Injunctions and the fair work system

This is an extract from an interlocutory decision of a judge of the Federal Court of Australia rejecting an application by a specialist medical practitioner seeking to restrain his employer the Australian Capital Territory in its capacity as the operator of the Canberra Hospital from inter alia proceeding to take any adverse action against him in the context of its investigation about “allegations regarding his behaviour towards staff and colleagues” at the hospital in a general protections’ claim initiated by him and under an enterprise agreement covering his employment, pending a resolution of the general protections’ claim .

The interim decision of the judge deals with various legal principles applicable to the grant of interim or interlocutory relief in this situation.

“1    These reasons are given ex tempore given the first respondent has only undertaken not to terminate the applicant’s (Dr Alasady) position for a short period.

2    By application dated 3 August 2023, Dr Alasady applies for interim relief in the following terms:

  1. Prayers 1 to 7 of this Interlocutory Application be returnable instanter.
  2. Pursuant to r 9.02(1)(c) of the Federal Court Rules 2011 (Cth), grant leave to add Janet Zagari as a named respondent to the proceedings.
  3. Pursuant to s545 of the Fair Work Act 2009(FW Act), and subject to revocation by the Court, the First Respondent, until the determination of this Interlocutory Application, be prohibited from:
  4. taking, or putting into effect, any of the sanctions referred to in clause 125 of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021 – 2022 (Enterprise Agreement); and further or in the alternative
  5. taking adverse action against the Applicant, within the meaning of s342 of the FW Act, by dismissing the Applicant from his employment.
  6. Further, or in the alternative to Order 2, pursuant to the accrued jurisdiction of the Federal Court of Australia, and subject to revocation by the Court, orders pursuant to s17(2) of the Administrative Decisions (Judicial Review) Act 1989 (ACT)(ADJR Act) that:
  7. Ms Zagari, until the determination of this Interlocutory Application, refrain from making a decision to dismiss the Applicant from his employment with the First Respondent;
  8. the First Respondent be required to end Ms Zagari’s delegation as a sanctions delegate in respect of the final determination of the ACT Public Sector Standards Commissioner (the Third Respondent) regarding the Applicant dated 7 June 2023, and appoint an alternate sanctions delegate.
  9. By 4.00 pm on [date of the interim order] the Applicant is to serve on all named respondents and Ms Zagari:
  10. this Interlocutory Application;
  11. the affidavit of John Wilson dated 3 August 2023;
  12. the orders made by the Court.
  13. Grant leave to the Applicant to file and serve an amended originating application and further amended statement of claim within 14 days.
  14. List the proceedings, including this Interlocutory Application, for Case Management at [time] on [date].

3    By the same application, Dr Alasady also applies for interlocutory relief in the following terms:

  1. Pursuant to s545 of the FW Act, and subject to revocation by the Court, the First Respondent, until the determination of this proceeding, be prohibited from:
  2. taking, or putting into effect, any of the sanctions referred to in clause 125 of the Enterprise Agreement; and further or in the alternative
  3. taking adverse action against the Applicant, within the meaning of s342 of the FW Act, by dismissing the Applicant from his employment.
  4. Further, or in the alternative to Order 8, pursuant to the accrued jurisdiction of the Federal Court of Australia, and subject to revocation by the Court, orders pursuant to s17(2) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) that:
  5. Ms Zagari, until the determination of this this proceeding, refrain from making a decision to dismiss the Applicant from his employment with the First Respondent;
  6. the First Respondent be required to end Ms Zagari’s delegation as a sanctions delegate in respect of the final determination of the ACT Public Sector Standards Commissioner (the Third Respondent) regarding the Applicant dated 7 June 2023, and appoint an alternate sanctions delegate.

4    I do not propose today to consider what is sought by Dr Alasady in prayers 2 and 6 of this application. It is my view that they are not urgent, and they can be dealt with in the ordinary timetabling of the matter.

5    I state shortly certain background matters. Dr Alasady commenced the substantive proceeding by originating application filed on 26 July 2022. I set out the factual background to this matter in my judgment of 18 August 2022, in which I considered an interlocutory application filed on and dated 1 August 2022: see Alasady v Australian Capital Territory [2022] FCA 967 at [2]–[9].

