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[2010] FCA 799
Federal Court of Australia
2010-07-28
Mr J, Bromberg J
Original judgment source is linked above.
INTRODUCTION 1 This is an application for interlocutory relief brought by the applicant Catherine Quinn. Ms Quinn seeks interim relief in relation to directions given by the second respondent suspending her from her employment. For the reasons that follow I have determined to grant Ms Quinn interim relief, the effect of which will be that pending the hearing and determination of this matter or further order, Ms Quinn will be able to resume work.
the facts 2 Ms Quinn is employed as a permanent officer of the Victorian Public Service in the position of Manager of the Drug and Alcohol Branch of the Victoria Police Forensic Services Centre ("the Forensic Services Centre" or "the Centre"). Ms Quinn is a forensic scientist. The Drug and Alcohol Branch is comprised of Forensic Officers who analyse drug samples, attend crime scenes, analyse and examine items related to illicit drug manufacture and analyse drug samples for intelligence or evidentiary purposes. Additionally, Forensic Officers analyse blood samples for the presence of drugs and alcohol. 3 In the organisational structure of the Forensic Services Centre, the Drug and Alcohol Branch is a branch of the Chemistry Division which is headed by an Assistant Director. As Manager of the Drug and Alcohol Branch, Ms Quinn reports to the Assistant Director of the Chemistry Division. 4 Within a separate division of the Centre known as the Business and Strategic Services Division, there exists a unit known as the Forensic Exhibit Management Unit ("FEMU"). 5 The Forensic Services Centre is headed by a Director. The Director is answerable to the first respondent, the Chief Commissioner of Police. 6 On 10 December 2009, the Victorian Ombudsman presented a report to the Victorian Parliament in relation to an investigation into the handling of drug exhibits at the Forensic Services Centre. The Ombudsman's investigation was initiated by a disclosure under the Whistleblowers Protection Act 2001 (Vic) regarding the manner in which drug exhibits were being managed at the Centre. As the report identifies, there are two areas within the Forensic Services Centre that have responsibility for the management of drug exhibits. The FEMU is the repository for all powder drug exhibits, and is responsible for their ultimate destruction. The Drug and Alcohol Branch is responsible for sampling and analysing powder drugs, volatile chemicals and precursors, and associated clandestine laboratory exhibits. It is also responsible for storing and destroying hazardous clandestine laboratory exhibits. 7 The Ombudsman's investigation concluded that arrangements dealing with the management of drug exhibits were ineffective. In summary, the inefficiencies identified included a lack of processes and records for the tracking of drug exhibits held at the Centre; a lack of rigour in relation to the auditing of drug exhibits held by the Drug and Alcohol Branch and the FEMU; a need to improve business processes relating to drug exhibit management including by the revision of manuals; a need to improve leadership and direction to address underlying problems with the management of drug exhibits; and a need to improve the arrangements for sampling and disposing of drug exhibits. 8 The Ombudsman's report noted that there was considerable and long standing tension between staff in the FEMU and the staff of the Drug and Alcohol Branch. The report includes respondes made by Ms Quinn which attribute the difficulties to the inability of senior management of the Centre to provide appropriate due processes for the clarification and resolution of issues, the inability to act due to limited resources and/or a lack of clear management direction and appropriate support. Both Ms Quinn and the former Director of the Centre (Mr Alastair Ross) point to significant levels of under resourcing within the Centre as being the basis for many of the problems identified by the Ombudsman's investigation. 9 The Ombudsman's report contains a chapter dealing with governance and leadership issues. The Ombudsman found that the workload of the Drug and Alcohol Branch had significantly increased over the past decade and that, until recently, the branch had struggled to cope with its workload. That chapter includes conclusions about the management of the Drug and Alcohol Branch. There is a conclusion that the management of the Centre did not take decisive action to ensure staff of the Drug and Alcohol Branch adhered to policies and procedures that were intended to provide an effective governance framework for the management of drug exhibits. Criticism in this respect is made of senior executives of the Centre. 10 Reference is made by the Ombudsman to earlier investigations conducted by the Corporate Management Review Division and the Ethical Standards Department over the past six years. Those investigations dealt in part with allegations made against Ms Quinn. They found no evidence of corrupt behaviour by Ms Quinn and that the allegations made against her were not substantiated. Those allegations included allegations about her tardiness in returning exhibits and in relation to her record keeping. The Ombudsman noted that his examination of those investigations identified two common and related themes - poor record keeping by Ms Quinn and a failure to adhere to procedures that ensure accountability and transparency in the management of drug exhibits. The Ombudsman however noted Ms Quinn's response that if the earlier investigations did identify these themes, she had never been notified of any such failings nor given any opportunity to improve, including by undertaking further training or instruction. 11 The Ombudsman's report identifies an urgent need to improve a number of accountability arrangements for drug exhibits and to strengthen the auditing regime for these items. He says that the investigation also identified the need to review the duties of those involved in the management of the Drug and Alcohol Branch to ensure that adequate attention is being given to their managerial responsibilities. The Ombudsman's report in this respect noted that Ms Quinn would welcome the opportunity for appropriate review and resolution. 12 In relation to the governance and leadership of the Centre, the Ombudsman made a number of recommendations including a review of the senior management team structure at the Forensic Services Centre. 13 Recommendation 47 dealt directly with the Drug and Alcohol Branch and was in the following terms: Undertake an external review of the Drug and Alcohol Branch to:
(a) examine the roles, responsibilities and reporting arrangements of the senior managers, particularly the role of the Manager of the Drug and Alcohol Branch; (b) determine if additional resources should be allocated to the Drug and Alcohol Branch. 14 The Ombudsman's report did not contain any recommendation that Ms Quinn be counselled or otherwise disciplined in relation to her conduct. 15 All the recommendations that were made by the Ombudsman have been accepted by Victoria Police. 16 On the morning of 10 December 2009, just prior to the Ombudsman's report being tabled in the Victorian Parliament, Ms Quinn attended a meeting with Ms Bec Munn, Executive Director (People) Victoria Police. At the meeting, Ms Quinn was given a letter dated 10 December 2009 advising her that the Ombudsman's report had raised some serious issues for Victoria Police to consider and that she was being suspended with pay. The letter referred to clause 17 of the Victorian Public Service Agreement 2006 Extended and Varied Version 2009 ("the 2009 Agreement"). Attached to the letter was an extract from the Victoria Police Manual setting out VPM Instruction 211-4 headed "Disciplinary Action - Unsworn Employees" ("VPM Instruction 211-4"). Under the subheading "Policy", that Instruction refers to and incorporates clause 17 of the 2009 Agreement. A copy of clause 17 of the 2009 Agreement ("clause 17") was also attached to the letter. The 2009 Agreement is an industrial agreement made between the State of Victoria and the Community and Public Sector Union. Clause 17 deals with the management of unsatisfactory work performance and misconduct. Clause 17.8 sets out a process for dealing with employees accused of misconduct. 17 Clause 17.8 is in the following terms: 17.8 Misconduct and referred unsatisfactory work performance matters 17.8.1Process Where an Employee is alleged to have engaged in misconduct, there will be, consistent with the requirements of procedural fairness: 17.8.1(a)an investigation (see clause 17.8.5); 17.8.1(b)an opportunity for the Employee to respond to the findings of the investigation and a recommendation about a proposed discipline outcome (see clause 17.8.6); and 17.8.1(c) a determination of the discipline outcome by the Employer (see clause17.8.7). 17.8.2 Directions Once a process in accordance with this clause 17.8 has commenced, the Employer may do any of the following: 17.8.2(a)direct the Employee to proceed immediately to perform alternative duties or work at an alternative place of work; 17.8.2(b) direct the Employee not to speak to other employees of the Employer about the matter or not to visit certain places of work; 17.8.2(c)suspend the Employee with pay; 17.8.3 Potential criminal conduct Where the allegations that are the subject of a process in accordance with this clause 17.8 are also the subject of a criminal investigation or criminal proceedings, the Employer is not required to delay or cease the process under this clause but the Employer may exercise its discretion to do so. 17.8.4 Admissions by Employee 17.8.4(a)The Employee may at any stage elect to admit the allegations. 17.8.4(b)If the Employee admits all of the allegations, the Employer will proceed to the determination of discipline outcome stage. 17.8.5 Investigation 17.8.5(a) As soon as practicable after allegations of misconduct have been made against an Employee, the Employer will advise the Employee of the allegations in writing. 17.8.5(b)The written advice will contain all of the allegations that have been made about the Employee's misconduct. Relevant information will only be withheld where it is necessary to withhold that information in order to protect the personal privacy of any other person consistent with Federal or State legislation. 17.8.5(c)The Employer will appoint a person to conduct an investigation into the allegations made against the Employee. Where appropriate, the investigation may be conducted by the Employee's immediate manager. The appointed person must not have any prior personal involvement in the matter. 17.8.5(d) The investigation may include: 17.8.5(d)(i)collecting any relevant materials; 17.8.5(d)(ii) speaking with the Employee; 17.8.5(d)(iii) speaking with any relevant witnesses; 17.8.5(d)(iv) providing the Employee with specific particulars to allow the Employee to properly respond to the allegation/s; 17.8.5(d)(v) seeking an explanation from the Employee; and 17.8.5(d)(vi) investigating any explanation made by the Employee for the purposes of verifying the explanation so far as possible. 17.8.5(e)In relation to each allegation of misconduct, the investigator will make findings as to whether: 17.8.5(e)(i)the allegation is substantiated; or 17.8.5(e)(ii) the allegation is not substantiated. 17.8.5(f) Where the investigator makes a finding that an allegation is not substantiated, the process will conclude in relation to any such allegation and the Employee will be informed accordingly. 17.8.5(g)Where the investigator makes a finding that the allegation is substantiated, the Employer will consider this information and propose a discipline outcome. 17.8.6Opportunity for response by Employee 17.8.6(a) As soon as practicable after the investigator has made a finding that any allegation of misconduct is substantiated, the Employee will be provided with the findings of the investigator and the proposed discipline outcome. 17.8.6(b) The Employee will be given a reasonable time to respond to the findings or the material and the recommended discipline outcome. Any response must be provided within the above reasonable time. 17.8.7 Determination of discipline outcome 17.8.7(a) The Employer will consider the findings and recommended discipline outcome and any response of the Employee and determine the discipline outcome that is to apply to the Employee. The discipline outcome must not be disproportionate to the seriousness of the matter. 17.8.7(b)The possible discipline outcomes are: 17.8.7(b)(i) no action; 17.8.7(b)(ii) performance management; 17.8.7(b)(iii) formal counselling; 17.8.7(b)(iv) formal warning; 17.8.7(b)(v) final warning; 17.8.7(b)(vi) assignment of the Employee with their agreement to a role at a classification level lower than the Employee's current classification level; or 17.8.7(b)(vii) termination of employment. 17.8.7(c) The Employer will advise the Employee of the discipline outcome in writing and a copy will be placed on the Employee's personnel file. 18 The letter of 10 December 2009 referred specifically to clause 17.8.2(c) as being the basis for the suspension. That clause provides that once a process in accordance with clause 17.8 has commenced, the employer may "suspend the Employee with pay". The letter also directed Ms Quinn not to speak with any other Victoria Police employees about the matters of the handling of drug exhibits at Victoria Police, and not to visit any Victoria Police premises. The letter further informed Ms Quinn of the intention of Victoria Police to provide her with procedural fairness and an opportunity to respond "to any allegations put to [her]". The letter did not itself contain any specific allegations. 19 On 15 December 2009, the respondents notified Ms Quinn of five allegations of misconduct made against her (the "Original Allegations") as follows:
interlocutory injunctions 45 In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57 at [65], [19]. 46 The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability: Australian Broadcasting Corp v O'Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].
serious question to be tried 47 I am satisfied that Ms Quinn has made out a prima facie case that the new suspension decision is invalid and that the Court has the jurisdiction to issue the injunction that Ms Quinn seeks. That conclusion relies upon my satisfaction that there are serious issues to be tried in relation to a number of competing contentions to which I now turn.
