Kelsey v Logan City Council[2018] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   An Application was lodged by Sharon Kelsey (the Applicant) with the Industrial Registrar on 1 December 2017 pursuant to s 285 of the Industrial Relations Act 2016 (IR Act) and s 48 of the Public Interest Disclosure Act 2010 (Qld) (PID Act).

2. [2]
   An Amended Application was lodged by the Applicant with the Industrial Registrar on 18 December 2017 pursuant to s 285 of the IR Act, s 48 of the PID Act and r 18 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (Rules).

3. [3]
   Both of the aforementioned applications were the subject of consideration by Industrial Commissioner Fisher who in the course of proceedings issued Decisions and Orders on the following dates:

Decisions

• 1 February 2018 - Original Decision;

• 1 February 2018 - Reissued Decision; and

• 14 February 2018 - Interim Orders.

Orders

• 4 December 2017 - Order;

• 20 December 2017 - Order No. 2;

• 14 February 2018 - Order No. 3; and

• 27 March 2018 - Order No. 4.

4. [4]
   Upon allocation to the Commission as constituted a Further Amended Application was lodged by the Applicant with the Industrial Registrar on 10 April 2018 pursuant to s 285 of the IR Act, s 48 of the PID Act and r 18 of the Rules.  The decision sought was detailed as follows:

"1. An order pursuant to section 514 of the PID Act and 314 of the IR Act that the First Respondent must not consider or vote upon any resolution in respect of the Applicant's employment, whether pursuant to a probationary process or otherwise, until the completion of the contract term on 25 June 2021 with the First Respondent having leave to apply to vary the order on reasonable grounds.

2. An order pursuant to section 51 of the PID Act and section 314 of the IR Act that the Second to Ninth Respondents take no part in any resolution by the First Respondent in respect of the Applicant's employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent until the completion of the contract term on 25 June 2021 with the Second to Ninth Respondents having leave to apply to vary the order on reasonable grounds.

3. An order pursuant to section 314 of the IR Act that the First to Ninth Respondents pay damages caused by the First to Ninth Respondents to the Applicant.

4. Declarations pursuant to sections 451(2)(c), 464 and 572 of the IR Act that:

1. (a)
   the First Respondent has contravened section 285 of the IR Act.
2. (b)
   the Second to Ninth Respondents are taken to have contravened section 285 of the IR Act as a result of section 571 of the IR Act.

5. Orders pursuant to sections 572 and 574 of the IR Act for the First to Ninth Respondents to pay the penalties referred to in Column 4, Schedule 3 of the IR Act in respect of the corresponding contraventions and that those penalties be paid to the Applicant.

5.1 An order pursuant to section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated.

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

5.3 An order pursuant to section 314(1)(c) of the IR Act and sections 51 and 52 of the PID Act that the First to Ninth Respondents pay the Applicant remuneration (including base salary superannuation and vehicle package) lost as a result of her termination on 7 February 2018.

5.4 An order pursuant to section 314(1)(e) of the IR Act and sections 51 and 52 of the PID Act to maintain the Applicant's continuous service with the First Respondent.

5.5 An order pursuant to section 545 of the IR Act that the First to Ninth Respondents pay the costs of the Applicant.

7. Such further order as the Commission sees fit."

5. [5]
   This decision pertains only to the contents of clause 5.2 of the Further Amended Application in relation to an Interim Order pursuant to s 314(1)(a) of the IR Act and ss 51 and 52 of the PID Act that the Applicant be reinstated or alternatively that the First Respondent recommence the payment of Kelsey's normal salary and associated costs (including back pay from the date of dismissal) until the hearing and determination of these proceedings.

Legislation

6. [6]
   The legislation relevant to the jurisdiction of the Commission to make the Interlocutory Orders is that of:

PID Act

Witness Evidence

7. [7]
   Affidavits of evidence were tendered in the proceedings from the following persons.

Applicant

• Applicant (four) filed 11 January 2018, 22 January 2018, 12 March 2018 and 16 April 2018;

• Darren Power (Power) filed 14 March 2018;

• Benjamin Jones (Jones) filed 14 March 2018.

First Respondent

• Logan City Council (LCC) "Employee A" - filed 12 April 2018;

Third Respondent

• Cherie Dalley (Dalley) (two) filed 22 January 2018 and 18 April 2018;

Fourth Respondent

• Russell Lutton (Lutton) filed 11 April 2018;

Fifth Respondent

• Stephen Swenson (Swenson) filed 11 April 2018;

Sixth Respondent

• Laurence Smith (L. Smith)(three) filed 18 January 2018, 12 April 2018 and 18 April 2018;

Seventh Respondent

• Philip Pidgeon (Pidgeon) filed 11 April 2018;

Eighth Respondent

• Trevina Schwarz (Schwarz) filed 11 April 2018; and

Ninth Respondent

• Jennifer Breene (Breene) filed 11 April 2018.

8. [8]
   A further affidavit was filed on behalf of the Third to Ninth Respondents (inclusive) from:

• Aaron Bradford (Bradford) filed 18 April 2018.

Interlocutory Injunction - Principles

9. [9]
   The Applicant and First Respondent relied upon Australian Broadcasting Corporation v O'Neill^[1] as being the benchmark for the principles relevant to the granting of an interlocutory injunction which incorporated the content of an earlier judgement of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd^[2] which identified the two main enquiries to be made:

"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 probability that at the trial of the action the plaintiff will be held entitled to relief…The second enquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

10. [10]
    The Third to Ninth Respondents cited authorities relevant in the granting or otherwise of interlocutory injunctions being:

• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd^[3];

• Samsung Electronics Co. Limited v Apple Inc^[4];

• Queensland Nurses' Union of Employees AND RSL (QLD) War Veterans Homes Limited (RSL Care)^[5].

11. [11]
    It was accepted that the Commission had jurisdiction under the PID Act and the IR Act to grant an interim injunction to remedy the effects, stop or prevent action to prevent a reprisal and adverse action.

Was there a Prima Facie Case

Applicant

12. [12]
    The Applicant held the view that there existed a probability that the Applicant had an entitlement to relief at trial for reasons that included:

• the Applicant had made a public interest disclosure pursuant to s 40(1) of the PID Act;

• the Applicant had a workplace right for the purposes of s 284 of the IR Act and had exercised that right in accordance with s 285(1)(a)(ii) of the IR Act;

• a person had caused a detriment to the Applicant pursuant to s 40(1) and Schedule 4 of the PID Act;

• the termination of the Applicant's employment was an adverse action taken against her pursuant to s 282(1)(a) of the IR Act; and

• the detriment had been caused because the Applicant had made a public interest disclosure and the adverse action taken against the Applicant because she had exercised a workplace right in contravention of s 285 of the IR Act.

13. [13]
    The First to Ninth Respondents were said to have engaged in a range of conduct that had contravened both the PID Act and the IR Act in respect that they had:

• sought and prejudiced the probation and probation review process of the Applicant;

• undermined and sought to intimidate the Applicant in the course of undertaking her role as the Chief Executive Officer (CEO) of the First Respondent; and

• through the Second Respondent's conduct, sought to cause a detriment to the Applicant for the purposes of impacting the First Respondent's view of the Applicant.

14. [14]
    In particular the actions of the Second Respondent (T. Smith), Third Respondent (Dalley), Fourth Respondent (Lutton), Fifth Respondent (Swenson), Sixth Respondent (L. Smith), Seventh Respondent (Pidgeon) and Eighth Respondent (Schwarz) had been such that it indicated an intention to prevent the Applicant continuing her employment as well as having undermined the Applicant in her role as CEO.

15. [15]
    The actions of the First to Ninth Respondents had been substantially taken because of the Applicant having made a public interest disclosure with those actions involving a breach of the adverse action provisions of the IR Act as a result of the exercising by the Applicant of her workplace rights.

16. [16]
    The actions of the Third to Ninth Respondents had cause the Applicant to suffer loss and damage that included the loss of her remuneration package and had exposed her to legal costs.

17. [17]
    Also of particular relevance was that, notwithstanding a positive probation report (Hunter Report), the Applicant's employment was terminated without any reasons for termination having been provided by the Respondents and it was the case that the evidence presently before the Commission was such that a prima facie case had been established by the Applicant.

18. [18]
    The Applicant by way of a response to the arguments presented by the First to Ninth Respondents maintained that:

• a prima facie case had been made that the reprisal action and adverse action had been taken against the Applicant in contravention of the IR Act and the PID Act; and

• the Applicant's employment had been terminated by the First Respondent as a result of a vote of the Third to Ninth Respondents because of the complaint made by the Applicant.

19. [19]
    The Applicant had clearly suffered a detriment as a consequence of the termination of her employment with admissions from the First Respondent that the vote of the Third to Ninth Respondents to terminate the employment was an adverse action.  The Fourth to Ninth Respondents admitted the decision to terminate the Applicant and this amounted to a detriment against the Applicant.  The Third to Ninth Respondents conceded that the First Respondent was capable of causing a detriment to the Applicant.

20. [20]
    The vote to terminate the Applicant was that of seven Councillors to five with the seven Councillors being the Third to Ninth Respondents with the other five Councillors voting to confirm the Applicant's employment.

21. [21]
    Consistent with s 260(2) of the Local Government Regulations 2012 (LG Regulations) the Commission would need only be satisfied that two or three of the Respondent Councillors were motivated by reasons as alleged by the Applicant for a decision to be reached that the decision to terminate was a reprisal under the PID Act or adverse action under the IR Act.

22. [22]
    The Applicant supported by Power in evidence confirmed that:

• at no time prior to reading the Third to Ninth Respondent's affidavits were they made aware of reasons for the Applicant's termination;

• at no stage prior to reading the Third to Ninth Respondent's affidavits were they made aware of performance concerns about the Applicant's performance; and

• the Hunter Report which was created as a new probationary process by the First Respondent was given little to no weight by the Respondents despite their involvement in selecting and approving the process.

23. [23]
    The Respondents had confirmed their participation in the Hunter Report process but had now abandoned the process despite an overwhelming positive response from managers about the Applicant's work.  The Respondents had also advanced trivial issues such as the Applicant's attendance at an event in costume, or where someone should sit in a meeting which was hardly credible in relation to the performance of a senior executive.

24. [24]
    The reservations now expressed by the Third to Ninth Respondents were against generally positive dealings and comments with the Applicant prior to the making of the public interest disclosure with many of the criticisms now made inconsistent with the context in which those concerns had risen.

25. [25]
    In terms of the conduct of the Respondent's evidence regarding the vote to terminate the Applicant the only joint discussion prior to the vote was focused on risk mitigation as opposed to genuine discussion and debate about her performance.  Further references were made regarding the responses of a number of the Respondents to correspondence of 12 October 2017 in which they were informed of the public interest disclosure and the impact of the correspondence upon them.

