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Colebrook v State of Queensland (Queensland Health)[2025] QIRC 53

Colebrook v State of Queensland (Queensland Health)[2025] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Colebrook v State of Queensland (Queensland Health) [2025] QIRC 053

PARTIES:

Colebrook, Luke

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2025/5

PROCEEDING:

Public Sector Appeal – Suspension with pay

DELIVERED ON:

18 February 2025

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) -

  1. 1. The decision of 23 December 2024 is set aside, and another decision is substituted;
  2. 2. The Appellant is returned to suspension on normal remuneration effective from 23 December 2024;
  3. 3. The Respondent is to reimburse the Appellant for the normal remuneration he has not received from 23 December 2024.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against suspension without remuneration decision – whether decision to suspend  without remuneration was fair and reasonable – where public interest of suspension without remuneration considered –  where financial impact on employee considered – decision not fair and reasonable.

LEGISLATION:

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

Public Sector Act 2022 (Qld), s 101, s 102, s 131

Suspension (Directive 06/23), cl 4, cl 7, cl 8, cl 9, cl 11

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Goodall v State of Queensland [2018] QSC 319

Philp v State of Queensland (Department of Education) [2023] QIRC 219

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

Reasons for Decision

Introduction

  1. [1]
    Mr Luke Colebrook ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Health Security Officer, OO3 in the Facilities and Integrated Support Services Unit of the Townsville University Hospital.
  1. [2]
    On 26 November 2024, the Appellant was suspended from duty on normal remuneration pursuant to s 101(1)(a) of the Public Sector Act 2022 (Qld) ('the PS Act') ('the suspension decision'). The Appellant was also provided with a Show Cause Notice for suspension without remuneration.
  1. [3]
    The Show Cause Notice invited the Appellant to respond to the following:

The allegation/s relate to your conduct and the performance of your duties in the workplace on 20 November 2024 during the restraint of a patient and that you have allegedly used unreasonable and disproportionate force and prohibited physical restraint technique/s.

  1. [4]
    On 3 December 2024, the Appellant lodged a response to the Show Cause Notice with the assistance of his union.
  1. [5]
    By letter dated 23 December 2024 ('the decision'), the Appellant received correspondence from Ms Shellee Chapman, Executive Director, People, Strategy and Governance, Townsville Hospital and Health Service, ('the decision maker') advising of her decision to suspend the Appellant without normal remuneration ('the decision').
  1. [6]
    An Appeal Notice was filed on 10 January 2025 pursuant to s 131(1)(f) of the PS Act.
  1. [7]
    The issue for determination is whether the decision was fair and reasonable.

Appeal principles

  1. [8]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [9]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [10]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant legislative provision and Directive

  1. [11]
    Section 101 of the PS Act provides for the suspension of a public sector employee:
  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
  2. (b)
    the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
  1. (3)
    However, before suspending the employee, the chief executive must consider all reasonable alternatives to the employee.

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

  • alternative duties
  • a change in the location where the employee performs duties
  • another alternative working arrangement
  1. (4)
    The employee is entitled to normal remuneration for the period of the suspension, unless—
  1. (a)
    the employee is suspended under subsection (1)(a); and
  2. (b)
    the employee's chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.

…

  1. (8)
    The chief executive may cancel the suspension at any time.
  2. (9)
    In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
  3. (10)
    Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
  1. [12]
    Clause 8 of the Suspension (Directive 06/23)('the Directive') relevantly outlines the factors that must be taken into consideration in considering suspending a public sector employee without remuneration:
  1. 8.Suspension without remuneration
  1. 8.1A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
  2. 8.2 Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where: 
  1. (a)
    there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
  2. (b)
    it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.
  1. 9.Procedural fairness
  1. 9.1Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness.
  2. 9.2As part of the suspension without remuneration process:
  1. (a)
    the employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This must occur through a 'show cause' process where the employee is notified in writing the reasons that it is proposed that the employee be suspended without remuneration
  2. (b)
    the show cause notice may be given at the time of the initial suspension on normal remuneration, or at any subsequent stage during the suspension
  3. (c)
    the chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice. The time to respond must have regard to the volume of material and complexity of the matter. The chief executive must consider any request, and may grant, an extension of time to respond to a show cause notice if there are reasonable grounds for extension
  4. (d)
    if the employee does not respond to the show cause notice or does not respond within the nominated timeframe in clause 9.2(c) and has not been granted an extension of time to respond, the chief executive may make a decision on suspension without normal remuneration based on the information available to them
  5. (e)
    where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision. The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.

