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Bali v Public Trustee of Queensland[2022] QIRC 255

Bali v Public Trustee of Queensland[2022] QIRC 255

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bali v Public Trustee of Queensland [2022] QIRC 255

PARTIES: 

Bali, Ashika

(Applicant)

v

Public Trustee of Queensland

(Respondent)

CASE NO:

B/2022/48

PROCEEDING:

Application for an injunction

DELIVERED ON:

30 June 2022

HEARING DATE:

On the papers

MEMBERS:

Pidgeon IC

HEARD AT:

Brisbane

ORDERS:

Application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR INJUNCTION – where the applicant seeks to restrain the respondent from ending fixed term temporary employment – whether the Commission has jurisdiction to grant injunction – whether the applicant has failed to identify a breach of an industrial instrument – whether the applicant has a prima facie case – whether the balance of convenience favours injunctive relief

LEGISLATION:

Industrial Relations Act 2016 ss 447, 473, 539

Industrial Relations (Tribunals) Rules 2011 rr 18, 21

Public Interest Disclosure Act 2010 ss 48, 54

CASES:

ABC v O'Neill (2006) 227 CLR 5

Dalley & Ors v Kelsey & Ors [2018] ICQ 6

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

Kelsey v Logan City Council & Ors (No. 2) [2022] ICQ 13

United Firefighters Unions of Australia v Easy [2012] FCA 763

Reasons for Decision

Background

  1. [1]
    Ms Ashika Bali (the Applicant) is a Legal Advisor for the Public Trustee of Queensland (the Respondent) and seeks an injunction pursuant to ss 48 and 54 of the Public Interest Disclosure Act 2010 (the PID Act) and s 473 of the Industrial Relations Act 2016 (the IR Act).

Legal Framework

  1. [2]
    In relation to the power to grant injunctions pursuant to the IR Act:

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. (2)
    The injunction may apply to—
  1. (a)
    the officers or members of an organisation generally; or
  1. (b)
    particular officers or members of an organisation; or
  1. (c)
    a particular employer; or
  1. (d)
    a particular employee.

…

  1. (9)
    The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.
  1. (10)
    In this section—

injunction includes an interim injunction.

organisation includes a branch of the organisation.

  1. [3]
    In relation to the power to grant injunctions pursuant to the PID Act:

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
  1. (b)
    involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act.
  1. (2)
    The application may be made by—
  1. (a)
    the employee; or
  1. (b)
    an industrial organisation—
  1. (i)
    whose rules entitle it to represent the industrial interests of the employee; and
  1. (ii)
    acting in the employee’s interests with the employee’s consent; or
  1. (c)
    the Crime and Corruption Commission acting in the employee’s interests with the employee’s consent if—
  1. (i)
    the employee is a public officer; and
  1. (ii)
    the reprisal involves or may involve an act or omission that the Crime and Corruption Commission may investigate.
  1. (3)
    The Industrial Relations Act 2016, section 473 applies to the application, but this part prevails if it is inconsistent with that section.
  1. (4)
    If the industrial commission has jurisdiction to grant an injunction on an application under subsection (1), the jurisdiction is exclusive of the jurisdiction of any other court or tribunal other than the Industrial Court.
  1. (5)
    Without limiting this section, the application is an industrial cause within the meaning of the Industrial Relations Act 2016.

…

54 Interim Injunction

An interim injunction may be granted pending the final decision on an application for an injunction under this part.

  1. [4]
    Ms Bali's current fixed term temporary employment engagement concludes on 30 June 2022.
  1. [5]
    On 16 June 2022, Ms Bali filed a Form 2 general application for an injunction.  Schedule 2 of that application sets out the grounds for application:

The Respondent has engaged in conduct amounting to a reprisal under the Public Interest Disclosure Act 2010.  The Respondent has terminated the Applicant's employment because the Applicant lawfully raised concerns about the manager's wrongdoings and mismanagement to the Public Trustee of Queensland/CEO and the Crime and Corruption Commission. The Respondent terminated the Applicant's employment despite a confirmation of a six-months extension from 1 July 2022 and a further long term contract, either on a year-to-year plan for 6 years or a full 6-year contract was confirmed on 21 March 2022.

