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  4. Elmes v Carpentaria Shire Council - [2016] QIRC 118

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Elmes v Carpentaria Shire Council[2016] QIRC 118

Elmes v Carpentaria Shire Council[2016] QIRC 118

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Elmes v Carpentaria Shire Council [2016] QIRC 118

PARTIES: 

Elmes, Neville James

(Applicant)

v

Carpentaria Shire Council

(Respondent)

CASE NO:

TD/2015/96

PROCEEDING:

Application for reinstatement

DELIVERED ON:

11 November 2016

HEARING DATES:

20, 21 and 22 June 2016

MEMBER:

Deputy President O'Connor

ORDERS:

  1. (i)
    The application is granted;
  1. (ii)
    Pursuant to s 274A of the Industrial Relations Act 1999, I declare that the purported termination of the applicant on 19 August 2015 was invalid;
  1. (iii)
    That the applicant be reinstated to his former position with the respondent;
  1. (iv)
    The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and
  1. (v)
    The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – UNFAIR DISMISSAL – HARSH, UNJUST OR UNREASONABLE – APPLICATION FOR DECLARATION THAT DISMISSAL WAS INVALID – Whether the failure to comply with ss 259 and 260 of the Local Government Act 2009 and ss 279 and 283 of the Local Government Regulation 2012 rendered the dismissal invalid – Whether the dismissal could also be considered harsh, unjust or unreasonable.

CASES:

Industrial Relations Act 1999 (Qld), ss 73, 74, 77, 78, 79, 274A

Local Government Act 2009 (Qld) ss 197, 259, 260

Residential Tenancies and Accommodation Act 2008

Workers' Compensation and Rehabilitation Act 2003 s 232B

Workplace Relations Act 1996 (Cth) (repealed)

Local Government Regulations 2012 (Qld) ss 278, 279, 280, 283, 305.

Promnitz v Gympie Regional Council [2015] ICQ 011

R v Saffron (1998) 17 NSWLR 395

Dare v Pullman (1982) 148 CLR 658

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

J Boag and Son Brewing Pty Ltd v Allen John Button (2010) 195 IR 292

Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218

CSR Viridian Ltd v Claveria (2008) 171 FCR 554

Toganivalu v Brown & Department of Corrective Services [2006] QADT 13

Qantas Airways Limited v Christie (1998) 193 CLR 280

X v Commonwealth [1999] 200 CLR 177

Wadey v YMCA Canberra [1996] IRCA 568

Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 411

APPEARANCES:

Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320

Liddle v Lembke (1994) 127 ALR 342

Ms D Callaghan of Counsel for the applicant, instructed by Cairns Community Legal Centre.

Ms T Fantin of Counsel for the respondent, instructed by Preston Law.

The application

  1. [1]
    On 26 August 2015 an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the 'IR Act') was filed by Neville James Elmes (the 'applicant') seeking the following orders:

"(A) Reinstatement in his former position (or nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 19/08/2015 and the date of reinstatement; or

  1. (B)
    Re-employment in another position that the employer has available and that the Commission considers suitable.
  1. (C)
    However, if the Commission considers re-instatement or re-employment would be impractical, the Applicant seeks that the Commission make an order that the employer pay the employee an amount of compensation the Commission considers appropriate.
  1. (D)
    Other orders sought."
  1. [2]
    At the first day of hearing, leave was granted to amend the orders sought to include an order for a declaration in the following terms:

 "(A) A declaration that the dismissal was unfair in that it was harsh, unjust or unreasonable and/or for an invalid reason; …"

  1. [3]
    Leave was also granted to amend Schedule 2 Form 12 to insert the following paragraphs:

"6A. The termination was for an invalid reason pursuant to s. 73(1) of the Industrial Relations Act 1999 because it was taken on the basis of a disciplinary action in circumstances where there was no valid basis for disciplinary action pursuant to s. 197 of the Local Government Act 2009 and s. 279 of the Local Government Regulations 2012.

  1. The termination was for an invalid reason pursuant to s. 73(2)(e) of the Industrial Relations Act 1999 because the applicant's decision to oppose the respondent's application to leave his Council premises before QCAT."
  1. [4]
    Paragraph 12 of the application was also amended as follows:

"12. The termination of my employment is for an invalid reason - discrimination on the grounds of impairment (s. 73(2)(m) of the Industrial Relations Act 1999)."

  1. [5]
    In short, the applicant seeks a declaration and orders pursuant to s 274A of the IR Act.  In particular, a declaration stating the termination of the applicant's employment was invalid because of the failure to comply with the provisions of the Local Government Act 2009 (the 'LG Act'). 
  1. [6]
    The basis of the amendment was the Council had failed to comply with the requirements of s 259 and s 260 of the LG Act and s 279 and s 283 of the Local Government Regulation 2012 (the 'LG Regulation'). 

Background

  1. [7]
    The applicant commenced employment as a Road and Construction Foreman with the Carpentaria Shire Council ('the Council') on 2 November 2011.
  1. [8]
    The applicant's contract of employment stipulated he would be provided with a two-bedroom dwelling at a subsidised rate of $90 per week.  On 28 October 2011, the applicant signed a tenancy agreement for a Council owned property at 2/41 Sutherland Street for a term described as " … as per contract of employment".
  1. [9]
    On 22 May 2014, the applicant was returning to Normanton after completing a ten-day shift.  Around 9.30 am he noticed a tree stump and root on the gravel road on which a grader was operating.  While attempting to remove the tree stump, the applicant fell heavily, injuring his right shoulder.
  1. [10]
    Between May and August 2014, the applicant sought medical treatment from Dr Shokry, a general practitioner.  He underwent ultra-sound to his right shoulder and received intra-articular injections to that shoulder.  The applicant took both paid and unpaid leave during the period with the aim of resting his shoulder.
  1. [11]
    On 19 August 2014, Dr Shokry issued the applicant with a workers compensation medical certificate stating that he was unfit for work from 16 June to 5 August 2014.  He was certified fit to return to work as and from 6 August 2014.
  1. [12]
    On 20 August 2014, the applicant made an application for workers' compensation with Local Government Workcare ('LGW'). 
  1. [13]
    On 3 September 2014, a meeting was held between the Chief Executive (Mr Bob Owen), Human Resources Manager (Ms Lisa Ruyg), Works Manager (Mr Jack Parry), Director of Engineering (Mr John Teague) and Workplace Health and Safety Advisor (Mr Peter Leaver).  The purpose of the meeting was to discuss a Suitable Duties Program ('SDP') for the applicant.  Mr Leavers said in evidence that he was advised by management that the applicant's injury created too much of a liability for Council in having him in a construction workplace.  As a consequence of that advice, and an alleged reluctance by the applicant to participate, Mr Leavers said that he abandoned any efforts to formulate a SDP for the applicant.
  1. [14]
    The applicant attended on Dr Morrey, an orthopaedic surgeon, on 3 September 2014.  Dr Morrey recommended that the applicant undergo arthroscopic surgery. 
  1. [15]
    On 19 May 2015 the applicant was given a Notice to Leave under the Residential Tenancies and Accommodation Act 2008.  He was required to vacate the residential premises by 22 June 2015.
  1. [16]
    On 3 August 2015 the Council made an application in Queensland Civil and Administrative Tribunal ('QCAT') seeking orders to have the applicant removed from his tenancy.  The QCAT application was adjourned on 10 August 2015.
  1. [17]
    On 6 August 2015 the applicant was presented with a Show Cause Notice purportedly issued under the LG Act and in accordance with the LG Regulation.
  1. [18]
    On 19 August 2015 the applicant was dismissed on the grounds that he was "Not fit for employment in a position because of injury".
  1. [19]
    It is not in dispute that at the time of the applicant's dismissal he was a "local government employee" employed under the LG Act and the Carpentaria Shire Council - Certified Agreement 2011.

