DP World Melbourne Limited v Maritime Union of Australia

REASONS FOR JUDGMENT 1 On 10 February 2014, the Maritime Union of Australia ('MUA') and Mr Johnston, as applicants, brought proceedings seeking relief in relation to the dismissal of Mr Johnston from his employment. They allege, amongst other things, that by dismissing Mr Johnston his employer, DP World Melbourne Limited ('DP World'), contravened Pt 3-1 of the Fair Work Act 2009 (Cth) ('the Act'), taking adverse action against Mr Johnston because he was a union delegate and had exercised various workplace rights. The MUA and Mr Johnston sought interim orders requiring DP World to offer normal work duties to Mr Johnston until the hearing and determination of the proceedings or further order. 2 The import of the evidence in support of the interim orders is summarised in the reasons of the primary judge. Evidence was led as to the prejudice that Mr Johnston would suffer if he were not reinstated pending trial, namely, loss of wages, loss of purpose and satisfaction derived from working, and inability to perform his role as union delegate. 3 Evidence was led opposing the interim relief sought. I do not need to go through the detail of that evidence, other than to indicate that DP World filed an affidavit of Mr Andrew Jena, the General Manager of DP World operations. 4 In addition to deposing to his version of the relevant events leading to the dismissal of Mr Johnston, Mr Jena deposed to the reasons why he dismissed Mr Johnston and denied that the reasons alleged by the MUA and Mr Johnston formed any part of his reasoning process. He also deposed to the prejudice that DP World would suffer if Mr Johnston were reinstated pending trial, including undermining the authority of DP World as an employer and the impact on third parties. 5 On 18 February 2014, the primary judge made an order, subject to certain undertakings, for an interlocutory injunction reinstating Mr Johnston to his former employment with DP World until trial or further order: see Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 134. 6 On 3 March 2014, DP World filed this application for leave to appeal from that order, which is the application I now hear. 7 The general approach in considering the grant of leave is that identified in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: (a) whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered; and (b) whether substantial injustice will result if leave is refused, supposing the decision to be wrong. 8 I say "general approach" because various circumstances may arise where leave may be granted even though the test identified in DÉcor 33 FCR 397 is not satisfied. 9 In this application for leave, the Court is dealing with a discretionary decision of the primary judge. It is important to keep in mind, as we were reminded by Gummow J in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 387, recently approved by the Full Court in Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [20], that it is not a matter of saying the discretion miscarried because the result strikes one as harsh or because one might have exercised the discretion differently. Furthermore, it is not enough that the judges in the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. 10 It is to be recalled that the decision to grant or not to grant an interlocutory injunction, when considering the balance of convenience, is a discretionary one. It has been accepted by the parties that it is incumbent upon DP World to demonstrate that the orders of the primary judge were vitiated by error of the kind explained in the statement of the majority of the High Court (Dixon, Evatt and McTiernan JJ) in House v The King (1936) 55 CLR 499 at 504-505: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. 11 I also refer to Pearlow v Pearlow (1953) 90 CLR 70, relied upon by DP World, where Sir Owen Dixon made the following comments (at 76): But while an appellate court will not set aside the exercise of a discretion by a primary judge on the ground that it disagrees with him, it is a mistake to limit the power of the court of appeal to cases where the judge has acted on some erroneous principle of law. 12 The Chief Justice went on quoting Evans v Bartlam [1937] AC 473 at 480: Appellate jurisdiction is always statutory: there is in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of a judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it is both the power and the duty to remedy it. 13 It is upon the principles articulated in both those authorities of House 55 CLR 499 and Pearlow 90 CLR 90 that I proceed. 14 However, I should first outline some salient facts, certain aspects of the hearing itself, and record the approach taken by the primary judge. 15 Going then first to the salient facts placed before the Court. DP World operates a stevedore and services business at the West Swanson Terminal in Melbourne. The workforce of DP World in the operations area has 563 male staff and only 23 female staff. The vast majority of the stevedoring workers employed by DP World are members of the MUA. Mr Johnston is an employee at DP World and a delegate of the MUA. Ms Annette Coombe is a female employee of DP World. On 18 July 2013, another female employee of DP World, Ms Sharon Bowker, was sitting in the amenities area with several other workers when it was alleged she saw and heard another employee, Mr Stewart Bennier, say words to the following effect: Who does Stephen Templer think he is saying I'm not a team player when he's fucking Annette Coombe. 