Beck v Leichhardt Municipal Council
[2002] FMCA 331
•6 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BECK v LEICHHARDT MUNICIPAL COUNCIL | [2002] FMCA 331 |
| HUMAN RIGHTS – Allegations of discrimination because of disability – rare disease causing visual impairment – intention to terminate employee on the basis of medical condition – application for continuation of interim injunction granted previously – determination of status quo – whether ex parte there was a ‘genuine issue to be tried’ – balance of convenience test. |
Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Family Law Act1975 (Cth)
McIntosh v Australian Postal Corporations [2001] FCA 1012
| Applicant: | ANDREAS JOSEF BECK |
| Respondent: | LEICHHARDT MUNICIPAL COUNCIL |
| File No: | SZ 1181 of 2002 |
| Delivered on: | 6 December 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 5 December 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Barnes |
| Solicitors for the Applicant: | White Barnes Solicitors |
| Counsel for the Respondent: | Ms C Ronalds |
| Solicitors for the Respondent: | M C Lyons Solicitor |
ORDERS
The respondent is restrained until seven days following the termination of his complaint to the Human Rights and Equal Opportunity Commission dated 19 November 2002 from terminating the applicant's employment for any reason associated with, arising out of or otherwise connected with the matters referred to in the said complaint.
The applicant shall remain on directed sick leave until his sick pay credits with the respondent have been exhausted and thereafter shall be placed on leave without pay pursuant to the industrial award under which he is employed.
The parties shall have liberty to apply to this court for reconsideration of these orders in the event of a significant change in circumstances including any significant delay in the procedures before the Human Rights and Equal Opportunity Commission.
No order as to costs of the ex parte application.
Respondent to pay the applicant’s costs of the application pursuant to the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 851 of 2001
| ANDREAS JOSEF BECK |
Applicant
And
| LEICHHARDT MUNICIPAL COUNCIL |
Respondent
REASONS FOR JUDGMENT
On 22 November 2002, the applicant came before me seeking an injunction under section 46PP of the Human Rights and Equal Opportunity Commission Act. The Act is in the following form:
46PP Interim Injunction to maintain status quo, etcetera.
At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrate's Court may grant an interim injunction to maintain:
a) the status quo, as it existed immediately before the complaint was lodged; or
b) the rights of any complainant, respondent or affected person.
Subsection 4 allows the court to discharge or vary an injunction granted under this section.
The applicant moved on an affidavit dated 19 November 2002 in which he deposed to being a council worker in the employ of the respondent for approximately 15 years. For the last six years he had been employed as a waste service officer and his duties involved the collection of domestic or industrial waste within the council area.
The applicant stated that he was diagnosed with Stargardt's disease in or about January to February 2000. Stargardt's disease manifests itself in visual impairment. The applicant informed his employer of the diagnosis but it would appear from his affidavit that he continued to work as a waste services operator. However, in about June 2002 following a work-related injury he was placed on light duties.
The duties he was offered were clerical duties. He advised the council that he was unable to undertake these duties because of his visual impairment. Thereafter the council arranged for a number of medical assessments to be made of the applicant. In mid-July 2002 the applicant took annual leave from the respondent until 13 August 2002. When he returned home at the end of his holiday he received a letter from the respondent dated 7 August 2002 instructing him to remain on sick leave. A copy of that letter is annexed to his affidavit as annexure D.
The respondent's letter indicated that it was the council's intention to arrange for a vocational assessment to assist in identifying his transferable skills, experiences and interests. It is the applicant's evidence that no such vocational assessment has taken place involving an interview with him. A task analysis was undertaken but the applicant was not involved in it remaining on sick leave at the instruction of the respondent.
The applicant deposes that on 13 November 2002 he attended a meeting with the council's Human Resources Manager and other persons including his union delegate. He stated that at this time the respondent (presumably by one of its officers) informed him that it was their intention to terminate his employment and that such intention would be confirmed in writing. He believes that the termination would be on the basis of his medical condition.
The applicant deposed to his belief that the termination of his employment was discriminatory and in breach of the Disability Discrimination Act 1992 (Cth). He believed he could do the work required of a labourer and fought to ensure that his employment was not terminated.
After hearing this evidence and noting that the applicant had made an application to the Human Rights and Equal Opportunity Commission for conciliation of his claim against the council I decided to grant the injunction requested. I made orders to bring the matter back before me at the earliest possible opportunity taking into account that I was about to leave for interstate circuits.
