Stronach v State of Queensland

Industrial Relations Act 2016 s 562C

Public Sector Act 2022 (Qld) ss 103, 104, 105, 106, 107, 108, 109, 131, 133

[1] Ms Angela Judith Stronach (the Appellant) is employed by the Queensland Ambulance Service (the QAS; the Respondent) as an Emergency Medical Dispatcher (EMD) at the Toowoomba Operations Centre. She has been employed as an EMD since 29 June 2015,[1] first commencing at the Brisbane Operations Centre.

[2] On 24 April 2025, Assistant Commissioner Peta Thompson (AC Thompson), Darling Downs South West Region directed the Appellant to attend an Independent Medical Examination (IME) due to concerns the QAS held about the Appellant's absences from the workplace.[2]

[3] On 8 May 2025, the Appellant requested an Internal Review of the direction to attend an IME.[3]

[4] On 24 June 2025, Ms Theresa Hodges, Executive Director, Workforce (the Decision-Maker) determined that AC Thompson's direction that the Appellant attend an IME was compliant with the conditions of section 103 of the Public Sector Act 2022 (Qld) (PS Act) and the procedural elements of the Public Sector Commission's Directive 04/24: Independent medical examinations (IME Directive).[4]

[5] The subject of this appeal is the internal review decision of the Decision-Maker.

[6] In March 2022, the Appellant suffered a personal trauma.[5] She took emergent leave to support her family.[6]

[7] The Appellant has been diagnosed with complex grief with sub-clinical Post Traumatic Stress Disorder (PTSD).[7] She has obtained health support from Dr O'Leary (GP), Ms Harding (Psychologist), Ms Foreman (QAS External Psychologist) and Ms Metcalfe (QAS Regional Staff Counsellor).[8]

[8] From December 2022 until August 2024, the Appellant was seconded to other roles.[9]

[9] Then the Appellant commenced long service leave.[10] Her long service leave ended in December 2024.

[10] The Appellant has been on a period of Leave Without Pay since 17 December 2024, which is ongoing.[11]

[11] The Appellant's medical certificates confirmed she was unfit to work in the EMD role.[12]

[12] On 28 August 2024, the Appellant met with Ms Kylie Cooke, Executive Manager - Superintendent, South West Operations Centre, Darling Downs and South West Region, QAS (the Appellant's manager) and Ms Metcalfe. The purpose of the meeting was to inform Ms Cooke of the Appellant's trauma and that she "was no longer suitable to work as an EMD, in Ms Metcalfe's opinion. Ms Cooke suggested that the Appellant apply for redeployment. Ms Cooke advised she would seek advice on the process and recommended that the Appellant lodge an income protection application."[13]

[13] On 15 November 2024, the Appellant received correspondence from Ms Cooke explaining the redeployment process. A series of forms were attached, along with the QAS Displaced Tenured Employees Human Resources Procedure (the DTEHR Procedure). Ms Cooke stated that the "detailed medical report would be best completed by your GP or treating psychologist/psychiatrist."[14] The Appellant then started the process of seeking redeployment to another role within QAS.

[14] In the course of that endeavour, the Appellant carried out the instructions provided to her by Ms Cooke to progress her application.[15] The Appellant went to enormous efforts to comply with the instructions Ms Cooke had provided, including:

15 November 2024 Appellant sent the Information Release Authority form to Ms Cooke.

11 December 2024 Appellant sent the QAS Work Capabilities Checklist to Ms Cooke.

17 December 2024 Appellant sent amended QAS Work Capabilities Checklist to Ms Cooke, reflecting ability to do general driving duties.

18 December 2024 Appellant sent medical certificate for the period 17 December 2024 to 17 March 2025 to Ms Cooke.

21 January 2025 Appellant sent medical report by Dr O'Leary to Ms Cooke.

22 January 2025 Appellant sent the Registration of Displaced Employee - Ill Health form to Ms Cooke.

14 March 2025 Appellant sent medical certificate for period 17 March to 17 June 2025 to Ms Cooke.

19 March 2025 Appellant received correspondence from Ms Cooke advising that the redeployment application could not proceed as the Appellant had not satisfied the level of medical evidence required. Ms Cooke also attached a Psychological Work Capabilities Checklist for completion.

20 March 2025 Appellant expressed her frustration with the process to Ms Cooke. The Appellant clarified the exact requirements before arranging new medical evidence.

21 March 2025 Ms Cooke clarified the requirements and advised the Appellant to access an external resource as Ms Metcalfe "may be perceived as a conflict of interest" because she was the Appellant's regular counsellor.

21 March 2025 Appellant expressed anxiety about needing to see someone else, to Ms Cooke.

8 April 2025 Appellant consulted Ms Foreman (Psychologist) to arrange a new medical report.

10 April 2025 Ms Cooke called Appellant to request a meeting to discuss why the application was not proceeding.

11 April 2025 Email exchange occurred between the Appellant and Ms Cooke regarding a suitable date and time, so that her UWU Delegate could attend the meeting with the Appellant.

24 April 2025 Appellant and her UWU Delegate met with Ms Cooke and Ms Mei-Lin Dean (Acting Director, Clinical Operations). At that meeting, the Appellant was advised that an IME Directive would be issued.

Within an hour of the meeting concluding, the IME Directive was issued to the Appellant.