Statutory Provisions

  1. [20]
    The Chief Executive Officer (CEO) is authorised to take disciplinary action (including termination) against the applicant (a local government employee) in accordance with the power contained in s 197 of the LG Act and the provisions of Division 1 of the Part 3, Chapter 8 of the LG Regulation.
  1. [21]
    That section provides as follows:

  "197 Disciplinary action against local government employees

  1. (1)
    The chief executive officer may take disciplinary action against a local government employee.
  1. (2)
    A regulation may prescribe -
  1. (a)
    when disciplinary action may be taken against a local government employee; and
  1. (b)
    the types of disciplinary action that may be taken against a local government employee."
  1. [22]
    Division 1 of Part 3 of Chapter 8 of the LG Regulation relevantly provides:

"278 What div 1 is about

This division prescribes, for section 197(2) of the Act, when the chief executive officer may take, and the types of, disciplinary action.

279 When disciplinary action may be taken

The chief executive officer may take disciplinary action against a local government employee if the chief executive officer is satisfied the employee has -

  1. (a)
    failed to perform their responsibilities under the Act; or
  1. (b)
    failed to perform a responsibility under the Act in accordance with the local government principles; or
  1. (c)
    taken action under the Act in a way that is not consistent with the local government principles.

280 Types of disciplinary action

  1. (1)
    The disciplinary action taken by the chief executive officer against a local government employee may be 1 or more of the following -
  1. (a)
    dismissal;

…

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee -
  1. (a)
    written notice of the following -
  1. (i)
    the disciplinary action to be taken;
  1. (ii)
    the grounds on which the disciplinary action is taken;
  1. (iii)
    the particulars of conduct claimed to support the grounds; and

(b)  a reasonable opportunity to respond to the information contained in the written notice.

  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee."
  1. [23]
    Section 73(2)(e) of the IR Act provides:

"73 When is a dismissal unfair

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

…

  1. (e)
    filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities;

…

(m) discrimination.

  1. [24]
    Section 77 of the IR Act provides that the Commission must consider certain matters in deciding on an application such as this:

"77  Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to -
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance -
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  1. (ii)
    whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant."

Was the termination invalid?

  1. [25]
    The show cause notice of 6 August 2015 stated:

"This Show Cause Notice is given to you pursuant to section 283 of the Local Government Regulation 2012 to afford you natural justice prior to the taking of any disciplinary action, including dismissal."

  1. [26]
    The authorising legislation was said to be the LG Act and the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act').
  1. [27]
    The show cause notice stated that the grounds on which disciplinary action was being taken was "Not fit for employment in a position because of injury".
  1. [28]
    The particulars of conduct to support the grounds upon which disciplinary action is proposed to be taken were stated as follows:

"It is lawful to dismiss an injured worker following an absence of twelve months or more from the workplace.

Information provide to Council indicates there is no definitive time when you will be fit to return to work, therefore the termination of your employment is being considered."

  1. [29]
    The LG Act authorises the Chief Executive to take disciplinary action (including termination) against a local government employee in accordance with the power contained in s 197 of the LG Act and the provisions of Division 1 of the Part 3, Chapter 8 of the LG Regulation.  The regulations prescribe, for section 197(2) of the Act, when the Chief Executive may take, and the types of, disciplinary action he may take.
  1. [30]
    The applicant submitted that the failure of the Council to comply with ss 279 and 283 of the LG Regulation renders any purported termination of the applicant invalid.
  1. [31]
    It was the contention of the respondent that "…despite the reference to s 197 LGA in our show cause notice, it was clearly not a dismissal pursuant to s 197 LGA or s 279 LG Regulation.  The reference in the show cause notice was misconceived because the termination did not relate to a failure to perform responsibilities or to take actions under the LG Act.  It was simply a dismissal for lack of capacity due to unfitness for work due to unfitness for work due to injury."
  1. [32]
    Mr Owen accepted in cross-examination that the issuing of the Show Cause Notice under the LG Act was a mistake.  He said:

Okay.  And when you look at the document it says the authorising power for the disciplinary action was section 197 of the Local Government Act?   Yes, and I say that’s clearly a mistake and an error based on a template drafted by others.

So the taking of disciplinary action against Mr Elmes was a mistake, wasn’t it?   Certainly the – no, not the taking of action, and if you use the strict terminology of disciplinary under the Local Government Act, that was clearly incorrect.  I have no dispute about that at all.  If you use disciplinary not as a term of art but as a common term, obviously termination is a flow-on from that.

I’ll put it to you that this show cause notice was given to Mr Elmes in relation to a disciplinary process under the Local Government Act and that was misconceived, wasn’t it?   No.  I disagree with you.  I say, and I’ll say again, that the reference to that section of the Local Government Act is a clear error.  There is no suggestion from me or anyone else in council that Mr Elmes undertook any sort of misconduct at all.

Okay?   We did not rely on that.  We relied on his fitness and capacity to perform his job.

