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

Johnston v State of Queensland (Department of Education)[2024] QIRC 11

Johnston v State of Queensland (Department of Education)[2024] QIRC 11

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnston v State of Queensland (Department of Education) [2024] QIRC 11

PARTIES:

Johnston, Benjamin James

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/116

PROCEEDING:

Public Sector Appeal – Fair treatment decision

DELIVERED ON:

24 January 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. 1.The appeal is allowed.
  2. 2.The decision of 29 May 2023 is set aside and another decision is substituted.
  3. 3.The Respondent is to reimburse the Appellant the amount he has been deprived of for the period of suspension without remuneration, from 3 February 2022 to 7 May 2023.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant employed as a teacher – appellant charged with criminal offences – where the appellant was acquitted of all charges following trial – where the appellant was suspended without remuneration – whether the appellant should be reimbursed for the period of suspension without remuneration – where the appellant's teacher registration is suspended – whether the appeal should be heard because the appellant has not first used the grievance procedures – where it would be unreasonable to first require the appellant to use the grievance procedures – whether the decision not to reimburse the appellant is fair and reasonable – where the decision not to reimburse the appellant was not fair and reasonable – appeal is allowed

LEGISLATION & OTHER INSTRUMENTS:

Education (Queensland College of Teachers) Act 2005 (Qld) s 82

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

Public Sector Act 2022 (Qld) s 3, s 4, s 91, s 101, s 102, s 131, s 222

Public Service Act 2008 (Qld) s 137

Directive 04/23 Appeals cl 9, cl 12

Directive 06/23 Suspension cl 5, cl 7, cl 8, cl 10

Directive 11/20 Individual Employee Grievances cl 6

Reasons for Decision

  1. [1]
    Mr Benjamin Johnston (the Appellant) has been employed by the Department of Education (the Department), State of Queensland (the Respondent) as a teacher at Park Ridge State High School since February 2015.[1]
  1. [2]
    On 10 August 2020, the Appellant was charged with criminal offences of rape, assault with intent to commit rape, and sexual assaults.[2]  It was submitted that the alleged offences "had no connection with the Appellant's employment, were alleged to have occurred in a private residence and were denied by the Appellant."[3]
  1. [3]
    On 13 August 2020, the Appellant was suspended from duty with remuneration, following the allegations made against him.[4]
  1. [4]
    On 25 January 2022, the Respondent directed the Appellant to show cause as to why he should not be suspended without remuneration.[5]  He did so a few days later.
  1. [5]
    On 3 February 2022, the Respondent advised the Appellant that he was now suspended without remuneration for a period of six months.[6]
  1. [6]
    On 3 August 2022, the Respondent determined to continue the Appellant's suspension without remuneration for a further six months.[7]
  1. [7]
    On 30 January 2023, the Respondent determined to continue the Appellant's suspension without remuneration for a further three months.
  1. [8]
    On 8 March 2023, the Appellant was acquitted of all the charges, following a trial in the Ipswich District Court.[8]
  1. [9]
    On 5 April 2023, the Appellant's solicitors provided a copy of the Verdict and Judgement Record to the Respondent and to the Queensland College of Teachers.[9]
  1. [10]
    The following day,[10] the Respondent advised the Appellant's solicitors that the information had been sent to "the relevant officers in the Department's Integrity Unit for the appropriate delegate's consideration."[11]
  1. [11]
    On 8 May 2023,[12] the decision maker[13] wrote to the Appellant stating (emphasis added):

Section 101(1)(a) of the PS Act (the equivalent of section 137(1)(b) of the repealed Act) provides that an employee may be suspended from duty if the chief executive reasonably believes that the employee is liable to discipline under a disciplinary law.

I have been advised that your matter before the District Court concluded on 8 March 2023, and that you were found not guilty on all charges.  Based on the information available to me at this time, I do not hold the reasonable belief that you are liable to discipline under a disciplinary law.

However, I have been advised that your teacher registration remains suspended by the Queensland College of Teachers (QCT) at this time, as part of their ongoing disciplinary process.  The department is therefore prohibited from employing you as a teacher under the Education (Queensland College of Teachers) Act 2005 (QCT Act).

  1. [12]
    That correspondence[14] further advised that the Appellant would revert to suspension with remuneration for a period of three months - though the suspension was now exercised under s 101(1)(b)[15] of the Public Sector Act 2022 (Qld) (PS Act), rather than s 101(1)(a) of the PS Act.[16]
  1. [13]
    The following day,[17] the Appellant's solicitors wrote to the Respondent seeking that he now be reimbursed for the (approximately) 16 month period of suspension without remuneration,[18] pursuant to cl 10 of the Directive 06/23 Suspension (the Suspension Directive).
  1. [14]
    On 29 May 2023, the decision maker determined the Appellant was not eligible for reimbursement for the period of his suspension without remuneration, 3 February 2022 to 7 May 2023 (the Decision).  That is the subject of this appeal.
  1. [15]
    In that correspondence,[19] the decision maker set out her reasons as:

Clause 10.1 of the Directive states that 'An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.'

At this stage, while I do not hold the reasonable belief that you are liable for discipline under a disciplinary law based on the information currently available to me, I have not made a final decision on the matter.  As stated in my letter dated 8 May 2023, the Department of Education is making enquiries into your criminal matters to determine whether there are grounds for a workplace investigation and / or discipline process.  It is important to note that while you have been found not guilty on all criminal charges, your conduct may still constitute grounds for discipline upon review.  It is also relevant that your QCT teacher registration remains suspended due to the conduct that was subject to the criminal proceedings.

Further, even if the disciplinary process had been concluded, you would not be entitled to reimbursement for the relevant period as you were not available to work during that period.

Clause 10.5 of the Directive states that 'If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.'

As your QCT teacher registration was suspended throughout the relevant period, you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.

On the grounds listed above, I have determined that you are not eligible for reimbursement for the period of 3 February 2022 to 7 May 2023

  1. [16]
    On 19 June 2023, the Appellant filed an Appeal Notice in the Queensland Industrial Relations Commission against the Decision.

Appeal principles

  1. [17]
    The purpose of the appeal is to decide whether the Decision appealed against was fair and reasonable.[20]
  1. [18]
    The appeal is not conducted by way of re-hearing, but rather involves a review of the decision[21] arrived at and the associated decision-making process.  Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 

Relevant Legislation and Directives

  1. [19]
    This Decision is informed by the parties' submissions and attached materials, the relevant legislation, the Suspension Directive and Directive 04/23 Appeals (Appeals Directive).
  1. [20]
    On 1 March 2023, the PS Act came into effect.  The Respondent's correspondence of 8 May 2023 appropriately noted that "The PS Act sets out that your suspension continues on the same terms that applied to you immediately before the commencement of the PS Act,"[22] and referenced the equivalent provisions of the repealed Public Service Act 2008 (Qld) under which the Appellant's suspension was enacted.
  1. [21]
    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, Suspension Directive and Appeals Directive.
  1. [22]
    Legislation prescribes the mandatory provisions that are essential to apply, as contained in the PS Act and Directives for the purposes of this Decision.
  1. [23]
    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. (1)
    An appeal may be made against the following decisions—

  1. (d)
    a fair treatment decision;
  1. [24]
    Section 101 of the PS Act provides for the suspension of a public service employee as follows (emphasis added):

101  Suspension

  1. (1)
    A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes
  1. (a)
    the employee is liable to discipline under a disciplinary law; or
  2. (b)
    the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the employee 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 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. (4)
    The employee is entitled to normal remuneration for the period of the suspension, unless
  1. (a)
    the employee is suspended under subsection (1)(a); and
  2. (b)
    the employee's chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.

  1. (8)
    The chief executive may cancel the suspension at any time.
  2. (9)
    In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  3. (10)
    Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
  1. [25]
    Section 91 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows (emphasis added):

91 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
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  6. (f)
    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. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of—
  1. (i)
    this Act, other than section 39 or 40; or
  2. (ii)
    another Act that applies to the employee in relation to the employee's employment; or
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [26]
    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. [27]
    Clause 5 of the Suspension Directive sets out the "Interpretation of directions", including that (emphasis added):

5.2 These directions:

  1. a.establish procedural matters relating to suspension
  2. 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.
  3. 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
  4. d.establish the circumstances and the way in which a public sector employee may be reimbursed, after a decision is made about whether or not the employee is liable for discipline, for any remuneration the employee does not receive during their suspension
  5. e.provide periodic reviews by public sector entities

  1. [28]
    Clause 7 of the Suspension Directive states:

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

  1. 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
  2. b.alternative duties do not have to form part of an established role and can be outside the employee's usual place of work
  3. 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.
  1. [29]
    Clause 8 of the Suspension Directive provides for suspension of an employee from duty without remuneration in the following terms (emphasis added):

8. Suspension without remuneration

  1. 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.
  2. 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:
  1. 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
  2. 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.
  1. [30]
    Clause 10 of the Suspension Directive pertains to 'Reimbursement when employee has been suspended without normal remuneration' (emphasis added):
  1. 10.1An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
  2. 10.2The amount to be reimbursed is the employee's normal remuneration at the date of suspension without pay for the period the employee was without remuneration during the suspension, taking into account any increase due to certified agreements or rulings made in state wage cases.
  3. 10.3An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
  4. 10.4Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 10.2 above, unless:
  1. a.the employee was engaged in the employment at the time of the suspension, and
  2. b.the employee, in engaging in the employment, was not contravening:
  1. i.the Act, or
  2. ii.a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
  1. 10.5If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

Question to be decided

  1. [31]
    The question to be decided is:

Whether or not the 29 May 2023 decision that the Appellant was not eligible for reimbursement for the period of his suspension without remuneration (3 February 2022 to 7 May 2023) was fair and reasonable.

Submissions

  1. [32]
    In accordance with the Directions Order issued on 26 June 2023, the parties filed written submissions.
  1. [33]
    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.

Jurisdictional objection

  1. [34]
    The Respondent submitted that this appeal should not be heard because the Appellant has not utilised the process provided for in the Directive 11/20 Individual Employee Grievances (IEG Directive). 
  1. [35]
    The Respondent submitted that cl 9.4 of the Appeals Directive meant that the Appellant was required to first use the grievance procedure because the decision maker in this case was not "the chief executive of that entity" and the fair treatment decision subject of this appeal does not relate to "a disciplinary ground."  Clause 9.4 of the Appeals Directive states (emphasis added):

… a public sector employee must first comply with their entity's procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless:

  1. a.the fair treatment decision was made by the chief executive of that entity, or
  2. b.where the fair treatment decision relates to a finding under section 91 of the Act that a disciplinary ground exists for the person.
  1. [36]
    I accept that this fair treatment appeal is not about "a finding … that a disciplinary ground exists".  That is clear.
  1. [37]
    However, I reject the Respondent's argument that the Appellant must first use the grievance procedure because the fair treatment decision was not made by "the chief executive of the entity".  While the decision maker indeed was the "Executive Director, Integrity and Employee Relations" - and not the "Chief Executive" - the Appeals Directive defines the "Chief executive" to have the meaning provided for under section 16 of the Act (that is, "the individual appointed under this Act as the chief executive of the department") in relation to clause 10.5 and 12.5 of the Appeals Directive.  In  this case, the section cited by the Respondent, and on which it relies, is cl 9.4. 
  1. [38]
    If the jurisdictional argument turns on the term "Chief executive", as it relates to the particular circumstances of this fair treatment decision, I would also observe that the 'Definitions' section of the Suspension Directive defines (emphasis added):

Chief executive in the context of exercising a decision-making power, includes a person to whom the chief executive has delegated the decision-making power.

  1. [39]
    While the Appellant received various correspondence pertaining to his suspension from duty from three separate Executive Directors of the department since 12 August 2020, the first two Executive Directors (Mr David Miller and Ms Genevieve Gillies-Day) each confirmed in correspondence that they had, at time of writing, "… the delegated authority to consider your suspension on behalf of the chief executive of the department" (or similar).  In light of that, and the definition provided above, it is reasonable to conclude that the decision maker (also an Executive Director of the department) had been delegated such authority, from 30 January 2023 onwards, despite the omission of such confirmation in her ensuing her correspondence to the Appellant.
  1. [40]
    For those reasons, I do not agree with the Respondent's assertion that the Appellant is required to first use the grievance procedure because the decision subject of this appeal was made by the Executive Director - and not the Chief Executive. 
  1. [41]
    The Respondent noted that s 562A of the IR Act states (emphasis added):

