Darlington v State of Queensland (Queensland Police Service) [2016] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Darlington v State of Queensland (Queensland Police Service) [2016] QIRC 072 PARTIES: Irene Darlington (Applicant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: B/2016/14 PROCEEDING: Application for Injunction DELIVERED ON: 4 July 2016 HEARING DATE: 1 July 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Knight ORDER: 1. Application Dismissed CATCHWORDS: INDUSTRIAL RELATIONS – unfitness for duty on medical grounds – proposed dismissal on future date under Police Service Administration Act 1990 – employee lodges grievance under Police Service Award - State 2012 – status quo provisions - employee sought injunction from Commission to restrain Police Service from proceeding with dismissal until grievance process concluded - alleged breach of Award by Respondent not preserving the status quo – whether the Commission has power to grant the injunction order – whether s 277(11) prevents the granting of an injunction – whether the substance of the Applicant’s application is for an injunctive order to retrain a proposed contravention of s 73 of the Act. CASES: Industrial Relations Act 1999, s 73, s 77, s 277 Currie v Brisbane City Council, B/2011/42 Elford v State of Queensland (State Library of Queensland) [2015] QIRC 176 -- 1 of 10 -- 2 Ganly v Queensland Audit Office [2015] QIRC 108 Hall (Inspector of Taxes) v Lormier [1992] 1 WLR 939 APPEARANCES: Ms S. Anderson, Counsel instructed by Susan Moriarty and Associates, for the Applicant Mr J. Merrell, Counsel instructed by Queensland Police Commissioner, for the Respondent Decision [1] Ms Irene Darlington, is a sworn police officer who currently holds the rank of Senior Constable. In September 2014, Ms Darlington was requested by her employer, Queensland Police Service, to attend a medical examination with an orthopedic surgeon under s 8.3 of the Police Service Administration Act 1990 (Qld). At the conclusion of the examination, the specialist opined that it was unlikely Ms Darlington would return to frontline police duties in the foreseeable future given the condition of both of her knees. [2] Over the following eighteen months, Ms Darlington and the Queensland Police Service continued to discuss, either in writing or in person, her future employment with the service. On 27 May 2016, Ms Darlington was advised that she would be dismissed from her employment with the Queensland Police Service due to her medical incapacity, with effect on 4 July 2016. [3] On 23 June 2014, Ms Darlington filed a Grievance with Queensland Police in respect of the decision to terminate her employment. In the same correspondence, Ms Darlington sought to preserve the status quo such that her employment would continue on past 4 July 2016 whilst her related grievance was addressed. On 28 June 2014, Queensland Police acknowledged receipt of Ms Darlington’s formal grievance notification, but noted Ms Darlington’s dismissal would still take effect at midnight on 4 July 2016. [4] Ms Darlington is now seeking an injunctive order restraining Queensland Police Service from terminating her employment until such time as her related grievance is dealt with in accordance with the procedures contained in clause 3.2 of the Police Service Award – State 2012 ('the Award'). [5] In support of her application, Ms Darlington relies on Elford v State of Queensland (State Library of Queensland)1 noting the threatened breach of an industrial instrument in this matter, is the failure of the Queensland Police Service to maintain the status quo whilst the grievance procedure is being followed. 1 [2015] QIRC 176 -- 2 of 10 -- 3 [6] In response, Queensland Police Service contends: (a) the Queensland Industrial Relations Commission has no power to issue an injunctive order pursuant to s 277 of the Industrial Relations Act 1999 ('the Act'), in the present circumstances; or (b) if the Commission has jurisdiction, it should exercise its discretion not to grant the injunction. [7] In particular, the Queensland Police Service has pointed to s 277(11) of the Act which provides: "The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90." Factual Background and Processes That Proceeded This Application [8] Irene Darlington commenced employment with the Queensland Police Service in 1993 and has been working for the service for approximately twenty-three years. Ms Darlington has achieved the rank of Senior Constable. [9] Ms Darlington's employment is governed by a variety of statutory instruments and legislation including the Police Service Award – State 2012, Queensland Police Service Certified Agreement 2013 and the Police Administration Act 1990 (Qld). [10] In April 2013 Ms Darlington injured her knee, which eventually resulted in knee replacement surgery. The surgery took place in November 2013. Following recovery and rehabilitation, Ms Darlington gradually returned to modified duties within the service from February 2014. [11] In September 2014 Ms Darlington was directed by Queensland Police Service to attend a medical examination. This request was made pursuant to s 8.3(2) of the Police Service Administration Act 1990 (Qld). [12] In the same month, the specialist who undertook the medical examination noted it was unlikely Ms Darlington would to be able to return to frontline police duties in the foreseeable future given the condition of both of her