DUBOW v Aboriginal and Torres Strait Islander Legal Service
[2013] FCCA 1357
•24 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUBOW v ABORIGINAL AND TORRES STRAIT ISLANDER LEGAL SERVICE | [2013] FCCA 1357 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – general protections – workplace right – complaint or inquiry in relation to employment – objectionable term – whether there was a right to complain to the Fair Work Ombudsman – appropriateness of reinstatement – application dismissed. |
| Legislation: Fair Work Act2009 (Cth), ss.340, 341, 356, 371, 391 |
| Cases Cited: Tim Donaghey, Termination of Employment (LexisNexis Australia , 2nd ed, 2013) |
| Applicant: | YOLANDE DUBOW |
| Respondent: | ABORIGINAL AND TORRES STRAIT ISLANDER LEGAL SERVICE |
| File Number: | BRG 242 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing date: | 24 April 2013 |
| Date of Last Submission: | 24 April 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2013 |
REPRESENTATION
| The applicant appeared on her own behalf |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
That the applications filed on 22 March 2013 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 242 of 2013
| YOLANDE DUBOW |
Applicant
And
| ABORIGINAL AND TORRES STRAIT ISLANDER LEGAL SERVICE |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The applicant is a lawyer employed by the respondent, the Aboriginal & Torres Strait Islander Legal Service (“the Service”) at its Bundaberg Office. I will refer to the Service only in relation to its Bundaberg office. By letter dated 15 April 2013, the Service wrote to the applicant informing her of its requirement for her to show cause as to why her employment should not be terminated. It advised her that she had two days within which to show cause. The applicant’s response was to apply to this Court for interim relief to restrain the Service from acting upon its notice.
The basis of the applicant’s claim is founded in her allegations of breaches of a general protections made by her against the service in respect of her employment. These are presently the subject of conciliation before Fair Work Australia. No certificate has yet been issued by the Commission pursuant to s.371 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of those complaints. However, s.371(1) provides a jurisdictional basis for relief by this Court, insofar as it provides:
“General protections court applications
FWC conference to be held before application
(1) A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) the FWC has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
…”
The application today is one for an interim injunction. The matter first came on before this Court last Thursday afternoon. It came on late and ultimately, by agreement, was adjourned to Friday, when it was to be more fully argued. The applicant appeared by phone on both occasions. She was on a mobile phone and, unfortunately, that form of telecommunication proved to be unsatisfactory. The Service agreed not to act upon its notice until today and the matter was adjourned for hearing today.
In the meantime, the applicant wrote to the Court and the respondent by an email forwarded at 11:12am yesterday, 23 April 2013, in part in these terms:
“On Monday morning my cat suffred [sic] a Diabetic fit and after I resuscitated him, he has had several strokes. I am with him constantly and as there is a public holiday on thursday [sic], if I leave his [sic] with the vet for the Tuesday night to attend the hearing he will be left there alone for greater than he will be able to survive as there is no pone [sic] at the premises for at least 24 hours from Wednesday night, when I would still be in Brisbane:
I acknowledge receipt of the unsigned supplementary statement of Mr. Shane Andrew Duffy and as a quick submission state, the matters raised do not show that "damages" would not be a reasonable compensation for any "money" lost, if Mr. Duffy's self serving action was taken; and in any event the costings are all entirely hypothetical: Especially as the position is already funded for me to fulfil the role, by the Federal Governmnet [sic] grant. The likelihood of finding a casual of 30 years legal experience to be paid a higher salary than I would be also unlikely.
Accordingly I respectfully request that the Federal Circuit Court allow an order to be made in Chambers without oral hearing pursuant to Section 13(3) attached and with Consent of the parties under section 54.”
She then attached her submission. At the hearing today, the applicant was telephoned at a telephone contact included in her email, that being of a vet’s surgery in Bundaberg. She was afforded an opportunity to make arrangements at that time to be present for the conduct of the proceeding by telephone and to make and listen to the submissions that were to be made by the respondent, and to reply. However, notwithstanding that opportunity, she indicated that she was content for the application to proceed in her absence and terminated the phone call.
She has been afforded all reasonable opportunity to participate in the process by phone today. Notwithstanding the fact that the matter was listed for hearing in anticipation of her attendance and the difficulties that communication by means of mobile telephone have presented, I am satisfied that she is aware of the processes involved in the proceeding. She has confirmed her interest, intent and consent for the Court to proceed and I am satisfied that all reasonable efforts have been made to accommodate her special circumstances.
