Guthrie v Visa Global Logistics Pty Ltd
[2021] FCCA 479
•23 March 2021
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; (2006) V Conv R 54-722
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd[2009] FCA 726; (2009) 184 IR 333
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2019] FCA 561
Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582; (2016) 266 IR 185
Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563, (2012) 64 AILR 101-641
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Dipa v Michael Hill Jeweller (Australia) Pty Ltd [2018] FCCA 233
Evans v Trilab [2014] FCCA 2464; (2014) 66 AILR 102-287
Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923; (2015) 252 IR 26; (2015) 299 FLR 342
Kodari Securities Pty Ltd v Tran [2020] FCAFC 164
Maric v Ericsson Australia Pty Ltd [2020] FCA 452
Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855
McAllan v National Prescribing Service trading as NPS Medicinewise [2017] FCCA 3151
Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709
Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622; (2006) 152 IR 75; (2006) 58 AILR 100-496
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Police Federation v Nixon [2008] FCA 467; (2008) 168 FCR 340; (2008) 173 IR 132
Renouf v RAC Finance Ltd (No 2) [2018] FCCA 182; (2018) 338 FLR 276
Russell v Institution of Engineers Australia t\as Engineers Australia [2013] FCA 1250
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238; (2011) 286 ALR 257
Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346
Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd [2014] FCA 595; (2014) 316 ALR 475; (2014) 107 IPR 1
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
Tran v Kodari Securities Pty Ltd [2019] FCA 968
TransportEdge Inc v Swan Transit Services (South) Pty Ltd [2019] FCCA 2812
Trego v Wesbeam [2019] FCA 1030
Walker v Cape Australia Onshore Pty Ltd [2019] FCCA 2397
Williment & Ors v Commissioner of Taxation [2010] FCA 808; (2010) 190 FCR 234; (2010) 79 ATR 650
Cairns BC, Australian Civil Procedure (12th ed, Lawbook Co., 2020)
Heydon JD, Leeming MJ, Turner PG, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2014)
Division: General Division Number of paragraphs: 110 Date of last submission/s: 2 March 2021 Date of hearing: 2 March 2021 Place: Perth Counsel for the Applicant: Ms M Hillier Counsel for the Respondent: Mr J Parkinson ORDERS
PEG 101 of 2020 BETWEEN: JOHN GUTHRIE
Applicant
AND: VISA GLOBAL LOGISTICS PTY LTD ACN 002 433 267
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
23 MARCH 2021
THE COURT ORDERS THAT:
1.Annexure GH-1 of the affidavit of Garth Harris affirmed 27 October 2020 be struck out.
2.The Applicant’s Application in a Case filed 24 September 2020 be dismissed, save as to costs.
3.Any application under r 21.02(1) of the Federal Circuit Court Rules 2001 (Cth) for the costs of the hearing of the Application in a Case filed 24 September 2020 must be made within seven days.
4.The matter be listed for further directions before Judge Kendall on 12 April 2021 at 11.00am.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an Application in a Case by the Applicant, John Guthrie (“Mr Guthrie”), seeking an interim injunction for interim reinstatement in employment and an expedited hearing, with no order as to costs. Mr Guthrie was dismissed by the respondent, Visa Global Logistics Pty Ltd (“VGL”), on 9 December 2019.
In the Originating Application filed 2 April 2020 Mr Guthrie claims compensation from, and the imposition of a pecuniary penalty upon, VGL on the basis that he was dismissed in contravention of s 340 of the Fair Work Act 2009 (Cth) (“FW Act”) for exercising a workplace right, and for underpayment of wages. It is pertinent to note that the Originating Application does not seek reinstatement as a remedy.
On 30 April 2020 consent orders were made for the filing of a Defence and a Reply, and for mediation before a Registrar of the Court, as well as an order that “[t]he matter can be restored on three days notice” (“April 2020 Orders”). Mediation took place on 30 June 2020 but did not resolve the matter.
Mr Guthrie notified VGL of his intention to file an application in a case for an interlocutory injunction for reinstatement on 27 August 2020. With VGL’s consent, orders were made in this Court on 31 August 2020 (“August 2020 Orders”) setting out the timeline for the determination of the Application in a Case, in the following terms:
1. The directions hearing listed for 1 September 2020 be vacated.
2. The applicant file and serve an application in a case, by no later than 29 September 2020.
3. The respondent file and serve their response in relation to the applicant’s application in a case, by no later than 27 October 2020.
4. Both parties file and serve outlines of submission by no later than 20 November 2020.
5. The matter be listed for an interlocutory hearing, at a date to be fixed by the Court, but no earlier than 20 November 2020.
6. Costs, if any, be reserved.
The Application in a Case was filed 24 September 2020 seeking the following orders:
1. Until the final hearing and determination of this application, or further order, the termination of the applicant’s employment with the respondent on 9 December 2019 is to be treated as invalid and of no force or effect, and the respondent is to reinstate the applicant in the employment he had before that date as at the date of this order.
2. The proceeding be referred to the Registry of the Court, for the purposes of an expedited hearing.
3. There be no orders as to cost of the interlocutory application.
4. Such further or other orders as the Court deems necessary.
Although the Application in a Case does not expressly say so, it is, in substance, an application under s 545(1) and (2) of the FW Act, or possibly s 15(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), for an interim injunction temporarily reinstating Mr Guthrie to his employment with VGL.
VGL filed a Response to the Application in a Case on 27 October 2020 opposing all orders sought by Mr Guthrie in the Application in a Case.
Further consent orders were made on 17 November 2020 (“November 2020 Orders”) extending the time for Mr Guthrie and VGL to serve and file submissions in relation to the Application in a Case to 24 December 2020.
MATERIAL BEFORE THE COURT
The Court has before it the relevant Court documents referred to above, and the various affidavits filed for the purposes of the Application in a Case.
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
In 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 (“ABCC”) at [23]-[25] per Kiefel CJ, and at [103]-[110] per Keane, Nettle and Gordon JJ, it was held that a court relying on the power under s 545(1) of the FW Act is limited to making orders which it considers appropriate to achieve a preventative, remedial or compensatory effect if the court is satisfied there has been a contravention or a proposed contravention of a civil penalty provision. It was observed that s 545(2) of the FW Act is not an “amplification” of the power in s 545(1) of the FW Act, but rather, “is to be read as conferring power to make orders of the kinds specified whether or not orders of those kinds would always or sometimes fall within the scope of s 545(1)”: ABCC at [24] per Keifel CJ. The plurality “observed that all of the example orders listed in s 545(2) of the FW Act are directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims of a contravention for the consequences of the contravention”: ABCC at [104] per Keane, Nettle and Gordon JJ, see also, at [25] per Kiefel CJ.
On the basis of ABCC it may be arguable that the Court’s power in s 545 of the FW Act to grant an interim injunction is not enlivened unless a contravention or apprehended contravention of a civil remedy provision under the FW Act has been found or identified. The Court notes, however, that:
(a)the High Court was not dealing with any issue arising from an application for an interim injunction seeking interim reinstatement in employment (but rather a penalty non-indemnification order);
(b)this issue was not raised with Mr Guthrie and VGL in the course of the hearing of the Application in a Case;
(c)for the purposes of determining an application for an interim injunction seeking interim reinstatement in employment, it is not necessary, absent s 545 of the FW Act, to find that there has been a contravention (but, rather, a serious question to be tried), and, generally speaking, the question of an apprehended (or future) contravention does not arise in a case such as this; and
(d)the Federal Court has relied upon s 545 of the FW Act as giving it power to grant an interim injunction granting interim relief by way of reinstatement in employment pending further or final orders.