knees. Following the findings in the report, discussions were held between Queensland Police and Ms Darlington in respect of her future employment with the service over a period of some eighteen months. [13] In a letter from Queensland Police of 7 September 2015, Ms Darlington was provided with two options in respect of her future employment. One option required her to consider transitioning into an appropriate paid civilian position within the service, or if this was not suitable, it was proposed she bring her service with the police force to an end on medical grounds. [14] The same letter includes references to previous correspondence between the parties regarding the proposed career transition process, as well as occasions where an extension of time was afforded to Ms Darlington to obtain and provide specialist medical information in support of retaining her substantive position. -- 3 of 10 -- 4 [15] On 13 October 2015, Ms Catherine Coake, Ms Darlington's legal representative at the time, forwarded an email to Queensland Police requesting additional time to obtain further medical evidence. [16] On 5 November 2015, Assistant Commissioner Gee acknowledged Ms Coake's prior correspondence and agreed to grant an extension of time for Ms Darlington to respond to the proposal for career transition. The proposed new deadline was 8 January 2016, which was approximately one year after the first extension was granted on 26 February 2015. [17] Further emails prepared by Ms Coake dated 3 and 15 December 2015 on behalf of Ms Darlington raised the prospect of arranging a meeting with Assistant Commissioner Gee to discuss Ms Darlington’s future employment options with Queensland Police. [18] On 3 March 2016, a letter from Assistant Commissioner Gee to Ms Darlington confirmed a decision to medically retire Ms Darlington from the police service at midnight on 13 May 2016. In the same letter, Assistant Commissioner Gee offered a further opportunity for Ms Darlington to transition to a staff member position within the Queensland Police Service. [19] On 29 March 2016, Ms Darlington wrote to Queensland Police requesting: (a) a review of Assistant Commissioner Gee's decision; (b) an extension of time to allow for the Queensland Police Union respond to the matter; (c) and a meeting with Assistant Commissioner Gee. [20] On 3 May 2016, Assistant Commissioner Gee, referring to previous emails and meetings with Ms Darlington, accepted her proposal to resign on 4 January 2017, "subject to any determination which the Deputy Commissioner may make regarding your medical retirement." [21] On 27 May 2016 Acting Deputy Commissioner O'Regan forwarded correspondence to Ms Darlington in respect of her employment with Queensland Police, noting: "Notwithstanding Assistant Commissioner Gee's acceptance of your resignation effective on that date, action taken under section 8.3 of the Act remains open to me." [22] In the same correspondence, Acting Deputy Commissioner O'Regan notes multiple extensions afforded to Ms Darlington to obtain further medical information, and goes on to inform Ms Darlington that pursuant to s 8.3(4) of the Police Service Administration Act 1990, her employment would come to an end on the basis of her medical incapacity, with effect from midnight of 4 July 2016. [23] On 23 June 2016, Ms Darlington lodged a grievance with Queensland Police in respect of the decision to terminate her employment as well as another pay related grievance. In the same grievance, Ms Darlington requested the status quo be maintained in respect -- 4 of 10 -- 5 of her current employment, whilst the procedure contained in the Police Award was being followed. [24] On 28 June 2016, Queensland Police declined to invoke the status quo, maintaining Ms Darlington’s employment would come to an end due to her medical incapacity at midnight, on 4 July 2016. Relevant Legislation [25] Section 277 of the Act provides the Queensland Industrial Relation Commission with the power to grant injunctions. Section 277 (1) states: "(1) The commission may, on application, grant the injunctive order it considers appropriate— (a) to compel compliance with an industrial instrument, a permit or this Act; or (b) to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act." [26] In accordance with s 277(2) an application for an injunction may be made by "a party to…an industrial dispute." Schedule 5 to the Act defines "industrial dispute" to mean: "(a) a dispute, including a threatened or probable dispute, about an industrial matter; or (b) a situation that is likely to give rise to a dispute about an industrial matter." [27] Section 7 of the Act provides a definition for 'industrial matter': "(1) An industrial matter is a matter that affects or relates to— (a) work done or to be done; or (b) the privileges, rights or functions of— (i) employers or employees; or (ii) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1." -- 5 of 10 -- 6 [28] There has been no contest between the parties on the question of whether or not Ms Darlington’s grievance relates to an industrial matter. [29] The Respondent's submissions refer heavily to s 277(11) which states: "The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A." [30] The headings for the sections of the Act which s 277(11) refer, are as follows:  s 73 When is a dismissal unfair  s 83 What employer must do to dismiss employee  s 87 Orders about severance allowance and other separation benefits  s 90 Employer must give notice of proposed dismissals  s 90A Employer must consult with employee organisations about dismissals These five sections of the Act refer to circumstances and procedures surrounding the termination of an employee's employment. What are the issues in relation to the application for an injunction? [31] Ms Darlington’s application seeks to restrain Queensland Police from proceeding with the decision to dismiss her employment on 4 July 2016, until the related grievances which she initiated on 23 June 2016, are dealt with in accordance with the procedure set out in clause 3.2 of the Award. [32] There is no argument between the parties that the subject matter of Ms Darlington’s grievance falls into the category of an ‘industrial matter’ within the meaning of the Act. As such, there are two issues for determination in relation to the application: (a) whether the Commission can exercise its power under s 277 in relation to the Application for Injunction; and (b) if the answer to (a) is yes, whether the Commission should exercise its discretion to grant the orders sought by Ms Darlington. Does the Commission have the power to grant the injunction sought? [33] Respondents submissions: Mr Merrell, Counsel for Queensland Police Service contends the Commission has no jurisdiction to grant an injunctive order pursuant to s 277 of the Act in the present circumstances. [34] Essentially, Queensland Police argue that although the form of the injunctive orders sought by the Applicant may be to compel compliance with the grievance procedure in the Award, the actual substance of Ms Darlington’s application, is for an injunctive order seeking to restrain a proposed contravention of s 73 of the Act. -- 6 of 10 -- 7 [35] In support of this position, Queensland Police pointed to the decision of Vice President Linnane in Currie v Brisbane City Council2 ('Currie') where she held the Commission had no power to issue injunctive relief to prevent the dismissal of an employee, noting: "Section 73 of the Act deals with the unfair dismissals so that the effect of s.277(11) of the Act is to prevent the Commission from exercising its discretionary power under s. 277 of the Act to grant an injunctive order in respect of the proposed contravention of s. 73 of the Act. Section 77 of the Act outlines those matters which the Commission must consider in deciding whether a dismissal was harsh, unjust or unreasonable. One such matter found in s. 77(c) of the Act is, in circumstances where the dismissal relates to an employee’s conduct, capacity or performance, whether the employee had been warned about the capacity, conduct or performance and whether the employee was given an opportunity to respond to the allegation about conduct, capacity or performance. Thus, if the Applicant alleges, there was some denial of natural justice or some unfairness in the events leading to the Applicant’s dismissal, then those matters can be dealt with in an unfair dismissal application…"3 [36] Mr Merrell highlighted ss 73 and 77 of the Act, which relevantly provide: 73 When is a dismissal unfair (1) A dismissal is unfair if it is— (a) harsh, unjust or unreasonable; or (b) for an invalid reason. 77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider— (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to— the operational requirements of the employer's undertaking, establishment or service; or the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance— whether the employee had been warned about the conduct, capacity or performance; or whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and 2 B/2011/42 – decision http://www.qirc.qld.gov.au 3 Ibid [5] -- 7 of 10 -- 8 (d) any other matters the commission considers relevant. [37] Queensland Police submits the nature of Ms Darlington’s grievance focuses on issues of her capacity and the alleged harshness or unreasonableness of her proposed dismissal on 4 July 2016. Furthermore, that the remedy the Applicant is seeking is reinstatement (albeit only until January 2017) which is a remedy that may be ordered by the Commission under section 78 of the Act. [38] By way of example, Queensland Police referred to the particulars of Ms Darlington’s grievance which was lodged with her employer on 23 June 2016. In her complaint, Ms Darlington sets out four reasons why the decision by Queensland Police to dismiss her on medical grounds is unreasonable, and then seeks re-instatement (albeit for a limited period) as part of the outcome sought. [39] Queensland Police contends Ms Darlington’s grievance is essentially about a proposed contravention of s 73 of the Act (unfair dismissal). Mr Merrell argues s 277(11) has been specifically included in the Act to prevent the Commission from providing interlocutory relief in circumstances where an employee is being or has been terminated. [40] It is further submitted the authorities relied on by the Applicant, namely Ganly v Queensland Audit Office4 and Elford v State of Queensland (State Library of Queensland5 are unhelpful and do not assist Ms Darlington in that neither of those matters involved circumstances where a formal decision had been made that their employment was being terminated; thus enlivening s 277 (11) of the Act. [41] Queensland Police argues the real purpose of clause 3.2 under the Award is for the prompt resolution of grievances as they arise. It contends the real intent underpinning