Mifsud v Skye Childrena**s Co-operative Ltd

[2007] FMCA 914

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MIFSUD v SKYE CHILDREN'S CO‑OPERATIVE LTD [2007] FMCA 914

INDUSTRIAL LAW – Application for reinstatement pending trial – operation of s.280 Workplace Relations Act 1996 (Cth) – balance of convenience against granting interim relief sought by applicant.

Workplace Relations Act 1996 (Cth), ss.280, 318, 319, 320

Applicant: SIMONE MICHELLE MIFSUD

Respondent: SKYE CHILDREN'S CO-OPERATIVE LTD

File number: MLG 695 of 2007

Judgment of: Burchardt FM

Hearing date: 7 June 2007

Date of last submission: 7 June 2007

Delivered at: Melbourne

Delivered on: 7 June 2007

REPRESENTATION

Counsel for the Applicant: Mr P. Hull

Solicitors for the Applicant: Peter Hull & Associates

Counsel for the Respondent: Mr R. Dalton

Solicitors for the Respondent: Bevan-Rhys James

ORDERS

1. The proceedings shall be the subject of mediation to be held as soon as possible, on or before 22 June 2007, with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court. 

2. The matter be adjourned for directions on 28 June 2007 at 9.30 am. 

3. The matter be listed for final hearing on 30 August 2007 10.00 am with an estimated hearing duration of 2 days. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 695 of 2007

SIMONE MICHELLE MIFSUD

Applicant

And

SKYE CHILDREN'S CO-OPERATIVE LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, by an application filed on 28 May 2007, accompanied by an affidavit filed, according to the date stamp, on 28 May 2007, an incongruity that is otherwise inexplicable, the Applicant seeks interlocutory relief which would have the effect of reinstating her to her position of employment as the coordinator of the childcare centre of the Respondent.  The Respondent, it seems common cause, is a body incorporated under the relevant Victorian legislation to provide for non-profit organisations, and in this instance it runs a childcare facility. 

2. It seems common cause that the Applicant went on maternity leave in about September 2006 and it is certainly her case, and I do not know that it is strongly resisted, that she sought to return in due course in about April 2007.  She has not been permitted to do so and the Respondent has purported to dismiss her by letter couriered to her on

   
   

   5 June 2007. The Applicant says there is a serious issue to be tried inasmuch as it is asserted that the facts thus disclosed give rise to a clear contravention of s.280 of the Workplace Relations Act 1996 (Cth) (“the Act”) which provides a guarantee of return to work after maternity leave.

3. There are what might be described as enforcement provisions at s.318 to s.320 of the Act. The Applicant says that the balance of convenience very much favours what would in effect be her reinstatement in the interim. It is put she would suffer irreparable harm if she were not reinstated. She will not, after all, have any income in the interim.

   
   

   By way of contrast, counsel for the Respondent takes issue with the proposition that there is a serious issue to be tried. Amongst other things, counsel says that s.280 can only operate when the employee actually recommences work. Counsel says that s.280 has no work to do if the employer simply refuses to allow the employee to recommence.

4. In my view it is quite clear that there is a serious issue to be tried. The proper construction of this as yet, as far as we are aware, un-litigated section of the Act is certainly open to more than one interpretation and I am quite prepared to assume for present purposes that there is a serious issue to be tried. The difficulty for the Applicant, however, is the balance of convenience. It is notoriously difficult to reimpose the relationship of employment which is, after all, a close one, sometimes described as fiduciary in certain respects if there is friction between the parties. From the affidavit material filed, it is plain that at the very least there is friction of some considerable amount between these parties.

5. It is not appropriate for me to begin to seek to evaluate the force of the competing assertions as to whether the Applicant, Ms Mifsud, has in any way misconducted herself, but it is plain on any view that there is more than one view between the parties about that.  This matter can be heard and listed and it will be determined shortly after the hearing dates on 30 and 31 August 2007.  In my view, in those circumstances it is quite clear that the balance of convenience is against granting the relief sought. 

6. Should it turn out that the Applicant does not make out her case, the Respondent will have been forced to employ her for a period of time that it does not want to employ her for and in respect of which it would have to pay moneys that it cannot recover.  On the other hand, if the Applicant is successful, all her economic loss may be redressed.  Furthermore and I make this plain in the face of this litigation, while the Respondent must act as it feels proper, any further appointments made in the interim are not likely to stand as any sort of bar to any Orders that the Court otherwise thinks appropriate.  For those reasons I am not prepared to grant the interim relief sought. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  7 June 2007