McAllan v National Prescribing Service trading as NPS Medicinewise
[2017] FCCA 3151
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCALLAN v NATIONAL PRESCRIBING SERVICE T/AS NPS MEDICINEWISE | [2017] FCCA 3151 |
| Catchwords: INDUSTRIAL LAW – Interlocutory application seeking to restrain respondent from action or threats to terminate employment and reinstatement to full-time position until determination of claims of adverse action under the Fair Work Act 2009 (Cth) – application refused. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 545 Federal Circuit Court of Australia Act 1999 (Cth), s.15 |
| Cases cited: Australian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (2000) 100 IR 383; [2000] FCA 627 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185; [2016] FCA 1582 Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 |
| Applicant: | JULIAN MCALLAN |
| Respondent: | NATIONAL PRESCRIBING SERVICE T/AS NPS MEDICINEWISE |
| File Number: | SYG 2156 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 31 August 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Manstead |
| Solicitors for the Respondent: | Minter Ellison Lawyers |
ORDERS
The application in a case filed on 22 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2156 of 2017
| JULIAN MCALLAN |
Applicant
And
| NATIONAL PRESCRIBING SERVICE T/AS NPS MEDICINEWISE |
Respondent
REASONS FOR JUDGMENT
These Proceedings
In the principal proceedings the Applicant, Mr McAllan, alleges that the Respondent, National Prescribing Service t/as NPS Medicinewise (NPS), contravened s.340(1) of the Fair Work Act 2009 (Cth) (the FW Act). He seeks reinstatement, compensation and an injunction.
By application in a case, the Applicant sought the following interlocutory orders:
1. That the respondent cease and desist from any further action, or threats of action, to terminate his employment until proceedings in matter SYG2156/2017 in the Federal Circuit Court are concluded.
2. That the respondent reinstate the applicant’s full-time position until proceedings in matter SYG2156/2017 in the Federal Circuit Court are concluded.
In his Statement of Claim (the SoC) Mr McAllan alleges that NPS took listed adverse actions against him “after [he] exercised a workplace right”. In paragraph 2 he asserted that he had a workplace right within s.341(1)(a) of the FW Act, being “entitled to the benefit under the workplace instrument of the Work Health and Safety Act NSW 2011 (WHS Act)”.
It is pleaded in paragraph 3 that:
After the respondent failed to exercise with due diligence their obligation under section 19 of the WHS Act, ie:
‘The person conducting a business or undertaking (PCBU) has a primary duty of care to ensure workers and others at the workplace are not exposed to a health and safety risks (sic).
the applicant was forced to exercise his obligation under section 28 of the WHS Act, ie:
‘A worker must, while at work take reasonable care for their own health and safety.’
by vacating the office environment that comprised a daily ongoing health and safety risk to the applicant and insisting on working from home until the health and safety risk had been removed.
The SoC contains three allegations of adverse action by NPS after Mr McAllan exercised the workplace right referred to above. The asserted actions are pleaded as follows:
4. First adverse action: The respondent changed the applicant’s job to his disadvantage
After the applicant exercised his workplace right as described in paragraph 1 above, the respondent ultimately reduced the applicant’s work hours by 60%:
a. against his will
b. contrary to ‘suitable duties’ as defined in his certificate of capacity
c. while his WorkCover claim process was underway, contrary to State Insurance Regulatory Authority (SIRA) regulations and direct instructions from SIRA, and
d. contrary to a previously given assurance to support the applicant through the claim process, on which assurance the applicant’s conditional acceptance of the proposed reduced work hours was initially predicated, so that his significantly reduced income could be adequately supplemented to allow him to continue to meet his basic living expenses, leaving the respondent (sic) unable to meet these expenses
e. in contravention of section 340(1)(a)(ii) of the Fair Work Act, ie:
(1) A person must not take adverse action against another person:
(a) because the other person:
(ii) has, or has not, exercised a workplace right.
and in contravention of section 342 of the Fair Work Act, ie:
An adverse action is taken by:
1. an employer against an employee if the employer
(c) alters the position of the employee to the employee’s prejudice.
5. Second adverse action: The respondent has repeatedly threatened to dismiss the applicant unless he accepted the first adverse action in paragraph 4 above
After the applicant exercised his workplace right as described in paragraph 2 above and had refused to comply with the respondent’s first adverse action described in paragraph 4 above, the respondent made repeated threats to terminate the applicant’s position if he did not accept the 60% reduction in work hours, in contravention of Fair Work Act section 342(1), 1(a):
(1) The following table sets out circumstances in which a person takes adverse action against another person.
1. An adverse action is taken by an employer against an employee if the employer
(a) dismisses the employee
and
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1).
6. Third adverse action: The respondent discriminated against the applicant by treating the applicant differently to other work team members
a. After ultimately refusing to provide a workplace with the health and safety risks referred to in paragraph 2 above removed or adequately remediated, the respondent also refused to allow the respondent (sic) to work his regular hours remotely at home, where the applicant maintains that he can perform all his regular duties without loss of quality or efficiency, and where these same health and safety risks are absent and the applicant experiences no ill-effects while working.
b. By contrast, working remotely is deemed feasible for two other staff members in the same work team for reasons other than ill-health induced by the office environment, in contravention of section 342(1), 1(d) of the Fair Work Act, ie:
(1) The following table sets out circumstances in which a person takes adverse action against another person.
1. An adverse action is taken by an employer against an employee if the employer:
(d) discriminates between the employee and other employees of the employer.
and contrary to the Fair Work Ombudsman/Employee entitlements/Protections at work web page*, which states:
‘Employees can’t be treated differently or worse because they possess or have exercised a right, or for a discriminatory reason. Employees are protected from adverse action. Adverse action includes doing, threatening or organising any of the following: … treating an employee differently than others.’
* (accessed 2 October 2017)
The only sections of the FW Act referred to in the SoC are ss.340, 341 and 342 of the Act.
Mr McAllan’s claims in his SoC are accompanied by what is described as a “summary”. This part of the SoC is largely in the nature of particulars, matters the subject for evidence and submissions.
