Dalley v Kelsey[2018] ICQ 6

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   In Kelsey v Logan City Council & Ors^[1] Industrial Commissioner Thompson ordered that Sharon Kelsey, the first respondent, be reinstated to her position as Chief Executive Officer of Logan City Council pending the hearing and determination of her substantive application.
2. [2]
   There are two appeals from that order. This decision applies to both appeals.

Background

3. [3]
   On 27 June 2017, Ms Kelsey was appointed as the Chief Executive Officer of Logan City Council.
4. [4]
   The appellants in 2018/8, Cherie Marie Dalley, Russell Bruce Lutton, Stephen Frederick Swenson, Laurence William Smith, Phillip Wayne Pidgeon, Trevina Dale Schwarz and Jennifer Rachel Julie Breene, are elected Councillors of Logan City Council. The first appellant, Cherie Marie Dalley, is the Acting Mayor. The third respondent is Timothy Luke Smith, who was at the relevant times the Mayor but has been suspended from exercising that office.
5. [5]
   Ms Kelsey’s contract of employment (the contract) contained a six month probationary period during which her employment could be brought to an end on two weeks’ notice.
6. [6]
   The contract also provides:

“2.3 Probationary Period

1. (a)
   The Executive will be subject to a six month probationary period from the Commencement Date.

2. (b)
   During the Probationary Period, either Party may terminate the Executive’s Employment upon the provision of two weeks’ written notice, or, in the case of Council, payment of two weeks of the Remuneration Package in lieu of notice.”

“10.1 Termination with notice

1. (a)
   Unless otherwise agreed in writing by the Parties, the Executive’s Employment with the Council will terminate automatically on the Expiry Date without the need for further notice to the Executive.

2. (b)
   Either Party may terminate the Executive’s Employment at any time prior to the Expiry Date, provided that the required notice is given in writing.

3. (c)
   Subject to clause 10.2, where the Council wishes to terminate the Executive’s Employment following the completion of the Executive’s probationary period, the Council must provide:

1. (i)
   for a termination on the grounds of poor performance in the Position, 2 months’ notice; and

2. (ii)
   for any other reason, the lesser of 6 months’ notice, or the remaining period of time until the Expiry Date.”

7. [7]
   On 10 October 2017, Ms Dalley (first appellant), Ms Schwarz (sixth Appellant) and Mr Smith (third Respondent in C/2018/8 matter), conducted a performance review meeting with Ms Kelsey.
8. [8]
   During this meeting, the Councillors present told Ms Kelsey that there were concerns with her performance.
9. [9]
   On 12 October 2017, Ms Kelsey, through her solicitors, issued correspondence to each of the Councillors, the Crime and Corruption Commission, and to the Minister for Local Government, alleging possible misconduct on behalf of Mr Smith.
10. [10]
    On 1 December 2017, Ms Kelsey commenced proceedings against the Council and Mr Smith, alleging contraventions of s 285 of the Industrial Relations Act 2016 (Qld) (IR Act) and s 48 of the Public Interests Disclosure Act 2010 (Qld) (Proceeding PID/2017/3).
11. [11]
    On 25 January 2018, Ms Kelsey sought interlocutory orders restraining the Council from voting on the continuation of her employment, and restraining Mr Smith from being involved in the consideration of her employment. Ms Kelsey was unsuccessful against Logan City Council, but interlocutory orders were made restraining Mr Smith from taking certain steps in respect of Ms Kelsey’s employment.
12. [12]
    On 7 February 2018, the Council voted to terminate Ms Kelsey’s appointment as Chief Executive Officer. Her employment was brought to an end by the Council giving her two weeks’ notice.
13. [13]
    Ms Kelsey subsequently amended her application to include the named Councillors as respondents.
14. [14]
    On 10 April 2018, Ms Kelsey filed a further amended application which sought, relevantly:

“5.2 An interim order pursuant to section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated or alternatively that the First Respondent recommence paying the Applicant’s normal salary (including backpay to the date of her dismissal) until the hearing and determination of this proceeding.”

