Chang v General Reinsurance Australia Ltd
[2014] FCCA 1208
•5 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANG v GENERAL REINSURANCE AUSTRALIA LTD | [2014] FCCA 1208 |
| Catchwords: PRACTICE AND PROCEDURE – Interlocutory application for injunction – interlocutory relief not concerned with the subject matter of the proceeding – interlocutory application refused. |
| Cases Cited: Shawv Australia and New Zealand Banking Group Limited t/as ANZ Bank; Bianca Haines [2014] FWC 3408 |
| Applicant: | HYO WOOK CHANG |
| Respondent: | GENERAL REINSURANCE AUSTRALIA LTD ACN 008 427 450 |
| File Number: | SYG 1512 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 4 and 5 June 2014 |
| Date of Last Submission: | 5 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Freeman |
| Counsel for the Respondent: | Mr B. Cross |
| Solicitors for the Respondent: | Stevens & Associates |
ORDERS
The applicant’s interim application for reinstatement be dismissed.
The respondent have liberty to apply for costs of the interlocutory application within 28 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1512 of 2014
| HYO WOOK CHANG |
Applicant
And
| GENERAL REINSURANCE AUSTRALIA LTD ACN 008 427 450 |
Respondent
REASONS FOR JUDGMENT
This is an application for urgent interlocutory relief.
The facts of the matter are contained in the affidavit of David Stuart Taylor, sworn on 3 June 2014 and are, relevantly:
a)the applicant worked for the respondent, “Gen Re”;
b)on 6 December 2013 the applicant was called into a meeting with her direct manager and the respondent’s human resources manager. It appears that there was some discussion about her future employment but the terms of that discussion remain to be proved;
c)on 10 December 2013 the applicant was required to attend a further meeting, at which point she was advised that her employment was suspended on pay while the respondent investigated whether she had breached a provision of its code of conduct by sending confidential material to her own hotmail address;
d)on 21 January 2014 the applicant was required to attend a further meeting and answer questions;
e)on 12 March 2014 the applicant was sent an email directing her to attend a further meeting;
f)on 13 March 2014 the applicant filed an application in the Fair Work Commission (“Commission”) alleging that the respondent had been bullying her by, amongst other things, calling her to the meetings to which I have referred;
g)on 17 April 2014 the anti-bullying application was subject to conciliation but did not resolve and the matter was listed for hearing before the Commission on 11 and 12 June 2014;
h)at 10.01am on 2 June 2014 the applicant received an email from the respondent advising her that it had undertaken an inquiry and had concluded that no-one at Gen Re had engaged in any conduct which constituted harassment, discrimination or unprofessional behaviour towards her;
i)at 10.06 am on 2 June 2014 the respondent sent the applicant a letter by email terminating her employment;
j)at 10.12 am on 2 June 2014 the respondent’s solicitors advised the applicant’s solicitors that they intended to approach the Commission, asking that the proceeding before it be dealt with urgently; and
k)at 4.20 pm on 2 June 2014 the applicant’s solicitors received a letter from the respondent’s solicitors stating that the relisting of the proceeding before the Commission was in order to raise with the Commission its recent decision Shaw vAustralia and New Zealand Banking Group Limited t/as ANZ Bank; Bianca Haines [2014] FWC 3408 and the argument that because the applicant had been dismissed from her employment the Commission no longer had jurisdiction to entertain the anti-bullying application.
Yesterday the applicant filed an application in this Court relevantly seeking final orders of the following nature:
a)a declaration that on 2 June 2014 the respondent took adverse action against her by dismissing her from her employment;
b)an order that she be reinstated; and
c)an order that the respondent pay her financial compensation.
That application also relevantly sought the following interlocutory order:
An order that until the hearing and determination of this Application, or further order the respondent reinstate the applicant to the position that she occupied prior to her termination provided that she be suspended without pay.
Interim preservation
The aim of the interlocutory application was to restore the applicant’s pre-dismissal employment status so that her application before the Commission could proceed.
