Dunlop v State of Queensland (Queensland Health) [2026] QIRC 257

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dunlop v State of Queensland (Queensland Health) [2026] QIRC 257 PARTIES: Dunlop, Austin William Read (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2024/132 PROCEEDING: Public Service Appeal – Appeal against a suspension without pay decision DELIVERED ON: 20 August 2026 MEMBER: HEARD AT: O'Neill IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the Appellant is employed by the State of Queensland (Queensland Health) as a graduate nurse – where the Appellant is charged with criminal offences relating to alleged conduct at accommodation provided by Queensland Health – where the decision- maker determined to suspend the Appellant without remuneration – where the Appellant appeals the suspension without remuneration decision – where the appeal is dismissed – where the decision appealed against is confirmed LEGISLATION: Criminal Code Act 1899 (Qld) -- 1 of 18 -- 2 CASES: Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Sector Act 2022 (Qld) s 73, s 91, s 101, s 131 Directive 06/23: Suspension, cl 4.7, cl 7, cl 8 and cl 9 Australia Meat Holdings Pty Limited v Q- COMP [2007] ICQ 44 (2006); 186 QGIG 527 Baskin v State of Queensland (Department of Education) [2022] QIRC 349 BR v State of Queensland (No. 2) [2022] QIRC 154 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Colebrook v State of Queensland (Queensland Health) [2025] QIRC 53 Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209 George v Rockett (1990) 170 CLR 104 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Pope v Lawler [1996] FCA 1446 -- 2 of 18 -- 3 Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 126 Roche v State of Queensland (Queensland Ambulance) (No 2) [2024] QIRC 230 Reasons for Decision Introduction [1] Mr Austin Dunlop ('the Appellant') at the time relevant to this appeal was employed on a temporary basis as a Registered Graduate Nurse, Barcaldine Hospital, Central West Hospital and Health Service (CWHHS) ('the Respondent'). [2] On 25 March 2024, allegations of sexual assault were reported to CWHHS. The Respondent was informed that the Appellant had (allegedly) sexually assaulted a colleague in the Nurses’ Accommodation at Barcaldine Hospital on 22 March 2024. [3] By letter dated 26 March 2024, the Appellant was suspended from duty on normal remuneration until 10 April 2024. This was extended until 19 July 2024. [4] On 21 June 2024, the Appellant was charged by the Queensland Police Service ('QPS') on four counts, including two counts of unlawful and indecent assault, and one count of rape and one count of deprivation of personal liberty. [5] On 3 July 2024, O'Shea and Partners Lawyers emailed CWHHS on behalf of the Appellant, advising of the charges. [6] By letter dated 9 July 2024, the Appellant was invited to show cause as to why he should not be suspended without normal remuneration. The Appellant was afforded seven days from receipt of the letter to respond to the proposed change to his suspension. [7] By letter dated 17 July 2024, O'Shea and Partners Lawyers responded to the show cause notice on the Appellant's behalf, stating that Mr Dunlop is 'ready, willing and able to continue working' and would otherwise not oppose the continuation of his suspension on normal remuneration pending the finalisation of the criminal proceedings, noting the serious nature of the charges. [8] By letter dated 22 July 2024 ('the decision') from Ms Karen McLellan, General Manager Acute Health Service ('the Decision-Maker'), the Appellant was suspended without remuneration from the date he received the decision until 2 February 2025. [9] On 1 August 2024 the Appellant's nursing registration was suspended by the Health Ombudsman in response to the criminal charges. [10] On 12 August 2024 the Appellant filed his Appeal Notice in the Industrial Registry seeking a review of the decision to suspend him without remuneration. -- 3 of 18 -- 4 [11] The issue to be determined in this appeal is whether the decision dated 22 July 2024, to suspend the Appellant without remuneration from 22 July 2024, was fair and reasonable. [12] I am satisfied that the decision to suspend the Appellant without remuneration was fair and reasonable. [13] My reasons follow. Is the Appellant entitled to appeal? [14] Pursuant to s 131(1)(f) of the Public Sector Act 2022 (Qld) ('the PS Act') an appeal may be made against a suspension without pay decision. A suspension without pay decision is defined within s 129 of the PS Act, in the following terms: suspension without pay decision means a decision to suspend a public sector employee under section 101 without entitlement to normal remuneration. [15] I am satisfied that the suspension without pay decision is one that can be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal. [16] Section 564(3) of the IR Act requires an appeal to be lodged within 21 days after the day the decision appealed against is given. [17] The Appellant received the decision letter on 22 July 2024 and the Appeal Notice was filed in the Industrial Registry on 12 August 2024. I am satisfied that the appeal has been brought within the required time. Appeal Principles [18] Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.1 [19] A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the Decision-Maker.2 [20] The issue for my determination is whether the decision appealed against was fair and reasonable.3 1 Industrial Relations Act 2016 (Qld) s 562B(3). 2 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). 3 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA). -- 4 of 18 -- 5 What decisions can the Commission make? [21] Section 562C(1) 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. [22] The Appellant seeks that I set the decision aside and that he be suspended with normal remuneration. order that he return to duty, or alternative duties, with normal remuneration and with remuneration for any period of unpaid suspension, or that he be returned to suspension with normal remuneration, with any unpaid period being reimbursed to him by the Department.4 [23] The Respondent seeks that I confirm the decision appealed against as fair and reasonable pursuant to s 562C(1)(a) of the IR Act.5 Grounds of Appeal [24] Within his Appeal Notice filed on 12 August 2024, the Appellant outlined the following Grounds of Appeal: The decision being appealed is unfair and unreasonable. The decision does not properly take into consideration all of the relevant matters, including the following: 1. The allegations underlying the charges are denied and I will be strenuously defending the charges against me; 2. The allegations underlying the charges are both unproven and, at this stage, completely and utterly untested; 3. No indictment has been presented and it is possible that an indictment may never be presented against me; 4. My entitlement to the presumption of innocence; and 5. The financial impact of the decision upon me. Relevant Legislation and Directives [25] Section 101 of the PS Act provides for the suspension of a public sector employees as follows (emphasis added): 4 Appellant's Submissions filed 4 September 2024, [21. 5 Respondent's Submissions filed 25 September 2024, [17]. -- 5 of 18 -- 6 101 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. [26] 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 -- 6 of 18 -- 7 (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 [27] Clause 7 of the Public Sector Commission's Directive 06/23: Suspension ('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: (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. -- 7 of 18 -- 8 [28] 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 (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. The Allegations [29] The Allegations which formed the basis of the charges laid against the Appellant were as follows: On 21 June 2024, the Appellant was charged by the Queensland Police Service with four (4) offences, namely: -- 8 of 18 -- 9 i. That on 22 March 2024 at Barcaldine he allegedly unlawfully and indecently assaulted AB6 ii. That on 22 March 2024 at Barcaldine he allegedly attempted to commit rape upon AB iii. That on 22 March 2024 at Barcaldine he allegedly unlawfully and indecently assaulted AB iv. That between 20 March 2024 and 23 March 2024 at Barcaldine he allegedly deprived AB of her personal liberty. Proceedings in the Commission [30] A Directions Order was issued to the parties on 13 August 2024, inviting the provision of written submissions as follows: • Appellant's outline of submissions filed on 4 September 2024. • Respondent's outline of submissions filed on 25 September 2024. [31] The parties have not requested an oral hearing and therefore the matter will be decided on the papers pursuant to s 451(1) of the IR Act. [32] I have considered all of the submissions and attached evidence provided by the parties although they may not be specifically referred to in these reasons. Appellant Submissions [33] The Appellant does not oppose his suspension from duty with normal remuneration pending the finalisation of the criminal proceedings against him. [34] The Appellant notes that the allegations underlying the charges against him: a. are denied; and b. are unproven and, at this stage, completely untested. [35] He further submitted (at that time) that no indictment has been presented against him and it was possible that may never be presented against him. [36] The Appellant contends that he is entitled to the presumption of innocence, which is not overridden by the preferring of criminal charges. 6 Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 I have determined to use a pseudonym in place of the name of the complainant. I am satisfied that this is necessary to avoid potential harm to the complainant and that anonymising the complainant's name will not affect the essence of the decision. -- 9 of 18 -- 10 [37] The Appellant does not accept that it is proper and/or necessary in the public interest or otherwise to suspend him from duty without normal remuneration. [38] The submissions record the Appellant's concern that if his suspension from duty is without normal remuneration he will be unable to financially support himself and it will have such a serious impact upon him and upon his welfare and life generally both in the short and long term. The Appellant goes on to note that: • He has not had employment since the Decision. • Since the Decision, he has received 2 final payments from the Respondent totalling $3,799.59. • His only form of income since the Decision is money that he obtained