Bah v State of Queensland (Queensland Health) [2025] QIRC 96

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bah v State of Queensland (Queensland Health) [2025] QIRC 096 PARTIES: Bah, Ahmadu (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2023/248 PROCEEDING: Public Sector Appeal – Suspension Decision DELIVERED ON: 31 March 2025 MEMBER: McLennan IC HEARD AT: On the papers ORDERS: That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The appeal is allowed. 2. The decision of 24 November 2023 is set aside and another decision is substituted. 3. The Appellant is suspended on normal remuneration for the period 29 November 2023 to 29 February 2024. 4. The Respondent is to reimburse the Appellant for the normal remuneration he had been deprived of from 29 November 2023 to 29 February 2024. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed -- 1 of 24 -- 2 as a registered nurse – appellant charged with offences under the Criminal Code Act 1899 (Qld) – appellant suspended without remuneration – whether suspended the appellant without remuneration was fair and reasonable – decision to suspend without remuneration was not fair and reasonable – appeal is allowed LEGISLATION AND INSTRUMENTS: Criminal Code Act 1899 (Qld) s 352 Industrial Relations Act 2016 (Qld) s 526A, s 562B, s 562C Public Sector Act 2022 (Qld) s 73, s 91, s 101, s 131 Directive 06/23: Suspension cl 7, cl 8, cl 9 CASES: Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564 BR v State of Queensland (No. 2) [2022] QIRC 154 Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018 Colebrook v State of Queensland (Queensland Health) [2025] QIRC 053 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Kioa v West (1985) 159 CLR 550 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Philp v State of Queensland (Department of Education) [2023] QIRC 219 Russell v Duke of Norfolk (1949) 1 All ER 109 Smith v State of Queensland (Department of Education) (No. 2) [2022] QIRC 398 -- 2 of 24 -- 3 State of Queensland (Queensland Health) v Hume [2024] ICQ 3 Thomson v State of Queensland (Department of Education) [2022] QIRC 402 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 Reasons for Decision [1] Mr Ahmadu Bah (the Appellant) was employed as a Registered Nurse (RN) in the Rehabilitation Unit of Logan Hospital, Metro South Hospital and Health Service (MSHHS), Queensland Health (the Respondent). [2] Around 22 November 2022, the Respondent was notified of a complaint alleging that when assisting to shower a patient who had been admitted to hospital after suffering a stroke, the Appellant grabbed the patient's testicles and penis and twisted them in an effort to rouse the patient.1 [3] The Appellant was initially placed into alternative duties in a non-patient facing role when the allegations were raised to the Respondent. [4] In its letter dated 2 December 2022, the Respondent advised the Appellant of its decision to suspend him with pay under s 137(1)(b) of the Public Service Act 2008 (Qld).2 [5] On 2 March 2023, the Office of the Health Ombudsman (OHO) issued a notice of immediate registration action in relation to the Appellant, providing that he could not practice in any role requiring "direct patient contact".3 [6] On 28 August 2023, the Appellant was arrested and charged with sexual assault pursuant to s 352(1)(a) of the Criminal Code Act 1899 (Qld) relating to the Appellant's conduct in the workplace reported to the Respondent on 22 November 2022.4 [7] The Appellant did not notify the Respondent that he had been arrested and charged with an indictable in accordance with s 73 of the Public Sector Act 2022 (Qld) (PS Act).5 1 Respondent's submissions filed 22 January 2024, [8]. 2 Appeal notice filed 19 December 2023, Attachment 1; The Public Service Act 2008 (Qld) has since been repealed and replaced with the Public Sector Act 2022 (Qld). 3 Respondent's submissions filed 22 January 2024, [13]; Respondent's submissions filed 22 January 2024, Attachment 2. 4 Respondent's submissions filed 22 January 2024, [15]. 5 Ibid [16]. -- 3 of 24 -- 4 [8] In its decision letter dated 24 November 2023, the Respondent advised the Appellant it had determined to suspend him without pay pursuant to s 101(4) of the PS Act due to the following reasons (the Decision):6 • Having regard to the factors set out at clause 8.2(a) of the Directive, I note that the criminal charges against you relate to sexual assault under section 352(1)(A) of the Criminal Code Act 1899 (Qld) (the Criminal Code). The nature of the discipline matter therefore is of the utmost serious nature. It is also relevant that the charges against you relate to your conduct while in the workplace, and relate to your conduct towards a patient of MSH. Clause 8.2(b) of the Directive requires that I give consideration to the public interest of an employee remaining on suspension with remuneration. Whilst I have considered your response in which you make submissions regarding the financial and emotional impact that the decision will have on you and your family, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. Financial detriment is an inevitable factor in any circumstance where an employee is suspended without pay, however this is not the primary factor to be considered. I must consider whether the financial detriment to you is outweighed by the gravity of your conduct. Having regard to the seriousness of the criminal charges made against you, I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration for a further period. • In my view, the reputation of the Department may also be seriously and adversely affected if you were to remain suspended on full remuneration, whilst the criminal charges remain outstanding. There is a public interest in maintaining public confidence in the Department 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 criminal charges against you. • I have also considered very