Mark Roche was an advanced care paramedic who remains employed by the Queensland Ambulance Service (QAS). On 30 December 2022, he was charged with a criminal offence.  The Queensland Police Service (QPS) advised the ambulance service and on 3 January 2023 Mr Roche was suspended on full pay pending determination of the criminal allegations.

On 6 March 2023 the Health Ombudsman took immediate action under the Health Practitioner Regulation National Law to suspend Mr Roche’s registration. On 24 March the QAS terminated Mr Roche’s suspension on full pay.  They did not however suspend him without pay, rather the relevant decision maker wrote:

I have formed the view that the suspension of your paramedicine registration prevents you from not only performing the inherent requirements of your role as a paramedic, it also restricts you from performing any other role within the Queensland Ambulance Service (QAS) that impacts on the delivery of services.

Mr Roche was invited to use up available leave balances pending the finalisation of the allegations against him.

Mr Roche appealed against the decision to terminate his suspension with pay to the Queensland Industrial Relations Commission – Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 334 (28 November 2023).  The case was complicated by the fact that during the time between his first suspension and subsequent decisions, various suspension provisions in the Ambulance Service Act 1991 (Qld) were repealed and replaced by provisions Public Sector Act 2022 (Qld). The question before the Commission was (at [18]) whether the decision was ‘fair and reasonable’.   A decision to suspend an employee on full pay did not require consideration of ‘natural justice’ but a decision to suspend an employee without pay did ([37]).  The final outcome of suspension ([37]) is to be:

  • suspension is lifted and the employee returns to normal duties, or
  • suspension is lifted and management or discipline action is taken, or
  • suspension is lifted during or at the conclusion of a disciplinary process, or
  • the employee separates by resignation or termination.

The appellant, Mr Roche, argued that the decision was in effect to suspend him without pay and this was not reasonable because (at [41]):

  • He is entitled to the presumption of innocence;
  • QAS failed to consider, as they were required to consider, whether he could ‘work in alternative area of QAS (eg Fleet) or undertake host employment in other government agencies or departments’;
  • He was denied ‘procedural fairness’ in that he was not invited to show cause why the decision to terminate his suspension on pay should not have been made.
  • Resultant financial hardship and emotional distress

The Commission’s decision

Commissioner McLennan upheld Mr Roche’s appeal.

When he had been suspended under the Ambulance Service Act had had been advised that the grounds for suspension were that he was ‘liable to discipline’ ([44]). With the repeal of the relevant provisions under that Act his suspension was reissued on 9 March 2023 under the Public Service Act.  There are two grounds for suspension set out in s 101(1).  They are either:

(a) the employee is liable to discipline under a disciplinary law; or

(b) the proper and efficient management of the entity might be prejudiced if the employee is not suspended.

The letter advising him of his continued suspension referred to s 101(1)(b), not s 101(1)(a).  It is not explained why the suspension did not refer to 101(1)(a) when that would have been consistent with the reasons given for the original suspension. Commissioner McLennan noted (at [51]) that the Public Sector Act s 104 only allowed for suspension without pay where the suspension was made under s 101(1)(a), not s 101(1)(b). She said (at [52]-[53]):

… while the default position is taken to be ‘suspension with pay’, it is nonetheless open to the chief executive to decide otherwise, only if satisfied of the relevant criteria. The first criterion being that the suspension is under s 101(1)(a) – that is not the case here. The Appellant was notified by QAS on 9 March 2023 that his suspension was pursuant to s 101(1)(b) of the PS Act. There is no need to go on to examine the second criteria set out at section 101(4)(b) because the Appellant’s suspension was not reissued under s 101(1)(a).

Simply put, s 101(4) means that the Appellant is entitled to remain suspended from duty on full remuneration because the suspension notice was reissued pursuant to s 101(1)(b). Section 101(4) provides no capacity to suspend the Appellant without pay in circumstances where his suspension notice was not given under s 101(1)(a).