from collecting cans for recycling. • He is concerned about his prospects of obtaining other meaningful employment. • He currently has savings of approximately $9,000. • He was living as a boarder and was not required to pay anything in that regard. • His living expenses were, at the time, approximately $250 per week and he has no dependants. Respondent Submissions [39] The Respondent contends that it is not in dispute that the Appellant was afforded procedural fairness before any decision was made to suspend him without pay. Further, it is clear from the decision that the Decision-Maker gave consideration to the Appellant's submissions as to why he should not be suspended without pay. [40] The Respondent contends that the decision to suspend the Appellant was reasonably open to Ms McLennan for the following reasons: • The Appellant has been charged with four serious, criminal offences. Although the offences occurred within employer provided accommodation, and the Appellant's alleged conduct involved a co-worker, CWHHS cannot progress its own investigation or disciplinary process while the criminal charges are outstanding. The criminal proceedings are outside CWHHS's jurisdiction, and CWHHS cannot predict when the criminal matter will be finalised. • The Suspension Directive expressly contemplates circumstances where an employee charged with criminal offences constituted grounds for a suspension without pay. The Decision-Maker reasoned that the fact that QPS had a reasonable suspicion that the Appellant had engaged in criminal activity justified her forming a reasonable belief that he may be liable to discipline. • The decision to suspend the Appellant without pay does not mean he has been denied the presumption of innocence. A suspension without pay decision is solely -- 10 of 18 -- 11 administrative in nature,7 and the determination that he may be liable for discipline under disciplinary law does not render him guilty of the alleged conduct. • The Respondent contends that it is uncontroversial that the conduct alleged is very serious. To adopt the wording of Commissioner Dwyer in Ehrlich v State of Queensland (Queensland Corrective Services),8 the allegations, if proven, are such that there is almost no conceivable scenario that would not conclude with the termination of the Appellant's employment. • Given the nature of the allegations against the Appellant, the Respondent contends that it is not appropriate for him to remain in the workplace (noting that the Appellant says he does not dispute a decision to suspend him). • CWHHS has an obligation to ensure the efficient, responsible and accountable use of public resources. In the circumstances where the Appellant is facing serious criminal charges in relation to alleged conduct against a co-worker, it was reasonably open to the Decision-Maker to determine it would not be in the public interest to continue to maintain his suspension on pay.9 • It was reasonably open to the Decision-Maker to conclude it was an inappropriate use of public money for the Appellant to remain on remuneration in light of the seriousness of the charges.10 The Respondent submits that in this regard, it is relevant to note the Appellant has been identified by name in a newspaper article.11 [41] The submissions go on to note that if the Appellant's employment is not terminated (noting no disciplinary process has been or is able to be commenced against him at this stage), he will receive the salary he would have received for the period of the suspension without pay. Conversely, if the Appellant remains suspended with pay, and his employment is later terminated, there is no ability for CWHHS to recover the same amount from the Appellant.12 [42] Regarding the financial impact on the Appellant, the Respondent notes that he is able to obtain other employment while he is suspended without pay.13 Any other adverse impact on the Appellant's welfare, is far outweighed by the relevant considerations under the Act and the Directive that were taken into account by the Decision-Maker.14 [43] The submission also notes that the Decision-Maker considered the Appellant's human rights when deciding to suspend him without pay. The Respondent contends that any limitation on the Appellant's human rights were justified, however, as it is in the public interest to ensure that governmental resources are being used appropriately, and to protect the reputation of the public sector. 7 BR v State of Queensland (No. 2) [2022] QIRC 154, [36] (Hartigan IC as Her Honour then was). 8 [2024] QIRC 209, [46] (Dwyer IC). 9 Baskin v State of Queensland (Department of Education) [2022] QIRC 349, [69] (Merrell DP). 10 Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 230, [49] (Pratt IC). 11 Respondent's submissions, Attachment 5: Gold Coast Bulletin, 20 August 2024. 12 Roche (No 2) (n 10), [50]. 13 Power v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 126, [32]. 