Federal Court of Australia

Weber v Thomas Foods International (Stawell) Pty Ltd (Interim Reinstatement) [2024] FCA 1506

ORDERS

PENAL NOTICE

TO:    THOMAS FOODS INTERNATIONAL (STAWELL) PTY LTD

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application filed 6 December 2024 is dismissed.

2.    Upon the applicant giving the usual undertaking as to damages, until the hearing and determination of the originating application or further order, the first respondent reinstate the applicant, effective from the date of this order, to his former employment with it on the terms and conditions which applied immediately prior to 6 August 2024.

3.    A further case management hearing is fixed for 31 January 2025 at 9.30 am.

OTHER MATTERS:

The applicant gave the usual undertaking as to damages, being the following undertaking referred to in the Court’s Practice Note, Usual Undertaking as to Damages Practice Note (GPN-UNDR) –

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    On 7 February 2024 the applicant commenced his employment with the first respondent (Thomas Foods) as a truck driver, based at its site in Stawell, Victoria. The applicant’s employment was terminated on 6 August 2024 on the ground of claimed misconduct. The applicant disputes the claims of misconduct. Moreover, the applicant claims that Thomas Foods dismissed him from employment because he had exercised or proposed to exercise workplace rights. Amongst many other claims, the applicant alleges that the dismissal constituted the taking of adverse action by Thomas Foods in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act).

2    Throughout these reasons I will refer to “the respondents”, which is a reference to the first to third, and fifth to eleventh respondents. The applicant does not now seek any relief against the fourth respondent, and proposes to discontinue the claim against him.

3    Amongst the claims for relief made by the applicant in his originating application is a claim for interlocutory relief in the form of an interim injunction that the respondents reinstate the applicant to his employment effective 7 August 2024 until further order, or until resolution of this proceeding.

4    The respondents have filed an interlocutory application seeking dismissal of the proceeding, claiming that the Court lacks jurisdiction because the applicant did not bring his application within the 21-day period provided for by s 366(1) for applying to the Fair Work Commission under s 365 of the FW Act for the Commission to deal with a dismissal dispute. The respondents claim that, at least to the extent that the applicant seeks relief relating to his dismissal, he is precluded from seeking that relief by s 370 of the FW Act.

5    Both interlocutory applications were fixed for hearing before me, and were heard together.

6    For the reasons that follow –

(a)    the respondents’ challenge to the Court’s jurisdiction fails and their interlocutory application will be dismissed; and

(b)    the applicant’s claim for an injunction in the nature of an interim reinstatement order succeeds, but only to the extent that the reinstatement will be prospective from the date of the Court’s orders.

Primary findings

7    The following findings for the purpose of the interlocutory applications are based upon the affidavit evidence of the applicant, giving especial weight to contemporaneous documents. Although the respondents relied on an affidavit that was read to the Court on the interlocutory applications, none of the events the subject of the following findings was challenged by any evidence adduced by the respondents. Because the primary facts were essentially undisputed, it is sufficient to give an account of them in summary form.

8    The applicant’s employment agreement with Thomas Foods was in writing, and provided for a base annual salary of $90,000 plus superannuation at 11%. The agreement provided for 38 hours per week of work, plus reasonable additional hours. Under the agreement, there was a probationary period of six months, during which either party could terminate the employment on one week’s notice or payment in lieu of notice. The agreement also provided that the employer could dismiss the applicant without notice in the event of “serious misconduct” within the meaning of the FW Act.

9    The employment agreement contained a clause under which the applicant purported to acknowledge and agree that his employment was not covered by any award or enterprise agreement under the FW Act.

10    There are two employees of Thomas Foods with whom the applicant corresponded and engaged in the events that follow: (1) Mr Wittmann, who is the Operations Manager of Thomas Foods (and who is the fifth respondent); and (2) Mr Hateley, the Transport Manager of Thomas Foods (who is the sixth respondent).

11    On 12 May 2024, the applicant sent a detailed email to Mr Hateley attaching a spreadsheet claiming that he had been working extra hours and was entitled to allowances that were not included in the employment agreement. He claimed that he was covered by the Road Transport and Distribution Award 2020 under which he was entitled to various penalty rates and allowances and paid meal breaks. The upshot was that the applicant claimed that on the basis of the hours that he had worked, his remuneration under the employment agreement was not sufficient to cover his award entitlements, claiming a shortfall for a three-month period that he calculated at $4,800.

