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Roche v State of Queensland (Queensland Ambulance Service)[2023] QIRC 334

Roche v State of Queensland (Queensland Ambulance Service)[2023] QIRC 334

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 334

PARTIES:

Roche, Mark Shane

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2023/48

PROCEEDING:

Public Sector Appeal – Fair treatment decision

DELIVERED ON:

28 November 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed.
  1. The decision of 24 March 2023 is set aside and another decision is substituted.
  1. The Appellant is returned to suspension on normal remuneration, effective from 31 March 2023.
  1. If the Appellant suffered any loss of normal remuneration from 31 March 2023, the Respondent is to reimburse him the amount he has been deprived of.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant employed as an Advanced Care Paramedic – appellant charged with an indictable offence – appellant suspended from duty on full remuneration – appellant's suspension from duty on full remuneration cancelled pursuant to s 101(8) of the Public Sector Act 2022 (Qld) – where the appellant's suspension was issued pursuant to s 101(1)(b) of Public Sector Act 2022 (Qld) – whether decision to cease suspension from duty on full remuneration was fair and reasonable – decision to cancel suspension on full remuneration was not fair and reasonable – appeal is allowed

LEGISLATION & OTHER

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 562C

Public Sector Act 2022 (Qld) s 91, s 101, s 131

Directive 06/23 Suspension cl 5, cl 8, cl 9

Public Sector Commission, Periodic Review Guide: Discipline and suspension periodic reviews

Public Service Commission, Employee Suspensions cl 3

Public Service Commission, Manage Employee Suspensions cl 3, cl 4, cl 5

Queensland Ambulance Service, Notification of Criminal Charges and/or Convictions

CASES:

Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564

Ambulance Service Act 1991 (Qld) s 18M

Baskin v State of Queensland (Department of Education) [2022] QIRC 349

Kioa v West (1985) 159 CLR 550

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475

Russell v Duke of Norfolk (1949) 1 All ER 109

Thomson v State of Queensland (Department of Education) [2022] QIRC 402

Reasons for Decision

  1. [1]
    Mr Mark Roche (the Appellant) is employed by the Queensland Ambulance Service (QAS), State of Queensland (the Respondent) as an Advanced Care Paramedic at North Lakes Ambulance Station.[1]
  1. [2]
    On 30 December 2022, the Appellant was charged with a criminal offence related to child exploitation material.  The Queensland Police Service (QPS) then contacted Assistant Commissioner Tony Armstrong[2] to advise that the charge against the Appellant related to child exploitation material and that he would not be at work that day.[3]
  1. [3]
    On 31 December 2022, a search warrant was executed at North Lakes Ambulance Station.  The Appellant's locker and personal effects at the station were searched for any evidence of child exploitation material.
  1. [4]
    On 3 January 2023, the Appellant was suspended from duty on full remuneration under s 18M of the Ambulance Service Act 1991 (AS Act) until 10 March 2023, due to being charged with an indictable offence.[4]
  1. [5]
    On 4 January 2023, the QPS advised QAS that the Appellant had been charged on 30 December 2022 with "use of carriage service to access child abuse material", that he had been released on an Undertaking as to Bail to appear on 20 January 2023 in the Brisbane Magistrates Court and that several bail conditions currently applied.  The QPS also advised that they had already notified the Office of the Health Ombudsman (OHO) of the charge[5]
  1. [6]
    The Appellant himself did not notify QAS of either the fact of the charge nor details of the alleged offence.[6]
  1. [7]
    On 1 March 2023, the Public Sector Act 2022 (PS Act) took effect.  The discipline and suspension sections of the AS Act were repealed at that time.[7]
  1. [8]
    On 6 March 2023, the Office of the Health Ombudsman (OHO) "… issued a notice of immediate registration action in relation to Mark Shane Roche (the practitioner) pursuant to Part 7 of the Health Ombudsman Act 2013 (the Act)."  The OHO's decision meant the Appellant was prohibited from practising as a paramedic, with immediate effect.[8] 
  1. [9]
    On 9 March 2023, the QAS reissued the Appellant's suspension from duty on full remuneration until 9 June 2023, now pursuant to s 101(b) of the PS Act.  That correspondence stated:

…

Section 101(10) of the PSA provides that natural justice is not required for the suspension of an employee if the suspension is on normal remuneration.

