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AB v State of Queensland (Department of Education)[2024] QIRC 49

AB v State of Queensland (Department of Education)[2024] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

AB v State of Queensland (Department of Education) [2024] QIRC 049

PARTIES:

AB

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/238

PROCEEDING:

Public Sector Appeal – Suspension without pay decision

DELIVERED ON:

26 February 2024

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a suspension without pay decision  – appellant employed by the respondent as an Experienced Senior Teacher – where the appellant is the subject of criminal charges incurred in a private capacity – where the appellant is the subject of an allegation that they behaved in an inappropriate manner towards a school student – where the appellant is suspended without pay until 17 May 2024 unless the respondent cancels the suspension without pay period earlier – whether the decision is fair and reasonable – decision appealed against confirmed

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – application in existing proceedings for de-identification of personal information and suppression from search and copy  – where the respondent does not oppose the application – consideration of circumstances where the Commission may exercise discretion to remove a decision from publication or suppress the name of a party or evidence – application for suppression order granted

LEGISLATION AND OTHERINSTRUMENTS:

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

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97

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

Suspension Directive (Directive 06/23) cls 8, 10

CASES:

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

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

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

Reasons for Decision

Introduction

  1. [1]
    AB (‘the Appellant’) has been employed by the State of Queensland (Department of Education) (‘the Respondent’) since February 2007 and is currently engaged as a permanent Experienced Senior Teacher at a state school.
  1. [2]
    AB appeals the decision of Ms Rachel Borger, Acting Assistant Director-General, Department of Education dated 20 November 2023 to suspend AB without normal remuneration pursuant to the Public Sector Act 2022 (Qld) ss 101(1)(a) and 101(4) (‘the PS Act’). The period during which this decision applies is 20 November 2023, the date of the decision letter, until 17 May 2024, unless the Department otherwise exercises its discretion to cancel the suspension without pay period earlier.

Application for suppression of certain identifying information

  1. [3]
    Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) affords a power to de-identify judgments or redact information before publication where the Commission considers it appropriate in the public interest or for another reason and the modification of the document does not affect the essence of the document. Prior to release of the decision, at a telephone mention of the matter, the Appellant made an oral application for suppression of their name and any identifying details regarding their workplace or location. The Respondent supported the application. I am satisfied that suppression of these details would act to prevent the identification of a person who was a child and enrolled at the school at the time of the alleged conduct.[1] I am further satisfied that in circumstances where there are criminal proceedings ongoing at the time this appeal is being heard, that it is appropriate to order suppression to avoid prejudice to the administration of justice.[2]  The suppression of this information does not affect the essence of the document. I ordered suppression of the Appellant’s name and any information identifying their workplace or location pursuant to r 97(3)(b). I further ordered suppression of the contents of the file from search and copy pursuant to r 97(3)(a).

Appeal principles

  1. [4]
    Section 562B(3) of the Industrial Relations Act 2016 (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that ‘the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable’.
  1. [5]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [6]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [7]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative framework and other instruments

The PS Act

  1. [8]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(f) provides that an appeal may be made against a suspension without pay decision.
  1. [9]
    The Respondent suspended AB without remuneration pursuant to s 101 of the PS Act which relevantly provides:

101  Suspension

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

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

  • alternative duties
  • a change in the location where the employee performs duties
  • another alternative working arrangement
  1. The employee is entitled to normal remuneration for the period of the suspension, unless—
  1. the employee is suspended under subsection (1)(a); and
  1. the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.

 …

  1. In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  1. Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
  1. [10]
    Section 91 of the PS Act sets out the grounds for discipline and relevantly states:

91 Grounds for discipline

  1. A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. been guilty of misconduct; or
  3. been absent from duty without approved leave and without reasonable excuse; or
  4. contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  5. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee’s employment or secondment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  1. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of—
  1. this Act, other than section 39 or 40; or
  1. another Act that applies to the employee in relation to the employee’s employment; or
  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.
  1. To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  1. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  1. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee’s employment in the public sector

relevant standard of conduct —

  1. for a public sector employee, means—
  1. a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  1. for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

The Directive

  1. [11]
    While all of the provisions of Suspension (Directive 06/23) (‘the Directive’) have been considered, particular attention is paid to the following clause:

8.  Suspension without remuneration

  1. 8.1
    A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a) . This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
  2. 8.2
    Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
  1. 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.

AB’s reasons for appeal

  1. [12]
    AB filed their appeal on 8 December 2023.
  1. [13]
    At the outset, AB explains that they have been charged with an offence that relates to allegations made against them by a student at their school. They say further that they have been subject of three other offences ‘which have already been dealt with by the courts, and no conviction recorded’. AB says that no indictment has been presented on the remaining charge.
  1. [14]
    AB submits that the Department has decided to suspend them without pay due to the nature of the allegations and not because of the existence of any evidence. AB says, ‘the mere fact that I have been charged with offences is insufficient grounds for the Department to suspend me without remuneration’.
  1. [15]
    AB acknowledges that the allegations arise directly out of their employment as a teacher, though they deny them.

Respondent’s submissions

Chronology of events

  1. [16]
    The Respondent says that on 15 May 2023, the Department received a complaint from a parent that AB had engaged in inappropriate interactions with a Year 12 student. That same day, the Head of School made an ‘SP3 report’ which automatically referred the complaint to the Queensland Police Service (‘QPS’). The Respondent explains that an SP3 notification must be made when a report or complaint relates to suspected sexual abuse or where, based on the available information, it is likely that a student could be sexually abused by an employee. Behaviour and/or conduct which could amount to grooming must be reported.
  1. [17]
    The Respondent submits that the 15 May 2023 complaint involves an allegation that AB acted in an inappropriate manner towards the student by showing them a naked photograph of a woman, asking if it was the student, and then commenting on the student’s breast size.
  1. [18]
    On 22 May 2023, Ms Borger who was then the Executive Director of Integrity and Employee Relations People, wrote to AB to advise them that the Department was aware of a ‘concern’ raised in relation to their conduct with a student.[3] Ms Borger placed AB on alternative duties effective upon receipt of the letter in the Regional Office and at home under direct supervision.
  1. [19]
    The Respondent further submits that on 6 September 2023, AB was charged with the following criminal offences:

a.  one count of ‘Unlawful stalking’ under s 349E(1) of the Criminal Code Act 1899 (Code);

b.  one count of ‘Possessing dangerous drugs’ pursuant to s 9(1) of the Drugs Misuse Act 1986 (DMA);

c.  one count of ‘Possess utensils or pipes etc that had been used’ pursuant to s 10(2)(b) of the DMA; and

d.  one count of an offence related to the ‘Secure storage of weapons’ pursuant to s 60(1) of the Weapons Act 1990.

