Chapman v Ontrak Engineering Pty Ltd
[2024] FedCFamC2G 1182
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chapman v Ontrak Engineering Pty Ltd [2024] FedCFamC2G 1182
File number(s): SYG 2730 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 November 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for interim relief to restore applicant employee to roles from which she alleges she had been impermissibly removed and to permit the applicant to work from home – balance of convenience against granting interim relief – application for interim relief dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 545(2) Cases cited: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 Division: Fair Work Number of paragraphs: 17 Date of hearing: 1 November 2024 Place: Sydney Counsel for the Applicant: Ms M Causbrook for the applicant, by video Solicitor for the Applicant: Bentham Legal Pty Limited Counsel for the Respondents: Mr O Fagir for the respondent, by video Solicitor for the Respondents: Adams & Partners Lawyers ORDERS
SYG 2730 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARAH CHAPMAN
Applicant
AND: ONTRAK ENGINEERING PTY LTD
First Respondent
ADAM LEEDS
Second Respondent
ROBYN LEEDS
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for interim relief is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)
On 28 October 2024 the applicant filed a proceeding in this Court against the first respondent, her employer, and two of its directors, seeking relief under the Fair Work Act 2009 (Cth) (FW Act). I will refer to the first respondent in these reasons as “the employer” and, to the extent I refer to the second and third respondents, I will simply refer to them as “the directors”.
In the form that accompanied the application, the applicant alleges that the directors, acting on behalf of the employer, undertook certain activities which constituted adverse action against the applicant, and they did so because the applicant exercised a number of workplace rights. In short, the applicant claims that the employer engaged in conduct in contravention of s 340 of the FW Act, and that each of the directors is a person involved in those contraventions. The applicant also included in the application claims for interim relief; and it will be unnecessary to set those out because the precise orders that are being sought have been formulated in short minutes of order.
The matter first came before me on an urgent basis at 2.15 pm on 28 October 2024. At that time, I listed the hearing of the application for interim relief at 9.30 am on 1 November 2024, and I made directions for the filing of affidavits in connection with the hearing of that application. The application for interim relief came on for hearing at approximately 11.30 am on 1 November 2024, and I heard submissions by the applicant through her counsel and by the respondents through their counsel. The particular application I heard was an application that I make two orders that are set out in draft short minutes of order that had been prepared by counsel for the respondents. Those orders are as follows:
1.Pursuant to sections 545(1) and 545(2)(c) of the Fair Work Act, the first respondent immediately reinstates the applicant to her role and restores her access to her work email;
2.Pursuant to subsection (1) of 545 and subsection (2)(a) of 545 of the Fair Work Act, the applicant be permitted to work from home under supervision of another director, not the directors who are the second and third respondents, until the final determination of the proceeding.
So what is before me today is an application for interim relief under section 545(2) of the FW Act. There is no controversy between the parties about the approach that I should take in determining whether I should grant the interim relief sought by the applicant but, for my purposes, it is sufficient to refer to the principles that guide the granting of interlocutory injunctions as they have been stated by Mason ACJ (as his Honour then was) in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, at page 153. In that passage, his Honour said:
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.
The respondents are prepared to proceed on the assumption that there is a serious question to be tried or that the applicant has made out a prima facie case. In any event, I am satisfied that there is a serious question to be tried, and that would normally lead to considering whether damages is an adequate remedy and, if not, where the balance of convenience lies. The respondents, however, have raised what their counsel described as two threshold issues.
The first issue is that the application and the document in support of that application that has been filed by the applicant do not make any claim for the reinstatement of the applicant to her role and restoration of access to her work email. In other words, no claim for final relief is sought in terms of the interim relief that is sought in this interlocutory application. That, by itself, is not a barrier to the applicant seeking such orders because counsel for the applicant has said that the applicant proposed at the appropriate time to apply for an order to amend the application to include that relief. I understood that an application will be made to amend the application for final relief in terms of the interim relief that is sought in order 1 of the proposed short minutes of order.
The second threshold issue, however, raises more difficult issues for the applicant. Counsel for the respondents submitted that order 1 is too vague. It does not identify with any particularity the role to which the employer will be required to reinstate the applicant if the order were made - and for that reason, it would either not be possible for the employer to comply with an order framed with such width; and the making of such an order will otherwise expose the employer to an unjustifiable peril of breaching a court order and therefore being held to be in contempt. Counsel for the applicant submits that there is clarity of the roles from which the employer has removed the applicant and to which, therefore, the order would compel the employer to reinstate, and that clarity is to be found in the affidavit on the basis of which the applicant applies for the interim orders today. That affidavit is made by the applicant’s solicitor on information and belief.
