COMMISSIONER FOR EQUAL OPPORTUNITY and ALCOA OF AUSTRALIA LTD
[2007] WASAT 317
•1 March 2007
COMMISSIONER FOR EQUAL OPPORTUNITY and ALCOA OF AUSTRALIA LTD [2007] WASAT 317
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 317 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:15/2007 | 21 FEBRUARY 2007 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) MS J TOOHEY (SENIOR MEMBER) | 28/02/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for interim injunction dismissed Application by respondent for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR EQUAL OPPORTUNITY ALCOA OF AUSTRALIA LTD |
Catchwords: | Interim injunction s 85 Equal Opportunity Act 1984 (WA) s 126 Equal Opportunity Act 1984 (WA) Test for granting injunction Serious issue Balance of convenience Adequate remedies under s 127 Equal Opportunity Act 1984 (WA) Costs application |
Legislation: | Equal Opportunity Act 1984 (WA), s 66A, s 66B, s 85, s 90(2), s 93, s 126, s 127 State Administrative Tribunal Act 2004 (WA), s 32, s 87 |
Case References: | Chew and Director General of the Department of Education and Training [2006] WASAT 248 Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Davies v University of New England (1994) EOC 92-103 Michael v State Housing Commission (1996) EOC 92-829 Penny v State Housing Commission (Unreported, Equal Opportunity Tribunal of Western Australia; 11 November 1996) Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 |
Orders | 1. The application for an interim injunction is dismissed.,2. The application by the respondent for costs is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : COMMISSIONER FOR EQUAL OPPORTUNITY and ALCOA OF AUSTRALIA LTD [2007] WASAT 317 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)
- MS J TOOHEY (SENIOR MEMBER)
- Applicant
AND
ALCOA OF AUSTRALIA LTD
Respondent
Catchwords:
Interim injunction s 85 Equal Opportunity Act 1984 (WA) s 126 Equal Opportunity Act 1984 (WA) Test for granting injunction Serious issue Balance of convenience Adequate remedies under s 127 Equal Opportunity Act 1984 (WA) Costs application
(Page 2)
Legislation:
Equal Opportunity Act 1984 (WA), s 66A, s 66B, s 85, s 90(2), s 93, s 126, s 127
State Administrative Tribunal Act 2004 (WA), s 32, s 87
Result:
Application for interim injunction dismissed
Application by respondent for costs dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A Macdonald
Respondent : Mr R Hooker with Ms M Foley
Solicitors:
Applicant : Equal Opportunity Commission
Respondent : Blake Dawson Waldron
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Davies v University of New England (1994) EOC 92-103
Michael v State Housing Commission (1996) EOC 92-829
Penny v State Housing Commission (Unreported, Equal Opportunity Tribunal of Western Australia; 11 November 1996)
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
(Page 3)
Summary of Tribunal's decision
1 The Commissioner for Equal Opportunity applied to the Tribunal under s 85 and s 126 of the Equal Opportunity Act 1984 (WA) for an interim injunction to restrain Alcoa of Australia Ltd from terminating Mr Ian Barrett's employment. The Commissioner submitted that the injunction was necessary to enable her to properly conduct and complete her investigation into Mr Barrett's claims of harassment, victimisation and unlawful discrimination by Alcoa in his employment.
2 The Tribunal did not grant the injunction, noting that there was no clear evidence that Alcoa was about to dismiss Mr Barrett without further notice. The Tribunal applied the general law principles regarding injunctive relief, finding there was a serious issue to be tried; that the balance of convenience was equally weighted but that despite these findings, Mr Barrett had available to him the remedy of reinstatement if his claim was referred to the Tribunal. That remedy was, in the Tribunal's view, an adequate remedy and injunctive relief should not therefore be granted.
Introduction
3 This is an application by the Commissioner for Equal Opportunity (Commissioner) for orders pursuant to s 85 and s 126 of the Equal Opportunity Act 1984 (WA) (the Act) which provide:
"85. Application for interim order
The Commissioner, at any time after a complaint is lodged with the Commissioner under section 83 and before the Commissioner dismisses the complaint, resolves the complaint by conciliation or refers the complaint to the Tribunal under section 93, as the case may be, may apply to the Tribunal for the making of an interim order under section 126 or for the variation or revocation of any such order.
