Hayes v State of Queensland

Public Sector Act 2022 (Qld) s 91, s 92, s 101

Alexander v State of Queensland (TAFE Queensland) [2020] QIRC 096

Yousif v Workers' Compensation Regulator [2017] ICQ 004

• [1] On 14 October 2024, Mr Matthew Hayes (the Appellant) filed an appeal of a Management Action Plan (MAP) issued on 4 October 2024 by Mr John Bosnjak, the Acting Assistant Commissioner, Emergency Management and Coordination Command of the Queensland Police Service (QPS; the Respondent).
• [2] Amongst other things, the MAP directed the Appellant to:
  1. perform alternative duties as directed by your direct line manager, AO7 Principal Watch Desk Coordinator (or higher delegate) from your place of residence for the period of six months unless this plan is revoked earlier.
  2. maintain a work from home diary log and present this diary to your direct line manager upon request.
  3. not attend the Kedron Emergency Services Complex 125 Kedron Park Rd, Kedron 4031 without your prior approval of your direct line manager.
  4. not use any QPS communication platform other than for your directed alternative duties.
  5. not have contact with members of the Watch Desk (with the exception of your direct line manager or higher delegate) including anyone currently undertaking training and future Watch Desk training groups.
  6. keep the matters relating to this Management Plan confidential unless:

b) your direct line manager is advised before the disclosure of such matters.

• [3] In the Appeal notice, the Appellant indicated he was appealing a "disciplinary decision" and requested that the Commission stay the MAP.
• [4] On 16 October 2024, I informed the parties through the Industrial Registry that I would call a mention to understand on what basis the QIRC can stay and hear an appeal of the decision and directions contained within the MAP.
• [5] The mention proceeded on 21 October 2024. The Appellant submitted that "the direction to work from home fundamentally constitutes a transfer or redeployment":

APPELLANT: Thank you, Commissioner. So my contention is that the MAP is a disciplinary decision, so by its very nature and by the timeline of events that have occurred - that the conditions imposed in the MAP are effectively summary discipline, so I've been found guilty of something and thus been disciplined for it, even though it's not been determined a disciplinary decision. So I form that view on the basis - I have arguments to make if - if now is appropriate?

APPELLANT: So under clause 92(1) of the Public Sector Act - so subsection (c) is - I contend that the direction to work from home fundamentally constitutes a transfer or redeployment. Subsection (b) of that clause is that I am an operations officer, and I conduct operational duties, and the duties that I have been given while working from home are administrative duties, and this then constitutes a reduction of classification level and a consequential change of duties under that clause. And then, finally, I can demonstrate that working from home under the conditions that have imposed - that are imposed under the MAP constitute about a $1400 per fortnight detriment to me monetarily, so that would be clause 92.1(f). Thank you, ma'am.[1]

• [6] During the mention, I advised the parties that the Commission does not have jurisdiction to hear this matter, by virtue of s 9.1A of the Police Service Administration Act 1990 which provides:

9.1A Relationship with Industrial Relations Act 2016

The Industrial Court and the Industrial Relations Commission do not have jurisdiction in relation to a matter that has been, is being, or may be reviewed under this part even though it may be, or be about, or arise out of, an industrial matter within the meaning of the Industrial Relations Act 2016.

• [7] The Appellant submitted that the QIRC does have jurisdiction to hear the matter, on the basis that, in his view, the MAP was imposed under the Public Sector Act 2022 (Qld) (PS Act):

APPELLANT: So the section under the Police Service Administration Act - you're right. It's the view of myself and the union that those sections apply to officers, and on the basis of what section 101 in the Public Sector Act, under suspension, the directions that it says prior to suspension or recommends prior to suspension are very similar to the MAP, so it's our view that that's been imposed under the Public Sector Act, which is why we feel that QIRC does have jurisdiction in the matter. As for the matter of suspension with or without pay, I'm aware of all of that, and I do accept - and if the matter was to be moved to a suspension matter, then I would take the necessary pathways to appeal that as well.[2]

• [8] On the basis that the Appellant sought to press the matter, I issued a Directions Order requiring submissions as to whether or not the QIRC should hear the appeal under section 562A(3)(b) of the Industrial Relations Act 2016 (Qld) (IR Act).
• [9] That is the question to be determined in this decision.

562A Commission may decide not to hear particular public service appeals

(1) The commission may decide it will only hear an appeal against a directive decision, a fair treatment decision or a transfer decision under the Public Sector Act 2022 if the commission is satisfied -

(a) the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including a directive made under section 110 of that Act; and

(b) for a fair treatment decision under the Public Sector Act 2022 - it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).

(2) The commission may decide it will only hear an appeal against a promotion decision under the Public Sector Act 2022 if the commission is satisfied, by oral or written submissions, that the appellant has an arguable case for the appeal.

(3) The commission may decide it will not hear a public service appeal against a decision if -

(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal -

(iii) should not be heard for another compelling reason.

• [11] In accordance with the Directions Order issued on 21 October 2024, the parties filed written submissions. I have carefully considered all submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. I have instead referred to the key arguments within my consideration.

• [12] The Appellant submitted that the MAP direction to "perform alternative duties ... from [my] place of residence for the period of six months" meets the definition of disciplinary action of "transfer or redeployment" under the PS Act.
• [13] The Respondent submitted that the Appellant's appeal is frivolous and misconceived as a MAP is not a disciplinary matter, it is local management action taken in accordance with the QPS Ethical Standards Command Complaint Resolution Guidelines (the Guideline). They submit that the Appellant has not been transferred or redeployed, nor has any change been made to the Appellant's renumeration - permanently or temporarily.
• [14] I do not accept the Appellant's submission that the MAP falls within the scope of being disciplinary action.
• [15] Section 92 of the PS Act provides:

(1) Disciplinary action is any action relating to employment, including, for example, any of the following actions -

(b) reduction of classification level and a consequential change of duties;

(d) forfeiture or deferment of a remuneration increment or increase;

(g) if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;

• [16] The PS Act defines a "transfer" of a public sector employee, to "employ the employee at the same classification level, on different duties or at a different location, other than temporarily".[3] The MAP that has been put in place, directs the Appellant to work remotely only for a period of six months. The PS Act defines "redeploy" as employing "the employee at a lower classification level, whether or not on different duties or at a different location, other than temporarily".[4] The Appellant is not employed at a lower classification level and is still employed in the OO4 classification. Further, the direction to work remotely again only is in place for six months.
• [17] While the Appellant has argued he is receiving less income due to his inability to perform overtime hours in a work from home arrangement, I do not consider that it meets the definition of the disciplinary action of "imposition of a monetary penalty" under s 92(1)(f) of the PS Act. Overtime is not a guaranteed condition of employment. The Ministerial Directive, Hours Overtime and Excess Travel cl 7.2 and the QPS Management Support Manual s 2.2.17 explains that overtime is at the discretion of the employer on a case-by-case basis and is not a standing entitlement.
• [18] The Respondent submitted that the QPS elected to take management action by imposing reasonable alternative duties under the MAP, in lieu of suspension. Section 101(3) of the PS Act prescribes that the QPS must consider reasonable alternatives, including alternative duties outside an established role. The Respondent submitted that the Assistant Commissioner contemplated suspension after forming the reasonable belief that the Appellant was liable to discipline under a disciplinary law and rather than suspending the Appellant, appropriately considered and implemented direction for the Appellant to undertake alternative duties. The direction to undertake those alternative duties does not constitute disciplinary action.
• [19] I would also point out that s 91 of the PS Act provides that a chief executive may only discipline an employee if they are reasonably satisfied a ground for discipline arises, not that they 'reasonably believe' the Appellant is liable to discipline under a disciplinary law. QPS has not made any disciplinary findings, nor purported to have made any disciplinary findings. The MAP was imposed to allow the Respondent to conduct further investigations in accordance with their internal Guideline.
• [20] The MAP directed the Appellant to work from home, performing duties within the scope of his role and under the supervision of his line manager. While the MAP prevents the Appellant from completing the full range of duties normally undertaken in his role, the Respondent submits that the duties which have been assigned to the Appellant fall within his position description.
• [21] In reviewing the "Watch Desk Supervisor" position description, I observe that while one of the core capabilities to "lead and manage the 24/7 Watch Desk team to ensure that warning and other emergency information that affect the Queensland community are coordinated, assessed, and reported ..." may not be able to occur in a work from home arrangement, the others seems to be capable of being effectively performed remotely.
• [22] The Appellant submitted that:
  1. While the MAP seems to imply that all directions therein are derived from clause 4.9 of the Police Service Administration Act 1990, I contend that the authority conferred by that clause is only that the Police Commissioner can make directions to staff, not that the Police Service Administration Act 1990 confers the authority to discipline staff.
  2. While parts 7, 7A, 8, and 9 of the Police Service Administration Act 1990 deal with the discipline of officers (i.e. Sworn Police Officers and Special Constables), nowhere throughout the Police Service Administration Act 1990 does it deal with or confer any specific authority to discipline staff.
  3. Clause 2.5 (1) (b) (ii) of the Police Service Administration Act 1990 provides the staff member definition that applies in my case: "(1) Staff members are - ... (b) persons appointed as staff members by the commissioner under - ... (ii) the Public Sector Act 2022, chapter 4, part 2..."
  4. As I am employed under the Public Sector Act 2022, I contend that the authority to discipline me is derived from Chapter 3 Part 8 of that Act.
• [23] As I have determined above, I do not consider the MAP to be a form of disciplinary action. The authority to discipline the Appellant is derived from ch 3 pt 8 of the PS Act, but that has not occurred through the issuing of the MAP. No disciplinary findings have been made and consequently, a disciplinary decision has not been issued. The MAP is a direction issued by the Commissioner of Police in accordance with ss 4.8 and 4.9 of the Police Service Administration Act 1990 (Qld).
• [24] The Appellant submitted that s 4.11 of the QPS Ethical Standards Command Complaint Resolution Guidelines states "Staff members: note a MAP should not be used to temporarily redeploy a staff member, to mitigate risk. If redeployment is required, a written direction should be given. A MAP is only to be used to provide development and learning objectives for staff members - they are not for risk management action."
• [25] With respect to the Appellant's argument that a MAP should not be used to temporarily to redeploy a staff member, to mitigate risk in accordance with the Guideline, I will not delve into that argument, as that goes to the question of whether or not the decision was fair and reasonable. The question subject of this decision is simply whether the Commission has jurisdiction to hear the appeal.
• [26] In circumstances where the Commission does not have such jurisdiction, it would be inappropriate for me to comment on whether the MAP was or was not issued in accordance with the relevant Guideline.
• [27] The Appellant submitted that should the Commission not consider the MAP to be a disciplinary action, then the Commission does have jurisdiction to hear the appeal as a "fair treatment decision" and seeks to press his matter through that pathway:
  1. In the event that the Commission disagrees with my contentions above relating to a discipline decision, I respectfully submit that the Commission does have the jurisdiction to hear a matter as a "fair treatment decision" appeal as per section 131(d) of the Public Sector Act 2022.
  2. Section 451 of the Industrial Relations Act 2016 gives the Commission the power to do all things necessary or convenient for the performance of its functions. I respectfully contend that the Commission would have discretion to hear the matter as a fair treatment decision appeal in order to resolve the matter efficiently.
  3. In accordance with clause 9.1 of the Public Sector Commission's Individual employee grievances (Directive 11/20) I lodged a stage 3 grievance in relation to the MAP process with the Police Commissioner on 14 Oct 2024 by email (attachment 02). I received the outcome of an internal review which concluded on 28 Oct 2024 (attachment 03).
  4. That internal review concluded that there was no wrongdoing on the part of QPS; however, the final paragraph does state that "the Queensland Police Service acknowledges that you have exhausted all internal grievance procedures and may lodge in the Queensland Industrial Relations Commission."
  5. I respectfully submit that, as the matter subject to the internal review is identical to the matter subject to matter PSA/2024/165, the matter could be handled as a "fair treatment decision" appeal if the Commission concludes that it does not have jurisdiction to hear the matter as a "discipline decision".

