FEDERAL COURT OF AUSTRALIA

Fox v The Royal Women’s Hospital [2017] FCA 712

EX TEMPORE REASONS FOR JUDGMENT

1    The applicant applies in circumstances of urgency for an interlocutory injunction to restrain the respondent from, amongst other things, terminating her employment as a result of the respondent’s investigations in April 2016 into the applicant’s conduct. The application was filed late yesterday and served on the respondent at 5.29 pm yesterday evening. The circumstances of urgency arise out of the fact that the applicant has been informed that the respondent proposes to make a decision on the termination of her employment at 2 o’clock on 22 June 2017.

2    As indicated at the hearing this afternoon, in the circumstances disclosed to the Court in an affidavit affirmed by the applicant on 20 June 2017, I propose to grant an injunction on an interim basis to preserve the status quo until the respondent has had an adequate opportunity to consider its position. I shall have the application listed for an interlocutory hearing before the duty judge next week.

3    Briefly, the circumstances disclosed in the applicant’s affidavit appear to be as follows. Following two clinical incidents, the respondent arranged for a clinical review to be conducted. A clinical investigation was subsequently conducted. Around the same time as the clinical review and investigation there was a separate investigation into the applicant’s alleged workplace conduct. The applicant was subsequently advised that the CEO of the respondent had determined to recommend to the respondent’s Board that the applicant’s employment be terminated and that the Board would consider that recommendation at its meeting on 22 June 2017. The basis for the recommendation was set out in a letter dated 21 April 2017 from the respondent’s solicitors. Whilst the basis for the recommendation is relevant, it is clear from the terms of the letter and I shall not set it out here.

4    The applicant contends that the respondent has breached s 50 of the Fair Work Act 2009 (Cth) by its conduct in investigating the applicant in breach of clause 11 of the AMA Victoria – Victoria Public Health Sector Medical Specialists Enterprise Agreement 2013. It appears that this enterprise agreement covers the parties here. Clause 11 sets out the processes and procedures to be followed in a case like the present. In her affidavit, the applicant deposes that there are numerous breaches of clause 11. This is further set out in the written submissions that have been filed on her behalf.

5    Amongst other things, the applicant has deposed that she will suffer reputational damage on an irreparable basis should her employment be terminated and the termination of her employment will also significantly affect her ability to gain further employment in her chosen specialty. This damage is said to arise if it is known that a decision to terminate her employment has been made by the respondent.

6    In deciding to make the present orders on the short summary of facts that I have described, as referenced in the material to which I have referred and the submissions of counsel this afternoon, I have had regard to and applied the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]-[72] and the observations of the Full Court of this Court on the question of interlocutory injunctions and the balance of convenience in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238.

7    Upon the applicant, by her counsel, giving the usual undertaking as to damages, the orders of the Court will be:

1.    Up until 4 pm on 28 June 2017 the respondent is restrained from:

(a)    terminating the employment of the applicant; and

(b)    acting on the recommendation of the CEO of the respondent including by reaching a decision in principle that the applicant’s employment be terminated.

2.    By 12 pm on 26 June 2017 the respondent shall file and serve any material upon which it seeks to rely at the hearing on 28 June 2017 including an outline of submissions.

3.    By 4 pm on 27 June 2017 the applicant shall file and serve any material in reply; and

4.    There be no order as to costs.

As already indicated, the matter will be listed for an interlocutory hearing before the duty judge on 28 June 2017 to determine whether the restraint imposed by Order 1 should be extended for a further period. I note that the restraint imposed upon the respondent by Order 1 does not restrain the respondent from having its Board deliberate on the recommendation of the CEO or inviting the applicant to address the Board as part of those deliberations.

Associate:

Dated:    22 June 2017