The submissions of the parties
22 The applicants submitted that, although s 361(2) provides that the reverse onus in s 361(1) does not apply in relation to orders for an interim injunction, that does not mean the reverse onus is irrelevant in assessing whether there is a serious question to be tried: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726; 184 IR 333 at [24]. Account could be taken of the ultimate availability of the presumption in s 361(1) in assessing the strength of the case of an applicant seeking interlocutory relief: Police Federation of Australia v Nixon [2008] FCA 467; 168 FCR 340 at [69].
23 The applicants submitted there was no doubt that the conduct of Metro Trains toward Mr Car constituted "adverse action" for the purposes of s 342 of the Fair Work Act in that "dismissal" of an employee was an identified form of adverse action in item 1(a) of the table in s 342(1). The applicants submitted that there was also a serious question to be tried that the conduct undertaken by Metro Trains was undertaken for reasons that included that Mr Car was a delegate and/or he engaged in industrial activities, or exercised workplace rights.
24 Mr Car was a delegate of the first applicant union. Accordingly, pursuant to s 12, Mr Car was an "officer" of an organisation for the purposes of s 346(a). The applicants submitted the protection afforded by s 346(a) was not confined to the mere status of a delegate. The dismissal of a delegate may be for a proscribed reason if the employer was motivated by dislike of the manner in which the delegate has performed his or her duties as a delegate, or of the activities carried out by the delegate: Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627; 100 IR 383 at [37].
25 The applicants submitted the actions of Mr Car from 25 to 27 March 2019 in distributing the MSD petition and having conversations with Metro Trains employees at the request of the first applicant union constituted an "industrial activity" at least for the purposes of ss 347(b)(i)-(v). The actions of Mr Car also, the applicants submitted, constituted the exercise of workplace rights for the purposes of s 341. As a delegate, Mr Car had a role or responsibility in distributing a MSD petition for the purposes of evidence for a MSD under s 236 and doing so involved participation in a process under a workplace law.
26 Although it was not set out in Mr Car's termination letter, the reason for dismissal given by Metro Trains at the meeting on 27 March 2019 was that Mr Car was "dishonest" about his sleep apnoea on his Category 1 rail medical assessment. The applicants submitted there was at least a serious question to be tried as to whether that was the true reason or whether, in addition, the reasons for the dismissal included the proscribed reasons identified in the application, in light of:
a. The timing of Mr Car's termination in that he was dismissed immediately after his success, in the role of union delegate, in obtaining a large number of signatures for the MSD petition and his involvement in the union campaign intensifying.
b. The dismissal occurred in circumstances in which comments had been made to Mr Car and other employees by managers critical of the union and its delegates, critical of the union's campaign and discouraging membership of the RTBU.
c. The reason given was weak in that an error in the completion of form for the purposes of a medical assessment was unlikely to be considered justification for termination of employment, particularly where the medical condition was previously disclosed.
d. The timing of the termination in that MTS was on notice for at least seven days that Mr Car had incorrectly filled out his Category 1 Rail Medical but did not act to terminate his employment until after Mr Car's involvement in circulating the MSD petition.
27 The applicants submitted there was a serious question as to whether, following cross-examination and discovery, a finding of fact will be made that at least one of the reasons for the conduct of Metro Trains against Mr Car was that he was a delegate, engaged in industrial activity and/or exercised workplace rights: see the approach adopted in G & K O'Connor Pty Ltd at [32].
28 The applicants submitted the balance of convenience favoured the granting of the interlocutory relief sought, including for the following reasons:
a. The obvious consequence of dismissal was that Mr Car was unemployed and without income and will suffer financial and personal hardship of meeting his personal living expenses without the earnings he derived from employment. Further, Mr Car derived a great sense of pride in working with MTS and, prior to his termination he had turned down other work to continue working with MTS.
b. Mr Car was on a training course known as "CJC-T Upskilling" which will allow him to work as a Customer Journey Coordinator - Trains. This course is the only one of its kind at present and deprivation of the opportunity to complete the course will inhibit his career progression and skill development.
c. Mr Car was unable to continue to exercise his workplace rights at MTS as an RTBU delegate, a role in which he enjoys and wishes to continue pursuing. The RTBU is presently seeking to make an enterprise agreement with MTS and its industrial presence and ability to continue campaigning for a MSD has been significantly curtailed by the termination of its delegate.
d. There was no prejudice to MTS if the injunction were granted. The obligation to pay wages to Mr Car could lead to no hardship to MTS in circumstances where it will gain the benefit of Mr Car continuing to perform work should his employment be continued: Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd (2000) 100 IR 383 at [57].
29 Damages in this matter were not an adequate remedy, the applicants submitted. The termination of his employment were, it was submitted, likely to have a personal and psychological impact on Mr Car as a result of his forced unemployment: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix Pty Ltd [2018] FCA 1879 at [32]. Further, the applicants submitted that Mr Car was likely to lose the benefit of participating in the training course, and that the damage to the position of the first applicant union within the workplace, and its campaign, were not able to be remedied by any final relief available in the proceedings.
