General protections claims; interim reinstatement

In a reasonably rare exercise of the Federal Court’s discretion to grant an urgent  injunction ordering the interim reinstatement of an employee who had been dismissed and who is contending that it occurred because he had exercised a workplace right, the judge has been influenced by both the economic and non-economic consequence of the termination of an employee’s employment and thus ordered to the maintenance of the status quo pending trial.

Here is an extract from the decision.

 

“Section 341 defines “workplace right”, relevantly, as follows:

(1)       A person has a workplace right if the person:

(a)          is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)          is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

  1. Under s 342(1) of the Act, adverse action is taken by an employer against an employee, if, relevantly, the employer dismisses the employee.
  2. Section 361 of the Act provides:

(1)       If:

(a)          in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)          taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)       Subsection (1) does not apply in relation to orders for an interim injunction.

  1. The relevant legal principles are not in dispute.  Both parties refer to Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, where Greenwood J said at [21]:

The organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65]– [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd(1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants.

(Underlining added).

  1. It is not in dispute that Electrix took adverse action against Mr Bowling.  The dispute is as to the reasons for it.  The respondent says that there is no evidence of a connection between Mr Bowling’s role and activities as a Union delegate and the termination of his employment.  It asserts that they are independent of each other.  Electrix has produced a number of affidavits in which the managers who were involved in, or responsible for, the termination of Mr Bowling’s employment deny that his employment was terminated for any reason to do with his position as a Union delegate……………………………It is not in dispute that Electrix took adverse action against Mr Bowling.  The dispute is as to the reasons for it.  The respondent says that there is no evidence of a connection between Mr Bowling’s role and activities as a Union delegate and the termination of his employment.  It asserts that they are independent of each other.  Electrix has produced a number of affidavits in which the managers who were involved in, or responsible for, the termination of Mr Bowling’s employment deny that his employment was terminated for any reason to do with his position as a Union delegate.
  1. There is some evidence connecting the role of Mr Bowling as Union delegate with the termination of his employment.  Mr Lake made express reference to his position as a delegate when chastising him for not wearing PPE.  It was the failure to wear PPE that led to the chain of events that resulted in this termination.  Mr Bowling also submits that the reasons given for the termination are weak or trivial, which suggests that they were not genuine reasons.  He points to the absence of any evidence indicating that there were verbal or written instructions given to Mr Bowling that he was required to wear PPE on a driving day, or in a situation such as that he was in on 18 October 2018.
  1. It may be said that there is nothing in the Code of Conduct which specifies or indicates that an employee is always required to wear PPE when driving from one place to another or when required to meet a supervisor at a site.  Of course, Mr Bowling may have been required to inspect an asset, which would likely have required him to wear PPE, but the situation never reached that point.  Mr Lake deposes that he was concerned about safety if work was required to be done.  But as I have said, he left without any inspection taking place.
  1. The Code of Conduct does not place any absolute prohibition upon private use of a work motor vehicle.  However, there are restrictions upon private use.  Mr Bowling deposes that he was not given details of the allegations of private use, and the extent of the use does seem to have changed in the respondent’s material from 900 km to 600 km.  He does not appear to have been provided with an adequate opportunity to address the allegation, which may suggest that the reason was not genuine.
  1. I am satisfied that the applicant has demonstrated a prima facie case for relief for contravention of s 340(1) of the Act.  In reaching that conclusion, I take into account that at trial, the onus will be on Electrix to overcome the presumption that arises under s 361(1) of the Act.  It is undesirable for me to say anything more about the strength or weakness of the case.
  1. I am satisfied that the balance of convenience favours reinstatement of Mr Bowling to his employment on an interlocutory basis.
  1. I take into account that Mr Bowling has deposed that he has a mortgage and debts that he will be unable to service without employment, and that he deposes that finding alternative employment is not particularly easy in Rockhampton.  In that regard, he has checked online for available jobs that are suitable for him, but has not been able to find any.
  1. Of particular importance is that I consider that compensation would not be an adequate remedy.  There is likely to be a personal and psychological impact upon any person as a result of forced unemployment.  It is likely to take at least six months before the matter proceeds to trial.
  1. The managers from Electrix have deposed that they have lost their confidence and trust in Mr Bowling as a result of his conduct.  However, I consider that the reasons given for the termination of his employment are not such as to demonstrate that they would be unable to work with him in a productive manner.
  1. For these reasons, I consider that an interlocutory injunction should be granted requiring Electrix to reinstate Mr Bowling until the hearing and determination of his proceeding or until further order.”

 

CEEEIPP and ASU v Electrix Pty Ltd (2018) FCA 1879 delivered 16 November 2018 per Rangiah J