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Elford v State of Queensland (State Library of Queensland)[2015] QIRC 176

Elford v State of Queensland (State Library of Queensland)[2015] QIRC 176

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Elford v State of Queensland (State Library of Queensland) [2015] QIRC 176

PARTIES:

Tricia Elford

(Applicant)

v

State of Queensland (State Library of Queensland)

(Respondent)

CASE NO:

B/2015/25

PROCEEDING:

Application for Injunction

DELIVERED ON:

14 October 2015

HEARING DATES:

7 October 2015

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The Respondent is hereby restrained from taking any further steps under Chapter 6, Part 2 of the Public Service Act 2008 with respect to the action against the Applicant initiated by it through the letter of 18 February 2015 under the hand of Janette Wright, CEO and State Librarian, until the grievance raised by the Applicant in her letter of 9 August 2015 pursuant to clause 3.2 of the Queensland Public Service Award - State 2012 is finalised.

CATCHWORDS:

INDUSTRIAL RELATIONS - disciplinary proceedings against employee commenced under Public Service Act 2008 - employee initiated grievance process under relevant Award before disciplinary process complete - employee sought an injunction from Commission to restrain Respondent from proceeding with disciplinary process until grievance dealt with - alleged breach of Award by Respondent not preserving the status quo - whether the Commission has power to grant the injunction - whether a directive of the Public

Service Commission Chief Executive prevails over the grievance procedure under the Award - whether the Commission should exercise its discretion to grant an injunction.

CASES:

Freier v Jordan and the State of Queensland [2002] QSC 385

Ganly v Queensland Audit Office (No 2) [2015] QIRC 114

Ganly v Queensland Audit Office [2015] QIRC 108

McEldowney v Forde [1969] 2 All ER 1039

Queensland v Central Queensland Land Council Aboriginal Corporation  (2002) 125 FCR 89

Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 97

Young v Tockassie (1905) 2 CLR 470

APPEARANCES:

Mr K. Watson, counsel instructed by Moriarty and Associates, for the Applicant

Dr M.  Spry, counsel instructed by Crown Law, for the Respondent

Decision

  1. [1]
    Tricia Elford ("the Applicant") has been employed by the State of Queensland ("the Respondent") at the State Library of Queensland since October 2010.  In November 2014, the Respondent commenced disciplinary proceedings against her under the Public Service Act 2008 ("the PS Act").  Those proceedings reached the stage where Janette Wright, the CEO and State Librarian, considered that a majority of the allegations against the Applicant had been substantiated and Ms Wright was seriously considering whether to terminate the Applicant's employment.  The Applicant's solicitor sent notification of a grievance under the Queensland Public Service Award - State 2012 ("the Award") to Professor Jan Thomas, the Chairperson of the Library Board of Queensland ("the Chairperson"). 
  1. [2]
    The Chairperson replied that she did not consider the Applicant's grievance constituted an "industrial matter" for the purposes of the Industrial Relations Act 1999 ("the IR Act") and determined not to accept the Applicant's letter as a grievance under the Award.  Accordingly, there was no requirement to maintain the status quo.  Ms Wright then wrote to the Applicant offering her a further seven days within which to respond to the proposed penalty of termination of her employment after which Ms Wright would make a decision on the proposed penalty.
  1. [3]
    The Applicant has applied to the Queensland Industrial Relations Commission ("the Commission") for an injunction pursuant to s 277 of the IR Act:
  1. (a)
    compelling the Respondent to comply with the status quo provision in clause 3.2.8 of the Award, which is a certified industrial instrument; and
  1. (b)
    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 clause 3.2.8 of the Award.
  1. [4]
    Prior to the hearing, the Respondent undertook not to take any action or make any decisions in relation to the Applicant until this matter had been heard.  On the day of the hearing, the Respondent undertook not to take any action or make any decision in relation to the Applicant until the decision is released.

 Issues

  1. [5]
    Section 277 of the IR Act confers the power to grant injunctions.  Subsection (1) states:

 "(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
  1. (b)
    to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act." (emphasis added)
  1. [6]
    Subsection (2) provides that an application for an injunction may be made by "a party to … an industrial dispute."  Schedule 5 to the IR Act defines "industrial dispute" to mean:

"(a) a dispute, including a threatened or probable dispute, about an industrial matter; or

"(b) a situation that is likely to give rise to a dispute about an industrial matter."  (emphasis added)

  1. [7]
    Section 7 of the IR Act contains the following definition of "industrial matter:"

"(1) An industrial matter is a matter that affects or relates to-

  1. (a)
    work done or to be done; or
  1. (b)
    the privileges, rights or functions of-
  1. (i)
    employers or employees; or
  1. (ii)
    persons who have been, or propose to be, or who may become, employers or employees; or
  1. (c)
    a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
  1. (2)
    However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence.
  1. (3)
    Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1."  (emphasis added)
  1. [8]
    The Applicant submits that the Commission must consider the following three issues in relation to her application for injunctive relief under that section:
  1. (a)
    Is there a failure to comply with, or a breach or threatened breach of, an industrial instrument?
  1. (b)
    Is the Applicant a party to an industrial dispute?
  1. (c)
    Is there an industrial matter?
  1. [9]
    On the basis that the answer to each of those questions is "Yes," the Applicant submits that there is no reason why an injunction should not issue.
  1. [10]
    However, the Respondent submits that:
  1. (a)
    the Commission lacks jurisdiction to hear and determine the Applicant's application for injunctive relief; or
  1. (b)
    if the Commission decides it does have jurisdiction to make the orders sought by the Applicant, the Commission should not exercise its discretion to grant the injunctions sought because of the extensive delay on the Applicant's part in lodging her grievance.
  1. [11]
    Having regard to the way in which these matters were argued, it is appropriate to set out first the factual context in which the issues arise, and then deal with the submissions concerning the Commission's jurisdiction.

