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  • Unreported Judgment

Banovic v Queensland

 

[2019] QIRC 132

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Angela Banovic v State of Queensland, Department of Education [2019] QIRC 132

PARTIES: 

Banovic, Angela

(Applicant)

v

State of Queensland, Department of Education

(Respondent)

CASE NO:

GP/2019/15

PROCEEDING:

Application

DELIVERED ON:

6 September 2019

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDERS:

  1. Other than by expiration of the applicant's fixed term of employment, the respondent is restrained, until the hearing of the application or further order, from terminating the applicant's employment;
  1. Other than the suspension of the applicant's employment on normal remuneration, the respondent is restrained, until the hearing of the application or further order, from taking any disciplinary action against the applicant in relation to the allegation set out in the second show cause letter dated 12 July 2019;
  1. The respondent will take all necessary steps to locate alternative duties for the applicant to perform until hearing of this application or further order, and in doing so will have regard to the applicant's skills, experience, abilities and usual place of abode;
  1. The applicant, until hearing of this application or further order, must not unreasonably refuse any offer of alternative duties offered to her by the respondent;
  1. Unless or until suitable duties are provided to the applicant by the respondent, the applicant's employment is suspended on normal remuneration until hearing of the application or further order;
  1. The parties are at liberty to apply on the giving of 2 days notice;
  1. Costs of this application are reserved.

CATCHWORDS:

INDUSTRIAL LAW – INJUNCTION – INTERLOCATORY INJUNCTION – application to restrain the respondent from terminating the applicant's employment – serious case to be tried – balance of convenience

LEGISLATION:

Fair Work Act 2009 (Cth) s 341, s 342

Industrial Relations Act 2016 (Qld) s 284, 282, 285, 314, 473

Public Service Act 2008 (Qld) s 189

Workplace Relations Act 1996 (Cth) s 298K

CASES:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Dalley & Ors v Kelsey & Ors [2018] ICQ 006

Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

McDermott Australia Pty Ltd v Australian Workers Union [2011] FCA 303

Patrick Stevedore Operations No 2Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1

Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238

Shea v Truenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

Reasons for Decision

  1. [1]
    On 29 July 2019 the applicant filed an application seeking interlocutory and final relief. The application was accompanied with a supporting affidavit of the applicant filed on the same date.
  1. [2]
    The application included an application for relief in the form of an injunction. The application did not identify the statutory basis upon which the applicant relied. At a subsequent mention of the matter on 22 August 2019 the solicitors for the applicant confirmed that the statutory basis relied upon was s 314(1)(f) or alternatively, s 473 of the Industrial Relations Act 2016 (Qld) (the "Act").
  1. [3]
    The parties agreed to have the matter dealt with on the papers and written submissions were subsequently filed by each party.
  1. [4]
    At a mention of the matter on the 22 August 2019 the parties confirmed their desire to have the matter dealt with on the papers. At that time, all written submissions had been filed, and there was no request for the filing of further material including e.g. sworn evidence.
  1. [5]
    During the mention on 22 August 2019 the parties were invited to have discussions with respect to whether undertakings from the respondent might alleviate the need for the interlocutory orders sought by the applicant. The parties proceeded to hold such discussions over the following few days but regrettably were unable to reach agreement.
  1. [6]
    The applicant seeks the following interlocutory orders:
  1. The respondent is restrained until the hearing of the application or further order from terminating the applicant's employment.
  1. The respondent is restrained until the hearing of the application or further order from taking any action against the applicant in reliance upon or in connection with the privacy complaints and/or the Second Show Cause Notice.
  1. The respondent is to make a decision with respect to the First Show Cause Notice within 7 days and notify the applicant of the basis and outcome of the decision in writing 7 days after having made the decision.
  1. Any further or other order the Commission deems meet.
  1. Costs.

Statutory framework

  1. [7]
    Section 314 of the Act relevantly provides as follows:

314  Orders on deciding application

  1. Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313 — …
  1. an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
  1. [8]
    Section 473 of the Act provides as follows:

473  Power to grant injunctions

  1. (1)
    On application by a person under section 474, the commission may grant an injunction—
  1. (a)
    to compel compliance with an industrial instrument, a permit or this Act; or
  1. (b)
    to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
  1. (2)
    The injunction may apply to—
  1. (a)
    the officers or members of an organisation generally; or
  1. (b)
    particular officers or members of an organisation; or
  1. (c)
    a particular employer; or
  1. (d)
    a particular employee.
  1. (3)
    The commission must decide how notice of, and service of the injunction on, each of the persons to whom the injunction applies must be given.
  1. (4)
    Without limiting subsection (3), the commission may order that the notice, and substituted service of the injunction, be given by advertisement.
  1. (5)
    If a person to whom the injunction applies is given notice of the injunction, the person must comply with the injunction.
  1. (6)
    If the injunction applies to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the injunction.
  1. (7)
    If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunction applies contravene the injunction, the organisation and each officer of the organisation is taken to have failed to comply with the injunction.
  1. (8)
    However, subsection (7) does not apply to the organisation or officer if the organisation or officer proves, on the balance of probabilities, that the organisation or officer took all reasonable steps to ensure the officers or members complied with the injunction.
  1. (9)
    The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.
  1. (10)
    In this section—

"injunction" includes an interim injunction.

"organisation" includes a branch of the organisation.

  1. [9]
    An application for interim injunction under s 314 or s 473 of the Act involves considerations for the exercise of the discretion that are not materially different and are in accordance with the well-established principles contained in Australian Broadcasting Corporation v O’Neill.[1]
  1. [10]
    In an interlocutory application of this nature, having regard to the facts, I am required to consider:
  • Whether there is a serious question to be tried as to the applicant's entitlement to relief; and
  • Whether the balance of convenience favours the interlocutory relief sought.
  1. [11]
    When considering whether to grant an injunction the question of whether there is a serious question to be tried or prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties substantive cases will often be an important consideration to be weighed in the balance.[2]