14 Baskin v State of Queensland (Department of Education) [2022] QIRC 349, [70]. -- 11 of 18 -- 12 Consideration [44] I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at. [45] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)15 ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.16 [46] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.17 His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.18 [47] If the decision is flawed by conclusions that were not fairly and reasonably open to the Decision-Maker to reach, then that decision is prone to being overturned on appeal.19 [48] The starting point when considering the suspension of a public sector employee is s 101(1) of the PS Act which provides a discretion for a chief executive to suspend an employee where the chief executive 'reasonably believes' the employee is liable to discipline under a disciplinary law. [49] The requisite state of mind of 'reasonable belief' that must be held by the chief executive requires 'the existence of facts which are sufficient to induce that state of mind in a reasonable person.'20 [50] In Roche v State of Queensland (Queensland Ambulance) (No 2),21 ('Roche (No 2)'), Industrial Commissioner Pratt said in relation to the phrase "liable to discipline" as follows: [33] I am therefore of the view that "liable" should be construed broadly within the context of section 101(1)(a) of the PS Act. The legal consequence is discipline under a disciplinary law, and so the event triggering exposure to that legal consequence must be something that is 15 [2022] QIRC 16. 16 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 17 Colebourne (n 12) at [21]-[22] and [25]. 18 Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008. 19 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97, [195]-[200]. 20 Colebourne v State of Queensland (Queensland Public Service) [2022] QIRC 018, [28] (Merrell DP), citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 21 [2024] QIRC 230. -- 12 of 18 -- 13 rationally and logically connected to a potential finding of discipline under a disciplinary law. The scheme underpinning the power to suspend under section 101(1)(a) clearly contemplates that the event creating exposure to a discipline under a disciplinary act can be something as slight as an allegation of wrongdoing. Sections 101 and 91 provide for suspension occurring before any findings are made, or indeed any substantial investigation has occurred.22 [51] In the present case, the Appellant has been charged with extremely serious criminal charges which will inevitably result in a period of incarceration were he to be found guilty in relation to the charges. Other than denying the charges and maintaining that the charges against him are unproven and untested, the Appellant has not descended into any detail regarding his version as to what has occurred. [52] To be clear, no criticism is made of the Appellant because of this, it is understandable that he has sought to maintain his right to silence. [53] A somewhat similar scenario arose involving serious criminal charges in Payne v State of Queensland (Department of Education),23 where Industrial Commissioner Dwyer observed:24 [32] Having regard to the scheme, I now turn to consider whether its application to Mr Payne was unfair or unreasonable. The relevant starting point is the uncontroversial fact that Mr Payne has been charged with two offences which (he says) arise from the ‘intersection of a marital and neighbourhood dispute’. [33] Mr Payne has been understandably circumspect about the details giving rise to the charges. Not only would I assume he wishes to keep the matter private, but it is also imprudent for him to offer too much information while maintaining his right to silence in the criminal proceedings. [34] While he is entitled to exercise his right to silence and to his privacy, the lack of particulars about the events giving rise to the charges does nothing to assist in allaying the concerns reasonably held by the respondent and the decision maker. Mr Payne’s adamantly expressed personal views and assurances about the merit of the charges are not a panacea to the respondent’s concerns. [35] In the absence of particulars, it is inevitable (and reasonable) for a decision maker to contemplate the full spectrum of possibilities, both in respect to the type of conduct giving rise to the charges, and the possibility of a conviction. Given that one charge relates to allegations of ‘unlawful stalking, intimidation, harassment or abuse’ this description is more than sufficient to induce a reasonable belief in the mind of the decision maker as to Mr Payne’s liability to discipline if that charge is proven. … [43] It is not fanciful to consider that Mr Payne’s employment might be terminated if he is convicted of the charges. The conviction would be a matter required to be disclosed to the 22 Ibid, [33], (Pratt IC). 23 [2025] QIRC 198. 