The Respondent has engaged and is engaging in conduct amounting to a reprisal under the Public Interest Disclosure Act 2010 by advertising the Applicant's position on the same day the Applicant informed the Respondent that she has raised her concerns with the Crime and Corruption Commission which included her concerns about the reprisal for making a Public Interest Disclosure and intending to make a Public Interest Disclosure. 

The Respondent has engaged and is engaging in conduct amounting to a reprisal under the Public Interest Disclosure Act 2010 by proceeding with the recruitment process for the position which had already been offered to the Applicant and accepted.

The Respondent has engaged and is engaging in conduct amounting a reprisal under the Public Interest Disclosure Act 2010 by ceasing, neglecting and ignoring all communication about the agreement regarding the Applicant's employment immediately prior to the Applicant raising concerns about the manager's wrongdoing and mismanagement.

The Respondent has engaged in conduct amounting to a reprisal under the Public Interest Disclosure Act 2010 through various of its senior officials by aiding, abetting, counselling or procuring a reprisal, inducing or attempting to induce a reprisal by threats and by being directly and/or indirectly, knowingly concerned in, or party to, a reprisal.

This application is made pursuant to section 473 of the Industrial Relations Act and section 48 and 54 of the Public Interest Disclosure Act 2010.

  1. [6]
    In Schedule 1 to her application, Ms Bali lists the following details of decision sought:
  1. That pending the final decision on this application, an interim injunction be granted under section 54 of the Public Interest Disclosure Act 2010 stopping the Respondent from terminating the Applicant's employment and recruiting another person in the Applicant's position as an act of reprisal to punish the Applicant for raising concerns about wrongdoings and mismanagement against the manager.
  2. That the Respondent remedy the detriment caused to the Applicant because the Applicant lawfully raised concerns against the manager's wrongdoings and mismanagement.
  3. That the Respondent cease the retaliatory recruitment process to replace the Applicant when the Applicant informed the Respondent that she had raised her concerns about the wrongdoings and mismanagement of the National Redress Scheme Unit with the Crime and Corruption Commission.
  4. That the Respondent fulfill the agreement of a 6-months extension of the contract from 1 July 2022 which was confirmed on 21 March 2022. 
  5. That the Respondent reverse the termination of the Applicant's employment from 30 June 2022 because the Applicant lawfully raised concerns about the manager to the Public Trustee of Queensland/CEO and the Crime and Corruption Commission.
  6. That the Respondent fulfil its promise that the Applicant would continue in the position after the further 6 months extension, either on a year to year plan or a 6-year contract.
  7. That the Respondent refrain from discontinuing its promises about the Applicant's employment with the Respondent because the Applicant has lawfully raised concerns about the manager to the Public Trustee of Queensland/CEO and the Crime and Corruption Commission.
  8. That the Respondent reimburse the Applicant for loss of wages as the Applicant was forced to take medical leave due to the victimisation caused by the Respondent in retaliation to the concerns lawfully raised by the Applicant against the manager.
  9. Such order or further order as the Commission deems fit.

This application is made under section 473 of the Industrial Relations Act 2016 and sections 48 and 54 of the Public Interest Disclosure Act 2010.

  1. [7]
    Ms Bali's application was also accompanied by an Affidavit and associated documents.
  1. [8]
    At a mention of the matter, I confirmed my understanding that Ms Bali had only one matter before this Commission, the application for injunction. 
  1. [9]
    With regard to Ms Bali's request for an interim injunction pending the final decision on her injunction application, I informed the parties that I would hear and decide the matter prior to 30 June 2022 when Ms Bali's employment was due to end. Therefore, I did not think it necessary to consider the request for an interim injunction.  The parties address this matter in their written submissions and it appears to be common ground that there was no need for an interim injunction.  As will be discussed below, this application for injunction is now apparently seeking to make reference to a general protections application (the new application).  The new application will need to be conciliated and heard by a member of the Commission in due course.
  1. [10]
    On 23 June 2022, the Respondent filed its written submissions as per my directions issued following the mention of the matter.   The Respondent contended that the Commission lacks jurisdiction to order the relief and the application should be dismissed because:
  1. (a)
    the Application does not meet the requirements of s 48(1)(b) of the PID Act or s 473(1)-(2) of the IR Act to grant an injunction.
  2. (b)
    the balance of convenience favours not granting an interim injunction in accordance with s 54 of the PID Act; and
  3. (c)
    the Commission does not have power to order the injunctive relief in the terms sought.
  1. [11]
    The Respondent pointed out that Ms Bali had not identified an Industrial Instrument, permit,[1] or provision of the IR Act that she alleges has been contravened or will be contravened, or that she asks the Commission to compel the Respondent's compliance with, as required under s 473(1) of the IR Act. On that basis, the Respondent argued that the Commission has no jurisdiction to deal with the application.
  1. [12]
    Similarly, with regard to s 48 of the PID Act, the Respondent says that Ms Bali's application for injunction identifies no breach, or potential breach, of the IR Act.  As such, the Respondent says that the Commission lacks jurisdiction to grant injunctive relief under s 48 of the PID Act.

