Coop v State of Queensland [2014] QCATA 205

CITATION: Coop v State of Queensland [2014] QCATA 205 PARTIES: Deborah Anne Coop (Appellant) v State of Queensland (Respondent) APPLICATION NUMBER: APL250-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 16 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the learned Senior Member is affirmed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where appellant sought an order pursuant to s 144 of the Anti- Discrimination Act 1991 (Qld) to prevent effect being given to a notice of termination of her employment on ill health grounds or, alternatively, the appellant sought an order reinstating her employment until her complaint was heard – where the learned Senior Member construed that s 144 does not allow the Tribunal to compel the employer to take a mandatory step to withdraw or extend the notice of termination – where the Senior Member concluded that there were no acts as taken by the respondent that could be prohibited under s 144 – whether the learned Senior Member misconstrued s 144 EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – REMEDIES – -- 1 of 26 -- 2 AGAINST EMPLOYER – OTHER REMEDIES – where the appellant sought an interlocutory injunction pursuant to s 144 of the Anti- Discrimination Act 1991 (Qld) – where a prima facie case is established –– whether the inconvenience which the appellant would be likely to suffer if the injunction is refused outweighs the injury which the respondent would suffer if an injunction was granted EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – GROUNDS ILLNESS OR INCAPACITY – where the appellant was terminated on ill health grounds - whether s 144 of the Anti-Discrimination Act 1991 (Qld) gives the Tribunal the power to make an order prohibiting an employer from acting upon an notice of termination of employment – whether there is a continued employment relationship that can be preserved by such an order Anti-Discrimination Act 1991 (Qld), s 144, s 209(1), s 209(4) Public Service Act 2008 (Qld), s 175s 178(1), s 178(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 277, s 293(2), s 329(2), s 340(2), s 341(2) AMIEU v G&K O’Connor Pty Ltd (2000) 100 IR 383 Australian Broadcasting Incorporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 61 Birrell v Australia National Airlines Commission (1984) 5 FCR 447 Bishop v Emora Pty Ltd (1997) 72 IR 419 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 Coop v State of Queensland [2013] QCAT 263 (5 June 2013) Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Hill v C A Parsons Ltd [1972] Ch 305 House v The King (1936) 55 CLR 499 Independent Education Union v Geelong -- 2 of 26 -- 3 Grammar School [2000] FCA 557 (20 April 2000) Irani v South Hampton and South West Hampshire Health Authority [1985] ICR 590 Johns v Gunns Ltd (1995) 60 IR 258 Jones v Queensland Health [2010] QCAT 700 (16 December 2010) Mace v Murray (1955) 92 CLR 370 Norbis v Norbis (1986) 161 CLR 513 Paras v Public Service Body Head of the Department of Infrastructure (2006) 152 IR 75 Reilly v State of Victoria (Unreported, Supreme Court of Victoria, 20 November 1991) State of Queensland v Attrill [2012] QCA 299 (2 November 2012) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). REASONS FOR DECISION [1] This appeal concerns, generally, whether s 144 of the Anti-Discrimination Act 1991 (Qld) (‘ADA’) permits the making of an order prohibiting an employer from treating as valid, or otherwise acting upon, a notice of termination of employment; or treating as valid the termination of employment consequent upon such notice. More particularly, if such an order is permitted by s 144, the appeal concerns whether such an order should have been made by the Queensland Civil and Administrative Tribunal (‘QCAT’) at first instance, or should be made by the Appeals Tribunal on the appeal. Background [2] Ms Deborah Coop was formerly employed by Queensland Corrective Services (‘QCS’). She was a public service employee under the Public Service Act 2008 (Qld) (‘PSA’). [3] By letter dated 19 April 2013 she was given five weeks notice of the termination of her employment. The termination was to be effective from 31 May 2013. [4] The termination of Ms Coop’s employment was pursuant to s 178 of the PSA which permits, in certain circumstances, public service employees to be retired on grounds of ill health. [5] On 23 May 2013 Ms Coop made a complaint to the Anti-Discrimination Commission Queensland (‘ADCQ’). She alleged that QCS had discriminated against her on the grounds of impairment in having done, and failed to do, certain things in the course of her employment. She also -- 3 of 26 -- 4 alleged that the termination of her employment under s 178 of the PSA was itself discriminatory. [6] The Queensland Anti-Discrimination Commissioner accepted her complaint on 27 May 2013. Ms Coop then made application to QCAT for an order pursuant to s 144 of the ADA. [7] By decision of 5 June 2013, a Senior Member of the Tribunal dismissed the application. The legislative context [8] Section 144(1) of the ADA applies to the period before a complaint under that Act is referred to the Tribunal.1 It permits the Tribunal, on the application of a complainant or the Anti-Discrimination Commissioner, to make an order prohibiting a person from doing an act that might prejudice either the investigation or conciliation of the complaint, or an order that the Tribunal might make after a hearing. [9] Section 209(1) of the ADA sets out the relief which may be granted by the Tribunal after a hearing if it decides that a respondent has contravened the Act. That relief includes an order requiring the respondent to do “specified things” to address loss or damage suffered by the complainant because of the contravention.2 [10] By s 209(4)(a) the specified things which the Tribunal may order a respondent to do include requiring the respondent to employ, reinstate or re-employ a person. Ms Coop’s complaint to the Anti-Discrimination Commission Queensland [11] In her complaint, Ms Coop set out her belief as to the acts of discrimination to which she had been subjected.3 They were that QCS had discriminated against her in: a) Failing to consider and/or exhaust all options for reasonable adjustments to her position in accordance with established case law; b) Failing to consider transfer or secondment options for her notwithstanding that those options are available and are consistent with the Government’s policy of maintaining permanent employment for permanent employees; c) Not providing her with the opportunity of another suitable placement taking into account her training, years of service and level of experience with QCS, Department of Community Safety; 1 ADA; Chapter 7, Part 1, Division 4. 2 Section 209(1)(c). 3 Paragraph 26 of the complaint dated 23 May 2013. -- 4 of 26 -- 5 d) Giving her an unreasonably short amount of time to show cause why she should not be retired on mental disability grounds when she had demonstrated that she can work notwithstanding those disabilities; e) Directing her to undergo compulsory psychiatric examination when she had advised management that her mental state had been caused by bullying behaviour within the Department; f) Failing to provide her with sufficient opportunity to obtain legal advice, independent medical reports from her treating psychologist and general practitioner, as well as gather relevant information to be able to adequately show cause why her employment should not be terminated; g) Failing to comply with the PSC4 guidelines on mental or physical incapacity medical examinations; and h) Failing to properly investigate her concerns/complaint regarding bullying in the workplace. [12] She expressed the further belief that the Department of Community Safety proposed to terminate her on mental disability grounds and that such a decision breached the State’s commitment to people with disabilities detailed in the PSA. [13] The remedies which Ms Coop sought were: i) Reinstatement to her substantive position; ii) Further, or alternatively, re-employment to an at level position; iii) Further, or alternatively, immediate placement on the employees requiring placement database; iv) Compensation for hurt and humiliation; v) Costs. Proceedings before QCAT [14] In her application to QCAT Ms Coop sought an order, pursuant to s 144 of the ADA, to prevent effect being given to the notice of termination of her employment on ill health grounds. [15] Alternatively, she sought an order reinstating her to her employment until her complaint was heard. She contended that such an order would prevent her employer from giving effect to an action (the termination of her employment) which may constitute unlawful discrimination. 