Masters v Rail Corporation New South Wales

[2007] NSWADT 45

CITATION:	Masters v Rail Corporation New South Wales [2007] NSWADT 45
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rod Masters FIRST RESPONDENT Rail Corporation New South Wales SECOND RESPONDENT Ian Hill
FILE NUMBER:	071020
HEARING DATES:	23/02/2007
SUBMISSIONS CLOSED:	23 February 2007
DATE OF DECISION:	27 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Interim Order
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Fonua v BHP Company Limited (1994) EOC 92-605 NZ v NSW Land and Housing Corporation [2006] NSWADT 126 Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR 643 Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305 White v University of Sydney (1992) EOC 92-462 Williamson v Director General, Department of Transport [2000] NSWADT 165
REPRESENTATION:	APPLICANT A Slevin, counsel RESPONDENT J Nand, solicitor
ORDERS:	Ian Hill, General Manager, Train Crewing, take no disciplinary action against the applicant arising from disciplinary investigations commenced on 28 September 2006, 8 November 2006 and 15 November 2006 pending final determination of the matters the subject of the complaint in Anti-Discrimination Board reference number 2006/1067.

Introduction

1 Mr Masters is a 51 year old man who has worked for RailCorp or its predecessors since 1971. He is employed as a Team Leader, Train Crew Assignment Centre (TCAC). He has applied to the Tribunal for an interim order to prevent his employer from taking disciplinary action against him. In March 2006 he was asked by lawyers representing a fellow employee, Ms Kim Hunt, to give evidence in proceedings relating to a complaint of discrimination against RailCorp. He gave evidence on 30 May 2006. Since that time, Mr Masters has been the subject of three separate disciplinary investigations, but no disciplinary action has yet been taken. He says that those investigations were undertaken because he gave evidence in Ms Hunt’s case. Mr Masters complained to the Anti-Discrimination Board on 18 December 2006 that he had been victimised by RailCorp.

2 The three investigations commenced after Mr Masters gave evidence before the Tribunal. Those investigations relate to the following allegations:

(a) sharing confidential information with another employee during two interviews conducted on 12 December 2005 and 27 March 2006 as part of the recruitment and selection process for a position ... Specifically, it was alleged that Mr Masters provided details regarding the performance of an applicant at those interviews;

(b) that Mr Masters failed to conduct regular graffiti inspections of the TCAC toilets as required under a lawful direction and that he falsely recorded that he had conducted certain inspections when he had not done so; and

(c) that Mr Masters allowed alcohol to be present on RailCorp premises during a farewell function for another employee.

3 The investigations in relation to the allegations in (a) and (c) have reached the point where RailCorp has formed a preliminary view that Mr Masters should be reprimanded and participate in various activities such as ethics training and counselling. RailCorp has invited Mr Masters to respond to these preliminary views before coming to a final decision. In relation to the investigation in relation to the allegation in (b), the investigation report has been finalised and the matter is awaiting referral to the Disciplinary Review Panel for recommendation on penalty. Ms Nand, representing RailCorp, said that that matter had also been referred to the Independent Commissioner Against Corruption because it involved an allegation of fraudulent conduct.

Tribunal’s power to make interim orders

4 The Tribunal has power to make an interim order pursuant to s 105(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act).

(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

5 Section 105 gives the Tribunal an unfettered discretion to make an interim order for certain purposes. In this case the purpose is to preserve the status quo in relation to disciplinary action. The current situation is that no disciplinary action has been taken against Mr Masters. This application seeks to preserve that position.

6 There is no guidance in the AD Act as to how the discretion in s 105 should be exercised. Principles in relation to the granting of interlocutory orders in other contexts are relevant. The classic statement of the law in relation to the granting of interlocutory orders by courts was set out by Mason CJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148:

[I]n order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff 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 plaintiff will be held entitled to relief; (2) that he 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.

