Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – interlocutory injunction – complaints against applicant CEO by employees and union – application to prevent respondent employer from taking action on basis of allegations and subsequent investigation until applicant’s substantive application is heard – applicant represented employer in Enterprise Agreement negotiations – whether breach by employer of s 340 Fair Work Act 2009 (Cth) – whether breach of terms of applicant’s employment contract – whether serious questions to be tried – whether balance of convenience favours grant of interlocutory injunction – potential harm to employees – whether damages an adequate remedy

Held: interlocutory injunction granted

Fair Work Act 2009 (Cth) ss 176, 178, 340, 341, 342(1), 342(2), 360, 361, 539, 545, 546, 564

Federal Court of Australia Act 1976 (Cth) ss 19, 22

Workplace Health and Safety Act 1995 (Qld)

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 followed

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 cited

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 followed

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited

Kimpton v Minister for Education (1996) 65 IR 317 cited

Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 cited

Malloch v Aberdeen Corporation [1971] 1 WLR 1578 cited

Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 cited

Police Federation of Australia v Nixon (2008) 168 FCR 340 cited

United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 cited

ELIZABETH LOUISE JONES v QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)

QUD 274 of 2009

COLLIER J

25 NOVEMBER 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 274 of 2009

BETWEEN:

ELIZABETH LOUISE JONES

Applicant

AND:

QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)

Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	25 NOVEMBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The respondent be restrained until the hearing of the application or further order from taking any action against the applicant in reliance upon:

(a) any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 7 August 2009; and/or

(b) the complaint made against the applicant by Nicola Bowes dated 7 August 2009; and/or

(d) the anonymous complaint made against the applicant dated 12 August 2009; and/or

(e) the complaint made against the applicant by Danelle Bayley dated 13 August 2009 and/or

(f) any allegations against the applicant made by the Australian Services Union in its letter to the respondent dated 14 August 2009; and/or

(g) the Carol Watson Report on Grievances against CEO, QTAC dated 28 September 2009 and/or

(h) Walter Williams’ diary notes forwarded to the applicant by Professor Deborah Terry on about 30 October 2009.

2. The respondent be restrained until the hearing of the application or further order from terminating the applicant’s employment.

3. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 274 of 2009

BETWEEN:

ELIZABETH LOUISE JONES

Applicant

AND:

QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)

Respondent

JUDGE:	COLLIER J
DATE:	25 NOVEMBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Introduction

1 Ms Elizabeth Jones is the Chief Executive Officer of Queensland Tertiary Admissions Centre Ltd (“QTAC”). Ms Jones has occupied that role for seven years. The tenor of her claim is that, until July this year, her relationship with her employer was uncontroversial. However during and from July 2009 she participated in enterprise bargaining negotiations on behalf of QTAC with the Australian Services Union (“ASU”). Ms Jones claims that, since July 2009 and following communications by the ASU with QTAC, she has been the subject of an improper investigation instituted by QTAC, as well as the subject of complaints by employees both anonymous and identified, complaints by the ASU, and diary notes of another employee critical of Ms Jones but to which QTAC has had regard. Ms Jones is concerned not only by the investigation, but by the prospect that QTAC will terminate her employment in light of these events. On 16 November 2009 Ms Jones filed an application seeking both permanent and interlocutory relief against QTAC.

2 The parties appeared before me last Thursday afternoon. Lengthy and detailed submissions were made by counsel on both sides. It is clear, however, that at this stage I am being asked only to make a decision in respect of the interlocutory relief sought. The substance of this relief is that QTAC be restrained from taking any action against Ms Jones, including terminating her employment, until the hearing of the substantive application. Mr Murdoch SC on behalf of QTAC gave an undertaking during the hearing that no action would be taken by QTAC in respect of Ms Jones’ employment until delivery of my decision in relation to the interlocutory relief she has sought.

3 In her application filed 16 November 2009 Ms Jones claimed as the legislative basis of the Court’s jurisdiction to hear the application and grant both the interlocutory and final relief sought:

· the Fair Work Act 2009 (Cth) (“the FW Act”) ss 340, 341, 342(1), 342(2), 360, 361, 539, 545, 546 and 564; and

· the Federal Court of Australia Act 1976 (Cth) s 19 and s 22.

4 However it became clear during the hearing that, at least for the purposes of the interlocutory relief sought, Ms Jones was principally relying on ss 340, 341 and 342 of the FW Act. I shall return to these provisions later in the judgment.

Issues for Decision

5 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.

6 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]).

7 It follows that it is for Ms Jones to satisfy me positively in respect of these issues. Before turning to these issues however it is appropriate to identify the precise relief sought by Ms Jones, and, in more detail, the background to this application.

Relief Sought

8 Pursuant to her application Ms Jones seeks relief for adverse action taken against her, and/or proposed to be taken against her, by QTAC because of her role in negotiations for an Enterprise Agreement, and for breach of her contract of employment.

