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  4. Mancini v State of Queensland (Queensland Fire and Emergency Services) - [2021] QIRC 192

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Mancini v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 192

Mancini v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mancini v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 192

PARTIES:

Mancini, Andrea

(Applicant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO:

AD/2021/13

PROCEEDING:

Anti-Discrimination - Application in existing proceeding

DELIVERED ON:

2 June 2021

HEARING DATE:

31 May 2021

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDERS:

  1. That the Form 4 Application is dismissed.
  1. That costs are reserved until such time as the complaint is resolved, either by agreement save as to costs, or by decision of this Commission.

CATCHWORDS:

ANTI-DISCRIMINATION – Application in existing proceedings – Applicant sought order directing Respondent not to pursue show cause process – consideration of ss 278 and 282 of Industrial Relations Act 2016 (Qld) – whether application was made under s 309 – whether commission has the power to grant the order sought – consideration of power to grant injunctive relief

LEGISLATION AND

OTHER INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) s 7, s 10, s 15, s 130, s 144, s 166, s 209

General Protections, Practice Direction Number 4 of 2021, Queensland Industrial Relations Commission cl 1

Human Rights Act 2019 (Qld) s 15

Industrial Relations Act 1999 (Qld) s 277, s 331

Industrial Relations Act 2016 (Qld) s 278, s 282, s 284, s 285, s 309, s 312, s 314, s 316, s 456, s 473, s 539, s 541, s 544

Public Service Act 2008 (Qld) s 178

CASES:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Australia Post v Russell & Anor [2002] ICQ 36

Australian Workers' Union v Chemring Australia Pty Ltd [2019] FCA 750

Banovic v State of Queensland, Department of Education [2019] QIRC 132

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Bond v Multicap Limited [2020] QIRC 051

Carlton v Blackwood [2017] ICQ 001

Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020

Johnson v Gore Wood and Co [2000] UKHL 65

Mancini v State of Queensland (Queensland Fire and Emergency Services) (Queensland Industrial Relations Commission, Dwyer IC, 15 June 2020)

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

Seen v Rebel Sport Limited [2021] QIRC 086

APPEARANCES:

Mr C Watters of counsel, instructed by My Work Rights Pty Ltd for the Applicant.

Dr M Brooks of counsel, instructed by Crown Law for the Respondent.

Reasons for Decision

Background

  1. [1]
    Ms Mancini is employed as a Manager, Community Capability and Volunteerism (AO7) with the Queensland Fire and Emergency Services (QFES). 
  1. [2]
    Ms Mancini was first employed by the QFES in February 2005, but has now been absent from the workplace since 18 March 2019.
  1. [3]
    On four separate occasions, Ms Mancini was directed to attend an independent medical examination (IME).  The first such direction was given on 23 January 2020.
  1. [4]
    Ms Mancini did not attend the first two appointments because she was providing care to a family member who was unwell at that time. 
  1. [5]
    On 19 March 2020, Ms Mancini filed a 'fair treatment' public service appeal following the second IME appointment scheduled.  Industrial Commissioner Dwyer decided that appeal on 15 June 2020, declining to hear it on the grounds that he reasonably believed the appeal was misconceived or lacked substance, though also noting that the referral to the IME was fair and reasonable in the circumstances.[1]
  1. [6]
    The third IME appointment was scheduled to take place on 19 June 2020 but was rescheduled to enable a support person to attend with Ms Mancini.  She attended the fourth IME appointment arranged by QFES on 3 July 2020.
  1. [7]
    On 12 October 2020, Ms Mancini lodged a complaint with the Queensland Human Rights Commission alleging that the decision to refer her for an IME and subsequently give consideration to her ill health retirement constituted unlawful discrimination in contravention of the Anti-Discrimination Act 1991 (Qld) (AD Act).
  1. [8]
    Specifically, Ms Mancini alleges discrimination on the basis of the attribute of 'impairment' (s 7(h) of the AD Act) and 'unreasonable limitation of the right to Recognition and Equality before the law' (s 15 of the Human Rights Act 2019 (Qld)).
  1. [9]
    From 13 November 2020, there have been three notices issued to Ms Mancini asking her to show cause as to why she should not be medically retired. 
  1. [10]
    On 22 November 2020, she provided a response that the QFES considered did not meaningfully engage with the medical evidence set out in the first show cause notice.  A second show cause notice was issued on 3 December 2020, providing a further opportunity to do so.
  1. [11]
    Ms Mancini responded by initiating two actions seeking to restrain any decision the QFES may make to medically retire her.  Those orders were sought via the following means:
  1.  An Industrial Dispute was filed on 9 December 2020 (D/2020/143).
  1.  An Application for a 'Stay' was filed on 10 December 2020 (AD/2020/110) under s 144 of the AD Act. 
  1. [12]
    Both those matters were conferenced together before Industrial Commissioner Knight on 11 December 2020. 
  1. [13]
    As a result, an agreed resolution was reached that the Respondent agree to hold any decision with respect to the Applicant's ill health retirement in abeyance for 60 days or until her complaint was conciliated before the Queensland Human Rights Commission, whichever was the sooner. 
  1. [14]
    As it transpired, the conciliation before the Queensland Human Rights Commission occurred first, specifically on 29 January 2021.
  1. [15]
    This matter (AD/2021/13) was referred to the QIRC under s 166 of the AD Act - 'AD Referral of Complaint' – on 22 March 2021. 
  1. [16]
    A Mention was held before Industrial Commissioner Pidgeon on 26 March 2021 to establish the status of the 'Stay Application' made in matter AD/2020/110.  It was accepted that the power under s 144 of the AD Act may only be exercised before the complaint is referred to the QIRC.  That time had passed – and so Ms Mancini discontinued her Application in that matter.
  1. [17]
    On 21 April 2021, a conciliation conference in matter AD/2021/13 was held before Industrial Commissioner Pidgeon.  The matter was unable to be resolved at that point - and so a Directions Order was issued requiring the parties to exchange Statements of Facts and Contentions and undertake the discovery process, ahead of a resumed conference on 14 July 2021. 
  1. [18]
    Notwithstanding that process underway, on 14 May 2021 Deputy Commissioner Roche, QFES, wrote to Ms Mancini asking her to show cause as to why she should not be medically retired.  Ms Mancini's show cause response was required by 28 May 2021.  Her representatives then wrote to Deputy Commissioner Roche positing that no such action could be taken with respect to the show cause until the proceeding on foot had been determined. 
  1. [19]
    In a further effort to halt the show cause process, Ms Mancini sought to re-enliven the Industrial Dispute (D/2020/143) and again sought a 'stay'.  During a Mention before Industrial Commissioner Knight on 26 May 2021, it was found that the Industrial Dispute had already been dealt with at the previous conference on 11 December 2020.  That door had closed.
  1. [20]
    In light of that, on 27 May 2021 (a day before the show cause response was required) Ms Mancini filed a Form 4 Application in existing proceedings, essentially seeking an interim injunction against any decision Deputy Commissioner Roche may make with respect to the medical retirement.
  1. [21]
    That Application was referred to me to hear and decide.  Given Ms Mancini's show cause response was required the following day, I invited the QFES to extend the response deadline for a further week to enable the Form 4 Application to be urgently heard and decided.  That was agreed – and so the new response deadline was set at 4 June 2021.
  1. [22]
    A Hearing of the Form 4 Application was held on 31 May 2021.

