Russell v Institution of Engineers Australia t/a Engineers Australia
[2013] FCA 1250
FEDERAL COURT OF AUSTRALIA
Russell v Institution of Engineers Australia t/a Engineers Australia
[2013] FCA 1250
Citation: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 Parties: BRONWYN RUSSELL v THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA File number: ACD 111 of 2013 Judge: FOSTER J Date of judgment: 22 November 2013 Catchwords: INDUSTRIAL LAW – whether the Court should order the interim reinstatement of the applicant as a senior employee of the respondent – relevant principles discussed – whether, upon the true construction of the applicant’s employment contract, the term of the applicant’s employment was to end on 2 February 2014 by effluxion of time Legislation: Fair Work Act 2009 (Cth), ss 44, 97, 340, 351, 352, 361, 545(2)(a) and 546 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 applied
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 applied
Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 applied
Sanders v Snell (1998) 196 CLR 329 citedDate of hearing: 15 November 2013 Place: Sydney (via video link to Canberra) Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 86 Counsel for the Applicant: Mr J Macken Solicitor for the Applicant: Badgery & Rafferty Lawyers Counsel for the Respondent: Mr M Irving Solicitor for the Respondent: Bradley Allen Love
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
FAIR WORK DIVISION
ACD 111 of 2013
BETWEEN: BRONWYN RUSSELL
ApplicantAND: THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
22 NOVEMBER 2013
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO CANBERRA)
THE COURT ORDERS THAT:
1.The applicant’s application for interim relief be dismissed.
2.There be no orders as to the costs of the said application.
3.The proceeding be listed for directions at 9.15 am on 6 December 2013 before the A.C.T. List Judge.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
FAIR WORK DIVISION
ACD 111 of 2013
BETWEEN: BRONWYN RUSSELL
ApplicantAND: THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA
Respondent
JUDGE:
FOSTER J
DATE:
22 NOVEMBER 2013
PLACE:
SYDNEY (VIA VIDEO LINK TO CANBERRA)
REASONS FOR JUDGMENT
Until 4 September 2013, the applicant was employed by the respondent in a senior position as its General Manager, Northern Division (previously called “Director, Northern Division”). She had occupied that position continuously since 13 October 2003. In the ten year period during which she was employed by the respondent, she entered into three formal employment contracts, the last of which was signed by the parties on 2 February 2009 although that contract was expressed to be effective from 13 October 2008. The applicant is 63 years of age. She will turn 64 next Monday.
On 4 September 2013, the respondent purported to terminate the applicant’s employment. Notice of that purported termination was given to the applicant by email sent by Mr Ben Leaver who is the Executive General Manager, Member Delivery, of the respondent at 1.13 pm on that day. Mr Leaver had been appointed to that position in July 2012.
The applicant has not accepted the termination of her employment.
The parties referred their dispute to Fair Work Australia for conciliation. The dispute was not resolved by that organisation.
On 11 November 2013, the applicant commenced the current proceeding by filing an Originating Application under the Fair Work Act 2009 (Cth) (FWA) in which she alleges that she was dismissed in contravention of certain general protection provisions found in the FWA and in breach of her current employment contract. On the same day, she also filed a Statement of Claim and an affidavit sworn by her on 10 November 2013. In this proceeding, she seeks declaratory relief, statutory compensation, damages for breach of her current employment contract and the imposition of a pecuniary penalty on the respondent. She also seeks reinstatement.
In her Originating Application, the applicant made a claim for interim relief in the following terms:
[The applicant claims] an order in the nature of an interim injunction pursuant to section 545(2)(a) of the FW Act that the Respondent by itself, its servants or agents treat as invalid and of no force and effect its termination of the Applicant’s employment on 4 September 2013, such order to remain in effect until the determination of these proceedings or until the Court orders otherwise.
It is the applicant’s claim for reinstatement which is said to be the final relief which supports the application for interim relief with which these Reasons for Judgment are concerned.
The applicant sought an urgent hearing of her application for interim relief. I heard that application last Friday (15 November 2013).
These Reasons for Judgment determine the applicant’s application for interim relief to which I have referred at [6] to [8] above.