…
126. Interim orders
The Tribunal may, on the application of the Commissioner under section 85, or on the application of a
- party to an investigation at any time after the lodging of the complaint into which that investigation is held, make an interim order to preserve -
- (a) the status quo between the parties to the complaint; or
(b) the rights of the parties to the complaint,
pending determination of the matter that is the subject of the complaint."
Background
4 Mr Ian Barrett lodged various complaints with the Commissioner alleging sexual harassment, victimisation and unlawful discrimination on the grounds of impairment by his employer Alcoa of Australia Ltd and its employees. Alcoa denies that it or its employees have acted in an unlawfully discriminatory way towards Mr Barrett or that it or its employees have victimised him. The allegations relevant to these proceedings are in the complaint lodged by Mr Barrett with the Commissioner on 13 February 2007 alleging unlawful discrimination by Alcoa on the grounds of his impairment, post-traumatic stress disorder (PTSD). Those allegations were expanded on by Mr Barrett in an unsigned letter to the Commissioner dated 22 February 2007.
5 Mr Barrett alleges that in late 2005 or in early 2006 he took objection to the way in which a manager employed by Alcoa was treating a female employee. He said he was then victimised because of his objections. This conduct ultimately led to Mr Barrett suffering such a level of stress and anxiety that in April 2006 he was declared unfit for work as he was suffering from PTSD. Mr Barrett says that he notified Alcoa that he was unfit for work around 9 April 2006 and he lodged a workers compensation claim in May 2006. There followed a series of medical certificates provided by Mr Barrett to Alcoa which stated that he was unfit for work until 25 November 2006, but that he would look at return to work options when fit. Subsequently, his GP provided a workers compensation progress medical certificate saying that Mr Barrett was unfit for work until 28 November 2006 but that he could attempt to begin a return to work programme which Alcoa had provided in August 2006.
6 Mr Barrett's medical practitioners then advised that he was fit to return to a restricted work pattern from 28 November to 12 December 2006, and on 11 December 2006, Mr Barrett's psychiatrist
(Page 5)
- completed a certificate stating that he was fit to resume all of the duties of his usual employment. This was also verified on 14 December 2006 by Mr Barrett's GP and by his psychologist. Mr Barrett alleges that Alcoa unlawfully discriminated against him during this period of time, on the grounds of his impairment, in particular because his illness was mental rather than visibly physical (such as would be the case with a broken bone) Alcoa did not accept the diagnosis as a valid illness or medical condition. Further, Mr Barrett says that because his injury was not a visible injury, he was unfairly required to obtain proof of his illness from various specialists. Mr Barrett says this constitutes unlawful discrimination on the ground of impairment under the Act because Alcoa treated him less favourably than it would have treated another employee who had a visible physical medical condition. Mr Barrett cites a number of examples of how he says this discrimination was manifested.
7 Mr Barrett was on sick leave and subsequently annual leave from 9 April 2006 until October 2006 and has not been paid since then. He has not returned to work. He claims he has been fit to return to work since 22 November 2006 but that his employer has not allowed him back on the work site. Mr Barrett alleges to the Commissioner that Alcoa's unwillingness to accept that he is now fit to return to work and its alleged refusal to allow him to return to work constitutes unlawful impairment discrimination under the Act. In particular, Mr Barrett says Alcoa requires him to attend a specialist selected by Alcoa to provide a medical clearance, when employees with visible physical injuries would be required to obtain a clearance from the site health officer as specified in the relevant Alcoa policy.
8 Mr Barrett has commenced proceedings for a workers compensation claim and we note that for the purposes of those proceedings Alcoa has accepted liability to pay Mr Barrett his weekly payments claimed from 9 April 2006. We assume that this acknowledgment by Alcoa also extends to paying Mr Barrett from October 2006, but we have not been advised if this is the case.
9 Mr Barrett has also commenced proceedings related to Alcoa's alleged conduct in the Australian Industrial Relations Commission (AIRC), the Office of Workplace Safety, the Department of Mines, and WorkCover and lodged a complaint with the Federal Privacy Commissioner. Mr Barrett claims that Alcoa's position "of refusing to acknowledge my competency on the basis of past or perceived impairment negates my basic rights to work, earn my living and be part of my work community".