While at this stage I have formed no view as to the veracity of the concerns, on preliminary consideration of the material before me, I reasonably believe that the proper and efficient management of the QAS may be prejudiced if you are not suspended on normal remuneration under the PSA.[9]

…

  1. [10]
    Neither the OHO nor the Appellant had advised the QAS of the OHO's decision prior to the issue of that correspondence.[10]  The Appellant further stated that "I had an expectation that my paid suspension (based on correspondence from QAS) would continue until 9th June 2023, after which I believed it would be reissued as it was in March 2023."[11]
  1. [11]
    On 13 March 2023, a newspaper article was published titled "Medico in court on kid porn charges."  The article named the Appellant, specified his bail conditions and stated that "the health ombudsman took immediate action on March 6 by suspending his registration."[12]  The Appellant submitted that he had "not seen the Courier Mail article about me due to my bail conditions relating to internet use.  Because I did not see this newspaper article, I did not know that the Health Ombudsman took immediate registration action on me."[13]
  1. [12]
    On 17 March 2023, the OHO sent correspondence to the QAS advising of its 6 March 2023 decision to "issue a notice of immediate registration action in relation to [the Appellant] …"  The correspondence stated:

Based on information received, the Health Ombudsman reasonably believes that because of the practitioner's conduct immediate registration action is otherwise in the public interest.  As a result, the Health Ombudsman decided to suspend the practitioner's paramedicine registration.

The decision came into effect on 6 March 2023. In accordance with section 62(2) of the Act, the decision will continue to have effect until the Queensland Civil and Administrative Tribunal sets aside the decision or the suspension is revoked by the Health Ombudsman…

  1. [13]
    As at 17 March 2023, the Appellant himself had still not notified QAS of the OHO's decision.[14]  The Appellant submitted that this was because "I do not recall receiving notification from OHO about the suspension of my registration until I received QAS correspondence on 24th March 2023".[15]
  1. [14]
    The Respondent submitted that if it had known about the OHO decision, it would not have reissued the Appellant's suspension from duty on full remuneration.  It stated:

Had the QAS been advised on 6 March 2023 of the OHO decision by the OHO or Mr Roche, the QAS would not have reissued Mr Roche's suspension from duty on 9 March 2023.  Rather Mr Roche's suspension from duty would have ended with the effluxion of time on 10 March 2023.[16]

  1. [15]
    Then on 24 March 2023, Assistant Commissioner Tony Armstrong determined to cancel the Appellant's suspension from duty on full remuneration, inviting him to instead access his leave accruals (the Decision).[17] 
  1. [16]
    Assistant Commissioner Armstrong's correspondence of that date stated:

I refer to my letter dated 9 March 2023 in which I determined to reissue your suspension from duty on full remuneration until 9 June 2023.

I also refer to a letter from the Office of the Health Ombudsman dated 17 March 2023 (enclosed) which refers to the Health Ombudsman's decision to issue you a notice of immediate registration action.  Further the Ahpra website also now shows your paramedicine registration as being: "Suspended - This practitioner is currently suspended.  They cannot practice in Australia."

I note that 'practice' is defined as:

"… any role, whether remunerated or not, in which the individual uses their skills and knowledge as a paramedic in their profession.  It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a paramedic in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the paramedicine industry."[18] [underline added]

Given the elements underlined above, I have formed the view that the suspension of your paramedicine registration prevents you from not only performing the inherent requirements of your role as a paramedic, it also restricts you from performing any other role within the Queensland Ambulance Service (QAS) that impacts on the delivery of services.

As outlined in the enclosed OHO letter, the decision to suspend your paramedicine registration continues to have effect until the Queensland Civil and Administrative Tribunal sets aside the decision or the suspension is revoked by the Health Ombudsman.

Accordingly, pursuant to section 101(8) of the Public Sector Act 2022, I am cancelling your suspension from duty effective seven (7) days from your receipt of this letter.

You are invited to advise Ms Lisa Dibley, Director, Moreton District, which leave type you would like to access.  Your response is to be emailed to Ms Dibley at [email protected] within seven (7) days of your receipt of this letter.[19]

…

  1. [17]
    On 27 March 2023, the Appellant filed an Appeal Notice in the Queensland Industrial Relations Commission against the Decision.

Appeal principles

  1. [18]
    The question to be determined is whether the Decision appealed against was fair and reasonable.
  1. [19]
    The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at and the associated decision-making process.
  1. [20]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.

Relevant Legislation, Directive and Information Guides

  1. [21]
    This Decision is informed by the parties' submissions, the relevant legislation, the Public Sector Commission's Directive 06/23 Suspension (Suspension Directive),[20] the Public Service Commission's information guides Manage Employee Suspensions and Employee Suspension and also the Queensland Ambulance Service Notification of Criminal Charges and/or Convictions Human Resource Procedure.[21]
  1. [22]
    Whilst these materials have been considered, different weight has been attributed to each. 
  1. [23]
    On 1 March 2023, the PS Act came into effect.  The Respondent's submissions appropriately note that the "discipline and suspension sections of the AS Act were repealed at the same time,"[22] as the Appellant's initial suspension from duty on full remuneration was enacted under s 18M of the AS Act.[23]
  1. [24]
    At the time the Decision (subject of this appeal) was made, the decision maker was required to have regard to the relevant provisions of PS Act and (current) Suspension Directive.
  1. [25]
    On 27 March 2023, the Appellant filed this appeal. It must be heard and decided under the new PS Act.
  1. [26]
    Legislation prescribes the mandatory provisions that are essential to apply, as contained in the PS Act and Suspension Directive for the purposes of this Decision.
  1. [27]
    Section 131 of the PS Act provides for decisions against which appeals may be made and relevantly provides as follows:

