Kelsey v Logan City Council
[2018] QIRC 53
•4 May 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kelsey v Logan City Council & Ors [2018] QIRC 053 |
PARTIES: | Kelsey, Sharon Rae Marie v Logan City Council & Smith, Timothy Luke & Dalley, Cherie Marie & Lutton, Russell Bruce & Swenson, Stephen Frederick & Smith, Laurence William & Pidgeon, Philip Wayne & Schwarz, Trevina Dale & Breene, Jennifer Rachael Julie |
CASE NO: | PID/2017/3 |
PROCEEDING: | Application for Interim Orders |
DELIVERED ON: | 4 May 2018 |
HEARING DATES: | 5 March 2018 |
MEMBER: HEARD AT: | Thompson IC Brisbane |
ORDERS: | 1. That the Order issued by Fisher IC pursuant to s 51 of the Public Interest Disclosure Act 2010 (Qld) and s 314 of the Industrial Relations Act 2016 (Qld) on 1 February 2018 is to be vacated effective from Friday 4 May 2018. 2. That pursuant to s 314(1)(a) of the Industrial Relations Act 2016 (Qld) and ss 51 and 52 of the Public Interest Disclosure Act 2010 (Qld): (i) Sharon Kelsey be reinstated to the position of Chief Executive Officer of the Logan City Council effective from 8.00 am on Monday 14 May 2018; until the hearing and determination of PID/2017/3; and (ii) Sharon Kelsey's employment is to be subject to the terms and conditions contained in her Employment Agreement (executed by the parties on 2 June 2017) as being applied at the date of the termination (7 February 2018). |
| CATCHWORDS: | INDUSTRIAL LAW – PUBLIC INTEREST DISCLOSURE – Interim Orders – Interlocutory Injunctions – Legislation – Witness Evidence – Was there a prima facie case – Balance of convenience |
LEGISLATION: CASES: | Public Interest Disclosure Act 2010 (Qld), s 13, s 38, s 39, s 40, s 42, s 43, s 45, s 48, s 51, s 52, s 514 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726 Queensland Nurses' Union of Employees AND RSL (QLD) War Veterans Homes Limited (RSL Care) (2003) 174 QGIG 393 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 Turner v Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 Jones v Queensland Tertiary Admissions Centre Limited [2009] FCA 1382 Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 134 Mastromanno v Temando Pty Ltd [2014] FCA 445 |
| APPEARANCES: | Mr C. Murdoch QC, instructed by Minter Ellison Lawyers for the Applicant. |
Decision
An Application was lodged by Sharon Kelsey (the Applicant) with the Industrial Registrar on 1 December 2017 pursuant to s 285 of the Industrial Relations Act 2016 (IR Act) and s 48 of the Public Interest Disclosure Act 2010 (Qld) (PID Act).
An Amended Application was lodged by the Applicant with the Industrial Registrar on 18 December 2017 pursuant to s 285 of the IR Act, s 48 of the PID Act and r 18 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (Rules).
Both of the aforementioned applications were the subject of consideration by Industrial Commissioner Fisher who in the course of proceedings issued Decisions and Orders on the following dates:
Decisions
· 1 February 2018 - Original Decision;
· 1 February 2018 - Reissued Decision; and
· 14 February 2018 - Interim Orders.
Orders
· 4 December 2017 - Order;
· 20 December 2017 - Order No. 2;
· 14 February 2018 - Order No. 3; and
· 27 March 2018 - Order No. 4.
Upon allocation to the Commission as constituted a Further Amended Application was lodged by the Applicant with the Industrial Registrar on 10 April 2018 pursuant to s 285 of the IR Act, s 48 of the PID Act and r 18 of the Rules. The decision sought was detailed as follows:
"1. An order pursuant to section 514 of the PID Act and 314 of the IR Act that the First Respondent must not consider or vote upon any resolution in respect of the Applicant's employment, whether pursuant to a probationary process or otherwise, until the completion of the contract term on 25 June 2021 with the First Respondent having leave to apply to vary the order on reasonable grounds.
2. An order pursuant to section 51 of the PID Act and section 314 of the IR Act that the Second to Ninth Respondents take no part in any resolution by the First Respondent in respect of the Applicant's employment or have any involvement, direct or indirect, in the development or provision of information for any such resolution of the First Respondent until the completion of the contract term on 25 June 2021 with the Second to Ninth Respondents having leave to apply to vary the order on reasonable grounds.
3. An order pursuant to section 314 of the IR Act that the First to Ninth Respondents pay damages caused by the First to Ninth Respondents to the Applicant.
4. Declarations pursuant to sections 451(2)(c), 464 and 572 of the IR Act that:
(a)the First Respondent has contravened section 285 of the IR Act.
(b)the Second to Ninth Respondents are taken to have contravened section 285 of the IR Act as a result of section 571 of the IR Act.
5. Orders pursuant to sections 572 and 574 of the IR Act for the First to Ninth Respondents to pay the penalties referred to in Column 4, Schedule 3 of the IR Act in respect of the corresponding contraventions and that those penalties be paid to the Applicant.
5.1 An order pursuant to section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated.
5.2 An interim order pursuant to section 314(1)(a) of the IR Act and sections 51 and 52 of the PID Act that the Applicant be reinstated or alternatively that the First Respondent recommence paying the Applicant's normal salary (including backpay to the date of her dismissal) until the hearing and determination of this proceeding.
5.3 An order pursuant to section 314(1)(c) of the IR Act and sections 51 and 52 of the PID Act that the First to Ninth Respondents pay the Applicant remuneration (including base salary superannuation and vehicle package) lost as a result of her termination on 7 February 2018.
5.4 An order pursuant to section 314(1)(e) of the IR Act and sections 51 and 52 of the PID Act to maintain the Applicant's continuous service with the First Respondent.
5.5 An order pursuant to section 545 of the IR Act that the First to Ninth Respondents pay the costs of the Applicant.
7. Such further order as the Commission sees fit."
This decision pertains only to the contents of clause 5.2 of the Further Amended Application in relation to an Interim Order pursuant to s 314(1)(a) of the IR Act and ss 51 and 52 of the PID Act that the Applicant be reinstated or alternatively that the First Respondent recommence the payment of Kelsey's normal salary and associated costs (including back pay from the date of dismissal) until the hearing and determination of these proceedings.
Legislation
The legislation relevant to the jurisdiction of the Commission to make the Interlocutory Orders is that of:
PID Act
"40 Reprisal and grounds for reprisal
(1)A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that -
(a)the other person or someone else has made, or intends to make, a public interest disclosure; or
(b)the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.
(2)An attempt to cause detriment includes an attempt to induce a person to cause detriment.
(3)A contravention of subsection (1) is a reprisal or the taking of a reprisal.
(4)A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
(5)For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission."