But this document that you’ve provided to him repeatedly refers to disciplinary action, doesn’t it?   As a template and most of the action that we instigate at council results under the Local Government Act, and unfortunately not enough oversight was given to this document before it went out.[1]

  1. [33]
    The letter from the Cairns Community Legal Centre ('the Cairns CLC') dated 13 August 2015 brought to the attention of Mr Owen the show cause process was misconceived.  However, notwithstanding that clear advice, Mr Owen proceeded to terminate the applicant's employment.
  1. [34]
    It is an extraordinary situation that having been made aware of an error in the show cause process that Mr Owen nevertheless proceeded with the termination.
  1. [35]
    The termination letter of 19 August 2015 repeats the error when it states:

"In order for Council to meet its obligations under the Local Government Act 2009 and to afford you natural justice, you were issued with a Show Cause Notice."

  1. [36]
    In evidence Mr Owen said:

HIS HONOUR:   Mr Owen, I think you mentioned before, and correct me if I am wrong, but you mentioned before in your evidence that when you received the response to the show cause notice that at that stage you’d formed a view that it was the – an incorrect approach in bringing a written notice under 197 I think you said.  Did you contemplate at that stage whether you would start the whole process again because it had been brought to your attention?  You were of that view yourself that there was an incorrect approach to the show cause.  Did you think about?---No, I didn’t      

       --- redoing the whole process again?---No, I didn’t.

---to ensure that it was done accurately?  I didn’t, Deputy President, simply because I was relying on my own knowledge that we weren’t pursuing a misconduct matter.

Yes, and you thought that was sufficient as a show cause to the matters?   I did, yes.[2]

  1. [37]
    The file note of Ms Ruyg[3] suggests to me that she was under the belief that the applicant was being disciplined.  The file note identifies the relevant regulations under the LG Regulation but wrongly attributes them to the IR Act. Ms Ruyg's note identifies "disciplinary proceedings" and "need to follow show cause".  The file note goes on to record amongst other things "…disciplinary because can't come to work to do their job".
  1. [38]
    Ms Ruyg was asked in cross-examination:

Can I ask you to answer this question. You've said you’re aware of the grounds on which a Local Government employer can terminate - sorry, can commence disciplinary action against an employee and terminate their employment. You’ve said you understand these grounds. What I'm saying to you is none of those grounds applied to Mr Elmes, did they?---Not carrying out - not being - carrying out their duties in the capacity of a council officer.

So that’s your evidence. You believe that he was - it was appropriate under the Local Government Act to take disciplinary action because Mr Elms was not undertaking the duties of his employment?---No. I was - I issued the show cause notice, or so there - in order to afford natural justice.

The show cause notice specifically refers to disciplinary action, doesn't it?---I didn't see legal advice before I issued that show cause notice. It is a template. But it was in order to give Neville a chance to put forth any mitigating circumstances, and in order to -  to have - the CEO have something to consider.[4]

  1. [39]
    Further in cross-examination, Ms Ruyg said:

And you'll agree, won't you, that there was no ground to take disciplinary action against Mr Elmes, was there?---Other than that termination constitutes a disciplinary action.

Sorry. I'm asking you: there was no proper ground to commence a disciplinary action against Mr Elmes, was there? No, there wasn't. As I said, this was to afford Neville natural justice.[5] 

  1. [40]
    Ms Ruyg prepared the Show Cause Notice for the signature of Mr Owen.  In my view, Ms Ruyg was either confused or misunderstood the show cause process.  Mr Owen did not give the show cause process, in particular the Show Cause Notice, the attention it deserved prior to signing it and having it issue.  He accepted as much in his evidence to the Commission.
  1. [41]
    Notwithstanding his evidence that the termination of the applicant was not undertaken pursuant to the Local Government Act, Mr Owen said the following in his oral evidence before the Commission:

So is it your evidence that it was basically Ms Ruyg’s decision that Mr Elmes was not fit to return to work and therefore should be terminated?---No.  The decision is mine and it always has been mine.  In the Local Government Act up until about two years ago the CEO was the only person who could take disciplinary action for the purposes of the Act.  That was amended to I think about two years ago, Deputy President, and the CEO was able to delegate the powers to undertake disciplinary action, including termination.  I never – I delegated some of the other powers.  I’d never ever delegated the power for termination because I took it so seriously and I wanted to be the final reviewer, if you like, to make those decisions to ensure that both the employee and council – their interests were protected.[6]

  1. [42]
    The evidence of Ms Ruyg and Mr Owen on the process adopted by Council in issuing the show cause notice was unconvincing.  I do not accept that the show cause notice was not issued in reliance on the LG Act or the LG Regulation but rather issued in that form to afford the applicant natural justice - "to give him a chance to respond".[7]
  1. [43]
    The show cause notice failed to identify a matter within s 279 of the LG Regulation which, if proven, would ground a disciplinary finding under s 197 of the LG Act.
  1. [44]
    As was observed in Promnitz v Gympie Regional Council:

"Section 278 of the Regulation provides that Division 1 “prescribes” when a chief executive officer may take disciplinary action, and the types of action which may be taken. In these circumstances, “prescribes” means “to lay down … as a rule or a course to be followed”, “to lay down rules, direct, or dictate” or to “lay down or impose authoritatively”. In other words, Division 1 sets out what is to be done if a chief executive officer decides to take disciplinary action.

The words of s 283 are written in an imperative manner: “the chief executive officer must give the employee”. Further, s 283(2) emphasises the importance of the notice to be given under s 283(1) by providing that no other ground or particular of conduct “can be advanced in any proceeding about the disciplinary action taken against the local government employee”. That particular set of words is wide enough to include a proceeding such as this where discretionary relief was sought."[8]

  1. [45]
    Martin J went on to conclude:

   "Section 283:

  1. (b)
    is in mandatory form,
  1. (c)
    is confined to actions under the Local Government Act 2009, and
  1. (d)
    affords a right to an employee to be told of the allegations and to be given an opportunity to respond.

The proper construction of s 283 of the Regulation is that a failure to give a notice in the terms set out in that section results in the invalidity of any action taken by the Council with respect to discipline under this part of the Regulation."

