FEDERAL COURT OF AUSTRALIA

Independent Education Union v Geelong Grammar School [2000] FCA 557

INDUSTRIAL LAW – termination of employment – prohibited reasons – interlocutory application – whether appropriate to order reinstatement

WORDS & PHRASES – “industrial law”

Workplace Relations Act 1996 (Cth) s 298K and s 298L(1)

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 applied

Slonim v Fellows (1984) 154 CLR 505 referred to

INDEPENDENT EDUCATION UNION and STEVEN HOLDEN v GEELONG GRAMMAR SCHOOL

V 219 of 2000

JUDGE:          FINKELSTEIN J      

DATE:            20 APRIL 2000

PLACE:          MELBOURNE

UPON the first 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.

COURT ORDERS THAT:

Until the trial of this proceeding or further order, the respondent is restrained from acting upon the notice dated 6 April 2000 terminating the employment of the second applicant. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The second applicant, Dr S Holden, is a well qualified English teacher.  The respondent, Geelong Grammar School, is one of the better known private schools in Victoria.  In November 1999 Dr Holden was engaged to teach English at the Timbertop campus of Geelong Grammar from 1 January 2000.  The engagement was brought to an end on 7 April 2000.  Dr Holden says he was dismissed for a “prohibited reason” or in breach of contract.  He asks to be reinstated as a teacher at the school.  In his application Dr Holden seeks an interim injunction to that effect, an application which is strenuously opposed. 

2                     Part XA of the Workplace Relations Act 1996 (Cth), comprising s 298A to s 298Z, is concerned with the freedom of association of employers and employees and related matters.  Section 298K provides that an employer must not dismiss an employee for a “prohibited reason”.  A dismissal will be for a “prohibited reason” if it is for one of the reasons mentioned in s 298L.  A short but convenient summary of those reasons is given by Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 (at 500):

“The prohibited reasons are contained in s 298L.  Each of the reasons relate to the exercise of the right of an employee or independent contractor to join, or refuse to join, an ‘industrial association’ (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests.  Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions.  The objective of s 298K is to ensure the threat of dismissal or discriminator treatment cannot be used by an employer to destroy or frustrate an employee’s right to join an industrial association to take an active role in that association to promote the industrial interests of both the employee and association.”

3                     Three of the prohibited reasons in s 298L(1) should be mentioned for they are relied upon by Dr Holden in this case.  So far as is relevant the subsection provides:

“(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

            …

(i)        has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

            (i)         compliance with that law; or

            (ii)        the observance of a person's rights under an industrial

                        instrument ; or

            …

(l)        in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; …”

4                     It should be noted that despite the wide language of s 298K, for constitutional reasons it must be read down in the manner required by the provisions found in Division 2 in its application to conduct that has occurred in States other than Victoria:  see s 298C.  As regards Victoria, there is no need for this limitation (see s 496) because that State has referred to the Commonwealth the power to enact the legislation.

5                     The facts that give rise to the claim for reinstatement are as follows.  Dr Holden is a member of the Victorian Branch of the Independent Education Union of Australia (IEU), the first respondent.  The IEU is an organisation registered under the Workplace Relations Act.  Dr Holden asserts that he is a chapter representative.  According to the union’s rules a chapter is “a group of Members who work together in the same school or place or grouping”.  Provision is made for the election of a chapter representative when there are more than two chapter members at a school.  Dr Holden was not elected as a chapter representative as no election for that office has been held.  I note that those entitled to vote at such an election are all union members who are employed at the school unless a separate campus has been designated as a chapter.  There is no evidence that the Timbertop campus has been so designated.  In the result, for the purposes of this application I will proceed on the basis that Dr Holden is not a chapter representative in any sense.  In any event, nothing turns on the point.

6                     Not long after he commenced duties, Dr Holden became concerned about the lengthy hours that he was required to work.  He said that he works an average of about 100 hours per week.  He works many days without a break.  He said that as at 1 March 2000 he had worked thirty-four consecutive days. 

7                     Dr Holden considers these conditions to be exceedingly onerous.  He said that his working hours have placed “an unreasonable strain on [his] physical and psychological health and [his] personal and family relationships”.  He also is concerned “about the excessive hours and the number of consecutive days impinging significantly on the capacity of [himself] and other teachers at the School to properly care for the students”. 