"48 Right to apply to industrial commission
(1)An application for an injunction about a reprisal may be made to the industrial commission if the reprisal -
(a)has caused or may cause detriment to an employee; and
(b)involves or may involve a breach of the Industrial Relations Act 2016 or an industrial instrument under that Act.
(2)The application may be made by -
(a)the employee; or
(b)an industrial organisation -
(i)whose rules entitle it to represent the industrial interests of the employee; and
(ii)acting in the employee's interests with the employee's consent; or
(c)the Crime and Corruption Commission acting in the employee's interests with the employee's consent if -
(i)the employee is a public officer; and
(ii)the reprisal involves or may involve an act or omission that the Crime and Corruption Commission may investigate.
(3)The Industrial Relations Act 2016, section 473 applies to the application, but this part prevails if it is inconsistent with that section.
(4)If the industrial commission has jurisdiction to grant an injunction on an application under subsection (1), the jurisdiction is exclusive of the jurisdiction of any other court or tribunal other than the Industrial Court.
(5)Without limiting this section, the application is an industrial cause within the meaning of the Industrial Relations Act 2016."
IR Act
"314
(1)Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313 -
(a) an order for reinstatement of the person;
(b) an order for the payment of compensation to the person;(c)an order for payment of an amount to the person for remuneration lost;
(d) an order to maintain the continuity of the person's employment;
(e)an order to maintain the period of the person's continuous service with the employer;
(f)an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
(2)A person to whom an order under subsection (1) applies must not contravene a term of the order."
"473 Power to grant injunctions
(1)On application by a person under section 474 , the commission may grant an injunction -
(a)to compel compliance with an industrial instrument, a permit or this Act; or
(b)to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
…
(3)The commission must decide how notice of, and service of the injunction on, each of the persons to whom the injunction applies must be given.
(4)Without limiting subsection (3), the commission may order that the notice, and substituted service of the injunction, be given by advertisement.
(5)If a person to whom the injunction applies is given notice of the injunction, the person must comply with the injunction."
Witness Evidence
Affidavits of evidence were tendered in the proceedings from the following persons.
Applicant
· Applicant (four) filed 11 January 2018, 22 January 2018, 12 March 2018 and 16 April 2018;
· Darren Power (Power) filed 14 March 2018;
· Benjamin Jones (Jones) filed 14 March 2018.
First Respondent
· Logan City Council (LCC) "Employee A" - filed 12 April 2018;
Third Respondent
· Cherie Dalley (Dalley) (two) filed 22 January 2018 and 18 April 2018;
Fourth Respondent
· Russell Lutton (Lutton) filed 11 April 2018;
Fifth Respondent
· Stephen Swenson (Swenson) filed 11 April 2018;
Sixth Respondent
· Laurence Smith (L. Smith)(three) filed 18 January 2018, 12 April 2018 and 18 April 2018;
Seventh Respondent
· Philip Pidgeon (Pidgeon) filed 11 April 2018;
Eighth Respondent
· Trevina Schwarz (Schwarz) filed 11 April 2018; and
Ninth Respondent
· Jennifer Breene (Breene) filed 11 April 2018.
A further affidavit was filed on behalf of the Third to Ninth Respondents (inclusive) from:
· Aaron Bradford (Bradford) filed 18 April 2018.
Interlocutory Injunction - Principles
The Applicant and First Respondent relied upon Australian Broadcasting Corporation v O'Neill[1] as being the benchmark for the principles relevant to the granting of an interlocutory injunction which incorporated the content of an earlier judgement of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd[2] which identified the two main enquiries to be made:
"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is probability that at the trial of the action the plaintiff will be held entitled to relief…The second enquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."
[1] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
[2] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
The Third to Ninth Respondents cited authorities relevant in the granting or otherwise of interlocutory injunctions being:
· Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd[3];
· Samsung Electronics Co. Limited v Apple Inc[4];
· Queensland Nurses' Union of Employees AND RSL (QLD) War Veterans Homes Limited (RSL Care)[5].
[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726
[4] Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156
[5] Queensland Nurses' Union of Employees AND RSL (QLD) War Veterans Homes Limited (RSL Care) (2003) 174 QGIG 393
It was accepted that the Commission had jurisdiction under the PID Act and the IR Act to grant an interim injunction to remedy the effects, stop or prevent action to prevent a reprisal and adverse action.
Was there a Prima Facie Case
Applicant
The Applicant held the view that there existed a probability that the Applicant had an entitlement to relief at trial for reasons that included:
· the Applicant had made a public interest disclosure pursuant to s 40(1) of the PID Act;
· the Applicant had a workplace right for the purposes of s 284 of the IR Act and had exercised that right in accordance with s 285(1)(a)(ii) of the IR Act;
· a person had caused a detriment to the Applicant pursuant to s 40(1) and Schedule 4 of the PID Act;
· the termination of the Applicant's employment was an adverse action taken against her pursuant to s 282(1)(a) of the IR Act; and
· the detriment had been caused because the Applicant had made a public interest disclosure and the adverse action taken against the Applicant because she had exercised a workplace right in contravention of s 285 of the IR Act.
The First to Ninth Respondents were said to have engaged in a range of conduct that had contravened both the PID Act and the IR Act in respect that they had:
· sought and prejudiced the probation and probation review process of the Applicant;
· undermined and sought to intimidate the Applicant in the course of undertaking her role as the Chief Executive Officer (CEO) of the First Respondent; and
· through the Second Respondent's conduct, sought to cause a detriment to the Applicant for the purposes of impacting the First Respondent's view of the Applicant.
In particular the actions of the Second Respondent (T. Smith), Third Respondent (Dalley), Fourth Respondent (Lutton), Fifth Respondent (Swenson), Sixth Respondent (L. Smith), Seventh Respondent (Pidgeon) and Eighth Respondent (Schwarz) had been such that it indicated an intention to prevent the Applicant continuing her employment as well as having undermined the Applicant in her role as CEO.
The actions of the First to Ninth Respondents had been substantially taken because of the Applicant having made a public interest disclosure with those actions involving a breach of the adverse action provisions of the IR Act as a result of the exercising by the Applicant of her workplace rights.
The actions of the Third to Ninth Respondents had cause the Applicant to suffer loss and damage that included the loss of her remuneration package and had exposed her to legal costs.
Also of particular relevance was that, notwithstanding a positive probation report (Hunter Report), the Applicant's employment was terminated without any reasons for termination having been provided by the Respondents and it was the case that the evidence presently before the Commission was such that a prima facie case had been established by the Applicant.
The Applicant by way of a response to the arguments presented by the First to Ninth Respondents maintained that:
· a prima facie case had been made that the reprisal action and adverse action had been taken against the Applicant in contravention of the IR Act and the PID Act; and
· the Applicant's employment had been terminated by the First Respondent as a result of a vote of the Third to Ninth Respondents because of the complaint made by the Applicant.