Grounds of Appeal

  1. [13]
    In the appeal notice, the Appellant outlined the following reasons for the appeal:

…

  1. 3.The decision-maker has made a determination that [the Appellant] "is liable" for discipline, despite the fact that to date, no investigation has occurred, no disciplinary process has commenced and therefore no disciplinary finding has been made.
  2. 4.The suspension without pay decision does not comply with the requirements of s. 101 of the Public Sector Act 2022 (Qld) …
  3. 5.The decision-maker failed to comply with the requirements of the Public Sector Commission Suspension Directive 06/23 ("the Directive") …
  4. 6.The suspension without pay decision fails to inform the Appellant of his rights to periodic reviews of his suspension pursuant to section 11.1 of the Directive.

…

Submissions

Appellant's submissions

  1. [14]
    The Appellant's Appeal Notice contained submissions which are summarised as follows:
  1. a)
    The Appellant argues that the decision is unfair and unreasonable because the decision maker has determined that the Appellant 'is liable' for discipline despite there being no investigation, no disciplinary process, and no disciplinary finding.
  2. b)
    The Appellant argues that the decision did not comply with s 101 of the PS Act in that it did not state what effect alternative employment may have on any entitlement to remuneration for the suspension period, it did not contain details of how the chief executive had considered all reasonable alternatives available to the employee, and the decision maker failed to comply with a directive made under s 102 of the PS Act.
  3. c)
    The Appellant further argues that the decision maker failed to comply with the Directive due to:
  1. i)
    the decision being punitive;
  2. ii)
    the decision not containing the details of what duties or other options for the employee were identified and considered by the decision maker in compliance with cl 7.3 of the Directive;
  3. iii)
    the decision not meeting the suspension without remuneration criteria in cl 8.2 of the Directive;
  4. iv)
    the decision maker stating that she did not consider that there were any factors not within the control of the Respondent which would prevent the timely conclusion of the discipline process if one were to commence, which was not a relevant factor;
  5. v)
    the decision maker giving too much weight to the obligation to manage public resources efficiently and insufficient weight to the financial and psychological impact of the decision on the Appellant and his family;
  6. vi)
    the decision maker failing to explain why the public interest of the Appellant remaining on suspension with remuneration should be elevated above the obligation to treat the Appellant fairly and reasonably. The decision maker cannot decide on this without an actual allegation being made;
  7. vii)
    the Show Cause Notice not complying with cl 9.2(a) of the Directive by failing to include specific allegations against the Appellant; and
  8. viii)
    the decision containing reasons that were not put to the Appellant in the Show Cause Notice.
  1. d)
    The Appellant also argues that the decision fails to inform the Appellant of his rights to periodic reviews of his suspension pursuant to cl 11.1 of the Directive.

