Roche v State of Queensland (Queensland Ambulance Service) (No. 2)
[2024] QIRC 230
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- Unreported Judgment
- Roche v State of Queensland (Queensland Ambulance Service) (No. 2)[2024] QIRC 230
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Roche v State of Queensland (Queensland Ambulance Service) (No. 2)[2024] QIRC 230
Roche v State of Queensland (Queensland Ambulance Service) (No. 2)[2024] QIRC 230
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 230 |
PARTIES: | Roche, Mark Shane Appellant v State of Queensland (Queensland Ambulance Service) Respondent |
CASE NO: | PSA/2024/77 |
PROCEEDING: | Public Sector Appeal – Fair Treatment |
DELIVERED ON: | 17 September 2024 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPEAL – where appellant paramedic in Queensland Ambulance Service – where appellant charged with offences relating to child exploitation material – where appellant suspended under section 101(1)(a) of the Public Sector Act 2022 on 19 December 2023 – where appellant later suspended without pay on 11 April 2024 – where appeal filed on 1 May 2024 – where appellant appeals decisions made on 19 December 2023 and 11 April 2024 – consideration of the nature of public sector appeals – consideration of time limits for appeals – where appellant argues he was not afforded procedural fairness because of insufficient information in relation to the decisions and because there was a switching of the limb under which the appellant was suspended – where appellant argues that the presumption of innocence precludes a finding that the appellant was liable to discipline –where respondent argues that the 19 December 2024 decision is out of time with no acceptable explanation for delay and no application for an extension of time – where respondent argues there are poor prospects – where respondent argues there was procedural fairness – where respondent argues the appeal is misconceived because the appellant's arguments are only directed towards the out-of-time 19 December 2024 decision – where respondent argues there is no inconsistency between the presumption of innocence and forming a reasonable belief the appellant was liable to discipline – where respondent argues that no basis for proposition that it could not change the limb under which it suspended the appellant – where respondent argues it afforded the appellant procedural fairness – where respondent argues the 11 April 2024 decision was fair and reasonable – whether time should be extended to hear an appeal of the 19 December 2024 decision – consideration of the meaning of the word "liable" – held time should not be extended to hear 19 December 2024 – whether the Commission should refuse to deal with the matter under s 562A of the Industrial Relations Act 2016 (Qld) – held that there were insufficient submissions to refuse to deal with the matter under s 562A of the Industrial Relations Act 2016 (Qld) – whether the 11 April 2024 decision fair and reasonable – held that 11 April 2024 decision fair and reasonable – the 11 April 2024 decision confirmed – appeal dismissed. |
LEGISLATION: | Ambulance Service Act 1991 (Qld) s 18M Industrial Relations Act 2016 (Qld) s 562A, s 562B, s 564 Public Sector Act 2022 (Qld) s 91, s 101 |
CASES: | A1 Rubber (Aus) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 BR v State of Queensland (No. 2) [2022] QIRC 154 Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 97 Deputy Commissioner of Taxation (Cth) v Moorebank Pty Ltd [1987] 1 Qd R 414 Duck v State of Queensland (Department of Education) [2022] QIRC 347 Forsyth-Stewart v Queensland [2021] QIRC 395 Hall v Bonnett [1956] SASR 10 He v Secretary, Department of Education, Skills and Employment [2024] FCA 819 Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 Hunter Valley Developments Pty Ltd v Cohenas [1984] FCA 176 Littlewood v George Wimpey & Co Ltd and British Overseas Airways Corpn [1953] 2 QB 501 O'Keefe v Calwell (1949) 77 CLR 261 Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 334 Saba v State of Queensland (Department of Education) [2022] QIRC 384 Tickle Industries Pty Ltd v Hann [1974] 130 CLR 321 Tollesson v State of Queensland (Queensland Health) [2024] QIRC 69 |
Reasons for Decision
- [1]Mr Mark Roche ('Appellant') is employed by the Queensland Ambulance Service as an Advanced Care Paramedic. On 1 May 2024, he filed an appeal notice appealing a decision dated 11 April 2024 by Ms Deanne Taylor-Dutton, Deputy Commissioner, Operations South, Queensland Ambulance Service ('Decision') to suspend the Appellant without pay pursuant to section 101 of the Public Sector Act 2022 ('PS Act').
