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Pereira v State of Queensland (Department of Health, Queensland Ambulance Service) & Anor QIRC 136
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Pereira v State of Queensland (Department of Health, Queensland Ambulance Service) & Anor  QIRC 136
State of Queensland (Department of Health, Queensland Ambulance Service)
Application within existing proceedings
12 September 2019
25 June 2019
INDUSTRIAL LAW – APPLICATION TO DISMISS – whether there are no reasonable prospects of success – whether further proceedings not necessary or desirable in the public interest – whether there was a failure to comply with directions order.
Anti-Discrimination Act 1991 (Qld) s 7, s 15, s 118, s 124.
Fair Work Act 2009 (Cth) s 342.
Industrial Relations Act 2019 (Qld) s 278, s 280, s s 282, s 284, s 285, s 295, s 306, s 307, s 541.
Industrial Relations (Tribunals) Rules 2011 (Qld) r 45.
Agar v Hyde (2000) 201 CLR 552
Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32
Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd  FCA 462
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
McGarva v Enghouse Australian Pty Ltd  FCCA 1522
Parker v Australian Building and Construction Commissioner  FCAFC 56
Mr L Copley of Counsel, instructed by Milner Lawyers, for the Appellant
Mr C Murdoch QC and Mr C Martin of Counsel, instructed by Crown Law for the Respondents
Reasons for Decision
- The State of Queensland (Department of Health, Queensland Ambulance Service) (First Respondent in the substantive matter) seeks an order dismissing Ms Pereira's (Applicant in the substantive matter) application alleging that the First Respondent has breached ss285, 295 of the Industrial Relations Act 2016 (Qld) (The IR Act) by taking adverse action or proposing to take adverse action against her and that Mr Metcalfe (the Second Respondent in the substantive matter) has breached s 307 of the IR Act by encouraging or advising the First Respondent to take action in breach of ss 285, 295 of the IR Act and is involved in the First Respondent's breach of ss 285, 295.
- The relevant parts of the relevant sections of the IR Act are reproduced hereunder:
280 Action to which this part applies
Subject to section281, this part applies to the following action—
- (a)action taken by an employer;
- (b)action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer;
- (c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer—
- (i)to take, or not take, particular action in relation to another person; or
- (ii)to threaten to take, or not take, particular action in relation to another person.
282 Meaning of adverse action
- (1)Adverse action is taken by an employer against an employee if the employer—
- (a)dismisses the employee; or
- (b)injures the employee in his or her employment; or
- (c)alters the position of the employee to the employee’s prejudice; or
- (d)discriminates between the employee and other employees of the employer.
- (6)Adverse action does not include action that is authorised under—
- this Act or any other law of the State; or
- a law of the Commonwealth.
284 Meaning of workplace right
- (1)A person has a workplace right if the person—
- has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
- is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
- is able to make a complaint or inquiry—
- to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
- if the person is an employee—in relation to his or her employment.
- (2)In this section—
industrial body means—
- the commission; or
- the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.
- (1)A person must not take adverse action against another person—
- (a)because the other person—
- (i)has a workplace right; or
- (ii)has, or has not, exercised a workplace right; or
- (iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
- (b)to prevent the exercise of a workplace right by the other person.
This subsection is a civil penalty provision.
- (1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of a person's sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities or association with, or in relation to, a person identified on the basis of any of these attributes.
306 Reason for action to be presumed unless proved otherwise
- (1)Subsection 2 applies if –
- (a)In an application in relation to a contravention of a provision of this part, it is alleged that a person took or, or is taking, action for a particular reason or with a particular intent; and
- (b)Taking that action for that reason or with that intent would be a contravention of the provision.
- (2)It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
307 Advising, encouraging, inciting or coercing action
A person is taken to contravene a provision of this part if –
- (a)for a particular reason, the person advises, encourages or incites, or takes any action with intent to coerce, another person to take action; and
- (b)the action, if taken by the other person for that reason, would contravene the provision.
industrial law means—
- (a)this Act; or
- (b)another Act regulating the relationships between employers and employees.
541 Decisions generally
The Court or commission may, in an industrial cause do any of the following
- (b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court of commission considers –
- (i)the cause is trivial; or
- (ii)further proceedings by the court or commission are not necessary of desirable in the public interest.
Application to dismiss
- On 9 April 2019 the Respondents applied for a decision to have Ms Pereira's general protections application be dismissed pursuant to s 541 of the IR Act because further proceedings are not necessary or desirable in the public interest. Alternatively, the Respondents seek that the application be dismissed pursuant to r 45 of the Industrial Relations (Tribunal) Rules 2011 (Qld) (the IR Rules) on the grounds of non-compliance with Directions Orders.