24 Ibid, [32]-[35], [43], (Dwyer IC). -- 13 of 18 -- 14 respondent and, to the extent it was a product of proceedings in open court, it plainly meets the definition of misconduct found at s 91(5)(b) of the PS Act. [54] In my view, given the circumstances that have led to the charges and the nature of the criminal charges, there was more than a sufficient basis in my opinion for the delegated Decision-Maker to form a reasonable belief that the Appellant may be liable to discipline under a disciplinary law. [55] As confirmed by Industrial Commissioner Pratt in Roche No 2, for the Appellant to be 'liable', all that is needed is a reasonable belief that there are allegations that exposed the Appellant to discipline under a disciplinary law.25 I am satisfied that it was fair and reasonable for the Decision-Maker to make this finding in light of the evidence available to her. [56] In the present matter there was an initial decision to suspend the Appellant with remuneration.26 In that decision the Decision-Maker considered reasonable alternatives to suspending the Appellant. Despite that earlier decision, it is still necessary for a subsequent decision to suspend without remuneration to comply with cl 9.2(e) of the Suspension Directive.27 [57] The decision letter dated 22 July 2024, in accordance with s 101(3) of the PS Act provided further consideration to the issue as to whether there were any reasonable alternatives to suspending the Appellant. In relation to that issue, the Decision-Maker concluded that alternative employment was not viable because all positions within the Health Service's facilities require a satisfactory criminal history check, and the current criminal charges meant that the Appellant could not satisfy those requirements. I am satisfied that this conclusion was open to the Decision-Maker. [58] I further note that the suspension of the Appellant's nursing registration on 1 August 2024 by the Health Ombudsman (as a consequence of the criminal charges) would be a further impediment to the Respondent's ability to provide alternative employment to the Appellant. [59] Given the nature of the charges brought against the Appellant, and the fact that the alleged conduct was directed to a co-worker, there would be duty of care concerns and the potential for psychosocial hazard risks if the Appellant was placed in a patient facing role or in a role working with co-workers. In my view to allow the Appellant to continue working in the role or to redeploy him to another work unit would create an 'unacceptable 25 Ibid, [34]. 26 Respondent's submissions (n 5), Attachment 1: Correspondence from Ms Karen McLellan dated 26 March 2024. 27 Colebrook v State of Queensland (Queensland Health) [2025] QIRC 53, [51], (Power IC). -- 14 of 18 -- 15 risk of harm to other employees'. In Payne v State of Queensland (Department of Education),28 Industrial Commissioner Dwyer observed: [36] In respect of the decision not to provide alternative duties, the same spectrum of possibilities require consideration. The question of 'reasonable alternatives available to the employee' in this case must take into account the suitability of Mr Payne to serve in any capacity with the respondent where e.g. it is possible that it may subsequently be found that he has engaged in the act of stalking or intimidating his neighbour or spouse. [39] Plainly, the broader legal duties of the respondent to students and staff demand a cautionary approach such that Mr Payne should not have contact with students. But there are equally scenarios where e.g. the very spectre of serious domestic disputation resulting in criminal charges could cause Mr Payne to trigger anxiety in co-workers. [40] It is ultimately unnecessary to attempt to illustrate reasons why Mr Payne's circumstances prevent reasonable alternatives to suspension. Suffice to say that the charges against him are not trivial and, in the absence of full particulars, it is reasonable for the decision maker to err on the side of caution in this instance until a more accurate evaluation of risk can be made if or when more details become available.29 [60] I am satisfied that the decision to not place the Appellant on alternative duties was fair and reasonable. [61] The Appellant has been provided with the opportunity to show cause in relation to the decision to suspend him without remuneration. The Appellant has also been provided (via the decision letter dated 22 July 2024) with a written notice setting out the reasons for the decision. [62] The decision letter also informed the Appellant of his appeal entitlements and the timeframe for lodging an appeal. The Appellant was also informed of relevant sources to obtain further information. Finally, the decision letter also informed the Appellant that he was suspended effective from 22 July 2024 until 2 February 2025 and that this suspension was without remuneration. [63] I am therefore satisfied that the Decision-Maker has complied with the requirements in clause 9.2(e) of the Suspension Directive and s 101(2) of the PS Act. [64] Section 101(4) of the PS Act permits the chief executive to suspend a public sector employee from duty without remuneration in the following circumstances: • the chief executive reasonably believes the employee is liable to discipline under a disciplinary law; and • the 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. 28 [2025] QIRC 198. 