Pennington v Jamieson

Case [2022] ICQ 22

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Pennington v Jamieson & Anor [2022] ICQ 022

PARTIES:

ADRIAN PENNINGTON

(appellant)

v
PETA JAMIESON (IN HER CAPACITY AS CHAIR OF THE WIDE BAY HOSPITAL AND HEALTH SERVICE)
(first respondent)
and
WIDE BAY HOSPITAL AND HEALTH SERVICE

(second respondent)

FILE NO/S:

C/2022/1

PROCEEDING:

Appeal

DELIVERED ON:

26 July 2022

HEARING DATE:

30 May 2022

MEMBER:

Davis J, President

ORDER/S:

1.   The appeal is dismissed.

2.   The respondents file and serve by email upon the appellant by 4 August 2022 any written submissions on the costs of the appeal.

3.   The appellant file and serve by email upon the respondents by 15 August 2022 any written submissions on the costs of the appeal.

4.   Each party have leave to file and serve by 22 August 2022 any application for leave to make oral submissions as to the costs of the appeal.

5.   In the absence of any application to make oral submissions on costs of the appeal being filed by 22 August 2022, the question of costs will be decided on any written submissions filed and without further oral hearing.

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL RELATIONS COMMISSION - JURISDICTION - where the appellant was employed as Health Service Chief Executive by the second respondent - where the appellant’s employment was governed by the Hospital and Health Boards Act 2011 (the HHB Act) and a contract of employment - where the appellant’s employment was terminated by the second respondent by action of the first respondent - where the appellant alleged that the termination constituted adverse action - where the appellant applied to the Queensland Industrial Relations Commission (QIRC) for reinstatement and other orders - where the HHB Act contained a privative provision excluding matters from review or appeal - whether the HHB Act excluded the jurisdiction of the QIRC to hear and determine the appellant’s application

INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - where the appellant was employed as Health Service Chief Executive by the second respondent - where the appellant’s employment was governed by the HHB Act and a contract of employment - where the appellant’s employment was terminated by the second respondent by action of the first respondent - where the appellant alleged that the termination constituted adverse action - where an adverse action claim is not available where the action is authorised by statute - where the HHB Act authorised the termination - whether the adverse action claim is thereby excluded - where the contract of employment mirrored the HHB Act - whether the termination was made pursuant to the contract - whether then the termination was authorised by the HHB Act - whether a termination pursuant to the contract can constitute adverse action - whether termination in bad faith was authorised by the HHB Act - where the notice of termination was given pursuant to the employment contract - whether that makes the termination authorised by the contract - whether then the termination is not authorised by the HHB Act

CONTRACTS…

Continue reading Pennington v Jamieson

Sign in free to access the full text

Details
AGLC
Pennington v Jamieson [2022] ICQ 22
Case
[2022] ICQ 22
Decision Date

CaseChat Overview and Summary

The appellant, Mr Pennington, sought reinstatement and other orders from the Queensland Industrial Relations Commission (QIRC) after his employment as Health Service Chief Executive by the Wide Bay Hospital and Health Service (WBH&HS) was terminated by Ms Jamieson, the Chair of the WBH&HS. Mr Pennington alleged that the termination constituted adverse action. The QIRC dismissed Mr Pennington’s application on the basis that the dismissal did not constitute adverse action and that the QIRC had no jurisdiction to hear any of the claims. Mr Pennington appealed to the Queensland Court of Appeal.

The central legal issue before the court was whether the Hospital and Health Boards Act 2011 (HHB Act) excluded the jurisdiction of the QIRC to hear and determine Mr Pennington’s application for adverse action. The court considered whether Mr Pennington’s termination was authorised by statute, which would exclude an adverse action claim. The court also examined whether the termination was authorised by the contract of employment between Mr Pennington and the WBH&HS, and if such a termination could constitute adverse action.

