Lee v Procter and Gamble Australia Pty Ltd
[2012] FMCA 1000
•27 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v PROCTER & GAMBLE AUSTRALIA PTY LTD & ANOR | [2012] FMCA 1000 |
| HUMAN RIGHTS – Alleged discrimination because of sex and disability – where applicant informed of redundancy – application for injunction under s.46PP of the Australian Human Rights Commission Act1986 (Cth) – status quo – seriousness of issue to be tried – balance of convenience. |
| Australian Human Rights Commission Act1986 (Cth), ss.46PH, 46PO, 46PP Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) Sex Discrimination Act 1984 (Cth), s.14 |
| AB v NSW Minister for Educationand Training [2003] FMCA 16 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Beck v Leichhardt Municipal Council [2002] FMCA 331 |
| Applicant: | JENNIFER LEE |
| First Respondent: | PROCTER & GAMBLE AUSTRALIA PTY LTD |
| Second Respondent: | AMANDA IRWIN |
| File Number: | SYG 2041 of 2012 |
| Judgment of: | Barnes FM |
| Hearing dates: | 26 September 2012 and 27 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ronalds SC and Ms Perigo |
| Solicitors for the Applicant: | Rohan Squirchuk & Associates |
| Counsel for the Respondents: | Ms Doust |
| Solicitors for the Respondents: | Colin Biggers & Paisley Lawyers |
ORDERS
The application in a case of 19 September 2012 is dismissed.
The application of 19 September 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2041 of 2012
| JENNIFER LEE |
Applicant
And
| PROCTER & GAMBLE AUSTRALIA PTY LTD |
First Respondent
| AMANDA IRWIN |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application commenced on 19 September 2012 pursuant to s.46PP of the Australian Human Rights Commission Act1986 (Cth) (the AHRC Act) seeking an interim injunction to maintain the status quo that existed immediately prior to a complaint being made to the Australian Human Rights Commission (the Commission) on 14 September 2012 or to maintain the rights of Ms Lee.
The interim orders now sought are an order in the nature of an interim injunction to prevent Procter & Gamble Australia Pty Ltd (Procter & Gamble) from proceeding with the planned redundancy of Ms Lee and restraining it from terminating her employment until seven days following the termination of her complaint lodged with the Commission on 14 September 2012 alleging breaches of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth).
In addition Ms Lee seeks an order in the nature of an interim injunction pursuant to s.46PP of the AHRC Act directing Procter & Gamble to provide her with a position agreeable to her either within Australia or within the Asia Region at the Band 3 level commensurate with her skills, qualifications and experience and with no reporting lines to a specified employee of Procter & Gamble, a Mr Nihilani.
Ms Lee also sought an interim injunction directed against the second respondent, Ms Irwin, an employee of Procter & Gamble, in relation to taking steps to procure Ms Lee’s redundancy. It was acknowledged in submissions that such order would not be necessary if either or both of the other injunctions sought were granted.
Ms Lee relies on an affidavit sworn by her on 19 September 2012 with numerous annexures including, relevantly, a copy of her complaint to the Commission. She also tendered some Procter & Gamble policy and organisational documents. The respondents rely on an affidavit of Nathan Warner, sworn on 24 September 2012, a Human Resources Manager with the Australia/New Zealand Salon Professional section of Procter & Gamble. The parties made lengthy and detailed written and oral submissions.
While these proceedings were commenced by the filing of an application under s.46PO of the AHRC Act, it would seem that that was a reflection of the need under the rules of this Court for there to be a formal application so that there could also be an application in a case. There is, however, no confusion between the parties as to the nature of what is in issue before me today, which is an application under s.46PP of the Act. Section 46PP provides that:
(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 46PE 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.
Ms Lee has been employed by Procter & Gamble since 1999. She has worked as a financial analyst, senior cost analyst and plant finance manager. Since 2006 she has been at a level described as Band 3.
Relevantly, in April 2009 Ms Lee was offered a Band 3 role described as Finance Manager in the Salon Professional business unit Australia/New Zealand. She commenced work in this role in Sydney in December 2009.
Ms Lee reported to Mr Nihilani. She claimed that during this time she was unlawfully discriminated against on the ground of her sex, in particular by Mr Nihilani. Her contentions in that respect are detailed in her complaint to the Commission. In particular, she refers to a meeting with Mr Nihilani and a Human Resources representative of Procter & Gamble on 17 August 2011.
There is some difference in the evidence of the parties about the reasons for this meeting, the circumstances which led up to it and who made the relevant decisions, in particular in relation to Ms Lee’s role. In the claim she lodged with the Commission Ms Lee claimed that the August 2011 meeting was a “performance management discussion” during which she was advised that “due to ‘performance issues’ her role would be changed to a role focused on Stewardship” and her current position would be filled by the promotion of a member of her team, a Mr Ong. “Stewardship” is said to be a term used by Procter & Gamble to describe a task of ensuring that “each business unit is complying with laws, policies and procedures” that apply to its operation. Ms Lee claims that she “did not agree” to such a change in her role.
In contrast, Mr Warner’s evidence is that his understanding is that a decision was made by the leadership team that the Finance Manager role would be “restructured” in response to an unsuccessful internal audit, that the leadership team agreed to step up the stewardship function, that Mr Nihilani told Ms Lee about the restructure and that Mr Nihilani intended to move her to the new Stewardship Management role.
In any event Ms Lee did not agree. She claims that she viewed the new role as a demotion. It appears that she requested further information. She was provided with an “action plan” in mid-September. She did not accept it. Mr Warner says the offer remained open to her until mid-late October 2011, but that she elected to take four months leave commencing on 1 November 2011.
