Federal Court of Australia

Kosiek v Marist School Australia Ltd [2023] FCA 1049

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim for interlocutory relief filed 23 August 2023 be refused.

2.    The application for substantive relief be remitted to the National Operations Registry for urgent docket allocation.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The applicant at material times was employed by the first respondent as a secondary school science teacher. He had held a position with the respondent for approximately 22 years, until 10 August 2023 when his employment was terminated.

2    On 23 August 2023 the applicant filed an application in which he sought the following substantive relief:

1.    An order pursuant to s 545 of the Fair Work Act Australia 2009 (Cth) ('FWA'):

(a)     restraining the first respondent, Marist Schools Australia Ltd ('MSA'), from acting upon a notice dated 9 August 2023 terminating or purporting to terminate the employment of the applicant;

(b)     reinstating the applicant to his employment with MSA with no loss of entitlement as and from 10 August 2023;

(c)     restraining MSA from terminating the applicant's employment on the grounds stated in the letter dated 9 August 2023 or otherwise.

(d)     MSA undertaking any steps or engaging in any conduct purporting to terminate the employment of the applicant.

2.     Further or alternatively, pursuant to s 398(1A)(c) of the Judiciary Act 1903 (Cth) (the "Judiciary Act"), s 21 of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act") and ss 545 (1), 562 and 563 of the FWA, declarations as to contraventions by each of the first respondent, second respondent, third respondent and fourth respondent of ss 50 and 340, 362 and 550 of the FWA.

3.     Orders that each of the first respondent, second respondent, third respondent and fourth respondent pay pecuniary penalties pursuant to s 546 of the FWA.

4.     Further or alternatively, orders for compensation to the applicant pursuant to s 545(2) of the FWA by each of the first respondent, second respondent, third respondent and fourth respondent together with interest thereon pursuant to s 54 7 of the FWA.

5.     Such further or other order, including as to costs, as the Court sees fit.

3    Relevantly for present purposes, in that application the applicant also sought the following interlocutory relief:

1.     Until the earlier of the hearing or determination of the application or further order, an interim injunction:

(a)     restraining MSA from acting upon the notice dated 9 August 2023 terminating the employment of the applicant;

(b)     that MSA treat the notice dated 9 August 2023 terminating the employment of the applicant as null and void;

(c)     reinstating the applicant to his lawful employment duties pursuant to his contract of employment with MSA or alternatively as to the status quo as that which existed as at 10 August 2023;

(d)     restraining MSA from terminating of the applicant employment on the grounds stated in the letters dated 9 August 2023.

(e)     That the first respondent, second respondent, third respondent and fourth respondent be restrained in engaging in or authorising any adverse conduct directed towards, or of and relating to, the applicant.

2.     Such further or other orders as the Court sees fit.

4    At the hearing before me last week the parties made submissions concerning the interlocutory relief only.

5    Before turning to the relief before the Court it is helpful to summarise relevant background facts.

Background

6    On 17 February 2023 the applicant sent an e-mail, which he intended to send only to his union representative Ms Madonna Spillane. It appears that the applicant inadvertently selected the “reply all” email function, resulting in a large number of recipients. In this email the applicant made inappropriate comments about a fellow employee of the first respondent, who it appears was the Head of Information Technology at the school, Mr Kevin Berry (17 February email).

7    The email was as follows:

8    On 19 February 2023, the applicant withdrew the offending emailed comment by replying to the same recipients of the 17 February email.

9    On 20 February 2023 the applicant met with Mr Michael Newman, the second respondent and the Head of College at Mr Newman’s request. Mr Newman advised the applicant that he was stood down from his position and had until midday 22 February 2023 to respond to a letter to him. The letter was as follows:

10    The applicant sent an email to the Human Resource Director at the College, copying in the second respondent and directed the apology to the IT Manager who was the subject of the 17 February email.

11    The HR Director and the second respondent refused to forward the apology to the IT Manager.

12    There was various correspondence between 21 February 2023 and 18 April 2023 to and from the applicant’s and respondents’ lawyers, and individually between respondents and the applicant. In particular, in the correspondence from the applicant’s lawyer dated 28 February 2023 the following appeared:

My client had done nothing to suggest he had breached his obligations to ensure the safety and privacy of children in MCA's care and the allegation that he had, was simply untrue and outrageous. He believes that allegation was made by Mr Newman with the intent to cause him undue distress. There is no conceivable basis for any reference to be made of and relating to children nor has Mr Newman attempted to justify the reference. To make the allegation to a professional who has had children in his care for many decades is highly improper, unnecessary and inflammatory. There could be no excuse for such conduct by Mr Newman, unless his ill-chosen words were designed so as to intimidate my client. This was not reasonable management action taken reasonably by Mr Newman in order to resolve any genuine concerns.