Ms Bali's general protections matter filed 24 June 2022

  1. [13]
    On 24 June 2022, Ms Bali filed a general protections claim alleging adverse action.  I assume that this step was taken having received the Respondent's submissions on the injunction application and realising that a substantive application had not been filed and therefore the Commission would likely lack jurisdiction to hear the injunction application. 
  1. [14]
    I have reviewed that file and note that it alleges a number of contraventions but does not particularise these or specifically reference which sections of the IR Act Ms Bali claims have been breached.  In fact, Ms Bali's submissions with regard to this matter note that she has provided the 'nature of the claim' and notes that there may be 'an anomaly in the application form in respect of expressly itemising each section of the IR Act and industrial instruments'.  Ms Bali asks that 'consideration be given to the context of the application and what it seeks to remedy in additional to the urgency with which the application was filed…'.
  1. [15]
    Ms Bali submits that the Commission should 'give weight to the substance of the Application rather than the form' and per s 447(2) of the IR Act, avoid unnecessary technicalities to facilitate fair and practical conduct of proceedings under the IR Act.   Ms Bali also refers to s 539 of the IR Act which empowers the Commission to 'correct, amend or waive' any 'error, defect or irregularity' whether 'substantive or formal'.
  1. [16]
    Ms Bali's submissions and the filing of the new application were beyond the scope of the application before me and the submissions of the Respondent such that I determined that it would create significant unfairness to the Respondent if it were not given a chance to reply. 
  1. [17]
    Given the tight timelines to hear and decide the matter on the papers, I invited the Respondent to make further submissions.  The direction requested the submissions by 10.00am on 29 June 2022 and following a request from the Respondent, I extended that time to 3.00pm.  The submissions were filed at approximately 3.35pm to which Ms Bali has raised an objection. In the interests of fairness and progressing the matter for decision by 30 June 2022, I have allowed the Respondent's submissions.  The prejudice to Ms Bali in accepting filing of material 30 minutes late is by far outweighed by the prejudice to the Respondent if it were unable to reply to Ms Bali's submissions seeking to significantly reshape the matter.

Respondent submissions in reply to Ms Bali

The application should be dismissed

  1. [18]
    The Respondent maintains that the application should be dismissed because the 'attempt to regularise the application using the new application':
  1. (a)
    is contrary to the Industrial Relations (Tribunals) Rules 2011 and ineffective – such that the Respondent's submissions remain live;
  2. (b)
    still fails to identify a breach of the Industrial Relations Act 2016 or Industrial Instrument; or alternatively
  3. (c)
    does not satisfy the test for the ordering of the interlocutory injunctions (if that is what it now purports to do).

The application has not changed

  1. [19]
    The Respondent says that the Industrial Relations Tribunal Rules 2011 (the Rules), Part 2, Div. 2, outlines how and when an application can be amended.  The Respondent says that Ms Bali has not attempted to amend her application according to the Rules, which relevantly require: an amended application be filed that incorporates the amendments and replaces the original application;[2] and the applicant must serve the amended application as soon as practicable, but at least 7 clear days before the hearing.[3]
  1. [20]
    The Respondent contends that the parties knew this Commission was to hear and decide the application on the papers, on or before 30 June 2022.  Had Ms Bali amended the application as required, it would not have been served seven clear days before then.  The Respondent says that Ms Bali's 'attempt to merge and blur the lines of this application and the new application filed 24 June 2022 is inconsistent with the Rules.  Further, the Respondent says that Ms Bali is also attempting to 'change the nature of this application from one of substantive relief to, essentially, interlocutory relief in the new application.
  1. [21]
    The Respondent says that the Rules cannot be circumvented to prejudice parties.

