United VOICE v Grill'd CAMBERWELL

[2015] FCCA 2060

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE & ANOR v GRILL’D CAMBERWELL & ORS [2015] FCCA 2060

Catchwords:
INDUSTRIAL LAW – Ruling on application for interlocutory injunctive relief. 

Legislation:

Fair Work Act 2009, s.345

Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
Kennewell v Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716

First Applicant: UNITED VOICE

Second Applicant: KAHLANI PYRAH

First Respondent: WALFAM PTY LTD (T/AS GRILL’D CAMBERWELL) A.C.N. 060 635 672

Second Respondent: MATTHEW WALKER

Third Respondent: BRADLEY WALKER

File Number: MLG 1652 of 2015

Judgment of: Judge Burchardt

Hearing date: 24 July 2015

Date of Last Submission: 24 July 2015

Delivered at: Melbourne

Delivered on: 27 July 2015

REPRESENTATION

Counsel for the Applicants: Mr Barkri

Solicitors for the Applicants: Slater and Gordon

Counsel for the Respondents: Mr Harrington

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

UPON THE FIRST AND SECOND APPLICANTS BY THEIR COUNSEL UNDERTAKING to:

(a)Submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof;

(b)Pay the compensation referred to in (a) to the person there referred to. 

THE COURT ORDERS THAT:

1. Until the hearing and determination of the application or further order the First Respondent reinstate the Second Applicant to the job or position that she held as a restaurant employee immediately before

   
   

   11 July 2015 on the basis that she will be on leave without pay until the hearing and determination of the application or further order. 

THE COURT DECLARES THAT:

1. Pursuant to s.45 of the Federal Circuit Court of Australia Act 1999 it is appropriate in the interests of the administration of justice to allow discovery in relation to this proceeding as ordered below.

THE COURT ORDERS THAT:

1. The Applicants have leave to file an amended application by 4.00 pm on 31 July 2015. 

2. The Applicants file and serve their Contentions of Fact and Law and any affidavits on which they intend to rely by 4.00 pm on 5 August 2015. 

3. The Respondents make discovery on or before 4.00 pm on 14 August 2015 of any documents created by the Second and Third Respondents or by Mr Williams or Mr Fuller as part of the investigation into

   
   

   Ms Pyrah’s alleged bullying. 

4. The Respondents file and serve their Contentions of Fact and Law and any affidavits on which they intend to rely by 4.00 pm on 19 August 2015. 

5. The Applicants file and serve any Contentions of Fact in Reply and any affidavits on which they intend to rely in reply by 4.00 pm on

   
   

   21 August 2015. 

6. There be general liberty to apply to the parties.

7. The matter be adjourned to this Court for final hearing before Judge Burchardt on 24 or 26 August 2015 at 10.00 am, with an estimated hearing time of 3 days. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1652 of 2015

UNITED VOICE

First Applicant

KAHLANI PYRAH

Second Applicant

And

WALFAM PTY LTD (T/A GRILL’D CAMBERWELL)
A.C.N. 060 635 672

First Respondent

MATTHEW WALKER

Second Respondent

BRADLEY WALKER

Third Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. By an application filed on 17 July 2015, the applicants seek the reinstatement of the second applicant to her employment with the first respondent.  The claim, filed contemporaneously with the application, alleges dismissal in contravention of a general protection provision. 

2. It is uncontroversial that the applicant started work as a waitress, with some ancillary other duties, with the first respondent in about April 2014.  She was dismissed on 11 July 2015.

3. The claim, from paragraphs 1 to 15, is about the second applicant’s alleged exercise of workplace rights and the alleged adverse actions said to flow from it. Paragraph 16 alleges false and misleading statements in contravention of s.345 of the Fair Work Act 2009 (“FW Act”). Paragraph 18 alleges failure to provide a Fair Work Information Statement in contravention of s.125 of the FW Act, and paragraph 19 alleges failure to pay entitlements in contravention of s.50 of the FW Act. The claim seeks compensation and pecuniary penalties.

4. Affidavits were filed in support of the application by the second applicant and also by a colleague, a Ms Kuhne-Martini.  The affidavits, as is the case with the respondents’ responding material, contain substantial amounts of inadmissible hearsay, opinion and conjecture, but this is, after all, an interlocutory hearing.

5. It is sufficient to say that by March 2015, on her version of the story, Ms Pyrah had developed concerned about her rates of pay and conditions.  She contacted United Voice.  She was told she could seek to terminate the first respondent’s Greenfields agreement.  She took steps to progress such an application, which came to the attention of management by no later than 23 March 2015.  Negotiations went, so to speak, backwards and forwards, but in the ultimate, on 29 June 2015 Ms Pyrah filed the application in the Fair Work Commission to terminate the Greenfields agreement.  That application, as I understand it, is listed before Commissioner Roe this coming Thursday.

6. This, however, was not the only set of relevant developments.  On

   
   

   17 June 2015, after the second and third respondent were clearly aware of Ms Pyrah’s challenge to the Greenfields agreement, she was told a bullying application had been made against her.  On 7 July 2015, the third respondent informed Ms Pyrah of a further bullying application.  It is sufficient for purposes to say that the bullying applications were the subject of investigation and led, on the respondents’ version of events, to Ms Pyrah’s termination of employment on 11 July 2015.

