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  4. Morgan v State of Queensland (Queensland Health) - [2020] QIRC 184

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Morgan v State of Queensland (Queensland Health)[2020] QIRC 184

Morgan v State of Queensland (Queensland Health)[2020] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Morgan v State of Queensland (Queensland Health) [2020] QIRC 184

PARTIES:

Morgan, DanN

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

B/2020/68

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

29 September 2020

HEARING DATE:

29 September 2020

MEMBER:

Merrell DP

DELIVERED AT:

Brisbane

ORDER:

The Applicant's application in existing proceedings, filed on 24 September 2020, is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - employment - application to permanently stay disciplinary process commenced under the Public Service Act 2008 - application for interim injunction to restrain further action being taken in disciplinary process because of alleged contravention of s 190 of the Public Service Act 2008 - whether Commission has power to grant an interim injunction to restrain a disciplinary process, commenced under the Public Service Act 2008, pursuant to s 473, s 451 or s 539 of the Industrial Relations Act 2016 - Commission does not have such power - order that application for interim injunction is dismissed

LEGISLATION:

Industrial Relations Act 2016, s 309, s 312, s 313, s 314, s 316, s 447, s 451, s 473 and s 539

Public Service Act 2008, s 187, s 188 and s 190

CASES:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 20

State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R 257

APPEARANCES:

Mr M. Heffernan of Supportah Ops Pty Ltd T/A Industrial Relations Claims for the Applicant.

Ms J. Marr of Counsel instructed by Ms L. Brown of Crown Law for the Respondent.

Reasons for Decision (ex tempore)

  1. [1]
    Mr Dan Morgan is presently employed by the State of Queensland through the Metro South Hospital and Health Service.  Since 24 January 2017, Mr Morgan has been employed in the substantive position of Manager, Staff Integrity and Investigations Unit, also known as the Ethical Standards Unit ('ESU'), within the Metro South Hospital and Health Service.  The classification of Mr Morgan’s substantive position is A07.  Furthermore, from 2 October 2017 to 16 April 2018, Mr Morgan acted in the position of Director of the ESU.
  1. [2]
    By email dated 30 July 2019, Ms Janelle Loader, Director of the ESU, raised concerns with Mr Dave Waters, Executive Director, Human Resources of the Metro South Hospital and Health Service, about timesheets submitted by Mr Morgan in 2019.  In December 2019, Mr Morgan was asked to show cause why certain disciplinary findings should not be made against him, including alleged disciplinary findings in relation to entering time records that did not reflect the hours he worked.
  1. [3]
    As best as I can make out from the material before me today, Mr Morgan's lawyer responded to that show cause letter, which then seemed to result in a revised disciplinary findings show cause letter to Mr Morgan dated 14 January 2020.  That letter particularised nine allegations against Mr Morgan, seven of which concerned him entering time records that did not reflect the hours he worked, plus two other allegations; one alleging he did not treat a work colleague with respect and dignity, and the other alleging a contravention, without reasonable excuse, of a direction given to him by Ms Loader.  A response was received from, or on behalf of Mr Morgan, by the State of Queensland on 21 February 2020.
  1. [4]
    By letter dated 7 September 2020, Ms Nicola Dymond, Chief Operating Officer of the Metro South Hospital and Health Service, advised Mr Morgan she found each of the nine allegations substantiated and that Mr Morgan was liable for discipline under s 188 of the Public Service Act 2008.  In respect of the seven time record allegations, Ms Dymond found that Mr Morgan was guilty of misconduct within the meaning of s 187 (1)(b) of the Public Service Act 2008.  Ms Dymond advised Mr Morgan she was giving serious consideration to the termination of his employment and she gave Mr Morgan seven days to respond why the proposed disciplinary action of the termination of his employment should not be taken.
  1. [5]
    By application filed on 24 September 2020, Mr Morgan applied to the Commission for a range of orders in relation to the disciplinary finding process taken against him and in relation to the disciplinary action process to be taken against him.  The schedule to that application sets out the orders sought by Mr Morgan, namely:
  1. An Order that the show cause processes commenced by the Respondent on or about 14 January 2020 are permanently stayed and cannot be re‑commenced without the leave of the Commission.
  1. On (sic) order that no part of the show cause processes commenced by the Respondent on or about 14 January 2020 can be used by the Respondent in any future action without leave of the Commission.
  1. An Order that the Chief Operating Officer be restrained from making any further determinations in relation to the show cause process commenced on or about 14 January 2020.
  1. Further or in the alternative, an Order that the Show Cause process be returned to the initial stage, including a determination of local management action as envisioned by Policy E10, and conducted appropriately.
  1. Further or in the alternative, an Order that the show cause process, if returned to the initial stage, be determined by a new delegate.
  1. Any other order the Commission deems appropriate in the circumstances.
  1. [6]
    The section or sections of the Industrial Relations Act 2016 upon which the orders are sought were not particularised in the application.
  1. [7]
    In the affidavit of Mr Stephen Dryley-Collins, a solicitor with FWEL Pty Limited trading as Worker Law, affirmed on 24 September 2020 which accompanied that application, Mr Dryley-Collins alleges there were procedural and substantive flaws in the disciplinary process.  They include, but are not limited to, a lack of evidence in respect of the substantiated allegations, non‑compliance with the relevantly applicable Queensland Health Disciplinary Policy E10 and that termination of employment is not available as a valid consequence of Mr Morgan’s alleged behaviour.
  1. [8]
    From the arguments presented today, the fundamental proposition put on Mr Morgan’s behalf is that the State of Queensland, in undertaking the disciplinary process against him, did not comply with s 190 of the Public Service Act 2008.
  1. [9]
    Section 190 of the Public Service Act 2008 provides:
  1. (1)
    In disciplining a public service employee or former public service employee, or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.
  1. (2)
    However, natural justice is not required if the suspension is on normal remuneration.
  1. [10]
    By application in existing proceedings filed on 24 September 2020, Mr Morgan sought an urgent interlocutory hearing for the purpose of, amongst other things, seeking interim orders as set out in that application.  The schedule to the application in existing proceedings filed on 24 September 2020 relevantly sought:

