I have previously reported on the case of Mark Roche – see Suspended QAS paramedic wins right to continue to be paid pending the outcome of criminal charges (December 3, 2023). His case has again returned to the Industrial Relations Commission in Roche v State of Queensland (Queensland Ambulance Service) (No. 2) [2024] QIRC 230 (17 September 2024).

The Public Sector Act 2022 (Qld) s 101(1) says:

A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—

(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.

Mr Roche had been suspended when QAS were advised he was facing a criminal charge.  Later the Health Ombudsman (OHO) suspended his registration. QAS moved to change his suspension from suspension with pay to suspension without pay. In the first hearing (reported in my first post), Mr Roche was successful in his argument that QAS could not move to suspend him without pay because the notice of suspension said he had been suspended under s 101(1)(b) of the Public Sector Act 2022 (Qld).  Section 101(4) makes clear that suspension without pay was only possible if the suspension was under s 101(1)(a).

Having lost the case QAS issued a new notice of suspension, this time relying on s 101(1)(a).   The dates in the judgment appear to be wrong. Making inferences from the discussion it appears that QAS reported that they were changing the basis of Mr Roche’s suspension from s 101(1)(b) to s 101(1)(a) on 19 December 2023 (in the judgement at [5] it says 19 December 2024).  On 7 March 2024 (in the judgment at [6] it says 2023) QAS wrote to Mr Roche inviting him to show cause why his suspension should not be converted to suspension without pay.  Mr Roche responded on 28 March 2024 (but reported as 2023 at [6]).   On 11 April 2024 Mr Roche’s suspension was converted to suspension without pay.   Mr Roche sought to appeal against both the decision to change the clause under which he was suspended (the December 2023 decision) and the decision to convert his suspension to suspension without pay.

Mr Roche argued that he was not given notice of the intention to change the basis upon which he was suspended nor to make submissions with respect to that decision and that this was an impermissible denial of natural justice (see [11]).  Further he argued (at [13]):

… that the presumption of innocence precluded the chief executive from reasonably believing that the Appellant was liable to discipline. In summary, the argument is that if the Appellant is presumed to be innocent until proven guilty, and he is not yet proven guilty, then there is no way the chief executive could have formed a reasonable belief as to wrongdoing of such a degree that rendered the Appellant liable to discipline.

There are strict time limits in industrial law.  Mr Roche’s appeal to the Tribunal was lodged on 1 May 2024 and claimed to be an appeal against the 11 April 2024 decision to suspend him without pay.  If he had wanted to appeal the decision, made in December 2023 to change the grounds of suspension from s 101(1)(b) to s 101(1)(a) that appeal was out of time ([22]).  There were insufficient grounds to allow an extension of time to allow the late filing of an appeal.   In any event the Commission accepted

…  the Respondent’s submissions that the Appellant’s case has poor prospects. The Respondent has afforded the Appellant more than enough time, information and opportunities to understand and respond to the allegations against him. The Respondent has also been clear that it was suspending the Appellant because it believed he was liable to discipline under a disciplinary law. It is clear to me that the Respondent afforded the Appellant procedural fairness.

As for the question of whether the Chief Executive could believe that Mr Roche ‘is liable to discipline’ whilst criminal charges are still pending, the Commission said (at [33]-[34]):

I am therefore of the view that “liable” should be construed broadly within the context of section 101(1)(a) of the PS Act…. Sections 101 and 91 provide for suspension occurring before any findings are made, or indeed any substantial investigation has occurred.

In the present case, I conclude that the power to suspend under section 101(1)(a) was enlivened once the relevant chief executive formed a reasonable belief that, if the allegations were proven, then the chief executive would be satisfied that the Appellant engaged in misconduct. As the definition of liable in this context permits mere allegations to create liability, there need not be a finding of any wrongdoing at that point for an employee to be “liable” to discipline. All that is needed is a reasonable belief that there are allegations that exposed the Appellant to discipline under a disciplinary law… That does not mean, in the case of criminal charges, that the relevant employee must be convicted before they are liable to being disciplined. Such an employee may still be disciplined even if a criminal charge results in an acquittal. A failure by the Crown to overcome the high burden of proving beyond reasonable doubt still leaves open the conclusion by an employer that misconduct occurred on the balance of probabilities. That state of being liable to discipline continues from the time of the alleged acts up to point where a finding of wrongdoing has been made, and beyond.

And at [35]:

In the circumstances, it is not hard to see how the chief executive of the Respondent could form a reasonable belief that the Appellant was exposed to discipline for engaging in inappropriate or improper conduct in a private capacity that reflected seriously and adversely on the employing entity. The Appellant had been charged with serious offences … and had been deregistered by the OHO as a consequence of the charges. In those circumstances, it was reasonable for the chief executive to form the belief that an event had occurred in the form of a genuine allegation of wrongdoing, which exposed the Appellant to legal consequences, and that the Appellant was therefore liable to discipline under a disciplinary law.

The Commission determined that it could not review the decision of December 2023 as any appeal was out of time. As for the decision of April 2024 to convert his suspension to suspension without pay the Commissioner said (at [51]):

… The nature of the criminal charges and the Queensland Police Service’s reasonable suspicion self-evidently invites a fair and reasonable conclusion that the Appellant was liable to discipline. It was also open to the decision-maker to find that the prolonged prosecution of criminal charges that had no clear end date in sight was preventing the discipline process from progressing. It was relevant to consider that AHPRA had deregistered the Appellant, which rendered him unable to practice paramedicine or perform non-clinical work. It was also open to decision-maker to find that it was an inappropriate use of public money to continue the paid suspension in the circumstances because it may undermine public confidence in the Respondent. It was also relevant to consider that the Appellant would be entitled to backpay if the discipline process did not lead to dismissal and, conversely, that the Respondent could not recover the cost of a suspension on pay if dismissal were the outcome. Each consideration and finding was fair and reasonable on my assessment. So too the overall conclusion deciding to suspend the Appellant without pay. I therefore find the Decision to be fair and reasonable.

Conclusion

Mr Roche’s appeal was dismissed and the decision to continue his suspension without pay was confirmed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.