The Applicant had clearly suffered a detriment as a consequence of the termination of her employment with admissions from the First Respondent that the vote of the Third to Ninth Respondents to terminate the employment was an adverse action. The Fourth to Ninth Respondents admitted the decision to terminate the Applicant and this amounted to a detriment against the Applicant. The Third to Ninth Respondents conceded that the First Respondent was capable of causing a detriment to the Applicant.
The vote to terminate the Applicant was that of seven Councillors to five with the seven Councillors being the Third to Ninth Respondents with the other five Councillors voting to confirm the Applicant's employment.
Consistent with s 260(2) of the Local Government Regulations 2012 (LG Regulations) the Commission would need only be satisfied that two or three of the Respondent Councillors were motivated by reasons as alleged by the Applicant for a decision to be reached that the decision to terminate was a reprisal under the PID Act or adverse action under the IR Act.
The Applicant supported by Power in evidence confirmed that:
· at no time prior to reading the Third to Ninth Respondent's affidavits were they made aware of reasons for the Applicant's termination;
· at no stage prior to reading the Third to Ninth Respondent's affidavits were they made aware of performance concerns about the Applicant's performance; and
· the Hunter Report which was created as a new probationary process by the First Respondent was given little to no weight by the Respondents despite their involvement in selecting and approving the process.
The Respondents had confirmed their participation in the Hunter Report process but had now abandoned the process despite an overwhelming positive response from managers about the Applicant's work. The Respondents had also advanced trivial issues such as the Applicant's attendance at an event in costume, or where someone should sit in a meeting which was hardly credible in relation to the performance of a senior executive.
The reservations now expressed by the Third to Ninth Respondents were against generally positive dealings and comments with the Applicant prior to the making of the public interest disclosure with many of the criticisms now made inconsistent with the context in which those concerns had risen.
In terms of the conduct of the Respondent's evidence regarding the vote to terminate the Applicant the only joint discussion prior to the vote was focused on risk mitigation as opposed to genuine discussion and debate about her performance. Further references were made regarding the responses of a number of the Respondents to correspondence of 12 October 2017 in which they were informed of the public interest disclosure and the impact of the correspondence upon them.
Where there were multiple parties involved in a decision there had been findings which emphasised the importance of considering the reasoning of each person and the effect on the ultimate decision. They included:
· Leahey v CSG Business Solutions (Aus) Pty Ltd[6];
· Elliott v Kodak Australasia Pty Ltd[7]; and
· Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd[8].
[6] Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA at 1098
[7] Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
[8] Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
The Third to Ninth Respondents had a material effect on the decision to terminate the Applicant and thus the reasons for the decision must be considered in context and be established as being free of the alleged prohibited reasons. Such a conclusion cannot be reached on the filed materials.
The Fourth to Ninth Respondents refer to legal advice received only hours before the decision to terminate was made and it is unlikely that those Councillors all failed to discuss the vote before the advice was received. Any Councillor who establishes their reasons for voting were legitimate and free from any inappropriate reason would not be impacted by the making of Orders however it was established that all or some of the Councillors had contravened legislation and they should rightfully be restrained as set out in the both relevant Acts.
There was no guarantee of the reliability of the Third to Ninth Respondent's evidence remaining the same and in the affidavits of the Fourth to Ninth Respondents there is a basis to indicate that would not be the case.
The Applicant requires the Interlocutory Orders sought to enable her to protect her position and restore the status quo pending the hearing and determination of the substantive application. The Applicant had established a prima facie case in relation to the termination.
First Respondent
The application for Interlocutory Orders was opposed on the grounds that the primary application had little or no prospects of success and that the reinstatement of the Applicant as CEO of the First Respondent in circumstances where she is presently engaged against the Council, the Mayor and seven other Councillors could only lead to further conflict and dysfunction. Further the payment of all wages and backpay attributable to the termination constitutes a very significant and unwarranted impost of ratepayers which is an amount highly unlikely to be recovered in the event the substantive application fails.
In determining whether there is a serious question to be answered the evidence as a whole must be evaluated as it presently stands. The Commission as outlined in Australian Broadcasting Corporation v O'Neill[9] must find from the evidence, if it was to remain the same that there is sufficient likelihood of success to justify the preservation of the status quo pending the trial.
[9] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
The prima facie case relied upon by the Applicant was somewhat elaborate but nonetheless falsely designed to nullify the consequences of her having failed to reach an acceptable standard of competency to a majority of First Respondent Councillors. Having regard to the whole of the evidence presently before the Commission the assertions and contentions of the Applicant failed to support any sustainable course of action but were designed to control and/or avoid altogether any legitimate termination of her employment on merit grounds.
A chronology provided indicated that:
· Applicant entered into an employment contract on 2 June 2017 which contained a probationary period as follows:
"2.3 The probationary period
(b)The executive will be subject to a six month probationary period from the Commencement Date.
(c)During the Probationary Period, either Party may terminate the Executive's Employment upon the provision of two weeks' written notice, or, in the case of the Council, payment of two weeks of the Numeration Package in lieu of notice."
· Nominal expiry date of 25 June 2021 with a clause expressly allowing either party to terminate the contract at any time under conditions set out in the contract.
· On or around late September 2017 the Second, Third and Eighth Respondents (forming a Mayoral Cabinet) commenced a process of collating and documenting their opinions for the purposes of conducting a probationary review. On 10 October 2017 the Applicant as part of the probationary process was provided with a provisional draft document concerning her performance under the employment contract.
· The Applicant pleads that the process and content of the review led her to form a view the Second Respondent intended to terminate her employment. The view of the Applicant had no legal standing as that right was vested solely with the First Respondent.
· The asserted actions of the Second Respondent up to and including 10 October 2017 did not constitute adverse action as the Second Respondent was not the employer. In addition at the time no notification had been provided under the PID Act making retaliation of a public interest disclosure that had not yet occurred not factual at law.
· On 12 October 2017 the Applicant caused her solicitors to send a letter to the First Respondent and each of its members in which:
·concern was expressed about the course of the probation process;
·made a number of complaints against the Second Respondent; and
·made a disclosure under the PID Act.
No allegations were made as to the conduct or motives of any other Councillor.
· The letter (of 12 October 2017) also contained an accusation the Second Respondent intended to retaliate against the Applicant and of reserving her rights to seek injunctions preventing the First and Second Respondents taking steps to disadvantage her.
· The Applicant consequently commenced proceedings against the First and Second Respondents seeking an Interim Order in respect of voting on her employment whether pursuant to a probationary process or otherwise and a range of separate orders preventing the Second Respondent from involvement in the probation review.
· Following negotiations the First Respondent agreed to a different form of assessment and a report from an independent reviewer thus excluding the Second Respondent from the process.
· On 25 January 2018 the Applicant's claim for Interim Orders was heard by Industrial Commissioner Fisher who granted relief restraining the Second Respondent from participating in the probationary process but no such Order against the First Respondent. There was no evidence adduced in relation to the conduct of the Third to Ninth Respondents in these proceedings. The remaining Councillors were free to vote in respect of the Applicant's contract.
