After acquittal, worker says he was available to work during suspension
The Industrial Court of Queensland recently dealt with a case involving a teacher who was suspended without pay due to criminal charges, but later acquitted. The court's decision highlighted important aspects of employee rights.
The worker, who had been suspended without pay for 16 months, argued that he should be reimbursed for lost wages following his acquittal.
He contended that despite his suspended teaching registration, he was still "available to work" as per the relevant directive. His employer, the Department of Education, maintained that the worker was not eligible for reimbursement due to his inability to teach during the suspension period.
This decision provides important clarity on the interpretation of certain directives and the rights of employees during periods of suspension.
Worker’s suspension and criminal charges
The worker, a schoolteacher, was employed at a state high school since February 2015. In August 2020, he was charged with several sexual offences allegedly occurring in a private residence, unrelated to his employment. Following this, the worker was suspended from duty with pay on 13 August 2020.
After 17 months, the worker was required to show cause why he should not be suspended without pay. Despite responding to the show cause notice, the worker was suspended without pay on 3 February 2022. This suspension was extended multiple times.
The worker faced trial in the District Court and was acquitted of all counts on 8 March 2023. However, his teaching registration remained suspended by the Queensland College of Teachers.
Dispute over reimbursement
Following the acquittal, the worker sought reimbursement of his salary for the 16 months he was suspended without pay. The Department of Education determined that the worker was not eligible for reimbursement based on the terms of Directive 06/23 Suspension.
The department argued that the worker was not available to work during the suspension period due to his suspended teaching registration.
They cited Clause of the Directive, which states:
"If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension."
The worker appealed this decision to the Queensland Industrial Relations Commission (QIRC), which ruled in his favour. The QIRC's decision was then appealed by the State to the Industrial Court of Queensland.
Interpreting "available to work"
The Industrial Court of Queensland determined whether the QIRC had erred in its interpretation of the Directive, specifically the phrase "available to work during the period of suspension".
The court said that the Directive operates generally for public service employees, not just those governed by the Education (Queensland College of Teachers) Act 2005. It noted that the Public Sector Act 2022 provides context for interpreting the Directive.
The court considered two main questions:
- Does "available" mean physically available to perform work, or does it mean the employee is physically able and legally entitled to do the work?
- Does "work" mean any work, or specifically the work the employee was contracted to perform?
In its analysis, the court said:
"There is, in my view, nothing to suggest that clause 10.5 would require an employee to be legally entitled to perform the specific work they were employed to do in order to be relevantly 'available'. That is not a precondition to payment of remuneration to an employee who is suspended with remuneration."
The court's decision
The court ultimately ruled in favour of the worker, finding that he was indeed "available to work" during the suspension period. The court said:
"[The worker] has done all things necessary to make himself available to work. He is 'at hand'. There is an intervening statutory prohibition which has arisen preventing him from working. As explained, on a proper construction of the Directive, he remains 'at hand' to work and is not relevantly 'unavailable'."
The court also clarified that "work" in this context is not limited to the specific job the employee was hired for:
"The 'work' for which an employee must be 'available' is not limited to the work for which the employee was employed. An employee is employed in a particular position to perform particular work. [If] the employee is suspended 'from duty,' the term 'duty' is not defined but taken in context it must mean 'all work'."
The court further explained:
"Where [the chief executive] is specifically required to consider roles alternate to that for which the employee is employed, it can't be that an employee is not 'available for work', only because they can't perform the specific work for which they were employed."
In conclusion, the court dismissed the appeal, effectively upholding the QIRC's decision that the worker was entitled to reimbursement of remuneration for the period of suspension. The court stated:
"For the reasons explained, clause 10.5 of the Directive did not disentitle [the worker] to reimbursement of remuneration over the period of his suspension."
