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  4. Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) (No. 2) - [2025] QIRC 36

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Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) (No. 2)[2025] QIRC 36

Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) (No. 2)[2025] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander  Partnerships, Communities and the Arts) (No. 2) [2025] QIRC 036

PARTIES:

Perkins, Sarah

(Applicant)

v

State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander  Partnerships, Communities and the Arts)

(Respondent)

CASE NO.:

TD/2022/205

PROCEEDING:

Application for reinstatement

DELIVERED ON:

7 February 2025

HEARING DATES:

26 and 27 March 2024, 29 July 2024 and 17 January 2025

DATES OF WRITTEN SUBMISSIONS:

Applicant's written submissions filed on 19 August 2024

Respondent's written submissions filed on 9 September 2024

Applicant's written submissions in reply filed on 23 September 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane and by video link to Rockhampton

ORDER:

Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 12 September 2022, is dismissed

CATCHWORDS:

INDUSTRIAL LAW –  QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – Applicant was employed by the Respondent   in the position of Project Support Officer in what was the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships – Applicant was required, as part of her employment, to have a working with children clearance or 'Blue Card' issued by the Chief Executive of the Department of Justice and Attorney General pursuant to s 220(2) of the Working with Children (Risk Management and Screening) Act 2000 – on 9 October 2020 the Department through which the Applicant was employed by the Respondent was advised that the Applicant had received a 'negative notice' which meant that her Blue Card had been cancelled – from December 2020 the Department examined redesigning the Applicant's position, or redeploying the Applicant, to provide her with suitable duties, given the cancellation of the Applicant's Blue Card – no suitable role was identified – on 2 March 2021, the Deputy Director-General of the Department wrote to the Applicant advising her that due to her Blue Card being cancelled, she was unable to meet the inherent requirements of her position and consideration was being given to terminating her employment on the basis the employment relationship was frustrated – the Applicant was given an opportunity to respond to the Deputy Director-General's letter before any decision was made – by letter dated 15 March 2021, the Applicant advised the Deputy Director-General that she had applied to the Queensland Civil and Administrative Tribunal for a review of the decision cancelling her Blue Card and, as an alternative, proposed that she be placed on leave without pay until a decision was made by the Queensland Civil and Administrative Tribunal – by letter dated 25 March 2021, the Deputy Director-General advised the Applicant that she would be placed on leave without pay pending the outcome of the decision of the Queensland Civil and Administrative Tribunal – between 25 March 2021 and 24 August 2022, the parties corresponded with each other about the progress toward a decision being made by the Queensland Civil and Administrative Tribunal about the Applicant's Blue Card – by email dated 24 August 2022, the Applicant advised the Deputy Director-General that the hearing of the review of the decision to cancel her Blue Card had not gone ahead on 26 July 2022 as she had previously advised – by letter dated 5 September 2022, the Deputy Director-General advised the Applicant that he considered her employment has been frustrated due to the cancellation of her Blue Card and that her employment was terminated as a result – Applicant applied for reinstatement – whether Applicant's dismissal was harsh, unjust or unreasonable – Applicant's dismissal not harsh unjust or unreasonable – Applicant's application dismissed

LEGISLATION:

Industrial Relations Act 2016, s 316, s 319 and s  320

Working with Children (Risk Management and Screening) Act 2000,  s 4, s 5, s 6, s 8, s 173, s 175, s 219, s 220 and ch 8

CASES:

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Gold Coast District Health Service v Walker [2001] ICQ 62; (2001) 168 QGIG 258

APPEARANCES:

The Applicant appeared on her own behalf

Ms L.K. Soldi of Counsel instructed by Ms C. Smith and later Ms M. York of Crown Law for the Respondent

Reasons for Decision

  1. [1]
    Ms Sarah Perkins was employed by the State of Queensland through, what was (for most of the period of the hearing of this matter) the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts ('the Department').[1]  Ms Perkins commenced employment with the State of Queensland on 19 February 1998.  Ms Perkins was dismissed effective 5 September 2022.
  1. [2]
    Between 12 June 2015 and 5 September 2022,[2] Ms Perkins was employed in the position of Project Support Officer, classification AO4, in the Youth Employment Program, Regional Services, Aboriginal and Torres Strait Islander Partnerships, Culture and Economic Participation, of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships.  The location of Ms Perkins' employment was Rockhampton.
  1. [3]
    Ms Perkins was required, as part of her employment in her position of Project Support Officer, to have a working with children clearance, otherwise known as a 'Blue Card', issued by the Chief Executive of the Department of Justice and Attorney-General ('DJAG') pursuant to s 220(2) of the Working with Children (Risk Management and Screening) Act 2000 ('the WWC Act').
  1. [4]
    On 9 October 2020, the Department was advised by DJAG that Ms Perkins had received a 'negative notice' which meant that her Blue Card had been cancelled.[3]
  1. [5]
    Following the Department receiving that advice from DJAG:
  • the Department unsuccessfully attempted to redesign Ms Perkins' position, to take into account that she did not have a Blue Card, and made other efforts to employ her in suitable duties; and
  • subsequently, by letter dated 2 March 2021, Dr Ian Mackie, Deputy Director-General, Culture and Economic Participation, advised Ms Perkins:
  1. –because her Blue Card had been cancelled, she was ineligible for child-related employment in the Department;
  2. –there were no other suitable alternative duties available for her; and
  3. –she had the opportunity to respond to Dr Mackie before any final determination was made in relation to her employment.[4]
  1. [6]
    By letter dated 15 March 2021, Ms Perkins advised Dr Mackie that she had made an application to the Queensland Civil and Administrative Tribunal ('QCAT') for a review of the decision to cancel her Blue Card.[5]
  1. [7]
    By letter dated 25 March 2021, Dr Mackie advised Ms Perkins that, as a consequence of her application to QCAT, and pending a decision from QCAT, she would be placed on leave without pay.[6]
  1. [8]
    Between 15 March 2021 and 5 September 2022, there was correspondence between Ms  Perkins and various officers of the Department about the status of Ms Perkins' QCAT application.
  1. [9]
    By letter dated 5 September 2022, Dr Mackie advised Ms Perkins that because she had provided no advice about progress towards QCAT making a decision about her application to review the decision to cancel her Blue Card, and because her Blue Card remained cancelled, he had made the decision to terminate her employment effective that date.[7]
  1. [10]
    By application filed on 12 September 2022, Ms Perkins sought an order, pursuant to s 319(a) of the Industrial Relations Act 2016 ('the Act') that she be reinstated to her position on the basis that her dismissal was unfair. Ms Perkins also applies for an order that the Department pay her the remuneration she has lost between the date of her dismissal and the date of her reinstatement.
  1. [11]
    The primary question for my determination is whether Ms Perkins' dismissal was harsh, unjust or unreasonable within the meaning of s 316 of the Act.
  1. [12]
    Ms Perkins gave evidence on her own behalf. The Department called evidence from:
  • Dr Mackie;
  • Mr Gregory Anderson, Executive Director of Regional and Infrastructure Coordination, Aboriginal and Torres Strait Islander Partnerships ('Mr Anderson'); and
  • Ms Heidi Bushell, who, at the material time, was employed in the Department in the position of Senior Human Resources Advisor ('Ms Bushell').
  1. [13]
    For the reasons that follow, Ms Perkins' dismissal was not harsh, unjust or unreasonable within the meaning of s 316 of the Act. The consequence is that, pursuant to s 319(b) of the Act, Ms Perkins' application for reinstatement will be dismissed.