In my view the interests of justice require that the application be resolved and that it be resolved relatively quickly. It is important that the respondent be in a position to move on, particularly having regard to the current status of her employment as a stood down employee. Furthermore, it is in the interests of the applicant to have the matter resolved so that she too may move on. On that basis, I will proceed to hear the application.
First the background facts. The applicant commenced employment with the Service on or about 6 September 2010. She was employed by the Service as a legal practitioner in its Civil and Family Law section at its Bundaberg office. Her duties included support to outreach services at Hervey Bay, Murgon and the surrounds of those districts. She was employed initially by contract to 30 June 2011, that is, to the end of the 2010/2011 financial year. The contract was then renewed on 1 July 2011 and, in due course, was due to expire on 30 June 2014.
I note that this period coincides with the Commonwealth funding arrangement in respect of the position which she currently occupies. Her duties appear to have been rearranged from October 2011 because of a loss of support staff at the Hervey Bay office. She then appears to have commenced to carry out some criminal law duties. She says her duties expanded because of further changes within the Service’s office at Bundaberg. A new regional manager was appointed in early 2012 which, of itself, seems to have created some tension.
Her duties continued, although she complained that by reason of particular her health circumstances she had to alter her work arrangements. Concurrent with these events, she also had financial difficulties and it appears that she filed a debtor’s petition which resulted in the appointment of ITSA as her trustee. It would seem that save for her bankruptcy and the need to negotiate that matter with the Queensland Law Society, there was no other extraordinary matters that appear to have affected her overall employment history.
In December 2012, she was requested to provide figures and/or statistics relevant to her duties with the service for compilation for the Commonwealth Attorney-General’s Department. The requested figures were to be prepared by support staff. Upon receipt of those, she became concerned that the figures were not supportable. She says that by reason of that matter she was concerned about the consequences of over-reporting the figures. She considered it necessary to advise somebody in authority regarding the figures.
Consequently it seems that she reported these matters to a senior officer in the Attorney-General’s Department, rather than to somebody within her own organisation. Shortly thereafter, in January 2013, the applicant says she then had a medical complaint which she says, again, required interaction with her line manager because it impacted her ability to perform some of her services. It is these factors that seem to have led to the difficulty which the applicant now has.
The applicant’s response to her interaction with management was to form the view that she was being harassed. In her affidavit, commencing at paragraph [36], she expressed it in these terms:
“36. The following Monday I received a further email from the Human Resources Manager congratulating me on my recovery and bizarrely suggesting I see her at Brisbane on Thursday.
37. The Human Resources Manager having received a cryptic medical certificate from my doctor then wished to discuss me with her. I refused and submitted my allegation of Harassment to the Workplace Ombudsman.
38. Meanwhile, on 20 February the Regional Manager of Hervey Bay sent me an apology for being caught out by the client in regards to the Statutory Declaration provided by the client and seeking “mediation.” [I note that this relates to another matter which is referred to in correspondence that is not immediately relevant to the issues I have just identified.] As the apology was written by email and copied to the Chief Executive Officer, Principal Legal Officer and Human Resources Officer, I answered to the CEO. I was asked to accept the apology ~ which I did and found it insincere and unprofessional.”
The applicant continued at paragraph [40]:
“One matter from Hervey Bay the Regional Manager had referred the wrong party for advise [sic] regarding a mythical corporation that would make third party property claims on a nominal defendant basis …”
This concerns another matter addressed in the complaint of 19 February 2013 of her affidavit continued:
“… The inability of the regional manager at Hervey Bay to competently deal with basic matters was a source of constant frustration and conflict. However, the events with the prior court Support Officer and past matters indicated complaints regarding her abilities led to termination.
41. On 7 March 2013, I received a telephone call from a Workplace Ombudsman investigator/enquiry officer named Andrew …”
Again, I note that this is in respect of her complaint to Fair Work Australia.
“… We discussed the complaints raised. He expressed the view that the contract of employment was not binding as not registered and there was no enterprise bargaining agreement in place and said there was a technical breach. I advised him to call and speak with Ken Georgetown, who as Chairman of the Board, may be interested, and there was a Board meeting scheduled that weekend.”