26. [26]
    Where there were multiple parties involved in a decision there had been findings which emphasised the importance of considering the reasoning of each person and the effect on the ultimate decision.  They included:

• Leahey v CSG Business Solutions (Aus) Pty Ltd^[6];

• Elliott v Kodak Australasia Pty Ltd^[7]; and

• Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd^[8].

27. [27]
    The Third to Ninth Respondents had a material effect on the decision to terminate the Applicant and thus the reasons for the decision must be considered in context and be established as being free of the alleged prohibited reasons.  Such a conclusion cannot be reached on the filed materials.

28. [28]
    The Fourth to Ninth Respondents refer to legal advice received only hours before the decision to terminate was made and it is unlikely that those Councillors all failed to discuss the vote before the advice was received.  Any Councillor who establishes their reasons for voting were legitimate and free from any inappropriate reason would not be impacted by the making of Orders however it was established that all or some of the Councillors had contravened legislation and they should rightfully be restrained as set out in the both relevant Acts.

29. [29]
    There was no guarantee of the reliability of the Third to Ninth Respondent's evidence remaining the same and in the affidavits of the Fourth to Ninth Respondents there is a basis to indicate that would not be the case.

30. [30]
    The Applicant requires the Interlocutory Orders sought to enable her to protect her position and restore the status quo pending the hearing and determination of the substantive application.  The Applicant had established a prima facie case in relation to the termination.

First Respondent

31. [31]
    The application for Interlocutory Orders was opposed on the grounds that the primary application had little or no prospects of success and that the reinstatement of the Applicant as CEO of the First Respondent in circumstances where she is presently engaged against the Council, the Mayor and seven other Councillors could only lead to further conflict and dysfunction.  Further the payment of all wages and backpay attributable to the termination constitutes a very significant and unwarranted impost of ratepayers which is an amount highly unlikely to be recovered in the event the substantive application fails.

32. [32]
    In determining whether there is a serious question to be answered the evidence as a whole must be evaluated as it presently stands.  The Commission as outlined in Australian Broadcasting Corporation v O'Neill^[9] must find from the evidence, if it was to remain the same that there is sufficient likelihood of success to justify the preservation of the status quo pending the trial.

33. [33]
    The prima facie case relied upon by the Applicant was somewhat elaborate but nonetheless falsely designed to nullify the consequences of her having failed to reach an acceptable standard of competency to a majority of First Respondent Councillors.  Having regard to the whole of the evidence presently before the Commission the assertions and contentions of the Applicant failed to support any sustainable course of action but were designed to control and/or avoid altogether any legitimate termination of her employment on merit grounds.

34. [34]
    A chronology provided indicated that:

35. [35]
    There was no coincidence that it was only after the Third to Ninth Respondents identified themselves as persons who wished to terminate the Applicant's employment that they were joined in the proceedings.  It was clear the Applicant had engaged in a strategy of equating disapproval of her continued employment with improper or unlawful conduct by mere allegation, inference and suspicion to remove from the decision making process each and every Councillor who had expressed their disapproval of her employment performance.  The Applicant through the Further Amended Application seeks to remove clauses 2.3 and 10 from the employment contract thus providing her with a five year fixed contract.

36. [36]
    The Applicant upon becoming concerned that the outcome of the probationary process may not have been favourable, engaged Lawyers to make written complaints, a public interest disclosure and demand probation processes be reviewed.  The Applicant's efforts to change the probation process and the application for Interim Orders were about improving her prospects of a favourable outcome based on her concerns about the Second Respondent.

37. [37]
    In short, the Applicant had sought to prevent any person who was legitimately dissatisfied with her performance as CEO from being permitted to make a decision in that regard and in utilising the mechanisms of the PID Act and IR Act to do this, without any proper foundation.  The vast majority of allegations made against the Third to Ninth Respondents were misconceived and have no basis at law and it was not legitimate for a person such as the Applicant to make the highly damaging and defamatory allegations for the purpose of protecting herself against a decision by a majority as to the quality of her work.

38. [38]
    There is no realistic basis upon the claims against the First Respondent can proceed and accordingly there was no serious question to be tried.

Second Respondent

39. [39]
    The Second Respondent objected to the reinstatement of the Applicant pending the hearing of the matter in that the balance of convenience is against making such Order.  The Second Respondent made no submission on the interim relief sought in regards to payment as that was directed towards the First Respondent as the former employer.

Third to Ninth Respondents

40. [40]
    It was the case there was no serious question to be tried in respect of the termination claim.  The submissions of the First Respondent regarding the chronology relating to the termination of the Applicant's employment on 7 February 2018 were supported.

41. [41]
    The alleged contravention of s 285 of the IR Act not including termination could not constitute adverse action because they were not taken by the employer and were not within the scope of actual authority of the Third to Ninth Respondents.  The actions of each individual in voting to dismiss the Applicant was not adverse action.  The only adverse action was that of the First Respondent terminating the Applicant's employment.

42. [42]
    In terms of the alleged contravention of s 48 of the PID Act, the circumstances were those previously mentioned in relation to the allegations around adverse action.

43. [43]
    For the Applicant it was the case for s 285 of the IR Act she must prove that:

"The respondents took adverse action against the applicant; and

The applicant had exercised a workplace right as identified by the applicant."

If those matters are proven by the Applicant then the onus reverts to the First Respondent to prove that it did not take the action for the prescribed reasons.  If it cannot be established that the Applicant exercised a workplace right or that adverse action was taken against her then the case must fail.  If the Respondent's reasons are accepted then s 285 of the IR Act will not be made out other than the exercising of a relevant right.

44. [44]
    The submission dealt with the discharge of the reverse onus of proof citing a number of authorities that included:

• Board of Bendigo Regional Institute of Technical and Further Education v Barclay^[10];

• General Motors-Holden Pty Ltd v Bowling^[11];

• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd^[12]; and

• Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd^[13].

45. [45]
    Whilst for the purposes of the interlocutory hearing the Applicant does not have the benefit of the reverse onus, the fact that the reverse onus would be available to the Applicant at trial is a matter to be taken into account when assessing whether there is a serious question to be tried.  See Police Federation of Australia v Nixon^[14].

46. [46]
    The question for the Commission is whether, if the evidence remains as it is presently, does the Applicant have a sufficient probability of success to warrant the making of an Order.  The Third to Ninth Respondents had given thorough and detailed explanations of their reasons in voting to terminate the Applicant's employment, none of which were prohibited reasons that could be relied upon by the Applicant.  There is an express denial that prohibited reasons were taken into account and if that evidence remains as it is now the Respondents will discharge the reverse onus and the Applicant's case will fail.

47. [47]
    There was some question as to whether the Applicant's contention that she had exercised a variety of workplace rights from August 2017 that relied upon the PID Act, the Local Government Act 2009 (Qld) (LG Act) and the Crime and Corruption Act 2001 (Qld) (CC Act) fell within the definition of an industrial law within the meaning of s 284 of the IR Act.  The Applicant's contention ought not be accepted for reasons cited in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd^[15].

48. [48]
    However the Third to Ninth Respondents accepted that the correspondence to the First Respondent (dated 3 October 2017) was a complaint or enquiry in respect of her employment.  It was also conceded that the commencement of these proceedings was the exercise of a workplace right.

49. [49]
    The Third to Ninth Respondents conceded the First Respondent's conduct in terminating the Applicant's employment amounted to adverse action however the casing of one vote out of a collective does not amount to the taking of action as a vote in isolation had no legal significance.  The individual votes only obtain legal significance when other votes are cast in the same manner.

50. [50]
    It was accepted by the Third to Ninth Respondents that the First Respondent's reasons for acting in respect of the termination are to be found in the individual reasons of those persons who made up the majority of the vote.

51. [51]
    The reasons relied upon by the Third to Ninth Respondents in voting to terminate the appointment of the Applicant were contained in written submissions which documented each Respondent's concerns.  These included but not limited to:

Third Respondent (Dalley)

• demonstrated disregard for the development of functional working relationships with Councillors;

• not fully truthful to Councillors on more than one occasion;

• lacked comprehension of the way Queensland Local Government functioned;

• continuously made decisions without first consulting Council; and

• publically undermined her (Dalley's) professional ability.

Fourth Respondent (Lutton):

• perceived personal alignment with certain Councillors driving division amongst the Councillors;

• directing staff to refer to him as Councillor Lutton without consultation;

• disregarding request for information on legal advice sending information instead about counselling;

• disregard of Councillor's views on Committee seating arrangements;

• refusal to share information with Councillors in breach of the LG Act;

• failure to display budgetary or financial skills; and

• believed the Applicant had orchestrated the service of the Crime and Corruption Commission (CCC) warrants in a manner designed to cause the most embarrassment to those Councillors served.

Fifth Respondent (Swenson)

• perceived alignment with Councillors Power, Koranski and McIntosh by attending the Relay for Life event dressed in joint costume with Power;

• Applicant's alignment with these Councillors was driving division and mistrust amongst other Councillors with concerns about favourable treatment and breaches of Council confidentiality;

• Applicant had misled the Councillors about streaming reports;

• Applicant had sought to corral and oversee all information received by Councillors;

• Applicant's inclination to micromanage restricting many talented staff employed by Council from having their thoughts and ideas relayed to Councillors; and

• Applicant failed to listen or respect Councillors views on seating arrangements for Committees.

Sixth Respondent (L. Smith)

• Applicant had not shown any strategic or financial management skills;

• lack of judgement;

• overseen incorrect advice given to Councillors;

• failed to listen and respect views of Councillors;

• disregarded Councillor seating arrangements at meetings; and

• shown poor judgement by associating herself with Councillors Power and Koranski in attending the Relay for Life as part of their team.

Seventh Respondent (Pidgeon)

• no faith in Applicant's financial management abilities, not sufficiently engaged in the budgetary process;

• Applicant unwilling to work cohesively with Councillors on their vision for the City; and

• Applicant had not remained apolitical but had aligned with a number of Councillors causing division.

Eighth Respondent (Schwarz)

• Applicant had limited communication with Councillors and Council staff;

• aligned herself with Councillor Power (in costume) at the Relay for Life;

• Applicant had been unable to assist Schwarz in respect of an issue involving the Cedar Grove Waste Treatment Plant;

• Applicant filtered information received by Councillors;

• Applicant disregarded Councillor's views on seating arrangements at Committee meetings;

• Applicant failed to adequately and promptly respond to Schwarz's requests on four matters;

• poor management of Councillor complaints; and

• perception that the Applicant was unable to perform her role impartially due to her apparent preference for Councillors Raven, Power and McIntosh.

