Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4)
[2016] QIRC 123
•18 November 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 123 |
PARTIES: | Parer, Siobhan Maree v State of Queensland (Department of Justice and Attorney-General) |
CASE NO: | B/2015/45 |
PROCEEDING: | Application for remedies under s 120 |
DELIVERED ON: | 18 November 2016 |
HEARING DATES: | 21 and 22 July 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. Application dismissed. 2. Costs reserved. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REMEDIES - where remarks made by a manager about an employee - whether grievance lodged about a manager caused a review of the employee's files - where employee's supervisor made a complaint about the manager - where employee and supervisor suspended - where disciplinary process commenced - where applications filed - where consent orders issued and disciplinary process halted - where further applications lodged - where disciplinary process recommenced - where allegations substantiated - where disciplinary penalty of termination proposed. INDUSTRIAL LAW - ONUS OF PROOF - whether applicant required to prove existence of a reason in s 104(1) - where respondent bears reverse onus - where applicant claims she was dissatisfied with her industrial conditions - where industrial conditions claimed to include contract, implied contractual terms and the Public Service Act 2008 - where applicant made an employee complaint - whether complaint was made to a person with capacity to seek compliance with an industrial law - where applicant had participated in proceedings under an industrial law. INDUSTRIAL LAW - SUSPENSION OF EMPLOYEE - where applicant suspended under s 189 of Public Service Act 2008 - whether suspension was reprisal action - whether suspension unlawful - whether manner of suspension was prohibited conduct - whether employee suspended because she was dissatisfied with her industrial conditions and/or because she had made a complaint to a person with capacity to seek compliance with an industrial law. INDUSTRIAL LAW - DISCIPLINARY PROCESS - whether disciplinary process commenced because the employee was dissatisfied with her industrial conditions - whether disciplinary process commenced because the employee made a complaint to a person with capacity to seek compliance with an industrial law - whether disciplinary process recommenced because the applicant had participated in proceedings under an industrial law. INDUSTRIAL LAW - DECISION MAKING - whether decision makers were rubber stamps, willfully blind or innocent agents or instruments - where evidence not called - where documents not produced - where examination of reasoning process - whether substantial and operative reasons for conduct were prohibited - where allegations of bad faith. |
| CASES: | Industrial Relations Act 1999, s 104, s 105, s 120, s 122, s 122A Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2016] QIRC 056 Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2016] QIRC 082 Jones v Dunkel (1959) 101 CLR 298 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 Hot Holdings Pty Ltd v Creasy [2002] 210 CLR 438 |
| APPEARANCES: | Mr P.J. Callaghan, SC and with him Mr L.S. Reidy, Counsel, instructed by Susan Moriarty & Associates for the Applicant. Mr J.E. Murdoch, QC and with him Mr C.J. Murdoch, Counsel, instructed by Minter Ellison Lawyers for the Respondent. |
Decision
Siobhan Maree Parer has been employed in Crown Law for 14 years and, from July 2014, had been acting in the position of Assistant Crown Solicitor (ACS) supervising a team of approximately 12 lawyers. On 12 June 2015, she and a senior lawyer in her team, Jeremy Weston, were suspended from their employment. A disciplinary process commenced on 4 September 2015 with the first show cause notice being issued inviting Ms Parer to respond to nine allegations, with a number of sub-allegations. A second show cause letter was subsequently issued. For reasons given in the letter disciplinary findings were made but not all of the sub-allegations against Ms Parer were substantiated. The penalty of termination of employment was proposed. Ms Parer has instituted proceedings alleging that the suspension, the first show cause letter, the decision to find her liable for disciplinary action and the "threat" of termination were prohibited conduct under the Industrial Relations Act 1999 and seeks civil remedies.
1.HISTORY OF THE APPLICATION
This application (and related applications) have been intensively litigated resulting in eight decisions including this one from the Commission as constituted before and during the hearing of the substantive application. In addition, Deputy President Kaufman determined a challenge by Ms Parer and Mr Weston to the Respondent's claim of legal professional privilege over a number of documents. That decision is recorded in the transcript of 14 July 2016.
Applications B/2015/44 by Jeremy Weston and B/2015/45 by Ms Parer were filed pursuant to s 120 of the IR Act on 4 November 2015. A conference in each of the matters before Vice President Linnane was held on 18 November 2015 and consent orders were issued including dates for their responses to the show cause process. On 16 December 2015, the day before Mr Weston was due to provide his response, he and Ms Parer filed applications for declarations: B/2015/51 and B/2015/52.
On 7 March 2016, the Commission heard the Respondent's application seeking to dismiss the two applications for declarations as well as the Applicants' applications for orders about representation and joinder. A Decision[1] released on 1 April 2016 granted the application to dismiss Ms Parer's declarations application B/2015/52. The application to dismiss Mr Weston's declarations application was refused. The joinder application was granted to the extent possible and the application for Ms Black and Crown Law to cease to act for the Respondent was granted.
[1] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 037.
Both the Commission's decision to dismiss Ms Parer's declarations application and to disqualify Ms Black and Crown Law from acting for the Respondent were appealed. The Industrial Court issued a stay Order on the latter decision.[2] Both appeals were subsequently discontinued.
[2] State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer& Anor [2016] ICQ 13.
On 18 April 2016, Ms Parer and Mr Weston each filed an application for an interim injunction seeking to restrain the Respondent from taking any action to continue the show cause process until such time as the substantive applications were heard and determined. The applications were heard on 2 June 2016. As a result of those proceedings and subsequent discussions the Respondent gave an undertaking that the show cause process would not be progressed and no changes would be made to the mode of suspension on the understanding that the hearing of the substantive applications could be concluded in the week of 12 August 2016. In the event the matters could be so programmed the parties agreed it would not be necessary for the Commission to issue the decision in the interim injunction application. The hearing was scheduled accordingly and concluded within this timeframe.
On 27 April 2016 the Respondent made an application for the Commission to issue an Order under s 679 of the Act suppressing the evidence filed and the transcripts in matter numbers B/2015/44, B/2015/45, B/2015/51 and B/2015/52. The application was heard on 27 April 2016 and a Decision[3] was released on 17 May 2016. The application was dismissed. The Commission issued a subsequent Decision[4] on 20 May 2016 with Orders directed towards ensuring that certain information was not made publicly available.
[3] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2016] QIRC 056.
[4] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3) [2016] QIRC 058.
On 10 June 2016 Ms Parer and Mr Weston applied for Disclosure Orders in matters B/2015/44, B/2015/45 and B/2015/51. The matter was heard on 27 June 2016 and the parties were advised the following day of the rulings made by the Commission. A Decision[5] was released on 25 July 2016 incorporating the Orders for the Respondent to disclose to the Applicants certain categories of documents.
[5] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075.
A conciliation conference in relation to all three applications was chaired by Deputy President Bloomfield on 6 July 2016. It failed to resolve the applications.