Ms Bali has not clearly identified a breach of the IR Act

  1. [22]
    The Respondent says that even if the new application were to be taken into account as part of this Application, it is unable to identify a properly articulated alleged breach of the IR Act, or Industrial Instruments.
  1. [23]
    The Respondent says that to assert a contravention of Chapter 8 of the IR Act, certain elements must be clearly articulated, and causally connected, to allow the reverse onus to be engaged.  The Respondent notes the observation of Ross J in United Firefighters Unions of Australia v Easy[4] cited by O'Connor VP in Gilbert v MNHHS & Ors:[5]

…[I]t is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent's conduct.  The onus does not shift from the applicant to the respondent until the applicant established the elements of each of the general protections upon which it seeks to rely.  It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.

[Emphasis added by Respondent]

  1. [24]
    The Respondent says that Ms Bali's response 'variously refers to alleged adverse actions, and alleged 'complaints' made, but makes no allegation that works through and meets each necessary element to found a cause of action under Chapter 8 which it says is identified in Gilbert as:[6]
  1. (a)
    the conduct that she alleges was taken in fact occurred;
  2. (b)
    the workplace right alleged exists (or she was relevantly protected);
  3. (c)
    the conduct constitutes adverse action for the purposes of s 282;
  4. (d)
    the alleged proscribed reason for that conduct is within one or more of the relevant proscribed categories; and
  5. (e)
    the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose.
  1. [25]
    The Respondent says that there is an obligation on Ms Bali to 'identify her allegations adequately and coherently under Chapter 8 as a matter of fairness.  There is no identifiable breach at this stage'.
  1. [26]
    With regard to Ms Bali's submissions alleging a breach of Industrial Instruments, the Respondent says that this is 'clearly an afterthought asserted by the Applicant in an attempt to regularise her claim'.  The Respondent says that there is nothing in Ms Bali's affidavit evidence to indicate that she sought to formally or informally invoke the grievance process under the Modern Award about an 'industrial matter' and says that Ms Bali's intentions have always been to make a PID.

Ms Bali requests an impermissible use of s 539 of the IR Act

  1. [27]
    With regard to Ms Bali's request that through s 539 of the IR Act, the Commission fulfil its functions under s 447(2) of the IR Act by avoiding unnecessary technicalities and facilitating fair and practical conduct of proceedings under this Act, the Respondent says

Ms Bali appears to argue that where a breach of the IR Act is discoverable in her material, or where this has not been adequately articulated, the Commission has enough before it to discover the claim. The Respondent says that Ms Bali's response takes a course that is inconsistent with the IR Rules and unsuccessfully attempts to satisfy s 48(1)(b) of the PID Act by 'making general, broad and incomplete allegations of a breach of the IR Act or Industrial Instrument'.

  1. [28]
    With reference to the matter of Kelsey v Logan City Council & Ors (No. 2),[7] where the appellant filed an application to appeal without identifying any grounds of appeal and having later identified grounds sought to amend, the Respondent says that the President observed that such a discretionary exercise of power available under s 539 'is limited to achieving the functions for which judicial power has been bestowed' and 'the object of the exercise of judicial discretion is to do justice between the parties…'.[8]  The Respondent says that in that matter, the President did not exercise his power under s 539 in the circumstances for reasons similar to those in this matter: the appellant was a lawyer, knew the application had to articulate grounds of appeal but did not do so, and made no attempt to fulfil the substantive requirements of the IR Rules.[9]
  1. [29]
    The Respondent submits that Ms Bali's suggested use of s 539 does not promote fairness or the practical conduct of the application but frustrates it, to the detriment of the Respondent.

The Application for interlocutory injunctive relief

  1. [30]
    The Respondent submits that the Commission does not get to the point of considering the test for ordering an injunction given the jurisdictional hurdles that remain for the application.
  1. [31]
    The Respondent goes on to make submissions in the event that I permit Ms Bali to rely on her submissions and the filing of the new application to support an interlocutory injunction, the test for ordering injunctive relief is not satisfied.

