FEDERAL COURT OF AUSTRALIA

Daccache v BOC Limited [2020] FCA 485

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent is to reinstate the Applicant’s employment to the position he held with it as at 16 March 2020, and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of these orders.

2.    The Respondent is not to dismiss the Applicant from the employment specified in Order 1 above until the Applicant’s complaint to the Australian Human Rights Commission of 16 March 2020 (the Complaint) is:

(a)    withdrawn pursuant s 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); or

(b)    terminated by the President pursuant to s 46PF(1)(b) and s 46PH of the AHRC Act; or unless

(c)    the Court orders otherwise.

3.    Liberty to apply on two days’ notice.

4.    Costs be reserved.

5.    Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    On 16 March 2020, the applicant, Mr Daccache, lodged a complaint with the Australian Human Rights Commission alleging that the respondent, BOC Limited ACN 000 029 729, had unlawfully discriminated against him in the course of his employment in contravention of:

(a)    s 15 if the Disability Discrimination Act 1992 (Cth) (the DDA); or alternatively

(b)    s 18 of the Age Discrimination Act 2004 (Cth) (the ADA).

2    For present purposes, it is necessary to consider only the DDA.

3    At the time the complaint was lodged, Mr Daccache was an employee of BOC and, for all practical purposes, on leave without pay. On 17 March 2020, BOC terminated Mr Daccache’s employment, consistent with a five week notice given to him on 11 February 2020.

4    Mr Daccache seeks an interim injunction under s 46PP(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) restoring his employment and restraining BOC from dismissing him until his complaint is terminated or withdrawn. He does not, however, at this juncture, seek any orders in respect of payment of wages.

5    The relief sought by Mr Daccache is opposed by BOC. Although BOC accepts that there is an arguable case under the DDA, it rejects the alternative claim that there is any arguable case under the ADA and contends that the balance of convenience strongly favours granting no relief. In particular, BOC asserts that Mr Daccache would get no benefit from the relief that he seeks, while BOC would be exposed to various risks.

EVIDENCE

6    Mr Daccache relies on his affidavit of 8 April 2020 and the affidavit of his solicitor, Ms Skelding filed on 3 April 2020. The later affidavit was received without objection but I am mindful that BOC has not had an opportunity to respond to much of it. I take that into account by focussing mainly on the record of contemporaneous documents.

7    BOC relies upon an affidavit of Mr Nguyen, BOC’s solicitor of 7 April 2020.

8    The background from that affidavit material is not substantially in dispute and, as will be seen, a matter to which I give considerable weight is that the parties are not at ‘logger heads’ in any personal sense. Indeed, there is some preliminary evidence that at least one of Mr Daccache’s superiors would be happy to have him back at work.

9    BOC’s position is that the decision to terminate Mr Daccache’s employment is based on sound medical advice which indicates that Mr Daccache is unable to carry out the inherent requirements of his employment. As will be seen, the preponderance of medical advice, in my view at least as it stands at this stage, suggests to the contrary.

10    The common ground from the affidavits establishes that Mr Daccache is a 62 year old, left-handed man. He was first employed by BOC on 1 October 2008 as a production operator. Before his employment with BOC, in 2004, he suffered an injury to his right shoulder from a car accident. The injury required surgery. He made a complete recovery from that injury. Prior to April 2019, he was earning $85,631 per year based on his classification with BOC under the BOC Limited (Perth Operation Centre) Enterprise Agreement 2018 as a level 3 operator with 14 competency units.

11    His duties involve, in simple terms, loading, processing and filling gas cylinders of various sizes. The work involves lifting weights of up to about 5 kg, with a degree of repetition varying from area to area. The area requiring the most repetition is the sort dock, where incoming gas cylinders are unloaded from pallets. It is an area where about half of Mr Daccache’s colleagues do not work at all in some cases due to a lack of training, and in others, due simply to personal preference given the nature of the work.

12    Mr Daccache reports no difficulty in performing these duties before January 2019 and, in particular, no issues arising with his neck or shoulders.

13    In June 2018, he was involved in a car accident, which caused an injury to his right shoulder. He worked as normal until January 2019, when he began experiencing significant pain, leaving him unfit to work. From April 2019, he has been on leave without pay.

14    Mr Daccache’s orthopaedic surgeon, Dr Campbell, diagnosed him as having a rotator cuff injury. He underwent surgery on 22 May 2019 and thereafter commenced rehabilitation.

