| CITATION: | Carey v Cairns Regional Council [2011] QCAT 26 |
| PARTIES: | David Carey (Complainant) |
| v | |
| Cairns Regional Council (First Respondent) David Egan (Second Respondent) George Pitt (Third Respondent) William Bellero (Fourth Respondent) Joseph Scizcca (Fifth Respondent) | |
| APPLICATION NUMBER: | ADC 032-09 (was HEA 09/41) |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATES: | 1-4 November 2010 |
| DECISION OF: | P Roney SC, Member |
| DELIVERED ON: | 21 January 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The first respondent shall pay to the complainant compensation in the amount of $368,033.06. The complaint against the second, third, fourth and fifth respondents is dismissed. |
| CATCHWORDS: | Discrimination on the grounds of political belief or activity; discrimination on the grounds of association with local authority, politicians or environmental activists, or on the basis of political belief or activity; political retribution by termination of employment of political opponents’ supporters, immunity from liability of a Councillor s.240 Local Government Act 2009, s.102 Anti-Discrimination Act 1991, extent of operation of immunity. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Henry, Senior Counsel, instructed by Wettenhall Silva Solicitors |
| RESPONDENTS: | Mr R Perry, Senior Counsel, instructed by Thynne & McCartney |
INDEX .................................................................................................................... Paragraph
Introduction........................................................................................................................... [1]
“Limitation” in the Complaint to the ADCQ........................................................................... [8]
The Conduct of the Respondents’ Case............................................................................ [12]
The uncontroversial facts................................................................................................... [17]
The Complainant’s Case on the Evidence......................................................................... [33]
The Relationship between Roisin Allen and the Respondents.......................................... [46]
The Relationship between the Complainant and the Mayor Berwick ............................... [54]
Meaning of discrimination on the basis of political belief or activity.................................. [65]
The effects of Section 240 of the Local Government Act and Section 102
of the Anti-Discrimination Act 1991.................................................................................... [78]
Assessment of Compensation........................................................................................... [88]
Introduction
On 7 November 2005, the complainant David Carey was employed pursuant to a written contract of employment as the General Manager, Community and Corporate Services with the Douglas Shire Council in Far North Queensland. In these reasons I shall refer to the Douglas Shire Council as “the Council”. On 15 March 2008, by legislative enactment, both the Council, and its geographically adjacent local authority, the Cairns City Council ceased to exist, and a new local authority, the Cairns Regional Council, which is the first respondent here, commenced operation. By the terms of the Local Government Reform Implementation Regulation 2008, the Cairns Regional Council assumed responsibilities for the actions of both of its merging predecessors, including the Council. Hence, the first respondent is sued, not by reason of any particular activity of its own, but by reason of the alleged conduct of the Council, and each of the other respondents as its guiding mind and will, each of whom was a Councillor with the Council until it ceased to exist on 15 March 2008.
In the dying days of the Council’s existence, each of the second, third, fourth and fifth respondents acted to cause the termination of the complainant’s employment with the Council. That was achieved by a motion put to the Council on 4 March 2008 by the second respondent and seconded by the fourth respondent, and effectively passed on the four votes of the respondent Councillors. Two other Councillors opposed it. One of those was the Mayor Mr Berwick. The complainant himself was not at that meeting because he was away from work and had been since 12 February 2008 on stress leave in circumstances which have some relationship to the events which are the subject matter of this proceeding. The resolution moved that his contract be terminated pursuant to its claimed entitlement to do so under the terms of his employment contract. The next day, 5 March 2008 by letter of that date, the acting Chief Executive Officer (“CEO”) of the Council notified the complainant of his termination as a consequence of that motion. That letter notified, as was the case, that the Council gave no reason for the action in terminating. An explanation for his termination was not provided until after the complaint, which initiated this proceeding, was filed.
The complainant seeks compensation in various forms, but principally as to quantum, by way of past and future economic loss arising from the termination of his employment. It is contended that his termination was a direct discrimination within the meaning of section 10 of the Anti-Discrimination Act 1991 (“the Act”) on the basis that the termination was on the basis of political belief or activity in the sense referenced in section 7(j) of the Act. Alternatively, the case is put that the termination was on the basis of his association with, or in relation to a person or persons, namely Mr Michael Berwick, who was then the Council Mayor and/or Roison Allen, who was his de facto partner who had political beliefs or engaged in political activity related to support for pro-environmental causes in the Council district. It is contended that this discrimination was in contravention of section 7(p) of the Act.
The position which the complainant held with the Council was a reasonably senior one, and he was appointed following a recruitment process that involved being interviewed by a selection panel which included the Mayor, Mr Berwick, the Deputy Mayor, who was then the second respondent Mr Egan and the then CEO, Mr Melchert as well as others. Events which concern the departure of Mr Melchert, as the Council CEO on 15 May 2007 have direct relevance to the circumstances of the dismissal of the complainant, at least on the case put for the complainant. It is contended for the complainant that apart from his termination with the Council, the complainant would as a matter of course have transitioned to work with the first respondent Council, by reason of a Code of Practice which was then in place which, assuming it was enforced would have assured him of employment in an equivalent position with the new Council. The complainant therefore contends that his termination, in contravention of the Act, led in effect to not only the loss of his position with the Council, but also of an equivalent position with the first respondent Council which would in due course have been available to him.
The Local Government Workforce Transition Code of Practice (“the Code of Practice”) commenced on 29 August 2007 and expires on 16 March 2011. The Code of Practice applied and applies to the Council, the Cairns City Council and the first respondent Cairns Regional Council and their employees pursuant to part 5 of its terms and section 159ZH of the Local Government Act 1993.
In particular the Code of Practice provided, relevantly for present purposes:
“7. Staff support transition principles
…
7.2The following supporting principles underpin the Code of Practice:
·maximise employment security for local government staff;
·maximise the retention of local government staff;
·minimise the impact on local government staff;
...
·contracts of employment will be honoured;
…
·treat staff fairly and with respect;
…
·prompt and sensitive dispute resolution;
·no overall loss of employment across the local government sector;
…
·no overall disadvantage to workers;
…
8.12Contract staff
8.12.1 Should the term of an employment contract for an ongoing role expire during the period of the Code’s application, the contract shall be re-negotiated and renewed or extended provided that the employee’s performance continues to be satisfactory.
…
8.12.3Contracted employees shall have all contracts honoured by the new or adjusted local government as if they were employed by their former local government.”
The practical consequence of the operation of this Code is that, for present purposes, the complainant would have been assured of employment in an equivalent position with equivalent salary with the first respondent until his contract would have expired on 5 November 2010. The complainant contends that he lost the opportunity or chance to earn income in that or a similar position with the first respondent after 5 November 2010. The respondents submit that he lost no such chance because he had tried to apply for positions with the first respondent before and after his termination with the Council but was not offered a position. It does not seem to me to follow that had he taken up a position with the first respondent in early 2008, that he would have been let go, and no other position offered when his contract expired in November 2010. There is no direct evidence of what those in positions to decide such issues with the first respondent were doing, or would have done in that situation had it been allowed to be reached.
“Limitation” in the Complaint to the ADCQ
A complaint was lodged with the Anti-Discrimination Commission Queensland (“ADCQ”) approximately 10 months after the termination of his employment and which was in due course accepted and referred to this Tribunal. The respondents contend that the content of this complaint is significant, particularly having regard to the quantum of the compensation which the complainant contends he ought to receive. It was submitted that the complaint did not assert that he was engaged in any political activity of his own with respect to the functions and operations of the Council, nor did he assert that his termination was caused by any political belief or activity of his in respect of the function of the Council. Other submissions are made with reference to the complaint which seek to point out various inconsistencies within the complaint and those which now found or make up part of the complainant’s case. In the result the submission is made that “the applicant’s complaint document either limits the basis upon which the applicant can litigate his case and/or casts real doubt upon any broader or wider case which might now be sought to be advanced”. It was also submitted that the complaint confined the activities of the complainant to “a very narrow band constituting either his own membership of a group or his relationship with an activist from that group or perhaps his relationship with the Mayor”.
When one considers carefully the matters which were contained within the original complaint, together with the supplementary material provided on 29 January 2009 in support of that complaint following an invitation from the ADCQ for the complainant to do so, it is clear that the complaint which was lodged against the respondents was one made on the basis of discrimination because of his presumed political beliefs or activities and his association with someone, namely his de facto spouse or others, who had particular political beliefs or were engaged in political activities. The complaint, and the supplementary material contained in it made an attempt at inferring, by analysis of the known facts, what might have been the motivations behind the respondent Councillors’ conduct in procuring his dismissal.
Section 136(b) of the Act requires that the complaint set out reasonably sufficient details to indicate an alleged contravention of the Act. There could be no doubt that that has occurred in this complaint, and the respondents do not contend otherwise. Pursuant to section 139, the Commissioner must reject complaints if it is of the reasonable opinion that the complaint is frivolous, trivial, or vexatious, misconceived or lacking in substance. The referral to this Tribunal occurred in accordance with the rights of the complainant to cause that to occur pursuant to section 164A of the Act. The Authorities on this issue were recently reviewed by this Tribunal in Yohan v Qld Basketball Incorporated & Brisbane Basketball Incorporated[1] where I held as follows:
[1] [2010] QCAT 459.
“There have been a number of decisions of the Anti-Discrimination Tribunal which have in general terms considered the application of the provisions of the Act in circumstances in which there has been some doubt about whether there were properly particularised contraventions specified in a complaint which had been referred[2]. In McKenzie v McKay & State of Queensland (Department of Education and the Arts) [2005] QADT 24 Mr Savage, subsequently the chairperson of the Tribunal, took the view that there should not be any strict or pedantic approach taken to the construction of complaints, and that the complaints identified in the submissions being made to him were mostly found in the original complaint of the Commissioner.
[2] See Hopper v Mt Isa Mines (1999) 2 Qd R 496 at 570; Quartermaine v Picard & Queensland Department of Health [2000] QADT 16 and Sailor v Village Taxi Cabs Pty Ltd v Markwick (2004) QADT 15 at [69].
