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  4. Mathewson v State of Queensland (Department of Education) - [2023] QIRC 237

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Mathewson v State of Queensland (Department of Education)[2023] QIRC 237

Mathewson v State of Queensland (Department of Education)[2023] QIRC 237

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mathewson v State of Queensland (Department of Education) [2023] QIRC 237

PARTIES:

Mathewson, David Rodney

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/1007

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

22 August 2023

MEMBER:

Power IC

HEARING DATE:

16 February 2023

HEARD AT:

Brisbane

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 – appeal against suspension without remuneration decision – appellant charged with offences  – appellant suspended without normal remuneration – where respondent formed a reasonable belief that the appellant is liable to discipline under a disciplinary law – where it was open on the material before the decision maker  to form a reasonable belief that the appellant was liable to discipline under a disciplinary law – decision fair and reasonable – decision appealed against confirmed.

LEGISLATION:

Human Rights Act 2019 (Qld), s 32

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

Public Service Act 2008 (Qld), s 137

Public Sector Act 2022 (Qld), ss 101 and 324

CASES:

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

BR v State of Queensland (No 2) [2022] QIRC 154

George v Rockett (1990) 170 CLR 104

Gilmour v Waddell & Ors [2019] QSC 170

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

APPEARANCES:

Mr D. Mathewson as self-represented.

Ms  K. O'Connor for the Department of Education

Reasons for Decision

Introduction

  1. [1]
    Mr David Rodney Mathewson ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as a Senior Teacher.
  1. [2]
    On 14 June 2022, the Appellant was charged with the following:

…three x Indecent Treatment of a Child Under 16 and one x Grooming Child Under 16 Years or Parent or Carer of Child Under 16 Years – Facilitate Procurement of Child to Engage in Sexual Act ('the Charges').

  1. [3]
    The Appellant disputes all charges and has entered a not guilty plea.
  1. [4]
    On 15 June 2022, the Queensland College of Teachers ('the QCT') suspended the Appellant's registration and referred the matter to the Queensland Civil and Administrative Tribunal ('QCAT').
  1. [5]
    On 1 July 2022, QCAT continued the suspension of the Appellant's registration and made a non-publication order.
  1. [6]
    On 7 July 2022, the Appellant was suspended from duty on normal remuneration.
  1. [7]
    On 17 October 2022, Ms Rachel Borger ('the decision maker'), Executive Director, Integrity and Enterprise Bargaining invited the Appellant to show cause as to why she should not suspend the Appellant without entitlement to normal remuneration due to the following:
  1. The nature and the seriousness of the matter you have been charged with;
  2. The ongoing court proceedings against you, which will delay the Department's investigation process and any possible disciplinary process in relation to this matter;
  3. The suspension of your teacher registration by QCT;
  4. The Department's obligation to ensure the effective, efficient, economical and appropriate use of public resources, including the effect upon Departmental finances while continuing your suspension with remuneration;
  5. The perception of the public regarding:
    1. your ongoing remuneration during the period of your suspension in the above circumstances; and
    2. the nature and seriousness of the offences that are the subject of the court proceedings against you.
  1. [8]
    On 1 November 2022, the Respondent received a response to the Show Cause Notice from the Appellant.
  1. [9]
    By letter on 15 November 2022 ('the Decision'), the Respondent advised the Appellant of its decision to suspend the Appellant without normal remuneration.
  1. [10]
    On 16 November 2022, the charges were transferred to the Cairns District Court.
  1. [11]
    On 5 December 2022, the Appellant filed an appeal against the Decision in the Industrial Registry.[1]
  1. [12]
    Parties were given an opportunity to provide oral submissions at a hearing on 16 February 2023. 
  1. [13]
    The issue for determination is whether the Decision was fair and reasonable.

Appeal principles

  1. [14]
    The appeal must be decided by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] 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,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [15]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] 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. [16]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. 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 Directive

  1. [17]
    Section 101 of the PS Act provides for the suspension of a public sector employee:

101 Suspension

  1. A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
  1. the employee is liable to discipline under a disciplinary law; or
  1. the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. The notice must state—
  1. when the suspension starts and ends; and
  1. whether the person is entitled to remuneration for the period of the suspension; and
  1. the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
  1. However, before suspending the person, the chief executive must consider all reasonable alternatives to the employee.

Examples of reasonable alternatives which may be available to the employee—

  • alternative duties change in the location where the employee performs duties another alternative working arrangement
  1. The employee is entitled to normal remuneration for the period of the suspension, unless—
  1. the employee is suspended under subsection(1)(a); and
  1. 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 that the employee is liable.

