state that suspension will end by reference to events, such as ‘until this disciplinary process is finalised’, or to state that the suspension will continue 'until otherwise determined’. A suspension notice advising of suspension without remuneration must also include information on the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act), and the directive relating to appeals.

7.3 When considering all reasonable alternatives as provided for at section 101(3) of the Act:

a.the individual circumstances and facts of the matter must be assessed on their own merits to determine whether there are reasonable alternatives available to the employee, and whether it would be reasonable to direct the employee to undertake those alternative arrangements, or whether it is appropriate to suspend the employee
b.alternative duties do not have to form part of an established role and can be outside the employee’s usual place of work
c.employers must document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options.

7.4 Entities must have ongoing and clear communication with the employee, both throughout the suspension process and immediately before returning to work. This will assist in clarifying the employer’s expectations for the employee and help in the situation where an employee needs to be reintegrated into the workplace. An appropriate contact person may be assigned to perform this function.

7.5 The employee should also be offered support on an ongoing basis whilst on suspension. For example, referral to an employee assistance program, participation in a mentoring process with a third party, or other invitations to access support.

…

[21]
Clause 8 of Directive 06/23 provides for suspension of an employee from duty without remuneration in the following terms:

8. Suspension without remuneration

8.1 A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

8.2 Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:

there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or

It is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.

…

Whether the decision was fair and reasonable

[22]
In this appeal, I must determine whether the decision to suspend Ms Power from duties without normal remuneration was fair and reasonable.

[23]
The Department submits that after considering the evidence available, it was open to the decision maker to hold a reasonable belief that if Ms Power were to be found guilty of the criminal charges, Ms Power may be liable to discipline for misconduct in a private capacity within the meaning of ss 187(1)(b) and 187(4)(b) of the Public Service Act 2008 (Qld). As the Department determined that Ms Power may be liable to discipline under a disciplinary law, it submits that, in the circumstances of Ms Power's matter, it was not appropriate for Ms Power to receive normal remuneration while on suspension.^[5]

[24]
Ms Power's submissions in relation to the appeal have been categorised as follows:

(a)
financial detriment ('Ground one');

(b)
presumption of innocence ('Ground two'); and

[25]
I will determine the appeal on the grounds referred to above.

Ground one

[26]
Ms Power relies on the financial impact of suspension without remuneration as a ground to argue that the decision was not fair and reasonable. In her submission, Ms Power contends that the Department did not properly consider the financial impact the decision would have on her, especially considering that Ms Power does not have another job and that it is likely that she will incur significant legal costs in the course of the criminal proceedings. Further to this, Ms Power submits that the decision to suspend her without remuneration would put both herself and her family in ''financial hardship''.

[27]
Further, Ms Power submits that she will likely have a difficult time finding alternative employment due to the ''significant media exposure her matters have garnered in her local community''.

[28]
The Department submits that it is not in dispute that the decision will have a financial impact on Ms Power and her family, however, considering the serious nature of the allegations against Ms Power, the Department contends that the decision is demonstrably justified.

[29]
In consideration of the public interest, the Department submits that the offences, with which Ms Power has been charged, may ''seriously diminish the public's confidence in the Department'' if Ms Power were to remain on suspension with normal remuneration and were subsequently found to be guilty of the charges. Further to this, the Department submits that the decision maker considered that it would not be an appropriate use of public monies for Ms Power to remain on suspension with remuneration until the criminal proceedings had concluded.

[30]
I note that the decision maker did have regard to the financial impact the decision would have on Ms Power, including that she was the sole income earner for her and her partner.

[31]
There is no doubt that Ms Power will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, the decision to suspend Ms Power without normal remuneration must be considered in the context of all the relevant circumstances of the matter.^[6] Those circumstances include that Ms Power intends to plead not guilty to the charges and will defend the matter should it proceed to trial. The decision maker noted this and concluded that it would not be an appropriate use of public monies to suspend Ms Power on remuneration whilst her criminal proceedings proceeded through the justice system. The decision maker noted that such progress was outside the control of the Department. I consider that this conclusion was available to be made on the information before the decision maker and was not unreasonable.

[32]
Further, whilst I note that the decision is one that suspends Ms Power from her employment, there is no preclusion for Ms Power to obtain alternative employment subject to Ms Power informing the Department of that as set out in the Department's correspondence of 30 September 2022.

[33]
Accordingly, I consider that the decision did have regard to the financial detriment of the decision to suspend without remuneration, and I am further satisfied that the decision was made having regard to the context of all the relevant circumstances of the matter. I do not consider that ground one of the appeal establishes that the decision was not fair and reasonable.

Ground two

[34]
Ms Power submits that the Department has ''determined to impose a type of punishment'' or ''sanction'' against her even though there has been no determination that she is guilty of the criminal conduct alleged. In her submission, Ms Power contends that the decision to suspend her from duty without remuneration is ''a prima facie, pre-determined declaration of guilt''. Ms Power relies on Bird v British Celanese Ltd ^[7] in this regard.

[35]
Ms Power notes in her submissions that the appeal is analogous to Fischer v State of Queensland (Department of Communities, Disability Services and Seniors)^[8] where McClennan IC held that a decision to suspend the Appellant without remuneration was not fair and reasonable.