131 Decisions against which appeals may be made

  1. An appeal may be made against the following decisions—

…

(d)a fair treatment decision;

…

(f) a suspension without pay decision;

…

  1. [28]
    Section 101 of the PS Act provides for the suspension of a public service employee as follows (emphasis added):

101Suspension

  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 employee 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. (3)
    However, before suspending the employee, the chief executive must consider all reasonable alternatives 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

  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 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. [29]
    Section 91 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

91Grounds for discipline

  1. A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. been guilty of misconduct; or
  1. been absent from duty without approved leave and without reasonable excuse; or
  1. contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  1. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  1. contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  1. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of—
  1. this Act, other than section 39 or 40; or
  1. another Act that applies to the employee in relation to the employee's employment; or

…

  1. [30]
    On 3 January 2023, the Appellant was suspended from duty on full remuneration until 10 March 2023 because he was charged with an indictable offence.  That action was taken under s 18M of the AS Act, that applied prior to 1 March 2023 (emphasis added):

18MSuspension of service officer liable to discipline

  1. The chief executive may suspend a service officer from duty if the chief executive reasonably believes the officer is liable to discipline under this Act.
  1. The chief executive may cancel the suspension at any time.
  1. [31]
    The Suspension Directive commenced operation on 1 March 2023, and 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.
  1. [32]
    Clause 5 of the Suspension Directive sets out the "Interpretation of directions", including that (emphasis added):

5.2These directions:

  1. a.
    establish procedural matters relating to suspension
  1. b.
    provide circumstances in which a chief executive may, under section 101(4)(b), decide a public sector employee is not entitled to normal remuneration.
  1. c.
    provide for how procedural fairness may be met, noting that requirements in this directive do not reduce the obligations on an entity at common law

…

  1. e.
    provide periodic reviews by public sector entities

…

  1. [33]
    Clauses 8 and 9 of the Suspension Directive provides for suspension of an employee from duty without remuneration in the following terms (emphasis added):

8. Suspension without remuneration

8.1A 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.

8.2Having 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:

a.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

b.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.

9.Procedural fairness

9.1Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness.

9.2As part of the suspension without remuneration process:

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 must occur through a 'show cause' process where the employee is notified in writing the reasons that it is proposed that the employee be suspended without remuneration.

b. the show cause notice may be given at the time of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.

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.  The time to respond must have regard to the volume of material and complexity of the matter. The chief executive must consider any request, and may grant, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.

…

e. where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision.  The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.

  1. [34]
    As earlier noted, I have also considered the Queensland Ambulance Service Notification of Criminal Charges and/or Convictions Human Resource Procedure.[24]
  1. [35]
    The advice contained within the Public Service Commission's information guides Manage Employee Suspensions and Employee Suspensions is not mandatory.  However, the guides were a published Queensland Government resource on the particular topic, relevant to the previous Suspension Directive.[25]  So with that caveat, I have also considered those resources with respect to this Decision.
  1. [36]
    The Public Service Commission's information guide Employee Suspensions relevantly provides:

3.When to suspend under section 137[26]

It may be appropriate to suspend a person, other than as part of an investigation or disciplinary process, where the chief executive has a reasonable belief that the proper and efficient management of the department may be prejudiced if the officer is not suspended, for example:

  • the employee's conduct or alleged conduct raises concerns about work health and safety risks to others, or
  • the employee's conduct or alleged conduct raises concerns about their fitness for work, or
  • an unacceptable risk to the business e.g. risk of interference with a tender process, and
  • public confidence in the agency would be impacted if the employee remains in the workplace.
  1. [37]
    The Public Service Commission's information guide Manage Employee Suspensions relevantly provides:
  • "There is no requirement to seek a response from the employee before any decision to suspend the employee with pay ..."[27]
  • "Suspensions without pay should only be used in limited circumstances … and subject to the principles of natural justice".[28]
  • "Factors that may lead to the consideration of suspension without pay may include a change or significant delay to expected timeframes for resolution, for example, criminal proceedings or the emergence of significant new factors relevant to the decision to suspend from duty which require consideration (for example, a license required to perform duties has been revoked)."[29]
  • "Factors to consider may include … any submissions made by the employee when responding to the 'show cause.'  The principles of natural justice apply when considering suspending an employee without pay.  The employee must be given the opportunity to respond …"[30]
  • "Reviewing the decision regularly is important to ensure the decision to suspend (with or without pay) remains appropriate.  A decision maker should consider if there is new information that may affect or change the previous decisions and document their decision making, including what was taken into account, when changing or affirming the decision."[31]
  • "When an employee is suspended, the final outcome at the conclusion of the suspension will be either:
  • suspension is lifted and the employee returns to normal duties, or
  • suspension is lifted and management or discipline action is taken, or
  • suspension is lifted during or at the conclusion of a disciplinary process, or
  • the employee separates by resignation or termination."[32]

Submissions

  1. [38]
    In accordance with the Directions Order issued on 29 March 2023, the parties filed written submissions.
  1. [39]
    Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) (IR Act), no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [40]
    I have carefully considered all submissions and attached documents but have determined not to approach the writing of this Decision by summarising the entirety of those documents.  My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. 

