Case: Independent Education Union v Geelong Grammar School [2000] FCA 557
Outcome: cited
respondent says that the applicants have led no evidence that Mr Coombs and Mr Brown will suffer any detriment beyond the loss of wages and nor is there any evidence to suggest that damages would ultimately not be an adequate remedy both in relation to the period between the dismissal and the final hearing and, ultimately, if the applicants are successful, at trial. The terms and conditions of employment and the legislation regulating aspects of the employment relationship, ought not to be treated as, in effect, an option to comply with the law or pay damages. An employee that demonstrates dismissal from employment for a prohibited reason is, prima facie, entitled to a restoration of the employment relationship. Questions of trust, confidence, a working environment not degraded by personality difficulties and other such matters are relevant considerations in determining whether a restoration of employment ought to be ordered (see for example, Independent Education Union v Geelong Grammar School [2000] FCA 557). In this case, Mr Coombs and Mr Brown seem to be under the ultimate direction and supervision of Mr Mike Walsh. There seems to be no suggestion in any of the evidence from Ms Linnegar that the nature of the workplace or relations between these two men and other employees or Mr Walsh is unable to proceed on a sensible good working basis. Mr McKenzie notes that the current economic environment is constrained and it is likely to be very difficult for Mr Coombs and Mr Brown to obtain other employment. This evidence is consistent with the evidence from Ms Linnegar concerning the present circumstances confronting the company. Although the applicants have not put on extensive evidence about their individual financial circumstances, household situation and other matters which would demonstrate the depth of any particular difficulty confronting either of them due to the loss of their employment, I am satisfied that the order for reinstatement and a restoration of the employment relationship is a sufficiently important form of order that it ought to be made on an interlocutory basis. I am satisfied that the applicants are likely to be successful, as the evidence stands at present, in the proceeding at trial. As to the nature of a reinstatement order in the context of an interlocutory application, Finkelstein J observed in Independent Education Union v Geelong Grammar School at [34] this: Here, however, it must be remembered that reinstatement is a remedy that is available to Dr Holden if he ultimately succeeds in his claim against the school. In the case of dismissal for a prohibited reason, it might be taken to be accepted that, in the ordinary case, reinstatement is the appropriate remedy. It is true, as the High Court pointed out in Slonim v Fellows (1984) 154 CLR 505, that a court should act with some caution before it orders reinstatement because it is an interference with an employer's ordinary rights. But when the dismissal is for a prohibited reason, in particular a reason of the type mentioned in the provisions presently under consideration, the court should not be hesitant in granting the remedy in an appropriate case. Accordingly, Finkelstein J restrained the respondent from giving effect to a notice of termination of the employment of Dr Holden. The respondent further contends that the applicants unnecessarily delayed in seeking relief from the Court. However, the termination of their employment was effected on 19 June 2009. Saturday and Sunday was 20 and 21 June 2009. Presumably, Mr Coombs and Mr Brown sought legal advice on or about Monday, 22 June 2009 or Tuesday, 23 June 2009. Instructions must have been taken during those days as the solicitors for Mr Coombs and Mr Brown wrote to Blue Star complaining about the termination on 24 June 2009. The application was filed on 25 June 2009. There is no operative delay on the part of the applicants in seeking relief. Accordingly, I propose to order reinstatement of David Coombs and Craig Brown to employment on the terms and conditions that applied to their employment immediately prior to their dismissal. I propose to give leave to the parties to apply to the Court on two days notice. It may be that circumstances emerge which cause the employer to take steps to terminate the employment of either or both of these men for reasons which do not involve a prohibited reason. In that event, a provision for liberty to apply is necessary to enable the employer, in those circumstances, to vary or discharge the present order.