9 The permanent relief sought by Ms Jones is as follows:

A. DETAILS OF CLAIM

On the grounds stated in the accompanying affidavit or statement of claim (or such other accompanying document as may be prescribed by the Rules) the Applicant claims:

1. Pursuant to section 545(2)(a) of the FW Act, an injunction restraining the Respondent from taking any action against the Applicant in reliance upon:

a. any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 7 August 2009; and/or

b. the complaint made against the Applicant by Nicola Bowes dated 7 August 2009; and/or

c. the anonymous complaint made against the Applicant dated 11 August 2009; and/or

d. the anonymous complaint made against the Applicant dated 12 August 2009; and/or

e. the complaint made against the Applicant by Danelle Bayley dated 13 August 2009; and/or

f. any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 14 August 2009; and/or

g. the Carol Watson report on Grievances against CEO, QTAC dated 28 September 2009; and/or

h. Walter Williams’ hand written diary notes forwarded to the Applicant by Professor Deborah Terry on about 30 October 2009.

2. Pursuant to section 545(2)(b) of the FW Act, the Respondent pay the Applicant compensation for loss suffered by the Applicant because of the Respondent’s contravention of the FW Act;

3. Pursuant to section 546 of the FW Act, the Respondent pay the Applicant a pecuniary penalty for the Respondent’s contravention of the FW Act;

4. A declaration that it is a term of the employment contract between the Applicant and the Respondent dated 29 November 2007 that the Applicant is entitled to be accorded natural justice in any investigation into any complaint or allegation of serious misconduct as set out in clause 15.2 of the employment contract and/or unsatisfactory performance or misconduct as set out in clause 15.3 of the employment contract.

5. A declaration that the Respondent is in breach of the contract of employment between the Applicant and the Respondent by failing to:

(a) accord the Applicant natural justice in the purported investigation into the allegations and complaints against her, as referred to in paragraph 1 above.

6. Damages for breach of contract.

10 On 16 November 2009 Ms Jones also filed a Statement of Claim which in essence identified two causes of action, namely that:

· In contravention of s 340(1) of the FW Act, QTAC has taken adverse action against Ms Jones in that QTAC has injured Ms Jones in her employment including commencing a disciplinary investigation against her without reasonable or adequate cause.

· QTAC had breached an implied term of its employment contract with Ms Jones in that it has failed or refused to reliably or properly determine whether Ms Jones committed any act of serious misconduct or has been guilty of unsatisfactory performance or misconduct, and accordingly QTAC has failed to accord Ms Jones natural justice.

11 I shall return later in this judgment to consider these causes of action.

12 The interlocutory relief sought, and which is the subject of this judgment, is as follows:

B. CLAIM FOR INTERLOCUTORY RELIEF

AND the Applicant claims by way of interlocutory relief:

1. The Respondent be restrained until the hearing of the Application or further order from taking any action against the Applicant in reliance upon:

a) Any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 7 August 2009; and/or

b) The complaint made against the Applicant by Nicola Bowes dated 7 August 2009; and/or

c) The anonymous compliant made against the Applicant dated 11 August 2009; and/or

d) The anonymous complaint made against the applicant dated 12 August 2009; and/or

e) The complaint made against the Applicant by Danelle Bayley dated 13 August 2009 and/or

f) Any allegations against the Applicant made by the Australian Services Union in its letter to the Respondent dated 14 August 2009; and/or

g) The Carol Watson Report on Grievances against CEO, QTAC dated 28 September 2009 and/or

h) Walter Williams’ diary notes forwarded to the Applicant by Professor Deborah Terry on about 30 October 2009.

2. The Respondent be restrained until the hearing of the Application or further order from terminating the Applicant’s employment.

Background

13 Helpfully, both parties have submitted chronologies of events leading to the filing of the application. A substantial volume of material was also annexed to the affidavit of Ms Jones sworn 16 November 2009. As both Counsel made clear at the hearing, the material annexed to Ms Jones’ affidavit supports to a significant degree the submitted chronologies.

14 Key events leading to the filing of the application by Ms Jones were as follows:

· Ms Jones commenced employment with QTAC on 23 September 2002 pursuant to a five year contract. The contract was renewed for a further five years on 23 September 2007, and is currently due to expire on 22 September 2012.

· From August 2007 until 18 September 2009 the Chair of the Board of QTAC was Mr Colin McAndrew. Mr McAndrew was succeeded in this role by Professor Deborah Terry on 19 September 2009. Professor Terry is currently the Chair of the Board of QTAC.

· QTAC is a company incorporated under the Companies (Qld) Code.

· In February 2009 Ms Jones briefed the staff of QTAC in relation to the commencement of negotiations for a new Enterprise Agreement. On 2 July 2009 the ASU served an Entry Notice to attend a meeting on 7 July 2009.