…

  1. The chief executive may cancel the suspension at any time.
  1. In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  1. Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
  1. [18]
    Clause 8 of Directive 16/23 Suspension ('the Directive') relevantly outlines the factors that must be taken into consideration in considering suspending a public sector employee without remuneration:

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: 

  1. 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
  1. 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 without remuneration.

Grounds of Appeal

  1. [19]
    In the appeal notice, the Appellant outlined the following reasons for the appeal:

…I was charged by police with four offences relating to allegations against me by a student at my school. I deny each and every allegation and have entered a 'not guilty' plea. No indictment has been presented. The Department of Education (DoE) has decided to suspend me 'without' pay due to the nature of the allegations, not because of the existence of any irrefutable evidence.

It is my submission that the mere fact I have been charged with offences, is insufficient grounds for the DoE to suspend me 'without' pay.

The allegations arise directly out of my employment as a teacher, I deny them, and I am currently the subject of a police charge only ie. There is no current indictment against me. 

Appellant's submissions

  1. [20]
    The Appellant provided the following submissions, in summary:
  • On 17 October 2022, Ms Borger was advised of new information regarding the court matter. Irrespective of being aware of new information, there is an absence of specific allegations that justifies suspension without remuneration.
  • It is not reasonable for the Respondent to suspend the Appellant without remuneration in the absence of specific allegation which ought to have been articulated.
  • Section 32 (1) of the Human Rights Act 2019 (Qld) provides that ''A person charged with a criminal offence has the right to presumed innocent until proved guilty according to law.''
  • The Suspension Directive 16/23 provides that ''Under the Human Rights Act 2019, decision makers have an obligation to act and make decision in a way that is compatible with human rights, and when making a decision under this directive to give proper consideration to human rights.''
  • The Appellant submits that there are insufficient grounds to exclude the Appellant from performing alternative duties.
  • Since remuneration has ceased, the Appellant's family have been put in a position of significant financial hardship. Such a decision, when no specific allegations were put forward as a reason for suspension without remuneration or that have not yet been proven to the required legal standard, is non-compliant with procedural fairness and the Appellant's human rights.
  • As teachers are treated as a commodity, many candidates are not selecting teaching as an area of study and current teachers are leaving the profession at an increasing rate. This trend has been identified by the Department, demonstrated by the introduction of policy to entice both the career selection and the retention of teachers.
  • The mere fact that a disciplinary process requires the removal of something that is wanted and/or needed and causes an undesirable outcome, is in its very nature disciplinary.
  • The mere fact that the Appellant has been charged and their registration suspended by the QCT, does not preclude them from performing alternative duties. With internet connectivity there are options now available where the Appellant could perform an administrative role away from the classroom.
  • The Appellant is currently suspended under s 137(1)(b) of the Public Service Act 2008 (Qld). However, has not been provided with any of the details as envisaged in 5.2 of the Directive. Until this has occurred, suspension without remuneration should not be subject to consideration.
  • The Appellant is expected to comply with the Court and QCAT processes and has no control over the time it may take for proceedings to resolve. If the unpredictable timeframe of the criminal justice and QCAT processes were a legitimate reason for the Department to suspend without remuneration, express provisions would be contained with the Act or other legislation. No such provisions are prescribed. 
  • The Respondent failed to act as a model litigant where it suspended without remuneration on the mere basis of; being charged; the QCT suspending the registration; allegations made to the Department and the decision maker not putting those allegations forward as a reason for suspension without remuneration; and no clearly considered and expression of a thorough evaluation of alternative working arrangements. 
  • It is not in the public interest for teachers to be suspended without remuneration for the mere fact of being charged and/or where the QCT has suspended registration. It is in the public interest that the teaching profession with the state of Queensland is viable and attractive for employment.
  • Comments made in AB v State of Queensland[6] that it was extraordinary "that it's considered appropriate simply to brush the presumption of innocence to one side, on the altar – and sacrifice it on the altar of public perception."
  • The Appellant's ability to gain alternative employment would incur significant reduction in remuneration and financial hardship.
  • Adverse public perception is likely to intensify where the Department suspends without remuneration, where nothing has been proven and procedural fairness has not been afforded.
  • The Appellant submits that it is improper to exercise discretion to suspend without remuneration due to the following:
  1. The Act, Department's associated policies, guidelines and procedures and the PSC Directives do not override entrenched principles at law (the presumption of innocence and procedural fairness);
  2. The Department as a model litigant must act in accordance with the law. This requires compliance with affording rights concerning the presumption of innocence and procedural fairness;
  3. The Department has not considered all reasonable alternatives pursuant to clause 5.2 of Directive 16/20;
  4. The mere preferring of the Charges and suspension of registration by the QCT proves nothing. Consequently, this does not prevent from performing alternative duties;
  5. Fairness and reasonability dictate that greater weight should be placed on the 'financial impact' of any decision to suspend without remuneration;
  6. The Department's requirement to manager public resources efficiently may in fact inspire deeper exploration of alternative duties or meaningful work that the Appellant maybe employed to undertake to yield some return on the wages paid;
  7. It is not in the public interest to suspend without remuneration, particularly when nothing has been proven, and no allegations or alternate duties with reasons have been put to the Appellant;
  8. There are no proper grounds for the Department to suspend without remuneration in the circumstances; and
  9. Suspending without remuneration is unreasonable and unfair.

