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Smith v State of Queensland (Queensland Health) & Anor[2021] QIRC 340

Smith v State of Queensland (Queensland Health) & Anor[2021] QIRC 340

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Queensland Health) & Anor [2021] QIRC 340

PARTIES: 

Smith, Paul

(Applicant)

v

State of Queensland (Queensland Health)

(First Respondent)

&

Gold Coast Hospital and Health Service

(Second Respondent)

CASE NO.:

GP/2021/19

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

1 October 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

The Applicant's application for an interim injunction is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND DEFINITIONS AND INTERPRETATION – OTHER MATTERS – application to stay disciplinary process commenced under the Public Service Act 2008 (Qld) – application for interim injunction to restrain further action being taken in disciplinary process because of alleged contravention of the Industrial Relations Act 2016 (Qld) – whether Commission has power to grant an interim injunction to restrain a disciplinary process, commenced under the Public Service Act 2008 (Qld), pursuant to s 473 of the Industrial Relations Act 2016 (Qld) order that application for interim injunction is dismissed

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld)

Industrial Relations Act 2016 (Qld), ss 282, 285, 306, 313, 314, 316, 472 and 473

Public Service Act 2008 (Qld), ss 187, 188, 190 and 192

CASES:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525

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

Currie v Brisbane City Council [2011] QIRC 70

Dalley & Ors v Kelsey & Ors [2018] ICQ 006

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

Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

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

Pereira v State of Queensland (Department of Health, Queensland Ambulance service) & Anor [2019] QIRC 136

Police Federation of Australia v Nixon [2008] FCA 467

Queensland Nurses and Midwives' Union of employees v West Moreton Hospital and Health Service [2020] QIRC 049

Reasons for Decision

  1. [1]
    Mr Paul Smith ('the Applicant') is presently employed by the State of Queensland (Queensland Health) ('the First Respondent'). Since 29 June 2020, the Applicant has been employed in the role of Service and Data Manager within the Gold Coast Hospital and Health Service ('the Second Respondent').[1] 
  1. [2]
    On or about 16 March 2021, the Applicant received correspondence from Mr Des Lacy of CorpSec International outlining allegations against the Applicant and requesting the Applicant attend an interview. On 29 March 2021, the Applicant attended an interview with Mr Lacy with his support person from Together Queensland, Industrial Union of Employees.
  1. [3]
    On or about 25 May 2021, the Applicant was provided correspondence detailing a number of allegations and requesting that he show cause as to why he should not be subject to discipline under the Public Service Act 2008 (Qld) ('PS Act').
  1. [4]
    The Applicant provided a written response to the show cause letter on 16 June 2021.
  1. [5]
    On or about 5 August 2021, the Applicant was provided correspondence advising that the allegations had been substantiated and requesting the Applicant show cause as to why his employment should not be terminated. The Applicant was provided seven calendar days to respond. 
  1. [6]
    The Applicant filed an application in the Commission on 12 August 2021, seeking a range of orders in relation to a general protections claim under the Industrial Relations Act 2016 (Qld) ('the IR Act'). These orders include an order that the Respondent be restrained from unreasonably pursuing disciplinary action against the Applicant arising out of the relevant allegations.
  1. [7]
    A conference was held at the Commission on 14 September 2021 and the Applicant advised that they would be seeking an injunction to prevent the disciplinary process from continuing until the general protections matter has been determined. The parties consented to the injunction matter being determined on the papers and subsequently filed submissions relating to the interlocutory orders sought.  
  1. [8]
    The orders sought by the Applicant are that:
  1. (a)
    pursuant to s 314(1)(f) of the IR Act, the Applicant seeks an injunction to restrain the Respondents from pursuing the disciplinary process against the Applicant until the finalisation of the matter; and
  1. (b)
    alternatively, pursuant to s 473(1)(b) of the IR Act, the Applicant seeks an injunction to restrain the Respondents from pursuing the disciplinary process against the Applicant until the finalisation of the matter.
  1. [9]
    In the affidavit of the Applicant filed on 21 September 2021, the Applicant alleges that he has been the subject of adverse action because of an exercise of workplace rights, because of his sex or because he has had or is having domestic violence committed against him.
  1. [10]
    The proposition put by the Applicant is that the Second Respondent, in undertaking the disciplinary process against him, is contravening the provisions of Chapter 8, Part 1 of the IR Act.