- The relevant allegations against the Respondents are contained in the following paragraphs of the Applicant in the substantive matter's amended application filed 9 May 2019:
5.1.By making her application for flexible work arrangements as described above the Applicant exercised a workplace right as that term is defined in section 284 of the Act.
5.2.Further, the Applicant has workplace rights that are protected by ss 7(a) and (b), 15(l)(f), 118 and 124(1) of the Anti-Discrimination Act 1991 (Qld), namely
5.2.1.not to be discriminated against by being treated unfavourably in connection wih work, on the basis of her relationship status or on the basis of a characteristic which applies or is attributed to a person on the basis of their relationship status;
5.2.2.not to be discriminated against by being treated unfavourably in connection with work, on the basis of her sex;
5.2.3.not to be asked to supply information on which unlawful discrimination might be based.
5.3.The rights of the Applicant referred to in paragraph 5.2 above are workplace rights as that term is defined in section 284 of the Act.
5.4. The conduct of the First Respondent in the circumstances:
5.4.1.in commencing the investigation into the relationship between the Applicant and Deputy Commissioner Emery with respect to the Applicant referred to in paragraph 4.7, 4.9 and 4.10 was adverse action because it exposed the Applicant to disciplinary action under the First Respondent's policies and procedures or under applicable legislation;
5.4.2. in advising the Applicant that she was the subject officer with respect to allegations of corrupt conduct referred to in paragraphs 4.17 because it was likely to and did cause the Applicant to suffer an anxiety related illness due to the seriousness of such an allegation and the attendant risk of disciplinary action;
5.4.3.in setting the Terms of Reference referred to in paragraphs 4.12 and Amended Terms of Reference referred to in paragraphs 4.19 was adverse action because it failed to adhere to or comply with the First Respondent's policies and procedures with respect to conflict of interest;
5.4.4.in directing that questions be asked of the Applicant and witnesses about her relationship status and when any relationship commenced was adverse actions because it was not necessary or reasonably necessary as no conflict of interest had been identified or was identified and was likely to and did cause the Applicant humiliation and embarrassment;
5.4.5.the unreasonable delay to the conclusion of the investigation as referred to in paragraphs 4.31 was adverse action because it was inconsistent with the First Respondent's policies, procedures or guidelines for conducting investigations and because it was likely to and did cause the Applicant anxiety and distress;
5.4.6. in creating or deciding to create a determinantal [sic] employee record about the Applicant was adverse action because it would have a negative impact on her professional reputation, make her employment less secure and impact her future career prospects;
5.4.8. in failing to allocate an organisational contact to the Applicant as alleged in paragraphs 4.27 was adverse action as it denied the Applicant the benefit of the First Respondent's policies and procedures intended to assist her through an investigation process and was likely to cause injury and did cause injury to the Applicant's health;
Was adverse action under section 282(1)(b) and/or (c) of the Act for a reason that the Applicant had exercised a workplace right of making an application for a flexible work arrangement and was in breach of section 282 of the Act and/or because of the Applicant's relationship status in breach of section 295 of the Act.
5.5. The conduct of the Second Respondent described at paragraph 4.36 is in breach of the Applicant's rights under the Anti-Discrimination Act 1991 Qld) section 7(a), 15, 118 and 124.
5.6By failing to disclose the nature of his personal interest in his conduct towards the Applicant as described in paragraph 4.36 and as alleged in paragraph 4.38 the Second Respondent encouraged, advised or was involved in the First Respondent making the findings or caused the First Respondent to make the findings referred to in paragraph 4.28 and coming to the outcome referred to in paragraph 4.29.
5.7.The conduct of the Second Respondent referred to in paragraphs 5.6 was adverse action under section 282 (1) (b) (c) and/or (d) of the Act because it was a breach of or inconsistent with the First Respondent's policies and procedures regarding conflict of interest and code of conduct impacting the Applicant and was for the reasons of the Applicant's relationship status or sex and was in breach of section 285 and section 295 of the Act.
5.8 The conduct of the Second Respondent as described above was a breach of section 307 of the Act.
5.9.The conduct of the First Respondent described in paragraph 4.34 was because:
5.9.1. the Applicant had exercised a workplace right of making a successful application for a flexible work arrangement; and/or
5.9.2the Applicant was a witness or subject officer in a workplace investigation and therefore had a role under an industrial law;
And was adverse action under 282(1)(b) and/or (c) and (d) of the Act because it was a breach of or inconsistent with the First Respondent's policies and procedures and obligations with respect to return to work programs and rehabilitation and it discriminated against the Applicant by treating her differently to other ill or injured employees and was in breach of section 285 of the Act.
