QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 017
	
PARTIES:	Colebourne, Janette 
(Appellant)

v

State of Queensland (Queensland Police Service)
(Respondent)
	
CASE NO.:
	PSA/2021/413
	
PROCEEDING:
	Public Service Appeal - Fair treatment decision
	
DELIVERED ON:
	28 January 2022
	
HEARING DATE:	7 January 2022
	
MEMBER:

HEARD AT:	Merrell DP

Brisbane 
	
ORDERS:	Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

(a)	the decision appealed against is set aside; and

(b)	the matter is returned to the decision maker ('the original decision maker') with a copy of this decision on appeal; and
 
(c)	it is directed that: 

(i)	the matter of whether the appellant's secondment to the position of Injury Management Advisor in Safety and Wellbeing should be cancelled pursuant to s 120(4) of the Public Service Act 2008 ('the matter') be reconsidered;

(ii)	the reconsideration of the matter must:

A.	be determined by a person, other than the original decision maker, being a person delegated by the Commissioner of the Queensland Police Service ('the new decision maker') to reconsider the matter; and

B.	be determined by the new decision maker by complying with the principles of natural justice.
	
 CATCHWORDS:	PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - appellant employed by the State of Queensland in the Queensland Police Service in the position of Administration Officer at the Queensland Police Academy - appellant seconded to the higher classified position of Injury Management Advisor - on 7 September 2021, the Commissioner of the Queensland Police Service issued a direction mandating that certain employees, unless exempted, must receive a COVID-19 vaccine - appellant applied for an exemption from complying with the requirement to be vaccinated - decision not granting exemption - appellant suspended with remuneration - subsequent decision to cancel appellant's secondment to position of Injury Management Advisor - appellant, pursuant to ch 7 of the Public Service Act 2008, appealed against the decision to cancel appellant's secondment to position of acting Injury Management Advisor - whether decision to cancel appellant's secondment to position of Injury Management Advisor was fair and reasonable - decision appealed against was not fair and reasonable because natural justice was not observed - decision appealed against set aside and direction that the matter be reconsidered 

STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - whether the exercise of discretion pursuant to s 120(4) of the Public Service Act 2008 to cancel a secondment affected the appellant's interests such that the principles of natural justice had to be observed in its exercise - whether requirement to observe the principles of natural justice displaced by s 120 of the Public Service Act 2008 - requirement that the principles of natural justice had to be observed in the exercise of the discretion to cancel the appellant's secondment
	
LEGISLATION:	Industrial Relations Act 2016, s 562C 

Public Service Act 2008, s 120, s 137 and s 149C
	
CASES:	Burragubba v Minister for Natural Resources and Mines [2017] QCA 179; (2018) 2 Qd R 93

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44 

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
	
APPEARANCES:	Mr M. Thomas and Mr K. McKay of Together Queensland, Industrial Union of Employees as agent for the Appellant.

Mr G. Patterson and Ms A. Ireland of the State of Queensland (Queensland Police Service) for the Respondent.

Reasons for Decision

Introduction

[1]	This decision assumes familiarity with the earlier decision I have made in Colebourne v State of Queensland (Queensland Police Service) (No. 2) ('Colebourne No. 2'). This decision should be read with paragraphs [1] to [36] of Colebourne No. 2.

[2]	By decision dated 18 November 2021, Superintendent Terry Lawrence, Safety and Wellbeing, Queensland Police Service ('the Service') made a decision to cancel Ms Janette Colebourne's secondment to the higher classified position in which she had been acting since 20 February 2020, being that of Injury Management Advisor ('the secondment cancellation decision'). At that time, Ms Colebourne had been suspended with normal remuneration pursuant to s 137(1)(a) of the Public Service Act 2008 ('the PS Act'). 

[3]	By appeal notice filed on 1 December 2021, Ms Colebourne, pursuant to ch 7, pt 1 of the PS Act, appealed against the secondment cancellation decision.