Background
- [2]On 30 December 2022, the Queensland Police Service advised the Respondent that the Appellant had been charged with an indictable offence relating to child exploitation material. On 3 January 2023, the Respondent suspended the Appellant from duty with pay until 10 March 2023 pursuant to section 18M of Ambulance Service Act 1991 ('Ambulance Service Act'). Section 18M of the Ambulance Service Act has since been repealed[1] and section 101 of the PS Act now takes its place.
- [3]On 6 March 2023, the Appellant was notified by the Office of the Health Ombudsman ('OHO') that it had decided to prohibit the Appellant from practising as a paramedic effective from that day. On 9 March 2023, the Respondent advised the Appellant that he was formally suspended from duty pursuant to section 101(1)(b) of the PS Act until 9 June 2023. On 24 March 2023, the Respondent advised the Appellant that the Respondent had decided to cancel the suspension on full pay with seven days' notice and invited the Appellant to take accrued leave. The Appellant successfully appealed that decision to the Queensland Industrial Relations Commission ('Commission') in Roche v State of Queensland (Queensland Ambulance Service) ('Roche').[2]
- [4]The Appellant succeeded in Roche because the Respondent initially suspended him under the wrong section of the PS Act to allow it to later suspend without pay. There are two relevant subsections to section 101(1) of the PS Act: subsection 101(1)(a) and subsection 101(1)(b). They both provide a different basis upon which a public sector employee's chief executive may suspend the employee from duty. Subsection 101(1)(a) is where the chief executive reasonably believes that the employee is liable to discipline under a disciplinary law. Subsection 101(1)(b) is where the chief executive reasonably believes that the proper and efficient management of the employing entity might be prejudiced if the employee is not suspended. The Respondent initially suspended the Appellant with pay under subsection 101(1)(b). However, switching an employee from a suspension with pay to a suspension without pay is only possible if the employee has been suspended under subsection 101(1)(a). That is because the provision allowing for a suspension without pay, subsection 101(4)(a), relevantly provides that that can only occur where the employee has been suspended under subsection 101(1)(a). This means that the Respondent could not lawfully convert the Appellant's suspension to be without pay while suspending him under subsection 101(1)(b). It was on this basis, and on the basis that the Appellant was not afforded procedural fairness, that Industrial Commissioner McLennan allowed the Appellant's appeal of the decision to suspend him without pay while suspending him under subsection 101(1)(b).[3]
- [5]Following Roche, the Respondent issued a new decision by letter on 19 December 2024 changing the basis upon which it suspended the Appellant on pay to section 101(1)(a) ('the 19 December Decision').
- [6]On 7 March 2023 the Appellant was asked to show cause as to why the Respondent should not convert the suspension from 'with pay' to 'without pay'. The Appellant provided his response on 28 March 2023. On 11 April 2024, the Appellant's suspension with pay was converted to a suspension without pay. That is the decision that is the subject of this appeal. However, for reasons developed below, the Appellant clearly seeks to also appeal the 19 December Decision.
Relevant principles
Nature of public service appeals
- [7]A public sector appeal is a review, and not a re-hearing, of the relevant decision.[4] The test to be applied is whether the impugned decision was "fair and reasonable". Those words are to be construed in accordance with their plain meaning. It is not the role of the Commission in applying that test to apply the strict legal test of reasonableness that is applied in judicial review. It must be shown there is some form of unfairness beyond mere disappointment with the outcome in the relevant decision before a decision may be set aside.[5]
Time limit for appeals
- [8]In this case, section 564(3) of the Industrial Relations Act 2016 ('IR Act') relevantly provides that a public sector appeal must be filed within 21 days after the date upon which the relevant decision was given to the Appellant.
The parties' arguments
- [9]I have considered all of the submissions, however, I set out only the relevant parts of the submissions below.
The Appellant's arguments
- [10]The Appellant's primary argument, made in his appeal notice and developed in his reply submissions, is that he was not given an explanation about, nor given the opportunity to respond to, the decision to suspend him under subsection 101(1)(a) instead of subsection 101(1)(b). Hence, the Appellant clearly seeks to appeal the 19 December Decision. The Appellant submits that the only thing that changed when the Respondent switched his suspension to be under section 101(1)(a), instead of 101(1)(b), was that the Respondent had become aware that the Appellant was alleged to have been the victim of domestic violence. I surmise that the Appellant is arguing here that if this was the basis for the Respondent switching the section that the Appellant was suspended under, it was an improper basis for doing so. But the Appellant submits that he does not actually know why the basis for his suspension was changed in the 19 December Decision.
