Bentzen v Hinchinbrook Shire Council

In Bentzen v Hinchinbrook Shire Council, the applicant, Ms Bentzen, sought a declaration that her dismissal was invalid due to non-compliance with statutory requirements and other relief. The respondent, the Hinchinbrook Shire Council, dismissed Ms Bentzen, who was employed as the Executive Manager of Development Planning and Environmental Services, on the basis of misconduct. Ms Bentzen applied to the Commission for reinstatement and declaratory relief, asserting that the dismissal was invalid because it did not comply with the mandatory requirements of section 283(1) of the Local Government Regulation 2012. The Council argued that the dismissal was valid and that Ms Bentzen's claims for other relief should be dismissed. The court was required to decide whether the dismissal was invalid due to non-compliance with the statutory requirements, and if so, whether Ms Bentzen was entitled to the other relief sought.

The court found that Ms Bentzen's dismissal was invalid due to non-compliance with section 283(1) of the Local Government Regulation 2012. The court held that the purpose of the procedures in section 283(1) of the LG Regulation was to ensure that natural justice was observed prior to disciplinary action being taken against a local government employee. The court found that the Council's present position was that, upon Ms Bentzen's effective reinstatement and the Council subsequently complying with section 283(1) of the LG Regulation, Ms Bentzen would again be dismissed. The court held that it would not be acting in good conscience and would be ignoring the substantial merits of the case if it was not to issue a declaration that Ms Bentzen's dismissal was invalid. The court also held that the claim that section 289 of the Industrial Relations Act 2016 was contravened was misconceived as Ms Bentzen did not identify the workplace right relied upon, such that there was no misrepresentation of any kind.

Pursuant to section 463(1) of the Industrial Relations Act 2016, it is declared that the purported dismissal of the Applicant, as notified to the Applicant by letter dated 22 August 2019, was invalid. The Applicant is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, and any further affidavit material, about the matters identified in paragraph [190] of the reasons for decision, by 4.00pm on Friday, 21 May 2021. The Respondent is to file and serve submissions, of no more than five (5) pages, line and a-half spaced, 12-point font size and with numbered paragraphs and pages, in response to the Applicant's submissions referred to in Order 2, and any further affidavit material, by 4.00pm on Friday, 28 May 2021. Unless otherwise ordered, the matters identified in paragraph [190] of the reasons for decision will be determined on the papers.