Before the substantive matter was due to commence on Monday 18 July 2016, Ms Parer applied to amend the particulars of the application. The Respondent objected. On 20 July 2016 the Commission issued a Decision[6] refusing the application.
[6] Parer v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 076.
At the hearing on 19 July 2016, Senior Counsel for Ms Parer and Mr Weston advised that the applications by Mr Weston, B/2015/44 and B/2015/51, were in the process of being resolved.
During the course of the hearing, the Commission was required to determine an application to admit documents. The Commission refused the application.[7]
[7] Parer v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2016] QIRC 082.
2.THE APPLICATION
As mentioned, the initiating application for a remedy under s 120 of the IR Act was filed on 4 November 2015. A number of amended applications were subsequently filed. The application being considered by the Commission is the amended application filed on 10 June 2016. For ease, it will be referred to as "the application". Ms Parer's legal representatives confirmed in writing that this application is relied on for the purposes of the Commission's decision.
Ms Parer's application is as follows (particulars omitted):
"2A.The following final decision pursuant to s 105 of the Act, namely, findings that:
2A.1.In respect of the conduct suspending the employment of the Applicant ('the suspension conduct'):
(a)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Mr Mark Rallings in suspending the Applicant on 12 June 2015 for the reason that the Applicant was dissatisfied with her industrial conditions; further, or in the alternative,
(b)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Mark Rallings in suspending the Applicant on 12 June 2015 for the reason that the Applicant had made a complaint to a person having the capacity under the Public Service Act 2008 (the PS Act), an industrial law, to seek compliance with the law. (This ground and further grounds which refer to the PS Act are hereafter referred to as the 'Public Service Act ground').
2A.2.In respect of the conduct of Mr Rallings giving the show cause letter on or about 4 September 2015 (the 'first show cause conduct'):
(a)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Mr Mark Rallings in giving the show cause letter on or about 4 September 2015 for the reason that the Applicant was dissatisfied with her industrial conditions; further, or in the alternative,
(b)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Mr Mark Rallings in giving the show cause letter on or about 4 September 2015 for the reason that the Applicant had made a complaint to a person having the capacity under the Public Service Act 2008, an industrial law, to seek compliance with the law.
2A.3.In respect of the threat of termination in the show cause letter of 12 April 2016 (the 'threatened termination conduct'):
(a)The Respondent engaged in prohibited conduct when, by Ms Kerrith McDermott, it threatened to terminate the employment of the Applicant for the reason that the Applicant was dissatisfied with her industrial conditions; further, or in the alternative,
(b)The Respondent engaged in prohibited conduct when, by Ms Kerrith McDermott, it threatened to terminate the employment of the Applicant for the reason that the Applicant had made a complaint to a person having the capacity under the PS Act, an industrial law, to seek compliance with the law; further, or in the alternative,
(c)The Respondent engaged in prohibited conduct when, by Ms Kerrith McDermott, it threatened to terminate the employment of the Applicant for the reason that the Applicant had participated in proceedings under the IR Act, an industrial law.
2A.4.In respect of disadvantage or injury by the threat of other disciplinary action in the show cause letter of 12 April 2016 (the 'second show cause conduct'):
(a)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Ms Kerrith McDermott in deciding that the Applicant was liable to disciplinary action of a kind provided for under section 188 of the PS Act for the reason that the Applicant was dissatisfied with her industrial conditions; further, or in the alternative,
(b)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Ms Kerrith McDermott in deciding that the Applicant was liable to disciplinary action of a kind provided for under section 188 of the PS Act for the reason that the Applicant had made a complaint to a person having the capacity under the PS Act, an industrial law, to seek compliance with the law; further, or in the alternative.
(c)The Respondent engaged in prohibited conduct when it disadvantaged or injured the Applicant by the conduct of Ms Kerrith McDermott in deciding that the Applicant was liable to disciplinary action of a kind provided for under section 188 of the PS Act for the reason that the Applicant had participated in proceedings under the IR Act, an industrial law."
The Applicant also seeks a range of orders directed towards preventing her from continuing to be injured in her employment as a result of the conduct taken, reinstating her to the position from which she was suspended and payment of monetary sums in compensation and as a civil penalty. The orders sought will be set out and addressed later in this decision should the Applicant be successful in obtaining a finding from the Commission that the Respondent engaged in prohibited conduct for a prohibited reason.
RELEVANT LEGISLATION
The proceedings were brought under s 120 of the IR Act - the remedies provision of the IR Act which is enlivened if prohibited conduct has been engaged in for a prohibited reason. The meaning of "prohibited reason" and "prohibited conduct" is found at ss 104 and 105 of the IR Act. The onus of proof requirements are prescribed by s 122A.
All of these provisions are contained within Chapter 4 Freedom of Association. However, the purpose of this Chapter is to treat unionists and non-unionists alike.[8] The sections relied on for this application are set out below:
[8] Allied Express Transport Pty Ltd v Humphrey (2002) 169 QGIG 569, 571.
"s 104 Meaning of engaging in conduct for a prohibited reason for ch 4
(1)For this chapter, a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person -
…
(i)has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek -
(i) compliance with that law; or
(ii)the observance of a person's rights under an industrial instrument; or
…
(j)has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or
…
(l)is dissatisfied with the person's industrial conditions; or
…"
"s 105 Prohibited conduct for employers and principals
(1)This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor.
(2)The person must not, for a prohibited reason, engage in the following conduct -
(a)refuse to engage a person as an employee or independent contractor;
(b)terminate a person's contract of employment or contract for services;
(c)disadvantage or injure a person who is, or proposes to become, an employee or independent contractor;
(d)discriminate against a person in the conditions on which the person is offered a contract of employment or contract for services;
(e)in negotiating an agreement under chapter 6, discriminate between the person's employees because -
(i)some of the employees are members of an employee organisation, while others are not members of the organisation; or
(ii)some of the employees are members of a particular employee organisation, while others are not members of the organisation, or are members of a different employee organisation."
"s 120 Remedies
(1)If, after hearing the application, the commission is satisfied an entity has engaged in, or proposes to engage in, prohibited conduct it may order the entity -
(a) to pay a penalty of not more than the monetary value of -
(i) for a corporation - 135 penalty units; or
(ii) otherwise - 27 penalty units; or
(b)to reinstate an employee in -
(i)the position from which the employee was removed or dismissed because of the prohibited conduct or proposed prohibited conduct on which the ground was based; or
(ii)a similar position; or
…
(2)If the commission orders the reinstatement of an employee, the reinstatement must be on conditions at least as favourable as the conditions on which the employee was employed immediately before the employee's removal or dismissal.
(3)The commission may also -
(a)grant an interim or other injunction or make any other order it considers appropriate to stop the conduct or proposed conduct or to remedy its effects; or
(b)make any other order that is consequential to an order under this section.
(4)The commission may make more than 1 order under this section against the same entity."
