Findley v MSS Security Pty Ltd
[2017] FCCA 466
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINDLEY v MSS SECURITY PTY LTD | [2017] FCCA 466 |
| Catchwords: INDUSTRIAL LAW – Application for interlocutory injunction – Applicant seeking orders that he be reinstated to employment but not be given duties or receive remuneration – adverse action – discrimination – application for interlocutory relief refused. |
| Legislation: Fair Work Act 2009, ss.341(1), 344, 351 |
| Cases cited: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425 Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1;(1968) 118 CLR 618 |
| Applicant: | JOSHUA FINDLEY |
| Respondent: | MSS SECURITY PTY LTD |
| File Number: | MLG 2841 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The application for an interlocutory injunction is refused.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2841 of 2016
| JOSHUA FINDLEY |
Applicant
And
| MSS SECURITY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 January 2016, the Applicant filed a claim in this court alleging that the Respondent contravened the Fair Work Act 2009 (‘the Act’) and took adverse action against the Applicant in the form of coercion,[1] undue influence and pressure,[2] and discrimination.[3] The Applicant’s employment with the Respondent was terminated on 14 November 2016.
[1] Fair Work Act 2009 s.343(1).
[2] Fair Work Act 2009 s.344.
[3] Fair Work Act 2009 s.351.
The Applicant seeks, by an amended application filed on 7 February 2017, final relief, compensation, reinstatement and a pecuniary penalty.
The Applicant also seeks an interlocutory injunction requiring the Respondent to reinstate the Applicant to his position. As noted below, although this was the relief claimed in the application, in submissions made to the court, the Applicant is in fact seeking that he be reinstated to the position as a casual employee; that the Respondent have no obligation to give the Applicant work or pay him any wage or any other financial entitlements including leave; that the Respondent not terminate the Applicant’s employment without an order from an appropriate court; and that Mr Findley has the right to assume his position as a bargaining representative and employee in any matter that is before the Fair Work Commission.
The application for an interlocutory injunction was heard on 2 March 2017. The Applicant appeared in person and Mr Levin, solicitor appeared for the Respondent.
Whilst the hearing of an interlocutory injunction is not the time and place to reverse all the relevant facts in the case, I will set out the background relevant to this application.
Background
The Applicant commenced employment with the Respondent as a full-time security officer on about 1 February 2017. The Applicant was employed pursuant to a letter of appointment and standard conditions of employment both signed by the Applicant and dated 25 January 2017.
The Applicant, by affidavit sworn 7 February 2017 states that the Respondent transferred him from “the site to which I was employed (the control room at Deakin University)” and gave him “an instruction to attend Freshwater Place (in Melbourne).”
The Respondent, by an affidavit of Matthew Luddington affirmed 28 February 2017, refers to the letter of engagement in terms of contract and the standing instructions which form part of the contract and says that as a result of the provisions therein, “[t]he job that the Applicant was offered and he accepted was not site-specific (to Deakin University) and not geographically limited (to Geelong) and not limited to one set of duties (remaining in the control room).”
The Applicant contends that the events which led to the Applicant’s dismissal arose from the Applicant’s removal from his assignment at Deakin University. The evidence discloses that Deakin University made a complaint about the Applicant’s conduct, in particular that he was doing work other than as a security guard whilst on duty and required MSS to remove the Applicant from the Deakin site.
On 14 October 2016, the Respondent was contacted by Deakin University to arrange a meeting in order to show the Respondent video footage of the Applicant during the Applicant’s shifts in the control room. Deakin University indicated that the Applicant was doing things that were not work-related and the Applicant had previously been told by the University to stop.
By an email from Deakin to representatives of the Respondent dated 17 October 2016, Deakin requested that the Applicant be removed from the University site. Representatives of the Respondent sought to discuss the matter with Deakin and ask whether it would be possible for the Applicant to be given the opportunity to explain his position prior to any decision being made and that request was refused by Deakin.