Ninth Respondent (Breene)

• Applicant was not genuinely interested in issues facing her Division;

• Applicant's inability to remain apolitical in her decision to align herself with those Councillors who openly oppose the Mayor created division and dysfunction with Council;

• Applicant's refusal to work collaboratively with, or respect the views of, Councillors;

• Applicant's "100 Day Report" failed to articulate any significant achievements or strategy for advancing Council's key objectives; and

• Applicant's performance during budgetary meetings was not satisfactory.

52. [52]
    It was apparent that each of the individual Respondents had sound, valid and understandable reasons for voting to bring the Applicant's employment to an end.  It was quite extraordinary that in the Applicant's short period of employment that each of the Third to Ninth Respondents were able to give at least one example of unsatisfactory performance which touched on their activities as Councillors.

53. [53]
    The Third to Ninth Respondents expressly deny that any of the workplace rights or the public interest disclosure were a reason for the termination.  The Third and Ninth Respondents were repeatedly warned by the CCC, the Solicitors for the Applicant and Lawyers for the First Respondent that the PID could not be taken into account when making their decision and each deposed they wanted to act consistently with that advice.

54. [54]
    The Applicant's case was entirely inferential with no objective evidence to suggest the decision to dismiss the Applicant was taken for a prescribed reason.  The Applicant's case was that the Third to Ninth Respondents:

• were allegedly politically aligned with the Second Respondent;

• changed their behaviour towards the Applicant after the PID was made;

• did not slavishly follow the Hunter Report;

• did not vote to formally exclude the Mayor from having any involvement in the interview process; and

• voted to terminate the Applicant.

These propositions have not been made out on the evidence or do not give rise to the inference which is sought to be drawn.

55. [55]
    The evidence does not demonstrate the Third or Ninth Respondents were politically aligned together with the Second Respondent or of there being any formal or informal alliance between them.  In most cases the Respondents campaigned independently from the Second Respondent and in one case the Mayor actively campaigned against one of the Respondents.  An analysis of voting patterns of the Council records that since the 2016 election of the 773 votes recorded the seven Respondents only voted together as a "block" on eight occasions.  The only evidence of an alliance is between the five Councillors who oppose the Second Respondent no matter what the issue.

56. [56]
    The Third to Ninth Respondents deny any change in the way they interacted with the Applicant after she made the PID giving evidence that many of the alleged incidents were actually incidents where the Applicant had behaved inappropriately.

57. [57]
    In terms of the Hunter Report it was unsurprising it was not followed by the Third to Ninth Respondents as it did not reflect properly their views on the Applicant's performance.  The Report was nothing more than a survey of both Councillors and employees' views about the Applicant's performance and did not involve any assessment of the Applicant's performance.  The elected Councillors chose to rely upon their own opinions when exercising their statutory duties.  Ordinarily the Hunter Report would have constituted one limited component of a broader performance review process.

58. [58]
    The non-exclusion of the Second Respondent at the probation meeting was entirely misconceived as there was legal advice as to the effect he was entitled to be interviewed by Hunter and there was no power under the LG Act to exclude him.

59. [59]
    At the time of making the decision each of the Third to Ninth Respondents gave evidence of their reasons for terminating the Applicant as:

• all had valid reasons for making the decision on performance;

• were faced with advice from the CCC, and legal advice that it would be unlawful for a decision to be made to dismiss because of alleged workplace right of the making of the PID;

• had no personal interest in the PID; and

• there was no personal gain from termination either personal or professional.

60. [60]
    The state of the evidence is that each decision maker had valid and sound reasons for dismissing the Applicant and there is no evidence to support that the Applicant was terminated for a prescribed reason.  Consequently there is no serious question to be tried for adverse action or a detriment because the Applicant had made a PID.

Conclusion

61. [61]
    On whether the Applicant had been the subject of an adverse action or detriment as a consequence of having exercised a workplace right in making a public interest disclosure against the Second Respondent the evidence before the proceedings is that on 7 February 2018 the First Respondent terminated her employment with the reliance upon the combined vote of Third to Ninth Respondents that had constituted a majority of the First Respondent Councillors at the respective LCC meeting.

62. [62]
    The Third to Ninth Respondents conceded:

"…that the First Respondent's conduct in terminating the Applicant's employment amounts to adverse action and I concur that the concession represents the factual circumstances in this application."

63. [63]
    The evidence in these proceedings if sufficient in nature to establish that the Applicant's termination by the First Respondent was an adverse action.

64. [64]
    In determining whether a prima facie case had been made for the granting of the Interlocutory Order sought by the Applicant it is prudent to follow the precedent of Beecham Group Ltd v Bristol Laboratories Pty Ltd^[16] that became the test following the inclusion in Australian Broadcasting Corporation v O'Neill^[17] which makes mention of the two main enquiries to be made in such circumstances:

"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 probability that at the trial of the action the plaintiff will be held entitled to relief…The second enquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

65. [65]
    The Applicant claimed an entitlement for relief on the basis of having suffered an adverse action and detriment as a result of having made a public interest disclosure in respect of the Second Respondent that ended with the termination of her employment by the First Respondent on 7 February 2018.

66. [66]
    The First Respondent argues that there was no realistic basis for the claims made against them and there was not a serious question to be tried with the Third to Ninth Respondents providing affidavits in the proceedings that refuted the termination of the Applicant had been for prohibited reasons.

67. [67]
    The Third to Ninth Respondents in exercising their individual votes to end the Applicant's employment were said to have done so for valid reasons which related to concerns regarding the Applicant's performance.

68. [68]
    To follow the criteria of Australian Broadcasting Corporation v O'Neill^[18] the first enquiry to be made is whether if the evidence stands, there is a probability that the Applicant would be entitled to relief.  The Applicant's case is that the termination of her employment on 7 February 2018 was for a prohibited reason by the First Respondent as a consequence the Third to Ninth Respondents having voted to terminate the Employment Agreement by the giving of two weeks' notice and subsequent payment of two weeks' salary.

69. [69]
    On the day of termination the Applicant was handed a letter of termination by the Third Respondent (signed by LCC "Employee A") acting as the CEO of the First Respondent.  The termination letter amongst other things stated:

"At a special meeting of Council convened on Wednesday 7 February 2018, Council resolved to terminate your employment agreement, pursuant to clause 2.3(b), effective immediately, with payment of two weeks of your remuneration package in lieu of notice.

As a consequence of Council's decision, you will be paid two weeks of your remuneration package in lieu of notice, plus all other benefits and entitlements accrued up to, and including, Wednesday 7 February 2018.  This payment will be paid to your back account by the close of business on Thursday 8 February 2018."

70. [70]
    The correspondence contained an absence of reference to any reasons relied upon by the First Respondent for the decision to terminate the employment and it was only upon the filing of affidavits in these proceedings by the Third to Ninth Respondents that the Applicant was informed as to the reasons embraced by those seven individual Councillors in deciding to support the termination.

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

LCC Meeting - 7 February 2018

72. [72]
    The evidence of Power in relation to this meeting was unchallenged for the purposes of the Interlocutory Order hearing and in part is documented herein as follows:

• 7 February 2018 a Special Council meeting was held for the purpose of the Council considering "Whether Council should make a decision under clause 2.3 of the employment agreement entered into between the Council and the Chief Executive Officer";

• a motion to terminate the Applicant's employment was moved by the Sixth Respondent and seconded by the Eight Respondent.  No one spoke for the motion therefore prohibiting the opportunity to speak against the motion;

• a vote to terminate the employment was resolved with seven for and five against.  The seven for the motion were the Third to Ninth Respondents; and

• the resolution carried was that of:

"1. Pursuant to clause 2.3(b) of the Chief Executive Officer Employment Agreement:

1. (a)
   The Agreement be terminated by the giving of two weeks' notice; and
2. (b)
   The Chief Executive Officer be paid two weeks of the Remuneration Package in lieu of requiring the Chief Executive Officer to serve her period of notice.

2. [LCC "Employee A"][name removed] be appointed as Acting Chief Executive Officer until further Council resolution."

73. [73]
    Power went on to evidence that no reasons for the decision to terminate the Applicant's employment were discussed during the meeting which he viewed as unusual because generally where there was disagreement on matters in relation to votes there was "some discussion regarding the outcome and why people voted as they did".

74. [74]
    Counsel for the Applicant in the course of oral submissions stated:

"Curiously, there was, on the evidence before the Commission, no debate between councillors at the time that the motion was put in favour of termination as to the pros and cons of that issue.  This is, of course, in respect of a decision that's being made in respect of an employee who is the CEO of the council, in a highly paid position, in circumstances where each of the individual respondents say that they were aware of the applicant's concerns but they may take into account a prohibited reason.  But notwithstanding all of that, there's no attempt, it would seem, by any of those people who voted in favour of termination, to have any proper robust debate between themselves and the other councillors at the relevant meeting, no attempt by them to try and persuade the other councillors who voted against the termination in favour of their view, no suggestion that they were open to persuasion to a contrary view.

One might think that if any of these seven people who voted against the termination were open to persuasion in respect of a contrary view, that there would have been some opportunity for debate but there was none.  So in the applicant's submission, the Commission ought to be troubled by this strange approach that was taken by the seven respondents who voted in favour of termination.  If their reasons were genuine, why was there no debate?  Why was there no opportunity to have a debate?  Why is the applicant told only now as to what are said to be the reasons for termination?" [Transcript p. 2-11]

75. [75]
    The motion regarding the termination of the Applicant interestingly had a second limb being that it endorsed the appointment of an acting CEO as the replacement for the Applicant in the same motion being obvious of a fait accompli in that the termination was likely to be carried by a majority.

76. [76]
    A more usual approach would have been for a replacement motion to be moved separately upon resolvement of the termination.

77. [77]
    On the matter of the appointment of an acting CEO there was evidence from the Third Respondent that on 7 February 2018 prior to the Special Council meeting to consider the Applicant's employment situation that as Acting Mayor she felt it was part of her duties that an "Interim CEO" was "prepared" if the Applicant's employment was not to be continued.  In doing so she had "not taken into account the PID, the Council Complaint, the CCC Compliant or the 176B Compliant because those documents and allegations within them had no relevance to whether or not an interim CEO would be needed, in the event that [the Applicant's] appointment was not continued".

78. [78]
    The only other evidence regarding the appointment of an acting CEO came from the Seventh Respondent who indicated that in the presence of all Councillors in a confidential meeting with the First Respondent's solicitors held prior to the full Special Council meeting on 7 February 2018.  The Seventh Respondent at paragraphs 237 and 238 of his affidavit stated:

"237. Relevantly, at this confidential meeting, Cr Dalley raised the concern that, as the Councillors were to consider two resolutions (i.e. one to confirm Ms Kelsey's appointment, the other to terminate that appointment) the Councillors should consider an appropriate acting CEO should the Second Resolution be passed by the Councillors.

238. I believed this idea to be sensible idea, because if Ms Kelsey's appointment was terminated, the Council would need to act immediately to appoint someone to the role temporarily, as under the Local Government Act 2009 (QLD), the Council must have an appointed CEO."

