Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 112 of 2014

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

JUDGE: RANGIAH J DATE: 10 APRIL 2014 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant seeks an interim injunction requiring the respondent to reinstate Vernon Kemp to his former employment as a warehouse officer at the North Goonyella coal mine. 2 In the principal proceeding, the applicant alleges that the respondent contravened s 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against Mr Kemp, namely, terminating his employment because of his physical disability, Type 1 diabetes. 3 Section 351 of the Fair Work Act provides relevantly: (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; 4 The respondent denies any contravention of s 351(1). It alleges that it terminated Mr Kemp's employment because he failed to comply with management plans put in place by doctors to control his risk of suffering hypoglycaemic episodes and because such management plans were, in any event, ineffective. It submits that these reasons do not amount to termination "because of" Mr Kemp's diabetes. It also claims that the termination falls within two of the exceptions set out in s 351(2): that the action is not unlawful under relevant anti-discrimination laws; and because it was taken because of inherent requirements of the particular position concerned. 5 The parties are agreed that the principles in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 82 apply to the present application. The applicant must satisfy the Court that: (a) a prima facie case in the sense of a "sufficiently likelihood of success to justify in the circumstances the preservation of the status quo pending the trial"; and (b) that the balance of convenience favours the applicant. 6 In CEPU v Blue Star Pacific Proprietary Limited [2009] FCA 726 at [21], Greenwood J summarised the applicable principles as follows: The organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. 7 The respondent emphasises the requirement that the applicant must show that damages are not an adequate remedy. 8 In this case, the status quo is that Mr Kemp is not employed by the respondent. The applicant seeks a mandatory interim injunction that will disturb the status quo by returning Mr Kemp to his former employment. The applicant must therefore demonstrate a sufficient likelihood of success to justify the disturbance of the status quo pending the trial. 9 I accept that there is a prima facie case that the respondent has contravened s 351(1). The respondent's concession that one of the reasons for the termination was that the plan to manage Mr Kemp's diabetes was ineffective suggests that the termination was, in part, "because of… physical… disability". The respondent's argument seeks to distinguish between termination because of physical disability and termination because of the safety risk stemming from the risk of hypoglycaemic episodes. Against this, it is arguable that the distinction is illusory or, at least, that it is a fine one. 10 At trial, the onus will be on the respondent to demonstrate the existence of the exceptions in s 351(2). 11 There is no doubt that the respondent and its senior site executives have obligations for the safety of its employees pursuant to s 41 and s 42 of the Coal Mining Safety and Health Act 1999 (Qld). These obligations include ensuring that the risk to employees is at an acceptable level. The level of risk from coal mining operations is, pursuant to s 29, at an acceptable level if it is within acceptable limits and as low as reasonably achievable. The health and safety obligations are not absolute and are discharged if the operator and its senior site executives take reasonable precautions and exercise proper diligence to ensure that the obligation is discharged: s 38(3). 12 It is apparent that the respondent considered that the risk posed to Mr Kemp and other employees by his diabetes was not an acceptable level of risk. This opinion is not determinative because the decision as to whether his employment was lawfully terminated is ultimately one for the Court. Nevertheless, the employer's view must be given substantial weight. 13 For present purposes, while I am satisfied that the applicant has established a prima facie case that s 351(1) has been contravened, I am unable to reach any further conclusion as to the strength or weakness of the case. 14 It is next necessary to consider the balance of convenience. 15 The crucial factor is the level of risk that Mr Kemp may experience further hypoglycaemic episodes and create a risk of injury to himself and other workers. The respondent pointed to the fact that Mr Kemp has had some eight hypoglycaemic episodes between August 2011 and July 2013 while he was at work. In July 2013, he suffered a loss of consciousness and he has not returned to work between that date and the termination of his employment on 3 March 2014. These hypoglycaemic episodes occurred despite doctors certifying that he was fit for his employment subject to complying with certain requirements for the monitoring and treatment of his diabetes. There is also some suggestion that Mr Kemp did not fully comply with those medical requirements at times. I consider that the risk to health and safety posed by the risk of further hypoglycaemic episodes should be given significant weight in considering the balance of convenience. 16 However, the only medical evidence placed before me suggests that Mr Kemp is fit to resume his former work, subject to certain conditions which are now considered appropriate. There is a medical certificate issued by Dr David Parker on 21 January 2014 stating that Mr Kemp: Is fit to undertake the proposed / current position subject to the following restriction(s) (if necessary, outline in management program) Requires ongoing monitoring and management of medical condition Must check glucose at start of shift and every 3 hours whilst working Must carry source of glucose at all times Must check blood sugar prior to operating forklift 17 Dr Parker has been appointed by the respondent as a "nominated medical advisor" pursuant to s 45(1) of the Coal Mining Health and Safety Regulations 2001 (Qld) to carry out, supervise and report on health and safety assessments for the respondent's coal mining workers. Dr Parker took into account the views of Mr Kemp's treating specialist, Dr Grant Cracknell, before issuing his certificate. In two more recent reports dated 17 March 2014 and 28 March 2014, Dr Cracknell confirms that Mr Kemp's risk would be minimised (although, inferentially, not eliminated) by compliance with certain conditions. No medical evidence has been placed before me contradicting the opinions of Dr Parker and Dr Cracknell. 18 Mr Kemp is willing to undertake to the Court that he will comply with the conditions stipulated by Dr Parker, as well as keep a diary recording his compliance with the conditions. 19 In these circumstances, notwithstanding the risks involved, I consider that the balance of convenience favours an injunction requiring the respondent to re-employ Mr Kemp until the trial. 20 I wish to make it clear that the employment relationship between the respondent and Mr Kemp is ultimately one for them. That relationship requires the respondent to consider its own statutory obligations and act accordingly. This will require it to consider matters including the duties that it considers are able to be safely performed by Mr Kemp. However, I would expect that in making any such decisions the respondent will act in good faith. 21 I take into account that Mr Kemp will suffer considerable hardship if he is not re-employed pending trial. Apart from during his hypoglycaemic episodes, there is no suggestion that he has not competently carried out his work. Mr Kemp and his wife have very significant medical expenses, a mortgage and another loan that they will not be able to service without his income. I do not consider that the losses - emotional, physical and financial - that they will suffer as a result can be adequately compensated by an award of compensation. 22 Mr Kemp was employed by the respondent for some nine years before his termination. He has not been able to obtain other work. It is necessary to also take into account the frustration and emotional and psychological aspects of Mr Kemp's inability to work. 23 There will be some delay before the matter can proceed to trial. I have set the trial down for hearing over three days, commencing on 21 July 2014. There may be some further delay before a judgment is given. 24 I consider that, in all the circumstances, the balance of convenience favours the re-employment of Mr Kemp by the respondent, subject to the undertakings and conditions set out in the order that I propose to make, pending the completion of the proceeding. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.