  1. [20]
    The Respondent says that the firearm and drug charges were made in relation to actions taken by AB in a private capacity. The Respondent submits that AB was guilty of the offences and the charges resolved on 19 September 2023 with no conviction recorded, a payment of a fine, and the forfeiture of drug-related property.
  1. [21]
    In addition, the Respondent submits that the charge of unlawful stalking arises from AB’s conduct towards a Year 12 student of the school and the charge remains unresolved. The date range of the unlawful stalking charge is between 22 January 2023 and 11 May 2023, and the Respondent says that it includes a number of alleged incidents.
  1. [22]
    The Respondent says that notably, ‘the allegation of unlawful stalking is materially factually different from the nature of the concerns which resulted in [AB] being placed in alternative duties in May 2023, which was limited to a single reported incident’.
  1. [23]
    Ms Borger subsequently wrote to AB again on 3 October 2023 to advise them that the Department had been made aware of the four charges made against them on 6 September 2023. AB was suspended from duty on normal remuneration and given seven days to show cause why they should not be suspended from duty without pay.
  1. [24]
    The Queensland College of Teachers (‘QCT’) suspended AB’s registration as a teacher on 13 October 2023.
  1. [25]
    AB then provided their show cause response on 16 October 2023 through their legal representatives at Holding Redlich.
  1. [26]
    On 20 November 2023, Ms Borger advised AB of her decision to suspend them without remuneration.

The Respondent says the decision is fair and reasonable

  1. [27]
    The Respondent says that Ms Borger’s decision to suspend AB without pay was fair and reasonable, and that Ms Borger provided comprehensive reasons for her decision. In addition, the Respondent submits that the decision was procedurally fair and AB was afforded an opportunity to respond before any decision was made. The Respondent also submits that Ms Borger gave proper consideration to AB’s human rights, and explained the possible limitations to AB’s human rights as a result of the decision and why those limitations were deemed permissible.
  1. [28]
    The Respondent’s submissions then address why it says that Ms Borger’s decision complied with the PS Act and Suspension (Directive 06/23), in that the decision-maker held a reasonable belief that AB was liable to discipline and there were appropriate circumstances to suspend AB without remuneration.

Reasonable belief that the Appellant is liable to discipline

  1. [29]
    Firstly, the Respondent’s submissions address ss 101(1)(a) and 101(4) of the PS Act.
  1. [30]
    The Respondent says that s 101(1)(a) of the PS Act provides that the chief executive may suspend an employee from duty if they ‘reasonably believe’ the employee is ‘liable to discipline under a disciplinary law’. Further, s 101(4) of the PS Act enables the chief executive to suspend an employee without normal remuneration where they consider suspension with remuneration not appropriate, ‘having regard to the nature of the discipline to which the chief executive believes the employee is liable’.
  1. [31]
    Importantly, the Respondent says that the phrase ‘liable to discipline’ in s 101(1)(a) of the PS Act does not mean that Ms Borger must have found that AB engaged in the alleged conduct. Rather, s 101(1)(a) of the PS Act refers to the chief executive holding a ‘reasonable belief’ that the employee is liable to discipline under a disciplinary law.[4] A positive finding that circumstances exist that assume disciplinary action will be taken is not required.[5] Instead, the phrase ‘liable to discipline’ should be read to mean ‘subject to the possibility of discipline’.
  1. [32]
    Therefore, the Respondent says that it was open to Ms Borger, in consideration of the evidence before her,[6] to hold a reasonable belief that in the event AB is ultimately found guilty of the unlawful stalking charge, grounds for discipline would potentially arise. Specifically, a finding of misconduct might arise within the meaning of ss 91(1)(b) and 91(5) of the PS Act.
  1. [33]
    Similarly, the Respondent contends that it was open to Ms Borger to hold the reasonable belief that the outcome of the firearm and drug charges would establish potential grounds for discipline through a finding of misconduct pursuant to ss 91(1)(b) and 91(5) of the PS Act.
  1. [34]
    The Respondent argues that while no conviction was recorded in respect of the firearm and drug charges, and the unlawful stalking charge remains unresolved, this does not go to whether it was fair and reasonable for Ms Borger to suspend AB without remuneration.[7] The Respondent elaborates on this by citing Industrial Commissioner Hartigan (as her Honour then was) in BR v State of Queensland (No. 2):

A determination that the Appellant is ‘liable to discipline under a disciplinary law’ is distinct from a determination that the Appellant is guilty of the alleged offences. The decision does not seek to interfere with the Appellant's right to be presumed innocent until proven guilty according to law.[8]

  1. [35]
    The Respondent says that the decision is fair and reasonable as Ms Borger acknowledged AB’s right to the presumption of innocence, did not form a view as to the veracity of the allegations, and no adverse finding or determination was made in relation to the allegations subject of the criminal charges.
  1. [36]
    In addition, the Respondent says that Ms Borger was required to consider the nature of the discipline to which she reasonably believed AB was liable.[9] The Respondent explains that AB is a teacher, and with that comes the expectation to uphold a high standard of professional and ethical behaviour. AB must ensure the wellbeing and safety of children in attendance at the school.
  1. [37]
    The Respondent further notes that AB’s alleged conduct subject of the unlawful stalking charge is said to have been committed against a student of the school during AB’s engagement as a teacher at the school. Therefore, the Respondent considers that the nature of the conduct is serious. If the allegation is ultimately substantiated, the Respondent says AB ‘would be liable to serious disciplinary action’.

