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Dawson v State of Queensland (Department of the Premier and Cabinet)[2021] QIRC 342

Dawson v State of Queensland (Department of the Premier and Cabinet)[2021] QIRC 342

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dawson v State of Queensland (Department of the Premier and Cabinet) [2021] QIRC 342

PARTIES: 

Dawson, Travis

(Applicant)

v

State of Queensland (Department of the Premier and Cabinet) 

(Respondent)

CASE NO:

PID/2021/1

PROCEEDING:

Application to dismiss 

DELIVERED ON:

5 October 2021

HEARING DATE:

29 July 2021

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDER:

  1. The substantive Application in PID/2021/1 is dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld); and
  1. I will hear the parties in respect of the question of costs.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – where application filed to strike out or dismiss substantive matter pursuant to s 451 or s 541 of the Industrial Relations Act 2016 (Qld) – where applicant sought an injunction pursuant to s 48 of the Public Interest Disclosure Act 2010 (Qld) – whether commission has jurisdiction to make the orders sought by the applicant – whether further proceedings by the commission are not necessary or desirable in the public interest – where applicant has not identified a breach of the Industrial Relations Act 2016 (Qld) – where applicant has made no application pursuant to chapter 8, part 1, division 8 of the Industrial Relations Act 2016 (Qld) for the commission to deal with a dispute about a dismissal – substantive application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 283, s 285, s 313, s 314, s 451, s 541

Public Interest Disclosure Act 2010 (Qld), s 48, s 51, s 52

Ministerial and Other Office Holder Staff Act 2010 (Qld), s 16, s 17, s 22

CASES:

Andrew Davis and Chief Executive Officer, Department of Community Safety – Queensland Fire and Rescue Services [2013] QIRComm 229

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] QIC 30; (2006) 182 QGIG 152

Kelsey v Logan City Council & Ors (No. 8) [2021] QIRC 114

Naidoo v George [2016] QIRC 80

State of Queensland v Lockhart [2014] ICQ 006

APPEARANCES:

Mr A. Duffy QC with Mr E. Shorten of Counsel, instructed by Crown Law, for the Applicant.

Mr T. Dawson, the Respondent in person.

Reasons for Decision

  1. [1]
    The State of Queensland (Department of the Premier and Cabinet) ('the State') filed an application in existing proceedings in the Queensland Industrial Relations Commission ('the Commission') on 12 April 2021, seeking that the substantive application filed by Travis Dawson ('the Applicant') in PID/2021/1 be struck out or dismissed in its entirety.
  1. [2]
    The State seeks the following orders from this application:
  1. (a)
    An order pursuant to s 451(2) of the Industrial Relations Act 2016 Qld ('the IR Act') striking out or dismissing the Applicant's application in its entirety on the basis that the Commission does not have jurisdiction to make the orders sought in the Applicant's application; or, alternatively to (a);
  1. (b)
    An order pursuant to s 541(b)(ii) of the IR Act striking out or dismissing the Applicant's application in its entirety on the basis that further proceedings by the Commission are not necessary or desirable in the public interest; and
  1. (c)
    All questions of costs of and incidental to the proceedings be reserved; and
  1. (d)
    Any other order that the Commission deems appropriate.
  1. [3]
    The State makes its application on the following grounds:
  1. (a)
    The Applicant's application, insofar as it seeks relief pursuant to ss 48, 51 and 52 of the Public Interest Disclosure Act 2010 (Qld) ('the PID Act'), is made without jurisdiction as it identifies no breach of the IR Act or an industrial instrument under that Act for the purposes of s 48(1)(b) of the PID Act; and
  1. (b)
    The Applicant's application, insofar as it seeks relief pursuant to s 314 of the IR Act, is made without jurisdiction as it is not an application mentioned in s 313 of the IR Act and the Applicant has made no application at all pursuant to Chapter 8, Part 1, Division 8 of the IR Act.
  1. [4]
    The Applicant opposes this application.

Background

  1. [5]
    As the Applicant in the substantive proceedings, Mr Dawson seeks an injunction pursuant to s 48 of the Public Interest Disclosure Act 2010 (Qld) ('PID Act'). The Applicant further seeks various forms of relief, including reinstatement, pursuant to s 314 of the Industrial Relations Act 2016 (Qld) ('IR Act').
  1. [6]
    In the Amended Application filed by the Applicant in the Industrial Registry on 7 April 2021 he seeks the following orders:

An order for an injunction under section 48 of the Public Interest Disclosure Act 2010(PID Act)

An order under s55 of the PID Act that restricts of publication of details regarding the application.

