Injunctions in fair work cases

This is an interesting Federal Court decision on an application for an interlocutory injunction to restrain an employer from dismissing an employee pending a resolution of the employee’s general protections claim and contains the legal principles involved.

“CONSIDERATION

3    The key questions requiring determination by the Court in relation to an application for interlocutory injunctive relief are whether:

There is a serious question to be tried as to the applicant’s entitlement to relief;

The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

The balance of convenience favours the granting of an interlocutory injunction.

(Australian Broadcasting Corporation v O’ Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J)

4    The matter came before the Court for hearing as a duty matter at 5pm (AEST) on 21 December 2022 seeking urgent interlocutory relief on the basis that a decision was to be made in line with the second respondent’s representations by 2pm (AEST) 22 December 2022. As such, the matter proceeded to hearing with limited oral submissions. However, it is plain that the key issue before the Court is whether there is a serious question to be tried.

Serious question to be tried?

5    The applicant seeks a broad range of relief in the originating application. It is convenient to consider whether there is a serious question to be tried in respect of each form of relief, in turn.

6    First, the applicant seeks declarations that the first respondent has contravened s 340 and s 351 of the FW Act by the nominated conduct. Both ss 340 and 351 can be found in Part 3.1 of the FW Act which deals with General Protections. Section 340 provides:

Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).

7    “Workplace right” and “adverse action” are defined by s 341 and s 342 respectively.

8    Section 351 deals with discrimination, and provides:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti-discrimination law:

(aa) the Age Discrimination Act 2004;

(ab) the Disability Discrimination Act 1992;

(ac) the Racial Discrimination Act 1975;

(ad) the Sex Discrimination Act 1984 ;

(a) the Anti-Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti-Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti-Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti-Discrimination Act of the Northern Territory.

9    The evidence before the Court is minimal. I note however that it is not disputed by the respondents. I also note that, at this interlocutory stage, it is reasonable for the Court to accept evidence at a lower standard than might be required at a substantive hearing: Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294; [1978] FCA 27, Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 at [13], Bettles as trustee of the bankrupt estate of Bruce v Bruce [2021] FCA 1248 at [57].

10    However even noting the relative paucity of the evidence, I am not persuaded there is a serious question to be tried that adverse action was taken by the first respondent against the applicant because she had, or exercised, or proposed to exercise, a workplace right. Rather, such evidence as is before the Court strongly indicates that the respondents terminated the employment of the applicant because of a belief that she had not complied with the APS Code of Conduct, and had not been truthful in the information she had provided in the course of being interviewed by the first respondent. There is no evidence of substance which suggests that the first respondent terminated the applicant because she is a Muslim and wears a veil, or because she asked about permanent employment. Whether the first respondent, and the second respondent, were fair and reasonable in taking the approach they did in proposing to terminate the applicant’s employment is a different issue, but not one which is encompassed by ss 340 or 351.

11    Second, the applicant claims contravention of s 50 of the FW Act in respect of the Department of the Environment and Energy Enterprise Agreement 2016–2019 (Agreement) by its conduct in failing to comply with the Agreement in respect of the manner in which it proposed to terminate the applicant’s employment. Section 50 provides:

Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

12    Having heard the parties yesterday there appears to be some dispute over the application of the Agreement. I am prepared to accept, for present purposes, that the Agreement applies to the terms of employment of the applicant. Having regard to the Agreement I note that cl 7.2 provides that probation is generally six months, and that cl 7.3 provides that all employees covered by the Agreement are required to participate in the first respondent’s performance and development scheme which provides each employee with regular opportunities to discuss performance expectations. I also note that cl 7.4 allows a manager to initiate formal underperformance management procedures in appropriate circumstances, designed (inter alia) to ensure natural justice and procedural fairness. Clauses 7.51-7.53 provide for termination of non-ongoing employment.

13    In my view, based on the evidence before me, there is no serious question to be tried that any of these clauses have not been adhered to by the respondents.