8                     It is likely that before Dr Holden took up his appointment as a teacher at the school he had been informed of the work that lay ahead.  In November 1999 Dr Holden and his wife, Ms Newell, spent a day at the school with Mr Scudamore, the head of Timbertop, and Mr Inkster, the deputy head.  They explained to Dr Holden and his wife the level of commitment required by the school’s teachers and the demands made on a teacher’s time, including the teaching duties that were involved.  This is not to say, however, that Dr Holden appreciated the impact that the working hours would have on him and his wife. 

9                     Dr Holden and Ms Newell met Mr Scudamore on 16 February 2000 to raise their concerns.  Mr Scudamore has described the meeting.  He said that both Dr Holden and Ms Newell were hostile.  He said that they complained about the way the school operated and that they had not been told about the level of Dr Holden’s workload.  Mr Scudamore said he believed the criticism to be unfair, because he and Mr Inkster had gone to some trouble to explain the workload.  According to Mr Scudamore during the meeting Ms Newell stated that all of the staff were “fools” for working under extreme conditions.  Mr Scudamore recalls Ms Newell saying that the staff thought of themselves as “heros”.  Mr Scudamore did not take kindly to these comments.  He regarded Ms Newell’s remarks as insulting both to him and to other staff members.

10                  Be that as it may, Mr Scudamore suggested to Dr Holden that he write down his concerns so that they could be passed on to Mr Twigg, the acting principal of Geelong Grammar.

11                  A few days later Mr Scudamore told Dr Holden that Mr Twigg would be attending at the Timbertop campus and wished to meet Dr Holden to discuss his concerns.  Dr Holden said that he was willing to meet Mr Twigg, but only on condition that a member of the union was present.  Mr Scudamore expressed the opinion that Mr Twigg is a most approachable and responsible person and that he would deal sympathetically with Dr Holden’s concerns.  No doubt this is true.  At the time, however, Dr Holden did not wish to discuss his concerns about the working conditions in the absence of a union representative, presumably so that he would have some measure of protection. 

12                  On 20 February 2000 Dr Holden wrote to Mr Scudamore as requested.  His letter sets out his complaints about the working conditions at Timbertop.  I assume that the letter does no more than repeat what Dr Holden had previously informed Mr Scudamore.  The material parts of the letter read:

“As I understand, the Occupational Health and Safety Act 1985 holds that it is the responsibility of the employer to provide a healthy and safe working environment.  I believe that the working conditions for teaching staff at Timbertop are in breach of this Act and pose unreasonable and unacceptable risks to the staff and subsequently to the students and wider community of Timbertop.

I have now been at work continuously for a total of twenty four days without a day off and I have a further ten days to complete before a scheduled day off.  I would like to state that all of these days have involved either scheduled classroom contact or compulsory hiking activities with the students.  These are full day commitments and often involve long hours, for example the requirement to perform evening supervision after a normal teaching day can extend daily working hours until 10.00pm.  Accompanying students on hikes involves of course a twenty four hour continuous duty of care.  All other teaching staff at Timbertop perform similarly.

I believe that this situation places unreasonable strain on an individual’s physical and psychological health, unreasonable strain on personal and family relationships and impinges significantly on the capacity of staff to fulfil professional obligations in regard to duty of care to the students of Timbertop.

Most prominent in my mind at the moment is the school’s expectation that I will hike with Timbertop students at the end of this week after having worked continuously for twenty seven days.  I have a duty of care to these students to ensure against injury and to take all reasonable steps to prevent it.  I have a duty of care to provide adequate first aid to these students and a duty of care to drive these students, if required, in a safe and responsible manner whilst being transported in school vehicles.  I believe the fact of having worked continuously for such a length of time must impact on my and all staff’s [sic] ability to act as required by law.

In the event of accident or injury my working conditions would certainly be relevant in any subsequent legal action, but I am concerned that I may still face significant personal legal risk.”

13                  Before sending the letter Dr Holden had given a draft to Mr Victory, a union organiser with the IEU.  Mr Victory approved the contents. 

14                  Mr Scudamore regarded the letter as “confrontational”.  Accordingly he decided it was inappropriate to deal with Dr Holden on the issues raised, but left the matter to the acting headmaster to whom he sent a copy of the letter. 

15                  On 25 February 2000 Mr Twigg wrote to Dr Holden suggesting that they meet.  Dr Holden spoke with Mr Twigg’s secretary to arrange a meeting at which Mr Victory would be present.  The secretary advised Dr Holden that it was unlikely that Mr Twigg would agree to such a meeting.  Accordingly on 8 March 2000 Dr Holden wrote to Mr Twigg confirming his understanding that the acting headmaster was not prepared to attend a meeting at which Mr Victory was present.  The letter then went on:

“Whether or not you wish to meet with me and my representative, I believe that the issues that I have raised in my letter are of extreme importance and require your immediate attention.  If you wish not to proceed with the meeting may I urge you to give the matter your prompt attention?  In this case I look forward to your written response to these issues within an appropriate time-frame.”