There are two difficulties with counsel’s submission. The first is that, even if the affidavit, as counsel submits, clearly identifies the roles from which the employer removed the applicant, the fact remains that those roles should be specified in the order. Whether an employer complies with an order should not be left to determining that question by reference to extraneous material such as an affidavit. Second, and in any event, the affidavit does not describe with sufficient clarity or, indeed, with any particularity the roles from which the applicant has been removed. That can be seen from paragraph 27 of the affidavit of the applicant's solicitor. For example, subparagraph (a) of paragraph 27 refers to the removal of the applicant from meetings with clients and companies without those clients and companies being identified; subparagraph (e) refers to engineering projects without those projects being identified; and subparagraph (c) identifies in general terms restrictions on the management of projects without identifying what those restrictions are. For these reasons alone, I would not be prepared to make an order in terms of paragraph 1 of the short minutes of order.
That then leads me to turn to order 2 that is being sought, and that is an order that the applicant be permitted to work from home. The applicant submits that damages is not an adequate remedy because if the current state of affairs continues without the making of either or both of the orders for which the applicant applies, the applicant would suffer detriment to her reputation and job prospects. Counsel for the respondents submitted that there was really no evidence to support this. I am prepared to assume that there is a sufficient prospect of reputational harm and, for that reason, I will proceed on the basis that damages would not be an adequate remedy if the order is not granted.
That, then, leads me to the balance of convenience. The essence of the applicant’s case on the balance of convenience is that she submits she has suffered psychological injury because of the respondents’ alleged contravening conduct; and order 2 is necessary to protect her mental health and give her an opportunity to recover. There are a number of difficulties with this submission.
The first is that the applicant says she does not propose to claim as final relief an order in terms of order 2 of the short minutes of order. In those circumstances, it is difficult to see any logical connection between order 2 and the final relief that the applicant will be seeking in this proceeding. In other words, order 2 is not sought in aid of any final order the applicant will seek, and it does not appear to be relevant to preserving any subject matter of the proceeding.
The second difficulty is that the applicant does not say that the psychological injury from which she says she suffers renders her unfit to perform her duties at work. A third difficulty is order 2, if made, would constitute an interference with an important incident of the contract of employment, namely the employer's right to issue directions to its employees in relation to matters that fall within the scope of the contract of employment. The practical effect of that difficulty can be seen in the affidavit of Mr Lewry, the employer's managing director. Mr Lewry says that the employer does not have any work that could be done by the applicant on a full time basis from home; and that the applicant’s request that she be supervised by the senior purchasing manager of the employer cannot be accommodated in any event because the purchasing manager leads a team of three employees in purchasing in spare parts, which is not a division of which Ms Chapman forms part.
The fourth difficulty with the applicant's submission on the balance of convenience is that Mr Lewry has deposed in paragraph 10 of his affidavit that he has asked the applicant to return to work at the Riverstone premises of the employer. He deposes to the fact that the employer has two premises: one at Riverstone, and the other at Windsor. Mr Lewry says that the applicant, throughout her employment with the employer, had been based in the Windsor premises, being the premises at which the directors are also based. Therefore, what Mr Lewry has directed the applicant to do is to return to work at premises at which the directors are not present, being the persons the applicant alleges have engaged in the contravening conduct of which she complains.
A fifth difficulty is the submission made by counsel for the respondents that no undertaking as to damages has been proffered. Having regard to the other matters that I have already referred to and to the one further matter I will refer to, the absence of a proffering of an undertaking of damages is not material to the question whether interim relief should be granted.
Finally, there is the evidence of psychological injury. That evidence is very weak. It is contained in a letter dated 16 October 2024 from the applicant's general practitioner. The letter is addressed to a Ms Walsh who I infer is a psychologist. The purpose of the letter is to refer the applicant to Ms Walsh for six psychology sessions; and the general practitioner states that the applicant is suffering with “adjustment disorder, anxiety, depression, following sexual discrimination at work”, and further notes that the applicant has no history of other mental health problems. The letter refers to the applicant having been the victim of certain conduct in the workplace which has caused the applicant significant distress, and which “has caused her to develop anxiety, loss of motivation, poor sleep, difficulty concentrating”. The letter also refers to the performance of “a MHCP”, which I infer is a questionnaire designed to elicit information on the basis of which an assessment of a person's mental state can be determined; and the letter concludes that the result of that performance was that the applicant suffers “moderate anxiety and depressive symptoms”.
The difficulties with this evidence are, first, it is not given by a psychologist. Second, the basis of the opinion is not disclosed. Third, there is no opinion about whether the psychological conditions identified in that letter prevents or inhibits the applicant from returning to work, and there is no evidence about whether her returning to work will exacerbate whatever psychological injury or condition is described in that letter.
For these reasons, I am not satisfied that the balance of convenience would favour the granting of an order in terms of order 2 of the short minutes of order. In those circumstances, I propose in a moment to dismiss the application for interim relief.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 November 2024
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