FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001

OTHER MATTERS:

Upon the first respondent, by its counsel, undertaking that:

(a)    it will direct the second applicant to attend an interview as part of the investigation at 9.00am on Tuesday 16 August 2011 at 53 Charles Street, North Coburg;

(b)    it will allow the second applicant to have one support person of his choosing in the interview referred to in subparagraph (a) above;

(c)    it will finalise its investigation and notify the applicants of the outcome of the investigation by 11.00am on Thursday 18 August 2011;

(d)    it will not implement or apply any disciplinary outcome of the investigation (if any) before 2.00pm on Monday 22 August 2011;

(e)    in the event that before 2.00pm on Monday 22 August 2011, the applicants (or either of them) file and serve an interlocutory application to restrain the implementation or application of any disciplinary outcome of the investigation (if any), it will not, whether by itself or through its servants or agents, implement or apply that disciplinary outcome until the hearing and determination of that interlocutory application,

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is dismissed.

2.    By 4.00pm on Friday 9 September 2011, the applicants file and serve a statement of claim.

3.    By 4.00pm on Friday 7 October 2011, the respondents file and serve a defence.

4.    By 4.00pm on Friday 21 October 2011, the applicants file and serve any reply.

5.    The matter be listed for directions on the first available date in November 2011.

6.    The parties have liberty to apply on short notice.

7.    Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    On 12 August 2011, I made the orders set out above dismissing an application for interlocutory relief upon the undertakings of the respondents. The reasons for those orders are set out below.

2    The applicants, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”) and Jonathan Philip Zwart, by an application dated 11 August 2011 pursuant to s 340 of the Fair Work Act 2009 (Cth) (“the Act”) and ss 21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth), sought interlocutory relief against the respondents, Visy Packaging Pty Ltd (“Visy”), Tony Scott and Robin Street, as follows:

1    An order that pending the hearing and determination of this proceeding, or further order of the Court, the first respondent be restrained, by itself, its servants or agents, from further investigating the first applicant’s conduct on or about 5 August 2011.

2    An order that pending the hearing and determination of this proceeding, or further order of the Court, the first respondent be restrained, by itself, its servants or agents, from continuing the suspension of the first applicant from his work which commenced on or about 8 August 2011.

3    The final relief sought is as follows:

1.    A declaration that the first respondent has, by instituting an investigation into the conduct of the second applicant, contravened s340 of the Act by injuring him in his employment or altering his position to his prejudice because he has exercised a workplace right on or about 5 August 2011.

2.    A declaration that the first respondent has, by suspending the second applicant from his work on 8 August 2011, contravened s340 of the Act by injuring him in his employment or altering his position to his prejudice because he has exercised a workplace right on or about 5 August 2011.

3.    A declaration that the second respondent is a person involved in the contraventions referred to in paragraphs 1 and 2 above within the meaning of s550 of the Act and is thereby taken to have contravened s340 of the Act in the same way as set out in paragraphs 1 and 2 above.

4.    A declaration that the third respondent is a person involved in the contraventions referred to in paragraphs 1 and 2 above within the meaning of s550 of the Act and is thereby taken to have contravened s340 of the Act in the same way as set out in paragraphs 1 and 2 above.

5.    The imposition of penalties on the first respondent in respect of the contraventions referred to in paragraphs 1 and 2 above.

6.    The imposition of penalties on the second respondent in respect of the contraventions referred to in paragraphs 1 and 2 above.

7.    The imposition of penalties on the third respondent in respect of the contraventions referred to in paragraphs 1 and 2 above.

8.    An order pursuant to s546(3)(b) of the Act that any penalties be paid to the first applicant.

9.    An order that the first respondent be restrained, by itself, its servants or agents, from engaging in any disciplinary action or further inquiry in relation to the applicant's conduct on or about 5 August 2011.

10.    An injunction that the first respondent be restrained, by itself, its servants or agents, from suspending the applicant from his work.

11.    Such further or other orders as to the Court seem appropriate.

4    The application was supported by the affidavit of Jonathan Philip Zwart sworn 11 August 2011 and written submissions dated 12 August 2011. The application was opposed by the first respondent, Visy, which relied on the affidavit of Anthony Scott affirmed on 12 August 2011 and written submissions dated 12 August 2011.

