Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Bentzen v Hinchinbrook Shire Council - [2021] QIRC 158

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Bentzen v Hinchinbrook Shire Council[2021] QIRC 158

Bentzen v Hinchinbrook Shire Council[2021] QIRC 158

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bentzen v Hinchinbrook Shire Council [2021] QIRC 158

PARTIES:  

Bentzen, Rosemary 

(Applicant)

v

Hinchinbrook Shire Council 

(Respondent)

CASE NO.:

TD/2019/73

PROCEEDINGS:

Application for reinstatement and application in existing proceedings

DELIVERED ON:

13 May 2021

HEARING DATES:

1 and 2 September 2020

DATES OF WRITTEN SUBMISSIONS:

Applicant's submissions: 15 February 2021 

Respondent's submissions: 25 March 2021 

Applicant's submissions in reply: 7 April 2021

MEMBER:

Merrell DP

HEARD AT:

Cairns

ORDERS:

  1. Pursuant to s 463(1) of the Industrial Relations Act 2016, it is declared that the purported dismissal of the Applicant, as notified to the Applicant by letter dated 22 August 2019, was invalid.
  1. The Applicant is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, and any further affidavit material, about the matters identified in paragraph [190] of the reasons for decision, by 4.00pm on Friday, 21 May 2021.
  1. The Respondent is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, in response to the Applicant's submissions referred to in Order 2, and any further affidavit material, by 4.00pm on Friday, 28 May 2021.
  1. Unless otherwise ordered, the matters identified in paragraph [190] of the reasons for decision will be determined on the papers.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPLICABILITY OF INDUSTRIAL LEGISLATION AND GENERALLY – application for reinstatement – application in existing proceedings for declaratory relief – applicant employed by Hinchinbrook Shire Council in the position of Executive Manager of Development Planning and Environmental Services – applicant dismissed for misconduct – whether dismissal was invalid due to non-compliance with the requirements of s 283(1) of the Local Government Regulation 2012 – whether other relief claimed should be granted – whether dismissal was harsh, unjust or unreasonable – dismissal did not comply with the mandatory requirements of s 283(1) of the Local Government Regulation 2012 – declaration that dismissal was invalid

STATUTES – SUBORDINATE LEGISLATION – VALIDITY – whether s 283(1) of the Local Government Regulation 2012 valid – whether s 283(1) of the Local Government Regulation 2012 was necessary or convenient to be prescribed for carrying out or giving effect to s 197(1) of the Local Government Act 2009 – determination that s 283(1) of the Local Government Regulation 2012 is valid

LEGISLATION:

Directive 14/20 Discipline, cl 3 and cl 8

Industrial Relations Act 1999, s 73 and s 78

Industrial Relations Act 2016, s 9, s 284, s 289, s 316, s 320, s 321, s 322, s 429, s 448, s 450, s 463, s 464, s 531 and sch 1

Local Government Act 2009, s 4, s 13, s 197 and sch 4

Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018, s 33 and s 34

Local Government Legislation (Councillor Complaints and Other Matters) Amendment Regulation 2018, s 3, s 4, s 16, s 17 and s 18

Local Government Regulation 2012, s 278, s 279, s 280 and s 283

Public Service Act 2008, s 53, s 188 and s 192A

Statutory Instruments Act 1992, s 4, s 7, s 21, s 22 and s 37

CASES:

Blows v Townsville City Council [2016] QIRC 066

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 213

Elmes v Carpentaria Shire Council [2016] QIRC 118

Epic Energy (WA) Nominees Pty Ltd v Michael [2003] WASC 156; (2003) 27 WAR 515

Esmonds Motors Pty Ltd v The Commonwealth [1970] HCA 15; (1970) 120 CLR 463

Featherstone v Tully [2002] SASC 243; (2002) 83 SASR 302

Gold Coast District Health Service v Walker [2001] ICQ 63; (2001) 168 QGIG 258

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

McEldowney v Forde [1971] AC 632

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Promnitz v Gympie Regional Council [2015] ICQ 011; (2015) 248 IR 64

Queensland Nurses and Midwives’ Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202

Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245

State of Queensland v Maryrorough Solar Pty Ltd [2019] QCA 129

Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20; (2012) 197 LGERA 1

Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; (2006) 1 Qd R 77

Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299

Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

APPEARANCES:

Ms K. Fredricks of Anderson Fredericks Turner Lawyers, for the Applicant.

Mr M. Healy of Counsel, instructed by Mr K. Grimshaw of Barry Nilsson Lawyers, for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Rosemary Bentzen commenced employment with the Hinchinbrook Shire Council ('the Council') on 8 April 1991 and she was continuously employed by the Council until she was dismissed, '… effective from Close of Business 6 August 2019.'[1] At that time, Ms Bentzen was employed by the Council in the position of Executive Manager of Development, Planning and Environmental Services ('EMDPES').
  1. [2]
    By letter dated 22 August 2019, Mr Alan Rayment, Chief Executive Officer of the Council, informed Ms Bentzen that the reason for the termination of her employment was '… misconduct arising from negligent mismanagement and subsequent lack of diligent, effective, efficient and economical management of a public resource of the Council.'
  1. [3]
    The principal reason for Ms Bentzen's dismissal related to the non-payment of rent by Mr Rick Mingon and Ms Tracy Mingon ('the lessees') who leased one of the Council's premises, in what is known as the TYTO precinct, to operate a restaurant known as 'Enrico's @ Tyto'. By 5 June 2019, the outstanding amount of rent was $26,216.75. In July 2019, the restaurant closed and the Council was subsequently advised that Mr Mingon was bankrupt.
  1. [4]
    In dismissing Ms Bentzen, Mr Rayment determined that Ms Bentzen was responsible for the fact that no invoice for rent had been sent to the lessees since August 2017. Other reasons were given by Mr Rayment for Ms Bentzen's dismissal in his letter dated 22 August 2019.
  1. [5]
    The Queensland Services, Industrial Union of Employees ('the Union'), by application filed on 26 August 2019, sought Ms Bentzen's reinstatement on the basis that her dismissal was harsh, unjust or unreasonable. Subsequently, two things occurred:
  • first, Ms Bentzen pursued her reinstatement application in her own name; and
  • secondly, Ms Bentzen, by application in existing proceedings filed on 26 September 2019, sought various forms of other relief, including a declaration that the termination of her employment was invalid.
  1. [6]
    Ms Bentzen contends that:
  • her dismissal was invalid because Mr Rayment, in dismissing her, failed to comply with s 283(1) of the Local Government Regulation 2012 ('the LG Regulation');
  • the Council contravened s 289 of the Industrial Relations Act 2016 ('the Act') by:
  1. –providing written notice to Ms Bentzen on 22 August 2019, stating that her dismissal was effective 6 August 2019; and
  1. –filing a Form 12A Employer Response to her application for reinstatement in the Commission on 3 September 2019, stating that her dismissal was effective on 2 August 2019; and
  • her dismissal was harsh, unjust or unreasonable.
  1. [7]
    Ms Bentzen also seeks an order, pursuant to s 283(2) of the LG Regulation that the Council be restrained from relying on any ground or particular being advanced '… in this proceeding' that was not advanced in a written notice to her pursuant to the mandatory provisions of s 283(1) of the LG Regulation.
  1. [8]
    The Council contends that:
  • Ms Bentzen's dismissal complied with s 283(1) of the LG Regulation as it existed at the time her employment was terminated;
  • Ms Bentzen is not entitled to the other relief she seeks because there was no contravention of s 289 of the Act; and
  • Ms Bentzen's misconduct caused the direct monetary loss to the Council of the unpaid rent by the lessees, such that that fact, and other unsatisfactory aspects of her performance, meant her dismissal was fair.
  1. [9]
    The most appropriate way to deal with Ms Bentzen's claims is:
  • first, to determine whether to Ms Bentzen's dismissal was invalid;
  • secondly, to determine whether Ms Bentzen should be granted the other relief she seeks; and
  • thirdly, to determine whether Ms Bentzen's dismissal was harsh, unjust or unreasonable.
  1. [10]
    For the reasons that follow, Ms Bentzen's dismissal was invalid in that there was no compliance with the mandatory requirements prescribed by s 283(1) of the LG Regulation.

Was Ms Bentzen's dismissal invalid?

  1. [11]
    Ms Bentzen contends that the failure of the Council to comply with s 279 and s 283 of the LG Regulation rendered her purported termination invalid.[2]
  1. [12]
    The Council contends that:
  • section 283 of the LG Regulation is ultra vires; or, in the alternative
  • it was required to give Ms Bentzen notice, but not written notice, of the matters referred to in s 283(1)(a) and s 283(1)(b) of the LG Regulation and that the Council complied with that obligation; or, in the alternative
  • it was not required to comply with s 283 of the LG Regulation because the requirements of s 283(1) and s 283(2) of the LG Regulation exclude the operation of the common law, and because Ms Bentzen engaged in repeated misconduct which warranted summary dismissal at law, the notice described in s 283(1) of the LG Regulation, therefore, was not required to be given.[3]

The relevant legislative provisions

  1. [13]
    As at 22 August 2019, s 197 of the Local Government Act 2009 ('the LG Act') provided:

197   Disciplinary action against local government employees

  1. (1)
    The chief executive officer may take disciplinary action against a local government employee.
  2. (2)
    A regulation may prescribe-
    1. when disciplinary action may be taken against a local government employee; and
    2. the types of disciplinary action that may be taken against a local government employee.
  1. [14]
    As at 22 August 2019, ch 8, pt 3, div 1 of the LG Regulation relevantly provided:

278 What div 1 is about

This division prescribes, for section 197(2) of the Act, when the chief executive officer may take, and the types of, disciplinary action.

279 When disciplinary action may be taken

The chief executive officer may take disciplinary action against a local government employee if the chief executive officer is satisfied the employee has-

  1. (a)
    failed to perform their responsibilities under the Act; or
  2. (b)
    failed to perform a responsibility under the Act in accordance with the local government principles; or
  3. (c)
    taken action under the Act in a way that is not consistent with the local government principles.

280 Types of disciplinary action

  1. (1)
    The disciplinary action taken by the chief executive officer against a local government employee may be 1 or more of the following-
    1. dismissal;
    2. demotion, including a reduction in remuneration; Examples of demotion of a local government employee-
      • a reduction in the classification level of the local government employee’s employment and a corresponding change in the employee’s duties
      • a reduction in the local government employee’s level of remuneration within the classification level of the employee’s employment
    3. a deduction from salary or wages of an amount of not more than 2 penalty units;
  1. (d)
    a written reprimand or warning.

Note-

If the disciplinary action to be taken is dismissal, the dismissal must comply with the requirements that apply in relation to the local government employee under the Industrial Relations Act 1999, chapter 2A or 3.

  1. (2)
    A written reprimand or warning-
    1. must state the following-
      1. the employee’s conduct that is disapproved of;
      2. the remedial action needed to rectify the conduct;
      3. the period within which the remedial action is to be taken;
      4. the possible consequences for a repeat of the conduct by the employee; and
    2. is part of a local government employee’s employment record.

…

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee-
  1. (a)
    notice of the following-
  1. (i)
    the disciplinary action to be taken;
  2. (ii)
    the grounds on which the disciplinary action is taken;
  3. (iii)
    the particulars of conduct claimed to support the grounds; and
  1. (b)
    a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [15]
    It is convenient to deal with the Council's contentions first.

The Council's contentions

Is s 283 of the LG Regulation ultra vires?

  1. [16]
    The Council submits that:
  • because the LG Regulation is a statutory instrument and is subordinate legislation within the meaning of the Statutory Instruments Act 1992 ('the SI Act'), then, by virtue of:
  1. –section 21 of the SI Act, the LG Regulation is to be interpreted not to exceed powers conferred by s 197(2) of the LG Act; and
  1. –section 22 of the SI Act, s 197(2) of the LG Act enables a statutory instrument to be made with respect to any matter that:
  • is required or permitted to be prescribed by s 197(2) of the LG Act; or
  • is necessary or convenient to be prescribed for carrying out or giving effect to s 197(2) of the LG Act;[4]
  • the authorising law for s 283 of the LG Regulation is s 197(2) of the LG Act;[5]
  • section 197(2) of the LG Act authorises the making of a regulation prescribing when and the types of disciplinary action that may be taken against a local government employee;[6]
  • section 283 of the LG Regulation seeks to prescribe how disciplinary action may be taken;[7]
  • there is no authorisation for s 283 of the LG Regulation - setting out how disciplinary action may be taken - to be made under s 197(2) of the LG Act;[8]
  • by virtue of s 21(1) and s 21(2) of the SI Act, the LG Regulation operates to the full extent of, but not to exceed, the terms of the authorising law;[9]
  • the nature and purpose of s 197(2) of the LG Act and its substantial provisions set the limit to the power to make regulations[10] and, in the present case, the purpose of the authorising law could not be more simple or straightforward in that it was strictly limited to when and the types of disciplinary action that may be taken against a local government employee;[11] and
  • section 283 of the LG Regulation was not necessary or convenient to give effect to s 197(2) of the LG Act because there was no warrant to argue that s 283 of the LG Regulation was, objectively speaking, either necessary or convenient to seek to mandate 'how' the disciplinary process should be carried out.[12]
  1. [17]
    In response, Ms Bentzen submits that:
  • the Council's submission, that s 283 of the LG Regulation is ultra vires is made in the alternative to earlier submissions inviting the Commission to find that notice, albeit not written, was given;[13]
  • section 197 of the LG Act is the source of power authorising a chief executive officer to take disciplinary action against a local government employee;[14]
  • pursuant to s 197 of the LG Act, div 1, pt 3 of the LG Regulation sets out when disciplinary action might be taken and the type of disciplinary action that might be taken;[15]
  • the wording of s 283 of the LG Regulation clearly states that 'before the chief executive officer takes disciplinary action', it must take certain steps prescribed by law and that in terms of 'when' disciplinary action might be taken, it clearly provides that it can only be taken after the employee has been 'given notice of the grounds for disciplinary action';[16]
  • section 283 of the LG Regulation prescribes 'a mandatory step before the taking of disciplinary action';[17] and
  • the provision affords her with a right given by the LG Regulation to respond to a written notice and also affords her the right to bind the Council to the grounds set out in the written notice and bar the Council from later relying on any other ground or particular being advanced in any proceeding about the disciplinary action taken.[18]

Does the Commission have power to declare s 283 of the LG Regulation invalid?