Appellant's submissions

  1. [41]
    The Appellant argued that the Decision was not fair and reasonable because of the following factors:
  • Right to presumption of innocence

"On the 30th December 2022, I was charged with a criminal offence, and the matter still needs to proceed through the committal process.  I emphasise that I have not been found guilty of any offences, nor have I entered any plea for the offences (but I will contest the charges).  I remain entitled to the presumption of innocence and hope to return to my substantive position once this matter is resolved."[33]

"On 24 March 2023, QAS issued me correspondence cancelling my suspension as a result of a decision of the Health Ombudsman to suspend my registration as a result of criminal charges unrelated to the workplace.  I have not entered a plea in relation to the criminal charges nor have I been convicted of the charges.  The suspension of my registration is pending the outcome of the criminal charges."[34]

  • No consideration of alternative work arrangements

"The suspension of my registration does not mean that I cannot undertake appropriate alternative duties with QAS."[35]

"Despite my Paramedic Registration being suspended, I have skills (other than my paramedic skills) and ability to work in alternative area of QAS (eg Fleet) or undertake host employment in other government agencies or departments."[36]

"…suspension directive 06/23 at 7.3(b) and (c) states "alternative duties do not have to form part of an established role and can be outside to employees place of work."  Further, it states "employers must document and provide to the employee what duties or other options have been identified and considered, including any reason why the employee could not undertake these alternative options."  QAS have not complied with this part of the directive."[37]

  • Lack of procedural fairness

"I was not afforded procedural fairness either in relation to the cancellation of my suspension on full pay or in relation to a decision to place me on unpaid suspension.  I am advised that usually in my circumstances, employees are placed on paid suspension until the external matters are resolved.  I am advised that in some circumstances, employees in my circumstances are asked to show cause why their suspension should not be unpaid.  I am advised that procedural fairness is normally afforded to employees in those circumstances but in my circumstances it has not been.  As a result, I do not believe that this has been a reasonable and fair process and I am aggrieved.

QAS did not include in the correspondence to me what my appeal or review rights are.  QAS did not refer to a directive or legislation that enables QAS to make a decision to cancel my suspension without me being afforded procedural fairness."[38]

"…my lay person interpretation of section 101(4) is that it does provide for suspension without remuneration by reference to the words "employee is entitled to normal remuneration unless".  However, the procedural fairness requirement at section 101(10) applies and was not adhered to in my circumstance.  I refer also to suspension directive 06/23 at sections 8 & 9 as relevant because I am effectively suspended without remuneration."[39]

  • Resultant financial hardship and emotional distress

"This process has severely impacted all aspects of my life, both emotional and financial and it is well known that keeping employees in the work place promotes positive health and well-being, noting that all employers have a responsibility as a duty of care to all employees."[40]

"This QAS process has caused significant increase in already present stress, anxiety and an overall decline in my mental health which has led to increased suicidal ideation."[41]

Respondent's submissions

  1. [42]
    The Respondent submitted that its decision to cancel the Appellant's suspension on full remuneration, and instead invite him to access his leave accruals, was fair and reasonable on the following grounds:
  • The Appellant's paramedicine registration was suspended by the Health Ombudsman.  In correspondence to QAS, the OHO stated:

Based on information received, the Health Ombudsman reasonably believes that because of the practitioner's conduct immediate registration action is otherwise in the public interest.  As a result, the Health Ombudsman decided to suspend the practitioner's paramedicine registration.[42]

