FEDERAL COURT OF AUSTRALIA

Taylor v Commonwealth of Australia represented by the Department of Health [2019] FCA 1587

ORDERS

THE COURT NOTES THAT:

1.    The respondent makes the following undertaking:

Until the hearing and determination of proceedings ACD 56 of 2019, or further order, the Commonwealth of Australia (as represented by the Department of Health), undertakes:

1.    Not to make a formal determination that the Applicant has committed a breach of the Australian Public Service Code of Conduct in relation to the allegations set out in the following:

a.    notice of investigation into an alleged breach of the APS Code of Conduct dated 2 May 2019, as amended on 19 June 2019; and

b.    notice of investigation into alleged breaches of the APS Code of Conduct dated 9 August 2019.

2.    To suspend the directions issued to the applicant in the email from Macushla Cosgrave sent on 9 April 2019.

3.    To suspend the directions numbered 2, 3 and 4 issued to the applicant in a letter from Ms Rachel Balm an no dated 10 July 2019.

Date: 26 September 2019

IT IS NOTED THAT:

The terms of this undertaking have been brought to the attention of the following persons who each confirm they understand its terms.

a.    Glenys Beauchamp, Secretary, Department of Health

b.    Matthew Yannopoulos, Chief Operating Officer & Deputy Secretary, Corporate Operations, Department of Health

c.    Mark Roddam, First Assistant Secretary, Mental Health Division, Department of Health (the appointed decision maker in relation to the notices of investigation referred to in paragraphs 1 ( a) and (b) above),

d.    Rachel Balmanno, First Assistant Secretary, People, Communication and Parliamentary Division, Department of Health.

THE COURT ORDERS THAT:

1.    The interlocutory relief sought in the originating application filed on 13 August 2019 is refused.

2.    There be no order as to costs.

3.    Within 14 days hereof the respondent is to file and serve one or more affidavits by persons who are able to explain why documents which were produced on the morning of 27 September 2019 in response to one or other of two notices to produce issued by the applicant were not provided to the applicant prior to the hearing on 25 September 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks interlocutory relief in the context of a strained relationship between her and her present employer, the Department of Health for whom she continues to work. The applicant seeks relief for the stated purpose of restoring and preserving the status quo until the substantive hearing.

Summary of background facts

2    The substantive proceeding was commenced by way of an originating application filed on 13 August 2019. The applicant seeks various relief against her employer, including damages, exemplary damages, an apology and orders that disciplinary action be taken against certain officers of the respondent whom she alleges have acted unlawfully. Dr Taylor’s application for interlocutory relief is to prevent her employer from taking steps which would involve suspending her employment, terminating her employment, suspending her salary, taking action under the Australian Public Service Code of Conduct (APS Code of Conduct), issuing any formal directions or taking any other adverse action against her within the meaning of the Fair Work Act 2009 (Cth) (FW Act). She also seeks an order restraining the Department from monitoring her social media activity beyond a normal level of scrutiny, monitoring her personal life and engaging in conduct amounting to surveillance or stalking.

3    Dr Taylor relies upon two affidavits affirmed by her dated 12 August 2019 and 26 August 2019 respectively. The first affidavit totalled 1219 pages, including 96 annexures. The second affidavit totalled 47 pages, including annexures. Dr Taylor represented herself and, with the Court’s leave, she used assistive technology in presenting her case, including during her cross-examination of two Departmental witnesses. The assistive technology involved Dr Taylor putting questions to the witnesses and making submissions to the Court, orally, via her iPad. The iPad had either been preloaded with material Dr Taylor wished to raise or alternatively she typed matters into the iPad during the course of the hearing which was then converted into oral form. When Dr Taylor is under stress, she suffers from selective mutism.

4    The respondent relies upon three affidavits by Departmental officers, one affirmed on 13 September 2019 by Ms Catherine Milner, one sworn on 13 September 2019 by Ms Tracey Frey and an affidavit affirmed on 13 September 2019 by Ms Rachel Balmanno. Mss Frey and Balmanno were cross-examined, at some length, by Dr Taylor.

5    The following outline of Dr Taylor’s case draws primarily upon her first affidavit, her statement of claims and the Department’s points of defence. In her first affidavit, Dr Taylor said that she had commenced employment with the Department on 15 February 2016 and that, on the following day, she sought assistance in obtaining reasonable adjustments in the workplace due to her underlying disabilities. On 16 May 2018, she lodged a claim against the Department with Comcare for depression, anxiety and an eating disorder. On 29 May 2018, Mss Milner and White ordered her to leave work and not return without first providing a medical clearance. Dr Taylor then described a series of medical reports obtained by her but said that she was still not allowed to return to work. On 4 October 2018, Dr Taylor lodged an internal bullying complaint with the Department concerning her exclusion from the workplace. She said that when she sought to confirm with a Departmental officer that the Department had received Dr Taylor’s evidence in support of the bullying complaint, the officer falsely reported to other Departmental staff that Dr Taylor had threatened self-harm which led to police involvement and Dr Taylor having to undergo a mental health assessment. On 18 October 2018, the Department cancelled Dr Taylor’s IT access. On 31 October 2018, the Department required Dr Taylor to attend an assessment with a psychiatrist, scheduled for 15 November 2018, to assess her fitness. She said that she could not attend the appointment on that day because she was in hospital. Dr Taylor attended a subsequent assessment on 12 December 2018. On 3 January 2019, Dr Taylor lodged a bullying complaint with the Fair Work Commission. Dr Taylor complains that notwithstanding positive reports regarding her fitness to work by Professor Sahoo, she was still not permitted to return to work. Dr Taylor complained that the Department failed to act on other positive reports she obtained regarding her medical fitness. She also referred to a number of meetings in January through April 2019 with a return to work coordinator which did not result in her return to work.