12    On 13 June 2024, the applicant sent an email to Mr Hateley complaining that his most recent payslip had not correctly accounted for three days of personal leave that he had taken, and in respect of which he had not been paid.

13    By 17 June 2024 the applicant had not received a response to his 12 May 2024 email to Mr Hateley, and he sent a follow-up email.

14    Thereafter, on 19 June 2024 a meeting occurred between the applicant, Mr Wittmann, and Mr Hateley. The applicant was informed at this meeting that he was not covered by any award.

15    On 20 June 2024, Mr Wittmann sent an email to the applicant in which he stated that it was not disputed that the Road Transport and Distribution Award 2020, or the Road Transport (Long Distance Operations) Award 2020 potentially had application to the applicant’s role. In particular, Mr Wittmann did not dispute that an annual leave loading under clause 24.4 of the Road Transport and Distribution Award 2020 applied to any annual leave taken by the applicant. Significantly, Mr Wittmann conceded that the applicant should have been engaged directly in accordance with the award, and not on a contract basis. Mr Wittmann then stated –

Therefore, we are currently undertaking an assessment of what you would have been entitled to under the Award (including minimum rates, overtime and penalties) compared to what you have actually been paid during the period of employment.

To the extent that a shortfall exists between what you have been paid, having regard to the salaried contract versus the Award, we will address that by paying to you any difference that may exist.

Once that assessment has occurred, we intend to advise you of the outcome and provide you with the opportunity to comment.

16    Following this email, there were further email exchanges between the applicant and Mr Wittmann about his award entitlements, including raising questions about the correct identity of the applicable award. The applicant also raised claims that he had not been provided with reasonable adjustments in respect of a claimed workplace injury to his back which had been the subject of a workplace injury notification on 11 June 2024. The applicant claimed that he has suffered an aggravation of back pain as a result of the seating position of the truck which he was engaged to drive. He claimed that others using the truck altered his seating position, causing an exacerbation of his injury.

17    On 30 July 2024, Mr Hateley sent a detailed six-page letter to the applicant in which he stated that the applicant was suspended from his employment and directed not to attend for duty, but that he would remain on pay. The letter then set out in a tabular form a series of claims of inaccurate entries in the applicant’s log book based upon records said to be generated by an electronic control module, or “ECM”, in the vehicle. The letter claimed that these inaccuracies amounted to “[e]rrors, discrepancies and/or falsifying records”, and gave rise to potential breaches of the Heavy Vehicle National Laws and Regulations. The letter did not specify which inaccuracies were to be treated as errors, or discrepancies, or falsifications, and it did not provide particulars of what laws were said to have been breached, and in what way. To give an example of the allegations in the letter, the letter alleged that the applicant had recorded himself as commencing work at 12.00 noon in Laverton, whereas the ECM recorded an “ignition on time” of 11.56 am in the neighbouring suburb of Truganina. This was not the least serious allegation. The letter directed the applicant to attend a meeting the following day, 31 July 2024, to discuss the allegations and to give the applicant an opportunity to respond.

18    A meeting occurred on 31 July 2024, which the applicant had been directed to attend the previous day. The applicant claims that prior to this meeting he was not given adequate notice of the allegations made against him, or adequate time in which to prepare a response.

19    On 6 August 2024, the applicant attended another meeting, and was handed a letter from Mr Hateley giving notice of termination of his employment summarily. The letter set out in tabular form by reference to the claims made in the letter of 30 July 2024 a series of conclusions, the large majority of which were adverse to the applicant. The termination letter claimed that the allegations that had been substantiated gave rise to conclusions that the applicant had breached the Heavy Vehicle National Laws and Regulations, and that there were “errors, discrepancies and/or you have falsified your records required to be maintained by you under the Heavy Vehicle National Laws and Regulations”.

