Burrell v Credit Union Settlement Services Limited [1995] QIRC 23 (1995) 148 QGIG 339

338 QUEE NS L AND GOVERNM ENT INDUST RI AL GAZETTE I 10 Feb rua r y, 1995 10 Februa ry, I 995·1 QUEENS L AND GOVERNMENT I ND US TRIA L GAZ ETTE 339 ####################################### ###### ## # ####### Ql l EFNS L /\'-'D l'-:Dl i STRI /\ L H Fl .1\ T IO \' S CO v1MISSl ON fndusl tiaf Re/(l(i1111.1· .'le/ I 'JIJ() s. 297(5) - inh:rim order ii.,r rci n, tmcmclll M. 11 . Burrel! Credi t lJnion Settkm c:nt SL-rvi ce~ L imi ted ( OMMISS I01':i: R BOl ' G()l ' RI' 27 .Jalll " I I" ) 1995 Term i nati on of cmployrnrnl - Dismissal -- Prel i minary issue - Ap pli cal ion f()r in tc·r i m rcinslatement (>rder -- Rclcrcncc to ca se law App li cation refused. D l:CIS I O~ l;pon conclusion of submi ss i ons in this nnlllcr I slated that the application fi.,r an interim ortkr was refused and that I would i ssue wr itt en reas on s in due course. I now iss ue those reasons. On 17 Janua ry 1995 t he applicant filed an app li cat i on fo r n;i ns1atcmc nl to his fi,nncr po sition as Accounti ng Manager w it h Credit L:ni on Seltlcmcnt Se rvi ces Li mi ted of Tari nga (Cl /SSL) . In addi tion to th e usual r el i ef so ught i n such ap plication, th e applicam al so so ugh t an ••i nter im or de r th at t he appli ca nt remain in his _j oh un ti l any dispute is ;;c ttk d" . I h ave cons id ered this matter broadly nn the b as is oi' both an interim t >rd er for reinsta teme nt and injunctive rdicf. The ap p li cant sought an urgent hearing or his application for an Jmcrim Order hcm:c t he applicati on fo r inll:r im rel ief was li sted hcforc me on Monday 23 J an uary 1995. A t su ch hearing the applicant relied upon his application and supporl ing malcrial and also ga\'c oral .::v id cn cc and made oral submissions. The responden t cm pl o)cr rdic d upon an afl id av it or Mr Phil lip Grego ry Elliou. Chief Execu tive Ollicer of the rc spo ncknt. and al so m ade oral submissi t1 ns. The ap plicanl ap pea red on his ow n beh alf. M r 1.3 . B <Jlton so ught to appe ar for the respo ncl cm. however co ns cm by the appli cant to such appearance was not giv.:n by t he applicam hence I could not hear Mr Bo lton. IVl r Ell i olt th en ap peare d for th e res pondent. From my experience i n a number of si m ilar matters i t seems to me that so rnc Solicito rs an: far 100 C<1 sual i n relati on to appea ra nces before th is Com mi ssion in t ha t they seem tn assu me that beca use t he other p,Irty h,1s not pr ev iously n1 i scd th e i ssue there wi ll he eon senl lo thei r appearance before this Commission. The simple fac t is that under the Indust rial Refo1ions ,kl I 990 ( th e ;\ et) I have no discre ti on in the ma tter. I cannot gran t leave as some Soli citor, ask. There must l>c a pos i live co11sc11 t hy t he other party which. I might ad d. is us ually w ithhd<l unle ss the other party is al so legally rcpresenh;d. In •>rd cr to av0id inconvenience to thcm~e lvcs and their clie nts. So lici tlll"S should become ac 41mi nted with the practi ce or this Com mbsion i n rclutinn lo legal rc prc,enla ti on at fomwl rcinslatcmcnl he ari ngs as distinct from con fere nce s. ·111c materi al hdhre me discloses that the app li cant commenced work with the rcspomknt cmplnycr on 18 ; \ugusl 1994 ,tnd was te rminated on 13 fa n11 ary I 99 ~. The letter or appoi ni rncnt dated 15 Aug ust 199 4 in cl uded 1hc i,,llo\\·ing term,:- "QuaIi !Ying l'i.:ri0d: Y0 1J r appoinl 111 cn l i s subject to a thr ee (3) mon th sat.i~l ~1c tory perfor ma nce period. At the completion or three (3) 111011 1hs sc rvi cc. your pcrfonn ancc will he reviewed. and subject LO a satisfactory rcv i cv.- resul t. ~our pos ition w i ll be con fi nned as pcr111 ancn1.