FEDERAL COURT OF AUSTRALIA Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix Pty Ltd [2018] FCA 1879 File number: QUD 805 of 2018 Judge: RANGIAH J Date of judgment: 16 November 2018 Catchwords: INDUSTRIAL LAW – application for interlocutory injunction requiring respondent to reinstate applicant in employment – where applicant's employment was terminated on a summary basis – where applicant alleges respondent took adverse action because a workplace right was exercised – where respondent alleges that applicant breached Code of Conduct – application allowed Legislation: Fair Work Act 2009 (Cth) ss 340(1), 341(1), s 342(1), and 361(1) Cases cited: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333 Date of hearing: 16 November 2018 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: Mr WL Friend QC Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Mr A Duffy QC Solicitor for the Respondent: Colin Biggers & Paisley ORDERS QUD 805 of 2018 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Applicant AND: ELECTRIX PTY LTD Respondent JUDGE: RANGIAH J DATE OF ORDER: 16 NOVEMBER 2018 Upon the applicant giving the usual undertaking as to damages THE COURT ORDERS THAT: 1. Until the hearing and determination of this proceeding, or further order, the respondent reinstate Richard Bowling in the employment he had before 5 November 2018, with continuity of service being maintained for all purposes. 2. The applicant file and serve its statement of claim by 4pm on 30 November 2018. 3. The respondent file and serve its defence by 4pm on 7 December 2018. 4. The applicant file and serve any reply by 4pm on 14 December 2018. 5. The proceeding be listed for a case management hearing on a date to be fixed. 6. Costs are reserved. 7. The parties have liberty to apply on 3 days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (DELIVERED EX TEMPORE AND REVISED) RANGIAH J: 1 This is an application for an interlocutory injunction requiring the respondent to reinstate Richard Bowling to his employment until the determination of the principal proceeding or further order. 2 Mr Bowling's employment was terminated by the respondent, Electrix Pty Ltd (Electrix), on a summary basis on 5 November 2018. He had been employed as an asset inspector. His employment involved inspecting electricity assets over a large area between at least Rockhampton and Mackay in Queensland. 3 Mr Bowling commenced his employment on 23 October 2017. He became a delegate of the applicant union (the Union) on 13 August 2018. In that capacity, he has been involved in several industrial disputes between the Union and Electrix. These were bargaining for an enterprise agreement, a dispute about penalty rates for work on Sundays and a dispute about whether two delegates (rather than only one) should have been permitted leave to attend a conference held by the Union. 4 Mr Bowling deposes that, since becoming a Union delegate, the behaviour of his managers has changed towards him. He gives as an example of this, a derogatory comment allegedly made by Diane Healey towards him. Ms Healey denies making the comment. 5 Mr Bowling deposes that on 18 October 2018 he was required to meet a supervisor, Nick Lake, outside an address at Sarina. Mr Lake had contacted him by phone the previous day asking to meet him to discuss a fault that Mr Bowling had missed during an inspection. During the phone call, Mr Lake advised that they would discuss the issue and that they might look at services on either side of a pole that serviced the address. The day was a travel day, set aside for travel from a remote location back to Rockhampton, but which might also include some work as an asset inspector. As arranged, Mr Bowling drove to the address. He says he waited an hour and 20 minutes for Mr Lake to arrive. While waiting, he had normal (not work) clothes on. He had his Personal Protective Equipment (PPE) in the car in case Mr Lake wanted him to inspect the fault. 6 Mr Bowling deposes that when Mr Lake arrived they had a conversation to the following effect: Lake: You have got to be fucking kidding me. Bowling: What's wrong mate? Lake: You're the union delegate. Bowling: What's that got to do with anything? Lake. This is bullshit, you're fucking not wearing any PPE, and your fucking offsider isn't wearing any PPE either. 7 At that point Mr Lake left the site. Mr Lake confirms that the event and conversation took place, although his version of the conversation is in slightly different terms. It is not in dispute that Mr Lake chastised Mr Bowling for not wearing PPE and that he referred to Mr Bowling being a Union delegate in the context of the poor example he was setting by not wearing PPE. 8 On 22 October 2018, Mr Bowling received a letter requiring him to attend a meeting to discuss two allegations against him. Those allegations concerned his conduct at the site in Sarina on 18 October 2018 and his time-sheet entries for 30 September 2018 and 1 October 2018. Mr Bowling attended a meeting with a number of managers the following day. He was told that Mr Lake had made a complaint about him not wearing PPE. Mr Bowling gave an explanation that he was on a drive-home day and no work was performed that day. His Union representative pointed out that Electrix' Code of Conduct provides that PPE only needs to be worn when work is being performed. Mr Bowling says that it was very common, for people to wear casual clothes on their drive-home days and that members of the workforce would often turn up to the office on those days wearing normal clothing and that this had not been raised as an issue previously. 