AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Court of Australia
You are here:  AustLII >> Databases >> Federal Court of Australia >> 2010 >> [2010] FCA 399

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010)

Last Updated: 29 April 2010

FEDERAL COURT OF AUSTRALIA


Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399


Citation:
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399


Parties:
ELIZABETH LOUISE JONES v QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)


File number:
QUD 274 of 2009


Judge:
COLLIER J


Date of judgment:
29 April 2010


Catchwords:
INDUSTRIAL LAW – complaints against applicant CEO by employees and union for alleged bullying of staff – applicant represented employer in enterprise agreement negotiations – application to prevent respondent employer from taking action on basis of allegations and subsequent independent investigation – application for compensation and pecuniary penalty for contravention of the Fair Work Act 2009 (Cth) – application for declaration that respondent in breach of contract for failing to accord applicant natural justice – application for declaration that respondent estopped from denying applicant natural justice – whether breach by employer of s 340(1) Fair Work Act 2009 (Cth) – whether applicant had a workplace right under s 341 Fair Work Act 2009 (Cth) – whether applicant had a role or responsibility under a workplace law or workplace instrument pursuant to s 341(1)(a) Fair Work Act 2009 (Cth) – whether respondent appointed applicant a bargaining representative under s 176, s 178 Fair Work Act 2009 (Cth) – whether applicant was able to initiate or participate in a process or proceedings under a workplace law or workplace instrument pursuant to s 341(1)(b) Fair Work Act 2009 (Cth) – whether respondent has taken (or has proposed to take) adverse action against applicant – whether adverse action taken because of applicant’s workplace right – onus of proof – identification of effective decision-makers in respondent in light of General Motors Holden Pty Ltd v Bowling (1975) 12 ALR 605 – whether variation to applicant’s employment contract – whether natural justice provided to the applicant – whether detrimental reliance by applicant on representation that natural justice would be provided by respondent

Held: application dismissed


Legislation:
Fair Work Act 2009 (Cth) ss 3, 12, 176(1), 178, 340, 341, 342, 345, 360, 361, 387, 545(2), 546
Workplace Relations Act 1996 (Cth) s 298K(1)
Explanatory Memorandum, Fair Work Bill 2008 (Cth) paras 697, 714, 716, 1370, 1371, 1386, 1457


Cases cited:
Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; [2008] 238 CLR 570 cited
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 cited
Atkins v St Barbara Mines (1996) 22 ACSR 187 cited
Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd (2009) 185 IR 371 cited
Australian Securities and Investments Commission v Rich [2003] NSWSC 85 cited
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 cited
BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 97 IR 266 cited
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 cited
Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; [2001] 107 FCR 93 cited
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 cited
Elliott v Kodak Australasia Pty Ltd [2001] FCA 807; (2001) 108 IR 23 cited
Federal Supply Co v Angehrn (1910) 103 LT 150 (PC) cited
Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 631 cited
Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 cited
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 discussed
Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 cited
Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 applied
Hudson Investment Group Limited v Australian Hardboards Limited [2005] NSWSC 716 cited
Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 related
Kimpton v Minister for Education of Victoria (1996) 65 IR 317 cited
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 cited
McPherson v Dodd [2004] VSC 153 cited
Neilson v JSM Trading Pty Limited t/a Workhire Pty Ltd [2003] AIRC 331 cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 applied
Player v Isenberg [2002] NSWCA 186 cited
Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 discussed
Poliwka v Heven Holdings Pty Ltd (No 2) (1992) 8 ACSR 747 cited
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 cited
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 cited
Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 cited
State Bank of Victoria v Parry (1990) 2 ACSR 15 cited
Swiss Screens (Australia) Pty Ltd v Burgess (1987) 11 ACLR 756 cited
The State of South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 cited
United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 cited
Victorian Employer’s Federation v Federal Commissioner of Taxation [1957] HCA 37; (1957) 96 CLR 390 cited

Halsbury’s Laws of Australia (Butterworths 1999) Vol 1(2)


Date of hearing:
1-5, 8-10, 13, 24-25 February 2010


Place:
Brisbane


Division:
GENERAL DIVISION


Category:
Catchwords


Number of paragraphs:
263


Counsel for the Applicant:
Mr M Spry


Solicitor for the Applicant:
Cooper Grace Ward


Counsel for the Respondent:
Mr J Murdoch SC


Solicitor for the Respondent:
Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 274 of 2009

BETWEEN:
ELIZABETH LOUISE JONES
Applicant
AND:
QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
Respondent

JUDGE:
COLLIER J
DATE OF ORDER:
29 APRIL 2010
WHERE MADE:
BRISBANE

THE COURT ORDERS THAT:


The application be dismissed.


Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 274 of 2009

BETWEEN:
ELIZABETH LOUISE JONES
Applicant
AND:
QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
Respondent

JUDGE:
COLLIER J
DATE:
29 APRIL 2010
PLACE:
BRISBANE

REASONS FOR JUDGMENT

  1. On 25 November 2009 I made interlocutory orders restraining QTAC from taking any action against Ms Jones until the hearing of the substantive application filed in these proceedings: Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382. Background facts to these proceedings are outlined in Jones [2009] FCA 1382 at [13]- [14] and in the Agreed Chronology filed 1 February 2010. In summary, QTAC processes student applications in Queensland for admission to undergraduate and diploma courses offered by tertiary institutions in that State, as well as applications to some tertiary institutions interstate. It is not in contention that members of QTAC are tertiary institutions, the majority of which are located in Queensland. Ms Jones, who is the Chief Executive Officer of QTAC, has been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”). The members of QTAC wish to hold a general meeting to consider an independent report, commissioned by the Chair of the QTAC Board of Directors, investigating those allegations (a report entitled “Report on Grievances against CEO, QTAC” dated 28 September 2009 produced by Ms Carol Watson, hereinafter referred to as “the Carol Watson Report”). My interlocutory orders of 25 November 2009 currently prevent the holding of this meeting or other action against Ms Jones by QTAC in reliance upon the Carol Watson Report or other documentation identified in those orders.
  2. It is clear from both the pleadings and the affidavit material filed in these proceedings that Ms Jones believes QTAC’s actions have been, and continue to be, motivated by pressure brought to bear upon QTAC by the ASU. More particularly, Ms Jones claims that the ASU has orchestrated a campaign against her relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC, and that in taking adverse action against her QTAC has yielded and continues to yield to this campaign in contravention of the Fair Work Act 2009 (Cth) (“the Act”). Ms Jones also claims that QTAC promised that it would engage in fair processes to investigate the claims against her, and that there has been either a variation to her contract of employment to that effect, or alternatively she has acted to her detriment in reliance on QTAC’s representation to that effect.
  3. I do not find Ms Jones’ claims substantiated. In my view the application should be dismissed. My reasons for so finding follow.

MS JONES’ CLAIM

  1. By amended application filed 18 December 2009 Ms Jones seeks relief for adverse action taken against her, and/or proposed to be taken against her, by QTAC because of her role and/or participation in negotiations for an enterprise agreement, and for breach of her contract of employment.
  2. To the extent that Ms Jones has a statutory cause of action based on the fair work legislation, Ms Jones relies on s 340 of the Act which provides as follows:
(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4 1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4 1).

  1. As final relief, Ms Jones claims:
    1. Pursuant to section 545(2)(a) of the Fair Work Act 2009 (Cth), an injunction restraining QTAC from taking any action against her in reliance upon:

(a) any allegations against her made by the ASU in its letter to QTAC dated 7 August 2009; and/or

(b) the complaint made against her by Nicola Bowes dated 7 August 2009; and/or

(c) the anonymous complaint made against her dated 11 August 2009; and/or

(d) the anonymous complaint made against her dated 12 August 2009; and/or

(e) the complaint made against her by Danelle Bayley dated 13 August 2009; and/or

(f) any allegations against her made by the ASU in its letter to QTAC dated 14 August 2009; and/or

(g) the Carol Watson Report; and/or

(h) Walter Williams’ diary notes forwarded to Ms Jones by Professor Deborah Terry on about 30 October 2009.

  1. Pursuant to section 545(2)(b) of the Act, QTAC pay Ms Jones compensation for loss suffered by her because of QTAC’s contravention of the Act.
  2. Pursuant to section 546 of the Act, QTAC pay Ms Jones a pecuniary penalty for QTAC’s contravention of the Act.
  3. A declaration that QTAC is in breach of the contract of employment between Ms Jones and QTAC by failing to accord Ms Jones natural justice in the purported investigation into the allegations and complaints against her.
  4. A declaration that QTAC is estopped from denying that it is required to afford Ms Jones natural justice in any decisions affecting Ms Jones’ employment.
  5. A declaration that QTAC is estopped from relying on the Carol Watson Report.
  6. A declaration that QTAC is estopped from relying on the Walter Williams diary notes referred to in paragraph 1(h).

More specifically, in her Amended Statement of Claim filed 18 December 2009 Ms Jones pleads inter alia:

ISSUES FOR DECISION IN THIS CASE

  1. Generally, Ms Jones’ Amended Statement of Claim identifies three causes of action, which can be described as follows:
  2. The issues which require decision in respect of these causes of action are:

THE WORKPLACE RIGHT CAUSE OF ACTION

  1. It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act. However once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect of the reason for the adverse action by the employer. At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.
  2. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.

1. Did Ms Jones have a workplace right under section 341 of the Act?
Submissions of Ms Jones

  1. Ms Jones’ submissions as to whether she had a workplace right may be summarised as follows:

QTAC’s submissions

  1. QTAC’s submissions as to whether Ms Jones had a workplace right may be summarised as follows:

Consideration

  1. So far as is relevant in these proceedings, s 341(1) of the Act defines “workplace right” as follows:
(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) ...

  1. “Process or proceedings under a workplace law or workplace instrument” is defined by s 341(2) to mean:
(a) a conference conducted or hearing held by FWA;

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i) making a request under Division 4 of Part 2 2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

  1. It is clear that the workplace right asserted by Ms Jones pursuant to s 341(1)(a) is that she was the bargaining representative of QTAC, which was her role or responsibility in respect of the making of an enterprise agreement within the meaning of s 341(2). It is also common ground that the enterprise agreement the subject of negotiations in 2009 was not a greenfields agreement within the meaning of s 12 of the Act.
  2. It is appropriate to examine the issue whether Ms Jones had a workplace right in two parts – first whether Ms Jones was QTAC’s bargaining representative within the meaning of s 341(1)(a), and second whether Ms Jones had participated in a process or proceedings under a workplace law or workplace instrument pursuant to s 341(1)(b).

Was Ms Jones QTAC’s bargaining representative?

  1. Extensive submissions were made by both parties in these proceedings as to whether Ms Jones was QTAC’s bargaining representative. In considering this issue in light of the facts of this case, the following sub-issues require determination:

What are the statutory requirements for appointment as a bargaining representative of an employer?

  1. The relevant provisions of the Act for the purposes of these proceedings came into effect on 1 July 2009.
  2. Section 176(1) of the Act describes the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi enterprise agreement in relation to which a low paid authorisation is in operation--the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

  1. Further, s 178 of the Act identifies other matters relevant to the appointment of a bargaining representative as follows:
Appointment of bargaining representatives--other matters

When appointment of a bargaining representative comes into force

(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

(a) for an appointment made by an employee who will be covered by the agreement--be given to the employee's employer; and

(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement--be given, on request, to a bargaining representative of an employee who will be covered by the agreement.

Regulations may prescribe matters relating to qualifications and appointment

(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representative.

  1. To date, the legislature has not by regulation prescribed matters relating to the appointment of bargaining representatives, including forms of appointment.
  2. The following conclusions may be drawn from these provisions so far as concerns the appointment of a bargaining representative by an employer in relation to a proposed enterprise agreement that is not a greenfields agreement:

What is the appropriate approach to construction of these provisions?

  1. The object of the Act is found in s 3. Section 3 provides as follows:
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations; and

(g) acknowledging the special circumstances of small and medium sized businesses.

  1. It is clear from s 3 that the objective of the legislature in enacting the Act was to promote fairness, flexibility, productivity, accessibility and effectiveness. This purpose is also clear from Parliamentary Debates introducing the Act, for example comments of the Minister to the effect that the legislation was based “on the enduring principle of fairness while meeting the needs of the modern age” (the Honourable Julia Gillard MP, Minister for Employment and Workplace Relations, Second Reading Speech 25 November 2008 Parliamentary Debates House of Representatives p 11189).
  2. References to the role of “bargaining representative” are repeated throughout the Act. The term is not defined in the Act and is a newly-created role, replacing the role of “bargaining agent” under the previous Workplace Relations Act 1996 (Cth). Paragraph 697 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provided:
Bargaining representatives have a more significant formal role in the bargaining process compared to bargaining agents under the WR Act. Bargaining representatives are entitled to: bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply for (among other things) protected action ballot orders, bargaining orders, majority support determinations, scope orders and serious breach declarations. Bargaining representatives are also entitled to represent a person in matters before FWA (see clause 596). As part of their responsibilities, bargaining representatives for a single-enterprise agreement and a multi-enterprise agreement to which a low paid authorisation is in operation are required to meet the good faith bargaining requirements set out in subclause 228(1). Non-compliance with the requirements exposes a bargaining representative to bargaining orders. Division 3 also makes clear that an employer must not refuse to recognise or bargain with a bargaining representative.

