Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2023
  4. Patmore v State of Queensland (Queensland Health) - [2023] QIRC 46

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

Patmore v State of Queensland (Queensland Health)[2023] QIRC 46

Patmore v State of Queensland (Queensland Health)[2023] QIRC 46

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Patmore v State of Queensland (Queensland Health) [2023] QIRC 046

PARTIES:

Patmore, Simon

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/701

PROCEEDING:

Application – Appeal against a suspension without pay decision

DELIVERED ON:

15 February 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant is employed as a senior technical officer with the respondent – where respondent issued a direction on 11 September 2021 mandating that certain employees unless exempted receive a first and second dose of a COVID-19 vaccine by 31 October 2021 – where appellant did not comply with the direction – where appellant suspended without normal remuneration – where appellant submits decision is unfair and unreasonable – consideration of relevant factors – decision fair and reasonable – decision confirmed

LEGISLATION:

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

Public Service Act 2008 (Qld) s 137, s 187 and s  194

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cl 1, cl 6, cl  7, cl 8 and cl 10

Hospital and Health Boards Act 2011 (Qld) s 51A

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Simon Patmore is employed by the State of Queensland (Queensland Health) ('the Department'), as a Senior Technology Officer, Digital Services at the Metro North Hospital and Health Service. Mr Patmore appeals a decision suspending him without normal remuneration.
  1. [2]
    This appeal has been commenced[1] in the context of Mr Patmore allegedly failing to comply with a directive which required Mr Patmore to comply with the requirements of Health Employment Directive 12/21 – Employee COVID-19 vaccination requirements ('Directive 12/21').
  1. [3]
    On 24 September 2021, Mr Patmore applied for an exemption from Directive 12/21. On 13 January 2022, Mr  Patmore was advised that his application for an exemption was rejected and was directed to comply with Directive 12/21.
  1. [4]
    On 23 February 2022, Mr Patmore sought an internal review of the decision declining his application for an exemption. By correspondence dated 25 May 2022, Mr Patmore was advised that the internal review had confirmed the earlier decision to decline his application for an exemption.
  1. [5]
    On 30 May 2022, the Department put an allegation, associated with Mr  Patmore's failure to comply with a workplace directive, to Mr Patmore for his response. Specifically, Mr Patmore was invited to show cause in relation to the allegation that he failed to follow Directive 12/21 ('the allegation'), which required employees to have received two doses of a COVID-19 vaccine by 31 October 2021.
  1. [6]
    In the same correspondence, the Department suspended Mr Patmore from duty on normal remuneration in accordance with s 137(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act'). The Department also advised Mr Patmore that they were considering suspending him without pay and provided Mr Patmore with seven days to respond as to why he should not be suspended without normal remuneration.
  1. [7]
    By letter dated 26 July 2022, the Department issued a decision that Mr Patmore be suspended without normal remuneration pursuant to s 137(1)(b) of the PS Act. In this correspondence, the Department noted that Mr Patmore had not responded to the correspondence of 30 May 2022 with respect to why he should not be suspended without normal remuneration.
  1. [8]
    By notice of appeal filed on 12 August 2022, Mr Patmore appeals the decision dated 26  July 2022. Mr Patmore attaches to the appeal the show cause notice dated 30  May  2022 and the decision dated 26 July 2022, and provides the following in support of his appeal, as relevantly summarised:
  1. (a)
    that the decision to suspend Mr Patmore without pay was made immediately after he lodged a grievance with the Department;
  1. (b)
    that the Department failed to consider redeployment options;
  1. (c)
    that Mr Patmore should be allowed to continue to work from home, considering that he has done so for the last two years; and
  1. (d)
    that the Department has failed to consider his individual circumstances.
  1. [9]
    On 12 August 2022, directions were issued to the parties in relation to the provision of written submissions in support of their positions with respect to the appeal.
  1. [10]
    On 16 August 2022, Mr Patmore filed another appeal in the Industrial Registry.[2]
  1. [11]
    On 24 August 2022, the Industrial Registry received email correspondence from the Department advising that they had not yet received Mr Patmore's submissions as required by the directions order.
  1. [12]
    I listed the matter for mention to hear from the parties in relation to the correspondence received from the Department and to better understand Mr Patmore's intention with respect to the appeal, considering that he had filed another appeal in the Industrial Registry.
  1. [13]
    Following the mention, the Commission issued further directions for the filing and serving of written material in support of the appeal. Both parties complied with the direction.
  1. [14]
    Matter PSA/2022/703 was subsequently discontinued by Mr Patmore.
  1. [15]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [16]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [17]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [18]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [19]
    By letter dated 26 July 2022, the decision maker determined that Mr Patmore would be suspended from duty without normal remuneration and advised Mr Patmore in the following terms:

…

I note that you have not provided a response to my correspondence dated 30 May 2022 and therefore you have not advised why you should not be suspended without normal remuneration. In my previous correspondence I advised you a decision would be made based on the information available to me.

