Wu v United Overseas Bank Ltd, Sydney Branch (No 4)
[2022] FedCFamC2G 228
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch (No 4) [2022] FedCFamC2G 228
File number(s): SYG 1844 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 1 April 2022 Catchwords: INDUSTRIAL LAW – application for interim injunction for reinstatement – whether there is a serious question to be tried that applicant is entitled to a final order for reinstatement – assuming there is a serious question to be tried about whether applicant will suffer any detriment if interim injunction not granted but at the final hearing applicant is granted order for reinstatement – no detriment – whether respondent employer will suffer any detriment if interim injunction is granted but at the final hearing applicant is not granted an order for reinstatement – respondent will suffer a detriment – application for interim injunction for reinstatement dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 545(1), 545(2) Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Byrne v Australia Airlines Ltd (1995) 185 CLR 410
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Ltd [2009] FCA 726
Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582
Quinn v Overland [2010] FCA 799
Wu v United Overseas Bank Ltd, Sydney Branch (No 2) [2021] FedCFamC2G 264
Division: Fair Work Number of paragraphs: 23 Date of hearing: 22 March 2022 The Applicant: Appeared in person, by video Counsel for the Respondent: Ms K Nomchong SC Solicitor for the Respondent: Allens ORDERS
SYG 1844 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAOXIAN WU
Applicant
AND: UNITED OVERSEAS BANK LTD, SYDNEY BRANCH
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.The applicant’s application for an interim injunction for reinstatement is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Wu, applies for an interim injunction that her employment with the respondent (UOB) be reinstated pending the determination of her claim that UOB had terminated Ms Wu’s employment in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).
I have set out in a judgment I published on 17 November 2021 (earlier judgment) the facts and asserted facts out of which Ms Wu filed her application for an interim injunction for reinstatement;[1] and these reasons should be taken to incorporate paragraphs 8 to 44 of the earlier judgment.
[1] Wu v United Overseas Bank Ltd, Sydney Branch (No 2) [2021] FedCFamC2G 264
I will begin by identifying some principles that apply to Ms Wu’s application for an interim injunction for reinstatement.
PRINCIPLES
Under s 545(1) of the FW Act this Court has power to make any order the Court considers appropriate if the Court is satisfied a person has contravened, or proposes to contravene, a civil remedy provision. Subsection 545(2) of the FW Act identifies a non-exclusive list of orders the Court may make. These include an order granting an “interim injunction”, and an order for “reinstatement of a person”.
An “injunction” is “an order that a person do something or refrain from doing something”; and an “interim injunction” is “an order of that kind made pending some further event, most often the final resolution of the matter in which the interim order is made”.[2] An “interim injunction” in s 545(2)(a) of the FW Act includes an order requiring an employer to reinstate an employee who has been dismissed pending the determination by the Court of an application by the employee for a final order for reinstatement.[3] The principles that govern the exercise of the power that courts of equity have to grant injunctions to preserve the status quo pending the determination of a claim for a remedy have been applied to the exercise of the power conferred by s 545(2)(a) of the FW Act to order an interim injunction, including an interim injunction for reinstatement.[4]
[2] Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582, at [42]
[3] Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582, at [45]
[4] Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582, at [9]
As I noted in the earlier judgment, a commonly referred statement of the relevant principles for the granting of an interim injunction is that given by Mason ACJ in Castlemaine Tooheys Limited v South Australia:[5]
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.
[5] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, at [11]; (1986) 161 CLR 148, at page 153
The words “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” are from the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.[6] The meaning of these words was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill:[7]
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
[6] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1, at [4]; (1968) 118 CLR 618, at page 622
[7] Australian Broadcasting Corporation v O’Neill [2006] HCA 46, at [65] (footnotes omitted)
The strength of the case an applicant must demonstrate will vary with “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order [the applicant] seeks”.[8] One potential practical consequence that must be borne in mind is whether the grant or refusal of an interim injunction, in effect, would dispose of the action finally in favour of whichever party succeeded on that application.[9]
[8] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1, at [4]; (1968) 118 CLR 618, at page 622
[9] Australian Broadcasting Corporation v O’Neill [2006] HCA 46, at [72], per Gummow and Hayne JJ
It has been said that to warrant the exercise of the Court’s discretion to grant an interim injunction for reinstatement of employment the applicant must show “a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial”.[10] Here “status quo” means “the status quo ante”, that is, the position the employee was in immediately before the purported termination of his or her employment.[11] It is necessary to note, however, that the likelihood of success must relate to the likelihood of success in obtaining a final order for reinstatement. If, for example, an applicant establishes he or she has a prima facie case that by terminating the applicant’s employment the employer contravened s 340(1) of the FW Act, but the applicant is unable to demonstrate there is a serious question to be tried about whether the applicant will be granted an order for reinstatement, the applicant would not be entitled to the grant of an interim injunction for reinstatement.