Facts

  1. [12]
    As noted above, the parties in this matter have elected to have the interim injunction application dealt with on the papers.
  1. [13]
    Written submissions have been received from both parties. In addition, there is the evidence contained in the sworn affidavit of the applicant filed on 29 July 2019. No objections were raised by the respondent in relation to this affidavit. 
  1. [14]
    While the respondent has provided fulsome submissions dealing with issues relevant to both the interim application and the substantive matter, submissions cannot be regarded as evidence.
  1. [15]
    The only facts that are before me to inform the exercise of my discretion are those contained in the sworn statement of the applicant. I note further that not only has the respondent not sought to file any evidence, but they have not sought to cross examine the applicant in relation to her sworn statement.
  1. [16]
    In the circumstances, I am bound (within certain limitations) to accept the evidence of the applicant for the purposes of my deliberations, at least insofar as determining the interlocutory application.[3] That does not mean that the applicant's evidence would be unimpeachable at a final hearing of the matter. No doubt, given the overtures contained in the respondent's written submissions, there is a clear intent to resist the substantive matter and challenge the applicant's evidence. However, for these preliminary purposes, it is not open to me to speculate as to what other evidence might be led in this matter or how the applicant's evidence currently before me may be compromised by cross examination.[4]
  1. [17]
    In the circumstances, for the purpose of determining the interlocutory issue, I will proceed on the assumption that the evidence contained in the applicant’s affidavit will remain unchanged at the final hearing.
  1. [18]
    The applicant commenced employment with the respondent on 15 April 2019. The applicant is employed under the Public Service Act 2008 ("the PS Act") as a full time, fixed term employee. The applicant is employed on a fixed term contract that will expire on 15 April 2020.
  1. [19]
    Shortly prior to the commencement of her employment with the respondent, the applicant engaged in certain acts of activism for which she was subsequently charged with unlawful entry. The applicant appropriately notified her supervisor of these charges when they became known to her.
  1. [20]
    On or about 1 May 2019 the applicant pleaded guilty to a charge of unlawful entry. Subsequent to those court proceedings, it has been alleged by the respondent that the applicant made a series of comments that were reported in media outlets covering the aftermath of the activism. In addition to this, it has been further alleged that the applicant also made comments on social media relating to the activism and to her employment ("the alleged statements").
  1. [21]
    One of the comments allegedly made by the applicant to the media was to the effect that her employment with the State Government funds her activism. The media clippings exhibited to the applicant's affidavit indicate that the media paid some significant attention to this alleged comment.
  1. [22]
    Apparently, as a consequence of the respondent becoming aware of the alleged statements, the respondent began an investigation into the applicant's conduct. The applicant's immediate supervisor informed the applicant on 6 May 2019 that she was the subject of an investigation in relation to these comments.
  1. [23]
    On 7 May 2019 the applicant says that, in the ordinary course of her duties, she inadvertently located and accessed a confidential document within the respondent's IT system, a system known as 'TRIM'. The applicant immediately identified the document as containing confidential information about her and the investigation currently underway.
  1. [24]
    The applicant says that the inadvertence that led to her accessing these documents was due to her method of locating contact details for certain persons whose names were contained on a document described as the '2019 Senior Officer Contact List'. The applicant says that she used the TRIM system to locate this list and typed her name into the search function as a means of locating it.
  1. [25]
    The applicant says that, upon discovering the confidential information about her, she opened and then quickly closed the document because it appeared to be in relation to human resources matters about her.
  1. [26]
    There is no evidence that the applicant took any action immediately following this discovery. Her affidavit is silent as to what transpired following her discovery of the document until 17 May 2019, some ten days later.
  1. [27]
    On 17 May 2019 the applicant was again conducting a search for the 2019 Senior Officer Contact List. She did so in what she says was her usual way i.e. by typing her name into the search function.
  1. [28]
    On this occasion the applicant says she again saw the confidential document pertaining to her investigation and she became concerned that others who had access to the TRIM system would equally have access to these confidential documents about her.
  1. [29]
    In order to test her concerns, the applicant says that she invited two colleagues who were working nearby to access the TRIM system and to confirm whether they could also see the confidential documents pertaining to her. The applicant says that her two colleagues confirmed that they could see the document.
  1. [30]
    The applicant says that she then took screenshots of the relevant document and provided them to her immediate supervisor (Mr Mara). In doing so, the applicant also says that she raised her concerns with her immediate supervisor that the availability of these documents in the TRIM system was an invasion of her privacy.
  1. [31]
    The applicant says that Mr Mara undertook to address her concerns and her affidavit attaches a copy of an SMS message at Exhibit 'AB4' which appears to support this. The applicant further says that she accessed the TRIM system again on 18 May 2019 and observed that the confidential information was no longer visible or accessible.
  1. [32]
    On 11 June 2019 the applicant was provided with a letter ("the first show cause letter") from the respondent to show cause as to why disciplinary action should not be taken against her. The single allegation contained in the first show cause letter was:

On 1 May 2019, you were convicted of the offence of trespass for unlawfully entering the business premises of Ballyhigh Pty Ltd on 8 April 2019.

  1. [33]
    The first show cause letter further particularises the allegation to include references to the applicant's statements to the media and on social media. The applicant was required to respond to the show cause letter by 25 June 2019. She did so through her solicitors.
  1. [34]
    On 28 June 2019, three days after the applicant had provided her response to the show cause letter, the applicant again accessed the TRIM system to locate the 2019 Senior Officer Contact List. The applicant, again using what she says was her usual method, typed her name into the search function.
  1. [35]
    On this occasion the applicant says that her search revealed twenty-three records pertaining to her which she considered to be confidential or private, and relating to the investigation. The applicant says she took a screenshot for the purposes of making a further complaint about the breach to her privacy.
  1. [36]
    It was the applicant's belief that somewhere in the order of 192 employees could have access to these documents and she says that this made her feel "distraught, violated, and sick to the stomach".
  1. [37]
    At or about 29 June 2019 the applicant ceased work to undergo some surgery.
  1. [38]
    The applicant was still on leave recovering from surgery when, on 12 July 2019, the applicant received a second show cause notice from the respondent ("the second show cause letter"). The second show cause notice required the applicant to respond to allegations as follows:

On 7 May 2019 and on 17 May 2019 you inappropriately accessed, without proper authorisation, confidential record 19/235420 on departmental database HPE Records Manager.

