Promnitz v Gympie Regional Council - [2015] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Promnitz v Gympie Regional Council [2015] ICQ 011

PARTIES:

JILL PROMNITZ
(appellant)
v
GYMPIE REGIONAL COUNCIL
(respondent)

CASE NO/S:

C/2014/37

PROCEEDING:

Appeal

DELIVERED ON:

28 April 2015

HEARING DATE:

4 November 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal allowed. 1.

The decision given on 10 July 2014 is set aside. 2.

Declare that the purported termination of the appellant’s employment by the respondent was invalid. 3.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – OTHER MATTERS – where the appellant was dismissed from her employment by the Respondent – where the appellant applied to the Commission for a declaration under s 274A of the Industrial Relations Act 1999 that her dismissal was invalid – where the Local Government Regulation 2012 requires an employee be provided notice of the grounds for disciplinary action and given an opportunity to respond - whether the legislature intended that invalidity should flow from a failure to provide adequate notice.

Industrial Relations Act 1999, s 74, s 274A
Local Government Act 2009, s 197
Local Government Regulation 2012, s 278, s 279, s 280, s 283

CASES:

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWSLR 393
Ex parte Tasker; re Hannon; [1971] 1 NSWLR 804
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306
Scurr v Brisbane City Council (1973) 133 CLR 242
SZOFE v Minister for Immigration& Citizenship (2010) 185 FCR 129

APPEARANCES:

J Farren on behalf of the appellant instructed by Dowd & Company
C Murdoch for the respondent instructed by Minter Ellison

Jill Promnitz was employed as an administrative coordinator by the Gympie Regional Council until mid-February 2014. At that time she was summarily dismissed from her employment. Ms Promnitz applied to the Commission for a declaration under s 274A of the Industrial Relations Act 1999 that her termination was invalid. She was unsuccessful and appeals from that decision.

In January 2014 Ms Promnitz was notified by the Chief Executive Officer of the Council that a complaint about her conduct had been made to the Crime and Misconduct Commission and that it, in turn, had referred the complaint to the Council for investigation. The Council engaged a firm of solicitors, Gadens Lawyers, to conduct the investigation on its behalf. A series of allegations were made against Ms Promnitz and, in the course of the investigation by Gadens, she was interviewed and provided both written and oral responses to the allegations.

The conclusions reached by the investigator were to the effect that, of the five allegations, one was unsubstantiated, three were substantiated and the fifth was partially substantiated. On the basis of those findings, the CEO wrote to Ms Promnitz and said, among other things:

“It is Council’s opinion that the above substantiated allegations constitute misconduct within the meaning of the [Crime and Misconduct Act 2001] in the form of:

(a)…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] ICQ 11
Decision Date: 28 April 2015

CaseChat Overview and Summary

In this case, the appellant, Promnitz, was dismissed from her employment by Gympie Regional Council, the respondent. Promnitz sought a declaration from the Commission under section 274A of the Industrial Relations Act 1999 that her dismissal was invalid. The crux of the dispute centred around the procedural requirements mandated by the Local Government Regulation 2012, which stipulates that an employee must be notified of the grounds for disciplinary action and afforded an opportunity to respond. Promnitz argued that her dismissal was invalid due to the council's failure to comply with these procedural requirements.

The primary legal issue before the court was whether the failure to provide adequate notice of the grounds for disciplinary action, as required by the regulation, rendered the dismissal invalid. Specifically, the court had to determine if the legislature intended that the invalidity of a dismissal should automatically follow from such procedural lapses. This involved interpreting the interplay between the statutory provisions of the Industrial Relations Act 1999 and the regulatory requirements set out in the Local Government Regulation 2012.

The court carefully examined the legislative framework and the relevant regulation to ascertain the legislative intent. It concluded that the failure to provide adequate notice of the grounds for disciplinary action did indeed render the dismissal invalid. The court reasoned that the regulatory requirement was integral to ensuring fair and just procedures in disciplinary actions, and its non-compliance could not be overlooked. Consequently, the court found in favour of the appellant, holding that the dismissal was invalid due to the procedural shortcomings. The court made a declaration that the dismissal was invalid and directed the matter back to the Commission for further consideration in light of its findings.

Orders