Streeton v Glaxosmithkline Australia Pty Ltd
[2008] FCA 1205
•9 July 2008
FEDERAL COURT OF AUSTRALIA
Streeton v Glaxosmithkline Australia Pty Ltd [2008] FCA 1205
CATHERINE STREETON v GLAXOSMITHKLINE AUSTRALIA PTY LTD
VID 520 OF 2008
JESSUP J
9 JULY 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 520 OF 2008
BETWEEN:
CATHERINE STREETON
ApplicantAND:
GLAXOSMITHKLINE AUSTRALIA PTY LTD
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
9 JULY 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The motion, of which the applicant gave notice on 7 July 2008, be refused.
2.The applicant have leave to file and serve an amended statement of claim, any such amended statement of claim to be filed and served on or before 23 July 2008.
3.The respondent file and serve its defence on or before 6 August 2008.
4.The proceeding be referred to mediation in accordance with the Rules of Court, such mediation to take place by arrangement in the week commencing 11 August 2008 and the mediator to report the outcome thereof to the court by 20 August 2008.
5.The trial of the proceeding be on affidavit, with rights to cross-examination in accordance with the Rules of Court.
6.The applicant file and serve the affidavits upon which she proposes to rely at trial on or before 5 September 2008.
7.The respondent file and serve the affidavits upon which it proposes to rely at trial on or before 19 September 2008.
8.The proceeding be fixed for trial at 10:15am on 6 October 2008, with an estimate of 3 days.
9.Each party have liberty to apply on 24 hours’ written notice to the other party.
10.Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 520 OF 2008
BETWEEN:
CATHERINE STREETON
ApplicantAND:
GLAXOSMITHKLINE AUSTRALIA PTY LTD
Respondent
JUDGE:
JESSUP J
DATE:
9 JULY 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By Application supported by a Statement of Claim filed on 7 July 2008, the applicant, a medical practitioner in the employ of the respondent, seeks relief under Division 7 of Part 7 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) in relation to an alleged contravention of s 280(3) of that Act. In her Statement of Claim, the applicant also alleges a repudiation by the respondent of her contract of employment, the result of which was that she has suffered loss and damage, and the making by the respondent of various representations which were misleading or deceptive within the meaning of Part V of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”). The matter which has come before me on short notice this afternoon is the applicant’s application for interlocutory relief. In connection with that application, she relies upon her cause of action under the WR Act, and it is to that matter that I need to address myself hereafter.
The applicant was, until events which have become controversial in this proceeding, employed by the respondent as Associate Medical Director, HPV Vaccines, Australasia. In January 2008, the applicant commenced a period of maternity leave pursuant to an application form which she had completed on 20 November 2007 and upon which she specified 2 July 2008 as the date of her return from the maternity leave which she sought. According to the affidavit in opposition filed on behalf of the respondent, the respondent recruited another medical practitioner to fill in for the applicant whilst the latter was on maternity leave.
In late May 2008, the applicant communicated with the Director of Clinical Research and Development and Medical Affairs, Australasia, of the respondent, Dr Su-Peing Ng, about her return from maternity leave. A series of consultations between the applicant and representatives of the respondent followed, in the course of which it was proposed and, subject to the matters which are otherwise controversial, it seems to have been more or less agreed, that the applicant would recommence work with the respondent on a part-time basis, that is, for two days in each week.
What has become controversial are the terms under which the respondent has been prepared to have the applicant back at work, including the title of the position which she would occupy, and the status of that position in the reporting lines of the respondent. The position taken by the respondent about which the applicant complains is compendiously set out in a letter from Ms Janine Staples, the Senior Human Resources Consultant of the respondent, to the applicant dated 20 June 2008. That letter is in the following terms:
Your return to work from maternity leave
Further to our discussions on Monday 16 June 2008 and previously, the purpose of this letter is to discuss with you the arrangement under which you will return to work from maternity leave.
As you are aware, prior to commencing your maternity leave on 3 January 2008, your title was Associate Medical Director. This is despite the fact that, for some period, you worked in this role when the research and development function (which was 50% of that role), as well as the people management function and responsibility for pharmacovigilance and medical information, had been taken away from the role.
As discussed with you, GSK has reviewed the functions of your role and has determined that your role is properly characterised as that of a Medical Advisor. This is consistent with the classification of roles which applies throughout the business.
You are due to return to work on 3 July 2008. In accordance with your request, GSK has agreed that, for the first 6 months of your return to work, you will work 2 days per week. During this period, you will perform project work and your title will be “Medical Project Manager”. To confirm, on your return to work, you will continue to:
· receive the same terms and conditions (including salary – which will be pro rated) as those which you received prior to you commencing maternity leave; and
· perform the same functions which you performed for some time prior to commencing maternity leave.
Your salary will continue to be benchmarked against the role of Medical Advisor. The only different will be your title.
After you have successfully completed the 6 months of project work, your title will be that of Medical Advisor, in line with the functions you perform and the company’s classification of roles. Your days of work will be subject to further review and agreement at this time.
We look forward to your return to work. If there is anything that we can do to assist you, please do not hesitate to contact me.
Ms O’Brien, who represented the applicant this afternoon, submits that the letter, and the other indications recently given by the respondent, demonstrate that four significant elements of the applicant’s erstwhile position with the respondent either have been, or are in the course of being, materially altered, namely, the title of the position (from Associate Medical Director to Medical Advisor), the salary band within which it is proposed that the applicant’s new position will sit (which is said to be the salary band of a Medical Adviser rather than that of an Associate Medical Director), the proposed removal of certain important research and other professional functions which pertain to the applicant’s previous position as Associate Medical Director, and the status of the position as evidenced by the organisational reporting lines of the respondent.
According to the applicant’s case, the circumstances to which I have referred give rise to a contravention of s 280 of the WR Act. According to s 280(1), the section “applies to an employee who returns to work after a period of leave, including (or constituted by) maternity leave,” to which the section refers as “the maternity-related leave period.” A condition of the application of the section is that the employee have given her employer “written notice of the proposed date of her return to work no later than 4 weeks before that day.” Ms O’Brien relied upon the specification of 2 July 2008 in the applicant’s application for maternity leave, completed in November 2007, as constituting that notice, and at least for the purposes of this interlocutory application, I am prepared to accept that it is arguably so.
According to subsection (3) of s 280, and subject to subsections (4) and (5) thereof, the employee who has been on maternity-related leave is “entitled to … return to the position she held immediately before the start of the maternity-related leave period.” The applicant comes to court to assert that entitlement, and contends that the conduct of the respondent over the last seven weeks or so makes it clear that the respondent will deny her, or has denied her, that entitlement. The applicant says that the respondent is offering her a position which is materially inferior to that which she previously occupied.
Mr Dalton, who represented the respondent this afternoon, submitted that the applicant had not given written notice of the proposed day of her return to work as required by s 280(1)(a). As I have indicated above, I would hold that the applicant’s written application, completed in November 2007, arguably constitutes such notice.
However, Mr Dalton pointed out that the applicant does not propose and has not asserted a right to exercise the entitlement referred to in s 280(3), namely, to return immediately to the position previously held. He submits on behalf of the respondent that the applicant proposes only that she return to a period of part-time employment and appears not to be ready to occupy the position previously held, which was a full-time one. In response to that, Ms O’Brien submitted that it is quite beside the point that the applicant should, as a matter of convenience, arrange to work for two days a week for the respondent, pending the full take-up by her of her entitlement under s 280. It is submitted that the facts of the case demonstrate that the entitlement itself is denied by the respondent and that the court should make an interlocutory order to restore that entitlement to the applicant.
The orders which the applicant seeks on an interlocutory basis are as follows:
Until further order the [Respondent] be restrained from, whether by his officers, delegates, employees, agents or howsoever otherwise:
A.Contravening its obligations to return the Applicant to the position title she held immediately before the start of the maternity related leave period being the position Associate Medical Director.
B.Contravening its obligation by requiring the Applicant to accept a position of medical advisor which position is subordinate in status to her position immediately before the start of the maternity related leave;
C.Contravening its obligation by requiring the Applicant to accept salary banding for the position of Medical Advisor.
D.Contravening its obligation by requiring the Applicant to report other than to the (Executive) Medical Director – Dr. Michael Elliott.
As I indicated during the course of argument, whatever might be the applicant’s entitlement to an interlocutory restraint, I would not be disposed to make orders in those terms for two reasons at least. First, they are nowhere near specific enough to clearly define the obligations of a respondent bound by an interlocutory order; and secondly, by use of the expression “contravening its obligation”, these proposed orders beg the very question which the applicant’s proceeding seeks to have answered and which the respondent puts in issue. However, I shall treat the applicant as seeking the making of interlocutory orders, however they should be framed, which would have the practical effect of requiring the respondent to recognise and treat her as its Associate Medical Director, in the same position as she occupied before she commenced her period of leave, for the purposes of any full-time or part-time employment which she takes up, or negotiates to take up, with the respondent between now and the trial of the action.
The function of the court on occasions such as this has been recently stated by the High Court in ABC v O’Neill (2006) 227 CLR 57 at 68 and 82. At page 82 of the report, in a passage with which the Chief Justice and Crennan J agreed, Gummow and Hayne JJ confirmed that the test to be applied was that articulated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 to 623. That is to say, the court is required to address itself to two main inquiries; namely: 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 and 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. Gummow and Hayne JJ went on to say that by using the phrase “prima facie case”, their Honours in Beecham did not mean that the plaintiff must show that it was more probable than not that at trial he or she would succeed – it was sufficient that the plaintiff show, say, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. Their Honours referred to and emphasised the significance of something else said in Beecham, at page 622, in relation to the first requirement. Their Honours in Beecham had said:
How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks.
In the present case, the applicant asserts the right to return from maternity leave to the position which she occupied prior to departing on leave. Whether the pre-conditions for the existence of that right have been satisfied is a matter of controversy in this case. It is not my function to attempt to make findings that will be required at trial in relation to that controversy. The question essentially is what steps should now be taken to protect the ability of the court to do justice to the applicant’s case at the final hearing of the proceeding, that is to say, to ensure that the jurisdiction of the court will not be frustrated.
I am satisfied that the applicant has made out a prima facie case in the sense set out by Gummow and Hayne JJ in ABC v O’Neill. That is to say, I consider it to be fairly arguable that the arrangements made or proposed by the respondent for the applicant’s return to work do not involve a return to the position she previously held. Because of the provisional nature of those observations, it is best that I say nothing further about it, but move to the question of the balance of convenience.
The position seems to be more or less as follows: the respondent is prepared to take the applicant back into its work organisation, to employ her there on a part-time basis for two days a week, and to accord to her, pro-rata, the same salary and the same benefits of employment which she previously enjoyed when working full-time. I use the expression “benefits” in this sense to refer to the material benefits of the employment, rather than to the aspects of the position which are controversial in this case. The applicant, for her part, appears to desire to work part-time only, at least for the time being. Ms O’Brien pointed out that the applicant could, if she chose, remain on maternity leave for a further period of six months or thereabouts, and that she might yet choose to do so. However, to the extent that she desires to return to work immediately, it would seem that the days and times of work and the remuneration which the respondent is prepared to offer would be satisfactory from the applicant’s point of view.
As against this, it appears from the affidavit upon which the respondent relied that there is a continuing need for the responsibilities previously discharged by the applicant to be performed on a full-time basis, and that there is a practitioner doing so at the present time. The proposal that the applicant work part-time for the time being, therefore, cannot be regarded either as a complete satisfaction of the respondent’s need to have the full duties of the relevant position discharged or as resolving the difficult questions which arise in the application of s 280 of the WR Act in the circumstances of the case.
Considerations as to the balance of convenience are always intensely pragmatic ones, and while I appreciate the applicant’s position that the respondent’s part-time proposal, as it were, would involve work at a lower status, and with lesser professional responsibilities, than those to which she claims to be entitled to return under s 280, I consider that the arrangements to which the respondent is prepared to agree would substantially meet the material concerns of the applicant in that they would provide her with employment at the level that she desires and on the salary which she previously enjoyed.
I indicated to the parties that I would make directions to ensure that the case was brought on with expedition, so that the claims of the applicant could be resolved at a final hearing before the end of the year, and that those claims could be mediated in the course of the time which passes between now and the trial. I take the view, therefore, that on balance the applicant’s position will be sufficiently protected by the arrangements proposed by the respondent and to which, other than the matters which are controversial in the proceeding, she appears to have provisionally agreed.
In the circumstances, I would refuse the application for an interlocutory injunction.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 12 August 2008
Counsel for the Applicant: Ms F O'Brien Solicitor for the Applicant: Riordans Lawyers Counsel for the Respondent: Mr R Dalton Solicitor for the Respondent: Freehills
Date of Hearing: 9 July 2008 Date of Judgment: 9 July 2008
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