  1. [18]
    When delegated legislation has been made, it is assumed to be valid.[19] However, it is within the power of a court to rule delegated legislation invalid.[20]
  1. [19]
    The Commission is established as a court of record in Queensland.[21] Chapter 11, pt 2, div 3, sub-div 2 of the Act deals with the Commission's jurisdiction. By s 448(1)(b)(i) of the Act, the Commission may hear and decide all questions '… arising out of an industrial matter.' That provision is one which fundamentally prescribes the jurisdiction of the Commission. In my view, the phrase 'arising out of', used in this context, means there is a material connection between the questions (which can be of law or fact) and the industrial matter.
  1. [20]
    The Commission has power to declare that the dismissal of a local government employee was invalid due to non-compliance with s 283 of the LG Regulation.[22] In addition, the determination of whether or not Ms Bentzen's dismissal was valid is an industrial matter because it affects or relates to the rights of the Council, and of Ms Bentzen, in respect of the disciplinary action (dismissal) taken against her by Mr Rayment.[23] Further, the question of whether Mr Rayment had to comply with s 283 of the LG Regulation is also a question arising out of Ms Bentzen's rights in respect of the disciplinary action taken against her by Mr Rayment. Similarly, whether or not s 283 of the LG Regulation was a valid law is a question of law arising out of those same rights.
  1. [21]
    The original jurisdiction conferred on the Commission by the Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or another Act.[24] There is nothing in the Act or the LG Act that affects the original and exclusive jurisdiction of the Commission:
  • to declare whether or not Ms Bentzen's dismissal was invalid; and
  • to determine all questions arising out of Ms Bentzen's rights in respect of the disciplinary action taken against her by Mr Rayment.
  1. [22]
    For these reasons, I am of the view the Commission can determine the validity of s 283 of the LG Regulation. Ms Bentzen does not contend otherwise.

Section 283 of the LG Regulation is valid

  1. [23]
    The LG Regulation is a statutory instrument within the meaning of the SI Act.[25]
  1. [24]
    The task confronting a court in determining the validity of delegated legislation involves three steps. It must:
  • determine the meaning of words used in the Act conferring power upon the body authorised to make delegated legislation;
  • determine the meaning of the delegated legislation; and
  • decide whether the delegated legislation falls within the power so conferred.[26]
  1. [25]
    Delegated legislation may be invalid because:
  • it purports to deal with a subject not within the scope of the power provided in the empowering Act; or
  • it may deal with the subject, but in a manner that exceeds the prescribed limits within which the legislation must fall. [27]
  1. [26]
    In both circumstances, the delegated legislation is described as ultra vires.[28]
  1. [27]
    When the LG Regulation was made, s 22 of Statutory Instruments Act 1992 provided:

22 Power to make statutory instrument under Act etc.

  1. (1)
    If an Act or statutory instrument (the authorising law) authorises or requires the making of a statutory instrument under the authorising law or an Act or statutory instrument (the other law), the power enables a statutory instrument to be made with respect to any matter that-
  1. (a)
    is required or permitted to be prescribed by the authorising law or other law; or
  2. (b)
    is necessary or convenient to be prescribed for carrying out or giving effect to the authorising law or other law.
  1. (2)
    Subsection (1) applies to the authorising law even though the authorising law also authorises the making of a statutory instrument for a particular purpose.
  2. (3)
    Power conferred by the authorising law to make a statutory instrument for a particular purpose is in addition to, and does not limit the effect of, power conferred by the authorising law to make a statutory instrument under the authorising law or other law unless the authorising law expressly provides otherwise.
  1. [28]
    Section 22 of the SI Act was referred to by the Court of Appeal in State of Queensland v Maryrorough Solar Pty Ltd[29] where Fraser JA[30] stated:
  1. [21]
    There is no issue in this appeal about the principles the primary judge considered to be applicable in a determination of the scope of a general grant of delegated legislative authority. The primary judge referred to Morton v Union Steamship Co of New Zealand Ltd and Shanahan v Scott, which concerned the validity of regulations made under statutory powers in terms similar to s 22 of the Statutory Instruments Act. In Morton, the High Court described the power as one “to make regulations incidental to the administration of the Act” and held that it does not authorise “regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself”; “[t]he ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains” and “the degree to which the legislature has disclosed an intention of dealing with the subject” is an important consideration. In Shanahan, the High Court similarly concluded that “such a power does not enable the authority by regulations to extend the scope or general operation of the enactment” or to “widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.”[31]
  1. [29]
    I cannot accept the Council's arguments that s 283 of the LG Regulation is ultra vires.
  1. [30]
    True it is, consistently with s 197(2) of the LG Act, that s 279 of the LG Regulation prescribes when the chief executive officer may take disciplinary action against a local government employee; and that s 280 prescribes the types of disciplinary action that may be taken.
  1. [31]
    However, my view is that s 283 of the LG Regulation is one permitted to be made by virtue of s 22(1)(b) of the SI Act in that it was necessary or convenient to be prescribed for carrying out or giving effect to the discretion of the chief executive officer, pursuant to s 197(1) of the LG Act, to take disciplinary action against the local government employee.
  1. [32]
    Whether a regulation is necessary or convenient to be prescribed for carrying out or giving effect to the authorising law or other law is an objective test.[32]
  1. [33]
    In Shanahan v Scott, the plurality stated of a provision that empowers regulations to be made which are 'necessary or expedient' for carrying out the objects of the authorising Act:

The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.[33]

  1. [34]
    In general terms, when a statute confers power to destroy or prejudice a person's rights or interests, the principles of natural justice regulate the exercise of that power. All statutes are to be construed against the background of common law notions of justice and fairness. Thus, when a statute does not expressly require that the principles of natural justice be observed, a court construes the statute on the footing that the justice of the common law supply the omission of the legislature. The observance of the principles of natural justice is a condition attached to such statutory power and governs its exercise.[34]
  1. [35]
    Section 197(1) of the LG Act confers discretion on a chief executive officer to take disciplinary action against a local government employee. By s 283(1) of the LG Regulation, before the chief executive officer takes such disciplinary action, the chief executive officer must give the employee notice of the disciplinary action to be taken, the grounds on which the disciplinary action is taken and the particulars of the conduct claimed to support the grounds. Further, the employee must be given a reasonable opportunity to respond to the information contained in the notice. By its content, s 283(1) of the LG Regulation expressly prescribes how the chief executive officer must exercise the obligation to observe natural justice, in respect of the employee, when taking disciplinary action against the employee.
  1. [36]
    For the above reasons, s 283(1) of the LG Regulation was necessary to give effect to the power of a chief executive officer to take disciplinary action against a local government employee.
  1. [37]
    In the alternative, for the same reasons, s 283 of the LG Regulation was, at the very least, convenient, to be prescribed to give effect to the power of the chief executive officer to take disciplinary action against a local government employee, in that it was incidental to the execution of that power by a chief executive officer.
  1. [38]
    In my opinion, the scope and purpose of s 197(1) of the LG Act and s 283 of the LG Regulation are mutually inclusive. As a result, s 283(1) of the LG Regulation, in respect of s 197(1) of the LG Act, does not impermissibly:
  • extend its scope or general operation; or
  • widen its purpose; or
  • depart from or vary its purpose.
  1. [39]
    I reject the Council's contention that s 283 of the LG Regulation was not necessary or convenient to give effect to s 197(2) of the LG Act because there was no warrant to argue that s 283 of the LG Regulation was, objectively speaking, necessary or convenient to seek to mandate how the disciplinary process should be carried out. The measures prescribed by s 283(1) of the LG Regulation, for the reasons given above, are, at the very least, incidental to disciplinary action being taken by a chief executive officer against a local government employee. This is because the measures in s 283(1) of the LG Regulation ensure that any disciplinary action is taken in a way that is procedurally fair.
  1. [40]
    The Council also contended that provisions as to how disciplinary processes were to occur, whilst routinely found in workplace policies and procedures, were less likely to be found in certified agreements and even less likely in awards, which meant that it was neither necessary nor convenient to prescribe how and the type of disciplinary action which may be taken in a statutory instrument.[35]
  1. [41]
    For the reasons given above, I cannot accept that submission. Further, such regulation is not unique in public sector employment in Queensland. In respect of Queensland public service officers, public service employees and another employees of certain public service offices, a statutory instrument[36] does prescribe how disciplinary action, to be taken by chief executives of State government departments and certain public service offices, pursuant to s 188 of the Public Service Act 2008, is to occur.
  1. [42]
    For these reasons, s 283 of the LG Regulation is valid.

Did the Council have to give Ms Bentzen written notice of the matters referred to in s 283(1)(a) of the LG Regulation?

  1. [43]
    In summary, the Council submits:
  • section 33 of the Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 ('the 2018 Amendment Act') amended the definition of 'notice' in the dictionary to the LG Act to define 'notice' to mean '… a written notice';[37]
  • the amendment to the definition of 'notice' in the LG Act was made for the purpose of introducing a comprehensive system with respect to Councillor complaints[38] with the manifest purpose of the new system being that relevant notices were in writing;[39]
  • the purpose of the amendment to the definition of 'notice' in the LG Act made by the 2018 Amendment Act was confirmed by the Explanatory Notes to the Local Government Legislation (Councillor Complaints and Other Matters) Amendment Regulation 2018 ('the 2018 Amendment Regulation') which provided:

Amendments to the Local Government Regulation 2012 (LGR) are required to ensure the new Councillor complaint system is fully operational on its commencement and to ensure consistency between the LGR and the LGA[40]

  • upon the making of the 2018 Amendment Regulation, the term 'notice' remained in s 283(1)(a) of the LG Regulation, and the word 'written' was omitted;[41] and
  • the dictionary to the LG Regulation does not include a definition of 'notice'.[42]
  1. [44]
    The Council further submitted that s 37 of the SI Act:
  1. Part 4, Division 3, subdivision 4 of the SIA[43] deals with terms and references in statutory instruments.
  1. Section 37 of the SIA relevantly provides that:

"Words and expressions used in a statutory instrument have the same meanings as they have…in the Act…(the authorising law), or relevant provisions of the authorising law, under which the statutory instrument is made or in force."