seriously your extensive submissions as to financial hardship were you to be suspended without normal remuneration, as well as your lengthy and otherwise unblemished work history. However, I do not consider these factors are sufficient to outweigh the fact that you are subject to serious criminal charges which are alleged to have arisen during the course of your employment and which will not be concluded before the Magistrates Court. The Act and 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 taking into account the financial impact on you and the broader public interest of you remaining on suspension with remuneration). • I have carefully considered your submissions to the effect that a decision without pay would have the 'same practical effect as termination' of your employment and would be 'unduly prejudicial' to you. While I acknowledge that a decision to suspend you without remuneration would have a financial impact on you, I consider that this impact is outweighed by the seriousness and nature of the alleged criminal conduct. • I acknowledge your assertion that you are 'entitled to the presumption of innocence'. I confirm that no decision regarding your guilt in relation to these matters has been made. My decision to suspend you without remuneration in no way presumes your guilt in relation to the criminal matter. I confirm that you are entitled to the presumption of innocence in relation to the criminal matter until a decision has been made in those criminal proceedings. [9] On 19 December 2023, the Appellant filed an appeal of the Decision to suspend him without pay. 6 Appeal Notice filed 19 December 2023, Attachment 8. -- 4 of 24 -- 5 Directions Order [10] In a Directions Order dated 8 January 2024, I directed the parties to file submissions in relation to the Appeal. The parties subsequentially filed their written submissions. [11] On 15 May 2024, the Respondent emailed the Industrial Registry advising the disciplinary process involving the Appellant had been finalised, and the Appellant was terminated from his employment with the Respondent effective 26 April 2024. That fact raised the issue of whether this appeal should still be heard in circumstances where the Appellant is no longer a public sector employee. [12] I subsequently issued a Further Directions Order requiring submissions from the parties regarding why the Commission should not exercise its discretion, pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) (IR Act), not to hear this appeal given that he is no longer a Public Sector employee. [13] Section 562A(3)(b)(iii) of the IR Act provides that the Commission may decide it will not hear a public service appeal against a decision if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal should not be heard for another compelling reason. I will deal with that issue first. Should the appeal be heard? [14] Upon consideration of the parties' written submissions, I have decided to hear this appeal in circumstances where the Appellant is no longer an employee of the Department. My reasons follow. [15] In Smith v State of Queensland (Department of Education) (No. 2),7 Mr Smith filed a Public Service Appeal in relation to a decision not to convert his fixed term temporary employment to permanent. Mr Smith's temporary employment ceased one day after the appeal was filed. In that case, Deputy President Merrell held: [10] The consequence is that s 562C(1)(c) of the IR Act does not confer power on the Commission in an appeal such as this, to, in effect, order the reinstatement or re-employment of a former fixed term temporary employee by substituting a decision that the appellant be employed as a general employee on tenure or as a public service officer. This is the case even if the decision actually made or taken to have been made under s 149B(7) of the PS Act - to continue an appellant's fixed term temporary or casual employment according to the terms of their existing employment (before their employment came to an end) - was not fair and reasonable. [11] Mr Smith is not employed in the Department in the role in which he was formerly employed. There is no evidence or suggestion, from either party, that Mr Smith has commenced any proceeding, in any court or tribunal, that may result in him being reinstated to his previous role or being re-employed in a similar role. 7 [2022] QIRC 398. -- 5 of 24 -- 6 [12] Given the above considerations, there can be no practical utility in me hearing and determining Mr Smith's appeal. Even if I found that the decision appealed against was not fair and reasonable, I could make no order that could have any practical effect in respect of Mr Smith's former employment. [16] Within the context of hearing appeals which have a 'practical effect' upon an appellant's employment, in Venables v State of Queensland (Queensland Health),8 Deputy President Merrell found: [20] Having considered the submissions of both Ms Venables and the Department, my view is that I should exercise my discretion and not hear Ms Venables' appeal. This is for the compelling reason that given that Ms Venables is no longer an employee, there can be no practical effect from any decision I make in respect of her appeal. [21] If I confirmed the decision appealed against, that decision can be of no effect on Ms Venables because her employment has been terminated. [22] Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that Ms Venables should have been granted an exemption under the Directive, that decision can have no practical effect on Ms Venables because she is no longer an employee. [23] In my view, in general, the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment. In Ms Venables' case, any decision I make will have no practical effect on her continued employment. [24] This is a compelling reason not to hear Ms Venables' appeal. [17] This appeal is distinguishable from the cases mentioned above on