Allan v State of Queensland [2018] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Nicole Allan v State of Queensland [2018] QIRC 036 PARTIES: Nicole Allan (Applicant) v State of Queensland (Respondent) CASE NO: GP/2017/17 PROCEEDING: General Protections DELIVERED ON: HEARING DATES: 15 March 2018 27 February 2018 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDER: 1. The application is refused; and 2. Costs are reserved. CATCHWORDS: INDUSTRIAL RELATIONS ACT 2016 - Application for dismissal of substantive application pursuant to s 541 of the Act; jurisdictional objections pursued; causal relationship between adverse action and workplace right challenged. CASES: Industrial Relations Act 2016 s 282, s 284, s 285, s 541. Fair Work Act 2009 s 341 Work Health and Safety Act 2011 part 6 Anti-Discrimination Act 1991 s 634 State of Queensland v Lockhart [2014] ICQ 006 M J and G M Quaedvlieg and K and S Tunny Pty Ltd and Larmel Transport Pty Ltd v Boral Resources (Qld) Pty Ltd (C/2005/68) Australian Licensed Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 APPEARANCES: Dr M Spry, Counsel, for the State of Queensland, instructed by Crown Law; Ms N Allan, self represented. -- 1 of 11 -- 1 Decision Introduction [1] Ms Allan lodged a general protections application with the Industrial Registry on 21 December 2017. In her application, Ms Allan describes the decision sought in the following terms: "To overturn the Department of Health management decision to place Ms Thomson in the same HHS that I'm engaged. The decision to place Ms Thomson in the same HHS as myself compromises my workplace rights to a safe workplace; breaches the intent of a Deed of Settlement agreed to by the State of Queensland; and compromises my ability to pursue professional development within my substantive workplace". [2] It is clear that Ms Allan is aggrieved by a decision of the Department of Health to place Ms Thomson in the same hospital and health service to that which employs her. Ms Allan has been substantively employed in Workforce Services, Logan Hospital, Metro South Hospital and Health Service (MSHHS) since 6 September 2017. Ms Thomson was appointed as Director, Workforce Services, MSHHS, at the Garden City office, Mt Gravatt, with effect from 30 October 2017. [3] Ms Thomson was an employee requiring placement following a period of maternity leave. She was placed in her role with MSHHS under an arrangement between the Department of Health and Metro South Hospital and Health Service. [4] Ms Allan's complaint is related to an earlier proceeding commenced in the Anti- Discrimination Commission. The proceedings were ended when the parties entered into a confidential deed of settlement. Ms Allan alleges that the placement of Ms Thomson at Garden City constitutes a breach of the deed of settlement. [5] Despite the inclusion of a confidentiality clause, Ms Allan discussed the content of the deed in her grounds to her general protections application. In particular, she claimed at paragraph 35 that "the intent of the Deed of Settlement was to eliminate the possibility of my coming into contact with Ms Thomson, directly and indirectly. This is the sole reason why I ceased pursuing the complaint and agreed to the settlement". [6] Ms Allan included in her grounds the content of an email that she had sent to Mr Mulholland, a director of workplace performance at the Department of Health. In the email she referred to the deed of settlement and said that the intent of the settlement was to remove her from Health Support Queensland "where I may come across any one of the 3 respondents". [7] The email was responded to by Theresa Hodges, Acting Chief Human Resources Officer, Department of Health. Included in Ms Hodges response was the statement that she had taken advice and that "it has been determined that the employment of Ms Thomson within the same work area is not a breach of the Deed of Settlement that you entered into last year, and in fact it would not have been possible to accommodate such a restriction within the Deed of Settlement given the size of the Health portfolio". -- 2 of 11 -- 2 [8] It is this alleged breach of the deed of settlement or the "intent" of the deed of settlement that Ms Allan considers to be the source or essential element of the adverse action taken against her. She asserts that the consequences of the breach of the deed, and the placement of Ms Thomson in the Garden City office, are that her right to a safe workplace, and her ability to pursue professional development, has been compromised. Legislation [9] The relevant parts of the relevant sections of the Industrial Relations Act 2016 (IR Act) are reproduced hereunder: 280 Action to which this part applies Subject to section 281, this part applies to the following action— (a) action taken by an employer; (b) action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer; (c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer— (i) to take, or not take, particular action in relation to another person; or (ii) to threaten to take, or not take, particular action in relation to another person. 282 Meaning of adverse action (1) Adverse action is taken by an employer against an employee if the employer— (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. … (6) Adverse action does not include action that is authorised under— (a) this Act or any other law of the State; or (b) a law of the Commonwealth. -- 3 of 11 -- 3 284 Meaning of workplace right (1) A person has a workplace right if the person— (a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or (b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or (c) is able to make a complaint or inquiry— (i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or (ii) if the person is an employee—in relation to his or her employment. (2) In this section— industrial body means— (a) the commission; or (b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers. 285 Protection (1) A person must not take adverse action against another person— (a) because the other