Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Katie Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 004 PARTIES: Colebourne, Katie (Applicant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2022/8 PROCEEDING: Application to stay decision appealed against DELIVERED ON: 11 January 2022 HEARING DATE: 10 January 2022 MEMBER: Knight IC HEARD AT: Brisbane ORDER: The application to stay the decision being appealed is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – application to stay decision appealed against – Commissioner of the Queensland Police Service issued direction on 7 September 2021 mandating certain employees, unless exempted, must receive a COVID-19 vaccine, including a first dose, by set date – applicant applied for exemption – exemption refused – applicant suspended on remuneration – suspension continued without remuneration, following show cause process – applicant, pursuant to ch 7 of the Public Service Act 2008, appealed against the decision to continue suspension without -- 1 of 20 -- 2 remuneration – applicant seeking, pursuant to s 566(1) of the Industrial Relations Act 2016, that decision being appealed be wholly stayed pending determination of the substantive appeal – consideration of matters in granting a stay – arguable case – balance of convenience – stay refused – application dismissed LEGISLATION AND INSTRUMENTS: Directive 16/20 Suspension cl 6.3 Industrial Relations Act 2016 (Qld) ss 562B, 566(1) Instrument of Commissioner's Direction No. 12 paras 1, 2, 3, 4, 5, 8, 9, 10, 11, 15 Instrument of Commissioner's Direction No. 14 Police Service Administration Act 1990 (Qld) ss 2.5, 4.9 Public Service Act 2008 (Qld) ss 119, 137, 194, 197 Work Health and Safety Act 2011 (Qld) CASES: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453 Croney v Nand [1999] 2 Qd R 342 Frigo v Culhaci [1998] NSWCA 88 -- 2 of 20 -- 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Kioa and Others v Minister for Immigration and Ethnic Affairs and Anor (1985) 159 CLR 550 MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235 Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116 Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398 Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Police Service Board v Morris (1985) 156 CLR 397 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013 State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190 The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507 The Shire President Councillors and Ratepayers of the Shire of Swan Hill v Bradbury (1937) 56 CLR 746 -- 3 of 20 -- 4 Together Queensland & Ors v State of Queensland [2013] QSC 112 APPEARANCES: Ms Janette Colebourne for the Applicant Ms A Howell of the Queensland Police Service for the Respondent Reasons for Decision [1] Ms Katie Colebourne is employed by the State of Queensland through the Queensland Police Service ('the Service') as a Client Services Officer (AO3), within the Weapons Licencing section of Operations Support Command. She has been employed by the Service for approximately four years. [2] Prior to her suspension, Ms Colebourne worked out of 16 Mary Street, Brisbane CBD where the Brisbane City Police Station is presently based. As best I understand, the area within which she worked is located on level three of the building. [3] Ms Colebourne is employed as a staff member of the Service within the meaning of s 2.5 of the Police Service Administration Act 1990 (Qld) ('the Act') and is appointed as an officer of the public service pursuant to s 119 of the Public Service Act 2008 (Qld) ('the PS Act'). [4] On 7 September 2021, pursuant to s 4.9 of the Act, the Commissioner of the Service ('the Commissioner') issued the Instrument of Commissioner's Direction No. 12, concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members retained by the Service ('Direction No. 12').1 [5] Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to s 119 of the PS Act and who are frontline staff members, or frontline support staff members, as defined in paragraph 15 of the direction. [6] Relevantly, the term 'frontline support staff member' is defined exhaustively under paragraph 15 of Direction No. 12 as: ... [A] staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services, including services performed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir). [7] Paragraph 7 of Direction No. 12 provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraph 8 or 9, all such staff members must 1 I note Direction No. 12 was superseded by Instrument of Commissioner's Direction No. 14 on 14 December 2021, however, the latter is not relevant for present circumstances and, in any event, the pertinent parts are in materially the same terms as the earlier direction. -- 4 of 20 -- 5 receive at least one dose of a COVID-19 vaccine by 4 October 2021, receive a second dose of a COVID-19 vaccine by 24 January 2022, and provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate. [8] The direction provides an exemption from vaccination requirements if the police officer or staff member is unable to be vaccinated due to a medical contraindication and they provide medical evidence to this effect in accordance with the direction, or if the Commissioner or the