McGinn v Department of Family and Community Services

Facts

1. The plaintiff was employed by the defendant organisation in the position of quality manager and internal auditor as part of the Land and Housing Corporations Projects Division. On 30 January 2017 she lodged an application for unfair dismissal with the Industrial Relations Commission on the ground that the proposed deletion of her position was not a genuine redundancy (paragraph 2 of her affidavit of 26 July 2017).
2. There was a conciliation on 15 March 2017 which the plaintiff says failed. The plaintiff asserts that on 16 March 2017, the respondent "finalised the new structure and redundancy".
3. Both the plaintiff and the defendant agree that her employment was terminated. The plaintiff asserts that the termination was "with the excuse that I refused to perform duties while those duties do not exist in the new structure and have been redundant" (paragraph 5 of her affidavit). The defendant in its outline of submissions stated that the termination was because the plaintiff to perform her duties on the basis that her position had been deleted, notwithstanding numerous directions that she was to continue to perform her role.
4. On 11 May 2017, the plaintiff's unfair dismissal application was filed and it seems an interim application of some kind was made on that day which the plaintiff says was refused "with false reason that an employee's application is not an industrial dispute" (paragraph 6 of her affidavit). The plaintiff lodged a second application for unfair dismissal on the ground that the termination was invalid (paragraph 7 of her affidavit).
5. Her application was heard by Commissioner Newall on 28 and 29 June 2017 who provided a decision on 10 July 2017 dismissing her application.
6. Provided by way of submission rather than affidavit evidence, counsel for the defendant said that the evidence before the IRC was that the defendant had made a decision to restructure the organisation which had not yet been implemented and which would result in some positions being declared "excess". The likely effect of this would be that some employees would be made redundant if they could not be redeployed. Whilst the final structure was decided in March 2017, it had commenced implementation but had not been finalised.
7. On 12 July 2017, the plaintiff filed an application for leave to appeal and also sought a stay. This Application was appended to the plaintiff's affidavit. In that Application she states that she is appealing from the whole decision of the IRC made on 10 July 2017 and that the questions raised by the appeal are whether the employment is still ongoing when the position does not exist in the finalised new structure. She asserts as reasons why leave to appeal should be granted that the appeal raises substantial issues of principle, substantial issues of law, has wider implications for jurisprudence of the IRC, and issues going to the proper administration of justice.
8. The plaintiff's grounds of appeal are that there was an error of law that an employment is considered as ongoing when the substantive position does not exist in the new structure, that there was an error made by Commissioner Newall in determining as a question of fact that there was a refusal to perform duties, that Commissioner Newall failed to consider all relevant submissions she had made in relation to procedural fairness, that the employment was not ongoing given the restructure (in effect), he failed to determine that her termination was not harsh and unjust and unreasonable and that he failed to correctly apply s 88 of the Industrial Relations Act 1996 (NSW).
9. The plaintiff sought a stay because "the Commission has a duty of care to order the respondent to recreate the position, to reinstate the applicant instead of allowing that structure being implemented when it is common ground that the applicant's substantive position is of an important nature".
10. The defendant submits that the application to the IRC for a stay was misconceived because the IRC did not have power to make the orders sought and a stay of the IRC decision would have been, in any event, futile as the IRC had already dismissed her application.
11. The plaintiff's appeal in the IRC is listed to be heard by the full bench on 22 September 2017.
12. On 19 July, an email was sent by the plaintiff to the solicitor for the defendant stating, "Further to the stay application which Chief Commissioner Kite advised that only Supreme Court can grant such injunction. Please be advised that the applicant intends to apply for injunction unless the respondent is willing to give an undertaking to preserve the applicant's position. If no reply is received by COB tomorrow 20 July 2017, I will take as a refusal".
13. A reply was provided by Sparke Helmore Solicitors' Felicity Edwards, senior associate on 20 July 2017 at 5:37 pm as follows: We refer to your below email and acknowledge receipt. It is unclear what you mean by preserving the applicant's position. If you are asking whether the department agrees to delay the implementation of the restructure pending the outcome of your appeal in the IRC, we are instructed that the Department does not agree with this.
14. The plaintiff then sent a reply on 21 July 2017 at 12:45 pm by email as follows: The respondent knows very well my request is to preserve the applicant's position, not to delay the implementation of the whole restructure. The fact that the respondent deflected the real issue constitutes an admission that it has no intention to give the undertaking. Should the respondent wishes to reconsider the request, please advise via email by COB 24 July 2017.

Relevant legislation

1. The Supreme Court Act 1970 (NSW) s 66 provides the Court with the power to issue injunctions at any stage of proceedings: 66 Injunction (1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury. (2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases. (3) The Court may restrain any threatened or apprehended waste or trespass pursuant to this section: (a) whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and (b) whether the estate claimed by any party is legal or equitable. (4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.
2. Rule 25.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides: 25.2 Order in urgent case before commencement of proceedings (1) In an urgent case, the court, on the application of a person who intends to commence proceedings, may do any of the following: (a) it may make any order which the court might make in proceedings on an application for a writ of habeas corpus ad subjiciendum, (b) it may make any order for the custody of a minor, (c) it may grant any injunctive relief, including relief in the nature of a freezing order under Division 2 (Mareva relief) or a search order under Division 3 (an Anton Piller order), (d) it may make an order extending the operation of a caveat under: (i) the Real Property Act 1900, or (ii) the Offshore Minerals Act 1999, or (iii) the Offshore Minerals Act 1994 of the Commonwealth, (e) it may appoint a receiver, (f) it may make an order for the detention, custody or preservation of property under rule 25.3, to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings. (2) In relation to proceedings in the Supreme Court, an application under subrule (1) may be made in any division of the Court but must, so far as practicable, be made in the division to which the proceedings that are intended to be commenced would be assigned. (3) A person making an application under subrule (1) must give an undertaking to the court to the effect that the applicant will file originating process commencing the proceedings within such time as the court may order or, if the court makes no such order, within 48 hours after the application is granted.
3. The Industrial Relations Act 1996 (NSW) provides relevantly in ss 84, 88 and 89: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2) An application may be made on behalf of the employee by an industrial organisation of employees. (3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. … 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines.

Plaintiff's oral submissions in support of her application

1. The plaintiff submitted by reference to the "Civil Trial Bench Book" that she was able to satisfy the relevant tests for a grant of injunction. First she submitted that there were legal rights and in particular statutory rights pursuant to her statutory employment contract with FACS.
2. Second, she submitted that there was a serious question to be tried as set out in the Notice of Appeal. In support of this submission the plaintiff read directly from Part G of her Application for Leave to Appeal an Appeal stating as follows: G. Reasons why leave to appeal should be granted: 1. The appeal raises substantial issue of principle, in that, it is unfair to demand the duties of a substantive position when it no longer exist in the finalised structure. 2. The appeal rises substantial issue of law, whether the employment can be considered as 'ongoing', that is, permanent, when the position no longer exist. 3. The appeal has wider implications for the jurisprudence of this Commission, because it has widespread practical application whether the employer can count the employee as FTE or the employee can apply for loans under 'ongoing' employment when he/she doesn't have substantive position. 4. The appeal raises issue going to the proper administration of justice, in that, there is a gross miscarriage of justice when Commissioner Newall failed to consider all relevant submissions of the applicant.
3. Third, the applicant submitted that the balance of convenience favoured the order being granted because the defendant terminated her employment and did not pay her and that if the injunction is not granted then the plaintiff will have to pursue damages by a legal proceeding in the Supreme Court which is not convenient to any party or the Court or the respondent nor to FACS as it will have to face a damages claim. The plaintiff stated that she is "actually pursuing the injunction to reduce everyone's liability".
4. Fourth, irreparable harm would be suffered by the plaintiff if the relief is not granted. In support of this submission, the plaintiff stated that her termination was an intentional tort and was potentially misfeasance in public office. She submitted that begs the question as to whether FACS is liable to pay her damages or whether the individual officer involved has to pay. She argued that she may not be able to recover damages if it is an individual who is liable. She also raised the issue as to whether damages would be a sufficient remedy. The plaintiff said she had a potentially $1 million claim because of her "loss of 20 years of employment" due to the actions of the defendant.
5. The plaintiff also argued that it was unfair to the tax payer to have to pay her damages and the Courts have a duty of care to see whether that should be prevented.
6. There are no proceedings commenced in this Court. The legal right the plaintiff asserts that she would pursue in this Court is an action for damages for breach of contract.