 Background

  1. [12]
    The parties provided the Commission with an agreed statement of facts and supporting documents.  The following summary draws on that statement and those documents.
  1. [13]
    The Applicant is employed by the Respondent as Manager, Local Government Strategy (AO7), Regional Partnerships.  She is employed pursuant to the PS Act and her employment is covered by the Award.
  1. [14]
    On 29 October 2014, Ms Wright wrote to the Applicant advising that she had received allegations from a member of staff claiming that the Applicant had displayed conduct that may be in breach of the code of conduct, and that she had decided to suspend the Applicant from duty on normal remuneration effective from 30 October 2014 under s 189 of the PS Act.  The suspension was to remain in place for three weeks or unless otherwise notified to allow for witness statements and preparation of any findings.  Apparently, the letter was not given to the Applicant until 3 November 2014, so the suspension commenced then.
  1. [15]
    On 23 December 2014, Ms Wright wrote a 19 page letter to the Applicant outlining a number of allegations against the Applicant and inviting her to show cause why disciplinary action should not be taken against her ("the first show cause notice").
  1. [16]
    On 15 January 2015, the Applicant's solicitor wrote two letters to Ms Wright:
  1. (a)
    a letter seeking an extension of time to respond to the first show cause notice; and
  1. (b)
    a letter requesting clarification of the allegations against the Applicant contained in the first show cause notice.
  1. [17]
    On 21 January 2015, Ms Wright wrote a letter to the Applicant's solicitor revoking the first show cause notice and continuing the Applicant's suspension.
  1. [18]
    On 18 February 2015, Ms Wright wrote a 19 page letter to the Applicant outlining a number of allegations against her and inviting the Applicant to show cause why disciplinary action should not be taken against her ("the revised first show cause notice").  In response to the Applicant's request for access to further information and documents, the Respondent granted an extension of time for the Applicant to respond to the revised first show cause notice by 17 April 2015.
  1. [19]
    On 17 April 2015, the Applicant responded to the revised first show cause notice.  The Applicant's response comprised:
  1. (a)
    13 pages of submissions by the Applicant's solicitor; and
  1. (b)
    59 pages of submissions by the Applicant (plus attachments).
  1. [20]
    On 26 June 2015, Ms Wright wrote a letter of 98 pages to the Applicant advising that she had determined that a majority of the allegations against the Applicant was substantiated on the balance of probability, the Applicant was liable for disciplinary action under s 188 of the PS Act, and the proposed penalty that Ms Wright was seriously considering was the termination of the Applicant's employment with the Respondent.  Ms Wright invited the Applicant to respond within 14 days of receipt of this letter as to why her employment should not be terminated ("the second show cause notice").
  1. [21]
    On 7 July 2015, the Applicant's solicitor wrote a letter to Ms Wright requesting an extension of time for the Applicant to respond to the second show cause notice.  On 9 July 2015, Ms Wright wrote a letter to the Applicant's solicitor advising that she had decided to grant an extension of time for the Applicant to respond to the second show cause notice by 10 August 2015.
  1. [22]
    The Applicant wrote a letter of 62 pages (plus attachments) dated 9 August 2015 to the Chairperson.  The letter was lodged by the Applicant's legal representative.  It described the history of the disciplinary process to date and submitted a notification of an employee grievance under clause 3.2 of the Award in relation to the second show cause notice and the manner in which the formal disciplinary process had been conducted ("the employee grievance").  That letter set out the following four counts which were the essence of the grievance:
  1. (a)
    Ms Wright's decision not to follow the Public Service Commission Discipline Guideline 01/13;
  1. (b)
    Ms Wright's decision to deny the Applicant her natural justice rights by not involving the Applicant in the investigation process;
  1. (c)
    Ms Wright's decision to find that a majority of the allegations against the Applicant as contained in the revised first show cause notice to be substantiated on a balance of probabilities; and
  1. (d)
    Ms Wright's decision to seriously consider the termination of the Applicant's employment as the appropriate disciplinary action.

That letter also specified outcomes that the Applicant described as a way to "satisfactorily resolve" her grievance.

  1. [23]
    On 9 August 2015, the Applicant's solicitor wrote a letter to Ms Wright advising her that the Applicant had initiated the employee grievance procedure under clause 3.2 of the Award and bringing her attention to clause 3.2.8 of the Award which states:

"…  [W]hile the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue.  Further, the status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed.  No party shall be prejudiced as to the final settlement by the continuation of work."

  1. [24]
    On 17 August 2015, the Chairperson wrote a letter to the Applicant advising her that the Chairperson had determined not to accept the letter dated 9 August 2015 as an employee grievance under the Award.
  1. [25]
    On 17 August 2015, the Applicant's solicitor filed and served the Application for an Injunction on behalf of the Applicant.
  1. [26]
    On 18 August 2015, Ms Wright wrote a letter to the Applicant providing the Applicant a further opportunity to provide a response to the second show cause notice within seven days of receipt of that letter.
  1. [27]
    On 19 August 2015, the Respondent's solicitor wrote an email to the Applicant's solicitor advising that the Respondent undertakes not to take any action or make any decisions in relation to the Applicant until this matter has been heard.

