Guthrie v Visa Global Logistics Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479

File number(s): PEG 101 of 2020
Judgment of: JUDGE LUCEV
Date of judgment: 23 March 2021
Catchwords:

 INDUSTRIAL LAW – alleged contravention of workplace right – alleged adverse action – dismissal from employment – whether complaint or inquiry - alleged underpayment of wages

INDUSTRIAL LAW – reinstatement – application for interim injunction seeking interim reinstatement in employment – where significant delay in applying for interim reinstatement

PRACTICE AND PROCEDURE – injunction – seeking interim reinstatement in employment – principles for grant of interim injunction – where interim relief not part of final relief sought - whether serious question to be tried – whether complaint or inquiry – balance of convenience –where significant delay in applying for interim reinstatement – whether damages an adequate remedy

PRACTICE AND PROCEDURE –whether power to grant interim injunction for interim reinstatement in employment under s 545 of the Fair Work Act 2009 (Cth) or s 15(a) of the Federal Circuit Court of Australia Act 1999 (Cth)

Legislation:

Corporations Act 2001 (Cth) s 1317AA

Fair Work Act 2009 (Cth) ss 50, 65, 340, 341, 361, 545, 570

Federal Circuit Court of Australia Act 1999 (Cth) ss 8, 15

Federal Circuit Court Rules 2001 (Cth) r 21.02

Federal Court of Australia Act 1976 (Cth) s 23

Cases cited:

 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; (1981) 33 ALR 578; (1981) 55 ALJR 107

Alam v National Australia Bank Limited [2019] FCCA 3740

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199; (2001) 76 ALJR 1; (2001) 185 ALR 1; (2001) 54 IPR 161; [2001] Aust Torts Reports 81-627

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157; (2018) 92 ALJR 219; (2018) 273 IR 211; (2018) 351 ALR 190; (2018) 70 AILR 102-917

Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985

Australian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627; (2000) 100 IR 383; (2000) 48 AILR 4-299

Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v O-I Operations (Australia) Pty Ltd [2019] FCA 1272

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Unionv Visy Packaging Pty Ltd (No 2) [2011] FCA 953; (2011) 213 IR 48

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126; (2012) 64 AILR 101-753

Boyd v Glenvill Pty Ltd [2021] FCCA 265

Bradto v State of Victoria [2006] VCSA 89; (2006) 15 VR 65;…

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Details
Case
[2021] FCCA 479
Decision Date

CaseChat Overview and Summary

In this matter before the Federal Circuit Court of Australia, Mr. Guthrie sought an interim injunction against his former employer, Visa Global Logistics Pty Ltd (VGL), to prevent or remedy the effects of his dismissal. The dispute arose from VGL's decision to dismiss Mr. Guthrie on 9 December 2019 for alleged contraventions of the company's code of conduct and a "Three Strike Policy," which Mr. Guthrie contended was a response to his exercise of workplace rights.

The court was required to determine whether there was a serious question to be tried regarding Mr. Guthrie's claim that his dismissal was motivated, in whole or in part, by a prohibited reason under the Fair Work Act 2009 (Cth) (FW Act). Specifically, the court needed to consider whether Mr. Guthrie's complaints and inquiries concerning flexible working arrangements, and his application to the Fair Work Commission (FWC), constituted the exercise of a workplace right under section 341(1)(c)(ii) of the FW Act, and whether these actions were a reason for his dismissal. The court also had to consider the balance of convenience in granting an interim injunction.

Lucev J noted that the legal question of what constitutes a complaint or inquiry for the purposes of section 341(1)(c)(ii) of the FW Act was not settled and that there were divergent lines of authority. However, the court found that there was a serious question to be tried, particularly given the lack of contemporaneous evidence supporting VGL's stated reasons for dismissal and the evidence suggesting a link between Mr. Guthrie's requests for flexible working arrangements, his engagement with the FWC, and the dismissal decision. The court was satisfied that Mr. Guthrie had established a serious question to be tried as to whether his dismissal was for a prohibited reason.

