Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113 PARTIES: Casson, Darryn (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2021/437 PROCEEDING: Public Service Appeal – Appeal against suspension without pay decision DELIVERED EX TEMPORE ON: 22 March 2022 MEMBER: Dwyer IC HEARD AT: Brisbane HEARING DATE: 22 March 2022 ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against suspension without pay decision – where disciplinary process is on foot – where appellant submits that the decision is unfair and unreasonable – where decision is fair and reasonable LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 137 -- 1 of 8 -- 2 Reasons for Decision (ex tempore) Background [1] After a lengthy career as a police officer in both Victoria and Queensland, Mr Casson obtained qualifications in law and admission as a Legal Practitioner in Queensland. Mr Casson is currently employed as a civilian prosecutor with the Queensland Police Service ('the Respondent') in Townsville. [2] On or about 7 September 2021, Mr Casson was subject to a direction of the Police Commissioner that he receive vaccinations against COVID-19 by 4 October 2021 (first dose) and 23 January 2022 (second dose). Mr Casson has not complied with the direction. He applied for an exemption but was declined. Mr Casson remained steadfast in his objection to receiving the vaccines for a combination of safety and religious reasons. [3] On 20 October 2021, Mr Casson was suspended for noncompliance with the direction. He was suspended with remuneration, but was (at the same time) invited to show cause why he should not be suspended without remuneration. [4] Mr Casson responded to the show cause request (via his lawyers) on 7 November 2021. On 6 December 2021, Acting Assistant Commissioner Virginia Nelson issued a decision to suspend Mr Casson without remuneration, primarily pursuant to section 137(4) of the Directive 16/20 Suspension, cl 6 Human Rights Act 2019 (Qld) CASES: George v Rockett (1990) 170 CLR 104 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 APPEARANCES: Mr D. Casson, the Appellant Ms A. Howell for the Queensland Police Service -- 2 of 8 -- 3 Public Service Act 2008 (Qld) ('PS Act'). This is the decision that Mr Casson now seeks to appeal. Statutory framework for public service appeals [5] Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld). [6] The IR Act provides that appeals are dealt with by way of review. That is to say, it is not a rehearing of the matter in the form of a hearing de novo.1 The task of the Commission is to determine if the decision was fair and reasonable.2 [7] It follows that if the Commission considers a decision was reasonably open to the decision maker, then the decision ought not to be disturbed, regardless of whether the Commissioner hearing the appeal would have decided the matter differently. [8] Chapter 11 of the IR Act also provides for the orders that the Commission can make in such appeals. The IR Act provides that the commission, having heard an appeal, may make one of the following orders:3 (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or (c) for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate [9] My consideration of this matter centres on the provisions contained in section 137 of the Public Service Act 2008 (Qld) ('the PS Act'), clause 6 of the Directive 16/20, Suspension Directive ('the Directive'), and more broadly the Human Rights Act 2019 (Qld). [10] Section 137 of the PS Act relevantly provides: (1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes— 1 Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 2 Industrial Relations Act 2016 (Qld) s 562B(3). 3 Ibid s 562C. -- 3 of 8 -- 4 (a) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or (b) for a public service employee—the employee is liable to discipline under a disciplinary law. … (4) A public service employee is entitled to normal remuneration during a suspension, unless— (a) the person is suspended under subsection (1)(b); and (b) the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable. … (emphasis added) [11] Clause 6 of the Directive provides: … 6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include: (a) the nature of the discipline matter (b) any factors not within the control of the agency that are preventing the timely conclusion of the discipline process (c) the public interest of the employee remaining on suspension with remuneration. 6.4 A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence. As part of the suspension 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 can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension. (b) The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration. (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, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, 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 a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to -- 4 of 8 -- 5 respond, the chief executive may make a decision on grounds based on the information available to them. … (emphasis added) [12] Having regard to these provisions, it is clear that there are certain prerequisites to the exercise of the discretion to suspend without remuneration, namely: • the chief executive must reasonably believe the employee is liable to discipline; • the employee is already suspended from duty; and • the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable. [13] The factors to be considered in determining that normal remuneration is not appropriate are non-exhaustively set out in clause 6.3 of the directive but are otherwise unlimited. [14] Further, in the directive, before making a decision to suspend without remuneration, the employee must be given natural justice, including an opportunity to show cause why they ought not be suspended without remuneration. Submissions of the parties [15] The parties filed written submissions in accordance with directions issued from my chambers on 23 December 2021. In summary the Respondent submits (relying on the decision of Radev v State of Queensland)4 that the decision under review was a decision reasonably open the decision-maker and should not be disturbed. The Respondent reiterates the basis for the decision, namely, the serious and persistent failure to comply with the direction and the failed exemption application. [16] The Respondent further reiterates that consideration was given to the human rights considerations and points to the need to balance Mr Casson's human rights against the health and safety of his Queensland Police Service colleagues and the broader community. [17] Further, in an oral submission at the hearing, the Respondent also reiterated the careful consideration given by the decision maker to Mr Casson's personal circumstances when considering this decision. 