Promnitz v Gympie Regional Council

[2014] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  Promnitz v Gympie Regional Council

[2014] QIRC 111

PARTIES:	Promnitz, Jill
(Applicant)
v
Gympie Regional Council
(Respondent)
CASE NO:	B/2014/13
PROCEEDING:	Application for Declarations
DELIVERED ON:	10 July 2014
HEARING DATE:	16 May 2014
MEMBER:	Deputy President Kaufman
ORDERS :	1.  Application for a declaration is dismissed.
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR DECLARATION - Failure to comply with regulations - whether failure to comply renders decision void - whether intention of legislature was to render act made in non-compliance with regulation void - application dismissed
CASES:	Industrial Relations Act 1999 Schedule 1, s 7, s 74, s 274A, s 331 Local Government Act 2009 s 4, s 196, s 197, s 280 Local Government Regulations 2012, r 279, r 281, r 283, r 283(1),r 283(2), r 287,
Ombudsman Act 2001 Project Blue Sky Inc and Others v Australian
Broadcasting Authority (1998) 194 CLR 355
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd
[2010] 78 NSWLR 393
APPEARANCES:	Mr J Farren, Counsel, instructed by M&K Lawyers for the Applicant Mr C.J Murdoch, Counsel, instructed by Minter Ellison for the Respondent

Reasons for Decision

[1] On 28 February 2014, Ms Jill Promnitz filed an application for reinstatement under s 74 of the Industrial Relations Act 1999 ("the IR Act") alleging that she had been unfairly dismissed by the Gympie Regional Council because the dismissal was harsh, unjust or unreasonable.

[2] On 22 April 2014, she filed an application for declarations and orders pursuant to s 274A of the IR Act seeking a declaration that the termination of her employment by the Gympie Regional Council ("the council") was invalid and consequential orders to compel the council to reinstate her in her former employment and to pay her for the remuneration that she has lost between her termination and reinstatement. Mr J. Farren, of counsel, appeared for the applicant, and Mr C. Murdoch, of counsel, appeared for the respondent. It is this matter that is the subject of this decision. The application for consequential orders was abandoned at the hearing.

[3] The applicant was employed as an Administrative Coordinator by the council pursuant to s 196 of the Local Government Act 2009 ("LG Act").

[4]      In late January 2014, the applicant was notified by the CEO of the council that a complaint about her conduct had been made to the Crime and Misconduct Commission (CMC) and that the CMC had referred the complaint, which alleged that the Applicant had engaged in workplace victimization and harassment, to the council for investigation. The CEO informed her that the council had engaged a firm of solicitors, Gadens Lawyers, to conduct the investigation on its behalf.

[5]      On or about 22 January 2014 Gadens wrote to the applicant, informing her of the appointment of the firm to undertake the investigation. A series of allegations was contained in the letter. A summary of the nature of the official misconduct that might be found should the allegation be substantiated was provided in respect of each allegation. An interview was scheduled with the applicant with a view to obtaining her responses to the allegations.

[6]      On 24 January 2014, the applicant attended the scheduled interview. During the course of the interview she provided both written and oral responses to the allegations.

[7]      The findings of the investigation were communicated by the council to the applicant by letter dated 21 January 2014 over the signature of its CEO. This was received by the applicant on 12 February 2014. It would appear to have been erroneously dated. Most of the allegations against the applicant were said to have been substantiated. In the letter the CEO stated that it was the council's opinion that the substantiated allegations constituted gross misconduct. The CEO concluded by summarily terminating the applicant's employment.

[8] Section 197 of the LG Act authorizes the CEO to terminate the employment of a local government employee in accordance with the provisions of the LG Act and the provisions of Div 1 of Part 3, Chapter 8 of the Local Government Regulations 2012 ("LG Regulations").

[9] Section 197 of the LG Act states:

"197 Disciplinary action against local government employees

(1) The chief executive officer may take disciplinary action

against a local government employee.

(2) A regulation may prescribe-

(a) when disciplinary action may be taken against a local

government employee; and

(b) the types of disciplinary action that may be taken against

a local government employee."

[10]    LG Regulation 283 states:

"283 Employee to be given notice of grounds for disciplinary

action

(1) Before the chief executive officer takes disciplinary action
against a local government employee, the chief executive officer must

give the employee-

(a) written notice of the following-

(i) the disciplinary action to be taken;

(ii) the grounds on which the disciplinary action is

taken;

(iii) the particulars of conduct claimed to support the

grounds; and

(b) a reasonable opportunity to respond to the information

contained in the written notice.

(2) The grounds and particulars are taken to be the only grounds
and particulars for the disciplinary action taken, and no other ground or
particular of conduct can be advanced in any proceeding about the
disciplinary action taken against the local government employee."

[11] By operation of s 280 of the LG Act, dismissal constitutes disciplinary action.

[12] It is common ground that the applicant is entitled to seek a declaration about an industrial matter pursuant to s 274A of the IR Act.

