National Tertiary Industry Union v University of Technology Sydney
[2014] FCCA 1243
•17 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NATIONAL TERTIARY INDUSTRY UNION & ANOR v UNIVERSITY OF TECHNOLOGY SYDNEY | [2014] FCCA 1243 |
| Catchwords: PRACTICE & PROCEDURE – Injunction – interlocutory injunction – whether the application raises a prima facie case – whether the balance of convenience favours the grant of the interlocutory injunction. |
| Legislation: Fair Work Act 2009, ss.340, 341, 346, 347, 361, 545 |
| Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Gregory v Phillip Morris (1988) 24 IR 397 Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298 Mastramanno v Temanda Pty Ltd [2014] FCA 445 Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627; (2000) 100 IR 383 Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 Independent Education Union v Geelong Grammar School [2000] FCA 557 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1991) 12 CAR 167 Dubow v Aboriginal and Torres Strait Islander Legal Service [2013] FCCA 1357 Stevedores Operations No 2 Pty Ltd v Maritime Union Australia (No 3) (1998) 195 CLR 1 Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 286 ALR 257 Police Federation of Australia v Nixon (2008) 168 FCR 340 Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 Pelecanos v Brisbane Marine Pilots Pty Ltd [2014] FCA 294 |
| Applicant: | NATIONAL TERTIARY INDUSTRY UNION |
| Second Applicant | SIMON WADE |
| Respondent: | UNIVERSITY OF TECHNOLOGY SYDNEY |
| File Number: | SYG 1272 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 14 , 21 and 27 May 2014 |
| Date of Last Submission: | 27 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr I Latham |
| Solicitors for the Applicants: | National Tertiary Industry Union |
| Counsel for the University: | Mr I Taylor SC |
| Solicitors for the University: | Minter Ellison |
ORDERS
The application for interim relief made on 13 May 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1272 of 2014
| NATIONAL TERTIARY INDUSTRY UNION |
First Applicant
| SIMON WADE |
Second Applicant
And
| UNIVERSITY OF TECHNOLOGY SYDNEY |
Respondent
REASONS FOR JUDGMENT
The National Tertiary Industry Union (“the first applicant” and the “NTIU”) and Mr Simon Wade (“the second applicant” and “Mr Wade”) made an application on 13 May 2014 under the Fair Work Act 2009 (Cth) (“the FWA”) alleging a contravention of a general protection by the University of Technology Sydney (“the respondent” and “the University”). In particular, the applicants allege that the University has taken “adverse action” against Mr Wade in contravention of s.340 of the FWA. Further, or in the alternative, that the University took adverse action against Mr Wade in contravention of s.346 of the FWA. These allegations stem from the University’s alleged conduct up to, and including, the termination of Mr Wade’s employment on 8 May 2014.
The applicants seek interim relief “essentially in the form of reinstatement [of Mr Wade to employment] pending further hearing” (see applicants’ written submissions at [1]). This was refined at the hearing of the interlocutory application on 21 May 2014, as reinstating Mr Wade to the “situation” that he was in prior to the termination of his employment, namely to be employed but to remain suspended from duty on full pay. The University resists this application.
The interim application first came before the duty Judge of this Court on 14 May 2014. An adjournment was granted to allow the University to file evidence in relation to the interim relief sought, as the University had been served earlier that day. The matter came before the Court on 21 May 2014, with the refinement noted above. As such, the University sought and was granted a further adjournment to bring evidence in relation to the newly articulated relief sought. The matter was relisted for hearing on the interim application on 27 May 2014.
Relevant Legislative Regime
Section 340 of the FWA is in the following terms:
“340 Protection
(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.
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.”
Section 341 of the FWA defines a “workplace right”:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).”
Section 346 of the FWA is in the following terms:
“346 Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).”
“Engages in industrial activity” is defined at s.347 of the FWA as follows:
“347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
(c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request made by, or requirement of, an industrial association; or
(f) takes part in industrial action; or
(g) makes a payment:
(i) that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division.”
Evidence Before the Court
The evidence before the Court from the applicants is as follows:
1)The affidavit of Mr Simon Wade made on 12 May 2014 (“the first Wade affidavit”) (no objection).
2)The affidavit of Ms Genevieve Kelly, NSW State Secretary of the NTIU, made on 13 May 2014 (“the first Kelly affidavit”) (no objection).
3)The affidavit of Ms Genevieve Kelly made on 20 May 2014 (no objection).
