Heathcote v Telstra Corporation
[2003] FMCA 118
•7 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEATHCOTE v TELSTRA CORPORATION | [2003] FMCA 118 |
| HUMAN RIGHTS – Allegations of sexual discrimination and harassment in workplace – application for an interim injunction under s.46PP of the Human Rights and Equal Opportunity Commission Act – determination of status quo – whether there was a ‘genuine issue to be tried’ – balance of convenience test. |
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PP
Disability Discrimination Act 1992 (Cth)
Sex Discrimination Act 1984 (Cth) s.28A
McIntosh v Australian Postal Corporation [2001] FCA 1012
| Applicant: | DONNA NIKOL HEATHCOTE |
| Respondent: | TELSTRA CORPORATION |
| File No: | WZ 31 of 2003 |
| Delivered on: | 7 April 2003 |
| Delivered at: | Sydney |
| Hearing date: | 20 March 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms J Stevens |
| Solicitors for the Applicant: | Marks & Sands Lawyers |
| Counsel for the Respondent: | Mr T Caspersz |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs pursuant to Part 21 Rule 21.10(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 31 of 2003
| DONNA NIKOL HEATHCOTE |
Applicant
And
| TELSTRA CORPORATION |
Respondent
REASONS FOR JUDGMENT
The applicant is an employee of the respondent who has made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) that the respondent has discriminated against her contrary to the provisions of the Sex Discrimination Act 1984 (Cth) (SDA). The complaint that she makes is related to her treatment by a number of the respondent’s employees in managerial or supervisory capacities. There is also a complaint concerning the existence of an e-mail from a co-worker which, the applicant alleges, would constitute a breach of s.28A of the SDA.
The applicant’s complaints are set out in a complaint form which contains some 280 paragraphs and was submitted to HREOC on
29 January 2003. Annexed to the complaint itself are a large number of documents which are intended by the applicant to establish her claim.
The applicant commenced working with the respondent in November 1999 as a temporary personal assistant to the contracts manager. She was made a permanent employee in January 2000. In about February 2001 she was appointed a resource planner on a Level 6 contract. In January 2002 she was asked to take on a temporary process improvement position which has now been renamed as a business development manager. One of the applicant’s former staff has been moved into the position which the applicant formerly occupied. On or about 20 October 2002 the applicant commenced a period of leave from the respondent on the basis of stress. The applicant made a claim for workers compensation in respect of this leave. On 28 February 2003 the applicant received a determination from the Government Insurance Office under the Safety, Rehabilitation and Compensation Act 1988 that the respondent was liable to pay her compensation in respect of “reactive depression” for the period 19 October 2002 to
28 February 2003.
The applicant gave evidence that the temporary position, which she was previously occupying before her period of stress leave, has disappeared.
The applicant is currently in a voluntary “return to work” program. Her evidence is that this program does not provide her with meaningful employment and she wishes to return to a position consistent with her abilities.
On 24 February 2003 the applicant filed an application in this court seeking an injunction pursuant to s.46PP of the HREOC Act. Her application sought the following orders:
(1)That the employment and sick leave status of the applicant be preserved and maintained until her complaint under the Human Rights and Equal Opportunity Act has been heard and determined; and
(2)That the respondent be restrained from harassing or victimising the applicant until her application under the Human Rights and Equal Opportunity Act has been heard and determined; and
(3)That the respondent’s internal investigation into the applicant’s complaints be stayed until hearing and determination of the applicant’s complaint under the Human Rights and Equal Opportunity Act.
When the matter came before me the applicant’s counsel advised that the applicant was only seeking an order that her Level 6 position be preserved together with her car and car bay pending conciliation by HREOC which she estimated would take approximately six months. The applicant also asked that the position, which Telstra would place her in, should be a position that did not involve contact with people in respect of whom her complaints had been made.
Section 46PP of the HREOC Act is in the following form:
“46PP Interim injunction to maintain status quo etc.
(1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person.
(2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
(3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46 PE or 46PH.
(4) The court concerned may discharge or vary an injunction granted under this section.
(5) The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.”
The applicant gave evidence which was based upon her affidavit and exhibits including the complaint. She pointed out that in a series of e-mails from 4 March through to 19 March 2003 she sought clarification of her position with Telstra but did not receive any satisfaction. Telstra’s final response to her was to indicate that as she had commenced the current proceedings they would await the result of these before deciding what work they would send her back to when the return to work program terminated. The applicant tendered in evidence her job description and contract of employment with Telstra. She gave evidence that she had wanted to undertake work in marketing but had formed the opinion that she did not have a long-term future because of the treatment she had received from her employer since putting in the HREOC complaint. She was not cross-examined.
