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Jones v Queensland Tertiary Admissions Centre Ltd

Jones v Queensland Tertiary Admissions Centre Ltd

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FEDERAL COURT OF AUSTRALIA
Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382
INDUSTRIAL LAW – interlocutory injunction – complaints against applicant CEO by employees and union – application to prevent respondent employer from taking action on basis of allegations and subsequent investigation until applicant’s substantive application is heard – applicant represented employer in Enterprise Agreement negotiations – whether breach by employer of s 340 Fair Work Act 2009 (Cth) – whether breach of terms of applicant’s employment contract – whether serious questions to be tried – whether balance of convenience favours grant of interlocutory injunction – potential harm to employees – whether damages an adequate remedy
Held: interlocutory injunction granted
Fair Work Act 2009 (Cth) ss 176, 178, 340, 341, 342(1), 342(2), 360, 361, 539, 545, 546, 564
Federal Court of Australia Act 1976 (Cth) ss 19, 22
Workplace Health and Safety Act 1995 (Qld)
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 followed
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 cited
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 followed
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited
Kimpton v Minister for Education (1996) 65 IR 317 cited
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 cited
Malloch v Aberdeen Corporation [1971] 1 WLR 1578 cited
Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 cited
Police Federation of Australia v Nixon (2008) 168 FCR 340 cited
United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 cited
ELIZABETH LOUISE JONES v QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
QUD 274 of 2009
COLLIER J
25 NOVEMBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

FAIR WORK DIVISION

QUD 274 of 2009

BETWEEN:
ELIZABETH LOUISE JONES
Applicant

AND:
QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

25 NOVEMBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The respondent be restrained until the hearing of the application or further order from taking any action against the applicant in reliance upon:
(a)any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 7 August 2009; and/or
(b)the complaint made against the applicant by Nicola Bowes dated 7 August 2009; and/or
(c)the anonymous compliant made against the applicant dated 11 August 2009; and/or
(d)the anonymous complaint made against the applicant dated 12 August 2009; and/or
(e)the complaint made against the applicant by Danelle Bayley dated 13 August 2009 and/or
(f)any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 14 August 2009; and/or
(g)the Carol Watson Report on Grievances against CEO, QTAC dated 28 September 2009 and/or
(h)Walter Williams’ diary notes forwarded to the applicant by Professor Deborah Terry on about 30 October 2009.

2.The respondent be restrained until the hearing of the application or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 1382
Decision Date: 25 NOVEMBER 2009

CaseChat Overview and Summary

In the matter of Jones v Queensland Tertiary Admissions Centre Ltd, the plaintiff, Ms Jones, sought interlocutory relief against the defendant, QTAC, on the grounds of alleged adverse action and breach of contract. Ms Jones claimed that QTAC had taken adverse action against her due to her role in negotiating an Enterprise Agreement and sought an injunction to prevent further adverse action, compensation, a pecuniary penalty, and a declaration that she was entitled to natural justice in any investigation into complaints against her. Additionally, she sought damages for breach of contract.

The legal issues for the court to decide were whether there was a serious question to be tried regarding Ms Jones' entitlement to relief, whether she was likely to suffer injury for which damages would not be an adequate remedy, and whether the balance of convenience favoured the granting of an interlocutory injunction. These issues were to be assessed based on the principles set out in Australian Broadcasting Corporation v O’Neill, which require the plaintiff to demonstrate the likelihood of success, the potential for irreparable harm, and the balance of convenience.

The court considered the specific relief sought by Ms Jones, which included an injunction to prevent QTAC from taking adverse action against her based on various complaints and reports, as well as compensation, a pecuniary penalty, and declarations regarding her entitlement to natural justice and breach of contract. The court also examined the background of the application, including the allegations against Ms Jones and the reasons for her claim.