Appropriate circumstances to suspend without remuneration

  1. [38]
    Next, the Respondent addresses Ms Borger’s consideration of Directive 06/23. The Respondent says that Ms Borger considered cl 8 which deals with suspension without remuneration.
  1. [39]
    The Respondent says that cl 8 requires a chief executive to consider, firstly, whether there are factors beyond the control of the agency preventing the timely conclusion of the disciplinary process. For example, where there are outstanding criminal charges and the disciplinary process is pending based on the outcome of those charges. Secondly, the chief executive must consider whether it is otherwise fair and reasonable to suspend the employee without remuneration considering the financial impact to the employee and the broader public interest.
  1. [40]
    The Respondent says that Ms Borger expressly considered these factors in her decision to suspend AB without remuneration. The primary consideration, according to the Respondent, is the protracted nature of the criminal proceedings. The Respondent notes that the stalking charge is yet to be heard before the court and it says given AB’s denial of the allegations, it is likely that the proceedings will not be finalised for some time. The Respondent submits that this is a factor beyond the Department’s control and will inevitably delay any discipline process.
  1. [41]
    The Respondent notes that in Thomson v State of Queensland (Department of Education) (‘Thomson’),[10] McLennan IC said that ‘Fairness and reasonability dictate that, in this instance, greater weight should be placed on the ‘financial impact’ of any decision to suspend the Appellant without pay’.[11] However, the Respondent distinguishes AB’s circumstances to those in Thomson where the appellant was acquitted of an allegation of historical indecent assault of a student six months prior to the Department’s decision to suspend them without remuneration. In Thomson, McLennan IC held that the Department had not given adequate consideration to alternative duties the appellant could perform when assessing the financial impact to them.
  1. [42]
    On the other hand, the Respondent says that Ms Borger took a similar approach to the decision-maker of the decision appealed in Baskin v State of Queensland (Department of Education)[12] by consulting the relevant officers of the Department about AB undertaking alternative duties, namely being transferred or working in some other alternative arrangements. The Department recorded this consultation and it was provided to Ms Borger.[13]
  1. [43]
    The Respondent submits that while AB was initially directed to perform alternative duties from home on 22 May 2023, they were not allocated any work. The Department had originally identified that the school had a need for curriculum writing for three to six months, however AB did not have the knowledge or skills for this work. Operationally, the school could not accommodate the upskilling and supervision of AB to enable them to perform this work. It ultimately became unfeasible for AB to perform alternative duties after QPS removed their laptop on 29 August 2023.
  1. [44]
    The Respondent says that it was sound and justifiable for Ms Borger to consider it inappropriate for AB to be placed on alternative duties within the Department given the seriousness of the criminal charges and the suspension of their teacher registration. The Respondent submits that continuing AB’s alternative duties would not be within the public interest or withstand public scrutiny.
  1. [45]
    To further support Ms Borger’s decision against assigning alternative duties, the Respondent notes that the further criminal charge of unlawful stalking was materially and factually different to the concerns which formed the basis of the 22 May 2023 decision in the first place.
  1. [46]
    According to the Respondent, Ms Borger had regard to the QPS Court Brief of 19 September 2023 which summarised the facts and circumstances of the charge, including the findings of a search warrant and forensic examination of AB’s electronic device history. No findings were made by Ms Borger regarding the charge. However, the Respondent says that the risk posed by the circumstances of the charge, namely that the conduct involved a student of the school, justifies the suspension of AB without remuneration.
  1. [47]
    The Respondent says Ms Borger’s decision is in the public interest. It says public sector employees, and especially teachers, are held to a high standard of conduct. At a minimum, this involves an expectation of appropriate behaviour and not becoming the subject of criminal charges which prevent an employee from performing their duties. If made out, the charge is ‘wholly inconsistent with [AB]’s obligation to maintain the standard expected of [them] and contrary to the Department’s expectations of an employee in that role’.
  1. [48]
    Given these expectations, the Respondent says that it is incumbent on public agencies to take appropriate action and manage circumstances like these in the interests of students, staff and members of the public. The Respondent points out that the unlawful stalking charge directly involves a child at a state school and poses an immediate risk to the wellbeing of students. Therefore, the Respondent says that Ms Borger’s decision to suspend AB without pay is in line with community expectations.
  1. [49]
    The Respondent accepts that AB is impacted financially by the decision. However, the Respondent is of the view that this is offset by the broader public interest. The Respondent says it was open to Ms Borger to consider that it would be inappropriate to use public funds for AB to remain on paid suspension until the unlawful stalking charge is resolved.
  1. [50]
    The Respondent also says that AB can access their available leave entitlements or seek employment outside of the Department during the suspension period.
  1. [51]
    Finally, the Respondent says that if the allegation is not substantiated and AB does not end up being terminated on disciplinary grounds, they will be reimbursed for any loss of remuneration during the suspension period.
  1. [52]
    Ultimately, the Respondent argues that Ms Borger’s decision is fair and reasonable in the circumstances and ought to be upheld.

AB’s submissions

  1. [53]
    AB’s submissions respond to those of the Respondent set out above.
  1. [54]
    In summary, AB denies the allegation subject of the unlawful stalking charge pertaining to a school student. AB is strongly of the view that as they have not been found guilty of the offence, it was unfair and unreasonable for Ms Borger to suspend them without pay. AB submits that they could perform alternative duties for the Department and they have not been granted procedural fairness or a ‘non-biased, fair hearing’. AB also says the decision has come at a great personal cost to them.