  1. In my view the legislation referable to the appointment of a bargaining representative in these circumstances should be interpreted liberally. The Act is intended to be accessible to employers large and small, as well as to employees both in their own capacity and through union membership. It is intended to assist relevant parties and facilitate the processes contemplated by the Act, including negotiation of enterprise agreements. The role of bargaining representative is clearly significant, however I consider that, in relation to the circumstances relevant to such appointments, the key factor is that there be attendant certainty upon the creation of the role rather than a requirement of overt formality. So, it must be clear on the face of the relevant document that the position has been created, and a copy of that document must be capable of being given to a bargaining representative of the employee (s 178(2)). Accordingly, for example, I do not consider that reference to “instrument of appointment” in s 178(1) requires that a document purporting to record the appointment of a bargaining representative of an employer be a document of the formality of a deed under seal. Provided the appointment is made in writing, as required by s 176(1)(d), and provided it clearly evidences the creation of the role, the appointment is effective.
  2. Both parties in the course of the proceedings made submissions as to whether, to be effective, the instrument of appointment must specify the date on which it comes into force. In particular, s 178(1) of the Act states:
An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

  1. In my view the formal specification of the date of commencement of the role in the instrument of appointment is not a condition precedent to the effectiveness of the appointment itself. I form this view because:
    1. The language of s 178(1) does not mandate the effectiveness of the instrument of appointment as dependent on the formal specification of a date of commencement in the instrument itself. The appointment commences on the day specified in the instrument.
    2. It is not surprising that the appointment comes into force on the day specified in the instrument of appointment – indeed given the formal role, responsibilities and potential liabilities of the bargaining representative it is important that there be certainty in the date on which the bargaining representative takes up the position. However I consider that the terms of the legislation are met if, as a matter of construction of the instrument of appointment, the date on which the appointment comes into force is evident on the face of the instrument of appointment.
    3. It is informative to compare s 178(1) with s 178(2)(b), which requires that a copy of the instrument of appointment must be given, on request, to a bargaining representative of an employee who will be covered by the agreement. It follows from this provision that the appointment must be in a form capable of being given to other parties to the negotiations, and supports the necessity of the appointment being made in writing. By contrast s 178(1) simply provides that the appointment of the bargaining representative comes into operation on the date specified.
    4. As a matter of legislative construction I do not think that s 176(1)(d) and s 178(1) should be read together with the result that an instrument of appointment of a bargaining representative is not valid unless, for example, there is a specific statement in the instrument explicitly stating the date of the commencement of appointment of the bargaining representative. While such a statement may be valuable, I do not consider such formality to be required by the legislation. I note in particular the objects of the legislation to which I have earlier referred (cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390-391), including the intention of the legislature that the Act provide accessible and effective procedures for use by employers and employees. A finding that an instrument of appointment is not effective in the absence of such specific statements would, in my view, run contrary to such legislative intention.

What was the process whereby Ms Jones claimed she was appointed QTAC’s bargaining representative?

  1. The documents upon which Ms Jones relies in respect of her claim that she was appointed the bargaining representative of QTAC are:
The Board discussed a formal complaint which had been made by a staff member against the CEO and agreed on a course of action to be taken by the Chair.

This item was discussed with only Board members and the CEO in attendance. The following documents were tabled:-

(i) correspondence from the Australian Services Union (ASU) to the Chair of the Board dated 7 August 2009;

(ii) correspondence from the Australian Services Union (ASU) to the Chair of the Board dated 14 August 2009

(iii) Australian Services Union (ASU) Log of Claims

The Board confirmed that Ms Jones would continue to be the bargaining representative for QTAC. (reproduced as in original)

The Board has confirmed that the CEO should continue to be QTAC’s bargaining representative.

This letter followed an earlier letter dated 7 August 2009 from Ms Bignell to Mr McAndrew in which Ms Bignell wrote:

Please advise us of the Board’s position in relation to the appointed Bargaining Representative of QTAC and provide confirmation that an independent investigation will be undertaken as a matter of urgency by the close of business 12 August 2009.

  1. Mr Spry for Ms Jones submitted that the appointment of Ms Jones as QTAC’s bargaining representative took effect:

Was the process whereby Ms Jones claims she was appointed QTAC’s bargaining representative effective to appoint her to that role?

  1. In my view the process whereby Ms Jones claims she was appointed QTAC’s bargaining representative was effective to appoint her to that role, as of 18 August 2009.
  2. Notwithstanding the powerful arguments submitted by the respondent to the contrary, I form this view for the following reasons.
  3. First and foremost, Mr Colin McAndrew as Chair of the Board of QTAC said, in his letter of 18 August 2009 to Ms Julie Bignell, Branch Secretary of the ASU, that Ms Jones was QTAC’s bargaining representative. So did Professor Deborah Terry in para 7.4 of her letter of 29 October 2009 to Ms Jones and Ms Jones’ solicitors Cooper Grace Ward, which letter was written apparently at a time when the QTAC Board was receiving legal advice specifically in relation to issues raised by Ms Jones. In my view the obvious inference to be drawn from this correspondence is that Ms Jones did indeed occupy this role.
  4. Second, I accept the submission by Mr Spry on behalf of Ms Jones that the letter of 18 August 2009 from Mr McAndrew to Ms Julie Bignell was effective as an instrument of appointment of Ms Jones as bargaining representative, and that the appointment was effective as of 18 August 2009. The text of the letter was as follows:
Dear Ms Bignell

I refer to your letter of 7 and 14 August regarding the QTAC Enterprise Agreement negotiations and your expressed concern about the QTAC CEO.

The QTAC Board received copies of your correspondence at its meeting today and was also notified of the complaint made by Dr Nicola Bowes.

The Board and the CEO are conscious of their respective responsibilities under the Fair Work Act and in regard to health and safety and will certainly fulfil their obligations in both areas.

The Board has confirmed that the CEO should continue to be QTAC’s bargaining representative.

In respect of Dr Bowes’ complaint, the CEO has provided with (sic) a copy of the complaint and requested to provide me with a written response. Once I have received this response I will consider what, if any, action should be taken.

Yours sincerely

A.C. McAndrew
Chair, QTAC Board

  1. This letter followed the Board meeting of QTAC, where it appears from the minutes – albeit unconfirmed to date – that the Board gave consideration to the role of Ms Jones in the negotiations. The appointment of Ms Jones as bargaining representative, as appeared in the letter of 18 August 2009, was the clear result of a considered decision by the QTAC Board.
  2. Third, although that letter did not specifically state that Ms Jones’ appointment took effect from 18 August 2009, in fact the letter was dated 18 August 2009. For reasons I outlined earlier in this judgment in relation to formal requirements of appointment, I do not consider the letter needed to specifically state that the appointment was effective from 18 August 2009. I consider that the date of the letter was “the date specified in the instrument of appointment” for the purposes of s 178(1).
  3. I note that the letter states that Ms Jones would “continue to be QTAC’s bargaining representative”. The Act had substantially commenced operation only the month prior to the date of the letter. Because all events relevant to these proceedings took place after 18 August 2009 it is not necessary for me to decide whether this letter had – or was capable of having – retrospective operation, so as to vest Ms Jones with the role of bargaining agent prior to 18 August 2009. One possible interpretation which could be given to the circumstances between 1 July 2009 and 18 August 2009 was that the default position recognised in s 176(1)(a) applied, and that during that period QTAC was “its own” bargaining representative, albeit with Ms Jones performing as the “human face” of QTAC in negotiations. Indeed, as para 716 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) makes clear, there is no restriction on when a person may appoint a bargaining representative.
  4. Fourth, it could reasonably be interpreted from the letter of 18 August 2009 that the Board was cognisant of the statutory role of bargaining representative and had deliberately chosen to vest Ms Jones with that role. The expression “bargaining representative”, while possibly interchangeable in casual parlance with such terms as “bargaining agent” or “bargaining spokesman”, nonetheless at the time of the letter was a role newly created by the Act. It would be strange to find that Ms Jones was not the bargaining representative when she was specifically identified as such in the letter of 18 August 2009, particularly in light of the statement in Mr McAndrew’s letter that “The Board and the CEO are conscious of their respective responsibilities under the Fair Work Act”. The obvious inference to be drawn from that statement was that QTAC was, indeed, aware of its responsibilities under the Fair Work Act, including its responsibilities in relation to enterprise bargaining negotiations.
  5. Fifth, Mr McAndrew’s letter of 18 August 2009 was in response to, inter alia, a previous letter of 7 August 2009 from Ms Bignell of the ASU, in which Ms Bignell several times referred to Ms Jones as “the appointed Bargaining Representative of QTAC”. It is not disputed in these proceedings that the ASU was a bargaining representative of employees of QTAC for the purpose of the enterprise agreement negotiations. While this description by the ASU in Ms Bignell’s letter could not vest Ms Jones with a role she did not actually hold, nonetheless in my view an inference may be drawn from Mr McAndrew’s letter of 18 August 2009, responding to the ASU’s letter and terminology, that Ms Jones was indeed “the appointed Bargaining Representative of QTAC” for the purposes of the Act.
  6. Sixth, s 178(2) requires that a copy of the instrument of appointment be capable of being given to a bargaining representative of the employee on request by that person. In my view this contemplates that copies (or indeed the original) of the instrument of appointment will also be retained by the employer, including potentially to provide a copy to the bargaining representative of the employer himself or herself. Indeed, while the ASU as bargaining representative of the QTAC employees did not appear to make a request within the meaning of s 178(2), nonetheless it appears that a copy of the letter of 18 August 2009 confirming her appointment was provided to Ms Jones on 18 August 2009. Ms Jones could reasonably assume that the letter meant what it said – namely that she was the bargaining representative of QTAC for the purposes of the Act.
  7. Further, the letter of 18 August 2009 was addressed to the ASU, in its capacity as the bargaining representative of QTAC employees. While not apparently produced strictly in compliance with s 178(2), nonetheless the letter of 18 August 2009 by Mr McAndrew was in response to a request by the ASU for clarification of the position in relation to Ms Jones as “the appointed Bargaining Representative of QTAC”.
  8. Seventh, QTAC contended that the reference by Mr McAndrew in his letter of 18 August 2009 to Ms Jones being QTAC’s bargaining representative was actually “ordinary language”, and that in reality:
  9. In my view there is some evidence to support this contention, for example:
  10. However in relation to this evidence I consider that:

Conclusion

  1. The circumstances surrounding the appointment of Ms Jones as QTAC’s bargaining representative are not unattended by ambiguity. However on balance, in my view it follows that Ms Jones was QTAC’s bargaining representative as from 18 August 2009.

Was Ms Jones able to participate in a process or proceedings under a workplace law or workplace instrument pursuant to section 341(1)(b)

  1. Ms Jones contends that, in the alternative, she has a workplace right pursuant to s 341(1)(b) of the Act, namely that she:
is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.

  1. It is common ground that, for Ms Jones to have a workplace right pursuant to s 341(1)(b), it would be on the basis that her circumstances satisfied s 341(1)(b) and s 341(2)(e). Specifically, if Ms Jones’ workplace right exists it arises from her ability to participate in the process of making an enterprise agreement, namely the 2009 enterprise agreement the subject of a vote by QTAC employees.
  2. QTAC has submitted that the “ability” referred to in s 341(1)(b) qualifies both “initiate” and “participate in”. I agree that this is the natural meaning of the language of the section.
  3. Further, however, QTAC submits that:
  4. In my view however, Ms Jones did have a workplace right under s 341(1)(b). I form this view on the basis that, even if Ms Jones was not the appointed bargaining representative of QTAC, her role as spokesperson for QTAC in the enterprise agreement negotiations constituted her having an ability to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument. I take this view for the following reasons.
  5. First, while it is clear that the categories of workplace rights listed in s 341(1)(a) and (b) are not intended to be mutually exclusive, and that there is a degree of overlap between the categories so that a number of workplace rights may fall within more than category (para 1371 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)), nonetheless I infer that there is a statutory purpose in providing for these separate categories in para (a) and para (b). So, for example, while a person who has been appointed a bargaining representative may have a workplace right pursuant to both s 341(1)(a) and (b), I infer that the legislature contemplated circumstances where workplace rights might arise pursuant to s 341(1)(b) which did not arise pursuant to s 341(1)(a). Otherwise s 341(1)(b) would be redundant.
  6. Second, the Macquarie Dictionary defines “able” as “1. having sufficient power, strength or qualifications”. Further the dictionary defines “to be able to” as “to have the capability or capacity to”. In the context of s 341(1)(b) “to be able to participate” connotes more than the physical capability of a person to participate in the relevant process or proceedings. Rather, in the context of s 341(1)(b) it connotes the authority or right of a person to participate in the relevant process or proceedings. To that extent I accept the submission of QTAC on this point.
  7. However third, while I consider that a person being “able to participate” equates with their “right to participate”, I do not consider “right” in this context means a right arising from the Act as submitted by QTAC. I consider that an ability or “right” to participate can arise from, for example, an authorisation given by an employer such as QTAC to an employee such as Ms Jones to be its spokesperson in enterprise agreement negotiations. Accordingly I consider that such an employee is “able to participate” in those negotiations within the meaning of s 341(1)(b).
  8. Fourth, I consider a construction restricting “able to participate” to rights arising under the Act would inappropriately narrow the meaning of s 341(1)(b). I agree with Ms Jones that the construction contended by QTAC would leave her the only person at the bargaining table without the protection of the Act, notwithstanding that she was engaged in enterprise agreement negotiations and potentially personally vulnerable to adverse action arising from that engagement. I do not consider that the Act, the objectives of which include fairness to participants in workplace relations, would intend a result where Ms Jones was not the subject of protection.
  9. Fifth, Ms Jones’ ability to participate in the negotiations arose from the request of QTAC that she do so as QTAC’s CEO. She had a right to participate because of that request. I consider that the ordinary meaning of the language of s 341(1)(b) applies to the circumstances in this case. I see nothing inconsistent with this construction of s 341(1)(b) in the fact that any permission given to Ms Jones by QTAC to participate in the enterprise agreement negotiations could be withdrawn by QTAC at any time. Had the QTAC Board determined at any time that Ms Jones should not continue in that role, she would simply have ceased being “able to participate” in the negotiations.
  10. Sixth, the construction contended by QTAC, namely that “able to” in s 341(1)(b) is referable exclusively to rights arising under the Act or other workplace laws, is not supported by construction of similar legislative provisions. In particular, I note s 341(1)(c) which provides that a person has a workplace right if he or she:
(c) is able to make a complaint or inquiry

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee – in relation to his or employment.

  1. Interestingly, para 1370 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) gives examples of where a person has a workplace right within the meaning of s 341(1)(c) because he or she “is able to” make a complaint or inquiry to a person fulfilling the description in s 341(1)(i). One example is that of an employee who approaches his union to ask for their assistance to work out whether he is being paid the correct amount by his employer. In this example the simple “ability” – or right – of a union member to approach their union for assistance is not an ability which arises pursuant to the Act. It is an ability which arises pursuant to the terms of his union membership. By analogy, and as a matter of statutory construction, it is reasonable to infer that the ability to participate in s 341(1)(b) is not similarly confined to “rights” arising from the terms of the Act, but refers to an ability or rights which can arise from arrangements beyond those conferred by the Act.
  2. Finally, I consider that Ms Jones’ act in attending meetings, having discussions and generally taking part in negotiations towards the making of the enterprise agreement with, inter alia, the ASU, constituted “participation” in those negotiations. Indeed, it would be difficult to identify a clearer example of “participation” in such negotiations.
  3. In conclusion, I find that Ms Jones did have a workplace right within the meaning of s 341(1)(a) as QTAC’s bargaining representative, and further that Ms Jones had a workplace right within the meaning of s 341(1)(b) because she was able to participate in a process or proceedings under a workplace law or workplace instrument.