4)The affidavit of Mr Simon Wade made on 20 May 2014 (“the second Wade affidavit”) (no objection).
The evidence before the Court from the University is as follows:
1)The affidavit of Mr Frank Strbik, Senior Workplace Relations Specialist, made on 19 May 2014 (“the first Strbik affidavit”) (no objection).
2)The affidavit of Ms Ngaire Jane O’Leary, Audio Visual Services Campus Manager, made on 19 May 2014 (“the first O’Leary affidavit”) (no objection).
3)The affidavit of Ms Kathleen Deirdre Grattan, Audio Visual Client Services Manager, made on 19 May 2014 (admitted, [9](d) and [10] not read).
4)The affidavit of Ms Anne Dwyer, Deputy Vice-Chancellor, and Vice-President (Corporate Services) of the University, made on 21 May 2014 (no objection).
5)A number of exhibits:
i)RE1 – A bundle of correspondence between the parties.
ii)RE2 – An “email publication” of the NTIU.
iii)RE3 – A “print out from the NTIU’s website”.
Following the “change” in the applicants’ explanation of the interim relief sought, the University filed and served the following affidavits (with leave):
1)The affidavit of Ms O’Leary made on 26 May 2014 (“the second O’Leary affidavit”) (no objection).
2)The affidavit of Ms Grattan made on 26 May 2014 (“the second Grattan affidavit”) (no objection).
3)The affidavit of Ms Kathy Jane Russell made on 26 May 2014 (Objection to [16] – evidence admitted).
4)The affidavit of Mr Strbik made on 26 May 2014 (“the second Strbik affidavit”) (no objection).
Both parties provided written submissions on 21 May 2014. The University provided supplementary written submissions on 27 May 2014.
Background
The applicants allege that the University took adverse action against Mr Wade “on a number of occasions culminating in the termination of [Mr Wade’s employment] with immediate effect” (see applicants’ written submissions at [7]). Mr Wade had been suspended from duty on full pay from 10 December 2013 (see annexure “SW12” to the first Wade affidavit). Mr Wade’s employment was terminated by letter received by him on 8 May 2014 (see first Wade affidavit at [25] and annexure “SW20”).
The applicants submitted that the termination of Mr Wade’s employment was as a result of the various industrial activities he undertook, and a complaint he made against his (former) supervisor, Ms O’Leary, an employee of the University. They allege that this latter matter was also an exercise of his workplace rights.
The University submitted neither of these were reasons for the termination of the employment. Rather, the University asserts that the reason for the termination of Mr Wade’s employment was the multiple acts of misconduct on the part of Mr Wade which included multiple acts of dishonest and fraudulent conduct. The University referred to an “external investigation” into this alleged conduct, conducted by a former Commissioner of the Australian Industrial Relations Commission, which involved “evidence from witnesses on statutory declaration who were cross-examined by advocates appearing for the parties” (see the University’s written submissions of 21 May 2014 at [11] and the first Wade affidavit at annexure “SW19” for the investigator’s conclusions).
There is no apparent dispute between the parties as to the following. Mr Wade was at all material times employed by the University as an audio visual technician. He was an employee for the purposes of the FWA. The University is an employer for the purposes of the FWA.
At all material times Mr Wade was a member of the NTIU which was (and is) an industrial association for the purposes s.346 of the FWA. Mr Wade, at all material times, engaged in “industrial activity” for the purposes s.347 of the FWA.
That activity was generally as a result of his holding an office of the NTIU (“Branch President” of the “NTEU UTS Branch”). He was therefore an officer of an industrial association for the purposes of s.346(a) of the FWA.
As part of his representation of the members of the NTIU, Mr Wade was, on 20 June 2013, appointed as a representative of the NTIU in enterprise bargaining negotiations with the University. In this regard he was engaged in industrial activity for the purposes of s.347 of the FWA.
The Issue
The issue before the Court now is whether the interim relief sought by the applicants (as now explained) should be granted. In effect, that Mr Wade be “restored” to his employment, albeit remaining on suspension of duties, pending the final resolution of the substantive application before the Court.
The Test for Interim Relief and Consequent Matters: The Parties’ Submissions
The applicants accepted that an application for interim relief in circumstances where one party has acted to terminate the employment relationship with the other is “not ordinarily granted”. However, they submitted that that is not the “invariable” rule (Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 (“Paras”)).