The commission may decide it will only hear an appeal against … a fair treatment decision … under the Public Sector Act 2022 if the commission is satisfied - … for a fair treatment decision under the Public Sector Act 2022it would not be unreasonable to require the appellant to comply with the procedures …"

  1. [42]
    That means that the Commission may exercise its discretion to hear a fair treatment appeal, even if the grievance procedure had not first been used, if it considers it would be unreasonable to require the Appellant to first comply with it.  That is confirmed in cl 9.5 of the Appeals Directive.
  1. [43]
    However, the Appellant submitted that it was unreasonable to require him to first use the grievance procedure because:[23]
  • Clause 6.1(h) of the IEG Directive states that "an investigation, suspension or discipline process that is the subject of a current internal or external review under the PS Act and relevant directive" cannot be the subject of an individual employee grievance. 
  • Utilising the grievance resolution system "would have the inevitable consequence of causing further delay" to the Appellant receiving reimbursement for the period of suspension without remuneration.  It was submitted that "the decision to suspend the Appellant without pay has caused him to enter into significant debt and his inability to repay the loans afforded to him by his family is, in turn, causing them financial stress."  In the course of a lengthy period without remuneration, the Appellant has incurred significant costs for living expenses, medical bills, legal fees for court proceedings that he urgently seeks to recoup.
  • The decision appealed against is of significance to all public sector employees who require professional registration to perform their roles.  The Appellant submitted that:

The Respondent is seeking to establish that under Clause 10.5 of the Suspension Directive (6/23) reimbursement of employee's wages when they have been suspended without pay is not required if that employee's professional registration has been suspended. 

If allowed to do so the Respondent's decision could adversely affect the lives of thousands of public sector employees in Queensland, who are required to report a change in their criminal history, including the making of unproven criminal charges.

An employee who complies with this requirement will normally have their registration suspended until the criminal charges have been dealt with.[24]

  1. [44]
    In response to the Appellant's arguments, the Respondent submitted that:

The Appellant has misinterpreted the relevance of clause 6.1(h) of Directive 11/20, which provides '[a suspension] process that is the subject of a current internal or external review under the PS Act and relevant directive' cannot be the subject of an individual employee grievance (IEG).  For suspensions, these preclusions are referring to the Directive section 11, Periodic [internal] reviews and section 12, a Public Sector Commission [external] review.  As neither of these reviews are currently underway, the Appellant is not precluded from submitting an IEG.

The Respondent acknowledges the Appellant's stated financial and health issues, and the impact a delay in knowing the final determination of this matter may have on him.[25]

  1. [45]
    With respect to the parties' respective positions on cl 6.1(h) of the IEG Directive, the Respondent has focused on the absence of either an internal or external review on the suspension process.  However, the Appellant's point instead related to phrases contained in the decision letter that may have suggested either the investigation or disciplinary process was under review (although no end date for that was provided).
  1. [46]
    In my view, whether or not cl 6.1(h) of the IEG Directive precluded the Appellant from first using that pathway is not the core issue.  Rather the Appellant's ensuing arguments about the further delays, financial stress impacting both himself and members of his family, and public interest are all highly significant and persuasive.
  1. [47]
    The Appellant was on a period of suspension without pay for a period of about 16 months.  During that time, the Appellant's family helped him with legal costs and general living expenses to the tune of approximately $129,000.  Understandably, the Appellant needs to pay his family back.  The Appellant has exhausted his life savings and sold all shares he owned, during the period of suspension without pay.
  1. [48]
    In such circumstances, I agree that it would be unreasonable to first require the Appellant to use the grievance procedures, with respect to the decision maker's refusal to now reimburse him for the period of suspension without remuneration, because "It would only delay the Appeal for an indefinable period of time; would exacerbate the severe financial stress of the Appellant and his family and would not be in the Public Interest."[26] 
  1. [49]
    I will exercise my discretion to hear the appeal.

Appellant's submissions

  1. [50]
    The Appellant argued that the decision to refuse reimbursement for the period of his suspension without remuneration was not fair and reasonable because:
  • The decision maker incorrectly applied the Suspension Directive.[27]
  • The decision maker incorrectly stated that the Appellant was 'unavailable to work' during the relevant period.[28]
  • The decision unfairly impacts on the Appellant's human rights, pursuant to the Human Rights Act 2019.[29]
  • The decision is illogical, as the Appellant's ongoing remuneration has been reinstated although his teacher registration has not yet been restored.[30]

Respondent's submissions

  1. [51]
    The Respondent submitted that the Commission ought confirm the decision subject of this appeal because:

… the Decision provides an evident and intelligible justification in line with the scope, purpose and objective of the PS Act and the Directive, namely that the Appellant was not eligible for reimbursement, as a decision on discipline had not been made nor had the disciplinary process concluded.  If either of these had been satisfied, and did not result in his termination, the amount the Appellant would have been entitled to was nil because he was not available to work throughout his unpaid suspension by virtue of his suspended teacher registration.[31]

  1. [52]
    The Respondent asserted the decision was fair and reasonable because:
  • The Appellant was not entitled to reimbursement for the period of suspension without remuneration, as a decision on discipline had not yet been made nor the process concluded.
  • The decision was reasonably justified, so it is not unreasonable.
  1. [53]
    In its submissions, the Respondent sought to clarify the decision maker's explanation with respect to the matter of the Appellant's suspended teacher registration status (as "not available to work").  The Respondent stated that the decision maker considered the Appellant's entitlement (being the amount to which he would have a right if the preconditions of cl 10.1 of the Suspension Directive had been met) "with reference to cl 10.5 of the Directive, the Appellant's suspended registration and the subsequent prohibition from teaching pursuant to the QCT Act."[32]  However, the Respondent acknowledged that:

Admittedly, the Decision letter is worded in such a way that may lead to confusion regarding these matters being conflated as grounds to determine the Appellant's eligibility for reimbursement, which they are not.  Clause 10.5 of the Directive simply provides a formula to determine the amount an eligible employee should have deducted from their repayment based on their unavailability to work during the relevant period.[33]

  1. [54]
    That is an appropriate concession for the Respondent to make. 