··_ By letter of 16 D ecem be r 199 4 the cmploy.:r indi ca ted it wa, not yet ahlc lo confi rm the ap plicants pcnnancncy and that a f 11 11hcr 3 mon th r n)bation period was required. The kth;r outli ned 3 r easo ns 1,1r ,uc h non cnn li nn ation which. i n brier tcnns. n: latcd to signature idcn t ifkot i<>n: prnnf that the app lican t was ,, Certi fied Practis ing ;\ ccountan t (CPA) an d th ird !~ some di fticulty ad drc~sing current accoun li ng i ssues. From tilllc to ti me there ha d bee n so me discussi ons about i ssu es between the parties . howc,·cr . on I '.l Janua ry 1995 the empl oyer ag a111 \\ rOtt: to t il e applicant emph as i sing the imptlrtancc of ccn ain i~s ul..!~ , so as ·· to <.m~ u rc- there urc no rn igunt.krstnn dings as t(> the impnnancc of the issue, discussed and the requirement~ 111' you in that r cg.anf" . The letter or 13 January 1995 indicated that th e applicants CPA $ta lils was see n as doubt fu l. The lcuer again r aised the 100 point JJ901 _ I . DOC -- 1 of 2 -- 340 Q UEENSLAND GOVERNMENT INDUST RI AL GAZETTE fl O February, 1995 i de nti fication requir emen t so that the ap plicant could become a signatory on an employer hank account. T he lcllc r concl uded as fol l ows:- -- 111 the event yo u arc un able to prnducc documcnHHion c on firming you arc a regi stered CPA. I h ave no altcrnati,·e than to advise that y our pos ition ca nnot be con fi rmed and see k you r r es ignation imm ed i ate ly." . By now the r es pon dent e mp loyer had b een making some en quiri es and in effecti ng t e1111 i nali on on 13 Jan uary I 995 al so relied on the follow i ng factor:-- " His fai lu re to disclose to the re spo nden t the foc t that he was an undischarged b an krupt and his fa l se ly de ny ing his status as an undischar ge d ban kru pt to the r.; spon dent in r csp~111sc to spe ci til: questions regarding that matter from its offi ce rs ." . The ap p li cant conceded in evid ence that he was speci li call y as ked i f he was an undischarged bankrupt and answe re d "nc>'. Th ..: app licant says he was not given cnoug.h time 10 ex plain but I lind his explanation un acceptable. In evidence. the ap 11licant was evasive on t he bankruptcy iss ue . As I underst and t he app li can t, he ma in tains thc bankruptcy iss ue whatever i t, tr ue status may he, is under cha I lenge by him. However. the app li cant did co ncede that he has l od ged a statem ent of affai rs wi th the Trust ee in 13ankruptcy and h as ais,) surrendered his Passport to the oflk i al rece iver. A document tendered hy the responden t states th at the sta tement of affai rs w as li led on I 7 Ju ne I 99 3 and the date of hank.ruptcy was 12 May I 993 . Notwi ths tan ding t he ab ove, the applicant maintains his bankruptcy status is uncertain or su bject to challenge. In any event the ap pli ca nt ' s "'Bankru ptcy Prohlcm" \~as not disclosed prior to his engagement or when he was i nitial ly questioned ahout it. Th e app licant's st at us as a CPA is also an is sue . T he respondent st ates curre nt CPA status w as ,11 1 esse nti al requi re men t for the position and that t he on ly appli ca nts i nterviewed were so qua li lied. T he re is dispu te as to whether th is issue was raised at the i nit ial interview. T he respondent subm its it was and is es senti al and w<1s not sta ted in the em ployment advertisement si ucc it '°g oes ,\·ithout say i ng" that the posi tion requi r e;: a CPA qu al ili cation. The Curri cu lum Vitae supplied to the employer hy the ap plican t sw1cs under th e head ing of ··Associations'" - .. I 984 Certi fied Practi si ng A ccount an t (C PA r ·. The n:s p1u1dent su bmi ts the IM1 11 1cn1i oncd st at eme nt in ters tha t the app li can t is a current CPA whereas t he applicant says it merely co nve ys that in 1984 he be came a (.' PA . It is conceded th at the ap plic ant has be en non-financia l since 1990 and th<: ap r li ca nt conc,; de s he cannot at pr esent use the ten n CP:\. There were lengthy suhmissi ons before me as to wh at th e appli can t ha, 10 do to rcsw re his C PA status. The app li cant seem