20    The applicant commenced this proceeding as a self-represented litigant by originating application filed on 24 October 2024. The relief sought in the originating application is extensive, reaching well beyond relief relating to his dismissal from employment. The relief that is sought relates to an array of alleged award breaches involving the applicant, as well as other truck drivers employed by Thomas Foods, and seeks declarations and penalties for claimed contraventions. The named respondents to the proceeding include several employees and agents of Thomas Foods who are alleged to have been concerned in the contraventions. The originating application was supported by a detailed affidavit of the applicant which, together with its annexures, comprises 623 pages.

21    Prior to commencing this proceeding, the applicant did not apply to the Fair Work Commission under s 365 of the FW Act for the Commission to deal with the applicant’s claim that his dismissal was in contravention of Part 3-1 of the FW Act. That failure gives rise to the first issue that I will address, which is whether this Court has jurisdiction to entertain the applicant’s claims relating to his dismissal. I address the question of jurisdiction, or authority to decide, first as the submissions put on behalf of the respondents in support of their interlocutory application necessarily go to whether the Court has power to make the interim reinstatement order sought by the applicant.

Authority to decide

22    By an interlocutory application filed 6 December 2024, the respondents seek an order that the originating application be dismissed for want of jurisdiction, or alternatively be dismissed as an abuse of process. In oral submissions, counsel for the respondents clarified that the claimed want of jurisdiction and the claimed abuse of process were the same point, and that there was no claim that the proceeding was an abuse of process on any other ground. Counsel also clarified that the application should be understood as relating only to the claims made by the applicant concerning his dismissal, and that the interlocutory orders sought did not extend to the several other claims made by the applicant in his originating application.

23    Section 539 of the FW Act, when read with s 540(1)(a), gives standing to a person affected by a contravention of s 340(1) of the Act to apply to the Court for orders in relation to the contravention. That is because s 340(1) is listed in the table of civil remedy provisions appearing under s 539.

24    Section 545 of the FW Act provides for the power of the Court to make orders where the Court is satisfied that a person has contravened a civil remedy provision. The orders that the Court may make are expressed broadly as, “any order the court considers appropriate”. Without limiting that broad expression of power, s 545(2)(a) specifically authorises “an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention”, and s 545(2)(c) specifically authorises “an order for the reinstatement of a person”. It is well established that an order for reinstatement may be made on an interim basis. Therefore, the jurisdiction of the Court generally to make the orders sought by the applicant is not in issue. What is in issue is whether the applicant has engaged certain conditions that are said by the respondents to be necessary to give authority to the Court to make the orders on his application. This type of challenge is akin to challenging the existence of a jurisdictional fact, which is a necessary condition to the exercise of a court’s power.

25    Section 544 of the FW Act provides for a time limit on applications in relation to a contravention. I include the legislative notes to s 544 in the following extract, because counsel for the respondents relied on them –

544    Time limit on applications

A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:

(a)    a civil remedy provision;

(b)    a safety net contractual entitlement;

(c)    an entitlement arising under subsection 542(1).

Note 1:    This section does not apply in relation to general protections court applications, sexual harassment court applications or unlawful termination court applications (see subparagraphs 370(a)(ii), 527T(1)(a)(ii) and 778(a)(ii)).

Note 2:    For time limits on orders relating to underpayments, see subsection 545(5).

26    In general terms, counsel for the respondents submitted that Note 1 was an operative part of the text of the Act which provides that s 544 does not apply to a general protections court application, which term is defined by s 368(4) as –

A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

27    It is convenient at this point to say that I do not accept this submission. Note 1 is a legislative note that is of a navigational and explanatory character that draws the reader’s attention to the provisions referred to in the legislative note: see Herzfeld P and Prince T, Interpretation (3rd ed, Thomson Reuters, 2024) at [5.140]. As a matter of construction, the legislative note does not operate with primary legislative force. Further, for reasons that will become apparent, relevant to general protections court applications, it is significant that the legislative note refers only to s 370(a)(ii), and not the whole of s 370.

28    The next step in the respondents’ argument addresses the provisions in Part 3-1 which confer jurisdiction on the Commission to deal with a dispute relating to a dismissal in contravention of the general protections provisions in Part 3-1. The starting point is s 365, which provides –

365    Application for the FWC to deal with a dismissal dispute

If:

(a)    a person has been dismissed; and

(b)    the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

29    Section 366 imposes a time limit for an application under s 365 of 21 days, or such further period as the Commission allows –

366    Time for application

(1)    An application under section 365 must be made:

(a)    within 21 days after the dismissal took effect; or

(b)    within such further period as the FWC allows under subsection (2).

