Coop v State of Queensland [2013] QCAT 263

CITATION: Coop v State of Queensland [2013] QCAT 263 PARTIES: Deborah Anne Coop (Applicant) v State of Queensland (Respondent) APPLICATION NUMBER: ADL043-13 MATTER TYPE: Anti-discrimination matters HEARING DATE: 29 May 2013 HEARD AT: Brisbane DECISION OF: Clare Endicott, Senior Member DELIVERED ON: 5 June 2013 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – where complaint made of unlawful discriminatory conduct – where government employee given notice of termination of employment – where application made to prohibit termination of employment before complaint finalised – where power of tribunal considered Anti-Discrimination Act 1991 (Qld), s 144 Public Service Act 2008 (Qld), s 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 59 Birrell v Australian National Airlines Commission (1984)5 FCR 447 Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590 Jones v Queensland Health [2010] QCAT 700 McIntyre v Hastings Deering (Australia) Ltd [2012] QCAT 438 APPEARANCES and REPRESENTATION (if any): APPLICANT: Deborah Coop represented by Mr Reidy of -- 1 of 5 -- 2 Counsel, instructed by Susan Moriarty & Associates RESPONDENT: State of Queensland represented by Dr Spry of Counsel, instructed by the Crown Law Office REASONS FOR DECISION [1] Ms Coop is employed by Queensland Corrective Services and at the time she ceased work in January 2011 she held the position of Manager, Offender Management. Ms Coop asserts that from about the middle of 2009 she experienced bullying and harassment in her workplace. She asserts that as a result she developed a psychological disorder which caused her to cease work. [2] More than a year after she ceased work due to her psychological disorder, her employer in March 2012 directed Ms Coop to attend an Independent Medical Examination under the Public Service Act 2008 (Qld). Dr Chung, a psychiatrist, provided a report and a supplementary report. He stated his opinion that Ms Coop could not return to her position as Manager, Offender Management in Queensland Corrective Services but she would be able to work in another division of the Department of Community Safety such as Fire, Ambulance or Emergency Services. It appears that this opinion is not seriously disputed by either party but the implications flowing from that opinion are in dispute. [3] In June 2012 the Public Service Commission issued a Directive about employees requiring placement.1 The parties in their submissions referred to the register created by that Directive as the ERP register. [4] However Ms Coop was not placed on the ERP register but on 18 June 2012 Geoffrey Allan, Executive Director, Queensland Corrective Services, decided to place Ms Coop on the Medical Employee Requiring Placement register – referred to by the parties as the MERP register. Ms Coop did not obtain a position while on the MERP register and on 19 February 2013 Mr Allan wrote a letter to Ms Coop informing her that he was giving consideration to retiring her under s 178 of the Public Service Act 2008 (Qld). By letter dated 19 April 2013 Mr Allan informed Ms Coop that he had decided that her employment would cease as from 31 May 2013. [5] Ms Coop has made a complaint based on impairment to the Anti- Discrimination Commission, Queensland. That complaint has been accepted by the Commission and the parties will undergo conciliation. Ms Coop applied to QCAT for an order prohibiting effect being given to a notice of termination of her employment on the grounds of ill health until her complaint of discrimination is dealt with. Alternatively she sought an order reinstating her to her employment until her complaint of discrimination is heard. 1 PSC Directive No. 06/12. -- 2 of 5 -- 3 [6] Her application is brought under s 144 of the Anti-Discrimination Act 1991 (Qld). QCAT has power to make an order prohibiting a person from doing an act that might prejudice the investigation or conciliation of the complaint by the Commission or that might prejudice an order that the Tribunal might make after a hearing. In Jones v Queensland Health2 Justice Wilson, the President of QCAT, described s 144 as intended to protect, primarily, the interests of a complainant before reference of the complaint to QCAT under the Anti-Discrimination Act 1991 (Qld).3 In Jones v Queensland Health, Justice Wilson described s 144 as self-contained. He referred to the words “might prejudice” being used in the context which suggests that the only question material to an application under the section is whether there is or is not a material risk of prejudice of a kind which might affect the things mentioned in s 144(1)(a) or (b).4 [7] If QCAT is satisfied that there are grounds to apply s 144, the Tribunal should then go on to consider whether to exercise its discretion and at that stage of its consideration, the well settled enquiries should be made as to whether the applicant has made out a prima facie case of discrimination and whether the balance of convenience is to be in favour of the applicant or the respondent.5 [8] In Jones v Queensland Health, QCAT was satisfied that an order should be made under s 144. Ms Coop finds herself in a position similar to the case of Ms Jones and her representatives argue that the outcome should be the same in both cases: an order should be made prohibiting the employer from continuing with the ill health retirement process until after the anti-discrimination complaint has been finalised. The employer does not agree and has submitted that there are essential differences in the cases which distinguish one from the other and which prevent QCAT from making the orders sought by Ms Coop. [9] In Jones v Queensland Health the Tribunal found two particular areas of prejudice arising from the material filed by Ms Jones: first, a difficulty advancing her complaint through the Commission and Tribunal if her employment and income from her employment were to cease and second, a constraint on the range of relief which might be open to Ms Jones if she ultimately succeeded in her complaint. Justice Wilson found that those risks may be readily categorised as things giving rise to prejudice to the requisite degree for the application of s 144. [10] The evidence establishes that Ms Coop is no longer in receipt of income from her employment. She is not being paid income by her employer and her income protection payments from Q-Super have ceased. Unlike Ms Jones, the fact that Ms Coop’s employment may cease will not have a direct and prejudicial affect on her financial ability to advance her complaint through the Commission and Tribunal as it was not argued that 2 [2010] QCAT 700 at paragraph 5. 