In this week’s blog we take a look at a recent employment law case in which Perram J of the Federal Court of Australia ordered that an employer reinstate an employee who had been dismissed, on an interim basis whilst their general protections application is heard by the court. This was ultimately ordered as the dismissal would have significant consequences for the employee, Mr Christopher Toppo as he is currently on a visa sponsored by his employer meaning he would have to leave the country prior to his matter being dealt with by the court were he not reinstated. 

Toppo v P & J Harris & Sons (A Partnership) [2024] FCA 257 

Background

The employer in this matter is a partnership named P & J Harris & Sons in which the Harris Family (led by Mr Harris) conducts agricultural enterprises such as cotton farming. Mr Toppo commenced employment with P & J Harris & Sons on 17 February 2021 as a cotton trader pursuant to a written employment agreement. 

Mr Toppo is a French-Irish dual citizen and has been working for P & J Harris & Sons under a Temporary Skills Shortage (subclass 482) visa. P & J Harris & Sons is Mr Toppo’s nominated sponsor and under the conditions of his visa, if Mr Toppo’s employment were to end he would be required to find new employment as a commodities trader within 60 days or he would be required to leave the country. 

Mr Toppo’s employment was terminated on 30 January 2024 following a dispute between Mr Toppo and Mr Harris regarding the payment of a bonus to Mr Toppo. It was noted by Perram J that Mr Harris had gone to some lengths to ensure that any bonus arrangements were never recorded in writing which ultimately led to the dispute between the parties. 

It was Mr Toppo’s argument that he was dismissed in breach of the general protections provisions of the Fair Work Act 2009 (Cth) as he had exercised a workplace right to inquire or complain about the non-payment of his bonus. 

It was Mr Harris’ argument on behalf of P & J Harris & Sons’ that Mr Toppo was not dismissed for making a complaint about his bonus, but rather he was dismissed because of the manner in which he was making those complaints. Mr Harris relied on the express contractual term in the employment contract that he could terminate Mr Toppo’s employment without cause by providing two week’s notice. 

What was the court required to determine?

As this was an interim hearing, Perram J was required to determine whether the Court should order reinstatement of Mr Toppo on an interim basis, prior to the matter having a final substantive hearing in the Federal Court. The two legal questions that Perram J was required to answer before granting Mr Toppo’s reinstatement: 

  1. whether there is a serious question to be tried at the substantive final hearing; and
     
  2. whether the balance of convenience favours the making of the interim orders for reinstatement. 

Whether there is a serious question to be tried?

Ultimately based on the facts of the matter Perram J found that there were two serious questions that would need to be answered at trial in this matter. The first question was 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 as alleged. The second question was whether Mr Harris dismissed Mr Toppo because he inquired into or complained about the non-payment of his bonus. 

Balance of Convenience 

The next issue that Perram J was required to deal with before granting the interim order of reinstatement was whether the balance on convenience favoured the granting of the orders. In simple terms this exercise requires the court to balance the inconvenience caused for P & J Harris & Sons by granting the interim order against the consequences of not granting the orders for Mr Toppo. 

During the hearing Mr Toppo indicated that he is prepared to be given no work to do if he were reinstated by P & J Harris & Sons. This was accepted by Mr Harris to alleviate their concerns about the difficulty of reincorporating Mr Toppo back into the business prior to a final hearing. The other consideration taken into account by Perram J was the fact that it was unlikely that Mr Toppo would be able to find alternative employment as a commodities trader before the end of March and that he would ultimately be required to leave the country when his visa would be withdrawn. Perram J also noted that Mr Toppo’s wife and two-year old daughter were both French citizens and there was a significant risk they would also be required to relocate overseas if Mr Toppo were not reinstated. 

Ultimately the balance of convenience favoured granting of the orders given the significant consequences for Mr Toppo with the limited inconvenience for P & J Harris & Sons.

Other Considerations

In granting the interim order of reinstatement Perram J also dealt with several other considerations that were raised during the proceedings. The first consideration was that it would not be appropriate to require Mr Toppo to provide securities of damages. A “security of damages” would require Mr Toppo to pay money to the court in the event his case is unsuccessful, which would then be paid to P & J Harris & Sons to compensate them for any loss suffered as a result of the orders. This was ultimately rejected as the loss identified by P & J Harris & Sons was the wages that it would have to pay to Mr Toppo. Perram J noted that a failure on Mr Toppo’s part to fail to obtain a final order for reinstatement would not retrospectively evaporate the legal obligation for an employer to pay an employee for being available to work.  

The second consideration was that P & J Harris & Sons should be restrained from withdrawing its sponsorship of Mr Toppo’s employment. This is because If P & J Harris & Sons are not restrained from withdrawing its sponsorship of Mr Toppo’s visa then they may be tempted to do so and thereby subvert the interim order made by his honour and facilitating Mr Toppo’s early departure from Australia. The next consideration was that P & J Harris & Sons should cooperate in the renewal of Mr Toppo’s visa in November 2024 if the proceedings had not been determined. 

Finally Perram J considered that it would not be necessary for the court to restrain P & J Harris & Sons from taking any further adverse action against Mr Toppo.

Lessons for employers 

Despite only being at the initial stages of the litigation, this matter highlights the importance for employers to have well documented policies and procedures such as a bonus policy. In this matter, if the bonus policy had been well documented it is unlikely that there would have been such dispute about its terms and how any bonuses are to be calculated. This would have ultimately avoided the need for the matter to be heard in court and could have potentially avoided both parties incurring significant legal costs in the proceedings. 

Need further help? 

If you require assistance with drafting workplace polices, defending a general protections application are or if you would like further information about anything in this article please contact EI Legal at: info@eilegal.com.au

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