Ergon Energy Corporation Limited v Training and Employment Recognition Council & Anor [2008] QIRC 14 (2008) 187 QGIG 82

[Extract from Queensland Government Industrial Gazette, Dated 8 February 2008, Vol. 187, No. 4, pages 82-85] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Vocational Education, Training and Employment Act 2000 - s. 231 - stay of decision Ergon Energy Corporation Limited AND Training and Employment Recognition Council AND Another (AT/2008/1) COMMISSIONER ASBURY 30 January 2008 REPORT ON DECISION (as edited) In giving her decision from the Bench on 24 January 2008, Commissioner Asbury stated: "Having considered the submissions of the parties, I am now in a position to give a decision in relation to the stay application. This is an application by Ergon Energy Corporation Limited (Ergon), under s. 231 of the Vocational Education, Training and Employment Act 2000 (the Act), for a stay of a decision of the Training and Employment Recognition Council issued on 24 December 2007. In that decision, the Training and Employment Recognition Council refused an application by Ergon for the cancellation of a training contract between Ergon and Timothy John Perry. The grounds upon which the cancellation was sought were that Mr Perry had engaged in serious misconduct as defined in s. 64 of the Act, or alternatively misconduct as defined in s. 70(a)(i)(B) or s. 70(b)(v) of that Act. There is material before the Commission outlining the circumstances which gave rise to the application by Ergon seeking the cancellation of Mr Perry's training contract. Given that the substantive appeal against the refusal to cancel the training contract is yet to be heard and determined, I do not propose to detail the contents of that material. It is sufficient to say that Mr Perry pleaded guilty to and was convicted of serious offences which were racially motivated - and in the words of the Judge who sentenced Mr Perry for his part in those offences - 'were abhorrent'. The issue for consideration in the current proceedings, however, is whether Ergon's application for a stay of the decision of the Training and Employment Recognition Council to refuse to cancel the training contract should be granted. It is contended for Ergon that the correct approach to the determination of this issue is that outlined by Justice Mackenzie in QNU v QCCI (1993) 143 QGIG 435, where it was stated that the principles to be applied involved, firstly, the consideration of whether or not the applicant had an argument that appeared likely to succeed on appeal, and if that question was answered in the affirmative, issues such as where the public interests lies and detriment to a party in the event a stay was granted or refused fell for consideration. This is the traditional approach followed by the Commission in deciding whether to grant interim or interlocutory relief in the form of an injunction. These principles were restated by the High Court recently in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57. This was noted by Deputy President Swan in the recent decision in Queensland Services Industrial Union of Employees v Woocoo Shire Council (2008) 187 QGIG 49, which was released on 3 January 2008. The Deputy President stated the principles in the following terms: whether the applicant has made out a prima facie case and whether the inconvenience or injury to the person on whose behalf the application is brought would be likely to suffer if an injunction was refused, outweighs or is outweighed by the injury which the respondent would suffer if the injunction were granted. The Deputy President also noted that at page 82 in their decision, the High Court said that the phrase, 'prima facie case' did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances, the preservation of the status quo pending the trial. It was also contended for the first respondent - the Training and Employment Recognition Council - that this traditional approach be adopted by the Commission in the present case, and it was pointed out that this approach was followed by Commissioner Blades in the only other matter which the parties were able to locate relating to a stay application under s. 231 of the Act. For the second respondent, Mr Perry, it was submitted that the correct approach to determining this issue is to apply the principles developed by President Hall in relation to applications made to stay decisions appealed against to the Industrial Court, in the later decision in Australian Agricultural Proprietary Limited v Banks (2004) 176 QGIG 1. -- 1 of 4 -- 2 In that case, the President examined the common law principles relating to the granting of stay orders and cited with approval learning which could be drawn on relating to those principles. However, it was noted by the President that such learning was from a time when stays were available only to protect the subject matter over litigation, or alternatively where a special case was made out. The President cited decisions of Master Lee QC of the Supreme Court in J C Scott Constructions v Mermaid Waters Tavern Pty Limited (No. 1) [1983] 2 Qd R 243, a 1983 case and the Full Court of the Supreme Court in J C Scott Constructions v Mermaid Waters Tavern Pty Limited (No. 2) [1983] 2 Qd R 255. In support of this argument, Mr Massey for the second respondent, pointed to the similarities between s. 347 of the Industrial Relations Act 1999 and s. 231 of the Vocational Education, Training and Employment Act 2000. In the case of Banks (supra), the President set out the principles, which are essentially that there is a balance to be struck between the competing interests of the plaintiff, who should not be deprived of the fruit of his judgment, and a successful appellant whose appeal may be rendered nugatory if a stay isn't granted. It was also pointed out that there is an onus on the applicant for a stay to establish that special circumstances exist, and a stay will only be granted where there are such special circumstances