  • The registration suspension means the Appellant cannot perform the inherent requirements of his role as paramedic - nor any other role within QAS that impacts on the delivery of services.  He is not permitted to practice in Australia at this time.
  • It is QAS' usual practice to allow an employee without valid registration to take their own leave entitlements, regardless of the reason for this.
  • QAS was unaware of the Health Ombudsman's decision to suspend the Appellant's registration, at the time it reissued the suspension from duty on full remuneration until 9 June 2023.
  • QAS did not take action in relation to the Appellant's suspension from duty until after it received advice from the OHO.
  • QAS determined to cancel the Appellant's suspension from duty, pursuant to section 101(8) of the PS Act. 
  • QAS gave the Appellant seven (7) days' notice of the cancellation of the suspension from duty on full remuneration.
  • QAS invited the Appellant to take leave from his own accrued entitlements, following the cancellation of the suspension from duty on full remuneration.
  • The charges against the Appellant related to his private capacity.
  • QAS agrees that the Appellant has only been charged with an indicatable offence and is entitled to the presumption of innocence.
  • QAS is obligated to follow the decision of the Health Ombudsman.
  • "Section 101(4) of the PS Act does not allow for suspension without pay if the employee was suspended under section 101(1)(b) of the PS Act.  Therefore, suspension without pay was not an option open for consideration by Mr Armstrong."[43]
  • There is no requirement to provide the Appellant with 7 days notice for a response when cancelling a suspension.  Section 101(8) of the PS Act states that "The chief executive may cancel the suspension at any time."
  • While the Appellant claimed that "there was no opportunity or avenue to receive fair hearing to either appeal or dispute QAS ruling to suspend me without pay", the Respondent submitted that representations were nonetheless made on the Appellant's behalf on the evening of Friday 24 March 2023 - and further advised the Respondent on Monday 27 March 2023 that the Appellant had filed his appeal.
  • The Appellant was not suspended without pay, but rather he was "advised that his suspension with remuneration was to be cancelled pursuant to the PS Act."[44]

Consideration

  1. [43]
    In this appeal, I must determine whether the decision was fair and reasonable.

When can the Respondent take a decision to suspend an employee?

  1. [44]
    QAS's first decision to suspend the Appellant on full remuneration was made under s 18M of the AS Act, that applied at the relevant time (prior to 1 March 2023):

18MSuspension of service officer liable to discipline

  1. (1)
    The chief executive may suspend a service officer from duty if the chief executive reasonably believes the officer is liable to discipline under this Act.
  1. (2)
    The chief executive may cancel the suspension at any time.
  1. [45]
    Soon after s 18M of the AS Act was repealed, the Appellant was reissued a suspension notice dated 9 March 2023, as now required under the PS Act.
  1. [46]
    The PS Act states (emphasis added):

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
  2. the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. [47]
    Interestingly, the 9 March 2023 correspondence did not repeat the initial grounds for the Appellant's suspension (that is, because the chief executive reasonably believed he was liable to discipline)[45] - but now instead sought to rely on the reason for suspension to be 'so as not to prejudice the proper and efficient management of the entity'.[46] 
  1. [48]
    The allegation made against the Appellant is very serious.  However, the dispute between the parties is whether or not the Appellant ought continue to be paid for that period (either by retaining the original terms of the 'suspension with pay' - or through revisiting the requirement to explore any alternative duties that may be undertaken by him to achieve this outcome).

Can the Respondent change the terms of the suspension from 'with pay' to 'without pay', when the suspension is issued pursuant to s 101(1)(b) of PS Act?

  1. [49]
    Clause 8.1 of the Suspension Directive provided that "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."  To be clear, it need not always be the case that a period of 'suspension without pay' must follow. 
  1. [50]
    It is also relevant that reference to ceasing paid suspension is only made with respect to section 101(1)(a) 'discipline' - and not s 101(1)(b) 'prejudice to proper and efficient management', which was the limb relied upon by QAS in the reissued notice dated 9 March 2023.
  1. [51]
    Section 101(4) of the PS Act provides that (emphasis added):
  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 the employee is liable.

…

  1. [52]
    The point to draw from the above legislative provision is that while the default position is taken to be 'suspension with pay', it is nonetheless open to the chief executive to decide otherwise, only if satisfied of the relevant criteria.  The first criterion being that the suspension is under s 101(1)(a) - that is not the case here.  The Appellant was notified by QAS on 9 March 2023 that his suspension was pursuant to s 101(1)(b) of the PS Act.  There is no need to go on to examine the second criteria set out at section 101(4)(b) because the Appellant's suspension was not reissued under s 101(1)(a).
  1. [53]
    Simply put, s 101(4) means that the Appellant is entitled to remain suspended from duty on full remuneration because the suspension notice was reissued pursuant to s 101(1)(b).  Section 101(4) provides no capacity to suspend the Appellant without pay in circumstances where his suspension notice was not given under s 101(1)(a).
  1. [54]
    I note also the Suspension Directive states the following about 'suspension without remuneration':

A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a).[47]

  1. [55]
    In my view, s 101(4) of the PS Act and cl 8.1 of the Suspension Directive both support the interpretation that the Appellant cannot be suspended without pay because his suspension was reissued under s 101(b).
  1. [56]
    At this juncture, I acknowledge the Respondent's position that its decision was not to alter the suspension from 'paid' to 'unpaid' - but was rather a decision to 'cancel' the suspension.  With respect to that argument, the various 'final outcomes' of the conclusion of suspension contained in the PSC's materials are most relevant.  That is, the Appellant's suspension could be concluded by any of the following:

When an employee is suspended, the final outcome at the conclusion of the suspension will be either:

•suspension is lifted and the employee returns to normal duties, or

•suspension is lifted and management or discipline action is taken, or

•suspension is lifted during or at the conclusion of a disciplinary process, or

•the employee separates by resignation or termination.[48]

  1. [57]
    I note that cancelling the paid suspension and 'inviting' the Appellant to be paid from his own leave accruals (until those are exhausted presumably, and such payment then stops) is not one of the final outcomes identified above. 
  1. [58]
    Even if I were to be wrong on the point that the Appellant cannot be suspended without pay because it was issued pursuant to s 101(1)(b) of the PS Act,[49] the Respondent's ability to make a different decision about the terms of the Appellant's suspension from duty is not an unfettered power.  Such decision must be fair and reasonable.  It should only be exercised in limited circumstances - and in a way consistent with the mandatory requirements (in particular, natural justice).  My consideration of natural justice is explained below.

