Kelsey v Logan City Council and Another
[2018] QIRC 9
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- Unreported Judgment
- Kelsey v Logan City Council and Another[2018] QIRC 9
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Kelsey v Logan City Council and Another[2018] QIRC 9
Kelsey v Logan City Council and Another[2018] QIRC 9
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kelsey v Logan City Council and Another [2018] QIRC 009 |
PARTIES: | Kelsey, Sharon (Applicant) v Logan City Council (First Respondent) and Smith, Timothy Luke (Second Respondent) |
CASE NO: | PID/2017/3 |
PROCEEDING: | Application for interim orders |
DELIVERED ON: | 1 February 2018 |
HEARING DATE: | 25 January 2018 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: |
|
CATCHWORDS: | PUBLIC INTEREST DISCLOSURE - INTERIM ORDERS - INTERLOCUTORY INJUNCTIONS - where applicant made a public interest disclosure - where allegations of misconduct by second respondent - where ongoing adverse interventions of second respondent in matters relating to applicant's employment - where potential termination of applicant's employment by first respondent at the instigation of second respondent - where allegations against one member of council and not any other councillors - whether prima facie case established - whether balance of convenience favours granting of the relief INDUSTRIAL RELATIONS - INTERIM ORDERS - INTERLOCUTORY INJUNCTIONS - where applicant has exercised a workplace right - whether conduct breach of adverse action provisions |
LEGISLATION: CASES: | Public Interest Disclosure Act 2010, s 48, s 51 Industrial Relations Act 2016, s 285, s 314, s 473 Local Government Act 2009, s 12, s 176B Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 MIM Holdings Limited and The Australian Workers' Union of Employees, Queensland and Another (2000) 164 QGIG 296 |
APPEARANCES: | Mr C. Murdoch, QC instructed by Minter Ellison Lawyers for the Applicant. Mr A. Herbert, Counsel instructed by King & Company Solicitors for the First Respondent. Mr M. Trim, Counsel instructed by Gadens Lawyers for the Second Respondent. |
Decision
- [1]The Applicant seeks the following interim orders:
"1. An interim order pursuant to section 51 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 (except in relation to a positive vote confirming her employment), whether pursuant to a probationary process or otherwise, until the hearing and determination of this proceeding.
1A. An interim 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 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."
- [2]Section 51 of the Public Interest Disclosure Act 2010 (PID Act) provides that the Industrial Commission may grant an injunction, in terms it considers appropriate, if it is satisfied that a person has engaged, is engaging or is proposing to engage, in conduct amounting to:
- (a)a reprisal; or
- (b)attempting a reprisal; or
- (c)aiding, abetting counselling or procuring a reprisal; or
- (d)inducing or attempting to induce, whether by threats, promises or otherwise, a reprisal; or
- (e)being in any way directly or indirectly, knowingly concerned in, or party to, a reprisal.
- [3]The relevant conduct complained of is:
- (i)the ongoing adverse interventions of the Second Respondent in matters relating to the Applicant's employment; and
- (ii)the potential termination of the Applicant's employment by the First Respondent at the instigation of the Second Respondent.
- [4]The Applicant also contends that the conduct is in breach of, and would amount to a breach of, the adverse action provisions of s 285 of the Industrial Relations Act 2016 (IR Act).
Background
- [5]The Applicant made a public interest disclosure (PID) on 12 October 2017 by providing correspondence to the Second Respondent and other Councillors of the First Respondent (the Council complaint) and to the Crime and Misconduct Commission (the CCC Referral). The Applicant also provided correspondence alleging misconduct under s 176B of the Local Government Act 2009 (LG Act) by the Second Respondent to the Director-General of the Department of Infrastructure, Local Government and Planning (the 176B Complaint). The s 176B complaint was referred to the CCC by the Director‑General. The Applicant understands the CCC is investigating the PID.
- [6]The Applicant submits that each of the complaints and the referral are also an exercise of a workplace right for the purposes of the adverse action provisions of the IR Act as it was an exercise of a workplace right to make a complaint or inquiry about the Applicant's employment.
- [7]The PID outlines the reasonable suspicion of corrupt conduct of, or maladministration by, the Second Respondent. The Applicant alleges that the conduct appears to have been engaged in by the Second Respondent for two purposes, one of which concerns the management of the Applicant's employment (including the probation review process), to cause detriment to the Applicant.