Respondent's submissions

  1. [21]
    The Respondent provided the following submissions in summary: 
  • it was reasonable to form a 'reasonable belief' that the Appellant was liable to discipline for the reasons given in the decision. The Respondent could have reasonably anticipated that a disciplinary process in relation to the reasons given in the decision might end in the termination of the Appellant's employment.
  • alternative duties or other working arrangements were considered, however, as a senior teacher, the Appellant's role is confined to the performance of duties within a school.
  • it was not for the Respondent to undertake a state-wide search of the public service to find another role that the Appellant could undertake. Likewise there was no reasonable adjustments that could be made to the Appellant's role that appropriately managed the risk that arose from the reasons given in the decision.
  • It was reasonably open to the Respondent to conclude that the Appellant receiving normal remuneration during the suspension was not appropriate. At the time that the decision was made the Appellant was, in the reasonable belief of the Respondent, liable to discipline for the reasons given in the decision.
  • The Respondent submits that due to the nature of proceedings, it would not be appropriate to use public funds or in the public interest to continue the Appellant's remuneration.
  • The Respondent submits that the Appellant has continually denied liability to discipline and concluded that on the balance of probabilities, the Appellant is liable to discipline.
  • The Respondent submits that they genuinely engaged with the Appellant throughout the show cause process.
  • The Respondent contends that the decision was reasonably open to the Respondent and should not be disturbed.

Appellant's further submissions

  1. [22]
    The Appellant further submits that the decision to suspend without remuneration is unfair and unreasonable.
  1. [23]
    The Appellant submits that the Respondent remained silent on any new information and has not provided any reasons for decisions of suspension without remuneration. Thus, not affording the Appellant natural justice and the opportunity to articulate a response during the show cause process.
  1. [24]
    The Appellant refers to the statements of the decision maker on 17 October 2022 that "I have been advised of new information in regard to your court matter" and 15 November 2022 that "I have reached my own conclusion independently," submitting that an arbitrary system of one's beliefs ought not to be used as a vehicle to determine the outcome in matter of suspensions.
  1. [25]
    The Appellant submits that the decision is a matter of personal opinion that has not been substantiated by any fact which is contrary to the presumption of innocence.
  1. [26]
    The Appellant submits that the Respondent lacks the ability to follow any formal guidelines or processes that delivers a consistent result, rather the Respondent relied on the values and beliefs of each individual with the authority to make such decisions.
  1. [27]
    The Directive states that the alternative duties do not have to form part of an established role and can be outside the employee's usual place of work in contrast to the Respondent's submission that the Appellant's role as a senior teacher is confined to the performance of duties within a school.
  1. [28]
    The Appellant submits that he has been teaching for 11 years without any prior accusations. Further submitting that:

…So it would seem unreasonable to assume these accusations are true. With the downturn in people choosing teaching as a profession, the ongoing and increasing teacher shortage and with many teachers leaving the profession, it is difficult to understand how with no factual support Ms Borger reached her decision. Ms Borger's decision is a clear symptom of why people are not choosing teaching as profession.

…

…it is a common occurrence that many others find themselves in similar positions. The Appellant has been approached by two ex-Redlynch State College teachers citing the Appellant's charge as one of the reasons they have left the profession.

  1. [29]
    Subsequently, the Appellant strongly denies any wrongdoing to a student in such ways as described and as unsubstantiated by the Queensland Police Service or a court of law.