In essence, Mr McAllan claims that he experiences migraines and that the light and noise in the NPS office has triggered increasing chronic recurrent migraines from April 2016. In his “summary” he took issue with the extent to which NPS addressed these concerns. He provided an account of events before and after he “informed the respondent that he would be vacating the office and working from the controlled environment of his home until such time as the respondent had fulfilled their obligation under the WHS Act and provided an office environment from which the applicant’s established migraine triggers had been removed”, some explanation for his subsequent actions, and an elaboration on the actions of NPS said to constitute adverse action.
NPS filed a defence (addressing the pleaded claims), which included denials that it took or threatened to take any adverse action for the reason or reasons pleaded such as to contravene s.340 of the FW Act. In particular, in response to the assertion that it changed Mr McAllan’s job against his will, NPS pleaded that on 23 June 2017 it and Mr McAllan agreed that he would be transitioned to a new role in which he would work from outside the office two days per week. This will be a matter to be considered at trial, as will the other areas in dispute between the parties, insofar as relevant to the adverse action claims.
The application in a case was supported by the SoC and, initially, an affidavit of Mr McAllan of 21 August 2017, which in part consisted of submissions.
NPS relied on an affidavit of Monique Therese Heighes, the Executive Manager, People and Environment at NPS, affirmed on 15 September 2017 and provided written submissions.
When the application in a case came before me for hearing, Mr McAllan, who is self-represented, attempted to give evidence from the bar table in response to the evidence of Ms Heighes in addition to making submissions. In the absence of any objection from NPS, I gave him the opportunity to file and serve affidavit evidence after the hearing in reply to Ms Heighes’ affidavit.
Mr McAllan affirmed an affidavit on 8 September 2017 attaching his description of past events, submissions and supporting documentation. NPS, by an affidavit of Ms Heighes affirmed on 15 September 2017, responded to an aspect of Mr McAllan’s post-hearing claims about NPS staff participating in meetings by video link. Mr McAllan’s further affidavit of 6 October 2017 (intended to be no more than a reply) also made submissions, including addressing the possibility of a settlement of his claims (a matter for the parties). In addition, Mr McAllan filed two bundles of documents he described as “expert reports”, which consist of various documents relating to his claims, his workers’ compensation claim and a decision by SafeWork NSW to grant him access to information.
The Law
Each of the pleaded instances of adverse action is said to be within s.342(1) of the FW Act. It appears that Mr McAllan intended to assert three contraventions of s.340 of the FW Act on the basis that (as pleaded in paragraph 1 of the SoC) the adverse actions pleaded were taken “after the applicant exercised a workplace right”.
Section 340 provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
i. has a workplace right; or
ii. has, or has not, exercised a workplace right; or
iii. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Under s.545 of the FW Act, the Court has power to make any order it considers appropriate if satisfied that a person has contravened or proposes to contravene a civil remedy provision (such as s.340). The orders that the Court may make include an order granting an injunction or interim injunction and an order for reinstatement (see s.545(2) and Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185; [2016] FCA 1582 at [39]-[45] per Katzmann J and also s.15 of the Federal Circuit Court of Australia Act 1999 (Cth)). I am satisfied that the Court has jurisdiction to make interlocutory orders, including ordering interim reinstatement.
The Applicant did not address the elements of the test to be applied by the Court in determining whether to make interlocutory orders. As the Respondent submitted, it is well-established that, as Katzmann J pointed out in CFMEU v Anglo Coal at [8]-[9]:
Two questions arise on any such application.
The first is whether the applicant has made out a prima facie case in the sense that if the evidence were to remain as it is, there is a probability that at the trial of the action the applicant would be entitled to relief. The second is whether the inconvenience or injury the applicant is likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if the injunction were granted. See Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65].
The first question is sometimes referred to as the issue of whether there is a “serious question to be tried”, while the second question is referred to as the test of the “balance of convenience”. As submitted by the Respondent, the two limbs of this test are interrelated in the sense that the stronger the prima facie case for final relief, the less may be required to tip the balance of convenience; while the greater the preponderance of the balance of convenience, the less strong a case for final relief may be required (see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65]-[72] and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44]-[74]).
As pointed out by Tracey J in Kweifio-Okai v Australian College of Natural Medicine [2014] FCA 746 at [11] in considering an application for interlocutory relief:
In a practical sense what the Court strives to do is to adopt the course which is attended by the lower risk of injustice if, after trial, the applicant fails to establish his or her case: see Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 501-3.
It is important to note that in determining whether or not a prima facie case, in the sense referred to above, has been made out, the Court does not conduct a preliminary trial or resolve conflicts arising on the evidence advanced by each party, although some attempt must be made to assess the relative strengths of the parties’ cases (Kweifio-Okai at [12]).
Greenwood J explained in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Ltd (2009) 184 IR 333; [2009] FCA 726 at [21]:
It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the court will examine the strength of the prima facie case and whether, 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. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants.
As NPS submitted, an application for interlocutory relief in proceedings of this nature involving an employment relationship would ordinarily be brought to preserve the status quo ahead of a final determination. However in this case, on 6 January 2017 Mr McAllan, who was a Senior Medical Editor employed in NPS’s Sydney office, advised NPS that he refused to work in the office from 9 January 2017 (in circumstances considered below). He then worked remotely. Further, while the circumstances in which this came about are in dispute, he has been working part-time and remotely for NPS since 26 June 2017 in a Medical Editor role which NPS describes as a more junior role. The final relief Mr McAllan seeks is reinstatement to a full-time position as Senior Medical Editor. This is also the relief sought on an interim basis. In this sense, the application for interim “reinstatement” seeks to depart from the existing state of affairs at the time of commencement of these proceedings and is in the nature of a mandatory interlocutory injunction.
It has been said that the same general considerations apply in relation to an application for a mandatory interlocutory injunction, although the fact that an injunction sought is mandatory can affect the outcome (see Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 503-504 per Gummow J). Caution should be exercised in circumstances where to require a party to do something on an interim basis may carry a greater risk of injustice than requiring a party not to do something on an interim basis.