2. Has QTAC taken or does QTAC propose to take adverse action against Ms Jones?

  1. I noted earlier in this judgment that s 340 of the Act prohibits adverse action against a person because, inter alia, that person has a workplace right.
  2. For the purposes of these proceedings, the relevant definition of “adverse action” in s 342(1) is as follows:
Meaning of adverse action

Item
Column 1
Adverse action is taken by...
Column 2
If...
1
An employer against an employee
The employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer

  1. Although the genesis of legislative provisions prohibiting adverse action against a person because of his or her workplace right may have been in protection of freedom of association and the right of employees to join industrial organisations (cf consideration by the Full Court in Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232 at 244-248 per Wilcox J and Finkelstein J at 282-287, and comments of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807; (2001) 108 IR 23), it is clear that s 340 of the Act extends protection much more broadly. Indeed this was recognised in para 1386 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which stated:
The consolidation of the existing specific WR Act provisions into generally applicable prohibitions means that the new provisions protect persons against a broader range of adverse action.

  1. In these proceedings it is not in dispute that Ms Jones’ claim of adverse action relates to item 1 para (b) and para (c) in the table in s 342, namely that QTAC’s actions had injured her in her employment or altered her position to her prejudice, or had threatened to achieve these results.

What is meant by “injures the employee in his or her employment” and “alters the position of the employee to the employee’s prejudice”?

  1. In the High Court decision Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 the majority at 18 observed that “injures the employee in his or her employment” covers injury of any compensable kind, and “alters the position of the employee to the employee’s prejudice” is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
  2. The term “alters the position of the employee to the employee’s prejudice” appears to refer to an intentional act directed to an individual employee or prospective employees: BHP Iron Ore Pty Ltd v Australian Workers’ Union [2000] FCA 430; (2000) 97 IR 266 at 275. Further, in Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; [2001] 107 FCR 93, where an email was sent within the employer organisation by management proposing alterations to the basis upon which redundancies would be offered to employees, the Full Court held that the employer had altered the position of the relevant employees to their prejudice even where there was no evidence that the email had been the subject of action. In that case the Full Court considered that circumstances which result in the employment of employees becoming less secure, in a real and substantial manner, than it had been previously, constitutes an alteration in their position to their prejudice: at 101.

Claims of Ms Jones

  1. Paragraphs 4, 5 and 6 of the Amended Statement of Claim contain Ms Jones’ pleading relevant to QTAC’s alleged contravention of s 340(1) of the Act. Those paragraphs are as follows:
4. In contravention of section 340(1) of the FW Act, the Respondent has taken adverse action against the Applicant in that the Respondent has injured the Applicant in her employment.

PARTICULARS

(a) The Respondent commenced a disciplinary investigation against the Applicant without reasonable or adequate cause;

(b) The Respondent commenced an investigation into the complaints against the Applicant in circumstances where the Respondent knew or ought to have known that the complaints against the Applicant were not bona fide but where (sic) made in the context of her role or responsibility and/or participation in the EA negotiations;

(c) The Respondent’s unreasonable reliance on Walter Williams’ diary notes, as forwarded to the Applicant by letter from Professor Deborah Terry dated 30 October 2009, as supporting the investigator’s finding that there is an established pattern of unreasonable treatment by the Applicant of other staff over an extended period of time;

...

...

(f) In purporting to investigate the complaints against the Applicant, the Respondent failed or refused to provide the Applicant with natural justice;

(g) The Respondent has failed or refused to fulfil its representation made to the Applicant on about 29 October 2009 that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice;

(h) The Respondent in its letter of 29 October 2009 to the Applicant required the Applicant to ‘show cause’ why she should not be subject to disciplinary action, including the termination of her employment before properly and/or adequately identifying the allegations against her and/or giving the Applicant an opportunity to respond to the allegations relied on by the Respondent;

(i) the Respondent’s refusal or failure to set aside Carol Watson’s Report dated 28 September 2009.

5. Further, or alternatively, in contravention of section 340 (1) of the FW Act, the Respondent has taken adverse action against the Applicant in that the Respondent has altered the position of the Applicant to the Applicant’s prejudice.

PARTICULARS

(a) The Applicant repeats and relies on the particulars pleaded in paragraph [4] herein.

6. Further, or alternatively, the Respondent has threatened to take adverse action, namely the termination of the Applicant’s employment, and is organising such action, against the Applicant.

PARTICULARS

(a) Letter to the Applicant from Professor Deborah Terry on behalf of the Respondent dated 29 October 2009.

  1. The adverse action pleaded by Ms Jones may be summarised as follows:
  2. I propose to consider each type of adverse action claimed, in turn.
  3. In Ms Jones’ submissions the identification of the alleged forms of adverse action and issues of causation were intertwined. In my view, particularly in light of the respective burdens of proof borne by each party, it is appropriate to first identify whether adverse action had occurred within the meaning of the Act, in respect of which Ms Jones bears the onus of proof, and then to turn to issues of causation in respect of which the burden of proof shifts to QTAC.

Commencement of the investigation

  1. Extensive submissions have been made by Ms Jones in respect of the question whether the commencement of the investigation by QTAC constituted adverse action. It is common ground that the relevant investigation was that undertaken by Ms Carol Watson following a discussion between Ms Watson and Mr McAndrew on 4 September 2009, and culminating in production of the Carol Watson Report.
  2. In my view the resolution of this issue depends on determination of the following issues raised by Ms Jones:
    1. Whether commencement of an investigation can in any event constitute adverse action.
    2. Whether the investigation occurred without reasonable or adequate cause, and/or in circumstances where QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations.

Can commencement of an investigation constitute adverse action?

  1. The question whether the commencement of an investigation constitutes adverse action was specifically considered by Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, North J in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 and Ryan J in Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340.
  2. In United Firefighters Union (2003) 198 ALR 466 charges were laid and heard against employees relating to activities including:
  3. The employees submitted that the laying of charges was conduct prohibited by s 298K(1) of the Workplace Relations Act 1996 (Cth) and sought interlocutory injunctions restraining the employer from taking action in breach of this legislation.
  4. After referring to the observations of the Full Court of the Federal Court in Community and Public Sector Union [2001] FCA 267; [2001] 107 FCR 93 at 100, Goldberg J at 491 said:
Although the laying of the charges and the hearing of them itself does not result in a permanent injury to an employee or an alteration of the employees’ position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in [the relevant legislation] ... I am satisfied that there is, nevertheless, a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.

  1. In Kimpton (1996) 65 IR 317 North J dismissed a notice of motion seeking an order that the substantive application in those proceedings be dismissed as disclosing no cause of action. In the substantive proceedings the applicants had contended, inter alia, that a requirement to respond to a letter seeking answers to a number of questions in the course of an investigation of activities of the applicants in the course of their employment constituted injury to the applicants in their employment. North J observed:
I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. (at 319)

  1. In Nixon [2008] FCA 467; (2008) 168 FCR 340 the relevant employees also sought interlocutory injunctions against the employer, claiming inter alia that the resumption of an investigation of bullying allegations against an employee constituted an injury or alteration of position against that employee, for reasons prohibited by the relevant legislation. Ryan J observed:
It was argued on behalf of the respondents that to be subject to a disciplinary investigation does not amount to an injury in employment or an alteration of the position of an employee to his or her prejudice ...

In the light of the history which I have just recounted, I consider that a serious question remains as to whether the resumption of the inquiry by Biggin and Cartwright amounts to an injury to Mullett in his employment. Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.

However, the investigation within Victoria Police of the Bullying Allegations against Mullett cannot, on the evidence as it stands, be regarded as similarly innocuous.

  1. On the facts his Honour considered that a serious question remained as to whether the resumption of the relevant inquiry into bullying allegations constituted an injury to the employee the subject of those allegations. In so finding his Honour noted that an email concerning the investigation had been sent to “all staff” of the organisation, and that no attempt had been made to resolve the complaints underlying the bullying allegations by conciliation as contemplated by the relevant legislation. His Honour also noted the position of the relevant employee and observed:
That position requires him to act as spokesman on industrial issues, like salaries and working conditions, for members of the Force generally and, perhaps, also for individual members in relation to disciplinary matters. His ability to retain the confidence of members of Victoria Police in his discharge of those functions is likely to be impaired significantly once it becomes generally known that an investigation of long standing and already attended by intense publicity has been resumed. (at 355)

  1. Later in the judgment his Honour continued:
In the light of the conclusion just reached on “injury”, it is strictly unnecessary to consider the alternative question of whether the resumption of the EDS investigation of the Bullying Allegations can amount to an alteration of Mullett’s position as an employee of Victoria Police. However, in my view, “alteration” in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties...

I am conscious that the tentative view just expressed diverges from that of Goldberg J in United Firefighters... I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantage enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores 195 CLR 1 quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis in the extract from Goldberg J’s reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely “potential”. (at 355-356)

  1. It follows that, on these authorities, commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action against that employee for the purposes of s 342, either as injury or alteration of the position of the employee.

Did the appointment of Ms Watson as external investigator in the circumstances of this case constitute adverse action in respect of Ms Jones?

  1. As a general proposition I consider that the commencement of an investigation into bullying allegations could be adverse action against someone in Ms Jones’ position within the meaning of s 342 of the Act. I form this view because:
  2. Allegations of bullying in the workplace are serious allegations. This is particularly so where the CEO is the subject of those allegations. While an investigation into allegations of bullying may be appropriate and indeed warranted in the circumstances of an individual case, this does not mean that the employee will not be “injured” or their position altered to their prejudice by the investigation. I do not agree that, as a general proposition, amenability to a disciplinary investigation is a “normal” incident of employment, even if the investigation is commenced in good faith and on a proper prima facie evidentiary basis.
  3. In this case however, Ms Jones has specifically pleaded that she has been the subject of adverse action because the investigation was commenced against her without reasonable or adequate cause, or because QTAC knew or ought to have known that the complaints against her were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations.
  4. This claim is somewhat confusing because it seeks to introduce concepts of causation into the question of whether or not adverse action has been taken, although it also apparently seeks to directly address the issues raised by Ryan J in Nixon [2008] FCA 467; (2008) 168 FCR 340. In any event however, I am satisfied that, in the circumstances of the case, the investigation was commenced in circumstances where QTAC had reasonable or adequate cause. I am not satisfied that QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations. Accordingly I do not consider that the commencement of the investigation into the complaints against Ms Jones constituted adverse action against her.
  5. I form this view for the following reasons.
  6. First, Mr McAndrew as Chair of the QTAC Board had received four separate complaints from QTAC staff complaining about bullying by Ms Jones. While two of those complaints were anonymous, the two complaints from Dr Bowes and Ms Bayley were not. In any event all four complaints contained extensive details as to events which had occurred.
  7. Second, Mr McAndrew deposed in his affidavit that after receipt of the Nicola Bowes complaint he had discussed with Ms Jones the appropriate procedure for handling a complaint made against the CEO. He also deposed that he was concerned that Ms Jones assumed that Mr Walter Williams would handle the investigation. Mr McAndrew considered this quite inappropriate (affidavit of Colin McAndrew para 40 and para 43). In my view Mr McAndrew’s concern in respect of an approach, whereby a subordinate member of staff would manage a complaint in respect of the CEO, was not surprising and was indeed well-founded.
  8. Third, the Board had resolved at its meeting of 18 August 2009 that Ms Jones would be invited to respond to Dr Bowes’ letter of complaint and that the Board would consider the matter further after that response had been provided. However Mr McAndrew gave evidence that after receipt of the additional anonymous complaints and the Danelle Bayley complaint, he concluded that he could not commit his own time to investigating a total of four complaints. In my view this was a reasonable position for Mr McAndrew to adopt. In light of Ms Jones’ senior position as CEO and the severity and detailed nature of the bullying allegations, I consider it appropriate that QTAC should commission an external person to conduct an investigation, particularly in view of the inability of the QTAC Chair to give such an investigation his personal attention.
  9. Fourth, the ASU had stated that it would refer the issue of bullying allegations to Workplace Health and Safety Queensland if no action was taken by QTAC in relation to mistreatment of staff by Ms Jones. This was, in itself, cause for concern by QTAC.
  10. Fifth, although the ASU had itself made complaints in relation to Ms Jones in correspondence to Mr McAndrew, Mr McAndrew deposed that he had treated those complaints as negotiating tactics by the union (affidavit of Colin McAndrew paras 9-12). It is clear on the evidence that it was only when formal complaints were made by members of QTAC staff that QTAC considered that investigation of allegations of bullying was warranted. The fact that the four formal allegations of bullying by staff – two signed by QTAC staff members – were communicated to Mr McAndrew via the ASU does not, in my opinion, mean that QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide. Unions have a legitimate and well-recognised role in representing and protecting their members and furthering their interests and, in that capacity, communicating with the employer (cf comments of Kitto J in Victorian Employer’s Federation v Federal Commissioner of Taxation [1957] HCA 37; (1957) 96 CLR 390). In my view it is completely reasonable that the ASU should convey formal complaints of members to the QTAC Chair, particularly in light of the prospect of fear of reprisal expressed by the four complainants.
  11. Sixth, the evidence demonstrates that the two identified complainants, Dr Bowes and Ms Bayley, were both ASU members. Indeed it is clear that Dr Bowes actively participated in industrial activities in the QTAC workplace – for example she was a member of the RDO Committee whereby staff and management participated in a process towards a version of the rostered day off which might be considered during the enterprise agreement negotiations, and she became an ASU delegate on or about 10 August 2009. However in my view it is not appropriate to draw an inference from these facts that the complaints by Dr Bowes and Ms Bayley were not bona fide, or that QTAC should have known that the complaints were not bona fide. Like non-union employees, employees who are members of a union, and employees who are active in a union, are perfectly entitled to complain of mistreatment in the workplace. Indeed, I find from the evidence of Dr Bowes and Ms Bayley that their complaints were bona fide.
  12. Seventh, I am not persuaded by Ms Jones’ submission that the appointment of Ms Jones as external investigator constituted adverse action in itself because it occurred at a time when Ms Jones continued to remain the bargaining representative of QTAC and was required to negotiate with both the ASU and Dr Bowes. The evidence before the Court indicates that: in correspondence with the ASU, QTAC continued to show strong support for Ms Jones as its bargaining representative in the enterprise agreement negotiations notwithstanding the receipt of formal complaints from QTAC staff. The fact that QTAC retained Ms Jones as its bargaining representative notwithstanding the appointment of the external investigator was, in my view, a measure of the support QTAC maintained for Ms Jones.
  13. Indeed, an alternative response by QTAC whereby QTAC terminated Ms Jones’ appointment as its bargaining representative not only would have suggested a lack of support for Ms Jones in that position, but could also have been interpreted as QTAC yielding to pressure from the ASU to remove Ms Jones because of her role in the enterprise agreement negotiations.
  14. Eighth, although Ms Jones submits that the investigation did not have a prima facie basis because the ASU had previously raised allegations of bullying against her during the 2005 certified agreement negotiations, I am not persuaded that I should draw such an inference. This is because:
  15. It follows that, in my view, Ms Jones’ claims of adverse action in para 4(a) and para (b) of the Amended Statement of Claim are not substantiated.

