Cameron v Goldwind Australia Pty Ltd
[2019] FCCA 1541
•6 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMERON v GOLDWIND AUSTRALIA PTY LTD | [2019] FCCA 1541 |
| Catchwords: INDUSTRIAL LAW – PRACTICE & PROCEDURE – Application for interlocutory injunction to restrain respondent employer from proceeding with termination of applicant’s employment – whether applicant has reasonably arguable case that she has a cause of action based on respondent’s alleged contravention of s.351(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant has a reasonably arguable case that claim based on contravention of s.351(1) of the FW Act is barred by s.351(2)(a) in combination with the Anti-Discrimination Act 1977 (NSW) – whether applicant will suffer irreparable injury if interlocutory injunction is not granted but applicant succeeds at final hearing – interlocutory injunction not granted because applicant will not suffer irreparable injury assuming final hearing is heard on an expedited basis. |
| Legislation: Age Discrimination Act 2004 (Cth), Division 4 of Part 4 |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 |
| Applicant: | GAYE CAMERON |
| Respondent: | GOLDWIND AUSTRALIA PTY LTD (ABN 32 140 108 390) |
| File Number: | SYG 1240 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Lowson |
| Solicitors for the Applicant: | Holman Webb Lawyers |
| Counsel for the Respondent: | Mr Y Shariff and Mr B Rauf |
| Solicitors for the Respondent: | K & L Gates |
ORDERS
The applicant’s application for an interlocutory injunction heard on 5 June 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1240 of 2019
| GAYE CAMERON |
Applicant
And
| GOLDWIND AUSTRALIA PTY LTD (ABN 32 140 108 390) |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application by the applicant, Ms Cameron, for an interlocutory injunction to restrain the respondent (Goldwind) from terminating her employment or, at least, from acting on a decision it has made to terminate Ms Cameron’s employment.
Ms Cameron seeks the interlocutory injunction in aid of a cause of action based on an asserted contravention by Goldwind of s.351(1) of the Fair Work Act 2009 (Cth) (FW Act). That subsection relevantly provides that an employer “must not take adverse action against a person who is an employee . . . because of the person’s . . . political opinion”. Ms Cameron claims that Goldwind has taken adverse action against her, including a decision to terminate her employment, because she held political opinions associated with those advocated by Pauline Hanson’s One Nation Party (One Nation).[1]
[1] The Court has jurisdiction to hear the application even though Ms Cameron has not applied to the Fair Work Commission (FWC) under s.365 of the FW Act to deal with the dispute. That is so because the prohibition under s.370 of the FW Act against a person making “a general protections court application in relation to a dispute” without first applying to the FWC and the FWC issuing a certificate under s.368(3)(a) of the FW Act does not apply where “the general protections court application includes an application for an interim injunction”.
Facts out of which application for injunction arises
Ms Cameron is currently employed by Goldwind as a “Senior Health and Safety Environment and Quality (HSEQ) Advisor”. She has been so employed since 20 November 2017 under the terms of a written contract dated 2 November 2017 (Employment Contract).[2]
[2] Affidavit of G Cameron, 21.05.2019, [3], [5]
Under cl.3(a) of the Employment Contract Goldwind agreed to employ Ms Cameron full-time to perform the duties of “Senior HSEQ Advisor” or in any other similar position. Under cl.5.2 of the Employment Contract Ms Cameron agreed to remain familiar with all policies and procedures of Goldwind that may be introduced, amended or replaced by Goldwind. Relevant to an aspect of the issues that I consider later in these reasons is cl.11 of the Employment Contract which provides as follows:
(a)The Company [that is, Goldwind] may require you not to attend work or engage in any Company business for any period if the Company considers it is in the best interests to do so.
(b)During any period in which you are given a direction pursuant to clause 11(a), you will receive your Total Remuneration.
In January 2019 Ms Cameron was preselected to stand as a candidate for One Nation in the New South Wales seat of Miranda and in the Federal Division of Cook. Ms Cameron deposes that Goldwind was aware of her candidacy and raised no objection. I understand Goldwind accepts that that is so. Ms Cameron took annual leave on 20 and 22 March 2019 to campaign for the New South Wales State election that was held on 23 March 2019. Ms Cameron did not succeed in her bid for election.