The Respondent sought the Applicant’s response to the matters that had been raised and by letter dated 21 October 2016, the Applicant rejected the claims made by Deakin and suggested in strong terms that Deakin and the Respondent were colluding to have him removed from Deakin. At page 2 of his letter, the Applicant stated:
Let me be blunt. The only reason MSS are encouraging Deakin to target me is because I am going to ensure my colleagues are not being taken advantage of by either Deakin, MSS or United Voice. There is nothing I can say to change MSS’s position. MSS want to make life difficult so I give up fighting for employees. I am not going to give up no matter the pressure.”
The Applicant went on to state that if he was to consider a position in Melbourne, he would be required to be paid a further $48,079 per annum on top of his anticipated salary of $55,000 per annum to compensate for the cost of travel to Melbourne.
On 18 October 2016, Mr Luddington emailed a representative of Deakin University and asked if he would be prepared to reconsider his decision if the Applicant had an explanation for his conduct. Mr Luddington effectively asked Deakin to allow the Applicant to put his side of the story.
On 19 October 2016, Mr Luddington wrote to the Applicant asking him to provide details of the complaint and asked him to come in for a meeting the following day to view the video footage provided by the University.
On 21 October 2016, the Applicant provided a written response to Mr Luddington’s letter of 19 October 2016. The Applicant wrote an argumentative letter of response dated 20 October 2016, which amongst other things suggested that the Respondent had conspired with Deakin University to remove him because of his activities in relation to what he described as the Enterprise Agreement process.
In his correspondence dated 20 October 2016, the Applicant indicated that if he was to be transferred to alternative employment in Melbourne, he would have required the payment of an extra $48,079 per year in addition to his regular salary of $55,000 per year; the extra amount being to cover travel, time and expenses.
The Applicant met with Mr Luddington and another employee of the Respondent on 21 October 2016 to view the video footage and discuss Mr Findley’s letter dated 20 October 2016. The evidence discloses that the Applicant took a combative approach to the discussion and maintained his criticisms of Deakin University and the Respondent, and alleged that those two entities were conspiring against him. Mr Luddington gave evidence that he discussed redeployment opportunities with the Applicant at other clients’ sites and that the Applicant’s response was that that as he was nearly 200 kilograms he could not walk for longer than five minutes and could not stand for more than a few minutes. The Applicant was advised on that day that he would be paid in accordance with his Deakin roster until further notice and Mr Luddington would get back him on whether he was to be provided with a warning or final warning.
By correspondence dated 3 November 2016, the Respondent offered the Applicant positions at Freshwater Place in Melbourne at 333 Collins Street, Melbourne. Each of those positions required the Applicant to work on patrols. The Respondent was not prepared to pay the sum of $48,079 per year in relation to any travel expenses
The Applicant gave evidence that he told MSS on four separate occasions that he could not physically do a patrolling job as he was unable to walk for long periods.[4] In particular, on 13 November 2016, he states that he told MSS via an email that “I cannot walk for more than five minutes”, that “it should be reasonably apparent that due to my weight that I cannot do a patrolling job” and they are “forcing me into a position where the likely outcome is a heart attack”
[4] Affidavit of Joshua Donald Findley dated 7 February 2017 [10].
The Applicant states:[5]
I had serious concerns about the job role. I weigh approximately 197 kilograms and find it extremely difficult to walk for a period of less (more) than five minutes. I was and am of the belief that if I were to walk for one hour, I would have a heart attack. I have grave concerns for my health and safety and refused to accept the new role due to the impending health risks.”
[5] Affidavit of Joshua Donald Findley dated 7 February 2017 [12].
On 14 November 2016, the Respondent terminated the Applicant’s employment and gave notification of the termination by a letter dated 14 November 2016. The letter summarises the chain of events from the Respondent’s point of view in relation to the offer of three alternative positions based in Melbourne and the Applicant’s refusal to accept those positions. The company noted that that the Applicant had been paid in accordance with his roster at Deakin since 16 October 2016 and that it was not prepared to continue that arrangement, and terminated the Applicant’s employment on the basis that there was no position available for the Applicant that he was prepared to accept.