(2)    The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)    the reason for the delay; and

(b)    any action taken by the person to dispute the dismissal; and

(c)    prejudice to the employer (including prejudice caused by the delay); and

(d)    the merits of the application; and

(e)    fairness as between the person and other persons in a like position.

30    When originally enacted, the time limit under s 366(1)(a) was 60 days, but this was amended to 21 days by the Fair Work Amendment Act 2012 (Cth).

31    The relationship between ss 365 and 366 was described by the Full Court (Rares, Collier and Charlesworth JJ) in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 (Coles Supply Chain) at [51], stating that the sections were concerned with different subject matter –

The first observation is that s 365 and s 366 are concerned with different subject matters. Section 365 defines the persons who are entitled to make a general protections application to the FWC involving dismissal. Section 366 conditions the manner in which such a person’s application must be made. The condition is that the application be commenced within 21 days or a longer a period that may be allowed by the FWC in the exercise of the discretionary power conferred under s 366(1), having regard to the factors in s 366(2). For an application to be “made under” s 365, it must be made by a person described in s 365 and it must be made within the time prescribed or allowed under s 366(1). The opening phrase in s 368, “if an application has been made under s 365”, incorporates both concepts. The words erect an essential precondition to the FWC’s authority to perform both its conciliation function and its associated power to issue a certificate under s 368(3).

32    Section 368, to which the Full Court referred in the above passage, casts an obligation on the Commission to deal with the dispute (other than by arbitration) if an application is made under s 365. Section 368(3) provides for the Commission to issue a certificate if satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful –

(3)    If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a)    the FWC must issue a certificate to that effect; and

(b)    if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

33    If the Commission issues a certificate under s 368(3), then the parties may agree to have the Commission arbitrate the dispute, in which case the Commission may make a number of orders including reinstatement and compensation.

34    This brings me to s 370 on which the respondents relied, which precludes the making of a general protections court application in the circumstances set out –

370    Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

35    The subject matter of s 370 was formerly located in s 371 of the FW Act, as originally enacted. Sections 368–70 in their current form were inserted by the Fair Work Amendment Act 2013 (Cth). The Revised Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) stated at [218] –

New Section 370 – Taking a dismissal dispute to court

218.    New section 370 sets out the two circumstances in which a dismissed employee can make a general protections court application in relation to a dismissal. They are:

•    if the FWC has issued a certificate under new paragraph 368(3)(a) in relation to the dispute and the court application is made within 14 days of the certificate being issued unless the court allows otherwise (paragraph 370(a)); or

•    the court application includes an application for an interim injunction (paragraph 370(b)). This recognises that applicants may decide not to involve the FWC where urgent relief is sought and the allegations are particularly serious, the facts in dispute are particularly complex, or the employer is unlikely to agree to consent arbitration.

36    The explanation in the last paragraph set out above covers a range of situations. It includes a recognition that under the scheme set out in ss 365–70, the Commission cannot make an interim reinstatement order, and that the Commission can only make any type of order if the parties consent to the Commission arbitrating the dispute.

37    The written submissions of counsel for the respondent advanced the following argument –

The … Respondents contend that the effect of section 370 of the Fair Work Act 2009 (Cth) (FW Act) is that the statutory conditions in sections 365 and 366 of the FW Act need to be present before bringing a general protections court application (as defined in section 368(4) of the FW Act). Here, the Applicant does not satisfy the statutory condition of bringing his general protections court application within 21 days after his dismissal took effect. Further, the Applicant has not sought an extension of time from the Fair Work Commission (FWC) under sub-section 366(2).

38    Within this submission is a contention that a 21-day limitation period from the date of dismissal applies to a general protections court application where it includes an application for an interim injunction.