- [8]Omitted by Decision of 27 February 2018.
- [9]Because the PID was made, the First Respondent engaged an external consultant to undertake the Applicant's probationary review. The Applicant alleges that despite the First Respondent providing an assurance that the Second Respondent's involvement in the external review would be as an interviewee, the Second Respondent engaged in numerous and continuing acts that are both to the Applicant's detriment and adverse action.
- [10]The Applicant contends that the conduct and the evidence support a conclusion that the detrimental conduct/adverse action is occurring because (or for reasons that include the fact that) the Applicant made a PID and in doing so exercised a workplace right. Given the Second Respondent's continued involvement in the Applicant's probation process, despite assurances to the contrary, the Applicant is concerned that detriment/adverse action in the form of termination of employment is threatened or may occur because:
- (i)the Applicant's probation ends on 30 January 2018 and has not been extended; and
- (ii)the respondents are in possession of the external consultant's probation review report, which, the Applicant contends, is overwhelmingly favourable to the Applicant. Despite this, there has been no indication that the Applicant's employment will be confirmed.
- [11]Interim orders are sought to protect the Applicant's position pending the hearing and determination of the substantive application.
- [12]At the hearing on 25 January, the parties agreed that the Applicant's probationary period would be extended to 9 February. This would allow time for the Commission to release its decision on this application this week as indicated, and, depending on the outcome, for a special meeting of the First Respondent to be held the following week.
- [13]The interim orders are opposed by both the First and Second Respondents. Towards the commencement of the proceedings on 25 January, the Second Respondent offered an undertaking that he will not vote on any resolution concerning the Applicant's employment until after the determination or finalisation of the proceeding and that he will, without further comment, excuse himself from any council meeting and leave the room if the Applicant's employment is raised, until the determination of this proceeding. This undertaking was not accepted by the Applicant.
- [14]The reasons the Applicant formed views about the conduct of the Second Respondent are set out in the Applicant's affidavit filed for these interlocutory proceedings. An affidavit was filed by the Second Respondent and, for the First Respondent, by another Councillor. The Applicant filed an affidavit in reply. The affidavits have been read and considered by me in making my decision, however, because of the sensitivity of these proceedings, their contents are not referenced in any detail in this decision save to explain my reasoning.
- [15]The sensitivity of the matters involved, including the matters set out in paragraph [5], has caused the parties to be anonymised in this decision. This approach was discussed with the parties who advised their consent.
Interlocutory Injunction - Applicable Principles
- [16]The parties agree that in an application for an interlocutory injunction there are two main inquiries to be undertaken:
- (i)the first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; and
- (ii)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.[1]
Overview of Parties' Submissions
Prima facie case
- [17]The Applicant's application for interim orders is directed to the Second Respondent's alleged continuing involvement in the Applicant's probationary review despite the First Respondent's assurances as to the nature and extent of the Second Respondent's participation. The Applicant considers that the First Respondent's advice that the only role to be played by the Second Respondent was to be interviewed by the external consultant did not wholly manage the risk of reprisal but went some way to mitigate it. However, the Applicant contends the Second Respondent has continued to be involved and this involvement is evidenced by conduct that is described as:
- (i)the Meeting Chair Conduct: where the Second Respondent has chaired a meeting of Councillors at which the coordinator and facilitator of the probationary process were present;
- (ii)the Feedback Conduct: where the Second Respondent proposed other persons with whom the Second Respondent has been closely involved to be interviewed and despite one of them no longer being an employee of the First Respondent; and
- (iii)the Additional Process: which concerns the Second Respondent writing to the Applicant about a certain matter, of which the Applicant had no knowledge and where the Applicant considers the correspondence to be akin to a show cause process.
- [18]The Amended Application included a fourth conduct issue, however, this matter was not pressed at the hearing and is not considered by me.
- [19]In addition, the Applicant contends that the external consultant's report contains feedback from "some Councillors", the source of which is the Second Respondent.
- [20]The Applicant's affidavit also cites two instances where she was advised by others of actions being taken by the Second Respondent which appear to be adverse to her.
- [21]The Applicant contends that these actions, if ultimately established, will amount to conduct that is to the detriment of the Applicant and adverse action against the Applicant.
