Isser v BPH Waio Pty Ltd
[2022] FedCFamC2G 985
Federal Circuit and Family Court of Australia
(DIVISION 2)
Isser v BPH Waio Pty Ltd [2022] FedCFamC2G 985
File number(s): PEG 217 of 2022 Judgment of: JUDGE STREET Date of judgment: 21 November 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – application for interlocutory relief – where the applicant seeks an injunction against the respondent, preventing them from terminating the applicant’s employment – where the applicant has not been terminated from her employment – where the applicant has not sought relief from the Fair Work Commission – whether the applicant has a prima facie successful case in respect of her adverse action claim – balance of convenience considered for whether to grant injunctive relief – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 372, 545, 562 Cases cited: Concut Pty Ltd v Worrell [2000] HCA 64
Grewal v Sydney Trains [2022] FedCFamC2G 823
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 21 November 2022 Place: Perth Solicitor for the Applicant: In person Counsel for the Respondent: Mr K de Kerloy Solicitor for the Respondent: Herbert Smith Freehills ORDERS
PEG 217 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEESTA ISSER
Applicant
AND: BHP WAIO PTY LTD
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
21 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for interlocutory injunction is dismissed.
2.Leave is granted to the applicant to discontinue the proceedings, within 14 days, with no adverse consequences as to costs.
3.Liberty to apply on 5 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
introduction
These proceedings were commenced on 10 November 2022, under the general protection provisions, in which the applicant sought an urgent interlocutory injunction under s 545 of the Fair Work Act 2009 (Cth) (“the Act”), in respect of the Court’s jurisdiction confirmed under s 562 of the Act.
The applicant commenced her employment with the respondent in October 2021, as a Mechanical Reliability Engineer, under a contract which has provisions to permit her dismissal on one month’s notice. In summary, the applicant has brought these proceedings at a point in time when she has not, in fact, been dismissed by her employer, and where her employer conducted an investigation, and issued a show cause notice. It appears to be the show cause notice and the disciplinary regime, which the respondent has in place to maintain a safe workplace, that is at the core of the alleged grounds by the applicant of unlawful conduct by the respondent.
The applicant appears to have shown no insight in relation to the difference between the existence of a disciplinary conduct regime that applies to all employees to ensure a safe workplace, and her disagreement with part of the content in that workplace investigation. The application has ignored that part of the complaint which identified her lack of insight in relation to the engagement with others, and compliance with the code of conduct, and charter of values.
The applicant’s complaints are far-reaching but, in substance, she alleged adverse action under s 340 of the Act for a prescribed reason, and seeks the Court’s assistance, by way of an injunction, to continue her employment. The applicant’s material indicates that she wants to ensure that she is in the position of a guaranteed employment for three years, given other contracts that she has entered into, and believes herself to have been the subject of unlawful process, and that the Court should grant an injunction to ensure her continuing employment.
before the court
At the commencement of the hearing, the Court raised with the applicant that, as the process was the subject of still ongoing investigation, and as part of the problem of the complaint reflected a lack of insight by the applicant, and that the applicant’s response seemed to reinforce a breakdown in the employer/employee relationship, the applicant might like to consider discontinuing these proceedings, and engaging with her employer. That opportunity was offered to the applicant twice in the course of the hearing. The applicant reinforced that she has no confidence in the line management, and criticised three levels of management of the respondent in that regard. At this stage, the Court is not making any findings in respect of the conduct the subject of the notice to show cause, nor is the Court in a position to identify whether there has, in fact, been any adverse action taken for a proscribed reason.
The problem confronting the applicant, however, is that the material that has been provided – together with the response by the applicant shows a complete breakdown in the employer/employee relationship, in the context of the confidence and trust necessary for a senior manager. In the context of the case, the court raised with the applicant, on more than one occasion, the need for insight in relation to the substance of the complaint, and the legitimacy of the procedure. The applicant’s response was to query, “what is insight?”
chronology
The chronology in the matter is, relevantly, as follows:
Date Event October 2021 The applicant’s commencement of employment with the respondent 15 August 2022 There was a leadership change Approx. 15 August 2022 The applicant identifies having received a warning in relation to her behaviour 22 August 2022 There was an email sent to the company by the applicant 24 August 2022 There was another email sent by the applicant, raising an ethics point 9 September 2022 The applicant was banned from the site and, it appears, has not returned to work since then due to that ban. 16 September 2022 There was a workplace complaint 19 September 2022 The investigation started and there was a formal stand down notification given to the applicant. 5 October 2022 There was an investigator meeting 12 October 2022 There was a show cause notice issued to the applicant 17 October 2022 There was a 17-page response by the applicant
The applicant has received further communications subsequent to 17 October 2022, identifying that there are ongoing investigations. The respondent identified that there has been no decision made to dismiss the applicant, but the respondent submitted that there is no proper basis for the grant of an interlocutory injunction.
the law
The principles relating to the relevant law in respect of an interlocutory injunction were set out in Grewal v Sydney Trains [2022] FedCFamC2G 823 at [13]-[16]:
[13] In determining whether or not there could be granted an interlocutory injunction, the Court has taken into account the relevant principles identified in the joint judgment of Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], which picks up the reasons of the learned Gummow and Hayne JJ at [65]:
The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed….