7. Putting the matter broadly, Ms Pyrah denies bullying and says that the whole affair was concocted to enable her to be sacked and that the true reason was her industrial activity.  The respondents say the opposite: the bullying was established and justified the dismissal.  Industrial activity was nothing to do with it.

8. Both applicants, who clearly march hand in hand, are vividly concerned that if Ms Pyrah is not reinstated, her capacity to pursue the application before Commissioner Roe will be compromised, if not extinguished, thus defeating the application itself.  The respondents have given an undertaking to the Court not to challenge her standing in the proceeding before Commissioner Roe.

9. Late in the day, the applicants have changed their position.  They now seek that Ms Pyrah be reinstated but not work and not be paid, pending further order.  That is slightly surprising, given the emphasis in

   
   

   Ms Pyrah’s affidavit material on the severe effects that lack of income would have on her.

10. I turn now briefly to the authorities.  The decision of the High Court in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 (“ABC v O’Neill”) is agreed to be the starting point, and what members of the Court had to say at [82] has recently been paraphrased by Rangiah J in another case as requiring a prima facie case in the sense that there is sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial, and consideration of the balance of convenience, which must favour the applicants.

11. The test has been set out in a number of slightly different nuanced ways, but I understand both counsel to accept that the two-part ABC v O’Neill test, in other words, the prima facie case as there described and the balance of convenience, applies here.  It is worth remembering, however, that as recently as last week, Tracey J said in Kennewell v Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716 (“Kennewell”) at [75] and following:

    “[75] In Slonim v Fellows(1984) 154 CLR 505 at 515 Wilson J (with whom Mason and Deane JJ agreed) said that:

    … the power to direct that A employ B is a very drastic one … it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.

12. His Honour went on at [76]:

    “Notwithstanding these cautionary admonitions, there have been decisions in this court which are supportive of the proposition that reinstatement is appropriate “in the ordinary case” in which an applicant’s employment has been terminated for a proscribed reason. (Authorities omitted). The position remains, however, that the discretion, vested in the court by s 545, falls to be exercised in the peculiar circumstances of each case.”

13. I would say for my own part that having looked at the authorities that Tracey J referred to, it is apparent that a number of judges of the Federal Court have indeed observed that where dismissal is proven to have taken place because of adverse action, then reinstatement might be thought to be the ordinary remedy.

14. There are a number of points to be made.  First, both applicants have given the usual undertaking as to damages. 

15. The respondents concede for these purposes that there is a prima facie case.  They say, however, it is weak.  Scarcely surprisingly, the applicants say it is strong.  Given the refined and limited nature of the interlocutory dispute as it presently stands, it is neither necessary or appropriate for me to determine the competing positions the parties advance.  This will all be sorted out at trial, and that will not take long.

16. Turning to the balance of convenience, first, Ms Pyrah does not now seek to actually return to work and be paid.  Counsel for her put this as showing some greatness of spirit.  That is quite possible, but this late change of position smacks of being a tactical shift to improve position.  However, nonetheless, this removes for the moment the significant concerns expressed in the respondents’ affidavits about interpersonal relationships if Ms Pyrah were to be reinstated. 

17. Further, it is, as the respondents submit, a novel application.  Neither counsel could refer me to any case in which the precise form of order the applicant now seeks has been made, but I emphasise there has been no submission that it is beyond the Court’s power to make such an order.  Indeed, I am aware of cases where employees have been reinstated but not actually worked.  They have usually been paid by the employer, funnily enough.  But the fact is that such an order is not wholly, as it were, outside the industrial landscape.  Leave without pay is a feature known to it.

18. Next, the respondents do not identify any real detriment if the order that the applicants seek is made, apart, obviously, from keeping on their books someone they don’t want. 

19. The order would remove any possible doubt over Ms Pyrah’s standing to pursue her application to remove the Greenfields agreement.  Whatever the respondents’ position may be, it is clear that the application to remove the Greenfields agreement is at the forefront of the applicants’ aims.  There is nothing improper in that, and they are perfectly entitled to pursue it.

20. I say for my part that I accept counsel for the respondents’ submissions about the lack of likelihood a successful challenge to Ms Pyrah’s standing.  As is often the case in industrial disputes, a third party, like me, is left with the suspicion that the real issues between the parties are not necessarily the ones thus far articulated. 

21. I am keenly aware that both sides are eager to be perceived as winning this interlocutory fight, but I am going to order a trial to commence in the week commencing 24 August 2015 on a day yet to be specifically identified. 

22. Concern has been expressed by both sides as to the scale of this proceeding and, as a result, whether it will be possible to be ready by that date.  I propose, however, subject to submissions, to split the trial.  I propose to hear the adverse action with its interrelated reinstatement application first.  The material in relation to that trial is essentially already filed, although there will need to be some refinement to remove inadmissible material.  Reinstatement applications, and I am assured that Ms Pyrah does press her reinstatement application, are plainly ones that must be determined in a rapid way. 

23. In these circumstances, the balance of convenience favours the applicants.  There may be, in truth, no advantage to the applicants as Ms Pyrah’s standing before Commissioner Roe seems, in my view, secure, but on any view the applicants are clearly very concerned about it.  By contrast, there is no identifiable detriment to the respondents.  They do not have to pay Ms Pyrah any money.  Her aggravating presence, from their point of view, will not be there, and if the respondents are successful, this order will only operate for a short time.  Even if Ms Pyrah is successful, reinstatement itself will plainly, as Tracey J pointed out in Kennewell, still be in issue. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date: 5 August 2015