Written by Managing Partner Clayton Glenister and Senior Associate Sewar Mitanis
Deputy President Merrell of the Queensland Industrial Relations Commission recently released a decision that found the dismissal of an employee of Hinchenbrook Shire Council to be “invalid” and “unjust”. Please read on for more about the case and how we can assist local councils with Employment and Workplace Relations matters.
Facts Of The Case
Rosemary Bentzen was employed by Hinchenbrook Shire Council as an Executive Manager of Development, Planning and Environmental Services from August 2019. Her employment was terminated by a letter from the then Chief Executive Officer for “… misconduct arising from negligent mismanagement and subsequent lack of diligent, effective, efficient and economical management of a public resource of the Council”.
Ms Bentzen’s dismissal related to the non-payment of rent by a business who leased premises from the council in order to operate a restaurant. The council was not able to recover the outstanding rent as the 2 individuals who managed the business declared their bankruptcy in July 2019.
The council had determined that Ms Bentzen was responsible for the non-payment of the rent as she had not sent any invoices for rent since August 2017.
The Operation Of Section 283 Of The Local Government Regulation 2012 (Qld)
Ms Bentzen claimed that the termination of her employment was invalid as the council failed to comply with Sections 279 and 283(1) of the Local Government Regulation 2012 (Regulation). The council claimed that it was not required to comply with s283 of the Regulation because it “excludes the operation of common law, and because Ms Bentzen engaged in repeated misconduct which warranted summary dismissal at law”.
Further, the council argued that s283 of the Regulation has no authorisation to set out how disciplinary action may be taken and it exceeds the terms of the authorising law (i.e. the Local Government Act). Therefore, it argued that s283 of the Regulation is actually “invalid”.
The Queensland Industrial Relations Commission rejected the council’s argument in relation to the validity of s283 of the Regulation and found that it is valid and that the measures prescribed by s283 are, at the very least, incidental to disciplinary action being taken by a chief executive officer against a local government employee because s283 ensures that any disciplinary action is taken in a way that is “procedurally fair”.
The Commission also found that under s283, the council must provide the employee written notice of the disciplinary action to be taken, the grounds of the action, the particulars of the conduct and a reasonable opportunity for the employee to respond to the information contained in the notice. This applied despite the fact that the employee was a senior officer.
Further, the Queensland Industrial Relations Commission also determined that where the council is taking disciplinary action against an employee as a result of the employee’s failure to meet their obligations under s4(2) of the Local Government Act 2009, the council must provide the required written notice, even in circumstances of alleged “repeated misconduct”, which would have otherwise warranted summary dismissal.
When Is A Dismissal “Invalid” And What Does It Mean For Local Councils In Queensland?
The compliance with the requirements in s283 of the Regulation is mandatory and the Hinchenbrook Shire Council has failed to provide the required written notice of the disciplinary action to be taken against Ms Bentzen, the grounds on which the action is taken and the particulars of the alleged conduct to support the grounds for the action. As such, it was found that the council has failed to comply with s283 and therefore, the dismissal of the employee was “invalid”.
The Queensland Industrial Relations Commission continued on to determine that the purpose of the procedures in s283 of the Regulation is to “ensure that natural justice is observed prior to disciplinary action being taken against a local government employee. It is a requirement of fairness…”. A declaration that the dismissal of Ms Bentzen was “invalid” was also issued by the Commission.
Finally, the commission found that whilst the council had a “reasonable basis” to terminate Ms Bentzen’s employment for “negligence” in respect with the recovery of rent, the dismissal was considered “unjust” given the failure of the council to meet the requirements of s283.
Another reason for this finding was that the council had failed to give Ms Bentzen prior notice of the matters discussed with her in relation to her conduct, and her responses to allegations, may result in the termination of her employment.
The Queensland Industrial Relations Commission stated that “an invalid decision is of no effect and, insofar as substantive rights are concerned, such a decision is invalid from the date upon which it was made”.
The Commission made an order that Ms Bentzen be “restored” to her former position with the council, that there was no break in service and ordered that Hinchenbrook Shire Council pay to Ms Bentzen the remuneration lost by reason of her purported dismissal.
How Does This Decision Affect Local Councils In Queensland?
Before dismissing employees (including senior officers) for any reasons relating to their failure to meet their responsibilities, local councils must ensure that the criteria prescribed by s283 of the Regulation is followed in order to discharge their obligation to afford employees natural justice and procedural fairness. Remember, the existence of valid reasons for termination is not sufficient in any case.
How Can We Help?
At MBA Lawyers, we have a highly skilled team of lawyers with extensive experience in local government and private industry. We can give you practical and tailored advice on processes and best practice to avoid employee relations issues within your council or business.
For more information, please contact Sewar Mitanis, Senior Associate in our Employment and Workplace Relations team. Please call our team on 07 5539 9688 or leave an enquiry and we’ll be happy to assist you.