In Wilson & McCollum v Lawson & Anor [2008] QADT 27 I said in the context at [101] – [102]:
“101.There has been no formal application to amend the complaint, but were one to be made at this time, there would be no prejudice to the respondents, they having resisted the case throughout the trial on the basis that harassment was part of the complainants’ case. Having said that, in my view, it is not necessary for there to be any amendment before there can be a finding of harassment. The material which went before the Commission is before me, although not tendered formally in evidence. It comprised a pro forma complaint with a body of attached material including a lengthy chronology. The complaint referred to the incidents which I have found in this case constituted vilification and harassment. Although the complainants did not “tick the box” within the complaints form which asked whether they had been sexually harassed, that is understandable, as to a lay person that would ordinarily suggest something more in the nature of sexual approaches rather than harassment of the kind that I have identified here. The referral report referred to it as a case of vilification, however that is a mere characterisation which does not bind the Tribunal. It is not a characterisation of the complaint by the Commission which determines the Tribunal’s jurisdiction. The Tribunal’s jurisdiction is one to hear and determine complaints about breaches of the Act, although those complaints must be made at first instance to the Commissioner.[39] In McKenzie v Ross Mackay & State of Queensland (Dept of Education and the Arts), Member Savage SC made the following remarks when a similar point was taken in that case:-
“8. The complainant submits that most if not all of the matters referred to in her Points of Claim filed in the Tribunal were in fact referred to in her original complaint. The balance of those allegations were, so it was said, mere matters of evidence which would be admissible in the hearing to be conducted in the Tribunal in any event and which did not affect either the extent of her complaint or any relief to be sought.
9. Most of the matters that are referred to in the Points of Claim appear in one guise or another in the complaint itself. The complaint is in the form of a lengthy letter with attachments. The attachments include (for example) minutes of meetings which record or purport to record various events. No separate identifiable complaint about those events appears in the complaint, other than that the complaint is introduced as one concerning racism engaged in by the Department of Education in a general sense over a prolonged period of time in respect of many people other than the complainant herself.
10. I do not think any strict or pedantic approach should be taken to the construction of complaints.
11. Viewed in that light, the complaints identified by the Respondents in their submission are mostly found in the original complaint to the Commissioner. The events in the document record parts of a continuum of conduct that the complainant generally described as racist.
12. Thus the Respondents’ first contentions largely fail because of the form of the complaint.”102.I do not propose to take a strict or pedantic approach to the construction of these complaints. Demonstrably, the Commission might have referenced the complaint as one of harassment in addition to vilification. That it did not do so does not limit the ability of this Tribunal to make a finding based on a re-characterisation of the legal bases for the facts identified in the original complaint.”
It seems to me that there is no legitimate basis for the submissions made for the respondents and which would seek, in some way or another, to limit the basis upon which the complainant can now advance his case by restricting it to inferences drawn, or arguments presented in the original complaint in support of the claims which were demonstrably articulated as claims for discrimination against himself by reason of political beliefs or activities or because of his association with other persons with such beliefs or engaging in such activities. The Act can scarcely have contemplated that a complainant, upon whom there are time limitations within which to commence a proceeding by way of complaint, might be met with an objection to being compensated for an infringement of the Act on a basis articulated in a complaint, because he was unable to precisely identify which of any specific possible motivations his antagonists may have had in seeking to have his employment terminated on the basis of some or another political belief or activities which he or others with whom he was associated had, but which ultimately led to a termination of his own employment. Were it otherwise, a complainant with a legitimate complaint capable of its articulation might be defeated by his ignorance then of precisely what was in the mind of those who procured the termination of his employment. I adopt the reasoning in McKenzie v Ross Mackay & State of Queensland (Dept of Education and the Arts) mentioned above. I do not propose to take a strict or pedantic approach to the construction of the original complaint and treat it as barring any other arguments based on the facts as they have now emerged, in support of the Complaint, on the basis that they may or may not be precisely articulated in that way in the original complaint.
The Conduct of the Respondents’ Case
The complaint was lodged in January 2009. The respondents’ solicitors wrote to the Anti-Discrimination Commission on the 1 May 2009 setting out the basis upon which they considered that the complainant had no real prospects of success. Those submissions repudiated the suggestion that the dismissal was on the basis of Mr Carey’s own political beliefs or activities, his association with Ms Allen, his de facto spouse, or his association with the Mayor. The respondents contended that his dismissal was because of concerns by the respondents about the complainant’s impartiality when performing his functions, concerns regarding his expertise and experience, concerns regarding his management of staff, and concerns about the attempt he is said to have made to amend his own contract of employment. Subsequently, directions were made by the Tribunal requiring the parties to file any affidavit material upon which they intended to rely at a hearing and orders were also made for the delivery of written outlines of contentions. In response, each of the respondents filed an affidavit explaining what they each said was the true basis for the decision to terminate.
The respondents also filed their written contentions, and then on 23 July 2010 amended contentions. Those contentions had the character of what one ordinarily finds in a pleading and responded to the allegations in the complainant’s contentions. There it was asserted that each of the respondents voted to terminate the complainant’s contract of employment, and it was reasonable to do so by reason of the following:
“4.The Respondents say the Complainant was dismissed for reasons related to work performance issues over the period that the Complainant was employed with the Douglas Shire Council (“the Council”) and concerns about his compliance with his statutory obligations under the Local Government Act 1993, in particular that section 1138 of that Act, that:
......... An employee of a local government must:
(a)act with integrity in the position held by the employee; and
(b)act in a way that shows a proper concern for the public interest.
5.The Second, Third, Fourth and Fifth Respondents (“the Respondent Councillors”) had had concerns about the Complainant’s work performance for some time, including in relation to the following incidents:
(1)The Complainant’s preparation of the Council’s Enterprise Agreement for 2005/2006 was not in accordance with legal requirements. Council was investigated and given a warning; employees were upset about the delay of finalising the Agreement.
(2)The Complainant’s handling of a workplace health and safety issue where a Council employee used a drill in a creek.
(3)The Complainant’s attempt (in late 2007) to have his contract of employment amended to remove the ability of the Council to dismiss him without providing a reason.
6.The Respondents say that the contents of a report prepared by an independent investigator, Leigh Bernhardt Corporate Consulting Services in December 2007 (“the Bernhardt Report”), was a significant contemporaneous event which preceded the Complainant’s dismissal and reinforced the concerns that had in respect of Mr Carey’s management skills and work performance, his ability to manage staff and his integrity. Significantly, the Bernhardt Report did not make reference to internal division within the Council, but rather referred directly to the Complainant’s performance issues.
7.The Bernhardt Report reported that:
(1)Referring to events following the dismissal of the former CEO (Mr Terry Melchert) in May 2007, changes to draft Council minutes were “sufficient to establish a ground of complaint by Councillors”. The Complainant was responsible for preparation of the draft Council minutes for consideration by the Councillors, and ought to have foreseen that criticism would ultimately be directed at him in respect of those changes. The Bernhardt Report did not single anyone out as having made the minute changes, but stated (at page 2) that:
...the “chain of possession” of the draft minutes is with the Council administration and not with Councillors. ...
If it is staff and not Councillors who have control of and in turn the distribution of the various drafts, it can only be staff about whom the allegation can be rightly made. ...
Mr Carey [ie the Complainant] manages the Council Department responsible for administration. Prima facie, in the “chain of command” he is the person responsible (subject to his reporting to the General Manager) for the security and accuracy of the draft minutes and for the behaviour of any subordinates.
As the dismissal of the then CEO was supported by the Mayor, the Complainant’s inculpation with the alteration of the draft Council minutes also raised concerns with the Respondent Councillors about his impartiality when conducting local government work due to a (real or perceived) “alliance” with the Mayor, Michael Berwick.
(2)The Complainant’s handling of an issue regarding which email distribution lists the then CEO would be put on was “not that expected of a mature manager” (page 46 of the Bernhardt Report);
(3)The Complainant, in response to a direct query from the then CEO, denied any involvement in an insurance claim affecting the Mayor, and this was subsequently found to be false (page 47 of the Bernhardt Report);
(4)The Complainant was found to have “by either his action or inaction, acted disloyally” to the then CEO in respect of allowing (expressly or otherwise) a Council staff member who reported to the Complainant to circulate a petition against the former CEO in Council time (page 47 of the Bernhardt Report).”
Again these contentions advance a case that suggests that each respondent acted in common with the others in the decision to cause his employment to be terminated. At the close of the case for the complainant, the respondents elected not to call any evidence. They did not seek to tender the filed statements of themselves and thereby did not expose themselves to cross-examination as to their real intentions and motives in procuring the termination of the complainant’s employment is significant. In the contentions which I have referred to already, a positive case is put as to their intentions. Were that evidence true, it would have provided an explanation for their conduct which would probably have shown that the termination was not political discrimination. As Senior Counsel for the complainant correctly submitted, the complainant’s case is circumstantial. It largely depends upon the drawing of inferences from the conduct of the respondents at the time of the relevant events. There is only one event, to which I shall refer shortly, which might be pointed to as a direct statement by one of the respondents as to his or their real motives, and that is contentious.
The failure to call evidence in the respondents’ case and to allow themselves to be cross-examined when they were clearly available to give evidence has two consequences. First it may be inferred that their evidence could not have advanced the respondents’ case[3]. Secondly, the circumstantial inferences sought to be drawn on the complainant’s case may be more safely drawn, given that those able to give direct evidence contradicting it elected not to do so[4].
[3] Jones v Dunkel (1959) 101 CLR 298.
[4] Weissensteiner v R (1993) 178 CLR 217, Azzopardi v R (2001) 205 CLR 50. In HML v the Queen (2007) 235 CLR 334, Heydon J succinctly summarised the general position at paragraph 303 as follows: “In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn”.
What is notable is that the contentions put forward the proposition in effect that the respondents’ reasons for the termination were reached in unison and in common.
The uncontroversial facts
There is, to a large degree, no dispute about many of the essential facts which the complainant relies in part upon in support of his case. There is significant controversy about how they ought to be interpreted or as to what inferences may be drawn from them and other evidence adduced as supporting the complainant’s case.
At the relevant times, the second, third, fourth and fifth respondents were Councillors on the Council. Michael Berwick was Mayor and, accordingly, a Councillor as well. The terms of Michael Berwick, Melinda Cox and Roderick Davis as Councillors of the respondent had commenced with their election in 2004 and ended on changeover day in March 2008, which I have already mentioned.
Roisin Allen was the de facto wife of the complainant and was, and had been for some time prior to the dismissal, a high profile and vocal constituent within the Douglas Shire, as the respondent Councillors well knew.