(Page 6)
10 Alcoa denies the allegations of unlawful conduct under the Act. Alcoa says that it is entitled to determine Mr Barrett's fitness for work, through independent medical reports, and that the continued failure of Mr Barrett to attend medical appointments or to allow disclosure of medical reports to Alcoa is evidence that Mr Barrett has failed to co-operate in the employment relationship. In particular Alcoa says Mr Barrett has not conducted himself in a manner which could be called reasonable co-operation. Alcoa claims that Mr Barrett has failed to provide any cogent evidence to support his contentions of unlawful conduct under the Act.
11 The various disputes between Mr Barrett and Alcoa culminated on 6 February 2007 when Alcoa sent a lengthy letter to Mr Barrett setting out the history of his workers compensation claim and his extended sick leave application, as Alcoa perceived it, and details of his continued refusal, in Alcoa's view, to attend various appointments to substantiate his claims. Alcoa denies that it barred Mr Barrett from returning to work as Mr Barrett claims but that it requires that he provide a medical certificate confirming his ability to attend and that he failed to attend a meeting to discuss these matters. In that letter, Alcoa deals with Mr Barrett's employment and his future with the company; it seeks to ensure that it satisfies its duty of care to Mr Barrett and to others in the workplace and advises, on page 10:
"Alcoa proposes to terminate your employment. Before Alcoa makes a decision on your future employment, I request that you advise Alcoa in writing … by the close of business on Wednesday 21 February 2007 of anything you consider relevant to Alcoa's decision about your employment".
12 It was this perceived threat by Alcoa in its letter of 6 February 2007 that led to Mr Barrett lodging his complaint with the Commissioner and the Commissioner then applying to this Tribunal for an interim order injuncting Alcoa from terminating Mr Barrett's employment.
The application to the Tribunal
13 The Commissioner in her application requests that on or before 21 February 2007 the Tribunal make the following orders:
"1. until further order, the respondent is restrained from terminating or proceeding to terminate the applicant's employment with the respondent, pending determination of the applicant's complaint of impairment discrimination
- against the respondent, lodged with the Commissioner for Equal Opportunity on 13 February 2007; and
- 2. the parties have liberty to apply on 48 hours notice; and
3. there be no order for costs."
14 We have taken the Commissioner's reference to "the applicant's employment" in proposed order 1 to mean Mr Barrett rather than the Commissioner.
15 Alcoa's solicitors filed an affidavit with various attachments with the Tribunal and we heard oral submissions from counsel for the Commissioner and Alcoa on 21 February 2007. We adjourned proceedings on that day until 1 March 2007 to allow the parties to file any relevant additional material and for delivery of our decision and oral reasons. The adjournment was ordered based on Alcoa's undertaking not to take any action with respect to Mr Barrett's employment pending our decision.
16 This is an edited version of the reasons delivered on 1 March 2007.
Legal principles
17 The principles to be applied in determining an application for an interim order under s 85 and s 126 of the Act should follow the principles of injunctive applications under the general law (Davies v University of New England (1994) EOC 92-103). In Michael v State Housing Commission (1996) EOC 92-829 and Penny v State Housing Commission (Unreported, Equal Opportunity Tribunal of Western Australia; 11 November 1996) those principles were stated as follows:
1. Is there a serious question or issue to be tried?
2. What is the balance of convenience, that is, will the harm to Mr Barrett if the injunction is not granted outweigh the benefit to Alcoa if the injunction is not granted?
3. Are the available remedies adequate to compensate Mr Barrett?
18 We note that in decisions regarding these sections of the Act by the former Equal Opportunity Tribunal, the complainant to the Commissioner, rather than the Commissioner herself, was always the party before that Tribunal seeking the interim order. There is no question
(Page 8)
- before us as to whether or not the Commissioner has the power to bring these proceedings and it is clear that she does so under s 85.