  1. [39]
    On 15 July 2019, the applicant says that she made a further formal complaint about her privacy to Ms Angela Evans and reported the twenty-three documents she had identified in her search on 28 June 2019.
  1. [40]
    Two days after making this complaint, on or about 17 July 2019, the applicant's employment was suspended pursuant to s 189 of the PS Act.
  1. [41]
    The applicant was, and currently remains, suspended on her normal remuneration.
  1. [42]
    On 29 July 2019 the applicant filed her application alleging contravention of s 285 of the Act and seeking inter alia interlocutory relief.

Consideration

A serious case to be tried

  1. [43]
    In broad terms the applicant's complaint can be characterised as a complaint that adverse action was taken because she exercised certain workplace rights.
  1. [44]
    The applicant's application contains no pleadings at all. However, at paragraph 64 of her affidavit, under the heading 'adverse action', the applicant sets out the elements of her complaint. While the applicant's affidavit is not a pleading in the formal sense, for these interim purposes, the key aspects of the applicant's complaint can be made out in my view.
  1. [45]
    At paragraph 64(a)-(e) the applicant lists five separate acts taken by the respondent, each of which is said to be 'adverse action'.
  1. [46]
    In their written submissions the respondent submits that the applicant has not particularised the adverse action she alleges. I disagree. In so far as the actions taken that the applicant alleges constitute the adverse action, each is set out with clarity and in a way that does not require further particulars. The fact that the actions listed occurred or were taken against the applicant is not contested.
  1. [47]
    The respondents submit further that no adverse action has been taken because no disciplinary action has been taken. The respondent says that the applicant has "merely" been asked to show cause.[5] This submission, with respect, fails to understand the meaning of the terms "injures the employee" or "alters the position of the employee" as they appear in s 282(b) and (c) (respectively) of the Act.
  1. [48]
    In a similar provision contained in s 298K of the Workplace Relations Act 1996, the High Court held that the term "injure" has a wide meaning and covers every compensable injury.[6]
  1. [49]
    In Squires v Flight Stewards Assn of Australia[7] Ellicott J held:

The words "injure in his employment" are…words of wide import…They are…applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.

  1. [50]
    Further, a show cause process has been found to constitute an "alteration of an employee's position" for the purposes of the definition of adverse action contained at s 342 of the Fair Work Act 2009.[8]
  1. [51]
    I have no difficulty concluding that each of the actions identified at paragraph 64 of the applicant's affidavit falls within the definition of 'adverse action' found at either s 282(1)(b) or (c) of the Act. That is not to limit the applicant in arguments she may later make with respect to s 282(1)(d) of the Act, but given my conclusion already reached, there is no requirement to go further than I have.
  1. [52]
    The respondent also submits that the disciplinary process to which the applicant is being subjected is "standard" and "consistent with departmental procedures".[9] That may be so, but legitimate procedures can sometimes be tools in the hands of persons motivated by proscribed reasons to achieve their nefarious purposes. This is precisely what is alleged by the applicant. To say the procedures are 'standard' does not answer her allegation.
  1. [53]
    On the issue of the workplace rights exercised and said to have prompted the adverse action, the second half of paragraph 64 of the applicant's affidavit says that the adverse action was taken:

…because I defended myself via the Response to the defective First Show Cause Notice and/or because I made the privacy complaints and/or because they had offended the Information Privacy Act 2009 (Qld) and/or to prevent a complaint to the Office of the Information Commissioner.

  1. [54]
    In the absence of pleadings, it is impossible to say with certainty which parts of the Act the applicant relies on for this aspect of her complaint. Were this the final hearing, such a 'pleading' might make the complaint liable to be dismissed for a failure to identify a cause of action. However, I am mindful that this an interim proceeding which seeks to urgently address the risk to the applicant's employment said to arise from the alleged contraventions. I note the comments of the court in Samsung[10] to the effect that the dual considerations of a prima facie case and the balance of convenience ought not be considered independent of each other.
  1. [55]
    Given the nature of the allegation contained in the second show cause letter, there is a real likelihood of the applicant's employment being terminated. In those circumstances, for these interim considerations, it is appropriate in my view to take a less technical approach to the analysis of the case being advanced by the applicant. 
  1. [56]
    While I am not convinced at this stage (in the absence of proper pleadings) that responding to or 'defending' oneself in a show cause process falls within the definition of a 'workplace right' found at s 284 of the Act, making complaints about personal confidential information being readily available to other employees as alleged arguably does.
  1. [57]
    In the Federal jurisdictions that deal with similar provisions found at s 341(1)(c)(ii) of the Fair Work Act 2009, there is some divergence as to whether the workplace right of 'complaint or enquiry' ought to be read widely or read narrowly.[11] In Henry v Leighton Admin Services Pty Ltd[12] Manousardis J said:

A person has a workplace right within the meaning of s 341(1)(c)(ii) if the person has the capacity or capability to make a complaint or enquiry about the person's employee rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint enquiry about his or her employment rights and obligations, or if the person makes a complaint to enquiry about a subject that may prejudice the person in his or her employment.

  1. [58]
    There will no doubt be arguments at the final hearing about the question of whether the applicant's complaint about the breach of her privacy falls within the definition of workplace rights found at s 284 of the Act. However, the fact that there is an argument at all favours a conclusion for interim purposes that such a complaint is included in the definition and is an exercise of a workplace right.
  1. [59]
    The respondent submits that it was unaware of any privacy complaint. I would have thought if such a submission was to be relied on, affidavits from Mr Mara and Ms Evans would have been provided, as these are the two people the applicant says she made her complaints to. While I cannot currently reach any conclusion on the respondent's submission in this regard, for interim purposes I only have the evidence of the applicant.  
  1. [60]
    I am therefore satisfied that the facts as set out in the applicant's affidavit support a conclusion (for interim purposes) that the applicant has exercised a workplace right.
  1. [61]
    There is a final element of a complaint that alleges a contravention of s 285 of the Act, namely, that the adverse action was taken because of the exercise of the workplace right. The respondent has the onus to demonstrate that the exercise of the workplace right was not the substantial or operative factor for the taking of the adverse action. It is commonly accepted that the respondent can only discharge this onus by calling evidence from the decision maker to explain why the alleged contravening action was taken.[13] 
  1. [62]
    The respondent has chosen not to lead any sworn evidence in this interim proceeding. Affidavits from key personnel of the respondent responsible for taking the alleged contravening action would have greatly enhanced the evidence available on this issue. Further, while the absence of such evidence makes the task of evaluating the case advanced by the applicant more difficult, it is not appropriate or relevant for me to speculate how the respondent might seek to discharge their onus.[14]
  1. [63]
    I am therefore confined to the applicant's sworn affidavit as the basis for my evaluation of whether she has established a prima facie case.
  1. [64]
    I do have some reservations about the merits of the applicant's case. However, at this stage I am required only to consider whether, if the available evidence prevailed at trial, whether the applicant could be successful.
  1. [65]
    My concerns about the merits of the applicant's claim do not affect my conclusion that, on the evidence currently available, the applicant is able to demonstrate that she has a prima facie case.