I have reached my own conclusions independently regarding whether or not to suspend you without normal remuneration. I have carefully considered all the material before me. The fact that a particular matter is not specifically addressed in this letter does not mean that I did not consider it.

…

Response to show cause on suspension without normal remuneration

I note you have not provided a response to my correspondence dated 30 May 2022 as to why you should not be suspended without normal remuneration.

Decision on suspension without normal remuneration

Section 137(4) of the Act provides that a chief executive (or delegate) may decide that normal remuneration is not appropriate during a period of suspension, having regard to the nature of the discipline to which the delegate believes the person is liable. Under Clause 6.3 of the Public Service Commission Directive 16/20 Suspension, in making any decision I must consider:

  • the nature of the disciplinary matter.
  • the factors not within the control of the health Service that are preventing the timely conclusion of the discipline process; and
  • the public interest of the employee remaining on suspension with remuneration.

Whilst I have had careful regard to all material before me, including your response, I have determined that in accordance with section 137(4) of the Act that you should be suspended from duty without normal remuneration for the following reasons:

  • the nature of the disciplinary matter; and
  • the public interest in ensuring that management of public resources effectively, efficiently and economically.

I note it is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (the Directive). The decision to direct you to comply with the vaccination requirements set out in the Directive was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The failure by you to follow the terms of the Directive, in conjunction with your subsequent failure to follow a lawful and reasonable direction to adhere to the Directive, demonstrates a potential unwillingness (if proven) to comply with Metro North Health, and Queensland Health, policy over an extensive period of time. The nature of the disciplinary matter is therefore of a serious nature.

Further, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. I have considered the timeframe for you to comply with the Directive, specifically the Directive came into effect on 11 September 2021 and the health Service made its employees aware of the requirements of the Directive and provided sufficient time for employees to comply with the Directive. I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration for any further period.

Accordingly, pursuant to section 137(4) of the Act, I have determined that it is not appropriate for you to be paid normal remuneration during your suspension, having regard to the public interest, due to ensuring risk is appropriately managed regarding the health and safety of the public and the nature of the discipline matter. I have therefore determined that, effective immediately, the suspension without remuneration will take effect from 25 July 2022 and will remain in place until 31 October 2022 at which time I will consider the issue of your suspension afresh.

…

  1. [20]
    The decision maker also considered the effects of the decision on Mr Patmore's human rights as follows:

Human rights

I acknowledge that my decision to suspend you from duty without normal remuneration and the conditions place on you during the course of your suspension may potentially limit your human rights including, but not limited to, your recognition and equality before the law; protection from torture and cruel, inhuman or degrading treatment; freedom of movement; freedom of thought, conscience, religion and belief, freedom of expression; and the right to take part in public life through employment in the public service.

However, in my view, these limits are reasonable and are demonstrably justifiable in the circumstances presented by your case.  This is because it is demonstrably justifiable in a free and democratic society based on human dignity, equality and freedom to ensure employees, patients and others are protected from the possibility of contracting COVID-19 when receiving health services, generally in a physically vulnerable state, and for Metro North health, as part of Queensland health, to maintain a proper and efficient Health Service in responding to the uncertainties presented during the pandemic.

Further, the Health Service has an obligation to manage public resources efficiently, responsibly and in a fully accountable way. I am persuaded that you have been provided with sufficient opportunity to understand the requirements of you and provide an offer to comply. I therefore consider that the limits placed upon your human rights, by the decisions contained within this letter, justify the potential impact on your human rights.

…

  1. [21]
    As noted above, it is the decision dated 26 July 2022 which is the subject of the appeal.

Relevant legislation

  1. [22]
    Section 194 of the PS Act provides for decisions against which appeals may be made as follows:
  1. 194
    Decisions against which appeals may be made
  1. (1)
    An appeal may be made against the following decisions –
  1. …
  1. (bb)
    a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);
  1. …
  1. [23]
    Section 137 of the PS Act provides for the suspension of a public service employee as follows:

137  Suspension

  1. (1)
    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
  1. (a)
    for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  2. (b)
    for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  2. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—
  1. (a)
    the person is suspended under subsection (1)(b); and
  2. (b)
    the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.

…

  1. (9)
    In suspending a public service employee under this section, the chief executive must comply with—
  1. (a)
    the principles of natural justice; and
  1. (b)
    this Act; and
  1. (c)
    the directive made under section 137A.
  1. [24]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    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. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [25]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [26]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.