Questions to be decided

  1. [23]
    At the commencement of the Hearing, the questions to be decided were described as:
  1. What is the outcome sought by Ms Mancini?
  1. Where is the legislative power to grant it?
  1. Why should the Commission exercise the discretion to grant it?  That is:
  1. a)Whether the Applicant has made out a prima facie case sufficient to justify the preservation of the status quo until the substantive matter is decided; and
  1. b)Evaluating where the balance of convenience lies.

What is the Applicant seeking?

  1. [24]
    The Form 4 Application indicates the Applicant seeks an order (emphasis added):

to protect her rights by directing that the QFES shall not take any action concerning the termination of the Applicant's employment, until and unless the QIRC has heard and determined matter number AD/2021/13, or that the case is otherwise negotiated and settled by the parties.

  1. [25]
    However, the outcome sought was expressed somewhat differently at the Hearing, that is (emphasis added):

to seek relief in the form of an order from this Commission, directing the respondent not to take further action or pursue its current show cause proceedings against the applicant, until and unless the current matter - that is the Anti-Discrimination application made in 2021/13, is heard and determined by the Commission.[2] 

  1. [26]
    The Applicant argues that there are several bases on which the abovementioned order can be granted. I will now deal with each of those bases in turn.

Sections 278 and 282

  1. [27]
    The Form 4 Application submitted that the order sought could be made pursuant to s 278(1)(a), (c) and (d) and s 282(1)(a) and (d) of the Industrial Relations Act 2016 (Qld) (IR Act) in the first instance.
  1. [28]
    Section 278 of the IR Act provides as follows:
  1. (1)
    The purposes of this part are as follows—

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are—

(i) free to become, or not become, members of industrial associations; and

(ii) free to be represented, or not represented, by industrial associations; 

and

(iii) free to participate, or not participate, in lawful industrial activities;

(c) to provide protection from workplace discrimination;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.

  1. (2)
    The protections contained in subsection (1) are provided to a person (whether an employee, an employer or otherwise).
  1. [29]
    The Applicant referred to the meaning of 'workplace right' as stipulated under s 284(1)(b) - (c) of the IR Act:
  1. (1)
    A person has a workplace right if the person—

(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

(b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or

(c) is able to make a complaint or inquiry—

(i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or

(ii)  if the person is an employee—in relation to his or her employment.