6    In short, Dr Alasady was employed as a cardiologist on a part-time basis, of 0.4 FTE (being 16 hours per week), by the first respondent until he was suspended from his employment (with pay) on 28 March 2022 pending an investigation into allegations regarding his behaviour towards staff and colleagues at the Canberra Hospital, which forms part of the Canberra Health Services (CHS). The matter was referred to the third respondent (the Public Sector Standards Commissioner) who arranged for Ms Claire Carton from Griffin Legal to undertake an independent investigation on behalf of the Commissioner. After considering that report, on 16 March 2023 the Commissioner wrote to Dr Alasady outlining his proposed findings of misconduct. The final Misconduct Decision was provided to Dr Alasady on 7 June 2023, in which the Commissioner found that Dr Alasady’s conduct had amounted to misconduct within the meaning of the ACTPS Medical Practitioners Enterprise Agreement 2021–2022 (2021 Agreement).

7    In or around early June 2023, the second respondent advised Dr Alasady that Ms Janet Zagari (the Deputy CEO of CHS) would be the “head of service” for the purposes of cl 125 of the 2021 Agreement and would decide whether to impose a sanction on Dr Alasady following the Misconduct Decision, and what that sanction would be. Dr Alasady objected to Ms Zagari’s appointment. Ms Zagari declined to recuse herself on 6 July 2023.

8    Also on 6 July 2023, Ms Zagari informed Dr Alasady that she was proposing to terminate his employment with the first respondent. Dr Alasady alleged that Ms Zagari had not complied with the 2021 Agreement in purporting to advise Dr Alasady of the proposal to terminate his employment, which Ms Zagari denied. Dr Alasady’s solicitors responded to Ms Zagari’s letter on 28 July 2023 (28 July Letter), and informed her that he proposed to apply to the Court for an interim injunction preventing or stopping the effects of the purported breach of the 2021 Agreement if the first respondent terminated Dr Alasady’s employment before responding to the 28 July Letter.

9    The solicitors for the respondents provided a response to the 28 July Letter, however Dr Alasady felt that the response was ambiguous. This was the impetus for the present interlocutory application.

Relevant principles

10    The relevant principles are not in dispute.

11    In considering whether to grant an interlocutory injunction, it is worthy to set out what was said by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19]:

[I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of the injunction.

12    This formulation draws on the two inquiries described by the Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–3 per Kitto, Taylor, Menzies and Owen JJ:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief…

The second inquiry is directed to … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

13    By the first limb described in Beecham, it is necessary for the Court to reach a view about Dr Alasady’s prospects of establishing at trial that he would be entitled to the relief that he seeks: Avant Group Pty Ltd v Kiddle [2023] FCA 685 at [6] per Wheelahan J. He needs to “show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”: O’Neill at [65] per Gummow and Hayne JJ.

14    The second limb, concerning practical consequences, requires the Court to consider factors affecting the balance of convenience. This may be informed by the question of whether damages would be adequate as a final remedy: Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 at [283] per Beach J. Another set of factors that may form a part of the balance of convenience assessment are “the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application”: O’Neill at [72].

The parties’ submissions and consideration

Serious question to be tried

15    The respondents submit that Dr Alasady has failed to demonstrate a prima facie case.

16    Since my previous interlocutory decision the matter has not progressed beyond the pleading phase. As a consequence, and as is ordinary in interlocutory matters of this kind, an assessment of whether there is a serious question to be tried and where the balance lies, is being undertaken where the Court has not had the benefit of all the evidence and full argument.

17    Dr Alasady submits that there are five bases upon which there is a serious question to be tried.

18    First, Dr Alasady submitted that the 2021 Agreement required allegations of misconduct to be particularised in writing (cl 123.2.1) and if allegations have not been particularised in writing and disciplinary action was taken on the basis of that allegation, this would constitute a breach of the 2021 Agreement. In particular, he alleges that there has been a lack of specificity with respect to the allegations that involve his participation “in verbal attacks, arguments and heated debates with Dr Pathak within the workplace” between mid-2017 and 24 November 2020 (Pathak Allegations).

19    Secondly, Dr Alasady contends that the Commissioner was biased at the time he determined the Pathak Allegations against Dr Alasady for a number of reasons, including that: (a) on 16 March 2023, the Commissioner had notified Dr Alasady of his proposed findings with respect to the Pathak Allegations; (b) before 24 April 2023, the Commissioner had already made a misconduct decision concerning Dr Pathak’s interactions with Dr Alasady; and (c) on 7 June 2023, the Commissioner “effectively” declined to recuse himself, and made a determination concerning Dr Alasady’s conduct.

20    The third contention raised in favour of Dr Alasady’s argument that he has a serious question to be tried is that he submits that there is a dispute as to whether the principles outlined in Briginshaw v Briginshaw (1938) 60 CLR 336 applied to the Commissioner’s decision-making task and that, nonetheless, it is arguable (on Dr Alasady’s contention) that those principles did apply given the Commissioner was required to make findings of misconduct that could result in Dr Alasady’s dismissal.