14    I note however that cl 7.55 of the Agreement provides:

Nothing in this Agreement prevents the Delegate from terminating the employment of an employee for serious misconduct, without further notice or payment in lieu, in accordance with the FW Act, subject to compliance with the procedures established by the Secretary under section 15 of the PS Act for determining whether an employee has breached the Code of Conduct.

15    Section 15 of the Public Service Act 1999 (Cth) relevantly provides:

(2A) A person who is, or was, an APS employee is taken to have breached the Code of Conduct if the person is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have, before being engaged as an APS employee:

(a) knowingly provided false or misleading information to another APS employee, or to a person acting on behalf of the Commonwealth; or

(b) wilfully failed to disclose to another APS employee, or to a person acting on behalf of the Commonwealth, information that the person knew, or ought reasonably to have known, was relevant; or

(c) otherwise failed to behave honestly and with integrity;

in connection with the person’s engagement as an APS employee.

(3) An Agency Head must establish written procedures in accordance with this section for determining:

(a) whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and

(b) the sanction (if any) that is to be imposed under subsection (1) on an APS employee in the Agency who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)).

(4) The procedures:

(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and

(b) must have due regard to procedural fairness.

16    Section 15 of the Public Service Act plainly contemplates the most egregious conduct by an employee, warranting summary dismissal. As I have already noted, the evidence is that the first respondent proposes to terminate the applicant for reasons associated with information she provided referable to her previous employment with another Commonwealth department and the circumstances in which she left that previous employment. There is evidence that the first respondent, through the second respondent, communicated with the applicant in relation to such concerns, and provided her with the opportunity to respond.

17    There is also evidence however that the applicant had informed the first respondent of the circumstances of her cessation of previous employment and that she had sought more information and more time from the first respondent to respond to their concerns.

18    On the basis of the evidence it is not clear to me that the processes of the first respondent in which it engaged in relation to the applicant have been in compliance with s 15 of the Public Service Act. This is notwithstanding the correspondence annexed to the affidavit of Mr Attia indicating the process in which the parties have participated. I also note that the process initiated by the respondents to terminate the applicant was six months after she had commenced working for the first respondent and apparently the day before she was due to take leave over the Christmas break. I consider that there is a serious question to be tried as to whether the Agreement has been contravened in respect of the processes required to be followed by the respondents.

19    I take a similar view in relation to the applicant’s claims of breach of the contract of employment referable to s 15 of the Public Service Act.

Injury and balance of convenience

20    The applicant has relied on evidence of her ill-health resulting from the conduct in question, and her financial position should her employment be terminated as proposed. In such circumstances I am satisfied that damages would not be an adequate remedy to the applicant.

21    I am also satisfied that the balance of convenience favours the granting of an interlocutory injunction. I have some concerns regarding the timing of the present events in light of the probationary period in her employment, and whether the effect of any orders in her favour would somehow compromise the position of the first respondent. The first respondent referred to the decision of Stone J in M v Commonwealth of Australia [2008] FCA 1992, where her Honour similarly considered an application for interlocutory relief brought by an employee terminated at the end of their probation period. I note that the case before her Honour was quite different to that before me, involving consideration of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and her Honour’s view of the compromise to the employer referable to the continuation in employment of the relevant employee. There is insufficient material before the Court to form a conclusion one way or the other on this point. However, I do note that the timing of the termination of the applicant was entirely in the hands of the first respondent. To the extent that the first respondent’s position could be prejudiced by an order in the terms sought by the applicant, I consider that this is a result of their own delay, and in any event would require more detailed material and submissions at trial.

The balance of convenience plainly favours the applicant.

CONCLUSION

22    On balance I am satisfied for the purposes of the present interlocutory application that the orders sought by the applicant should be granted. The proposed orders seek to bind both the first respondent, and the second respondent as decision-maker, which is appropriate in the circumstances. The matter should be remitted to the National Operations Registry for urgent allocation to a Judge of this Court in the ordinary course.”

Assi v Department of Climate Change, Energy, the Environment and Water [2022] FCA 1592 delivered 22 December 2022 per Collier J