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  4. McMahon v Mount Isa City Council - [2023] QIRC 346

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McMahon v Mount Isa City Council[2023] QIRC 346

McMahon v Mount Isa City Council[2023] QIRC 346

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

McMahon v Mount Isa City Council [2023] QIRC 346

PARTIES:

McMahon, Clair

(Applicant)

v

Mount Isa City Council

(Respondent)

CASE NO:

TD/2020/21

PROCEEDING:

Application for reinstatement

DELIVERED ON:

30 November 2023

HEARING DATE:

22 February 2021

23 February 2021

24 February 2021

MEMBER:

Hartigan DP

HEARD AT:

Mount Isa

ORDER:

The application in proceedings TD/2020/21 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where applicant seeks reinstatement – where applicant claims she was constructively dismissed – where the respondent raises a jurisdictional objection that the applicant was not dismissed – consideration of relevant factors – application is dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 316 and 317

CASES:

State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 34

APPEARANCES:

Ms C. McMahon, the Applicant.

Mr T. Wild of the Local Government Association of Queensland for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Clair McMahon seeks reinstatement to her former position as Human Resource Officer at the Mt Isa City Council ('the Council'). In the alternative to reinstatement, Ms McMahon seeks compensation and other ancillary relief.
  1. [2]
    Ms McMahon's employment with the Council was terminated on 4 February 2020 following Ms McMahon forwarding an email to Ms Marshall, Manager, People and Culture[1] in the following terms:

…

Good morning

I submit my resignation from Mount Isa City Council, giving 4 weeks notice which is 3 March 2020.

Regards Clair McMahon

…

  1. [3]
    The Council raises a jurisdictional objection to the application for reinstatement on the basis that Ms McMahon was not dismissed by the Council and accordingly, the termination of employment is not a 'dismissal' for the purpose of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Relevantly, the Council contends that Ms McMahon's employment terminated at her own initiative.
  1. [4]
    In addressing the jurisdictional objection, regard will also be had to the relevant factual matrix leading up to the termination of employment in order to objectively analyse the employer's conduct.
  1. [5]
    Only if it is found that Ms McMahon was constructively dismissed by the Council, will it then be necessary to determine whether the dismissal was unfair, and if so, the remedy (if any) that should be granted.
  1. [6]
    On 24 November 2023, an order was issued dismissing the proceedings. These are the reasons for that order.

Statutory framework and relevant principles

  1. [7]
    As noted above, it is necessary to consider whether Ms McMahon was constructively dismissed. The term 'constructively dismissed' is not referred to or defined in the IR Act. The common law has developed a number of principles to be applied in determining whether a termination of employment amounts to a constructive dismissal.
  1. [8]
    In State of Queensland (South West Hospital and Health Service) v Crews-Bradley[2] Deputy President O'Connor (as His Honour then was) applied the decision of Cook v CFP Management Pty Ltd where Williams JA (with who de Jersey CJ and Helman J concurred) at [17] wrote:

"The expression 'constructive dismissal' has not been widely used in Australian jurisprudence. It has been used in a number of English decisions where the court was concerned with statutory provisions extending the meaning of 'dismissal' to include circumstances where the employee was entitled to terminate or was justified in terminating the employment contract because of conduct of the employer. But the expression is not recognised by the common law, and there are no applicable statutes here extending the definition of dismissal. In most Australian cases where there has been limited reference to 'constructive dismissal', the reference has essentially been to conduct on the part of the employer which would constitute repudiation of the contract.

Hayne JA referred to some of the English cases dealing with the concept on pages 159-161 of his reasons in Spencer v Dowling and Anor [1997] 2 VR 127. At 160 he said:

'But the fundamental question presented by the so-called ‘constructive dismissal’ cases is whether the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively.'

On the previous page (159) he stated what, in my respectful view, is the appropriate test. In considering whether or not there had been a dismissal of the complainant, he said: "Of course, that is not the form of what happened; the complainant tendered her resignation. But the point is not [to] be determined according to the form of what occurred. Was the substance of it that the respondent dismissed the complainant?" That, to my mind, is the correct approach in law. One does not look merely to the form which the termination took, but rather one looks for what was the substantial cause of the termination. If by conduct the employer had repudiated the contract of employment without giving a formal notice evidencing that the employment was terminated, the employee is entitled to give a notice in effect electing to accept the employer's repudiation."

In Allison v Bega Valley Council, the Full Bench of the Industrial Relations Commission of New South Wales wrote:

"Although the term 'constructive dismissal' is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case by case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.

Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed."

…

In Ngo v Link Printing Pty Ltd ('Ngo'), it was held an employer is generally able to treat a clear and unambiguous resignation as a resignation. Citing Murphy JR in Minato v Palmer Corporation Ltd, the Full Bench found:

"The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

'In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise …' "(citations omitted)

…

Conduct of the Council leading up to the termination of employment

  1. [9]
    Ms McMahon contends that in addition to the conduct engaged in by the Council immediately prior to the termination of the employment regard should also be had to what she described as a 'toxic culture' at the Council during her employment as well as what Ms McMahon considers Council's failure to do certain things during the course of the employment.
  1. [10]
    As will be highlighted further below, Ms McMahon does not establish, with any precision, the basis upon which she asserts that the broad spectrum of conduct and events that she relies on, some of which occurred many months before the termination of employment, amount to conduct that evinces an intention, by the Council, not to be bound by the contract of employment.