13    On 14 March 2023 Mr Elliot wrote to the applicant, stating (in summary):

    Mr Elliot did not consider that Mr Newman's conduct amounted to adverse action or bullying, or that any breaches of the Fair Work Act 2009 (Cth) (Fair Work Act) were established.

    He was satisfied that Mr Newman's actions did not relate to any workplace right held by the applicant (to communicate with his union representative, complain or inquire in relation to his employment, or otherwise), but rather Mr Newman’s concern was in relation to the tone of the 17 February email.

    The first respondent had a process for raising complaints respectfully and confidentially, and Mr Kosiek did not follow that process, but rather publicly disparaged a co-worker.

    While the applicant had retracted the 17 February email it was reasonable for the first respondent to consider whether any further steps were to be taken in response to his conduct in sending the email.

    Mr Newman's actions did not constitute bullying of the applicant, because Mr Newman acted within the bounds of reasonable management action.

    Termination of the applicant’s employment was not being considered as a potential outcome for the process set out in the 20 February letter.

14    Subsequently in correspondence dated 20 March 2023 the applicant’s lawyer wrote:

To be clear, in circumstances where my client maintains his complaint against Mr Newman, in respect of which we still await Mr Newman's response, it is neither appropriate nor reasonable that my client be directed to meet with him. I am instructed that Mr Newman has exhibited repeated and unreasonable behaviours towards my client, which has created a risk to my client's health and safety. In this respect, my client reserves all his rights against MSA and Mr Newman. To expect my client to meet with Mr Newman in such circumstances is neither reasonable, nor lawful.

15    By email dated 24 March 2023 to the first respondent’s lawyer, the applicant’s lawyer wrote as follows:

My client instructs that he relies upon my response to you dated 20 March 2023, in response to yours dated 14 March, however because he did not receive Mr Elliott's letter of the same date until this week, for completeness he does wish to respond to Mr Elliott in respect of any unresolved matters and I'll have that response to you by close of business Tuesday 28 March.

One further aspect not mentioned in your email is that yesterday I told you that my client was particularly upset at Mr Newman's allegation that my client had breached his obligations to ensure the safety and privacy of children in the care of the college. You advised me that particular allegation had been made in error, and had been retracted in subsequent correspondence from you. I have looked but cannot find that retraction. The breach of child safety allegation was a particularly egregious and inappropriate allegation for Mr Newman to make and one that my client requests that he formally retract in writing and apologise for making.

16    On 18 April 2023 the applicant and his wife met with the fourth respondent, Mark Elliot (the Regional Director of Marist Schools for Queensland and the Northern Territory) and the third respondent, Charles Brauer (who at material times was employed by the first respondent as the Deputy Head of College at the School). They informed him that the first respondent proposed to issue a first and final warning to the applicant, setting out conditions of his return to work.

17    On 20 April 2023 the applicant wrote to Mr Elliott stating materially:

Thank you for meeting with Donna and me. It is much appreciated, and it appeared that discussions moved to identify some greater clarity in respect of some core issues.

As was made clear a number of times, I (and Donna) remain very concerned that the allegation in the Michael Newman correspondence of the 20th February 2023 relating to Child Protection and Safety. It still sits on my record with there being no justification whatsoever for that allegation being included.

I note that you both advised that the allegation relating to Child Protection and Safety 'was a mistake'. I am not sure how Michael Newman could 'mistakenly' make such a serious allegation, but I will leave that for him to explain.

Similarly there was acknowledgement by you that the 'bullying' allegation made against me in the same correspondence was also incorrect. I thank you for that acknowledgment.

…

18    By letter dated 3 May 2023 Mr Elliott relevantly stated:

…

Your desire for an apology from Michael Newman regarding the issues you identified was acknowledged by me at our meeting. Michael has been on the Marist Pilgrimage overseas and only returned to the College yesterday. I have had no opportunity to raise these issues with him. I will do so in our first meeting. I have, on behalf of MSA, apologised for the reference to Child Protection and Safety in the letter you received from Michael on 20 February. This will be noted in your personnel file. At no time did I indicate that any apology from Michael would be written nor did I indicate when it might be offered. That will be a decision for Michael.

In reference to the use of "first and final warning" in the letter you received from me, your comment that "Mark will work with his lawyers to have it removed" is inaccurate. I advised I would consider it and would consult with MSA legal staff. I also cautioned that, given this letter was part of a disciplinary action on behalf of MSA, it might not be possible. I can now confirm the warning will remain and the letter together with the conditions of re-entry to which you agreed will remain unchanged.

…

19    By email dated 5 May 2023 to Mr Elliott, the applicant stated that he objected to relevant correspondence being copied to Mr Newman, and continued:

…

I wish to show your correspondence of 18th April, 2023 to my lawyers and my Union representatives so I can gain their guidance. The Union representatives are also my trusted advisers.