5.10.Further the Second Respondent encouraged or advised the First Respondent to engage in the action referred to in paragraphs 4.34 was adverse action as described above under section 282 (1) (b) (c) and/or (d) of the Act because of the Applicant's relationship status or sex and was in breach of section 285 and section 295 of the Act.
5.11. The conduct of the First Respondent as described in paragraph 4.35 was because:
5.11.1.the Applicant had exercised a workplace right of making a successful application for a flexible work arrangement; and/or
5.11.2.the Applicant was a witness or subject officer in a workplace investigation and therefore had a role under an industrial law;
And was adverse action under section 282 (1) (b) and/or (c) of the Act as it denied the Applicant the benefit of the flexible workplace arrangement and was in breach of section 285 of the Act.
5.12.In the circumstances as described herein, the Applicant was under no obligation to make any disclosure to the Second Respondent Mr Metcalf as found by the Investigation Report and set out in paragraph 4.28 hereof and adopted by the First Respondent and stated in the letter dated 17 July 2018 referred to in paragraphs 4.29 hereof and the First Respondent, would breach 124(1) of the Anti-Discrimination Act 1991 (Qld) by expecting or requiring the Applicant to make such a disclosure. The First Respondent's conduct in making the findings and creating a detrimental employee record was adverse action because it is a permanent adverse employee record about the Applicant affecting her reputation and future employment prospects. The conduct of the First Respondent was for the reasons of the Applicant's relationship status and was adverse action under section 282 (1) (b),(c) and (d) and in breach of section n285 of the Act [sic] and it discriminated between the Applicant and other employees because it imposes on the Applicant an obligation of disclosure over and above those required by the First Respondent's policies and procedures with respect to conflict of interest.
5.13.The Second Respondent's conduct in being involved in any investigation or workplace process involving any possible adverse outcome for the Applicant was adverse action under section 282 (1) (b) (c) and/or (d) in breach of breach of [sic] section 285 and 295 of the Act because it was a breach of or failure to comply with the First Respondent's conflict of interest policies and procedures requiring disclosure of a personal interest and it impacted on the Applicant and was for the reasons of the Applicant's relationship status and/or because of her rights under section 15, 118 and 124 of the Anti-Discrimination Act 1991 (Qld).
- It is the position of the Respondents that none of the allegations can be found to be adverse action, and that even if the Commission accepted as fact that each of the actions taken (above) occurred, as a matter of law, they cannot meet the definition of adverse action and that the Applicant's case cannot succeed.
- The Respondents further request, that should the Commission find that there is merit in hearing part of the Applicant's allegations, a decision should be made striking out those aspects which are doomed to fail in law.
- The Respondents state that for three reasons variously applied to all of the alleged actions attributed to the First Respondent, none of them could constitute 'adverse action' within the meaning of s 282(1) of the IR Act:
First, None of the following alleged conduct of the first respondent could be adverse action under s 282(1) because, in each case, the relevant action was authorised under a law of the state, namely, the Crime and Corruption Act, the HHBA, or the PSR:
- Commencing the investigation of corruption.
- Setting the terms of reference for the HHBA investigation.
- Directing that questions be asked of the applicant and witnesses about the applicant's relationship status and when any relationship commenced.
- Delaying the conclusion of the investigation.
- Creating a detrimental record about the applicant.
Second, none of the following alleged conduct of the first respondent could be adverse action under s282(1)(b) or (c) because none of the conduct either injured the applicant in her employment or altered the position of the applicant to her prejudice:
- Ms Speers' conduct on 5 September 2017 in advising the applicant that she was the subject officer with respect to allegations of corrupt conduct;
- Failing to allocate a contact officer to the applicant;
- Ms Axelby's conduct on 18 April 2018, in saying to the Applicant that:
- The second respondent was involved in determining a response to the applicant's return to work programme.
- The flexible work arrangements that had been in place since March 2017 were still a trial.
- She [Ms Axelby] had decided to revoke the flexible work arrangements.
- The only graduated return to work programme that the first respondent would consider would require the applicant to work in Brisbane;
- Ms Gribaudo and Ms Axelby on 20 July 2018 engaging in a conversation in which they discussed their intention to ensure that the applicant never worked from Caloundra again.
Third, the respondent's conduct, through the actions of Ms Axelby on 18 April 2018, could not be adverse action under s 282(1)(d) because the alleged conduct did not discriminate between the applicant and other ill or injured employees of the first respondent.
- The Respondent offers non-compliance with directions as an alternative basis for dismissal and submits that the application should be dismissed under rule 45 of the Rules because the applicant has failed to comply with a directions order dated 1 February 2019, in several ways, one of which is ongoing.
Action authorised under a law of the State
- There are different reasons put forward by the parties as to what motivated the decision to commence the investigation and related decisions such as the setting of Terms of Reference for the investigation.