Section 473 of the IR Act

  1. [11]
    The power to grant an injunction is conferred by section 473(1) of the IR Act, which provides:

473 Power to grant injunctions

  1. (1)
    On application by a person under section 474, the commission may grant an injunction—
  1. (a)
    to compel compliance with an industrial instrument, a permit or this Act; or
  1. (b)
    to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

  1. [12]
    In Morgan v State of Queensland (Queensland Health) ('Morgan'),[2] Deputy President Merrell considered a similar application for an injunction to prevent the continuance of a disciplinary process under the PS Act, stating:

From a practical point of view, the act that Mr Morgan seeks Ms Dymond not do is to proceed with the next step in the disciplinary process under the Public Service Act 2008, namely, to determine the disciplinary action, if any, that should be taken against him, having regard to the substantiated allegations. Section 473 of the Act is not available to Mr Morgan to secure such an order. Section 473 is only available to grant an injunction so as to compel compliance with an industrial instrument, a permit or this Act; or to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or the Act.

Section 473(1) of the Act is not available to 'restrain or prevent a contravention' or 'to compel compliance' with the disciplinary procedures referred to in s 190 of the Public Service Act 2008.[3]

  1. [13]
    The Respondent submits that the practical effect of the orders sought by the Applicant is to 'restrain or prevent a contravention' or 'to compel compliance' with the disciplinary procedures provided by the PS Act. I agree with this characterisation of the orders sought. The Applicant has been subject to a disciplinary process under the PS Act, with the requirements for potential termination of employment subject to s 190 of the PS Act. The next step in the disciplinary process is for the chief executive to determine what disciplinary action to take under s 188 of the PS Act along with whether to provide the Applicant a notice of termination pursuant to s 192 of the PS Act. An injunction cannot be issued in these circumstances to 'prevent contravention' or to 'compel compliance' with another Act, in this case, the PS Act.
  1. [14]
    Section 473(9) of the IR Act provides that the Commission's power to grant an injunction is limited:
  1. (9)
    The commission can not grant an injunction for a proposed contravention of section 316, 326, 32 or 330.
  1. [15]
    President Martin considered the equivalent provision to s 473(9) of the IR Act in the Industrial Relations Act 1999 (Qld) in Darlington v State of Queensland (Queensland Police Service),[4] and determined that the Commission was precluded from issuing an injunctive order against an employer who proposed to dismiss an employee:

When the words of s 277(11) are read together in that way 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 proposed 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.[5]

  1. [16]
    In Currie v Brisbane City Council,[6] Vice President Linnane determined that, in respect to the equivalent provision in the Industrial Relations Act 1999 (Qld), the Commission could not grant an injunction where it is claimed there was a denial of natural justice or other unfairness:

Section 77 of the Act outlines those matters which the Commission must consider in deciding whether a dismissal was harsh, unjust or unreasonable. One such matter found in s. 77(c) of the Act is, in circumstances where the dismissal relates to an employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance and whether the employee was given an opportunity to respond to the allegation about conduct, capacity or performance.

Thus, if as the Applicant alleges, there was some denial of natural justice or some unfairness in the events leading to the Applicant's dismissal, then those matters can be dealt with in an unfair dismissal application. The Commission is, however, prevented from utilising any injunctive power found in s 277 of the Act in respect of such matters.[7]

  1. [17]
    In Morgan, Deputy President Merrell made the following determination:

In any event, for the reasons given earlier, an injunction cannot be granted for a proposed contravention of, amongst other sections, s 316 of the Industrial Relations Act 2016. This provides that dismissal is unfair if it is harsh, unjust or unreasonable. It seems to me, that having regard to the arguments provided to the State of Queensland in the disciplinary process thus far, and from the arguments presented to the Commission today, what is alleged is that the proposed dismissal of Mr Morgan would be harsh, unjust or unreasonable. In those circumstances, even if s 473(1) was applicable in present circumstances, an injunction cannot be issued for those reasons.[8]

  1. [18]
    The Applicant has been requested to show cause as to why his employment should not be terminated. The Applicant's material filed in the Commission[9] allege that the proposed dismissal from his employment would be unfair and unreasonable. As indicated above, to order an injunction in this matter would expose the Respondent to litigation both before and potentially after dismissal and is contrary to ss 473(1) and 473(9) of the IR Act. I am of the view that the Commission does not have the power to order an injunction under this section as sought by the Applicant.