The matter came back before me on 5 December when the respondent was represented. The applicant moved for a continuation of the injunction, which the respondent resisted. The applicant was called and was cross-examined upon his affidavit. I do not think that there was anything in that cross-examination which would have affected my decision in this matter. What I have been able to glean from the cross-examination and the fact that a witness from the council was available to give evidence but did not do so is that paragraph 23 of the applicant's affidavit, in which he indicates that the council advised him they intended to terminate his employment, is not denied.
The respondent has argued that in considering whether or not to grant this interim injunction I should take into account the following matters:
(1)Whether there is a serious question to be tried.
(2)What is the balance of convenience between the parties?
(3)Can the matter be resolved without an injunction on the basis of undertakings proffered?
(4)If I am minded to grant an injunction the council should be protected from it having any indefinite effect.
The respondent also argues that as the injunction is intended to maintain the status quo as it existed immediately before the complaint was lodged I should look at the situation as at August when as council argues it had formed the view that the applicant was no longer able to carry out his employment. I am not clear whether this is the correct date. It is much more likely that the respondent came to this view after the task analysis had been conducted by Ms Ballard in September.
The applicant argues that the status quo that he seeks to maintain is the status of him as an employee of the council currently on sick leave and entitled to all the benefits that employment with the council under the relevant award brings.
The undertakings that were proffered by the respondent were in the following form:
(1)That the respondent will expeditiously arrange for a full vocational assessment of the applicant to ascertain his skills and qualifications,
(2)After receiving that full vocational assessment, the respondent will expeditiously conduct a further review to ascertain if any alternate employment options are available for the applicant on the basis of the vocational assessment,
(3)After the process set out in Undertaking #2 and if no alternate employment is available based on his current skills and qualifications, the respondent will ascertain whether there are any alternate employment options which require the applicant to undertake retraining and if so, the extent of that retraining and the capacity of the applicant to undertake such retraining,
(4)At the completion of the steps in Undertaking #3, the respondent will enter into negotiations with the applicant to ascertain whether he is willing or able to undertake any identified retraining operations,
(5)The respondent will not terminate the applicant’s employment during the period that the steps set out in Undertaking #1 to #4 are being undertaken,
(6)In relation to any proceedings in any jurisdiction, except workers’ compensation proceedings, the respondent will not permanently fill the position currently held by the applicant until the completion of any such proceedings,
(7)To approach the Human Rights and Equal Opportunity Commission jointly with the applicant for the complaint lodged by the applicant on 19 November 2002 to be dealt with expeditiously,
(8)To not victimise the applicant because he has lodged a complaint alleging discrimination on the ground of disability in breach of the Disability Discrimination Act 1992 (Cth).
It will be seen that these fall short of maintaining the applicant in employment once the various assessments have taken place although in paragraph 6 a significant concession is offered which would enable an order for reinstatement to be made without difficulty.
The applicant offers a concession of his own. This is that upon the exhaustion of his current sick leave entitlements he will consent to being placed on leave without pay pending the finalisation by the Human Rights & Equal Opportunity Commission of his complaint provided that this will be "without prejudice" to his and the respondent's rights in relation to any subsequent contested proceedings relating to the applicant's alleged discrimination, including claims for damages and/or compensation, relating to the period of leave without pay, and/or any other remedy or available order.
It is my view that the usual requirement of an interim injunction that there is a "genuine issue to be tried" means in the context of this section of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), that a dispute exists which is capable of being conciliated by the Commission under the jurisdiction given to it and that the dispute itself is not fanciful or so lacking in merit that no reasonable commission invested with the powers of the Human Rights & Equal Opportunity Commission would decline to entertain it.
The information provided by the applicant in his affidavit indicates to me that he is a person suffering from a disability as that term is defined in s 4 of the Act. In particular (a). I am satisfied there exists a dispute between the applicant and the respondent as to whether or not the applicant is fit to carry out his duties and there is a further dispute as to whether or not the respondent would be entitled to terminate the applicant on the grounds set out at s 15(4) of the Act, usually described as the "inherent requirements" section. It follows that I am satisfied that there is a real issue to be tried between the parties.
The respondent did not address the balance of convenience argument in terms. It would no doubt argue that it should be allowed to do with its employees according to law and that it would comply with any direction conciliated by the Commission or awarded by the court requiring it to reinstate the applicant if it had previously dismissed him. It maintains that it has a duty to its ratepayers and other employees as well as the public at large to ensure that a person who is not able to carry out the "inherent requirements" of his employment should not do so.