7 May 2025 Appellant sent new medical report and updated Information Release Authority form to Ms Cooke.

8 May 2025 Appellant requested an Internal Review of the IME Directive.

9 May 2025 Appellant sent an updated Work Capabilities Checklist and the Psychological Work Capabilities Checklist to Ms Cooke, completed by Ms Foreman.

18 June 2025 Appellant sent a medical certificate for the period 18 June to 18 September 2025 to Ms Cooke.

24 June 2025 Appellant received outcome of Internal Review into the IME Directive.

[15] The Appellant submitted that Ms Cooke gave her poor, incomplete and generally inaccurate advice. That has been accepted by the Respondent. In the Internal Review decision, the Decision-Maker acknowledged that: [16]

In reviewing this matter, it is apparent that you have inadvertently been provided with the incorrect information, and I wish to apologise to you on behalf of the QAS. I accept that the provision of information that is not correct has been incredibly frustrating for you, and I wish to acknowledge the steps you have taken to attempt to comply with the requests to provide information from your treating practitioner in good faith.

[16] The Appellant submitted that clause 3.10.1 of the QAS DTEHR Procedure states:[17]

The authorised delegate is required to determine whether it is reasonably practicable to transfer or redeploy an employee where:

a) specialist medical evidence indicates that the employee is medically incapable of performing the genuine occupational requirements of their substantive role into the foreseeable future;

b) reasonable adjustment is not appropriate or reasonably practicable to allow the employee to continue employment in their substantive role.

[17] The QAS Human Resource Delegations Manual[18] states that redeployments can be approved by Levels 1 to 4 - but cannot be approved by Levels 5 to 6. The QAS HR Manual provides that the positions of Assistant Commissioner (AC Thompson) and Executive Director Workforce (Ms Hodges) fall within the level of Delegations that can approve redeployment applications, though the position of Executive Manager Operations Centre (Ms Cooke) generally cannot.[19]

Is this an appeal against a "fair treatment decision" or "directive decision"?

[18] The Appellant has filed her complaint as an appeal against a "fair treatment decision," pursuant to section 131(1)(d) of the PS Act.

[19] The Respondent submitted that the appeal should not be heard as an appeal against a "fair treatment decision," but rather it is better characterised as an appeal against a "directive decision," under section 131(1)(b) of the PS Act.

[20] The Respondent has submitted that the Appellant having lodged this appeal as a fair treatment decision is misguided as "the Appellant has provided insufficient substance to determine that there has been a departure from procedural fairness, and the appeal is on the basis of dissatisfaction with a Directive Decision."[20]

[21] The Respondent submitted that pursuant to section 131(2) of the PS Act, the fair treatment appeal should not be heard as the appeal may be made against a decision other than under section 131(1)(d).[21]

[22] If the Commission is minded to hear the matter as an appeal against a fair treatment decision, the Respondent submitted that the Decision-Maker's decision should be upheld as it was fair and reasonable.[22]

[23] Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. A "fair treatment decision" is a decision which the Appellant contends is unfair and unreasonable, under section 131(1)(d) of the PS Act. Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. Directive 04/23: Appeals (the Appeals Directive) provides that certain decisions cannot be appealed as "fair treatment" decisions, including "a decision made under chapter 3, part 8, division 5 of the Act (mental or physical incapacity)."[23] That is, the sections of the PS Act enabling the chief executive to direct an employee to attend an IME in certain circumstances.

[24] The PS Act and Appeals Directive further state that an appeal cannot be filed against a "fair treatment decision" if it can be made against another type of appealable decision, pursuant to section 131(1) of the PS Act.[24]

[25] As the appeal against a decision to direct the Appellant to attend an IME cannot be made against a "fair treatment decision," I will hear the Appellant's complaint as an appeal against a "directive decision."

[26] An appeal against a directive decision means "a decision to take, or not to take, action under a directive,"[25] pursuant to section 129 of the PS Act. Such decisions may be appealed by "a public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive."[26]

[27] The Appeals Directive provides that (emphasis added): [27]

(a) is only entitled to appeal a directive decision to the extent that a relevant directive expressly declares a decision under that directive to be appealable under section 131(1)(b) of the Act.

(b) must first comply with their entity's procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity) unless the directive decision was made by the chief executive of that entity.

[28] With respect to the scope of the appeal permitted under the Appeals Directive clause above then, the IME Directive provides that (emphasis added):

An employee may appeal an internal review decision under clause 11 that requires the employee to submit to a medical examination (a directive decision), on the basis that the decision does not meet the requirements of section 103 of the Act, as provided for in chapter 3, part 10 (Appeals) of the Act.

Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016 (IR Act).

[29] Relevant to the 'scope' of the appeal permitted under the Appeals Directive provision, set out above, section 103 of the PS Act provides that:

This division applies to a public sector employee if -

(a) the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing the employee's duties satisfactorily; and

(b) the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

[30] As the Appellant is "a public sector employee aggrieved by the decision," as evident by the fact of filing this appeal - and given the appeal was filed within the 21-day time limit - I find that Ms Stronach has standing to bring this appeal against a directive decision.

[31] Section 562C of the Industrial Relations Act 2016 (Qld) (IR Act) prescribes that the Commission may determine to either:

a) confirm the decision appealed against;

b) set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or

c) set the decision aside and substitute another decision.

[32] The decision appealed against is the Internal Review decision of Ms Hodges, upholding an earlier direction issued by AC Thompson that the Appellant attend an IME.

