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[2000] FCA 1739
Federal Court of Australia
2000-11-20
Madgwick J
Original judgment source is linked above.
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 The application before the Court is for the imposition of penalties on the respondent, for orders requiring the respondent to reinstate the second applicant and also for ancillary orders. Factual background 2 The claim arises out of the summary dismissal by the respondent of the second applicant, Ms Maddox, on 8 November 2000 and out of alleged unlawful discrimination against her, since April this year, on account of her membership of the first applicant, the Union, and on account of her being at least a de facto "delegate" of the Union, within the meaning of s 298L(1)(a) of the Workplace Relations Act 1996 (Cth) ("the Act"). 3 The evidence shows that the second applicant was employed by the respondent on 25 October 1999, as a customer service agent.
4 The respondent has a contract with Telstra Corporation Limited to answer some of Telstra's general and billing enquiries for residential customers and in the course of answering customer's queries to sell Telstra's services to them. Since June 2000, the respondent also performed service connections and disconnections for Telstra. 5 Agents such as the second applicant are responsible for answering customer queries themselves, if they can, or if not, to transfer the customer to the appropriate section within Telstra. 6 Ms Maddox joined the first applicant in about March 2000. The evidence is that she "effectively" became the Union delegate immediately, principally by seeking to recruit other employees of the respondent to become members of the Union and dealing with matters of liaison between Union members and the employed officers of the Union. 7 From May 2000, Ms Maddox, was counselled by her immediate superior for failure to reach targets set for average call handling times and sales targets. In July 2000, the supervisor counselled her in relation to two alleged "product slamming" complaints. Product slamming is the practice engaged in from time to time by some employees, doing like work to that of the second applicant, of providing additional services to Telstra customers without their consent. Such practice may be detected or investigated, as the agents are monitored by supervisory staff listening in from time to time on the conversations they are having with customers. 8 In July 2000, Ms Maddox was also subjected to a disciplinary hearing in respect of "call dumping". Call dumping occurs when an agent is unable to handle a query to finality, but some (other) section of Telstra can, and instead of introducing the customer over the telephone to the appropriate source of advice or assistance, the agent simply dumps the call in a queue for the relevant extension. There are variations of this practice which do not need to be discussed here. 9 Ms Maddox sought to have a full time Union officer assist her in this disciplinary hearing. The right to have this assistance was denied by the respondent. The Union approached the Australian Industrial Relations Commission, which recommended that the respondent should permit the participation of the Union officer. The respondent declined to accept this recommendation. In circumstances, which I think are somewhat disputed, Ms Maddox was issued with a written warning as to the call dumping allegations on 14 August 2000. 10 About a week later, Ms Maddox was formally counselled again in relation to some further complaints of alleged product slamming. From August through to October, her immediate supervisor, Ms McGarrie, again counselled her in relation to call handling times and sales targets. On 16 October 2000, the respondent wrote to Ms Maddox concerning alleged remarks she made to Ms McGarrie, that she would break the arms of people who took material off Union notice boards. 11 On 24 October 2000, Ms Maddox's performance was discussed with her by Ms Walklett, the Human Resources manager at the relevant call centre, and the immediate superior to Ms McGarrie. Two days later there was a complaint about her operating her mobile telephone whilst in the centre and thereby causing discomfort to other employees because of the sensitivity of their call receiving equipment. On the same day, she received what was called a final written warning for allegedly having continued to engage in the practice of call dumping. 12 Finally, Ms Maddox's employment was summarily terminated on 8 November 2000, in circumstances in which the respondent alleged that she had knowingly taken two more days of leave than she was entitled to, when her entitlements had been made clear to her. The second applicant had sought to rely on an earlier leave approval form which, so it was said, she knew had been superseded by later consensual adjustments to her leave entitlements. 13 There is some background of preference, by the respondent, for not being closely involved with the Union in relation to the their industrial or, in the current phrase, workplace relations. 14 The applicants have the benefit of a presumption under s 298V of the Act that the alleged contraventions of the Act by the respondent, amounting to conduct carried out for a particular reason or with a particular intent, were carried out for that reason or with that intent, unless the respondent proves otherwise. As a result of this presumption as well as the evidence filed by the applicants, there is a prima facie case made out. The applicants' evidence would suggest a prima facie case of some force, at least in the sense that there are real questions to be tried. 