- The argument put forward by the Respondents is that some of the alleged adverse actions cannot constitute adverse action as they are authorised under the Crime and Corruption Act 2001 (Qld) (CC Act), part 9 of the Hospital and Health Boards Act 2011 (Qld) (HHBA), and s 12 of the Public Service Regulation 2008 (Qld) (now repealed) and therefore s 282(6) precludes them from being adverse action under s 282(1)(b), (c) or (d).
- Further, the Applicant submits that it is their belief that decisions had been made by others to conduct an investigation at some stage prior to the receipt of the anonymous complaint that the Respondents say created the impetus for the investigation.
- As I understand it, the Respondent's construction of s 282(6) of the IR Act would appear to provide the State with a 'catch all' defence that would mean employees do not have the opportunity to make an argument that they should have access to the protection offered by s 282(1) in the event that the action taken was taken in relation to Acts or other laws of the State.
- The relevant section of the IR Act mirrors s 342 of the Fair Work Act 2009 (Cth) (FW Act) and there has been some consideration of the equivalent FW Act provision to s 282(6) of the IR Act. In McGarva v Enghouse Australian Pty Ltd, Driver J, albeit when considering an unfair dismissal case stated:
Having heard from the parties, I have come to the firm view that the reference to action authorised by or under law in s 342(3) should be read in a cumulative fashion. That is, the mere fact that action – in this case, relevantly, a dismissal – may be authorised under s 352 of the Fair Work Act and the Regulations does not carry an implication for any claim under s 351. A dismissal may be authorised due to the period of absence but it may still constitute an unlawful dismissal under Commonwealth or state anti-discrimination legislation.
- I note the authority raised by the Appellant and addressed by the Respondent in relation to this matter and the consideration given by Flick J to s 342(1) regarding action 'authorised' by the corresponding section of the FW Act:
there emerges a need to approach the interpretation of the term "authorise" with some degree of caution. Section 342(1) is a provision which seeks to protect employees from "adverse action" being taken against them by an employer. There is no readily apparent reason why such a provision should be read in any manner other than beneficially and in a manner which makes meaningful the protections there afforded….Section 342(3) should obviously not be construed in a manner which would render the protections meaningless. That which s 342(3) contemplates, it is concluded, is "action" that is expressly "authorised" by the Fair Work Act or "action" that is sanctioned or approved by a provision (for present purposes) relevantly found elsewhere in the Fair Work Act. (emphasis added)
- In that same decision, Flick J explored s 342(3) and s 342(1) of the FW Act as follows:
 The exclusion effected from s 342(3) from the operation of what would otherwise constitute 'adverse action' under s 342(1) has to be construed in a manner which relevantly both gives effect to:
- the prohibition placed upon an employer discriminating between employees; and
- that conduct which the Fair Work Act otherwise authorises.
To construe s 342(3)(a) in the manner advanced by Senior Counsel on behalf of Rio Tinto it is concluded, would be to give unnecessary and unwarranted pre-eminence to the latter consideration at the expense of the former.
 The 'authority' which is referred to is an 'authority' which takes its content from the 'adverse action' which is prohibited. In the present context, the 'authority' to which s 342(3)(a) is referring to is an 'authority' to engage in conduct which otherwise falls within Item 1(d). Section 50, 51 and 52 provide no real 'authority'.
- In light of the above, it is my view that an action undertaken may be authorised by a law, however, if it is undertaken for reasons proscribed by s 282(1) or s 295 of the IR Act, as alleged by the Applicant then it is not 'authorised' within the meaning of s 282(6) and the employee has a right to access the protection afforded by the adverse actions provisions.
- In the circumstances of this matter, and the Applicant's challenge to the action taken, it is necessary to explore why it was taken in order to establish whether it was authorised.
- This means that the chain of events leading to the decision to investigate, appointment of investigators, setting of terms of reference and so on, are relevant considerations and are worthy of examination at hearing where there is an opportunity to hear from the decision maker or decision makers.
- To determine that actions taken by an employer cannot be construed as adverse action because they are authorised by a law of the State without giving attention to the context and the motivations of the decision maker in taking the action or having regard to those influencing the decision or advising the decision maker/s would deny the Applicant the right to seek protections offered by the adverse action provision.
Conduct that did not injure the Applicant in her employment or alter the position of the Applicant to her prejudice
- The Respondents submit that the following actions did not injure the Applicant in her employment or alter her position to her prejudice:
- On 5 September 2017, Ms Speers advising the applicant that she was the subject officer;
- Failing to allocate an organisational contact;
- On 18 April 2018, Ms Axelby saying four things to the applicant; and
- On 20 July 2018, Ms Axelby and Ms Gribaudo engaging in a conversation.
