McEwan v 365 Site Services Pty Ltd

[2016] NSWCATAD 310

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310
Hearing dates:	7 December 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	Mr McEwan’s application for an interim order prohibiting 365 Site Services Pty Ltd from terminating his employment pending further order of the Tribunal, is refused.
Catchwords:	HUMAN RIGHTS – interim order – prima facie case – balance of convenience – complaints of victimisation and discrimination on ground of responsibilities as a carer - where employer suspended employee on full pay pending consideration of disciplinary action
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 49S, 49T, 49V, 50, 104, 105 and 108
Cases Cited:	Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Cardile v LED Builders Pty Ltd [1999] HCA 18
Texts Cited:	Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press)
Category:	Procedural and other rulings
Parties:	Benjamin McEwan (Applicant) 365 Site Services Pty Ltd (Respondent)
Representation:	Counsel: C Magee (Respondent)   Applicant (self-represented)
File Number(s):	1610786
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr McEwan seeks an interim order under the Anti-Discrimination Act 1977 (NSW) (AD Act) that his employer, 365 Site Services Pty Ltd, be prohibited from terminating his employment pending further order of the Tribunal. He has complained to the President of the Anti-Discrimination Board that his employer has victimised him and discriminated against him on the ground of his responsibilities as a carer. The President has accepted these complaints for investigation but they have not been resolved.

2. The Tribunal has power to make interim orders under s 105 of the AD 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,

pending determination of the matter the subject of the complaint.

3. I made an interim order on 7 December 2016 pending further order of the Tribunal and directed the parties to provide further submissions. After considering those submissions I refuse Mr McEwan’s application for an interim order. The complaints are legally complex and there is considerable disagreement as to the facts. Depending on how Mr McEwan characterises his complaints, there may be a sound legal basis for them: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. The Tribunal could compensate Mr McEwan for any lost wages and potentially reinstate him to his position if he substantiates his complaint. On the other hand 365 Site Services will be permanently out of pocket if they have to keep paying Mr McEwan and his complaint is not substantiated. For those reasons, which are explained further below, the balance of convenience is in favour of 365 Site Services.

Legal principles

4. Authors Rees, Rice and Allen identify the two overlapping purposes of s 105 (and similar provisions throughout Australia):

... first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint: N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials (2nd ed 2014, The Federation Press) at 812.

5. Section 105 is modelled on the power of courts to make interlocutory injunctions. Common law principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89].

6. In Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 the High Court explained that the court should address itself to two main inquiries:

The first is whether 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 … The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

7. I agree with authors Rees, Rice and Allen, that these principles should guide rather than control courts and tribunals when dealing with applications for interim orders in anti-discrimination cases: Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press) at 816.

Legal merits of the case

8. The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.

9. The details of the carer’s responsibility complaint are set out in Mr McEwan’s complaint to the Anti-Discrimination Board. He alleges that his employer has discriminated against him on the ground of his responsibilities as a carer. Section 49V(2) of the Anti-Discrimination Act provides that:

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:

(a) in the terms or conditions of employment that the employer affords the employee, or

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

10. The meaning of “responsibilities as a carer” is set out in s 49S of the AD Act. The definition of discrimination on the ground of responsibilities as a carer is set out in s 49T. Discrimination may be direct, as defined in s 49T(1)(a) of the AD Act, or indirect, as defined in s 49T(1)(b). An employer has a defence to a complaint of dismissing an employee under s 49(2)(c) in the circumstances set out in s 49V(4).

11. As an employer, 365 Site Services has a legal obligation not to discriminate against an employee in the terms or conditions of their employment or by dismissing an employee. The onus is on Mr McEwan to establish that his employer’s conduct falls within the relevant provisions. If it does, then the onus shifts to 365 Site Services to establish that their conduct comes within an exception such as that in s 49V(4) relating to Mr McEwan’s ability to perform the inherent requirements of the job: AD Act, s 104.

12. Mr McEwan has been employed by 365 Site Services as an installer/operator since 25 October 2013. He has a pre-school age child and has been attempting to negotiate flexible working hours with his employer. He alleges that since November 2015, his employer has been trying to “bully him out” of employment by creating an atmosphere at work that would “encourage him to quit”. Mr McEwan cites a disciplinary meeting which took place on 5 October 2016 as the most recent example of this conduct. It was alleged that Mr McEwan left a work site early for personal reasons without justification and without proper authorisation. Mr McEwan denies that allegation and alleges that during the disciplinary meeting two employees behaved in an unacceptable and unprofessional manner towards him.

13. On 29 November 2015, 365 Site Services wrote to Mr McEwan asking him to show cause as to why his employment should not be terminated. It was alleged that during the last 12 months Mr McEwan had “displayed a significant negative work attitude as well as disrespectful behaviour to 365 Staff”. That behaviour was said to constitute a fundamental breach of the employment contract. Mr McEwan denies that allegation.

14. Effective from 30 November 2016, 365 Site Services stood down Mr McEwan on full pay. Mr McEwan saw this as a breach of the victimisation provision in s 50 of the Anti-Discrimination Act and lodged a further complaint with the President of the Anti-Discrimination Board on 1 December 2016. A decision was due to be made on 5 December 2016 as to whether he should be terminated from his employment. Mr McEwan lodged an application for an interim order with the Tribunal on 1 December 2016. That application was listed for hearing on 7 December 2016.

15. Mr McEwan has not been directed by the President of the Anti-Discrimination Board or the Tribunal to set out the legal basis for his complaint. If his complaints are referred to the Tribunal, it is likely that he will be directed to do so given the legal complexity of the relevant statutory provisions. He may rely on direct and/or indirect discrimination. If direct discrimination, he may choose to rely on the so-called “characteristics extension” in s 49T(2). If indirect discrimination, he will need to identify the “requirement or condition” he says 365 Site Services has imposed. Whether Mr McEwan relies on direct or indirect discrimination 365 Site Services will need to consider whether they rely on any exception or defence.

16. No jurisdictional issue has been raised that would prevent Mr McEwan from making these complaints and 365 Site Services does not appear to dispute that Mr McEwan has responsibilities as a carer as defined in s 49S. He has been the subject of certain treatment in the workplace including action which may result in a decision to terminate his employment. Until Mr McEwan identifies the legal basis for his complaint, it is not possible to make a further assessment of the merits of his complaints.

17. I do not have all the evidence on which the applicant wishes to rely. I have a copy of Mr McEwan’s discrimination complaint and the President’s letter to 365 Site Services seeking a response. I do not have a copy of the victimisation complaint. At the hearing, 365 Site Services provided a statutory declaration from their solicitor, Ms Tiedeman. She provided copies of relevant documents relating to Mr McEwan’s employment history. Mr McEwan provided a further bundle of material as directed including copies of correspondence and emails, minutes of meetings, text messages, photographs and run sheets. 365 Site Services provided a detailed chronology of events.

18. The evidence satisfies me that there is considerable disagreement between 365 Site Services and Mr McEwan as to the appropriateness of his conduct. 365 Site Services allege that Mr McEwan has a negative and disrespectful attitude towards other employees and that the relationship of trust and confidence has broken down. Mr McEwan says he has been bullied and set up by 365 Site Services. I should not attempt to resolve conflicts of evidence at this stage but I am satisfied that there is no longer an effective working relationship between the parties: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

19. There is some room for argument as to the legal merits of Mr McEwan’s complaints, but those matters should not operate as a barrier to the consideration of where the balance of convenience lies.

Balance of convenience

20. Mr McEwan has been suspended on full pay since 1 December 2016. The inconvenience or injury he would suffer if an interim order is not granted is that he is likely to be dismissed. He asserts that if he loses his job, that would cause significant disruption and hardship to him and his family. He did not provide any evidence of his family’s income or assets or the prospects of him obtaining other employment. While Mr McEwan will inevitably suffer some financial loss if an interim order is not granted, I am unable to determine the extent of that loss or whether it will result in financial hardship.

21. If a stay is refused and Mr McEwan’s complaints are determined in his favour, 365 Site Services conceded that the Tribunal has power to order that he be re-employed. That concession is supported by the Supreme Court’s decision in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 which held that the general power to “order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant” includes power to reinstate the complainant: AD Act, s 108(2)(c). The Tribunal also has power to order 365 Site Services to pay Mr McEwan damages by way of compensation for any loss or damage suffered by reason of any discriminatory conduct: AD Act, s 108(2)(a). That compensation potentially includes lost wages.

22. From 365 Site Services’ point of view, if an interim order is granted they will have to keep paying Mr McEwan “pending the determination of the matter the subject of the complaint”: AD Act, s 105. The options if an order is granted are to direct that he continue being suspended on full pay or that he be reinstated to his position. While I have power to order that 365 Site Services allow Mr McEwan to continue working, the relationship of trust and confidence has broken down. In those circumstances I am satisfied that it is not fair to 365 Site Services to direct them to allow Mr McEwan to continue working, even on a temporary basis.

23. It may take several months for the complaints to be finally determined. If Mr McEwan remains suspended on full pay, 365 Site Services will not have the benefit of his labour. Because they are a small business, 365 Site Services say they could not afford to employ another employee in addition to Mr McEwan. No details of their financial situation were provided.

Conclusion

24. If an interim order is refused and Mr McEwan substantiates his complaint, it is likely that he will be compensated for lost wages and for loss of the chance to derive income from employment with 365 Site Services in the future. Depending on the state of the employment relationship, an order may be made to reinstate Mr McEwan to his position. On the other hand, if an interim order is granted and Mr McEwan does not substantiate his complaint, 365 Site Services will not be able to recover the wages paid to him in the meantime. For those reasons, the balance of convenience lies with 365 Site Services.

Orders

Mr McEwan’s application for an interim order prohibiting 365 Site Services Pty Ltd from terminating his employment pending further order of the Tribunal, is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 December 2016