So there is absolute clarity, could you kindly advise in clear terms on the following:

1 ls MSA attempting to prohibit me from showing the letter of 18th April 2023 to my Union representatives and seeking to speak with them about it?

2 Am I threatened with further disciplinary action if I communicate with my Union representatives about the letter?

3 In respect of my legal representatives, I have a law firm with various employees and a barrister (Mr Shaw) has also been retained. Is your letter intending to say that I can only speak to one lawyer about the letter and no others?. If so, is MSA threatening disciplinary action if I speak to more than one lawyer?

Mark, I do not wish there to be any confusion on these issues. I was threatened last time by Michael Newman simply because my lawyer copied in my trusted Union advisers. I don't wish for it to happen again. Please show me the respect of a prompt response in clear terms so I know my position.

Once I have your response I will consult as I consider appropriate and then respond.

20    By email dated 8 May 2023 Mr Elliott wrote to the applicant, stating that “in respect to the contents of the letter you received from me on 18 April 2023, you may seek legal or union advice.”

21    Separately, it is not in dispute that on 3 May 2023 the applicant was authorised to take sick leave from 17 April 2023 until 28 May 2023 instead of using long service leave.

22    On 11 May 2023 the applicant wrote to the Mr Brauer that in 2022 he had arranged for an overseas holiday between 12 May 2023 and 23 May 2023, at a time when he had approved long service leave. The email was addressed “Dear Mark”, but the email address was that of Mr Brauer. The applicant wrote in that email that his medical advice was that he was able to travel overseas notwithstanding his current condition. He stated that, given that he was stood down, he was applying for leave without pay for the duration of his travels. He noted that he was unable to enter these details into the relevant software system at the School, and asked that Mr Brauer arrange with the human resources department for this information to be processed.

23    There were various email communications between 11 May 2023 and 16 June 2023 to and from the applicant and the respondents. Included in this correspondence was an email of 12 May 2023 in which the applicant asserted that he had been bullied by Mr Newman, that he had been treated differently from other employees against whom allegations of misconduct or bullying have been made, and that he had instructed his solicitors to prepare the necessary documentation to be filed in the Fair Work Commission upon his return to Australia from Bali.

24    By email dated 6 June 2023 to the applicant, Mr Elliott wrote as follows:

You will recall that in our meeting held in my office I offered a clear apology on behalf of the College for the reference to child protection in the initial letter you received from Michael Newman. I reiterate that apology to you now. It should not have been included in the letter and we recognise its inclusion has caused you considerable concern.

To be clear, while your actions in sending the email to multiple staff on 17 February 2023 was a clear violation of the College's Code of Conduct, it did not constitute a breach of your own statutory obligations to ensure the safety and privacy of children in the College's care.

Further, while your actions were hurtful. MSA and the College accept that your email did not meet the definition of workplace bullying. This was made clear to you when you were informed of the outcome of the relevant investigation.

The College and MSA seeks to work with you to find a way forward and we look forward to hearing from you to confirm a meeting.

25    By email dated 7 June 2023 the applicant stated that he continued to require a formal apology from Mr Newman concerning the allegations of the applicant endangering child safety at the school, and bullying.

26    Mr Newman apologised to the applicant in respect of both matters in an email to the applicant dated 7 June 2023.

27    By email dated 14 June 2023 to the applicant, Mr Elliott proposed a meeting with the applicant to be attended by Ms Elizabeth Gallagher, the first respondent’s Head of Governance, Risk and Legal, where the applicant’s return to work could be discussed.

28    On 21 June 2023 the applicant advised he would be returning to work at the School, and that he would be commencing proceedings in the Fair Work Commission against both Mr Newman and the first respondent.

29    There were various emails and meetings between the applicant, the respondents and the respondent’s legal representatives.

30    On 11 July 2023 the applicant returned to teaching activities. On 14 July 2023 the applicant directly emailed Mr Berry to offer an apology.

31    On 27 July 2023 the applicant attended a meeting with the third respondent at his office. He was then taken to another meeting room where he met with Ms Gallagher. Following that meeting the first respondent wrote to the applicant in the following terms:

I refer to the meeting today, which was also attended by Charle [sic] Brauer, Deputy Head of Marist College Ashgrove and Elizabeth Gallagher, Head of Governance, Risk and Legal - MSA.

This letter formally advises you of the significant concerns that have arisen in connection with your position as Full Time Teacher at the College (Position).

…

B. YOUR CONDUCT

6. Conduct issues have been identified by the College and raised with you in recent months. The latest issues, as set out in this correspondence, relate to conduct following the closure of a separate investigation into your behaviour regarding the inappropriate email you sent on 17 February 2023 (Email Investigation).