· On 22 July 2009 QTAC’s offer to staff was posted on the QTAC intranet site and a vote scheduled for 29 July 2009. The ASU lodged an Urgent Dispute Notification with Fair Work Australia on 28 July 2009. The following day Fair Work Australia ordered the ballot to be stopped and negotiations with the ASU to occur.

· The first Enterprise Agreement bargaining meeting occurred on 4 August 2009 with the ASU in attendance.

· On 7 August 2009 the ASU wrote to Ms Jones making a range of allegations against her. On the same day the ASU also wrote to Mr McAndrew asking that the appointment of Ms Jones as the representative of QTAC in the Enterprise Agreement negotiations be reconsidered, raising complaints against her, and seeking the appointment of an independent investigator.

· On 7 August 2009 QTAC received a complaint from Ms Nicola Bowes, a staff member of QTAC. On 10 August 2009 Ms Jones was informed that Ms Bowes had been appointed the ASU delegate.

· On 11 and 12 August 2009 QTAC received anonymous complaints against Ms Jones (which complaints were delivered to QTAC by way of the ASU).

· On 13 August 2009 QTAC received a complaint from staff member Danelle Bayley concerning Ms Jones.

· On 14 August 2009 the ASU wrote again to QTAC referencing the Nicola Bowes complaint, and noting that more complaints in relation to Ms Jones were expected.

· Further Enterprise Agreement bargaining meetings were held on 11, 13, 14, 19, 26 August 2009, 2 and 9 September 2009 involving Ms Jones on behalf of QTAC.

· On 18 August 2009 Mr McAndrew wrote to the ASU confirming that Ms Jones would continue to represent QTAC in the Enterprise Agreement negotiations.

· On 25 August 2009 the ASU wrote to QTAC regarding the complaints made against Ms Jones. The ASU expressed concerns at QTAC’s lack of response to previous correspondence, and noted possible legal action if QTAC took no action to address issues concerning Ms Jones.

· On 28 August 2009 Mr McAndrew wrote to the ASU, stating that he intended to appoint an independent person to inquire into the allegations made concerning Ms Jones.

· On 23 September 2009 the staff vote occurred in relation to QTAC’s Enterprise Agreement, with 83% of staff voting in favour.

· On 28 September 2009 the “Report on Grievances against CEO, QTAC, Prepared for Chair of QTAC” was provided to QTAC by Carol Watson (“the Carol Watson report”).

· Ms Jones met with Mr McAndrew and Professor Terry on 13 October 2009 to discuss the Carol Watson report, and was instructed not to discuss matters which were the subject of the report with any staff member.

· On 20 October 2009 Ms Jones’ solicitors, Cooper Grace Ward, wrote to Professor Terry responding to the Carol Watson report on behalf of Ms Jones.

· QTAC confirmed in writing to Ms Jones on 29 October 2009 that it had no concerns in relation to Ms Jones’ conduct of the Enterprise Agreement negotiations.

· On 30 October 2009 Professor Terry wrote to Cooper Grace Ward listing further new allegations and enclosing a schedule of relevant entries from the diary notes of Walter Williams, the company secretary of QTAC, which entries referred to Ms Jones.

· On 3 November 2009 Professor Terry emailed Ms Jones informing her that, in order to permit Ms Jones time to respond to allegations against her, the QTAC Board meeting (which would require preparation of papers by Ms Jones) would be postponed.

· On 4 November 2009 Ms Jones distributed a staff survey to QTAC staff. The following day Professor Terry wrote to Cooper Grace Ward raising allegations concerning the survey. On 6 November 2009 QTAC informed staff that they were not required to answer the survey.

· On 11 November 2009 Cooper Grace Ward provided a further written response to QTAC on behalf of Ms Jones containing very detailed comments, including with respect to allegations made in the Carol Watson report and the involvement of the ASU in the process.

· On 16 November 2009 QTAC wrote to Ms Jones, informing her that a meeting of the members of QTAC would take place on 17 November 2009 to resolve the matter.

· On 16 November 2009 Ms Jones filed an application in the Federal Court.

Issue 1 – Is there a serious question to be tried as to the plaintiff’s entitlement to relief?

15 It is clear that the question whether there is a serious question to be tried imports the obligation of the applicant to establish a prima facie case for permanent relief as explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]. There, their Honours said the establishment of a prima facie case in this context meant it was sufficient for the plaintiff to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights the plaintiff asserts, and the practical consequences likely to flow from the order sought (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622).

16 In these proceedings there are essentially two limbs to Ms Jones’ claim that there is a serious question to be tried as to her entitlement to relief. These limbs reflect the causes of action identified in the statement of claim. The first limb concerns Ms Jones’ claim that she has been the subject of adverse action in relation to a workplace right under the FW Act. The second limb concerns Ms Jones’ claim that QTAC has acted in breach of the terms and conditions of her employment contract.