The relevant provisions of the Working with Children (Risk Management and Screening) Act 2000

  1. [14]
    The WWC Act binds all persons including the State of Queensland.[8]
  1. [15]
    Sections 5 and 6 of the WWC Act provide:
  1. 5Object of Act

The object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring–

  1. (a)
    the development and implementation of risk management strategies; and
  2. (b)
    the screening of persons employed in particular employment or carrying on particular businesses.
  1. 6Principles for administering this Act

This Act is to be administered under the following principles–

  1. (a)
    the welfare and best interests of a child are paramount;
  2. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.
  1. [16]
    Section 8 of the WWC Act deals with the functions of the Chief Executive of DJAG under that Act and provides:
  1. 6Chief executive's main functions

The chief executive's main functions under this Act are–

  1. (a)
    to administer the scheme under chapters 7 and 8 that regulates–
  1. (i)
    persons employed, or proposed to be employed, in certain child-related employment; and
  2. (ii)
    persons carrying on, or proposing to carry on, certain child-related businesses; and
  1. (b)
    to audit or monitor compliance with chapters 7 and 8; and
  2. (c)
    to establish a register of regulated persons who provide home-based care services to children.
  1. [17]
    Section 175(1) of the WWC Act provides that an employer must not employ or continue to employ another person in regulated employment unless the employee holds a working with children clearance and the employer has given the Chief Executive of DJAG a notice, under s 173 of the WWC Act, about employing the employee in regulated employment. There is no dispute that the Department, as far as it employed Ms Perkins as a Project Support Officer, was involved in regulated employment within the meaning of the WWC Act.
  1. [18]
    Chapter 8, pt 4 of the WWC Act relevantly provides:
  1. Part 4Working with children clearances
  1. Division 9Deciding application
  1. 219Application of division

This division applies if a person made a working with children check (general) application and the application has not been withdrawn.

  1. 220Deciding application– generally
  1. (1)
    The chief executive must decide to approve or refuse the application under this division.
  2. (2)
    If the chief executive approves the application, the chief executive must issue a written notice that states the application is approved (a working with children clearance) to the person.
  3. (3)
    If the chief executive refuses the application, the chief executive must issue a written notice that states the application is refused (a negative notice) to the person.
  1. [19]
    It is obvious, from the provisions of the WWC Act, that it is the personal responsibility of the relevant individual to apply for and hold a Blue Card.[9]

Ms Perkins' position

  1. [20]
    The Role Profile for Ms Perkins' position as a Project Support Officer relevantly provided:

The Department of Aboriginal and Torres Strait Islander Partnerships has a lead role in enabling Aboriginal people and Torres Strait Islander people to contribute to, and enjoy, Queensland's prosperity and lifestyle through the delivery of whole-of-Government policies, programs and services.

We work closely with government agencies at all levels, industry and community representatives to:

  • enable people to acquire skills and abilities to actively participate in the Queensland economy
  • develop and implement social and economic initiatives to strengthen the capabilities of Aboriginal peoples and Torres Strait Islander peoples and their communities.

…

Role Scope

  • Support and lead projects to deliver outcomes related to Economic Participation:
  • More jobs and career opportunities – deliver the Youth Employment Program to support Aboriginal and Torres Strait Islander people to access employment opportunities
  • Support and lead projects to deliver outcomes related to Community Participation:
  • Support communities to value cultures and heritage – work with partners to increase service delivery standards to Aboriginal and Torres Strait Islander people; support and participate in the celebration of Aboriginal and Torres Strait Islander culture; support the implementation of government initiatives (e.g. Carmody reforms to the child protection system, implementation of the National Disability Insurance Scheme) in the region.

Key responsibilities of this role

  • Support projects related to the department's strategic initiatives including the Youth Employment Program; specifically:
  • Supporting DATSIP candidates to gain employment through linking them to employment opportunities, developing resumes and job applications and preparing for interviews
  • Delivering workshops and facilitating group discussions
  • Supporting candidates on the job for up to three (3) months after employment
  • Provide high quality written work and advice including: reports, briefs and project plans 
  • Support productive partnerships with government and non-government agencies to achieve quality service delivery outcomes for Aboriginal and Torres Strait Islander people
  • Work productively and collaboratively as part of the Far North Queensland team
  • Actively maintain knowledge of, and provide advice on issues relevant to local Aboriginal and Torres Strait Islander communities
  • Other priorities are requested by the Regional Director and Manager

…

Important information for applicants

  • A probationary period may apply to successful applicants to permanent roles who are external to the public service (unless advised otherwise).
  • Successful applicants will be subject to a criminal history check and/or blue screening for roles that work with children.[10]
  1. [21]
    It was not disputed by Ms Perkins, that for her to perform the duties of her position of Project Support Officer, she had to have a Blue Card.[11]
  1. [22]
    Indeed, Ms Perkins' evidence was that:
  • her position involved providing administrative support to the Youth Employment Program as referred to in the Role Profile;[12] and
  • she needed a Blue Card for her position[13] because of the support given to persons under the age of 18 years who accessed the Youth Employment Program.[14]

The cancellation of Ms Perkins' Blue Card

  1. [23]
    By letter dated 9 October 2020, Ms Judy Bailey, Acting Director, Blue Card Services (Screening Services) of DJAG informed the Department that under the WWC Act she (Ms Bailey) was required to notify the Department that she had cancelled the Blue Card previously issued to Ms Perkins, and that she had issued Ms Perkins with a negative notice,[15] being a 'negative notice' within the meaning of s 220(3) of the WWC Act. Ms Bailey further advised the Department that it must not employ, or continue to employ, Ms Perkins to perform paid or voluntary work with children or young people in regulated employment.[16]
  1. [24]
    Ms Perkins does not dispute that on about 9 October 2020, her Blue Card was cancelled by DJAG.[17] In fact, by email dated 13 October 2020 to her Departmental managers, Ms Perkins, of her own volition, advised that her Blue Card (issued on 2 November 2018) had been cancelled.[18] By a further email sent on the same day to the same Departmental managers, Ms Perkins stated:

I am able to seek a review of the decision of BlueCard to QCAT and have 28 days to make that application. I would like to seek advice on accessing that right, so I respectfully ask that the department allow me this time to make that application. In the meantime I believe that I can successfully complete the majority of my role that does not require contact with young people.[19]

  1. [25]
    At that time, Ms Perkins was working from home as a result of COVID–19 working arrangements.[20]

The steps taken by the Department to attempt to find suitable duties for Ms Perkins, or to redeploy her, after the cancellation of her Blue Card

  1. [26]
    Ms Perkins' evidence was that she knew that, without a Blue Card, she could not do the duties within the Youth Employment Program.[21] Ms Perkins stated, however, she could still do her duties, except engaging with children,[22] namely, she could not contact children and could not access a database about a child.[23]
  1. [27]
    Ms Perkins' evidence then was that:
  • despite her not being able to engage with children, she could still photocopy, file read, write and take calls from an adult;[24] and
  • only about 30% of her duties involved dealing with children under 18 years of age.[25]
  1. [28]
    Ms Perkins' contention is that she could still have been employed in her position, just not performing the percentage of duties that involved engaging with children.[26]
  1. [29]
    Following the cancellation of Ms Perkins' Blue Card, the task of trying to arrange or find other meaningful duties for her fell to Ms Bushell.[27] Ms Bushell was informed of the cancellation of Ms Perkins' Blue Card on 8 December 2020[28] and Ms Bushell commenced the task of attempting to arrange or find other meaningful duties for Ms Perkins, in earnest, from December 2020.[29]
  1. [30]
    In summary, Ms Bushell's evidence was that, in respect of the task of arranging or finding other meaningful duties for Ms Perkins, given that Ms Perkins did not have a Blue Card, she:
  • considered the duties involved in Ms Perkins' position;[30]
  • with the assistance of the Departmental officer who liaised with DJAG about Blue Cards (Mr Cameron Parker), considered the Department's obligations under the WWC Act;[31]
  • considered the risks associated with where Ms Perkins worked, namely, the frequency of people under 18 attending or phoning the office, and how those risks might be mitigated;[32]
  • arranged for Ms Perkins' manager (Mr David Thompson):
  1. –to identify for her what duties within Ms Perkins' team that could and could not be performed without a Blue Card; and
  2. –to estimate the time each duty might occupy on a weekly basis, including considering whether the duties Ms Perkins could not perform could reasonably be delegated to others;[33] and
  • identified and considered any other duties Ms Perkins could perform at other Departmental offices, including the Aboriginal and Torres Strait Islander Partnerships office at Hervey Bay and in the Disability Services division of the Department.[34]
  1. [31]
    Exhibit 3 was a document headed 'Planning suitable duties for Sarah Perkins' prepared by Ms Bushell which was her assessment of the feasibility of Ms Perkins' continued employment in her position, including by way of any relevant re-design of Ms Perkins' position and assessing whether Ms Perkins could work in other offices of Aboriginal and Torres Strait Islander Partnerships.
  1. [32]
    The Department submitted:[35]
  • Ms Bushell's evidence demonstrates that the assessment she undertook, about finding suitable duties for Ms Perkins in the absence of her having a Blue Card, was genuinely undertaken;
  • Ms Bushell's assessment makes plain the impracticability of continuing to employ Ms Perkins in her position and of redesigning her position;
  • the duties that could be performed by Ms Perkins were estimated to take only 11 hours per week[36] and the inherent requirements of the role could not be performed by Ms Perkins;
  • a reallocation of tasks was not feasible, particularly given the limited resources and high workload of Ms Perkins' team; and
  • Ms Bushell's evidence,[37] of the government Savings and Debt Recovery Plan in place at the time, meant there was no option to increase staff numbers as a solution.
  1. [33]
    Ms Bushell was not seriously challenged about her evidence in cross-examination.[38] The only relevant challenge came when Ms Bushell was asked in cross-examination why a casual position was not offered to her based on the reduced workload that Ms Bushell identified.[39] Ms Bushell's response was that such a request had never been made by Ms Perkins and, in fact (as discussed below) Ms Perkins had suggested, as an alternative,  to be placed on leave without pay.[40]
  1. [34]
    Ms Bushell's evidence – about the information she gathered about Ms Perkins' position, the duties that did not require Ms Perkins to engage with children, the duties that did require Ms Perkins to engage with children (and therefore possess a Blue Card) and, having regard to that information, whether Ms Perkins' position could be redesigned to allow her to continue working in her position – was clear and precise.
  1. [35]
    Ms Bushell concluded that, without a Blue Card, of all the duties performed by Ms Perkins in her position, she could not perform duties for 26 hours per week.[41]
  1. [36]
    Further, in respect of the duties that Ms Perkins could not perform without a Blue Card (for 26 hours per week), when regard is had to those duties (listed in the third columns on pages 4 to 13 of Exhibit 3) they are duties which are not inherently administrative.
  1. [37]
    More precisely, they are duties that directly align with the principle key responsibility of Ms Perkins' position as set out in the Role Profile, namely:
  • Support projects related to the department's strategic initiatives including the Youth Employment Program; specifically:
  • Supporting DATSIP candidates to gain employment through linking them to employment opportunities, developing resumes and job applications in preparing for interviews
  • Delivering workshops and facilitating group discussions
  • Supporting candidates on the job for up to three (3) months after employment.[42]
  1. [38]
    Finally, Ms Bushell gave evidence of the steps she took to attempt to redeploy Ms Perkins. While the efforts of Ms Bushell were unsuccessful, the steps she took were:
  • making enquiries with the Acting Regional Director, Mr Andrew Horn, about Ms Perkins remotely performing duties at the Aboriginal and Torres Strait Islander Partnerships office in Hervey Bay;[43] and
  • enquiring with the Regional Manager of Accommodation, Support and Respite Services, Rockhampton (part of the division of Disability Services of the Department as it existed at that time), if there were roles for Ms Perkins.[44]
  1. [39]
    Fundamentally, by late February 2021, Ms Bushell had come to the conclusion that, despite seeking suitable alternative duties for Ms Perkins within the Rockhampton and Hervey Bay Offices of Aboriginal and Torres Strait Islander Partnerships, and within Disability Services, no suitable roles could be identified.[45]
  1. [40]
    Having seen and heard Ms Bushell give evidence, and having regard to the documentary exhibits which involved her input, in particular Exhibit 3 (being Ms Bushell's researched and considered assessment of the provision of suitable duties for Ms Perkins) I accept that Ms Bushell's assessment was genuinely undertaken.  Ms Bushell directly answered the questions put to her, and she was precise in her answers. I accept the Department's submission that Ms Bushell did not embark on a box ticking exercise.[46]
  1. [41]
    For these reasons, I accept Ms Bushell's evidence and the Department's submissions about Ms Bushell's evidence.
  1. [42]
    There is one further matter. In her evidence, Ms Perkins said that:
  • the Department should have:
  1. –continued employing her in her position, maintained paying her salary at the AO4 classification, but directed her not to perform the duties she could not perform because she did not have a Blue Card;
  2. –re-distributed the duties she could not perform – because she did not have a Blue Card – to the person occupying a position (in the office) classified at AO3; and
  3. –maintained paying that person at the AO3 classification; and
  • the failure of the Department to put in place this arrangement meant her dismissal was unfair.[47]
  1. [43]
    It was not obvious, from her evidence, if this course of action suggested by Ms Perkins was temporary (pending any decision by QCAT about reviewing the cancellation of her Blue Card) or permanent. Ms Perkins seemed to suggest it was to be temporary.
  1. [44]
    The Department submits such a course was not logical or reasonable and should be rejected.[48] I agree. Whether the course of action proposed by Ms Perkins was to be permanent or temporary, it was clearly not feasible.  Given that it was Ms Perkins' own obligation to hold a Blue Card for her employment, the Department should not have been put to the obvious additional expense for such a proposal. Further, such a proposal would not have been fair to the other officer occupying the lower classified position and probably would have put the Department in dispute with that officer.

The interactions between Ms Perkins and the Department following Ms Bushell's conclusions

  1. [45]
    On about 2 March 2021, Dr  Mackie, in his capacity as Deputy Director-General, Culture and Economic Participation, received a briefing note about Ms Perkins in respect of which Ms Bushell was the contact officer. The briefing note relevantly advised:
  1. Ms Perkins commenced with the former DATSIP on 17 December 2012 and is currently employed as a Project Support Officer (A04) with the Youth Employment Program (YEP) based in the Rockhampton Office.
  2. The department received correspondence dated 9 October 2020 from Blue Card Services (BCS), Department of Justice and Attorney-General (DJAG) advising that a negative notice had been issued to Ms Perkins under the Working with Children (Risk Management and Screening) Act 2000 (the WWC Act).
  3. In accordance with departmental policy, Ms Perkin's access to the YEP database was revoked on Monday 14 October 2020.
  4. Ms Perkins had previously been directed to work from home commencing 25 September 2020, and this work arrangement has continued to date. Through the issuing of a negative notice from BCS, Ms Perkins has only been able to perform restricted and very limited duties under the work from home arrangement.
  5. As part of a routine Employment Status Check, BCS required confirmation by 18 December 2020 that Ms Perkins was not undertaking, or proposing to undertake, child-related activities.
  6. In responding to BCS, the department sought confirmation that the activities undertaken in the role of Project Support Officer to YEP constituted regulated employment under the WWC Act.

KEY ISSUES

  1. On 1 February 2021 the department received advice from BCS that the department would be in breach of the WWC Act if Ms Perkins recommenced her usual duties (Attachment 2).
  1. In seeking suitable alternative duties within the Rockhampton Offices of ATSIP and Disability Services, no suitable roles were identified.[49]
  1. [46]
    Dr Mackie accepted the recommendation in the briefing note,[50] which was to forward a draft letter (attached to the briefing note) to Ms Perkins. The consequence was that by letter dated 2 March 2021 to Ms Perkins, Dr Mackie relevantly stated:

I am writing to advise you that the department is in receipt of correspondence dated 9 October 2020 from Blue Card Services, Department of Justice and Attorney-General. In this correspondence, Blue Card Services have advised that your blue card, issue date of 2 November 2018 has been cancelled and that a negative notice had been issued to you.

As you would be aware Blue Card Services operate the blue card system in Queensland and determine who is eligible to work in child-related employment.

As a result of the negative notice and subsequent cancellation of your blue card, the department has considered suitable alternative duties and determined that none are available.

In line with mandatory legislative obligations, it has been determined that you are unable to meet the inherent requirements of your role as Project Support Officer, Rockhampton for the Youth Employment Program (YEP). Further, I am satisfied that it is not reasonably practicable for the department to maintain your employment and as such, I am currently giving consideration to terminating your employment with the department as the employment relationship has become frustrated.

…

Opportunity to respond

In accordance with the principles of natural justice, no final determination on the course of action to be taken has, or will be, made until you have had the opportunity to comment on the proposed action.

Accordingly you are hereby afforded a period of seven (7) calendar days from the date of receipt of this letter to make submissions to me in relation to the proposed action.

Your written response, if any, will be considered in my final determination of the action to be taken. If you do not respond, or if your response is received later that [sic] 7 calendar days from the date of receipt of this letter, a decision will be made based on the information before me.[51]

  1. [47]
    Ms Perkins responded by letter dated 15 March 2021 in which she stated:

Thank you for your letter dated 2 March 2021 which I received hand delivered via a meeting with the Central Queensland Regional Director, Program Manager and two Human Resources officers on 10 March 2021 where I was provided the opportunity reply to you by close of business 17 March 2021.

Your letter advises me that the department is in receipt of correspondence dated 9 October 2020 from Blue Card Services, which advises that my blue card issued 2 November 2018 has been cancelled and that a negative notice had been issued to me. As a result of the negative notice and subsequent cancellation of my blue card, I understand the Department has determined that I am unable to meet the inherent requirements of my role as Project Support Officer, Rockhampton for the Youth Employment Program and that no suitable alternative duties were available to support my continued employment. Given this, you are currently giving consideration to terminating my employment as the employment relationship has become frustrated.

The penalty proposed is severe and will have long term, significant and far reaching detrimental effect on myself and my family. I believe the penalty proposed is harsh and unreasonable and I propose an alternate penalty be considered.

This Blue Card Services Cancellation and issue of Negative Notice assessment placed upon me is not to my satisfaction and I have lodged an application to the Queensland Civil and Administrative Tribunal (QCAT) to review the decision. Similar Blue Card negative notices have been recently reviewed by the tribunal and they are the independent body to review why I believe Blue Card Services decision is wrong.

Until then if you were to terminate my employment you will cause a great deal of financial stress and hardship for the stability of my family and dog–  meeting my household expenses for shelter, warmth, water, cooking, electricity, health, further study and transport. An employment loss will have great cumulative effect on my superannuation and insurances meant for me to retire on.

I insist you do not pursue direction under Working with Children (Risk Management and Screening) Act 2000 at this time whilst the application of a wrong decision sits with QCAT. I acknowledge that the negative notice and cancellation of my Blue Card does have an impact on my substantive employment. I have sought an appeal of Blue Card Service's decision in this respect. The matter is before QCAT who have progressed my application. I am currently waiting on arrangements for the compulsory conference before QCAT. I have also consulted with the Queensland Human Rights Commission and will be speaking with their complementary legal advisor on 26 March 2021. I off [sic] this information for your consideration and to demonstrate that I remain committed to my ongoing employment with the Department. I am hopeful that the outcome of those processes will mean that the decision to cancel my Blue Card will be reversed and that I will once again be able to perform my duties as normal. I would ask that you please take these steps I've taken into consideration and that you do not cease my employment at this time.

In the mean time, I believe I can continue to fulfil other administrative and project duties satisfactorily in the role I perform as the Central Queensland Project Support Officer to support the Central Queensland Regional Business Plan through Culture and Economic Participation. I can identify other departmental programs or activities unrelated to the Youth Employment Program and which have direct interaction with children under the age of 18 where I can remove myself from whereas to respect the responsibilities of young people's activities and their engagement with government.[52]

  1. [48]
    Ms Perkins then went on to set out for Dr Mackie:
  • her overall work record with the Department;
  • a number of extenuating or mitigating circumstances; and
  • the extent to which her family, in particular her daughter who was under the age of 18 years, relied on her income.
  1. [49]
    Ms Perkins concluded by proposing alternative penalties to her dismissal. In this regard, Ms Perkins stated:

I genuinely believe the penalty proposed is harsh, unjust and unreasonable and I submit that an alternative penalty would be more appropriate with respect to the verifiable facts of the matter, the impact of the penalty on my family and myself and also the other considerations stated in your letter and referred to in this response. The alternative action I would propose be taken is to reconsider the distribution of duties amongst the Central Queensland regional office given the new departmental strategy where duties do not require a blue card whilst my QCAT matter resolves. I am happy to perform whatever duties I am allocated in this period and am committed to assisting wherever required.

Alternatively, I would propose that I be placed on leave without pay from the Youth Employment Program for the duration of time it takes for my QCAT matter to be heard as I am hopeful to have my Blue Card reinstated. I believe doing so is a fair and reasonable approach to the matter to allow for the review mechanisms to be exhausted as I am genuinely concerned that the impacts of losing my employment will be devastating.[53]

  1. [50]
    By letter dated 25 March 2021, Dr  Mackie responded to Ms Perkins.[54] In fact, by that letter Dr Mackie took up Ms Perkins' second alternative as proposed by her. Dr Mackie advised Ms Perkins that after careful consideration of all the information and available evidence, including her response, she would be placed on leave without pay pending the outcome of her '… appeal of the decision by Blue Card Services being undertaken through QCAT.' [55]
  1. [51]
    Relevantly, Dr Mackie also stated:

QCAT appeal

As the appropriate delegate for his matter, you are to advise me of the date at which you lodged a notice of appeal with QCAT regarding the decision by Blue Card Services, and if/when known to you, the dates of any scheduled QCAT hearings or compulsory conferences regarding the matter. This advice is to be forwarded to me by email marked 'confidential' by 5pm on Tuesday 6  April 2021.[56]

  1. [52]
    By email from Ms Perkins to Dr Mackie sent on 6 April 2021, Ms Perkins advised that she lodged her appeal '… regarding the blue card decision on 12/11/2020' and that '… my matter should be heard at a date and time within the next 3 months – QCAT cannot provide me a schedule date and time yet.'[57]
  1. [53]
    By further email from Ms Perkins to Dr Mackie sent on 19 May 2021, Ms Perkins advised Dr Mackie that the compulsory conference before QCAT regarding her appeal against the cancellation of the Blue Card had been scheduled for 24 May 2021.[58]
  1. [54]
    After Ms Perkins' email to Dr Mackie sent on 19 May 2021, Ms Perkins exchanged emails with officers of the Department regarding the QCAT proceeding about the cancellation of her Blue Card.[59]
  1. [55]
    By email from Ms Bushell to Ms Perkins dated 25 May 2021, Ms Bushell enquired if Ms Perkins had any updates on progress and any information about the next step regarding her appeal (in QCAT).[60] By a response email on the same day, Ms Perkins advised Ms Bushell that the '… lawful matter is sitting with QCAT and has gained further progression.'[61]
  1. [56]
    By email from Ms Bushell to Ms Perkins sent on 2 September 2021, Ms Bushell asked Ms Perkins if she had received notification of when her QCAT hearing had been scheduled. By return email from Ms Perkins to Ms Bushell, sent two months later on 2 November 2021, Ms Perkins informed Ms Bushell that: 'I have my QCAT hearing scheduled for Friday 5 November 2021.'[62] By email from Ms Perkins to Ms Bushell sent on 10 November 2021, Ms Perkins advised that: 'My matter was vacated on 5 November 2021, waiting in time for further directions – QCAT to resolve this case.'[63]
  1. [57]
    Then, in response to an email from Ms Bushell sent on 7 March 2022, by email dated 8 March 2022, Ms Perkins advised Ms Bushell that to date she had not received an outcome about her case and that she was '… meeting again with the tribunal 22 March 2022.'[64]
  1. [58]
    On 5 April 2022, Ms Jess Pullum, Senior Advisor, HR Services of the Department, emailed Ms Perkins specifically seeking an update regarding the outcome of Ms Perkins' QCAT hearing. While Ms Perkins responded by email sent on 6 April 2022, Ms Perkins did not answer Ms Pullum's question regarding the outcome of her (Ms Perkins') QCAT hearing. Ms Perkins relevantly wrote:

Communication about my legal matter is corresponded to the Deputy Director-General ATSIP and should there be a change in person from Mr Ian Mackie, please let me know.[65]

  1. [59]
    By letter dated 13 April 2022, Dr Mackie then wrote to Ms Perkins in the following terms:[66]

I refer to my correspondence to you dated 25 March 2021, in which I advised you that I would approve leave without pay while you sought a review regarding the decision of Blue Card Services to cancel your Blue Card. I am aware that you were pursuing an appeal through the Queensland Civil and Administrative Tribunal (QCAT) and on 8 March 2022, you advised Ms Heidi Bushell, former Senior Advisor, HR Services, Human Resources and Ethical Standards (HRES), that you were meeting again with the tribunal on 22 March 2022. I am also aware that Ms Jess Pullum, Senior Advisor, HR Services, HRES emailed you on 5 April 2022, requesting an update regarding the QCAT Hearing. On 6 April 2022, you responded to Ms Pullum and advised that communication would come to me.