Relevant Background

  1. [11]
    By way of background, Ms McMahon commenced employment with the Council on 29 July 2013.
  1. [12]
    Since at least 2015, Ms McMahon worked as a Human Resources Officer for the Council and for a period between November 2017 to late August/early September 2019[3] was the acting Human Resources Coordinator for the Council.
  1. [13]
    In April 2018, the Council externally advertised for the position of Manager, Human Resources. Ms McMahon applied for the position at that time however, the Council ultimately withdrew the advertisement for the position. Over the following 12 months the Council re-commenced the recruitment process for the Manager position. Ms McMahon continued to act in the Coordinator role whilst the recruitment process was on foot.
  1. [14]
    Ms McMahon's departure from the acting Human Resources Coordinator role and return to her substantive role in August 2019 occurred when Ms Marshall was appointed as the Manager, Human Resources. 
  1. [15]
    During the relevant period, Ms McMahon also had secondary employment with the Council on a casual basis as a kiosk attendant at the municipal pool operated by the Council.
  1. [16]
    Ms McMahon appears to have been aggrieved by the manner in which Ms Marshall was appointed to the role as Manager, Human Resources, including the fact that before Ms Ibardolaza, Chief Executive Officer, communicated the appointment to Ms McMahon she learned of the appointment after receiving an email from the recruitment agency advising of the details of the appointment. Further, Ms McMahon appears to have taken offence that Ms Marshall commenced her employment at the Council on Ms McMahon's birthday. Her evidence in this regard was as follows:[4]

…

I’ll put it to you that in the days leading up to Ms Marshall’s appointment – commencement in August - - -?---Yes.

- - - 2019, that you said in the workplace to your team members collectively - - -?---There was only Kirsten, I believe, at the time.

- - - words to the effect that you believed Ms Ibardolaza deliberately started Ms Marshall’s employment on your birthday and I’ll quote, it’s alleged that you said:

Why would she – Ms Ibardolaza – start Fran on my birthday.

What do you say about that?---It wasn’t that they did. I asked why would you. It’s a very – for me, I just thought it was strange that out of all of the schematics of not being told she was coming, of being told that it would be for two years and yeah – just – it was on my birthday. It was a very awkward first day with Fran and I felt really awkward in that I didn’t know her and we were – you know, we went out to lunch at the pub I didn’t really feel like we were supposed to or that we could’ve or like – it was just – it made for a very awkward first day for Fran – I – well I felt and thought would be awkward for someone to come and start on someone’s birthday. Yes.

…

  1. [17]
    Ms McMahon contends[5] that the "constructive dismissal was related to the capacity to do my job due to Ms Marshall creating a hostile work environment bullying me for 3 months, not affording procedural fairness whilst suspended, failing to provide responses after 5 and 7 days respectively of questions asked relating to suspension/investigation and acting with prejudice once I was terminated as Ms Marshall refused to pay annual leave and public holiday accruals as part of my termination pay". 
  1. [18]
    In support of her position, Ms McMahon called evidence which she says supports a conclusion that there was a culture of bullying in the Council and relevantly that Ms McMahon was subjected to bullying by Ms Marshall. Ms McMahon does not positively assert how the alleged bullying by Ms Marshall is conduct relevant to the alleged dismissal. It can be inferred, however, that Ms McMahon contends that the Council, through its Senior Officers, was aware of the bullying and permitted it to occur, and by extension, Ms McMahon would continue to be bullied into the future in a manner that was inconsistent with the employment relationship.
  1. [19]
    I will analyse the evidence Ms McMahon seeks to rely on in relation to the alleged bullying culture at the Council further below.
  1. [20]
    Additionally, Ms McMahon also contends that Council failed to consider a request to reclassify her position (when it was raised by Ms McMahon in July 2019), failed to provide her with training and failed to conduct a performance appraisal in June 2019.
  1. [21]
    Ms McMahon does not positively assert the relevance of this contention to her position that she was constructively dismissed on 4 February 2020. I will analyse this contention further below.
  1. [22]
    Finally, Ms McMahon relies on the conduct of the Council associated with the complaint that the Council received and the proposed investigation of that complaint and the suspension of Ms McMahon from her employment. It is this alleged conduct which immediately precedes the termination of employment. This conduct will be analysed further below.
  1. [23]
    There are other ancillary matters that Ms McMahon makes allegations about however given the nature of the allegations, I do not consider those allegations to be relevant to my consideration as to whether the conduct of the Council was such as to amount to a constructive dismissal of Ms McMahon.
  1. [24]
    The allegations that fall into this category include that drug and alcohol test/s were allegedly undertaken by employees who were not appropriately qualified and that other employees had grievances with the Council with respect to how they were treated.

Culture at the Council

  1. [25]
    Ms McMahon contends that from the commencement of Ms Marshall's employment, in August 2019, multiple staff were bullied by Ms Marshall.
  1. [26]
    Ms McMahon further contends that the CEO, Ms Sharon Ibardolaza and senior management, were aware of the bullying culture but did nothing about it.
  1. [27]
    Ms McMahon called evidence from Mr Hart, Mr Gauvin and Ms Richardson in support of her contention that there was a culture of bullying at the Council generally and by Ms Marshall in particular.
  1. [28]
    Neither Ms Hart and Mr Gauvin give evidence that they had directly been bullied by Ms Marshall.
  1. [29]
    Rather, Mr Hart's evidence[6] was that on 13 December 2019, Ms Richardson approached him distressed by an interaction she had had with Ms Marshall and what Mr Hart labelled as "bullying and inappropriate behaviour by Ms Marshall directed towards [Ms] Richardson and [Ms] McMahon".
  1. [30]
    Relevantly, under cross-examination Mr Hart accepted that he had never received a complaint from Ms McMahon that she was bullied by Ms Marshall.[7] It was also apparent that Mr Hart had not witnessed any alleged bullying behaviour by Ms Marshall directed towards Ms McMahon.
  1. [31]
    Mr Hart gave evidence that he approached Ms Marshall about Ms Richardson's complaint and the fact that Ms Richardson had been not permitted to enter the HR Section to collect her belongings. He said that Ms Marshall responded in a confrontational manner and made derogatory remarks about Ms Richardson.
  1. [32]
    Mr Hart's evidence was that he subsequently received a written complaint from Ms Richardson on 16 December 2019 and 22 January 2020.[8] The written complaint from Ms Richardson complains about the HR Team in general and most predominantly complaining about the conduct of Ms Marshall and to a much lesser extent about Ms McLeod, and to a lesser extent again about Ms McMahon.
  1. [33]
    Relevantly, Ms McMahon was not at the workplace on 13 December 2019 when the alleged incident involving Mr Hart, Mr Gauvin, Ms Richardson and Ms Marshall occurred. Consequently, Ms McMahon did not give any direct evidence with respect to this alleged incident. To that end, it is difficult to comprehend how it is relavant in a cogent and direct way to the matters relevant to Ms McMahon's contention that she was constructively dismissed.
  1. [34]
    Ms Richardson gave evidence[9] of her grievances with Ms Marshall. These grievances included Ms Marshall requesting Ms Richardson to obtain her lunch, she was rude about co-workers and made Ms Richardson feel that her job was not safe at the Council. Ms Richardson gave evidence about the same incident Mr Hart and Mr Gauvin gave evidence about which occurred on 13 December 2019.
  1. [35]
    Ms Richardson's evidence about the incident was as follows:[10]