The court ultimately decided that Ms Jones had satisfied the criteria for interlocutory relief. It found that there was a serious question to be tried regarding her entitlement to relief, that she was likely to suffer irreparable harm if the injunction was not granted, and that the balance of convenience favoured the granting of the injunction. As a result, the court granted the relief sought, restraining QTAC from taking any adverse action against Ms Jones until the hearing of the application and from terminating her employment. Costs were reserved for further consideration.

Orders

Orders of the court

1. The respondent be restrained until the hearing of the application or further order from taking any action against the applicant in reliance upon:

(a) any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 7 August 2009; and/or

(b) the complaint made against the applicant by Nicola Bowes dated 7 August 2009; and/or

(d) the anonymous complaint made against the applicant dated 12 August 2009; and/or

(e) the complaint made against the applicant by Danelle Bayley dated 13 August 2009 and/or

(f) any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 14 August 2009; and/or

(g) the Carol Watson Report on Grievances against CEO, QTAC dated 28 September 2009 and/or

(h) Walter Williams’ diary notes forwarded to the applicant by Professor Deborah Terry on about 30 October 2009.

2. The respondent be restrained until the hearing of the application or further order from terminating the applicant’s employment.

3. Costs be reserved.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

However it became clear during the hearing that, at least for the purposes of the interlocutory relief sought, Ms Jones was principally relying on ss 340, 341 and 342 of the FW Act. I shall return to these provisions later in the judgment.Issues for Decision As Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], in all applications for an interlocutory injunction the 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; and·the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and·the balance of convenience favours the granting of an interlocutory injunction. As their Honours observed further, 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 (at [19]). It follows that it is for Ms Jones to satisfy me positively in respect of these issues. Before turning to these issues however it is appropriate to identify the precise relief sought by Ms Jones, and, in more detail, the background to this application.Relief Sought Pursuant to her application Ms Jones seeks relief for adverse action taken against her, and/or proposed to be taken against her, by QTAC because of her role in negotiations for an Enterprise Agreement, and for breach of her contract of employment. The permanent relief sought by Ms Jones is as follows:A. DETAILS OF CLAIMOn the grounds stated in the accompanying affidavit or statement of claim (or such other accompanying document as may be prescribed by the Rules) the Applicant claims:1.Pursuant to section 545(2)(a) of the FW Act, an injunction restraining the Respondent from taking any action against the Applicant in reliance upon:a.any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 7 August 2009; and/orb.the complaint made against the Applicant by Nicola Bowes dated 7 August 2009; and/orc.the anonymous complaint made against the Applicant dated 11 August 2009; and/ord.the anonymous complaint made against the Applicant dated 12 August 2009; and/ore.the complaint made against the Applicant by Danelle Bayley dated 13 August 2009; and/orf.any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 14 August 2009; and/org.the Carol Watson report on Grievances against CEO, QTAC dated 28 September 2009; and/orh.Walter Williams’ hand written diary notes forwarded to the Applicant by Professor Deborah Terry on about 30 October 2009.2.Pursuant to section 545(2)(b) of the FW Act, the Respondent pay the Applicant compensation for loss suffered by the Applicant because of the Respondent’s contravention of the FW Act;3.Pursuant to section 546 of the FW Act, the Respondent pay the Applicant a pecuniary penalty for the Respondent’s contravention of the FW Act;4.A declaration that it is a term of the employment contract between the Applicant and the Respondent dated 29 November 2007 that the Applicant is entitled to be accorded natural justice in any investigation into any complaint or allegation of serious misconduct as set out in clause 15.2 of the employment contract and/or unsatisfactory performance or misconduct as set out in clause 15.3 of the employment contract.5.A declaration that the Respondent is in breach of the contract of employment between the Applicant and the Respondent by failing to:(a)accord the Applicant natural justice in the purported investigation into the allegations and complaints against her, as referred to in paragraph 1 above.6. Damages for breach of contract.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 274 of 2009

JUDGE:	COLLIER J
DATE OF ORDER:	25 NOVEMBER 2009
WHERE MADE:	BRISBANE