Suspension notices under the Public Service Act 2008
In the recent decision of the Queensland Supreme Court in Walters v Hanson & Ors  QSC 216 a decision to suspend an employee from duty under s 137(1) of the Public Service Act 2008 (PS Act) was quashed on the basis that the notice of suspension did not state when the suspension was to end.
The employee, Professor Walters, is the Director of Cardiology at the Prince Charles Hospital which forms part of the Metro North Hospital and Health Service. Professor Walters was suspended on several occasions, the first of which was the subject of previous litigation in his favour.
The s 137 suspension decision, the subject of review in Walters v Hanson, was made on the basis that there were concerns about Professor Walters breaching the Public Interest Disclosure Act 2010 by way of him taking a reprisal. The suspension notice stated the period of suspension in the following terms:
"Your suspension will remain in place until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered, unless otherwise determined."
In quashing the suspension decision, the Supreme Court found that the suspension notice was non-compliant with section 137(2) of the PS Act.
Section 137(2)(a) of the Public Service Act 2008
It is a requirement of s 137(2)(a) that a suspension notice must state when the suspension starts and ends. A similar provision is found in s 192(2)(a) in respect of suspension decisions where a public service employee is liable to discipline.
In Walters v Hanson, the Supreme Court found that:
- The period of suspension was expressed in a temporally indeterminate way because its duration was uncertain.
- Section 137(2) requires the period of suspension – that is when the suspension starts and ends – to be stated by reference to dates or in terms of its duration.
- Section 137(2) requires the decision maker to estimate and state the duration of the suspension with certainty. The fact that section 137(9) allows the decision-maker to cancel the suspension at any time accommodates an overestimate in the nomination of the duration of the suspension.
- Even if a suspension notice may validly state when a suspension may start and end by reference to events, including in the notice the phrase “unless otherwise determined” rendered the notice non-compliant with s 137(2) because it did not state when the suspension was to end in any ascertainable way.
- Sufficient certainty will not be achieved by notifying an employee that their suspension will end upon the happening of an event which will occur at an unidentifiable date in the future; and
- It may be possible for an employee to be notified with sufficient certainty of when their suspension is to start and end by reference to events if, for example, the employee is able to control the timing of those events.
Tips for Suspension Notices (following Walters v Hanson)
- State an end date for the suspension or clearly state its duration in weeks or months.
- The duration of the suspension may be generous as the decision-maker can cancel the suspension any time prior to the end date. However, a s 137 suspension cannot be longer than is reasonably necessary to avoid the prejudice.
- Do not include the phrase “unless otherwise determined” when stating the period of the suspension.
- Do not state the suspension will end by reference to an event which will occur on an unidentifiable date (e.g. when the investigation or discipline process is complete).
- When an investigation or discipline process will not be finalised before the suspension end date, the decision-maker must make a fresh suspension decision before the end date if the suspension is to continue.
- A fresh suspension decision must consider all statutory requirements e.g. alternative duties; and
- A fresh suspension decision should give reasons for the suspension (or adopt previous reasons given by the decision-maker) and provide a brief explanation as to why a further suspension is necessary.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 6 August 2020
Author: Assistant Crown Solicitor, Fiona Black