the basis that it concerns a suspension without remuneration decision and the practical effect of a decision in favour of the Appellant would be a monetary payout for the period he was suspended without remuneration. Further, the Appellant was a public service employee and filed this appeal in accordance with the PS Act. There have been no other jurisdictional objections raised by the Respondent. [18] For those reasons, I will proceed to determine the substantive appeal. Submissions [19] I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided. Relevant Legislation and extracts from the Suspension Directive [20] This Decision is informed by the parties' submissions, the relevant legislation and the Public Sector Commission's Directive 06/23: Suspension (Suspension Directive). [21] Section 131 of the PS Act provides for decisions against which appeals may be made and relevantly provides as follows: 8 [2022] QIRC 137. -- 6 of 24 -- 7 131 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (f) a suspension without pay decision; … [22] Section 101 of the PS Act provides for the suspension of a public service employee as follows (emphasis added): 101 Suspension (1) A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes— (a) the employee is liable to discipline under a disciplinary law; or (b) the proper and efficient management of the entity might be prejudiced if the employee is not suspended. (2) The notice must state— (a) when the suspension starts and ends; and (b) whether the employee is entitled to remuneration for the period of the suspension; and (c) the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension. (3) However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee. Examples of reasonable alternatives which may be available to the employee— • alternative duties • a change in the location where the employee performs duties • another alternative working arrangement (4) The employee is entitled to normal remuneration for the period of the suspension, unless— (a) the employee is suspended under subsection (1)(a); and (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. … (9) In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102. -- 7 of 24 -- 8 [23] Section 91 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows: 91 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— (a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or (f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (g) contravened, without reasonable excuse, a provision of— (i) this Act, other than section 39 or 40; or (ii) another Act that applies to the employee in relation to the employee's employment; or … [24] Clause 7 of the Suspension Directive provides for the suspension of a person from duty in line with the following procedural matters (emphasis added): 7. Procedural matters relating to suspension 7.1 A chief executive of a public sector entity may suspend an employee as provided for under section 101 of the Act. 7.2 In accordance with the requirements under section 101(2) of the Act, a suspension notice must state an end date, or express the period of the suspension in terms of a specified number of weeks or months. It is not sufficient to state that suspension will end by reference to events, such as 'until this disciplinary process is finalised', or to state that the suspension will continue 'until otherwise determined'. A suspension notice advising of suspension without remuneration must also include information on the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act), and the directive relating to appeals. 7.3 When considering all reasonable alternatives as provided for at section 101(3) of the Act: -- 8 of 24 -- 9 (a) the individual circumstances and facts of the matter must be assessed on their own merits to determine whether there are reasonable alternatives available to the employee, and whether it would be reasonable to direct the employee to undertake those alternative arrangements, or whether it is appropriate to suspend the employee (b) alternative duties do not have to form part of an established role and can be outside the employee's usual place of work (c) employers must document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. 7.4 Entities must have ongoing and clear communication with the employee, both throughout the suspension process and immediately before returning to work. This will assist in clarifying the employer's expectations for the employee and help in the situation where an employee needs to be reintegrated into the workplace. An appropriate contact person may be assigned to perform this function. 7.5 The employee should also be offered support on an ongoing basis whilst on suspension. For example, referral to an employee assistance program, participation in a mentoring process with a third party, or other invitations to access support. [25] Clause 8 and 9 of the Suspension Directive provides for suspension of an employee from duty without remuneration in the following terms (emphasis added): 8. Suspension without remuneration 8.1 A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension. 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: (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 (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. 