This division applies to a public sector employee if -

(a) the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing the employee's duties satisfactorily; and

(b) the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

104 Chief executive may require medical examination

(a) appoint a doctor to examine the employee and give the chief executive a written report on the examination; and

(b) require the employee to submit to the medical examination.

105 Employee not to be given sick leave if requirement not complied with

The employee must not be given sick leave for any period during which the employee fails to comply with a requirement under section 104(b).

(1) The report on the medical examination must include the examining doctor's opinion as to whether the employee has a mental or physical illness or disability that may adversely affect the employee's performance.

(2) If the doctor considers the employee has an illness or disability mentioned in subsection (1), the report must also include the doctor's opinion as to the following -

(a) the likely direct or indirect effect of the illness or disability on the employee's performance;

(b) an estimate of how long the illness or disability or its effects are likely to last;

(c) whether or not disclosing the information in the report to the employee might be prejudicial to the employee's mental or physical health or wellbeing.

(3) If the doctor's opinion is that the disclosure will not be prejudicial to the employee's mental or physical health or wellbeing, the chief executive must give the employee a copy of the report as soon as practicable after receiving the report.

(4) If the doctor's opinion is that the disclosure might be prejudicial to the employee's mental or physical health or wellbeing, the chief executive must not disclose the contents of the report to the employee.

(5) However, if asked by the employee in writing, the chief executive must make the disclosure to another doctor nominated by the employee in the request.

(1) If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may -

(b) if it is not reasonably practicable to transfer or redeploy the employee -

(i) for a public service employee - retire the employee from the public service; or

(ii) for a public sector employee mentioned in section 12(1)(b) - retire the employee from the employee's employment.

(2) Subsection (1) does not limit the action that may be taken relating to the employee.

(a) the requirement to submit to a medical examination; and

(2) If the chief executive considers it necessary to protect the employee's interests, the chief executive may keep the record separate from other records about the employee.

109 Directive about mental or physical incapacity

(1) The commissioner may make a directive providing for matters relevant to the way in which this division is to be applied in relation to public sector employees.

(2) The chief executive of a public sector entity exercising a power or performing a function under this division must comply with the directive.

[34] The Appeals Directive states that a public sector employee is only entitled to appeal a directive decision to the extent that a relevant directive expressly declares a decision under that directive to be appealable.[28]

[35] As earlier noted, the IME Directive specifies that the scope of the appeal against a decision under that directive is whether the requirements of section 103 of the PS Act are met.

[36] Section 103 of the PS Act provides that the division applies to a public sector employee if:

(a) They are absent from duty or not performing duties satisfactorily; and

(b) The absence or unsatisfactory performance is suspected to be caused by "mental or physical illness or disability."

[37] I have also had regard to the QAS DTEHR Procedure.

[38] Having explained why I will proceed to hear this matter as an appeal against a directive decision, the remaining question to be decided is:

Whether the Decision-Maker's Internal Review decision to direct the Appellant to attend an IME was fair and reasonable?

(a) She appeals the Internal Review decision.[29]

(b) With respect to the QAS DTEHR Procedure, the reports from Dr O'Leary and Ms Foreman support that the Appellant is unfit for her substantive role, adjustments are not feasible and the Appellant is suitable for trigger-free roles.[30]

(c) "The Respondent failed to clearly specify the required type of medical specialist report during the redeployment process, and the Appellant acted in good faith on inaccurate advice from her manager."[31]

(d) AC Thompson was aware, or ought to have been aware, of the relevant medical circumstances and the ongoing redeployment application.[32]

(e) The IME Directive issued by AC Thompson:

(i) failed to account for procedural inconsistencies and did not give due consideration to the updated information provided to Ms Cooke on 24 April 2025;[33]

(ii) did not properly exercise discretion under section 104 of the PS Act, as the existing medical and psychological evidence was not adequately considered;[34]

(iii) did not recognise section 106(2) of the PS Act requirements were satisfied by the evidence provided by the Appellant;[35]

(iv) was unnecessary because the power to transfer or redeploy the Appellant without recourse to an IME was provided under section 107(1)(a) of the PS Act.[36]

(f) The Appellant requests the Queensland Industrial Relations Commission (QIRC) uphold the appeal and that QAS acknowledge the sufficiency of the evidence provided by Dr O'Leary and Ms Foreman to support the progression of her redeployment application.[37]

[40] The Appellant submitted that (emphasis added):[38]

...I have been carrying out instructions provided to me by my manager in relation to my redeployment application. In March 2025, it became apparent to me via email correspondence with my manager that I had been given misleading and incomplete information regarding the redeployment process. By this point, I had submitted a series of forms and documents, as requested, to support my application; however, I was informed that the application could not proceed. I received clarification from my manager regarding the process and commenced the steps necessary to obtain new supporting evidence.

On 24 April 2025, I attended a meeting with my manager. I was informed that because I had been on leave without pay (LWOP) for over three months, and without satisfactory evidence to support my redeployment application, that I would receive a directive from the Assistant Commissioner (AC) to undergo an Independent Medical Examination (IME), During the meeting, I provided an update about obtaining the new supporting evidence, which included the information that my second medical report was due immediately. Less than an hour after the meeting had concluded, the IME directive was emailed to me by the AC.