During the final term of the Council, Terry Melchert held the position of Chief Executive Officer of the Council and remained so until 18 May 2007. The second and third respondents were friends of Terry Melchert. During the final term of the Council, Michael Berwick, the Mayor was critical of the performance of Terry Melchert as CEO, as the respondent Councillors well knew. Also during the final term of the Council, Michael Berwick advocated, and the respondent Councillors resisted the removal of Terry Melchert as CEO. Terry Melchert was terminated on 18 May 2007. After his termination, the respondent Councillors made unsuccessful attempts to restore Terry Melchert to his former position. Michael Berwick resisted these attempts of the respondent Councillors to restore Terry Melchert to the position of CEO. They were unsuccessful in that regard.
At a special meeting of Council on 20 December 2007 and without notice, the second respondent moved and the fourth respondent seconded a motion before the Council that “Dependent on the required notice, that Mr Carey be terminated consistent with his employment contract”. That motion was carried with the respondent Councillors voting “for” and Councillors Michael Berwick and Melinda Cox voting “against”. One of the other Councillors, Councillor Davis was absent from the Council when the vote was taken. Notwithstanding, the passing of that resolution of 20 December 2007 failed to cause the termination of the complainant’s employment. No reason was provided for the attempted termination.
Clause 9.1 of the complainant’s employment contract had provided:
“9.1..... This contract may be terminated before 6th November 2010 in the event of any of the following circumstances:
9.1.1by the Chief Executive Officer (with Council approval) and the employee agreeing in writing,
9.1.2by the employee, with six (6) weeks notice,
9.1.3by the Chief Executive Officer (with Council approval) in accordance with the Disciplinary Procedures and/or Termination of Employment provisions prescribed in Council Policy,
9.1.4by the Chief Executive Officer (with Council approval) by giving the appropriate notice prescribed in Council Policy where the employee does not meet the performance measures in Schedule A or the terms of the performance agreement referred to in Sub-clause 6.1 or the strategic objectives and performance measures referred to in Sub-clause 6.2,
9.1.5by the Chief Executive Officer (with Council approval) without notice, if the employee commits any act which would entitle an employer to summarily dismiss the employee in which case the employee shall be entitled to payment of salary up to the date of dismissal. Such acts include but are not limited to the following:
(a)serious or persistent breach of any of the terms or conditions of this contract;
(b)dishonesty, fraud, wilful disobedience, gross misconduct;
(c)wilful breach, non-observance, neglect or discharge of duties to the Council to the reasonable requirements of the Chief Executive Officer;
(d)disobedience to or neglect of lawful instructions or directions duly authorized;
(e)the employee engaging in sexual harassment or racial or religious vilification;
(f)conviction of an offence precluding or inhibiting the further performance of duties under the contract;
(g)incapacity which prevents the employee performing the duties outlined in this contract;
9.1.6The Chief Executive Officer (with Council approval) may terminate the contract for any reason other than those specified in Sub-clauses 9.1.1, 9.1.3, 9.1.4 and 9.1.5 provided the Chief Executive Officer shall give six (6) months notice or, in the absence of notice, the payment in lieu thereof of all salary and benefits as thought the notice period had been worked. Alternatively, in cases where the contract expires within six (6) months the Council shall pay to the employee all salary and benefits calculated as if the employee has worked the balance of the contract.” (CAC67, RAC13)
The respondents contend that, because clause 9.1.6 provides for termination for any reason other than those specified in the other subclauses, it “effectively gives the Council the power to terminate for any reason whatsoever upon payment of a required sum”. They further submit that termination under that clause does not involve any finding or allegation critical of or contrary to the interests of the Applicant and that the clause would allow termination for any reason whatsoever and that it is implicit in that concept that there is no requirement to give reasons and accordingly no entitlement in the Applicant to challenge a failure to give reasons.
The respondents further contend that, although the clause cannot affect a “contracting out” of the provision of the Anti-Discrimination Act 1991, “it nonetheless puts into context the Applicant's entitlement under the Act. It is difficult to see for example how it can be that the Applicant can allege political discrimination in the exercise of a power as broadly framed as that contained in clause 9.1.6 of the contract. Further the provision for payment constitutes what is in effect an agreed liquidated damages clause for termination for any reason whatsoever other than those reasons specified”.
It is to be noted that this submission does not extend itself to actually arguing that in some way or another, clause 9.1.6 precludes a claim such as that made here, or in some way or another limits the recoverability of compensation for a proven breach of the act on the basis of discriminatory conduct. Notwithstanding the existence of a clause, the contract of employment which, on its face, would appear to entitle an employer to terminate either with or without notice, and without cause, such a termination must be effected lawfully, and may not be effected in contravention of the Act. The fact that a contract might entitle an employer exercising a contractual right to limit any claim against him to some liquidated sum, or even no amount at all, does not affect the jurisdiction of this Tribunal to order compensation for the consequences of the discriminatory conduct. It would of course take account in assessing that compensation, any amount to which the employer was otherwise entitled contractually by reason of the termination. I therefore reject the submission made on behalf of the respondents on this issue.
Returning then to the uncontroversial facts, on 11 January 2008 the Acting CEO of the Council, Julia Leu, and the complainant, attempted to vary the complainant’s contract of employment by deleting clause 9.1.6. As may be apparent, this may have led to the removal of a right of termination other than for cause. It would have deprived the Council of a right to terminate simply upon the giving of 6 months notice or pay in lieu.
In a meeting of the Community and Corporate Standing Committee of the Council on 12 February 2008, it was resolved “That the alteration to the contract employees’ contracts to delete clause 9.1.6 is considered to be unauthorised, and therefore illegal, and such clause be reinserted into the contract.” In respect of that motion, the respondent Councillors voted “for” and Councillors Michael Berwick and Melinda Cox voted “against” (Councillor Davis was again absent as a voting member).
A meeting of the Community and Corporate Standing Committee of the Council was held on 4 March 2008. The respondent Councillors and Councillors Michael Berwick, Melinda Cox and Roderick Davis were present at the meeting, along with some Council staff not including the complainant who was away from work on sick leave (CAC 61, RAC 13).
The meeting was the final planned meeting of the Community and Corporate Standing Committee of the Council prior to changeover day, as the respondent Councillors well knew. The issue of the termination of the complainant’s Contract of Employment had not been included in the meeting’s agenda prior to the meeting. In the course of the meeting the second respondent, seconded by the fourth respondent, moved:
“That the committee agrees to terminate the contract of the General Manager, Community & Corporate, David Carey, pursuant to clause 9.1.6 of the contract.”
In the course of debate on the termination motion, there was a request that a reason for the termination of the complainant’s contract be given, but no reason was provided. Also in the course of debate on the termination motion, an amendment to the motion was moved by Councillor Roderick Davis and seconded by Councillor Michael Berwick, to the effect
“That the matter of the termination of the contract of the General Manager, Community & Corporate, David Carey, lies on the table until he returns from sick leave.” (“the amendment to the motion”) (CAC65, RAC13)
The amendment to the motion was lost, with Councillors Michael Berwick, Melinda Cox and Roderick Davis voting “for” it, and the respondent Councillors voting “against” it.
The termination motion was carried at the meeting with the respondent Councillors voting “for” and Councillors Michael Berwick, Melinda Cox and Roderick Davis voting “against”. By letter dated 5 March 2008, Bruce Ede, Acting Chief Executive Officer of the Council, notified the complainant of the termination of his contract of employment in the following terms:
“Termination of Contract of Employment
I wish to formally advise you, that the Community & Corporate Standing Committee of Council resolved at this (sic) meeting of the 4th March 2008 to terminate your contract of employment with Council, pursuant to clause 9.1.6 of that contract.
The committee gave no reason for this action.
Arrangements are being made for the processing of your termination payment, and we will contact you regarding this matter.
Whilst, I have only known you for a short period of time, I can say that I have found the work you have undertaken to be of a very high standard, and as fulfilling the requirements relating to the performance under the contract.
In closing, I wish you all the best for the future.”
The Complainant’s Case on the Evidence
The complainant gave evidence and filed two affidavits, one of which went solely to the issue of the quantum of his loss. His de facto partner Roisin Allen filed an affidavit and gave oral testimony as did Mr Michael Berwick, the former Mayor of the Council. Other witnesses who provided affidavits as well as giving oral testimony were:
-Michael Forsythe, who is the information technology manager for the Council. He gave evidence surrounding circumstances of the alleged removal of Mr Melchert from a Council email circulation list.
-Ms Melissa Green, who was an employee for counsel and worked as a personal assistant for the Mayor. She gave evidence of the poor relationship between the Mayor and Mr Melchert and the attitude of some staff to the conduct of Mr Melchert. She was the author of a memorandum to the Mayor outlining the views of administrative staff, in particular that the position advanced by Mr Melchert was not supported by the majority of administrative staff.
-Mr Rod Davis and Julia Leu, Councillors, on the Council at the relevant time.
-Mr James Neely, the acting CEO of the Council from time to time, particularly when Mr Melchert was on leave.
Apart from those witnesses, there were several from whom there was sworn affidavit material but who were not required for cross examination and gave no other evidence. They were Ann Clark, the manager for Corporate Support in the Council at the relevant time and who reported to the complainant. Likewise, Mr Bradley Henschke who was the workplace health and safety officer for the council, and also reported to the complainant. Peter Chapman held a similar position and his affidavit was tendered. Their evidence went to the circumstances of the workplace health and safety incident referred to in the respondent’s contentions.
Apart from those lay witnesses, there were two witnesses with medical qualifications who gave expert evidence concerning the complainant’s physical and emotional condition at different times. They were the complainant’s GP Dr Elizabeth Stringer, and a psychiatrist, Dr Jetnikoff. Both doctors had given reports, and also gave oral testimony.
The witnesses called in the complainant’s case gave evidence directed to either one of two purposes. Either, to demonstrate the likelihood that the respondents caused the termination of the complainant’s employment on the grounds of his political beliefs or activities, or his association with the political beliefs and activities of his de facto or Mr Berwick. Alternatively their evidence was directed to disproving the allegations set out above in paragraphs 5 and 6 of the respondent’s contentions. That is, they were directed to disproving that the complainant was involved in the preparation of the Council’s enterprise agreement in 2006 and that this reflected poorly on the complainant’s work performance. Secondly that he had not mishandled a workplace health and safety issue concerning the use of a drill in a creek. Thirdly, whether the complainant himself was the prime mover to have his contract of employment amended and as to whether this was inappropriate. Fourthly, to disprove whether the validity of any criticisms which were set out in the so called Bernhardt Report, the relevance of which was set out in paragraphs 6 and 7 of the respondents’ contentions. Independently of whether there was any factual basis for the assertions that there was a legitimate basis for concern about the complainant’s work performance, there was of course always looming the ultimate question; which is whether, even if there might have been some legitimate basis for such a concern, those concerns were the sole or primary basis for the decision by the respondents to have his employment terminated. To put it another way, whether there was evidence from which an inference might be properly drawn that whether or not the respondents did have or could have had such concerns, the substantial reason for his termination was on a basis prohibited under the Act as political discrimination.