The applicants also submitted that it is for the Court to exercise its discretion in each case and according to its individual circumstances. Further, that while there is a “reluctance” by the Courts to order specific performance of a contract of employment (see Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, Gregory v Phillip Morris (1988) 24 IR 397 and Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298), there has been a “softening” of this reluctance in ordering specific performance, or expressing an injunction in terms which, although negative in form, have a positive effect (see applicants’ submissions at [11] and Mastramanno v Temanda Pty Ltd [2014] FCA 445 (“Mastramanno”) at [16] per Jessup J and Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627; (2000) 100 IR 383 at [55] per Gray J).
Further, that the “non-pecuniary attributes” of employment should influence the Court’s exercise of discretion, including factors such as “reputation”, the effect of the workplace providing “purpose, dignity, pride, enjoyment, social acceptance and many social connections” (see applicants’ submissions at [13] – [14]).
Their position was also that further relevant factors may include the duties, or seniority, of the employee. This would require consideration of the actual circumstances of each case. The applicants provided examples, such as, the type of relief they seek may be “easier” to grant in the case of a “lower grade worker” who is returned “with little impact” on the ongoing welfare of the employer (Mastramanno at [22]).
The applicants, fairly, concede that on the other hand what would be “strongly telling against” the grant of the relief sought is evidence that the “continuing presence” of Mr Wade is “so distracting” that the University’s employees could not perform their functions (see the applicants’ written submissions at [16] and Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382).
The applicants stress that reinstatement to employment is a remedy available if the applicant were to succeed in his substantive claim pursuant to s.545 of the FWA and that “…in the ordinary case, reinstatement is the appropriate remedy” (see the applicants’ written submissions at [18] and Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34]).
The University submitted that the applicants’ submissions as to the law were essentially correct, with some additions. In particular, that interlocutory relief was an “adjunct” to the substantive relief sought in an action (see the University’s written submissions of 21 May 2014 at [3]). That is, the “strength of the serious question to be tried” relates to the “likelihood” of the grant of final relief in the terms sought on an interlocutory basis.
I understood this to be relevant as follows. Essentially, that, should the applicants be successful at the final hearing the likelihood of the Court granting relief in the form of reinstatement of Mr Wade needs to be considered in any interim application. In that light the University submitted it would be unlikely in the current circumstances that that relief would be granted, given the evidence of the “breakdown” in the relationship between Mr Wade and the University (including other relevant key employees).
The University submitted that “reinstatement as final relief will only be ordered where the necessary relationship of trust and confidence can be re-established” (see the University’s written submissions of 21 May 2014 at [4] and Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1991) 12 CAR 167 and Dubow v Aboriginal and Torres Strait Islander Legal Service [2013] FCCA 1357).
Further, and in addition, the Court, in its exercise of the discretion to grant interim relief, should consider the impact on third parties (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union Australia (No 3) (1998) 195 CLR 1 at [69] per Gaudron J). Even further, that the Court would be required to consider whether “irreparable harm” would be caused to the applicants if the interim relief was not granted and the adequacy of damages as an alternative remedy (Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 286 ALR 257 (“Samsung”) at [63]).
Finally, that the “apparent strength of the parties’ case will often be a factor to be weighed in assessing the balance of convenience” (see the University’s written submissions of 21 May 2014 at [3] and Samsung).
Prima Facie Case
The applicants submitted that the prima facie case in these proceedings is “strong” as there is a “clear conjunction of union activity and adverse action” (see applicants’ written submissions at [19]). The applicants submitted that the University was subject to an industrial instrument which provided for some reasonable adjustment to work duties and the hours spent on them (at “paid time”) to accommodate the performance of union activities (see annexure “SW3” to the first Wade affidavit).
Further, that the University had “expressly agreed that resourcing would be available to cover staff attending formal bargaining meetings” (see applicants’ written submissions at [19] and annexure “SW4” to the first Wade affidavit).
The applicants submitted that the University specifically required Mr Wade to “perform work at a level commensurate of that of his
co-workers” (see applicants’ written submissions at [19] and with reference to annexure “SW6” to Mr Wade’s affidavit). That is, no allowance was made so that Mr Wade could attend to the industrial activity to which he was entitled.
Further, that the Court in the exercise of its discretion, should consider the effect of s.361 of the FWA. The applicants noted the reverse onus it contains. Section 361(2) clearly states that s.361(1) of the FWA does not apply in relation to interim relief. The applicants submitted, however, that despite s.361(2) of the FWA, a similar situation was considered by Justice Gray in Police Federation of Australia v Nixon (2008) 168 FCR 340 at [69] where his Honour relevantly said that the Court could have “regard to the availability of the presumption in the final determination of the application” in assessing if there was a serious question to be tried.