Further inquiries

  1. [55]
    In a Directions Order issued on 17 July 2023, I asked the Respondent to address the following questions:
  1. a.In its letter to the Appellant dated 8 May 2023, the Respondent stated it was still "making inquiries" as to whether or not there were grounds for workplace investigation / discipline process.  What is the current status and / or progress of those inquiries?
  2. b.In its letter to the Appellant dated 29 May 2023, the Respondent stated that "It is also relevant that your QCT teacher registration remains suspended due to the conduct that was subject to the criminal proceedings."  What is the current status of the Appellant's teacher registration?  If the Appellant's teacher registration has been reinstated, what date was that status resumed?
  1. [56]
    With respect to the first matter, it was submitted by the Respondent on 24 July 2023 that:

The Respondent's due diligence enquiries, in regards to whether there are grounds for a workplace investigation and/or commencement of a discipline process, are continuing.  On 21 July 2023, the Respondent received a response from the Office of the Director of Public Prosecutions.  The Respondent is currently awaiting a response from the Queensland Police Service, before making a decision on the next steps.  While the enquiries have taken some time, given they are dependent on the provision of information by third parties, the delay is largely outside of the Respondent's control.  Relevantly, since 8 May 2023, the Appellant has now been suspended on normal remuneration.[34]

  1. [57]
    With respect to the second matter, it was submitted by the Respondent on 24 July 2023 that the Appellant's teacher registration remains suspended by QCT.[35]
  1. [58]
    A further update on the status of those two matters was sought by the Commission on 12 December 2023. 
  1. [59]
    With respect to the first matter, on 12 December 2023 the Respondent reported that:

The Respondent made an information request to the Director of Public Prosecutions (DPP) on 19 July 2023 requesting the brief of evidence and other relevant information, and received a response on 21 July 2023 with limited information due to the restrictions on disclosure under the Director of Public Prosecutions Act 1984.  The Respondent then made an information request to the Queensland Police Service (QPS) on 21 July 2023, requesting the brief of evidence they provided to the DPP.  The Respondent received a response from the QPS on 13 October 2023, containing further information / evidence.  The Respondent is currently considering the information from both the DPP and QPS to determine whether there are grounds to commence an investigation and / or a disciplinary process.[36]

  1. [60]
    The Respondent also confirmed that the Appellant's teacher registration remained suspended by QCT, as at 12 December 2023.

Consideration

  1. [61]
    In this appeal, I must determine whether the Decision was fair and reasonable. 
  1. [62]
    That involves a review of the Decision[37] arrived at and the associated decision-making process. 
  1. [63]
    Section 101 of the PS Act provides for the suspension of a public service employee as follows (emphasis added):

101 Suspension

  1. (1)
    A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes
  1. (a)
    the employee is liable to discipline under a disciplinary law; or
  2. (b)
    the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the employee 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 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. (4)
    The employee is entitled to normal remuneration for the period of the suspension, unless
  1. (a)
    the employee is suspended under subsection (1)(a); and
  2. (b)
    the employee's chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.

  1. (8)
    The chief executive may cancel the suspension at any time.
  2. (9)
    In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  3. (10)
    Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
  1. [64]
    Section 102(1) of the PS Act prescribes that a Directive must be made "about procedures relating to suspension from duty of public sector employees."  That is the Suspension Directive.  Section 102(3) goes on to state that the Directive (emphasis added) "… may make provision for the circumstances, and the way, in which a person may be reimbursed after a decision is made about whether or not the employee is liable for discipline for any remuneration the person does not receive during the person's suspension."  Together with s 222 of the PS Act, that is the authorising provision for the making of the Suspension Directive.
  1. [65]
    Clause 10 'Reimbursement when employee has been suspended without normal remuneration' of the Suspension Directive prescribes an employee's eligibility for reimbursement as follows (emphasis added):
  1. 10.1An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
  1. [66]
    The Respondent submitted that an employee's eligibility to be reimbursed under the Suspension Directive relies on "the satisfaction of two interdependent preconditions in clause 10.1.  The first is that either a decision on discipline has been made or the disciplinary process has concluded.  The second is consideration of the outcome in so far as whether termination resulted."[38] 
  1. [67]
    In order to decide whether or not it was fair and reasonable for the decision maker to refuse the Appellant's request for reimbursement for the period of his suspension without remuneration,[39] I must consider whether or not "a decision on discipline has been made, or the disciplinary process has been concluded". 
  1. [68]
    The Respondent submitted the decision maker's 29 May 2023 correspondence made clear that "a decision on discipline had not yet been made" (emphasis added):

Having reviewed your matter, I do not consider that you are eligible for reimbursement…

At this stage, while I do not hold the reasonable belief that you are liable for discipline under a disciplinary law based on the information currently available to me, I have not made a final decision on the matter your conduct may still constitute grounds for discipline on review.[40]

  1. [69]
    The Respondent concluded that (emphasis added):

It is evident that Ms Borger considers that a decision on discipline has not been made and the disciplinary process has not yet concluded.  These are matters within the Respondent's prerogative to determine.  Accordingly, as of 29 May 2023, the Appellant's circumstances did not satisfy the first precondition in clause 10.1 of the Directive.  Thus, the Appellant was not eligible for reimbursement.  The justification is evident and intelligible.[41]

  1. [70]
    The correspondence dated 29 May 2023, contained the decision maker's stated reasons for refusing to reimburse the Appellant for the period of suspension without remuneration.  In it, three grounds for refusal were explained – the first, that the department has "not made a final decision"; the second, that his teacher registration remains suspended; and third, the Appellant was "not available to work during that period" anyway because of the suspended teacher registration. 
  1. [71]
    After explaining the relevance of each of the above matters to the decision maker's determination that "I do not consider that you are eligible for reimbursement for the relevant period of time", she expressly concluded that (emphasis added):

On the grounds listed above, I have determined that you are not eligible for reimbursement for the period of 3 February 2022 to 7 May 2023 …[42]

  1. [72]
    The reasons for decision contained in the 29 May 2023 correspondence were as follows:

Clause 10.1 of the Directive states that 'An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.'

At this stage, while I do not hold the reasonable belief that you are liable for discipline under a disciplinary law based on the information currently available to me, I have not made a final decision on the matter.  As stated in my letter dated 8 May 2023, the Department of Education is making enquiries into your criminal matters to determine whether there are grounds for a workplace investigation and / or discipline process.  It is important to note that while you have been found not guilty on all criminal charges, your conduct may still constitute grounds for discipline upon review.  It is also relevant that your QCT teacher registration remains suspended due to the conduct that was subject to the criminal proceedings.

Further, even if the disciplinary process had been concluded, you would not be entitled to reimbursement for the relevant period as you were not available to work during that period.