19 We have considered these three principles in the context that the power in s 126 is one that we should not exercise lightly. We are of the view that we must exercise caution in exercising our discretion in the Commissioner's favour in these circumstances, in that to grant an interim order would be to directly interfere with the employment relationship between Mr Barrett and Alcoa and it would deprive Alcoa of its lawful rights under that employment arrangement. We note that in Penny v State Housing Commission the President of the then Equal Opportunity Tribunal, when considering whether she should impose a new tenancy agreement on a landlord stated at page 9 that:
"An order that includes a term that the parties agree to abide by the terms of the tenancy agreement as it existed prior to 8 October, would seem to be inappropriate unless it was conditional on all the breaches being remedied forthwith. It would hardly be fair to inflict on a landlord a new tenancy agreement when there are continuing breaches of the previous agreement and no apparent prospect of those being remedied."
20 Another question that we have considered was the extent of the order sought and its duration, noting that the wording of the requested order was too broad and uncertain given that it could relate to any conduct of Alcoa regarding Mr Barrett (including matters unrelated to the impairment discrimination claim) and it did not include a time frame for its operation.
Serious issue to be tried
21 With respect to whether or not there is a serious issue to ultimately be tried if the complaint is referred to this Tribunal (under s 90(2) or s 93) we must decide whether Mr Barrett's allegations to the Commissioner are supported by adequate evidence to identify an allegation of unlawful discrimination under the Act. However, we should not, and have not, considered the merits of Mr Barrett's claim. We have not made any findings of fact as to whether or not Mr Barrett's allegations are true. We have only considered whether, if they are true, they would lead us to a conclusion that there is a serious issue to be ultimately tried.
22 Mr Barrett's first allegation is that Alcoa unlawfully discriminated against him during the period April to November 2006 on the grounds of his impairment because his illness PTSD is a mental injury, rather than a visibly physical injury and Alcoa did not accept the diagnosis of PTSD as a valid illness or medical condition.
(Page 9)
23 Mr Barrett says that because his injury is not a visible injury, Alcoa unfairly requires him to obtain proof of his illness from various specialists. Mr Barrett says this constitutes unlawful discrimination on the ground of impairment under the Act, because Alcoa treated him less favourably than it would have treated another employee who had a visible physical medical condition. Mr Barrett contends that this is the relevant comparator in the substantive proceedings before the Commissioner and ultimately before this Tribunal if his complaint is referred by the Commissioner.
24 Second, Mr Barrett alleges to the Commissioner that Alcoa unfairly discriminated against him on the grounds of his impairment because Alcoa has not allowed him to return to work, despite being certified as physically fit to do so.
25 Mr Barrett alleges to the Commissioner that Alcoa's unwillingness to accept that he is now fit to return to work and Alcoa's alleged refusal to allow him to return to work constitutes unlawful impairment discrimination under the Act. In particular, Mr Barrett says Alcoa requires him to attend a medical specialist selected by Alcoa to provide a medical clearance, when employees with visible physical injuries are only required to obtain a clearance from the site health officer. Mr Barrett says he has therefore been discriminated against within the meaning of s 66A of the Act and that discrimination is unlawful under s 66B of the Act.
26 Mr Barrett also claims that the perceived threat to terminate his employment is made for an unlawfully discriminatory reason.
27 It appears that Mr Barrett also alleges indirect discrimination by Alcoa under s 66A(3) of the Act, which states that on the ground of the impairment:
" … a person (in this subsection referred to as the ''discriminator") discriminates against another person (in this subsection referred to as the ''aggrieved person'') on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a) with which a substantially higher proportion of persons who do not have the same impairment as
- the aggrieved person comply or are able to comply;
- (b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."
28 Alcoa denies each of these allegations of unlawful conduct under the Act. Alcoa contends that while it holds this view and this view is before us, we should not exercise our powers to grant an interim injunction. Alcoa claims that Mr Barrett has failed to provide any cogent evidence to support his contentions of unlawful conduct.
29 Section 66A sets out the definition of impairment under the Act. If Mr Barrett's complaint is referred to this Tribunal by the Commissioner, he will need to prove on the balance of probabilities that he has an impairment within the Act and that Alcoa treated him less favourably than in the same circumstances or in circumstances not materially different, Alcoa would treat a person who does not have the impairment.
30 We have set out Mr Barrett's understanding of what the comparator is. We make no findings as to whether or not that is the correct comparator. However, it is a fundamental issue that would need to be decided in any hearing before this Tribunal.