16                  Mr Twigg replied by letter of 23 March 2000.  The letter is important and reads:

“I was surprised to receive your letter of March 10, 2000 as I had thought I had made it clear to you in my letter of February 25, 2000 that I wish to discuss the occupational health and safety issues which you believe affect staff and students.  You must appreciate that these are matters of concern to me in my capacity as Acting Principal.

After you first wrote to Charles Scudamore on February 20, 2000 you will recall that I made myself available to see you when I went to Timbertop.  For reasons that remain unclear you did not wish to meet with me.

Your apparent lack of willingness to meet with me to discuss the issues, which you first raised in your letter of February 20, 2000, is also apparent in your letter to me of March 10, 2000.

So that you can be under no doubt, having regard to the seriousness of the issues which you have raised, I require you to make an appointment with me to discuss those issues which you have raised and which have a direct effect on occupational health and safety issues.  If, as a consequence of this meeting, it becomes necessary to hold further discussions more directly related to your employment, I am prepared to give consideration to any request which you might make at that time for the attendance of a representative of the Victorian Independent Education Union.

Please arrange the appointment requested with Chris Shannon on 52739247 by March 31, 2000 without any further delay.”

17                  Two points should be made.  First, Dr Holden was not as unwilling to meet Mr Twigg as the letter suggests.  It is true that he was not prepared to meet without a representative from the union.  However, provided the representative was present, Dr Holden was not only willing but apparently anxious to meet the acting principal to discuss his concerns. 

18                  Second, in those circumstances, it is by no means clear that it was reasonable for Mr Twigg to require Dr Holden to attend a meeting without a representative of the union being present.  It is true that Mr Twigg did suggest in his letter that if it were necessary to hold a further meeting “more directly related to [Dr Holden’s] employment” he would consider the appropriateness of the attendance of a union representative.  But Dr Holden was not only raising issues that affected his own employment.  He wished to discuss matters that affected all teachers who worked at Timbertop.  As I read Mr Twigg’s letter, he was indicating a preparedness to allow a union representative to be present if the situation was reached where Dr Holden’s position as a teacher might be threatened. 

19                  Dr Holden thought it necessary to correct the impression conveyed by Mr Twigg’s letter.  He wrote to Mr Twigg on 30 March 2000 affirming his willingness to meet Mr Twigg provided he was accompanied by Mr Victory.  He said it was his understanding that he was legally entitled to the presence of a representative from the union having regard to the issues to be discussed.  I assume that this comment was based on advice received from the union.  If that be so, the advice was wrong.  Be that as it may, Dr Holden threatened to take his complaints further.  He wrote:

“I believe that progress must be made on these issues regardless of whether or not we meet.  If you choose not to meet with me and my representative then I feel that you need to look at other ways to resolve these issues.  You would be aware that the Occupational Health and Safety Act 1985 does entitle me to pursue other avenues in order to prompt action.  I believe, however, that such action is highly undesirable and it is my sincere wish to avoid this.”

It would have come as no surprise to Dr Holden that Mr Twigg would not take kindly to this threat.  Perhaps Dr Holden thought the issue was so important, it could not be avoided. 

20                  When Mr Twigg read the letter he regarded it as “highhanded, insolent and a defiant rebuff to [his] genuine attempts to engage [Dr Holden] in communication”.  He said that he formed the view that he could no longer continue to employ a teacher who refused to engage in communication with him.  Mr Twigg said that it is fundamental to any ongoing relationship between a principal or acting principal and any teacher at the school that each be prepared to communicate with the other.  I accept that this is a reasonable position for the principal to take. 

21                  After receiving the letter Mr Twigg spoke to Mr Scudamore about its contents.  During their conversation Mr Scudamore told Mr Twigg of two other events concerning Dr Holden.  The first involved the occupational health and safety representative at the school, Ms Ball.  Ms Ball had informed Mr Scudamore that she had been requested by Dr Holden to resign from her position as occupational health and safety representative so that the position could be taken by Dr Holden.  Apparently Dr Holden wished to occupy that post, because it would provide him with a measure of protection in his pursuit of better working conditions.  Ms Ball informed Mr Scudamore that she was very embarrassed by the incident.

