CG Smith v Department of Administrative Services [1993] QIRC 297 (1993) 143 QGIG 686

686 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 13 August, 1993 #################################################### QUEEN SLAND IN DU STR IAL RELATIONS COMM ISSION Industrial Relations Act 1990 s. 11.3 7 - applicarion for re insta tement C.G. Sm ith AND Departme nt of Admi nistrative Servi ces !No. 8388 of 1991) COMM ISSIONER DEMPSEY 30 Ju ly 1993 Con tin uation i n Employmen t - Re instatement to Former Position - Pre li minary Issue - - Ju risdiction of Commi ss ion -- Q ues tion as to Whether D i sm issa l Occurred - App licant Employed at Lower Class ification Level - Contract of Emp loyment - Case La w - Commission Has Jur isdiction to Hear Mati er DECIS IO N The appl ican t i n this matter Mr C. G. Smi th co n ten ds he has been dismissed from a position he held as Ma nager, Executive Support branch in the Department of Ad ministrative Services and seeks the interven ti on of the Industrial Relations Commission to overturn that decision. The ap plication w as lodged on 25 September 1991 and is couched in terms that cou ld be described as unfamiliar in matters such as thi s. The matter was set for prel im inary hearing on 20 No vember 1991 and du ri ng the process of that hearing the Crown acknowledged that in fact Mr Smi th so ught r el ief an d that the application was bas ed on i ss u es that surrounded reinstatement (page 2 of Tran sc rip t). It was further acknowledged or contended by the Crown that the Industrial Commission had j ur isdiction to deal w ith the matter and i n response to some prompting from the Commi ss ion Mr Re ill y at p age 7 of transcr ipt states:- " No . I am say ing th at the Commission has jurisdiction because the di smissal hasn '1 occurred. If a di sm i ssa l had occurred, then I wo uld say th at we had a su bst an ti al argument for th e jur isdiction. Bu t the public in terest argument I am putti ng is tha t there is a pr ocess that is well in tra in under a specific piece of legisl a1 ion, and I'm saying: why should th e Commission th en inlertere with that process at thi s stage . I'm say i ng that interference is not w ithi n the pu bli c interest and therefore i n terms of section 8.2 it shou ld refrain from further heari ng."(un de rl ining is min e). Then having been sat isfi ed that Mr Smi th 's positi on wa s i n jeopar dy and tha t the prospects of di smi ssa l were real isti c the matter was adjourned on th e basis that the Commission wo uld deal w ith th e application on 2 Ma rch 1992. At the requ est of the As sociation of Profess ion al Engi n eers, Australia, Queensland branch, Un ion of Emplo yees, th e matter has not been proceeded wit h until 5 May 1993 and at the commencemen t of that hearing Mr Kimber on beha lf of the Crown contends that th e Industri al Commi ss ion should not pro ceed to hear the matter as ii does not have th e j urisdic ti on to do so on two princ ipl e ground s: - , . The applica nt h as not b een dismissed. 2. The maiter h as been dea!t w i th under the provisio ns of another Act. Wit h respect to the first matter, i n proceedings on 20 Novem be r 1991 i t was sugges ted by the Crow n that because the di smissa l h asn't occurred the Commi ss ion has ju risdicti on to intercede, then on 5 May 1993 it is con tended that because di smissa l hasn 't occurred the Commission d oes not have jur i sd iction in accordance w i th the prov isions of section 11.37, therefore the question I mu st ad d ress is wh ich submission, that is Mr Rei ll y's or that of M r Ki mber should be responded to. I have decided to accept the most rece nt submission si mply because i t is current an d should refl ect the p os ition of the employer at th is po int in time. It is under th ese circu ms tan ces that I have to ad dr ess the question of dismi ssa l given t ha t the r es ponden t conten ds a di sm issal has not occurred. Beio re d ea ling with this i ssue I should tak e the opportunity to advi se advocates w ho find themsel ves dealing w ith a matter th at has been part heard and not dealt with by them se lves to at l east become fam iliar with what h as been put to the Commi ssion an d why it has been put in order to avoid confl icting su bmi ssion s in future matters. D i sm i ssa l ca n be by way of a dear precise an d dir ec t i ns truction of an employer to an employee or a superior to a su bordinate, or. the other hand it ca n be indirect, suggested or pu t to an empl oyee in a manner that the employee fin ds di fficu lt to reject and therefore a constructive