[13]    It is also common ground that the declaration sought is about an industrial matter.

[14] Section 7 of the IR Act defines an "industrial matter" widely to be a matter that affects or is related to, among other things, a matter contained in Schedule 1. Schedule 1 includes within the definition of "industrial matter" a claim to dismiss or refuse to employ a particular person, and the right to dismiss, or to refuse to employ, reinstate or re-employ a particular person.

[15]    The declaration sought by the applicant is about, affects or is related to the council's claimed dismissal of the applicant; and/or the council's claimed right to dismiss the applicant and is, accordingly, an industrial matter.

[16]   For the applicant it is argued that there has been no, or no substantial, compliance with the requirements of r 283 and that consequently the termination of the applicant's employment was void and of no effect.

[17]    It is clear that the requirements of the regulation have not been met.

[18]    Regulation 283 requires that certain things be done before a CEO takes disciplinary action against a local government employee.

[19]   It is not sufficient that the applicant might have known, and was told by the investigators, that termination of employment was a possibility. In particular, no written, or indeed any, notice of the disciplinary action that was intended to be taken, or a reasonable opportunity to respond in respect of the intended disciplinary action, was provided to the applicant. Although she was not provided with them post the investigation process conducted by Gadens, the applicant had been informed, in the letter of 22 January 2014 from Gadens, of the likely grounds on which the disciplinary action might be taken, as well as with limited particulars of the conduct claimed to support the grounds.

[20]    Prior to the termination of her employment she had not been furnished with a written notice of the disciplinary action to be taken, the grounds on which it was to be taken or full particulars of the conduct claimed to support the grounds. Nor had she been provided with any, let alone a reasonable, opportunity to respond to the case against her.

[21]    It follows that there had been no, or no substantial compliance with the requirements

of r 283. Mr Murdoch accepted that there had not been compliance with, at least,

those parts of the regulation that require that there be notice of the disciplinary

action to be taken and that there be an opportunity to reply, but submitted that that

1

does not render the decision to terminate the Applicant's employment invalid.

[22] Since the judgment of the High Court in Project Blue Sky Inc and Others v

2

Australian Broadcasting Authority the principles regarding the consequences of

non-compliance with statutory obligations have been well established. The test for

determining the validity of determining whether an act performed in breach of a

legislative provision is invalid is to ask whether it was a purpose of the legislation

3

that an act done in breach of the provision should be invalid.

[23]   When a legislative provision directs that a power or function be carried out in

accordance with matters of policy, ordinarily the better conclusion is that the

direction goes to the administration of a power or function rather than to its

4

invalidity.

[24]    The LG Act sets out its purpose and the principles underpinning the Act:

"3 Purpose of this Act

The purpose of this Act is to provide for-

(a) the way in which a local government is constituted and

the nature and extent of its responsibilities and powers; and

(b) a system of local government in Queensland that is

accountable, effective, efficient and sustainable.

4 Local government principles underpin this Act

(1) To ensure the system of local government is accountable,

effective, efficient and sustainable, Parliament requires-

(a) anyone who is performing a responsibility under this Act to do
so in accordance with the local government principles; and

(b) any action that is taken under this Act to be taken in a way that-

(i) is consistent with the local government principles; and

(ii) provides results that are consistent with the local
government principles, in as far as the results are within the

control of the person who is taking the action.

(2) The local government principles are-

(a) transparent and effective processes, and decision-making in the

public interest; and

(b) sustainable development and management of assets and

infrastructure, and delivery of effective services; and
(c) democratic representation, social inclusion and meaningful

community engagement; and

(d) good governance of, and by, local government; and
(e) ethical and legal behaviour of councillors and local government
employees."

[25] Action taken under s 197 and r 283 is action that is to be taken in accordance with the matters of policy enunciated in s 4, which sets out the local government principles. This is suggestive of the conclusion that a failure to adhere to the requirements set out in r 283 does not render the action invalid.

[26]   Mr Murdoch submitted that public inconvenience would result if an act done in breach of r 283 was invalid, noting the observation of the High Court in Project Blue Sky that:

"it is unlikely that it was a purpose of the legislation that an act done in breach

of a statutory provision should be invalid if public inconvenience would be the

5

result of the invalidity of the act."

[27] Given the nature of the entities governed by the LG Act there is some force in this submission. There will invariably be many instances in which a chief executive of a local government entity exercises s 197 disciplinary powers. It could cause significant public inconvenience if the validity of the exercise of these powers could be challenged each time it were to be alleged that there had been some non-compliance with the requirements of r 283.

[28] That there are other statutory remedies available to employees of local government entities who are aggrieved by disciplinary action against them enforces the conclusion that act done in breach of r 283 are not void. In particular, in the case of dismissal, an application may be made to this commission under s 74 of the Industrial Relations Act 1999, as the applicant in this matter has done. In respect of other types of disciplinary action, a complaint could be made to the ombudsman under the Ombudsman Act 2001. The alleged breaches of r 283 will undoubtedly form a significant part of the applicant's reinstatement case.