The Federal Court has, on numerous occasions (some of which, however, predate ABCC), exercised jurisdiction on the basis that s 545 of the FW Act gives power to grant an interim injunction giving interim relief before determining whether there was an actual contravention or apprehended contravention. In Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582; (2016) 266 IR 185 (“Capcoal Management”) at [46] per Katzmann J the Federal Court observed that:
I am satisfied that the Court has jurisdiction to make interlocutory orders including reinstatement, if not under s 545 of the FW Act, then under s 23 of the Federal Court of Australia Act 1976 (Cth), which gives the Court power to make such orders (including interlocutory orders) as it thinks appropriate. Save for the question of competency, Capcoal did not submit otherwise. Like the equivalent provision under the Workplace Relations Act 1996 (Cth) (the WR Act) (s 298U) s 545 is not exhaustive of the remedies that may be afforded to a successful party, on a final or interim basis. On the position under the WR Act, see, for example, Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 and Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [27]-[29], [35]-[40]. As Greenwood J explained in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Ltd [2009] FCA 726; 184 IR 333 (Bluestar ), in order to warrant the exercise of the Court's discretion to grant interim reinstatement, the applicant must show “a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo [strictly, the status quo ante] pending the trial”.
See also, for example, Trego v Wesbeam [2019] FCA 1030 (“Trego”); Maritime Union of Australia v Sydney International Container Terminals Pty Ltd [2015] FCA 855 (where the interim injunction restrained the employer from terminating employment in circumstances where the issue arose in the context of an alleged breach of an enterprise agreement: see s 50 of the FW Act, and where the employees concerned had not yet ceased employment); and Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 at [37] per Wheelahan J.
This Court has exercised jurisdiction on the basis that s 545 of the FW Act gives power to grant an interim injunction giving interim relief before determining whether there was an actual contravention or apprehended contravention: see, for example, McAllan v National Prescribing Service trading as NPS Medicinewise [2017] FCCA 3151 (“McAllan”) at [16] per Judge Barnes, and Alam v National Australia Bank Limited [2019] FCCA 3740 (“Alam”) at [10] per Judge Altobelli where the Court held, by reference to s 545 of the FW Act, that “[t]here is no doubt that the Court may order reinstatement on an interim basis”.
An application for an interlocutory injunction, including relief by way of interim reinstatement, can also be supported by s 15(a) of the FCCA Act (which is, relevantly, in similar terms to s 23 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”)), the plain words of which allow the Court to grant such an interim injunction. In Alam at [12] per Judge Altobelli the Court held that s 15(a) of the FCCA Act “also provides this court with power to make the interlocutory orders, including interim reinstatement, pending a final hearing”: see also McAllan at [16] per Judge Barnes, and, in relation to s 23 of the FCA Act, Capcoal Management at [46] per Katzmann J. Section 568 of the FW Act provides that nothing in the FW Act limits this Court’s powers under s 15 of the FCCA Act. Thus, even if this Court does not have power to grant an interim injunction giving relief by way of interim reinstatement under s 545 of the FW Act for the reasons possibly suggested in ABCC and discussed at [15]-[17] above, it has power to do so under s 15(a) of the FCCA Act. In the absence, however, of direct High Court authority on the existence or otherwise of power to grant an interim injunction giving relief by way of interim reinstatement under s 545 of the FW Act, the Court is bound by Federal Court authority (as to which see: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] per Judge Lucev), and particularly Capcoal Management as cited at [17] above, to conclude that it does have power to grant an interim injunction giving relief by way of interim reinstatement under s 545(2)(a) of the FW Act.
The test for granting an interim injunction giving relief by way of interim reinstatement
In Capcoal Management at [8]-[9] per Katzmann J in dealing with applications for injunctions temporarily reinstating an employee the Federal Court held that the test under s 545(1) and (2) of the FW Act requires two primary inquiries as to whether:
(a)an applicant has made out a prima facie case, in the sense that if the evidence were to remain as it is, there is a probability that at the trial of the action an applicant would be entitled to the relief claimed, that is, whether there is a serious question to be tried; and
(b)the inconvenience or injury an applicant is likely to suffer if an injunction were refused outweighs or is outweighed by the injury which a respondent would suffer if the injunction were granted, that is, where does the balance of convenience lie.
The two inquiries are interrelated in the sense that the stronger the prima facie case for final relief, the less may be required to tip the balance of convenience; while the greater the preponderance of the balance of convenience, the less strong a case for final relief may be required: McAllan at [18] per Judge Barnes, citing Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457 (“O’Neill”) at [65]–[72] per Gummow and Hayne JJ; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238; (2011) 286 ALR 257 (“Samsung Electronics”) at [44]–[74] per Dowsett, Foster and Yates JJ.
The issue of whether damages are an adequate remedy falls to be determined as part of the balance of convenience. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 (“O-I Operations”) at [26] per Snaden J the Federal Court observed that:
An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia(1986) 161 CLR 148, 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd(2009) 184 IR 333, 339 (Greenwood J).
See too Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265 (“Metro Trains Melbourne”) at [41] per Snaden J.
The test expounded in Capcoal Management at [8]-[9] per Katzmann J has been followed in this Court in relation to applications for interim injunctions seeking the interim reinstatement of an employee: McAllan at [16]-[17] per Judge Barnes; Alam at [11] per Judge Altobelli.
If the injunction falls to be determined under s 15(a) of the FCCA Act then the same test applies: Samsung Electronics at [60]-[66] per Dowsett, Foster and Yates JJ; Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd [2014] FCA 595; (2014) 316 ALR 475; (2014) 107 IPR 1 at [14], [121] and [129] per Wigney J (both being judgments in relation to the test under s 23 of the FCA Act which is essentially in the same terms as s 15(a) of the FCCA Act).
Where injunctive relief sought not in respect of final relief
In 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 (“Lenah Game Meats”) at [91] per Gummow and Hayne JJ (with whom, as to the expression of principle, Gleeson CJ at [10] and Gaudron J at [58] agreed) the High Court held that where an interlocutory injunction is sought it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought, the final relief not needing to be injunctive in nature. Lenah Game Meats has been described as “… one more illustration of the proposition that a court of equity has no jurisdiction to make an injunction against a defendant against whom the plaintiff has no cause of action”: Heydon JD, Leeming MJ, Turner PG, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2014) at [21-040].
In Australian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627; (2000) 100 IR 383; (2000) 48 AILR 4-299 (“G & K O’Connor”) at [55] per Gray J the Federal Court, having reviewed the relatively few cases in which a reinstatement in employment injunction had then been granted by it, observed that:
It therefore appears that this Court has no reluctance to use the remedy of injunction as a means of reinstating, on an interlocutory basis, employees who have been dismissed in circumstances giving rise to a serious question as to whether they will be entitled to be reinstated in due course.
WHETHER A SERIOUS QUESTION TO BE TRIED
Sections 340, 341 and 361 of the FW Act
The statutory provisions relevant to the issue of whether Mr Guthrie’s employment was terminated by adverse action in contravention of a workplace right or rights, and which are therefore relevant to the issue of whether there is a serious question to be tried include ss 340, 341 and 361 of the FW Act which provide as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Who is able to make a complaint or inquiry?
In relation to the question as to whether there is a workplace right by reason of being a person who “is able to make a complaint or inquiry”: FW Act, s 341(1)(c), it is necessary to observe that there are markedly divergent views as to what is meant by that phrase, particularly as it relates to whether “in relation to his or her employment” a “person [who] is an employee” is able to make such a complaint or inquiry under s 341(1)(c)(ii) of the FW Act. That there are markedly divergent views, both in the Federal Court and in this Court is neither new nor unusual: see the judgments of the then Federal Magistrates Court and the Federal Court discussed almost seven years ago in Evans v Trilab [2014] FCCA 2464; (2014) 66 AILR 102-287 at [16]-[26] per Lucev FM. Those markedly divergent views are more recently reflected in the judgments of the Full Court of the Federal Court in:
(a)PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 (“PIA Mortgage”) at [12] per Rangiah and Charlesworth JJ and [164] per Snaden J, and Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16 (“Cigarette & Gift Warehouse”) at [28] per Greenwood, Logan and Derrington JJ, essentially adopting and expanding upon the approach in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346 (“Shea”) at [625] per Dodds-Streeton J (“PIA Mortgage-Shea line”); and
(b)Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 (“Cummins South Pacific”) at [52]-[53] per Bromberg J (Mortimer J agreeing at [209] and Anastassiou J dissenting at [214] and [291]), the majority essentially adopting and following the approach in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 (“Murrihy”) at [141]-[143] per Jessup J, with the minority adopting the PIA Mortgage-Shea line, and Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 (“Kodari Securities – Full Court”) (“Cummins South Pacific-Murrihy line”).