Clause 10.5 of the Directive states that 'If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.'

As your QCT teacher registration was suspended throughout the relevant period, you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.

On the grounds listed above, I have determined that you are not eligible for reimbursement for the period of 3 February 2022 to 7 May 2023 …

  1. [73]
    Section 562B(2)-(4) of the IR Act prescribes that I must review the decision appealed against to decide if it was fair and reasonable.  Where the appeal is "against a promotion decision or a disciplinary decision", s 562B(4)(b) of the IR Act provides that the Commission "may allow other evidence to be taken into account if the commission considers it appropriate."  As this particular appeal is against a fair treatment decision, it follows that the Commission "must decide the appeal having regard to the evidence available to the decision maker when the decision was made".[43]  The reasons given by the decision maker for the refusal in the 29 May 2023 correspondence are weighted significantly more than the clarifications provided in the Respondent's submissions as to what may have been meant or ought to have been said.
  1. [74]
    I note some differences between the 29 May 2023 correspondence and the earlier one of 8 May 2023. 
  1. [75]
    The decision maker's 8 May 2023 correspondence stated that (emphasis added):

Section 101(1)(a) of the PS Act (the equivalent of section 137(1)(b) of the repealed Act) provides that an employee may be suspended from duty if the chief executive reasonably believes that the employee is liable to discipline under a disciplinary law.

I have been advised that your matter before the District Court concluded on 8 March 2023, and that you were found not guilty on all charges.  Based on the information available to me at this time, I do not hold the reasonable belief that you are liable to discipline under a disciplinary law.

However, I have been advised that your teacher registration remains suspended by the Queensland College of Teachers (QCT) at this time, as part of their ongoing disciplinary process.  The department is therefore prohibited from employing you as a teacher under the Education (Queensland College of Teachers) Act 2005 (QCT Act).

Section 101(1)(b) of the PS Act provides that an employee may be suspended from duty if the chief executive reasonably believes that the proper and efficient management of the entity might be prejudiced if the employee if not suspended.  Section 101(10) of the PS Act provides that procedural fairness is not required for the suspension of an employee if the suspension is on normal remuneration.

Section 101(3) of the PS Act requires that before suspending you from duty, consideration must be given to all reasonable alternatives, including alternative duties, a change in the location where you perform your duties, or another alternative working arrangement available for you to perform.

The South East Region has been consulted regarding all possible alternative duties which you could be assigned in the meantime.  While the department is making enquiries into your criminal matters to determine whether there are grounds for a workplace investigation and / or discipline process, I have formed the view that there are no suitable alternative arrangements at another location, or of an administrative nature, where the risk to the department is able to be suitably managed, within reasonable driving distance of your place of residence available at this time.

For these reasons, I have determined that in the circumstances your suspension from duty without normal remuneration will revert to a suspension from duty with remuneration under section 101(1)(b) of the PS Act for a period of three months from the date of this letter.

While you are suspended from duty, you are required to be ready, willing and able to perform your duties, including by maintaining your teacher registration (even while it is suspended)

  1. [76]
    On simple reading, the 8 May 2023 correspondence set out several significant matters:
  • Section 101(1) of the PS Act provides that an employee may be suspended from duty if the chief executive reasonably believes either:

that the employee is liable to discipline under a disciplinary law;[44] or

that the proper and efficient management of the entity might be prejudiced if the employee is not suspended.[45]

  • The decision maker no longer held a reasonable belief that the Appellant was liable to discipline, having recently become aware he had been acquitted on all criminal charges.  Therefore the Appellant could not continue to be suspended under s 101(1)(a) of the PS Act.
  • Even though the decision maker no longer believed the Appellant was liable to discipline, the department still could not employ him as a teacher at this time because his teacher registration remained suspended.  That was subject to a separate QCT process, external to the department.  Therefore, the Appellant's suspension would now be 'with pay' and under s 101(1)(b) of the PS Act. 
  • As at 8 May 2023 then, the decision maker no longer believed that the Appellant was liable to discipline because he had been found not guilty.  The "… information available to me at this time" (news of the Appellant's acquittal) was what prompted the decision maker to change the particular limb under which the suspension was made.  Therefore the decision maker took action to alter the Appellant's suspension, now to that pursuant to s 101(1)(b) of the PS Act as at 8 May 2023.
  • Section 101(3) required the decision maker to consider "all reasonable alternatives" before deciding to suspend the Appellant.  The decision maker determined that there was no such alternatives available "where the risk to the department is able to be suitably managed", while it is "making enquiries into your criminal matters to determine whether there are grounds for a workplace investigation and/or discipline process …"  I observe that the decision maker's reference to "making enquiries" to see if there were grounds for a discipline process was provided as her reason for not placing the Appellant in alternative duties at this time.  It was not raised as some caveat to the decision maker's determination that she did not believe the Appellant was liable to discipline anymore because he had been acquitted.
  • The decision maker decided the Appellant would be suspended with remuneration, under s 101(1)(b).
  • Even while suspended, the Appellant was required to be ready to perform his duties, "including by maintaining your teacher registration (even while it is suspended)".  In my view, that condition supports that the Appellant was in fact "available for work", notwithstanding the 'suspended' status of his teacher registration was specifically noted by the decision maker.  The 8 May 2023 correspondence includes the condition that (emphasis added):

While you are suspended from duty, you are required to be ready, willing and able to perform your duties, including by maintaining your teacher registration (even while it is suspended).

  1. [77]
    Having received the 8 May 2023 correspondence, the Appellant's solicitors wrote to the Respondent the very next day asking that he now be reimbursed for the (approximately) 16 month period of suspension without remuneration,[46] pursuant to cl 10 of the Suspension Directive.
  1. [78]
    In the decision letter dated 29 May 2023, the Appellant's request was refused.
  1. [79]
    I am persuaded by the Appellant's arguments that the decision maker's refusal to reimburse him for the period of suspension without remuneration was not fair and reasonable.  My reasons follow.

