SETCHELL v Alkira Centre Box Hill Inc
[2009] FMCA 288
•15 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SETCHELL v ALKIRA CENTRE BOX HILL INC | [2009] FMCA 288 |
| HUMAN RIGHTS – Interim injunction to preserve employment pending determination of complaint before the Australian Human Rights Commission – termination notice served on applicant – complaint lodged at Commission alleging unlawful discrimination on grounds of disability and age. |
| Age Discrimination Act 2004 Disability Discrimination Act 1992 Human Rights and Equal Opportunity Commission Act 1986, s.44PP |
| Applicant: | DIANA SETCHELL |
| Respondent: | ALKIRA CENTRE BOX HILL INC |
| File Number: | MLG 61 of 2009 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 1 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bingham |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondent: | Mr Rinaldi |
| Solicitors for the Respondent: | Middletons |
ORDERS
The application filed on 19 January 2009 is dismissed and the interim injunction made that day is discharged.
The applicant pay the respondent’s costs fixed in the sum of $3,637.50
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 61 of 2009
| DIANA SETCHELL |
Applicant
And
| ALKIRA CENTRE BOX HILL INC |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding came before me on 19 January 2009 on an application for an interim injunction pursuant to s. 46PP of the Human Rights and Equal Opportunity Commission Act 1986 (the Act) to restrain the applicant's employer from putting into effect a termination notice served on her on 16 December 2008 and which was to take effect on 20 January 2009.
The court's jurisdiction was enlivened by the fact that on the same day the application was filed, the applicant had lodged a complaint with the Human Rights and Equal Opportunity Commission, which organisation has more recently styled itself as the Australian Human Rights Commission (the Commission).
The complaint at the Commission alleged unlawful discrimination on the ground of disability under the Disability Discrimination Act 1992 and the ground of age under the Age Discrimination Act 2004.
On 19 January 2008 the parties consented to an interim injunction pending the hearing before me on 9 April 2009. It was acknowledged by both parties that the complaint would, from past experience, take some months to be processed in the Commission, potentially up to 12 months, and thereafter, should it come to this court or the Federal Court for a determination, then another six months or so. Accordingly, there is the real prospect that a final judicial determination of the complaint may be 12 to 18 months away and any interim injunction granted could have a corresponding life.
This reality is a significant and, in my view, a determinate consideration in persuading me whether or not to exercise my discretion to grant an injunction as sought.
Background
By way of general background, the applicant is a 62-year-old instructor who has been employed for approximately 22 years by the respondent. The respondent is a not-for-profit provider of services to adults with intellectual and other disabilities. It operates from a number of sites, although it is the applicant's employment at two sites that is central to the applicant's complaint. She had been employed at one over a long period of time until a more recent transfer, against her wishes, to another.
The respondent relies on government funding and suffers, as I understand it, an operating deficit each year, which deficit it funds by way of any cash reserves generated from public donation. In short, the respondent contends its operation is subject to limited funding and any impost by way of having to employ extra help to assist the applicant to perform her duties would amount to an unjustifiable hardship.
Whether the respondent is so fiscally constrained and whether the employment of assistance for the applicant is an unjustifiable hardship, should indeed it be required, are, in my view, triable issues.
Central to the issues in dispute is the applicant's health and her capacity to perform the inherent duties of her position. Over the years there have been a number of work incidents suffered by the applicant resulting in injury to her which have rendered her unable to work for varying periods. However, more recently, she sustained further injury or an exacerbation of prior injuries, and degenerative changes. This, coupled with the change of location and duties, saw the applicant unable to work from October 2008 to the date of service of the termination notice.
Since the interim injunction was made on 19 January 2009, there has been a work study assessment done. Both parties rely to varying degrees on the outcome. Suffice to say, the applicant now contends she is capable of returning to work to perform her usual duties at the former site where she has longstanding relationships with core clients, but she acknowledges she will need some assistance in performing the physical tasks required of her. There is dispute between the parties as to what degree that assistance is needed. In my view, there is a triable issue on these aspects of the case.
In addition to the considerations required under section 46PP of the Act for the granting of an interim injunction, there are also general principles to be applied. In summary, they are the need to show that there is, or are, triable issues between the parties and the question of the balance of convenience.
In respect of the question of triable issues, I have already identified some. On the material before me, it is not so obvious as the respondent would have me believe that the position of the applicant is hopeless or fanciful. The threshold for the applicant to meet in this regard is not high.