PIA Mortgage-Shea line
In Shea the approach to the question as to whether there is a workplace right by reason of being a person who “is able to make a complaint or inquiry”: FW Act, s 341(1)(c), was as follows:
a)the phrase “is able to make” indicates that there are some complaints or inquiries an employee is able to make and some complaints or inquiries an employee is not able to make: Shea at [29(f) and (g)] and [625] per Dodds-Streeton J; and
b)the distinguishing characteristic of a complaint or inquiry which an employee “is able to” make is a complaint or inquiry being “underpinned by an entitlement or right”: Shea at [29(f)] and [625] per Dodds-Streeton J.
In PIA Mortgage the Full Court of the Federal Court endeavoured to resolve the ambiguity presented by the use of the phrase “underpinned by an entitlement or right” to define the phrase “is able to make”, as follows:
(a)the majority considered the question in the context of a complaint only, and were of the opinion that the complaint must be “underpinned by an entitlement or right to make a complaint”: at [13] per Rangiah and Charlesworth JJ. In other words, there must be an identifiable source of a right or entitlement, some instrument or otherwise, that confers legal rights, such that there may be some cause of action or complaint procedure available before an employee is able to make a complaint in relation to their employment and can seek to invoke the protections afforded by s 341(1)(c)(ii) of the FW Act. The majority suggested various sources of rights or entitlements to make complaints or inquiries: workplace laws (e.g., FW Act), non-workplace laws (e.g., Corporations Act 2001 (Cth), s 1317AA relating to disclosure by whistleblowers), contractual terms providing a right to make complaints and the general law (e.g., general law of contract, under which suing for breach is the “ultimate form of complaint”): at [19] per Rangiah and Charlesworth JJ;
(b)the majority also considered an alternative resolution to the ambiguity: that the provision captures any complaint or inquiry made by an employee concerning an entitlement or right related to his or her employment but considered that this was not the correct approach, although it made no difference in the circumstances of the case: at [13] per Rangiah and Charlesworth JJ; and
(c)the minority did not differ from the majority as to the ultimate resolution of the matter, but discussed this issue in the context of both a complaint and an inquiry, and considered the phrase “is able to make” means that an employee’s ability to complain requires a foundation in a right or entitlement and does not depend upon the subject matter of the complaint itself – that is, a complaint or inquiry clause or provision, and thus the subject matter of a complaint or inquiry qualifies as a reason for the complaint, but it does not confer the ability to complain or inquire: at [162]-[174] per Snaden J.
In Maric v Ericsson Australia Pty Ltd [2020] FCA 452 at [44]-[59] per Steward J the approach taken by the majority in PIA Mortgage – that is, that a legal source of right or entitlement to make an inquiry confers the status of workplace right, and therefore protection, for the purposes of s 341(1)(c)(ii) of the FW Act - was discussed, and followed, in the context of an inquiry.
The PIA Mortgage-Shea line has been adopted in a number of cases in this Court: see, for example, Dipa v Michael Hill Jeweller (Australia) Pty Ltd [2018] FCCA 233 at [58] per Judge Jones; Boyd v Glenvill Pty Ltd [2021] FCCA 265 at [336] per Judge A Kelly.
Cummins South Pacific-Murrihy line
The Cummins South Pacific-Murrihy line can be summarised as follows:
(a)that s 341(1)(c)(ii) of the FW Act should be read literally;
(b)that s 341(1)(c)(ii) of the FW Act is drafted in broad terms, and that there is little doubt that the provision was intended to mean what it says;
(c)as rejecting any implication that the provision did not extend to cover a complaint or inquiry made by an employee to their employer; and
(d)as being a wholesale rejection of the contention that s 341(1)(c) of the FW Act is only to be invoked where the complaint or inquiry is underpinned by some statutory, regulatory or contractual provision for the making of a complaint or inquiry.
See Murrihy at [141]-[143] per Jessup J and Cummins South Pacific at [52]-[53] per Bromberg J (with whom Mortimer J agreed at [209]).
In Cummins South Pacific at [59] per Bromberg J it was also observed that the endorsement of the statements in Shea by the Full Court of the Federal Court in Cigarette & Gift Warehouse at [28] per Greenwood, Logan and Derrrington JJ was a “passing endorsement unassisted by a considered analysis of what s 341(1)(c)(ii) provides”. In relation to PIA Mortgage it was further observed in Cummins South Pacific at [59] per Bromberg J that:
Although I respectfully disagree with the holding of the majority in PIA, this Full Court need not decline to follow that holding because it is not necessary to do so for the disposition of the appeal… If it had been necessary to decline to follow PIA and to do so on the basis that PIA was plainly wrong as to the proper construction of s 341(1)(c)(ii), I would have respectfully held that to be the case.
In Cummins South Pacific at [214] and [291] per Anastassiou J the minority considered that the Full Court should follow PIA Mortgage and Cigarette & Gift Warehouse as those judgments had not been shown to be plainly wrong.
The Court also notes the decision of the Full Court of the Federal Court in Kodari Securities –Full Court which upheld the decision at first instance: Tran v Kodari Securities Pty Ltd [2019] FCA 968 (“Kodari Securities”). Kodari Securities was decided after Cigarette & Gift Warehouse but before PIA Mortgage. Kodari Securities –Full Court was decided after the decision in PIA Mortgage, but before the decision in Cummins South Pacific.
The Federal Court in Kodari Securities relied on Murrihy alone to support its finding that an employee, previously on an unwritten contract, who requested legal advice when entering into a written contract, had exercised a workplace right under s 341(1)(c)(ii) of the FW Act: Kodari Securities at [47] and [64]-[71] per Bromwich J. The finding cannot be supported on any reasonable understanding of the approaches taken in the PIA Mortgage-Shea line, and Shea itself was not mentioned in the judgment. As such, it is a judgment in the Cummins South Pacific-Murrihy line.
The Full Court of the Federal Court dismissed an appeal by the employer and did not take issue with the application of the law at first instance: Kodari Securities –Full Court at [59]-[60] per Katzmann, Mortimer and Jackson JJ. The Court, however, notes that:
(a)no submissions were seemingly made concerning developments in the case law since Murrihy: Kodari Securities –Full Court at [30]-[40] per Katzmann, Mortimer and Jackson JJ;
(b)the Federal Court did not directly endorse, analyse or otherwise consider developments in the case law since Murrihy;
(c)in Kodari Securities the reasoning with respect to Murrihy was by way of direct factual analogy and no consideration of the underlying reasoning or different approaches was considered; and
(d)in Cummins South Pacific at [77] per Bromberg J referred to the decision in Kodari Securities –Full Court, but not in the context of the differing lines of authority which had emerged.
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.
The Court does not need to determine the arguably unresolved question as to whether a complaint or inquiry must be genuine, and made in good faith and for a proper purpose. It suffices to observe that if it is a requirement of making a complaint or inquiry there can be no question that Mr Guthrie’s repeated and often detailed and comprehensive representations concerning the issues he raised meet the genuineness requirement.
The reverse onus
The relevance of the reverse onus in s 361(1) of the FW Act to the assessment of whether there is a serious question to be tried has been the subject of consideration by the Federal Court, and again two lines of authority appear to emerge.
