Payne v State of Queensland [2025] QIRC 198 | Case summary

Queensland Industrial Relations Commission|2025-07-31

PUBLIC SECTOR ¾ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - Appellant charged with 'Unlawful stalking, intimidation, harassment or abuse' - Appellant charged with 'Commit public nuisance' - Appellant notifies Respondent of charges - Respondent alleges Appellant engaged in conduct in private capacity that reflected seriously and adversely on public sector - where Appellant suspended on normal remuneration - Appellant asked to show cause why suspension should not be without normal remuneration - Appellant suspended without remuneration - basis for suspension - compliance with directive not synonymous with 'fair and reasonable' - no control over criminal proceedings - suspension without remuneration fair and reasonable

AB v State of Queensland (Department of Education) [2024] QIRC 049

Buckton v State of Queensland (Queensland Health) [2025] QIRC 065

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209

Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 230

[1] Mr Gary Payne is employed by the Department of Education ('the respondent') as a Teacher at Kepnock State High School ('KSHS'). He has been employed by the respondent since 2012.

[2] On 1 April 2025 the Principal of KSHS received complaints from two individuals regarding the conduct of Mr Payne.

[3] On 6 April 2025 Mr Payne was charged by police with the following offences ('the charges'):

Unlawful stalking, intimidation, harassment or abuse pursuant to ss 359B, 359E(1) and 359(3)(a) of the Criminal Code Act 1899 (Qld); and

Committing a public nuisance pursuant to s 6(1) of the Summary Offences Act 2005 (Qld).

[4] The charges were mentioned before the Magistrates Court in Bundaberg on 8 June 2025. Mr Payne has indicated his intent to defend the charges.

[5] Mr Payne notified the respondent of the charges in accordance with his obligations.[1]

[6] On 22 April 2022, in accordance with the terms of s 101(1) and (3) of the Public Sector Act 2022 (Qld) ('the PS Act'), the respondent issued a decision advising Mr Payne that:

They reasonably believed that Mr Payne was liable to discipline; and

There were no reasonable alternatives to suspension in accordance with s 101(3) of the PS Act; and

Mr Payne was to be suspended on normal remuneration in accordance with s 101(1)(a) of the PS Act.

[7] In addition to these matters, the decision maker also directed Mr Payne to show cause why he should not be suspended without normal remuneration in accordance with the terms of s 101(4) of the PS Act. Mr Payne was provided with a period of seven days to respond to this direction.

[8] Mr Payne responded to the show cause direction on 30 April 2025. The relevant details of his response are discussed later in these reasons.

[9] On 21 May 2025 the decision maker wrote to Mr Payne and advised that upon consideration of his response, he was to be suspended without normal remuneration until 17 October 2025 ('the decision').

[10] Mr Payne now seeks a review of the decision.

[11] A Public Sector Appeal is conducted by way of a review of a decision. They are not a fresh hearing on the merits of the matter.

[12] Section 562B of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that:

562B Public service appeal to commission is by way of review

(1) This section applies to a public service appeal made to the commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

[13] Section s 562C of the IR Act relevantly provides that:

562C Public service appeals - decision on appeal

(1) In deciding a public service appeal, the commission may -

(c) for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

[14] The parties were directed to provide submissions in respect of the appeal and did so in writing. I have considered those submissions in full. I do not intend to restate those submissions in these reasons. The salient portions of those submissions will be addressed in my consideration that follows.

[15] Section 101(4) of the PS Act establishes a rather unique discretion for the relevant decision maker. While circumstances of legitimate suspension without remuneration are all but unheard of in private sector employment, the PS Act establishes a pathway to suspension without remuneration for appropriate cases.

[16] Understanding whether the decision impacting on Mr Payne is unfair and unreasonable requires an understanding of the scheme for suspension established by the PS Act.

[17] The starting point for a decision to suspend without remuneration is a decision to suspend with remuneration pursuant to s 101(1)(a) of the PS Act. That is to say, before the discretion allowed by s 101(4) of the PS Act can be exercised, a decision maker must have first exercised a discretion to suspend pursuant to s 101(1) of the PS Act.

[18] The basis for a suspension with remuneration must be founded in a reasonable belief that the subject employee is liable to discipline. The term 'reasonable belief' is a familiar and often discussed legislative term. In the context of s 101(1) of the PS Act it has been held to require the 'existence of facts sufficient to induce that state of mind in a reasonable person'.[2]

[19] In Roche v State of Queensland (Queensland Ambulance Service) (No. 2)[3] Industrial Commissioner Pratt held:

The threshold for enlivening the power to suspend is different to that for imposing discipline. Relevantly, under to section 101(1), in order to suspend, the relevant chief executive need not be satisfied that the employee has actually engaged in misconduct. Rather, they only need to hold a reasonable belief that they have engaged in conduct, which if proven, would constitute misconduct.