On 8 May 2025, I lodged an internal review with QAS Workforce. On 24 June 2025, it was decided that the directive issued by the AC was supported, in accordance with Section 103 of the Public Service (PS) Act. However, it was acknowledged that I had been inadvertently provided with incorrect information and received an apology. Furthermore, QAS stated that they would be undertaking a review of the Displayed Tenure Employees Procedure to ensure consistency with legislative obligations in the future.

I do not dispute that I am an absent employee and that my absence is due to mental or physical illness or disability, as per the PS Act, Chapter 3, Division 5, Section 103.

I am appealing the decision of the internal review on the basis that QAS acknowledged I was disadvantaged throughout this process. Moreover, it is my view that the IME directive was issued by the AC without due consideration, despite updated information being provided by me to my manager. It is for these reasons that I respectfully request that the QIRC uphold this appeal and that QAS accept that the evidence provided by my GP and psychologist is sufficient to enable the redeployment application to proceed.

[41] The Appellant's reply submissions asserted that the Internal Review dated 24 June 2025 to confirm the direction to attend an IME was not fair or reasonable because:

(a) Knowledge of the Appellant's particular circumstances[39]

(i) AC Thompson ought to have exercised discretion under the PS Act to "accept the medical and psychological evidence already provided, particularly considering inconsistencies in the procedural handling of her case."

(ii) AC Thompson knew, or should have known, the Appellant's absence from work was directly related to her ability to perform duties at the Operations Centre.

(iii) AC Thompson knew, or should have known, the Appellant was attempting to achieve redeployment, given interactions with Ms Cooke and the Appellant's submission of numerous forms, medical reports and documentation requested.

(b) PS Act, section 104[40]

(i) Section 104 empowers, but does not compel, the Chief Executive to direct an employee to attend an IME in certain circumstances.

(ii) The discretion to direct an IME must be exercised reasonably, in consideration of the circumstances. In this case, the Appellant was providing "sufficient medical and psychological evidence demonstrating that her absence was the result of a mental...illness, in support of her redeployment application."

(iii) The section 104 power to compel attendance at an IME "was applied as though it were a mandatory requirement, contrary to its discretionary intent", without weighing the medical evidence provided and disregarding delays caused by "inadvertent provision of incorrect information" to the Appellant.

(c) PS Act, section 106(2)[41]

(i) That section specifies the information to be considered in incapacity matters. This information had already been supplied to the Respondent through detailed medical reports from the Appellant's GP and an external QAS psychologist.

(ii) The provided reports addressed the Appellant's capacity to perform her substantive role and undertake alternative duties.

(iii) The Respondent submitted that a GP and psychologist were not suitable medical specialists, though the Appellant relied on errored advice from Ms Cooke in that regard.

(iv) The scope of acceptable "medical evidence" under clause 3.10.1(a) of the QAS DTEHR Procedure was not explained to the Appellant during the process.

(d) PS Act, section 107[42]

(i) That section empowers AC Thompson to transfer or redeploy an employee where appropriate, and she ought to have exercised that discretion with "the medical and psychological evidence already provided, rather than further delaying the process pending an IME."

(ii) The Respondent's reliance on clause 9.3 of the IME Directive "overlooks that the Chief Executive retains the power under section 107 to act upon existing medical evidence without first obtaining an IME, where that evidence is sufficient to decide."

[42] The Respondent submitted that the Decision was fair and reasonable because: [43]

1. the Decision and original direction to attend an IME complied with the relevant sections of the PS Act and Directive 04/24;
2. the Decision and original direction to attend an IME each had due regard for the Appellant's rights under the Human Rights Act 2019; and
3. it was reasonably open to the Decision-Maker to determine that the direction to attend an IME sufficiently satisfied the elements of section 103 of the PS Act and was procedurally compliant with Directive 04/24.

1. "there is no practical relief available to the Appellant with regard to their specific request for medical redeployment"[44]

1. "an order stopping the IME would prevent the Respondent from obtaining medical advice necessary to discharge its health and safety obligations with respect to any positions sought for redeployment."[45]

[44] Further, the Respondent submitted that:[46]

(a) Ms Kylie Cook (the Appellant's manager) did not provide the Appellant with accurate information regarding an application under the QAS DTEHR Procedure, though that was not deliberate.

(b) The evidence supplied by the Appellant is "insufficient to satisfy the requirements under section 107 of the PS Act and the QAS has insufficient powers to engage in the remedies sought by the Appellant."

(c) The QAS DTEHR Procedure provides the delegate decides whether it is reasonably practicable to transfer or redeploy the employee (cl 3.10.1) and that the provision "specifically requests the evidence of relevant medical specialists," where that does not include a psychologist or counsellor.

(d) The IME Directive sets out the circumstances when an employee supplied medical report may be used by the public sector entity, at clause 9.2 (emphasis added):

• 9.2 Where an employee provides a medical report or consents to the public sector entity being provided with a medical report from a third party (for example, a medical certificate or report from the employee's treating doctor, a work capability assessment from an occupational therapist or a report from QSuper), for the purposes of managing the effects of the employee's mental or physical illness or disability, the entity can:

  (a) consider the information in determining what actions, if any, are required to manage the employee's mental or physical illness or disability in the workplace, such as reasonable adjustments or a graduated return to work plan. This is distinct from taking action under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act

  (b) use the medical reports (excluding workers' compensation documents) to support decisions under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act, and disclose the medical reports to the examining doctor for the purpose of section 104 of the Act. This is an authority to use and disclose this information under Information Privacy Principle (IPP) 10 subsection (1)(c), IPP 11 subsection (1)(d) and National Privacy Principle (NPP) 2 subsection (1)(f) of the Information Privacy Act 2009 (Information Privacy Act) and any successor/s to any privacy principles resulting from legislative review.