15. [15]
    On 4 May 2018, Commissioner Thompson granted the relevant interim order:

“2. That pursuant to s 314(1)(a) of the Industrial relations Act 2016 (Qld) and ss 51 and 52 of the Public Interest Disclosure Act 2010 (Qld):

1. (i)
   Sharon Kelsey be reinstated to the position of Chief Executive Officer of the Logan City Council effective from 8.00am on Monday 14 May 2018; until the hearing and determination of PID/2017/3; and

2. (ii)
   Sharon Kelsey’s employment is to be subject to the terms and conditions contained in her Employment Agreement (executed by the parties on 2 June 2017) as being applied at the date of the termination (7 February 2018).” 

16. [16]
    On 10 May 2018, the appellants in 2018/8 filed an application for a stay of those orders.
17. [17]
    On 11 May 2018, I stayed those orders until the determination of the appeal from them. I further ordered that Logan City Council make payments to Ms Kelsey from 14 May 2018 as if she were the Chief Executive Officer until the determination of the appeal.
18. [18]
    Two appeals have been brought from the interlocutory order made by Commissioner Thompson.
19. [19]
    The first application to appeal was made by the seven Councillors named above (the Councillor appellants) and they seek the making of orders as follows:

“That Order 2 of the Orders made by Industrial Commission Thompson in the Application for Interim Orders delivered at Brisbane on 4 May 2018 be set aside and in lieu thereof, the following orders be substituted: That the Application be otherwise dismissed.”

20. [20]
    Mr Smith, the third respondent in proceeding C/2018/8, also filed an Application to Appeal against the decision - C/2018/10. Mr Smith seeks orders that:

“…Order 2 of the Orders made by Industrial Commission Thompson in the Application for Interim Orders delivered at Brisbane on 4 May 2018 be set aside and in lieu thereof, the following orders be substituted:

That the Application be otherwise dismissed; or, in the alternative,

That the salary of the Applicant (Ms Sharon Kelsey) be paid by the First Respondent (the Logan City Council) from 4 May 2018 until the hearing and determination of PID/2017/3.”

21. [21]
    The second respondent, the Council, supports the making of the orders sought in  the notice of appeal, and submits that the Court should exercise the discretion itself, rather than referring the matter back to the Commissioner for decision.

The legislation

22. [22]
    Section 285 of the IR Act provides:

“285 Protection

1. (1)
   A person must not take adverse action against another person—

1. (a)
   because the other person—

1. (i)
   has a workplace right; or

2. (ii)
   has, or has not, exercised a workplace right; or

3. (iii)
   proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or

2. (b)
   to prevent the exercise of a workplace right by the other person.

Note—

This subsection is a civil penalty provision.

2. (2)
   A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.

Note—

This subsection is a civil penalty provision.”

23. [23]
    Section 314 of the IR Act provides:

“314 Orders on deciding application

1. (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. (a)
   an order for reinstatement of the person;

2. (b)
   an order for the payment of compensation to the person;

3. (c)
   an order for payment of an amount to the person for remuneration lost;

4. (d)
   an order to maintain the continuity of the person’s employment;

5. (e)
   an order to maintain the period of the person’s continuous service with the employer;

6. (f)
   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.

2. (2)
   A person to whom an order under subsection (1) applies must not contravene a term of the order.

Note—

This subsection is a civil penalty provision.”

24. [24]
    The parties referred to the “reverse onus” provisions in s 306 of the IR Act. It provides:

“306 Reason for action to be presumed unless proved otherwise

1. (1)
   Subsection (2) applies if—

1. (a)
   in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

2. (b)
   taking that action for that reason or with that intent would be a contravention of the provision.

2. (2)
   It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

3. (3)
   Subsection (2) does not apply in relation to orders for an interim injunction.”

25. [25]
    Section 48 of the PID Act provides:

“48 Right to apply to industrial commission

1. (1)
   An application for an injunction about a reprisal may be made to the industrial commission if the reprisal—

1. (a)
   has caused or may cause detriment to an employee; and

2. (b)
   involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act.

2. (2)
   The application may be made by—

1. (a)
   the employee; or

2. (b)
   an industrial organisation—

1. (i)
   whose rules entitle it to represent the industrial interests of the employee; and

2. (ii)
   acting in the employee’s interests with the employee’s consent;                       or

3. (c)
   the Crime and Corruption Commission acting in the employee’s interests with the employee’s consent if—

1. (i)
   the employee is a public officer; and

2. (ii)
   the reprisal involves or may involve an act or omission that the Crime and Corruption Commission may investigate.

3. (3)
   The Industrial Relations Act 2016, section 473 applies to the application, but this part prevails if it is inconsistent with that section.