Jurisdiction and Alleged Statutory Breach 48 Both Ms Quinn and the respondents accept that the 2009 Agreement was a certified Agreement certified under the Workplace Relations Act 2006 (Cth) and is now an "agreement-based transitional agreement" within the meaning of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Fair Work (TPCA) Act"). Item 17 of that Act provides that no injunction can be granted to prevent, stop or remedy the effects of a contravention of a transitional instrument. Ms Quinn accepts that the 2009 Agreement is such an instrument. 49 However, Ms Quinn does not rely on a breach of the 2009 Agreement as an industrial instrument made under the Fair Work (TPCA) Act. Ms Quinn contends that clause 17 has been incorporated by reference into the employment processes which have been established for the purposes of s 8 of the Public Administration Act 2004 (Vic) ("the PA Act"). The interlocutory injunction she seeks is based on her contention that the respondents have breached ss 8 and 20(3)(c) of the PA Act. 50 There is no statutory prohibition on the Court exercising the power conferred upon it by s 23 of the Federal Court Act 1975 (Cth) to grant an injunction in respect of the breach of the PA Act. However, as with any claim for breach of statutory duty, I will need to be satisfied, as I am, that there is a serious issue that the statutory provisions relied upon in support of the grant of relief create a private right of action capable of being pursued by the person or persons who seek relief. Before explaining my satisfaction as to that issue, I need to explain the manner in which Ms Quinn contends that there is a serious issue of a statutory breach of the PA Act by the respondents. 51 By their pleadings, the respondents accept that Ms Quinn is employed by the second respondent pursuant to Part 3 Division 4 of the PA Act. Pursuant to s 20(c) of the PA Act, on behalf of the second respondent, the first respondent has all the rights, powers, authorities and duties of an employer in respect of Ms Quinn. 52 Section 20(3) of the PA Act provides: A public service body Head, in exercising a right, power, authority or duty referred to in this section, must do so in conformity with- (a) the public sector values; and (b) any binding code of conduct; and (c) the public sector employment principles; and (d) standards issued by the Public Sector Standards Commissioner; and (e) any other relevant provisions of this Act or the regulations. 53 As the s 4 definition provides, the public sector employment principles referred to in s 20(3)(c) are set out in s 8 of the PA Act. Section 8 is in the following terms: Public sector body Heads must establish employment processes that will ensure that- (a) employment decisions are based on merit; and (b) public sector employees are treated fairly and reasonably; and (c) equal employment opportunity is provided; and (ca) human rights as set out in the Charter of Human Rights and Responsibilities are upheld; and (d) public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment; and (e) in the case of public service bodies, the development of a career public service is fostered. 54 Ms Quinn contends that VPM Instruction 211-4 has been established by the second respondent in pursuance of the second respondent's duty under s 8(b) to establish employment processes that will ensure that public sector employees are treated fairly and reasonably. On the evidence before me, there is a serious issue to be tried that this contention is correct. The respondents do not admit it but have not denied it. Given the mandatory requirements of s 8, it may readily be inferred that the second respondent has established an employment process that deals with the fundamentally important process of the taking of disciplinary action against unsworn employees. VPM Instruction 211-4 is such a process, requiring (in substance) that disciplinary action be taken in accordance with clause 17. No other process covering that subject matter is in evidence. Accordingly, Ms Quinn's contention should be accepted for present purposes. 55 However, it remains necessary to identify a provision requiring the second respondent to observe the employment processes that have been established pursuant to s 8. By requiring that the processes established "will ensure" compliance with the principles identified, s 8 arguably imposes a requirement that the public sector body Head comply with those processes. It is seriously arguable that such a requirement is a requirement of s 8 itself, and not merely intended as a requirement of any process established pursuant to s 8. 56 Ms Quinn also contended that the requirement upon the second respondent to observe VPM Instruction 211-4 is a requirement imposed by s 20(3)(c). That contention operates on the basis that an employment process established under s 8 is a public sector employment principle within the meaning of s 20(3)(c). The potential difficulty with that contention is that s 4 defines public sector employment principles as "the principles set out in s 8" and not the processes established pursuant to s 8. 57 If s 20(3)(c) is identifying each of sub paragraphs (a)-(e) of s 8 as the public sector employment principles, then independently of any requirement under s 8, s 20(3) would require the second respondent's power in respect of Ms Quinn to be exercised in conformity with each of those subparagraphs, including paragraph (b) which requires that an employee be treated fairly and reasonably in the light of the other requirements imposed by s 20(3). I accept that the existence of such a duty is seriously arguable. 58 As argued by her counsel, treating Ms Quinn fairly and reasonably necessarily required, at a minimum, that the first respondent complied with VPM Instruction 211-4 and thus clause 17. 59 In Paras v Department of Infrastructure [2006] FCA 622, Young J was satisfied that ss 8 and 20(3) arguably gave rise to statutory rights available to public sector employees. Furthermore, as Gleeson CJ said in Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [26]: Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament's assumed respect for justice. 60 It is neither appropriate nor necessary that I reach a definitive view as to the statutory obligations imposed upon the second respondent by the PA Act. It is sufficient that I be satisfied, as I am, that there is a serious issue that in making the decisions to suspend Ms Quinn, the second respondent exercised its power under the PA Act and in doing so was obliged to: (i) Comply with VPM Instruction 211-4 and thus the terms of clause 17 by reason of s 8, either alone or in combination with s 20(3) of the PA Act; and/or (ii) Comply with s 20(3), including the requirement of paragraph (c), that Ms Quinn be treated fairly and reasonably including by complying with VPM Instruction 211-4 and thus clause 17.
61 I am satisfied that there is a serious issue to be tried that the second respondent did act under the PA Act and/or the VPM Instruction 211-4 and not simply pursuant to the 2009 Agreement, as the respondents contended. Firstly, the facts, and in particular that Ms Quinn was referred to VPM Instruction 211-4 when initially suspended weigh against the characterisation contended for by the respondents. 62 Secondly, it seems likely that the powers conferred upon the second respondent by s 20(1) of the PA Act extend to the power to suspend an employee with pay. That power is recognised by the common law as a power which ordinarily resides with an employer: Gregory v Philip Morris Ltd (1987) 77 ALR 79 at 100. That being so, and given that the very source of the second respondent's capacity to exercise the powers of an employer is found in s 20(1) of the PA Act, it is difficult to see how the second respondent could have exercised the power to suspend Ms Quinn entirely independently of s 20(1). It may have done so under the power given by s 20(1) and a power conferred by the 2009 Agreement. However, once s 20(1) is engaged, the requirements for the exercise of the powers conferred by s 20(1) are also engaged. In those circumstances, the exercise of the power to suspend may require the second respondent to do so in conformity with both the PA Act and also the 2009 Agreement. If there be an argument of inconsistency available under s 109 of the Constitution, no such argument is pressed by the respondents in relation to this interlocutory application. 63 I turn then to explain why I am satisfied that there is a serious issue that Ms Quinn has a private right to sue for statutory breach. The fundamental task involved in an assessment of whether a statute confers a private right of action is an assessment of whether the statute evinces an intention to confer a right of action for breach of the statutory duty: Gardiner v State of Victoria [1999] 2 VR 461 at [24]-[25]. Relying upon the considerations referred to in Gardiner, Ms Quinn contended that s 8 and s 20(3) were not enacted primarily for the general good but were enacted for the benefit of a particular class of persons, namely public sector employees. Further, Ms Quinn argues that the PA Act provides no remedy, or at least no adequate remedy, that would suggest a parliamentary intention to exclude a private right of action. Lastly, Ms Quinn contrasts s 8 and s 20(3) with the provisions of s 7(4) of the PA Act which provide explicitly that the public sector values listed in s 7 do not give rise to a civil cause of action. 64 Whilst the respondents point to s 64 of the PA Act as providing an alternative remedy, that provision provides for a right of internal review which, under s 65(1), may lead only to a non-binding recommendation. A remedy of that kind is arguably not an adequate remedy of the kind that would support a legislative intent to exclude a private right of action. Accordingly, I am satisfied that it is seriously arguable that ss 8 and 20(3) of the PA Act create a private right of action capable of being pursued by Ms Quinn.