Sections 313 and 314 of the IR Act

  1. [19]
    Sections 313 and 314 of the IR Act provides:

313  Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle the matter by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by –

  1. (a)
    making an order under section 314; or
  2. (b)
    dismissing the application.

314  Orders on deciding application

  1. (1)
    Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313 –
  1. (a)
    an order for reinstatement of the person;
  2. (b)
    an order for the payment of compensation to the person;
  3. (c)
    an order for payment of an amount to the person for remuneration lost;
  4. (d)
    an order to maintain the continuity of the person’s employment;
  5. (e)
    an order to maintain the period of the person's continuous service with the employer;
  6. (f)
    an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
  1. (2)
    A person to whom an order under subsection (1) applies must not contravene a term of the order.

Note

 This subsection is a civil penalty provision.

  1. [20]
    Sections 313 and 314 of the IR Act do not allow for an order to be made pursuant to s 314(f) prior to the application being heard and decided. Section 313 provides that the Commission may 'hear and decide' the application by making an order under s 314. Section 313 refers to an application being conciliated and, if unsuccessful, arbitrated. The term 'application' in ss 313 and 314 must be considered in the context in which these provisions are located in the IR Act, which is alongside the general protections provisions in Chapter 8, Part 1 of the IR Act. The usual meaning of the words in this section would indicate that it is the substantive application that is conciliated, and if unsuccessful, the substantive matter is then arbitrated through the usual process of a hearing.
  1. [21]
    Section 314(f) provides an interim or other injunction or other order may be made to prevent, stop, or remedy the effects of a contravention of Chapter 8, Part 1 of the IR Act. In order to determine if there has, in fact, been a contravention of this part, the matter needs to be heard and determined. That is the substantive question, not a question that can be determined in an interlocutory application. The order sought pursuant to s 314(1)(f) can only be made in respect to the final relief sought in the application after the Commission had heard and decided the matter.

Considerations for relief

  1. [22]
    For the reasons outlined above, the Commission does not have the legislative power to make the orders sought by the Applicant. For completeness, I will consider the matters that are considered when there is a legislative basis for the orders.

Prima facie case

  1. [23]
    The Applicant submits there is a serious question to be tried as to his entitlement to relief. The Applicant asserts in his statement of facts and contentions and affidavit material that he exercised the following workplace rights:
  1. (a)
    He enquired into his employment and made the Respondents aware of mutual domestic violence orders concerning his former partner and himself;
  1. (b)
    he made complaints concerning assertions of, and material produced by, his former partner in the workplace;
  1. (c)
    he made complaints concerning his treatment by human resources staff of the Second Respondent; and
  1. (d)
    he made complaints concerning the behaviour of staff at the gala event.
  1. [24]
    The Applicant submits he has been subject to adverse action in the circumstances, that:
  1. (a)
    his former partner has made, and the Respondents have permitted the continued festering of, misleading representations to staff members of the Respondents as to domestic violence matters;
  1. (b)
    in light of such, the Respondents have sought to establish a safety plan for his former partner, and intimately involved those who work with her;
  1. (c)
    resulting from such, staff members have developed negative perceptions of the Applicant, and were thereby tainted;
  1. (d)
    because of such perceptions, the Applicant has been adversely treated at a workplace event;
  1. (e)
    because of such perceptions, staff intimately known to the Applicant's former partner have compiled statements and referred such to human resources, who themselves were involved in and had knowledge of, the former partner's safety plan;
  1. (f)
    an investigation was scoped on the material provided by the tainted individuals; and
  1. (g)
    the Applicant has resultingly been subjected to a disciplinary process which has culminated in his proposed dismissal.
  1. [25]
    The Applicant asserts on the facts outlined in his supporting material, that the Respondents have taken the adverse action (combined or separately) because of his exercise of workplace rights (combined or separately), his sex (male), and/or him being subject to domestic violence.
  1. [26]
    Section 306 of the IR Act provides that the reason for the action is to be presumed unless proved otherwise. Section 306(3) provides that this reverse onus does not apply in relation to orders for an interim injunction. President Martin considered the operation of this section in Dalley & Ors v Kelsey & Ors at [48]:[10]