Mr Warner’s evidence is that at the time of these discussions, in particular on 6 October 2011 (as recorded in an email from another HR manager on 7 October 2011), Ms Lee was advised that there were not anticipated to be Band 3 roles in Australia in the next 12 months.
Ms Lee commenced four months of annual leave on 1 November 2011. She claimed that she took leave not only because she had accrued leave, but also because “she had been advised by her medical practitioner to take time off work due to work-related stress”. At the completion of that leave she took periods of sick leave from 1 March 2012 to 13 July 2012, providing medical certificates. Ms Lee claims that she was diagnosed by a psychiatrist to be suffering depression and work-related stress. Subsequently she applied for and received short-term disability benefits from her employer until 10 August 2012.
On 18 July 2012 Mr Warner wrote to Ms Lee notifying her that she had received short-term disability leave. In anticipation of her return to work in August 2012, he stated that there had been a recent reassessment and that no Band 3 roles were available in Australia or New Zealand for her at the time of her anticipated return to work. He raised several possible options, including extending her short-term disability leave, continuing to search for roles (whether at the same or different functions and levels), that she suggest roles to meet the company’s business needs, or a redundancy package. The letter stated that no conclusions had been reached, that they were seeking feedback and preferred to find her an alternative role, but that if they could not do so then the redundancy package would be an option.
Ms Lee advised a preference for a Band 3 financial manager position in Australia.
Subsequently, on 2 August 2012 Mr Warner advised Ms Lee that there was no current role available for her and that she could work from home when she returned to work until a conclusion was reached in relation to the options.
Ms Lee claimed she sought to return to the workplace. On 13 August 2012 she returned to work. As directed by Procter & Gamble she worked from home, but returned to the workplace on 20 August 2012. It appears from her claim that Ms Lee’s evidence is that she was not allocated particular tasks to do. She also was not allocated a particular position.
On 30 August 2012 Ms Lee was advised that she was being made redundant as there were no positions available and that her employment would cease on 30 September 2012.
Ms Lee claims that during her period of sick leave and on her return to work she was unlawfully discriminated against on the grounds of her disability, being depression and work-related stress.
As indicated Ms Lee applied to the Commission on 14 September 2012. She commenced these proceedings on 19 September 2012. In effect she seeks to restrain her employer from putting into effect the redundancy notice provided to her and to maintain what are said to be her rights as an employee to be provided with a meaningful position. The orders sought are opposed by the respondents.
It is not in dispute that the Court has power to make interim injunctions under s.46PP where there has been a complaint to the Commission. Nor it is in dispute that Ms Lee has the status to seek such an injunction (see s.46PP(2)). Such as injunction cannot be granted after a complaint has been withdrawn or terminated within the provisions of the Act (s.46PP(3)). The Court cannot as a condition of granting such an interim injunction require a person to give an undertaking as to damages.
It has been said that the decision as to whether or not to grant an injunction under s.46PP requires the Court to look at the background information and the evidence presented, and to determine what the status quo is and whether it should be preserved. Regard should also be had to the rights of the respondent (see Gardner v National Netball League Pty Ltd (2001) 182 ALR 408 at 410; [2001] FMCA 50).
The parties are in broad agreement as to the applicable test in relation to the grant of an interim injunction. In general terms Ms Lee contended that the court is to consider whether there is a genuine or serious question of fact to be tried, and that it must be satisfied “that a dispute exists which is capable of being conciliated by the Commission” that is “not fanciful or so lacking in merit that no reasonable Commission invested with the powers of [the Commission] would decline to entertain it” (see Beck v Leichhardt Municipal Council [2002] FMCA 331 at [16] per Raphael FM). It is also necessary to assess where the balance of convenience lies.
Counsel for the respondents referred generally to the general principles governing the grant of an interlocutory relief as stated by Mason ACJ in Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 at 153; [1986] HCA 58. His Honour stated that for such relief the applicant:
must show (1) that there is a serious question to be tried or that [the applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action [the applicant] will be held entitled to relief; (2) that [the applicant] will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
I have also had regard to the more recent clarification of the nature of the test for the grant of interlocutory relief (particularly the first limb of the test) in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 as discussed by Crennan J in Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth; Plaintiffs M169/10, M171/10, M173/10 and M175/10 v Minister for Immigration and Citizenship (2011) 85 ALJR 790; [2011] HCA 25. Such principles have been adopted in proceedings in which interlocutory injunctions have been sought in the Court’s human rights jurisdiction (see Dunne v Noonan [2009] FMCA 362).
I have also borne in mind that these considerations are not to be viewed in isolation from each other. As Woodward J stated in Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464 at 472; [1985] FCA 19:
…when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants’ case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it.
A number of issues were raised in relation to the scope of s.46PP and the circumstances to be taken into account. Counsel for the applicant submitted that an interim injunction may be more far-reaching than just maintaining the status quo because maintaining the rights of the parties may require some form of active intervention in the relationship of the parties. This may be so insofar as reliance is placed on s.46PP(1)(b). In addition, reference was made to the final orders that could be made by the Court in the context of an application under s.46PO of the AHRC Act after determination of a complaint by the Commission. The Court has very broad powers in that context if it is satisfied that there has been unlawful discrimination. It can also grant interim injunctions in that context. However this is not such a proceeding. The basis for an interim injunction under s.46PP is narrower than the broad discretion of the Court under s.46PO(4) in relation to substantive proceedings. It is also relevant to bear in mind the context in which a s.46PP injunction can be granted while a complaint is before the Commission. As Raphael FM stated in Beck (at [19]) “[the AHRC] Act is one intended to assist in the elimination of discriminatory conduct” and “should be interpreted benevolently”. However, for the purposes of s.46PP(1) it is critical to determine what the actual status quo was as it existed immediately before the complaint (see AB v NSW Minister for Educationand Training [2003] FMCA 16 and McIntosh v Australian Postal Corporation (2001) 140 IR 108; [2001] FCA 1012). As Raphael FM pointed out in AB (at [15]):
These injunctions exist to prevent rights from being taken away from persons who have made a complaint to [the Commission]. They do not exist to create rights.