  1. The only provision of the authorising law to which regard should be had is section 197(2) of the LGA. It is, to adopt the terms of section 37 of the SIA, the relevant provision of the authorising law.
  1. In the result, it is the words of section 283 of the LGR which fall to be construed and applied.
  1. Section 283 of the LGR requires notice not written notice.
  1. [45]
    Ms Bentzen submitted that:
  • the 2018 Amendment Act:
  1. –removed the word 'written' from the term 'written notice' in some 25 sections of the LG Act; and
  1. –amended the dictionary in sch 4 to the LG Act to include a definition of the noun 'notice', namely '… notice means a written notice';
  • the 2018 Amendment Regulation omitted the word 'written' from the term 'written notice' in relation to five sections, the Explanatory Notes to the 2018 Amendment Regulation stated, in part, that they were minor consequential amendments, and the remaining sections of the 2018 Amendment Regulation updated references and amended or omitted definitions in the LG Regulation on the commencement of the new Councillor complaint system; and
  • removing the word 'written' from the term 'written notice' was simply to ensure consistency between the LG Act and its regulations, which is also consistent with s 283(1)(b) of the LG Regulation which provides that before a chief executive officer takes disciplinary action against a local government employee, a chief executive officer must give the employee notice and '… a reasonable opportunity to respond to the information contained in the notice.'[44]
  1. [46]
    I cannot accept the Council's submissions on this point.
  1. [47]
    It was the case, as the Council submits, that the policy objective of the 2018 Amendment Act was:

[T]o implement the Government’s response to the Independent Councillor Complaints Review Panel’s Report ‘Councillor Complaints Review: A fair, effective and efficient framework’ (the Councillor Complaints Report) to provide for a simpler, more streamlined system for making, investigating and determining complaints about councillor conduct in Queensland.[45]

  1. [48]
    Further, as from 3 December 2018,[46] the 2018 Amendment Act introduced into the dictionary to the LG Act the following definition: '… notice means a written notice'.[47]
  1. [49]
    Immediately prior to the commencement of the 2018 Amendment Regulation which was 3 December 2018,[48] s 283(1) of the LG Regulation provided that before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee 'written notice' of the matters described. Section 18 of the 2018 Amendment Regulation removed the adjective 'written' from s 283(1) of the LG Regulation. The noun 'notice' was not defined in the LG Regulation as it existed as at August 2019.
  1. [50]
    However, as Ms Bentzen submits:
  • the 2018 Amendment Act[49] omitted 'written' from the phrase 'written notice' from 24 other pre-existing sections in the LG Act, as from 3 December 2018;[50] and
  • the 2018 Amendment Regulation omitted 'written' from the phrase 'written notice' from five other pre-existing sections in the LG Regulation, including s 283(1)(a) and (b), as from 3 December 2018.[51]
  1. [51]
    Because the 2018 Amendment Act and the 2018 Amendment Regulation omitted the word 'written' from the phrase 'written notice' in sections of both instruments that had nothing to do with complaints about Councillor conduct in Queensland, I cannot accept the Council's submission that the amendment to the definition of 'notice' in the LG Act was made for the purpose of introducing a Councillor complaints system, such that any other notices required under the LG Regulation did not have to be in writing.
  1. [52]
    Indeed, the Explanatory Notes for the 2018 Amendment Regulation relevantly provided:

Minor consequential amendments

The remaining sections of the Regulation update references and amend/omit definitions in the LGR to ensure consistency with the LGA on the commencement of the new Councillor complaints system.[52]

  1. [53]
    In addition, there is nothing in the Explanatory Notes for the 2018 Amendment Regulation that indicated that the amendment to the LG Regulation, by omitting the words 'written' from s 283(1)(a) and (b), was to substantively change the process that a chief executive officer must observe prior to taking disciplinary action against a local government employee.
  1. [54]
    Furthermore, s 37 of the SI Act provides:

37 Words and expressions

Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in the Act or statutory instrument (the authorising law), or relevant provisions of the authorising law, under which the statutory instrument is made or in force.

  1. [55]
    Given the amendments referred to above, the definition of 'notice' given in sch 4 to the LG Act, namely, 'written notice', together with the operation of s 37 of the SI Act, my opinion is that where the noun 'notice' appears in the LG Regulation, unless the contrary intention appears,[53] it means written notice. This includes the use of the noun 'notice' in s 283(1) of the LG Regulation. There is no contrary intention expressed in s 283(1) of the LG Regulation. Indeed, the words of s 283(1)(b), that the employee must be given a reasonable opportunity to respond to the information '… contained in the notice', seems to confirm this construction.
  1. [56]
    Mr Rayment was required to give Ms Bentzen written notice of the matters referred to in s 283(1)(a) of the LG Regulation. Furthermore, Mr Rayment then had to give Ms Bentzen a reasonable opportunity to respond to the information contained in the written notice as required by s 283(1)(b) of the LG Regulation.

Was the Council required to comply with s 283 of the LG Regulation if Ms Bentzen engaged in repeated misconduct which warranted summary dismissal?

  1. [57]
    The Council submits that:
  • Ms Bentzen was '… summarily dismissed for misconduct';[54] and
  • the serious misconduct for which Ms Bentzen was dismissed '… had been brought to her notice repeatedly between in or about March 2019, and her dismissal on 22 August 2019.'[55]
  1. [58]
    The Council contends that if s 283 of the LG Regulation was valid and if, before a chief executive officer takes disciplinary action against the local government employee, the chief executive officer must give the employee written notice of the matters referred to in s 283(1)(a) of the LG Regulation, then it (the Council) was not required to comply with s 283 of the LG Regulation because Ms Bentzen engaged in repeated misconduct which warranted summary dismissal at law.[56]
  1. [59]
    Specifically, the Council contends that the requirements in s 283(1) and s 283(2) of the LG Regulation exclude the operation of the common law and that the notice described in s 283(1) of the LG Regulation was not required to be given.[57]
  1. [60]
    Ms Bentzen submits that:
  • having regard to the decision of Martin J, President of the Industrial Court of Queensland, in Promnitz v Gympie Regional Council ('Promnitz'), the only circumstance where s 279 of the LG Regulation would not apply would be in respect of an offence committed by a local government employee unconnected with the LG Act;[58] and
  • she was not summarily dismissed, rather the Council specifically relied on the LG Act and the LG Regulation as grounds for taking the disciplinary action it took against her such that s 279 of the LG Regulation was engaged.[59]
  1. [61]
    While, for the reasons that I give later, Ms Bentzen was not summarily dismissed, I cannot accept the Council's submissions.
  1. [62]
    The authority for the Council's proposition is the decision in Promnitz[60] where Martin J, President, relevantly stated:
  1. [22]
    I have already dealt, in part, with this issue. It is apparent from the words of s 278 that Division 1 of Part 3 is intended to set out the actions which may be taken by a chief executive officer so far as discipline is concerned. The parts of that Division allow for different types of disciplinary action such as deductions from salary and suspension of employees in certain circumstances. The consequences for an employee can, obviously, be dire. The words of Division 1 of Part 3 do not purport to cover all circumstances in which an employee might be subject to discipline or to termination. The ambit is confined by the reference in s 279 to responsibilities or actions “under the Act”. Thus, for example, it would not cover circumstances where an employee might be found guilty of an offence unconnected with the Local Government Act 2009. If the offence was sufficiently serious, then the chief executive officer might be justified in terminating employment and the ordinary law would apply.
  1. [23]
    This Division is not concerned with actions of an employee which fall outside the categories in s 279 and so does not add another layer of control to all the matters which might justify an employer taking some form of action against an employee. The fact that it is restricted in that way contributes to a conclusion that invalidity would follow non-compliance with the terms of Division 1.
  1. [63]
    As I read his Honour's decision, the critical question, in respect of whether the requirements under ch 8, pt, 3, div 1 of the LG Regulation are mandatory, is whether disciplinary action is taken against a local government employee by reference to their responsibilities or actions under the LG Act.
  1. [64]
    Section 279 of the LG Regulation provides that the chief executive officer may take disciplinary action against the local government employee if satisfied the employee has:
  • failed to perform their responsibilities under the LG Act; or
  • failed to perform a responsibility under the LG Act in accordance with the local government principles; or
  • taken action under the LG Act in a way that is not consistent with the local government principles.
  1. [65]
    The dictionary to the LG Act provides that the phrase 'local government principles' means the principles expressed in the form of outcomes set out in s 4(2) of the LG Act, namely:

(2)The local government principles are-

  1. (a)
    transparent and effective processes, and decision-making in the public interest; and
  2. (b)
    sustainable development and management of assets and infrastructure, and delivery of effective services; and
  3. (c)
    democratic representation, social inclusion and meaningful community engagement; and
  4. (d)
    good governance of, and by, local government; and
  5. (e)
    ethical and legal behaviour of councillors, local government employees and councillor advisors.
  1. [66]
    The reasons given by Mr Rayment for Ms Bentzen's dismissal were:
  • her negligence, ineffective, inefficient and uneconomic management of the TYTO Community Centre, which was the location of the restaurant the subject of the lease; and
  • her negligent mismanagement concerning:
  1. –Environment and Waste matters;
  1. –Planning and Development matters;
  1. –performance management of Manager Community and Economic Development;
  1. –a lack of direction and actioning of capital works projects and initiatives; and
  1. –a demonstrated lack of ability to manage and execute the scope of her areas of responsibilities.
  1. [67]
    Mr Rayment stated that the decision that Ms Bentzen's '… continued employment had become untenable' was made against the contents of the obligations and standards of work performance either stipulated or regulated by her contract of employment, financial management responsibilities contained in her current position description, the Council's Code of Conduct and her '… responsibilities in accord [sic] with Section 13 (2) of the Queensland Local Government Act 2016 [sic].'
  1. [68]
    In 2019, s 13(2) of the LG Act provided:

(2) All employees have the following responsibilities-

  1. (a)
    implementing the policies and priorities of the local government in a way that promotes-
  1. (i)
    the effective, efficient and economical management of public resources; and
  2. (ii)
    excellence in service delivery; and
  3. (iii)
    continual improvement;
  1. [69]
    Ms Bentzen was not dismissed because of any conduct on her part which was unconnected with the LG Act. Ms Bentzen was dismissed because Mr Rayment was satisfied that Ms Bentzen had failed to perform her responsibilities under the LG Act in accordance with the local government principles, namely, she did not implement the policies and priorities of the Council in a way that promoted the effective, efficient and economical management of the Council's public resources. Those matters were expressly stated by Mr Rayment in the fourth,[61] ninth,[62] tenth[63] and seventeenth[64] paragraphs of his letter dated 22 August 2019.
  1. [70]
    Given Mr Rayment's express reasons for dismissing Ms Bentzen, he was required to comply with ch 8, pt 3, div 1 of the LG Regulation in taking disciplinary action against her.

Ms Bentzen's contentions

  1. [71]
    Ms Bentzen submits that:
  • the Commission has power to make the declaration she seeks because the Commission has discretion to make a declaration about an industrial matter;[65]
  • if the declarations she seeks are made, then it would bind other proceedings under the Act which would render her unfair dismissal claim redundant due to the fact that the purported termination would be set aside and that she would have all the rights and entitlements available to her as a continuing employee;[66] and
  • Mr Rayment did not comply with the mandatory provisions of the LG Act and s 283 of the LG Regulation in that the facts are he did not give her written notice of the grounds on which the disciplinary action was taken, the particulars of the conduct claimed to support the grounds and a reasonable opportunity to respond to the information contained in the written notice.[67]
  1. [72]
    In response, the Council submits that, in respect of compliance with s 283(1) of the LG Regulation:
  • Mr Rayment, in his meeting with Ms Bentzen on 2 August 2019:
  1. –notified her that the disciplinary action was termination of her employment;[68] and
  1. –notified her, in detail, of the grounds on which the disciplinary action was to be taken;[69] and
  • Mr Rayment notified her of the particulars of the conduct claimed to support the grounds in their meeting on 2 August 2019,[70] through the memoranda exchanged between them on 25 June, 26 June and 4 July 2019 and through Councillor Andrew Cripps' email to Ms Bentzen dated 2 July 2019.[71]
  1. [73]
    The Council also submits that the grounds on which the disciplinary action was taken, and the particulars of those grounds, must be considered in light of the numerous communications between Mr Rayment and Ms Bentzen between in or about March 2019 and 2 August 2019 and that Mr Rayment had raised the issue of the unpaid rent in respect of the restaurant with Ms Bentzen many times and had directed her to take remedial action in respect of it on an urgent basis.[72]
  1. [74]
    The Council further submits that:
  • in relation to the issue of the unpaid rent from the restaurant, given Ms Bentzen had been on notice about that matter in the five to six months after March 2019, she was comprehensively aware of the matter and the issues Mr Rayment had with her in relation to that matter;[73] and
  • Ms Bentzen was given a reasonable opportunity to respond because:
  1. –sufficient time was devoted to the matter in the meeting on 2 August 2019, to enable her to apprehend what was being said against her work performance and to respond;
  1. –she was an Executive Manager who knew or ought to have known her rights to request a further and/or better opportunity to discuss any of the matters in the meeting; and
  1. –Mr Rayment suggested that she may wish to consider some sort of settlement proposal which included a resignation, which was an offer left open until 9 August 2019 during which time Ms Bentzen had an opportunity to address each and every matter discussed in the meeting as she saw fit, which she elected not to do.[74]
  1. [75]
    For those reasons, the Council submits that Ms Bentzen's dismissal, in respect of s 283 of the LG Regulation was not attended by any invalidity.[75]

What is the effect of s 283 of the LG Regulation?

  1. [76]
    The decision of Martin J, President, in Promnitz authoritatively establishes that:
  • the provisions of s 283 of the LG Regulation are designed to provide an employee with notice of the allegations made against him or her and the action which is proposed to be taken on the basis of those allegations, and to then give that employee a reasonable opportunity to respond to the information contained in the written notice and it is a requirement which is intended to allow a person to make representations relevant to the decision;[76]
  • section 283 of the LG Regulation:
  1. –is in mandatory form;
  1. –is confined to actions under the LG Act; and
  1. –affords a right to an employee to be told of the allegations and to be given an opportunity to respond;[77] and
  • the proper construction of s 283 of the LG Regulation is that a failure to give a notice in the terms set out in that section results in the invalidity of any action taken by a local authority with respect to discipline under ch 8, pt 3, div 1 of the LG Regulation.[78]
  1. [77]
    The Council does not contend that I am not bound by Promnitz.
  1. [78]
    For the reasons given, Mr Rayment had to comply with s 283 of the LG Regulation before dismissing Ms Bentzen.