…

The events set out below, being matters that have arisen following the abovementioned Complaint and Email Investigations, are of significant concern to the College. These matters, combined with the conduct the subject of the Warning, cause the College to hold serious concerns about whether you can be relied upon to perform your Position professionally, respectfully, and in accordance with our applicable policies and Marist values.

International travel during medical certificate period

12. On 3 May 2023 you provided the College with a medical certificate confirming that you were "currently being treated for a medical problem and ... unable to attend [your] normal work duties from Monday, 17 April 2023 to Sunday, 28 May 2023".

13. The College has become aware that during this period of alleged unfitness, you in fact travelled to Bali for a holiday commencing on 12 May 2023 and informed several colleagues of this fact.

14. This conduct constitutes a breach of the Code of Conduct, in particular the requirements to:

(a) treat your work environment with respect and dignity (clause 2.5); and

(b) act in a way consistent with the College's core values, which include being honest in relationships with others in the College community (clause 3.4).

15. Fundamentally, this behaviour also contradicts one of the core tenets of the Code of Conduct, being to foster an environment of trust (clause 1.6).

16. Further. as an employee of the College, you have duties implied under your Employment Agreement to act in the best interests of the College and to show good faith to the College in your Employment. There is a clear lack of candour in your dealings with the College that is inconsistent with these implied duties.

Failure to comply with a lawful and reasonable direction

17. On Thursday 13 July 2023, you attended a meeting with Charles Brauer, where you were lawfully and reasonably directed to issue an apology to Mr Kevin Berry for the conduct the subject of the Email Investigation in terms to be negotiated with the Deputy Head of College. This direction was foreshadowed in the Warning you received on 18 April 2023.

18. The College envisioned that this apology would be the product of discussion between you and Mr Brauer to ensure that the apology was appropriate in the all of the circumstances and delivered in a way that was acceptable lo Mr Berry. Specifically, the apology was to be directed to Mr Berry via Mr Brauer, in accordance with Mr Berry's wishes.

19. At 8.01 am on Friday 14 July 2023, you emailed Mr Berry directly and provided an apology that was not approved by Mr Brauer or delivered in the agreed manner. This conduct constitutes a failure on your part to comply with a lawful and reasonable direction, as required by clause 4.1(j) of your Employment Agreement and clause 2.8 of the Code of Conduct.

20. The College has also become aware that this apology was not considered to be adequate by Mr Berry, further justifying the College's reasoning for issuing this direction.

Failure to accept the findings of the Email and Complaint Investigations

21. As you are aware, the instances of concerning conduct set out above have occurred in the context of extended correspondence in relation to the Email and Complaint Investigations. Overall, you have not shown willingness to accept the processes followed in relation to or findings of the Email and Complaint Investigations, suggesting a lack of appreciation on your part of how the conduct the subject of the Warning was not acceptable in the workplace and of the importance of improving your conduct in future.

22. Your Employment Agreement clearly stipulates that you are obliged to ''participate in any performance review. conduct review or investigations conducted by the Employer" (clause 4.1 (t)). In circumstances where you have committed yourself to this obligation and these investigations have been carried out lawfully and reasonably, the College sees no reasonable basis for your objection to the conduct or findings of the Email and Complaint Investigations.

C. THE COLLEGE'S CONCERNS

23. The matters set out in this letter are of considerable concern to the College, since it appears that you have demonstrated a pattern of falling short of the standards required by your Employment Agreement, the College's Code of Conduct and policies and our Marist values. This pattern has culminated in the occasions of unsatisfactory conduct set out above.

24. Your Employment Agreement makes clear that failure to comply with any of the College's policies or procedures and/or refusing or neglecting to comply with a lawful and reasonable direction from the College may result in disciplinary action up to and including termination of your employment (see clauses 11.3 and 13.6(c)).

25. As a result of the Complaint Investigation, you were issued with the Warning. The Warning confirmed that any breach of College policy in the 12 months following the issuance of the Warning may give rise to further disciplinary action.

26. Notwithstanding the College's genuine engagement with you on the various matters that you have raised, instances of unsatisfactory conduct have continued to arise.

27. The College prides itself on being an employer of integrity that is underpinned by strong values that are truly adhered to in practice, in the interests of providing positive and supportive experience for its students and staff members. For this reason, we need to be able to rely on our teachers to act in alignment with the College's policies and values.

28. For the reasons set out above, your conduct has not met the College's expectations, notwithstanding the opportunities and feedback provided for you to improve your conduct.