Commissioner's delegate grants an exemption due to a genuine religious objection or due to other exceptional circumstances. [9] In a decision letter dated 22 December 2021, A/Assistant Commissioner, Ethical Standards Command, Virginia A Nelson APM informed Ms Colebourne she would be suspended without remuneration from midnight on 31 December 2021 until 22 June 2022, unless revoked sooner ('the Decision'). [10] By appeal notice filed 6 January 2022, Ms Colebourne appeals the Decision under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').2 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.3 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.4 [11] Within her grounds of appeal Ms Colebourne seeks an interim order that the Decision be wholly stayed pending the determination of her appeal.5 [12] Section 566(1) of the IR Act relevantly provides that on appeal, the Commission may order that the decision being appealed be wholly or partly stayed pending the determination of the appeal or a further order of the Commission. [13] The question for my determination is whether I should grant the stay as sought by Ms Colebourne. [14] For the reasons that follow, I dismiss Ms Colebourne's application for a stay of the Decision. Background [15] Direction No. 12 was issued and took effect from 7 September 2021. Paragraphs 1 to 5 of Direction No. 12 set out the reasons why the Commissioner made the direction, in 2 Public Service Act 2008 (Qld) s 197. 3 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 4 Industrial Relations Act 2016 (Qld) s 562B(3). 5 Appeal notice filed 6 January 2022, Attachment A [2]. -- 5 of 20 -- 6 respect of the police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19. [16] Those paragraphs provide: Background 1. A public health emergency was declared on 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant, its increased virulence and severity of disease and the reduction in neutralising antibody activity. 3. While it is primarily police officers who are on the front line, many staff members: a) have close working relationships with police officers; b) interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and, c) are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir). 4. The Work Health and Safety Act 2011 places a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service. 5. While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to serve the community during a public health emergency. [17] Direction No. 12 provides for the ability for police officers and staff members, to whom the direction applies, to apply for and be granted an exemption from the mandatory vaccination requirement. Paragraphs 8 to 11 of Direction No. 12 provide: Exemption from requirements for vaccination against COVID-19 8. A police officer or staff member is exempt from the requirements in paragraph 7 if: a) the police officer or staff member is unable to be vaccinated due to a medical contraindication; and b) the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining: -- 6 of 20 -- 7 i) the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and ii) whether the condition is temporary in nature, and, if so, the duration. 9. A police officer or staff member is also exempt from the requirements in paragraph 7 if the Commissioner of Police (or delegate) grants an exemption: a) due to a genuine religious objection; or b) due to other exceptional circumstances. 10. A police officer or staff member who applies for an exemption under paragraph 9 must provide any supporting evidence requested. 11. An exemption granted under paragraph 9 must be given in writing and may be subject to conditions. A police officer or staff member given an exemption must comply with any conditions specified therein. [18] On 21 September 2021, the Commissioner sent an email to all police officers and staff members advising that all staff to whom Direction No. 12 applies were required to provide proof of receiving at least one COVID-19 vaccination to their Officer in Charge or Manager by 4 October 2021. [19] On 11 October 2021, Ms Colebourne applied for an exemption on the basis of 'exceptional circumstances' related to her inability to make an informed decision with respect to receiving the vaccine, as well as concerns her particular role does not fall within the definition of a 'frontline staff member' or 'frontline support staff member' for the purposes of Direction No. 12. Her request was refused on 15 October 2021. [20] In an email dated 15 October 2021, Ms Colebourne was advised: …the [Vaccination Exemption Committee] considered this Other (exceptional circumstances) request on 11/10/2021 and decided to not support the application based on the evidence provided. The Committee concluded that the documentation provided in support of the application did not include sufficient relevant evidence that supports exceptional circumstances. [21] After initially pursuing an internal review of the exemption refusal, Ms Colebourne sought to challenge the refusal on appeal and that matter is presently before another Member of this Commission for consideration (PSA/2021/420) ('the exemption appeal'). [22] As a consequence of her failure to be vaccinated or otherwise obtain an exemption, Ms Colebourne was suspended from duties, with remuneration, on 26 October 2021 and was provided with formal correspondence to that effect.6 [23] At the same time, Ms Colebourne was requested to show cause, within seven days, why her suspension should not be without pay.7 6 Exhibit 6 – Notice of Suspension with Remuneration and Show Cause Notice for Suspension Without Remuneration dated 26 October 2021. 7 Ibid. -- 7 of 20 -- 8 [24] Having received an extension to provide her response, Ms Colebourne responded to the show cause notice on 9 November 2021.8 [25] The response highlighted concerns about a lack of particulars or a reasonable explanation as to why Ms Colebourne should be suspended without pay,9 commentary around her initial confusion as to which roles are included in the definition of 'frontline support staff member',10 suggestions as to how a work from home arrangement might be implemented,11 a proposal to conduct a Rapid Antigen Test on a daily basis in lieu of a vaccination to eliminate the risk of an employee introducing COVID-19 into the workplace,12 and commentary around 'valid consent'.13 [26] Within her response, Ms Colebourne also raised concerns as to the adequacy of the clinical processes and testing of trials for COVID-19 vaccinations,14 observations as to the best way to manage the risk of transmission within the Service,15 highlighted differential treatment of employees within the Service in so far as it related to disciplinary processes and the decision to suspend with or without pay,16 and included a table summarising her expenses and detailing the financial hardship she would experience in the event she was suspended without remuneration.17 One of her more significant expenses was noted as an 'unconditional property agreement'. [27] On 22 December 2021, A/Assistant Commissioner Nelson informed Ms Colebourne her suspension would continue without remuneration from midnight on 31 December 2021 pursuant to ss 137(1)(b) and (4) of the PS Act.18 Relevant Principles [28] Section 566(1) of the IR Act provides: 566 Stay of decision appealed against (1) On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending— (a) the determination of the appeal; or (b) a further order of the industrial tribunal. ... 8 Exhibit 8 – Notice to Show Cause Response dated 9 November 2021. 9 Ibid 1. 10 Ibid 3. 11 Ibid. 12 Ibid 4. 13 Ibid. 14 Ibid 5. 15 Ibid. 16 Ibid 7. 17 Ibid 8. 18 Exhibit 9 – Notice of Suspension without Remuneration dated 22 December 2021. -- 8 of 20 -- 9 [29] The principles relevant to an application to stay a decision under appeal were conveniently set out by Merrell DP in Colebourne v State of Queensland (Queensland Police Service)19 ('Colebourne') where his Honour observed:20 [32] Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed. [33] ... [The] relevant principles that apply ... in determining whether or not to exercise discretion ... to grant a stay ... are: • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;21 • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;22 • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair; 23 • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;24 • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;25 • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.26 [34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.27 [35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.28 19 [2021] QIRC 380 ('Colebourne'). For clarity, I note this decision relates to a different Ms Colebourne and not the applicant for present circumstances. 20 References in original. 21 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694 (Kirby P, Hope and McHugh JJA) ('Alexander'). 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid 695. 26 Ibid. 27 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453, [13] (Keane JA, with whom McMurdo P at [2] and White AJA at [39] agreed) ('Cook's Construction'). 28 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 623 (Kitto, Taylor, Menzies and Owen JJ). -- 9 of 20 -- 10 [36] The above-mentioned principles have been applied by the Industrial Court of Queensland29 and by the Commission30 in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts. Ms Colebourne's Submissions [30] Ms Colebourne accepts the principles relevant to granting a stay are those set out in Colebourne.31 Relying on the decision in Alexander v Cambridge Credit Corporation Ltd32 ('Alexander'), Ms Colebourne argues the refusal to grant a stay may result in her appeal in this matter, and the exemption appeal, proving abortive as, without a stay, she may be disciplined or dismissed before the appeals are determined.33 [31] Further, she contends a refusal of a stay would have a significant financial impact on her.34 She highlights material provided to the decision-maker in the course of responding to the show cause process with respect to her financial position, submitting that suspending her without pay will render her unable to meet her financial obligations and result not only in destitution but also possible bankruptcy.35 [32] Although no evidence was provided to the Commission in support of Ms Colebourne's submissions about the financial impact of the decision to suspend without pay, in oral submissions, her