First, there are authorities that suggest that, because s 361(1) of the FW Act plays a role at the final hearing, it is necessary to take into account the reverse onus in when considering whether there is a serious question to be tried, notwithstanding s 361(2) of the FW Act, and thus in:
(a)Police Federation v Nixon [2008] FCA 467; (2008) 168 FCR 340; (2008) 173 IR 132 (“Nixon”) at [69] per Ryan J, where of a statutory antecedent of s 361(2) of the FW Act it was said that it precludes a finding, by recourse solely to the presumption, that a respondent’s conduct was for a prohibited reason or reasons including a prohibited reason, but that it does not preclude regard being had, when assessing whether there is a serious question to be tried, to the availability of the presumption in the final determination of an application or to the ultimate availability of the presumption when assessing the relative strengths of the parties cases as part of the exercise of the general discretion to grant or withhold interlocutory relief;
(b)Automotive, Food, Metals, Engineering, Printing And Kindred Industries Unionv Visy Packaging Pty Ltd (No 2) [2011] FCA 953; (2011) 213 IR 48, adopting the approach set out in Nixon at [69] per Ryan J as “the correct one”: at [19] per Murphy J;
(c)Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563; (2012) 64 AILR 101-641 at [63] per Greenwood J, citing Nixon and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd[2009] FCA 726; (2009) 184 IR 333 at [22]-[25] per Greenwood J (where at [25] the Federal Court agreed with the observations in Nixon at [69] per Ryan J);
(d)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 at [45] per Bromberg J, citing, amongst other cases, Nixon at [69] per Ryan J;
(e)Capcoal Management at [77]-[78] per Katzmann J, citing, amongst other cases, the cases at (a) to (d) above; and
(f)Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2019] FCA 561 (“Fredon”) at [46] per Robertson J, adopting what was said in Nixon at [69] per Ryan J.
Secondly, there are authorities which suggest that on a plain reading of s 361(2) of the FW Act it is clear that Parliament intended the reverse onus to play no role in the determination of applications for interim injunctions, thus in:
(a)Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750 (“Chemring”) at [48] per Snaden J the Federal Court held that s 361(2) of the FW Act precludes regard being had to the existence of the reserve onus in s 361(1) of the FW Act, and the same rationale was adopted by the Federal Court in O-I Operations at [52] per Snaden J and Metro Trains Melbourne at [74] per Snaden J; and
(b)Trego at [63] per Mortimer J the Federal Court referred to Fredon and Chemring, indicated that it had “not taken the reverse onus into account in any way …. giving full effect to s 361(2)”, but was satisfied that there was in any event a serious question to be tried: Trego at [64] per Mortimer J.
The Court does not need to determine the arguably unresolved question as to whether the reverse onus has a role to play in the determination of applications for interim injunctions. For reasons which appear below at [60]-[88] the evidence is such that even if the availability of the presumption at hearing is ignored the Court has been persuaded that there is a serious question to be tried, at least to the extent set out at [89] below.
The alleged workplace rights
Mr Guthrie alleges that the reason for his dismissal was because he exercised workplace rights pursuant to ss 341(1)(b) and 342(1)(c)(ii) of the FW Act between the time of his relocation to Perth in November 2018 and the Dismissal Decision on 9 December 2019.
The workplace rights purportedly exercised by Mr Guthrie pursuant to s 341(1)(c)(ii) of the FW Act are summarised in Mr Guthrie’s Form 2 as follows:
(a)on or around November 2018, Mr Guthrie notified VGL that he was moving to WA and made an inquiry about his relocation;
(b)on or around 12 and 17 January, 20 April, 10 June, 26 August and 18 November 2019, Mr Guthrie made inquiries regarding afternoon or night shift patterns;
(c)on or around 4 and 24 May 2019 Mr Guthrie expressed concern about changes to shift start times, impact on allowances, and minimum notice periods;
(d)on or around 10 June 2019 Mr Guthrie expressed concerns about a new employee being assigned to night shift when Mr Guthrie had been given prior assurances that he had priority for such an opportunity;
(e)on or around 19 August 2019 following a meeting with members of the management team where a hybrid position was proposed, Mr Guthrie made inquiries about the proposed hybrid position;
(f)on or around 18 October and 18 and 19 November 2019 Mr Guthrie expressed concern about the payment of casual loadings;
(g)on or around 18 and 19 November 2019 Mr Guthrie inquired about VGL’s commitment to engaging in the dispute resolution process under the relevant industrial award;
(h)on or around 18 November 2019 Mr Guthrie expressed concern about pay slips not indicating a base rate of pay; and
(i)on or around 18 November 2019, Mr Guthrie expressed concern about his pay rate between about August 2017 and February 2018.
Mr Guthrie also claims that he was dismissed for exercising a workplace right pursuant to s 341(1)(b) of the FW Act, namely, that on or around 14 September, 6 October, 11 October and 11 November 2019, Mr Guthrie indicated his intention regarding, initiating and participating in a Fair Work Commission (“FWC”) conference.
Mr Guthrie’s Submissions
Mr Guthrie’s submissions in relation to whether there is a serious question to be tried are as follows:
(a)VGL has failed at any time, either prior to dismissal, at dismissal or since, to present Mr Guthrie with a legitimate basis for his dismissal;
(b)at no time prior to the dismissal has VGL brought into question Mr Guthrie’s performance or conduct;
(c)Mr Guthrie has raised significant concerns in the workplace that have not at any time been fully addressed by VGL; and
(d)these concerns raised the exercising of workplace rights pursuant to ss 341(1)(b) and (c)(ii) of the FW Act that were in the mind of the relevant decision-maker at the time the Dismissal Decision was made.
VGL’s Submissions
VGL’s submissions in relation to whether there is a serious question to be tried are as follows:
(a)VGL accepts that the evidence is untested but that it does not suggest any contravention of a workplace right as asserted by the Applicant;
(b)the matter does not deal with any novel questions of law or fact;
(c)the following events do not amount to the exercise of a workplace right:
(i)Mr Guthrie requested and was granted the opportunity to relocate from NSW to WA with the Company;
(ii)Mr Guthrie was not considered for a night shift position because he did not have the requisite dangerous goods licence (“DGL”); and
(iii)Mr Guthrie raised queries relating to the start and finish times in the Road Transport and Distribution Award during a toolbox meeting at which he asserts he was yelled at by a management employee of VGL;
(iv)Mr Guthrie was dismissed for breaches of the Code of Conduct and the Policy, and in so doing VGL did not dismiss Mr Guthrie for exercising a workplace right; and
(d)alternatively, even if Mr Guthrie were to establish that a contravention had occurred he has not sought reinstatement as final relief and there is no prospect that this would be the result if the Application in a Case was successful: citing McAllan, and that it cannot be said that there is a serious case to be tried where there is difference between the interim and final relief sought.
Consideration – whether serious question to be tried
For the purposes of determining whether there is a serious question to be tried Mr Guthrie is not required to show that it is more probable than not that he will succeed at final hearing, it suffices to show only an adequate likelihood of success: O’Neill at [65] per Gummow and Hayne JJ; Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622; (2006) 152 IR 75; (2006) 58 AILR 100-496 (“Paras”) at [26] per Young J; TransportEdge Inc v Swan Transit Services (South) Pty Ltd [2019] FCCA 2812 at [50] per Judge Lucev. The threshold is not an onerous one: Paras at [26] per Young J.
Whether Serious question to be Tried - Reinstatement
The substantive remedies sought by Mr Guthrie in the Originating Application are compensation for the alleged dismissal in contravention of a workplace right, payment for the underpayment of various entitlements, and the imposition of pecuniary penalties in respect of the alleged contravention and underpayment. Reinstatement is not a substantive remedy sought by Mr Guthrie. The Court understands that a second application in a case has been filed seeking reinstatement as a remedy, but that was not the position when the Application in a Case currently before the Court was argued, and whether it becomes so is dependent upon the outcome of the second application in a case which is not yet listed for a directions hearing. There was no application by Mr Guthrie to adjourn the current Application in a Case pending the making of the second application in a case, or the determination thereof. Compensation is therefore the primary remedy sought in respect of the alleged dismissal in contravention of workplace right, and reinstatement is not a final remedy sought for the purposes of this Application in a Case.
There is no claim by Mr Guthrie for reinstatement as final relief in these proceedings. The question therefore arises as to whether there is as serious question to be tried in circumstances where the interim relief sought by way of reinstatement is not the final relief sought.
If there can be no injunctive relief where there is no cause of action giving rise to a legal right to relief at hearing of the kind claimed as injunctive relief, and therefore no serious question to be tried: Lenah Game Meats at [15]-[16] per Gleeson CJ and [91] per Gummow and Hayne JJ, there also can be no serious question to be tried where the injunctive relief claimed is not claimed as final relief because “the foundation of the claim for interlocutory relief disappears”: Lenah Game Meats at [15] per Gleeson CJ. Reinstatement as form of interim injunctive relief can only be available, and can only give rise to a serious question to be tried where that serious question is “whether they [the employee] will be entitled to be reinstated in due course”: “G & K O’Connor” at [55] per Gray J, that is, reinstated after a final hearing.
