FEDERAL COURT OF AUSTRALIA Doyle v Australian Postal Corporation [1999] FCA 1364 INDUSTRIAL LAW – Interlocutory relief – applicant sought to restrain respondent giving effect to decision to transfer – serious issue to be tried – whether decision to transfer divorced from applicant's status as a person who proposed to become a union delegate – balance of convenience. Workplace Relations Act 1996 (Cth) s298K, s298T, 298U(e) Bullock v The Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464, applied JOAN DOYLE v AUSTRALIAN POSTAL CORPORATION V 452 OF 1999 MARSHALL J MELBOURNE 31 AUGUST 1999 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 452 OF 1999 BETWEEN: JOAN DOYLE Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDGE: MARSHALL J DATE OF ORDER: 31 AUGUST 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for interlocutory relief be dismissed. 2. The directions hearing be adjourned to 10.15 am on 6 September 1999. 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 V 452 OF 1999 BETWEEN: JOAN DOYLE Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDGE: MARSHALL J DATE: 31 AUGUST 1999 PLACE: MELBOURNE REASONS FOR INTERLOCUTORY JUDGMENT 1 On 6 August 1999 the applicant, Joan Doyle, made application pursuant to s298T of the Workplace Relations Act 1996 (Cth) ("the Act") in which she sought the imposition of a penalty upon the respondent, Australian Postal Corporation ("Australia Post") for breach of s298K of the Act. The application also sought orders under s298U(e) of the Act restraining Australian Postal Corporation ("Australia Post") from giving effect to certain matters regarding Ms Doyle's employment. 2 The application sought interlocutory relief against Australia Post from giving effect to its decision to transfer Ms Doyle to the Brighton Delivery Centre. The application for interlocutory relief was made returnable on 12 August 1999. On that day that application and the directions hearing was adjourned to 26 August 1999. On 26 and 27 August 1999 evidence was given regarding the claim for interlocutory relief and submissions made on the issue of balance of convenience. Written submissions were received on 31 August 1999 on the question of serious issue to be tried. 3 By the time the application for interlocutory relief was heard Australia Post had determined to transfer Ms Doyle to its South Melbourne Delivery Centre. The application for interlocutory relief was amended to seek to restrain Australia Post from giving effect to that later decision. Factual background 4 Ms Doyle is employed by Australia Post as a postal delivery officer. She has been employed by Australia Post since November 1985. From February 1996 until October 1998 Ms Doyle was located at the Fairfield Post Office. In October 1998 she was relocated to the Northcote Delivery Centre. 5 Ms Doyle is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union ("the CEPU"). She has been a member of the CEPU and predecessor organisations since late 1985. She has been active in the affairs of the CEPU over the length of her employment. She is currently the CEPU shop steward at the Northcote Delivery Centre. From August 1997 to August 1999 Ms Doyle held office as a member of the Branch Committee of Management of the Victorian Postal and Telecommunications branch of the Communications Division of the CEPU. She is the holder of a permit pursuant to reg 109B of the Workplace Relations Regulations allowing her right of entry to Australia Post's premises in accordance with Div 11A of Part IX of the Act. 6 Ms Doyle nominated for the position of Branch President in the recent elections held within the Victorian Postal and Telecommunications branch of the CEPU ("the Branch"). She was unsuccessful. However she was elected to the position of Alternate National Councillor. 7 There is a self-styled reform group within the Branch known as "Keep Australia Post Public" ("KAPP"). Ms Doyle is the convenor of KAPP. It is, in effect, the internal opposition to the incumbent leadership of the Branch. 8 On 9 April 1999 Ms Doyle was working at the Northcote Delivery Centre when an issue arose between Ms Doyle and the Delivery Manager of the Centre, Mr Michael Sinni, concerning the allocation of work to a particular employee. Consequently work stopped for 10 minutes until Ms Doyle was satisfied that progress had been made on the matters which she and Mr Sinni had been discussing. 9 As a result of Ms Doyle's actions in effecting a stoppage of work on 9 April 1999 Mr Sinni informed Ms Doyle that her actions warranted an inquiry in accordance with Australia Post's disciplinary procedures. Mr Sinni gave evidence that he was motivated to initiate the inquiry procedure because Ms Doyle: · refused to comply with his direction; · called an unauthorised stoppage of work; and · undermined a decision made by him. 10 Mr Sinni claimed that he did not commence the inquiry procedure because of Ms Doyle's role in union affairs. His evidence was that he was solely motivated by what he perceived to be a breach of discipline. 11 In support of her view that Mr Sinni had contrived to place her on an inquiry due to her union activities, Ms Doyle gave evidence that on 1 April 1999 she found a "with compliments" slip on Australia Post stationery which contained writing by Mr Sinni which included the words "Micke… [short for Michelle] – Joan Enquiry??" The reference to Michelle was said to be a reference to Ms Michelle Moulden, Mr Sinni's superior and the Area Manager Delivery North East for Australia Post. 12 Mr Sinni gave evidence that the notation was made on 12 April 1999. This evidence is consistent with other writing on the piece of paper which relates to events at the Centre on 12 April 1999. 13 In his affidavit of 23 August 1999 Mr Sinni said as follows: "I want to make it clear that at no time have I sought to victimise Ms Doyle. At the time of these incidents I had only been at Northcote for two to three weeks. At that time I had no knowledge of Ms Doyle's union membership or prior union activity." 14 When cross-examined by counsel for Ms Doyle, Mr Rozen, Mr Sinni admitted that the last sentence quoted above was incorrect. He said he was aware that Ms Doyle was in the Union and was purporting to act as shop steward. The Court also infers that Mr Sinni was aware that Ms Doyle was proposing to formally nominate for that position shortly after 9 April 1999. 15 An inquiry into Ms Doyle's conduct on 9 April 1999 was undertaken by Mr Stephen Grech, Manager Operations Process Improvement, Network Process and Technology Unit of Australia Post. That inquiry also dealt with an allegation that Ms Doyle had obstructed a fellow employee on 13 April 1999 from delivering mail via the use of a motorcycle. Ms Doyle was exonerated regarding the 13 April 1999 matter. 16 Mr Grech gave evidence in an affidavit sworn by him on 23 August 1999 that he found the allegation that Ms Doyle had engaged in unauthorised industrial action on 9 April 1999 to be made out. He said that: "In reaching this conclusion I acted independently. I did not seek the views of any other person nor did I receive unsolicited advice from any other person. The manner in which I conducted the inquiry, my findings as to the allegations made against Ms Doyle, and my recommendation that she be dismissed were not influenced in any way by Ms Doyle's union membership, position as a delegate or officer of the union." 17 Mr Grech was not cross-examined on that evidence. He gave further evidence that he recommended to Mr Steve Ousley, the State Delivery Manager, that Ms Doyle's employment be terminated. That recommendation was contained in a letter to Mr Ousley dated 1 June 1999. 18 Mr Ousley considered Mr Grech's report. He interviewed Ms Doyle and ultimately determined that the appropriate penalty was a transfer to the Brighton Delivery Centre in lieu of termination of her employment. Mr Ousley's decision to transfer Ms Doyle to Brighton was the subject of reconsideration by a Board of Reference. The Board hearing occurred on 18 August 1999. On 24 August 1999 the Board found that the decision to transfer Ms Doyle was "fair and reasonable". It concluded as follows: "On the assumption that Ms Doyle is transferred to a location closer to her home than Brighton DC, the appeal is dismissed." Serious issue to be tried 19 On the current state of the evidence before the Court, especially having regard to the reverse onus of proof provided by s298V of the Act, the Court is satisfied that a serious issue to be tried has been raised. At this stage the Court is unable to confidently conclude that Ms Doyle's status as a person who proposed to become a delegate of CEPU and who after 20 April 1999 had become such a delegate was totally divorced from the decision of Australia Post to transfer her in her employment. 20 It is the Court's view however, that the evidence in its current form reveals what was described by Woodward J in Bullock v The Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464 at 472 as a "more doubtful claim (which nevertheless raises a serious issue to be tried) [and which], may still attract interlocutory relief if there is a marked balance of convenience in favour of it." This is especially so having regard to the unchallenged evidence of Mr Grech referred to above and to the independent finding of the Board of Reference on the appropriateness of a transfer of Ms Doyle in her employment with regard to the conduct alleged against her. 21 The Court is inclined to the view that whilst a serious issue to be tried has been established on the current state of the evidence its strength is mediocre at best. The Court puts aside from consideration for current purposes any question of resolving credibility issues as between Mr Sinni and Ms Doyle concerning the "with compliments" slip discussed earlier in these reasons. Balance of convenience 22 The Court therefore does not consider there to be a marked balance of convenience in favour of the grant of interlocutory relief. The only real disadvantage which Ms Doyle will suffer as a result of her transfer to South Melbourne may be the requirement to arise approximately one hour earlier than she has been accustomed to arising to commence duties in Northcote. Australia Post has undertaken to ensure that Ms Doyle does not suffer a diminution in overtime earnings as a result of her transfer. The Court accepts that undertaking and in the absence of it may have reconsidered its attitude to the grant of interlocutory relief restraining the transfer. 23 Mr Rozen submitted that the Court should also take into account the detriment to Ms Doyle's fellow employees at Northcote should she be transferred. I accept that such detriment is a relevant factor going to balance of convenience. However such evidence was limited to two fellow employees and must be weighed in the balance against the importance of Australia Post maintaining the integrity of its disciplinary process which includes access to an independent Board of Reference. 24 It was also submitted that should Ms Doyle succeed at trial and as a result be transferred back to Northcote, she may find that all deliveries have been motorised and be unable to work there as she does not hold a motorcycle licence. There was no evidence before me that such a change was imminent. However, it is also possible that such a change may occur in due course if Ms Doyle was returned to Northcote necessitating her transfer for reasons divorced from any consideration in Part XA of the Act. Order 25 In the circumstances it is appropriate to order that the application for interlocutory relief be dismissed and that the directions hearing be adjourned to the next directions list before me at 10.15 am on 6 September 1999. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 31 August 1999 Counsel for the Applicant: Mr P Rozen Solicitor for the Applicant: Maurice Blackman Cashman Counsel for the Respondent: Mr M McDonald Solicitor for the Respondent: Minter Ellison Date of Hearing: 27 August 1999 Completion of Written Submissions: 31 August 1999 Date of Judgment: 31 August 1999 (ex tempore as revised from the transcript)