On 11 April 2019, being the date on which the Federal election was announced, Ms Cameron applied for one week’s leave without pay for the week commencing on 13 May 2019. Goldwind has a policy for the granting of leave without pay. The policy requires, among other things, that an employee applying for such leave submit a request in writing to his or her manager disclosing the purpose and timeframe of the proposed leave. The policy further provides that every “application for leave without pay will be considered on its merits and assessed on a case by case basis”. Ms Cameron applied for unpaid long service leave by completing and submitting what appears to be a form prescribed by Goldwind’s policy for applying for unpaid leave.
On 3 May 2019 Ms Cameron received a text message from her supervising manager, Mr Holmes, in response to a text message Ms Cameron had sent earlier about a matter unrelated to her application for unpaid leave. After he dealt with the unrelated matter, Mr Holmes said:
Ps regarding week of 13th. I’ll be away, most likely . . . too. I won’t be able to give you the whole week off as I need boots on the ground.
Ms Cameron and Mr Holmes then exchanged the following text messages:
Ms Cameron: I’ve made full commitments for that week, but as I’m happy to help you I’m happy to be available for phone calls, emails, etc
Mr Holmes:Gaye you really should commit till I approve your leave. Also as initially thought . . . is far from rolled out to the business.
*shouldn’t, I know this may seem unfair, but I have been very lenient with leave and work from home arrangements. I have committed to get . . . out and with your leave in July I’m fearing you won’t have time to do it properly.
Ms Cameron: Yeah well I really haven’t had much help with . . . off and the technical issues with . . . with it being . . . . Thanks for making my day.
Mr Holmes:Gaye, that’s not appreciated.
According to Ms Cameron, on 8 May 2019 she received a text message from Mr Holmes asking whether Ms Cameron disclosed to One Nation that Ms Cameron works for Goldwind, noting that “their energy policy does not look kindly on renewables”. Ms Cameron deposes that the following then occurred:
I exchanged text messages with Mr Holmes on the various positions of the parties. I informed Mr Holmes that although One Nation did not support government subsidising renewable energy they did not have an issue with forms of renewable energy. I suggested that the Respondent could consider approaching One Nation as part of a marketing campaign to promote the benefits of renewables.
Ms Cameron says that at that stage no one from Goldwind raised as an issue her membership of or candidacy for One Nation.
According to Ms Cameron, on 10 May 2019 she had a conversation with Mr Holmes to the following effect:
Mr Holmes:About your leave you cannot take it all. You need to tell me what two days you can work in the office.
Ms Cameron: Sorry I am already committed and need the week off.
On the same day Mr Holmes sent a text message to Ms Cameron asking her to “nominate which days you’ll be working next week”, and stating he could not give Ms Cameron the whole week off because “I want representation in the office not work from home”.
At 10.59 am on 13 May 2019 Mr Holmes sent to Ms Cameron the following email:
I left a message for you on Friday asking you to nominate which days you will be working this week. I haven’t seen a response, so I am asking again. As mentioned two Fridays ago, I have not approved you to take the full week off because I have to go to Beijing as discussed. I need HSEQ representation in the office, and I’m fearful the . . . will not be delivered and ready before your months [sic] Annual leave in July. I understand you had already made commitments for this week, but that is something you shouldn’t do unless you get approval from me, I texted this to you Friday two weeks ago. It has nothing to do with any political agenda; I’m not partial to Australian politics or parties.
You are entitled to annual and personal leave, but this is leave without pay, and as per policy, approval is subject to your manager’s discretion.
I’d appreciate it if you could respond advising of the days you will be working in the office this week; I will give you 3 days off to try and help your commitments.
Ms Cameron responded with an email sent at 12.08 pm on the same day:
Leo, absolutely nothing with you personally. I gave my form 5 weeks ago. I am not costing the business taking leave without pay. Within 2 weeks of giving form nothing was said. I had planned and booked in events knowing that nothing had been said.
I maybe [sic] old school and probably stupid in being loyal to business. I have been doing extra hours not asking for pay to get . . . underway . . . . It’s been unfortunate with . . . circumstances . . . which haven’t helped with the program . . . but I have to do extra hours due to the ‘urgency’ of the timeline.
I worked 4hrs on Saturday on . . . . which is taking the biggest chunk to get set up . . . Not to mention extra hours I have done in the past.