7 Two questions have arisen in the context of anti-discrimination complaints from this formulation of the test. Those issues are first, whether it is necessary for an applicant to make out a prima facie case or merely to demonstrate that there is a serious question to be tried. Secondly, whether “irreparable injury” is a separate requirement or merely an aspect of the balance of convenience. There are few reported cases in which the Tribunal or its predecessor, the Equal Opportunity Tribunal (EOT), has considered applications for interim orders. In Fonua v BHP Company Limited (1994) EOC 92-605, the EOT took the view that it should, subject to any necessary qualifications, follow the principles in injunction applications under the general law. The Tribunal in concluded that the correct test was whether there is a “serious question to be tried” and whether, on the balance of convenience, an injunction should be granted. The Tribunal added a third factor, “either as a consideration bearing upon the assessment of the balance of convenience or, as Mason ACJ suggested in Castlemaine Tooheys Ltd v State of South Australia, as an independent criterion, and that is whether the complainant, to use the words of Mason ACJ “will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted.” The Tribunal emphasised that these considerations were not exhaustive of the matters that may be taken into account.

8 In White v University of Sydney (1992) EOC 92-462 Graham J applied a two limbed test namely whether there is a real issue to be tried and if so, where the balance of convenience lay. In Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR 643, the High Court considered the exercise by the Federal Court of its powers to make “orders of such kinds, including interlocutory orders ... as the court thinks appropriate”: Federal Court of Australia Act 1976 (Cth), s 23. The occasion for the exercise of the power in that case arose from the assumption that one of the reasons for the restructure of the Patrick Group was to dismiss the union workforce. The High Court held that:

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are needed to ensure the effectiveness of the jurisdiction invoked: Tait v R (1962) 108 CLR 620.

9 A similar test appears in s 60 of the Administrative Decisions Tribunal Act 1997 in relation to applications to “stay” a reviewable decision. Such orders may only be made “to secure the effectiveness of the determination of the application”. In Williamson v Director General, Department of Transport [2000] NSWADT 165 (17 November 2000) the Tribunal held that the applicant would need to establish that he or she would suffer “irreparable loss” if a stay were not granted.

10 Mr Slevin, representing Mr Masters, submitted that because the dispute between Mr Masters and RailCorp came closer to a public law dispute than a private law dispute, securing the effectiveness of the proceedings was more important than achieving fairness between the parties (the balance of convenience test). He said that the principles relating to whether there was a real question to be tried and the balance of convenience were relevant to applications for interim orders where the matter in dispute could be described as a “private law” matter between the parties. However, where the matter in dispute was closer to the public law end of the spectrum, he says the principles are different. The Full Court of the NSW Industrial Relations Commission made this point in relation to industrial disputes under Chapter 3 of the Industrial Relations Act 1996 in Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305 at [36]:

While we agree that the test formulated in Castlemaine Tooheys ...offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals

11 Mr Slevin submitted that the current dispute comes closer to the public law end of the spectrum so that the factors set out in Castlemaine Tooheys were less relevant. I do not agree with that characterisation of the complaint. Although RailCorp is a government agency, the dispute is essentially a private one between Mr Masters and his employer. It is no different from a dispute between an employee and a private sector employer. In the language of the NSW Industrial Relations Commission, it is comparable to an “isolated ordinary unfair dismissal case”.

12 There is no requirement in s 105 of the AD Act, that an interim order should only be granted where it is necessary to secure the effectiveness of the proceedings, nor should such a requirement be implied. I agree with the observation of the Tribunal in NZ v NSW Land and Housing Corporation [2006] NSWADT 126 that s 105 is not subject to any limitation which is not strictly required by the language and purpose of the statute conferring the power to make interim orders: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]. In my view, any damage that the applicant may suffer, irreparable or otherwise, is to be weighed by the Tribunal when determining where the balance of convenience lies.