AB denies the allegation

  1. [55]
    Firstly, AB denies the allegation and perceives the decision as an inappropriate determination of their guilt by the Department. AB says that they await their day in court to defend the allegation against them. AB submits there is ‘no prima facie case’ against them and there is no foundation to show or prove that they are guilty of the unlawful stalking charge beyond a reasonable doubt. AB further submits that the accusation remains an allegation that neither the Respondent nor the police can substantiate.
  1. [56]
    AB argues that Ms Borger’s decision on the evidence before her, including the QP9 and ‘court documents dated the 19th of September’, amounts to a presumption of their guilt before they have been afforded the opportunity to defend themself. AB believes Ms Borger has assumed the outcome of the charges and says, ‘I was not aware that Ms Borger was a judge and able to therefore judge me guilty or not guilty of this alleged accusation against myself’. AB also notes that in terms of the ‘court documents dated the 19th of September’, ‘Ms Borger was not present in the court on that date to hear the QPS state that they would have all the required information to proceed by the next hearing date’.
  1. [57]
    AB further contends that by suspending them without remuneration, the Respondent has treated them as though they are guilty of the unlawful stalking charge. AB feels that they have been treated as ‘guilty the whole time’, a ‘non-biased fair hearing has not occurred’, and they have ‘not been granted procedural fairness’.
  1. [58]
    AB takes issue with being on suspension without pay in circumstances where Ms Borger says no findings have been made. According to AB, that there have been no findings is demonstrative of their innocence.
  1. [59]
    In addition, AB highlights that Ms Borger uses language in the decision letter such as ‘I come to the conclusion’, ‘presumed’, and ‘formed the sound view’. AB suggests that this language indicates bias against them. AB says the Department has presumed their guilt when they ‘should be afforded the right of innocence before guilt’. AB believes they have received an ‘accusation of guilt’ from the Department.
  1. [60]
    Overall, AB says that in suspending them without remuneration, the Department has not followed proper procedure to allow them a fair hearing.

Delays and procedural fairness

  1. [61]
    Secondly, AB says they have observed delays and a lack of procedural fairness in the process.

22 May 2023 decision letter and meeting on 29 May 2023

  1. [62]
    AB says that while the correspondence initially advising them of the concern raised regarding their conduct with a school student was dated 22 May 2023, they did not receive the letter until 29 May 2023 during a meeting with a representative from the Department, Person A, and a regional representative from the Queensland Teachers’ Union.
  1. [63]
    AB says that during this meeting, they were informed by Person A that the letter had been prepared a week prior to the meeting, however the timetable did not allow the meeting to occur until 29 May 2023. AB identifies this as an example of the Department’s delay in ‘dealing with this case’.

Communication during the process

  1. [64]
    During the meeting, AB says they were informed that a case worker from Head Office would contact them within three weeks and that both Person A and the school principal would otherwise be their points of contact during the process.
  1. [65]
    After four weeks of not hearing anything, AB says they called District Office. AB says the receptionist advised them that Person A would not speak with them during the process. AB submits that they later received calls from a staff member from the District Office, Person B, who said Person A would not speak with AB. AB said that Person B empathised with AB and said they knew how AB was feeling as they had been investigated as well.
  1. [66]
    AB says they contacted the school principal by phoning their mobile as requested. AB submits that when the school principal asked them to leave the school grounds, they handed AB their business card and said words to the effect of, ‘if you have any questions, just call me on my mobile number’. However, AB says that they tried to call the school principal a number of times but their calls went unanswered. AB says that they sent the school principal a text ‘in relation to the work’ and while the school principal said they would look into it, they did not get back to AB.

3 October 2023 decision letter

  1. [67]
    AB states that the decision letter dated 3 October 2023, whereby the Department advised them that it had become aware of the four charges made against them on 6 September 2023, arrived at their post office box on 3 October 2023. AB suggests this indicates that the letter had been ‘pre-dated before it was sent’. AB estimates that even if the letter was written and sent on the same day, it should have taken a minimum of two days for the letter to reach them.
  1. [68]
    AB says that upon notifying their legal representatives of the letter, their representatives wrote to the Department on their behalf stating that the dates on the Department’s correspondence appeared to be modified.

AB says that the police, prosecution and the Department are delaying the process

  1. [69]
    AB submits that the police, prosecution and the Department are ‘holding up’ the process. AB points to delays in court processes involving the criminal charge, namely that the prosecution has ‘consistently made excuses as to why they do not have the required evidence’ during the timeframe communicated to them. At the time of writing their submissions, AB said their next court date was 2 February 2024.
  1. [70]
    AB also says that the Department is ‘dragging this issue out’. While AB has been suspended, first with pay and later without pay, AB submits they have not been afforded any control over the process. AB would like the process to be sped up, and complains that, like the prosecution, the Department has made excuses as to why it has not held the required information. In AB’s view, ‘It would appear that it is not myself holding up the issue being resolved it is the education department and the prosecution’.
  1. [71]
    AB believes there have been consistent delays and excuses while they are ‘made to suffer’. AB reiterates that their case has not yet been heard and they have been cooperative throughout the process with ‘the department and QPS’, which has left them feeling as though delays continue through no fault of their own. For example, AB says they returned a certificate to the Queensland College of Teachers by registered post within the timeframe requested.

AB believes they could have performed alternative duties

  1. [72]
    Thirdly, AB contends that proper consideration was not given to alternative duties which they could perform.
  1. [73]
    AB says that the Department and school had originally agreed for them to perform alternative duties, writing curriculum while on suspension, and they were issued a laptop from District Office. However, AB notes that they were not given the login details for this device and they were not ‘supplied with anything’. AB says that they were told to work from home as there was no vacant desk at the District Office.
  1. [74]
    AB refutes the Respondent’s submissions that they were not knowledgeable or skilful enough to perform the curriculum writing project. AB explains that they were an Experienced Senior Teacher (Level 2), and in order to obtain this title, they wrote units and programs of work during their employment. AB contends that their status as an Experienced Senior Teacher (Level 2) was ‘signed off at each stage of progression by administration’ at the school. AB says that if the school did not feel they were competent of performing the day-to-day duties of a teacher at this level, they note the school executive still signed the paperwork which progressed them to the next level. AB therefore rejects the Respondent’s submission that they could not afford the expense to train them to become more competent.
  1. [75]
    AB provides the following submissions in support of their ability to write units and programs:
  • They have written units and programs at various schools, including as a subject coordinator where they rewrote the entire schoolwork program for the subjects they taught;
  • They have written units and programs for the school, and their work has been approved by the school principal, the Head of Department and the ‘RTO’ representative;
  • They have participated in group curriculum writing sessions with the Department’s representative at the school. AB says they school principal and executive principal were present at this session as they were writing the Department’s new curriculum in line with the upcoming curriculum; and
  • Their name is on documents saved on the school’s internal server demonstrating their work on those units and programs.
  1. [76]
    With this in mind, AB believes that they have the experience, skills, competency and ability to perform the curriculum writing project. AB suggests that the Department may have deviated from the Directive ‘as it was easier for the school to do nothing and then make the excuse that I was not capable or skilful enough to complete this task’.
  1. [77]
    AB also takes issue with their requests for performance development through their performance development plan (‘PDP’) having been previously rejected by the school. AB says that PDPs are required by the Department and are used by employees to show the school what professional training they would benefit from and what knowledge they would like to develop. They say this aids content and delivery, and ensures teachers have up-to-date industry skills. AB says the only professional development approved was curriculum writing.
  1. [78]
    In reply to the Respondent’s assertion that it was appropriate for AB to be suspended without remuneration, AB says that they could have performed alternative duties without contact with students. Therefore, AB says the Department’s position that they would pose a risk to students has no merit.
  1. [79]
    In response to the Respondent’s submission that AB could not perform alternative duties in circumstances where the police had removed their laptop on 29 August 2023, AB says that their laptop was returned to them by police very quickly. AB says their electronic hard drive was returned to them along with the Department’s laptop, which they say was returned to the Department via registered post.