15 On the other hand, the respondent has put on a number of affidavits and in particular the evidence of witnesses which would tend to confirm the veracity of its complaints about the leave incident, which actually provoked the termination of Ms Maddox's employment. If that evidence were believed, there would be a seriously arguable case that, even if the respondent had breached the Act, Ms Maddox should not be reinstated in her employment. Claim for interlocutory reinstatement 16 The issue as to interlocutory relief became a question as to whether, on an interim basis, Ms Maddox should be reinstated. After some indications of my tentative approach to the matter, Mr Murdoch of Queens Counsel who appears for the respondent, informed the Court that his client would undertake to pay Ms Maddox an amount equal to her average earnings for all entitlements over the last six months until the final hearing to avoid Ms Maddox being reinstated on an interim basis, on the proviso that the parties would co-operate in trying to arrange a hearing with as much urgency as was possible in the circumstances. The applicants on their part also regard a final hearing as urgent, as do I. That co-operation has been forthcoming. For the sake of ease and clarity I will embody the undertaking of the respondent in an order of the Court. 17 Counsel for the applicants says that, unless Ms Maddox is reinstated, there will have been removed from the workplace the most active Union member. The applicants claim, that if they are right in their claims, for so long as Ms Maddox is not reinstated, a situation approaching inducement by the respondent of its employees to cease being members of the Union, contrary to s 298M of the Act, would be involved. It is also claimed that there would, in general, be serious prejudice to the Union which would be denied an effective presence in the workplace. Also, it is claimed there would be inconvenience for the other members of the Union at the relevant workplace. 18 Counsel for the respondent stresses the lengthy history of performance issues and the likely effect upon morale if the second applicant were reinstated. Of greater force however, it seems to me, is the consideration that, if the respondent's witnesses are right and failing some explanation from Ms Maddox, which might yet arrive, she is guilty in relation to the leave incident, that might be conduct which might cause any employer to doubt her trustworthiness, so that an issue of trust and confidence would arise. I am aware that Gray J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627, suggested that in the case of a corporate employer, industrial relationships of trust and confidence are of less importance than in the case of a personal employer. Be that as it may, the evidence before me suggests that the managers and supervisors of the second applicant bona fide believe that her performance has been lacking over a substantial period of time and that she has been guilty of one incident of a direct, and it seems to me, serious breach of faith in relation to the respondent. An employer is entitled to rely on the bona fide impressions of its managers unless they break the law. 19 On the other hand, an employee and the Union are entitled to expect that the law will be observed. The relevant industrial laws have been deemed by Parliament appropriately to be drawn in firm terms. An employer may not in a particular variety of ways injure an employee if even one of the employer's motivations is a prohibited one. 20 If Ms Maddox is reinstated pending the hearing of this matter then realistically, it seems to me, there is a risk of serious disputation between the parties arising from the heightened sensitivities of the parties or their agents as to matters of legal or factual significance in the case. If she is not reinstated, there will be nothing to stop Ms Maddox continuing, though not at the workplace, to serve the Union and her fellow Union members. It is true that her recruiting activities of new members are likely to be impaired, on a temporary basis, assuming she wins the case. However, if the applicants win the case, this would necessarily involve, as a practical matter, the vindication of the bulk of Ms Maddox's complaints. If those complaints are vindicated, then it seems to me the practical likelihood would be of a substantial fillip for the Union and Ms Maddox in relation to their efforts to unionise the respondent's workplace. 21 If the respondents win the case, they will be substantially out of pocket through having paid Ms Maddox, as her ability to repay the amount paid to her would appear to be very limited.
22 I bear in mind that, in a case where a person has been wrongfully dismissed through what I might call illegal anti-union discrimination, reinstatement is really the primary remedy and there has been a number of cases of interlocutory reinstatement. However, I do not consider that, on an interlocutory basis, where both sides can put forward a considerable prima facie case, the Court should do more than is necessary to adjust matters, on a reasonably fair and convenient basis pending the final determination of the parties' rights and liabilities. In some cases that will necessitate interlocutory reinstatement. In others it may not. In this case I think that it is enough to order that Ms Maddox be paid pending the outcome of the hearing and to order that the matter be dealt with as one of urgency. Disposition 23 Accordingly, I order that this case be given an expedited hearing and I refer to the earlier orders as to a timetable agreed on by the parties. 24 I reserve my decision, as I have indicated, on venue and will consult the Queensland list judge, the docket judge and the Chief Justice as to the most useful and appropriate way of managing the case to have it promptly heard. 25 On the usual undertakings as to damages given by the second applicant by her counsel, I order that until the hearing of the matter the respondent continue to pay to the second applicant on the usual fortnightly pay days, a sum equal to her average fortnightly earnings from all sources with the respondent over the last six months. The parties may have liberty to apply as to that order if there is any difficulty about it, but I expect a common sense attitude to prevail. 26 My Associate will be in touch with the parties when I am clearer as to what the appropriate course is as to venue, who is to be the docket judge, and so on. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Solicitor for the Applicants: Maurice Blackburn Cashman
Community & Public Sector Union
Stellar Call Centres Pty Ltd