Federal Court of Australia

Avard v Australian Capital Territory [2024] FCA 690

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    If any party wishes to seek an order as to costs:

(a)    that party is to file written submissions of no more than five pages in support of the order that is seeks, together with any evidence on which it wishes to rely, by 12 July 2024;

(b)    the other parties are to file written submissions in response of no more than five pages, together with any evidence on which they wish to rely, by 26 July 2024; and

(c)    the question of costs will be dealt with on the papers unless it appears than an oral hearing is necessary.

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

REASONS FOR JUDGMENT

KENNETT J:

introduction

1    The applicant (Dr Avard) was appointed to the role of Clinical Director of the Intensive Care Unit (ICU) at Canberra Hospital (the Hospital) in January 2015, having worked for the first respondent (the ACT) since 2004. The government agency responsible for the Hospital at relevant times was the Canberra Health Service (CHS).

2    The events that give rise to the claims for relief in this case arise from four incident reports that Dr Avard lodged through CHS’s health and safety incident reporting system (known as RiskMan) on 3 November 2021. There followed a series of decisions and actions by senior officers in CHS (including the second respondent (Ms Gilmore), the third respondent (Ms O’Neill) and the fourth respondent (Ms Zagari)), concerning Dr Avard, which resulted in her being prevented from returning from leave and then transferred to a non-ICU role in another hospital. At relevant times Ms Gilmore was Executive Director of the Division of Critical Care/Division of Surgery and Ms O’Neill was the Chief Operating Officer of CHS. Ms Zagari commenced as Deputy Chief Executive Officer of CHS on 1 July 2022. (Ms Zagari was not named as a respondent in Dr Avard’s originating application and no formal order joining her appears to have been made. However, the Amended Statement of Claim (filed the day after the proceedings were commenced) and the Further Amended Statement of Claim (FASOC), upon which Dr Avard ultimately relied, both identified her as a respondent. The parties appear to have proceeded on the understanding that Ms Zagari is a respondent to the proceedings and I have proceeded on the same basis.)

3    Eventually, in July 2023, having resigned from her position as Clinical Director, Dr Avard was allowed to return to her substantive role as a Senior Specialist in the ICU.

4    Dr Avard seeks the following relief under the Fair Work Act 2009 (Cth) (the FW Act):

(a)    declarations that:

(i)    the ACT, Ms O’Neill and Ms Zagari contravened ss 50 and 340 of the FW Act; and

(ii)    Ms Gilmore contravened s 340 of the FW Act;

(b)    orders under s 545(2)(a) of the FW Act restraining the ACT from continuing or engaging in certain conduct;

(c)    an order under s 545(2)(b) of the FW Act requiring the ACT to pay compensation to Dr Avard, together with an order for interest under s 547; and

(d)    civil penalties against each of the respondents under s 546(1) of the FW Act, with an order that such penalties be payable to Dr Avard.

5    No order has been made for separate hearings on issues of liability and quantum. In written openings, the applicant sought to defer findings on economic loss to a later hearing and the respondents resisted this course. However, following discussions between counsel, the parties agreed to defer the filing of evidence relating to damages and I acceded to this course. These reasons therefore deal only with questions as to whether contraventions of the FW Act occurred (which, if established, would found declaratory relief). In view of the conclusions I have reached, the absence of a formal order splitting the hearing does not cause any difficulty.

legislative framework

The FW Act

6    Section 50 of the FWA provides that a person “must not contravene a term of an enterprise agreement”. Relevant provisions of the enterprise agreements that applied to Dr Avard’s position at various times are set out below.

7    Section 340 of the Act, which is in Division 3 of Part 3-1 under the heading “Workplace rights”, provides as follows.

340 Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)     has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2)     A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

8    The key concepts in s 340 are a “workplace right” and “adverse action” taken against a person because of that right or its exercise (or proposed exercise). A “workplace right” is defined as follows by s 341(1)-(2).

341 Meaning of workplace right

Meaning of workplace right

(1)     A person has a workplace right if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)     is able to make a complaint or inquiry:

(i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)     if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)     Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)     a conference conducted or hearing held by the FWC;

(b)     court proceedings under a workplace law or workplace instrument;

(c)     protected industrial action;

(d)     a protected action ballot;

(e)     making, varying or terminating an enterprise agreement;

(f)     appointing, or terminating the appointment of, a bargaining representative;

(g)     making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)     agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)     making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)     dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)     any other process or proceedings under a workplace law or workplace instrument.