In order to succeed at this level of hearing, Ms Kelsey must demonstrate a prima facie case that the Council terminated her employment because one of the factors in s 285(1)(a) of the IR Act was present…

  1. [27]
    President Martin then considered the question of the reverse onus in the context of an interim injunction:

While s 306(3) provides that the reverse onus does not apply in relation to orders for an interim injunction, that does not mean that the effect of s 306 may be ignored. The cognate provision in the Fair Work Act 2009 (Cth) is s 361. Its indistinguishable predecessor was s 809 of the Workplace Relations Act 1996 (Cth). It was considered by Greenwood J in CPSU v Blue Star Pacific Pty Ltd. I respectfully agree with what his Honour said about the effect of that section: 

"[24] Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction. However, it seems to me that the correct approach is this. The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial. At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out. In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application. The presumption cannot be determinative of the interlocutory application but its operation in the context of the trail is relevant to the strength of the probability of success at trial."[11]

  1. [28]
    I accept that the Applicant must demonstrate a prima facie connection between the alleged adverse action and the exercise of his workplace rights and attributes pursuant to s 306 of the IR Act, however, an assessment of the strength of the probability of success at trial requires consideration of the reverse onus on the evidence available.
  1. [29]
    The Applicant alleges the following incidents of adverse action:
  1. (a)
    Adverse action 1: The First Respondent developed a safety plan for his former partner and no such plan were developed for him;
  1. (b)
    Adverse actions 2 and 3: The Respondents took adverse action against him on the night of the gala event through the actions of three employees, Ms Emma Mockler, Ms Tracey Brooks, and Mr Roy Bekkeli;
  1. (c)
    Adverse action 4: The Respondents did not progress the Applicant's complaints following the gala event; and
  1. (d)
    Adverse actions 5 and 6: The Respondents took adverse action by providing a letter to show cause as to why disciplinary action should not be taken and a further show cause as to why his employment should not be terminated.
  1. [30]
    With respect to alleged adverse action 1, the Applicant does not state in his affidavit that he requested that the Respondents provide him with a safety plan nor that the Respondents declined to do so. The affidavit of Mr Andrew Stevens, Senior Workplace Relations Advisor of the Second Respondent, referred to the Domestic and Family Violence – Support for Employees Policy and noted that the policy provides that where an employee is concerned for their safety, the employee may work in consultation with the Second Respondent to undertake a safety and risk assessment and with their line manager to complete a workplace safety plan.
  1. [31]
    It appears that on 17 July 2020 and 29 July 2020, Ms Jacqueline Roberts, HR Business Partner, requested information from the Applicant in consideration of the preparation of a safety plan to support both parties in the workplace.
  1. [32]
    The affidavit of Mr Stevens states that the Second Respondent became aware that the Applicant and his former partner had obtained formal protection orders against each other under the Domestic and Family Violence Protection Act 2012 (Qld). The Second Respondent consulted with the Applicant and undertook a risk assessment and prepared a safety plan for the Applicant.
  1. [33]
    On the basis of the evidence in the affidavits of both the Applicant and Mr Stevens, I am not satisfied that there is a prima facie case that the Second Respondent did not develop a safety plan for the Applicant, and even if this was not the case, whether failure to develop a plan in circumstances in which no request had been made constitutes adverse action.
  1. [34]
    The descriptions of the events giving rise to alleged adverse actions 2 and 3 relate to a gala event held on 4 December 2020 organised by the Second Respondent. The Applicant alleges that the three employees of the Respondents, Ms Mockler, Ms Brooks, and Mr Bekkeli took adverse action against him on the night of the gala and describes the interactions in his affidavit.
  1. [35]
    The Applicant's evidence of the actions taken by the employees at the gala differs from that of the three other employees. Ultimately, this evidence will be considered at a hearing of the substantive matter. At this point, however, the allegation lacks particularity and it is unclear how the alleged actions of the other employees at the gala constitute adverse action within the meaning of s 282 of the IR Act.
  1. [36]
    Alleged adverse action 4 relates to the allegation that the Respondents did not progress the Applicant's complaint following the gala event. The evidence suggests that the Second Respondent commenced an independent investigation into the incident that occurred at the gala event following complaints from the Applicant and others. The terms of reference for the investigation indicate that the investigation was to examine the events which led to the incident at the work event and to identify specific allegations that are capable of investigation. The investigator was directed to gather factual evidence and make a recommendation as to whether the allegations can be substantiated on the balance of probabilities. On the evidence before me, it is not clear how the actions of the Respondents relating to allegation 4 constitute adverse action within the meaning of s 282 of the IR Act.
  1. [37]
    Alleged adverse actions 5 and 6 relate to the disciplinary process commenced by the Respondents. A number of authorities have considered the issue of whether a disciplinary process can be considered adverse action. I note the Applicant's reference to Jones v Queensland Tertiary Admissions Centre Ltd (No 2),[12] in which Collier J accepted that the commencement of an investigation could constitute the taking of adverse action. The Applicant also referred to Banovic v State of Queensland, Department of Education,[13] in which Industrial Commissioner Dwyer determined that a disciplinary process was capable of being considered adverse action.
  1. [38]
    A more recent consideration of this issue was in Gilbert v Metro North Hospital and Health Service & Ors ('Gilbert'),[14] where Vice President O'Connor referred to the reasoning in Police Federation of Australia v Nixon ('Nixon'),[15] stating:

Further, as observed by Ryan J, a disciplinary charge brought in good faith will not be said to have altered the position of an employee to their prejudice. His Honour wrote:

I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute ‘an adverse affection of, or deterioration in, the advantages enjoyed by the employee' in the sense used by the High Court in the passage from Patrick Stevedores quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis in the extract from Goldberg J's reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely "potential".[16]

  1. [39]
    The Applicant submits that the investigation and commencement of the disciplinary process in this matter has injured or altered his employment, and/or discriminated between himself and other employees. It is possible that the commencement of a disciplinary process may constitute adverse action, however this will not be the case in all circumstances.
  1. [40]
    The Applicant submitted that the letters provided to him acted to reduce the security of his future employment and as a result, injured or altered his employment. Applying the reasoning in Nixon, a disciplinary charge brought in good faith 'before the laying of the charge' may not constitute adverse action. However, when the charge is made out, as it has been in this matter, the disadvantage to the employee is no longer 'potential'. I also note the Applicant's reference to the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3),[17] in which it was determined that an investigation brought in good faith and carried out properly may nevertheless constitute adverse action if it reduces the security of future employment. I am satisfied that the letter of 5 August provided to the Applicant advising that the allegations had been substantiated and requesting he show cause as to why his employment should not be terminated did reduce the security of future employment and can therefore constitute adverse action.
  1. [41]
    The Applicant also submits that the disciplinary process, 'in light of domestic violence and being a male', discriminates between himself and other employees. The Applicant submits that a relevant comparator is his former partner, who is female and herself raised identical domestic violence issues to the attention of the Respondents. This submission is not particularised further and there is no evidence other than the Applicant's assertions regarding what he 'believes' to be the connection between the attributes and the adverse action. The disciplinary process relates to the Applicant's conduct at an event in which his former partner was not present. I am not persuaded that the Applicant's former partner is an appropriate comparator in the circumstances, nor that there is sufficient evidence before me that the disciplinary process discriminated against the Applicant on the basis of him being male or the subject of domestic violence.
  1. [42]
    As noted above, consideration of the reverse onus is not relevant to an interlocutory matter, however, I acknowledge that it may assist in determining the likelihood of the substantive matter succeeding at trial. There appears to be evidence in the form of the independent investigation report supporting the Respondents' assertions that the disciplinary process was commenced because of complaints regarding the Applicant’s conduct at the gala event.
  1. [43]
    After considering the above, I am not satisfied the Applicant has established a prima facie case that adverse action was taken because of his exercise of workplace rights or protected attributes. Although all evidence will ultimately need to be tested at hearing, the Respondents' evidence provides a plausible explanation for the actions taken and the Applicant's evidence, at this stage, involve assertions of belief that do not reach a causal link between the actions and the reasons the actions were taken.