4. (4)
   If the industrial commission has jurisdiction to grant an injunction on an application under subsection (1), the jurisdiction is exclusive of the jurisdiction of any other court or tribunal other than the Industrial Court.

5. (5)
   Without limiting this section, the application is an industrial cause within the meaning of the Industrial Relations Act 2016.”

Grounds of appeal – C/2018/8 and C/2018/10

26. [26]
    The major grounds of appeal for both appellants are broadly similar and may be dealt with together. Each of the appellants adopted the other’s arguments. The Council supported the appellants and adopted their arguments.

Was the correct test correctly applied?

27. [27]
    The test to be applied when considering whether to grant an interlocutory injunction is prescribed in ABC v O'Neill^[2] where Gummow and Hayne JJ said:

“[65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

‘The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’”

28. [28]
    That test was identified by the Industrial Commissioner at [9] and [64] of his reasons. The appellants contend that, having correctly stated the test, the Industrial Commissioner failed to apply it correctly. They point to the following paragraphs as being demonstrative of that error:

“[71] In terms of the Interlocutory Order it is necessary at this time to examine the evidence of the Third to Ninth Respondents, not necessarily in a forensic way but on its face as to whether that evidence at trial would remain in place or was there a likelihood on the balance of probabilities of that not being the case. In doing so I would firstly consider the Council meeting of 7 February 2018 and then matters relevant to the period of the lead up to that meeting.

…

[131] On consideration of the evidence before the proceedings I am satisfied that the termination of the Applicant's employment on 7 February 2018 by the First Respondent led to her suffering an adverse action and if the evidence of the Applicant was to remain unchanged there are prospects that the Applicant would be entitled to relief of a nature sought in the Further Amended Application on the basis of reprisal action taken against her pursuant to the provisions of the IR Act for having exercised a workplace right.

[132] There had also been a consideration of the evidence of the Third to Ninth Respondents in respect of their role in voting to terminate the Applicant's employment and that evidence had not established in my view any grounds that would on the face extinguish all prospects for the Applicant at trial.” (emphasis added)

29. [29]
    In considering the evidence before him, the Industrial Commissioner also took into account evidence which did not then exist but which, if it did emerge at the final hearing, might bear upon the result. For example, he said:

“[98] In the determination of the substantive matter I would expect that the Applicant would be entitled to explore with the Third to Ninth Respondents the breadth of their activity in and around the issue of the PID and the proceedings in the Commission regarding the Applicant's employment. In some respects this view is borne out by the affidavit of the Third Respondent [Exhibit 14] in terms of her conduct on 13 October 2017 when advised of the public interest disclosure. The Third Respondent recalled being ‘extremely upset during the meeting’ having just finished reading the PID and at paragraph 142 of the affidavit gave the following evidence in respect of the Applicant's handling of the PID:

‘As a result of my immediate upset at the unnecessary public nature in which this matter was handled, in the heat of the moment, in a private meeting of Councillors, I recall making comments to the effect that:

a. I was breathing fire (indicating how upset I was);

b. I would only talk to Ms Kelsey where my role required it, but otherwise that was it, and my mind was made up...’

[99] Whilst it was said by Dalley her comments were made ‘in the heat of the moment’, and while ‘discussing my upset at a public manner in which the PID had been made’ she had not acted on those comments. It may be open to the Applicant to seek to make a connection between this conduct on 13 October 2017 and the actions of the Third Respondent in the course of the Special Council meeting on 7 February 2018.

...

[126] The Third to Ninth Respondents were said to have been informed by the First Respondent's Counsel on 7 February 2018 that they were not required to rely solely on or be bound by the Hunter Report with the evidence before the proceedings being that without any consultation between the seven Councillors making up this block of Respondents they unilaterally decided to remove the Hunter Report from the reasons relied upon to effect the Applicant's termination in the face of legal advice that the Report was ‘only’ one of the pieces to be considered. This would appear to be another area where there may be some question of the evidence remaining as that is likely to be subject to enquiry.”