…

  • I was having a meeting with Jake about getting out of HR due to being very unhappy and didn't feel I could go to Fran due to things that had been said and not feeling safe about my job. Fran found out and came into Jakes [sic] office and said that her and I had a meeting but nothing was booked in our diaries, all she said to me that she wanted to talk to me after lunch but when I came back from my break as usual I couldn't find her, she slammed the door and walked away, I did not want to go have a meeting with her after that as the way she handled it sent my anxiety through the roof and put me into tears, Jake said I could go home for the afternoon and send James to get my bag, James came back and said Fran said I can't have it and that she wants to know what was going on. Jake and James went to see Fran and James came back with my bag and I went home. I did not want to come back to work at all at this point.

…

  1. [36]
    A great deal of Ms Richardson's evidence related to her interactions with Ms Marshall, however relevantly, Ms Richardson did state that she observed Ms Marshall put Ms McMahon down in "a couple of meetings" and used "the F word in general and towards [Ms McMahon]".
  1. [37]
    In addition to the incident involving Ms Richardson, Mr Gauvin gave evidence that he and Ms McMahon talked about the lack of support provided to Ms McMahon in the acting role and the bullying Ms McMahon was subjected to by Ms Marshall. Mr Gauvin gave evidence that Ms McMahon raised concerns about Ms Marshall's conduct including allegedly speaking in an abrasive and rude manner, swearing, finger pointing and getting up in Ms McMahon's personal space. In this regard, Ms Gauvin's evidence was not direct evidence of his observations but, rather, it was evidence of information that was relayed to him from Ms McMahon.
  1. [38]
    Ms McMahon's evidence was critical of Ms Marshal's management style and the manner in which Ms Marshall addressed Ms McMahon. Ms McMahon gave evidence of being offended by the language Ms Marshal used including her use of expletive laden language.
  1. [39]
    Relevantly, Ms McMahon's evidence was that on 22 November 2019, she was asked to see Ms Marshall in her office. Ms McMahon's account of the meeting was that Ms Marshal was critical of Ms McMahon as Ms McMahon had sent correspondence notifying an employee and a union of a redundancy to the wrong union. On Ms McMahon's account Ms Marshall was unhappy with her and for the errors contained in the notification and used expletive laden language to emphasise the level of her unhappiness.
  1. [40]
    Ms McMahon recalls another incident on 2 December 2019 when she was with Ms Marshall who stated words to the effect of:

…that [employee's name] fucking [employee's surname] needed to go and find a fucking hole somewhere and do her [Ms Marshall] a favour and go a fucking die in it.

  1. [41]
    In response to Ms McMahon's evidence regarding a culture of bullying particularly by Ms Marshall, the Council relied on the evidence of Ms Marshall and Ms McLeod to assert that Ms McLeod had been bullied by Ms McMahon. Ms McLeod also gave evidence that Ms McMahon swore in the office and Ms McLeod considered Ms McMahon's swearing to be worse that Ms Marshall's language.
  1. [42]
    Further, Ms McLeod gave evidence that during 2019, Ms McMahon had allegedly bullied her by limiting the work she did, ignoring Ms McLeod when she asked Ms McMahon a question and refusing Ms McLeod's request to attend various training sessions.
  1. [43]
    From the above, it is apparent that the workplace appeared to be awash with interpersonal conflict some of which was directed towards Ms McMahon, whilst Ms McMahon also directed it towards others. Much of the evidence adduced by both parties in this regard was indirect and hearsay evidence surrounding the conduct and culture apparently present at the workplace in the months prior to February 2020. It is not appropriate to conduct a broad ranging inquiry in respect to the alleged culture of bullying at the Council in the context of Ms McMahon's application for reinstatement.
  1. [44]
    However, Ms McMahon did provide direct evidence of the incidents that she alleges occurred on 22 November 2019 and 2 December 2019 and that she contends amounts to conduct which is relevant to my consideration of the matter.
  1. [45]
    With respect to the alleged incident on 22 November 2019, I find that Ms Marshall did respond to Ms McMahon's error in formulating the redundancy notice by using expletive laden language.
  1. [46]
    I also find that Ms McMahon continued to work for the Council with her employment status being unaffected following the incident. There is no evidence that Ms McMahon commenced a formal complaint or commenced any other recognised process to inform the Council of Ms Marshall's conduct or that she was aggrieved by Ms Marshall's conduct. There is no evidence that the Council had knowledge of the conduct at all.
  1. [47]
    Accordingly, I am not satisfied that Ms McMahon has established that Ms Marshall's conduct on 22 November 2020 amounted to a repudiation of the contract of employment on behalf of the Council.
  1. [48]
    With respect to the incident on 2 December 2019, I do not consider that the conduct described by Ms McMahon, that Ms Marshall swore about another employee and allegedly making a distasteful comment in Ms McMahon's presence, is relevant to my consideration. Ms McMahon did not articulate or establish how such comments, if they were made[11], are relevant to her matter. Relevantly, Ms McMahon did not establish how such conduct evinces an intention, on behalf of the Council, not to be bound by the contract of employment.
  1. [49]
    For these reasons, I do not consider that the alleged bullying culture and the alleged bullying by Ms Marshall is conduct relevant to my consideration as to whether the termination of employment occurred at the initiative of the employer.