In circumstances where reinstatement is not the final relief sought by Mr Guthrie the Court concludes that there is no serious question to be tried as to reinstatement, and no basis (or foundation) for the interim injunction sought in that regard.
Whether Serious Question to be Tried –Alternative Basis
Lest the Court’s conclusion that there is no serious question to be tried because reinstatement is not sought as a final remedy be wrong, the Court will consider whether there is a serious question on the alternative basis of the final relief otherwise presently sought.
Relocation
The evidence establishes that in November 2018 Mr Guthrie decided to relocate from NSW to WA and requested that VGL relocate him to WA, and specifically that he be allocated an afternoon shift in Perth: First Guthrie Affidavit at [8]. VGL agreed that Mr Guthrie would have “continuing full time employment”, but as a “Day Shift Driver” in WA with effect from 31 January 2019: Affidavit of John Guthrie, affirmed 24 September 2020 (“First Guthrie Affidavit”) at [5] and Annexure JG-2. There is no dispute that Mr Guthrie accepted the continuing employment in Perth offered by VGL.
The relocation request was not a complaint. If it is an inquiry in relation to employment, it is only so on a generous view of the Cummins South Pacific-Murrihy line. It is not apparent that Mr Guthrie, having decided to relocate to WA, had any right to ongoing employment with VGL, let alone any right to a particular shift of his choosing. Moreover, the relocation having been requested, it was accommodated by VGL (seemingly without demur, save as to the request to work afternoon shift): Affidavit of Garth Harris, affirmed 27 October 2020 (“First Harris Affidavit”). In those circumstances it is difficult to see what, if any, connection there is between the relocation issue and the Dismissal Decision some eleven months later.
It is not apparent that this issue, standing alone, gives rise to a serious question to be tried.
Inquiries regarding afternoon or night shift patterns and other flexible working arrangements
Mr Guthrie says that on or around 12 and 17 January, 20 April, 10 June, 26 August and 18 November 2019, he made inquiries regarding afternoon or night shift patterns, and that as a consequence of these inquiries and associated matters, VGL ultimately made the Dismissal Decision. Although Mr Guthrie has separated these matters into separate alleged workplace rights: see [50] above, in order to determine whether there is a serious question to be tried it is necessary to consider the untested evidence of these matters more compendiously.
On 12 and 17 January 2019, that is prior to commencing his continuing employment in Perth with VGL on 31 January 2019, Mr Guthrie says he “discussed” with, and then emailed, Mr Kesby, the WA Transport Supervisor for VGL asking “to be moved to a night shift should a position become available”: First Guthrie Affidavit at [9]. Mr Guthrie says that Mr Kesby told him that “as soon as position became available on shift … [he] would be given preference because of … [his] family responsibilities”: First Guthrie Affidavit at [9]. Mr Guthrie says that he spoke to Mr Kesby again on 20 April 2019 concerning transferring Mr Guthrie to night shift and was “assured … [that he] would be prioritised for any position that became available”: First Guthrie Affidavit at [10].
The night shift requests in January and April 2019 were not complaints. Nor were they inquiries in relation to employment, even on the Cummins South Pacific-Murrihy line, but rather requests to work a particular roster or shift or shift pattern.
On 10 June 2019 Mr Guthrie says a new employee commenced with VGL, and, in Mr Guthrie’s words “was given a night shift position over me”: First Guthrie Affidavit at [10]. Mr Guthrie says the night shift position was never advertised and the new employee was a friend of Mr Kesby’s: First Guthrie Affidavit at [10].
Mr Guthrie says that he spoke to Mr Kesby on 10 June 2019 and that Mr Kesby told him that he did not get the night shift position because he did not have a DGL, but that no-one had ever told him that a DGL was a requirement for night shift work, and that it was not a requirement for night shift work in VGL’s Sydney depot: First Guthrie Affidavit at [11]. VGL maintain that Mr Guthrie “was not considered” for this position because he did not have a DGL: First Harris Affidavit at [22].
Mr Guthrie then sets out what he understands was the “real reason”: First Guthrie Affidavit at [12], that he was overlooked for the night shift position. In the First Guthrie Affidavit at [11]-[15] Mr Guthrie says as follows:
11.I spoke to Mr Kesby on 10 June 2019 about being overlooked for the night shift position, and was told that the new employee had a dangerous goods licence and that is why he got the night shift position. No one had ever told me before that a dangerous goods licence was required in order to be considered for a position on the night shift and it had certainly never been a requirement whilst I was working on the night shift at the Sydney depot.
12.The real reason I was overlooked for the night shift position was that, in early May 2019, I had queried how Visa were applying some provisions in the Road Transport and Distribution Award 2010 (the Award) with respect to start and finish times and how this was impacting payment of overtime. I understood that Visa should have been paying overtime payments when drivers were asked to start earlier than their scheduled start times with just a few hours' notice. Overtime was always paid under this scenario whilst working at the Sydney depot but unfortunately, this wasn't the case at the Perth depot. I verily believe that I was overlooked for the night shift position because of the queries I raised about the Award.
13.I spoke to Tom MuSung, WA branch manager (Mr MuSung) about this on 4 May 2019 just after Mr Kesby had gone on 3 weeks' leave. Tom advised that he would contact the HR department in Sydney for some clarification, and get back to me.
14.Mr Kesby returned from leave on 22 May 2019, and arranged a toolbox meeting for 24 May 2019 for all the drivers to attend. At this meeting my colleague, Danny Jeater, raised the issue of the constantly changing daily start times with Mr Kesby. In response, Mr Kesby said that it wasn't up for discussion before turning to me and shouting words to the effect ' ... and I hear that you've been sending out letters'. I understood that the letters he was referring to was a copy of various clauses within the Award that I had provided to Mr Mu Sung in early May 2019.
15.On or around 24 May 2020, I emailed Mr Kesby letting him know I wasn't happy about being shouted down during the tool box meeting on 22 May 2020, and explaining the concern I had about changes to start and finish times and how this was impacting payment of overtime. Attached to this document and marked 'JG-5' is a copy of this email.
If, as Mr Guthrie positively asserts, the real reason that he was overlooked for the night shift position was his complaint in May 2019 concerning non-payment of overtime where shifts commenced before the rostered start, it follows that the prior raising of a completely separate issue, namely a request made in January and April 2019 to work night shifts, cannot be the reason he was overlooked for the night shift position. Alternatively, even on Mr Guthrie’s own evidence, it may be that Mr Kesby simply chose the new employee because he was Mr Kesby’s friend (albeit that that is presently denied by VGL: First Harris Affidavit at [22].
In all of the above circumstances:
(a)it is not apparent that the January and April 2019 requests to work afternoon or night shifts were workplace rights, and the better view is that they probably were not, in which case they cannot be part of the operative reason for the Dismissal Decision made some months later;
(b)in any event, it is difficult to see what, if any, connection there is between the January and April 2019 requests to work afternoon or night shifts and the Dismissal Decision some eleven and seven months after the requests; and
(c)it follows that the January and April 2019 requests to work afternoon or night shifts do not give rise to a serious question to be tried.
In relation to the toolbox meeting on 24 May 2019 VGL:
(a)deny that Mr Kesby shouted down Mr Guthrie or said anything about Mr Guthrie sending out letters: First Harris Affidavit at [26]; and
(b)say that following the toolbox meeting Mr Guthrie met one-on-one with Mr Mu Sung, who clarified the application of the provisions of the relevant industrial award as to start and finish times, and that Mr Guthrie requested a fixed start and finish time and evinced an unwillingness to be flexible with VGL’s business requirements: First Harris Affidavit at [27]; and
(c)deny overlooking Mr Guthrie for a night shift position because he raised queries as to the application of the relevant industrial award: First Harris Affidavit at [28].