Ability to obtain alternative employment

  1. [80]
    Next, AB argues that while the Respondent’s submissions state it was open to them to obtain alternative employment while on suspension, they were provided contradictory information from the Department. AB says they were told that obtaining another job could be a conflict of interest while they remain an employee of the Department of Education.

Personal cost to AB

  1. [81]
    AB submits that the decision has come at a great personal cost to them.
  1. [82]
    AB says that they were advised by Departmental employees ‘to make up stories to tell people as to why I was not teaching down in [redacted]’. They explain that they live 120 kilometres from the school and were driving over 1,000 kilometres every week for work, which they say demonstrates their dedication to the role. AB says they now find it hard to leave their home and venture into the small town where they live with a small population.
  1. [83]
    AB also submits that the decision to suspend them without remuneration has impacted their health and wellbeing, which they say has been confirmed to them by their doctor. In addition to suffering from stress and anxiety, AB says they are taking medication to alleviate the risk of experiencing a heart attack or stroke.
  1. [84]
    Further, AB says the decision is affecting their finances. AB says they are struggling to pay their mortgage, and being suspended without remuneration puts them at risk of losing their house and having nowhere to live. AB says they have nearly used up all of their savings on bills and the cost of living.
  1. [85]
    AB notes that the Respondent’s submissions focus not only on the financial impact on them, but also the broader public interest.

Reimbursement

  1. [86]
    AB is not comforted by the Respondent’s submission that in the event that the allegations are not substantiated and AB’s employment is not terminated on discipline grounds, they will be reimbursed for any loss of remuneration. They repeat that the allegations are just that, and nothing has been proven. AB says that even if they were reimbursed for any loss, they may have already needed to sell their house due to the pressure of meeting mortgage repayments and keeping up with the general cost of living. AB says they read the Respondent’s submissions about reimbursement as ‘like someone is giving an apology before they have been shown to be wrong, “a just in case” if you like’.

Enrolment status of the student subject of the allegation

  1. [87]
    Finally, whereas the Respondent submits that the involvement of a current student at the school in the unlawful stalking charge demonstrates the severity of the circumstances and justifies AB’s suspension without pay, AB submits the student no longer attends the school as they have now graduated.

Respondent’s submissions in reply

  1. [88]
    In the Respondent’s further submissions, it begins by clarifying its submission that AB would be reimbursed for any loss of remuneration during the period of their suspension without pay. The Respondent clarifies that any reimbursement would be ‘less the total number of days that the employee was not available to work during the period of suspension’ for reasons other than the suspension.[14] Relevant to any consideration of AB’s eligibility for reimbursement would be the suspension of AB’s teacher registration by the QCT from 13 October 2023. Nevertheless, the Respondent maintains that the financial impact of Ms Borger’s decision on AB is justified.
  1. [89]
    In response to AB’s assertion that Ms Borger’s decision to suspend them without pay is akin to a determination of guilt in relation to the stalking charge, the Department reiterates that Ms Borger did not form any view as to the veracity of the allegation. Rather, Ms Borger’s decision was based on her reasonable belief that AB is liable to discipline. The Respondent says this is distinct to a judgment as to AB’s guilt.[15]
  1. [90]
    While AB submits that the Department and the prosecution are ‘holding up the issue being resolved’, the Respondent says that the Department cannot control the progression of the criminal charge. The disciplinary process cannot commence until the charge is resolved, which the Respondent says supports its position.[16]
  1. [91]
    Turning to the Department’s consideration of alternative duties, the Respondent clarifies that the three to six months of curriculum writing needed at the school related to an overall redrafting of the school curriculum in line with the 2024 national curriculum. It was determined on investigation by the school principal that it would not be suitable for AB to undertake this project due to its complex nature. The project would require input from the Head of Department, who was also required to upskill, alongside considerable consultation with other staff members.
  1. [92]
    The Respondent explains that while AB is an ‘Experienced Senior Teacher’, this does not mean they had transferable skills for the curriculum project, particularly beyond AB’s subject area and their assessment of occupational health and safety risks in that context. The title does not recognise a broadened scope of teaching expertise and qualifications. Rather, the title is a classification applicable to those who complete two years’ satisfactory service as a Senior Teacher.
  1. [93]
    The Respondent further notes that any alternative duties performed by AB would be prevented by their suspension from attending campus to conduct adequate consultation with staff members. The Head of Campus, who had been covering several classes relevant to AB’s subject area in the absence of two teachers, did not have capacity to facilitate AB undertaking the project remotely.
  1. [94]
    The Respondent says it was also open to Ms Borger to determine that given the protracted criminal process, it was neither suitable nor operationally feasible for AB to perform alternative duties for an indefinite period.
  1. [95]
    The Respondent’s submissions then address the scope of the appeal, in that the Commission must determine whether the decision to suspend AB without pay was fair and reasonable. AB does not appeal the decision to suspend them from duty made on 3 October 2023 where it was determined that no meaningful alternative duties existed for them to perform.
  1. [96]
    In reply to AB’s submission that the unlawful stalking charge relates to a student who no longer attends the school, the Respondent says this does not alter the risk assessed by Ms Borger nor the regard Ms Borger had to the broader public interest in determining to suspend AB without pay. The Respondent notes the alleged victim of the stalking charge was a current student at the time of the alleged conduct and at the time the relevant decisions were made to suspend AB, first with pay and later without pay.
  1. [97]
    Finally, the Respondent rejects AB’s assertion that they received contradicting information from the Department about whether they could seek alternative employment during their suspension. The letter of suspension with remuneration dated 3 October 2023 said:

During your suspension you are entitled to normal remuneration, less any amount you have earned from alternative employment undertaken during your suspension. Alternative employment does not include employment you were engaged in at the time of this suspension and which is not in contravention of the PS Act, the Code of Conduct for the Queensland Public Service (Code of Conduct), or the Standard.

Any deduction for alternative employment will not exceed your normal remuneration. You are required to advise your regional Contact if you engage in any alternative employment during your period of suspension.

  1. [98]
    The letter of suspension without remuneration dated 20 November 2023 also said:

In the event that you wish to make enquiries regarding any available leave or alternative employment during the period of your suspension without pay please liaise with your Contact.

Consideration

  1. [99]
    I will approach this appeal by considering AB’s reasons for appeal to determine if any of them successfully make out that the decision of Ms Borger was not fair and reasonable. In doing so, I will then turn to the relevant legislation and directive to consider whether the decision complies with those requirements.

AB’s reasons for appeal

The decision to suspend

  1. [100]
    AB’s reasons for appeal as set out in their appeal notice are focused on the Department’s decision to suspend them without pay due to the nature of the allegations, rather than the existence of any evidence. AB submits that the ‘mere fact that I have been charged with offences is insufficient grounds for the Department to suspend me without remuneration’. AB denies the allegations and says that they are currently ‘the subject of a police charge only’ and that there is no current indictment against them.
  1. [101]
    I disagree with AB’s submission that Ms Borger’s decision amounts to a presumption of their guilt. I understand that AB feels as though the suspension without pay treats them as guilty, however Ms Borger has clearly stated that no disciplinary findings have been made against AB at this time. The suspension without pay does not deny AB a fair hearing in their court matters. AB retains the capacity to defend the allegation in court. 
  1. [102]
    I am satisfied that Ms Borger’s decision is neither a finding of guilt nor a disciplinary finding. What Ms Borger had to consider in deciding to suspend AB was whether she had formed a reasonable belief that AB was liable to discipline under a disciplinary law. As the Respondent points out in its submissions, this does not involve a finding that AB engaged in the conduct. What it involves is an assessment of the available information and consideration of whether the allegations may give rise to discipline.
  1. [103]
    AB has been charged with unlawful stalking of a person who, at the time of the allegations, was a student at the school they taught at. If AB is found guilty of unlawful stalking, there is a strong possibility that this will give rise to a ground for discipline.  In fact, even if AB is not found guilty of unlawful stalking, a ground for discipline may still exist pursuant to section 91 of the PS Act. The other matters set out at [19] and which have resolved could similarly give rise to a ground for discipline under section 91 of the Act.
  1. [104]
    I respectfully adopt the position taken by then Hartigan IC in BR v State of Queensland (No. 2) where her Honour distinguished between a determination that a person is liable to discipline under a disciplinary law from a determination that the person is guilty of the alleged offences.
  1. [105]
    It was open to Ms Borger to form a reasonable belief that AB is liable to discipline under a disciplinary law and to suspend them from duty.

Consideration of alternative duties

  1. [106]
    Before deciding to suspend AB from duty, it was necessary to consider all reasonable alternatives.
  1. [107]
    I am conscious that the suspension without pay decision before me relates to matters from 3 October 2023 onwards relating to criminal proceedings. Prior to this time, AB was placed on alternative duties following a different matter relating to their conduct with a student. Ms Borger addressed this matter in the letter of 20 November 2023 at paragraphs six and seven:
  1. Upon the department’s receipt of the original allegation, you were placed on an alternative duties arrangement on 22 May 2023 as a risk mitigation strategy to ensure you had no contact with students. Only upon the department becoming aware of the criminal charges were you suspended from duty and asked to show cause in relation to the proposed suspension without remuneration.
  1. I consider a matter progressing from a police investigation to a formal charge to be a material change of circumstances deserving consideration. Although not relevant to my determination as to suspension without remuneration, I also note the charge was the event which triggered the suspension of your teacher registration by the Queensland College of Teachers.
  1. [108]
    I am satisfied on the basis of the contents of the letter of 20 November 2023 and the submissions of the Respondent, that alternative duties have been properly considered.  On page one and two of the letter, Ms Borger says:

Section 101(3) of the PS Act requires that before suspending you from duty, I must consider all reasonable alternatives available to you. The following duties or other options have been identified and considered in light of the current circumstances and facts, including that your teacher registration is suspended:

  • Temporary transfer to alternative duties (within the school).
  • Directing you to work under close supervision or with another employee.
  • Temporary transfer to alternative duties (at another workplace, for example the regional office).
  • Working remotely or participating in project work at a remote location.

While your teacher registration is suspended, you are unable to undertake any teaching duties.

I am advised that the school is unable to operationally accommodate the high level of ongoing resources required to appropriately upskill and supervise you in performing remote work such as drafting curriculum documents. Further, at this time, there are no duties or meaningful project work able to be identified for you to undertake either, within the regional office, or at home.

I have therefore formed the view that there are no reasonable alternatives to suspension at this time.

  1. [109]
    Later in the letter of 20 November at page five, Ms Borger again notes that AB’s teacher registration has been suspended by the Queensland College of Teachers and that this ‘precludes you from undertaking any teaching duties and effectively limits them to working a non-school-based role’. Ms Borger says:

The PS Act and Suspension Directive require a consideration of all reasonable alternatives. In considering potential alternative duties, I have considered remote duties for the school and other potential duties in non-school based roles. I have sought and received advice from the [redacted] region that no suitable or reasonable alternative duties are presently available for you to perform, including working from a regional office or a work from home project.

