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- Tapfield v Ipswich City Council[2021] QIRC 69
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Tapfield v Ipswich City Council[2021] QIRC 69
Tapfield v Ipswich City Council[2021] QIRC 69
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Tapfield v Ipswich City Council [2021] QIRC 069 | |
PARTIES: | Tapfield, Kenneth Vincent (Appellant) v Ipswich City Council (Respondent) | |
CASE NO: | GP/2019/27 | |
PROCEEDING: | General Protections – Application to dismiss proceedings | |
DELIVERED ON: | 3 March 2021 | |
MEMBER | Hartigan IC | |
HEARD AT: | 28 April 2020 | |
ORDERS: |
| |
CATCHWORDS: | INDUSTRIAL LAW – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – applicant alleges that he was subject to adverse action – whether complaint or inquiry "in relation to" applicant's employment – application seeking summary dismissal of proceedings – whether further proceeding is necessary or desirable in the public interest | |
LEGISLATION: | Fair Work Act 2009 (Cth), s 341 Industrial Relations Act 2016 (Qld), s 282, s 284, s 285, s 541 Local Government Act 2009 (Qld) Local Government Regulation 2012 (Qld) | |
CASES: | Bartlett v Signostics Ltd (In liq) (No. 2) [2019] FCCA 3506 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Hospitals Contributions Fund of Australia v Hunt (1982) 44 ALR 365 In National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 Re Queensland Electricity Commission & Ors; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 Re MEAA; ex parte Hoyts Corporation Pty Ltd (1993) 112 ALR 193 |
Reasons for Decision
Introduction
- [1]The Ipswich City Council ("the Council") applies to the Queensland Industrial Relations Commission ("the Commission") for orders seeking that Mr Tapfield's application to deal with a general protection dispute be summarily dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 ("the IR Act") for want of jurisdiction.
- [2]Mr Tapfield commenced proceedings[1] in the Commission alleging that the termination of his employment was an act of adverse action and thereby a contravention of s 285(1)(a)(ii) of the IR Act by the Council, his former employer ("the adverse action proceedings").
- [3]The basis for the Council's application for summary dismissal is that it contends that none of the complaints or inquiries relied upon by Mr Tapfield in relation to the adverse action proceedings, constitute the exercise of a "workplace right" by him on the basis that none of those complaints or inquiries are "in relation to" Mr Tapfield's employment. The Council argues, accordingly, that those complaints or inquires do not fall within the definition of workplace right pursuant to s 284(1)(c)(ii) of the IR Act.
- [4]In its submission, the Council identifies that the issue for the Commission's determination is whether a complaint or inquiry, made by an employee, concerning one or more workplace investigations being undertaken by an independent service provider to the relevant employer, is capable of constituting a complaint or inquiry in relation to the employee's employment, in circumstances where the said investigations pertained entirely to the conduct of other employees or the employer, and did not concern, or have as their subject matter, the said employee, or any alleged conduct by the said employee.
- [5]Mr Tapfield's position is that because his former role encompassed a degree of responsibility for advising the Respondent in relation to "matters within the scope of the people and culture branch including employee relations" means that the complaints and the inquiries made by him concerning the independent investigation were "in relation to" his employment. In addition to the complaints and inquiries referred to in Mr Tapfield's application and following the filing of the application to dismiss, Mr Tapfield particularises further complaints which he contends also amounts to the Council taking adverse action against him in contravention of s 285(1) of the IR Act.
- [6]The issue that I have to determine in hearing this application is whether I should dismiss Mr Tapfield's adverse action proceeding because further proceedings are not necessary or desirable in the public interest.
Application to summarily dismiss
- [7]Section 541(b)(ii) of the IR Act relevantly provides as follows:
541 Decisions generally
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.
- [8]Section 541 of the IR Act (and its predecessor, s 331 of the IR Act) were considered by the Industrial Court of Queensland in Campbell v State of Queensland (Department of Justice and Attorney-General).[2] In that decision, a number of authorities where the expression in the "public interest" was used were considered as follows:
[24] Consideration given to s 331 in earlier decisions can inform the resolution of this ground of appeal. In State of Queensland v Lockhart,[3] Deputy President O'Connor summarised the meaning of “public interest” in relation to the exercise of discretion under s 331 in the following terms:
"[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression ‘in the public interest’. Their Honours wrote:
'Indeed, the expression, ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.'
[22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes ‘the public interest’ wrote:
'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made [sic] by reference to undefined factual matters, confined only by the objects of the legislation in question.
Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.'
- [9]Further his Honour considered[4] the circumstances in which the exercise of the discretion under s 541 of the IR Act would be exercised as follows:
[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.[5]
[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.[6] A “proper consideration” cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an 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.
[30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission.
…
- [10]Accordingly, I will consider the legislative basis of the claim made in the adverse action proceedings and the material, as it presently stands, before the Commission.
Relevant legislative provisions
- [11]Section 285(1)(a) of the IR Act prohibits a person taking adverse action against another because the person either:
- (i)has a workplace right; or
- (ii)has, or has not, exercised a workplace right; or
- (iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right;
- [12]Relevantly, s 282(1) provides the meaning of adverse action to include action 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.
- [13]There is no dispute in this matter that Mr Tapfield was dismissed by the Council and consequently was subject to adverse action.
- [14]Section 284 of the IR Act provides the meaning of workplace right in the following terms:
284 Meaning of a workplace right
- (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.
- [15]In this application, the Council contends that Mr Tapfield has not exercised a workplace right within the meaning of s 284(1)(c)(ii) of the IR Act. Accordingly, the Council argues that the adverse action could not have been taken because Mr Tapfield exercised a workplace right.
- [16]The parties have also referred to a number of authorities which refer to s 341 of the Fair Work Act 2009 (Cth) ("the FW Act"). Section 341 of the FW Act is in the following terms:
341 Meaning of a workplace right
Meaning of workplace right
- (1)A person has a workplace right if the person:
- (i)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
- (ii)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
- (iii)is able to make a complaint or inquiry:
- (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
- (ii)if the person is an employee—in relation to his or her employment.
…
- [17]Section 341(1)(c) of the FW Act is in similar terms to s 284(1)(c) of the IR Act.
Principles relevant to whether a complaint or inquiry was made "in relation to" Mr Tapfield's employment.
- [18]In National Tertiary Education Industry Union v University of Sydney[7], Thawley J considered the phrase "in relation to" in the context of s 341(1)(c)(ii) of the FW Act and reviewed and analysed several authorities as follows:
[191] … As to the meaning of “in relation to” in s 341(1)(c)(ii), and in the context of explaining why he considered Shea at [29(f)] and [625] (and PIA Mortgage Services) to be wrongly decided, Bromberg J stated in Cummins:
[39] As I said in Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], the words “in relation to” are words of wide import. It is the nature and purpose of s 341(1)(c) which informs the relationship or the requisite nexus between the “complaint” and the “employment” for which the words “in relation to” provide: see Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [63]-[64] (Katzmann J); Walsh at [41] and Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [68]-[69] (Mortimer J).
[40] Within the limit there identified for the phrase “in relation to”, complaints or inquiries in relation to an employee’s employment cover a broad field. On the plain language of s 341(1)(c)(ii), “in relation to his or her employment” is a far broader field than the available field if the provision had said “about his or her rights or entitlements” in the employment. The adoption of the view that for a complaint or an inquiry to fall within the scope of s 341(1)(c)(ii) it must be concerned with a right or entitlement of the employee would essentially re-write the subject matter of a complaint or inquiry to which s 341(1)(c)(ii) plainly refers.