Failure to respond to a request to reclassify, to adequately train Ms McMahon, and to conduct a performance appraisal 

  1. [50]
    Ms McMahon contends that the Council did not respond to her request to be reclassified in July 2019, that it did not provide her with adequate training, and that it did not perform a performance appraisal in June 2019. 
  1. [51]
    On 11 July 2019, Ms McMahon sent an email to the CEO, Ms Ibardolaza with the subject heading "Request for Review".
  1. [52]
    In the email, after referring to several provisions of the Local Government Industry (Stream A) Award – State 2017 Ms McMahon stated as follows:

"I commenced on a level 7.1 in April 2018 and have completed 15 months consecutively at a level 7.1 in an acting capacity.

I request a review of my current temporary change classification and my pay classification as per the award please."

  1. [53]
    Ms McMahon claims that she received no response to that email from Ms Ibardolaza.
  1. [54]
    Ms McMahon gave no evidence of having followed Ms Ibardolaza up regarding the email correspondence. Ms McMahon's evidence in this regard included the following:[12]

…

Thank you?--- - - - into the role. So first and foremost I was seeking clarification from Sharon because Sharon previously was the director of corporate and financial services and being an accountant in that there may be something worth looking into.

Thank you. So in short, then, you did not raise a grievance and dispute issue under the certified agreement - - -?---Out - - -

- - - when you didn’t get a response?---No. Outside of emailing Sharon, I was - - -

Initially?---Initially - - -

Back in June?--- - - - waiting for a response. Yep.

…

  1. [55]
    Ms Ibardolaza's evidence[13] was that she recalled having a conversation with Ms McMahon regarding the request for the review (in June or July 2019). Ms Ibardolaza's evidence was that she advised Ms McMahon that upon the new Manager, People, Culture and Safety commencing a review would be conducted of the structure classification rules and the role Council would be offering to Ms McMahon.
  1. [56]
    Ms Ibardolaza said that she subsequently spoke to Ms Marshal about this who communicated to her that the restructure and transitions to a new role had been discussed with Ms McMahon. Ms Ibardolaza was operating under the impression that the matter had been resolved.
  1. [57]
    Ms Marshall's evidence was that she met with Ms McMahon and the HR Team to discuss team structure budget and assigning portfolios. Ms Marshall states that at this time she also had a one-on-one conversation with Ms McMahon wherein Ms McMahon advised her that there was an outstanding matter that she had previously raised with Ms Ibardolaza. Ms Marshall states that she recommended that Ms McMahon speak directly with the CEO to address it.
  1. [58]
    There was no evidence that following this conversation Ms McMahon followed up with Ms Ibardolaza to reagitate the matter. It was clear from Ms McMahon's evidence that she was waiting on a response.
  1. [59]
    The failure to respond from the Council, on the evidence, appears to be a failure of communication. In the absence of hearing from Ms McMahon any further about the request, it was reasonable for Ms Ibardolaza to assume the matter had been resolved.
  1. [60]
    Relevantly, Ms McMahon continued to work after her request for the review whilst she was awaiting a response.
  1. [61]
    There is no evidence that Ms Ibardolaza's failure to respond to Ms McMahon regarding the reclassification review evinced an intention by the Council that it no longer intended to be bound by the contract of employment with Ms McMahon.
  1. [62]
    Ms McMahon also contends that the Council failed to provide her with training at the conclusion of a workplace investigation.
  1. [63]
    This contention appears to relate to a workplace investigation that occurred in 2018. Relevantly, Ms McMahon received written correspondence from Ms Ibardolaza on 8 October 2018.[14] That correspondence was a notification of the outcome of an unrelated workplace investigation wherein the Council had substantiated 5 out of 7 allegations that Ms McMahon had engaged in inappropriate workplace behaviour.
  1. [64]
    It appears that the Council determined not to take disciplinary action against Ms McMahon and instead counselled Ms McMahon not to engage in such behaviour again. Relevantly, Ms Ibardolaza offered to provide the following support:

"Consistent with the conclusions reached above, I intend to seek advice as to providing you with an additional ongoing support program to assist your development with a particular focus on interpersonal interaction and leadership. I will discuss options for this with you in the coming weeks."

  1. [65]
    Ms McMahon's evidence was that Ms Ibardolaza did not have a discussion with her about ongoing support.
  1. [66]
    The Council disputes that it did not provide training to Ms McMahon and adduced evidence of Ms McMahon having attended a number of "Lunch n' Learn Manager Series" sessions throughout January, February and March 2019.[15] The topics of the sessions included the following:
  1. The ingredients of effective feedback;
  1. Enhancing your personal influence;
  1. Optimising Team Performance;
  1. Getting the very best from people;
  1. Understanding people and their personalities; and
  1. Facilitating effective meetings.
  1. [67]
    Whilst on the evidence it appears no conversation was had between Ms Ibardolaza and Ms McMahon, I am satisfied that relevant training was provided to Ms McMahon consistent with the intent of the 8 October 2018 correspondence.
  1. [68]
    In any event, Ms McMahon does not establish a connection between the alleged failure to provide training to her and the conduct of the Council that she alleges amounted to constructive dismissal.
  1. [69]
    Ms McMahon further contends that a performance appraisal due to be conducted by 9 June 2019 was not conducted.
  1. [70]
    The evidence adduced by the Council was that the acting Deputy Chief Executive Officer of the Council conducted a performance appraisal with Ms McMahon on 24 March 2019 and the written performance appraisal was signed by Ms McMahon on 20 June 2019.
  1. [71]
    A written copy of that performance appraisal was tendered into evidence.[16]
  1. [72]
    Confirmation of the outcome of the performance appraisal was provided to Ms McMahon and contained in written correspondence from Ms Ibardolaza on behalf of the Council to Ms McMahon dated 18 July 2019.
  1. [73]
    Relevantly, that correspondence states:

"Congratulations on the completion of your recent performance appraisal conducted on 24 March 2019.

