Carey v Department of Justice and Attorney-General [2002] ICQ 52 (2002) 171 QGIG 391

15 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE S:\QIRCDEV-BASE\QGIG\2002\VOL 171\NO.11 15.11.02.DOC 391 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission David Carey AND Department of Justice and Attorney-General (No. C82 of 2002) PRESIDENT HALL 6 November 2002 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission now reported at 171 QGIG 17. It is the second appeal generated by the reinstatement proceedings between David Carey and the Department of Justice and Attorney-General. The decision in the earlier appeal is reported at 170 QGIG 306. That appeal involved a decision by the Commission upon a preliminary issue, viz whether Mr Carey had been dismissed at the initiative of the Department of Justice and Attorney-General. The Commission had found that Mr Carey had been dismissed at the initiative of the Department on 26 October 2001. The appeal against that decision was dismissed on the ground that it was not flawed by error of law. Although it was unnecessary to do so, since the matter had been fully argued, the Court dealt with the question whether, if Mr Carey had not been dismissed on 26 October 2001 and his appointment as a temporary employee had continued on until its nominal expiry date of 2 November 2001, a failure by the Department to offer an extension of the appointment might properly be characterised as a dismissal at the initiative of the Department. The question was answered in the negative. The question was answered in the negative in reliance on s. 113 of the Public Service Act 1996. Authorities bearing on private sector employment were distinguished. In this appeal, counsel for Mr Carey seeks to impose a gloss upon the earlier decision. It is submitted that a failure to offer a further or extended appointment where the circumstances which led to the original decision to make a temporary appointment pursuant to s. 113 continue to exist, is a dismissal at the initiative of the chief executive. The submission is not without intellectual appeal. If the proposition be correct, a worker whose employment is limited by time fixed by reference to a date, achievement of a purpose or an event will have the same rights whether pursuing a calling within the private sector or a calling regulated by the Public Service Act 1996; save in the case where, the worker being a temporary employee pursuant to s. 113 of the Public Service Act 1996, at the expiry of the first engagement there is no temporary purpose to be achieved by an appointment pursuant to s. 113. Put more shortly, the submission is that the only case in which a public sector worker is denied a remedy available to a private sector worker is in the case where a failure to offer a further or extended engagement flows from a change of circumstance depriving the chief executive officer of the power to make a further or extended appointment. The difficulty is that the decision in the earlier appeal does not have a conceptual basis. It is a decision based on the interpretation of two statutes, viz the Public Service Act 1996 and the Industrial Relations Act 1999. It cannot be filleted by imposition of the limitation for which counsel for the appellant contends. To assert that a chief executive who has chosen to meet a need for the performance of work by making a temporary appointment pursuant to s. 113 must, if the need for the performance of the work proves to be on-going, continue to meet the need by extending the temporary appointment or making a further appointment (or a series of further appointments) rather than by, e.g., outsourcing the work or making a permanent appointment, is to shackle the discretion at s. 113 in a way which does not derive legitimacy from anything within the Public Service Act 1996 . Neither is there anything in the Industrial Relations Act 1999 to suggest that, once a need for the performance of work has first been met by an appointment pursuant to s. 113 of the Public Service Act 1996, any decision by a chief executive about how the need for work is to be met in the future is to be limited by the need to deal fairly with the original appointee in order to meet the requirements of Chapter 3 Part 2 of the Industrial Relations Act 1999. Against that background I now turn to the matters of detail. The outcome of the first appeal was that the matter was remitted to the Commission in order that it might be heard and determined according to law. When the matter was recalled in the Commission it was conceded by junior counsel for the Department that the dismissal of 26 October 2001 was unfair. Counsel for Mr Carey then pressed for reinstatement. The Commission rejected that submission. The Commission was right to do so. By s. 78(2) of the Industrial Relations Act 1999 the Commission’s power to order reinstatement is limited to a power to “reinstate the employee to the employee’s former position”. Mr Carey’s former position had come to an end on 2 November 2001. It is contended for Mr Carey that he had been given a temporary appointment pursuant to s. 113 of the Public Service Act 1996 because a decision had