Breach of Statutory Duties 65 The asserted non compliance by the second respondent with clause 17 and, more generally, the failure of the second respondent to treat Ms Quinn fairly and reasonably, is put by Ms Quinn in a number of different ways. 66 In doing so, Ms Quinn relies on specific breaches of clause 17.8 but does so in the context of clause 17.1 which sets out the purpose of clause 17 and also 17.6, which deals with procedural fairness. 67 Clause 17.1 is in the following terms: 17.1 The purpose of this clause is to: 17.1.1 support Employees with unsatisfactory work performance to improve their performance to the required standard; 17.1.2 ensure that unsatisfactory work performance is addressed expeditiously; 17.1.3provide for Employee misconduct to be investigated and addressed expeditiously and with minimal disruption to the workplace; 17.1.4reflect the public sector values of integrity, impartiality, accountability and respect with the aim of ensuring that employees are treated fairly and reasonably; and 17.1.5 provide transitional arrangements for the implementation of new unsatisfactory work performance and misconduct process for the VPS. 68 Clause 17.6 is in the following terms: 17.6 Procedural fairness to apply For matters involving unsatisfactory work performance or behaviour, disciplinary action will be consistent with the principles of procedural fairness. 17.6.1 All parties involved in the process will commit to completing it as quickly as practicable. 17.6.2 The Employer must take into account any reasonable explanation of any failure by the Employee to participate, before making a decision 17.6.3 Before commencing formal disciplinary or underperformance processes, the Employer must: 17.6.3(a) tell the Employee the purpose of the meeting; 17.6.3(b) provide the Employee with a copy of the formal disciplinary or underperformance process to be followed; 17.6.3(c) provide a reasonable opportunity for the Employee to seek advice from the Union before the disciplinary or underperformance procedure commences; and 17.6.3(d) allow the Employee the opportunity to provide details of any mitigating circumstances. 69 In respect of those two provisions, particular reliance is placed by Ms Quinn on the expeditious investigation of misconduct referred to in clause 17.1.2 and the aim of ensuring that employees are treated fairly and reasonably, referred to in clause 17.1.4. Ms Quinn contends that the need to observe procedural fairness arises from both clause 17.6 and also the opening paragraph of clause 17.8.1. 70 In that context, it is contended by Ms Quinn that the 10 December 2009 suspension decision was invalid because it occurred prior to the commencement of the investigation. Ms Quinn argues that access to the suspension power is only available once the clause 17.8 process has been commenced. She contends that the process commences under clause 17.8 once allegations of misconduct are provided, as is required by clause 17.8.5(a). She says that when she was suspended on 10 December 2009, she was not advised of any allegations made against her. The evidence supports that contention. Ms Munn's letter of 10 December 2009 contains no specific allegation against Ms Quinn and suggests that allegations are to be put to her at a later time. I accept that there is a serous issue that Ms Quinn was not validly suspended on 10 December 2009. 71 Further, Ms Quinn says, and I accept, that there is a serious issue that compliance with clause 17.8.5(a) requires the provision of allegations sufficient to establish an understanding of the acts, matters or things alleged as the foundation of the charge. That is necessary so as to inform the employer's decision as to whether a suspension is appropriate, and also to enable the employee to respond. 72 The evidence before me strongly suggests that the second respondent had no or little understanding of the acts, matters or things and thus the allegations it wanted to pursue against Ms Quinn until about 12 July 2010, when Ms Bourke provided the Particulars Annexure. That there was no proper foundation for the first decision to suspend is at least arguably supported by the second respondent's abandonment of the first suspension and its adoption of a new decision to suspend on what appear to be very different grounds. 73 It is to be observed that unlike the Original Allegations, the Substituted Allegations do not assert that Ms Quinn failed to follow directions of the Magistrates Court of Victoria and the Federal Court. Nor do they assert that her actions exposed the Chief Commissioner of Police to potential actions for contempt of court, or that her failure to implement policy and procedures had occurred in circumstances of repeated requests by senior management. The changed basis for the new suspension tends to confirm that there was not a proper basis for the Original Allegations and thus the first suspension. 74 The capacity to suspend in clause 17 arises in relation to allegations of misconduct and not in relation to allegations of unsatisfactory work performance. It seems to me seriously arguable that to utilise the suspension power the employer must at least have a reasonable basis upon which to believe that there has been misconduct. I shall say more shortly about what is required for misconduct. However, on the facts as they stand, there is a real doubt that the second respondent had any real understanding prior to 12 July 2010 of what it was alleging Ms Quinn had done and how that could constitute misconduct. In that context it is seriously arguable that the power to suspend was utilised prematurely and invalidly. 75 There are other criticisms made by Ms Quinn in relation to the process which followed the initial suspension. Those criticisms include claims of contravention of clause 17 relating to the manner in which investigations were conducted by Acting Superintendent Sheehan and Mr Wittmack. These criticisms include that there was no investigation conducted of the kind contemplated by clause 17 and instead there was no more than a "desk top" review of the Ombudsman's Report. Additionally, the secretive nature of those investigations is attacked. Further, Ms Quinn says (and it appears to be the case) that Mr Wittmack made findings adverse to Ms Quinn, without Ms Quinn even knowing about his investigation let alone having an opportunity to respond to any allegations made. 76 There is substance in all of these complaints and I am satisfied that it is seriously arguable that Ms Quinn was invalidly suspended between 10 December 2009 and 14 July 2010. However, given the further decision to suspend Ms Quinn, the real question is what impact (if any) does the first suspension have upon the validity of the new decision to suspend Ms Quinn. 77 Ms Quinn's challenge to the new suspension decision is largely based upon the unfairness occasioned upon her by the fact of and the events surrounding the first suspension. She contends that by reference to the statutory requirement that she be treated fairly and reasonably (including the requirement of fairness and expedition in clause 17), the second respondent's power to suspend must be exercised fairly and reasonably. Ms Quinn argues that this was not done in relation to the new suspension decision. 78 The respondents accept that the second respondent's power to suspend is conditioned by implied restraints, but they say that the only implication to be drawn is that the power is not to be exercised mala fides. I am not satisfied that clause 17 is to be so narrowly construed, particularly given the specific objects of the clause which require expedition and fair and reasonable treatment. Nor is the overriding statutory duty of fairness and reasonableness emanating from ss 8 and 20(3)(c) consonant with such a narrow construction. 79 I am satisfied that there is a serious issue to be tried that the power of suspension available to the second respondent is conditioned by the requirement that the employee be treated fairly and reasonably, in the light of the need for the conduct of a proper investigation and also the need to adequately protect the legitimate interests of the employer. I accept, as the respondents contended, that in this respect the objects of s 3 of the PA Act also need to be taken into account by reference to those considerations relied upon by the respondents to resist the grant of relief. 80 In the case of the new suspension decision, I am satisfied that the power to suspend has arguably been exercised without due regard to Ms Quinn's legitimate needs; without any or any sufficient regard to the fact that Ms Quinn had already been suspended for over 7 months in circumstances where her prior suspension was arguably invalid; and, in any event, without regard or sufficient regard to the fact that the delay in the processing of the investigation has been very long and largely inexcusable. In that last respect, there is nothing before me which explains why a proper process for identifying the alleged misconduct was not commenced in December 2009 and why the relevantly small number of allegations now being pursued from a small number of sources, could not have been readily identified within a short period thereafter. 