  1. [46]
    The function of particulars is to enable the applicant to know the exact nature of the case which, through the show cause process, he is called upon to meet.[9]  Particulars are not the same as allegations.[10]
  1. [47]
    Absent proper particulars, the applicant had no real opportunity to adequately identify the matter alleged against him and to be in a position to provide a proper defence.  
  1. [48]
    Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[11] ('Re Minister'), in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37]):

"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

  1. [49]
    I accept that there was insufficient particulars contained in the show cause letter.  In that regard, it failed to give a "written notice" in the terms set out in the LG Regulation.
  1. [50]
    I further accept that the show cause notice was a "written notice" for the purposes of s 283 of the LG Regulation.
  1. [51]
    The show cause notice did not comply with the requirements of s 283 of the LG Regulation and, accordingly, any action taken by the respondent against the applicant in reliance on it must be invalid.
  1. [52]
    I would for the reasons advanced above, declare that the purported termination of the applicant was invalid.
  1. [53]
    In addition to the LG Act, the authorising legislation for the show cause was said to be the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act').
  1. [54]
    In that regard, the termination letter further states:

"As you acknowledged in your response, Section 232B of the Workers' Compensation and Rehabilitation Act allows for the termination of an injured worker 12 months after sustaining an injury."

  1. [55]
    The applicant's response does not, as asserted, accept that s 232B of the WCR Act "allows" for the termination of an injured worker 12 months after sustaining an injury.
  1. [56]
    The applicant's response letter clearly states:

"The WCR Act does not authorise taking disciplinary action against an injured worker who complies with his obligations under that legislation.

Even though taking action pursuant to s 323B WCR Act to dismiss an injured worker more than 12 months after sustaining an injury may be valid, we submit that such action would still be harsh unjust and unreasonable in Mr Elmes' circumstances:

  • His operation is imminent and following the usual post-operative rehabilitation period, he is expected to be fully fit to resume his work duties.
  • A dismissal at this time would be portrayed as punitive action against Mr Elmes for Council's failure to terminate his tenancy and have him vacate staff premises supplied by Council, through proceedings in the Queensland Civil and Administrative Tribunal."
  1. [57]
    Section 232B of the WCR Act does no more than prohibit, within twelve months after a worker sustains an injury, the dismissal of a worker solely or mainly because the worker is not fit for employment in a position because of the injury.

Was there a valid reason for termination based on capacity?

  1. [58]
    The affidavit of Mr Owen sets out a number of matters upon which he relied in forming an "independent opinion" on whether or not to terminate the applicant's employment due to capacity.  In particular, Mr Owen said that he "…was not satisfied on the information available to CSC that Mr Elmes would in fact be fit to resume his work duties within a reasonable time after that, particularly given his age (64) and his other health problems".  Further, he relied on the "Verbal advice given to me by Ms Ruyg that LGW indicated that there were other matters that would likely prevent Mr Elmes from returning to work quickly".
  1. [59]
    Ms Ruyg said she contacted Mr Doug Furness from LGW on 5 August 2015. Mr Furness was not called to give evidence.  However, the evidence of Ms Ruyg was that she was advised by Mr Furness that LGW was seeking further information regarding the applicant's capacity to return to work from Dr Morrey and was also seeking a further medico-legal report from Dr Foote in September 2015.
  1. [60]
    What is clear from the evidence of Ms Ruyg is that LGW informed her that it was seeking further medical advice as they did not know whether or not the applicant would ever be fit to return to his employment.  Further, a medico-legal report was being sought from Dr Foote so that LGW could determine whether the applicant's injury could "be declared stable and stationary."
  1. [61]
    Following the conversation with Mr Furness, Ms Ruyg said she reviewed the relevant legislation "…to see if CSC could consider terminating Mr Elmes's employment."  On the same day she met with Mr Owen to tell him of the conversation she had had with Mr Furness.  It was during this meeting that Mr Owen decided to issue a Show Cause Notice.
  1. [62]
    Mr Owen accepted in cross-examination that at the time of issuing the show cause notice he had no information to determine the fitness of the applicant to undertake his duties.[12]
  1. [63]
    Mr Owen was asked in cross-examination:

When you made the decision either for the show cause notice ---?---For the termination?

 ---or the termination, what documentation did you have in front of you?---The termination, I had in front of me the response from the show cause notice.  I had Mr Elmes’ file in front of me that showed he’d been off work for I think roughly 14 months at that stage from memory.  I had information from the manager of HR saying that he was not fit to return to work at this stage, and I had some information from LGW which I obtained through again the manager of HR.

   What information did you have from LGW?---I touched on---

   You’re talking about verbal – second-hand verbal information?---Yes.

   You didn’t have any medical reports?---No.  I’ve said that previously.

You didn’t have any assessment by an OT or a doctor against the inherent requirements of the position?   Again I would have expected that if those reports were there they would have been provided in the response to the show cause notice, simply because we rely on our insurer and council doesn’t go out and get independent reports.

You had no risk assessment in front of you in relation to the possibility of Mr Elmes returning to suitable duties or returning to his previous role?---The only information I had about suitable duties was that Mr Elmes did not want to participate in that program.

No, that’s untrue, isn’t it?  You were involved in a meeting in 3rd of September on your evidence where that was discussed and those suitable duties were provided for Mr Elmes?--- - --?---No, that’s---

 ---weren’t you?---That’s incorrect.  I touched on this just earlier in my evidence, saying that that meeting on the 3rd of September – I said how can we decide on any suitable duties when we don’t know what Mr Elmes can and can’t do?

And you’re aware that there weren’t – wasn’t any further action taken in relation to trying to get Mr Elmes into suitable duties, weren’t you?---My understanding is that is because Mr Elmes said he didn’t want to participate in the program.

   You have no direct knowledge of that, do you?---I have no direct knowledge.[13]

  1. [64]
    In cross-examination, Ms Ruyg was asked:

So your primary aim at that point was to terminate Mr Elmes' employment? That irrefutable, isn't it? ---Yes.[14]

  1. [65]
    The evidence demonstrates that Mr Owen did not have evidence sufficient to form an opinion that the applicant was "Not fit for employment in a position because of injury".  Mr Owen accepted that he had no medical or other assessment as to the fitness of the applicant to return to work.  Equally, there is no evidence before the Commission to suggest that LGW had "… indicated that there were other matters that would likely prevent Mr Elmes from returning to work quickly."
  1. [66]
    Mr Owen told the Commission that Council did not seek to have the applicant examined by an independent medical specialist.  Rather, it was his evidence that Council would rely on LGW: "We don’t go seeking independent issues because we assume that they’ll do it."[15]
  1. [67]
    In J Boag and Son Brewing Pty Ltd v Allan John Button[16] the Full Bench of Fair Work Australia found that:

"[w]hen an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

   …

[i]t is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense."