(e) Further, the IME Directive provides that:

• 9.3 An existing medical report cannot be used as a substitute for a report that the public sector entity would receive following an employee attending a medical examination in accordance with section 104 of the Act, to authorise action to be taken under section 107 of the Act. However, a chief executive may consider an existing medical report (excluding workers' compensation documents) as additional relevant information when considering action under section 107 of the Act, following receipt of a medical examination report obtained under section 104 of the Act.

(f) The remedy sought by the Appellant would not be compliant with clause 9.3 of the IME Directive. The Decision-Maker explained that was the case, in the Internal Review decision dated 24 June 2025.

(g) The direction to attend an IME is required to ensure procedural compliance with the IME Directive and PS Act.

(h) QAS followed the procedural requirements of the IME Directive.

[45] The Respondent's reply submissions addressed the following matters:[47]

(a) Whether the Chief Executive (or their delegate) had sufficient information from the Appellant to grant them the requested redeployment within QAS, as per the powers of the PS Act?[48]

(i) AC Thompson is not the Chief Executive, though holds delegated authority under clause 24.2 of the QAS HR Delegations Manual.

(ii) Ms Cooke does not hold sufficient delegation to authorise redeployment under clause 3.5 of the QAS Human Resources Delegations Manual. Ms Cooke would be required to consult with QAS HR Branch if seeking to redeploy following receipt of a medical report.

(iii) Should an IME report identify the Appellant is unable to return to her substantive role, it would also inform consideration of appropriate redeployment roles and relevant fitness for duty for any such medical advice.

(b) The Respondent's interpretation of, and adherence to, sections 104, 107 and 109 of the PS Act

(i) PS Act, section 104[49]

1. Given sections 103(a) and (b) of the PS Act were satisfied, it was open to and appropriate for the delegate to exercise the discretionary powers under section 104 of the PS Act.

(ii) PS Act, section 106(2)[50]

1. The Appellant has misinterpreted the meaning of sections 106(2)(a)-(b).
2. Sections 104(a)-(b) provides that the Chief Executive can appoint a doctor for the medical examination and require the employee to attend it.
   1. The medical examination referred to in section 106 is that stipulated in section 104, which the Appellant has not attended.

(iii) PS Act, sections 107, 109[51]

1. The Appellant's view of the powers of section 107 are incorrect.

2. "The third-party medical reports provided by the Appellant do not support reasonable adjustments or similar management strategies in [her] substantive role and thus the discretion of clause 9.2(a) of Directive 04/24: Independent Medical Examinations...to act upon existing medial evidence is inconsequential."

   1. "The existing third-party medical reports were regarded and appropriately recommended to support the IME in the Internal Review Decision" (that is subject of this appeal).

   2. The Respondent notes section 109 requires the Chief Executive to comply with the directive when exercising powers under Part 8, Division 5 of the PS Act.

(iv) Delays do not make decision unfair and unreasonable[52]

1. The Respondent acknowledged the initial delays in the direction to attend an IME, in correspondence dated 24 April 2025.

2. That correspondence provided an IME appointment on 28 May 2025 - the earliest reasonably practicable, in compliance with the 28-day notice period (pursuant to clause 10.5, IME Directive).

   1. The initial delays prior to direction issued to attend the IME, do not make the ultimate direction to attend it unfair or unreasonable.

   2. The Respondent has attempted to manage the matter expeditiously since identifying the correct avenue.

[46] The subject of this appeal is whether the Internal Review decision of Ms Hodges, dated 24 June 2025, was fair and reasonable.

[47] Clause 11.4 of the IME Directive states that the Internal Review must determine whether:

(a) The conditions of section 103 of the PS Act are met; an

(b) The procedural elements of the IME Directive are satisfied**.**

(a) Upheld AC Thompson's decision to direct the Appellant to attend an IME, because the conditions of section 103 were met; and

(b) Identified that the "notice" to the Appellant to submit to an IME (that is, the decision of AC Thompson, dated 24 April 2025) did not enclose the "evidence relied upon" for the direction. That mandatory procedural element of the IME Directive was not satisfied, pursuant to clause 10.5(a) of the IME Directive; and

(c) Observed the letter to the IME Psychiatrist (Attachment 4 to the decision of AC Thompson, dated 24 April 2025) also did not enclose the "evidence relied upon" for the direction. On that basis, Ms Hodges decided that AC Thompson should reissue her correspondence to the IME Psychiatrist to enclose specified supporting medical information. In addition, Ms Hodges agreed to the Appellant's request to also provide Ms Foreman's (Psychologist) report to the IME Psychiatrist. (Ms Foreman's report was issued a few days after AC Thompson's decision).

[49] Chapter 3, Division 5 of the PS Act sets out the IME provisions.

[50] The relevant elements of section 103 of the PS Act to the current matter are that the provisions apply to a public sector employee if they are "absent from duty" and "the chief executive reasonably suspects that the employee's absence...is caused by a mental or physical illness or disability."