81 I note, in arriving at my conclusion, that in her letter of 14 July 2010 advising of the basis of the new suspension decision, Ms Munn does not advert to the considerations that I have just identified, nor to the non-pecuniary prejudice which Ms Quinn has suffered and will suffer to which I refer to further when considering the balance of convenience. 82 Reference is made by Ms Munn to a number of considerations taken into account by her in suspending Ms Quinn, including her concerns that the second respondent's needs and interests be protected. I deal further with those matters when addressing the balance of convenience. I have come to the view that whilst those factors are relevant to the proper exercise of the power to suspend and have been taken into account by me, they do not avoid my conclusion that there is a serious issue that despite the duty to do so, Ms Quinn was not treated fairly and reasonably when she was suspended on 14 July 2010. 83 Another factor which may support Ms Quinn's application is an issue as to whether the alleged conduct the subject of the Substituted Allegations could constitute allegations of misconduct or instead is properly to be regarded as allegations of unsatisfactory work performance. The power to suspend under clause 17 only arises in relation to misconduct. As Gillard J said in Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [250] in relation to misconduct: The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature. 84 Commonly, misconduct involves dishonesty, violence or harassment, offensive behaviour or wilful disobedience (but it need not necessarily do so). None of the allegations against Ms Quinn fall into those categories. By reference to the Particulars Annexure, the allegations appear to relate to long-standing and seemingly well-known difficulties in the relations between the staff in the Drug and Alcohol Branch and staff in the FEMU. Some of the alleged conduct dates back to 2003. Most of it relates to conduct in 2004-2006 and the latest conduct identified relates to mid 2007. Those particulars in the fourth and eighth paragraph of the summary which I have annexed to these reasons, occurred (according to Ms Bourke's Particulars Annexure) with the knowledge of senior management. Despite that, the evidence before me is that Ms Quinn has never been the subject of any counselling or disciplinary action. The other allegations do not, on the evidence before me, appear to have been previously reported to senior management. These are circumstances that tend to diminish the seriousness which might otherwise have been attached to the alleged conduct. 85 The evidence also suggests that the at least some of the impugned conduct may have been condoned and that the conduct is no longer available as a ground of misconduct: Australasian Transport Officers Association v Department of Motor Transport (1988) 25 IR 235 at 244. 86 By reference to the definition of misconduct in clause 17.3.1 of clause 17, the respondents contend that misconduct includes a contravention of "a binding code of conduct" and that the Substituted Allegations included such an allegation. I doubt however that it was intended that any breach of a code of conduct is to constitute misconduct within the meaning of clause 17. It is seriously arguable that the non exhaustive definition of misconduct was not intended to travel outside of the common law understanding of that term. 87 Whilst I see some merit in the point, in the absence of responding evidence from Ms Quinn and given that on the evidence I am unable to properly discern the extent to which there may have been condonation, I am not sufficiently satisfied that this ground of challenge raises a serious issue which I should take into account in the determination of this application. 88 Ms Quinn also contended that the requirement in clause 17 for procedural fairness to be observed, included a requirement that she be afforded an opportunity to be heard prior to the making of the new suspension decision. Reference was made to Foster v Secretary to the Department of Education and Early Childhood Development [2008] VSC 504 at [45] to [54]. In that case and in the context of a statutory regime, Kyrou J held that a decision to transfer a teacher to non-teaching duties pending an investigation into allegations of misconduct attracted the hearing rule because of its impact on the ability of the teacher to fulfil his or her professional role and on the teacher's reputation. Kyrou J came to that conclusion despite the absence of an express requirement for natural justice to be observed in relation to a decision to transfer but in light of the common law requirement for compliance with the rules of natural justice where a decision adversely affects rights, interests or legitimate expectations and where the rules of natural justice are not excluded by express words or necessary implication. 89 The decision of the High Court in Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 indicates that the right of an employee to procedural fairness is not easily displaced in the context of the exercise of a statutory power: see at [26], [88], [140] and [159]. 90 The respondents contend that Foster is to be distinguished including because it deals with the construction of an obligation under a statute rather than an obligation under an agreed procedure. However, that contention is based upon the respondents' argument, already dealt with, that it is not seriously arguable that the second respondent acted pursuant to its statutory power and not simply pursuant to the 2009 Agreement. 91 Further and in any event, clause 17.8 expressly provides that "consistent with the requirements of procedural fairness," the processes for dealing with allegations of misconduct and specified in clause 17.8.1 shall be available. The respondents construe this reference as no more than an acknowledgement of the fact that the requirements of procedural fairness are specified by the terms of clause 17.8. The difficulty with that argument is that clause 17.8 does not by its terms set out all of the requirements of natural justice which could be expected to be included in a process such as than established by clause 17. In that respect, the right to be heard is only dealt with in a very general way and the question of bias is not dealt with at all. 92 For reasons to which I will return in considering the balance of convenience, I am satisfied that the new suspension decision has and will have adverse consequences for Ms Quinn, including by affecting her rights, interests or legitimate expectations. Nothing in the statutory context in which I have determined it is seriously arguable that the suspension decision has taken place, suggests that the rules of natural justice are excluded by express words or necessary implication. Further, it is seriously arguable from the terms of clause 17 itself, that the second respondents should have accorded Ms Quinn a right to be heard prior to resolving to suspend her. That is particularly so given the timing and context in which the second suspension occurred. Accordingly, I am satisfied that there is a serious issue to be tried that the second suspension was invalid by reason of the failure to accord Ms Quinn the right to be heard. 93 Ms Quinn also relied on procedural fairness as a basis for her contention that Ms Munn's involvement in the second decision to suspend her is affected by actual or at least apprehended bias. The basis for that contention is that Ms Munn made the first decision to suspend and on 5 March 2010 threatened to terminate Ms Quinn's employment. Other criticisms of Ms Munn are made by reference to her involvement in the secretive nature of the investigations conducted by Detective Inspector Sheehan and Mr Wittmack. 94 Whilst I would be prepared to accept that a serious issue arises that an investigator appointed to investigate misconduct should be free of either actual or apprehended bias in the context of what is required by clause 17, I am not convinced that there is a serious issue that the same obligation arises for an employer exercising the power of an employer to suspend. In any event, given Ms Munn's preparedness to withdraw her letter of 5 March 2010 and that each aspect of her conduct which Ms Quinn seeks to impugn is capable of innocent explanation, I do not think it reasonably arguable that Ms Munn could not have brought an impartial and unbiased mind to making the new decision to suspend.