- [22]In the Applicant's submission, the Second Respondent has failed to deny much of the conduct the Applicant has asserted he has engaged in. Accordingly, the Commission should draw the inference that the Second Respondent has continued to be engaged in the probationary review process, seeks to influence it and the participants in it, and that the intention of the Second Respondent is to bring the Applicant's employment to an end.
- [23]The Applicant advised that the undertaking given by the Second Respondent falls short of what is required to protect the Applicant's interests. The order sought against the Second Respondent is wider than the undertaking given which leaves the Second Respondent able to speak to other Councillors, make recommendations to them and seek to persuade them as to how they might vote. Order 1A was cast in wide terms to ensure the Second Respondent would be restrained from these activities which might be detrimental to the Applicant's ongoing employment.
- [24]The First Respondent submits that the whole focus of the application is against the Second Respondent because of the PID. But the PID did not concern any conduct of other Councillors. Further, no PID has been made against any of the other 12 Councillors. Because of that, there is no reason for any of them to engage in reprisal conduct against the Applicant. Alternatively, the Applicant has not produced any evidence showing that any other member of the elected body has a reason to retaliate.
- [25]The First Respondent acknowledges it is a body corporate but it is the elected members of the body corporate who the Applicant seeks to restrain. It is the Councillors who must make a decision by way of resolution by a majority in a properly constituted meeting in order to come to a decision as to what the Council wishes to occur with the employment contract.
- [26]The First Respondent rejects any suggestion by the Applicant that it is harbouring an undisclosed collective or majority intention to act adversely to the interests of the Applicant by seeking to comply with the terms of the contract. Further, the remaining Councillors are not bound by the actions of the First Respondent but are bound to exercise their votes in the council chamber according to their conscience. Whether or not a Councillor considers the report of the external consultant in reaching their decision is a matter for that Councillor.
- [27]The Second Respondent contends that the Applicant has not made out a prima facie case and is unlikely to succeed at trial because the Applicant has not established any causal connection between the PID, the s 176B complaint and the conduct beyond their temporal sequence (even accepting the evidence). Although the assessment of whether a prima facie case exists does not involve the determination of the issues, it requires close consideration of the evidence. The Applicant's case against the Second Respondent is largely guilt by association, silence and inference. Further, the affidavit filed by the Applicant contains assertions and hearsay, all of which is insufficient to restrain the Second Respondent from performing the duties required under the LG Act.
- [28]The responsibilities of the Second Respondent are prescribed by the LG Act and include the types of the matters about which the Applicant complains. In that context, the Second Respondent contends that there is nothing extraordinary or unreasonable about the Meeting Chair Conduct, the Feedback Conduct and the Additional Process. The Additional Process concerned a request for information from the Applicant and the correspondence discloses that the request was being made by Councillors, not just the Second Respondent. It was improbable this request was capable of amounting to detrimental conduct because the Applicant made the PID or s 176B complaint.
- [29]The Second Respondent also contends that the relief sought is broad and imprecise. It seeks to both prevent the Second Respondent from taking part in resolutions of the Council in relation to the Applicant's employment and to prevent the Second Respondent from having any involvement, direct or indirect, in the development or provision of information for any such resolution. The Second Respondent submits that the effect of the interim order would be to remove the Second Respondent's input for the duration of the Applicant's employment, long after any present issues have subsided and contrary to s 12 of the LG Act. The Second Respondent submits that the true purpose of the application is to secure a longer period of notice for the Applicant upon the conclusion of the probationary employment under the provisions of clause 10 of the Employment Agreement.
- [30]Other reasons the Second Respondent submits that a prima facie case is not made out and the Applicant is unlikely to succeed at trial are:
- (i)there is no actual or impending detriment to the Applicant as there is no evidence of the likely resolution to be passed by the Council and in any event the Second Respondent only has one vote among many; and
- (ii)the external consultant's probationary report is, on balance, favourable to the Applicant, yet the Applicant contends there is an objective likelihood that the First Respondent will disregard it. The Second Respondent submits this contention is without foundation and highly speculative.
Balance of convenience
- [31]The Applicant argues that damages are not an appropriate remedy were the employment to be terminated before a final hearing for a range of reasons including issues concerning her relocation from interstate and reputational damage.
- [32]The Applicant also contends that because of the content of the external consultant's probationary report, there will be no damage by the continuation of the Applicant's employment pending the hearing and determination of the application. The Applicant has indicated a willingness to participate in mediation with the Second Respondent. Further, the external consultant's probationary report does not reveal any poor relationships between the Applicant and the other Councillors and the Applicant's relationship with employees of the First Respondent is overwhelmingly positive.
