Department educated on presumption of innocence
Queensland Teachers' Journal, Vol 128, 25 August 2023, page no.27
A teacher’s successful appeal to the Queensland Industrial Relations Commission has resulted in a vital win for all QTU members and also delivered a timely refresher course on the presumption of innocence to the department.
Since changes to the then Public Service Act 2008 (now Public Sector Act 2022 (PSA)) commenced in 2020, the Department of Education has progressively sought to suspend members without remuneration when they have been charged with a criminal offence.
Despite several successful appeals (supported by the QTU), the practice of cutting off teachers’ pay during one of the most distressing periods in their lives has continued in certain circumstances. But the recent win could be a decisive battle in the war against these suspensions.
What happened?
A teacher was alleged to have engaged in inappropriate conduct with a student. He was charged by the Queensland Police Service, leading the Department of Education to suspend him from work without pay. Importantly, this suspension occurred well before trial, completely disregarding his right to the presumption of innocence.
The central question for the Commission was whether the department’s decision to suspend without pay was ‘fair and reasonable’. Industrial Commissioner McLennan had to examine the meaning of “reasonable belief” in the context of the Public Sector Act 2022 (Qld). According to the Act, a public sector employee can be suspended, without remuneration, if the chief executive “reasonably believes” that the worker is liable for disciplinary action.
The Commissioner highlighted a crucial difference between “reasonable belief” and “reasonable suspicion” (which is the standard police meet before charges are laid) and found that while “reasonable suspicion” requires a credible reason to suspect wrongdoing, “reasonable belief” demands a higher standard of proof, being a well-founded conviction based on a thorough assessment of evidence.
The Commissioner determined that the decision to suspend the teacher without pay was made prematurely, solely on the “reasonable suspicion” of the police, rather than the “reasonable belief” required by the PSA. Consequently, the teacher’s right to be heard and the principles of natural justice had been ignored. The Commissioner found that he was entitled to the presumption of innocence until a guilty verdict was determined or he pleaded guilty to the charge. Since neither of these conditions had been met, the suspension without pay was deemed unfair.
The Commissioner dismissed the department’s submissions about “the perception of the public” if the teacher was suspended with pay, emphasising that he, like any other person, was still entitled to the presumption of innocence.
The department’s premature decision had left the teacher and his family without income, putting him in dire financial straits and impacting his ability to support his family. The Commissioner found that fairness and reasonability dictated that the department should have placed greater weight on the financial impact of suspending the teacher without pay, given he would struggle to find alternative employment while dealing with a criminal charge.
Ultimately, the Commissioner ordered for the teacher to be returned to suspension on normal remuneration, and for him to be reimbursed for the period in which he was suspended without pay.
While it is unfortunate that core principles of justice need to be explained in this forum, it is hoped the decision, along with the decisions of other QTU member appeals (which were heavily referenced in Commissioner McLennan’s decision), will prompt a change of policy (if not a change of heart) within the department.
The decision serves as an essential reminder that teachers, like any other workers, are entitled to the presumption of innocence and to receive a proper opportunity to be heard before punitive action is taken against them.
If you find yourself in a similar situation, remember:
- in case of serious allegations, contact your Union Representative immediately to ensure your rights are protected
- you have the right to be presumed innocent until proven guilty beyond a reasonable doubt
- decisions made regarding your employment should be based on a reasonable belief supported by evidence
- reach out to your Union Representative if you need help advocating for yourself, including if you need to be heard and present your side of the story before any adverse actions are taken
- seek the support and guidance of your Union to navigate the complexities of legal proceedings and safeguard your rights as a teacher.