FYI I have fielded calls this morning which I attended to . . . . All caps go to my mobile.
I have also chked [sic] my messages from you and there was no message re your email. . . .
Leo, sitting in the office is old school and there is more distraction sitting there.
I have my laptop with me and checking anything urgent and responding.
I am very disheartened by this, together with the office move with no consultation with staff, I feel somewhat used.
I also note at the time of giving you my leave form there was no mention of you going to China neither.
Yep I know you’ll be cranky, but I have absolutely No [sic] idea what days can be physically in the office. I have locked in commitments elsewhere.
I hope that no bias judgments have been made regarding what I’m doing on my days off either. I continue fielding calls/emails as I have done in past etc, plus continue working after hours just because that’s the nice person I am, but it’s obvious the business doesn’t respect that.
At 7.22 pm on 17 May 2019 Ms Cameron received a letter from Goldwind signed by Ms Bartrum-Terill, Goldwin’s “General Manager Corporate Services” (Show Cause Letter). The letter stated that its purpose “is to set out the serious concerns that the Company has with respect to what it considers are fundamental breaches of your employment contract and obligations towards your employer, and to provide you with the opportunity to respond”. The letter referred to a number of matters. The first are the matters that appear under the heading “Absence without authorisation or approval”. This part of the letter deals with what is said to be Mr Holmes’ rejection of Ms Cameron’s request for five days’ leave without pay. The letter claimed Mr Holmes “granted approval for you to take three days as LWOP, and for you to specify which days, and also specifically requested and directed you to be at work and in the office for the remaining two days”, but Ms Cameron “did not comply with this”.
The second of the matters with which the Show Cause Letter deals appears under the heading “Failure to dedicate your time to work and frequent absences”. These matters are not relevant to anything I need to decide on this application for an interlocutory injunction.
The third of the matters with which the Show Cause Letter deals appears under the heading “Potential breaches of Code of Conduct and conflict of interest”, and is as follows:
Goldwind does not seek to interfere in its employees’ right to be involved in the political process nor express political views in a public forum. However, it does have the right to be concerned when the political views expressed have a potential to damage its reputation if the views are associated with it or are in conflict with its business or its core values.
You are standing in a seat of Cook as the candidate for Pauline Hanson’s One Nation Party. Your campaign material and the policy platform of One Nation contain matters which go to the heart of Goldwin’s business namely:
· A rejection of support for taxpayer subsidies for renewable sources of energy
· Doubting the ability of renewable energies to provide base load power
· Building new low-emission coal-fired power stations
· A “problem with foreign-owned multinational companies” and proposal to implement a separate tax system for foreign-owned companies which would see tax increased
· Demonstrated antagonism towards Chinese interests and influence in Australia
Further, the history and policy of One Nation is that it has been associated with both a lack of tolerance for multicultural and a lack of adherence to values which reject discrimination in all its forms. This history is contrary to the core values of Goldwind and the principles contained in its Code of Conduct. We do not say that you have expressed these same intolerances however your association with a political party does present a risk that should your employer become public, would cause reputational damage to Goldwind.
It may reasonably be open to infer that some of the matters identified after the dot points in this passage have been taken from or refer to an a document dated 29 April 2019 titled “Important Information regarding Federal Election 2019 – Seat of Cook” which at the bottom contains the name and printed signature of Ms Cameron. It appears that this document was on the reverse side of what is described in the document to be “the How to Vote Card, which explains the Small Ballot Paper & Larger Senate paper”.
The fourth of the matters with which the Show Cause Letter deals appear under the heading “Breaches of employment obligations”. This part of the letter identifies the terms of the Employment Contract it is asserted Ms Cameron breached. These include cl.5.1(e) (which obliges Ms Cameron to use her best endeavours to promote the interests of Goldwind), cl.5.1(f) (which obliges Ms Cameron not to act in any manner that might be adverse to the interests of Goldwind), and cl.18.1 (which prevents Ms Cameron from undertaking any employment or engaging in any activity that may adversely affect the performance of her duties without Goldwind’s prior written approval).
Finally, the Show Cause Letter states that before Goldwind forms “a concluded position on termination of” Ms Cameron’s employment “we would like to provide you with the opportunity to respond to the matters we have detailed above in relation to your conduct as well as the proposed outcome of termination of employment”. The letter stated Ms Cameron was required to respond to the letter by 5 pm on 20 May 2019, and that Ms Cameron’s response “will be discussed with [Ms Cameron] during a follow up meeting to be held Tuesday, 21st May 2019 at 12pm” (emphasis in original). The Show Cause Letter also directed Ms Cameron not to return to work or attend the office until that time.
Ms Cameron did not provide a written response by 20 May 2019. Instead she decided to approach this Court for urgent injunctive relief. Later in the morning of 21 May 2019 Ms Cameron appeared before me as duty judge without any legal representation, and applied ex parte for an order restraining Goldwind from terminating her employment. I did not grant an injunction, but instead adjourned Ms Cameron’s application for an injunction for hearing at 2.15 pm on 23 May 2019, and ordered that she serve her application on Goldwind. Ms Cameron and Goldwind appeared before me by counsel on 23 May 2019. Counsel informed me that correspondence had passed between the lawyers for the parties, and that it was not necessary for there to be a hearing on that day of an application for an interlocutory injunction. I adjourned the matter for directions on 5 June 2019 subject to reserving to the parties liberty to apply.
In the meantime, Ms Cameron responded to the Show Cause Letter by a letter dated 21 May 2019 from her lawyer. Ms Cameron’s lawyer stated Goldwind was aware of Ms Cameron’s membership of, and standing as a candidate for, One Nation but that at “no stage did anyone from . . . Goldwind raise her membership or candidacy for One Nation as being in conflict with her employment with Goldwind”. It was further stated that there is no evidence Ms Cameron breached Goldwind’s Code of Conduct “in that she has acted outside the expectations of Goldwind or in a manner that brings the employer into disrepute or otherwise does not align with Goldwind’s values warranting termination of her employment”. In a letter dated 22 May 2019 to Goldwind’s lawyer, Ms Cameron’s lawyer further stated:
Your client asserts that our client’s membership and candidacy of One Nation is a conflict of interest with the objectives and operations of your client. Your client appears to concede that they were aware of her membership and candidacy and took no issue at the time of her preselection in January 2019. Your client has not articulated any actual conduct on behalf of our client in the course of her duties or otherwise where she has engaged I activities in conflict with your client’s interest or breached her legal obligations.
Further correspondence followed, the contents of which it is unnecessary to set out. The last correspondence that is in evidence is a letter dated 3 June 2019 from Goldwind to Ms Cameron signed by Mr Tichen, the managing director of Goldwind (Termination Letter). After referring to the Show Cause Letter and a letter dated 28 May 2019 from Ms Cameron’s lawyer (which the Termination Letter defines as “Response”), Mr Titchen said:
As the Managing Director of Goldwind, I am the person who is authorised to make any decision relating to the termination of employment of an employee of Goldwind. Accordingly, and for the purposes of considering whether or not the termination of your employment is appropriate, I have carefully considered the issues raised in the Show Cause Letter, your Response and the terms of your contract of employment (Contract) and Goldwind International Code of Conduct (Code).
After considering all of this material, I have decided that your employment will be terminated for breach of your Contract and the Code, as outlined below.
The Termination Letter then deals with two matters. The first relates to Ms Cameron’s refusal to attend Goldwind’s office in the week of 13 to 17 May 2019 “despite the clear directions from your manager Mr Holmes that your application for leave without pay was not approved for 5 days”. The second matter related to “your publication of material dated 29 April 2019”:
Second, your publication of material dated 29 April 2019 with your name and your contact details which contained the following three statements:
a)Australia should withdraw from the Paris Agreement signed in 2016;
b)We do not support taxpayer subsidies for renewable sources of energy; and
c)Concerns with foreign ownership.
Goldwind’s business is obviously a foreign-owned renewable energy business in alignment with the Paris Agreement’s objective of reducing emissions and a significant beneficiary of (and support and advocate for) taxpayer subsidies for renewable sources of energy. The effect of each of the above statements is either adverse to the interests of the company or had the potential to be so. As a result, you were in a position where your personal interests were or may have been in conflict with Goldwind’s interests. The fact that these statements were publicly disseminated by a person who was at the time employed by the business as a Senior HSEQ Advisor with responsibilities relating to environmental matters has the effect of the above statements being adverse to the interests of our business and in conflict with your duties or had the potential to be so and could reasonably be seen as conflicting with the company’s interests.
