Rowe v Royal Zoological Society of South Australia INC.

[2013] FCCA 1008

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE v ROYAL ZOOLOGICAL SOCIETY OF SOUTH AUSTRALIA INC. [2013] FCCA 1008

Catchwords:
INDUSTRIAL LAW – Interim mandatory injunction sought for employee to return to work – further injunction sought restraining employer from directing applicant to attend mediation and counselling prior to being permitted to return to work – injunctions refused.

Legislation:  

Fair Work Act2009 (Cth), Chapter 3, para.3.1

Applicant: CASSANDRA LEAH ROWE

Respondent: ROYAL ZOOLOGICAL SOCIETY OF SOUTH AUSTRALIA INC.

File Number: ADG 147 of 2013

Judgment of: Judge Simpson

Hearing date: 26 July 2013

Date of Last Submission: 26 July 2013

Delivered at: Adelaide

Delivered on: 12 August 2013

REPRESENTATION

Counsel for the Applicant: Ms Harley

Solicitors for the Applicant: Duncan Basheer Hannon

Counsel for the Respondent: Mr Warren

Solicitors for the Respondent: Lynch Meyer

ORDERS

1. The relief sought by the applicant in paragraphs (a) and (b) of the interlocutory orders sought in the applicant’s Application filed on 17 May 2013 is refused.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 147 of 2013

CASSANDRA LEAH ROWE

Applicant

And

ROYAL ZOOLOGICAL SOCIETY OF SOUTH AUSTRALIA INC.

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application in an action brought in the Fair Work Division of the Court in which the applicant seeks the following interlocutory orders:

   “(a)The respondent permit the Applicant to return to her pre-maternity leave position as Senior Keeper of Primates at the Monarto Zoological Park when the Applicant is certified from her treating psychologist or General Practitioner as fit to return to pre-injury or modified duties.

   (b)The respondent be refrained (sic) from directing the Applicant to attend mediation or counselling before she is permitted to return to work.”

2. The respondent opposes the orders sought.

3. In these reasons I do not intend to make any findings of fact. Findings of fact will have to await the trial of the action. I will keep an open mind until then.

4. The parties correctly identify the matters to consider for such an application as this: whether the applicant has standing to bring the action; whether there is a serious question to be tried; whether the applicant is likely to suffer injury for which damages would not be an adequate remedy; and, whether the balance of convenience favours the granting of an interlocutory injunction.

5. Before addressing each of these issues it is necessary to examine the factual background to this dispute.

Background

1. The applicant’s case is that she commenced full time employment with the respondent in January 2009 being employed as Senior Keeper of Primates. She was to be based at the Monarto Zoological Park.

2. Between early 2010 and May 2011 the applicant was absent from work on unpaid maternity leave.

3. In May 2011 the applicant returned from maternity leave on a part-time basis working 3 days per week. Upon her return to work the applicant encountered various work place issues including, but not limited to, an increased work load and a manager, Mr Michael Post, who she says was unsupportive. She says that Mr Post stated to her on several occasions that he was “… not a fan of part-time employees”.

4. In early 2011 the applicant again became pregnant. She planned to commence her maternity leave in October 2011.

5. As a result of the work place issues referred to earlier in this summary, on the 27 July 2011 the applicant sent an email to the respondent’s Human Resource Manager, Ms Vicki Whiteway, outlining her concerns. In the email the applicant advised Ms Whiteway that there were safety concerns but she did not elaborate. She also informed Ms Whiteway that she was being discriminated against due to her pregnancy and part-time status.

6. On the 10 August 2011 the applicant was directed to attend a meeting with Ms Whiteway and Ms Beth Pohl. At this first meeting Ms Whiteway advised the applicant that she had concerns regarding her pregnancy, that her pregnancy was “high risk”, and that she was being sent home immediately with pay.

7. The applicant says that she was restrained from returning to work between the first meeting and when she again commenced maternity leave in October 2011.

8. The applicant says that between the first meeting and the date when the applicant commenced maternity leave the applicant’s Union representative entered into correspondence with the respondent to negotiate a return to work. She says that the respondent refused to allow her to return to work. She says that three separate medical certificates were provided to the respondent from the applicant’s treating physicians advising that the applicant was fit for work but without any response. 

9. The applicant says that between October 2011 and October 2012 she was absent from work on unpaid maternity leave. She expected to return to work on a part-time basis working three days per week in October 2012.

10. In early October 2012 the applicant says that she attended a meeting with Ms Pohl to discuss her return to work. At this second meeting Ms Pohl advised the applicant that she was not permitted to return to her pre-maternity position as Senior Keeper of Primates or to otherwise work in the primate section. The Respondent did not provide reasons for the decision only informing her that “the other staff members do not want to work with you or see you”.

11. The applicant says that since October 2012 another staff member has acted in her position.  The applicant says that she is aware that other positions of a similar nature to her substantive position were vacant and have been filled at the Adelaide Zoo since October 2012. 

12. The applicant says that at the second meeting she was advised to attend mediation with all staff members in the primate section with the mediation proposed to be undertaken over a 6-8 week period.  She says that the respondent did not provide her with an agenda for the mediation and did not advise her of detailed reasons why the mediation was needed. The applicant was advised that the mediation was confidential and that she was not permitted to discuss the mediation with anyone including management. She was also advised that the respondent had arranged that the mediation would be undertaken at the Adelaide Zoo. She was informed that she was not permitted on the Monarto Zoo premises during the period of the mediation and until further notice.

