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Mathers v State of Queensland (Queensland Health)[2025] QIRC 134

Mathers v State of Queensland (Queensland Health)[2025] QIRC 134

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mathers v State of Queensland (Queensland Health) [2025] QIRC 134

PARTIES:

Mathers, Brian

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/159

PROCEEDING:

Public Sector Appeal – Appeal against a directive decision

DELIVERED ON:

28 May 2025

MEMBER:

Gazenbeek IC

HEARD AT:

On the papers

ORDER:

  1. 1.
    Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
  1. (a)
    The appeal is allowed;
  1. (b)
    The decision appealed against, dated 25 September 2024, is set aside and another decision is substituted; and
  1. (c)
    The Respondent is to reimburse the Appellant the amount he has been deprived of for the period of suspension without remuneration, from 21 March 2022 to 11 May 2024.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – where appellant is employed by the respondent at Redcliffe Hospital – where appellant was charged with criminal offences – where the Office of the Health Ombudsman issued an interim prohibition order prohibiting the appellant from providing any health service in a clinical or non-clinical capacity – where appellant was suspended without remuneration – where appellant was found not guilty of all charges following trial – where interim prohibition order was revoked – where the respondent decided not to reimburse the appellant for the period of suspension without remuneration – whether the appellant should be reimbursed for the period of suspension without remuneration – where the decision not to reimburse the appellant was not fair and reasonable – appeal allowed

LEGISLATION AND INSTRUMENTS:

Health Ombudsman Act 2013 (Qld) ss 67, 68, 73, 76

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

Public Sector Act 2022 (Qld) ss 4, 101, 102, 129, 130, 131, 133, 134

Public Service Act 2008 (Qld) s 137 (repealed)

Code of Conduct for the Queensland Public Service

Suspension Directive 06/23

CASES:

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

Mathers v State of Queensland (Queensland Health) [2024] QIRC 282

State of Queensland (Department of Education) v Johnstone [2024] ICQ 18

Winter v State of Queensland (Department of Education) [2022] QIRC 350

Reasons for Decision

[1] Mr Brian Mathers (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’), as a Cook Supervisor at Redcliffe Hospital within the Metro North Hospital and Health Service (‘MNHHS’).

  1. [2]
    On 1 October 2024, the Appellant filed an Appeal Notice challenging a decision of the Respondent dated 25 September 2024 (‘the directive decision’) to decline reimbursement of remuneration for a period of unpaid suspension from 21 March 2022 to 11 May 2024.

Background

  1. [3]
    In early February 2022, the Appellant was charged with a number of indictable offences.
  2. [4]
    While the Appellant did not report those criminal charges to the MNHHS, as required under the Code of Conduct for the Queensland Public Service,[1] the Office of the Health Ombudsman (‘the OHO’) advised the MNHHS of these charges on 14 February 2022.
  3. [5]
    Having formed the view that the Appellant may be liable to discipline, the Respondent initially suspended the Appellant with pay from 17 February 2022 until 20 March 2022 under s 137(3) of the (now-repealed) Public Service Act 2008 (Qld).
  4. [6]
    However, on 11 March 2022, the OHO informed the Respondent that it had issued an interim prohibition order on 8 March 2022 which prohibited the Appellant from providing any health service in either a paid or unpaid capacity, or in either a clinical or non-clinical capacity.
  5. [7]
    In light of this notice from the OHO, the Respondent advised the Appellant that he was suspended without remuneration effective 21 March 2022, until 20 May 2022. Suspension on those terms was extended on several occasions until 11 May 2024.
  6. [8]
    On 12 May 2024, the Appellant provided the Respondent with the Verdict and Judgement Record confirming that he was found not guilty in the Brisbane District Court on 3 May 2024 for the relevant charges. The Appellant was then suspended with remuneration from 12 May 2024, pending the OHO’s revocation of the interim prohibition order.
  7. [9]
    On 4 July 2024, the Appellant provided the Respondent with the OHO notification that confirmed their investigation had been completed, that no further action would be taken in relation to the matter, and that the Order was revoked effectively immediately, pursuant to s 76 of the Health Ombudsman Act 2013 (Qld).
  8. [10]
    The Appellant was consequently informed by the Respondent on 13 August 2024 that his suspension had ceased effective immediately, and that he was able to return to work.