"s 122A Proof of the reason for, or the intention of, conduct not required
(1) This section applies if -
(a)in an application under this part about an entity's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the entity to carry out the conduct for that reason or with that intent would constitute a contravention of this part.
(2)It is to be presumed, in proceedings under this part arising from the application, that the conduct was, or is being, carried out for that reason or with that intent; and unless the entity proves otherwise."
3.THE PARTIES, THEIR WITNESSES AND OTHER ACTORS
The Applicant: At the time the alleged prohibited conduct of suspension occurred, Ms Parer was acting in the position of ACS managing the Government Insurance and Risk team (GR2). She returned to her substantive position as a Senior Principal Lawyer when her 12 month contract as acting ACS concluded.
Ms Parer gave evidence that she had had a long and successful career at Crown Law, had been regularly promoted and had won an award for client service as well as receiving letters of appreciation from the Crown Solicitor. That she had been a well‑regarded lawyer was supported by the evidence of Sherman Oh and was not put in issue by the Respondent.
Jeremy Weston was a Senior Lawyer in GR2 at the time the alleged prohibited conduct occurred. Much of the factual context in relation to Ms Parer also concerns Mr Weston. He was suspended at the same time as Ms Parer and was also subject to a disciplinary process. A number of the allegations against Ms Parer concerned the performance of Mr Weston. For these reasons, it is not possible in this decision to isolate the events to Ms Parer only; of necessity, Mr Weston is drawn into the discussion.
The Applicant's witnesses: In addition to her own evidence, Ms Parer called the following witnesses:
· John Heath, Forensic Document Examiner;
· Sherman Oh, Principal Legal Officer; Crown Law; and
· Dr Gary Larder, Consultant Psychiatrist.
The Respondent: The Respondent is the State of Queensland represented through the Department of Justice and Attorney-General (DJAG).
Crown Law is an operational unit of DJAG. The role of Crown Law, or more precisely, certain officers of Crown Law, was the focus of much attention by Ms Parer. It is important to note that while the Director-General, the Crown Solicitor, and Jackie Hamilton, Assistant Crown Solicitor were mentioned in the particulars of Ms Parer's application as "persons in the entity involved" in the alleged prohibited conduct, it is only Mark Rallings and Kerrith McDermott who are nominated by Ms Parer as having engaged in prohibited conduct. Mr Rallings and Ms McDermott are the Commissioner and the Deputy Commissioner respectively of Queensland Corrective Services (QCS), which sits within DJAG.
At the scheduled commencement of the substantive proceedings, Ms Parer applied to amend the application by expanding the nominated Crown Law officers in the particulars. For reasons given in Parer v State of Queensland (Department of Justice and Attorney-General)[9] that application was refused. In essence the Commission decided it was far too late to make such significant changes when Ms Parer had always intended to include them.
[9] Parer v State of Queensland (Department of Justice and Attorney-General) (No. 3) [2016] QIRC 084.
The Respondent's witnesses:
· David Mackie, Director-General, DJAG;
· Joanne Sorbello, Barrister-at-Law;
· Sheridan Cubby, Executive Manager, Organisational Development (OD) Team and QA, Crown Law;
· Stuart Woods, Director-Human Resources, DJAG;
· Mark Rallings, Commissioner, QCS;
· Brendan Read, Director, KordaMentha Forensic; and
· Kerrith McDermott, Deputy Commissioner, QCS.
4.OVERVIEW
Preceding Events: Ms Parer and Mr Weston worked in the GR2 team. This team is responsible for personal injuries claims that have been made against the State. The evidence discloses that amongst other things, the solicitors in this team have responsibility to ensure that timelines set by the Personal Injuries Proceedings Act 2002 (PIPA) and the courts are met; to take instructions from their clients and to act on those; to provide quality, timely advice to clients and to correspond with claimants' solicitors in a timely and professional manner. Crown Law has one client in personal injuries litigation which provides most of its work, the Queensland Government Insurance Fund (QGIF).
On 18 February 2015, Ms Parer attended a bi-monthly meeting of Crown Law and QGIF managers. QGIF had proposed that once a claim was finalised it would have a Claims Officer complete a survey assessing the performance of the Crown Law legal officer and proposed it also operate in reverse. Helen Freemantle, a Deputy Crown Solicitor and Ms Parer's manager, requested that the survey be provided to Assistant Crown Solicitors rather than lawyers and said words to the effect of, "because someone like Jeremy Weston would say something stupid and ridiculous that would have to be fixed up later on."
Being concerned about Ms Freemantle's comments, Ms Parer raised them with a senior legal officer of Crown Law after the meeting. As a result of that discussion, Ms Parer's evidence is that she "would wait and see what effect it had on Mr Weston before reporting it further." On 13 March, Ms Parer met with Sheridan Cubby, Executive Manager, OD Team & QA, Crown Law to discuss a number of concerns she had about Ms Freemantle including issues of natural justice, use of staff resources and her comments about Mr Weston. Ms Cubby suggested that Ms Parer raise her concerns directly with Ms Freemantle.
On 16 March, before Ms Parer had the opportunity to raise her issues with Ms Freemantle, as she was on leave at that time, the QGIF Manager Claims sent an email to Ms Parer expressing concern about Mr Weston's work on a particular file, the M# file,[10] and requesting advice by the end of the week addressing a number of matters. Ms Parer responded on the same day advising that Mr Weston would forward the required advice in the specified time frame.
[10] The names of files have been removed for confidentiality reasons and are identified only by an initial and an octothorp.
Bill Dwyer, Director, Claims, QGIF, was disappointed with Ms Parer's response. On 19 March he telephoned Ms Freemantle at home (as she was still on leave at the time) to express his concerns about Mr Weston's performance on the M# file. He said he would be sending an email identifying QGIF's concerns about this. Mr Dwyer's email of the same day not only addressed this file but 12 other files as well. The evidence is unclear as to whether Ms Parer received a copy of Mr Dwyer's email but it is clear from her own evidence[11] that Ms Freemantle made her aware of the review.
[11] Affidavit 14 July 2016, paragraph 4.
On 20 March, Ms Parer informed Mr Weston of the comment made by Ms Freemantle on 18 February.
Ms Parer met with Ms Freemantle on 23 March and raised concerns about her comment at the meeting with QGIF on 18 February. In particular, Ms Parer expressed the view that the comment had impacted on the opinion QGIF had of Mr Weston and that it had prompted QGIF to express concern about the conduct of a particular file for which he had responsibility. According to Ms Parer (as Ms Freemantle did not give evidence), Ms Freemantle denied QGIF's opinion was related to her comment. Ms Parer said Ms Freemantle appeared very angry during the discussion.
About one hour later Ms Freemantle contacted Ms Parer to advise that she had spoken with Mr Dwyer, who assured her that QGIF's opinion had nothing to do with her (Ms Freemantle's) comment. Further, Ms Freemantle advised that QGIF were conducting a review of the files Mr Weston was handling.