  1. [30]
    With respect to s 278 of the IR Act, the Applicant argued that:
  • the relevant purposes of s 278 include to protect workplace rights, provide protection from workplace discrimination and to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions under this part of the IR Act.
  • where the complaint under matter AD/2021/13 is currently afoot, the Respondent is attempting to defeat the complaint process by issuing a Show Cause Notice - thereby impugning the Applicant's workplace right.
  • the Respondent is further discriminating against the Applicant by issuing the Show Cause Notice instead of allowing the complaint before the QIRC to proceed.
  • the provision "provides for the protection of workplace rights, including protection from workplace discrimination and provides for effective relief for persons who have been discriminated against, victimised or otherwise adversely affected."[3]
  1. [31]
    The Respondent argued there is no power for the QIRC to make the orders sought by the Applicant under s 278 of the IR Act. I agree for the following reasons.
  1. [32]
    I do not accept that s 278 of the IR Act "provides for protection" or "provides for effective relief" in the sense that it confers a power to order protection or effective relief.
  1. [33]
    Section 278 of the IR Act stipulates the purpose of the general protections part of the IR Act. I may take these purposes into consideration when making decisions, however on its plain reading the provision itself does not confer on me a power to make the order sought by the Applicant.
  1. [34]
    In addition, the Form 4 Application referred to s 282(1)(a) and (d) of the IR Act as a relevant consideration to the order sought.
  1. [35]
    Section 282(1) of the IR Act provides as follows:
  1. (1)

Adverse action is taken by an employer against an employee if the employer—

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

  1. [36]
    With respect to s 282 of the IR Act, the Applicant:
  • referred to [8] of the Applicant's affidavit sworn and filed 31 May 2021 which states, "As a result of such misconduct, I suffered a mental health illness, from which, in part, I am still suffering today."
  • referred to the Outline of Submissions for the Applicant filed 31 May 2021 at [8] which articulated the situation of a co-worker, Ms Ford, "who had also been bullied and harassed in the same incident as that concerning the Applicant - but who did not suffer a significant psychological injury, no alternative placement - elsewhere in the Qld public service was arranged for the Applicant."
  1. [37]
    The Respondent argued there is no power for the QIRC to make the orders sought by the Applicant under s 282 of the IR Act. I agree for the following reasons.
  1. [38]
    Section 282 stipulates the meaning of adverse action under the IR Act. I may take these examples into consideration when making decisions, however on its plain reading the provision itself does not confer on me a power to make the order sought by the Applicant.
  1. [39]
    On that basis, I find that there is no power to grant the orders sought under ss 278 and 282 of the IR Act. 
  1. [40]
    However, the submission of adverse action is considered in further detail below.

Sections 309 and 312

  1. [41]
    The Outline of Submissions for the Applicant filed on 31 May 2021 posited that, in the alternative, the dispute may be brought before the QIRC pursuant to s 309 of the IR Act.
  1. [42]
    Section 309 of the IR Act provides for 'Application for commission to deal with a dispute' under the general protections part as follows:
  1. (1)

    This section applies if—

(a) a person has been dismissed or has been affected by another contravention of this part; and

(b) the person or an organisation that has a right to represent the industrial interests of the person claims that the person has been dismissed or has been affected by another contravention of this part.

  1. (2)
    The person or organisation may apply to the commission for the commission to deal with the dispute.
  1. [43]
    The Applicant further submitted that s 312 of the IR Act enables the QIRC to deal with an Application made under s 309 "where it is satisfied that all attempts / endeavours to conciliate the dispute have been unsuccessful."[4]
  1. [44]
    Section 312(1) of the IR Act states that (emphasis added):

If an application is made under section 309, the commission must hold a conference to attempt to settle it by conciliation before it hears the application.

  1. [45]
    It is worth noting that the Form 4 Application was not one made under s 309 – that would properly have been a Form 2 General Application.  It follows then that no conference was held as required under s 312(1) before the Hearing of this matter.
  1. [46]
    Ms Mancini's representative referred to Practice Direction Number 4 of 2021.  He submitted that I may dispense with the requirement that the parties comply with the Practice Direction if I deem it appropriate.  In particular, reference was made to cl 1 which provides that an application under s 309 of the IR Act is to be made using a Form 2.  The Applicant's position was that this could be easily addressed by the filing of a Form 2 Application with the Industrial Registry later that same day, if required. 
  1. [47]
    However, a fuller consideration of Div 8, Chp 8 of the IR Act revealed the incorrect filing of the Form 4 Application was not the only impediment.  The hurdle presented by the mandatory requirement to first conference the matter under s 312(1) of the IR Act could not be cleared.
  1. [48]
    In this regard, the Respondent argued:
  • that s 314(1)(f) confers a power on the QIRC to make "an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part." However, the Respondent contended that there is no application currently before the QIRC in relation to any adverse action and there has been no application brought to deal with a dispute under the general protections part of the IR Act until the date of the Hearing.
  • that because the Respondent has not been provided with any allegations made under s 309 of the IR Act, it would be procedurally unfair to grant an injunction under s 314 without an application being properly made.
  • s 312 requires that, "If an application is made under section 309, the commission must hold a conference to attempt to settle it by conciliation before it hears the application." As an application has not been properly made under s 309 of the IR Act, a conference has not been held. 
  1. [49]
    I am persuaded by the Respondent's arguments with respect to ss 309 and 312 - and thence the futility of making an order under s 314. 
  1. [50]
    The relief that may otherwise have been available under s 314 simply cannot be granted for the reason that an Application has not been properly made under s 309.
  1. [51]
    In addition, I would make the following observations. 
  1. [52]
    Ms Mancini's substantive matter has been brought as an Anti-Discrimination claim.  It will be decided on the mandatory tests contained in the AD Act.[5]  Those questions are entirely different to the mandatory tests by which a General Protections claim is decided.[6]  'Adverse Action' is a term intrinsic to General Protections determinations addressed at s 282 of the IR Act.  That is not the pathway by which Ms Mancini has elected to pursue her matter.  Relevantly, Ms Mancini has commenced these processes in accordance with the AD Act. Of direct relevance is DP Merrell's recent considerations in Morgan v State of Queensland (Queensland Health), where he states:

There is a further reason why I would not grant the interim injunction of the kind sought by Mr Morgan under s 314, and that simply is that there has been no application filed and served on the State of Queensland alleging contraventions of ch 8, pt 1 of the Act. I would not make orders of the kind sought by Mr Morgan today without the State of Queensland being properly appraised of the specific allegations made by Mr Morgan that he has been the subject of prohibited conduct within the meaning of ch 8, pt 1 of the Act.[7]

  1. [53]
    Similarly here, no such adverse action proceeding has been filed by Ms Mancini and so accordingly there is no jurisdiction for me to consider the purported General Protections claim.
  1. [54]
    This should not necessarily be taken as encouragement to the Applicant to now file a General Protections matter because s 456(1) of the IR Act states that the Commission may dismiss an application if the subject of the application or complaint is being, or has been dealt with by the Commission in another proceeding.  In a similar vein, s 541(b)(ii) also refers to circumstances where further proceedings by the commission are not necessary or desirable in the public interest.  This includes the caution against initiating multiple proceedings about the same subject matter.[8] 

Sections 541 and 544

  1. [55]
    In oral submissions at the Hearing, the Applicant's representative also argued that, in the alternative, the order can be made pursuant to ss 541 and 544 of the IR Act.
  1. [56]
    Section 541 of the IR Act provides as follows (emphasis added):

The court or commission may, in an industrial cause do any of the following—

 (a)  make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

 (b)  dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—

  (i) the cause is trivial; or

  (ii)  further proceedings by the court or commission are not necessary or desirable in the public interest;

 (c)  order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

  1. [57]
    Section 544 of the IR Act provides as follows (emphasis added):
  1. (1)
    In the exercise of its jurisdiction, the court or commission may—

(a) make the decisions it considers necessary—

(i) in the interests of justice in proceedings before it; and

(ii) for the execution of another decision of the court or commission; and

(b) enforce its own decisions; and

(c) direct the issue of a writ or process; and

(d) impose and enforce a penalty allowed or prescribed by this Act or another Act in the same way a Supreme Court judgment is enforced.

  1. (2)
    A decision of the court or commission must be made and enforced in the same way as a judgment or order of the Supreme Court.
  1. (3)
    For subsection (2), the Uniform Civil Procedures Rules must be complied with to the extent reasonably possible, with the amendments the court or commission approves.
  1. (4)
    The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court or Magistrates Courts (court officers) are taken to be officers of the court and commission for—

(a) a decision, including the enforcement of a decision, of the court or commission; and

(b) imposing functions or conferring powers on court officers under the rules.

  1. [58]
    The Applicant submitted that ss 541 and 544 of the IR Act confers power on the QIRC to make the order sought.  The contention was that s 541 provided an "inherent jurisdiction for this Commission to make an order equivalent or about the order sought"[9] and that s 544 provided a desirability of doing so "in the interests of justice".  Elaborating as to 'why' the outcome sought was said to be in the interests of justice, the Applicant stated that:

there would be no practical purpose or reason for the applicant to continue in that cause on the basis that she were terminated for ill health subject to show cause proceedings.[10]

  1. [59]
    I do not agree that is the case.  My reasons follow.
  1. [60]
    Section 541 contains a broad power, but that is not unfettered.  I am to consider the objects, scope and purpose of the Act in exercising my discretion under s 541.  There is certainly a requirement to consider and determine relevant matters of fact and law in considering the exercise of that discretion.  In that regard, I have determined that an alternative remedy under the AD Act exists to address the allegations of discrimination Ms Mancini complains of.
  1. [61]
    The Respondent noted that s 541 refers to decisions generally but relates back to powers incidental to jurisdiction as outlined in s 539.  In Morgan v State of Queensland (Queensland Health), DP Merrell observed that:

Section 539 does not refer to a power to grant an injunction on any basis and in my view is limited to make directions or orders incidental to the Commission's jurisdiction as conferred in other sections of the Industrial Relations Act 2016.[11] 

  1. [62]
    With respect to s 544, this touches on the remedy Ms Mancini seeks in the substantive matter.  That is contained in the Complainant's Statement of Facts and Contentions filed 12 May 2021:

 a. The Complainant is seeking an Order for Compensation for general damages. The amount of $20,000 is claimed.

 b. The Complainant is seeking an order that the Respondent pay out her remaining entitlements to recreational leave and LSL at half pay until exhausted.

 c. The Complainant does not claim any other damages or interest.

 d. The Complainant is seeking an Order that the Respondent shall write a letter of apology to the Complainant, apologising for its misconduct in this matter.

