Darlington v Queensland[2016] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   Section 277(1) of the Industrial Relations Act 1999 (“the Act”) allows the Queensland Industrial Relations Commission to grant an injunctive order^[1] it considers appropriate:

   1. (a)
      to compel compliance with an industrial instrument, a permit or this Act; or
   2. (b)
      to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
2. [2]
   In this case, the Commissioner declined to grant an injunction on the basis that the power to do so was excluded by s 277(11) of the Act. That subsection provides:

“(11) The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A.”

3. [3]
   The appellant contends that the Commissioner erred because the application before her was for injunctive relief requiring the respondent to comply with the grievance procedure in clause 3.2 of the Police Service Award – State 2012 (“the Award”) and not in respect of a proposed contravention of s 73 of the Act.

Background

4. [4]
   The appellant is a sworn police officer employed under the Police Service Administration Act 1990 (“PSAA”).
5. [5]
   Section 8.3 of the PSAA provides that the Commissioner of the Queensland Police Service (“QPS”) can exercise certain powers where a police officer is regarded as unfit for duty on medical grounds. It prescribes a series of steps which the Police Commissioner can take and, if the Police Commissioner is satisfied that a particular officer should not continue to be required to perform the duties of office, then the Police Commissioner may call upon the officer to retire from the Service within a nominated time. If that officer does not retire within the nominated time, then the Police Commissioner may dismiss the officer from the Service.
6. [6]
   The history of this matter was set out by the Commissioner in the following way:

“[10] In April 2013 Ms Darlington injured her knee, which eventually resulted in knee replacement surgery. The surgery took place in November 2013. Following recovery and rehabilitation, Ms Darlington gradually returned to modified duties within the service from February 2014.

[11] In September 2014 Ms Darlington was directed by Queensland Police Service to attend a medical examination. This request was made pursuant to s 8.3(2) of the Police Service Administration Act 1990 (Qld).

[12] In the same month, the specialist who undertook the medical examination noted it was unlikely Ms Darlington would to be able to return to frontline police duties in the foreseeable future given the condition of both of her knees. Following the findings in the report, discussions were held between Queensland Police and Ms Darlington in respect of her future employment with the service over a period of some eighteen months.

[13] In a letter from Queensland Police of 7 September 2015, Ms Darlington was provided with two options in respect of her future employment. One option required her to consider transitioning into an appropriate paid civilian position within the service, or if this was not suitable, it was proposed she bring her service with the police force to an end on medical grounds.

[14] The same letter includes references to previous correspondence between the parties regarding the proposed career transition process, as well as occasions where an extension of time was afforded to Ms Darlington to obtain and provide specialist medical information in support of retaining her substantive position.

[15] On 13 October 2015, Ms Catherine Coake, Ms Darlington’s legal representative at the time, forwarded an email to Queensland Police requesting additional time to obtain further medical evidence.

[16] On 5 November 2015, Assistant Commissioner Gee acknowledged Ms Coake’s prior correspondence and agreed to grant an extension of time for Ms Darlington to respond to the proposal for career transition. The proposed new deadline was 8 January 2016, which was approximately one year after the first extension was granted on 26 February 2015.

[17] Further emails prepared by Ms Coake dated 3 and 15 December 2015 on behalf of Ms Darlington raised the prospect of arranging a meeting with Assistant Commissioner Gee to discuss Ms Darlington’s future employment options with Queensland Police.

[18] On 3 March 2016, a letter from Assistant Commissioner Gee to Ms Darlington confirmed a decision to medically retire Ms Darlington from the police service at midnight on 13 May 2016. In the same letter, Assistant Commissioner Gee offered a further opportunity for Ms Darlington to transition to a staff member position within the Queensland Police Service.

[19] On 29 March 2016, Ms Darlington wrote to Queensland Police requesting:

1. (a)
    a review of Assistant Commissioner Gee’s decision;

2. (b)
    an extension of time to allow for the Queensland Police Union [to] respond to the matter;

3. (c)
    and a meeting with Assistant Commissioner Gee.