6    Dr Taylor described various actions by the Department in respect of Dr Taylor’s use of her Twitter account culminating in a notice of investigation dated 2 May 2019 (as amended on 19 June 2019 to raise what Dr Taylor described as “new, different, allegations”), and a direction given to Dr Taylor on 28 June 2019 to leave the workplace. The Department subsequently issued a second notice of investigation dated 9 August 2019 which raised further allegations of breaches of the APS Code of Conduct.

7    Dr Taylor described how she lodged an internal complaint on 29 June 2019 alleging that Ms Balmanno had breached the APS Code of Conduct “when she mocked me for having a mental health history”. The alleged statement was made in the context of without prejudice discussions in the Fair Work Commission. The Department objected to this material on the basis of privilege. Dr Taylor did not press this part of her affidavit. I upheld the respondent’s objection to other paragraphs of Dr Taylor’s affidavit relating to this matter.

8    Dr Taylor described a meeting she had on 1 July 2019 with Mss Balmanno and White concerning her return to work. On 2 July 2019, the day after Ms Balmanno had issued a formal direction that Dr Taylor was not to attend work until a return to work plan was agreed, Dr Taylor made a Public Interest Disclosure regarding the conduct of Departmental staff. Dr Taylor subsequently complained to the Ombudsman concerning the conduct.

9    Dr Taylor described many other events which occurred throughout July 2019, including the Department’s response to Dr Taylor’s Public Interest Disclosures. Dr Taylor also described, at some length, the events leading up to and surrounding her return to work on 8 August 2019, including her contact on 8 August 2019 with several Departmental officers.

10    The statement of claims is lengthy, totalling 80 pages. Dr Taylor raises 21 separate claims which allege breaches of Pt 3-1 of the FW Act. Many of the claims identify adverse actions which Dr Taylor says the Department has taken against her. In brief, claims 1, 2, 12, 13, 14 and 15 relate to Dr Taylor’s exclusion from the workplace. Claims 3, 4, 5, and 7 involve complaints concerning the Department’s conduct when Dr Taylor returned to the workplace on 8 August 2019, which she says involves fewer adjustments for her than previously, and amounts to discrimination (including by requiring Dr Taylor to attend an independent medical assessment to assess fitness for continuing duty). Claim 6 relates to the Department’s cancellation of Dr Taylor’s IT access. Claim 8 challenges various directions issued to Dr Taylor concerning her use of her Twitter account. Claim 9 relates to events which occurred at a Fair Work Commission conference on 30 April 2019. Claims 10, 11 and 21 relate to APS Code of Conduct investigations. Claim 16 relates to various formal directions which were issued to Dr Taylor by Ms Balmanno. Claims 17, 18, 19 and 20 relate to various directions which the Department gave to Dr Taylor concerning her attendance at the workplace, including her return to work on 8 August 2019. Claim 21 concerns the second notice of investigation. Dr Taylor said she considered the allegations in that notice were vexatious.

11    Dr Taylor seeks the following interlocutory orders:

1.    Under rule 7.01(1) of the Federal Court Rules 2011, I apply for the Court to grant an injunction. Specifically, that the Department of Health (Dr Arlene Maree Taylor’s employer) not;

a.    Suspend, or seek to suspend, Dr Arlene Taylor from duties and/or the workplace; or

b.    Terminate, or seek to terminate, Dr Arlene Taylor’s access to her Department of Health IT account (and information available therein); or

c.    Cease, suspend, or seek to suspend, Dr Arlene Taylor’s salary (currently on the top salary tier for and APS6 at $94110pa.); or

d.    Commence, or seek to commence, or lay allegations of suspected breaches in the APS Code of Conduct, against Dr Arlene Taylor; or

e.    Issue any further ‘formal directions’ to Dr Arlene Taylor; or

f.    Take any other adverse action against Dr Arlene Taylor, as described in the general protections provisions of the Fair Work Act 2009.

2.    Under rule 7.01(1) of the Federal Court Rules 2011, I apply for the Court to grant an injunction. Specifically, that the Department of Health (Dr Arlene Maree Taylor’s employer):

a.    Withdraw allegations made on 12 August 2019 of suspected breaches in the APS Code of Conduct by Arlene Taylor; and

b.    Withdraw allegations made on 19 June 2019 of suspected breaches in the APS Code of Conduct by Arlene Taylor; and

c.    Withdraw allegations made on 2 May 2019 of suspected breaches in the APS Code of Conduct by Arlene Taylor; and

d.    Cease investigation(s) and action relating to any existing allegations of breaches in the APS Code of Conduct by Arlene Taylor; and

e.    Withdraw all formal directions issued to Arlene Taylor from 8 April 2019 to present.

3.    Under rule 7.01(1) of the Federal Court Rules 2011, I apply for the Court to grant an injunction. Specifically, that the Department of Health (Dr Arlene Maree Taylor’s employer):

a.    Desist in monitoring Arlene Taylor’s social media activity above and beyond what is considered a normal level of scrutiny applied to Departmental employees; and

b.    Desist in attempting to monitor the activities of Arlene Taylor’s personal life; and

c.    Desist in any other behaviours that may be considered engagement in surveillance or stalking activities, directed towards Arlene Taylor.