In considering an application for an interlocutory order reinstating employees who had been dismissed in Australian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (2000) 100 IR 383; [2000] FCA 627 at [55], Gray J considered whether the circumstances in that case gave rise to “a serious question as to whether [employees] will be entitled to be reinstated in due course”. In other words, if the case in favour of reinstatement as a final remedy is weak, it is less likely that it will be appropriate to order reinstatement on an interim basis. While Mr McAllan has not been dismissed, he must show a sufficient likelihood of success in the principal proceeding to justify altering the present status quo such as to cause NPS to “reinstate” him to full-time employment as a Senior Medical Editor on an interim basis (see CFMEU v Anglo Coal at [46]).
Mr McAllan bears the onus of proof in relation to his application for interlocutory relief. Under s.361(2) of the FW Act the presumption in s.361(1) of the Act (that a person took, or is taking, action for a particular reason or with a particular intent where taking that action for that reason or with that intent would constitute a contravention of Part 3-1 of the Act) does not apply in relation to an application for interim orders. However there is authority to the effect that, in assessing whether there is a serious question to be tried, regard may be had to the fact that the presumption will be available in the final determination of the principal proceedings. Account can also be taken of this in assessing the respective strengths and weaknesses of the parties’ cases in exercising the discretion to grant or withhold interlocutory relief (see CFMEU v Anglo Coal at [77] and cases cited therein).
Whether serious question to be tried
A difficulty in this case is that Mr McAllan’s pleading lacks clarity, his evidence is not all in admissible form and much of what he has put before the Court in affidavits has been by way of submissions, some of which focus on matters which are undoubtedly important to him (such as why he took certain actions and his views about the actions of NPS) but which do not necessarily address the issues that will arise for determination in relation to the three asserted contraventions of s.340 of the Act.
It is, however, relevant to consider the circumstances in which the actions said to constitute adverse action occurred. While such circumstances are disputed, it is not disputed that NPS is a not-for-profit organisation which Ms Heighes describes as providing guidance and direction on the “safe and wise” use of medicines and health technologies to patients, health professionals, government and businesses. Mr McAllan has been employed by NPS since about 2005, in various capacities and in both part-time and full-time roles. It appears that he commenced full-time employment in or about April 2012 as a full-time Senior Medical Editor. There is no suggestion that his employment in this position was on the basis that he could work remotely full-time.
Mr McAllan claims that he suffers from migraines that are triggered by light and noise in the offices of NPS. NPS does not dispute that he suffers from migraines. Emails between the parties reveal that in December 2016 Mr McAllan asked NPS if he could work from home. He stated that his photosensitivity and the frequency of consistent migraine headaches had increased significantly. He described difficulties said to have been experienced as a result. He asked to work from home full-time on a permanent basis.
As it advised him on 3 January 2017, NPS was not prepared to allow Mr McAllan to work from home on a permanent basis, as requested. This was said to be because his role needed to be performed primarily in the office. Mr McAllan disputes whether this is in fact the case.
NPS claims it undertook to take steps to eliminate or minimise possible risks to Mr McAllan’s health from the office environment. It is apparent from the SoC “summary” and email correspondence that Mr McAllan was not satisfied with the steps taken by NPS by early January 2017. On 6 January 2017 he informed NPS of his view that the steps taken were unsatisfactory, even as a “temporary fix”, and that to exercise what he saw as his responsibility under the Work Health and Safety Act 2011 (NSW) to take reasonable care of his own health and safety, as from 9 January 2017 he would “be available for work only from home” until a permanent quiet work space with low-level lighting was made available.
It appears not to be in dispute that Mr McAllan has not worked at the NPS offices since 6 January 2017.
In an email of 9 January 2017 to NPS, Mr McAllan claimed that as his photosensitivity had increased (as he said he had already explained in an email of 16 December 2016) for the office to be a safe and healthy place for him, all the places in the office where he would be required to be present would need to be modified to have light reflective surfaces removed. He later expanded this to include removal of all fluorescent lighting. He suggested that the best solution would be that he be allowed to work from home.
There was further correspondence in which NPS canvassed possible modifications to a work space in the office, reiterated the need for current medical advice about Mr McAllan’s condition and advised that an independent expert would be consulted about the impact of Mr McAllan’s work surroundings on his medical condition and asked to provide recommendations. A Reasonable Adjustment for Disability Report was prepared on 6 March 2017 which suggested modifications to the NPS office and stated that Mr McAllan had the capacity to work from the office if a suitable environment was provided in the office.
Over the following months, there were various communications between Mr McAllan and representatives of NPS as to potential adaptions to the workplace, although it is apparent that the parties are not in complete agreement as to exactly what happened or did not happen and why. During this period, Mr McAllan attended, but did not remain for completion of, a medical examination by a consultant neurologist designated by NPS.
On 11 April 2017, Ms Piccaro of NPS emailed Mr McAllan, advising that on the information NPS had it was satisfied it would be able to make a reasonable adjustment and relocation of his workspace which would provide a suitable environment for him to return to the office. He was instructed that he would be required to work in the Sydney office at least three days a week, with the remaining days to be worked from his home office, with a review at eight weeks. Mr McAllan took issue with the adequacy of the suggested arrangements. In any event, he did not return to work at the NPS office.
While NPS and Mr McAllan see the events from January 2017 rather differently, it is not in dispute that on 10 May 2017 Ms Vaccaro, Managing Editor, Medicines Information and Ms Heighes (who, on her evidence, had delegated authority in relation to the termination or potential termination of the employment of any NPS employee) wrote to Mr McAllan referring to past events and medical evidence and advising (for reasons described) that NPS’s view was that an inherent requirement of the Senior Medical Editor position involved performing work in the office at least 2 to 3 days per week; that the arrangements put in place to accommodate his medical condition should facilitate him working safely in the office for up to three days a week; and addressing the perceived impact of his current work practices, his absence from the workplace and his continued refusal to attend the office to do work and why it was seen as not practicable that he work full-time from home as Senior Medical Editor. NPS advised that although it had agreed to accommodate Mr McAllan’s work from home arrangement on a temporary basis, it could no longer do so and was considering the options available in respect of his continued employment as Senior Medical Editor and whether his employment would continue.
The letter advised Mr McAllan that NPS’s “preliminary view, on the basis of available medical information and your continuing refusal to return to the office for the stated medical reasons, is that your employment will need to cease because you are unable to perform the inherent requirements of your position”. In her affidavit of 29 August 2017 Ms Heighes gave evidence as to why she decided to issue this letter (the show cause letter) and why she had the “preliminary” views expressed in that letter.
