Freeman v Ambulance Victoria

REASONS FOR JUDGMENT 1 Mr Neil Freeman commenced employment with Ambulance Victoria in May 2008. He was employed as a clinical transport officer. In January 2010 he commenced full-time employment as a clinical transport officer in the car division. 2 Almost immediately after he commenced full-time employment, issues arose between Mr Freeman and Ambulance Victoria managers about the uniform he was wearing. In particular, managers were concerned that Mr Freeman, from time to time, had the word "paramedic" emblazoned on one or more parts of his uniform. He was not qualified as a paramedic and was not entitled to hold himself out as a paramedic. 3 These complaints led to a series of counselling and disciplinary sessions during 2011. They culminated in a decision, which was conveyed to Mr Freeman by letter on 23 September 2011, advising him that a decision had been made to terminate his employment in seven days subject to any further submissions which he might wish to make. 4 On 29 September 2011 Mr Freeman commenced the present proceeding. His originating application sought the following orders and declarations: "1. An Order that the Respondent be required to deal with the Applicant's grievances in accordance with clause 8 of the Ambulance Victoria Enterprise Agreement 2009; 2. A declaration that the Respondent has breached section 50 of the Fair Work Act 2009. 3. An Order that the Respondent pay a penalty pursuant to section 546(1) of the Fair Work Act 2009. 4. An Order that the penalty be payable to the Applicant pursuant to section 546(3)(c) of the Fair Work Act 2009. 5. A declaration that the proposed termination of the Applicant's employment will breach section(s) 340, 351 and/or 772 of the Fair Work Act 2009. 6. An Order that the Respondents be and is hereby restrained from terminating the employment of the Applicant without first providing 30 days' notice of its intention to do so to the Applicant pursuant to section 545(2)(a) of the Fair Work Act 2009. 7. An Order that the Respondent's Officers Bradbury and Williams be directed by the Respondent to comply with the policies and procedures of the Respondent, the Ambulance Victoria Enterprise Agreement 2009, and the Fair Work Act 2009. 8. Reserve liberty to apply on 14 days written notice." 5 He also sought an interlocutory order restraining Ambulance Victoria from terminating his employment. 6 The interlocutory application came on for hearing before me on 30 September 2011. Ambulance Victoria raised issues about the competence of the application. Given the uncertainty I considered that the appropriate course was to move as speedily as possible to a trial. No interlocutory orders were made. Directions were given with a view to a final hearing taking place yesterday. 7 The directions provided for an exchange of contentions of fact and law. On reading those submissions it became apparent that the parties had proceeded on the basis that the hearing would simply be a continuation of the one considering interlocutory relief which had been adjourned on 30 September 2011. The reasons for this confusion need not be explored. Counsel for Mr Freeman indicated that he was not ready to proceed with a final hearing. As a result all that was debated yesterday was Mr Freeman's application for an injunction restraining Ambulance Victoria from terminating his employment. 8 Whilst the hearing was pending Ambulance Victoria determined to terminate Mr Freeman's employment with effect from 3 October 2011, on the ground of his wilful misconduct. There was no evidence that Mr Freeman had been advised of the decision. His solicitors had been provided with a copy of a letter which recorded the decision. 9 During Mr Freeman's full-time employment with Ambulance Victoria and while the counselling and disciplinary processes were being pursued other disputes occurred. 10 Early in 2010 Mr Freeman contacted Ambulance Victoria's occupational health and safety manager and complained about a lack of lighting on the hoists on the back of ambulances. Mr Freeman had tripped and nearly fallen off a hoist on a dark night. He made other complaints about the maintenance of equipment in and on ambulances. 11 On 21 January 2010 Mr Freeman lodged an occupational health and safety report relating to a defective driver's chair in an ambulance. 12 On 28 June 2010 Mr Freeman lodged another occupational health and safety report. On this occasion he had injured himself when dealing with an overweight patient. 13 On 15 March 2011 Mr Freeman applied to Ambulance Victoria for the creation of a designated work group for clinical transport officers. No action was taken on this request. 14 In about mid-March 2011 Mr Freeman lodged another occupational health and safety complaint. It related to what he said was an assault on him which occurred on 9 March 2011. In the course of his duties Mr Freeman had parked his vehicle near a construction site and, in doing so, had impeded access to the site. A man seeking to enter the site threatened Mr Freeman verbally and then approached him in an aggressive manner. The aggressor backed off but not before punching the side of Mr Freeman's ambulance twice, denting it. 15 In May 2011 he made another occupational health and safety report relating to the presence of contaminated blood in an ambulance and the failure to remove the blood. 16 About 16 May 2011 Mr Freeman had a discussion with an Ambulance Victoria manager, Mr Peter Swan. Mr Swan counselled Mr Freeman against wearing incorrect uniform. As he did so, according to Mr Freeman, Mr Swan stood very close to Mr Freeman and towered over him thereby intimidating Mr Freeman. Following the incident Mr Freeman made a complaint to his manager about what he said was bullying and intimidation on the part of Mr Swan. 17 In August 2011 Mr Freeman was transferred from the Port Melbourne Branch to the Windsor Branch of Ambulance Victoria. This change of location meant that Mr Freeman was required to work a different roster. This created difficulty for him in attending to his family and parental responsibilities. He complained that he had not been given the 28 days notice of the change of roster which was provided for in the relevant industrial agreement. Ambulance Victoria responded that the roster had been available on the Ambulance Victoria intranet for the required notice period. 