FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2014] FCA 522

SUBJECT TO THE USUAL UNDERTAKINGS AS TO DAMAGES BY THE APPLICANT THE COURT ORDERS THAT:

1.    Until the hearing and determination of this application, or further order, the Respondent reinstate Stephen Byrne to his former employment on the same terms and conditions that applied prior to 12 May 2014.

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

REASONS FOR JUDGMENT

1    Before the Court is an application in which the applicant seeks interlocutory relief in respect of the dismissal of Mr Stephen Byrne. Mr Byrne was until recently employed by the respondent to work at the Dawson mine near Moura in Central Queensland (“the mine”).

2    Mr Byrne's employment was terminated on 12 May 2014. In the substantive originating application filed on 14 May 2014 the applicant claims that the termination of Mr Byrne's employment was effected for reasons prohibited by Pt 3-1 of the Fair Work Act 2009 (Cth) (“FW Act”). Specifically, the respondent is alleged to have contravened ss 340, 346, and 352 of the FW Act.

3    By way of interlocutory relief the applicant also claims:

1.    An order that until the hearing and determination of this application, or further order, the Respondent reinstate Stephen Byrne to his former employment on the same terms and conditions that applied prior to 12 May 2014

2.    Such further or other orders as the Court considers appropriate.

Issue before the Court

4    It is not in dispute that the Court is empowered to make the interlocutory orders sought by the applicant. Section 545 of the FW Act empowers the Court to make orders including with respect to reinstatement. Principles explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (in particular at 68, 81-84) provide guidance in respect of whether interlocutory relief ought be granted. So, in this case the applicant must demonstrate that:

    there is a serious question to be tried as to the applicant's entitlement to relief; and

    the applicant 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.

5    In this case the respondent concedes that the applicant has a sufficiently arguable case in respect of some of its claims for substantive relief to justify the interlocutory relief it seeks. However the respondent contends that the balance of convenience lies against the grant of interlocutory relief sought by the applicant. To support this contention, as an alternative to the grant of interlocutory orders reinstating Mr Byrne to his position pending determination of the substantive application, the respondent has proposed an undertaking in the following terms:

6    Until further order, and without any admissions,

(i)    the respondent will make ex gratia payments to Stephen Byrne in such amounts, and at such intervals, as he would have been paid on account of salary, allowances and other payments prescribed by the Dawson mines Collective Enterprise Agreement 2014 (Enterprise Agreement) if he had remained an employee of the respondent on and after 12 May 2014, net of income tax deductions, and will make superannuation contributions on his behalf in accordance with clause 2.7.6 of the Enterprise Agreement on the same basis; and

(ii)    the respondent will keep records of all leave and other entitlements that Stephen Byrne would have accrued, or to which he would have become entitled, if he had remained an employee of the respondent on and after 12 May 2014.

7    It is clear that resolution of the balance of convenience is pivotal to the determination of the interlocutory application before the Court, and is the real issue for consideration by me in the current proceeding.

8    Before turning to matters relevant to this issue however it is useful to set out relevant background material.

Evidence before the Court

9    Both parties have filed a number of affidavits in this proceeding. The evidence filed on behalf of the applicant is extensive compared with that filed on behalf of the respondent. Although the respondent has filed three affidavits (two sworn by Ms Rebecca Taumalolo, an employee relations specialist employed by the respondent, and one sworn by Ms Shannon Chapman, a solicitor acting on behalf of the respondent), it does not appear to be in dispute that the affidavits of Ms Taumalolo did not go to the questions before the Court in relation to the interlocutory application (T, 20 May 2014, p 3, ls 9-29).

Evidence filed by the applicant

10    The applicant has filed three affidavits upon which it relies in this proceeding. They are:

    the affidavit of Mr Graeme Thompson, an employee of the respondent, sworn 14 May 2014;

    the affidavit of Mr Stephen Byrne sworn 14 May 2014; and

    the affidavit of Dr Vahid Farahmand sworn 14 May 2014.

Affidavit of Graeme Thompson

11    In his affidavit sworn 14 May 2014 Mr Thompson deposes, in summary, as follows:

    He is a colleague of Mr Byrne at the mine and an employee of the respondent.

    He is a member of the applicant union.