The University did not argue that the applicants do not have a “prima facie” case. However, it submitted that the strength of the case for “reinstatement” is weak, therefore there is a “proper basis to find it is impracticable” to order interim relief in that form. Further, the University relied on the affidavit evidence that the working relationship between Mr Wade and the University had “completely broken down” (see especially the first Strbik affidavit, both O’Leary affidavits and both Grattan affidavits).
Balance of Convenience
The applicants argue that the “injury likely to be suffered” by the applicants is such that it could not be remedied by payment of damages therefore the balance of convenience is in their favour. The damage to the NTIU is described as the “significant and [adverse] affect” to the union in the “bargaining process”. The damage to Mr Wade is described as “significant and irreparable harm” through the loss of his “longstanding employment”, ability to obtain other employment, and that he will be “effectively excluded from his current elected positions”. That is, he will be unable to seek re-election to his current elected position of President of the NTEU UTS Branch and other positions (see Ms Kelly’s affidavit of 13 May 2014 at [17] and see below).
The University argued that the balance of convenience falls in the University’s favour. It submitted that the NTIU had already taken steps to replace Mr Wade, on an interim basis, in the positions of Branch President and negotiator. Therefore, there will not be any impact on any enterprise agreement bargaining.
In relation to the “irreparable harm” faced by Mr Wade, the University submitted that any such harm can only be addressed at a final hearing. Even further, that as Mr Wade had received “37 weeks pay on termination” he will not face “economic loss” pending the final hearing (see below). Further, that as the University’s position is that reinstatement would be “unlikely” given the circumstances of the relationship between Mr Wade and the University, and some of its employees, damages will be an adequate remedy.
As to the inability of Mr Wade to seek re-election to his current union position, the University relied on the bundle of correspondence, tendered on 21 May 2014 (marked as RE1), to submit that the NTIU confirmed that Mr Wade could remain a member of the NTIU, remain Branch President of the NTEU UTS Branch, and is eligible for
re-election as Branch President.
Further, that the “assertions” in the affidavits of Mr Wade and Ms Kelly that Mr Wade could not stand for the position of NSW Division Executive, NSW Division Council and National Council, although asserted in the correspondence at RE1, were incorrect (see the University’s written submissions of 21 May 2014 at [27] ‑ [28] and further below).
The University also submits that the “prejudice” suffered by the University would include the affect on third parties, in particular Ms O’Leary and Ms Grattan (Mr Wade’s (former) immediate supervisor and manager). Further, that other staff members have stated that they “do not know how they could continue as team members if Mr Wade were to be reinstated” (see the first O’Leary affidavit at [44] – [45]).
Even further, that as the University alleges that the termination of the employment of Mr Wade was in circumstances where findings of “serious misconduct” had been made there would be a “prejudicial effect on the morale and attitude” of the team directly working with Mr Wade, and on the University “more generally” (with reference to the first Grattan affidavit at [27] and first O’Leary affidavit at [48]).
The University submitted that this would still be the case following the “amendment” of interim relief sought, as the reinstatement to a position of suspension would also have a similar negative effect. It relied on the evidence outlined in the affidavits filed on 26 May 2014, in particular the second O’Leary affidavit and the second Grattan affidavit.
Consideration
The elements of the test, as outlined above, for an “interlocutory injunction” involve whether the applicants seeking such relief are able to demonstrate a prima facie case for the relief sought in the substantive, or principal, proceedings, the strength of that case, and the balance of convenience as between the parties in the context of whether the “injunction” is granted or not granted. [In this case the (interim) order to reinstate to employment.]
As stated above, the applicants accept that the interim relief they seek, in this particular jurisdiction, faces difficulty in that the interlocutory “injunction” they seek would not ordinarily be granted to “continue” an employment relationship where one party has acted to terminate it. Nonetheless, they argue that the circumstances found in this case are such that the relief should be granted in the exercise of the Court’s discretion.
Prima Facie Case
As stated above, the parties agree that a prima facie case does exist. They disagree as to the strength of such a case. The applicants describe the prima facie as “strong”, and the University describes it as “weak”.
As set out above, to support their position the applicants say that the adverse action taken by the University was clearly in circumstances involving union industrial activity. In this regard the focus on Mr Wade is that he was involved in enterprise bargaining, and other related activities, and the University expected that he perform work commensurate with his co-workers while it was subject to an industrial agreement that provided that union representatives (such as Mr Wade) were entitled to “time off” to conduct the union activities.