· On 6 February 2018, the afternoon before the vote was taken, the Applicant's Solicitors emailed a letter to the First Respondent's solicitors that asserted:
"…if individual Councillors vote for Ms Kelsey's termination they will have to individually justify the reasons for that decision when Ms Kelsey's matter comes to trial."
…
"(Ms Kelsey) reserves her right to amend her application accordingly, and assert that Councillors who voted…in favour of the termination of her employment have themselves individually retaliated against her in breach of the (PID Act) and the (IR Act)."
· On 7 February 2018 all Councillors (except the Second Respondent) met and decided to terminate the Applicant's employment with the Third to Ninth Respondents voting in favour of the resolution.
· On 22 February 2018 by way of a Further Amended Application the Applicant joined the Third to Ninth Respondents to the proceedings with allegations of retaliation or adverse action by these Respondents either individually or collectively.
There was no coincidence that it was only after the Third to Ninth Respondents identified themselves as persons who wished to terminate the Applicant's employment that they were joined in the proceedings. It was clear the Applicant had engaged in a strategy of equating disapproval of her continued employment with improper or unlawful conduct by mere allegation, inference and suspicion to remove from the decision making process each and every Councillor who had expressed their disapproval of her employment performance. The Applicant through the Further Amended Application seeks to remove clauses 2.3 and 10 from the employment contract thus providing her with a five year fixed contract.
The Applicant upon becoming concerned that the outcome of the probationary process may not have been favourable, engaged Lawyers to make written complaints, a public interest disclosure and demand probation processes be reviewed. The Applicant's efforts to change the probation process and the application for Interim Orders were about improving her prospects of a favourable outcome based on her concerns about the Second Respondent.
In short, the Applicant had sought to prevent any person who was legitimately dissatisfied with her performance as CEO from being permitted to make a decision in that regard and in utilising the mechanisms of the PID Act and IR Act to do this, without any proper foundation. The vast majority of allegations made against the Third to Ninth Respondents were misconceived and have no basis at law and it was not legitimate for a person such as the Applicant to make the highly damaging and defamatory allegations for the purpose of protecting herself against a decision by a majority as to the quality of her work.
There is no realistic basis upon the claims against the First Respondent can proceed and accordingly there was no serious question to be tried.
Second Respondent
The Second Respondent objected to the reinstatement of the Applicant pending the hearing of the matter in that the balance of convenience is against making such Order. The Second Respondent made no submission on the interim relief sought in regards to payment as that was directed towards the First Respondent as the former employer.
Third to Ninth Respondents
It was the case there was no serious question to be tried in respect of the termination claim. The submissions of the First Respondent regarding the chronology relating to the termination of the Applicant's employment on 7 February 2018 were supported.
The alleged contravention of s 285 of the IR Act not including termination could not constitute adverse action because they were not taken by the employer and were not within the scope of actual authority of the Third to Ninth Respondents. The actions of each individual in voting to dismiss the Applicant was not adverse action. The only adverse action was that of the First Respondent terminating the Applicant's employment.
In terms of the alleged contravention of s 48 of the PID Act, the circumstances were those previously mentioned in relation to the allegations around adverse action.
For the Applicant it was the case for s 285 of the IR Act she must prove that:
"The respondents took adverse action against the applicant; and
The applicant had exercised a workplace right as identified by the applicant."If those matters are proven by the Applicant then the onus reverts to the First Respondent to prove that it did not take the action for the prescribed reasons. If it cannot be established that the Applicant exercised a workplace right or that adverse action was taken against her then the case must fail. If the Respondent's reasons are accepted then s 285 of the IR Act will not be made out other than the exercising of a relevant right.
The submission dealt with the discharge of the reverse onus of proof citing a number of authorities that included:
· Board of Bendigo Regional Institute of Technical and Further Education v Barclay[10];
· General Motors-Holden Pty Ltd v Bowling[11];
· Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd[12]; and
· Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[13].
[10] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
[11] General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
[12] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726
[13] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Whilst for the purposes of the interlocutory hearing the Applicant does not have the benefit of the reverse onus, the fact that the reverse onus would be available to the Applicant at trial is a matter to be taken into account when assessing whether there is a serious question to be tried. See Police Federation of Australia v Nixon[14].
[14] Police Federation of Australia v Nixon (2008) 168 FCR 340
The question for the Commission is whether, if the evidence remains as it is presently, does the Applicant have a sufficient probability of success to warrant the making of an Order. The Third to Ninth Respondents had given thorough and detailed explanations of their reasons in voting to terminate the Applicant's employment, none of which were prohibited reasons that could be relied upon by the Applicant. There is an express denial that prohibited reasons were taken into account and if that evidence remains as it is now the Respondents will discharge the reverse onus and the Applicant's case will fail.
There was some question as to whether the Applicant's contention that she had exercised a variety of workplace rights from August 2017 that relied upon the PID Act, the Local Government Act 2009 (Qld) (LG Act) and the Crime and Corruption Act 2001 (Qld) (CC Act) fell within the definition of an industrial law within the meaning of s 284 of the IR Act. The Applicant's contention ought not be accepted for reasons cited in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd[15].
[15] Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222
However the Third to Ninth Respondents accepted that the correspondence to the First Respondent (dated 3 October 2017) was a complaint or enquiry in respect of her employment. It was also conceded that the commencement of these proceedings was the exercise of a workplace right.
The Third to Ninth Respondents conceded the First Respondent's conduct in terminating the Applicant's employment amounted to adverse action however the casing of one vote out of a collective does not amount to the taking of action as a vote in isolation had no legal significance. The individual votes only obtain legal significance when other votes are cast in the same manner.
It was accepted by the Third to Ninth Respondents that the First Respondent's reasons for acting in respect of the termination are to be found in the individual reasons of those persons who made up the majority of the vote.
The reasons relied upon by the Third to Ninth Respondents in voting to terminate the appointment of the Applicant were contained in written submissions which documented each Respondent's concerns. These included but not limited to:
Third Respondent (Dalley)
· demonstrated disregard for the development of functional working relationships with Councillors;
· not fully truthful to Councillors on more than one occasion;
· lacked comprehension of the way Queensland Local Government functioned;
· continuously made decisions without first consulting Council; and
· publically undermined her (Dalley's) professional ability.
Fourth Respondent (Lutton):
· perceived personal alignment with certain Councillors driving division amongst the Councillors;
· directing staff to refer to him as Councillor Lutton without consultation;
· disregarding request for information on legal advice sending information instead about counselling;
· disregard of Councillor's views on Committee seating arrangements;
· refusal to share information with Councillors in breach of the LG Act;
· failure to display budgetary or financial skills; and
· believed the Applicant had orchestrated the service of the Crime and Corruption Commission (CCC) warrants in a manner designed to cause the most embarrassment to those Councillors served.