29 Ibid, [36], [39]-[40], (Dwyer IC). -- 15 of 18 -- 16 [65] In relation to the first element, I have confirmed above that I am satisfied that the delegated Decision-Maker had grounds for a reasonable belief that the Appellant was liable to discipline under a discipline law. [66] As noted above, the Suspension Directive provides at cl 8.2 that a decision to suspend an employee without normal remuneration in accordance with s 101(4)(b) is limited to the following circumstances: (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. (Emphasis added) [67] When used to link two expressions, the word "and" is usually considered to be used in a conjunctive sense and the word "or" is disjunctive.30 I am satisfied that the word or at the end of cl 8.2(a) of the Suspension Directive is being used in a disjunctive sense. That is, to suspend an employee without remuneration, the Decision-Maker has to be satisfied of only one of the matters listed in cl 8.2 (and not both of them). [68] In the present matter, the decision letter clearly addressed the matters raised in cl 8.2(a) of the Directive. The Decision-Maker noted as follows: As noted above, the allegations against you are the subject of serious criminal charges which are next due to be mentioned in Court on 28 August. The Health Service has been unable to progress any discipline process arising from the allegations against you whilst the criminal charges are on foot, in order to protect the integrity of the Police investigation and the criminal proceedings. I am satisfied therefore that there are factors which are not within the control of the agency, namely the outstanding criminal proceedings, which are preventing a timely conclusion of a discipline process. [69] I am satisfied that cl 8.2(a) of the Directive has been satisfied and that there were factors outside of the Respondent's control that would prevent a timely conclusion of the disciplinary process due to the ongoing criminal process. [70] Clause 8.2(b) of the Directive requires consideration of the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration. [71] The decision letter demonstrated that the Decision-Maker had regard to the financial impact on the Appellant but then went on to weigh the matters raised by the Appellant against the other matters that the Decision-Maker was required to give consideration to 30 See by way of example the decision of President Hall in Australia Meat Holdings Pty Limited v Q-COMP [2007] ICQ 44 (2006); 186 QGIG 527. -- 16 of 18 -- 17 in determining the broader public interest. I am satisfied that the Decision-Maker has given appropriate weight to the significant financial hardship that the Appellant may suffer from a decision to suspend without remuneration. [72] In relation to those other matters, the Decision-Maker noted that in considering the proposed suspension from duty without pay, the Decision-Maker had regard to: • The nature of the discipline that the Decision-Maker now considered the Appellant to be liable to; and • The public interest in ongoing payment to an employee in those circumstances. The Decision-Maker particularly had regard to the potential reputational damage to the department and the diminishing of public confidence in the Department's financial accountability, if the public were to become aware of the Appellant being suspended with remuneration. The Decision-Maker noted her statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. The Decision-Maker confirmed that she did not consider it an appropriate use of public monies for the Appellant to remain on suspension with remuneration for an as yet uncertain period of time until the criminal charges concluded. [73] In relation to the matters considered by the Decision-Maker, I am satisfied that these were appropriate considerations for the Decision-Maker to take into account in determining where the broader public interest lay. [74] I consider that the Department had an obligation to ensure the effective, efficient, economical and appropriate use of public resources. This included considering the effect upon the Department's finances while continuing suspension with remuneration in the circumstances. [75] I also consider it to be inherently likely that the Respondent would suffer reputational damage if the public were to become aware of the nature of the criminal charges faced by the Appellant and the factual basis of those allegations, and that the Appellant remained on a paid suspension with the Respondent having knowledge of those matters. I do not consider this risk to be at all remote. [76] I am satisfied that the Decision-Maker's decision to attribute considerable weight to the factors identified in paragraph [72] above, was not unreasonable in the circumstances. [77] I finally note that the Decision-Maker has also taken the Appellant's human rights into consideration and has determined that the limitation on the Appellant's human rights caused by the decision to suspend him without remuneration was demonstrably justified. The decision notes that this was because: -- 17 of 18 -- 18 • it is in the public interest to ensure that public resources are managed efficiently; and • the risk posed by employees remaining in the workplace while there are ongoing criminal proceedings is minimised by suspending them. [78] I am satisfied that this conclusion and approach was open to the Decision-Maker. Conclusion [79] For the reasons set out above, I am satisfied that the Decision-Maker in determining to suspend the Appellant without remuneration has complied with the requirements set out in s 101 of the PS Act and in the Suspension Directive. [80] I do not consider that the decision to suspend the Appellant without remuneration lacks justification in the circumstances set out above. Based on the evidence available to me, I am satisfied that the decision to suspend the Appellant without remuneration was fair and reasonable. Order [81] I make the following order: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 18 of 18 --