An Order pursuant to section 314(1)(a) of the Industrial Relations Act (IR) and sections 51 and 52 of the PID Act that DPC take steps to prevent further retaliation. As well as an order than (sic) any individual within the respondent's organisation to not be involved in any matter relating to this applicant's employment going forward.

An order pursuant to section 314 (i) (a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be re-instated as a Senior Policy Advisor effective from April 2018.

An order under section 51 of the PID Act and 314 of the IR Act that none of the respondents consider any matter relating to my employment until the completion of my current contract. With the respondent able able (sic) to apply to vary this order on reasonable grounds.

An order pursuant to 314 of the IR Act that the respondents pay damages caused by the respondents.

An order pursuant to 314 of the IR Act that the respondent's pay aggravated damages as a result of its conduct in this matter.

An order pursuant to the Section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that lost salary and superannuation be paid as a result of the termination in April 2018.

An order pursuant to section 314 (1)(a) of the IR Act and sections 51 and 52 of the PID Act to maintain the Applicant's continuous service with the respondent.

Such further orders as the Commission sees fit.

Statutory Framework

  1. [7]
    The State relies on s 451 of the IR Act to make this application. This section provides the following:

451  General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  2. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.

  1. [8]
    The State further refers to s 541 of the IR Act which states:

541 Decisions generally

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

  1. (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;
  2. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
    1. the cause is trivial; or
    2. further proceedings by the court or commission are not necessary or desirable in the public interest;
  3. (c)
    order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
  1. [9]
    In respect of the substantive matter, s 48(1) of the PID Act relevantly provides:

48  Right to apply to industrial commission

  1. (1)
    An application for an injunction about a reprisal may be made to the industrial commission if the reprisal—
  1. (a)
    has caused or may cause detriment to an employee; and
  2. (b)
    involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act.

  1. [10]
    Further, s 314(1) of the IR Act provides as follows:

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.

Application

  1. [11]
    The State applies for an order pursuant to s 451(2) or s 541(b)(ii) of the IR Act to dismiss the Applicant's substantive application because:
  1. (a)
    It is made without jurisdiction;
  1. (b)
    It cannot succeed on any view of the facts or the law; and
  1. (c)
    Further proceedings are not necessary or desirable in the public interest.
  1. [12]
    The State submits that s 451(2) of the IR Act confers on the Commission the power to dismiss an application where the Commission considers that the application is one which might not succeed on any view of the facts or law.[1]
  1. [13]
    The Applicant's application is an industrial cause within the meaning of the IR Act.[2]
  1. [14]
    Section 541(b)(ii) of the IR Act grants the power to dismiss the cause, or refrain from hearing or deciding the cause, if the Commission considers further proceedings by the Commission are not necessary or desirable in the public interest.
  1. [15]
    The State submits that the expression 'in the public interest' imports a discretionary value judgement to be made by reference to the facts, confined only by the objects of the legislation in question.[3]
  1. [16]
    It is further submitted that the process for consideration of an application under s 541 of the IR Act does not require that the respondent's case be taken at its highest. In support of that submission reference was made to the decision of Martin J in Campbell v State of Queensland (Department of Justice and Attorney-General)[4] where his Honour said:

[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.

[29]  As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case. (citations omitted).[5]

  1. [17]
    Relying on the above, the State submits that while the power in s 541 is to be exercised with due circumspection on a proper consideration of relevant materials, the value judgement incorporated in s 541(b)(ii) is a broad one.[6]
  1. [18]
    Looking to the nature of the Applicant's claim, the State sets out the following reasons as to why the Applicant cannot establish the necessary facts or state of affairs grounding jurisdiction in the present case.