Balance of convenience

  1. [44]
    The Applicant submits that the balance of convenience favours the granting of an interlocutory injunction in this matter. The Applicant submits that this is because he is still within the workplace; his role is still required to be performed; in the event he was to be dismissed, another person would need to be employed to perform his role; and in the event he was to be dismissed, the Applicant would suffer irreparable injury for which damages would not be adequate.
  1. [45]
    The Applicant further submits that the Respondents will not suffer prejudice from a grant of injunction of the nature requested.
  1. [46]
    I accept that the outcome of the disciplinary process may not be termination, as a decision has not yet been made about what, if any, disciplinary action may be taken against the Applicant. However, given that the show cause letter outlined that the Respondents were considering termination of the Applicant's employment, this is not entirely a speculative outcome.
  1. [47]
    The Respondents submit that the assertions that the Applicant's role would need to be undertaken by another person is incorrect as the Applicant's Service and Data Manager position is one of many that have been identified by the Second Respondent as no longer required as part of an organisational restructure across the health service.
  1. [48]
    I accept that the Respondents will be prejudiced by the uncertainty created by being unable to finalise the disciplinary process until the proceeding concludes. In circumstances where an interim injunction is granted, there is potential for the interim injunction to be in force for a considerable amount of time, extending beyond a year. This will undoubtedly have an impact on the ability of the Respondents to proceed with the proposed organisational restructure of the Applicant's and other's positions. I also note that the Applicant will have recourse to the reinstatement provisions of the IR Act in the event his employment is terminated.
  1. [49]
    In my view, the balance of convenience favours the Respondents.

Authorised by law

  1. [50]
    A further consideration in this matter is whether the disciplinary process, is authorised by law, pursuant to s 282(6) of the IR Act. In Pereira v State of Queensland (Department of Health, Queensland Ambulance service) & Anor,[18] Industrial Commissioner Pidgeon determined that if an action is undertaken for reasons proscribed by ss 282(1) or 295 of the IR Act, then the action is not 'authorised' within the meaning of s 282(6). In Queensland Nurses and Midwives' Union of employees v West Moreton Hospital and Health Service,[19] Industrial Commissioner Black considered that it is only in cases in which a legitimate finding is made that some form of disciplinary action can be taken, and if legitimate grounds do not exist, the section could not be construed to authorise the taking of adverse action.  
  1. [51]
    In Gilbert, Vice-President O'Connor held:

Section 282(6) of the IR Act provides that adverse action does not include action that is authorised under the IR Act or any other law of the State, or a law by the Commonwealth. 

The effect of s 282(6) of the IR Act is that even if the alleged conduct falls within the meaning of "adverse action" as defined in s 282(1), s 282(6) provides that such action is not adverse action if the action "is authorised under" the Act.[20]

  1. [52]
    Gilbert also considered a disciplinary process conducted pursuant to the PS Act, with Vice President O'Connor stating:

Section 187(1) of the PS Act empowers a chief executive (or a relevant person such as the Second Respondent) to discipline an employee. The Respondents were obliged to accord natural justice to the Applicant by providing an opportunity show cause why the disciplinary action should not be taken.[21]

 

Section 190 of the PS Act requires that when disciplining a public service employee, a Chief Executive (or his or her delegate) must comply with the Act and any relevant directive of the Commission Chief Executive and the principles of natural justice.[22]