23. I defer to the QIRC as to the appropriate course of action.

• [28] The timeframe to file an appeal against a decision is 21 days. The internal review decision was given to the Appellant on 28 October 2024. It was open to the Appellant to file an Appeal of the internal review decision within 21 days of 28 October 2024 - that would have been by 18 November 2024.
• [29] The Appellant did not file an appeal of the internal review decision, nor seek an extension of time to file an appeal of the internal review decision. It is not open for the Appellant to seek to agitate a review of that decision through this appeal against the MAP.
• [30] Further, it is not open for the Appellant to shift the goal posts of his appeal of the MAP, to 'alternatively' submit that he is appealing a "fair treatment decision" if his arguments that it is a disciplinary decision fail.
• [31] While s 451 of the IR Act is a discretionary power of the Commission to do all things necessary and convenient for the performance of its functions, that does not mean that it should be used to allow the Appellant to air his grievances about 'discipline matters' and wait to see what the Commission determines about those arguments, to then indicate that if those arguments are not accepted, he essentially seeks leave to amend his Appeal notice.
• [32] In that regard, I find my observations in Alexander v State of Queensland (TAFE Queensland)[5] to be relevant (citations omitted):

[15] ... S 451 is a discretionary power vested with the Commission. It does not obviate the requirement of a party to state their case, including the remedies they seek. That process of explaining one's case, including the outcome sought, is required to facilitate the orderly and fair conduct of proceedings.

[16] It is impermissible, and a distinct unfairness to a respondent party, to simply air a grievance and then wait to see what the Commission may provide. That is particularly true where the party bringing the proceeding has been directed to set out precisely what remedy he seeks, because such an outcome may not be available. I accept that Mr Alexander was self-represented, yet that does not alter the parties' obligations.

[17] In that regard, Justice Martin has said (emphasis added, citations removed):

In Blackwood v Adams, I referred to Statements of Stressors as setting "the boundaries of the application". More recently, in Carlton v Blackwood I said:

"An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment."

A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party's case and, if an admission is made, to rely on that admission.

It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission's power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.

• [33] I am not persuaded by the arguments raised by the Appellant that the Commission has jurisdiction to hear the Appellant's appeal of the MAP.

1. Pursuant to s 562A(3) of the Industrial Relations Act 2016, the appeal will not be heard.

[1] T 1-2, lines 37-42; T 1-3, lines 4-11.

[3] Public Sector Act 2022 (Qld) sch 2.

[5] [2020] QIRC 096, citing Yousif v Workers' Compensation Regulator [2017] ICQ 004, 4-5.