[4]	The issue for my determination is whether the secondment cancellation decision was fair and reasonable. 

[5]	For the reasons given below, the secondment cancellation decision was not fair and reasonable. 

The relevant facts

[6]	It is not in dispute that Ms Colebourne's secondment to the position of Injury Management Advisor in Safety and Wellbeing, as from 20 February 2020, is due to end on 28 January 2022.

[7]	By written notice dated 20 October 2021, but received by Ms Colebourne on 26 October 2021, from Acting Assistant Commissioner Virginia Nelson of the Ethical Standards Command of the Service, Ms Colebourne was notified that:

•	a decision was made that, pursuant to s 137(1)(a) of the PS Act, she was suspended on normal remuneration because Acting Assistant Commissioner Nelson formed the view that the proper and efficient management of the Service might be prejudiced if she was not suspended ('the suspension with remuneration decision');

•	the suspension with remuneration decision would take effect immediately upon her receipt of Acting Assistant Commissioner Nelson's notice;

•	the suspension would remain in force until midnight 19 April 2022 unless cancelled earlier; and

•	she was required, within seven days of her receipt of Acting Assistant Commissioner Nelson's notice, to show cause why she should not be suspended without pay ('the show cause notice').

[8]	It is also not disputed that:

•	at some point about or soon after her receipt of Acting Assistant Commissioner Nelson's notice, Ms Colebourne accessed sick leave by the provision of a medical certificate and made an application for workers' compensation;

•	Ms Colebourne commenced sick leave on 6 October 2021;

•	Ms Colebourne ceased accessing sick leave as from 26 October 2021 because, as from that date, as a consequence of the suspension with remuneration decision, she was suspended with remuneration from that date;

•	the remuneration received by Ms Colebourne from 26 October 2021, was the rate of remuneration of which she was in receipt in the Injury Management Advisor position, classification AO5; and 

•	Ms Colebourne responded to the show cause notice on 2 November 2021.

[9]	On 18 November 2021, Ms Colebourne received a document headed 'STATEMENT OF REASONS FOR DECISION' signed by Superintendent Lawrence, the subject of which was the cancellation of Ms Colebourne's secondment to the Injury Management Advisor position. 

[10]	Because of the submissions made on behalf of Ms Colebourne about why the secondment cancellation decision was not fair and reasonable, it is necessary to reproduce most of that written decision.

[11]	In the secondment cancellation decision, Superintendent Lawrence relevantly stated:

Relevant legislation

10. 	Section 120(1)(a) of the PSA sets out as follows:

"120 Secondment
(1)	The chief executive of a department (the first department) may-
(a)	second a public service officer of the department within the first department; or …"

11.	Section 8 of the PSA defines "public service officer" as a chief executive, senior executive or officer of another type.

12.	The term "second" has been defined in Schedule 4 (Dictionary) of the PSA as temporarily employing a public service officer:
(a)	on different duties at the same classification level; or
(b)	at a higher classification level or lower classification level.

13.	Section 120(4) of the PSA prescribes that the chief executive of the department (who seconded the officer) may cancel the secondment at any time.

14.	Sections 33 and 36 read with Schedule 1 of the Acts Interpretation Act 1954 (Qld) establish that the Commissioner of Police is the chief executive of the Queensland Police Service ("QPS") for the purposes of the PSA.

Relevant information and material

15.	I have had regard to the following material relevant to the Decision:
(a) 	Ms Colebourne's leave history on Aurion;
(b) 	the Suspension Notice;
(c)	the position description for the role of Injury Management Advisor; and
(d)	injury management initiatives in line with the recommendations of the Injury Management Review Report 2020.

Decision-making framework

16.	Section 120 of the PSA provides the Commissioner of Police with the discretion to cancel a secondment.

17.	Pursuant to section 4.10 of the PSAA and the Human Resources Delegation and Approval Authorities, the Commissioner of Police has delegated her powers, functions and duties under section 120 of the PSA to me.