Discipline considerations and teacher registration status

  1. [80]
    The decision maker informed the Appellant on 29 May 2023 (and in the earlier 8 May 2023 correspondence) that "I do not hold the reasonable belief that you are liable to discipline under a disciplinary law …"  I note the Appellant was first informed that was the decision maker's view on 8 May 2023, when advised of the change in his suspension terms from 'without remuneration' (pursuant to s 101(1)(a) of the PS Act - if the chief executive reasonably believes the employee is liable to discipline) to now instead 'with remuneration' (pursuant to s 101(1)(b) of the PS Act - if the chief executive reasonably believes the proper and efficient management of the entity might be prejudiced if the employee is not suspended).  The decision maker took that action because she no longer 'reasonably believed' the Appellant is liable to discipline.  Therefore, she appropriately minded that the Appellant's suspension could no longer occur under s 101(1)(a) of the PS Act.  However, the department could still not employ the Appellant "as a teacher" because his QCT teacher registration remained suspended.  So, the decision maker instead determined his suspension ought now be under s 101(1)(b) of the PS Act. 
  1. [81]
    As I have observed at [76] above, the context of the decision maker's reference is important.  Although the Respondent asserted that a decision on discipline had not yet been made, the decision maker's comment about "making enquiries" to see if there were grounds for a discipline process was provided as her reason for not placing the Appellant in alternative duties.  It was not raised as some caveat to the decision maker's determination that she did not believe the Appellant was liable to discipline anymore because he had been acquitted.  The two considerations are quite different.
  1. [82]
    In circumstances where the 29 May 2023 correspondence states both that "I do not hold the reasonable belief that you are liable for discipline under a disciplinary law" and "I have not made a final decision on the matter … your conduct may still constitute grounds for discipline on review", the action taken by the decision maker is important.  In this case, the action taken was to alter the Appellant's suspension from that pursuant to s 101(a) to s 101(b) of the PS Act because the decision maker no longer "reasonably believes the employee is liable to discipline."
  1. [83]
    The Appellant submitted that cl 10.1 "envisages an ongoing disciplinary proceeding in which a decision is pending.  This is not the case for the Appellant because as the Respondent has stated (on 8 May and 29 May 2023) they do not hold the reasonable belief that the Appellant is liable to discipline under a disciplinary law."[47] 
  1. [84]
    In my view, that is correct.  The decision maker's correspondence had already explained that her determination to alter the suspension to that pursuant to s 101(1)(b) of the PS Act was because of the continued suspension of the Appellant's QCT teacher registration status.
  1. [85]
    Even if I am wrong on that point, I reject the Respondent's position that " … a decision on discipline has not been made and the disciplinary process has not yet concluded.  These are matters within the Respondent's prerogative to determine."  It is not fair and reasonable to refuse the Appellant reimbursement for a lengthy period of suspension without remuneration - seemingly indefinitely - just so the Respondent can keep its options open should something come to light.
  1. [86]
    While the Respondent has submitted that "These are matters within the Respondent's prerogative to determine."  I caution that is not an unfettered power.  It must be fair and reasonable.
  1. [87]
    The Appellant is in dire financial straits.  He has endured a lengthy period of suspension without remuneration, during which time he relied heavily on loans from family members to help with living costs, medical expenses - and significant legal fees to defend the court proceedings resulting in his acquittal of all criminal charges.  As long as the Respondent is prepared to state that no final decision has been made, over a year's pay is being withheld from the Appellant.  That cannot continue.
  1. [88]
    The Appellant submitted that, as at the 29 May 2023 decision:

The court transcripts for the Appellant's trial involve cross examination information disclosed in a closed court and it is unlikely that these transcripts can be obtained by the Respondent.

The Respondent was made aware of the Appellant's acquittal on all charges on 5 April 2023, and in these circumstances, the Respondent should already have in their possession all material relevant to a decision on whether disciplinary action should be commenced against the Appellant.[48]

  1. [89]
    I have earlier noted that the Appellant was found 'not guilty' of all charges, alleged to have occurred in a private residence and did not involve a student or colleague of the Appellant.  In those circumstances, I concur with the submission that "… it is difficult to see what possible legitimate disciplinary action against the Appellant that could result from criminal charges, of which he was found to be not guilty, when the charges were completely unconnected to his employment."[49]  The Appellant's argument was not rebutted by the Respondent.[50] 
  1. [90]
    As at 29 May 2023, there was no disciplinary process in train, nor had the Respondent decided to take disciplinary action against the Appellant (as a matter of information, the Respondent's email of 12 December 2023 informed the Commission that remained the case).
  1. [91]
    In the earlier 8 May 2023 correspondence, the decision maker explained that the department was prohibited from employing the Appellant "as a teacher under the … QCT Act …" because his teacher registration remained suspended.  As a result, the Appellant's suspension would continue under s 101(1)(b) of the PS Act.

'Not available to work' considerations

  1. [92]
    By the time of the 29 May 2023 correspondence, the decision maker added that the suspension of the Appellant's teacher registration meant that even if the disciplinary process had been concluded, he would not be entitled to reimbursement for the relevant period because he was not available to work during that period.[51]  The decision maker reasoned:

As your QCT teacher registration was suspended throughout the relevant period, you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.[52]

  1. [93]
    That point was included as one of the grounds upon which the decision maker decided not to reimburse the Appellant.
  1. [94]
    Clause 10.5 of the Suspension Directive states:

  If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

  1. [95]
    The Appellant submitted that the decision maker incorrectly stated that he was unavailable to work during the period of his suspension without remuneration.[53] 
  1. [96]
    The Appellant submitted that:

As the respondent is fully aware, a teacher's registration is automatically suspended in Queensland when they are charged with serious criminal offences.

The logical outcome of this reasoning is that any Queensland teacher who is charged with serious criminal offences will be financially penalised by the Respondent, regardless of whether they are found to be guilty of the charges or not.

Clause 10.5 of the Directive states that:  If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

The Appellant submits that if the intention of the Directive had been to allow the automatic suspension of pay for public servants who require professional registration, this would have been explicitly stated in the Directive.

The Appellant further submits that the fact that neither the Directive nor the Public Sector Act 2022 outline such a position is that it would be manifestly unjust to do so.

Further, such a position would not be in the public interest as it would mean any person could make a false allegation against any public sector employee who requires professional registration and this would result in an automatic financial penalty against that person.

Particularly in the case of teachers, this would make the profession completely unviable as a financially secure form of employment.  With reference to the shortage of (particularly male) teachers in Queensland, it is not in the public interest that teachers be exposed to financial ruin when criminal allegations are made against them and following their acquittal of those allegations.[54]

  1. [97]
    The Respondent asserted that the Appellant was "not available to work" during the period of suspension without remuneration, as his teacher registration had been suspended by QCT.
  1. [98]
    In correspondence dated 29 May 2023, the decision maker explained her reasons for refusing to reimburse the Appellant for the period of suspension without remuneration, as including that (emphasis added):

It is also relevant that your QCT teacher registration remains suspended due to the conduct that was subject to the criminal proceedings.