…
[44] True it is that “in relation to his or her employment” gives rise to a wide field of potential dissatisfactions that may fall within the scope of the protection provided for by the scheme in question. However, to my mind, that has been deliberately provided for in recognition of the fact that dissatisfaction in respect of a wide range of matters relating to employment may actuate the behaviour that the FW Act seeks to prohibit. There is neither a purposive nor a rational basis for confining that protective field to complaints or inquiries about an extant right or entitlement of the employee.
…
[47] The correctness of that conclusion is supported by the Explanatory Memorandum, which states at [1370] that subpara 341(1)(c)(ii) of the Fair Work Bill 2008 (emphasis added) “specifically protects an employee who makes any inquiry or complaint in relation to his or her employment”, and that it would “include situations where an employee makes an inquiry or complaint to his or her employer”. This suggests that the legislature intended that the only limitation on the protection of complaints and inquiries would be that the subject matter of the complaint or inquiry be “in relation to [the employee’s] employment”.
- [19]As can be seen from the passage above, the law in respect to what is meant by the phrase "in relation to the employment" as it appears in s 341(1)(c) of the FW Act is evolving. Each of the parties refer to a body of authorities in support of their respective arguments as to whether the complaints or inquires made were in relation to Mr Tapfield's employment. Before considering the parties submissions I will identify the complaints and inquires relied on by Mr Tapfield below.
The complaints or inquires relied on by Mr Tapfield
- [20]In the affidavit filed by Mr Tapfield in support of the adverse action proceeding[8] Mr Tapfield identifies the following complaints and inquiries made by him which he contends amounted to the exercise of a workplace right.
29 March 2019
- [21]On or about 29 March 2019[9], Mr Tapfield made an inquiry regarding Mr Graham Newton, partner at McGrath Nicol, regarding a workplace investigation that Mr Newton's organisation had undertaken in relation to two council employees. Mr Tapfield deposes that[10] as a consequence of Mr Tafield's concern that Mr Newton's organisations report should include a number of matters including but not limited to:
- (a)what methods were used during the investigation (including natural justice requirements);
- (b)what standard of proof was applied; and
- (c)given the seriousness of the allegations, what principles were applied in respect of ensuring the necessary standard of evidence was sufficient to support the factual findings made.
- [22]Mr Tapfield further deposes that[11] these inquiries were made to, inter alia, ensure that he had discharged his obligations as the manager, People and Culture, by providing specialist advice to the respondent and its officers on matters within the scope of the People and Culture branch, including employee relations.
15 August 2019
- [23]Mr Tapfield deposes[12] that on or around 13 August 2019, Mr Tapfield attended a meeting where matters were discussed with him regarding an investigation in relation to an employee of the respondent.
- [24]Mr Tapfield states that, along with other staff of the respondent, he had concerns regarding an investigation report finalised by McGrath Nicol.
- [25]Mr Tapfield deposes to an email being sent by Ms Webbe to Mr Tapfield, Mr Farmer and others on 15 August 2019 in the following terms:
Can I please confirm, as discussed with Ken on Tuesday this week, that when Ken says he is 'reviewing the report', that his work is to advise on the range of reasonable responses open to the CEO as decision maker as a consequence of the findings of fact already established in the McGrathNicol report and not to undertake a much larger and inappropriate task of trying to stand in the fact-finder's shoes and review whether the report's findings are agreed or not. The CEO has already delegated the fact-finding support role to the investigator and those findings are in the report already. The next step is to advise on what to do as a consequence of the findings and to prepare the necessary supporting paperwork.
- [26]Mr Tapfield further deposes[13] that during the course of his employment, he made inquires and complaints regarding the way in which McGrath Nicol conducted investigations on behalf of the respondent.
- [27]The complaints and/or inquiries made by Mr Tapfield on 29 March 2019 and 15 August 2019 are the only complaints and inquiries identified by him in his affidavit in support of the application filed to commence the adverse action proceedings.