39    It is important in considering the case advanced by the respondents that counsel for the respondents accepted that the applicant’s originating application included an application for an interim injunction: see s 370(b). There was no suggestion that the application for the interim injunction was colourable. It is not necessary to decide this point, but it is conceivable that in other circumstances a colourable claim for an interim injunction might take a general protections court application outside the terms of s 370(b).

40    Counsel for the respondents submitted that s 370 did not apply to the applicant, because he was not a “person who is entitled to apply under section 365 for the FWC to deal with a dispute” because the applicant was outside the 21-day time limit under s 366(1)(a) and the Commission had not extended time. An element of counsel’s argument was that the expression brings with it not only s 365, but also the time limitation in s 366. I apprehend that counsel was submitting that unless an applicant engages the terms of the chapeau of s 370, then no general protections court application can be made at all. In this respect, counsel relied on Note 1 to s 544 as having the substantive operation that s 544 does not govern the time limit for a general protections court application, and that the time limit was governed by s 370. This was said to import a requirement that, in relation to an application to the Court that includes a claim for an interim injunction, the application to the Court be brought within the same time limit within which an application could be brought to the Commission. As I stated earlier, I do not accept the respondents’ submissions in relation to the effect of Note 1 to s 544.

41    To address directly the respondents’ submission that the applicant does not engage the chapeau to s 370, there are several points to be made.

42    First, if the submission were correct, it would take the applicant outside the operation of s 370 entirely, with the consequence that no element of s 370, including its preclusion on bringing a general protections court application, would be applicable. I am not sure that this was the result for which counsel intended in making the submission.

43    Secondly, I think counsel’s real point was that in construing s 370, the time limits applicable to an application to the Commission under s 366 are to be imported. This construction is not supported by the text of the legislation, or any available process of construction undertaken in accordance with accepted principles. The correct construction of the chapeau to s 370 is that it is referable to s 365, which “defines the persons who are entitled to make a general protections application to the FWC involving dismissal”, and not s 366, which “conditions the manner in which such a person’s application must be made”: Coles Supply Chain at [51]. There is no place in s 370 for the time limits in s 366, which relate to the manner in which an application to the Commission under s 365 may be made, and not an application to a court. Where s 370(a) is engaged, the applicable time period beyond which an application to a court is precluded is the 14-day period from the date of the Commission’s certificate that is referred to in s 370(a)(ii), or such period as the court allows. Indeed, a person who falls within the terms of s 370(a) is not likely to be in a position to bring an application to a court within 21 days of the dismissal, for that person will necessarily have gone through a process in the Commission. Yet a corollary of the respondents’ submission was that the requirements of s 366 would apply equally to persons within the ambit of s 370(a), thereby denying such persons the right to bring a court action. Note 1 to s 544 makes an accurate reference to s 370(a)(ii) in this regard. There is no place for s 366 in this analysis.

44    Thirdly, the analysis then carries over to s 370(b). The chapeau to s 370 does not import the time limit in s 366 that is applicable to an application to the Commission, and unlike paragraph (a), paragraph (b) does not provide for any time limit.

45    Fourthly, no special time limit on an application to the Court for an interim injunction that is authorised by s 370(b) is to be implied. In oral argument, counsel for the respondents disclaimed any submission that the Court should construe s 370(b) by implying a qualification that an application to a court for an interim injunction should be made within the same time period applicable to an application to the Commission under s 366. Although the respondents did not make any submission that a time limit is to be implied, I will address the point in any event, because I am concerned with a question of interpretation of a Commonwealth statute that may have broader implications.

46    In HFM043 v Republic of Nauru [2018] HCA 37; 359 ALR 176, Kiefel CJ, Gageler and Nettle JJ stated at [24] –

The task of construction of a statute is of the words which the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature. Words may be implied to explain the meaning of its text. The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.

(Emphasis added, citations omitted.)

47    Within the above passage was a footnoted reference to Taylor v Owners — Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 (Taylor), which addressed what was argued to be an anomaly in provisions of the Civil Liability Act 2002 (NSW) concerning the assessment of damages in dependants’ claims. The majority (French CJ, Crennan and Bell JJ) declined to read the text of the provision in the way argued by the appellant, in effect rejecting a submission by the appellant that the text was not consistent with some legislative purpose that was outside the statute. In coming to that conclusion, the majority stated at [38] –

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

(Citations omitted.)