31 With respect to a claim of indirect discrimination, Mr Barrett would need to show on the balance of probabilities that Alcoa requires him to comply with a condition that a substantially higher proportion of people employed by Alcoa who do not have PTSD are able to comply and which is not reasonable having regard to his circumstances and with which he does not or is not able to comply.
32 Mr Barrett must also establish a causative link between the alleged discriminatory conduct and his impairment. Further, to give some purpose to his claim, he must establish some loss.
33 The question before us is whether Mr Barrett, through the Commissioner, has provided adequate evidence, so that we can say there is a serious issue to be tried. Under s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), this Tribunal is not bound by the rules of evidence. We may inform ourselves in any way we think fit. In order to do that, where appropriate, we will allow hearsay evidence.
(Page 11)
34 Some of the evidence put forward by Mr Barrett is hearsay. Some goes to matters other than what he must prove. Much of the evidence comprises what Mr Barrett says happened, without supportive or corroborative evidence; but he may bring that kind of evidence, if it is relevant, before the Commissioner or subsequently before this Tribunal in due course. At this stage, it is not strong evidence that Mr Barrett has presented, but on balance, we are of the view that the evidence does establish an issue to be tried, a serious issue, albeit not strongly supported by the available evidence. This issue is whether Alcoa's conduct, evidenced by the letters and other documents lodged with the Commissioner, amounts to unlawful discrimination on the grounds of Mr Barrett's impairment within the meaning of that term in the Act.
Balance of convenience
35 We are not convinced by either the Commissioner's arguments or Alcoa's arguments with respect to the balance of convenience. We find that the balance of convenience is fairly evenly weighted. The harm to Mr Barrett (who is not, we note, a party to this application) if the injunction is granted does not clearly outweigh the benefit to Alcoa if the injunction is not granted. If the injunction is granted, Mr Barrett will no longer be employed; Alcoa on the other hand, will not be able to exercise its lawful rights under the employment agreement if those rights properly arise.
36 Alcoa's arguments regarding administrative matters, relating to dealing with Mr Barrett while he remains employed, are not strong, because Alcoa will continue to have administrative burdens regarding Mr Barrett, whether or not he is employed by Alcoa.
37 The Commissioner argues that Mr Barrett's position will be weaker before the Commissioner if he is not employed by Alcoa, in particular that the utility of any negotiations will be compromised if Alcoa dismisses Mr Barrett. We do not accept this. We have no clear evidence that Alcoa will terminate Mr Barrett's employment, although ultimately that is not really relevant. It is on this point though that principles two and three merge as Mr Barrett's available remedies under the Act are adequate to compensate him if he is dismissed by Alcoa. If there is no ultimate beneficial objective allowed by granting the injunction, then we should not grant it, despite there being an issue to be tried.
38 In his opening, Mr Macdonald for the Commissioner submitted that the Tribunal must look at the application in the context in which it is made, that is, in light of the scheme and objects of the Act, and in that
(Page 12)
- context the injunction is required to enable the Commissioner to properly investigate Mr Barrett's complaint. This proposition was not put forward as part of the submissions on balance of convenience, but it does have some relevance.
39 The Commissioner is the applicant and the balance of convenience should perhaps be considered in light of how the grant or refusal of her application would affect her ability to exercise her functions and powers under the Act. No argument or evidence was really put before us in this regard, except in the context that dismissal would affect Mr Barrett's negotiating position with Alcoa before the Commission, and it is difficult to sensibly conclude on it. On balance, we are of the view that the status of Mr Barrett's employment would have no real bearing on the Commissioner's ability to investigate the complaint. She should be able to access the same material and require the same responses from Alcoa whether or not Mr Barrett is employed. We are not convinced that it would necessarily have a negative effect on conciliation by the Commissioner.
Available remedies
40 What are Mr Barrett's available remedies? If the matter is referred to us by the Commissioner, then Mr Barrett would, if successful, have available to him a claim for damages under s 127 of the Act. That is limited to an amount of $40 000. Mr Macdonald, for the Commissioner, argued that that may be an inadequate amount, in light of the length of time that these proceedings may go on, but that claim for damages needs to be looked at in the context of the whole of s 127.