The respondent ambulance service argued that they were not suspending him without pay. Rather they were lifting his suspension but given his registration was suspended he could not return to work but could draw on any accrued leave.  Commissioner McLennan rejected that as it was not consistent with one of the possible outcomes of suspension quoted above. She said (at [57]) ‘… cancelling the paid suspension and ‘inviting’ the Appellant to be paid from his own leave accruals (until those are exhausted presumably, and such payment then stops) is not one of the final outcomes’ permitted under the Act.

As an aside, I would think it is arguable that the decision was a decision where ‘suspension is lifted and the employee returns to normal duties’, but immediately had to take leave as he could not perform those duties.  That argument was not expressly considered.

Commissioner McLennan went onto say (at [58]) that even if her analysis was wrong:

… the Respondent’s ability to make a different decision about the terms of the Appellant’s suspension from duty is not an unfettered power.  Such decision must be fair and reasonable.  It should only be exercised in limited circumstances – and in a way consistent with the mandatory requirements (in particular, natural justice)…

What the respondent was required to do, and did not do, was set out in the legislation. A notice had to include details of appeal rights, had to identify ‘what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options’.  He had to be given ‘natural justice’ which requires fundamentally that a person be given a reasonable opportunity to make their case to a decision maker and their submissions will be considered before an adverse decision is made (see [63] for a more detailed explanation of the requirements of natural justice].

Guidance for decision makers confirmed the need to invite people to ‘show cause’ and to give at least 7 days for an employee to response to a show cause notice.  At [67] Commissioner McLennan said:

I have carefully reviewed the application of natural justice in the Appellant’s case.  In my view the Appellant was not afforded natural justice, as there were several deficiencies in the process:

  • The Appellant was not afforded procedural fairness, in relation to the cancellation of his suspension on full pay (where the ‘final outcome’ was other than a return to work, resignation or termination of employment).
  • The Appellant was not afforded procedural fairness, in relation to a decision to effectively place him on unpaid suspension.  He was not invited to show cause as to why the suspension should not be unpaid.
  • The QAS correspondence dated 24 March 2023 did not contain information as to the Appellant’s appeal rights.
  • The chief executive is required to “provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice”.  That is a requirement to hear the Appellant before a decision is made.  It is not the same as giving the Appellant 7 days’ notice of the decision to change the terms of the suspension from ‘suspension from duty on full remuneration’.
  • The Respondent’s submission that some representations were nonetheless made on the Appellant’s behalf on the evening of Friday 24 March 2023, in response to the QAS correspondence, does not discharge the mandatory requirement to give the Appellant an opportunity to be heard before a decision is made.
  • It was not open to the chief executive to decide that the Appellant ought not be suspended from duty on full remuneration because his suspension was not issued under section 101(1)(a) of the PS Act. That is because suspensions issued under s 101(1)(b) may only be on full remuneration, pursuant to s 101(4) of the PS Act.

In considering what was ‘fair and reasonable’ Commissioner McLennan noted (at [76]-[77]) that if the decision were to stand ‘the Appellant would be lurched into dire straits financially and denied the income he relies on for an undefined period’ and this would happen without being given the opportunity to be heard.  She also noted (at [78]) that the period of suspension with pay had been significantly shorter, that is it was ‘less favourable treatment than extended’ to two teachers who had also been suspended pending the outcome of similar charges.

The Commissioner reminded us:

People are presumed innocent until the required standard of proof has been discharged to determine otherwise. The proceedings may yet exonerate the Appellant. We do not know.

The Commission determined that the decision was not fair and reasonable and it was set aside.

Conclusion

Being as generous as one can one might infer that the decision makers at QAS were confused by the introduction of new suspension provisions under the Public Sector Act. They further, given them the benefit of the doubt, presumably believed that they were not moving from suspension with pay to suspension without pay but rather from suspension to no suspension save that Mr Roche could not return to work as his registration had been suspended.

Being less generous one might infer that they saw an opportunity, when notified that Mr Roche’s registration had been suspended, to avoid continuing to pay him without having to go through the natural justice process by relying on the decision of the Health Ombudsman to have the effect that they wanted.  But, said the Commission, changing his status had to be ‘fair and reasonable’ and this decision was not.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.