Failure to identify a breach of the IR Act

  1. [19]
    The State submits that both limbs under s 48(1)(a) and (b) of the PID Act must be satisfied to establish jurisdiction for a claim to injunctive relief.[7]   In essence, if the alleged reprisal does not involve a breach of the IR Act, the Commission does not have jurisdiction to grant an injunction under s 48 of the PID Act.
  1. [20]
    It is raised by the State that the Applicant's substantive application does not allege that any reprisal involved a breach of the IR Act or an industrial instrument under it.
  1. [21]
    The Applicant filed a further affidavit in the Commission on 20 April 2021 in response to the State's application, which relevantly provided the following:
  1. The Public Interest Disclosure Act 2010 (PID Act) is an industrial law for the purposes of the Industrial Relations Act 2016 (IR Act)
  1. I took part in a proceeding under this industrial law consistent with s 283(i) of the IR Act by making a public interest disclosure.
  1. Adverse action was, and I suggest will continue to be, taken against me consistent with the definition in s 285 of the IR Act
  1. A reprisal under the PID Act is adverse action under the IR Act.

  1. s 48 of the PID Act only requires that there may have been damage and a breach of industrial law.
  2. My application clearly outlines potential sources of damage and breach of industrial law.  
  1. [22]
    The State argues this line of argument to be misconceived for the following reasons: 
  1. (a)
    First, The PID Act is not an 'industrial law' for the purposes of the IR Act;
  1. (b)
    Second, the Applicant did not take part in a 'proceeding under this industrial law consistent with section 283(i) of the IR Act by making a public interest disclosure';
  1. (c)
    Third, no proper 'workplace right' or breach of s 285 is identified;
  1. (d)
    Fourth, it is not correct that a 'reprisal under the PID Act is adverse action under the IR Act', and the Applicant identifies no other adverse action; and
  1. (e)
    Fifth, the Applicant misstates what s 48 of the PID Act requires.
  1. [23]
    The term 'industrial law' is defined in Schedule 5 of the IR Act:

industrial law means—

  1. (a)
    this Act; or
  1. (b)
    another Act regulating the relationships between employers and employees.
  1. [24]
    The State submits that the PID Act is not an act 'regulating the relationships between employers and employees' and refers to its main objectives which state:

3 Main objects of Act

The main objects of this Act are—

  1. (a)
    to promote the public interest by facilitating public interest disclosures of wrongdoing in the public sector; and
  2. (b)
    to ensure that public interest disclosures are properly assessed and, when appropriate, properly investigated and dealt with; and
  3. (c)
    to ensure that appropriate consideration is given to the interests of persons who are the subject of a public interest disclosure; and
  4. (d)
    to afford protection from reprisals to persons making public interest disclosures.
  1. [25]
    The State further refers to the observations of this Commission in Kelsey v Logan City Council & Ors (No. 8) [2021] QIRC 114, which provided, inter alia: 

[35]  … However, the PID and CC Act are not industrial laws for the purposes of the IR Act. Whilst each piece of legislation imposes obligations upon either an employee or an employer, neither Act seeks to regulate the relationship between employees and employers.

[39] Contrary to the Applicant's submissions, the question is not whether the statute as a whole can be described as an "industrial law", but rather whether the specific provision being relied upon can be characterised in that way.

[50]  Section 48(1)(a) of the PID Act gives the Applicant the capacity to apply to the Commission for an injunction about a reprisal if the reprisal has caused or may cause detriment to an employee. It does not seek to regulate the relationship between an employer and an employee. All that is necessary is that the person who is suffering a detriment by virtue of the reprisal be an employee and that there may be a contravention of the IR Act.

[51]  The First Respondent argues that if the PID Act is not an "industrial law" as defined, then the making of a PID cannot amount to the exercise of a workplace right as asserted, as such activity cannot be the commencement of, or participation in, a process under an industrial law.

[52]  The First Respondent submits that the standing of the PID Act as an "industrial law" is not directly pleaded. Rather the Applicant's further amended application alleges the workplace rights relied upon in accordance with the definition in s 284(1)(b) of the IR Act was (in part) the ability to start or participate in a process or proceeding under the PID Act. In addition, the Applicant's submissions suggest the exercise of a workplace right for the purposes of these proceedings by making various complaints. Part of the correspondence has been characterised as a PID under the PID Act.

[53]  As submitted in the First Respondent's written submissions, ss 13 and 17 of the PID Act do not, and do not purport in any way to, regulate the employment relationship between the Applicant and the First Respondent.

[54]  There is nothing within the Objectives of the PID Act or in ss 13 or 17 which suggests that the conferral of entitlements and obligations is referrable to the regulation of employment. By designating a public officer as being a person who has a right to act against any other person pursuant to ss 13 and 17 of the PID Act cannot constitute those sections as being an "industrial law" as defined, nor can action taken in reliance upon those sections properly be construed as being a role or responsibility, or the commencement of a proceeding, under an "industrial law".