16 Ms Bowker told Ms Coombe about Mr Bennier's remark. On 31 July 2013, Ms Coombe made a written complaint to management about the remark. This led to DP World commencing an investigation into Ms Coombe's complaint. On 6 August 2013, Mr Bennier attended an interview with management. He was accompanied by a Mr Johnston. They had spoken together shortly before the interview. At the interview, Mr Bennier denied that he had said anything to the effect alleged. DP World put to Mr Bennier and Ms Bowker that Mr Bennier had in fact made the impudent remark. Subsequently, on 13 August 2013, Mr Bennier had another meeting with DP World, this time in the presence of Mr David Schliebs, an organiser of the MUA, in which he admitted to having said the things that Ms Bowker had attributed to him, in which he said that Mr Johnston had told him to lie about it before the first interview. 17 Following the first interview on 6 August, Mr Johnston went to the amenities area confronting Ms Bowker. According to Ms Bowker, Mr Johnston said words to the following effect in the presence of several workers in the room: Sharon, go and get yourself a solicitor. You are going to find yourself in court. I have spoken to Dave he said to let you know that the MUA is not going to represent you. You're a fucking lagger, never in my life have I ever been upstairs and had someone's name mentioned to me. I saw what you did, a formal complaint about Stewart and the shit that is going on with him in the workplace. You have gone upstairs and put in a complaint with Stephen Templer supporting a supervisor. I hate people like you, you never involve management, you're a fucking lagger. 18 DP World arranged for the matters to be investigated by an external organisation, Papillon Consulting Group Pty Ltd. As a result of these incidents, Ms Bowker and Ms Coombe both went on stress leave for several weeks. After the August incident, there was graffiti at the dock which read "fucking lagger". DP World had to move Ms Coombe to special clerical duties and to roster another worker, Mr Stephen Zwarts to work with Ms Bowker with a specific role of protecting her from harassment. On 6 January 2014, Papillon produced a report finding that Mr Johnston had told Mr Bennier to lie to DP World, that he had lied to DP World when later confronted about this, and that he intimidated and abused Ms Bowker, calling her a "fucking lagger" for providing information to DP World in the investigation into Mr Bennier's conduct. 19 After considering the contents of the report and consulting with human resources and other senior managers, Mr Andrew Jena was satisfied that Mr Johnston had committed serious misconduct. On 28 January 2014, having given Mr Johnston an opportunity to respond to the allegations, and having considered the matters raised by and on behalf of Mr Johnston, Mr Jena dismissed him effective immediately for serious misconduct. On 10 February 2014, a letter was sent to Mr Johnston confirming the decision, and the reasons for it. 20 I should interpolate that it has been necessary to identify these salient facts and describe specifically the comments that are alleged to have been made between the various players, because quite rightly it has been indicated by DP World that these matters are serious. Further, a description of the nature of the comments is important because if they are true they would demonstrate serious misconduct. 21 This is not to prejudge or say anything about whether or not they are true, but merely to say the nature of the allegations is serious. 22 Going then to the course of the hearing before the primary judge. DP World conceded that there was a serious question to be tried, but submitted in its written submissions that the Court should not conclude that the case brought by the MUA and Mr Johnston was a strong one. However, in the oral presentation the parties, emphasis was placed upon balance of convenience considerations. Specifically, the issue focused upon was whether or not the balance of convenience favoured returning Mr Johnston into the workplace. In that regard, having offered to pay Mr Johnston, DP World argued that with the financial prejudice to Mr Johnston removed, the prejudice DP World identified by Mr Jena was very significant. 23 The hearing needed to be adjourned for a period of time to allow the MUA and Mr Johnston time to respond to some of the matters that were raised in the affidavit material of Mr Jena. On 18 February 2014, the MUA and Mr Johnston filed additional affidavits in response to that material. At the adjourned hearing which occurred on 18 February 2014, and at the invitation of the primary judge with no objection from the parties, the two female employees, Ms Bowker and Ms Coombe, addressed the Court from the bar table and expressed their concerns about the effect that the return of Mr Johnston would have on the workplace. 