Searle v Fraser Coast Regional Council
[2018] QIRC 40
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- Unreported Judgment
- Searle v Fraser Coast Regional Council[2018] QIRC 40
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Searle v Fraser Coast Regional Council[2018] QIRC 40
Searle v Fraser Coast Regional Council[2018] QIRC 40
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Searle v Fraser Coast Regional Council [2018] QIRC 040 |
PARTIES: | Searle, Robert (applicant) v Fraser Coast Regional Council (respondent) |
CASE NO: | TD/2018/10 |
PROCEEDING: | Application for an injunction |
DELIVERED ON: | 19 March 2018 |
HEARING DATES: | 19 March 2018 |
MEMBERS: HEARD AT: | Deputy President O'Connor Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR INJUNCTION – where applicant seeks to restrain the respondent from advertising the position of Senior Strategic Open Space and Recreation Planner and for the position to remain open until the hearing and determination of his formal reinstatement process in the Commission. |
LEGISLATION: CASES: | Industrial Relations Act 1999 (Qld) s 73, s 74, s 83, s 277 Industrial Relations Act 2016 (Qld) s 316, s 473 Fraser Coast Regional Council Certified Agreement 2015 Queensland Local Government Industry Award – State 2014 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Darlington v State of Queensland (Queensland Police Service) [2016] QIRC 072; Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees v The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Union of Employees and Another (1991) 136 QGIG 437 |
APPEARANCES: | Mr R Searle, representing himself Ms S Wishart, for the respondent |
Ex Tempore Reasons for Decision
- [1]Robert Searle was initially employed by the Fraser Coast Regional Council as the Senior Recreational Services Co-ordinator on a series of "maximum fixed term" contracts of employment.
- [2]The applicant received correspondence on 23 October 2017 extending his maximum fixed term appointment as a Recreational Services Coordinator from a commencement date of 25 November 2017 to 30 June 2018.
- [3]The respondent by letter dated 5 January 2018 terminated the applicant’s employment upon the giving of 4 weeks’ notice in apparent reliance on the Queensland Local Government Industry Award – State 2014 or the Fraser Coast Regional Council Certified Agreement 2015.
- [4]It is not in contention that the applicant was employed under a maximum term contract and had his employment not been terminated by the respondent then his employment would have concluded on 30 June 2018 upon the expiration of his extension.
- [5]In short, the applicant seeks the Commission to exercise its discretion to grant an injunction pursuant to s 473 to restrain the respondent from advertising the position of Senior Strategic Open Space and Recreation Planner (the advertised position), and for the position to remain open until the hearing and determination of his formal reinstatement process in the Commission. The applicant writes:
"As this is an application for reinstatement it is requested that the position that I could return be left vacant and the Respondent is prevented from interviewing or making any commitment to any other parties for this Senior Strategic Open Space and Recreation Planner position."
- [6]The respondent resists the application on two grounds. The first is that the Commission does not have jurisdiction under s 473 to grant the injunctive relief sought. Secondly, the advertised position is a different position and consequently is not relevant to any relief sought by the applicant.
- [7]The two questions, therefore, for the Commission to determine are as follows: does the Commission have jurisdiction to grant the relief sought by the applicant? If it does, is this an appropriate matter in which the Commission should exercise its discretion to grant the injunctive relief sought.
- [8]It is the respondent’s contention that the Commission has no power to issue the injunction pursuant to section 473. Section 473 relevantly provides:
473Power to grant injunctions
(1)On application by a person under section 474, the commission may grant an injunction—
(a)to compel compliance with an industrial instrument, a permit or this Act; or
(b)to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
…..
(9)The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.
(10)In this section—
injunction includes an interim injunction.
organisation includes a branch of the organisation.