[55]  In order for a law to answer the description as an industrial law, it must have as its object the regulation of the relationship between employers and employees. That focuses attention on the purpose of the regulation contained within the relevant statute.

[58]  The First Respondent submits that this is an insufficient connection. The fact that legislation of this kind may contain paticular remedies that will be available, under limited circumstances, for disclosers who happen to be employees, does not change the character of the provisions under which the initial disclosure was made.

[59]  In ALAEA, Logan J rejected a submission that in order for an Act to fall within the definition, the entire Act had to be a law which regulated the relationship between employers and employees.

[60]  This approach is consistent with the Full Court's conclusion in Tattsbet v Morrow.  It is not necessary for the entire PID Act to be described as an industrial law. It is only necessary that the sections under which the Applicant made the alleged PID, being ss 13 and 17 of the PID Act, be industrial laws.

[61]  There is no basis to construe ss 13 and 17 of the PID Act as laws which have the purpose of regulating the relationship between employers and employees. The purpose of those provisions is to facilitate the ability of persons (regardless of whether they are employees) to report concerns about corruption and not in any way to regulate the employment relationship. (citations omitted)

  1. [26]
    For the reasons outlined above, the State submits that the Applicant's substantive application is made without jurisdiction because no breach of the IR Act has been identified in the material filed.  Accordingly, the Commission is not empowered to grant the relief sought by the Applicant pursuant to ss 48, 51 and 52 of the PID Act.

Section 314 of the IR Act not engaged

  1. [27]
    The State additionally argues that there is a further jurisdictional barrier as the Applicant has sought relief pursuant to s 314 of the IR Act, however this section is only relevant and applicable where:
  1. (a)
    An application is made for the Commission to deal with a dispute pursuant to s 309 of the IR Act; and
  1. (b)
    The Commission has held a conference to attempt to settle the application by conciliation and, if satisfied that all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful, has issued a written certificate to that effect pursuant s 312 of the IR Act; and
  1. (c)
    The Commission has heard and decided the application pursuant to s 313 of the IR Act.  
  1. [28]
    The Applicant has made no application pursuant to Chapter 8, Part 1, Division 8 of the IR Act for the Commission to deal with a dispute about a dismissal.  The State also claims it is evident from the affidavit material filed by the Applicant that there has been no dismissal nor any other identified contravention about which this application could be properly made. 

Applicant's position

  1. [29]
    The Applicant filed his final submissions in the Industrial Registry on 3 June 2021.  It is difficult to discern where the submissions respond directly to the points made by the State in its application to dismiss.
  1. [30]
    The Applicant's submissions are hard to navigate through and equally hard to identify with any degree of clarity their true import. But what appears to be asserted is that the standing of his substantive application is not affected by whether or not a breach of an industrial law in relation to the PID Act can be established.
  1. [31]
    The Applicant submits that the decision of Kelsey v Logan City Council & Ors (No. 8)[8] indicates there is scope for certain legislation, policies and procedures to be considered industrial laws depending on the circumstances.
  1. [32]
    The Applicant argues that ss 16 and 17 of the Ministerial and Other Office Holder Staff Act 2010 (Qld) ('the MOPS Act'), the 'standard ministerial staff contract' and the Code of Conduct for Ministerial Staff Members are all industrial laws within the meaning of the term in the IR Act.
  1. [33]
    However, in response, the State restates its argument that 'unless the alleged reprisal involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act, this Commission lacks jurisdiction to grant an injunction under s 48 of the Public Interest Disclosure Act 2010'.[9]
  1. [34]
    The State observes that the Applicant appears to have wrongly conflated two different concepts: an 'industrial law' and 'the Industrial Relations Act 2016 or an industrial instrument under that Act'.
  1. [35]
    The Applicant refers to s 22 of the MOPS Act which provides:

22  Compliance with codes

  1. (1)
    A staff member must comply with an approved code of conduct that applies to the staff member.
  2. (2)
    Contravention of an approved code of conduct by a staff member may give rise to disciplinary action under the staff member’s contract of employment.
  1. [36]
    The Applicant states that the Department of the Premier and Cabinet's approved code of conduct for ministerial staff is the Code of Conduct for Ministerial Staff Members.  The Code provides the following:

Should I report a breach of the Code?