balance of convenience and discretionary considerations 95 This is not a case in which specific performance of an employment contract is being sought through the remedy of an injunction. The employment contract between Ms Quinn and the respondents is operative and subsists. Like the successful plaintiff in Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633, Ms Quinn seeks a restraint on particular directions given by her employer, including the direction which suspends her from performing work. 96 Despite that, it would be wrong not to give some consideration, in the exercise of my discretion, to the principles relevant to the grant of an injunction to continue an employment relationship, as there are parallels between an order requiring the continuance of an employment contract and an order lifting a suspension. 97 The historical reluctance of courts to grant specific performance of employment contracts needs to be understood by reference to the original rationale. That reluctance was based on two primary considerations - the need for mutual confidence and the perceived need to avoid constant supervision by a court. Courts have increasingly realised that those considerations are no longer as applicable to modern day employment relations as historically was the case: Turner v The Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 at 192-193 per Northrop, Keely and Gray JJ and Gregory v Philip Morris (1988) 80 ALR 455 at 482 per Wilcox and Ryan JJ. 98 Of particular significance to the continuing relevance of the original rationale, is that throughout the length and breadth of Australia, Parliaments have enacted unfair dismissal regimes which provide for the reinstatement of a dismissed employee as an available remedy. These regimes have now been in place for over a generation. Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential: Downe at [462]. 99 That reconciliation may be readily achieved makes the fear of constant court supervision on the grant of specific performance of an employment contract, no more or no less of an impediment than for the grant of any other kind of injunction. Further, as Megarry J said in CH Giles & Co Limited v Morris [1972] 1 WLR 307 at 318 to 319: But I do not think that it should be assumed that as soon as any element of personal service or continuous services can be discovered in a contract the court will, without more, refuse specific performance. Of course, a requirement for the continuous performance of services has the disadvantage that repeated breaches may engender repeated applications to the court for enforcement. But so may many injunctions; and the prospects of repetition, although an important consideration, ought not to be allowed to negative a right. As is so often the case in equity, the matter is one of balance of advantage and disadvantage in relation to the particular obligations in question; and the fact that the balance will usually lie on one side does not turn this probability into a rule.
100 The circumstances of each particular case need to be examined. There ought not be be and there is no longer a fixed rule against specific performance of an employment contract: Turner at 193; Gregory at 482; Downe at [450]; Paras at [38]-[46] and the many cases cited therein including Hill v CA Parsons & Co [1972] 1 Ch 305; Reilly v State of Victoria (1991) 5 VIR 1; Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590; Dietman v Brent London Borough Council [1987] ICR 737; Crisp v Holden (1910) 54 SJ 784; Smith v Mcnally [1912] 1 Ch 816; Jones v Lee [1980] ICR 310; R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 and Baker v Corporation of City of Salisbury (1982) 2 IR 168. 101 Furthermore, the appropriateness of specific performance as a remedy is strengthened by a growing acceptance at common law of the right of an employee to perform work. That recognition has arisen out of changed social attitudes. There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled. 102 As Callinan and Heydon JJ said in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [80]: It may be that in modern times, a desire for what has been called "job satisfaction", and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided. 103 In William Hill Organisation Ltd v Tucker [1999] ICR 291 at 298-299 Morritt LJ (with whom Robert Walker LJ and Stuart Smith LJ concurred) said: But as social conditions have changed the courts have increasingly recognised the importance to the employee of the work, not just the pay. Thus ... Lord Denning MR considered that it was open to a welder to argue that: 'a man has, by reason of an implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done.' (Citations omitted). See further the discussion in Downe at [410]-[431] where the right to work was considered in the context of a suspension. The denial of the work that an employee has been contracted to perform was recognised to have an adverse effect on the employee's enjoyment of his or her employment in Foster at [46]-[47]. 104 It has been said that special or exceptional circumstances need to be shown to justify an order for specific performance of an employment contract: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 per Brennan, Dawson and Toohey JJ. However, as is demonstrated in the cases where specific performance has been granted, the burden of that requirement ought not be considered particularly onerous. As the Full Court said in Turner at 193 "cases where continuing obligations and rights are in question might give rise to such special circumstances". 105 I will approach the exercise of my discretion with these considerations in mind. 106 In support of her claim that the balance of convenience lies with returning the applicant to employment until the determination of the proceeding, Ms Quinn relied on a number of factors. 107 Ms Quinn is an expert in the field of drug and alcohol forensics and is well known in this relatively small field. She practices in a small forensic science community and it is likely that the fact of her suspension has become widely known. She asserts that the damage being caused to her reputation by her suspension is extreme. 108 I accept that Ms Quinn's suspension from her employment is likely to have had a substantial impact on her reputation and that it may impose a stigma that adversely affects her future career prospects: Paras at [29] and [48]; Jones v Queensland Tertiary Admission Centre Ltd [2009] FCA 1382 at [27] and Foster at [46]-[47] and [54]. Much of the loss of reputation has probably been caused by the first suspension but nevertheless, I accept that the new suspension is likely to continue to harm Ms Quinn's reputation and her future career prospects. 109 As a highly skilled professional, Ms Quinn complains that her continued suspension prevents her from exercising her skills. Apart from the skill enhancement involved in her ordinary daily activity, Ms Quinn is a member of a number of national advisory and working groups in her discipline and her suspension prevents her from participating in conferences, working groups and other fora. She says further that her suspension means that a variety of important information disseminated through extensive informal peer to peer networks such as email bulletins is denied to her. Additionally, she is unable to access any continuing professional development and training provided at work. I do not take into account her complaint that she has been unable to access specialist publications not available to the public, as the respondents have now offered to provide her access to such publications. 110 I accept that the continued suspension of Ms Quinn will have a detrimental affect on her ability to develop and maintain her expertise in the use of analytical forensic skills. I also accept that her capacity to maintain her status as an expert is a matter of importance to her and that for that purpose she needs to maintain regular contact with the forensic science community. Whilst the second respondent offered to provide Ms Quinn with a fortnightly briefing in relation to forensic matters occurring in the Drug and Alcohol Branch and the forensic industry and also retraining in any new developments (if she should resume work after the allegations against her are dealt with), it remains likely that the continued suspension will nevertheless cause harm to Ms Quinn's maintenance of her skills and in particular, her capacity to maintain her expertise through direct contact with other experts in her field. 111 I accept that Ms Quinn's suspension has deprived her of the enjoyment and job satisfaction provided by the performance of her work. I also accept that it is likely that the suspension has affected Ms Quinn's health and wellbeing by reason of the embarrassment and stress caused as a result of the suspension. Ms Quinn deposed that she has great difficulty sleeping, has gained weight and suffered hair loss. Her doctor has conducted a number of tests and detected a thyroid problem. An endocrinologist to whom she was referred has informed her that her symptoms may be stress related. Whilst much of that harm is likely to have been caused by the first suspension, the further suspension is likely to continue these adverse affects. That is particularly so if, for reasons which I will deal with shortly, the new suspension is unlikely to be of short duration. 112 Ms Quinn also contended and I accept, that while suspended she is deprived of the opportunity to earn any overtime and on call allowances which in a year would amount to approximately $3,000. 113 Other than for the loss of overtime and on call allowances, the harm to which I have referred is not harm for which damages would be an adequate remedy. 