Respondent's submissions

  1. [15]
    The Respondent provided the following submissions, in summary:
  1. a)
    The Respondent contests the Appellant's assertion that the decision maker had decided that the Appellant 'is liable' for discipline on the basis that the decision letter states that "…I reasonably believe you are liable to discipline under a disciplinary law." The Respondent argues that the words 'liable to discipline' pursuant to s 101(1)(a) do not mean that the decision maker has found the Appellant has engaged in the alleged conduct, but rather that the Appellant is subject to the probability of discipline.
  2. b)
    The Respondent acknowledges that the decision does not expressly state what 'information' is before the decision maker but argues that she formed a reasonable belief that the alleged conduct is of a 'serious nature' by particularising the alleged conduct as "The allegation/s relate to your conduct and the performance of your duties in the workplace on 20 November 2024 during the restraint of a patient and that you have allegedly used unreasonable and disproportionate force and prohibited physical restraint technique/s." The Respondent argues that the decision letter states that the allegations are of a 'serious nature' of which a referral to the Crime Corruption Commission ('CCC') has been made.
  3. c)
    The Respondent concedes that the decision maker, on the evidence before her, could have better particularised the allegations by reference to the evidence collected and processes undertaken at the time but rejects the Appellant's assertion that the decision letter fails to particularise the allegations. The Respondent submits that the decision maker had sufficient evidence before them at the time to issue the decision letter.
  4. d)
    The Respondent refers to cl 4.7 of the Directive in support of the argument that suspension actions are considered administrative in nature and are not akin to any disciplinary action. The Respondent argues that the Appellant's submissions that the Respondent's actions are punitive and expressly forbidden are incorrect.
  5. e)
    The Respondent rejects the Appellant's submission that the decision maker failed to comply with the PS Act and the Directive by failing to consider alternative duties and argues that consideration was given to alternative duties as described in the decision letter. The Respondent further submits that the decision maker did not need to re‑consider the consideration of alternative duties due to the original suspension notice being for the period of 26 November 2024 to 28 February 2025. The Respondent argues that there is no further positive obligation imposed by the PS Act or the Directive to support the Appellant's assertion that the decision maker was required to re-consider the consideration of alternative duties.
  6. f)
    The Respondent submits that the decision complies with the legislative requirements of s 101(4) of the PS Act, and cl 8.2 and 9 of the Directive.
  7. g)
    The Respondent submits that the Appellant was subject to a suspension pursuant to s 101(a) of the PS Act from 26 November 2024, prior to the issuing of the decision, for a period of approximately four weeks which the Appellant receiving normal remuneration for.
  8. h)
    The Respondent further argues that the Appellant's argument that the decision failed to afford 'natural justice' is incorrect.
  9. i)
    The Respondent concedes that the decision needed to comply with the Directive under s 102 of the PS Act but submits that cl 11 of the Directive states that period reviews apply "to matters involving a public sector employee's work performance or personal conduct, other than corrupt conduct matters" and that the decision correctly removed any reference to a periodic review of the suspension decision in accordance with the Directive.
  10. j)
    The Respondent submits that the decision was fair and reasonable within the definition outlined in s 562B(3) of the IR Act as the Respondent complied with their obligations pursuant to the PS Act and the Directive prior to issuing the suspension decision and the decision to the Appellant.