…

  1. Until the matter is finally determined by the Queensland Industrial Relations Commission, interim injunctions are placed on the Respondent to desist from taking any action under the Show Cause process that commenced 14 January 2020, until the substantive application in this matter is determined;
  1. The Respondent to disclose to the Applicant’s agent within seven days all records, file notes and other material pertaining to the disciplinary and Show Cause process currently on foote (sic) that commenced 14 January 2020, in accordance with the requirements of the E10 Discipline Policy including any and all states[1] as they related to local management action.
  1. [11]
    Mr Heffernan, on behalf of Mr Morgan, in the course of argument today, did not press the order sought in paragraph 4.
  1. [12]
    I heard today, on an urgent basis, Mr Morgan’s application in existing proceedings to the extent interim injunctions were sought restraining the employees of the State of Queensland, or the relevant employee from the State of Queensland, from taking action in relation to the disciplinary process until Mr Morgan’s substantive application was determined.  In the application in existing proceedings, no section of the Act, upon which the interim injunctions were sought, was particularised.
  1. [13]
    As was evident from my exchange with the representatives of the parties today, there is a preliminary question to determine, namely, having regard to Mr Morgan’s application in existing proceedings, whether I have the power to grant the interim injunctions sought by Mr Morgan.  For the reasons that follow, my decision is that I do not have the power to grant the interim injunctions sought by Mr Morgan and Mr Morgan’s application in existing proceedings must be dismissed.
  1. [14]
    Section 473(1) of the Industrial Relations Act 2016 confers on the Commission power to grant an injunction:
  1. (a)
    to compel compliance with an industrial instrument, a permit or this Act; or
  1. (b)
    to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
  1. [15]
    In statutes, the term 'injunction' has come to be used to mean an order by which a court commands a person to do, or refrain from doing, some particular act and has come to be used in connection with orders of the kind that are specifically authorised by statute.[2]  In that context, an injunction is a curial remedy which can only be issued to protect an equitable or legal right or to prevent an equitable or legal wrong where the function of the court is to be justice according to law.[3]  
  2. [16]
    Having regard to the context in which the term 'injunction' is used in s 473(1) of the Act, there is no reason why 'injunction' in that section should be given a different meaning to the extent the Commission is empowered to grant an injunction by that section.  The exercise of a power by the Commission pursuant of s 473(1) of the Act to grant an injunction is clearly an exercise of judicial power by the Commission because the Commission is enforcing compliance with the Act, a permit or an industrial instrument.  Thus, by the grant of the injunction, the Commission is determining the rights and liabilities of persons, as opposed to the creation of rights and liabilities which is a legislative function.[4]
  1. [17]
    The power in s 473 includes the power to grant an interim injunction.  There is no definition of the phrase 'interim injunction' given in the dictionary of the Act.  Generally, an interlocutory injunction is usually expressed to last until the final hearing or further order whereas an interim injunction lasts until a named date or further order.  However, having regard to the context in which the phrase 'interim injunction' is used in s 473(10) of the Act, it does not seem to me that the granting of an injunction on the basis that it is not final is limited to orders of the kind traditionally made as interim injunctions.  It seems to me to be open to grant an injunction under s 473(1), until the final hearing of a substantive application, to compel compliance with an industrial instrument, a permit or the Act or to restrain or prevent a contravention, or continuation of a contravention, of an industrial instrument, a permit or this Act.
  1. [18]
    One further point should be noted. It has been authoritatively held by the equivalent provision in the Industrial Relations Act 1999, that is, the provision equivalent to s 473 (9), precludes the Commission from issuing an injunctive order against an employer who proposes to dismiss an employee.[5]
  1. [19]
    From a practical point of view, the act that Mr Morgan seeks Ms Dymond not do is to proceed with the next step in the disciplinary process under the Public Service Act 2008, namely, to determine the disciplinary action, if any, that should be taken against him, having regard to the substantiated allegations.  Section 473 of the Act is not available to Mr Morgan to secure such an order.  Section 473 is only available to grant an injunction so as to compel compliance with an industrial instrument, a permit or this Act; or to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or the Act.
  1. [20]
    Section 473(1) of the Act is not available to 'restrain or prevent a contravention' or 'to compel compliance' with the disciplinary procedures referred to in s 190 of the Public Service Act 2008.
  1. [21]
    In any event, for the reasons given earlier, an injunction cannot be granted for a proposed contravention of, amongst other sections, s 316 of the Industrial Relations Act 2016.  This provides that dismissal is unfair if it is harsh, unjust or unreasonable.  It seems to me that, having regard to the arguments provided to the State of Queensland in the disciplinary process thus far, and from the arguments presented to the Commission today, what is alleged is that the proposed dismissal of Mr Morgan would be harsh, unjust or unreasonable. In those circumstances, even if s 473(1) was applicable in present circumstances, an injunction cannot be issued for those reasons.
  1. [22]
    Mr Heffernan, on behalf of Mr Morgan, argued that, in the alternative, the Commission had power to grant the injunction sought pursuant of s 451(1) of the Act.  That section relevantly provides:

451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission and proceedings may-
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. [23]
    However, in my view, s 451 must be read with s 447 of the Act.  That section, is headed 'Commission’s functions' and s 447(1) provides the Commission’s functions include the following:

…

(p) any other function conferred on the commission under this Act or another Act.

  1. [24]
    The earlier paragraphs refer to the specific functions conferred on the Commission under the Industrial Relations Act 2016 and other Acts, including, for example, making modern awards,[6] taking measures to prevent disputes[7] and making declarations about industrial matters.[8]
  1. [25]
    Section 451 seems to me to only confer power on the Commission to do things necessary or convenient in the performance of a specific function as conferred under the Industrial Relations Act 2016, or under some other Act.  In my view, s 451(1) of the Act is not a source of substantive power to grant an injunction.
  1. [26]
    Mr Heffernan also referred to s 539 of the Industrial Relations Act 2016 as an alternative source of power to grant an injunction.  That section provides:

539  Powers incidental to exercise of jurisdiction

Except as otherwise provided for by this Act or the rules, the court, commission or registrar may-

  1. (a)
    at or before a hearing, take steps to find out whether all persons who are to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and
  1. (b)
    direct, for proceedings-
  1. (i)
    who the parties to the proceedings are; and
  1. (ii)
    by whom the parties may be represented; and
  1. (iii)
    persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and
  1. (iv)
    parties to be joined or struck out; and
  1. (v)
    who may be heard and on what conditions; and
  1. (c)
    hear and decide an industrial cause in the way that appears best suited for the purpose; and
  1. (d)
    allow claims in the proceedings to be amended on terms that appear fair and just; and
  1. (e)
    correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and
  1. (f)
    give directions under a decision that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and
  1. (g)
    hear and decide an industrial cause in the absence of a party, or person who has been called to attend or served with a notice to appear, at the proceedings; and
  1. (h)
    sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and
  1. (i)
    refer technical matters, accounting matters, or matters involving expert knowledge to an expert, and admit the expert’s report in evidence; and
  1. (j)
    extend a prescribed or stated time, before or after expiry of the time; and

(k)  waive compliance with the rules.

  1. [27]
    Section 539 does not refer to a power to grant an injunction on any basis and in my view is limited to the power to make directions or orders incidental to the Commission’s jurisdiction as conferred in other sections of the Industrial Relations Act 2016. 
  1. [28]
    Mr Heffernan also argued that the interim injunctions sought by Mr Morgan could be granted pursuant to s 314(1)(f) of the Act.  Section 314 of the Act is found in ch 8, pt 1, which deals with general protections.  Section 314 provides:

314  Orders on deciding application

  1. (1)
    Without limiting the commission’s jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313-
  1. (a)
    an order for reinstatement of the person;
  1. (b)
    an order for the payment of compensation to the person;
  1. (c)
    an order for payment of an amount to the person for remuneration lost;
  1. (d)
    an order to maintain the continuity of the person’s employment;
  1. (e)
    an order to maintain the period of the person’s continuous service with the employer;
  1. (f)
    an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
  1. [29]
    Mr Heffernan said that the power for the Commission to make the interim injunction as sought by Mr Morgan under that section arose because the State of Queensland had been put on notice about the action which allegedly contravened ch 8, pt 1 of the Industrial Relations Act 2016, as set out in the letter from Mr Dryley-Collins to Ms Natalie Thompson, Director, Metro South Human Resources, dated 23 December 2019.
  1. [30]
    In that letter, under the heading of 'Unlawful Adverse Action', Mr Dryley-Collins stated:

[48] Our client further puts you on notice of the events disclosed to him as part of the Show Cause process are indicative of prohibited adverse action within the meaning of s 284 of the Industrial Relations Act 2016 (Qld), whereby he has suffered adverse action as a result of his complying with his lawful responsibilities under Queensland law.