Balance of convenience

  1. [66]
    Evaluating where the balance of convenience lies involves the weighing of competing prejudices to each party in circumstances where the injunction is or is not ordered. Whether such disadvantages could be overcome with an order for compensation if the applicant were successful at the final hearing is a significant factor in the consideration.[15]
  1. [67]
    The process of evaluation will require a consideration of facts that are unique in each case.
  1. [68]
    In this matter the applicant seeks to have the disciplinary action, in the form of (and following from) the second show cause letter restrained pending the substantive hearing or further order of the commission. Further, the applicant seeks to have the respondent restrained from terminating her employment.
  1. [69]
    The applicant is a short-term employee on a fixed term engagement of a total of twelve months. The applicant currently has a maximum of approximately seven months employment remaining on her fixed term engagement.
  1. [70]
    The applicant, unlike the applicant in Jones[16] is a relatively junior employee with very limited service and a short tenure. Arguably, the loss of her employment at this time might, if her claim later succeeded, be adequately compensated by e.g. an order for compensation covering the balance of her fixed term contract.
  1. [71]
    However, that particular loss to the applicant if the respondent were allowed to continue with the process foreshadowed in the second show cause letter to the point of e.g. termination is not the only compensable loss likely to be suffered by the applicant.
  1. [72]
    The powers to award compensation in relation to contraventions of s 285 of the Act are broad. Section 314(1)(b) contains a power to award compensation that is unlimited and is quite distinct from the power to award compensation for remuneration lost found at s 341(1)(c). The broad powers to award compensation will, like the Federal counterpart at s 545 of the Fair Work Act 2009, also include a power to award compensation for non-economic loss e.g. hurt and humiliation.
  1. [73]
    I note the applicant's affidavit makes reference to such matters as the loss of her skills, reputational damage, and injury to her health. As already noted, none of the applicant's evidence in this respect has been challenged. While I also note that the applicant's evidence in this regard is lacking particularity, for interim purposes I am inclined to conclude that if successful at the final hearing, compensation potentially payable to the applicant will extend beyond a simple loss of remuneration.
  1. [74]
    I note also that the applicant's work history set out in paragraph 3 of her affidavit suggests a pattern of employment with not-for-profit, public sector or quasi-public sector employers. I can readily anticipate that a formal record of a termination or other disciplinary finding in respect of the applicant's current employment would likely have long-term ramifications for her employment in not only the Queensland public service, but potentially with other employers of that ilk.
  1. [75]
    To allow the respondent to continue with its show cause process will undoubtedly put the applicant in jeopardy of a loss that extends beyond mere remuneration. However, as grave the consequences might be for the applicant, prejudice to the respondent must also be evaluated.
  1. [76]
    The allegations giving rise to the second show cause letter are quite serious. The applicant was authorised to access TRIM which is a form of database containing confidential information. Not all employees have access to this database[17] and the applicant was therefore in a position of having a greater degree of trust placed in her by the respondent.
  1. [77]
    On the applicant's affidavit, she does not deny that:
  • she accessed documents;
  • she did not have any official purpose to access them; and
  • that they related directly to an investigation and disciplinary process involving her.
  1. [78]
    While I am required generally to accept the evidence of the applicant in her unchallenged affidavit, there are exceptions. I am not, for example, required to accept such evidence if it is inherently incredible.[18]
  1. [79]
    Further, as the President said in Dalley,[19] unchallenged evidence 'which is not inherently implausible' and which is not directly contradicted by a credible body of evidence of a substantial character, should ordinarily be accepted. Whether evidence is implausible will be largely a question of judgment for the decision maker.
  1. [80]
    Without rejecting the applicant's evidence on the point, I find her explanation for inadvertently accessing confidential documents pertaining to her to be somewhat implausible. I say ‘somewhat’ because the paucity of evidence from both sides of this argument leaves me anticipating certain scenarios, but otherwise unable to reach final conclusions. I am restricted to the evidence in the applicant's affidavit.
  1. [81]
    While the applicant describes[20] her methods when searching in TRIM as being routine, she provides no evidence about how or if she was trained in the use of TRIM, and neither does the respondent.
  1. [82]
    In my view, it is almost inconceivable that a person with even rudimentary computer skills would not appreciate that entering their own name into a search function will primarily produce results in the form of documents containing their name. If this be the case, the applicant would have had to have anticipated that she might, even accidentally,  access documents to which she ought not to. When this is coupled with the timing of the applicant's first inadvertent discovery of the investigation document i.e. the day after she was informed by a supervisor that an investigation was underway, it tends to put her explanation into some doubt in my view. This is especially so when, on her own evidence, notwithstanding the discovery of this confidential document alleged to be accessible by many other colleagues, the applicant says nothing and takes no action for ten days. There is no explanation from the applicant why concerns about her privacy only arose on 17 May 2019 and not 7 May 2019.
  1. [83]
    Notwithstanding these concerns I have been prepared to conclude that the applicant has established a prima facie case. However, for the purposes of evaluating the balance of convenience, I am not inclined to be wholly accepting of the applicant's evidence. In my view the applicant's affidavit contains some parts that are implausible or contradictory. On the primary facts submitted by the applicant, I can appreciate the concerns held by the respondent. It may be that the applicant is exonerated of any impropriety at the final hearing, but at this interim stage the unresolved question is a matter that weighs against making an order that would fully restore the applicant to her previous employment.
  1. [84]
    To allow the applicant to return to her workplace while this issue remains un-resolved creates an unacceptable risk for the respondent. In my view, much of the prejudice complained of by the applicant with respect to loss of status and skills can be overcome by the respondent finding alternative duties for her as contemplated by s 189 of the PS Act.
  1. [85]
    On the whole, it is my view that the balance of convenience in this matter is weighted towards an outcome whereby the applicant's employment is preserved, but without compelling the respondent to return the applicant to the role in which these possible breaches of confidence arose.
  1. [86]
    For these reasons I am prepared to grant the applicant injunctive relief however, as foreshadowed with the applicant's solicitor at the mention of this matter on 22 August 2019, s 314 of the Act allows me to make any orders I consider appropriate,[21] and I do not intend to make orders in accordance with the application.
  1. [87]
    The question now is to consider what form the appropriate orders will take.