- In so far as the second limb of the Respondents' argument that a range of actions cannot be considered adverse actions as they did not injure the employee in her employment or alter the position of the Applicant to her prejudice, I have considered the arguments and authorities put forward by the Respondent, and in relation to various actions and the alternative arguments submitted by the Applicant in response.
- It is my view that a decision about whether the Applicant was injured in her employment or had her position altered to her prejudice requires a consideration of evidence from both parties as to the practical impact of the actions which were taken.
- If the Applicant were to be able to establish that she was injured in her employment or had her position altered to her prejudice, and she was further able to demonstrate that it is possible the reason for this was the exercising of a workplace right or her relationship status, the reversal of onus would mean that it would be for the State to demonstrate that the actions were not taken for a proscribed reason. If there is found to be adverse action, the question becomes, why was the action taken?
- These matters are worthy of examination at a hearing and it would be premature for me to apply the case law as put forward by the Respondents to dismiss the matter.
Conduct did not discriminate between the applicant and other ill or injured employees of the First Respondent
- With regard to whether the employer's actions in relation to the return to work program discriminated between the Applicant and other ill or injured employees of the First Respondent, it is my view that the Applicant must have the opportunity to put forward her case as to why she believes the conduct alleged constitutes adverse action and how she was treated differently to other ill and injured employees in the application of the return to work policy.
References to the Anti-Discrimination Act
- The Applicant makes reference to the Anti-Discrimination Act 1991 (Qld) (AD Act) and states that she has workplace rights that are protected by ss 7(a) and (b), 15 (1)(f), 118, 124 (1) of the AD Act and states that these are workplace rights as that term is defined in s 284 of the IR Act.
- Further, the Applicant alleges that the conduct of the Second Respondent described at paragraph 4.36 is in breach of the Applicant's rights under the AD Act ss 7(a), 15, 118, 124.
- The Applicant states that the First Respondent would breach s 124(1) of the AD Act by expecting or requiring the Applicant to make a disclosure of her relationship to the Second Respondent.
- The Applicant states that:
the Second Respondent's conduct in being involved in any investigation or workplace process involving any possible adverse outcome for the Applicant was adverse action under section 282(1)(b)(c)and/or (d) in breach of section 285 and 295 of the Act because it was a breach of or a failure to comply with the First Respondent's conflict of interest policies and procedures requiring the disclosure of a personal interest and it impacted on the Applicant and was for the reason of the Applicant's relationship status and/or because of her rights under section 15, 118 and 124 of the Anti-Discrimination Act 1991 (Qld).
- The Applicant submits that the reference to the AD Act in the application is not to seek relief under the AD Act but rather to state that the Applicant had a right not to be discriminated against in the workplace and that the right not to be discriminated against on the basis of relationship status is a workplace right.
- Further, the Applicant submits that for the purposes of s 284 of the IR Act, the AD Act is an industrial law, that the rights provided to an employee under the AD Act are rights enjoyed by all employees in Queensland.
- The Respondents submit that
… the Industrial Commission has the capacity to deal with allegations of a contravention of the Anti-Discrimination Act in respect of events that occur in employment. But that can only occur in a context where there's been an application made to the Anti-Discrimination Commission which is then referred to this Commission under section 174B of the Anti-Discrimination Act. None of that's occurred here. So the respondents contend that the asserted breach of the Anti-Discrimination Act in paragraph 5.5 simply cannot be pressed before this Commission in this application.
Consideration re: Anti-Discrimination Act
- Section 278(1)(c) of the IR Act says that one of the purposes of the General Protections part is to "provide protection from workplace discrimination".
- To that end, s 295(1) states that "An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's sex, relationship status…"
- The Applicant has stated that in relation to a number of actions taken against her, these happened because of her sex and relationship status as per s 295 of the IR Act.
- The Application also makes reference to parts of the AD Act as workplace rights which were being exercised by the Applicant in relation to s 284 of the IR Act.
- However, paragraph 5.5 of the amended application differs as it refers to breaches of the AD Act by the Second Respondent.
- Likewise, paragraph 5.12 alleges a breach of s 124(1) of the AD Act, however it appears in the context of the findings of the investigation report and the creation of a 'detrimental employee record'.
- During the hearing, the Applicant clarified that references to breaches of the AD Act in the Amended Application should be read to refer to breaches of workplace rights and that the Applicant is not seeking relief under the AD Act.
- While the Applicant may have a workplace right to the protection of the AD Act, in the context of her adverse action complaint, she needs to demonstrate that alleged adverse action taken against her, was taken because she had a right to the AD Act.
- I cannot see in her application how a connection between the alleged adverse action and a right to the AD Act is made out.
- It is my view that to the extent the Applicant says that action has been taken against her due to her sex or relationship status, s 295 of the IR Act is the relevant section.
- To that end, in relation to the amended application, paragraph 5.5 is struck out.
- The words "and/or because of her rights under section 15, 118 and 124 of the Anti-Discrimination Act 1991 (Qld)" in paragraph 5.13 of the amended application are struck out.
- Further, where the Applicant alleges that the adverse action was taken for the reason of her relationship status or sex, the reference to the breach of s 285 of the IR Act in paragraphs 5.7, 5.10, 5.12, 5.13 in the amended application is struck out.
Conclusion – First Respondent
- The amount of evidence available to me at this point places me in a position where I am unwilling to determine that actions taken by the Respondents were either:
- Authorised by a law of the state;
- caused no injury or prejudice to the employment of the Applicant; or
- did not discriminate between the Applicant and other ill or injured employees of the First Respondent and therefore cannot constitute adverse action.
- The power afforded by s 541 of the IR Act to dismiss a matter before hearing should only be used in clear cases. I am not satisfied to a high degree of certainty about the ultimate outcome of the matter, and as I have stated previously, I do not believe that there is enough evidence before me to determine that the application is doomed to fail.
- It may be that as is argued by the Respondents, all of the actions cannot constitute adverse action, however, without a proper examination of the issues with the benefit of witness and documentary evidence it is not possible to determine this.
Section 571 of the IR Act
- The final paragraph of the amended application says:
5.14 The conduct of the Second Respondent described herein makes him a person involved in the contravention by the First Respondent of a civil penalty provision under section 571 of the Act.
- The Respondents submit that the allegation against the Second Respondent with regard to s 571 of the IR Act is "impermissibly vague to constitute a proper allegation of accessorial liability to pursuant to s 571".
- The Applicant alleges that:
The second respondent is involved in the first respondent's breaches of the general protection provisions of the Act. An allegation of involvement is permitted under section 571 of the Act. 'Involvement in' is a term broadly defined in section 571(3) and includes 'aiding' a contravention or 'counselling' the contravention or being 'in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention'.
- However, I note the Respondents' submission that the Second Respondent should know the case he has to meet, and paragraph 5.14 of the amended application does not list the specific alleged actions taken by the First Respondent that the Second Respondent is said to be involved in.
- If one reads the entire amended application, there are allegations of the involvement of the Second Respondent. Some of these are specifically alleging actions he has undertaken, and others allege involvement in the actions of the First Respondent.
- At the hearing, Mr Copley addressed the matter of paragraph 5.14 of the amended application:
Now, dealing with the allegations against the second respondent, I'll accept immediately that paragraph 5.14 could – particulars could be provided of that. The matters that were addressed on orally by my learned friend, Mr Murdoch, they are something that we could respond to so they're not taken by surprise. It's not something that they would be taken by surprise, in our submission because all of the matters that we rely upon are set out in the affidavit by Ms Pereira and in the pleading. But if needs be, we could provide those particulars under that section of there – to link it back to section 57.
But if the complaint is that we don't really know which parts of the pleading you're referring to, to establish the civil penalty provision, well then, we can provide that information.
- I am of the view that paragraph 5.14 in its current form does not provide the Second Respondent with adequate particulars of the alleged contraventions, however, this can be overcome by the provision of such by the Applicant as suggested above.
Can the Second Respondent take adverse action?
- The amended application alleges that the Second Respondent:
3.2.1 has breached section 307 of the Act by encouraging or advising the First Respondent to take the action in breach of section 285 and/or 295 of the Act;
3.2.2 is involved in the First Respondent's breach of section 285 and 295 of the Act.
- The application then goes on to address facts relied on to support the application including conduct of the Second Respondent (paragraphs 4.36-4.38) and then the effect of the conduct, including references to the Second Respondent at 5.5, 5.6, 5.7, 5.8, 5.10, 5.12, 5.13 and 5.14.
- It is further submitted by the Respondents that paragraphs 5.6 and 5.7 of the amended application alleging that the Second Respondent engaged in adverse action cannot apply as the Second Respondent is not the employer and ss 285, 295 of the IR Act refer to actions taken by an employer and further that paragraph 5.7 alleging that the conduct of the Second Respondent as described in paragraphs 5.6 and 5.7 was a breach of s 307 of the IR Act cannot apply as:
The difficulty is that when one looks at 5.6, 5.7 and 5.8, the other person, who logically, must be the first respondent, isn't the person who's alleged to have engaged in the adverse action. The person who's alleged to have engaged in the adverse action is the second respondent. So the second respondent can't advise, encourage or incite himself to take adverse action. He's got to be – it's got to be alleged that he's advising, encouraging or inciting the first respondent, and that's not what's alleged in those provisions. So it's what's alleged is incapable of satisfying the tests contained in the legislation.