The result of the complainant having to conduct a case which sought to impugn the factual basis for what was said to be the concerns held by the respondents about the complainant’s work performance resulted in a hearing which amounted to a wide ranging enquiry into a number of years of dysfunctional activity in the Council. It involved detailed evidence about various relationships held between various staff members and the complainant, or Mr Melchert, the former CEO. It involved a dispute about the extent to which the complainant was involved in events that led to Mr Melchert leaving and as to what response they solicited from the respondents themselves. It involved an enquiry into the circumstances of the workplace health and safety issue involving the drill. It involved an inquiry into the circumstances by which he sought to have his contract of employment amended in late 2007, and the extent to which others had a role in that. Finally, there was a review of whether there was any basis for findings made in the Bernhardt Report, whether those findings accurately reflected reality, and whether they were in any event reliable conclusions. In some respects the proper construction to be placed upon findings in that report and another consultant’s report into the Council’s affairs was the subject of dispute. The result of this was that there were in effect numerous “trials within a trial” about events which took place, in some cases more than four years before the termination event, and in some cases, insofar as activities of Ms Allen is concerned, going back to the year 2000.
I have given careful consideration to all of the evidence which has been adduced in the case. Without referring to any specific incidents, which might have been capable of reflecting upon the skills and performance of the complainant in the eyes of the respondents, it seems to me that there is little, if any evidence to suggest that any of these issues were in fact, or even might have been occupying the mind of the respondents, or any of them at the time the decision was made to terminate.
What the evidence does demonstrate very clearly is that, to the extent that there might have been any legitimacy to contentions that the complainant himself had acted in a way which might be perceived by some to be inappropriate, (for example in attempting to have a disadvantageous clause removed from his contract of employment), that these were matters which did not involve him alone, but were sanctioned, approved or in respect of which he was provided assistance by authorised Council officers. In other respects, the evidence shows that there was no basis whatsoever for criticising his behaviour in discharging his responsibilities.
For example, he had no role in the so-called inappropriate alteration of Council minutes. As was explained in the evidence of Mr Berwick, which I accept, the Minutes of Council meetings were always provided in draft. There was internal division within the Council, particularly amongst its councillors as to whether Minutes should reflect the effect of what was said, or be some kind of verbatim record. I accept that the complainant was not a person who acted inappropriately insofar as he was involved in that dispute and he certainly had no role such that it might legitimately have been thought that that role justified his termination, or install a belief that his skills and performance were so unsatisfactory that he ought be terminated from his position because of it. Likewise there was no substance to the contention that the complainant was the reason why there might be any basis for complaint about the quality of the Council’s Enterprise Agreement negotiated in 2006. Again, it is impossible to imagine that any of the respondents legitimately regarded the complainant as the person responsible for whatever problems they felt were present in that agreement and genuinely believed this was a ground to terminate his employment in March 2008. What those problems were, in any event, remain elusive.
To the extent that there were criticisms or arguably criticisms found in the Bernhardt Report about Mr Carey, it is evident from that report and from other evidence to this Tribunal, that that report did not imply that Mr Carey was unsuitable to perform his duties, or that whatever shortcomings it identified, that they were so serious that it might justify a review of his continued employment.
There is one question asked of the respondents’ case which does warrant further specific comment. The respondents contend in paragraph 16 of their amended contentions, that findings in a report known as the Bernhardt Report reinforced concerns that they had had in respect of the complainant’s management skills, and his ability to manage staff and integrity. It is said that this report “drew attention” to deficiencies in his work performance and compliance with his statutory obligations as a local government employee. The Bernhardt Report is dated 11 December 2007. Its author was Mr Leigh Bernhardt. He was a corporate consultant engaged by the Council to investigate various allegations and complaints made by existing past employees of the Council. The complaints investigated included a number of complaints by other Council staff, complaints by the former CEO Mr Melchert against various staff including Mr Carey, a complaint by Mr Carey against Mr Egan, the second respondent, and complaints by other Council employees against, inter alia, Councillor Davis. As the report identifies, this involved an investigation of 12 claims which included 77 elements or subclaims. The complaints by Mr Carey against Mr Egan and Mr Melchert were each found to be unsubstantiated as were other complaints by other staff and as well as complaints by the Mayor against various individuals, including Mr Melchert. The only finding in it which was remotely adverse to Mr Carey related to a complaint by Mr Melchert against him, also made against the Mayor and Mr Davis. The finding was that the claim against the complainant was “generally not substantiated” but in respect of the suggestion that he was involved in making changes to the email circulation list, it was recommended that Mr Carey be counselled to ensure that he was aware that he was subordinate to the CEO and be aware that he should take no action to deny the CEO information that would otherwise undermine him. There was certainly no recommendation of any kind that implied a finding of inability to comply with statutory obligations, to question his work performance, management skills or ability to manage staff or his integrity. On no reading of this report could it reasonably be concluded that any of those matters had been established or ought be the basis for any concerns about those matters that the respondents now assert that they had. I do not accept that findings which would question any of those matters were in fact made, or could have been thought to have been made by the respondents.
But in the end, and independently of the question of what in truth occurred in relation to the enterprise agreement, the workplace health and safety issue, the amendment of the complainant’s contract of employment and the issues concerning the changes to the draft minutes, the changed email distribution lists, the making of insurance claims by the Mayor and the presentation of a petition against the former CEO, I find that there is no evidence whatsoever to support the contention that any or all of these issues were the driving force or indeed a relevant consideration standing behind the decision by the respondents to cause the complainant’s employment to be terminated. No witness gave evidence which supported the view that, at any time, contemporaneous with that termination, the respondents, or any of them, were genuinely motivated to terminate him for any of those reasons. There is no evidence that any of the respondents contemporaneously, or even at any earlier time, put the complainant on notice that they regarded him as responsible for having brought about each of those incidents and further that they were contemplating having his employment terminated because of it. Even when the motion was put to Council for the vote, there was no debate on the motion and none of the respondents put forward any view in support of it, which is consistent with the contentions now made as justifying it.
Clearly the respondent councillors did not notify the CEO, whose job it was to communicate the termination to the complainant, what their reasons for it were.
It is difficult to imagine that were those concerns genuinely held, and found the basis for their decision, that the complainant would not have been what those concerns were, even if he was not to be given an opportunity to respond to the allegations. He was of course given no such opportunity. The evidence suggests that the respondents kept secret from both the complainant himself, and also from other relevant Council officers, including the Mayor what the reasons behind the motion were. They did not include it in the agenda for the meeting, nor did they do so when they had made the earlier unsuccessful attempt to remove him. In the failed December attempt to remove him, they had refused a request from the Mayor for some justification for the motion. Were there legitimate reasons for his removal, it is difficult to imagine that they would have had any resistance to having them put on the record in the circumstances. The fact that the motion was brought on without notice on any agenda suggests that the respondents were intent upon achieving what was in effect an ambush, giving no advance notice of their intentions or motivations, and knowing that on that particular day, for various reasons, they would hold the numbers on the floor and their votes hold sway.
The relationship between Roisin Allen and the Respondents
Earlier in these reasons, I observed that the complainant was first employed with the Council in November 2005. In January 2007, he and Roisin Allen commenced a de facto relationship. It was contended that there was a history of what might generally be described as tension, if not animosity between Ms Allen and various of the respondents, which went back at least to 2004. She had assisted Mr Berwick in his re-election as Mayor in 1994 and in most, if not all subsequent elections. Ms Allen was then actively involved in various environmental and other political issues in the Douglas Shire, and began writing regularly in the local newspaper either supporting Mr Berwick, the Mayor or doing things that amount to what she calls “defending the environment”. She became a member of various environmental groups, principally concerned with protecting the Daintree Rainforest. She then assisted Councillor Berwick in his re-election campaigns in 1997, 2000 and 2004. Since 1995, Mr Melchert had been CEO of the Council and continued in that role until May 2007. It is suggested in the material that he was dismissed from employment, although the evidence suggests that he was able to negotiate a redundancy package which involved his being paid 12 months wages.
In due course, by 2007, she had formed the Douglas Shire Sustainability Group which had as one of its goals the preservation of the environment in the Port Douglas District. In that role the organisation publicly criticised each of the respondents, and also their friend Mr Melchert. By 7 June 2007 it would have been clear to the respondents that Ms Allen was involved with the sustainability group because she was writing emails to them on its behalf in June 2007. Another organisation with which she was involved was known as the Low Isles Preservation Society which had the acronym “LIPS”. Even as early as October 2004, the fourth respondent was publicly critical of that organisation which was described by him at a Council meeting as “a dangerous political group”. Ms Allen publicly responded to these statements and was personally critical of the fourth respondent, describing him as “way out of touch with this community’s views”. She also referred to a vote in Council to repeal a legislative instrument which had prohibited further development in the Daintree until a town plan could be adopted. This prohibition had been supported by various organisations of which Ms Allen was a member. Each of the four respondents voted together in Council on this issue. From at least that time it may be seen that there was general unison between the respondents on certain, but not all issues, many of which involved Ms Allen as their adversary. Of course there is also evidence that each of them voted at other times, other than in unison on some issues. It matters not for present purposes whether they invariably did so. But the fact is that they came to be known, together with Mr Melchert, colloquially and publicly by Ms Allen with the belittling title of “the gang of five”. At the final Council meeting of 2006, Ms Allen had gone to the meeting holding a placard with photographs of the respondents and Mr Melchert and claiming that the “gang of five” had to go.
In January 2007, she wrote a letter to the local newspaper publicly criticising the four respondents’ method of voting with respect to the extension of another staff member’s contract. She described the community as having been “short changed by the gang of five” and suggested questions had gone unanswered by them. On one occasion, Mr Bellero, the fourth respondent, had voted in favour of a motion which Ms Allen supported. She wrote to him to thank him but his response rejected her thanks, saying insultingly “nothing that you would ever say or do would ever influence or change my vote”.
There is no issue that the respondents were aware of the relationship between Ms Allen and the complainant at the relevant times. In fact, that had been subject to adverse comment by the second respondent Mr Egan in July 2007 in the course of a radio interview where he described the relationship between the Mayor, the councillor and environmental organisations, which he described as something which was making him “upset” but which in his opinion was “foul”.