THE APPLICANT’S CASE
The applicant brings several claims based upon contraventions of the FWA and also alleges that the respondent has breached her current employment contract. The applicant relies upon all of the causes of action pleaded in her Statement of Claim as supporting her claim for interim relief. However, Counsel who appeared for the applicant at the interlocutory hearing submitted that the “weight” of his case at the moment was to be found in the applicant’s case under the FWA.
First, the applicant alleges that her employment was terminated by the respondent because she was absent from work on sick leave. She says that she was genuinely ill for several days prior to and on 4 September 2013 and that she had availed herself of her entitlement to sick leave for that reason. She complains that the respondent terminated her employment because she was on sick leave and that her employment was therefore terminated for a prohibited reason in contravention of s 352 of the FWA.
Second, the applicant alleges that, under her contractual arrangements with the respondent, she was entitled to make a complaint in relation to her employment including in relation to any consideration being given by the respondent to terminate that employment. The applicant alleges that her employment was terminated on 4 September 2013 in order to prevent her from making a complaint to the Northern Division President of the respondent in relation to the respondent’s proposal to terminate her employment and thereby contravened s 340(1)(b) of the FWA (adverse action to prevent the exercise of a workplace right by the applicant).
Third, the applicant alleges that her employment was terminated because of her age and that, by terminating her employment for that reason, the respondent contravened s 351 of the FWA.
Fourth, the applicant alleges that she was entitled to take paid personal leave on account of illness under the National Employment Standards and that, when the respondent terminated her employment because she was absent on sick leave (as she alleges), the respondent contravened s 44 and s 97 of the FWA.
Fifth, the applicant alleges a breach of her current employment contract. The applicant alleges that, as at 4 September 2013, none of the grounds upon which the applicant’s employment by the respondent could be terminated existed. For this reason, so she claims, there was no basis upon which the respondent could validly have terminated her employment on 4 September 2013.
In addition to the above matters, the applicant claims that her current employment contract included an implied obligation that the term of her employment would be extended beyond the end date specified in that contract. She also argues that, by terminating her employment in the manner which he did, Mr Leaver acted in breach of the by-laws and regulations of the respondent. These additional matters are pleaded at pars 28 to 31 of the applicant’s Statement of Claim in the following terms:
28.The contract of employment included an implied obligation that, if the employment was not terminated, the contract would be extended at the end of the period of the contract on the same terms, or such other terms as agreed, unless the Respondent had given the Applicant 4 months’ notice of its intention to not extend the contract (“the obligation to extend the contract”).
PARTICULARS
a. It is reasonable and equitable that where no grounds exist for terminating the employment and the position and the employment are ongoing and no notice has been given of intention to not extend the contract, the terms of employment are to be extended, or varied by agreement.
b. The obligation to extend the contract is necessary to give efficacy to:
i. the ongoing nature of the position and the employment;
ii. the requirement at clause 7 of the 2009 Contract to give notice of the intention to not extend the contract;
c. The obligation to extend the contract is self-evident.
d. The obligation to extend the contract is not contrary to any term of the 2009 Contract.
29. By its conduct in terminating the Applicant’s employment as alleged at paragraphs 23 to 27 the Respondent deprived the Applicant of the benefit of [sic] obligation to extend the contract.
Termination of employment was contrary to law
30. The Respondent’s termination of the Applicant’s employment was contrary to law.
PARTICULARS
a. The Respondent’s Council is empowered to make Regulations giving effect to its by-laws (Institution of Engineers Australia 2011 By-laws; by-law 32)
b. The by-laws and Regulations made under them are binding on members of the Respondent (By-law 12.2)
c. By Regulation 4.2.3 of the Division Regulations, the Chief Executive must consult with the Division President on the appointment, staff appraisal and termination of the Division Director.
31. The Respondent’s Chief Executive was obliged by the Respondent’s Division Regulations at 4.2.3 to consult with the Northern Division President about the proposed termination, but did not do so.
In her Statement of Claim, the applicant also specifically addresses the question of whether damages are likely to be an adequate remedy in the present case and also the balance of convenience in respect of her application for interim relief. In her pleading, she claims that she has suffered reputational damage as a result of the termination of her employment and has lost the intangible benefits of being employed by the respondent. She alleges that, given her age, her prospects of future employment are limited and have been seriously damaged by the conduct of the respondent in terminating her employment in the manner in which it did.