The respondent submitted that there was no jurisdictional basis for the complaint. It argued that the affidavit did not depose to the facts contained in the applicant’s complaint to HREOC and she did not otherwise confirm their truth on oath when she gave her evidence. The respondent submitted that, put at its highest, the complaint does not reveal any reasonably arguable claim for relief under the SDA in the terms of the sections which the applicant has quoted as being those upon which she relies.
I accept that the contents of the complaint to HREOC have not been deposed to and that strictly speaking the only matter in evidence is the existence of a claim. However, I believe that any error in this regard is an error of procedure for which the applicant is not personally responsible and I do not think it is appropriate, after 280 paragraphs of the compliant have been traversed in some detail in argument, to strike the matter out on this basis. This is particularly so given the more informal nature of proceedings before the Federal Magistrates Court, and I propose to proceed as if the claim had been deposed to.
During the course of the hearing, and after some prompting from myself, the applicant’s counsel submitted that the complaint as set out might reveal not only the claims under the SDA that had been suggested but others and possibly claims under the Disability Discrimination Act 1992 (Cth) (DDA). Whilst I accept this argument, there must be some bounds put on a court which is being asked to grant injunctions to preserve the ability of HREOC to act. Therefore, although the factual matrix contained in the 280 paragraphs might support a claim under DDA or possibly a claim for victimisation under that Act or the SDA, the applicant did not make the possible existence of such breaches known to the respondent. In these circumstances I would not be prepared to go outside the claims which have actually been made. However, I am satisfied that there is a jurisdictional base for this application on the basis of the complaint to HREOC which I have admitted.
In order to obtain an injunction under s.46PP of the HREOC Act an applicant must show that she has a reasonably based fear that the respondent would, if not restrained, alter the status quo as it existed prior to the lodging of the complaint. But the applicant must also convince the court that there is a serious issue to be tried between the parties. In other words the complaint, if accepted, would constitute a breach of the relevant Act and would not be dismissed on the grounds of triviality. Finally, the applicant must persuade the court on the balance of convenience. These matters are considered by Heery J in McIntosh v Australian Postal Corporation [2001] FCA 1012 where His Honour declined to grant an injunction because it had been accepted by the applicant that the employment relationship between the parties had broken down. This is not the case here.
The respondent argued that there was no serious issue to be tried between the parties. It argued that the e-mail complained of did not consist of a statement of a sexual nature and in any event did not surface as a complaint to management for a period of at least 3 months after it had been sent. It was only raised by the applicant by way of defence to certain charges which had been laid against her about her conduct in respect of certain contracts. The applicant responded that whilst the matter had not been raised with management it had been raised with the writer’s superior immediately and attempts had been made to resolve the issue at that level. The applicant in her complaint makes reference to certain remarks made by her line managers which, if substantiated, could ground a finding of a breach of the SDA. I am satisfied that there is a real dispute between the parties even on the limited basis on which the case has currently been mounted. I would not be disposed to refuse an injunction on this ground.
The respondent also argues that the balance of convenience would favour it if I were otherwise minded to grant the injunction. It argues that the very weakness of the case put by the applicant assists the court in coming to such a conclusion. The applicant argues that there would be no inconvenience for Telstra to put her in a position under which she would carry out meaningful work for the company at the level at which she was employed. The respondent argued that if it was forced to hold her in that position for a period of 6 months or until the complaint was disposed of then that would impede certain reorganisations which were going ahead, concerning which details were given in evidence. Telstra wanted the liberty to employ the applicant in any job description it believed it was appropriate provided that her pay and other conditions did not change. As I understood the submissions for the company this might include sitting in a room doing nothing all day.
The contract between the respondent and the applicant sets out both parties’ rights. In paragraph 1.2 it states:
“As your manager I will seek your contribution and listen to your views.”
At 1.3 it says:
“In accepting this agreement you (the worker) undertake to do any work within your skills and ability. You agree to work flexibly and participate in continuous improvement of work practices and systems.”
At 4.1 the contract states:
“Telstra may reassign you at any time to an equivalent role for which Telstra judges you to be suitably qualified and experienced, either within Telstra or on secondment to any related company.