32    The applicant was stood down from his employment on that date.

33    By letter of 4 August 2023 the applicant’s legal representative wrote to Mr Newman and Mr Brauer, in summary stating:

    The applicant denied treating the School with an absence of candour, noting that the applicant had written to Mr Brauer on 11 May 2023 informing Mr Brauer of the proposed Bali travel, the circumstances surrounding the organisation of that travel, and the applicant’s proposal to take leave without pay during that time;

    The applicant denied that he had been directed to apologise to Mr Berry in terms negotiated with Mr Brauer, or that Mr Brauer suggested that the apology to Mr Berry was to be sent via Mr Brauer, or that this was what Mr Berry wanted.

    Adverse action had been taken by the first respondent and Mr Newman against the applicant, including that the applicant was targeted for exercising his workplace rights under the Fair Work Act. The letter materially stated:

Our client does not dispute that his employer is entitled to conduct any lawful and reasonable investigation that it considers appropriate. Nor that that his employer is at liberty to make findings at the conclusion of any such Investigation. However, to your knowledge, our client has been dealing with HWL Ebsworth (HWLE), the lawyers acting for MSA and Mr Newman in respect of our client's employment issues, who have raised no such suggestions of breach or impropriety by our client whatsoever. We therefore fail to understand why this allegation has been made knowing that the matters are subject to dispute and likely to be dealt with in the Fair Work Commission (FWC). We are concerned that the allegation is a construct of your own, designed to pre-empt an external process, so as to procure an adverse finding against our client and manufacture circumstances to terminate his employment.

Your complaint appears to be that because our client has not accepted in full the contents of correspondence issued by MSA and elected to exercise his legitimate workplace rights, he has therefore engaged in conduct which is unsatisfactory and contrary to his employment obligations. At the same time, you are well aware our client proposes to take his claim to the FWC and has in fact been in negotiations with your solicitors. In such circumstances, your approach defies belief.

    It appeared that the first respondent’s correspondence was designed to target the applicant because he had chosen to dispute the context of the warning letter issued to him, which was a breach of his workplace rights.

34    On 10 August 2023 the applicant attended a further meeting with the second and fourth respondents. The meeting was recorded with consent.

35    The applicant’s employment was terminated by a letter dated 9 August 2023, which was as follows:

36    In the letter it identified that the applicant breached the employment contract under clause 4.1. Clause 4.1 provides:

4. Obligations to the Employer

4.1    Without limiting your obligation at common law or under statute, you must:

a)    ….

…

t)     participate in any performance review, conduct reviews or investigations conducted by the employer;

Summary of Submissions

37    All parties were legally represented at the hearing before me, and provided written and oral submissions.

Applicant’s submissions

38    The applicant submitted in summary as follows:

    The respondents had contravened ss 50 and s 340 of the Fair Work Act because the respondents had contravened the terms of the Enterprise Bargaining Agreement (EBA), and taken adverse action against the applicant by reason of the existence, or exercise, or proposed exercise of a workplace right.

    In relation to s 340 of the Fair Work Act the following four instances of conduct constituted adverse action:

•    Mr Kosiek’s first suspension from employment on 20 February 2023;

•    The issuing of the first and final warning on 18 April 2023

•    The second suspension of Mr Kosiek’s employment on 27 July 2023

•    The termination of his employment on 10 August 2023.

    The applicant had the following workplace rights within the meaning of s 340 of the Fair Work Act. He had exercised some of those rights or been prevented from exercising those rights:

•    To make a complaint or inquiry concerning his employment;

•    To have a safe workplace and not be bullied;

•    To take personal leave by reason of illness or injury;

•    The benefit of the EBA as a workplace instrument;

•    To initiate or participate in a dispute resolution process under the EBA; and

•    To maintain his employment in the event of a dispute with his employer except in cases of a genuine safety issue.

    A serious question arose as to whether the termination of the applicant’s employment on 10 August 2023 came about, at least in part, because he had a workplace right and had exercised a workplace right, or the respondents prevented him exercising one. In particular, during the period 20 February 2023 to 10 August 2023 the applicant consistently exercising his workplace rights, namely

(a)     He raised complaints with his employer that:

(i)     Mr. Newman had made demonstrably false statements concerning Mr Kosiek’s conduct;

(ii)    he had twice been suspended from his employment and given a first and final warning on grounds that were unjustified;

(iii)    the basis for his termination was false and unjustified;

(b)    Those complaints not only constituted the exercise of a workplace right to make a complaint or inquiry (s. 341(10(c)), but also initiated a dispute with his employer such that the dispute resolution procedure in clause 2.4 of the EBA were engaged – a separate exercise of the workplace rights identified in s 341(1)(a) and (b);

(c)    He applied for (and was apparently granted) sick leave as a result of the stress that he suffered as a result of his treatment by MCA.

    The respondents identified that the reason for terminating the applicant’s employment was because he went overseas holiday during his period of sick leave and applied to change it to unpaid leave without checking to see if it had been approved.