I am satisfied that your conduct amounts to a breach of the Code namely: “Each Goldwind workers shall avoid situations in which their financial or other personal interest or dealing are, or may be, in conflict with the interests of Goldwind International. Accordingly, Goldwind International expects its workers to act in Goldwind’s interests at all times…. Workers shall not engage in any other activity (cultural, political, recreational and social) which could reasonably conflict with company’s interests and interfere with the performance of their duties.”
I also consider that the publication of these statements is in breach of clause 5.1(e) and (f) of your Contract.
In my consideration and concern as to the effect of the statements outlined above, your association with any political party or your political opinions are not relevant. I have not has any regard to these matters. Goldwind does not interfere with the rights of its employees to be involved in the political process, be affiliated with any political party or hold political opinions.
The Termination Letter concluded as follows:
However, I have decided that your employment with Goldwind will be terminated for the two serious breaches by you as outlined above. While I consider that summary termination is available under clause 10.1(a) of the Contract, in the circumstances Goldwind will terminate your contract under clause 10.3 of your Contract and provide one month payment in lieu of notice. In accordance with the undertaking we have provided to your solicitor, your termination will take effect at 5pm on Thursday 6 June 2019.
In the afternoon of 4 June 2019 my chambers received a letter from Ms Cameron’s lawyers stating that Ms Cameron would be applying for an interlocutory injunction at the time and date on which the matter had been set down for directions. I heard the application for an interlocutory injunction on 5 June 2019 and reserved my judgment, noting that I would deliver it at 4.15 pm on 6 June 2019.
Ms Cameron’s claims
Ms Cameron relies on a proposed amended Form 4 (Amended Claim). I was not asked to make an order granting Ms Cameron leave to file the Amended Claim, but the application for an interlocutory injunction was argued by counsel for both parties on the assumption that the Amended Claim will be filed. I will consider the application for an injunction on the basis of the same assumption.
In the Amended Claim Ms Cameron claims Goldwind contravened one or more of s.340, s.351(1), and s.772(f) of the FW Act. The Amended Claim also claims that each of Mr Holmes, Ms Bartrum-Terrill, and Mr Titchen was involved in Goldwind’s contraventions. For the purpose of the application for an interlocutory injunction, however, Ms Cameron only relies on her claim based on s.351 of the FW Act. It would therefore be useful if I set out the elements of a contravention of s.351(1) of the FW Act, and some principles relating to each of those elements.
Three matters must be established before an employer will be held to have contravened s.351(1) of the FW Act. First, the employer must have taken “adverse action against another person who is an employee”. The meaning of “adverse action” is to be found in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purpose of this proceeding, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer must take the adverse action must be “an employee”; and the employer takes “adverse action” if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
The expression “dismisses the employee” means the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.[3] The expression “injures the employee in his or her employment” refers to a deprivation of one of the more immediate practical incidents of an employee’s employment, such as loss of pay or reduction in rank.[4] And the expression “alters the position of the employee to the employee’s prejudice” means conduct that results in the “adverse affection of, or a deterioration in, the advantages enjoyed by” an employee before the action was taken.[5]
[3] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [29]
[4] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [30] referring to Childs v Metropolitan Transport Trust (1981) 29 AILR 24 (Smithers J)
[5] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [32] referring to Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 107 FCR 93 at 100 ([17]) (Black CJ, Ryan and Merkel JJ).
The second matter that must be established is that the employee against whom the employer has taken adverse action holds or has expressed or, perhaps, is perceived to have held or expressed, a “political opinion”. That expression is not defined in the FW Act. Its meaning, however, has been considered in the cases. I reviewed some of these in Henry v Leighton Admin Services Pty Ltd & Anor, and it is unnecessary to repeat here what I said in that case.[6]
[6] [2015] FCCA 1923, at [101-104]
The third matter that must be established is that the employer took the adverse action for a particular reason, or for reasons that included a particular reason.[7] That requirement arises from the presence in s.351(1) of the FW Act of the word “because”.[8] Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[9] or must be an “operative or immediate reason for the action”.[10]
[7] FW Act, s.360
[8] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at 258 ([26]) (Tracey J)
[9] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1066 ([127]) (Gummow and Hayne JJ)
[10] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.351(1) of the FW Act is s.361(1). That subsection provides:
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.