Appellant's submissions in reply

  1. [16]
    The Appellant provided the following submissions in summary: 
  1. a)
    The Appellant argues that the portion of the decision with which issue was raised was where the decision maker stated "accordingly, pursuant to section 101(4) of the PS Act, I have determined that it is not appropriate for you to be paid normal remuneration during your suspension, having regard to the nature of the discipline to which you are liable." The Appellant submits that this constitutes a determination that the Appellant 'is' liable for discipline despite there having been no investigation, no disciplinary process, and no disciplinary finding.
  2. b)
    The Appellant argues that it is incorrect that the Appellant 'is' liable for discipline and that assertion is premature, indicates a bias against the Appellant, and goes beyond the language used within the PS Act.
  3. c)
    The Appellant further argues that the Respondent admitting in their submissions that the evidence could have been better particularised by reference to the evidence that has been collected and the processes undertaken shows that the failure to put the information before the Appellant prevented him from being able to provide a considered and meaningful response to the Show Cause Notice in accordance with his right to procedural fairness under cl 9 of the Directive. The Appellant argues that this renders the decision unfair and unreasonable.
  4. d)
    The Appellant disputes the Respondent's assertion that cl 4.7 of the Directive states that any suspension action is considered administrative in nature and is not a disciplinary action and argues that cl 4.7 actually prohibits the suspension of employees for punitive reasons.
  5. e)
    The Appellant further disputes the Respondent's assertion that the disciplinary action process is a "separate and distinct process" to that of suspension and argues that the Respondent has no basis for such a claim.
  6. f)
    The Appellant submits that the circumstances of his suspension are analogous to the case of Philp v State of Queensland (Department of Education).
  7. g)
    The Appellant argues that the Respondent's position that their lawful obligations were discharged by a combination of statements in the Show Cause Notice and the decision is incorrect. The Appellant refers to the matter of Thomson v State of Queensland (Department of Education) in support of this assertion, where Commissioner McLennan found that the suspension without pay decision was unfair and unreasonable due in part to a failing by the decision maker to consider afresh the possibility of alternative working arrangements.
  8. h)
    The Appellant reiterates that the decision does not justify why the public interest of the Appellant remaining on suspension without remuneration has been elevated by the decision maker above the obligation to treat the Appellant fairly and reasonably, and that suspension with remuneration will severely impact the Appellant and his family.
  9. i)
    The Appellant reiterates that the decision was deficient for the following reasons:
  1. i)
    it did not contain the particulars of the information before the decision maker demonstrating that the 'reasonable belief had been attained as to the Appellant's possible liability for discipline;
  2. ii)
    it did not contain the details of all reasonable alternatives considered by the decision maker as required by s 101(3) of the PS Act; and
  3. iii)
    it did not contain the particulars of the reasons the decision maker was considering suspension without pay, in contravention of cl 9.2 of the Directive requiring procedural fairness in the form of providing the employee with the opportunity to respond to the proposed decision through a show cause process where the employee is notified in writing of the reasons why it is proposed he be suspended without remuneration.
  1. j)
    The Appellant argues that these deficiencies render the decision unfair and unreasonable.

Consideration

  1. [17]
    The decision under appeal is that dated 23 December 2024 in which the decision maker determined that the Appellant was to be suspended without normal remuneration in accordance with s 101(4)(b) of the PS Act.

Alternative working arrangements

  1. [18]
    Section 101(3) of the PS Act requires the chief executive to consider all reasonable alternatives before suspending an employee. As outlined in Philp v State of Queensland (Department of Education) ('Philp'),[5] this obligation arises at each decision to further suspend an employee.
  1. [19]
    In the suspension decision, the decision maker outlined his consideration of alternative duties in accordance with s 101(3)  -

In my view, having regard to the nature of the allegation/s against you, there is an unacceptable health and safety risk to staff, patients and yourself, if you were to remain in your current role whilst these allegation/s remain unresolved. I reasonably believe due to the significant nature of the allegation/s that the proper and efficient management of HSD might be prejudiced if you were to remain in your role in the workplace at this time and that it would not be reasonable and practicable for your work conduct and performance to be continuously scrutinised whist the allegation/s are outstanding.

I have considered whether there are any reasonable alternatives to suspending you from duty, including alternative duties, a temporary transfer (either in your current workplace or another workplace) or another alternative working arrangement, such as directing you to work under close supervision or with another employee, or asking you if you wish to access accrued recreation and/or long service leave. In considering this, I have undertaken an assessment of the allegation/s and whether your continuation in the role or another role presents any potential risk to the Townsville HHS or others.

  1. [20]
    The Appellant submits that the decision maker erred in that he did not outline consideration of s 101(3) of the PS Act in the decision to suspend without remuneration. The Appellant refers to Thomson v State of Queensland (Department of Education) ('Thomson')[6] in which the Commission found that the decision was not fair and reasonable in part because the decision maker did not consider afresh the possibility of alternative working arrangements.
  1. [21]
    The decision in Thomson referred to the requirement for the employer to consider alternative working arrangements at each periodic review before a decision is made to suspend an employee for a further period. In the present matter, the decision to suspend the Appellant has already been made for the period from 26 November 2024 to 28 February 2025. The decision to change the suspension from allowing for remuneration to removing remuneration does not require a further assessment of alternative working arrangements. If the decision was made to extend the Appellant's suspension beyond 28 February 2025, consideration would have to have again been given to alternative working arrangements.

