Case note: Fair work “adverse action” claim wins interlocutory injunction: Workplace

Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 (25 November 2009).

Justice Collier of the Federal Court has issued an interlocutory injunction in favour of an Applicant to stop her potential dismissal.

The Applicant, Elizabeth Louise Jones, was the Chief Executive Officer of the Queensland Tertiary Admissions Centre (QTAC). The Centre processes applications for admissions to the majority of undergraduate courses offered by universities in Queensland and also Bond University, The Australian Maritime College in Tasmania and to some courses at universities in Northern New South Wales. It also processes applications for diploma courses in Queensland Institutes of TAFE and other private providers of post-secondary education.

Ms Jones had been employed by QTAC since about 2002 without any issue being raised about her employment. From the beginning of this year, she was QTAC’s chief negotiator with the Australian Services Union (ASU) in the re-negotiation of the Enterprise Agreement governing the terms and conditions of QTAC’s employees. As a result of her involvement as the negotiator, she was the subject of a number of complaints by the ASU, named individuals and also some complaints which were made anonymously. An investigator was instructed to provide a report, and as a result of the investigator’s report, QTAC was of the belief that Ms Jones had acted in a way which amounted to “bullying or harassment of employees” (at [28]). Ms Jones claimed that the investigation instituted by QTAC into her behaviour was improper and that she was concerned, not only by the investigation, but also by the prospect that she could have her employment terminated.

In her application for an interlocutory injunction and for final relief, Ms Jones asserted that there had been various breaches of the Fair Work Act 2009 (Cth) and her contract of employment, that damages were not an adequate remedy and that on the balance of convenience an interlocutory injunction should be granted pending a final determination of her action.

Ms Jones was successful in arguing that there was a serious question to be tried in that there had been a breach on a prima facie level of the Fair Work Act. Paragraph [17] of the judgment sets out the summary of the submissions made by Ms Jones concerning the Fair Work Act. The summary reads as follows:

“[17] In summary, the case submitted by Ms Jones as to the existence of a serious question to be tried can be summarised as follows:

Section 340(1) of the FW Act provides that a person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right.
A “workplace right” means, inter alia, that a person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (s 341(1)(a)), or is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b)).
“Adverse action” is taken by an employer against an employee if, inter alia, the employer dismisses the employee, or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice (s 342(1) Item 1). Threatening to take such action also constitutes adverse action (s 342(2)).
Ms Jones’ workplace right was in respect of either:

her role or responsibility in negotiating the Enterprise Agreement on behalf of QTAC: s 341(1)(a); or

her participation in the process of making an Enterprise Agreement: s 341(1)(b).

In relation to Ms Jones’ participation in the process of making an Enterprise Agreement:

Ms Jones had a role as a “bargaining representative” of QTAC for the purposes of the Enterprise Agreement negotiations;

so far as relevant s 176 of the FW Act provides that:

“a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement. (s 176(1)(d))”

in a letter to the ASU dated 18 July 2009, Mr McAndrew said that the QTAC Board had confirmed that Ms Jones would continue to be QTAC’s “bargaining representative”.

QTAC has taken, and is proposing to take, adverse action against Ms Jones because she has exercised a workplace right, in that:

adverse action has already been taken by QTAC in relation to the commissioning and conduct of the Carol Watson report, and informing QTAC staff of the report;

QTAC proposes to take adverse action in that it threatens to terminate or otherwise discipline Ms Jones because of the view QTAC takes of the Carol Watson report and the various complaints.”

The Judge did not find there was a prima facie breach of the contract of employment. However, in view of the serious question concerning the breach of the Fair Work Act, His Honour found there was a serious question to be tried and that damages would not be an adequate remedy. The Judge said (at [49]):

“Discipline of a Chief Executive Officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view, it is likely that such a course of conduct would have a detrimental effect on Ms Jones’ reputation and impose a stigma which could adversely affect her future career prospects …”

His Honour, on balance, favoured the making of the interlocutory injunction sought (at [52]) and that the difficulties that might cause QTAC in the granting of such an injunction could be ameliorated by the accelerated timetable for the hearing of the substantive issues in the proceedings (at [58]).

This case is further evidence of the various uses which some of the provisions of the Fair Work Act will be able to reveal as useful adjuncts to employment disputes even for people who are not otherwise covered by industrial instruments.