been made not to fill a vacant permanent position. It is submitted that upon appointment Mr Carey had a temporary appointment to that vacant position which relevantly became his “position” for the purpose of s. 78(2) of the Industrial Relations Act 1999. It is contended that if it may be shown that the permanent position continues to exist, unfilled by either a temporary appointment or the appointment of an officer, Mr Carey is entitled to reinstatement to the “position”. It is not necessary to decide the issues about whether a “position” for the purposes of a departmental budget or staffing chart may properly be described as a “position” for the purposes of s. 78(2) of the Industrial Relations Act 1999. The “position” was not “his”, i.e. Mr Carey’s. For reasons already given, if Mr Carey had not been dismissed on 26 October 2001, his appointment would have come to an end on 2 November 2001 and he would have been unable to enforce a claim to the position or matter under Chapter 3 Part 2 of the Industrial Relations Act 1999 because he would not have been able to point to a dismissal at the initiative of the employer. It is then contended that if, in proceedings pursuant to s. 74 of the Industrial Relations Act 1999, it is shown that the relevant chief executive is seeking to appoint temporary employees to discharge functions within the applicant’s range of competence, the applicant is entitled to an order for re-employment pursuant to s. 78(3) in the case where the dismissal is shown to be unfair. If the proposition be sound, and I will leave that issue for another day, there is no evidence before the Commission upon which a finding might have been made that the Department was seeking to make temporary appointments to perform tasks to which Mr Carey was suited. As to the matter of compensation, the Commission found that Mr Carey suffered no monetary loss. The complaint on the appeal is that the Commission failed to take into account certain Directives issued under the Public Service Act 1996. The short answer is that the Directives did not confer any right upon Mr Carey. On the most favourable construction, the Directives authorised the making of payments to persons in the situation of Mr Carey as a matter of discretion. It may well be, as counsel for the appellant suggests, that if Mr Carey’s employment had continued on until 2 November 2001 and -- 1 of 2 -- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 2002 392 had then come to an end, Mr Carey would have been entitled to seek judicial review if the discretions were not exercised in his favour. But he might not have sued for the money as a debt because he had no accrued right to the money. In another case, it might be legitimate to argue that by an unlawful dismissal the applicant in reinstatement proceedings lost the “chance” that a sum of money would be paid to him. That is not this case. On the materials, there is no measuring cast by which the Commission might have put a value on the “chance” in the case of Mr Carey. In reliance upon Oloyede v. Sunshine Plantation Pty Ltd trading as The Big Pineapple (1997) 156 QGIG 674, Sheedy v. Farmers’ Arms Hotel (1998) 160 QGIG 99 and Serratore v. Doyles Construction Lawyers (2001) 168 QGIG 9, Mr Carey sought compensation for humiliation and embarrassment visited upon him. The Commission rejected the submission because the Commission was not satisfied that there was hurt, humiliation and embarrassment. The Commission might well have been wrong about that but any error was an error of fact, not of law; compare Muhammad Alamzeb v. Education Queensland (No. 2) (2002) 170 QGIG 190 at 195. The suggestion that the Commission erred in assuming that proof of a “medical condition” was a precondition of access to compensation for hurt, humiliation and embarrassment cannot be sustained in light of the Commission’s comments upon the absence of evidence that assistance from “medical practitioners or counsellors” had been required. The question whether the line of authority which commences with a Oloyede v. Sunshine Plantation Pty Ltd trading as The Big Pineapple (1997) 156 QGIG 674 should be reconsidered in light of the decision of the Court of Appeal in Hatton v. Sutherland [2002] 2 All ER 1 and the decision of the New South Wales Court of Appeal in State of New South Wales v. Paige [2002] NSWCA 235 has not been argued and is left for another day. I dismiss the appeal. The Department has asked for costs. The matter was free from authority. The appellant’s submission was not without attraction. The effect of the various decisions in this matter is that the appellant has been treated differently to the way in which at least some applicants within the private sector have been treated. In my view it is just the sort of case in which an unsuccessful applicant is entitled to test his arguments on appeal. I dismiss the application for costs. Dated 6 November 2002. D.R. HALL, President. Released: 6 November 2002 Appearances: Mr T. Bradley, instructed by Agnew Consulting Pty Ltd, for the appellant. Mr G.C. Martin SC, with him Mr A.A.J. Horneman-Wren, instructed by McCullough Robertson, for the respondent. -- 2 of 2 --