I agree with the applicants that that is one element in favour of the applicants’ prima facie case.
A further element in the applicants’ favour derives from the appropriate way that the Court can have regard to the “reverse onus” imposed by s.361 of the FWA.
It is clear that the Court cannot apply s.361 of the FWA in relation to the orders for the interim injunction sought. However, as the applicants say (with reference to authority), the Court can take into account, at this stage, the availability of that section and the presumption it creates in terms of assessing the ultimate strength of the applicants’ case and what that may say about the strength of the prima facie case.
The University submitted that the prima facie case is weak because of the findings made against Mr Wade of “serious misconduct” by the “external investigator”. That is certainly an element that in the ultimate consideration would not weigh in favour of the applicants. On its own, this goes to the University’s proposition that termination of employment was for that reason alone and not the industrial activity.
This is to be balanced, however, by the “reverse onus” stated above and the relevant authorities. The University ultimately would need to show, on balance, that Mr Wade’s industrial activity on behalf of the members of the NTIU was not “a reason” for the termination of Mr Wade’s employment (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32).
I accept the applicants’ argument that this is relevant to assessing the strength of the prima facie case now. However, as the University submits, that does not necessarily mean that reinstatement to employment would be ordered as an appropriate relief even if the applicants were to succeed at the final hearing.
It must not be forgotten that when considering the question of a prima facie case some reference to the relief sought by the applicant and to which the prima facie case relates is required. Here, amongst other things, the applicants seek, ultimately, the “reinstatement” of Mr Wade to his position of employment at the University. This is essentially, albeit “maintaining” the situation of suspension, the very relief they seek now.
When seen in this light, the relevant evidence from various witnesses from the University, although untested by cross examination, strongly supports its proposition now that even if the applicants were to succeed at the final hearing, the likelihood that the Court would order reinstatement is low.
This is not to say that the Court has come to any final view about this issue. That must await the final hearing. However, the relief now sought by the applicants requires some view to be reached about the applicants’ prima facie case.
To the extent that that case ultimately seeks the reinstatement of Mr Wade, then the applicants have not, on balance, discharged the onus that falls on them now to show that a prima facie case, linked to that outcome is of sufficient character to weigh in their favour. I agree that on balance, at this stage, the applicants’ prima facie case for reinstatement is “weak”.
In all, therefore, there are clearly some “positive” elements for the applicants in relation to the issue of the prima facie case such that it cannot be said that that case is hopeless, bound to fail or even that there are no reasonable prospects of success. However, I am of the view it is not such, on its own, as to determine, or even to provide weight to, the applicants’ current request in their favour.
Balance of Convenience
In my view, for the reasons that follow, the balance of convenience falls in favour of the University on the evidence currently before the Court, and, as such, further tips the disposition of the interim relief in the University’s favour.
As a general introduction to this part of the consideration I should note that I am generally guided by the approach taken by the Federal Court in the disposition of disputes such as the current one.
In particular, I note I was taken to Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 (“Russell”) (see especially at [80] – [82] per Foster J) and Pelecanos v Brisbane Marine Pilots Pty Ltd [2014] FCA 294 (“Pelecanos”) (see especially at
[12] – [14] per Rangiah J). I note the differences in the factual scenarios in those cases and the current case. Nonetheless, it is possible to respectfully, and relevantly, draw from those cases that, where available on the evidence, the state of the relationship between the employer, and including at least some of its employees and executives, and the former employee, may be a factor that “militates” (Russell at [79]) against “reinstatement on an interlocutory basis” (Pelecanos at [13]).
In the current case the parties have identified a number of matters they respectively contend favour them in tipping the balance in the disposition of the interlocutory application.
As stated above, the applicants’ position is that the University’s action has caused and would have caused significant damage, for different reasons, to both the applicants.
As set out above, in relation to Mr Wade the assertion is that he will suffer “irreparable harm” because of the loss of his long standing employment in light of the findings of serious misconduct with the resultant loss of employment, and that he will, as a result of the termination of this employment, be “effectively” excluded from his elected positions with the NTIU. Further, that he will face some financial difficulty.
In this latter regard, the evidence before the Court is that on 22 May 2014 Mr Wade received the equivalent of “37 weeks pay” as a “termination payout” (see the first Strbik affidavit). His “income”, in a practical sense, therefore will continue for a period of about nine months from the date of termination. There is, therefore, no immediate financial injury to Mr Wade in these circumstances.
However, nor is the University in any worse position particularly if these proceedings were to conclude, one way or the other, within that time period. I note that both parties have indicated their readiness to proceed to a final hearing within that period.
In this light, the University’s argument that, if the applicant were to be reinstated, another person would need to be employed and paid to perform the duties of Mr Wade’s position as he would remain on suspension, does not alter the fact that having paid Mr Wade for that period (through the pay at termination), the financial outlay to Mr Wade is the same no matter what the disposition of the application for the interim relief.
I note the University’s concern that reinstatement on an interim basis may mean that the applicant retain his “37 week” termination “payout”, and then the University would also be obliged to pay his salary for the “interim” period. That issue could of course be addressed at the time, if appropriate, of the making of any order in favour of Mr Wade. The applicants say that if Mr Wade were to be reinstated after the final hearing, he would lose leave, long service and other entitlements through the action of the University and the “37 week payout”. As the conclusion I have reached in these interim proceedings, on all the other factors raised is that Mr Wade should not be reinstated, this issue falls away (see below).
The applicants made submissions, generally, about the impact on Mr Wade of the loss to him of the benefits of employment. They listed a number of such benefits (see above).
To the extent that those benefits require, or derive, from physical presence at the workplace, then the change to the interim order sought means that those features lose relevance to the resolution of the immediate dispute.
As to matters of the loss of reputation and the like, I did not understand the applicants’ submissions to be that this has, or even would, definitely occur. Rather the applicants referred to authority to provide an example where it had occurred to support the proposition that it may occur (see Paras). In my view the applicants’ position in this regard is insubstantial, such that it cannot be said that this factor weighs in their favour. Particularly in the absence of any relevant evidence.
The applicants also submit that the failure to reinstate Mr Wade to employment now will affect his capacity to participate in the enterprise bargaining process and his standing for election to positions of the NTIU. The applicants submitted that this would also prejudice the NTIU in that it would affect its capacity in the enterprise agreement bargaining process which is currently on foot.
What is of immediate note is that Mr Wade does not need to be elected to the National Council to continue his participation in the bargaining process. Further, there was no dispute that in any event Mr Wade could stand for election again, as the Branch president of the NTEU UTS Branch of the NTIU. I note that, in the first Kelly affidavit, his election to this role was described as “not practically viable”, however, it does not appear to dispute that it would be allowed under the rules (see first Kelly affidavit at [17]).
Both parties made submissions on the prejudicial effect to both applicants with reference to the “Registered Rules” (“the rules”) of the NTIU and to the first Wade affidavit. The applicants say, when regard is had to the rules of the NTIU, that Mr Wade would not be able to nominate for at least some of the relevant positions for which he would have otherwise wanted to nominate had he continued to be employed by the University.
The applicants referred to a number of the rules of the NTIU in this regard (r.18.2(b)(ii) and r.4.15), which they say require a person, such as Mr Wade, to be employed as a “general staff member” of the University before he could nominate for the position of “National Councillor”.
On the question of election to this position, the University referred to r.18.2(b)(ii), r.6.8(c), r.12.1, r.12.2(b), r.7.8 and r.4.15 of the rules of the NTIU and RE3. The sequence of argument that emerged was that Mr Wade could remain a member of the relevant branch of the NTIU, and would continue to be a “general staff” member as that term is defined in the rules, noting that the rules require a nominee for election to be either an “academic staff” or “general staff” member. As such Mr Wade could nominate for election to the position of the National Councillor of the NTIU. In the alternative, and with reference to r.18.12(b)(iii) and RE3, Mr Wade could be elected from the general membership to one of the National Councillor positions, as he remains a member of the NTIU under the rules.
I agree with the University’s submission that the interpretation of the relevant rules would result in Mr Wade not being disadvantaged in this regard if the reinstatement were not granted. That is, he could stand for election for the various positions he currently holds, importantly, including the position of National Councillor.
As set out above, in relation to the NTIU, the applicants say that the dismissal from employment and the “continuation” of that dismissal of Mr Wade will have a significant and adverse effect on the NTIU in what is said to be a critical stage in enterprise bargaining negotiations with the University on behalf of its members. That is, he will not be able to continue in this process as he had been selected to do.