The evidence

Evidence of Mr Zwart

5    Mr Zwart is currently employed by Visy as a machine setter, maintaining and repairing the machines on the production lines in the Automatic Press Section Department (“APS Department”) at the Visy plant at Coburg.

6    He is, and has been for many years, a member of the AMWU, which is a registered employee organisation. Since May 2003, he has been a delegate of the AMWU and is now the head delegate at the plant.

7    Mr Zwart commenced employment with Visy’s predecessor, Southcorp Packaging Pty Ltd, in 1988 and (save for a year without pay in 2002 to 2003) has remained in continuous employment since Visy took over in about February 2001.

8    In 2009, Mr Zwart was elected a health and safety representative (“HSR”) under the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”) following a ballot. He undertook a five day course for the role and has recently undertaken refresher training.

9    Mr Scott, the second respondent, is the production manager at the Visy plant. Mr Street, the third respondent, is the Operations Manager – Coburg Food and Beverage, to whom Mr Scott reports.

10    In June 2011, Visy announced a new safety policy and workers were informed that the site had “an atrocious safety record” and a “Tough on Safety” policy would be implemented.

11    Mr Zwart deposed that on 5 August 2011, at 8.00am, he noticed a reversing forklift that was not beeping, prepared an internal hazard report and left it in Mr Scott’s in-tray. He considered that the non-beeping forklift constituted an immediate safety risk to workers and pedestrians, and should not be operated. Mr Zwart told Denis Radic, the forklift operator, not to operate the forklift in accordance with Visy’s Standard Operating Procedure dated 1 February 2011, placed a “danger, do not operate” sign on the forklift and removed its key. He returned the key to the operator shortly after to allow him to park the forklift out of the way.

12    At 10.00am, when Mr Zwart discussed the problem with Mr Scott and Mr Radic, Mr Radic said that all the forklifts had the same problem. When a forklift was brought in from another section at Mr Scott’s behest, and Mr Radic reversed it, it too failed to beep loudly, although it was audible to Mr Scott until more noise drowned it out. According to Mr Zwart, Mr Scott did not object when he tagged the second forklift and took its key.

13    A third forklift from another area with a satisfactorily audible beeper was used until 11.00am, when it was returned to its own department.

14    Shortly after midday, Mr Zwart was summoned to a meeting in the production office with Mr Scott, Mr Flanagan (a senior manager from the Materials Separation Department), Ms Tyler-Meers (the OHS officer) and Mr Renehan, a WorkSafe inspector.

15    Mr Zwart deposed that Mr Renehan questioned him about his role, training and powers as an HSR. When Mr Zwart informed Mr Renehan about the inaudible reversing beepers and the steps he had taken, Mr Renehan queried whether the situation had required Mr Zwart to direct cessation of work. Mr Zwart responded he had not done so, but had simply identified and tagged faulty and dangerous equipment.

16    Mr Zwart deposed that he then sought representation and assistance from the union and after an interval, at a resumed meeting attended by the same people, Mr Renehan again alleged that Mr Zwart had directed a cessation of work, which Mr Zwart denied. According to Mr Zwart, work had not ceased and all production machinery was operating.

17    Mr Zwart deposed that after he resumed work at 2.00pm, Mr Renehan apologised for his approach at the interview. Mr Zwart observed that Mr Renehan at no stage inspected the forklifts.

18    At 3.30pm, Mr Scott asked Mr Zwart to inspect the forklifts which by then had been serviced, and were working satisfactorily.

19    On the following Monday at 11.00am, Ms Tyler-Meers handed Mr Zwart a WorkSafe Inspector’s report which relevantly stated:

In accordance with section 75 of the Occupational Health and Safety Act 2004 (The Act), and at the request of Robin Street, I attended the workplace to enquire into a direction to cease work made by the health and safety representative in accordance with section 74 of The Act.

The details of which are: Two Nissan forklifts tagged out due to having inaudible reversing beepers in the Auto Press Section.

During my visit, I met with the above and held extensive discussions as well as being accompanied on an inspection of the forklifts and the work area.

