Mrs Margaret Mcivor Was Employed by the Hopevale Community Council in About February 2002

[Extract from Queensland Government Industrial Gazette, dated 12 August, 2005, Vol. 179, No.17, pages 720-721]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Margaret Joan McIvor AND Hope Vale Shire Council (No. B464 of 2005)

COMMISSIONER BECHLY 1 August 2005

DECISION

Mrs Margaret McIvor was employed by the Hope Vale Shire Council to drive a mini bus in the Cairns district to transport Hope Vale Community Members who lived in Cairns from their homes in and around Cairns to the Cairns Base Hospital for regular medical treatment including renal dialysis. Hope Vale is situated north of Cooktown and Mrs McIvor was a member of the Hope Vale Community but, at the time, was residing in Cairns. The bus was not entirely suited to the patient’s requirements as it had no wheel chair access facilities. A number of the Community Members using the service required the use of wheel chairs.

During 2004 some issues were raised with the Council about the level of service provided by Mrs McIvor in Cairns and on 27 April a decision was made by the Council to cease the service from 1 May 2004 and that the bus should be returned to Hope Vale. Arrangements were put in place for Community Members in the Cairns district to be transported to the hospital by other service providers.

Mrs McIvor was informed of this decision by letter on the same day. She was also informed that “Whilst the matter is being resolved Council has instructed that the staff directly involved with the service will be renumerated (sic) their entitlement of 16 hour CDeP.”. She was invited to a meeting on 16 June 2004 to discuss the matter. She was paid a travel allowance for two days to attend the meeting in Hope Vale.

At that time Mrs McIvor’s sister was a member of the Council. Her sister had, prior to an election, been the Deputy Chairman and later the Chairman of the Council. Another sister was the payroll officer of the Council.

The first arrangement was for a meeting on 19 May 2004 but that was deferred to 16 June 2004. Mrs McIvor was provided with written notice of the change. The Council Minutes of 10 May 2004 about the meeting attendance is in the following terms.

“Mrs McIvor to receive a letter from Council to attend a hearing to air her story re: the bus service in Cairns. Mrs Mc (sic) to be requested to attend on the 19th May meeting. Council will pay 2 x days T/A. Mrs McIvor’s wage to remain as is up to the hearing. CEO to check redundancy for CDEP/Top up.”.

Mrs McIvor was informed in writing of this decision. She attended on 16 June 2004 and there ensued a discussion about complaints prior to the meeting commencing formally. There is no record of what transpired at that meeting in the Council Minutes.

Mrs McIvor says that she expected that a further meeting of the Full Council (some members were absent) would be called to make a final decision. The respondent’s evidence is that it decided that there would be no change to its original decision. In any event the bus service was not resumed.

Mrs McIvor did not perform any duties as an employee of the respondent from that day forward. However she was paid her full wage for a thirty-six hour week for the next almost seven months when the fact that she was being so paid came to the attention of the Chief Executive Officer. By letter of 10 January 2005 Mrs McIvor was given one week’s notice, in writing, of termination of her employment.

It is this decision to terminate he employment which is before the Commission. The decision of the Council to cease the bus service is not a matter for determination by the Commission.

It is clear that once the Council came to a decision to cease the bus service Mrs McIvor’s employment came to an end. She had been employed in area remote from Hope Vale to provide a service to Community members who also lived remote from the community centre of Hope Vale. Once it was determined that that service should cease, Mrs McIvor became redundant.

Whatever was the intention of the Council about what she should be paid at the time surrounding the discussion with her about the bus service, she has been paid her full wage for almost seven months. If treated as a redundancy payment, this would be regarded as a generous amount. 2

There is nothing before me which indicated that the decision to terminate the employment of Mrs McIvor in January 2005 was inappropriate or in contravention of the Act. While there seems to be some confusion about the state of her employment and what she would be paid as at 16 June it is clear that the employment ceased on that date but that she was, apparently inadvertently, continued on the payroll on full pay for an extended period which provided a monetary outcome beyond that which would be available from this Commission if, in fact, it was found that the termination was in breach of the legislation. The application is rejected.

R.E. BECHLY, Commissioner. Appearances: Mrs M. McIvor appearing on her own behalf. Hearing Details: Mr C. Ryall, of Bottoms English Lawyers for the 2005 27 July (Cairns) respondent.

Released: 1 August 2005

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