3 See also McIntyre v Hastings Deering (Australia) Ltd [2012] QCAT 438 at [15]. 4 See Jones v Queensland Health at [12]. 5 McIntyre v Hastings Deering (Australia) Ltd at [21]. -- 3 of 5 -- 4 she is relying on income from her employment for that purpose. This is a material distinguishing point between Jones v Queensland Health and Ms Coop’s case and a point against granting relief under s 144. [11] The employer submitted that Ms Coop can seek re-instatement to her actual position within Queensland Corrective Services or she could seek re-employment to another position within the government employ if her employment were to be terminated and she later succeeded in her complaint. Despite assertions made on behalf of Ms Coop that her actual position has been re-classified and effectively abolished, the Tribunal was told at the hearing that the position is still in existence. Nevertheless, I accept the submissions made on behalf of Ms Coop that it may be practically difficult for the Tribunal to order re-instatement or re- employment when circumstances will have changed considerably between now and when the outcome of the complaint is ultimately finalised by QCAT. In terms of s 144, the termination of Ms Coop’s employment might prejudice an order that QCAT might make after a hearing. This point supports QCAT granting relief under s 144. [12] However there is another submission made by the employer which would, if accepted, have the effect of materially distinguishing Jones v Queensland Health and the present case. It was argued by the employer that Mr Allan, in the role of the employer, has already exercised all his powers under Chapter 5 Part 7 of the Public Service Act 2008 (Qld) and that his decision making is complete. It was argued that the employer has no further action to take and there is, as a result, no action that can be prohibited by an order of QCAT under s 144. In Jones v Queensland Health the ill health retirement process was not at that advanced stage and at the time of the application made under s 144 no decision had yet been made to terminate the employment of Ms Jones. [13] The employer relied on what was stated to be settled authority that the giving of notice of termination of a contract of employment operates to determine the contract by effluxion of the period of notice.6 On that authority the termination does not require any further action by the employer to take effect after the notice has been given. [14] Counsel for Ms Coop argued that it would be repugnant to the beneficial intent of s 144 if the right to relief were to be dependent on a matter of timing. Counsel argued that QCAT should under s 144 make an order prohibiting the employer from taking any act that has the effect of treating the decision to dismiss notified in the letter dated 19 April 2013 as having any force or effect. Counsel described such acts in this category as taking Ms Coop’s name off the payroll or removing her property from the employer’s premises. Counsel referred to English authority as support for his submission that injunctive relief can be given to stop a dismissal brought about by notice of termination of employment.7 6 Birrell v Australian National Airlines Commission (1984)5 FCR 447. 7 Irani v Southampton and South West Hampshire Health Authority [1985] ICR 590. -- 4 of 5 -- 5 [15] The answer lies in my view on the nature of the relief provided in s 144. The statutory scheme set up by the Anti-Discrimination Act 1991 (Qld) requires a complaint about unlawful discriminatory conduct to be referred to QCAT only after investigation and conciliation at the Commission. That referral stage has not yet been reached in Ms Coop’s complaint and so the complaint itself cannot be considered to be a proceeding in QCAT. Given that there was no proceeding before the Tribunal when the application was made under s 144, the injunctive provisions in s 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) are not called into play. Neither can the provisions for an interim order in terms of s 58 of the QCAT Act be used. [16] As already stated in [6], s 144 is intended to protect the interests of a complainant before referral of the complaint to QCAT. However the scope of the protection available to a complainant is limited by the wording of s 144. The power of the Tribunal is limited to prohibiting a person from doing an act: the section does not authorise the Tribunal to require the doing of an act. It is a power to restrict action and not a power to compel action. The powers in ss 58 and 59 of the QCAT Act are much wider but they are not available in this case. [17] On those grounds, I accept the submissions of the employer that there is no basis on which an order can be made under s 144. I conclude that I cannot make an order compelling the employer to take what would be a mandatory step to withdraw or to extend the notice of termination. Notice of termination has been given and no further act is required on the part of the employer to bring about the end of Ms Coop’s employment. It would be a mere artifice in my view to order that the employer is prohibited from doing an act that has the effect of treating the notice of termination as having force and effect in circumstances where no such act is required and the notice takes effect by the effluxion of time and by the force of law. [18] I dismiss the application made under s 144. -- 5 of 5 --