Haritou v Kyriacou [2001] FCA 959

FEDERAL COURT OF AUSTRALIA

Haritou v Kyriacou [2001] FCA 959

INDUSTRIAL LAW – application for interim injunction – internal Union dispute – alleged intimidatory language and exclusion from Union office Workplace Relations Act 1996 (Cth) s 209(4) MICHAEL HARITOU v LOU KYRIACOU AND OTHERS V 260 OF 2001 HEEREY J 5 JULY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 260 OF 2001

BETWEEN: MICHAEL HARITOU

APPLICANT

AND: LOU KYRIACOU AND OTHERS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 5 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The motion is dismissed. 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 260 OF 2001

BETWEEN: MICHAEL HARITOU

APPLICANT

AND: LOU KYRIACOU AND OTHERS

RESPONDENT

JUDGE: HEEREY J

DATE: 5 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks an interim order s 209(4) of the Workplace Relations Act 1996 (Cth) by way of notice of motion which was filed on 21 June 2001. Before going to the terms of the notice of motion I will say a little about the substantive proceeding. 2 It was commenced by a rule nisi granted by Weinberg J on 12 April 2001. The rule ordered that the respondents show cause why orders should not be made that they perform and observe the rules of the Construction, Forestry, Mining and Energy Union (the Union) and the rules of the FFTS Union Division and Union Divisional branches by paying the applicant his salary and entitlements pursuant to the terms and conditions of his employment in the office of branch secretary of the FFTS, including the following: (a) salary, (b) sick leave, (c) mobile phone, and (d) car; secondly, that the respondents perform and observe the rules of the Union and the Division by allowing the applicant access to the Division's branch premises at 130 Erroll Street, North Melbourne, and the Division's records held by the Division's auditors; and, thirdly, that the respondents perform and observe the rules of the Union and Division by refraining to do any act calculated to harass the applicant in the conduct of his office of Branch Secretary. 3 The background to this matter is that there is a power struggle within the Union. The FFTS Division is a numerically small part of the Union but in terms of the balance of power quite important. There appears to be a struggle within the FFTS Division and certain personal animosities. Prior to the commencement of this proceeding the Union or the respondents had brought proceedings in this Court claiming the refund of moneys allegedly wrongly taken by the applicant by way of unjustified expenses, payment of parking fines and some other matters. 4 The notice of motion presently before the Court is in the following terms: "1. That the respondents and each of them, Leo Skourdoumbis, Joseph Patti and Frank Vari perform and observe the rules of the Construction Forestry Mining and Engineering Union and of the FFTS Division (the organisation) by refraining from doing any act or adopting any behaviour designed or calculated to harass, intimidate or endanger the applicant including: (a) That they refrain from speaking to the applicant in an abusive fashion or gesturing to him in an abusive fashion; (b) That they refrain from obstructing the applicant in his free movement in the offices of the organisation or branch in Victoria and allow unimpeded access thereto; (c) That they refrain from approaching the applicant except to the extent necessary and appropriate to carry out their duties; (d) That they refrain from approaching the applicant outside work hours and refrain from contacting him whether by telephone or otherwise at his home except where the performance of work necessitates such contact; and (e) That they refrain from interfering with, removing or in any other way damaging any property to which the Applicant is entitled to possession. 2. That the respondents and each of them, Leo Skourdoumbis, Joseph Patti and Frank Vari perform and observe the Rules of the Construction Forestry Mining and Engineering Union and of the FFTS Division (the organisation) by issuing verbal and written instructions to the officers, employees and members of the Branch to the following effect that they refrain from doing any act or adopting any behaviour designed or calculated to harass, intimidate or endanger the applicant including: (a) That they refrain from speaking to the applicant in an abusive fashion or gesturing to him in an abusive fashion; (b) That they refrain from obstructing the applicant in his free movement in the offices of the organisation in Victoria and allow unimpeded access thereto; (c) That they refrain from approaching the applicant except to the extent necessary and appropriate to carry out their duties; (d) That they refrain from approaching the applicant outside work hours and refrain from contacting him whether by telephone or otherwise at his home except where the performance of work necessitates such contact; (e) That they refrain from interfering with, removing or in any other way damaging any property to which the Applicant is entitled to possession. 3. That the respondents and each of them perform and observe the rules of the organisation and branch and take all steps necessary to authorise and/or to obtain authorisation for the payment of unpaid salary to the applicant for the period 2 February 2001 to the date of this order and to effect such payment. 4. That the respondents and each of them perform and observe the rules of the organisation and branch and take all steps necessary to authorise and/or to obtain authorisation for the continued payment of salary to the applicant for the period from the date of this order to the date of the hearing and determination of the matters the subject of the Rule to Show Cause and to effect such payment. 