4 I infer this to be a reference to Public Service Commission Guidelines. -- 5 of 26 -- 6 [16] In written submissions filed in support of the application, a general submission was made that if the order sought was not made, the investigation or conciliation of the complaint, or any order the Tribunal might ultimately make, would be prejudiced.5 [17] The submissions did not elaborate on how the investigation or conciliation of the complaint would (or even might) be prejudiced. [18] As to the prejudice to orders which the Tribunal might make, it was submitted that “permitting dismissal at this stage might prejudice any order that the Tribunal may make after a hearing”.6 Ms Coop submitted that the remedy that restored her to her pre discrimination position was one that gave her the opportunity to resume employment in the public service, and that dismissal at that time would pose practical and legal impediments to the restoration of the position by an order in the nature of reinstatement. The submissions did not elaborate on the legal impediments which it was said would be posed by dismissal.7 [19] It is difficult to identify what such legal impediments might be. Indeed, the remedy of reinstatement is predicated on there having been a dismissal. An injunction that prevented the dismissal from occurring would create a legal impediment to the remedy of reinstatement. [20] It was submitted for Ms Coop that she was a 47 year old who would, in the absence of intervention of the Tribunal, “have on her resumè for the consideration of all future employers that have (sic) 15 years with Corrective Services came to an end because she was dismissed due to ill health.”8 [21] It was said that if she was dismissed she could not honestly give any explanation to dismiss or minimise what had happened to her. That, it was said, raised the prospect of her having to make a decision about disclosing the entire background which resulted in the medical condition which would further diminish her prospects of employment. [22] A further issue was said to be that a graduated return to work had been suggested by her doctor. Ms Coop considered that course prudent given that she, at that time, had not performed her duties for over two years. It was said that the public service was more friendly to such arrangements, and that she was unlikely to find an employer outside the public service who would extend that facility to her.9 [23] The State of Queensland contended that, as notice of termination had already been given to Ms Coop, all the powers of the Chief Executive under Chapter 5, Part 7 of the PSA had been exercised. The decision making was complete. The Chief Executive had no further powers to 5 Applicant’s outline of submissions filed 27 May 2013 at paragraph [33]. 6 Ibid. 7 Ibid at [34]. 8 Ibid at [35]. 9 Ibid at [36]. -- 6 of 26 -- 7 exercise. Thus, it was said, there was nothing that could be the suitable subject of an injunction under s 144 of the ADA.10 [24] Alternatively, the State contended that if there was some conduct which could be the subject of a s 144 injunction, no injunction should issue because it was not doing any act that might prejudice any investigation of the complaint by the Commissioner, or any order that the Tribunal might make. The State identified that Ms Coop had not said how any conduct on its part might cause prejudice in the relevant sense. [25] The State submitted that seeking reinstatement was inconsistent with her own evidence that her substantive position no longer existed, and that she considered (contrary to the medical evidence) that she could not work again for QCS.11 [26] The State contended that what Ms Coop was really seeking was an order restraining the termination of her employment so that the Tribunal may avoid having to make a decision as to whether she should be reinstated or re-employed. This, it said, was an impermissible use of s 144.12 [27] The State further contended that the order sought by Ms Coop placing her on the ERP database could not be made because she did not meet the criteria set out in the binding directive.13 [28] For these reasons, the State contended Ms Coop had not demonstrated a prima facie case.14 [29] The State did concede, however, that if the Tribunal was otherwise satisfied of the matters in s 144, then the balance of convenience favoured Ms Coop because she was not at work and not being paid. [30] Notwithstanding that concession, the State questioned the utility of any order because Ms Coop would remain without any pay and would not be entitled to be placed on the ERP.15 The Tribunal’s decision [31] The learned Senior Member accepted submissions on behalf of Ms Coop that, notwithstanding that her position was still in existence (Ms Coop having believed that it had been abolished) it may be practically difficult for the Tribunal to order re-instatement or re- employment when circumstances will have changed considerably between 10 Respondents outline of submissions dated 29 May 2013 at paragraph 16. 11 Ibid at [25]. 12 Ibid at [26]. 13 Ibid at [27]. 14 Ibid at [30]. 15 Ibid at [31]. -- 7 of 26 -- 8 now and when the outcome of the complaint is ultimately finalised by QCAT.16 [32] Ms Coop had contended that her circumstances were the same as those of the employee applicant in Jones v Queensland Health.17 She contended for the same result. In Jones, the President of QCAT, Alan Wilson J, made an order under s 144 of the ADA prohibiting Queensland Health from further exercising its powers under Chapter 5, Part 7, in particular s 178, of the PSA. [33] Notwithstanding her acceptance of the potential practical difficulties in the Tribunal ordering reinstatement or re-employment in considerably changed circumstances, the learned Senior Member concluded that the Tribunal “cannot make an order compelling the employer to take what would be a mandatory step to withdraw or extend the notice of termination”. The learned Senior Member reached this conclusion because notice of termination had been given and no further act was required on the part of QCS to bring about the end to Ms Coop’s employment.18 [34] This conclusion was based on the Senior Member’s construction of s 144; that it limited the Tribunal’s power to making an order prohibiting a person from doing an act, and did not permit an order requiring a person to do an act.19 [35] The learned Senior Member rejected the argument put for Ms Coop that s 144 would permit an order prohibiting any act that had the effect of treating the decision to dismiss, notified in the notice of termination, as having any force or effect. She considered that such an order would be a “mere artifice” in circumstances in which no such act is required and the notice of termination takes effect by the effluxion of time and by force of law.20 [36] In reaching that conclusion, the Senior Member distinguished Ms Coop’s situation from that considered in Jones. In this case the employer had already given Ms Coop notice of the termination of her employment under s 178 of the PSA. That step had not occurred in Jones. The appeal [37] Ms Coop contends that the learned Senior Member erred in law in finding that s 144 of the ADA prevented the Tribunal from making an order that the State be prohibited from treating the notice of termination as having any force or effect. [38] She seeks orders from the Appeals Tribunal exercising the powers conferred by s 144 ADA. Particularly, she seeks an order that, until 16 Coop v State of Queensland [2013] QCAT 263 (5 June 2013) at [11]. 