Decision appealed against

  1. [11]
    On 6 May 2024, the Appellant made a request to discuss the reimbursement for unpaid remuneration during the period of his suspension without remuneration.
  2. [12]
    In a decision of 25 September 2024 (‘the directive decision’), the Appellant was advised by Adjunct Professor Jackie Hanson (Chief Executive, Metro North Hospital) (‘the decision-maker’) that she did not consider it appropriate to reimburse the Appellant wages during his suspension without remuneration, and had determined not to approve reimbursement for the period 21 March 2022 to 11 May 2024. In that correspondence, the decision-maker noted that:[2]

I acknowledge that clause 10.1 of the Suspension Directive 06/23 (the Directive), states; “an employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.”

I understand that your legal matters have been resolved, as indicated in your notification to the Health Service on 7 May 2024, regarding the finalisation of the last set of offences. I have also been informed that your discipline process has recently concluded and did not result in the termination of your employment.

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

The restrictions imposed on your practice by OHO by the Order, was a matter for OHO. These restrictions prevented you from engaging in any work capacity, including alternative duties, transfers or other work arrangements with any health service. As a result, you were not available to work for MNH during the period of suspension without remuneration for reasons other than your suspension.

Considering the nature of the charges, the restrictions imposed by OHO and the use of public monies, I believe the decision to suspend you without normal remuneration was justified. The Order remained unchanged during your suspension without remuneration, preventing you from working in any capacity.

  1. [13]
    It is this decision of 25 September 2024, namely that the Appellant was not eligible for reimbursement as a result of the terms of Directive 06/23 Suspension (‘the Directive’),  that Mr Mathers now appeals.
  2. [14]
    In the Appeal Notice filed on 1 October 2024, the Appellant relevantly stated that:[3]

Ms Hanson deemed that because of the OHO’s order I was unavailable to work.

I disagree for the following reasons:

1. The OHO’s order formed part of my suspension, therefore cannot be classed as “for reasons other than being suspended”.

2. During my suspension I was never “detained”, in fact I was always at hand and available to work.

3. There is nothing to suggest that clause 10.5 requires an employee to be legally entitled to perform the specific work that they were employed to do, only that they be available.

I am seeking the full reimbursement of my normal remuneration for the period of 21 March 2022 to 11 May 2024.

Including all allowances, loading's, penalties, superannuation and associated leave including recreation leave, sick leave and RDO’s, also I am requested that my long service entitlements be adjusted accordingly.

As my human rights have already been breached a number of times during my suspension I ask that this matter be addressed with the utmost importance as it is affecting my humans right by denying me the ability to pay my debts, as a result this will shortly affect my financial future.

Nature of appeal

  1. [15]
    Appeals of this nature are heard and decided under chapter 11 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’).
  2. [16]
    An appeal under chapter 11 of the IR Act is not a rehearing of the matter, but rather involves a review of the decision and the associated decision-making process,[4] with the purpose of deciding whether the decision appealed against was fair and reasonable.[5]
  3. [17]
    The issue for determination in this appeal is therefore whether the decision not to approve reimbursement for the period Mr Mathers was suspended without remuneration, was fair and reasonable. In accordance with the Further Directions Order issued on 24 October 2024, the parties have filed written submissions addressing this issue.
  4. [18]
    Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld), no hearing was conducted in deciding this appeal, and the matter was decided on the papers.

