FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 436

UPON THE RESPONDENT by its counsel undertaking, until the hearing and determination of the Application, or further order, to make payments to the Second Applicant in amounts and at intervals equivalent to the wages that would otherwise have been paid to him had he not been dismissed from his employment.

THE COURT ORDERS THAT:

1.    Order 1 of the interlocutory orders made on 18 February 2014 be discharged.

2.    The Second Applicant be released from the undertakings (d) and (f) given by him to the Court on 18 February 2014.

3.    The Applicant file and serve a Statement of Claim by 22 April 2014.

4.    The Respondent file and serve a Defence by 2 May 2014.

5.    The Applicants and the Respondent give standard discovery by 9 May 2014.

6.    On or before 16 May 2014, the Applicants file and serve a brief outline of evidence for each witness they intend to call to give evidence at trial.

7.    On or before 23 May 2014, the Respondent file and serve a brief outline of evidence for each witness it intend to call to give evidence at trial.

8.    The proceeding be listed for trial for 2 weeks commencing on 23 June 2014.

9.    There be no orders as to costs.

10.    Liberty to apply.

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

REASONS FOR JUDGMENT

1    On 18 February 2014, the Court ordered that the second applicant, Mr Mark Anthony Johnston, be reinstated as a straddle driver by his employer, DP World Melbourne Limited, the respondent (DP).

2    The circumstances in which the issue arose are set out in the reasons for judgment delivered on that day: Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 134.

3    At the initial hearing, DP argued against the application for Mr Johnston’s reinstatement on grounds including that to do so would further increase tension in the workplace and would likely result in further harassment and intimidation of Ms Coombe and Ms Bowker. DP argued that the prejudice to Ms Coombe and Ms Bowker was an important factor in assessing the balance of convenience on the injunction application.

4    The assessment of the balance of convenience was not an easy matter for judgment. The risk of further harassment and intimidation was serious. In the end, the scale tipped slightly in favour of reinstatement because of the personal impact on Mr Johnston of being excluded from work in the months during which the case is being prepared for trial, and then the time of the trial occurring.

5    When making the reinstatement order, the Court made it clear that if DP’s fears of further harassment and intimidation turned out to be well-founded, then it could return to the Court to argue that the order for reinstatement should be discharged. Paragraph 25 of the reasons for judgment delivered on 18 February 2014 stated:

It must be stressed that DP or any other interested person can return to the Court at any time and present an argument that Mr Johnston’s reinstatement has in fact resulted in harassment, intimidation or bullying. If that is established, the Court will have no hesitation in discharging the order.

6    The Court hoped and expected that anyone tempted to engage in harassment and intimidation would think twice, knowing that to do so would mean that Mr Johnston would lose the right to attend for work until the case is finalised.

7     DP now says that the reinstatement order should be discharged. It argues that the very misconduct that the order was intended to stop has occurred.

8    On 6 March 2014, the words, “I will not forget cunts” and “I will remember this cunts” were scrawled on a table where Ms Bowker and Mr Zwarts normally sat. Then, on either 9 or 10 March 2014, the words “I’ve never given anyone up in my life” were found written behind a door in the refuel area. Later, on 10 March 2014, Mr Zwarts collected a pair of overalls from his pigeonhole in the amenities building. The words “Give up dog fuckhead” were hand-written in marker under his embroidered name.

9    The applicants argue that the reinstatement order should not be discharged. They say that Mr Johnston denies that he was involved in the events in any way, and that there was no evidence of more recent harassment or intimidation. Further, DP made no immediate report of the misconduct to the first applicant even though there was opportunity to do so at meetings about other matters held between the two parties, and the events which occurred between 6 and 10 March 2014 had occurred some time ago. These arguments are largely beside the point.

10    In the course of the argument on this application, the Court observed that the applicants provided no evidence that they had taken any steps to investigate the events of 6 to 10 March 2014, or to seek to prevent their recurrence. The Court noted that such evidence might have been important to their argument to leave the reinstatement order in place. The parties were notified on 3 April 2014 that judgment would be delivered today, 4 April 2014.

11    On 3 April 2014, the applicants filed an application to reopen their case in order to rely on an affidavit sworn by Mr Kevin Bracken on 3 April 2014. The affidavit sought to address the issue identified by the Court of what steps had been taken by the applicants to inform the workplace of the need to avoid harassment and intimidation. In view of the events which have transpired, this evidence falls far short of the evidence which would justify leaving the reinstatement order in place. Consequently, it would be futile to allow the applicants to reopen their case for this purpose. The application is therefore refused.

12    The essential condition on which the reinstatement order was made, as was advised to the workforce, was that there would be a cessation of harassment and intimidation of Ms Coombe and Ms Bowker. The hope and expectation of the Court has not been fulfilled. Consequently, the reinstatement order is discharged.

13    Mr Johnston is no longer permitted, by an order of the Court, to return to the workplace. Those people responsible for the events of 6 to 10 March 2014 are directly responsible for depriving Mr Johnston of the benefit of returning to work, as he wished to do.

14    As this conclusion does not depend on the affidavit of Ms Kristina Marie Vermey sworn on 26 March 2014, it is unnecessary to resolve the evidentiary arguments which were raised concerning the admission of this affidavit into evidence.

15    The Court retains the power to reinstate Mr Johnson pending trial. All parties would be best served if Mr Johnston were reinstated, provided that the harassment and intimidation in the workplace ceased. The fact that the incidents of harassment described above took place some time ago becomes relevant here. If those responsible for the incidents were to come forward and explain their actions, if there had been no further incident, and if the applicants persuaded the Court that they had taken timely and genuine attempts to prevent a recurrence, the circumstances may then justify further consideration of the matter.

Associate: