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  4. Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) - [2016] ICQ 15

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Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)[2016] ICQ 15

Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)[2016] ICQ 15

 

INDUSTRIAL COURT OF QUEENSLAND

 

CITATION:

Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] ICQ 015

PARTIES:

HENRY HUBERT GOBUS

(appellant)

v

STATE OF QUEENSLAND (CAIRNS AND HINTERLAND HOSPITAL AND HEALTH SERVICE)

(respondent)

FILE NO/S:

C/2016/3

PROCEEDING:

Appeal

DELIVERED ON:

18 July 2016

HEARING DATE:

9 June 2016

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – where the appellant was dismissed from his employment – where he applied for reinstatement – where that application was dismissed by the Commission on the basis that his dismissal had not been because he made a public interest disclosure and was not harsh, unjust or unreasonable for the purposes of s 73 of the Industrial Relations Act 1999 – whether the Commission made an error of law or jurisdictional error in reaching its decision

Industrial Relations Act 1999, s 73, s 341(1)

CASES:

Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 018

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

APPEARANCES:

Mr Gobus appeared by telephone

M Spry instructed by MinterEllison for the respondent

  1. [1]
    On 18 December 2014 the appellant (“Mr Gobus”) was dismissed from his employment as a psychologist working in the Acute Care Team in the Cairns and Hinterland Hospital Health Service (“the agency”). He had been employed with the agency since March 2005. His application for reinstatement was dismissed on two bases:
    1. (a)
      the dismissal was not made for an invalid reason, that is, he was not dismissed because he made a public interest disclosure (“PID”) under the Public Interest Disclosure Act 2010, and
    2. (b)
      the dismissal was not harsh, unjust or unreasonable.
  2. [2]
    Mr Gobus, who was not represented before the Deputy President or this Court, provided written submissions which were discursive and, thus, his arguments were not completely clear. Nevertheless, it is possible to discern the following as constituting the basis of his appeal grounds. He contends that the Deputy President erred in the following ways:
    1. (a)
      he did not admit certain documents which were gathered during an investigation into matters raised by or concerning Mr Gobus,
    2. (b)
      he did not admit a letter sent to Mr Gobus by the Ombudsman,
    3. (c)
      he found that Mr Gobus had been dismissed for his behaviour rather than because he had made a PID,
    4. (d)
      he found that the dismissal was not harsh, unjust or unreasonable, and
    5. (e)
      he used the word “unfair” instead of “invalid” in part of his reasons.

The legislation

  1. [3]
    Section 73 of the Industrial Relations Act 1999 (“the Act”) defines when a dismissal will be unfair. The relevant provisions are:

“73 When is a dismissal unfair

  1. (1)
    A dismissal is unfair if it is—
  1. (a)
    harsh, unjust or unreasonable; or
  1. (b)
    for an invalid reason.
  1. (2)
    Each of the following is an invalid reason—

  …

  (f) the making by anyone, or a belief that anyone has made or may make—

  1. (i)
    a public interest disclosure under the Public Interest Disclosure Act 2010; …”
  1. [4]
    An appeal to this Court is available on limited grounds. Section 341 of the Act relevantly provides:

“(1) The Minister, or a person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) or registrar, may appeal against the decision to the court only on the ground of—

  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.”
  1. [5]
    The meaning of “error of law” or jurisdictional error was considered in Minister for Immigration and Multicultural Affairs v Yusuf[1] where McHugh, Gummow and Hayne JJ said:

“[82] It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (citations omitted, emphasis added)

Refusal to admit the investigation documents and the Ombudsman’s letter

  1. [6]
    Mr Gobus contends that the Deputy President erred when he refused to allow the tender of the documents relating to the investigation into his behaviour and conduct conducted by Queensland Health.
  2. [7]
    During the hearing Dr Gobus sought to tender copies of interviews undertaken by Queensland Health with 14 people.[2] Objection was taken by counsel for the employer on the basis that there was no evidence that anyone was interviewed in relation to the allegation put to Mr Gobus and which formed the basis of his termination. Those statements related to allegations by Ms Shaffer of harassment by Mr Gobus which were found to be unsubstantiated. The following exchange[3] took place between the Deputy President and Mr Gobus:

“GOBUS: ... It is only because they are false that I can make a public interest disclosure that actually this is reprisal action.

DEPUTY PRESIDENT: Well, that’s your accusation, if you like. But the fact that the allegations made by Ms Shaffer are false is demonstrated – – –

GOBUS: I am accused of [indistinct] her of reprisal.

DEPUTY PRESIDENT: – – – by the fact that the investigations into her allegations was dismissed, and her allegations were found to be unsubstantiated. So I know the department – the employer accepts that the allegations against Ms Shaffer – by Ms Shaffer were unsubstantiated. I don’t understand why the witness statements upon – that were taken during the course of that investigation are now relevant to the issue that I have to decide.

GOBUS: Yeah. I see your point. I accept that, your Honour.

DEPUTY PRESIDENT: Yes. All right.