4 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414. -- 5 of 8 -- 6 [18] Mr Casson submitted orally at the hearing that he had no objection to the process to which he had been subjected. That is to say, he was not critical of the procedure, only the outcome. [19] Mr Casson's written submissions re-agitate his objection to complying with the direction namely, his religious objection and his extensive safety concerns about the vaccine. With respect to Mr Casson, these submissions are not directly relevant to the decision under review. Having said that, they have some relevance, to the reasonable belief of the chief executive, that I will address in my consideration below. [20] In oral submissions at the hearing, Mr Casson gave a thoughtful summary of the impact that the decision has had on him personally, financially, and spiritually. It was apparent that Mr Casson felt the decision-maker did not give sufficient weight to the financial impact of the decision on Mr Casson and his family. [21] Overall, Mr Casson submits that the Queensland Police Service has failed to provide evidence to show why a suspension without remuneration was appropriate. Consideration [22] The suspension of an employee without remuneration will invariably produce significant detriment and disadvantage to the employee. It is a discretion that must be exercised with great care and attention to the rights of the employee, and with liberal doses of natural justice. [23] Suspension of an employee without remuneration is a rare (if not unheard-of) practice in the private sector. Nevertheless, the PS Act contemplates suspension without remuneration at section 137 and in the Directive so it is clear that the legislature contemplated that there would be circumstances where it was justified. [24] The prerequisites identified above are clearly intended to serve as safeguards against the misuse or abuse of the discretion found at section 137(4). The undisputed facts that sit in the background to these disciplinary proceedings are that Mr Casson was issued with a direction and that Mr Casson has clearly communicated that he will not comply with that direction. [25] This is an appeal against a decision to suspend Mr Casson without remuneration. The question of whether Mr Casson has any legitimate basis to refuse to comply with the direction is not a matter that I must address in this appeal except to the extent that it informs the chief executive’s reasonable belief. [26] I do not intend to set out or consider in detail the reasons for which Mr Casson refuses to receive a vaccine. Suffice to say he has a religious objection that relates to the use of -- 6 of 8 -- 7 human foetal tissue in the production of certain vaccines. Further, Mr Casson has expressed significant concern as to the safety and efficacy of the vaccines. Mr Casson's objections are familiar and common to many persons sharing his current predicament. [27] Reasonable belief can be formed by an inclination of the mind towards assenting to, rather than rejecting, a particular proposition.5 While I am not required to determine the merits of his objections, I note that Mr Casson’s concerns regarding safety and efficacy are contradicted by the overwhelming majority of the global scientific and medical community. In those circumstances, if Mr Casson’s views are the basis for refusing to comply with a lawful direction, then I anticipate that it is very likely that Mr Casson will be liable to discipline for his conduct. It follows that I consider that the decision-maker could reasonably believe the same. [28] Further, if it is ultimately established that Mr Casson has refused to comply with a lawful and reasonable direction then that form of misconduct represents a serious breakdown in the employment relationship that almost always justifies dismissal. [29] While not predetermining the disciplinary matter, it seems reasonable to me that the decision-maker was in a position to (at the very least) reasonably anticipate the process might end in the termination of Mr Casson’s employment. The non-exhaustive list at clause 6.3 of the Directive is (at best) a guide of the matters that might inform the discretion of the decision-maker considering the exercise of the discretion under section 137(4). [30] In this instance, Mr Casson is very much committed to his choice to refuse to comply with the direction. While he is entitled to his opinion, it can be objectively observed that his views are not supported by the recognised scientific and medical experts around the world. It would appear his insubordinate conduct is likely to make his dismissal a fait accompli. It would seem wholly inappropriate in these circumstances to continue to allow Mr Casson the benefit of his income for weeks (if not months) while the requisite multiple layers of procedural fairness accompanying his disciplinary process are exhausted. [31] I can appreciate entirely how the decision-maker considered it was not appropriate to continue to remunerate Mr Casson in those circumstances. Mr Casson raised the impact of the decision on him financially and on his family. I accept entirely that the decision has been devastating for Mr Casson and I am not unsympathetic. However, the language of section 137 talks about appropriateness in the narrow context of the anticipated disciplinary action.6 Section 137(4) does not invite a broader consideration of personal factors unique to the suspended employee. 5 George v Rockett (1990) 170 CLR 104. 6 The language of s 137(4) 'having regard to' has the narrowing effect. -- 7 of 8 -- 8 [32] Similarly, the non-exhaustive list contained in clause 6.3 of the Directive does not compel a decision-maker to consider the impact of the decision on the suspended employee. On the contrary, the identified grounds appear to broadly safeguard against the scenario where persons facing serious disciplinary outcomes have lengthy periods of paid suspension. I am satisfied that it was open to the decision-maker to conclude that it was not appropriate to continue to remunerate Mr Casson in those circumstances. [33] Further, and for completeness, I am satisfied that Mr Casson was afforded natural justice as required by the Directive. Before the decision was made a show cause process gave him an opportunity to comprehensively state his case against suspension without remuneration. [34] Finally, on the question of adequate consideration of Mr Casson’s human rights, I note the passage at page seven paragraph three of the decision where it says: It is a serious thing to place consequences on a person’s exercise of their dignity and autonomy to make decisions about their body. However, the risks posed by COVID-19 to the Service, its members, and the broader community are also very serious. Ultimately, I consider the importance of considering the health and safety objective outweighs the impacts on your human rights. [35] I concur entirely with this sentiment. [36] In all of the circumstances I consider that the decision is, in every respect, fair and reasonable. Order [37] In all of the circumstances, I make the following order: 1. The decision appealed against is confirmed. -- 8 of 8 --