- [28]However, after the filing of the application for summary dismissal by the Council, Mr Tapfield filed a further affidavit particularising additional allegations of alleged adverse action. Those allegations refer to the following complaints or inquiries:
Complaints about Ms Webbe
- During the course of my employment, I had raised concerns regarding Ms Webbe's conduct with both Mr Knight and Mr Farmer.
- My concerns regarding Ms Webbe's conduct in all aspects of the investigation, included, but were not limited to:
- Firstly
- (i)helping the complainants prepare their advice and complaint to the CCC;
- (ii)her control and management of the complaint;
- (iii)her review of the investigation reports; and
- (iv)the review and direction in the preparation of show cause documentation.
- Secondly
- (v)her lack of consideration or concerns for the impact on the subject officers;
- (vi)the denial of procedural fairness to the subject officers in allowing McGrath Nicol not to provide the subject officers with the allegations made against them, who the complainant was and copies of the investigation reports; and
- (vii)her denigration of myself and my performance in executive forums
…
Workplace Investigation
30 October 2019
- On October 30 2019, I received correspondence directing me to attend a meeting a meeting on 1 November 2019 in relation to a workplace investigation to be undertaken by Mr Graham Newton of McGrathNichol, regarding the following allegations:
- That I [sic] failed to declare a conflict of interest;
- That I had awarded a position to Mr Ed Madigan who it was alleged was 'potentially unqualified' for the role; and
- That I [sic] failed to declare a conflict of interest regarding [sic] the engagement of a contractor.
…
Email regarding Concerns with McGrathNicol Investigation
- On 30 October 2019 I emailed Mr Farmer regarding concerns I had in relation to the proposed investigation that was to be undertaken by McGrathNicol.
- These concerns included:
- That I was concerned that due to previous correspondence with representatives of McgrathNicol, in my role as Manager People and Culture to review investigations conducted by them in order to provide advice to Council, as I was obligated to do so and prepare show cause letters, I believed my questioning of the methods applied in their investigations, reporting and findings [ [sic] ie: Tim Allen matter etal) that I would be denied Natural Justice or procedural fairness by the investigator [sic] in relation to this investigation;
- I did not believe that McGrathNicol could be impartial given my prior questioning of their reports;
- I had not been informed of who the complainant was, the scope of the investigation, what documentation or evidence they would be relying on or the methodology being used; and
- I also believe that I have not been given reasonable time to consider what has been alleged or to obtain advice prior to attending the interview.
…
- In response to my email, Mr Farmer wrote to me on 31 October 2019, advising that he had suspended the investigation.
- [29]It was submitted on behalf of Mr Tapfield that the complaints or inquiries he made were made in accordance with the Council's Code of Conduct and Mr Tapfield's obligations arising under his contract of employment, and, consequently, were made in relation to his employment.
- [30]The Council did not object[14] to the inclusion of the further complaints or inquiries referred to by Mr Tapfield in his affidavit filed on 25 March 2020.
Mr Tapfield's application should not be dismissed pursuant to section 541 of the IR Act
- [31]As noted above, the value judgement incorporated in s 541 of the IR Act is a broad one.
- [32]I have ultimately formed the view that this is not a case where I should exercise my discretion to dismiss Mr Tapfield's adverse action proceedings pursuant to s 541 of the IR Act because further proceedings are not necessary or desirable in the public interest.
- [33]It is the Council's case that none of the complaints or inquiries relied on by Mr Tapfield constitute the exercise of a workplace right as none of those complaints and inquiries are in relation to Mr Tapfield's employment.
- [34]The Council relies on an affidavit of Mr Farmer, the CEO of the Council. Mr Farmer deposes directly to the issue at hand and states that the McGrath Nicol's investigation and reports had no relationship or relevance to Mr Tapfield or his employment.
- [35]The Council further contends that the concerns raised by Mr Tapfield in relation to Ms Webb failed to identify the action that was taken against him for raising such concerns.