- [33]The First Respondent contends that the balance of convenience is against the order being made. The Employment Agreement is made between the Applicant and the First Respondent and each of the parties has a right to bring the probationary period to an end. Only the First Respondent, which is comprised of the Councillors, can make that decision in a properly constituted forum. The First Respondent argues that the first order sought by the Applicant, whilst being against the First Respondent, is, in effect against each one of the elected Councillors so that they cannot meet together to decide the issue in accordance with the Employment Agreement. There is no legal mechanism consistent with the proper conduct of local government business by which the First Respondent could indicate the likely outcome of the vote before it is held.
- [34]Irrespective of whether the Second Respondent is restrained or voluntarily excuses himself from the decision making process, the First Respondent submits that the Commission could not and should not restrain it from making a decision because one of their number may have behaved improperly in relation to their input into the decision making process. If the decision is not made by the remaining Councillors then the decision will remain unmade indefinitely which will cause uncertainty and strain relationships in circumstances where the majority of Councillors and/or the Second Respondent may not wish the Applicant to remain in employment. All the First Respondent is seeking to do is to take advantage of a clause in the Employment Agreement which is an exercise of power given to it by the Applicant. An adverse result is a risk the Applicant was prepared to take when the Employment Agreement was signed.
- [35]The First Respondent is unable to delegate the decision about the Applicant's employment to anyone else or another body. It is the body charged with that responsibility and the Councillors who comprise that body should not be constrained from making a decision in accordance with the Employment Agreement and in light of their responsibilities under the LG Act.
- [36]The Second Respondent advances two principal arguments that the balance of convenience does not favour the Applicant. Firstly, the relief sought is an overbroad interference in the Second Respondent's statutory duties and secondly, it ignores the Applicant's contract of employment.
- [37]In relation to the second argument, the Second Respondent notes the Applicant's Employment Agreement, which in addition to the probation period term, includes another term which allows for termination of employment for poor performance or on six months' notice without cause. At best, these proceedings can establish the Applicant's right to the longer notice period which accrues on the expiry of the probationary period. That is a right, which if improperly lost, can more than be adequately compensated by an award of damages.
- [38]The Applicant noted that while she signed the Employment Agreement which includes the probation clause, no agreement was given to unlawful conduct being taken in respect of that clause.
Consideration
- [39]To grant an interim injunction the Commission must be satisfied that the Applicant has established a prima facie case and the balance of convenience favours the granting of the relief. Gummow and Hayne JJ described the meaning of the phrase, "prima facie case" in this way:
"By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial... With reference to the first inquiry, the Court continued…
'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.' "[2]
- [40]The Commission's traditional approach to interim orders was explained by Hall P who said in MIM Holdings Limited and The Australian Workers' Union of Employees, Queensland:
"The Commission has traditionally, and should be, loath to make interim or interlocutory orders on the basis of part heard cases where no final view has been formed as to the facts or the law."[3]
- [41]The Commission is not required to make findings of fact in relation to the PID, the allegations or counter claims but there must be some evidentiary basis for the grant of the interim order.
- [42]Because there are two respondents to this application with a separate order being sought against each of them, the case against each one is considered individually.
Should an interim order be made against the First Respondent?
- [43]The First Respondent submits that the whole of the Applicant's case is about the conduct of the Second Respondent. However, the Applicant contends that the actions of the Second Respondent have been taken in the Second Respondent's role in the First Respondent's employment and on behalf of the First Respondent. The First Respondent was thus knowingly concerned in the actions of the Second Respondent. In addition, the Applicant submits that there will be no work for any final order requiring the Second Respondent to be removed from involvement in any resolution considering the Applicant's employment on the grounds that the Second Respondent engaged in reprisal conduct if she has been dismissed in the interim because the interim order against the First Respondent was not made. For these reasons, the Applicant seeks interim orders against both respondents in order to protect the Applicant's position pending the hearing and determination of this matter.
- [44]The difficulty for the Applicant is that there is nothing in the PID or the s 176B complaint that suggests that other Councillors have been engaged in or intend to engage in reprisal conduct. And, it is conduct about which s 51 of the PID Act is concerned. While the Applicant asserts the relevant conduct is the potential termination of the Applicant's employment by the First Respondent at the instigation of the Second Respondent, there is no foundation for that assertion. At its highest, the Applicant's evidence for this assertion is that the external consultant's reference to views expressed by "some Councillors" could only be derived from the Second Respondent.