In his affidavit of 8 September 2017 Mr McAllan expressed his disagreement with the views expressed in the show cause letter, in particular as to whether NPS had in fact taken reasonable steps to accommodate him. He suggested that NPS’s actions were not lawful under the Workplace Health and Safety Act 2011 (NSW). He provided a copy of an email to NPS of 21 May 2017 which was said to be a “comprehensive critique” of their letter as containing inaccuracies, distortions, and misrepresentations. In essence, he disagreed with NPS’s view of the situation and past actions. He raised issues about the medical evidence and the rehabilitation report and the adequacy of suggested office modifications. He disputed the claim that it was not feasible for his position to be performed remotely and provided his view of past and present work practices in detail.
Mr McAllan has provided copies of some documents in relation to events at this time and made submissions about his views of the actions of the parties and other events and matters he considers relevant.
On 17 May 2017 Mr McAllan lodged a general protections claim with the Fair Work Commission (the FWC). There was a conciliation on 25 May 2017. It was adjourned until 8 June 2017.
There was then an exchange of emails between the parties in which NPS indicated that it was prepared to offer Mr McAllan a more junior part-time Medical Editor role which he could perform from home. This is explained by NPS as arising out of the FWC conciliation.
Mr McAllan has explained his view of these negotiations and why he made certain statements to NPS. On 30 May 2017 Mr McAllan suggested by email to NPS that he would require permanent part-time work of at least 2.5 days a week and stated that he would need to freelance/contract for the rest of the week. In his affidavit of 6 October 2017 he claimed that after the conciliation he asked NPS to agree to at least three days work part-time. However he also claimed that this was before a solicitor advised him that the deterioration in his medical condition constituted a compensable workplace injury and that he may be better off making a workers’ compensation claim for lost income and, if successful, accepting the two day a week part-time position offered by NPS. He gave evidence of the reasons for the change in his views following the receipt of legal advice and about his decision to make a workers’ compensation claim.
Ms Heighes’ evidence is that the alternative position that NPS offered Mr McAllan was a more junior role of Medical Editor which it had created to accommodate him and which did not include many of the responsibilities associated with his Senior Medical Editor role, which, it was said, required him to be in the office for a minimum of two to three days a week. Mr McAllan disputes whether there is such a need.
On 1 June 2017 Mr McAllan advised NPS by email that while his preference was to remain working permanently full-time remotely, if NPS deemed that “unviable” and part-time remote work was all that was on offer and agreement was reached on the details of the arrangement, he had been advised to accept this and to lodge a workers’ compensation claim “for the difference in income”.
Mr McAllan places great importance on the fact that, in response, Ms Heighes emailed him saying: “I can reassure you that we do not take any workers compensation claim personally, we never have and we are more than happy to support you and participate in that process as requested by our insurer.” He has explained his understanding of what this meant in terms of the future. He suggested that he had stated to NPS that he could accept the part-time position if agreement on details of the arrangement could be reached and his workers’ compensation claim covered his loss (i.e. was successful). He is of the view that he conveyed this to NPS in stating in his email of 1 June 2017 “So there’s no hard feelings – NPS is not at fault and not to blame for the deterioration in my condition, and the compulsory workers’ insurance covers my loss, with no ‘black mark’ against NPS or increased insurance premium or any negative impact on NPS whatsoever.”
Correspondence between the parties continued in June 2017. Mr McAllan filed a workers’ compensation claim with the State Insurance Regulatory Authority (SIRA) in mid-June 2017 (referred to by him as a WorkCover claim). On 21 June 2017 NPS gave Mr McAllan formal notification that they would be actioning the revised employment arrangements said to have been “discussed and verbally agreed to by you as part of the Fair Work Conciliation process”, effective from 26 June 2017. Later on 21 June 2017 Mr McAllan advised NPS that his acceptance of the part-time offer was entirely dependent on approval of adequate workers’ compensation.
In these proceedings, Mr McAllan explained his current understanding of the “process” of what he described as a WorkCover claim, referring to later advice he received from SIRA. It appears that he sees this as relevant because his employment changed to a more junior part-time role after his initial workers’ compensation claim was rejected, but before he had exhausted his review rights.
In an email to NPS of 22 June 2017 Mr McAllan reiterated that he did not “yet” agree to accept the part-time offer. He stated that if NPS proceeded to adjust his salary before he consulted his solicitor he would not be able to continue to perform NPS’s work.
On or about 21 or 22 June 2017 NPS and Mr McAllan were each advised that Mr McAllan’s workers’ compensation claim had been rejected. After this, on 22 June 2017 NPS advised that it was its view that they had reached agreement on a modified part-time arrangement which would be actioned from 26 June 2017. On 22 June 2017 Mr McAllan drew NPS’s attention to his intention to seek review of the workers’ compensation decision.
On 23 June 2017 there was further email correspondence between the parties. NPS insisted to Mr McAllan that it had never agreed to the part-time arrangement being conditional on a successful workers’ compensation claim and that Mr McAllan’s verbal agreement had not been expressed to be so conditional. Mr McAllan disagreed, referring to NPS’s assurance that they were more than happy to support him through the claim process.
NPS advised Mr McAllan by email sent at 9:13am on 23 June 2017:
Of course your decision to appeal the insurer’s decision is a matter for you.
However, you now have a choice. Our offer for you to work part time is still available – to commence the week of Monday 26 June. You now have until 12 noon on Monday 26 June to advise us of your acceptance of this offer.
If you do not accept, we will recommence the process we started with our letter dated 10 May 2017 (‘Your employment with NPS MedicineWise’) and move forward to consider termination of your employment on the basis that you are unable to perform the inherent requirements of the position of Senior Medical Editor. We anticipate we would be making a decision about this by the end of next week and in doing so will give due regard to your response to our letter of 10 May.