9    As to what amounts to “adverse action”, s 342 relevantly provides as follows.

342 Meaning of adverse action

(1)     The following table sets out circumstances in which a person takes adverse action against another person.

…

(2)     Adverse action includes:

(a)     threatening to take action covered by the table in subsection (1); and

(b)     organising such action.

(3)     Adverse action does not include action that is authorised by or under:

(a)     this Act or any other law of the Commonwealth; or

(b)     a law of a State or Territory prescribed by the regulations.

…

10    Consideration of whether adverse action has been taken against a person “because of” their exercise of a workplace right (s 340(1)(a)), or “to prevent” such exercise (s 340(1)(b)), is relevantly affected by ss 360 and 361. They are as follows.

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361 Reason for action to be presumed unless proved otherwise

(1)     If:

(a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)     Subsection (1) does not apply in relation to orders for an interim injunction.

11    Section 50 and s 340 are “civil remedy provisions” (see items 4 and 11 of the table in s 539(2)). Dr Avard has standing to commence proceedings in relation to contraventions of these provisions by virtue of being an “employee” (in the case of s 50) and a “person affected by” the contravention (in the case of s 340). Section 545(1) and (2) provide as follows, in relation to applications for orders in this Court.

545  Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)     The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1:     For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:     For limitations on orders in relation to costs, see section 570.

Note 3:     The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4:     There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

(2)     Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)     an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)     an order awarding compensation for loss that a person has suffered because of the contravention;

(c)     an order for reinstatement of a person;

(d)     an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

12    Section 546 provides for civil penalty orders, as follows.

546  Pecuniary penalty orders

(1)     The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note 1:     Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Note 2:     Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).

Determining amount of pecuniary penalty

(2)     Subject to this section, the pecuniary penalty must not be more than:

(a)     if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)     if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

(2AA)     Despite paragraph (2)(b), if:

(a)     the civil remedy provision is a selected civil remedy provision; and

(b)     the person is a body corporate; and

(c)     when the application for the order is made, the person is not a small business employer;

the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).

Payment of penalty

(3)     The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a)     the Commonwealth; or

(b)     a particular organisation; or

(c)     a particular person.

Recovery of penalty

(4)     The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

(5)     To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

The Enterprise Agreements

13    Up to 17 January 2022, the relevant Enterprise Agreement was the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (the 2021 Agreement). The ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (the 2022 Agreement) came into effect on 18 January 2022.

14    The provisions of these agreements that the ACT is alleged to have breached concern an aspect of the processes for assessing and investigating alleged misconduct. That process more generally is relevant to a submission made by the respondents to the effect that actions taken against Dr Avard were not statutorily capable of being “adverse action”. Relevant clauses of the 2021 Agreement were as follows:

111. PRELIMINARY ASSESSMENT

111.1.     In cases where an allegation of inappropriate behaviour or alleged misconduct is made, or an incident occurs which may be deemed to be inappropriate behaviour or alleged misconduct, the appropriate manager/supervisor will undertake an assessment to determine whether the matter can be resolved or whether further action is required.

111.2.     The manager/supervisor may inform and/or seek advice from an appropriate Human Resources adviser, however the manager/supervisor will be responsible for undertaking the assessment unless an actual or perceived conflict of interest exists.

111.3.     The assessment will be done in an expedient manner and generally be limited to having discussions (either verbal or written) about the allegation or incident, with relevant employees, and, if requested, their representatives.

111.4.     Although the principles of procedural fairness apply, this assessment is not a formal investigation (as this may occur after the assessment is undertaken) and is designed to enable a manager/supervisor to quickly determine whether formal investigation or other action is needed or not to resolve the issues. The manager/supervisor will communicate the outcomes to relevant employees and their representatives if any.

111.5    If the manager/supervisor determines that the allegations require investigation the manager/supervisor will recommend to the head of service that the matter be investigated.

111.6    The head of service may determine that no investigation is necessary where the employee admits to the alleged misconduct and the employee agrees that there is no need for an investigation. The employee must fully understand the misconduct they are admitting to and make an admission statement.