As you are already on the top increment of level 4/4 Dependent, your classification will remain unchanged".

  1. [74]
    Accordingly, on the evidence I am satisfied that a performance appraisal was conducted by Council before 29 June 2019.
  1. [75]
    In any event, Ms McMahon has failed to establish the basis upon which she asserts the Council's alleged failure to conduct a performance review is conduct relevant to the alleged constructive dismissal.

Circumstances leading to the termination

  1. [76]
    Ms Marshall commenced a period of annual leave in early December 2019 and returned to the workplace on 29 January 2020.
  1. [77]
    It is uncontentious that in or around late December 2019, the then Mayor received a complaint from a member of the public about a conversation that was had between that person and Ms McMahon whilst at the municipal pool which was the location of Ms McMahon's secondary employment with the Council.
  1. [78]
    The member of the public requested that someone from the Council call her to formalise the complaint, however, she was unavailable to be interviewed about the complaint until or about 17 January 2020.
  1. [79]
    It was arranged by Ms Ibardolaza that Ms Marshall was to speak to the member of the public and take a statement from her. 
  1. [80]
    Ms Ibardolaza considered she may hold a conflict of interest in relation to the complaint so she delegated her authority to prepare and sign the correspondence giving notice of the complaint and suspension of employment to Ms Marshall.
  1. [81]
    There was an initial contention raised by Ms McMahon arguing that such a delegation was not lawful. However, this contention was abandoned by Ms McMahon when she conceded that the correspondence did not amount to disciplinary action.
  1. [82]
    Ms Marshall met with Ms McMahon on the morning of her return to the workplace from leave. Ms Marshall did not advise Ms McMahon of the purpose of the meeting. During the course of the meeting Ms Marshall handed Ms McMahon a letter, which constitutes a written notice of complaint and suspension of employment ('the notice'). Given that the contents of the notice and the inferences to be drawn from it are in dispute, it is convenient to set the notice out in full as follows:

…

Dear Clair

Re: Notice of complaint and suspension of employment

This letter is to inform you that a complaint of inappropriate behaviour, breach of confidentiality. and possible corrupt conduct. Has been levelled against you.

Full particulars are still being obtained. however. the allegation known at this time is that about 4pm on Sunday, 8 September 2019 at the Mount Isa City Council Pool you had a discussion with Ms [redacted] ["the complainant"] [In the presence of another individual whose name is withheld at this time] where it is alleged:

  • you said to [redacted][17] ["the complainant"] words to the effect that:
  • you had been demoted of work (returned to your "substantive role") and  had to take a $20.000 pay cut with no discussion or reason given by Mount Isa City Council;
  • "They (Mount Isa City Council) should be careful to piss off the person who knows where all the skeletons are buried";
  • your husband works with Danielle Slade's husband (Danielle Slade is a possible mayoral candidate} and "the things I could tell them (about Council). Joyce would not have a hope in hell for getting in next year'';
  • you see Danielle Slade often and that you were meeting them Danielle Slade and her husband) soon at your husband's work Christmas party
  • [redacted] ["the complainant"] said to you words to the effect that:
  • "Whoa. If local government is anything like state government, I'm certain that you would have a non-disclosure or confidentiality agreement in your contract. That you would legally not be able to pass information on. This sort of stuff could be used against you. If you worked for me that would be a reason to hold a code of conduct discussion and potential termination";
  • you said to [redacted] ["the complainant"] words to the effect that:
  • "They can try. I've got a lot on an of them. They would just need to try it."

Given the seriousness of the complaint, Mount Isa City Council (Council) has decided to conduct a formal investigation into the matter. No findings or decisions have been made about any matter at this stage.

Council has engaged an external investigator. Troy Wild of Peak Services Legal to conduct an Impartial investigation into the complaint.

The investigation will involve ["the complainant"], yourself and any witnesses being interviewed separately by Mr Wild.

You are directed to attend a meeting with the investigator on Thursday, 6th February 2020 at 10:00am, at Meeting Room No. 1 at Councils' main office, Weststreet, Mount Isa. You are entitled to bring a support person or representative with you to the interview.  Should you wish to do so please provide  the undersigned with details of  the  proposed support person so we  can   ensure  there is no conflict of interest.

Mr. Wild will meet with you, outline the investigation process, and ask you to respond to the allegation. You will also be given the opportunity to consider the allegation further, and any other matter that may arise during the investigation, and provide an additional response, in writing, within five business days after the interview.

The investigation is being conducted on a confidential basis. However, it will be necessary to disclose the investigation to staff and/or other relevant parties who are required to be interviewed as part of the process, and relevant HR/Management staff.

You should be aware that it is unlawful to victimise a person who is involved in an investigation because of their involvement. This means you must not victimise or retaliate against any other participant in the Investigation. Similarly, you should not be victimised as a result of the investigation. If you feel you are being victimised, please contact Mr. Wild or myself, Fran Marshall, Manager People & Culture. Any act of victimisation will be dealt with seriously, including disciplinary action being taken.

Once the relevant information has been collected, Mr. Wild will consider the evidence, make findings on the allegations and provide a written investigation report to Council.

Council will consider the report and then determine what further action, if any, should be token. Such action may include no action being taken, counselling or formal disciplinary action which could result in a warning, demotion, deduction of wages or dismissal.

Your current work

Given the seriousness of the complaint, Council has decided to suspend you from all of your employment related duties on full pay, effective immediately, pending an outcome to this process. This includes suspension from both your substantive and secondary employment (Pool Kiosk Attendant) at Council.