Fifth Respondent (Swenson)
· perceived alignment with Councillors Power, Koranski and McIntosh by attending the Relay for Life event dressed in joint costume with Power;
· Applicant's alignment with these Councillors was driving division and mistrust amongst other Councillors with concerns about favourable treatment and breaches of Council confidentiality;
· Applicant had misled the Councillors about streaming reports;
· Applicant had sought to corral and oversee all information received by Councillors;
· Applicant's inclination to micromanage restricting many talented staff employed by Council from having their thoughts and ideas relayed to Councillors; and
· Applicant failed to listen or respect Councillors views on seating arrangements for Committees.
Sixth Respondent (L. Smith)
· Applicant had not shown any strategic or financial management skills;
· lack of judgement;
· overseen incorrect advice given to Councillors;
· failed to listen and respect views of Councillors;
· disregarded Councillor seating arrangements at meetings; and
· shown poor judgement by associating herself with Councillors Power and Koranski in attending the Relay for Life as part of their team.
Seventh Respondent (Pidgeon)
· no faith in Applicant's financial management abilities, not sufficiently engaged in the budgetary process;
· Applicant unwilling to work cohesively with Councillors on their vision for the City; and
· Applicant had not remained apolitical but had aligned with a number of Councillors causing division.
Eighth Respondent (Schwarz)
· Applicant had limited communication with Councillors and Council staff;
· aligned herself with Councillor Power (in costume) at the Relay for Life;
· Applicant had been unable to assist Schwarz in respect of an issue involving the Cedar Grove Waste Treatment Plant;
· Applicant filtered information received by Councillors;
· Applicant disregarded Councillor's views on seating arrangements at Committee meetings;
· Applicant failed to adequately and promptly respond to Schwarz's requests on four matters;
· poor management of Councillor complaints; and
· perception that the Applicant was unable to perform her role impartially due to her apparent preference for Councillors Raven, Power and McIntosh.
Ninth Respondent (Breene)
· Applicant was not genuinely interested in issues facing her Division;
· Applicant's inability to remain apolitical in her decision to align herself with those Councillors who openly oppose the Mayor created division and dysfunction with Council;
· Applicant's refusal to work collaboratively with, or respect the views of, Councillors;
· Applicant's "100 Day Report" failed to articulate any significant achievements or strategy for advancing Council's key objectives; and
· Applicant's performance during budgetary meetings was not satisfactory.
It was apparent that each of the individual Respondents had sound, valid and understandable reasons for voting to bring the Applicant's employment to an end. It was quite extraordinary that in the Applicant's short period of employment that each of the Third to Ninth Respondents were able to give at least one example of unsatisfactory performance which touched on their activities as Councillors.
The Third to Ninth Respondents expressly deny that any of the workplace rights or the public interest disclosure were a reason for the termination. The Third and Ninth Respondents were repeatedly warned by the CCC, the Solicitors for the Applicant and Lawyers for the First Respondent that the PID could not be taken into account when making their decision and each deposed they wanted to act consistently with that advice.
The Applicant's case was entirely inferential with no objective evidence to suggest the decision to dismiss the Applicant was taken for a prescribed reason. The Applicant's case was that the Third to Ninth Respondents:
· were allegedly politically aligned with the Second Respondent;
· changed their behaviour towards the Applicant after the PID was made;
· did not slavishly follow the Hunter Report;
· did not vote to formally exclude the Mayor from having any involvement in the interview process; and
· voted to terminate the Applicant.
These propositions have not been made out on the evidence or do not give rise to the inference which is sought to be drawn.
The evidence does not demonstrate the Third or Ninth Respondents were politically aligned together with the Second Respondent or of there being any formal or informal alliance between them. In most cases the Respondents campaigned independently from the Second Respondent and in one case the Mayor actively campaigned against one of the Respondents. An analysis of voting patterns of the Council records that since the 2016 election of the 773 votes recorded the seven Respondents only voted together as a "block" on eight occasions. The only evidence of an alliance is between the five Councillors who oppose the Second Respondent no matter what the issue.
The Third to Ninth Respondents deny any change in the way they interacted with the Applicant after she made the PID giving evidence that many of the alleged incidents were actually incidents where the Applicant had behaved inappropriately.
In terms of the Hunter Report it was unsurprising it was not followed by the Third to Ninth Respondents as it did not reflect properly their views on the Applicant's performance. The Report was nothing more than a survey of both Councillors and employees' views about the Applicant's performance and did not involve any assessment of the Applicant's performance. The elected Councillors chose to rely upon their own opinions when exercising their statutory duties. Ordinarily the Hunter Report would have constituted one limited component of a broader performance review process.
The non-exclusion of the Second Respondent at the probation meeting was entirely misconceived as there was legal advice as to the effect he was entitled to be interviewed by Hunter and there was no power under the LG Act to exclude him.
At the time of making the decision each of the Third to Ninth Respondents gave evidence of their reasons for terminating the Applicant as:
· all had valid reasons for making the decision on performance;
· were faced with advice from the CCC, and legal advice that it would be unlawful for a decision to be made to dismiss because of alleged workplace right of the making of the PID;
· had no personal interest in the PID; and
· there was no personal gain from termination either personal or professional.
The state of the evidence is that each decision maker had valid and sound reasons for dismissing the Applicant and there is no evidence to support that the Applicant was terminated for a prescribed reason. Consequently there is no serious question to be tried for adverse action or a detriment because the Applicant had made a PID.
Conclusion
On whether the Applicant had been the subject of an adverse action or detriment as a consequence of having exercised a workplace right in making a public interest disclosure against the Second Respondent the evidence before the proceedings is that on 7 February 2018 the First Respondent terminated her employment with the reliance upon the combined vote of Third to Ninth Respondents that had constituted a majority of the First Respondent Councillors at the respective LCC meeting.
The Third to Ninth Respondents conceded:
"…that the First Respondent's conduct in terminating the Applicant's employment amounts to adverse action and I concur that the concession represents the factual circumstances in this application."
The evidence in these proceedings if sufficient in nature to establish that the Applicant's termination by the First Respondent was an adverse action.
In determining whether a prima facie case had been made for the granting of the Interlocutory Order sought by the Applicant it is prudent to follow the precedent of Beecham Group Ltd v Bristol Laboratories Pty Ltd[16] that became the test following the inclusion in Australian Broadcasting Corporation v O'Neill[17] which makes mention of the two main enquiries to be made in such circumstances:
"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is probability that at the trial of the action the plaintiff will be held entitled to relief…The second enquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."
[16] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
[17] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
The Applicant claimed an entitlement for relief on the basis of having suffered an adverse action and detriment as a result of having made a public interest disclosure in respect of the Second Respondent that ended with the termination of her employment by the First Respondent on 7 February 2018.
The First Respondent argues that there was no realistic basis for the claims made against them and there was not a serious question to be tried with the Third to Ninth Respondents providing affidavits in the proceedings that refuted the termination of the Applicant had been for prohibited reasons.
