Mr Najmitdinov is employed by Woolworths Group Limited as a customer service representative. Following incidents involving Mr Najmitdinov on 18 and 23 January 2019 Woolworths gave him the opportunity to demonstrate why his employment should not be terminated. Three days later, he complained to the President of the Anti-Discrimination Board. In that complaint, and in further information provided over the following fortnight, Mr Najmitdinov alleged that Woolworths had discriminated against him on the ground of disability and victimised him on two separate occasions: Anti-Discrimination Act 1977 (NSW), s 49D(2) and s 50.
Before the Board investigated these complaints, Mr Najmitdinov applied to the Tribunal for an interim order to preserve the status quo by preventing Woolworths from terminating his employment. For the reasons given below, I have refused the application for an interim order. The Board will continue with its investigation of Mr Najmitdinov's complaints.
[2]
Interim orders - legal principles
The Tribunal has power to make an interim order under s 105(1)(c) of the Anti-Discrimination Act:
(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:
(a) to preserve the status quo between the parties to the complaint, or
(b) to preserve the rights of the parties to the complaint, or
(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,
pending determination of the matter the subject of the complaint.
(2) Section 89 of the Administrative Decisions Tribunal Act 1997 applies to an interim order of the Tribunal in the same way as it applies to an original decision of the Tribunal.
Section 105 is modelled on the power of courts to make interlocutory injunctions. Common law principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89]. Before making an interim order, a decision maker must consider whether the applicant has made out a prima facie case. An applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending the hearing. The second inquiry is whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by the injury which the respondent would suffer if an interim order were granted: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 80; [2006] HCA 46 at [65].
Authors Rees, Rice and Allen identify the two overlapping reasons for giving courts and tribunals power to make interim orders:
... first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint: N Rees, S Rice and D Allen, Australian Anti-Discrimination Law, Text, Cases and Materials (3rd ed, 2018, The Federation Press) at 897.
The Tribunal's interim order powers in s 105 of the Anti-Discrimination Act have most commonly been invoked where an employer intends to dismiss an employee on allegedly discriminatory grounds. An example is where a university threatens to compulsorily retire an employee in breach of his or her statutory rights: White v University of Sydney (1992) EOC 92-462; Ivory v Griffith University [1996] QADT 15; see discussion of interim order in an employment context in Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [14] and [15].
Mr Najmitdinov submits that he would have a prima facie case of victimisation in breach of s 50 of the Anti-Discrimination Act if his employment were terminated. He also submits that the balance of convenience favours making an interim order.
[3]
Prima facie case of victimisation?
Section 50 of the Anti-Discrimination Act provides that:
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
There are three elements of s 50(1). First, the applicant must have been subjected to a detriment. Secondly, the applicant must have done one of the things listed in s 50(1)(a) - (d) or the discriminator knows or suspects that the person has done or intends to do any of those things. Thirdly, the detriment must be "on the ground" that the applicant has done, or intends to do, one of those things.
For the purpose of these proceedings, Woolworths does not dispute that terminating Mr Najmitdinov's employment would subject him to a detriment. Woolworths also concedes that, in accordance with s 50(1)(c), Mr Najmitdinov has alleged that employees of Woolworths have "committed an act which, whether or not the allegation so states, would amount to a contravention of" the Anti-Discrimination Act." There are at least three instances where Mr Najmitdinov submits that emails he sent fall within s 50(1)(c).
On 19 October 2018, Mr Najmitdinov sent an email which said, in part, as follows:
Just yesterday I got a confirmation from an expert to whom I was referred by a state authority where I will be lodging my complaint. I got confirmation on the merits of my case and the follow on complaints, to be lodged with a state authority. This will be a very serious case.
On 15 November 2018, Mr Najmitdinov emailed another employee asking her to provide contact details for a "dedicated anti-discrimination officer from Woolworths". Mr Najmitdinov asked for support in relation to that request "as well as other requests I'm putting through my application with the state authority."
On 24 December 2018, Mr Najmitdinov sent an email which stated, in part, that:
I would like to formally inform you that I have registered a complaint with a state authority in relation to a prolonged and severe mistreatment I have been subjected to in the aftermath of raising complaints at the end of June and afterwards. . . .
The final element of s 50 is that the detriment (the threat of termination) is "on the ground of" Mr Najmitdinov having made one or more allegations that come within s 50(1)(c) of the Anti-Discrimination Act. The allegations do not have to be the sole reason for the detriment as long as they are a 'substantial or operative' factor: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70] quoting Buchannan J in Penhall-Jones v New South Wales [2007] FCA 925. The critical issue is whether Mr Najmitdinov has provided evidence which demonstrates a sufficient likelihood of a causal connection between any allegations under s 50(1)(c) and the threatened termination to justify preserving the status quo pending the hearing.