THE APPLICANT’S EMPLOYMENT CONTRACT
As I mentioned at [1] above, the applicant’s current employment contract was signed by the parties on 2 February 2009. It comprises an Offer of Appointment of nine pages which consists of the following items:
(a)A letter of offer of five pages signed by the then Chief Executive of the respondent (Mr Taylor). That letter of offer contains detailed terms and conditions;
(b)A schedule in which the applicant’s Remuneration Package is specified;
(c)A single page constituting the applicant’s Acceptance of the offer made to her; and
(d)A set of principles of two pages in length entitled “Our People” which is said to have been included in order to provide guidance as to the behaviour expected of the respondent’s employees.
Clauses 5 to 11 of the Offer of Appointment in the applicant’s current employment contract are in the following terms:
Terms of Employment
5.Your reappointment continues your employment with Engineers Australia which commenced on 13 October 2003.
6.This contract shall remain in force for a period of 5 years up until 2 February 2014.
7.The contract may be extended by mutual agreement at any time during the last year of its term. At least 4 months notice is to be given by either party of its intention not to extend the Contract, and this may be shortened by mutual agreement.
Responsibilities
8.Engineers Australia expects the highest standards of professional and personal behaviour from every member of staff. This includes showing proper respect for other staff, as well as the members of Engineers Australia, and valuing the contributions that all can make, regardless of their role or position in the organisation.
9.Engineers Australia will not tolerate unacceptable behaviour, including any form of discrimination, harassment or bullying, and will take strong action to remove such behaviours from the workplace.
Performance
10.You will be expected to continue to carry out your duties as described in your Position Description, in accordance with the requirements of Engineers Australia’s Strategic and Operational Plans.
11.A performance review plan will be developed, which will form the basis of your ongoing performance review, as part of Engineers Australia’s Staff Development Scheme. In addition, you will also be judged as to how you have performed against the competencies required for your position.
Clauses 26 to 30 deal with the applicant’s leave entitlements. Clauses 27 and 28 are in the following terms:
27.Personal leave, covering sick and carers leave, on 15 working days per annum may be granted at full pay. Personal leave may accumulate, but unused leave will not be paid out on termination of employment. As part of personal leave you have access to 10 days leave per annum as carers leave to care for immediate family members. This will come out of personal leave entitlements.
28.If you are absent from duties for more than two consecutive days for sick or carers leave purposes, you must provide a medical certificate for the total period of your absence.
Clauses 34 to 36 deal with termination of the applicant’s employment. Those clauses are in the following terms:
Termination
34.Engineers Australia may terminate your employment immediately without notice (or payment in lieu of notice) if you are guilty of serious misconduct.
35.Your employment can cease if, following formal counselling, your performance is not up to the required level. Also, in the event that the position ceases to exist as a result of changed organisational arrangements within Engineers Australia, employment can be terminated with the entitlement to redundancy provisions in accordance with Engineers Australia policy.
36.Engineers Australia may terminate employment by giving written notice. In these circumstances, Engineers Australia will make a payment of between 1 to 4 weeks salary (pro rata), depending on the period of continuous service, in lieu of notice for some or all of the notice period.
THE RESPONDENT’S ROYAL CHARTER, REGULATIONS AND BY-LAWS
The current version of the respondent’s Royal Charter was approved by the Governor-General on 26 September 2011. The original Charter had been approved by King George VI on 10 March 1938.
Clause 6 of the Royal Charter provides that the by-laws made under the Royal Charter must regulate membership of the respondent.
The respondent’s by-laws do, in fact, regulate membership including by specifying various grades of membership. Those by-laws also regulate various organs of the respondent, including its Council.
The Council has made regulations pursuant to the respondent’s by-laws. They are called “Division Regulations” and are designed to regulate the workings of the various divisions of the respondent. The current version of the respondent’s Division Regulations was adopted by the respondent’s Council on 23 November 2010.
