Sloan v TAFE Queensland - [2024] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Sloan v TAFE Queensland [2024] QIRC 139
PARTIES:	Sloan, Joseph William (Applicant) v TAFE Queensland (Respondent)
CASE NO:	B/2023/94
PROCEEDING:	Application in existing proceedings
DELIVERED ON: HEARING DATE:	22 May 2024 22 May 2024
MEMBER: HEARD AT:	Dwyer IC Brisbane
ORDER:	*Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016* (Qld) Matter B/2023/94 is dismissed**
CATCHWORDS:	INDUSTRIAL LAW ¾ application in existing proceedings – consideration under s 541 of the Industrial Relations Act 2016 (Qld) – where applicant sought order to stop bullying – absence of clear particulars – opportunity to amend – particulars of complaint unclear – application by respondent to refrain from dealing with application – jurisdiction considered – public interest considered – application dismissed.
LEGISLATION:	Industrial Relations Act 2016 (Qld) s 272, s 273, s 274, s 275, s 541
CASES:	Bartolo v Doutta Galla Aged Care Services Ltd (No.2) [2015] FCCA 345 Bowker v DP World Melbourne Ltd [2014] FWCFB 9227 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Greenhall v State of Queensland (Queensland Corrective Services) & Anor [2021] ICQ 19 Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218; [2009] FCA 1382 Mac v Bank of Queensland Ltd (2015) 247 IR 274; [2015] FWC 774 Re SB [2014] FWC 2104 State of Queensland v Lockhart [2014] ICQ 006 Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12 Wilkins v Council of the City of Gold Coast [2020] QIRC 172

Reasons for Decision
ex tempore

Introduction

Mr Joseph Sloan is employed as a Vessel Master with TAFE Queensland (‘the respondent’). Mr Sloan has had a previous period of employment with the respondent, but his most recent engagement extends back to 2019.

On 30 October 2023, Mr Sloan was suspended with pay.[1] On 13 November 2023, Mr Sloan was provided with show cause correspondence setting out the particulars of 10 allegations for which the respondent considered he may be liable to discipline (‘the show cause letter’).[2]
[1] Exhibit 2 – attachment 11.
[2] Exhibit 2 – attachment 15.
On 27 November 2023 Mr Sloan filed an application for an order to stop bullying (‘the application’) pursuant to s 273 of the Industrial Relations Act 2016 (Qld) (‘IR Act’).
In accordance with the requirements of s 274 of the IR Act, the matter was listed for mention on 5 December 2023 to ascertain the degree of priority required to be given to the matter. At that mention, the parties agreed to participate in a conciliation conference to be scheduled on 8 January 2024. At the time of the conference, Mr Sloan was represented by an industrial advocate.
A significant barrier to meaningful conciliation at the conference on 8 January 2024 was the inadequate particulars contained in the application. There was little (if any) information addressing the statutory elements to support a complaint of bullying, and to the extent there was, it was difficult to discern. It was agreed at the conference…

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 Sloan v TAFE Queensland

Details

AGLC: Sloan v TAFE Queensland [2024] QIRC 139
Case: [2024] QIRC 139
Decision Date: 22 May 2024 22 May 2024

CaseChat Overview and Summary

The case of Sloan v TAFE Queensland was heard before the Queensland Industrial Relations Commission. The applicant, Mr. Sloan, sought an order to stop what he alleged to be bullying by the respondent's managers, TAFE Queensland. The Commission was asked to consider the matter under section 541 of the Industrial Relations Act 2016 (Qld). The core legal issues revolved around the vagueness of Mr. Sloan's particulars of complaint and whether the Commission should exercise its discretion to dismiss the application or allow it to proceed.

The Commission noted the absence of clear particulars in Mr. Sloan's application and considered whether it should provide an opportunity for amendment. The court found that Mr. Sloan had been given multiple opportunities to clarify his claims but had not provided any compelling evidence of bullying. Furthermore, the Commission was mindful of the public interest in ensuring that disciplinary processes were not unduly delayed, especially when the applicant continued to receive full pay. The Commission concluded that the flaws in Mr. Sloan's case and the lack of compelling facts in favour of hearing the matter outweighed the respondent's concerns about jurisdictional barriers or misconceived arguments.

In light of the analysis, the Commission decided to dismiss the application. The decision was grounded in the need to balance the interests of both parties and the public interest in ensuring that the Commission's resources were not wasted on applications lacking merit. The Commission held that the absence of compelling facts supporting Mr. Sloan's claims justified the exercise of its discretion to dismiss the matter. Consequently, Mr. Sloan's application was dismissed, and no further opportunity for amendment was granted.

Orders

Orders of the court

Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) Matter B/2023/94 is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is apposite to revisit the words of (former) President Martin set out earlier in these reasons in Campbell:[46]The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest…The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.(Emphasis added)[46] Ibid [28]. Further, the Commission as currently constituted in Triplow v Leidos SAR Services Pty Ltd recently held:[47]While it is important not to take the respondent’s case 'at its highest' when contemplating the discretion given by s 541 of the IR Act, there is equally no requirement to take their case at its lowest. In a balanced consideration of interests, unless there was some compelling contradictory evidence, there should be no reason why the Commission could not rely on relevant contemporaneous correspondence as evidence of the reasons why a respondent took certain action.[47] [2024] QIRC 12, [74]. Having had multiple opportunities to present a semblance of a meritorious application, including an opportunity to file documents etc, nothing produced by Mr Sloan invites even the vaguest speculation of bullying. It may well be that Mr Sloan was correct in some of his views about safety or even his rights to access certain safety information. But it is a long journey from there, to a conclusion that the conduct of the respondent’s managers (seemingly informed by genuine, but different views) was bullying. Similarly, the disciplinary process that triggered Mr Sloan’s suspension on 30 October 2023 is apparently anything but an unusual occurrence in this employment relationship given the uncontested history of warnings already issued to Mr Sloan regarding similar aggressive conduct in the preceding years.[48][48] Exhibit 2 – attachments 8 and 9. Far from taking the respondent’s case at its highest, it is the readily apparent flaws in Mr Sloan’s own case that render the matter liable to be dismissed, though they alone are not necessarily enough. Even where there are grave concerns about jurisdictional barriers or misconceived arguments, it remains a significant step to refuse a party their right to be heard. A properly balanced consideration of the discretion allowed by s 541 of the IR Act will require the Commission to have before it compelling facts that the public interest favours the Commission exercising a discretion to dismiss or refrain from hearing a matter. The respondent indicated at the hearing that there is no intention at this time to review Mr Sloan’s suspension with respect to his receipt of remuneration. If Mr Sloan were given the opportunity to have his application heard, it would invariably take many more months to do so and would ultimately see him continue to receive full pay while the disciplinary process was stayed.