I was advised that the forklifts have been operating in the area for approximately 2 years. There have been no recorded incidents/ near misses in relation to the reversing beepers. There are 4 identical forklifts on site with no similar issues being raised. A hazard report was completed at 8.00am stating 'Reversing beeper on APS forklift not audible'. The issue was discussed with the team leader at the time who was also the operator of the forklift.

The company confirmed that hearing protectors are required in the area. Wearing of hearing protectors may lessen an employee's ability to hear warning devices such as the reversing beeper. The company have implemented a number of measures to control the risk associated with forklifts colliding with pedestrians such as physical barriers, 3 metre separation distances and dedicated and marked walkways. I was advised that the forklift is used approximately 30% of the shift time.

Mr Zwart confirmed that he is the elected HSR. He believes that this is an immediate risk however believes that he has not issued a work cessation as he used the company tag out procedure. He believes there are a number of area [sic] that pose a risk of forklifts colliding with pedestrians. Mr Zwart reiterated that he was acting as a concerned employee rather than HSR.

Mr Zwart chose to have a lunch break and not to take part in my inspection when I sought to ask some further questions and undertake an inspection of the affected area of the workplace.

I reviewed operation of Nissan forklifts:

1- Model MCUG1F2F56DU, serial no 9R0738

2- Model MCUG1F2F35DU, serial no 9R0743

I was wearing my hearing protectors and observed that when the forklifts were placed in reverse the reversing beepers were barely audible. I observed that both forklifts had operating flashing lights, horns and reversing lights. Forklift no 1 had a reversing light that did not operate.

The company advised that Adapt a Lift, the forklift service provider for the site has been contacted and were due to attend to review the reversing beeper operation.

On the basis that the company have implemented a number of control measures to reduce the risk associated with forklift colliding with pedestrians and in my opinion there was no immediate risk I allowed the company to operate the forklifts, as an interim [sic], with the requirement that operators operate the horn when reversing.

20    At 3.00pm, Mr Zwart was summoned to a meeting with Messrs Scott, Flanagan and a union delegate, Mr Prassad, whose presence Mr Zwart had requested.

21    Mr Zwart deposed:

Scott advised me that there were a number of issues about which they needed to speak to me and investigate including a failure to follow process, an investigation following the WorkSafe Inspector's report, the company's trust and confidence in the context of how I had acted in relation to the inaudible reversing forklift beepers and a further issue of an alleged failure by me to report near misses.

I was given a letter signed by Street, by which I suspended [sic] on full pay and I was told that a meeting would be held with me within a few days. Scott said I was able to bring a support person and that I would get a letter in relation to this meeting within 24 hours.

The letter handed to Mr Zwart stated:

Dear Jon

Suspension on Pay pending Performance Management Investigation

Further to our discussion today, I confirm that you are suspended on pay pending further investigation of allegations under Visy's Performance Management Policy in relation to the tagging out of 2 forklifts by you on 5th August 2011.

The following matters are alleged against you arising out of those events:

•    failure to use appropriate dispute resolution procedures

•    lying, and

•    breach of trust and confidence.

Please note that these allegations are serious and if proven may warrant summary dismissal.

While on suspension you are to remain contactable during business hours and we will contact you shortly to arrange a meeting to give you an opportunity to respond to these allegations. We also encourage you to have a support person present at this meeting. That support may be a colleague, a friend or union delegate.

Please be advised you are directed not to attend the site or discuss this matter with anyone without prior authorisation while these allegations are being investigated. All circumstances relating to this matter are to remain strictly confidential. Any questions which you may have are to be addressed directly to me.

…

If you have any questions in relation to the above, please do not hesitate to call me…

Yours faithfully

Robin Street

Operations Manager - Coburg Food and Beverage

22    Mr Zwart deposed that he had not been provided with details of the allegations and did not know what was being investigated.

23    He further deposed that:

Being stood down has caused me significant stress. I was the designated health and safety representative for the designated workgroup in the APS. There is no current health and safety representative for that designated work group.

Further, the fact that I have been disciplined and stood down is now well known within the factory and it is embarrassing and stressful to me. The company has raised no concerns about the quality of my work on or about these days.