 Does the Commission have power to grant the injunction sought?

  1. [28]
    Respondent's submissions: The Respondent submits that the Commission lacks jurisdiction to deal with the application for an injunction and that there is nothing for the Commission to restrain pursuant to s 277 of the IR Act because the Applicant had no entitlement to lodge a grievance.  Accordingly, her application for injunctive relief should be dismissed.
  1. [29]
    The Respondent's submission is based on the operation of a directive of the Chief Executive of the Public Service Commission ("the Commission Chief Executive"), Directive 02/14: Appeals ("the Directive"), which was effective from 27 June 2014.  The following clauses of the Directive are relevant to this application:

"1.Purpose

To outline appeal rights provided for under the Public Service Act 2008 (PSA) and other Acts.

…

7.Decisions that can be appealed

  1. 7.1Only decisions listed in section 194 of the PSA can be appealed. 
  1. 7.2For section 194(1)(b) an appeal may be made against a disciplinary finding decision and a decision on disciplinary action.

 …"

  1. [30]
    The Respondent's submission is, in summary, that:
  1. (a)
    Pursuant to s 53(baa) of the PS Act, the Commission Chief Executive may make rulings about the "conditions of employment of public service employees."  Subsection 47(6) provides that rulings include directives.
  1. (b)
    Subsection 47(3) of the PS Act provides that a directive "binds the persons to whom it applies."  The Directive applies to public service employees defined in s 9 of the PS Act (see cl 4 of the Directive).  The Applicant is a public service employee.  Therefore the Directive binds her.
  1. (c)
    By virtue of cl 7.2 of the Directive, "an appeal may be made against a disciplinary finding and a decision on disciplinary action."  Given that the Directive is binding on the Applicant, should she wish to complain about a disciplinary finding and/or any decision on disciplinary action, she is required by operation of s 47(3) of the PS Act to lodge an appeal under the Directive.
  1. (d)
    Where a directive "deals with a matter all or part of which is dealt with under an industrial instrument," the directive prevails over the industrial instrument unless a regulation provides otherwise (see s 52(1) and (2) of the PS Act).  There is no applicable regulation in the present circumstances.
  1. (e)
    The Award is an industrial instrument.
  1. (f)
    As a consequence of the operation of ss 47(3) and 52(1) and (2) of the PS Act, the Directive prevails over clause 3.2 of the Award, such that a public service employee may not make a grievance under the Award about "a disciplinary finding decision and a decision on disciplinary action."
  1. [31]
    The Applicant has purported to make such a grievance.
  1. [32]
    The Respondent submits that, given that the Applicant was not entitled to make a grievance under clause 3.2 of the Award in relation to the disciplinary findings, the Commission lacks jurisdiction to deal with her application for an injunction.  There is, in any event, nothing for the Commission to restrain pursuant to s 277 of the IR Act because the Applicant had no entitlement to lodge a grievance.  Accordingly, her application for injunctive relief should be dismissed.
  1. [33]
    Consideration: The significance of the existence of a directive about disciplinary matters is clear from s 196(a) of the PS Act which states that the persons who may appeal against a decision mentioned in s 194(1)(b) include a public service employee "aggrieved by the decision to discipline the employee if the employee is entitled to appeal under a directive of the commission chief executive."
  1. [34]
    The Respondent's submission proceeds on the basis that, however it is read, cl 7.2 of the Directive can be given full effect and is not inconsistent with the PS Act.  As the Respondent acknowledges, the parties in Ganly v Queensland Audit Office ("Ganly") agreed that the Commission was not required to express a concluded view on that matter in that case.[1]  The matter was not fully argued before the Commission on that occasion.
  1. [35]
    The reasons for decision in that case, however, record that counsel for both parties submitted, in effect, that a public servant could not appeal to an Appeals Officer in relation to a determination that an allegation against that public servant was substantiated on the balance of probabilities (i.e., a disciplinary finding decision).  Rather, they submitted that a public servant could only appeal in relation to the decision to discipline that person, which decision is made at the time when the penalty is imposed.  They relied on s 194(1)(b) of the PS Act which states that an appeal may be made against specified decisions including:

  "a decision under a disciplinary law to discipline-

  1. a person …, including the action taken in disciplining the person."[2]
  1. [36]
    On that occasion, I understood the submission to be that s 194(1)(b) in its terms leads to the result that a person can only appeal against a disciplinary decision which includes the imposition of a penalty.  In other words, a "decision … to discipline" includes the action taken in disciplining the person.  Action taken to determine whether or not the disciplinary action will be taken against an employee (although it may be characterised as part of the system or process to maintain discipline) is not a "decision … to discipline" that person.  Consequently, it is neither the purpose nor the provision of the legislation that each step along the way to the taking of the decision to discipline a public service employee can be the subject of an appeal under the PS Act.[3]
  1. [37]
    The issue needs to be resolved in this case in order to establish whether the Commission has power to grant the injunction.
  1. [38]
    The Respondent submits, and there seems to be no dispute, that the Directive is a "statutory instrument" as defined by s 7 of the Statutory Instruments Act 1992.  A statutory instrument that deals with a subject within the scope of the power provided in the empowering Act may not exceed the prescribed limits within which the delegated legislation must fall.[4]  Section 51 of the PS Act states plainly:

"If a ruling is inconsistent with an Act or subordinate legislation, the Act or subordinate legislation prevails to the extent of the inconsistency."

  1. [39]
    Although the courts have not been reluctant to declare a regulation invalid if it is inconsistent with the Act under which it is made, courts must be convinced that there is an inconsistency before they will be persuaded to act.  The general approach adopted by courts is that every endeavour is to be made to save legislation from invalidity.  One relevant principle of statutory interpretation is that where there are possible competing interpretations which may be placed upon delegated legislation, the construction of it which would be within power should be adopted.[5] 
  1. [40]
    The task of a court in determining the validity of delegated or subordinate legislation has three steps:
  1. (a)
    to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make it;
  1. (b)
    to determine the meaning of the subordinate legislation itself; and
  1. (c)
    to decide whether the subordinate legislation complies with that description.[6]
  1. [41]
    The resolution of the issue in the present case involves considering:
  1. (a)
    the source of the Commission Chief Executive's power to make directions in relation to the disciplining of public service employees;
  1. (b)
    the scope of cl 7.2 of the Directive; and
  1. (c)
    whether cl 7.2 complies with the legislation under which it is made.
  1. [42]
    Source of power to make the Directive:  The parties identify two sections of the PS Act (ss 53 and 214B), each of which is said to be the source of power for making the Directive. 
  1. [43]
    The Respondent relies on s 53(baa), which provides that the Commission Chief Executive "may make a ruling" about specified matters including the "conditions of employment of public service employees."
  1. [44]
    Assuming, for present purposes, that the power under s 53 is sufficiently broad to enable the Commission Chief Executive to make a direction about appeals under the PS Act, the question (considered below) is whether part of the Directive that allows an appeal against a "disciplinary finding decision" is inconsistent with s 194(1)(b)(i).  The issue is not whether s 194(1)(b)(i) is a source of power to make the Directive, but whether it limits the operation of any directive made in relation to decisions to discipline public service employees.
  1. [45]
    The Applicant submits that the power to make a directive of this type is found in s 214B of the PS Act.  That section is located in Chapter 7, Part 1 Appeals and provides:

"Commission chief executive must make a directive for this part

  1. (1)
    The commission chief executive must make a directive for this part.
  1. (2)
    The directive-
  1. (a)
    must make provision for-
  1. (i)
    the decisions, if any, against which an appeal may be made; and
  1. (ii)
    the persons who are entitled to appeal against a decision mentioned in section 194(1); and
  1. (iii)
    the directions, if any, an appeals officer may give under section 208(1)(b); and
  1. (b)
    may, for section 195(5), definition non-appealable appointment, declare an appointment to be an appointment against which an appeal may not be made.
  1. (3)
    However, the directive must not direct, or purport to direct, an appeals officer or another person to do or not do something, or to do or not do something in a particular way, in relation to an appeal under this part."
  1. [46]
    The Applicant, in effect, highlights:
  1. (a)
    the expressions "the decisions … against which an appeal may be made" (s 214B(2)(a)(i)) and "a decision mentioned in section 194(1)" (s 214B(2)(a)(ii)); and
  1. (b)
    the reference in s 194(1)(b)(i) to a "decision under a disciplinary law to discipline … a person …, including the action taken in disciplining the person"

as governing the scope of the power to make directions in relation to appeals under the PS Act.

  1. [47]
    In the absence of s 214B of the PS Act, s 53 might have provided the Commission Chief Executive with sufficient power to make the Directive.  In those circumstances, there would still have been a question whether the exercise of that power was constrained by the terms of s 194.  It is not necessary to answer that question in this case.
  1. [48]
    In my view, the source of power to make the Directive is s 214B.  I have reached that conclusion because:
  1. (a)
    the power is set out in the Part of the PS Act dealing with Appeals; and
  1. (b)
    the power is specific and prescriptive in its terms (in particular, that a directive made under that section must make provision for the persons who are entitled to appeal against "a decision mentioned in section 194(1)").
  1. [49]
    Section 214B does not in its terms limit what such a directive might include, but prescribes what it must and may include.  However, it is unlikely that, in the context of the PS Act, another section would (either apart from or in conjunction with s 214B) provide the source of power to make the Directive. 
  1. [50]
    The scope of clause 7.2 of the Directive and the legislation under which it is made: Although clause 7.1 of the Directive states "Only decisions listed in section 194 of the PSA can be appealed," clause 7.2 of the Directive states "For section 194(1)(b) an appeal may be made against a disciplinary finding decision and a decision on disciplinary action."
  1. [51]
    As noted earlier, s 194(1)(b)(i) relevantly provides that an appeal may be made against specified decisions including "a decision under a disciplinary law to discipline … a person …, including the action taken in disciplining the person."  It is clear from Schedule 4 to the PS Act that the PS Act is a disciplinary law. 
  1. [52]
    The Respondent submits that the Directive expands rights under the PS Act and that the Commission Chief Executive can do that under s 53.  Section 194 of the PS Act is not a code and hence is not the last word on the matter.  The Directive is supplementing what is provided in s 194.  Hence, the Respondent submits:
  1. (a)
    there is no inconsistency between clause 7.2 and s 194(1)(b)(i) of the PS Act;
  1. (b)
    there might be different views as to what s 194(1)(b)(i) means;
  1. (c)
    if there appears to be some inconsistency, clause 7.2 should be read consistently with that section; and
  1. (d)
    in any case, the Directive binds the Applicant and prevails over an "industrial instrument" including the Award;[7]
  1. (e)
    therefore the Commission does not have jurisdiction to deal with the application for an injunction.
  1. [53]
    As I have decided that the source of power to make the Directive is s 214B and not s 53, it is necessary to consider whether cl 7.2 is consistent with s 214B.
  1. [54]
    The Applicant submits that the only "decision" to which s 194(1)(b)(i) applies is a decision to discipline the person, which decision includes the relevant disciplinary action (other than by termination of employment).  Before that decision is taken and communicated to the relevant public service employee, there is no disciplinary "decision" in respect of which an appeal may be made under s 194(1)(b)(i).  In particular, a disciplinary finding decision which precedes the decision to discipline coupled with the disciplinary action taken is not such a "decision."  Consequently, a disciplinary finding decision is not one of the decisions listed in s 194 (to which clause 7.1 refers) and hence cannot be covered validly by clause 7.2.  Furthermore, when clause 7.1 is read with s 214B, that clause is not about expanding appeals under the PS Act.  If clause 7.2 purports to enlarge the grounds of appeal to include a disciplinary finding decision as one which can be appealed separately under the Directive then clause 7.2 is invalid, at least to that extent. 
  1. [55]
    To illustrate that submission, the Applicant points to the letter from Ms Wright dated 26 June 2015 which stated that, in relation to those allegations that were substantiated, Ms Wright found the Applicant "liable for disciplinary action pursuant to s 188" of the PS Act.  No disciplinary action was taken at that stage.  Indeed it could not have been taken because, later in that letter, Ms Wright stated that "no final determination of the disciplinary action to be imposed has been made or will be made," until the Applicant had the opportunity to respond and show cause why the disciplinary action should not be imposed.  It was in relation to the decision or conclusion outlined in that letter that the grievance was lodged.
  1. [56]
    In support of her submissions on the interpretation of s 194(1)(b)(i), the Applicant refers to a decision of de Jersey CJ (as his Excellency then was) in Freier v Jordan and the State of Queensland[8]  ("Freier").  A determination had been made that complaints about the behaviour of a public servant, Mr Freier, had been established.  He appealed to the Public Service Commissioner against that determination.  However, because the decision maker had not got to the point of determining to discipline Mr Freier, s 94(1)(b) of the Public Service Act 1996 did not apply, so that the appeal was incompetent.  The (subsequently repealed) s 94(1)(b) provided:

"(1)  An appeal may be made to the Commissioner against the following decisions-

  1. (a)
    …
  1. (b)
    a decision under a disciplinary law to discipline a person (other than by termination of employment) including the action taken in disciplining the person;

  …"

The issue before the Supreme Court was whether the decision about the complaints fell within the purview of the Judicial Review Act 1991.  In holding that it did, de Jersey CJ described that decision as "the precursor to further decision making, in relation to discipline."[9]  That assessment was reinforced later in the reasons when his Honour distinguished the prospect of an appeal should Mr Freier be disciplined with the "current determination."[10]

  1. [57]
    As the Applicant acknowledges, the Supreme Court in that case was not considering s 194 of the PS Act.  However, the language of the repealed s 94(1)(b) of the 1996 Act is in almost identical terms to that of the current s 194(1)(b)(i) of the PS Act.  The Applicant refers to, and relies on, the general proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them.[11]  
  1. [58]
    The Respondent submits that the decision in Freier is irrelevant to the present application because there was no reference to a directive in that case.  Thus the decision cannot assist in the resolution of this matter.
  1. [59]
    In my view, however, the statements made by de Jersey CJ referred to above assist in clarifying the nature of the decision to which s 194(1)(b)(i) of the PS Act refers.
  1. [60]
    Conclusion: Having considered the submission, I have concluded that:
  1. (a)
    the only "decision" to which s 194(1)(b)(i) applies is a decision to discipline the person which decision includes the relevant disciplinary action (other than by termination of employment);
  1. (b)
    cl 7.1 of the Directive expressly refers "only" to decisions listed in s 194 of the PS Act;
  1. (c)
    cl 7.2 of the Directive might be read as referring to two separate types of decision (a disciplinary finding decision and a decision on disciplinary action), in which case it might be inconsistent with s 194(1)(b)(i) and hence subject to s 51;
  1. (d)
    it is possible to read cl 7.2 as referring to two components of the one disciplinary decision (namely a decision that supports a decision to discipline a public service employee and a decision to take disciplinary action in relation to that employee);
  1. (e)
    it is unlikely that the requirement in s 214B that a directive must make provision for "the decisions … against which an appeal may be made" would be construed to give the Commission Chief Executive power to expand the categories of decisions beyond those specified in the PS Act;
  1. (f)
    for reasons of harmony between cl 7.1 and cl 7.2, and consistency between cl 7.2 and s 194(1)(b) of the PS Act, cl 7.2 should be read in the latter way; and
  1. (g)
    as a consequence, cl 7.2 does not allow an appeal against a disciplinary finding decision alone before a disciplinary decision has also been made.
  1. [61]
    It is necessary to consider the implications of that decision for the operation of s 52 of the PS Act in the present circumstances.
  1. [62]
    The Respondent submits that even if cl 7.2 of the Directive is read down, the Directive still prevails over the Award (at least to the extent that both documents deal with matters of appeals on disciplinary matters) and is binding on the Applicant.  Hence, if the Applicant wishes to complain about those decisions she must do so pursuant to the Directive.
  1. [63]
    The Applicant also submits that:
  1. (a)
    s 52 of the PS Act applies if a directive deals with "a matter" all or part of which is dealt with under an industrial instrument, such as the Award (s 52(1));
  1. (b)
    the Directive deals with appeals;
  1. (c)
    the grievance in this case arose before an appeal was lodged and hence before an event to which the Directive applies had occurred (or could occur); and
  1. (d)
    therefore the Directive does not prevail over the Award (s 52(2)) because the Directive and the Award deal with different matters. 

For completeness, counsel for the Applicant pointed out that the issue in this case is not whether a grievance can be brought against a decision to discipline a person.             

  1. [64]
    I agree with the Applicant's submission.  The conclusion in [60] does not detract from the effect of s 52(2) of the PS Act.  The Directive prevails over the Award.  However, as there is no decision in relation to the Applicant on which cl 7.2 of the Directive (read in the way set out above) can operate, the Directive did not prevent the employee grievance procedure being enlivened by the Applicant in her letter to the Chairperson dated 9 August 2015.
  1. [65]
    In light of that conclusion, it is necessary to consider whether the jurisdiction of the Commission to grant the injunction sought by the Applicant has been attracted.

Jurisdiction to grant injunction

  1. [66]
    Applicant's submission: The Applicant relies on the decision in Ganly, and submits in relation to the issues listed in [8] above, that:
  1. (a)
    the Award is an industrial instrument that governs the employment of the Applicant, and, because it is clear from the Chairperson' letter dated 17 August 2015 that the Respondent does not regard itself as required to comply with the grievance procedure set out in clause 3.2 of the Award, there appears to be a failure to comply with an industrial instrument;
  1. (b)
    the disagreement between the Applicant and the Respondent as to the applicability of the matters set out in the Applicant's grievance and as to whether the grievance procedure applies constitutes an "industrial dispute" (as defined in Schedule 5 of the IR Act) and hence the Applicant is a party to an industrial dispute; and
  1. (c)
    an "industrial matter" can arise with respect to the rights of an employer to pursue disciplinary action against an employee and, in the present case, it may be said that the "industrial matter" is also the rejection by the Respondent of the grievance of the Applicant which affects the rights of the Applicant as an employee. 
  1. [67]
    The Respondent did not seek to reopen the matters argued in Ganly, but relied on its arguments set out above (and the submission about whether the Commission should exercise its discretion not to grant an injunction sought, considered below).
  1. [68]
    Consideration and conclusion: Having regard to the evidence summarised above and having reconsidered the reasons for decision in Ganly, I conclude that:
  1. (a)
    the Award is an industrial instrument that governs the employment of the Applicant;
  1. (b)
    by letter dated 9 August 2015, the Applicant gave notice to the Chairperson of a grievance under cl 3.2 of the Award, which notice was also communicated to Ms Wright by letter dated 9 August 2015 from the Applicant's legal representative;
  1. (c)
    it is clear from the Chairperson's letter dated 17 August 2015 refusing to accept the Applicant's letter as an employee grievance under the Award, and stating that there was no requirement to maintain the status quo, that the Respondent does not regard itself as required to comply with the grievance procedure set out in cl 3.2 of the Award in relation to the Applicant's grievance;
  1. (d)
    consequently, the Respondent has failed and continues to fail to comply with that part of the Award;
  1. (e)
    at the date when the application for an injunction was filed and subsequently, the Applicant had a dispute with the Respondent about whether the Respondent should deal with her grievance made under cl 3.2 of the Award before taking any further disciplinary action under the PS Act;
  1. (f)
    the dispute between the Applicant and the Respondent relates to the right of the Respondent as an employer to take disciplinary action against the Applicant an employee.  On one hand, the Applicant disputes the Respondent's capacity to exercise its rights under the PS Act in relation to her at this time because she has invoked the grievance procedure under the Award.  On the other hand, the Respondent contends that the Applicant's complaint about the disciplinary process under the PS Act cannot be the subject of an employee grievance under clause 3.2 of the Award.  Expressed in those terms, the dispute between the parties can be characterised as being about an "industrial matter," and hence within the scope of s 7(1)(b) of the IR Act;
  1. (g)
    consequently, the Applicant is a party to an industrial dispute;
  1. (h)
    if the Respondent were to proceed to take disciplinary action in relation to the Applicant, as foreshadowed in Ms Wright's letter dated 18 August 2015, before the grievance procedure under cl 3.2 of the Award is complete (or the grievance is withdrawn), that would contravene the status quo provisions in cl 3.2.8 of the Award; and
  1. (i)
    given the Respondent's determination not to accept the Applicant's letter dated 9 August 2015 as an employee grievance, and the assertion that there is no requirement to maintain the status quo, and that it intends to take disciplinary action against the Applicant, there is a basis for finding that there is a threatened contravention of the Award.
  1. [69]
    It flows from those findings and conclusions that the jurisdiction of the Commission to deal with the application for an injunction under s 277 of the IR Act is attracted.

 Should the Commission grant the injunction?

  1. [70]
    As a consequence of the decision in relation to the Commission's jurisdiction, it is necessary to decide whether this Commission should exercise its discretionary power to grant the injunction sought.
  1. [71]
    Respondent's submissions: The Respondent submits that, even if the Commission has jurisdiction to entertain the application, injunctive relief as a matter of discretion should not be granted because of the significant delay by the Applicant in lodging her "grievance."  In the Respondent's submission, the fact that the Applicant "has not moved with any sense of urgency strongly tells against the making of the order she now seeks."  Accordingly, the Commission should refuse to grant the injunction and should dismiss the application.
  1. [72]
    The Respondent submits that, if the Applicant was entitled to make a grievance, she ought to have done so promptly.  Clause 3.2.1 of the Award states in part "The objectives of the procedure are to promote the prompt resolution of disputes…"  Further, cl 3.2.6 provides for the entire grievance procedure to be completed within 28 days of the employee raising his or her grievance.
  1. [73]
    The Respondent notes that the Applicant has been suspended on full pay since 3 November 2014.  Counts 1 and 2 in her "grievance" relate to alleged conduct in or around late 2014.  Materials pertaining to the issues outlined in those counts have been in the Applicant's possession since December 2014, some nine months before the Applicant lodged her grievance.  Further:
  1. (a)
    counts 2 and 3 of the Applicant's grievance result from matters contained in the second show cause notice which was issued to the Applicant some six weeks before she lodged her grievance; and
  1. (b)
    on 7 July 2015, the Applicant sought an extension of time in which to respond to the proposed shows cause notice and the proposed penalty and, although her request was granted and she was required to respond to the second show cause notice by 10 August 2015, the Applicant did not respond but lodged her grievance.
  1. [74]
    The Respondent also seeks to rebut any suggestion that the delay in lodging a grievance was because of the volume of documentation and the complexity of the grievance process.  It points to the correspondence dated 7 July 2015 in which the Applicant sought an extension of time until 10 August 2015 in which to respond to the second show cause letter.  There is no suggestion in that correspondence that the Applicant was taking time to prepare a detailed notice of grievance.  Had that been the case, the Applicant could have sought an extension of time on the basis that she was preparing a grievance.
  1. [75]
    Applicant's submissions: The Applicant submits, in summary, that:
  1. (a)
    the alleged delay is not delay in relation to the application for an injunction;
  1. (b)
    the alleged delay relates to the operation of the grievance procedure;
  1. (c)
    any alleged delay on her part in relation to the grievance procedure must be considered in light of the Respondent's delays at various stages in the disciplinary process.
  1. [76]
    In relation to the alleged delay in providing the notice of grievance, the Applicant submits that:
  1. (a)
    cl 3.2.1 of the Award refers to the "objectives" of the employee grievance procedures to "promote the prompt resolution of grievances," which objectives are aspirational;
  1. (b)
    the promptness referred to in cl 3.2.1 is to the resolution of grievances not to the bringing of them;
  1. (c)
    although clause 3.2.6 envisages the stages of the grievance procedure being completed within specified timeframes, over a period not exceeding 28 days, the procedure is to be completed in accordance with those timeframes "unless the parties agree otherwise" and hence it is open to the parties to vary that period;
  1. (d)
    the grievance procedure in the Award does not give the employer power to refuse to deal with an employee because of a delay in bringing a grievance;
  1. (e)
    the introduction of the concept of delay to this clause in the Award would admit problems (e.g., if an employee with a grievance went on long service leave before giving notice of the grievance) and would work against employees who were stoic or who were embarrassed about raising their concerns;
  1. (f)
    however, delay could be relevant in some circumstances (e.g. as evidence of abandonment, or where the person alleged to be aggrieved acted inconsistently with how they acted previously giving rise to a suggestion that what is alleged is a device not a grievance); but
  1. (g)
    in the present case, there is a genuine dispute and concern as to what has happened to the Applicant; and
  1. (h)
    given the complexity of the matters raised in the disciplinary proceedings, and the extensive documentation involved, the time taken to give notice of the grievance can be explained by the need to formulate the grievance carefully and in detail.
  1. [77]
    In relation to the time taken by the Respondent to deal with the disciplinary matters, the Applicant refers to:
  1. (a)
    a timeline of the events referred to earlier in the Background part of these reasons for decision; and
  1. (b)
    the fact that some of the allegations made against the Applicant were made well after the events (e.g. 22 months after the event in allegation 2(a) and 18 months after the event in allegation 2(c)).
  1. [78]
    The Applicant refers to the final paragraph of Ms Wright's letter to her dated 18 August 2015, which stated that if the Applicant did not respond within seven days from the date of receipt of the letter (or if her response was received later than that date), Ms Wright would make a decision on the proposed penalty on the material currently before her.  The Applicant submits that there is no suggestion that the Applicant is being disingenuous in relations to the grievance.  However, even if the Applicant decided to lodge a grievance during the period allowed to respond to the show cause letter, that does not go to the validity of the grievance.
  1. [79]
    Consideration and conclusion: Although submissions ranged far and wide as to the length and reasons for the alleged delays of both parties, the aspects relevant to this application for an injunction are confined to the period during which the Applicant had reason to consider whether to invoke the grievance procedures under the Award in relation to the disciplinary process. 
  1. [80]
    The basis for her grievance in relation to the disciplinary process arose after the Applicant was made aware that Ms Wright had concluded that a majority (23) of the 30 allegations has been substantiated on the balance of probabilities.  It was when she had received the letter dated 26 June 2015 that the Applicant needed to consider her procedural options.  At that stage, she had to decide what to do in response to a document of 98 pages.  The immediate challenge was to reply in writing, as requested by Ms Wright, within 14 days of receipt of that letter or such additional period as could be negotiated. 
  1. [81]
    I note that the decision in Ganly was released on 2 June 2015, well after the Applicant responded to the revised first show cause notice and before Ms Wright's letter of 26 June 2015.  The solicitors for the Applicant also represented the successful applicant for an injunction in Ganly.  It appears from the letter to the Chairperson that the result in that case and the supporting reasons had a bearing on the advice given to, and the approach taken by, the Applicant in relation to her notice of grievance.
  1. [82]
    Having regard to the number of allegations against the Applicant that were found to be substantiated, the volume of material in relation to the allegations set out in the letter from Ms Wright dated 26 June 2015, and the time available to obtain considered legal  advice in relation to the procedural options, I am not satisfied that the time taken by the Applicant to send her notice of grievance was a delay sufficient to prevent the exercise of a discretion to grant the injunction that she seeks.
  1. [83]
    It follows that the grievance process invoked by the Applicant in her letter of 9 August 2015 should run its course.  That may involve some adaptation of a stage or stages set out in cl 3.2 of the Award.  The process should be undertaken and completed as promptly as practicable having regard to the number and range of issues involved.  Given the extensive correspondence between the parties to date, and the consequent articulation of the issues and each party's position in relation to those issues, neither party should attempt unreasonably to delay the process.

