McCulloch v Preshil, The Margaret Lyttle Memorial School [2011] FCA 1218

FEDERAL COURT OF AUSTRALIA

McCulloch v Preshil, The Margaret Lyttle Memorial School [2011] FCA 1218 Citation: McCulloch v Preshil, The Margaret Lyttle Memorial School [2011] FCA 1218

Parties: KERRI MCCULLOCH v PRESHIL, THE MARGARET LYTTLE MEMORIAL SCHOOL

File number: VID 1147 of 2011

Judge: MARSHALL J

Date of judgment: 25 October 2011

Legislation: Fair Work Act 2009 (Cth) s 340, s 725, s 728

Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Bullock and Others v The Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464

Dates of hearing: 24 and 25 October 2011

Place: Melbourne

Division: FAIR WORK DIVISION

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Mr J Tracey

Solicitor for the Applicant: Norton Gledhill

Counsel for the Respondent: Mr R Millar

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1147 of 2011

BETWEEN: KERRI MCCULLOCH

Applicant

AND: PRESHIL, THE MARGARET LYTTLE MEMORIAL SCHOOL

Respondent

JUDGE: MARSHALL J DATE OF ORDER: 25 OCTOBER 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for interlocutory relief is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1147 of 2011

BETWEEN: KERRI MCCULLOCH

Applicant

AND: PRESHIL, THE MARGARET LYTTLE MEMORIAL SCHOOL

Respondent

JUDGE: MARSHALL J DATE: 25 OCTOBER 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Ms Kerri McCulloch, has applied to the Court for a declaration that the respondent, Preshil, The Margaret Lyttle Memorial School ("Preshil") has contravened s 340 of the Fair Work Act 2009 (Cth) ("the Act") by taking adverse action against her. 2 Ms McCulloch seeks reinstatement in her employment and an award of compensation, amongst other relief. However, she currently seeks interlocutory relief restraining Preshil from treating as valid the purported termination of her employment on 26 September 2011. 3 The Court heard the application for interlocutory relief yesterday afternoon and briefly this morning. The tests for the grant of interlocutory relief are well known. First, it is necessary to ask if Ms McCulloch has shown that there is a serious issue to be tried as to her entitlement to final relief. Second, it must be shown that Ms McCulloch is likely to suffer injury for which damages will not be an adequate remedy. Third, it must be shown that the balance of convenience favours the grant of an injunction; see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J. In considering the questions of whether there is a serious issue to be tried and where the balance of convenience lies, the relative strengths and weaknesses in an applicant's case on those matters may be weighed together, rather than those two tests being considered in isolation; see Bullock and Others v The Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464 at 472, per Woodward J (with whom Smithers and Sweeney JJ agreed).