Defendant's submissions

1. The defendant noted that the Supreme Court has the power to grant an injunction both in its equitable auxiliary jurisdiction as well as the statutory injunction powers set out in s 66 of the Supreme Court Act 1970 (NSW). The defendant referred to the summary of relevant principles set out by Slattery J in Uber BV v Howarth [2017] NSWSC 54 as follows: [194] Equity has well-established jurisdiction to grant injunctions to restrain legal wrongs. Provided the plaintiff possesses a legal right, and that right is arguably of a proprietary nature, and the right is threatened or has already been infringed and damages would not be a sufficient remedy, then the Court may grant an injunction in the auxiliary jurisdiction. Each of these four requirements is made out here. [195] (1) Establishing a Legal Right. In the Equity Court's auxiliary jurisdiction a plaintiff can only obtain an injunction in aid of an actual legal right: Waterside Workers Federation of Australia v J.W.Alexander Ltd (1918) 25 CLR 434 at 464. Uber identifies the relevant legal right here as the tort of intimidation. The ingredients of that tort are established in this case. This is discussed earlier in these reasons. [196] (2) A Proprietary Right. The legal right being protected by the injunction must be of a proprietary nature. But this requirement has now been so modified that learned text writers have said of it "that its very existence at the moment must be regarded as crepuscular": RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed 2015, Butterworths LexisNexis), paragraph [21-040] ("Meagher, Gummow and Lehane"). If proof of a proprietary right is necessary here, in my view it can readily be established. The tort of intimidation is pursued here to protect the goodwill of Uber's business, even though it may incidentally prevent trespasses to the person of a number of Uber drivers. [197] (3) Actual or Threatened Infringement. A threat of future infringement of a legal right will normally be inferred from past infringement unless the circumstances point to the contrary: Proctor v Bayley (1889) 42 Ch D 390 at 399 - 400. There has been past infringement here and no clear indication from Mr Howarth that it will not continue in the future unless restrained. This is not a case where the Court can be confident that harm to the plaintiff has ceased or will not resume: Barber v Henley [1893] 2 Ch 447 and Leader v Moody (1875) LR 20 Eq 145. The defendant, Mr Howarth, has not offered any undertaking not to continue the alleged wrong: Jenkins v Hope (1896) 1 Ch 278. The Court's findings show that Mr Howarth's threats of the commission of the tort of intimidation were express and the tort was committed right up until the Court granted its first interlocutory injunction in the proceedings on 1 July 2015, and was then followed by in August 2015 other harassing conduct against Uber drivers just outside the scope of the injunction. … [199] (4) Damages Inadequate Recompense. Damages would not be an adequate remedy for Uber. If Mr Howarth's tortious conduct were not restrained and continued to occur a number of results may follow: (1) Uber may suffer loss without knowing it - intimidated drivers may never report the problem but may merely cease to work for Uber and many other unknown persons may be deterred from taking up work with Uber; (2) if an Uber driver or an Uber staff member were seriously injured, while the tort was being committed, and the Court concludes on the evidence that such a risk exists, then quite apart from the serious risk of irreversible personal injury to drivers, Uber's commercial reputation may suffer irreparable harm; (3), if the injunction were not granted Uber would be likely to be involved in multiple actions against not only Mr Howarth but potentially against other persons who the evidence demonstrates have been acting in concert with him from time to time; and, (4) Uber has no other practical way of remedying Mr Howarth's tortious conduct - were Uber itself to attempt to physically restrain Mr Howarth, his conduct would be difficult to anticipate and any self-help remedy by Uber would be likely to threaten a breach of the peace. Though challenged, the inadequacy of damages requirement still exists: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 per Mason CJ. Uber's complaint falls within recognised categories of "irreparable injury": Meagher, Gummow and Lehane at [21 - 040]. [200] Uber also seeks relief under Supreme Court Act 1970, s 66. This provides for the grant of injunctions as follows: "66 Injunction (1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury. (2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases. (3) The Court may restrain any threatened or apprehended waste or trespass pursuant to this section: (a) whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and (b) whether the estate claimed by any party is legal or equitable. (4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do." [202] Supreme Court Act, s 66 empowers the Court to grant an injunction to restrain "any threatened or apprehended… injury". The Court's findings show that the injury of which Uber complains has already occurred and has been repeated over a period of about seven months before the Court granted an interlocutory injunction. This is not a case of a merely apprehended injury but it is at least that. [203] All the conditions precedent for the grant of an injunction in Equity's auxiliary jurisdiction need not be established before the Court can exercises its power under Supreme Court Act, s 66: Meagher, Gummow and Lehane at [21-060]. But the grant of Supreme Court Act, s 66 relief is nevertheless discretionary, as the provision makes clear: "the Court may at any stage of proceedings…by…injunction restrain…". [204] The Court will not grant a statutory injunction where discretionary considerations, such as the following, weigh against the grant: the suffering of mere inconvenience, rather than legal injury or loss (Day v Brownrigg (1878) 10 Ch D 294); merely trivial infringement of the plaintiff's legal rights (Llandudno Urban District Council v Woods [1899] 2 Ch 705); the interference with third-party rights (Earl of Harrington v Derby Corp. (1905) 1 Ch 205); or, an award of damages would be an effective and adequate remedy of its own (London and Blackwell Railway Co v Cross (1885) 31 Ch D 354, per Lindley LJ at 369). None of these discretionary considerations is a factor against granting a permanent injunction in this case. [205] Some of the same discretionary considerations that are relevant to the grant of a s 66 injunction are also relevant to a grant of an injunction in Equity's auxiliary jurisdiction. But as earlier discussed, threatened infringement is established here and the inadequacy of damages as a remedy is also made out.
2. The defendant submitted that before an injunction could be granted, the plaintiff needed to satisfy the Court that there was a claim against the defendant that had been properly brought in the Supreme Court with an identified legal right.
3. The defendant submitted that there was no legal right to be determined by the Supreme Court, and the plaintiff's legal rights related to her claim of unfair dismissal which can only be pursued in the IRC. The defendant identified the various types of relief that could be granted by the IRC as set out in s 89 of the Industrial Relations Act 1996 (NSW). Orders available included reinstatement, reemployment, remuneration, continuity, and compensation.
4. It was argued that s 89, providing as it does the option for the Commission to order reinstatement or reemployment, is relevant to the consideration of the balance of convenience because the rights that the plaintiff has, to the extent that they can be characterised as legal rights, are currently being pursued in the Industrial Relations Commission.
5. Whilst no statement of claim was available to assess how the claim would be formulated, from the plaintiff's submissions there was nothing identifying a serious issue to be tried in the Supreme Court, particularly given the forms of relief still open to the IRC to order if the plaintiff's appeal is successful.

Decision

1. The plaintiff asserts that she may have a breach of contract claim if she fails in her appeal before the IRC. However, the fact that her proceedings before the IRC are not yet concluded, and because of the relief available to her in that Court pursuant to s 89 of the Industrial Relations Act 1996 (NSW) includes damages, there is not a serious question able to be tried in this Court to which protection of a right by injunction could currently apply.
2. The plaintiff can make a claim for damages for breach of contract in this Court should she choose to do so if she fails in the IRC. That right is not affected in any way by the refusal to grant the injunction sought.
3. The balance of convenience tells against the grant of the injunction sought. Remedies available to the plaintiff pursuant to s 89 of the Industrial Relations Act 1996 (NSW) remain available to her if her appeal is successful, including reinstatement and damages. Clearly the balance of convenience favours the relevant issues currently before the IRC in the plaintiff's appeal being determined by the Full Court of that Court.
4. The relief sought in this Court appears to be misconceived. In saying that, I express no opinion as to the merits of the plaintiff's appeal before the IRC.
5. In the circumstances, I dismiss the plaintiff's application and order that the plaintiff pay the respondent defendant's costs of the notice of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2017