FEDERAL COURT OF AUSTRALIA Murray v The Peninsula School [2015] FCA 447 Citation: Murray v The Peninsula School [2015] FCA 447 Parties: WAYNE MURRAY v THE PENINSULA SCHOOL and STUART JOHNSTON File number: VID 242 of 2015 Judge: MURPHY J Date of judgment: 12 May 2015 Catchwords: INDUSTRIAL LAW – injunctions – interlocutory injunctions – interim injunctions – preserving the subject matter of the litigation Legislation: Fair Work Act 2009 (Cth) Occupational Health and Safety Act 2004 (Vic) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218 Date of hearing: 8 May 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr N Harrington Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: The Respondents did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 242 of 2015 BETWEEN: WAYNE MURRAY Applicant AND: THE PENINSULA SCHOOL First Respondent STUART JOHNSTON Second Respondent JUDGE: MURPHY J DATE OF ORDER: 8 MAY 2015 WHERE MADE: MELBOURNE UPON THE UNDERTAKING of the Independent Education Union by its counsel: (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. Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from dismissing the Applicant from his employment with the First Respondent. 2. Until further order of the Court, the First Respondent be restrained, by itself, its servants or agents, from subjecting the Applicant to the disciplinary process outlined in the First Respondent's letters dated 6 and 7 May 2015. AND THE COURT NOTES: The solicitors for the Applicant are directed to urgently serve this order upon the Respondents, and to confer with the solicitors for the Respondents in an endeavour to agree as to the return date for hearing of the Applicant's claim for interlocutory relief. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 242 of 2015 BETWEEN: WAYNE MURRAY Applicant AND: THE PENINSULA SCHOOL First Respondent STUART JOHNSTON Second Respondent JUDGE: MURPHY J DATE: 12 MAY 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT introduction 1 This proceeding was commenced by way of Originating Application on 8 May 2015 and it came before the Court in an urgent application for interlocutory relief the same day. The applicant, Wayne Murray, is employed as an Audio Visual Co-ordinator by the first respondent, The Peninsula School, a secondary school located on the Mornington Peninsula in Victoria ("the school"). He is a member of the Independent Education Union of Australia ("IEU") and is also a committee member of the Staff Association of the school. The second respondent, Stuart Johnston, is the principal of the school. 2 In the Originating Application Mr Murray alleges that the school took adverse action against him, by standing him down from his employment, subjecting him to a disciplinary process and threatening to dismiss him because of, or for reasons which include, that: (a) he exercised a workplace right to make a complaint in relation to his employment and/or for the benefit of other employees of the school, members of the IEU and/or members of the Staff Association, within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) ("the Act"); (b) as a member of the IEU, a member of the Staff Association (both of which are industrial associations within the meaning of s 12 of the Act), and as an officer of the Staff Association, he had engaged or proposed to engage in industrial activity within the meaning of subs 347(a), (b)(ii), (b)(iii) and (b)(v) of the Act. He alleges that the school contravened ss 340 and 346 of the Act, and that Mr Johnston was involved in the contravention within the meaning of s 550. 3 The application is supported by an affidavit affirmed on 8 May 2015 by the solicitor for the applicant, Consuela Catalini, on the basis of information and belief. 4 It appears from submissions that the school was determined to require Mr Murray to respond to allegations of misconduct by 2.00 pm on 8 May, after which time the school said that it intended to make a decision regarding Mr Murray's ongoing employment. Mr Murray requested through his solicitors that the school delay its decision in this regard by seven days, but the school refused. 5 Because of the urgency the application was not properly served. The application together with advice of the urgent hearing was emailed to the respondents only a short time before the hearing. Mr Johnston replied by email acknowledging receipt of the application and advising that he had forwarded it to the respondents' solicitors. 6 For the reasons I explain I have granted interim relief to Mr Murray pending hearing and determination of the application for interlocutory relief. Essentially I did this in order to preserve the subject matter of the litigation until both parties may be heard on the application. The facts 7 The respondents have not had the opportunity to put any evidence before the Court. In setting out the facts I do little more than recount the applicant's version of events, and in doing so I should not be taken to accept this account. 