Quinn v Overland

Case [2010] FCA 799

FEDERAL COURT OF AUSTRALIA

Quinn v Overland [2010] FCA 799

Citation: Quinn v Overland [2010] FCA 799
Parties: CATHERINE ANNE QUINN v SIMON OVERLAND (SUED IN HIS CAPACITY AS CHIEF COMMISSIONER OF POLICE) and STATE OF VICTORIA
File number(s): VID 166 of 2010
Judge: BROMBERG J
Date of judgment: 28 July 2010
Catchwords:

INDUSTRIAL LAW – Suspension of employee pending investigation of misconduct – application for interlocutory injunction to restrain suspension – Public Administration Act 2004 (Vic) ss 8, 20(3) – whether private right of action conferred – whether power to suspend is to be exercised fairly – whether natural justice applicable – misconduct and condonation – serious questions to be tried – principles on grant of interlocutory relief in context of employment relationship – right to work – balance of convenience and discretionary factors favour grant of relief.

PUBLIC SERVICE - Suspension of employee pending investigation of misconduct – application for interlocutory injunction to restrain suspension – Public Administration Act 2004 (Vic) ss 8, 20(3) – whether private right of action conferred – whether power to suspend is to be exercised fairly – whether natural justice applicable – misconduct and condonation – serious questions is to be tried – principles on grant of interlocutory relief in context of employment relationship – right to work – balance of convenience and discretionary factors favour grant of relief.

Legislation:

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schedule 16

Federal Court Act 1975 (Cth) s 23

Public Administration Act 2004 (Vic) ss 3, 8, 20
Workplace Relations Act 2006 (Cth)
Cases cited:

Australasian Transport Officers’ Association v Department of Motor Transport (1988) 25 IR 235
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57

Baker v Corporation of City of Salisbury (1982) 2 IR 168

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

CH Giles & Co Limited v Morris [1972] 1 WLR 307
Crisp v Holden (1910) 54 SJ 784
Dietman v Brent London Borough Council [1987] ICR 737

Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633
Foster v Secretary to the Department of Education and Early Childhood Development (Vic) [2008] VSC 504

Gardiner v State of Victoria [1999] 2 VR 461

Gregory v Philip Morris Ltd (1988) 80 ALR 455

Gregory v Philip Morris Ltd (1987) 77 ALR 79
Hill v CA Parsons Ltd [1972] 1 Ch 305
Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44

Jones v Lee [1980] ICR 310
Jones v Queensland Tertiary Admission Centre Ltd [2009] FCA 1382

Paras v Public Service Body Head of the Department of Infrastructure [2006]…

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Details
AGLC
Quinn v Overland [2010] FCA 799
Case
[2010] FCA 799
Decision Date

CaseChat Overview and Summary

In Quinn v Overland, the applicant, Catherine Quinn, sought interlocutory relief to prevent her suspension from employment pending an investigation into alleged misconduct. The respondents, including the Chief Commissioner of Police and others, had suspended Ms Quinn from her position as Manager of the Drug and Alcohol Branch at the Victoria Police Forensic Services Centre. The primary legal issues were whether a private right of action was conferred under the Public Administration Act 2004 (Vic) for the suspension of an employee, whether the power to suspend should be exercised fairly, and whether natural justice principles apply. Additionally, the court had to consider the principles governing the grant of interlocutory relief in employment relationships, the right to work, and the balance of convenience and discretionary factors.

The court examined the relevant statutory provisions and found that while there is a serious issue regarding the impartiality of an investigator, it was not convinced that the same obligation applied to the employer exercising the power to suspend. Given the circumstances, including the respondent’s willingness to reconsider the decision and the possibility of innocent explanations for the conduct in question, the court did not find it reasonably arguable that the decision-maker could not bring an impartial mind to the matter. The court also noted the principles relevant to the grant of an injunction to continue an employment relationship, highlighting the diminishing relevance of the traditional reluctance of courts to grant specific performance of employment contracts. It found that modern unfair dismissal regimes and the reinstatement of dismissed employees into their former roles without significant issues supported the argument that a breakdown in confidence is not necessarily irreconcilable.

Given the balance of convenience and discretionary considerations, the court granted the relief sought by Ms Quinn. This decision allows Ms Quinn to resume her employment pending the hearing and determination of the proceeding or further order. The court restrained the respondents from treating as valid or acting upon the directions that suspended Ms Quinn from work and restricted her from visiting Victoria Police premises or speaking with other employees about the handling of drug exhibits. The costs of the application were reserved.

Orders

Orders of the court

1. Until the hearing and determination of the proceeding or further order, the respondents be restrained from treating as valid, or acting upon, the directions given to the applicant on 14 July 2010 suspending the applicant from work, requiring the applicant not to visit any Victoria Police premises, and requiring the applicant not to speak with any other Victoria Police employees about the matters of the handling of drug exhibits at Victoria Police.