After the dismissal of Mr Melchert, there were various attempts by the respondent councillors to have Mr Melchert reinstated. Ms Allen made public her opposition to his reinstatement and appeared amongst a vocal gallery opposing that course on 17 July 2007. A few months later, in September 2007, the fourth respondent, Mr Bellero, picked her out of a large group of some 50 people at a morning recess after Council debate and went up to her very closely, reached out as if to shake her hand and introduced himself in a way which she found intimidating, and whilst grinning at her. It seems to have been intended to mock her in front of others.
On 13 December 2007, the fourth respondent sent a letter to the editor of the local paper criticising other letters to the paper which had been sent by Ms Allen, and the Mayor. It referred to a meeting about which he was complaining that councillors had not been invited and suggested it was “stacked with environmental groups”. He suggested that attempts by another person to bring “a bit of common sense into the discussion” were not well received by Ms Allen or the Mayor, who were “hell bent on the idea of saving our Shire by capping the population. It’s obvious those who have come and built and settled here in most recent times don’t want to share with anyone else”.
Prior to the eventual termination of the complainant, the respondents had made an earlier attempt to remove him by another motion, which they also passed in unison. For various reasons which it is not necessary to identify, that resolution was not effective to remove him. But again, even that failed attempt on 20 December 2007 was not explained by the respondents in any way, or placed on the record. Also essentially, the motion was not given effect to because legal advice was received by the Council’s solicitor that the motion to remove him had not been included on the three agenda items for business that day, and all councillors were not present and in unanimous agreement to consider without notice such a resolution. The advice also queried whether there had been any procedural fairness given to the complainant. Essentially the CEO refused to terminate the complainant’s employment based on the passing of that motion. She advised all the councillors accordingly on 2 January 2008. It may reasonably be inferred that the eventual termination of his employment was an attempt to successfully achieve what had been unsuccessfully attempted in December 2007.
In the Bernhardt Report, which, as I have mentioned, was published a few months before the complainant’s termination, there was express reference to a complaint by the respondents’ friend Mr Melchert, that the “partner of David Carey”, namely Roisin Allen, was spreading “disparaging remarks concerning the CEO”. If it were not otherwise obvious in any event to the respondents, the report also noted that Ms Allen was an active supporter of the Mayor and that her publication of articles castigating Mr Melchert and councillors were well known. The report noted that, although it was not always the case, the Council had by the time of Mr Carey’s termination been split in two, in which groups, one of which comprised of Mayor Berwick and his supporters, and the other which at least on some critical issues, particularly environmental issues and the treatment of Mr Melchert, comprised the second to fifth respondents. Not all of the respondents made public criticisms of Ms Allen, and her support for the Mayor or on other issues about which they differed, but it is reasonable to infer that by the end of 2007, they had developed significant animosity toward Ms Allen and the complainant by reason of her relationship with him, apart from any feeling they had about him for any other reason.
The Relationship between the Complainant and Mayor Berwick
There is conflicting evidence as to the extent to which the respondents might have perceived the complainant to be in some way politically affiliated with, or an ally of the Mayor, Mike Berwick. There is certainly evidence that some, if not all respondents found themselves regularly opposing the political position adopted by the Mayor, particularly on planning and environmental issues, however it cannot be said that that was always so. On some occasions, on some issues which went before the Council, some respondents supported the position of the Mayor. In a commissioned report concerning the dysfunctional aspects of the Council, known as the Kellar Report of 31 August 2006, the author noted a division of opinion on key issues, mainly concerned with the Council’s planning scheme, and the continued employment of Mr Melchert, then the CEO. Another report was delivered into the affairs of the Council in February 2007. It was known as the Spearritt Report. It noted that the Mayor was often not able to obtain support from the majority of councillors on key policy issues. There is some evidence of a developing animosity between some of the respondents, particularly Mr Egan and the Mayor, with there being occasional bitter verbal exchanges between them. I do not regard it as necessary to rehearse a wide range of issues upon which the respondents might be thought to have taken an adversarial position to that of the Mayor. The real issue is whether, in some way or another, the complainant was in fact seen, or I can infer from the evidence that the respondents saw the complainant as “Mr Berwick’s man.” There is relatively little to suggest that he was perceived in this way. One example was an incident involving a Council meeting on 13 December 2006. There was a dispute between the Councillors as to whether it was necessary for the Mayor to address the contents of the Kellar Report without it first having been accepted as tabled. The complainant gave advice that in his view it was unnecessary, and that therefore the Mayor could address the report without a vote to accept it as tabled. On giving that advice, the respondents were aggressive and hostile toward the complainant. He was challenged to produce some precedent for his ruling, and the fifth respondent made a comment to the effect that the complainant was “biased”. This incident was of course 12 months before the first of the attempts to have the complainant dismissed.
There was also the suggestion to which I have already referred in a different context concerning a dispute as to whether Minutes kept of meetings were inappropriately altered. This dispute really came to a head in or about May 2007. The complainant swore that he was accused by the second respondent of having tampered with those Minutes, although there was nothing in fact to substantiate that allegation. The respondents accept in their contentions para 7(1) that his “inculpation with the alteration of the draft Council Minutes also raised concerns with the respondent councillors when conducting local government work due to a (real or perceived) “alliance with the Mayor...”.” There is therefore some support for the view that they saw him in this way. On the evidence before me, however, I am not satisfied that the respondents’ determination of the complainant’s employment because of a perceived political affiliation with Mr Berwick on planning and environmental issues. But their perception of him as allied with the Mayor may well have had other consequences.
I now turn to the question of whether the evidence establishes that the complainant was seen as politically aligned to Mr Berwick, the Mayor, or otherwise politically aligned against the respondent councillors in respect of the issue of the continued employment or reinstatement of Mr Melchert, the former CEO. Mr Berwick gave evidence, which I accept, that in the last four year term of the Council Mr Berwick had a serious falling out with his CEO, Mr Melchert. Mr Berwick formed the view that there had been serious problems with the way in which Mr Melchert had been discharging his responsibilities and when the Mayor sought to do something about this, Mr Melchert responded by accusing him of bullying. They fell out over the Mayor’s insistence that he take a period of stress leave and there was obviously a level of animosity which developed between them for a range of reasons. Mr Berwick formed the view that Mr Melchert was acting in a partisan way in the performance of his duties, primarily in providing active support for the respondent councillors in their various disputes within Council with Mr Berwick and his supporters. In the Kellar report of 31 August 2006, it was noted that there was a division of opinion on key issues pertaining to the continued employment of the CEO, with the report noting that, in the case of the Council’s relationship with the CEO, the majority, i.e. the respondents here, tended to demonstrate solidarity.
Mr Berwick gave evidence that, for example, Mr Melchert attempted to prevent him from obtaining administrative help whilst dealing with the Crime and Misconduct Commission, and in responding to a defamation case which had been brought against him. On the other hand, Mr Melchert actively socialised with the respondents, and assisted them to write resolutions and reports and in other ways.
As a result of an intervention by the Local Government Minister, it was recommended that the Council be dissolved and in effect an administrator appointed. Mr Berwick sought to head off this proposal and Council developed a review process which came to be known as the 22 Point Plan. It centred on a process to assess Mr Melchert’s performance with a self executing resolution to accept the recommendations of a performance management panel. Despite initially agreeing to this plan, once it became apparent that there would then be a resolution in consequence terminating the CEO’s employment, the respondents changed position and sought to rescind the 22 Point Plan motion so as to prevent Mr Melchert’s employment being terminated. Notwithstanding this, the CEO was dismissed on 18 May 2007 on the basis of the panel’s report.
There then followed attempts by the respondent councillors to rescind the decision terminating the employment by the calling of the special meeting. There was also then a dispute involving each of the respondent councillors (except the fourth respondent), when they sought to attempt to replace the substitute acting CEO, Ms Leu. There is some suggestion in the evidence that the subsequent dispute, about whether or not the Minutes were tampered with, is in some way motivated by an attempt to challenge the decision to terminate Mr Melchert’s employment. In July 2007, the second respondent put a motion that purported to “reaffirm” a position which in fact did not exist, namely confirming the tenure of the CEO and requesting he return to work.
Although Mr Carey was not the person who was appointed to replace Mr Melchert as the CEO, he had an active role in the Council and probably because of the relationship he had with Ms Allen, and as seen by the respondent councillors, as they put it, in an alliance with Mr Berwick and could be seen as a person to whom the respondents could direct an act of political retribution for the loss of their ally Mr Melchert. They could do nothing about Mr Berwick or Ms Allen. And after 15 March 2008 their tenure as councillors would have ended. So with 11 days to go, they terminated him, even though they would have had no further association with him as a Council officer after those 11 days.
I have already mentioned the peculiarity of the attempts to terminate the complainant’s employment by a motion that day on no notice. In any professional environment, one would have thought it extraordinary that a senior officer of an organisation might be removed without his ever having been informed that there was any complaint about the manner in which he was performing his duties. I accept Mr Berwick’s evidence that, when challenged for a reason, the second respondent had said to Mr Berwick that if they needed to give him a reason, they would “put (their) heads together and find one”.
There is one final incident worthy of mention. After abolition of the Council, there was an inaugural Council meeting of the first respondent on 3 April 2008. Mr Carey attended with his partner Ms Allen. The fourth and fifth respondents Mr Bellero and Mr Scizcca were also there. Mr Carey confronted them and accused them of being cowards. The fifth respondent’s response was to say that the two of them were a disgrace. There was a later confrontation that morning as a result of which Ms Allen told them to leave her partner alone. The fifth respondent then called her a trouble maker and told her to go back where she came from, or words to that effect. I accept that this conversation took place and that it reflects, at least on the part of the fifth respondent a level of animosity toward Mr Carey and Ms Allen which I am prepared to infer existed at the time of the March Council meeting which resulted in the termination of his employment.
There is some other evidence which tends to support the view that this was an act of political retribution. That was evidence given by another councillor, Mr Davis, of a conversation had with the second respondent in late January 2008, a few months before the dismissal. His evidence by affidavit was that when he asked Mr Egan whether their attempts to terminate the complainant were “revenge for Terry” (referring to Mr Melchert), Egan replied “yes you got our guy so now we are going to get yours”.