The Third to Ninth Respondents in exercising their individual votes to end the Applicant's employment were said to have done so for valid reasons which related to concerns regarding the Applicant's performance.
To follow the criteria of Australian Broadcasting Corporation v O'Neill[18] the first enquiry to be made is whether if the evidence stands, there is a probability that the Applicant would be entitled to relief. The Applicant's case is that the termination of her employment on 7 February 2018 was for a prohibited reason by the First Respondent as a consequence the Third to Ninth Respondents having voted to terminate the Employment Agreement by the giving of two weeks' notice and subsequent payment of two weeks' salary.
[18] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
On the day of termination the Applicant was handed a letter of termination by the Third Respondent (signed by LCC "Employee A") acting as the CEO of the First Respondent. The termination letter amongst other things stated:
"At a special meeting of Council convened on Wednesday 7 February 2018, Council resolved to terminate your employment agreement, pursuant to clause 2.3(b), effective immediately, with payment of two weeks of your remuneration package in lieu of notice.
As a consequence of Council's decision, you will be paid two weeks of your remuneration package in lieu of notice, plus all other benefits and entitlements accrued up to, and including, Wednesday 7 February 2018. This payment will be paid to your back account by the close of business on Thursday 8 February 2018."
The correspondence contained an absence of reference to any reasons relied upon by the First Respondent for the decision to terminate the employment and it was only upon the filing of affidavits in these proceedings by the Third to Ninth Respondents that the Applicant was informed as to the reasons embraced by those seven individual Councillors in deciding to support the termination.
In terms of the Interlocutory Order it is necessary at this time to examine the evidence of the Third to Ninth Respondents, not necessarily in a forensic way but on its face as to whether that evidence at trial would remain in place or was there a likelihood on the balance of probabilities of that not being the case. In doing so I would firstly consider the Council meeting of 7 February 2018 and then matters relevant to the period of the lead up to that meeting.
LCC Meeting - 7 February 2018
The evidence of Power in relation to this meeting was unchallenged for the purposes of the Interlocutory Order hearing and in part is documented herein as follows:
· 7 February 2018 a Special Council meeting was held for the purpose of the Council considering "Whether Council should make a decision under clause 2.3 of the employment agreement entered into between the Council and the Chief Executive Officer";
· a motion to terminate the Applicant's employment was moved by the Sixth Respondent and seconded by the Eight Respondent. No one spoke for the motion therefore prohibiting the opportunity to speak against the motion;
· a vote to terminate the employment was resolved with seven for and five against. The seven for the motion were the Third to Ninth Respondents; and
· the resolution carried was that of:
"1.Pursuant to clause 2.3(b) of the Chief Executive Officer Employment Agreement:
(a)The Agreement be terminated by the giving of two weeks' notice; and
(b)The Chief Executive Officer be paid two weeks of the Remuneration Package in lieu of requiring the Chief Executive Officer to serve her period of notice.
2.[LCC "Employee A"][name removed] be appointed as Acting Chief Executive Officer until further Council resolution."
Power went on to evidence that no reasons for the decision to terminate the Applicant's employment were discussed during the meeting which he viewed as unusual because generally where there was disagreement on matters in relation to votes there was "some discussion regarding the outcome and why people voted as they did".
Counsel for the Applicant in the course of oral submissions stated:
"Curiously, there was, on the evidence before the Commission, no debate between councillors at the time that the motion was put in favour of termination as to the pros and cons of that issue. This is, of course, in respect of a decision that's being made in respect of an employee who is the CEO of the council, in a highly paid position, in circumstances where each of the individual respondents say that they were aware of the applicant's concerns but they may take into account a prohibited reason. But notwithstanding all of that, there's no attempt, it would seem, by any of those people who voted in favour of termination, to have any proper robust debate between themselves and the other councillors at the relevant meeting, no attempt by them to try and persuade the other councillors who voted against the termination in favour of their view, no suggestion that they were open to persuasion to a contrary view.
One might think that if any of these seven people who voted against the termination were open to persuasion in respect of a contrary view, that there would have been some opportunity for debate but there was none. So in the applicant's submission, the Commission ought to be troubled by this strange approach that was taken by the seven respondents who voted in favour of termination. If their reasons were genuine, why was there no debate? Why was there no opportunity to have a debate? Why is the applicant told only now as to what are said to be the reasons for termination?" [Transcript p. 2-11]
The motion regarding the termination of the Applicant interestingly had a second limb being that it endorsed the appointment of an acting CEO as the replacement for the Applicant in the same motion being obvious of a fait accompli in that the termination was likely to be carried by a majority.
A more usual approach would have been for a replacement motion to be moved separately upon resolvement of the termination.
On the matter of the appointment of an acting CEO there was evidence from the Third Respondent that on 7 February 2018 prior to the Special Council meeting to consider the Applicant's employment situation that as Acting Mayor she felt it was part of her duties that an "Interim CEO" was "prepared" if the Applicant's employment was not to be continued. In doing so she had "not taken into account the PID, the Council Complaint, the CCC Compliant or the 176B Compliant because those documents and allegations within them had no relevance to whether or not an interim CEO would be needed, in the event that [the Applicant's] appointment was not continued".
The only other evidence regarding the appointment of an acting CEO came from the Seventh Respondent who indicated that in the presence of all Councillors in a confidential meeting with the First Respondent's solicitors held prior to the full Special Council meeting on 7 February 2018. The Seventh Respondent at paragraphs 237 and 238 of his affidavit stated:
"237. Relevantly, at this confidential meeting, Cr Dalley raised the concern that, as the Councillors were to consider two resolutions (i.e. one to confirm Ms Kelsey's appointment, the other to terminate that appointment) the Councillors should consider an appropriate acting CEO should the Second Resolution be passed by the Councillors.
238. I believed this idea to be sensible idea, because if Ms Kelsey's appointment was terminated, the Council would need to act immediately to appoint someone to the role temporarily, as under the Local Government Act 2009 (QLD), the Council must have an appointed CEO."
The motion to appoint the acting CEO was absent of any debate at the Special Council meeting which on the face is somewhat unusual in that the positon had significant responsibilities pursuant to s 13(3) of the LG Act that included:
"(3) The chief executive officer has the following extra responsibilities -
(a) managing the local government in a way that promotes -
(i)the effective, efficient and economical management of public resources; and
(ii) excellence in service delivery; and
(iii) continual improvement;
(b)managing the other local government employees through management practices that -
(i) promote equal employment opportunities; and
(ii) are responsive to the local government's policies and priorities;
(c)establishing and implementing goals and practices in accordance with the policies and priorities of the local government;
(d)establishing and implementing practices about access and equity to ensure that members of the community have access to -
(i) local government programs; and
(ii) appropriate avenues for reviewing local government decisions;
(e) the safe custody of -
(i)all records about the proceedings, accounts or transactions of the local government or its committees; and
(ii) all documents owned or held by the local government;
(f) complying with requests from councillors under section 170A -
(i)for advice to assist the councillor carry out his or her role as a councillor; or
(ii)for information, that the local government has access to, relating to the local government."