Mr Rayment did not comply with the mandatory requirements of s 283 of the LG Regulation before dismissing Ms Bentzen with the result that her dismissal was invalid

  1. [79]
    Prior to her dismissal, Mr Rayment did not give Ms Bentzen written notice of:
  • the disciplinary action to be taken against her;
  • the grounds on which the disciplinary action is taken; and
  • the particulars of the conduct claimed to support the grounds.[79]
  1. [80]
    To the extent that it is claimed Mr Rayment provided Ms Bentzen with notice of the matters referred to in s 283(1)(a) of the LG Regulation in their meeting on 2 August 2019, then it is clear that Mr Rayment did not comply with the mandatory requirements. That information had to be provided by way of written notice.
  1. [81]
    Similarly, I do not accept the Council's submissions that Ms Bentzen was provided with written notice of the matters referred to in s 283(1)(a) of the LG Regulation by Mr Rayment's email to her dated 26 June 2019. That email, set out later in these reasons, contained instructions to Ms Bentzen to investigate and report on why the rent had not been received from the lessees and to provide a resolution of the issue. Similarly, the email from Councillor Cripps dated 2 July 2019, summarised later in these reasons, did not set out the matters referred to in s 283(1)(a) of the LG Regulation.
  1. [82]
    Mr Rayment did not comply with s 283(1)(a) of the LG Regulation prior to dismissing Ms Bentzen. Consequently, Mr Rayment did not comply with s 283(1)(b) of the LG Regulation.
  1. [83]
    The result is that Ms Bentzen's dismissal was invalid.

Should a declaration be made that Ms Bentzen's dismissal was invalid?

  1. [84]
    The Commission has power to declare that the dismissal of a local government employee was invalid due to non-compliance with s 283 of the LG Regulation. This is because, pursuant to s 463(1) of the Act, the Commission may, on application made by a person who may be directly affected by the declaration,[80] make a declaration about an industrial matter.
  1. [85]
    The question of whether or not Ms Bentzen's dismissal was valid is an industrial matter and Ms Bentzen is a person who would be directly affected by such a declaration.
  1. [86]
    The reasons given by the Council as to why a declaration that Ms Bentzen's dismissal was invalid should not be made are that:
  • if the Commission simply declared her dismissal invalid, then without more, Ms Bentzen would effectively be reinstated, and if that were to occur all that would happen is that the Council would remedy whatever invalidity was found and proceed to conduct the necessary process and that '… the outcome, without any prejudgement, bias, lack of natural justice, or procedural fairness, would be precisely the same';[81] and
  • the above would occur because the facts 'are what they are', they have now been tested at trial and cannot be explained away and in respect of which, during cross-examination, Ms Bentzen made no fewer than 28 admissions against interest with respect to matters which amounted to serious misconduct.[82]
  1. [87]
    I cannot accept these submissions.
  1. [88]
    First, the power to make a declaration should not be exercised lightly and should be confined to the resolution of genuine disputes.[83] There is a genuine dispute between the Council and Ms Bentzen about the validity of her dismissal.
  1. [89]
    Secondly, ch 11, pt 5, div 3 of the Act deals the conduct of proceedings before the Commission. Section 531(3) of the Act, which is found within that division, relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.
  1. [90]
    The phrase '… good conscience and the substantial merits of the case' means that the Commission must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met and permits resort to a common sense judgment in all the circumstances, but does not allow the making of new law.[84]
  1. [91]
    In my opinion, the purpose of the procedures in s 283(1) of the LG Regulation is to ensure that natural justice is observed prior to disciplinary action being taken against a local government employee. It is a requirement of fairness, so that when a decision is to be made '… which will deprive a person of some right or interest or the legitimate expectation of a benefit, [the person] is entitled to know the case sought to be made against [them] and to be given an opportunity of replying to it.'[85]
  1. [92]
    I would not be acting in good conscience and I would be ignoring the substantial merits of the case, if I was not to issue a declaration that Ms Bentzen's dismissal was invalid, on

the basis that the Council's present position is that, upon Ms Bentzen's effective reinstatement and the Council subsequently complying with s 283(1) of the LG Regulation, Ms Bentzen would again be dismissed. This is because:

  • as a matter of law, Mr Rayment was required to comply with s 283(1) of the LG Regulation in the first place and he did not;
  • if Ms Bentzen's employment with the Council is to again be subject to disciplinary action, then the mandatory processes set out in s 283(1) of the LG Regulation must be observed so that she knows the case against her and is given an opportunity to reply; and
  • in complying with the processes prescribed by s 283(1) of the LG Regulation, the Chief Executive Officer may be persuaded that Ms Bentzen did not engage in serious misconduct, or in the alternative, that if she did engage in some conduct which was inconsistent with her obligations under the LG Act, dismissal may not be the proportionate disciplinary action to be taken.
  1. [93]
    For these reasons, a declaration that Ms Bentzen's dismissal was invalid will be made.

Other relief sought by Ms Bentzen

The claims that s 289 of the Act was contravened

  1. [94]
    Ms Bentzen also claimed that 'the Respondent' contravened s 289 of the Act by:
  • providing written notice to her on 22 August 2019 that her dismissal was effective on 6 August 2019; and
  • filing in the Commission, on 3 September 2019, a Form 12A Employer Response to her application for reinstatement stating that her dismissal was effective on 2 August 2019.
  1. [95]
    Ms Bentzen sought affirmative declarations, pursuant to s 463 of the Act, about these two claims and an order that the Council pay a pecuniary penalty for the alleged contraventions of s 289 of the Act.
  1. [96]
    The Council submits that Ms Bentzen's claim that s 289 of the Act has been contravened is misconceived because she does not identify the workplace right relied upon, such that there is no misrepresentation of any kind.[86]
  1. [97]
    Section 289 of the Act provides:

289 Misrepresentations

  1. (1)
    A person must not knowingly or recklessly make a false or misleading representation to another person about-
  1. (a)
    the workplace rights of the other person or a third person; or
  2. (b)
    the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.

Note-

This subsection is a civil penalty provision.

  1. (2)
    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
  1. [98]
    As submitted by the Council, the type of misrepresentation prohibited by s 289 of the Act is about the workplace rights of the other person or the exercise, or the effect of the exercise, of a workplace right by the other person.
  1. [99]
    Section 284 of the Act defines when a person has a workplace right and provides:

284 Meaning of workplace right

  1. (1)
    A person has a workplace right if the person-
  1. (a)
    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
  2. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  3. (c)
    is able to make a complaint or inquiry-
    1. to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
    2. if the person is an employee-in relation to his or her employment.
  1. (2)
    In this section-

industrial body means-

  1. (a)
    the commission; or
  2. (b)
    the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.
  1. [100]
    At no point has Ms Bentzen, in any application presently before me or in her submissions, clearly articulated, by reference to s 284 of the Act, the workplace right upon which these particular claims proceed. The closest was her submission that Mr Rayment '… made misrepresentations as to' her employment.[87] Apart from reiterating the relief she sought, Ms Bentzen did not respond to the Council's submissions about these claims in her submissions in reply. The claims by Ms Bentzen are too vague. The misrepresentation Ms Bentzen claims Mr Rayment made does not, in my view, amount to a misrepresentation about her workplace rights or the exercise or the effect of the exercise of a workplace right she possessed.
  1. [101]
    For these reasons, I will not make the declarations and other orders Ms Bentzen seeks about these matters.

The s 283(2) of the LG Regulation claim

  1. [102]
    Ms Bentzen also seeks an order, pursuant to s 283(2) of the LG Regulation, that the Council be restrained from relying on any ground or particular being advanced '… in this proceeding' (namely, the proceeding that her dismissal was unfair) that was not advanced in a written notice to her pursuant to the mandatory provisions of s 283(1) of the LG Regulation.
  1. [103]
    Ms Bentzen submitted that she would only press this claim if she was unsuccessful in obtaining a declaration that her dismissal was invalid due to non-compliance with s 283(1) of the LG Regulation.[88] I will make a declaration that her dismissal was invalid. However, later in these reasons, I will deal with the effect of s 283(2) of the LG Regulation as it relates to Ms Bentzen's claim that her dismissal was unfair.

Was Ms Bentzen's dismissal harsh, unjust or unreasonable?

  1. [104]
    Ms Bentzen submitted that if I did not declare her dismissal invalid, she claimed, in the alternative, that her dismissal was harsh, unjust or unreasonable.[89] In case I am wrong in my conclusion that Ms Bentzen's dismissal was invalid, I will consider this alternative claim.

The undisputed facts

Ms Bentzen's responsibilities

  1. [105]
    Ms Bentzen commenced in the EMDPES position on 1 July 2017.[90] Ms Bentzen reported directly to Mr Rayment in her role which required her to oversee a number of employees within the Council's Department of Development, Planning and Environmental Services of which there were approximately 61 employees.
  1. [106]
    In the course of exercising its functions as a local government, the Council operates the TYTO precinct in Ingham which is situated in the TYTO wetlands.[91]
  1. [107]
    Relevantly, Ms Bentzen's position description:
  • provided that she was responsible for:
  1. –efficiently and effectively managing those areas identified in the Development and Planning organisational structure, including, but not limited to, the functional areas of Economic Development, Town Planning, TYTO Precinct, Sport and Recreation, Local, Regional, State and Federal Partnerships and Support, State and Federal Advocacy and Topical Grant Opportunities; and
  1. –contributing to the whole of organisation agenda inclusive of, but not limited to, the delivery of operational and corporate plans, change management, organisational culture development, asset management, policy and procedure development and execution, financial management, other community plans such as economic prosperity, the planning scheme, human resources agenda and workplace health and safety initiatives;[92] and
  • stated that her key responsibilities were:
  1. –to ensure accurate, complete and relevant information was provided to the Council at all times;
  1. –to have overall management responsibility for:
  • the TYTO precinct;
  • Town Planning;
  • Economic Development;
  • Local, Regional, State and Federal Partnerships and Support;
  • Stated Federal Advocacy;
  • Topical Grant Opportunities;
  • Sport and Recreation;
  1. –to deliver sound management of Council resources; and
  1. –to ensure that all programs for which her position has overall responsibility were financially managed and that all projects were delivered within budget.[93]
  1. [108]
    A key responsibility of Ms Bentzen's position was the overall management responsibility for the TYTO precinct.[94]

The lease for the restaurant and the discovery of the unpaid rent

  1. [109]
    On 11 January 2017, a three year lease, in respect of premises owned by the Council forming part of the TYTO precinct, was executed between the Council and the lessees for the purposes of operating the restaurant.[95] The annual rent agreed was $13,000 per annum.[96]
  1. [110]
    Ms Bentzen's evidence was that around early March 2019:
  • she found that monthly invoices for the restaurant had not been sent;[97]
  • she told the Land Dealing Administration Officer that she would investigate the 'Enrico's Matter' further and asked her to prepare a memo for Mr Rayment advising what had been found;[98] and
  • due to the history of difficulties with the previous lessees at the TYTO facility, she wanted to check all records prior to speaking with the lessees due to the sensitive nature of the situation, she did not want to create a public relations problem by falsely invoicing them in case there was an earlier agreement in place prior to her taking over responsibility for the leases on 1 July 2017, particularly when the employees who dealt with the lease were no longer employed by the Council as from June 2017.[99]
  1. [111]
    Ms Bentzen's evidence was that the Planning and Development Manager, Mr Gerhard Visser, was responsible for handling the commercial and trustee leases, including the restaurant's lease, since 1 July 2017; but that, at the time she discovered that the lessees were not being invoiced for the lease, she was unable to speak to Mr Visser because he had been on annual leave since February 2019.[100]
  1. [112]
    Ms Bentzen then went on annual leave from 14 March 2019 to 1 April 2019[101] and on or around 8 April 2019, she was made aware that Mr Visser was resigning.[102] It appears that Ms Bentzen had no discussion with Mr Visser about the non-invoicing of the lessees prior to his resignation.[103]
  1. [113]
    On 4 June 2019, Ms Bentzen attended an Economic Development Portfolio meeting of Councillors in which the lease for the restaurant was discussed and in which Ms Bentzen advised that:
  • there was $25,000 in rent outstanding; and
  • she was investigating the issue and she would discuss the matter further with

Mr Rayment.[104]

  1. [114]
    In June 2019, the Mayor of the Council was Mr Ramon Jayo. Mr Jayo's evidence was that on 7 June 2019, after receiving information from community members, he forwarded an email to Mr Rayment stating his belief that the lease was not presented to the Council for confirmation, no rent had been paid by the lessees and that the Council may have also been paying for the electricity utilised through the restaurant.[105]
  1. [115]
    By memorandum dated 25 June 2019, Ms Bentzen advised Mr Rayment that:
  • the lease, which was attached to the email, was due to expire in February 2020;
  • the lease was not registered with the titles office, '… however, this is not an issue as Council owns the land';
  • while reviewing the current lease, it came to her attention that the Council sent invoices to the lessees from February to July 2017, however, no further invoices for rental had been sent from July 2017 and she was unable to ascertain why they were not sent;
  • the outstanding amount, up to 5 June 2019, was $26,216.75; and
  • she was currently investigating and would advise further in due course.[106]
  1. [116]
    By memorandum to Ms Bentzen dated 26 June 2019, Mr Rayment stated:

Further to our recent conversations and your Memo dated 25 June 2019, it is extremely disappointing that such an occurrence has been identified and even harder to ascertain that this has not been discovered since the Agreement commenced in November 2016.

It is paramount that you continue with your investigation in order to provide:

  1. Reasons why the situation has occurred; and
  1. A planned solution in order to move forward in an effective manner.

In addition to understanding the lease payment situation, can you also investigate whether electricity charges utilised through the restaurant during this time has been separately metered and subsequently charged to the Lessee.