It is clear that the reversing beeper on the forklifts were inaudible and therefore inadequate and dangerous. Neither Scott nor Radic nor Flanagan raised any objection to anything I did on 5 August. The company has identified no reasons why any investigation into any alleged wrongdoing by me can only proceed whilst I am stood down. I was told by Scott to treat the stand down as a holiday. I do not consider being excluded from my workplace and my work colleagues and friends under a disciplinary cloud arising out of an accepted safety issue to be a holiday.

24    Correspondence ensued between Visy and the solicitors for Mr Zwart. In a letter dated 9 August 2011 addressed to Mr Street, Mr Zwart’s solicitors alleged a breach of the workplace rights provisions of the Act and the anti-discrimination provisions of the OHS Act. The letter required the investigation to be immediately terminated, failing which an injunction would be sought.

25    In response, by a letter dated 10 August 2011, Mr Street stated that Mr Zwart had “nothing to fear” from Visy because of his role as an HSR and asserted that there was no detriment to Mr Zwart in the commencement of the investigation. The letter stated that he and Visy had made no judgment about Mr Zwart in undertaking the investigation, and “actually presume him to have done nothing wrong”.

26    By a letter dated 10 August 2011, Mr Zwart’s solicitors sought that he be reinstated and dealt with under the dispute resolution procedure in the relevant enterprise bargaining agreement, failing which they would apply for an injunction.

Evidence of Mr Scott

27    Mr Scott, the production manager of the site responsible for safety, quality and monitoring improvement, deposed that the forklifts were two of five operating in the area for two years, which had never had a “near miss” or any reported concerns.

28    Employees were required to use a procedure, in place for ten years, for near misses, by filling out a Hazard/Near Miss report. Misuse of the procedure could cause lost production within minutes and hinder the elimination of real hazards.

29    The company trusted employees to use the procedure cooperatively and responsibly and the OHS Issue/Dispute Resolution Procedure required them to attempt to resolve issues within a reasonable time and consider whether temporary measures could be used.

30    Mr Zwart has filled out eight hazard reports but no near miss reports in the last 12 months.

31    Mr Scott deposed that on 5 August 2011, Mr Zwart initially stated that he had locked the forklift because it was unsafe due to the reversing beeper, which was working but too quiet, and would lock other forklifts too if others had the same problem. While the same fleet had been operational for some time, Mr Zwart said he was doing audits that day and had just noticed it. Mr Scott acknowledged that the first forklift’s beeper could be improved although it was in the noisiest part of the site. Mr Zwart tagged that too, stating that it was the company’s problem. There were then no forklifts.

32    Mr Scott contacted the service company, Adapta Lift, which informed him that no Australian standard applied to reversing beepers. He proposed using a horn as a warning device until repairs and checks were done, but that proposal was rejected by Mr Zwart, who insisted that the beepers be fixed. An older forklift from another department was used for a short time, while Mr Street contacted WorkSafe because there was a cessation of work.

33    Mr Scott deposed to the meeting with the WorkSafe inspector, Mr Renehan, who said there need be only one warning device on the forklift, not necessarily a reversing beeper.

34    Mr Zwart asserted there was an immediate danger from the forklifts and maintained that he had seen four near misses although he had not reported them. Mr Zwart denied that he had told anyone to stop work, but his actions had resulted in a cessation.

35    Mr Zwart left the meeting, returned and announced that he was only acting as a concerned employee. He left and returned again. He declined to answer further questions unless a union support person were present, and thus would escort Mr Renehan around the site but on the basis that he would not answer questions. Mr Zwart then “walked out” to lunch.

36    Mr Renehan, Mr Scott and others checked the tagged forklifts and found that the reversing beepers were operative. Mr Renehan approved the removal of the tags to return the forklifts to operation until Adapta Lift modified the beepers to a higher pitch, on condition that the driver sound the horn and keep a look out.

37    After Mr Zwart’s return from lunch, he removed the lock from one forklift and, with Mr Renehan’s approval, Mr Scott removed the tag from the second forklift.

38    Mr Zwart and Tony Psila, another employee of Visy, then talked to Mr Renehan out of ear shot. Mr Renehan left at 3.30pm by which time the beepers had been modified, but may then have been too loud.