Is there a serious question to be tried as to whether QTAC has taken adverse action against Ms Jones within the meaning of the FW Act?

17 In summary, the case submitted by Ms Jones as to the existence of a serious question to be tried can be summarised as follows:

· Section 340(1) of the FW Act provides that a person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right.

· A “workplace right” means, inter alia, that a person 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 (s 341(1)(a)), or is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b)).

· “Adverse action” is taken by an employer against an employee if, inter alia, the employer dismisses the employee, or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice (s 342(1) Item 1). Threatening to take such action also constitutes adverse action (s 342(2)).

· Ms Jones’ workplace right was in respect of either:

o her role or responsibility in negotiating the Enterprise Agreement on behalf of QTAC: s 341(1)(a); or

o her participation in the process of making an Enterprise Agreement: s 341(1)(b).

· In relation to Ms Jones’ participation in the process of making an Enterprise Agreement:

o Ms Jones had a role as a “bargaining representative” of QTAC for the purposes of the Enterprise Agreement negotiations;

o so far as relevant s 176 of the FW Act provides that:

a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement. (s 176(1)(d))

o in a letter to the ASU dated 18 July 2009, Mr McAndrew said that the QTAC Board had confirmed that Ms Jones would continue to be QTAC’s “bargaining representative”.

· QTAC has taken, and is proposing to take, adverse action against Ms Jones because she has exercised a workplace right, in that:

o adverse action has already been taken by QTAC in relation to the commissioning and conduct of the Carol Watson report, and informing QTAC staff of the report;

o QTAC proposes to take adverse action in that it threatens to terminate or otherwise discipline Ms Jones because of the view QTAC takes of the Carol Watson report and the various complaints.

18 At the hearing QTAC argued very strongly that Ms Jones did not have a “workplace right” under s 340 of the FW Act. In summary, QTAC submitted:

· It appears to be Ms Jones’ case that a workplace right vests in her pursuant to s 341(1)(a) of the FW Act because she had a role as QTAC’s “bargaining representative” in the Enterprise Agreement negotiations.

· However the categories of bargaining representatives for an employer for the purposes of s 176 of the FW Act are either the employer itself or a person appointed in writing by the employer.

· Ms Jones is neither the employer nor a person appointed in writing as QTAC’s bargaining representative. Rather, Ms Jones acted on behalf of QTAC as its agent as a natural part of her role as Chief Executive Officer. QTAC as employer remained the bargaining representative for the purposes of the FW Act.

· It follows that Ms Jones does not have a “workplace right” under s 340 of the FW Act.

19 QTAC’s submissions are powerful and persuasive. However notwithstanding those submissions, in my view there is a serious question to be tried in respect of whether QTAC has taken and proposes to take adverse action against Ms Jones because she has exercised a workplace right. I form this view for the following reasons.

20 1. First, I accept the submissions of Mr Spry that, if QTAC is correct in its contention that Ms Jones was an agent of QTAC rather than its bargaining representative notwithstanding correspondence from the Chairman of the Board of QTAC identifying Ms Jones as such, it follows as a general proposition that chief executive officers or indeed executives of employer corporations would also be unable to claim the status of bargaining representative and, accordingly, entitlement to a workplace right, in similar circumstances. While it is quite possible that this is the outcome of the legislative scheme as urged by Mr Murdoch SC for QTAC, I consider that this is not an issue to be determined at an interlocutory stage of proceedings.

21 2. Second, as I have already noted, in a letter of 18 August 2009 to the ASU, Mr McAndrew stated that the Board had confirmed Ms Jones as QTAC’s “bargaining representative”. Mr Murdoch SC submitted that this reference to Ms Jones’ position was in fact loose language on the part of Mr McAndrew. This may very well be the case. However in the absence of evidence from Mr McAndrew capable of being tested I am not prepared to draw this inference. Indeed, such evidence as is currently before the Court suggests that Mr McAndrew was using the term “bargaining representative” deliberately – I note, for example, a letter from Mr McAndrew to the ASU of 28 August 2009 where he noted that “Dr Bowes appointed the ASU as her bargaining representative on 10 July” and made reference to “the 4 August meeting of bargaining representatives”. In my view the facts are such that Ms Jones has demonstrated by reference to this correspondence a sufficient likelihood of success in relation to her contention that she had been appointed QTAC’s bargaining representative for the purposes of the FW Act.

22 3. Third, I take this view concerning Ms Jones’ position as the QTAC bargaining representative notwithstanding Mr Murdoch SC’s persuasive submission that s 178 of the FW Act requires a formal appointment of a bargaining representative. For the purposes of this interlocutory application it is by no means clear that a formal instrument of appointment as distinct from an informal instrument of appointment – such as reference to an appointment in a letter – is required. Again, in my view such a serious issue is not suitable for determination at an interlocutory stage of the proceedings.

23 4. Fourth, I am persuaded that the commencement of an investigation into the allegations against Ms Jones and the commissioning of the Carol Watson report arguably constituted “adverse action” for the purposes of the FW Act. In particular, I note:

· Observations of North J in Kimpton v Minister for Education (1996) 65 IR 317 at 319 where his Honour said:

I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. This is not to say that there is not force in the arguments put by Dr Jessup. Those arguments should, however, be resolved at the trial of the proceeding when the matter can be determined after comprehensive argument and in the light of all the evidence available at the trial.

· Observations of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 at [89] where his Honour said in the course of delivering judgment in respect of an application for an interlocutory injunction:

I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee’s employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven… The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven.

24 I note that a contrary view was expressed by Ryan J in Police Federation of Australia v Nixon (2008) 168 FCR 340 where his Honour observed that the resumption of an investigation into certain allegations against a senior police officer did not amount to an alteration of the officer’s position because “alteration” in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Specifically, his Honour found that:

Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. (at [45])

25 Mr Spry drew my attention to further comments of his Honour in Nixon (2008) 168 FCR 340 at [48], namely:

I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantages enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores…

26 In highlighting these comments of Ryan J in Nixon (2008) 168 FCR 340, Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage.

27 In this case Ms Jones has established at least a sufficient likelihood of success in claiming that the commencement of the investigation by QTAC and the subsequent conduct of the investigation were prejudicial or disadvantageous to her position as an employee. Not only had QTAC commissioned an investigation by a third party into complaints and allegations against Ms Jones in circumstances where such complaints and allegations included anonymous complaints or, in the case of allegations by Mr Williams, were allegedly driven by motives relevant to his own position, but QTAC on 6 November 2009 informed all staff of the existence of the Carol Watson report and that it intended to respond to it. While QTAC did not specifically identify Ms Jones as the subject of the report, in my view the focus of the report would have been well-known to QTAC staff. Such publicity is invariably capable of damaging the reputation of an employee or adversely affecting her standing in the organisation (cf comments of Ryan J in Nixon (2008) 168 FCR 340 at [42]-[43]).

28 5. Fifth, in her letter to Ms Jones dated 29 October 2009, Professor Terry responded in detail to issues raised in correspondence from Cooper Grace Ward on behalf of Ms Jones and concluded:

Allegations

Having considered the investigator's report and your response to that report, QTAC believes there is evidence that you have acted in a way which amounts to bullying or harassment of employees. If established, QTAC believes the conduct may amount to serious misconduct or misconduct for the purposes of your employment contract, such that QTAC is in a position to terminate your employment either summarily or on notice.

The allegations are set out conveniently in the findings in the investigator’s report as clarified in this correspondence and supplemented by the matters recorded in Mr William’s diary entries. The diary entries (maintained by Mr Williams) contain a number of specific examples of conduct. If the events occurred in the manner recorded by Mr Williams, QTAC would consider many of them to be unacceptable.

29 As is clear from the affidavit of Professor Terry sworn 18 November 2009 (paras 23-25), a meeting of the members of QTAC was proposed to make a decision concerning Ms Jones’ employment based on the Carol Watson report and Ms Jones’ responses to that report. Indeed a meeting was scheduled to take place on 17 November 2009 but postponed because of the commencement of these proceedings.

30 In my view Ms Jones has established a prima facie case that this correspondence, and the proposed meeting, constituted threats to terminate Ms Jones’ employment, which in itself is adverse action pursuant to s 342(2) of the FW Act.

31 6. Finally, I note:

· Ms Jones’ employment record over a period of seven years;

· her role in the Enterprise Agreement negotiations;

· the timing of the allegations against Ms Jones, being contemporaneous with her participation in the Enterprise Agreement negotiations;

· the identity of the complainants, including the ASU;

· the timing and conduct of the investigation, being contemporaneous with the Enterprise Agreement negotiations and complaints to QTAC by the ASU; and

· the actions of QTAC subsequent to the receipt of the Carol Watson report including informing staff it its existence and notification of QTAC’s intention to act upon the report.

32 In light of these factors in my view Ms Jones has a sufficient likelihood of success in establishing her claims that adverse action taken or proposed to be taken by QTAC was because of her participation in the Enterprise Agreement negotiations, and, on the assumption (yet to be tested) that this was a workplace right, in breach of the FW Act.

33 I consider that, in respect of Ms Jones’ claims pursuant to the FW Act, there is a serious question to be tried which, if resolved in Ms Jones’ favour, would entitle her to final relief.

Is there a serious question to be tried as to whether QTAC has breached its contract with Ms Jones?

34 Ms Jones submits, in summary, that:

· In accordance with her terms and conditions of employment, QTAC cannot terminate her employment without first determining whether she has committed any act of serious misconduct, or misconduct, and this has not happened.