The show cause letter

  1. The “show cause” letter to which Ms Jones refers in para 4(h) of the Amended Statement of Claim is a letter from Professor Deborah Terry, Chair of the QTAC Board, to the solicitors for Ms Jones dated 29 October 2009, enclosing a further letter to Ms Jones (also dated 29 October 2009) describing “how QTAC intend(ed) to proceed in relation to the matter”. The letter is eight pages in length and concludes:
Summary of QTAC’s Response to Your Objection to the Report

Having given careful consideration to your criticisms of the investigator’s process, I do not believe QTAC should set aside the report. However QTAC has not decided to accept as established any of the allegations in the report at this stage. It will not do so until the following steps have been completed:

  1. QTAC has received and considered any further responses you have to the allegations,
  2. If you nominate further staff members to be interviews (sic), those interviews have been completed and QTAC has considered the outcome of those interviews.
You should also feel free to make any other comments you wish to make in relation to the investigator’s process in light of the additional context recorded above.

Allegations

Having considered the investigator’s report and your response to that report, QTAC believes there is evidence that you have acted in a way which amounts to bullying or harassment of employees. If established, QTAC believes the conduct may amount to serious misconduct or misconduct for the purposes of your employment contract, such that QTAC is in a position to terminate your employment either summarily or on notice.

The allegations are set out conveniently in the findings in the investigator’s report as clarified in this correspondence and supplemented by the matters recorded in Mr Williams’ diary entries. The diary entries (maintained by Mr Williams) contain a number of specific examples of conduct. If the events occurred in the manner recorded by Mr Williams, QTAC would consider many of them to be unacceptable. Accordingly, please respond specifically to the allegations recorded in these diary entries.

Future Steps

Would you please provide any further response to the specific allegations in the investigator’s report as well as any other information you would like QTAC to consider in making its decision by Wednesday, 4 November 2009. At the same time, please nominate any further staff members who you believe should be interviewed in order to assist QTAC in making a sound decision.

QTAC will make a decision in relation to your employment as soon as possible after receiving your response and completing the steps set out above.

...

  1. In summary QTAC submits that:
  2. I accept the submission of QTAC that the letter formed part of the process adopted by QTAC to investigate the bullying allegations against Ms Jones. Indeed, it may have been both appropriate and fair, as part of the process, for QTAC to have sent such a letter to Ms Jones. Such letters are contemplated, for example, by s 387 of the Act. Indeed the letter is not confined to the material I have set out – it includes a lengthy and detailed response to Ms Jones’ concerns regarding the investigation process. However this does not mean that a letter of this nature is not adverse action against Ms Jones within the meaning of s 342 of the Act.
  3. To paraphrase comments of McHugh J in Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 at 201-202 [89], the injury or detriment to which Ms Jones was subjected in this respect was the requirement that she respond to a “show cause” letter that might lead to the loss of her position if her answer was not regarded as acceptable. That this was a potential outcome was clear from the terms of the letter.
  4. Further, in my view an analogy can be drawn between a show cause letter such as the letter of 29 October 2009 to Ms Jones, and a written warning of a serious or major breach within the meaning of the employer’s disciplinary procedures. Both have the effect of making the employee’s continuing employment less secure, and accordingly altering the employee’s position to his or her prejudice (Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at [95], Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 631 at [137]).
  5. The terms of the show cause letter, while endeavouring to provide Ms Jones with opportunities to respond, nonetheless objectively constitute a threat to dismiss her should her answers be unsatisfactory to the QTAC Board. In my view this amounts to adverse action for the purposes of s 342 of the Act.

Unreasonable reliance on Walter Williams’ diary notes

  1. At all relevant times, Mr Walter Williams has been the Company Secretary of QTAC. In the organisational hierarchy of QTAC, he reports to Ms Jones.
  2. The relevant extracts of Mr Williams’ diary notes are annexed to his affidavit sworn 24 December 2009. This material is, inter alia, a record of Mr Williams’ views and perception of his experiences of Ms Jones in the QTAC workplace over a period of time. In general, Mr Williams’ comments in relation to Ms Jones are unfavourable. An illustration is a diary entry marked 26 February 2008 which included the following:
Alison took the BAS statement and cheque for Elizabeth to sign the cheque and when Alison pointed out that the question asked by Elizabeth the answer was right in front of her Elizabeth became agitated and proceeded to pull the whole payment request apart. Alison on returning to her room needed to be consoled.

  1. In para 4(c) of the Amended Statement of Claim Ms Jones pleads that QTAC unreasonably relied on the diary notes of Mr Williams, as supporting the finding of Carol Watson that there is an established pattern of unreasonable treatment by Ms Jones of other staff over an extended period of time. Ms Jones’ submissions in respect of reliance by QTAC on Mr Williams’ diary notes may be summarised as follows:
  2. It is not in dispute that Ms Watson interviewed Mr Williams during her investigation of the bullying allegations, or that Ms Watson relied on Mr Williams’ diary notes (TS p 684 ll 33-34). It also appears that the diary notes were forwarded to the Board by Ms Watson (TS p 384 ll 29-30).
  3. Further, in the “show cause” letter dated 29 October 2009 Professor Terry referred to examples of conduct from Mr Williams’ diary, noting that they supplemented the allegations in the Carol Watson Report. In that letter Professor Terry stated:
If the events occurred in the manner recorded by Mr Williams, QTAC would consider many of them to be unacceptable. Accordingly, please respond specifically to the allegations recorded in these diary entries.

  1. However in my view this aspect of Ms Jones’ claim is misconceived, for the following reasons.
  2. First, it is clear that, as at 29 October 2009 and irrespective of Ms Watson’s views of Mr Williams’ diary notes, QTAC had not accepted that events had occurred in the manner recorded by Mr Williams. That this is so is reflected in QTAC’s request of Ms Jones to comment on Mr Williams’ allegations. To that extent, it cannot be said that QTAC had “relied”, unreasonably or otherwise, on Mr Williams’ diary notes to the detriment of Ms Jones.
  3. Second, at best, the alleged “reliance” by QTAC on Mr Williams’ diary notes appears to be QTAC acknowledging that Mr Williams had made serious allegations about Ms Jones, and taking the fact that these allegations had been made into account in asking Ms Jones to show cause. I have already found that the “show cause” letter of 29 October 2009 constituted adverse action against Ms Jones. However, in my view the action of QTAC taking into account information in making a decision to ask Ms Jones to show cause, is not itself adverse action against Ms Jones. The process by which QTAC formed the decision to take the adverse action goes to causation and whether the adverse action was for a reason prohibited by the Act.
  4. Third, in my view QTAC’s “unreasonableness” or otherwise in relation to Mr William’s diary notes is of little relevance so far as concerns the specific issue whether adverse action had been taken against Ms Jones. I take a similar view in relation to whether or not QTAC were aware of Mr Williams’ alleged dislike of Ms Jones, and whether Mr Williams had complied with QTAC’s policies and procedures. Again, these issues may be of relevance to the questions of QTAC’s motives and causation, which are separate issues for consideration.
  5. Fourth, I am unable to see how Ms Jones has been either injured in her workplace, or been the subject of an alteration in her position to her prejudice, by a request by QTAC that she respond to the allegations in Mr Williams’ diary. It is clear that QTAC was concerned by Mr Williams’ allegations, however the letter was in the nature of a request for information by QTAC. Indeed, given that Mr Williams’ diary entries specifically concerned Ms Jones, she was the appropriate person to provide clarification to QTAC.
  6. Finally, it is difficult to see how QTAC can be said to have had knowledge of Ms Jones’ conduct as alleged by Mr Williams, and condoned that conduct. Ms Jones directed my attention to Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 at [351]. In that case, as Gillard J said:
An employer who has full knowledge of the misconduct of an employee, and who makes a decision to continue to employ the employee, cannot at a later date, unless of course other facts come to his knowledge, dismiss him summarily on the basis of the employee’s known misconduct. It is said that the employer has waived his right to dismiss the employee summarily, and thereby condones the misconduct.

  1. His Honour also referred to a discussion of relevant principles by the Privy Council in Federal Supply Co v Angehrn (1910) 103 LT 150 (PC).
  2. However in this case there is no evidence that QTAC had full knowledge of any purported misconduct of Ms Jones as alleged by Mr Williams in his diary notes but made a decision to continue her employment or otherwise ignore the misconduct.
  3. Mr Williams was subordinate to Ms Jones, and reported to her. He has no authority in respect of continuing Ms Jones’ employment. Notwithstanding that he is the QTAC Company Secretary, I am not persuaded that his views in respect of Ms Jones’ alleged misconduct can be imputed to QTAC.

Failure to provide natural justice and/or fair process in carrying out the investigation

  1. In para 4(f) and para (g) of the Amended Statement of Claim Ms Jones pleaded that she has been the subject of adverse action because, inter alia:
  2. Extensive submissions have been made by Ms Jones in respect of her claim that she has been denied natural justice and/or fair process in relation to the investigation of the bullying allegations against her.
  3. QTAC submitted that to plead a failure to provide natural justice as an example of adverse action within the meaning of s 342 of the Act is an awkward pleading, with a circular quality. This is because:
  4. It is clear from s 12 of the Act that “action” includes inaction, and for the purposes of s 342 would extend to a failure by an employer to do an act.
  5. However s 340 and s 342 of the Act entail a consideration of a legal question, namely whether intentional actions of the employer have had the effect described in s 342 for a prohibited reason. This requires an identification of the particular actions of the employer, which allegedly have, inter alia, injured the employee in his or her employment, or altered the position of the employee to the employee’s prejudice.
  6. A claim by an employee that the employer has failed to accord natural justice and/or fair process to the employee raises different issues, including consideration of whether the rules of natural justice are applicable in particular circumstances and then whether, on the facts, they have been applied. Such a claim does not sit easily with allegations of adverse action within the meaning of s 342 of the Act. One might as well, for example, make a general claim that the employer has acted in breach of the contract of employment, and that this is “adverse action” within the meaning of s 342. Such a claim would, in my view, be misconceived for the same reason.
  7. On balance, I do not think that an alleged failure by an employer to accord natural justice and/or fair process to an employee is “adverse action” within the meaning of s 342 of the Act.
  8. In any event however, I consider that even were a failure to provide natural justice potentially adverse action within the meaning of s 342, there has been no failure by QTAC to provide Ms Jones with natural justice in the circumstances of this case. I will discuss this issue in more detail later in the judgment.

Refusal or failure to set aside the Carol Watson Report

  1. It is difficult to see how a refusal or failure by QTAC to set aside the Carol Watson Report constitutes adverse action within the meaning of s 342 of the Act as pleaded in para 4(i) of the Amended Statement of Claim. I am not persuaded that the mere existence of the Carol Watson Report injures or alters the position of Ms Jones to her detriment. On the other hand, the unequivocal acceptance of the Report and action by QTAC in reliance on it could constitute adverse action. Professor Terry gave evidence at the hearing that, as at the date of the hearing, QTAC had “provisionally” accepted the Carol Watson Report, in the sense that QTAC’s legal advice was that the report was sound and there was no basis at this stage for setting it aside (TS p 350 ll 40-46, p 351 ll 1-7). The issue of the show cause letter appears to have been an act of QTAC, on the basis that QTAC considered there was substance in the Carol Watson Report. Other than this, however, at this stage it appears that QTAC has continued to seek responses from Ms Jones in relation to information and conclusions drawn in that report. In my view, seeking information from Ms Jones is not “adverse action” within the meaning of s 342.

Conclusion

  1. QTAC took adverse action against Ms Jones in the form of the “show cause” letter from Professor Terry to Ms Jones and her solicitors dated 29 October 2009. Otherwise, I do not consider that QTAC has taken adverse action against Ms Jones within the meaning of s 342 of the Act.

3. Was adverse action taken against Ms Jones because of her workplace right
Causation

  1. I have already noted that QTAC bears the burden of proof pursuant to s 361 of the Act once Ms Jones has established that she has a workplace right and that she has been the subject of adverse action for the purposes of s 340 of the Act. Section 361 provides:
Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

  1. In other words, QTAC is required to prove, on the balance of probabilities, that the reason for the adverse action was not one which would constitute a contravention of the Act. The prohibited reason need only be one of multiple reasons for the adverse action taken by the employer against the employee. This is clear from s 360 which provides:
Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

  1. Recently in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Tracey J considered the meaning of “because” in s 340 of the Act and the reference to actions “for a particular reason or with a particular intent” in s 360. In Barclay [2010] FCA 284 the applicant had contended that the inclusion of the word “because” in s 340 meant that the actor’s subjective reason for taking the prejudicial action was wholly irrelevant and not to be taken into account, and that the test was purely objective. His Honour rejected that contention on the grounds that it was inconsistent with the legislative history, relevant principles of statutory construction, and authority (at [24]). As his Honour observed, in cases decided under predecessor legislation the court proceeded on the basis that evidence of the employer’s subjective reasons for taking the impugned action was relevant in deciding whether the employer had taken the action because of the existence of one or more of the circumstances in which such action was impermissible (at [28]). This remains the position under the Act. In particular, s 360 deals with the extent to which a person’s action must be motivated by a particular reason to establish a contravention of the Act: Barclay [2010] FCA 284 at [31], para 1457 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth). I respectfully adopt the views expressed by his Honour in relation to causation within the meaning of s 340 and s 360 of the Act.

Whose reasons?