SERIOUS QUESTION 4 Ms McCulloch commenced employment at the Arlington-Junior Campus of Preshil in January 2010. The principal of Preshil is Ms Marilyn Smith. Ms McCulloch claims that Preshil took adverse action against her because she was able to make a complaint and did make a complaint against Ms Smith in respect of alleged bullying of her. 5 Ms Smith commenced her role as Principal of Preshil in July 2010. Ms McCulloch reported to Ms Smith. Ms McCulloch considered that Ms Smith bullied her. Ms McCulloch claims to have been humiliated and extremely distressed as a result of a meeting with Ms Smith on 9 September 2011. Ms McCulloch says that at that meeting "in the heat of the moment" she told Ms Smith that she was considering resigning. Ms McCulloch emailed Ms Smith on 12 September 2011 confirming that she was not resigning. 6 In a letter dated 26 September 2011, Ms Smith wrote to Ms McCulloch accepting her resignation and stating in effect that if there was no resignation that Preshil was terminating her employment on three months notice. Preshil has notified the school community that Ms McCulloch will not be returning to her position at Preshil. 7 Ms McCulloch says that in September 2010 she complained to Mr Gahan (the then School Council President) about bullying of her by Ms Smith. Mr Gahan did not act on Ms McCulloch's complaints. 8 In March 2011 a mediation process occurred between Ms McCulloch and Ms Smith to attempt to resolve the issues between them. In or about late March - early April 2011, Ms McCulloch again complained to Mr Gahan about being bullied by Ms Smith. On or about 24 August 2011, Ms McCulloch told the current School Council President, Ms Rosh-White, that Ms Smith's treatment of her "behind closed doors was very different to my public treatment." 9 Ms Smith denies that she bullied Ms McCulloch. She considered that the March 2011 mediation process had resolved any issues between her and Ms McCulloch. Ms Smith says that the 9 September 2011 meeting with Ms McCulloch was a regular weekly meeting. Ms Smith raised some concerns with Ms McCulloch but maintains that she did so civilly. Ms Smith said that during that meeting, in the course of a discussion on the school's enrolment procedure, Ms McCulloch said, "you can have my resignation". Ms Smith says that Ms McCulloch then left the school at 11.30am and did not return. 10 Ms Smith considered that Ms McCulloch had resigned. She became aware that Ms McCulloch had informed other staff members of the resignation. Ms Smith felt it necessary to act on the resignation and advised the school community of Ms McCulloch's "departure". 11 On 23 September 2011, the Independent Education Union served an application for an unfair dismissal remedy with Fair Work Australia ("the Tribunal") on Preshil in respect of Ms McCulloch's employment. That proceeding in the Tribunal was withdrawn today. 12 Preshil contends that there is no serious issue to be tried in the proceeding because of the effect of s 725 of the Act. That section provides that: A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of these sections applies. Having brought an application to the Tribunal on 23 September 2011, Preshil says that Ms McCulloch was barred from commencing the instant application which is a general protections court application of a kind referred to in s 728. 13 The difficulty with that submission is that the application to the Tribunal was made on 23 September 2011. The letter of 26 September 2011 which pressed reliance on Ms McCulloch's resignation and purported to dismiss her in the alternative post-dated that application. The evidence does not support a dismissal as at 23 September 2011. At its highest it supports the existence of a possible threatened dismissal. There is at the very least a serious issue to be tried as to the inapplicability of s 725 to the current application before the Court. 14 I am satisfied, as the evidence now stands, that there is a serious issue to be tried whether Preshil took adverse action against Ms McCulloch because she complained to the School Council President and Ms Smith about her perceived (or actual) treatment by Ms Smith. In so finding, I also take into account that although Ms Smith's affidavit denies bullying behaviour, Ms Smith does not deny specifically that she was motivated in her dealings with Ms McCulloch, after the 9 September 2011 meeting, by Ms McCulloch's complaints against her in respect of alleged bullying.

DAMAGES 15 I am satisfied that damages would not be an adequate remedy for Ms McCulloch having regard to the fact that this proceeding involves the continuation or otherwise of what would normally be expected to be secure employment for a person in her late 50s.

BALANCE OF CONVENIENCE 16 Ms McCulloch has been paid her salary up to and including 26 December 2011. The Court is able to facilitate the hearing of an urgent trial on 28, 29 and 30 November 2011. Ms McCulloch seeks that Preshil be ordered to recognise the continuation of her employment. Such an order is of no practical consequence. If Ms McCulloch considers her personal standing in the education community requires such an order, it is sufficient for her purposes to let it be known publicly that she is challenging Preshil's action, and that in respect of those claims there has been a judicial determination that there is a serious issue to be tried. So much is sufficient interim vindication for Ms McCulloch. 17 It would be impractical to reinstate Ms McCulloch at this stage of the school year. She recognises that by agreeing to go on "gardening leave". If at trial Ms McCulloch is found to have been treated unlawfully and should the usual order of reinstatement be appropriate, the aim of the Court would be to ensure that that remedy is capable of being put in place for the commencement of the 2012 school year. That, of course, depends entirely on whether her current application succeeds, as to which there can be no current view in the absence of final evidence. Preshil should consider the above in its recruiting for 2012. The provision of an expedited trial leading to a final determination of the matter in advance of the 2012 school year weighs heavily in the balance of convenience against the grant of interlocutory relief. This is especially so when Ms McCulloch is in salary until 26 December 2011 and is not claiming reinstatement in any representative role, such as where the denial of her return to work would affect other employees, as would occur should a shop steward or workplace delegate be dismissed and seek interlocutory relief. 18 If for any reason the trial does not lead to a timely final adjudication of the issues between the parties, Ms McCulloch is at liberty to renew her application for interlocutory relief, especially if, as at 26 December 2011 she is no longer in salary and by then a final resolution of the litigation is, for some unforeseen reason, not capable of being achieved prior to the commencement of 2012 school year.

ORDER 19 The Court will order, having regard to matters affecting the balance of convenience, that the application for interlocutory relief is dismissed. The Court will now make programming orders for an early trial of the proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 27 October 2011