Given that your tribunal date has now passed, and you have not provided me with any information, I am now requesting an update in relation to the status of your appeal and specifically whether you now have a valid Blue Card. Please provide me with the QCAT decision, your Blue Card status or other relevant documentation as soon as possible or within seven days of receiving this letter. It has now been over 12 months since I approved your leave without pay for you to pursue your appeal and I consider this a reasonable timeframe for you to have resolved the matter.

I would also like to remind you that the requirement to hold a Blue Card still applies to your role as Project Support Officer. As such, if the QCAT decision was that your Blue Card is to remain cancelled, I will need to consider how this affects your employment.

  1. [60]
    Ms Perkins responded to Dr Mackie by letter dated 26 April 2022 in which she relevantly stated:

I am replying to your correspondence which I received on 20th April 2022 requesting me to reply to you within seven days. I would have written to you sooner had I not fallen ill.

To date my Blue Card is cancelled negative notice. The Queensland Civil and Administrative Tribunal (QCAT) is pending a decision until a scheduled date on 26 July 2022. In the meantime I am awaiting on confirmed directions and a latest criminal history check. Viewing latest documentation is not available at this time. Since the commencement of my case any anticipation I held about its duration was impacted upon by this state experiencing a pandemic of COVID-19 amongst the tribunal's preparation to reach a decision date. I shall keep you informed about any change to this date and/or documentation when this becomes available.[67]

  1. [61]
    Dr Mackie responded by further letter dated 12 May 2022, by referring to Ms Perkins' statement (as set out above) in her letter dated 26 April 2022, and relevantly stated:
  • given the known delays which have occurred with tribunal matters during COVID-19, and as the date of 26 July 2022 was less than three months away, he considered it reasonable to wait until that time before making any decision in relation to Ms Perkins' employment, and that he would approve her leave without pay until that time; and
  • should Ms Perkins' matter at QCAT be delayed any further, he would need to see official notification of that prior to considering further leave.[68]
  1. [62]
    By email from Ms Perkins to Dr Mackie sent on 16 May 2022, Ms Perkins:
  • stated: 'For your information as per my correspondence 26 April 2022 the attached documents verify my progress';[69] and
  • attached a Directions Order from QCAT, issued by Member Kent dated 22 March 2022, of which the case number and two paragraphs were redacted, but which stated that the matter was listed for a full day hearing in Rockhampton '… on a date to be advised and in a format to be advised.'[70]
  1. [63]
    By letter dated 8 August 2022, Dr Mackie wrote to Ms Perkins traversing the history of the circumstances of the cancellation of her Blue Card up to that time. Dr Mackie also relevantly stated that if Ms Perkins' Blue Card remained cancelled or if the QCAT process was still ongoing, he needed to make a determination in relation to her employment as he was unable to approve her continued leave. Consequently, Dr Mackie referred to his letter to Ms Perkins dated 2 March 2021 in which he advised her that due to mandatory legislative obligations, she was unable to meet the inherent requirements of her role as Project Support Officer, it was not reasonable for the Department to continue her employment and that he would consider terminating her employment '… as the employment relationship has become frustrated.' Dr Mackie gave Ms Perkins seven days to respond to the proposed action.[71]
  1. [64]
    Ms Perkins responded by letter dated 15 August 2022. The letter was headed 'Opportunity to respond'. Ms Perkins stated:
  • Dr Mackie's proposal to terminate her employment was harsh, unjust and unreasonable;
  • she had been experiencing a great deal of financial stress and hardship since being placed on leave without pay; and
  • she had unsuccessfully applied for six positions within the Queensland government and that her options for employment outside of the Queensland government were limited because of the COVID-19 pandemic and other matters such as relocation fees, pre-employment costs and '… skillset and so forth.'[72]
  1. [65]
    Ms Perkins then set out her overall work record including that her criminal history checks, provided to Dr Mackie by email on 15 April 2021 and 16 May 2022, indicated '… reputable results'. Ms Perkins concluded by stating that the time taken by QCAT '… has requested my patience given their own impacts' and that the situation was a trying time for her in respect of which she then indicated she would access the Department's Employee Assistance Service as needed. Ms Perkins concluded by stating that she was looking forward to returning to her position and '… the added sensibility the job brings to make a positive impact at work.'[73]
  1. [66]
    Dr Mackie then, by email sent on 18 August 2022, made a further request that Ms Perkins provide the following information by close of business on 24 August 2022:
  1. –whether the QCAT hearing on 26 July 2022 went ahead and, if so, the outcome;
  2. –if a decision was pending, the expected timeframe of the decision;
  3. –if the matter had not been heard, when it would be heard; and
  4. –official documentation to confirm the above information as sought by him (Dr Mackie).[74]
  1. [67]
    Ms Perkins responded by email on 24 August 2022 advising that the matter did not go ahead before QCAT on 26 July 2022 '… or any time beforehand as I anticipated.' Ms Perkins also attached the same redacted QCAT Directions Order issued by Member Kent, dated 22 March 2022, as referred to earlier in paragraph [62] of these reasons.[75]
  1. [68]
    By letter dated 5 September 2022, Dr Mackie informed Ms Perkins of the termination of her employment effective the same day. Dr Mackie gave reasons for his decision to terminate Ms Perkins' employment. Dr Mackie relevantly stated:

I have now fully and carefully considered all the information available to me, including your response dated 15 August 2022 and your email dated 24 August 2022 and determined to proceed with making my decision in relation to this matter based on the available material.

I note that in your response, you advise that there has been no progress in relation to your QCAT matter and that your Blue Card remains cancelled. In response to my proposal to terminate your employment, you describe financial hardship which you state you have experienced since commencing unpaid leave and that you have been unsuccessful in applying for government positions. Although I acknowledge and sympathise with the potential financial impact of your situation, I note that your commencement on unpaid leave in April 2021 was not a departmentally imposed sanction, but an unavoidable consequence of the instruction by Blue Card Services on 9 October 2020 not to employ you in regulated employment.

In your response, you refer to your overall work history, which is not in dispute. Similarly, you refer to your criminal history checks from April 2021 and May 2022 which you stated indicated 'reputable results', albeit that these documents refer only to releasable court outcomes. Irrespective of these factors, they do not overrule your actions which have resulted in the cancellation of your Blue Card, and consequently render you unable to meet the inherent requirements of your role.

I note that in your response you refer to my correspondence dated 25 March 2021, in which I stated you would be '… placed on leave without pay pending the outcome of your appeal of the decision by Blue Card Services being undertaken through QCAT'. This agreement was made with the expectation that the QCAT matter would be resolved in a reasonable period of time, however you advise that this has not yet occurred. You have not provided me with any official documentation regarding hearing dates for the expected resolution of your QCAT matter and accordingly, the department cannot reasonably be expected to approve your leave without pay indefinitely. Given that it is almost two years since you have been unable to work in your substantive role, I consider that I have provided you ample opportunity to pursue your review options.

You advise that my proposal to terminate your employment is 'harsh, unjust and unreasonable'. I do not consider this proposal to be unreasonable, given that the proposed termination of your employment is a consequence of the frustration of your employment contract. Neither do I consider it harsh or unjust, as you are unable to meet the requirements of your role which requires a current, valid Blue Card under the Working with Children (Risk Management and Screening) Act 2000.

I have explored whether there are any other roles at the same level, in the same or similar location and within your skillset which do not require a Blue Card and am unable to find any suitable position into which you could be transferred.