The incidents which triggered an investigation and then a finding that the allegations were substantiated, occurred on 18 and 23 January 2019. Woolworths alleged that Mr Najmitdinov: was not performing the duties of his role as a customer service representative relating to servicing customer enquiries, had failed to follow a reasonable instruction from management, had refused to leave the workplace after being asked to do so, and had displayed disruptive and unprofessional behaviour.
Mr Najmitdinov set out his version of events in an email of 4 February 2019. He denies that he: disobeyed any reasonable instruction, refused to leave the workplace after being asked or displayed any aggressive or unprofessional behaviour. In short, he submitted to the Tribunal that Woolworths had made up the allegations as an excuse to terminate his employment. He said they did so because he had made allegations of discrimination.
According to Mr Najmitdinov, that inference can be drawn, because of the proximity between the allegations of discrimination, especially the allegation on 24 December 2018, and the January 2019 incidents. Mr Najmitdinov also referred to the proximity of other detrimental events to emails he had sent but none of those emails contain allegations that would come within s 50(1)(c) of the Anti-Discrimination Act.
Woolworths submitted that an inference could not be drawn that there was any connection between the threatened termination and Mr Najmitdinov's allegations under s 50(1)(c) of the Anti-Discrimination Act. That submission is supported the history of disciplinary action against Mr Najmitdinov. In brief, that history includes the following incidents and findings.
On 19 January 2018, Woolworths gave Mr Najmitdinov a written formal warning in relation to conduct on 22 December 2017. It was alleged that he was observed unplugging the cables at the back of a workstation despite having been told of the correct process. That investigation of alleged misconduct pre-dates any allegation Mr Najmitdinov subsequently made under s 50(1)(c) of the Anti-Discrimination Act.
On 16 August 2018, Woolworths notified Mr Najmitdinov of a proposed investigation of allegations of inappropriate workplace behaviour on 11 and 12 August 2018. Those allegations included that Mr Najmitdinov raised his voice and spoke in an aggressive tone to a customer on the phone, stuck his fingers up at another employee when she was on the phone to a customer who had phoned to complain about his conduct, taken a photo of another employee's computer screen and refused to delete the photo. Following an investigation, Woolworths found each of these allegations substantiated. Woolworths expressed the view that the conduct was a serious breach of the code of conduct and the appropriate workplace behaviour policy and issued Mr Najmitdinov with a final warning. Mr Najmitdinov denied displaying any of the alleged unprofessional or inappropriate behaviours.
Again, this investigation of alleged misconduct pre-dates any of the three allegations Mr Najmitdinov subsequently made under s 50(1)(c) of the Anti-Discrimination Act. In addition, these allegations of aggressive behaviour and refusal to follow instructions are similar to the allegations of January 2019. That fact does not support Mr Najmitdinov's assertion that Woolworths manufactured the January 2019 to punish him for complaining about discrimination. Woolworths also pointed out that one of the allegations against Mr Najmitdinov arose from a complaint by a customer that Mr Najmitdinov had been aggressive during a phone call. The fact that the complaint was made by someone external to Woolworths, but is consistent with other allegations about him, does not support Mr Najmitdinov's case that the January 2019 allegations were manufactured.
I accept that Mr Najmitdinov's allegation of discrimination made on 24 December 2018 is proximate to the alleged incidents on 18 and 23 January 2019. But, given the history, there is almost no basis for inferring any connection between the threatened termination and Mr Najmitdinov's allegations.
Nothing Mr Najmitdinov pointed to in the material persuades me that, if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the hearing.
[4]
Balance of convenience
The second part of the test for the granting of an interim order is whether the inconvenience or injury which the applicant would be likely to suffer if an order were refused, outweighs or is outweighed by the injury which the respondent would suffer if an order were granted.
In his application, Mr Najmitdinov states that, "if I lose my job I will be left with no means to sustain myself." There was no evidence as to any other source of income he may have or his prospects of being re-employed. Although Mr Najmitdinov provided no formal evidence, I accept that he is currently three weeks behind in his rent and that his prospects of obtaining alternative employment are low. I note, however, that even if Woolworths terminates Mr Najmitdinov's employment, and he is ultimately successful, he may be entitled to a remedy including lost wages: Anti-Discrimination Act, s 108(2)(a).
I have not taken into account the fact that Mr Najmitdinov will be deprived of access to Woolworths' email system to support his complaints if he is terminated. If there is relevant information contained in that system, which he does not already have, Mr Najmitdinov will have the opportunity to summons that material if the occasion arises.
From Woolworths' point of view, they have been paying Mr Najmitdinov since his suspension on 24 January 2019. If an interim order is granted, the Anti-Discrimination Board will continue its investigation which could take some months. Woolworths will not be able to recoup those wages if Mr Najmitdinov is unsuccessful.
There is prejudice to Mr Najmitdinov if an interim order is refused and to Woolworths if an interim order is granted. However, given Mr Najmitdinov's extremely low prospects of success, an interim order is not justified.
[5]
Order
1. The applicant's application for an interim order is refused.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 28 March 2019