17 [2010] QCAT 700 (16 December 2010) (‘Jones’). 18 Supra at [17]. 19 Supra at [16]. 20 Supra at [17]. -- 8 of 26 -- 9 further order or until her discrimination complaint has been investigated and conciliated by the Anti Discrimination Commission of Queensland and has been heard and determined by the Tribunal, the State be prohibited from: (a) treating the notice of termination of employment given on 19 April 2013 as of any force or effect; (b) treating as valid or acting upon the notice of termination; (c) exercising its powers under Chapter 5, Part 7 of the PSA, in particular, s 178. [39] The decision of the learned Senior Member was an exercise of the discretion conferred by s 144 ADA. An appeal against the exercise of a discretion is governed by the well known principles set out in House v The King.21 [40] It is not sufficient that the Appeals Tribunal would have taken a different course to that taken by the Senior Member. Ms Coop must demonstrate that some error was made in exercising the discretion. [41] Ms Coop seeks to adduce further evidence on the appeal; an affidavit of Lyle Beaton sworn 5 July 2013. The State opposes that evidence being adduced, this being an appeal on a question of law alone. If the evidence is allowed, then the State seeks to adduce further evidence also; an affidavit of Rachel Cornes. [42] The affidavit of Mr Beaton was purportedly filed pursuant to directions issued by the Appeals Tribunal on 20 June 2013.22 Those directions did not permit or contemplate the filing of further evidence. The directions were limited to filing submissions in support of the appeal (and application for leave to appeal if leave had been required). [43] Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) does not permit the adducing of further evidence before the Appeals Tribunal in an appeal on a question of law alone. If additional evidence is to be adduced, this can only be before the Tribunal to which the matter is returned for reconsideration.23 [44] The State, in its written submissions,24 contends that not only has Ms Coop not demonstrated error, but she has not even attempted to identify an error of the relevant kind. Rather, the State contends that Ms Coop is simply impermissibly seeking to run her case again. 21 (1936) 55 CLR 499 at 504-505. 22 Email from Susan Moriarty and Associates of 5 July 2013 under cover the appellants submissions and the affidavit of Mr Beaton were filed. 23 QCAT Act, s 146(c). 24 Submissions on behalf of the respondent filed 19 July 2013 at paragraph 4. -- 9 of 26 -- 10 [45] The contention that Ms Coop has not even attempted to identify error of the relevant kind must be rejected. [46] The error of law raised by Ms Coop in her appeal grounds, viz the finding that s 144 ADA prevented the Tribunal from making the order sought, is, if established, clearly an error of the kind identified in House v The King. [47] Care must be taken not to characterise unfairly an appeal as a hollow attempt to rerun an unsuccessful case. Such characterisation distracts attention from the relevant issues of whether the appeal is one permitted by the statute which confers the appeal right, and whether it raises grounds which, if established, could found relief by the appellate body. [48] Where, as it is here, an issue at both first instance and on appeal is the proper construction of the statutory power, it is to be expected that on the appeal the unsuccessful party will “rerun” the case advanced below. Provided that the case rehearsed on appeal is directed to a relevant ground in an appeal permitted by the statute, it is not to be criticised or dismissed merely because it advances arguments rejected below. [49] In the submissions filed on Ms Coop’s behalf the relief sought on the appeal is expressed in slightly different terms than in the appeal application. It seeks that the State be restrained from: (i) treating as valid a purported notice of termination of employment dated 19 April 2013; (ii) otherwise acting upon the notice of termination; (iii) treating as valid a purported termination of employment of Ms Coop on 31 May 2013; (iv) exercising its powers under Chapter 5, Part 7 of the PSA, in particular, s 178. [50] In those submissions it is contended that there were acts required to give effect to the notice of termination which could have been the subject of orders under s 144. [51] The Senior Member’s finding that no further act was required of the employer to bring about the termination of employment which would occur by the effluxion of time, notice having already been given, was based upon her acceptance of the decision of the Federal Court of Australia of Birrell v Australia National Airlines Commission.25 The appellant submits that Birrell does not establish that the effect of the notice is that there are no further positive acts required to give effect to the notice of termination. Rather, she contends that Birrell is authority for the proposition that giving notice under a contract of employment is a unilateral right with the consequence that, once given, it cannot be withdrawn. The effect of the notice of termination is that the contract is terminated at the end of the 25 (1984) 5 FCR 447 (‘Birrell’). -- 10 of 26 -- 11 period of notice. She further contends that, because the purpose of the notice is to allow parties a period to prepare for the adjustments required after the termination takes effect, to bring the existing relationship to an end in an orderly fashion and to put in place alternative arrangements, there are a number of acts that may or must be done towards that end of giving effect to the notice. [52] The approach of the learned Senior Member, she submits, “elides a question of the legal effect of notice to terminate with the legal nature of the relationship of the parties in the notice period”. [53] As particular acts required to give effect to the notice, the submissions on behalf of Ms Coop identify the employer seeking to engage a replacement employee; or the possible declaring of the position as surplus to requirements; or reorganising the duties of the position. It is said that payroll arrangements will have to be put in place to calculate accrued entitlements on termination and to make up termination pays. Access to information technology systems will be cut off. The acts which had been identified in the proceeding before the Senior Member were the removal of the employee’s name from the payroll, and her property from the employer’s premises. [54] Beyond these particular acts, it is submitted for Ms Coop that there will be “a range of other administrative steps needed to perfect the departure of the employee required by the notice”. [55] Ms Coop’s submissions identify the distinction between the employment contract and the employment relationship, each of which continues throughout the period of notice. It is submitted that “within the scope of the continuing contract and relationship the employer takes the steps to give effect to the notice in the notice period”. Because the relationship and the contract continued for the purpose of facilitating an orderly end to the employment, this meant that there were acts done which could be prohibited. [56] A number of authorities are cited for Ms Coop which, it is said, recognise that Courts may grant injunctive relief to restrain an employer from treating as valid, or acting upon, a notice of termination. [57] The State in its submissions urges caution when considering those authorities because they arose in other jurisdictions and in statutory contexts different to s 144 of the ADA. Particularly, the State submits that the power under s 144 is more limited than a general injunctive power. [58] More generally, the State submits that the learned Senior Member was correct to conclude that an order could not be made under s 144 of the ADA compelling the taking of a mandatory step to either withdraw or extend the notice of termination. It submits that the Tribunal lacked, and the Appeals Tribunal lacks, jurisdiction to