39    Mr Scott deposed that Visy was concerned about Mr Zwart’s “apparent serious misconduct” on 5 August 2001, as follows:

(a)    failure to follow the OHS Issue / Dispute Resolution Procedure - particularly in:

i.    causing a cessation of work in circumstances where other appropriate control measures (such as flashing lights and reversing lights) were already in operation;

ii.    failing to co-operate and engage in reasonable discussions about equally reasonable and practicable alternate temporary control measures to ensure business continuity;

iii.    having a seemingly high interest in the APS Department, but with no regard to the other employees elsewhere (but then saying that he was protecting all employees) in circumstances where no other employee on Site had made any complaint about forklifts;

iv.    failing to co-operate with WorkSafe once a cessation of work had occurred; and

v.    failing to report near misses (assuming there were such near misses);

(b)    lying - insofar as:

i.    he said he was initially acting as an OHS Rep and then later changed his story, saying that he was only acting as "a concerned employee"; and

ii.    his claims about near misses in circumstances where none have been reported; and

(c)    loss of trust and confidence - not only as above, but also because of his behaviour in just walking out of meetings and failing to comply with express directions.

40    On 8 August 2011, Mr Scott’s superior, Mr Street, proposed to investigate the alleged serious misconduct and suspend Mr Zwart on full pay in accordance with the company Performance Management Policy. Mr Scott knew that had previously occurred on site and deposed “Mr Street informs me that he was following the normal procedure in this case”.

41    At a meeting at 3.00pm on 8 August 2011 with Mr Flanagan, Mr Zwart and his support person, Mr Scott told Mr Zwart that the following four issues were of concern:

(a)    failure to follow process on 5 August in the locking out of the forklifts;

(b)    the investigation following the WorkSafe Report;

(c)    trust and confidence in relation to the context in which he had acted; and

(d)    failure to report alleged near misses.

Mr Zwart asked me to repeat these allegations and I saw him writing them down. I also directed him to ensure confidentiality to maintain the integrity of the investigation, told him he would receive a letter outlining this and that he was suspended immediately on full pay. I also told him that we will expect him to have a support person. Finally, I requested that he leave the Site in a safe manner.

UNDertakings

42    At the hearing of the application, the first respondent proffered the following undertakings and orders (which were varied slightly during the course of the interlocutory hearing):

Upon the First Respondent, by its counsel, undertaking that:

(a)    it will interview the Second Applicant as part of the investigation at an agreed time and place by 5.00pm on Monday. 15 August 2011;

(b)    it will allow the Second Applicant to have one support person of his choosing in the interview referred to in subparagraph (a) above;

(c)    it will finalise its investigation and notify the Applicants of the outcome of the investigation by 11.00am on Thursday, 18 August 2011;

(d)    it will not implement or apply any disciplinary outcome of the investigation (if any) before 2.00pm on Friday, 19 August 2011;

(e)    in the event that before 2.00pm on Friday 19 August 2011, the Applicants (or either of them) file and serve an interlocutory application to restrain the implementation or application of any disciplinary outcome of the investigation (if any), it will not, whether by itself or through its servants or agents, implement or apply that disciplinary outcome until the hearing and determination of that interlocutory application;

and upon the Second Applicant, by his counsel, undertaking that:

(f)    he will agree to a time and place for, and participate in, the interview referred to in subparagraph (a) above, in accordance with subparagraph (a) above,

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is dismissed.

2.    By 4.00pm on Friday, 9 September 20111 the Applicants file and serve a Statement of Claim.

3.    By 4.00pm on Friday, 7 October 2011, the Respondents file and serve a Defence.

4.    By 4.00pm on Friday, 21 October 2011, the Applicants file and serve any Reply.

5.    The matter be listed for directions on November 2011.

6    The parties have liberty to apply on short notice.

7.    Costs be reserved.

Relevant legal principles

43    Section 340 of the Act relevantly states:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

     (i)    has a workplace right; or

    (ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

44    Section 341 of the Act provides, inter alia, that a person has a workplace right if they are entitled to the benefit of, or have a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (s341(1)(a)).

45    Section 12 of the Act defines “workplace law” to include:

…

any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

46    Section 342 of the Act defines “adverse action” to include, by Item 1, an employer taking action against an employee by dismissing the employee, injuring the employee in his or her employment, altering the position of the employee to the employee’s prejudice, or discriminating between the employee and other employees of the employer. In Patrick Stevedores Operations No 2 Pty Ltd & Ors v MUA (1998) 195 CLR 1 (“Patricks”) at 18, the High Court construed a similar provision in the Workplace Relations Act 1996 (Cth) (which preceded the Act) as follows:

Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

47    This interpretation was applied by the Full Federal Court in CPSU v Telstra Corporation Ltd (2001) 107 FCR 93 (“Telstra”) at 100.

48    The prejudicial alteration in Patricks was reduction in the security of employment resulting from corporate re-organisation. In Telstra, an email sent by the Managing Director of the Employee Relations group to managers, which, inter alia, directed managers to “support the values of the Company’s preferred model of individual employment” when implementing initiatives leading to staff reductions, was held at 100-101 to make the employment of employees on awards or certified agreements less secure, even though no action had been taken as a result of the email.

49    Section 550 of the Act provides that a person is involved in a contravention of a civil remedy provision if, inter alia, they have aided, abetted, counselled or procured the contravention or been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention.

50    Section 361 of the Act provides for a reverse onus of proof where it is alleged that a person took action for a particular reason or with a particular intent in contravention of that Part of the Act, which includes s 340. However, the reverse onus does not apply in relation to orders for an interim injunction (s 361(2)).

51    The court’s powers in the action are set out in s 545 of the Act, including interim injunctions under s 545(2)(a).

52    The principles relevant to the grant of an interlocutory injunction were summarised by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218 (“Jones”) at 220 as follows:

As Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], in all applications for an interlocutory injunction the court will ask whether the plaintiff has shown that:

•    there is a serious question to be tried as to the plaintiff’s entitlement to relief; and

•    the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and

•    the balance of convenience favours the granting of an interlocutory injunction.

As their Honours observed further, these are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed (at [19]).

THE PARTIES’ PRINCIPAL SUBMISSIONS

53    The applicants alleged that there was a strong prima facie case Visy had taken adverse action against Mr Zwart in contravention of s 340(1) of the Act by undertaking the investigation and suspending him, albeit on full pay, because he had exercised a workplace right by his conduct in tagging and halting the forklifts. As the OHS Act is a workplace law which imposes duties on all employees to take reasonable care for the health and safety of themselves and others, it was irrelevant whether Mr Zwart had acted in the capacity of an HSR or that of an ordinary employee.

54    The applicants further submitted that the balance of convenience, to which the strength of their prima facie case was relevant, supported the grant of interlocutory relief.

55    The first respondent did not dispute the applicants had standing to sue under item 11 of the Table in s 539 and s 540 of the Act. Further, they conceded that there was a serious question to be tried but submitted that it was weak, and thereby tipped the balance of convenience in their favour. The first respondent submitted, in that context, that it was unclear whether Mr Zwart exercised a “workplace right”, and if so, of what nature, apparently on the basis of Mr Zwart’s alleged comment that he had acted as a concerned employee.

DISCUSSION

Whether serious question that Mr Zwart has a workplace right

56    As the applicants submitted, under the OHS Act, both employers and employees have a responsibility to provide a safe place of work (s 21 and s 25) and an employee is required, pursuant to s 25, to take reasonable care for his or her own safety and that of persons who may be affected by the employee’s acts or omissions at the workplace. Failure to do so is an offence with a maximum penalty of 1800 penalty units, which equates to $219,852.00 (being $122.14 per unit).

57    Therefore, it appeared that if in tagging and halting the operation of the relevant forklifts, Mr Zwart acted to maintain safety and avert danger, irrespective of whether he acted in the capacity of the HSR or an ordinary employee, he would have entitlement to the benefit of, or a role or responsibility under, a workplace law, and thus a workplace right.

Whether serious question that Visy took adverse action

58    Further, I was satisfied that the commencement of an investigation into allegations of serious misconduct and suspending Mr Zwart from work, albeit on full pay, arguably amounted to adverse action within terms of the Act.

59    In Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319, North J stated:

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.

60    In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, the employees submitted that laying disciplinary charges against them in relation to, inter alia, refusal to remove an offensive sign, inappropriate usage of the email system, and physical violence against another firefighter, was prohibited by s 298K(1) of the Workplace Relations Act 1996 (Cth), and sought interlocutory injunctions.

