The recent decision of the Industrial Court of Queensland (ICQ) in Promnitz v Gympie Regional Council  ICQ 011 has highlighted the risks to Councils where there is a failure to follow the strict procedural steps that apply before local government Chief Executive Officers (CEOs) can lawfully take disciplinary action.
In February 2014 the employee, Ms Promnitz, filed an application for reinstatement, alleging that she had been unfairly dismissed. She subsequently sought orders under s274A of the Industrial Relations Act 1999 (Qld) (IR Act). She claimed that her dismissal was invalid on the basis that her employer, Gympie Shire Council (Council), had failed to comply with the requirements of r283 of the Local Government Regulation 2012 (Qld) (Regulation). Regulation 283 requires that before a CEO takes disciplinary action against a local government employee, the CEO must give the employee:
- written notice of
- the disciplinary action to be taken
- the grounds on which that disciplinary action is taken
- the particulars of conduct claimed to support the grounds, and
- a reasonable opportunity to respond to the information contained in the written notice.
The Council conceded that it had not complied with at least some requirements in r283, but argued that failure to do so did not render the termination invalid.
At first instance, Deputy President Kaufman of the Queensland Industrial Relations Commission sided with the Council, finding that on balance ‘it is not a purpose of the legislation that an act done in breach of its provisions should be invalid’.
On appeal that decision was overturned. President Martin of the ICQ held that the use of the word ‘must’ in r283 meant that it was mandatory for the Council to comply with the requirements of the Regulation prior to a decision being made about disciplinary action against an employee.
The President held that the proper construction of the Regulation meant that where a dismissal decision was made without complying with the procedural steps set out in the Regulation, that decision would be invalid.
It is important to note however, that the requirements only apply to instances of discipline occurring for matters under r279 of the Regulation, namely where the employee is alleged to have:
- failed to perform their responsibilities under the Local Government Act 2009 (Qld) (LG Act)
- failed to perform a responsibility under the LG Act in accordance with local government principles, or
- taken action under the LG Act in a way that is not consistent with the local government principles.
Council CEOs, and those advising them, need to be aware of the strict statutory requirements prescribed for taking disciplinary action against employees in the above circumstances.
All Councils should provide procedural fairness when disciplining employees as part of best practice, if not under contractual requirements, and as part of avoiding claims of unfair dismissal where the disciplinary action taken will be termination of employment. However, these codified requirements in the Regulation provide a specific checklist which must be satisfied.
Although some scope for argument may exist as to what is a ‘reasonable opportunity to respond’ in r283 of the Regulation, and this will clearly be a matter to be judged on a case by case basis, the requirements are otherwise simply defined.
In this matter, it was found that Ms Promnitz’s termination of employment was invalid. As a consequence, she had (as a result of this finding) remained employed by Council since she was dismissed in mid-February 2014 and throughout the course of the litigation – noting that the decision on appeal was not handed down until 28 April 2015. Ms Promnitz is therefore in a position where not only will she remain in employment, but can also claim employment based payments for this period.