GOBUS: I’m sorry.

DEPUTY PRESIDENT: No. Thank you. All right. Well, you don’t tender those.”

  1. [8]
    There was no error by the Deputy President. Mr Gobus did not press the tender of the documents and accepted the reasoning (which, I observe, was correct) that the documents were not relevant.
  2. [9]
    The respondent maintained that a document dated 18 August from Mr Gobus was not a PID. Mr Gobus sought to rely upon a letter from the Ombudsman written in reply to a complaint made by Mr Gobus. The letter was not produced before me but it was not disputed that the substance of the letter was that the Ombudsman had declined to investigate a complaint made by Mr Gobus because “the substantive issues raised in your complaint are likely to form a substantial part of your unlawful dismissal case that is currently before the Queensland Industrial Relations Commission”. The appellant sought to tender the letter on the basis that it contained an observation that his letter of 18 August “may constitute a public interest disclosure”.
  3. [10]
    The letter from the Ombudsman was inadmissible. The part upon which Mr Gobus sought to rely was a tentative expression of an opinion by the Ombudsman. That opinion was not admissible and even had it been more robust in its conclusion it would still have been irrelevant to the issues to be decided by the Deputy President. The Deputy President did not err in rejecting the tender.

Dismissal for behaviour – not for making a PID

  1. [11]
    Mr Gobus submits that the Deputy President erred in finding that his dismissal was not because he had made a PID but because of his behaviour. The Deputy President was aware that the case for the appellant rested upon the assertion that the reason for dismissal was unfair because it was for an invalid reason.
  2. [12]
    His reasons for not accepting Mr Gobus’ submission appear in the following extract from his reasons:

“[51] The evidence of Ms Hartley-Jones, …, was not challenged. Ms Hartley-Jones was a witness of credit. Accordingly, I accept Ms Hartley-Jones’ evidence that:

“Mr Gobus’ action in sending a letter to the minister in itself was also not a factor that I took into account in making my decision to substantiate the allegation against him.”

…

“The reason that I made the decision to substantiate the allegation was that Mr Gobus’s behaviour towards his colleagues as contained in his letter [of 18 August 2014] to the Minister was well below the standard I expect of a senior member of a professional team.”

[52] In my view, the letter of 18 August 2014 was not a PID, it was really no more than a litany of unsubstantiated allegations. However, it is unnecessary for me to finally determine this issue because the decision leading to Mr Gobus’ termination was not based upon the act of his sending the letter but upon the way in which he behaved. Mr Gobus was not dismissed for an invalid reason within the meaning of s 73(2) of the Act. The making of the alleged PID was not an operative factor in the decision to terminate Mr Gobus’ employment.”

  1. [13]
    The clear distinction which was drawn in the letter of dismissal of 18 December 2014 was that the behaviour of Mr Gobus was the reason for dismissal. The letter of 18 August 2014 to the Minister is referred to in the letter of dismissal but the contents of that letter are not inconsistent with the evidence given by Ms Hartley-Jones. The decision by the Deputy President on this point was a decision as to a question of fact. There was evidence to support the decision and no appellable error has been demonstrated.

Harsh, unjust, or unreasonable?

  1. [14]
    The meaning of the expression “harsh, unjust or unreasonable” was considered by the Deputy President.[4] It has not been demonstrated that he failed to take into account any relevant consideration. He received submissions on the point and adverted to matters which Mr Gobus relies upon in this appeal. No error of law has been established.

“Unfair”/“Invalid”

  1. [15]
    In paragraphs [70] and [73] the Deputy President uses the word “unfair”. It appears that Mr Gobus argues that he should have used the word “invalid” but that submission is confused with his repeated argument concerning the tender of documents (referred to above). The word “unfair” was used in the context of the Deputy President’s consideration of whether the dismissal was harsh, unjust or unreasonable. It was not used in connection with a consideration of whether there was an “invalid reason” for the dismissal. No error has been demonstrated.

Conclusion

  1. [16]
    The appellant has not demonstrated that the decision of the Deputy President was affected by any error of law or excess, or want of, jurisdiction. The appeal is dismissed.

Footnotes

[1]  (2001) 206 CLR 323.

[2]  T1-47.

[3]  T1-48.

[4]  [2016] QIRC 018 at [3]-[6].

Close

Editorial Notes

  • Published Case Name:

    Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • Shortened Case Name:

    Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • MNC:

    [2016] ICQ 15

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    18 Jul 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 18
2 citations
Jump To
Cite 1 - [2016] QIRC 18
Cite 2 - [2016] QIRC 18
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
2 citations
Jump To
Cite 1 - (2001) 206 CLR 323
Cite 2 - (2001) 206 CLR 323

Cases Citing

Case NameFull CitationFrequency
Flanagan v State of Queensland (Department of Natural Resources, Mines and Energy) [2022] QIRC 1992 citations
Gobus v Cairns Hinterland Hospital and Health Service [2018] QCATA 1212 citations
1

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