    As part of his employment at the mine he was directed to attend a meeting with the respondent on 22 April 2014. He appointed Mr Byrne as his representative and support person for that meeting, which he and Mr Byrne attended together.

    The meeting was attended by Ms Amanda Baker (the respondent's Human Resources Manager for the mine) and a representative of the respondent known as "Hutchie".

    For the first 20 or 30 minutes of the meeting Mr Byrne was coughing, sniffling, wheezing and appeared sick.

    Towards the end of the meeting, after about 20 or 30 minutes of discussion, Ms Baker told Mr Byrne that he was ill and should go home. Mr Byrne said that he could complete the balance of his shift but could not work the following night shift.

    Ms Baker advised Mr Byrne to seek medical advice as he appeared ill.

    Mr Byrne completed office duties for the balance of his shift.

    Mr Byrne did not attend the night shift he was next rostered to work.

Affidavit of Stephen Byrne

12    In his affidavit sworn 14 May 2014 Mr Byrne deposes (in summary) that:

    he commenced employment with the respondent at the mine on 1 August 2011;

    he is a member of the applicant union;

    in May 2012 he became a shift delegate for his crew;

    in November 2012 he was elected to the position of Lodge President at the mine;

    between April 2013 and November 2013 enterprise agreement negotiations took place between the respondent, the applicant union, the Australian Manufacturing Workers' Union (AMWU) and the Electrical Trades Union (ETU) for a replacement enterprise agreement. He and Mr Glenn Power led the negotiations on behalf of the CFMEU;

    shortly after a proposed agreement was voted down by union members, the applicant union and other unions applied for a Protected Action Ballot. The Fair Work Commission made an order that a Protected Action Ballot be conducted;

    Union members voted in favour of taking protected industrial action;

    shortly after employees at the mine took protected action in the form of a 12 hour "stop work" the respondent put a revised offer to the union negotiators. The proposed agreement was narrowly approved by the workforce;

    he suffers from severe asthma and has advised the respondent, through its various representatives, on numerous occasions, of his medical condition;

    on 20 April 2013, while at his home, he decided to clean his oven using a cleaner containing caustic soda. Whilst cleaning he began having difficulty breathing, and felt unwell;

    for some time after he had finished cleaning the oven he did not feel well and had difficulty breathing. He was unable to sleep throughout the evening due to difficulty breathing. In the early hours of 21 April 2013 his wife called an ambulance to take him to hospital. While in the ambulance on the way to the Rockhampton hospital the ambulance officers twice provided him with adrenalin to assist him to breathe;

    he was in the intensive care unit at Rockhampton hospital for three days, and then remained in hospital until 27 April 2013;

    while in hospital his wife contacted his then supervisor Mr Ben O'Donnell and later Mr Troy Deeth. His wife advised the respondent of what had happened to him and that he expected to be in hospital and absent from work for some period. His wife also made an application for annual leave for the period in which he was absent. The application was granted;

    at the mine it is not uncommon for employees who are unwell to apply for annual leave rather than taking sick leave. This is because each year the respondent company allows workers to cash out their untaken sick leave. Employees are not permitted to cash out their untaken annual leave;

    he is also aware that unplanned absenteeism is a performance metric which is measured by the company. As a consequence he and his colleagues endeavour to take annual leave when sick so as to improve the rates of unplanned absenteeism;

    in the week commencing 21 April 2014 his shifts were as follows:

             Monday 21 April - day shift.

            Tuesday 22 April - day shift.

            Wednesday 23 April - "pyjama day" (shift change day).

            Thursday 24 April - night shift (commencing 6.45 pm on 23 April).

            Friday 25 April - night shift (commencing at 6.45 pm on 24 April).

    On Monday 21 April 2014 he was suffering the symptoms of a head cold. He had been suffering these symptoms for several days without improvement. He became concerned about the night shifts for which he was rostered on the Thursday and Friday of that week as the weather was cold at the time. Typically, cold night air can exacerbate his head colds and asthma because the head cold had started to "turn into a chest cold", causing him to cough. He therefore decided to approach his supervisor Mr Gavin Horn.

    He advised his supervisor that he was not feeling well and that he did not think it was a good idea to work the two night shifts. He then asked his supervisor if it would be possible to tale annual leave on those two nights. Later in the shift the supervisor returned to him and advised that his request for annual leave had been refused.

    At the start of his shift on 22 April 2014, he approached the superintendent Mr Andrew Lawn and asked for a reason why his annual leave request was refused. A conversation took place between he and Mr Lawn about the leave quota. He explained that the annual leave was sought due to his feeling ill, to which Mr Lawn advised that there would be ramifications for not coming in.

    Over the course of the shift he began to feel more ill.

    At 3 pm he had a meeting with Ms Amanda Baker, the Human Resources Manager, and Mr Graeme Thompson. During the course of the meeting Ms Baker stated that he did not look well and asked if he was all right. Mr Byrne stated that he was not feeling well, had a head cold that he could not shake, and thought he would need Thursday and Friday of that week off as he was concerned about working a night shift and did not want a repeat of the events of April 2013.

    Ms Baker advised that he should go home. Mr Byrne stated that he would finish that shift.

    At about midday on 23 April 2014 he left the camp to return to his home in Gracemere, approximately two and a half hours from the mine. He attended upon Dr Farahmand at about 3 pm on that day. Dr Farahmand advised that he should not attend work on Thursday and Friday evening, and prescribed some antibiotics for him to take. Dr Farahmand also issued him with a certificate certifying that he was unfit for duty on Thursday and Friday of that week.

    At about 4.45 pm he telephoned his supervisor Mr Gurney and advised he was unfit and would not be attending work for the night shifts on Thursday and Friday of that week.

    Shortly after this time he became concerned that the wording of the medical certificate made it appear as though he would never be fit for work again. He sent a text message to Ms Baker to advise that he was unwell and would not be attending work. During the text message exchange, he raised his concern about the medical certificate and Ms Baker confirmed it should be corrected.

    On 24 April 2014 and 25 April 2014 he stayed at home and did not attend work.

    On Tuesday 29 April 2014 he attended upon Dr Farahmand again to see whether he would be fit for his next shift on 30 April 2014. Dr Farahmand examined him and determined that he was fit to return to work. Because of his concerns with the initial medical certificate he requested that that Dr Farahmand provide him with a medical certificate stating that he was fit to return to work. Dr Farahmand did this.

    On Wednesday 30 April 2014 he returned to work as rostered and participated in a return to work interview with his supervisor, Mr Russell Gurney. He provided Mr Gurney with a copy of his medical certificates and advised him that he was now feeling better. Mr Gurney directed him to return to work as per normal.

    At approximately 2 pm on Wednesday 22 April 2014 he was advised to attend a meeting with Mr Lawn and Ms Kaitlyn Britton, the Human Resources Officer. (It is not clear to me whether Mr Byrne actually means Wednesday 30 April 2014) Mr Lawn stated that it was an issue that he took sick leave after his application for annual leave was refused. Mr Lawn handed him a letter advising that he had been stood down on full pay pending an investigation.

    He then left the mine in accordance with the letter.

    On 1 May 2014 he was required to attend a further meeting with Mr Lawn. He attended this meeting with the Lodge Secretary, Mr Heath Timmins.

    At the commencement of the meeting Mr Lawn handed him a piece of correspondence from the respondent under the hand of Mr Aaron Puna, the General Manager. The correspondence advised that the respondent considered that he had engaged in misconduct and asked him to show cause as to why disciplinary action should not be taken against him.

    The correspondent sought a response by 5 May 2014. A return date of 9 May 2014 was subsequently agreed.

    On 9 May 2014 he attended a meeting with Mr Tony Power, the mine Operations Manager, and Ms Baker. Mr Heath Timmins attended as his representative.

    Mr Power advised that the purpose of the meeting was for him to provide a response to the show cause correspondence.

    He (Mr Byrne) read out a response and provided Mr Power and Ms Baker with a copy.

    After he had provided the response, Ms Baker advised that she did not agree with specific parts of his response but did not specify which parts. After stating that Ms Baker saw him on Tuesday and knew he was sick, Ms Baker stated that she did not know he had previously applied for annual leave.

    On 12 May 2014 he was required to attend a meeting with Mr Power, Ms Lead Brosnan and Ms Kaitlin Britton.

    Mr Power advised that the respondent had decided to terminate his employment and provided correspondence to that effect.

    He is married with two children aged 10 and 13.

    He is the sole source of income for his family apart from a carer's allowance that his wife receives each fortnight from Centrelink of $118. This is due to the fact his 13-year old son is a special needs child and his wife is therefore required to care for him and is unable to work.