18.	The legislation does not qualify the exercise of the power to cancel a secondment under section 120 of the PSA. The discretion to cancel a secondment at any time is unfettered and to attempt to qualify or confine whatever the circumstances might be that lead to cancellation of a secondment would be to fetter that discretion.

19.	In the circumstances, I have considered your inability to perform the higher duties and the operational demand for the role to be filled as the relevant factors in deciding to cancel your secondment.

Findings and reasons

20.	I have considered and had regard to all of the material listed at paragraph 15 above and applied them to my decision-making process as follows.

21.	You are currently suspended and not at work, having been issued the Suspension Notice on 26 October 2021.

22.	In the circumstances, you are not currently performing the higher duties in the role of acting Injury Management Advisor.

23.	The operational needs of the QPS require the Safety and Wellbeing team to be staffed to provide and coordinate injury management services, including rehabilitation, case management, and proactive injury management initiatives.

24.	The role of Injury Management Advisor involves, inter alia, the following responsibilities:
(a)	providing injury management functions throughout the State in accordance with QPS policies and the Workers' Compensation and Rehabilitation Act 2003;
(b)	implementing and coordinating injury management strategies, designed to improve rehabilitation service delivery;
(c)	providing specialised injury management service for a range (in type and complexity) of physical and psychological injuries and illnesses;
(d)	working collaboratively to coordinate rehabilitation functions, including the establishment and maintenance of rehabilitation consultative processes and networks and the implementation of policies and procedures, which facilitate an optimal return to work for ill/injured members;
(e)	providing high quality advice, support and training to management, rehabilitation and return to work co-ordinators and members in relation to injury management, ensuring compliance with legislation and QPS governance and policy frameworks; 
(f)	facilitating the management of the workers compensation claims case management process, including regular liaison with WorkCover Queensland; and
(g) 	contributing to the analysis of statistical data, trends and impacts on QPS, including the provision of recommendations to address any identified risks, in consultation with QPS Health and Safety Advisors and allied health professionals.

25.	I am satisfied that you are unable to perform the requirements of the role whilst you are suspended and not at work.

26.	As the QPS requires someone to perform the role in your absence, the Safety and Wellbeing team will need to fill the role.

27.	As the team is unable to fill the role whilst you are reflected against the role as acting in the position, I have decided to cancel your secondment to allow the role to be filled.

28.	Further, you are not entitled to unjust enrichment by being paid for a role which you are not performing the duties of.

29.	For the above reasons, I have made the Decision to cancel your secondment to the role of acting Injury Management Advisor as at today's date.

Ms Colebourne's submissions

[12]	In written submissions, Ms Colebourne contended that:

•	the rules of natural justice applied in respect of Superintendent Lawrence making the secondment cancellation decision and she was denied natural justice which renders the secondment cancellation decision not fair and reasonable;

•	Superintendent Lawrence erred in fact when, in his decision, he stated that the Safety and Wellbeing Team, of which her Injury Management Advisor position was a member, was unable to fill the role whilst she was reflected against the role as acting in the position, such that Superintendent Lawrence took into account irrelevant considerations resulting in erroneous findings and mistaken conclusions being reached which rendered the decision unfair and unreasonable;

•	the conclusion by Superintendent Lawrence that she could not attend work and perform the duties of the position of Injury Management Advisor rendered the decision unfair and unreasonable because she had been suspended from duty;

•	the conclusion by Superintendent Lawrence that she would be unjustly enriched by being suspended at the rate of normal remuneration in her Injury Management Advisor position is an error and unreasonable because she is entitled to normal remuneration during her suspension;

•	the secondment cancellation decision amounts to disciplinary action because it results in a reduction in her remuneration and is therefore unfair and unreasonable;

•	the secondment cancellation decision amounts to a suspension not on normal remuneration which is contrary to the PS Act; and

•	the secondment cancellation decision seeks to frustrate the outcome of Ms Colebourne's appeal in Case No. PSA/2021/377, being Ms Colebourne's appeal against the decision not to grant her an exemption pursuant to Direction No. 12 on the basis of exceptional circumstances, because she would no longer be in the role of Injury Management Advisor, being the position in which Ms Colebourne was acting at the time she made her application for exemption.