Further, even if the disciplinary process had been concluded, you would not be entitled to reimbursement for the relevant period as you were not available to work during that period.

Clause 10.5 of the Directive states that 'If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.'

As your QCT teacher registration was suspended throughout the relevant period, you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.

On the grounds listed above, I have determined that you are not eligible for reimbursement for the period of 3 February 2022 to 7 May 2023.  You will continue to receive your normal remuneration, subject to the conditions set out in my letter dated 8 May 2023, while you remain suspended under section 101(1)(b) of the PS Act.

  1. [99]
    I have noted that the decision maker's earlier correspondence of 8 May 2023 includes the 'condition' that (emphasis added):

While you are suspended from duty, you are required to be ready, willing and able to perform your duties, including by maintaining your teacher registration (even while it is suspended).

  1. [100]
    In my view, the terms of that condition supports that the Appellant was in fact "available for work", notwithstanding the 'suspended' status of his teacher registration was specifically noted by the decision maker.
  1. [101]
    The Respondent submitted that the decision maker's correspondence:

… goes on to consider the Appellant's entitlement, being the amount to which he would have a right, if the preconditions of clause 10.1 of the Directive had been satisfied, with reference to clause 10.5 of the Directive, the Appellant's suspended registration and the Appellant's subsequent prohibition from teaching pursuant to the QCT Act.

Admittedly, the Decision letter is worded in such a way that may lead to confusion regarding these matters being conflated as grounds to determine the Appellant's eligibility for reimbursement, which they are not.  Clause 10.5 of the Directive simply provides a formula to determine the amount an eligible employee should have deducted from their repayment based on their unavailability to work during the relevant period. 

The criterion to consider is singular – whether the employee was 'not available to work'.  The question is then what does it mean to be 'not available to work'?

Further to the example provided in the Directive, the Commission has found that being 'not available to work' can also be by virtue of an independent third-party restriction...

In this matter, the Appellant was not available to work by virtue of the QCT suspending his registration and the Respondent's subsequent obligation under the QCT Act.[55]

  1. [102]
    The Respondent cited s 82(2) of the Education (Queensland College of Teachers) Act 2005 (QCT Act) (emphasis added):

The employing authority for a prescribed school must not allow an approved teacher to teach in the prescribed school if the person's registration or permission to teach is suspended by the college [Queensland College of Teachers (QCT)] or QCAT.

  1. [103]
    The Respondent also argued that the Appellant failed to explain how he was available to work, in light of his suspended registration.[56]
  1. [104]
    As I have observed at [76] above, the decision maker expressly required the Appellant to be ready to perform his duties, "including by maintaining your teacher registration (even while it is suspended)", while he was suspended from duty. 
  1. [105]
    I find that the Appellant was "available to work" during the period of suspension without remuneration.

Principles

  1. [106]
    The Suspension Directive sets out the 'Principles' at cl 4.  Those principles include the requirement for chief executives[57] to (emphasis added) "… act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees."
  1. [107]
    I note that because the Respondent's submissions assert that the purpose of the PS Act relevant to this matter is to be found in s 3 and 4(4)(ii)(v), as follows (their emphasis):[58]

3 Main purpose of Act

The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by –

  1. (d)
    establishing a high-performing, apolitical public sector by effective stewardship that–

  1. (ii)
    maintains accountability, impartiality and integrity, while supporting the public interest and when giving advice to the government; and

  1. (v)
    ensures public resources are managed efficiently and their use is accountable.
  1. [108]
    The Respondent argued that:

The scope, purpose and objective of the PS Act, and the subsequent criterion in clause 10.5 of the Directive, is to ensure that the State is not liable for repaying an employee any amount during a time when the people of Queensland could not have derived any benefit from their labour, regardless of their unpaid suspension.  In other words, the Respondent must be an effective steward of public resources and use financial resources accountably by dispassionately applying the relevant criterion in the public interest …[59]