[14]The reasons of the learned Gummow and Hayne JJ, supra. at [65] refer to the plaintiff showing a sufficient likelihood of success to justify in the circumstances the preservation of the status quo.
[15]The Court has also taken into account the relevant principles in Beecham Group v Bristol Laboratories (1968) 118 CLR 618 at 622 as to the two main inquiries and as to how strong the probability at the trial, if the evidence remains as it is, of being entitled to relief needs to be, depending upon the rights and practical consequences that flow from the order sought. The Court has also taken into account that the issue of whether a prima facie case is made out and the balance of convenience and justice are related inquiries.
[16]The Court has also taken into account the decision of the learned Bromwich J in DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 87, makes apparent an approach to a contract of employment not being one that would be the subject of interlocutory injunction, required mutuality or the need for a negative stipulation, are no longer principles that govern, given the wide discretionary interim injunction statutory power, evident purpose “to prevent stop or remedy the effects of a contravention”, the language and statutory context of s 545 (2) of the Act.
The relevant law in relation to summary dismissal from Concut Pty Ltd v Worrell [2000] HCA 64 is as follows:
[51]Five basic starting points may be stated for the elucidation of the applicable law. I did not take them to be disputed by the parties:
…
3. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:
"[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal[58]. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." [Blyth Chemicals Ltd v Bushnell (1993) 49 CLR 66 at 81-82].
In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed[59]. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee[60]. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial[61]. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.
4. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily[62]. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability[63], it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment[64]. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer[65]. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer[66]. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal[67].
evidence
The evidence before the Court is comprised of the applicant’s Form 4, which sets out her history and her workplace performance, and what she regarded as a satisfactory and positive engagement until the change of management. The applicant contended that she had been a victim of steps taken by others in response to her raising a complaint.
The applicant identified, in detail, the reasons why she disagrees with the subject matter of the notice to show cause. It is, perhaps, useful to identify that part of the subject matter of ground 1 in that notice to show cause was the argumentative conduct of the applicant. Part of the conduct of ground 2 was her email engagement with others, which was described as condescending and unnecessarily aggressive, and not in keeping with the collaborative way of working. Part of the complaint in ground 3 was the entirely inappropriate manner of raising her concerns. Part of the conduct in ground 4, in relation to emails, is engaging in an entirely inappropriate manner in raising concerns.
The conduct identified in ground 5 is particularly of concern, because it reinforces, on the evidence before the Court, a fundamental breakdown of the employer-employee relationship and required confidence given the applicant’s desire to apparently record senior management. The applicant disputes whether it was intended to be done secretly, but the substance of the matter is the conduct involved in relation to taking such a step, in respect of engaging with a departmental manager. Part of the core of the complaint in ground 6 is unnecessarily confrontational behaviour with colleagues and part of the core of the complaint in relation to ground 7 was that:
You continue to fail to appreciate how your approach to recent issues has been inappropriate, counterproductive and rude.
The applicant’s document, which has been marked Exhibit A, reveals a failure by the applicant to understand that the disciplinary code applies to her. The issuing of the disciplinary show cause notice is caught up with the applicant’s assertions of wilful misrepresentation in relation to describing the complaint process, asserting that conduct in relation to the complaint process was itself discriminatory, asserting that the complaint process was gaslighting and unlawful misrepresentation, asserting that the complaint process was bullying, harassment and retaliation by management, asserting that her rights had been wilfully violated, making reference to the assertion of a flawed manager’s prerogative for adverse harassment, unjust and malicious process, describing the complaint process as bullying and harassment, being vexatious with allegations and describing the complaint process as unjust, adverse and vexatious.
The Court is not in a position today where it is making findings in respect of any alleged adverse action. The Court is not in a position to do so because it has not conducted a final hearing and there is a lack of proper and concise specificity in the applicant’s allegations of contravention. However, in considering whether or not there is any prima facie case, or whether the balance of convenience warrants the grant of an injunction, the Court has taken into account whether, on the conduct before the Court identified in the show cause notice and the applicant’s response and further conduct, identifies conduct by reason of which an employer could at a prima facie approach lawfully summarily dismiss the applicant.
The other material before the Court was the applicant’s unsworn affidavit which the Court permitted to be put into evidence and marked exhibit B. There were also, were two different version of what was said to be the code of conduct, one of which clearly identified the expectation that:
You should always strive to be inclusive, collaborative and supportive.