The court concluded that the HHB Act excluded the jurisdiction of the QIRC to hear and determine Mr Pennington’s application. The court held that the termination of Mr Pennington’s employment was authorised by the HHB Act and the contract of employment. The court found that the termination was not defective as it was given pursuant to the employment contract and the HHB Act. The court held that the QIRC did not have jurisdiction to hear Mr Pennington’s claims as they were excluded by the privative clause in the HHB Act. The appeal was dismissed, and directions were made for the parties to file written submissions on the costs of the appeal.

The final orders of the court were that the appeal was dismissed and directions were made for the parties to file written submissions on the costs of the appeal. The court ordered that the respondents file and serve written submissions on the costs of the appeal by a specified date, and that the appellant file and serve written submissions on the costs of the appeal by a later date. The court further ordered that each party had leave to file an application for leave to make oral submissions as to the costs of the appeal, but that in the absence of any such application being filed by a specified date, the question of costs would be decided on the written submissions filed and without further oral hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The QIRC summarily dismissed the adverse action application upon finding that:1.the dismissal did not constitute adverse action;[3] and2.the QIRC had no jurisdiction to hear any of the claim, including as it related to the threats of dismissal, the threats of injury, the injury and discrimination.[4][3]Pennington v Jamieson & Anor (No 2) [2021] QIRC 426 at [18].[4]Pennington v Jamieson & Anor (No 2) [2021] QIRC 426 at [77] and [87].Background The second respondent, Wide Bay Hospital and Health Service (WBH&HS), is a hospital and health service established pursuant to s 17 of the Hospital and Health Boards Act 2011 (the HHB Act). Ms Jamieson was, at all relevant times, the Chair of the WBH&HS. Mr Pennington was appointed Health Service Chief Executive of the WBH&HS in 2012. That position is one recognised by the HHB Act. Ms Jamieson terminated Mr Pennington’s appointment and employment and the act of termination is part of the adverse action alleged. A Health Service Chief Executive is appointed by a hospital and health service pursuant to s 33 of the HHB Act. Section 74 requires a written contract of employment to be executed by the Health Service and the Health Service Chief Executive who has been appointed.[5][5]Section 74 relates to all “health executives” which include a “health service chief executive”. See Schedule 2, Dictionary definition of “health executive” and s 67, and Dictionary definition of “health service chief executive” and s 33. Mr Pennington and the WBH&HS entered into such a contract in 2012 and again on 1 March 2017 (the contract of employment) when he was appointed for a further five year term.[6] Relevantly, the contract of employment provides:[6]A Deed Poll dated 1 March 2017 was also executed by Mr Pennington concerning confidential information to which he may become privy.“1. DEFINITONS & INTERPRETATION1.1In this Contract, unless a contrary intention appears: …Commencement Date means the date specified in Item 2 of Schedule 1, on which this Contract commences; …End Date means the date on which this Contract ends, being whichever is the earliest of the following:(a)the Expiry Date;(b)the effective date of termination in accordance with clause 7.5;(c)the date of termination contained in a notice given by the Health Service CE under clause 8; or(d)another date of termination prescribed by the Act;Expiry Date means the date specified in Item 3 of Schedule 1, on which this Contract will expire; ...2.APPOINTMENT & CONDITIONS OF EMPLOYMENT2.1The Health Service CE[7] accepts appointment under this Contract as Health Service CE and health executive, from the Commencement Date until the End Date. ...[7]Defined in the employment contract as Mr Pennington.2.3The Health Service CE’s conditions of employment are governed by the Act,[8] the Applied Public Service Law,[9] Health Service Directives,[10] this Contract and the Health Service Chief Executive Terms and Conditions.[11][8]Defined as the Hospital and Health Boards Act 2011.[9]The contract adopts the definition in the Hospital and Health Boards Act 2011:“applied Public Service law, for a health service employee, means the following that are applied to the employee under a regulation under the Public Service Act 2008, section 23—(a)a provision of the Public Service Act 2008;(b)a directive issued under that Act.”[10]The contract adopts the definition in the Hospital and Health Boards Act 2011:“health service directive means a health service directive issued by the chief executive to a Service under section 47.”