24 After hearing comments from those two women, the primary judge then indicated that he was inclined to take the risk of putting Mr Johnston back to his employment. The primary judge thought that maybe the threat he proposed making of Mr Johnson coming back to Court if the alleged behaviour continued would be enough to get people to behave better. Ms Bowker and Ms Coombe responded to this, questioning and contesting the primary judge's suggested approach on the basis of their experience in the workplace and the culture and mentality at the waterfront. Nevertheless, at the conclusion of the hearing on 18 February 2014, the primary judge made the temporary reinstatement order on the basis of undertakings given by the MUA and Mr Johnston (which will be described later). 25 I now turn to the primary judge's reasons before dealing with the specific complaints raised by DP World. 26 I should indicate at the outset that whilst minds may differ as to the correctness or otherwise of the outcome, it cannot be said that the interim reinstatement with the conditions imposed was so unjust that it would inevitably lead to the inference that the primary judge's discretion had miscarried. 27 It also cannot be said that the Court's discretion was limited in the way suggested by DP World by reference to the final relief and the availability of an interim reinstatement order. I do not consider the Court is so confined in considering whether it is appropriate to grant the interlocutory relief of the type granted by the primary judge. 28 In the course of his reasons, the primary judge made a number of important comments, fully appreciating the task he had to undertake. Whatever he may have indicated in the course of argument, this does not distract from the reasoning process disclosed in his reasons for decision. 29 The primary judge looked at the material filed by the applicants before him and the concerns of Ms Bowker and Ms Coombe. At [26] the primary judge recorded the assistance he had been given by Ms Bowker and Ms Coombe: The Court has received particular assistance from the oral statements of Ms Bowker and Ms Coombe. It must be acknowledged that they made these statements in circumstances where it was clearly difficult for them to do so. The orders of the Court reinstating Mr Johnston for the moment should not be seen in any way to diminish respect for their situation. It is obvious to the Court that they are, whether justifiably or not is a matter to be determined in due course, feeling threatened and fearful. Nothing that the Court does will be permitted to increase those feelings. 30 The primary judge said at [19], in the last two sentences: In view of what I have been told, it is clear the court must proceed with great caution and concern. It would be wrong for orders of the court to inflame the situation, increase the danger threatening conduct in the workplace. 31 The primary judge then considered the proffered undertakings by Mr Johnston and the MUA, in [21] to [24]: 21 The MUA has agreed to distribute and explain orally to its members at DP the reasons for any order made by the Court to temporarily reinstate Mr Johnston. The explanation would emphasise that the reinstatement is temporary. The order is made only so that the Court can conduct a full trial under circumstances where the original conditions of employment are left in place. Secondly, such an explanation would emphasise that the reinstatement makes no judgment about the rights and wrongs of the arguments of the parties in the proceedings, but simply allows the Court time to conduct a proper hearing. Finally, and most importantly, the explanation would emphasise that Mr Johnston's reinstatement can be revoked by the Court at any time if there is any evidence that the reinstatement is creating the trouble about which Mr Jena, Ms Coombe and Mr Bowker expressed concern. 22 Mr Johnston offered an undertaking to the Court that he would accept a roster, without loss of income, whereby he would work only at the Intermodal plant. He also offered an undertaking to submit to an arrangement whereby he would not be rostered to work with Ms Coombe or Ms Bowker, or to communicate with them, Mr Bennier or Mr Zwarts, or procure any other person to do so. 23 Mr Johnston also offered an undertaking not to undertake activities as a union delegate, save for those relating to negotiations for the new enterprise agreement. 24 It would do justice between the parties at this stage to reinstate Mr Johnston on these undertakings. This is particularly so because the MUA undertakes to explain to the employees of DP at the workplace the basis upon which the order is made, and the fragility of the order that Mr Johnston return to work. 32 The primary judge's conclusion, expressed in [24] of doing justice, was not just a reference to the opinions of those who were called by Mr Johnston and the MUA, but was a conclusion reached after addressing both sides of the argument and in my view, considering the undertakings given. Then, very significantly, the primary judge said at [25]: It must be stressed, the DP or any other interested person, can return to the court at any time and to present an argument that Mr Johnston's reinstatement has in fact resulted in harassment, intimidation and bullying. If that is established, the court will have no hesitation in discharging the order. 