79. [79]
    The motion to appoint the acting CEO was absent of any debate at the Special Council meeting which on the face is somewhat unusual in that the positon had significant responsibilities pursuant to s 13(3) of the LG Act that included:

Period Preceding 7 February 2018 LCC Special Meeting

80. [80]
    In the period immediately prior the 7 February 2018 meeting there was similar or same evidence from the Third to Ninth Respondents about a series of events that occurred which were significant in terms of their conduct regarding the consideration on 7 February 2018 of the Applicant's employment.

5 February 2018 - CCC Correspondence

81. [81]
    There was correspondence in-confidence forwarded by the Chairperson of the CCC to all Councillors of the First Respondent.

82. [82]
    In the circumstances the author of the correspondence on information available to him said that it was clear all Councillors had some level of knowledge and interest in matters before the CCC and that the Council was considering the taking of some form of action in respect of the Applicant's contract of employment at a Special Council meeting to be held on 7 February 2018.  He deemed it appropriate to inform both the Council and Councillors of certain sections of the Act regarding both potential victimisation and the duty to protect those persons who had assisted the CCC in undertaking its functions.

83. [83]
    It was strongly recommended that any resolutions voted on or any motion considered should be carefully considered in light of ss 212, 343 and 344 of the CC Act.  The Councillors were further informed of protections available to public interest disclosures under s 13 of the PID Act and of offences pursuant to s 40 and 41 of the PID Act.

6 February 2018 - Minter Ellison correspondence

84. [84]
    The Third to Ninth Respondents were provided with correspondence from Minter Ellison (Applicant's solicitors) that had been forwarded to solicitors acting for the First Respondent and was interpreted by some as being a warning to all Councillors who may have voted to terminate the Applicant they would likely be joined in the claim against the First Respondent and face personal prosecution (Third Respondent).  Another interpretation of the letter was that it was Minter Ellison advocating strongly on behalf of their client (Ninth Respondent) with a fellow Councillor finding the correspondence "very threatening and confronting" (Sixth Respondent).

7 February 2018 - Legal Advice

85. [85]
    On the morning of 7 December 2018 there was a meeting of all Councillors with the exception of the Mayor attended by Counsel and Solicitors acting for the First Respondent.  The topics discussed were:

• 5 February 2018 - CCC correspondence;

• 6 February 2018 - Minter Ellison correspondence; and

• legal obligations.

86. [86]
    The evidence of the Third to Ninth Respondents was similar with little variance between their recall of the meeting in that they received legal advice to the effect:

• CCC advice to put all Councillors on notice in the strongest terms about their obligations to exclude the PID from their decision making.  The advice should not been seen to influence how a Councillor would vote, to coerce or as a threat how to vote;

• Minter Ellison correspondence should be viewed as a warning that any Councillor who voted to terminate the Applicant's employment would likely face personal prosecution by being brought into the current proceedings; and

• to lawfully make their decisions Councillors needed to exclude from their mind the PID, associated material and those proceedings.

87. [87]
    The Councillors were provided a range of material that included:

• copy of s 78 of the Criminal Code Act 1899 (Qld);

• copies of ss 212, 213, 342, 343 and 344 of the CC Act;

• copies of ss 38 to 43 and 45 of the PID Act.

88. [88]
    The Councillors were also informed they were not obligated solely to rely on or be bound by the Hunter Report but that Report was only one of the pieces to be considered.

7 February 2018 Meeting - Deliberations of Councillors - Third to Ninth Respondents

89. [89]
    The Fourth, Fifth, Seventh and Eighth Respondents gave evidence that at no time did they discuss the reasons for terminating the Applicant's employment with any of their fellow Councillors.  They also acknowledged that it was unusual for Councillors not to discuss or debate their positions prior to voting however the exposure to the possible liability of civil and criminal proceedings was of concern.

90. [90]
    The Third Respondent gave evidence of not making the decision to terminate the Applicant lightly and "…took the time to carefully consider [the Applicant's] positive and negative attributes in the role of the CEO, prior to making any final decision about the vote."

91. [91]
    The Third Respondent provided no detail about whether her timely considerations were in the course of the Special Council meeting or otherwise which was of some interest in that the total duration of the 7 February 2018 meeting was 25 minutes and the motion to terminate the employment contract was made in the absence of any debate.

92. [92]
    The Sixth Respondent gave no evidence of any discussion with fellow Councillors prior to voting on the motion to terminate the Applicant's employment but felt he had been the subject of threat by Minter Ellison and a "stern warning" from the CCC but was as a sitting Councillor obligated to vote even at the risk of reprisal.

93. [93]
    The Ninth Respondent gave no evidence of having discussed with fellow Councillors her voting intentions but maintained she had never considered the Applicant suitable for the CEO role from the time of her interview for the position.

94. [94]
    The meeting of 7 February 2018 called especially for the purpose of making a decision in respect of the employment of the Applicant raises more questions than answers in respect of the failure of Councillors to firstly enter into any level of debate in support of the motion before Council thus preventing any debate from Councillors that may have opposed to motion.  Secondly the failure to facilitate debate about whether the most senior employee at the LCC should be terminated or otherwise had the effect of those voting in support of the proposition being shielded from having to indicate the reasoning for their individual support of the proposition.

95. [95]
    The Third to Ninth Respondents, with the benefit of legal advice given on 7 February 2018, collectively adopted the position of departing from the usual practice of consultation, or discussion prior to voting on a motion and further not exercising the option of open debate before voting to terminate the Applicant's employment contract.  This collective action was primarily in my view taken so as not to expose the individual Councillors to allegations that in effecting the termination they had taken into account the PID, material or those proceedings.

96. [96]
    The evidence of the Third to Ninth Respondents does not address the period from 1 December 2017 when the Applicant lodged the first application with the Industrial Registrar seeking an Interim Order preventing the First Respondent from considering or voting upon any resolution in respect of the Applicant's employment up until 5 February 2018 when the CCC forwarded correspondence to the Councillors informing of the potential for victimisation and of the duty to protect those persons who assist the CCC in undertaking their functions.

97. [97]
    In this time period the following Order was handed down by Industrial Commissioner Fisher:

"Pursuant to s 51 of the Public Interest Disclosure Act 2010 and s 314 of the Industrial Relations Act 2016 the Second Respondent is take no part in any resolution by the First Respondent in respect of the Applicant's employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent, until the hearing and determination of this proceeding."

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

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

Reasons for Termination

100. [100]
     In respect of an employment contract terminated within a prescribed probationary period the giving of any reason was not generally required with it being sufficient that the applicable notice period and appropriate payment being met.  It is only when it is alleged that the reason for termination related to a prohibited reason such as an adverse action or a detriment and in this case connected directly to a public interest disclosure that a respondent not only has to advance reasons but are required to do so in an environment where they are subject to a reverse onus of proof (at the substantive hearing).

101. [101]
     The Third to Ninth Respondents in evidence before the proceeding provided reasons relied upon to effect the termination of the Applicant's employment, none which had previously been the subject of disclosure.

102. [102]
     It is necessary to at least consider in the course of whether an interlocutory relief is granted or otherwise the veracity of their evidence particularly as how it may be viewed at trial.

103. [103]
     In the matter of Police Federation of Australia v Nixon^[19] Ryan J turned his mind to the issue of presumption regarding the absence of any evidence from the respondent.  In doing so he found that account could be taken when assessing the strengths of the case of an applicant and a respondent:

"However, I do not construe s 809(2) as preventing the Court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application.  Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief."

104. [104]
     Therefore based on the decision of Ryan J it would seem that this was a useful precedent in regards to an examination of the Third to Ninth Respondent's evidence and how that may stand at trial.

105. [105]
     The evidence of the Third to Ninth Respondents of a complete lack of dialogue between the seven Councillors prior to voting to terminate did not prevent there being a number of identical reasons being relied upon by those Councillors in the decision making process of terminating the Applicant's employment.  These included the following.

Relay for Life - October 2017

106. [106]
     The Applicant and Councillor Power attended a community fundraiser for cancer, dressed as characters from the Brothers Grimm's Hansel and Gretel.  The seven Respondents held the view that the Applicant's actions of doing so had amongst other things:

• called into question the unity and integrity of the LCC;

• failed to act apolitical; and

• displayed intentional favouritism to a Councillor who had recently called for the resignation of the Mayor.

107. [107]
     In the course of oral submissions on behalf of the Third to Ninth Respondents it was stated:

"So one of the more prominent concerns that appears in all of the affidavits is the applicant's conduct in appearing at the Relay For Life charity event in costume with Councillor Power.  Now, this is in the context where Councillor Power has publicly described himself as the leader of the opposition.  This is not just any councillor.  This is the person who has publicly stated that he is in opposition to the mayor and it would appear to anyone else at the Council.  For obvious reasons, the CEO of a local government needs to remain apolitical, but that requirement can only be heightened in circumstances where one of the councillors sets himself apart and describes himself as the leader of the opposition. 

There's another question of this conduct as well.  The provenance of the characters that they went dressed as can't be ignored either.  The photos which are LS1 to Mr Smith's affidavit are consistent with what all of the witnesses agree.  They went dressed as Hansel and Gretel.  Hansel and Gretel is a historical tale from the Grimm brothers about a brother and sister who are set upon by a witch, at which point Hansel is imprisoned by the witch and Gretel is pressed into servitude in favour of the witch.  Ultimately, Gretel kills the witch and rescues her brother and returns him to freedom.  As a political allegory, it's not particularly subtle, and it appeared a few months after Councillor Power had staged the stunt of walking out of the Council chambers with tape across his mouth.  It shows astoundingly bad judgment, in my submission.  And it is a thing that the councillors would be properly upset about and be properly disturbed about." [Transcript pp. 2-41 to 2‑42]

Council Committee Structure - October/November 2017

108. [108]
     The Council had unanimously voted to make amendments to the Committee's structure and requested that the Applicant draft a report to meet the requirements of the Council decision.

109. [109]
     The Applicant subsequently ignored the views of the Council and went about preparing a document that reflected a completely different structure which lead all Respondents, with the exception of the Fifth Respondent, to hold views:

• Applicant failed to respect and appreciate views of Councillors;

• inability of Applicant to act collaboratively with Councillors; and

• had a desire to personally influence all functions of Council.

110. [110]
     The Applicant had been directed to rewrite the report to reflect the position of the Councillors but had not done so (Fourth Respondent).

Committee Seating - January 2018

111. [111]
     The Applicant had advised that she would be amending the seating arrangements at Committee meetings so she could occupy a seat next to the Committee Chairperson.  With the exception of the Fourth and Ninth Respondents, the Respondents held the view that the Applicant:

• lacked appreciation for the need to delegate and allow Directors to perform duties that they were appointed for;

• had a complete lack of respect for Councillors views and was unwilling to consider the opinion of others; and

• was ignorant of operational needs of Council.