The raising, in the manner described by Mr Guthrie: see [68] above quoting First Guthrie Affidavit at [15], of an alleged failure to pay an employee overtime pursuant to the provisions of an industrial award is the making of a complaint or inquiry by an employee for the purposes of s 341(1)(c)(ii) of the FW Act.
The Court notes that affidavits for Mr Kesby and Mr Mu Sung have not been filed in these proceedings. In those circumstances the best presently evidence available on the issue of what happened at the toolbox meeting on 24 May 2019 is the evidence of Mr Guthrie. On the basis of Mr Guthrie’s evidence as to the raising of an alleged failure to pay an employee overtime pursuant to the provisions of an industrial award and how it was dealt with, particularly by Mr Kesby, it may be that this issue was one which formed part of VGL’s decision-making process in relation to the Dismissal Decision more than six months later, although it is difficult to make any assessment (even on the preliminary basis necessary for this interim injunction application) when there is no evidence on behalf of VGL from a person claiming to be the decision-maker. In the circumstances the Court is satisfied, 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.
Flexible working arrangements and application to the FWC
Following the employment of the new employee on night shift on 10 June 2019 Mr Guthrie spoke to Mr Kesby and subsequently sent him an email (“10 June 2019 Email”) “making it clear I was seeking a night shift position because of my family responsibilities and noting that I was disappointed about being overlooked even though I had been assured I would be next in line when a night shift position came up”: First Guthrie Affidavit at [16] and Annexure JG-6. In the 10 June 2019 Email Mr Guthrie made a further “request”, as follows:
… I therefore now make a fresh request in accordance with section 65 of the Fairwork Act for a switch to the afternoon/night shift in order to help with looking after my young boy in the mornings. If this will still not be possible, please could you provide me with a written response within 21 days detailing the reason for the refusal.
Section 65 of the FW Act provides that an employee who is a parent of a child of school age or younger may make a written request to the employer to change their working arrangements, and that the employer must give the employee a written response within 21 days stating whether the request is granted or refused, and if refused including details of the reasons for refusal.
On 18 June 2019 Mr Guthrie attended a meeting with Mr Kesby, Mr Mu Sung, VGL’s WA Branch Manager, and Mr Pilgrim, VGL’s Queensland and WA Transport Manager at which VGL:
(a)apologised for overlooking Mr Guthrie for the night shift position; and
(b)proposed to create a new hybrid position with a 3.00pm start for Mr Guthrie: First Guthrie Affidavit at [17].
On 19 June 2019 Mr Guthrie received an email from Mr Mu Sung in which Mr Mu Sung declined Mr Guthrie’s request for a transfer to an afternoon or night shift: First Harris Affidavit at [31], and said that Mr Guthrie would be:
(a)next in line for a night shift position; and
(b)enrolled in a DGL course: First Guthrie Affidavit at [18].
Mr Guthrie says that the hybrid position did not eventuate, and that on 19 August 2019 he sent an email to Mr Pilgrim following up on the hybrid position and was advised that Mr Kesby was no longer employed by VGL, and subsequently on 22 August 2019 Mr Pilgrim advised that VGL was not looking to increase night shift numbers at that time: First Guthrie Affidavit at [19] and Annexure JG-8. VGL says that “the operational demand for afternoon or night shift drivers did not increase”: First Harris Affidavit at [33]. On 13 September 2019 Mr Pilgrim again advised that there was not presently a night shift position available: First Guthrie Affidavit at [20] and Annexure JG-9.
Mr Guthrie subsequently emailed Mr Punter and a Ms Coleman (VGL’s National Human Resources Manager) on 14 September 2019 and advised them that he intended to seek the assistance of the FWC to resolve his request for flexible working arrangements, and he then met with Messrs Punter and Harris on 1 October 2019, and Mr Guthrie says that:
(a)Mr Harris told him that he would look into the availability of a night shift position; and
(b)Mr Punter “was angry that I intended to seek the assistance of the … [FWC], and said words to the effect of ‘sending threatening emails like that won’t help you with a move to night shift’”: First Guthrie Affidavit at [21] and Annexure JG-10.
Mr Harris says that Mr Guthrie was told at the meeting on 1 October 2019 that his afternoon or night shift request “could not be accommodated on reasonable business grounds”: First Harris Affidavit at [36]. There is nothing in the First Harris Affidavit as to what Mr Guthrie alleges Mr Punter said at the 1 October 2019 meeting.
Mr Punter sent an email to Mr Guthrie on 4 October 2019 advising Mr Guthrie that as soon as a night shift position was available he would “be moved”: First Guthrie Affidavit at [22].
On 6 October 2019 Mr Guthrie emailed Mr Punter and Ms Coleman setting out specific concerns as to how VGL had handled his flexible working arrangement request, which was, essentially, reiterating his earlier assertions as set out above: First Guthrie Affidavit at [23] and Annexure JG-12.
On 11 October 2019 Mr Guthrie says he made an application to the FWC concerning his request for flexible working arrangements, and on 14 October 2019 emailed Ms Coleman requesting that the dispute resolution process under the relevant industrial award be followed, but was advised by Ms Coleman that VGL did not intend to discuss the matter further, but that VGL would consider Mr Guthrie for a shift transfer if a position became available, and that the FWC application was a matter for Mr Guthrie, but that VGL’s response would not differ if and when a response was required by the FWC: First Guthrie Affidavit at [24]-[25] and Annexure JG-13.
There was a conference before the FWC on 11 November 2019: First Harris Affidavit at [37], at the end of which Mr Guthrie says that he understood VGL “was going to contact me and step through the dispute resolution process” but that VGL “made no attempt to contact … [him] regarding the dispute resolution process, and continued to maintain that the concerns … [he] had about … [his] flexible working arrangement request had been resolved”: First Guthrie Affidavit at [26]. Mr Harris says that Mr Guthrie filed a Notice of Discontinuance of the FWC application on 14 November 2019: First Harris Affidavit at [37].
Dismissal
Mr Guthrie was dismissed on 9 December 2019 by way of a letter from Mr Punter (“Dismissal Letter”) handed to Mr Guthrie by Mr Mu Sung (and signed by Mr Mu Sung on behalf of Mr Punter): First Guthrie Affidavit at [27], which relevantly read as follows: First Guthrie Affidavit at Annexure JG-3:
The purpose of this letter is to advise you that we will not be continuing your employment with … [VGL] with immediate effect due to your nonprofessional work behaviours displayed in the workplace which contravene the company Code of Conduct and our Health and Safety HSEQ Administrative Three Strike Policy.
In relation to Mr Guthrie’s dismissal Mr Harris says: First Harris Affidavit at [40]-[41], that:
40. The Applicant's employment was terminated by VISA for the following reasons:
a. Overall performance including failures to notify allocators of all breaks as per business requirements, failing to call "clear" in a timely manner, unwillingness to take directions and cooperate or follow reasonable directions or procedures, excessive idle times and taking too long at each stoppage;
b.Breaches of the HSEQ Administrative Policy including on 17 May 2019, when the Applicant failed to perform his pre-start and subsequently damaged the trailer A-frame and Jockey wheel of the truck;
c.Attitude and behaviour concerns that did not reflect the Code of Conduct and Ethics; and
d.Threatening and antagonist behaviour.
41.As to paragraph 40(d) above, in addition to the matters raised in paragraphs 40(a) to (c) above, it was the Applicant’s behaviour and approach to his work, his colleagues and me, that led to the Applicant’s termination. It was not the content of the queries he raised that VISA was concerned about. It was his ill-manner and abrasive approach that was taken into account (in addition to the breaches of policies and procedures) when deciding to terminate his employment.