Relevant legislation and directives

  1. [19]
    While the Appellant was initially suspended under the repealed Public Service Act 2008 (Qld), the Public Sector Act 2022 (Qld) (‘the PS Act’) had come into effect by the time the directive decision (subject of this appeal) was made. The decision-maker was therefore required to have regard to the relevant provisions of the PS Act and the Directive.
  2. [20]
    Sections 101 and 102 of the PS Act provide for the suspension of a public service employee as follows:[6] 
  1. 101
    Suspension
  1. (1)
    A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes –
  1. (a)
    the employee is liable to discipline under a disciplinary law; or
  1. (b)
    the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. (2)
    The notice must state –
  1. (a)
    when the suspension starts and ends; and
  1. (b)
    whether the employee is entitled to remuneration for the period of the suspension; and
  1. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
  1. (3)
    However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee.
  1. Examples of reasonable alternatives which may be available to the employee-
  • alternative duties
  • a change in the location where the employee performs duties
  • another alternative working arrangement
  1. (4)
    The employee is entitled to normal remuneration for the period of the suspension, unless –
  1. (a)
    the employee is suspended under subsection (1)(a); and
  1. (b)
    the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.
  1. …
  1. (8)
    The chief executive may cancel the suspension at any time.
  1. (9)
    In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  1. (10)
    Procedural fairness is not required if the employee is entitle to normal remuneration during the suspension.
  1. 102
    Directive about suspension
  1. (1)
    The commissioner must make a directive about procedures relating to suspension from duty of public sector employees.
  1. …
  1. (3)
    The directive may make provision for the circumstances, and the way, in which a person may be reimbursed after a decision is made about whether or not the employee is liable for discipline for any remuneration the period does not receive during the person’s suspension.
  1. [21]
    Made under s 102 of the PS Act, the Directive applies to and is binding upon public sector employees, such as the Appellant.[7]
  2. [22]
    Clause 8 of the Directive provides for the suspension of an employee from duty without remuneration in the following terms:
  1. 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.
  1. 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
  1. (b)
    it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.
  1. [23]
    Clause 10 of the Directive relevantly provides the following in relation to reimbursement when an employee has been suspended without normal remuneration:
  1. 10.
    Reimbursement when employee has been suspended without normal remuneration
  1. 10.1
    An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
  1. 10.2
    The amount to be reimbursed is the employee’s normal remuneration at the date of suspension without pay for the period the employee was without remuneration during the suspension, taking into account any increase due to certified agreements or rulings made in state wage cases.
  1. 10.3
    An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
  1. 10.4
    Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 10.2 above, unless: 
  1. (a)
    the employee was engaged in the employment at the time of the suspension, and
  1. (b)
    the employee, in engaging in the employment, was not contravening:
  1. (i)
    the Act, or
  1. (ii)
    a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
  1. 10.5
    If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.
  1. [24]
    Further, it is uncontroversial that the OHO issued a notice to the Respondent on 11 March 2022 in the following terms:[8]
  1. Notice pursuant to section 272(6) of the Health Ombudsman Act 2013 (Qld)
  1. …
  1. In accordance with section 272(6)(c)(ii) of the Health Ombudsman Act 2013 (Qld) (the Act), and principle 11(1)(d) of the Information Privacy Act 2009 (Qld), I write to advise you of the following:
  1. 1.
    On 11 March 2022, the Health Ombudsman issued an interim prohibition order in relation to Brian Arthur Campbell Mathers (the practitioner) pursuant to Part 7 of the Act.
  1. 2.
    As a result, the practitioner is prohibited from providing any health service, paid or otherwise, in a clinical or non-clinical capacity.
  1. In accordance with section 73(2) of the Act, the Health Ombudsman’s decision will continue to have effect until the Queensland Civil and Administrative Tribunal sets aside the decision, or the interim prohibition order is revoked by the Health Ombudsman.
  1. [25]
    Part 7 of the Health Ombudsman Act 2013 (Qld), entitled ‘Immediate action in relation to health practitioners’, relevantly stipulates the following in relation to the issuing of interim prohibition orders:[9]
  1. 67
    Interim prohibition orders
  1. An interim prohibition order is an order issued to a health practitioner –
  1. (a)
    prohibiting the practitioner from providing any health service or a stated health service; or
  1. (b)
    imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner.
  1. 68
    Power to issue interim prohibition orders
  1. (1)
    The health ombudsman may issue an interim prohibition order to a health practitioner (other than in the person’s capacity as a registered health practitioner) if –
  1. (a)
    the health ombudsman reasonably believes that –
  1. (i)
    because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and
  1. (ii)
    it is necessary to issue the order to protect public health or safety; or
  1. (b)
    the health ombudsman reasonably believes issuing the order is otherwise in the public interest.
  1. Example of when issuing the order is in the public interest –
  1. A health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which an interim prohibition order is required to be issued to maintain public confidence in the provision of services by health practitioners.
  1. …
  1. 73
    Period of interim prohibition order
  1. (1)
    An interim prohibition order takes effect on the day it is given to the health practitioner or, if a later day is stated in the order, the later day.
  1. (2)
    The order continues to have effect until the earliest of the following happens –
  1. (a)
    the order ends under section 90H; …
  1. (b)
    QCAT sets aside the decision to issue the order on application by the practitioner for a review of the decision;
  1. (c)
    the health ombudsman revokes the order under section 76.
  1. …
  1. 76
    Health ombudsman may revoke order
  1. (1)
    This section applies if, at any time after issuing an interim prohibition order to a health practitioner, the health ombudsman is satisfied the order is no longer necessary on the grounds mentioned in section 68.
  1. (2)
    The health ombudsman must –
  1. (a)
    revoke the order; and
  1. (b)
    give notice of the revocation to the practitioner and, if the interim prohibition order was issued in response to a complaint, to the complainant.

Consideration

Does Mr Mathers have a prima facie entitlement to reimbursement?

  1. [26]
    By clause 10.1 of the Directive, an employee’s eligibility to be reimbursed under the Directive is dependent on the satisfaction of two preconditions, namely that:
  1. a decision on discipline has been made or the disciplinary process has concluded; and
  2. the disciplinary process did not result in termination of employment. 
  1. [27]
    It is clear that a decision on discipline has been made, not least because this Commission has already determined that the disciplinary decision of the Respondent to impose a reprimand on Mr Mathers, was fair and reasonable.[10] It is therefore also clear that the disciplinary action taken against the Appellant did not result in the termination of his employment; rather, Mr Mathers returned to the workplace on 29 August 2024 following a decision to lift his suspension.[11]
  2. [28]
    That the Appellant meets both preconditions within clause 10.1, and therefore has a prima facie right to reimbursement, is also explicitly acknowledged by the decision-maker in the directive decision:[12]

I understand that your legal matters have been resolved, as indicated in your notification to the Health Service on 7 May 2024, regarding the finalisation of the last set of offences. I have also been informed that your discipline process has recently concluded and did not result in the termination of your employment.

(emphasis added)

  1. [29]
    While the Respondent is correct in submitting that clause 10.1 of the Directive “must be read in conjunction with clause 10.5”,[13] this interpretation of the Directive tends to overstate the weight that clause 10.5 ought to be given.
  2. [30]
    As held by Davis J, President in State of Queensland (Department of Education) v Johnston, what clauses 10.3, 10.4 and 10.5 do “is provide exceptions to the general rule under clause 10.1.”[14] His Honour proceeded to construe the relevant provisions of the Directive and the PS Act as follows:[15]
  1. [55]
    By clause 10.1, the employee who is suspended without remuneration must be reimbursed if the disciplinary process ultimately does not result in termination. The right to reimbursement is linked to the employee’s success (at least to the extent of maintaining employment) in the “disciplinary process”. Section 101(4) gives a power to the chief executive to suspend without pay having regard to “the nature of the discipline to which the chief executive believes the employee is liable”.  Obviously, if that is termination the discretion to suspend without remuneration will arise. Then clause 10.1 of the Directive gives a right to reimbursement (subject to clauses 10.3, 10.4 and 10.5) where termination is not the result of the disciplinary process.  The “disciplinary process” is the process under Part 8 of the Public Sector Act, not any disciplinary process taken under the College of Teachers Act.
  1. …
  1. [59]
    The obvious intention of the Public Sector Act and the Directive is that reimbursement to an employee who was suspended without remuneration is prima facie dependent upon success of the employee in the disciplinary proceedings. The exceptions to that position (clauses 10.3, 10.4 and 10.5) are in my view very narrow.
  1. [60]
    Clause 10.5 gives one example of an employee not being “available”.  That is when the employee is in custody and physically unable to work in the public sector.  That employee would not be “at hand” to work.
  1. (emphasis added)
  1. [31]
    Clause 10.3, which provides that the right to reimbursement only subsists while the employer and employee relationship exists, has no relevance to Mr Mathers’ circumstances given his continued employment with the Respondent. Clause 10.4 similarly has no present relevance, as Mr Mathers did not earn remuneration elsewhere while suspended by the Respondent. 
  2. [32]
    The outstanding question at present is therefore whether Mr Mathers’ prima facie entitlement to reimbursement is disrupted by the narrow exception contained within clauses 10.5 of the Directive.