  1. [68]
    More recently, the Full Bench of the Fair Work Commission in Lion Dairy and Drinks Milk Limited v Norman[17] after considering a number of previous authorities on the issue of capacity, particularly in relation to medical conditions, wrote:

   "[25]  It is possible to extract the following principles from the above cases:

• Capacity cases based on medical opinions are different to misconduct cases. In capacity cases the employer is usually required to have regard to an expert opinion or opinions – not to make an independent assessment of what is essentially a medical question. In misconduct cases, an employer is required to make a finding of whether the employee engaged in the conduct concerned.

• In an unfair dismissal case the relevant factual matrix must be considered by the Commission. In a case where the reason for dismissal is misconduct the Commission must consider whether the conduct occurred based on the evidence before the Commission. In a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss.

• The existence of a valid reason for termination based on capacity depends on whether the reason was sound, defensible and well founded – and not capricious, fanciful, spiteful or prejudiced – considered in the context of the object of ensuring a ‘fair go all round’.

• It is appropriate to have regard to medical assessments that relate to the capacity to perform the full duties of the position.

• It is also appropriate to have regard to whether reasonable adjustments may be made to a person’s role in order to accommodate any current or future incapacity. However such consideration of what may be reasonable adjustments will be within the context of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.

• The absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity.

 • A decision based on the existence of a medical opinion that an employee cannot perform the inherent requirements of a job is suggestive of a valid reason because such a decision is sound, defensible and well founded."

  1. [69]
    There was no valid reason for the termination of the applicant absent a medical assessment to determine his capacity to perform the inherent requirements of his position.  It was incumbent on the Council to have obtained and considered such an assessment prior to terminating the applicant.  It did not do so.  The decision to terminate was not "sound, defensible or well founded".

Eviction proceedings

  1. [70]
    It was submitted that the filing of a complaint or taking part in proceedings against an employer involving alleged violation of laws or recourse to competent administrative authorities would constitute an invalid reason for dismissal for the purposes of s 73(2)(e) of the IR Act.
  1. [71]
    As the chronology of events clearly demonstrates, on 3 August 2015 the respondent filed a notice in QCAT challenging the eviction.  On 5 August 2015, Mr Owen and Ms Ruyg meet to discuss the issuing of a show cause notice to the applicant.  On 10 August 2015 the QCAT application was adjourned.  On 19 August 2015 the applicant's employment was terminated.
  1. [72]
    It is not in dispute that it was a term of the applicant's contract of employment that he was provided by Council with residential accommodation.  The letter of the Council dated 21 September 2011 sets out the terms and conditions of the applicant's employment. In particular, Clause 10 provides as follows:

"10. Rental Accommodation: Provision of a 2 bedroom dwelling at the subsidised rate of $90 per week which will be reviewed by Council annually. A bond will be required equal to 4 weeks of rent or $400 whichever is greater."

  1. [73]
    The oral evidence of Mr Owen was as follows:

So you've been well aware that if there is a term in your contract entitling you to accommodation that to ask the person to leave while they're still employed is a breach of that term of contract, isn't it? ---I would say that terms of contracts are read on their own. The contract is read as a whole. There is also another term in the contract of employment that employees must abide by Council's code of conduct and relevant policies at the time as well.

So what code of conduct had Mr Elms breach?---I'm not saying he breached any code of conduct, but I'm certainly saying that the housing policy and the powers within that housing policy applied to that contract as well.[18]

  1. [74]
    The contract of employment relevantly sets out in clause 18 the following:

"Employment Policies and Procedures

You are directed to read and comply with the obligations imposed upon you within Council's policies and procedures as they relate to your appointment. These policies and procedures may be varied from time to time, and you are directed to comply with such variations. Such procedures and policies did not form part of your contract of employment.

A breach of your obligation under Council's policies and procedures may result in disciplinary action, including the immediate termination of your employment."

  1. [75]
    The Council's Housing Policy relevantly provided that:

"6.1.a. Council will construct or purchase to ensure sufficient housing is available for staff

…

6.2.c To remove any doubt, housing will be available for locally-based staff.

…

6.2.f. The CEO may reallocate housing, including moving tenants to different housing, if required for operational or other reasons …"

  1. [76]
    In terms of the "reallocation" of the applicant's house, Mr Owen's evidence was:

"27. By May 2015, Mr Elms had been on sick leave for 11 months due to his shoulder injury. I was informed by the HR Manager that the shoulder operation he required had been postponed for the second time the due to Mr Elms incurring a second (non-work-related) injury or illness, and that this made it unlikely he would be able to return to his pre-injury duties within a reasonable time frame.

  1. Whilst Mr Elms was on leave it became clear that for operational reasons, CSC required the house. Grader operators are entitled to staff housing. At the time, we had a grader operator, his wife and children living in a caravan on private land in heat of over 40 degrees Celsius. I wanted to ensure the grader operator remained in our employee, so I wish to accommodate him in the house occupied by Mr Elms. This is what happened when Mr Elms vacated the house.
  1. On 19 May 2015 I sent to Mr Elmes a Notice to Vacate the premises. Mr Elmes refused to vacate the premises and challenged that Notice in QCAT. The fact that QCAT proceedings were on foot was not relevant to my decision to terminate his employment. I did not terminate his employment as a punitive action for the QCAT proceedings."
  1. [77]
    The definition of "reallocate" in the Oxford Dictionary is to "allocate again or in a different way".  The provision in the Staff Housing Policy permitting the CEO to reallocate housing would not, in my view, extend to the Council evicting the applicant from housing allocated to him in accordance with his contract of employment.  The housing policy would permit, as envisaged in clause 6.2.f, the movement of a tenant to a different house, if required for operational or other reasons.
  1. [78]
    The Council's attempt to evict the applicant from his employer supplied premises was based, it was suggested, on a pressing need to accommodate a trim grader operator and his family who, it was feared, would leave if accommodation was not found.
  1. [79]
    The oral evidence of Mr Owen was that his general approach to the allocation of housing was:

Is it the case that you prioritise persons who are actively working for council and persons who were off work because of a WorkCover injury?---In this case that's a reasonable summation.[19]

  1. [80]
    The evidence of Ms Ruyg was that there was a housing shortage. In her affidavit she deposed:

"55. In May 2015, it became clear that CSC required the house in which Mr Elmes resided for operational reasons. As it was unclear when Mr Elmes would return to the workplace, CSC was required to find a replacement Roads and Construction Foreman. As such, CSC housing would be needed for the replacement position.