    He has a number of debts which require repayments of $1,100 per week, being:

           two car loans - total debt of approximately $100,000;

           a home loan - total debt of approximately $298,000; and

           a credit card - total debt of approximately $20,000.

    He is also responsible for his family's household expenses on a weekly basis including groceries, petrol, power bills and recreational expenses.

    If he does not regain employment with the respondent he will be unable to support his family in the ways set out above.

    He has worked in the coal mining industry in Queensland since 1993 and considers himself a career coal miner. If he is not able to resume his vocation soon he is concerned he will not be able to obtain other work elsewhere because he is not qualified for any other work.

    He would miss the camaraderie of working at the mine.

    The 326 members of the Moura Lodge who work at the Dawson mine are supported and represented by himself as President, Heath Timmins as Lodge Secretary and two others who are each Lodge Vice Presidents. He is the only representative from D crew.

    He cannot perform his role as Lodge President or as the applicant's delegate for D crew unless he is employed at the mine.

    If he is not reinstated it would make it very difficult for the Lodge to adequately represent that applicant's members at the mine. This is particularly so because it is difficult for the applicant to attract and retain Lodge Officials for fear of retribution from the respondent.

Affidavit of Dr Vahid Farahmand

13    In his affidavit sworn 14 May 2014, Dr Farahmand deposes that:

    He is a general medical practitioner. He holds a Bachelor of Medicine (MBBS) and has been qualified and working since 1993.

    He is Mr Byrne's treating practitioner.

    On 23 April 2014 Mr Byrne attended upon him at his practice at Gracemere. He observed that Mr Byrne had symptoms which were compatible with asthma exacerbation and a lower respiratory tract infection. He assessed Mr Byrne as being unfit for the duties of his employment as a coal miner for the period from 23 April 2014 until 25 April 2014. He instructed Mr Byrne to use Serotide for his asthma and prescribed antibiotics for the respiratory infection.

    He asked Mr Byrne to attend upon him again on 29 April 2014 so that he could assess his symptoms and determine whether he was fit to return to work.

    On 29 April 2014 Mr Byrne attended his practice at Gracemere. He observed that Mr Byrne's symptoms had ceased and assessed Mr Byrne as being fit for the duties of his employment.

    He made all appropriate enquiries in reaching the conclusions outlined.

Evidence filed by the respondent

14    The letter dated 20 May 2014 annexed to the affidavit of Ms Chapman was the subject of submissions by Counsel for both parties before me. It constitutes correspondence from the respondent’s solicitors, Ashurst, to the solicitors for the applicant, and is as follows:

We refer to your client's claim for interlocutory relief that is to be heard later today.

At that hearing, our client will:

1.    accept, for the purposes of your client's claim for interlocutory relief, that your client has a sufficiently arguable case as to some of its claims for substantive relief to justify the interlocutory relief that it seeks;

2.    not submit that the balance of convenience is decisively against a grant of the interlocutory relief that your client seeks;

3.    submit that compensation under section 545 (2)(e) of the Fair Work Act 2009 (Cth) (Act) is an adequate remedy, such that the interlocutory relief that your client seeks should not be granted;

4.    state to the Court that it will take all reasonable steps to ensure that your client's claim for substantive relief can be heard at the earliest convenient date; and

5.    offer an undertaking to the Court to the following effect in lieu of the interlocutory relief that your client seeks:

Until further order, and without any admissions,

(i)    the respondent will make ex gratia payments to Stephen Byrne in such amounts, and at such intervals, as he would have been paid on account of salary, allowances and other payments prescribed by the Dawson mines Collective Enterprise Agreement 2014 (Enterprise Agreement) if he had remained an employee of the respondent on and after 12 May 2014, net of income tax deductions, and will make superannuation contributions on his behalf in accordance with clause 2.7.6 of the Enterprise Agreement on the same basis; and

(ii)    the respondent will keep records of all leave and other entitlements that Stephen Byrne would have accrued, or to which he would have become entitled, if he had remained an employee of the respondent on and after 12 May 2014.

As your client and Mr Byrne will be aware, the annualised remuneration prescribed by the Enterprise Agreement and our client's forward rostering arrangements at the Dawson Mine are such that the shifts that Mr Byrne would have worked if he had remained an employee of the respondent on and after 12 May 2014 can readily be ascertained for the foreseeable future, with the result that the amounts payable to Mr Byrne under (i) of the undertaking will be precisely the same as he would have received in his hand if he had continued to be employed by the respondent and performed his ordinary work.

Our client notes that your client's argument that Mr Byrne needs to be in employment in order to discharge his functions as an Employee Representative under the Enterprise Agreement and President of the Dawson Mine Lodge. However, in the ordinary course, functions of that kind are to be performed outside ordinary working hours in any event. Moreover, as your client is aware, there are four other members of the Executive of the Dawson Mine Lodge apart from Mr Byrne, and three other delegates of your client, all of whom are employees of the respondent and capable of representing the Lodge and its members.

If, contrary to the foregoing, an interlocutory order reinstating Mr Byrne is made, then our client will immediately direct Mr Byrne that, pending further direction, or an order of the Court, he is not to attend at, or enter, the Dawson Mine for any purpose, including the performance of work or the discharge of any function as an Employee Representative or as President of the Dawson Mine Lodge. If such a direction is made, it will be accompanied by express assurances to the same effect as the undertaking set out above.

We invite your client to consider whether it will consent to the disposition of its claim for interlocutory relief in accordance with paragraphs 4 and 5 of this letter.

15    At the hearing Mr Neil SC for the respondent took me to a copy of the letter by which the respondent terminated Mr Byrne's employment, annexed to the first affidavit of Ms Taumalolo sworn 19 May 2014. This letter was dated 12 May 2014, and was signed by Tony Power, Mining Operations Manager of the respondent. It read as follows:

Termination of Employment

You attended a meeting with Dawson Mine Management ('the Company') representatives on 9 May 2014 to show cause why your employment with the Company should not be terminated in relation to your misconduct.

We have now taken into consideration your response. It is the Company's position that your behaviour is unacceptable. Steve, you made it clear that regardless of the Company's rejection of your leave application, you would not be in attendance for your rostered shifts and you then did not subsequently attend your rostered shifts.

The Company considers that your conduct is in breach of your terms and conditions of employment and has irreparably damaged and undermined the employment relationship.

Given the seriousness of your misconduct, the Company has decided to terminate your employment at Dawson Mine effective immediately. You will be paid one week in lieu of notice and all entitlements owing. Your termination pay will be transferred within seven (7) business working days.

The Company will continue to allow you to access to the Employee Assistance Program… for a period of one month.

Substantive claims

16    In addition to the interlocutory relief sought, the applicant claims the following contraventions of the FW Act in its originating application:

    the applicant alleges that the respondent contravened s 340 of the FW Act by:

           threatening adverse action against Mr Byrne for proposing to take personal leave; and

           terminating Mr Byrne's employment because he had and/or had exercised and/or had proposed to exercise a workplace right, namely the taking of personal leave on 23 April 2014 and 24 April 2014.

    The applicant alleges that the respondent contravened s 346 by terminating Mr Byrne's employment because he had engaged in industrial activity.

    The applicant alleges that the respondent contravened s 352 by terminating Mr Byrne's employment because he was temporarily absent from work because of illness or injury on 23 April 2014 and 24 April 2014.

The case of the applicant

17    In respect of the question where the balance of convenience lies, Mr White for the applicant submitted, in summary, as follows:

    The apparent strength of the parties' substantive cases is an important consideration to be weighed in determining the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257; [2011] FCAFC 156. In this case the applicant has a strong prima facie case for interlocutory relief.

    There was no real evidence produced by the respondent to the Court as to the reason for Mr Byrne's dismissal, or supporting the respondent's claim of inconvenience to it should Mr Byrne be reinstated, or supporting the respondent's claim that the employment relationship had been ruptured. It is highly significant that no evidence has been put on by the decision-maker in this matter - indeed adverse inferences can be drawn in relation to this absence of evidence.

    Psychological issues relevant to the social benefits to employees of the workplace environment are factors the Court is entitled to take into account. Mr Byrne has given evidence of the importance of workplace camaraderie and his work to him. There is ample Federal Court authority to this effect.

    The Court has indicated that the trial of the substantive application can take place at the end of July 2014. However it is not realistic to say that therefore Mr Byrne will only be deprived of the social benefits of his workplace for 10 weeks because:

           The benefits of work are not measurable by time; and

           It is likely that the Court will need to reserve judgment and therefore more than 10 weeks will elapse before the matter is finally determined.

