Constructive dismissal of Queensland public servant: State’s applications dismissed with costs

Outcome of appeal?

On 4 September 2020, the Queensland Court of Appeal in Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189 dismissed the State’s appeal against orders of Justice Douglas in the Supreme Court of Queensland (Supreme Court), which dismissed the State’s applications. The State was ordered to pay Mrs. Webb’s costs in both the appeal and the earlier interlocutory proceedings.

Mrs. Webb is now able to continue her original proceeding instituted in the Supreme Court.

What happened?

Mrs. Webb had previously worked as a pharmacist at the Sunshine Coast Hospital (Hospital) from 2004 until her resignation in 2016.

Mrs. Webb made complaints of bullying and suspected official misconduct. Towards the end of her employment she was suspended from her duties while an investigation took place.

Mrs. Webb commenced proceedings in the Supreme Court of Queensland claiming damages for constructive dismissal. She alleged numerous failings on the part of Sunshine Coast Hospital had forced her to resign.

Mrs. Webb’s statement of claim pleaded a number of causes of action including wrongful dismissal at common law, misfeasance¹ in public office, breach of fiduciary duty, negligence and unconscionable conduct. Misfeasance in public office is an unusual cause of action and is rarely pleaded successfully.

The State applied for summary judgment (which would dismiss the entire proceedings without a trial), or to strike out parts of Mrs. Webb’s pleading. The summary judgment application was based on an asserted issue estoppel² (the fact that QCAT had decided certain factual issues prevented Mrs. Webb from re-agitating those issues in the Supreme Court). The strike-out application was based on particular technical rules of pleading.

On 19 December 2019, Justice Douglas of the Trial Division dismissed both applications and ordered costs against the State.

The State appealed against Justice Douglas’ orders to the Queensland Court of Appeal. 

The appeal – what were the issues?

The State’s grounds of appeal were: 

1. Justice Douglas erred in holding that there was no issue estoppel arising from the QCAT proceeding, and 
2. Justice Douglas’ reasons were short and inadequate.

Mrs. Webb argued there was no issue estoppel because all that was decided before QCAT was, for example, whether there had been unlawful discrimination constituted by indirect discrimination of the kind prohibited by the statute. That did not prevent Mrs. Webb from agitating distinct factual issues about the basis of particular decisions of the employer.

Mrs. Webb further submitted that it was not necessary in the QCAT proceedings to show the employer was acting maliciously or in bad faith because the relevant section under the Anti-Discrimination Act 1991 (Qld) was objective rather than subjective.

In relation to the strike-out application, the State submitted that particular paragraphs of the pleading were irrelevant narrative, rolled-up pleading, embarrassing or not pleaded properly or contained evidence.

Justice Douglas was not persuaded by the State’s submissions, pointing out that the State could seek and had sought clarification by seeking further and better particulars.

The Court of Appeal found:

• Justice Douglas’ reasons, though short, were sufficient for the purpose. The reasons sufficiently explained the central reasons why Justice Douglas reached the conclusions he did. 
• There was no appellable error in his Honour’s reasoning about issue estoppel.
• On the issue of the application for strike out, one must bear in mind that the matter was a question of practice and procedure and that there are high hurdles in seeking to overturn the exercise of a judicial discretion in that respect.

The Court of Appeal ordered:

• The State’s appeal be dismissed.
• The State pay Mrs. Webb’s costs of and incidental to the appeal.

What happens next? 

Mrs. Webb’s substantive proceeding in the Supreme Court has survived, and the parties can now get on with bringing it to trial or otherwise resolving it. 

Reflections?

The pleaded case is an unusual one because it includes some very infrequently used causes of action. 

Because of the scarcity of locally relevant authorities on misfeasance in public office, and to a lesser extent breach of fiduciary duty, it will be worth keeping an eye on this case if it proceeds. 

The State lost two interlocutory applications involving the same plaintiff and same facts. Will this provide impetus for reflection in regards the substantive matter?

How can we help?

Our Workplace and Employment team are ready to help public sector agencies and (where not conflicted) public sector employees navigate an often complex workplace landscape, which includes continuous consideration of early resolution and cost-effective outcomes.

¹misfeasance - a transgression, especially the wrongful exercise of lawful authority.
²estoppel - the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.