Conclusion and Orders

  1. [84]
    For the reasons set out above, I have concluded that the Commission has power to grant an injunction of the type sought by the Applicant and that it is appropriate to exercise the discretion in s 277 of the IR Act to grant an injunction.
  1. [85]
    Together with her written outline of submissions, the Applicant provided the Commission with the following draft minutes of order sought:

"The Respondent is hereby restrained from taking any further steps under Chapter 6, Part 2 of the Public Service Act 2008 with respect to the action against the Applicant initiated by it through the letter of 18 February 2015 under the hand of Janette Wright, CEO and State Librarian, until the grievance raised by the Applicant in her letter of 9 August 2015 pursuant to clause 3.2 of the Queensland Public Service Award - State 2012 is finalised."

  1. [86]
    The draft order is in substantially the same terms as the order made in Ganly v Queensland Audit Office (No 2).[12]  That order was in the terms of draft minutes of orders provided by consent of the parties in response to a direction of the Commission to file draft minutes of orders to give effect to the decision in Ganly.
  1. [87]
    In the present case, I am satisfied that the draft minutes of order give effect to the decision set out above.
  1. [88]
    Order accordingly.

Footnotes

[1] See Ganly v Queensland Audit Office [2015] QIRC 108, [136].

[2] See Ganly v Queensland Audit Office [2015] QIRC 108, [133].

[3] See Ganly v Queensland Audit Office [2015] QIRC 108, [134].

[4] See Young v Tockassie (1905) 2 CLR 470, 477 (Griffith CJ); Queensland v Central Queensland Land Council Aboriginal Corporation  (2002) 125 FCR 89, 105; 195 ALR 106, 119;  DC Pearce and S Argument, Delegated legislation in Australia (LexisNexis Butterworths, 4th ed, 2012) [12.8].

[5] See DC Pearce and S Argument, Delegated legislation in Australia (LexisNexis Butterworths, 4th ed, 2012) [30.5] and cases cited.

[6] McEldowney v Forde [1969] 2 All ER 1039, 1068 (Lord Diplock); see DC Pearce and S Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th ed, 2012) [12.4] and cases cited.

[7] See the definition of "industrial instrument" in Schedule 4 of the PS Act which includes "an award."

[8] Freier v Jordan and the State of Queensland [2002] QSC 385.

[9] Freier v Jordan and the State of Queensland [2002] QSC 385, [10].

[10] Freier v Jordan and the State of Queensland [2002] QSC 385, [14].

[11] See Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 97, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[12] Ganly v Queensland Audit Office (No 2) [2015] QIRC 114.

Close

Editorial Notes

  • Published Case Name:

    Elford v State of Queensland (State Library of Queensland)

  • Shortened Case Name:

    Elford v State of Queensland (State Library of Queensland)

  • MNC:

    [2015] QIRC 176

  • Court:

    QIRC

  • Judge(s):

    Member Neate IC

  • Date:

    14 Oct 2015

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
Freier v Jordan [2002] QSC 385
4 citations
Jump To
Cite 1 - [2002] QSC 385
Cite 2 - [2002] QSC 385
Cite 3 - [2002] QSC 385
Cite 4 - [2002] QSC 385
Ganly v Queensland Audit Office [2015] QIRC 108
4 citations
Jump To
Cite 1 - [2015] QIRC 108
Cite 2 - [2015] QIRC 108
Cite 3 - [2015] QIRC 108
Cite 4 - [2015] QIRC 108
Ganly v Queensland Audit Office (No 2) [2015] QIRC 114
2 citations
Jump To
Cite 1 - [2015] QIRC 114
Cite 2 - [2015] QIRC 114
McEldowney v Forde [1969] 2 All ER 1039
2 citations
Jump To
Cite 1 - [1969] 2 All ER 1039
Cite 2 - [1969] 2 All ER 1039
Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89
2 citations
Jump To
Cite 1 - (2002) 125 FCR 89
Cite 2 - (2002) 125 FCR 89
Queensland v Central Queensland Land Council Aboriginal Corporation (1994) 181 CLR 97
2 citations
Jump To
Cite 1 - (1994) 181 CLR 97
Cite 2 - (1994) 181 CLR 97
Young and others v Tockassie (1905) 2 CLR 470
2 citations
Jump To
Cite 1 - (1905) 2 CLR 470
Cite 2 - (1905) 2 CLR 470

Cases Citing

Case NameFull CitationFrequency
Darlington v State of Queensland (Queensland Police Service) [2016] QIRC 723 citations
Navathe v State of Queensland (Queensland Health) [2024] QIRC 2473 citations
1

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