Periodic Review

  1. [22]
    The Appellant contends that the decision fails to comply with cl 11.1 of the Directive in that it does not state the decision was subject to a periodic review.
  1. [23]
    Clause 11.1 of the Directive outlines that a periodic review applies to matters involving a public sector employee's work performance or personal conduct, other than corrupt conduct matters. In the suspension decision, the Respondent stated that the matter would be referred to the Crime and Corruption Commission ('CCC') for determination as to whether the conduct amounts to suspected corrupt conduct.
  1. [24]
    In circumstances where the Directive excludes periodic reviews for matters involving corrupt conduct, the decision maker was not required to advise the Appellant that the decision was subject to periodic review.

Section 101(4) - Suspension without remuneration

  1. [25]
    An employee is entitled to normal remuneration for the period of the suspension unless the suspension meets the two-limb test outlined in s 101(4) of the PS Act.
  1. [26]
    The first limb, contained in s 101(4)(a), is that the employee must be suspended because the decision maker reasonably believes that the employee is liable to discipline under a disciplinary law.
  1. [27]
    The second limb, contained in s 101(4)(b), is that the decision maker must consider it 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.

The first limb – s 101(4)(a)

  1. [28]
    The suspension decision was communicated to the Appellant on 26 November 2024. In that decision, it was determined that the Appellant would be suspended from 26 November 2024 until 28 February 2025.
  1. [29]
    The decision referred to the consideration of s 101(4)(a) in the suspension decision in which the decision maker determined that she reasonably believed that the Appellant was liable to discipline under a disciplinary law in relation to the alleged conduct.
  1. [30]
    In Colebourne v State of Queensland (Queensland Police Service) ('Colebourne'), Deputy President Merrell outlined the following consideration of the term 'reasonable belief'-

When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion or belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[7]

  1. [31]
    The Respondent outlined the following in the decision subject to this appeal –

Having regard to the information currently before me, by letter dated 26 November 2024 I advised you that I reasonably believe you are liable to discipline under a disciplinary law in relation to the alleged conduct.

  1. [32]
    The suspension decision outlined the alleged conduct in the following terms –

The allegation/s relate to your conduct and the performance of your duties in the workplace on 20 November 2024 during the restraint of a patient that you have allegedly used unreasonable and disproportionate force and prohibited physical restraint technique/s.

  1. [33]
    The Respondent submits that the decision maker had before him a workplace review described as a 'physical restraint triage review' that had assessed the CCTV and body worn camera footage of the alleged incident along with medical records of the patient. In these circumstances I am satisfied that a factual basis existed upon which the decision maker formed a reasonable belief that the Appellant was liable to discipline under a disciplinary law.

The second limb – s 101(4)(b)

  1. [34]
    Section 101(4)(b) provides that an employee is entitled to normal remuneration for the period of the suspension, unless 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. [35]
    The Appellant submits that the decision maker's statement that she had determined that it was not appropriate for the Appellant to be paid normal remuneration during the suspension "having regard to the nature of the discipline to which [the Appellant is] liable" demonstrates an error on the basis that no investigation has occurred, no disciplinary process has commenced, and no disciplinary finding has been made.
  1. [36]
    Neither the PS Act nor the Directive require that an investigation or disciplinary process be undertaken prior to suspension, nor do they require that a disciplinary finding be made before a decision to suspend an employee without remuneration can be made. Section 101(4)(a) only requires consideration of the nature of the discipline to which the Appellant is liable.
  1. [37]
    The decision maker demonstrated consideration of the nature of the discipline to which he believes the Appellant is liable, stating –

Having regard to the nature of the discipline matter, the alleged conduct, if proven, is conduct that could only be categorised as being of the utmost serious nature.

  1. [38]
    The decision maker determined that it would not be appropriate for the Appellant to be paid normal remuneration, having regard to the nature of the discipline to which the Appellant is liable, which if proven is of the 'utmost serious nature'.
  1. [39]
    I am satisfied that the decision maker had appropriate regard to the nature of the discipline in accordance with s 101(4)(b).