9. Procedural fairness 9.1 Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness. 9.2 As part of the suspension without remuneration process: (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 (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 (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 -- 9 of 24 -- 10 (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 (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. Consideration What decisions can the Commission make? [26] Section 562C of the IR Act prescribes that the Commission may determine to either: • confirm the decision appealed against; • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or • set the decision aside and substitute another decision. Appeal principles [27] Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [28] The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process. [29] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. In reviewing the decision appealed against, the Commission may allow other evidence to be taken into account. Fair and reasonable [30] In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,9 Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals. [31] In State of Queensland (Queensland Health) v Hume,10 his Honour explained (citations omitted): 9 [2024] ICQ 3. 10 Ibid. -- 10 of 24 -- 11 [41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons. [42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning. [43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness. [44] Similar arguments made to the Commission have been rejected by the Commission. [45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning. … [48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely: • that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and • that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning. [49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact. [50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act. [51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole. … [53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department. -- 11 of 24 -- 12 When can the Respondent take a decision to suspend an employee? [32] The PS Act states (emphasis added): 101 Suspension (1) A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes— (a) the employee is liable to discipline under a disciplinary law; or … [33] The parties' submissions diverge on the question of whether or not the Appellant should have been paid for the period he was suspended (either by retaining the original terms of the 'suspension with pay' - or if the Respondent should have revisited the requirement to explore any alternative duties that may have been undertaken by him to achieve this outcome). Can the Respondent change the terms of the suspension from 'with pay' to 'without pay'? [34] The Respondent's initial determination to apply a 'suspension with pay' to the Appellant does not mean it cannot make a different decision at some later time. [35] Section 101(4) of the PS Act provides that (emphasis added): (4) The employee is entitled to normal remuneration for the period of the suspension, unless— (a) the employee is suspended under subsection (1)(a); and (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. … [36] The point to draw from the above legislative provision is that while the default position is taken to be 'suspension with pay', it is nonetheless open to the chief executive to decide otherwise, if satisfied of the relevant criteria. [37] While it is certainly open to the Respondent to make a different decision about the terms of the Appellant's suspension from duty, that is not an unfettered power. Such decision must be fair and reasonable. It should only be exercised in limited circumstances - and in a way consistent with the mandatory requirements (that is, considerations of the relevant factors, reasonable alternatives and natural justice). What must the Respondent do before suspending an employee without pay? [38] Any decision to suspend the Appellant without pay must comply with the legislative provisions, as contained in the PS Act and the Suspension Directive. -- 12 of 24 -- 13 [39] Ahead of deciding to suspend the Appellant without pay, the Respondent must have proper regard to: • Natural justice principles; • The suspension notice; • Reasonable alternatives; • Any arguments raised by the Appellant; and • Relevant factors, including: (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 (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. Did the Respondent afford the Appellant 'natural justice', before making the decision to suspend him without pay? [40] Natural justice is a term used interchangeably with procedural fairness. A summary of some of the relevant principles of natural justice follows: • Natural justice is a flexible concept; it does not impose any specific rules per se, but rather encapsulates a range of principles.11 • It requires the adoption of fair procedures which are appropriate and adapted to all the circumstances of the case.12 • Foundationally, it requires that a person should have a reasonable opportunity to make their case.13 • Natural justice is not a one-sided consideration.14 11 Kioa v West (1985) 159 CLR 550, [11], [15], [33]. 12 Ibid [33]. 13 Russell v Duke of Norfolk (1949) 1 All ER 109, 118. 14 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504. -- 13 of 24 -- 14 • The matter of whether natural justice has been afforded in any given process should be considered holistically, rather than unduly narrowly focusing on one step or stage.15 [41] The relevance to this matter is not whether the rules of procedural fairness or natural justice apply. They quite plainly do. Clause 9.1 of the Suspension 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. [42] It is part of any consideration of whether a decision was fair and reasonable. The foundational problem here is determining what natural justice requires in this circumstance, and then whether it was afforded. That involves a holistic view of the matter, rather than an artificially narrow consideration of any one particular step in the process utilised by the Respondent. [43] In addition to the 'natural justice' commentary above, the Suspension Directive states that (emphasis added): 9.1 Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness. 9.2 As part of the suspension without remuneration process: (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 (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 (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 (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 (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. 