Mr McAllan responded at 4:00pm on 23 June 2017:
It is still my wish to accept the part-time offer if that is all that NPS is prepared to offer, but I need to ensure that accepting it before your insurer’s review is completed doesn’t jeopardise my chance of compensation, as per my solicitor’s advice. I hope that you will be true to your assurance to support me through this process and not risk me losing the chance of compensation by forcing me to accept the part-time position before the review is complete and I have consulted my solicitor, whom I have called back again (at 2.30 pm) and left an urgent voicemail message with but have still not heard back from (4.00pm). I can’t do any more than keep trying to contact him, which I will do again before COB.
NPS extended the time limit for acceptance of their offer to close of business on 26 June 2017. Importantly, later on 23 June 2017 (at 5:54pm) Mr McAllan emailed NPS with what he described as “confirmation of modified role” as follows:
I’m happy and relieved to report that my solicitor finally called me back just now and advised me that it will be OK for me to accept the part-time position to avoid any disciplinary action, especially termination.
Mr McAllan now claims that NPS actioning the part-time position when the insurer initially rejected his workers compensation claim “clearly broke the stated condition of [his] acceptance of the part-time position, nullifying the tentative agreement”. He disputes NPS’s understanding of how, and perhaps whether, they came to an agreement in relation to the part-time role of Medical Editor. He asserts that his agreement was conditional and his intention was only that he would accept the part-time position if agreement on the details of the arrangement could be reached and his workers’ compensation claim was successful and covered his loss. This is not directly responsive to the reasons NPS gives for its action. Moreover, in his email of 4:00pm on 23 June 2017 to Ms Heighes, Mr McAllan had stated that:
I have never claimed that your offer of the part-time position was dependent on a successful compensation outcome. What I have consistently stated is that my acceptance of it was. However, what I should have said was that my acceptance was dependent on my solicitor’s advice, as in our second FWC teleconference when I clearly stated that, while I agreed in principle to the offer of the permanent part-time position I needed to speak with my solicitor (scheduled for the next day) before accepting the offer.
He also claimed that he believed his workers’ compensation claim would be successful as NPS had assured him it would support him through the process.
On 24 June 2017, Ms Heighes sent Mr McAllan an updated contract and working from home agreement for signature with a revised commencement date of 26 June 2017.
NPS actioned the new role for Mr McAllan from 26 June 2017. Ms Heighes’ evidence is that it did so on the basis of its understanding that he had accepted the new part-time position.
In paragraph 4 of the SoC the reduction of Mr McAllan’s work hours is claimed to be the first adverse action taken by NPS because he had exercised his workplace right to vacate the office environment and insisted on working from home until the health and safety risk had been removed. He characterises this action as NPS altering his position to his prejudice.
Mr McAllan claims that NPS’s decision to reduce his employment from full to part-time was because he exercised the alleged workplace rights (and appears to assert that this was also the reason for the show cause letter of 10 May 2017). He appears to claim that NPS proceeded to action the part-time position before he was made aware of an adverse initial determination of his WorkCover claim, although it is not clear how any such claim can be reconciled with the exchange of emails described above.
For the purpose of these interlocutory proceedings, NPS was prepared to accept that there was a prima facie case that Mr McAllan had a workplace right under the Work Health and Safety Act, but contended that there was no evidence, or no credible evidence, that there was a relevant connection (in the sense provided for in s.340 of the Act) between the asserted exercise of the workplace right and any of the asserted adverse actions. Absent some evidence establishing causation, there was said to be insufficient basis to prove that there was a serious question to be tried that NPS had contravened provisions in Part 3-1 of the FW Act. It was submitted that Mr McAllan had not put before the Court anything other than circumstantial matters characterising the actions NPS took as connected with his refusal to attend the office.
It was acknowledged by NPS in submissions that the presumption under s.361(1) of the Act did not apply to interlocutory proceedings (see CFMEU v Anglo Coal at [77]), but contended that while Mr McAllan would not have to bear the onus of proof in relation to causation at trial if the requirements of that section were established, there was still no prima facie case and no serious question to be tried in the absence of any evidence from Mr McAllan to counter Ms Heighes’ evidence as to the reason for NPS’s actions such as to indicate that NPS took the asserted actions of reducing his hours (or issuing the show cause letter or refusing to allow him to work full-time in his Senior Medical Editor role at home) because he had exercised the asserted workplace right.
NPS submitted that the evidence as to the exchange of emails between the parties up to 23 June 2017 indicated that the reduction in hours was done because Mr McAllan confirmed his agreement to this proposal on 23 June 2017 and that on this basis NPS took steps to adjust his role to a more junior part-time role. It was submitted that there was nothing to suggest that NPS had taken this action because Mr McAllan had exercised a workplace right on 6 January 2017. There is much strength in this contention on the material presently before the Court.
A difficulty that faces Mr McAllan in establishing a prima facie case of contravention of s.340 in this respect is that, despite the evidence of his initial hesitations and reservations, on the face of the emails between Mr McAllan and NPS the parties appear to have reached an agreement, at least by late afternoon on 23 June 2017, that he would work two days a week in a more junior role (but at the same rate of pay as previously) and that he could work exclusively from home in that role. Ms Heighes, the decision-maker for NPS, has given evidence as to the reasons for reducing Mr McAllan’s work hours (on the basis that she considered he had agreed to the alternative part-time role). This reflects the fact that if the prerequisites for the operation of the reverse onus under s.361 of the FW Act are met at final hearing (which NPS did not concede would be the case) the onus of proof would be on NPS in relation to its motivation for making the change.
It appears (from evidence of an email from Mr McAllan to his solicitor) that on 26 June 2017, after receiving advice about whether an employer could legally change his work conditions while a WorkCover claim/review or Workers Compensation Commission action was underway, Mr McAllan lodged another complaint with the Fair Work Commission and informed NPS of what he said was the view of SIRA about the right to change working hours while a claim or review or workers’ compensation action was underway.
Mr McAllan may have had second thoughts after his email to NPS of 23 June 2017, but the first adverse action is pleaded to relate to a reduction in hours and change of role put into place from 26 June 2017. A later change of heart would not in itself assist Mr McAllan to establish this aspect of his claim (or to respond to evidence from NPS that it did not have the imputed proscribed reason at the time it reduced his work hours).
