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 57Baker 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 464Byrne 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 737Downe 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 504Gardiner 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 44Jones v Lee [1980] ICR 310
Jones v Queensland Tertiary Admission Centre Ltd [2009] FCA 1382Paras v Public Service Body Head of the Department of Infrastructure [2006]…
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- AGLC
- Quinn v Overland [2010] FCA 799
- Case
- [2010] FCA 799
- Decision Date
CaseChat Overview and Summary
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
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].