representative clarified that a reference to a significant weekly contribution towards an 'unconditional property agreement' set out in earlier materials provided to the Service was, in a practical sense, a regular contribution to a bank account, the balance of which was intended to be utilised at some point in the future to satisfy an agreement for the purchase of land.36 The details in relation to the timing of the future purchase, and any related contract or agreement, are not entirely clear. [33] Conversely, Ms Colebourne submits the financial impact on the Service would be minimal.37 She adds there appears to be no operational impact on the Service, or any barrier to her position being backfilled as would be the case if she were on paid leave.38 In oral submissions, her representative argued it was open to the Service to suspend her on pay and appoint another person to undertake the duties Ms Colebourne would ordinarily perform. 29 State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013, [12] (O'Connor DP) ('Parer'); BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001, [8]-[10] (O'Connor VP). 30 State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190, [10] (O'Connor VP) ('Queensland Health'). 31 Ms Colebourne's Submissions filed 7 January 2022, [9]. 32 Alexander (n 21), 694-5. 33 Ms Colebourne's Submissions filed 7 January 2022, [10]-[11]. 34 Ibid [13]. 35 Ibid [14]. 36 T 1-36, ll 1-7. 37 Ms Colebourne's Submissions filed 7 January 2022, [18]. 38 Ibid [19]. -- 10 of 20 -- 11 [34] She denies there would be any work, health or safety risk, as it relates to COVID-19, in staying the decision, as the consequence would merely be that she would remain on suspension with pay, subject to any other industrial process on foot.39 [35] In oral submissions, Ms Colebourne's representative argued the Service failed to consider alternative work arrangements, whereby Ms Colebourne could be re-located to a building away from her colleagues, yet still continue to perform her duties.40 Moreover, she submitted this should have been a consideration when determining whether to suspend with or without remuneration.41 She also noted other employees from Ms Colebourne's area had returned to 'working from home arrangements', in light of recent announcements from the Chief Medical Officer.42 [36] Ms Colebourne maintains it is 'commonplace' for employees of the Service who are subject to an investigation process to be suspended with remuneration for months, or even years.43 She argues there is no greater disadvantage to the Service in this matter and stays in other disciplinary and suspension appeals are 'reasonable' and 'routine'.44 [37] In support of this position, her representative provided the Commission with three media articles detailing the progress or outcomes of disciplinary proceedings against several senior public servants, including two police officers, who, according to the articles, had enjoyed the benefit of a paid suspension for differing periods, while their respective matters were being investigated or concluded.45 [38] Ms Colebourne also disputes the nature and seriousness of the allegations against her, highlighting that no adverse finding or determination has yet been made.46 Rather, she contends there is nothing profound or serious about the allegation and, if she is successful in the exemption appeal, there will have been no basis for the Service to have suspended her in any capacity.47 [39] In oral submissions, her representative maintained the proper course would have been to continue Ms Colebourne on paid suspension, pending the determination of the exemption appeal.48 [40] Although Ms Colebourne's representative acknowledged the decision in Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors49 ('Brasell-Delow') 39 Ibid [21]. 40 T 1-25 ll 3-5; T 1-38 ll 13-25. 41 T 1-38 ll 13-25; T 1-40 ll 24-33. 42 T 1-38 ll 13-25; T 1-26 ll 6-8. 43 Ms Colebourne's Submissions filed 7 January 2022, [22]. 44 Ibid [18], [22]. 45 Exhibit 11 – Media articles as examples of other employees remaining on paid suspension. 46 Ms Colebourne's Submissions filed 7 January 2022, [16]. 47 Ibid [16]-[17]. 48 T 1-19 ll 1-8. 49 [2021] QIRC 356 ('Brasell-Delow'). -- 11 of 20 -- 12 confirmed it was open to the Commissioner to issue Direction No. 12, she argued Ms Colebourne's role as an AO3 Client Service Officer within Weapons Licencing, fell outside the scope of the direction.50 [41] Moreover, she submits her application for an exemption should have been approved in circumstances where, even if she was technically capable of being categorised as a frontline support staff member, she did not have regular contact with the public and police officers in their working role and the risks of COVID-19 could be mitigated in other ways.51 [42] In relation to her substantive appeal against the decision to suspend without remuneration, Ms Colebourne contends her prospects are not 'very poor'.52 [43] She maintains the Decision is a punitive response to the exemption appeal designed to coerce her, through economic pressure, to undertake a particular course of action contrary to the legislative purpose of s 137 of the PS Act.53 [44] She argues the present appeal concerns the purported