Lack if Impartiality

112. [112]
     All of the relevant Respondents, with the exception of the Third Respondent, had expressed collective concerns around the Applicant's relationship towards Councillors Raven, Power, Bradley, Koranski and McIntosh in that there was a perception of the Applicant favouring a group of Councillors.  There concerns included:

• attendance at the Relay for Life event;

• winking at Councillors Raven and McIntosh in Council meetings; and

• perceived forewarning given to Councillors other that the Third to Ninth Respondents of events and information.

Service of CCC warrants - January 2018

113. [113]
     A number of warrants were served upon Councillors at a Council meeting with the Fourth, Fifth, Seventh, Eighth and Ninth Respondents holding the Applicant responsible for the method of service in that:

• the warrants could have been served at a different time or Councillors could have been requested to leave the meeting;

• no thought for the personal reputation of the Councillors or Council;

• caused significant embarrassment to the Councillors served; and

• the Applicant appeared to be smiling which led to concerns it was done intentionally to humiliate.

Acceptable Request Guideline - November 2017

114. [114]
     There were proposed guideline changes to govern how the Mayor and Councillors would interact with staff.  The Applicant's involvement in the process had resulted in her giving advice that no legal advice had been sought and it was later discovered that legal advice had been obtained and recommendations made by her were not considered best practice.  The Respondents, with the exception of the Seventh Respondent, held views that:

• the Applicant had provided information that was materially deficient and incorrect;

• Councillors had lost confidence in the ability to rely on her advice;

• poor leadership had been demonstrated by the Applicant; and

• they were perplexed how the Applicant was not aware legal advice had been obtained without her knowledge.

Lack of Financial Management Skills and Strategic Vision

115. [115]
     The Third to Ninth Respondents, with the exception of the Seventh Respondent, had relied on the following concerns to support their reasoning for voting to end the Applicant's employment with the LCC:

• Applicant's priorities and interests appeared to lie in the civic and community elements of the Council's operations rather than prioritising Council's financial future;

• Applicant's "100 Day Report" did not contain references to the Council's budget, financial position or strategic direction for future and prioritised minor issues; and

• Applicant had performed poorly in budget meetings appearing to be distracted and disengaged.

The Hunter Report

116. [116]
     Rachel Hunter (Hunter) was engaged by the LCC to conduct a 360 degree probationary review of the Applicant that was approved by the Council on Friday 10 November 2017.  The probationary review commenced on 13 November 2017 and consisted of twenty‑five interviews with persons that included:

• Mayor;

• Councillors;

• Executive staff; and

• Managers (including the former Acting CEO).

A time period of 45 minutes was allocated for each interview.  The final Report was due for submission on 4 December 2017.

117. [117]
     The evidence of Power in his affidavit [Exhibit 4] was that the Mayor had proposed that the Local Government Association of Queensland (LGAQ) be appointed as a representative of the LCC to interface between Hunter and the Council during the probationary process.  A number of Councillors including Power, Raven, Bradley, Koranski and McIntosh stated concerns about the appointment of the LGAQ as they "could not be considered appropriately impartial or non-biased as a result of the LGAQ's close relationship with the Council and in particular the Mayor".  As a result of these concerns it was not agreed at the meeting that the LGAQ would become involved.

118. [118]
     In advance of the next Council meeting the issue was overtaken with a Mayoral Executive Order signed by the Mayor and the Third to Ninth Respondents agreeing to engage Peak Services to assist with the Applicant's probationary process.  Peak Services was owned by the LGAQ.  The "advance vote" could only have been facilitated by the Mayor or someone aligned to him.

119. [119]
     Although the Mayoral Executive Order was signed by the Third to Ninth Respondents on 1 November 2017 it was not formally adopted until 30 January 2018 which was contrary to the usual practice of being adopted at the next meeting on 8 November 2017 or at a later meeting on 5 December 2017.  Power had concerns the failure to do so was the intentional withholding of information.

120. [120]
     On 29 November 2017 a meeting of Council discussed the draft Hunter Report with the Mayor (according to Power) critical of the Report about how the findings were made and some of the processes relied upon by Hunter.  In the course of the meeting Hunter was brought in by telephone at which time Power alleges the Mayor interrogated her about the methods in creating the Report.  There was no evidence that any of the other Councillors took the opportunity to raise issues regarding the draft Report.

121. [121]
     Hunter conducted the process against a range of some eight criteria and in the Report (dated 4 December 2017) included the following commentary under a heading of "Conclusion":

"All interviewees were provided an opportunity to make any closing comments.  Some Councillors focussed on the strong community presence the CEO had made, others spoke of her people focus and the positive impact that was having on the organisation.  Some Councillors reiterated concerns that the CEO needed to develop her political nous, continue to build her relationship with the Mayor, and ensure that any future changes were based on greater levels of consultation with Council.

Almost to a person, Council officers were highly supportive of the CEO and her leadership.  They were looking to her to focus more on strategy and service improvement into the future, understanding that the first four and a half months of her term had been heavily invested in getting to know the organisation's people and the community they serve."

122. [122]
     The relevant ratings applied to each of the criteria would tend (in my view) to reflect that the Applicant's performance in her role as the CEO were mainly those of:

• "good" - consistently achieves required competency and behaviour; and

• "fair" - does not achieve some of the required competency and behaviour.

123. [123]
     Overall it would be reasonable to conclude that her performance was "middle of the road" without being outstanding and unsatisfactory in respect of matters relating to risk management.

124. [124]
     In oral submissions Counsel for the First Respondent said of the Hunter Report:

"…to the extent that something a lot has been said about the Hunter report, can I just briefly say about that, because that is – that has been erected as a centrepiece of the applicant's case, that it was, when you read it, effectively a collection of interviews of no binding effect whatsoever, and when one reads it, it is utterly unexaminable as to the – the number of persons who made the various representations, and it did not contain a summary of the submissions and representations that were made to her, which were then – the effect of which is summarised after the actual submissions are listed.  It was a, some councillors said this, and some councillors said that, and a number of employees said this, but another number of employees said that.  It's absolutely unexaminable.  You would – one would – one would never, in the circumstances, rely on that, a report of that kind, as being anything other than a – in effect, a public opinion survey on a 360‑degree basis around the CEO to give the council a flavour of the sorts of attitudes that were being expressed." [Transcript p. 2-74]

125. [125]
     Counsel went on further to state:

"All of the councillors were required to look a little wider than that report.  If that's the only information they had, fair enough, then they can look at that and say, well, this tells me that this is what other people are saying, but they, as councillors, have a responsibility to observe and to research and to listen, and to ask questions themselves around the council, and not be bound by a – a consultant who came in, conducted a range of 45-minute interviews and left again.  The councillors have got an obligation to use their own experience when they cast their vote, and that's not abandoning the report, that's simply saying, well, we've looked at that report, that was very interesting, but it's not going to – it can't control my opinion and it won't, and that's effectively all they said, and that's not an abandonment.  That's using it for the pur – only purpose for which it could be used in the circumstances.  So, this notion that the Hunter report was somehow or other a binding document that people refused to be bound by once they had it and they didn't like it, with all due respect, is a complete fiction." [Transcript p. 2-75]

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

Political Divide/Voting Patterns

127. [127]
     The Applicant to some extent makes the assertion that the LCC Mayor and the Third to Ninth Respondents are involved in an alliance of sorts that would explain why they (excluding the Mayor) voted as a block to terminate the Applicant's employment however the evidence certainly does not support a conclusion that a formal alliance of that nature exists.  There was evidence of LCC voting outcomes since the election of the Council in 2016 that does not support an assertion that the abovementioned group voted in a block as one might expect from a body for example that had been elected along party lines.  The Applicant in affidavit material [Exhibit 3] on the issue of and interfacing between the Second Respondent and the Third to Ninth Respondents stated:

"4. I consider that Timothy Luke Smith (the Mayor) and Councillors Cherie Dalley, Russell Lutton, Stephen Swenson, Laurence Smith, Philip Pidgeon, Trevina Schwarz and Jennifer Breene (the 7 Councillors) are affiliated with each other because of my observations of their interactions while I filled the role of CEO and because of comments that had been made to me during my role, which included:

1. (a)
   in the week after I commenced work with LCC on 27 June 2017, the Mayor stated to me on at least two occasions during meetings to the effect that whatever he needed approved by the Council, he could have approved because 'I've got the 7 councillors' and 'whatever I need to get up I can get up'."

128. [128]
     The Councillors are from a range of backgrounds that includes the membership or former membership of political parties and persons with no such previous involvement who are required from time to time to collectively engage for purposes of having motions passed by Council.  The LCC in that respect is likely to be similar to most local authorities in the Queensland landscape.

129. [129]
     The Third and Ninth Respondents have denied either collectively or individually being in any formal alliance with the Mayor.  In respect of the 2016 Council election the following evidence was contained in their affidavits tendered in the proceedings:

130. [130]
     If, as argued by the Third to Ninth Respondents that the attendance by the Applicant at the Relay for Life event, a community fundraiser for cancer, was perceived as her being aligned with Councillor Power and other Councillors in attendance (but not from the Third to Ninth Respondents group) it would be a "double standard" not to accept that a perception may exist of a form of an alliance, however marginal, between the Third, Fifth, Sixth, Eighth and Ninth Respondents and the Mayor based on their own evidence in respect of the 2016 Council election.

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

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

133. [133]
     The considerations in relation to adverse action have the same applicability to that of detriment as a reprisal pursuant to the provisions of the PID Act.

134. [134]
     I find that the Applicant had made a prima facie case in that there was a serious question to be tried in that the First and Third to Ninth Respondents had taken adverse and/or reprisal action against her in contravention of both the IR Act and the PID Act, that warrants the granting of an interlocutory injunction pursuant to ss 40 and 48 of the PID Act and ss 285, 314 and 473 of the IR Act.

Balance of Convenience

135. [135]
     On finding that the Applicant had met the test for the granting of an Interlocutory Order it is necessary to make a second enquiry as to whether the inconvenience or injury which the Applicant is likely to suffer if the injunction was refused outweighs the injury the Respondent would suffer if the injunction was granted.  See Australian Broadcasting Corporation v O'Neill^[20].

Applicant

136. [136]
     The Applicant took issue with the assertion of the Second Respondent that the general legal rules that have been applied to employment contracts in connection with injunctive relief are important and apply in the present case to the conclusion that reinstatement ought to be refused.  In this case the application is not reliant on any alleged breach of contract rather reliant upon statutory protections contained in the PID Act and the IR Act.  The "rule" relied upon by the Second Respondent is not inflexible and needs to be considered in light of the circumstances of each case.  See C.H. Giles & Co v Morris^[21] and Turner v Australasian Coal and Shale Employees Federation^[22].