  1. [63]
    The expression of that precise remedy in the Complainant's Statement of Facts and Contentions is important.  Pleadings in this jurisdiction do not carry the same formality as in other civil jurisdictions.  Even so, parties are bound by their materials.  In that regard, Justice Martin said:

The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument.[12]

  1. [64]
    In light of the remedy sought, the argument that granting this Form 4 Application is necessary because Ms Mancini's potential termination would effectively scuttle her current AD claim is unfathomable.  I note that the remedy sought does not include a desire to "transfer or redeploy the employee" to another Department, as advocated at the Hearing.  But even if it did so, the Commission is empowered by s 209 of the AD Act to make a vast array of orders if a complaint is proved.  Specifically, s 209(4) provides for "employing, reinstating or re-employing a person" or "moving a person to a specified position within a specified time". 
  1. [65]
    Section 209 of the AD Act provides as follows:
  1. (1)
    If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders—

 (a)  an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;

 (b)  an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as

  compensation for loss or damage caused by the contravention;

 (c)  an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;

 (d)  an order requiring the respondent to make a private apology or retraction;

 (e)  an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

 (f)  an order requiring the respondent to implement programs to eliminate unlawful discrimination;

 (g)  an order requiring a party to pay interest on an amount of compensation;

 (h)  an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.

  1. (2)
     An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person.
  1. (3)
     If, in respect of a representative complaint—

 (a)  the tribunal decides that the respondent contravened the Act; but

 (b)   the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made;

 the person may subsequently make a request for the tribunal to assess the person’s loss or damage.

  1. (4)
    In this section, the specified things a respondent may be required to do, include, but are not limited to—

 (a)  employing, reinstating or re-employing a person; or

 (b)  promoting a person; or

 (c)  moving a person to a specified position within a specified time.

  1. (5)
    In this section—

 damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.

  1. [66]
    The remedies claimed by Ms Mancini in her Statement of Facts and Contentions are addressed in s 209(1)(b), (c), (d) and (e).
  1. [67]
    I find that there is no power to grant the orders sought under ss 541 and 544 for the reasons above.

Section 473

  1. [68]
    As I found in Seen v Rebel Sport Limited,[13] s 473 of the IR Act provides that the Commission has a limited injunctive power. The Commission may grant an injunction under that power:
  1. to compel compliance with an industrial instrument, a permit or this Act; or
  1. to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
  1. [69]
    I would just draw particular attention to the term 'this Act', meaning the IR Act.  'Industrial instrument' is defined in sch 5 to mean:
  1. an award; or
  1. a certified agreement; or
  1. an arbitration determination; or
  1. a code of practice under section 389; or
  1. an order under chapter 2, part 5 or 6.
  1. [70]
    The order sought by Ms Mancini does not seek that the Respondent comply with the specific industrial instrument. Nor did it seek to restrain a contravention of an industrial instrument, or the IR Act.  Ms Mancini's claim in her Statement of Facts and Contentions was that a contravention of the AD Act was to, or had, occurred.  The Respondent for their part submitted that the resumption of the show cause process objected to by Ms Mancini was taking place under s 178 of the PS Act.[14] 
  1. [71]
    While I acknowledge the belated reference to the term 'adverse action' in the Applicant's filed materials of 31 May 2021, the limitations in the circumstances have been extensively addressed above.
  1. [72]
    In the absence of explicitly seeking compliance with the IR Act, a permit or an industrial instrument, or preventing non-compliance of those, it would not be appropriate to make an order under s 473 and so I would refuse it on that basis.
  1. [73]
    A further argument against granting the orders sought was made by the Respondent, invoking Justice Martin's decision in Darlington v State of Queensland (Queensland Police Service).[15]  In that matter, the then President dismissed an appeal against a Commission decision to decline to grant an injunction on the basis that the power to do so was excluded by s 277(11)[16] of the Industrial Relations Act 1999 (Qld). The equivalent s 473 in the current IR Act provides that:

The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.

Section 316 pertains to unfair dismissals.

  1. [74]
    Justice Martin found that the Commission had no power to grant an injunction under (the equivalent s 473 of the current IR Act) s 277(11) against an employer who proposes to dismiss an employee.  He said:

…it is reasonably obvious that the sub-section is to have the effect of precluding the Commission from issuing an injunctive order against an employer who proposes to dismiss an employee.  The effect of this construction is that there need only be one occasion when the fairness of a dismissal is tested, that is, after it has taken place.  To do otherwise would expose an employer to litigation both before and after a dismissal.[17]

That is also directly relevant to my considerations of this matter.