I am therefore of the view that "liable" should be construed broadly within the context of section 101(1)(a) of the PS Act. The legal consequence is discipline under a disciplinary law, and so the event triggering exposure to that legal consequence must be something that is rationally and logically connected to a potential finding of discipline under a disciplinary law. The scheme underpinning the power to suspend under section 101(1)(a) clearly contemplates that the event creating exposure to a discipline under a disciplinary act can be something as slight as an allegation of wrongdoing. Sections 101 and 91 provide for suspension occurring before any findings are made, or indeed any substantial investigation has occurred.

[20] I am in complete agreement with the conclusion of Industrial Commissioner Pratt.

[21] The discretion conferred by s 101(1) of the PS Act is fettered by s 101(3) of the PS Act. Section 101(3) of the PS Act compels a decision maker to consider 'all reasonable alternatives available to the employee' before suspending them.

[22] In Buckton v State of Queensland (Queensland Health)[4] I held:

The language of s 101(3) of the Act requires the chief executive to consider 'all reasonable alternatives available to the employee'. It does not invite a consideration of reasonable alternatives in a general sense. It is a consideration that requires specific contemplation of what is reasonably available to the employee. It therefore compels a consideration of the personal circumstances of the employee who is the subject of the direction.

[23] Such a personalised approach will invariably produce limitations on what may or may not be available in the way of alternative employment. Each consideration of alternative duties by a decision maker will turn on the unique circumstances of the subject employee.

[24] Only after a decision maker has considered reasonable alternatives to suspension, and only after a decision maker has determined to suspend an employee on normal remuneration can a decision maker then turn their mind to the exercise of the discretion available under s 101(4) of the PS Act.

[25] As already noted, s 101(4) of the PS Act places two pre-conditions on the exercise of a discretion to suspend without normal remuneration. The first is the making of a decision to suspend pursuant to s 101(1)(a) of the PS Act. The second is:[5]

The employee's chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.

[26] The language of s 101(4)(b) of the PS Act gives a very broad discretion to a decision maker. The PS Act provides that the exercise of the discretion is informed solely by whether the decision maker considers it 'not appropriate' to continue normal remuneration having regard to the discipline they 'believe' an employee is liable to. The discretion is not limited by e.g. a consideration of 'all the circumstances' or a 'reasonable belief' as to what discipline the employee might be liable to.

[27] The only guidance for the exercise of the discretion beyond the terms of the PS Act is found in the Suspension Directive 06/23 ('the Directive').

[28] While the Directive seeks to define the matters informing the discretion, the guidance afforded by Clause 8.2 of the Directive still reveals a very broad discretion. In particular, Clause 8.2(b) of the Directive introduces a consideration of the balance between the personal impact on an affected employee and the public interest.

[29] Overall, provided there is compliance with the more stringent conditions of ss 101(1)(a) and 101(3) of the PS Act, a decision to suspend without normal remuneration is left to the relatively broad discretion of a decision maker.

[30] It should be noted that the exercise of a discretion to suspend an employee charged (but not convicted) of e.g. criminal offences without normal remuneration has the superficial appearance of a pre-determination of guilt. Given that the presumption of innocence is a fundamental tenet of the criminal justice system, the sense of injustice felt by an affected employee is understandable.
[31] However, the application of less robust standards in civil litigation is a long established and accepted practice e.g. the different standards of proof. That is not to say that a decision maker exercising a discretion pursuant to s 101(4) of the PS Act may conclude that a subject employee is guilty of offences with which they have only been charged. But, unlike stakeholders in criminal proceedings, for the purposes of considering the exercise of their discretion, a decision maker plainly has to be able to anticipate the possibility of a conviction when considering what discipline might be imposed or when balancing matters of public interest.

[32] Having regard to the scheme, I now turn to consider whether its application to Mr Payne was unfair or unreasonable. The relevant starting point is the uncontroversial fact that Mr Payne has been charged with two offences which (he says) arise from the 'intersection of a marital and neighbourhood dispute'.

[33] Mr Payne has been understandably circumspect about the details giving rise to the charges. Not only would I assume he wishes to keep the matter private, but it is also imprudent for him to offer too much information while maintaining his right to silence in the criminal proceedings.

[34] While he is entitled to exercise his right to silence and to his privacy, the lack of particulars about the events giving rise to the charges does nothing to assist in allaying the concerns reasonably held by the respondent and the decision maker. Mr Payne's adamantly expressed personal views and assurances about the merit of the charges are not a panacea to the respondent's concerns.

[35] In the absence of particulars, it is inevitable (and reasonable) for a decision maker to contemplate the full spectrum of possibilities, both in respect to the type of conduct giving rise to the charges, and the possibility of a conviction. Given that one charge relates to allegations of 'unlawful stalking, intimidation, harassment or abuse' this description is more than sufficient to induce a reasonable belief in the mind of the decision maker as to Mr Payne's liability to discipline if that charge is proven.