137. [137]
     If an Order is made to reinstate the Applicant it would be that the effect of the reinstatement would lead to the possible evasion of the Order which would make the Order impracticable.  That is not the circumstance that exists here and if the Applicant was to be reinstated, compliance would be achieved by the return to her employment.  The fact that difficulties are possible in the future does not prevent compliance with an Order.

138. [138]
     The Second Respondent's reliance on statutory reinstatement cases about the loss of trust and confidence having broken down to the extent it is not appropriate to Order reinstatement involves a detailed consideration of whether in the employment relationship there is sufficient trust to make the relationship viable and productive.  See Perkins v Grace Worldwide^[23].  A tribunal must also be careful to ensure that problems of the employer's own making are not relied upon to ground a finding of loss of trust and confidence.  Evidence of management personnel no longer being able to work with an employee because of trust may be insufficient to find a basis to refuse reinstatement.  See Australia Meat Holdings Pty Ltd v McLaughlin^[24].  The matter of Downe v Sydney West Area Health Service (No. 2)^[25] dealt with future cooperation to perform work was impossible or whether reinstatement would make it possible to achieve a sufficient level of cooperation.

139. [139]
     Applying the authorities to the present case it is plain that future cooperation to perform work is not impossible to achieve a proper working relationship.

140. [140]
     Federal Court of Australia cases in respect of Interlocutory Orders seeking reinstatement take into account a range of circumstances in determining whether such an Order is appropriate or not in a particular case.  The authorities cited were:

• Jones v Queensland Tertiary Admissions Centre Limited^[26];

• Maritime Union of Australia v DP World Melbourne Limited^[27];

• Burnett v Eastern Health^[28];

• United Voice v GEO Group Australia Pty Ltd^[29]; and

• Mastromanno v Temando Pty Ltd^[30].

Applicant's performance of her daily duties would not result in ineffective governance

141. [141]
     The CEO role is generally responsible for the downward management of Council Officers, Directors and staff involving interactions with those employees and it is the case that the Hunter Report evidences that Council staff interviewed were consistently satisfied with her performance.  There was no evidence that the Applicant could no longer continue to work with Council Officers and Directors meeting expectations of those persons.

142. [142]
     Considerable support had been forthcoming for the Applicant from Council employees and feedback to the Local Government Team of the Australian Services Union (ASU) supported her reinstatement.

143. [143]
     The Applicant and Councillors acknowledge they do not have day-to-day interactions with each other and the Third to Ninth Respondent's affidavit material confirms interactions with Councillors are generally limited to formal meetings.  The Sixth Respondent acknowledged that:

"In my experience as a Councillor, Councillors (myself included) will go directly to the Council Officer or Director responsible for a department or stream if they wish to receive information relating to that department or stream…I will never go to the CEO as first point of contact."

144. [144]
     The interactions with the Applicant and Councillors often have other persons in attendance and therefore the dealings are typically limited matters of a formal nature.  The Applicant was willing to agree to a protocol that incorporates any reasonable adaptions to the process if this would assist the Councillors.

Concerns against the Applicant do not evidence an unworkable relationship

145. [145]
     The performance concerns raised in the affidavits of the Third to Ninth Respondents have largely taken the Applicant by surprise having not been communicated previously save for some limited feedback.  Many of the concerns raised in the affidavits were repetitions of the same issue and at worst reflect the kind of issues of style, approach and level of communication that often arises in the early stages of an employment relationship which can be ordinarily resolved by discussion.  Importantly there is no allegation of misconduct against the Applicant.

146. [146]
     To the extent the Second Respondent is concerned about the effects of the 1 February 2018 Commission Order, it is open to him to delegate his powers in respect of the CEO under s 12(5) of the LG Act.

147. [147]
     The Sixth Respondent attests he would have confirmed the Applicant's employment by extending her probation until the end of June 2018.

148. [148]
     The fact that the Applicant has made serious allegations ought not be relied upon to deprive the Applicant of an Interlocutory Order for reinstatement.  That would thwart the very remedy the Commission was empowered to grant in cases alleging reprisal or adverse action.

Councillors have responsibilities in the exercise of their duties as Councillors

149. [149]
     The parties are bound by legislative obligations under the LG Act that includes s 12(1), s 12(3) and s 13(3).

150. [150]
     The Applicant is a person who strictly follows legal procedure and requirements notwithstanding the pressures that brings and would continue to fulfil her role as CEO in compliance with obligations under the LG Act.

Reinstatement or Reimbursement is not a financial risk to ratepayers

151. [151]
     The Applicant repeats her previous offer to provide an undertaking as to damages.  That undertaking is offered notwithstanding that there is no requirement on the Commission to request an undertaking as to damages before granting an injunction.

152. [152]
     The Commission ought to not be satisfied that reinstatement of the Applicant would render ineffective the operations of the Council.

Applicant has support of other Councillors

153. [153]
     Five Councillors each supported the continued employment of the Applicant and did so on 7 February 2018.  On the same date the Sixth Respondent was willing to extend the probationary period until the end of June 2018 so that at least six Councillors at that time envisaged a workable continuing employment relationship.

Council's Resilience

154. [154]
     In oral submissions Counsel on behalf of the Applicant stated:

"It's also relevant to note that this Council, it would seem, is already, in terms of its operations, a rather resilient entity in the fact that, as one can see from the evidence of Councillor Power, it's a council that's presided over by a person who is the subject of criminal charges, but, yet, who's soon to return to recommence acting as the Mayor.  So this would seem to be a body of people who, despite events occurring that are out of the usual functioning of council, have an expectation of being able to function.  In those circumstances, the Commission needs to, in my respectful submission, be very sceptical about the suggestions that are being made that they wouldn't be able to work productively in a professional way with Ms Kelsey were she to be reinstated." [Transcript p. 2-26]

Terms of Contract

155. [155]
     The Interlocutory Order sought would not deprive the Respondents of any ability to act under clause 10.1(c)(ii) of the Employment Contract given that Order at paragraph 5.2 merely orders reinstatement.  The employer would retain all of its rights and obligations into the future and the Applicant would be content for this to be explicitly stated in any Orders.

No undertakings from Respondents to pay remuneration

156. [156]
     Relevant to the balance of convenience is the fact the Respondents oppose payment of remuneration pending the hearing and determination of the application.

Disposition

157. [157]
     The Interim Order sought at paragraph 5.2 of the Further Amended Application ought to be granted.

First Respondent

158. [158]
     The assessment of the balance of convenience must take into account the prospects of the Applicant succeeding in obtaining substantive relief.  It would be counterintuitive and wrong to make an Order in interim proceedings which create a circumstance which is unlikely to be confirmed in the substantive hearing.

159. [159]
     The First Respondent exists for the purposes of ensuring the Order and good government of the Council area with its funds being all public funds contributed by ratepayers and other tiers of government and has no profit or other component to its activities and no private beneficiary of its activities.

160. [160]
     The First Respondent is required to exercise appropriate levels of accountability in expending public funds and they should only be spent in respect of matters which are properly directed towards the order and good government of the LCC.

161. [161]
     It would be inconceivable for the Commission to consider granting an Interim Order without very clear and persuasive evidence establishing an entitlement in that regard, that the Applicant be reinstalled into the position of CEO at LCC.  The Applicant is currently engaged in litigation at a personal level against eight of twelve Councillors including the Mayor.

162. [162]
     It would be to stretch human nature to an impermissible level to simply waive away the personal implications of the Applicant's proceedings by reference to behaving "professionally" in the discharge of their duties when each of the Second to Ninth Respondents have been the subject of serious and potentially career-ending allegations as "having engaged in what is effectively a criminal conspiracy and corrupt conduct to deprive the Applicant of her employment" contrary to legislation and flagrantly defying warnings provided to them by the Chairperson of the CCC and Counsel and Solicitors acting for the First Respondent immediately prior to making the decision to terminate the employment of the Applicant.  It would be naive to suggest that the Respondents will not suffer serious political harm to their careers, even if they are wholly successful in defending the claims.

163. [163]
     The Third to Ninth Respondents had provided substantial and credible evidence of their lack of trust and faith in the ability of the CEO to perform her job and of their belief in the level of her competence to continue for the contracted term or part thereof.

164. [164]
     It is not fanciful to suggest that the business of the Council so far as it is required to be supervised and administered by Councillors, Chairs of Committees and others who are interacting with the CEO, will cease to function in any effective way.  The damage that may be done to not only the First Respondent but to the interests of ratepayers that could be significant, vastly in excess of any damage or inconvenience suffered by the Applicant because her contract was terminated in accordance with an agreed term of the contract.

165. [165]
     The Applicant had no reasonable expectation of anything more than a maximum of six months' service under the employment contract which period has already passed.  There was no definite fixed term contract of a number of fixed years.

166. [166]
     The Applicant cannot be ordered to be reinstated and to do so would cause serious harm to Council operations.

167. [167]
     For the same reasons it is not appropriate to Order that the wages which are otherwise said to be payable to the Applicant and backpay be reinstated in circumstances where she performs no work for that salary.  This would be an extraordinary expenditure of public monies in the circumstances and there is nothing about the Applicant's present circumstances that cannot be remedied by an appropriate award of compensation in money terms in the event she succeeds in any of her claims at a final hearing.

168. [168]
     The Applicant is apparently receiving financial support from a website convened by a recently unsuccessful Mayoral candidate which raises questions about the Applicant's political alignment and whether she could remain apolitical having accepted support from political opponents of the Second Respondent.

169. [169]
     The Applicant has little or no prospects of being able to repay a sum approach $500,000 if she was an unsuccessful applicant which would expose the ratepayers of LCC to an unjustified expense.

170. [170]
     The balance of convenience is this matter is very firmly against any Interim Order being made and it is inconceivable that the Applicant could return to a workplace which she has levelled serious allegations against a majority of Councillors who are responsible for her work and in circumstances where they had made a number of serious allegations about her competency to perform the work which she now seeks to be reinstated.

Second Respondent

171. [171]
     The balance of convenience is against the interim relief sought by the Applicant principally because the Second Respondent has a statutory obligation to manage and direct the CEO but if the Applicant was reinstated then for all practical purposes he will not be able to take any action which might lead to a further reprisal (and submits that any negative action on his part could be characterised as such).  Reinstatement has the real potential to expose the Second Respondent to further serious allegations ultimately prevent the ability to criticise the Applicant or take issue with her performance despite the statutory mandate that requires him to do that if necessary.  An interim working relationship (pending determination of these proceedings) is unworkable and undesirable.

Reasons that the Applicant ought not be reinstated in the interim

172. [172]
     The factors relied upon by the Applicant to justify the interim reinstatement were not relevant to reinstatement but only to the question of whether there should be remuneration from the First Respondent to the Applicant in the interim.