21    Fourthly, Dr Alasady also submits that the proposed sanction decision is not proportional to the misconduct, which constitutes a breach of cl 125 of the 2021 Agreement, and is otherwise legally and factually unreasonable, including by reason of by reason of there being a reasonable apprehension of bias arising with respect to Ms Zagari.

22    The respondents have raised cogent arguments as to potential deficiencies with respect to Dr Alasady’s claims.

23    However, I am of the view that the fourth basis upon which Dr Alasady puts his claim is a matter about which there is a serious question. The question of proportionality of sanction is always a matter which will require a consideration of all the evidence after the cross-examination of all witnesses. I accept that this a matter for which it can be said that there is a serious question to be tried. All that is required is “a sufficient likelihood of success”, where the strength will depend on the nature of the rights Dr Alasady asserts. It is clear that the sanction imposed must be a proportionate one. As to whether this sanction is a proportionate one will ultimately need to be resolved on the basis of evidence.

24    Having said this and so finding, it is not appropriate or necessary at this stage to consider in any detail that claim, nor any of the other claims (including the fifth claim) as are articulated by Dr Alasady to form the basis for why there is a serious question to be tried. I am satisfied that there is at least one basis upon which there is a prima facie case in respect of which Dr Alasady’s claim requires further consideration.

Balance of convenience

25    Turning to the question of the balance of convenience, I accept that, as part of this process, the Court must consider the circumstances of the applicant and the respondents, as submitted by the respondents. As to the latter, I note that it is open for an employer to no longer require an employee’s services. I also note that the first respondent in this case has particular statutory obligations and processes it must complete and, further, that all employers are entitled to assert, to a degree, their managerial prerogative to staff their organisations in the manner that they consider appropriate, so long as it is lawful.

26    I also note that, whilst in the past the Court would not ordinarily require specific performance, where one party provides personal services, the authorities recognise specific performance may be appropriate when dealing with employment contracts, the Fair Work Act 2009 (Cth) scheme and modern workplace rights considerations: Rugg v Commonwealth [2023] FCA 179; 323 IR 276 at [45]. The circumstances of each case require consideration.

27    I am of the view that Dr Alasady’s circumstances do not tip the balance in favour of an injunction being granted, by reason of the following.

28    First, Dr Alasady has not established that damages would be inadequate. If successful in his claim, Dr Alasady will be entitled to reinstatement and back pay and, potentially, to general damages, if he pursues his claims associated with adverse action.

29    Secondly, Dr Alasady has been suspended on full pay during the entirety of the investigation process, for over a year, and paid approximately $150,000 over that time, not taking into account any continuing accrual of service-related entitlements. If the suspension continues, the significant monies that have already been expended to him (whilst he is not performing any duties) would continue to be paid for an indeterminate period, given that proceedings are at a preliminary stage. As noted by Mortimer J (as the Chief Justice then was) in Rugg at [47], “it is material for the Court to assess how long any interlocutory order might be in place”.

30    I note that both parties made submissions as to the likely length of any final hearing: Dr Alasady asserts it could be heard within in a short period, namely over three days. On the other hand, the respondents assert, taking into account the breadth of what is pleaded in the current version of the amended statement of claim, the hearing could be in the order of three to four weeks.

31    Whilst I accept that there was no evidence before me in this respect, the pleading as currently crafted indicates the hearing is likely to be much longer than Dr Alasady’s estimate. It note its length, the number of allegations made, the number of people identified, the extent of the relief sought, the fact that the relief also includes allegations of adverse action and, if it is taken to include further adverse action in the event of dismissal, the fact that there would have to be extensive evidence from multiple decision-makers or, at least, multiple parties with respect to it. And so, whilst I am not in a position to know exactly how long it will take, I have to apprehend that it will be at least a week or two. In that respect, I do note that, at the moment, taking into account the limited availability on the part of the Court, that this is a matter that could not, on any view, be listed in any short period. The most optimistic would be that it would be in the first half of next year. That is a consideration that is required to be taken into account.

32    Thirdly, to the extent that Dr Alasady asserts that his health has already been impacted by his suspension and the delay and, if dismissed, there is a “real risk his health will deteriorate”, he put on no medical evidence as to the health effects as to his past purported suffering or that he would suffer in the future. There was no evidence that he is in any different position to that which would be suffered by any other employee in the unfortunate circumstance that their employment is terminated. The provision of a medical certificate that he is unfit for work for reasons which are unknown goes no way to assisting his case in this regard.