I will hear this application for injunction on the basis that Ms Bali has now filed a general protections application.

  1. [32]
    It is unfortunate that Ms Bali did not file the substantive matter prior to or alongside the application for the injunction. It appears that Ms Bali did so only after having the advantage of the Respondent's submissions.  It puts the Respondent at a disadvantage as its submissions were made addressing the only matter before the Commission at the time of the mention and the directions being issued. The filing of the general protections matter after the Commission has determined the way the injunction application will progress is also not ideal.
  1. [33]
    There are some difficulties with the application Ms Bali has filed under s 309(2) of the IR Act.  The application lacks specificity about the sections of the Act Ms Bali alleges have been breached or not complied with.  However, now that that matter has been filed, I am unwilling to dismiss the application on the jurisdictional basis put forward by the Respondent in its first submissions.
  1. [34]
    Relevantly, Ms Bali has not sought to amend the application before me. 
  1. [35]
    It appears from her submissions that what Ms Bali is asking me to do is to amend this application on her behalf and also undertake a process of identifying the alleged contraventions in her new general protections application.

Consideration of principles that apply to an application for an interim injunction

  1. [36]
    In Dalley & Ors v Kelsey & Ors,[10] when considering the ordinary principles that apply to an application for an interim injunction, Martin J observed:
  1. [27]
    The test to be applied when considering whether to grant an interlocutory injunction is prescribed in ABC v O'Neill where Gummow and Hayne JJ said:
  1. "[65]
    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd.  This Court (Kitto, Tyalor, Menzies and Owen JJ) said that on such application the court addresses itself to two main inquiries and continued: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief…The second inquiry is…whether the inconvenience or injury would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

By using the phrase 'prima facie case' their Honours did not mean that the plaintiff must show that it is more probable than not that at the trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect in made by Kitto J in the course of argument.  With reference to that first inquiry, the Court continued, in a statement of central importance for this appeal:

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

[citations omitted]

  1. [37]
    Essentially, the matters to be considered in determining whether to grant Ms Bali's application for injunctive relief are: whether Ms Bali has made out a prima facie case; and whether the inconvenience or injury likely to be suffered by the plaintiff outweighs that of the Respondent.

Has Ms Bali made out a prima facie case?

  1. [38]
    Ms Bali makes a range of allegations in her submissions and affidavit.  However, Ms Bali does not meet her obligation of articulating a cause of action under Chapter 8 of the IR Act.  I am unwilling to undertake the task of taking each of Ms Bali's assertions and establishing the elements of each of the general protections Ms Bali seeks to rely.[11] 
  1. [39]
    Ms Bali may have some prospect of success at a point when she has better articulated her case. However, on the material currently before me, I am unable to conclude that Ms Bali has a sufficient likelihood of success to justify the preservation of the status quo pending the progress of her general protections claim.[12]
  1. [40]
    Among her allegations, Ms Bali argues that she has been dismissed from her employment.  On the material before me, I cannot find that Ms Bali has a prima facie case regarding dismissal or termination. It appears to have been clear to Ms Bali from late April that her contract had not been extended or that a new contract had not been offered and accepted.  Ms Bali continued to follow up and this demonstrates her knowledge that nothing formal had been agreed.  Ms Bali was a fixed term temporary employee and her contract of employment, in the absence of a new contract being offered and accepted, finishes on 30 June 2022.

If a prima face case had been sufficiently established, what does perseveration of the status quo look like in this matter?