    There was a serious question to be tried as to whether the applicant’s employment was terminated because he had exercised his right to complain or inquire in relation to his employment and to raise a dispute under the EBA.

    In respect of the breach of the EBA, cl 2.4 of the EBA provided a mandatory dispute resolution procedure which applied to all disputes between the first respondent and its employees.

    Clause 2.4.8 and 2.4.9 provided that an employee could keep working during a dispute except when there was a genuine safety issue, and the status quo existing before the emergence of the grievance or dispute was to continue.

    Clause 2.4 of the EBA was engaged when the applicant made complaints, asserted grievances and raised disputes with the respondents. When this clause was engaged it provided that:

(a)     the employee to engage with the immediate supervisor, who is required to respond;

(b)     if unresolved, the employee to refer the matter to the next higher level of management;

(c)     if still unresolved, the reporting of the matter to a union officer (for a member of the union, which includes the applicant);

(d)     notification of the dispute to the Fair Work Commission to deal with the dispute.

    The applicant identified that he had done these steps when he had a grievance or disputes.

    In respect of the adequacy of damages and the balance of convenience:

•    The applicant’s ties to the school community and the importance of this position to him were relevant factors.

•    Damages could not remedy the loss of his ties to the community and the reputational damage and embarrassment that would be caused to the applicant.

•    He had a good relationship with his head of department, there had been no express complaint about the quality of his teaching, and he had a good relationship with his students. There was no genuine detriment to the first respondent should there be an interim reinstatement of the applicant.

•    The applicant would suffer financial detriment as he could not obtain a full-time teacher role, and only obtain supply teaching and perhaps short-term contract positions.

•    The students at the School would be at a disadvantage arising from the applicant’s continued absence, as his year 11 students would be transitioning to the year 12 curriculum in the final term of the school year.

Respondents’ Submissions

39    The respondents submitted in summary that:

    The applicant referred to his alleged intention to commence proceedings in the Fair Work Commission, but this intention did not invoke clause 2.4 of the EBA. No proceeding in the Fair Work Commission was initiated. It followed that the “normal work shall continue” and the “status quo” provisions under the EBA were never enlivened.

    The respondents accepted that dismissal of the applicant constituted adverse action for the purposes of s 342 of the Fair Work Act.

    In relation to the arguments of the applicant concerning his travel to Bali, the letter from the respondents of 27 July 2023 referred to the lack of honesty on the part of the applicant in travelling to Bali while on sick leave. The case was similar to that in CFMEU v Anglo Coal (Dawson Services) [2015] 238 FCR 273 at [36], [132] – [135]. The majority of the Full Court in that case held that the dismissal of the relevant employee did not contravene the Fair Work Act because the adverse action was taken by the employer in the belief that the employee had acted dishonestly.

    In respect of the respondents’ concerns that the applicant had failed to accept the first respondent’s findings regarding the letter of 20 February 2023, it was not in dispute that the applicant had a workplace right to make a complaint or inquiry. This did not mean however that he was entitled to breach lawful policies and procedures of the employer. The applicant’s complaints concerning Mr Newman were investigated by the first respondent. At clause 4.1 of the EBA the applicant was required to accept the results of the employer’s investigation, however he did not.

    Finally, the Fair Work Act did not create a workplace right to an employee to disobey a lawful direction by an employer. Relevantly, the applicant was given directions in relation to the apology to Mr Berry, with which he did not comply. Conduct of the first respondent referable the applicant’s actions could potentially be the subject of an unfair dismissal claim in the Fair Work Commission, but could not be the subject of an adverse action claim.

    The court’s power to order reinstatement as final relief was only available if one of the preconditions enlivening the court’s powers to make such an order under s 545 of the Fair Work Act were met. Even if, contrary to the respondents’ submission, the court was of the view that the applicant had an arguable case, the court should not exercise discretion to order final relief in the form of reinstatement because:

•    the relationship between Mr Kosiek and his senior line supervisors, the three natural person respondents, appeared to have broken down;

•    the return of Mr Kosiek as a teacher was likely to cause stress to Mr Berry as a result of the disparaging remarks made by Mr Kosiek about Mr Berry and the unresolved issue of an acceptable apology;

•    Mr Kosiek’s return to the workplace would negatively impact the health and safety of a number of staff;

•    Mr Kosiek appeared to have an ongoing demand for an apology from Mr Newman, in different wording to that already given to him;

•    Mr Kosiek’s blemished past record and the sending of the email suggested that he was a person who in the future would not inspire trust and confidence in his performance in a senior leadership role;

•    Damages would be an appropriate remedy;

•    The return of the applicant for the balance of the 2023 school year would disrupt arrangements currently in place in circumstances where he had been absent for the majority of the school year and the school has had arrangements in place to cover his absence;

•    As the applicant was seeking penalties against senior staff of the first respondent, his return would likely create a tense and difficult situation which would affect the efficiency and performance of the school;

•    The applicant had no insight into the need to curb unreasonable and disrespectful behaviour; and

•    The respondents were willing to attend mediation as a matter of urgency, and should that fail, the respondents would use all reasonable diligence to assist in having the substantive matter heard this year.

Legislation

40    Section 340 of the Fair Work Act provides:

Protection

(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).

(2)    A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

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

41    “Workplace right” is defined by s 341 of the Fair Work Act to mean circumstances where a person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee--in relation to his or her employment.

42    Relevantly the Federal Court has powers under s 545 of the Fair Work Act if an employer has breached s 340, namely:

Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)    The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1: For the court's power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3:    The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

(2)     Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)     an order for reinstatement of a person.

….

43    Section 50 of the Fair Work Act provides:

Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

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

Note 2:    A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

Consideration

44    Principles relevant to consideration of the interlocutory relief sought by the applicant are not in dispute. In particular I note the decision of the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 that an applicant for an interlocutory injunction must show, in summary:

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

    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 the interlocutory relief.

Is there a serious question to be tried in this case?

45    The respondents argued strongly that there was no serious question to be tried in this case. On balance however, I am satisfied that there is a serious question to be tried concerning the availability of the substantive relief sought by the applicant.

46    First, the applicant’s case referable to breach of the EBA by the respondents concern cl 2.4 of the EBA. This clause reads as follows:

2.4    Procedures for Preventing and Settling Disputes

The matters to be dealt with in this procedure shall include all grievances or disputes between on employee and an employer in respect to any industrial matter and all other matters that the parties agree on and are specified herein. Such procedures shall apply to o single employee or to any number of employees.

2.4.1     In the event of an employee having a grievance or dispute the employee shall in the first instance attempt to resolve the matter with the immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns alleged actions of the immediate supervisor the employee/s may bypass this level in the procedure.

2.4.2     An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.

2.4.3     If the grievance or dispute is not resolved under clause 2.4.1, the employee or the employee's representative may refer the matter to the next higher level of management for discussion. Such discussion should, if possible, take place within twenty-four (24) hours after the request by the employee or the employee's representative.

2.4.4     If the grievance involves allegations of unlawful discrimination by a supervisor the employee may commence the grievance resolution process by reporting the allegations to the next level of management beyond that of the supervisor concerned. If there is no level of management beyond that involved in the allegation the employee may proceed directly to the process outlined at clause 2.4.6.

2.4.5     If the grievance or dispute is still unresolved after discussions mentioned in clause 2.4.3, the matter shall, in the case of a member of the union, be reported to the relevant officer of the union and the senior management of the employer or the employer's nominated industrial representative. An employee who is not a member of the union may report the grievance or dispute to senior management or the nominated industrial representative. This should occur as soon as it is evident that discussions under clause 2.4.3 will not result in resolution of the dispute.

2.4.6     If, after discussion between the parties, or their nominees mentioned in clause 2.4.5, the dispute remains unresolved after the parties have genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to the Fair Work Commission.

2.4.7     Fair Work Commission may deal with the dispute in two (2) stages:

(a)     Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation;

    and

(b)    if the Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

(Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.)

A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

2.4.8     Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.

2.4.9     The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.

2.4.10     All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by the Fair Work Commission with a view to the prompt settlement of the dispute.

2.4.11     Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.

2.4.12 So as to remove doubt, the parties record that the reference to disputes or grievances in respect to any industrial matter includes disputes or grievances in relation to whether the employer had reasonable business grounds for refusing a request under the National Employment Standards for flexible working arrangements or an application to extend unpaid parental leave.

47    The respondents submitted that there was no evidence that the applicant, his union or his lawyers, ever sought to initiate a grievance or dispute under cl 2.4 of the EBA, or initiate any proceeding in the Fair Work Commission, such that the status quo provisions under the EBA were enlivened.

48    In my view there is evidence that a dispute under cl 2.4 of the EBA was initiated by the applicant. While the applicant in his correspondence with the respondents did not specifically identify cl 2.4:

    I accept the submission of Mr Shaw for the applicant that, at least prima facie, cl 2.4 had been effectively invoked by the parties;

    This was demonstrated by the sequence of events involving correspondence and meetings following the 17 February email between the applicant and successive layers of management of the first respondent – commencing with the applicant’s meeting of 20 February 2023 with Mr Michael Newman – effectively following the course prescribed in cll 2.4.1, 2.4.3, and 2.4.5;

    There is evidence in the form of correspondence by the applicant dated 5 May 2023, that the applicant has briefed his union representative in respect of relevant events in the terms contemplated by cl 2.4; and

    While no formal evidence of the commencement of proceedings in the Fair Work Commission had been tendered, correspondence dated 21 June 2023 from the applicant to the respondents, and subsequently from the legal representative of the applicant to the respondents’ lawyer dated 4 August 2023, was that proceedings had either been commenced or would be commenced imminently by the applicant in the Fair Work Commission.