Ms Darlington’s application for injunctive relief is to frustrate a lawful decision made under another Act in circumstances where the Applicant has been afforded every opportunity over a long period of time to persuade the Commissioner’s delegate not to dismiss her on medical grounds and where the substance of the Applicant’s grievance, at the very least, initially arose more than twelve months ago. [42] Applicant's submissions: Ms Anderson, Counsel for the Applicant submits that Ms Darlington simply wishes to exercise her rights pursuant to the Grievance Procedure set out at clause 3.2 within the Award. [43] She contends the Act provides for injunctive relief in circumstances where there is a threatened breach of an Award, which in this matter, she argues, is the refusal by the Police Service to maintain the status quo in circumstances where a related grievance has been lodged by Ms Darlington. [44] Ms Anderson submits this not a matter about unfair dismissal, as was the case in Currie, but instead is an application seeking injunctive relief in circumstances where Ms Darlington has lodged a grievance in accordance with clause 3.2 of the Award it is submitted Queensland Police is disregarding their obligations to comply with the status quo provisions under the Award. 4 [2015] QIRC 108 5 [2015] QIRC 176 -- 8 of 10 -- 9 [45] In her grievance to Queensland Police, Ms Darlington highlighted the status quo provisions within the grievance procedure, outlined in clause 3.1.2 of the Award, which included: "Subject to legislation, while the grievance procedure is being followed, normal work is to continue, except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue whilst the procedure is being followed." Conclusion and Orders [46] In this matter, when determining whether the Commission has the power to grant the injunction sought it is essential to examine the context of this application and to be mindful of its substance. The importance of regarding a problem by stepping back and viewing it in its substance as a whole was considered by Mummery J in Hall (Inspector of Taxes) v Lormier6 who observed: "The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details…" [47] Having considered the submissions of both Ms Darlington and Queensland Police, I have concluded this application is unable to succeed on the following grounds: (a) The Commission is bound by s 277(11) of the Act which prevents it from granting injunctive relief in respect of a proposed contravention of s 73 of the Act. (b) Section 73 of the Act deals directly with unfair dismissals. (c) It follows that I am prevented from exercising my discretionary power under s 277 of the Act in circumstances where there is a proposed contravention of s 73 of the Act. (d) In s 73, a dismissal is defined as being unfair if it is, “harsh, unjust or unreasonable” (my emphasis). (e) Section 77 of the Act sets out a series of matters the Commission must consider when determining an unfair dismissal application. (f) Included in those matters are whether the dismissal relates to the employee’s conduct, capacity or performance or whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance, and any other matters the commission considers relevant (my emphasis). 6 [1992] 1 WLR 939, 944 -- 9 of 10 -- 10 (g) In her grievance, Ms Darlington specifically describes the decision by Queensland Police to dismiss her from her employment on medical grounds as unreasonable and sets out the reasons for this, the majority of which predominantly focus on capacity related issues. In addition, Ms Darlington raises concerns about the harshness of the decision and steps through the implications for herself and her family from a financial perspective. (h) The outcomes sought by Ms Darlington, in resolution of her grievance, include the rescission of the decision by Queensland Police to dismiss her employment. She seeks ongoing employment in her role at the Albany Creek Station, or in other suitable alternative duties until early 2017. Separately, Ms Darlington also requests back pay associated with pay point progressions which she claims she has missed out on. (i) In respect of the first two outcomes sought, Ms Darlington is seeking to have the decision made by Queensland Police to dismiss her for medical incapacity overturned and to be re-instated to a role within the Police Service until early January 2017. (j) These are remedies that may be ordered by the Commission under s 78 of Act on application by Ms Darlington under s 73 of the same Act. [48] Having considered the nature of Ms Darlington’s grievance and proposed remedy, I have concluded I am prevented from granting an injunctive order restraining Queensland Police from implementing the decision to dismiss Ms Darlington for medical incapacity, in circumstances where s 277(11) specifically precludes me from using my discretionary power in respect of a proposed contravention of s 73 of the Act. [49] I note it is open to Ms Darlington to pursue an unfair dismissal application under s 73 of the Act when and if her dismissal takes effect at which time, if she chooses, she will be able to raise her concerns in respect of why her dismissal may have been unreasonable in all the circumstances. Separately, there are also mechanisms under the Act which will allow Ms Darlington to pursue any back pay which may be owing to her. [50] I dismiss the application. [51] Order Accordingly. -- 10 of 10 --