Consideration
The background is set out in brief terms and simply to provide the bare background to the claim.
The principal reason advanced by the Applicant for the grant of the orders reinstating him to employment pending the Final Hearing is in order that he may appear and make submissions in the Fair Work Commission on 14 March 2017 in relation to the Final Hearing for the approval of the MSS Security Victorian Enterprise Agreement 2016. In his outline of submissions in support of the injunction, the Applicant states at paragraph [6]:
(A) says the main reasons the Respondent contravened several general protection provisions was to eliminate his input in relation to two matters before the Fair Work Commission AG2016/4493 and AG2016/3814.
(a) A was a bargaining representative who opposed the approval of the proposed enterprise agreement and who filed an application to terminate the current enterprise agreement.
(b) The union, namely, United Voice, have unconditionally supported a substandard agreement and mislead employees as to the content of the agreement to induce a vote of approval.
(c) A is the only person contesting the approval of the agreement, and for this reason his employment was terminated so that he would not have the right to object to the substandard agreement.
He asserts that the reason for his dismissal was that it was within the Respondent’s knowledge that:
i)he was engaging in processes in the Fair Work Commission in relation to the current and proposed Enterprise Agreement; and
ii)he is extremely obese and cannot walk for more than five minutes.
The Applicant sought orders to be made by the court in respect of his application that:
a)the Respondent reemploy the Applicant as a casual;
i)The Respondent has no obligation to give the Applicant work or pay him any wage or any other financial entitlements, including leave.
ii)The Respondent is not to terminate Mr Findley’s employment without an order from an appropriate court.
b)Mr Findley has the right to resume his position as a bargaining representative employee on any matter that is before the Fair Work Commission.
c)This interim injunction and the effects thereof should have no effect on the substantive proceedings before this court.
Mr Findley also requested that the court issue a writ of mandamus and certiorari “to ensure the FWC does not let the contravention have its intended effect of excluding Mr Findley in the approval of the MSS Security Victorian Enterprise Agreement 2016.”
In the course of the Hearing of this application, I asked the Applicant whether the order that he would prefer is one whereby the court ordered his reinstatement to employment for one day, being 14 March 2017, and that the reinstatement order cease to have effect at the conclusion of that day or for the period when he wishes to make submissions to the Fair Work Commission. The Applicant agreed that that was his preferred position. The Applicant’s position as stated in the submissions that he made to the court and the orders that he is seeking is not for him to return to work or to receive a wage but to appear before the Fair Work Commission as a bargaining representative on behalf of unnamed employees.
The general principles governing the grant ofinterlocutory injunctionsare well settled. The Court must be satisfied that there is both a serious question to be tried in the principal proceeding, and that the balance of convenience favours of the grant of an injunction: see Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; (1968) 118 CLR 618; American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425.
The High Court stressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ("ABC") that an interlocutory injunctionis granted in aid of some legal or equitable right to final relief: see Gleeson CJ at 217 [11]-[12] and 218 [16]; Gaudron J at 232 [60]; and Gummow and Hayne JJ at 240-241 [88]-[91] and 248 [105]. Gummow and Hayne JJ said that the basic proposition where interlocutory injunctive relief is sought is that it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature (at 241 [91]).
In my view, it is not appropriate to grant the interlocutory relief sought by the Applicant. The Applicant is not seeking reinstatement to a position or to do work but is simply seeking reinstatement to a status of being employed for the purposes of making submissions in proceedings in the Fair Work Commission in relation to the approval of an Enterprise Agreement.
The purpose of an interlocutory injunction is to restore the parties to the status quo pending final hearing. The status quo prior to the termination of employment was that the Applicant was being paid but was not working in any role and it was asserted there was no position then available to him which he would accept. He now seeks to be reinstated without duties or pay. That status seems inimical to the status of employment. As Lander J. noted in ACE Insurance Limited v Trifunovski [2013] FCAFC 3 at [5]-[6]:
[5] A contract of service always requires the employee to provide the employee’s labour in exchange for the employer’s payment.