[51] The Internal Review decision[53] noted the Appellant has been "absent on a period of sick leave since 17 December 2024 and [she had]...provided medical certificates for [her] absence." AC Thompson's decision had noted the date the Appellant's absence from the workplace commenced and the medical certificates provided to QAS indicting that absence from work was due to "unfit for her position as an Emergency medical dispatcher."[54]

[52] In the Appeal Notice, the Appellant does not dispute that she is "an absent employee and that my absence is due to mental or physical illness or disability, as per the PS Act, Chapter 3, Division 5, Section 103."[55]

[53] For those reasons, it was fair and reasonable for the Decision-Maker to have determined that the criteria set out in section 103 of the PS Act were satisfied.

[54] As earlier noted, the IME Directive specifies that the Internal Review must also determine whether the procedural requirements have been met.

Written notice to Appellant not compliant with clause 10.5(a) of IME Directive

[55] The Decision-Maker identified that the mandatory clause 10.5(a) of the IME Directive had not been complied with. That is, the written notice provided to the Appellant was deficient because it did not enclose the "evidence relied upon" for the direction.

[56] Although found non-compliant with the express mandatory terms of the IME Directive, the Decision-Maker decided that failure was insufficient to overturn AC Thompson's decision entirely. Rather, the Decision-Maker's view was the omission may be simply remedied by AC Thompson reissuing the amended written notice to the Appellant, such that it is then compliant with the mandatory terms of clause 10.5(a).

[57] I agree that the Decision-Maker's determination was fair and reasonable.

[58] While I emphasise that the IME Directive expressly states that "The requirements set out in these directions are binding and must be followed"[56] - and the written notice directing an employee to submit to an IME "must...include...(...evidence relied upon) for the direction..." (amongst other things) - it is the case here that the particular "evidence" was six medical documents (Work Capabilities Checklists, Medical Certificates, and Medical Reports) obtained by the Appellant herself and provided to QAS.

[59] For that reason, although the mandatory provisions of the IME Directive should have been complied with and were not, the Appellant has not suffered insurmountable disadvantage in the process as a result because she herself was aware of, and provided, the particular medical information / "evidence" relied upon.

[60] Further, the Decision-Maker also identified that the correspondence issued to the IME Psychiatrist failed to enclose supporting medical information.

[61] In addition, the Decision-Maker appropriately noted there was now an opportunity for Ms Foreman's Psychologist Report (dated 28 April 2025 - a few days after AC Thompson's IME direction was issued to the Appellant) to also be provided to the IME Psychiatrist in the amended correspondence to be re-issued. I note that the Appellant provided the medical information to QAS, so it was appropriate then that they be shared with the IME Psychiatrist, pursuant to section 104 of the PS Act and clause 9.2(b) of the IME Directive.

[62] Ultimately, the Decision-Maker decided that this further failure too was insufficient to overturn AC Thompson's decision entirely. Rather, the Decision-Maker's view was the omission may be most quickly and practically remedied by AC Thompson reissuing the amended correspondence to the IME Psychiatrist, such that it did then attach the six medical documents (Work Capabilities Checklists, Medical Certificates, and Medical Reports) obtained by the Appellant herself - together with Ms Foreman's Psychologist Report, obtained after AC Thompson's decision was issued.

[63] I agree that the Decision-Maker's determination was fair and reasonable.

[64] The IME Directive sets out numerous 'Principles' at clause 5, including clause 5.10 as follows (emphasis added):

Public sector managers and employees are required to work together to:

(a) manage work performance and absence in an appropriately supportive manner, including where mental or physical illness or disability may be a contributing factor

(b) communicate regularly, openly and constructively, including while the employee is absent, or during performance management processes. Mutual information sharing can be beneficial and is likely to improve outcomes for employees' health, safety, wellbeing and work performance

[65] I need not elaborate here the extent of the manager's unfortunate failures to provide accurate information to the Appellant, nor the impact that has had on her, given the Decision-Maker has accepted, admitted and apologised for it. I note with approval that the Respondent's submissions do not seek to minimise or resile from that either. That is appropriate and undoubtedly appreciated by the Appellant.

[66] The manager's inadvertent failure to uphold the principles contained in the IME Directive is certainly regrettable, but the Decision-Maker's sensible concession means that the Internal Review decision ought not be disturbed on those grounds either. That was fair and reasonable.

[67] AC Thompson's correspondence set down an IME appointment as soon as reasonably practicable and in compliance with the 28-day notice period, pursuant to clause 10.5(b), IME Directive.

[68] The initial delays caused by the successive, errored instructions to provide various medical information and other documents given by the Appellant's manager, prior to direction issued to attend IME, do not make the ultimate direction to attend an IME unfair or unreasonable.

[69] I will not disturb the Internal Review decision on those grounds either.

[70] The parties have made submissions regarding the proper interpretation of sections of the PS Act, with respect to whether it was fair and reasonable for the IME direction to be issued.

[71] I have had regard to those submissions and make the following observations about the interpretation and effect of those provisions.

[72] If the section 103 criteria are satisfied (and there is no dispute that they are here), then the chief executive (or their delegate) "may" require the employee to submit to an independent medical examination by a doctor the employer appoints to conduct it and provide a written report.

[73] While it is not mandatory or automatic, the word "may" means it is open to the chief executive to exercise their discretion to direct the employee to an IME in those circumstances.