114 The respondents rely on a number of considerations which they contend support the denial of an injunction on balance of convenience grounds. Those grounds are supported by evidence given by Mr Graham Ashton, the current Director of the Forensic Services Centre. Many of those grounds, reflect the considerations taken into account by Ms Munn when making the new suspension decision. 115 I give no weight to the contention that Ms Quinn's continued suspension is necessary in order to provide her with sufficient time to respond to the Substituted Allegations. Ms Quinn was not consulted on that matter prior to being suspended and she rejects that her circumstances would be improved on the basis contended for by the respondents. 116 I do give weight to the need to ensure the integrity and efficacy of the investigation. In that regard, the respondents say, and I accept, that Ms Quinn's resumption of work will put her into direct contact with Senior Sergeant Ritchie and Senior Constable Kavanagh of FEMU and occasional contact with Ms Leonie Hamstra. Each of these individuals has been identified by Ms Bourke as persons whose evidence is relied upon in support of the allegations made against Ms Quinn. 117 There is some controversy as to the extent with which Ms Quinn may need to liaise with these persons. Nevertheless Ms Quinn deposed that she was willing to refrain from discussing the subject matter of the investigation with Senior Sergeant Ritchie, Senior Constable Kavanagh and Ms Hamstra. Further she has indicated a willingness to give an undertaking to the Court to the effect. 118 It is not uncommon that workplace investigations generate the potential for conflict between employees who are required to continue to work with each other. In those circumstances directions can be given and processes established to protect the integrity and efficacy of any current investigation. All of the persons relevantly concerned in this case are professionals working for the Victoria Police and might be expected to have a very good understanding of the need to maintain the integrity and efficacy of the investigation. Further, Ms Quinn has proffered an undertaking designed to protect the integrity of the investigation. In those circumstances, the concern expressed by the respondents appears to me to be overstated. 119 What appears to be the major concern of Mr Ashton and also Ms Munn is the ability of the Forensic Services Centre to effectively perform its functions if Ms Quinn resumes the performance of her work. That concern is put in two ways. Firstly, the capacity of Ms Quinn to properly perform her work including her capacity to interact with other staff and in particular the staff at FEMU. Secondly, there is an expressed concern about the need to maintain public confidence in the integrity of Victoria Police and the Forensic Services Centre, including by reason of the Centre's involvement in the criminal justice system. 120 The nature and seriousness of the allegations made against Ms Quinn is obviously a matter relevant to these concerns. Whilst there can be no doubt that the allegations are serious, none of the allegations involve allegations of corruption, dishonesty, or wilful disobedience. Nor do any of the allegations seek to impugn Ms Quinn's competence as a forensic scientist. As I have said, all of the allegations involve alleged difficulties between Ms Quinn and other staff in the Drug and Alcohol Branch and staff in FEMU. Those difficulties essentially concern procedures and processes relating to the storage and destruction of drugs and other exhibits and auditing and reanalysis procedures to ensure that illicit substances entrusted to the Centre do not go missing and are accounted for. 121 As I have said, whilst the allegations appear to be serious, the force of the respondents' contention that they are serious is somewhat diminished by the fact that the allegations are old, at least some are apparently well known and not the subject of earlier complaints, prior counselling or discipline of Ms Quinn by her supervisors. Additionally, there is no evidence before me of any wrongdoing, or even any allegations of wrongdoing, by Ms Quinn since mid 2007. There is therefore a period of some 18 months of Ms Quinn having performed her work prior to the first suspension, without apparent difficulties, including in relation to her capacity to interact with staff at the FEMU. 122 Furthermore, the Ombudsman's report suggest that the tensions between the Drug and Alcohol Branch and FEMU were in large part the result of the deficiencies of senior management of the Centre. Since the Ombudsman's Report was presented, Mr Ashton has replaced Mr Ross as the Director of the Centre and the person to whom Ms Quinn directly reported has also been replaced with a new Assistant Director of the Chemistry Division. Additionally, Mr Ashton has deposed that he is implementing recommendation 47 made by the Ombudsman and referred to at [13] above. In that respect he has implemented more stringent governance constraints around general conduct of staff of the Centre and greater clarity around the rules under which they operate and the authority and responsibility of management of the Drug and Alcohol Branch in conjunction with other units within the Centre. 123 Whilst Mr Ashton expresses some concern about Ms Quinn returning whilst that review continues, Ms Quinn has deposed to her readiness and willingness to participate in any review and her readiness and willingness to abide by the new processes and procedures which Mr Ashton has implemented. She has specifically deposed to her readiness and willingness to interact with FEMU in accordance with the procedures of the Centre and to deal with any issues on her return to work. 124 In those circumstances, whilst it is unlikely that mutual affection and friendship will blossom in the relations between Ms Quinn and staff at FEMU, I am satisfied that it is likely that there will be a sufficient level of supervision and cooperation between Ms Quinn and those at FEMU with whom she needs to interact, so that difficulties of the kind apprehended by the respondents will be avoided. 125 Mr Ashton asserted that because Ms Quinn is still under investigation, the management by her of her functions (should she return to work) would be open to questions of credibility, and would thus potentially impact on the policing and prosecuting of drug related criminal offences in Victoria. Neither Mr Ashton nor counsel for the respondents could point me to a proper foundation supporting the assertion made by Mr Ashton. In particular, no connection was identified between the conduct which is alleged against Ms Quinn and any of the functions of the Centre which have a direct relation with the policing and prosecuting of drug-related criminal offences. The processes and procedures the subject of the allegations against Ms Quinn all appear to be processes which concern the storage, handling, accounting for and destruction of drugs and other exhibits, subsequent to their use in the criminal justice system. 126 Whilst I agree that it is necessary to maintain public confidence in the integrity of Victoria Police and the Forensic Services Centre, I very much doubt that in the knowledge of this case (as explained by these reasons for judgment), public confidence in the Victoria Police and the Centre will, to any significant degree, be shaken by Ms Quinn resuming her work. 127 I have also given consideration to the length of time that Ms Quinn may remain suspended pending the completion of the investigation. Given what has occurred to date and given that there are already fresh issues which have arisen in relation to the validity of Ms Bourke's investigation, I am not confident that the investigation will be concluded quickly. One of the issues that Ms Quinn has raised in relation to Ms Bourke's investigation is the validity of Ms Bourke conducting the investigation in circumstances where she has been involved in identifying and formulating the allegations made against Ms Quinn. It may be the case, if Ms Quinn's contention is correct, that a new investigator will need to be appointed. This is not a matter for me to pass judgment on at this juncture, but it is a matter which tends against the conclusion that the investigation of the allegations made is likely to be concluded quickly. If I had been persuaded that any further suspension would be of short duration, I may not have granted the relief sought by Ms Quinn. In the circumstances, I consider it more likely than not that the harm occasioned by Ms Quinn's further suspension is likely to continue for a significant period. 128 The balance of convenience favours the grant of interim relief. Success at final trial, and an award of damages, is not likely to provide an adequate remedy to Ms Quinn by reason of the significant non-pecuniary harm that she is likely to be subjected to. On the other hand, I do not consider that significant hardship will be inflicted on the respondents should an injunction be granted. The expressed concerns of the respondents are, I believe, likely to prove to be overstated. It is likely that workable arrangements can be put in place both to ensure the integrity of the investigation and provide workable arrangements in which Ms Quinn can perform her work without adverse implications for the proper operations of the Forensic Services Centre. 129 Taking into account all of the matters I have referred to, I do not consider that in the exercise of my discretion I should decline to grant relief because the order sought is in the nature of specific performance of an employment contract. If it be necessary, I am satisfied that Ms Quinn has established special circumstances sufficient to warrant the exercise of my discretion to grant relief. This is a case where there are continuing obligations and rights in question, including because of the statutory processes and requirements in the PA Act: Paras at [40].