While it is not the subject of these proceedings, Mr McAllan also contended NPS’s action was unlawful under State law. Whether or not that is so, or the reduction in work hours was contrary to SIRA regulations and “instructions” from SIRA after the event, what is in issue under s.340 of the FW Act and in these proceedings is whether NPS changed Mr McAllan’s job to his disadvantage “because” he had exercised the asserted workplace right in January 2017.
Furthermore, there is evidence before the Court consistent with NPS’s claim in relation to its reasons, including the exchange of emails and the fact that NPS’s position in relation to the inherent requirements of the Senior Medical Editor position was expressed to Mr McAllan in an email of 3 January 2017, which was before he exercised the alleged workplace right. Mr McAllan has not disputed that he was advised on 3 January 2017 that NPS considered that the role of Senior Medical Editor needed to be performed primarily in the NPS office, albeit that he disagrees with whether this is in fact so.
Considering the relative strength of the parties’ cases on the evidence presently before the Court, there is little evidence upon which it might be concluded (even bearing in mind that while the s.361(1) presumption does not apply when an interim injunction is sought, it does at trial), that the change in work hours occurred because Mr McAllan refused to work in the office from 9 January 2017 until his health and safety concerns were addressed. Mr McAllan’s case that NPS took adverse action within s.340 of the FW Act by changing his job to his disadvantage by reducing his work hours by 60% is not strong. The evidence as it presently stands is not such as to establish a sufficient likelihood of success in the principal proceedings such as to support his application for interim relief. His case in this respect is at present relatively weak.
The second asserted adverse action is described in the SoC as “repeated threats” to terminate Mr McAllan’s employment made after he had refused to comply with NPS’s first asserted adverse action (which, as discussed above, is said to be the reduction in work hours by 60% which occurred from 26 June 2017, having been actioned on 23 June 2017).
In the “summary” accompanying the SoC Mr McAllan referred to the show cause letter as a threat to terminate his employment. He went on to refer in general terms to subsequent “threats” as follows:
32. When the applicant refused to accept the part-time position before his WorkCover claim had been successfully settled, as had been agreed as described in paragraph 27 above, the respondent once again threatened to terminate the applicant’s employment. This is the first instance of adverse action referred to in paragraph 5 above (after the initial 10 May threat of termination).
and
36. After the Fair Work Commissioner closed this second FWC file, the respondent reiterated their threat to terminate the applicant’s employment if he did not accept the part-time offer within 1 week. This is the second instance of the adverse action referred to in paragraph 5 above.
The vagueness and generality in the description of unspecified “repeated threats” means that this aspect of the case is not clearly pleaded. This lack of clarity does not assist Mr McAllan in establishing that he has a serious question to be tried in this respect on the evidence presently before the Court.
Mr McAllan’s supporting affidavits do not clarify the precise basis for the assertions of repeated instances of threats amounting to adverse action except insofar as there is reference to emails which preceded Mr McAllan’s email to NPS of 5:54pm on 23 June 2017, which in themselves were said to be “repeated threats of termination”.
It appears from NPS’s submissions that it understood the second asserted adverse action was intended to relate to its show cause letter of 10 May 2017.
If this aspect of the claim was intended to relate to the show cause letter, there is state of mind evidence from Ms Heighes that such action was taken because NPS had formed the view that Mr McAllan was unable to perform the inherent requirements of his position (consistent with its expression of this view to him before he exercised the alleged workplace right). The Respondent has pleaded and has given evidence to the effect that while it denied threatening to terminate the Applicant’s employment, if it did, it did so not because the Applicant exercised a workplace right (which it denied) but because it was an inherent requirement of the Senior Medical Editor role that Mr McAllan attend work at the NPS office for a minimum of two to three days a week; that it had offered or made reasonable adjustments to the workplace and work practices of Mr McAllan, consistent with the medical advice available to it, to facilitate Mr McAllan working at its office; that despite this he would not do so and had requested adjustments NPS says were not reasonable or would have posed an unjustifiable hardship on it and that it had formed the preliminary view that his ongoing employment was untenable. Mr McAllan takes issue with what are the inherent requirements of the Senior Medical Editor role and whether offered workplace adjustments were reasonable.
Insofar as Ms Heighes addressed the reason for the show cause letter in her affidavit of 29 August 2017, Mr McAllan disputed these asserted explanations, although it is not clear that he appreciates that what would be in issue (if the s.361(1) presumption applied) would be the motivation of NPS and whether it made threats (if it did) for the reasons it claims.
Insofar as Mr McAllan’s concern is with “threats” after 10 May 2017, as indicated he has not pleaded this with any specificity. The affidavit accompanying his application in a case did not address this aspect of his claims. His subsequent evidence responding to Ms Heighes’ evidence appears to have proceeded on the basis that the adverse action asserted in paragraph 5 of the SoC related to the show cause letter.
I cannot be satisfied Mr McAllan has made out a prima facie case in the requisite sense in relation to this aspect of his claims, given the absence of specificity as to exactly what are said to constitute the “repeated threats to terminate the applicant’s position if he did not accept the 60% reduction in work hours” and the lack of clarity as to the evidence intended to be relied on in this respect.
Further, even if it is to be inferred from the description of events in the summary attached to the SoC that it is asserted that the “threats” were warnings (including prior to or at the time of the 23 June 2017 “agreement” relied on by NPS) that if Mr McAllan did not accept the offer of the modified part-time role, NPS may proceed in accordance with its show cause letter having regard to the inherent requirements of the role, the evidence in this respect is unclear and apparently incomplete.
It is possible that Mr McAllan may have an arguable claim in relation to the second asserted adverse action (if properly formulated) but at present it is not such as to show a sufficient likelihood of success in the principal proceedings to support a claim for interim reinstatement, or indeed an interim order restraining NPS from threatening or acting to terminate his employment, at least insofar as such action may be taken for reasons unrelated to the matters in issue in these proceedings in the sense considered by Greenwood J in CEPU v Blue Star Pacific Pty Ltd.
It is not necessary to consider further the application for an interlocutory order restraining actual or threatened termination of Mr McAllan’s employment because NPS has provided an undertaking to the Court that Mr McAllan will not be dismissed from his present employment before the next occasion the matter is before the Court. Counsel for the Respondent indicated, and I accept, that such undertaking would likely be continued to the conclusion of the proceedings provided Mr McAllan prosecutes the proceedings expeditiously. In these circumstances I accept that at present there would be no utility in granting such interlocutory relief.