· The investigator in the Carol Watson report wrongly made findings concerning employees’ perceptions.

· It is implied from cl 15.2 and cl 15.3 of her terms and conditions of employment that Ms Jones is entitled to natural justice in any determination of serious misconduct or misconduct, and this has not occurred.

35 In her Statement of Claim Ms Jones pleaded as follows:

8. Pursuant to clause 15.1 of the employment contract, the Applicant’s employment will end on 22 September 2012, unless terminated earlier in accordance with clause 15.

9. Pursuant to clause 15.2 of the employment contract, the Applicant’s employment may be terminated summarily if she commits any act of serious misconduct as determined by the Respondent and as defined in clause 15.2.

10. Pursuant to clause 15.3 (a) of the employment contract, the Applicant’s employment may be terminated on three (3) months’ notice for unsatisfactory performance or misconduct.

11. It is an implied term of the employment contract that the Respondent will not terminate the Applicant’s employment pursuant to clause 15.2 or 15.3(a) of the employment contract without reliably or properly determining whether the Applicant committed any act of serious misconduct or been guilty of unsatisfactory performance or misconduct.

12. In breach of the implied term pleaded in paragraph [11] herein, the Respondent has failed or refused to reliably or properly determine whether the Applicant committed any act of serious misconduct or been guilty of unsatisfactory performance or misconduct.

PARTICULARS

(a) The Applicant repeats and relies on the particulars pleaded in paragraph [4] herein;

(b) the Respondent failed to accord the Applicant natural justice.

13. As a consequence of the Respondent’s breach of contract as pleaded herein, the Applicant has suffered loss and damage.

36 Ms Jones’ terms and conditions of employment were annexed to her affidavit. For the purposes of the hearing, the key provision in these terms and conditions was cl 15 which provides as follows:

15 Termination of employment

15.1 Termination on expiry of term

Your employment will end on 22 September 2012, unless terminated earlier in accordance with this clause.

15.2 Summary termination

QTAC may at any time immediately terminate your employment by giving written notice to you if you commit any act of serious misconduct as determined by QTAC.

For the purposes of this clause, serious misconduct includes but is not limited to:

a) Significant incompetence or inefficiency in the performance of your duties;

b) Wilful or gross neglect or gross negligence in the performance of your responsibilities;

c) A significant breach of a QTAC policy or procedure;

d) Failing or refusing to comply with any lawful direction given by QTAC;

e) Use of alcohol or narcotics while engaged in the performance of your duties with the exception of non excessive alcohol consumption at designated functions;

f) Any act of dishonesty or fraud in the course of or in connection with the performance of your duties;

g) Conviction of a criminal offence, which in the opinion of QTAC, will detrimentally affect QTAC;

h) Committing any act (whether in the course of the employment or not) which in the reasonable opinion of QTAC brings you into disrepute or may cause serious damage to the reputation of yourself, the QTAC Board, or any QTAC Group company, or otherwise affect adversely the interests of QTAC or any QTAC Group company; and

i) Being precluded by the provisions of the Corporations Act 2001 (Cth) From taking part in the management of a corporation, or being disqualified for any reason from holding an office of QTAC or of a QTAC Group company.

If you are summarily terminated you will not be provided with any payment other than the payment of any accrued entitlements owing to you at the time of termination.

15.3 Termination by QTAC on notice

Without limiting clause 15.2, QTAC may terminate your employment at any time:

a) For unsatisfactory performance or misconduct, by giving you three months’ written notice; or

b) For any other reason, or for no reason, by:

i. Giving you three months written notice; and

ii. By paying you an amount equivalent to your TR for the remaining unexpired period of the Term after the three month notice period.

QTAC may provide payment in lieu of all or part of the notice periods referred to in clauses (a) and (b) above.

…

15.6 Disciplinary and grievance procedures

In view of the seniority of your position, QTAC is not required to follow any performance review, disciplinary, warning or grievance procedures before terminating your employment.

37 In my view there are a number of fundamental flaws associated with this aspect of Ms Jones’ claim for interlocutory relief.

38 1. First, the employment of Ms Jones has not been terminated. It was clear at the hearing that Ms Jones anticipates the board of QTAC making a decision to terminate her employment, perhaps realistically in the circumstances. However to date this has not occurred. Accordingly it is premature for Ms Jones to submit in terms of her contract of employment that QTAC cannot terminate her employment without first determining whether she has committed any act of serious misconduct or misconduct and that she is entitled to natural justice in any event. These are contentions that would properly be made in response to such a decision by QTAC, assuming such a decision is made.

