Grewal v Sydney Trains
[2022] FedCFamC2G 823
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 in relation to the exercise of workplace rights in October 2021 and further alleged rights exercised in June 2022 and on 2 September 2022. The applicant also identified and relied upon provisions of the Sydney Trains Enterprise Agreement 2018, being in particular clauses 2, 33, and 35.
The applicant made allegations in relation to a complaint against another employee in October 2021. Reference was made to an investigation in relation to that other employee and it appears that there was then a complaint made by the other employee against the applicant. The applicant’s promotion to the position of Acting Senior Manager Service Delivery Crew Operations was not one that he was permitted to continue after a period of six weeks. The complaint made by the other employee against the applicant was dated 14 December 2021. It is apparent that there were investigation steps put in motion in relation to the complaint by the other employee against the applicant. On 5 August 2022, a letter was sent to the applicant identifying the substantiated six out of seven allegations. The Court will return to the nature of those allegations.
The applicant alleged that adverse action has been taken against him, treating him in a discriminatory manner, compared to the treatment of the complainant against the applicant, and in relation to his demotion and standing down, and in relation to the disciplinary process. There were then allegations of breaches of clauses of the Agreement.
the application
The form has been completed in a way which identifies that there is sought an interim injunction, by reason of which the process that would otherwise be undertaken if there had been a dismissal or a constructive dismissal, and having to go to the Fair Work Commission pursuant to s 370 of the Act, is not one that the applicant has to pursue and can bring the application for the interlocutory relief to this Court.
The interlocutory relief sought by the applicant is as follows:
Interim Relief
1.An order that, pursuant to s.545 of the Fair Work Act 2009 (Cth) and until the Applicant’s application is determined or further order of the Court:
(a)the respondent is restrained, whether by itself, through its employees, agents or delegates, from taking any step to terminate the employment of the applicant with the respondent; and
(b) the respondent is restrained, whether by itself, through its employees, agents or delegates, from taking any step in relation to the employment of the applicant with the respondent or disciplinary proceedings commenced against the applicant;
EVIDENCE AND SUBMISSIONS
The applicant pleads the nature of the case advanced and a key plank is that the alleged conduct the subject of alleged procedurally unfair investigation and alleged findings could not justify lawful dismissal. In support of the application, the applicant provided an affidavit with the chronology of events which are the subject of the application, asserting a need for an un-redacted document in order to respond, and the need for access to his work emails to respond to the allegations.
At this stage, on the evidence before the Court, which includes the communications that have taken place between the parties, exhibited to the affidavit, and the specificity of the allegations in the alleged findings there is no proper evidence as to why the applicant needs the un-redacted document in order to be able to meaningfully respond, given that the alleged conduct is within his knowledge, or why the applicant needs access to work emails and the like in order to be able to properly respond to allegations that are within his knowledge. The Court does finds at this preliminary level in the assessment of a prima facie case that the bare assertions to the contrary are not persuasive, as the nature of the complaints appear to have sufficient specificity so as to all appear to be capable of response without access to work emails or access to the apparent redactions.
The core of the case advanced on behalf of the applicant contends that there is a prima facie case of adverse action. It is contended, as he has not yet been dismissed, that the applicant is exposed to the significant adverse consequences of being unable to fairly respond to allegations that may give rise to his dismissal, and that he is at risk of being dismissed. Given his long period of service, it was submitted that this would have a significant impact on the applicant and that there is a prima facie case for the purpose of granting relief under s 545 of the Act.
Attention was also drawn to communications on behalf of the applicant, seeking undertakings not to dismiss the applicant, and seeking information of the kind the Court has referred to and the absence of any such undertakings being proffered by the respondent. If no interlocutory orders are granted the applicant may be dismissed from his longstanding employment.
The respondent has identified that the alleged conduct, specifically in allegation 6 and 7, is conduct of a kind that is capable of justifying the lawful dismissal of the applicant and that the interlocutory application should be dismissed. It has also been submitted on behalf of the respondent that there were other avenues which the applicant could have sought, even if not dismissed, under s 372 of the Act, by going to the Fair Work Commission under that provision.
Law
In determining whether or not there could be granted an interlocutory injunction, the Court has taken into account the relevant principles identified in the joint judgment of Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], which picks up the reasons of the learned Gummow and Hayne JJ at [65]:
The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed….
The reasons of the learned Gummow and Hayne JJ, supra. at [65] refer to the plaintiff showing a sufficient likelihood of success to justify in the circumstances the preservation of the status quo.
The Court has also taken into account the relevant principles in Beecham Group v Bristol Laboratories (1968) 118 CLR 618 at 622 as to the two main inquiries and as to how strong the probability at the trial, if the evidence remains as it is, of being entitled to relief needs to be, depending upon the rights and practical consequences that flow from the order sought. The Court has also taken into account that the issue of whether a prima facie case is made out and the balance of convenience and justice are related inquiries.
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.
The Court makes the same observations in relation to allegation 7 if the evidence at trial remains as it is before this Court. The reference to images of a sexual nature found on the work-issued mobile phone is content of a kind, which has been the subject of further description in allegation 7, which, at a prima facie level, could justify itself the lawful dismissal of an employee.