The applicants submitted that it would be “impractical” for Mr Wade to continue to participate in the negotiations if he were not to be reinstated to employment. That is, that the University’s conduct in terminating Mr Wade’s employment has effectively removed Mr Wade from the negotiation process to the detriment and injury of both applicants. A number of matters weigh against the applicants here.
First, there is, on the evidence, no lawful impediment to Mr Wade continuing in this role.
Second, in this light the matter then becomes one of practical difficulty or otherwise, having regard to the actual circumstances presented by the evidence.
The University, particularly relying on the evidence in the first Strbik affidavit (at [12]), has indicated that it has no objection to Mr Wade continuing in this role. That is, in representing the NTIU at bargaining meetings.
The applicants’ have not satisfactorily explained how Mr Wade would be presented with any difficulty in doing so. Any argument that he could not participate as he was not “in the workplace” is diminished by the amendment to the relief sought. Noting further, that in light of the first Kelly affidavit (at [13] – [14]), it was the NTIU that elected to replace Mr Wade as one of their representatives in the bargaining process.
Here too the contribution, or role, of Mr Wade to the bargaining process to date requires some examination. The applicants rely on Mr Wade’s evidence that he was the lead negotiator (see first Wade affidavit at [26]).
This, however, needs to be seen in light of his subsequent evidence that all of the NTIU’s representatives had equal standing (see second Wade affidavit at [30]). This also needs to be seen in light of the relevant evidence from Mr Strbik (at [9] of the first Strbik affidavit) that another negotiator (“Ms Wilson”) “did most of the talking” at the meetings and wrote much of the relevant correspondence.
If Mr Wade’s evidence is accepted at face value, then his “initial” evidence that he took the “lead” is directly contradictory to the second Wade affidavit and the evidence of Mr Strbik. There is no subsequent evidence before the Court from the applicant to deny Mr Strbik’s evidence in this regard. On balance, I accept that while Mr Wade was obviously involved and played a role in the negotiations, the NTIU’s position to continue in the negotiations is not prejudiced to such an extent as to say there would be injury to the NTIU if the interim relief was not granted. In relation to Mr Wade, the evidence is that he could continue in the negotiating role. If the NTIU elected to remove him from the negotiations, then that is a matter for the applicants.
Nor have the applicants’ provided any evidence to challenge the University’s evidence that the negotiations have currently “stalled” and no bargaining meetings have been scheduled (see the first Strbik affidavit at [13]). While this situation may change in the future, if the final disposition of this matter were to be reasonably expedited, as the parties press, then the applicants’ position in this regard is further weakened.
The University’s submissions on the matters set out above seek to present a comprehensive rebuttal of the applicants’ claims in support of the interim order they now seek.
In essence, the University’s position is that there would be no “financial” injury to Mr Wade in the interim period (on the basis of a reasonably expeditious disposition of the substantive proceedings) and he could continue in the various positions he holds in the NTIU, including the enterprise bargaining agreement, with no dispute from the University.
I should note, as set out above, these are matters which I accept and weigh in favour of the University in the immediate dispute between the parties.
In light of its submissions, the University has also sought to explain why, given the matters immediately above, the applicants seek to press for this interim relief. Here the submissions turned to focus on the relationship between the NTIU and the University, and the environment surrounding the current bargaining process. That is, that an inference can be drawn, at least on the NTIU’s part, that the “reinstatement to employment of Mr Wade is being pursued as a matter of principle” (see the relevant annexures of the NTIU’s public statements annexed to the second Strbik affidavit). In short, the University referred to various evidence (RE2 and both Strbik affidavits) to argue that the NTIU has taken the opportunity to publicly highlight matters which it believes to be adverse to the University and its “reputation”.
In this light, the University says that the NTIU is pressing for the interim relief in the form of the injunction to obtain some “symbolic interim victory” to then use and, in the University’s view, misrepresent the University’s conduct and seek to address, publicly, the adverse findings made by the external investigator about Mr Wade’s conduct. That is, to present publicly, or misrepresent, any finding made by the Court in the applicants’ favour at this interim juncture as some comment on the University’s stated reasons for terminating Mr Wade’s employment.
Some caution must be exercised in seeking to ascribe motives in these circumstances. While I agree with the University that the applicants’ case for reinstatement in a number of arguments put initially lack weight following the amendment of the relief sought, the applicants’ possible “concern” for the “reputation” of Mr Wade still remains.
None of the matters put against Mr Wade, such as his conduct, have been tested by a Court of law. While “witnesses” may have been cross examined on their statutory declarations before the external investigator, it is trite to say that this was not a process before a Court. No final determination of any of the disputed matters in the substantive proceedings has, therefore, been made.