- [11]The Appellant argues that he was not given the opportunity to know why, in the 19 December Decision, the basis of his suspension being changed and that he did not have any opportunity to respond to that decision. The lack of the explanation, or opportunity to respond, and the potentially improper (domestic violence related) basis for switching the suspension mentioned above, are the basis for the Appellant's argument against the 19 December Decision.
- [12]The Appellant cites Tollesson v State of Queensland (Queensland Health)[6] ('Tollesson') in support of this submission. The gist of the Appellant's argument is that this case, like the one in Tollesson, is one where there is insufficient factual information in the 19 December Decision letter to show the basis on which the decision-maker formed a reasonable belief that the Appellant was liable to discipline.
- [13]The Appellant further argues that the presumption of innocence precluded the chief executive from reasonably believing that the Appellant was liable to discipline. In summary, the argument is that if the Appellant is presumed to be innocent until proven guilty, and he is not yet proven guilty, then there is no way the chief executive could have formed a reasonable belief as to wrongdoing of such a degree that rendered the Appellant liable to discipline.
The Respondent's arguments
- [14]The Respondent argues that any appeal of the 19 December Decision is out of time. It points out that all of the Appellant's focus is on the 19 December Decision, despite the appeal purporting to be an appeal of the decision to suspend without pay that was made on 11 April 2024. Any appeal of the 19 December Decision needed to have been filed within 21 days. That is, by 8 January 2024. Hence, any appeal of that 19 December Decision is not within jurisdiction. The Respondent argues that no application for an extension of time has been made and no acceptable explanation has been provided for the delay, even if the Appellant is impliedly seeking extra time. The Respondent also submits that there are such poor prospects that the Commission should not entertain extending the time limit to appeal the 19 December Decision.
- [15]As to the delay in challenging the 19 December Decision, the Respondent notes that the Appellant's explanation is that he did not know he could have appealed that decision. The Respondent submits that ignorance of appeal rights is an insufficient explanation for delay.[7] The Respondent also submits that not informing the Appellant about appeal rights in the 19 December Decision does not constitute sufficient grounds for the Commission to exercise the discretion to extend time.[8]
- [16]The Respondent further argues that the Appellant's arguments about the lack of explanation about, or the opportunity to respond to, the 19 December Decision amount to a claim that the Appellant was denied procedural fairness. The Respondent says that such an argument is misconceived because the Appellant was suspended with pay on 19 December 2023 and the Respondent does not need to provide procedural fairness to an employee if they are entitled to normal remuneration during their suspension.[9]
- [17]The Respondent also argues that the appeal is misconceived because the appeal is ostensibly against the 11 April 2024 decision to suspend the Appellant without pay but the submissions are only directed towards the 19 December Decision to suspend with pay. Hence, the submission is that the Appellant is therefore only attempting to appeal the 19 December Decision, which is out of time.
- [18]Arguing that there is no inconsistency between the presumption of innocence and forming a reasonable belief the Appellant was liable to discipline, the Respondent submits that this ground of the appeal also fails. The Respondent relies on the observations of Commissioner Hartigan, as her Honour then was, in BR v State of Queensland (No. 2).[10] The key point being that there is a distinction between deciding that a person is liable to discipline and a decision that they are guilty of a crime. Where a criminal conviction may not be proven beyond reasonable doubt for whatever reason, there may still be subsequent findings of fact as part of the employer's own investigations that result in the employee being disciplined. The argument is, in summary, that it was open to the decision-maker, after considering the information to hand at the time, to form a reasonable belief that discipline could be imposed if it were established that the Appellant engaged in misconduct within the meaning of sections 91(1)(b) and 91(5)(b) of the PS Act. Thus, finding that the Appellant was liable to discipline was not precluded by the presumption of innocence.
- [19]The Respondent also submits that there is no basis for the proposition that suspending an employee under one limb of section 101(1) prevents the Respondent from suspending an employee under the other limb, even where the same facts and circumstances exist.
- [20]As to procedural fairness, the Respondent submits that it had sent no less than 19 letters to the Appellant variously setting out and reiterating the reason for his suspension. The Respondent argues that it afforded the Appellant the opportunity to respond to the allegations, which he did utilise. In that sense, the Respondent says that the Decision was procedurally fair and reasonable.