She then continues:
“42. On 8 March 2013 late in the evening I received, by email my Disciplinary Concerns Outcome letter, placing me on notice of “show cause.” Matters addressed in the reply to the Hervey Bay Apology and the allegation of harassment by the HR Manager were said to be conduct breaching care share and respect as “core principles” Principles I note that are not in my contract of employment or list of duties.”
I should note at this stage that those paragraphs of the affidavit do not appear to make a great deal of sense when read as they were. However, they do, of themselves, identify some of the issues that later became the subject of complaint and were addressed in the complaint made to the Fair Work Ombudsman, which is particularised at annexure YVFD-2 to her affidavit.
In short, the material indicates that there were numerous occasions of intra-office conflict, the basis of which I do not propose to resolve in the course of this application, that were the subject of complaints made by the applicant against the Service. For reasons that I will address shortly, they do appear to be complaints that concerned her employment as they all related to matters particularly specific to her. In a very detailed letter of 8 March 2013, the CEO set out the complaints made against the respondent by the applicant. In addressing those complaints, he concluded his summary in these terms:
“Having investigate [sic] your concerns as to data and alleged harassment by our Human Resources Manager – I find that neither are substantiated. However:
1.I am concerned that the former was raised in a manner indicating some form of deliberate distortion of the data and the latter on its face appears to have been either a frivolous or vexation [sic] complaint (and/or an attempt at bullying). Such gives rise to a consideration as to whether formal disciplinary action is warranted.
2.I am also of the view that various communications on your part (referred to above) fall way outside our core principles of care, share and respect – and thus give rise to a breach of our Code of Conduct.
3.I am also concerned as to whether your reference to Dr John Boersig (as outlined above) was raised in a manner which was intended to constitute some form of threat.
4.I am also concerned as to whether you intend to continue to provide outreach services to our Hervey Bay region and/or whether some of your communications in this regard might constitute a breach or repudiation of your employment contract. In this regard, I would be content at this juncture with written confirmation from you that you intend to honour your obligations in this regard.
5.I am also concerned at what appears to be (reference above) a totally unjustified allegation of bias against our Principal Legal Officer.
6.I am also concerned as to what appear to be totally unjustified comments made against our Director of Civil Law to the effect that she unilaterally sought to alter your employment of contract [sic].
I also refer you to Part 2.10 of our Conduct – Staff Grievance Policy – in terms of the potential applicability to same of our Discipline Policy.
I now provide you with 10 business days from today’s date to show cause as why formal disciplinary action is unwarranted. You can utilise this opportunity to either endeavour to show cause and/or if you accept that a formal disciplinary action is warranted (in full or in part) – to use that opportunity to raise matters in mitigation of your situation.
I have refrained from drawing any definitive conclusions at this juncture as far as such has been possible – as in fairness to you I wanted to provide you with an opportunity to raise other matters of which I might not be aware, and which might impact upon my ultimate conclusions – for example – any other exchanges between yourself and our HR manager that I am currently unaware of and which you claim demonstrates harassment.
Please note that the 10-day show cause deadline will be strictly enforced. However, if for any reason you feel that such does not provide you with sufficient time to respond – I would be open to a request for an extension.
I close by repeating my above reference that I am not interested in receiving any resignation from you – unless it is given freely on your part.”
The applicant’s response was contained in an email she forwarded the next day, 9 March 2013, which, in part, was in these terms:
“On the basis of the findings you have made in your formal response, I would see no reason why you should not proceed to formal disciplinary action.
However, one would think the Fair Work Ombudsman in the midst of their enquiries relating to general protections, may consider such to be victimisation.”
It appears, however, the matter escalated on 15 March 2013. The CEO of the service wrote a letter to the applicant entitled “Disciplinary Concerns - Outcome Letter.” In that letter, having dealt with each of the complaints made, he concluded:
“I have thus concluded that a formal disciplinary outcome is warranted in relation to concern #2 and in part in relation to concern #1 – and thus provide you with two formal warnings in regard to such.
Various other concerns (as outlined above) have been dealt with informally via informal cautions. Given the totality of your conduct, I feel that I am perhaps being overly lenient with you. However, I want to be very clear: if there are any future substantiated allegations of misconduct of such a nature – I would find it very difficult to conclude anything other than the termination of your employment contract was warranted. Should such an eventuality arise, I will rely upon clause 17.1 of your employment contract (the no fault clause) – and simply provide you with one month’s notice. Given various communications by you (as well as feedback from other staff), I suspect that you fully expected to have your employment contract terminated. I can understand why – and you can thus count yourself fortunate that I have dealt with you in the manner that I have.