8 Ms Catalini's affidavit was incomplete, having been prepared in haste for an urgent hearing. Because of the urgency of the application, and the interim nature of the orders under consideration, I permitted counsel to make some submissions on the facts which went further than the affidavit evidence. 9 Broadly, Ms Catalini deposed and counsel submitted that Mr Murray was summoned to attend a meeting with a Deputy Principal of the school on 1 May 2015 and was then suspended from employment on full pay. He was escorted off the premises by a security guard and was told that he was the subject of a disciplinary process. 10 On 6 May 2015, accompanied by an IEU official, Mr Murray attended a meeting with Mr Johnston at the school. Mr Johnston handed over a bundle of copy emails of various dates which, on their face, were from Mr Murray to undisclosed recipients, together with a list of names of teaching staff at the school and dates of staff departures ("the list of names and dates"). The bundle of emails and the list of names and dates are attached to Ms Catalini's affidavit. Mr Johnston told Mr Murray that, in the school's preliminary view, he had engaged in serious misconduct but before making a decision as to his ongoing employment Mr Johnson requested that Mr Murray explain the content of the emails, their provenance and intent. 11 Mr Johnson also gave Mr Murray a letter from the school dated 6 May 2015 which stated: Dear Wayne YOUR CONDUCT Thank you for meeting with us today. The purpose of this meeting is to discuss some serious issues which have recently come to our attention regarding your recent conduct. At this stage, our preliminary view is that you have engaged in serious misconduct in breach of your employment contract which could warrant the immediate termination of your employment. However, before we make a decision regarding your ongoing employment with The Peninsula School, we would like to provide you with an opportunity to respond to the matters set out below. Background It has come to our attention that: • over the course of the past seven months, you have sent a number of emails to a list of undisclosed recipients which contain content that incites others to engage in a coordinated campaign against both The Peninsula School and me; • on 26 March 2015 at 3:58 pm, you sent confidential information in the form of a PDF document named "260132015155113-00001.pdf" which included names and dates of staff departures from 2005 to present, to your personal Gmail account (wmurray206@gmail.com); • you have incited other employees of The Peninsula School to behave in contravention of our Core Values, Codes of Conduct and The Peninsula School Way via emails between you and a list of undisclosed recipients (who, we reasonably believe, include current and past employees, in addition to other external parties) between 7 October 2014 and 23 April 2015; • you have incited others to release information to a media journalist in contravention of our Core Values, Code of Conduct and The Peninsula School Way via emails between you and a list of undisclosed recipients (who, we reasonably believe, include current and past employees, in addition to other external parties) between 7 October 2014 and 23 April 2015. Our concerns The conduct outlined above is very concerning and completely unacceptable. We are of the view that you have engaged in serious misconduct in breach of your employment contract because you have: 1. wilfully and deliberately engaged in conduct which deeply offends our values and breaches your duties of confidentiality and good faith to act in the best interests of The Peninsula School which is inconsistent with the continuation of your employment; and 2. caused a serious and imminent risk to the reputation and viability of The Peninsula School. Next steps Before we make a final decision with respect to your ongoing employment, we now invite you to provide us with an explanation for your conduct and a response to our concerns. Yours faithfully Stuart Johnston Principal 12 Mr Murray declined to provide an explanation to Mr Johnston at that time, having earlier been advised that he would be given time to consider the allegations made against him. Mr Johnston said the matters under discussion warranted immediate dismissal but that he would give Mr Murray until 2.00 pm on Friday, 8 May 2015 to provide his response. Mr Murray said that a decision would be made, at that time, regarding Mr Murray's ongoing employment at the school. 13 In broad terms Mr Murray claims that he was bullied by Mr Johnston and that, since at least early 2014, in his role as an officer of the Staff Association he has been acting as an advocate on behalf of a small group of teaching staff at the school in relation to claims of bullying and harassment by Mr Johnston. The affidavit did not descend to this detail but it seems likely from the contents of the emails that they were sent by Mr Murray to, at least, disaffected teaching staff at the school and their supporters. They appear to disclose a campaign of advocacy by Mr Murray on behalf of the disaffected teaching staff directed at persuading the Board of Directors of the school that teaching staff have been bullied, victimised and harassed by Mr Johnston over previous years, and that a number of teachers had been constructively dismissed as a result. The campaign included Mr Murray asking whether any of the disaffected staff would be prepared to speak to a journalist about their concerns. 