which are deposed to on affidavit by the appellant. A stay under s. 231 of the Vocational Education, Training and Employment Act 2000 is, in my view, not a stay in the strict sense of s. 347 of the Industrial Relations Act 1999. Neither is it an injunction in the sense of the powers of the Commission under s. 277 of the Industrial Relations Act 1999. However, the effect of a stay under s. 231 of the Vocational Education, Training and Employment Act 2000 is to grant interim or interlocutory relief to a party in advance of the determination of the substantive issue. In my view, there are relevant principles to be derived from the approaches contended for by all the parties. The granting of interlocutory or interim relief is discretionary. That is the overriding issue. There is also a decision of Commissioner Blades in Sheehan v Deputy Director-General of the Department of Employment and Training (2004) 176 QGIG 296, where a decision of President Hall in MIM Holdings v Australian Workers Union of Employees Queensland and Others (2000) 164 QGIG 296 was cited. As Commissioner Blades noted: 'President Hall said in that MIM case that the Commission should be loathe to make interim or interlocutory orders on the basis of part-heard cases where no final view has been formed as to the facts or the law.'. The President also urged caution in making orders on incomplete facts and incomplete argument in the absence of urgency justifying that course. Commissioner Blades in Sheehan (supra) did not consider whether there was a prima facie case, as he thought it would be premature to grant injunctive relief in the circumstances, because the situation was not so emergent as to justify that course of action. In the present case Ergon has demonstrated that it has some prospect of success. Ergon's case is arguable but, in my view, it does not have such a high probability of success on the basis of what is currently before the Commission, so as to outweigh other factors. The argument is incomplete and there is no final view as to the facts or the law. Applying the relevant principles, it is necessary for Ergon to demonstrate urgency or special circumstances or that the balance of convenience favours the grant of its application for a stay. In the present case the matters are somewhat intertwined. Relevant factors said by Ergon to favour the grant of the stay are that it did not act expeditiously when Mr Perry was a probationary employee out of a sense of fairness and because it accepted that he had a defence against the matters with which he had been charged and it was subsequently found that Mr Perry was effectively the second ringleader and was deeply involved. Mr Perry's conduct is in breach of Ergon's policy and procedures, in particular those relating to race discrimination. There are significant sensitivities relating to the potential for Mr Perry to interact with the substantial indigenous population in the areas of Ergon's operation. Mr Perry's identity and photograph have been disseminated in the media and he is recognisable in the community for an act of ignominy. There is potential for adverse publicity and damage to Ergon's reputation. There is potential for the media to become aware that Mr Perry is an employee or Ergon with likely adverse effects on the Company's corporate reputation. In the event that Ergon succeeds with its appeal, it will likely face difficulty in recovering wages from Mr Perry as statutory restrictions on the ability for Ergon to recover such wages are extensive. There is no evidence before the Commission as to financial hardship faced by Mr Perry as a result of this suspension. -- 2 of 4 -- 3 Ergon should not be required to expend money and resources on further training Mr Perry as in the event its appeal succeeds it will not be able to recover such money and resources. The matter will be heard and determined in a relatively short timeframe and it is better that the status quo remain rather than expose Ergon to the risks of damage to its corporate reputation. There is no risk that Ergon will default with respect to payment of wages to Mr Perry in the event that its appeal is not successful. Mr Perry has had two years of support from Ergon resulting from the stance the company took in giving him the benefit of the doubt prior to the matter being determined by the Court and, as it eventuated, Mr Perry did not have good defences to the matter as evidenced by his plea of guilty. It is also submitted that any difficulty with Mr Perry attending TAFE can be fully overcome and he can attend TAFE in a reasonably short period after this matter is heard and determined. There may be a cloud over Mr Perry's previous attendance at TAFE and the status of any results he achieved which would, in any event, prevent him from attending the next stage. It was contended strongly by Mr Murdoch that Ergon's primary concern was that they did not want Mr Perry back in employment or on Ergon premises or wearing Ergon livery. According to the submissions of the first respondent, the relevant considerations are that Mr Perry should have gone on to the third year wage level on 9 January 2008. He is not receiving any Centrelink benefits or income while on suspension by his employer. Mr Perry is due to attend TAFE on 29 January 2008 up until 15 February 2008 and, according to the affidavit of Ms McNeill, both Mr Perry and Ergon were advised of this by letter dated 3 December 2007. Stay of the council's decision will jeopardise Mr Perry's ability to attend TAFE and, according to the affidavit of Mr Fox, Mr Perry will be unable to attend any college for training while his training contract is suspended. Mr Perry has provided Ergon with a medical certificate indicating that he is unfit to attend work for the period from 23 December 2007 until the 3 February 2008 and is in the process of obtaining certification from his doctor that he is able to attend TAFE on 29 January 2008 for the period which he is scheduled to attend. A senior