49    It follows that I do not accept the respondents’ submission that the applicant had apparently abandoned the prospect of commencing Fair Work Commission proceedings.

50    Second, the primary focus of the applicant for the purposes of the interlocutory application concerned the adverse action constituted by the termination of his employment on 10 August 2023.

51    The applicant contended that a reason for that adverse action was that he validly exercised a workplace right, namely he took sick leave. Contrary to the submission of the respondents, I do not accept at this interlocutory level that the first respondent’s position equated with that of the employer in Anglo Coal. I accept the applicant’s submission that the evidence before the Court showed that at all times he had been completely honest with the first respondent concerning the basis on which he wished to travel to Bali during his sick leave, including that his attending medical practitioner had endorsed that travel as beneficial to the applicant’s health. The email to Mr Brauer dated 11 May 2023 clearly provided that information in advance of the applicant’s relevant travel, and there was no objection or expression of concern made by the first respondent at that time. The material before the Court rather suggests that, despite all relevant information being given by the applicant to the first respondent on 11 May 2023, the respondents had either misplaced or forgotten that the applicant had sent Mr Brauer that email.

52    Finally, cl 4 of applicant’s contract of employment dated 14 November 2018 relevantly provided:

4.1 Without limiting your obligations at common law or under statute, you must:

…

(t) participate in any performance review, conduct reviews or investigations conducted by the Employer.

53    This clause does not constitute an obligation on the part of the applicant to accept the results of his employer’s investigations. I do not accept the submission of the respondents that the applicant’s right to make a complaint or inquiry was circumscribed by cl 4.1 of his employment contract. I am satisfied that there is a serious question to be tried that the termination of the applicant’s employment was because of his exercise of a right to complain about his supervisor Mr Newman.

Damages and balance of convenience

54    In his submissions the applicant noted that evidence on which he relied concerning the inadequacy of damages and the balance of convenience related largely to his ties to the school community and the importance his position of employment carried for him. In particular, the applicant submitted that he had been employed at the School continuously since 2001, that he lived in the vicinity of the school and had been heavily involved in the school community, and that he and family members were past students of the school. The applicant further submitted that working at the School had been an integral component of his enjoyment of life, and that he was concerned about the reputational damage and embarrassment of having to explain why he no longer worked at the school.

55    While the applicant may warrant sympathy for his feelings of distress at no longer being employed at the School, in my view he has not demonstrated that damages would be an inadequate remedy should he be successful in his substantive application. Nor has he demonstrated that the balance of convenience favours the grant of the interlocutory relief he seeks.

56    In particular I note:

    As Mr Murdoch SC for the respondents submitted, notwithstanding the applicant’s evidence that he would suffer financial detriment should he not be reinstated pending the determination of his substantive application, this contention was not supported by financial information on behalf of the applicant to that effect;

    While the applicant deposed as to disadvantages his students would suffer from his continued absence, there was compelling evidence from Mr Elliott on behalf of the first respondent concerning the measures the first respondent had taken to ensure that the studies of Grade 11 and 12 science students would be satisfactorily serviced by the School. The applicant submitted that Mr Elliott’s evidence should be treated with scepticism because he was not engaged with the Ashgrove campus of the School on a daily basis. However while Mr Elliott had a regional role with the School, the respondents were content to rely on his evidence, which I accept as reliable at this interlocutory stage. I also accept the submission of the respondents that the School had a better appreciation of what was best for the School and its students than did the applicant;

    While the applicant deposed as to his concern for reputational damage following the termination of his employment, such evidence as was before the Court suggested that the nature and extent of the dispute between the applicant and senior staff was such that the return of the applicant could potentially escalate into further tension and ultimately discord;

    I do not accept that it would be reasonable in the circumstances for the applicant to be reinstated without the allocation of teaching classes to him; and

    I note the willingness of the parties to attend urgent mediation to endeavour to resolve all relevant issues.

Conclusion

57    In the circumstances, while I consider that there is a serious question to be tried as to the substantive issues before the Court, the balance of convenience does not favour orders in the terms sought by the applicant, and I am not persuaded that damages would be an inadequate remedy should he be successful.

58    The appropriate order is to dismiss the applicant’s claim for interlocutory relief, and further order that the substantive issues be heard as soon as possible by a Judge of this Court.

59    I will hear from the parties as to the necessity of making orders for them to attend urgent mediation.

Associate:

Dated:    6 September 2023

SCHEDULE OF PARTIES