exercise of a statutory power without the provision of natural justice and which will have the effect of extinguishing her rights in relation to remuneration.54 This, she submits, demonstrates a prima facie case of unreasonableness.55 [45] Ms Colebourne further submits, that in arriving at its decision to suspend without remuneration, there has been an overemphasis on the part of the Service on issues such as maintaining the public trust and financial accountability, and an inadequate consideration of the factors set out at cls 6.3(a)–(c) of Directive 16/20 Suspension ('the Suspension Directive').56 [46] Relying on an article published in the Sydney News Today,57 which included quotes by the decision-maker in relation to the Service's views about employees who fail to comply with the Commissioner's instructions, Ms Colebourne's representative also questioned whether she had been afforded the benefit of an unbiased decision-maker.58 [47] Although the decision dealt with an appeal relating to an exemption decision, another person and a different set of circumstances, during oral submissions, Ms Colebourne 50 T 1-45 l 46 to T 1-46 l 13. 51 T 1-31 ll 27-34. 52 Ms Colebourne's Submissions filed 7 January 2022, [23] citing Cook's Constructions (n 27) and Parer (n 29). 53 Ibid [25]. 54 Ibid [26]-[26] citing Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, [74], Kioa and Others v Minister for Immigration and Ethnic Affairs and Anor (1985) 159 CLR 550 and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. 55 Ibid [27]-[28]. 56 T 1-39 ll 13-45. 57 Exhibit 13 – Sydney News Today article published 28 October 2021. 58 T 1-28 ll 1-15. -- 12 of 20 -- 13 relied on several conclusions reached by Merrell DP in Colebourne, in support of her prospects of success.59 [48] Separately, Ms Colebourne's representative highlighted a 'Managing employee suspensions' guide located on the forgov.qld.gov.au website,60 which sets out factors that may be considered when determining whether to suspend an employee without remuneration, noting the circumstances of Ms Colebourne's suspension was poles apart from a circumstance where an employee is suspended without pay because of criminal charges.61 The Service's Submissions [49] Referring to the decision in Colebourne, the Service acknowledges the Commission's unfettered discretion to exercise its power to grant a stay.62 However, it submits the Commission ought to have regard to the principles enunciated in Alexander63 in considering whether to exercise that discretion.64 In this respect, it argues Ms Colebourne does not have an arguable case and the balance of convenience does not favour the granting of a stay.65 [50] Although it accepts an assessment of an arguable case is less stringent in that it requires less than proof on the balance of probabilities,66 the Service argues Ms Colebourne presents limited arguments that go towards the narrow issue on appeal, being whether the Decision was fair and reasonable.67 In doing so it contends the grounds for appeal in her appeal notice are 'broad statements with little substance'.68 [51] It submits Ms Colebourne has been afforded natural justice throughout the show cause process in that she was afforded opportunities to respond to the allegations, and those responses were duly considered by the decision-maker.69 [52] In response to Ms Colebourne's claims the Decision amounts to disciplinary action and is punitive in nature, it maintains the Decision was fair and reasonable.70 It relies on the 59 T 1-21 l 40 to T 1-23 l 40. 60 State of Queensland, Managing employee suspensions (Web page, 26 March 2021) https://www.forgov.qld.gov.au/working-in-the-public-service/conduct-and-performance/manage-conduct-and- performance-issues/workplace-complaints/manage-employee-suspensions. 61 T 1-26 ll 20-37. 62 The Service's Amended Submissions filed 7 January 2022, [4]. 63 Alexander (n 21), 694-5. 64 The Service's Amended Submissions filed 7 January 2022, [5]. 65 Ibid. 66 Ibid [6]. 67 Ibid [7] citing Public Service Act 2008 (Qld) s 194(1)(bb) and Industrial Relations Act 2016 (Qld) s 562B(3). 68 Ibid. 69 Ibid [8]. 70 Ibid [9]. -- 13 of 20 -- 14 written decision provided to Ms Colebourne in submitting she was provided clear evidence and an intelligible justification for the action taken by the Service.71 [53] The disciplinary allegations giving rise to the suspension are, the Service submits, serious and based on compelling evidence that Ms Colebourne failed to comply with Direction No. 12.72 In making that submission it argues Ms Colebourne's failure to be vaccinated limits the capacity of the Commissioner to meet her obligations under the Act and the Work Health and Safety Act 2011 (Qld) in the context of a public health emergency.73 [54] The Service highlights Ms Colebourne's role involves providing essential support in relation to weapons registry, enabling the effective delivery of frontline services.74 Although disputed by Ms Colebourne during the proceedings, it maintains her role involves contact with police officers in the workplace, and her worksite includes shared facilities such as meeting rooms, lifts and the foyer.75 The building, which is located in Brisbane city, is also accessible by the public.76 [55] With respect to the balance of convenience, it contends the relevant factors do not support the granting of a stay. If Ms Colebourne were to succeed in her appeal, it submits the Service would remediate any loss of pay suffered by her.77 [56] However, if Ms Colebourne were not successful, the Service submits it would be difficult to recover any excess pay provided to her, and that, further, the cost of attempting to do so would be a cost to the public service.78 The Service noted in oral submissions that if the stay were granted, it would not only be required to continue to pay Ms Colebourne, but it would also be necessary to appoint and pay another resource to undertake her role while she was suspended.79 [57] In this respect, the Service highlights it is required to consider the public interest in deciding whether to suspend an employee without pay and, in these circumstances, it considers paying Ms Colebourne would be inappropriate and inconsistent with that public interest.80 [58] The Service acknowledges Ms Colebourne's submissions that suspending her without remuneration will have a financial impact, however, states she is entitled to apply for paid 71 Ibid. 72 Ibid [10]. 73 Ibid. 74 Ibid [12]. 75 Ibid. 76 Ibid. 77 Ibid [14]. 78 Ibid. 79 T 1-47 ll 42-44. 80 The Service's Amended Submissions filed 7 January 2022, [15]. -- 14 of 20 -- 15 leave, and to seek alternative employment during her suspension. 81 These options, it submits, were set out in the decision letter provided to Ms Colebourne.82 [59] The Service confirmed Ms Colebourne has accrued 39 days recreation leave and that she has in fact applied for and been approved to receive payment for 43.5 hours of that leave for the period between 1 and 11 January 2022.83 Further, it notes Ms Colebourne has been approved to undertake outside employment with an external organisation for a period of six weeks.84 [60] During the proceedings, Ms Colebourne confirmed the nature of the appointment, noting she would, all things going well, undertake the role on a full-time (albeit temporary) basis, and receive the same remuneration as that in her current AO3 Client Services role. [61] In response, the Service questioned the utility of a stay in circumstances where Ms Colebourne is presently on paid leave and is commencing the external role at the conclusion of the leave period.85 [62] In relation to Ms Colebourne's capacity to access leave, the Service conceded, while making oral submissions, it would not be open to Ms Colebourne to apply for long service leave, in circumstances where she has less than ten years' service.86 Consideration [63] Ms Colebourne bears the onus of demonstrating the stay order proposed is 'fair to all parties' having regard to the balance of convenience.87 That is, the course most likely to achieve justice between the parties pending resolution of the question of Ms Colebourne's entitlement to relief, in this case, a determination as to whether the decision to place her on unpaid suspension was fair and reasonable. [64] In determining whether or not to grant a stay, a further issue I am required to consider whether Ms Colebourne's appeal raises an arguable case. As observed by O'Connor VP in State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act,88 having regard to the principles in Alexander,89 such an assessment: 81 Ibid [16]. 82 Ibid. 83 Ibid [16]-[17]. 84 Ibid [17]. 85 T 1-49 ll 1-6. 86 T 1-47 ll 11-21; Exhibit 10 – COVID19 related – Suspension without Remuneration and Accessing Leave Entitlements. 87 Alexander (n 21). 88 Queensland Health (n 30). 89 Alexander (n 21), 695. -- 15 of 20 -- 16 ... is designed to be 'protective' of the Respondent in the sense of being undertaken to test whether the appeal has 'been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgement.90 Arguable Case on Appeal [65] As previously observed in this Commission,91 a 'good arguable' case is 'one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 percent chance of success'.92 [66] In her submissions Ms Colebourne contends her prospects are 'not very poor'. [67] In support of her position that she has 'a prima facie case of unreasonableness', Ms Colebourne points to the exemption appeal in which she argues her position in Weapons Licensing is not frontline or frontline support and therefore not subject to Direction No. 12. [68] Essentially, she argues the Service should not have proceeded with its decision to suspend her without pay until the exemption appeal was determined in its entirety. [69] Although refuted by the Service during the proceedings, Ms Colebourne considers the steps taken by the Service to suspend without remuneration are related to the exemption appeal and designed to apply coercive economic pressure. [70] Moreover, she argues the Service failed to adequately consider cls 6.3(a)-(c) of the Suspension Directive when arriving at its decision, instead placing too much emphasis on financial considerations, in circumstances where it was not open to the decision-maker to draw such conclusions. [71] Unsurprisingly, the Service maintains Ms Colebourne has presented very limited arguments that go to the narrow matter for appeal, being whether the Decision was fair and reasonable, noting that both the submissions in respect of the stay, along with those contained in the Appeal Notice are broad statements with little substance. [72] Were it not for the oral submissions made on behalf of Ms Colebourne during the proceedings, I would most likely have agreed with the Service's position. [73] However, I note the test to determine whether Ms Colebourne has an arguable case is less stringent than requiring proof on the balance of probabilities.93 90 Queensland Health (n 30) [30]. 