Wilson v State of Queensland (Queensland Police Service)
[2023] QIRC 6
•6 January 2023 6 January 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Wilson v State of Queensland (Queensland Police Service) [2023] QIRC 006 |
PARTIES: | Wilson, Sara Elizabeth v State of Queensland (Queensland Police Service) |
CASE NO.: | D/2023/2 and PSA/2023/2 |
PROCEEDING: | Notice of Industrial Dispute and Public Service Appeal - Decision made under a Directive |
DELIVERED ON: HEARING DATE: | 6 January 2023 6 January 2023 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
| ORDERS: | The orders contained in paragraph [45] of these reasons for decision |
| LEGISLATION: | Directive 10/20: Independent Medical Examinations Industrial Relations Act 2016, s 9, s 261, s 451, s 562C and sch 5 Public Service Act 2008, s 137 s 174, s 175, s 178 and s 194 |
| APPEARANCES: | The Appellant by telephone. Mr G. Carthew of the State of Queensland (Queensland Police Service) for the Respondent. |
Reasons for Decision (ex tempore)
Introduction
Ms Sara Elizabeth Wilson is employed by the State of Queensland as a Client Service Officer, classification AO3, at Policelink. Policelink is part of the Queensland Police Service ('the Service).
On 12 December 2022, Ms Wilson was directed by Assistant Commissioner Ben Marcus of the Service, pursuant to s 175 of the Public Service Act 2008 ('the PS Act'), to submit to a medical examination to be conducted on 12 January 2023 by Dr Alastair Macleod, Consultant Psychiatrist ('the December medical examination decision').
By notice of industrial dispute filed on 3 January 2023, Ms Wilson takes issue with the December medical examination decision in that the decision provided that Ms Wilson could seek '… an internal review under or appeal of this decision' but that she had been denied the right to seek that internal review within the Service.
By appeal notice filed on 3 January 2023, Ms Wilson, pursuant to pt 7 of the PS Act, also appealed against the December medical examination decision. Ms Wilson contends that the December medical examination decision was not fair and reasonable because the decision directing her to submit to the medical examination by Dr Macleod was made in the absence of the conditions necessary to enliven s 174 of the PS Act being satisfied.
Both Ms Wilson's notice of industrial dispute and her appeal against the December medical examination decision were allocated to me for determination.
Given the urgency of the matter, namely, the direction that Ms Wilson is to be examined by Dr Macleod on 12 January 2023, I heard both matters today.
The notice of industrial dispute
The dispute, as notified by Ms Wilson, is that she has been denied the right to seek an internal review of the December medical examination decision.
Ms Wilson submits that she wants the right to seek an internal review of the December medical examination decision because the conditions necessary, to enliven the discretion of Assistant Commissioner Marcus to direct her to submit to a medical examination by Dr Macleod, are not present.
However, as stated earlier, Ms Wilson has, pursuant to pt 7 of the PS Act, filed an appeal against the December medical examination decision to this Commission in which, as I understand her appeal, she contends that the December medical examination decision is not fair and reasonable because the conditions necessary to enliven the discretion of Assistant Commissioner Marcus to direct her to submit to a medical examination by Dr Macleod were not present.
The notice of industrial dispute was given pursuant to s 261 of the Industrial Relations Act 2016 ('the IR Act'). For a notice of industrial dispute to be validly given to the Industrial Registrar, there must be an industrial dispute between, relevantly, an employer and employee which remains unresolved after the parties to the dispute have generally attempted to settle the dispute.
Schedule 5 to the IR Act defines 'industrial dispute' in the following terms:
industrial dispute means-
(a) a dispute, including a threatened or probable dispute, about an industrial matter; or
(b) a situation that is likely to give rise to a dispute about an industrial matter.
Schedule 5 to the IR Act defines 'industrial matter' by reference to s 9 of the IR Act.
Section 9 of the IR Act relevantly provides:
9 What is an industrial matter
(1)An industrial matter is a matter that affects or relates to-
(a)work done or to be done; or
(b)the privileges, rights or functions of-
(i)employers or employees; or
(ii)persons who have been, or propose to be, or who may become, employers or employees; or
(c)a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
(2)However, a matter is not an industrial matter if it is the subject of a proceeding for-
(a)an indictable offence; or
(b)a public service appeal.
It seems to me that, in substance, the matter the subject of the notice of industrial dispute given by Ms Wilson to the Industrial Registrar is her contention that the December medical examination decision was not validly made, because the elements in s 174(b) of the PS Act have not been met, and that Ms Wilson seeks to challenge the December medical examination decision by internal review on that basis.
Ms Wilson says that she had to commence the public service appeal because the limitation period, in the IR Act to commence such an appeal, was about to expire. That may be so.
