Federal Circuit and Family Court of Australia
(DIVISION 2)
Grewal v Sydney Trains [2022] FedCFamC2G 823
File number(s): SYG 1397 of 2022 Judgment of: JUDGE STREET Date of judgment: 16 September 2022 Catchwords: FAIR WORK – urgent application for interlocutory relief – where the applicant seeks an injunction against the respondent, preventing them from terminating the applicant’s employment or making other undertakings – whether the applicant has a prima facie case – where the applicant had alternative avenues for redress – application for interlocutory relief dismissed Legislation: Fair Work Act 2009 (Cth) ss 370, 372, 545, 562, 570 Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group v Bristol Laboratories (1968) 118 CLR 618
DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 87
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 16 September 2022 Place: Sydney Counsel for the Applicant: Mr B Rauf
Ms T WongSolicitor for the Applicant: AI Strategic Lawyers Solicitor for the Respondent: Ms V Anderson, Transport for NSW ORDERS
SYG 1397 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TARANJEET SINGH GREWAL
Applicant
AND: SYDNEY TRAINS
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
16 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application for interlocutory injunctive relief is dismissed.
2.Leave is granted to the applicant to discontinue these proceedings without adverse consequence as to costs within 21 days.
3.No orders for costs are to be made in respect of this hearing pursuant to s 570 of the Fair Work Act 2009 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
introduction
This is an interlocutory application for urgent injunctive relief under s 545 of the Fair Work Act 2009 (Cth) (“the Act”), within the Court’s jurisdiction under s 562 of the Act, on the basis of alleged general protections contraventions. The proceedings were commenced today and have been listed for interlocutory hearing. Mr Rauf and Ms Wong of Counsel have appeared for the applicant and Ms Anderson has appeared for the respondent.
The general protections application is one which identified the applicant as having been a Shift Manager for the respondent since 2013, and having been in the employment of the respondent for approximately 19 years. The application identified that the applicant, the subject of a Trains Enterprise Agreement 2018, was suspended on full pay on 11 August 2022, and has not had access to his work emails since 12 August 2022.
The applicant made allegations…
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- AGLC
- Grewal v Sydney Trains [2022] FedCFamC2G 823
- Case
- [2022] FedCFamC2G 823
- Decision Date
CaseChat Overview and Summary
The Court considered the legal principles applicable to interlocutory injunctions in employment matters. It noted that the traditional requirements of mutuality and the need for a negative stipulation were no longer governing principles. Instead, the Court was guided by the wide discretionary interim injunction statutory power to prevent, stop, or remedy the effects of a contravention, as outlined in s 545(2) of the Act. The Court concluded that the applicant must demonstrate a sufficient likelihood of success on the merits and that the balance of convenience weighed in favour of granting the injunction. The Court also had to consider whether damages would be an adequate remedy.
In assessing the applicant’s case, the Court found that the conduct alleged in the dismissal could permit summary dismissal. Specifically, the content of allegation 6 involved a racist and gender-discriminatory image sent using a work mobile phone, which, if the evidence remained unchanged, was capable of justifying lawful dismissal. The Court further determined that the applicant’s case was weak, and the prospect of success appeared to be weak. Consequently, the Court was not satisfied that there was a probability of success on the merits. Given the strength of the respondent’s case and the lack of balance of convenience in favour of the applicant, the Court dismissed the application for an interlocutory injunction.
The Court ordered that the application be dismissed and that the applicant pay the respondent’s costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Court has also taken into account the decision of the learned Bromwich J in DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 87, makes apparent an approach to a contract of employment not being one that would be the subject of interlocutory injunction, required mutuality or the need for a negative stipulation, are no longer principles that govern, given the wide discretionary interim injunction statutory power, evident purpose “to prevent stop or remedy the effects of a contravention”, the language and statutory context of s 545 (2) of the Act. consideration The applicant must make out a prima facie case in the sense of sufficient likelihood of success as described above. The applicant must demonstrate albeit a related issue that the balance of convenience weighs in favour of granting the suggested injunctions and that damages are not an adequate remedy. While the Court understands the force of Mr Rauf’s contention that the issue of a prima facie case concerns the case being made by the applicant, it is at the core of that case whether or not the employer is entitled to dismiss the applicant. A key plank in assessing the strength of the applicant’s case, if the evidence remains as it currently is before this Court, is that the conduct identified in the allegations could not justify lawful dismissal. The conduct identified in the allegations numbered 6 and 7 is conduct, on its face if the evidence remains as it is, that could permit summary dismissal of the applicant. The content of allegation 6 has occurred in the context of alleged earlier conduct that might be found to amount to bullying and, of itself, involves what appears, if the evidence remains as it is, to be a racist and gender discriminatory image sent using a work mobile. All employers have an obligation to maintain a safe workplace. That obligation includes preventing employees from being exposed to bullying or inappropriate communications. The gravity of the content of allegation 6 is apparent on its face is one that is capable of, on the evidence before the Court if it remains as it is, at a prima facie level, of lawfully permitting the dismissal of the applicant. That does not mean that the applicant may not, with the presumptions that apply, ultimately have a case in relation to allegations of adverse action in relation to his workplace rights or that the applicant might success in wrongful dismissal. At this stage on the evidence as it is before this Court, such the prospect of success appears to be weak and the Court is not satisfied that there a probability of success. In these circumstances the applicant’s weak case, if the evidence remains as it is, does not justify compelling the employer to continue to employ a person in respect of whom the employer appears, at a prima facie level, to have a reasonably arguable ground to dismiss the employee. This can also be seen through the lens of balance of convenience and justice whereby the strength of the applicant’s case on the evidence before this Court is sufficiently lacking so as not to warrant continuation of the status quo.