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 CONVENIENCE
Mr Guthrie’s Submissions
Mr Guthrie submits that the balance of convenience favours the granting of the interim injunction because:
(a)since the Dismissal Decision, Mr Guthrie has fallen into financial difficulty, and has not been able to obtain suitable alternative employment to meet his financial responsibilities;
(b)the Application in a Case for reinstatement was only brought after Mr Guthrie attempted to resolve the dispute with VGL (presumably this is a reference to attempting to resolve the dispute by Court ordered mediation which took place on 30 June 2020, and which did not resolve the matter);
(c)VGL have had the capacity at various times since the Dismissal Decision to reengage Mr Guthrie and this would have been a satisfactory and good faith resolution of the dispute, but VGL have misrepresented:
(i)the number of drivers engaged from the Perth depot at the time of the Dismissal Decision;
(ii)the number of drivers currently engaged from the Perth depot;
(iii)the engagement of new drivers at the Perth depot since the Dismissal Decision;
(iv)current staffing issues at the Perth depot and the impact this is having on the guarantee of deliveries and delivery times; and
(v)the impact of COVID-19 on VGL’s business.
In the course of oral submissions at hearing Mr Guthrie:
(a)when asked about the delay in filing the Application in a Case, said that there was no explanation for that delay: Transcript at 3;
(b)said that it was intended to make application to amend the Originating Application to include reinstatement as a remedy in any final orders sought: Transcript at 3;
(c)submitted that since the Dismissal Decision VGL had made engagements on a fulltime basis and that three of them are ongoing and that there has been inconsistent and contradictory evidence given by VGL about the number of trucks at VGL’s Perth depot, although this latter point was one Mr Guthrie did not “intend to press too much”: Transcript at 4, and further that Mr Harris’ evidence concerning truck numbers was “not necessarily” being questioned: Transcript at 5; and
(d)given his needs to have a defined start time and finish time there are limited opportunities for the employment of Mr Guthrie in the transport industry: Transcript at 6.
VGL’s Submissions
VGL submitted that the balance of convenience weighs in favour of not ordering temporary reinstatement, for the following reasons:
(a)Mr Guthrie does not seek reinstatement as a final remedy, nor did he seek interim reinstatement when he filed the Originating Application on 2 April 2020. Rather, he seeks compensation and pecuniary penalties as his final remedy. Mr Guthrie has failed to demonstrate that damages will not be an adequate remedy, and any loss or damage can be rectified by damages;
(b)VGL did not replace Mr Guthrie’s previous day shift role and subsequently made the position redundant due to the effects of COVID-19. Further, VGL has taken numerous measures to mitigate the negative impacts of the effects of COVID-19 including reducing its fleet from 15 to 10 truck drivers. To require that VGL employ an additional driver would be an unreasonable and oppressive cost burden and would likely result in further redundancy;
(c)applications for interim reinstatement should be brought very promptly after termination. Mr Guthrie has not provided an explanation for this delay. The delay is both serious and oppressive. It would cause extreme disruption to VGL. Mr Guthrie had knowledge of VGL’s hiring in WA in January, June and September 2020 and did not raise a claim for reinstatement, or discuss reinstatement with VGL, until the Application in a Case. VGL have since made the position redundant and hired casual employees;
(d)Mr Guthrie has not provided any undertaking as to damages. Mr Guthrie claims that VGL would not have incurred any loss were he to succeed in the Application in a Case as he would have provided his labour for any wages or salary paid in the intervening period, but this fails to consider VGL’s current operational circumstances which have rendered Mr Guthrie’s position redundant;
(e)Mr Guthrie’s position would have only existed for two to three months after the Dismissal Decision before the position was made redundant. Therefore, temporary reinstatement would in effect extend Mr Guthrie’s employment. There is no evidence to justify such an order;
(f)it is apparent that Mr Guthrie seeks the interim order for reinstatement because he has not been able to find alternative employment. It is not for VGL to bear the onus of Mr Guthrie not being able to find suitable alternative employment;
(g)the relationship between VGL and Mr Guthrie has deteriorated to a point of no trust and confidence, and to impose interim reinstatement would be unreasonable and disproportionate; and
(h)a consequence of the Originating Application not seeking reinstatement as a remedy is that, if reinstated now, Mr Guthrie will have to be dismissed again at the conclusion of the proceedings, if he is unsuccessful.
Consideration
“Urgency is the first and most basic requirement for granting an interim injunction”: Cairns BC, Australian Civil Procedure (12th ed, Lawbook Co., 2020) at [14.210]. Delay, without reasonable explanation, is a sufficient reason for rejecting interlocutory relief, and an important discretionary consideration: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633 at 638-639 per Bowen CJ, Beaumont and Foster JJ; Williment & Ors v Commissioner of Taxation [2010] FCA 808; (2010) 190 FCR 234; (2010) 79 ATR 650 (“Williment”) at [16]-[18] per Perram J; Renouf v RAC Finance Ltd (No 2) [2018] FCCA 182; (2018) 338 FLR 276 (“Renouf (No 2)”) at [96] per Judge Lucev. What constitutes a delay is a matter of circumstance. A delay of over two weeks in the time taken to approach the Federal Court for the purpose of obtaining interlocutory relief was described as “a very substantial delay”: Williment at [7] per Perram J, which warranted the refusal of injunctive relief: Williment at [18] per Perram J. In Renouf (No 2) at [97] and [100] per Judge Lucev a delay of at least two months was one of a number of factors said to warrant refusal of injunctive relief. In Capcoal Management at [95]-[98] per Katzmann J a delay of two weeks was said to be “insubstantial” where no prejudice was claimed by the other party, very lengthy affidavits (one running to 366 pages) had to be prepared, and other related proceedings were on foot I the FWC.
The delay in the making of Mr Guthrie’s application for interim relief is very significant, as demonstrated by Mr Guthrie:
(a)waiting for nearly five months after the filing of the Originating Application to notify of his intention to seek interim relief;
(b)delaying the making of the Application in a Case until after mediation took place (mediation took place almost three months after filing the Originating Application), and then not actually giving notice of the intention to file the Application in a Case for almost two months, and it being another month thereafter before the Application in a Case was filed;
(c)agreeing to two consent orders, the first of which delayed any hearing of the Application in a Case almost three months, and the second of which further delayed the hearing until at least the early part of the 2021 sitting year, with the net result being that the Application in a Case was not heard until 2 March 2021; and
(d)seeking interim reinstatement to a position he last performed more than fourteen months prior to the hearing of the application for interim relief.
In circumstances where Mr Guthrie has been represented by lawyers throughout these proceedings the evidence discloses no reason as to why the interim relief now sought was not sought initially, or earlier, and why the Application in a Case eventually made was not sought to be prosecuted with more expedition. The submission that the delay was attributable to Mr Guthrie waiting until after an attempt was made to resolve the issue at mediation is flawed. It ignores the necessity to act promptly on an interim injunction application: see [93] above, and particularly where reinstatement in employment is sought. In Russell v Institution of Engineers Australia t\as Engineers Australia [2013] FCA 1250 at [84] per Foster J the Federal Court observed that “[a]pplications for interim reinstatement of employment must be brought very promptly after employment”. (It might also be observed that, as a practical matter, an early successful interim application for interim reinstatement would have been likely to place Mr Guthrie in a better negotiating position going in to mediation, and in that practical regard the delay has also probably disadvantaged Mr Guthrie.) Mr Guthrie failed to act with urgency in seeking the interim injunction, and that weighs very heavily against the grant thereof.
As set out at [55] above, at the time of hearing this Application in a Case there was no application before the Court to amend the Originating Application to seek reinstatement as a substantive remedy. Compensation is therefore the primary remedy sought in respect of the alleged dismissal in contravention of workplace right. In the absence of reinstatement as a primary remedy sought by Mr Guthrie it is implicit that compensation is an adequate final remedy. In any event, any monetary loss suffered by Mr Guthrie can be recovered by way of compensation if he is successful on the issue of the alleged dismissal in contravention of workplace right. It follows that compensation is an adequate remedy in this case, and that weighs against the grant of an interim injunction.
A Court will not ordinarily grant an injunction without requiring an undertaking as to damages: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; (1981) 33 ALR 578; (1981) 55 ALJR 107, CLR at 323 per Mason J. In this case there was no undertaking as to damages proffered by Mr Guthrie, and when the matter of there being no undertaking as to damages was raised at hearing, Counsel for Mr Guthrie did no more than say, somewhat equivocally, that if the Court required an undertaking as to damages “the applicant understands what that entails”: Transcript at 6. Even if there were an undertaking as to damages from Mr Guthrie its utility would have to have been considered doubtful when it is Mr Guthrie’s parlous financial position which is said to have given rise to the making of the Application in a Case. Both the failure to proffer an undertaking as to damages, and the possibility that it would likely be inutile in any event, weigh against the grant of an interim injunction.