…

114. MISCONDUCT & DISCIPLINE

114.1.     This clause establishes procedures for managing misconduct or alleged misconduct by an employee.

114.2.     This clause applies to all employees, except casual employees who are not eligible casual employees. In applying these procedures to officers on probation, temporary employees or eligible casual employees, the head of service may determine that procedures and practices throughout clauses 115 to 119 apply on a proportionate basis according to the circumstances of the case and in accordance with the principles of procedural fairness and natural justice.

114.2.1.     If the process is to be applied on a proportionate basis in accordance with this subclause the content of that process, along with any estimated timeframes, will be communicated to the employee when the process commences.

…

115. DEALING WITH ALLEGATIONS OF MISCONDUCT

115.1.     Upon becoming aware of a matter of alleged misconduct the head of service will determine whether or not the matter needs to be investigated. Where the head of service determines that investigation is required the head of service will refer the matter to the Public Sector Standards Commissioner for investigation.

115.2.     At any stage of dealing with alleged misconduct the head of service may, in accordance with clause 116:

115.2.1.     transfer the employee to other duties,

115.2.2.     re-allocate duties away from the employee;

115.2.3.     suspend the employee with pay; or

115.2.4.     suspend the employee without pay where serious misconduct is alleged.

…

116. SUSPENSION REASSIGNMENT OR TRANSFER

116.1.     This clause applies to all employees including eligible casual employees and employees on probation.

116.2.     In accordance with subclause 115.2, the head of service may suspend an employee with pay or without pay, reassign or transfer an employee where the head of service is satisfied that it is in the public interest, the interests of the ACTPS or the interests of the Directorate to do so while the alleged misconduct is being dealt with.

116.3.     The requirements under subclauses 116.4, 116.5 and 116.10 will also apply in circumstances where an employee has been reassigned or transferred with pay to other duties following an allegation of misconduct, to the extent that the employee is no better off financially than if they had not been reassigned or transferred.

116.4.     The head of service will not normally suspend, reassign or transfer an employee without first informing the employee of the reasons for the proposed suspension, reassignment or transfer and giving the employee the opportunity to be heard. However, the head of service may suspend an employee first and then give the employee the reasons for the suspension and an opportunity to be heard, where, in the head of service’s opinion, this is appropriate in the circumstances.

…

117. INVESTIGATIONS

117.1.     The role of the investigating officer is to establish the facts of the allegations and to provide a report of those facts to the Public Sector Standards Commissioner.

117.2.     The investigating officer will:

117.2.1.     inform the employee in writing of the particulars of the alleged misconduct, and details concerning the instigative [sic] process; and

117.2.2.     give the employee a reasonable opportunity to respond to allegations, which the employee may do in writing and/or at a scheduled interview or in a different manner as agreed with the investigating officer, before making a finding of fact; and

117.2.3.     for written responses the timeframe for response will be as communicated by the investigator and be reasonable under the circumstances; and

117.2.4.     where the response includes an interview provide the employee with at least twenty four hours written notice prior to conducting an interview, and advise the employee if the interview is to be recorded electronically; and

117.2.5.     advise the employee that the employee may have a second person present during the interview, who may be the employee’s union representative or other individual acting as a support person and will allow reasonable opportunity for this to be arranged; and

117.2.6.     provide a record of interview to the employee; and

117.2.7.     give the employee an opportunity to supplement the record of an interview with a written submission, if the employee so chooses; and

117.2.8.     as soon as practicable take any further steps considered necessary to establish the facts of the allegations; and

117.2.9.     provide a written report to the Public Sector Standards Commissioner setting out the investigating officer’s findings of fact.

117.3.     If the employee fails to, or chooses not to, respond to the allegations in accordance with subclause 117.2 within a reasonable timeframe, the investigating officer will prepare the report and set out the findings of fact on the information available.

117.4.     The investigating officer’s findings of fact will be made of [sic] the balance of probabilities.

117.5.     The Public Sector Standards Commissioner may request that the head of service authorise access to relevant ACTPS information and communication technology (ICT) records including email, computer, work phone records, or building access logs if the investigating officer requires access in order to establish the facts of the allegations.

118. FINDINGS OF MISCONDUCT

118.1.     After considering the report from the investigating officer, the Public Sector Standards Commissioner will make a proposed determination on the balance of probabilities as to whether misconduct has occurred.

