In the recent decision of Tollesson v State of Queensland (Queensland Health) [2024] QIRC 69 (Tollesson), Industrial Commissioner Dwyer (Dwyer IC) of the Queensland Industrial Relations Commission (QIRC) found that a decision to suspend a public sector employee with pay may be appealed under section 131(1) of the Public Sector Act 2022 (Qld) (PS Act) because it is a 'fair treatment decision'.
Background
Dr Tollesson, employed as a Visiting Medical Officer and Neurosurgeon, performed a complex procedure on a patient who experienced a post-operative complication. A review of the clinical incident allegedly raised 'serious concerns' about his surgical decision making, resulting him in being suspended from duty with full remuneration pursuant to section 101(1)(a) of the PS Act. Dr Tolleson appealed this suspension decision.
What is the relevant law?
Before exercising the discretion to suspend an employee under section 101(1)a) of the PS Act, the chief executive of a public sector entity must 'reasonably believe' that the employee is 'liable to discipline'.
Section 131(1) of the PS Act lists the decisions which can be the subject of a public sector appeal, which include a 'suspension without pay decision' and a 'fair treatment decision'. The list does not expressly include a decision to suspend with pay nor are decisions to suspend without pay expressly excluded.
Did QIRC have jurisdiction?
Queensland Health raised a jurisdictional objection to Dr Tolleson's appeal, arguing that a decision to suspend with pay cannot be appealed because it is not listed in section 131(1) of the PS Act and as such, the legislature intended to exclude these decisions from appeal.
In rejecting the jurisdictional argument, Dwyer IC noted that the formation of a 'reasonable belief' will depend on the facts in each particular matter. An employee who disputes the facts may believe the suspension decision to be unfair and unreasonable, which brings it within the meaning of a 'fair treatment decision' as defined in section 129 of the PS Act.
Was the decision fair and reasonable?
The decision to suspend Dr Tolleson referred only to 'the information I have' and that it raised 'serious concerns'. The decision did not specify what information the decision-maker had been briefed with or the nature of the concerns held. Although procedural fairness is not required for a decision to suspend with pay, Dwyer IC held that a suspension decision should adequately record the facts on which the reasonable belief is formed. In this instance, it was found that there was insufficient factual information to demonstrate the basis on which the decision-maker formed a reasonable belief that Dr Tollesson is subject to disciplinary action.
On this basis, the decision was found to be unfair and unreasonable, and was returned for reconsideration.
Takeaways
It is now clear that paid suspensions can be subject to appeal as a 'fair treatment decision'.
Public sector employers should ensure that a decision to suspend an employee with pay under section 101(a) of the PS Act provides sufficient factual information to demonstrate the basis on which the decision maker has formed the reasonable belief that the employee is liable to discipline.
A simple reference to 'information' which raises 'serious concern' will not be sufficient.
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