Council Employee Dismissed as ‘Act of Political Retribution’

In the recent case of Carey v Cairns Regional Council [2011] QCAT 26, the Queensland Civil and Administrative Tribunal (Tribunal) has found that a Douglas Shire Council (Council) employee, Mr David Carey, was unlawfully discriminated on the grounds of his political beliefs and activities. 

In finding that Mr Carey’s employment had been terminated by the Council for unlawful reasons, as an act of political retribution, the Tribunal awarded a $368,000 compensation payment against the Council.

Background

Mr Carey was employed as the Council’s General Manager, Community and Corporate Services in 2005.  Mr Carey’s employment with the Council was terminated by a motion put to the last meeting of the Council on 4 March 2008.  The motion was effectively passed on the votes of four Councillors, who voted in favour of it, while two opposed.

The motion carried by the Council did not specify a reason for termination, and neither did the letter sent by the Council’s Chief Executive Officer to Mr Carey, notifying him of his termination.  Mr Carey made a complaint to the Tribunal against the Council and the four Councillors who voted in favour of the motion, alleging his termination was unlawful on the grounds of his having been discriminated against because of his political beliefs and activities.

The Council argued before the Tribunal that Mr Carey’s dismissal was not unlawful.  It submitted that Mr Carey had been terminated because he had mishandled an occuapational health and safety issue, failed to prepare an Enterprise Agreement in accordance with legal requirements and tried to change his own contract of employment.  Further, the Council cited an independent report which noted Mr Carey’s performance issues.

Mr Carey submitted before the Tribunal that his dismissal was not on account of his performance, but rather because of the association of his partner (an environmental activist), with the Council’s Mayor.  His partner and the Mayor were political opponents of many of the Councillors who were present at 4 March 2008 meeting.

Findings

The Tribunal was required to determine whether Mr Carey’s employment was terminated on the grounds of his political beliefs or associations.

The Tribunal refused to accept the reasons proffered by the Council.  It found Mr Carey’s termination at the Council meeting was akin to an ‘ambush’.  No advance notice was given of the motion, and conversations led in evidence before the Tribunal convinced it that Mr Carey’s termination was ‘an act of political retribution’.  The Council, and the four respondent Councillors, were found guilty of unlawful discrimination.

In awarding the $368,000 compensation payment against the Council, the Tribunal noted that, while the individual Councillors would all be found guilty of unlawful discrimination, Section 240 of the Local Government Act 2009 (Qld) provided protection for their actions done ‘honestly and without negligence under the Act’, and as such, no compensation award could be made against them.

Implications for South Australian Councils

Similar protections exist for South Australian employees under both the Fair Work Act 1994 (SA), the Australian Human Rights Commission Act 1986 (Cth) and the Fair Work Act 2009 (Cth).  These Acts either make it unlawful to terminate an employees’ employment on the grounds of political opinion, or provide other general protections in this area.  In most cases, the unlawful discrimination does not have to be the sole reason for termination, but merely a substantial or dominant reason.

The separation of functions between an elected council and a council’s Chief Executive Officer under Section 103 of the Local Government Act 1999 (SA) in South Australian local government means that an identical scenario should not happen in South Australia.  As such, South Australian elected members have no direct role in the appointment, management or termination of staff.  However, councils should be aware of the requirement to ensure employee performance management and termination occurs in an environment where reasons for action are thoroughly documented and communicated, and the principles of natural justice are met.

Failure to adopt appropriate employment management practices could expose councils to unnecessary risks of such claims under any of the applicable legislation.

Please contact Sathish Dasan for more specific advice about the impact of this decision on your workplace.  Sathish can be contacted by telephoning 8210 1253, or by email at sdasan@normans.com.au.

If you find the information in this article useful, please feel free to forward it to someone at your workplace.

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