22                  The second matter was that some unidentified person, believed to be Dr Holden, had placed notices concerning working conditions on the staff noticeboard. One staff member expressed annoyance about these notices.  Mr Scudamore raised the issue with Dr Holden and since then no further incident had occurred.

23                  It is clear enough that by late March 2000 Mr Scudamore did not hold Dr Holden and his wife in high regard.  In this connection I set out some sentences from Mr Scudamore’s affidavit where he explains his position:

“From the beginning they [Dr Holden and his wife] seemed to attack the school.  I believe the school community at Timbertop made a genuine attempt to welcome Dr Holden and his family into the community.  Ms Newell remained hostile to the school and its values and was openly cynical of staff who adopted those values.

…

The negative attitude of Dr Holden and his wife to the school has had a destabilising effect upon staff who have expressed a resentment about their negative criticism of the school, particularly in circumstances where he [Dr Holden] has not experienced a full year at the school.

…

I concede that the teachers at the school have a heavy work load and I have not calculated the average number of hours which are performed by teachers.  However … the workload expected of teachers was fairly and squarely expressed at the interview with [Dr Holden].”

24                  It is likely, in my opinion, that Mr Scudamore informed Mr Twigg of his feelings about Dr Holden and his wife.  Indeed, I assume that in their conversation Mr Twigg would have requested Mr Scudamore to state his opinion, bearing in mind that he is the head of the Timbertop campus and thus best placed to make comments about teachers employed at that campus.  It is important to note that notwithstanding his criticism of Dr Holden, Mr Scudamore has not made any adverse comment on Dr Holden’s ability to teach. 

25                  Having discussed the matter with Mr Scudamore, Mr Twigg remained of the view that Dr Holden’s employment should come to an end and on 7 April 2000 a letter to that effect was given to Dr Holden.  The letter spoke of Dr Holden’s refusal to meet with Mr Twigg “in clear defiance of [his] authority as Acting Principal”.  Reference was made to the letter of 30 March 2000 which was described as both “defensive and arrogant”.  The threat “to pursue other avenues in order to prompt action” is referred to.  Dr Holden is characterised as having behaved in a “high-handed, ill-informed and threatening” manner which was said to be unacceptable.

26                  I do not doubt that one reason, perhaps the principal reason, for the school to dismiss Dr Holden was his refusal to meet with Mr Twigg which was seen as a defiance of authority.  It also seems clear, at least for the purposes of this application, that this is not the only reason.  Uppermost in the mind of Mr Twigg was Dr Holden’s general attitude, that is to say, his perceived high-handed and arrogant attitude. 

27                  However, none of those reasons are prohibited reasons under the Workplace Relations Act.  What I have to decide is whether there was such a reason.  More particularly, this being an interlocutory application, I must determine whether Dr Holden has shown there to be a serious case to go to trial on the question of whether he was dismissed for a prohibited reason. 

28                  In this connection I should refer to s 298V which provides, in substance, that if an employee alleges that he or she has been dismissed for a prohibited reason it is to be presumed that that was the reason unless the employer proves otherwise.  There is a difference of opinion as regards how this section is to be applied in the case of an application for interim or interlocutory relief:  the competing views are expressed in Davids Distribution Pty Ltd.  I need not embark upon a consideration of that matter on this application. 

29                  Turning to the first ground relied upon, namely that Dr Holden was dismissed because he is an officer, delegate or member of an industrial association, namely the IEU, (s 298L(1)(a)) it is clear, in my opinion, that this allegation is not sustainable.  The impression that I have is that the school was quite indifferent to Dr Holden’s position as a member of the union and it is unlikely that it was aware that he claimed to be a chapter representative.

30                  The suggestion that Dr Holden was dismissed because he proposed to make a complaint to a body having the capacity under an industrial law to seek compliance with that law (s 298L(1)(i)) is a matter of some difficulty, but I tend to the view that it is not made out.  An industrial law is defined in s 298B(1) to mean a law that, among other things, regulates the relationship between employers and employees.  Dr Holden has threatened to raise his concerns with Workcover which is the Victorian body that administers the Occupational Health and Safety Act 1985 (Vic).  In certain respects that Act regulates the relationship between employers and employees by imposing duties on employers to maintain a working environment that is in a safe condition and without health risks (s 21(1)).  However, there seems to be no mechanism under that Act by which a person or body can secure “compliance” with the obligations that are imposed.  The statute does make provision for the imposition of penalties when there is a contravention.  As presently advised I do not believe that a person who has the ability to bring proceedings for a penalty under the Occupational Health and Safety Act, is a person who has the capacity to seek “compliance” with that Act.  Section 298L(1)(i) seems to be directed to a situation where an employer can be compelled to perform or refrain from performing certain acts that are connected with the relationship between employer and employee.  Thus, although the Occupational Health and Safety Act may be an industrial law, it is not a law in respect of which a person can compel compliance.  This tentative opinion would rule out the applicability of s 298L(1)(i). 