15 Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564, [29]. -- 14 of 24 -- 15 Failure to particularise reasons [44] In its submissions, the Respondent cited multiple instances of inappropriate conduct exhibited by the Appellant including and prior to the incident reported on 22 November 2022, as to why it decided to suspend the Appellant without pay, including:16 • On 21 October 2020, the Appellant was reminded of his obligations to behave appropriately towards others in the workplace following a complaint from an employee, wherein it was alleged that the Appellant had made her feel uncomfortable in the workplace. The Appellant apologised to the complainant. • On 12 July 2021, the Appellant was formally warned about inappropriate and unprofessional conduct towards patients after a complaint had been received from a patient about how the Appellant touched them and made them feel uncomfortable. [45] Attached to the Respondent's submissions is a Briefing Note signed by Dr Michael Cleary in relation to the initial decision to suspend the Appellant with full pay. The Briefing Note dated 2 December 2022, refers to these previous two instances when determining to suspend the Appellant.17 In considering to suspend the Appellant (on full pay), the Briefing Note outlined that the Appellant had been the "subject officer in three (3) incidents where concerns were raised relating to his inappropriate conduct towards colleagues and patients" and that while none of the complaints had resulted in a formal disciplinary process, the Appellant had "demonstrated a pattern of inappropriate behaviour".18 The Briefing Note concluded that following the "previous incidents", the Appellant attended various training courses to improve his conduct to patients and staff, however, had demonstrated "an inability to improve his behaviour and conduct."19 [46] In their written submissions, the Respondent submitted that the Decision was fair and reasonable as the Appellant had previously been put on notice in relation to his conduct towards others "on more than one occasion".20 [47] It is apparent that the Respondent had regard to the cumulative effect of the three separate incidents in determining to suspend the Appellant with and without pay. The previous two incidents were not put to the Appellant during the show cause process as to why the Appellant should not be suspended without remuneration. [48] In the Delegate's initial correspondence dated 23 March 2023 requesting the Appellant show cause as to why he should not be suspended without pay, only made reference to "concerns raised regarding your professional conduct and behaviour as a Registered 16 Respondent's submissions filed 22 January 2024, [6]-[8]. 17 Ibid Attachment 1, 2. 18 Ibid. 19 Ibid 3. 20 Ibid [25]. -- 15 of 24 -- 16 Nurse" that were reported on "21 November 2022".21 The Delegate advised these allegations had been referred to the OHO and Crime Corruption Commission. There was no mention of the other two incidents on 21 October 2020 or 12 July 2021 in the initial notice or any subsequent correspondence. In the 'show cause' letter issued on 25 September 2023, there too was no mention of these incidents and the letter simply referred to previous correspondence issued on the matter. [49] Clause 9.2 of the Suspension Directive clearly states the employee must notified in writing "the reasons that it is proposed that the employee be suspended without remuneration". The Respondent failed to sufficiently outline the reasons they considered it was not appropriate for the Appellant to be entitled to normal remuneration for the period of the suspension, which included the three separate and distinct incidents enabling them to form a view that the Appellant demonstrated a 'pattern' of inappropriate behaviour. [50] I accept the Appellant's submissions that there was a lack of natural justice and procedural fairness in this regard, as the Respondent had considered these matters and not put them to the Appellant during the show cause process. [51] It was not fair or reasonable for the Appellant to not be able to respond to these previous allegations when disputing that he should not be suspended without pay. No opportunity for the Appellant to respond to allegations [52] The Appellant submitted at the time of making the Decision, the Respondent had not given the Appellant an opportunity to respond to any allegations. The Respondent had only put to the Appellant that he was suspended in relation to unparticularised concerns the Respondent had about his conduct and that it was aware 'the matter' had been referred to the Queensland Police Service (QPS). 22 The Appellant received the show cause notice regarding the allegations on 3 January 2024, after the Decision was made to suspend him without pay.23 [53] The suspension process is administrative in nature and only requires that the Delegate to 'reasonably believe' the Appellant is liable to discipline. Clause 4.7 of the Suspension Directive outlines that 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." [54] The Suspension Directive does not require that disciplinary findings are made, or even that responses to formal allegations are requested before a decision is made. It is required however, that the employee is given an opportunity to respond to the proposed suspension without remuneration, through a 'show cause' process where the employee is notified in 21 Appeal notice filed 19 December 2023, Attachment 2. 22 Appellant's submissions filed 7 February 2024, [10]. 