I have considered the respondent’s arguments as to what constitutes the status quo. Bearing in mind that the HREOC Act is one intended to assist in the elimination of discriminatory conduct I believe it should be interpreted benevolently. I would find that the status quo as it existed immediately before the complaint was the situation of an employee, on directed sick leave, in dispute with his employer as to whether or not he was able to carry out his normal employment tasks. It would be altering that status quo if the employer were to terminate the applicant's employment.
In looking at the balance of convenience I am unable to see any real disadvantage to the respondent if the applicant remains on its books as an employee utilising his current sick leave entitlements and then going on leave without pay as he is entitled to do under his award. On the other hand there are real advantages to the applicant in remaining "on the councils books" whilst this dispute is conciliated. He will retain seniority and his accrued rights. He will not be put to any election in regard to applying for a full disability payout and he will not have to cash out any accrued entitlements.
Ms Ronalds was kind enough to provide me with a copy of what appear to be the only relevant decision on s 46PP that of McIntosh v Australian Postal Corporations [2001] FCA 1012. In that case Heerey J declined to grant an injunction saying:
“ Fundamental to this question is the frank concession at the outset by senior counsel for the applicant that the applicant did not disagree that the employment relationship had broken down and that it was unlikely this relationship could continue in the future.”
At [12]:
“The status quo in this context means, I think, a working employment relationship which is at least potentially capable of being continued after the processes of the Commission have been put into effect. That is not the case here. So the application for an interim injunction will be dismissed.”
I do not think this case assists the respondent. The facts are simply too different. The undertakings offered by the respondent establish that the working relationship between the parties has not broken down. However, to my mind they do not adequately protect the applicant and I would therefore propose to grant the interim relief sought. I am mindful that the relief must not be indeterminate and I would therefore make the following orders:
(1)(1) The respondent is restrained until seven days following the termination of his complaint to the Human Rights and Equal Opportunity Commission dated 19 November 2002 from terminating the applicant's employment for any reason associated with, arising out of or otherwise connected with, the matters referred to in the said complaint.
(2)(2) The applicant shall remain on directed sick leave until his sick pay credits with the respondent have been exhausted and thereafter shall be placed on leave without pay pursuant to the industrial award under which he is employed,
(3)The parties shall have liberty to apply to this court for reconsideration of these orders in the event of a significant change in circumstances, including any significant delay in the procedures before the Human Rights and Equal Opportunity Commission.
Costs
In her submissions on costs Ms Ronalds makes an interesting point concerning the application of Part IV of the Federal Magistrates Court Rules which deals with urgent applications and in particular in relation to the evidence which is dealt with in rule 5.03. One of those requirements is that unless the court otherwise orders the applicant must establish by affidavit, or with the leave of the court, orally, the steps that have been taken to tell the respondent or the respondent's legal representatives of the applicant's intention to make the application or the reasons why no steps were taken.
The Federal Magistrates Court rules were created with two forms of jurisdiction in mind and one of those jurisdictions was that under the Family Law Act1975 (Cth). Some of these rules reflect concerns, which are more prevalent in matters coming under that Act than matters coming under what is sometimes described as General Federal Law.
The provision for an injunction in s.46PP of the HREOC Act is a provision in the nature of a quia timet injunction. The party comes to the court on an ex parte basis because he fears that the situation might change and could change before a court is seized of the dispute.
I was satisfied from the evidence that was produced to me on 22 November, which is the affidavit to which I have previously referred, that there was a real possibility that the applicant was to be dismissed and if he had told the Council that he proposed to seek an interim injunction under s.46PP it might have led to his immediate dismissal.
That is the why I granted the application. At no time was it intended that the order would pre-judge any issue to be raised on an application for a lengthier injunction. I cannot make any findings about what the Council might have done if it had been told. Because of that I do not think it is fair that the Council should bear the costs of the original application. I think, in regard to that, there should be no order.
In regard to the hearing yesterday it is my view that costs should follow the event. Although the respondent did put forward certain proposals I found that they were not sufficient to protect the applicant and I gave the applicant the injunction he requested. The respondent must therefore pay the applicant's costs to be calculated in accordance with the Federal Magistrates Court Rules.
I certify that preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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