On 10 September 2012 the second respondent confirmed that there were no suitable role opportunities in Finance and Accounting at Band 3 (the area in and level at which Ms Lee had most recently been working before her leave) either in Australia or Asia or globally.
Ms Lee submitted that prior to lodging her complaint with the Commission the status quo was that she was an employee of Procter & Gamble in dispute with her employer in relation to potential redundancy and the availability of other positions. She was attending for work, and claimed to be ready, willing and able to perform work within her skills, qualifications and training. This was said to be the status quo she seeks to maintain under s.46PP(1)(a) of the AHRC Act.
In this case, the status quo immediately before the complaint to the Commission was that Ms Lee was (and at the moment is) an employee of Procter & Gamble, classified as a Band 3 manager but without a current or substantive position. When she returned to work in August 2012 she was not given any role and she says she was not given any work to do.
This is not a case in which there is a particular position to which Ms Lee seeks to return. Rather, her situation is more akin to the unattached public servant considered in Sluggett v Department of Immigrationand Citizenship [2008] FMCA 735 (although that is not, of itself, a bar to the application).
The strength of Ms Lee’s case and whether there is a serious issue to be tried has to be considered in relation to her complaint to the Commission. In this context there are no pleadings to consider. Nor is there the sort of evidence before the Court that there would be in substantive proceedings. I bear in mind the distinction between pleadings and a complaint to the Commission. As Branson J pointed out in Commonwealth v Sex Discrimination Commissioner and Others (1998) 90 FCR 179; [1998] FCA 1607, a complaint ought not to be construed as a pleading (and see Dye v Commonwealth Securities Ltd (No. 2) (2010) 63 AILR 101; [2010] FCAFC 118 at [46]-[48]).
In her complaint to the Commission Ms Lee asserted that there were breaches of the Sex Discrimination Act and the Disability Discrimination Act. The complaint relies on a number of sections in each of those Acts. After detailed description of the background circumstances and attempts to resolve her complaint, the specific complaints are set out commencing at p.19 of the complaint.
In summary, with respect to the Sex Discrimination Act, Ms Lee claims that she was “treated less favourably on the ground of her sex”, required to work in an environment “where practices were imposed that had, or were likely to have, the effect of disadvantaging women” and replaced with a male manager. The acts of alleged unlawful discrimination are detailed, including Mr Nihalani’s failure to discuss her work and development plan (W&DP) before determining her performance rating or to raise performance issues with her before the meeting on 17 August 2011, his appraisal of her in that meeting, his alleged criticism of her for not completing work she claims she had completed, his alleged failure to give her an opportunity to remedy matters identified and his alleged communication that he wanted her out of her previous finance manager role and to move to stewardship.
Ms Lee asserted that during the August 2011 meeting her work performance was assessed by Mr Nihilani without prior warning and without any detail of what performance deficiencies were being relied on. In that context, she claims she was advised that as a result of such deficiencies and a performance appraisal rating of 3 (which is a low rating in terms of the performance ratings given to employees by Procter & Gamble), her role would be changed to “Stewardship”, and her then current role would be filled by the promotion of a male subordinate.
Ms Lee claimed that Mr Nihilani’s actions in giving her a low rating and demoting her to a role of lesser accountability and responsibility were in breach of the Performance Management Policy of Procter & Gamble and also were acts of unlawful discrimination on the ground of sex. She claimed that these acts had directly resulted in her being in the position of being threatened with redundancy.
In her complaint Ms Lee also asserted that Mr Nihilani excluded her from meetings, spoke to her in an (unexplained) inappropriate manner and that he did not fill roles reporting to her, that she had no pay increase because of the rating she received and that there was a breach of Procter & Gamble policies in her management.
The respondents submitted that the case advanced by Ms Lee did not demonstrate a serious question to be tried or, alternatively, that the weakness of the case as revealed in the complaint should be regarded as a matter militating against the grant of the injunction sought (see Bullock). It was contended that the case advanced by Ms Lee appeared slim at best, even accepting her complaints.
Ms Lee appears, at least primarily, to be relying on s.14(2) of the Sex Discrimination Act. Clearly, were the complaints made in pleadings in substantive proceedings there would be a need for further precision in the manner in which she seeks to identify how the conduct complained of amounted to discrimination on the ground of her sex. Nothing in her complaint to the Commission identifies any term or condition of her employment that was less favourable than another employee (s.14(2)(a)). While she complains of her treatment by Procter & Gamble and makes some assertions relevant to her access to benefits associated with employment and other detriment, there is a lack of detail or explanation as to how the asserted treatment is less favourable than that afforded to any other employee.
As was submitted for the respondents, even if the treatment complained of was shown to be comparatively unfavourable, nothing substantial has been advanced by Ms Lee to support the contention that it was by reason of her sex (other than the fact of her gender and the promotion of a male subordinate). While she asserted that practices were imposed which had the effect of “disadvantaging women”, the complaint does not identify such practices or how they had the effect or were likely to have the effect of disadvantaging women as against being practices which, in Ms Lee’s view, were disadvantageous to her.
