Queensland Government Bulletin: QIRC allows fair treatment appeal against employee’s suspension with pay

In the recent decision of Tollesson v State of Queensland (Queensland Health) [2024] QIRC 69 (Tollesson), Industrial Commissioner Dwyer (Dwyer IC) of the Queensland Industrial Relations Commission (QIRC) found that a decision to suspend a public sector employee with pay may be appealed under section 131(1) of the Public Sector Act 2022 (Qld) (PS Act) because it is a ‘fair treatment decision’.

Background

Dr Tollesson, employed as a Visiting Medical Officer and Neurosurgeon, performed a complex procedure on a patient who experienced a post-operative complication. A review of the clinical incident allegedly raised ‘serious concerns’ about his surgical decision making, resulting him in being suspended from duty with full remuneration pursuant to section 101(1)(a) of the PS Act. Dr Tolleson appealed this suspension decision.

What is the relevant law?

Before exercising the discretion to suspend an employee under section 101(1)a) of the PS Act, the chief executive of a public sector entity must ‘reasonably believe’ that the employee is ‘liable to discipline’.

Section 131(1) of the PS Act lists the decisions which can be the subject of a public sector appeal, which include a ‘suspension without pay decision’ and a ‘fair treatment decision’. The list does not expressly include a decision to suspend with pay nor are decisions to suspend without pay expressly excluded.

Did QIRC have jurisdiction?

Queensland Health raised a jurisdictional objection to Dr Tolleson’s appeal, arguing that a decision to suspend with pay cannot be appealed because it is not listed in section 131(1) of the PS Act and as such, the legislature intended to exclude these decisions from appeal.

In rejecting the jurisdictional argument, Dwyer IC noted that the formation of a ‘reasonable belief’ will depend on the facts in each particular matter. An employee who disputes the facts may believe the suspension decision to be unfair and unreasonable, which brings it within the meaning of a ‘fair treatment decision’ as defined in section 129 of the PS Act.

Was the decision fair and reasonable?

The decision to suspend Dr Tolleson referred only to ‘the information I have’ and that it raised ‘serious concerns’. The decision did not specify what information the decision-maker had been briefed with or the nature of the concerns held. Although procedural fairness is not required for a decision to suspend with pay, Dwyer IC held that a suspension decision should adequately record the facts on which the reasonable belief is formed. In this instance, it was found that there was insufficient factual information to demonstrate the basis on which the decision-maker formed a reasonable belief that Dr Tollesson is subject to disciplinary action.

On this basis, the decision was found to be unfair and unreasonable, and was returned for reconsideration.

Takeaways

It is now clear that paid suspensions can be subject to appeal as a ‘fair treatment decision’.

Public sector employers should ensure that a decision to suspend an employee with pay under section 101(a) of the PS Act provides sufficient factual information to demonstrate the basis on which the decision maker has formed the reasonable belief that the employee is liable to discipline.

A simple reference to ‘information’ which raises ‘serious concern’ will not be sufficient.

How can we help?

Our team can assist you in understanding your legal obligations when it comes to employment decisions and can provide training for your team to equip them with the knowledge and skill to support sound decision making in your agency.

Authors: Jackie Hamilton, Lara Hues & Catherine Hartridge

Media

Strong action on crime showing results in 2024
Queensland has recorded a slight decrease in the overall rate of reported crime in the latest data released by the Queensland Police Service (QPS) today. There has been a one per cent drop in the overall reported crime rate this current financial year (FYTD) compared with the same period last year.The reduction is attributed to collaboration across agencies on prevention, intervention and detention initiatives, as well as high visibility policing patrols and the targeted flying squad (22 April 2024). Read more here.

Latest action plan key to efforts to end sexual violence in Queensland
The Miles Government has launched its second action plan outlining initiatives designed to prevent and respond to sexual violence in the community. The document builds upon the work of Prevent. Support. Believe. Queensland’s Framework to address Sexual Violence and its first action plan. The Sexual Violence Prevention Action Plan runs from 2023-24 to 2027-28 and places victim-survivors at its centre. It captures the extensive work underway across government to prevent and respond to sexual violence, including in response to the second report of the Women’s Safety and Justice Taskforce (19 April 2024). Read more here.

The regulatory framework for offshore wind projects in Australian waters
While Australia’s onshore wind industry is relatively mature, contributing 34.6% of renewable electricity generation and 10.7% of total electricity generation in 2021–22, Australia is yet to capitalise on its ‘very high quality and abundant offshore wind resources’. In contrast, the offshore renewable industry is well established in major economies such as Europe, the United States and China, and is growing around the world. Total global offshore wind capacity was 64.3 gigawatts in 2022 and is expected to reach 447 gigawatts by the end of 2032 (3 April 2024). Read more here.

Outcomes of the 2024 ASEAN-Australia Special Summit
Leaders from the Association of Southeast Asian Nations (ASEAN), Australia and Timor-Leste gathered in Melbourne from 4 to 6 March 2024 for the ASEAN-Australia Special Summit, marking the 50th Anniversary of ASEAN-Australia Dialogue Relations. This assembly marked a significant juncture, reflecting on the past 5 decades of cooperation and charting a course for future collaboration under the Comprehensive Strategic Partnership (CSP) initiated in 2021 (2 April 2024). Read more here.

