Legal - Innocence and the bottom line: QTU member’s pay reinstated
Queensland Teachers' Journal, Vol 128 No 1, 17 February 2023, page no. 27
Teachers are entitled to natural justice if the department seeks to suspend them without pay, but a recent decision by the QIRC highlights the QTU’s vital role in keeping the bureaucrats to account.
In the matter of Thomson v State of Queensland (Department of Education) [2022] QIRC 402, the Union supported its member in appealing a decision to suspend him without pay.
The case concerned an appeal made by a senior teacher against the decision of the Department of Education to extend his suspension without pay, despite his acquittal of criminal charges.
What happened?
On 16 January 2020, the teacher was notified that historical allegations had been made against him by a former student, and on 6 February 2020 he was suspended from his teaching duties with pay.
In June 2020, the teacher was charged and his blue card suspended. He was twice required to show cause to his employer as to why he should not be suspended without pay.
On 17 December 2021, with the criminal matter yet to be heard, the department suspended him without pay for a period of six months.
On 24 February 2022, more than two years since he was originally suspended, the teacher was declared “not guilty” in the criminal trial and he requested that his suspension be revoked accordingly.
But in June 2022, the department advised him of its decision to continue his suspension without pay for an additional period of six months. This was despite the fact that previous show cause letters had highlighted the pending criminal charges as a reason why his pay was to be stopped.
With Union assistance, the teacher appealed against the decision under the public service appeals provisions of the Public Service Act 2008 (Qld), on the grounds that the decision was unfair and unreasonable.
The appeal
The teacher submitted that the reasons given for the original suspension without pay had been negated by his acquittal of the criminal charges, and noted that the department had not yet contacted him regarding any pending investigations or disciplinary processes against him.
He argued that the only reason he remained on suspension was the department now needed to conduct its own “investigation” into the allegation, despite the fact he had already been acquitted by the courts.
The teacher further contended that the department had failed to consider reasonable alternatives to extending his suspension without pay, as is required by the Public Service’s Suspension Directive 16/20.
In response, the department argued that the decision to suspend the teacher without pay was not actually a “decision”, but an “administrative action extending the timeframe” of the original suspension decision of December 2021, meaning the QIRC did not have jurisdiction to hear the appeal.
The Commission rejected this argument and went on to assess whether the department’s decision was fair and reasonable in all the circumstances.
The decision on appeal
Industrial Commissioner McLennan found in favour of the teacher, accepting that the decision did not come about through a “fair, reasonable or fulsome consideration of the relevant criteria”. The Commissioner explained that a decision is unreasonable if “it lacks intelligent justification in all of the relevant circumstances”.
The Commissioner set out that the default position under the Public Service Act 2008 (Qld) is taken to be suspension with pay, unless “the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.”
The department had not put any specific allegations to the teacher, even after he had been acquitted for nearly six months. The Commissioner found that it was unreasonable for the department to consider that the nature of the discipline remained the same following his acquittal of the criminal charges, and on that basis the decision was procedurally unfair.
Further, the Commissioner was not satisfied that the department had satisfactorily considered and documented reasonable alternative arrangements to the suspension (as required by the directive).
The Commissioner also accepted that the department had failed to reconsider the public interest component (again as required by the directive) after the court proceedings had concluded.
The Commissioner substituted the decision to allow the employee to return to his suspension with pay, with back pay to the June 2022 decision.
Conclusion
The teacher involved in this matter faced historical allegations, which he denied and which he was acquitted of by the courts. After an almost three year ordeal, he was innocent, but facing financial ruin.
Bureaucracies often get it wrong. Absurd decisions are justified by complicated legislation and skilful legalese. The QTU is there to level the playing field, help members appeal bad decisions, and keep the bureaucrats on track.