Clauses 4.2.3 and 4.2.4 of the Division Regulations are in the following terms:
4.2.3Division staff members are appointed by and are accountable to the Chief Executive. Subject to any confidentiality and legislative or legal requirements, the Chief Executive is to consult with the Division President on the appointment, staff appraisal and termination of the Division Director.
4.2.4The Chief Executive or delegate is to consult with the Division Committee on:
a)the preparation of an annual division operational plan and budget;
b)significant division premises investment and planning decisions; and
c)other matters of significance to the overall business and conduct of Engineers Australia at the division level.
Under the respondent’s by-laws, the Chief Executive is to conduct the ordinary business of the respondent. A Division Director is the prime staff point of contact for division office bearers and manages staff, assets and finance in accordance with the Chief Executive’s delegations (By-Laws 40.3 and 40.5 and Regulation 4.1.2).
THE RELEVANT FACTS
The applicant alleges that she has always been a satisfactory employee of the respondent and has always been well-regarded by other members of staff and professional colleagues who dealt with her from time to time over the years. She tendered in evidence several of her performance reviews and a number of testimonials which, for present purposes, are sufficient to provide an evidentiary foundation for the applicant’s contentions in this regard.
In April 2013, the applicant became involved in a contretemps with the Chief Executive of the respondent (Mr Durkin) and Mr Leaver concerning whether the applicant was responsible for circulating a rumour amongst the respondent’s staff to the effect that Mr Durkin was planning to reduce the number of divisions of the respondent from nine to five. The applicant believed that, after some discussions involving Mr Durkin, Mr Leaver and others, her superiors were satisfied with her explanations and denials in respect of this matter.
In May 2013, Mr Leaver commenced reviewing the salaries of senior staff. As part of that process, Mr Leaver sought the views of Ms McCormick, the President of the Northern Division, as to the applicant’s performance in the year to June 2013. In response to Mr Leaver’s request, Ms McCormick gave a very favourable assessment of the applicant and her performance.
By letter dated 7 June 2013 which was sent by Mr Leaver to the applicant under cover of an email dated 19 June 2013, the respondent informed the applicant of the terms of her salary review which was to come into effect at the end of June 2013. The salary review letter was signed by both Mr Durkin and Mr Leaver. The letter was a formal communication dealing with the applicant’s performance and salary. It contained no criticism of the applicant’s performance. Furthermore, Mr Leaver endorsed the letter with a personal note which, although not expressed in glowing terms, nonetheless conveyed the message that Mr Durkin and Mr Leaver were content with the applicant’s performance.
The email sent on 19 June 2013, however, contained a number of criticisms of the applicant’s performance. It is not necessary to refer to those criticisms in detail. They focussed on the applicant’s manner of dealing with others and her communication skills. At the very end of the email, Mr Leaver drew the applicant’s attention to the fact that he was still hearing rumours about the closure of some divisions of the respondent and that those rumours appeared to have their source in comments made by the applicant.
The applicant testified that, on 18 June 2013, she spoke with Mr Leaver by telephone. She said that he informed her then that she was receiving only a 1% increase in her salary because her performance had not met the respondent’s expectations. This was the lowest salary increase given to employees of the respondent at the level at which the applicant was employed (Divisional General Manager).
The applicant was unhappy with the quantum of her salary increase and expressed her unhappiness to Mr Leaver. Mr Leaver responded by suggesting that he and another staff member responsible for “People Development” within the respondent (Merisha Percival) should come to Darwin in early August to discuss the applicant’s employment with the applicant.
In August 2013, the applicant registered her concerns about being bullied by Mr Leaver with Ms Percival.
A further incident involving the applicant and Mr Leaver arose in mid-August 2013. It concerned other rumours allegedly circulated by the applicant which were, according to Mr Leaver, untrue.
Relations between the applicant and Mr Leaver thereafter deteriorated even further.
The applicant claims that, on 1 September 2013, she fell ill. She did not give any evidence before me as to the nature of her illness. On the same day, she informed a co-worker that she would not be at work in on Monday, 2 September 2013. On 2 September 2013, she attended her General Practitioner’s clinic and obtained a medical certificate which stated that she was suffering from a medical condition and would be unfit to attend work from 2 September 2013 to 9 September 2013.