However, as a matter of fact, the subject matter of the notice of industrial dispute is the same subject matter of the proceeding for Ms Wilson's public service appeal, namely, the public service appeal Ms Wilson filed on 3 January 2023.
In those circumstances, because of the operation of s 9(2)(b) of the IR Act, that subject matter cannot be an industrial matter within the meaning of s 9 of the IR Act.
As such, there can be no industrial dispute about the subject matter of Ms Wilson's notice of industrial dispute because:
·there can be no dispute about an industrial matter; and
·there can be no situation that is likely to give rise to a dispute about an industrial matter.
For these reasons, Ms Wilson's notice of industrial dispute is misconceived.
Even if I was wrong about this, and the notice of industrial dispute given by Ms Wilson was valid, I would not, as a matter of discretion, determine, by arbitration, the industrial dispute as notified by Ms Wilson for the reason that Ms Wilson has made an appeal under pt 7 of the PS Act about the same subject matter.
Section 194(1)(a) of the PS Act confers a right of the public service employee to appeal a decision taken under a directive. As such, Ms Wilson had the right to appeal against the December medical examination decision. This is because Directive 10/20: Independent Medical Examination must be observed in making a decision to direct a public service employee to submit to a medical examination by doctor pursuant to s 175 of the PS Act. Ms Wilson has exercised that right.
Pursuant to s 451(2)(c) of the IR Act, the Commission may make an order it considers appropriate in the performance of its functions.
In my view, the appropriate order to make is to dismiss the notice of industrial dispute made by Ms Wilson to the Industrial Registrar on 3 January 2023.
Ms Wilson's appeal against the December medical examination decision
The question in respect of this appeal was whether the December medical examination decision was fair and reasonable. Having regard to Ms Wilson's attack on that decision, the question is whether the conditions contained in s 174(b) of the PS Act were made out such that Assistant Commissioner Marcus' decision, namely, the December medical examination decision, was one that was fairly and reasonably made.
Chapter 5 of the PS Act deals with staffing. Part 7 of that chapter deals with mental or physical incapacity and relevantly provides:
174 Application of pt 7
This part applies to a public service employee if-
(a)the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing his or her 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.
175 Chief executive may require medical examination
The chief executive may-
(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.
The purpose of s 175 of the PS Act is derived from a consideration of s 178 of the PS Act. That section provides:
178 Action following report
(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-
(a)transfer or redeploy the employee; or
(b)if it is not reasonably practicable to transfer or redeploy the employee‑retire the employee from the public service.
(2)Subsection (1) does not limit the action that may be taken relating to the employee.
The purpose of s 175 of the PS Act is to provide the chief executive of a department with the ability to obtain a report of a medical examination by a doctor, to assist the chief executive to determine, to a state of reasonable satisfaction, if an employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.
It is only after the receipt of the medical examination report, and the consideration of that report, that the chief executive's discretion to take one of the actions referred to in s 178 of the PS Act is enlivened.
In the December medical examination decision, Assistant Commissioner Marcus relevantly stated:
I am aware of the following:
· You commenced sick leave from 4 July 2021, then provided a medical clearance to return to full duties from 19 August 2021.
· You performed three shifts from 28 August 2021 until 30 August 2021 and have since been continuously absent from the workplace since 31 August 2021.
· You have provided consecutive medical certificates issued by General Practitioner Dr Rob Ruberry, Dr Pav Chopra and Dr Eddie Hinch.
· In letter dated 6 April 2022, Dr Chopra indicated your current diagnosis is stress.
· Letter dated 24 November 2022, Dr Eddie Hinch which indicated "…still recovering from work related stress injury and thus I have recommended that she return to full duties from 11/02/2023. This time period is taking into consideration her progress to date.'
As such, pursuant to s.174 of the Public Service Act 2008 (PS Act), I am reasonably satisfied your absence since 31 August 2021 is caused by mental or physical illness or disability.
Ms Wilson's submissions
Ms Wilson submitted that recent events had overtaken the December medical examination decision of Assistant Commissioner Marcus. Ms Wilson pointed to the fact that she had, subsequently to Assistant Commissioner Marcus' decision, received a clearance for work from her General Practitioner, Dr Eddie Hinch. As I understand it, Dr Hinch provided a return to work certificate dated 23 December 2022 in which Dr Hinch opined that Ms Wilson was fit to return to full duties as of 24 December 2022.
Then it seems to be the case that Assistant Commissioner Marcus received that report and by an email he sent to Ms Wilson on 23 December 2022, Assistant Commissioner Marcus stated that there was a lack of detail in Dr Hinch's return to work certificate and that with that limited information, the Service was not satisfied that Ms Wilson could safely return to her position.