  1. [41]
    The Respondent submits that the object of injunctive relief is to maintain the status quo pending trial. It is the Respondent's position that the status quo is not met in keeping Ms Bali employed because she is not an employee beyond 30 August 2022.  The Respondent says that Ms Bali's fixed term employment expires on 30 June 2022, and the Respondent has extended Ms Bali's employment for two months as per its offer. The Respondent says that it should not be bound to maintain the employment where the Applicant's status and duration of employment beyond 30 June 2022 is unclear.
  1. [42]
    Ms Bali says that the current application seeks to prevent the Respondent from 'making the applicant's position unavailable to the applicant'.  Even if Ms Bali had sufficiently established a prima facie case, it seems to me that the 'status quo' which would be secured by way of an injunction, would reflect her current employment arrangement which is that of a fixed term temporary appointment due to conclude 30 June 2022. 
  1. [43]
    Ms Bali has not made out a prima facie case sufficient to justify the preservation of the status quo.  Even if she had, I find that the status quo would not involve an order that the Respondent continue her employment beyond the end of her fixed term temporary arrangement.
  1. [44]
    Having established that Ms Bali has not met the first of the two principles to consider in determining whether to grant injunctive relief, it is probably not necessary to consider the second. However, for completeness I will consider the balance of convenience.

Does the balance of convenience favour injunctive relief?

  1. [45]
    Ms Bali's affidavit says that on 19 May 2022, she received an email offering her a two-month extension of her contract and asking for confirmation that she accepted this.  It appears that Ms Bali did not reply to that offer. Ms Bali says that on 9 June 2022, she was contacted about the two-month extension and given two days to respond.  While Ms Bali says that this was a 'short 2 working day deadline', it seems to me that it was reasonable for the employer to request confirmation about the two-month extension when it had been offered some three weeks earlier and in the event Ms Bali was not accepting the extension, the Respondent would need to recruit someone to take up the position.  This is especially so given the importance of the work of the National Redress Scheme (NRS).
  1. [46]
    Ms Bali says that the role she had been filling was advertised without her knowledge on 30 May 2021.  I note Ms Bali says she became aware of the role being advertised by way of an email to all staff about temporary employment opportunities.  It appears that Ms Bali initially applied for this role but then withdrew her application.   It also seems to me that both the advertising of the role and the offer of the two-month extension would have served to confirm to Ms Bali that her fixed term temporary arrangement was expiring on 30 June 2022.  The Respondent says that Ms Bali 'appears to be alive to the uncertainty about her employment duration, relying on protections for 'prospective employees'[13] and seeking injunctive relief for a period of six years' employment.
  1. [47]
    Having formed a belief that the six-month extension would not be forthcoming and that she had been treated unfairly, it was open to Ms Bali to accept the two-month extension to the role when it was offered to her (or between 9 and 11 June when she was asked for confirmation that she would be continuing her employment with the Respondent). This would have extended Ms Bali's employment while she continued to prosecute her various complaints.  It was also open to Ms Bali to apply for the role (or in the event that she did, leave her application for the role active).
  1. [48]
    Ms Bali says that she seeks to continue to fill the position of Legal Advisor.  Ms Bali says that the Respondent will not suffer any hardship or detriment if the Application is granted and that the Respondent would not be prejudiced if this application is granted.
  1. [49]
    Ms Bali says she meets the merit test and has extensive understanding and experience in the NRS unit and that her work is of high quality. Ms Bali asks that the Commission consider the Public Service Act 2008 which establishes employment on tenure as the default basis of employment in the public service.  Ms Bali says that the NRS has funding until 2028 and notes that the Recruitment and Selection Directive: 12/20 enables the Chief Executive to exempt a vacancy from advertising or electing to limit the advertising where there is a justification for doing so.  
  1. [50]
    It does not seem to be in dispute that Ms Bali has merit for the role.  However, what Ms Bali appears to be asking me to do via this Application is to circumvent the Respondent's recruitment and selection processes by ordering the Respondent to appoint Ms Bali to a role she did not apply for (or does not currently have an active application for).
  1. [51]
    Ms Bali appears to have made a decision not to accept the two-month extension of the temporary engagement but now asks me to exercise discretion to grant her a six-month extension of the temporary contract. (A six-month contract which does not exist as it appears the recruitment process is seeking someone to fulfil a 12-month temporary engagement).  I do not think that this is an action available to me[14]  and in any case, as discussed above, I do not find that Ms Bali has established a prima facie case as it relates to dismissal.
  1. [52]
    The Respondent says that the recruitment process for the position is underway and that to prevent the process from continuing would be disruptive and prejudicial to the Respondent.  Given the importance of the work being undertaken in the NRS, I agree. It is not in the public interest to preclude the employer from seeking to appoint someone to the fixed term temporary role.
  1. [53]
    Ms Bali submits that in balancing the rights of all the parties, the prejudice which would be caused to Ms Bali by the Respondent proceeding to recruit another person weighs more heavily than the potential prejudice which might be suffered by the Respondent.
  1. [54]
    The Respondent notes that if Ms Bali were successful in her newly filed application, and it is found that she was terminated from her employment, which it denies, she is entitled to seek re-employment in the same or similar position and compensation and continuation of service, all things she has done in her application.[15]
  1. [55]
    While there is prejudice to Ms Bali in that she will need to seek employment elsewhere, I again note that Ms Bali's fixed term employment was coming to an end, and she chose not to accept the extension of the fixed term temporary engagement.
  1. [56]
    While her fixed term temporary engagement ends today, Ms Bali will not be precluded from continuing to prosecute her matters in the QIRC and in the other jurisdictions where she has made complaints.  If successful in her claim/s, there are a range of remedies the Commission may order.  Ms Bali also seeks an order from me today to 'remedy the detriment' to her.  This will be a matter for the Commission to consider when Ms Bali's new application is heard. Ms Bali is not precluded from pursuing such an outcome by my decision today to dismiss this application.  The request for an order to stop the recruitment process is dismissed for the same reasons I am not ordering Ms Bali be employed by the Respondent for the coming six months. 
  1. [57]
    The application for an injunction is dismissed.  Ms Bali's substantive matter filed subsequent to this application for an injunction will be set down for conciliation in due course.