I understand there is a link with our Finance and Corporate Services departmental staff, I trust that you will liaise with respective personnel in order to finalise your report.

It is imperative that this investigation is undertaken as a matter of urgency.[107]

  1. [117]
    Ms Bentzen's evidence then is that:
  • before a number of Councillor Portfolio meetings scheduled for 2 July 2019, she emailed the Chief Financial Officer (who was on leave from 28 June to 8 July 2019) asking why the invoices had not been sent to the lessees;[108]
  • in the week beginning 2 July 2019, she was told by the Acting Chief Financial Officer that the reason the invoices had not been sent was that '… the lease had not been registered on the title', to which Ms Bentzen responded by stating: 'I should have been told sooner';[109] and
  • on 2 July 2019, she attended Councillor Portfolio meetings, attended by, amongst other Councillors, Councillor Cripps, where the restaurant lease was discussed.[110]
  1. [118]
    On 2 July 2019, Councillor Cripps emailed Ms Bentzen referring to their conversations that afternoon regarding the failure of the Council to issue invoices to the lessees. Councillor Cripps stated that he had spoken to Councillor Mary Brown about the issue and that, amongst other matters, they suggested that Ms Bentzen write to the lessees setting out the situation and seek a face-to-face meeting before Ms Bentzen went on leave.[111]
  1. [119]
    Ms Bentzen's evidence was that on 2 and 3 July 2019, she made several telephone calls to the restaurant to arrange a meeting with the lessees.[112]
  1. [120]
    On 4 July 2019, Ms Bentzen did make contact with Ms Mingon to seek a meeting with her and Mr Mingon.[113] Ms Bentzen reported the outcome of that conversation to Mr Rayment in an email sent on 4 July 2019. In that email, Ms Bentzen reported that:
  • Ms Mingon was aware that the Council had not been sending any invoices and recognised that monies were outstanding;
  • Ms Mingon confidentially advised that she and Mr Mingon intended to close the restaurant as from 8 July 2019, as the business was not profitable, and asked that the Council not send any invoice for the outstanding amount as they would like to have a meeting after the closure of the restaurant to discuss the options for payment; and
  • she (Ms Bentzen) advised Ms Mingon that she was going on leave at the end of the week and would not be able to meet in the following week, but that Mr Rayment may wish to meet with Ms Mingon and Mr Mingon in the following week.[114]
  1. [121]
    Ms Bentzen then commenced annual leave on 8 July 2019.
  1. [122]
    On 15 July 2019, the lessees formally advised the Council of the closure of the restaurant.[115] Ms Bentzen returned to work on 29 July 2019,[116] but was then absent on sick leave on 1 August 2019.[117]

The meeting on 2 August 2019 between Mr Rayment and Ms Bentzen

  1. [123]
    On 2 August 2019, Mr Rayment met with Ms Bentzen.

The events following the meeting on 2 August 2019

  1. [124]
    On 5 August 2019, Ms Bentzen took a rostered day off as agreed with Mr Rayment at the meeting on 2 August 2019.[118] On that day, Ms Bentzen consulted her General Practitioner in respect of which she was provided with a medical certificate.[119] Ms Bentzen was absent from work on 6 and 7 August 2019 due to illness.[120]
  1. [125]
    At 8.32 am on 7 August 2019, Ms Bentzen, following an earlier text to Mr Rayment, emailed him confirming that she was unwell and that she would not be coming into work that day. In that email, Ms Bentzen stated that she would speak to Mr Rayment about '… last Friday's matter when I am back at work' and if there is anything he needed her to follow-up, he should send her an email or text and she would get back to him when she could.[121]
  1. [126]
    At 6.08 pm on 7 August 2019, Mr Rayment emailed Ms Bentzen stating:

I refer to your text and subsequent email of earlier today.

As you know, I met with you last Friday and fully discussed the two Options open to resolve this matter.

The First Option was Council's willingness to accept a Resignation with appropriate confidentiality arrangements. The Second Option was the alternative to your Resignation.

I held that meeting and discussion out of respect for you as a person. For those same reasons of respect, I am not responding via text.

I am again repeating that the First Option currently remains open.

I therefore invite you to respond to this issue with me for the good of both yourself and the organisation.

My availability remains open and willingness to meet with you at a time suitable to yourself either on or before 10.00am this Friday 9 August 2019.[122]

  1. [127]
    On 8 August 2019:
  • Ms Bentzen forwarded a medical certificate to Mr Rayment, completed on 5 August 2019, which stated that she was receiving medical treatment from 5 August 2019 to 16 September 2019 inclusive and would be unfit to continue her usual occupation for that period of time;[123] and
  • after forwarding Mr Rayment's email dated 7 August 2019 to the Union,[124] Ms Bentzen's Union representative forwarded an email to Mr Rayment:
  1. –requesting that Ms Bentzen not be contacted until she was fit to return to work; and
  1. –stating that Ms Bentzen was willing to discuss '… a Settlement Agreement with appropriate confidentiality provisions once she is feeling sufficiently well enough to do so.'[125]
  1. [128]
    By correspondence dated 8 August 2019 to the lessees, Mr Rayment advised that the lease was terminated effective 23 July 2019 and provided a copy of the outstanding rent due for the period of the operation of the lease.[126]
  1. [129]
    On 13 August 2019, the Council received advice from the Australian Financial Security Authority ('AFSA') that Mr Mingon was, as of 24 July 2019, bankrupt.[127]

The letter of dismissal dated 22 August 2019

  1. [130]
    By letter dated 22 August 2019, Mr Rayment informed Ms Bentzen of the termination of her employment effective from close of business 6 August 2019.
  1. [131]
    In that letter, Mr Rayment stated:

I refer to my formal meeting with you on Friday 2 August 2019 where I fully discussed with you, the Reports I had earlier received concerning the unpaid lease payments by Enrico's Restaurant which had been operating from and located at Council's TYTO Community Centre.

You were advised that this negligent mismanagement of that Lease and subsequent lack of diligent, effective, efficient and economical management of a public resource of Council, had caused no Monthly invoices being sent for payment since 22 August 2017 - a period of approximately two years.

It was a complete shock to have confirmed to me that Council had been denied this revenue from this commercial Lease for which you were responsible and accountable for.

You were advised of this negligence and ineffective, inefficient and uneconomical management of the TYTO Community Centre by you, has cost Council $29,116.29 (incl. GST) plus interest and, that your conduct had also seriously and negatively affected the image and reputation of Council.

It is a matter of Record that this Restaurant Business has now closed and vacated the TYTO Precinct owing Council this extremely large amount of money with Council having little chance of any recovery of this debt.

In our discussion on 2 August 2019, you fully engaged in discussion in this matter and attempted to "blame shift" the reason for this situation onto other Officers and Councillors. Whilst you eventually accepted that your Department was ultimately responsible, you again simply reflected blame on the two managers and staff involved with leases and TYTO Precinct.

However, you, as Executive Manager - Development, Planning and Environmental Services, were and remain the Manager fully and completely responsible for making and managing the operations of this Lease to Enrico's Restaurant.

I also advised you on Friday 2 August 2019 that after considering the matter closely in your comments, I decided that you had not offered any reasonable and acceptable explanation as to how the situation of denied Council revenue had arisen, particularly repeatedly occurring over such an extended period of time.

In addition to Enrico's Restaurant, we discussed in full concerning your negligent management performance concerning the following:

  • Environment and Waste Matters;
  • Planning and Development Matters;
  • Performance Management of Manager Community and Economic Development;
  • Lack of direction and actioning of capital works projects and initiatives; and
  • Demonstrated lack of ability to manage and execute the scope of your areas of

responsibility.[128]

  1. [132]
    Mr Rayment then stated that:
  • on 2 August 2019, he advised Ms Bentzen that:
  1. –her continued employment had become 'untenable' and she had left him with '… no alternative but for you to vacate your employment with Council'; and
  1. –the decision was made against the contents of her obligations and standards of work performance either stipulated or regulated by her contract of employment, the financial management responsibilities contained in her current position description, the Council's Code of Conduct and her responsibilities in accordance with s 13(2) of the '… Queensland Local Government Act 2016';
  • he was disappointed that Ms Bentzen did not take up his offer on 2 August 2019 to consider any suitable alternative cessation of her employment; and
  • the medical certificate Ms Bentzen forwarded on 8 August 2019 was not accepted and was regarded as 'ingenuine', the consequence of which her request to discuss the matter after 16 September 2019 was declined.[129]
  1. [133]
    Mr Rayment concluded by stating:

I have therefore been considering this matter further against all the above circumstances, my mandatory and legislated responsibilities as Chief Executive Officer of Council, and the services for which it is responsible for and accountable to the community in this region.

Your actions leave me no alternative but to formally confirm my advices to you on 2 August 2019, of your termination of employment with Council for misconduct arising from negligent mismanagement and subsequent lack of diligent, effective, efficient and economical management of a public resource of Council.

This termination is effective from Close of Business on 6 August 2019, the end of the last Pay Period. You will be paid five weeks' Pay in lieu of Notice, in accord with your Contract of Employment.[130]

  1. [134]
    On 30 September 2019, the Council was advised by the AFSA that the lessees had no property in respect of which the unpaid rent could be realised.[131]

Ms Bentzen's submissions

  1. [135]
    Ms Bentzen submits that:
  • she was not properly notified of the reason for the dismissal and was not given an opportunity to respond to the allegation;
  • should the Commission be satisfied that the mandatory processes of the LG Act apply to her dismissal, then it follows that the respondent should be '… restrained from relying on any ground or particular being advanced in this proceeding that was not advanced in a written notice' to her pursuant to s 283 of the LG Regulation; and
  • given that no notice of the grounds or particulars were given to her, there can be no finding that there was a valid reason for dismissal because any dismissal without grounds must be unfair, unjust or unreasonable.[132]

The Council's submissions

  1. [136]
    The Council submits that:
  • Ms Bentzen engaged in misconduct or serious misconduct because:
  1. –it was Ms Bentzen's '… duty to send invoices and collect rents in the sum of approximately $30,000' and her failure to do so over a period of two years and one month was 'gross negligence';
  1. –Ms Bentzen '… discovered her failure, at the very latest, by in or about March 2019' and she took no action to address the problem between March 2019 and June 2019 when she advised the Council of the matter;
  1. –she was repeatedly told to address the matter between June 2019 and August 2019, however, she did nothing, including not sending tax invoices to the lessees and did not ask the lessees to pay the rent owing to the Council; and
  1. –her conduct was a gross dereliction of her duties over an extended period of time which was also a blatant and fragrant refusal to follow the lawful and reasonable directions issued to her by Mr Rayment and Councillor Cripps to address and resolve the matter;
  • s 13 of the LG Act prescribes the responsibilities of local government employees and Ms Bentzen's conduct '… fell a very long way outside a mere failure to perform some of her duties', as prescribed, '… as well as she might, or up to what the Council may have regarded as an acceptable standard'; and
  • for the above reasons, Ms Bentzen engaged in serious misconduct.[133]
  1. [137]
    The Council further submits there was some confusion about the process involved in Ms Bentzen's dismissal, namely:
  • Mr Rayment made his decision to dismiss Ms Bentzen on 2 August 2019;
  • Mr Rayment left open an opportunity for further discussions between him and Ms Bentzen until 9 August 2019, but no discussions took place and Ms Bentzen took sick leave;
  • by letter dated 22 August 2019, Mr Rayment:
  1. –'… purported to terminate the Applicant's employment, effective from the end of the last pay period, 6 August 2019'; and
  1. –stated that Ms Bentzen was being dismissed for misconduct; and
  • on the evidence, it is not clear whether, as foreshadowed in the letter dated 22 August 2019, that Ms Bentzen would be paid five weeks pay in lieu of notice in accordance with her contract of employment, that she was in fact paid five weeks pay in lieu of notice.[134]
  1. [138]
    The Council also submits that Ms Bentzen does not contest her unfair dismissal claim on the merits, and that her claim is limited to process.[135]

The relevant legislative provisions

  1. [139]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [140]
    A dismissal may be unjust in circumstances where the employee was not guilty of misconduct upon which the employer acted. Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[136]
  1. [141]
    Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
  • whether the employee was notified of the reason for dismissal;
  • whether the dismissal related to the employee's conduct, capacity or performance;
  • if the dismissal related to the employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  • any other matters the Commission considers relevant.
  1. [142]
    In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[137]
  1. [143]
    In applications by dismissed employees under ch 8, pt 2 of the Act, following the employee being dismissed for misconduct, the onus of proof falls upon the employer to establish, to the reasonable satisfaction of the Commission, that the employee engaged in the misconduct as alleged.[138]
  1. [144]
    Whether or not the Commission can be satisfied the misconduct occurred is a separate consideration to whether the dismissal was harsh, unjust or unreasonable within the meaning of the Act and whether the former employee is entitled to a remedy under the Act.[139]
  1. [145]
    However, if it is determined that an employee's dismissal was not authorised by the LG Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[140]

Was Ms Bentzen notified of the reason for her dismissal?

  1. [146]
    Clearly, by Mr Rayment's letter dated 22 August 2019, Ms Bentzen was advised of the reasons for her dismissal, namely, misconduct arising from her negligent mismanagement and subsequent lack of diligent, effective, efficient and economic management of public resources of the Council.

Whether the dismissal related to Ms Bentzen's conduct, capacity or performance

The effect of s 283(2) of the LG Regulation

  1. [147]
    Ms Bentzen submits that if the mandatory processes of the LG Act apply to her dismissal, then it follows that the Council should be restrained from relying on any ground or particular being advanced in her unfair dismissal proceeding that was not advanced in a written notice to her pursuant to s 283 of the LG Regulation. In this respect, Ms Bentzen seeks to enliven s 283(2) of the LG Regulation. The effect of that provision was considered in Promnitz[141] where Martin J, President, relevantly stated:
  1. [16]
    Section 278 of the Regulation provides that Division 1 “prescribes” when a chief executive officer may take disciplinary action, and the types of action which may be taken. In these circumstances, “prescribes” means “to lay down … as a rule or a course to be followed”, “to lay down rules, direct, or dictate” or to “lay down or impose authoritatively”. In other words, Division 1 sets out what is to be done if a chief executive officer decides to take disciplinary action.
  1. [17]
    The words of s 283 are written in an imperative manner: “the chief executive officer must give the employee”. Further, s 283(2) emphasises the importance of the notice to be given under s 283(1) by providing that no other ground or particular of conduct “can be advanced in any proceeding about the disciplinary action taken against the local government employee”. That particular set of words is wide enough to include a proceeding such as this where discretionary relief was sought.
  1. [148]
    In Promnitz, the dismissed employee sought a declaration that the termination of her employment was invalid. However, I can see no reason why the phrase 'any proceeding about the disciplinary action taken against the local government employee' in s 283(2) of the LG Regulation would not include a claim that a local government employee's dismissal was unfair within the meaning of ch 8, pt 2, div 2 of the Act.
  1. [149]
    I have not had the benefit of full argument about the application of that provision insofar as it relates to Ms Bentzen's unfair dismissal claim. However, it seems to me the purpose of s 283(2) of the LG Regulation is to prevent grounds and particulars, other than those contained in a complying written notice, from being relied upon in any proceeding about the disciplinary action taken against the employee. In my view, s 283(2) of the LG Regulation is enlivened in circumstances where a complying written notice was provided to the employee. The decision in Promnitz is not authority for the proposition advanced by Ms Bentzen.
  1. [150]
    If the intended purpose of the provision was that, in the absence of a complying written notice at all, a local government employer is precluded from any advancing grounds or particulars of grounds '… in any proceeding about the disciplinary action taken against the local government employee' (such as in an unfair dismissal claim), then such a very strict result would be made clear in the LG Regulation. For these reasons, my preliminary view is the effect of s 283(2) of the LG Regulation is not that as asserted by Ms Bentzen.

Was Ms Bentzen summarily dismissed?

  1. [151]
    The Council submitted that Ms Bentzen was summarily dismissed for serious misconduct.[142] Summary dismissal involves dismissal without notice.[143] Mr Rayment's letter dated 22 August 2019 stated that while Ms Bentzen's employment was terminated effective from close of business on 6 August 2019, she would be paid '… 5 weeks' Pay in lieu of Notice, in accord with your Contract of Employment.'[144]
  1. [152]
    Exhibit 9 was Ms Bentzen's termination advice. Under the heading 'Pay Details' and under the subheading of 'Base Income' the following is recorded: 'ETP - In Lieu of Notice on Termination' in respect of which the gross amount paid was $15,773.92. In the absence of any evidence to the contrary, my conclusion is that Ms Bentzen was paid five weeks pay in lieu of notice and, as such, she was not summarily dismissed because her employment was not ended in the absence of any notice or payment in lieu of notice. Ms Bentzen's employment was ended by giving her payment in lieu of the notice that lawfully had to be provided to her under her contract.

Did Ms Bentzen engage in misconduct as stated by Mr Rayment?

  1. [153]
    There are two aspects of Ms Bentzen's conduct relied upon by Mr Rayment to dismiss her.

The rent issue

  1. [154]
    The position description, referred to above, was Ms Bentzen's for the period after July 2017.[145] Ms Bentzen's responsibilities, as confirmed in that position description, included the efficient and effective management of the TYTO precinct.
  1. [155]
    Ms Bentzen was closely cross-examined about her responsibility for the unpaid rent. In this regard the transcript records:

Ms Bentzen - - -?--- - - - anomalies.

- - your – as someone who only reports to the CEO - - -?---Yes.

- - you have the ultimate responsibility for these things, in particular this Enrico’s lease issue. You knew these – you knew those basic things that I’ve already put to you, no invoices, no rent paid problem. $25,000 not in the bank account. There’s no need – or there was no need for any investigation of any sort by you. That’s right, isn’t it?---There was. I was not responsible for leases – for leases and land dealings for a period from approximately the 1st of July 2014 to the 1st of July 2017. So I needed to investigate – and lease had been – had been decided or signed in that period.

Yes?---So I needed to investigate what the officer – the executive officer, Tuta Tennasie who was responsible for the leases, had taken place while I was not responsible of the leases.

We’re talking about June 2019 here, Ms Bentzen. If we’re kind to you, as a senior executive employee, you should have been across those lease issues by about the end of July 2017, shouldn’t you?---I hadn’t prepare – I had not looked backed at count – at Tuta Tennasie’s report. But the lease I did know about, yes.

So it’s your responsibility from 1 July 2017. So it’s negligent mismanagement on your part not to know anything about it. You say until – we’re not to know enough about it until 4 June 2019. That’s not an acceptable standard of performance for a senior executive employee, is it? What’s your answer, Ms Bentzen?---Sorry. I’m - - -

You take over this portfolio on 1 July 2017 - - -?---Seventeen. That’s correct, yes. From that date onwards, no invoices are sent to Enrico’s - - -?---That’s not correct.

No. No, rent has been paid by Enrico’s and you have the ultimate responsibility to ensure both of those things. That is unacceptable mismanagement on the part of a senior executive employee, isn’t it?---It wasn’t my responsibility to send out the invoices as such.[146]

  1. [156]
    Ms Bentzen's evidence-in-chief was that the Executive Manager, Environment and Community Services, and the Community Services Officer, who were responsible for managing leases, both resigned from the Council in or about May to June 2017 and no one was appointed to either position thereafter. Ms Bentzen further stated that no handover was provided to any Council staff members following their departure but that the organisational restructure, which resulted in her being the EMDPES, took effect from 1 July 2017.[147]
  1. [157]
    In my view, having regard to the facts that Ms Bentzen assumed the responsibilities of the position of EMDPES from 1 July 2017 and that she was responsible for the efficient and effective management of the TYTO precinct, the failure for invoices to be sent was her responsibility. On her evidence in cross-examination, Ms Bentzen knew about the lease. The fact that Ms Bentzen did not physically have responsibility to send the invoices for rent to the lessees misses the point of the relevant responsibility of her position, namely, to ensure that she ensured the employees who reported to her collected the rent. Similarly, the fact that there was no handover after other employees had left did not immunise Ms Bentzen from the responsibility she had in respect of the collection of rent from the lease of council property.
  1. [158]
    Despite the above, I am not persuaded that Ms Bentzen engaged in misconduct or serious misconduct. There are a number of reasons for this.
  1. [159]
    First, in Concut Pty Ltd v Worrell,[148] Gleeson CJ, Gaudron and Gummow JJ stated:[149]
  1. [25]
    In Pearce v Foster, Lord Esher MR stated it to be a "rule of law" that "where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him". In Blyth Chemicals Ltd v Bushnell, in the course of considering the position of the respondent, who was the manager of the appellant's business, Starke and Evatt JJ said:

"As manager for the appellant, the respondent was in a confidential position. And it is clear that he might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant."

In the same case, Dixon and McTiernan JJ said:

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal."

  1. [160]
    Similarly, in Rankin v Marine Power International Pty Ltd,[150] Gillard J relevantly held:

250The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.

  1. [161]
    Ms Bentzen's impugned conduct, in respect of the lease, does not meet the description of conduct which was incompatible with the due and faithful performance of her duty, or was inconsistent with the confidential relation between her and the Council. Similarly, that conduct does not involve a repudiation of the essential obligations under her contract or actual conduct which is repugnant to her employment relationship with the Council. In my view, Ms Bentzen's impugned conduct, in respect of the lease, involved her neglect.
  1. [162]
    Secondly, having regard to the letter of dismissal, neglect was the substance of how Mr Rayment characterised Ms Bentzen's work performance in relation to the lease.[151] Mr Rayment only used the noun 'misconduct' in the second paragraph of the last page of the dismissal letter, but the use of that word was misplaced given the context, namely '… misconduct arising from negligent mismanagement and subsequent lack of diligent, effective, efficient and economical management of a public resource of Council.'
  1. [163]
    Thirdly, in my view, given the responsibilities of her position in relation to the TYTO precinct from 1 July 2017, Ms Bentzen's management was negligent in respect of ensuring the rent for the lease was collected.
  1. [164]
    Having regard to the letter of dismissal, it was that issue that was the reason for the termination Ms Bentzen's employment. Furthermore, for the reasons given below about the other five aspects of Ms Bentzen's performance referred to in that letter, those matters were not the reason for the termination of her employment; rather, it was the Enrico's matter.

Other impugned performance

  1. [165]
    Mr Rayment, in his evidence-in-chief, gave detailed evidence about aspects of Ms Bentzen's work performance for which he was not satisfied. These related to:
  • Environmental and Waste matters concerning the Warren's Hill Waste

Management Facility, funeral and undertaking processes and cemetery records, and local laws systems and processes;

  • Planning and Development matters, including alleged mismanagement of the execution and finance of land leases, and various issues concerning Town Planning and Building Approval related matters;
  • performance management of the Manager Community and Economic

Development, including permitting a Manager to accumulate excessive TOIL time; and

  • a lack of direction and action of capital works projects and initiatives.[152]
  1. [166]
    Ms Bentzen, in her affidavit in reply filed on 27 April 2020, provided detailed evidence in relation to each of these matters.[153]
  1. [167]
    Mr Rayment's evidence was that at the meeting on 2 August 2019, he discussed Ms Bentzen's 'negligent management performance' concerning, environment and waste matters, planning and development matters, performance management of the Manager Community and Economic Development, a lack of direction and action of capital works projects and initiatives and/or a demonstrated lack of ability to manage and execute the scope of the areas of her responsibility.[154]
  1. [168]
    Mr Rayment's evidence-in-chief was that from the date of his appointment on 25 September 2018 through to 22 August 2019, it became apparent that Ms Bentzen '… was not carrying out her duties satisfactorily and showed no willingness to change.'[155] In cross-examination, Mr Rayment agreed that over that period nothing had been given to Ms Bentzen in writing about those matters.[156]
  1. [169]
    There was no detailed cross-examination by either party about the substance of these alleged performance issues concerning Ms Bentzen. However, it was put to Ms Bentzen, in cross-examination, that when these matters were discussed in the 2 August 2019 meeting, Mr Rayment was looking for Ms Bentzen to make some positive proposals and suggest some solutions to him about the problems, and that she responded. Ms Bentzen agreed.[157] Indeed, Mr Rayment's evidence in cross-examination was that, in relation to these issues, he was seeking a response to give him some comfort that he had an Executive Manager that actually understood her leadership role, had the ability to make decisions and to give some plausible responses '… in terms of what is a very serious matter.'[158]
  1. [170]
    My view is, having regard to the responses Mr Rayment was looking for from Ms Bentzen in respect of these five issues, they were not material to Ms Bentzen's dismissal; rather, they were matters later referred to in Mr Rayment's letter of dismissal in an attempt to bolster his decision to dismiss Ms Bentzen.
  1. [171]
    For the reasons I give below, during the course of the meeting on 2 August 2019, Mr Rayment made the decision, because of the Enrico's matter, to terminate Ms Bentzen's employment.

If the dismissal related to Ms Bentzen's conduct, capacity or performance, was Ms Bentzen warned about the conduct, capacity or performance or was Ms Bentzen given an opportunity to respond to the claim about the conduct, capacity or performance

  1. [172]
    There is no clear evidence that Ms Bentzen had been warned that her alleged negligent mismanagement and lack of diligent, effective, efficient and economic management of Council public resources, may result in her dismissal. In cross-examination, it was put to Mr Rayment that prior to the 2 August 2019 meeting, he did not give Ms Bentzen notice that disciplinary matters were going to be discussed involving allegations of serious misconduct which may result in her dismissal subject to her responses. Mr Rayment agreed, but stated Ms Bentzen understood the serious nature of the matters of which they were dealing.[159]
  1. [173]
    In any event, my view is that during the meeting on 2 August 2019, Mr Rayment had made up his mind that Ms Bentzen's employment was going to come to an end because of the Enrico's matter. In cross-examination, Mr Rayment stated he was dealing with an issue that:

[H]ad procrastinated, wasn't being actioned, and I simply could not ignore the seriousness of the Enrico's blunder in terms of - and you've got to remember, that's dealing over two years. So you - I then ascertained that as an exec manager has failed also through the previous budget process. So it had been, you know, missed over, you know, almost a two year period.[160]

  1. [174]
    Mr Rayment's further evidence, in cross-examination was:

You were surprised by your - what was the outcome of the meeting?---Well, it - I mean, it’s a [indistinct] affidavit. I mean, the - raised the - the issue of TYTO and then explained to Ms Bentzen that, you know, we’re dealing with a serious misconduct issue that, you know, are grounds to dismiss on the - on the - you know, on the spot. We then had a good discussion in about four or five other issues, and it wasn’t, you know, until I was seeking - I was seeking something - and, you know, you can sit here and criticise in terms of what was I exactly seeking. I was seeking just a response of – to give me some comfort that I’ve got an exec manager that actually understands their leadership role and their ability to make decisions and to give me some plausible response in terms of what is a very serious matter. But then when the dukes came up and Ms Bentzen got very – would you say the word vindictive, very aggressive, you know, it was clear that she didn’t want to actually provide an outcome. So, you know, that’s where it went south. And, you know, it’s disappointing.