- [9]The Commission’s attention was drawn to section 473(9) of the Industrial Relations Act which relevantly provides the Commission cannot grant an injunction for a proposed contravention of section 316. Section 316 of the Act deals with unfair dismissals. The effect of s 473 (9) of the Act is to prevent the Commission from exercising its discretionary power to grant an injunction. As Martin J in Darlington v State of Queensland (Queensland Police Service) [2016] QIRC 072 observed:
[13] … [I]t is not immediately obvious how there could be a "proposed contravention" of s 73. It does not impose obligations or restrictions – it defines an unfair dismissal:
“(1)A dismissal is unfair if it is—
(a)harsh, unjust or unreasonable; or
(b)for an invalid reason.”
[14] On the other hand, s 83 (which sets out what an employer must do to dismiss an employee) and s 87 (which deals with, among other things, employers contravening an order about severance allowance) are sections which could be contravened.
[15] The fact that it is not immediately obvious how s 277(11) works with s 73 because of the use of the words “proposed contravention” does not mean that a court is at liberty to ignore them or treat them as superfluous. All words must prima facie be given some meaning and effect. See Project Blue Sky Inc & Ors v Australian Broadcasting Authority. Further, s 14A of the Acts Interpretation Act 1954 provides:
“(1)In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”
[16] It must be accepted, though, that there are occasions in which it may not be possible to provide a full and accurate meaning to every word. See Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors. If that is the case, then the “sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, ‘if after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail.’”
[17] Chapter 3 of the Act deals with dismissals. It contains s 73. The chapter sets out in considerable detail what may and may not be done with respect to the termination of employment. As has been observed, s 73 defines “unfair dismissal” and it, together with s 74 and following, furnishes an employee who has been unfairly dismissed with an avenue for seeking redress.
[18] The word “contravention” has various shades of meaning. It can mean: breach, violation, infringement, non-observance, breaking, transgression, neglect, dereliction, failure to observe, non-compliance, departure from, or infraction. It is possible to read s 73 so that an employer who intends to unfairly dismiss could be regarded as departing from the standard for dismissals established, in part, by s 73. A construction of s 277(11) which gives that meaning to “contravention”, when used with respect to s 73, will produce the greatest harmony and the least inconsistency. While sections 90 and 90A are not relevant to this case, they do provide a context which supports a conclusion that s 277(11) is intended to cover circumstances where it is asserted that a proposed dismissal would be unfair or otherwise contrary to the Act.
[19] When the words of s 277(11) are read together in that way it is reasonably obvious that the sub-section is to have the effect of precluding the Commission from issuing an injunctive order against an employer who proposes to dismiss an employee. The effect of this construction is that there need only be one occasion when the fairness of a dismissal is tested, that is, after it has taken place. To do otherwise would expose an employer to litigation both before and after a dismissal.
- [10]Whilst the relevant provisions referred to by his Honour, referred to the Industrial Relations Act 1999, there’s nothing in those sections and the current Act which precludes them from being adopted in this case.
- [11]In my view, the injunction sought by the applicant is not one which calls upon the Commission to compel compliance with an industrial instrument, a permit or this Act; or to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act. It must follow therefore that the injunction cannot be granted. This is irrespective of the application of s 473(9) of the Act.
- [12]In reality what is sought by the applicant is ancillary to his substantive application for reinstatement.
- [13]The second ground upon which the respondent objects to the application is that the advertised position is not the position that was held by the applicant when he was employed by the respondent. Mr Searle, in his submissions to me, acknowledged that the advertised position is not the same as the position he held prior to his termination on 5 January 2018.
- [14]The respondent further, and importantly, contend that the filling of this position would not impact upon the ability of the applicant to be reinstated to his position with the respondent should his substantive application be successful and the commission satisfied that reinstatement was appropriate.
- [15]In the affidavit of Suzanne Naughton sworn on 16 March 2018 it is deposed that the applicant’s role as a Recreational Service Co-ordinator was to oversee the day to day running of the Respondent’s two aquatic centres and WestSide Water Park.
- [16]The affidavit of Ms Naughton outlined some of the differences between the applicant’s previous position and the subject position. In particular:
The key duties of the advertised position include:
- Developing, leading and coordinating open space and recreational planning projects;
- Coordinating the development and implementation of a regional sport and recreational plan; and
- developing and maintaining stakeholder relationships throughout council in the community to ensure a collaborative approach in the delivery of outcomes.
