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Pennington v Jamieson (No 2)

Pennington v Jamieson (No 2)

Case [2021] QIRC 426 15 December 2021

Adverse Action

Industrial Relations Act 2016

Privative Clause

Jurisdiction

Industrial Matters

Employment & Labour Law

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Pennington v Jamieson & Anor (No 2) [2021] QIRC 426
PARTIES:	Pennington, Adrian (Applicant) 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)
CASE NO:	GP/2020/1
PROCEEDING:	General Protections
DELIVERED ON:	15 December 2021
HEARING DATE:	27 November 2020 Further written submissions – 8 December 2020 14 December 2020
MEMBER:	Knight IC
HEARD AT:	Brisbane
ORDERS:	1. The application filed 6 January 2020 is dismissed for want of jurisdiction. 2. I will hear the parties as to costs.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – General Protections – where Hospital and Health Boards Act 2011 provides for termination of health service chief executive's appointment and contract of employment – where health service chief executive, following termination, filed general protections application – where, under Industrial Relations Act 2016, adverse action does not include action authorised under a law of the State – whether termination and other alleged contraventions authorised under Hospital and Health Boards Act 2011. INDUSTRIAL LAW – QUEENSLAND – Industrial Relations Commission – Jurisdiction of Commission – privative clause – where health service chief executive, following termination, filed general protections application – whether application constitutes an 'excluded matter' and therefore not an 'industrial matter' under the Industrial Relations Act 2016 – whether jurisdiction of Commission ousted.
LEGISLATION AND INSTRUMENTS:	Acts Interpretation Act 1954 (Qld) s 14B, sch 1 Fair Work Act 2009 (Cth) ss 51, 52, 53, 342 Health and Hospitals Network Bill 2011 (Qld) Health Services Act 1991 (Qld) (repealed) s 28H Health Services Amendment Act 2006 (Qld) Hospital and Health Boards Act 2011 (Qld) ss 71, 74, 74A, 74B, 75 Industrial Relations Act 1999 (Qld) (repealed) Industrial Relations Act 2016 (Qld) ss 9, 282, 285, 295, 448, 449, sch 1 Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 (Qld) Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (Qld) Judicial Review Act 1991 (Qld) Public Service Act 1996 (Qld) (repealed) s 116 Public Service Act 2008 (Qld) ss 137, 187 Public Service Amendment Act 1996 (Qld)
CASES:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Blizzard v O'Sullivan [1994] 1 Qd R 112 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560 Director-General of Education v Suttling (1987) 162 CLR 427 Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 Griffith University v Tang (2005) 221 CLR 99 Leisemann v Cornack & Anor [2011] QSC 410 McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521 North West County Council v Dunn (1971) 126 CLR 247 Northern Territory v Collins (2008) 235 CLR 619 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Queensland Nurses and Midwives' Union of Employees…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pennington v Jamieson (No 2)

Details

AGLC: Pennington v Jamieson (No 2) [2021] QIRC 426
Case: [2021] QIRC 426
Decision Date: 15 December 2021

CaseChat Overview and Summary

The Applicant, Mr. Pennington, filed an application against the Respondent, Ms. Jamieson, in the Queensland Industrial Relations Commission. The dispute concerns the termination of Mr. Pennington’s employment as the chief executive of a health service, and subsequent filing of a general protections application under the Industrial Relations Act 2016. The central issue before the court was whether the termination of Mr. Pennington’s employment was authorised under the Hospital and Health Boards Act 2011, thereby exempting it from being considered as ‘adverse action’ under the Industrial Relations Act 2016. Additionally, the court had to determine if the application filed by Mr. Pennington constituted an ‘excluded matter’ under the Industrial Relations Act 2016, and thus, whether the Commission’s jurisdiction was ousted.

The court found that the termination of Mr. Pennington’s employment was indeed authorised by the Hospital and Health Boards Act 2011, and thus, not considered as 'adverse action' under the Industrial Relations Act 2016. The court further reasoned that the application filed by Mr. Pennington was an ‘excluded matter’ under the Industrial Relations Act 2016, meaning it was not an ‘industrial matter’. Consequently, the Commission’s jurisdiction was ousted, and it lacked the authority to deal with the application. The court concluded that even if it was incorrect in its interpretation of the statutory provisions, the privative clause in the Hospital and Health Boards Act 2011 excluded the Commission’s jurisdiction over the matter.

In conclusion, the application was dismissed for want of jurisdiction. The court ordered that the application filed on 6 January 2020 be dismissed. The court also noted that it would hear the parties regarding the costs associated with the application.