    Mr Byrne is the elected lodge President at the mine, and is required to attend at the mine in order to discharge some of the duties related to that role. It is not to the point that other union delegates can discharge some of Mr Byrne's union-related functions. To that extent both he and the applicant would be inconvenienced if he were not reinstated.

    The Court ought not be deterred from granting an interlocutory order for reinstatement by the respondent's stated intention to direct Mr Byrne not to attend work.

The case of the respondent

18    In opposing any order for reinstatement of Mr Byrne, Mr Neil SC for the respondent submitted, in summary, as follows:

    There is evidence before the Court as to the reason for Mr Byrne's termination, namely the letter annexed to the affidavit of Ms Taumalolo.

    In the ordinary course, Mr Byrne's reinstatement, following upon his dismissal on the ground of misconduct, would naturally have a tendency to undermine discipline at the mine by reference to the capacity of the respondent to enforce its own rules and its conception of the conduct that it requires of its employees.

    Dismissal of Mr Byrne for misconduct must necessarily have damaged, if not severed, the relationship of trust and confidence between the respondent as employer and Mr Byrne as employee.

    Any financial hardship to Mr Byrne pending final determination of the substantive application would be avoided by payment of equivalent salary and benefits by the respondent to him pursuant to the undertaking the respondent has offered in lieu of reinstatement.

    Although Mr Byrne holds the office of the applicant's lodge President at the mine, there was no impediment to him continuing to hold that position if he were not reinstated. Further there were other elected union officers who could discharge union duties at the mine.

    To the extent that there was an inconvenience to the applicant in respect of Mr Byrne's position as the only union delegate in D crew should he not be reinstated, the respondent was prepared to transfer another union delegate to D crew.

    Mr Byrne's desire to enjoy the social environment provided by his workplace is a relevant, but not decisive, factor.

    As it is likely that a trial of the substantive proceedings could take place at the end of July 2014, Mr Byrne would be out of the workplace for only approximately 10 weeks leading up to trial. This would be only minimally disruptive of any social benefits he receives from the workplace.

    Even if the Court were minded to reinstate Mr Byrne, it could only be to a position no less favourable than that in which he was employed prior to the termination of his employment. The respondent is empowered by the Dawson Mines Collective Enterprise Agreement 2014 to stand down employees, including Mr Byrne. More relevantly, it is entitled to direct Mr Byrne not to attend work, and it has already put Mr Byrne on notice that it would so direct him if he were reinstated.

    If there was a likelihood of judgment in the substantive matter being reserved there is no reason the applicant could not either renew the present application for interlocutory relief or make a fresh application at the trial.

Consideration

19    In this case I am persuaded that the balance of convenience favours the grant of the interlocutory relief sought by the applicant. I have formed this view for the following reasons.

20    First, the evidence before the Court is supportive of the applicant's submissions concerning the social and psychological benefits of his work to Mr Byrne (in particular paras 84 and 85 of his affidavit). As the applicant correctly submits, there is ample authority supporting the relevance of this evidence. I note for example the comment of Moore J in Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Eaton Electrical Systems Pty Ltd (2005) 139 IR 260 at 266:

While important, employment is more than a means of gaining income. To varying degrees it has a greater significance. It provides a social context for daily activity and can provide satisfaction and stimulation.

21    More recently Logan J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971 at [29] observed:

I also take into account the psychological impact which must necessarily attend the absence from the workplace, occasioned by idleness as a result of the termination, in circumstances where there is a serious question to be tried in respect of that termination.

22    Second, while the respondent has offered generous financial compensation to Mr Byrne in lieu of reinstatement pending determination of the substantive proceedings, so far as concerns the balance of convenience in this case, I consider this to be a neutral point because if Mr Byrne is entitled to reinstatement (as claimed by the applicant) he is entitled to be paid his salary in any event. To paraphrase comments by Logan J in BHP Coal at [29] in relation to a similar offer was made by the employer, the potential psychological effects on Mr Byrne should he not be reinstated would be partially ameliorated by the respondent's offer but not completely ameliorated in terms of the overall effect on him.

