Pelecanos v Brisbane Marine Pilots Pty Ltd

REASONS FOR JUDGMENT 1 The first applicant was employed by the first respondent as a marine pilot until his employment was terminated on 19 July 2013. In the principal proceeding, the applicants allege that by the termination the first respondent breached s 340(1) of the Fair Work Act 2009 (Cth) and the contract of employment. The first applicant seeks reinstatement, compensation, damages and other remedies. 2 The first applicant presently seeks an interlocutory order to the effect that the first respondent facilitate a refamiliarisation program that will allow him to obtain renewal of his marine pilot licence. 3 The first applicant's pilot licence expired in February 2013. He did not fill out paperwork necessary to renew his licence before it expired because, he says, of a psychological condition he suffered at the time. In March 2014, the first applicant applied for renewal of his licence but was informed by the Harbour Master for Brisbane that he would first need to undertake a refamiliarisation program and a graduated return to unrestricted piloting. In July 2014, a program was finalised that requires the first applicant to undertake observation trips, mentor trips and check trips with a licensed marine pilot. 4 The first respondent is the only provider of pilotage services in the Brisbane pilotage area, so the refamiliarisation program could only be undertaken with the first respondent. The difficulty is that the first applicant's employment was terminated and there is a hostile relationship between the parties. Correspondence from the Harbour Master indicates that the program should be completed by 31 January 2015 or, otherwise, the Harbour Master may have to review its suitability. The trial of the principal proceeding will not take place until March 2015. 5 On 18 March 2014, I dismissed the first applicant's application for a mandatory interlocutory injunction reinstating him to his former employment: Pelecanos v Brisbane Marine Pilots Pty Ltd [2014] FCA 294. I adopt but will not repeat my summary in those reasons of the background, the legislative provisions and the principles applicable to an interlocutory injunction. I found that the first applicant had established a prima facie case, but that the balance of convenience was strongly against granting an interlocutory injunction. In particular, I considered the following factors were significant: (a) The grant of injunctions would involve returning the first applicant to a workplace that he had not attended for some 15 months, and that would disturb the status quo. (b) The first applicant had delayed in commencing proceedings and in seeking interlocutory relief. (c) The first applicant's pilot licence had lapsed and he would be returned to a job he could not perform if the injunction were granted. (d) The hostility between the parties, including an unresolved application for peace and good behaviour orders against the first applicant, and the loss of confidence and trust in the first applicant by the management staff of the first respondent told against granting the orders sought. (e) The factors that favoured the grant of an injunction, including the first applicant's contention that damages would not be an adequate remedy given his age and difficulty in finding other employment and the importance of employment to his psychological health and wellbeing, did not outweigh the factors indicated above. 6 In the present application, the first applicant maintained that he has demonstrated a prima facie case in the principal proceeding. The first respondent submitted that there is no prima facie case, or, if there is, it is a very weak one. 7 The employer has the onus, pursuant to s 361(1), of demonstrating that adverse action has not been taken for one of the reasons set out in s 340 of the Fair Work Act. The first applicant contends that his employment was terminated because he had made certain workers' compensation claims and had made complaints about his employment and other employees. 8 The first respondent's letter terminating the first applicant's employment did not state any reason for the termination. The first respondent now contends that the employment was terminated because, inter alia, the first applicant was an unsafe marine pilot. It relies, in particular, on an incident that occurred some nine months prior to the termination. The outcome of the case may depend largely on the credibility of the first applicant's witnesses. Given the onus of proof and these circumstances, I consider that the first applicant has demonstrated a prima facie case, but I cannot reach any conclusion as to the strength or weakness of the parties' respective cases at this stage. 9 The first applicant submitted that the following factors favour the grant of the orders he seeks: (a) The level of hostility between the parties has abated to some extent. He submitted that defamation proceedings contemplated by one of the individual respondents and another employee had not eventuated. He also submitted that the peace and good behaviour proceedings had resolved. (b) Conditions have now been stipulated by the Harbour Master for the applicant to have his licence renewed. The refamiliarisation program must be completed by the end of January 2015. If it is not done by then there is a risk that considerably more onerous conditions will be imposed, including the possibility that he would have to start training as a pilot from scratch, which could take two years. The first applicant is presently 61 years old, so his remaining working life is quite limited. (c) There is no evidence that the maritime authorities or the Harbour Master consider the first applicant to be an unsafe pilot. In fact, the Harbour Master has only required the limited refamiliarisation program to be done in order for him to renew his licence. (d) The first applicant's reputation in the industry is affected by the fact that he does not have a current licence. (e) The requirements on the first respondent in facilitating the refamiliarisation program are not onerous. There will be no additional costs, but to the extent that there may be, the first applicant will pay those costs, as well as giving the usual undertaking as to damages. (f) Damages will not be an adequate remedy because of, inter alia, the psychological effects of not having his licence and because of his age. (g) The lack of a current licence may affect his ability to obtain the remedy of reinstatement to his previous employment in the event that he is successful in the principal proceeding. 