Mr Weston approached Ms Parer on 23 March expressing his concern about the apparent increased scrutiny of his work by QGIF. Ms Parer suggested he put his concerns in writing and she would take it to management. Later that day, she received an email from Mr Weston referring to the M# file and expressing his concern about the tone of the email from QGIF. He enquired as to whether she was "aware of anything that may have happened or has been said in respect of me that has contributed to the recent change in behaviour from QGIF." He wished to try to resolve whatever issues existed.
Ms Parer forwarded Mr Weston's email to Ms Cubby and Ms Freemantle. In her covering email, Ms Parer requested "to speak to OD and a workplace lawyer on the best way to proceed." She continued:
"My concerns are that a few weeks ago comments were made to the client about Jeremy and within a short period of time we have started to receive complaints about his files. Whilst Jeremy had complaints from the client for a period of time, I note it has been 6-7 months since the last complaint, that is, until after the meeting. Helen and I have discussed Jeremy and this issue. Whilst one may have nothing to do with the other, if a complaint or claim was ever brought I consider it likely that an inference would be made that the two incidents are connected. I do not feel I can proceed further without clarification on the issue and how best to proceed."[12]
[12] Exhibit 6.
On 24 March, while on sick leave, Ms Parer sent an email to Ms Cubby advising that Ms Freemantle contacted her on 23 March. In that conversation, Ms Freemantle advised she had been talking to Mr Dwyer who said that QGIF were going to review Mr Weston's files. Further, they had been discussing the client survey and "the conversation of Jeremy came up". Ms Parer went on to express her concern about the apparent connection between Ms Freemantle's comment and the action being taken by QGIF. Ms Parer added that she was informing her of the situation and she was concerned that in light of his email the previous day Mr Weston may be considering pursing a claim against Crown Law.
The following day Ms Parer spoke by telephone with Ms Cubby. During that conversation Ms Cubby noted that Mr Weston's email did not indicate he was aware of Ms Freemantle's comment. Although Ms Parer's evidence given in cross-examination is that she advised Ms Cubby then of the conversation she had had the previous week with Mr Weston, this evidence was not included in any of her affidavits.
During this conversation Ms Cubby mentioned Mr Weston might need to be performance managed and advised that a meeting was being arranged for later that day to discuss Ms Parer's concerns.
Before the meeting with Ms Parer was held, Ms Cubby met with Ms Freemantle, Karen Watson, Deputy Crown Solicitor, Public Law Branch and Ms Hamilton, Assistant Crown Solicitor, Workplace Law team, to determine who would take the lead on the agenda.
The meeting requested by Ms Parer was attended by her, Ms Cubby, Ms Freemantle, Ms Hamilton, Ms Watson, and Susan Austin, Senior Principal Lawyer, GR2 team. Ms Austin attended because Ms Parer requested a support person on learning that more than Ms Cubby and a workplace lawyer were to be present. Ms Parer considered that the meeting might take a different direction to that which she understood it to be about.
It is common ground that the discussion included that Ms Parer would performance manage Mr Weston and she was provided with the relevant guidelines.
Ms Parer has a different recollection of the outcome of the meeting from Ms Cubby. Ms Parer's understanding is that she was to undertake a review of the M# file. Ms Cubby's view is that Ms Parer was to undertake a review of all of the files about which QGIF had raised concerns. This view is supported by an email attached to her affidavit from Ms Freemantle to Ms Parer (copies to Ms Cubby, Ms Watson and Ms Hamilton) dated 26 March that states, "it was agreed that you would review the M# file, provide me with copies of the complaints from QGIF and review the files contained in the email from Bill Dwyer on 23 March 2015." The review of the M# file was to be completed by 27 March and the other files were to be reviewed "as diligently as possible".
Ms Parer was absent from work on 26 March and did not respond to the email as by this time she was "very anxious, upset and struggling with what was going on". Ms Parer also took sick leave from 27 March to 2 April followed by a period of pre-arranged leave. She did not return to work until 20 April.
As a result of Ms Parer's absence, Ms Freemantle undertook the review of the M# file so that she could respond to QGIF's concerns. According to Ms Cubby, Ms Freemantle's review was time consuming.[13] Because of this and her desire that the process be transparent, and at the suggestion of the Crown Solicitor, Ms Cubby decided to outsource the remainder of the file reviews to external counsel. Ms Cubby sought advice as to the appropriate person. Ms Watson and Ms Hamilton recommended Joanne Sorbello. Ms Hamilton spoke with Ms Sorbello on 13 April to ensure she had no conflicts and had capacity to complete the review. Ms Sorbello was formally briefed by Crown Law to review five files, including the M# file, on 14 April. Because of her absence from work Ms Parer's was unaware that Ms Sorbello had been retained.
[13] Although Ms Cubby does not specify the amount of time taken, an email attached to her affidavit from Ms Hamilton advises that the review was completed on 1 April and the report finalised on 10 April 2015.
On 7 April, Mr Weston lodged a stage 2 grievance with the Crown Solicitor. On the same day, QGIF made further complaints about Mr Weston by email following its review of the files Mr Weston was handling.
One week later, on the same day that Ms Sorbello was briefed, Ms Parer lodged an employee complaint with Mr Cooper. In her complaint, Ms Parer identified two categories of complaint:
(i) unfair and unreasonable administrative decisions made by Ms Freemantle; and
(ii) unfair and unreasonable conduct by Ms Freemantle.
Each of these categories described a number of incidents. Ms Parer sought to be removed from Ms Freemantle's management.
Ms Cubby gave Ms Freemantle a copy of the complaint on 8 April. Her oral evidence was that Ms Freemantle looked surprised and was not happy.
The Crown Solicitor responded to Ms Parer's complaint on 5 May, advising that he was not taking any action in relation to the matters she raised and did not propose to provide her with the outcomes she sought. As Ms Parer was dissatisfied with the outcome, she escalated the matter to the Director-General of DJAG, David Mackie, on 19 May.
On receipt of the complaint, Mr Mackie engaged an external firm to investigate it.
The first report from Ms Sorbello was addressed to the Crown Solicitor and received on 28 May. It dealt with the M# file and one other.
The Suspension: During the week of 1 June 2015, Stuart Woods, Director - Human Resources, DJAG, became involved in the matters affecting Mr Weston and Ms Parer when he received a telephone call from Samantha Kane, Assistant Crown Solicitor, Workplace Law team.
Mr Mackie delegated his powers under the Public Service Act 2008 in respect of both Ms Parer and Mr Weston to Mr Rallings on 10 June. As the date was initially subject to challenge from Ms Parer, it is dealt with in more detail later in this decision.
On 12 June, Mr Woods provided Mr Rallings with a number of documents relating to the suspension of the two Crown Law officers.
Mr Rallings signed the suspension letters for both Ms Parer and Mr Weston on 12 June. They were suspended pursuant to s 189 of the PS Act.