- [21]The Respondent also argues that the Decision was substantively fair and reasonable. The finding that the Appellant was liable to discipline was largely premised on him being charged with crimes of possessing, making, and distributing child exploitation material. The Respondent also gave weight to the protracted prosecution against the Appellant and the financial hardship the Appellant faced. However, the Respondent argues that any financial hardship for the Appellant is outweighed by the public interest in not continuing a suspension with pay while criminal charges slowly work their way through to conclusion.
Consideration
The 19 December Decision
- [22]The Appellant clearly seeks to challenge 19 December Decision; that is the decision made on 19 December 2023 to suspend him under section 101(1)(a). However, I accept the Respondent’s submissions on this point. The purported appeal of the 19 December Decision, being 92 days late, is made well out of time. If the Appellant is seeking extra time, I am guided by the decision of his Honour, Deputy President Merrell, in Forsyth-Stewart v Queensland.[11] In that decision, his Honour approved of the principles for extension of time described by his Honour, Justice Wilcox, in Hunter Valley Developments Pty Ltd v Cohenas:[12]
- special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
- the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
- considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.
- [23]The Appellant's only explanation for the substantial delay was that he did not know, and the Respondent did not inform him, that he could have appealed the 19 December Decision. I accept the Respondent's submission that ignorance of the statutory limitation period is not an acceptable reason for a delay such that might warrant an extension of time. I also accept the Respondent's submission that there was no obligation to advise the Appellant of appeal rights or limitation periods in the 19 December Decision. I consequently find that the Appellant provides no acceptable explanation for the delay in this case.
- [24]There is no evidence before me to show that there were any steps to challenge the 19 December Decision until now. I cannot find therefore that the Appellant has taken action that explains why he delayed appealing the 19 December Decision.
- [25]The Appellant would suffer prejudice if an extension of time to appeal the 19 December Decision were not granted because he would not be able to appeal that decision. However, the Respondent would suffer prejudice in having to defend an appeal of a decision that Parliament has determined the Respondent was entitled to consider was no longer actionable.
- [26]I also accept the Respondent's submissions that the Appellant's case has poor prospects. The Respondent has afforded the Appellant more than enough time, information and opportunities to understand and respond to the allegations against him. The Respondent has also been clear that it was suspending the Appellant because it believed he was liable to discipline under a disciplinary law. It is clear to me that the Respondent afforded the Appellant procedural fairness.
Being liable to discipline
- [27]The parties have raised the issue of what it means to form a reasonable belief that the Appellant was liable to discipline under a disciplinary law. Being "liable" at law is not a particularly new concept but it has a varied judicial interpretation due largely to the context within which the word appears in a relevant statute. Recently, in He v Secretary, Department of Education, Skills and Employment ('He'),[13] her Honour, Justice Collier, considered the meaning of the word "liable" and referred to several cases. He involved consideration of tax legislation relevantly providing for liability to pay childcare session fees. Some of the case her Honour referred to included:
- O'Keefe v Calwell,[14] where the High Court dealt with migration legislation concerning non-citizens being liable to prohibition from remaining in Australia if they failed a dictation test. A majority of Court held that context is key to construing the word "liable". In that case it was held that the plaintiff would first have to fail the dictation test before she would be liable within the meaning of the relevant provision[15] His Honour, Justice Williams, reasoned:[16]
The ordinary natural grammatical meaning of a person being liable to some penalty or prohibition is that the event has occurred which will enable the penalty or prohibition to be enforced, but that it still lies within the discretion of some authorized person to decide whether or not to proceed with the enforcement… The word “liable” is sometimes used in the sense of exposure to liability, but this is not the ordinary natural grammatical meaning of the word. It would require a context to give the word this meaning…
- Littlewood v George Wimpey & Co Ltd and British Overseas Airways Corpn,[17] where Lord Justice Denning said:[18]
The critical question is: what is the meaning of the word “liable”? There are two rival views: one is that “liable” means “held liable.” According to this view a person is not liable for the damage unless and until he has had judgment entered against him. The other view is that “liable” means “responsible in law.” According to this view a person may be liable for the damage even though he has not been sued to judgment.