There remains some doubt about whether these words were said in those precise terms. When Mr Davis recounted this conversation during cross examination, he referred to it as the “revenge politics conversation” and said that he had asked whether the action they were taking on that was “revenge for the termination of Melchert”. Mr Davis struggled to directly answer questions in cross examination about what had been said and the circumstances. It was put to him that he attended the council meeting on 4 March 2008 and did not say anything about this conversation which he claims to have had with Mr Egan. There is, however, some level of corroboration that a statement to that effect was made. First, the transcript of the Council meeting of 4 March 2008 records Mr Davis as saying that “in January this year I was contacted by one of the councillors at this table here on the phone and I asked - what is the reason for the attempt to terminate Mr Carey and it was stated to me clearly that it was revenge politics...politics residual of Mr Melchert”. In other evidence from Mr Davis, corroborated by Mr Carey himself at the Australia Day ceremony in Port Douglas in January 2008, he told Mr Egan about these comments and that Mr Carey showed concern for his continued employment.
Meaning of discrimination on the basis of political belief or activity
What then is discrimination on the basis of political belief or activity, within the meaning of that expression in section 7(j) of the Act? These terms are themselves not defined in the Act. There appear to have been three other occasions in which this Tribunal, or its predecessor, the Queensland Anti-Discrimination Tribunal has been called upon to consider a situation in which there has been alleged discrimination on the basis of political belief or activity, within the meaning of that expression in section 7(j) of the Act.
They first occurred in circumstances not unlike the present in Byrne v State of Queensland[5]. There, a person employed by the State as the director general of a particular department was given notice of termination of her contract to the employment by the relevant minister. The termination was effected via recommendation to the Governor by the Executive Council. The Tribunal upheld a complaint to the effect that her employment was terminated wholly or substantially because of her political beliefs or activities or on the basis of her association with persons identified on the basis of their political beliefs and activities. In short, the allegation was that the complainant’s association with the Australian Labour Party was a reason or at least a substantial reason for her termination from her position consequent upon a change of government and the appointment of conservative parties to power in Queensland. Apparently, authorities were placed before the Tribunal on that occasion as to what amounted to “political belief or activity”[6]. The authorities are not identified in the reasons and the concession was apparently effectively made that “the knowledge by the Premier and/or the Minister of the complainant’s political associations, beliefs, or affiliations, if proved and acted upon, could not fulfil the required criteria under the Act[7]. The Tribunal rejected evidence that the complainant’s association with that political party played no part in the recommendations for determination. The Tribunal accepted there was “an abundance of direct evidence of Mr Lingard’s views of the complainant, expressed both in the media and to Mr Borbidge, which views are inextricably linked with her association with the ALP. The inference that she was dismissed substantially for this reason is irresistible”.[8] Although the precise reasoning that lead to that conclusion is not apparent from the reasons, it may be readily inferred that, in a political context such as that which they presented, the dismissal of a senior public servant because of her association with a political party which contained opposing or differing policies to those of the governing party, was a dismissal on the basis of her political belief or her activity. It is, perhaps, an example par excellence of such activity.
[5] [1998] QADT 20.
[6] Reasons para 109.
[7] Reasons para 109.
[8] Reasons para 111.
The second occasion, when this issue came to be considered, was when I did so in Jones v Jacobs and Clark [2004] QADT 34. There, the issue was whether membership for a group of persons that stood for election to a university student representative body, and which called itself a ticket, meant that one held a particular political belief or was involved in any particular political activity. I held, applying a relatively narrow definition of that expression taken from some Victorian authority, that it was not.
In that context I cited a passage which I still regard as good law in Queensland from the decision of the Anti-Discrimination Tribunal in Victoria in Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44 as follows:
"Political belief or activity", then, covers a continuum beginning with the mental state of belief, including the expression of that belief (the holding of a view), and the forming of an intention to act, and also embracing action itself. The word "political" describes "belief" and also "activity". It has been held that, for a belief or activity to be political, it must bear on government - on the role, structure, feature, purpose, obligations, duties, or on some other aspect of government (Nestle case and CPS Management case, cited above; Laroche v Equal Opportunity Board, Supreme Court of Vic, Gobbo J, 18 March 1991; for a similar view, see Ralph M Lee v Fort[1991] EOC 92 - 332). In our view, a belief or activity will also bear on government if it concerns the relationship between government and the governed - that is, the citizens of the society in question. The Supreme Court decisions in this jurisdiction do not go as far as have Anti-Discrimination Tribunals in other jurisdictions. They do not define "political' as including the distribution or utilisation of economic social or cultural powers in the society (for an example of this view see Croatian Brotherhood Union of West Australia v Yugoslav Clubs and Associations of West Australia[1987] EOC 92-190; for a contrary view, see O'Dea v Transportation Australia Corporation[1997] EOC 92-719).
What is political must be determined objectively, taking into account the nature of the activity or belief. In most cases, the perceptions of the parties will be irrelevant (Duggan v South Yarra Constructions Pty Ltd[1987] EOC 92-220). A belief is not political because a person says or thinks it is. However, there may be cases where a person considers that a belief is political because the society in general, and all other people who hold that belief, also consider it so. This may well be evidence that the belief is in fact political.
Again, an activity is not political merely because it is motivated by a political belief. A person's political beliefs may lead him or her to do things which are not, by their nature and when objectively viewed, political. It is the activity itself which, when objectively viewed, must by its nature or purpose be political. However, there may be cases where the nature or purpose of an activity will be political because it so intrinsically involves the political beliefs of the people carrying on the activity that it takes its character from the expression of those beliefs. An example is a public meeting, the sole purpose of which is to express protest about a clearly political issue (see for example Williams v Council of Shire of Exmouth[1990] EOC 92-296). Some activities will be clearly political in their nature. Membership of or affiliation with a political party is one of these (Evershed v City of Geraldton[1995] EOC 92-745). But there are many cases in which the line of demarcation between political and non-political activities will be difficult to draw and will depend on the facts of the particular case.
13.On the face of the material provided with the complaint there is nothing to suggest that membership in the running ticket “Team Integrity” or indeed the opposing ticket “Ignite” involved a belief or activity of a political nature. It is a not uncommon practice to refer to the activities of the members of student governing bodies as being involved in “student politics”, however that description and the mere fact that these are elected student representatives, does not constitute an affiliation with a ticket or group which stood for an office involving any political activity in the sense that it bore on government – “on the form, role, structure, feature, purpose, obligations, duties, or in some other aspect of government” - #.
14.Moreover it seems to me that the complainant has no arguable case that his political beliefs or activity formed the basis or a basis for the decision to exclude him from after hours access. One could well imagine a case in which such an exclusion could have serious consequences for the manner in which an elected student representative might discharge the responsibilities which the office attracted. Hence I reject the submission that such circumstances were necessarily of a trivial nature, or that a complaint made based upon it was necessarily a trivial one.”
This passage was considered and applied by the Tribunal by Member Forest, as he then was in Sherman & Anor v Grady & Anor [2008] QADT 7. There, after considering the passage just quoted from Jones v Jacobs and Clark Mr Forest said:
“20.After discussing some of those cases, Mr. Murdoch submitted that “political belief or activity”, as that term is used in s. 7 of the Act, should be considered by this Tribunal in that narrower sense. He submitted that a wider definition would not be appropriate for the following reasons:
o(a) a wider definition is not supported in the existing case law;
o(b) giving it a wider definition would effectively amount to straining the legislative language, something that at least Justice Brennan warned against in the High Court’s decision in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at p 372;
o(c) the very wide use of the term “politics” which in contemporary times is often used to describe general maneuvering to improve one’s status within an organization would not sensibly fit the Act as such a broad definition would likely cause the Act to bear upon “all manner of commercial and social activity”;
o(d) a wider definition is not supported by case law in which the term “political” has been considered in other human rights contexts such as immigration (and he cited relevant examples);
o(e) it would be inconsistent with the ordinary and natural meaning of the term “political” as set out in dictionary excerpts.
21.In his case, Mr.Sherman, readily took up the challenge posed by the submission that a narrower interpretation applies and that the term “political activity” means activity that somehow bears on government. He submitted[5] that as “government” means “the authoritative direction and control over communities, societies and states” it follows that the actions taken by one in an attempt to determine the direction and control of a ‘community’ such as Sanctuary Cove should therefore still be regarded as “political activity” even after a narrower interpretation is applied to that term.
22.Whilst I do accept the merit of Mr Murdoch’s submission that there is a need to read “political belief or activity” in the relatively narrow sense, I also understand MrSherman’s submission to be (based on an acceptance by him also of the correctness of the view that the narrower interpretation should be applied) that, objectively viewed, his activities that led to the termination of his Country Club membership fall within that narrower interpretation in any event.”
Later in his reasons, Mr Forest said:
“70.Having determined that, I must now determine, in light of my earlier consideration of the meaning of “political belief or activity” as used in the Act whether MrSherman’s involvement, as Chair of the OMC, in agitating against the commercial interests of the Second Respondent as he did, culminating in the making of an application for the Heritage listing of Sanctuary Cove amounted to “political activity”. Mr Murdoch submitted that it did not. He submitted that making an application for Heritage listing “does not constitute the pursuit of a course of action with a view to changing or influencing government.” He submitted that it is “merely invoking the provision of an Act of Parliament” and is properly described as administrative rather than political action. He submitted that people who make applications under statutes are not engaging in political activity. He submitted that none of Mr Sherman’s actions involved Mr Sherman and/or the OMC attempting to propose a course of action to change or influence government
71.Again, I do not accept those submissions. MrSherman, a member and Chair of a voluntary organization of members of the Sanctuary Cove community, was very actively involved in trying to advance the interests of the members of that organization particularly surrounding the issue of the approval or otherwise by the Minister of the proposed replacement Sanctuary Cove Development Control By-laws and the consequently dependent nature of the ongoing development of the Sanctuary Cove environs in which he and his fellow OMC members live and enjoy recreation. Ultimately, his commitment to his beliefs about how the Sanctuary Cove Community should be shaped into the future led him to be involved in the application to Heritage list the entire Sanctuary Cove Resort precinct.
72.Sanctuary Cove is unique in that its development as a community is separately governed by its own piece of State legislation. However, just as I would consider any resident of Queensland who became involved in community agitation about the nature of development in his or her local suburb or community, and who became involved in an application to Heritage list a part of that suburb or community, as being involved in activity that bore on the role or the purpose or the obligations and duties of government, so do I find that MrSherman involvement in that sort of activity within his own community was involvement in activity that bore on government. Accordingly, I find that the activity of MrSherman that was the direct cause of the termination by the Second Respondent of his rights and privileges in respect of the Country Club, most particularly his involvement in the application for Sanctuary Cove to be Heritage listed, amounted to “political activity.” I do not consider it to be merely activity that can properly be characterized as just part of an administrative procedure.
