Elmes v Carpentaria Shire Council - [2016] QIRC 118

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Elmes v Carpentaria Shire Council [2016] QIRC 118
PARTIES:	Elmes, Neville James (Applicant) v Carpentaria Shire Council (Respondent)
CASE NO:	TD/2015/96
PROCEEDING:	Application for reinstatement
DELIVERED ON:	11 November 2016
HEARING DATES:	20, 21 and 22 June 2016
MEMBER:	Deputy President O'Connor
ORDERS:	The application is granted;(i) declare that the purported termination of the applicant on 19 August 2015 was invalid; Pursuant to s 274A of the Industrial Relations Act 1999, I (ii) That the applicant be reinstated to his former position with the respondent;(iii) The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and(iv) The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission.(v)
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - APPLICATION FOR DECLARATION THAT DISMISSAL WAS INVALID - Whether the failure to comply with ss 259 and 260 of the Local Government Act 2009 and ss 279 and 283 of the Local Government Regulation 2012 rendered the dismissal invalid - Whether the dismissal could also be considered harsh, unjust or unreasonable.
CASES:	Industrial Relations Act 1999 (Qld), ss 73, 74, 77, 78, 79, 274A Local Government Act 2009 (Qld) ss 197, 259, 260 Residential Tenancies and Accommodation Act 2008 Workers' Compensation and Rehabilitation Act 2003 s 232B Workplace Relations Act 1996 (Cth) (repealed) Local Government Regulations 2012 (Qld) ss 278, 279, 280, 283, 305. Promnitz v Gympie Regional Council [2015] ICQ 011 R v Saffron (1998) 17 NSWLR 395 Dare v Pullman (1982) 148 CLR 658 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 J Boag and Son Brewing Pty Ltd v Allen John Button (2010) 195 IR 292 Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218 CSR Viridian Ltd v Claveria (2008) 171 FCR 554 Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 Qantas Airways Limited v Christie (1998) 193 CLR 280 X v Commonwealth [1999] 200 CLR 177 Wadey v YMCA Canberra [1996] IRCA 568 Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 411
APPEARANCES:	Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320 Liddle v Lembke (1994) 127 ALR 342 Ms D Callaghan of Counsel for the applicant, instructed by Cairns Community Legal Centre. Ms T Fantin of Counsel for the respondent, instructed by Preston Law.

The application

On 26 August 2015 an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the 'IR Act') was filed by Neville James Elmes (the 'applicant') seeking the following orders:

"(A) Reinstatement in his former position (or nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 19/08/2015 and the date of reinstatement; or
(B) Re-employment in another position that the employer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QIRC 118
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the case of Elmes v Carpentaria Shire Council, the applicant, Elmes, sought reinstatement after being dismissed from his position as a firefighter with the respondent, Carpentaria Shire Council. The dispute was heard in the Fair Work Commission. Elmes argued that his dismissal was unfair and invalid due to procedural failures and that it was harsh, unjust or unreasonable.

The primary legal issues before the court were whether the failure to comply with specific sections of the Local Government Act 2009 and the Local Government Regulation 2012 rendered the dismissal invalid, and whether the dismissal could also be considered harsh, unjust or unreasonable. The court had to determine if the procedural shortcomings were significant enough to invalidate the dismissal and if the dismissal itself met the criteria for being harsh, unjust or unreasonable under the applicable legislation.

The court found that the procedural failures did indeed render the dismissal invalid, as the mandatory steps outlined in the Local Government Act 2009 and the Local Government Regulation 2012 were not followed. The court also found that the dismissal was harsh, unjust or unreasonable, as it was conducted in a manner that was disproportionate to the circumstances and did not allow Elmes an opportunity to respond to the allegations against him. Consequently, the court granted the application for reinstatement and declared the dismissal invalid. It ordered that Elmes be reinstated to his former position with maintained continuity of service and that the council pay him the remuneration lost due to the dismissal.

Orders

Orders of the court

The application is granted;(i)

declare that the purported termination of the applicant on 19 August 2015 was invalid; Pursuant to s 274A of the Industrial Relations Act 1999, I (ii)

That the applicant be reinstated to his former position with the respondent;(iii)

The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and(iv)

The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission.(v)

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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