23 Ibid [11]. -- 16 of 24 -- 17 writing of the reasons it is proposed that the employee be suspended without remuneration. [55] Although the Respondent need only have a reasonable belief that the employee is liable to discipline under a disciplinary law, I am dissatisfied with the Department's lack of specificity in the allegations put to the Appellant – particularly given the Appellant's previous conduct was considered and not put to him. [56] It is for these reasons that I find there was a lack of procedural fairness afforded to the Appellant. Did the Respondent consider all reasonable alternatives? [57] Under the PS Act and Suspension Directive, the Respondent must consider all reasonable alternatives. Section 101(3) of the PS Act provides: (3) However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee. Examples of reasonable alternatives which may be available to the employee— • alternative duties • a change in the location where the employee performs duties • another alternative working arrangement [58] When considering all reasonable alternatives, clause 7.3 of the Suspension Directive provides: (a) the individual circumstances and facts of the matter must be assessed on their own merits to determine whether there are reasonable alternatives available to the employee, and whether it would be reasonable to direct the employee to undertake those alternative arrangements, or whether it is appropriate to suspend the employee (b) alternative duties do not have to form part of an established role and can be outside the employee's usual place of work (c) employers must document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. [59] As outlined in Philp v State of Queensland (Department of Education)24 the obligation to document and provide the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options, arises at each decision to further suspend an employee. [60] The Appellant submitted that a major failing in the Respondent's approach to this matter was that the Respondent did not appropriately consider alternatives open to him. The Appellant's registration conditions permitted him to "use his professional knowledge to 24 [2023] QIRC 219. -- 17 of 24 -- 18 practise in management, administration, education, research, advisory, regulatory or policy development roles".25 [61] The Respondent submitted that its "consideration of alternative duties was explained to the Appellant" and that they determined it was not appropriate for the Appellant to remain in the workplace. 26 This is because keeping the Appellant out of the workplace was a proportionate response given that they suspected unlawful conduct had occurred under the Sex Discrimination Act 1984 (Cth), and the Respondent has a duty to eliminate sex- based harassment in connection with work.27 [62] I accept the Respondent's position regarding the nature and seriousness of the alleged conduct and accept the risk associated with returning the Appellant to the workplace while the charges remained untested. However, I cannot identify any clear or satisfactory consideration of reasonable alternative arrangements. [63] The Decision did not evidence proper consideration given to what reasonable alternatives were considered or why it was not appropriate for the Appellant to undertake those alternatives. The Delegate outlined in the Decision: I confirm that I have carefully considered all reasonable alternatives available to you in the circumstances. I note that in my most recent correspondence dated 25 September 2023, I advised you that I had 'considered all reasonable alternatives including alternative duties, a temporary transfer or another alternative work arrangement.' As noted in my letter, 'given the nature and seriousness of the alleged conduct, I do not consider it appropriate for you to be in the workplace while these allegations are yet to be addressed'. Accordingly, I reject your assertion that I have failed to 'document and provide' to you what duties or other options have been identified and considered, including any reason why you could not undertake those alternative options. [64] While the Delegate outlined that he had considered "all reasonable alternatives", the Delegate did not provide specific examples of what alternative arrangements were considered or provide sufficient reasons why the Appellant could not undertake those alternative duties, perhaps in a work from home arrangement. The Appellant's registration conditions permitted him to "use his professional knowledge to practise in management, administration, education, research, advisory, regulatory or policy development roles". The Respondent did not evidence roles that were considered of such nature. 25 Appellant's submissions filed 7 February 2024, [2]-[4]. 26 Respondent's submissions filed 22 January 2024, [25]-[26]. 27 Ibid. -- 18 of 24 -- 19 [65] In the recent matter of Colebrook v State of Queensland (Queensland Health),28 consideration of alternative arranges was documented and evidenced by the Delegate in the following terms: [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 whilst 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.29 [66] The decision maker of the appealed decision in Colebrook v State of Queensland (Queensland Health),30 clearly considered and expressed a far more thorough evaluation of alternative arrangements. That consideration was fair and reasonable in contrast to that evidenced in the Decision subject of this appeal. Did the Respondent consider all 'relevant factors'? [67] Under s 101(4) of the PS Act, an employee is entitled to normal remuneration for the period of the suspension unless: • the employee is suspended because the decision maker reasonably believes that the employee is liable to discipline under a disciplinary law; and • 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. Liability for discipline [68] The Appellant submitted that a Chief Executive is not permitted to suspend without normal remuneration if they believe the employee 'may be' liable for discipline, and the belief an employee 'is liable' requires an employer to make a positive finding about the likelihood of a disciplinary finding. The Appellant submits, in the absence of the 28 [2025] QIRC 053. 