make an order under s 144 because it was (and is) not engaged in any act that could be the subject of -- 11 of 26 -- 12 such an order, it having already taken all necessary steps under the PSA to bring about the termination of Ms Coop’s employment. Consideration [59] In Jones the President, Alan Wilson J, observed that s 144 ADA is a self contained provision which raised only one question material to an application under it: whether there is, or is not, a material risk of prejudice of a kind which might affect the investigation or conciliation of the complaint, or a remedy which the Tribunal might make after a hearing.26 [60] However, as His Honour’s reasons made clear, the relevant material risk of prejudice must emanate from the act to be prohibited or restrained. Thus, in Jones, His Honour observed that: The only real question is, then, whether or not the material establishes that the ‘ill health retirement’ of Ms Jones might prejudice the investigation or conciliation of her complaint, or an order that QCAT might make after a hearing.27 [61] As I have already observed, in that case, the termination of Ms Jones employment pursuant to s 178 of the PSA remained in prospect. The acts permitted by s 178 had not been performed. In terms, s 178 of the PSA permits three acts which may be carried out by the Chief Executive of the Department28 if reasonably satisfied that an employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability. Those acts are transferring, redeploying or retiring the employee. The act of retiring the employee under s 178(1)(b) may only be carried out if transfer or redeployment under s 178(1)(a) are not reasonably practicable.29 [62] An order pursuant to s 144 ADA may, in an appropriate case, be directed against the taking of any of the three actions permitted under s 178. But in any case the order must be directed toward prohibiting the act or acts which, if unrestrained, might cause the relevant prejudice. The prejudice must be to either the investigation or conciliation of the complaint by the Anti-Discrimination Commissioner, or to an order which the Tribunal might ultimately make. [63] Jones was a case in which the act which was sought to be restrained, viz the retirement of the employee under s 178(1)(b), was identified as potentially prejudicing the investigation or conciliation of the complaint. Ms Jones had sworn that she would suffer measurable prejudice through financial hardship if her employment was terminated. That financial 26 [2010] QCAT 700 at [12]. 27 Ibid at [13]. 28 PSA, s 10. 29 Those three particular acts authorised by s 178(1) do not limit the action that may be taken in relation to an employee who has been required to submit to a medical examination pursuant to s 175: s 178(2). -- 12 of 26 -- 13 hardship would prejudice the conciliation of her complaint, and proceedings in the Tribunal.30 [64] Unlike in Jones, in this case Ms Coop identifies no particular prejudice which might be caused to the investigation or conciliation of her complaint. She identifies that she has very restricted ability to fund representation in the ADCQ (and, one infers, in the Tribunal).31 However, insofar as that lack of financial capacity may prejudice the investigation or conciliation of her complaint, it was a prejudice which existed as a consequence of her not having received income from QCS, or income support payments through QSuper, for a long time. The latter payments stopped a year prior to her application.32 The termination of her employment would not cause the prejudice. An order prohibiting the employer from giving effect to, or treating as valid, the termination of her employment would not prevent the prejudice. Indeed, even an order prohibiting the termination of her employment would not prevent that prejudice in this case. [65] In other cases it may be appropriate for the Tribunal to exercise power under s 144 to prohibit the taking of action under s 178(1)(b) of the PSA to retire an employee so as to avoid the potential prejudice to an order which the Tribunal may make directed towards the actions of transfer of redeployment which may be taken under s 178(1)(a). The transfer or redeployment of the employee would be “specified things” which the Tribunal could require the employer to do by order under s 209(1)(e) of the ADA. Retiring the employee under s 178(1)(b) may prejudice those orders. The retirement would sever the employment relationship within which the transfer or redeployment could otherwise take place, or at least be considered. [66] Restraining the termination of the employment would preserve the employment relationship and thus avoid the potential prejudice which retirement may cause to those orders of transfer or redeployment. [67] Ms Coop’s complaint to the ADCQ included that QCS had failed to consider transfer or secondment options, and had not provided her with another suitable placement. Those are matters which fall within s 178(1)(a). The Tribunal might make orders after a hearing requiring those things be done, or at least be considered.33 If the Tribunal was satisfied that there were acts which might prejudice orders which it might ultimately make in respect of those matters, then it could properly grant an order under s 144 prohibiting those acts. [68] Ms Coop also alleged in her complaint that QCS failed to consider and/or exhaust all options for reasonable adjustments. If, after a hearing, the Tribunal found that there were reasonable adjustments which QCS could make, or could at least consider, those too are specified things which it 30 [2010] QCAT 700 at [15]. 31 Affidavit of Deborah Anne Coop filed 28 May 2013. 32 Affidavit of Deborah Anne Coop at paragraph 4. 33 State of Queensland v Attrill [2012] QCA 299 (2 November 2012) at [39]. -- 13 of 26 -- 14 could require QCS to do. Again, if the Tribunal was satisfied that there were acts which might prejudice the making of such orders, then an order under s 144 of the ADA prohibiting those acts would be appropriate. [69] The case conducted before the learned Senior Member did not, however, identify those matters of complaint, viz transfer, redeployment or the making of reasonable adjustments, as being orders which the Tribunal might make after a hearing but which might be prejudiced if certain acts were not enjoined. Rather, the submissions before the learned Senior Member focussed upon the prejudice which might be occasioned to the remedy of reinstatement.34 Those submissions also raised issues of prejudice which Ms Coop may suffer in obtaining employment outside of the public service if an order restoring her employment was not made. It was said that the fact of her having been retired due to ill health, and her explanation for that, would diminish her prospects of outside employment. So too, it was said, would her need for a graduated return to work. [70] In light of those submissions, it was understandable why the learned Senior Member’s decision focussed upon whether the potential remedy of reinstatement might be prejudiced. [71] Likewise, on the appeal, Ms Coop does not raise potential prejudice to orders concerning transfer, redeployment or the making of reasonable adjustments. The only potential prejudice to which the submissions on her behalf refer is that which was accepted by the Senior Member.35 That potential prejudice was to an order of reinstatement. [72] When one considers an order requiring reinstatement, one can readily conceive of acts which might, if not prohibited, prejudice such relief being granted. One example would be the appointment of a replacement employee to the position formerly occupied by the appellant. In an appropriate case, such an act may be prohibited by an order under s 144 of the ADA. [73] It has been observed, in the context of considering whether reinstatement of unfairly or unlawfully dismissed employees is impracticable or inappropriate, that the effect of a reinstatement order on a third party, whilst not a conclusive consideration, ought cause a Court to hesitate before making an order that forces the dismissal of that third person.36 [74] An order under s 144 of the ADA might be made prohibiting the filling of the position to avoid that prejudice. This is so whether the employment was being terminated pursuant to s 178 of the PSA or by any other means. [75] The particular circumstances of each case would need to be considered. In Bishop, the position was specialised and the employer had appointed 34 Applicants outline of submissions, 27 May 2013, at paragraph [34]. 