48    The majority then referred to Lord Diplock’s three conditions for reading words into an Act identified in Wentworth Securities Ltd v Jones [1980] AC 74 at 105, which were reformulated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592 in the following terms –

A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] A.C. 74, 105–106.

49    French CJ, Crennan and Bell JJ then stated at [39] –

However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.

(Citations omitted.)

50    In relation to s 370(b) of the FW Act, the following features, alone and in combination, tell against the implication of any special time limitation being implied into s 370(b), which authorises an application to a court for an interim injunction –

(1)    There is no sufficient basis to think that the absence of a time limitation applicable to s 370(b) is the result of any inadvertence. There are at least three reasons. First, s 370 was inserted by the 2013 amending Act, and took the place of the repealed s 371, which likewise had no time limitation that applied to applications for interim injunctions. It is unlikely that some error or slip has been re-enacted in this way. Secondly, Note 1 to s 544, by the absence of any reference to s 370(b), confirms that it is only s 370(a)(ii) that contains a special time limitation that is an exception to the general six-year limitation in s 544. Thirdly, the terms of [218] of the Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) support a construction that there is to be no special time limit attaching to proceedings authorised by s 370(b).

(2)    The terms of any implication are not clear. It would require some careful and considered drafting to conceive of some implied qualification to s 370(b) that would operate in a harmonious way with the other sections. For instance, should there also be implied a power of the Court to enlarge any implied limitation of time so that s 370(b) corresponds to s 370(a)?

(3)    The rhetorical question posed in the previous paragraph illustrates that any implication would be just “too big”, and “too much at variance with the language in fact used” in s 370.

(4)    Finally, it is to be observed that s 370(b) serves to identify an area of jurisdiction of the Court, and that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

Interim reinstatement

51    Counsel for the respondents argued the application on the assumption that the principles essayed in Australian Broadcasting Corp v O’Neill [2006] HCA 46; 227 CLR 57 governed the exercise of the power to grant an interim injunction pursuant to s 545 of the FW Act.

Prima facie case

52    Counsel for the respondents did not, in the end, dispute that the applicant had a prima facie case, although at times he appeared to submit that the Court should not ascribe any particular strength to the prima facie case. Counsel for the respondents was correct in conceding that the applicant has a prima facie case. However, the strength of the prima facie case is relevant to the balance of convenience and is a matter on which the Court on this application should form a view.

53    There is a reasonable circumstantial case, arising from the order of events, that the inquiry conducted by Thomas Foods that led to the suspension of the applicant, the presentation to the applicant of the table of allegations on 30 July 2024, and the decision to dismiss the applicant from his employment, was brought about because the applicant had exercised or proposed to exercise a workplace right, namely to claim entitlements under an Award. The applicant’s prima facie case is strengthened by the fact that there was not a skerrick of direct evidence from Thomas Foods that addressed the question whether the adverse action that it took was because the applicant had exercised, or proposed to exercise, a workplace right in circumstances where, under s 360 of the FW Act, “a person takes action for a particular reason if the reasons for the action include that reason”.

54    Thomas Foods is not entitled to claim any penalty privilege, and there was no claim by the individual respondents to any penalty privilege, assuming it is available to them. Even if penalty privilege were invoked, it is unlikely that it would preclude the drawing of an inference that any evidence of employees of Thomas Foods would not have assisted its case: Enkel v We R Finance Pty Ltd [2020] FCA 1668 at [45] (Jackson J). Mr Wittmann made an affidavit, thereby potentially exposing himself to cross-examination. But he did not address whether the adverse action was taken for an impugned reason when other evidence strongly suggests that he is in a position to shed light on that question. The unexplained failure to adduce evidence on a topic from a witness who otherwise gives evidence may give rise to an inference that the witness’s evidence on that topic would not have assisted: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ).

55    For the above reasons, on the evidence before the Court on this claim for interlocutory relief, the applicant’s accepted prima facie case is to be regarded as one of reasonable strength, which informs the balance of convenience. In reaching this conclusion, I have paid no regard to any potential role of the statutory presumption in s 361(1) of the FW Act, which under s 361(2) does not apply in relation to orders for an interim injunction. I therefore need not consider Police Federation of Australia v Nixon [2008] FCA 467; 168 FCR 340 at [69] (Ryan J).