On 3 September 2013, Mr Leaver sent an email to the applicant in which he informed her that he would be travelling to Darwin the next day (4 September 2013) with Ms Percival. The applicant did not inform Mr Leaver that she was at home on sick leave and would not be in the office at work on 4 September 2013.
Mr Leaver and Ms Percival did travel to Darwin on 4 September 2013 and endeavoured to meet with the applicant. In the period from 11.16 am to 1.00 pm on that day, Mr Leaver and the applicant exchanged text messages. Mr Leaver wanted to arrange a meeting with the applicant. She declined to meet with Mr Leaver. She said she could not do so because she was ill. The last text message was sent by the applicant to Mr Leaver at 1.00 pm on 4 September 2013. It was in the following terms:
Ben, i am sick and not at work. It is not appropriate that i attend to work matters when i am home on sick leave. Happy to speak with you when I am back at work.
At 1.13 pm on 4 September 2013, Mr Leaver sent an email to the applicant which included the following:
Dear Bronwyn,
Subject: Termination of Employment
As you know Merisha Percival from People Development and I have come to the Northern Division Office in Darwin today, 4 September 2013 to meet with you and your team.
You did not inform us of your leave of absence and therefore we were unaware that you were not going to be in the Darwin office today. The purpose of this visit was to provide you with notice of termination of employment effective Wednesday, 4 September 2013. You are not required to work out your notice; therefore your last day of duty will be today, 4 September 2013.
As per your contract dated 2 February 2009, Engineers Australia will provide payment in lieu to the end of your fixed term contract date of 2 February 2014.
The balance of the email dealt with the mechanics of organising the applicant’s termination. The last paragraph of the email was expressed as follows:
On behalf of Engineers Australia and the team, thank you for all your efforts during your time with us.
The applicant was subsequently paid her salary and other entitlements for the period up to 2 February 2014.
I understand that there may be some difference of opinion between the parties as to whether she has been paid all of those entitlements. However, it was the respondent’s intention to pay all of those entitlements and it remains willing to do so.
On 10 September 2013, the respondent advertised for a replacement for the applicant. The applicant became aware of that advertisement soon after it was placed.
The respondent has engaged a replacement employee who is to commence employment in the Darwin office of the respondent on 25 November 2013.
At par 53 of her affidavit sworn on 10 November 2013, the applicant said that, had she been told that the respondent did not intend to extend her employment, she would have had an opportunity to seek to have that decision reversed by discussing the matter with the Northern Division President (Ms McCormick) with a view to enlisting the President’s aid and support in trying to keep her employment. At pars 56 to 60 of the same affidavit, the applicant made the point that the termination of her employment deprived her of an opportunity to salary sacrifice larger amounts into superannuation over the next two years. At pars 61 to 63 of the same affidavit, she also said that she would have difficulty in obtaining suitable alternative employment because of her age but also because of the circumstances of her termination.
The applicant also gave evidence of two discussions which she had had in 2012 concerning her retirement plans. She said that she told Mr Durkin on one occasion and Mr Leaver on another occasion that she planned to retire in December 2015. As recounted by the applicant, there was nothing said by either Mr Durkin or Mr Leaver that could be construed as constituting acceptance on behalf of the respondent of the proposition that the applicant’s employment was secure until December 2015. The evidence rose no higher than the applicant expressing her intentions. No commitment was made by either Mr Durkin or Mr Leaver that the applicant would be employed until December 2015.
Mr Leaver gave evidence at the hearing of the applicant’s application for interim relief. He was not cross-examined so that his evidence has not yet been tested. In the first of two affidavits sworn by him, he explained the concerns which he held about the applicant’s performance in the year ended June 2013. He said that the applicant had abused her work travel entitlements, had engaged in out-of-work activities during work time, had behaved badly towards Mr Durkin and himself and had been engaged in untrue gossip about the closure of the Northern Division and the termination of another staff member’s employment. Mr Leaver denied that he had terminated the applicant’s employment for any prohibited reason or as a result of any adverse action within the meaning of the FWA. In particular, he said that the applicant’s age had not been a factor in his decision to terminate her employment. Nor had the circumstance that she was on sick leave when he travelled to Darwin in early September 2013 been a factor in his decision to terminate her employment. He also denied that her decision not to attend the work meeting which he tried to arrange on 4 September 2013 had been a factor in his decision to terminate her employment.