5. That the respondents and each of them take all steps necessary to authorise and/or to obtain authorisation for: (a) the reinstatement to the applicant of the use of the motor vehicle previously allocated to his use by the organisation and/or the branch or a substitute thereto. (b) The reinstatement to the applicant of the use of the mobile phone previously allocated to his use by the organisation and/or branch or a substitute thereto. 6. That the time for service of this motion be abridged. 7. Such further or other orders as the Court deems appropriate." 5 The evidence in support of the application including the following. There was hearsay evidence that the applicant was approached in about October or November by an employer, a Mr Les Ford, who said to the applicant that he had been requested to ask him, "what it would take for Michael Haritou to leave his position". The applicant asked who wanted to know and Mr Ford refused to answer him and told the applicant he should "think about his family and their needs" and that there were people within the organisation who were concerned for Michael Haritou and his family. There is no evidence as to who Mr Ford is, still less any evidence establishing any link between him and the respondents. 6 On 2 February 2001 it is said the applicant had a conversation with Frank Vari in which Vari told him that, as a result of a "secret" Branch Committee of Management meeting held on or about 31 January 2001 the committee would like the applicant to leave the committee. However, Mr Vari said that the committee, "didn't want to pursue either Lou Kyriacou or Michael Haritou legally". Vari told the applicant, however, that they wanted to pursue the president, Mr Michael Mitten. 7 In about late February or early March 2001 Mr Rick Fowler, the Executive Officer of the national office of the Union and a member of the divisional council, asked the applicant what it would take for "the proceeding" to stop. I take this to be a reference to the proceeding already mentioned which the Union had taken against the applicant. The applicant told Mr Fowler that he did not initiate the proceedings and it was not up to him to stop the proceedings. 8 In about March 2001 the National Secretary of the Union, John Maitland, approached Vice-President Stephen Rowe, Secretary of the South Australian FFTS branch. Mr Maitland told Mr Rowe that, if Leo Skourdoumbis and Frank Vari were elected Divisional Secretary and Assistant Secretary of the FFTS Union Division, the proceedings against the applicant would stop. Mr Mitten told the applicant that Skourdoumbis, Frank Vari and Joe Patti had quite repeatedly individually approached him and said they did not want to pursue the proceedings against the applicant and wanted to sign a letter to bring the proceedings against Mr Mitten to an end. 9 On about 30 March 2001 Mr David Kirner, the assistant secretary of the South Australian branch of the FFTS Union Division, called the applicant and told him that the proceedings should be resolved by a round table discussion between parties and the proceedings should not continue. Mr Kirner was under the impression that the applicant had entered into discussion with Mr Skourdoumbis and his supporters to try and resolve the proceedings. The applicant told Mr Kirner that his car had been stolen, he had been continuously intimidated and that he had not initiated the proceedings; it was not open to him to bring the proceedings to an end. 10 On "various and separate occasions" Mr Maitland or Mr Fowler spoke to a number of other members of the Union and: "advised them that Michael Haritou's resignation was imminent and that it was only a matter of time until the letter would be received from Michael Mitten." 11 There was further evidence that on 10 April Mr Kirner called the applicant and spoke to him about a conversation he had with Mr Skourdoumbis in which the latter asked Mr Kirner who he would be voting for at the upcoming divisional conference scheduled for Monday 23 April. When Mr Kirner advised he would voting for the applicant, Mr Skourdoumbis said words to the effect, "How could he let him run the divisional office given what he's done here in Victoria?" Mr Skourdoumbis allegedly repeatedly told Mr Kirner to make sure he didn't "go on the wrong side". He said that Mr Skourdoumbis said words to the effect that "doing the wrong thing is going to count", "people will get their comeuppance" and threatened to obtain an injunction to stop the Divisional conference. 12 On 18 and 19 June the applicant's solicitor, Ms Katherine Callil Roberts, attended the offices of the Union to inspect the Branch's financial records. A number of Union members were present, including some but not all of the respondents. Various people, including a Mr Landolt, began questioning the applicant regarding what documents he wished to inspect. Ms Callil Roberts said that they were not there for the applicant to be cross‑examined. During the course of these discussions an unidentified person said to Michael: "You're not here for money, are you? It's not like you didn't get enough. I'm disgusted with you, Michael." 13 He then walked out. On occasions when the applicant and his solicitor were outside the room, a number of men made comments to the applicant. Mr David O'Brien said to the applicant, "You're looking shithouse, Michael. How does it feel to be on your own?" Mr Darren Hanisch said, "Have you got any beanies in that bag? Good riddance to you," and Mr Matt Norrey said, "Have you got any jumpers in that bag?" All these men were apparently Union officials. Later Mr Hanisch came into the boardroom when the applicant was there and said, "I thought you would have gone by now", and when the applicant and his solicitor were leaving the building Mr O'Brien said to the applicant, "Good riddance". 