Period Preceding 7 February 2018 LCC Special Meeting
In the period immediately prior the 7 February 2018 meeting there was similar or same evidence from the Third to Ninth Respondents about a series of events that occurred which were significant in terms of their conduct regarding the consideration on 7 February 2018 of the Applicant's employment.
5 February 2018 - CCC Correspondence
There was correspondence in-confidence forwarded by the Chairperson of the CCC to all Councillors of the First Respondent.
In the circumstances the author of the correspondence on information available to him said that it was clear all Councillors had some level of knowledge and interest in matters before the CCC and that the Council was considering the taking of some form of action in respect of the Applicant's contract of employment at a Special Council meeting to be held on 7 February 2018. He deemed it appropriate to inform both the Council and Councillors of certain sections of the Act regarding both potential victimisation and the duty to protect those persons who had assisted the CCC in undertaking its functions.
It was strongly recommended that any resolutions voted on or any motion considered should be carefully considered in light of ss 212, 343 and 344 of the CC Act. The Councillors were further informed of protections available to public interest disclosures under s 13 of the PID Act and of offences pursuant to s 40 and 41 of the PID Act.
6 February 2018 - Minter Ellison correspondence
The Third to Ninth Respondents were provided with correspondence from Minter Ellison (Applicant's solicitors) that had been forwarded to solicitors acting for the First Respondent and was interpreted by some as being a warning to all Councillors who may have voted to terminate the Applicant they would likely be joined in the claim against the First Respondent and face personal prosecution (Third Respondent). Another interpretation of the letter was that it was Minter Ellison advocating strongly on behalf of their client (Ninth Respondent) with a fellow Councillor finding the correspondence "very threatening and confronting" (Sixth Respondent).
7 February 2018 - Legal Advice
On the morning of 7 December 2018 there was a meeting of all Councillors with the exception of the Mayor attended by Counsel and Solicitors acting for the First Respondent. The topics discussed were:
· 5 February 2018 - CCC correspondence;
· 6 February 2018 - Minter Ellison correspondence; and
· legal obligations.
The evidence of the Third to Ninth Respondents was similar with little variance between their recall of the meeting in that they received legal advice to the effect:
· CCC advice to put all Councillors on notice in the strongest terms about their obligations to exclude the PID from their decision making. The advice should not been seen to influence how a Councillor would vote, to coerce or as a threat how to vote;
· Minter Ellison correspondence should be viewed as a warning that any Councillor who voted to terminate the Applicant's employment would likely face personal prosecution by being brought into the current proceedings; and
· to lawfully make their decisions Councillors needed to exclude from their mind the PID, associated material and those proceedings.
The Councillors were provided a range of material that included:
· copy of s 78 of the Criminal Code Act 1899 (Qld);
· copies of ss 212, 213, 342, 343 and 344 of the CC Act;
· copies of ss 38 to 43 and 45 of the PID Act.
The Councillors were also informed they were not obligated solely to rely on or be bound by the Hunter Report but that Report was only one of the pieces to be considered.
7 February 2018 Meeting - Deliberations of Councillors - Third to Ninth Respondents
The Fourth, Fifth, Seventh and Eighth Respondents gave evidence that at no time did they discuss the reasons for terminating the Applicant's employment with any of their fellow Councillors. They also acknowledged that it was unusual for Councillors not to discuss or debate their positions prior to voting however the exposure to the possible liability of civil and criminal proceedings was of concern.
[210]I accept the premise upon which ratepayers' monies ought to be expended as advanced by the First Respondent and I would be unlikely to favourably consider, the option to that of reinstatement, contained at clause 5.2 of the Further Amended Applicant whereby the First Respondent be ordered to pay the Applicant's normal salary without the requirement to undertake the role of CEO, effectively being paid by public funds whilst not presenting for work.
[211]I am aware that in certain circumstances Governments of all persuasions make decisions to suspend employees from duties on full pay and as elected representatives are entitled to make such decisions if they hold the view that this action would be in the best interest of the organisation however for the Commission to make such a decision would be at best, unusual.
Litigation involving the Applicant and the Respondents
[212]It was said to be inconceivable for the Commission to grant an interim injunction to reinstate the Applicant when she was currently engaged in litigation against eight of the twelve Councillors including the Mayor.
[213]One should turn their mind to the litigation in question and the reasons why such litigation was actioned in the first place. The Applicant's employment was terminated at the hands of the First Respondent following the carriage of a resolution to that effect at a Special Meeting of Council held on 7 February 2018. The Third to Ninth Respondents voted to terminate the employment.
[214]The Applicant subsequently initiated proceedings based upon a claim that she was a recipient of adverse action/reprisal as a consequence of having made a public interest disclosure against the Second Respondent with that identified action being in contravention of the IR Act and the PID Act.
[215]The Applicant in her previous role as the CEO at LCC had a right and obligation to instigate a public interest disclosure in the manner she had if she held reasonable suspicions in respect of the Second Respondent's conduct in public office. In her affidavit of evidence the Third Respondent [Exhibit 8] stated the following at paragraph 78:
"My attitude and opinion of Ms Kelsey did not change as a result of Minter Ellison making the PID, as Ms Kelsey had a right and obligation to make the disclosure, and thereafter it was up to the CCC to investigate and, if substantiated, take appropriate action."
[216]The litigation in question had its origin in respect of the alleged conduct of the Respondents in respect of the Applicant's employment and therefore in all probabilities to rely on the litigation to prevent the granting of the interim injunction sought under the circumstances is not accepted on its own as a reason not to grant the relief.
[217]Further in respect of the Councillors involved in the litigation there is evidence to the effect that they had never had regular "day-to-day" contact with the Applicant in any event and should an Interim Order of reinstatement be made by the Commission the contact between the Applicant and Councillors would be likely limited to formal proceedings such as Council and Committee meetings.
Lack of Trust and Confidence
[218]The Third to Ninth Respondents gave evidence regarding a lack of trust and faith in the ability of the Applicant to carry out the role of CEO in a competent manner however the reasons relied upon should be balanced against the content of the Hunter Report that found staff participants interviewed in the formulation of the Report were supportive of the manner in which the Applicant had performed whilst in the CEO role.
[219]In an affidavit [Exhibit 5] tendered in the proceedings on behalf of Jones, the Lead Organiser with the Local Government Team of the ASU, there was evidence of his attendance at a Union meeting where "members were outraged that someone [Kelsey] they held in such high regard had been treated in such a manner."
[220]He was later informed by the Organiser for the area, Union delegates and members that amongst other things:
"Sharon [Kelsey] had made a positive impact at Council and had visibly raised the morale and the tone of the workforce that having to return to a state of affairs that is anything than what existed under Sharon [Kelsey] is making people apprehensive."