13. The applicant says that she attended several of the arranged mediation sessions but that during those sessions developed “adverse psychological symptoms”.

14. The applicant says that on 27 November 2012 she attended a meeting with several members of management of the respondent.  At this third meeting the applicant was advised that she was not permitted to return to her substantive position until she had completed the mediation.  She says that she informed management of the psychological symptoms which occurred as a result of the mediation.

15. Also at the third meeting the applicant was advised that another staff member had filled her position as Senior Keeper of the primates. The respondent offered the applicant a position in the Children’s Zoo which position the applicant considered to be a considerable demotion and not appropriate considering her level of skills, experience and qualifications.

16. In late 2012 the applicant was diagnosed as suffering from a major depressive illness and an anxiety disorder. As a result of this, the applicant was certified as unfit to continue to participate in the mediation arranged by the respondent.

17. The applicant complains that she has been precluded by the respondent from returning to work since 3 December 2012.

18. In early December 2012 the applicant lodged a claim for worker’s compensation. The claim was accepted for income maintenance and medical expenses.

19. The applicant complains that the respondent continues to preclude her from returning to work to her substantive position as Senior Keeper of primates.

20. It is the applicant’s case that she has been certified as unfit to participate in the mediation proposed by the respondent but certified fit to undertake her usual hours and duties as Senior Keeper of primates.

21. The applicant says that she suffers and continues to suffer a loss of income as a result of the respondent precluding her from returning to work.  The applicant continues to be in receipt of the income maintenance through her accepted workers compensation claim at 80% of her average weekly earnings.  She therefore continues to suffer a 20% loss of earnings.

Determination of the application

Serious question to be tried

1. The respondent submits that there is no serious question to be tried as the respondent’s action in directing the applicant to participate in mediation before returning to work as senior keeper is authorised by or under the common law which, they say, permits an employer to lawfully and reasonably direct its employees. They submit that this is not adverse action for the purpose of the Act.

2. I accept the proposition that, at common law, an employer is entitled to expect an employee to obey lawful and reasonable directions whilst at work. But there are limitations to what employers can expect their employees to do during periods that they are not working. As an example, it is appropriate for an employer to expect an employee out of hours to not undermine the employer’s business.  At common law a term is likely to be implied into the contract of employment to address this type of situation. But that is not this case. Here the employer expects and requires the employee to participate in mediation whilst not at work and therefore, by definition, in her own time. In my view this is not something that an employer should require of an employee. Significantly, no authority for the respondent’s stated position about the applicant’s return to work was referred to.

3. At this interim stage, on the evidence that is presently before me, I consider that the applicant is not obliged to continue to attend the mediation sessions.  The respondent should consider allowing the applicant to return to work without the present requirement being met.

4. It is the applicant who has to establish a prima facie case of a serious question to be tried.  A prima facie case is established if the applicant shows a sufficient likelihood of success. The applicant says that there is a serious question to be tried as the respondent has breached, and continues to breach, various provisions contained in Chapter 3, Par.3.1 of the Fair Work Act 2009 (“the Act”). From my examination of the applicant’s pleading and after hearing submissions, there is no doubt in my mind that the respondent’s actions, as alleged by the applicant, if true, constitute adverse action. I consider that the applicant has established a prima facie case and therefore a serious question to be tried.

Are damages an adequate remedy?

1. I turn to the question of whether damages would be an adequate remedy.

2. The applicant submits that there are three reasons why damages would not be an adequate remedy.

3. Firstly, the applicant continues to receive worker’s compensation payments that are only 80% of the normal full wage.  Clearly damages would adequately deal with the applicant’s concern about the 20% shortfall.

4. Secondly, the applicant says that she is suffering a major depressive illness and that she has an anxiety disorder.  It is submitted on her behalf that the greater the length of time that passes without her returning to work, the longer the adverse impact this is having on her mental health. No medical evidence has been put before me to substantiate this submission. Without such evidence the submission carries little weight.

5. Common sense suggests that it would not be a good idea to make orders that would have the applicant, with her somewhat fragile mental health, returned to work in what she says is a hostile work environment. In this case damages in the action would be an adequate remedy for any prolongation or worsening of her already poor mental health.

6. Finally, the applicant says that the greater the time that passes with her not at work, the greater the detrimental effect on her reputation and therefore her likelihood of obtaining other suitable employment. Effect on reputation is something that is regularly a head of damages in litigation. I am satisfied that in this case, damages for these concerns would be an adequate remedy.

Balance of convenience

1. As I have come to the conclusion that damages would be an adequate remedy it is not strictly necessary to deal with the question of balance of convenience. I propose to nevertheless deal with this topic in case I am wrong in relation to the topic of damages being an adequate remedy.

2. There is much to be said for the respondent’s submission that the balance of convenience weighs heavily in favour of the respondent.  It is pointed out that the primate’s team works in a high risk working environment for both the employees and the animals.  It is reasonable to infer that the team members need to work in an environment of trust, confidence and cohesion. Without wishing to imply any adverse assessment of the applicant, I cannot ignore the concern expressed on behalf of the respondent in relation to the potential adverse consequences if the applicant returns to her position as Senior Keeper.

Conclusion

1. For the above reasons I have come to the conclusion that the interim orders sought by the applicant be refused.

2. I make the order to be found at the beginning of these reasons.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 August 2013