person— (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Schedule 5 industrial law means— (a) this Act; or (b) another Act regulating the relationships between employers and employees. -- 4 of 11 -- 4 Adverse Action [10] Ms Allan alleges that the Department of Health has breached s 285 of the IR Act and has taken adverse action against her. Under the legislative scheme for Ms Allan to establish a breach of s 285 of the IR Act, the following three elements need to be satisfied: (i) That she has a workplace right or has exercised a workplace right (s 284); (ii) That there has been adverse action (s 282); and (iii) That the adverse action was taken because Ms Allan exercised a workplace right (s 285) [11] It follows, on the grounds advanced by Ms Allan, that she seeks to prosecute the following case: (i) She enjoys a right to a safe and healthy workplace environment and that she has a right to access professional development and career opportunities; (ii) That the decision to place Ms Thomson in the Garden City Office constitutes the adverse action; and (iii) That the decision to place Ms Thomson in the Garden City Office was made because she had a right to a safe workplace and because she had a right to access career opportunities. Application to dismiss [12] On 12 February 2018, the State of Queensland applied pursuant to s 541 of the IR Act for a decision that Ms Allan's general protections application be dismissed. The State of Queensland considered Ms Allan's general protections application to be misconceived and incapable of acceptance for a number of reasons including: (i) That the decision to transfer Ms Thomson was authorised under a law of the state and, pursuant to s 282(6) of the IR Act, cannot constitute adverse action; (ii) That the decision to transfer Ms Thomson to MSHHS was made by Ms Allan's former employer, the Department of Health. General protections claims can only be made in response to action taken by the current employer; and (iii) That Ms Allan's application fails to explain how Ms Allan's current employer took adverse action against her because she had a workplace right. (iv) The allegation that a workplace right has been compromised does not address the statutory test which requires consideration of whether the employer placed Ms Thomson at Garden City because Ms Allan had a workplace right; (v) The claimed right to a safe workplace is not a right under an industrial law but a right under workplace safety law which is excluded from section 284 of the IR Act; (vi) Any right that Ms Allan may have in terms of the operation of a deed of settlement did not amount to a workplace right under an industrial law; -- 5 of 11 -- 5 (vii) Any right that Ms Allan may have to professional development opportunities is not a workplace right. [13] The respondent submitted that it was not open to the respondent to secure the remedy she desires through the application of the general protections provisions of the IR Act. The submission was that if the allegations made by Ms Allan were correct, she has remedies available to her, but they are not remedies under the general protections provisions of the Act. [14] It was the respondent's submission that the application was fundamentally misconceived in that in alleging that the decision to place Ms Thomson in the Garden City office "compromised her workplace rights", Ms Allan is not addressing the legislative test which is to establish that the decision to place Ms Thomson in the Garden City officer was made because Ms Allan had a workplace right. [15] Section 541 of the IR Act gives the Commission power to dismiss Ms Allan's application or refrain from hearing, further hearing, or deciding the application, if the Commission considers that the cause brought by the application is trivial or that further proceedings are not necessary or desirable in the public interest. [16] In State of Queensland v Lockhart [2014] ICQ 006, DP O'Connor referred to authorities discussing the "public interest" in relation to the exercise of discretion under the then s 331 of the Industrial Relations Act 1999. Included in his considerations was the High Court decision in O’Sullivan v Farrer 168 CLR 210, where Mason CJ, Brennan, Dawson and Gaudron JJ wrote: "Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable … ". [17] In Quaedvlieg v Boral Resources (Qld) Pty Ltd1, Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell [2002] 1QdR 647 as follows: "There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules." 1Extract from Queensland Government Industrial Gazette, dated 23 December, 2005, Vol. 180, No. 21, pages 1209-1211 -- 6 of 11 -- 6 Deed of Settlement [18] In my view, while the applicant prosecuted a general protections application, her core complaint is that the terms of the deed of settlement were not observed. The operation of the deed of settlement is the central consideration. The respondent says that in determining to place Ms Thomson in the Garden City office, it acted consistent with the terms of the deed. Ms Allan on the other hand asserts that the respondent has breached the terms of the deed and it was not possible, if the deed had been adhered, to for Ms Thomson to have been placed in the Garden City office. [19] I do not accept that a deed of settlement entered into in a private negotiation associated with an anti-discrimination claim amounts to a workplace right pursuant to s 284 of the IR Act. The definition of industrial instrument in schedule 5 of the Act does not include a deed. Nor could a deed be said to be an industrial law or constitute an order made by an industrial body as defined in s 284(1) of the IR Act. Workplace Right [20] I accept that there is a prima facie case that rights pertaining to workplace health and safety matters are excluded from s 284 of the IR Act. The case to this effect turns primarily on the differences in expression of s 284 in the IR Act and the equivalent section (s 341) in the Fair Work Act 2009 (FW Act). Firstly the IR Act refers to industrial law and industrial instrument while