[36]
Despite Ms Power's contentions, the decision does not contain ''a prima facie, pre- determined declaration of guilt''. Relevantly, the decision has regard to the nature of the charges that Ms Power intends to plead not guilty to, and that it is likely that the progress of the criminal justice process will be outside of the control of the Department.

[37]
Relevantly, rather than any finding being made by the decision maker, the decision maker asked Ms Power to show cause with respect to the allegation that was put to her. In doing so, I consider that there was a factual basis for the decision maker to conclude that Ms Power was liable to discipline but that is a distinct and separate concept to there being a determination of guilt.

[38]
As I have previously noted in BR v the State of Queensland (No 2 )^[9]:

''a determination that the Appellant is 'liable to discipline under a disciplinary law' is distinct from a determination that the Appellant is guilty of the alleged offences. The decision does not seek to interfere with the Appellant's right to be presumed innocent until proven guilty according to law''.^[10]

[39]
Further:

''relevantly, s 137(1)(b) of the PS Act refers to the chief executive holding a 'reasonable belief' that the employee is liable to discipline under a disciplinary law. The power to suspend arises when there is a reasonable belief that a breach of a disciplinary law may have occurred. That provision does not require any positive finding that circumstances exist that assume disciplinary action will be taken. The facts referred to by the decision maker that informed the reasonable belief that the Appellant is liable to discipline under a disciplinary law include the criminal offences with which the Appellant has been charged and the Appellant's responses provided during the course of the show cause process''.^[11]

[40]
Those passages are equally relevant to this matter. There is no evidence to suggest that the decision equated to a finding of guilt. I do not consider that ground two to the appeal establishes that the decision was not fair and reasonable.

Ground three

[41]
Ms Power submits that the Department could have reasonably facilitated alternative working arrangements rather than deciding to suspend her from duty without remuneration. Ms Power relies on this as a ground to argue that the decision was not fair or reasonable.

[42]
Relevantly, however, the decision to suspend Ms Power from her employment was made by the Department on 30 September 2022. That is not the decision Ms Power appeals. The decision Ms Power appeals is the decision to suspend her without remuneration dated 14 October 2022. It is the decision of 30 September 2022 that relevantly sets out the reasons why the Department determined that alternative duties were not appropriate and that Ms Power should be suspended from her employment. Whilst the earlier reasons for the decision to suspend were referred to in the decision, they do not form part of the determination to suspend Ms Power without normal remuneration.

[43]
For this reason, I consider that ground three does not establish that the decision subject of this appeal was not fair and reasonable.

Other matters raised by the parties

[44]
The Department notes that s 181 of the Public Service Act 2008 (Qld) requires employees to notify the Department if they have been charged with or convicted of an indictable offence.^[12] In notifying the Department, an employee is required to complete a ''notification of charge/conviction of an indictable offence form'' ('the form'). In its submissions, the Department submits that when required to disclose the details of an indictable offence, Ms Power only disclosed one charge of fraud instead of nine. The Department submits that the failure to disclose all charges amounts to dishonesty.

[45]
I do not consider that it is relevant and, consequently, it is not necessary for me to consider the alleged failure by Ms Power to disclose the number of charges. Such a matter did not form the basis for the decision nor does it appear the decision maker had regard to it within the reasons for the decision. For these reasons, I will not consider this matter within the context of this appeal.

Order

[46]
Accordingly, I make the following order:

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

Footnotes

[1] Sections 137(1)(a) and 181(1)(b) of the Public Service Act 2008 (Qld) is in the same terms as s 101(1)(a) and s 91(1)(b) of the Public Sector Act 2022 (Qld), respectively.

[2] Public Sector Act 2022 (Qld), s 101(4)(b).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] Sections 187(1)(b) and 187(4)(b) of the Public Service Act 2008 (Qld) are in the same terms as ss 91(1)(b) and 94(5)(b) of the Public Sector Act 2022 (Qld), respectively.

[6] See Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [47].

[7] [1945] 1 KB 336.

[8] PSA/2020/54.

[9] [2022] QIRC 154.

[10] Ibid [36].

[11] Ibid [39].

[12] Section 181 of the Public Service Act 2008 (Qld) is in the same terms as s 73 of the Public Sector Act 2022 (Qld).

Editorial Notes

Published Case Name:
Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
Shortened Case Name:
Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
MNC:
[2023] QIRC 126
Court:
QIRC
Judge(s):
Hartigan DP
Date:
09 May 2023

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bird v British Celanese Ltd.	View on:ICLRUK[1945] 1 KB 336	2 citations Jump To Cite 1 - [1945] 1 KB 336 Cite 2 - [1945] 1 KB 336
BR v State of Queensland (No. 2)	[2022] QIRC 154	4 citations Jump To Cite 1 - [2022] QIRC 154 Cite 2 - [2022] QIRC 154 Cite 3 - [2022] QIRC 154 Cite 4 - [2022] QIRC 154
Brandy v Human Rights & Equal Opportunity Commission	View on:JADE(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	View on:JADE[1995] HCA 10	2 citations Jump To Cite 1 - [1995] HCA 10 Cite 2 - [1995] HCA 10
Goodall v State of Queensland	[2018] QSC 319	2 citations Jump To Cite 1 - [2018] QSC 319 Cite 2 - [2018] QSC 319
Tilley v State of Queensland (Queensland Health)	[2022] QIRC 2	1 citation Jump To Cite 1 - [2022] QIRC 2

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2023] QIRC 126