Orders

Orders of the court

1. The application filed 6 January 2020 is dismissed for want of jurisdiction.

2. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The difficulty I have with this argument is the Applicant has been unable to identify how an application under ch 8, pt 1 of the IR Act is one that is 'referred' to this Commission within the meaning of s 448(1)(e). In any event, I am of the view that an application made under ch 8, pt 1 of the IR Act is one that falls squarely within the definition of 'industrial matters', as defined at s 9 and sch 1 of the IR Act. Conclusion For the reasons set out above, I am satisfied the Applicant's dismissal was authorised under ss 74(4) and (5) of the HHB Act and is therefore not 'adverse action' because of s 282(6) of the IR Act. Even if I was to be wrong on that point, s 75 of the HHB Act excludes the Commission's jurisdiction in respect of the excluded matter of the Applicant's dismissal and matters affecting or relating to it. As 'excluded matters', the dismissal and matters effecting or relating to it are not industrial matters for the purposes of the IR Act. Therefore, the Commission lacks jurisdiction to deal with the application.Orders

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Pennington v Jamieson (No 2) [2021] QIRC 426

Most Recent Citation

Pennington v Jamieson [2022] ICQ 22

Cases citing this decision · 1 of 1 shown

Pennington v Jamieson
[2022] ICQ 22 Para 1

…rse action by his employer, the second respondent, through action of the first respondent (Ms Jamieson).[1] [1] Pennington v Jamieson & Anor (No 2) [2021] QIRC 426.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

SZTAL v Minister for Immigration and Border Protection
[2017] HCA 34 Para 1

…the statute, while at the same time, regard is to be had to its context and purpose.[62] [62] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ) citing Project Blue Sky (n 37) [69]-[71]; Alcan (n 27) [47].…
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)
[2017] FCA 1046 Para 20

…is 'no'. Section 50 provided no such authority .[19] [19] Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046, [288] (emphasis added).…
Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd
[2014] FCA 462 Para 10

…ments made by Rio Tinto to groups of employees, in circumstances where payments to non-CFMEU members were greater than payments to CFMEU members. [9] (2014) 232 FCR 560.…
Leisemann v Cornack
[2011] QSC 410 Para 30

…e term 'challenge' throughout Griffith University v Tang (2005) 221 CLR 99, and that of the Supreme Court of Queensland in Leisemann v Cornack & Anor [2011] QSC 410, [25]-[27].…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
[2009] HCA 41 Para 28

…nd according to the terms in which it has been expressed...[28] [27] See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (' Alcan '), [46]-[47]. [28] Northern Territory v Collins (2008) 235 CLR 619, 623 (Gummow ACJ and Kirby J).…
Northern Territory v Collins
[2008] HCA 49 Para 28

…r example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (' Alcan '), [46]-[47]. [28] Northern Territory v Collins (2008) 235 CLR 619, 623 (Gummow ACJ and Kirby J).…
Griffith University v Tang
[2005] HCA 7

…Australia Pty Ltd (2014) 232 FCR 560 Director-General of Education v Suttling (1987) 162 CLR 427 Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 Griffith University v Tang (2005) 221 CLR 99 Leisemann v Cornack & Anor [2011] QSC 410 McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521 North West County Council v Dunn (19…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 9

…equences for the parties of holding void every act done in breach of the condition.[37] [37] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (' Project Blue Sky '), [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ).…
Director-General of Education v Suttling
[1987] HCA 3 Para 17

…ere is a contract which embodies its provisions. The statute itself controls the terms of service .[41] [41] Director-General of Education v Suttling (1987) 162 CLR 427, 437-738.…
North West County Council v Dunn
[1971] HCA 34 Para 20

…the Applicant's employment – action which would otherwise fall within the meaning of adverse action. [46] See also North West County Council v Dunn (1971) 126 CLR 247, 255 (Menzies J), 265 (Walsh J).…
McVicar v Commissioner for Railways (NSW)
[1951] HCA 50 Para 19

…y sets out the course to be followed for termination of his services. [44] s 74(1). [45] See, for instance, McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521, 527 (Dixon, Williams, Fullagar and Kitto JJ).…
Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service
[2020] QIRC 049 Para 14

…uthorised by the section could not be taken.[13] [12] Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049. [13] Ibid [95].…
Alumina Pty Ltd v Commissioner of Territory Revenue
260 ALR 1 Para 28

…he Court is to give meaning to the legislative command according to the terms in which it has been expressed...[28] [27] See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (' Alcan '), [46]-[47]. [28] Northern Territory v Collins (2008) 235 CLR 619, 623 (Gummow ACJ and Kirby J).…

Legislation cited in this decision · 14

Industrial Relations Act 2016 (Qld)
282, 285, 295, 448, 449, 9 7 mentions (from Para 2)
Hospital and Health Boards Act 2011 (Qld)
71, 74, 74A, 74B, 75 6 mentions (from Para 2)
Fair Work Act 2009 (Cth)
342, 51, 52, 53 5 mentions (from Para 10)
Acts Interpretation Act 1954 (Qld)
14B, 14B(3)(e) 3 mentions (from Para 13)
Public Service Act 2008 (Qld)
137, 187 3 mentions (from Para 14)
Health Services Act 1991 (Qld)
28H 2 mentions (from Para 9)
Public Service Act 1996 (Qld)
116 2 mentions (from Para 9)
Health Services Amendment Act 2006 (Qld)
1 mention (from Para 9)
Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 (Qld)
1 mention (from Para 11)
Industrial Relations Act 1999 (Qld)
1 mention (from Para 31)
Judicial Review Act 1991 (Qld)
1 mention (from Para 22)
Legislative Standards Act 1992 (Qld)
1 mention (from Para 9)
Other Legislation Amendment Act 2013 (Qld)
1 mention (from Para 11)
Public Service Amendment Act 1996 (Qld)
1 mention (from Para 10)