As advised in my correspondence dated 8 August 2022, in accordance with mandatory legislative obligations, you are unable to meet the inherent requirements of your role as a Project Support Officer, Youth Employment Program, Central Queensland Region, Culture and Economic Participation. After considering all the information available to me, including your responses dated 15 August 2022 and 24 August 2022, I am satisfied that it is not reasonably practicable for the department to maintain your employment. As such, I have determined to terminate your employment.[76]

  1. [69]
    The Department relevantly submitted (footnotes omitted):
  1. Plainly, the applicant was not proactive in providing updates to her employer. Despite giving evidence that she received written correspondence from QCAT confirming the next step, in the 18 months that passed, she provided only one – redacted – QCAT document to Dr Mackie. She, quite inexplicably, provided this twice: first in May 2022, and second in August 2022 – after she had been reminded of the possibility of dismissal, and despite it seeming as though a hearing in July 2022 had not gone ahead, which presumably would have attracted some written confirmation. Dr Mackie's rhetorical question – 'how long is a piece of string?' is apt, and his frustration perhaps understandable.
  2. The applicant in her evidence denied her responses to the respondent were deliberately evasive. The respondent contends this is the only logical explanation for the updates as set out above, which over time were increasingly non-specific and provided only in response to requests from the respondent. This is supported by the explanation offered by the applicant: that she considered the requests for updates, and particularly documentation, to be an offensive invasion of her privacy. She prioritised protecting herself over jeopardising her career by not giving the respondent what was requested.
  3. Contrary to the applicant's assertion, the respondent contends the applicant was not acting reasonably in her dealings with the respondent during this time. In circumstances where a significant period of time had passed, and she was on leave without pay for the purpose of exhausting her appeal options, it was reasonable for the respondent to expect that she would comply with the direction to provide updates. These were important in circumstances where the applicant remained on leave without pay for an indeterminate period of time, and no apparent progress had been made in the previous 18 months.
  1. [70]
    I accept these submissions in general. This is for a number of reasons.
  1. [71]
    First, the documentary evidence set out above demonstrates that Ms Perkins did not meaningfully comply with:
  • Dr Mackie's direction to her on 25 March 2021, namely, to provide to him '… if/when known to you, the dates of any scheduled QCAT hearings or compulsory conferences regarding the matter.';
  • Dr Mackie's request for information by letter dated 13 April 2022 which included a request for '…the QCAT decision, your Blue Card status or other relevant documentation as soon as possible or within seven days' of her receipt of Dr Mackie's letter; and
  • Dr Mackie's clear and particularised request for information and documentation sent by email on 18 August 2022, namely:
  1. –whether the QCAT hearing on 26 July 2022 went ahead and, if so, the outcome;
  2. –if a decision was reserved, the expected timeframe of the decision;
  3. –if the matter had not been heard, when it would be heard; and
  4. –official documentation to confirm the above information as sought.
  1. [72]
    Dr Mackie's evidence in chief, about the nature of the information provided by Ms Perkins following his direction and requests to her, was that he felt '… like we were getting the run around' which then led to his decision to start the process that ultimately resulted in his decision to terminate her employment.[77] Dr Mackie was not cross-examined.[78]
  1. [73]
    I accept Dr Mackie's evidence. Most of the information provided by Ms Perkins to the Department was vague or was non-responsive to specific follow up questions asked by different officers of the Department. In the case of the one QCAT document Ms Perkins provided to Dr Mackie, she significantly redacted it so that it made no meaningful sense in terms of the particular information sought by Dr Mackie. 
  1. [74]
    Secondly, Ms Perkins was extensively cross-examined about her continued failure to provide meaningful information to the Department, about her QCAT proceeding, as sought by Dr Mackie and others from the Department.[79] Ms Perkins' evidence was entirely unsatisfactory. Ms Perkins did not give any evidence which persuaded me that she had a good reason not to meaningfully comply with Dr Mackie's direction of 25 March 2021, and his subsequent requests on 13 April 2022 and on 18 August 2022, to provide relevant information about her QCAT proceeding concerning her Blue Card. I form this view for a number of reasons.
  1. [75]
    One, Dr Mackie had been very fair to Ms Perkins by granting her leave without pay so that she could challenge the decision, to cancel her Blue Card, before QCAT.  If she was successful before QCAT, then she could resume her substantive position. In such a circumstance, it was a reasonable direction, and a reasonable request, by the Department that Ms Perkins provide clear and precise information about the QCAT litigation, including when a hearing would take place that may result in a decision about reinstating her Blue Card. After all, the leave had been granted to Ms Perkins for the very purpose of her being able to have her Blue Card reinstated by virtue of the QCAT proceeding. Thus, the result of the QCAT proceeding was at the centre of her continued employment in the Department.
  1. [76]
    Two, as set out above, Ms Perkins informed the Department that:
  • there was a QCAT conference scheduled for 24 May 2021;
  • her QCAT hearing was scheduled for 5 November 2021;
  • the QCAT hearing scheduled for 5 November 2021 was vacated;
  • she was '… meeting again with the tribunal on 22 March 2022'; and
  • QCAT '… is pending a decision until a scheduled date on 26 July 2022'.
  1. [77]
    On 16 May 2022 Ms Perkins sent Member Kent's Directions Order, dated 22 March 2022, to Dr Mackie. Ms Perkins redacted the case number and the substantive directions orders.[80]  On 24 August 2022, Ms Perkins then advised the Department that the hearing scheduled for 26 July 2022 did not go ahead and again attached Member Kent's (redacted)  Directions Order dated 22 March 2022.
  1. [78]
    Ms Perkins gave evidence that:
  • every communication she had from QCAT, about her proceeding in that tribunal concerning her Blue Card, apart from the times she appeared before the tribunal, was by email and in writing;[81] and
  • prior to the final hearing before QCAT in February 2023, she had '… probably four teleconferences' with QCAT.[82]
  1. [79]
    Yet, on the evidence before me, only one document emanating from QCAT was ever provided by Ms Perkins to the Department, being Member Kent's Directions Order dated 22 March 2022 which she redacted.[83]
  1. [80]
    Ms Perkins could provide no sensible or understandable reason, having regard to her evidence that every communication she had from QCAT was by email and in writing (other than when she appeared before the tribunal), why she only provided the one significantly redacted QCAT document to the Department. The transcript relevantly records the following:

Sorry, I might just – I'll try to refocus you. What I suggest to you is that for the very first time, this was you giving the Department any documented – any document related to QCAT. I'm not talking about you writing in an email. I mean a document from or about QCAT?---Okay. 

Yes?---So if that's the document that I have – have got and have provided that to the Department, if you're saying it's the first document, well, I believe you.

Okay. All right then. The – do you accept that this document says – it's dated the 22nd of March 2022, and it says nothing about a hearing listed on the 26th of July 2022?---Can you say that again?

Yes. Can you look at the – at page 211 - - -?---Yep.

- - - which is the attachment to your email?---Yes.

It's a document dated the 26th of March 2022[84] and it says nothing about a hearing on the 26th of July 2022?---Correct.

All right. But that's the document that you chose to provide to Dr Mackie?---That is the document that I chose to provide to Dr Mackie because that was the latest document in my possession.

Ms Perkins, I'm struggling to understand that because you knew that there was going to be a hearing on the 26th of July 2022, so how is it that you didn't have a document saying that, when your earlier evidence is that you would always receive a document from QCAT about what was to happen next?---You're confused, yes. In my mind, I'm writing to the department from myself to – to – to the Department and if it – it does look like that I haven't provided – I did not realise that I had to provide a copy of personal Queensland Civil Administrative Tribunal documents to verify, without in being in a court of law, to the workplace.

How did you not realise that when the letter to you from Dr Mackie talked about needing to see official notification?---Needing to see official notification?

Yes. So how did you not realise that that is precisely what was required of you?---I must have overlooked that.

You must – okay. All right. It - - -?---And I do that because maybe I just didn't read his letter properly. The time – at that time, the – I – I know that I felt concerned, worried, at times stressed, and so my usual behaviour, organised behaviour, was – was – was unavailable because of something jeopardising my career and, in fact, the blue card - - -

And so can I ask you – can I ask you this?--- - - - working with children.

If you're concerned, worried and stressed about the way in which your career was being jeopardised, wouldn't you want to make absolutely certain that you were giving your employer everything they asked for?---No.

Why?---Because I feel that's an invasion of privacy as well. That's just like taking all of my clothes off, my underwear, bra, everything, dangling it in front of him and say, I'm your wife. I'm not your wife. This is not my - - -

Ms Perkins?---This is a – this is a clearly personal matter that it has just reached me and it feels like that. It does. It does. And is this a joke? Is this a joke coming my way? Or is it – is this clearly this lifechanging moment - - -

Sorry - - -?--- - - - and you know what - - -

- - - Ms Perkins, I'm not trying at all to be insensitive but what I am suggesting you is that there was nothing improper, unfair, or unreasonable about your employer saying in order to extend your leave without pay, while we give you the opportunity to appeal an order that does not favour you, in order to keep your job, we need to know that something is actually happening?---And my word wasn't good enough. My email communication, my word, wasn't good enough even though it's well-known that appeal processes exist in – in – in legal procedure. I took it up - - -

And there was no question at all that – that a legal process, an appeal process, was available to you and you had been given the opportunity to take that up. If you were that concerned about keeping your job, why did you prioritise protecting your own privacy, in circumstances where all you were being asked for was a document that, presumably, would have just had a date on it and nothing more. Why would you prioritise that over satisfying your employer?---Because I put myself first.[85]

  1. [81]
    When asked (by me) why she redacted the case number from Member Kent's Directions Order dated 22 March 2022, her evidence was:

I just felt that it was, at that time, an invasion of privacy because I didn't like how the senior officers operated in that department. They were just nosy people, enquiring about things that weren't their business. And you must remember that I'm a public servant and I've had to deal with other government officers, especially at a central office level, and I've – I've – I felt that redacting the case number was just a personal safeguard for myself so that someone else in Brisbane in a Williams Street office wasn't going snooping around looking for – for my personal business at – my own protection for my own family.

All right?---So why would a Director-General need a case number is what I've asked myself and I've answered it there. I don't think he needs it. But he certainly needs a logo and a – an A4 document with a centred – I mean I could – I could – I could jimmy that up. I could – I could write that up. I don't even know if it's true.[86]

  1. [82]
    The circumstances were that Ms Perkins' Blue Card was cancelled, however, she was not dismissed despite the requirement she hold a Blue Card, and she was granted leave without pay whilst she challenged the decision to cancel her Blue Card before QCAT.
  1. [83]
    I do not accept Ms Perkins' evidence that the protection of her privacy was an explicable reason for her not properly complying with Dr  Mackie's directions and requests, given that her continued employment in the Department was at stake. That reason, in the circumstances faced by Ms Perkins, does not accord with common sense. On the evidence before me, Dr Mackie, and the other Departmental officers, were not asking Ms Perkins for information about why her Blue Card was cancelled. Dr Mackie and the other Departmental officers were asking for information and relevant documentation about when QCAT was going to make a decision about Ms Perkins' application to review the cancellation of her Blue Card. This was for the sole purpose of establishing when it may be likely Ms Perkins could resume her substantive position on the basis her Blue Card was reinstated as a consequence of a positive decision by QCAT.

The Industrial Relations Act 2016 and the applicable legal principles

  1. [84]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [85]
    A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted.  Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer.  Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[87]
  1. [86]
    In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[88]
  1. [87]
    Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
  • whether the employee was notified of the reason for dismissal;
  • whether the dismissal related to:
  1. –the operational requirements of the employer's undertaking, establishment or service; or
  2. –the employee's conduct, capacity or performance; and
  • if the dismissal related to the employee's conduct, capacity or performance:
  1. –whether the employee had been warned about the conduct, capacity or performance; or
  2. –whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  • any other matters the Commission considers relevant.
  1. [88]
    In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[89]

Ms Perkins' application for reinstatement, her contentions and her submissions

  1. [89]
    Ms Perkins, in her application for reinstatement filed on 12 September 2022, does not give any clear reasons why she contends her dismissal was harsh, unjust or unreasonable.
  1. [90]
    In her statement of facts and contentions filed 15 June 2023, Ms Perkins' case seems to be that her dismissal was harsh, unjust or unreasonable because she could have been redeployed to other positions within the Department that did not require her to hold a Blue Card.
  1. [91]
    Ms Perkins' written submissions filed on 19 August 2023 and 23 September 2023 do not address the evidence in respect of the relevant issues contained in s 320 of the Act.

The Department's contentions

  1. [92]
    The Department contends that:
  • Ms Perkins could no longer be employed in regulated employment under the WWC Act when she did not have a Blue Card;
  • Ms Perkins, by Dr Mackie's letter dated 5 September 2022, informed her of the reasons for her dismissal;
  • Ms Perkins, over the 18 month period prior to the termination of her employment, was given an opportunity to respond in relation to the proposed termination of her employment; and
  • there were no alternatives to the termination of Ms Perkins' employment in that:
  1. –it was not possible for her to perform the duties from home where direct engagement with children, including by telephone, was a primary function of the role of Project Support Officer; and
  2. –at the time her employment ended, there were no vacant positions located within the Department consistent with her skillset.[90]
  1. [93]
    For these reasons, the Department contends that Ms Perkins' dismissal was not harsh, unjust or unreasonable.[91]

Was Ms Perkins' dismissal harsh, unjust or unreasonable having regard to the matters referred to in s 320 of the Act?

Was Ms Perkins notified of the reason for dismissal?

  1. [94]
    Ms Perkins was notified, in writing, of the reasons for her dismissal by Dr Mackie's letter to her dated 5 September 2022.[92]

Did the dismissal relate to Ms Perkins' capacity?

  1. [95]
    The dismissal related to Ms Perkins' incapacity to perform her role as a Project Support Officer.
  1. [96]
    The issue of Ms Perkins' incapacity arose because it was a requirement that she hold a Blue Card to be able to perform the duties of her position of Project Support Officer. From October 2020, Ms Perkins did not hold a Blue Card. For the reasons I have given in paragraphs [45] to [83] of these reasons, the Department gave Ms Perkins every reasonable opportunity to remedy her incapacity by her application to  the QCAT.

Was Ms Perkins warned about her lack of capacity?

  1. [97]
    In my view, Ms Perkins was warned about her lack of capacity to perform the duties of her position, in the absence of her having a Blue Card, by Dr Mackie's first letter to her dated 2 March 2021.[93]

Was Ms Perkins given an opportunity to respond to the claim about her lack of capacity?

  1. [98]
    Ms Perkins, by Dr Mackie's letter dated 8 August 2022[94] and by his email to Ms Perkins sent on 18 August 2022,[95] was given an opportunity to respond about her incapacity before the decision was made to dismiss her. Specifically, by his email sent on 18 August 2022, Dr Mackie gave Ms Perkins a further opportunity to inform him about when QCAT would be making a decision about her Blue Card. By letter dated 15 August 2022, Ms Perkins responded to Dr Mackie's letter dated 8 August 2022.[96] By email sent on 24 August 2022,[97] Ms Perkins responded to Dr Mackie's email sent on 18 August 2022.

Other matters the Commission considers relevant

Did the Department make a genuine attempt to find other suitable duties for Ms Perkins?

  1. [99]
    For the reasons I have given in paragraphs [26] to [44] of these reasons, the Department made a concerted effort to try to find other suitable duties for Ms Perkins.
  1. [100]
    Further still, even after Ms Perkins' final response to him about why she should not be dismissed, Dr Mackie, before he made the decision to dismiss Ms Perkins, enquired with the relevant Executive Director, Mr Anderson, if there was an alternative position for Ms Perkins that did not require a Blue Card.[98] Dr Mackie's unchallenged evidence was that no such position was available at that time.

Was Ms Perkins' dismissal proportionate action by the Department?