Yes. If you become aware of or suspect a ministerial staff member has breached the Code, you must report the matter. This includes any complaint against another ministerial staff member that you may have received from any person inside or outside the Ministerial Office. You will not suffer discrimination for reporting suspected misconduct.

Similarly, you have an obligation to report to your Chief of Staff or any other appropriate senior staff member, any conduct by yourself that breaches the standards contained in the Code.

The Public Interest Disclosure Act 2010 (PID Act) offers some protection for ministerial staff members who make public interest disclosures, from reprisal. The PID Act imposes penalties on anyone who takes detrimental action against a person making a public interest disclosure.

  1. [37]
    The Applicant submits it was confirmed in 2017 by the Crime and Corruption Commission that Mr David Barbagallo (the subject of the Applicant's disclosure) had breached the Code by not disclosing or managing his pecuniary interests.  The Applicant states this breach was confirmed as grounds for dismissal which amounts to official misconduct for the purposes of a public interest disclosure. 
  1. [38]
    It is unclear if the Applicant is seeking to reagitate his previous argument that he '…took part in a proceeding under this industrial law consistent with section 283 (i) of the IR Act by making a public interest disclosure' and, in response, the Respondent took 'adverse action' against him.[10]
  1. [39]
    Further, the State infers the Applicant's argument is that because the Code makes reference to the PID Act, he engaged in a 'process or proceeding' under the Code (which he says is an 'industrial law') rather than the PID Act (which is not an 'industrial law').
  1. [40]
    Irrespective, the State submits that whether this is the argument being advanced by the Applicant, it cannot succeed because:
  1. (a)
    The Code sets out 'Principles and Values' and 'Required standards of conduct'. It does not establish any 'process or proceedings' that could be taken under it;
  1. (b)
    Indeed, the Code provides expressly by its words that breaches of it '…may be addressed under the provisions of your employment contract'. Section 22(2) of the MOPS Act provides to like effect; and
  1. (c)
    Any 'process or proceedings' under the employment contract in respect of a breach of the Code would of course not be a 'process or proceedings under an industrial law'. An employment contract is not an 'Act'.

(citations omitted)[11]

  1. [41]
    On the State's argument, it is not sufficient for the Applicant to identify a breach of an 'industrial law'.  In order to ground jurisdiction, the Applicant must satisfy the Commission that any reprisal involves or may involve a breach of 'the Industrial Relations Act 2016 or an industrial instrument under that Act'.
  1. [42]
    In response to the submission of the State that the Applicant has not alleged any retaliatory behaviour, the Applicant stated they were requested to take recreational leave or unpaid leave to travel to Townsville or Cairns for the purposes of working on the ALP campaign as a volunteer.  The Applicant explains they found the request to be inappropriate but were nevertheless hesitant to refuse the request due to fears they would be terminated after the election.   To this end, the Applicant states:

I doubt I was the only staff member whom this in appropriate [sic] request was made of and I doubt that any of these staff were retaliated against for either agreeing or refusing to this inappropriate request.[12]

  1. [43]
    The State submits that the Applicant's statement does not paint a picture of retaliation directed at the Applicant but rather a complaint about conduct that was allegedly not limited to him.[13]
  1. [44]
    During oral submissions, when asked to elaborate on his claim of adverse action, the Applicant said the following:

I think my contract was not renewed in April 2018. I think that when I was re-appointed in 2020 to a lesser role that I continued to suffer retaliation from individuals. I think that in 2020 – December 2020 there was another attempt to not renew my contract because, either, I had made a public interest disclosure in April 2018, or I had made public interest disclosures in 2020 as well.

I mean, the important thing about the Ministerial and Other Office Holders Act is there’s actually only two people that make decisions in it: there’s the Premier or their delegate, or the Director-General of DPC or their delegate. I think the delegate was the same in 2018 and 2020. And so that means that if the delegate was making decisions to disadvantage me in 2020, and they were also the person who made decisions to disadvantage me in 2018 then I definitely think that the Commission could reach back to 2018 and say that but for the actions of that individual which they took for a prohibited reason, that I would still be a senior policy advisor in the Queensland Government from April 2018 to today.[14]