It is apparent that Ms Lee disputes Mr Nihilani’s view of her work performance and his management of that issue. Such a difference of view, without more, would not constitute discrimination on the grounds of sex. Similarly the fact that a man was employed in Ms Lee’s former position would not, of itself, constitute discrimination on the grounds of her sex. That is not to say that such factors may not, in a particular case, form part of all the circumstances constituting discrimination within the Sex Discrimination Act.
Ms Lee submitted that an arguable case of a significant issue to be tried in relation to suggested breaches of the Sex Discrimination Act was identified. Notwithstanding the matters referred to above, I am satisfied that such an arguable case has been identified having regard to the fact that “[t]he threshold for a serious question to be tried is not particularly onerous” (Paras v Public Service Body Head of the Department of Infrastructure (2006) 152 IR 75; [2006] FCA 622 at [26] per Young J). The first limb of the test for an interlocutory injunction does not contemplate “some kind of prediction of the probability of the outcome of the trial; it simply obliges the Court, as a first step in considering the grant of interlocutory relief to be satisfied that there is a serious question to be tried in the principal proceeding and that the interim relief sought will go in aid of the vindication of some legal right asserted by the action” (Paras at [26] per Young J).
What is in issue is whether there is a serious question to be tried in the context of a complaint to the Commission. There is no principal proceeding in which legal rights are asserted as would be the case in s.46PO proceedings. However, having regard to the ultimate availability of such proceedings if the complaint is not resolved before the Commission, in one sense it could be said that the interim relief sought would, in a broad sense, go in aid of the vindication of some legal right that would be asserted by such action.
However insofar as it may be suggested that the serious question must relate to the grant of substantive relief that is sought in the action, there is no action in the sense of a pending substantive action in relation to which the Court has jurisdiction under s.46PO. Nevertheless, there exists a dispute which is capable of being conciliated in the Commission that “is not fanciful or so lacking in merit that no reasonable commission invested with the powers of [the Commission] would decline to entertain it” as referred to by Raphael FM in Beck (at [16]).
I do note, however, that insofar as Ms Lee sought to rely on the decision of Employment Services Australia Pty Ltd v Poniatowska (2010) 62 AILR 101-252; [2010] FCAFC 92 in support of the contention that the circumstances complained of could constitute sexual discrimination, the circumstances as revealed in the complaint in this case cannot be said to be on all fours with the circumstances in Poniatowska, which involved the termination of the employment of a female employee after she complained of sexual harassment. In Poniatowska the employer in effect dealt with the employee in question as the problem, and did not attempt to address the issues raised. The court was satisfied that a male employee would have been dealt with differently. There is not a direct analogy with the circumstances of this case, albeit it is not in dispute that a sexual discrimination claim could be raised in circumstances where the employment of a person was brought to an end or there was a redundancy.
It was submitted for the respondents that it was relevant that Ms Lee did not raise a complaint of sex discrimination or, indeed, a complaint of disability discrimination, with her employer. There are, however, often considerations which prevent applicants from raising such complaints. It may also be the case that the impact of the asserted conduct was not seen as apparent to Ms Lee until some later time. The absence of a complaint to her employer in terms of discrimination is not such as to suggest that there is no serious question to be tried in this context.
The respondents also submitted that Ms Lee faced the hurdle that aspects of the matter went back more than 12 months prior to the complaint. That fact is not itself an absolute bar. Rather, the Commission may terminate a complaint if a complaint is lodged more than 12 months after an alleged act of unlawful discrimination (s.46PH(1)(b) of the AHRC Act). Moreover there are more recent aspects to this complaint.
I have borne in mind that in the context of a complaint to the Commission, a claim will not necessarily be articulated in as clear a form as would not only be desirable but also necessary in the context of substantive proceedings. The issues raised by the respondents about the strength of Ms Lee’s claim have substance, but do not go so far as to lead me to the view that it cannot be said that Ms Lee has not met the threshold of a serious question to be tried. The complaint is detailed. It lists a number of categories of what are said to be acts within the Sex Discrimination Act. Some of those acts are capable of coming within the Sex Discrimination Act. The evidentiary issues and difficulties that may surround some of the claims were this to be a matter before the Court are apparent, but they are not such as to mean that there is no serious question to be tried.
I have had regard to the strength of Ms Lee’s case in the context of considering the balance of convenience. However, as the evidence presently stands, this is not a case in which it can be said that Ms Lee has a particularly strong case of sex discrimination. Hence the suggestion that an apparently strong claim may lead a Court to more readily grant an injunction when the balance of convenience is fairly even is not of assistance to Ms Lee.
Ms Lee also makes a disability discrimination complaint under the Disability Discrimination Act. She claims that Procter & Gamble engaged in direct discrimination, in that she was treated less favourably on the ground of her disability, or indirect discrimination by the use of out of date and disputed information on her performance, skills and achievements to determine whether she was suitable for alternative employment.
In the complaint to the Commission Ms Lee detailed what were said to be acts of alleged unlawful discrimination, including the advice to her while on sick leave (because of work-related stress) that there were no positions available to her and that if none were found one option was to make her redundant, what was said to be the use of outdated information to determine her suitability for an alternative position and an alleged refusal to update her information to consider her for suitable positions. She also relied on the fact that she received a lower bonus for the 2011/2012 financial year because of her need to take leave following what were said to be acts of Procter & Gamble and its employees and the lack of an annual pay increase after December 2011.