[36] In respect of the decision not to provide alternative duties, the same spectrum of possibilities require consideration. The question of 'reasonable alternatives available to the employee' in this case must take into account the suitability of Mr Payne to serve in any capacity with the respondent where e.g. it is possible that it may subsequently be found that he has engaged in the act of stalking or intimidating his neighbour or spouse.

[37] In the absence of particulars of the facts giving rise to the charges, it is reasonable to contemplate that the conduct of Mr Payne might involve acts of domestic violence. It is further unknown whether the conduct giving rise to the charges involved children, either as victims or witnesses.

[38] These propositions are not baseless speculation. The charges describe particularly egregious conduct. Mr Payne has advised they arise in the context of a marital and neighbourhood dispute. Given the dearth of other details, these propositions are not at all outside the bounds of reasonable contemplation for the decision maker.

[39] Plainly, the broader legal duties of the respondent to students and staff demand a cautionary approach such that Mr Payne should not have contact with students. But there are equally scenarios where e.g. the very spectre of serious domestic disputation resulting in criminal charges could cause Mr Payne to trigger anxiety in co-workers.

[40] It is ultimately unnecessary to attempt to illustrate reasons why Mr Payne's circumstances prevent reasonable alternatives to suspension. Suffice to say that the charges against him are not trivial and, in the absence of full particulars, it is reasonable for the decision maker to err on the side of caution in this instance until a more accurate evaluation of risk can be made if or when more details become available.

[41] Turning then to the matters informing the discretion to suspend without normal remuneration, it is plain from the decision that the decision maker was guided by both the terms of s 101(4) of the PS Act and the Directive. The decision specifically addresses the relevant available considerations drawn from both of those sources in the decision.

[42] Having regard to those considerations, the fact that Mr Payne's charges are currently at an early stage of their progress before the courts is very relevant. The progress of contested criminal charges before courts is not subject to any predictable program or time frame. The possibilities are vast, but general experience would suggest that a period of 12 months to conclusion would not be unlikely. Unresolved contested criminal charges are the quintessential example of 'factors not within the control' of the respondent.

[43] It is not fanciful to consider that Mr Payne's employment might be terminated if he is convicted of the charges. The conviction would be a matter required to be disclosed to the respondent and, to the extent it was a product of proceedings in open court, it plainly meets the definition of misconduct found at s 91(5)(b) of the PS Act.

[44] When this is balanced against the 'community expectations and broader public interest' one can readily appreciate why the decision maker arrived at the decision.[6] Importantly, the obvious hardship likely to be experienced by Mr Payne if denied normal remuneration has not been ignored by the decision maker. Nor has the decision maker presumed guilt. But weighed against the possible spectacle of an employee suspended on normal remuneration for a lengthy and uncertain period of time, only to be convicted and subsequently dismissed, the public interest favours suspension without normal remuneration.

[45] I do not seek to trivialise the impact of this decision on Mr Payne. To deny an employee their otherwise lawful entitlement to remuneration requires significant justification. But s 101(4) of the PS Act plainly contemplates the scenario in appropriate circumstances. There is a great need to balance public interests and meet community expectations. The remuneration in question is drawn from public resources. One of the reasonably foreseeable outcomes on the information that is available could be that Mr Payne is convicted of the charges and then be dismissed. If that were to occur e.g. one year from now, after a lengthy period of suspension with normal renumeration, it takes no imagination to anticipate the public reaction. The interests of Mr Payne must be balanced against those well established and reasonable public expectations.

[46] While I accept that the hardship to Mr Payne will be significant, I note that he may ultimately have the benefit of the protections available under Clause 10 of the Directive in the event that his opinions as to the merit of the charges prove correct.

[47] In all of those circumstances I consider the decision is fair and reasonable.

[48] For completeness I note that Mr Payne has asserted in one instance that the decision is unfair and unreasonable because, on various grounds, the respondent has not complied with the Directive. In Ehrlich v State of Queensland (Queensland Corrective Services)[7] I made the following observation:

The singular purpose of the Commission when conducting a review of a decision is to determine if it was fair and reasonable. "Fair and reasonable" is a broad concept in respect of the consideration applied by the Commission.

While conforming with a directive is ideal, a failure by a decision maker to comply with a directive (of itself) will not render a decision unfair or unreasonable. It will always be the case that fairness and reasonableness are determined by consideration of the relevant facts and circumstances surrounding a decision under review.

There will be matters such as this where common sense must prevail over procedure and technicality. While I am unable to find fault with the decisions under review, to whatever extent the decision maker has been unclear or has deviated from the procedural path, he has arrived at a decision that is objectively and resoundingly correct given the facts.

[49] I do not consider that the respondent and the decision maker has misapplied or failed to apply the Directive. But even if they had, I would not consider that would render this decision unfair and unreasonable.

[50] In all of the circumstances, I consider the decision under review is fair and reasonable, and I make the following order:

[2] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018.

[6] AB v State of Queensland (Department of Education) [2024] QIRC 049.

(Queensland College of Teachers) Act 2005

Payne v State of Queensland

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Judgment (83 paragraphs)

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