officer of Queensland Corrective Services has also advised that the main concern is that Mr Perry is working because he will be less likely to offend again and that Queensland Corrective Services will be flexible in order to ensure that Mr Perry is able to remain in employment. I also note from the material provided by Ergon that the sentencing Judge in Mr Perry's criminal matter noted that Mr Perry was in employment and he had a positive reference from his supervisor. Mr Massey for the second respondent submitted that the relevant consideration was the effect of the continuing suspension if the stay was granted on the parties to the appeal. In this regard the stay, if unsuccessful, has no application or impact on the appeal or the rights of the parties in the appeal. The legislative scheme under the Vocational Education, Training and Employment Act 2000 provides that where an employer has suspended an apprentice and applied unsuccessfully for cancellation of the training contract the apprentice is backpaid for the period and resumes work. The employer then has a right of appeal. If the stay was granted the effects would be to deny Mr Perry the fruits of the decision in his favour that the training contract not be cancelled. To do so in circumstances where the appeal has been commenced and can be litigated regardless of whether a stay is granted or not would be to deny Mr Perry the fruits of the decision without just cause or reason. There is no material before the Commission to indicate any real risk to Ergon in relation to publicity or threat to its corporate reputation and given the length of time which has elapsed such effect is unlikely. If the stay is refused, Mr Perry will not be in the workplace until after 15 February 2008, when it is likely that the appeal will have been heard and determined. The detriment to Mr Perry, of the suspension remaining in effect, outweighs any potential detriment to Ergon. Mr Perry is prevented from going to work, receiving wages and receiving training. The inability to attend TAFE as scheduled would be a significant, irrevocable and tangible detriment to Mr Perry because it will affect his wages and his future career progression. The only detriment likely to be suffered by Ergon is the payment of wages for the period and the possible need to have to find alternative work for Mr Perry. Ergon is a significant and substantial government corporation and it is difficult to see how its detriment could outweigh that of a third year apprentice who has been suspended since November 2007. After weighing up all of those competing factors I am of the view that this is not a case where the discretion to grant a stay under s. 231 of the Vocational Education, Training and Employment Act 2000 should be exercised. In my view, the detriment to Mr Perry is much greater than that which will potentially be suffered by Ergon if the stay is not granted. -- 3 of 4 -- 4 I have considered all of those factors but in my view the following factors are the most pertinent. Mr Perry has been without wages since his suspension on or around 16 November 2007. Although there is no evidence of hardship on the part of Mr Perry, it is obvious that this would create some level of hardship, notwithstanding that Mr Perry may be enjoying the support of his parents. The submission of the first respondent, is not disputed to the effect that Mr Perry has not received any Centrelink benefits during the period of his suspension. It is the case that continued suspension will result in a circumstance where Mr Perry cannot attend TAFE and I am satisfied that that is to his detriment, notwithstanding that he may be able to attend TAFE at some future time. I am also of the view that it is not determinative that previous attendance during suspension may be under a cloud. It is relatively clear that any such attendance was inadvertent and there is no indication that it will not count as credit towards Mr Perry's continuing with his studies. To the contrary, TAFE has currently indicated a preparedness to train Mr Perry, or to provide training to Mr Perry at the next level and I can only assume that that is because he successfully completed the last level of his training. If he did that while suspended and that creates an issue, then that is not a matter that is able to be determined by this Commission. I am also of the view that on Ergon's own material put before the Training and Employment Recognition Council, this matter has been ventilated in the media since February 2007, with Mr Perry's name being published on a number of occasions since that time. The risk that the media will, in 2008, pursue Mr Perry or Ergon in circumstances where he is being convicted and punished for his actions and is arguably trying to get his life back on track and rehabilitate himself is low. I am also of the view that in the event the matter is pursued, Ergon has taken steps to suspend or cancel Mr Perry's training contract and can point to the fact that it is outside the company's current control and that those steps have been taken. It is also the case that Mr Perry will not be in the workplace until 15 February 2007 and that the matter is currently scheduled to be heard on 4 and 5 February 2007. Further, it is relevant that remaining in employment is an important factor in Mr Perry rehabilitating himself and getting his life back on track. In all of the circumstances I can see no basis on the material currently before the Commission for granting the application for a stay and the application is refused. I order accordingly.". By the Commission [L.S] G.D. SAVILL, Industrial Registrar Hearing Dates: 2008 22 and 24 January Appearances: Mr J. Murdoch SC of Counsel, instructed by Mr S. Mackie of Deacons for the appellant. Mr R. McColm of the Training and Employment Recognition Council. Mr C. Massey of Hall Payne Lawyers for the second respondent. Released: 30 January 2008 Government Printer, Queensland The State of Queensland 2008. -- 4 of 4 --