Ha v State of Queensland (Queensland Health)

[2022] QIRC 395

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ha v State of Queensland (Queensland Health) [2022] QIRC 395

PARTIES:

Ha, Thi Nha Thi
Applicant

v

State of Queensland (Queensland Health)
Respondent

CASE NO:

B/2021/95

PROCEEDING:

Application to recover unpaid wages

DELIVERED ON:

13 October 2022

HEARING DATES: 

On the papers

MEMBER:

McLennan IC

ORDER:

The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO RECOVER UNPAID WAGES – where applicant was suspended without remuneration – where applicant did not file a Public Service Appeal with respect to suspension without remuneration decision – where applicant claims unpaid wages for the period of time she was suspended without remuneration – where applicant resigned – consideration of "wages"

LEGISLATION AND OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 386, s 475

Public Service Act 2008 (Qld) s 187, s 189,
s 191, s 194, s 196

Reasons for Decision

Relevant background

1. Miss Thi Nha Thi Ha (the Applicant) commenced employment as a Registered Nurse with the West Moreton Hospital and Health Service (WMHHS) on 21 May 2018.

2. The Applicant was subject to a six-month probation period until 21 November 2018. On 15 November 2018, WMHHS extended the probationary period by three months until 15 February 2019 due to performance concerns.

3. On 21 May 2019, the Applicant was placed on a performance improvement plan as a result of her poor performance.

4. By letter dated 13 June 2019, WMHHS advised the Applicant that due to serious allegations regarding her level of competency and her failure to pass mandatory training modules, she would be suspended on full pay effective immediately in accordance with s 189(1) of the Public Service Act 2008 (Qld) (the PS Act).[1]

   [1] As it then was.

5. By letter dated 12 July 2019, WMHHS asked the Applicant to show cause why disciplinary findings should not be made against her under s 187(1) of the PS Act[2] in relation to the following allegations:

   ·on 30 May 2019, the Applicant failed to successfully complete the mandatory training module Intermediate Life Support; and

   ·the Applicant failed to improve her performance to the level expected of a Registered Nurse.

   [2] As it then was.

6. By letter dated 12 July 2019, the Applicant was also asked to show cause why she should not be suspended without normal remuneration in accordance with s 191 of the PS Act.[3]

   [3] As it then was.

7. By letter dated 6 August 2019, the Applicant responded to the show cause notice dated 12 July 2019.

8. By letter dated 6 September 2019, WMHHS through Ms Rachel Phillips, Acting Executive Director of Mental Health and Specialised Services, advised the Applicant:

   ·that both allegations had been found to be substantiated;

   ·she was giving serious consideration to imposing the penalty of termination of employment;

   ·the Applicant was afforded seven days to respond to that proposed penalty;

   ·she was suspended without normal remuneration; and

   ·the Applicant could file an appeal with the Queensland Industrial Relations Commission within 21 days of the date of the decision.

9. The Applicant did not lodge a Public Service Appeal with respect to the decisions.

10. On 3 October 2019, the Applicant submitted her resignation effective as of 17 October 2019.

The Application

1. On 5 November 2021, the Applicant filed a 'Form 15 – Application to recover unpaid wages, superannuation contributions etc' at the Industrial Registry (the Application).

1. On p 3 of the Application, the Applicant indicated the details of the decision sought in the terms below:

   Contract signed for 5.7 paid at 5.5 and 5.6
             Statement of service was inaccurate does not reflected the amount of working hours
             Statement of service state worked for 836 hr
             Pay slip showed 2861 hr

2. Page 6 of the Application requires particulars of the amounts payable. Under "Annual leave payable", the Applicant stipulated the unpaid amount of $20,050.

   Question to be decided

3. This matter was conferenced before another Industrial Commissioner on 29 November 2021, 9 February 2022 and 1 April 2022.

4. Upon review of various correspondence between the parties in the lead up to the second conference on 9 February 2022, it appears that many of the issues raised in the Application (albeit unclear on the Application itself) were resolved between the parties.

5. However, as the three conferences did not result in full resolution, the matter was allocated to me to hear and decide.

6. On 12 May 2022, I mentioned the matter because the issues contained in the Application and correspondence required some clarification.