118.2.     If the Public Sector Standards Commissioner determines that the misconduct has not occurred, the Public Sector Standards Commissioner will notify the employee of this finding and advise that no sanctions will be imposed.

118.3.     If the Public Sector Standards Commissioner makes a proposed determination that misconduct has occurred in accordance with subclause 118.1 the Public Sector Standards Commissioner will:

118.3.1.     advise the employee in writing of the proposed determination that misconduct has been found to have occurred; and

118.3.2.     provide written reasons for arriving at this proposed determination; and

118.3.3.     provide a copy of the investigation report unless this would be inappropriate in the circumstances; and

118.3.4.     advise the employee of the period during which the employee has to respond to the proposed determination that misconduct has occurred. This period must be no less than fourteen calendar days.

118.4.     After considering the employee’s response or, if the employee has not responded, at any time after the period outlined in subclause 118.3.4 has lapsed, the Public Sector Standards Commissioner will make a final determination as to whether or not misconduct has occurred and will:

118.4.1.     inform the employee in writing of the final determination of whether or not misconduct has occurred; and if the determination is that misconduct has occurred:

118.4.1.1.     refer the matter to the head of service for consideration of whether or not disciplinary action is to be taken in accordance with clause 119; and

118.4.1.2.     inform the employee that the matter has been referred to the head of service in accordance with subclause 118.4.1.1.

15    Clauses 117, 120, 121, 122, 123 and 124 of the 2022 Agreement were in substantially the same terms.

the key facts

The Riskman Reports

16    On 3 November 2023 Dr Avard filed four reports via the Riskman system.

17    The first report is identified as Staff Incident ID 1074614. It bears the notification date 3 November 2021 and time 11:17, and relates to an incident said to have occurred at 15:00 on 31 October 2021.

(a)    In the field entitled “Provide a brief Summary of the incident?”, Dr Avard entered:

Vicarious trauma sustained during comfort care in terminal phase of young patient’s life

(b)    In the field provided for further details, she wrote:

patient undergoing comfort care and removal of invasive life supports after hypoxic brain injury sustained after out of hospital cardiac arrest

Palliative care was not provided appropriately due to nursing staff error (clinical incident has been submitted detailing this error)

Family screaming at each other in the room with the dying child

I have been having nightmares and flashbacks, migraines and lack of sleep since the event

I have tried to seek EAP support. Have been unable to obtain an appointment until today, three days after the injury.

I was further traumatised by the ward clerk on Monday 1/11 who told me I needed to re-complete all the cremation certificate and report to the coroner paperwork was completed by me on the afternoon 31/10 as the nursing staff had misplaced/lost or given this to the incorrect person on the Sunday evening.

I was then further traumatised by receiving advice on Monday afternoon regarding a professional misconduct investigation

(c)    Dr Avard recorded that she had received a psychological injury and, in the field entitled “how much time was lost”, entered:

Serious injury received, required 1 day or more time off

18    Staff Incident ID 1074624 is dated 3 November 2021 at 11:36. It purports to describe an incident on 31 October 2021 at 14:00.

(a)    In the field entitled “Provide a brief Summary of the incident?”, Dr Avard entered:

Vicarious trauma sustained through ongoing resuscitation of young man after MVA who subsequently died

(b)    In the field provided for further details, she wrote:

Family response at bedside being present during prolonged massive transfusion, and inability to obtain blood products as rapidly as the patient was requiring it, contributed to moral distress and trauma sustained

(c)    Dr Avard recorded that she had received a psychological injury and, in the field entitled “how much time was lost”, entered:

Moderate injury received, required less than 1 day time off

19    Staff Incident ID 1074628 is dated 3 November 2021 at 11:40. It purports to describe an incident on 20 October 2021 at 14:30.

(a)    In the field entitled “Provide a brief Summary of the incident?”, Dr Avard entered:

I was involved in the trauma code response to this man who suffered a traumatic amputation of left lower limb

Amputated limb on view during resuscitation

At excessive work hours for the fortnight at the time I sustained this vicarious trauma

(b)    In the field provided for further details, she wrote:

Persistent flashbacks and nightmares, intrusive thoughts and poor sleep/nightmares suffered as a result of this

Unable to access EAP in a timely manner to assist due to competing clinical workload

Unable to take time off due to clinical priorities and inability to seek support

(c)    Dr Avard recorded that she had received a psychological injury and, in the field entitled “how much time was lost”, entered:

Minor injury received, no time off needed

20    Staff Incident ID 1074654 is dated 3 November 2021 at 11:44. It purports to describe an incident on 23 October 2021 at 15:00.