35 Appellants written submissions filed 5 July 2013 at paragraph [31]. 36 Bishop v Emora Pty Ltd (1997) 72 IR 419 (‘Bishop’). -- 14 of 26 -- 15 the new employee prior to having knowledge of the application for reinstatement by the former employee. These are relevant considerations which would go to the balance of convenience. Other considerations would include the size of the employer and the period during which it would be unable to fill a position. The latter may be of particular importance given that an order is made under s 144 before the matter is referred to the Tribunal. The processes within the ADCQ and the Tribunal may take considerable time. [76] The Senior Member construed s 144 as limiting those acts which might be prohibited to those necessary to give effect to the termination of employment. Where no such act was required to give effect to the termination, in the sense of bringing about the termination, not in the sense of some administrative act consequent upon the notice of termination, the Senior Member concluded that there was nothing which could be prohibited under s 144. [77] In construing s 144 in this limited way, the learned Senior Member fell into error. This error caused the Tribunal’s exercise of the discretion conferred by s 144 to miscarry.37 Having found error what should the Tribunal do? [78] On an appeal on a question of law, as this is, once the original decision has been found to be affected by appellable error, the Appeals Tribunal has wide powers. It may confirm or amend the decision, set it aside and substitute its own, or set it aside and return it to the Tribunal for reconsideration.38 [79] In my opinion, Ms Coop’s application for orders under s 144 of the ADA can be determined on the appeal without need to return the matter to the Tribunal for reconsideration. Should there be an order under s 144 of the ADA? [80] In Jones, Alan Wilson J confirmed the applicability of the principles relevant to interlocutory injunctions to applications under s 144 of the ADA. His Honour observed that this had also been the approach of the Queensland Anti-Discrimination Tribunal.39 Those principles require, first, the appellant to establish that there is a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial.40 37 House v The King (1936) 55 CLR 499 at 504-505; Mace v Murray (1955) 92 CLR 370; Norbis v Norbis (1986) 161 CLR 513 at 518-519; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [21] per Gleeson CJ, Gaudron and Hayne JJ, and at [72] and [75] per Kirby J. 38 QCAT Act, s 146. 39 Supra at [7]. 40 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 – 623; Australian Broadcasting Incorporation v O’Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J and [67] per Gummow and Hayne JJ. -- 15 of 26 -- 16 [81] Secondly, it must be determined whether the inconvenience or injury which the appellant would be likely to suffer if an injunction is refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction were granted.41 [82] The evidence filed in support of the application, in my view, does little to establish a prima facie case. Part of Ms Coop’s complaint relates to her having been required, pursuant to s 175 of the PSA, to undergo a medical examination. Requiring an employee to undergo such an examination cannot constitute unlawful discrimination in contravention of the ADA. Insofar as s 175 of the PSA is concerned, Part 7 of the PSA must be taken to have impliedly repealed or excluded the operation of the ADA.42 [83] The facts outlined in Ms Coop’s complaint to the ADCQ do raise that a report by Dr Chung in March 2012, provided after the examination directed under s 175 of the PSA, stated that she could work in other areas within the Department of Community Safety, and that she should be informed of other options in other divisions which may be suitable for her. Subsequent to receiving that report, the Executive Director advised Ms Coop that he would consider the report and determine the way forward. Later, he informed Ms Coop that he was considering placing her on the ERP database, and invited submissions from her as to why that should not occur. Ms Coop made submissions, but was later placed on the MERP database. [84] About four months after being informed that she was being placed on the MERP database, Ms Coop was informed by the Executive Director that as she had not obtained a position within the MERP database he was considering retiring her under s 178. After receiving submissions by Ms Coop, the Executive Director confirmed that she would remain on the MERP database for a further three months. Following that period Ms Coop was again advised that ill health retirement under s 178 was being considered. Having again made submissions she was given notice of her ill health retirement on 19 April 2013, with effect from 31 May 2013. [85] Those matters, if proven, may establish the complaint of discrimination in failing to consider or exhaust options to make reasonable adjustments, or transfer or redeployment opportunities. Ms Coop does not, however, address those issues in her affidavit in support of her application. The complaint, though, is in evidence. Therefore, I am content to proceed on the basis that Ms Coop has made out a prima facie case. [86] Determining the balance of convenience in any case requires consideration to be given to the injury or inconvenience which is likely to be suffered by the appellant if the injunction is not granted, and for that to be weighed against the injury or inconvenience which is likely to be suffered by the respondent if it is. That requires, as a first step, the 41 Beecham at 622-623. 42 State of Queensland v Attrill [2012] QCA 299 (2 November 2012) at [36]. -- 16 of 26 -- 17 identification of the injury or inconvenience to the appellant, and an understanding of the nature and content of the injunction. [87] In the context of an application under s 144 of the ADA the injury or inconvenience which is likely to be suffered is defined by the section itself. It is prejudice to the investigation or conciliation of the complaint in the ADCQ, or to the orders which might be made by the Tribunal after a hearing. In considering any application under s 144 in which the prejudice alleged is to orders which the Tribunal might ultimately make, it will be necessary to identify with some precision what orders are said to be potentially prejudiced, and in what way. [88] The nature and content of the injunction also has a statutory context in an application under s 144. The nature of the order is that it must be, in all cases, prohibitory not mandatory. The content of the order in any particular case is that it will restrain the act or acts which have been identified as those which, if unrestrained, would cause potential prejudice to the orders which the Tribunal may otherwise make after a hearing. [89] In my view, this case demonstrates the need for precision in respect of these matters. The prohibition of the particular act or acts identified as those which might prejudice an order the Tribunal may make is all that is authorised under s 144. [90] When the order of the Tribunal which might be prejudiced is that of reinstatement or re-employment under s 209(1)(c) of the ADA, it must be established that the act or acts sought to be restrained might prejudice reinstatement or re-employment. The particular acts require identification. It is a principle applicable to all injunctions that the “injunction ought to make it clear what it is the defendant is required to do or not to do”.43 [91] The Tribunal’s power to order reinstatement or re-employment only arises in circumstances in which a former employment relationship has been terminated. If there has been no termination or severance of the employment relationship, there can be no occasion for the Tribunal to order reinstatement or re-employment. There is nothing to be reinstated. Not only is that consistent with the remedy of reinstatement or re- employment in other areas of the law, it is the only way that reinstatement or re-employment can be understood in the context of s 209(1)(c). The orders permitted to be made under that provision are those requiring the respondent to do specified things (reinstate or re-employ the complainant) “to address loss or damage suffered by the complainant … because of the contravention”. [92] The loss or damage suffered which may be addressed by reinstatement or re-employment is the loss of employment because of the employer’s unlawful discrimination. 