[20] On 3 May 2016, Assistant Commissioner Gee, referring to previous emails and meetings with Ms Darlington, accepted her proposal to resign on 4 January 2017, ‘subject to any determination which the Deputy Commissioner may make regarding your medical retirement.’

[21] On 27 May 2016 Acting Deputy Commissioner O'Regan forwarded correspondence to Ms Darlington in respect of her employment with Queensland Police, noting:

‘Notwithstanding Assistant Commissioner Gee’s acceptance of your resignation effective on that date, action taken under section 8.3 of the Act remains open to me.’

[22] In the same correspondence, Acting Deputy Commissioner O'Regan notes multiple extensions afforded to Ms Darlington to obtain further medical information, and goes on to inform Ms Darlington that pursuant to s 8.3(4) of the Police Service Administration Act 1990, her employment would come to an end on the basis of her medical incapacity, with effect from midnight of 4 July 2016.

[23] On 23 June 2016, Ms Darlington lodged a grievance with Queensland Police in respect of the decision to terminate her employment as well as another pay related grievance. In the same grievance, Ms Darlington requested the status quo be maintained in respect of her current employment, whilst the procedure contained in the Police Award was being followed.

[24] On 28 June 2016, Queensland Police declined to invoke the status quo, maintaining Ms Darlington’s employment would come to an end due to her medical incapacity at midnight, on 4 July 2016.”

7. [7]
   The Commissioner’s reasons for declining to grant an injunction are contained in this paragraph:

“[47] Having considered the submissions of both Ms Darlington and Queensland Police, I have concluded this application is unable to succeed on the following grounds:

1. (a)
    The Commission is bound by s 277(11) of the Act which prevents it from granting injunctive relief in respect of a proposed contravention of s 73 of the Act.

2. (b)
    Section 73 of the Act deals directly with unfair dismissals.

3. (c)
    It follows that I am prevented from exercising my discretionary power under s 277 of the Act in circumstances where there is a proposed contravention of s 73 of the Act.

4. (d)
    In s 73, a dismissal is defined as being unfair if it is, ‘harsh, unjust or unreasonable’ (my emphasis).

5. (e)
    Section 77 of the Act sets out a series of matters the Commission must consider when determining an unfair dismissal application.

6. (f)
    Included in those matters are whether the dismissal relates to the employee’s conduct, capacity or performance or whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance, and any other matters the commission considers relevant (my emphasis).

7. (g)
    In her grievance, Ms Darlington specifically describes the decision by Queensland Police to dismiss her from her employment on medical grounds as unreasonable and sets out the reasons for this, the majority of which predominantly focus on capacity related issues. In addition, Ms Darlington raises concerns about the harshness of the decision and steps through the implications for herself and her family from a financial perspective.

8. (h)
    The outcomes sought by Ms Darlington, in resolution of her grievance, include the rescission of the decision by Queensland Police to dismiss her employment. She seeks ongoing employment in her role at the Albany Creek Station, or in other suitable alternative duties until early 2017. Separately, Ms Darlington also requests back pay associated with pay point progressions which she claims she has missed out on.

1. (i)
    In respect of the first two outcomes sought, Ms Darlington is seeking to have the decision made by Queensland Police to dismiss her for medical incapacity overturned and to be re-instated to a role within the Police Service until early January 2017.

10. (j)
     These are remedies that may be ordered by the Commission under s 78 of [the] Act on application by Ms Darlington under s 73 of the same Act.”