In my opinion, the ordinary meaning of the word “liable” in a legal context is to denote the fact that a person is responsible at law. Thus, when it is said… that a master is liable for the wrongdoing of his servant, that means that he is responsible for it in a court of law. It does not mean that he has actually been sued for it. Furthermore, a man may be “liable” in this sense even though the remedy against him is suspended or barred for some reason or other. The law of England is familiar with the concept of a liability which exists in the eye of the law, though it may not be enforceable by action. It is perhaps more familiar in contract than in tort. Everyone knows that a contract is good even though it may not be enforceable owing to the Statute of Frauds, and that a debt which is statute-barred is still a debt even though the debtor may, it sued, raise the Statute of Limitations. The same concept applies also in tort. Thus a thief is liable for his tort of conversion (which is also a felony) though he cannot be sued for it until he has been prosecuted… A diplomat is liable for a tort committed by him, although it is not enforceable against him if he claims diplomatic privilege… An injured party who has incurred hospital expenses which have not been paid and have become statute-barred, can recover them from a tortfeasor… A husband who has injured his wife by his negligence is guilty of a tort, but it is enforceable only against his master, not against the husband himself…
[W]e doubt whether we should have noticed that the word “liable” may be used… in two different meanings, i.e. first, in the natural sense in which it is equivalent to answerable or responsible, and, secondly, with the meaning of “adjudged liable.” The dictionaries do not agree on the derivation of “liable” (or “lyable”) from “ligabilis” … but we think that they agree that the primary meaning (in law) is “that can be bound.” In this context, however, where the legislature is dealing with “proceedings against and contributions between tort-feasors,” the meaning is rather narrower than that. A person “liable” is one “who can be compelled to pay by using the due process of law.” In other words, as “vulnerable” means “who can be wounded if attacked,” so “liable” means “who can be bound if sued” or, to speak more accurately, “who can be compelled to pay by taking such steps as may be or remain necessary to obtain and enforce the judgment of a court of justice.” In this sense it seems to us that “liable” comprehends the state of a wrongdoer from the time of the fault committed to the point at which his liability is established and quantified by the judgment, and, beyond that, to the point at which it is discharged whether by release or payment or otherwise, as by lapse of time. The context may show that some other meaning is intended, but this is, we think, the natural meaning.
- Tickle Industries Pty Ltd v Hann ('Tickle'),[21] where his Honour, Chief Justice Barwick, with his Honour Justice McTiernan J agreeing, made the following observations:[22]
The use of the word "liable" can cause difficulty in construction because of the various senses in which the word is or has been from time to time employed. The word takes its particular significance, however, from the context in which it appears and the subject matter and evident policy of the legislation in which it is found…
However, I have derived no specific benefit or guidance from these various discussions [in previous cases] so far as they relate to the meaning to be attributed to the word [liable] in the context of the Compensation Ordinance… Perhaps, to some degree, all of these cases illustrate the fundamental consideration that the word "liable", being a word of variable meaning, must take its meaning from the context in which it is used…
- Equuscorp Pty Ltd v Short Punch & Greatorix ('Equuscorp'),[23] where his Honour, Chief Justice de Jersey, said "the words “liable to pay” … carry their usual meaning, “responsible in law” and a person liable to pay is “a person against whom payment of the (costs) can be enforced…".[24]
- [28]
The interpretation of “liable” as being synonymous with “responsible at law” was accepted by de Jersey CJ in Equuscorp. It is also consistent with the construction of “liable” in contexts other than claims referable to lawyers’ bills of costs, including claims in tort… and taxation… In my view that interpretation is the appropriate construction for the word “liable” in s 44(1)(c) of the New Tax Act.
- [29]In light of those authorities, I conclude that the word "liable" should be construed applying the ordinary natural grammatical meaning to the word of being "responsible at law". The word may change its meaning in the context.[26] Depending on context, it can also mean a person who has been sued to judgment,[27] or merely a person who is exposed to being sued.[28]
- [30]Put a different way, for a person to be "liable" means that an event has happened that exposes that person to a legal consequence. A legal consequence is any order or finding made by a court, tribunal, or body empowered to make those orders or findings should action be taken. Being exposed to a legal consequence means there must be a rational and logical link between the relevant event and the purported legal consequence. But how broadly the word "liable" ought to be construed depends on what the relevant event is. An event can be anything from a final judgment, to a judgment that falls short of final judgment, to a finding of fact that is untested by a court or tribunal, or even an allegation of wrongdoing. The breadth of things that can be triggering events that expose a person to a legal consequence means that the word "liable" is transitively given to a diversity of interpretations. Consequently, the word "liable" is a chameleon that colours itself from the context in which it is found.
- [31]The primary source of context here is the statute itself. Subsection 91(1) provides grounds for discipline where the relevant chief executive is satisfied that the employee engaged in misconduct. Subsection 91(5)(b) relevantly defines misconduct in this case as inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the employing public sector entity.