The letters were delivered by Mr Woods and Monica Campbell, Manager of Safe Work and Healthy People, DJAG, at about 2.20 pm that afternoon. Ms Cubby also became involved when Ms Parer and Mr Weston did not immediately leave their offices as directed. Mr Woods accompanied Mr Weston to the lift and Ms Campbell accompanied Ms Parer to the ground floor.
By letter dated 26 June, Susan Moriarty and Associates, (SMA), a firm of Solicitors acting on behalf of both Ms Parer and Mr Weston, wrote to Mr Rallings seeking the revocation of Ms Parer's suspension on the grounds that "in substance and effect" the decision to suspend Ms Parer could be "characterised as an act of reprisal" in light of her unresolved complaint against Ms Freemantle. (A similar letter was sent in respect of Mr Weston.) Mr Rallings responded declining to revoke the suspension and rejecting the contention that he had taken the suspension decision in furtherance of any reprisal action or for any improper purpose.
The First Show Cause Letter: Mr Woods received the remaining reports from Ms Sorbello on 29 July and provided them to Mr Rallings.
On 3 August, Mr Rallings reviewed Ms Sorbello's further reports. Mr Rallings and Mr Woods discussed the next steps in the process on either 4 or 5 August.
As a result of that conversation, Mr Woods arranged for draft first show cause letters to be prepared by Crown Law. These were provided to Mr Rallings on 27 August along with material for his consideration.
The first show cause letter sent to Ms Parer made nine allegations against her, a number of which contained sub-allegations. Five allegations concerned her supervision of Mr Weston; two others related to the M# file; one concerned Ms Parer's supervision of another lawyer in her team and the last alleged, in effect, that she had misrepresented whether a letter had been sent to a claimant's solicitor.
Further correspondence ensued between SMA and Mr Rallings, including requests for extensions of time, provision of further information and document inspection.
Legal proceedings instituted: On 4 November, both Ms Parer and Mr Weston lodged applications pursuant to s 120 of the IR Act in the Commission. On receiving advice of these proceedings, Mr Rallings instructed the disciplinary process be stayed so that the legal process could take its course.
Separate conciliation conferences for each application were conducted by Vice President Linnane on 18 November. The result of Ms Parer's conference was that a consent Order was made whereby Ms Parer, amongst other matters, agreed to provide a response to the show cause letter by 11 January 2016.
On 16 December, both Ms Parer and Mr Weston lodged further applications in the Commission. Acting on advice from Crown Law conveyed through Mr Woods on or around 24 December, Mr Rallings decided that there was no requirement to further delay the disciplinary process. He considered that Ms Parer had had ample time and resources to respond to the allegations. Mr Rallings instructed Mr Woods of his view and to have prepared the second show cause letter. Mr Woods informed Ms Kane and Fiona Black, Solicitor, Workplace Law team, of Mr Rallings' position. However, Mr Rallings did not receive the draft letter before he departed on recreation leave in late February 2016.
Ms Parer did not respond to the show cause letter by the date specified in the consent Order.
The Second Show Cause Letter: When Mr Woods became aware in late February/early March 2016 of Mr Rallings' period of leave, he arranged for his delegation to be revoked by Mr Mackie and for Kerrith McDermott, Deputy Commissioner, QCS, to be given the delegation powers under the PS Act instead. Ms McDermott became the delegate to make disciplinary decisions in relation to Ms Parer and Mr Weston by instruments dated 16 March 2016. Because of an error in the instruments, the delegations were confirmed on 30 March 2016. By this time Mr Rallings had returned from leave. Despite this, the delegations remained with Ms McDermott.
The delegations given to Ms McDermott gave her authority to decide:
(i) whether the allegations that had been put to Ms Parer and Mr Weston in the first show cause notice were substantiated; and
(ii) if so, the appropriate disciplinary penalty.
Ms McDermott was given a large number of documents to consider and, because of this, she was given a briefing by a Crown Law solicitor on 22 March for about 1½ hours.
On 30 March, she was provided with the documents specifically relating to Ms Parer.
Ms McDermott concluded that the allegations had been substantiated and decided to issue the second show cause letter setting out her decision on the disciplinary findings and proposing the disciplinary penalty of termination of employment. Her letter to this effect was dated 12 April 2016.
5.THE PARTIES' CASES
This section provides an outline of the parties' respective cases. While the cases will be fleshed out when dealing with the various issues, this outline provides some context to the arguments advanced and the positions taken by each of the parties.
The parties have different views on almost all matters, including the inferences that should be made from the evidence, the application of the case law and the decision the Commission should make. One thing on which they agree is that the Commission is not required to make any decision in relation to the allegations made in the show cause letter.
(i) The Applicant's Case
Ms Parer's case is that she had an unblemished career in Crown Law up until the point that she raised her concerns about Ms Freemantle's comment made at the meeting with QGIF on 18 February 2015.
She claims that the review of Mr Weston's files by Ms Sorbello was a secret investigation which was deliberately concealed from her. Further, as she was not mentioned in Ms Sorbello's reports, there were forces in Crown Law which were working to disadvantage her in her employment. In her closing submissions Ms Parer nominates those involved to include Ms Freemantle, Ms Kane and Ms Black.
Ms Parer contends that someone in Crown Law was taking the initiative and acting deliberately in moving for a disciplinary process against her in circumstances where she was not mentioned in the Sorbello reports. Action against a supervisor for the deficiencies of a subordinate was unprecedented in Crown Law and any performance issues on her behalf should have been dealt with by "a quiet word" rather than a formal disciplinary process.
Ms Parer contends that Crown Law were acting deliberately, controlling the content of documents which were placed before Mr Mackie, Mr Rallings and Ms McDermott; the pace of the show cause process and the decision making by Mr Rallings and Ms McDermott. The effect of this was that none of them, especially the delegated decision makers, were aware of all of the relevant facts. She alleges that Mr Rallings and Ms McDermott "rubber-stamped" the decisions or were otherwise "wilfully blind" or "innocent instruments or agents".
The case advanced by Ms Parer is circumstantial. She contends there are multiple missing evidentiary links in the case advanced by the Respondent with the result that it has failed to discharge its evidentiary onus. The missing links include evidence the Respondent could have called but did not, for example, the three nominated Crown Law officers. The failure to adduce this evidence invites a Jones v Dunkel[14] inference. More importantly, the missing evidentiary links "reveal the control being exercised over the process from forces within Crown Law."
[14] Jones v Dunkel (1959) 101 CLR 298.
(ii) The Respondent's Case
The Respondent's case is summarised in its written closing submissions as follows:
"1. The Respondent denies that it engaged in conduct for a prohibited reason for the purposes of the Act towards Ms Parer.
2. There is simply no link between Ms Parer's complaints or involvement in these proceedings, and the disciplinary process taken against her. The Respondent had sound reasons to make the decision to commence and then continue the disciplinary process.
3. 'Reprisal' was not a substantial and operative factor."