Subsection s.361(2) of the FW Act provides, however, that s.361(1) “does not apply in relation to orders for an interim injunction”. Thus Ms Cameron cannot take advantage of the presumption provided by s.361(1) in her application for an interlocutory injunction.
In broad terms, then, Ms Cameron claims the following:
a)at all relevant times she held, and continues to hold, political opinions, those opinions at the very least consisting of the opinions expressed in the document dated 29 April 2019, but also opinions that reflect policies of One Nation (Claimed Political Opinions);
b)Goldwind’s conduct at least from the time it provided to Ms Cameron the Show Cause Letter up to its deciding to terminate her employment and issuing to her the Termination Letter, constituted the taking of adverse conduct; and
c)Goldwind’s engaged in the conduct referred to in (b) because Ms Cameron holds the Claimed Political Opinions.
Principles for the grant of interlocutory injunctions
Ms Cameron applies for an interlocutory injunction pursuant to s.545(2)(a) of the FW Act which empowers this Court to make an order granting, among other things, an interim injunction. Counsel for Ms Cameron and Goldwind proceeded on the basis that the ordinary principles regulating the grant of interlocutory injunctions also applies to the exercise of the power conferred by s.545(2)(a). Counsel referred to passages from authorities that state the relevant principles. I prefer to refer to the principles stated by Mason ACJ (as his Honour then was) in Castlemaine Tooheys Limited v South Australia:[11]
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that 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; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
[11] (1986) 161 CLR 148, at page 153
The reference in this passage to “prima facie case, in the sense that 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” is taken from the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.[12] The meaning of that passage was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill:[13]
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
[12] (1968) 118 CLR 618, at page 622
[13] [2006] HCA 46, at [65] (footnotes omitted)
Prima facie case?
The first question I must consider is whether Ms Cameron has established she has a prima facie case that Goldwind has contravened s.351(1) of the FW Act. There are two questions. The first is whether, in light of the combined operation of s.351(2)(a) of the FW Act and the Anti-Discrimination Act 1977 (NSW) (NSW Anti-Discrimination Act), Ms Cameron has a reasonably arguable case that Goldwind contravened s.351(1) of the Act. The second question is, assuming s.351(2)(a) does not preclude Ms Cameron claiming Goldwind contravened s.351(1), whether the evidence supports a prima facie case Goldwind contravened s.351(1) of the FW Act.
Prima facie case of contravention of s.351(1), given s.351(2)(a) of FW Act?
Counsel for Goldwind submits Ms Cameron does not have a prima facie case of contravention by Goldwind of s.351(1) of the FW Act because of s.351(2)(a). That paragraph provides that s.351(1) of the FW Act “does not apply to action that is . . . not unlawful under any discrimination law in force in the place where the action is taken”. The expression “anti-discrimination law” is defined in s.351(3) of the FW Act, and includes as an “anti-discrimination law” the NSW Anti-Discrimination Act. That Act does not provide as a prohibited ground a person’s political opinion. Counsel submits, therefore, that because the doing of an act on the ground of another person’s political opinion is not covered by the NSW Anti-Discrimination Act, an employer’s taking adverse action because of an employee’s political opinion would “not be unlawful” under the NSW Anti-Discrimination Act and, for that reason, s.351(1) of the FW Act could not apply to such conduct.
Counsel for Goldwind, in effect, submits that on its proper construction s.351(2)(a) of the FW Act applies to any conduct that is not unlawful under an “anti-discrimination law”, which, in the case before me, is the NSW Anti-Discrimination Act. On this construction, the relevant question is whether the conduct said to constitute a contravention of s.351(1) of the FW Act would constitute a contravention of the NSW Anti-Discrimination Act. If that question is answered in the negative, as it would be in the case before me, that would necessarily mean that s.351(2)(a) of the FW Act would apply, and there could therefore be no contravention of s.351(1) of the FW Act.
Counsel for Ms Cameron, on the other hand, submits that s.351(2)(a) of the FW Act applies only to provisions of an anti-discrimination law that exempts conduct from the operation of the relevant anti-discrimination law. Given there is no provision in the NSW Anti-Discrimination Act that exempts conduct on the ground of political behaviour, s.351(2)(a) does not apply to the adverse action Ms Cameron alleges Goldwind has taken against her. Counsel relied on other provisions of the FW Act (s.153, s.195, s.578, and s.772 of the FW Act), and to what counsel submitted might be a potentially discriminatory application of federal law if the construction for which counsel for Goldwind contended were to be accepted.
