Tabart v State of Queensland (Queensland Health)
[2021] QIRC 365
•14 September 2021 14 September 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Tabart v State of Queensland (Queensland Health) [2021] QIRC 365 Tabart, Pearl v State of Queensland (Queensland Health) |
CASE NO: | PSA/2021/326 |
PROCEEDING: | Public Service Appeal – Appeal against a suspension without pay decision |
HEARD ON: DELIVERED ON: | 14 September 2021 14 September 2021 |
MEMBER: HEARD AT: | Pidgeon IC Brisbane |
OUTCOME: CATCHWORDS: | The appeal is dismissed PUBLIC SERVICE APPEAL - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where the appellant appeals a decision to suspend her without pay - where the appellant is a casual worker - whether a decision to suspend appellant had been made - whether to dismiss the appeal |
| LEGISLATION: | Industrial Relations Act 2016, s 562A Public Service Act 2008, s 194 |
Reasons for Decision (ex tempore)
COMMISSIONER: Thanks everyone. Thank you for that time that you’ve given me just to consider what I’ve heard this morning. We’re back on the record and I’m just going to provide some words by way of a decision which we will use to put into a written decision that can be provided to the parties. So it may sound, Ms Tabart, like I’m saying some things that I already know or we’ve already covered but it’s for the record for the decision. It’s my understanding that Ms Tabart commenced casual employment with the respondent on or around the 4th of May 2021 and Ms Tabart has lodged a public service appeal against a suspension without pay by way of an appeal notice filed in the Commission on the 9th of September 2021. However, the decision that’s attached to that appeal notice is regarding a final decision at the end of a process to remove Ms Tabart from the casual pool. Ms Tabart was a casual employee, as I’ve said, and as a result of a complaints process or a review underway resulting from Ms Tabart’s conduct, she didn’t receive any casual shifts after the 29th of June 2021. I note from the submissions that have been made that this did not constitute a suspension for the purposes of the relevant section of the Public Service Act.
At the hearing this morning, Ms Tabart explained that to her it felt like a suspension and I accept that not receiving shifts and still being technically on the roster may have had that practical effect for Ms Tabart, however the fact remains that there was no decision to suspend as such and therefore an appeal against the suspension – or a suspension is unable to be made. But to avoid being overly technical, I looked to the appeal notice which clearly indicates that Ms Tabart’s seeking loss of earnings for the period of time that she says was the protracted time that the review was undertaken and she wasn’t receiving shifts. The loss of earnings in that regard is not something that I can consider as a part of this appeal. Further to that, it may have been possible for Ms Tabart to raise her concerns with regard to that by way of a grievance or a dispute or a different type of appeal. However, that’s not the matter that’s before me which is PSA/2021/326, as I’ve already stated, the appeal notice that’s before me.
If an appeal were to be made regarding the non-offering of shifts, for want of a better term, while the review was being undertaken, I note that if that was going to happen by way of a public service appeal it would have had to have been done within 21 days of the 26th of July or come here in a – as a different type of matter. So I’ve got a concern which is the jurisdictional concern. I don’t think I’ve got jurisdiction to hear the appeal given that I don’t believe there’s been a suspension decision. And then, having heard – and sorry, under section 562A of the Industrial Relations Act 2016, that part of the Act says the Commission may decide not to hear particular public service appeals. And it says that I can only decide that – that I’ll only decide to hear an appeal if I’m satisfied that the – that the appeal has standing in relation to being a decision under directive under the Act. At 562A subsection (3), it says:
the Commission may decide it will not hear a public service appeal against a decision if: (b) the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal is (1) frivolous or vexatious; or (2) misconceived or lacks substance; or (3) should not be hear for another compelling reason.
Now, I definitely don’t think that this appeal is frivolous or vexatious and it certainly hasn’t been suggested by the respondent that that is the case. Ms Tabart is a non-represented person and, as she’s said earlier in her submissions, she made best efforts as she could to decide what the best way forward was and she decided that this was the way. So it’s certainly not a frivolous or vexatious appeal. But I do think that the appeal is misconceived. I don’t think it can be brought as it’s been brought. And in terms of “shouldn’t be heard for another compelling reason”, I’ve already said I’m concerned that there is no jurisdiction and that’s a compelling reason, in my view, to not hear the appeal. So I note Ms Tabart’s comments about not particularly understanding the system or the bureaucracy and not being able to avail herself of legal advice in that regard.
What I’d note on that is that in my experience government departments and HR sections are often willing to provide an employee with some advice about what their options are and often that material is available on intranets or other – there’s other avenues for people to be able to find out. There’s information on the QIRC website about appeals and, obviously, it’s a difficult task for an individual to navigate the Act and so I understand that. And people often avail themselves of union membership or information from colleagues who might be union representatives or have some knowledge of what the processes are. In this case, Ms Tabart, I think that you’ve availed yourself as well as you could with the information that you had before you but this isn’t an appeal that I can hear. And, for that reason, I’m dismissing the appeal
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