61    Goldberg J stated (at 491) that:

Although the laying of the charges and the hearing of them itself does not result in a permanent injury to an employee or an alteration of the employees’ position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in [the relevant legislation]…

…

I am satisfied that there is… a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.

62    Goldberg J stated at 490:

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.

63    In contrast, in Police Federation of Australia v Nixon (2008) 168 FCR 340 (“Nixon”), Ryan J did not consider that the resumption of an investigation into certain allegations against a senior police officer amounted to an alteration of the officer’s position, as “alteration” in that context required a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Ryan J stated at 355:

Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change.

64    In Nixon, Ryan J further stated at 355:

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…

65    In Jones, Collier J granted interlocutory relief restraining an employer from taking any action against the applicant employee (including termination of employment) until the hearing of the employee’s substantive application under, inter alia, ss 340 and 545 of the Act, in which she alleged that the employer had taken adverse action against her by injuring her in her employment, including commencing a disciplinary investigation against her without reasonable or adequate cause.

66    Collier J held that there was a serious question to be tried and sufficient likelihood that the applicant would successfully establish her claim that adverse action was taken, or proposed to be taken, in breach of the Act due to her participation in enterprise agreement negotiations, and that this was a workplace right.

67    Her Honour stated at 226:

    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.

68    In Jones, Collier J also held that there was a prima facie case that the investigation constituted adverse action, albeit not established to be other than in good faith, where: the employer commissioned a third party report into complaints and allegations about the applicant, including anonymous complaints; the investigation was made known to staff, albeit the applicant was not specifically identified; and the publicity was capable of damaging her reputation and standing in the organisation. Further, the applicant’s dismissal was threatened, which was itself adverse action.

69    The applicant in Jones was an employee of some years’ standing, had played a role in enterprise agreement negotiations and the timing of the allegations was contemporaneous with her participation therein.

70    The authorities, while not entirely consistent, thus indicate that an investigation may, but will not necessarily, constitute adverse action, depending on the circumstances of the case. If, for example, it is not a disciplinary investigation, will not result in a penalty or other disadvantage without further notice or some further step, or a charge is brought in good faith and does not entail a substantive change in, or reduction of, advantages enjoyed in the relevant capacity, and is not publicised by the employer, it is less likely to amount to adverse action.

71    In the present case, before me, Visy characterised the investigation to which Mr Zwart was subject as factual in nature rather than disciplinary. That assertion was contrary to the suggestion in Visy’s letter of 8 August 2011 that immediate dismissal may result. Visy’s further letter dated 10 August 2011 implicitly retracted that prospect, and from the materials filed, submissions made and undertakings proffered by Visy at the hearing, it is now clear that the investigation will not result in any direct or immediate consequence to Mr Zwart, such as dismissal, which would only occur (if deemed appropriate) following a further disciplinary investigation in which Mr Zwart will be afforded an opportunity to respond.

72    Mr Zwart is nevertheless an employee of very long standing, who has engaged in the role of HSR. The allegations which led to the investigation and his suspension arose in direct relation to, and contemporaneously with, his conduct in relation to the safety of equipment, although the nature of his conduct is disputed and the allegations extend to conduct prior to the incident. Mr Zwart has deposed that his suspension, although on full pay, is apparent in the workplace, emotionally upsetting and capable of damaging his standing and reputation. I was therefore satisfied that the applicants had a substantial prima facie case that, and raised a serious question to be tried as to whether, Visy took adverse action against Mr Zwart in contravention of the Act.

Whether balance of convenience favours grant of interlocutory relief

73    It was, however, necessary to address the balance of convenience. Contrary to the first respondent’s submissions, the applicants’ prima facie case was not, in my view, very weak, thereby requiring a more compelling case in relation to the balance of convenience. Had Mr Zwart been vulnerable to immediate dismissal or other irreversible detriment without further notice, been subject to a disciplinary investigation of long or indefinite duration, or had he been suspended without pay, such matters would, alone or in combination, tend to weigh in favour of interlocutory relief.