39 2. Second, although Mr Spry submitted at the hearing that QTAC acted contrary to natural justice in respect of the Carol Watson report because Ms Jones should have been given an opportunity to respond to allegations against her before the investigator finalised the report (TS p 71 ll 21-47), I am unable to see how, in the absence of termination of Ms Jones’ employment, QTAC has acted in breach of the contract of employment. While QTAC’s conduct in relation to the Carol Watson report may be “adverse action” for the purposes of the FW Act, it does not appear that the commissioning of the report or convening a meeting of QTAC to consider the report constituted a breach of contract with Ms Jones. It certainly does not appear to constitute a breach of cl 15 of the terms and conditions of employment in circumstances where Ms Jones’ employment has not been terminated.

40 3. Third, as Mr Murdoch SC correctly submitted, the relevant terms and conditions permit termination by QTAC of Ms Jones’ employment by three months written notice at any time, for any reason whatsoever or for no reason whatsoever. Such provisions are difficult to reconcile with a contention that Ms Jones is entitled to natural justice in respect of a decision to terminate her employment.

41 4. Fourth, although Mr Spry for Ms Jones urged that the contract of employment should be interpreted as implying a term requiring QTAC to accord natural justice to Ms Jones in connection with any determination of serious misconduct or misconduct by Ms Jones, such an implied term is difficult to reconcile with cl 15.6 which specifically provides that QTAC is not required to follow grievance or other procedures in view of the seniority of Ms Jones’ position. The Court does not lightly imply terms into a contract which the parties have not thought fit to express. As observed by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, in order for a term to be implied the following conditions must be satisfied:

1. it must be reasonable and equitable;

2. it must necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;

3. it must be so obvious “it goes without saying”;

4. it must be capable of clear expression; and

5. it must not contradict any express terms of the contract.

42 It is clear from the decision of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 that the same considerations apply in respect of the implication of terms into contracts of employment.

43 In light of the detailed terms of cl 15, which provides for different grounds of termination and associated periods of notice, and a specific provision in cl 15.6 excluding review procedures in respect of Ms Jones’ employment, it is difficult to see how the implication of term importing the rules of natural justice into the terms and conditions of employment can be justified on any of the conditions described in BP Refinery (1977) 180 CLR 266. Certainly there is clear authority to the contrary – the House of Lords held in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 that, absent statutory intervention, there is no rule at common law that the requirements of natural justice are incorporated into the employment relationship (per Lord Reid at 1581F-G, Lord Morris of Borth-y-Gest at 1586F and 1588D, Lord Guest at 1593G-H, Lord Wilberforce at 1595E).

44 I agree with the submissions of QTAC that Ms Jones’ terms and conditions of employment constitute a comprehensive and considered document, and that this is not a case where the parties have left substantial terms to be determined by implication.

45 5. Fifth, although Mr Spry submitted that the Court cannot separate the contractual arguments from Ms Jones’ statutory rights under the FW Act (TS p 73 ll 4-5), in my view the Court can and should do so in this case. Indeed Ms Jones in her Statement of Claim separates the arguments, in that two separate causes of action are pleaded.

46 6. Finally, I am not persuaded on the basis of the material before me that, even if QTAC was required to accord natural justice to Ms Jones in relation to the investigator’s report, QTAC has failed to do so. A considerable volume of material is in evidence including repeated invitations from QTAC to Ms Jones and her solicitors to respond to allegations, and examples of detailed responses by Ms Jones. On such evidence as is before me at this stage, it appears that QTAC has been at pains to ensure that Ms Jones has been provided with every opportunity to communicate with the QTAC in respect of the investigators report. It is not obvious to me that Ms Jones has been denied procedural fairness. I also note in passing that Ms Jones does not contend that QTAC is biased in respect of making decisions concerning her employment (TS p 62 ll 38-41).

47 In these circumstances I am not persuaded that Ms Jones has demonstrated a sufficient likelihood of success in respect of her claim concerning alleged breach of contract by QTAC to justify the preservation of the status quo pending the trial. I do not think that there is a serious question to be tried in respect of this issue.

Issue 2 – is Ms Jones likely to suffer injury for which damages will not be an adequate remedy?

48 Ms Jones submits that QTAC proposes to take adverse action against her within the meaning of the FW Act in that there is a clear prospect that she will be terminated or otherwise disciplined by QTAC based on the Carol Watson report and various allegations and complaints.

49 On the basis that Ms Jones would suffer an injury from this course of action, I consider that damages would not provide an adequate remedy. Discipline of a chief executive officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view it is likely that such a course of conduct would have a detrimental effect on Ms Jones’ reputation and impose a stigma which could adversely affect her future career prospects (cf comments of Young J in Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 at [29]).

Issue 3 – does the balance of convenience favour the granting of an interlocutory injunction?

50 In relation to this issue, Ms Jones submitted in summary that:

· The impact on her reputation and career of QTAC taking action against her in reliance upon the investigator’s report, and the various complaints and allegations, are very serious.

