Seremetis v Mosman Municipal Council

[2013] NSWADT 108

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Seremetis v Mosman Municipal Council [2013] NSWADT 108
Hearing dates:	22 April 2013
Decision date:	22 April 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Application for interim order refused
Catchwords:	INTERIM ORDER - applicant seeks order to prevent former employer from advertising and filling his position - tests are prima facie case and balance of convenience - no inconvenience to applicant
Legislation Cited:	Anti-Discrimination Act 1977 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Australian Broadcasting Corporation v O'Neill 482 [2006] HCA 46; (2006) 227 CLR 57
Category:	Interlocutory applications
Parties:	Nicholas Seremetis (Applicant) Mosman Municipal Council (Respondent)
Representation:	Mr R Crow (Respondent) In person (Applicant) Ms A Koelmeyer, Workplace Law (Respondent)
File Number(s):	131024

EX tempore REASONS FOR DECISION

1. The applicant has applied for an interim order under s 105 of the Anti-Discrimination Act 1977 (AD Act) to stop Mosman Municipal Council from advertising and filling the role of Manager of Ranger Services before his complaint is determined and adjudicated. The application is under s 105 of the AD Act, which states that:

105 Interim orders

(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

pending determination of the matter the subject of the complaint.

(2) Section 89 of the Administrative Decisions Tribunal Act 1997 applies to an interim order of the Tribunal in the same way as it applies to an original decision of the Tribunal.

1. There are two tests that the Tribunal needs to apply in determining whether to grant an interim order, and they were set out by the High Court in the case of Australian Broadcasting Corporation v O'Neill 482 [2006] HCA 46; (2006) 227 CLR 57:

The first is whether 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 ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

1. Looking at the first test, the need for a prima facie case, Mr Seremetis complained to the Anti-Discrimination Board of discrimination on the ground of carer's responsibilities and victimisation. Later he added the ground of disability discrimination and another complaint of victimisation. The matter was accepted for investigation and a conciliation conference has been listed for 15 May 2013. Meanwhile, the applicant has applied to the Tribunal for an interim order preventing the Council from advertising his former position or filling the role.

1. The brief background is that the applicant commenced employment with the respondent as a Manager, Ranger Services on 21 May 2012. He was on six months probation when appointed to that position. The Council terminated his employment within the probationary period on 12 November 2012. The applicant asserts that due process was not followed in relation to the termination and that the Council has not followed its own policies and procedures. He has also claimed workers compensation and applied for documents under the Government Information (Public Access) Act 2009. As well, he has complained to the Tribunal under the Privacy and Personal Information Protection Act 1998.

1. The present complaint concerns alleged acts of discrimination in breach of the AD Act. There is material on the file to which I was referred about the basis of those complaints. The Council disputes that it has discriminated against or victimised the applicant. I am not in a position today to make any findings, even on a prima facie basis, about the merits of the complaint. The factual situation is quite complicated. There are several relevant documents and no witnesses have been examined or cross examined at this stage. So I put to one side the question about the strength of the applicant's case.

1. Assuming, for the purposes of these proceedings, that the applicant has a prima facie case, the second enquiry is whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs the injury that the respondent would suffer if an interim order were granted.

1. The applicant would suffer no inconvenience or injury if the application is refused. That is because even if the position is filled and the Tribunal subsequently finds the complaint substantiated, it could make an order for reinstatement. If that happened, the Council would be legally bound to comply with that order regardless of whether or not someone else has been appointed to the applicant's position.

1. Mr Crow, representing the Council, told the Tribunal that the position has been advertised and that the closing date for applications was 19 March 2013. I take the view that the recruitment process should proceed. It would obviously seriously inconvenience the Council if it cannot fill that role. This is a position which supervises some eight people. It is not sustainable in the long term for that position to remain unfilled.

1. Because the only inconvenience is on the Council's side, the balance of convenience lies in favour of the Council. The application for an interim order preventing the Council from filling the position of Manager of Ranger Services is refused.

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Decision last updated: 17 May 2013