The Respondent submits that Crown Law was no more than the legal advisors to the decision makers. Mr Rallings and Ms McDermott exercised their own independent judgment on the material that was before them and came to the conclusion that the suspension and disciplinary process was reasonable and appropriate given the serious deficiencies that had been uncovered.
6.WHAT DOES EACH PARTY HAVE TO PROVE?
Section 122A provides a presumption that the prohibited conduct has occurred because of a prohibited reason unless proved otherwise (the reverse onus).
Ms Parer contends the effect of this section is that she has no obligation to provide evidence of a prohibited reason or establish facts giving rise to a hypothesis of a proscribed reason for the conduct. Support for this submission is said to be found in the decision in McIlwain v Ramsey Food Packaging Pty Ltd[15] (McIlwain) where Goldberg J held there was no obligation on an employee to provide evidence of a prohibited reason.
[15] McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111.
The Respondent takes the opposite view, contending that prior to the reverse onus being invoked, it is incumbent on the Applicant to establish that she has one or more of the "protected characteristics" listed in s 104(1). The concept of "protected characteristic" is derived from the decision in Allied Express Transport Pty Ltd v Humphrey (Allied Express) where Hall P held:
"Section 105(2)(b) is an unusual provision. It does not render conduct unlawful. It renders conduct unlawful only if the conduct possesses one or more of the prohibited characteristics particularised at s. 104(1)."[16]
[16] Allied Express Transport Pty Ltd v Humphrey 169 QGIG 569, 571.
The Respondent submits that that case is authority for the proposition that if no s 104 characteristic is engaged then the Respondent cannot have engaged in prohibited conduct.
It is to be noted that the Allied Express decision was made in circumstances when the IR Act did not contain s 122A or an equivalent provision. Because of this, and given the paucity of decisions concerning the freedom of association provisions of the IR Act, it is useful to consider the federal authorities.
In Davids Distribution Pty Ltd v National Union of Workers,[17] (Davids) the Full Court of the Federal Court was considering under the Workplace Relations Act 1996 (Cth) (WR Act) the case of the dismissal of employees on the basis of their involvement in pickets. Section 298K of that Act was broadly consistent with s 104 of the IR Act and s 298V concerned the onus of proof. Except for where that section referred to "a person's or entity's conduct" and s 122A of the IR Act refers to "an entity's conduct", the provisions are substantially the same.
[17] Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463.
In discussing Davids in McIlwain, Goldberg J said, when referring to s 298V of the WR Act:
"[329]The conventional approach to this section is explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [109], in these terms:
'Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 507.' "[18]
After discussing other authorities and the perspectives of the parties in that matter, Goldberg J said:
"[334]The majority judgment in David's Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of 'proving otherwise' upon the respondents."[19]
[18] McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111, [329], [334].
[19] Ibid.
In my view, the passage relied on by the Applicant in McIlwain has to be read in the above context.
Whether an Applicant is required to engage one or more of the characteristics or circumstances in the prohibited reasons provision of the relevant legislation has been considered in many federal decisions. In Tattsbet Limited v Morrow,[20] (Tattsbet) Jessup J, with whom Allsop CJ and White J agreed, referred to the question of whether s 361(1) of the Fair Work Act 2009 (Cth) operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action. Section 361, which falls within the General Protections provisions of the FW Act, concerns the reverse onus of proof. He said:
"[119] … the long history of corresponding provisions in previous legislation (and) the many first-instance judgments of this court … has … treated as uncontroversial that the party making an allegation that adverse action was taken 'because' of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131, 167 [161]-[162]; Bahonko v Sterjov[2007] FCA 1244; (2007) 167 IR 43, 75-77 [96]-[101]; Lever v Australian Nuclear Science and Technology Organisation[2007] FCA 1251 at [27]; Police Federation of Australia v Nixon[2008] FCA 467; (2008) 168 FCR 340, 360-361 [68]; Rojas v Esselte Australia Pty Limited (No 2)[2008] FCA 1585; (2008) 177 IR 306, 321-322 [49]-[50]; Jones v Queensland Tertiary Admissions Centre Ltd (No 2)[2010] FCA 399; (2010) 186 FCR 22, 27-28 [10]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd[2011] FCA 333; (2011) 193 FCR 526, 578-579 [329]-[331]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)[2012] FCA 697 at [59]; Stephens v Australian Postal Corporation[2014] FCA 732 at [13]."[21]
[20] Tattsbet Limited v Morrow [2015] FCAFC 62; 321 ALR 305, [119].
[21] Tattsbet Limited v Morrow [2015] FCAFC 62; 321 ALR 305, [119].
A number of the authorities cited in this passage predate the adverse action provisions of the FW Act and concerned provisions in the WR Act which were the equivalent provisions to ss 104, 105 and 122A of the IR Act. Of particular relevance is the decision in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd[22] where Branson J held that s 298V does not allow an applicant to circumvent a finding that a proscribed circumstance under s 298K did not exist. This decision was cited with approval in a number of the decisions referred to by Jessup J in Tattsbet. Branson J said:
"[161]In respect of the allegation that the respondent injured Mr Burford in his employment, or altered his position as an employee to his prejudice, for the reason, or for reasons that included the reason, that Mr Burford had participated in proceedings under an industrial law. I have concluded in para 75 above, that Mr Burford did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.
[162]For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work."[23]
[22] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531.
[23] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531, [161], [162].
In light of these authorities and the consistency between the federal and state statutes, I consider that Ms Parer is required to establish that one or more of the proscribed circumstances in s 104 is engaged before the reverse onus is enlivened.
7.THRESHOLD ISSUES
The Respondent submits that there are two threshold questions the Commission needs to determine. Reframed to take account of the terminology used in the IR Act, these are whether:
(i) the prohibited reasons relied on by Ms Parer in respect of s 104(1) of the IR Act exist; and
(ii) the conduct complained of in the application falls within the definition of prohibited conduct in s 105(2) of the IR Act.
Did the proscribed circumstances exist?: Ms Parer's application identifies three prohibited reasons for the conduct of Mr Rallings and Ms McDermott. These reasons were expressed cumulatively and as alternatives. They are that she:
(i) is dissatisfied with her industrial conditions (s 104(1)(l)); and/or
(ii) has made a complaint to a person or body having the capacity under an industrial law to seek compliance with that law (s 104(1)(i)); and/or
(iii) (in respect of Ms McDermott's decisions) has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law (s 104(1)(j)).
(i)Is dissatisfied with industrial conditions
Meaning of "is dissatisfied": In Allied Express, Hall P considered at some length the statutory history of s 104. The prohibited conducted alleged in that case was dismissal because Mr Humphrey was dissatisfied with his industrial conditions. In deciding whether the prohibited conduct of dismissal was contemporaneous with an existing dissatisfaction with industrial conditions and that was the substantial and operative reason for the dismissal, Hall P had cause to consider the meaning of "is dissatisfied". His reasoning as to its meaning is relevant to the present matter.