[13]	Only some of these submissions were pressed in Ms Colebourne's oral submissions.

[14]	In oral submissions, Ms Colebourne submitted that the decision was not fair and reasonable because:

•	pursuant to s 137(1) of the PS Act, a public service employee who is liable to discipline under a disciplinary law may be suspended from duty and, pursuant to s 137(4), a public service employee so suspended is entitled to normal remuneration during the suspension and the dictionary to the PS Act defines the phrase 'normal remuneration' for a public service officer to mean '… all of the remuneration and other entitlements to which the employee is or would be entitled, as prescribed under a directive'; and

•	it was not reasonable for the Service to, in effect, cancel Ms Colebourne's higher duties, to give her no say in that matter and to frustrate her ability to be appointed to the position at the higher classification level under the relevant statutory provisions that confer discretion on chief executives of departments to appoint public service employees to positions at a higher classification level, in which they have been acting, for particular periods of time.

[15]	Ms Colebourne then submitted that:

•	every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred; and

•	because the discretion conferred on the chief executive, pursuant to s 120(4) of the PS Act, to cancel a secondment at any time provided no grounds upon which that discretion is to be exercised, the real object of the legislature was to leave scope for the decision maker, who is investigating the facts in considering the general purpose of the enactment, to give effect to his or her view of the justice of the case, however, that view must be reached by process of reasoning.

[16]	By way of conclusion, Ms Colebourne submitted that the reasons given by Superintendent Lawrence for cancelling the secondment were:

•	the suspension of her for failing to comply with Direction No. 12 in that she has not been vaccinated;

•	the need for the Safety and Wellbeing team to be staffed, the need to fill the role left absent by her because of her suspension and that the role was unable to be filled while she was reflected as acting in the position; and

•	her unjust enrichment by being suspended at the higher rate of remuneration in the Injury Management Advisor position when she was not performing the duties of that position.

[17]	Ms Colebourne submitted that those reasons were not fair, not reasonable and otherwise were fundamentally wrong.

The Service's submissions

[18]	The Service submitted that:

•	the reasons given by Superintendent Lawrence in the cancellation of the secondment were fair and reasonable and, on the evidence before him, it was reasonably open for him to make the secondment cancellation decision;

•	section 120(4) of the PS Act is clear and the plain meaning of the section conferred a discretion on the chief executive of the department (in this case the Commissioner of the Service or her properly authorised delegate) to cancel a secondment at any time;

•	there was no relevant directive, made pursuant to s 120(5) of the PS Act, with which the chief executive had to comply; 

•	having regard to the plain meaning of the PS Act, there was no requirement for natural justice to be observed; and

•	the decision to cancel the secondment was based on fair and reasonable grounds, including that because of her suspension she was unable to perform the role of the seconded position, and the need for a displaced employee to be deployed into Ms Colebourne's role as Injury Management Advisor.

The secondment cancellation decision was not fair and reasonable

Denial of natural justice

Was the decision maker required to comply with the principles of natural justice in making the secondment cancellation decision?

[19]	Section 120 of the PS Act provides:

120	Secondment

(1) 	The chief executive of a department (the first department) may-
(a) 	second a public service officer of the department within the first department; or
(b) 	with the approval of the chief executive of another department, second a public service officer of the other department to the first department.

(2) 	However, if the secondment is to a lower classification level it may be made only with the officer’s consent.

(3) 	Public notice of the secondment must be published in the gazette or in another way the chief executive of the first department considers appropriate if-
(a) 	notice of intention to make the secondment for the relevant duties was publicly notified; or
(b)	notice of the secondment of a person to perform the relevant duties is required under an Act to be publicly notified.