  1. I discussed this issue with Peter Leaver the RRTWC. At that time, all of the CSC's housing stock was already allocated, there was a long waiting list to access local housing through the community housing co-op and there was no private rental stock available in Normanton."
  1. [81]
    On 19 May 2015, the applicant was served with a Notice to Vacate his Council-supplied premises.  He refused and a reminder letter was forwarded by the Council to the applicant requiring him to vacate the premises by midnight on 22 July 2015.
  1. [82]
    It is the contention of the applicant that the Commission should find that the evidence of the applicant's involvement in the QCAT proceedings supports a conclusion that s 73(2)(e) of the IR Act has been enlivened.  As a consequence, any finding that the dismissal was based upon any of the matters identified in s 73(2)(e) would constitute an invalid reason.
  1. [83]
    In CSR Viridian Ltd v Claveria,[20]('CSR Viridian'), a Full Court of the Federal Court of Australia, in dealing with a comparable provision under the Workplace Relations Act 1996, wrote:

"Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer."

  1. [84]
    It is not the case that the applicant has "triggered" any of the provisions contained within s 73(2)(e).  He has not filed a complaint; has not participated in proceedings against his employer involving alleged violation of laws or regulations; nor has he had recourse to competent administrative authorities.
  1. [85]
    Notwithstanding Council's obligation under its Housing Policy to ensure that sufficient accommodation was available for local staff, there was a shortage of available housing.  As the evidence suggests, an approach was adopted by the CEO to prioritise the allocation of housing to persons "who are actively working for council".  The applicant had resisted all attempts to evict him.  Whilst the applicant was an employee and entitled to housing under his contract of employment, he was not as far as Council was concerned "actively working for Council".  Two days after the QCAT proceedings were commenced, a decision was made to issue the applicant with a show cause notice.  The first notice to vacate was issued on 19 May 2015 being almost 12 months to the day after the applicant's injury and the period after which Council believed it had a right to terminate his employment.  The evidence before the Commission leads me to conclude, that having failed to secure an eviction, the show cause process was seen by Council as an opportunity to gain access to the property.  By terminating the applicant's employment, Council would, in a relatively short period of time, gain access to the property.
  1. [86]
    Whilst I do not accept that s 73(2)(e) has current application, I am of the view the Council's desire to access the residence was a factor in his dismissal.

Discrimination

  1. [87]
    Section 73(2)(m) of the IR Act provides that a dismissal will be for an invalid reason and, therefore, unfair, if it was based on discrimination against the employee. 
  1. [88]
    The applicant contends the Council dismissed the applicant for another invalid reason, namely, discrimination under s 73(2)(m) of the IR Act.  For the purposes of the IR Act, discrimination means "that would contravene the Anti-Discrimination Act 1991".[21]  The Anti-Discrimination Act (the 'AD Act') prohibits discrimination on the grounds of impairment.
  1. [89]
    The Council submits that it is not unlawful to discriminate in the workplace if an exemption under ss 25-36 or Part 5 of the AD Act applies.  Specifically, the Council relies on s 25(1) of the AD Act.  Section 25(1) of the Act provides that a person may impose genuine occupational requirements for a position.
  1. [90]
    It was contended by the Council that it was a genuine occupational requirement of the position of a Roads and Construction Foreman that he be able to engage in some physical or manual labour including lifting, carrying, pushing and pulling and the applicant was unable to comply with this genuine occupational requirement because of his impairment.
  1. [91]
    In X v Commonwealth,[22] the High Court of Australia considered the dismissal of a soldier from the Australian Defence Force ('ADF') because he had tested positive to HIV.  The soldier was discharged from the ADF despite being asymptomatic and in excellent physical health at the time. High Court concluded that the inherent requirements of the position must be assessed in context and include the ability to work in a manner that does not pose a risk to the health or safety of the individual or other employees.  The Court set out the following test to determine whether the disability prevents the employee from carrying out the inherent requirements of the employment, the following issues will ordinarily have to be addressed:

"1.  By reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer? In determining whether there is relevantly a real risk, the Commission will have to consider:

  1. (a)
    the degree of the risk;
  1. (b)
    the consequences of the risk being realised;
  1. (c)
    the employer's legal obligations to co-employees and others, whether arising from a common law duty of care, occupational health and safety statutes, or other aspects of the employment regulatory regime;
  1. (d)
    the function which the employee performs as part of the employer's undertaking;
  1. (e)
    the organisation of the employer's undertaking.
  1. If the answer to question 1 is no, then the disability does not prevent the employee carrying out any inherent requirement of the particular employment. If the answer to question 1 is yes, however, it will be necessary to determine under s 15(4)(b) whether the employee could carry out the work safely with the assistance of "services or facilities" which the employer could provide without unjustifiable hardship."
  1. [92]
    McHugh J wrote: 

"... 'the inherent requirements' of a 'particular employment' are not confined to the physical ability or skill of the employee to perform the 'characteristic' task or skill of the employment. In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees."

  1. [93]
    In CSR Viridian, Mansfield J said:

"If the person, through some medical reason – whether physical or psychological – cannot perform the work safely, then that will mean that a person cannot meet the inherent requirements of the particular employment."

  1. [94]
    His Honour went on to warn employers not to abuse the defence:

"That is not intended as a mandate to drive a horse and cart through the operation of [the act] by permitting the exception such a wide area of operation that the proscription is of little practical import. The umbrella of safety will not automatically provide shelter from the operation of s 15. Its provisions, and the provisions of the Disability Discrimination Act generally, will often be the final refuge of the disadvantaged in our society. As the last protection of the more vulnerable members of society to the whims or caprices of others, such legislation should be construed, if anything, somewhat aggressively and any limitations upon its operation construed narrowly."

  1. [95]
    The Commonwealth statutory equivalent of s 25(1) of the AD Act is the exemption contained in s 15(4) of the Disability Discrimination Act 1992 (Cth) where a person, because of his or her disability "would be unable to carry out the inherent requirements of the particular employment."  There is no relevant distinction between the tests in s 25(1) of the AD Act and s 15(4) of the Disability Discrimination Act 1992 (Cth).[23]
  1. [96]
    In Qantas Airways Limited v Christie[24]it was held that the inherent requirements of a position are primarily those which are essential and indispensable to carrying out the particular employment.  Gaudron J wrote that a practical method of determining whether or not a requirement is an "inherent requirement" in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.
  1. [97]
    Having regard to the reasons already given, it is not necessary for me to determine this point.  However, for completeness I make the following general observations.  It would seem to me that the difficulty the Council faces in advancing such an argument lies in the fact that at the time of termination it did not have any independent assessment, medical or otherwise to support its contention that the applicant was not fit for employment.
  1. [98]
    It is incumbent upon the Commission to consider both lay evidence and expert medical evidence when making a determination as to the medical condition of an employee and when assessing what is, or is not, an inherent requirement of a job.  Both Gummow and Hayne JJ in X v Commonwealth considered the assessment of an inability to perform the inherent requirements of a position and concluded that the inability must be assessed in a practical way, but it is inability not a difficulty that must be demonstrated.
  1. [99]
    There was no evidence adduced by the Council, such as expert opinion, to enable the Commission to make an independent assessment of the applicant's capacity.  Both Mr Owen and Ms Ruyg confirmed in their evidence no risk assessment was undertaken nor was any expert medical assessment sought or obtained prior to the termination.  Absent a clear finding by an appropriate medical practitioner the employee cannot perform the inherent requirements of the job it would be difficult for this Commission to conclude that the Council could avail itself of the defence in s 25(1) AD Act.

