Toppo v P & J Harris & Sons

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON THE APPLICANT, BY HIS COUNSEL, PROFFERING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

1. Until further order, the Respondent reinstate the Applicant to his former employment on the same terms and conditions that applied immediately prior to his dismissal on 30 January 2024.
2. Until further order, the Respondent be restrained from withdrawing its sponsorship of the Applicant's visa.
3. The matter be expedited.
4. There be no order as to costs.
5. The matter be docketed to a docket judge. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an application for an interim order compelling the Respondent to reinstate the Applicant ('Mr Toppo') to his former employment. The Respondent, P & J Harris & Sons, is a partnership by which the Harris family conducts agricultural enterprises including the farming of cotton. From 17 February 2021 the Respondent employed Mr Toppo as a cotton trader. The head of the family is Mr Peter Harris. Mr Harris dismissed Mr Toppo from the Respondent's employ on 30 January 2024 pursuant to an express contractual entitlement to do so without cause on the payment of two weeks' salary. The dispute concerns Mr Harris's subjective reasons for dismissing Mr Toppo. Mr Toppo says that he was dismissed by Mr Harris because he inquired or complained about the non-payment of his bonus. For the purposes of the interim application, the Respondent accepts that if these were Mr Harris's reasons then the dismissal will have been unlawful and that this Court would have the power to grant relief including an interim order for reinstatement (although it does not accept that this power should be exercised). 2 An interim reinstatement order will be granted if Mr Toppo demonstrates that there is a serious question to be tried as to whether he is entitled to a final reinstatement order and the balance of convenience favours the making of such an order: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65]-[72] per Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed at [19]); Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726; 184 IR 333 at [21] per Greenwood J. 3 The first issue is therefore whether there is a serious question to be tried that Mr Harris's reasons for dismissing Mr Toppo included that he had inquired or complained about the non-payment of his bonus. The Respondent does not dispute that amongst the topics being discussed by Mr Harris and Mr Toppo at the time of Mr Toppo's dismissal was his bonus. Mr Toppo characterises his part in these discussions as the inquiry or complaint to which I have referred. The Respondent's position draws on the principle established in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 ('CFMEU v BHP'). In that case the question was whether an employee was unlawfully dismissed for taking part in a protected industrial activity - namely, a protest - or, rather, for carrying a sign in the course of that protest which contravened the employer's workplace conduct policy. The policy prohibited conduct which was offensive and the sign said 'No principles SCABS No guts'. It was found by a majority of the Court that the employer had dismissed the employee because of the offensive sign and not because the employee was taking part in a lawful protest. 4 On a similar basis, the Respondent submits that the reason Mr Harris dismissed Mr Toppo was not that he inquired or complained about the non-payment of his bonus. Rather, it was because of the manner in which he pursued that inquiry or complaint. According to Mr Harris, what especially vexed him was Mr Toppo's repeated insistence that his bonus be calculated by reference to various spreadsheet calculations done by Mr Toppo rather than by reference to the audited profit and loss statements of the business. Mr Harris says that he and Mr Toppo had agreed in a car trip from the Respondent's offices to Moree Airport in March 2022 that the audited profit and loss statements would be used as the basis for the calculation of Mr Toppo's bonus. Mr Toppo's version of the same car trip is that it was agreed that his bonus would be calculated on the basis of the profit and loss figures which, it may be inferred, was what he subsequently sought to do with his spreadsheets. 5 There may ultimately be some problems with Mr Toppo's evidence about what occurred during the car trip. Both parties agree that whatever agreement was reached in the car was reached only after Mr Harris had dismissed Mr Toppo. From this one might infer that Mr Harris was negotiating from a position of strength and therefore unlikely to have made the concessions now asserted by Mr Toppo. It would not be safe, however, to venture further down that path which is more suitable for trial. I conclude that there is a serious question to be tried as to whether the parties agreed as a term of Mr Toppo's contract of employment that his bonus should be paid on the basis of profit and loss figures. 6 Once that position is reached, I accept that there is also a serious question to be tried as to whether Mr Harris dismissed Mr Toppo because he inquired into or complained about the non-payment of his bonus. Mr Harris has given sworn evidence of his reasons for dismissing Mr Toppo and it is quite clear that he denies on oath that Mr Toppo was dismissed for the reasons which Mr Toppo now alleges. Here the Respondent's argument is the one described above based on CFMEU v BHP. Since there is a serious question to be tried as to whether Mr Toppo was entitled to claim his bonus on the basis of the profit and loss figures, I do not accept the submission that the manner by which he sought to do so (i.e. the use of his spreadsheets) can, at least at this stage, be conceptually separated from the alleged inquiry or complaint. In adverse action cases, conceptual separation arguments of the kind in CFMEU v BHP are not uncommon. However, they typically involve careful fact finding following an exhaustive review of all the evidence and, as such, are often not suitable for resolution in the present kind of hearing. This is such a case. 7 I do not, of course, disregard Mr Harris's sworn evidence. However, it is no answer to a case based on the contractual entitlement to a bonus calculated on profit and loss. Further, for present purposes a survey of the history of the negotiations shows an arguable case that Mr Harris went to some lengths to ensure that any bonus arrangement was never recorded in writing. These negotiations include his email of 13 September 2022 which stated: Sorry cannot include in the contract. Bonus is complicated and has always been a side agreement and in my opinion discretionary and negotiable ie determining costs. 