It was Mr Leaver’s evidence that he had made a decision to terminate the applicant’s employment by no later than 21 August 2013, after discussing the prospect of that termination with Mr Durkin and Ms Percival. He also said that Mr Durkin had informed him that he (Durkin) had raised with members of the respondent’s Council at the Council meeting held on 21 August 2013 the prospect of terminating the applicant’s employment and had received strong support for Mr Leaver’s decision to do so from all Council members. Mr Leaver said that he did not communicate his termination decision to the applicant while she was in Canberra in late August 2013 because he thought that it was insensitive to do so when she was there amongst her peers and away from home. He said that he knew that she was on leave the following week so that the earliest point in time at which the decision could be communicated was the first week of September 2013.
Mr Leaver made the obvious point that, in light of the fact that the applicant’s position had been advertised and filled with the new employee to start next Monday, it would be extremely difficult for the respondent to manage any reinstatement of the applicant, particularly if it was only for a short period.
Mr Leaver also said that, given that he was based in Melbourne and the applicant was employed in Darwin, it would be very difficult for him effectively to supervise her should she be reinstated. He also said quite bluntly that he no longer trusted her to perform her job in the best interests of the respondent.
THE RELEVANT LEGISLATIVE PROVISIONS
Sections 44, 97, 107, 340, 341, 351(1), 352 and 361 of the FWA are in the following terms:
44 Contravening the National Employment Standards
(1)An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4–1).
(2)However, an order cannot be made under Division 2 of Part 4–1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).
Note 1:Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.
Note 2:Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a)because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b)to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i)a personal illness, or personal injury, affecting the member; or
(ii)an unexpected emergency affecting the member.
Note 1:The notice and evidence requirements of section 107 must be complied with.
Note 2:If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave under section 80.
107 Notice and evidence requirements
Notice
(1)An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2)The notice:
(a)must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b)must advise the employer of the period, or expected period, of the leave.
Evidence
(3)An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a)if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or
(b)if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or
(c)if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).
Compliance
(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.
Modern awards and enterprise agreements may include evidence requirements
(5)A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.
Note:Personal information given to an employer under this section may be regulated under the Privacy Act 1988.
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.
Note:This subsection is a civil remedy provision (see Part 4–1).
(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.
Note: This subsection is a civil remedy provision (see Part 4–1).
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.
Note:Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
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).
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4 1).
…
352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4 1).361 Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
Section 342(1) (Item 1) provides that an employer takes adverse action against an employee if (amongst other things) the employer dismisses that employee.
Section 545(1) and s 545(2)(a) provide that this Court may make any order that the Court considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, including granting an interim injunction to prevent, stop or remedy the effects of such a contravention. Section 539 provides that each of ss 44(1), 340(1), 351(1) and 352 is, for the purposes of s 545 of the FWA, a civil remedy provision. Section 546 gives this Court power to impose pecuniary penalties. Section 361(1) operates to reverse the onus of proof at a trial in relation to the state of mind of the relevant decision-maker. Section 361(2) provides that that reversal of the onus of proof does not apply to the hearing of an application for an interim injunction. Nonetheless, the existence and impact of the provision has to be weighed by the Court when determining such an application.
CONSIDERATION
In Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 (Samsung) at 271–278 [44]–[70], the Full Court collected and summarised the principles which generally govern the grant of interlocutory injunctive relief. For present purposes, it is sufficient to note that the essence of those principles was summarised by Mason ACJ (in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 [13]:
… In 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.
Also of present relevance are the remarks of the Full Court in Samsung made at 278 [69] where the Court said:
In Patrick at [65] and [66] (pp 41–43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997) (at pp 402–403), which may be summarised as follows:
(a)In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances;
(b)Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and
(c)Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.
In submissions made on her behalf, Counsel for the applicant concentrated upon the pleaded causes of action based upon the FWA. He did not abandon the applicant’s breach of contract case but placed greater emphasis upon the applicant’s statutory claims.