What must the Respondent do before suspending an employee without pay?

  1. [59]
    Any decision to suspend an employee without pay must comply with the legislative provisions, as contained in the PS Act and the Suspension Directive. 
  1. [60]
    The Suspension Directive provided that (emphasis added):

7.Procedural matters relating to suspension

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

7.2In 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.

7.3When 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.

…

8. Suspension without remuneration

8.1A 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.

8.2Having 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:

a.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

b.it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee

Did the Respondent afford the Appellant 'natural justice', before making the decision to 'cancel his suspension' on full remuneration - and instead enable payment only via access his own leave accruals?

  1. [61]
    As long as the Appellant is suspended from duty on full remuneration, natural justice is not required.  Section 101(10) of the PS Act makes that clear.
  1. [62]
    Where the Respondent is considering whether or not to change the terms of the Appellant's suspension to 'without pay', he is entitled to natural justice before any decision is made.
  1. [63]
    Natural justice, or procedural fairness, is a term which has been the subject of expansive jurisprudence.  A summary of some of the relevant principles follows:
  • Natural justice is a flexible concept; it does not impose any specific rules per se, but rather encapsulates a range of principles.[50]
  • It requires the adoption of fair procedures which are appropriate and adapted to all the circumstances of the case.[51]
  • Foundationally, it requires that a person should have a reasonable opportunity to make their case.[52]
  • Natural justice is not a one-sided consideration.[53]
  • The matter of whether natural justice has been afforded in any given process should be considered holistically, rather than unduly narrowly focussing on one step or stage.[54]  
  1. [64]
    The relevance to this matter is not whether the rules of procedural fairness or natural justice apply.  They quite plainly do.  It is part of any consideration of whether a decision was fair and reasonable.  The foundational problem here is determining what natural justice requires in this circumstance, and then whether it was afforded. 
  1. [65]
    In addition to the 'natural justice' commentary above, the Suspension Directive defined the required process to be (emphasis added):

9.Procedural fairness

9.1Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness.

9.2As part of the suspension without remuneration process:

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 must occur through a 'show cause' process where the employee is notified in writing the reasons that it is proposed that the employee be suspended without remuneration.

b.the show cause notice may be given at the time of the initial suspension on normal remuneration, or at any subsequent stage during the suspension

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.  The time to respond must have regard to the volume of material and complexity of the matter.  The chief executive must consider any request, and may grant, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.

d.if the employee does not respond to the show cause notice or does not respond within the nominated timeframe in clause 9.2(c) and has not been granted an extension of time to respond, the chief executive may make a decision on suspension without normal remuneration based on the information available to them

e.Where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision.  The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.

…

Definitions

…

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements - the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

…

  1. [66]
    The following explanation of the two key elements of such procedural fairness was included in the Public Sector Commission's Periodic Review Guide: Discipline and suspension periodic reviews, effective 1 March 2023:

Procedural fairness is a right recognised and defined by law that involves two key elements:

  1. a)
    the fair hearing rule - a person must be given sufficient information to know the case against them and be given the opportunity to respond
  1. b)
    the rule against bias - a person is entitled to a decision that is made by a disinterested and unbiased decision maker.

Fair hearing rule

The fair hearing rule is the principle that a decision maker must afford a person whose interests will be adversely affected by a decision the opportunity to present their case. This rule requires that a decision maker listen to and consider a person's point of view on anything that may adversely affect them.

In a practical sense, this involves ensuring a person is provided with adequate notice and information relating to the case against them, given the opportunity to comment and the decision maker considering the information provided by the person in response.

Allegations arising from a discipline process must be sufficiently clear and specific to allow the employee the opportunity to fairly respond. This rule also requires that the employee be given the opportunity to rebut or comment on any new material adverse to their case, including information gathered by a decision maker. If a decision maker has become aware of any new evidence at any stage of a decision-making process, this information must be disclosed, and a response sought unless it was disregarded because it was not credible or relevant.

Rule against bias

The rule against bias requires that decisions are made by an impartial decision maker without an interest in the matter who is free from actual or apparent bias. This requires the reviewer to go beyond looking for actual bias. It also requires a reviewer to consider whether there is anything about a decision maker or their conduct that may give rise to the perception that a decision has been made based on the self-interest of the decision maker.

