Zhang v University of Canberra

[2015] FCA 21

FEDERAL COURT OF AUSTRALIA

Zhang v University of Canberra [2015] FCA 21

Citation:

Zhang v University of Canberra [2015] FCA 21

Parties:

FELICIA ZHANG v UNIVERSITY OF CANBERRA

File number(s):

NSD 57 of 2015

Judge(s):

GREENWOOD J

Date of judgment:

23 January 2015

Catchwords:

PRACTICE AND PROCEDURE – consideration of an application for an interim injunction

INDUSTRIAL LAW – consideration of an application for an interim injunction on the contended footing of an arguable contravention of s 50 of the Fair Work Act 2009 (Cth)

Legislation:

Fair Work Act 2009 (Cth), s 50

Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – cited
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 – cited

Date of hearing:

23 January 2015

Date of last submissions:

23 January 2015

Place:

Canberra via video‑link to Brisbane

Division:

FAIR WORK DIVISION

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

Ms H Robinson

Solicitor for the Applicant:

NicholasDibb Solicitors

Counsel for the Respondent:

Ms J Wyborn

Solicitor for the Respondent:

Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 57 of 2015

BETWEEN:	FELICIA ZHANG Applicant
AND:	UNIVERSITY OF CANBERRA Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	23 JANUARY 2015
WHERE MADE:	CANBERRA VIA VIDEO‑LINK TO BRISBANE

UPON the applicant giving the usual undertaking as to damages,

THE COURT ORDERS THAT:

1.The respondent is restrained from terminating the applicant’s employment at any time before 4.00pm AEDT on 29 January 2015.

2.The matter be listed for interlocutory hearing on either 28 or 29 January 2015 to determine whether the restraint imposed by Order 1 should be extended for a further period.

3.Costs reserved. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 57 of 2015

BETWEEN:	FELICIA ZHANG Applicant
AND:	UNIVERSITY OF CANBERRA Respondent

JUDGE:	GREENWOOD J
DATE:	23 JANUARY 2015
PLACE:	CANBERRA VIA VIDEO‑LINK TO BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for interlocutory relief which is brought to the Court in circumstances of urgency.  The circumstances of urgency are said to arise out of the fact that on 19 January 2015 the respondent, which is the University of Canberra, wrote a letter to the applicant, Ms Felicia Zhang, in which it was suggested that a preliminary decision, at least, had been made that Ms Zhang’s employment ought to be terminated on the footing of contraventions of the employment agreement, on the footing it seems, that Ms Zhang had engaged in serious misconduct in contravention of the enterprise agreement. 

2. The matter of the potential termination of Ms Zhang’s employment was referred to a committee or review panel for consideration.  The function of the review panel or committee, apparently, is to make a recommendation to the decision‑maker about whether the employee has engaged in serious misconduct.  A recommendation was made and it was, apparently, taken into account.  The recommendation of the review panel or committee was that no serious misconduct had occurred although there was a finding, adverse to Ms Zhang.  However, apparently on the evidence, the finding did not go so far as to suggest serious misconduct in contravention of the enterprise agreement.  

3. Nevertheless, the decision‑maker made it plain to Ms Zhang that submissions in relation to the question of her conduct said to give rise to a basis for termination would be received and those submissions would be considered.  A letter was sent to the decision‑maker who I understand is Professor Klomp on 22 January 2015, consequent upon a relatively short oral presentation by or on behalf of Ms Zhang.  And then, on 23 January 2015, an email was sent by Professor Klomp advising that a final decision on the question would be made at 4.00pm today. 

4. The applicant contends that she has not engaged in serious misconduct which would justify termination. That question then is the matter in issue. If the applicant is shown to be correct on the underlying facts about the question of serious misconduct then it seems that no basis under the enterprise agreement would arise for termination and there would be at least an arguable question of a contravention of s 50 of the Fair Work Act 2009 (Cth).

5. The application, for present purposes, is simply one designed to preserve the status quo pending the determination of the questions in issue in the proceeding.  I propose to make an order restraining the respondent from terminating the employment of Ms Zhang at any time prior to 4.00pm on 29 January 2015.  The application will then be relisted before the duty judge on either 28 January or 29 January 2015 for further consideration of the question of whether this urgent injunction ought to be extended pending the trial of an action to establish the merits of the underlying position.  In deciding to make the present order on the short summary of the facts that I have just described, I have had regard to and have applied the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] to [72].

6. I also apply the observations of the Full Court of this Court on the question of interlocutory injunctions and balance of convenience (Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238) where their Honours set out in a joint judgment the correct approach to be adopted.

7. The order is made upon the usual undertaking as to damages given by the applicant.  The question will come before the Court next week for determination of whether an interlocutory injunction should go pending trial. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate: 

Dated:        23 January 2015