  1. [110]
    Attachment C to the Respondent’s submissions filed on 16 January 2024 is titled ‘Consideration of Alternative Duties, A Temporary Transfer, Or Another Alternative Working Arrangement’.  Ms Borger had this information when making the decision that reasonable alternative duties were not available and on the basis of this information, it was fair and reasonable for her to reach this conclusion.
  1. [111]
    It is also relevant to note that during the preceding time that AB was directed to perform alternative duties from home, they were not allocated any work. This is because it was determined that AB did not have the knowledge or skills to undertake the three to six months of curriculum writing work required by the school and that it was not operationally possible for resources to be allocated to undertake the upskilling and supervision of AB to enable the work to be done.
  1. [112]
    I accept AB’s submission that the laptop the Department referred to as being removed by the police on 29 August 2023 was returned to them. I do not think that a short period of time without a laptop was the dominant reason it was determined that there were no reasonable alternative duties AB could undertake.
  1. [113]
    I understand AB’s submissions that they have experience in writing units and programs of work and that they are an Experienced Senior Teacher. I accept that AB has been deemed competent to perform their duties, however I also accept that it was open to the principal of the school to consider the nature of the curriculum work to be undertaken was that of an overall redrafting of the school curriculum in line with the 2024 national curriculum and to determine that AB would not have the knowledge or skills to undertake the particular project related to the new Australian Curriculum without significant oversight or upskilling. I accept that AB has written curriculum units and programs in their subject area however, I also accept the Respondent’s submission that these subject specific skills are not transferable skills for the purposes of a curriculum project beyond AB’s subject area. I accept that being an Experienced Senior Teacher does not necessarily mean that an individual has a broadened scope of expertise or qualifications to enable them to undertake school-wide curriculum writing. In the circumstances, it was determined that undertaking the work would require on campus attendance to consult with staff members and that AB was precluded from attending the school worksite. It was further open to the Respondent to determine that resources were not available to enable the Head of Campus to remotely supervise AB’s work.
  1. [114]
    In circumstances where a period of alternative duties had been underway without any alternative duties being undertaken, I agree with the Respondent that in the context of the criminal charges and the suspension of their teacher registration, the continuation of alternative duties would not withstand public scrutiny or being in the public interest.  This is particularly in circumstances where the alternative duties would need to be undertaken for an indefinite period while awaiting the criminal process.

The decision to suspend without remuneration

Nature of the disciplinary matter

  1. [115]
    Pursuant to s 101(4) of the PS Act, where the suspension occurs on the basis of a reasonable belief that the employee is liable to discipline, the decision-maker may consider it is not appropriate for the employee to be entitled to normal remuneration when having regard to the nature of the discipline to which the decision-maker believes the employee is liable.
  1. [116]
    The unlawful stalking charge arises from AB’s alleged conduct towards a Year 12 student at the school. The date range of the alleged incidents is 22 January 2023 to 11 May 2023 and includes a number of discrete incidents. It was open to Ms Borger to consider that if the conduct is substantiated, it is likely that it will give rise to serious grounds for discipline.

Considerations under the Directive

Factors not with the control of the agency

  1. [117]
    Clause 8.2 of the Directive required Ms Borger to consider whether there were factors outside of the control of the Department preventing the timely conclusion of the disciplinary matter. Clause 8.2 provides an example of a factor not within control of the agency, ‘for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges’.
  1. [118]
    AB submits that the police, prosecution and the Department are ‘holding up the process’. With regard to the police and prosecution, AB has noted delays in the court processes and what they say are a series of excuses as to why the prosecution does not have the required evidence to move ahead with the matter. I understand AB’s frustration, but any delay arising from the actions of the police and the prosecution is not a factor within the control of the Department.
  1. [119]
    It does not appear to be in dispute that while some of the charges have been dealt with, the stalking charge has not been heard by the court as part of the criminal proceedings against AB. The Department cannot commence its own disciplinary process until the criminal matters are dealt with. It was open to Ms Borger to conclude that the outstanding criminal charge is a factor beyond the control of the Department.
  1. [120]
    I have considered AB’s submission that the Department is dragging the issue out and that they would like the process to be sped up. It is unclear to me what actions of the Department are dragging the issue out and impacting on the time taken to conclude the criminal proceedings. However, I find it is fair and reasonable for the Department to wait for the outcome of the criminal proceedings before commencing any disciplinary process.

Financial impact on AB and the broader public interest

  1. [121]
    The Directive also required Ms Borger to consider whether it is otherwise fair and reasonable to suspend AB without remuneration considering the financial impact on them and the broader public interest.
  1. [122]
    While AB has made submissions about the personal impact the suspension is having on them, in this appeal I am required to consider whether Ms Borger has considered the financial impact on AB. I recognise that being suspended from duties with or without normal remuneration can be confronting and cause distress. To that end, I note that Ms Borger has provided information to AB about support available, including the Employee Assistance Program.[17]
  1. [123]
    I note AB’s submission that the decision to suspend them without remuneration is affecting their finances and that they are struggling to pay their mortgage and has depleted their savings to pay bills and keep up with the cost of living. I also note AB’s submissions that even if the allegation is not substantiated, their employment is not terminated on disciplinary grounds and they are reimbursed for any loss of remuneration, this may be too late as they may have already needed to sell their house. With regard to financial hardship, I note that AB has been informed that they may access any accumulated leave entitlements.[18]  I also note that AB was told that they had an option to seek alternative employment during the period of their suspension without remuneration.[19]
  1. [124]
    While Ms Borger considered the financial impact on AB, she determined that the public interest outweighs the impact on them:
  1. I do not consider the financial impact on you as a result of my decision to suspend you without normal remuneration is sufficient to offset the fact that you are subject to a serious criminal charge, which if proven, may amount to misconduct. The PS Act and the Suspension Directive expressly contemplate that suspension without normal remuneration may be fair and reasonable in certain circumstances, taking into account the broader public interest of an employee remaining on suspension with remuneration.
  1. [125]
    Ms Borger explains her reasoning with regard to the broader public interest of AB remaining on suspension with remuneration from paragraphs 19 to 24 of the decision letter.  The Respondent’s submissions argue that it was fair and reasonable for Ms Borger to decide that the broader public interest supported a suspension without remuneration.[20] I have considered Ms Borger’s reasons and the submissions in support of those reasons and I accept that given the nature of the charges and the seriousness of the issue, Ms Borger’s decision is in line with community expectations and the broader public interest.
  1. [126]
    I understand AB’s submission that the student who is the alleged victim of the stalking charge is no longer a student at the school as they have now graduated, however, I fail to see how this impacts on the seriousness of the matter.  The allegation relates to a student who was currently enrolled at the time of the alleged conduct.  I do not think the fact that the student is no longer enrolled at the school serves to make Ms Borger’s decision not fair or reasonable.