- [32]The threshold for enlivening the power to suspend is different to that for imposing discipline. Relevantly, under to section 101(1), in order to suspend, the relevant chief executive need not be satisfied that the employee has actually engaged in misconduct. Rather, they only need to hold a reasonable belief that they have engaged in conduct, which if proven, would constitute misconduct.
- [33]I am therefore of the view that "liable" should be construed broadly within the context of section 101(1)(a) of the PS Act. The legal consequence is discipline under a disciplinary law, and so the event triggering exposure to that legal consequence must be something that is rationally and logically connected to a potential finding of discipline under a disciplinary law. The scheme underpinning the power to suspend under section 101(1)(a) clearly contemplates that the event creating exposure to a discipline under a disciplinary act can be something as slight as an allegation of wrongdoing. Sections 101 and 91 provide for suspension occurring before any findings are made, or indeed any substantial investigation has occurred.
- [34]In the present case, I conclude that the power to suspend under section 101(1)(a) was enlivened once the relevant chief executive formed a reasonable belief that, if the allegations were proven, then the chief executive would be satisfied that the Appellant engaged in misconduct. As the definition of liable in this context permits mere allegations to create liability, there need not be a finding of any wrongdoing at that point for an employee to be "liable" to discipline. All that is needed is a reasonable belief that there are allegations that exposed the Appellant to discipline under a disciplinary law. In my view, a charge on indictment for crimes involving child exploitation material, coupled with information gained at the time by the chief executive in this case, constituted sufficient basis upon which to form such a belief. That does not mean, in the case of criminal charges, that the relevant employee must be convicted before they are liable to being disciplined. Such an employee may still be disciplined even if a criminal charge results in an acquittal. A failure by the Crown to overcome the high burden of proving beyond reasonable doubt still leaves open the conclusion by an employer that misconduct occurred on the balance of probabilities. That state of being liable to discipline continues from the time of the alleged acts up to point where a finding of wrongdoing has been made, and beyond.
Conclusions on the 19 December Decision
- [35]In the circumstances, it is not hard to see how the chief executive of the Respondent could form a reasonable belief that the Appellant was exposed to discipline for engaging in inappropriate or improper conduct in a private capacity that reflected seriously and adversely on the employing entity. The Appellant had been charged with serious offences relating to child exploitation material and had been deregistered by the OHO as a consequence of the charges. In those circumstances, it was reasonable for the chief executive to form the belief that an event had occurred in the form of a genuine allegation of wrongdoing, which exposed the Appellant to legal consequences, and that the Appellant was therefore liable to discipline under a disciplinary law.
- [36]On my assessment, the Respondent afforded the Appellant procedural and substantive fairness at all relevant times. The alleged lack of procedural fairness is the central argument of the Appellant's challenge to the 19 December Decision. In those circumstances, as best one can garner an impression of prospects at an early vantage point such as this, and to the extent that an assessment of prospects is relevant to an extension of time application, I would agree with the Respondent's submissions on this point. The Appellant's prospects of establishing that the 19 December Decision was not fair and reasonable are poor.
- [37]There were no submissions specifically addressing fairness as between the Appellant and other persons in a like position regarding the extension of time issue. It is worthy to note, however, that the Respondent, in support of its submissions regarding explanation for delay, identified the case of Duck v State of Queensland (Education Queensland) (‘Duck’).[29] I am also assisted by the Respondent's submission citing other cases where it was held that ignorance of a statutory limitation period is not an acceptable reason for delay.[30] In Duck, Industrial Commissioner Pidgeon refused an extension of time application where the matter was filed out of time for the same reason the Appellant cites in this case – not being aware of appeal rights and the associated limitation period. It would be unfair to the appellant in Duck, and appellants in similar cases,[31] to grant the Appellant more time where others were refused an extension of time in much the same circumstances.
- [38]To the extent that this appeal seeks to appeal the 19 December Decision, there is no acceptable explanation for the delay and such an appeal has poor prospects. Granting extra time would also be unfair to others whose extension of time applications were refused on the basis that their ignorance of appeal rights and limitation periods did not constitute an acceptable explanation for the delay. Accordingly, to the extent that the Appellant’s submissions amount to an application for an extension of time to appeal the 19 December Decision, that application is refused.
Should the Commission refuse to deal with the matter pursuant to s 562A?