· She should be entitled to have the allegations against her properly and fairly investigated.

· If an interlocutory injunction is not granted and QTAC proceeds to terminate Ms Jones’ employment, this application becomes otiose. Ms Jones would be required to commence proceedings in Fair Work Australia.

· QTAC will, in practical terms, have succeeded at the interlocutory stage without a hearing on the merits of Ms Jones’ claim: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [72] (and see also McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536).

· Ms Jones has continued to perform her role professionally since this matter commenced in August 2009. There is no credible evidence before the Court that she will not continue to do so. There is no evidence from any complainant that they will not continue to carry out their duties.

51 In response QTAC submitted that the balance of convenience is strongly in favour of denying the interlocutory relief sought because, in summary:

· QTAC has received cogent evidence that there is a very serious workplace situation which urgently needs to be addressed. The Carol Watson report records allegations made by a large number of staff consistent with behaviour which may be regarded as workplace harassment by Ms Jones. The relief sought by Ms Jones would prevent QTAC from discharging its statutory obligation under the Workplace Health and Safety Act 1995 (Qld) to ensure the safety of its employees at work.

· In any event, QTAC has evidence that there is a high level of anxiety within a significant proportion of its workforce. It is important that QTAC deal with this workplace situation and make a decision which can be communicated to staff.

· QTAC provides an essential function to its member and associated universities, the receipt and processing of entrance applications, and the dispatch of offers of entry into university courses to students. The vast bulk of this work has to be done between now and February 2010. Organisational stability at this time is essential, and it is essential for the workforce not to be distracted by the serious unresolved issues raised in the Carol Watson report.

· Potential damage to QTAC if an injunction is granted would not be readily subject to identification or quantification, although could include damage to the health of other employees, ineffective delivery of QTAC’s essential services to universities and to students, and the possibility of investigation and prosecution of QTAC by officials of Workplace Health and Safety Queensland.

52 The QTAC submissions are, again, well-argued and persuasive. However on balance I am persuaded that the balance of convenience favours the order of the interlocutory injunction sought by Ms Jones. I form this view for the following reasons:

53 1. First, Ms Jones has established that there is a serious question to be tried in respect of the availability of remedies to her under the FW Act. I accept Mr Spry’s submission that Ms Jones has a potential remedy now under this legislation, and that remedy would be lost if the interlocutory injunction were not granted and a decision made by QTAC to discipline Ms Jones, or terminate her employment.

54 2. Second, while I note the serious factors raised by QTAC militating against the grant of an injunction, I note also the serious impact of the events both past and prospective on Ms Jones, her reputation and her future career. In my view it is important that the status quo be preserved pending resolution of the substantive issues in these proceedings.

55 3. Third, while I note the very serious workplace health and safety issues raised by QTAC and QTAC’s genuine concerns with respect to its statutory obligations, I also note that a significant element of Ms Jones’ case is that the investigation process leading to the Carol Watson report was flawed because, inter alia:

· the investigator made findings adverse to Ms Jones when hearsay was the best evidence provided;

· the investigator claimed outcomes on the basis of probability rather than fact;

· the investigator made findings when the claims made had not been put to Ms Jones (affidavit of Elizabeth Louise Jones sworn 16 November 2009 paras 143-145).

56 Issues, unresolved at this stage of the proceedings, include whether the process resulting in the findings of the Carol Watson report was sound, and the extent to which there is a genuine basis to QTAC’s workplace health and safety concerns as identified in its submissions.

57 4. Finally, while I recognise the very important role provided by QTAC both in relation to its member universities and the community, there is no evidence before me that the QTAC workplace is dysfunctional, or that the continuing presence of Ms Jones is so distracting to QTAC staff that the organisation cannot perform its functions at this critical time of the year. While Professor Terry expresses concerns as to possible consequences unless a decision is made quickly in respect of Ms Jones (affidavit of Deborah Terry sworn 18 November 2009 paras 35-38), in my view this is insufficient to overcome the very real and serious potential prejudice to Ms Jones if an interlocutory injunction is not granted.

58 Notwithstanding this view however, I am mindful of QTAC’s legitimate concerns in relation to its workplace environment. The interests of justice would be served by an urgent trial of the substantive issues in these proceedings. Although the Court was prepared to accommodate an accelerated timetable for the hearing of the substantive issues in these proceedings matter this week, one of the parties was not able to meet that deadline. I shall therefore suggest a number of dates to the parties with a view to the matter being heard as quickly as practicable.

59 The applicant gives the usual undertaking as to damages.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 25 November 2009

Counsel for the Applicant:	Mr M Spry

Solicitor for the Applicant:	Cooper Grace Ward

Counsel for the Respondent:	Mr J Murdoch SC

Solicitor for the Respondent:	Minter Ellison

Date of Hearing:	19 November 2009

Date of Judgment:	25 November 2009

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