2. The costs of this application be reserved.

Note:

Background

Background to the litigation

This is an application for interlocutory relief brought by the applicant Catherine Quinn. Ms Quinn seeks interim relief in relation to directions given by the second respondent suspending her from her employment. For the reasons that follow I have determined to grant Ms Quinn interim relief, the effect of which will be that pending the hearing and determination of this matter or further order, Ms Quinn will be able to resume work.THE FACTS Ms Quinn is employed as a permanent officer of the Victorian Public Service in the position of Manager of the Drug and Alcohol Branch of the Victoria Police Forensic Services Centre (“the Forensic Services Centre” or “the Centre”). Ms Quinn is a forensic scientist. The Drug and Alcohol Branch is comprised of Forensic Officers who analyse drug samples, attend crime scenes, analyse and examine items related to illicit drug manufacture and analyse drug samples for intelligence or evidentiary purposes. Additionally, Forensic Officers analyse blood samples for the presence of drugs and alcohol. In the organisational structure of the Forensic Services Centre, the Drug and Alcohol Branch is a branch of the Chemistry Division which is headed by an Assistant Director. As Manager of the Drug and Alcohol Branch, Ms Quinn reports to the Assistant Director of the Chemistry Division. Within a separate division of the Centre known as the Business and Strategic Services Division, there exists a unit known as the Forensic Exhibit Management Unit (“FEMU”). The Forensic Services Centre is headed by a Director. The Director is answerable to the first respondent, the Chief Commissioner of Police. On 10 December 2009, the Victorian Ombudsman presented a report to the Victorian Parliament in relation to an investigation into the handling of drug exhibits at the Forensic Services Centre. The Ombudsman’s investigation was initiated by a disclosure under the Whistleblowers Protection Act 2001 (Vic) regarding the manner in which drug exhibits were being managed at the Centre. As the report identifies, there are two areas within the Forensic Services Centre that have responsibility for the management of drug exhibits. The FEMU is the repository for all powder drug exhibits, and is responsible for their ultimate destruction. The Drug and Alcohol Branch is responsible for sampling and analysing powder drugs, volatile chemicals and precursors, and associated clandestine laboratory exhibits. It is also responsible for storing and destroying hazardous clandestine laboratory exhibits. The Ombudsman’s investigation concluded that arrangements dealing with the management of drug exhibits were ineffective. In summary, the inefficiencies identified included a lack of processes and records for the tracking of drug exhibits held at the Centre; a lack of rigour in relation to the auditing of drug exhibits held by the Drug and Alcohol Branch and the FEMU; a need to improve business processes relating to drug exhibit management including by the revision of manuals; a need to improve leadership and direction to address underlying problems with the management of drug exhibits; and a need to improve the arrangements for sampling and disposing of drug exhibits.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Whilst I would be prepared to accept that a serious issue arises that an investigator appointed to investigate misconduct should be free of either actual or apprehended bias in the context of what is required by clause 17, I am not convinced that there is a serious issue that the same obligation arises for an employer exercising the power of an employer to suspend. In any event, given Ms Munn’s preparedness to withdraw her letter of 5 March 2010 and that each aspect of her conduct which Ms Quinn seeks to impugn is capable of innocent explanation, I do not think it reasonably arguable that Ms Munn could not have brought an impartial and unbiased mind to making the new decision to suspend. BALANCE OF CONVENIENCE AND DISCRETIONARY CONSIDERATIONS This is not a case in which specific performance of an employment contract is being sought through the remedy of an injunction. The employment contract between Ms Quinn and the respondents is operative and subsists. Like the successful plaintiff in Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633, Ms Quinn seeks a restraint on particular directions given by her employer, including the direction which suspends her from performing work. Despite that, it would be wrong not to give some consideration, in the exercise of my discretion, to the principles relevant to the grant of an injunction to continue an employment relationship, as there are parallels between an order requiring the continuance of an employment contract and an order lifting a suspension. The historical reluctance of courts to grant specific performance of employment contracts needs to be understood by reference to the original rationale. That reluctance was based on two primary considerations – the need for mutual confidence and the perceived need to avoid constant supervision by a court. Courts have increasingly realised that those considerations are no longer as applicable to modern day employment relations as historically was the case: Turner v The Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 at 192-193 per Northrop, Keely and Gray JJ and Gregory v Philip Morris (1988) 80 ALR 455 at 482 per Wilcox and Ryan JJ. Of particular significance to the continuing relevance of the original rationale, is that throughout the length and breadth of Australia, Parliaments have enacted unfair dismissal regimes which provide for the reinstatement of a dismissed employee as an available remedy. These regimes have now been in place for over a generation. Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential: Downe at [462].