At 6.1 it states:
“You are required to perform your role in a proper and efficient manner. You are to devote your time, attention and energy to the performance of your duties and use your best endeavours to promote and enhance the interests of Telstra or business to which you have been assigned pursuant to this agreement.”
The submissions made by the respondent were at times confusing. First it said that the proposal reorganisation did not affect workers at the level of the applicant. Then it argued that it could not make any agreement to put the applicant into a particular position because the requirement to maintain her in that position until the end of the HREOC proceedings would fetter its ability to carry out the reorganisation. I obtained the distinct impression from the arguments being put that the respondent considered it had every right to place the applicant in a room with no work to do provided it paid her. Even if I accepted that the applicant’s claim as currently articulated is weak and that therefore the scales in the balance of convenience were weighted in favour of the respondent, I could not see how it would be more convenient for an employer to have on its staff an employee who was not being required to carry out any work or who was not employed in a manner which provided some benefit to the employer. If the employee was asking to be returned to a position which she had occupied prior to her taking the stress leave and which was still in existence, I would have had little hesitation in finding that the balance of convenience lay with her.
However, the situation in this case is not that clear cut and the concerns, which I now discuss, relate both to the formulation of the applicant’s claim and to the question of “status quo”. The purpose of an injunction under s.46PP is to prevent an alteration in the status quo as between applicant and respondent whilst a complaint is being considered and, hopefully, conciliated. What is the status quo in this case? Although s.46PP refers to the “status quo, as it existed immediately before the complaint was lodged” the situation of a person in a back to work program who has received advice from her medical practitioner that she is fit to go back to work (other than work with the persons against whom she is making allegations of breaches of the SDA) cannot to my mind be considered the “status quo immediately before the filing of the complaint.” Such a situation is by its very definition temporary. An injunction to require a person who is fit for work to remain in a back to work program would lack utility. In this case it is necessary to look further to discover what the status quo might be.
I am of the view that the status quo is that of an employee of Telstra pursuant to the contract of employment found as Exhibit 5 which would include the work place practices relevant to her at any particular time. For example, it would include the workplace practice which allows her to return to work following a period on workers’ compensation by way of a voluntary return to work program. This means that she is entitled to assert such rights that she believes flow from her contract. The evidence is that another employee has filled the applicant’s original position and the temporary position, which she occupied prior to going on stress leave, has disappeared. That situation would allow Telstra to invoke clause 4.1 of the agreement and assign the applicant to an equivalent role for which she is judged to be suitably qualified and experienced. Telstra has not assigned her to such a role and has made it clear that it will not do so until after my decision. On the other hand Telstra has not said that it will not do so. The applicant has not satisfied me on the evidence which she has put forward that Telstra intends to breach its contract with her. The only “evidence” of that possibility is in the submissions made by Telstra to which I have previously adverted. Telstra has never said that it would employ the applicant by placing her in a room with nothing to do, only that it might be entitled so to do under the terms of the contract. Whilst I would doubt this, it is not the justiciable issue before me at the present time.
At the end of the hearing the applicant changed her claim for relief to a claim to be placed in “a job coded position at Level 6”. Because I did not understand what such a job description entailed and no evidence had been called about it, I asked the parties to discuss the matter together to see whether or not some description of a job could be given by the applicant to the respondent which the respondent was prepared to provide. I was informed after a short adjournment that whilst the respondent would offer a “job coded position at Level 6” the applicant now sought “a job coded position at Level 6 with a job description CFW9 Level 6”. Telstra’s response to this request was that it was not a matter that had originally been claimed, no evidence had been led in relation to the proposal and it was not in a position to prepare any response to it.
This was the unsatisfactory state of affairs that existed when the case was concluded. I am not prepared to grant the applicant the relief sought. An applicant applying for an injunction, such as one provided for under s.46PP of the HREOC Act, is under a duty to clearly articulate exactly what relief it is that is being sought. The form of relief requested by this applicant changed twice from that originally contained in her application. I quite understand her request for meaningful work. But a court cannot give an injunction requiring an employer to give an employee “meaningful work” because this is not a concept that is clearly ascertainable. An injunction of this type does not reflect the status quo as it existed immediately before the complaint was filed. As I have also found that the applicant has not satisfied me that the respondent intends to change the status quo as I have found it to be, there is no basis for an injunction at this time.
I dismiss the application. I order that the applicant pay the respondent’s costs pursuant to Part 21 Rule 21.10(a). I certify that it was reasonable for the respondent to employ an advocate pursuant to Part 21 Rule 21.15 of the Federal Magistrates Court Rules.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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