Form of Orders

  1. [88]
    As the title suggests, the second show cause letter invites the applicant to show cause why disciplinary action should not be taken against her pursuant to Chapter 6, Part 2 of the Act. Section 188 of the PS Act identifies examples of the types of disciplinary action that can be taken, including termination of employment.
  1. [89]
    In the circumstances where the applicant alleges that the very process that might lead to the termination of her employment is borne out of proscribed motives, it is necessary to preserve her employment until her allegations can be tested and answered at final hearing.
  1. [90]
    The orders in this matter need to address the preservation of the applicant's employment and the disposition of the show cause process arising from the second show cause letter.
  1. [91]
    It should be expressly noted that the applicant's complaint does not allege that any aspect of the first show cause letter amounts to adverse action. Indeed, the interim orders sought by the applicant in her application seek an expedited conclusion of the process arising from the first show cause letter.
  1. [92]
    For these reasons, except where there is a specific reference to the first show cause letter, any orders made in this interim application do not apply to the first show cause letter or its subsequent processes, including those yet to occur.

Preservation of employment

  1. [93]
    The applicant is employed full time for a fixed term of twelve months. Her engagement with the respondent is scheduled to end on 15 April 2020. I note that the applicant confirms her offer of employment was for twelve months.  I note further that, at paragraph 4 and 5 of her affidavit, the applicant asserts that representations about her employment being extended induced her into accepting the position.
  1. [94]
    The applicant offers no particulars of the alleged representations. Further, she makes reference to emails and text messages from Ms Evans which she says formed the basis of her giving notice to her previous employer. None of these documents are annexed as exhibits to the affidavit. There is no explanation for their absence.
  1. [95]
    Further, at the mention of this matter on 22 August 2019 the solicitor for the applicant confirmed that the orders being sought with respect to preservation of the applicant's employment were not proposed to extend beyond the fixed term.[22]
  1. [96]
    Accordingly, any order made to preserve the applicant's employment in this matter will be limited to the fixed tenure of the applicant.

Restraint on action arising from the second show cause letter

  1. [97]
    The central allegation of the applicant as set out in paragraph 64(b)-(e) is that the second show cause letter and its consequences e.g. suspension notice, suspension, and notice of further consideration were motivated by inter alia her privacy complaints.
  1. [98]
    In issuing an injunction I am mindful that it ought to be restricted to address only the alleged contravening actions or likely contraventions if the application is not granted. The respondent must not be more broadly restrained than is necessary.
  1. [99]
    Further, I have noted above that the restraint should not extend to the suspension of the applicant from the role in which her alleged misconduct occurred. I would similarly consider that, given the outstanding questions about the applicant's access to confidential information, I would not consider some level of restriction or supervision of the applicant's access to information in the course of subsequent employment to be unreasonable.
  1. [100]
    While I am prepared to restrain the respondent from taking any action to progress or act on the second show cause process, I do not consider the balance of convenience favours reinstating the applicant. However, continued suspension of the applicant from employment is not ideal either.
  1. [101]
    The respondent is a large employer.  I note the provisions of s 189(2) of the PS Act. In my view the applicant ought to be found alternative duties if they are available.
  1. [102]
    I appreciate that despite best efforts, the respondent might not be able to provide such duties. Further, at the darker end of the spectrum of possibilities, the applicant might also hold concerns that the respondent's efforts to find her alternative duties might fall short of genuine, or that work found might be chosen for some covert punitive motive.
  1. [103]
    These considerations are all speculative. In the event that a less than optimum outcome arises from attempts to deploy the applicant to other duties, the aggrieved party can either raise that issue as a discrete matter of compliance with these orders or ventilate it in the substantive matter as it ensues. 
  1. [104]
    I am of the view that the applicant should remain on remunerated suspension while the respondent locates alternative duties for her. I am prepared to make orders preserving remuneration unless or until e.g. the applicant is shown to unreasonably refuse to undertake alternative duties, or some other circumstances arise that justify a reconsideration of remunerated suspension.

