Hegarty v Townsville City Council
[2015] QIRC 165
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- Unreported Judgment
- Hegarty v Townsville City Council[2015] QIRC 165
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Hegarty v Townsville City Council[2015] QIRC 165
Hegarty v Townsville City Council[2015] QIRC 165
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hegarty v Townsville City Council [2015] QIRC 165 |
PARTIES: | Hegarty, Daryl Thomas (Applicant) v Townsville City Council (Respondent) |
CASE NO: | B/2015/18 |
PROCEEDING: | Application for an injunction |
DELIVERED ON: | 2 July 2015 |
HEARING DATES: | 2 July 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1.Application dismissed. 2.That within 21 days of this order, the Respondent re-issue its Show Cause Notice provided to the Appellant in relation to the allegations contained within Part B of the letter of 4 June 2015. 3.Liberty to Apply. |
CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR AN INJUNCTION - CERTIFIED AGREEMENT - Where an employer has made a series of allegations against an employee for misconduct - Where the allegations within the show cause notice were not sufficiently particularised - Where the applicant applied for an injunction retraining the respondent from contravening the Certified Agreement - Application dismissed. |
CASES: | Industrial Relations Act 1999 (Qld), ss 274(2), 277 Ganly v Queensland Audit Office (No 2) [2015] QIRC 114 Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees v The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Union of Employees and Another (1991) 136 QGIG 437 |
APPEARANCES: | Mr J. O'Donnell, advocate for the Applicant. Mr J. Healy and Ms K. de Lucy from the Respondent. |
Decision from the bench
- [1]This is an application by Daryl Thomas Hegarty seeking, pursuant to s 277 of the Industrial Relations Act 1999, an injunction compelling the Townsville City Council to comply with clause 19.2 of the Townsville City Council (Queensland Local Government Officers) Certified Agreement 2014. Clause 19.2 relevant provides as follows:
During any dispute, the status quo existing immediately prior to the matter giving rise to the dispute will remain, and work shall continue as it was prior to the dispute without stoppage, of the imposition of any ban, limitation or restriction.
- [2]The applicants seek the following decision from the Commission:
…(a)an injunction restraining the respondent for contravening the Townsville City Council (Queensland Local Government Officers) Certified Agreement 2014 till such times as the respondent provides the applicant with copies of the statement which led to the respondent giving the applicant the disciplinary letter dated 4 June 2015; and
(b)restraining the respondent from contravening the award by prohibiting the respondent from taking any action which would result in noncompliance with the terms of clause 19.2 of the award.
- [3]The applicant is a current employee of the Townsville City Council. Since 27 August 2014, he has been absent from his workplace, suspended on full pay. The applicant has been the subject of a number of show-cause applications and, in particular, a series of allegations which were issued to him on 18 February 2014 and again on 28 August 2014. By letter dated 4 June 2015, the applicant was advised by the Townsville City Council that, in regard to the allegation that on Wednesday, 5 February 2014 at approximately 5.15 pm, he did not demonstrate respect as a council officer towards employees of the Council in the public car park area of the Townsville City Council, that allegation was relevantly particularised.
- [4]The second allegation, namely, that on 18 February 2014 at approximately 4.30 pm, the applicant did not demonstrate integrity or respect as a council officer towards employees of the Council, again, that allegation was relevantly particularised. The applicant was advised that the investigation had been completed. And based upon interviews conducted and the documentation received, a preliminary finding had been reached that those allegations had been substantiated.
- [5]Part of the correspondence of 4 June 2015 were further allegations – a further allegation, rather, as follows:
In the course of your employment prior to the incident of 18 February 2014, you bullied and harassed staff of the Environmental Health Department through repeated intimidation, aggression, overbearing and combative conduct in your interactions with staff of that department.
- [6]The particulars relied on by the Council were set out in a number of extracts from staff interviews, again, contained within the letter of 4 June 2015.
- [7]The applicant in their submissions has drawn my attention to a recent decision of Commissioner Neate of the Industrial Commission, which is cited as Ganly v Queensland Audit Office (No 2) [2015] QIRC 114. That was a decision involving an employee of the Queensland Audit Office who applied to the Industrial Relations Commission for an injunction under s 277 of the Industrial Relations Act 1999 to prevent disciplinary action being taken in relation to him by the respondent under the Public Service Act 2008. In particular, the application was brought to prevent the related grievance first being dealt with in accordance with the procedures contained in the Queensland Public Service Award – State 2012.