There is no doubt that the respondent’s action through Mr Leaver of dismissing the applicant from her employment and terminating her employment contract constituted adverse action within the meaning of s 342(1) of the FWA.
The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at 657 [44]–[45], French CJ and Crennan J said:
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?” (Purvis v New South Wales (2003) 217 CLR 92 at 163 [236] per Gummow, Hayne and Heydon JJ; [2003] HCA 62.)
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer (See, for example, General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; 12 ALR 605 at 617). Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker (See, for example, Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J, 211 per Higgins J; [1917] HCA 28) or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity (See, for example, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33]).
To similar effect were the observations of Gummow and Hayne JJ made in the same case at 676 [126]–[128], where their Honours said:
The relevant frame of reference in this case is a statutory provision in which neither the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision maker at the time the adverse action was taken which was the focus of the inquiry.
Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out ((2011) 191 FCR 212 at 258 [226]). This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.
It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.
In the present case, there is no dispute as to what occurred on 4 September 2013 when Mr Leaver and Ms Percival travelled to Darwin. However, there is a serious and live contest as to whether the respondent was justified in dismissing the applicant and, in particular, whether the respondent’s dismissal of the applicant was for one of the prohibited reasons relied upon by the applicant in her pleading. At the hearing before me, Mr Leaver gave evidence flatly denying that his decision to terminate the applicant’s employment was for any of the prohibited reasons relied upon by the applicant. In addition, he endeavoured to explain his real reasons for taking that decision. He also testified that the decision was taken in August 2013, a week or two prior to 4 September 2013. He said that he travelled to Darwin in order to terminate the applicant’s employment rather than to discuss her performance with her with a view to counselling her to improve that performance.
If, at the trial, the evidence of Mr Leaver is accepted, the applicant will not succeed in her claims under the FWA.
It is not necessary for me at this stage of the proceeding to resolve the question of whether the applicant’s dismissal was taken for a prohibited reason and it would be inappropriate for me to do so. There is a sufficient temporal connection between the termination of the applicant’s employment on 4 September 2013 and her being absent from work on account of illness for me to conclude for present purposes that the applicant has raised a serious question to be tried as to whether her dismissal was taken for the reason that she was absent from work on sick leave. The fact that Mr Leaver did not give any reasons for terminating the applicant’s employment at the time that he did so also supports the applicant’s case that she was dismissed for one or more of the prohibited reasons upon which she relies.
The applicant also relies upon her breach of contract case in support of her current application for interim relief.
Counsel for the applicant submitted that the applicant’s current employment contract was not a contract for a fixed term but rather was a contract which, in the absence of being terminated by the giving of a notice in accordance with cl 7, would continue indefinitely. He did not, however, submit that the contract had, in fact, been extended by mutual agreement. He did argue, however, that the contract would be automatically extended if no four-month notice were given by the respondent pursuant to cl 7.
At the moment, I have considerable difficulty accepting these arguments. Clause 6 provides that the contract is a five year contract which will terminate by the effluxion of time on 2 February 2014. Clause 7 is a provision which permits the term of the contract to be extended but only by mutual agreement. The notice provision contained in the second sentence of cl 7 is merely a machinery provision requiring that party which does not wish to extend the life of the contract to give notice of that fact at least four months prior to 2 February 2014. I do not think that this notice requirement alters the fundamental nature of the contract as a fixed term contract.
Clauses 34 to 36 deal with termination. Neither party suggested that either cl 34 or cl 35 had any application in the circumstances of the present case.
Counsel for the applicant also submitted that cl 36 did not give to the respondent a general right to terminate the applicant’s employment on notice or otherwise during the life of the current employment contract. I think that this submission is probably correct.
If the above propositions concerning the applicant’s current employment contract are sound, the respondent’s actions in terminating the applicant’s current employment contract and thus her employment constituted breaches of her employment contract. This does not mean, however, that the termination of the employment relationship between the applicant and the respondent was not effective nor does it mean that her current employment contract is still on foot (see Sanders v Snell (1998) 196 CLR 329 at 338 [19] per Gleeson CJ, Gaudron, Kirby and Hayne JJ). As was the case in Sanders v Snell, the payment that was made by the respondent to the applicant in the present case was a payment in lieu of notice in the sense of being a payment made after the contract was brought to an end and intended to be set off against, and to extinguish, the damages that ordinarily would be payable for the wrongful termination of the applicant’s current employment contract.