If you have been left in any doubt in terms of what I consider acceptable or unacceptable future conduct on your part – then please let me know. By way of an example, recent emails by you to our family law team (regarding the provision of a de-identified pro forma) is yet another example of communications at odds with care, share and respect. I assume you know the communications to which I refer – if you do not – then I suspect there is little hope for you.
Such aside, I also take this opportunity to advise you that in the event that you conclude that my disciplinary outcome (the two formal warnings), is too severe – then under our Discipline Policy you are entitled to appeal my decision, in writing, within two business days. Any appeal request aside, such concludes this disciplinary process.”
The applicant appealed the CEO’s determination by her letter of 18 March 2013 which I need not restate, except to note that, in some respects, it could be interpreted that her submissions were, in part, impertinent. In response to her appeal, the CEO responded on 19 March 2013. He concluded in these terms:
“In conclusion, having considered the matters raised by you – I see no basis upon which to change my original decision as to the appropriate penalties – hence the two formal warnings stand.
I close by once again cautioning you to be more discerning in your communications and conduct. Various inflammatory comments made by you in your most recent email might suggest to some that you are doing your best to encourage me to terminate your employment contract. I have shown considerable restraint thus far and I believe, have dealt with you very leniently.”
I certainly concur with his observations. Not content with matters as they then stood, the applicant then wrote again on a date which is not noted but which follows the CEO’s letter of 19/20 March 2013. Again, without necessarily restating all the matters contained in the letter, certain parts warrant observation. She stated, in part:
“In any event, I do not agree and cavil with any suggestion that I am subordinate to you! My role as a Legal Practitioner is completely different to yours as a Chief Executive Officer of a publicly funded social justice agency ... I am subordinate to my dead mother and my Chocolate Boy Burmese cat: As you are neither of these, I remain sufficiently defiant to engage in lawful and requisite disclosure: The Fair Work Act allows and permits it, the Public Service legislation requires it as does my ethical standards of responsibility.” [Original emphasis]
She concluded her letter with this observation:
“As a Social Justice Agency the failure in Natural Justice and due process is outrageous:
As this has become farcical I take the Pirates of Penzance position on your Show cause request!”
The observations by the applicant were in my view entirely gratuitous and, no doubt, led to what subsequently followed. The CEO’s response was to appoint the Director of Criminal Law to conduct a disciplinary investigation. He conducted that investigation and concluded, having regard particularly to the words in the show cause letter, in these terms:
“In short the words particularised in the ‘show cause letter’ are resistant to and in defiance of the authority of the Chief Executive Officer of this organisation and I so find. This finding is strongly supported by Ms Dubow’s subsequent letter to you dated 28 March 2013.”
In his finding as to show cause he noted that the applicant had failed to demonstrate why a formal disciplinary action was unwarranted and proceeded then to recommend that the applicant have two days from the date of the letter to show cause in writing as to why the penalty was unwarranted, in which time, depending on the course that she took, she might have the opportunity to resign. Following that letter by the director, some of the correspondence that I have earlier referred to emerged that ultimately led to the letter of 15 April 2013, the genus of these proceedings. In that letter, the CEO stated:
“I refer to my earlier correspondences relating to a show cause situation regarding an allegation of insubordinate conduct on your part. I also refer to your communications in response.”
He made the observation the matter had been delegated to the Director of Criminal Law and also referred to his findings and recommendations and noted that he accepted them. He noted that it was open to him to conclude that her conduct would warrant dismissal pursuant to clause 17.1 of the employment contract. I note that he had referred the applicant to that particular provision in earlier correspondence. He concluded by stating this:
“Were I to pursue this option (under 17.1) I would be further minded to elect that you be paid one months’ salary in lieu of the notice period.
As any decision in this regard is part of a formal disciplinary process, I am thus affording you two business days to show cause (should you so wish) as to why you believe this proposed disciplinary outcome is unwarranted (should you so believe). Accordingly, I will make my final determination until Thursday the 18th April 2013 – taking into account any further related communications from you in so doing.”
That resulted in the application before the Court. I should note that in the meantime the applicant had commenced proceedings before Fair Work Australia.