Conclusion

  1. [100]
    For the purposes of this assessment under s 77 of the IR Act, I have focused primarily on the elements of s 77 of the IR Act, notwithstanding the legal and technical omissions already identified in the show cause notice under the LG Act and LG Regulation.
  1. [101]
    In considering the totality of the evidence before the Commission as to the reason for the applicant's dismissal, the answer to the question "Was the applicant notified of the reason for his dismissal?" must be "No."
  1. [102]
    It is not in dispute between the parties that for the purposes of s 77(b) of the IR Act the dismissal did not relate to operational requirements of the respondent but rather to the applicant's conduct, capacity or performance and, in particular, his capacity.
  1. [103]
    The issuing of the Show Cause Notice under the LG Regulation was, on any view of the evidence before the Commission, misconceived.
  1. [104]
    Having regard to the form of the show cause notice it was reasonable to expect that the applicant was under the belief that he was defending a disciplinary process under the LG Act and the LG Regulation.  Indeed, the applicant's response to the show cause notice prepared by the Cairns CLC was couched in those terms.
  1. [105]
    In Wadey v YMCA Canberra[25] Moore J dealt with the issue of what would constitute an opportunity to defend when he wrote:

"[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend."

  1. [106]
    Mr Owen did not make an independent or considered assessment of the issues before signing the Show Cause Notice on 6 August 2015.  It is clear that he relied on the advice of Ms Ruyg.
  1. [107]
    The termination letter of 19 August 2015 did not deal with the detailed submissions concerning a disciplinary action under the LG Act raised by the Cairns CLC contained in the response to the show cause notice.  Council merely repeated the error in the termination letter by reasserting that Council issued a show cause notice in order to meet its obligations under the LG Act.
  1. [108]
    The response letter advised that Dr Morrey was scheduled to perform surgery on the applicant in Cairns on 28 August 2015 and that it was expected that he would be fully fit to resume his work duties following that surgery.  The response letter also advised that a copy of the Operation checklist confirming that date was attached.  Mr Owen told the Commission that the checklist was not attached but he did not attempt to obtain a copy of it.[26] 
  1. [109]
    Ms Ruyg had, by this time, also been informed of the applicant's rescheduled arthroscopic surgery.  It is clear from the evidence that the Council had all but decided to terminate the applicant following the meeting on 5 August 2015.  No attempts were made following the meeting on 3 September 2014 to develop a suitable duties programme.  Indeed, Mr Owen acknowledged that he put a stop to the meeting because no one could advise as to what the applicant could or could not do.[27]
  1. [110]
    In light of the facts outlined above, I am not satisfied that the evidence before the Commission could support a conclusion that in accordance with s 77(c)(ii) of the IR Act the applicant has been given an opportunity to respond to the allegation.             
  1. [111]
    The consequences that flow from a show cause process can be dire for an employee. A local government employee is entitled to expect, at the very least, that the officers of the Council responsible for overseeing such a process have exercised those responsibilities diligently.  Unfortunately, in this instance, they did not.
  1. [112]
    The Council may be inconvenienced by the outcome of these proceedings but it must be remembered it was on notice the show cause process was flawed and took no action to rectify the situation.  It chose not to recommence the show cause process even though this could have been done with little or no real inconvenience.  Rather it proceeded to terminate the applicant's employment.

Was the Dismissal Unfair?

  1. [113]
    The IR Act relevantly provides:

  "73 When is a dismissal unfair

  1. (1)
    A dismissal is unfair if it is -
  1. (a)
    harsh, unjust or unreasonable; or
  1. (b)
    for an invalid reason.

  …"

  1. [114]
    The phrase 'harsh, unjust or unreasonable' was considered by the High Court in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd [28] ('Byrne') where McHugh and Gummow JJ wrote:

"In Bostik (Aust) Pty Ltd v Gorgevski (No 1)(174), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

'These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive.'"[29]

  1. [115]
    In Byrne, McHugh and Gummow JJ also observed:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employer or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[30]

  1. [116]
    Having weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the IR Act, I have come to the conclusion that the applicant's dismissal was harsh, unjust or unreasonable.  The dismissal was therefore "unfair" within the meaning of s 73 of the IR Act.

Remedies

  1. [117]
    Section 78 of the Act gives the Commission the power to reinstate an employee in circumstances where their termination has been found to be unfair.
  1. [118]
    Section 78 of the IR Act provides as follows:

 "78 Remedies - reinstatement or re-employment

  1. (1)
    This section applies if the commission is satisfied an employee was unfairly dismissed.
  1. (2)
    The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

  (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.

  (4) The commission may also -

  1. (a)
    make an order it considers necessary to maintain the continuity of the employee's employment or service; and
  1. (b)
    order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
  1. (c)
    order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.

 (5) This section does not limit the commission's power to make an interim or interlocutory order."

  1. [119]
    The applicant seeks reinstatement. 
  1. [120]
    Reinstatement is the primary remedy under the IR Act and s 79, the provision relating to compensation, is only enlivened "If, and only if, the commission considers reinstatement or re-employment would be impracticable."
  1. [121]
    It was submitted by the respondent that it was impractical to reinstate the applicant.  In support of that submission, the Council relies primarily on the evidence of Mr Owen and Mr Parry.
  1. [122]
    Mr Parry said that he had lost trust and confidence in the applicant because of the applicant's delay in submitting a claim for workers compensation.
  1. [123]
    Mr Owen's evidence as to the impracticability of the applicant returning to his former position is set out in paragraph 24 of his affidavit. Essentially, the concerns raised by him relate to the applicant's fitness to undertake his duties and the potential burden on other employees if the applicant was not able to do his work.
  1. [124]
    The only relevant medical evidence before the Commission is the workers' compensation medical certificate issued by the applicant's orthopaedic surgeon, Dr Morrey, on 8 April 2016.  The certificate states that the applicant has the capacity "[t]o return to normal duties from 26 May 2016."
  1. [125]
    Whilst I accept that it has been some time since the applicant has performed the duties of a Road and Construction Foreman and it may be inconvenient or difficult for the respondent to reinstate him, it is nevertheless, in my view, not impracticable for them to do so.  In Auto Logistics Pty Ltd v Kovacs[31] de Jersey P considered the meaning of word "impracticable".  His Honour concluded:

 "That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."[32]

  1. [126]
    The evidence before the Commission does not support a conclusion that it would be impracticable to reinstate the applicant.  It must therefore follow that the applicant ought to be reinstated to his former position.

Orders

  1. [127]
    For the reasons advanced above I make the following orders:
  1. (i)
    The application is granted;
  1. (ii)
    Pursuant to s 274A of the Industrial Relations Act 1999, I declare that the purported termination of the applicant on 19 August 2015 was invalid;
  1. (iii)
    That the applicant be reinstated to his former position with the respondent;
  1. (iv)
    The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and
  1. (v)
    The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission.

Footnotes

[1] T2-48 Ll. 38-46 and T2-49 Ll. 1-14.

[2] T2-52 Ll.43-47 and T2-52 Ll. 1-12.

[3] Exhibit marked LCR13 to the Affidavit of Lisa Ruyg.

[4] T2-23 Ll. 43-36 and T2-24 Ll. 1-12.

[5] T2-24 Ll. 34-40.

[6] T2-51 Ll. 28-37.

[7] T2-50 Ll.42.

[8] [2015] ICQ 011 (citations omitted).

[9] R v Saffron (1998) 17 NSWLR 395; Dare v Pullman (1982) 148 CLR 658, 664.

[10] R v Saffron (1998) 17 NSWLR 396 as per Hunt AJA, 446-449.

[11] [2003] HCA 6.

[12] T2-51 Ll.11.

[13] T2-51 Ll. 43-47 and T2-52 Ll. 1-35.

[14] T2-23 Ll. 1-2.

[15] T2-57 Ll. 36-39.

[16] (2010) 195 IR 292.

[17] [2016] FWCFB 4218.

[18] T2-39 Ll. 41-46 and T2-40 Ll. 1-3.

[19] T2-40 Ll. 20-24.

[20] (2008) 171 FCR 554.

[21] Anti-Discrimination Act 1991 s 78(a).

[22] [1999] 200 CLR 177.

[23] Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 [101].

[24] (1998) 193 CLR 280.

[25] [1996] IRCA 568.

[26] T2-57 Ll. 27-30.

[27] T2-24 Ll. 19-25.

[28] (1995) 185 CLR 411.

[29] (1995) 185 CLR 411, 467.

[30] (1995) 185 CLR 411, 465.

[31] (1997) 155 QGIG 320.

[32] (1997) 155 QGIG 320, 321, citing Liddle v Lembke (1994) 127 ALR 342, 360.

Close

Editorial Notes

  • Published Case Name:

    Elmes v Carpentaria Shire Council

  • Shortened Case Name:

    Elmes v Carpentaria Shire Council

  • MNC:

    [2016] QIRC 118

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    11 Nov 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs (1997) 155 QGIG 320
2 citations
Jump To
Cite 1 - (1997) 155 QGIG 320
Cite 2 - (1997) 155 QGIG 320
Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320
1 citation
Jump To
Cite 1 - (1977) 155 QGIG 320
CSR Viridian Ltd v Claveria (2008) 171 FCR 554
2 citations
Jump To
Cite 1 - (2008) 171 FCR 554
Cite 2 - (2008) 171 FCR 554
Dare v Pulham (1982) 148 CLR 658
2 citations
Jump To
Cite 1 - (1982) 148 CLR 658
Cite 2 - (1982) 148 CLR 658
Frew v Australian Airlines Ltd (1995) 185 CLR 411
4 citations
Jump To
Cite 1 - (1995) 185 CLR 411
Cite 2 - (1995) 185 CLR 411
Cite 3 - (1995) 185 CLR 411
Cite 4 - (1995) 185 CLR 411
J Boag and Son Brewing Pty Ltd v Allen John Button (2010) 195 IR 292
2 citations
Jump To
Cite 1 - (2010) 195 IR 292
Cite 2 - (2010) 195 IR 292
Liddell v Lembke (1994) 127 ALR 342
2 citations
Jump To
Cite 1 - (1994) 127 ALR 342
Cite 2 - (1994) 127 ALR 342
Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218
2 citations
Jump To
Cite 1 - [2016] FWCFB 4218
Cite 2 - [2016] FWCFB 4218
Promnitz v Gympie Regional Council [2015] ICQ 11
2 citations
Jump To
Cite 1 - [2015] ICQ 11
Cite 2 - [2015] ICQ 11
Qantas Airways Ltd v Christie (1998) 193 CLR 280
2 citations
Jump To
Cite 1 - (1998) 193 CLR 280
Cite 2 - (1998) 193 CLR 280
R v Saffron (1998) 17 NSWLR 396
1 citation
Jump To
Cite 1 - (1998) 17 NSWLR 396
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
2 citations
Jump To
Cite 1 - [2003] HCA 6
Cite 2 - [2003] HCA 6
Saffron v The Queen (1998) 17 NSWLR 395
2 citations
Jump To
Cite 1 - (1998) 17 NSWLR 395
Cite 2 - (1998) 17 NSWLR 395
Toganivalu v Brown & Department of Corrective Services [2006] QADT 13
2 citations
Jump To
Cite 1 - [2006] QADT 13
Cite 2 - [2006] QADT 13
Wadey v YMCA Canberra [1996] IRCA 568
2 citations
Jump To
Cite 1 - [1996] IRCA 568
Cite 2 - [1996] IRCA 568
X v Commonwealth (1999) 200 CLR 177
2 citations
Jump To
Cite 1 - (1999) 200 CLR 177
Cite 2 - (1999) 200 CLR 177

Cases Citing

Case NameFull CitationFrequency
Bentzen v Hinchinbrook Shire Council [2021] QIRC 1582 citations
Elmes v Carpentaria Shire Council (No 2) [2017] QIRC 395 citations
Schipp v The Star Entertainment Qld Limited [2019] QIRC 493 citations
Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 92 citations
1

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