30. [30]
    The appellants submitted that the Industrial Commissioner erred because he interpreted his task as having to assess whether the evidence at the final hearing would be the same as that which was before him. It was argued that the Industrial Commissioner was identifying topics for cross-examination which might result in helpful evidence for Ms Kelsey.
31. [31]
    Further, it was submitted that the finding of the Industrial Commissioner in [132] to the effect that the evidence of the Councillor appellants had not established any grounds that would on their face “extinguish” all prospects for the Applicant at trial, demonstrated that that the correct test not been applied.
32. [32]
    The argument advanced for Mr Smith may be summarised in this way: the Industrial Commissioner erred by

1. (a)
   considering whether the evidence would “remain in place” at the final hearing;
2. (b)
   effectively requiring the appellants to disprove Ms Kelsey’s allegations;
3. (c)
   conducting a hypothetical assessment of what might occur at the final hearing and speculating about what might emerge from cross-examination.

33. [33]
    For Ms Kelsey, it was argued that the Industrial Commissioner was entitled, when considering whether there was a sufficient likelihood of success to justify making the order sought, to rigorously consider the evidence, including how it would stand at trial and what might occur at trial. This, it was said, was particularly important because of the reverse onus that will apply at the final hearing.
34. [34]
    The question, at this point, is whether the Industrial Commissioner correctly applied the test in ABC v O'Neill.
35. [35]
    The Industrial Commissioner did not, with respect, confine himself to the correct test. He did, so far as the first leg of the test is concerned, engage in impermissible speculation about the nature of the case which might be available to Ms Kelsey in the final hearing. For example:

1. (a)
   in [71] he referred to whether the evidence at trial would “remain in place” or whether there was there a likelihood on the balance of probabilities of that not being the case,
2. (b)
   in [98] he expressed an expectation that Ms Kelsey would be entitled to explore with the Councillors the breadth of their activity in and around the issue of the Public Interest Disclosure, and
3. (c)
   in [99] he said that it might be open to make certain connections between particular types of conduct.

36. [36]
    In those examples, the Industrial Commissioner engaged in speculation about the evidence at the final hearing when he was required to assume it would be unchanged.
37. [37]
    In [132] he said that evidence from the Councillors had not established any grounds that would extinguish all prospects for Ms Kelsey at trial. In doing that he applied a condition which is inconsistent with the requirements in ABC v O'Neill. In an application of this type, the decision-maker is required to consider whether the applicant has established a prima facie case. This was reversed by the Industrial Commissioner when he, effectively, asked whether such a case had been disproved. He was not, at that point, considering the possible application of the reverse onus.
38. [38]
    The Industrial Commissioner erred by not applying the correct test to determine whether a prima facie case existed. That is a sufficient basis to allow the appeal.^[3] There were other grounds which were advanced, but (apart from one) they were put in the alternative and need not be considered. The other, independent ground was that the Industrial Commissioner had not assessed the strength of the prima facie case he had found to exist. That step is a requirement of the process to be undertaken on an application of this type.^[4] It is a step which the Industrial Commissioner does not appear to have taken.
39. [39]
    The appeals are allowed.

Disposition?

40. [40]
    The appellants submitted that, if their appeals were successful, this Court should not remit the matter to the Commission, but determine the application. The respondent supported that submission.
41. [41]
    Section 558(1)(b) of the IR Act allows the Court to take those steps and it is appropriate in this case.

The application for an interim injunction

42. [42]
    All parties relied upon affidavits which had been filed either in support of, or in opposition to, Ms Kelsey’s application. No deponents were cross-examined. Some of the evidence of the Councillors was the subject of criticism in the sense that it was compared to other material and its weight was doubted. But that evidence was not challenged in the traditional way. Where, on an application of this type, a deponent is unchallenged then, unless the evidence is inherently incredible, the decision maker should proceed on the basis that it would be accepted on the trial of the substantive application.^[5] This principle has been expressed in a number of ways and with some conditions, for example:

1. (a)
   “[21] Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say ‘prima facie’ because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.”^[6]
2. (b)
   “[86] I would interpolate here a reference to the following passage from the judgment of Newton J in Bulstrade v Trimble 1970] V.R. 840 where, at 849, he said:

‘I know of no case where it has been held that where evidence of a witness upon a particular matter is allowed to pass without cross examination, but evidence of a substantial character is called by the opposite party in direct contradiction thereof, the judge or jury is required in law to accept the former evidence. And, in my view, this is plainly not the law.’