14 On 7 May 2015 the school wrote to Mr Murray and relevantly said: … 4. although we are not obligated to do so, as a gesture of fairness, we decided to grant you until Friday 8 May at 2 pm to provide us with your written or verbal response; and 5. we will make a final decision based on all of the information available to us, including your response (if any), after this time. 15 When the respondents refused to extend the time allowed for a response by seven days Mr Murray's solicitors made the urgent application now before the Court. The principles relevant to an interlocutory injunction 16 The principles relevant to the grant of an interlocutory injunction are well established. They were summarised by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218 ("Jones") at [5] as follows: As Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19], in all applications for an interlocutory injunction the Court will ask whether the plaintiff has shown that: • there is a serious question to be tried as to the plaintiff's entitlement to relief; and • the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and • the balance of convenience favours the granting of an interlocutory injunction. As their Honours observed further, these are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed (at [19]). 17 In order to succeed at the hearing of his application for interlocutory relief Mr Murray must establish a prima facie case with a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo. The strength of the likelihood depends on the nature of the rights asserted and the practical consequences likely to flow from the orders sought (O'Neill at [65]). Discussion 18 I have not decided the application for interlocutory relief and I have deferred that application to a date convenient to the parties in the next short period. Instead I have made interim orders to preserve the subject matter of the litigation, namely Mr Murray's employment at the school and his right to engage in that employment without suffering adverse action for a prohibited reason, in the meantime. 19 I made the interim orders in circumstances where: (a) on the evidence presently before the Court it appears that the school has taken adverse action against Mr Murray. First, he has been suspended from employment on pay which, as I said in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 ("AMWU v Visy") at [107]-[110], may constitute adverse action. Second, he is the subject of a disciplinary process including an investigation which may constitute adverse action: see AMWU v Visy at [95]-[104]. Third, he has been threatened with dismissal which likely operates to reduce the security of his employment and therefore constitute adverse action; (b) Mr Murray contends that there are strong grounds for an inference that the adverse action was taken because he exercised a workplace right to make complaints to the school alleging bullying, harassment and victimisation in the workplace by Mr Johnson. The onus will be on the school to show that the substantial and operative reasons for any adverse action did not include such a prohibited reason: see s 361 of the Act; and (c) the allegation of adverse action for a prohibited reason, against the backdrop of allegations of long-term bullying, harassment and victimisation, is a serious matter. It is well accepted that workplace bullying and victimisation can damage an employee's psychological health. Such conduct can amount to a failure to provide a safe workplace in breach of s 21 of the Occupational Health and Safety Act 2004 (Vic), which is an indictable offence. 20 Given the seriousness of the allegations it is best that the interlocutory hearing be deferred until both parties can be heard, and best that the subject matter of the litigation be preserved in the meantime. Accordingly I made orders restraining: (a) the termination of Mr Murray's employment; and (b) the disciplinary process described in the school's letters dated 6 and 7 May 2015; until the application for interlocutory relief can be heard and determined. Mr Murray remains suspended on full pay so there should be no question of disruption to school activities arising from his presence. Although this involves a continuing expense for the school the IEU has provided an undertaking as to damages. 21 The applicant should urgently file a detailed affidavit to stand instead of Ms Catalini's short affidavit. The respondents should put on affidavit evidence in response. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate: Dated: 12 May 2015