Principles for an interim injunction

  1. [75]
    I have found that the Commission has no power to grant the order sought for the reasons explained earlier in this Decision.
  1. [76]
    However, if I am wrong on that conclusion, then I will address the relevant principles for an interim injunction below.
  1. [77]
    The principles to consider for an order of the kind sought by the Applicant are reasonably well settled.
  1. [78]
    In Australian Workers' Union v Chemring Australia Pty Ltd, Snaden J summarised the principles in the following way:

35 The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute.  In order to qualify for the relief that it seeks, the AWU must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction:  Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

36 By its written submissions, the AWU helpfully summarised the relevant principles as follows:

32.  An applicant for an interlocutory injunction needs to establish that their prima facie case has a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The strength of the likelihood depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: O'Neill at [65]. See the discussion of the approach in Quinn v Overland (2010) 199 IR 40 at [45]-[46] per Bromberg J and AWU v Dee Vee [2012] FCA 988 at [17]-[18] per Tracey J.

33.  When considering the grant of an interlocutory injunction, the issue of whether the applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: see Samsung Electronics Co. Ltd v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [67] citing with approval Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 per Sundberg J at [15].

34.  In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated at 472:

"Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.”

37 I am grateful for that summary and adopt it in full.  I would add only that an applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy:  Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); CEPU v Blue Star Pacific (2009) 184 IR 333, 339 (Greenwood J).[18]

  1. [79]
    It is necessary to consider whether Ms Mancini’s interests in the pursuit of her current Anti-Discrimination matter might be prejudiced if she was to be medically retired before the complaint was finally conciliated, then heard and determined. 
  1. [80]
    Having regard to the balance of convenience and whether a prima facie case has been established, I am not satisfied that there has been sufficient grounds established for granting an interim injunction.  My reasons follow.
  1. [81]
    Essentially, Ms Mancini’s complaint in her substantive matter alleged that the QFES’s decision to refer her for an IME and subsequently give consideration to her ill health retirement constituted unlawful discrimination in contravention of the AD Act. 
  1. [82]
    In bringing the Form 4 Application, subject of this Decision, Ms Mancini seeks an order (emphasis added):

to protect her rights by directing that the QFES shall not take any action concerning the termination of the Applicant's employment, until and unless the QIRC has heard and determined matter number AD/2021/13, or that the case is otherwise negotiated and settled by the parties.

  1. [83]
    Or as expressed at the Hearing, that is (emphasis added):

to seek relief in the form of an order from this Commission, directing the respondent not to take further action or pursue its current show cause proceedings against the applicant, until and unless the current matter - that is the Anti-Discrimination application made in 2021/13, is heard and determined by the Commission.[19] 

Prima facie case

  1. [84]
    In considering whether a prima facie case is made out, I have considered the material before me and the parties’ oral submissions.  Further, the question is not whether the complaint will be substantiated.  The test is less onerous than that.  That is worth bearing in mind if the complaint progresses further. 
  1. [85]
    The complaint, as articulated in Ms Mancini’s Statement of Facts and Contentions, as currently filed,[20] regards direct discrimination,[21] victimisation[22] and a work-related contravention.[23] 
  1. [86]
    Those matters are defined at ss 10, 130 and 15 of the AD Act.
  1. [87]
    Direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. 
  1. [88]
    The relevant attribute is said to be an impairment.
  1. [89]
    Ms Mancini has filed medical reports that attest to her condition.  Schedule 1 of the AD Act defines impairment to include "a condition that impairs a person’s thought process, emotions or judgment".  The material before me with respect to that issue deposes to psychological symptoms.  On its face, that would constitute an impairment within the broad definition in sch 1. 
  1. [90]
    Ms Mancini has submitted that the real comparator was treated differently – and that she herself was treated less favourably in comparison - on the basis of the protected attribute of impairment.
  1. [91]
    It was submitted that the relevant treatment that would constitute the prima facie case was explained in the Outline of Submissions, where the Applicant’s representative had stated that:

Notwithstanding that the Respondent found alternative employment for a colleague of the Applicant (Ms Ford), who had also been bullied and harassed in the same incident as that concerning the Applicant – but who did not suffer a significant psychological injury, no alternative placement – elsewhere in the Qld public service was arranged for the Applicant.[24]

  1. [92]
    Ms Mancini’s representative relied on those submissions to demonstrate that a prima facie case had been made out that she had been treated differently to a real comparator on the basis of the impairment. 
  1. [93]
    The allegations of victimisation and the work-related contravention were not elaborated in any detail at this Hearing.
  1. [94]
    The Respondent was also invited to make oral submissions on that point but declined to do so, instead relying on their earlier arguments that there was simply no power for the Commission to make the order sought.  Thus, it was put that there was no requirement to get to consideration of the relevant principles.
  1. [95]
    The High Court has noted that, with respect to a prima facie case:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.[25]

  1. [96]
    That was followed in Australian Broadcasting Corporation v O'Neill.[26] In this Commission, that was followed in Bond v Multicap Limited.[27]  In Bond,[28] Industrial Commissioner Power observed the relevant inquiry to be:

Has the applicant made out a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial…

  1. [97]
    As such, on the as yet quite limited material before the Commission at this stage of proceedings on Ms Mancini’s current Anti-Discrimination claim on foot, a prima face case of discrimination has not yet been made out.

 Balance of Convenience

  1. [98]
    In Banovic v State of Queensland, Department of Education,[29] Industrial Commissioner Dwyer said, at paragraph 66:

Evaluating where the balance of convenience lies, involves the weighing of competing prejudices to each party in circumstances where the injunction is or is not ordered.  Whether such disadvantages could be overcome with an order for compensation, if the applicant were successful at the final hearing, is a significant factor in the consideration. 

  1. [99]
    It is useful to reiterate that, broadly, the orders sought would prevent Ms Mancini from being prejudiced in her employment with QFES, until the substantive matter is heard and determined.  That would include the potential for the termination of her employment, as a medical retirement, if that were to be the resultant outcome of the show cause process underway that Ms Mancini seeks to prevent. 
  1. [100]
    With regard to potential prejudice to Ms Mancini, her representative submitted that she had been absent from the workplace for some time, was currently on leave without pay and as such:

there is little to no harm caused to the respondent by their being directed by this commission, or indeed, if they're prepared to agree to formalise an agreement, to desist - cease and desist from the current show cause action, until such time as the applicant's case is heard and determined.[30] 

  1. [101]
    Ms Mancini's representative further argued that there would be harm and injustice caused to the Applicant if the order was not granted because she is not receiving any form of remuneration.  This is causing her severe financial hardship.  It was stated that Ms Mancini "…feels unable to get on with her life and make further steps and progress, either back into the workforce in the public service or elsewhere, until this matter, this dispute can be resolved."[31]  It was asserted that the balance of convenience tipped in Ms Mancini's favour for those reasons.
  1. [102]
    With respect to the Respondent's submissions on the matter, it was simply that there is no power for the Commission to make the order sought and thus no requirement to get to consideration of the relevant principles.
  1. [103]
    In my view, the show cause process (dependant on the eventual outcome of the paused process) and any resultant action that may arise (which may include the termination of Ms Mancini’s employment, through medical retirement) would not prejudice the resolution of her current Anti-Discrimination complaint.  In such circumstances, Ms Mancini could proceed with her case in the usual way.
  1. [104]
    The submission was made that Ms Mancini would be prejudiced by being potentially medically retired, as she would be without an income.  However, I appreciate that that is also currently the case.
  1. [105]
    The Commission is empowered by s 209 of the AD Act to make a vast array of orders if a complaint is proved. 
  1. [106]
    Ms Mancini seeks an award of damages.  There is no reason why this Commission could not make such an order if her employment were to be terminated.  If it were the case that such action increased the award of damages, then so be it.  That circumstance would not stymie this Commission’s power to make such an award. 
  1. [107]
    Even if it were the case that Ms Mancini sought an order to the effect that she be given a further opportunity to respond to the show cause process, that too could be facilitated by orders available to this Commission.  The Commission could order that Ms Mancini be reinstated or re-employed, be given a further opportunity to respond, and accompany that with an award of damages, if appropriate. Further still, if the Commission found it was inappropriate to order reinstatement or re-employment for some reason, I accept that loss could be compensated by damages. 
  1. [108]
    There is little or no prejudice to the Commission’s ability to make orders, if the show cause process embarked upon by the QFES were to result in the termination of Ms Mancini’s employment. 
  1. [109]
    In considering the balance of convenience, it is not lost on me that the time for an Ani-Discrimination complaint progressed at the Commission to be further conferenced, then be heard and determined, could be quite some time.  That is relevant to Ms Mancini’s prejudice, but also to the Respondent’s prejudice as well.
  1. [110]
    While I accept that Ms Mancini would be disadvantaged, she would be able to seek employment elsewhere.  On the other hand, the Respondent would be required to either convince Ms Mancini to resolve her current matter, pause the current show cause process for quite some time yet or to make endeavours to otherwise transfer or redeploy her.  The fact of ongoing uncertainty for both parties is of significance in this case.

Conclusion

  1. [111]
    So in conclusion, in weighing the parties’ written submissions and oral submissions, I have determined that the Application ought be dismissed. 
  1. [112]
    The Respondent is correct in its contentions that the sections under which the Applicant has sought such an order do not confer the power to grant that relief. 
  1. [113]
    Having regard to the balance of convenience and whether a prima facie case has been established, I cannot be satisfied that there are sufficient grounds for granting an interim injunction.  What is reasonable in this case requires consideration of all the relevant circumstances. In my view, it is not reasonable to pause the finalisation of the show cause process for quite some time into the future, until the substantive matter can be further conciliated, heard and determined by this Commission.
  1. [114]
    I order accordingly.

Orders

  1.  That the Form 4 Application is dismissed.
  1. That costs are reserved until such time as the complaint is resolved, either by agreement save as to costs, or by decision of this Commission.

Footnotes

[1] Mancini v State of Queensland (Queensland Fire and Emergency Services) (Queensland Industrial Relations Commission, Dwyer IC, 15 June 2020).

[2] Transcript of Hearing, 31 May 2021, 1-6 [38].

[3] Outline of Submissions for the Applicant, filed 31 May 2021, 2 [16].

[4] Outline of Submissions for the Applicant, filed 31 May 2021, 3 [22].

[5] Specifically, s 10 of the AD Act with respect to the claim of direct discrimination on the basis of the attribute of ‘impairment.’

[6] Industrial Relations Act 2016 (Qld) s 285.

[7] [2020] QIRC 184, 8 [33].