29 Ibid [19]. 30 [2025] QIRC 053. -- 19 of 24 -- 20 Appellant's response to the Allegations at the time of making the Decision under appeal, the Respondent was unable to form the requisite belief he was liable for discipline.31 [69] The PS Act provides that a public sector employee may be suspended from duty if the chief executive 'reasonably believes' the employee is liable to discipline under a disciplinary law. [70] In Colebourne v State of Queensland (Queensland Police Service),32 Deputy President Merrell considered the concept of 'reasonable belief' as (emphasis added): [28] 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.33 [71] In BR v State of Queensland (No. 2) ('BR'),34 Industrial Commissioner Hartigan (as she then was) set out the requirements of 'reasonable belief' under the equivalent provision of the Public Service Act 2008 (Qld) as: Relevantly, s 137(1)(b) of the PS Act refers to the chief executive holding a 'reasonable belief' that the employee is liable to discipline under a disciplinary law. That provision does not require any positive finding that circumstances exist that assume disciplinary action will be taken. The facts referred to by the decision maker that informed the reasonable belief that the Appellant is liable to discipline under a disciplinary law include the criminal offences with which the Appellant has been charged and the Appellant's responses provided during the course of the show cause process.35 [72] In BR,36 the Respondent submitted that the words 'liable to discipline' should be read to mean 'subject to the probability of discipline'.37 [73] The Respondent submitted that on the evidence available to them at the time, the Decision was reasonably open to the Delegate. The evidence comprised the complaint that was made to the Respondent by a colleague who witnessed the conduct, the outcome of the OHO investigation, the criminal charges and the Appellant's admission that the conduct occurred to the QPS. Based on the evidence, the Delegate reasonably believed that the Appellant was liable to discipline. [74] Another ground for discipline the Delegate reasonably believed the Appellant was liable for, was due to the Appellant's failure to notify his line manager when he was charged 31 Appellant's submissions filed 7 February 2024, [17]. 32 [2022] QIRC 018. 33 Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 34 [2022] QIRC 154. 35 Ibid [39]. 36 Ibid. 37 Ibid [38]. -- 20 of 24 -- 21 with an indictable offence under s 352(1)(A) of the Criminal Code Act 1899 (Qld) within 48 hours of being charged.38 [75] I am satisfied that the Delegate reasonably believed the Appellant was liable to discipline. Although the allegations had not yet been put to the Appellant, the Appellant had been charged with sexual assault offences under s 352(1)(A) of the Criminal Code Act 1899 (Qld). In the Appellant's statement to QPS dated 16 March 2023 which was before the Delegate, the Appellant admitted to "knowing that the testicles are one of the most sensitive parts in terms of inducing response to pain" and proceeding to "gently at first and then gradually with increasing pressure [use] his testicles as a means of determining whether [the patient] was conscious or not".39 Further, the investigation by the OHO determined that applying pressure to the patient's testicles was "out of scope" in the Appellant's role as a registered nurse.40 The OHO report outlined that the approach used by the Appellant was "not an approach that would be utilised in clinical practice and is not an acceptable or safe method to rouse a patient".41 [76] Based on the evidence before the decision maker, I am satisfied he could have reasonably believed that the Appellant was liable to discipline, having admitted to grabbing the patient's testicles which was outside the scope of his duties as a Registered Nurse. [77] The Appellant submitted that there was a reasonable excuse for the admitted conduct. In a heightened environment created due to this patient's medical history, the Appellant was concerned for the patient's loss of consciousness. Prior to grabbing the patient's testicles, the Appellant called "his name loudly and repeatedly" conducted a "trapezius squeeze" and tapped "him on the chest with increasing vigor" to no avail.42 The Appellant then applied pressure to the patient's testicles to elicit a response from the unconscious patient. The patient responded to this stimulus, as the patient attempted to move the Appellant's hand away from his testicles.43 In respect of the allegation that he failed to notify his line manager within the required time period, the Appellant submitted he was not aware of his obligation to notify the Respondent until seeking advice from the Queensland Nurses and Midwives' Union. The Appellant subsequently advised the Respondent five days after being charged.44 [78] I will not consider whether or not there was a reasonable excuse for the conduct alleged by the Respondent. My determination for this appeal is whether or not the decision to suspend the Appellant without pay for the period 29 November 2023 to 29 February 2024 38 Which is required 'immediately' under s 73 of the Public Sector Act 2022 (Qld) and within 48 hours under Queensland Health's HR Policy E4, Employees to notify supervisor if charged with or convicted of an indictable offence. 39 Respondent's submissions filed 22 January 2024, Attachment 4. 40 Ibid Attachment 6. 41 Ibid. 42 Ibid Attachment 4. 43 Ibid Attachment 5. 