73.For the Respondents, it was submitted that if I find this I must then be satisfied that MrSherman was subjected to less favourable treatment than a person who did not engage in the same ‘political activity’ would have been subject to in circumstances that are the same or not materially different. It was submitted that it was MrSherman’s failure to resile from comments that the Respondents and their legal representatives described as misleading, defamatory and unfounded and his failure to remove the material described as such from circulation that resulted in the termination of his membership. It is submitted that by terminating his membership in such circumstances, he was treated in a manner in which any person who made untrue, misleading and defamatory statements about the Respondents would be treated. I do not accept that submission.
74.First, I have found, notwithstanding the Respondents’ assertions that the reason they terminated all of his rights in respect of the Country Club was his failure to resile from allegedly defamatory, misleading and unfounded comments and his failure to remove that material from circulation, that MrSherman’s membership was principally terminated because he had been involved in ‘political activity’ against the commercial interests of the Second Respondent that culminated in the making of an application for Sanctuary Cove to be Heritage listed and that the termination was part of a campaign to have him or others withdraw the application. I do not accept that it was because he did not resile from comments he had made that the Respondents were unhappy with. Second, there is no evidence that any other person who was a member of the OMC Management Committee or otherwise involved in the publication of any of the statements complained of or the application for Heritage listing was treated in the same way and I do not accept that MrSherman acted alone in respect of all the matters the Respondents complained of. I find that MrSherman in being excluded from the Country Club, was treated less favourably than other members of the Country Club who had not been involved in the ‘political activity’ and even others who had. I am satisfied that it was MrSherman’s ‘political activity’ that was the reason for his less favourable treatment not his statements that he did not resile from when asked to. The alleged sanction of a person for defamatory and misleading statements (be those statements truly defamatory and misleading or not) or any other type of behaviour claimed to be unacceptable cannot be a cloak used to hide actual direct discrimination against a person on the basis of one of the attributes listed in section 7 of the Act.
There is some other authority which might suggest a broader definition of the terms and encompass a wider range of activity than that which bears upon government, its role structure, features, purpose, obligations, duties or in some other aspect of government. However, there have been no recent cases which have applied that broader approach. The narrower approach was adopted and applied by Anderson J of the Western Australian Supreme Court in Ralph M Lee Pty Ltd v Fort (1991) EOC 92-357, where his Honour said:
“I do not consider there is any reason to give the word “political” in this Act a wider meaning than it bears in normal usage. In my opinion a complainant alleging discrimination on the ground of his political conviction is required to show that the conviction possessed by him and shown to have been the ground for his disadvantageous treatment by the respondent, was a conviction which had to do with government – the policies of government, the structure, composition, role, obligations, purposes or activities of government.”[4]
In the reasons of Mr Forest in the Sherman case, mentioned earlier, he cited with approval comments by the Western Australian EOT in Williams & Anor v Councilof the Shire of Exmouth (1990) EOC 92-296 to the effect that:
“Political activity refers to circumstances where a person advances opinions or proposes a course of action with a view to changing government policy, or influencing the administration of governmental transactions”.
It is, of course, a fundamental fact of political life in Australia that governmental activity is carried on at three levels, Federal, State and Local. In this case, the Council which employed the complainant was a local authority which conducted its activities by lawfully elected local councillors subject to a range of local authority statutory laws in place in Queensland. The responsibilities of the Mayor, Mr Berwick, were demonstrably political in the sense in which that term has been referenced in the authorities. A person, who is seen to have affiliations with such a person in the context of that political activity, participates in that narrow sense in the duties and obligations of government. That is so, not merely because of an affiliation with a person whose role is very obviously political, but because, in itself, the holding and discharge of the position, which Mr Carey held with the Council, was one which was also political activity in the same sense. One might in this context be seen as the political ally, or the political rival of a particular person holding political office. That affiliation or rivalry by itself, at least in a case like this, may easily be seen to fall within the definition of political belief or activity. Even absent such an affiliation or rivalry, that one might be seen to discharge one’s functions in favour of a particular political manifesto, policy, or one which might be seen to favour a policy approach to issues which support sound environmental protection or otherwise, is also within that category.
Similarly, it seems to me that the complainant’s de facto partner held political beliefs and engaged in political activity in that sense and her public opposition to the policy preferences of the respondent councillors, in her strident support of certain environmental groups and her published statements about the way in which obtaining in environmental matters ought be dealt with by the Council. Less obvious is her opposition, on the grounds of his political support for the respondents, or his principal less favourable approach to planning environmental matters, her lack of support, indeed opposition to the continuing tenure of the former Chief Executive Officer Mr Melchert. Again, if the termination of the complainant’s employment was because of his association with his de facto partner, and the relevant aspect of that association was the holding by her of those political beliefs or engaging by her in that political activity, then his termination was unlawful, and in contravention of sections 7(j) and (p).
In the respondents’ submissions, it is contended that, as a senior council officer, the mere fact of his holding a relationship with the Mayor and other councillors is insufficient to constitute political activity. The respondents contend that to hold otherwise would mean that the acts of every public servant discharging their employment or contractual functions amounted to engaging in political activity. Secondly, the respondents contend that his membership of some political activist group or, his relationship with an activist from that group or his relationship with the Mayor did not constitute political activity. First, the submissions miss the fundamental point, which is that the activity to which the Act directs itself is discrimination on the basis of political belief or activity. For that purpose, in a case like this, the focus is to be directed at the basis for the discriminatory conduct, not precisely what activity in fact, or in some objective view it might be said that the victim of discriminatory conduct engages in. So to take the example of the decision in Byrne v the State of Queensland referred to earlier, the complainant was a senior public servant who discharged her administrative responsibilities without there being any suggestion that she personally carried on any political activity whilst she discharged them. However, the discriminatory conduct in question was to terminate her employment on the basis of what was perceived or believed to be her political beliefs or activities, or affiliations of persons or entities, in that case a political party, which actually had or was perceived by the offending party to reflect some political belief or activity.
In this case, it matters not whether the complainant himself engaged in any political activity or had a political belief when he discharged his responsibilities as an employee of the Council. What is relevant, is whether the discriminatory conduct, i.e. his termination by the respondents, was on the basis of political belief or activity, either his, or someone else’s with whom he may have been associated. Hence, even were it shown that Mr Carey himself had absolutely no political beliefs nor engaged in any political activities himself, the fact that he might be perceived to be favourably disposed to or even work for someone who was seen as the political opponent of the discriminating party would be sufficient to meet the test. The termination of Mr Melchert had occurred for political reasons related to preventing the appointment by the Minister of an administrator to the Council. Likewise, to terminate his employment as an act of political retribution, as I hold that it was, is an act done on the basis of political activity.
The respondents also make the submission in this context that the termination of the complainant “was not a political act, but an administrative one” provided for by the employment contract. It is said that the termination of the former CEO, Mr Melchert by the Mayor, with whom it may be assumed the complainant was seen to be associated, was an “administrative function” concerning an employee. Again, that submission misses the point, which is that the proper focus is upon the “basis for” the alleged discriminatory conduct. If the motivation to terminate the complainant’s employment was a form of political payback against a political opponent, by the removal of a loyal supporter or employee of that political opponent, then there is no reason why, on the facts of this case, that conduct is not properly described as conduct which occurred on the basis of political activity, albeit not the complainant’s own political activity. I need not decide, on the facts of this case, whether that would still be the case, were there no political activity involved in the termination of the CEO because, for example, that termination had been affected by the complainant himself and that was thought, perhaps, by the respondents to be improper or inappropriate for reasons that were unrelated to political activity. That category of conduct which the respondents’ submissions would seek to describe as “merely administrative” did not arise for consideration on the case for either the complainant or the respondents.
The effects of Section 240 of the Local Government Act 2009 and Section 102 of the Anti-Discrimination Act 1991
Notwithstanding my finding that the conduct of the second to fifth respondent councillors was such as to cause the Council to engage in prohibited acts of discrimination, and for which the first respondent is statutorily liable, those respondents contend that they were entitled to an “indemnity” provided for in section 240 of the Local Government Act 2009. Section 240 provides as follows:
“Indemnity for Councillors
1.A councillor does not incur civil liability for an act or omission done honestly and without negligence under this Act.
2.A liability that would, apart from this section, attach to a councillor attaches instead to the local government”.
For the complainant, it is submitted that the respondent councillors’ conduct was in breach of their obligations under section 229 of the Local Government Act 2009, which requires councillors to serve the overall public interest, and that an act of political vengeance is not one in the public interest. There is, however, no limitation implicit in section 240 that requires conduct done under the Act, to be done in every way in compliance with the duties of councillors under the Act, including the duty to act in the overall public interest. It seems to me to be unquestionable that, in this case, the passing of a resolution for the removal of employment within the Council, of a Council employee, is an act which was both authorised by and done under the Local Government Act 2009. In Menzies & Ors v Owen[9], a councillor used Council meetings and published documents so as to engage in various acts of vilification on the basis of homosexuality. One of the allegations there concerned the tabling of a report that purported to contain statistics which were held to amount to vilification. The respondent there also relied on section 240 of the Local Government Act 2009, however the Tribunal rejected that contention on the basis that the handing of that report to the chief executive officer of the Council was not an act done “under” the Local Government Act 2009 within the meaning of section 240. Additionally, the member was not prepared to accept that the respondent had acted honestly, having heard no evidence from the respondent which suggested that he had acted honestly in that regard, the onus being proved that fact. Those are not the circumstances here.
[9] [2008] QADT 20.
There appear to be no other authorities which are directly concerned with the application of this section. Some guidance may, however, be derived from commentary in a text authored by Mr Fynes-Clinton, an experienced solicitor knowledgeable in the area of Local Government practice. The text is the Local Government Association of Queensland Inc Commentary Service for the Local Government Act 2009. At pages 126-128, the author discusses the scope of section 240 and makes the following points, which I summarise for convenience. First, the heading which refers to indemnity for councillors is misleading because the section is concerned with causing the subject of claims against a councillor personally to in fact be a liability of the Council. But the section does not give the councillor a right to claim indemnity from the Council.
Secondly, in general, councillors do not have personal liability for the consequences of Council decisions. Although councillors make the decisions, implementing them is an act of the Council as a separate corporation and liability for any consequences attaches to the Council and not the councillors personally.[10] Notwithstanding that, in principle, it is possible that a councillor could have some direct personal liability if, by law, a duty fell personally on a councillor. Hence even in the case of a claim that a councillor acted with malice in the discharge of powers, if done as a proper response to a genuine complaint, the councillor would have no personal liability. The decision in Deepcliffe Pty Ltd v Gold Coast City Council (2001) 118 LGERA 117 is cited in support. Torts such as misfeasance in public office or knowing misuse of public power are excluded under section 240 because they involve an element of dishonesty.