[8] In Australia Post v Russell & Anor [2002] ICQ 36, President Hall observed "However, there seems no doubt that the power of s. 331(b)(ii) of the Industrial Relations Act 1999 might be invoked to remedy any abuse arising from the making of successive applications."  Section 331(b)(ii) of the Industrial Relations Act 1999 (Qld) is relatively indistinguishable from s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).  Further, in Johnson v Gore Wood and Co [2000] UKHL 65, Lord Bingham said, "The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter." Should any application be made, the parties and the Commission would no doubt have regard to s 456(1) and 541(b)(ii) of the IR Act in assessing the merits of such an action.

[9] Transcript of Hearing, 31 May 2021, 1-8 [27].

[10] Transcript of Hearing, 31 May 2021, 1-9 [6].

[11] [2020] QIRC 184, 7 [27].

[12] Carlton v Blackwood [2017] ICQ 001, 5 [18].

[13] [2021] QIRC 086, 4 [8]-[11].

[14] That is, the consideration of action following medical examination report.

[15] [2016] ICQ 020.

[16] Equivalent provision of the Industrial Relations Act 2016 (Qld) is s 473.

[17] Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020, 8 [19].

[18] [2019] FCA 750.

[19] Transcript of Hearing, 31 May 2021, 1-6 [38].

[20] Noting that the Respondent's representative indicated that the Complainant was required to amend the Statement of Facts and Contentions filed, so that it contained the full details of the contraventions alleged, as required by the Directions Order issued by Industrial Commissioner Pidgeon.

[21] Anti-Discrimination Act 1991 (Qld) s 10.

[22] Ibid s 130.

[23] Ibid s 15.

[24] Outline of Submissions for the Applicant, filed 31 May 2021, 2 [8].

[25] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622.

[26] (2006) 227 CLR 57.

[27] [2020] QIRC 051.

[28] Ibid.

[29] [2019] QIRC 132.

[30] Transcript of Hearing, 31 May 2021, 1-9 [36].

[31] Transcript of Hearing, 31 May 2021, 1-9 [47].

Close

Editorial Notes

  • Published Case Name:

    Mancini v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Mancini v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2021] QIRC 192

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    02 Jun 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
Australia Post v Russell & Anor [2002] ICQ 36
2 citations
Jump To
Cite 1 - [2002] ICQ 36
Cite 2 - [2002] ICQ 36
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
3 citations
Jump To
Cite 1 - (2006 ) 227 CLR 57
Cite 2 - (2006 ) 227 CLR 57
Cite 3 - (2006 ) 227 CLR 57
Australian Workers' Union v Chemring Australia Pty Ltd [2019] FCA 750
2 citations
Jump To
Cite 1 - [2019] FCA 750
Cite 2 - [2019] FCA 750
AWU v Dee Vee [2012] FCA 988
1 citation
Jump To
Cite 1 - [2012] FCA 988
Banovic v Queensland [2019] QIRC 132
2 citations
Jump To
Cite 1 - [2019] QIRC 132
Cite 2 - [2019] QIRC 132
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
2 citations
Jump To
Cite 1 - (1968) 118 CLR 618
Cite 2 - (1968) 118 CLR 618
Bond v Multicap Limited [2020] QIRC 51
2 citations
Jump To
Cite 1 - [2020] QIRC 51
Cite 2 - [2020] QIRC 51
Bullock v FFTSA (1985) 5 FCR 464
1 citation
Jump To
Cite 1 - (1985) 5 FCR 464
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
1 citation
Jump To
Cite 1 - (1986) 161 CLR 148
CEPU v Blue Star Pacific (2009) 184 IR 333
1 citation
Jump To
Cite 1 - (2009) 184 IR 333
Darlington v Queensland [2016] ICQ 20
3 citations
Jump To
Cite 1 - [2016] ICQ 20
Cite 2 - [2016] ICQ 20
Cite 3 - [2016] ICQ 20
Johnson v Gore Wood & Co [2000] UKHL 65
2 citations
Jump To
Cite 1 - [2000] UKHL 65
Cite 2 - [2000] UKHL 65
Morgan v State of Queensland (Queensland Health) [2020] QIRC 184
3 citations
Jump To
Cite 1 - [2020] QIRC 184
Cite 2 - [2020] QIRC 184
Cite 3 - [2020] QIRC 184
Quinn v Overland (2010) 199 IR 40
1 citation
Jump To
Cite 1 - (2010) 199 IR 40
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
1 citation
Jump To
Cite 1 - (2011) 217 FCR 238
Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156
1 citation
Jump To
Cite 1 - [2011] FCAFC 156
Seen v Rebel Sport Limited [2021] QIRC 86
2 citations
Jump To
Cite 1 - [2021] QIRC 86
Cite 2 - [2021] QIRC 86
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595
1 citation
Jump To
Cite 1 - [2009] FCA 595
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339
1 citation
Jump To
Cite 1 - (2009) 81 IPR 339

Cases Citing

Case NameFull CitationFrequency
McDowell v Cash Converters (Stores) Pty Ltd (No 2) [2022] QIRC 1103 citations
1

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