Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd

The case of Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd was heard in the Federal Court of Australia. The applicant, the Construction, Forestry, Mining and Energy Union, sought an interim injunction to reinstate a member, Vernon Kemp, to his former employment with the respondent, Peabody Energy Australia Coal Pty Ltd. The applicant alleged that the respondent contravened section 351(1) of the Fair Work Act 2009 (Cth) by terminating Mr Kemp's employment because of his physical disability, Type 1 diabetes. The respondent denied any contravention of section 351(1) and argued that the termination was due to Mr Kemp's failure to comply with management plans to control his risk of suffering hypoglycaemic episodes and because such management plans were ineffective. The respondent also claimed that the termination fell within the exceptions set out in section 351(2) of the Fair Work Act.

The legal issues the Court was required to decide were whether the applicant could demonstrate a prima facie case and whether the balance of convenience favoured granting the injunction. The Court applied the principles from Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 and CEPU v Blue Star Pacific Proprietary Limited [2009] FCA 726, which required the applicant to show a sufficient likelihood of success in the principal proceeding at trial and that the balance of convenience favoured the applicant. The Court found that there was a prima facie case that the respondent had contravened section 351(1) because one of the reasons for the termination was that the plan to manage Mr Kemp’s diabetes was ineffective, suggesting that the termination was, in part, because of his physical disability. The Court also considered the balance of convenience, which was influenced by the level of risk that Mr Kemp may experience further hypoglycaemic episodes and create a risk of injury to himself and other workers. The Court concluded that the balance of convenience favoured an injunction requiring the respondent to re-employ Mr Kemp until the trial, subject to certain conditions.

The Court ordered that Mr Kemp be reinstated to his employment with the respondent, subject to specific conditions, including monitoring and managing his medical condition, checking blood sugar levels, carrying a glucometer and a source of glucose and carbohydrates, treating any symptoms of low glucose, and keeping a diary recording his compliance with the conditions. The Court also ordered that Mr Kemp repay a certain amount to the respondent’s nominated financial institution, that the applicant file and serve a statement of claim and the respondent file and serve a defence, and that the proceeding be listed for final hearing. The costs of the interlocutory application were reserved.