  1. In this case the employer of Ms Jones, and the person whom Ms Jones claims has taken adverse action against her contrary to the Act, is QTAC. However QTAC is a corporation. In circumstances where the employer is a corporation, the reason or reasons motivating the persons in the corporation who effectively made the decision to take the adverse action are relevant. To that extent, it is important to identify the effective decision-makers in the employer corporation, and their motivations: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605.
  2. In her submissions Ms Jones has asked the Court to draw an inference unfavourable to QTAC in light of the failure of QTAC to call all members of the QTAC Board as witnesses in these proceedings. In summary, Ms Jones submits:
  3. I note that, of the adverse actions claimed by Ms Jones in respect of this issue, only two were specifically pleaded as adverse actions in contravention of s 340(1) of the Act (Amended Statement of Claim paras 4(a), (b) and (h)) – namely the decision of 27 August 2009 to appoint an external investigator and the decision of 23 October 2009 to require Ms Jones to show cause. At best, the other alleged adverse actions (namely the decision of 8 October 2009 to vary the process of the investigation, the decision of 8 October 2009 to require Ms Jones to respond to Ms Watson’s report, the decision to ask Ms Jones to respond to allegations contained in extracts from Mr Williams’ diary, and the decision to hold a meeting of the Company scheduled for 17 November 2009) appear encompassed in the general claim of Ms Jones that QTAC had taken adverse action against her by failing to accord her natural justice.
  4. I have already found that a general claim in respect of the alleged failure to accord Ms Jones natural justice did not constitute “adverse action” within the meaning of the Act, and that, for reasons I will canvass later in this judgment, even if it did constitute “adverse action”, QTAC did not deny Ms Jones natural justice.
  5. I have also found that the commencement of the investigation as pleaded in para 4(a) and para (b) of the Amended Statement of Claim did not constitute adverse action against Ms Jones.
  6. However in the event that I am wrong in these findings, and in any event in relation to the decision of 23 October 2009 to require Ms Jones to show cause, it is appropriate as a threshold issue to consider the issue of who at QTAC made the relevant decisions. Only then is it proper for me to conclude whether or not QTAC has discharged its onus of proof under s 361.

Decision to appoint an external investigator in these proceedings

  1. I have already touched upon the background circumstances to the decision to appoint Ms Watson as the external investigator in respect of the bullying allegations. More specifically, those circumstances were as follows:
  2. In my view the proper inferences to draw from these facts are as follows.
  3. First, the articles of association of QTAC cast little light on the role of the Chair of the Board other than in respect of procedural matters (I note, for example cl 28 and cl 32). While traditionally the Chair of the Board of Directors had the same usual authority as other directors of the company (Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 584), the Chair could also be delegated additional powers by the Board. That this is the case in relation to QTAC is apparent from cl 17(1) of the QTAC articles of association (which provides, inter alia, that the affairs of QTAC shall be managed by the Board of Directors who may exercise all such powers and do all such acts and things as the company is authorised to do) and cl 17(2) (which provides that the directors may from time to time delegate any of their powers to any member or members of their number as they think fit and revoke such delegation).
  4. The role of the Chair of the Board has been the subject of review over recent years. A comprehensive review of relevant decisions may be found in the judgment of Austin J in Australian Securities and Investments Commission v Rich [2003] NSWSC 85. Notwithstanding recent developments in judicial thinking however, it does not appear that, as a general rule and without specific delegated authority, the Chair can, for example, bind the company to contracts without the sanction of the Board (Brayhead Ltd [1968] 1 QB 549 at 586, State Bank of Victoria v Parry (1990) 2 ACSR 15 at 29, cf McPherson v Dodd [2004] VSC 153 at [10]).
  5. It follows that, alone, Mr McAndrew did not have the authority to make a management decision such as the commencement of the investigation into the complaints against Ms Jones or the engagement of Ms Watson as an external investigator into those allegations. On the other hand, the Board of Directors did have that authority. The Board also had the authority to delegate making such decisions, and the management of any subsequent investigation, to Mr McAndrew.
  6. Clause 32(1) of QTAC’s articles of association provides for the proceedings of directors, including meetings. On 27 August 2009 Mr McAndrew spoke separately to each director and obtained their consent to his proposed course of action in relation to the investigation. While in recent years the courts have adopted a broad approach to what constitutes a directors’ meeting, and decisions made at such meetings (for example, Poliwka v Heven Holdings Pty Ltd (No 2) (1992) 8 ACSR 747 at 785-786 per Ipp J, Hudson Investment Group Limited v Australian Hardboards Limited [2005] NSWSC 716 at [116]- [[119], Player v Isenberg [2002] NSWCA 186 at [33]- [34]) in this case I do not consider that there was a “meeting” of directors, informal or otherwise, to either make a decision as to the commencement of the investigation, or to delegate the management of the investigation to Mr McAndrew.
  7. Having said this, however, it is clear on the evidence that even if there was no Board meeting to make a decision to commence the investigation, and even if Mr McAndrew was not specifically delegated actual authority in relation to the investigation by the Board, at the very least he had the implied authority of the directors and the Board to make arrangements for the commencement of the investigation into the bullying allegations. No suggestion has been made by Ms Jones that he did not have such authority. Until Professor Terry assumed the role of Chair of the Board of QTAC, Mr McAndrew had carriage of the investigation into the bullying allegations against Ms Jones. It is appropriate that, as an incident of his role as Chair of the QTAC Board, he should assume primary interest and responsibility on behalf of QTAC into complaints about the chief executive officer of the company. Indeed, one might ask who else, as a principle of proper corporate governance, would have been appropriate to take a leadership role on behalf of the Board and the company in circumstances where the performance of the chief executive officer had been the subject of serious allegations.
  8. It follows from this reasoning that all directors of QTAC authorised, at least impliedly, Mr McAndrew to manage the investigation into the bullying allegations at Board level, and that therefore all directors of QTAC made a decision to commence an investigation into the complaints against Ms Jones.
  9. The question then arises whether I should draw the inferences Ms Jones asks me to draw, in line with the decision in Bowling (1976) 12 ALR 605.
  10. In Bowling (1976) 12 ALR 605 the respondent was a delegate of the Vehicle Builders’ Employees’ Federation of Australia. The respondent’s employment at the South Australian works of the appellant had been terminated for his “unsatisfactory attitude to the job and to supervision” following a recommendation by the plant superintendent to a senior officer of the personnel department of the appellant. The facts demonstrated that the recommendation by the plant superintendent had been considered by the manager of the South Australia operations of the appellant, who had telephoned the appellant’s director of manufacturing in Melbourne, and that the decision to dismiss the respondent was ultimately made by the appellant’s director of manufacturing in Melbourne and director of personnel relations in Melbourne. The respondent brought an action against the appellant on the basis that he had been dismissed because he was a union delegate, which dismissal was for a reason in contravention of predecessor legislation to the Act. At the primary hearing neither of the Melbourne directors were called to give evidence.
  11. The majority of the High Court held that the appellant had not discharged its onus of proof under predecessor legislation to s 361 of the Act. As Mason J held:
(at 618) ... it is clear enough from the evidence that the effective decision to dismiss the respondent was not made by them in South Australia but by the two directors in Melbourne after they had consultation with Mr Gould, not with Mr Rosenboom ...

  1. Later Mason J said:
(at 619) In light of this evidence it is impossible to treat the directors in Melbourne as having no more than a power to veto a decision arrived at in South Australia.

The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontroverted the possibility that the respondent’s position as a shop steward was an influential, perhaps even a decisive, consideration in their minds ...

(I note that Gibbs, Stephen and Jacobs JJ concurred in the judgment of Mason J in Bowling (1976) 12 ALR 605.)

  1. In Bowling (1976) 12 ALR 605 the decision-makers – who were not called as witnesses – were clearly the Melbourne directors of the appellant company. The role of the South Australian staff of the appellant company was limited to consultation by the Melbourne directors in making their decision to dismiss the respondent.
  2. The situation before me, however, is very different from that in Bowling (1976) 12 ALR 605. While not all of the directors of QTAC gave evidence in these proceedings, nonetheless two of the directors, both of whom were Chairs of the Board at different times, did. Further, as Chair of the QTAC Board at the time of receipt of the complaints, Mr McAndrew clearly took the lead (from the Board perspective) in relation to the QTAC response to the allegations of bullying by Ms Jones. In my view, unlike in Bowling (1976) 12 ALR 605:
  3. This is not a situation where no evidence has been given by decision-makers. I do not accept that the absence of evidence from the remaining QTAC directors leaves uncontroverted the possibility that Ms Jones’ workplace rights were influential, perhaps even decisive, considerations in the minds of the directors of QTAC. In my view there is adequate evidence before me – namely that of Mr McAndrew and Professor Terry – as to the motivations of the decision-makers in QTAC to allow me to form a view as to causation in this case.

Decisions of 8 October 2009

  1. The background to events of 8 October 2009 was as follows:
I see. So you understood that you went to a board meeting on 8 October and at that board meeting was it agreed that Mr McAndrew and Professor Terry could provide the report to Ms Jones and interview her? Was that part of the investigation to your understanding?---From my recollection, they agreed that they were going to send it to her, but they actually wanted to meet with her personally, not just sort of send it to her cold, and there was discussion about whether it was a fair and reasonable thing to give her some time off in order to respond to that. So that was the process as I understood it. (TS p 611 ll 45-47, p 612 ll 1-5)

  1. The telephone conference of 8 October 2009 was not a formal meeting of the Board of Directors of QTAC as provided by cl 32 of the QTAC Articles of Association. However as I have already observed, in recent times the Courts have taken a broad approach to what constitutes a directors’ meeting, and decisions made at such meetings. So, for example, in Poliwka (1992) 8 ACSR 747 Ipp J said at 785-786:
A valid resolution of directors can be taken at an informal meeting; there must, however, at least, be a demonstrable expression of will, on the part of the directors, approving of the resolution. As was said by Sir James Bacon VC in Re Bonelli's Telegraph Co (Collie’s Claim) (1871) 12 LR Eq 246 at 258:

“If you are satisfied that the persons whose concurrence is necessary to give validity to the act did so concur, with full knowledge of all that they were doing, in my opinion the terms of the law are fully satisfied...”

See also Re Great Northern Salt and Chemical Works; Ex parte Kennedy [1890] 44 Ch D 472 at 480-1.

Moreover, while it may not be necessary for a director consciously to apply his or her mind to the fact that the decision is being taken at a meeting of directors, the concurrence with the resolution must be expressed by each director in that capacity, and for the purpose of resolving, as a director, upon affairs of the company: Re East Norfolk Tramways Co (Barber’s Case) [1877] 5 Ch D 963 at 966–7.

  1. Similarly in Swiss Screens (Australia) Pty Ltd v Burgess (1987) 11 ACLR 756, where a husband and wife were the directors of a company and decided to allot shares in the company, Bryson J held:
To my mind any event, even most fleeting, in which two directors who are married to each other and are the company’s only directors reach concurrence in taking some course in the company’s affairs can be part of their management of the business of the company, and can be described with accuracy as a meeting of the directors and as a proceeding at such a meeting. In the course of human affairs it is not to be expected that a recognisable meeting would often take place in which somebody took the chair, there was a call to order, a resolution was made, seconded, debated and voted on. What does seem to me to be essential is that they should both concur in some decision in the management of the business of the company. If they do, and the event is recorded in a minute which accurately states what they concurred in as their decision, the meeting and the minute are no less effectual because the minute is formally expressed and appears to be an account of a much more solemn event than in fact took place. (at 758)

(See also comments of Anderson J in Atkins v St Barbara Mines (1996) 22 ACSR 187.)

  1. I consider it likely in any event that the implied authority already vested in Mr McAndrew following his discussions with the other directors on or about 27 August 2009 would have allowed him to make the decisions that he and Professor Terry would directly liaise with Ms Jones and seek her response to the Carol Watson Report. However it appears that both Professor Terry, as the new Chair of the Board, and Mr McAndrew wanted to involve the Board in making these decisions (second affidavit of Deborah Terry para 22). Professor Terry was clearly keen to brief the Board as to the Carol Watson Report and prospective process – I note Professor Terry’s evidence during cross-examination as follows:
As chair of the board – I had just come in as chair of the board – it is fully appropriate to keep other board members (sic) as to what’s happening, and I am on a number of other boards and I would fully expect that any of them – any chairs of any boards that I’m on, who were in receipt of such a report – that it would be shared with the board before any further steps would be taken. I think that’s just good practice, personally, as a chair of a board, to do that. We didn’t make decisions. We simply shared the report with the remaining board members. (TS p 348 ll 17-24)

  1. While the meeting of 8 October 2009 was clearly in the nature of an opportunity for Professor Terry and Mr McAndrew to brief the other directors in accordance with proper corporate governance, it appears also to have been a Board meeting at which the Board members agreed on future process. Although not a formal meeting with minutes recording decisions, the teleconference of 8 October 2009 was clearly a meeting with decisions agreed upon by directors in their capacity as directors, and for the purpose of resolving, as directors, upon affairs of the company. Indeed in her evidence Professor Terry indicated as much (for example TS p 347 ll 7-8):
The Board authorised Mr McAndrew and me to manage the process. It was agreed that we would provide a copy of the report to Ms Jones for her consideration and response and meet with her as soon as possible. Following her response, we, in consultation with Board members, would decide how to proceed. No decision had been made at that time to consider disciplinary action. (second affidavit of Deborah Terry para 25)

  1. I consider that the decision that Mr McAndrew and Professor Terry would directly liaise with Ms Jones and seek her response to the Carol Watson Report was made by the directors of QTAC.
  2. Notwithstanding this conclusion however, I do not consider that the absence of evidence from all QTAC directors leaves uncontroverted the possibility that Ms Jones’ workplace rights were influential, perhaps even decisive, considerations in their minds. I take this view for the same reasons I have already discussed in relation to the decision of QTAC to commence the investigation. The facts in this case are distinguishable from those in Bowling (1976) 12 ALR 605. Evidence of Mr McAndrew and Professor Terry was provided both in affidavits and during the hearing as to the decisions of the directors concerning management of the investigation after 8 October 2009 (second affidavit of Deborah Terry paras 43-44, TS p 475 ll 12-18). The involvement of the other QTAC directors in respect of these decisions was, on the evidence, limited to the briefing by and discussions with Mr McAndrew and Professor Terry, in the presence of Ms Watson, and authorisation of Professor Terry and Mr McAndrew managing the investigation going forward. The failure of the other directors to give evidence is, in my view, explained. I consider that little could be gained in these circumstances by requiring their additional evidence.

Decisions of 23 October 2009 concerning the issue of the “show cause” letter and requesting Ms Jones to respond to allegations in Mr Walter Williams’ diary

  1. As I noted earlier in this judgment, the “show cause” letter to Ms Jones, which included a request of Ms Jones to respond to allegations in Mr Williams’ diary, was a letter dated 29 October 2009 from Professor Terry to Ms Jones’ solicitors, enclosing a further letter to Ms Jones (also dated 29 October 2009) describing “how QTAC intend(ed) to proceed in relation to the matter”. In that letter Professor Terry asked Ms Jones to respond to allegations of Mr Walter Williams, as found in extracts in his diary.
  2. Professor Terry deposed that she received a response by Ms Jones (through Ms Jones’ solicitors) to the Carol Watson Report on 20 October 2009, and that she then advised QTAC Board members that there would be a teleconference on 23 October 2009 to discuss the response and next steps (second affidavit of Deborah Terry para 40 and para 43). Professor Terry also gave evidence that she received advice from QTAC’s lawyers on or about 23 October 2009 to provide Mr Walter Williams’ diary notes to Ms Jones (TS p 391 ll 23-24). In evidence during the hearing Professor Terry referred to the teleconference of 23 October 2009 as a “Board meeting”.
  3. In her affidavit at para 44 Professor Terry also deposed as follows:
At this teleconference, Mr McAndrew and I were authorised to proceed as follows:

(a) The first step was for me to gain some feedback from Ms Watson in response to Ms Jones’ particular concerns with the way Ms Watson had carried out her investigative process. We needed to know whether it was inappropriate, as Ms Jones had suggested, for QTAC to take the report into account in our management of the staff complaints.

(b) Having considered that feedback, if we were of the view that it was still appropriate for QTAC to receive Ms Watson’s report and proceed on the basis of the information in it, we were to formally ask Ms Jones to respond to the allegations in the report.

  1. Further evidence was given by Professor Terry as to her discussions with her legal advisors and their role in receiving feedback from Ms Watson after delivery of the Carol Watson Report to QTAC. Professor Terry deposed that, having received further feedback from Ms Watson, she had formed a number of views including that QTAC was not in a position to discard the Carol Watson Report on the basis suggested by Ms Jones (second affidavit of Deborah Terry paras 46-48).
  2. Finally, Professor Terry gave evidence at the hearing that, other than her solicitor and Mr McAndrew, she did not tell anyone that she was sending the show cause letter to Ms Jones (TS p 431 ll 15-18). There is no evidence before the Court that Professor Terry discussed sending the show cause letter with any QTAC director other than Mr McAndrew.
  3. Mr McAndrew gave evidence under cross-examination that he had seen a draft of the show cause letter before it was sent to Ms Jones (TS p 481 l 45, p 483 l 45).
  4. In my view the appropriate inferences to draw from this evidence are as follows:
  5. As it appears that the Board did not make the decision to send the show cause letter to Ms Jones, or request Ms Jones to respond to allegations of Mr Walter Williams, the principles articulated in Bowling (1976) 12 ALR 605 with respect to calling evidence from the actual decision-makers are, in my view, irrelevant in respect of those decisions.

Decision to hold a general meeting of the members of QTAC scheduled for 17 November 2009

  1. The allegation that the decision to hold a general meeting of the members of QTAC was adverse to Ms Jones is not specifically pleaded by Ms Jones. There is evidence – both from Professor Terry and in the form of the letter from Professor Paul Greenfield dated 6 November 2009 annexed to Professor Terry’s second affidavit – that the purpose of the general meeting was to discuss the investigation and to make any decision in relation to the investigation considered appropriate by the meeting, including the discussion of the Carol Watson Report and deciding about how to proceed further (annexure DT-27 to the second affidavit of Deborah Terry para 71). It is not obvious that the action in calling a general meeting of the company for this reason was adverse to Ms Jones, in the sense of injuring her or altering her position to her prejudice. The implication which Ms Jones seeks me to draw is that, because pursuant to cl 17A(3) of the QTAC Articles of Association it is only the company in general meeting which has power to terminate her employment prior to the expiration of her contract, there was a very real threat that her employment would be terminated at that meeting. However while either dismissal or a threat of dismissal would clearly be adverse to Ms Jones within the meaning of s 342(1) of the Act there is no evidence before me that this would occur or that such a threat existed, or that there was a predetermined outcome of the meeting.
  2. Even were the decision to hold the general meeting on 17 November 2009 adverse to Ms Jones, I am not persuaded that the principles articulated in Bowling (1976) 12 ALR 605 are relevant in respect of the evidence before the Court. This is because:

Has QTAC discharged its onus of proof under section 361(1) of the Act?

  1. Summary, I consider that QTAC has discharged the onus of proof it bears under s 361(1) of the Act. I do not consider that any adverse action taken by QTAC against Ms Jones was because of a reason prohibited by the Act.
  2. As I have already noted, the evidence of Mr McAndrew and Professor Terry is sufficient to explain the reasons motivating QTAC in respect of relevant decisions in this case. From their evidence, it is clear that the only reasons motivating Mr McAndrew and Professor Terry, and through them, QTAC, in taking adverse action against Ms Jones were a concern for the organisation that Ms Jones had been mistreating staff members, a belief that it was essential that action be taken by QTAC to investigate such allegations, and a wish to ensure that any investigation of Ms Jones be conducted with proper process including Ms Jones being given a reasonable opportunity to present her side of the story.
  3. I form these views for the following reasons.

Staff complaints

  1. It is clear that the ASU made written claims of inappropriate conduct by Ms Jones in her conduct of the QTAC enterprise agreement negotiations, and inappropriate conduct in the workplace towards QTAC staff by Ms Jones. I refer in particular to:
  2. However, critically, between 16 and 19 August 2009 Mr McAndrew also received four written complaints from QTAC staff alleging bullying by Ms Jones. These complaints were:
  3. The formal complaint by Dr Bowes was three pages in length, and referred, in considerable detail, to an incident which had taken place two days prior to the complaint involving herself and Ms Jones, and following which Dr Bowes said she was distressed and crying. It concludes:
I felt unsafe in a place that I had previously felt happy and confident.

  1. The formal complaint by Ms Bayley was two pages in length, and detailed as to events and dates. It commences:
I wish to bring to your attention the very stressful, anxious, threatening and inappropriate situations I have experienced whilst employed at Queensland Tertiary Admissions Centre.

  1. The letter refers, in summary, to the inappropriate and intimidating conduct of Ms Jones in the workplace on 26 March 2009, and the fact that Ms Bayley considered that her experience was not isolated.
  2. The first anonymous complaint was one and half pages in length, and outlined the alleged treatment of a former QTAC staff member by Ms Jones. The rationale for the anonymity was expressed as follows:
I have written this anonymously as I fear the wrath and the expectation of reprisal by the CEO and do not wish to lose my job.

  1. The second anonymous complaint was one page in length, and referred to Ms Jones as “a manipulative, violent, abusive, threatening workplace bully” who is “constantly intimidating and humiliating employees”.
  2. During cross-examination by Mr Spry, Mr McAndrew said:
Now, you said that the first two letters, you put them to one side because you did not think there was much to them, just the union tactics; is that correct?---Mm.

And on 19 August, you receive two anonymous complaints, and a complaint of Danielle Bayley with an allegation that due to Ms Jones’ reaction to Nicola Bowes’ complaint, staff were too scared to go through appropriate channels at QTAC but, you see, this email with the attachments to it as part of the very tactics that you had been ascribing to the ASU in respect of their earlier correspondence?---My view of the situation started to change at this point, because I now had four complaints essentially, from staff – two of them anonymous, but nevertheless four complaints.

And were you also – were your views changing because of the pressure that was coming from the ASU?---Not particularly. I was much more concerned about the complaints from the staff.

And - - -?---And I was exercised about what I was going to do about it – what I was going to do about those.

And you will see at CM22 at page 100, there is Ms Jones’ response to you, Dr Bowes’ complaint - - -?---Yes.

- - - and also addressing matters raised by the union in their correspondence that you had provided to her. Did you read Ms Jones’ response?---I did.

And having read it, did you accept her response to Dr Bowes’ complaint?---I did not form a view about it, but it was, if you like, a classic two versions of – two different versions of the same incident. I did not know and I do not know Dr Bowes, so when I asked the board or proposed to the board that the complaint from Nicola Bowes be handled by asking Ms Jones to respond to it, I was thinking at that stage that I might be able to deal with the matter, if it was a single complaint from a staff member, and I thought that I might be able to resolve it myself one way or another.

And after you have received it, you said, “It is one person’s word against another”; what steps did you take yourself to attempt to resolve it? Did you discuss the matter with Dr Bowes?---Well, at that stage, I had three more complaints come in - - -

From the ASU?---From staff via the ASU, and I was beginning to try to work out what steps I should take to deal with those because I was – as the Chair of the board I had been prepared to think about committing my time to dealing with one complaint, but I certainly was not about to commit my time to dealing with four. (TS p 450 ll 12-46, p 451 ll 1-4)

  1. In his affidavit Mr McAndrew also deposed in summary that:
  2. I consider Mr McAndrew a credible witness. I accept that his evidence that, in summary:
  3. I also accept Mr McAndrew’s evidence that, given Ms Jones’ position as CEO, he did not consider an internal investigation by a subordinate staff member was appropriate, and further that the number of complaints was such that he himself could not deal with them.

Workplace Health and Safety

  1. It is not in dispute that a failure by an organisation to deal with workplace bullying may lead to breaches of workplace health and safety laws and potential prosecution of the organisation by Workplace Health and Safety authorities. Such an outcome was, for example, adverted to in Nixon [2008] FCA 467; (2008) 168 FCR 340.
  2. It is clear from evidence given by both Mr McAndrew and Professor Terry that they were aware of QTAC’s obligations under workplace health and safety laws, and that the prospect of QTAC breaching such provisions caused them concern (for example TS p 455 ll 38-42, p 330 ll 4-8, p 395 ll 44-45, and first affidavit of Deborah Terry sworn 18 November 2009 para 31). In my view this evidence of Mr McAndrew and Professor Terry is consistent with a finding that the commencement of the investigation of the bullying allegations concerning Ms Jones was motivated by concern for QTAC and its staff, and not at all related to any workplace rights of Ms Jones.

Role of the ASU

  1. In this case it is clear that the ASU was pressuring the Chair of QTAC to both remove Ms Jones as QTAC’s bargaining representative and also to deal with claimed bullying by Ms Jones. Indeed as Mr McAndrew deposed in his affidavit, the correspondence from the ASU “mixed” the issue of Ms Jones’ role as QTAC’s bargaining representative and the issue of her treatment of the staff (affidavit of Colin McAndrew para 77). However Mr McAndrew also deposed:
My position, and the Board’s position, was that these were separate issues which needed to be dealt with separately. (para 77)

  1. Overall, in relation to the adverse action taken by QTAC against Ms Jones, I find that the view of the ASU taken by Mr McAndrew and Professor Terry, and through them QTAC, can be summarised as follows:
  2. In my view any hostility of the ASU towards Ms Jones because of her role as the QTAC bargaining representative, or because of her participation in the enterprise agreement negotiations, did not motivate QTAC in actions it took.
  3. That this is so is clear from, for example:
  4. I note that, at various times during the investigation process and after the Carol Watson Report had been provided to the QTAC Chair, Mr McAndrew and Professor Terry had communicated with the ASU. So, for example:
  5. In relation to this correspondence however:
My general approach to unions is to tell them as little as possible, for the most part, unless I really have to. (TS p 456 ll 30-31)

  1. Further, it is not in dispute that Ms Watson spoke with Mr Aaron McLachlan of the ASU in the course of her investigations. Evidence of Mr McAndrew, which I accept as credible, was that he had advised Ms Watson that she should speak to a representative of the ASU, because Mr McAndrew thought it was important that she understood exactly what it was that the ASU alleged (affidavit of Colin McAndrew para 102). In my view this was a reasonable approach. The ASU had initially received the complaints of the two identified and two unidentified QTAC staff members. It had forwarded those complaints to the QTAC Chair. It was possible that the ASU had further information to provide to the investigator in respect of the bullying allegations. In my view Mr McAndrew’s advice to Ms Watson to speak to the ASU representative is in no way suggestive of action being taken against Ms Jones by QTAC because the ASU were opposed to her remaining the QTAC bargaining representative.
  2. In her letter of 29 October 2009 to Ms Jones, Professor Terry wrote as follows:
Relevance of the ASU Correspondence to QTAC

Your lawyers have suggested that the allegations against you are false and/or malicious, and have been orchestrated by the ASU as a result of you acting as QTAC’s negotiating representative.

There is no doubt that the ASU has been active in bringing allegations to the attention of QTAC, and we accept that the ASU, on behalf of some at least of its members, has embarked on a campaign for action to be taken against you. Given the recent history in relation to the EBA negotiations, I can understand your concern about the ASU’s motivations and actions. However I can give you the following assurances:

  1. Although QTAC recognises the ASU’s right to bring forward grievances or concerns on behalf of its members, and is required to investigate and deal with grievances or complaints of substance from any source, it will deal with the allegations in an objective, factually based manner uninfluenced by the ASU’s motivations, whatever they may be.
  2. Apart from the specific incidents which are the subject of the investigator’s report and are referred to in this letter, QTAC has no concerns in relation to your conduct of the negotiations on QTAC’s behalf, and, to the extent the ASU has, now or in the past, complained about your conduct in those negotiations, those allegations are not accepted or taken into account.
  1. In my view the comments of Professor Terry in para (a) and para (b) accurately reflect the absence of relevance of Ms Jones’ workplace rights in respect of action taken by QTAC.

Appointment of Ms Carol Watson as external investigator

  1. Mr Spry on behalf of Ms Jones directed the attention of the Court to the email from Mr Aaron McLachlan to Mr McAndrew, dated 19 August 2009, attaching the complaint from Ms Danelle Bayley and the two anonymous complaints. In that email, Mr McLachlan wrote, inter alia:
Please find attached three more formal complaints which our members have asked us to forward to you, as they are afraid to raise these issues locally. Our advice was for these complaints to go through appropriate channels at QTAC, but due to Ms Jones reaction to Nicola Bowes complaint, staff are too scared to do this.

  1. Mr Spry submitted that, in summary, the haste with which Mr McAndrew appointed Ms Watson as external investigator after receipt of Mr McLachlan’s email, without requiring the ASU to state specifically what it meant by “Ms Jones’ reaction” to Dr Bowes’ complaint, suggests that the conduct of Mr McAndrew and the QTAC Board was due to pressure from the ASU because of Ms Jones’ status as the QTAC bargaining representative and/or her participation in the enterprise agreement negotiations.
  2. In my view no such inference can be drawn. Rather, the evidence before me suggests that:
  3. In my view, Ms Jones’ role as QTAC bargaining representative and her participation in the enterprise agreement negotiations were simply irrelevant to the actions taken by Mr McAndrew with the concurrence of the QTAC Board. While I note Ms Watson’s comment to Mr McAndrew on 2 September 2009, shortly after her appointment, wherein she wrote “...I wanted to set up a time with the ASU asap to take some pressure off...”, as I have already discussed I consider that this comment should be considered:

“Show cause” letter

  1. As I observed earlier in this judgment Professor Terry wrote to the solicitors for Ms Jones on 29 October 2009 enclosing a further letter to Ms Jones. In the letter to the solicitors, Professor Terry wrote “The letter to your client describes how QTAC intends to proceed in relation to the matter”. The letter followed a detailed letter from Ms Jones’ solicitors to Professor Terry of 26 October 2009 which included a very detailed and lengthy response on behalf of Ms Jones to the Carol Watson Report in which, inter alia, Ms Jones:
  2. In her letter of 29 October 2009 Professor Terry expressed QTAC’s belief that there was evidence that Ms Jones had acted in a way which amounted to bullying or harassment of employees which, if established, would amount to serious misconduct or misconduct for the purposes of Ms Jones’ employment contract. However the letter, eight pages in length, was also a careful and detailed response to the letter from Ms Jones’ solicitors of 20 October 2009. Professor Terry explained that the purpose of the letter was:

(a) to advise Ms Jones of steps QTAC had taken to clarify some of the issues Ms Jones had raised and to explain QTAC’s position in relation to the Carol Watson Report in light of those steps;

(b) to advise Ms Jones that, notwithstanding Ms Jones’ objection to the investigation process and to the Carol Watson Report, QTAC believed that the report had identified evidence of conduct and behaviour by Ms Jones which, if established, might justify disciplinary action including termination of employment; and

(c) to give Ms Jones a reasonable opportunity to understand the allegations and to respond to them before any decision was made by QTAC in relation to Ms Jones’ employment.

  1. I am satisfied that the reason the letter of 29 October 2009 was sent to Ms Jones by Professor Terry was not prohibited by the Act. Rather, the letter was sent because:
    1. Through her solicitors, Ms Jones had made serious allegations as to the integrity of the investigation process, including the probity of the Carol Watson Report. It is clear from the letter of 29 October 2009 that Professor Terry sought to answer those allegations.
    2. Professor Terry and QTAC were clearly concerned to ensure that the investigation of the bullying allegations be undertaken with proper process. From the perspective of QTAC it appears that this letter was a step in that process.
    3. Professor Terry and Mr McAndrew had received the Carol Watson Report on 11 October 2009. That report made serious findings with respect to Ms Jones and her interaction with QTAC staff, including a finding that the perception of staff was that Ms Jones was, in fact, a bully. Prima facie, the material in the Carol Watson Report constituted evidence of misconduct or serious misconduct by Ms Jones, supporting a show cause letter from the QTAC Chair. It appears from the evidence and on the face of the letter that QTAC believed it was entitled to have regard to the Carol Watson Report in deciding whether Ms Jones should be asked to respond to the allegations in the report.
    4. Professor Terry had also seen the diary entries of Mr Walter Williams, the company secretary of QTAC, which detailed numerous examples of inappropriate conduct by Ms Jones in the workplace. Professor Terry wanted Ms Jones’ response to those examples in order to evaluate their probity.
    5. Professor Terry gave evidence, which I accept, that she had written the letter with the benefit of legal advice, including subsequent to a meeting between one of her lawyers and Ms Watson to address a number of issues that had been raised in relation to the report (TS pp 332-333). I draw the inference from this evidence that Professor Terry believed that, partly as a result of those discussions, the Carol Watson Report was sound in its findings, and that QTAC was within its rights to write the letter of 29 October 2009.

Conclusion

  1. I do not believe that, in taking action in response to allegations of bullying by Ms Jones, QTAC was bowing to pressure from the ASU in relation to Ms Jones’ role in the enterprise agreement negotiations.
  2. Further, I consider that QTAC’s actions were in no way related to any workplace rights of Ms Jones. I consider that Ms Jones’ role as bargaining representative, and her participation in enterprise agreement negotiations, were completely irrelevant to QTAC’s reasons for the actions it took.
  3. It follows from this consideration that Ms Jones has not substantiated her claims against QTAC pursuant to s 340 of the Act.

THE BREACH OF CONTRACT CAUSE OF ACTION

  1. Ms Jones’ breach of contract cause of action is found in para 12A and para 12B of the Amended Statement of Claim, which read as follows:
12A. The employment contract pleaded in paragraph 2(c) herein was varied on or about 29 October 2009 to include an express term that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice.

PARTICULARS

Letter to the Applicant from Professor Terry on behalf of the Respondent dated 29 October 2009.

12B. In breach of the term pleaded in paragraph 12A herein, the Respondent has failed or refused to provide the Applicant with a fair process and/or to accord the Applicant natural justice.

PARTICULARS

(a) The Respondent’s reliance on Walter Williams’ diary notes;

(b) The Respondent’s reliance on Walter Williams’ diary notes from about September 2009 notwithstanding that the Respondent knew or had constructive knowledge of the allegations contained therein by virtue of Walter Williams’ position as the Respondent’s Company Secretary;

(c) The Respondent’s failure or refusal to set aside Carol Watson’s report dated 28 September 2009.

1. Was Ms Jones’ employment contract varied by QTAC’s letter to Ms Jones of 29 October 2009?

  1. It is common ground that a copy of Ms Jones’ employment contract is annexed to her affidavit of 16 November 2009. Importantly, cl 20.4 of the contract reads as follows:
20.4 Variation and entire agreement

The terms and conditions set out in this document may only be varied, replaced or terminated by agreement in writing signed by yourself and an authorised representative of QTAC.

These terms and conditions will continue to govern your employment with QTAC despite any changes from time to time to your position, duties and responsibilities, remuneration, working hours or employment location, unless otherwise agreed in writing.

The terms and conditions set out in this document embody the entire understanding of the parties in relation to your employment by QTAC. All previous negotiations, representations or agreements are superseded by this document.

  1. Further, as I observed in the interlocutory judgment:
  2. In their letter of 20 October 2009 to QTAC, Ms Jones’ solicitors wrote:
As QTAC has determined to deal with the allegations against our client by way of an investigation process, QTAC has, by its own conduct, and which our client can imply as her contractual right, determined that our client will be afforded natural justice and procedural fairness during the course of the investigation and any subsequent disciplinary action (if such action is in fact deemed necessary).

  1. In her letter of 29 October 2009, so far as relevant Professor Terry replied as follows:
The letter also refers to your assumption that you will be provided with natural justice. QTAC does intend to do so. Irrespective of the terms of your contract, it is QTAC’s intention to ensure that no decision is made in relation to your employment without a fair process, including an opportunity for you to respond both to the investigation report and to allegations which arise from the report.

  1. The question arises whether, notwithstanding cl 20.4 of Ms Jones’ contract, the contract was varied by Professor Terry’s letter of 29 October 2009.
  2. In my view it was not.
  3. First, it is clear that, in her letter of 29 October 2009, Professor Terry was explaining the approach QTAC intended to take to the investigation of the bullying allegations, and to confirm that QTAC intended to treat Ms Jones fairly. In my view it is possible for an employer to give an assurance to an employee that they would be treated fairly without such assurance becoming part of the employment contract.
  4. Second, it is clear that Professor Terry did not intend that her correspondence would constitute a variation of Ms Jones’ existing employment contract. I note Professor Terry’s use of the words “Irrespective of the terms of your contract”. In my view these words support the conclusion that Professor Terry’s assurance that QTAC intended to treat Ms Jones fairly was simply a reference to QTAC’s intention, and not intended to impact on the terms of her contract.
  5. Third, there is no evidence that, even if QTAC had offered in writing to amend Ms Jones’ contract, Ms Jones had accepted that offer so as to constitute an agreement.
  6. Finally, there is no evidence that Ms Jones had provided any fresh consideration to support such a variation to the principal contract: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 471, Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; [2008] 238 CLR 570 at 586-587.

2. Terms of any variation

  1. If, however, I am wrong in finding that Professor Terry’s letter of 29 October 2009 did not vary Ms Jones’ contract, the terms of any variation appear to be as set out in Professor Terry’s letter, namely that no decision would be made by QTAC in relation to Ms Jones’ employment without a fair process and natural justice, including an opportunity for her to respond both to the Carol Watson Report and to allegations which arise from the report. Although in my view the contract was not amended to incorporate such a term I shall now turn to consider whether, if the contract had been so varied, QTAC has acted in breach.

3. Did QTAC act in breach of a term that QTAC would accord Ms Jones natural justice/procedural fairness including an opportunity for Ms Jones to respond?

  1. The concepts of natural justice and procedural fairness appear interchangeable in Australian law. I note in particular the discussion by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583-585. In Halsbury’s Laws of Australia (Butterworths 1999) Vol 1(2) at [10-1868] the key principles are usefully summarised as:
  2. In substance, Ms Jones contends that she has been denied natural justice because of a breach of two of these rules namely that she has not been given an adequate opportunity to present her case, and the investigator, Ms Watson, was biased against her. In summary, this denial of natural justice or procedural fairness was because of the following:
    1. Ms Watson did not inform Ms Jones of allegations that Ms Jones created a “culture of fear” in the workplace, nor put such allegations to her to enable her to respond, nor ask Ms Jones to nominate witnesses who could be interviewed by Ms Watson in relation to such allegations.
    2. Ms Watson did not interview three witnesses nominated by Ms Jones – namely Ms Tineka Suto, Ms Katharine Martyn, and Ms Susan Dielemans – whereas she interviewed all witnesses suggested by the ASU. This demonstrates apparent bias on the part of Ms Watson.
    3. Ms Watson did not interview one of the senior managers, Ms Keene, notwithstanding that she could have done so when Ms Keene returned from leave.
    4. Ms Watson’s report erroneously conveyed the impression that Ms Jones did not have a good relationship with her managers, notwithstanding that three of the four managers told Ms Watson that their relationship with Ms Jones was positive. Ms Watson relied too heavily on views of Mr Walter Williams.
    5. Other than the four managers, the persons interviewed by Ms Watson were strongly weighted in favour of the ASU. Of the remaining fourteen people interviewed, eleven were either employed by the ASU, nominated by the ASU as witnesses, delegates of the ASU or had appointed the ASU as their bargaining representative.
    6. Because Ms Watson had relied on Mr Walter Williams’ diary notes in preparing the Carol Watson Report it was unreasonable of QTAC to rely on those notes further. In any event, Mr Williams’ notes are not reliable, and the fact that Mr Williams had earlier made no complaints in relation to the alleged conduct of Ms Jones suggests that he had condoned it.
    7. Notwithstanding the fact that the minutes of the meeting of 4 August 2009 (which Dr Bowes had attended without Ms Jones’ permission) actually supported a finding that Dr Bowes had not personally apologised to Ms Jones, Ms Watson has chosen to read them against Ms Jones. This demonstrates bias by Ms Watson against Ms Jones.
    8. The Board considered the Carol Watson Report, asked Ms Watson questions in relation to its contents, and decided to continue the investigation process (with a variation from the original process where Ms Watson would conduct the investigation) at a time when Ms Jones had not seen the report, including its recommendations, nor had an opportunity to respond to matters in the report including Mr Walter Williams’ diary notes.
  3. In my view however, even if a requirement for natural justice and procedural fairness (including an opportunity to respond) had become a term of Ms Jones’ contract following Professor Terry’s letter of 29 October 2009, I am satisfied that QTAC is not in breach of that term. Indeed, in my view, QTAC went to considerable and painstaking lengths to consult Ms Jones, to ensure that the process of the investigation was fair including providing her with relevant material, and to afford her every opportunity to respond to the serious allegations against her. I form this view for the following reasons.

External investigation

  1. First, as I have stated already numerous times in this judgment, the Chair of QTAC was confronted with four formal staff complaints concerning bullying allegations by Ms Jones on top of broad allegations by the ASU, and statements (indeed, threats) by the ASU to report QTAC to the workplace health and safety authorities if nothing was done by QTAC to investigate. For reasons I have already given, it was reasonable in those circumstances that QTAC appoint an external investigator to investigate the allegations.