Risks to actual or perceptions of bias that should be considered during the review include whether:

  • a decision maker has a close personal or professional relationship with any party involved in a matter. Mere knowledge of a person or a previous working relationship may not ordinarily give rise to an actual or perceived bias, however decisions where there is a clear animosity or favouring of a particular version or party may, where there is no justifiable reason for this
  • there is any predetermination of an outcome
  • the decision maker would benefit from a particular outcome being achieved
  • whether the decision maker was involved in the events under review.
  1. [67]
    With those principles and definitions in mind, I have carefully reviewed the application of natural justice in the Appellant's case.  In my view the Appellant was not afforded natural justice, as there were several deficiencies in the process:
  • The Appellant was not afforded procedural fairness, in relation to the cancellation of his suspension on full pay (where the 'final outcome' was other than a return to work, resignation or termination of employment).
  • The Appellant was not afforded procedural fairness, in relation to a decision to effectively place him on unpaid suspension.  He was not invited to show cause as to why the suspension should not be unpaid. 
  • The QAS correspondence dated 24 March 2023 did not contain information as to the Appellant's appeal rights. 
  • The chief executive is required to "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".  That is a requirement to hear the Appellant before a decision is made.  It is not the same as giving the Appellant 7 days' notice of the decision to change the terms of the suspension from 'suspension from duty on full remuneration'.
  • the Respondent's submission that some representations were nonetheless made on the Appellant's behalf on the evening of Friday 24 March 2023, in response to the QAS correspondence, does not discharge the mandatory requirement to give the Appellant an opportunity to be heard before a decision is made. 
  • It was not open to the chief executive to decide that the Appellant ought not be suspended from duty on full remuneration because his suspension was not issued under section 101(1)(a) of the PS Act.  That is because suspensions issued under s 101(1)(b) may only be on full remuneration, pursuant to s 101(4) of the PS Act.

Was the Respondent's decision fair and reasonable?

  1. [68]
    In deciding this question, I have considered the mandatory requirements of the PS Act and Suspension Directive.
  1. [69]
    The Respondent's submission and correspondence filed reveals the extent of its own consideration of the various factors.
  1. [70]
    My determination of what is 'fair and reasonable' has departed from the Respondent's. 
  1. [71]
    Ultimately, I have found that the Respondent's decision to cancel the Appellant's suspension with pay was not fair and reasonable.  In arriving at this conclusion, the factors below are relevant.
  1. [72]
    The very serious nature of the allegation against the Appellant is acknowledged and an external process is underway.  However, the allegation against the Appellant has not yet been tested.  Whilst the QPS have laid charges, all that is required for that to occur is that the police officer "reasonably suspects" a person has committed an offence.
  1. [73]
    The Appellant was suspended under s 101(1)(b) of the PS Act.  Section 101(4) provides suspension with pay to be the default position - and permits a departure from that in certain circumstances only where the employee is suspended under s 101(1)(a).  That is not the case here.
  1. [74]
    The Appellant was not afforded the proper 'opportunity to be heard' ahead of the decision to cancel his suspension with pay.  In doing so, I consider that the mandatory requirement for procedural 'natural justice' has not been adequately discharged.
  1. [75]
    Fundamentally, I am disturbed by the prospect that the Appellant's suspension from duty on full remuneration would cease, in the absence of having any (external or internal) opportunity to be heard. 
  1. [76]
    It is apparent to me that - regardless of the fact that 'suspension without pay' is characterised as an 'administration action' - the end result is that the Appellant would be lurched into dire straits financially and denied the income he relies on for an undefined period. 
  1. [77]
    However the 'cancellation of suspension with pay' may be characterised or indeed intended, it is a relevant consideration to what is a 'fair and reasonable' outcome that the Appellant has not yet been heard.
  1. [78]
    I also note that the Respondent has in this case determined to cancel the Appellant's suspension with pay resultant from, and proximate to, the event of the suspension of his paramedic registration.  I would observe that is less favourable treatment than extended to either Mr Thomson or Mr Baskin, subject of two recent cases considered by this Commission.  For example, in Thomson v State of Queensland (Department of Education),[55] the Appellant was suspended without pay almost 7 months after being charged and having his Blue Card suspended.  (In that earlier case, Mr Thomson was found 'not guilty' by a jury two months later).  In Deputy President Merrell's recent decision in Baskin v State of Queensland (Department of Education),[56] it was shown that the Appellant in that case was suspended without pay almost a year after being charged and having his teacher registration suspended.  The timing of the Respondent's decisions to 'suspend without remuneration' in those two recent examples are more favourable than that extended to the Appellant in this one.
  1. [79]
    People are presumed innocent until the required standard of proof has been discharged to determine otherwise. The proceedings may yet exonerate the Appellant. We do not know.
  1. [80]
    For these reasons, the Respondent's decision to suspend the Appellant without pay was not fair and reasonable.

Conclusion

  1. [81]
    In summary, the Respondent's decision to change the terms of the Appellant's suspension was not fair and reasonable. 
  1. [82]
    That does not disturb the original decision to suspend the Appellant, only that such suspension is to continue on normal remuneration.
  1. [83]
    I order accordingly.

Orders:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1.The appeal is allowed.

2.The decision of 24 March 2023 is set aside and another decision is substituted.

3.The Appellant is returned to suspension on normal remuneration, effective from 31 March 2023.

4.If the Appellant suffered any loss of normal remuneration from 31 March 2023, the Respondent is to reimburse him the amount he has been deprived of.

Footnotes

[1] Respondent's submissions filed 12 April 2023, 1 [3].

[2] Assistant Commissioner, Metro North Region, QAS; the 'decision maker'.

[3] Respondent's submissions filed 12 April 2023, [4].

[4] Ibid [7].

[5] Ibid [8].

[6] Ibid [7].

[7] Ibid [10].

[8] Correspondence from OHO to QAS dated 17 March 2023; Appellant's submissions filed 4 April 2023, [4].

[9] Correspondence from QAS to the Appellant dated 9 March 2023, 1.

[10] Respondent's submissions filed 12 April 2023, [11].

[11] Appellant's submissions filed 4 April 2023, [3].

[12] Respondent's submissions filed 12 April 2023, [13], Attachment 2.

[13] Appellant's reply submissions filed 19 April 2023, [5].

[14] Respondent's submissions filed 12 April 2023, [15].

[15] Appellant's reply submissions filed 19 April 2023, [3].

[16] Respondent's submissions filed 12 April 2023, [16].

[17] Ibid [17].

[18] See 'Practice' at https://www.ahpra.gov.au/Support/Glossary.aspx#P.

[19] Correspondence from QAS to Officer Roche dated 24 March 2023; Appeal Notice filed 27 March 2023, Attachment 2.

[20] The new directive superseded the previous Directive 16/20 Suspension on 1 March 2023.

[21] Effective 16 March 2017.

[22] Respondent's submissions filed 12 April 2023, [10].

[23] Ibid [7].

[24] Effective 16 March 2017.

[25] Directive 16/20 Suspension.

[26] Section 137 was the 'Suspension' provision under the repealed Public Service Act 2008 (Qld).

[27] Public Service Commission, Manage Employee Suspensions, cl 2.

[28] Ibid cl 3.

[29] Ibid.

[30] Ibid.

[31] Ibid cl 4.

[32] Ibid cl 5.

[33] Appellant's submissions filed 4 April 2023, [2].

[34] Appeal Notice filed 27 March 2023, 4.

[35] Ibid.

[36] Appellant's submissions filed 4 April 2023, [5].

[37] Appellant's reply submissions filed 19 April 2023, [8].

[38] Appeal Notice filed 27 March 2023, 4.

[39] Appellant's reply submissions filed 19 April 2023, [7].

[40] Appellant's submissions filed 4 April 2023, [6].

[41] Ibid [11].

[42] Correspondence from OHO to QAS dated 17 March 2023; Appeal Notice filed 27 March 2023, Attachment 1.

[43] Respondent's submissions filed 12 April 2023, [26].

[44] Ibid [31].

[45] Public Sector Act 2022 (Qld) s 101(1)(a).

[46] Ibid s 101(1)(b).

[47] Directive 06/23 Suspension cl 8.1.

[48] Public Service Commission, Manage Employee Suspensions, cl 5.

[49] The default position of 'suspension with pay' cannot be disturbed for those suspensions made pursuant to s 101(1)(b), given s 101(4) of the Public Sector Act 2022 (Qld).

[50] Kioa v West (1985) 159 CLR 550, [11], [15], [33].

[51] Ibid [33].

[52] Russell v Duke of Norfolk (1949) 1 All ER 109, 118.

[53] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504.

[54] Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564, [29].

[55] [2022] QIRC 402.

[56] [2022] QIRC 349.

Close

Editorial Notes

  • Published Case Name:

    Roche v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Roche v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2023] QIRC 334

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    28 Nov 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
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Baskin v State of Queensland (Department of Education) [2022] QIRC 349
2 citations
Jump To
Cite 1 - [2022] QIRC 349
Cite 2 - [2022] QIRC 349
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Mobil Oil Australia Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
2 citations
Jump To
Cite 1 - (1963) 113 CLR 475
Cite 2 - (1963) 113 CLR 475
Russell v Duke of Norfolk (1949) 1 All ER 109
2 citations
Jump To
Cite 1 - (1949) 1 All ER 109
Cite 2 - (1949) 1 All ER 109
Thomson v State of Queensland (Department of Education) [2022] QIRC 402
2 citations
Jump To
Cite 1 - [2022] QIRC 402
Cite 2 - [2022] QIRC 402

Cases Citing

Case NameFull CitationFrequency
Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 2094 citations
Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 2302 citations
1

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