The court ordered that Annexure GH-1 to the First Harris Affidavit be struck out by agreement between the parties. While the court did not make final orders regarding the interim injunction in the provided text, it concluded that Mr. Guthrie had satisfied the threshold of establishing a serious question to be tried concerning a prohibited reason for his dismissal, which is a prerequisite for granting interlocutory relief.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Although objections to affidavits were filed, the Court considered, for the purposes of the Application in a Case, that it was unnecessary to rule on the objections, and, to the extent that it is necessary to consider them at all, that the objections will go only to the weight of the evidence. There is one exception to that, there being an agreement between Mr Guthrie and VGL on the hearing of the Application in a Case, that Annexure GH-1 to the affidavit of Garth Harris affirmed 27 October 2020 (“First Harris Affidavit”) be struck out. The Court will therefore order that Annexure GH-1 of the First Harris Affidavit be struck out. BACKGROUND The following background facts are uncontroversial:(a)VGL is a freight and forwarding, and customs brokering company with offices in all States of Australia; (b)Mr Guthrie commenced employment with VGL on 10 June 2014 in New South Wales, and was initially employed as a casual Day Shift Heavy Combination Driver (“Day Shift Driver”);(c)on 29 January 2015 Mr Guthrie commenced as a permanent Day Shift Driver;(d)Mr Guthrie subsequently requested to work as an Afternoon Shift Driver, a move approved by VGL, resulting in Mr Guthrie commencing as an Afternoon Shift Driver on 17 August 2017;(e)in November 2018 Mr Guthrie advised VGL that he would be relocating to Western Australia (“WA”) for family reasons;(f)Mr Guthrie moved to WA in January 2019 and began working as a Day Shift Driver; (g)Mr Guthrie then requested to work an afternoon or night shift pattern to enable him to care for his child; and(h)on 9 December 2019 VGL made a decision to dismiss Mr Guthrie for alleged “nonprofessional work behaviours displayed in the workplace” which were said to be in contravention of the VGL “Code of Conduct and Ethics, the Health, Safety, Environment and Quality Administrative ‘Three Strike Policy’” (“Dismissal Decision”). LAW – INTERIM INJUNCTION UNDER THE FW ACT FW Act provisions Section 545(1) and (2) of the FW Act provides as follows: (1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person.FCCA Act provisions Section 15(a) of the FCCA Act provides as follows: The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to: (a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; This Court is also a court of law and equity: FCCA Act, s 8(3).Injunctions under s 545 of the FW Act

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There are a number of matters which suggest that there may be a link between the reason for the Dismissal Decision and the exercise of a workplace right by Mr Guthrie, namely the making of a complaint or inquiry concerning flexible working arrangements on and from 10 June 2019 and the making of the application to the FWC, those matters including:(a)that at the meeting on 1 October 2019 Mr Punter was said to be angry that Mr Guthrie intended to seek the FWC’s assistance, and that he allegedly said to Mr Guthrie that sending what Mr Punter was said to consider threatening emails would not help Mr Guthrie with a move to night shift; (b)Ms Coleman’s alleged advice to Mr Guthrie that VGL did not intend to further discuss the request for flexible working arrangements following Mr Guthrie’s application to the FWC; (c)the alleged failure of VGL following the conference before the FWC on 11 November 2019 to engage in the dispute resolution process; and(d)that apart from the bare assertion of the reasons for the Dismissal Decision at [40] and [41] of the First Harris Affidavit, there is no other evidence as to the events said to give rise to the Dismissal Decision, and in particular no contemporaneous evidence of meetings or correspondence of any kind with Mr Guthrie concerning the issues alleged to have given rise to the Dismissal Decision. The absence of any such evidence, and its appearance seemingly in a vacuum, is remarkable given the volume and detailed nature of the evidence as to Mr Guthrie’s various requests for shift changes and VGL’s response thereto which predated the Dismissal Decision and the Dismissal Letter. The Court also notes that there is presently no evidence before it from Mr Punter who appears, on the basis of the Dismissal Letter, to have been the decision-maker in relation to the Dismissal Decision.Conclusions – Whether Serious Question to be Tried - Alternative Basis In the above circumstances in relation to whether there is a serious question to be tried on the alternative basis the Court is satisfied: (a)but not without some reservation, that there may be a serious question to be tried as to whether the raising of an alleged failure to pay an employee overtime pursuant to the provisions of an industrial award was part of the reason for the Dismissal Decision;(b)that from the time of Mr Guthrie’s complaint of 10 June 2019 concerning flexible shift arrangements, his subsequent complaints and inquiries, up to and including in November 2019, concerning those arrangements, were complaints or inquiries which may have been part of the reason for the Dismissal Decision and which give rise to a serious question to be tried; and(c)the FWC proceedings were proceedings which Mr Guthrie was able to initiate and participate in under a workplace law (namely, the FW Act), and which may have been part of the reason for the Dismissal Decision and which give rise to a serious question to be tried. In the circumstances, the Court finds that, for the reasons and to the extent set out above, Mr Guthrie has established that there is a serious question to be tried as to whether the Dismissal Decision was made for a prohibited reason, or for reasons which included a prohibited reason.BALANCE OF CONVENIENCEMr Guthrie’s Submissions