30 The applicants submitted the Court should not be reluctant to make the interlocutory order sought. The courts were no longer set against the making or orders which have the effect of reinstating an employee on an interim basis: Quinn v Overland [2010] FCA 799; 199 IR 40 at [95]-[104]; Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at [28]; DP World Melbourne Limited v Maritime Union of Australia [2014] FCA 275 at [42].
31 The respondent submitted Mr Car's employment was terminated, within the probation period of his employment, because the respondent formed the view that he was dishonest in completing crucial health assessment documentation which had to be completed in respect of his employment. The respondent submitted that the applicants' case for final relief was extremely weak, that the balance of convenience did not support an order reinstating the employment relationship pending a final determination of the proceedings, and that the interim application should therefore be dismissed.
32 The respondent submitted that Mr Dickinson was the decision maker and it was his reasons for terminating Mr Car's employment that the Court needed to consider.
33 The respondent accepted that for the purposes of this application the availability of s 361 on a final hearing is a matter to consider in assessing the strength of the applicants' prima facie case: Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582; 266 IR 185 at [77]-[78].
34 However, in light of the objective evidence - including the fact that the February questionnaire was completed differently to the January questionnaire - and Mr Car's own evidence that he is "not sure why" he completed the questionnaires differently, Mr Dickinson's evidence on this issue was plausible and otherwise not inherently improbable. In those circumstances, there was no real reason to doubt that it would not be accepted by the Court at a final hearing; in which case the respondent would discharge its burden and rebut the presumption under s 361 of the Fair Work Act: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [44]-[45] and at [126]-[128].
35 The respondent submitted the evidence also demonstrated that the link between Mr Car's protectable interests under the Fair Work Act and the termination of his employment was extremely weak. In that regard it was submitted Mr Dickinson did not know of any of the following matters until after Mr Car's employment had been terminated:
a. that Mr Car was a member or delegate of the RTBU;
b. that the RTBU and the respondent's employees were seeking a MSD and that Mr Car was involved in compiling a petition for that purpose; or
c. that there was a meeting on 22 March 2019 between Mr Car, Trent Hunter and Alex Claassens of the RTBU.
(Footnotes omitted.)
36 Moreover, the respondent submitted, none of the evidence the applicants relied on demonstrated a link between these matters and Mr Dickinson. The highest the evidence rose was Mr Car's own statements in the meeting on 27 March 2019 touching upon these kinds of matters. These matters were immediately denied by Mr Dickinson.
37 Accordingly, the respondent submitted, it was difficult to sustain an argument that Mr Dickinson was motivated to terminate Mr Car's employment based on matters he did not know. That simply served to further demonstrate the plausibility of Mr Dickinson's evidence.
38 The respondent submitted the issue was whether Mr Dickinson believed that Mr Car had been dishonest: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273.
39 On the basis of the current evidence, the respondent submitted, the applicants' prima facie case was extremely weak and was likely to be easily met at a final hearing.
40 The respondent accepted for the purposes of the current application that the longstanding reluctance on the part of courts to order specific performance of employment contracts had eased somewhat with the introduction of statutory provisions such as s 545 of the Fair Work Act: see Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988 at [27] (citing Transfield Construction Pty Ltd at [28] and Quinn v Overland at 59-61).
41 However, the respondent submitted, there were strong reasons why the Court should not order reinstatement even on an interim basis.
42 First, the respondent's reason for the termination of Mr Car's employment was due to his dishonesty. That dishonesty has resulted in a breakdown in trust and confidence; a matter of significance in considering whether reinstatement was an appropriate remedy (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) IR 186 at 191).
43 Second, there were no matters that Mr Car pointed to in his evidence that could not be remedied by an award of damages, or for which he must be employed by the respondent in order to carry out. In that regard, the respondent submitted Mr Car did not give evidence that:
a. he could not make the payments he identifies in paragraph [44] without pay from the respondent (noting that most significant appeared not to be an expense, but a saving);
b. he could not find alternative employment, or even that he had applied for such employment and had been rejected; or
c. he could not assist the RTBU in its attempts to obtain an MSD notwithstanding that his employment had terminated and/or if it was not reinstated on an interim basis. There was no evidence to demonstrate that Mr Car could not "obtain signatures" outside the workplace. Mr Car's own evidence was that arrangements had been made at times outside the workplace to discuss the matters related to the MSD.
44 Third, there were no matters that the first applicant union pointed to that demonstrated that it could not continue to pursue its MSD with respect to the respondent. The evidence demonstrated no issue with access to the respondent's workplace. There was no evidence from the union that demonstrated that another of its members employed by the Respondent at the workplace was not willing to perform the tasks that it said Mr Car was performing, either generally or because Mr Car's employment was terminated and "they fear the same."
45 Fourth, and in any event, on the evidence there was little or no utility in the first applicant union seeking a MSD. The respondent's workforce, including those performing the work Mr Car was doing, was already covered by an enterprise agreement that expired on 22 August 2022. Under s 58 of the Fair Work Act, only one agreement can apply to an employee at a particular time.