Department of Justice and the Attorney-General v Johnson [2006] ICQ 3 (2006) 181 QGIG 142

[Extract from Queensland Government Industrial Gazette, dated 3 February, 2006, Vol. 181, No. 5, pages 142-143] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 347 - application for stay Department of Justice and the Attorney-General AND Kevin James Johnson (C/2005/90) PRESIDENT HALL 23 January 2006 REPORT ON DECISION (as edited) In granting a stay from the Bench on 13 December 2005, the President stated: "By a decision published on 18 November 2005, Commissioner Blades allowed an application for reinstatement with the Department of Justice and Attorney-General by Kevin James Johnson. Commissioner Blades also made orders in relation to the payment of moneys relating to the period between Mr Johnson's termination and his reinstatement. There is now an application for a stay of the order in so far as it relates to reinstatement but not in so far as it relates to the payment of moneys. There are two aspects to reinstatement. One is that the person reinstated is returned to the emoluments and conditions and the benefits of the previous employment. The other aspect is that the person reinstated is allowed to take up again and resume the work and duties associated with that employment. The application is aimed directly at the second aspect of the reinstatement order. Commissioner Blades did, of course, in the nature of things, in determining to reinstate consider whether reinstatement was impractical and has ruled that it was not. The attack today is rather different. What is put is that it is impracticable to reinstate Mr Johnson forthwith while an appeal is pending and there is a prospect that rearrangements might have to be made, depending on the outcome of the Appeal. The evidence is that the position previously occupied by Mr Johnson is temporarily filled by another person, but that other person is in the throes of a project which is coming to fruition and that the project would be delayed by the substitution of Mr Johnson in that position. The evidence is that there is no other suitable vacancy. It is a case in which the Appeal itself can and will be heard on 14 February 2006. There is no way of achieving absolute justice in a case such as this. One can only do that which is appropriate, Croney v Nand (1999) 2 Qd R 342. In all the circumstances, I order that pending the determination of the Appeal set for 14 February 2006 Mr Johnson should not be permitted to perform and should not attempt to perform the duties of his former position. To avoid doubt, I order that Mr Johnson is, between the date of the reinstatement order, viz. 18 November 2005 and the hearing of the Appeal on 14 February 2006, to be remunerated in the ordinary way as if he had performed his duties. There are outstanding issues which are not reached by today's proceedings about what must be done by Mr Johnson to trigger the obligation to make payments in respect of the period between the dismissal and 18 November 2005. I make no comment about whether in the event of the Appeal succeeding moneys paid pursuant to an order of the Commission are or are not recoverable or do not make any comment about whether it is within Court's jurisdiction to decide such an issue. In light of some of the comments made today about the nature of the position to which, in the event of the Appeal being unsuccessful, Mr Johnson will be reinstated, Mr Johnson might want to give consideration as to whether he should file a cross-appeal about the matter of re-employment as distinct from reinstatement. I adjourn the Court.". Dated 23 January 2006. By the Court, [L.S.] G.D. Savill. Industrial Registrar. Released: 23 January 2006 Appearances: Mr C. Murdoch instructed by Crown Law for the Appellant. Respondent in person. -- 1 of 2 -- Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --