McGowan v RailCorporation, New South Wales

[2006] NSWADT 220

CITATION:	McGowan v RailCorporation, New South Wales [2006] NSWADT 220
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wayne McGowan RESPONDENT RailCorporation, New South Wales
FILE NUMBER:	051119
HEARING DATES:	27/06/2006
SUBMISSIONS CLOSED:	06/27/2006
DATE OF DECISION:	08/01/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Interim Order
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
CASES CITED:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Cardile v LED Builders Pty Ltd [1999] HCA 18 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 NZ v NSW Land and Housing Corporation [2006] NSWADT 126 State of New South Wales v Amery [2006] HCA 14
REPRESENTATION:	APPLICANT E Raper, barrister RESPONDENT C Ronalds, barrister
ORDERS:	That the Applicant remain in his current position as a Non Safety Critical Customer Attendant, Level 2, at St Marys Railway station until the determination of this matter by the Tribunal

1 Wayne McGowan seeks an order under s 105 of the Anti-Discrimination Act 1977 in the following terms:

That the Applicant remain in his current position as a Non-Safety Critical Customer Attendant, Level 2, at St Marys Railway station until the determination of this matter by the Tribunal.

2 Mr McGowan is employed by the Respondent. In September 2003 a medical assessment disclosed that he suffered from a colour vision deficiency known as ‘Moderate Deuteranomaly’. At that time he was based at St Marys train station and his substantive position was Customer Service Agent, Level 2.

3 In October 2004 Mr McGowan was transferred against his wishes to Blacktown railway station where he performed different work to that he had previously been performing. Following the intervention of his union, in April 2005, he was returned to St Marys to perform, what the Respondent describes as a ‘non-safety critical’ role. The Respondent explained that this position was introduced as an interim solution for employees such as Mr McGowan who on testing were found to have a vision deficiency. That position, asserted the Respondent, is a supernumery position. Mr McGowan challenged that characterisation and contends that the position is in all material respects identical to that he held before the Blacktown transfer, but conceded there he was no longer permitted to perform all of the duties of the original position.

4 Following the Blacktown transfer Mr McGowan lodged two complaints with the Anti-Discrimination Board alleging that the Respondent had discriminated against him on the grounds of disability, or perceived disability, in the area of employment. The President of the Board referred those complaints to the Tribunal on 20 September 2005.

5 In March of this year, at the direction of the Respondent, Mr McGowan undertook a further vision assessment of his colour vision. He was advised that he had failed that assessment. On 20 April 2006 he met with Human Resources manager, Ms Janette Kolemeyer and on his account was told:

“You can no longer work as a customer services attendant. RailCorp is restructuring so nothing will happen for a few months. However you should apply for office positions at RailCorp. If you cannot find another position within RailCorp, you will be retired on medical grounds.”

6 By letter dated 28 May 2006 Ms Kolemeyer advised Mr McGowan that:

His rail safety worker’s certificate remained withdrawn.

Permanent employment options were being explored

Master roster payments would cease effective 4 June 2006. [This decision has since been set aside.]

7 Mr McGowan claims that he has become very distressed about what he sees as his uncertain future at RailCorp. He is concerned that if forced to take an office based job, he would lose access to overtime and, as a consequence, struggle to meet his financial commitments. He claimed that if he lost his job or was forced to accept a position that did not offer regular overtime he would be unable to meet his immediate financial commitments, which include house repayments, and that ultimately this might mean that the bank would foreclose on the mortgage.

Section 105

8 Inserted into the Anti-Discrimination Act 1977 (AD Act) as a result of the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004, s 105 provides:

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,

9 Section 105 gives the Tribunal wide discretion to grant an interim order. The AD Act provides no express guidance on how that discretion is to be exercised. This provision was considered in some detail in NZ v NSW Land and Housing Corporation [2006] NSWADT 126. In that decision the Tribunal summarised the principles that have been applied by the courts when granting interlocutory orders and noted the following:

[11]. A court in granting interlocutory relief, should generally grant the minimum relief necessary to do justice between the parties and it should specify the circumstances in which the order will cease to operate: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Gaudron, McHugh, Gummow and Callinan JJ at para 70.

[13] [t]here is no inflexible rule that a prima facie case for final relief must be made out by the applicant for an interlocutory relief in the Courts: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, per Gleeson CJ at para 18.

[15] [t]he power of a statutory court to grant interim injunctive relief should be viewed in the light of the enabling statute …

[16] [w]here the power to grant interim injunctive relief derives from statute, as does the power of the Tribunal to grant interim orders, the statutory power is not to be limited by any limitation which is not strictly required by the language and purpose of the statute conferring the power to make interim orders.

10 The Tribunal also referred to the well-known test 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.

11 Having considered these principles the Tribunal concluded at [17] “[t]hat the limits of its power to grant an interim order are found in the purpose of the Anti-Discrimination Act 1977 and in the wording of Section 105 of the Act itself”.

12 The Applicant submitted that the Tribunal ought be cautious about importing equitable doctrine into s 105 and contended that the extent to which the discretion is fettered is to be found exclusively in the AD Act itself. It is enough, it was submitted, to establish that there is a serious risk that the status quo is threatened.

13 While I accept that the parameters of the Tribunal’s power to make an interim order are to be found in s 105 itself, nevertheless the principles referred to above, in my view, provide useful guidance as to how that discretion ought be applied.

Findings and Conclusions

14 At the request of the parties the Tribunal has deferred listing this matter for final hearing until such time as the matter of Smart v RailCorp 051131 has been determined. This matter is on all fours with the facts that form the basis of Mr McGowan’s complaint. I understand Smart will not be determined for another six months.

15 It is not disputed that in relation to the substantive proceedings the Applicant has an arguable case. The Respondent submitted, however, that the orders sought ought not be granted because Mr McGowan has not shown he will suffer irreparable damage; the order sought is too wide and, for example, would prevent the Respondent terminating Mr McGowan’s employment for any reason; and, the orders are at odds with the relevant enterprise agreement.

16 The Respondent advised at hearing that a staff ballot was underway, the outcome of which would determine whether a proposal to restructure RailCorp (‘Station Reform’) would be adopted. The Respondent submitted that if Station Reform was implemented the orders sought by Mr McGowan would effectively quarantine him from the across-the-board restructure proposed by Station Reform, and, in effect, make him a “protected species”. After the hearing the Respondent notified the Tribunal that the ballot had been lost and Station Reform would not be proceeding. Accordingly, it is not necessary to consider the submissions on this point.

17 Application premature The Respondent contended that Mr McGowan’s application is premature because he continues in the Modified Position he has held since April 2005 and has not, as he feared, been made redundant or medically retired. To date the only thing that has happened, contended the Respondent, is that Mr McGowan has been advised that he should consider alternative employment. This advice, it is argued, cannot be elevated to anything more than “career counselling”.

18 While the Respondent is correct that no action has been taken to terminate Mr McGowan’s employment, his uncontradicted account of his meeting with Ms Kolemeyer reveals that he was told he could no longer work as a customer services attendant and while nothing will happen for “a few months” he will be retired on medical grounds unless he manages to find alternative employment.

19 Prior to this conversation the status quo concerning Mr McGowan’s employment with the Respondent was that he held the substantive position of customer services attendant, albeit carried out in a modified role. What has changed is that he has now been directed or encouraged to find alternative employment if he is to continue with RailCorp and advised that if he fails to do so his days with the Corporation are numbered.

20 It seems to me that as a consequence of that meeting the status quo between the parties has been disturbed. Mr McGowan has been notified in plain language that to maintain his employment with RailCorp he must take steps to find alternative employment. On the evidence before me there is nothing to indicate that this had previously been a condition of his continued employment.

21 But in any event it seems to me that to fall within s 105(1)(a) it is not necessary for a complainant to establish that the status quo actually has been disturbed. The test in my view is not set that high. Rather it is enough that it be established that there is a real and material risk that this might occur. I am satisfied on the evidence thus such risk exists in this case.

22 Accordingly I am satisfied that an interim order is necessary to preserve the status quo between the parties. Having made that finding I will proceed to consider whether the circumstances of this case warrant an exercise of the discretion granted under s 105.

Irreparable Damage

23 Mr McGowan’s evidence is that his family’s finances are precariously balanced. I accept his claim that if he were to lose his current position, or take an alternative position where overtime was not paid, in the short-term at least he might be unable to meet his loan commitments and as a consequence could lose his home.

24 If that were to eventuate damages would not, in my view, represent adequate compensation.

Balance of convenience

25 The Respondent contended that if the proposed order is granted it will suffer prejudice as its ability to make operational and staffing decisions will be restricted.

26 The Respondent also contended that the effect of the proposed order would be to cut across the provisions of the enterprise agreement which governs the terms and conditions of Mr McGowan’s employment and should not be granted on that basis.

27 Clause 38.7 of the RailCorporation New South Wales Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 provides:

Where an employee is determined by medical advice as permanently unfit for their normal duties, the Employer will attempt to place the employee into a suitable alternate position and the employee will thereafter be paid the rate of pay of the position into which they have been placed. Alternatively, if no suitable alternate positions are available, medical retirement procedures will commence…

28 The Respondent submitted that it is not open to the Tribunal to step in and interfere with the operation of this provision citing in support the decision of Gleeson CJ in State of New South Wales v Amery [2006] HCA 14 at [5] to [15], in particular the following:

[The Department of Education] does not need to justify the Act [ Teaching Services Act 1980(NSW) ], with its distinction between permanents and casuals, or the differing statutory incidents attaching to the status of permanent or casual, or, in particular, the amenability of permanent officers to relocation. That is the work of Parliament, not the Department. Nor does it need to justify the award, which is the work of the Industrial Relations Commission and, no doubt, the outcome of industrial interaction involving different interest groups within the teaching service.

29 It is not clear to me how Amery is relevant in the context of this application. If what is being argued is that the Respondent would be entitled to redeploy Mr McGowan under the Enterprise Agreement and or in compliance with its obligations under health and safety legislation then that is a matter which goes to the merits of the complaint and not one for determination at this stage. The issue here is not whether the decision to move Mr McGowan to Blacktown or whether the option of redeployment or retirement provided for under the Enterprise Agreement constitutes unlawful discrimination. Nor is the issue the interplay between Clause 38.7 of the EA and s 54 of the Act. Rather the issue is whether this is an appropriate case to exercise the discretion granted by s 105 of the AD Act to order that the status quo be preserved until the merits of Mr McGowan’s complaints of unlawful disability discrimination have been determined.

30 If the order sought is granted the Respondent’s managerial prerogative will be interfered with and I accept that as a consequence it will suffer some prejudice. However given the size of its workforce and the nature of the position now held by Mr McGowan together with the relatively short time these orders can be expected to be in force I am not satisfied that the ‘balance of convenience’ favours the Respondent in this case.

31 For these reasons I have decided to exercise my discretion to grant the application sought.

Orders

That the Applicant remain in his current position as a Non-Safety Critical Customer Attendant, Level 2, at St Marys Railway station until the determination of this matter by the Tribunal.