12    The Department contends that none of the claimed adverse actions raised by Dr Taylor was taken for a prohibited reason as required under s 340(1) of the FW Act and also that the actions were lawful and authorised by Commonwealth laws and, therefore, cannot constitute “adverse action” for the purpose of s 342(3) of the FW Act. The Department also defends each of these claims for other specific reasons.

13    As to Dr Taylor’s application for interlocutory relief, the Department responds as follows in its points of defence:

(a)    Proposed interlocutory orders 1(a), (b) and (e) do not allege any specific proposal by the Department to take any of the actions referred to therein.

(b)    As to proposed interlocutory order 1(c), there is no allegation of any specific proposal by the Department to suspend Dr Taylor’s salary (save in relation to a few days’ leave), damages would in any event be an adequate remedy and the Department denies that Dr Taylor has not been paid in full after 9 August 2019.

(c)    As to proposed interlocutory orders 1(a) and (d), the Department initially said that it was willing to give an undertaking to give reasonable notice to Dr Taylor of any proposal to suspend her or impose a sanction for breach of the Code of Conduct. At the commencement of the hearing on 25 September, Mr Berger (who appeared for the Department), said that the respondent was willing to offer more extensive undertakings, in the following terms:

Until the hearing and determination of proceedings ACD 56 of 2019, or further order, the Commonwealth of Australia (as represented by the Department of Health), undertakes:

1.    Not to make a formal determination that the Applicant has committed a breach of the Australian Public Service Code of Conduct in relation to the allegations set out in the following:

a.    notice of investigation into an alleged breach of the APS Code of Conduct dated 2 May 2019, as amended on 19 June 2019; and

b.    notice of investigation into alleged breaches of the APS Code of Conduct dated 9 August 2019.

2.    To suspend the directions issued to the applicant in the email from Macushla Cosgrave sent on 9 April 2019.

3.    To suspend the directions numbered 2, 3 and 4 issued to the applicant in a letter from Ms Rachel Balmanno dated 10 July 2019.

Date: 26 September 2019

IT IS NOTED THAT:

The terms of this undertaking have been brought to the attention of the following persons who each confirm they understand its terms.

a.    Glenys Beauchamp, Secretary, Department of Health

b.    Matthew Yannopoulos, Chief Operating Officer & Deputy Secretary, Corporate Operations, Department of Health

c.    Mark Roddam, First Assistant Secretary, Mental Health Division, Department of Health (the appointed decision maker in relation to the notices of investigation referred to in paragraphs 1 ( a) and (b) above),

d.    Rachel Balmanno, First Assistant Secretary, People, Communication and Parliamentary Division, Department of Health.

Notwithstanding these proffered undertakings, Dr Taylor said at the hearing that she wished to press her interlocutory application. The Court stated that the undertakings could be relevant to the issue of balance of convenience.

(d)    As to proposed interlocutory orders 2(a)-(e), the Department says that they go beyond preserving the status quo.

(e)    As to proposed interlocutory orders 1(f) and 3(a)-(c), the Department says that they are unclear and lack specificity concerning the actions sought to be prevented.

Consideration and determination

14    The general principles which guide the Court’s power to grant interlocutory injunctive relief are uncontroversial and may be stated briefly as follows:

(a)    Is there a serious question to be tried?

(b)    Where does the balance of convenience lie?

(c)    Are damages available as an adequate remedy and are there any discretionary reasons for withholding relief?

15    As to the first of those matters, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial (see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] per Gummow and Hayne JJ). The test is whether a prima facie case has been made out by the applicant in the sense that, if the evidence remains the same, there is a probability at the final hearing that the applicant will obtain relief (see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 to 623).

16    Further, in the case of interlocutory injunctive relief aimed at future conduct, regard is also had to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties (see Hurst v State of Queensland (No 2) [2006] FCAFC 151 at [21] per Ryan, Finn and Weinberg JJ).

17    It is desirable to say something now by way of introduction regarding the relevant legislative regime under the FW Act. An employer is prohibited from taking “adverse action”, as defined in s 342, against an employee because they have or exercised a “workplace right”, as defined in s 341. Section 340(1) of the FW Act provides for this “general protection”.

18    The Department accepts that at least some of the matters about which Dr Taylor complains involve workplace rights held or exercised by her. It also accepts that, in principle, “adverse action” is taken by an employer against an employee if it injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees, as provided for in the Items of the table in s 342(1).

19    The Department places emphasis, however, on s 342(3), which provides that adverse action “does not include action that is authorised by or under” a Commonwealth law. Moreover, it emphasises the requirement in s 340(1) that, for there to be a breach of the FW Act, the Department must have taken adverse action against Dr Taylor because of her having, or exercising, a workplace right. Having regard to decisions such as Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [7] (CFMEU v BHP) and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32; 248 CLR 500, while accepting that the employer bears the onus of proving that it did not act because of the applicant having or exercising a workplace right (see s 361) and that the workplace right was not a reason for the action (s 360), the Department submitted that it is necessary to identify the actual reasons for the employer’s conduct and a contravention exists only if a prohibited reason was the operative and immediate reason for taking the action. Merely because underlying facts involving a workplace right may have entered into part of the reasoning process does not mean that the employee’s exercise of their workplace right necessarily constitutes a substantial and operative reason for the action (CFMEU v BHP at [21]-[22] per French CJ and Kiefel J, and [90]-[92] per Gageler J; Barclay at [65] per French CJ and Crennan J, [103]-[104] per Gummow and Hayne JJ, and [140] per Heydon J). For there to be “adverse action”, the actual reason of the employer for taking the action must, in the employer’s own mind, be the employee having or exercising a workplace right (see Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [32]-[34] per Jessup J and at [77] per Perram J), so the Department submitted.

