Quinn v Overland  FCA 799 (28 July 2010)
The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public sector employers to conform with ‘public sector employment principles’. Although not directly relevant to this case, s 8(ca) of the PA Act defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Human Rights and Responsibilities are upheld’. This decision also supports the view that employment policies established for the purpose of s 8(ca) constitute statutory duties that must be upheld by public sector employers.
Ms Quinn sought an injunction to prevent the respondents from continuing to suspend her from employment. She was employed as a permanent officer of the Victorian Public Service as manager of the Drug and Alcohol Branch of the Victoria Police Forensic Services Centre. In light of a report of the Victorian Ombudsman which (among other things) concluded that arrangements for dealing with the management of drug exhibits were ineffective, Ms Quinn was advised that she would be suspended with pay. Over a period of seven months from the date of suspension on 10 December 2009, three different investigators were appointed by the respondents to investigate the conduct of Ms Quinn. The findings of each investigator varied and eventually, on 14 July 2010, the original suspension of employment was replaced by a fresh suspension based on the findings of the third investigator. This fresh suspension occurred following the interlocutory hearing but prior to judgment being delivered. The respondents were granted leave to reopen the hearing.
Justice Bromberg had to consider whether there was a serious issue to be tried that ss 20(3)(c) and 8 of the PA Act placed statutory duties on public sector employers, creating corresponding private rights capable of being pursued by public sector employees. In summary, s 20(3)(c) of the PA Act provides that, when exercising duties as an employer, a public service body Head must exercise a right, power or authority in conformity with the public sector employment principles. At issue in the case was the public sector employment principle contained in s 8(b), which provides that employment processes must be established that will ensure that ‘public sector employees are treated fairly and reasonably’.
Justice Bromberg had to consider whether it was arguable that a clause of a relevant certified agreement was applicable in the circumstances by virtue of it being established for the purpose of s 8, or it being otherwise arguably applicable pursuant to the obligation imposed by s 20(3)(c) read alone. The relevant certified agreement could not be directly enforced via an injunction due to it being deemed a ‘transitional instrument’ under Fair Work laws. The clause in question (clause 17.8) dealt with the circumstances in which an employee could be suspended from employment. It was arguable that the second respondent had not complied with clause 17.8 (and other related clauses) in the circumstances.
While Justice Bromberg stated that it was ‘neither appropriate nor necessary’ that he ‘reach a definitive view as to the statutory obligations imposed upon the second respondent by the PA Act’, his Honour was satisfied that there was a serious issue to be tried that ‘in making the decision to suspend Ms Quinn, the second respondent exercised its power under the PA Act’.
His Honour held that it was arguable that s 20(3)(c) identified s 8 as containing the relevant public sector employment principles that the respondents were required to conform with as employer, including the duty to treat Ms Quinn fairly and reasonably. His Honour found that treating Ms Quinn fairly and reasonably necessarily required at a minimum, that the respondents comply with the employment policy that incorporated clause 17.8 by reference. His Honour found it arguable that s 20(3)(c) imposed this statutory duty independently of s 8.
His Honour also found it arguable that s 8, either operating alone or in combination with s 20(3), imposed an obligation on the respondents to comply with clause 17.8. Because s 8 required the establishment of employment processes that would ‘ensure’ compliance with the principle identified (in this case, that public sector employees be treated fairly and reasonably), it was arguable that s 8 placed an obligation on public service body Heads to comply with those processes. This meant that each process established for the purpose of making sure public sector employees were treated fairly and reasonably (including, in this case, the processes set out in clause 17.8), became a requirement of s 8 itself, rather than a process merely established pursuant to s 8. As a result, it was arguable that a breach of clause 17.8 could constitute a breach of statutory duty either pursuant to s 8 operating alone or in conjunction with s 20(3).
On the facts, it was found that it was seriously arguable that Ms Quinn’s suspension of employment had been invalid by reason of breach of a statutory duty, and after considering other relevant issues, his Honour granted the injunction to restrain the respondents from suspending Ms Quinn’s employment.
Human Rights Implications of the Decision
Although it was not relevant to the case, s 8(ca) defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Rights and Responsibilities are upheld’. The decision of Bromberg J indicates that ss 20(3)(c) and 8(ca) place statutory duties on public sector Heads, also creating corresponding rights capable of being pursued by public sector employees seeking relief against employment practices that breach their human rights contained the Charter.
Further, if workplace processes are established by public sector Heads to ensure that Charter rights are upheld in the workplace, Bromberg J’s decision lends weight to the argument that those processes form part of the statutory duties and corresponding rights contained in sections 20(3)(c) and 8(ca) of the PA Act.
The decision is at www.austlii.edu.au/au/cases/cth/FCA/2010/799.html.
Jacqui Bell is on secondment to the Human Rights Law Resource Centre from Blake Dawson