the FW Act refers to "workplace law" and "workplace instrument". Secondly, s 12 of the FW Act in defines "workplace law" to include any other law that regulates the relationships between employers and employees "(including by dealing with occupational health and safety matters)". In contrast, "industrial law" in the IR Act is defined to include "another Act regulating the relationship between employers and employees". In short, despite an intention for the IR Act provisions to reflect the FW Act provisions, the reference to safety matters is excluded. [21] The respondent took the exclusion to be significant in circumstances where the adverse action provisions of the IR Act were modelled on those contained in the FW Act. Therefore, the omission of the reference to health and safety matters from s 284 of the IR Act demonstrates the legislature's intention to specifically exclude laws dealing with occupational health and safety matters from being deemed to be "industrial laws" under the IR Act. [22] The inclusion in Part 6 of the Work Health and Safety Act 2011 of extensive provisions dealing with discriminatory, coercive and misleading conduct which go beyond a replication of IR Act general protections provisions is further evidence of an intention that health and safety matters are not to be included in s 284 of the IR Act. [23] Ms Allan suggested that any deficiency could be cured by the inclusion in the relevant certified agreement of particular provisions dealing with health and safety. However these provisions are very limited in their scope and may be more likely to be construed as aspirational or facilitative provisions rather than expressions of rights. -- 7 of 11 -- 7 Professional Development [24] Ms Allan maintained that Ms Thomson's location at the Garden City premises prevented or restricted her participation in meetings at Garden City and interaction with colleagues working at Garden City. While she said that this placement compromised a workplace right, she did not identify the source of any right to access professional development opportunities. [25] I am not satisfied that Ms Allan's proposition that her professional development constitutes a workplace right can be sustained. While an award or an enterprise agreement might encourage, foster and facilitate the taking of opportunities for career advancement, I am not persuaded, on the available reasoning, that it is likely that these considerations would be held to give rise to a workplace right as contemplated by s 284 of the IR Act. [26] Further there are no provisions in the certified agreement or award applicable to Ms Allan which could be said to establish a right for Ms Allan to access career development opportunities or conversely impose specific obligations on Ms Allan's employer to implement or create particular opportunities. Current Employer [27] In her submission Ms Allan contested the proposition that a distinction should be drawn between MSHHS and the Department of Health when it came to a determination as to who was her employer at the time of making her application. For her part, she considered herself a continuing employee of the Department of Health and that it was this same employer that took the adverse action. She also submitted that, while she was assigned to MSHHS, the over-arching employer for the purpose of industrial matters is the Department of Health. [28] It was Ms Allan's argument in effect that the Department of Health held the ultimate authority for the movement of the relevant personnel and she did not accept that a distinction needed to be drawn between the Department of Health and MSHHS in terms of the identification of the employer under the general protections provisions. Ms Allan stated that the Department of Health was responsible for state-wide employment and industrial relations arrangements, including conditions of employment. [29] In her view both herself and Ms Thomson were employees of the Department of Health at the relevant time, and in her case, upon transfer to MSHHS she retained her Department of Health payroll number, her conditions of employment were unaltered and her payslip and payroll summary disclose that her employer is Queensland Health. Causal Relationship [30] General protections applications are typically taken in circumstances where an employee exercises a workplace right (for example by making a complaint against a supervisor) and in response to that exercise, the employer takes action against the employee that is adverse to their interests. [31] In this matter, while Ms Allan has a right to a safe workplace, she makes no complaint or exercises no concern about her workplace environment, nor claims to have been -- 8 of 11 -- 8 disadvantaged in her employment, until after a decision is taken to place Ms Thomson at the Garden City office. The taking of the adverse action therefore, precedes any active exercise or consideration of a workplace right. In these circumstances, a determination that the decision to take adverse action was made because Ms Allan had a workplace right seems problematic. [32] In Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222, Logan J stated: "In each instance, there must be a causal relationship between an intended taking of adverse action and the exercise or proposed exercise of a right, protected activity or holding of a particular status or characteristic." [33] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, the High Court stated that the task of the court was to "determine, on the balance of probabilities, why the employer took adverse action against the employee" and to ask whether it was because the employee had a workplace right or had exercised a workplace right. [34] Barclay is also authority for the proposition that the existence of a workplace right must have been a substantial and operative factor in the decision of the employer to take the adverse action. In their judgment, French CJ and Crennan J adopted the reasons of Mason J in General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676, (1976) 