dismi ssal may have taken pl ace or more su rreptitio us ly a posi ti on that once exi sted no longer exists an d therefore an employee is effectively made or decla r ed redund an t whi l e the need for that fu nc ti on remains. In this matter th e applicant contends he h as been di smi ssed from th e substan tive position he held as Manager, Exec utive Support Branch w i th sa lary at th e AO8 level and n ow occupies a posi ti on at level PO 4. Th e Crown con tends that M r Sm i th has accep ted this new positio n at the PO4 level, however the issue of acceptance i s clearly di spu ted. All tha t I have before me are the co n ten ti ons or submissions of the advoc ates. There is no evidence to sup port either view and therefore under these circumst ances I am pe r suade d by the fact th at this applica ti on is being pur su ed, that Mr Sm it h contin u es to dispute the loss of his previous position and his wo rking in hi s current position must be regarded as being undertak en without acquiescence or agreement. In cons idering whether in fa ct a dismi ssal has ta ken pl ace I have been pe rs ua d ed by the au tho rity referred to in the matter of Craig Dunstan and the National Mu tual Li fe Associati on of Austral asia Li mit ed by h is H onour Jud ge Duggan where the fo llow i ng is referred to:- "ln Macken McCarry and Sappi deen, 'Th e Law of Employment' 2nd ed to w hic h reference was made by both counsel at p. 103, appears the following passage: - • Unl ess the initi al co nt ;act a li ows it, we suggest that an agreed ch ange of jo b or a re-grading w i ll alm os t always amount to a term ination oi the exi st ing con tract an d the com mencemen t of a new one bv consent. In the absence oi a co ntract al low ing i i the employer cannot force changes on an employee. An attempt to do so w i ll in vo lve the employer in a breach of con trac t if he presses his req uirements in the manner exemplified in Mo lesworths case ."' Re fer " Tru th and Spo11sman Li mited" v Mo lesworth ( 1956 AR 924 NSW Arbitra ti on Re port s). Mo lesworth w as dow ngrad ed from B grade to C grade journali st. A simi l ar ma tter i s reported in the Western Austra li an Indu st ri al Gazette of 26 November 1980, p2291, Australi an Journali sts Association and W ri gh t Prospecting Pty. Ltd. where downgrading occurs an d the qu estion of di sm i ssal is upheld as was the p os ition in Mo lesworth' s case. I have al so co nsider ed the c irwmsta n ces i n th is matter as having so me sim il arities to that confron ted by G. C. Jones and Director General, Department of Premier, Economic and Trade Developmen t w hic h fir st came before the the n Chief Industrial Commissioner Led lie, reported QGIG 21 December 199 1 Vo! 138 No. 30 p ages 13 15- 131 8 where i t was contend ed tha t Jon es had not been dismi ssed and the ju ri sdic ti on of th e Commi ssion 10 deal w ith the matter was challenged. Commi ssioner Led li e ruled the Commission had ju ri sd ict ion. 13 August, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 687 This matter was dealt w it h under appeal and in the deci sion of the Presi dent, Jus ti ce Moynihan, the fo ll owing can be found: -(QGIG 18-4-92 Vol 139 No 28 p ages 840-842) " It w ill be r eca l led that the seco nd basis of th e appl icants argument was that the res ponden t having chosen the option which he did could not be sa id 10 have been di sm is sed. It wi II be noted th at the electi on offer ed by sect ion 20(4) of 1he Pub li c Se rvi ce Man age m en t and Empl oyme nt Act 1988- 1989 was to co ntinue as an officer. Th ere is no dou bt that the term inati on of lhe respond en ts employment under the con tract embraced in the ag reement was affected by the decision of th e Governor-i n-Coun cil. Th at the respondent might have avoided th at outcome by accep!ing its termi nation b ut con ti nuing as an o fficer does not, lor present purp oses seem to be the point. His appoi ntm en t was in fact and law te rmi na ted ." In the matter of Jones v Pre miers Departmen t ,he question of dism issal was canvassed at some length and h av ing co nsidered the decisions of th en Chief Com mi ssioner Led lie and the President, it would appear to me that the appli ca nt in thi s matter in so fa r as the que st ion of dismi ss al is concerned is in a simi lar posi tion if not the sa me position 10 that of Jones . By be ing dow ngraded from a position at AO8 level 10 PO4, and tak ing i nto consideration the circumstances, i. e. , forced change, I am of the opi nion that fo r relevani purp oses Sm i th shou ld be rega rded as havi ng been dismissed. Th e second matter ra i sed by the Crown is probably of more importance as it is likely to be ra i sed every time a public serva nts employment is terminated given the f act th at avenu es are avail ab le to address gri evances i ncluding those p resc ribed by the Industrial Re lations Act. It i s under these circumst ances I have consider ed the res pondents co ntention, the provi sions of section 5(9) 1ogether w ith a ll of the provi sions oi section 5 of the Pu b lic Service Management Ac t and the prov isions of sec ti on 16. 