9 Mr Bowling contends that he was not in breach of the Code of Conduct as he was not on a worksite. The Code of Conduct provides that: The wearing of issued Personal Protective Equipment (PPE) is compulsory where: • Worksite hazards exist • Work instructions specify the use • Local site construction require the use • It is standard practice for the task being undertaken 10 It is common ground that no instruction had been provided by Electrix for Mr Bowling to wear PPE at all times during working hours, or at all times while he was working. 11 At the meeting, Mr Bowling was also told that he should have advised Ms Healey that he would not be working on the 1 October 2018 public holiday. Mr Bowling said that he had received a text message which stated: There is a public holiday Monday 1 October; mid stint. Either have off while you away or you decide and let me know if you want to move it and take on another day. 12 Mr Bowling deposes that he did not think that he was required to notify management unless he intended to work the public holiday and take another day off in its place. It is true to say that the text message is ambiguous and unclear as to whether Mr Bowling was required to notify Ms Healey if his intention was to work on the public holiday. 13 During the meeting, Electrix' managers also alleged that there were extra kilometres that his work vehicle had been recorded as driving between 30 September and 1 October 2018. Mr Bowling responded that he did not know why there were additional kilometres on the work vehicle. He says he explained that he did use the vehicle on weekends for some personal use but not to the extent that was being asserted. He also said he could not explain the amount of fuel it was claimed he had used during that two-day period. Mr Bowling says that he was not given any details to respond to. 14 During the meeting, it was alleged that Mr Lake had seen Mr Bowling's offsider driving his personal car with Mr Bowling's boat attached to it without the approval of management. Mr Bowling said that he was not aware that he would require approval from management for this. He explained that they were using the boat after work hours to go fishing. 15 During the meeting, a complaint was made that Mr Bowling had not attempted to discuss with management that he had booked accommodation in Mackay rather than Sarina for the period from 24 September to 4 October 2018. Mr Bowling has produced an exchange of text messages concerning the accommodation issue. Following the text message exchange, he phoned a manager, Peter Crook, and discussed the matter further, saying that if he could not find suitable accommodation in Sarina, he would book accommodation in Mackay. Mr Bowling says he was unable to find suitable accommodation in Sarina and then proceeded to book accommodation in Mackay. He said he sent a text message to Mr Crook, showing the last accommodation in Sarina was no longer available. He says he has since noticed that the message failed to send. 16 Following the meeting, Mr Bowling was told that he would hear the outcome within 48 hours. On 25 October 2018, he was advised that Electrix was still investigating the allegations. On 2 November 2018 Mr Bowling was requested to attend a meeting on 5 November 2018 in Rockhampton. At that meeting, he was told that each of the allegations had been substantiated, other than the allegation regarding his off sider towing Mr Bowling's boat while using his personal car. He was advised that his employment was to be terminated immediately and that he would not be paid any money in lieu of notice because not wearing PPE was a major safety breach. 17 At the time that Mr Bowling affirmed his affidavit on 8 November 2018, he had not received any letter giving the reasons for his termination. However, there is in evidence a letter dated 5 November 2018 from Electrix to Mr Bowling giving the reasons for the termination. A reason for the termination was said to be that, "you did not wear your Company provided Personal Protective Equipment". The letter went on to give other reasons reason as "Time-sheet entries for 30 September 2018 and 1 October 2018 whilst working away from home as well as the use of the Company vehicle when working away from home". In respect of the latter allegation, the letter stated that, "you were not directed to stay in Mackay by Acting Project Manager—Peter Crooks". The letter stated that his fuel usage indicated that he travelled 900 km which he was not required to do while working in the vicinity of Mackay and Sarina. 18 The letter went on to say: Your reasoning for not wearing your PPE on Thursday 18 October 2018 on a workday where you were on site is inexcusable, as PPE is required to be worn on each and every workday. It is also able to be worn during a wash down of the vehicle and this has never been an exception. 