  1. [31]
    I do not agree with Mr Heffernan’s submission that such notice being given to the State of Queensland is sufficient for me to make an order of an interim injunction, of the nature sought by Mr Morgan, pursuant to s 314(1)(f).  There are three reasons for this.
  1. [32]
    First of all, there has been no application made under s 309 of the Act where Mr Morgan alleges a contravention of ch 8, pt 1 of the Act.  Second of all, as Ms Marr pointed out in her submissions, the effect of s 312 and s 313 of the Industrial Relations Act 2016 is that upon such an application being made under ch 8, pt 1 of the Industrial Relations Act 2016, there is a mandatory requirement for the Commission to hold a conciliation conference between the parties to help settle the application by conciliation before it hears the application.  Third of all, the terms of s 314 make it clear that the discretion to make an order, under that section, may only be taken on deciding an application mentioned in s 313 proceeds because conciliation has been unsuccessful.
  1. [33]
    There is a further reason why I would not grant the interim injunction of the kind sought by Mr Morgan under s 314, and that simply is that there has been no application filed and served on the State of Queensland alleging contraventions of ch 8, pt 1 of the Act. I would not make orders of the kind sought by Mr Morgan today without the State of Queensland being properly appraised of the specific allegations made by Mr Morgan that he has been the subject of prohibited conduct within the meaning of ch 8, pt 1 of the Act.
  1. [34]
    That is to say, it would not be procedurally fair, in any event, to make orders of such a nature today in the absence of the State of Queensland being given proper and reasonable notice of the contraventions alleged by Mr Morgan.
  1. [35]
    There have been other arguments made by the parties today in relation to Mr Morgan’s substantive application.  There have been many arguments advanced by Mr Heffernan today about the reasons why the disciplinary process taken against Mr Morgan, thus far, does not comply with the Public Service Act 2008.  However, it is not necessary for me to deal with those matters today.
  1. [36]
    For the reasons I have just given, Mr Morgan’s application in existing proceedings filed on 24 September 2020 is dismissed.
  1. [37]
    I make the following order:

The Applicant's application in existing proceedings, filed on 24 September 2020, is dismissed.

Footnotes

[1] The Applicant submitted that the word 'states' was in error and should have read 'steps'.

[2] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199, [60] (Gaudron J) ('Lenah').

[3] Ibid.

[4] State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R, 257 [69]-[72], [95] and [106] (Holmes, Muir and White JJA).

[5] Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 20, [19] (Martin J, President).

[6] Industrial Relations Act 2016 s 447(1)(e).

[7] Industrial Relations Act 2016 s 447(1)(g).

[8] Industrial Relations Act 2016 s 447(1)(o).

Close

Editorial Notes

  • Published Case Name:

    Morgan v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Morgan v State of Queensland (Queensland Health)

  • MNC:

    [2020] QIRC 184

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    29 Sep 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
2 citations
Jump To
Cite 1 - (2001) 208 CLR 199
Cite 2 - (2001) 208 CLR 199
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
2 citations
Jump To
Cite 1 - [2001] HCA 63
Cite 2 - [2001] HCA 63
Darlington v Queensland [2016] ICQ 20
2 citations
Jump To
Cite 1 - [2016] ICQ 20
Cite 2 - [2016] ICQ 20
The Australian Workers' Union of Employees, Queensland v State of Queensland[2014] 1 Qd R 257; [2012] QCA 353
4 citations
Jump To
Cite 1 - [2012] QCA 353
Cite 2 - [2012] QCA 353
Cite 3 - [2014] 1 Qd R 257
Cite 4 - [2014] 1 Qd R 257

Cases Citing

Case NameFull CitationFrequency
Construction, Forestry Mining & Energy, Industrial Union of Employees v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 1342 citations
Hitchcock v State of Queensland (Office of Industrial Relations) (No. 5) [2024] QIRC 2762 citations
Mancini v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 1923 citations
Navathe v State of Queensland (Queensland Health) [2024] QIRC 2473 citations
Smith v State of Queensland (Queensland Health) & Anor [2021] QIRC 3404 citations
Spencer v State of Queensland (Queensland Health) [2024] QIRC 2122 citations
1

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