Murray v The Peninsula School

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FEDERAL COURT OF AUSTRALIA

Murray v The Peninsula School [2015] FCA 447

Citation: Murray v The Peninsula School [2015] FCA 447
Parties: WAYNE MURRAY v THE PENINSULA SCHOOL and STUART JOHNSTON
File number: VID 242 of 2015
Judge: MURPHY J
Date of judgment: 12 May 2015
Catchwords: INDUSTRIAL LAW – injunctions – interlocutory injunctions – interim injunctions – preserving the subject matter of the litigation
Legislation: Fair Work Act 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic)
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525
Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218
Date of hearing: 8 May 2015
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicant: Mr N Harrington
Solicitor for the Applicant: Maurice Blackburn
Counsel for the Respondents: The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 242 of 2015
BETWEEN:

WAYNE MURRAY
Applicant
AND:

THE PENINSULA SCHOOL
First Respondent

STUART JOHNSTON
Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

8 MAY 2015

WHERE MADE:

MELBOURNE

UPON THE UNDERTAKING of the Independent Education Union by its counsel:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

(b)to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from dismissing the Applicant from his employment with the First Respondent.

2.Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from subjecting the Applicant to the disciplinary process outlined in the First Respondent’s letters dated 6 and 7 May 2015.

AND THE COURT NOTES:

The solicitors for the Applicant are directed to urgently serve this order upon the Respondents, and to confer with the solicitors for the Respondents in an endeavour to agree as to the return date for hearing of the Applicant’s claim for interlocutory relief.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 242 of 2015
BETWEEN:

WAYNE MURRAY
Applicant
AND:

THE PENINSULA SCHOOL
First Respondent

STUART JOHNSTON
Second Respondent

JUDGE:

MURPHY J

DATE:

12 MAY 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This proceeding was commenced by way of Originating Application on 8 May 2015 and it came before the Court in an urgent application for interlocutory relief the same day.  The applicant, Wayne Murray, is employed as an Audio Visual…

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Details
Case
[2015] FCA 447
Decision Date

CaseChat Overview and Summary

The Federal Court was asked to consider an application by Mr Murray, who was seeking an injunction against his employer, The Peninsula School, to prevent his dismissal and to halt the disciplinary process against him. The school had accused Mr Murray of serious misconduct, including sending confidential information to his personal email account and inciting others to campaign against the school. The school's principal, Mr Johnston, had informed Mr Murray that his employment could be terminated immediately but gave him until 2:00 pm on Friday, 8 May 2015, to respond to the allegations. Mr Murray sought an injunction to prevent his dismissal and to halt the disciplinary process while his case was being heard.

The court was required to decide whether Mr Murray had established a serious question to be tried and whether the balance of convenience favoured granting the injunction. The court also needed to consider whether Mr Murray's application met the criteria for an interlocutory injunction, specifically that the subject matter of the litigation was at risk of being lost or significantly prejudiced if the injunction was not granted.

The court found that Mr Murray had established a serious question to be tried regarding whether he had breached his employment contract and whether his actions warranted dismissal. The court also found that the balance of convenience favoured granting the injunction because Mr Murray's employment was at risk of being terminated without proper consideration of his response to the allegations. The court was satisfied that the criteria for an interlocutory injunction had been met, as the subject matter of the litigation was at risk of being lost or significantly prejudiced if the injunction was not granted.

The court made an order restraining the school from dismissing Mr Murray or subjecting him to the disciplinary process until further order of the court. The court directed Mr Murray's solicitors to serve the order on the school and to confer with the school's solicitors to agree on a return date for hearing Mr Murray's claim for interlocutory relief.

Orders

Orders of the court

1. Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from dismissing the Applicant from his employment with the First Respondent.

2. Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from subjecting the Applicant to the disciplinary process outlined in the First Respondent’s letters dated 6 and 7 May 2015.

AND THE COURT NOTES:

The solicitors for the Applicant are directed to urgently serve this order upon the Respondents, and to confer with the solicitors for the Respondents in an endeavour to agree as to the return date for hearing of the Applicant’s claim for interlocutory relief.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Johnson also gave Mr Murray a letter from the school dated 6 May 2015 which stated:Dear WayneYOUR CONDUCTThank you for meeting with us today.The purpose of this meeting is to discuss some serious issues which have recently come to our attention regarding your recent conduct.At this stage, our preliminary view is that you have engaged in serious misconduct in breach of your employment contract which could warrant the immediate termination of your employment. However, before we make a decision regarding your ongoing employment with The Peninsula School, we would like to provide you with an opportunity to respond to the matters set out below.BackgroundIt has come to our attention that:Ÿover the course of the past seven months, you have sent a number of emails to a list of undisclosed recipients which contain content that incites others to engage in a coordinated campaign against both The Peninsula School and me;Ÿon 26 March 2015 at 3:58 pm, you sent confidential information in the form of a PDF document named “260132015155113-00001.pdf” which included names and dates of staff departures from 2005 to present, to your personal Gmail account (wmurray206@gmail.com);Ÿyou have incited other employees of The Peninsula School to behave in contravention of our Core Values, Codes of Conduct and The Peninsula School Way via emails between you and a list of undisclosed recipients (who, we reasonably believe, include current and past employees, in addition to other external parties) between 7 October 2014 and 23 April 2015;Ÿyou have incited others to release information to a media journalist in contravention of our Core Values, Code of Conduct and The Peninsula School Way via emails between you and a list of undisclosed recipients (who, we reasonably believe, include current and past employees, in addition to other external parties) between 7 October 2014 and 23 April 2015.Our concernsThe conduct outlined above is very concerning and completely unacceptable.We are of the view that you have engaged in serious misconduct in breach of your employment contract because you have:1.wilfully and deliberately engaged in conduct which deeply offends our values and breaches your duties of confidentiality and good faith to act in the best interests of The Peninsula School which is inconsistent with the continuation of your employment; and2.caused a serious and imminent risk to the reputation and viability of The Peninsula School.Next stepsBefore we make a final decision with respect to your ongoing employment, we now invite you to provide us with an explanation for your conduct and a response to our concerns.Yours faithfullyStuart JohnstonPrincipal Mr Murray declined to provide an explanation to Mr Johnston at that time, having earlier been advised that he would be given time to consider the allegations made against him. Mr Johnston said the matters under discussion warranted immediate dismissal but that he would give Mr Murray until 2.00 pm on Friday, 8 May 2015 to provide his response. Mr Murray said that a decision would be made, at that time, regarding Mr Murray’s ongoing employment at the school.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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