15    On 7 November 2019, Mr Daccache’s orthopaedic surgeon advised that he would be fully recovered and fully fit for work after a further month of rehabilitation.

16    Mr Daccache duly advised BOC of this fact. BOC, in response, not unreasonably, referred Mr Daccache to Dr Silbert, an occupational physician for a fitness for work assessment. The evidence at this stage is that Dr Silbert did not personally physically examine Mr Daccache, nor did he personally observe Mr Daccache’s completion of assessment exercises. The person who did so was satisfied, Mr Daccache says, that he was able to comfortably fulfil all tasks which were set for him. Nonetheless, in a written report, Dr Silbert advised BOC that Mr Daccache was:

unfit to undertake the inherent requirements of his employed duties on an ongoing, fulltime and unrestricted basis … as a direct result of:

  (a)    right shoulder residual symptoms and lifting capacity limited to 20 kgs; and

(b)    persistent cervical spondylitis symptoms, with a restriction of cervical movement and remaining symptomatic despite daily Tramadol analgesia.

17    As counsel for Mr Daccache observes, the latter observation in the context of the report can be understood as referring to neck pain and related restricted movement from a condition which predated Mr Daccache’s employment. However Mr Daccache, himself, denies ongoing neck pain or any restriction of movement affecting his duties. Rather, he states that since completing the prescribed rehabilitation work, including strengthening and gym exercises, he feels the best he has felt physically in years. There are other difficulties about the foundational facts underlying Dr Silbert’s report, to which I will refer shortly,

18    Following receipt of Dr Silbert’s report, Mr Daccache met with his manager on 20 December 2019, who advised him that ‘taking [him] back or [his] resuming his normal duties [was] going to be difficult’, based on the perceived neck issues. This was the first that Mr Daccache had heard of any concern about his neck. According to Mr Daccache, Dr Silbert only asked him about the neck pain he suffered following the 2004 accident to which he replied that he had experienced neck pain previously but that it subsided and that since the most recent surgery he had much better mobility and ‘no problems with pain at all’.

19    To clarify the perceived discrepancy between his assessment and the subsequent report by Dr Silbert, Mr Daccache was provided with an opportunity to seek an opinion from his orthopaedic specialist, Dr McCloskey. Dr McCloskey provided a medical report on 31 January 2020, which, while not in the form commonly seen in a medico legal report, stated that:

(a)    there had been no deterioration in Mr Daccache’s neck between October 2012 and December 2018, that is, a period in which he performed the full range of his normal duties for BOC, including and after the car accident which led to his shoulder injury;

(b)    the minor disc degradation was a common occurrence in people of Mr Daccache’s age; and

(c)    he would be ‘more than happy’ for Mr Daccache to return to his previous employment.

20    Mr Daccache duly provided Dr McCloskey’s report to BOC, on 6 February 2020. Four days later, Mr Daccache attended a scheduled meeting to discuss his employment. When he arrived, Ms Ritter, the BOC human resources officer dealing with the matter, whom Mr Daccache had not previously met, advised that she had not had a chance to review the material and rescheduled the meeting and sent Mr Daccache home. He returned to BOC the following day and met with Ms Ritter, Ms Waterfield, Production Supervisor, and Mr Ferris. Mr Ferris had recently been appointed as the Production Manager. At that meeting, according to Mr Daccache:

(a)    Ms Ritter criticised Dr McCloskey’s report as lacking in detail, although acknowledged that his opinion was that there was ‘nothing wrong’ with Mr Daccache’s neck;

(b)    Ms Ritter identified that BOC understood Dr Silbert as identifying issues with Mr Daccache’s shoulder, neck and ‘cervical’ system, notwithstanding that the latter are the same thing;

(c)    Mr Daccache, in response to BOC’s concerns, proposed adjustments such as restricting his work to the less stressful areas, for example, not the sort dock and his accepting a corresponding reduction in pay;

(d)    Ms Ritter indicated BOC would not consider any such adjustments; and

(e)    Ms Ritter informed Mr Daccache that BOC would be terminating his employment.

21    On the same day, Mr Daccache later received a letter giving him five weeks’ notice of termination. BOC said it considered him unfit to perform the inherent requirements of his role and it did not pay him any wages in respect of this period.