(4) 	The chief executive of the first department may cancel the secondment at any time.

(5) 	A directive may provide for any of the following about the secondment of a public service officer under this section-
(a) 	the circumstances in which a public service officer may be seconded;
(b) 	the terms that may apply to a secondment;
(c) 	administrative arrangements that may apply to a secondment;
(d) 	any other matter the commission chief executive considers relevant to a secondment.

(6) 	In making a decision to second a public service officer under this section, the chief executive of the first department must comply with any relevant directive under subsection (5).

[20]	Both parties approached the fact of Ms Colebourne acting in the higher classification position of Injury Management Advisor on the basis that she was seconded to that position, pursuant to s 120(1)(a) of the PS Act, from her substantive position.

[21]	In Kioa v West ('Kioa'), Mason J stated that the law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

[22]	More recently, it has been held that:

•	when a statute confers power to destroy or prejudice a person's rights or interests, the principles of natural justice regulate the exercise of that power;

•	all statutes are to be construed against the background of common law notions of justice and fairness and when a statute does not expressly require that the principles of natural justice be observed, a court construes the statute on the footing that the justice of the common law will supply the omission of the legislature; and

•	the observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise.

[23]	In Burragubba v Minister for Natural Resources and Mines, McMurdo JA summarised the approach to the question of whether, on the construction of a particular statute, the requirement to act with procedural fairness was displaced. His Honour stated:

[53] 	In Kioa v West, Mason J said that the requirement of procedural fairness could be displaced only by “a clear manifestation of a contrary statutory intention.” And, in Annetts v McCann, Mason CJ, Deane and McHugh JJ said that “the rules of natural justice regulate the exercise of [the power of a public official] unless they are excluded by plain words of necessary intendment.” As for the relevance of a procedural code for the disposition of an application for a mining lease, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, Gleeson CJ and Hayne J said, by reference to the legislative scheme in that case:

“[T]here is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice. ... The description of the provisions as a code of procedure is significant, but its significance should not be overstated.”

[24]	The issue is whether the decision to cancel Ms Colebourne's secondment to the position of Injury Management Advisor affected her rights, interests and legitimate expectations, such that there was a common law duty to act fairly, in the sense of according procedural fairness.

[25]	In Kioa, Brennan J stated that the presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. In Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ stated that they agreed with those observations of Brennan J in Kioa.

[26]	I do not have evidence before me which would allow me to determine whether Ms Colebourne had a legal right to remain seconded to the Injury Management Advisor position until the date the secondment was due to end, being 28 January 2022. 

[27]	However, it seems to me, given that Ms Colebourne had been seconded from her substantive position to the higher classification position of Injury Management Advisor, that she had been acting in that position since 20 February 2020 and that her secondment in that position was due to end on 28 January 2022, she had an interest which would be affected by a decision cancelling that secondment. 

[28]	I form this view because it is uncontested that:

•	Ms Colebourne's substantive position was classified AO3 and the Injury Management Advisor position was classified AO5, such that during the period of the secondment, Ms Colebourne was receiving higher remuneration at the classification AO5 level; and

•	the secondment was to continue until 28 January 2022.

[29]	In my opinion, Ms Colebourne had an interest in continuing to receive the higher remuneration of the Injury Management Advisor position until 28 January 2022. 

[30]	For this reason, my opinion is that, on the facts of the present case, the exercise of discretion pursuant to s 120(4) of the PS Act, namely, the discretion of the properly authorised delegate of the Commissioner of the Service to cancel a secondment at any time, conferred a statutory power that could destroy or prejudice Ms Colebourne's interest as I have described. As such, the principles of natural justice regulated the exercise of that power.

[31]	The next issue is whether or not there was a clear manifestation of a contrary statutory intention to displace the requirement to observe the principles of natural justice in making the decision to cancel Ms Colebourne's secondment pursuant to s 120(4) of the PS Act.