It cannot be the case that the adverse action provisions require an employer to continue to employ a person who has engaged in conduct capable at a prima facie case level of warranting their lawful summary dismissal as reflected in the alleged conduct of the kind, if the evidence remains as it is at trail, as identified in allegation 6 and 7. The Court, on the evidence before it, is not satisfied that there is a prima facie case in these circumstances about adverse action claims that support a grant of an injunction to compel continuing employment. Nor is the Court satisfied on the evidence before it, that there is a prima facie case to grant an injunction compelling the provision of further information or access, as sought by the applicant in the interlocutory orders. The applicant has failed to make out a prima facie face in the sense of a probability of success, on the evidence before this Court, to support the requested injunctive relief. The lack of strength to the applicant’s case or want of probability of success, on the evidence at this stage before the Court in asserting no grounds to dismiss as well as the balance of convenience weigh against the grant of the requested interlocutory relief.
The Court further takes into account that this is an application of a kind in respect of which there is another forum to which the applicant could have gone, which is the Fair Work Commission, under s 372 of the Act. While the Court does not regard that provision as in any way diminishing the scope of jurisdiction and interim injunctive powers that this Court can exercise under ss 562 and 545 of the Act, it is a relevant consideration in relation to the grant of an interlocutory injunction that there is, in this case, another obvious avenue to which resort could be had.
The relevance in the present case is that this alleged case is not an occurrence of recent or immediately urgent events. The subject matter of the alleged contraventions arises from events identified in the application starting in October of 2021. Investigation has been apparent and on foot for some time. The plank to the applicant’s case that the conduct could not justify lawful dismissal appears does not have a probability of success if the evidence remains as it is given the alleged conduct in allegations 6 and 7. In these circumstances, the proposition that the applicant should come to this Court, rather than exercise the avenues available to go the Fair Work Commission, is one that gives rise to pause as a matter of balance of convenience mixed with the weak case in relation to granting interlocutory relief.
In circumstances where the applicant has not shown at a prima facie in the sense of a probability of success on the evidence before this Court and has not shown on the evidence at this stage that there is no conduct by the applicant, as he has alleged in his pleading, that is capable of giving rise to his lawful dismissal the Court is of the view that the interlocutory injunction should be declined on both grounds of no prima facie case and on the interrelated balance of convenience. The Court has also taken into account the ability of the applicant to have invoked the jurisdiction of the Fair Work Commission under s 372 of the Act in respect of what is an apparent longstanding dispute.
The further ground upon which the Court refuses the interlocutory injunction is that the Court does not accept the submissions advanced that damages would not be an adequate remedy in this particular case. The Court has ample power to address the consequences of alleged wrongful dismissal or adverse action including alleged unfair dismissal process, and there are serious penalty provisions that reinforce the remedies that are available, albeit those penalties are for the public policy purpose of encouraging compliance with the Act.
The remedial provisions in respect of damages under the statute, in this case are more than capable of providing adequate recompense to the applicant if, in fact, the applicant makes out a case of adverse action and or if the applicant is found to have been wrongfully dismissed. Given the evidence at this stage and nature of the allegations that are capable of justifying lawful dismissal in the present case, the Court does not accept that this is the kind of case where it would be appropriate to compel the employer to retain the employee the subject of the allegations, in their employment, or to maintain the status quo even be it for the limited period alleged in respect of the seeking of further information. The Court does not accept on the evidence before this Court at this stage that there is a prima facie case that the further information is necessary to fairly respond to the allegations or that the related balance of convenience weighs in favour of the requested interlocutory restraint on that ground.
The applicant’s demands for undertakings do not, of themselves, identify a proper basis as to why the Court should grant the interlocutory relief sought. The Court finds if the evidence remains as it is at trial, that there is no prima facie case on either basis advanced by the applicant, and the interconnected balance of convenience and justice weighs against the grant of interlocutory relief. For these reasons, the interlocutory application should be refused.
The Court separately would refuse interlocutory relief in this case where the evidentiary plank in the applicant’s case of no entitlement to lawfully dismiss is weak on grounds of balance of convenience and justice taking into account that there are other avenues which the applicant could have pursued. In this regard, on the evidence as it is at this stage, the nature of the allegations in the present case and its longstanding nature, the availability of resort to the Fair Work Commission, the Court finds is a further discretionary reason on the limited strength of the applicant’s case and the balance of convenience as to why the application for the interlocutory injunction should be refused. The Court also separately finds that damages are an adequate remedy in this particular case. Damages, in the sense of awarding compensation for loss suffered by the applicant because of alleged contravention under s545(2) (b) of the Act can be granted for the alleged adverse action, alleged wrongful dismissal and can take into account the alleged unfair dismissal process. Given the failure to show a sufficient likelihood of success to justify preservation of the status quo for this further reason of adequacy of damages through the power to award compensation, the interlocutory application should be refused.
Accordingly, the application for interlocutory injunctive relief is dismissed.
costs AND OTHER ORDERs
There will be no order as to costs in respect of the cost of today under s 570 of the Act. These proceedings were not ones that depart from the ordinary principle identified in s 570 of the Act, that no cost order should be made and that those costs should lie with the respective parties. The Court does is not satisfied that there has been any conduct that falls within the criteria so as to engage the Court’s powers to make a different order.
The Court also takes the view that it is appropriate to give the applicant an opportunity, given that there may be events that unfold by reason of which the applicant prefers to institute fresh proceedings or take some other course. Accordingly, the Court grants the applicant leave to file a notice of discontinuance without any adverse costs consequence within 21 days.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 September 2022 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 12 October 2022
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