Currie v Brisbane City Council [2011] QIRC 70

CITATION: Robyn Anne Currie AND Brisbane City Council (B/2011/42) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 277 - power to grant injunctions s. 274A - power to make declarations s. 265 - commission's jurisdiction Robyn Anne Currie AND Brisbane City Council (B/2011/42) VICE PRESIDENT LINNANE 1 November 2011 Application for interim injunction to prevent an employer finalising disciplinary action that may lead to termination of employment - Allegations of unfairness and denial of natural justice during the disciplinary process - Dismissal had occurred at time of hearing - Held Commission has no power to issue injunctive relief to prevent an unfair dismissal of employment - Held Commission has no power to reverse an employer's decision to dismiss. DECISION [1] This is an application by Robyn Anne Currie (Applicant) seeking the following orders against the Brisbane City Council (Respondent):  that this application was validly lodged electronically;  that the Applicant has authority to make the application as an existing employee of the Respondent at the time of lodgement;  that the Queensland Industrial Relations Commission (Commission) has threshold jurisdiction to hear and determine the matter pursuant to s. 265(1)(b) of the Industrial Relations Act 1999 (Act) in respect of an "industrial matter";  that an urgent interim injunction be granted preventing the Respondent from completing the final stage necessary to effect a valid termination of the Applicant's employment; and/or  that a declaration be made that the termination of the Applicant's employment was not validly terminated by the Respondent. [2] I accepted the current application which had been electronically filed on 13 October 2011 and I listed the matter for hearing on 25 October 2011. [3] The factual circumstances necessary to determine this matter are briefly summarised as follows:  the Applicant was, at least at some time on 12 October 2011, employed by the Respondent in the position of Community Development Support Officer within the Community Services Unit of the Families and Community Services Division;  the Applicant notified the Industrial Registry of a dispute (D/2011/138) on 6 October, 2011 in relation to her employment with the Respondent alleging that the Respondent failed to comply with certain Award/Enterprise Bargaining Agreement provisions when dealing with a grievance lodged against the Applicant. In that dispute notification the Applicant further alleged that the Respondent was "unfair, breached fundamental principles of natural justice, failed to make reasonable accommodation for the Applicant's Aboriginality" and that the Respondent had been "inflexible, unconciliatory and uncooperative" in the disciplinary process;  a Conference was held in D/2011/138 on 10 October 2011 before a Member of the Commission at which time the Applicant was on suspension with pay from employment with the Respondent pending the outcome of the disciplinary proceedings;  that Conference did not resolve the issue in dispute between the Applicant and the Respondent and was concluded on 10 October 2011;  the Respondent made a decision to terminate the Applicant's employment on 12 October 2011 and a letter of termination was forwarded by courier to the Applicant's residence on the afternoon of 12 October 2011. -- 1 of 3 -- 2 An email was forwarded to the Applicant's representative at approximately 5.19 p.m. on 12 October 2011 advising of the termination of employment of the Applicant;  according to the material before me, neither the Applicant nor her representative received the termination correspondence on 12 October 2011;  the Applicant's representative electronically lodged the current application on 13 October 2011 apparently without knowledge that the Applicant's employment had been terminated on the previous day; and  at the time of hearing this application both the Applicant and her representative were aware that the Applicant's employment with the Respondent had been terminated. [4] Essentially the current application seeks to have the Commission initially place the Applicant back in the position she was in at the end of the Conference on 10 October 2011 (i.e. in the employ of the Respondent), and secondly to issue orders preventing the Respondent from terminating the Applicant's employment. [5] The application is unable to succeed on a number of grounds: (i) Even is one assumes that the dismissal of the Applicant's employment had not occurred on 12 October 2011, or shortly thereafter, the Commission is bound by s. 277(11) of the Act which provides as follows: "277 Power to grant injunctions (11) The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A.". Section 73 of the Act deals with 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 a 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 conduct, capacity or performance and whether the employee was given an opportunity to respond to the allegation about conduct, capacity or performance. Thus, if as 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. The Commission is, however, prevented from utilising any injunctive power found in s. 277 of the Act in respect of such matters. (ii) At the time of the hearing of this application, the Applicant had been dismissed from employment with the Respondent. Thus there can be no practical utility in the Commission granting an interlocutory order restraining the Applicant's alleged unfair dismissal. The unfair dismissal provisions of the Act are now available to the Applicant if, as she has alleged, the Respondent denied her natural justice and/or fairness in the manner in which the disciplinary action was undertaken. (iii) As for the declaratory order sought, no application is made under s. 274A of the Act for a declaration about an industrial matter. The issue referred to in the application concerns the alleged procedural unfairness in respect of disciplinary action being taken against the Applicant. That disciplinary process has now been completed with the termination of the Applicant's employment. Once again the Applicant has available to her the unfair dismissal provisions of the Act in order to canvas the matters outlined both in the material before me, in the notification of dispute proceedings (D/2011/138) and in the Conference held on 10 October 2011. [6] In such circumstances I have no power to issue any order which would put the Applicant back in the position she was in at the conclusion of the Conference on 10 October 2011, nor am I able to issue orders that would reverse the Respondent's decision to terminate her employment either on 12 October 2011 or shortly thereafter. Given that the Respondent has now terminated the Applicant's employment she can, should she wish, pursue an unfair dismissal application under the Act and air her allegations of unfairness and denial of natural justice on the Respondent's part. [7] Finally I wish to comment on one matter raised by the Applicant's representative during the course of the hearing. It was stated by the Applicant's representative that the unfair dismissal relief was limited to a maximum of six months' compensation with the implication being that such remedy was insufficient. It is to be noted that -- 2 of 3 -- 3 the primary remedy under s. 86 of the Act, assuming that the Commission is satisfied that an employee has been unfairly dismissed, is reinstatement to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal. Such relief, one would think, is the best possible remedy for the Applicant to pursue if her allegations of unfairness and denial of natural justice can be proved at an unfair dismissal hearing. [8] I dismiss the application. Order accordingly. D.M LINNANE, Vice President. Hearing Details: 2011 25 October Released: 1 November 2011 Appearances: Ms K.G. Walters for the Applicant. Mr J.W. Merrell of Counsel directly instructed by Brisbane City Council Legal Practice for the Respondent. -- 3 of 3 --