Bias by investigator

  1. Second, as a general proposition I am not persuaded that Ms Carol Watson was biased against Ms Jones as Ms Jones has claimed:

Culture of fear/climate of fear allegations

  1. Third, the issue whether Ms Watson specifically told Ms Jones that she was investigating an allegation that Ms Jones had created a “culture of fear” in the QTAC workplace was the subject of considerable dispute. Mr McAndrew gave evidence that he had coined the expression “culture of fear” in a conversation with Ms Watson, as a short-hand description of the allegations of the ASU in its correspondence with him (TS p 458 ll 40-45). Ms Watson gave evidence that Mr McLachlan had used the phrase “climate of fear” in his conversation with her (TS p 589 ll 35-36), and did not mention Mr McAndrew’s use of the expression to her.
  2. Ms Jones claimed that Ms Watson had never put to her the allegation that there was a “culture of fear” in the QTAC workplace. In summary, Ms Jones’ evidence was that:
  3. Ms Jones also submits that Ms Watson could not have put to her the “culture/climate of fear” allegation at the interview with her because, on Ms Watson’s own evidence, the expression was used by Mr McLachlan and Ms Watson spoke with Mr McLachlan after Ms Watson spoke with Ms Jones.
  4. In my view Ms Jones was a witness who endeavoured to answer questions truthfully. However on balance I consider it more likely than not that Ms Watson did put the “culture/climate of fear” allegation to Ms Jones during the course of the interview between Ms Watson and Ms Jones. I form this view for the following reasons.
  5. I consider Ms Watson was also a witness of credit, and Ms Watson was emphatic that she had put to Ms Jones that Ms Watson was also investigating the issue of a culture of fear at QTAC (TS p 595 ll 46-47, p 596 ll 1-3). I note in particular Ms Watson’s email to Ms Jones dated & October 2009 wherein Ms Watson referred to their discussion and Ms Watson’s notes of that discussion (annexure ELJ39 to the supplementary affidavit of Elizabeth Jones sworn 18 December 2009).
  6. On the evidence, it may be that both Colin McAndrew and Aaron McLachlan had used the phrase “culture of fear” or a derivative thereof to Ms Watson. Although Ms Jones disputes this, I accept Ms Watson’s comment that the words “climate of fear” and “culture of fear” are ordinary in-use words in relation to workplace management. Further, although Ms Watson’s evidence was that the words “climate of fear” had been used to her by Aaron McLachlan, I consider it likely that Mr McAndrew had also earlier used similar words to her in conversation, irrespective whether Ms Watson recalled that aspect of the conversation.
  7. Ms Jones was aware of the nature of the ASU allegations which were summarised by both Mr McAndrew and Mr McLachlan as the “culture/climate of fear”. It is not in dispute that Colin McAndrew had forwarded Ms Jones the ASU letter of 7 August 2009, and the ASU letter of 14 August 2009 attaching the four formal staff complaints. In her letter of 21 August 2009 to Colin McAndrew, Ms Jones noted the ASU’s allegation that she had treated a number of employees inappropriately, and that the ASU wanted QTAC to commence an independent investigation into her “behaviour and professionalism”. In light of this, it would have been surprising if Ms Watson, in interviewing Ms Jones, had not asked her about broader allegations of a climate of fear at the QTAC workplace. I note that Ms Watson gave evidence that Ms Jones did not appear surprised when Ms Watson raised the issue of the alleged climate of fear in their interview, and that Ms Watson had assumed that this lack of surprise derived from the fact that Ms Jones was already aware of those allegations (TS p 597 ll 21-25). In my view Ms Watson’s evidence is plausible.
  8. Ms Jones also knew that, in the immediate aftermath of the receipt by Mr McAndrew of the Nicola Bowes complaint, no steps had been taken by the Board or Mr McAndrew to investigate, whether by external investigator or otherwise, that complaint. However by the time that Ms Watson was appointed by Mr McAndrew, there had been a total of four formal complaints about Ms Jones by staff, including the specific complaint by Danelle Bayley, as well as general allegations of bullying by the ASU. Clearly, the environment in which Ms Watson was appointed investigator was such that there were multiple complaints against Ms Jones. Ms Jones was aware of this environment. In these circumstances I do not accept that Ms Jones assumed Ms Watson’s brief was limited to the investigation of the Nicola Bowes complaint. On balance I consider that Ms Jones’ emails to Ms Watson of 11 September 2009 and 7 October 2009 (annexures ELJ33 and ELJ38 to the supplementary affidavit of Ms Jones sworn 18 December 2009), in which Ms Jones indicated that her understanding of the scope of the investigation was limited to the Nicola Bowes complaint, are of little value in the context of these proceedings, and indeed appear both self-serving and deliberate.
  9. However even if Ms Watson had not specifically advised Ms Jones that she was investigating this broader allegation, I consider that any concern regarding natural justice has been rectified in the process subsequently undertaken. Clearly, Ms Jones has comprehensively responded to the allegations of “culture/climate of fear” in her various responses with free access to the relevant material.
  10. I note that there is also some dispute as to whether Ms Jones had been asked to nominate for interview:
  11. Mr McAndrew deposed that he had told Ms Watson that she should ask Ms Jones who should be involved in the investigation (affidavit of Colin McAndrew para 102).
  12. On balance, for the reasons I have already given, I prefer Ms Watson’s version of who Ms Jones was asked to nominate for interview.

Failure to interview witnesses

  1. Fourth, I am not satisfied that the apparent failure of Ms Watson to interview four of the witnesses nominated by Ms Jones (namely Ms Tineka Suto, Ms Katharine Martyn, Ms Susan Dielemans and Ms Dianne Keene), constituted a denial of natural justice or procedural fairness to Ms Jones. This is because:
  2. In any event I note that, in her letter of 29 October 2009, Professor Terry invited Ms Jones to nominate any further staff members Ms Jones believed should be interviewed in order to assist QTAC in making a sound decision. In their letter of 11 November 2009, Ms Jones’ solicitors stated that Ms Jones had a list of interviewees to address specific allegations against her and witnesses to events alleged by Mr Williams, however Ms Jones preferred to keep that list confidential until she was assured by the QTAC Board that due process of the investigation would occur.
  3. I consider that any complaint by Ms Jones concerning the failure of Ms Watson to interview Ms Suto, Ms Martyn, Ms Dielemans or Ms Keene was rectified by Professor Terry’s offer of 29 October 2009.

Diary notes of Mr Walter Williams

  1. Fifth, Ms Jones claimed that Ms Watson relied too heavily on the views of Mr Walter Williams notwithstanding that three of the four managers told Ms Watson that their relationship with Ms Jones was positive. However this claim is not accurate. Ms Watson gave evidence that she gave an “enormous amount of weight” to information supplied by Mr Richard Armstrong, one of the four QTAC managers. According to Ms Watson, Mr Armstrong told her that in recent times he had had a good relationship with Ms Jones, but he had also said:
Whatever is being said about Elizabeth and her behaviour, I can believe it because I experienced it. I went into almost breakdown territory. I paid for my own quite in-depth psychological counselling. It cost a lot of money. I’m really pleased that I've made the transition. I now let things run over me. But whatever people are saying, I assure you she is capable of it. (TS p 698 ll 25-29)

  1. I accept Ms Watson’s evidence that she relied to a significant degree on information provided by Mr Armstrong, and accordingly not “too heavily” on Mr Williams’ views.
  2. Further, in relation to Mr Walter Williams’ diary notes, I consider that the interview of Mr Walter Williams by Ms Watson and her reference to his diary notes did not preclude QTAC from subsequently asking Ms Jones to respond to the claims in those notes. As I have already observed, Mr Williams is the company secretary of QTAC. This is a senior position in that organisation. To that extent his views must invariably be of interest to the Board. In any event QTAC has asked Ms Jones to comment on those diary notes. The obvious inference for me to draw from that course of action is that, notwithstanding Mr Williams’ seniority in QTAC, QTAC has not unreservedly accepted Mr Williams’ version of events, and seeks Ms Jones’ views.
  3. I do not consider that QTAC has “relied” on those diary notes as claimed by Ms Jones – indeed no decision has been made by QTAC, in reliance on those notes or otherwise. QTAC has properly asked Ms Jones to comment on the diary notes. The fact that Ms Jones may consider such diary notes objectionable or unreliable does not mean that, in asking her to comment on them, QTAC has acted without according Ms Jones natural justice.

Nicola Bowes’ apology

  1. Sixth, much hearing time was spent on the question whether, in light of what appears to have been Dr Bowes’ deliberate disobedience of a direction by Ms Jones not to attend the meeting of 4 August 2009, Dr Bowes had or had not personally apologised to Ms Jones at that meeting for attending the meeting (as distinct from making a general apology to the meeting room or Dr Bowes’ manager).
  2. It is common ground that Ms Jones reprimanded Dr Bowes for her actions on the day following that meeting. However in her report, Ms Watson considered that Dr Bowes’ allegation of inappropriate behaviour by Ms Jones, in the form of aggressive and intimidating behaviour by Ms Jones to Dr Bowes on 5 August 2009 during the course of that reprimand, was substantiated.
  3. Ms Jones claims that the minutes of that meeting do not support such a conclusion, and that Ms Watson’s conclusions demonstrate bias against Ms Jones. In my view however, an inference of bias in Ms Watson against Ms Jones for that reason cannot be drawn. This is because:
  4. I am not persuaded that Ms Watson’s findings were other than open on the material before her, and to which she referred in her report. I can identify no bias in Ms Watson. Again, the fact that Ms Jones may object to Ms Watson’s conclusions does not, in my view, suggest bias by Ms Watson or a denial of natural justice to Ms Jones.

The QTAC Board and the Carol Watson Report

  1. Seventh, I can identify no unfair treatment of Ms Jones in respect of the Board considering the Carol Watson Report, asking Ms Watson questions as to its contents, deciding to vary the process of the investigation such that Professor Terry and Mr McAndrew would speak personally with Ms Jones, and deciding to continue the investigation process at a time when Ms Jones had not seen the report.
  2. I have already stated that it is clear on the evidence that, after receipt of the Carol Watson Report, as soon as possible Professor Terry wanted the view of the Board as to steps she and Mr McAndrew should take in respect of the investigation. The Board teleconference of 8 October 2009 was, in my view, a proper opportunity for the other members of the QTAC Board to discuss the report and ask Ms Watson questions before the process continued.
  3. The Board decided that Professor Terry and Mr McAndrew would speak personally with Ms Jones, taking the investigation out of Ms Watson’s hands. I see no inherent unfairness or absence of natural justice in such an approach. Indeed it is difficult to identify Ms Jones’ objection to this development in light of her strenuous objections to Ms Watson’s findings and alleged attitude towards Ms Jones.
  4. Further, on 12 October 2009, Professor Terry and Mr McAndrew provided Ms Jones with a copy of the Carol Watson Report without Ms Watson’s recommendations. I see no inherent unfairness or absence of natural justice in that action, given that:

Ongoing dialogue

  1. Eighth, there has been ongoing dialogue between QTAC and Ms Jones, with QTAC making, in my view, every opportunity for Ms Jones to present her response to serious allegations. I note, for example that when Ms Jones’ solicitors wrote to Professor Terry on 30 October 2009 referring to the extensive materials forwarded by QTAC to Ms Jones, the fact that QTAC had sought a response from Ms Jones within a short time frame, and the fact that Ms Jones was in the course of preparing substantial Board papers for the QTAC Board meeting, Professor Terry responded on the same day:
  2. Further, in her letter of 29 October 2009 to Ms Jones’ solicitors, Professor Terry offered Ms Jones the opportunity to nominate additional staff members of her choosing for interview to assist QTAC in making its decision.

Conclusion

  1. In summary, I consider that QTAC has followed a comprehensive, independent and fair process to investigate the complaints against Ms Jones. Ms Jones has had multiple opportunities to respond to the formal complaints of staff, the allegations made by the ASU in respect of Ms Jones’ alleged mistreatment of QTAC staff, and the findings of the independent investigator. No decision has yet been made by QTAC as to disciplinary action – if any – which will result from the investigation. On the evidence before the Court all issues which could form the basis for a decision by QTAC have been put to Ms Jones for her response.
  2. To the extent that there may have been flaws in the process adopted by QTAC, I note comments of the majority of the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578 where their Honours said:
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.

(cf Mason CJ in The State of South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 at 389)

  1. I consider that, viewed in its entirety, the decision-making process applied by QTAC in these circumstances entailed procedural fairness.

THE ESTOPPEL CAUSE OF ACTION

  1. Ms Jones’ estoppel cause of action is found in paras 12C-12F of her Amended Statement of Claim. These paragraphs provide:
12C. Further, or alternatively, on about 29 October 2009, the Respondent represented to the Applicant and induced the Applicant to assume, and the Applicant did assume, that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice.

PARTICULARS

Letter to the Applicant from Professor Deborah Terry on behalf of the Respondent dated 29 October 2009.

12D. The Applicant acted in reliance on the Respondent’s representation.

PARTICULARS

Letter to Professor Terry from the Applicant dated 11 November 2009.

12E. The Respondent knew the Applicant would act, or intended the Applicant to act, on the representation and/or assumption pleaded in paragraph 12C herein.

12F. The Applicant has and/or will suffer detriment if the representation and/or assumption is not fulfilled.

PARTICULARS

(a) Disciplinary action including termination of employment;

(b) Damage to reputation.

1. Did QTAC represent to Ms Jones that any decision with respect to her employment would not be made without a fair process, including the provision of natural justice?

  1. In this case QTAC has conceded that, in Professor Terry’s letter of 29 October 2009, Professor Terry made a representation to Ms Jones:
  2. However QTAC submits that it has complied with this representation. I agree that QTAC has complied. I have already given detailed reasons for my findings that QTAC followed a process fair to Ms Jones in dealing with the complaints against her, including providing natural justice.

2. Has Ms Jones relied on this representation?

  1. In oral closing submissions, Mr Spry for Ms Jones submitted, in summary, that Ms Jones has relied on this representation to her detriment in that:
  2. I do not accept these submissions. In the circumstances of this case I am unable to see how an alleged assumption by third parties (including the ASU) that QTAC would provide natural justice to Ms Jones following a statement by QTAC that it would so act, translates into reliance by Ms Jones on the QTAC representation. Even had there been a representation to third parties – and in this case the representation is specifically identified by Ms Jones as being in a letter of 29 October 2009 to her solicitors from Professor Terry – I am unable in these circumstances to identify a link between such representation and reliance by Ms Jones.
  3. In any event I am unable to identify how, as a general proposition, Ms Jones has relied on QTAC’s representation that it would follow a fair process. Indeed in the letter of 11 November 2009, Ms Jones (through her solicitors) indicated that QTAC had not accorded Ms Jones natural justice because, inter alia:
  4. Ms Jones’ solicitors also stated in that letter that Ms Jones had “little faith in the current process”.
  5. In my view such comments contradict any claim by Ms Jones that she had relied on any representation by QTAC that it would act with procedural fairness.

3. Has Ms Jones altered her position to her detriment as a result of her reliance, or will she suffer detriment as a result of her reliance, on the representation?

  1. In any event, I am unable to identify how Ms Jones has altered her position to her detriment, even had she relied on the QTAC representation.
  2. The representation by QTAC that it would follow a fair process was made by Professor Terry in her letter of 29 October 2009. Ms Jones’ original application in these proceedings was filed little more than two weeks later on 16 November 2009. No evidence was given by Ms Jones as to how she altered her position because of that representation during that period, or any detriment she suffered as a result. Further, Ms Jones has not demonstrated that she would have acted differently had the representation not been made.
  3. Finally, Ms Jones’ claim in para 12F of the Amended Statement of Claim that she will suffer detriment if QTAC’s representation is not fulfilled is not supported by any evidence, or indeed any specific submissions by her. It is not clear at this stage that Ms Jones will be subject to any disciplinary action or any damage to her reputation as she claims notwithstanding the investigation process adopted by QTAC – indeed the fact that QTAC has not yet made a decision with respect to the complaints against Ms Jones was a recurring theme throughout these proceedings.
  4. In my view Ms Jones’ claim that she is entitled to relief because QTAC has failed to fulfil its representation that no decision in respect of Ms Jones’ employment would be made without a fair process, including the provision of natural justice, is not substantiated.

CONCLUSION

  1. In my view the proper order is that the application be dismissed.
I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:


Dated: 29 April 2010


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2010/399.html