Until further notice, you are directed not to report for work, attend the office or pool, or have any contact with Council staff, contractors or clients, except for myself. You are also directed not to access work systems or databases (of any kind), either in the office, remotely or by any other means. Arrangements are being made to temporarily suspend your access to Council's work systems in that regard.

If you require access to any work systems or the office in order to provide a response, please contact me to discuss this.

This arrangement will not affect your employment-related entitlements, and your employment will not be prejudiced by the suspension. You will be remunerated as normal and for all purposes this will be treated as normal paid working time.

Communications

You will need to remain contactable by us during your normal working hours subject to any usual exceptions e.g. on account of personal illness (and in those circumstances the usual processes applicable to the taking of leave should be followed). To the extent that you need or want to speak with anyone at work you should contact me directly.

If you are contacted by any Council employee, customer or contractor who want to know why you are absent from work, please tell them that it is for personal reasons that you do not wish to discuss (or to that effect). You can direct all such queries to me.

I will advise your team members that for personal reasons you will be on leave during this time.

Confidentiality

You are directed to maintain confidentiality throughout this process. To be clear. you are not permitted to discuss this matter with anyone in the workplace unless authorised by Mr. Wild or Fran Marshall. Manager, People & Culture. Should you wish to discuss this matter with a professional advisor or a support person. external to the organisation, you may do so however you are to instruct the advisor or support person to maintain confidentiality. Should you, your advisor or your support person fail to maintain confidentiality Council may take disciplinary adion against you, up to and including the termination of your employment.

All of the above instructions ore important and you need to do your best to follow them. Failure to do so could expose you to disciplinary action. Further, confidentiality in relation to this matter is in everyone's interests, including yours.

Final matters

I would like to take this opportunity to remind you that Council provides all staff with access to an employee assistance program (EAP). which is a free confidential counselling service. I would encourage you to make use of the service should you feel it necessary. The EAP provider Centacare, can be contacted on [redacted].  A brochure is enclosed for your information.

…

  1. [83]
    Ms McMahon contends that when Ms Marshall advised her that she was being suspended on pay that Ms McMahon asked to have Mr Wagner as a support person.
  1. [84]
    Ms McMahon states that Ms Marshall responded by saying "no", "think of someone else", "I can check with Mr Wild and get back to you."
  1. [85]
    Ms McMahon contends that it was "seven days without a response from Mr Troy Wild or Fran Marshall as to whether Mr Stephen Wagner could in fact be my support person, which was 48 hours prior to the requirement to attend an investigation interview."
  1. [86]
    Ms Marshall's evidence regarding Ms McMahon's request for a support person was as follows:[18]

In relation to your evidence about the – Ms McMahon’s query for a support person, what did you understand her request for a – well, in what circumstances was she requesting a support person?---When I stepped through the letter with her, because it’s – human nature is that you get quite a shock when you get that type of letter. I sat us in my office and I calmly went through the letter and talked to her about that, instead of just handing it to her. When it got to the support letter – sorry, the  paragraph that said she would be – we would ask her to bring a support person if she chose, she said to me words to the effect that, “Who can I bring?” And because the words in that letter said that we, because of other matters on foot, that it was important to understand the support person that you were bringing, she said, “The only person I can bring and I’ve got is Steve Wagner.” And I said words like, “So that’s your choice of support person?” She said, “Yes.” I’ve said, “You don’t have any other or a union rep?” She said, “No.” And I said, “Okay. Don’t worry. I will go through, make sure that Steve’s – can come. I just need to run it past our Peak Services legal branch because of the situation that there are other matters on foot, and I’ll come back to you.” That was my honest reply to her at that time, not that she couldn’t have one.

  1. [87]
    Ms Marshall's evidence about the nature of the meeting on 27 January 2020 and whether Ms McMahon was offered as support person for that meeting was as follows:[19]

All right. And was she offered a support person for the meeting with you on the 29th of January?---No, because I was handing her a letter to commence a notification, if you like, of a procedure, and I took the step of inviting her into my office so that I protected her and – from the workplace and gave her an opportunity to read the  letter. We stepped through it to be able to then – instead of handing her the letter, I did it that way.

  1. [88]
    Ms McMahon spoke to her union who subsequently contacted Ms Marshall by telephone and email. Relevantly, email correspondence was sent on Friday 31 January 2020 at 11.52am from Ms McMahon's union, The Services Union, to Ms Marshall which was in the following terms:[20]

…

As discussed, The Services Union represents our member Ms Clair McMahon.

Ms McMahon is seeking the permission of Council to attend the Pool for her daughters swimming lesson on Monday(s) from 4.50pm-5.30pm.

Further, the Union seeks confirmation that Ms McMahons suspension payments will include the forecasted shifts at the pool. It is my understanding that these shifts have been regular and systematic for some time.

…

  1. [89]
    Ms Marshall states that she sought legal advice as to whether Mr Wagner was an appropriate support person in circumstances where Mr Wagner was involved in a separate workplace investigation and advice with respect to the requests made in The Service's Union correspondence.
  1. [90]
    Ms Marshall states that she received the advice and was in the process of drafting a response to Ms McMahon on the morning of Tuesday 4 February 2020 when she received Ms McMahon's resignation email in her inbox at 8.28am.
  1. [91]
    By email correspondence dated 4 February 2020, Ms Marshall sent an email in reply purportedly accepting Ms McMahon's resignation as follows:

Dear Clair,

I am in receipt of your email resigning from your position as HR Advisor and your secondary employment as Casual Kiosk Attendant with Mount Isa City Council, dated today, 4 February 2020 (email received at 8:29am).

In accepting your resignation, I draw your attention to your employment terms regarding the ongoing requirement to maintain confidentiality of Council matters during the course of your tenure and post-employment with Council.

With regards to the complaint alleged against you, the matter is now closed.

With regards to the treatment of your termination pay, you will be paid your normal pay (less leave already taken for the period) today and I will attempt to process your final pay, inclusive of your notice period in lieu, plus entitlements as soon as possible.

Would you please return all Council property to myself as soon as possible please for this final pay to be processed.

…

  1. [92]
    Ms McMahon alleges the following failings in Council's conduct:
  1. Council's failure to provide prior notice to attend the meeting on 29 January 2020;
  2. Council's failure to provide the opportunity of a support person either prior to or at the meeting on 29 January 2020;
  3. Ms Marshall's refusal of Ms McMahon's request for a support person at the meeting on 29 January 2020;
  4. Council's failure to provide full particulars of the complaint; and
  5. Council's failure to permit Mr Wagner to be Ms McMahon's support person for the interview on 6 February 2020. 
  1. [93]
    Ms McMahon also expressed a concern that Ms Marshall said to her that she would be "overseeing the investigation".
  1. [94]
    Ms McMahon submitted that the conduct of the Council had the following impact on her:

I feel that my employment was prejudiced by the suspension, I was not paid wages for my employment at the pool despite the shifts being regular, continuous, and consistent on a weekly basis. I was advised I could not have my choice of support person without due cause. I was not allowed to attend the poor for personal reasons without due course, I had a change in pay without due course. I waited 7 days with no response in a support person being advised, I waited 5 days with no response to being able to attend the poor for personal reasons, I waited 5 days with no response to being paid ordinary wages for my primary role in HR and my secondary role at the pool.

  1. [95]
    From the above, it is apparent that Ms McMahon had the perception, at least, that the Council, in its conduct associated with and connected to the issuing of the notice, acted unfairly towards her and in a manner that prejudiced her employment. Whilst it is accepted that Ms McMahon may have held such a perception, what is required is an objective analysis of the Council's conduct.
  2. [96]
    Relevantly, after receiving a complaint from a member of the public about Ms McMahon, the council took steps to interview the member of the public when they became available.
  1. [97]
    I consider that it was appropriate for the Council to take such steps once it had the knowledge a complaint had been made. On the evidence before the Commission, the member of the public had been unavailable to be interviewed prior to 17 January 2020. As at 17 January 2020, Ms McMahon was on annual leave. On the day Ms McMahon returned from leave the Council gave her notice of the complaint and the allegations that had arisen from the complaint. I consider it was appropriate and reasonable for the Council to not interrupt Ms McMahon's annual leave with information relating to the complaint.
  1. [98]
    On this basis, I do not consider that there was any delay on the Council's part in actioning the matter and bringing the allegations to Ms McMahon's attention.
  1. [99]
    Ms McMahon also makes complaints to the effect that she was denied procedural fairness insofar as she was not provided notice of the meeting on 29 January 2020 and full particulars of the allegations and supporting material were not provided to her in the notice.
  1. [100]
    It was apparent that Ms McMahon initially contended that the meeting on 29 January 2020 was a disciplinary meeting and, consequently, Ms McMahon argued that she should have been provided notice of the meeting and an opportunity to bring a support person. Relevantly, Ms McMahon contended that the meeting was a disciplinary meeting as she was suspended. However, the purpose of the meeting was to provide Ms McMahon a copy of the notice of the complaint and the suspension of employment to Ms McMahon in person. The council was under no obligation to meet with Ms McMahon in person to provide her with the notice. However, given the length of Ms McMahon's service and the senior role she held in the Council I consider that it was reasonable and appropriate for the meeting to occur in person.
  1. [101]
    During cross-examination, Ms McMahon accepted that sending a letter outlining allegations and giving notice of suspension and subsequently conducting a workplace investigation did not amount to disciplinary action.[21]Given Ms McMahon's experience in performing senior roles in human resources at the Council such a concession was reasonable.
  1. [102]
    Consequently, there was no requirement for the Council to provide notice of the meeting or to provide her with an opportunity to obtain a support person as the meeting was not disciplinary action. I do not consider that the Council's conduct in determining to provide the notice in person to Ms McMahon is conduct that evinces an intention that the Council sought to end the employment.
  1. [103]
    I consider the notice provided Ms McMahon with appropriate information with respect to the complaint. Ms McMahon was advised that the full allegations would be put to her at a later date and she would be provided with an opportunity to respond to them in the interview and in writing.
  1. [104]
    Further, Ms McMahon asserts that the letter of suspension stated that she was to have "no contact with any customer of council/services which included every member of the Community and the EAP Counselling Service Centacare". Ms McMahon further stated that "I was instructed to lie in relation to my absence. I was explicitly denied a support person of whom was employed by Council. Given my best friends and closest advisors were all employed by Council, the respondent withheld and denied access to my support network". The terms of the written notice do not support Ms McMahon's contentions in this regard.
  1. [105]
    Firstly, the notice did not state that Ms McMahon was to have "no contact with any customer of council/services". Rather, the notice directed Ms McMahon to keep the matter confidential and to not discuss it with anyone from the workplace without permission.
  1. [106]
    The notice also issued directions with respect to communication. This direction was reasonable and appropriate in the circumstances.
  1. [107]
    A direction by an employer to keep the commencement and terms of an investigation of this nature confidential is not inappropriate or unreasonable. There are benefits to both an employee and employer and to the integrity of the investigation if matters of this nature remain confidential and do not become part of discussions and gossip within the workplace.
  1. [108]
    Further, the terms of the notice are clear. The Council invited Ms McMahon to use the services of the EAP and did not direct her to lie as she alleges.
  1. [109]
    I consider the directions regarding communication and maintaining confidentiality issued by the Council was appropriate and reasonable and did not evince an intention that the Council sought to end the employment relationship.
  1. [110]
    Ms McMahon further states that "it was 7 days respectively with no response in relation to approval of a support person request. It was 5 days respectively with no response in relation to accessing the pool for personal use and in connection with my secondary casual employment at the Mount Isa City Council Pool."
  1. [111]
    Ms McMahon's calculations in terms of the number of days she had been waiting for a response are inaccurate. The meeting with Ms Marshall during which Ms McMahon requested Mr Wagner to be her support person at the interview on 6 February 2020 occurred on Wednesday 27 January 2020. The employment was terminated at 8.28am on Tuesday 4 February 2020. Accordingly, that amounts to five days (or three business days) since the request was made. Further, Ms McMahon's union contacted Ms Marshall by email on Friday 29 February 2020 relating to the inquiry to her secondary employment and access to the pool. Accordingly, that amounts to three days (or one business day) since the request was made.
  1. [112]
    Ms McMahon was advised during the course of the meeting that Ms Marshall would need to seek advice as to whether it was appropriate for Mr Wagner to be her support person in the interview due to his involvement in another unrelated matter. Mc McMahon accordingly was on notice that such an inquiry was being undertaken by the Council. Further the written notice confirmed that Ms McMahon was entitled to have a support person in attendance as long as they held no conflict of interest.
  1. [113]
    The Council had not indicated that, contrary to the written notice, it was going to deny Ms McMahon the opportunity of having a support person during the interview.
  1. [114]
    Similarly, the Council had not indicated that it would fail to respond to Ms McMahon's union's inquiry of 29 January 2020.
  1. [115]
    I do not consider that the time period that lapsed between Ms McMahon's request and her union's request amounts to conduct that evinces an intention, on behalf of the Council, that it sought to end the employment contract.
  1. [116]
    During the course of proceedings, Ms McMahon also variously raised allegations that she felt she would be denied procedural fairness as Ms Marshall was involved in the investigation and, further, that the Council only ever mentioned the possibility of her employment being terminated in the context of the allegations being substantiated.
  1. [117]
    With respect to Ms Marshall's involvement, the written notice advised Ms McMahon that Mr Wild had been engaged as an external investigator to conduct an "impartial investigation".
  1. [118]
    It was outlined that it was Mr Wild's role, inter alia, once the relevant information had been collected, to consider the evidence, make findings on the allegations and provide a written investigation report to Council.
  1. [119]
    Other than being the nominated contact person, Ms Marshall had no role to play in the conduct of the investigation. Accordingly, I do not accept Ms McMahon's contention that she would be denied procedural fairness due to Ms Marshall's involvement in the process.
  1. [120]
    Similarly, the written notice places Ms McMahon on notice that, following an investigation of the matter, and consideration by the Council of the investigation, the Council would at that stage consider what further action, if any, should be taken. The notice then states that the type of action the might be taken included, no action being taken, counselling on formal disciplinary action which could result in a warning, demotion, deduction of wages or dismissal.
  1. [121]
    From the above, there is no basis for Ms McMahon to have held the perception that the only outcome of the process, should the allegation have been substantiated, would have been the termination of her employment. Accordingly, it is not necessary for me to consider, in the context of this allegation, whether the conduct of the Council amounted to constructive dismissal.
  1. [122]
    For completeness, it is also noted that Ms McMahon raised allegations with respect to the calculation of the termination payment. Given that this occurred after the termination of employment, it is unnecessary for me to consider whether such conduct amounted to a constructive dismissal.