31                  Finally, there is the question whether Dr Holden has established that he has been dismissed due to his dissatisfaction with his conditions of employment:  s 298L(1)(l).  First, it does not seem to be in dispute that the union is seeking better industrial conditions for teachers, which is a fact that must be established before the section has any operation.  Second, it is certainly clear that Dr Holden is dissatisfied with his conditions of employment.  Third, it is in my view sufficiently arguable that Mr Twigg had in mind the fact of Dr Holden’s dissatisfaction as one of the reasons why he should be dismissed.  I think that both he and Mr Scudamore regarded Dr Holden’s dissatisfaction as disruptive, especially having regard to the manner in which Dr Holden was dealing with the issue.  Indeed, I think it would be very difficult for Mr Twigg to keep separate in his mind, and out of account, his knowledge of Dr Holden’s actions in seeking better working conditions and the manner which he sought to achieve that result.  I can well understand that Mr Twigg and Mr Scudamore regarded that manner as offensive and it is their strong feelings in this regard that leads me to the view that a sufficient case has been shown that this motivated the dismissal.

32                  Section 298U gives the court power to order the reinstatement of an employee if an employee has been dismissed for a prohibited reason.  The section also gives the court power to grant interim relief. 

33                  Having satisfied myself that Dr Holden has shown that there is a serious case that his dismissal was for a prohibited reason, the question arises whether he should be reinstated on a temporary basis.  An essential factor in determining whether I should grant that relief is whether Dr Holden would suffer “irreparable harm” if denied relief.  “Irreparable harm” is a phrase familiar in equity jurisprudence.  It is taken to mean that the plaintiff must show that he is at some risk of injury which cannot be compensated or remedied other than through the grant of an interlocutory injunction.  The rationale is well understood.  If damages will provide adequate compensation and the defendant is in a position to pay them, then ordinarily there will be no justification in running the risk of an injunction pending trial. 

34                  Here, however, it must be remembered that reinstatement is a remedy that is available to Dr Holden if he ultimately succeeds in his claim against the school.  In the case of dismissal for a prohibited reason it might be taken to be accepted that, in the ordinary case, reinstatement is the appropriate remedy.  It is true, as the High Court pointed out in Slonim v Fellows (1984) 154 CLR 505, that a court should act with some caution before it orders reinstatement because it is an interference with an employer’s ordinary rights.  But when the dismissal is for a prohibited reason, in particular a reason of the type mentioned in the provisions presently under consideration, the court should not be hesitant in granting the remedy in an appropriate case. 

35                  I think that Dr Holden is entitled to interim relief in this case for the following reasons:

            1.         As he explained in his affidavit, Dr Holden will suffer some financial hardship if he is out of employment. 

            2.         Dr Holden and his family suffer considerable hardship if his dismissal stands, because he must move from the accommodation that is provided to him by the school.  Not only will this require Dr Holden to find new premises, but it is likely that he will need to find a new school for his young son.

            3.         The stigma attached to a dismissal from employment by a school of the standing of Geelong Grammar cannot be underestimated.  I assume that it will not be easy for Dr Holden to find a substitute teaching position in the short-term no matter how much effort he puts into explaining the reasons for the termination.

            4.         I have already mentioned the fact that no complaint has been directed to Dr Holden’s capacity as a teacher.

            5.         Although it is possible that there will be some friction between Dr Holden and Mr Twigg, Dr Holden works at a different campus and is not likely to have much contact with Mr Twigg.

            6.         I accept that the relationship between Dr Holden and Mr Scudamore is not altogether satisfactory.  I am quite satisfied, however, that Mr Scudamore will do all that is necessary to make sure that their relationship is satisfactory so that Dr Holden can properly undertake his teaching duties.

            7.         I am satisfied that if the school is required to retain Dr Holden at Timbertop, little disruption will be caused to other members of staff or the pupils who attend at that campus. 

Associate:

Dated:              2 May 2000