Disposition

  1. [45]
    The State applies for an order pursuant to s 451(2) or s 541(b)(ii) of the IR Act to dismiss the Applicant's substantive application because:
  1. (d)
    It is made without jurisdiction;
  1. (e)
    It cannot succeed on any view of the facts or the law; and
  1. (f)
    Further proceedings are not necessary or desirable in the public interest.
  1. [46]
    The State makes its application on the following grounds:
  1. (a)
    The Applicant's application, insofar as it seeks relief pursuant to ss 48, 51 and 52 of the Public Interest Disclosure Act 2010 (Qld) ('the PID Act'), is made without jurisdiction as it identifies no breach of the IR Act or an industrial instrument under that Act for the purposes of s 48(1)(b) of the PID Act; and
  1. (b)
    The Applicant's application, insofar as it seeks relief pursuant to s 314 of the IR Act, is made without jurisdiction as it is not an application mentioned in s 313 of the IR Act and the Applicant has made no application at all pursuant to Chapter 8, Part 1, Division 8 of the IR Act.
  1. [47]
    I accept the argument advanced by the State that the Applicant has failed to identify any breach of the IR Act or an industrial instrument under that Act, as required under s 48(1)(b) of the PID Act. I also accept the argument that s 314 of IR Act, under which the Applicant seeks relief, is not engaged.
  1. [48]
    The State submits that both limbs under s 48(1)(a) and (b) of the PID Act must be satisfied to establish jurisdiction for a claim to injunctive relief.[15]  In short, if the alleged reprisal does not involve a breach of the IR Act, the Commission does not have jurisdiction to grant an injunction under s 48 of the PID Act.
  1. [49]
    Equally, the Applicant has made no application pursuant to Chapter 8, Part 1, Division 8 of the IR Act for the Commission to deal with a dispute about a dismissal.  The affidavit material before the Commission filed by the Applicant does not disclose that the Applicant was dismissed nor any other identified contravention about which such an application could be properly made. 
  1. [50]
    In considering this matter, I am mindful of the fact that the Applicant is unrepresented, and it is unfortunate that in the conduct of these proceedings he has not had the benefit of independent legal advice. Nevertheless, the Applicant is still required to demonstrate that he has an arguable case. He has failed to do so.
  1. [51]
    The matter ought to be struck out. In taking that view, I accept that the PID Act is not an 'industrial law' for the purposes of the IR Act; that the Applicant did not take part in a 'proceeding under this industrial law consistent with section 283(i) of the IR Act by making a public interest disclosure'; the Applicant has not identified a 'workplace right' or breach of s 285 of the IR Act; and the Applicant has not identified any other adverse action. As noted above, no application has been made pursuant to Chapter 8, Part 1, Division 8 of the IR Act. It follows therefore that s 314 of the IR Act is not engaged. The Applicant has failed to articulate in any meaningful way how the relief he seeks can be granted.

Orders

  1. [52]
    The following orders are made:
  1. The substantive Application in PID/2021/1 is dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld); and
  1. I will hear the parties in respect of the question of costs.

Footnotes

[1] Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] QIC 30; (2006) 182 QGIG 152, 153; Naidoo v George [2016] QIRC 80, [76].

[2] Public Interest Disclosure Act 2010, s 48(5).

[3] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24], applying State of Queensland v Lockhart [2014] ICQ 006.

[4] [2019] ICQ 18.

[5] [2019] ICQ 18, [28] – [29].

[6] Ibid [7] – [8].

[7] Andrew Davis and Chief Executive Officer, Department of Community Safety – Queensland Fire and Rescue Services [2013] QIRComm 229, [25]-[26].

[8] [2021] QIRC 114.

[9] Respondent's Submissions in Reply dated 18 June 2021, [8].

[10] Applicant's affidavit filed 20 April 2021, [5]-[6].

[11] Respondent's Submissions in Reply dated 18 June 2021, [13].

[12] Applicant's affidavit filed 3 June 2021, [31].

[13] Respondent's Submissions in Reply dated 18 June 2021, [24].

[14] TR1-11, LL23-36.

[15] Andrew Davis and Chief Executive Officer, Department of Community Safety – Queensland Fire and Rescue Services [2013] QIRComm 229, [25]-[26].

Close

Editorial Notes

  • Published Case Name:

    Dawson v State of Queensland (Department of the Premier and Cabinet)

  • Shortened Case Name:

    Dawson v State of Queensland (Department of the Premier and Cabinet)

  • MNC:

    [2021] QIRC 342

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    05 Oct 2021

Appeal Status

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