(b) Serious question and/or prima facie case?

20    Dr Taylor acknowledged that it was impractical at this interlocutory stage of the proceeding to address whether each and every one of her 21 claims raises a serious question to be tried. Instead, and sensibly, she focussed her claim for interlocutory injunctive relief on the following primary matters concerning her adverse action claims under the FW Act:

(a)    the substantial number of formal directions issued to her by the Department;

(b)    the allegations that she breached the APS Code of Conduct as raised in the notices of investigation dated 2 May 2019 (as amended on 19 June 2019) and 9 August 2019; and

(c)    her exclusion from the workplace between 29 May 2018 and 8 August 2019 despite Dr Taylor having provided multiple medical clearances concerning her fitness to return to work.

(i) Formal directions

21    Although Dr Taylor complains about numerous directions she has received from the Department since 9 April 2019, she focussed particularly on the directions dated 10 July 2019 given to her by Ms Balmanno. Those directions are set out in a letter of that date headed “Rights and responsibilities regarding your communications with the Department”. It is well to set out that letter in full (minus formal parts):

Dear Dr Taylor

Rights and responsibilities regarding your communications with the Department

The Department acknowledges you currently have a range of legal and complaints processes in train in relation to your employment with the Department. The Department is separately responding to you as appropriate on those various matters. In the interim, given the volume and content of your correspondence since 28 June 2019 in particular, I wanted to ensure there were shared expectations between you and the Department about how your complaints will be handled. Accordingly, this letter sets out how the Department commits to respond to the issues and concerns you have raised, along with the Department's expectations of you in raising issues or concerns. This letter also contains formal directions about your communications with the Department.

I urge you to read this letter carefully and seek clarification if you do not understand any aspect of it.

Rights

The Department acknowledges you are entitled to make complaints and exercise other legal rights about matters related to your employment.

When you raise a concern with the Department relating to your employment, the Department commits it will:

•    refer your correspondence to the most appropriate person - this may not be the person you addressed your correspondence to

•    take steps the Department deems appropriate in relation to your concerns, including taking no action where your correspondence does not raise new issues or provide new information about existing complaints

•    within a reasonable timeframe, provide you with an appropriate response from the most appropriate person with reference to the content of your correspondence. This may mean your correspondence in relation to the same or similar issues are grouped and responded to collectively

•    handle your communications professionally, efficiently, fairly and respectfully

•    comply with applicable legislation obligations such as under the Public Interest Disclosure Act 2013 (PID Act).

Responsibilities

While you have the right to make complaints and exercise other legal rights about matters related to your employment, you also have responsibilities in relation to how you do so.

In recent times, the way you have been raising concerns with the Department has been inhibiting the Department's ability to adequately and efficiently consider and respond to your concerns. Examples include sending multiple emails within a short timeframe requesting a response to an earlier email, sending emails to the Secretary about an issue after she has advised you to contact HR, or copying in multiple people to your correspondence when it is not clear why they have been copied in. As well as inhibiting the Department's ability to efficiently respond, communicating in this way may be capable of being perceived by recipients as harassing.

Further, I am concerned the way you are expressing some of your correspondence may not be respectful and courteous to those against whom you are making allegations including by disseminating serious allegations to persons that may not have a reason to receive them. It also may not be respectful or courteous to demand a response be given within a short timeframe and threaten further action if that timeframe is not met. The Department will advise you separately if it considers any specific communications may have breached the APS Code of Conduct.

Accordingly, I wish to set out the Department's expectations of you.

The Department's expectation is that you will comply with the following responsibilities when raising issues, concerns or complaints related to your employment, whether in advance of or on your return to work:

•    communicate in a way that is respectful and courteous, and not harassing. This includes when communicating with officers of the Department performing their duties in relation to the matters you have raised

•    refrain from sending an excessive number of communications

•    refrain from making demands for a response in an unreasonably short timeframe

•    make sure of facts prior to making serious allegations, and take care that such allegations are communicated to only those who have a legitimate need to receive them

•    act in a way that will not adversely impact on the health and safety of other employees of the Department

•    respect the rights of other complainants to an equitable share of the Department’s resources for handling complaints.

Directions

To give effect to the Department's expectations, I am giving you the following formal directions, which apply from today and continue in force on your return to work:

1.    For any correspondence that raises internally with the Department any complaints, issues or grievances related to your employment, I direct you to send the correspondence only to the following authorised recipients:

If you wish the authorised recipient to escalate the issue within the Department, you may request this in your correspondence.

2.    I direct you to only send the Department correspondence relating to complaints you are raising with external complaints bodies, such as the Merit Protection Commissioner, where required to do so by that external body or by legislation (eg court rules requiring service of documents).

3.    I direct you to act in a way that is consistent with your obligations under the APS Code of Conduct, the APS Values and the APS Employment Principles when corresponding with the Department and in your interactions with the Department and its agents. In particular, I remind you of the requirement to treat everyone with respect and courtesy, and without harassment.

4.    Upon your return to work, I direct you to spend the time you are paid for whilst at work on the tasks which have been assigned to you by your line management. However, if you need to raise any issues with the operation of the Return to Work Plan, you may spend paid work time on this provided the amount of time is reasonable and not excessive. Similarly, you may also spend paid work time in order. to respond to and participate in processes undertaken for the purposes of the Public Interest Disclosure Act 2013. Variation to this direction may be considered on a case-by-case basis, by seeking prior approval from me or your supervisor.

Further information about the directions

The above directions take effect on the date of this letter and will be reviewed in 3 months' time.

You are also entitled to request, in writing, a review of my directions in accordance with section 33 of the Public Service Act 1999. Time limits apply as set out in the Public Service Regulations 1999.

Failure to comply with the directions

Failure to comply with any of the above directions may be a breach of the Code of Conduct, found in section 13 of the Public Service Act 1999 (PS Act), in particular the requirement in section 13(5) to comply with a lawful and reasonable direction given by a person who has the authority to give that direction. If an employee is found to have breached the Code of Conduct a sanction may be imposed, ranging in severity from a reprimand to termination of employment.

Finally; I remind you the Employee Assistance Program is available through Converge International (telephone 1300 687 327) to provide free and confidential support to you.

22    Dr Taylor claims that, on its face, the letter states that the directions were given as a result of complaints made by Dr Taylor both within and outside the Department. Dr Taylor says that this demonstrates that the directions were given because she had exercised a workplace right and that a similar inference should be drawn in respect of all the formal directions she was given. Dr Taylor contends that the directions stipulate how she is to conduct herself after her return to work notwithstanding that no concerns had been identified by the Department as to how she used her time at work and applied herself. Accordingly, she said that the Court should view the directions as having been given without justification.

23    In short, Dr Taylor contends that the issuance of so many formal directions in the absence of any adverse finding against her concerning her conduct, performance or health demonstrates that there is a serious question to be tried and that the directions were probably issued because she had exercised workplace rights.

24    Having regard to s 342(3) of the FW Act (which has the effect of excluding from the concept of “adverse action” action that is authorised by or under the FW Act or any other law of the Commonwealth), the strength of Dr Taylor’s claims concerning the formal directions needs to be assessed not only in the context of relevant provisions of the FW Act, but also by reference to some provisions in both the Work Health and Safety Act 2011 (Cth) (WHS Act) and the Public Service Act 1999 (Cth) (PS Act). Under s 19(1) of the former Act, a person who conducts a business or undertaking (PCBU) must ensure the health and safety of all workers so far as is “reasonably practicable” while the workers are at work. Additional duties are imposed under s 19(3)(a), including that a person who conducts a PCBU ensure, so far as is reasonably practicable, the provision and maintenance of a work environment without risks to health and safety. What is “reasonably practicable” for the purpose of s 19 involves that which is, or was at particular time, reasonably able to be done in relation to ensuring health and safety, taking into account all relevant matters, including those set out in s 18 of the WHS Act.

25    It is also relevant to note the effect of s 20 of the PS Act, which operates such that the Secretary of the Department has all the rights, duties and powers of an employer in respect of all APS employees in the Department. Under reg 3.2 of the Public Service Regulations 1999 (Cth), the Secretary is empowered to direct an employee to attend a medical examination where the Secretary believes that the state of health of an APS employee warrants review in certain circumstances.

26    I accept the Department’s submission that the formal directions about which Dr Taylor complains, including the several directions to her not to attend work, were given because of the Department’s concern to comply with s 19 of the WHS Act, its duties as an employer and that those directions were not for an improper or proscribed reason. It is significant that, once the Department was satisfied based on medical advice that it was safe for Dr Taylor to return to work, she was promptly permitted to do so.

27    In the 10 July 2019 letter itself, Ms Balmanno explains the reasons for the formal directions made in that letter. Further, Ms Balmanno expressly acknowledged Dr Taylor’s right to make complaints and exercise her workplace rights, but stated her concerns arose from the manner in which this was being done, resulting in an inhibition of the Department’s ability to effectively respond to Dr Taylor’s complaints. Those purposes, although arising from a factual substratum that may involve exercise of workplace rights, are not arguably improper for the reasons explained by the High Court in CFMEU v BHP at [21]-[22] per French CJ and Kiefel J, and at [86]-[90] per Gageler J . Ms Balmanno gave evidence under affirmation that the reasons given in her letter were the true reasons for the directions she issued and this evidence was not shaken in cross-examination.

28    As to Dr Taylor’s submission that the letter did not explain why a direction was given concerning how she spent her time at work, that absence of explanation is not sufficient to support the inference of improper motive that Dr Taylor suggests. There may be a number of explanations for that direction, most of which would not involve any ill intent or prohibited reason. Dr Taylor relied on no positive evidence to support such a serious inference of impropriety and her case is one of pure conjecture (Tisdall v Webber [2011] FCAFC 76; 193 FCR 260 at [128]-[129] per Buchanan J).

29    I am not satisfied that Dr Taylor has established a prima facie case with this aspect of her complaint.

(ii) Code of Conduct contraventions

30    In support of this aspect of her case, Dr Taylor emphasised that the allegations against her that she had breached the APS Code of Conduct were all raised after she had complained about the Department’s handling of her disabilities and her exclusion from the workplace. There are two investigations being carried out by the Department into alleged breaches by Dr Taylor of the Code of Conduct. The first arises from a notice of investigation dated 2 May 2019 and signed by Ms Frey (as amended on 19 June 2019) and alleges that, on or around 15 April 2019, Dr Taylor retweeted a post criticising the work of the Department, specifically the Department’s My Health Record program and that, as at 2 May 2019, she had not removed several posts which criticised the Department or the Minister.

31    The second investigation arises from a notice of investigation dated 9 August 2019, which was also signed by Ms Frey. It sets out eight allegations against Dr Taylor, which may be summarised as follows:

(a)    failure to comply with a lawful and reasonable direction on 28 June 2019 and 1 July 2019 when Dr Taylor attempted to return to work without there being a finalised or agreed return to work plan;

(b)    on both those occasions Dr Taylor failed to behave in a way which upheld the integrity and good reputation of the Department by making a number of posts to her Twitter account, criticising the Department;

(c)    on 12 June 2019, Dr Taylor sent an email and dishonestly represented that she had filed an application for judicial review in the Court against the Department concerning her application for the 2020 Australian General Practice Training program intake (see Taylor v Commonwealth as represented by the Department of Health [2019] FCA 1588);

(d)    on 1 and 7 June 2019, Dr Taylor failed to behave in a way which upheld the APS Values and APS Employment Principles and the integrity and good reputation of the Department by criticising the conduct of an employee of the Department;

(e)    on 27 June 2019, Dr Taylor provided a false response in her application to the Department for a job position in that she failed to disclose the ongoing earlier investigation arising from the notice of investigation dated 2 May 2019 (as amended on 19 June 2019);

(f)    on 30 July 2019, Dr Taylor failed to follow a lawful and reasonable direction by sending an email to Ms Balmanno which was copied to Mr Yannopoulos, in breach of a direction given to Dr Taylor by Ms Balmanno on 10 July 2019 (set out above at [21]) and a direction given on 26 July 2019 that any correspondence should be sent to Ms James while Ms Balmanno was on leave;

(g)    on 5 August 2019, Dr Taylor sent an email to Gungahlin Family Healthcare Administration (which was also sent to Ms James and copied to Ms Balmanno) in which Dr Taylor alleged that the Department was in breach of general protections and engaged in victimisation, bullying and other serious behaviour; and

(h)    on 6 August 2019, Dr Taylor failed to follow a lawful and reasonable direction by attending the workplace for the purpose of hand delivering an envelope to Ms James, in breach of a direction dated 1 July 2019 that she not attend work until certain steps had been taken and there was an agreed return to work date.

32    Dr Taylor emphasised the significant involvement in these matters of Ms Balmanno personally and that Dr Taylor had made several serious complaints against her. Dr Taylor drew attention to the temporal juxtaposition between her complaints against Ms Balmanno and the allegations of Code of Conduct breaches by Dr Taylor. She claimed that the Department was motivated by “ill intent”.

33    In accordance with the Secretary’s obligation under s 15(3) of the PS Act to establish written procedures for determining whether an APS employee has breached the Code of Conduct and any related sanction to apply, a document entitled “Secretary’s Procedures for Determining Breaches of the APS Code of Conduct and sanction for the Department of Health” (2 May 2019 and amended on 19 June 2019 and 12 August 2019) was brought into existence. It was used by Departmental officers as a guide in the claims that Dr Taylor had breached the APS Code of Conduct. The Department described the alleged contraventions by Dr Taylor as follows:

(a)    Dr Taylor had used her Twitter account to criticise the Department and to encourage people to act inconsistently with a major government policy (My Health Record), as well as to criticise the Australian Health Practitioner Regulation Agency as being as being an ineffective regulator;

(b)    Dr Taylor’s publicly available LinkedIn profile stated that she was currently employed by the Department;

(c)    Dr Taylor had been warned on 9 April 2019 regarding her social media comments and her obligation to comply with the Department’s Social Media Guidelines and the APS Commissioner’s guide;

(d)    these materials put Dr Taylor on clear notice of the need for her to use social media responsibly yet she did not take timely steps to remove all her social media posts;

(e)    contrary to the direction given to her on 9 April 2019, approximately one week later Dr Taylor retweeted a post by a third party which linked to an article on the topic of whether medical records were being exposed without consent; and

(f)    the second Code of Conduct notice issued to Dr Taylor included an allegation that she had made further tweets critical to the Department on 28 June 2019 and 1 July 2019, as well as other alleged misconduct by her which was being investigated,

34    In oral submissions, the Department emphasised the importance of the APS Code of Conduct in ensuring the integrity of the Australian Public Service and the confidence of the public that public servants can fulfil independently and objectively the policies of the government of the day (referring to the High Court’s recent decision in Comcare v Banerji [2019] HCA 23; 93 ALJR 900 at [30], [31], [40]-[42], [44] per Kiefel CJ, Bell, Keane and Nettle JJ; at [54], [59], [70], [73]-[95], [100]-[101], [105]-[106] per Gageler J; at [118]-[125], [133], [142], [150]-[156] per Gordon J; and at [179]-[183] per Edelman J).

35    I do not accept Dr Taylor’s submission that the existing evidence is such as to give rise to a triable issue that the relevant Departmental officers, including Ms Frey, were motivated by ill intent towards her or that a substantial and operative reason for the APS Code of Conduct investigations was Dr Taylor’s exercise of her workplace rights. As the respondent submitted, Dr Taylor’s allegations are very serious and are based on conjecture, rather than any positive evidence of ill intent or action for a proscribed purpose.