- While I understand what is being put forward by the Respondents, I observe that paragraphs 5.6 and 5.7 make reference to both the First Respondent and the Second Respondent. Paragraph 5.8 then refers to the Second Respondent separately alleging that his conduct in those two previous paragraphs was a breach of s 307 of the IR Act.
- In addressing the matter of s 307 of the IR Act at the hearing, the Applicant stated:
So if we can prove those matters, those factual matters, then, having regards to the terms of section 307, Mr Metcalfe, the second respondent, is taken to contravene a provision of this part which includes section 286 (sic). So he doesn't need to be the employer, of course he isn't. He's a fellow employee. But an ordinary reading of that section shows that he would be taken to have breached a provision of the part, which would include the provisions – the adverse action provisions, saying that a person must not take an adverse action against one other person because they've exercised a workplace right.
- The problem I have with determining as put forward by the Respondents that these sections cannot apply to the Second Respondent at this point, is that the way these paragraphs are worded make it difficult to extract his actions from the conduct of the First Respondent.
- It must be clear to the Commission what it is being asked to consider, and to the Respondents what is being alleged. Paragraphs 5.6, 5.7, 5.8, 5.10, 5.13 are not clear as to whether the allegation is against the First Respondent or the Second Respondent or both, and if both, which specific sections of the IR Act they say apply to the Second Respondent. In my view, this can be remedied by the provision of further particulars.
- With regard to sections which specifically reference actions taken by the employer, or in advising, encouraging, inciting or coercing action under s 307 of the IR Act, in my view, the hearing of the substantive matter will be the opportunity to determine whether the adverse action occurred and if so, what the involvement of the Second Respondent is, if at all and if any of the allegations of involvement put forward by the Applicant apply.
- In circumstances where I have determined that the application cannot be dismissed based on the evidence currently available to me regarding the First Respondent, I am similarly unwilling to dismiss the application as it relates to the Second Respondent (with the exception of the striking out of paragraph 5.5 of the amended application).
Non-Compliance with Directions Orders
- The Respondents submit that by failing to comply with the Directions Order of 1 February 2019 and 1 May 2019, the Applicant has "occasioned unnecessary delay in the proceeding and prejudiced the State's ability to comply with the Directions applying to them and conduct their case efficiently and effectively".
- The Respondents' submissions outline the Directions they say the Applicant has not complied with, and with regard to the Order of 1 February 2019, the Applicant failed to comply with Directions 1, 3 and 5.
- They describe occasions where the Applicant only complied with Directions some days after the dates in the Order and only following Respondents' complaints about the non-compliance.
- The Respondents state that to date, the Applicant has not: (a) replied to the Respondents' 26 February and 11 March 2019 correspondence regarding the deficiencies in her disclosure; or (b) supplied them with any of the missing documents. They say that in these circumstances the Applicant's non-compliance with Direction 3 is ongoing and that this significant continuing default is imposing an unacceptable burden on the Respondents.
- The Respondents say that the Applicant failed to comply with Direction 5 by failing to either supply to the Respondents or file in the Industrial Registry any affidavits by 4pm on Friday 15 March 2019 and that a single affidavit was supplied and filed three days later than required.
- With regard to the 1 May 2019 Order, the direction to file and serve an amended application by 4pm on 8 May 2019 was not complied with as an unstamped copy of the amended application dated 8 May was provided only on 9 May 2019 following the Respondents' complaint about non-compliance.
- The Respondents state that while the most recent non-compliance might be considered to be relatively minor, the cumulative effect of the Applicant's defaults in this case ought to satisfy the Commission that the Applicant is either unwilling to cooperate or unable to do so and that the Commission ought to exercise its power under r 45(3)(a) of the IR Rules to dismiss the proceeding.
- The Applicant states that the Commission does not have the benefit of any affidavits of evidence which were required to be filed by the Respondents on 19 April 2019 in reply to matters set out in the Applicant's affidavit of evidence filed on 18 March 2019 and that the Respondents are asking the Commission to deny a person the right to run a claim without having to respond to matters raised against them or even to give proper disclosure.
- The Applicant submits that the Respondents have refused and failed to give proper disclosure of documents relevant to issues in dispute between the parties as required by the 1 February 2019 order.
- In response to an email on 30 May 2019 from the Applicant's representative outlining categories of documents not included in the Respondents' list of disclosed documents, the Respondents reply dated 31 May 2019 states "…it is the Respondents' position that the appropriate time to address any issues related to disclosure in the substantive application would be following the handing down of a decision regarding the dismissal application".
- The substantive application was filed on 10 September 2018. It took the Respondents seven months until 9 April 2019 and just five weeks before the scheduled trial date to file the application to dismiss the application.