The respondent submitted that the medical evidence supported a conclusion that the applicant did not have the physical capacity to undertake the inherent duties of her position. Accordingly, the respondent would be forced, it was submitted, to employ a full‑time person to assist her with the physical tasks which are inherent in her position. Because the respondent is a not‑for‑profit organisation with fiscal restraints, it is submitted to be forced to employ such a person would amount to unjustifiable hardship. On the evidence before me, at an interim hearing such as this, I cannot sensibly conclude that the issues raised are not triable.
Arguable case
On the general questions of whether the applicant has an arguable case and whether there are triable issues, I have no difficulty in finding that there is, and are. These issues are clearly identifiable. To name a few, there is the question of the capacity of the applicant to perform the inherent duties of the job. Indeed, what exactly are those inherent duties. What, if any, level of assistance needs to be provided and if assistance is needed, what is the burden of providing it, including the financial capacity of the respondent to do so and whether it amounts to an unjustifiable hardship being imposed on it.
Balance of convenience
The determinate consideration, in my view, in this case is simply the question of the balance of convenience. The applicant contends that it falls in her favour for a number of reasons. First, if she is terminated, then the programs designed for the care of her core clients that she has looked after in the past would be designed without regard to her particular skill set and would then make it difficult for her and her core clients should she be reinstated after a successful outcome.
Secondly, her relationship with core clients would suffer - the situation I took the applicant to be inferring would be detrimental to client’s with disabilitie’s she has cared for over a significant period of time.
Thirdly, her superannuation situation would be significantly affected. She is a member of a defined benefits scheme and bearing in mind the probable period of time before she could be reinstated and be in the position therefore to rejoin the scheme, she would not be able to do so.
It was agreed between the parties that the applicant would only have four weeks, with possible extensions, in which to maintain her membership of the scheme should she be terminated. Her chance is of employment elsewhere in that period, it would appear conceded, are remote. She would therefore suffer significant financial hardship if her membership of the scheme ceased in these circumstances and she would have to take her benefit based on her present income.
Not surprisingly, the respondent submits that the balance of convenience falls in its favour. First, the respondent argues that any loss suffered by the applicant can be compensated should the applicant prove successful. This is obviously so in respect of the loss of wages and also, in my view, in respect of any financial loss occasioned in respect of the superannuation scheme. The scheme is a defined benefits scheme which makes the loss suffered more readily calculable.
Whilst I cannot make a final determination of whether the applicant can perform the inherent duties of the job, there is ample evidence to suggest that she would need assistance should she return to work and that assistance would require the employment of extra staff.
One cannot ignore the reality of the respondent's position in respect of finances and the service it provides. The respondent would be, in my view, significantly inconvenienced and disadvantaged should it have to employ help for the applicant. Should the applicant continue with her application, but prove ultimately unsuccessful in her complaint, then any money paid to her by way of wages would not be recoverable by the respondent, which again would be an impost on the respondent that would tip the balance of convenience in its favour.
The injunction, if granted, has the potential to be onerous and long term. The expense and inconvenience to the respondent of lengthy forced continued employment of the applicant, in my view, greatly outweighs the inconvenience to the applicant where she may be reinstated or compensated, or both, in due course if she succeeds in her complaint.
Conclusion
On the general principle in respect of the balance of convenience, I find it falls in favour of the respondent and on that basis alone, the interim injunction should not be granted.
Because of that finding, I do not need to consider the other considerations that would otherwise entitle the applicant to an injunction as provided for in section 46PP of the Act; namely the maintenance of the status quo and the rights of the applicant.
The order I intend to make therefore is that the application filed on 19 January 2009 be dismissed and the interim injunction made that day be discharged.
Costs
There is no question, I do not think, that costs should follow the event in these circumstances and also that the amount being claimed by way of costs are reasonable in all the circumstances and indeed comply with the scale of costs set out in the rules applicable in this court, which scale is generally designed to reflect a less expensive process than perhaps in other courts. So I am satisfied that I ought to make an order for costs in the sum of $3637.50.
The other issue is as to when that amount should be made payable. I am of the view that it would be appropriate, particularly in the nature of these sorts of cases, that there be a stay on the payment of costs until the determination of the complaint, whether at the Commission or at court.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 15 April 2009
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