36    Dr Taylor put various matters to Ms Frey in cross-examination with the evident object of establishing a prima facie case of ill intent, including the delay in issuing the first notice of investigation for so many months after Dr Taylor sent the tweets, the reason for amending the first notice of investigation, the coincidence of the fact that the second notice of investigation was issued the day after Dr Taylor returned to work, and the fact that Dr Taylor had lodged formal complaints about three members of Ms Frey’s team (but not Ms Frey herself). In my view, Ms Frey provided adequate and acceptable responses to Dr Taylor’s questions in cross-examination and I find that the evidence, at this stage of the proceeding, falls far short of demonstrating a triable issue that the Code of Conduct investigations are motivated by malevolence, ill intent or a proscribed purpose.

(iii) Exclusion from the workplace

37    It is common ground that Dr Taylor was excluded from the workplace by the Department between 29 May 2018 and 8 August 2019 and that, during this period, she provided at least ten written medical clearances and considerable information concerning her disabilities and the need for reasonable adjustments. Dr Taylor urged the Court to reject the Department’s claim that the period of exclusion was to ensure that the Department met its obligations under s 19 of the WHS Act to provide her with a safe workplace. She emphasised that, upon returning to work on 8 August 2019, she had fewer reasonable adjustments in place than when she was excluded on 29 May 2018. Dr Taylor contended that the 14 months’ exclusion was not because of the Department’s concern to provide a safe workplace. Dr Taylor contended that it was “overt discrimination and/or an adverse action after [she] raised complaints about the [Department’s] handling of [her] disabilities in the workplace”.

38    Ms Balmanno explained in her affidavit the reasons why directions were given to Dr Taylor to leave the workplace on 29 May 2018 and for her not to attend work on 28 June 2019, 1 July 2019 and 5 July 2019. They included the fact that an ambulance had been called for Dr Taylor on 17 occasions in the period February to May 2018, as well as her extreme concerns about Dr Taylor’s psychological health when she returned to work on 29 May 2018. She explained that Ms Milner directed Dr Taylor not to attend work on 29 May 2018 and that subsequent directions not to attend work were given by Ms Balmanno. I accept Ms Balmanno’s evidence that the Department sought and obtained medical advice to inform a return to work plan and to identify what reasonable adjustments were required to support Dr Taylor’s safety in the workplace. I also accept Ms Balmanno’s evidence that her directions to Dr Taylor not to attend the workplace were all given because, without an agreed return to work plan that set out the adjustments required to support Dr Taylor, Ms Balmanno was not satisfied that the Department could meet its obligation to Dr Taylor and other Departmental staff to maintain a safe working environment. I also accept Ms Balmanno’s evidence that the direction given to Dr Taylor to attend a fitness for duty assessment was because it was considered that the Department needed additional medical evidence to identify what could be done to address the risk of psychological harm to Dr Taylor upon her return to work. None of Ms Balmanno’s evidence was shaken in cross-examination. Moreover, as noted above, Ms Milner was not required for cross-examination and I accept the explanations set out in her affidavit for her conduct in respect of Dr Taylor.

39    I accept the Department’s contention that the formal directions which were issued to Dr Taylor requiring her not to attend work from 29 May 2018 to 8 August 2019 (although she remained on full pay) were not issued for improper or proscribed reasons, in circumstances where:

(a)    between February and May 2018 ambulance services were required for Dr Taylor at work on 17 occasions;

(b)    Dr Taylor informed Departmental officers of certain serious matters relating to her mental health (the details of which are described in the affidavits of Mss Balmanno and Milner and need not be detailed here), but that she felt that she also had no choice but to return to work because she had exhausted her paid sick leave;

(c)    it was necessary for the Department to obtain appropriate medical advice and put in place an agreed return to work plan identifying the adjustments which were required so that it could support Dr Taylor in the workplace and discharge its obligations not only to her, but also to her work colleagues;

(d)    until such steps were taken, the Department had strong and legitimate concerns that Dr Taylor’s attendance at work could place her, and her work colleagues, at risk; and

(e)    because no return to work plan had been finalised, the Department had to weigh up Dr Taylor’s stated willingness to return to work against her claims that it was not psychologically safe for her to do so.

40    In sum, there are fundamental difficulties with this aspect of Dr Taylor’s case (together with her other claims by her that actions were taken because of her having or exercising a workplace right). The first is that I do not accept that the documents relied upon by Dr Taylor support the inference for which she contends, namely that the Department’s actions were taken for a prohibited reason. Two primary matters were relied upon by Dr Taylor as grounding the inference that the Department’s conduct towards her was motivated by ill intent. The first matter relied upon as grounding an inference was a suggestion that the first notice of investigation was retaliatory on the part of Ms Frey. No such inference is available in circumstances where it is evident that the concerns relating to Dr Taylor’s use of social media did not emanate from Ms Frey but were rather raised by another member of the Department’s staff who otherwise does not figure in the case. The second relevant matter to note, which is inconsistent with an inference of ill-intent, is that Ms Frey did not initiate an investigation immediately on learning about the issue. Rather, on 8 November 2018 another Departmental Officer drew Dr Taylor’s attention to the issue and gave her a formal warning, as well as counselling, regarding the obligations of Departmental officers in the use of social media. Dr Taylor has not established a sufficient basis for the Court not to accept the unshaken evidence of these witnesses that their individual actions were unrelated to any prohibited reason. Although Dr Taylor has urged the Court to infer that the actions were taken for a prohibited reason, I see no basis for doing so. A further difficulty lies in the fact that two Departmental witnesses have given evidence, which has not been shaken in cross-examination, as to why they took the actions about which Dr Taylor complains. In particular:

(a)    Ms Milner has given unchallenged evidence on affirmation that the direction she gave to Dr Taylor on 29 May 2018 was solely because:

(i)    she considered that the Department had a duty to ensure a safe workplace for all of its employees;

(ii)    she thought Dr Taylor was not well enough to be at work and was only attending because she had run out of leave;

(iii)    she was very concerned that if Dr Taylor came to work at this time it might exacerbate her mental health issues or cause her to take other action which was damaging to her or Departmental staff; and

(iv)    she therefore believed that the Department required evidence from a medical practitioner that it was safe for Dr Taylor to be at work and that she should be given leave with pay until such medical advice was received.

(b)    Ms Frey has sworn that the notices of investigation dated 2 May 2019 (as amended on 19 June 2019) and 9 August 2019 to Dr Taylor were in no way motivated by the matters set out in claims 10, 11 and 21 of Dr Taylor’s statement of claims and that the directions contained in those notices regarding Dr Taylor not contacting people in the Department about the investigation was standard and intended to ensure that employees who were involved in making or investigating allegations of misconduct against other employees are not consequently harassed or intimidated and that this was the sole purpose why she included those standard directions in the notices.

(c)    Ms Balmanno has affirmed that the directions she gave to Dr Taylor on 28 June 2019, 1 July 2019 and 5 July 2019 that Dr Taylor not attend the workplace were all given because, without an agreed return to work plan that set out the adjustments required to suit Dr Taylor in the workplace, she was not satisfied that the Department could meet its obligation to Dr Taylor and other staff to maintain a safe working environment. Moreover, Ms Balmanno has deposed that the directions were in no way motivated by the matters set out in claims 12 to 15 of Dr Taylor’s statement of claims. Furthermore, Ms Balmanno has deposed that her decisions to deny Dr Taylor access to the Department’s IT was from a concern she had regarding Dr Taylor’s behaviour and mental state. In particular, Ms Balmanno deposed that she was concerned that Dr Taylor was “experiencing a mental health crisis and therefore may not exercise good judgement in relation to information held by the Department or in communicating using her work email account”.

41    As noted above, both Ms Frey and Ms Balmanno were cross-examined by Dr Taylor. I accept the truthfulness of their evidence. They both answered the questions put to them by both Dr Taylor and the Court frankly and responsively. I have no reason to doubt the veracity of any part of their evidence.

42    I recognise that in a case such as this, in determining whether there is a serious question to be tried, and the applicant’s case relies solely on inference and the respondent adduces affidavit evidence which, if true and accepted, destroys that inference, the Court should not necessarily conclude that a triable issue has not been established. That is because, in an application for interlocutory injunctive relief, it is not necessary for the parties firmly to establish the outcome of the case. The mere fact that the respondent’s case is set out in affidavit evidence does not make it incontrovertible (see Cayne v Global Resources PLC [1984] 1 All ER 225 at 230 per Eveleigh LJ and Independent Corporate Services Ltd v Stevens [2002] WASC 280 at [67] ff per Roberts-Smith J). The difficulty for Dr Taylor, however, is that I am not satisfied that her evidence and the documents on which she relies ground the inferences for which she contends.

(c) Balance of convenience

43    The Court notes that Dr Taylor has now provided an undertaking as to damages.

44    There are, however, several matters which indicate that the balance of convenience favours the Department and not Dr Taylor in terms of the claimed interlocutory relief. In particular:

(a)    the terms of some of the proposed relief (see 1(f), 3(a)-(c)) are expressed in unduly broad terms and would create considerable uncertainty in the Department knowing what was required of it and its staff to ensure compliance and to avoid being in contempt of the Court’s orders;

(b)    other parts of the proposed interlocutory orders (1(b), (c) and (d) and 3(c)) relate to threats perceived by Dr Taylor which, on the evidence, are not imminent;

(c)    other parts (1(e) and (f)) seek to restrain future conduct which is not directly related to the case as pleaded and in any event are too broad; and

(d)    other parts (1(c)) seek to protect Dr Taylor’s interests which are adequately protected by damages.

45    Finally, having regard to the undertakings now proffered by the Department, I accept its submission that the balance of convenience strongly favours it in terms of preserving the status quo pending the substantive hearing.

Conclusion

46    For these reasons, and after noting the respondent’s proffered undertakings, the Court will order that the application for interlocutory injunctive relief be dismissed. Having regard to the Court’s jurisdiction under the FW Act, there will be no order as to costs.

47    There is one further matter which should be mentioned. On the morning of 27 September 2019, Dr Taylor contacted the Registry and said that the Department had just provided her with additional documents in response to the two notices to produce issued by her and that she was prejudiced by not having seen the documents prior to the hearing on 25 September 2019. I arranged for the matter to be urgently relisted to hear the position of both parties. Although Dr Taylor was concerned that the Department had not acted as a model litigant and that she may have been disadvantaged by the late production of the material, she did not apply to have the proceeding reopened. She said that she was content to rely upon the material at the final hearing. Dr Taylor said that she was content for the Court to determine her interlocutory application on the basis of the material which was before the Court, and not the additional material which had just come to her attention.

48    In the circumstances, however, I think it appropriate that the Department be directed to file and serve within 14 days hereof one or more affidavits by persons who are able to explain why documents which were produced on the morning of 27 September 2019 in response to one or other of two notices to produce issued by the applicant were not provided to the applicant prior to the hearing on 25 September 2019.

Associate:

Dated:    27 September 2019