22    Mr Daccache had also arranged for Dr Campbell, who performed the 2019 surgery, to examine him and prepare a medico legal report. However, an appointment made for 6 April 2020 was cancelled as Dr Campbell has closed his surgery until further notice as a result of the COVID-19 outbreak.

23    Mr Daccache, therefore, saw a different specialist, Dr Kimberly, on 25 March 2020. Dr Kimberly indicated to Mr Daccache that he disagreed with Dr Silbert’s conclusions about Mr Daccache’s fitness. Mr Daccache anticipates receiving Dr Kimberly’s report in due course.

24    I must emphasise again at this stage that BOC has not had the opportunity to reply to all aspects of Mr Daccache‘s affidavit. The proceeding was brought on urgently and both parties have laboured under the difficulties occasioned by the COVID-19 lockdown restrictions. It may well be that the conclusions as to the evidence concerning the medical condition or the communications with the employer require adjustment over a period of time, but for present purposes I have mainly focussed on the contemporaneous documentary record.

STATUTORY PROVISIONS

25    Section 46PP of the AHRC Act provides as follows:

46PP    Interim injunction to maintain status quo etc.

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

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

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

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

(Emphasis added.)

26    It is well-established that for conventional equitable injunctions, the appropriate tests for the grant of an interlocutory injunction are whether the applicant has shown 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.

See, for example, Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (at [65]-[72] and the authorities cited therein).

27    These tests are not stand alone. It is generally accepted that a strong arguable case, may require a lower balance of convenience examination and vice versa. The assessment of the interests of justice is fundamental.

28    It is important to recognise that the relief presently sought is a statutory, rather than an equitable remedy. The statute has expressly provided the availability of the relief. This is relevant, for example, to the general reluctance at common law or equity to grant relief which would be unworkable in the sense of putting together an employee and employer where the employment relationship has clearly broken down. In that regard, see, for example, McIntosh v Australian Postal Corporation [2001] FCA 1012 per Heerey J (at [9]).

29    In my view, the correct approach to the section was explained recently in Carlsson v Ford [2019] FCA 584, where Besanko J said (at [25]-[28]):

25    The applicant points to the terms of s 46PP of the Act and makes the point that there is no other relevant proceeding before the Court other than the application for an interim injunction under that section. He submits that the character of the injunction sought does not “partake entirely of the injunction available in the exercise of equitable jurisdiction”. He submits that the usual requirement that a plaintiff must be able to show a sufficient colour of right to the final relief in aid of which the [interim] relief is sought (Australian Broadcasting Commission v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 190 per Gleeson CJ at [9] and [11]) is subject to significant modification. He points to the fact that no final relief can be sought in the application because the Court's jurisdiction does not arise unless and until a complaint has been terminated by the President of the Commission. The applicant submits that the remedy provided by s 46PP of the Act is sui juris and that it extends to the grant of an injunction quia timet. He contends that the jurisdiction must be exercised in a manner which is consistent with the objects of the Act and that includes the effective exercise of the right of the applicant to lodge a complaint (Picos v Servcorp Limited [2014] FCA 922).

26    For their part, the respondents submit, as I understood it, that there was no practical difference in this case between the test for an interim injunction under s 46PP of the Act (a complaint pending before the Commission), and the test for an interim injunction under s 46PO(6) of the Act (complaint terminated and proceedings pending before the Court). That is because it should be assumed that the complaint will not be settled by conciliation and the complaint will be terminated. Furthermore, it should also be assumed that the complaint will be terminated under s 46PH(1C) because the President will be satisfied that there is no reasonable prospect that the Federal Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

27    The respondents' submission is that the usual tests on an interlocutory injunction apply (as to which see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238).

28    I do not accept the respondents' argument. It seems to me that the two powers (i.e., ss 46PP and 46PO(6)) operate in two different contexts. Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case. By contrast, a claim for an interim injunction under s 46PO(6) after proceedings have been commenced and pending the determination of the proceedings involves the usual tests for an injunction. At the risk of stating the obvious, an interim injunction might be granted under s 46PP, but on the complaint being terminated and a proceeding in the Court instituted, not under s 46PO(6).

30    I consider that the purpose of s 46PP is to protect the complaint-making and resolution process. The mediation role of the Commission is facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued.

