FEDERAL COURT OF AUSTRALIA

McIntosh v Australian Postal Corporation [2001] FCA 1012

DISCRIMINATION – sex discrimination – application for interim injunction pending enquiry and conciliation process before Human Rights and Equal Opportunity Commission – employer proposing to terminate employment on payment in lieu of notice – concession that employment relationship has broken down – whether balance of convenience in favour of grant of injunction – whether costs should be paid by unsuccessful applicant

Sex Discrimination Act 1984 (Cth) s 5(1) and (2)

Human Rights and Equal Opportunity Commission Act 1986  (Cth) s 46PP(1)

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 mentioned

Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 482 mentioned

Bostik (Australia) Pty Ltd v Gorjevski (No1) (1992) 35 FCR 20 at 32 mentioned

JANE McINTOSH v AUSTRALIAN POSTAL CORPORATION

V 740 OF 2001

HEEREY J

27 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks an injunction preventing the respondent Australian Postal Corporation (Australia Post) from terminating her employment pending the conciliation of this matter by the Human Rights and Equal Opportunity Commission (the Commission) and an interim injunction in the same terms until the Commission has completed an inquiry and conciliation process, which will take about four weeks from today. 

2                     The applicant is currently employed by the respondent Australia Post as a corporate account executive.  She works on the Telstra account.  She commenced that employment on 20 March 2001.  It is an important senior appointment carrying a salary of $90,000 with potential for bonuses and the like up to $140,000.  Telstra is Australia Post’s largest customer.

3                     The applicant lodged a claim with the Commission on 9 July 2001 under the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth).  On the hearing before me her case was put only under the latter Act.  It was said that the applicant had not been given the same treatment as her male peers.  The management structure in place across the corporate accounts was not made to work for her and she was not treated as or given the authority necessary for her to meet her accountability as the senior executive.  This was said to be contrary to s 5(1) of the Sex Discrimination Act.  It was also said that, contrary to s 5(2), that there was a condition, requirement or practice imposed on her which was likely to have the effect of disadvantaging women.  That condition was that she meet her accountability without the staff working with her being made to account to her or follow her direction. 

4                     At the centre of the dispute is the relationship that the applicant has with a fellow executive, Ms Louise Malady.  The applicant complains that Ms Malady undermined her authority and did not inform her of what she was doing in relation to the Telstra account.  There is substantial evidence from Australia Post denying this and also asserting that the management structure was not as the applicant says.  Australia Post says that although Ms Malady was on a lower salary grade the applicant was not her superior in any management line sense.

5                     I think there is an issue to be tried.  There is factual conflict both as to events which are said to have happened and as to the nature of Australia Post’s organisation and how it is managed in practice.  However, I have come to the conclusion that on the balance of convenience an interim injunction should not be granted. 

6                     The interim injunction was sought under s 46PP(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act) which provides:

“(1) at any time after a complaint is lodged with the commission the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain

(a)     the status quo as it existed immediately before the complaint was lodged or

(b      the rights of any complainant, respondent or affected person.”

7                     The expression “interim injunction” is used in the New South Wales sense so as to include what Victorian lawyers would call an interlocutory injunction, that is an injunction until the trial and determination of the action: cf Trade Practices Act 1974 (Cth) s 80(2).  To Victorians, an interim injunction is one issued for a very short period, usually a few days and often ex parte. 

8                     Fundamental to this question is the frank concession at the outset by senior counsel for the applicant that the applicant did not disagree that the employment relationship had broken down and that it was unlikely this relationship could continue in the future.  This is consistent with what was said in a letter the applicant wrote to the Managing Director of Australia Post on 23 July 2001 in which she said that she desired to “negotiate bona fide a dignified and reasonable resolution to this matter” and urged the Managing Director to “bring some sanity and closure to this situation”.

9                     At common law it is firmly established that specific performance will not be granted for a contract of employment except in exceptional circumstances: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428, Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 482 and Bostik (Australia) Pty Ltd v Gorjevski (No1) (1992) 35 FCR 20 at 32.  It is true, as senior counsel for the applicant puts it, that the Act “creates a broader concept”.  Potential rights and remedies extend beyond what is available at common law.  But s 46PP(1) must be taken to have been drafted in the light of the possibility that, following an inquiry and conciliation before the Commission, an employer and employee might resolve their differences and continue employment as before.  Often that can happen.  Employer and employee can recognise that perhaps there has been fault on both sides and that a fractured relationship can be patched up.  But unfortunately that is not the case with the present matter.  I do not think it would be reasonable to impose on the respondent a term that the applicant return to work given it is common ground that the relationship has broken down.  This is particularly so because the applicant's position is a senior and important one, one of trust and confidence, and one in which harmonious personal relationships both with her fellow employees and customers such as Telstra are critically important.  Still less is it reasonable that she be continued on in employment on the basis that she not have to attend for work. 

10                  The contractual position is that her employment can be terminated without cause on three months’ notice or the payment of three months’ salary in lieu of notice.  The intention of Australia Post is to invoke that term.  From a purely financial point of view the applicant will be not disadvantaged for the purpose of conducting the conciliation.  Indeed she will be better off because she would receive three months’ salary in a lump sum rather than salary month by month.

11                  It was said that the injunction should be granted so as to preserve her authority and status and reputation and that this would be important for the purpose of the conciliation.  However, as counsel for Australia Post pointed out, the conciliation will be in private.  As far as her reputation goes, the hard fact is that, given that the employment relationship has permanently broken down, from the point of view of any future employer she may have to explain that she had only a short period of employment with Australia Post.  But the grant of an interim injunction could not alter that position.

12                  Insofar as an injunction is sought to give her some leverage or bargaining advantage in relation to the conciliation, I do not think that is a legitimate consideration.  Section 46PP(1) is designed to preserve the status quo.  The status quo in this context means, I think, a working employment relationship which is at least potentially capable of being continued after the processes of the Commission have been put into effect.  That is not the case here.  So the application for an interim injunction will be dismissed.

13                  As to the question of costs, in the ordinary course when an application for an interim or interlocutory injunction fails the party seeking the injunction will be ordered to pay costs.  The practical situation in the present case is that there will be no further substantive hearing because once the conciliation process takes place that will be the end of the matter before the Commission.  So that perhaps strengthens the case for the application of the ordinary rule. 

14                  It was said on behalf of the applicant that there should be no hindrance to people who wish to bring proceedings under the Act.  Reference was made by analogy to s 46 which prohibits victimisation of people who make complaints.  But it seems to me that the analogy does not really hold good.  The applicant has already made a complaint to the Commission. There has not been any interference with her taking that course.  Whether or not it was reasonable for the applicant to bring the present application, it is an everyday event with our costs indemnity system that losing parties who bring or defend proceedings quite reasonably but nevertheless lose are ordered to pay costs.  Sometimes a policy decision is made by Parliament that a particular jurisdiction should, except in special circumstances, exclude the rule that costs follow the event.  A well-known example is s 347 of the Workplace Relations Act 1996 (Cth).  There is no such provision in the Act.  That to my mind, is another consideration which points in favour of the application of the ordinary rule.  So there will be an order that the applicant pay Australia Post’s costs.

Associate:

Dated:              31 July 2001