41 The Tribunal may, under s 127 of the Act, reinstate Mr Barrett. That would give him a contractual right to claim lost wages and benefits from the date of reinstatement. The $40 000 cap therefore would not apply to that contractual right. We note in this regard that since we heard this matter last week, Alcoa has accepted liability for Mr Barrett's wages under the workers compensation claim and Mr Barrett's claim is likely to therefore be a lower amount.
42 Whilst the principle is usually to ask whether damages are adequate, the situation in this case is that damages are not the primary potential remedy available to Mr Barrett. He has available to him a perfectly adequate remedy under the Act, if he is successful in his complaint before the Tribunal, namely reinstatement. On that basis, it is not appropriate for us to invoke our injunctive powers to stop Alcoa taking action under the employment contract with Mr Barrett, if indeed, that is what it intends to do. There was, in fact, no real evidence before us that Alcoa intended to terminate Mr Barrett's employment and there was discussion at the hearing as to whether or not this application was therefore premature. We do not believe our decision would in any way frustrate the objects of the Act.
(Page 13)
43 We therefore dismiss the Commissioner's application.
44 The respondent sought costs and on 1 March 2007 the Tribunal made orders for written submissions on that application.
Costs
45 Section 87(1) of the SAT Act provides that unless otherwise specified in the SAT Act, the enabling Act (in these proceedings, the Act), or an order of the Tribunal under s 87, the parties bear their own costs in a proceeding before the Tribunal. There is no provision as to costs in the Act.
46 Despite s 87(1), s 87(2) of the SAT Act clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act -Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries(WA) [2005] WASAT 206, referring at [8] to Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53. Alcoa argues that this is a broad discretion.
47 We are of the view that the Tribunal should not generally make an award for costs in proceedings bought under the Act unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings; has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes -Chew and Director General of the Department of Education and Training [2006] WASAT 248, at [18].
48 Alcoa argues that as the Tribunal essentially dismissed the Commissioner's application as there is an adequate remedy of reinstatement (and consequential restoration of any contractual entitlements) available to Mr Barrett under s 127 of the Act, there was a perfectly adequate remedy which was obvious from the outset. Alcoa submits that the Commissioner did not put anything before the Tribunal by way of submissions or evidence to meet Alcoa's submissions that reinstatement is not an adequate remedy in the circumstances.
(Page 14)
49 Mr Barrett states in the further material provided to the Tribunal by the Commissioner that he does not want to be in a position where he has to fight for reinstatement. Alcoa submits that this reference does not go to the adequacy of the remedy but to the balance of convenience.
50 Alcoa says that on this basis the application should never have been made. Alcoa seeks an award of costs because:
(a) the Commissioner knew or should have known from the outset that there is a perfectly adequate remedy under the Act; and
(b) in the circumstances, the respondent ought not to bear the costs of defending the application and making the costs application.
51 The Commissioner submitted that in considering whether to make the application for an interim injunction, she considered the adequacy of compensation that Mr Barrett might be awarded by the Tribunal for any loss of income he might experience if he were dismissed by the respondent and his complaint referred to the Tribunal. The Commissioner also took into account the availability of a remedy by way of reinstatement under s 127 of the Act.
52 The Commissioner maintained that it was not obvious that reinstatement was a "perfectly adequate" remedy available to Mr Barrett, nor that it should have been obvious. The Commissioner estimated that it would take at least several months for the Commission and the Tribunal to expeditiously investigate, refer, hear and dispose of Mr Barrett's complaint. The Commissioner formed the view on the limited materials available that there was a risk that even if the Tribunal were to order Mr Barrett's reinstatement, his loss of income could exceed the jurisdictional limit of $40 000 under the Act. Reinstatement alone might not cure that possible deficiency.
53 Further, the Commissioner considered that there was a risk that reinstatement, if and when it might be eventually ordered, may not adequately make good any disadvantage or hardship that Mr Barrett might experience between his dismissal and receiving the benefit of that remedy, a period that could run to some several months.
(Page 15)
54 The Commissioner considered the adequacy of remedies on the information available at the time and in good faith. The Commissioner argued that although the Tribunal determined that reinstatement is an adequate remedy in Mr Barrett's case, this did not mean that it was obvious that the application should never have been made. Rather the Commissioner says it was a proper and arguable issue at the time of the application.