The third asserted adverse action (pleaded in paragraph 6 of the SoC) has undergone some explanation and modification in Mr McAllan’s submissions and his post-hearing affidavits. This has meant that NPS has been unable to provide a detailed response to a case that was not clearly articulated in the SoC, in the affidavit accompanying the application in a case or in the hearing of the interlocutory application.
Mr McAllan pleaded that “working remotely is deemed feasible for two other staff members”. In taking issue with whether it was feasible for him to work at home and whether his part-time position was in fact a more junior position, in his post-hearing affidavit of 8 September 2017 Mr McAllan referred to the fact that two members of his team from Melbourne participated in a Monday morning team meeting by video link, whereas it was said not to be deemed feasible for him to do so. He alleges that this was for a discriminatory reason, but while he also referred to this being contrary to information on the Fair Work Ombudsman website, his SoC relies only on s.340 of the FW Act as the basis for his claim. If he intended to assert liability of NPS on some other basis, this has not been made clear.
In her affidavit of 15 September 2017 Ms Heighes attested to the fact that it appeared that Mr McAllan was referring to two NPS staff members who were based in the NPS Melbourne office, who were said to perform different roles to Mr McAllan and who did not work from home. Her evidence is that it was not uncommon for the Melbourne-based staff to fly to Sydney to attend workshops, training and meetings in the NPS head office in Sydney and that there were no NPS staff in an editing role or in Mr McAllan’s team who worked full time from home.
Following this, in his affidavit of 6 October 2017 Mr McAllan then asserted that his argument regarding discrimination is “not about other NPS staff being allowed to work from their homes while I am not”. He claimed he had never alleged this (although it is understandable that NPS saw this as the basis for the allegation in paragraph 6 of the SoC that it “refused to allow the respondent (sic) to work his regular hours remotely at home” whereas “working remotely” was deemed feasible for two other team members). In any event, Mr McAllan then explained in his affidavit (by way of submission) that “the crux” of his argument was about NPS’s view that “the inherent requirements of [his] position necessitate [his] bodily presence in the … Sydney office”, whereas two others in the team were allowed to work from Melbourne (albeit they “may” work from the Melbourne office). He made broad allegations about obligations on employers in relation to disability discrimination.
As pleaded (that is, as a decision to refuse to allow Mr McAllan to work his regular hours remotely at home) there is no explanation as to how it is said that this decision was taken by NPS because Mr McAllan exercised his asserted workplace right in January 2017. In paragraphs 1 and 6 of the SoC, Mr McAllan appears to rely solely on the fact that the conduct complained of is said to have occurred after the exercise of his asserted workplace right. If this claim is intended to relate to the period up to 23 June 2017, Mr McAllan did work full-time from home during that period. If it is intended to relate to the period after 23 June 2017, the issue of causation in relation to such asserted adverse action claim faces the obstacle described above in relation to the first claim, that is, that Mr McAllan was informed on 3 January 2017 of NPS’s view that the role of Senior Medical Editor required some attendance in the NPS office before he absented himself from the office from 9 January 2017 as attested to by Ms Heighes.
The lack of clarity in the pleading and as to precisely what is intended by this assertion of adverse action means that I cannot be satisfied that Mr McAllan has established that if the evidence remains as it is, there is sufficient likelihood of success in relation to the third pleaded allegation of adverse action.
It is clear that Mr McAllan disagrees with NPS, including in relation to what are the inherent requirements of the Senior Medical Editor position and whether it can be performed remotely. Evidence in that respect may be of relevance in relation to the inherent plausibility of an explanation from NPS as to its reasons for refusing to let Mr McAllan work full-time remotely in a Senior Medical Editor position if Mr McAllan’s allegations were such as to enliven the operation of the s.361 presumption at a final hearing (which NPS disputes on the basis that it denies it treated him differently from other members in the work team or in the same or similar roles). However what would then be in issue would not simply be whether Mr McAllan’s view of the inherent requirements of the position was in fact correct, but rather whether NPS established that on the balance of probabilities its refusal to allow Mr McAllan to work full-time from home as a Senior Medical Editor was not for the alleged proscribed reason (his exercise of a workplace right in refusing to work in the office in January 2017). In this context the actual reasons which motivated NPS would be in issue (see Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 at [19].
As presently pleaded, the case advanced in support of Mr McAllan’s application for a mandatory injunction is relatively weak, notwithstanding that at trial the reverse onus in s.361(1) would apply if the prerequisites in that section were met.
I have considered the balance of convenience in this context. As indicated, it is not necessary to reach a view as to whether the balance of convenience favours the grant of an interlocutory injunction restraining termination of Mr McAllan’s present employment, as there would be no utility in such order given NPS’s undertaking. I also note that Mr McAllan’s submissions focussed on the reasons for his desire for interlocutory “reinstatement” to a full-time position.
In support of the application for interim “reinstatement”, Mr McAllan contended that he would suffer financial hardship were this not to occur. Plainly, a reduction of 60% in his earnings from NPS must have a financial effect, notwithstanding that Mr McAllan’s employment has not been terminated. Initially Mr McAllan provided no specific evidence in this respect. Nor did he address any other sources of income (such as the freelance work Ms Heighes understood that he did) or his financial situation generally, although he did claim he would be forced to move out of his rented home and out of Sydney because he could not continue to meet his basic living expenses.
After the hearing, Mr McAllan provided some evidence as to his past taxable earnings being almost entirely from NPS, quantification of this basis of a 60% reduction in his income from NPS and details of his rent. The evidence he provided as to freelance work related only to a time when he was in full-time employment with NPS. At that time such earnings were nominal, although he is said to have turned down extra NPS work on 12 July 2017 because he had a full day of freelance work. There is no evidence as to freelance earnings since 26 June 2017 or of any steps taken by Mr McAllan to obtain other work.
He has terminated the lease on his Sydney unit and has accessed part of his superannuation through a transition to retirement pension to cover living/work expenses and claims that he is experiencing stress and inconvenience.