33 I have set out his Honour's approach in some detail, because in my view it demonstrates an approach showing no error of principle and an attempt to balance the competing interests of the parties in difficult circumstances. The competing interests and different circumstances were both appreciated by the primary judge. 34 With this background, the starting point was to consider the need to preserve the status quo (that is, before the time of the dismissal of Mr Johnston) until the competing contentions of the parties could be fully heard. The Court should seek to maintain the position that would enable the Court to be in a position to make the appropriate final orders. The Court should adopt a minimalist interventionist approach, one attempting to reach the most fair, just and convenient course in all the circumstances. 35 In undertaking these tasks, the Court would normally assess the strength of the prima facie case. However, in considering the interlocutory application, it seems, at least in the oral submissions made by the parties, the Court was asked to focus on the balance of convenience. 36 This does not mean the Court does not have a duty to undertake the task before it, namely to consider the prima facie case and the balance of convenience. However, having regard to the factual matters in dispute, and despite what Senior Counsel for DP World had put to me today in relation to the nature of dispute, it would be difficult to conclude at the interlocutory stage whether the claim brought in the proceedings was strong or weak or somewhere in-between. 37 I do not consider, in the situation confronting the primary judge, any material error was made in immediately proceeding to assess the balance of convenience without further addressing the strength of the claim. The primary judge was clearly aware of the seriousness of the allegations of DP World and on that basis, proceeded to hear the interlocutory application. The primary judge certainly did not regard the allegations made by DP World against Mr Johnston as being weak. In any event, I am not convinced that it would have made any difference, even if the primary judge had taken the view as pressed by DP World as to the merits of its case. 38 I now address, to the extent to which I have not already dealt with them, the contentions of DP World in support of its application for leave to appeal. 39 I do not consider that the primary judge failed to do the minimum necessary to preserve the subject matter of the proceedings until trial. The trial can still proceed. Each party's position can be vindicated, if successful. The conditions imposed by the acceptance of the undertakings by the primary judge were open to be made and were reasonable in light of the workplace and the circumstances of Mr Johnston's employment. 40 In my view, the primary judge weighed the prejudice to Mr Johnston (at [12]), against the prejudice to DP World and Ms Coombe and Ms Bowker at [13] to [19]. 41 It may be said the primary judge was too much swayed by the need for Mr Johnston to be involved in gainful employment, other than just being paid. This is a question of weight and impression. The statutory provisions of s 545 of the Act are relevant, and reinstatement, even against the wishes of an employer, may well be the appropriate final remedy. 42 As Tracey J said in Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Limited [2012] FCA 988 at [27], there has been a long standing reluctance on the part of common law courts to order specific performance of contracts of service or contracts for services. However, as Tracey J also observed, that reluctance has eased with the introduction of statutory provisions such as s 545 of the Act: see Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at [28] and Quinn v Overland (2010) 199 IR 40 at [95] to [99]. 43 In Quinn (2010) 199 IR 40, Bromberg J at [100] to [104] set out some considerations dealing with specific performance and employment contracts and the growing acceptance even at the common law of the right of an employee to perform work: 100 The circumstances of each particular case need to be examined. There ought not be be and there is no longer a fixed rule against specific performance of an employment contract. (citations omitted) 101 Furthermore, the appropriateness of specific performance as a remedy is strengthened by a growing acceptance at common law of the right of an employee to perform work. That recognition has arisen out of changed social attitudes. There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled. 102 As Callinan and Heydon JJ said in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [80]: It may be that in modern times, a desire for what has been called "job satisfaction", and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided. 103 In William Hill Organisation Ltd v Tucker [1999] ICR 291 at 298-299 Morritt LJ (with whom Robert Walker LJ and Stuart Smith LJ concurred) said: But as social conditions have changed the courts have increasingly recognised the importance to the employee of the work, not just the pay. Thus ... Lord Denning MR considered that it was open to a welder to argue that: 'a man has, by reason of an implication in the contract, a right to work. That is, he has a right to have the opportunity of doing his work when it is there to be done.' (Citations omitted). See further the discussion in Downe at [410]-[431] where the right to work was considered in the context of a suspension. The denial of the work that an employee has been contracted to perform was recognised to have an adverse effect on the employee's enjoyment of his or her employment in Foster at [46]-[47]. 