Ratio Decidendi

Legal Principle Established

The Cummins South Pacific-Murrihy line has been adopted in a number of cases in this Court: see, for example, Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923; (2015) 252 IR 26; (2015) 299 FLR 342 at [65]-[77] per Judge Manousaridis; Walker v Cape Australia Onshore Pty Ltd [2019] FCCA 2397 at [164] per Judge Lucev.Consideration – which line of authority to follow? The Court notes that in National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 (“NTEIU”) at [186] per Thawley J a single judge of the Federal Court observed that:As a single judge, I am bound by PIA Mortgage Services and have to follow it irrespective of my view about whether it was plainly wrong on this point. It follows that there is no point in me expressing a view about it. Nevertheless, the existence of the debate and the carefully reasoned decision of Bromberg J in Cummins, suggest that I should also consider the position on the basis that PIA Mortgage Services was wrongly decided. For the reasons which follow, the result would not have been different if Dr Anderson only had to show that the complaints were “in relation to” his employment and did not need a relevant entitlement or right to complain in the sense indicated in PIA Mortgage Services. The Court also notes that in NTEIU the Federal Court was making a final and not an interim determination of the matter. Having regard to the authorities in both the PIA Mortgage – Shea and the Cummins South Pacific – Murrihy lines set out above, it is the Court’s view that the law as to what constitutes a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act is a matter which is plainly not settled nor substantially free from doubt. It is certainly a matter in relation to which a first instance trial court, such as this Court, would benefit from a determination by a five person Full Court of the Federal Court or the High Court. In circumstances where both the PIA Mortgage – Shea line and the Cummins South Pacific – Murrihy line are plainly arguable, and where the relevant evidence is not presently tested before the Court, it is almost artificial to determine by which line of authority, or by which of several seemingly divergent judgments of the Full Court of the Federal Court, this Court is bound. What can be said, however, is that the question of whether the claimed workplace rights are or are not workplace rights is itself a serious issue to be determined at hearing. In those circumstances it is unnecessary for present purposes to finally determine by which line of authority the Court might be bound, as that will be a serious matter for the parties to address at final hearing. Genuineness etc of complaint or inquiry Another possibly contentious issue in relation to the application of the law with respect to a complaint or inquiry exercised as a workplace right under s 341(1)(c)(ii) of the FW Act is whether the complaint or inquiry must be genuine and exercised in good faith and for a proper purpose.In Shea at [29](b)-(c)] per Dodds-Streeton J, the Federal Court said that a complaint must be genuine, and made in good faith and for a proper purpose. On appeal in Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303 at [12] per Rares, Flick and Jagot JJ the Full Court of the Federal Court stated that “considerable care” should be exercised before implying such a constraint. In PIA Mortgage:(a)at [32] per Rangiah and Charlesworth JJ, who endorsed Shea, accepted that the applicant in that matter had made “genuine” complaints, thereby implying that complaints need to be genuine; (b)at [137] per Snaden J directly endorsed what was said in Shea at [29](b)-(c)] per Dodds-Streeton J.