disposition 130 For the reasons expressed, and given the nature of the rights Ms Quinn asserts and the practical consequences likely to flow from the orders she seeks, I consider that Ms Quinn has made out a prima facie case in the sense identified in O'Neill. An evaluation of the balance of convenience and the discretionary considerations favour the grant of interim relief. Interim relief will be granted on the basis that Ms Quinn has indicated her preparedness to give the usual undertaking as to damages and also an undertaking not to discuss the investigation with Senior Sergeant Ritchie, Senior Constable Kavanagh or Ms Hamstra. 131 If the suspension is to be lifted, the ancillary directions given to Ms Quinn that she not speak to any other Victoria Police employees about the matters of the handling of drug exhibits at Victoria Police and that she not visit any Victoria Police premises ought not be maintained. 132 Accordingly, upon the two undertakings given by Ms Quinn, I will order that until the hearing and determination of this proceeding, or until further order, the respondents be restrained from treating as valid, or acting upon, the directions given to Ms Quinn on 14 July 2010 suspending Ms Quinn from work and requiring her not to visit any Victoria Police premises and not to speak to any Victoria Police employees in respect of the handling of drug exhibits. I will order that the costs of this application be reserved. I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
Allegations are made against Ms Quinn in relation to her participation in an audit process of the drugs held at the Centre. This complaint relates to conduct alleged to have occurred between 18 August 2006 and 19 June 2007. The conduct involves an alleged failure by Ms Quinn to implement commitments said to have been made by her on 18 August 2006 in relation to auditing of personal holdings. It is further alleged that there was "obfuscation as to the information she held in relation to the S1A Store and Sampling and Transfer Station". That conduct is said to have effectively delayed FEMU's capacity to implement Recommendation 14 made by the 2003 CMRD Review in accordance with the processes agreed at a meeting on 18 August 2006. It is further alleged that Ms Quinn failed to provide accurate audit information of the exhibits controlled by the DAB and that this led to a mail out process undertaken in August 2007 based on incomplete information and was therefore an inefficient use of resources. (Particular 1.4)
There are three allegations alleging a delay by Quinn in returning drug items to FEMU for destruction. In relation to these allegations reliance is placed on clause 6.1.1 of the Victoria Police Manual Instruction 114-6 Drugs Police Possession which instructs officers to "retain drugs only for as long is necessary" and clause 6.1.2 which instructs officers to "Dispose of property at the earliest opportunity". Each of the alleged delays relates to the return of drug exhibits from a particular case. The first allegation relates to what is said to be a delay of 8 months (August 2005 to April 2006) or at a minimum 3 months (January 2006 to April 2006). (Particular 2.1). The second allegation relates to a 5 month delay from 21 April 2006 to 1 September 2006 (Particular 2.2). The third alleged delay relates to a 5 week period between 13 October and 27 November 2006. Each of these alleged delays is said to have impeded the official processing of orders for the destruction of exhibits.
The next set of allegations relates to an alleged breach of the Code of Conduct for the Victorian Public Sector (2003) which it is asserted identifies clear standards of performance and employee behaviour, including expectations that any employees will behave co-operatively with each other, demonstrating respect and courtesy. Additionally it is said that the Code identifies an expectation that employees will "provide information to which a person is entitled, promptly and in an easily understood form", and notes that the information should be "accurate, complete and up to date". The first of these allegations relates to conduct of Ms Quinn between 21 April 2006 and 27 September 2006. The allegation relates to attempts made by FEMU to organise the destruction of exhibits held by Ms Quinn in relation to a legal case. It is said that a 6 month delay occurred before accurate information was provided by Ms Quinn that the drugs in question had been consumed in analysis and therefore there was nothing to destroy. That delay is said to have caused an inefficient use of resources. It is also asserted that because Ms Quinn had, in an earlier conversation, implied that the drugs in question were hazardous Clan Lab material and not powder (as later confirmed by her), Ms Quinn failed to provide to a colleague full, timely and accurate information (Particular 3.1). The second allegation relates to the alleged delay of Ms Quinn between 21 April 2006 and 27 July 2006 to confirm that particular exhibits being sought by FEMU for destruction were Clan Lab items (and thus to be destroyed by DAB). It is alleged that that conduct involved a failure to provide full, timely and accurate information to a work colleague and that further the delay in finalising the case was an inefficient use of FEMU resources (Particular 3.2).
It is alleged that Ms Quinn repeatedly failed to respond immediately to emails from Senior Sergeant Ritchie or failed to do so within a short period of time and that this conduct was disrespectful and fell below the standard of behaviour that is expected of a public sector employee. The example provided in respect of this particular relates to a failure to respond to emails sent on 16 December 2005, 28 February 2006 and 28 March 2006; a failure which is alleged to not have been addressed until 24 April 2006. (Particular 3.3)
The last allegation relates to alleged conduct of Ms Quinn said to be disrespectful of Senior Sergeant Ritchie and which is alleged to have occurred at a meeting on 18 August 2006. The content of a short conversation involving Senior Sergeant Ritchie and Ms Quinn is relied upon. It is not clear what particular behaviour and language alleged to have been used by Ms Quinn in that conversation is said to be disrespectful. The alleged conversation does suggest (on the basis of an account given by Senior Sergeant Ritchie, but not others) that in response to Senior Sergeant Ritchie's question as to whether there was some reason why Ms Quinn could not return particular exhibits, Ms Quinn yelled that she would return the drugs in her own time and that Senior Sergeant Ritchie was not her boss.
Quinn
Overland
FCA 622 R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Reilly v State of Victoria (1991) 5 VIR 1 Smith v Mcnally [1912] 1 Ch 816 Smith v University of Ballarat (2006) 229 ALR 343 Turner v The Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 William Hill Organisation Ltd v Tucker [1999] ICR 291
[2008] VSC 504
(1988) 25 IR 235
(2001) 208 CLR 199
(2006) 227 CLR 57
(1982) 2 IR 168
(1968) 118 CLR 618
(2005) 221 CLR 539
(1985) 5 FCR 464
(1995) 185 CLR 410
(2008) 71 NSWLR 633
(1988) 80 ALR 455
(1987) 77 ALR 79
(2005) 224 CLR 44
(2001) 107 IR 117
(2006) 229 ALR 343
(1984) 6 FCR 177