When assessing these competing submissions, it is necessary to bring to mind the nature of the task of construing a statutory provision. That task “must begin with a consideration of the text itself”, with the “language which has actually been employed in the text of legislation” being “the surest guide to legislative intention”.[14] The meaning of the text, however, “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.[15]
[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ),
[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ),
In my opinion, it is reasonably arguable that counsels’ submissions pay insufficient attention to the text of s.351(2)(a) of the FW Act. When attention is focused on the text, there is a reasonably arguable case that s.351(2)(a) is directed to (a) “action”; (b) that has a particular quality, namely, its being “not unlawful”; and (c) the “action” has the quality of being “not unlawful” “under” – that is, by virtue or because of the operation of – an anti-discrimination law. So viewed, it is reasonably arguable that s.351(2)(a) of the FW Act is directed, as counsel for Ms Cameron submits, to actions that are exempted by provisions of an anti-discrimination law from the operation of that anti-discrimination law. It is directed, in other words, to actions which provisions of an anti-discrimination law in terms render not unlawful.
It is reasonably arguable that this construction is supported by the language used in the other anti-discrimination laws identified in s.351(3) of the FW Act. For example, Division 5 of Part 2 of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) provides for exemptions. Each of s.45, s.46, s.47, s.48, s.53, and s.54 in that Division commences with the words: “This Part does not render it unlawful for a person to discriminate against another person”. Another example is s.55 and s.58 of the Disability Discrimination Act. Section 55 empowers the Australian Human Rights Commission to grant by instrument “an exemption from the operation of a provision of Division 1 or 2, as specified in the instrument”; and s.58 provides that Part 2 of the Disability Discrimination Act “does not render it unlawful for a person who has been granted an exemption from a provision of Division 1 or 2 . . . to do an act in accordance with the provisions of the instrument by which the exemption was granted”. Analogous provisions are to be found in Division 4 of Part 4 of the Age Discrimination Act 2004 (Cth) and Division 4 of Part II of the Sex Discrimination Act 1984 (Cth); and the words “does not render unlawful” is to be found in s.18D of the Racial Discrimination Act 1975 (Cth). It is reasonably arguable, therefore, that s.351(2)(a) of the FW Act is intended to apply to actions which provisions such as those I have identified do not render unlawful, not to conduct that in general is not caught by the anti-discrimination laws of which those provisions form part.
The NSW Anti-Discrimination Act does not use the words “does not render unlawful”. That Act does, however, provide for exemptions. Under s.126(1) the President of the Anti-Discrimination Board has power to grant “an exemption from this Act or the regulations or such parts of this Act or the regulations in respect of (a) a person or class of persons, or (b) an activity or class of activities, or (c) any other matter or circumstance specified in the order”. It is reasonably arguable that the action to which s.351(2)(a) of the FW Act would apply is action undertaken in New South Wales which is covered by any exemption the President of the Anti-Discrimination Board may have granted. Counsel for Goldwind has not suggested, however, that the President has granted an exemption that covers the conduct in which Ms Cameron alleges Goldwind engaged in contravention of s.351(1) of the FW Act.
For these reasons I am satisfied that Ms Cameron has a reasonably arguable case that her claim based on a contravention of s.351(1) of the FW Act is not barred by s.351(2)(a).
Prima facie case of contravention of s.351(1)?
There is evidence to support findings that Goldwind took adverse action against Ms Cameron; and that Ms Cameron held the Claimed Political Opinions. It is also reasonably arguable that the evidence is reasonably capable of supporting a finding that Goldwin engaged in the adverse conduct alleged against it for reasons that included as a substantial and operative factor Ms Cameron holding the Claimed Political Opinions. There is evidence of communications between Ms Cameron and Mr Holmes about One Nation; the Show Cause Letter refers to Ms Cameron’s political opinions; and the Termination Letter also refers to Ms Cameron’s political opinions. When these matters are considered together, I am satisfied Ms Cameron has a sufficiently arguable case that could support the granting of an interlocutory injunction if Ms Cameron were to suffer irreparable injury for which damages would not be an adequate remedy unless an injunction is granted, and the balance of convenience would otherwise favour the granting of an injunction.
