Pelecanos v Brisbane Marine Pilots Pty Ltd

REASONS FOR JUDGMENT 1 In the principal proceedings, the applicants allege that the first respondent breached s 340(1) of the Fair Work Act 2009 (Cth) and breached a contract of employment. The first applicant seeks reinstatement, compensation, damages and other remedies. 2 The present application seeks an order that, until the hearing and determination of the principal application, the first respondent reinstate the first applicant to his former employment, and other interlocutory orders. 3 Section 340 of the Fair Work Act provides relevantly: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). 4 The principal application and the interlocutory application are brought pursuant to s 545 which provides, relevantly: (1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. … (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. 5 The first applicant alleges that the first respondent took certain actions against him that included the termination of his employment and refusing to refer allegations made against him to a disciplinary panel as was required under his employment contract. The first applicant alleges that these actions were "adverse action" taken on the basis that he had exercised his workplace rights by making a workers' compensation claim and making complaints about his employment and the conduct of other employees. 6 The parties were agreed that the principles in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 82 apply to the present application. The first applicant must satisfy the court of two matters, namely: (a) a prima facie case in the sense of a "sufficient likelihood of success to justify in the circumstances of the preservation of the status quo pending trial"; and (b) that the balance of convenience favours the first applicant. 7 In CEPU v Blue Star Pacific Proprietary Limited [2009] FCA 726 at [21] Greenwood J summarised the applicable principles as follows: It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. In this case, the applicants contend that they have been deprived of their employment for a prohibited reason in circumstances where the legislation enacting the prohibition and conferring remedial rights in respect of contraventions of the prohibition, is directed to the protection and preservation of the freedom of association (Division 3 of Part 16 of the Act). 8 I am prepared to find that the first applicant has demonstrated a prima facie case. However, it seems to me that the balance of convenience is strongly against the grant of an interlocutory injunction. The factors that are particularly relevant in reaching that conclusion are these. 9 Firstly, the grant of the mandatory interlocutory injunction sought by the first applicant would disturb the status quo. The first applicant has not actually attended the first respondent's workplace since about December 2012. At first, he was off work on sick leave, and then his employment was terminated on 19 July 2013. Accordingly, the grant of an interlocutory injunction would involve returning the first applicant to a workplace from which he has been absent for a substantial time. 10 Secondly, the first applicant has delayed in commencing proceedings and seeking interlocutory relief. Although his employment was terminated on 19 July 2013, proceedings were not commenced until 27 November 2013. The evidence shows that his solicitors had foreshadowed proceedings for reinstatement and other remedies at an early stage, yet no interlocutory application for reinstatement was filed at that time. The fact that Mr Pelecanos did not move with any urgency tells against the grant of an injunction of this kind. 11 Thirdly, Mr Pelecanos' marine pilots licence has lapsed. He is required to undertake what is called a "check trip" in order to regain his licence. There is no adequate indication as to how long it would take for Mr Pelecanos to regain his licence in the event that he underwent a check trip. Mr Pelecanos submitted that the longer he is off the water, the harder it will be for him to obtain reinstatement in the future or to obtain further work as a pilot. He submitted that, inevitably, the longer he is off work, the greater the loss of the skills that he has gained. While I accept Mr Pelecanos' submissions in that regard, I give greater weight to the fact that if I acceded to his application, I would be reinstating him to a job that he cannot perform. 12 Fourthly, the evidence shows that there is considerable hostility between the first applicant and various of the individual respondents to the proceedings. Mr Pelecanos admits that he used foul and abusive language against two of the individual respondents in November 2013 and February 2014. One of those individual respondents is now the managing director of the first respondent, having been elected to that position by other pilots. Another remains on active duty as a pilot. The evidence suggests that there will inevitably be interaction between the first applicant and the other respondents in the event that his employment were reinstated. 13 The hostility between the parties tells against the reinstatement of employment on an interlocutory basis. I note that an application brought by two of the individual respondents for peace and good behaviour orders against Mr Pelecanos is on foot in the Magistrates Court. It is apparent, whether it is justified or not, that Mr Pelecanos has lost the confidence and trust of the management of the first respondent. In these circumstances, it would not be appropriate, on an interlocutory basis, to reinstate Mr Pelecanos. 14 I am not prejudging the question of whether there should ultimately be reinstatement in the event that Mr Pelecanos is successful, but I do not think that it is appropriate on an interlocutory basis. 15 I take into account the cogent matters raised on behalf of Mr Pelecanos as to why his employment ought to be reinstated on an interlocutory basis. These matters include the importance of employment to his well-being and psychological health. I take into account the evidence, limited though it is, that he has now recovered from the psychiatric condition that disabled him from work for a period of time in 2012. I take into account his assertion that the incidents in November 2013 and February 2014 were out of character. I also take into account his contention that damages will not be an adequate remedy given his particular employment circumstances, including that he is now 61 years old, that his former employer is the only provider of employment of this kind in Brisbane and that it is very difficult and a time-consuming process to obtain employment elsewhere as a marine pilot. 16 However, it seems to me that the balance of convenience clearly favours refusal of the first applicant's application for a mandatory interlocutory injunction reinstating him to his former employment. The application will be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.