Was Mr Mathers “available to work during the period of suspension”?

  1. [33]
    Clause 10.5 provides that an employee who was not available to work during the period of suspension for reasons other than being suspended, should not be reimbursed for that period of unavailability.
  2. [34]
    The Appellant submits, in short, that the decision-maker incorrectly applied the Directive by “incorrectly stat[ing] that the Appellant was unavailable to work during the relevant period, because of the OHO’s prohibition order.”[16] Rather, he submits that the OHO’s order formed part of his suspension, such that it cannot be said he was unavailable for reasons other than being suspended.[17] Relying on State of Queensland (Department of Education) v Johnston,[18] the Appellant further submits that he was “always ‘at hand’ to work” during the period of suspension without remuneration.[19]
  3. [35]
    In contrast, the Respondent submits that:
  • the OHO interim prohibition order “falls within the scope of clause 10.5 of the Directive, because the Order prohibited the Appellant from providing any health service, paid or otherwise, in a clinical or non-clinical capacity”;[20] and
  • the effect of the OHO order was that, regardless of the Respondent’s subsequent decision to suspend the Appellant, “the Appellant was prevented from engaging in any work with the Respondent”, thus enlivening the application of clause 10.5.[21]
  1. [36]
    In their submissions, the Respondent relies on the Commission’s decision in Winter v State of Queensland (Queensland Health) (‘Winter’),[22] in which it was found that the appellant was prevented from being available for work because of the effect of a direction to be vaccinated against COVID-19. The Respondent compares the direction relevant to that decision, to the OHO’s interim prohibition order, as they “would both fall within the scope of something clause 10.5 contemplates as ‘a reason other than suspension.’”[23]
  2. [37]
    In State of Queensland (Department of Education) v Johnston, Davis J, President found the following in respect of the relevance (or lack thereof) of Winter to clause 10.5 of the Directive:[24]
  1. [47]
    There are two questions which arise in the interpretation of the words chosen and used by the Commissioner in the Directive.  The first is the meaning of the word “available”. Does “available” mean physically available to perform work, or does it mean that the employee, in all the circumstances, is physically able and legally entitled to do the work? If it is the former, then the second question does not arise. If it is the latter, then the second question is as to the meaning of the term “work” in clause 10.5. Does “work” mean any work, or does “work” mean the work which, under the contract of employment between the employer (here, the State) and the employee (here, Mr Johnston), the employee undertook to perform? As will be seen, the two questions overlap.
  1. [48]
    The word “available” is defined in the Macquarie Dictionary as:

“adjective

1. suitable or ready for use; at hand; of use or service: available resources.

2. having sufficient power or efficacy; valid.

3. Obsolete profitable; advantageous.

- availableness, noun

- availability, adverb”