Consideration

  1. [30]
    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. [31]
    Section 101(4) of the PS Act permits the chief executive to suspend a public sector employee from duty without remuneration in the following circumstances:
  • the chief executive reasonably believes the employee is liable to discipline under a disciplinary law; and
  • 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.
  1. [32]
    The Directive provides at cl 8.2 that a decision to suspend an employee without normal remuneration in accordance with s 101(4)(b) is limited to the following circumstances: 
  • 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.
  1. [33]
    The decision advised the Appellant that he was suspended without normal remuneration, providing detailed responses to the Appellant's submissions. The Respondent also outlined the following reasons for the decision, in summary:

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

…

I have also carefully considered the following factors:

  1. you have been charged with three counts of Indecent treatment of children under the age of 16; and one count of Grooming child under 16 years or parent or carer of child under 16 years – facilitate procurement of child to engage in sexual act;
  1. you have been suspended from duty with remuneration since 8 July 2022 (due to your sick leave from 7 June 2022 to 7 July 2022, the decision dated 17 June 2022 to suspend you from duty did not take into effect until 8 July 2022;
  1. the criminal charges against you resulted in your teacher registration being suspended by the QCT, precluding you from performing your normal duties as a teacher;
  1. no alternative duties have been able to be identified by the Far North Region, and further, I have determined that it is not appropriate for you to perform alternative duties at this time;
  1. the matter is likely to be before the courts for a considerable length of time with no projected date for the resolution of your criminal matters;
  1. the criminal proceedings are not within the control of the Department and without the outcome of the proceedings, the Department is unable to commence any Departmental disciplinary processes;
  1. the decision to suspend you without remuneration is an administrative decision and I am not required, nor is it appropriate for me, to determine whether you engaged in the conduct the subject of the criminal charges in determining whether to suspend you from duty without remuneration;
  1. the Department has an obligation to ensure the effective, efficient, economical and appropriate use of public resources, including the effect upon Departmental finances while continuing your suspension with remuneration in the circumstances; and
  1. the charges are of a very serious nature and entirely inconsistent with the Department’s values and expectations of its employees, particularly those of a teacher. Such offences can be expected to diminish public confidence in the Department if your remuneration is to be continued.
  1. [34]
    The first consideration in accordance with s 101(4) of the PS Act is whether the chief executive 'reasonably believes' the employee is liable to discipline under a disciplinary law. The High Court considered the term 'reasonable grounds' in George v Rockett[7] stating:

When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

  1. [35]
    I am satisfied that the facts before the decision maker, specifically the existence of criminal charges and the nature of those criminal charges, provided a sound basis upon which to form a reasonable belief that the Appellant is liable to discipline under a disciplinary law. It was fair and reasonable for the decision maker to make this determination.
  1. [36]
    The considerations outlined in cl 8.2 of the Directive include whether there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process. This clause specifically outlines an example of where there are criminal charges and the discipline process is pending the outcome of these charges.
  1. [37]
    Clause 8.2 also requires consideration of the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration. The Appellant submits that the decision to suspend him without remuneration has resulted in his family suffering financial hardship. The Appellant also contends that greater weight should have been placed on the financial impact of any decision to suspend without remuneration.
  1. [38]
    The decision demonstrated that the decision maker had regard for the financial impact on the Appellant, noting that this impact may be mitigated if other employment was to be obtained during the period of suspension.
  1. [39]
    The decision maker also considered the broader public interest of the employee remaining on suspension with remuneration, noting that the Department has ''an obligation to ensure the effective, efficient, economical and appropriate use of public resources, including the effect upon Department finances while continuing suspension with remuneration in the circumstances''. The decision maker’s decision to attribute considerable weight to this consideration was not unreasonable in the circumstances.

Other issues

  1. [40]
    The Appellant made a number of other submissions that are addressed below.
  1. [41]
    The Appellant asserts that the statutory instruments, guidelines and procedures do not override entrenched principles at law, referring to AB v State of Queensland[8].
  1. [42]
    The relevant statutory instruments do not 'override' entrenched principles such as the presumption of innocence and procedural fairness. The decision does not set aside the presumption of innocence. There is nothing in the decision that suggests that any finding has been made with respect to the Appellant's guilt or innocence with respect to the criminal charges.
  1. [43]
    I note the following consideration by Deputy President Hartigan 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.

…

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.

  1. [44]
    The decision reflects the decision maker's reasonable belief that the Appellant is liable to discipline under a disciplinary law. A determination that the Appellant is liable to disciplinary law does not pre-empt any findings in the criminal matter. The Appellant is entitled to the presumption of innocence and this decision does not impact on that presumption.
  1. [45]
    The Appellant refers to the requirements of the Directive to inform the Appellant of what other options were considered and the reason why the Appellant could not undertake alternative duties. Although this consideration does not form part of this appeal as it was a consideration in the initial suspension decision, I note the Respondent's correspondence of 17 October 2022 outlined the following:

Given that your teacher registration has been suspended, you cannot continue in a teacher role, or any school-based employment as you are not authorised to work in a ‘regulated employment’ under the Working with Children (Risk Management and Screening) Act 2000. The Far North Queensland Region has been consulted in considering alternative arrangements in accordance with section 137(1)(b) of the Act and Clause 5.2 of the Directive. Based on these discussions, I have determined that there are no suitable alternative duties available at this time.