Footnotes

[1] Defined in Schedule 5, IR Act.

[2] The Rules, r 18.

[3] The Rules, r 21.

[4] [2013] FCA 763, [41].

[5] [2021] QIRC 255.

[6] [2021] QIRC 225, [35].

[7] [2022] ICQ 13.

[8] [2022] ICQ 13, [46].

[9] [2022] ICQ 13, [58]-[59].

[10] [2018] ICQ 6.

[11] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 225, [35].

[12] ABC v O'Neill (2006) 227 CLR 57, cited in Dalley & Ors v Kelsey & Ors [2018] ICQ 006.

[13] Ms Bali's general protections application filed 24 June 2022, application schedule 2, grounds 6 and 7.

[14] See, for example, Carey v Department of Justice and Attorney-General (No 2) (2002) QGIG 17.

[15] See, for example, Smith v State of Queensland [2021] QIRC 340, [48].

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Editorial Notes

  • Published Case Name:

    Bali v Public Trustee of Queensland

  • Shortened Case Name:

    Bali v Public Trustee of Queensland

  • MNC:

    [2022] QIRC 255

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    30 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
ABC v O'Neill (2006) 227 CLR 5
1 citation
Jump To
Cite 1 - (2006) 227 CLR 5
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
1 citation
Jump To
Cite 1 - (2006 ) 227 CLR 57
Carey v Department of Justice and Attorney-General (No 2) (2002) QGIG 17
1 citation
Jump To
Cite 1 - (2002) QGIG 17
Dalley v Kelsey [2018] ICQ 6
3 citations
Jump To
Cite 1 - [2018] ICQ 6
Cite 2 - [2018] ICQ 6
Cite 3 - [2018] ICQ 6
Gilbert v Metro North Hospital Health Service [2021] QIRC 255
2 citations
Jump To
Cite 1 - [2021] QIRC 255
Cite 2 - [2021] QIRC 255
Kelsey v Logan City Council (No 2) [2022] ICQ 13
4 citations
Jump To
Cite 1 - [2022] ICQ 13
Cite 2 - [2022] ICQ 13
Cite 3 - [2022] ICQ 13
Cite 4 - [2022] ICQ 13
Kirby v Workers' Compensation Regulator [2021] QIRC 225
2 citations
Jump To
Cite 1 - [2021] QIRC 225
Cite 2 - [2021] QIRC 225
Smith v State of Queensland (Queensland Health) & Anor [2021] QIRC 340
1 citation
Jump To
Cite 1 - [2021] QIRC 340
Thompson v Kane (No. 2) [2012] FCA 763
1 citation
Jump To
Cite 1 - [2012] FCA 763
United Firefighters Union of Australia v Easy [2013] FCA 763
1 citation
Jump To
Cite 1 - [2013] FCA 763

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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