So is it at that point you decided there were grounds to dismiss then, or had you decided at some other point?---No. As I said - as I said previously, I went in to the meeting understanding I had the grounds - what I believed had the grounds to dismiss her serious misconduct. So no, that wasn’t a - that wasn’t a knee-jerk reaction based on Ms Bentzen’s volatile sort of attack towards me at the end of the meeting.

So it is the case that prior to the meeting, you had satisfied yourself that there were grounds to discipline Ms Bentzen and that Ms Bentzen’s conduct warranted a contemplation, at least, at that time that dismissal was in range for her misconduct?---Yes.

And then during the meeting, you talk about in your statement - and I don’t want to misquote you – you took into account her responses during the conversation and after taking those responses into account, you in your mind formed a view - and I am referring you to paragraph 40 of your statement if you would like to refer to it:

By the time our discussion concluded, I had formed the view that council would be best served by the termination of Rosemary’s employment as the EMDPES.

I take is that is a reference to - - -?---Exec manager. Yes, yes.

Continuing:

In my view, she did not have the appropriate attitude or desire to adequately undertake the required management and leadership role and responsibilities. An executive manager is a critical part of council’s management structure and vital to the proper functioning of council as a whole. The EMDPES reports directly to the CEO. The incumbent EMDPES needs to be robust and a strategic leader.

So at that point in the conversation, you formed the view that you need to terminate Ms Bentzen’s employment - you decided to do that?---Yes.

Okay. And then you – at paragraph 41, you go – I’m paraphrasing – you go on to set out the reasons why. At 42, you say:

I therefore advised Rosemary that her continued employment had become untenable in view of her negligent financial management in respect of the lease and the matters referred to at paragraph 38 above.[161]

  1. [175]
    From this evidence, it seems to me that prior to the meeting, Mr Rayment had formed the view that he had grounds to dismiss Ms Bentzen for misconduct in relation to the Enrico's matter. Ms Bentzen's evidence was that Mr Rayment did not inform her, prior to the meeting, of what would be discussed in the meeting,[162] although she recalled one of the items she wanted to get an update from Mr Rayment was the Enrico's lease.[163]
  1. [176]
    During the meeting Mr Rayment also sought Ms Bentzen's responses about the five other matters, but not in terms of providing her with an opportunity to respond as to why disciplinary action should not be taken against her about those matters; and that it was Ms Bentzen's attitude demonstrated by her responses to the Enrico's matter, during that meeting, that resulted in his decision to terminate her employment. So much is confirmed in the letter of dismissal where Mr Rayment stated that in her response to this issue, Ms Bentzen attempted to shift the blame to other officers.
  1. [177]
    However, for the reasons given above, Mr Rayment did not comply with s 283 of the LG Regulation, the consequence of which is that Ms Bentzen was not given the opportunity prescribed by the LG Regulation to respond to the claims made by Mr Rayment about her conduct.
  1. [178]
    My opinion is that while Mr Rayment did not, prior to the meeting, determine that Ms Bentzen would be dismissed, he certainly, prior to the meeting, formed the view that Ms Bentzen had engaged in misconduct for which she may be dismissed. Such a conclusion, without even first hearing from Ms Bentzen, is, in my view, a denial of procedural fairness.

Any other matters the Commission considers relevant

  1. [179]
    For the reasons given above, Mr Rayment did not comply with s 283 of the LG Regulation prior to dismissing Ms Bentzen.

Ms Bentzen's dismissal was unjust

  1. [180]
    Section 320 of the Act does not address the weight to be given to each of the mandatory matters in paragraphs (a) to (d) and, as such, the weight to be given to a particular factor is for the Commission.[164]
  1. [181]
    While there may have been a reasonable basis to terminate Ms Bentzen's employment, for negligence in respect of the Enrico's matter, my overall assessment is that her dismissal was unjust. In my view, given the mandatory requirements of s 283 of the LG Regulation, which prescribes how natural justice is to be afforded to an employee who is to be disciplined by a chief executive officer, the failure to comply with those requirements rendered Ms Bentzen's dismissal unjust.
  1. [182]
    Similarly, even in the absence of the application of that provision, on Mr Rayment's own evidence, prior to the meeting on 2 August 2019, he had formed the view that Ms Bentzen had engaged in misconduct for which she could be dismissed. Such a conclusion was reached without giving Ms Bentzen any opportunity to be heard about that conclusion.
  1. [183]
    In addition, Mr Rayment did not give Ms Bentzen prior notice that at the meeting on 2 August 2019, disciplinary matters were going to be discussed involving allegations of serious misconduct which may, subject to her responses, result in her dismissal. While Ms Bentzen may have understood the serious nature of the Enrico's matter and her role in it, that is not, in my view, the same as informing Ms Bentzen that her responses to the matters to be discussed in a forthcoming meeting may result in her dismissal, particularly where Mr Rayment had already formed the view that Ms Bentzen had engaged in misconduct and could be dismissed for that reason.
  1. [184]
    For these reasons, Ms Bentzen's dismissal was unjust.
  1. [185]
    Ms Bentzen's submissions about remedy, although it is by no means clear, seemed to focus on orders I should make if I declared her dismissal to be invalid as opposed to a determination that her dismissal was harsh, unjust or unreasonable. The Council did not make detailed submissions as to what remedy should be ordered if it was found that Ms Bentzen's dismissal was harsh, unjust or unreasonable.
  1. [186]
    For these reasons, I cannot determine what remedy I should have ordered, if any, pursuant to s 321 or s 322 of the Act.
  1. [187]
    However, given that I will declare that Ms Bentzen's dismissal was invalid, there seems to be little practical utility in seeking further evidence and submissions on this question.

Conclusion

  1. [188]
    For the reasons I have given:
  • Ms Bentzen's dismissal was invalid because of the non-compliance with s 283(1) of the LG Regulation; and
  • a declaration that Ms Bentzen's dismissal was invalid should be made.
  1. [189]
    An invalid decision is of no effect[165] and, insofar as substantive rights are concerned, such a decision is invalid from the date upon which it was made.[166] Ms Bentzen seems to claim that in addition to declaring her dismissal to be invalid, other orders should be made, namely:
  • an order that she be 'restored' to her former position with the Council;
  • an order that her continuity of service be maintained; and
  • an order that the Council pays her the remuneration lost by reason of her purported dismissal, to be agreed or to be subject to further application.[167]
  1. [190]
    Ms Bentzen, in her application in existing proceedings and in her submissions, did not identify the sections of the Act, upon which she relies, for me to make these other orders. Ms Bentzen has not made submissions about why such orders should be made if her dismissal was declared to be invalid. As a consequence, the Council has not had an opportunity to be heard about those discrete matters. I will hear from the parties about those matters.

Orders

  1. [191]
    I make the following Orders:
  1. Pursuant to s 463(1) of the Industrial Relations Act 2016, it is declared that the purported dismissal of the Applicant, as notified to the Applicant by letter dated 22 August 2019, was invalid.
  1. The Applicant is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, and any further affidavit material, about the matters identified in paragraph [190] of the reasons for decision, by 4.00pm on Friday, 21 May 2021.
  1. The Respondent is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, in response to the Applicant's submissions referred to in Order 2, and any further affidavit material, by 4.00pm on Friday, 28 May 2021.
  1. Unless otherwise ordered, the matters identified in paragraph [190] of the reasons for decision will be determined on the papers.

Footnotes

[1] Exhibit 6, exhibit 'AR-15', page 126.

[2] Ms Bentzen's written submissions filed on 15 February 2021 ('Ms Bentzen's submissions'), para. 51.

[3] The Hinchinbrook Shire Council's written submissions filed on 25 March 2021 ('the Council's submissions'),
para. 9.

[4]The Council's submissions, paras. 37-38.

[5]The Council's submissions, para. 40.

[6]The Council's submissions, para. 41.

[7]The Council's submissions, para. 42.

[8] The Council's submissions, para. 68.

[9] The Council's submissions, para. 69.

[10]   The Council's submissions, para. 72, citing Esmonds Motors Pty Ltd v the Commonwealth [1970] HCA 15;
(1970) 120 CLR 463 ('Esmonds'), 466-467 (Barwick CJ).

[11]   The Council's submissions, para. 73.

[12]   The Council's submissions, para. 75, citing Epic Energy (WA) Nominees Pty Ltd v Michael [2003] WASC 156; (2003) 27 WAR 515 [43]-[44] (McKechnie J) and Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20; (2012) 197 LGERA 1, [50]-[51] (Porter J).

[13]   Ms Bentzen's reply submissions filed on 7 April 2021 ('Ms Bentzen's reply'), paras. 4-6.

[14]   Ms Bentzen's reply, para. 8.

[15]   Ms Bentzen's reply, para. 9.

[16]   Ms Bentzen's reply, para. 10.

[17] Ms Bentzen's reply, para. 11, citing Promnitz v Gympie Regional Council [2015] ICQ 011; (2015) 248 IR 64,
('Promnitz'), [26] (Martin J, President).

[18] Ms Bentzen's reply, para. 12.

[19] McEldowney v Forde [1971] AC 632 ('McEldowney'), 655 (Lord Pearson).

[20] McEldowney (n 19), 655 and Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 ('Vanstone'), [100]
(Weinberg J).

[21] Industrial Relations Act 2016 s 429.

[22] Promnitz (n 17) [30], Blows v Townsville City Council [2016] QIRC 066 ('Blows'), [66] (Deputy President
O'Connor) and Elmes v Carpentaria Shire Council [2016] QIRC 118 ('Elmes') [52] (Deputy President O'Connor).

[23] Industrial Relations Act 2016 s 9(1)(b)(i) and, or in the alternative, the combined effect of s 9(3) and sch 1,
item 17 of the Industrial Relations Act 2016.

[24] Industrial Relations Act 2016 s 450.

[25] Statutory Instruments Act 1992 s 7(2)(a) and s 7(3).

[26] Vanstone (n 20), [103] (Weinberg J).

[27] Ibid [104] (Weinberg J citing McEldowney (n 19).

[28] Ibid.

[29] [2019] QCA 129.

[30] McMurdo JA at [24] and Boddice J at [25] agreeing.

[31] Citations omitted.

[32] Esmonds (n 10) 467 (Barwick CJ).

[33] [1957] HCA 4; (1957) 96 CLR 245, 250 (Dixon CJ, Williams, Webb and Fullagar).

[34] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [11]-[13] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

[35] The Council's submissions, paras. 80-81.

[36] Directive 14/20 Discipline, made pursuant to s 53 and s 192A of the Public Service Act 2008, cl 3 and cl 8.

[37] The Council's submissions, paras. 87-88.

[38] The Council's submissions, para. 90.

[39] The Council's submissions, para. 93.

[40] Explanatory Notes for SL 2018, No. 201, page 1.

[41] The Council's submissions, para. 97.

[42] The Council's submissions, para. 98.

[43] The Statutory Instruments Act 1992.

[44] Ms Bentzen's submissions, paras. 75-81.

[45] Explanatory Notes, Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018 (Qld) 1.

[46] SL 2018, No. 199.

[47] Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 ('the 2018 Amendment Act'), s 33(4).

[48] Local Government Legislation (Councillor Complaints and Other Matters) Amendment Regulation 2018 ('the 2018 Amendment Regulation'), s 2.

[49] The 2018 Amendment Act, s 34.

[50] SL 2018, No. 199.

[51] The 2018 Amendment Regulation, s 4, s 16, s 17 and s 18.

[52] Explanatory Notes for SL 2018 No. 201 page 4.

[53] Statutory Instruments Act 1992 s 4.

[54] The Council's submissions, para. 16.

[55] The Council's submissions, para. 17.

[56] The Council's submissions, para. 9(c).

[57] The Council's submissions, para. 9(c).

[58] Ms Bentzen's reply, para. 14.

[59] Ms Bentzen's reply, paras. 14-15.

[60] Promnitz (n 17).

[61] Exhibit 6, exhibit 15, page 124.

[62] Exhibit 6, exhibit 15, page 125.

[63] Exhibit 6, exhibit 15, page 125.

[64] Exhibit 6, exhibit 15, page 126.

[65] Ms Bentzen's submissions, paras. 54-65.

[66] Ms Bentzen's submissions, paras. 52-53, citing, as authorities for the proposition, Promnitz (n 17), Blows (n 22) and Elmes (n 22).

[67] Ms Bentzen's submissions, paras. 71-92.