18 On 9 August 2011 Mr Freeman attended a "disciplinary meeting" with his solicitor. That meeting considered further allegations that he had been wearing the incorrect uniform. He was given the opportunity of responding to those allegations. 19 On or about 11 August 2011 Mr Freeman made a complaint to the Victorian Equal Opportunity and Human Rights Commission ("the VEOHRC"). In a nine page letter Mr Freeman recorded a series of grievances which he had with Ambulance Victoria. He recounted the details of the counselling and disciplinary processes. He said that the allegations relating to his wearing of incorrect uniforms "appear to be a further instance of the bullying, harassment and discrimination I have experienced at [Ambulance Victoria]." He went on: "I believe that I have been treated less favourably than other employees for a number of reasons: I have been discriminated against on the basis of my physical features; My employer has refused to take my responsibilities as a parent into account; and I have been discriminated against on the basis of employment activity." 20 He identified his relevant "physical features" as being his "shorter stature". He referred to his dealings with Mr Swan on 16 May 2011 as an example of him being bullied by other Ambulance Victoria employees because he was short. 21 Among the instances which he cited of the alleged failure of Ambulance Victoria to take account of his parental or carer responsibilities was what he said was the insufficient notice of significant roster changes which occurred when he moved from Port Melbourne to Windsor. 22 Among the examples which he provided of alleged discrimination on the basis of his employment activity were his request for the establishment of a designated workgroup, his complaints about occupational health and safety matters and the alleged assault on him in March 2011. 23 The letter concluded with a request for the VEOHRC to "investigate these complaints against Ambulance Victoria." 24 On 11 August 2011 Mr Freeman's solicitors wrote to Ambulance Victoria's solicitors seeking the latter's agreement to give seven days' notice of any intention to terminate Mr Freeman's employment. Ambulance Victoria declined to give such an assurance. 25 On 30 August 2011 Mr Freeman made an application to the Victorian Civil and Administrative Tribunal ("VCAT") for an order that Ambulance Victoria be restrained from terminating his employment. 26 On 7 September 2011 Coghlan DP refused the application for an injunction. She found that the complaints of discrimination on which Mr Freeman relied in his complaint to the VEOHRC were unrelated to the "wrong uniform" allegations which were the subject of the counselling and disciplinary proceedings. 27 Mr Freeman then sought to appeal from Coghlan DP's decision. That appeal lay to the Supreme Court but only on a question of law. His summons which was filed on 19 September 2011, sought injunctions restraining Ambulance Victoria from terminating his employment. 28 On 21 September 2011 Lansdowne AsJ granted limited leave to appeal. She referred the application for an injunctive order to the Practice Court to be heard on 27 September 2011. 29 In the meantime Ambulance Victoria made a qualified decision to terminate Mr Freeman's employment. That decision was made on 23 September 2011. Notice of the decision was given by letter from Ambulance Victoria's solicitors to Mr Freeman's solicitors. The letter gave reasons for the decision and gave Mr Freeman seven days' notice of Ambulance Victoria's intention to terminate his employment. The letter concluded: "If your client wishes to make any further written representations about the decision of our client he should do so before close of business on Friday 30 September 2011." 30 When the matter came on before T Forrest J in the Practice Court on 27 September 2011 it proceeded on the basis that Mr Freeman had discontinued his appeal to that Court and his Honour confined his attention to the costs orders which were to be made on the discontinued appeal and the application for injunctive orders. 31 As already noted this proceeding was commenced by application on 29 September 2011. 32 The affidavit which Mr Freeman filed in support of his application for interlocutory injunctive relief did not disclose the details of his applications to either VCAT or the Supreme Court. 33 Ambulance Victoria opposed the granting of any interlocutory injunction. Its principal objection was that the order was sought in a proceeding which Mr Freeman was precluded, by operation of s 734 of the Fair Work Act 2009 (Cth) ("the Act"), from commencing. Ambulance Victoria argued, in the alternative, that the requirements for the granting of interlocutory relief had not, in any event, been satisfied. 34 Section 734(1) of the Act is one of a number of provisions which are designed to prevent a multiplicity of actions being brought in respect of alleged misconduct occurring in employment relationships. It provides: "A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person, if: (a) an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and (b) the application or complaint has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction." Section 734(2) precludes the making of an application under anti-discrimination legislation if a general protections court application has already been made. 35 A "general protections court application" is defined in s 370(2) of the Act to mean "an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part." Section 370(2) falls within Part 3-1 of the Act (ss 334-378). 36 Counsel for Mr Freeman was, initially, disposed to argue that s 734 did not apply because the terms of the 23 September 2011 solicitor's letter evidenced a constructive dismissal. On reflection, he withdrew this submission and, instead, contended that the relevant conduct of Ambulance Victoria did "involve the dismissal of" Mr Freeman. 