- [45]I also note that the Applicant states that the Second Respondent met with two other Councillors and the coordinator/facilitator of the probationary review process. I accept this was outside of the involvement the Second Respondent was supposed to have in the probationary review process but the Applicant does not advance its case in respect of the First Respondent with reference to this event. In those circumstances I am not prepared to consider it further.
- [46]The case for the Applicant against the First Respondent is directed more towards the balance of convenience inquiry. Because of this, I shall consider the arguments in respect of this issue.
- [47]The First Respondent is a corporate entity comprised of elected Councillors. A decision about the future of the Applicant's employment can only be made by the Councillors collectively, acting as the employer of the Applicant. The Commission accepts the submissions made by the First Respondent that it should not be restrained from making a decision because one of their number may have acted improperly. As noted above, there is no evidence that other Councillors may have also acted improperly. Moreover, a decision of the Council would be an exercise of the clause in the Employment Contract.
- [48]I accept that to not restrain the First Respondent might have detrimental consequences for the Applicant and this detriment may not be able to be remedied by damages. However, the Applicant has legal avenues that are able to be pursued if her fears are realised.
- [49]I consider there are two insurmountable obstacles confronting the Applicant in respect of gaining interim orders against the First Respondent. The Applicant is required to positively establish both the prima facie case inquiry and the balance of convenience inquiry. The Applicant has not made out a prima facie case against the First Respondent because of the absence of evidence that other Councillors have or will engage in reprisal conduct or adverse action in respect of the Applicant's employment. In these circumstances the First Respondent should be permitted to make a decision as the employer of the Applicant and in accordance with the terms of the Employment Agreement.
- [50]The second reason is the terms of the proposed interim order are not practical and workable. It requires the Councillors to not consider or vote upon any resolution in respect of the Applicant's employment, except in relation to a positive vote to confirm the Applicant's employment. As the First Respondent submitted, whether or not there is a positive vote is dependent on the Councillors meeting in a properly constituted forum to consider and vote on a resolution. It is not tenable to hold a straw poll or conduct some other test to draw out the voting intentions of the Councillors prior to a properly constituted meeting of Councillors being held. Only a properly constituted meeting can determine the issue.
- [51]The application for an interim order against the First Respondent is refused.
Does the Applicant have a prima facie case against the Second Respondent?
- [52]Despite the skill with which Counsel for the Second Respondent argued that interim orders should not be made against his client, I am not persuaded. I accept that some aspects of the Applicant's evidence are based on hearsay and that the Second Respondent denies making the comments attributed to him seeking information about the Applicant. Even disregarding these issues for the reasons given by the Second Respondent, and despite filing an affidavit, the Second Respondent did not respond to the Applicant's allegations in respect of the Meeting Chair conduct or the Feedback conduct.
- [53]Counsel for the Second Respondent noted the limited time between the Second Respondent's return from overseas and the date for filing an affidavit. I do not accept this as a reason to not respond to some allegations. Certainly, the Applicant's affidavit is lengthy, but much of it repeats the allegations contained in the Applicant's PID and were not new to the Second Respondent. The conduct issues raised after the notifying of the PID were new but only comprised a small portion of the affidavit. The failure of the Second Respondent to respond to the allegations of continuing conduct after the PID and s 176B complaint were lodged is disturbing when they were the main focus of the Applicant's case for an interim order against the Second Respondent.
- [54]Further, in respect to the Meeting Chair conduct, I do not accept the submissions that no safe inference can be drawn that the meeting concerned the Applicant's employment. If it was about something unrelated to the Applicant, then the Second Respondent could have easily said so in his affidavit. The meeting involved the person who had been specifically appointed from outside the First Respondent to coordinate and facilitate the Applicant's probationary process. The probability is low of it being about anything other than the Applicant's probationary process and by implication, the Applicant's employment. I consider an inference can be drawn that the Second Respondent was acting outside the process as agreed between the First Respondent and the Applicant.