…

  1. [27]
    Section 51(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [28]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory.
  1. [29]
    Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
  1. [30]
    Clause 6 of Directive 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [31]
    Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [32]
    Clause 7.1 of Directive 12/21 also includes a table[5] which separates Queensland Health employees into a group number based on their employee cohort. Mr Patmore falls within Group 3, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [33]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
  1. 8.1
    Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. b.
    have received the second dose of a COVID-19 vaccine by 31 October 2021.
  • An existing employee must provide to their line manager or upload into the designated system:
  1. a.
    evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  1. b.
    evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
  1. [34]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:
  1. 10.1
    Where an employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 10.2
    Exemptions will be considered in the following circumstances:
  • Where an existing employee has a recognised medical contraindication;
  • Where an existing employee has a genuinely held religious belief;
  • Where another exceptional circumstance exists.
  1. 10.3
    If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.

Whether the decision was fair and reasonable

  1. [35]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine if it is fair and reasonable.
  1. [36]
    Mr Patmore's submissions in relation to the appeal are able to be categorised as follows:
  1. (a)
    lack of procedural fairness;
  1. (b)
    breach of s 137(3) of the PS Act; and
  1. (c)
    personal circumstances and unreasonable financial impact. 
  1. [37]
    The Department submits that the decision to suspend Mr Patmore without remuneration was fair and reasonable.
  1. [38]
    I will consider the appeal in the categories referred to above.

Lack of procedural fairness

  1. [39]
    Mr Patmore asserts that he was not afforded procedural fairness on the basis that the Department did not take into account his response dated 31 July 2022.
  1. [40]
    There is a difficulty in accepting Mr Patmore’s argument as he did not provide his response to the Department prior to it issuing the decision on 26 July 2022. In other words, Mr Patmore’s response dated 31 July 2022 post-dates the date the decision was issued.
  1. [41]
    In the Department’s correspondence of 30 May 2022, Mr Patmore was provided with an opportunity to respond to the show cause notice within 14 days.
  1. [42]
    On 6 June 2022, Mr Patmore requested, and was subsequently granted, an extension to respond to the show cause notice[6] on 17 June 2022.
  1. [43]
    No response to the show cause notice was provided by Mr Patmore either on or before 17 June 2022.
  1. [44]
    However, on 14 June 2022, Mr Patmore submitted a grievance with the Department. Mr Patmore’s grievance appears to arise from the issuing of the show cause process (both with respect to the allegation and the proposed suspension without normal remuneration) within days of the decision to refuse his request for an exemption.
  1. [45]
    Mr Patmore stated his grievance in the following terms:

…

Grievance

Based on the COVID-19 exemption process followed for other Metro North staff, I feel that I have been unfairly and inequitably treated by not been given the same opportunity that were given to staff to consider the decisions taken in respect to their requests for review well before being issued with their show cause notices.

Specifically, I understand that some other Metro North staff may have received their outcome letters from Jackie Hanson well in advance of receiving a show cause letter. This has not occurred in my case, I am at a loss to understand why not.

…

  1. [46]
    The grievance lodged by Mr Patmore sought the following:

…

  1. The immediate withdrawal of your show cause letter and suspension notice. This will provide me with the opportunity to consider Jackie Hanson's response relating to my exemption application and to seek advice in terms of my options. As noted above, Jackie Hanson confirmed in her letter that I have 21 days to lodge an appeal in relation to that decision and I need time to consider my options. The show cause letter has thrown me into a state of confusion and has created significant stress for me and my family.
  1. An explanation as to who made the decision to treat me this way and on what basis. As you signed my show cause letter, I assume that decision was solely yours and I think I am entitled to understand why you took the action you did. This is very important to me.

…

Further, it is my expectation the status quo be maintained in terms of my employment arrangements while this matter is progressed (and hopefully resolved). Specifically, I request that I be able to continue with the work from home arrangements that have been in place for nearly 18 months while my grievance is resolved.

Finally, I am seeking assurance that there will be no action taken to place me on suspension, either with or without pay, until this matter is resolved, and I have the opportunity to provide a response relating to suspension.