In my judgment, the applicant has also established a prima facie case that Mr Leaver’s actions constituted a breach of her current employment contract.
As part of the final relief claimed by her, the applicant seeks reinstatement. Her application for interim relief directly relates to that claim for relief.
I do not think that the applicant’s current employment contract contains the implied term which I have extracted at [16] above. Such a term would be inconsistent with the express terms of the contract (it being for a fixed term) and need not be implied in order to give business efficacy to the contract.
I also think that the applicant cannot rely upon regs 4.2.3 and 4.2.4 of the respondent’s Division Regulations. She is not a member of the respondent. She is not entitled directly to enforce those regulations. They cannot sensibly be imported into her current employment contract. The question of Mr Leaver’s authority to dismiss the applicant may be investigated at trial. At the moment, however, the applicant has not satisfied me that Mr Leaver did not have authority to dismiss her or that the termination of her employment was ineffective because Mr Leaver had no authority to dismiss her.
I note that the applicant has proffered the usual undertaking as to damages and also agreed to refund to the respondent the amounts paid to her as a result of the termination of her employment as a condition of the grant of interlocutory relief.
I now turn to deal with the balance of convenience and justice.
The applicant points to alleged damage to her reputation as well as other financial consequences resulting from the dismissal. I have to say that, as far as reputational damage is concerned, most of that damage has already been done and is unlikely to be significantly repaired by any interim order. Also, I do not think that the applicant’s plans concerning superannuation should influence the outcome of the current application before me. She can always ameliorate the effect of the termination of her employment on her superannuation plans by making a lump sum contribution. The applicant also says that she was precluded from exercising her right to consult the Northern Division President with a view to saving her job. I do not think that this was as valuable a right as the applicant would have me accept. On the evidence at the moment, Messrs Durkin and Leaver were determined to remove the applicant. Mr Durkin had also apparently consulted with Council members about that prospect and received their support. The prospect of a process of consultation changing the outcome was remote.
There are several factors which militate against interlocutory relief.
First, the applicant has failed to demonstrate that damages will not be an adequate remedy. Indeed, there is good reason for thinking that the provisions of the FWA which govern the giving of compensation under that Act provide a foundation for an ample and generous award of compensation to the applicant which will not be confined to paying out the balance of her contract and other statutory entitlements.
Second, the relationship between the applicant and senior executives of the respondent has deteriorated to such a point that there is no trust and confidence remaining on either side of that relationship.
Third, the respondent has employed a replacement for the applicant who, on the evidence, has to relocate to Darwin from Brisbane and is required to commence employment next Monday, 25 November 2013. The respondent’s new employee has resigned from his former employment and the respondent has taken steps to integrate the new employee into the business and affairs of the Northern Division.
Fourth, the applicant has been guilty of serious delay. She was well aware that the respondent had advertised for a replacement soon after the advertisement was placed on 10 September 2013. She has not explained her delay in making the current application. She submitted that it was reasonable for her to endeavour to conciliate the dispute in Fair Work Australia. However, the fact that she was conciliating that dispute did not prevent her from commencing proceedings in this Court and does not provide any real explanation as to why she did not move earlier. The delay has been significant. The respondent has moved to replace the applicant, as it was entitled to do and the grant of an injunction at this stage would cause great disruption to the respondent. Applications for interim reinstatement of employment must be brought very promptly after termination.
Fifth, the applicant’s current employment contract has only two and a half months left to run. It is unlikely that the final hearing of her application in this Court will take place and be determined prior to the end of that contract term on 2 February 2014. The effect of any interim order at this stage would be to extend her employment beyond the fixed contractual end date. In my judgment, there is no warrant for such an outcome.
CONCLUSION
In all the circumstances, I refuse the applicant’s application for interim relief. The parties reminded me that I should not make any order for costs given that the applicant’s case is primarily one which has been brought under the general protection provisions of the FWA. Accordingly, I make no order as to costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 22 November 2013
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