SERIOUS QUESTION TO BE TRIED

31    BOC does not dispute that there is a serious question to be tried. There is a slight difficulty in that, although Mr Daccache is seeking an injunction restraining BOC from dismissing him, the fact is that the employment relationship came to an end on 17 March 2020 before the urgent application was made. That delay was explained primarily by complications occasioned due to the difficulties with working since the COVID-19 outbreak. Such a delay, in my view, should not count against the granting of relief. Importantly, s 46PP(1)(a) of the AHRC Act is directed to maintaining ‘the status quo, as it existed immediately before the complaint was lodged’. As at that date, on 16 March 2020, the employment relationship had not ended. Further, a similar ‘difficulty’ was put to one side in Carlsson.

32    However, BOC asserts that it has a strong defence to the claim. It relies upon s 21A of the DDA, which provides an exception if an applicant is unable to carry out the inherent requirements of the particular work, even if reasonable adjustments were to be made. BOC says that it operates in a safety sensitive industry and does not take risks on safety matters. It has acted on the basis of clear and current medical advice that Mr Daccache was not fit to perform his duties, even with any reasonable adjustments at the time his employment was terminated. BOC contends that it is clear that this exception will be made out. Further, there is the prospective application of s 21B on the basis that avoiding the discrimination would impose an unjustifiable hardship on BOC. BOC accepts, however, that ultimately those are matters to be tested in the course of the Commission dealing with the complaint and upon any subsequent hearing under s 46PO and cannot now be determined by the Court.

33    BOC contends that there is no possibility of any breach of the ADA. To be clear, no consideration of any claim under the ADA was advanced or considered in oral argument and this alternative claim does not arise in the course of my reasoning on the grant of interim relief.

34    BOC does contend, however, that damages would be an adequate remedy. The complaint to the Commission seeks reinstatement, together with unspecified ‘damages for economic and non-economic loss’. If the matter ultimately results in an application under s 46PO of the AHRC Act, alleging unlawful discrimination, an order may be made requiring the reemployment of Mr Daccache under s 46PO(4)(c) and/or requiring the payment of damages under s 46PO(4)(d). BOC stresses that there is no reason why an order for damages, if made in due course, would not be an adequate remedy for Mr Daccache such that interim reinstatement is unnecessary.

35    BOC also contends that Mr Daccache is not a worker in the category of cases where the Court would, as a matter of common law, contemplate an order for specific performance of an employment contract because of the person’s public profile and the need to be seen to continue working. It is submitted for BOC that courts have been traditionally reluctant to order the parties to an employment relationship to continue that relationship, favouring the view instead that the appropriate remedy is in damages: see the discussion in Sappideen C, Macken’s Law of Employment, (8th ed, Thomson Reuters, 2016) (at [11.60] and [11.70]) and McIntosh (at [9]). BOC argues that the statutory power to order reinstatement and compensation under s 46PO is a sufficient safeguard for Mr Daccache’s interests without warranting the grant of an interim injunction.

36    I will assume for present purposes (without deciding), as in Carlsson, that analysis of whether damages will be an adequate remedy is a consideration in this form of statutory relief. However, an ‘adequate remedy’ in an employment matter for someone of Mr Daccache’s age and skill level is not necessarily something simply measured by money. Such a consideration is exacerbated by the prevailing economic and employment uncertainty that we are currently facing. I accept the contentions for Mr Daccache that the following factors weigh in favour of making the orders sought:

(a)    the general personal importance of preserving a connection to employment for workers, particularly low skilled and older workers;

(b)    the specific value of such connection to Mr Daccache, a reasonably long serving employee who enjoyed and valued his job;

(c)    the particular value of retaining such a connection while the matter is resolved, given the current economic uncertainty;

(d)    the forthcoming potential financial benefit for Mr Daccache in terms of access to federal wage subsidies, having regard to the foreshadowed package of Job Keeper legislation passed on the evening following the urgent hearing;

(e)    the positive effect the order would have on supporting the complaints resolution process conducted by the Commission;

(f)    by keeping the parties on an even playing field while the matter is conciliated (noting that the orders self-expire on termination or withdrawal of the complaint); and

(g)    the general public interest in restraining, arguably, unlawful discrimination.

37    An award of damages, if it were to be made, only addresses some of these factors and, in my view, is not the preferable outcome.

38    In the course of the hearing, BOC submitted that much of the material going to the arguable case was irrelevant because BOC admitted the existence of the arguable case. I consider that the strength of the arguable case is important because, as indicated at the outset, a strongly arguable case may not require that the balance of convenience factors be overwhelmingly in favour of an applicant in order for relief to be granted. In my view, on the evidence as it presently stands, and I stress that this is only a provisional view on the basis of the present evidence, the arguable case is reasonably strong.

39    This conclusion is based on the fact that:

(1)    Section 5 of the DDA defines direct disability discrimination as including:

(a)    s 5(1). treating or proposing to treat a person with a disability less favourably than a person without the disability in circumstances which are not materially different;

(b)    s 5(2), failing to make reasonable adjustments for a person with a disability, which failure leads to the person being treated less favourably than a person without the disability in circumstances which are not materially different.

(2)    Section 15 of the DDA provides that it is unlawful for employers to discriminate against an employee because of their disability by dismissing them. As with other discrimination cases, the central question is one of causation. Is the real reason or a real reason for the discrimination, the disability: see, for example, the discussion in Purvis v New South Wales (2003) 217 CLR 92 per McHugh and Kirby JJ (at [166] and [169]).

(3)    On the present evidence, there is little doubt that:

(a)    Mr Daccache has a disability within the meaning of s 4 of the DDA, which includes a perceived disability;

(b)    BOC has dismissed him because of that perceived disability; and

(c)    given the absence of any other reason has done so in circumstances where it would not have dismissed him without the disability.

40    BOC points out that s 15 of the DDA is subject to the s 21A defence, which provides an exception where the person, because of the disability, would be unable to carry out the inherent requirements of the work, even if reasonable adjustments were made for the person.

41    BOC has made clear that it relies on that defence to Mr Daccache’s claim.

42    However, Mr Daccache says:

(a)    first, that he is in fact fit to perform the inherent requirements of his job as expressly agreed by his treating orthopaedic surgeon and has also advised that a second medical opinion is forthcoming; and

(b)    secondly and in the alternative, any incapacity could be cured by a way of reasonable adjustments in parallel to his claims of discrimination.

43    As to reasonable adjustments, see the discussion in Watts v Australian Postal Corporation (2014) 222 FCR 220 per Mortimer J, where her Honour, after discussing explanatory material (at [16]), said at [18]-[22]):

18    The definition of “reasonable adjustment” is critical to the disposition of the issues in this proceeding. The explanatory material (see Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] (the 2008 Explanatory Memorandum)) acknowledges the concept of “reasonable adjustments” is drawn from the Convention on the Rights of Persons with Disabilities 2007, done at New York on 30 March 2007, although the term in the Convention is “reasonable accommodation”. Article 2 of the Convention defines reasonable accommodation in the following terms:

“‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”

…

20    Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia's international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kartinyeri v Commonwealth (1998) 195 CLR 337 at [97] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [247] per Kiefel J; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [59].

21    This approach is important when the breadth of the statutory definition of “reasonable adjustment” is considered. Section 4 of the DDA defines “reasonable adjustment” in the following terms:

“an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.”

22    Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.

44    At this preliminary stage, the only evidence is that first, a reasonable adjustment could, if necessary, be made and if necessary by reduction of Mr Daccache’s income as he offered and secondly, that BOC rejected that suggestion without apparently giving it any genuine consideration. This is relevant to the strength of the arguable case.

45    Fundamentally relevant also is the degree of disability. I indicated earlier that I would say something about some potential difficulties concerning Dr Silbert’s report. The medical evidence on which BOC relied to dismiss Mr Daccache, taken at its highest, does not demonstrate complete unfitness. Rather, Dr Silbert concluded only that Mr Daccache had some restrictions. The possibility of his purported incapacity being able to be overcome with reasonable adjustments by, for example, avoiding the more taxing areas of work, as other employees in his position do, or working part time, does not appear to have been considered at all by BOC. It is not a possibility which may be rejected. BOC has made no apparent enquiry into this, other than by blanket rejection without consideration of proposals advanced by Mr Daccache on 11 February 2020.