33    Fourthly, unlike many employees in his position, Dr Alasady already has two alternate streams of work and remuneration. He is currently working at North Canberra Hospital, on a 0.3 FTE 12-hour load, and also continues in private practice. Dr Alasady has provided no evidence as to the extent of his private earnings, save for the fact that he baldly asserts a “downturn”. The mere assertion of a downturn without evidentiary foundation means that I have given very limited weight to his assertions of a drop-off in his private clients. Further, the so-called downturn goes nowhere in circumstances where there is no awareness of the ordinary number of private patients that he had, or the remuneration levels he received (and is receiving). Further, Dr Alasady has produced no bank statements or tax returns supportive of his claims of a changed financial position, nor is he asserting in this case that he will suffer financial hardship, save of course that he will lose the remuneration he has been earning while suspended.

34    Fifthly, to the extent that he asserts that he would suffer prejudice by reason of his speculation that the termination of his appointment by the first respondent will result in a termination of his employment at the North Canberra Hospital, he has provided no evidence to support this speculative claim. Given the fact that he was transferred and remains in employment by North Canberra Hospital, and where one assumes it was within the knowledge of the first respondent and North Canberra Hospital as to the fact of the suspension and the reasons for it, I can take that matter no further and say that it does not weigh the balance in his favour.

35    Sixthly, to the extent that he asserts that his academic position at the Australian National University is contingent on his employment with the first respondent, the evidence did not establish the same. He provided no evidence as to what, in fact, that academic role entails, nor what remuneration he receives with respect to it, or whether he is currently or in the near future would otherwise be performing work for the University and would be remunerated with respect to it.

36    Seventhly, to the extent that he claims a “complete destruction” of his reputation, whilst one can take judicial notice of the fact that being terminated or being the subject of media scrutiny when one is the subject of an investigation will of course have some effect on a person’s reputation, the difficulty is that it arises by virtue of an ordinary incident of those processes or the litigation. In that respect, then, I accept the submission of the respondents that it is in Dr Alasady’s interest for his case to be heard and determined as soon as possible and not stopping what I consider to be a matter that will likely require litigation at some point in the future, about which I will say something further below.

37    Eighthly, I do not accept that the balance of convenience favours Dr Alasady’s claim because he would like to continue on suspension and he believes “that [his] mental health will be improved, or at least not as badly impacted, if [he] could conduct the litigation knowing that [his] employment had not been terminated”. Whilst I accept that it is likely the wish of every employee in his predicament, it is ultimately something that does not weigh the balance in his favour.

38    Ninthly, to the extent that he refers to North Canberra Hospital and to allegations that are being made about his work there, there is nothing to indicate how that is linked back to his claim he is bringing against the first respondent in these proceedings.

39    Lastly, I accept that, if Dr Alasady’s employment is terminated and he wants to amend his claim to include a general protections claim which includes dismissal, he will need to take that claim first to the Fair Work Commission for a certificate to be issued. I accept that this may have some effect in delaying the matter. However, it is my view that, ultimately, if this claim were unsuccessful and an injunction had been granted, then an inevitable consequence may be the termination of his employment, for which further litigation would need to ensue. Further, to the extent that there is a delay as a consequence of the taking of the step, I note what I have said previously about the likely effect — given the fact that this matter cannot be dealt with in three days, and the fact that it is likely that it cannot be heard until next year — are factors which need to be taken into account in relation to this.

40    Whilst I accept that Dr Alasady has offered to give an undertaking as to damages with respect to this matter, I have taken that into account in the balance of the rest of the factors to be taken into account. But, ultimately, it, together with the other factors that I have referred to, does not weigh the balance in his favour, noting that it is my view that (a) damages would be an adequate remedy; (b) an employer is entitled to terminate an employee’s employment subject to the terms and conditions of employment and any other industrial instrument; (c) Dr Alasady is gainfully employed both in undertaking his own private practice and at North Canberra Hospital; and (d) Dr Alasady’s evidence has not demonstrated why the balance is tipped in his favour.

Conclusion

41    My conclusion is therefore that, whilst Dr Alasady has made out a prima facie case at least as to the proportionality of the sanction, the balance of convenience in granting the injunction does not weigh in his favour.

42    Accordingly, the application for interlocutory relief is dismissed.”

 

Alasady v Australian Capital Territory (No 2) [2023] FCA 966  per (Raper J delivered 15 August 2023