10 I consider that the following factors are of particular significance in assessing the balance of convenience: (a) It is evident that the hostility between the parties remains. The peace and good behaviour proceedings resulted in a settlement under which the first applicant agreed, inter alia: a. That he will keep the peace and be of good behaviour towards Mr Williams and Mr Winn; b. That he will not attend the workplace or immediate surrounds of Brisbane Marine Pilots Pty Ltd at Albion in Brisbane, Mooloolaba, and Whyte Island. This sub-clause will cease to apply if Mr Pelecanos is reinstated to the employment of Brisbane Marine Pilots Pty Ltd; and c. That he will not approach the residences of either Mr Williams or Mr Winn at any time. The agreement does not mark a reconciliation of any kind between the parties, and in fact, the affidavits filed in this application demonstrate that there remains considerable ill will between the first applicant and, in particular, Mr Winn, the fourth respondent, and Mr Williams, the General Manager of the first respondent. There is also evidence that the Human Resources Coordinator would not wish to be involved with the first applicant. It would usually be the General Manager and Human Resources Coordinator who would be the persons organising a program such as that sought by the first applicant. If I were to order that the first respondent facilitate such a program, it would involve imposing on the first respondent a relationship which bears some resemblance to that of employer and employee when it is clear that the first applicant has lost, for whatever reason, the trust and confidence of the management of the first respondent. (b) The first respondent has provided sworn evidence that it considers the first applicant to be an unsafe marine pilot. That evidence has not been tested, but it is at least evidence of the belief of the management staff of the first respondent. To require the first respondent to facilitate the program would be to compel it to place someone who it believes is not competent in a position of great responsibility, involving dangers to the first respondent's business, as well as risks to other persons. In saying this, I make no judgment about the competence or otherwise of the first applicant, but am merely referring to the belief as to his competence deposed to on behalf of the first respondent. The belief of the first respondent's management staff tells against an order requiring the first respondent to facilitate such a program, in which the first applicant would be piloting ships on behalf of the first respondent. While that concern is ameliorated to some extent by the fact that a licensed pilot would be present to supervise the first applicant, it does not completely address the concern. (c) The first respondent accepts that if reinstatement is ultimately ordered it will have to retrain the first applicant and bear the cost of doing so, including the cost of his wages while he retrains. (d) The evidence does not establish that the extent of the retraining that will be required would be significantly greater if it is done later in 2015, rather than by the end of January 2015. (e) The first respondent concedes that if the injunction is refused it could not submit at the trial that any greater difficulty in the first applicant renewing his licence at that time, compared to now, is a reason why his employment should not be reinstated. In other words, any further delay between now and the trial in obtaining a renewal of the first applicant's licence will not affect his prospects of obtaining reinstatement to his former position. (f) The agreement that the first applicant will not attend the workplace or immediate surrounds of the first respondent's workplace at Albion, Mooloolaba and Whyte Island is significant. There is evidence that the first applicant requires some retraining in order to properly undertake the refamiliarisation program, and that this would usually take place at the Albion premises. More importantly, there is also evidence that the first applicant would have to attend the Mooloolaba premises, and is likely to have to attend the Whyte Island premises, in order to carry out the refamiliarisation program. I consider that it would be inappropriate to make an order which would have the effect of relieving the first applicant from his obligations under the agreement. Such an order would have the collateral effect of undermining the basis upon which the peace and good behaviour proceedings settled. (g) If the first applicant is not successful in the principal proceeding, then the first respondent would have been put to the trouble and difficulty of facilitating the refamiliarisation program for the first applicant, when, as it turned out, he was not entitled to the benefit of that program. While this factor is not decisive, it is a relevant one. 11 Taking into account all of these factors, I consider that the balance of convenience favours dismissing the interlocutory application brought by the first applicant. 12 I will reserve costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.