91 See Queensland Health (n 30), [12]; Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116, [21]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235, [16]. 92 Nimenia Maritime Corp v Trave GmbH & Co KG ('The Neidersachsen') [1984] 1 All ER 398, 404. 93 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 325. -- 16 of 20 -- 17 [74] Although I have some reservations as to several points raised by Ms Colebourne, there is insufficient material before me to determine whether the Service has in fact adequately complied with the requirements of cl 6.3 of the Suspension Directive. I hasten to add, this is a matter for the substantive appeal, and I have made no finding with respect to this point. However, on this basis, I am unable to conclude Ms Colebourne does not have an arguable case. Balance of Convenience [75] The balance of convenience is the course most likely to achieve justice between the parties pending the resolution of the substantive appeal, bearing in mind the consequences of the grant, or refusal, of the stay. [76] The onus is upon Ms Colebourne to demonstrate a proper basis for a stay which will be fair to both herself but also the Service.94 [77] In making my decision, I am acutely aware of the Service's statutory obligations for ensuring the health and safety of police officers and staff members, in addition to the health and safety of other people, including the public, with whom police officers and staff members interact when performing their functions. [78] Likewise, the Service is a publicly funded organisation, with accompanying obligations to use public resources in a responsible and effective manner. [79] Separately, I am mindful that Ms Colebourne has highlighted her financial obligations and submitted she will experience significant financial hardship if the stay is not granted. [80] In the current climate, I accept the Commissioner has attempted to address the Service's health and safety obligations, by issuing Direction No. 1295 which prescribes mandatory COVID-19 vaccination and mask requirements for police officers and other staff members, including Ms Colebourne. [81] During the proceedings, Ms Colebourne's representative was not prepared to accept she had not complied with Direction No. 12. Instead, she submitted Ms Colebourne was awaiting the outcome of the exemption appeal, after which she would give further consideration to the Commissioner's directions and whether she would take steps to become vaccinated. [82] For present purposes however, I accept Ms Colebourne has not yet complied with Direction No. 12 or its successor, Direction No. 14. 94 Alexander (n 21). 95 As well as Direction No. 14 which I have already noted has superseded Direction No. 12. -- 17 of 20 -- 18 [83] It was clear from submissions, the Service considers the situation to be problematic, given its work, health and safety obligations. [84] Relevantly, Ms Colebourne, was notified of Direction No. 12 and the accompanying COVID-19 vaccination and mask requirements in early September 2021. Although she was not successful, she was afforded the opportunity to apply for an exemption in early October 2021. [85] Section 137(1)(a) of the PS Act provides the Service may suspend a staff member from duty if the Commissioner reasonably believes the proper and efficient management of the Service might be prejudiced if the staff member is not suspended. [86] Having failed to provide the Service with evidence of receiving at least one dose of a COVID-19 vaccine by 4 October 2021, Ms Colebourne was suspended from duty, on full pay, pursuant to s 137(1)(a), until 31 December 2021. [87] Section 137(1)(b) of the PS Act provides the authority to suspend an employee from duty if the Commissioner reasonably believes the staff member is liable to discipline under a disciplinary law. [88] Section 137(4) of the PS Act provides an employee is entitled to normal remuneration during suspension, unless they are suspended under s 137(1)(b) and the Commissioner 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 Commissioner believes the employee is liable. [89] Despite Ms Colebourne's protestations as to the seriousness of the allegations against her, the difficulty here is that by late October 2021 she had still not complied with Direction No. 12, in so far as it related to complying with the vaccination requirements. [90] Notably, by this time, a Full Bench of this Commission had already concluded:96 [84] ... [On] a proper construction of the [PS Act] as a whole,97 and taken in the context of the [Service] being maintained as a disciplined force:98 1. within the restrictions that have been explained, the Commissioner may give a lawful direction to employees;99 2. the direction is given by the Commissioner in her capacity as the effective employer of the employees; 96 Brasell-Dellow (n 49); Footnotes in original. 