  1. [46]
    The Appellant submits that the Respondent did not consider alternative duties outside of his role as a senior teacher. The decision maker again demonstrated consideration of alternative duties, stating:

Although you submit that you could complete alternative duties with supervision and monitoring, or a working from home project arrangement could be considered, the suspension of your teacher registration, and your lack of a work with children authority, limits you to working in a non-teaching role and non-school-based role only. I have sought and received advice that no reasonable alternative work arrangement, including working from a regional office or a work from home project, is presently available.

  1. [47]
    The Appellant submits that the existence of charges and suspension of registration by the QCT does not prove anything. The decision does not suggest that anything has been proven. As noted in the decision, the suspension of the Appellant's teaching registration precludes him from working as a teacher and effectively limits him to work in a non-teaching and non-school-based role. Alternative duties should be considered and offered where possible, however in circumstances where there are no available alternative duties, it was not unfair or unreasonable to suspend the Appellant from employment without remuneration.
  1. [48]
    The Appellant refers to the statements that the decision maker had been advised of new information regarding his court matter and that the decision maker has reached her own conclusions independently, submitting that an arbitrary system of one's beliefs ought not to be used as a vehicle to determine the outcome in matter of suspensions.
  1. [49]
    I note that the detailed reasons outlined in the decision do not refer to reliance on any new information, other than an acknowledgment that the dates of future court hearings are outside the control of the Respondent. The statement that the decision maker reached her own conclusion independently does not reflect an arbitrary system of one's own beliefs, rather that a decision has been made without bias. The decision clearly demonstrates that it was not a result of arbitrary beliefs, but an application of the relevant provisions of the Act and Directive after allowing the Appellant to respond in a procedurally fair process.
  1. [50]
    In a similar vein, the Appellant submits that the decision is a matter of personal opinion that has not been substantiated by any fact which is contrary to the presumption of innocence. The Appellant submits that the Respondent lacks the ability to follow any formal guidelines or processes that delivers a consistent result, rather the Respondent relied on the values and beliefs of each individual with the authority to make such decisions. I do not accept that the decision was a result of 'personal opinion', rather I am satisfied that the decision maker applied the criteria as outlined in the PS Act and Directive. Consideration of the statutory provisions requires an assessment of the circumstances and ultimately a judgement by the decision maker, however such a judgement cannot be dismissed as personal opinion when supported by appropriate reasons, as was the case in this decision.
  1. [51]
    The decision complied with the requirements of the Directive, specifically demonstrating consideration of the relevant factors in cl 8.2. It is not disputed that the nature of the discipline matter is serious and that the criminal proceedings are outside the control of both parties thereby preventing the timely conclusion of the discipline process. The decision considered the public interest of the employee remaining on suspension with remuneration and the financial impact on the Appellant, reasonably determining that the Respondent’s duty to manage public resources efficiently weighed in favour of suspension without remuneration.
  1. [52]
    The Appellant's human rights have been considered by the decision maker and after balancing the Appellant's human rights with the other relevant factors, I am satisfied that the decision is not incompatible with the Human Rights Act 2019 (Qld).
  1. [53]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[10] 

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.[11]

  1. [54]
    Applying the principles outlined above, I do not consider that the decision to suspend the Appellant without remuneration lacks justification in the circumstances. Based on the information before me, the decision to suspend the Appellant without remuneration was fair and reasonable.

Order

  1. [55]
    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] The appeal will be determined in accordance with s 324 of the Public Sector Act 2022 (Qld).

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

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

[4] 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.

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

[6] Supreme Court, Brisbane, 11:23 am, Friday 4 August 2017 (No 3805 of 2017), [25].

[7] (1990) 170 CLR 104, [112].

[8] Supreme Court, Brisbane, 11:23 am, Friday 4 August 2017 (No 3805 of 2017), [25].

[9] [2022] QIRC 154, [36] and [39].

[10] [2019] QSC 170.

[11] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Mathewson v State of Queensland (Department of Education)

  • Shortened Case Name:

    Mathewson v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 237

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    22 Aug 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

Case NameFull CitationFrequency
BR v State of Queensland (No. 2) [2022] QIRC 154
2 citations
Jump To
Cite 1 - [2022] QIRC 154
Cite 2 - [2022] QIRC 154
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
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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