Mutonhori v Mount Isa City Council
[2024] QIRC 41
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- Unreported Judgment
- Mutonhori v Mount Isa City Council[2024] QIRC 41
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Mutonhori v Mount Isa City Council[2024] QIRC 41
Mutonhori v Mount Isa City Council[2024] QIRC 41
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mutonhori v Mount Isa City Council [2024] QIRC 41 |
PARTIES: | Mutonhori, Simon (Applicant) v Mount Isa City Council (Respondent) |
CASE NOS: | TD/2023/138 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 15 February 2024 |
MEMBER: | Industrial Commissioner Power |
HEARD AT: | On the papers |
ORDER: | The application is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – INTERLOCUTORY APPLICATION – where the applicant was employed by the respondent until his termination in 2023 – where the applicant seeks an interlocutory order directing his interim reinstatement pending the determination of the substantive matter – where the applicant alleges unfair dismissal – whether there is a serious question to be tried – whether the balance of convenience favours grant of interlocutory relief – application dismissed. |
LEGISLATION AND OTHER INSTRUMENTS: | Fair Work Act 2009 (Cth) s 332 Industrial Relations Act 2016 (Qld) ss 120, 281, 314, 315, 316, 463, 541 Local Government Act 2009 (Qld) Local Government Regulation 2012 (Qld) ss 279, 283 Mount Isa City Certified Agreement 2018 Public Sector Act 2022 (Qld) s 315 Queensland Local Government Industry (Stream A) Award Queensland Local Government Industry (Stream B) Award Queensland Local Government Industry (Stream C) Award |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 Australian Broadcasting Corporation v O'Neill [2006] HCA 46 Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 617 J v L & A Services Pty Ltd (No 2) [1993] QCA 12 |
Reasons for Decision
Introduction
- [1]On 21 December 2023, Mr Simon Mutonhori ('the Applicant') filed an application for reinstatement following the termination of his employment by the Mt Isa City Council ('the Respondent').
- [2]On 10 January 2024, the Applicant filed an application in existing proceedings seeking an interlocutory order directing that his dismissal be 'set aside' and that he be reinstated on an interim basis pending the determination of the substantive matter.
Application in existing proceedings
- [3]The Application outlined the following details of the decision sought –
I am seeking an urgent interlocutory [sic] decision to set aside the termination of my employment until a substantive hearing is held and a decision made by the Commission. The reasons for this are as follows:
- My job comes with substantive benefits such that my life here depends on those benefits (House, car and phone).
- It is not possible for me to replace all these benefits at a short notice and without knowing the outcome of my application for reinstatement.
- I am an Immigrant with no family or friends to go to in Mount Isa.
- Mount Isa is a remote town with no rental properties, no public transport and a harsh climate that makes walking into town to do daily errands is [sic] impossible.
- My work benefits have a quantified monitory [sic] value such that it is easy to quantify in dollar figure my usage on a daily basis if I have to pay back Council after my application for reinstatement has been finalised.
- I humbly submit and believe that I have high chance of success in my substantive application because, in its handling of the termination, council failed to comply with its own internal Personal Grievance Policy, Anti-Discrimination and Equal Employment Opportunity Policy, Anti-Bullying Policy and Performance and Misconduct Policy.
- Most importantly, I believe Council failed to comply with s 283 of the Local Government Regulation 2012 and contravened s 289 of the Industrial Relations Act 2016 ('the Act')
- These fundamental failures to follow due process contravenen [sic] principles of natural justice and will render this termination invalid as will be demonstrated in the submissions for the substantive hearing.
- The allegations themselves are very weak, speculative, subject and lacks [sic] supporting evidence and lacks subatatnce [sic].
For the reason state above, in good equity and conciense [sic] I believe my request is reasonable and should be granted, but I understand it is at the discretion of the Commissioner.
As a follow up to my earlier application [sic], I am also seeking a permanent name suppression to protect my professional integrity. Reasons for this request were outlined in my eralier [sic] application.
Submissions of the parties
- [4]The Commission issued a Directions Order on 11 January 2024 directing the parties to provide submissions regarding the application in existing proceedings.
Applicant's submissions
- [5]The Appellant's submissions can be broadly summarised as follows –
- The suspension and dismissal were procedurally and substantively defective, unfair, and unjustified; and
- The termination has imposed hardships due to the Applicant's unique personal circumstances.
- [6]The Applicant submitted that he sought a declaration pursuant to s 463(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), that the Respondent failed to comply with the provisions of s 279 and 283 of the Local Government Regulation 2012, and that therefore the purported dismissal is invalid. The Applicant submits that in the alternative he is seeking an interim reinstatement on the basis that the dismissal was substantively unfair and unjustified because it was based on unsubstantiated, unfounded, frivolous, vexatious, baseless, and meritless retaliatory allegations.
Respondent's submissions
- [7]The Respondent's submissions can be broadly summarised as follows –
- The Applicant is prohibited from bringing an application for reinstatement pursuant to s 120(f)(iii) of the IR Act;
- The decision to terminate the Applicant's employment was consistent with the CEO's rights and obligations under the Local Government Act 2009; and
- The Applicant's conduct justified termination and at all times he was extended procedural fairness.
Consideration
- [8]The Applicant has not identified the statutory power relied upon to issue an interlocutory order reinstating him to his former position with the Respondent. The reference to the issuing of a declaration that the termination was invalid, which appears in the Applicant' submissions but not in the application in existing proceedings, requires a hearing of the substantive application.