43 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 348. See also Spry, the principles of Ecuador Remedies, 7th edition, 2007 at page 374. -- 17 of 26 -- 18 [93] It is not necessary that the termination of employment itself be a contravention of the ADA. In many cases it may be – but in other cases the employment may come to an end as the consequence of other unlawful discrimination during the employment relationship. For example, an employee may lose his or her job because the position may be made redundant. The redundancy, of itself, may be entirely genuine and not discriminatory. However, the fact that the complainant occupied that position at the time at which it was made redundant may be because of some earlier discriminatory act, such as the denial, for discriminatory reasons, of promotion or transfer to another position. The loss of employment could still be seen to be because of the contravention. In such circumstances, it may be appropriate for the Tribunal to order that the complainant be re-employed in some other position with the respondent. [94] Nonetheless, in order for there to be an order for reinstatement or re- employment, there must have been a termination. [95] An act which will bring about the termination of employment is not one which will prejudice the remedy of reinstatement or re-employment. Indeed, such an act would facilitate the availability of such a remedy. [96] Therefore, an order cannot be made under s 144 prohibiting an act which will terminate the employment on the basis that an order of reinstatement or re-employment might be prejudiced. [97] As identified earlier, an order may appropriately be made under s 144 prohibiting an act which will terminate the employment if it is established that some other order which the Tribunal might make under s 209 might be prejudiced. The example has already been given of an order under s 144 being made prohibiting termination of the employment so as to avoid potential prejudice to orders of transfer or redeployment being made. Attrill was such a case. [98] In Jones, the President, Wilson J, at [16] said: More forcefully, it is argued for her that the termination of her employment could also have the effect of reducing the benefit of, or making otiose, the orders the Tribunal might ultimately make in her favour including, in particular, orders reinstating her. That must be a material, and compelling, consideration: the philosophy behind the ADT is one of righting discriminatory conduct, and providing justice to the victims of it. It is too early, of course, to say that the applicant will necessarily succeed but it cannot be argued that her case is without substance, and to take the risk of denying her an important remedy permitted under the legislation would be a very serious thing – something which, on its face, s 144 is designed to prevent. [99] However, it does not appear from the reasons that the applicant had elaborated upon, or demonstrated, how a reinstatement order might be prejudiced in circumstances when the order sought under s 144 would prohibit the termination of her employment from actually occurring. With -- 18 of 26 -- 19 the greatest of respect to his Honour, he did not identify in his reasons how the act of terminating employment risks the denial of the remedy of reinstatement. Nor was it explained how an order for reinstatement might be made in circumstances where, because of an order under s 144 or otherwise, there had never been a termination of the employment. [100] As I have already observed this is not a case in which prejudice to any such orders, such as requiring transfer, redeployment or making reasonable adjustments, was identified in the proceedings below, or on the appeal. The only prejudice referred to by the learned Senior Member was to the remedy of reinstatement.44 That is the only prejudice identified by Ms Coop on the appeal.45 [101] It is in this context that the orders sought by Ms Coop restraining the State from “treating as valid a purported notice of termination” or “treating as valid a purported termination” or “otherwise acting upon the notice of termination”46 must be considered. [102] It is not clear from the way in which those proposed orders are expressed, nor from the submissions made on behalf of Ms Coop, whether what is sought to be restrained, on the one hand, are acts which themselves would bring about the termination or, on the other hand, are acts which are merely related to, but which do not actually bring about, the termination. In the submissions, reference is made, varyingly, to orders:  Restraining the State from “acting on a notice of termination”;47  Which prohibit acts associated with the notice of termination of employment;48  Prohibiting “acts required to give effect to the notice”;49  Prohibiting “acts done towards that end, the end being giving effect to the notice”;50  Prohibiting “a range of other administrative steps… needed to perfect the departure of the employee required by the notice”;51  Prohibiting acts done during “the continuance of the relationship and the contract for the purpose of facilitating an orderly end to the employment”;52 44 Coop v State of Queensland at [11]. 45 Appellants written submissions, [31]. 46 Ibid at paragraph [33]. 47 Ibid at [3]. 48 Ibid at [4]. 49 Ibid at [6]. 50 Ibid at [9]. 51 Ibid at [10]. 52 Ibid at [13]. -- 19 of 26 -- 20  Restraining the “employer from treating as valid or acting upon a notice of termination”.53 [103] As already noted, Ms Coop’s submissions contained some, limited examples of particular acts. Each of those should be considered. [104] The first identified act was the engagement of substitute employees. Prohibiting this act would not have any bearing upon whether or not Ms Coop’s employment was terminated. The employment would still terminate in accordance with the terms of the notice given. Thus it can be seen that this is not an act giving effect to the termination in the sense that if it was restrained it would prevent the termination from occurring. [105] I have addressed above why this act might legitimately be, in an appropriate case, the subject of an order under s 144 of the ADA. However, whilst the engagement of a third party in the position formerly held by the appellant may, in some circumstances, give pause for thought as to whether reinstatement should be ordered,54 it has also been said that “the mere fact that a position vacated as the result of the termination of an employee has been filled by the engagement of a new employee cannot make the reinstatement impracticable”.55 [106] In this particular case, where Ms Coop had not occupied her substantive role, or indeed any role, for some 16 months prior to her termination, I would not consider that the act of the State engaging a replacement employee might prejudice the remedy of reinstatement which the Tribunal might order. This is particularly so when the employer is, on even the narrowest of views, a Department of the public service and, on a broader view, the State, which could absorb the replacement employee within the whole of the public service. [107] The second particular act identified was declaring the position surplus to requirements. Like the employment of a replacement employee this is not an act which, if restrained, would prevent the termination of Ms Coop’s employment occurring. Again, such an act might, however, be restrained by an order under s 144 in an appropriate case. Declaring the position surplus to requirements would have the effect of abolishing the position within the employer’s establishment. If the position is abolished, then the remedy of reinstatement is prejudiced. The employee cannot be returned to his or her former position. Whilst it may be that in a large employer, such as the public service, re-employment would remain available, reinstatement is a separate and distinct order permitted under s 209(1)(c). Because that remedy would be prejudiced, the order might be made if the balance of convenience favoured making it. [108] The third particular example was the putting in place of payroll arrangements for the calculation and the making up of termination pay and 53 Ibid at [15]. 