7. At the mention, I obtained confirmation from both parties that:

   ·the parties had reached agreement on some aspects of the Application at conference;

   ·this is now only a claim for unpaid wages for the period that the Applicant was suspended without pay;

·the Applicant is seeking the Respondent pay her for the period of time she was suspended without pay; and

·that period of suspension without pay excludes the portion of time for which the Applicant was paid sick leave.

1. Also at the mention, I obtained agreement from both parties that I would hear this matter in two parts, being:

   ·firstly determination of whether the Applicant should have been paid for the period she was suspended without pay; and if so –

   ·determination of how much the Applicant should have been paid.

2. This Decision pertains to the first question of whether the Applicant should have been paid for the period she was suspended without pay.

   Consideration

   No appeal made through Public Service Appeal pathway

3. Quite simply, filing a Form 15 - Application to recover unpaid wages, superannuation contributions etc is not the appropriate pathway to dispute the Respondent's decision to suspend the Applicant without remuneration.

4. If the Applicant objected to that course, she ought to have filed a public service appeal under s 194(1)(bb)[4] of the PS Act against the Respondent's decision within 21 days of it being given.

   [4] Public Service Act 2008 (Qld) s 194(1)(eb), as it then was.

5. In correspondence dated 6 September 2019, the Respondent included a statement about the Applicant's appeal rights to that effect. 

6. The Applicant did not file a public service appeal against the Respondent's decision to suspend her without pay within the 21-day period – or at all. The Applicant contends that "as per appeal guideline I cannot appeal if I am on probation." It appears the Applicant is referring to the Commission's Public Service Appeal Guide which stipulates that a decision about probation and a decision to terminate the employment of a public service officer employed on probation cannot be appealed. However, s 196(bb) of the PS Act specifically provides that a public service employee the subject of the decision may appeal against a suspension without pay decision.[5]

   [5] See also s 196(eb) of the PS Act with respect to fair treatment decisions, the relevant provision at the time.

7. Rather, the Applicant submitted her resignation on 3 October 2019. As at 17 October 2019, the Applicant was no longer a public service employee.  In Venables v State of Queensland (Queensland Health),[6] Deputy President Merrell determined not to hear an appeal because of the compelling reason that the Appellant was no longer an employee and any decision on appeal would have no practical effect on the Appellant's employment.

   [6] [2022] QIRC 137.

   Jurisdictional issue

8. The Respondent submits that the Commission does not have jurisdiction to determine this matter as there are no "unpaid wages" required by s 475 of the IR Act.

9. I agree with the Respondent's position, for the reasons that follow.

10. The Applicant filed a 'Form 15 – Application to recover unpaid wages, superannuation contributions etc' on 5 November 2021.

11. Such applications may be made pursuant to ss 475 and 386 of the IR Act. Both of those provisions pertain to an Application to recover "unpaid wages" within six years after the amount claimed becomes payable.

12. The definition of "wages" then becomes important.

13. Schedule 5 'Dictionary' of the IR Act defines "wages" as:

(a)     an amount payable to an employee for—

(i)       work performed, or to be performed, by the employee; or

(ii)      a public holiday; or

(iii)     leave the employee is entitled to; or

(iv)     termination of employment; or

(b)     a salary; or

(c)      an amount payable from wages for the employee, with the employee’s written consent.

1. Relevantly, s 386(5)(a) of the IR Act requires the Commission to order the apparent employer to pay the wages claimed unless the apparent employer proves that the work was not done.

2. The outcome the Applicant seeks is to be paid for the period that she was suspended without pay, minus the portion of time of paid sick leave in that period. 

3. In my view, the Applicant's claim cannot succeed because:

   ·the Applicant did not perform work during the period of suspension without pay;

   ·no work was to be performed by the Applicant during the period of suspension

   without pay;

   ·therefore the amount claimed does not constitute "wages" as defined under the IR

   Act;

·         so the Commission cannot order the payment of the amount claimed under

s 475(1)(a) of the IR Act; and

·neither can the Commission order the payment of the amount claimed under s 386(5)(a) in circumstances where the Applicant was not performing work during the relevant period.

1. To be clear, in this case the Applicant was suspended without pay.  In the relevant period, the Applicant did not perform work - nor was work to be performed.  The amount claimed by the Applicant does not meet the definition of "wages" in the IR Act.

2. For those reasons, the Applicant's claim is dismissed.

1. I order accordingly.

Order

1.The application is dismissed.