[10] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Ltd [2009] FCA 726, at [21]. This was said in relation to a predecessor to s 545(2) of the FW Act.
[11] Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582, at [46]
Courts exercising equitable jurisdiction have traditionally applied the rule that “a court will not, save in exceptional circumstances, order specific performance of a contract of personal service”.[12] That rule, however, is of little, if any, significance, in relation to the exercise of a statutory power to reinstate a person to his or her employment. A statutory power to order reinstatement is usually discretionary. That is the case with s 545(2)(c) of the FW Act, which identifies an order for reinstatement of a person as one of the orders the Court “may make” under s 545(1) of the FW Act. And the courts have identified a number of matters that are relevant to the exercise of the discretion, two of which are particularly relevant.
[12] Byrne v Australia Airlines Ltd (1995) 185 CLR 410, at page 428
The first is whether there has been a loss of trust and confidence by the employer in the employee or, more precisely, whether, if an employee were reinstated, there will be a sufficient level of cooperation for a proper working relationship to resume between the employee and the employer. This point was made by Bromberg J in Quinn v Overland:[13]
Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential.
[13] Quinn v Overland [2010] FCA 799, at [98]
It may therefore be appropriate to order reinstatement if, notwithstanding an employer’s asserted lack of trust and confidence in the employee, a sufficient level of cooperation for a proper relationship can resume; but it would be difficult to imagine a court ordering reinstatement in the absence of evidence that shows that, on the employee being reinstated, there will be a sufficient level of cooperation for a proper working relationship between the employer and the employee.
The second factor is whether damages would be an adequate remedy.
SERIOUS QUESTION TO BE TRIED?
I am satisfied that, given the matters I have set out in the earlier judgment, there is a serious question to be tried about whether UOB contravened s 340(1) of the FW Act by terminating Ms Wu’s employment. That, however, does not mean there is a serious question to be tried about whether Ms Wu will be entitled to the remedy of reinstatement if she were to succeed in establishing UOB contravened s 340(1) of the FW Act.
In its counsel’s written submissions UOB submitted that reinstating Ms Wu would result in dysfunction. UOB relied on Ms Wu having openly alleged that UOB had committed serious breaches of its ethical and legal obligations, and that Ms Wu has made seriously derogatory and critical comments about some managers and employees of UOB. Counsel for UOB also relied on matters Ms Wu submitted at the hearing before me in response to questions I asked about why compensation would not be an adequate remedy, assuming Ms Wu were to succeed in establishing UOB contravened the FW Act. It would be appropriate to reproduce the transcript of Ms Wu’s submissions:[14]
[14] T19.35-T20.45
HIS HONOUR: . . . . If you succeed in your claims that your – that the respondent has contravened the Fair Work Act.
MS WU: Yes.
HIS HONOUR: And you get compensation. Why would that not be an adequate remedy for you? Why instead of that would you be seeking reinstatement? Do you understand?
MS WU: Because I want justice to be held. I want to assist in that regard, because APRA and ASIC are the regulators, MAS are also the regulators, right, and the imbalance of ‑ ‑ ‑
HIS HONOUR: But why won’t you get justice by having an order for compensation? Why do you need for justice, as you say, an order for reinstatement?
MS WU: Because I’m not the only one suffering from this
HIS HONOUR: All right.
MS WU: It’s a pandemic within the UOB globally that people are suffering from, you know, having to work long hours, excessive time and not getting compensated either, also, yes. That is one ‑ ‑ ‑
HIS HONOUR: Sorry, so is what you’re [saying] is you want to be reinstated so you can, what ‑ ‑ ‑
MS WU: I can help with ‑ ‑ ‑
HIS HONOUR: So you can advocate these issues within the company? Is that why you say you want to be reinstated?
MS WU: No. I – so that I can better escalate the matters to the regulator for the proper, you know, compliance of regulations by the respondent.
HIS HONOUR: Sorry, let me just be clear about that. Is the reason you say reinstatement ‑ ‑ ‑
MS WU: Yes.
HIS HONOUR: ‑ ‑ ‑ is necessary for you to achieve justice is that if you are reinstated, you will be able to pursue, as an employee of the respondent, matters that you say relate to unlawful conduct with the regulator. Is that what you’re saying?
MS WU: Yes.
HIS HONOUR: All right.
MS WU: Because there was so many, and they were hidden, and I haven’t – I wouldn’t unduly – I’m also doing this, can I say, within the realms of the law. APRA prudential standards and whatever law. So far I haven’t breached anything, even though the orders were illegitimate, I haven’t even, you know, spoke to anyone that I’m not allowed to for so long.
HIS HONOUR: All right.
MS WU: So in balance of convenience – balance of probability, whatever you call it, it is – there’s more chances that the respondents will be in breach, rather than me. Especially – this is especially relevant under the current, you know, environment where there’s a Royal Commission on Banking and there are still lingering actions and amendments to laws and other stuff that’s going on, and there’s way too much – too many breaches on too many fronts within this – the respondents. And my colleagues globally, they’re all suffering.