44 Appellant's submissions filed 7 February 2024, [26]. -- 21 of 24 -- 22 was fair and reasonable. That only requires consideration of whether or not the chief executive could 'reasonably believe' the employee was liable to discipline. I am satisfied that based on the evidence, the Delegate held the requisite belief. The nature of the discipline [79] Section 101(4)(b) of the PS Act provides that an employee is entitled to normal remuneration for the period of the suspension, unless the employee's chief executive considers that is not appropriate, having regard to the nature of the discipline to which the chief executive believes the employee is liable. [80] Clause 8.2 of the Suspension Directive provides that (emphasis added): 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: (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 (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. [81] I am not satisfied that either of these limitations apply in this case. Factors outside the Respondent's control preventing the timely conclusion of the discipline process [82] The Respondent did not provide in their written submissions, or outline in the Decision, that there were factors not within the control of the agency that were preventing the timely conclusion of the disciplinary process. [83] The Delegate outlined in the Decision that: Having regard to the factors set out at clause 8.2(a) of the Directive, I note that the criminal charges against you relate to sexual assault under section 352(1)(A) of the Criminal Code Act 1899 (Qld) (the Criminal Code). The nature of the discipline matter therefore is of the utmost serious nature. It is also relevant that the charges against you relate to your conduct while in the workplace, and relate to your conduct towards a patient of MSH. [84] The Delegate simply referred to the nature of the allegations as being serious in nature. [85] Seemingly, there were no factors preventing the timely conclusion of the disciplinary process because that process had concluded by April 2024. [86] On 18 October 2023, the criminal charges against the Appellant were referred to Adult Restorative Justice Conferencing by the QPS. The patient relevant to the allegations had agreed to attend the conferencing. On the material before me, it appears that the QPS -- 22 of 24 -- 23 never referred the matter to the court and there is no reason provided by the Respondent for the delay in putting the allegations to the Appellant until 3 January 2024. [87] I am not satisfied that there were any factors outside the Respondent's control delaying the disciplinary process from being undertaken in a timely manner. Whether it was fair and reasonable to suspend the Appellant without remuneration taking into account the financial impact on the employee and the broader public interest [88] I appreciate that the Respondent noted its obligations to manage public resources efficiently. That is true. However, it also holds an obligation to 'treat employees fairly and reasonably'. The first obligation is not elevated over the second. [89] Balancing both obligations requires the proper assessment of maximising return on the investment in managing that risk and / or how to mitigate that cost. As I found in Thomson v State of Queensland (Department of Education):45 the Department's requirement to manage public resources effectively may in fact inspire a deeper exploration of alternative duties or meaningful work that the Appellant may be deployed to undertake, to yield some return on the wages paid to him in the coming period.46 [90] At the time of the Decision, the Appellant had not been provided with the opportunity to respond to any allegations. The Respondent submitted that it is in the public interest to take strong decisive action in relation to suspected unlawful conduct, especially when the conduct related to concerns of "serious criminal charges of sexual assault on patients".47 In my view, it is not in the public interest to cause detriment to an employee who has not yet been presented the opportunity to formally respond to any allegations, while he is trying to financially provide for his wife and five children. Further in this instance, I would have encouraged the Department to first review whether or what 'reasonable alternatives' may be yet identified for project work the Appellant could independently perform, perhaps in a 'work from home' arrangement. [91] The Respondent submitted that the public is likely to perceive the continuation of suspension on full remuneration of the Appellant as unacceptable in the circumstances.48 I find my observations in Philp v State of Queensland (Department of Education)49 most apposite to that argument: [88] With respect to the Respondent's consideration of "the perception of the public regarding: your ongoing remuneration during the period of your suspension in the above circumstances …" , the Appellant has been suspended with pay for a lengthy period, without the identification and allocation of any suitable alternative duties. The Appellant is presumed innocent - but the risk must be managed while the criminal and regulatory proceedings run 45 [2022] QIRC 402. 46 Thomson v State of Queensland (Department of Education) [2022] QIRC 402, [63]. 47 Respondent's submissions filed 22 January 2024, [42]. 48 Ibid [43]. 49 [2023] QIRC 219. -- 23 of 24 -- 24 its course. In the meantime, some return on remuneration by the performance of meaningful work commensurate with the Appellant's experience and qualifications, would mitigate the cost to the community of the Appellant's presumption of innocence in my view. Conclusion [92] In light of all the circumstances I have considered above, I find that the Appellant's suspension without pay was not fair and reasonable. [93] I order accordingly. Orders That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The appeal is allowed. 2. The decision of 24 November 2023 is set aside and another decision is substituted. 3. The Appellant is suspended on normal remuneration for the period 29 November 2023 to 29 February 2024. 4. The Respondent is to reimburse the Appellant for the normal remuneration he had been deprived of from 29 November 2023 to 29 February 2024. -- 24 of 24 --