  1. [109]
    However, the Respondent's submission sidestepped another critical aspect of how the Act's main purpose is primarily achieved, that is by "creating a public sector that ensures fairness in the employment relationship and fair treatment of employees by - (i) providing for key rights, obligations and employment arrangements of public sector employees …"[60]  That is also important.
  1. [110]
    Achieving the main purpose of the Act ought not be done by elevating "effective stewardship" above ensuring "fairness in the employment relationship and fair treatment of employees". 
  1. [111]
    On 8 May 2023, after news of the Appellant's acquittal on all charges reached the relevant officers for their consideration, the decision maker's correspondence explained that she no longer "reasonably believes that the employee is liable to discipline under a disciplinary law" and so changed the Appellant's suspension to s 101(1)(b) of the PS Act.  The Appellant's eligibility to be reimbursed under cl 10.1 of the Suspension Directive was satisfied. 
  1. [112]
    What remained though was the fact of the Appellant's suspended QCT teacher registration status.  On 8 May 2023, the decision maker considered that to be the reason why the department was prohibited from employing the Appellant as a teacher.  That is correct.
  1. [113]
    In the 8 May 2023 correspondence, the decision maker correctly noted that s 101(3) of the PS Act required her consideration of "all reasonable alternatives, including alternative duties, a change in the location where you perform your duties, or another alternative working arrangement available for you to perform."  The decision maker concluded that "there were no suitable alternative arrangements at another location, or of an administrative nature, where the risk to the department is able to be suitably managed …"  While that may be arguable, the 8 May 2023 correspondence contained the decision to change the terms of the Appellant's suspension to now 'with remuneration' - and is not subject of this appeal.  (To be clear, the earlier correspondence is referenced only with respect to contrasting the stated reasons of the decision maker before and after the Appellant's solicitors wrote requesting reimbursement).
  1. [114]
    Nonetheless, the 8 May 2023 correspondence required the Appellant to be available to work in these terms "While you are suspended from duty, you are required to be ready, willing and able to perform your duties, including by maintaining your teacher registration (even while it is suspended)."
  1. [115]
    That recount of elements of the 8 May 2023 correspondence is useful because the Respondent submitted that "The scope, purpose and objective of the PS Act, and the subsequent criterion in clause 10.5 of the Directive, is to ensure that the State is not liable for repaying an employee any amount during a time when the people of Queensland could not have derived any benefit from their labour, regardless of their unpaid suspension …"  However, it is also fundamentally about fairness to an employee.  The reimbursement of the period of suspension without remuneration was due to the Appellant at the point the decision maker stated that there was no longer a reasonable belief that he was liable to discipline and acted to change his suspension under s 101(1)(b) of the PS Act.  The action taken reflected the words used.  The decision maker also decided there were no other suitable duties "of an administrative nature" at another location that he could usefully do.  If the genuine concern was with the return on investment for the State, in exchange for the wages of the employee, that may have been better resolved by giving him some work to do (even if it were administrative in nature in a work from home scenario potentially), after news of the Appellant's acquittal was known and certainly by 8 May 2023.  Instead, the decision maker weighed the importance of such return against the management of potential risk to the department - and prioritised managing potential risk.  In those particular circumstances, it is a somewhat awkward argument to recoup costs from the Appellant in the name of 'effective stewardship'.  While the Respondent submitted that was appropriate because the Appellant was not "available to work" during the period of suspension without remuneration, I have disturbed that view.   I have agreed with the Appellant that the suspension of his QCT teacher registration does not mean he is prevented from receiving reimbursement for the period of suspension without remuneration pursuant to cl 10.5 of the Suspension Directive. 
  1. [116]
    With respect to the Respondent's 'effective stewardship' arguments, the Suspension Directive clearly prescribes that the Appellant must be reimbursed in certain circumstances.  I have found those conditions have been met.  The intention of the Act and express provisions of the Directive is that employees in the Appellant's position are to be reimbursed for such periods of suspension without remuneration. 
  1. [117]
    Achieving the purpose of the Act by "creating a public sector that ensures fairness in the employment relationship and fair treatment of employees" would be certainly defeated if the Appellant was acquitted of all accusations made against him - and yet was penalised to the tune of about 16 months lost wages anyway.  If the Respondent's suggested interpretation were to be adopted, it would have dire consequences for all public sector employees who relied upon professional registration to perform their work.  There is no evidence before me that was the intention of the legislature and I do not believe that is the case.
  1. [118]
    For these reasons, the decision maker's decision to refuse to reimburse the Appellant for the period of his suspension without remuneration was not fair and reasonable.
  1. [119]
    I order accordingly.

Orders:

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

  1. 1.The appeal is allowed.
  2. 2.The decision of 29 May 2023 is set aside and another decision is substituted.
  3. 3.The Respondent is to reimburse the Appellant the amount he has been deprived of for the period of suspension without remuneration, from 3 February 2022 to 7 May 2023.

Footnotes

[1] Appellant's submissions filed 30 June 2023, [1].

[2] Correspondence from Holding Redlich to Ms K. Payne (Director, Human Resources Business Partnering, South East Region, Department of Education), dated 9 May 2023.

[3] Appellant's submissions filed 30 June 2023, [3]-[4].

[4] Ibid [2].

[5] Ibid [5]-[6].

[6] Ibid [7].

[7] Ibid [8].

[8] Ibid [10].

[9] Ibid [11].

[10] 6 April 2023.

[11] Appellant's submissions filed 30 June 2023, [12].

[12] Correspondence from Ms R. Borger (Executive Director, Integrity and Employee Relations People, Department of Education) to Mr B. Johnston (c/ Holding Redlich), dated 8 May 2023.

[13] Ms R. Borger, Executive Director, Integrity and Employee Relations People, Department of Education.

[14] 8 May 2023.

[15] "… if the chief executive reasonably believes - … the proper and efficient management of the entity might be prejudiced if the employee is not suspended."

[16] "… if the chief executive reasonably believes – the employee is liable to discipline under a disciplinary law …"; equivalent of s 137(1)(b) of the repealed Public Service Act 2008 (Qld).

[17] 9 May 2023.

[18] 3 February 2022 to 7 May 2023.

[19] 29 May 2023.

[20] Industrial Relations Act 2016 (Qld) s 562B(3).

[21] Ibid s 562B(2).

[22] Correspondence from the decision-maker to Appellant, dated 8 May 2023.

[23] Appellant's reply submissions filed 10 July 2023, [6]-[27].

[24] Ibid [23]-[25].

[25] Further submissions of the Respondent filed 24 July 2023, [24]-[25].

[26] Appellant's reply submissions filed 10 July 2023, [1].

[27] Appeal Notice filed 19 June 2023, 4.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Further submissions of the Respondent filed 24 July 2023, [28].

[32] Ibid [14].

[33] Ibid [15].

[34] Ibid [26].

[35] Ibid [27].

[36] Email from Mr A. Thompson, Manager, Employee Relations, People Branch, Department of Education to the Industrial Registry dated 12 December 2023

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

[38] Further submissions of the Respondent filed 24 July 2023, [11].

[39] On 29 May 2023.

[40] Further submissions of the Respondent filed 24 July 2023, [12].

[41] Ibid [13].

[42] Correspondence from Ms R. Borger to Mr B. Johnston dated 29 May 2023, 2.

[43] Industrial Relations Act 2016 (Qld) s 562B(4)(a).

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

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

[46] 3 February 2022 to 7 May 2023.

[47] Appellant's submissions filed 30 June 2023, [19]-[24].

[48] Appellant's submissions filed 30 June 2023, [19].

[49] Ibid [19]-[24].

[50] Filed 24 July 2023.

[51] Appellant's submissions filed 30 June 2023, [16].

[52] Ibid [25].

[53] Appeal Notice filed 19 June 2023, 4.

[54] Ibid [26], [29]-[34].

[55] Further submissions of the Respondent filed 24 July 2023, [14]-[18].

[56] Ibid [20].

[57] Including "a person to whom the chief executive has delegated the decision-making power"…"in the context of exercising a decision-making power", pursuant to the Suspension Directive, 'Definitions'.

[58] Further submissions of the Respondent filed 24 July 2023, [6].

[59] Ibid [19].

[60] Public Sector Act 2022 (Qld) s 4(c)(i).

Close

Editorial Notes

  • Published Case Name:

    Johnston v State of Queensland (Department of Education)

  • Shortened Case Name:

    Johnston v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 11

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    24 Jan 2024

Appeal Status

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

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.