The applicant contends that the latest versions does not include such words. Be that as it may, it is apparent that there is quite properly a code of conduct and a disciplinary process that the respondent has in place, and which should be permitted to be followed.
The applicant’s Exhibit A and Exhibit B reflect a breakdown of trust and confidence between the applicant and her employer and a fundamental breakdown in the relationship. The applicant identified having lost confidence in her line management as referred to above.
The Court notes that the applicant in her document, Exhibit B, identified as desire to seek other interim remedies, joining other people in what might be summarily described as further aggressive conduct. No proper notice of those other interim steps were given to the respondent and the Court declined to permit the same to be pursued in this interim hearing. Whether the applicant seeks to pursue such matters, they need to be properly pursued by an application in a case supported by an affidavit, with proper specificity as to the nature of the alleged case. It is not appropriate at this stage to permit without proper material the applicant but that type of conduct is the very issue that the Court has tried to emphasise that, in the notice to show cause, was part of the gravamen of the complaint in respect of the applicant. broadening her dispute in terms of expanding it by joining other persons and seeking particular discovery which may only re-enforce the very failure of a relationship of confidence and trust between employer and employee that the Court has been trying to get the applicant to grasp by way of insight as well as the legitimacy of pursuit of a disciplinary process. The applicant suggested that she accepted feedback, however the applicant’s material on one view displayed a lack of capacity to accept criticism or to positively understand, accept and address the kernel of her alleged conduct the subject of the adverse findings in the show cause notice.
findings
The Court is not satisfied that there is a prima facie case in that the applicant, on the evidence as it currently stands, has a real possibility of succeeding in respect of the adverse action case as advanced by the applicant. Further, the Court is of the view that, on the material currently before the Court, there is a prima facie basis upon which an employer could lawfully summarily dismiss the applicant.
In those circumstances, this is not an appropriate case for the grant of an interlocutory injunction. The Court is not satisfied that the applicant has a prima facie case, taking into account the remedies that the Court can grant if the applicant is ultimately successful. The balance of convenience weighs against the grant of an injunction.
The Court has taken into account the policy underlying s 545 of the Act, which is to prevent unlawful conduct, apprehended unlawful conduct and ensure compliance with the Act. However, the broad scope of s 545 does not mean, as the applicant appears to believe, that every employee is entitled to come to Court to seek to obtain an injunction to continue their employment when they are the subject of action under a disciplinary regime intending to maintain a safe workplace. The applicant, at this stage has shown a complete lack of insight as to the gravamen of the complaints and breakdown of the employment relationship of trust and confidence. There may be circumstances in which the Court will do so. Given the material before this Court at this stage, allowing for the unrepresented nature of the applicant’s material, this is not such a case. There Court is not satisfied that there is a prima facie case of proscribed adverse action by the respondent or of unlawful conduct to support the grant of an interim injunction.
A further factor that the Court can take into account, and does separately, is that the applicant could have gone to the Fair Work Commission under s 372 of the Act rather than coming to Court. The applicant did not seek to make this choice in circumstances where there is another arguably more appropriate forum, specifically available in the context of this type of case, that the applicant could have pursued where she had not been dismissed and there is ongoing investigation. This is a further independent factor in the balance of convenience on which the Court would, taken together with the other circumstances, also have come to the conclusion that balance of convenience weighed against the grant of an interlocutory injunction.
The problem facing the applicant is that the Court is not persuaded, at this stage, that the applicant has demonstrated a real prospect of succeeding on the evidence currently before the Court. The Court has not been persuaded that there is a prima facie case of contravention or apprehended contravention by the respondent warranting a grant of an interim injunction.
The Court adds that it hopes that the applicant has listened carefully to these reasons in respect of the need to engage with her employer and identify, if it is the case, a capacity to engage meaningfully as an employee capable of having a working relationship, confidence and trust with her management.
The Court has not addressed all of the content that was in the applicant’s document Exhibit A. There was one matter there however that the Court made reference to that would be of considerable concern if the applicant was being subject to treatment of the kind that the applicant alleged in the workplace relation to performing a scribe function after alleged objection to that role.
The Court is not making findings about what might be the outcome of the ongoing investigations processes, but the applicant may well wish to consider whether she wishes to discontinue these proceedings after having lost this interlocutory injunction application, so that she can meaningfully engage with her employer and demonstrate the level of trust and confidence capable of showing a capacity to have an ongoing relationship with her employer in her senior management role. It is not a matter on which the Court will do more than give the applicant such a further opportunity.
It is for these reasons that the application for an interlocutory injunction is dismissed.
The Court notes that the applicant in her document, Exhibit B, identified as desire to seek other interim remedies, joining other people in what might be summarily described as further aggressive conduct. No proper notice of those other interim steps were given to the respondent and the Court declined to permit the same to be pursued in this interim hearing.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 November 2022 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 25 November 2022
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