- [9]Section 314 of the IR Act provides for potential interim reinstatement in a general protections application, however I note that s 281 states that this part of the Act does not apply to unfair dismissals. I am not persuaded that the Commission has the power to make an order for interim reinstatement pending the determination of an unfair dismissal application, however, an argument may be made that s 541 provides such a power. Regardless, it is not necessary to determine whether the Commission has the power to make an interim order for reinstatement in an unfair dismissal application in circumstances where I do not consider that such an order should be made. This decision has been made for the reasons outlined below after considering the usual injunctive considerations of the existence of a serious question to be tried and the balance of convenience.
Serious question to be tried
- [10]Consideration is required of whether the Applicant has demonstrated a prima facie case or a serious question to be tried on the evidence as it currently stands.
- [11]
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications 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 which the plaintiff 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 made by Kitto J in the course of argument. With reference to the 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."[2]
- [12]Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust, or unreasonable. Section 315(f)(iii) provides that employees to whom s 316 does not apply include the following –
- an employee
- to whom an applicable industrial instrument does not apply; and
- who is not a public service officer employed on tenure under the Public Sector Act 2022; and
- whose annual wages immediately before the dismissal are equal to or more than the high income threshold under the Commonwealth Fair Work Act, section 333;
- [13]The Respondent has raised a jurisdictional objection that Applicant is prohibited from bringing the substantive application pursuant to s 315(3)(f)(iii) of the IR Act.
- [14]The Respondent's evidence is that in accordance with the Applicant's contract of employment dated 6 July 2023, the Applicant was paid $153,000 per annum and was provided with accommodation to the agreed value of $16,000 per annum and a motor vehicle to the agreed value of $15,000 per annum.
- [15]The high-income threshold for the year 1 July 2023-30 June 2024 is $167,500 and includes wages and agreed money value of non-monetary benefits as outlined in s 332 of the Fair Work Act 2009 (Cth). The Respondent submits that the Applicant's total income was $184,000 per annum, which exceeded the high-income threshold.
- [16]The jurisdictional issue raised by the Respondent has not been disputed by the Applicant.
- [17]In consideration of s 315(f)(i) of the IR Act, the Respondent submits that the Applicant is not covered by the Queensland Local Government Industry Awards (Stream A, B or C) or the Mount Isa City Certified Agreement 2018. Clause 3 of the Applicant's Contract of Employment confirms this arrangement.
- [18]As an employee of Mt Isa City Council, the Applicant was not a public service officer employed on tenure under the Public Sector Act 2022 pursuant to s 315(f)(ii) of the IR Act.
- [19]On the basis that all of the elements of s 315(f) appear to apply to the Appellant, s 316 operates as a jurisdictional bar to the Applicant seeking relief through the unfair dismissal provisions of the IR Act.
- [20]It is not necessary to examine the substantive submissions regarding the termination of the Applicant's employment when a likely jurisdictional barrier exists.
- [21]I cannot be satisfied that there is a serious question to be tried in circumstances where the jurisdictional hurdle has not been refuted by the Applicant.
The balance of convenience
- [22]The Applicant submits that he will suffer significant prejudice if interim reinstatement is not ordered on the basis that his housing, vehicle, and phone are linked to his employment. The Appellant contends that this will inhibit his ability to participate in the legal process relating to his substantive application and will cause him hardship as a result of his isolation as an immigrant to Australia and Mt Isa.
- [23]The Respondent's submissions do not refer to the particular prejudice they will suffer if an interim reinstatement is granted. It can be inferred however that the Respondent will suffer prejudice if the Applicant is reinstated into the workplace on an interim basis as it will likely prevent the hiring of a new employee to fill the role of Manager, Environment, Regulatory Services and Land Use.
- [24]I do not consider that the balance of convenience favours either party in this application.
Suppression
- [25]The Applicant outlined in his submissions that he sought 'permanent name suppression to protect [his] professional reputation and integrity'.
- [26]In Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),[3] Deputy President Hartigan summarised the principles to be considered when exercising the Commission's discretion for suppression:
[23] The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2), ('J v L & A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
- Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
- The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
- The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
- No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
- Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
- A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
- An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
- ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
- [24]In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
- [40]The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
- [41]The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
- [42]However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
- [43]The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.
…
- [44]It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
- [45]In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice.
- [46]As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.
- [27]In support of his request for an order suppressing his name, the Applicant submits that he had already experienced prejudice and stereotyping because of his ethnic origin and that publication of his name will worsen that situation.
- [28]As noted by Vice President O'Connor in Aurizon at [24],[4] the starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice: 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. There are particular circumstances in which suppression of names may be appropriate, however, as determined in J v L & A Services,[5] suppression should not occur to save a party embarrassment, distress, financial harm, or other collateral disadvantage.
- [29]The Applicant's submissions amount to an argument that publication of his name may potentially result in collateral disadvantage to his professional reputation and integrity. That is not a sufficiently compelling argument to outweigh the principles of open justice.
Conclusion
- [30]After considering the material before the Commission, it is not clear that the balance of convenience favours either party. In addition, it cannot be said that on the current state of the evidence that there is a serious question to be tried. The existence of a clear jurisdictional barrier to proceeding weighs heavily against the granting of the application.
- [31]For the reasons outlined above, the application for interim reinstatement is dismissed.
Order
- The application in existing proceedings is dismissed.