1 of the Industrial relati ons Act (which I w i ll refer to later as I am of the view that these provi sions are inextricably li nk ed and design ed to co mplimen t the other. They are no t d es igned nor orchestrated to create co nfusion, dive rsi on or dilemma). D ur ing the course of proceedi ngs on 5/5/9 3 I requested that copi es oi the ap1; lications to the Commissioner io r Public Sector Equ ity bP. provi aed lo me for considera ti on. My request was compli ed w i th an d Mr Pu ls for the /\p pl icant provided fou r documents {exhibi t 5) under the heading .. No ti ce Fo r fa ir Trea tment Appe al " . The,e documen t, seek the ap1)licant's detai l s, the b asis of appeal and the rea sons io r appeal. I have co nsidered th ese documents an d conclude as Fo ll ows:- 1. The appeal or r ev iew is abo ut fair trea1 men t an d the process or lack oi process provided 10 the aggr i eved party. 2. Th e appeal is based on what is referred to as a sta n da rd for iair treatment. 3. The reaso ns for su ch an appe al are based on the allega ti on tha t the Depar!men t of Ad mini strative ~ervices did not io l iow i,s grievance procedure 30/8/91 , bre.iched secti on l .8 of the Public Sector Ma nagement St andard ior Cr ievance procedt..res 16. 9 91, breached respo nsi bi liti es to un ion and PSM C procedures 25/9/9 1, nei ther the spi rit no r 1he substance of PSMC directions r ega rding redundancies w ere carried ou t 30/9/91. ·rh ese gri evances h ave been considered and in a decision dated 20/1 /92 Ms J.Y . Norton for the Commi ss ioner for Public Sector Equ ity l1 phel cl Mr Smith 's appeal an d gave re.isons for doing so (exhibit 1, appen dix 5). The determinati on made by the tribunal is also of i mpo rtan ce as i t requires the Department of Adm ini st rat ive Services to revi ew the applicant 's su itabi lity for a ll appropriate posi tions w ithin the Department, to assess his sk ill s, know ledge and ability and refrained from making a final determination on the matter 01 redeploymen t bui prov ided leave to see k a further h earing to consider Sm i th's SL1 i tabil i1 y fo r any vacant po~i t ion(sJ in the Department at .'108 or /\07 level but only ii su ch p os ition s exist. The Tri bunals invol vemen t continued .tn d eventuai iy a p os ition at PO4 was iound . For relevant purposes I have considered sec tion 5 in i ts total ity and find of inter est the follow ing subsections including .5.9: - "5. 1 Obj ect of Pa,1 (a) .. . (b) to preserve and declare the ju risdiction oi the Indus tri al Commi ssion to hear and determine matters relating 10 such grievances in cenain cases and in general where i t is in the pu bl ic i nter est. 5.3 (a) ... (b) all di sciplinary ac tion taken pu rsua nt to the Public Servi ce ,'v1a nagement and Emp loymen t Act 1988 -1990 exce pt dismi ssa l of an officer. 5.9 Jurisdi cti on of Industrial Commission. (1) The prov isions of th is secti on are in tend ed to be read and construed w ith the provisio ns of the Industrial Conciliation and Arbitration Act 1961 - 1989. ( 2) Th e Industri al Commi ss i on h as j urisdic1ion to hear and determine an industrial matter brought be fore it by an occupational group concern ing - a decision made or purportedly m ade applying a remuneration standard to the posi tion or class or position held by an employee or empl oyees represented by the occupational group; or a fa ilure to take ac tion to apply a remun eraiion standard to such a position, not wit h sta nding that the Classifi ca tion Revi ew Tri bunal has j uri sd ic ti on to hear and determine or h as heard and determined the matter. In exe rcising the j urisdiction preserved and con fe rred by this su b sec tion the In du st rial Commi ssion m ay ma ke an order varyi ng or modifying a remunerat ion standard in i ts app li cation to the employees repr esente d before the Commi ss i on, and any such order has effect according 10 i ts te nor no tw i thsta nding any other prov ision oi this Acl. l3) Su bject to subsection (2), the Industrial