54 Bishop v Emor Pty Ltd – Supra. 55 Johns v Gunns Ltd (1995) 60 IR 258 at 271. -- 20 of 26 -- 21 accrued entitlements. These are acts purely consequential upon the termination. They are not acts which if performed would in any way prejudice the remedy of reinstatement or re-employment. [109] If restrained they would not have any bearing on whether the termination actually came about. When the termination came about the employee would have an entitlement at law to the payment of accrued entitlements and termination pay. To restrain such acts would be to deny the employee his or her legal entitlements in circumstances in which his or her employment nonetheless remained terminated. I am unable to envisage circumstances in which such an order would be made under s 144 of the ADA. [110] It does serve to highlight, though, the potential difficulties in making an ill defined order under s 144 such as restraining the employer from “acting upon” or “giving effect to” a notice of termination. Whilst such an order may not prevent the termination from occurring, it may, on one hand, legitimately and appropriately restrain the employer from declaring the position surplus to requirement. On the other hand, it may illegitimately and inappropriately prohibit the employer from paying to the terminated employee his or her lawful entitlements. [111] The fourth particular example was the removal of access to the information technology system. Again, of itself, the removal of such access will not have any effect upon whether or not the termination takes place. If unrestrained it would not in any way prejudice the potential reinstatement or re-employment of the former employee. Access, one assumes, could be as readily re-established as it was removed. This would be an ordinary corollary to reinstatement or re-employment. [112] Certainly, one of the orders sought on the appeal was directed at stopping the termination of Ms Coop’s employment. That proposed order sought to restrain the state from exercising its powers under Chapter 5, Part 7 of the PSA, in particular, s 178. Whilst I consider that the learned Senior Member’s approach to what might be prohibited by orders under s 144 of the ADA was too narrow, I consider her conclusion that the State had exercised all its powers under Chapter 5, Part 7 of the PSA, in particular s 178, to be entirely correct. This was precisely the basis upon which the learned Senior Member, correctly in my opinion, distinguished this case from Jones. If there were any further acts which might be restrained, they did not arise under those statutory provisions. [113] So it can be seen that none of the specific examples provided identify acts which, if restrained, would have the effect that the termination itself would not occur. From the submissions it seems, however, that the intention of the orders, more broadly expressed than those particular examples, is that they would have the effect that the termination itself was prevented and that the employment relationship would be preserved. [114] The submissions on behalf of Ms Coop referred to a number of authorities in which Courts had granted injunctive relief from treating as valid, or -- 21 of 26 -- 22 acting upon, a notice of termination. There are a number of points which should be made about those authorities. [115] First, none of them were decided in the context of s 144 of the ADA. None of them had as a central consideration the requirement to identify acts which, if unrestrained, might prejudice a particular remedy. [116] Secondly, they acknowledge that in the context of general employment law with which they were concerned, such orders will only be made in exceptional circumstances. Thus Lord Denning MR in Hill v C A Parsons Ltd56 observed that whilst, in the ordinary course of things, an invalid notice of termination would bring the employment relationship to an end on the named day (the employment contract continuing because it had not been validly terminated in accordance with its terms) that rule was not inflexible and permitted of exceptions. In a proper exceptional case the Court would grant a declaration that the relationship still subsisted and an order restraining the employer from treating it at an end. [117] In Reilly v State of Victoria,57 Smith J observed that Hill and Irani v South Hampton and South West Hampshire Health Authority,58 both cases upon which the appellant here relies, were “among a few cases where Courts have been prepared to grant relief having the effect directly or indirectly of granting specific performance of employment contracts”. [118] In Paras v Public Service Body Head of the Department of Infrastructure,59 Young J observed, at [38]: While Courts are generally reluctant to grant an injunction to continue an employment relationship where it has been terminated, in a number of cases the Court’s have, in view of the special circumstances of those cases, granted an interim injunction to restrain an employer from treating a notice of termination as having terminated an employment relationship. [119] Thirdly, the special or exceptional circumstances in those cases concerned preservation of the employment relationship to allow certain rights which were dependant upon the continued existence of the employment relationship to be exercised. [120] In Hill, where the invalidity in the notice of termination was that it was too short, the exceptional circumstances were that if the employment relationship was preserved, the employee would obtain the benefit of legislative protections which would come into force in the interim. [121] In Irani, Reilly and Paras, each of the employees concerned was seeking to avail themselves of statutory or contractual rights of procedure or review which had not been observed or applied prior to their dismissals, 56 [1972] Ch 305 at 314 (‘Hill’). 57 (Unreported, Supreme Court of Victoria, 20 November 1991) (‘Reilly’). 58 [1985] ICR 590 at 22 (‘Irani’). 