In order to obtain an injunction, it is necessary for the applicant to demonstrate that there is a prima facie cause of action and that the balance of convenience favours the granting of the relief. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [82], Gummow and Hayne JJ noted:
“By using the phrase “prima facie case,” their Honours[1] 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 …”
[1] Referring to their Honours in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
That this was the sense in which the Court was referring to the notion of prima facie case is apparent from the observations 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.”[2]
[2] Beecham Group Ltd v Bristol Laboratories Pty Ltd at 622.
In this instance the applicant largely contends that the Service has acted in contravention of a general protection. In particular, it would seem that the general protection which is relied upon is one provided for in respect of a workplace right under s.341(1)(c)(i) and/or (ii). Section 340 provides that:
“Protection
(1) A person must not take adverse action against another person:
…”
In this instance the workplace right, as I have noted, is that under 341(1)(c)(i) and/or (ii), which provides:
“Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
…”
As I comprehend it, the applicant’s complaint is that the workplace right she seeks to protect is her right to make a complaint to the Fair Work Ombudsman and/or to pursue proceedings before the Fair Work Commission. However, it also seems to me that there is scope to argue that the matters that she is addressing in the course of her complaint with the employer and the subject of the investigation concern her right to make a complaint or inquiry in relation to her employment. I make those observations conscious of my earlier decision in Harrison v In Control Pty Ltd [2013] FMCA 149. In that case I was quite adamant in my view that an employee does not have a workplace right if an employee to make a complaint at large and it is not directly related to the employee’s employment.
A complaint at large I think was amply demonstrated in that case where the employee there sought to complain about the direction in which the employer sought to take the business. That was a matter which, in my view, necessarily is relevant to the employment relationship. In this case the complaints do relate to the employment relationship. They related to, for instance, the manner in which the employee says she was disciplined, the basis for discipline, the penalty that was imposed and, more particularly, the penalty that was proposed in respect of discipline. I think they are the sorts of complaints and inquiries in respect of employment which are meant to by governed by s.341(1)(c)(ii), but in any event even if they are not I think there is a serious issue to be tried in relation to that matter and a prima face basis for argument arises.
I turn now to the contention by the respondent that there would be no basis for the applicant to claim a prima facie right of action. I do not necessarily accept that the matters in the contract of employment that enable her to make a complaint in relation to her employment are not covered by an award or enterprise agreement in the sense that they may be matters which are subject to implication and thereby are not excluded, but in any event are again matters which, even if I am not correct at this time, could properly be argued as demonstrating a prima face right of claim.
It follows that I am at least content with the view that there is a prima face right of action in that, to use the words of the High Court, the applicant can maintain that she has a claim which, if at its best was to be proved, is more likely than not to succeed at trial subject to all the usual contingencies.
The real issue in this case concerns the balance of convenience. Again, accepting the applicant’s case at its best, there are a number of matters that first need to be considered. The real issue in this case is whether damages would constitute an adequate remedy.
I note that the contract provides for termination on a no fault basis on 28 days notice. Clause 17.1 of the contract provides for that. The applicant however contends that that clause is one which contravenes s.356 of the Act, which provides against objectionable terms. She says that clause 17.1 ought not be enforced against her because it contravenes s.356, which is in these terms:
“Objectionable terms
A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.”
I did afford her an opportunity on the occasion of her making oral submissions to provide me with some authority in support of the proposition that a provision like this constitutes an objectionable term. The term is a common provision in employment contracts. There is to my knowledge no authority to support the contention that it is an objectionable term, but recognising that there is no authority is, of course, a matter which is open to argument. However, I think it is one where the balance favours the view that her arguments under s.356 would probably fail.
That then leads me to the position where it would seem the maximum damages available would be essentially one month’s loss of pay which, of course, the respondent has offered to pay her in lieu of notice. If the applicant were dismissed and it was ultimately found that she had been unfairly dismissed, then, of course, the Court would have to consider the prospect of reinstatement. This is a matter which I think requires some consideration of the contractual terms of exercising the discretion. Section 391 of the Act deals with the remedy of reinstatement and provides that:
“Remedy – reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
…”
This is regarded as the primary remedy and it is contended, at least by the learned author of Termination of Employment[3] at paragraph [25.28], that:
“The provisions in the [Fair Work] Act re-stating that the order for reinstatement is the ‘primary remedy’ have brought focus back upon this remedy …”
[3] Tim Donaghey, Termination of Employment (LexisNexis Australia , 2nd ed, 2013).