[11]Defined in the employment contract as:“Health Service Chief Executive Terms and Conditions of Employment means the terms and conditions of employment applicable to the Health Service CE and contained in the document entitled ‘Health Service Chief Executive Terms and Conditions of Employment’, as amended from time to time.”2.4If there is an inconsistency between this Contract and the Act or the Applied Public Service Law, the Act or Applied Public Service Law prevails to the extent of the inconsistency. …3.TERM OF EMPLOYMENT3.1This Contract, and the employment of the Health Service CE, starts on the Commencement Date and ends on the End Date. …[12][12]Effectively the date of expiry of the term or the date of termination under either clause 7 or clause 8 or the date of any termination by force of the Hospital and Health Boards Act 2011.7.TERMINATION BY AUTHORITY7.1The Health Service CE’s appointment and this Contract may be terminated by notice signed by the Authority,[13] which must specify a proposed termination date that is at least one (1) month after the date on which the notice is given to the Health Service CE. The notice does not need to provide reasons for the termination.[13]“Authority” is defined as “the chair of the board for the [Wide Bay Hospital and Health Service]”; Ms Jamieson.7.2The termination of the Health Service CE’s appointment and this Contract is not effective until it is approved by the Minister.[14][14]“Minister” is defined in the contract as “means the Minister with portfolio responsibility under the [Hospital and Health Boards Act 2011]”.7.3The Health Service CE may, within seven (7) days after receiving a notice under clause 7.1, provide a written submission to the Authority explaining why this Contract should not be terminated.7.4The Authority must ensure that any written submission received from the Health Service CE under clause 7.3 is included in any submission to the Minister seeking approval to terminate the Health Service CE’s appointment and this Contract.7.5If, after consideration of any submission received from the Health Service CE under clause 7.3, the Minister approves termination of the Health Service CE’s appointment and this Contract, the effective date of termination will be whichever of the following dates is the later:(a)the proposed termination date specified in the notice given under clause 7.1; or(b)the date on which the Minister gives approval.7.6The Authority may direct the Health Service CE to take special leave on full pay and without debit to any of the Health Service CE’s leave accounts during the notice period.7.7The Authority may revoke a notice under clause 7.1 before it takes effect.8.TERMINATION BY HEALTH SERVICE CE8.1The Health Service CE may resign or retire by giving at least one (1) months notice to the Authority.8.2The Authority may consent to a shorter notice period after the Health Service CE’s notice of resignation or retirement is received.8.3A consent by the Authority to a shorter notice period is not a termination under clause 7.8.4If the Health Service CE does not give at least the minimum period of notice required under clause 8.1, the Health Service CE must pay to the Authority, as a liquidated debt and realistic estimate of any detriment that the Authority may suffer because of the termination of this Contract by the Health Service CE, an amount of the Total Remuneration Package that is equivalent to the period of notice not given by the Health Service CE. …14.GENERAL PROVISIONS14.1This Contract supersedes and replaces all other Contracts, understandings or arrangements between the parties. …SCHEDULE 1 - CONTRACT PARTICULARS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is no jurisdiction in the QIRC to entertain Mr Pennington’s claims. Conclusions and orders All grounds of appeal have failed. The appeal should be dismissed. At the hearing of the appeal, all parties agreed that I should make directions to facilitate the question of costs being determined on written submissions. I will do so. It is ordered:1.The appeal is dismissed.2.The respondents file and serve by email upon the appellant by 4 August 2022 any written submissions on the costs of the appeal.3.The appellant file and serve by email upon the respondents by 15 August 2022 any written submissions on the costs of the appeal.4.Each party have leave to file and serve by 22 August 2022 any application for leave to make oral submissions as to the costs of the appeal.5.In the absence of any application to make oral submissions on costs of the appeal being filed by 22 August 2022, the question of costs will be decided on any written submissions filed and without further oral hearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.