AWU v Dee Vee

The Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia and William John Damen initiated legal proceedings against Dee Vee Pty Ltd in the Fair Work Division of the Federal Court of Australia, alleging that Mr Damen's termination of employment constituted adverse action under the Fair Work Act 2009 (Cth). Mr Damen, who was engaged by Dee Vee as a parcel delivery driver, claimed that his termination was influenced by his union membership and his assertion of entitlements, including superannuation payments and higher remuneration. The applicants sought interim relief, including reinstatement and an injunction to prevent further dismissal, pending the hearing and determination of their application.

The legal issues before the Court were whether the applicants had established a prima facie case of adverse action and whether the balance of convenience favoured the grant of interim relief. The Court had to determine whether the applicants had demonstrated a sufficient likelihood of success at trial and whether the potential injury to the applicants if relief was denied outweighed the injury to the respondent if relief was granted. The Court also considered the nature of the rights asserted and the practical consequences of the interlocutory order sought.

The Court found that there was a serious question to be tried regarding whether Mr Damen's termination was motivated by prohibited reasons, including his union membership and his assertion of entitlements. The termination letter provided no explanation, and evidence suggested that Mr Damen's involvement with the union and the union's claims about his entitlements may have contributed to Dee Vee's decision. The Court noted that even if part of the reason for termination was Mr Damen's alleged negligence, this did not preclude a finding of adverse action under the Act. The Court also found that the balance of convenience favoured granting interim relief due to Mr Damen's age, physical limitations, and dependence on his employment for livelihood. Dee Vee did not demonstrate significant inconvenience if required to continue employing Mr Damen pending trial.

The Court granted the applicants' request for interim relief, ordering Dee Vee to reinstate Mr Damen to his previous position and duties and to restrain Dee Vee from dismissing or terminating Mr Damen or preventing him from performing his duties. The Court also ordered the applicants to provide an undertaking regarding compensation to protect Dee Vee's position if it were successful at trial.