The grounds of appeal

8. [8]
   The grounds of appeal are that the Commissioner erred:

   1. (a)
      by finding that the appellant was seeking an injunctive order restraining the QPS from terminating her employment until such time as her grievance had been dealt with in accordance with procedures contained in clause 3.2 of the Award because the application was, in fact, to compel the respondent to comply with the status quo clause in the Award;
   2. (b)
      by finding that s 277(11) prevented her from granting an injunction because the appellant was not seeking an injunction for a proposed contravention of s 73 of the Act; and
   3. (c)
      by failing to find that the respondent was bound by the terms of clause 3.2 of the Award to maintain the status quo while the grievance procedure was engaged.
9. [9]
   The grievance procedure relied upon by the appellant is contained in cl 3.2 of the Award:

“3.2 Employee grievance procedures

The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion; to reduce the level of disputation; and to promote efficiency, effectiveness and equity in the workplace. This procedure applies to all industrial matters within the meaning of the Act.

Stage 1 - In the first instance the Employee will inform the immediate supervisor of the existence of the grievance and they will attempt to solve the grievance. It is recognised that an Employee may exercise the right to consult an (sic) Union representative during the course of Stage 1.

Stage 2 - If the grievance remains unresolved, the Employee will refer the grievance to the next in line management (‘the manager’). The manager will consult with the parties and attempt to resolve the grievance. The Employee may exercise the right to consult, or be represented by such Employee’s Union representative during the course of Stage 2.

Stage 3 - If the grievance is still unresolved, the manager will advise the Commissioner and the aggrieved Employee may submit the matter in writing to the Commissioner if such Employee wishes to pursue the matter further. If desired by either party, the matter will also be notified to the Union. The Commissioner will ensure that:

1. (a)
    the aggrieved Employee or such Employee’s Union representative has the opportunity to present all aspects of the grievance;

2. (b)
    the grievance will be investigated in a thorough, fair and impartial manner.

The Commissioner may appoint an independent person to investigate the grievance. The Commissioner may consult with the Union in appointing an investigating Employee. The appointed person will be other than the Employee's supervisor or manager.

If the matter is notified to the Union, the investigating Employee will consult with the Union during the course of the investigation. The Commissioner will advise the Employee initiating the grievance, such Employee’s Union representative and any other Employee directly concerned of the determinations made as a result of the investigation of the grievance.

The Commissioner may delegate grievance resolution powers under clause 3.2 to a nominated representative.

The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise:

Stage 1 Discussions should take place between the Employee and such Employee’s supervisor within 24 hours and the procedure shall not extend beyond 7 calendar days.

Stage 2 Not to exceed 7 calendar days.

Stage 3 Not to exceed 14 calendar days.

If the grievance is not settled the matter will be referred to the Commission by the Employee or the Union.

Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue whilst the procedure is being followed. No party will be prejudiced as to the final settlement by the continuation of work:

Provided that normal work is to continue where there exists circumstances envisaged by the provisions of clause 6.1.5, and in life threatening situations.

Where the grievance involves allegations of sexual harassment, an Employee may commence the procedure at Stage 3.” (emphasis added)

Section 277

10. [10]
    Before I deal with the grounds of appeal I need to consider the meaning of s 277 and of the prohibition it contains against granting injunctions of a certain type.
11. [11]
    The relevant parts of s 277 provide:

“(1) The commission may, on application, grant the injunctive order it considers appropriate—

1. (a)
    to compel compliance with an industrial instrument, a permit or this Act; or

2. (b)
    to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

…

3. (3)
    The commission cannot grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A.”

12. [12]
    The first observation which may be made is that, so far as s 277(11) speaks of a proposed contravention of sections 90 and 90A, it is not relevant to these proceedings as those sections concern situations where an employer decides to dismiss 15 or more employees.
13. [13]
    Secondly, it is not immediately obvious how there could be a “proposed contravention” of s 73. It does not impose obligations or restrictions – it defines an unfair dismissal:

“(1) A dismissal is unfair if it is—

1. (a)
    harsh, unjust or unreasonable; or

2. (b)
    for an invalid reason.”