104 It has been said that special or exceptional circumstances need to be shown to justify an order for specific performance of an employment contract: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 per Brennan, Dawson and Toohey JJ. However, as is demonstrated in the cases where specific performance has been granted, the burden of that requirement ought not be considered particularly onerous. As the Full Court said in Turner at 193 "cases where continuing obligations and rights are in question might give rise to such special circumstances". 44 In my view, the primary judge obviously had these considerations in mind in exercising his discretion. Further, the primary judge, contrary to the submissions of DP World, did take into account the practical effect of the remedy granted, namely to force an unwilling party to employ Mr Johnston in circumstances where third parties would be adversely affected and where there was some evidence of workplace tensions, bullying and harassment. 45 It is apparent by his concern of the situation and his express reference to these matters that the primary judge considered them. 46 It was also contended by DP World that the primary judge employed reverse logic in turning factors that weighed heavily against the making of the interim reinstatement order (such as the risk of disharmony and further harassment), into factors the primary judge regarded as significant in granting the order, for example, the fragility of the order and the prospect of it being revisited. 47 I do not accept that this is a correct analysis. In my view, what the primary judge was doing was simply undertaking a balancing exercise, finding a way to accommodate the interests of all the parties, and Ms Coombe and Ms Bowker. 48 I can fully understand the feeling by DP World that its authority to manage harassment and bullying at the workplace and the risk of ongoing bullying and harassment has somehow been undermined. I observe also that the trial date has not been set and this must be of a concern of DP World, having regard to the current orders. The parties undoubtedly will and should press for an early hearing and the Court would accommodate such a request so far as the business of the Court allows. 49 The primary judge's orders attempted to deal with all these issues by effectively imposing various conditions on the reinstatement. I do not consider, contrary to the submissions put by DP World, that those conditions placed an unfair or inappropriate onus on an employer for an interim period, having regard to the circumstances of the employment environment. 50 As I have said above, in the circumstances of this case, the conditions imposed by the primary judge on 18 February 2014 were not unreasonable. Significantly, a determination following a trial will vindicate the position of one of the parties. The interim orders are just that, and should not be seen as anything else. The primary judge expressly reserved to the parties, as I have indicated, the opportunity to come before him if circumstances changed. It was contended by DP World that at [25] of the primary judge's reasons, the primary judge placed a substantial hurdle by effectively reversing the onus, so that DP World had to establish that there was harassment, intimidation and bullying. 51 I do not think the primary judge's comments were meant to be taken quite so literally. All the primary judge was indicating was that if circumstances changed, the parties could come back to the Court. There is nothing unusual in this, and sometimes there may be a debate about whether the circumstances have changed. The Court will consider that debate, and if there is a real controversy, will deal with it as it does with any other controversy in the normal way. 52 I mention one other matter. There has been placed before the Court material that would require an investigation as to whether bullying is occurring or relevant circumstances have changed since the making of the interim orders on 18 February 2014. This is a matter for the primary judge and application can be made to him for any variation of the interim orders. The primary judge will be well aware of what DP World would contend for as practical on the job concerns. There is nothing to suggest that upon proper material being put to the primary judge, he could not be persuaded that the interim orders previously made should be discharged or modified. 53 I should say that having seen the material that has been placed before me, dealing with events that allegedly occurred after the making of the interim orders, I am not persuaded by such material that there was any unreasonableness inherent in the interim orders made by the primary judge. In other circumstances, evidence relating to events that occurred after the making of such orders, may demonstrate that the original order was unreasonable or plainly unjust. The evidence placed before me in this application for leave to appeal does not go that far. 54 For the above reasons, I dismiss the application for leave to appeal. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.