Ms Lee submitted that the arguability of this claim was demonstrated by analogy with Maxworthy v Shaw [2010] FMCA 1014 and Wiggins v Department of Defence (2006) 200 FLR 438; [2006] FMCA 800.
Compared to their submissions in relation to the claim of sex discrimination, the respondents did not take as much issue with the claim of disability discrimination, albeit it was submitted that the claim was slim at best. Insofar as it was suggested that there was no indication in the complaint that Procter & Gamble knew of Ms Lee’s illness before February 2012, there was an earlier mention of leave because of stress in correspondence. In any event, the main and substantive matters complained of were after February 2012.
Similarly, while there was no articulation of such a discrimination claim to Procter & Gamble before the complaint, that is not demonstrative of the absence of any substance in the claim.
In s.46PO proceedings the Court has “very strong” and wide powers (see Sheaves v AAPT Ltd [2004] FMCA 225 at [21]), including the power to grant damages, reinstatement and to require a respondent to pay back wages. Insofar as the respondents submitted that the matters of which Ms Lee complained were (if found substantiated) demonstrably matters likely to be remedied by an award of compensation or some order other than reinstatement, damages may well be an adequate remedy in relation to various kinds of loss that may be asserted, in particular economic loss.
This is not the usual context in which the adequacy of damages is considered. These proceedings are not part of substantive proceedings. The claims made by Ms Lee would appear to be such that she may intend, if it came to a court case, to raise a claim of loss that would be compensable by damages. Indeed, that was conceded to some respect in the course of her counsel’s oral submissions.
Moreover it is relevant in proceeding under s.46PP that the Court cannot require an undertaking as to damages in relation to the grant of, or as a condition of the grant of, an interim injunction under that section.
There is some difficulty in considering ultimate remedies in the context of proceedings of this nature because the precise claims and remedies sought by Ms Lee are not articulated in the complaint to the Commission in the way that they would be in substantive proceedings. Hence it is not appropriate at this stage to reach conclusions in relation to the appropriateness of a reinstatement order, for example.
However insofar as the respondents contended that it is necessary to establish a serious question that the circumstances are such that Ms Lee would ultimately obtain reinstatement, this to some extent overstates what has to be established. The possible available remedies may all be looked at in a general sense, but only insofar as is possible having regard to the context and nature of the complaint and the nature of the remedies that would, ultimately, be available. It cannot be said that it is necessary for the establishment of a serious question to be tried in this context that, ultimately, Ms Lee would obtain reinstatement. That cannot be determined at this stage. However, as conceded by the respondents, the possibility of ultimate reinstatement were Ms Lee to succeed in future proceedings under s.46PO of the AHRC Act is relevant. It cannot be ruled out in this instance. That is so notwithstanding the matters that would have to be established in order for reinstatement to be ordered.
The difference between the context of s.46PP and an application for interlocutory relief in substantive proceedings and the impact on issues such as the adequacy of damages (see for example Lamond v Secretary, Department of Infrastructure and Transport (2011) 206 IR 368; [2011] FMC 165 at [40]) was not developed further in submissions. What is clear is that there are some practical difficulties in assessing, other than in very broad terms, the adequacy of damages in the absence of clear specification of the loss claimed and remedies sought.
In any event, I am satisfied that there is a serious question to be tried in relation to the claim of disability discrimination in the context of considering a complaint to the Commission. However the limited evidence before the Court is not such that the Court can be satisfied that this is a strong case. This is not a case in which the strength of an applicant’s case would weigh significantly in favour of the balance of convenience being towards the grant of an injunction, notwithstanding the weakness of other factors in that respect.It is apparent that were this matter before the Court under s.46PO, there would be a serious dispute in relation to elements of Ms Lee’s claim. It is not possible in these proceedings to reach a view as to the relative strength of the cases of the respective parties on such issues. Those matters would be matters for any ultimate hearing.
The particular circumstances in which s.46PP interim injunctions are sought and the nature of the evidence relied on may mean that it may be difficult to find that the strength of the applicant’s case should weigh heavily in the applicant’s favour in relation to the balance of convenience (see Harcourt v BHP Billiton Iron Ore Pty Ltd (No 2) [2008] FMCA 1100). That is not to say that this could not be the case in particular circumstances. However on the complaint and evidence before the Court this is not a case in which I would be inclined to grant the injunction sought even if the balance of convenience was “fairly even” in the sense considered in Bullock.
When one turns to the balance of convenience, the court must be satisfied that the balance of convenience and the interests of justice favour the grant of interim relief, bearing in mind that the issues are not considered in isolation and that the strength or weakness of the applicant’s claim will have a bearing on what is required by way of the balance of convenience (Bullock at 472).
The purpose of an injunction in this context is to maintain the status quo or the rights of the applicant. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 Gleeson CJ referred (at [12]) to “the need to prevent the practical destruction” of a right pursued in substantive proceedings. In this case what is in issue in relation to preserving the status quo is any need to prevent the practical destruction of a right before there has been an opportunity to have the complaint conciliated by the Commission.
Ms Lee relied on a number of cases in support of the proposition that the balance of convenience was in her favour. It is, however, a matter of the circumstances of the particular case. There is no direct analogy with other cases cited. Gardner (in which a s.46PP injunction was granted) does make it clear that an interim injunction of this nature can and will be granted in appropriate circumstances. However the circumstances in Gardner were quite different. A pregnant netballer wanted to play netball for the rest of the season. She claimed in that context that damages were not an adequate remedy and that the balance of convenience favoured the grant of an injunction. It was not an employment context such as in this case and there were not comparable issues about the adequacy of damages and other financial issues.