- The Applicant submits that the Respondents have made no reasonable attempt to comply with their obligations with respect to disclosure with important categories of documents not included in the Respondents' list of documents and that the Second Respondent has not given any disclosure at all.
- The Applicant submits that "it is reasonable to conclude that the respondents have deliberately refused to give proper disclosure of documents given the broad range of categories of documents that have not been disclosed."
- The Applicant further states that
in the circumstances the Commission must conclude that the application to strike out/dismiss the applicant's application is no more than a device to frustrate the resolution of the matter and to incur unnecessary costs to the applicant. The respondents are trying to avoid giving proper disclosure and being put to evidence to explain the actions taken against the applicant.
- It is submitted that the Commission cannot consider an application to strike out while the Respondents continue to deliberately avoid the obligations to give disclosure of documents.
Consideration of submissions regarding failure to comply with directions orders
- I recognise and acknowledge the submissions of both parties regarding the failure of the other to comply with directions or undertake with disclosure.
- I accept that due to this application and the vacating of previous directions, there has not been the opportunity for the full disclosure of documents relevant to the allegations.
- It is my view that on the material provided to the Commission, that neither the substantive application nor this application to dismiss should be dismissed on the grounds of non-compliance with Directions Orders.
- The Application to dismiss is upheld in part, with the following relating to the amended application in the substantive matter:
- Paragraph 5.5 is struck out.
- The words "and/or because of her rights under section 15, 118 and 124 of the Anti-Discrimination Act 1991 (Qld)" in paragraph 5.13 are struck out.
- The reference to the breach of s 285 of the Anti-Discrimination Act 1991 (Qld) in paragraphs 5.7, 5.10, 5.12 and 5.13 is struck out.
- A decision on costs is reserved.
 Outline of submissions for the Respondents filed by the Respondents on 31 May 2019 ('Respondents' submissions 31 May 2019') at -.
 T1-30, line 47; T1-31 lines 1-2.
 T1-31, lines 17-39.
 T1-23, line 44; Affidavit of Anne Milner 25 June 2019 at 4 (a)-(o).
 Industrial Relations Act 2016 (Qld).
  FCCA 1522.
 Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd  FCA 462, 46.
 Ibid 39.
 Industrial Relations Act 2016 (Qld).
 Police Federation of Australia v Nixon (2008) 168 FCR 340, Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1, National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90.
Jones v Queensland Tertiary Admissions Centre Ltd (No 2)  FCA 399; Keenan v Cummins South Pacific Pty Ltd  FCCA 2600 (14 September 2018); Federal Court v Community and Public Sector Union FCA 267; Metcalfe v Clayton Church Homes Incorporated  FCA 219 at ; Walters v Drummond & Ors  QSC 97.
 Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32.
 Application in the substantive matter filed by the Applicant on 10 September 2019 ('Applicant's Application'), [5.2].
 Applicant's Application, [5.5].
 Applicant's Application, [5.12].
 Applicant's Application, [5.13].
 T1-29, line 43.
 T1-41, lines 16-22.
 T1-16, line 15.
 Industrial Relations Act 2016 (Qld).
 T1-52, lines 20-21.
 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130; Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84, 91.
 Agar v Hyde (2000) 201 CLR 552,  (Gaudron, McHugh, Gummow and Hayne JJ).
 Outline of Submissions filed in Reply filed by the Respondents on 21 June 2019, .
 Submissions of Applicant on application to dismiss filed by the Applicant on 19 June 2019 ('Applicant's submissions'), .
 Parker v Australian Building and Construction Commissioner  FCAFC 56,  quoting Australian Building and Construction Commissioner v Parker  FCA 564, -.
 T1-37, lines 25-32.
 T1-37, lines 40-42.
 T1-17, lines 17-24.
 T1- 38, lines 23-30.
 Respondent's submissions 31 May 2019 at .
 Respondents' submissions 31 May 2019 at .
 Respondents' submissions 31 May 2019 at -.
 Respondents' submissions 31 May 2019 at .
 Respondents' submissions 31 May 2019 at .
 Respondents' submissions 31 May 2019 at .
 Respondents' submissions 31 May 2019 at ; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, 396.
 Applicant's Submissions, .
 Affidavit of Anne Milner sworn 14 June 2019, exhibit AM3.
 Applicant's submissions at, .
 Applicant's submissions, .
 Applicant's submissions, .
- Published Case Name:
Kerrie Pereira v State of Queensland (Department of Health, Queensland Ambulance Service) and Michael Metcalfe
- Shortened Case Name:
Pereira v State of Queensland (Department of Health, Queensland Ambulance Service) & Anor
 QIRC 136
12 Sep 2019