173. [173]
     There had been reference to the statutory regime that governs the operation of the First Respondent, setting out obligations upon the Second Respondent and all other Councillors which were of critical importance.

174. [174]
     Section 12 of the LG Act sets out the legislative responsibilities placed upon the Mayor and Councillors and in particular at s 12(4) of the LG Act the Second Respondent is mandated as being responsible for:

• Managing the conduct of meetings of the First Respondent;

• leading, managing and providing strategic direction to the CEO (which was the Applicant) in order to achieve the high quality administration of the First Respondent;

• directing the CEO in accordance with the First Respondent's policies; and

• conducting a performance appraisal of the CEO, at least annually, in a way that is decided by the First Respondent.

175. [175]
     On reinstatement the Second Respondent would have obligations in relation to the CEO that includes managing performance and the conduct of a performance appraisal which would be practically impossible for him to do so given the allegations made against him.  Any conduct, act or omission which the Applicant perceives as critical or negative towards her may be construed as a reprisal or adverse action which could also be applicable to Councillors.

176. [176]
     This risks that reinstatement would expose the Second Respondent such that on the balance of convenience is against an Order and it was preferable that the Applicant not be reinstated pending the hearing with the question of reinstatement left for the final determination at the final hearing.

177. [177]
     There was no particular prejudice to the Applicant if she was not reinstated as her position had already been terminated by the First Respondent (with the Second Respondent not voting) with any impact of that act already sustained.

178. [178]
     There were many alleged instances of prejudice made by the Applicant but none of them specifically related to whether or not she is paid.  The Second Respondent is not the Applicant's employer and the relief she seeks (about payment) does not directly affect him.

179. [179]
     Different considerations intrude into the issue of reinstatement as it involves (in part) consideration of re-establishing personal relationships in circumstances where trust and confidence had broken down.  The Applicant clearly has had at least some loss of confidence in the Second Respondent given the allegations she had made against him.

180. [180]
     The Applicant had not addressed the nature of the employment contract and the general legal rules that have been applied to such relationships in connection with injunctive relief.  The rules are important given the unique statutory mandate on the Second Respondent and support a conclusion that reinstatement ought to be refused.

181. [181]
     The general rule is that Courts and Tribunals will not, save in exceptional circumstances, order performance of a contract of personal service.  See Byrne v Australian Airlines Ltd^[31].  The authorities demonstrate that whilst it is no longer the case that there is an automatic refusal of such mandatory injunctive relief in employment relationships it has long been the policy of the common law to be prepared to refuse to grant an injunction to retrain an alleged breach of contract of employment save, in more modern times, in very special circumstances because it might amount to an order for specific performance requiring the continuation of a personal relationship against the will of one of the parties because of loss of confidence and because of the need for ongoing supervision.  See Whitwood Chemical Co v Hardman^[32], Turner v Australasian Coal and Shale Employees Federation^[33], Gregory v Philip Morris Ltd^[34] and Bostik (Australia) Pty Ltd v Gorgevski (No. 1)^[35].

182. [182]
     The cases, in any event, establish that if the relationship of trust and confidence in a relationship of employment (including the relationship between the Second Respondent and the Applicant) had broken down then it is not appropriate to Order reinstatement.  See Perkins v Grace Worldwide^[36], Australia Meat Holdings Pty Ltd v McLaughlin^[37] and Downe v Sydney West Area Health Service (No. 2)^[38].

183. [183]
     Notwithstanding the Applicant had submitted a willingness to undertake a mediation and was willing to work with the Second Respondent it is an irresistible inference and conclusion that any perceived negative criticism or treatment in the future will also be alleged to have reached certain conclusions as to the Applicant's competency.  It cannot safely be stated that the relationship between the Applicant and the Second Respondent in future would be free of tension or pressure with the nature of the allegations made and the events referred to in the Applicant's own evidence suggests to the contrary.

184. [184]
     The usual rules about not forcing performance of a personal employment relationship were even more apt where the Second and Third to Ninth Respondents are democratically elected officers with a statutory mandate and the Applicant is an employee.  The Applicant has no such mandate and her reinstatement may have the effect of overriding the democratic process by which Councillors were elected and empowered to govern.

185. [185]
     The Second Respondent was still the subject of ongoing Orders made on 1 February 2018 which were very wide and it may be that any negative feedback or criticism and indeed any consultation between Councillors and the Second Respondent might constitute "indirect involvement" in the "development or provision of information" for any resolution concerning the Applicant's employment whether or not it has any relationship to this proceeding or not.  The reinstatement would expose the Second Respondent to significant risk of a breach of this Order if he carries out his statutory responsibility to manage the employment of the CEO.

186. [186]
     Tendered in the proceedings was the affidavit of the Applicant [Exhibit 1] which was said to give an evidentiary foundation for the concerns raised by the Second Respondent.  These included evidence contained at paragraph 189 and 191 of the affidavit:

"189. I believe this is a reference to an incident that relates specifically to the Mayor, in particular my refusal to release a media release about conduct that was properly attributable to the Mayor arising from Operation Belcarra, as outline above at 100(d).  I believe that the Mayor provided this feedback as it is also a matter that the Mayor sought to raise with me during the first feedback process.  As outlined above, I considered it would be inappropriate for the release proposed by the Mayor to be issued on behalf of the LCC and his draft dealt not primarily with the LCC's administration but rather with the findings and commentary relevant to the Mayor's conduct.

…

191. Given the above matters, I believe that the Mayor is determined to take whatever steps are available to him to terminate my employment at the end of the extension agreed to regarding my probation.  I believe he is determined to do this irrespective of the outcome of the Probation Review report (which was a positive report).  I believe he plans to do this as a retaliation against me for the matters referred to in the PID and the making of the PID itself."

187. [187]
     In the circumstances it was not appropriate to Order the Applicant be reinstated as CEO pending the hearing of this matter.  The determination on any reinstatement can be decided upon in the final resolution of this matter.  Reinstatement of the Applicant has a potential significant detriment to the Second Respondent while there is no disadvantage or prejudice if the Applicant was not reinstated.

Third to Ninth Respondents

188. [188]
     The question of balance of convenience is not to be considered in a vacuum.  See Samsung Electronics Co. Limited v Apple Inc^[39]. Consideration must be taken into account of the strength of the serious question to be tried and in this case the Third to Ninth Respondents submit there is no serious question to be tried and if that is accepted there is no basis for the granting of interlocutory relief.  If the Third to Ninth Respondents primary submission is not accepted the Commission could not be satisfied that any serious question was a strong one.  In those circumstances the balance factors would have to be substantiated in order to outweigh the weakness in the Applicant's case.

189. [189]
     The Applicant had a short period of service and in that time had not demonstrated a substantial capacity to perform her role or where she would have some genuine expectation that her role would continue.  The Commission based on the short period of employment is not in a position to objectively assess whether the Applicant was capable of performing her role satisfactorily.  The Commission ought to hold grave fears regarding her capacity based on the concerns raised by the Third to Ninth Respondents about her suitability for the role.

190. [190]
     The Applicant's employment was terminable on the giving of six months' notice of payment in lieu and in those circumstances had no guaranteed tenure or expectation that she would remain in the role for the duration of the term.  It was the case that if she survived past her probationary period she simply became entitled to a greater period of notice.  That is damage that can be adequately addressed by an Order for compensation.

191. [191]
     The third factor against the claim for interlocutory relief is that the Applicant as CEO would be required to work with the Second to Ninth Respondents which would be untenable when she is in a process of advancing legal proceedings against eight out of twelve members of Council which alleged they engaged in unlawful conduct and seeking imposition of pecuniary penalties against them personally.

192. [192]
     The obvious difficulties between the Applicant and the Respondents to this proceeding need to be considered in light of the nature of the First Respondent.  The detriment of Councillors being unable to work with the CEO would be felt by ratepayers and those who depend upon the services provided by the First Respondent.

193. [193]
     There is a strong public interest argument against the Order being sought by the Applicant.

194. [194]
     In the unlikely circumstances the Applicant was to be ultimately successful the appropriate final Order would be one for compensation.  Reinstatement would not be an appropriate outcome as a final Order because of irreparable damage done to the relationship between the Councillors and the Applicant.

195. [195]
     The Interlocutory Order should be refused on both the merits of the matter and on discretionary grounds.

Conclusion

196. [196]
     In determining whether the balance of convenience favours the granting of the relief sought in the Further Amended Application "that the Applicant be reinstated or alternatively that the First Respondent recommence paying the Applicant's normal salary (including backpay to the date of dismissal) until the hearing and determination of the matter".  I would firstly address the point raised by the Second Respondent in relation to the general rule adopted by Courts and Tribunals that only in exceptional circumstances would an interim interlocutory injunction be granted that allowed for the reinstatement of an employee regarding an alleged breach of contract.

197. [197]
     In this particular case the Applicant alleges that her employment was terminated by the First Respondent as a consequence of having made a public interest disclosure in respect of the Second Respondent on or around 12 October 2017 and the termination had the effect of causing an adverse action/detriment and was in fact a reprisal against her for the PID.

198. [198]
     The Applicant had lodged an application with the Industrial Registry on 1 December 2017 in which interim relief was sought in the following terms:

"1. An interim order pursuant to section 54 of the PID Act and 314 of the IR Act that the First Respondent must not consider or vote upon any resolution in respect of the Applicant's employment, whether pursuant to a probationary process or otherwise, until the hearing and determination of this proceeding.

2. An order pursuant to section 51 of the PID Act and section 314 of the IR Act that the Second Respondent take no part in any resolution in respect of the Applicant's employment or have an involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent."

199. [199]
     The Applicant had two months prior to her termination on 7 February 2018 raised for the first time concerns regarding a potential reprisal under the PID Act and the possible breach of the adverse action provisions of the IR Act.

200. [200]
     There were proceedings before Industrial Commissioner Fisher which resulted in the Applicant being partially successful in respect of interim relief with an Order issued on 1 February 2018 which stated:

"Pursuant to s 51 of the Public Interest Disclosure Act 2010 and s 314 of the Industrial Relations Act 2016 the Second Respondent is take no part in any resolution by the First Respondent in respect of the Applicant's employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent, until the hearing and determination of this proceeding."

201. [201]
     In the course of these proceedings I have made a finding that a prima facie case had been made by the Applicant for the granting of an Interlocutory Order on the basis there was a serious question to be tried.  The Applicant's employment had not, according to the evidence before the proceedings, been terminated for reasons of misconduct and reasons relating to alleged performance issues were only made known to the Applicant upon the filing of affidavits by the Third to Ninth Respondents on or around 12 April 2018.