[74] The IME Directive further informs the exercise of that discretion. Clause 8.1 provides that the chief executive "must" consider (matters including the following relevant to this case) "whether there is a more appropriate option in the circumstances to attempt to resolve the employee's...absence...This may also include...seeking the employee's consent to obtain information from the employee's treating doctor to inform further discussions about the...absence, or a graduated return to work."

[75] The Appellant argued that there was "a more appropriate option" to resolve her absence from the workplace - that is, redeployment to a different role, where her condition would not be triggered. In the Internal Review decision, the Decision-Maker explained that because the Appellant could not return to her substantive EMD role (supported by advice from treating practitioners) it was open to AC Thompson to have formed "a view that there was not a more appropriate option to attempt to resolve your absence from your EMD position and seek an independent assessment."[57] I accept that to be a fair and reasonable conclusion for the Decision-Maker to arrive at. The Appellant's absence could not be resolved by obtaining further information from her treating Doctor. The advice presented was she could not return to her substantive role at all. With that information before her, it was fair and reasonable for AC Thompson to conclude there was no "more appropriation option available". On those grounds, I support the Decision-Maker's finding that the direction to attend an IME was fair and reasonable, pursuant to the exercise of discretion under section 104 of the PS Act.

[76] Although it does not change my finding to uphold the Internal Review decision as fair and reasonable, I find the remaining two arguments advanced by the Decision-Maker on this point to be unconvincing.

[77] Firstly, the Decision-Maker relied on the fact of an existing medical report, citing clause 9.3 of the IME Directive. The argument advanced essentially appeared to be that the fact of an existing medical report meant that an IME report was required. In my view, clause 9.3 pertains to consideration of an appropriate action following the IME report, pursuant to section 107 of the PS Act. That is, whether it may be appropriate to propose transfer, redeployment, retirement, or some other action in relation to the employee. The intent of clause 9.3 of the IME Directive, read in conjunction with section 107 of the PS Act, means that such actions (retirement, as the most extreme of those options) may only be proposed where an IME report has been first obtained - not on the basis of another "existing medical report" provided by an employee alone. Clause 9.2(a) of the IME Directive provides that the existing medical report provided by the employee may be considered (without an IME report) in circumstances where action "such as reasonable adjustments or a graduated return to work plan" may be contemplated. Though that does not appear to be the case here, as the Appellant's treating practitioners have advised she is unable to fulfil the requirements of the EMD role at all. The medical information supplied by the Appellant does not appear to suggest that she will be able to return to the substantive role in time, so it follows that neither a graduated return to work or reasonable adjustments (to the requirements of the substantive role, at least) will suffice in the circumstances. More is needed to understand what work duties, tasks and responsibilities the Appellant can safely perform - and in what particular settings. QAS requires that information, in order to consider, provide for and accommodate the Appellant's safe return to work in a suitable job, if at all possible. With respect to that particular emphasis, I observe the clear stated intentions prescribed in clauses 5.8 and 5.10(c) of the IME Directive, they are:

5.8 The Queensland Government is committed to supporting public sector employees with mental or physical illness or disability to maintain their employment, including through application of reasonable adjustment, where appropriate.

(c) where a medical examination report has been obtained under section 104 of the Act, explore opportunities for continuing employment consistent with the medical examination report, before ill health retirement of an employee is considered by the chief executive under section 107 of the Act.

[78] For those reasons, I do not believe the Decision-Maker's reliance on clause 9.3 of the IME Directive was sound. Though that does not alter my decision that the Internal Review determination was fair and reasonable, pursuant to my reasons at paragraphs [46] to [75] above.

[79] Secondly, the Decision-Maker also relied on clause 3.10.1 of the QAS DTEHR Procedure to assert in the Internal Review decision that "an authorised delegate may only consider whether it is reasonably practicable to transfer or redeploy an employee on medical grounds under the DTEHR Procedure after first complying with Chapter 3, Part 8, Division 5 of the PS Act (ie after an employee has attended an IME)."[58] I have carefully read the QAS DTEHR Procedure that was attached to the Appellant's reply submissions. I cannot see where that claim is drawn from in the procedure. Neither do the Respondent's submissions nor reply submissions indicate the source of that assertion. The Respondent is on far safer ground with respect to two points made in its submissions: that information provided by the Appellant from her treating GP and psychologists do not meet the definition of "specialist medical evidence" and that the Appellant's manager does not have the delegated authority to consider and approve such applications in any case. Those are both legitimate reasons why the Appellant's genuine, extensive and dogged attempts to have redeployment considered through this pathway were defeated, through no fault of her own I hasten to add.

[80] For those reasons, I support the Decision-Maker's conclusion that it was fair and reasonable to direct the Appellant to submit to an IME, pursuant to section 104 of the PS Act, as further informed by clause 8.1(a) of the IME Directive.

[81] The legislative provisions of the PS Act and Directive provisions are elevated over the terms of a departmental procedure. To the extent that they are contradictory, the terms of the Act and Directive prevail.

[82] The Appellant submitted that the information to be considered had already been supplied to the Respondent through detailed medical reports from the Appellant's GP and an external QAS psychologist.

[83] However, it is not the opinion of "any" doctor that is referred to in this section. Rather, it is the opinion of "the" doctor. "The doctor" is the doctor appointed to examine the employee and prepare a written report on the examination, as established in the preceding section 104 of the PS Act.

[84] The Appellant's appeal on that ground must also fail.