- [39]The Respondent argues in its submissions that the Commission should refuse to hear the matter on the basis that it is misconceived and lacking substance. However, to do so, the Commission must first seek submissions from the Appellant as to whether he has an arguable case for the appeal. That has not occurred in this case. Accordingly, I am not prepared to consider whether the appeal should be subject to an exercise of the discretion within s 562A(3)(b).
The Decision
- [40]The impugned conclusion of the Decision is the Respondent's determination to suspend the Appellant without pay. As the Respondent points out, that conclusion came after a show cause process during which the Appellant had ample opportunity to, and actually did, address the proposed course of action. I do not see any procedural shortcomings in the Respondent’s process. I find that it was a fair and reasonable process underpinning the Decision.
- [41]The decision to suspend without pay was the result of careful consideration, all of which was set out in the Decision. The primary consideration was the fact that the Appellant had, at the time, been suspended on full pay for 15 months and the charges had not apparently progressed, let alone finalised. No end was in sight either. The Decision also had regard to Directive 06/23 – Suspension ('Directive 06/23'). The Decision set out several of the key considerations of that Directive, including the nature of the discipline matter, any factors that are not within the control of the agency that are prevailing and preventing the timely conclusion of the disciplinary process and the public interest of the employee remaining on suspension with pay. Each one of those considerations was the subject of detailed discussion by the decision-maker before she reached a conclusion.
- [42]Directive 06/23, at clause 8.2(a), describes one of the considerations a chief executive should have regard to when suspending an employee without remuneration (my emphasis):
8.2 Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
- there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
- [43]Clause 8.2(a) of Directive 06/23 clearly contemplates that an employee may be suspended without pay even where there are unproven criminal charges and the disciplinary process has been consequently put on hold. It therefore contemplates that actual wrongdoing need not be proven before a chief executive can suspend an employee without pay.
- [44]Under the heading "The nature of the discipline matter", the decision-maker summarised the nature of the criminal charges and noted that Directive 06/23 expressly contemplated circumstances where an employee charged with criminal offences constituted grounds for a suspension without pay. The decision-maker reasoned that the fact that Queensland Police Service had a reasonable suspicion that an employee had engaged in criminal activity justified the decision-maker forming a reasonable belief that the employee may be liable to discipline. The decision-maker further said that she not only relied on the fact that the Appellant had been charged with criminal offences, but also the fact that the charges were serious and that the conduct, if proven, would reflect seriously and adversely on the public service. The decision-maker concluded that it was open to her to form the reasonable belief that the Appellant was liable to discipline because the Appellant may be liable to discipline if the charges are proven. I find that to be a conclusion that was well-reasoned and open to the decision-maker to draw.
- [45]The decision-maker acknowledged that the Appellant had not been found guilty of the criminal charges. However, the decision-maker observed that the reasonable belief of liability to being disciplined is not based on the fact that any adverse findings have been made against the Appellant. As discussed above, that was the correct approach in my view. It was open to the decision-maker to take that approach.
- [46]Under the heading of "Any factors not within the control of the department that are preventing the timely conclusion of the disciplinary process", the decision-maker referred to the long process relating to the criminal proceedings and the fact that no end was in sight. The decision-maker referred to proceedings in the District Court and the Magistrates Court and that a mention of the matter was set down for 14 February 2024 where the matter was adjourned until 10 April 2024. The decision-maker noted that it had been over 15 months since the charges had first been laid and observed that the matter had not significantly progressed since then. The decision-maker observed that this was a relevant factor for her to consider. I agree. This too was a conclusion that was open to the decision-maker to reach in the circumstances.
- [47]The Respondent submitted that it was not in a position to be able to commence any departmental disciplinary process until the criminal matter was finalised. After 15 months of suspension on full pay, the Respondent submitted that there was no telling when that might be. The decision-maker also observed that the Respondent had no control over the length of the criminal proceedings and that it was the Respondent's statutory obligation to manage public resources efficiently, effectively and economically and that that was a factor that must be taken into account when deciding whether the Appellant should be suspended without pay. I agree. That is a well-reasoned conclusion that was open to the decision-maker to reach.
- [48]The decision-maker also noted that it was relevant that the Appellant was not able to practice paramedicine because his Australian Health Practitioners Registration Authority ('AHPRA') registration had been suspended and AHPRA had advised the Appellant that he could not practice in Australia. The decision-maker concluded that the Appellant was prohibited from working in the job which he was currently employed and prohibited also from working in any other non-clinical role within the Respondent. That too was noted as a process that was beyond Respondent's control because it was a decision by AHPRA, not the Respondent, to disentitle the Appellant from being able to practice as a paramedic pending the outcome of the criminal process. No fault can be found with that reasoning.