8 Moreover, there is evidence from Mr Toppo which suggests that he was paid a bonus for 2021 of $42,000 in a manner which is apparently consistent with the version of the agreement for which he now contends. Of course, that evidence has not been tested but I am far from persuaded on the present application that Mr Harris will inevitably be successful in showing that any bonus was to be calculated on the audited profit and loss statements. In saying that, however, I should not be understood as placing any onus of proof on the Respondent but rather as making an observation about whether it can dislodge what I otherwise accept Mr Toppo has already demonstrated. Another difficulty lying in the path of the Respondent's submission is the fact that bonuses appear to have been paid to Mr Toppo when the audited profit and loss statements were not yet available. Whilst there is considerable friction between the parties as to the terms of the bonus arrangement this would appear, at least arguably for present purposes, to be the result of Mr Harris's desire to ensure that it was never recorded in writing. 9 I conclude that there is a serious question to be tried as to whether Mr Toppo was unlawfully dismissed by Mr Harris because he made an inquiry or complaint about the non-payment of his bonus. As it stands, I would rate this case as being of medium strength. 10 The second issue is whether the balance of convenience favours the grant of an interim order for reinstatement. Mr Toppo has indicated that he is prepared to be given no work to do. The Respondent accepts that the effect of this concession is to render irrelevant its evidence as to the difficulties it would encounter in having Mr Toppo back in its employ. On the other hand, Mr Toppo is a French-Irish dual citizen and has been working for the Respondent under a Temporary Skills Shortage (subclass 482) visa. The Respondent is Mr Toppo's nominated sponsor. Under the conditions to which the visa is subject, once the employment relationship ends Mr Toppo has only 60 days in which to find new employment as a commodities trader. Although Mr Toppo has been endeavouring to find a new employer, he has not so far been successful. I do not think that it is likely that he will find employment as a commodities trader by the end of March when the 60-day period expires. This is because the time which is left is short and because disclosure of the existence of this litigation will most likely hinder his efforts to obtain new employment. Mr Toppo is accompanied by his wife and their two-year-old daughter, both of whom are French citizens. If Mr Toppo is not reinstated, I am satisfied that there is a significant risk that the family will have to relocate overseas, probably to France. 11 I am satisfied in that circumstance that the balance of convenience favours the grant of interim relief. 12 There are four final matters. First, although during argument there was a question raised as to whether Mr Toppo should provide security for his undertaking as to damages, I do not think it would be appropriate to require this. The Respondent nominated the wages it would have to pay Mr Toppo during his period of interim reinstatement as a loss it would suffer should it transpire that he does not obtain a final order for reinstatement. As was explained in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 ('Watson') at 466, and subject to presently immaterial exceptions, an employer may give an employee no work to do. When this occurs, it does not mean that the employer's obligation to pay wages does not arise. As John Milton said, and Dixon J approved, 'They also serve who only stand and wait': Watson at 466. Thus, a failure on Mr Toppo's part to obtain a final reinstatement order would not entail that the Respondent could recover from him the wages it has paid him in the interim. Those payments will have been made in discharge of the Respondent's legal obligation to pay Mr Toppo for being available to work for it. That legal obligation would not retrospectively evaporate merely because Mr Toppo had failed to obtain a final reinstatement order. 13 Secondly, I consider that I should also restrain the Respondent from withdrawing its sponsorship of Mr Toppo's employment. The Migration Regulations 1994 (Cth) neither permit nor prohibit an employer from withdrawing its sponsorship of an employee. Some cases have hinted that it might not be possible to withdraw sponsorship or at least not possible to do so unreasonably (Yusuf v Minister for Immigration and Multicultural Affairs [2002] FCA 737 at [36] per Spender J). Others have assumed that it is possible (Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173 at [50] per Buchanan J, Flick and Yates JJ relevantly agreeing). So too, it seems likely that a spousal sponsorship may be withdrawn (Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [20]). On balance, I think it may well be lawful for an employer to withdraw sponsorship of an employee's visa. If the Respondent is not restrained from withdrawing its sponsorship of Mr Toppo's visa then it may be tempted to do so and thereby subvert the interim order I will shortly make by facilitating Mr Toppo's early departure from Australia. The evidence suggests that Mr Harris can act decisively. He dismissed Mr Toppo in a car on the way to Moree Airport. And the latest dismissal of Mr Toppo came after an extended period of negotiation with which Mr Harris has expressed considerable frustration. Without forming a concluded view, if that assessment be correct then I think there is some risk that Mr Harris, confronted with an unpalatable interim order for reinstatement, might again act decisively. I will therefore also restrain the Respondent from withdrawing its sponsorship of Mr Toppo. I am satisfied that the Court has the power to make such an order under either s 545(1) of the Fair Work Act 2009 (Cth) or s 23 of the Federal Court Act 1976 (Cth). 14 Thirdly, Mr Toppo's visa expires in November 2024. The Respondent should cooperate in the renewal of that visa if these proceedings have not by then already been determined. I will make no order about this since there is presently neither a threat of non-cooperation nor any urgency. If this becomes a problem, and I do not see that it should, it can be raised with the docket judge. 15 Fourthly, Mr Toppo also sought a second injunction to restrain the Respondent from taking further adverse action against him. I do not see that such an injunction is necessary. 16 On Mr Toppo by his counsel proffering the usual undertaking as to damages, I make the following orders: (1) The Respondent reinstate the Applicant to his former employment on the same terms and conditions that applied immediately prior to his dismissal on 30 January 2024. (2) The Respondent be restrained from withdrawing its sponsorship of the Applicant's visa. (3) The matter be expedited. (4) There be no order as to costs. (5) The matter be docketed to a docket judge. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.