After noting that other paragraphs of s 104(1) distinguished between the tenses, he held that "[t]he inference is that tense has been selected deliberately."[24] He referred to various authorities and concluded that when used with the participle "dissatisfied", the expression "is dissatisfied" indicates contemporaneity.
[24] Allied Express Transport Pty Ltd v Humphrey (2002) 169 QGIG 569, 571.
Hall P then considered the meaning of "dissatisfied" and held that given the origin of the word from the decision in Pearce v WD Peacock and Company Limited,[25] it could not be given its ordinary dictionary meaning. He held:
"The intent of the legislature was to use the word in the sense of the 'dissatisfaction' which will drive a demand sufficient, if refused, to found a finding of 'industrial dispute' in the constitutional, i.e.; the dissatisfaction must be both actual and enduring."[26]
[25] Pearce v WD Peacock and Company Limited (1917) 23 CLR 199.
[26] Allied Express Transport Pty Ltd v Humphrey (2002) 169 QGIG 569, 572.
Meaning of industrial conditions: The Particulars of Ms Parer's industrial conditions set out in Part 111 of Attachment A to her application state that they are the conditions and benefits under her contract of employment and the PS Act. In the "Further Particulars" of her application, she says her industrial conditions are also set out in her complaint to the Crown Solicitor of 14 April 2015.
The Particulars of her application identify the following industrial conditions which Ms Parer claims the benefit of under her contract of employment:
"(a) the condition of dignity, self-worth and self-esteem in carrying out her work;
(b) the opportunity to further her career;
(c) the right to earn her living and carry out her duties free of victimisation, bullying, harassment and arbitrary management decisions including by Ms Freemantle;
(d) the entitlement to job satisfaction; and
(e) the protection of her reputation as a legal practitioner, manager and employee."
The Particulars also set out following industrial conditions which are claimed to arise as a consequence of the provisions of the PS Act:
"(a) That in her personal conduct to Ms Parer and to persons managed by Ms Parer including Mr Jeremy Weston, Ms Freemantle observe the Public Service Act 2008, in particular section 26(1), the requirements of the Code of Conduct, and the provisions of sections 12H and 18 of the Public Service Ethics Act 1994.
(b) That Mr Cooper and Mr Mackie comply with the requirements of section 26(3) of the Public Service Act 2008 by managing the personal conduct of Ms Freemantle and take prompt and appropriate action to address unacceptable personal conduct by Ms Freemantle."
The Further Particulars of her application include a table setting out the dates Ms Parer expressed her dissatisfaction, the persons to whom she expressed it and the subject matter of the dissatisfaction. The matters contained in the table commence with Ms Parer's meeting with Ms Cubby on 13 March about Ms Freemantle's comment, follow with her meeting with Ms Freemantle on 23 March, the broader meeting on 25 March, then continue with her complaint to the Crown Solicitor and end with the elevation of her complaint to the Director-General.
[100]In her affidavit accompanying her application, Ms Parer says that the complaint set out a number of conditions of employment with which she was dissatisfied, including the following, which I have summarised:
(a) workload issues caused by decisions of Ms Freemantle;
(b) Ms Freemantle's refusal to provide assistance to manage the workload and refusal to backfill her position while she was on leave;
(c) Ms Freemantle's requirement to take on an extra file load when there was another available officer; and
(d) Ms Freemantle engaging in acts that undermined her authority as team leader.
[101]In her affidavit of 4 July 2016, Ms Parer's claim expands the list of industrial conditions arising under her contract of employment given in the Particulars of her application by adding the provision of a safe system of work and the (implied) term of "good faith" in the management and supervision of her as an employee.
[102]In her closing submissions, when referring to the provisions in ss 104 and 105 she relies on, Ms Parer identifies that she was dissatisfied with her industrial conditions as expressed through her complaint. Later in those submissions, Ms Parer expands the sources of her industrial conditions and specifically identifies the common law; terms implied into her contract of employment; her Position Statement; employer policies, procedures and "the like" and the IR Act.
[412]His evidence also showed that he considered there was objective evidence (from Visualfiles) to support Allegation 8 being made.
[413]I accept his evidence about the reasons he decided to issue the first show cause letter and they were not because of the reasons in s 104(1)(i) or (l) of the IR Act.
(iii) The Second Show Cause Conduct
(iv) The Threatened Termination Conduct
[414]The third instance of alleged prohibited conduct is Ms McDermott finding Ms Parer liable for disciplinary action under the PS Act. The fourth instance of alleged prohibited conduct is Ms McDermott's threat to terminate Ms Parer's employment. It is alleged that Ms McDermott engaged in each of the prohibited conduct because Ms Parer was dissatisfied with her industrial conditions; and/or had made a complaint under an industrial law to a person who had capacity to seek compliance with that law; and/or that she had participated in proceedings under the IR Act, an industrial law.
[415]It is convenient to deal with these two instances of alleged prohibited conduct together as the proposed penalty of termination was included in the second show cause letter. The reasoning is common between the decisions.
[416]Commission proceedings and the disciplinary process: On 4 November 2015, Ms Parer lodged the s 120 application in the Commission. A conference was held and a consent order made including that Ms Parer provide her response by 11 January 2016. On learning of the application, Mr Rallings instructed that the disciplinary process be stayed so that the legal process could take its course.
[417]However, Ms Parer filed further proceedings in the Commission on 16 December 2015.
[418]Mr Woods advised Mr Rallings by email that these proceedings did not give rise to any requirement to further delay the disciplinary process. Mr Woods recommended that he proceed with it. Mr Rallings gave evidence that he assumed that the source of Mr Woods' advice was Crown Law. Mr Woods confirmed the advice had been given by Crown Law and Counsel.
[419]Mr Rallings said it was his usual practice to proceed through a disciplinary process as expeditiously as possible. He considered that Ms Parer had been provided with adequate time and resources to provide a response particularly as she was legally represented. He instructed Mr Woods to proceed with the disciplinary process. On 24 December, Mr Woods advised Crown Law that Mr Rallings had endorsed the recommendation to proceed with disciplinary action and instructed them to prepare the second show cause notices.
[420]That the process had been re-commenced was not made known to Ms Parer. She only became aware of it on receipt of the second show cause letter.
[421]Ms Parer takes issue with the disciplinary process remaining on foot. She was of the understanding from her legal advice that the show cause process would be put on hold once the application was made. She claims the disciplinary process was recommenced as a consequence of her filing her declarations application on 16 December 2015.
[422]Perhaps it was reasonably obvious from the content of the application for declarations that Ms Parer had no intention of complying with the consent order given the issues raised in it. However, she did not provide any formal advice to Mr Rallings that she had decided not to comply and her response was not due for another few weeks. Before Ms Parer could show whether she was complying or not, Mr Rallings made the decision to reactivate the disciplinary process.
[423]No allegation is made against Mr Rallings that he engaged in prohibited conduct because Ms Parer participated in proceedings in the Commission. The allegation against Mr Rallings is that he lacked good faith in revoking the stay on the disciplinary proceedings and his failure to tell Ms McDermott of this. The allegation that Mr Rallings lacked good faith in revoking the stay is made, it seems, because an allegation of prohibited conduct for so doing has not be made against him. At the point he revoked the stay Mr Rallings remained responsible for the disciplinary process.
[424]It might have been sound management practice for Mr Rallings to have informed Ms Parer of his decision but he was not required to do so. The criticism made against him could equally be made about Ms Parer given her conduct in not advising of her decision not to comply with the consent order.
[425]There was also no requirement for Mr Rallings to advise Ms McDermott of his actions once he decided to reactivate the disciplinary proceedings or on his subsequent return from leave as he had been relieved of his delegation. The lack of good faith allegation is rejected.
[426]The above sequence of events shows that Ms Parer participated in proceedings in November 2015 with the conciliation conference and on 7 March 2016 when she participated in proceedings in respect to her s 120 application, the declarations application and in applications related to them. Ms McDermott was given the initial delegation instrument on 16 March 2016. The circumstance that Ms Parer had participated in proceedings under the IR Act is made out.
[427]The decision to resume the disciplinary process was made within about a week of the declarations application being filed. Although Ms McDermott did not make the decision and inherited it on being given the delegations, she ultimately decided to issue the second show cause, including the proposed disciplinary penalty of termination. The Respondent has the onus of proving that Ms McDermott's decision to issue the second show cause, including the proposed disciplinary penalty of termination, was not because of the prohibited reason that Ms Parer had participated in proceedings under an industrial law.
[428]Ms McDermott's evidence makes clear that she knew little about the proceedings in the Commission, that Mr Rallings had halted the disciplinary process in November and reactivated it temporally with the filing of the declarations application. It is therefore necessary to consider whether Ms McDermott's reasoning process for the two decisions was infected by a prohibited reason because she did not have sufficient knowledge or understanding about the context in which the decisions were being made.
[429]Ms McDermott addressed the reasons the disciplinary process was reactivated in the second show cause letter. She referred to the s 120 application filed in the Commission on 4 November 2015, the conference that was held and the consent orders made. She noted that Ms Parer was to have provided her response to the first show cause letter by 11 January 2016. She failed to do so and had not pressed, at the time of filing the s 120 application or subsequently, her application for an interlocutory injunction. Ms McDermott advised she had determined to proceed with issuing the findings on the allegations on the basis that Ms Parer had been given ample opportunity to respond to the allegations which had been provided about seven months previously.
[430]Consideration: Ms McDermott's evidence establishes that her knowledge of the Commission proceedings was negligible. It is clear that the matters about the proceedings set out in the second show cause letter above were not matters within her knowledge. The decision to proceed with the process and the reasons given for so doing were those of Mr Rallings. Both Mr Rallings and Ms McDermott denied they had had conversations about the disciplinary matters except in relation to the delegations. In the circumstances Ms McDermott had to have relied on the reasons set out in the draft correspondence as to why the disciplinary process was reactivated.
[431]The second show cause letter was settled by Counsel. No claim was sought to be made or an inference proposed that then Counsel was engaged in any prohibited conduct. In my view Counsel's involvement is one factor that militates against a finding that Ms McDermott was so engaged.
[432]It is important to recall though that the alleged prohibited conduct is that Ms McDermott found Ms Parer liable for disciplinary action and proposed the penalty of termination because of various prohibited reasons, most relevantly participation in proceedings. The alleged prohibited conduct is not that Ms Parer was injured or disadvantaged in her employment when the disciplinary process was reactivated because she had participated in proceedings. The prohibited conduct is Ms McDermott finding Ms Parer liable for disciplinary action and proposing the disciplinary penalty of termination. Given the claims made in the application, my decision is focused on Ms McDermott's reasoning process for the decisions she made.
[433]Although Ms McDermott was entitled to rely on the draft correspondence, for the reverse onus to be discharged, she is required to have brought her own independent judgment to the decision and establish that the operative and substantial reason for the conduct was not a prohibited one. Ms McDermott confirmed under cross-examination that the decisions she made were solely based on the material with which she was provided. She agreed she signed the letter as it had been drafted with perhaps one word being different. However, her reliance on that material is not evidence of an absence of independent judgment being brought to bear.
[434]Ms McDermott spent considerable time working through the documentation she was provided. She wrote a contemporaneous email stating that she had a responsibility to read the documents in detail. Having done so she reached the conclusion that the allegations could be substantiated based on the information before her and the second show cause letter should be issued.
[435]Ms McDermott was aware that Ms Parer had made an employee complaint from the documents filed in the Commission. She was also aware of the content of that complaint. Her evidence was that she did not see it as relevant to the decision she was required to make. Further, none of Ms Parer's industrial conditions bore any influence on her decision making.
[436]Ms McDermott denies that a factor in her decision to issue the second show cause was because Ms Parer had participated in proceedings. She made her decision solely on her review of the brief and her view that the allegations had been substantiated on the material before her.
[437]Ms McDermott's evidence denying that she proceeded to issue the second show cause for a prohibited reason was unchallenged. So too was her reason for proposing the penalty of termination of employment.
[438]Conclusion: Ms McDermott's evidence that she thoroughly and methodically read the material was not undermined on cross-examination. Further the draft correspondence prepared by Crown Law (and settled by Counsel) was used for the purpose of communicating her decision. Her evidence is that she came to her own view and ensured she agreed with the findings set out before approving its issue.
[439]Ms McDermott's reasoning and her reasons given in evidence show the true reasons for her decision were that the allegations could be substantiated in part. Her reasoning does not disclose that Ms Parer's participation in the Commission proceedings was either a substantial or operative factor or a factor at all in her decision.
[440]Any connection between Ms Parer's participation in proceedings and the second show cause conduct and the threatened termination conduct was temporal. The second show cause conduct was engaged in not because she had participated in proceedings but because she had not responded to the first show cause letter.
[441]Ms McDermott's evidence is that she was initially concerned whether the allegations concerning Ms Parer's supervision were serious enough to warrant the penalty of termination. However, the issues raised in Allegation 9 about misrepresenting a legal letter caused Ms McDermott to decide the proposed penalty was warranted. This evidence shows she exercised independent reasoning and judgement in reaching her decision.
[442]Neither her decision to find Ms Parer liable for disciplinary action nor her decision to propose the penalty of termination of employment bore any relationship to any of the claimed prohibited reasons. Her substantial and operative reasons for the two decisions she made were those that she gave in evidence.
[443]The Respondent has discharged its onus.
11.ORDERS
[444]The application is dismissed.
[445]In the event the application was partially or wholly dismissed the Respondent reserved its rights to seek costs. In the circumstances the Commission reserves the question of costs.
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