By Catherine Ngo Content writer, presenter and podcaster
The Queensland Industrial Court recently handled a case involving a teacher facing criminal charges. Despite his subsequent acquittal, the teacher was suspended without pay for 16 months. The court's decision provides valuable considerations on the interpretation of relevant directives and the rights of employees during suspension periods.
Background
A high school teacher who had been employed at the school since February 2015 was charged with alleged sexual offences in August 2020. These offences occurred in a private residence and were unrelated to his employment. As a result, the teacher was suspended from duty with pay on August 13, 2020.
After 17 months, the teacher was required to demonstrate why he should not be suspended without pay. Despite his response to the show cause notice, he was suspended without pay on February 3, 2022. This suspension was later extended on multiple occasions.
The teacher faced trial in the District Court and was acquitted of all counts on March 8, 2023. However, his teaching registration was still suspended.
The teacher claimed he was entitled to reimbursement for lost wages during his suspension, arguing that he was still "available to work" despite his suspended teaching registration. However, his employer, the Department of Education, argued that he was not eligible for reimbursement because he could not teach during the suspension.
Seeking reimbursement for lost wages
Following the acquittal, the worker sought reimbursement of his salary for the time he was suspended without pay. The Department of Education determined that the worker was not eligible for reimbursement based on the terms of Suspension (Directive 06/23).
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, 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 teacher appealed the judgement to the Queensland Industrial Relations Commission (QIRC), which ruled in his favour. The State then counter appealed the QIRC's decision to the Industrial Court of Queensland.
Interpretation of "available to work"
The Industrial Court of Queensland questioned the QIRC's interpretation of the Directive, specifically in relation to the phrase "available to work during the period of suspension".
In examining the employment contract, the court evaluated two primary questions:
- Does "available" imply physical availability to work or encompass an employee's physical capability and legal authorization to perform their duties?
- Does "work" refer to all forms of work or solely to the specific tasks outlined in the employee's contract?
The court clarified that clause 10.5 does not necessitate an employee's legal right to perform the specific work they were hired to do to be deemed relevantly "available." This requirement is not a prerequisite for remuneration payment to a suspended employee with continued pay.
The court ruled in favour of the worker
The court ruled in favour of the teacher finding that he was "available to work" during the suspension period. The court said, “He 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…..he remains at hand to work and is not relevantly 'unavailable'."
The court clarified that "work" in this context is not limited to the specific job the employee was hired for (i.e. the teaching position).
"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 suspended from duty,' the term 'duty' is not defined, but taken in context, it must mean 'all work'."
The court dismissed the appeal, upholding the decision of the QIRC that the worker was entitled to reimbursement of lost wages during the suspension period. The court stated that clause 10.5 of the Directive did not preclude the worker from receiving reimbursement of remuneration during the suspension period.
Read more about the judgement here: Johnston v State of Queensland (Department of Education) [2024]