The applicant submitted that the subject matter of the case in this Court is the allegation that the respondent took adverse action against her because she sought to exercise her workplace right to complain to the Commission about what she asserted was bullying conduct. She submitted that as the protection of such rights is one of the objects of pt.3-1 of the Fair Work Act 2009 (“Act”), the preservation of her right to complain to the Commission about the alleged bullying was central to the cause of action pursued in this Court.
I do not agree. The manner in which pt.3-1 of the Act protects employees’ workplace rights is to protect them from adverse action if they seek to exercise those rights. Part 3.1 does not provide for orders to be made facilitating the exercise of such workplace rights. To the extent that those things are provided for by the Act, they are provided for elsewhere.
I am therefore not of the view that the interlocutory relief sought concerns the subject matter of the substantive proceeding in this Court or that an interlocutory injunction lies to permit the applicant to pursue different proceedings in a different forum.
However, if I am wrong and the bullying claim does form part of the present alleged cause of action, I make the following comments.
Serious issue to be tried?
There can be no doubt that the applicant had a workplace right which she exercised, or sought to exercise, or that she was dismissed. The question therefore becomes whether the dismissal was effected for a prohibited reason. As the first two points are likely to be made out at the trial, the reverse onus provided by the Act will be engaged, requiring the respondent to disprove the statutory presumption that the adverse action was taken for a prohibited reason.
It seems to me that there is a serious issue to be tried.
Damages an adequate remedy?
The applicant submitted that were the injunction she seeks to be refused, and on the assumption that this would lead the Commission to terminate the proceeding presently before it, she would not be able to bring the same proceeding again even if she were to be reinstated as a consequence of the action presently in this Court.
The applicant advised the Court that what she sought from the Commission proceeding was a finding that she had been bullied, orders that the bullying cease and, amongst other things, an order that her suspension, which would be in place by reason of the interim relief she sought in this Court, be lifted because the suspension was part of the bullying.
Although it is likely that any anti-bullying proceeding which the applicant might take subsequent upon a reinstatement at the end of this case would not be identical to the one which she has on foot today, I am not persuaded that any failure to grant the injunction which she seeks will lead to an outcome which cannot be compensated for in this proceeding. That is because if the applicant is entitled to reinstatement, she will be reinstated by order of this Court and will be entitled to monetary compensation in respect of the period during which she was not employed by the respondent.
Balance of convenience
The scenario that the Court grants the injunction sought and the applicant returns to unpaid and suspended employment with the respondent and then the Commission lifts that suspension before the Court decides whether adverse action was taken for a prohibited reason suggests a potential subversion of the Court’s powers to decide the adverse action claim by pre-empting any decision that the Court might make. That suggests that the balance of convenience does not favour the grant of the interlocutory injunction sought.
But there is another consideration of at least equal significance. Consider this set of facts: the applicant is granted the interlocutory injunction she seeks and is reinstated to her employment with the respondent on an unpaid and suspended basis; the respondent is then ordered by the Commission to lift the suspension so that the applicant can return to work; but, at the end of this proceeding, the Court finds that the respondent was not motivated by a prohibited reason when deciding to dismiss the applicant and, therefore, the applicant fails in the substantive proceeding in this Court. The position then would be that the Commission would have reinstated the applicant to a position from which, the Court will have found, she was not unlawfully dismissed. The potential for that to occur highlights why courts are hesitant to grant mandatory injunctions in situations where it appears that the employment relationship has broken down. In that regard, in this case, the allegations made by the respondent against the applicant are concerned with what is described as a serious breach of confidentiality in relation to proprietary information and it is an available inference that the respondent no longer trusts the applicant. That suggests that the balance of convenience does not favour the grant of the interlocutory injunction sought.
I have taken into account the applicant’s submissions that if I do not grant the injunction sought she might have to leave Australia to find alternative work, that there is some stigma associated with losing one’s job and that she will have difficulties in finding another job because she has lost the one that she had with the respondent.
Notwithstanding those submissions, I do not think that the balance of convenience favours the granting of the injunction sought.
Conclusion
The interlocutory application for an injunction will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 12 June 2014
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