If the Commission was to accept the reasoning of Flick J in Rio Tinto, s 282(6) of the IR Act ought to be construed as excluding from the definition of adverse action not only action which is 'expressly' authorised, by a law of the State, but also action which is 'sanctioned or approved by a provision' of a law of the State then it must be accepted that the taking of disciplinary action under the PS Act is a necessary anterior step that is "authorised".[23]

Section 187(1) of the PS Act empowers a chief executive (or a relevant person such as the Second Respondent) to discipline an employee. The Show Cause Notice commenced the disciplinary proceedings. The disciplinary proceedings were, in my view, expressly authorised by a law of the State or was an action which was sanctioned or approved by a provision of a law of the State.[24]              

It must follow that the Show Cause Notice was issued exercising the power in s 187 of the PS Act and was therefore "authorised" pursuant to s 282(6) of the IR Act.[25]

  1. [53]
    The Applicant submits that s 187 of the PS Act does not provide the source of power for the Respondents to pursue disciplinary action, but only acts as a mere guide. As noted above in Gilbert, s 190 of the PS Act requires that when disciplining a public service employee, the Chief Executive (or his or her delegate) must comply with the PS Act, indicating that s 187 does not operate as a guide but, rather, a necessary step in the taking of disciplinary action.
  1. [54]
    The Applicant submits that the Respondents did not have legitimate grounds to make a finding that a ground for discipline exists, and the reasons for the disciplinary process undertaken were nefarious. The Applicant asserts that the staff around his estranged partner formed negative impressions of him following her profession of untruths, disparaging statements and alleged domestic violence. The Applicant asserts that by virtue of the biased nature of Ms Brook, Ms Mockler and Mr Bekkeli, the statements of whom were pivotal to the commencement of the disciplinary process, the grounds for pursuing the disciplinary process were tainted and nefarious and therefore incapable of being authorised within the meaning of the PS Act. If this is indeed the case, there were a number of other avenues through which the Applicant could exercise his rights such as through grievance procedures and fair treatment appeals pursuant to the PS Act.
  1. [55]
    The Applicant also has the ability to have his allegations of bias presented in his response to the show cause letter and depending on the nature of disciplinary penalty, have the allegations of bias heard through a disciplinary appeal pursuant to the PS Act or an unfair dismissal application pursuant to the IR Act. There is insufficient evidence before me at this point to conclude that the disciplinary process was not commenced for a legitimate purpose and in any event, applying the principles in Gilbert, the issuing of the show cause notices were actions authorised by law.
  1. [56]
    I have preferred the reasoning in Gilbert over the previous authorities as it is the most recent consideration of these issues. In applying that reasoning to this matter, the actions of the Respondents in commencing the disciplinary process by issuing the show cause notices to the Applicant were authorised by law pursuant to s 282(6) of the IR Act and that such action is not adverse action.

Order

  1. [57]
    For the reasons outlined above, the Applicant's application for an interim injunction is dismissed.
  1. [58]
    I make the following order:

The Applicant's application for an interim injunction is dismissed.

Footnotes

[1] The First and Second Respondent will collectively be referred to as 'the Respondents'.

[2] [2020] QIRC 184 ('Morgan').

[3] Ibid [19]-[20].

[4] [2016] ICQ 20.

[5] Ibid [19].

[6] [2011] QIRC 70.

[7] Ibid [5].

[8] Morgan (n 2) [21].

[9] The Applicant's application, submissions, statement of facts and contentions and affidavit.

[10] [2018] ICQ 006.

[11] Ibid [46].

[12] (2010) 186 FCR 22.

[13] [2019] QIRC 132.

[14] [2021] QIRC 255 ('Gilbert').

[15] [2008] FCA 467.

[16] Gilbert (n 14) [214].

[17] [2013] FCA 525.

[18] [2019] QIRC 136.

[19] [2020] QIRC 049.

[20] Gilbert (n 14) [210]-[211].

[21] Ibid [220].

[22] Ibid [226].

[23] Ibid [240].

[24] Ibid [241].

[25] Ibid [242].

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Health) & Anor

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Health) & Anor

  • MNC:

    [2021] QIRC 340

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    01 Oct 2021

Appeal Status

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

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