The author noted that in Wild v Queensland Rail Limited [2012] FWAFB 9827 a full bench of the Tribunal of Fair Work Australia examined a ground of appeal setting out the basis upon which a single commissioner was said to have erred in terms of failing to give sufficient weight to the presumption in favour or reinstatement. The full bench consideration was in the following terms:
“The fourth particular is that the Commissioner failed to recognise the “presumptive” nature of the reinstatement remedy. The appellant has adopted a term by Commissioner Bissett in her decision in Richards v Regional Express Holdings Ltd T/A REX Airlines [2010] FWA 4230. The appellant submitted that “the decision and principle” was approved on appeal.” When dealing with a challenge against the use by Commissioner Bissett of the word “presumptive” the Full Bench on appeal said the following:
[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner's statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. REX's first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”
As to whether or not reinstatement would be appropriate in this case, regard must be had to two principal elements. First, the question of futility, and second the question of loss of confidence and trust. So far as futility is concerned, as I have already noted clause 17.1 governs the relationship between the parties in relation to the termination period. One has to seriously consider whether reinstatement is an efficacious remedy in circumstances where, all other matters aside, the respondent is in a position to simply serve a notice in terms of clause 17.1 and terminate the employment of the applicant, irrespective of whether it seeks to do so subject to a show cause provision or otherwise. The fact that the employer presently proposes to pay out the applicant’s one month’s notice in lieu of service suggests that reinstatement is inutile in these circumstances.
The other and perhaps more significant matter is the question of loss of confidence and trust. The respondent contends, understandably, that in these circumstances there is indeed a loss of confidence and trust. Again, referring to the observations made in broad terms by the learned author of Termination of Employment at paragraph [25.46], he stated:
“The degree to which trust can be maintained between parties in an employment relationship has also been found to be relevant. In [Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1991) 12 CAR 167], the [Australian Industrial Relations Commission (“the AIRC”)] considered reinstatement of dismissed employees after a protracted industrial confrontation. There, the AIRC held:
The issue to be decided is whether, following the experience of the dismissals, and the disputation that has followed, it is reasonable to expect that future cooperation to perform work is impossible. It is essential to distinguish between the relationship required to achieve the performance of work at the required standard and a relationship which involves mutual affection and friendship. In making this determination it is necessary to look at the total scene and to consider the various aspects of the potential relationship in perspective, whatever may be thought about its desirability.
…
The real issue is whether contracts of employment, if entered into, can, in the circumstances of this particular case, bring about a situation where it will be possible to achieve a sufficient level of co-operation to achieve a proper working relationship with the resultant successful enterprise. In my view the achievement of such a situation is not only possible but is likely to be achieved if reinstatement is effected.”
This case, of course, is somewhat different. Here it is apparent from the tenor of the correspondence between the applicant and the respondent that the relationship of respect and subordination which is essential in any large enterprise or organisation has simply evaporated. The applicant plainly has very little if any respect for management and management understandably has a genuine basis for its concern as to the applicant’s suitability for her employment given that she is employed as a lawyer who, in part, would be involved in the provision of legal advice.
While it is noted that there are no complaints about the applicant’s performance of her legal duties, the fact remains that a significant responsibility is reposed in her and it is obviously incumbent upon the respondent to have confidence in her capacity to perform her duties and properly exercise the judgement associated with the performance of those duties. No doubt the circumstances of this case would give reasonable grounds for apprehension about the applicant’s general judgment. I take into account the personal circumstances of the applicant. I understand that she lives in Bundaberg. She relocated to Bundaberg to take up this employment.
I am also conscious from material presented today that she has been sounding out prospective employers, so it seems to me on that basis that she is not averse to the prospect of employment mobility, irrespective of her current circumstances. In my view, damages would constitute an adequate remedy in the event that she was successful in prosecuting any action for unfair dismissal. I might add that in having come to that view I am also conscious that she is a bankrupt. She would require the leave of the Court or her Trustee would have to be prepared to prosecute proceedings on her behalf, but that is really a matter for her Trustee and not a matter for this Court. All up, having regard to all the factors that I ought consider, I am satisfied that the balance of convenience does not favour the granting of the award and I dismiss the application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 16 September 2013
3
5
2