74    Nevertheless, the balance of convenience was affected by the first respondent’s proffered undertakings promptly to offer Mr Zwart an interview, to conclude the factual investigation and determine its outcome in under one week, and to refrain from implementing any outcome until the determination of any further resultant interlocutory application by the applicants. The first respondent did not undertake to terminate either its investigation or Mr Zwart’s suspension and its undertakings were predicated on Mr Zwart undertaking to attend an interview. Mr Zwart was unwilling so to undertake, unless his suspension were terminated and he were permitted to return to work pending the completion of the investigation.

75    The sole issue ultimately in dispute on the interlocutory hearing was thus Mr Zwart’s continued suspension on full pay.

76    The applicants submitted, in that context, that even at the interlocutory stage, the court should conclude that the investigation was actuated by an ulterior purpose and Mr Zwart’s suspension was not warranted, as the matters alleged against him in the letter of 8 August 2011 were vague and did not satisfy the requirements of procedural fairness for allegations of serious misconduct contained in Visy’s Performance Management Policy. Visy’s letter of 8 August 2011 thus did not contain “serious allegations” in a substantive sense.

77    Further, in the applicants’ submission, the matters referred to in Mr Scott’s affidavit (extracted above at [39]), were, while more detailed than in the letter of 8 August 2011, spurious, weak and lacking in substance, thereby indicating that standing down the employee, even on full pay, was a drastic and unwarranted overreaction, not in substance supported by the company’s promulgated policy. Both Mr Zwart and his fellow employees would suffer detriment as a result of his suspension, as he was the HSR officer whose presence promoted safety and was arguably a legal requirement under s 54 of the OHS Act.

78    The first respondent, while conceding a weak prima facie case, submitted that the balance of convenience did not favour the grant of relief because, if granted, it would be tantamount to final relief. The investigation and/or suspension of Mr Zwart would be delayed until after the trial, which may not conclude for many months, by which time the factual investigation antecedent to, and wider than, any resultant disciplinary investigation would be stale, although it also related to a series of alleged unreported near misses potentially posing danger to employees and others and thus required prompt investigation. The injunction sought was also of mandatory character, which should be taken into account.

79    In the final form of undertaking offered by the first respondent, the interview (if Mr Zwart would participate) would occur promptly, on Tuesday, 16 August 2011; Mr Zwart could be supported by a person of his choice; the investigation would be finalised by Thursday, 18 August 2011; the first respondent would not implement or apply any disciplinary outcome of the investigation before Monday, 22 August 2011; and if the applicants filed an application to restrain the implementation of any outcome, the first respondent would not implement or apply that outcome until that interlocutory application were determined.

80    The first respondent advanced evidence (as yet untested) that the facts supported that the factual investigation was in good faith and had wider goals than investigating the conduct of Mr Zwart, including the safety of others.

81    There was also evidence that a stand down on full pay during an investigation of allegations of serious misconduct was a normal procedure employed by Visy in order, inter alia, to “insulate” the person being investigated. In all the circumstances of this application, the invocation of that procedure, particularly for a brief period, did not require elaborate justification. Mr Scott, in any event, deposed to aspects of Mr Zwart’s conduct which indicated that his presence could disrupt the investigatory process.

82    Mr Scott had also deposed to the measures which sufficiently addressed the safety issues in the workplace during Mr Zwart’s absence from the workplace. Nor was I persuaded that his presence was necessary to comply with s 54 of the OHS Act.

83    The applicants’ complaint of the vagueness of the allegations in Visy’s letter of 8 August 2011 were in my view well founded, although they were clarified by the materials filed in the proceeding.

84    Mr Zwart deposed, and I accept, that his suspension was stressful and could affect his standing in the workplace, as it was generally known (albeit that Mr Scott maintained that the first respondent did not publicise the fact). However, in light of the undertaking offered by the first respondent, the detriment to Mr Zwart would be short lived, until, within a matter of days, the investigation was completed; he would not be left in uncertainty for a long or indefinite period, nor would any outcome be implemented or penalty be imposed until the investigation was complete and he had an opportunity to respond and to challenge it in court.

85    Accordingly, although Mr Zwart declined to undertake to attend the interview proposed by the first respondent, I considered it appropriate to dismiss the application for interlocutory relief on the first respondent giving the undertakings referred to above.

Associate:

Dated:    12 August 2011