[10] Attorney General (NSW) v Webb (1885) 9 NSWR (EQ) 78.
Thirdly, there is no element of dishonesty or negligence, it is difficult to see how councillors could, as a matter of law, have personal liability in any event, so the operation of section 240 must be limited or as he puts it, “have no relevance”.
Fourthly, insofar as section 240 does have operation, it is clearly intended to provide a general immunity from civil suit. Hence it would tend to support its operation for conduct which might amount to discrimination under the Act, as long as it was not done dishonestly or negligently.
Fifthly, the requirement that the act be one done “under” the Local Government Act 2009 should not have a narrow interpretation, albeit not sufficiently broad to refer to anything done at a Council meeting or other Council event.
Sixthly, for the protection to apply “the relevant act or omission by the councillor must have a direct and integral relationship with performance of a function which could not be performed if the Act did not exist.” Referring to the just mentioned decision of Menzies & Ors v Owen, the author goes on to use it as a case where, although about alleged discrimination, the relevant comments, although made (allegedly) at a Council meeting, were not authorised by any provision in the Act, and were not inextricably linked with the performance of a councillor’s statutory role at the meeting. Leaving aside the Anti-Discrimination Act 1991, and the law of defamation, no legal authority is needed for one councillor to make a comment to another about another. That Council meeting was merely the background to the relevant actions, and they were not done “under” the Act.
There is no doubt that the complainant has a remedy against the first respondent Council. On the basis of the findings I have made as to the likely motivations of the Councillor respondents in seeking the removal of the respondent for employment in the Council, I am not prepared to conclude that they acted dishonestly. They may well have been acting under a misguided but genuine belief that this was an appropriate political response in a political context to other legitimate political events, which had occurred in the affairs of the Council. Even insofar as it is likely to have been an act of political retribution against Mr Berwick, or his supporter for the termination of the employment of Mr Melchert, it was nevertheless in my view not an act which can be said to have been done dishonestly and could not be said to have been negligent. In the circumstances, in my view, the exemption under section 240 applies to protect them from personal liability in this proceeding.
Even if I am wrong about the effect of section 240 of the Local Government Act 2009, there remains the operation of section 102 of the Anti-Discrimination Act 1991. Section 102, whilst prohibiting discrimination by a local government member in the performance of official functions, goes on to provide that that provision does not apply to discrimination on the basis of political belief or activity. Neither party addressed on the effect of section 102, however it seems to me that independently of the operation of section 240 of the Local Government Act 2009, section 102 would relieve the respondent councillors here from liability in any event for discrimination on the basis of political belief or activity, as I have found occurred.
Assessment of Compensation
In final submissions for the respondents, it was contended that an appropriate award of compensation under section 209 of the Act would be as follows:
1. Past loss of income $211,365.75
2. Future loss of income $421,795.78
3. Forced early repayment of loan $18,813.33
4. Hurt, embarrassment, humiliation and loss of reputation $100,000.00
5. Pain and suffering $50,000.00
6. Medical expenses $11,895.00
$813,869.86
I will deal with each of these components individually.
As to past economic loss, the figure which is sought is based on the assumption, in my view reasonably made, that the Cairns City Council would have applied the Code of Practice and continued to engage the complainant in an equivalent position on an equivalent salary to that which he would have up to the date of the conclusion of his existing contract on 6 November 2010. Taking into account the income which he would have received to date of $331,075.00, less the six month wage payment he received on termination, less other income totalling $119,709.25 he has been able to earn from other sources, gives an adjusted loss under this category of $211,365.75. As I understand it, this figure was not contested by the respondents. I would allow interest on that figure averaged over the period since March 2008 at 4% from the date which was six months from the date of his termination. For that purpose, I will allow interest for a period of two and a half years, in an amount of $21,136.00.
Future Economic Loss
Taking into account the current income earning opportunities, it is contended that the complainant is suffering a net weekly loss per week of $1,425.74. It is contended that this should be treated as his loss for a further 11 years till retirement age and discounted either by 15% or 33%.
Pursuant to clause 8.12.1 of the Transitional Code, if a contract of employment expired during the period of the Code’s application, which was to 16 March 2011, the contract was to be renegotiated or renewed or extended provided that the employee’s performance continued to be satisfactory. Obviously, that clause contemplates three possibilities, one of which is a mere extension of the contract, either to 16 March 2011 or perhaps to some other date. The evidence about what, if any, employment opportunities currently exist at the first respondent which, but for his termination in 2008, the complainant might have performed or been offered a position to perform, is completely unsatisfactory. There was no evidence led to show what the current position is at the Council. It is reasonable to infer that his employment would certainly have continued to 16 March 2011, and on that basis I would allow a further component, some of which obviously now includes past loss, and some of which is future loss to 16 March 2011 since 6 November 2010. Under this head, a period of 18½ weeks at an amount of $1,425.74 per week gives a total of $26,376. I would allow interest upon that at an amount of $375.00.
As to any future loss from after March 2011, it seems to me that in having regard to the complainant’s employment history, his attempts, successful and otherwise, to obtain alternative employment, including unsuccessful attempts to obtain employment with the first respondent Council itself, that it is unrealistic to proceed on the basis that he would in fact have been employed in an equivalent position on an equivalent salary with the first respondent for the next 11 years. He has, however, lost the opportunity or chance to have derived income from such employment. Doing the best that I can on the available evidence, I would allow a global sum for loss of chance associated with the opportunity to have earned such a salary in the amount of $50,000.00.
Loan Costs
The claim of $18,813.33 relates to consequential loss to him arising from the deprivation to him of an income source after his dismissal. He owned a property at Pottsville Beach in New South Wales. He had a loan over that property which he was required to service. Because of his termination, he was unable to make the monthly payments under that loan agreement and there were various costs and fees associated with that, which are set out in his second affidavit. In the end, he was able to sell the property and made an early repayment of the totality of the loan, but in respect of which there was an early repayment fees. In my view, these fees, totalling $18,813.33, were for losses which were incurred in consequence of his termination and are not sufficiently remote that they ought be disallowed. There is no suggestion that but for his termination, he would otherwise have sold the Pottsville Beach property and incurred those fees by earlier payout. I will allow that sum under this head.
His past medical expenses total $366.98. He otherwise seeks future medical expenses over a period of 15 years of $8,984.10 plus costs of psychotherapy sessions. The essential difficulty with this claim is, as I shall discuss in a moment, that many of the psychological and physiological conditions which he suffers and in respect of which this treatment would be required, are probably conditions which he would have suffered in any event. The medical evidence, and in particular the evidence of Dr Jetnikoff is that even by February 2007, the complainant had reached a point in which his psychological state had already deteriorated to its lowest point. In other words, to the extent that he suffered psychological consequences from his termination, they may or may not have caused his condition to be worse than they had reached for other reasons more than a year before his termination. I would allow an amount of $6,000.00 compensation, approximately half of the amount in respect of which the claim is made, as a global allowance for future medical treatment.
General Compensation
As to an award for general compensation for hurt, humiliation, loss of reputation and what might be described as pain and suffering, comprised particularly of his physical and psychological ailments, the assessment is problematic. There is no doubt that the first attempt to terminate him and the ultimately successful attempt were very public events and were the subject of media coverage. They would have been well known to friends, associates and fellow workers of the complainant. There is, however, little evidence to suggest that his reputation was in fact diminished by those who were aware of his dismissal. Mention is made in submissions for the complainant of various published articles about those events, but none of them seems to imply that in truth the complainant was guilty of some misconduct or was regarded by his peers as having acted inappropriately. The complainant does swear that he believed that a number of people within the local community believed he was guilty of some wrongdoing, but it is unclear whether any did so believe.
There is no doubt that his termination led to his losing employment within the Council, and the first respondent and that he has been forced out of Local Government since. He has become more reclusive in his dealings with the public, he has become more concerned about his financial circumstances. The events brought on considerable stress and he has lost considerable confidence in his own abilities. He suffers nausea, tearfulness, irritable bowel and other painful symptoms which he attributes to these events. He has suffered distress and depression, hopelessness, anger and low self esteem. But as I have said, many of these conditions, he was identified as having suffered to much the same level in February 2007. In my view, a reasonable award for these elements, both in respect of the hurt, embarrassment, and loss of reputation as well as the physiological and psychological consequences is an amount of $30,000.00. I would allow interest on that sum for a period of three years at the rate of 4%, an amount of $3,600.00.
In conclusion then, I order that the first respondent pay to the complainant an amount of $368,033.06, inclusive of interest by way of compensation for the identified contraventions of the Act. I dismiss the complaint against the second, third, fourth and fifth respondents on the grounds set out in these reasons. An apology has been sought from the second, third, fourth and fifth respondents, however in light of the dismissal of the complaint against them, it is not appropriate for there to be such an apology ordered.
In the complainant’s final submissions, an order was sought for the costs of the proceeding on the District Court scale. It is, of course, the usual rule in this Tribunal that parties pay their own costs[11], however there are exceptions to that rule. As Justice Wilson said recently in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29]:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100”.
[11] See sections 100 & 102 of the QCAT Act.
In the event that an application is sought to be made for a specific order for the payment of costs in some specific sum, I give liberty to the parties to apply for such an order, on appropriate notice.
P J Roney SC
Member
- AGLC
- Carey v Cairns Regional Council [2011] QCAT 26
- Case
- [2011] QCAT 26
- Decision Date
CaseChat Overview and Summary
The court considered whether the immunity provided by section 240 of the Local Government Act 2009 extended to claims of political discrimination. The plaintiff argued that this immunity did not apply to claims under the Anti-Discrimination Act 1991, while the council contended that the immunity was broad enough to cover such claims. The court found that the immunity did not extend to political discrimination claims and thus the council and the associated individuals could be held liable under the Anti-Discrimination Act 1991. The court further found that the plaintiff had been dismissed due to his political activities and associations, which constituted prohibited grounds of discrimination.
Carey was awarded compensation in the amount of $368,033.06. The court dismissed the complaint against the second, third, fourth and fifth respondents, finding that they were not involved in the decision to terminate the plaintiff's employment. The first respondent was ordered to pay compensation to the complainant.
Orders
Orders of the court
The first respondent shall pay to the complainant compensation in the amount of $368,033.06. The complaint against the second, third, fourth and fifth respondents is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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