Mr Guthrie submitted that his financial and employment circumstances were such that they weighed in favour of the grant of the interim relief sought, namely reinstatement. Mr Guthrie’s evidence concerning his financial and employment circumstances was that:
(a)he had been unemployed since December 2019: First Guthrie Affidavit at [30];
(b)his son was only three years old and he needed employment with defined hours: First Guthrie Affidavit at [31];
(c)it had been “impossible to find alternative employment within the trucking industry in which an employer is prepared to give any consideration to my family commitments; 12 to 15 hours a day with no idea of when you will finish work is unfortunately how the trucking industry generally functions”: First Guthrie Affidavit at [31];
(d)he had not been able to access Centrelink benefits: First Guthrie Affidavit at [32]; and
(e)he had “managed to keep our heads above water” by means of early access to his superannuation: First Guthrie Affidavit at [32].
Mr Guthrie also gave evidence about his view of the availability of work at VGL’s Perth Depot, as follows:
(a)that VGL continued to employ the same number of drivers, but not the same drivers, in November 2020 as it did in December 2019, indicating that there had been turnover in employment amongst drivers, and new drivers recruited: Affidavit of John Guthrie affirmed 26 November 2020 (“Second Guthrie Affidavit”) at [4];
(b)that advertisements had been placed on at least four occasions from January 2020 to October 2020 seeking drivers, and on at least two of those occasions both day and afternoon or am and pm shifts had been advertised without a requirement for a DGL: Second Guthrie Affidavit at [4], and see also the Affidavit of John Guthrie affirmed 23 February 2021 (“Third Guthrie Affidavit”) at [3]; and
(c)that since March 2020 VGL’s Perth truck fleet had reduced in number from nine to six because of the effects of Covid-19: Second Guthrie Affidavit at [5], and see also Third Guthrie Affidavit at [4], disputing evidence from Mr Harris (First Harris Affidavit at [44] and [49])
In an affidavit affirmed by Mr Harris on 26 February 2021 (“Second Harris Affidavit”) Mr Harris:
(a)explains the nature of data provided to Mr Guthrie from which Mr Guthrie has drawn the conclusions set out at [99(a)] above, and says that it remains the case that VGL employs nine employee at its Perth depot and 10 employees at its Lake Bibra depot: Second Harris Affidavit at [9]-[11];
(b)says that prior to the Dismissal Decision VGL employed 15 drivers at the Lake Bibra depot, but now only employs 10 at that depot, the reduction of five drivers being accounted for by three have being made redundant, one having been employed for a day only, and the other being Mr Guthrie: Second Harris Affidavit at [12]-[13];
(c)says that there have been the usual fluctuations in operational requirements in the ordinary course of business, primarily due to Covid-19 issues, and that there has been some increase in business in 2021, but that that has not warranted recruitment of additional employees beyond the current 10 employees at the Lake Bibra depot: Second Harris Affidavit at [14]-[17]; and
(d)says that three trucks were sold by VGL in Western Australia, and not replaced, in September 2019, and further that Mr Guthrie’s recollection concerning two other trucks, which Mr Harris says were relocated and subsequently sold in Melbourne, is incorrect: Second Harris Affidavit at [18]-[19].
In relation to the employment and truck sale data referred to at [99]-[100] above whilst the evidence has not been tested it appears to the Court that the evidence of Mr Harris is more reliable, and more consistent with, the documentary evidence. By contrast, Mr Guthrie’s evidence appears speculative, and may involve some misinterpretation of the documentary evidence. To the extent that the employment and truck sale data is relied on by Mr Guthrie to persuade the Court that VGL has capacity to reinstate him at this point in time it is not persuasive.
In relation to Mr Guthrie’s financial position it is not possible on the evidence to ascertain with any certainty the precise, or even an approximate, indication thereof. That is because, apart from generalities concerning unemployment, inability to obtain Centrelink benefits, and reliance on early release of superannuation details, there is a complete lack of specificity as to Mr Guthrie’s actual financial position. The Court is not informed as to the number and nature of positions he might have applied for, or why it is (assuming Mr Guthrie has been informed) that he has not qualified for Centrelink benefits, or how much he has been paid in early release superannuation benefits. There is no detail as to whether Mr Guthrie has any savings or monies at bank, or access to other monies (for example, any income from any employment his wife may have: First Guthrie Affidavit, Annexure JG-4 (“my … son who I … look after … whilst my wife is at work”)) or from realisable assets. A very general inference that Mr Guthrie’s financial position is not especially advantageous might be drawn from his making of the Application in a Case for interim reinstatement and the failure to proffer an undertaking as to damages, but, and particularly in the complete absence of specificity as to Mr Guthrie’s financial position, it does not warrant a conclusion that his financial position is prejudicial, or sufficiently prejudicial, to weigh the balance of convenience in favour of interim reinstatement.
Having regard to the matters set out above it is the Court’s view the balance of convenience weighs heavily against the grant of the interim injunction sought by Mr Guthrie.
WHETHER TO GRANT AN INTERIM INJUNCTION
Having regard to the fact that the Court has concluded that:
(a)there is not a serious question to be tried: see [58] above; and
(b)the balance of convenience weighs heavily against the grant of the interim injunction sought by Mr Guthrie,
it is plain that Mr Guthrie’s application for an interim injunction granting interim reinstatement in employment with VGL must be dismissed.
Even if, on the alternative basis considered above by the Court: see [59]-[87] above, there is, as the Court has concluded: see [88]-[89] above, a serious question to be tried in relation to some parts of the final relief presently sought, the Court is of the view that the overall balance of convenience weighs so heavily in favour of VGL, and particularly so because of the delay, that the Court’s discretion ought not be exercised in favour of Mr Guthrie’s Application in a Case for an interim injunction granting interim reinstatement, and on this alternative basis that Application in a Case would be dismissed in any event. In relation to the alternative basis, dismissal of the Application in a Case for an interim injunction granting interim reinstatement carries a lower risk of injustice: Bradto v State of Victoria [2006] VCSA 89; (2006) 15 VR 65; (2006) V Conv R 54-722 at [35] per Maxwell P and Charles JA.
EXPEDITED HEARING
There is no basis for an expedited final hearing: this is a “run of the mill” adverse action case with no distinguishing features which warrant expedition. The Court notes Mr Guthrie’s financial and employment difficulties, however, that is not unusual in a case of this type, and does not provide a persuasive basis for expedition, and particularly so having regard to the observations at [102] above. It follows that the matter will therefore be listed for further directions at the next available directions hearing.
COSTS
Mr Guthrie submitted that the costs of the Application in a Case ought, at the very least, be reserved, but that the preconditions for a costs order under s 570(2) of the FW Act had not been met: Transcript at 6-7, the latter being consistent with the Application in a Case which sought no order as to costs.
VGL submitted that because of Mr Guthrie’s knowledge of the issues of delay, his not seeking reinstatement in the final hearing, and the limited evidence as to irreparable harm, that the discretion to make a costs order under s 570(2) of the FW Act might be enlivened: Transcript at 11-12.
On the face of it this is a no costs matter: FW Act, s. 570(1). The Court observes that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints: FW Act, s. 570(2), with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J. If, however, VGL considers that it might be entitled to costs an application for the costs of the hearing of the Application in a Case can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth) within seven days.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)the Application in a Case seeking a temporary injunction reinstating Mr Guthrie until final hearing or determination, or further order, in this matter be dismissed, save as to costs;
(b)any application under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth) for the costs of the hearing of the Application in a Case must be made within seven days;
(c)there will be an order in relation to the striking out of evidence in the First Harris Affidavit as indicated at [10] above; and
(d)the matter will be listed before the Court for further directions at the next available directions hearing,
and there will be orders accordingly.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 23 March 2021
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