202. [202]
     In addressing the balance of convenience in respect of the "rule" relied upon by the Second Respondent I do so on the consideration of the Applicant having made a prima facie case regarding adverse action/detriment in respect of her termination rather than her employment being terminated for a breach of contract, on the basis that persons are entitled to certain legislative protections when making public interest disclosures that would reasonably differentiate between a termination for a prohibited reason as opposed to one for contractual reasons.

203. [203]
     The Applicant in her affidavit [Exhibit 3] provided evidence of the impact of the termination of employment upon the aspect of her financial circumstances.  In terms of finances the Applicant, as the primary income provider for her family, had not received any income since her termination.  The Applicant owned two properties (both mortgaged) and whilst presently both mortgages were up-to-date with some limited advance payments she was in the process of selling once of the properties which would allow her husband to relocate or the proceeds could be allocated to fund this litigation.

204. [204]
     The Applicant provided extensive detail in respect of her financial "outgoings" which in my view are quite considerable particularly when presented in circumstances where there are no "incomings".  The Applicant had made enquiries about the ability to obtain assistance through some form of insurance cover however such enquiries had not met with success.

205. [205]
     The Applicant described her current financial circumstances in blunt terms at paragraphs 103 and 104 of the affidavit in the following terms:

"103. The loss of my income has placed my family's finances under strain, particularly given my ongoing personal and family financial commitments and the need for me to pay my legal fees in this litigation.  I am concerned about my ongoing capacity in the absence of an income to fund my living expenses and to fund this litigation.

104. The strain placed on my family's finances has added to the stress and anxiety my family have experienced as a result of my dismissal.  This is a very difficult time for me and my family.  There are significant financial and personal pressures that are having a negative impact on how me and my family function.  This includes our mental wellbeing."

206. [206]
     The only financial assistance in the offering for the Applicant was potentially from a "Go Fund Me" website established voluntarily by a third person to assist in the payment of her legal fees.

207. [207]
     The refusal to grant the injunction would undoubtedly have a significant impact on the Applicant in respect of her financial situation which on the evidence could best be described as "dire" and without prospects of her circumstances changing in the immediate future.

208. [208]
     The First, Second and Third to Ninth Respondents argued that any inconvenience or injury likely to be suffered by the Applicant if the injunction was not granted outweighs the injury they would be exposed to should the injunction be granted.  I have considered the grounds relied upon the Respondents in the following terms.

Expenditure of Public Funds

209. [209]
     The First Respondent raised concerns regarding the purposes for which public funds could be expended and that they properly be directed towards the order and good government of the LCC.

210. [210]
     I accept the premise upon which ratepayers' monies ought to be expended as advanced by the First Respondent and I would be unlikely to favourably consider, the option to that of reinstatement, contained at clause 5.2 of the Further Amended Applicant whereby the First Respondent be ordered to pay the Applicant's normal salary without the requirement to undertake the role of CEO, effectively being paid by public funds whilst not presenting for work.

211. [211]
     I am aware that in certain circumstances Governments of all persuasions make decisions to suspend employees from duties on full pay and as elected representatives are entitled to make such decisions if they hold the view that this action would be in the best interest of the organisation however for the Commission to make such a decision would be at best, unusual.

Litigation involving the Applicant and the Respondents

212. [212]
     It was said to be inconceivable for the Commission to grant an interim injunction to reinstate the Applicant when she was currently engaged in litigation against eight of the twelve Councillors including the Mayor.

213. [213]
     One should turn their mind to the litigation in question and the reasons why such litigation was actioned in the first place.  The Applicant's employment was terminated at the hands of the First Respondent following the carriage of a resolution to that effect at a Special Meeting of Council held on 7 February 2018.  The Third to Ninth Respondents voted to terminate the employment.

214. [214]
     The Applicant subsequently initiated proceedings based upon a claim that she was a recipient of adverse action/reprisal as a consequence of having made a public interest disclosure against the Second Respondent with that identified action being in contravention of the IR Act and the PID Act.

215. [215]
     The Applicant in her previous role as the CEO at LCC had a right and obligation to instigate a public interest disclosure in the manner she had if she held reasonable suspicions in respect of the Second Respondent's conduct in public office.  In her affidavit of evidence the Third Respondent [Exhibit 8] stated the following at paragraph 78:

"My attitude and opinion of Ms Kelsey did not change as a result of Minter Ellison making the PID, as Ms Kelsey had a right and obligation to make the disclosure, and thereafter it was up to the CCC to investigate and, if substantiated, take appropriate action."

216. [216]
     The litigation in question had its origin in respect of the alleged conduct of the Respondents in respect of the Applicant's employment and therefore in all probabilities to rely on the litigation to prevent the granting of the interim injunction sought under the circumstances is not accepted on its own as a reason not to grant the relief.

217. [217]
     Further in respect of the Councillors involved in the litigation there is evidence to the effect that they had never had regular "day-to-day" contact with the Applicant in any event and should an Interim Order of reinstatement be made by the Commission the contact between the Applicant and Councillors would be likely limited to formal proceedings such as Council and Committee meetings.

Lack of Trust and Confidence

218. [218]
     The Third to Ninth Respondents gave evidence regarding a lack of trust and faith in the ability of the Applicant to carry out the role of CEO in a competent manner however the reasons relied upon should be balanced against the content of the Hunter Report that found staff participants interviewed in the formulation of the Report were supportive of the manner in which the Applicant had performed whilst in the CEO role.

219. [219]
     In an affidavit [Exhibit 5] tendered in the proceedings on behalf of Jones, the Lead Organiser with the Local Government Team of the ASU, there was evidence of his attendance at a Union meeting where "members were outraged that someone [Kelsey] they held in such high regard had been treated in such a manner."

220. [220]
     He was later informed by the Organiser for the area, Union delegates and members that amongst other things:

"Sharon [Kelsey] had made a positive impact at Council and had visibly raised the morale and the tone of the workforce that having to return to a state of affairs that is anything than what existed under Sharon [Kelsey] is making people apprehensive."

221. [221]
     The Applicant maintained in the proceedings that she had support of five Councillors which was not the subject of challenge.

222. [222]
     The breakdown in trust and confidence in respect of the Applicant is (unsurprisingly) confined to those Respondents subject to litigation in these proceedings and there was no evidence that such a view had wider traction across the organisation.

Exposure to the Second Respondent should reinstatement be granted

223. [223]
     The Second Respondent expressed concerns regarding interaction with the Applicant if she was to be reinstated and in particular the possible exposure to further allegations of reprisal action in respect of his conduct in carrying out the mandatory functions of his role under the LG Act and also the potential to be in breach of an Order previously issued by Industrial Commissioner Fisher in the proceedings.

224. [224]
     In relation to the potential exposure to further allegations of reprisal action, if the Interim Injunction was granted to reinstate the Applicant there can be no guarantee in regards to those concerns only the expectation that both the Second Respondent and the Applicant would conduct themselves to a standard of conduct and behaviour that would behove persons of their professional standing in the re-establishment of a workable employment relationship.

225. [225]
     The Applicant in her affidavit [Exhibit 3] gave evidence regarding future conduct in the workplace should she be reinstated:

226. [226]
     In respect of Industrial Commissioner Fisher's Order of 1 February 2018 I concede the argument advanced on behalf of the Second Respondent of potential impact on him in respect of undertaking his duties and if an Interim Injunction was to be granted in respect of reinstatement, the appropriate course would be to vacate the said Order in that circumstance.

Applicant's Criticism of the Second Respondent

227. [227]
     The Second Respondent made reference to evidence contained in the Applicant's affidavit [Exhibit1] that was critical of the Second Respondent as a reason why it would be impracticable to grant an Interim Injunction ordering the reinstatement of the Applicant to her previous role.

228. [228]
     On examination of the evidence at paragraph 191 of the affidavit it does confirm that the Applicant (at 12 January 2018) believed the Mayor was determined to have her removed from her employment and had expressed a view in the most forthright of terms.

229. [229]
     As mentioned earlier if reinstatement was to be ordered by way of an Interim Order the Applicant and Second Respondent would be bound to use their best endeavours to make the work relationship successful.

Third to Ninth Respondent's inability to work with the Applicant

230. [230]
     The majority of these Respondents indicated in their affidavits of evidence they could no longer work with the Applicant if she was to be reinstated due to a lack of trust and confidence.

231. [231]
     Whilst they are entitled to hold such views that in itself is not sufficient reason to prevent the Commission from exercising its legislative power pursuant to the relevant legislation.

232. [232]
     Councillors also have an obligation as elected representatives of Council to undertake their duties in the best interest of the Council and their Constituents and if that requires a level of interaction with the Applicant if she was to be reinstated then one would expect for the benefit of those they serve such an arrangement could be accommodated by all parties.

233. [233]
     Upon consideration of submissions provided by both the Applicant and the First, Second and Third to Ninth Respondents I have formed the view that the Applicant's circumstances and in particular her "dire" financial position would favour the balance of convenience being exercised in her favour in the granting of the interlocutory Interim Order for reinstatement to the role of CEO at the LCC and that any likely injury to the Respondents emanating from that decision would not be of a nature to support rejection of the application.

234. [234]
     The establishment of a prima facie case by the Applicant that there was a serious case to be tried in regards to adverse and/or reprisal action having been taken against her in contravention of the IR Act and the PID Act supports the finding of exercising the balance of convenience in her favour.

235. [235]
     Also weighted in favour of the balance of convenience being applied positively to the Applicant was the timeliness of a decision being released following the hearing of the substantive application.  The matter has been scheduled for hearing commencing on 30 July 2018 initially for eight days with a further day allocated on 14 August 2018 should it be required.  The complexity of the application, the voluminous amount of material for consideration and a somewhat heavy work schedule of the Commission would make it extremely unlikely that the decision would be available until December 2018 or thereabouts.

236. [236]
     For the purposes of the record I must address the submission of Counsel for the Applicant in respect of the resilience of the First Respondent regarding the Mayor being the subject of criminal charges, was soon to return to work and that a body of people who despite that situation had an expectation of Council being able to function and yet they would not be able to work with the Applicant in a productive and professional way if she was reinstated, should be viewed sceptically.  With all due respect to Counsel whilst that submission might satisfy what is colloquially described as the "pub test" I have not considered such submission in my deliberations for reasons of relevance or lack thereof.

Findings

237. [237]
     For reasons enunciated in the body of this decision it is my intention to grant the Interim Order for the reinstatement of the Applicant to her former position on the terms and conditions contained in the Employment Contract that were applicable at 7 February 2018 (termination date).

238. [238]
     I do not propose to grant relief in relation to a claim for backpay or other benefits relating to the Applicant's period of unemployment and if that is to be addressed it should be done so in the determination of the substantive matter.  The same consideration applies in respect of other relief sought in the Further Amended Application.

239. [239]
     A further Order will be issued vacating an Order issued by Industrial Commissioner Fisher on 1 February 2018 for reasons given at paragraph 226 of this Decision.

Order