It was then the case that Assistant Commissioner Marcus stated that further questions needed to be developed for Ms Wilson to put to Dr Hinch so that the Service could be satisfied Ms Wilson could safely return to full duties. Assistant Commissioner Marcus then stated that pursuant to s 137(1)(a) of the PS Act, she was to be suspended on full remuneration from 24 December 2022 until 10 February 2023 so that Dr Hinch could provide the further particulars, as sought by the Service, so that the Service could make a decision as to whether or not Ms Wilson could safely return to work. Ms Wilson then submitted that yesterday, the Injury Management Specialist with whom she was dealing, indicated that there would be no progress on the questions she was to provide to Dr Hinch, for the purposes of the Service determining whether or not Ms Wilson could safely return to work, because of '… another matter' which seems to be the present proceedings before the Commission.
None of these assertions by Ms Wilson were disputed by the Service.
Ms Wilson submitted that because of these facts, the circumstances giving rise to the direction by Assistant Commissioner Marcus, that she attend the medical examination by Dr Macleod on 12 January 2023, were overtaken with the result that there was no requirement, in a practical sense, for her to attend that medical examination.
The Service's submissions
The Service submitted that there had been a history of Ms Wilson being absent from work and that attempts had been made by the Service to obtain medical information from Ms Wilson's various treating medical practitioners so that it could obtain clear information for it to make a decision about whether or not Ms Wilson could safely return to her position.
The Service submitted that it had been frustrated in obtaining the information and, as a consequence, various directions had been given to Ms Wilson in 2021 and 2022 to be examined by an independent medical practitioner pursuant to s 175 of the PS Act. The Service submitted that those circumstances had not changed and, as a result, Assistant Commissioner Marcus' decision dated 12 December 2022 remained fair and reasonable.
The December medical examination decision is now not fair and reasonable
In my opinion, the December medical examination decision of Assistant Commissioner Marcus is now not fair and reasonable.
At the time of Assistant Commissioner Marcus' decision dated 12 December 2022, it was not in dispute that Ms Wilson had been continuously absent from the workplace since 31 August 2021. Also, there was clear medical information before Assistant Commissioner Marcus which indicated that the reason for Ms Wilson's absence was due to 'stress'. While it was the case that by letter dated 24 November 2022 from Dr Hinch, his opinion was that Ms Wilson was still recovering from work-related stress and that he recommended she return to full duties from 11 February 2023, that opinion has been overtaken by the more recent opinion of Dr Hinch dated 23 December 2022.
Indeed, Assistant Commissioner Marcus then acted on that later opinion from Dr Hinch, dated 23 December 2022, by suspending Ms Wilson from duty on full remuneration pending the Service providing Ms Wilson with further questions to be put to Dr Hinch so that the Service can make a determination about whether or not she can safely return to work as opined by Dr Hinch in his return to work certificate dated 23 December 2022.
As a result of these facts, it seems to me that the basis upon which Assistant Commissioner Marcus made his decision on 12 December 2022, to direct that Ms Wilson be examined by Dr Macleod, has been overtaken. It now seems to be the case that Assistant Commissioner Marcus has formed the view that Ms Wilson may be able to return to work but that the Service is not in a position to make a final determination to allow her to return to work until further medical opinion is obtained from Dr Hinch as sought by the Service.
The circumstances upon which Assistant Commissioner Marcus made his decision to direct Ms Wilson be examined by Dr Macleod on 12 January 2023, by his decision dated 12 December 2022, no longer exist. That is, Ms Wilson's current absence from work is not caused by her mental illness or disability, but by the action of the Service to suspend her from duty pending receipt of further medical opinion from Dr Hinch so that the Service can make a decision about whether or not Ms Wilson can safely return to work.
In my respectful opinion, it is not the purpose of s 175 of the PS Act to require an employee to submit to a medical examination so that the relevant agency can obtain medical information about the employee's safe return to work.
It may be that the Service will not be satisfied by any further information provided by Dr Hinch, such that it can be satisfied that Ms Wilson can safely return to work. That is a matter for the future. It may also be that when Ms Wilson's suspension from duty on pay comes to an end, the circumstances are such that Assistant Commissioner Marcus may once again reasonably suspect that Ms Wilson's absence from duty is caused by mental illness or disability, such that his discretion to direct her to submit to a medical examination is, again, enlivened. Again, however, that is a matter for the future.
For the reasons I have given, I am not persuaded that it is fair and reasonable for Assistant Commissioner Marcus' decision dated 12 December 2022, that Ms Wilson be examined by Dr Macleod on 12 January 2023, to remain on foot. I will set aside the decision made by Assistant Commissioner Marcus dated 12 December 2022 that Ms Wilson submit to a medical examination by Dr Macleod on 12 January 2023.
Orders
I make the following Orders:
1. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, the Notice of Industrial Dispute given by Ms Wilson to the Industrial Registrar on 3 January 2023, in Case No. D/2023/2, is dismissed.
2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against in Case No. PSA/2023/2 is set aside.
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