[29]    For the applicant it was submitted by Mr Farren that the unambiguously mandatory

form of the language of r 283 requires that substantial weight be given to that

language. He relied on a passage in Chase Oyster Bar Pty Ltd v Hamo Industries

6

Pty Ltd where Spigelman, CJ said, in the course of explaining the principle in

Project Blue Sky, that the:

"first textual indicator that is always of significance is the mode of expression

of the element directly in issue. Substantial, indeed often, but not always,

determinative, weight must be given to language which is in mandatory

7

form."

[30]    Whilst acknowledging the significance of the mode of expression of r 283, I am also mindful of the cautionary note sounded in the joint judgment in Project Blue Sky where their Honours said:

"The cases show various factors that have proved decisive in various contexts,

but they do no more than provide guidance in analogous circumstances. There is

no decisive rule that can be applied; there is not even a ranking of relevant factors

8

or categories to give guidance on the issue."

[31]    It seems to me likely that in the vast majority of situations where it is asserted that an action is void, the language of the legislation relating to the performance of the action, will have been couched in mandatory terms.

[32]   Mr Farren then points to r 283(2) with its exclusion from consideration of matters beyond those contained in the required notice, as enforcing his submission that failure to comply with the requirements of r 283(1) renders the disciplinary action void.

[33]   It seems to me that r 283 does no more than require that in exercising disciplinary powers against a local government employee, the council afford that employee natural justice, and spells out how it is to be afforded. As Mr Farren put it:

"It is trite law that, as part of affording natural justice … the subject of

proposed disciplinary action is entitled to proper notice of the disciplinary

action being proposed, the grounds upon which such action is said to be

justified, particulars of the conduct alleged to support those grounds and a fair opportunity to answer the case notified against [him or her], before

9

disciplinary action is taken."

[34]   Given that some local government entities are quite small and may not have dedicated human resources personnel, it is not surprising that guidance is provided in the regulations.

[35] An inquiry into whether an employee had been afforded natural justice prior to having his or her employment terminated is quintessentially a matter that goes to the fairness of the dismissal. As the parliament gave to this commission jurisdiction to determine whether the dismissal of a public service employee was unfair and, in the event that it was, to provide a remedy, it seems to me that that militates against a conclusion that the parliament intended that a failure to act in accordance with r 283 would render that act invalid. The parliament has provided a remedy for such a breach under Part 2 of Chapter 3 of the IR Act.

[36]    On fine balance, it seems to me that it is not a purpose of the legislation that an act done in breach of its provisions should be invalid.

[37]    Mr Farren faintly argued, in the alternative, that the council had denied the applicant natural justice or procedural fairness and that such a denial was an error of law that renders an administrative maker's decision void. He relied on the alleged breaches of the requirements of r 283 as demonstrating that breach. As I have already indicated, it seems to me that the regulation spells out the procedural requirements for the provision of natural justice. There is not another, concurrent, requirement to afford common law natural justice. In a sense r 283 covers the field, and I have held that its breach does not render the decision void. Accordingly I do not accept this submission.

[38] As a third ground Mr Farren submitted that the existence of the CEO's satisfaction that the employee engaged in one or more of the classes of conduct prescribed in r 279 is a jurisdictional fact, the existence of which is a condition precedent to the exercise of the s 197 disciplinary power and that there is no evidence that the CEO was satisfied that the applicant had engaged in any such conduct. Even if it be the case, without so finding, that the CEO's satisfaction is a condition precedent, I am not persuaded that there is no evidence to support a finding that he was so satisfied. In the absence of any submissions to the contrary, I would have thought that the Gadens' report was something upon which the CEO could have founded such a belief. I reject the third of the applicant's grounds.

[39]    In the circumstances, the application for a declaration is dismissed.

[40] After the hearing I invited the parties to address me on whether I should exercise my discretion under s 331 of the IR Act to refrain in the public interest from further dealing with this matter. I received supplementary submissions on this point with the applicant urging me not to refrain and the council urging me to the contrary. As is evident, I decided not to refrain from further dealing with the matter. My reasons are largely due to the stage that the matter had reached by the time I raised the issue. The hearing had concluded, and I saw nothing to gain by not proceeding to make a decision. Given that the issue of whether the applicant has been denied natural justice will no doubt arise in the reinstatement proceedings, had an application under s 331 been made at the outset, I may well have refrained from dealing with this application as it is arguably in the public interest that all issues in contention between the parties be determined in the one proceeding.

1

[T1-24, Lines 40-46].

2
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355.
3
Ibid [93] per McHugh, Gummow, Kirby and Hayne JJ.
4
Ibid [95].
5
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 [97].
6
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] 78 NSWLR 393.
7

Ibid [40].

8
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 [91].
9

Applicant's submissions- 15 May 2014.