97 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 98 Police Service Board v Morris (1985) 156 CLR 397; Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383; see generally The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507, [32]. 99 See generally The Shire President Councillors and Ratepayers of the Shire of Swan Hill v Bradbury (1937) 56 CLR 746, 756, considered in an industrial context in Together Queensland & Ors v State of Queensland [2013] QSC 112, [30]. -- 18 of 20 -- 19 3. unless there is 'reasonable excuse' not to comply, the employee must comply. [91] In circumstances where the Service issued a lawful direction, and where Ms Colebourne was unsuccessful in obtaining an exemption and had not yet provided the Service with proof she had complied with Direction No. 12, it was open to the Service100 to request she show cause as to why she should not be suspended without pay. [92] Ms Colebourne noted during the proceedings that having already been given approval to take annual leave, she was afforded a further extension of seven days to respond to the show cause notice. Certainly, it is not in contention that the Service has complied, at the very least, with its procedural obligations in terms of providing Ms Colebourne with adequate time to respond to the show cause notice. [93] Ultimately, Ms Colebourne was advised by the Service on 22 December 2021 that she would be suspended without pay, with effect from midnight on 31 December 2021. An appeal against the decision was lodged fifteen days later. [94] In support of her application for a stay, Ms Colebourne, albeit with no supporting evidence, has raised concerns about the financial impact of the Service's decision to suspend her with no remuneration. [95] Although there is no question that a suspension without pay is invariably accompanied by financial challenges, one of the difficulties I have with Ms Colebourne's submissions, when undertaking an assessment of the balance of convenience, is that at the conclusion of her annual leave in two days' time, to her credit, she is commencing – all things going well – full-time employment with another government agency. [96] Although it appears the employment she has secured is on a temporary basis, for a fixed period, Ms Colebourne will be paid at the same level she currently enjoys in her substantive role with the Service for the duration of the appointment. [97] At least for the period of her temporary employment, it would seem there is limited (if any) utility in granting a stay in circumstances where she will not suffer any hardship in a financial sense. [98] Ms Colebourne also enjoys a relatively healthy annual leave balance, which she is able, and has been encouraged, to access. Moreover, on the materials provided to the Commission, it does not appear she has any significant debt or dependents. [99] Separately, the Service has confirmed that, should Ms Colebourne succeed in the substantive appeal proceedings, it would be prepared to remediate any loss of pay for the relevant period, subject to the requirements set out at cl 6.7 of the Suspension Directive 100 Exhibit 2 – Executive Briefing Note dated 20 October 2021. -- 19 of 20 -- 20 and any other remuneration Ms Colebourne received during the period of her unpaid suspension. Conclusions [100] Although I have some sympathy for Ms Colebourne's situation and accept it is possible she could suffer financial hardship, at some point in the future, if a stay is not granted, it seems she has accrued a reasonable amount of paid recreation leave, which she is not precluded from accessing. [101] I also note the alternative employment, albeit temporary, she has secured and been approved to undertake. Likewise, in the event she is successful in her substantive appeal and any other respective appeals, the Service has confirmed it is prepared to remediate any loss of pay suffered by Ms Colebourne. [102] Given the limited materials or meaningful evidence before me in respect of other disciplinary matters concerning employees who have remained on paid suspension, I am not able to make any findings that Ms Colebourne has been treated differently from other employees involved in separate disciplinary processes. Nor am I able to conclude the Service is using its authority to suspend without pay as a punitive or coercive measure. [103] I am also unable to accept the argument advanced by Ms Colebourne that, absent a stay, the appeal may prove abortive. [104] On balance, I have formed the view that the balance of convenience does not favour the granting of this application. [105] Although I am not prepared to accept the Service's position that Ms Colebourne does not have an arguable case, for the reasons given above, I am not satisfied she has discharged the requisite onus of establishing there is a proper basis for the granting of a stay. Consequently, I am not persuaded this is an appropriate occasion on which I ought to exercise my discretion to grant a stay. The application must therefore be dismissed. [106] I order accordingly. Order The application to stay the decision being appealed is dismissed. -- 20 of 20 --