55 Alcoa also submits that we should exercise our discretion in this case to award costs having regard to the conduct of Mr Barrett including:
(a) the matters identified in Alcoa's outline of submissions concerning whether Mr Barrett came before the Tribunal with clean hands;
(b) that further material put by Mr Barrett through the Commissioner, after the hearing, included matters that were irrelevant, hearsay and reliant upon alleged statements made in without prejudice discussions in conciliation conferences before the Australian Industrial Relations Commission; and
(c) that it is open to the Tribunal to find that Mr Barrett chose not to put all material before the Tribunal (or the Commissioner) that might have been relevant to the Commissioner's application before the Tribunal. In particular, in this regard Alcoa referred to the report of Dr De Felice that was the subject of submissions by Alcoa, both at the hearing and in its written submissions filed on 28 February 2007 in response to the further material submitted by Mr Barrett.
56 Alcoa says it was open to the Commissioner not to proceed with this application after being put on notice by Alcoa about its concerns regarding the conduct of Mr Barrett, yet the Commissioner chose to pursue the application notwithstanding her knowledge of that conduct.
57 The Commissioner was also aware of the offer made by Alcoa to provide undertakings in return for reciprocal undertakings by Mr Barrett. Mr Barrett refused to provide those reciprocal undertakings, yet the Commissioner chose to pursue the application, notwithstanding her knowledge of Mr Barrett's refusal.
(Page 16)
58 Alcoa submits that the Commissioner, in adopting Mr Barrett's position notwithstanding his conduct, also came to the Tribunal with unclean hands. The Tribunal should not view the Commissioner as being in any different position to any other litigant in this regard.
59 In response, the Commissioner says that at the time of making the application to the Tribunal, there was no reasonable way that she could form a view about Mr Barrett's reasons for not disclosing Dr De Felice's report. The decision to make the application was based on the available materials, which were considered adequate at the time. The Commissioner has yet to form a view about the non-disclosure of the report, but may do so as part of the investigation into Mr Barrett's complaint.
60 As to matters that the respondent claims are irrelevant, hearsay and reliant upon alleged statements made in without prejudice discussions, the Commissioner, at the time of accepting a complaint, often receives accompanying material of that kind. The Commissioner, in good faith and at the Tribunal's request, provided the Tribunal with information that Mr Barrett wished to be placed before it. The Commissioner says it is one thing to suggest that some of that material lacked evidentiary rigour, as it might in an urgent interim order application, but it is quite another to assert that the Commissioner, in adopting Mr Barrett's position, "also came to the Tribunal with unclean hands". This submission is objectionable and the Tribunal rejects it.
61 We accept that the Commissioner has not acted in any way improperly or "with unclean hands" in these proceedings. The Commissioner says we should reject Alcoa's submission that she should not have proceeded with the application because it and Mr Barrett could not reach agreement on a number of undertakings. Those negotiations were entered into in good faith. Mr Barrett's refusal to accept Alcoa's conditions on undertakings was matched only by Alcoa's refusal to accept his. That is, in the Commissioner's view, where the matter rests.
62 Finally, Alcoa argues that this is not a case where the Tribunal should be concerned about remaining readily accessible to the public at relatively low cost. This is a case where the Commissioner, legally represented, has commenced an application against an employer, effectively as the advocate for the position of a complainant and that such applications should not be made in disregard of the costs to a respondent.
(Page 17)
63 The Commissioner says she made the application in good faith under the Act and not "as Mr Barrett's advocate". She says to think otherwise is a misreading of the Commissioner's powers and responsibilities under the Act.
64 We are concerned about Mr Barrett's selective release of information to the Tribunal (and perhaps to the Commissioner). We were not fully apprised of all relevant evidence. However, this is the Commissioner's application and not Mr Barrett's.
65 We can find no circumstances to warrant the exercise of our discretion in this case and how it was presented to activate an exercise of our discretion in favour of the respondent. We therefore dismiss Alcoa's application for costs.
Orders
1. The application for an interim injunction is dismissed.
2. The application by the respondent for costs is dismissed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
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Human Rights Law
Legal Concepts
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Injunction
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Costs
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Standing
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Res Judicata
7
5
2