[68] The Council's submissions, para. 116, referring to Exhibit 6, paras. [40] and [42]-[43].

[69] The Council's submissions, para. 118, referring to Exhibit 6, paras. [32]-[39].

[70] The Council's submissions, para. 123.

[71] The Council's submissions, para. 123, referring to Exhibit 6, exhibits 'AR-4' to 'AR-7'.

[72] The Council's submissions, para. 121.

[73] The Council's submissions, paras. 129-130.

[74] The Council's submissions, paras. 132-134.

[75] The Council's submissions, para. 135.

[76] Promnitz (n 17) [20] (Martin J, President).

[77] Ibid [28].

[78] Ibid [29].

[79] T 2-92, ll 5-10.

[80] Industrial Relations Act 2016 s 464(a).

[81] The Council's submissions, para. 177-178.

[82] The Council's submissions, para. 179.

[83] Queensland Nurses and Midwives’ Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12; (2019) 289 IR 202, [47] (Martin J, President).

[84] Featherstone v Tully [2002] SASC 243; (2002) 83 SASR 302, [157] Belby J (Mullighan J at [1] agreeing) cited with apparent approval by Keane J in Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; (2006) 1 Qd R 77, [42].

[85] Kioa v West [1985] HCA 81, (1985) 159 CLR 550, 582 (Mason J).

[86] The Council's submissions, paras. 158-163.

[87] Ms Bentzen's submissions, para. 100.

[88] Ms Bentzen's submissions, para. 93.

[89] Ms Bentzen's submissions, para. 108 and Ms Bentzen's reply, para. 36.

[90] Exhibit 2, para. 2.

[91] Exhibit 6, para. 3.

[92] Exhibit 6, exhibit 'AR-1', page 36.

[93] Exhibit 6, exhibit 'AR-1', pages 36-37.

[94] Exhibit 6, exhibit 'AR-1', page 37.

[95] Exhibit 6, para. 7.

[96] Exhibit 6, exhibit 'AR-2', page 45.

[97] Exhibit 2, para. 11.

[98] Exhibit 2, para. 13.

[99] Exhibit 2, para. 14.

[100] Exhibit 2, paras. 15 and 16.

[101] Exhibit 2, para. 17.

[102] Exhibit 2, para. 20

[103] Exhibit 2, para. 21.

[104] Exhibit 2, para. 28.

[105] Exhibit 11, exhibit 'RJ-5', page 160.

[106] Exhibit 6, exhibit 'AR-4', page 93.

[107] Exhibit 6, exhibit 'AR-5', page 95.

[108] Exhibit 2, paras. 29-31.

[109] Exhibit 2, para. 32.

[110] Exhibit 2, paras. 33-35.

[111] Exhibit 6, exhibit 'AR-6', page 97.

[112] Exhibit 2, paras. 36-37.

[113] Exhibit 2, para. 38.

[114] Exhibit 6, exhibit 'AR-7', page 99.

[115] Exhibit 6, para. 25.

[116] Exhibit 2, para. 42.

[117] Exhibit 2, para. 49.

[118] Exhibit 2, para. 106 and Exhibit 6, para. 44.

[119] Exhibit 2, para. 107.

[120] Exhibit 2, paras. 106 and 113.

[121] Exhibit 6, exhibit 'AR-10', page 114.

[122] Exhibit 6, exhibit 'AR-11', page 116.

[123] Exhibit 6, para. 49 and exhibit 'AR-12', page 118.

[124] Exhibit 2, para. 117.

[125] Exhibit 6, exhibit 'AR-13', page 120.

[126] Exhibit 6, exhibit 'AR-14', page 122.

[127] Exhibit 6, exhibit 'AR-8', page 102.

[128] Exhibit 6, exhibit 'AR-15', pages 124-125.

[129] Exhibit 6, exhibit 'AR-15', page 125.

[130] Exhibit 6, exhibit 'AR-15', page 126.

[131] Exhibit 6, exhibit 'AR-9', pages 105-112.

[132] Ms Bentzen's submissions, paras. 113-115.

[133] The Council's submissions, paras. 144-154.

[134] The Council's submissions, para. 165.

[135] The Council's submissions, para. 174.

[136] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465 (McHugh and Gummow JJ).

[137] Gold Coast District Health Service v Walker [2001] ICQ 63; (2001) 168 QGIG 258, 259 (President Hall).

[138] Ibid, by way of analogy to a dismissal for misconduct under the Public Service Act 1996.

[139] Ibid.

[140] Ibid, by way of analogy to a dismissal not authorised by the Public Service Act 1996.

[141] Promnitz (n 17).

[142] The Council's submissions, para. 164.

[143] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, [92] (Macfarlan JA with
Ward JA at [130] and Leeming JA at [137] agreeing).

[144] Exhibit 6, exhibit 'AR-15', page 126.

[145] T 2-11, ll 36-42.

[146] T 2-20, l 18 to T 2-21, l 6.

[147] Exhibit 3, para. 4, f-h.

[148] [2000] HCA 64; (2000) 75 ALJR 213.

[149] Citations omitted.

[150] [2001] VSC 150; (2001) 107 IR 11.

[151] Exhibit 6, exhibit 'AR-15', page 124, second and fourth paragraphs, page 125, tenth paragraph and page 126, seventeenth paragraph.

[152] Exhibit 6, paras. 59-76.

[153] Exhibit 3, paras. 28-40.

[154] Exhibit 6, para. 38.

[155] Exhibit 7, para. 4.

[156] T 2-58, l 28.

[157] T 2-29, l 40 to T 2-30, l 22.

[158] T 2-60, ll 7-10.

[159] T 2-81, ll 30-40.

[160] T 2-59, ll 13-17.

[161] T 2-60, l 1 to T 2-61, l 9.

[162] Exhibit 1, para. 55.

[163] Exhibit 1, para. 58.

[164] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24, 41 (Mason J).

[165] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [91]
(McHugh, Gummow, Kirby and Hayne JJ).

[166] Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253, 258 (Sheppard and Wilcox JJ).

[167] See Ms Bentzen's application in existing proceedings filed on 26 September 2019. I note that in Promnitz, (n 17), Martin J, President, made no other orders of this nature. Similarly, in Blows (n 22), Deputy President O'Connor, who declared that the applicant's purported dismissal was invalid for non-compliance with s 283 of the Local Government Regulation 2012, made no other orders of this nature. I also note that in Elmes (n 22), Deputy President O'Connor declared that the applicant's dismissal was invalid for non-compliance with s 283 of the Local Government Regulation 2012, and did make other orders of the nature sought by Ms Bentzen. However, that was in circumstances where his Honour also found that the dismissal was 'unfair' within the meaning of s 73(1) of the Industrial Relations Act 1999 and, unlike in the present case, the applicant did not argue the unfair dismissal claim as an alternative claim and pressed for a decision that the dismissal was unfair and for rein statement under s 78 of that Act.

Close

Editorial Notes

  • Published Case Name:

    Bentzen v Hinchinbrook Shire Council

  • Shortened Case Name:

    Bentzen v Hinchinbrook Shire Council

  • MNC:

    [2021] QIRC 158

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    13 May 2021

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
Blows v Townsville City Council [2016] QIRC 66
2 citations
Jump To
Cite 1 - [2016] QIRC 66
Cite 2 - [2016] QIRC 66
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Community & Public Sector Union v Telstra Corporation Ltd (2001) 107 IR 11
1 citation
Jump To
Cite 1 - (2001) 107 IR 11
Concut Pty Ltd v Worrell [2000] HCA 64
2 citations
Jump To
Cite 1 - [2000] HCA 64
Cite 2 - [2000] HCA 64
Concut Pty Ltd v Worrell (2000) 75 ALJR 213
2 citations
Jump To
Cite 1 - (2000) 75 ALJR 213
Cite 2 - (2000) 75 ALJR 213
Earner v Queensland Investment Corporation and QIC Properties Pty Ltd [2001] ICQ 63
2 citations
Jump To
Cite 1 - [2001] ICQ 63
Cite 2 - [2001] ICQ 63
Elmes v Carpentaria Shire Council [2016] QIRC 118
2 citations
Jump To
Cite 1 - [2016] QIRC 118
Cite 2 - [2016] QIRC 118
Epic Energy (WA) Nominees Pty Ltd v Michael [2003] WASC 156
2 citations
Jump To
Cite 1 - [2003] WASC 156
Cite 2 - [2003] WASC 156
Epic Energy (WA) Nominees Pty Ltd v Michael (2003) 27 WAR 515
2 citations
Jump To
Cite 1 - (2003) 27 WAR 515
Cite 2 - (2003) 27 WAR 515
Esmonds Motors Pty Ltd v The Commonwealth [1970] HCA 15
2 citations
Jump To
Cite 1 - [1970] HCA 15
Cite 2 - [1970] HCA 15
Esmonds Motors Pty Ltd v the Commonwealth (1970) 120 CLR 463
3 citations
Jump To
Cite 1 - (1970) 120 CLR 463
Cite 2 - (1970) 120 CLR 463
Cite 3 - (1970) 120 CLR 463
Featherston v Tully [2002] SASC 243
2 citations
Jump To
Cite 1 - [2002] SASC 243
Cite 2 - [2002] SASC 243
Featherston v Tully (2002) 83 SASR 302
2 citations
Jump To
Cite 1 - (2002) 83 SASR 302
Cite 2 - (2002) 83 SASR 302
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Kioa v West [1985] HCA 81
2 citations
Jump To
Cite 1 - [1985] HCA 81
Cite 2 - [1985] HCA 81
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
McEldowney v Forde [1971] AC 632
3 citations
Jump To
Cite 1 - [1971] AC 632
Cite 2 - [1971] AC 632
Cite 3 - [1971] AC 632
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
2 citations
Jump To
Cite 1 - [1986] HCA 40
Cite 2 - [1986] HCA 40
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Promnitz v Gympie Regional Council [2015] ICQ 11
2 citations
Jump To
Cite 1 - [2015] ICQ 11
Cite 2 - [2015] ICQ 11
Promnitz v Gympie Regional Council (2015) 248 IR 64
8 citations
Jump To
Cite 1 - (2015) 248 IR 64
Cite 2 - (2015) 248 IR 64
Cite 3 - (2015) 248 IR 64
Cite 4 - (2015) 248 IR 64
Cite 5 - (2015) 248 IR 64
Cite 6 - (2015) 248 IR 64
Cite 7 - (2015) 248 IR 64
Cite 8 - (2015) 248 IR 64
Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12
2 citations
Jump To
Cite 1 - [2019] ICQ 12
Cite 2 - [2019] ICQ 12
Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) (2019) 289 IR 202
2 citations
Jump To
Cite 1 - (2019) 289 IR 202
Cite 2 - (2019) 289 IR 202
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
1 citation
Jump To
Cite 1 - (2001) 107 IR 117
Rankin v Marine Power International Pty Ltd [2001] VSC 150
2 citations
Jump To
Cite 1 - [2001] VSC 150
Cite 2 - [2001] VSC 150
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
2 citations
Jump To
Cite 1 - (2010) 241 CLR 252
Cite 2 - (2010) 241 CLR 252
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
2 citations
Jump To
Cite 1 - [2010] HCA 23
Cite 2 - [2010] HCA 23
Shanahan v Scott (1957) 96 CLR 245
2 citations
Jump To
Cite 1 - (1957) 96 CLR 245
Cite 2 - (1957) 96 CLR 245
Shanahan v Scott [1957] HCA 4
2 citations
Jump To
Cite 1 - [1957] HCA 4
Cite 2 - [1957] HCA 4
State of Queensland v Maryrorough Solar Pty Ltd [2019] QCA 129
3 citations
Jump To
Cite 1 - [2019] QCA 129
Cite 2 - [2019] QCA 129
Cite 3 - [2019] QCA 129
Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20
2 citations
Jump To
Cite 1 - [2012] TASSC 20
Cite 2 - [2012] TASSC 20
Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania (2012) 197 LGERA 1
2 citations
Jump To
Cite 1 - (2012) 197 LGERA 1
Cite 2 - (2012) 197 LGERA 1
Townsville City Council v Department of Main Roads[2006] 1 Qd R 77; [2005] QCA 226
4 citations
Jump To
Cite 1 - [2005] QCA 226
Cite 2 - [2005] QCA 226
Cite 3 - [2006] 1 Qd R 77
Cite 4 - [2006] 1 Qd R 77
Vanstone v Clark (2005) 147 FCR 299
2 citations
Jump To
Cite 1 - (2005) 147 FCR 299
Cite 2 - (2005) 147 FCR 299
Vanstone v Clark [2005] FCAFC 189
2 citations
Jump To
Cite 1 - [2005] FCAFC 189
Cite 2 - [2005] FCAFC 189
Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253
2 citations
Jump To
Cite 1 - (1986) 13 FCR 253
Cite 2 - (1986) 13 FCR 253
Wattmaster Alco Pty Ltd v Button [1986] FCA 446
2 citations
Jump To
Cite 1 - [1986] FCA 446
Cite 2 - [1986] FCA 446
Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381
2 citations
Jump To
Cite 1 - [2015] NSWCA 381
Cite 2 - [2015] NSWCA 381

Cases Citing

Case NameFull CitationFrequency
Queensland Police Union of Employees v HS First Inc. [2023] QIRC 302 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.