ed to concede in .:vidcnc.: that he has bee n orall y told he has 10 pay approximately $950 in overdue f ees and satisfy the relevant authori ties on ihe ·'Bankruptcy Iss ue··. T he fact r ema i ns that notwi thstanding a number or requests by the r espo ndent and ad,·i ce to the app licant w take ti me off to rcctilY the issue. it has not been rect ifi ed to the res ponde nt° s satisfaction. A number of i ssues were ra i sed be fo re me wh i c: h I will not rd cr to herein. although I have considered them. There is c,)nll ict between the p,1rtics on som e scri1n1s i ssu es w hich I fi nd t 111 11 ccessa ry to resolve for the purpose of these proceedings . Th e respondent npposed th<:> interim order sought on 2 bases. namely:- ! . I do not have the j urisdi ct i on to make the order; and 2. If I do ha ve t he j ur i sd ictinn. there is nothi ng ou t of the ordinary lO ju st ify making the o rd er on the basis of me rit. I n pursuing his apr li c.1t ion. the applic an t spec il ical ly re li ed upon St:c ti on 297(5) of the i\ct and when I indi cated my douhts about any power being impose d upon me by th at secti on . he \\·as unable to refer me to an) other provision in the Act. Th e resp@dcn t submitted that s.297( 5) do cs not g.ivc me power to make the order soug ht and relied upon Dunh am v. Randwick Imagin g. Pt) Lld ({ 1994) 54 I.R. 207). For n::lcvant purposes. s.2 97(5) is id en tical to the then , . 170EH4) or the Industrial Relt11in ns Act 1988 (Commonwealrh) . In "D unhams Case" in dea li ng with s. 17 0EE(4). Wi lcox CJ said:- ··Whatcv,r the re as on for s. 170 1; 1,(4) one thing is clea r it is a savin gs prov i~ion, it does not con lc r a power. The r ower must be found ebcw here:·. Se ction I 70EE( 4) has now bee n re -enac ted in identic al lc m1~ as s. 170EE(6) \>f th e ClUTcn 1 Federal /\cl. In i ts current l<>rm i t was c on sidered hy Spender .I . in Awomoth·e Food Mewls and l ·.'11gi11e£'ring Union v. 1\'o rthem Iron and Brass Fac tor )' (d ec ision dated 14 July I 994). 111 th e latter case Spcndcr .I. appli ed the decision of Wilcox CJ in "D unhams Ca se··. With re spect I ag.rcc th at a similar interpretation should be app li ed in relation to s.297(5) of the Q ueen sl and Act. One m us t th en s~.arch for a power elsewhere in the Ac t. Se ction 42( I) of th e Act provid es for tht'. gr an ti ng of inj unc ti ons and wh i lst that relief is not ,pc cilic all y sought. the provisions of s.42( I) wou ld see m not to provi de a ss i stance i n the circ um stance, of this case . It ca nnot be suggested thal a hrca ch of an award is i nv olv ed since th e employment i~ award free and s.294 provides that co ntravention or su bd ivisilln I (Requi rements for lawful dismissal ) of Div ision 5 is not an offence. In "Dunhams Case " aforementioned . Wilcox CJ al so dealt with an applicati <H1 for i nterim rcinswtemenl and concltu.kd that he did not have power to make such an order under correspondin g l' edcral l.c!(islation. The "Dismissal Le gislnti on •• of Queen sla nd is in most i f nl>t all imp,irtant respec ts. consistent with the ~imilar Federal Legislation. Section 297 of the Queensland ,•\ et speaks of mal..ing an order fo r rci nstatemcnt. but that i:; a power exercised alicr a con lcrc.ncc under s.296 and upon the Ccll11111i ss ion be ing sa1islicd of cert ain factors. I can sec nothing in the spec i fi c provisions of the Act dea li ng wi th ··di,m i gsa l s'" which r;ivcs me the power to make I.he i nteri m order s ou gh t. I have not been rclcrrcd to any pro "is ion clse "hcre in the Ac t wh ich might gi,,c m~ the p<mcr to make the interim order .is s1>ugh t. For r easons wh ich I wi ll n(lw mention I li nd it unnecessary i11 this paiticular case to make a rn() rc spec ific determ ination in relat i on to my pnwc rs. ,1110 pa rticularly to w nsidcr whether so me power ma> ex ist elsewhcrc in lhc /\e t. A dd itionally I li nd it inappropriate to make a more defini te s1 atcmcnt in rel at ion to my powe rs in the ah sence or i nfom1td submi ss i on ~ on t he is,ue. [\·en if I had t he r ower to make an interim order for rcrnst atcm cn t. the ques ti on ari ses whether in the exercise or my discretion I wou ld do so i n t he particular circumstances of this case. In "D unh ams Case·· afor~mcntioncd. Wilcox CJ also dealt with th is i ss ue . In rn ~ view. ;1ssuming I did have the power. before an interim order iilr re i nsta te m en t. or some simi lar fom1 of injunct iv e relief, w ou ld be i m po,cd up on an employer. so me signi fi can t rea son would have II' be shown 10 exist. This rea so n mig ht i n,·olve J significant br each o f t he law or a fac tual si tuation i nv<, lving qui te sp eci al circumstances. and would prnbahly need to invo l ve an demcn t o f' cm.:rgcncy or re peti ti on <Hl the case of i njuncti"e relief. In my vi ew. there i, also n need to exe rci se considerable cau tion before forcing 13901 I.DOC I O February, 1995] QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE an employer to continue empl oyi ng a ~c nior employee, such a, the app li can t. who wou ld have acce ss to computers and sc nsiti \'C inli.mnati on . In mv vi ew the circumstance.~ of the instant case provide no basis " hatever for the granting or the interim order soul!hl. [n fac1 there would seem IO be sound rt·asons to the con trar; when one considers the n atu re of em ployment involved in this e;sc. the fact that permanent employ J11c nt sta tus h ad st i ll not been co n firmed . .i nd that prima jc,cie p roce dural foime% see ms to hav e been app li ed to the applican t. T he rcspond en1 is govern ed and supervised by the Austra l ia11 Fi na ncial Institutions Commission f.A.FI C) an d as a Spec ial Ser vi ces Pro\' ider m us t meet high sta n da r ds of fi nancial prude nce. In a ktter to the empl()ycr dated 16 January 19 9 5. ;\ FIC' states :- '"It is this C' ommi ss ion·s orinion that ollicers of SS Ps be above reproach and show complete integ rit y in their official capacities. This accords wi th the important role thut SSPs play i n :ilc Fi nanci al Instituti ons Scheme and anything that wou ld detract from th is position would not be ac cep table to AFIC .". In tile installl ca.,c th e respondent employer has b ee n unable to get the app lic an t to sat istY i t i n relat ion to the CPI\ is sue and 1he signature identi tin ,tinn issue. Whi lst these arc i ss ue s for forther evi dence and dc1ennination up on a hearing or t he app licati on g.enernl ly. the materi al before 1111: is not supporti ve or an i nterim order. The "Bankruptcy I ssue ... whi lst dispu ted by t he ap pli ca nt in certai n respects. certainly docs not enc ou rage one to make an i nte ri m o rd er h ea ri ng i n mind thc nature of cmpl oy m em i nvolved. In "Du nh am 's Cas e" . in relation to t he exe.rci se of di sc retion. W il cox CJ sa id :- ··Wh crc.ve r the fault ma y be. an order eornpel lin [! a conti nu at i on of the empl\,yrncn t relati ons hi p would cause prac1ica l problems.··. In my view that statem ent appli es w ith eq ua l fo rce to th e present cast! . bu t for dil'lcr cn l r easons . Under a ll of th .:: relevant ci rcu ms tances of this cas e, i f I had the power to make the or de r sought I wou ld. i n th e e xerci se <)f mv discre ti on , refuse the appli cation. without he sitati on . • The applica tion l<>r an interim order for n: instatcmcnt . or l i1r any rclicf't>y w ar of injunct io n. is re fused. The Commi1< sion c,rdc r, a1: cordingly. R. W. 130UGOlJR L Comm iss ione r. Appearances :- \4r M. I f. Hurrell on his 0\\11 hcl1alf. !Vlr P.G . Elliot t. wi th him M r D. Batc,on for Credit Union Sculcm en t Se rvi ces Lirni1cd. accc,m panied by Mr ll . Bohon for Sly \,\ 'cigal l. So li ci tors. Op~ ra tiv<.' Date: N//\ Decisi on - In te rim Order for Reinst ate men t Rdcascd: 27 January 1995 341 -- 2 of 2 --