Commi ss ion d oes no t have j ur is di ction to hear 2,nd determine any rnatter th at is w ithin the ju risd iction of an appeal tribun al to hear and determine or that an appeal trib unal had heard and determined unl ess it is sati sfied that it is in the pubiic interes t th at it do so . (4) The Industrial Commi ss i on has Juri sd ic ti on to hear and determine, as an industrial matter - i a) an applicati on for reinstatement by a person wh o has been di sm ,ssed from the public serv ice pursu an t to sec tion 29 of the Public Service Management and Fmployme111 Act 1988-- 1990; (b) an appli cat ion by a per son who i s agg ri eved by a matter that an appeal tribunal wou ld have no jurisdict ion to h ea r on appeal because- the person is an officer or employee o f; other pe r sons w i th whom the per son wou ld be jo ined i n such an appeal are officers or employees o f; or a party to such an appeal wou ld be, the Pu b lic Sector Management Commi ss ion. (5) In addition to the powers conferred li po n i i by the i nd11stria/ Collciliation and Arbitra tion Act 1961 - 1989. the Industrial Co rn rn ission in exercising the jt iriscliction co nferrnd upon i t by subsection (4)- (a) u po n revi ewing any disciplinary act ion taken aga i ns t a person p urs ua nt to sect io n 29 of the Public Service Management and Employment Ac t 1988- 19 90, m ay- -- 1 of 2 -- 688 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE [ 13 August, 1993 (i) in lieu of punishment im po sed by the di sc iplinary authori ty concerned, substitute such other lawful puni shmen t as the Industrial Commission considers sho uld have been imposed; or (ii) remi t the matter 10 the di sci p li nary aut hority concerned for further cons ideration with such recommendations or di rections as it thinks fit; (b ) by paragr aph (a) thereo f, upon ordering the reinstatement of a person di sm is sed from the public service, may determine the extent to wh ich the pe r son should suffer loss of salary in respe ct of the pe riod duri ng wh ich the person w as not an officer of the pub li c se rvice by vi rtue of the dismissal. (6) An appeal tribunal has 11 0 jurisdiction to hear and determine a mauer that has been heard and determined by the Indust ri al Commission.". (underlining is mine) I h ave given consideration to th ese prov isio ns an d I am oi the opinion that the prov ision relied upon by the Cr own, sect ion 5.9(3), does not overri de nor limit the Industrial Commission's juri sd icti on i n so far as secti on 11.37 of the Industri al relati ons Ac t is concerned as it wo uld appear that sec ti on 5 .9(3) is qua li fied as being subject to subsec ti on (2) w hich appears to have been dependent on the establi shment of a Cl ass i ficahon Rev i ew Tribun al, sect ion 5.4. Furthermore sect ion 5.9(4 ) and (5 ) in fact acknowledges the powers and juri sd i ct ion of the Commission and is comp lementary to the provi si on of section 5.1(b) an d section 5.9(6) an d limi ts the role of a tri bu nal es tab lished under the PSM C Act. In support of my finding aga in I rerer 10 the decision oi the Presiden t in Jo nes v Pre miers Departm en t where Hi s Honou r finds as fol lows: - "lt is pe rtinent al so to note th at section 16.1 of the Industri al relations Act 1990- 1991 d ea ls w ith application of the Act. Subsection (1) of that section provi de s:-- " 16 .1 Application of Act to Crown. {1) This Act other th an Part 14 binds the Crown, except i n reiarion lO - (a) a matter (other than one of a descrip ti on referred to in paragraph (b)) as to wh ich an Ac t, other than thi s Act, prescribes a means by w hic h that matter must, or may, be determined, and a determi nation of that matter has been made by that means and is in iorce; (b) a matter as to wh ich an Act, other than this Act, prescri bes a process or procedure by wh ich to pursue the matter and does no t al low fo r jur isd iction of the In dustria l Court or Industri al Commi ss ion in respect of the matter; (c) a matter as lo which an Act, other than this ,'\et, excludes the juri sdicti on of the industrial Court or Industrial Commi ss ion or the appli cat ion of any decision wi th in the meani ng or th is Act in respe ct oi th e matter;". (Part 14 i s of no presen t rel eva nce). The Ind us tri al Commission' s juri sd icti on in so fa r as sect i on 1·1.37 (then 11 . 11 J is concerned was expressed as fol lows by the Pres ident i n the same ca se :- "The Commission, i n my view, has power to consider whether it is of the opinion co ntemp lated by section 11 .11 (1) as founding the re m ed i es provided by th e section. I shoul d mention that some of the issues canvassed on this appeal may wel l ultimately be relevant in the exercise of the Commi ss ion's jurisdicti on in forming the relevant opinion or i ts determining to in tervene. Such questions do not arise at this s1age .".(underlining m ine) It therefore appears 10 me that the Comm iss i on ' s juri sd iction wi ll not be exerci se d unt il such time as an op inion has been fo rmed and i n th is matter that op inion cannot be formed unt il M r Sm i th has been given the opportun ity to state his case and the advocate for the Cr own has been given the op portunity to respond. It wo uld appear to me that the con tention of dism issa l and rei ns t ate m en t in accordance w ith the provisions of section 11.3 7 of the Act h ave not been undertaken or exerci sed by the Fai r Treatment Tribunal, as the process that has been made avail ab le 10 M r Sm i th i s one designed to ensure he is treated fairly. The proce ss that has been m ade ava ilable 10 Mr Sm i th has never considered whether his di sm i ssa l from rhe position of Manage r, Executive Support Branch (AO8 ) was harsh, unfair or unj ust. What the process has do ne in my op inion i s en sure fair treatment after the dismissal took pl ace. The matter that is before me as I understand it is that the dismissal from the subs ta nt ive position, AO8, was harsh, un fair an d unjust. Therefore taking into consideration the pr ovi sions of the statu te s referred to above and th e views expr essed by various authoriti es, e.g., Duggan J. and the Pres ident, i t would appear that the matter that is the subject of this application aught 10 be permitted to proceed. I am further persuad ed to this direction in view of the comments of Mr Pu ls, " that this matter should be determined once and for al l "', as public time wh i ch engages cost has b een expended to a significant degree on Mr Smith to thi s poi nt in time. ll wou ld appear that the form ing oi an opi nion c an only be given credence i f the respec ti ve positions of the pa rti es are berore the Ind ustrial Commission for i ts consideration. If any party is deni ed the right to put its position the Industrial Commi ss ion c an not come to a balanced and well i nformed opinion . Given th ese consideratio ns it wou ld only be at least iai r to let th e app li ca nt state a case and consider the respondents contentions, th en having considered tho se conten tions, fo rm an opinion and determine whe th er interven tion by the Industri al Commission is warranted. Ii the position i s as I have stated j ur i sd ic ti on would seem to ex ist. It is th en a matter for the applica nt to demonstrate that the ac1ions of the employer are or have been harsh, unfair or unj us t. For the reasons exp ressed the chal l enge to j urisdic tion ma de by the Crown is rejected. The matter w i l l be rel is ted at the request of the applic an t. In the context of this provision I was referred to sect i on 14A Order accordingly. and B of Th e Acts lnterpretatio11 r\ct 1954- 1991 and to the Min ister 's second r eading speech in respe ct of the lnduscriil l H. DEM PSEY, Commissioner. Rela1ions Act '/ 990-1991. Th e ,\.1 inister is re corded as having sa id:- Appe,1ra11ces: - 'The Commi ss ion·s powers wi ll be extended to give i i greater control over the employment relationship between the Cr own and i ts employees under the bil l before us . In legi slative use we ha ve very much in mind that the Government as an employer, shou ld be accountable to an outside independent body as are priva te employer s. ' ." In the ci rcumstances of that pa rticular case the Pres ident also found as iollows :- "The juri sd iction given by secti on 11. 11 of the lndL, st riai Relations Acr 7990- - 1991 is founded on an op inion that in ail the ci rcums ta nces the Appe llant should be reinstated or re-e mp loyed. The Ju risdiction under sec ti on 11 . 11 is not fo und ed on conditio ns oi employmen t .. Ms K. Pr ior (i n st ructed by Rory S. Cunningh am ) for the applicant and later M r C. Pu ls of The Associati on of Professional Engi neers, Australia, Queensland Branch, Union of Employees, w ith him Mr C. G. Smi th ror the applican t. M r R. Rei l l y, w ith him Mr S. Beach and M r R. Kerr and later M r J. Kimber, wit h him M r D. Wa l l ace and Mr R. Kerr for the Department of Admi nistrative Servic es. Operati ve Dare: NIA Decision - Challange to jur isdiction reject ed . Release d: 30 July 199 1 13 August, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 689 -- 2 of 2 --