Written by Peter CarterSeptember 23, 2021
An employee of a regional council centered on Moranbah in the Bowen Basin has won a ruling that the management action that caused an adjustment disorder as a result of a disciplinary proceeding that was reasonable management action taken unreasonably.
Trevor Maher joined the Isaac Regional Council as a Regulatory Services Program Leader in March 2016.
In May 2018 a number of concerns arose in relation to his conduct.
A meeting to discuss possible suspension was convened by two management representatives “very close to knock off time” without any notice to Maher of its purpose and without affording him any opportunity to prepare any response to the allegations.
Neither was he given the opportunity to bring in a support person until – on the council’s version of events – the meeting was underway and before its purpose was revealed.
Regardless, he was suspended on pay while an “external investigation” was carried out.Some of the allegations – in a draft report from the Council’s consultants, Livingstones – were found to have been substantiated, as a result of which he was issued a Show Cause Notice in August 2018 concerning breaches of the Council’s Code of Conduct.
His employment was terminated as a result of the findings in May 2019.
He was diagnosed as suffering “an adjustment disorder with anxiety and depressed mood” as from 29 August 2018 but his application for workers’ compensation was denied by Local Government WorkCover on the grounds that any such injury resulted from “reasonable management action”.
Maher’s referral of the matter to the Regulator in August 2019 upheld the original decision.He appealed that decision to the Queensland Industrial Relations Commission, contending that the absence of prior notice of the purpose of the “suspension” meeting and the lack of opportunity to call a support person into the meeting, was unreasonable.
The matter came before Commissioner McLennan before whom Maher also alleged it had also been unreasonable for the Council’s Show Cause Notice not to fully particularise all allegations in the grounds on which they were made; and to have issued that notice prior to its receipt of the final version of the Livingstones report.
The Council denied these allegations and contended that if there were any instances of procedural unfairness, they amounted to a mere “blemish”.
It also assert that although Maher was summoned to his manager’s office at 4:40 PM “cold”, he must have already “sniffed the wind” so as to be aware of the purpose of the May 2018 meeting.
In the Commissioner’s view however, “it should not have been left to Mr Maher to assume what the meeting was about… rather, the onus is on the Council to tell him in advance”.
Further “the failure to offer Mr Maher the opportunity for a support person prior to the suspension interview” was unreasonable.
In relation to the Show Cause Notice, the court also found that there was insufficient particularisation within the notice itself in breach of the disciplinary provisions within the Local Government Regulations.
Further, the Council should have required the external investigators to prioritise the delivery of the final investigation report – including all attachments – to enable its prompt and thorough deliberation of the matters “in their entirety”, rather than decide a course when only a draft report was in hand.
Having regard to the breaches concerning the Show Cause Notice and the suspension meeting, the court was compelled to conclude that the action taken – however reasonable those ultimate decisions may have been – was not taken in a reasonable manner.
As a result the Council was not afforded the customary defence under s 32 (5) of the Workers Compensation and Rehabilitation Act in relation to “reasonable management action”.
Several other submissions from Maher were rejected by the court.
He is now entitled to back pay of statutory time off work compensation together with a lump sum payment and/or common law damages for the injury sustained.