Anti-Discrimination Bill 2024 Consultation
The Queensland Government sought community feedback on the new Anti-Discrimination Bill 2024 that will replace the Act. The proposed new anti-discrimination law would fundamentally alter the operation of Queensland’s discrimination legislation with a view to ensuring it is a modern and effective instrument that appropriately protects people from discrimination, sexual harassment, vilification and other objectionable/unlawful conduct (22 March 2024). Read more here.

Publications

Managing Queensland’s debt and investments 2023
This report examines how the Queensland Government manages its debt and investments, including the associated risks. It also reports on recent transactions related to debt and investments. Read more here.

Unemployment rate rises to 3.8 per cent in March
The seasonally adjusted unemployment rate rose by 0.1 percentage point to 3.8 per cent in March, according to data released today by the Australian Bureau of Statistics. Bjorn Jarvis, ABS head of labour statistics said: “With employment falling by around 7,000 people and the number of unemployed rising by 21,000 people, the unemployment rate rose to 3.8 per cent.” Details here.

State entities 2023
This report summarises the audit results of Queensland state government entities, analyses financial performance, highlights main transactions, and assesses internal controls. Read more here.

The 2024 ASEAN-Australia Special Summit
This Research Paper provides an overview of the evolving context around ASEAN-Australia relations leading up to the 2024 Special Summit, setting the stage for the summit’s agenda. Read the report here.

Practice

Industrial Court of Queensland Practice Direction Number 1 of 2024
This Practice Direction applies to the citation of case law, whether in written or oral submissions, by parties appearing in any matter before the Court or Commission; commenced 18 January 2024. Read more here.

Supreme Court of Queensland Practice Direction Number 12 of 2024
This Practice Direction is issued under s 13 of the Jury Act 1995 (Qld) and relates to excusal from jury service on the basis of ‘genuine religious belief’ or if jury service would result in ‘substantial financial hardship to the business that employs the person’; commenced 11 March 2024. Read more here.

Supreme Court of Queensland Practice Direction Number 13 of 2024
This Practice Direction applies to barristers who accept instructions directly from a person, rather than a solicitor (a ‘direct access brief’), requiring them to prepare a document for the direct access brief and file within the Court Registry; commenced 10 April 2024. Read more here.

Supreme Court of Queensland Practice Direction Number 14 of 2024
This Practice Direction aims to enhance the quality and reliability of evidence relied upon in a criminal proceeding by way of utilizing pre-trial and trial processes at the earliest practicable opportunity; commenced 15 April 2024. Read more here.

Cases

Medical Board of Australia v Pawape (No. 2) [2024] QCAT 141
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the respondent had conditions imposed on his registration – where the respondent breached those conditions – where breach of conditions was found to be professional misconduct – respondent reprimanded

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10
Statutes – Construction – Procedural fairness – Reasonable opportunity to respond – Where Independent Broad-based Anti-corruption Commission ("IBAC") conducted investigation into allegations of unauthorised access to and disclosure of internal email accounts – Where IBAC provided redacted draft special report containing proposed adverse findings against appellants – Where IBAC refused to provide evidentiary material for proposed adverse findings

Millar v Brisbane City Council [2024] QCAT 93
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dogs – where unprovoked attack causing physical injury and fear – where two dogs were attacked on separate occasions at a local dog park – where allegations of provocation by victim dogs on both occasions – where provocation confined to growling and baring of teeth – where respondent satisfied that the attack was unprovoked – where attacks on two separate occasions in close proximity to each other – whether the applicant’s dog was subject to provocation in each attack by the victim dogs – whether applicant’s dog was defending itself – whether attack caused bodily harm – whether serious attack by applicant’s dog – whether a dangerous dog declaration should be made on review

Jonathon Samuel Leitch v Christian Outreach Centre & Brian Francis Mulheran [2024] QCAT 90
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – where the respondent filed an application to summarily dismiss/strike out – where respondent is a school run by a religious organisation – where applicant alleges religious, sexuality and association discrimination – whether the proceedings are vexatious, frivolous or misconceived, lacking in substance or an abuse of process
Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor [2024] QSC 6
ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – GENERALLY – where the Chief Health Officer issued a series of directions regarding vaccination against COVID-19 – where the directions have since been revoked – where the respondents in each proceeding bring an application claiming the applicants no longer have standing – whether the applicants in each proceeding have standing to seek a review of the decisions

Legislation

Bills introduced

Government

Brisbane Olympic and Paralympic Games Arrangements Amendment Bill 2024
Mineral and Energy Resources and Other Legislation Amendment Bill 2024
Resources Safety and Health Legislation Amendment Bill 2024
State Financial Institutions and Metway Merger Amendment Bill 2024
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2024

Bills passed without amendment
Building Industry Fairness (Security of Payment) and Other Legislation Amendment Bill 2024
Land and Other Legislation Amendment Bill 2024

Bills amended during passage
Agriculture and Fisheries and Other Legislation Amendment Bill 2023
Clean Economy Jobs Bill 2024
Energy (Renewable Transformation and Jobs) Bill 2023
Housing Availability and Affordability (Planning and Other Legislation Amendment) Bill 2024

Proclamations commencing Acts made

Proclamation – Gas Supply and Other Legislation (Hydrogen Industry Development) Amendment Act 2023 (commencing remaining provisions)

Subordinate legislation notified

Subordinate legislation tabled

Disclaimer
The information in this bulletin is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this bulletin is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Catherine Hartridge