Real issue to be tried

13 At a hearing in relation to this complaint, Mr Masters would have to prove, on the balance of probabilities, that RailCorp’s conduct towards him was in breach of s 50 of the AD Act. That provision states that:

(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

14 Mr Masters has alleged that he has been subjected to a series of detriments within the meaning of that term in s 50. RailCorp did not dispute that the investigation of allegations of misconduct constitutes a detriment. There is also no dispute that, as required by s 50(1)(b), Mr Masters gave evidence in proceedings brought by Ms Kim Hunt under the AD Act. The only element of s 50 about which I need to be satisfied that there is a “real issue to be tried” is whether RailCorp’s conduct towards Mr Masters him was “on the ground of” him having given evidence before the Tribunal in Ms Hunt’s complaint.

15 Ms Nand submitted that Mr Masters would be unlikely to be able to prove that RailCorp’s conduct was “on the ground” of him having given evidence in Ms Hunt’s complaint. First, she said that the investigations were all commenced as a result of complaints from employees. Secondly, under RailCorp’s Discipline Policy, managers are responsible for ensuring that all potential breaches of the Code of Workplace Standards or Safeworking practices are investigated. Finally, Ms Nand said that Mr Masters was reprimanded in 1998 for inappropriate access to the internet. She said that that made it more likely that the current investigations were genuine.

16 Despite Ms Nand’s submissions, I am satisfied that there is a real issue to be tried. The proximity of the investigations to the giving of the evidence, the number of investigations and the fact that disciplinary action has only been taken against Mr Masters once before, despite a career spanning more than 35 years, supports that finding.

Balance of convenience

17 Ms Nand submitted that there is a public interest in ensuring that allegations of misconduct are investigated and finalised expeditiously. She said that if an interim order were granted, the disciplinary process would potentially be put on hold for a considerable period of time.

18 Mr Selvin submitted that Mr Masters’ reputation would suffer if an interim order is not granted and that his job will be less secure because of the possibility that he will be dismissed as a result of the investigation into the allegations in (b) at [2] above. According to Mr Slevin, the effectiveness of the Anti-Discrimination Board’s conciliation procedures will be diminished if the status quo is not maintained. That is because once disciplinary action is imposed, the damage is done and, even if those actions are withdrawn, Mr Masters’ reputation will still be affected and his security of employment weakened. It will also be more difficult for the parties to resolve the complaint if disciplinary action has already been imposed or is imminent.

19 Ms Nand submitted that RailCorp’s preliminary view was that Mr Masters should merely be reprimanded in relation to the allegations listed at (a) and (c) in [2] above. She said that that penalty is at the bottom end of the spectrum of available sanctions and could easily be remedied if the parties agreed to do so as a result of conciliation at the Anti-Discrimination Board or if the Tribunal ultimately found that RailCorp had victimised Mr Masters. According to Ms Nand, because the reprimand would be in writing, and a copy would be put on Mr Masters’ file, it could be removed if required. In relation to the investigation listed at (b) at [2] above, Ms Nand said any damage that Mr Masters may suffer is purely speculative because no preliminary finding has yet been made in relation to that allegation.

20 I am satisfied that the balance of convenience lies with Mr Masters. His interests in testing his claim that he has been victimised, before any disciplinary sanction is imposed, is greater than the public interest in having the disciplinary process finalised expeditiously.

Appropriate order

21 The order requested by Mr Masters was in the following terms:

The respondent’s General Manager, Train Crewing, take no disciplinary action against the applicant arising from disciplinary investigations commenced on 28 September 2006, 8 November 2006 and 15 November 2006 pending final determination of the matters the subject of the complaint in Anti-Discrimination Board reference number 2006/1067.

22 The only change that needs to be made to this form of the order is to ensure that it is addressed to the respondent to the complaint and not to an individual who is not a party to the proceedings. Consequently, I make the following order:

Ian Hill, General Manager, Train Crewing, take no disciplinary action against the applicant arising from disciplinary investigations commenced on 28 September 2006, 8 November 2006 and 15 November 2006 pending final determination of the matters the subject of the complaint in Anti-Discrimination Board reference number 2006/1067.