Case: Police Federation of Australia v Nixon [2008] FCA 467 ; (2008) 168 FCR 340
Outcome: cited
note that a contrary view was expressed by Ryan J in Police Federation of Australia v Nixon [2008] FCA 467 ; (2008) 168 FCR 340 where his Honour observed that the resumption of an investigation into certain allegations against a senior police officer did not amount to an alteration of the officer's position because "alteration" in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Specifically, his Honour found that: Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. (at [45]) Mr Spry drew my attention to further comments of his Honour in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 at [48] , namely: 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 advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores ... In highlighting these comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 , Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon [2008] FCA 467 ; (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage. In this case Ms Jones has established at least a sufficient likelihood of success in claiming that the commencement of the investigation by QTAC and the subsequent conduct of the investigation were prejudicial or disadvantageous to her position as an employee. Not only had QTAC commissioned an investigation by a third party into complaints and allegations against Ms Jones in circumstances where such complaints and allegations included anonymous complaints or, in the case of allegations by Mr Williams, were allegedly driven by motives relevant to his own position, but QTAC on 6 November 2009 informed all staff of the existence of the Carol Watson report and that it intended to respond to it. While QTAC did not specifically identify Ms Jones as the subject of the report, in my view the focus of the report would have been well-known to QTAC staff. Such publicity is invariably capable of damaging the reputation of an employee or adversely affecting her standing in the organisation (cf comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 at [42] - [43] ). 5. Fifth, in her letter to Ms Jones dated 29 October 2009, Professor Terry responded in detail to issues raised in correspondence from Cooper Grace Ward on behalf of Ms Jones and concluded: 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 William's 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. As is clear from the affidavit of Professor Terry sworn 18 November 2009 (paras 23-25), a meeting of the members of QTAC was proposed to make a decision concerning Ms Jones' employment based on the Carol Watson report and Ms Jones' responses to that report. Indeed a meeting was scheduled to take place on 17 November 2009 but postponed because of the commencement of these proceedings.