[32]	Clearly, there is nothing express in s 120 of the PS Act about whether or not the principles of natural justice have to be observed in making a decision to cancel a secondment under that section.

[33]	As the Service submitted, there has been no directive made under the provisions of the PS Act about the secondment of a public service officer under s 120 of the PS Act, which may have made reference to whether or not the principles of natural justice have to be observed in a decision to cancel a secondment.

[34]	In its submissions, the Service emphasised the fact that the discretion conferred on the chief executive of a department (in this case, the Commissioner of the Service or her properly authorised delegate) was to cancel a secondment '… at any time.' 

[35]	In written submissions, Ms Colebourne submitted that the fact that a secondment could be cancelled '… at any time' was not sufficient to displace the requirement to observe the principles of natural justice in her case. In support of that proposition Ms Colebourne referred to the decision of the High Court in Jarratt v Commissioner of Police for New South Wales ('Jarratt') where French CJ held that the power in s 51 of the Police Service Act 1990 (NSW), which conferred upon a public official power to remove an executive officer from office '… at any time,' given the breadth of that statutory power, was an argument for, rather than against, a conclusion that it was intended to be exercised fairly. French CJ held that there were no plain words of necessary intendment that ousted the obligation to remove an executive officer without a fair opportunity to be heard.

[36]	In my view, s 120 of the PS Act does not clearly manifest a statutory intention to displace the requirement to observe the principles of natural justice in the exercise of the discretion to cancel a secondment, where, on the facts of a given case, that requirement arises. There are two reasons for this.
 
[37]	First, consistently with the decision of French CJ in Jarratt, the fact that s 120(4) of the PS Act provides that a secondment may be cancelled '… at any time' is not sufficient to show a clear intention to displace the requirement to observe the principles of natural justice.

[38]	Secondly, there are no clear words in s 120 of the PS Act that clearly indicate that there is no requirement to observe the principles of natural justice. In this regard, the comparison may be made to s 137(10) of the PS Act which expressly provides that, in suspending a public service employee under that section, natural justice is not required if the person is entitled to normal remuneration during the suspension. There are no such or similar words used in s 120 of the PS Act.

[39]	There is no dispute that, prior to cancelling the secondment, Ms Colebourne was not given the opportunity to be heard about whether or not the secondment should be cancelled.

[40]	For this reason, Ms Colebourne was denied natural justice and, for that reason, my opinion is that the secondment cancellation decision was not fair and reasonable. 

[41]	My conclusion on this issue makes it unnecessary for me to consider the other submissions made by the parties. This is because Ms Colebourne should have been heard about whether or not her secondment should have been cancelled in the first place.

[42]	In terms of a remedy, the appropriate course is to set the decision aside, to return the matter to the decision maker with a copy of this decision, and direct that the question of whether or not the secondment should be cancelled be reconsidered with Ms Colebourne being given an opportunity to be heard.

[43]	Because Superintendent Lawrence has already made a decision on that issue, my opinion is that the reconsideration of whether or not the secondment should be cancelled should be undertaken by another decision maker. I will direct that another person, properly delegated by the Commissioner of the Service, should reconsider the question of whether or not the secondment should be cancelled.

Conclusion

[44]	For the reasons given, the secondment cancellation decision was not fair and reasonable.

Orders

[45]	I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

(a)	the decision appealed against is set aside; and

(b)	the matter is returned to the decision maker ('the original decision maker') with a copy of this decision on appeal; and
 
(c)	it is directed that: 

(i)	the matter of whether the appellant's secondment to the position of Injury Management Advisor in Safety and Wellbeing should be cancelled pursuant to s 120(4) of the Public Service Act 2008 ('the matter') be reconsidered;

(ii)	the reconsideration of the matter must:

A.	be determined by a person, other than the original decision maker, being a person delegated by the Commissioner of the Queensland Police Service ('the new decision maker') to reconsider the matter; and

B.	be determined by the new decision maker by complying with the principles of natural justice.