[87] In my opinion there is no inconsistency between this statement of the position and that stated by Rolfe A-JA …. The critical issue where there is no cross examination of a particular witness, including an expert witness, is whether, as in the present case, there is a credible body of evidence of a substantial character in direct contradiction of the non-cross-examined evidence.”^[7]

3. (c)
   “[112] There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. In the present case there is no such body of evidence…”^[8]

43. [43]
    It can be seen from those extracts that: 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.
44. [44]
    At the hearing below, it was submitted for Ms Kelsey that the most relevant action was the termination of her employment. There are many questions to be resolved with respect to whether some of the activities of the Council, the Mayor and the respondent Councillors before the termination amount to adverse action under the IR Act.  Unlike the Fair Work Act 2009 (Cth), the IR Act does not provide that the actions of employees, officers and so on can be attributed to the employer. Thus, Ms Kelsey would need to rely on general principles of vicarious liability to establish the Council’s liability for particular actions of its Councillors.
45. [45]
    It may be accepted, though, that, if the pre-conditions in s 285 of the IR Act are satisfied, termination of employment is adverse action. That presumption arises because of the effect of s 306 of the IR Act which reverses the onus and creates the presumption in favour of an applicant. That reversal, though, does not apply at an interlocutory level.
46. [46]
    While s 306(3) provides that the reverse onus does not apply in relation to orders for an interim injunction, that does not mean that the effect of s 306 may be ignored. The cognate provision in the Fair Work Act 2009 (Cth) is s 361. Its indistinguishable predecessor was s 809 of the Workplace Relations Act 1996 (Cth). It was considered by Greenwood J in CPSU v Blue Star Pacific Pty Ltd.^[9] I respectfully agree with what his Honour said about the effect of that section:

“[24] Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction. However, it seems to me that the correct approach is this. The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial. At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out. In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application. The presumption cannot be determinative of the interlocutory application but its operation in the context of the trial is relevant to the strength of the probability of success at trial.” (emphasis added)

47. [47]
    To similar effect was the consideration given to this point by Ryan J in Police Federation of Australia v Nixon^[10] where, at [69] he said:

“If the effect of s 809(2) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent's reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme, if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the Court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption that the respondent's conduct was for a prescribed reason or for reasons that included a prescribed reason. However, I do not construe s 809(2) as preventing the Court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief…” (emphasis added)

48. [48]
    In order to succeed at this level of hearing, Ms Kelsey must demonstrate a prima facie case that the Council terminated her employment because one of the factors in s 285(1)(a) of the IR Act was present. At the final hearing, Ms Kelsey must demonstrate the causal link between her activity and the adverse action. She is aided in that by the imposition of the reverse onus on the employer and, unless the Council has in some way announced that it was acting in a way that contravened s 285, one would expect that she would ask the Commission to infer the causal link from all the relevant evidence in the light of that reversed onus.
49. [49]
    In this case, the reasons of the Councillors who voted for her dismissal are relevant. The Council is a corporation which can only “decide” things by a vote of the Councillors. The way in which this type of issue needs to be considered – at a final hearing – was dealt with in Board of Bendigo Regional Institute of Technical and Further Education v Barclay^[11] where French CJ and Crennan J (dealing with the relevant provisions of the Fair Work Act) said:

“[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.^”

50. [50]
    What, then, was the evidence of the Councillors before the Commission? Each of the Councillors set out their individual reasons for voting to dismiss Ms Kelsey. As I have noted above, none of them were cross-examined. Each of them gave evidence by affidavit in which they set out what they said motivated them to vote for termination. Those reasons were set out in some detail and I will not repeat them save to say that, if they were to constitute the only evidence at the final hearing, then it is likely that the Council would discharge its onus under the IR Act. But that is not the only evidence.
51. [51]
    Mr Murdoch QC submitted that there was a “sound basis to doubt the veracity” of the Councillors’ evidence. There were a number of grounds advanced to support that proposition. They were:

1. (a)
   Ms Kelsey had not been made aware of the reasons for the decision to terminate her employment until the Councillors’ affidavits were provided.
2. (b)
   At no time before the provision of the affidavits were performance issues raised with Ms Kelsey.
3. (c)
   The report which had been created (the Hunter Report) as part of the probationary process had been given little to no weight by the Councillors.
4. (d)
   The concerns raised in the affidavits are matters that ordinarily would have been the subject of discussion with Ms Kelsey over the period of her employment. As they had not been discussed, Ms Kelsey argues that they were not as important as the Councillors now make them out.
5. (e)
   Some of the matters raised were trivial, and it was not credible that they would have such an impact for so many Councillors.
6. (f)
   Notwithstanding the reservations now expressed by the Councillors, they were generally positive in their dealings with and comments to Ms Kelsey before she made the PID.
7. (g)
   Many of the criticisms now made are inconsistent with the context in which those concerns are said to have arisen.
8. (h)
   On the basis of the Councillors’ evidence, the only joint discussion before the vote focused on risk mitigation, as opposed to genuine discussion and debate as to Ms Kelsey’s performance.
9. (i)
   Some of the Councillors had already confirmed that a letter received from Ms Kelsey’s solicitors had an impact on them.
10. (j)
    Ms Kelsey led evidence as to the change in demeanour of the Councillors following the PID.

52. [52]
    While each of those matters, either alone or in combination with the others, might lead to a conclusion that the Councillors’ evidence should be subject to some doubt, in the absence of any cross-examination on those matters a decision maker is denied the opportunity to make the necessary, informed assessment. It is correct, as was submitted for Ms Kelsey, that there needs to be an enquiry to examine the reasoning employed by those persons whose decisions lead to the ultimate decision.^[12] But, that enquiry takes place at the final hearing.
53. [53]
    There is material available to Ms Kelsey which, depending upon the outcome of any cross-examination, might lead to a conclusion that the reasons advanced by the Councillors should not be accepted as being the only motivations for the votes which they cast to terminate her employment. In the material provided to the Industrial Commissioner, the Councillors advanced arguments which sought to explain why some of the matters advanced on behalf of Ms Kelsey were of little importance. This, though, is an interlocutory hearing and it is both inappropriate and impossible to form a final view on any of the issues raised.
54. [54]
    At this stage I have considered whether a prima facie case has been established on the basis that the evidence will remain unchanged. But I also take into account that at a final hearing Ms Kelsey will have the advantage of the reverse onus. I must also not speculate about what might occur at the final hearing. I should not and do not take into account, at this stage, the nature of the resolutions put before the Council. The form they took is a matter for the Council itself. The fact that there was no debate came about because, in the absence of any speech in favour of the resolution, meeting procedure meant that nobody could speak against the motion. That may well be an issue to be explored but, in the absence of evidence about the usual conduct of Council meetings, it is difficult to say any more.
55. [55]
    The case which I now have to consider is one in which there was sworn evidence as to the reasons for Councillors voting in a particular way. Against that was a series of propositions designed to throw that evidence into doubt. The evidence from the Councillors was not inherently incredible or implausible. For the reasons I have set out above, and for the purposes of this interlocutory application, that evidence is sufficient to demonstrate that, on the whole of the evidence, the necessary prima facie case was not established. Her application should be dismissed.
56. [56]
    Should I be wrong in that view, I will consider, briefly, the issue of the balance of convenience.

Balance of Convenience

57. [57]
    I will assume for the purposes of this examination that the prima facie case has been established but that it is a weak case.^[13]
58. [58]
    Some of the factors which the appellants argued should be taken into account with respect to this issue include:

1. (a)
   the short period of service of  Ms Kelsey,
2. (b)
   that her contract provided that her employment was terminable on the giving of six months’ notice or payment in lieu,
3. (c)
   that if she were to be reinstated she would, as CEO, be required to work (in a limited or indirect way) with the appellant Councillors.

59. [59]
    Another important feature is that Ms Kelsey would be working for a body (the Council) with which she is engaged in litigation. Of course, that is not a disqualifying factor by itself because that is the position which will obtain whenever an action of this kind is brought. It was argued for Ms Kelsey that the ordinary day to day activities of the CEO are concerned more with employees of the Council than the Councillors themselves. So much may be accepted.
60. [60]
    The Council submitted that it should not be required to continue the employment of a person who:

1. (a)
   holds the highest employed position in the Council,
2. (b)
   and who has substantial statutory duties

when that person is suing the Council.

61. [61]
    It was argued for Ms Kelsey that she would suffer great prejudice by being denied her salary during the period awaiting the hearing of her application and that she would also suffer from the loss of the non-pecuniary benefits of employment.
62. [62]
    Given the (assumed) weakness of the prime facie case, I would not have held that the balance of convenience favoured the making of an interlocutory order for reinstatement.

Conclusion

63. [63]
    In each appeal:

1. (a)
   The appeal is allowed ,and
2. (b)
   The application is dismissed.