[6] A contract of service has a number of terms that are implied or imposed by law; minimum payments or wage; the deduction of income tax; holidays both public and annual; long service leave; and, more recently, payment by the employer of superannuation contributions for the benefit of the employee.
The Applicant has been candid in stating both in written and oral submissions that the main purpose for this interlocutory application is not so the Applicant can be employed and perform duties, but so he can maintain his status as an employed person and appear in the Fair Work Commission. That purpose is effectively beyond the scope of the relief that he will be able to obtain in the proceeding at Final Hearing. In that sense, the relief he is seeking is not a legal or equitable right which may be obtained in final relief.
Further I note in relation to the Applicant’s concerns in relation to making submissions before the Fair Work Commission, on 19 December 2016, Commissioner Cribb, who is the Commission member dealing with the application, made an order in the following terms:
Following the decision today that the Commission, pursuant to section 590 of the Fair Work Act 2009, wishes to inform itself in relation to the application for approval of an agreement by MSS Security, the Commission makes the following order in relation to Mr Findley’s contribution in this regard.
The Commission orders that:
(1) No further written submissions be provided by Mr Findley on any matter in relation to this section 185 application by MSS Security.
(2) During the hearing on 14 March 2017, Mr Findley is permitted to cross-examine any witnesses but only in relation to the pre-approval process.
(3) During the hearing on 14 March 2017, Mr Findley is permitted to make an oral closing submission in relation to the witness evidence regarding the pre-approval process only.
The Commission issued reasons on 23 January 2017, which are to be read with the orders made on 19 December 2016.
By an email dated 14 November 2016, Mr Findley made Commissioner Cribb aware that his employment with MSS had been terminated on 14 November 2016. The concluding paragraphs of the letter to Commissioner Cribb state:
Commissioner, what MSS are trying to do simply cannot be allowed. If the FWC were to stop me making submissions on a substandard Agreement where the Union is on board, it would create serious industrial problems. Companies would simply fire anyone who speaks up, as the cost of a dismissal related compensation order is insignificant compared to having to pay Award minimums.
In summary, my general protections application will be lodged within 21 days asking for reinstatement as one of the remedies. I will be covered by the EA pursuant to s. 176(1). I would like your permission to continue fighting for the wages and conditions of myself and my colleagues.
On 15 November 2016, Commissioner Cribb wrote to the solicitors for the Respondent and the Industrial Officer of United Voice, who were appearing in the Commission and the Applicant. The letter states:
Dear Mr Levine, Mr Kenchington-Evans and Mr Findley, As you are aware in the mail below, Mr Findley advised the Commission that his employment was terminated by MSS Security on 14 November 2016.
As a decision has not been issued in relation Mr Findley’s application for an order for the production of documents, this raises the question of whether, in these circumstances the Commission has jurisdiction to determine Mr Findley’s application. Written submissions in relation to the question of the Commission’s jurisdiction are to be provided to the Commission and to each other by close of business on Monday, 21 November 2016.
In response to that invitation, Mr Levin on behalf of MSS Security stated that MSS Security did not make any submissions on the issue. A similar response was provided by the Industrial Officer from United Voice. Having received no submissions, the Fair Work Commission made the orders of 19 December 2016 giving Mr Findley permission to appear on 14 March 2017, cross-examine witnesses on a limited basis and to make oral submissions on a limited basis. These orders were made after the parties were asked for submissions in relation to the jurisdiction of the Commission to receive those submissions and those orders have not been the subject of any challenge by the Respondent or United Voice.
It is not a matter for the Court as part of this application to determine whether or not the Fair Work Commission has correctly assumed that it has jurisdiction to make the orders of 19 December 2016. As matters presently stand, the Applicant has the right to participate in the proceeding in the Commission on 14 March 2017 subject to the terms of the order of the Commission dated 19 December 2016.
For these reasons, the application for an interlocutory injunction will be refused. I will reserve the question of costs to the Final Hearing although I note that s.570 of the Act applies to this proceeding.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 14 March 2017
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