19 The letter stated that: …your actions constitute serious misconduct as per the Electrix Code of Conduct Policy…, your Employment Agreement and your Electrix Pty Ltd Electrical Supply Industry Queensland Enterprise Agreement 2015–2018 and will therefore terminate your employment effective immediately. 20 Mr Bowling has brought a proceeding in this Court, alleging that Electrix took adverse action against him because he exercised a workplace right in contravention of s 340(1) of the Fair Work Act 2009 (Cth). 21 Section 341 defines "workplace right", relevantly, as follows: (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or ... 22 Under s 342(1) of the Act, adverse action is taken by an employer against an employee, if, relevantly, the employer dismisses the employee. 23 Section 361 of the Act provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 24 The relevant legal principles are not in dispute. Both parties refer to Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, where Greenwood J said at [21]: The organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65]– [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. (Underlining added). 25 It is not in dispute that Electrix took adverse action against Mr Bowling. The dispute is as to the reasons for it. The respondent says that there is no evidence of a connection between Mr Bowling's role and activities as a Union delegate and the termination of his employment. It asserts that they are independent of each other. Electrix has produced a number of affidavits in which the managers who were involved in, or responsible for, the termination of Mr Bowling's employment deny that his employment was terminated for any reason to do with his position as a Union delegate. 26 There is some evidence connecting the role of Mr Bowling as Union delegate with the termination of his employment. Mr Lake made express reference to his position as a delegate when chastising him for not wearing PPE. It was the failure to wear PPE that led to the chain of events that resulted in this termination. Mr Bowling also submits that the reasons given for the termination are weak or trivial, which suggests that they were not genuine reasons. He points to the absence of any evidence indicating that there were verbal or written instructions given to Mr Bowling that he was required to wear PPE on a driving day, or in a situation such as that he was in on 18 October 2018. 27 It may be said that there is nothing in the Code of Conduct which specifies or indicates that an employee is always required to wear PPE when driving from one place to another or when required to meet a supervisor at a site. Of course, Mr Bowling may have been required to inspect an asset, which would likely have required him to wear PPE, but the situation never reached that point. Mr Lake deposes that he was concerned about safety if work was required to be done. But as I have said, he left without any inspection taking place. 28 The Code of Conduct does not place any absolute prohibition upon private use of a work motor vehicle. However, there are restrictions upon private use. Mr Bowling deposes that he was not given details of the allegations of private use, and the extent of the use does seem to have changed in the respondent's material from 900 km to 600 km. He does not appear to have been provided with an adequate opportunity to address the allegation, which may suggest that the reason was not genuine. 29 I am satisfied that the applicant has demonstrated a prima facie case for relief for contravention of s 340(1) of the Act. In reaching that conclusion, I take into account that at trial, the onus will be on Electrix to overcome the presumption that arises under s 361(1) of the Act. It is undesirable for me to say anything more about the strength or weakness of the case. 30 I am satisfied that the balance of convenience favours reinstatement of Mr Bowling to his employment on an interlocutory basis. 31 I take into account that Mr Bowling has deposed that he has a mortgage and debts that he will be unable to service without employment, and that he deposes that finding alternative employment is not particularly easy in Rockhampton. In that regard, he has checked online for available jobs that are suitable for him, but has not been able to find any. 32 Of particular importance is that I consider that compensation would not be an adequate remedy. There is likely to be a personal and psychological impact upon any person as a result of forced unemployment. It is likely to take at least six months before the matter proceeds to trial. 33 The managers from Electrix have deposed that they have lost their confidence and trust in Mr Bowling as a result of his conduct. However, I consider that the reasons given for the termination of his employment are not such as to demonstrate that they would be unable to work with him in a productive manner. 34 For these reasons, I consider that an interlocutory injunction should be granted requiring Electrix to reinstate Mr Bowling until the hearing and determination of his proceeding or until further order. 35 Given that the interlocutory injunction is in place, and given the nature of the employment relationship between Mr Bowling and Electrix, I recommend that consideration be given to the trial being listed and heard expeditiously. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 27 November 2018