- [55]The Feedback conduct concerns an allegation that the external coordinator/facilitator nominated people to be interviewed by the external consultant. This was in the context of the external coordinator/facilitator having met with the Second Respondent and two other Councillors and the Second Respondent having separately spoken to the external coordinator/facilitator. The Applicant could be wrong in the conclusions set out in the affidavit, but again the Second Respondent does not address, or more particularly, deny, the matters set out and the conclusions drawn. Serious allegations have been made against the Second Respondent which have not been countered. Again, I consider an inference can be drawn that the Second Respondent was acting outside the process as agreed between the First Respondent and the Applicant.
- [56]The third conduct issue concerns the Additional Process. It is clear in the correspondence that the Second Respondent's email advised that the request had come from "a significant majority of the Councillor team". The Applicant complains the email was written in an accusatory tone when the Applicant was unaware of the particular matter about which advice was sought. Further, it was written despite the external review process being undertaken. Having considered the content of the email, I am of the view that the request for information was directive and provided little time for the Applicant to prepare a response. However, the Applicant and the Second Respondent were required, by the nature of their respective positions, to continue to deal with issues of concern to the First Respondent and other Councillors. I consider the Additional Process should be seen in this context. I am not satisfied that the evidence around this issue allows me to safely draw an inference that the Second Respondent was engaging in conduct that was outside the agreed probationary process at this time.
- [57]The final conduct issue concerns the allegation that the Second Respondent was the source of criticism made by other Councillors which is recorded in the external consultant's report. I also note that while the Second Respondent claimed he was unaware of information provided by other Councillors to the external consultant, no denial was made that he was the source.
- [58]Of more concern is that the Second Respondent has not denied that any action taken has been because of the PID or the s 176B complaint being made.
- [59]A process was agreed by the Applicant and the First Respondent in respect of the review of the Applicant's probation. The role of the Second Respondent was limited to being interviewed by the external consultant. For the reasons given, I have reached the view that there is a prima facie case that the Second Respondent did not confine himself to this but engaged in conduct outside of the agreed process in relation to the Applicant's probation which may be likely to cause a detriment to her.
Does the balance of convenience favour the grant of the interim order against the Second Respondent?
- [60]Having decided not to make the First Respondent the subject of the interim order sought, the question is whether the Second Respondent should be restrained from participating in and influencing that process.
- [61]I note the undertaking given by the Second Respondent which would limit the involvement of the Second Respondent in the First Respondent's consideration of the Applicant's employment. Like the Applicant, I do not consider that the undertaking is sufficient given the issues at stake and the prima facie case which has been made about the Second Respondent's conduct to date.
- [62]I accept the Second Respondent has statutory obligations with respect to the Applicant's employment but the Second Respondent's omission in not denying being involved in some of the impugned conduct, gives me no comfort that the Second Respondent will seek to act lawfully and appropriately in relation to the Applicant's employment. Although the Second Respondent may be denied the opportunity to exercise his statutory responsibilities if the interim order is issued, the potential for detriment to be caused to the Applicant were the Second Respondent involved outweighs any injury which the Second Respondent might suffer from being excluded.
- [63]The Second Respondent is concerned about the breadth and effect if the interim injunction is granted, that is, that it would remove the Second Respondent's input for the duration of the Applicant's employment. I do not accept that submission. The interim order is directed to the Second Respondent not being involved in or influencing the resolution or decision of the First Respondent in respect of the continuation or otherwise of the Applicant's employment.
- [64]The Council proposes to meet and consider her employment prior to 9 February. The outcome of the process is in the hands of those Councillors participating. There were indications that the Applicant's employment will be considered under the probationary clause and clause 10 of the Employment Agreement. In my view, it is not unreasonable that the Second Respondent be prevented from engaging in any process concerning the continuation or otherwise of the Applicant's employment for the reasons given in this decision. An interim order will be made.
- [65]I have considered whether the order should operate until the First Respondent met and resolved the issue whether that be next week or some later time. However, out of an abundance of caution I have decided to grant the interim order as sought by the Applicant.
Orders
- The application for an interim order against the First Respondent is refused.
- Pursuant to s 51 of the Public Interest Disclosure Act 2010 and s 314 of the Industrial Relations Act 2016 the Second Respondent is to 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.
Footnotes
[1] Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57, [65], Gummow and Hayne JJ quoting Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 (Kitto, Taylor, Menzies and Owen JJ).
[2] Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57, [65].
[3] MIM Holdings Limited and The Australian Workers' Union of Employees, Queensland and Another (2000) 164 QGIG 296.