Suspension Directive

  1. [40]
    Clause 4.7 of the Directive is outlined as follows -

Suspension is an administrative action, taken for administrative necessity. It is not disciplinary action and is not to be used as a form of punishment.

  1. [41]
    Although the decision maker has decided that the Appellant is liable to discipline, disciplinary action may only be taken after the Appellant is provided with an opportunity to respond to allegations and a disciplinary finding is made, if evidence supports such a finding.
  1. [42]
    The Appellant submits that the decision can be considered disciplinary action. There is insufficient evidence to determine that the decision was taken as a form of disciplinary action or as a form of punishment. The decision maker specifically outlined the following –

To be clear, I confirm that no adverse finding or determination has been made against you at this time, nor will be made until such time as you have been given the opportunity to formally respond to any allegation that is put to you, affording you procedural fairness.

  1. [43]
    There is no evidence that the decision maker has pre-emptively determined a disciplinary outcome or suspended the Appellant in a punitive manner. The PS Act and the Directive allow for suspension without remuneration in particular circumstances after consideration of mandatory factors and such action is not inherently punitive.
  1. [44]
    Clause 9.1 of the Directive provides that unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness. The decision maker issued a show cause notice and provided an opportunity for the Appellant to respond prior to a decision being made in compliance with cl 9.2(a).
  1. [45]
    Clause 9.2(e) of the Directive is outlined as follows –
  1. (e)
    where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision. The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.
  1. [46]
    Section 101(2) of the PS Act is outlined as follows-
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the employee is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
  1. [47]
    The decision outlined the time limits for starting an appeal in accordance with cl 9.2(e).
  1. [48]
    Whilst the suspension decision included the relevant details in accordance with s 101(2), the decision to suspend the Appellant without normal remuneration did not include these details.
  1. [49]
    The words in s 101(2) provide for mandatory inclusions in the notice, specifically, that the notice 'must' state when the suspension starts and ends, whether the employee is entitled to remuneration for the period of the suspension, and the effect of alternative employment on any entitlement to remuneration for the period of suspension.
  1. [50]
    In accordance with s 101(2)(a) of the PS Act, the decision states that suspension without remuneration will take effect as at the date of the letter. However, the decision does not state when the suspension without remuneration ends in accordance with s 101(2)(a), nor the effect that alternative employment may have on any entitlement to remuneration for the period of the suspension, as required by s 101(2)(c).
  1. [51]
    The information contained in the suspension decision and the decision under appeal cannot be combined in order to satisfy cl 9.2(e). Notwithstanding the Respondent's inclusion of information regarding the suspension dates and effect of alternative employment in the suspension decision, cl 9.2(e) of the Directive clearly states that where a decision is made to suspend an employee without normal remuneration, which is a separate decision to the suspension decision, a written notice must be provided 'including the particulars required by s 101(2) of the Act'. The failure of the decision maker to include this information renders the decision procedurally deficient.
  1. [52]
    Clause 8.2 of the Directive provides that the decision maker may decide an employee is not entitled to normal remuneration for the period of the suspension in the following circumstances –
  • There are factors not within the control of the agency that are preventing the timely conclusion of the discipline process; or
  • 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. [53]
    The decision maker outlined in the decision that he "[did] not consider that there are any factors not within the control of the Townsville HHS that will prevent the timely conclusion of any discipline process, should one commence."
  1. [54]
    The decision maker relied upon cl 8.2(b) to determine the following –

Having regard to the nature of the allegations in relation to your alleged conduct on 20 November 2024, in my view the reputation of the Townsville HHS might also be seriously and adversely affected if you were to remain suspended on full remuneration, whilst the allegations remain unresolved. There is a public interest in maintaining public confidence in the Townsville HHS and the public sector, taking into account the perception of the public regarding the continuation of remuneration during the period of suspension and the very serious nature of the allegations against you.