Insofar as reliance was placed on Lamond, in which an interim injunction was granted in substantive proceedings under the Fair Work Act2009 (Cth), this was a different context. In Lamond the applicant was told that there was no position for her, akin to this case. However, unlike this case and quite significantly different, the applicant in Lamond was told that she was to be terminated for the unsatisfactory performance of her duties. That was a factor of some significance to the balance of convenience that is not present in this case. In Lamond there was a risk of significant prejudice in relation to any future employment, because the applicant would have to disclose that she had been dismissed because of unsatisfactory performance of her duties.
I note that in Lamond Neville FM referred to the traditional reluctance of the courts to make orders amounting to orders for performance of contracts of employment and to the issue of whether special circumstances were required, albeit in this context there is a statutory basis for the injunction sought. His Honour also pointed out that reasonableness requires that an employer should have explored with an applicant any available alternatives before taking the ultimate step of dismissal. The respondents may well say that that occurred in this case. Certainly there is evidence of communication between the parties in relation to some such exploration, albeit there may be a difference of opinion in relation to the nature and context in which that occurred and what in fact occurred. There is, however, some evidence of exploration of available alternatives.
Paras also involved a proposed summary dismissal for serious misconduct (not a redundancy). Unlike in this case, in Paras the applicant sought to maintain statutory rights and protections, including rights to access a public service review process mechanism as a prerequisite to summary dismissal. Ms Lee submitted that Paras was relevant because she was similarly denied procedural fairness in her dealings with Mr Nihalani and that this was the starting point in the process leading to her redundancy. There is, as indicated, a dispute in relation to whether that was the case and as to whether the policies which she complains were not applied were, in fact, applicable in that context.
In any event, this is not a case in which Ms Lee has been deprived of rights to have a termination reviewed or of some statutory rights or where she faces some irreparable reputational or other harm from summary dismissal such that were her employment brought to an end but she was ultimately successful (whether in the Federal Court or this Court) in some proceedings under s.46PO, damages and other remedies available in such a context could not provide an adequate remedy.
It is the case that an injunction under s.46PP is not normally of as long duration as an interim injunction that would be sought incidental to substantive Court proceedings. It is only intended to operate until seven days after termination of the complaint. Ms Lee has sought expedition before the Commission. The respondents have agreed to cooperate in seeking expedition. I am told from the bar table that the Commission has offered an early conciliation at some time in the next two weeks, although it does not appear that a date has been set.
Nevertheless, it cannot be said that there is a specific end date for the proposed injunction. Further, while it is of relatively short duration in one sense, all injunctions granted under s.46PP must be said to be of that nature. The cooperation of the parties and the indication that there would be some expedition in the Commission are such that the length of the injunction is not a factor that militates against the balance of convenience being in favour of Ms Lee. However it cannot be said that it is positively in favour of Ms Lee.
Moreover, it would still be the case that if the injunction were to be granted, should it turn out that Ms Lee does not make out her case, Procter & Gamble would have been forced to employ her for a period of time that it does not want to employ her for and in respect of which it would have to pay moneys that it could not recover (see Mifsud v Skye Children’s Co-Operative Ltd (2007) 164 IR 218; [2007] FMCA 914 at [6] per Burchardt FM). On the other hand, if there was a s.46PO action after a termination of a complaint in which Ms Lee ultimately succeeded, then all her economic loss could be reimbursed and she could be reinstated. Those factors are relevant to the balance of convenience and weigh against the grant of the injunctions sought.
Insofar as there was an argument in relation to delay on the part of Ms Lee in complaining of the conduct, that is not a factor that would weigh against the grant of an injunction in circumstances where part of the claimed discrimination was said to have resulted in a redundancy of which she was only informed on 31 August 2012, notwithstanding that it was previously canvassed as an ultimate possible alternative. Thereafter, she acted reasonably and promptly. Delay is not a factor that tells against the grant of an injunction on the basis of the balance of convenience.
However it is relevant to have regard to Ms Lee’s personal circumstances. It is the case that she has what in the present day may be regarded as a relatively long employment with Procter & Gamble of some thirteen and a half years. It is the only employment she has had since university. Ms Lee is, however, still young and she is skilled. There is no suggestion that her career skills are so specialised that she would be disadvantaged in the labour market. This is not a factor of significant favour to Ms Lee in terms of the balance of convenience.
Insofar as reliance was placed by Ms Lee on the prospect of the loss of long-term employment opportunities with Procter & Gamble, bearing in mind the context of a s.46PP injunction, if there are adverse economic consequences from any redundancy, damages would likely be an adequate remedy. In any event, the long term consequences cannot be said to be of immediate direct relevance in the context of an injunction that seeks to maintain the status quo for a short period of time while a complaint is before the Commission. I have had regard to Ms Lee’s contentions in this respect but do not see them as of particular significance having regard to the overall circumstances.
Ms Lee also submitted that the injunction was necessary to protect her rights to work and to use her skills to the benefit of her employer and that that would not be to the detriment of her employer because she was ready, willing and able to work. However, as I have indicated, she has not had a specific position with Procter & Gamble since late 2011. The status quo is that she has a role, but no position. She has not used her skills since that time, albeit she returned to work for a brief period in August 2012. Procter & Gamble would have to pay Ms Lee in relation to a position which it contends does not exist.