12 ALR 605, (1976) 51 ALJR 235 to the effect that, for an applicant to succeed, the reason for the adverse action must be "a substantial and operative factor" in the reasons for the adverse action. Gummow and Hayne JJ arrived at a similar conclusion at [127]: "In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence [said] to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry." [35] Ms Allan's right to a safe workplace is not in dispute. What is in dispute is whether the remedies she seeks are available under the general protections provisions. It is integral to the operation of these provisions that a breach of s 285 of the IR Act occur. A substantial and operative reason for the taking of adverse action must be because Ms Allan has a workplace right. [36] Ms Allan does not submit that adverse action was taken against her because she has engaged in any specific activity or course of action, rather she relies on the existence of a right to a safe workplace. There is no connection between an activity or action engaged in by Ms Allan and a decision by the Department of Health to secure employment for an employee requiring placement. The allegation made is simply that Ms Thomson was placed at the Garden City officer because she (Ms Allan) has a right to a safe workplace. -- 9 of 11 -- 9 [37] Ms Allan must establish that the substantial and operative reason for the placement of Ms Thomson at Garden City was because she (Ms Allan) had a right to a safe workplace. These considerations do not adequately satisfy the test of causality. It is highly improbable that such a course of action could be made out. [38] Ms Allan said that the in making the decision to place Ms Thomson at Garden City, the decision maker (Ms Hodges) "made this decision with a narrow view of the implications, including the limitations to access professional development opportunities, that compromise me feeling safe and supported in the workplace without risk to my safety and wellbeing". Ms Allan also submitted that while she did not perceive that the decision maker should attract blame for her decision, she stood by her claim that the decision to place Ms Thomson at Garden City represented adverse action and compromised her workplace rights under the prevailing certified agreement. [39] If the legislation could be read to mean that the line of inquiry to be followed was whether a reason for placing Ms Thomson at Garden City was to cause Ms Allan's workplace to become unsafe, then it follows that Ms Allan would be alleging malicious intent. In her submissions however Ms Allan does not allege that Ms Hodges acted maliciously in authorising the placement of Ms Thomson at Garden City. Ms Allan says that it was not her intent to place blame, nor did she perceive that there was any blame to be placed. It follows that Ms Allan is saying that it was not an operative part of the decision making process to adjust her workplace rights in determining to place Ms Thomson at Garden City. [40] For Ms Allan's general protections application to enjoy any prospects of success, Ms Allan's predicament cannot be found to be an unintended consequence of a decision to place Ms Thomson at Garden City, it must be a substantial and operative part of the reason for making the placement. Decision [41] Fundamentally, Ms Allan seeks to use the general protections provisions of the Act to remedy an injustice arising from an alleged breach of a deed of settlement executed following the commencement of a proceeding in the Anti-Discrimination Commission. [42] Two observations arise. Firstly, if she is correct and the deed has been breached, she should seek a remedy in the same place where she first brought her grievances. If Ms Allan's complaint was conciliated under the terms of the Anti-Discrimination Act 1991, and if a copy of the deed had been filed with the Anti-Discrimination Tribunal, pursuant to s 164(3) of the Anti-Discrimination Act 1991, then the deed is enforceable as if it were an order of the Anti- Discrimination Tribunal. [43] Secondly, if she is not correct, then she is trying to use the general protections provisions of the IR Act to try to retry a grievance that she pursued and ultimately settled under the Anti-Discrimination Act. [44] Despite the motivations, if it were accepted that the appellant had a workplace right, and that the decision to place Ms Thomson at Garden City was adverse action under s 285 of the Act, then, under s 306 of the Act, it is presumed that the Department of Health took -- 10 of 11 -- 10 adverse action because of the workplace right, unless the Department of Health proves otherwise. [45] In these circumstances, the Department of Health would be required to prove that it placed Ms Thomson at Garden City because Ms Allan had a right to a safe workplace. Prima facie, such a question could not be sensibly or fairly tried. [46] I am not satisfied that, if the application stays afoot, it has any real prospects of success. The application to dismiss raises a number of substantive issues, many of which, if sustained, would result in dismissal of the general protections application either on merit or for want of jurisdiction. Whether Ms Allan has a workplace right, whether the Department of Health can be considered Ms Allan's current employer, and whether the necessary causal relationship exists between the taking of adverse action and the exercise of a right, are all questions which point to either a jurisdictional deficiency or to deficiencies in merit which render the prospects of success unlikely. [47] Nor am I satisfied that the questions that Ms Allan wants tried are questions to be answered in a general protections proceeding. Her essential grievance that the Department of Health has repudiated a deed of settlement is a matter to be resolved in another place or in a different proceeding. [48] I do not consider that further proceedings in matter number GP/2017/17 are necessary or desirable or in the public interest. Ms Allan's application is therefore dismissed. -- 11 of 11 --