I accept that Mr McAllan is suffering some financial hardship at present in circumstances where his income from NPS has reduced by 60%, although it appears from emails between Mr McAllan and NPS in the period leading up to 23 June 2017 that he contemplated the financial implications of agreeing to part-time work and that he would “need to freelance/contract for the remainder of the week”. However he also indicated that he saw 2.5-3 days a week work for NPS as a minimum to avoid financial hardship. In the longer term, Mr McAllan seeks damages to compensate him for the difference between his full-time earnings from NPS and his earnings working two days a week for NPS. There is nothing to indicate that, if he were successful, damages would not be an adequate remedy in the longer term although I accept that, in the interim, Mr McAllan is experiencing some financial pressure, stress and inconvenience. This has to be seen in light of the apparent lack of strength in his case as presently formulated. Counsel for NPS raised the absence of any undertaking by Mr McAllan as to damages as a factor against granting the interim order sought. No such undertaking has been offered.
For its part, NPS, which is a not-for-profit organisation primarily funded by and financially accountable to the Department of Health, has given evidence through Ms Heighes of steps taken to arrange its business in reliance on what it understood to be the agreement with Mr McAllan to accept his new part-time role (including advising Mr McAllan’s team of his new position, revising and reallocating workflow to absorb additional workflow and engaging additional, albeit undefined, “resources” at an unspecified cost) to undertake the extra work and perform tasks that needed to be performed from the NPS office. I accept that there has been some minor inconvenience and cost to NPS in this respect. It has maintained Mr McAllan’s rate of pay for the position of Senior Medical Editor, despite him undertaking what NPS describes as a more junior position.
Mr McAllan appears quite convinced that he can, and should, perform his former role 5 days per week from home (and also that modifications to the NPS office made or suggested by NPS are inadequate). While NPS’s claim is that a number of essential requirements of the Senior Medical Editor role cannot be fulfilled by a person working out of the office full time, Mr McAllan asserts that the office environment continues to pose an “established” risk to his health and safety, although this has not been “established” in these proceedings and the evidence in that respect, including medical or other expert evidence, is at present quite limited.
Of concern is the fact that if Mr McAllan is reinstated to his former 5 day a week Senior Medical Editor position, the evidence (particularly Mr McAllan’s affidavit of 6 October 2017) suggests that he will continue to work from home and will refuse to attend NPS’s offices as they require him to do.
If that were to occur, interim “reinstatement” to the full-time position of Senior Medical Editor would be to a position which NPS says requires work in the NPS office that Mr McAllan now says he cannot perform and which NPS says he has not performed since he vacated the office in January 2017. Ms Heighes’ evidence is that if Mr McAllan maintained that he could not attend the office she considered that NPS would need to progress the process initiated by the show cause letter, but that as NPS has provided an undertaking to the Court not to terminate Mr McAllan’s employment until the matter is next before the Court, it is in a state of “limbo” in relation to Mr McAllan’s employment. It is said to be for this reason that NPS has maintained the status quo pending resolution of this case.
The terms on which such mandatory interim injunction is sought are uncertain. If the “reinstatement” sought was to enable Mr McAllan to work from home full-time as a Senior Medical Editor, the grant of the injunction would also disturb what was the status quo before Mr McAllan decided not to attend the NPS office in January 2017. Significantly, it would in effect compel NPS to allow Mr McAllan to work from home full-time in the role of Senior Medical Editor, thus intruding into the employment relationship. In the circumstances of this case, on the evidence presently before the Court this is a factor that weighs against granting the interlocutory injunction sought. I also note the traditional reluctance of courts to order specific performance of contracts of employment (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 428).
For reasons which Ms Heighes details, NPS is of the view that the position of Senior Medical Editor requires the holder of that role to work from the office two to three days a week. It is her view that Mr McAllan would not be able effectively to undertake listed tasks working full-time remotely as Senior Medical Editor. Mr McAllan disputes what are the inherent requirements of the Senior Medical Editor role and the need to perform any part of the role of Senior Medical Editor from the office (as well as whether the office accommodates his needs in light of his asserted disability) and now suggests that NPS should make alternative arrangements for performance of what he sees as non-core tasks.
It is not appropriate or necessary to determine this aspect of the dispute in the present context. However it appears that Mr McAllan contemplates that if there are duties to be performed in the office, NPS would have to make alternative arrangements for performance of these tasks (at least on an interim basis) if his “reinstatement” was on the basis of working full-time remotely. NPS has referred to the need to hire additional resources following the change to Mr McAllan’s role to that of a part-time Medical Editor. It is apparent that NPS is of the view it would incur the cost of additional resources (on top of a full-time salary for Mr McAllan) if he were to be reinstated on such an interim basis. NPS expresses concern about this, especially given its not-for-profit and federal government funding status. Such issues do not weigh in favour of reinstatement on an interim basis in circumstances where Mr McAllan has not established that there is a serious question to be tried.
I have taken into account the matters raised by Mr McAllan as to why his full time employment ought to be reinstated on an interlocutory basis, in particular the financial issues he raises. Despite the fact that some (although not all) factors weigh in favour of granting the relief sought by Mr McAllan, seen in light of the weak prospects of success for his case as pleaded and the absence of evidence that damages would not be an adequate remedy in the longer term, in all the circumstances of this case on the evidence before the Court I am of the view that the balance of convenience and the interests of justice are not such as to favour the grant of the injunction sought.
On balance, I am not persuaded that I should grant the interim injunction sought. As Katzmann J pointed out in CFMEU v Anglo Coal at [74], the merits cannot be ignored. As the Full Court of the Federal Court stated in Samsung Electronics Ltd v Apple Inc at [67]:
As Sundberg J observed in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 at [15] (p 342), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd [2003] FCA 496; (2003) 57 IPR 1 at [31] (p 10) per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218; (2005) 66 IPR 325 at [18] (p 329) per Stone J; and Castlemaine Tooheys at 154 per Mason ACJ.
This does not mean I am prejudging the question of whether Mr McAllan may ultimately succeed in the principal proceedings or whether, if so, he should be reinstated to full time employment (in any form). However I am not satisfied that it is appropriate on an interlocutory basis to grant the relief sought. The application in a case should be dismissed.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 December 2017
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