Conclusion

  1. [123]
    In objective terms, I find that there was no impediment to Ms McMahon being able to continue with her employment at Council. Ms McMahon still had avenues open to her to participate in the investigation process and to provide evidence in support of her position.
  1. [124]
    It follows that I do not consider that Ms McMahon was constructively dismissed. Relevantly, I do not find that the Council engaged in conduct that evinced an intention that it no longer wished to be bound to the contract of employment.

Order

  1. [125]
    Accordingly, I make the following order:

The application in proceedings TD/2020/21 is dismissed.

Footnotes

[1]Exhibit 1 – Bundle of 18 Documents. 

[2][2016] QIRC 34 [12], [13], [18].

[3]Although Ms McMahon continued to be paid the salary for the acting manager role for a transition period ending in November 2019.

[4]T1-47, ll 11 -30.

[5]Applicant's Statement of Facts and Contentions at [1].

[6]Exhibit 3 – Affidavit of Jake Hart dated 11 May 2020.

[7]T1 – 86, ll 1 – 4.

[8]Exhibit 1 – Bundle of 18 Documents

[9]Exhibit 2 – Affidavit of Samantha Louise Richardson dated 23 July 2020.

[10]Ibid.

[11]Ms Marshall denied making such a statement.

[12]T1-49, l 43 – T1-50, l 8.

[13]Exhibit 6 – Outline of evidence of Ms Sharon Ibardolaza.

[14]Exhibit 1 – Bundle of 18 Documents.

[15]Exhibit 1 – Bundle of 18 Documents.

[16]Ibid. 

[17]The original notice included the name of the complainant. These reasons have redacted the complainant's name and substituted it with "the complainant".

[18]T2 – 49, ll 15 – 31.

[19]T2 – 49, ll 37 – 42.

[20]Affidavit of Frances Julia Marshall dated 28 February 2020, Exhibit C.

[21]T1 – 37, ll 36 – 47.

Close

Editorial Notes

  • Published Case Name:

    McMahon v Mount Isa City Council

  • Shortened Case Name:

    McMahon v Mount Isa City Council

  • MNC:

    [2023] QIRC 346

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    30 Nov 2023

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
Sovereign House Security Services Ltd v Savage [1989] IRLR 115
1 citation
Jump To
Cite 1 - [1989] IRLR 115
Spencer v Dowling and Anor [1997] 2 VR 127
1 citation
Jump To
Cite 1 - [1997] 2 VR 127
State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 34
2 citations
Jump To
Cite 1 - [2016] QIRC 34
Cite 2 - [2016] QIRC 34

Cases Citing

Case NameFull CitationFrequency
Pegg v Gumdale State School P&C Association [2024] QIRC 2952 citations
1

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