I have given serious consideration to your submissions that you will suffer significant financial hardship were you to be suspended without remuneration as you are the sole financial provider for your family, including your 10-month-old child. The PS Act and Suspension Directive expressly contemplate that a suspension may be without normal remuneration in certain circumstances; and in my view, it is circumstances such as those which currently exist, namely the nature and significance of the allegations against you and the responsibility to maintain the confidence of the public that outweigh the factors advised by you to remain on suspension with remuneration.

  1. [55]
    The Appellant submits that insufficient weight was given to the financial and psychosocial impact of the decision on the Appellant. The Appellant contends that suspension without remuneration would cause significant financial hardship to his family who rely exclusively on his income for essential needs such as food, housing, healthcare, and the education and care of his infant child.
  1. [56]
    The Respondent submits that the decision maker gave serious consideration to the fact that the Appellant would suffer significant financial hardship and offered an avenue of maintaining an income by accessing accrued leave entitlements. The Respondent contends that this was balanced against the broader public interest being the public confidence in Townsville HHS and the public perception of the continuation of remuneration during a period of suspension and the serious nature of the allegations.
  1. [57]
    The decision maker’s reference to allowing the Appellant to access leave entitlements does not, in my view, outweigh the significant financial hardship suffered by the Appellant in losing his remuneration during the period of suspension. The consequences of being on suspension without an income as the sole earner for his family are considerable. Accordingly, I am not persuaded that the Respondent gave appropriate weight to the significant financial hardship suffered by the Appellant if suspended without remuneration.
  1. [58]
    The Respondent has made submissions as to CCTV and body-worn camera recordings forming the basis of the decision maker's belief that the Appellant is liable to discipline under a disciplinary law. In circumstances where the Respondent has access to this evidence and complete control over the disciplinary process, there is no apparent reason that this matter cannot proceed to resolution in a timely manner. As confirmed by the Respondent, there are no external factors outside of the HHS that will prevent the timely conclusion of any discipline process, should one commence.
  1. [59]
    Given the Respondent's control over the resolution of the matter arising from the alleged conduct, the impact of the employee remaining on suspension with remuneration can be managed to ensure it does not continue longer than necessary. A timely resolution would address the broader public interest of ensuring that employees do not remain on suspension with remuneration for extended periods of time.
  1. [60]
    The public interest in ensuring the efficient use of public money may also be assisted by the provision of alternative working arrangements. Although I note that the determination in the suspension decision that such arrangements were not 'available or appropriate' in the current circumstances, a fresh assessment of these circumstances at the conclusion of the present period of suspension may identify working arrangements that would maximise the efficient use of public money.
  1. [61]
    In circumstances where the financial impact on the employee will be significant, and the public interest can be addressed via an efficient process to resolve the matter, I am not of the view that it was fair and reasonable to suspend the Appellant without remuneration.

Order

  1. [62]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) -

  1. The decision of 23 December 2024 is set aside, and another decision is substituted;
  2. The Appellant is returned to suspension on normal remuneration effective from 23 December 2024;
  3. The Respondent is to reimburse the Appellant for the normal remuneration he has not received from 23 December 2024.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10, 261.

[3] Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act (n 1) s 562B(3).

[5] [2023] QIRC 219.

[6] [2022] QIRC 402.

[7] [2022] QIRC 018, 28, citing George v Rockett [1990] 170 CLR 104.

Close

Editorial Notes

  • Published Case Name:

    Colebrook v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Colebrook v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 53

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    18 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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
2 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
George v Rockett (1990) 170 CLR 104
1 citation
Jump To
Cite 1 - (1990) 170 CLR 104
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Philp v State of Queensland (Department of Education) [2023] QIRC 219
2 citations
Jump To
Cite 1 - [2023] QIRC 219
Cite 2 - [2023] QIRC 219
Thomson v State of Queensland (Department of Education) [2022] QIRC 402
2 citations
Jump To
Cite 1 - [2022] QIRC 402
Cite 2 - [2022] QIRC 402

Cases Citing

Case NameFull CitationFrequency
Bah v State of Queensland (Queensland Health) [2025] QIRC 963 citations
1

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