Kweifio-Okai v Australian College of Natural Medicine

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 305 of 2014

AND: AUSTRALIAN COLLEGE OF NATURAL MEDICINE TRADING AS ENDEAVOUR COLLEGE OF NATURAL HEALTH

JUDGE: TRACEY J DATE: 15 JULY 2014 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant was employed by the respondent as a Program Leader pursuant to a fixed term contract of employment which commenced on 16 May 2011 and expired on 15 May 2014. 2 Late last year and in the early part of this year disputes arose between the applicant and his supervisor, Dr Seroya Crouch, relating to the performance of the applicant's duties. This dispute gave rise to allegations of misconduct on the part of the applicant. The applicant was advised of these allegations by letter dated 14 February 2014. He was informed that the respondent proposed to investigate the allegations and he was suspended on full pay pending the outcome of the investigation. The respondent engaged an independent, external investigator to conduct the investigation. The investigation proceeded. 3 On 14 April 2014 the investigator reported. Some, but not all, of the allegations were found to have been established. The Chief Executive Officer of the respondent, Ms Carolyn Barker, accepted the adverse findings on a provisional basis. The applicant was so advised in writing on 24 April 2014. The adverse findings included a failure to observe a lawful and reasonable direction given to him by his supervisor, inappropriate and unprofessional behaviour and instructing an employee not to comply with a management direction. The applicant was provided with an opportunity to make written submissions relating to the findings. He provided a short written response which did not address any of the specific allegations and findings. The applicant was also directed to attend a meeting on 2 May 2014 at which he was to have the opportunity of responding to the allegations and findings. He was advised that he could be accompanied by a "support person". The applicant declined to attend the meeting. 4 Having considered the external investigator's findings and the applicant's responses Ms Barker confirmed the preliminary findings and advised the applicant that the respondent had "elected not to renew [his] Contract." The applicant was so advised by letter dated 9 May 2014. 5 The applicant filed an originating application in the Court on 5 June 2014. The application sought declarations that the respondent had contravened various standards imposed under the Tertiary Education Quality and Standards Agency Act 2011 (Cth). He also sought "[r]enewal of contact of employment and exemplary/punitive damages." The applicant also sought, by way of interlocutory relief, an order that the position which he had formerly held "be filled in an acting capacity pending hearing in (sic) this case." The application made no reference to any cause of action which the applicant might have had under the Fair Work Act 2009 (Cth) ("the Fair Work Act"). 6 The interlocutory application came on for hearing on 20 June 2014. The applicant was self-represented. It quickly became apparent during his oral submissions that he wished to contend that he had claims under Part 3-1 of the Fair Work Act which he wished to pursue. In these circumstances I granted the applicant leave to file and serve an amended application and to file and serve any additional material on which he might seek to rely in support of his interlocutory application. 7 The applicant filed an amended originating application in which he alleged that the decision not to renew his contract of employment constituted adverse action and he alleged that that adverse action had been taken because he had exercised an unspecified workplace right. He sought declaratory and other relief. 8 The applicant recast the terms of the interlocutory order which he sought. He sought an order that the respondent renew his contract "on terms and conditions no less favourable than those of the initial contract and that the position of Bio Science Programme leader I occupied be filled in an acting capacity by a suitably qualified person pending hearing in (sic) this case." 9 Consideration of the interlocutory application resumed this morning. The applicant relied on two affidavits, one dated 5 June 2014 and the other 30 June 2014. The respondent raised numerous evidentiary objections to the contents of both affidavits. Most of these objections were justified. Nonetheless, this being an interlocutory hearing and the applicant being unrepresented, I allowed the applicant to read his two affidavits without amendment. 10 The respondent opposed the interlocutory application. It relied on the affidavit of its Ms Barker, sworn on 13 July 2014. 11 In order for the applicant to obtain interlocutory relief it is necessary for him to make out a prima facie case, in the sense that, if the evidence remains as it is, there is a probability that he will succeed in obtaining some relief at trial and to establish that the balance of convenience favours the granting of an interlocutory injunction: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-84. In a practical sense what the Court strives to do is to adopt the course which is attended by the lower risk of injustice if, after trial, the applicant fails to establish his or her case: see Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 501-3. 