It is relevant to have regard to the reality of the employment situation to which an applicant would be returning. There is said to be no specific position to which Ms Lee is entitled to return. There is no disagreement about that. There was no evidence from Ms Lee to suggest that there is, in fact, a position available, albeit there is evidence to suggest that there may have been some movement within the company, in that there have been at least two position changes at the relevant level over the last 12 months. However what is in issue is the immediate future and an immediate maintenance of rights or maintenance of the status quo.
Insofar as Ms Lee suggests that an injunction is necessary to maintain her rights so that she does not become unskilled, the injunction sought is for a short term. She was not exercising her skills immediately prior to her application and complaint in any meaningful sense (on her own evidence). This is not a factor of particular relevance. There is nothing before the Court to suggest that there is something in the particular nature of the skills that Ms Lee has and exercises that will mean that there will be a significant detriment to her if she does not have the opportunity to remain in the employment of Procter & Gamble through the immediate future.
Procter & Gamble concedes, and I accept, that the employment relationship has not broken down (in contrast to the position in McIntosh). However the status quo is a situation where Ms Lee has a role of Band 3 manager but there is no position available. She has not been in such a position since late 2011. In these circumstances the practical effect of the first order sought would be to require Procter & Gamble to continue to pay a salary to Ms Lee in circumstances where Procter & Gamble says there is no current role for her. This is a factor that, in terms of the balance of convenience, weighs against the grant of an injunction. Unlike Beck, this is not a situation in which an applicant is being dismissed from an existing role and could remain in such existing role pending determination of the complaint. This is not an insignificant distinction.
The respondents suggested that it was relevant that in McIntosh Heerey J had taken the view that it was not reasonable that an applicant continue in employment on the basis that she did not have to attend to work (albeit his Honour made those remarks in the context of considering a situation in which a relationship had broken down). It is not clear that this amounted to a general statement that in all circumstances it would be unreasonable that an applicant be continued in employment on the basis that he or she not have to attend for work. However the fact that that may be the practical consequence of an injunction in a particular case is relevant, notwithstanding that Ms Lee is ready and willing to return to work and no issue is raised in relation to her ability to do so. The practical consequence in this case appears to be that as there is no position available for her she may be continued in employment on the basis that she not have to attend for work.
Regard can be had to the practicability and impact of reinstatement. Notwithstanding the apparent size of Procter & Gamble, there may be some financial disadvantage to the company. There can be no undertaking as to damages. Were Ms Lee ultimately to be unsuccessful in any claim under s.46PO based on the allegations of discrimination in question, Procter & Gamble would not be able to recover any amounts paid to her for the duration of any s.46PP injunction.
While more directly relevant to the second order sought, there is also some evidence from Mr Warner that the parent company of Procter & Gamble is currently undergoing a period of global rationalisation and that some 5,700 non-manufacturing jobs are to be eliminated, that 1,600 jobs were cut in the last financial year and that some 4,100 jobs are to be cut in the current financial year. This is relevant to the consideration of the available positions in the organisation in terms of the practicality and reasonableness of the order sought and whether there would be a position at an appropriate level and skill set for Ms Lee were she to return to work in circumstances where she has not occupied a particular role since late 2011. There is evidence that there are currently only three Band 3 positions in Ms Lee’s former business unit (only one of which is the area of finance) and only three Band 3 finance and accounting roles in Australia.
While the strength of this factor is reduced in the context of a large employer, I accept that requiring an employer to have an additional employee surplus to requirements in the workplace is a consideration which weighs against the grant of an injunction (see Sheaves and also Sluggett).
Having regard to all of the circumstances, while the absence of an available role for Ms Lee is not an insurmountable obstacle to the grant of an injunction, factors in relation to the practicability and impact of requiring Procter & Gamble to maintain the employment of Ms Lee weigh against the grant of an interim injunction.
Insofar as Ms Lee claimed that it was relevant that Procter & Gamble did not adhere to its own performance management policies, the respondent took issue in relation to which policies were actually relevant in the particular circumstances as well as in relation to whether there had been a failure to comply with them. Although I acknowledge that Ms Lee claimed that such matters had a direct causal link to her present position, I cannot reach a clear conclusion in relation to the weight to be given to such claims in these circumstances.
Ms Lee contended that it was relevant that she has had a variety of roles with Procter & Gamble and that she would be able to progress through Procter & Gamble’s management structure without external competition. She claims she would lose these opportunities should her employment cease and that damages would not be an adequate remedy for such lost opportunities. Again, I note the nature of the injunction sought and the range of remedies available to compensate her if she were to ultimately succeed in the s.46PO proceedings. Damages in that context would appear to be an adequate remedy for any economic loss that Ms Lee was able to establish in that respect. Beyond this I note the availability of a broad range of remedies including, in particular, reinstatement.
Contrary to the submission for Ms Lee, I also consider that it is relevant to have regard, to some extent, to the fact that Ms Lee will receive a termination payment on redundancy. It is relevant to have regard to an applicant’s financial circumstances in this context. This is not a case where the redundancy of Ms Lee would mean that she was in dire financial circumstances and hence unable to maintain any complaint before the Commission. Part of the termination payment to which she is said to be entitled includes a payment based on redundancy that is in addition to her statutory entitlements. The significant amount of money that she would receive means that Ms Lee would not be financially disadvantaged for the purpose of conducting the conciliation. In that sense her financial circumstances do not support the grant of an injunction.
One particular issue was said to loom large in Ms Lee’s contentions. It relates to the fact that as an employee of Procter & Gamble she is a member of a defined benefits superannuation scheme. Should Ms Lee’s employment be terminated it is said that she will not be able to remain a member of this superannuation fund. It is claimed that she will suffer a substantial loss. I note, in passing, that such substantial loss would appear to be a financial loss and as such, insofar as it was recoverable, it would appear that damages would be an adequate remedy in any ultimate proceedings. This is a factor which would tell against this being a matter in favour of Ms Lee.