46    There is a contest between the parties as to whether any restrictions exist. The factual basis upon which Dr Silbert reached at least some of his conclusions, namely, that Mr Daccache had persistent neck pain and took Tramadol to manage this, are, on the evidence of Mr Daccache, wrong. In any event, the basis for the conclusions reached as to Mr Daccache’s restricted capacity are unexplained and appear to be a sharp leap from the conclusions as to his actual physical condition. More specific difficulties are that it is clear, on the evidence, that BOC does not require the lifting of 20 kgs weights, which appears to be the test adopted by Dr Silbert in his report. According to Mr Daccache and the BOC Pre-employment Medical assessment pack, the weights usually required to be lifted are in the order of 5 kgs. More importantly, the problems in the right shoulder/neck adverted to by Dr Silbert do not occasion difficulty to Mr Daccache. A significant reason for this is that Mr Daccache is actually left handed.

47    In contrast to the report from Dr Silbert, Mr Daccache’s treating doctor, Dr McCloskey, an orthopaedic spinal specialist, sees no issue at all with Mr Daccache returning to full duties. He identifies that Mr Daccache’s work between 2012 and 2018, including the period after his car accident, caused no significant deterioration in his neck, in direct contrast to Dr Silbert’s position. It will be recalled that Dr Silbert did not personally physically examine Mr Daccache on Mr Daccache’s evidence and did not observe Mr Daccache satisfactorily performing, Mr Daccache says, tests carried out satisfactorily under the supervision of another person. In any event, as I say, BOC accepts there is an arguable case. As I view the evidence on its present weight, the arguable case is reasonably strong.

BALANCE OF CONVENIENCE

48    It is the balance of convenience factors on which BOC strongly rely. At least in written submissions, but seemingly, also in oral submissions, BOC pointed to four reasons why the balance of convenience is against granting of the injunction.

49    The first reason is said to be that the employment relationship has already ended. BOC says that this is not an injunction necessary to prevent a prospective termination occurring. It is instead an application seeking, in effect, the final relief of reinstatement at an interlocutory stage. As such, it goes well beyond preserving the status quo and requires BOC to take positive action to reemploy Mr Daccache. If the matter proceeds to an application under s 46PO, no doubt there will be debate at trial about whether reinstatement is appropriate. But that, BOC says, is a matter that should be decided after full evidence has been given and assessed. There is no basis, it is submitted, to determine that issue now.

50    This proposition is magnified by the fact, BOC says, that the termination only occurred at the end of a five week notice period. This is not a case where Mr Daccache was dismissed with immediate effect. The present application to the Court could have been made at any time after the letter of termination was sent on 11 February 2020, before the employment relationship ended some five weeks later. Instead, that notice period has ended with the relationship having terminated well before any application was made to the Court. It is important to note however, that Mr Daccache’s representatives wrote to BOC, on 5 March 2020, to seek a retraction of BOC’s decision to dismiss Mr Daccache. On 6 March 2020, BOC’s representative wrote to Mr Daccache’s representatives stating that the decision to dismiss would not be revisited. BOC argues that the delay by Mr Daccache, itself a crucial discretionary consideration in the grant of interlocutory relief, has had the real effect of allowing the termination of employment to proceed and for the injunction to move from a prohibition into an order re-establishing the employment relationship.

51    I do not consider these factors to be of weighty significance. Within the five week notice period, attempts were made to try to dissuade BOC from proceeding with the threatened termination. The proceedings in the Commission were filed before the expiry of that period and Mr Daccache’s termination. The delay was fully explained in affidavit material and referrable largely to the complete upheaval society is experiencing at the moment due to the COVID-19 outbreak. It is by no means clear that BOC has been prejudiced in any way by this delay.

52    BOC also contends that there is no utility in the restoration of the employment relationships as Mr Daccache has not actually performed duties since December 2018. He has been away from the workplace for an extended period. The status quo when the complaint was made to the Commission was not one where duties were being performed and there is no imperative for a court order to re-establish that relationship. If a reinstatement order is ultimately made after a full hearing of the case, so be it, but there is no necessity for such an order to be made now.

53    Again, I do not give great weight to this factor. The status quo to which the Act is directed is the employment status quo. At all material times, Mr Daccache was employed, albeit that his duties had ceased pending resolution of these and related problems.

54    The third point made for BOC in relation to balance of convenience is that an order restoring Mr Daccache’s employment would then beg the question about whether he is actually fit to resume work and whether such a return to work would be safe for Mr Daccache and others working with him. BOC cannot contemplate having an employee perform duties without being satisfied that he may do so without risk of injury to himself or others. It is not an administrative or clerical role, but rather it is as physical operational role with real health and safety issues. An order restoring the employment relationship would still leave unresolved the key issue, which BOC had sought to establish by medical examination, about whether he was fit to return to work.