12 In determining whether or not a prima facie case has been made out the Court is not required to conduct a preliminary trial. Nor is it required to resolve conflicting evidence which is advanced by the parties. Some attempt must, nevertheless, be made to make an assessment of the relative strengths of the parties' cases. 13 In his amended application the applicant maintains his complaints about contraventions, by the respondent, of prescribed standards. He also claims that he was not re-engaged because he had "exercised a workplace right to make a complaint" in relation to his employment: see s 341 of the Fair Work Act. I take this to be a reference to s 341(1)(c)(ii) which deems a workplace right to inhere in an employee who is "able to male a complaint" in relation to his or her employment. The amended application, however, does not descend to sufficient particularity to enable the reader to understand the factual foundation on which the allegations of contraventions of standards are made. Nor is the relevant complaint, which is said to attract the operation of s 341 of the Fair Work Act, identified. These deficiencies are not rectified in the affidavit material which the applicant has filed. There is also a failure to provide evidence upon which it might be concluded that the failure to re-engage him occurred because of any complaint which he might have made. In this context it is to be borne in mind that the reverse onus provisions, provided for in s 361(1) of the Fair Work Act, do not apply when interim injunctions are being sought: see s 361(2). 14 In oral submissions the applicant sought to take issue with the merits of the adverse findings made by the investigator and adopted by Ms Barker. 15 The shortcomings in the amended application and the evidence advanced by the applicant to which I have referred create particular difficulties for the respondent. The respondent is unable to provide a detailed response to a case which is not clearly articulated. The Chief Executive Officer of the respondent does, however, explain the circumstances in which the investigation was instituted and the procedures which were adopted in the course of the deliberations which led to the decision not to offer the applicant a further contract. In particular, the allegations were investigated by an independent person and the applicant was given ample opportunity to respond to those allegations. The Chief Executive Officer's decision was based on the facts, as found by the external investigator. Importantly, Ms Barker (who made the impugned decision) deposed that she acted for three reasons. They were that: "(a) the findings demonstrated conduct inconsistent with the Respondent's Code of Conduct and inconsistent with the ordinary behaviours I expected of a senior academic at the Applicant's level of seniority; (b) I considered that the relationship of trust between the Applicant and the Respondent had broken down, and as the Respondent had showed no contrition or remorse, or demonstrated any ability to self-assess and accept the advice and instructions of his superiors (irrespective of his own personal views), I did not consider there to be any way to rebuild the relationship of trust. On the basis of the findings, I could not trust that the Applicant would follow organisational directions with respect to resource allocation, strategy and direction in the future; and (c) the substantiated allegations and particulars demonstrated to me that the Applicant was not the appropriate candidate to lead the department going forward, as he was not willing to work in accordance with the strategic direction of the Respondent and in accordance with the instructions and directions of his superiors." She also disavowed any knowledge of any complaint having been made by the applicant at the time at which she made her decision. 16 The case advanced by the applicant in support of granting a mandatory injunction is, in my view, relatively weak. I am not persuaded that, if the proceeding went to trial on the material presently advanced by the applicant, he would have a realistic prospect of success. In so saying I am mindful that, at trial, he would have the benefit of the reverse onus provisions of s 361(1) of the Fair Work Act. I am also mindful of the fact that what is being sought is a mandatory injunction, the terms of which may be regarded as internally contradictory and uncertain. How, for example, could the respondent be assured that it was complying with an obligation to appoint "a suitably qualified person" to fill the role formerly occupied by the applicant? 17 What I have said is sufficient to dispose of the application. I will, nonetheless, deal briefly with the balance of convenience. Plainly, the applicant is seriously incommoded by the loss of his employment. He has not, however, provided any evidence about attempts to obtain alternative positions or the likelihood of a person with his qualifications obtaining alternative academic employment. He has not deposed to his financial affairs or domestic commitments. Ms Barker has given some evidence about the need for the position to be filled on a permanent basis and the problems created for the respondent by reason of the applicant's refusal to co-operate with his supervisor and senior management. The balance, in my view, tilts in favour of the respondent. 18 It is desirable that there be a speedy trial. I will hear the parties as to appropriate directions which will ensure that the proceeding is ready for trial at an early date. 19 In the meantime, the applicant's application for interlocutory relief must be refused. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.