14 On the occasion of the visit on 19 June the applicant's car was damaged. This was his own car. He had previously been using a Union car but it had been stolen. He had driven his car to the office and parked it some distance away. On his return he discovered it had been extensively scratched down the left hand side. In addition, the two left hand tyres had been flattened and slashed. 15 To go back a little, it appears that the applicant has not attended at the Union offices since November. There is some dispute as to at what time he was entitled to annual leave. Anyway, as I understand it, no such entitlement would have been available from February onwards, and the applicant claims he has been unable to attend work because of a stress and anxiety condition caused or contributed to by the conduct of the respondents. There has been, as has been noted, as part of the substantive proceeding a claim for sick pay. This is currently being dealt with by the Union, which rejected a general practitioner's certificate submitted by the applicant. At the Union's request the applicant has been examined by a specialist, whose report is not yet available. 16 On 4 July Mr Skourdoumbis sent to all officials and staff of the division an inter-office memorandum in these terms: "I write to you in relation to Michael Haritou. Michael attended the Branch on 18 and 19 June 2001 to inspect documents as part of a court mediation process. Following the inspection, Michael has complained that he was subjected to inappropriate treatment by a number of employees of the Branch. Additionally his solicitor has asserted that Michael has informed her that, while the inspection occurred, his motor vehicle was vandalised. The matter has been reported to the police. I have considered these allegations and spoken to a number of individuals named by Haritou about these allegations. They have told me that Haritou behaved in a provocative manner during the course of the inspection. Whilst I believe Michael's behaviour was provocative and somewhat erratic when he attended the offices, I am concerned to ensure that legal proceedings are not prolonged and that the Union can get on and function effectively for its members. I therefore direct all officials and employees not to behave inappropriately or aggressively towards Michael Haritou. Further, if Michael is provocative or himself behaves inappropriately to staff or officials, I direct that all staff and officials involved immediately report that matter to me rather than respond. I further direct that if any official has any information in relation to the alleged vandalism to Michael's car, they are to provide me with it forthwith. Allegations of criminal conduct are taken most seriously by me. Sgd Leo Skourdoumbis Divisional Assistant Branch Secretary CFMEU – FFTS Union Division" 17 Turning to the relief sought in the notice of motion, as to par 1(a), there is no material directly involving any of the respondents in the allegedly abusive language. There is some evidence denying what was said and also evidence on behalf of the respondents attributing to the applicant abusive and obscene language, which the applicant in turn denies. But, looking at face value at the version tended by the applicant, it does not seem to me to warrant any interference by the Court. Given the tension within this particular Union and a certain amount of personal animosity, one has to be realistic and expect that people will from time to time use language which might not be acceptable in polite circles. But I do not think that even on the applicant's version the language used goes beyond a reasonably robust level of debate. 18 As to par 2(1)(b), I am not satisfied that there is an arguable case that there has been restriction of the applicant from attending the offices. Indeed, on the contrary, he has been directed to return to work. Counsel for the respondents has stated in open court that the respondents have no intention of denying him access to the premises, and such a position was stated on behalf of the Union as long ago as 15 February 2001. I think as to pars 1(c), (d) and (e) there is no basis for any interlocutory relief. In particular there is no evidence even sufficient to raise a triable issue that any of the respondents were responsible for the damage to the applicant's vehicle, or indeed that any member of the Union was. 19 As to par 2, I think the inter-office memorandum is sufficient. It may be that it is not an unequivocal direction to Union members, but I think realistically in this setting the Union could not be expected to send a circular completely accepting everything that the applicant alleged. The circular seems to me a commonsense effort by the Union to keep matters under control until the disputes can be resolved in the court or by agreement. 20 As to par 3, the claim for salary is part of the substantive claim in this matter and to grant it by way of interlocutory relief would, I think, not be appropriate, particularly, as counsel for the respondents point out, as there is no material as to the terms and conditions on which the applicant was employed. I think par 4 is really to the same effect. Paragraph 5 refers to the motor car and the mobile phone. These are tools of the trade, as it were, and I was told by counsel that if the applicant resumed his duties they would be made available. So for those reasons I dismiss the motion.