14. [14]
    On the other hand, s 83 (which sets out what an employer must do to dismiss an employee) and s 87 (which deals with, among other things, employers contravening an order about severance allowance) are sections which could be contravened.
15. [15]
    The fact that it is not immediately obvious how s 277(11) works with s 73 because of the use of the words “proposed contravention” does not mean that a court is at liberty to ignore them or treat them as superfluous. All words must prima facie be given some meaning and effect. See Project Blue Sky Inc & Ors v Australian Broadcasting Authority.^[2] Further, s 14A of the Acts Interpretation Act 1954 provides:

“(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

16. [16]
    It must be accepted, though, that there are occasions in which it may not be possible to provide a full and accurate meaning to every word. See Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors.^[3] If that is the case, then the “sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, ‘if after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail.’”^[4]
17. [17]
    Chapter 3 of the Act deals with dismissals. It contains s 73. The chapter sets out in considerable detail what may and may not be done with respect to the termination of employment. As has been observed, s 73 defines “unfair dismissal” and it, together with s 74 and following, furnishes an employee who has been unfairly dismissed with an avenue for seeking redress.
18. [18]
    The word “contravention” has various shades of meaning. It can mean: breach, violation, infringement, non-observance, breaking, transgression, neglect, dereliction, failure to observe, non-compliance, departure from, or infraction. It is possible to read s 73 so that an employer who intends to unfairly dismiss could be regarded as departing from the standard for dismissals established, in part, by s 73. A construction of s 277(11) which gives that meaning to “contravention”, when used with respect to s 73, will produce the greatest harmony and the least inconsistency. While sections 90 and 90A are not relevant to this case, they do provide a context which supports a conclusion that s 277(11) is intended to cover circumstances where it is asserted that a proposed dismissal would be unfair or otherwise contrary to the Act.
19. [19]
    When the words of s 277(11) are read together in that way it is reasonably obvious that the sub-section is to have the effect of precluding the Commission from issuing an injunctive order against an employer who proposes to dismiss an employee. The effect of this construction is that there need only be one occasion when the fairness of a dismissal is tested, that is, after it has taken place. To do otherwise would expose an employer to litigation both before and after a dismissal.

Ground 1

20. [20]
    The application filed by the appellant in the Commission sought an injunction pursuant to s 277 of the Act compelling the respondent to comply with the status quo provision in cl 3.2 of the Award. It also sought an order restraining the respondent from contravening the Award by prohibiting the respondent from taking any further action that would result in non-compliance with the terms of cl 3.2.
21. [21]
    The appellant argues that she sought no relief with respect to any of the provisions referred to in s 277(11) of the Act.
22. [22]
    The respondent argues that, in the circumstances of this case, what was sought by the appellant was, in effect, an injunctive order prohibited by s 277(11).
23. [23]
    In the appellant’s notification of her grievance she stated that the decision to dismiss her from employment on medical grounds was unreasonable and then gave four reasons for that assertion. The outcomes she sought in the grievance procedure were:

    1. (a)
       that the decision notified by letter of 27 May 2016 to terminate her employment be rescinded,
    2. (b)
       that she be allowed to continue her employment until retirement on January 2017, and
    3. (c)
       that she be paid certain back pay.
24. [24]
    While the application does not refer to dismissal, it would if granted, have the effect of precluding the employer from acting in accordance with its decision for, at least, the time necessary to conclude the grievance procedure.
25. [25]
    There is no doubt that the respondent is bound by the award and it was not contended otherwise. But to grant this order, in the guise of enforcing a grievance procedure, would, at the same time, contravene s 277(11). The power to grant injunctions conferred by s 277(1) is confined by s 277(11) and those sub-sections must be read together. The fact that the same set of circumstances may be viewed from different perspectives does not insulate those circumstances if they otherwise come within s 277(11).  If the appellant’s argument were to be accepted, it would mean that, through the mechanism of seeking to enforce the terms of an award, a party could override the provisions of the Act.
26. [26]
    The Commissioner’s characterisation of the application was correct. It did seek an order which s 277(11) prohibited.

Grounds 2 and 3

27. [27]
    Both of these grounds rely upon a construction of the Act which, on the analysis above, is not available.

Conclusion

28. [28]
    The Commissioner did not err. The appeal is dismissed.