Other matters raised by AB

  1. [127]
    AB has raised concerns about a delay of one week of the provision of a letter to them regarding the initial complaint made in May. This is a matter outside the scope of this appeal.
  1. [128]
    I understand that AB is dissatisfied with the communication they have received during the process. There are avenues for AB to address this, however I am satisfied that the suspension and the further suspension without remuneration have been properly communicated to AB in a way that makes the reasoning of the decision maker clear.  Concerns AB has regarding contact with a case worker, District Office staff or the principal are outside of the scope of this appeal.
  1. [129]
    I understand that AB holds concerns that they received a letter dated 3 October 2023 in their post office box on 3 October 2023 and that this means the letter was pre-dated before it was sent. I am satisfied that AB’s representatives raised this possible discrepancy with the Respondent. The 3 October 2023 letter is not the decision under appeal in this matter and in any case, I cannot identify any unfairness in the decision of 20 November 2023 on the basis of a date issue on the initial show cause letter on 3 October 2023.
  1. [130]
    I have reviewed the letters of 3 October 2023 and 20 November 2023 and I am satisfied that both letters refer to the possibility of AB undertaking alternative employment during the time they is suspended. I do not think that the advice contained in those letters informs AB that obtaining another job could give rise to a conflict of interest while they are employed by the Department of Education as they submit.

The decision was fair and reasonable

  1. [131]
    As stated above, s 101(1)(a) of the PS Act provides that AB could be suspended from duty on the basis that Ms Borger formed a reasonable belief that they were liable to discipline under a disciplinary law.  For the reasons given above from [100] to [105], I find that s 101(1)(a) has been met. In any case, the appeal is against the further decision to remove remuneration for the period of the suspension rather than the suspension itself.
  1. [132]
    For the reasons given above from [108] to [114], I am satisfied that as required by s 101(3) of the PS Act, Ms Borger considered all options to continue AB’s placement on alternative duties and that it was fair and reasonable for her to decide that there was no appropriate arrangement available.
  1. [133]
    For the reasons given above at [115] and [116], per s 101(4)(b) of the PS Act, I am satisfied that Ms Borger had regard to the nature of the discipline to which she believed AB was liable.
  1. [134]
    For the reasons given above from [117] to [124], I am satisfied that Ms Borger considered the matters set out in cl 8.2(a) and (b) of the Directive and that it was open to her to determine that there were factors outside of the control of the Department preventing the timely conclusion of the discipline process.  I am further satisfied that additionally or in the alternative that it was open to Ms Borger to suspend AB without remuneration, taking into account the financial impact on them and the broader public interest of them remaining on suspension with remuneration.
  1. [135]
    I have reviewed the letter of 20 November 2023 and I am satisfied that AB has been provided with sufficient reasons for them to understand the decision to suspend them without remuneration.  I am further satisfied that they were provided an opportunity to show cause why such a decision should not be made. I am also satisfied that Ms Borger gave consideration to AB’s human rights, explaining limitations on their rights and the basis upon which such limitations were justified.
  2. [136]
    For the foregoing reasons, the decision appealed against is confirmed.

Order

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

Footnotes

[1] Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263, [44].

[2] Ibid.

[3] Respondent’s submissions filed 16 January 2024, Attachment A.

[4] BR v State of Queensland (No. 2) [2022] QIRC 154, [39] (‘BR No. 2’).

[5] Ibid.

[6] The Respondent says this includes consideration of the nature of the unlawful stalking charge.

[7] Baskin v State of Queensland (Department of Education) [2022] QIRC 349, [68] (‘Baskin’).

[8] BR No. 2 (n 4) [36].

[9] Baskin (n 7) [65].

[10] [2022] QIRC 402.

[11] Ibid [63].

[12] Ibid [58].

[13] Respondent’s submissions filed 16 January 2024, Attachment C.

[14] Suspension (Directive 06/23) cl 10.5.

[15] BR No. 2 (n 4) [6].

[16] Suspension (Directive 06/23) cl 8.2.

[17] Page 7 of the decision letter dated 20 November 2023.

[18] Paragraphs 16 and 17 of the decision letter dated 20 November 2023.

[19] Paragraphs 16 and 17 and on page 6 of the decision letter dated 20 November 2023.

[20] See above [47] – [49].

Close

Editorial Notes

  • Published Case Name:

    AB v State of Queensland (Department of Education)

  • Shortened Case Name:

    AB v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 49

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    26 Feb 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
1 citation
Jump To
Cite 1 - [2021] QIRC 263
Baskin v State of Queensland (Department of Education) [2022] QIRC 349
2 citations
Jump To
Cite 1 - [2022] QIRC 349
Cite 2 - [2022] QIRC 349
BR v State of Queensland (No. 2) [2022] QIRC 154
2 citations
Jump To
Cite 1 - [2022] QIRC 154
Cite 2 - [2022] QIRC 154
Thomson v State of Queensland (Department of Education) [2022] QIRC 402
2 citations
Jump To
Cite 1 - [2022] QIRC 402
Cite 2 - [2022] QIRC 402

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
Payne v State of Queensland (Department of Education) [2025] QIRC 1982 citations
QR v State of Queensland (Queensland Health) [2025] QIRC 2491 citation
1

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