The University submitted that the “nuance” that the current proceedings were “interim”, would be lost in any publication by the NTIU. That is, given its previous conduct, the NTIU would seek to present, or more precisely “misrepresent”, to a “lay” audience (presumably the University community and other interested parties in the wider community) that the Court had found in favour of the applicants, in a broad and general sense, if the interim relief were to be granted.
In short, the University raised its concern that the reinstatement, albeit on an interim basis, of Mr Wade to his employment status could be used by the NTIU to engender “adverse” publicity for the University as it claimed had occurred, and otherwise continues to occur.
The applicants’ counsel gave an undertaking on behalf of the NTIU that any comment on any reinstatement would be limited to “fair comment” and would indicate that any such conclusion was the result of an interim determination by the Court.
It is of note that while both applicants were represented by the same counsel the “undertaking” was given on behalf of the NTIU. No mention was made of Mr Wade in this regard or by the University in relation to possible “negative publicity”.
Whatever use either of the applicants may put to any interim finding in their favour remains, in spite of the evidence of past conduct, in the realm of speculation. That the “nuances” of these “interim” proceedings and the Court’s judgment may be “lost” on those interested parties who hear whatever the parties may say is a difficult area for the Court to traverse now in the absence of evidence going to that question.
In all, I did not see the University’s “reputation” argument, or the possible sending of a “negative message”, as of assistance in the circumstances presented, and given the focus of the current judgment on a relatively short period pending the final disposition of the originating substantive application.
On balance, what precedes that immediately above, on its own, favours not granting the application for interim relief. However, ultimately, what also stands compellingly against the making of the order that the applicants seek is that deriving from one of the elements in the applicants’ own submissions. As stated above, they acknowledge that the relief they seek, that is “reinstatement”, is “not ordinarily granted” (see above).
Part of the reason for this also derives from another part of the applicants’ submissions. The applicants argued that an element in favour of the grant of the relief they seek was the recognition that work and employment provide, amongst other things, non-material benefits such as a sense of fulfilment to employees.
That argument may be allowed. However, these benefits, that is the sense of “wellbeing and fulfilment”, cannot, in my view, arise or derive from an employment relationship where trust and confidence no longer exist, or, even, are greatly reduced.
The state of the evidence before the Court now is that the University, and some of its employees, has lost trust and confidence in Mr Wade to such an extent that the reinstatement sought by the applicants now would have a significant deleterious effect on its operations and the health, welfare and morale of some of its other staff.
No order of this Court now can restore that confidence or “broken” relationship in the circumstances of this case. As stated above, there may be circumstances, as recognised in the authorities relied on by the applicants, where such an order, on balance, is appropriate or more precisely circumstances allow for, or do not deny, reinstatement.
I cannot see any such “appropriate circumstances” in the evidence before the Court. It is of note that while the applicants made submissions generally about the benefits of work and employment and the like, there was nothing in their submissions to link these concepts to the circumstances presented in this case. Further, and importantly, despite opportunity, there was no such evidence from the applicants on which to reasonably base any such submissions.
The University’s evidence clearly shows the negative effect that reinstatement of Mr Wade would have on it, and particularly some of its employees and operations. Here the evidence of the University’s witnesses of the impact on, and prejudice to, Ms O’Leary and Ms Grattan should be given weight, even in circumstances where none of the evidence was “tested” under cross-examination.
For immediate purposes, and based on the evidence currently before the Court, I accept the University’s submissions that reinstatement to employment of Mr Wade, even on an interim basis, and even where he would not be physically working (at work), would have an adverse impact on at least two other employees of the University in the way asserted by the University’s submissions and as arising from the evidence presented.
Similarly, the same can be said of the University’s evidence of the impact on the University’s operations if reinstatement were to be granted. Here in particular the impact on the operations of the
audio visual department of the University, in which Mr Wade was employed, at a time when this department is engaged in the completion of what has been described as an “important project” in the University’s audio visual capacity and services, and the costs of this project. This is of such weight that it also weighs against the application for reinstatement of Mr Wade to employment.
Conclusion
In all, therefore I am not persuaded that the applicants should be given the interim relief that they now seek. I will make an order accordingly. The substantive matter should now proceed to a final hearing. I will hear the parties further as to the timing of that hearing, and a proposed timetable for the consideration of the substantive application.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 June 2014
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