  1. [49]
    Mr Johnston’s case is that he was available in that he was “at hand” to work. He was one of those who “… also serve” as they “stand and wait”. The State’s construction is that “work”, being the work for which Mr Johnston must be “available”, is his work as a teacher and he was not available to do that work as he was legally prohibited from doing so.
  1. [50]
    In my view, the construction proposed by Mr Johnston is strongly supported by the Directive taken as a whole against the context of the Public Sector Act.
  1. …
  1. [58]
    There is, in my view, nothing to suggest that clause 10.5 would require an employee to be legally entitled to perform the specific work they were employed to do in order to be relevantly “available”. That is not a precondition to payment of remuneration to an employee who is suspended with remuneration. Remuneration may only be suspended in the circumstances prescribed by clause 8.2 of the Directive. There is no mention there of remuneration being suspended if the employee becomes legally disentitled to work.  There are only two reasons prescribed by clause 8.2 for denying remuneration. One is unforeseen delay.  The second is that it is “otherwise fair and reasonable”. Even if suspension of a licence to do the work was a relevant consideration of what is “fair and reasonable”, that is still not determinative.  The chief executive must still consider the financial position of the employee and the public interest.
  1. …
  1. [61]
    The State relies on Winter v State of Queensland (Department of Education), a decision of the QIRC and also Carr v State of Queensland (Department of Education), a decision of this Court. Both are cases where the impact of COVID-19 vaccination directions were considered. Winter was decided on the papers without oral argument. In both cases the employee was not legally represented. Neither case evidences a detailed examination of the proper construction of the term “available” in the context of Directive:16/20 - Suspension Directive, which was the predecessor to the Directive.
  1. [62]
    In both cases the employee refused to be vaccinated contrary to a specific direction, thus rendering themselves incapable of performing any available role.  In both cases it was held that the unvaccinated employee was “unavailable” to work.
  1. [63]
    It is unnecessary to finally determine whether Winter and Carr were correctly decided, but they probably were. Given the example of unavailability mentioned in clause 10 (incarceration), it is clear that inability to physically attend work renders an employee “unavailable”. An employee who deliberately refuses to comply with a prerequisite to the ability to work is clearly not “at hand”. For practical purposes it is as if the employee had absented themselves physically.
  1. [64]
    That is not the case here. Mr Johnston has done all things necessary to make himself available to work.  He is “at hand”.  There is an intervening statutory prohibition which has arisen preventing him from working. As explained, on a proper construction of the Directive, he remains “at hand” to work and is not relevantly “unavailable”.
  1. …
  1. [67]
    It doesn’t matter that no alternative role was available to Mr Johnston. He was “available for work” in the sense that he was available to perform physical exertion for the State in exchange for remuneration.
  1. [68]
    In my view, on a proper construction of the Directive, Mr Johnston became entitled to reimbursement of remuneration once the disciplinary process was concluded in his favour.  He was, over the period of the suspension, at hand to work and was therefore “available to work”.  He did not fall within the exception under clause 10.5 of the Directive.
  1. (emphasis added)
  1. [38]
    As His Honour found in State of Queensland (Department of Education) v Johnston, I am similarly satisfied that Mr Mathers remained at hand, and therefore was available to work during the period of his suspension without remuneration. He did not physically absent himself from work, but rather was prevented from working due to an intervening statutory prohibition.
  2. [39]
    This construction is further supported when the conditions of the Appellant’s suspension are considered. When initially suspended with remuneration, the Appellant was informed of the following:[25]

During the period of your suspension you are required to remain ready, willing and able to attend work if required. If you wish to access leave during your suspension, you should make an application to me.

(emphasis added)

  1. [40]
    Upon being suspended without remuneration, the Appellant was again informed of the following lawful directions:[26]

As previously advised in my letter dated 17 February 2022, as a consequence of the suspension you are not to present yourself in the vicinity of any of the facilities of the Health Service other than to seek necessary medical treatment or visit family or friends receiving medical treatment, without prior permission from your line manager or by contacting myself on the details listed in this letter.

You are required to make yourself available for contact by Health Service officers during normal business hours whilst suspended from duty. You must also notify your line manager immediately if your personal circumstances change so that you are able to present to work should you be directed to do so.

Should you fail to follow these lawful directions, you may be liable for disciplinary action that may lead to dismissal.

(emphasis added)

  1. [41]
    Throughout his period of suspension, the Appellant received several reminders of the requirement that he “remain ready, willing and able to attend work if required”.[27] In my view, the terms of that condition further support that the Appellant was available for work throughout his suspension without remuneration, notwithstanding the effect of the OHO’s interim prohibition order.[28]

Conclusion

  1. [42]
    I agree with Industrial Commissioner McLennan’s observation in Johnston v State of Queensland (Department of Education) that “achieving the purpose of the Act by “creating a public sector that ensures fairness in the employment relationship and fair treatment of employees” would certainly be defeated if the Appellant was acquitted of all accusations made against him – and yet was penalised to the tune of about 16 months lost wages anyway.”[29] There is no evidence before me that the intention of the legislature aligns at all with the Respondent’s suggested interpretation of clause 10.5.
  2. [43]
    The Directive clearly prescribes that the Appellant must be reimbursed in certain circumstances, and I have found those conditions have been met. Clause 10.5 of the Directive did not otherwise disentitle Mr Mathers to reimbursement of remuneration over the period of his suspension.
  3. [44]
    For these reasons, the decision-maker’s decision to refuse to reimburse the Appellant for the period of his suspension without remuneration, was not fair and reasonable.
  4. [45]
    I order accordingly.