  1. [101]
    In my view, Ms Perkins' dismissal was proportionate action by the Department.
  1. [102]
    Ms Perkins could not  demonstrate to the Department that she had a Blue Card or when it was reasonably likely she would have a decision from QCAT about whether her Blue Card would be reinstated. 
  1. [103]
    It was necessary for Ms Perkins to have such a clearance to be able to work in her position of Project Support Officer.

Conclusion

  1. [104]
    It was a requirement of her position that Ms Perkins hold a Blue Card issued by the Chief Executive of DJAG. From about October 2020, Ms Perkins did not hold a Blue Card.
  1. [105]
    Ms Perkins was given every opportunity by Dr Mackie to be able to make a case to QCAT for a review of the decision to cancel her Blue Card prior to taking action to dismiss her. Dr Mackie reasonably gave Ms Perkins that opportunity between March 2021 and August 2022.
  1. [106]
    Even after all that time, Ms Perkins would not provide Dr Mackie with any clear and unambiguous advice or evidence as to when QCAT would hear and determine her application to review the decision to cancel her Blue Card.
  1. [107]
    Further, on the evidence before me, the Department did take genuine steps to try to provide suitable duties to Ms Perkins following the cancellation of her Blue Card.
  1. [108]
    For the reasons I have given above, from a substantive perspective, and also from a procedural fairness perspective, the decision by the Department to dismiss Ms Perkins effective 5 September 2022 was not harsh, unjust or unreasonable.
  1. [109]
    For these reasons, Ms Perkins' application for reinstatement is dismissed.

Order

  1. [110]
    I make the following Order:

Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 12 September 2022, is dismissed

Footnotes

[1] Now the Department of Women, Aboriginal and Torres Strait Islander Partnerships and Multiculturalism.

[2] The amended statement of facts and contentions of the State of Queensland, through the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Community and the Arts, filed on 22 December 2023 ('the Department's contentions'), para. 2.

[3] Exhibit 17, pages 146 to 150 of the Hearing Bundle ('HB').

[4] Exhibit 4, pages 178 to 198 of the HB.

[5] Exhibit 1, pages 199 to 201 of the HB.

[6] Exhibit 5, pages 202 to 204 of the HB.

[7] Exhibit 15, pages 226 to 228 of the HB.

[8] Working with Children (Risk Management and Screening) Act 2000, s 4(1).

[9] See generally ch 8 of the Working with Children (Risk Management and Screening) Act 2000.

[10] Exhibit 2, pages 142 to 145 of the HB. Ms Perkins accepted that while the Role Profile (Exhibit 2) referred to the position of Project Support Officer in Cairns, the rest of the Role Profile applied to the Project Support Officer role she was performing in Rockhampton: T 1-37, ll 45-47. Ms Bushell's evidence was that the Role Profile for Project Support Officers in the Youth Employment Program were generic: T 3-6, ll 4-5.

[11] T 1-41, ll 24-26.

[12] T 1-41, ll 9-10.

[13] T 1-41, ll 24-26.

[14] T 1-41, ll 28-30.

[15] Exhibit 17, pages 146 to 150 of the HB.

[16] Exhibit 17, pages 146 to 150 of the HB.

[17] T 1-44, ll 37-40.

[18] Exhibit 21, page 232 of the HB.

[19] Exhibit 21, pages 231 to 232 of the HB.

[20] T 1-28, ll 24-27.

[21] T 1-42, ll 16-18.

[22] T 1-43, ll 5-18

[23] T 1-43, l 41 to T 1-44, l 10.

[24] T 1-42, l 20 to T 1-43, l -21.

[25] T 1-20, l 42 to T 1-21, l 8.

[26] Ms Perkins' statement of facts and contentions filed on 15 June 2023, para. 4 iv.

[27] T 3-6, ll 13-21.

[28] T 3-6, ll 46-47.

[29] T 3-4, ll 40-46 and Exhibit 22, page 233 of the HB.

[30] T 3-5, l 25 to T 3-6, l 22.

[31] T 3-6, l 40 to 3-7, l 24 and Exhibit 22, pages 233 to 243 of the HB.

[32] T 3-9, ll 8 to 44.

[33] T 3-6, ll 23-32 and T 3-10, l 29 to T 3-14, l 6 and Exhibit 3.

[34] T 3-14, l 8 to 3-16, l 12 and Exhibit 24A.

[35] The written submissions of the State of Queensland, through the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts, filed on 9 September 2024 ('the Department's submissions'), paras. 17-18.

[36] Exhibit 3, page 257 of the HB.

[37] T 3-10, ll 9-23.

[38] See generally T 3-26, l 26 to 3-29, l 18.

[39] T 3-28, ll 34-38.

[40] T 3-29, ll 6-10.

[41] Exhibit 3, page 257 of the HB.

[42] Exhibit 2, page 143 of the HB.

[43] T 3-14, l 8 to T 3-15, l 8.

[44] T 3-15, l 1 to 3-16, l 12 and Exhibit 24A.

[45] Exhibit 18, page 151 of the HB.

[46] The Department' submissions, para. 17.

[47] T 1-67, l 9 to T 1-70, l 15.

[48] The Department's submissions, para. 25.

[49] Exhibit 18, page 151 of the HB.

[50] T 2-51, ll 31-36.

[51] Exhibit 4,  pages 178 to 179 of the HB.

[52] Exhibit 1, pages 199 to 201 of the HB.

[53] Exhibit 1, page 201 of the HB.

[54] Exhibit 5, pages 202 to 204 of the HB.

[55] Exhibit 5, page 202 of the HB.

[56] Exhibit 5, page 203 of the HB.

[57] Exhibit 6, page 330 of the HB.

[58] Exhibit 6, page 329 of the HB.

[59] Exhibit 6, pages 325 to 331 of the HB.

[60] Exhibit 6, pages 328 to 329 of the HB.

[61] Exhibit 6, page 328 of the HB.

[62] Exhibit 6, page 327 of the HB.

[63] Exhibit 6, page 326 of the HB.

[64] Exhibit 6, page 325 of the HB.

[65] Exhibit 7, page 295 of the HB.

[66] Exhibit 8, page 205 of the HB.

[67] Exhibit 11, page 207 of the HB.

[68] Exhibit 9, page 208 of the HB.

[69] Exhibit 15, page 221 of the HB.

[70] Exhibit 15, page 223 of the HB.

[71] Exhibit 10, page 213 of the HB.

[72] Exhibit 13, page 215 of the HB.

[73] Exhibit 13, pages 215 and 216 of the HB.

[74] Exhibit 14, page 217 of the HB.

[75] Exhibit 15, page 218 of the HB.

[76] Exhibit 16, pages 226 to 227 of the HB.

[77] T 2-60, ll 9-14.

[78] T 2-63, ll 1-7.

[79] T 1-70 to T 2-23.

[80] Exhibit 15, page 223 of the HB.

[81] T 1-73, l 38 to 1-74, l 19.

[82] T 1-74, ll 39-40.

[83] Exhibit 15, page 223 of the HB.

[84] Clearly, this should be 22 March 2022.

[85] T 2-5, l 6 to T 2-6, l 33.

[86] T 2-10, ll 1 to 14.

[87] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[88] Ibid.

[89] Gold Coast District Health Service v Walker [2001] ICQ 62; (2001) 168 QGIG 258, 259 (President Hall).

[90] The Department's contentions, paras. 34 to 48.

[91] The Department's contentions, para. 49.

[92] Exhibit 16, pages 226 to 228 of the HB.

[93] Exhibit 4, pages 178 to 179 of the HB.

[94] Exhibit 10, pages 213 to 214 of the HB.

[95] Exhibit 14, pages 217 of the HB.

[96] Exhibit 13, pages 215 to 216 of the HB.

[97] Exhibit 15, page 218 of the HB.

[98] T 2-61, l 27 to T 2-62, l 17 and Exhibit 19, page 225 of the HB.

Close

Editorial Notes

  • Published Case Name:

    Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) (No. 2)

  • Shortened Case Name:

    Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) (No. 2)

  • MNC:

    [2025] QIRC 36

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    07 Feb 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
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Gold Coast District Health Service v Walker [2001] ICQ 62
2 citations
Jump To
Cite 1 - [2001] ICQ 62
Cite 2 - [2001] ICQ 62
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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