Brown v Brown-Denarusha Pty Ltd
[2015] FCA 1365
•14 August 2015
FEDERAL COURT OF AUSTRALIA
Brown v Brown-Denarusha Pty Ltd [2015] FCA 1365
Citation: Brown v Brown-Denarusha Pty Ltd [2015] FCA 1365 Parties: ADRIAN BROWN v BROWN-DENARUSHA PTY LTD and DENSIL HICKMAN File number: VID 416 of 2015 Judge: TRACEY J Date of judgment: 14 August 2015 Catchwords: INDUSTRIAL LAW – application for interlocutory order for reinstatement to former employment – whether serious question to be tried – whether balance of convenience favours granting of interlocutory relief Legislation: Fair Work Act2009 (Cth) s 351(2) Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – cited Date of hearing: 14 August 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr N Harrington Solicitor for the Applicant: Harrick Lawyers Counsel for the Respondents: Mr C O’Grady Solicitor for the Respondents: Baker and Mackenzie
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 416 of 2015
BETWEEN: ADRIAN BROWN
ApplicantAND: BROWN-DENARUSHA PTY LTD
First RespondentDENSIL HICKMAN
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
14 AUGUST 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for interlocutory relief be refused.
2.Pursuant to r 28.03 of the Federal Court Rules, the proceeding be referred to mediation by a Registrar of the Court. The mediation be conducted on 10 September 2015 at 9:30 am before Registrar Ryan. In the event that the matter does not settle at the conclusion of the initial mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The mediator is to report the result of the mediation / case management conference to the Court as soon as possible after the mediation.
3.The applicant file and serve a statement of claim on or before 28 August 2015.
4.The respondents file and serve any defence to the statement of claim on or before 8 September 2015.
5.The applicant file and serve any further material upon which he seeks to rely at trial on or before 25 September 2015.
6.The respondents file and serve any further material upon which either of them seeks to rely at the trial on or before 9 October 2015.
7.The applicant file and serve any material in reply on or before 23 October 2015.
8.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 416 of 2015
BETWEEN: ADRIAN BROWN
ApplicantAND: BROWN-DENARUSHA PTY LTD
First RespondentDENSIL HICKMAN
Second Respondent
JUDGE:
TRACEY J
DATE:
14 AUGUST 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mr Adrian Brown, is a working director of the respondent. Until last year, he was the company’s managing director.
On a number of occasions during 2014, fellow directors noticed that Mr Brown smelt of alcohol and appeared to be under its influence during working hours. Matters came to a head when Mr Brown recorded a blood alcohol reading of .068. He took a period of leave in order to obtain medical assistance for his drinking problem. He was replaced as managing director. Since early this year, Mr Brown and the company have been engaged in negotiations with a view to him returning to work in a different capacity.
Those negotiations have thus far been unsuccessful.
Coincidentally, Mr Brown’s fellow directors have commenced to investigate various transactions which Mr Brown entered into on behalf of the company during his period as managing director.
Concerns have been expressed about the possibility of conflicts of interest and financial irregularity. Little, if anything, has been done on either side in relation to the negotiations and the investigation since May 2015. Correspondence relating to both matters remains unanswered by Mr Brown.
In 2015, Mr Brown commenced a proceeding in the Fair Work Commission, alleging that the company had taken adverse action against him by reason of mental disability. Attempts to resolve the outstanding issues were unsuccessful.
Mr Brown commenced the present proceeding on 7 August 2015. He has sought an interlocutory order that he be reinstated to his former employment on the terms and conditions which applied immediately before his departure on 8 September 2014.
Both parties agree that an early mediation of their dispute would be useful and that, if need be, there should be a speedy trial.
The principles which guide the exercise of the Court’s discretion to grant or refuse interlocutory relief are well established. They require an applicant to demonstrate that there is a serious question to be tried and that the balance of convenience favours the granting of interlocutory relief: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-4.
Mr Brown contends that the company has taken adverse action against him by reason of his mental disability “in the form of an addiction to a substance – alcohol”. Whilst there is some evidence before the Court to support the claim that Mr Brown is, or was, addicted to alcohol, there is no evidence that such an addiction arises from mental disability. Mr Brown has not received any specialist medical attention.
Issues also arise under s 351(2) of the Fair Work Act2009 (Cth) having regard to the impact that alcohol consumption has had and may in the future have on Mr Brown’s capacity to perform his duties.
On the material presently before the Court, it cannot be said that Mr Brown has a strong case. Mr Brown raises a number of issues which he submits tilts the balance of convenience in his favour. They include the ongoing stigma and harm to his reputation caused by his effective suspension, his loss of job satisfaction and the financial hardship which he says he is experiencing.
There are, however, countervailing considerations. The company has been adversely affected by Mr Brown’s past conduct whilst under the influence of alcohol. It has been prepared to allow him to continue to work on the condition that he was at no time during working hours under the influence of alcohol, only to see this condition breached after a few months.
Since early this year, the company has expressed a renewed willingness for Mr Brown to return to work, provided that he accepted certain conditions, some of them stringent. Thus far, Mr Brown has not been prepared to accept such conditions.
It is about six months since the conditions were proposed. The long delay in commencing the proceeding has not adequately been explained. In the circumstances, I do not consider that it is appropriate that interlocutory relief should be granted at this stage.
A better course will be for there to be a mediation at the earliest opportunity. The submissions made by counsel strongly suggest that there is scope for an appropriate regime to be put in place under which Mr Brown could return to work in a revised role and remain free of the influence of alcohol at least during working hours.
The matter will be referred to mediation.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 4 December 2015
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