[85] I have earlier found it was open to the Decision-Maker to find that AC Thompson's IME direction was fair and reasonable.

[86] I understand that the Appellant's clear ambition is to be supported for a transfer or redeployment, given the limitations of her current psychiatric/psychological condition. That decision cannot be considered, let alone proposed, until the Appellant attends the IME and the necessary report is prepared.

[87] Section 107 of the PS Act sets out possible action following the production of the written IME report. It refers to various outcomes that the chief executive may consider, after receiving the prepared report. As earlier noted, those actions may include transfer, redeployment, retirement, or some other action.

[88] I draw to the Appellant's notice clause 13 of the IME Directive. Clause 13.3 requires consideration of "how best to support the employee, with a focus on continuing employment...". That is further emphasised in clause 13.5, that states "All reasonably practicable options for continuing employment must be considered. Retirement of an employee should be considered as a last resort." Relevantly too, a decision about action to take following the IME report "is subject to procedural fairness."[59] That means the proposed action is presented to the employee in writing, together with an explanation of why that is proposed. The employee then has an opportunity to respond to the proposed action, along with a further "opportunity to submit any additional material they consider relevant as part of their response. For example, an existing medical report..."[60] The chief executive must consider all those materials and submissions and any other relevant information before deciding to take some action under section 107 of the PS Act.[61]

[89] I have explained those matters to provide the Appellant some assurance of the process to be followed, following her IME attendance. However, as that has not yet occurred, then clearly there is no such action considered or proposed at this time.

[90] Therefore, section 107 matters have no bearing on whether the Internal Review decision was fair and reasonable.

[91] It may be appropriate to comment briefly on the QAS DTEHR Procedure under which the Appellant seeks a "redeployment" remedy - rather then attend at an IME. Firstly, I have noted that the PS Act and Directive must be elevated over a 'procedure' [see para 81 of this Decision]. Secondly, I do not believe clause 3.10 necessarily delivers the Appellant with such redeployment - but rather only the chance of it. Leaving aside that the criteria of clause 3.10.1 has not yet been met, where the threshold tests in clause 3.10.1-2 have been satisfied, the authorised delegate may then recommend the employee's placement on a register for appointments within QAS for a maximum period of 3 months. If a placement is not identified in that period, then the employee may be retired on grounds of ill-health (clause 3.10.12). Again, I observe that to be problematic, in circumstances where the PS Act provides that action (including retirement, transfer or redeployment) may occur only after consideration of an IME report. My point is that even if the Appellant's preferred pathway for remedy was via the QAS DTEHR Procedure (which it is not as I have reasoned), it would not provide the solution the Appellant appears to think it does.

[92] While section 109 was referenced in submissions, it prescribes that a directive may be made and that the chief executive must comply with it.

[93] Some points of departure from the IME Directive provisions have been identified, as noted by the Decision-Maker in the Internal Review decision.

[94] I confirm the Decision-Maker's determination that those may be simply and practically remedied by amending and re-issuing the written notice to the Appellant and correspondence to the IME doctor, this time enclosing all relevant evidence / medical information so required.

[95] Inattention to the precise terms of the IME Directive ought not to have occurred, however it does not render the Internal Review decision unfair and unreasonable in this case.

Pursuant to section 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

[1] Respondent's submissions filed in the Industrial Registry on 30 July 2025, [3].

[5] Internal Review Decision dated 24 June 2025, 5; Appeal Notice filed in the Industrial Registry on 14 July 2025, 4.

[6] Appellant's submissions filed in the Industrial Registry on 24 July 2025, [12].

[8] Appellant's submissions (n 6), [14]-[18].

[11] Internal Review Decision (n 5), 2; Appeal Notice (n 5), 4; Appellant's submissions (n 6), [21].

[12] Internal Review Decision (n 5), 2; Appellant's submissions (n 6), [44].

[13] Appellant's submissions (n 6), [22].

[14] Appellant's submissions (n 6), [23].

[16] Internal Review Decision (n 5), 8; Appellant's submissions (n 6), [46].

[17] Appellant's submissions (n 6), [47].

[18] Human Resource Delegations Manual ('HRDM'), 12.

[20] Respondent's submissions (n 1), [9]-[10].

[23] Directive 04/23: Appeals ('Appeals Directive').

[29] Appellant's submissions (n 6), [48].

[31] Appellant's reply submissions filed in the Industrial Registry on 14 August 2025, [14].

[33] Appellant's submissions (n 6), [50].

[34] Appellant's reply submissions (n 31), [14].

[37] Appellant's submissions (n 6), [51].

[39] Appellant's reply submissions (n 31), [2]-[4].

[40] Appellant's reply submissions (n 31), [5]-[7].

[41] Appellant's reply submissions (n 31), [8]-[10].

[42] Appellant's reply submissions (n 31), [11]-[13].

[43] Respondent's submissions (n 1), [27].

[44] Respondent's submissions (n 1), [28].

[45] Respondent's submissions (n 1), [29].

[46] Respondent's submissions (n 1), [15]-[23].

[47] Respondent's reply submissions filed in the Industrial Registry on 18 August 2025.

[53] Internal Review Decision (n 5), 6.

[56] Directive 04/24: Independent medical examinations ('IME Directive'), Cl 6.1.

[57] Internal Review Decision (n 5), 8.

[58] Internal Review Decision (n 5), 7.