23    Third, I accept the submission of the applicant that the strength of the prima facie case for substantive relief is a factor to take into consideration in determining where lies the balance of convenience. The Full Court in Samsung at [67] noted:

As Sundberg J observed in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339 at [15] (p 342), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd [2009] FCA 595; (1995) 32 IPR 405 at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd [2003] FCA 496; (2003) 57 IPR 1 at [31] (p 10) per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218; (2005) 66 IPR 325 at [18] (p 329) per Stone J; and Castlemaine Tooheys at 154 per Mason ACJ.

24    In this case the respondent has already conceded that there is a serious case to be tried on at least some of the allegations that are made against it, such as would be sufficient to justify the interlocutory relief that the applicant seeks. In my view the respondent’s concession of the strength of aspects of the applicant's case provides some support for the applicant's claim that the balance of convenience favours it in respect of the relief sought.

25    Fourth, I am not persuaded by the submission on behalf of the respondent that an order for reinstatement of Mr Byrne would tend to undermine discipline at the mine. There is absolutely no evidence before the Court to support this submission and in the absence of evidence I am not prepared to draw this inference on the basis of a bare assertion by the respondent.

26    Fifth, I am not persuaded by the submission on behalf of the respondent that an order for reinstatement of Mr Byrne would inconvenience the respondent because there has been a breakdown in the employment relationship of trust and confidence between the parties. Again there is absolutely no evidence to support this submission, merely a bare assertion by the respondent's Counsel. Further, as I put to Counsel for the respondent during the hearing, an order for reinstatement is scarcely an unusual order (see for example National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, Australian Postal Corporation v Stephens [2011] FCA 947, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Phillips Engineering Aus Pty Ltd [2010] FCA 611, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218) and indeed is contemplated by s 545 of the FW Act.

27    Finally, as Moore J observed in Eaton Electrical Systems at [42]-[43]:

[42]    The law relating to the need for trust and confidence in an employment relationship was developed at a time when employment invariably involved a close personal relationship between employer and employee. The advent of corporate employers has diminished the importance of this element of the employment relationship. A corporation has no sensitivity. The crucial question must be what effect, if any, loss of trust by a manager in an employee is likely to have on the operation of the workplace concerned. It might be more significant, for instance, to know the name of Mr Voss's immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.

[43]    Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person…

28    The queries posed by his Honour in Eaton Electrical Systems in respect of the specific managers of the relevant employee, their attitude towards him, whether it would be possible and appropriate to move the employee within the workplace, and the effect of any lack of trust on the conduct of operations in the workplace, are equally valid questions in the case before me. There is, however, no material before me upon which I can form a view, and to that extent I consider the respondent’s contentions entirely unpersuasive.

29    Sixth, Mr Byrne is the President of the applicant's lodge at the mine. As demonstrated by evidence in Mr Byrne's affidavit (in particular paras 10 and 87) there is some inconvenience to both Mr Byrne and the applicant in Mr Byrne discharging his duties as lodge President if he were not reinstated.

30    Seventh, I am not persuaded that the Court ought not make an order for reinstatement of Mr Byrne based on the respondent's stated intention to direct Mr Byrne not to attend work notwithstanding any order for reinstatement the Court chose to make. It is unnecessary for me to decide this point at this stage of proceedings, however there is authority at the highest level in this country to the effect that "reinstatement" in the Fair Work context means not only that the employee must be placed in a position no less favourable than he was prior to termination (as the respondent submits), but also that the employer must put the employee back to the performance of those duties which the employee was fulfilling before termination, and indeed provide work to be done by the employee of the same kind and volume as was being done before termination (see Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 per McHugh J at 544-545 [14], Kirby J at 549 [33], Hayne J at 552,553 [43], [44], Callinan and Heydon JJ at 564-565 [75],[76]). As Kirby J commented in Blackadder at 549 [33], “reinstatement is meant to be real and practical, not illusory and theoretical.” As Callinan and Heydon JJ further observed in Blackadder at 565 [75], "to pay [an employee] but not to put him back in his usual situation in the workplace would not be to reinstate him." There is no evidence before the Court that the respondent cannot provide work to Mr Byrne of the nature he was performing prior to the termination of his employment.

Conclusion

31    Accordingly, it is appropriate to make the orders sought by the applicant, subject to the usual undertakings as to damages.

Associate:

Dated:    23 May 2014