FEDERAL COURT OF AUSTRALIA Douglas v St John of God Health Care Inc [2000] FCA 535 BRETT DOUGLAS & HEALTH SERVICES UNION OF AUSTRALIA v SAINT JOHN OF GOD HEALTH CARE INCORPORATED V 229 of 2000 JUDGE: FINKELSTEIN J DATE: 19 APRIL 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 229 of 2000 BETWEEN: BRETT DOUGLAS and Anor Applicants AND: SAINT JOHN OF GOD HEALTH CARE INCORPORATED Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 19 APRIL 2000 WHERE MADE: MELBOURNE UPON the second applicant by its counsel undertaking: (a) to 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; and (b) to pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT: 1. That until 4.15 pm on 28 April 2000 or further order the respondent be and it hereby is restrained from appointing anyone to the position of Medical Scientist Grade 3 (Histology/Cytology) being the position for which interviews are to be conducted on 20 April 2000. 2. Any further affidavits upon which the applicants intend to rely be filed and served by 4.30 pm on 20 April 2000. 3. Any affidavits upon which the respondent intends to rely be filed and served by 12.00 pm on 27 April 2000. 4. The application for interim relief be adjourned to 10.15 am on 28 April 2000. 5. 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 V 229 of 2000 BETWEEN: BRETT DOUGLAS and Anor Applicants AND: SAINT JOHN OF GOD HEALTH CARE INCORPORATED Respondent JUDGE: FINKELSTEIN J DATE: 19 APRIL 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Brett Douglas, the first applicant, is employed as a medical scientist by Saint John of God Health Care Incorporated, the respondent. The precise position that he holds is a "Medical Scientist Grade 3". Mr Douglas has been employed by St John for a number of years. During that time he was involved in industrial action, which amongst other aims sought to further the working conditions of the employees of St John. His involvement caused hostility with the management of St John. 2 Recently St John, perhaps in reaction to a decline in the profitability of its operations, has taken steps to restructure its organisation. One step in that restructure concerns the position presently held by Mr Douglas. Late last year St John appointed a second person to the position of "Medical Scientist Grade 3". Thus it now employs two people in that position. Under the proposed restructure there will be only one medical scientist grade 3. St John proposes to decide tomorrow whom it will appoint to that position. So there is a risk that Mr Douglas will lose his job. 3 Indeed Mr Douglas believes that St John will not appoint him to the position. He says that St John will not offer him the position because of his involvement in past industrial disputes. He says, therefore, that St John will either dismiss him from his current position because it will become redundant or it will alter his employment to his detriment by offering to redeploy him. 4 Mr Douglas brings this action under the Workplace Relations Act 1996 (Cth) seeking the imposition of penalties under s 298U and an injunction restraining St John from removing him from his present position. Mr Douglas alleges St John is threatening to dismiss him or alter his position to his prejudice for a prohibited reason. Section 298K(1) of the Act provides that: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason ... dismiss an employee ... [or] alter the position of an employee to the employee's prejudice." 5 Section 298L sets out what are prohibited reasons. Those relied upon by Mr Douglas are: "(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or … (g) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; …" 6 At the present time Mr Douglas asks for interim relief. He says his case is urgent, because St John proposes interviewing all applications for the position tomorrow and will announce the result at the end of the day. 7 The application and the supporting material were served on St John early this afternoon and of necessity it has had no opportunity to properly deal with the application. That does put St John at a serious disadvantage in a proceeding of this type. I see that s 298V has the practical effect that if an application is made to the court in which it is alleged that conduct has been engaged in in contravention of s 298K(1) it is to be presumed that the respondent is acting for a prohibited reason until it proves otherwise. Section 298V applies to an interim application: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501. 8 There was some discussion whether Mr Douglas' claim was so "shadowy" that it should not be treated seriously, perhaps even struck out as an abuse, so the presumption created by s 298V would not apply. I note, however, that in his affidavit Mr Douglas says that he has been advised by other members of staff that one reason why the proposed restructure is to take place is so that St John can "get rid of staff who had participated in industrial action in 1999". 9 While there is not much evidence to support the case for interim relief, it is sufficient, I think, to rebut any suggestion that Mr Douglas does not believe in his claim and is merely pursuing it for some improper or ulterior purpose. A good deal of evidence that I have been taken to by Mr Douglas' counsel suggests that the purpose of the proposed restructure is to overcome the financial difficulties faced by St John rather than as a means of getting rid of unwelcome staff. Nevertheless it is not possible for me to conclude, at this early stage that Mr Douglas's claim is "shadowy". 10 This does leave St John in an invidious position, because by the application of s 298V it is to be presumed that Mr Douglas has made out a case on the merits. This is not so on the question whether any order should be made on this interim application. That is at large, and the usual discretionary considerations must be taken into account. 11 In my opinion it is appropriate that St John be restrained from making any decision on whom it should appoint to the position "Medical Scientist Grade 3" for a week or so and then to consider whether such an order should be continued pending trial. In the meantime St John can file such material as it thinks appropriate in opposition to the application. In all of the circumstances a restraining order for a short period will cause no harm to St John and will adequately protect Mr Douglas' position. I will not, however, restrain St John from proceeding with the interviews that have been set down for tomorrow. It will be necessary to give directions for the filing of affidavits so that the interlocutory hearing can take place next week. 12 The orders that I will make, upon the usual undertaking in damages, are as follows: 1. That until 4.15 pm on 28 April 2000 the respondent will be restrained from appointing anyone to the Medical Scientist Grade 3 (Histology/Cytology) position. 2. Any further affidavits upon which the applicants intend to rely be filed and served by 4.30 pm on 20 April 2000. 3. Any affidavits upon which the respondent intends to rely be filed and served by 12.00 pm on 27 April 2000. 4. The application for interim relief be adjourned to 10.15 am on 28 April 2000. 5. Costs be reserved. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 19 April 2000 Counsel for the Applicants: Mr E White Solicitor for the Applicants: Ryan Carlisle Thomas Counsel for the Respondent: Mr A McNab Solicitor for the Respondent: Clayton Utz Date of Hearing: 19 April 2000 Date of Judgment: 19 April 2000