Order

  1. 1.
    Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
  1. (a)
    The appeal is allowed;
  1. (b)
    The decision appealed against, dated 25 September 2024, is set aside and another decision is substituted; and
  1. (c)
    The Respondent is to reimburse the Appellant the amount he has been deprived of for the period of suspension without remuneration, from 21 March 2022 to 11 May 2024.

Footnotes

[1] See principle 1.5 of the Code of Conduct for the Queensland Public Service.

[2] Letter from Adjunct Professor J. Hanson (Chief Executive, Metro North Hospital) to Mr B. Mathers, dated 25 September 2024, 2.

[3] Form 89 – Appeal notice, filed on 1 October 2024, 4.

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

[5] Ibid s 562B(3).

[6] I note that it is uncontroversial between the parties that the Appellant is a public service employee within the meaning of the PS Act.

[7] Directive 06/23 Suspension cl 3.1.

[8] Submissions of the Appellant, filed on 25 October 2024, [5]; Submissions of the Respondent, filed on 23 October 2024, [8].

[9] Health Ombudsman Act 2013 (Qld) ss 67, 68, 73, 76.

[10] Mathers v State of Queensland (Queensland Health) [2024] QIRC 282.

[11] Letter of Adjunct Professor J. Hanson (Chief Executive) to Mr B. Mathers, dated 25 September 2024, 2.

[12] Ibid.

[13] Submissions of the Respondent, filed 23 October 2024, [19].

[14] [2024] ICQ 18 [56].

[15] [2024] ICQ 18 [55], [57]-[60].

[16] Submissions of the Appellant, filed on 25 October 2024, [13]-[14].

[17] Ibid [14]. 

[18] [2024] ICQ 18.

[19] Ibid [14]-[15].

[20] Ibid [19]

[21] Submissions of the Respondent, filed 23 October 2024, [18]-[22].

[22] [2022] QIRC 350.

[23] Submissions of the Respondent, filed 23 October 2024, [27].

[24] [2024] ICQ 18 [47]-[50], [61]-[68].

[25] Letter of Mr P. King (Director, Patient Services) to Mr B. Mathers, dated 17 February 2022, 3.

[26] Letter of Mr P. King (Director, Patient Services) to Mr B. Mathers, dated 23 March 2022, 3.

[27] For example, see Letter from Ms L. Oriti (Executive Director, Redcliffe Hospital) to Mr B. Mathers, dated 29 September 2022, 2; Letter from Ms L. Oriti (Executive Director, Redcliffe Hospital) to Mr B. Mathers, dated 17 January 2023, 2; and Letter from Ms L. O'Riordan (Acting Executive Director, Redcliffe Hospital) to Mr B. Mathers, dated 7 December 2023, 2.

[28] See also Johnstone v State of Queensland (Department of Education) [2024] QIRC 11 [100]-[105].

[29] [2024] QIRC 11 [117], referring to section 4 of the Public Sector Act 2022 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Mathers v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Mathers v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 134

  • Court:

    QIRC

  • Judge(s):

    Gazenbeek IC

  • Date:

    28 May 2025

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
Johnston v State of Queensland (Department of Education) [2024] QIRC 11
3 citations
Jump To
Cite 1 - [2024] QIRC 11
Cite 2 - [2024] QIRC 11
Cite 3 - [2024] QIRC 11
Mathers v State of Queensland (Queensland Health) [2024] QIRC 282
2 citations
Jump To
Cite 1 - [2024] QIRC 282
Cite 2 - [2024] QIRC 282
State of Queensland (Department of Education) v Johnston [2024] ICQ 18
5 citations
Jump To
Cite 1 - [2024] ICQ 18
Cite 2 - [2024] ICQ 18
Cite 3 - [2024] ICQ 18
Cite 4 - [2024] ICQ 18
Cite 5 - [2024] ICQ 18
Winter v State of Queensland (Department of Education) [2022] QIRC 350
2 citations
Jump To
Cite 1 - [2022] QIRC 350
Cite 2 - [2022] QIRC 350

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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