- [49]Under the heading of "The public interest of the employee remaining on suspension with remuneration", the decision-maker noted the Appellant's submissions concerning financial hardship that he was likely to suffer if suspended without pay. However, the decision-maker reasoned that it was an inappropriate use of public money for the Appellant to remain on remuneration in light of the seriousness of the charges. The decision-maker also reasoned that public confidence would be diminished by keeping the Appellant on remuneration when the Appellant's name has been associated with the Respondent in public articles about the Appellant making, possessing and distributing child exploitation material. This is sound reasoning in my view.
- [50]The decision-maker also noted that if the process resulted in an acquittal, and any disciplinary process did not result in termination, the Appellant would be reimbursed for any loss of remuneration during the period of suspension without pay. As well, the decision-maker observed that the Appellant was not prevented from earning an income in some other capacity whilst this process took its course. Conversely, the decision-maker reasoned that if the Appellant was not suspended without pay, and was ultimately disciplined, the Respondent would not be able to recover the remuneration paid to the Appellant. That consideration was clearly had in regard to the Respondent’s financial responsibilities as to the efficient and proper use of public money, which was an entirely appropriate consideration.
- [51]On my assessment, it is immediately obvious to me that each of those conclusions was open to be drawn by the decision-maker based on the material she had before her. The nature of the criminal charges and the Queensland Police Service's reasonable suspicion self-evidently invites a fair and reasonable conclusion that the Appellant was liable to discipline. It was also open to the decision-maker to find that the prolonged prosecution of criminal charges that had no clear end date in sight was preventing the discipline process from progressing. It was relevant to consider that AHPRA had deregistered the Appellant, which rendered him unable to practice paramedicine or perform non-clinical work. It was also open to decision-maker to find that it was an inappropriate use of public money to continue the paid suspension in the circumstances because it may undermine public confidence in the Respondent. It was also relevant to consider that the Appellant would be entitled to backpay if the discipline process did not lead to dismissal and, conversely, that the Respondent could not recover the cost of a suspension on pay if dismissal were the outcome. Each consideration and finding was fair and reasonable on my assessment. So too the overall conclusion deciding to suspend the Appellant without pay. I therefore find the Decision to be fair and reasonable.
- [52]I order accordingly.
Order
- The appeal is dismissed.
- The Decision is confirmed.
Footnotes
[1] Public Sector Act 2022 (Qld) as passed by Parliament, s 333 ('PS Act').
[2] [2023] QIRC 334 ('Roche').
[3] Roche (n 2) [68]-[83].
[4] Industrial Relations Act 2016 (Qld) s 562B ('IR Act').
[5] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162, [31], citing Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, [37].
[6] [2024] QIRC 69 ('Tollesson').
[7] Citing Duck v State of Queensland (Department of Education) [2022] QIRC 347, [26]-[30] ('Duck').
[8] Ibid.
[9] citing PS Act (n 1) s 101(10).
[10] [2022] QIRC 154, [36], [39].
[11] [2021] QIRC 395, [19].
[12] [1984] FCA 176.
[13] [2024] FCA 819.
[14] (1949) 77 CLR 261, 295 ('O'Keefe').
[15] Ibid 281-282, 290, 295-298.
[16] Citations omitted.
[17] [1953] 2 QB 501 ('Littlewood').
[18] Ibid 515-517; citations omitted.
[19] [1956] SASR 10 ('Hall'), approved in Deputy Commissioner of Taxation (Cth) v Moorebank Pty Ltd [1987] 1 Qd R 414.
[20] Ibid 15-16.
[21] [1974] 130 CLR 321 ('Tickle').
[22] Ibid 330-332.
[23] [2001] 2 Qd R 580.
[24] Ibid [10]; citations omitted.
[25] Ibid [53]; citations omitted.
[26] O'Keefe (n 14) 295; Littlewood (n 17) 515-517; Hall (n 19) 15-16; Tickle (n 21) [35], [41].
[27] Littlewood (n 17) 515-517; Hall (n 19) 15-16; Tickle (n 21) [35], [41].
[28] O'Keefe (n 14) 295; Hall (n 19) 15-16.
[29] Duck (n 7) [26]-[30].
[30] A1 Rubber (Aus) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16, [3]; Saba v State of Queensland (Department of Education) [2022] QIRC 384, [42]–[44]; Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 97, [46].
[31] Ibid.