55    On the only evidence before me at this stage, it is clear that other forms of work would be available for Mr Daccache to perform, which could not on any account expose him or others to risk. BOC has not suggested otherwise and has not explored the issue, even though, on the evidence as it is at the moment, activities of other employees are focussed on areas other than those which involve repetitive heavy lifting.

56    BOC also argues that it would be required to reemploy Mr Daccache without the protection of the usual undertaking as to damages and it would have no prospect of recovery of sums paid to Mr Daccache. That would cause prejudice to BOC. In contrast, there would be no prejudice to Mr Daccache because if the injunction is not granted, he can be fully compensated by the assessment of damages in due course. BOC relies upon the observations of Lucev FM (as his Honour then was) in Harcourt v BHP Billiton Iron Ore Pty Ltd (No 2) [2008] FMCA 1100 (at [53]-[54]), where Lucev FM said:

53    It is immediately apparent, without the need for evidence, that at the very least an interim injunction would see the Applicant remain in employment for many months, and possibly a year or more. In those circumstances, the Court notes what was said in Mifsud v Skye Children's Co-Operative Limited:

“Should it turn out that the Applicant does not make out her case, the Respondent will have been forced to employ her for a period of time that it does not want to employ her for and in respect of which it would have to pay monies that it cannot recover. On the other hand, if the Applicant is successful, all her economic loss may be redressed. Furthermore and I make this plain in the face of this litigation, while a Respondent must act as it feels proper, any further appointments made in the interim are not likely to stand as any sort of bar to any Orders that the Court otherwise thinks appropriate. For those reasons I am not prepared to grant the interim relief sought.”

54    Mifsud was a case under different legislation, but it was a case in which interim relief seeking reinstatement pending hearing was sought. The Court adopts the view expressed in Mifsud. The Court does so noting that it appears that any money payable to the Applicant during a period of reinstatement under an interim injunction is not recoverable, and that he cannot be required to give an undertaking as to damages as a condition of an interim injunction.

(Citations omitted.)

57    In my view, this issue falls away because BOC was assuming before receipt of all materials that Mr Daccache expected to be paid following his reinstatement. It has been made clear that that relief is not sought, contrary to the grant of similar relief in other cases such as Carlsson. The objective of the relief would be to restore the status quo of employment on an interim basis until matters have been resolved. That status quo was employment without pay.

58    I acknowledge that, at least in McIntosh (at [12]), the Court has expressed the view that some tactical advantage for the purpose of negotiations is not an objective to which the relief which might be granted under s 46PP is directed. However, [12] read in full is as follows:

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

59    The main reason relief was refused in that case was because the parties were at loggerheads and there was not a ‘working relationship which is at least potentially capable of being continued …’. This case is not in that category.

60    Mr Daccache has listed a variety of reasons as to why he would seek to be returned to the status of employee and amongst those several reasons, all of which warrant weight, is the desirability of a level playing field for the negotiations. In the circumstances of this case, where there is a reasonably strong prima facie case, as matters presently stand, I do not construe a level playing field as being some inappropriate tactical advantage. It is a strong desire for a person with limited training in an uncertain economic environment to be restored to the status of (unpaid) employee unless and until it is satisfactorily determined that he should not, for reason of disability, hold that position.

61    In my view, that objective is entirely consistent with the purpose of the Act.

CONCLUSION

62    In my view, the relief sought by Mr Daccache should be granted. I therefore make the following orders:

1.    The Respondent is to reinstate the Applicant’s employment to the position he held with it as at 16 March 2020, and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of these orders.

2.    The Respondent is not to dismiss the Applicant from the employment specified in Order 1 above until the Applicant’s complaint to the Australian Human Rights Commission of 16 March 2020 (the Complaint) is:

(a)    withdrawn pursuant s 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); or

(b)    terminated by the President pursuant to s 46PF(1)(b) and s 46PH of the AHRC Act; or unless

(c)    the Court orders otherwise.

  3.    Liberty to apply on two days notice.

  4.    Costs be reserved.

5.    Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

Associate:

Dated:    16 April 2020