Ms Lee also claimed she would suffer a loss of $1.2 million in the event that she was made redundant. That claim is based, it would appear, on the superannuation payment she would expect to receive at age 65. She is a comparatively young woman, having been in employment for thirteen and a half years since leaving university. This claim does not take into account the possibility of future alternative employment at a similar rate of salary and with the benefit of other superannuation contributions that would be required. I cannot be satisfied that the amount claimed represents Ms Lee’s likely actual superannuation detriment. In any event, even if it is assumed that such claims are correct, such loss (if recoverable) may be remedied by an order for compensation in any s.46PO proceedings.
Counsel for Ms Lee also raised the issue of her wish to maintain her right to participate in the present defined benefits superannuation fund in circumstances where the fund has been closed to new members, so that if she were made redundant and then in the process of conciliation before the Commission there was an agreement reached that she be reinstated, she would not be able to re-enter the fund but only a less advantageous accumulation fund.
Mr Warner’s evidence is that he made enquiries of the superannuation fund and received the advice that, in principle, it was feasible to reinstate a member to the fund. Ms Lee says that this could only be done if the court made such an order. The respondents agree that this is one way in which there could be reinstatement. In other words, it appears to be agreed between the parties that the Court could order such reinstatement to the superannuation fund were there to be a s.46PO action. For example, the Court could determine that an appropriate order was reinstatement and that such an additional order about superannuation would be a necessary incident to full reinstatement of Ms Lee.
Insofar as this amounts to a claim that Ms Lee will, ultimately, lose a significant economic right if the injunction is not granted because of the difference between a defined benefit fund and an accumulation fund, if that is a recoverable loss, it is an economic loss. If it were to be recoverable, it could be rectified by an award of damages if and when any complaint was made out in subsequent legal proceedings.
In these circumstances, the possibility that there would be some disincentive to Ms Lee to accept any offer of reinstatement by Procter & Gamble in the context of conciliation before the Commission is not a factor which weighs in any significant respect in favour of Ms Lee. In Sluggett there was a claim that may be seen as comparable. The applicant in Sluggett contended that she was entitled to receive a disability payment if considered to be on long service leave, but if she was made redundant, as was contemplated, she would lose the right to receive the payment. She contended, as Ms Lee does in this case, that if a s.46PP injunction was not granted she would lose a significant economic right. However in that case, as in this case, if the injunction sought by the applicant had been made, the employer would have had to provide benefits and support in respect of an employment position which did not exist and where there had been a redundancy process, which from the respondent’s perspective, included an endeavour to find an alternative posting for the applicant.
In Sluggett, Brown FM was of the view that any rights lost to the applicant as a result of either any illegality in the employer’s conduct or in the redundancy process could be rectified by an award of damages or, if appropriate, an award for reinstatement, if and when any such complaint was made out. The same may be said in this case.
Insofar as the respondents made submissions, albeit in what might be described as carefully worded terms about whether reinstatement at conciliation was a realistic expectation, it is not appropriate to draw any inference in that respect on the evidence before the Court, having regard to the fact that there is only a limited articulation of what Ms Lee would seek in such proceedings and that any conciliation would not be in isolation but in the context of claims made in relation to sex discrimination and disability discrimination.
However, relevantly, the claim about superannuation must be seen in the context of the ultimate availability of remedies which could rectify any such detriment to Ms Lee and the fact that no immediate financial difficulty would be faced by Ms Lee that would prevent her from participating in any Commission process in circumstances where there would not be an immediately available role available to her were she to remain in the employment of the respondent.
I note in passing that it would not be a legitimate consideration if an injunction of this nature were sought only to give Ms Lee some leverage or bargaining advantage in relation to conciliation. However in circumstances where there is no suggestion that there has been a breakdown in the working relationship between the parties (cf McIntosh) the present application is not such that it can be said to be of that nature.
The difficulty that faces Ms Lee in this case is that having regard to all of the circumstances including, insofar as it can be assessed, the strength of her claims, the availability of damages as an adequate remedy, the broad range of remedies (including, in particular, reinstatement) and the parties’ acceptance that any disadvantage to Ms Lee in relation to membership of a defined benefit super fund could be addressed by final orders of this Court in substantive proceedings, I am of the view that the balance of convenience does not favour the grant of the injunction that is sought under s.46PP of the Act (see Mifsud and Harcourt in relation to the relevance of overall remedies ultimately available). I am not persuaded that the balance of convenience is in favour of the first order sought by Ms Lee.
Nor does the balance of convenience favour the order sought directing the respondent to provide Ms Lee with a position agreeable to her either within Australia or Asia at the Band 3 level commensurate with her skills, qualification and experience and no reporting lines to Mr Nihilani. Indeed, even if I were satisfied that an injunction of the nature of the first proposed order sought was appropriate, I would not be satisfied that it was necessary or appropriate to maintain the status quo or Ms Lee’s rights to make an order of this width in relation to a position agreeable to her or that it was practicable to do so.
It also follows that I am not persuaded that an interim injunction should be made in relation to the second respondent preventing her from taking any steps to process or otherwise proceed with the planned redundancy of Ms Lee in circumstances where I am not persuaded that such an injunction should be made in relation to Procter & Gamble.
The application in a case should be dismissed. It appears that because an application has had to be filed, it would also be appropriate as a matter of form to dismiss the application. I will also hear the parties in relation to costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 7 November 2012
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