- [8]The applicant's grievance in that case related to a letter to him dated 22 August 2014 signed by the Deputy Auditor-General in which the applicant was invited to show cause why a disciplinary finding should not be made against him in relation to allegations that he had accepted and used a free car park from an audit client. On 17 October 2014, the Deputy Auditor-General wrote to the applicant advising that he had carefully considered all the evidence before him and had determined that the allegations were substantiated on the balance of probabilities. He found that the Applicant was liable for disciplinary action under section 188 of the Public Service Act 2008 and that he was giving consideration to imposing a specified penalty, including a reduction of classification and consequential changes of duties.
- [9]On 13 November 2014, the applicant lodged an employee grievance with his manager about the decision to find the allegation against him to be substantiated and the decision to seriously consider a demotion as the proposed penalty. In that matter, the Commissioner, having considered the evidence and the submissions, published his reasons on 2 June 2015 and held that the applicant was entitled to an injunction against the respondent.
- [10]The matters currently before the Commission are different. There are different statutory provisions. In fact, the respondent was being dealt with under the Public Service Act 2008, but had also and relevantly had made an application to his employer for a grievance procedure which brought it within the ambit of the relevant award provisions. The current matter before the Commission – there is no evidence that a similar set of circumstances exist. What needs to be considered in this matter is that, pursuant to section 277 of the Industrial Relations Act 1999, the Commission has power as follows:
The Commission may, on application, grant injunctive order it considers appropriate to compel compliance with an industrial instrument, a permit or this Act; or to restrain a contravention or continuance of a contravention of an industrial instrument, a permit or this Act.
- [11]To succeed in obtaining an injunction in this circumstances, the applicant needs to show that there is a serious matter to be tried. The legitimate use of a power to grant an injunction should be, on the authorities, exercised sparingly. I am particularly aware of the decision in Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees v The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Union of Employees and Another (1991) 136 QGIG 437, where Justice Moynihan, the then President of the Industrial Court of Queensland, wrote the following:
The power to grant relief sought is a statutory one given to a statutory tribunal. The occasion for its exercise does not then arise unless it is demonstrated that a party against whom the relief is sought is not complying with an award, industrial agreement or the Act or is acting in breach of it.
- [12]It therefore follows that there must be evidence before the Commission that there has been a noncompliance with an industrial instrument, permit or the Act, or there is a contravention of an industrial instrument, a permit or the Act, and it is continuing or anticipated. There is no such evidence before the Commission that that is the case. It therefore follows that the application must fail. Having said that, I am minded of the provisions of the Industrial Relations Act 1999, in particular, section 274(2) of the Act, a general provision providing that:
The Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
- [13]In particular, subsection 274(2) of the Act provides that:
Without limiting subsection (1), the Commission in proceedings may give directions about the hearing of a matter; or make a decision it considers appropriate, irrespective of the specific relief sought by a party; or make an order it considers appropriate.
- [14]I’m minded that, in the letter to the Industrial Registrar dated 29 June 2015, the Council advised that it was prepared to reissue the letter of 4 June 2015 and reframe the allegations so as to enable Mr Hegarty to properly respond. In argument before the Commission today, it is apparent that there are serious defects, in my view, in the way that the show-cause letter has been framed. And it fails to properly, again, in my view, to particularise the allegations to which Mr Hegarty is asked to respond. I would therefore order that, within 21 days of today, that the Council reissue its show-cause notice in relation to the allegation contained within part B of the letter of 4 June 2015, namely, that:
In the course of your employment prior to the incident of 18 February 2014, you bullied and harassed staff of the Environment Health Department through repeated intimidation, aggression, overbearing and combative conduct in your interaction with staff of that department.
- [15]Throughout the proceedings this morning, it has been a matter of concern to me that there has been a significant delay in the dealing with the allegations that have been made against Mr Hegarty. The delay has, again, in my view, been inordinate, and it’s appropriate this matter be quickly and appropriately dealt with so that the matters between the parties can be dealt with.
- [16]Now, gentlemen, in terms of any subsequent orders, as far as getting the letter reissued, it is a matter for the Council whether it reissues it or it declines not to reissue. It may say that there is not sufficient material there before it that they could justify the allegation. Mr Healy, that might be the view that you take. If that is the course, well, then, you need to promptly deal with the other issues that Mr Hegarty has against him. I am not going to make any orders there. But what I propose to do is that I will give the parties liberty to apply to come back before me, if it is necessary to try and get this matter dealt with, if there are any delays or ordinate delays that cause concern to either side in terms of response or in terms of reply.
Orders
- [17]I make the following orders:
- Application dismissed.
- That within 21 days of this order, the Respondent re-issue its Show Cause Notice provided to the Appellant in relation to the allegations contained within Part B of the letter of 4 June 2015.
- Liberty to Apply.