37 Although the letter could have been written with greater clarity, the invitation, which it contained, to Mr Freeman to make further submissions in opposition to his proposed termination, indicated that Ambulance Victoria's relevant conduct did not involve more than a proposal that Mr Freeman's employment should be terminated. 38 Counsel submitted that "involve" should be read as if the word were interchangeable with broad connective phrases like "relating to" or "connected with". I do not accept these submissions. The word "involve" is of narrower compass. Furthermore, there appear, immediately before s 734, a series of provisions which seek to ensure that multiple actions cannot be commenced in relation to a dismissal from employment: see ss 725-732. 39 At the time at which Mr Freeman commenced his proceeding in this Court, the complaint which he had made to VEOHRC on 10 August 2011 had not been withdrawn. On the contrary, it remained and remains on foot. 40 As a result, his application to this Court, at least to the extent that it constituted a general protections court application, should not have been made. The consequence may be that the application is, in part at least, incompetent. It is not necessary that I express a concluded view at this stage. 41 Counsel for Ambulance Victoria accepted that only the orders sought in para 5 and for consequential relief were comprehended by the term "general protections court application" (paras 5 and 6). He submitted, however, that the making of these claims was sufficient to justify the characterisation of the claims as a whole as such an application. 42 I do not accept this submission. It is possible to make multiple claims in a single application. Rules 34.03(2) and 34.05(2) of the Federal Court Rules 2011 contemplate that other claims can be made in conjunction with those that constitute a general protections court application. There is no reason why they cannot be treated discretely. 43 I will, therefore, consider the application for interlocutory relief having regard to all of Mr Freeman's claims. The relevant test is well known and was restated by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19]. The Court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy and that the balance of convenience favours the granting of an interlocutory injunction. 44 Claims 1 to 4 relate to an alleged breach by Ambulance Victoria of its obligations under Clause 8 of the Ambulance Victoria Enterprise Agreement 2009 ("the Agreement") Section 50 of the Act stipulates that a person must not contravene a term of an enterprise agreement. A contravention gives rise to a civil remedy: see s 539. 45 Clause 8 provides for a staged process to deal with disputes and grievances arising in the workplace. Its reach is explained in Clause 8.1 which reads: "Unless otherwise provided for in this Agreement, a dispute between the Employer and employees, or where individual employees have a grievance, about a matter arising under this Agreement or the National Employment Standards (as they apply from 1 January 2010 and including a refusal in accordance with section 65(5) of the Act of a request for flexible working arrangements), must be dealt with in accordance with this clause." 46 Counsel for Mr Freeman identified the relevant grievance as being Mr Freeman's alleged treatment by Mr Swan on 16 May 2011. It is difficult to appreciate how a complaint about a personal altercation between two employees could be understood as being about a matter arising under the agreement. Mr Freeman evidently did not consider it to be so. He complained about the incident to his supervisor and asked that an enquiry should be conducted. He did not purport to invoke the grievance procedure. The evidence does not disclose what became of the request for an enquiry. Nor does it suggest that Mr Freeman sought to invoke the next stage of the grievance process when and if he failed to obtain satisfaction from his supervisor. 47 In my view Mr Freeman does not have an arguable case that Ambulance Victoria has contravened Clause 8 of the Agreement and, in doing so, s 50 of the Act. 48 The second group of claims allege contraventions by Ambulance Victoria of ss 340, 351 and/or 772 of the Act. 49 Mr Freeman alleges that, contrary to s 340, disciplinary action was taken against him because he had exercised his workplace rights. Those rights were the ones on which he relied in making his complaint to VEOHRC, namely, his request for an establishment of a designated workgroup and the various complaints which he had made relating to occupational health and safety issues. 50 He alleged that the disciplinary action had also been taken because of his family or carer's responsibilities, contrary to s 351(1). 51 In making these submissions Mr Freeman was repeating submissions which had been made to Coghlan DP and rejected by her. She found no evidence of any link between Mr Freeman's exercise of his workplace rights or his family responsibilities and the instigation of counselling and disciplinary processes. 52 There is no evidence in the material on which he relies in this Court to forge the link. 53 In this regard I note that the reverse onus which would otherwise apply in relation to these allegations cannot be relied on by Mr Freeman when he seeks interim injunctive relief: see s 361(2) of the Act. 54 Section 772 of the Act prohibits an employer from terminating an employee's employment for reasons which include the employee's family or carer's responsibilities. Mr Freeman is precluded, by s 723 of the Act, from prosecuting a claim under s 772 if he is entitled to make a general protections court application. If he is not entitled to make such an application (as I have provisionally found) he may be able to make a complaint under s 772 following his termination. He had not, however, been dismissed at the time at which the present proceeding was commenced. 55 I do not consider that Mr Freeman has an arguable case in respect of any of the claims he makes and which fall within this second group. 56 His application for interlocutory relief must be refused. 57 I will give directions with a view to bringing the matter on for final hearing on 27 October 2011. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.