Balance of convenience

56    On the assumption that the applicant’s application is properly before the Court, the submissions of counsel for the respondents focussed on the balance of convenience. Those submissions were confined to two related points. They were that the applicant had delayed in bringing this application, and that in the time since Thomas Foods dismissed the applicant from his employment, the transport requirements of Thomas Foods had changed such that there would be difficulty finding work to allocate to the applicant should he be reinstated.

57    There was no direct evidence, and no submissions put by the respondents, that reinstatement would otherwise be impractical by reference to the claims of misconduct that had been the justification for terminating the applicant’s employment, or by reference to any breakdown in the relationship of trust and confidence between the applicant and Thomas Foods on that, or any other account. Even if there had been issues of this sort in contention, they would need to be carefully scrutinised for the reasons explained by Wilcox CJ, Marshall and North JJ in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.

58    In the way the case was put, the respondents submitted that reinstatement would be impractical for organisational and logistical reasons. Mr Wittmann deposed that Thomas Foods used a combination of a logistics contractor, Qube, and employed drivers. He stated that in the period of his employment, due to reasons of cost-effectiveness, the role of Qube had increased, and the importance of Thomas Foods’ own drivers had reduced. He described this as a structural change. He also deposed that Thomas Foods did not replace the applicant with another employed driver.

59    Mr Wittmann also stated that Thomas Foods had recently constructed a cold store facility at its Stawell site, which has been in use since mid-November 2024. Mr Wittmann stated that this has implications with respect to the work available to its employed drivers. He said that there had been a general division of work between work performed by Qube, and work performed by employed drivers. Generally, employed drivers would transport “pans” of product from Stawell to a cold store in Melbourne, and Qube would typically transport entire shipping containers from Stawell or Melbourne to the wharf in Melbourne, to be loaded onto ships. Mr Wittmann said that the commissioning of the on-site cold store in Stawell now means that there is no need, or perhaps very little envisaged need, to transport pans of material from Stawell to the cold store in Melbourne. He stated that transitionally, employed truck drivers were still delivering products to the Melbourne cold store to fulfil existing orders, but this would likely be completed in the coming few weeks or months. He stated that after that time, the intention is that Thomas Foods would be self-reliant upon its own on-site cold store located in Stawell.

60    Mr Wittmann stated that as a result, if the applicant were to be reinstated as an employed driver, he would struggle to find any work which the applicant could usefully perform, let alone a full-time workload. He said that whatever work he might be able to find for the applicant would be taken away from other employed drivers. Mr Wittmann did not state that Thomas Foods intended to cease its employment of other drivers; indeed, the implication of this last statement is that there remains some work for employed drivers to perform for Thomas Foods.

61    The applicant disputed several aspects of Mr Wittmann’s affidavit evidence. In his reply affidavit, the applicant stated that he was engaged on a permanent truck run to deliver bins of bones to Melbourne, and that this work was not affected by the changes to which Mr Wittmann referred. The applicant expressed an understanding that his run had been given to an external trucking contractor, and not assigned to an employed driver. The source of that understanding was not identified, and this affects the weight that I give it.

62    The applicant addressed in his reply affidavit the effects of his termination. He stated his termination has affected his ability to earn income and has affected his mental health. The applicant stated that he had applied for multiple positions as a truck driver within a reasonable distance of his place of residence and had been unsuccessful in finding employment. He stated that when interviewed he was typically asked the identity of his last employer and the reasons he left, which required him to disclose that he was sacked for serious misconduct. The applicant stated that he relied on his wife’s income, which was modest as she was employed as a cleaner. The applicant, who is self-represented, gave all this evidence at a level of generality, but it was not objected to, and there was no cross-examination.

63    In assessing the balance of convenience, I do not look only to the detriment that the applicant claims to have suffered, or to the inconvenience that Thomas Foods relies upon should an order for reinstatement be made. Neither is determinative. Rather, as Thawley J stated in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805 at [60] (citing well-known appellate authority), “the Court should assess and compare the prejudice and hardship likely to be suffered by the respondent, third parties and the public generally if an injunction is granted, with that which is likely to be suffered by the applicant if no injunction is granted”, and the “question of whether damages will be an adequate remedy will ordinarily be considered as part of the balance of convenience”.