59 (2006) 152 IR 75 (‘Paras’). -- 22 of 26 -- 23 and of which they could only avail themselves if the employment relationship was preserved or re-established by injunction. [122] As I have already observed, when the order sought is directed towards preservation of the employment relationship so that orders requiring specified things to be done in an extant relationship are not prejudiced, this would be an appropriate use of s 144. Cases such as Hill, Irani and Reilly fit comfortably within that context. [123] However, as also already observed, notwithstanding Ms Coop’s identification of the State’s failings in respect of reasonable adjustments, transfer and redeployment as acts of discrimination, the case for orders under s 144 was not run on the basis that remedies directed towards those issues might be prejudiced. The only remedy said to be prejudiced was reinstatement. [124] In my opinion, there is a further reason why careful consideration should be given to orders of the kind sought by Ms Coop in broad, imprecise terms lest mandatory injunctions which are impermissible under s 144, be disguised as permissible prohibitory injunctions. [125] In Independent Education Union v Geelong Grammar School,60 Finklestein J granted an interim injunction which was expressed to restrain the employer “from acting upon the notice dated 6 April 2000 terminating the employment of the … applicant.” It was clear on the facts that the notice had been effective to terminate the employment on 7 April 2000. For that reason, Gray J later observed of that order made by Finklestein J: Despite the form of the order, it is clear from His Honour’s reasons for judgment that the teacher’s employment had been brought to an end. His Honour saw the issue in terms of reinstatement on a temporary basis.61 [126] In AMIEU v G&K O’Connor, also a case in which it was clear that the employee had been terminated, Gray J granted an interim injunction requiring the employer to “employ” the employee until further order. [127] It is, in my view, clear that if application was made to the Tribunal the day following the day upon which an employee’s employment had been terminated the Tribunal would not be permitted under s 144 to make an order requiring the employer to reinstate the employee pending the investigation and conciliation of the complaint in the commission, or its hearing in the Tribunal. The Tribunal could not so order even if it considered, as the Senior Member did, that the passage of time may prejudice the potential order for reinstatement which the Tribunal might make after a hearing. Section 144 would not permit such an order because it would not be an order prohibiting an act which if unrestrained might prejudice the remedy. It would be an order requiring the 60 [2000] FCA 557 (20 April 2000). 61 AMIEU v G&K O’Connor Pty Ltd (2000) 100 IR 383 at [54]. -- 23 of 26 -- 24 performance of an act in the interim so as not to prejudice a potential final remedy of reinstatement. [128] It would be entirely impermissible in my opinion to couch such an order in the language of prohibition so as to make the order amendable to s 144. To recast the order requiring the employer “to reinstate” as one prohibiting the employer “from acting upon or giving effect to” the termination, would be to allow form to triumph over substance. [129] Therefore, the Tribunal would also be careful in circumstances such as these, where there was no further act necessary to bring about the termination, to make an order before the termination took effect, the effect of which order would be to preserve the employment relationship so as to not prejudice the remedy of reinstatement. [130] For reasons already explained, reinstatement cannot be prejudiced before it arises as a prospective remedy. It can only arise as a prospective remedy if there is a termination. [131] Ms Coop submitted that acceptance of the argument advanced by the State that there was nothing to which to direct an order under s 144 when there was no further act required to bring about the termination, notice having been given, would lead to unjust, unintended and absurd results in other areas under the ADA where relationships are governed by contracts. [132] To illustrate this submission, the example was used of a notice to quit premises being given on discriminatory grounds to a family by a landlord. It was said that the effect of the notice to quit “is that the old tenancy is gone once the notice expires and it cannot be saved unless a new one is created”.62 It was submitted that, on the State’s analysis, s 144 of the ADA “is not available to this family in aid of prevention of a discriminatory eviction because the notice to quit does not require any further action by the landlord prior to its expiration”. It was contended that there is no distinction in logic between the legal position following a notice to quit and that following a notice of termination of employment.63 [133] Those submissions cannot be accepted. They are based upon an incorrect legal premise. [134] Contrary to those submissions, under Queensland law, a residential tenancy does not end at the expiration of a notice to leave the premises. A residential tenancy agreement ends only in a way mentioned in s 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTA’).64 [135] Where notice to leave the premises has been given, the tenancy agreement only ends if the tenant hands over vacant possession of the 62 Counsel cited Arnold v Mann (1975) 99 CLR 462 at 474 in support of this contention. 63 Appellant’s written submissions, paragraphs [19] – [20]. 64 RTA, s 277(1). -- 24 of 26 -- 25 premises on or after the handover day.65 The handover day is defined as being, if the notice is given without grounds for a periodic agreement, two months after the notice was given or, for a fixed term, the later of two months after the notice is given or the day the term of the agreement ends.66 [136] If possession of the premises is not handed over to the lessor, the tenancy agreement will only end if a Tribunal makes an order terminating the agreement.67 [137] An application to the Tribunal for a termination order because the tenant failed to hand over vacant possession of the premises must be made within two weeks after the handover day.68 The Tribunal may make a termination order only if satisfied it is appropriate to do so.69 [138] Therefore, in the circumstances suggested by the appellant, it would not be the case that the landlord would not be required to take further action prior to the termination of the tenancy. In an appropriate case, the Tribunal might make an order under s 144 of the ADA prohibiting the landlord from making an application for a termination order if it considered that, if unrestrained, the application for termination might prejudice the investigation or conciliation of the complaint or an order which the Tribunal might ultimately make. [139] Whilst it should not be determined in these proceedings whether the Tribunal could, after a hearing, order that the landlord enter into a new tenancy agreement with a former tenant under s 209(1)(c) of the ADA, it is to be observed that, unlike reinstatement or re-employment, the ADA does not expressly provide that an order of that kind can be made. However, as with termination of employment, if the application to terminate the tenancy agreement was restrained under s 144 it would have the consequence that the agreement would not terminate. In the absence of termination, there could be no order in the nature of the reestablishment of the former tenancy agreement, or the establishment of a new tenancy agreement. [140] The act to be restrained, the application for a termination order, would not prejudice the possibility of the remedy of an order for reestablishment of the tenancy. The act of applying for termination (or the termination itself) gives rise to the possibility of such a remedy. [141] Therefore, an order under s 144 of the ADA would have to be directed at preventing prejudice to the investigation or conciliation of the complaint, or some order of the Tribunal other than an order in the nature of reinstatement of the tenancy agreement. 65 RTA, s 277(3). 66 RTA, s 329(2)(j) and (k). 67 RTA, s 277(5). 68 RTA, s 293(2). 69 RTA, s 340(2) and 341(2). -- 25 of 26 -- 26 [142] Section 144 of the ADA does not confer power upon the Tribunal to grant general interlocutory injunctive relief to prevent future contraventions of the ADA. It may be invoked to prevent prejudice to the processes and remedies which might flow from a complaint that discrimination has occurred. It may not be invoked to prevent acts which, if performed, may found a complaint of discrimination. [143] Care must be taken not to lose sight of the fact that the only acts which may be restrained under s 144 are those which bear the characteristics of causing the specific prejudice referred to in the section, lest the provision be misapplied as though it conferred more general injunctive powers. Conclusion [144] Whilst I am of the view that the learned Senior Member erred in construing s 144 of the ADA too narrowly, I do not consider that the orders sought by Ms Coop under s 144 of the ADA could, or should, be made in this case. [145] The decision of the learned Senior Member is affirmed. -- 26 of 26 --