[221]The Applicant maintained in the proceedings that she had support of five Councillors which was not the subject of challenge.
[222]The breakdown in trust and confidence in respect of the Applicant is (unsurprisingly) confined to those Respondents subject to litigation in these proceedings and there was no evidence that such a view had wider traction across the organisation.
Exposure to the Second Respondent should reinstatement be granted
[223]The Second Respondent expressed concerns regarding interaction with the Applicant if she was to be reinstated and in particular the possible exposure to further allegations of reprisal action in respect of his conduct in carrying out the mandatory functions of his role under the LG Act and also the potential to be in breach of an Order previously issued by Industrial Commissioner Fisher in the proceedings.
[224]In relation to the potential exposure to further allegations of reprisal action, if the Interim Injunction was granted to reinstate the Applicant there can be no guarantee in regards to those concerns only the expectation that both the Second Respondent and the Applicant would conduct themselves to a standard of conduct and behaviour that would behove persons of their professional standing in the re-establishment of a workable employment relationship.
[225]The Applicant in her affidavit [Exhibit 3] gave evidence regarding future conduct in the workplace should she be reinstated:
"89. I have been, and would continue to be, professional with the Mayor and all councillors.
90. This application relates to the decision the 7 Councillors made collectively in their role of councillors and my view of that process. I am confident that I could separate that from my interactions with them in the CEO role.
91. I would always be courteous and professional in my dealings with the Mayor and all councillors. I am confident we could move on during the hearing process and afterwards.
Further in an affidavit [Exhibit 6] filed by the Applicant on 17 April 2018 the following undertakings were given:
"(d) I feel comfortable interacting with the mayor and all councillors. However, if they have any reservations I would be happy to agree to a protocol which incorporates any reasonable adaptions to processes if this would assist councillors (including the Mayor) to feel more comfortable about my return for example, I would be happy to agree to a protocol which incorporates any reasonable adaptions to processes if this would assist councillors (including the Mayor) to feel more comfortable about my return for example, I would be happy to:
(i)attend mediation;
(ii)record all meetings and calls;
(iii)have an agreed third party present (as appropriate depending on the nature of the meetings;
(iv)only attend community events which all councillors are invited to."
The bona fides of the Applicant are viewed as appropriate and in the interests of establishing a workable relationship for the benefit of all parties to these proceedings.
[226]In respect of Industrial Commissioner Fisher's Order of 1 February 2018 I concede the argument advanced on behalf of the Second Respondent of potential impact on him in respect of undertaking his duties and if an Interim Injunction was to be granted in respect of reinstatement, the appropriate course would be to vacate the said Order in that circumstance.
Applicant's Criticism of the Second Respondent
[227]The Second Respondent made reference to evidence contained in the Applicant's affidavit [Exhibit1] that was critical of the Second Respondent as a reason why it would be impracticable to grant an Interim Injunction ordering the reinstatement of the Applicant to her previous role.
[228]On examination of the evidence at paragraph 191 of the affidavit it does confirm that the Applicant (at 12 January 2018) believed the Mayor was determined to have her removed from her employment and had expressed a view in the most forthright of terms.
[229]As mentioned earlier if reinstatement was to be ordered by way of an Interim Order the Applicant and Second Respondent would be bound to use their best endeavours to make the work relationship successful.
Third to Ninth Respondent's inability to work with the Applicant
[230]The majority of these Respondents indicated in their affidavits of evidence they could no longer work with the Applicant if she was to be reinstated due to a lack of trust and confidence.
[231]Whilst they are entitled to hold such views that in itself is not sufficient reason to prevent the Commission from exercising its legislative power pursuant to the relevant legislation.
[232]Councillors also have an obligation as elected representatives of Council to undertake their duties in the best interest of the Council and their Constituents and if that requires a level of interaction with the Applicant if she was to be reinstated then one would expect for the benefit of those they serve such an arrangement could be accommodated by all parties.
[233]Upon consideration of submissions provided by both the Applicant and the First, Second and Third to Ninth Respondents I have formed the view that the Applicant's circumstances and in particular her "dire" financial position would favour the balance of convenience being exercised in her favour in the granting of the interlocutory Interim Order for reinstatement to the role of CEO at the LCC and that any likely injury to the Respondents emanating from that decision would not be of a nature to support rejection of the application.
[234]The establishment of a prima facie case by the Applicant that there was a serious case to be tried in regards to adverse and/or reprisal action having been taken against her in contravention of the IR Act and the PID Act supports the finding of exercising the balance of convenience in her favour.
[235]Also weighted in favour of the balance of convenience being applied positively to the Applicant was the timeliness of a decision being released following the hearing of the substantive application. The matter has been scheduled for hearing commencing on 30 July 2018 initially for eight days with a further day allocated on 14 August 2018 should it be required. The complexity of the application, the voluminous amount of material for consideration and a somewhat heavy work schedule of the Commission would make it extremely unlikely that the decision would be available until December 2018 or thereabouts.
[236]For the purposes of the record I must address the submission of Counsel for the Applicant in respect of the resilience of the First Respondent regarding the Mayor being the subject of criminal charges, was soon to return to work and that a body of people who despite that situation had an expectation of Council being able to function and yet they would not be able to work with the Applicant in a productive and professional way if she was reinstated, should be viewed sceptically. With all due respect to Counsel whilst that submission might satisfy what is colloquially described as the "pub test" I have not considered such submission in my deliberations for reasons of relevance or lack thereof.
Findings
For reasons enunciated in the body of this decision it is my intention to grant the Interim Order for the reinstatement of the Applicant to her former position on the terms and conditions contained in the Employment Contract that were applicable at 7 February 2018 (termination date).
[238]I do not propose to grant relief in relation to a claim for backpay or other benefits relating to the Applicant's period of unemployment and if that is to be addressed it should be done so in the determination of the substantive matter. The same consideration applies in respect of other relief sought in the Further Amended Application.
[239]A further Order will be issued vacating an Order issued by Industrial Commissioner Fisher on 1 February 2018 for reasons given at paragraph 226 of this Decision.
Order
1.That the Order issued by Fisher IC pursuant to s 51 of the Public Interest Disclosure Act 2010 (Qld) and s 314 of the Industrial Relations Act 2016 (Qld) on 1 February 2018 is to be vacated effective from Friday 4 May 2018.
2.That pursuant to s 314(1)(a) of the Industrial Relations Act 2016 (Qld) and ss 51 and 52 of the Public Interest Disclosure Act 2010 (Qld):
(iii) Sharon Kelsey be reinstated to the position of Chief Executive Officer of the Logan City Council effective from 8.00 am on Monday 14 May 2018; until the hearing and determination of PID/2017/3; and
(iv) Sharon Kelsey's employment is to be subject to the terms and conditions contained in her Employment Agreement (executed by the parties on 2 June 2017) as being applied at the date of the termination (7 February 2018).
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