- [17]Further, the central skills and experiences include advanced skills in developing policy strategies and procedures related to open space and recreation planning; strong project management analytical and investigative skills including the ability to research, analyse data, prioritise tasks and meet deadlines; and proven knowledge and demonstrated skills interpreting and applying legislation relevant to planning and local government operations.
- [18]As outlined in Ms Naughton’s affidavit, the applicant’s previous position was part of the Community and Development Services Directorate and reported to the Executive Management Community and Culture. The key responsibility focused in the applicant’s previous position was upon venue and facility management. It is argued by the respondent that knowledge and skill sets relating to the advertised position and the applicant’s previous position held by the applicant are very different.
- [19]Ms Naughton also deposes that the subject position is a new planning position which sits in the strategic planning team and part of the respondent’s planning area. It covers all recreational services across Council and does not involve the day-to-day operation of the two aquatics centres and the WestSide Water Park.
- [20]I also note in the affidavit of Ms Naughton, that the successful candidate will be responsible for the development application’s coming to Council involving recreation and the position requires tertiary qualifications in planning or alternative qualifications which are recognised by the Planning Institute of Australia. The project position advertised is a level 6 LGO permanent position in contrast to the applicant’s previous position which was a level 5 LGO on a maximum term contract.
- [21]I am satisfied that the positions are different and it would not be an appropriate exercise of the discretion to restrain the Respondent from advertising or filling the advertised position.
- [22]Importantly, I note that Ms Naughton has deposed that should the applicant be successful in his substantive application the filling of this position would not impact on the ability for him to be reinstated to his former position.
- [23]To succeed in obtaining an injunction in this circumstances, the applicant needs to show that there is a serious matter to be tried. The legitimate use of a power to grant an injunction should be, on the authorities, exercised sparingly. In that regard I refer to the decision in Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees v The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Union of Employees and Another (1991) 136 QGIG 437, where Moynihan J, the then President of the Industrial Court of Queensland, wrote:
The power to grant relief sought is a statutory one given to a statutory tribunal. The occasion for its exercise does not then arise unless it is demonstrated that a party against whom the relief is sought is not complying with an award, industrial agreement or the Act or is acting in breach of it.
- [24]I am not satisfied on the material before the Commission that the applicant has demonstrated there has been a noncompliance with an industrial instrument, permit or the Act, or there is a contravention of an industrial instrument, a permit or the Act, and it is continuing or anticipated.
- [25]In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Gleeson CJ and Crennan J in seeking to prescribe a uniform test for the grant of all injunctions of an interlocutory nature, stated:
As Doyle CJ said in the last mentioned case [Jakudo Pty ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 to 443], in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, [[65] to [72]] and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618] should be followed.”
Gummow and Hayne JJ wrote:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief… The second inquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if the injunction were granted."
- [26]The respondent properly accepts that there is a serious question to be tried. I note that there is an adequate remedy for the applicant through the application for reinstatement currently before the Commission. I further accept the submissions of the respondent that the balance of convenience favours a refusal of the application for an injunction. In coming to that view, I accept that the respondent will suffer detriment should the injunction be granted. In particular, I note the need for the Recreational Space Planner has been identified by the respondent and they seek to fill that position as soon as possible. Ms Naughton in her affidavit deposes to the fact that a delay in filling that position by several months would have an adverse impact upon the respondent. In that regard the balance of convenience is in my view against an order being made. The applicant has not demonstrated any detriment that would be suffered by him should the injunction not be granted. In that regard I note that the filling of the advertised position would not impact upon the ability of the applicant to be reinstated to his former position with the respondent should his substantive application be successful. It is also relevant in the exercise of my discretion whether to grant the injunction the fact that the applicant was on a maximum term contract and his employment would have concluded on 30 June 2018.
- [27]It follows therefore for the reasons advance above that the application must fail.