- [36]In response, Mr Tapfield contends that the complaints and inquires he made in relation to the McGrath Nicol investigation and the concerns he raised regarding Ms Webb, were complaints and inquiries in relation to his contractual obligations and about a subject that may prejudice his employment. Mr Tapfield submitted that a failure of the Council appointed investigator to follow procedural fairness and/or the other policies and statutory requirements of the Council, could have a prejudicial impact on his employment as he was responsible for implementing any resulting disciplinary action. Further, Mr Tapfield contends that any deficiency in an investigation and its finding will ultimately have a detrimental impact on him if he were to act on such findings and discipline another employee or terminate them.
- [37]In addition to this, Mr Tapfield argued that the rights and responsibilities of an employee in his position, and the source of those rights, must be understood in the context of a "highly regulated statutory environment" in which he worked, and the consequences he faced if he did not exercise those rights. In this regard, Mr Tapfield's reference to the highly regulated statutory environment in which he worked was a specific reference to the obligations he asserted arose under the Local Government Act 2009 (Qld) and Local Government Regulation 2012 (Qld).
- [38]Mr Tapfield contends that the rights and obligations arising out of his compliance with this regulatory regime were in addition to the rights set out in the code of conduct, which he must also abide by as an employee of the Council in accordance with the terms of his contract of employment.
- [39]In partial support of his position, Mr Tapfield relies on the decision in Bartlett v Signostics Ltd (In liq) (No. 2)[15] ("Bartlett") to submit that his complaints or inquires have the relevant nexus and that the matters raised by him had implications for his employment and the nature of the duties he performed as well as the rights and employment of other employees.
- [40]The Council contends that the facts of this matter can be distinguished from the circumstances in Bartlett. However, I am unable to express a view with respect to these matters as the relevant factual circumstances upon which the Commission must determine this issue is not sufficiently before the Commission.
- [41]At this juncture of the proceedings, and noting that not all evidence that the parties will rely on has been heard or, indeed, tested, I am not satisfied that the adverse action proceedings has no reasonable prospect of success.
- [42]The issue as to what constitutes a complaint or inquiry and whether or not it is in relation Mr Tapfield's to employment, are all matters which have not yet been fully developed in relation to the adverse action proceeding. Accordingly, to summarily dismiss the adverse action proceeding at this point in time, might have the effect of "stifling the development of the law"[16].
- [43]This is a case in which further content and context might be derived from the facts and in circumstances where there is presently not sufficient evidentiary material before the Commission, and where questions of facts and degree may be important to the resolution of the relevant legal issues. It follows that the the Commission ought not summarily dismiss this proceeding where there is still uncertainty as to what the facts might be and what issues or inferences may be derived from those facts.
- [44]For these reasons, I am not satisfied that the adverse action proceeding does not give rise to a genuine dispute in which Mr Tapfield may have some prospects of success.
Conclusion
- [45]The Council's application to summarily dismiss Mr Tapfield's adverse action proceedings is dismissed.
Order
- [46]I make the following order:
- The Respondent's application is dismissed.
Footnotes
[1] By filing an Application to deal with a general protections dispute.
[2] [2019] ICQ 18 (29 November 2019).
[3] [2014] ICQ 006.
[4] Ibid.
[5] Re Queensland Electricity Commission & Ors; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5.
[6] Re MEAA; ex parte Hoyts Corporation Pty Ltd (1993) 112 ALR 193 at 194.
[7] [2020] FCA 1709 (26 November 2020).
[8] Affidavit filed 26 November 2019.
[9] Paragraph 11 of Mr Tapfield's affidavit filed 26 November 2019.
[10] Ibid at [13].
[11] Ibid at [14].
[12] Ibid at [18].
[13] Ibid at [22].
[14] T1-16 L8-9.
[15] [2019] FCCA 3506 at [10] – [11].
[16] Hospitals Contributions Fund of Australia v Hunt (1982) 44 ALR 365.