The first show cause process

  1. [105]
    The applicant seeks a decision by the respondent with respect to the first show cause notice within seven days. Notwithstanding the time that has elapsed since the making of the application, seven days is an unrealistic timeframe for a decision on such a matter.
  1. [106]
    Further, the respondent may hold concerns that any action it takes in relation to that matter now will be the subject of a further allegation by the applicant that it is in some way a response to her alleged privacy complaints.
  1. [107]
    I am not prepared to make any orders compelling the respondent to act (or not act) in respect of the first show cause letter.

Orders

  1. [108]
    Section 314 of the Act contains broad powers to make orders that are considered appropriate to inter alia prevent contravention of the Act.
  1. [109]
    My findings as to the applicant establishing a prima facie case should not be construed as a finding that the respondent has contravened the Act. That is a matter for the final hearing. I am however prepared to recognise the possibility of contravention and accordingly I make the following orders:
  1. Other than by expiration of the applicant's fixed term of employment, the respondent is restrained, until the hearing of the application or further order, from terminating the applicant's employment;
  1. Other than the suspension of the applicant's employment on normal remuneration, the respondent is restrained until the hearing of the application or further order, from taking any disciplinary action against the applicant in relation to the allegation set out in the second show cause letter, dated 12 July 2019;
  1. The respondent will take all necessary steps to locate alternative duties for the applicant to perform until hearing of this application or further order, and in doing so will have regard to the applicant's skills, experience, abilities and usual place of abode;
  1. The applicant, until hearing of this application or further order, must not unreasonably refuse any offer of alternative duties offered to her by the respondent;
  1. Unless or until suitable duties are provided to the applicant by the respondent, the applicant's employment is suspended on normal remuneration until hearing of the application or further order;
  1. The parties are at liberty to apply on the giving of two 2 days notice;
  1. Costs of this application are reserved.
  1. [110]
    Any reference to the respondent in these Orders includes the chief executive, and any employees, officers or agents of the respondent.
  1. [111]
    I so order.

Footnotes

[1] (2006) 227 CLR 57 at [65]. See also McDermott Australia Pty Ltd v Australian Workers Union [2011] FCA 303 at [24].

[2] Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 at [67]-[70].

[3] Dalley & Ors v Kelsey & Ors [2018] ICQ 006 at [43].

[4] Supra at [34]-[37].

[5] Paragraph 39 of the respondent’s submissions filed 2 August 2019.

[6] Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1 at [4].

[7] (1982) 2 IR 155 at [164].

[8] Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [100].

[9] Ibid at paragraph 40.

[10] Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 at [67].

[11] See e.g. Shea v Truenergy Services Pty Ltd (No 6) (2014) 314 ALR 346.

[12] (2015) 299 FLR 342 at [77].

[13] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 at [44].

[14] Dalley & Ors v Kelsey & Ors [2018] ICQ 006 at [36].

[15] Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 at [62]-[66] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.

[16] Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010)186 FCR 22.

[17] At paragraph 33 of her affidavit the applicant estimated 192 people had access which, given the size of the Department is an exclusive group.

[18] Webster v Lampard (1993) 177 CLR 599 at 604, 608, 610; Clayton v Aust (1993) 9 WAR 364 at 373.

[19] Supra at [43].

[20] At paragraph 20 of her affidavit.

[21] See also s 541.

[22] Transcript: page 1-4, line 1-20.

Close

Editorial Notes

  • Published Case Name:

    Angela Banovic v State of Queensland, Department of Education

  • Shortened Case Name:

    Banovic v Queensland

  • MNC:

    [2019] QIRC 132

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    06 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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