64    Addressing first the inconvenience to Thomas Foods, the evidence of Mr Wittmann was not challenged by cross-examination, but was contested by the applicant in his reply affidavit. I am not in a position to make any findings about the contested issues. However, taken at its highest, Mr Wittmann’s statement that he would struggle to find work for the applicant should he be reinstated takes as a premise that the transport arrangements that are currently in place, including the use of contractors, would remain unchanged. Mr Wittmann does not descend into any detail about the types of arrangements that are in place with Qube, and he does not address what changes to contracting arrangements, or to the distribution of work among employed truck drivers, may be possible. There is an inference that is open that looking at the workload globally, the work that the applicant was undertaking has been taken up by contractors.

65    As for the question of delay by the applicant in bringing this application, there was undoubtedly delay between 6 August 2024 and the filing of the application on 24 October 2024. However, counsel for the respondents properly acknowledged that Thomas Foods has been on notice since about October 2024 of the applicant’s claim for interim reinstatement. As for the reasons for the delay, the applicant stated from the bar table that, as a self-represented litigant, it took him some time to research and prepare his case, together with the supporting documents. Having regard to the length and content of the applicant’s originating application and affidavit in support, I infer that it did take the applicant, as a self-represented litigant, significant time to prepare his case for filing. It is difficult though to gauge whether the failure to file the application more expeditiously has caused any differential prejudice to Thomas Foods. Accordingly, on the evidence adduced on this application, I do not give much weight to the fact of delay, in itself.

66    The prejudice to the applicant has been the subject of his affidavit evidence and, although expressed in general terms, has not been challenged. The prejudice deposed to by the applicant has an air of inherent probability about it. I accept for the purpose of this application that the applicant has not been able to find other employment, and that the circumstances of his dismissal by Thomas Foods have been a contributing factor. I accept that this has had a significant effect on the applicant’s livelihood, earning capacity, and mental state.

67    For the reasons I have given, the applicant has a reasonably good prima facie case of contravention, and this also informs the balance of convenience.

68    Weighing the above considerations together, the balance of convenience favours the making of a reinstatement order on the condition that the applicant gives the usual undertaking as to damages, the content and significance of which I explained to him during the course of the hearing. I gave the applicant time to consider the question whether he would give an undertaking as to damages, after which he stated that he would do so.

69    As for the adequacy of damages, it is relevant to note that the interim order sought by the applicant is sought in aid of a final order for reinstatement under the FW Act. Unlike final injunctions in some areas of law, inadequacy of damages is not an essential prerequisite of a statutory order of that kind, even on a final basis. Accordingly, I consider that the adequacy of damages has little role to play in my consideration of the claim for interim relief. Still, I consider that the stigma associated with the applicant’s dismissal, to which he has deposed, is not something that can readily be addressed by a money award, especially taking into account the nature of some of the allegations upon which the dismissal was founded, to which I alluded at [17] above.

70    The applicant seeks interim reinstatement backdated to 6 August 2024. At the final hearing, backdated reinstatement is a remedy that the applicant may pursue. However, at this stage I consider that the minimum equity to do justice between the parties is to order reinstatement from the date of this order. As I have identified, and without criticising the applicant, he has delayed bringing this proceeding. A central function of this interim order for reinstatement is to preserve the subject matter of the litigation, such that the applicant is not deprived of an opportunity to obtain a final order for reinstatement by reason of the effluxion of even more time. Ordering, on an interim basis, that the applicant be reinstated only prospectively is sufficient to preserve the employment relationship between the applicant and Thomas Foods, with the result that a final order for reinstatement remains a realistic possibility, if the applicant ultimately succeeds in his claim. Additionally, if I were to make an interim order for backdated reinstatement, where the applicant has not in fact performed work, that could be tantamount to an interlocutory award of compensation.

Conclusion

71    For the above reasons, the respondents’ interlocutory application will be dismissed, and I will make an interim reinstatement order, effective from this day.

Associate:

Dated:    20 December 2024

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