…

  1. [47]
    The Department acknowledged receipt of the grievance and advised Mr Patmore that he would receive a response to it in due course. By email correspondence dated 27  June  2022, Mr Patmore advised the Department that he had not received a response to his grievance lodged on 15 June 2022 and sought advice regarding the lodgement of a 'Stage 2 Grievance'.
  1. [48]
    By email correspondence dated 29 June 2022, the Department advised Mr Patmore that he would be provided with further advice in due course. At no time did the Department provide any assurances in the nature of those sought by Mr Patmore. 
  1. [49]
    On 21 July 2022, the Department wrote to Mr Patmore providing the outcome of the grievance and he was advised that the disciplinary process would continue and that the requests (sought in his written grievance) would not be accommodated.
  1. [50]
    Mr Patmore wrote to the Department[7] on 24 July 2022 advising that he intended to respond to the Department’s correspondence of 21 July 2022 by 31 July 2022. The Department’s correspondence of 21 July 2022 was the grievance outcome letter. Accordingly, Mr Patmore had not sought a further extension to the period to respond to the suspension show cause after the already extended (and expired) date of 17 June 2022.
  1. [51]
    Instead of submitting a response to the show cause process, Mr Patmore elected to commence a grievance with respect to the timing of the commencement of the show cause process.
  1. [52]
    It appears the Department elected not to take any steps regarding the show cause whilst the grievance was on foot.
  1. [53]
    The Department provided Mr Patmore with an opportunity to respond yet it had not received any submissions in response to the show cause notice from Mr Patmore on or before 17 June 2022 and, further, it had received no indication from Mr Patmore during the grievance process that he intended to seek a further extension to respond. Tellingly, when Mr Patmore wrote to the Department on 24 July 2022, he indicated that he would be responding to the grievance outcome letter of 21 July 2022; he did not state that he would be providing a response to the show cause notice. Mr Patmore’s provision of the 31 July 2022 correspondence was determined unilaterally by him without any indication that it would include a response to the show cause.
  1. [54]
    I have concluded that the Department provided Mr Patmore with an opportunity to respond and clearly set out the process for Mr Patmore to respond. The Department acted fairly and reasonably by granting Mr Patmore an extension to the date the response was due. Mr Patmore chose to, instead, commence a grievance process. Mr Patmore did not provide a response to the show cause on or before 17 June 2022. The Department acted fairly and reasonably by pausing the show cause process whilst the grievance was on foot. Once the grievance process had finalised, the Department was entitled to continue with the show cause process. It did so by issuing the decision on 26 July 2022. I do not consider that there has been a lack of procedural fairness.

Breach of s 137(3) of the PS Act

  1. [55]
    Mr Patmore submits that the Department failed to consider alternative working arrangements before deciding to suspend him from duty as required by s 137(3) of the PS Act.
  1. [56]
    Mr Patmore was suspended from his employment in a decision dated 30 May 2022. The decision of 30 May 2022 is not the subject of this appeal.[8] This appeal only relates to the decision to suspend Mr Patmore without normal remuneration issued on 26 July 2022. The Department was not required to reconsider s 137(3) of the PS Act when making the determination of 26 July 2022.

Personal circumstances and unreasonable financial impact

  1. [57]
    Mr Patmore submits that the decision to suspend him without remuneration is not fair and reasonable on the basis that it will have a financial impact on him. Further, Mr  Patmore submits that if the Department is unwilling to provide him with alternative working arrangements or duties, then he should be suspended with full remuneration until the conclusion of the disciplinary process.
  1. [58]
    Mr Patmore further submits that his personal circumstances are somewhat unique insofar as his partner has also been suspended without pay by the Department at or about the same time as Mr Patmore.
  1. [59]
    The Department submits that in making this decision, regard was had to ensuring that public resources were used effectively. The Department note in its submissions that there is nothing precluding Mr Patmore from seeking alternative employment outside of the Health Service.
  1. [60]
    There is no doubt that Mr Patmore will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, it must be considered in the context of all the relevant circumstances of the matter.
  1. [61]
    The circumstances of this matter include that Mr Patmore is alleged to have failed to comply with a directive which consequently formed a condition of his employment. Further, it appears that Mr Patmore's submissions indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Patmore to receive remuneration during the remainder of the disciplinary process.
  1. [62]
    I have also had regard to the obligation held by the Department to efficiently manage public resources. Whilst Mr Patmore’s personal circumstances are such that he will no doubt suffer a financial detriment, if suspended without remuneration, the Department has confirmed that it does not object to Mr Patmore finding alternate employment in an attempt to mitigate any financial harm.
  1. [63]
    For these reasons, I do not consider that the decision maker failed to have regard to Mr  Patmore’s personal circumstances and the financial impact the decision would have on him.

Order

  1. [64]
    Accordingly, I make the following order:

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

Footnotes

[1] Appeal filed 20 May 2022.

[2] PSA/2022/703.

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

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

[5] Table 1.

[6] With respect to the proposed suspension without remuneration.

[7] As stated in his correspondence of 31 July 2022.

[8] In any event, a review of the decision on 30 May 2022 indicates that the Department had regard to s 137(3) of the PS Act.

Close

Editorial Notes

  • Published Case Name:

    Patmore v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Patmore v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 46

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    15 Feb 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
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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.