HIS HONOUR: All right. I understand that submission
Nowhere in this exchange, and on no other occasion during the hearing before me, did Ms Wu identify the work she would resume if UOB were to be ordered to reinstate her; or the managers and other employees with whom Ms Wu would be working, if reinstated; or whether, in undertaking any such work, it would be possible for Ms Wu to establish and maintain a proper working relationship between her and the managers and other employees with whom she would be working if reinstated and, if so, how such working relationship would be established and maintained. Ms Wu instead submitted that, if UOB were ordered to reinstate her employment, Ms Wu would use her reinstated position as an employee to escalate to regulators her allegations of serious wrongdoing by UOB – allegations UOB denies.
In these circumstances I cannot be satisfied there is a serious question to be tried about whether Ms Wu will be entitled to an order for reinstatement, assuming she were to establish at trial that UOB terminated her employment in contravention of s 340(1) of the FW Act; and that is because there is no evidence or allegations of fact on the basis of which, if accepted, it could reasonably be argued that on Ms Wu’s being reinstated there will be a sufficient level of cooperation between her and the managers and other employees of UOB with whom she would be working for a proper working relationship to resume. For this reason alone Ms Wu’s application for an interim injunction for reinstatement must fail.
BALANCE OF CONVENIENCE
I will now assume, contrary to what I have concluded, there is a serious question to be tried about whether Ms Wu will be entitled to an order for reinstatement, assuming she were to succeed in establishing that UOB terminated her employment in contravention of s 340(1) of the FW Act. I must first consider whether Ms Wu will suffer any detriment if an interim injunction for reinstatement is not granted but, at the final hearing, an order reinstating her employment will be made; and, if so, whether an award for compensation would not be an adequate remedy for the detriment she will suffer. Assuming Ms Wu will suffer a detriment, and compensation is not an adequate remedy, I must consider whether UOB will suffer any detriment if an interim injunction for reinstatement is granted but, at the final hearing, an order for reinstatement is not made, and, if so, whether UOB calling on the undertaking as to damages Ms Wu is willing to give to the Court would not be an adequate remedy for UOB’s detriment. If UOB will suffer a detriment for which compensation would not be an adequate remedy, I would have to compare the respective detriments of Ms Wu and UOB, and consider where the balance of convenience lies. For reasons that will appear, however, it will only be necessary for me to undertake the first of these steps.
Ms Wu has identified two detriments. The first is that Ms Wu says she has not told her father that her employment had been terminated, and Ms Wu’s father would be devastated if Ms Wu were to tell him she lost her job, which she will have to do soon. The second detriment is UOB has not given Ms Wu a proper reference, without which Ms Wu will never obtain another job. Ms Wu, however, has not made a submission that her work or career within UOB or elsewhere would be affected if an interim injunction for reinstatement were not granted, but an order reinstating her would be granted at trial.
Ms Wu has not supported the first of the two detriments she identified with any evidence; and I am not prepared to find the factual premises of this asserted detriment are correct. Even if the factual premises are correct, however, Ms Wu has not identified how such detriment is relevant to assessing the balance of convenience; and I am unable to identify any arguable relevance. The only possible basis on which Ms Wu’s father’s reaction to her employment having been terminated could be relevant is if Ms Wu’s father himself had made a claim for relief based on UOB’s alleged contravention of s 340(1) or any other provision of the FW Act; but Ms Wu’s father has not made any such claim. As for the second detriment, there is no basis for inferring that the granting of an interim injunction for reinstatement will or may result in UOB giving Ms Wu a proper or any other reference; or that the probability that UOB will give Ms Wu such reference would be higher than the probability of UOB giving such reference if an interim injunction for reinstatement is not granted, but an order for reinstatement is made at trial.
Not granting an interim injunction for reinstatement will therefore not result in Ms Wu suffering any detriment, assuming that at the final hearing Ms Wu will be granted an order for reinstatement. For that reason, Ms Wu’s application for an interim injunction for reinstatement must fail, even if she were able to demonstrate there is a serious question to be tried about whether she would be granted an order for reinstatement at trial.
Given this conclusion, it is not necessary to consider whether UOB will suffer a detriment if an interim injunction for reinstatement is granted but, at the final hearing, Ms Wu is not granted an order for reinstatement. If it were necessary to consider that question, however, I would conclude UOB would suffer a detriment. UOB would be compelled to maintain a relationship with an employee who has made, and who intends to use her position as a reinstated employee to continue to make, allegations of grave misconduct by UOB. It is likely that this would cause disruption within UOB; and it is unlikely that such detriment could be quantified. For that reason, UOB’s detriment will not be adequately compensated by UOB enforcing the undertaking as to damages Ms Wu is willing to give to the Court.
DISPOSITION
Ms Wu has not established any ground for the granting of an interim injunction for reinstatement. I therefore propose to order that her application for such injunction be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 1 April 2022
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