Counsel for Goldwind submitted I should take into account the following evidence given by Ms DeBoos, the solicitor for Goldwind, in an affidavit she made and which was read:
18.I am informed and verily believe from Mr Titchen that he denies making the decision to terminate Ms Cameron’s employment on the basis of:
a.Ms Cameron’s alleged right to take leave without pay; or
b.Ms Cameron’s political opinion.
19.I am informed and verily believe that Mr Holmes and Ms Charlotte Bartrum-Terill . . . deny that, to the extent that they were involved in the disciplinary process or in the alleged threat to terminate Ms Cameron’s employment, that they participated in such matters on the basis of:
a.Ms Cameron’s alleged right to take leave without pay; or
b.Ms Cameron’s political opinion.
Counsel submitted that if this evidence is taken into account Ms Cameron’s claim based on contravention of s.351(1) of the FW Act cannot be regarded as being reasonably arguable. That is so, counsel submitted, because the cases recognise a distinction between taking action because of the character of the employee’s right or exercise by the employee of that right which an employee claims constituted the reason for which an employer has taken adverse action, and the consequences of the exercise of that right.[16] Counsel submitted on the basis of Ms BeBoos’s hearsay statement of the intentions of Mr Titchen, Mr Holmes, and Ms Bartrum-Terill that adverse action was not taken against Ms Cameron because she held or expressed any political opinion, but because of the consequences to Goldwind of Ms Cameron’s conduct. That is not a submission I can or should entertain at this stage of the proceeding, particularly because it is based on a hearsay evidence of the state of mind of the person who Goldwind claims made the decision to terminate Ms Cameron’s employment, and hearsay evidence of the states of mind of persons who may have been involved in Goldwind’s decision to terminate Ms Cameron’s employment where those persons have not been exposed to cross-examination.
[16] Counsel relied on Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76
Irreparable injury if injunction not granted?
The next question is whether Ms Cameron will suffer irreparable injury for which damages would not be an adequate remedy unless an injunction is granted. Counsel for both parties did not address a question to that effect; they addressed the question of balance of convenience. The question of balance of convenience, however, arises only after the Court identifies the harm the applicant for the injunction will suffer if no interlocutory injunction is granted, but the applicant succeeds at the final hearing, and concludes that such harm cannot adequately be compensated with an award of damages, assuming the respondent is in a position to pay such damages.
It appears to be common ground that if the termination of Ms Cameron’s employment proceeds as contemplated by the Termination Letter, Ms Cameron will be paid one month’s salary instead of notice; and she will receive an amount for accrued annual leave that will cover at least most of July 2019. Thus if the matter is finally heard and determined by July 2019, Ms Cameron will not suffer any, or any significant financial loss, assuming Ms Cameron takes no steps to find employment or, having decided to take steps she is unable to find employment. It is also common ground that since around the time she received the Show Cause Letter Ms Cameron has not been performing work for Goldwind. Her employment being terminated, therefore, will not alter the current state of affairs in which she performs no work for Goldwind.
Ms Cameron claims she will suffer other injuries which cannot be compensated by any damages. First she says there are limited opportunities for her to obtain alternative employment. That, however, will not cause Ms Cameron any loss if her application can be finally heard and determined by no later than the end of July 2019. Second, Ms Cameron says that if her employment is terminated that will affect her reputation and her ability to obtain work in the industry in which she works. It is difficult to see, however, how granting the interlocutory injunction which she seeks can avoid this harm. Goldwind had already issued a letter purporting to terminate her employment, and no injunction can undo that act. If Ms Cameron succeeds at the final hearing, she will be in a position to show that the termination was unlawful.
In my opinion, Ms Cameron will not suffer any harm if the interlocutory injunction she seeks is not granted if the application for final relief can be heard and determined by no later than July 2019. I informed the parties that I am available to hear Ms Cameron’s application on a final basis in late June 2019 or in the second week of July 2019, and counsel for Ms Cameron and Goldwind informed me that the parties will be in a position to proceed with a final hearing at least in the last week of June 2019.
Disposition
I propose, therefore, to order that the application for an interlocutory injunction be dismissed. At the time I pronounce my order I will set the matter down for final hearing at a time and date that is convenient to all parties, and make directions for the preparation of the matter for hearing.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 6 June 2019
0
9
7