(a)    In the field entitled “Provide a brief Summary of the incident?”, Dr Avard entered:

Employee, [redacted] came to my office very agitated and upset. I was alone at the time and no other doctor was in the office in my isolated corridor.

He pointed and shook his finger at me and very exclaimed (sic) that Nick Coatsworth had called him and told him that I had submitted a reference to MDACC that said I had concerns about his ability to undertake procedures relevant to ICU practice and that I did not believe he was able to practice as a senior medical practitioner

He wanted to know why I had provided this reference and what bigger motives were afoot to get rid of him

(b)    In the field provided for further details, she wrote:

I had been in receipt of a formal complaint from all our ICU supervisors of training regarding [redacted] behaviours and feedback from trainees. This had been provided to my Executive Director Lisa Gilmore and to Director of Medical Services Nick Coatsworth months prior to this. No assistance has been provided to me to support and manage this employee despite multiple requests for this assistance.

I had specifically asked not to be put in a position to be asked to provide a reference for [redacted] MDACC application considering this ongoing unresolved performance management issue, especially as I was already in the middle of a professional standards investigation into my management of another poorly performing specialist that I had undertaken completely at the direction of People and Culture Executives and senior managers, the CEOs, the DDGs, the COOs, the Exec Directors (‘s multiple individuals moving through all these roles over 5 years)

I was informed by Nick Coatsworth that I had no choice and that I had to submit a reference for [redacted] application as I was the standing Clinical Director and no SMO could be processed through MDACC without this.

I was informed by Dr Coatsworth that my reference would remain confidential. He reminded me of this on multiple occasions.

I also subsequently discovered that Imogen Mitchell’s MDACC credentialing progressed without a reference from me as Clinical director, therefore this was not a true representation by Dr Coatsworth.

I feel I have been betrayed by those most senior in this organisation and that I am being victimised.

I have needed to take time off work to manage my response to this.

(c)    Dr Avard recorded that she had received a psychological injury and, in the field entitled “how much time was lost”, entered:

Serious injury received, required 1 day or more time off

21    These four reports comprise the first exercise of a workplace right upon which Dr Avard relies in her claim under s 340.

22    It appears that Dr Avard had taken the day off work on 2 November 2021, but had otherwise not taken time off (despite reporting two injuries requiring a day or more of time off work). From 3 to 9 November she performed her usual duties with (according to her evidence, which was not contradicted) no difficulties.

23    On 4 November, Dr Avard had a meeting with Ms O’Neill which apparently took place at Dr Avard’s request. They discussed aspects of Dr Avard’s role as Clinical Director. Dr Avard gave evidence that Ms O’Neill said to her that she should be more careful about what she put in writing, because “everything is FOI’able”. Ms O’Neill agreed that she said something along these lines.

CHS responses to the Riskman reports

24    On 8 November 2021 Dr Avard had a meeting with Ms Gilmore that she described as one of their regular catch-ups. The Riskman reports were discussed on that occasion. Dr Avard said that she had taken a day off, had spoken to the Employee Assistance Program, and felt a lot better. Another matter mentioned during this meeting was the progress of a professional misconduct complaint against Dr Avard arising from earlier events. (This earlier complaint arose from friction between Dr Avard and Professor Frank Van Haren, who at times worked in the ICU, and I will refer to it at the van Haren complaint. The handling of the van Haren complaint features in the case as pleaded by Dr Avard, but ultimately no point was pressed in relation to it.)

25    On 9 November 2021, Dr Avard was asked to attend a meeting with Ms Gilmore and Ms O’Neill in Ms O’Neill’s office. She was informed at that meeting that Ms Gilmore and Ms O’Neill had become concerned about her well-being and were directing her to attend an Independent Medical Examination (the IME direction). She was handed a letter, signed by Ms Gilmore, informing her of this decision (the 9 November letter).

26    The 9 November letter began:

It has come to my attention that in the last several weeks you have made a number of riskman reports in which you report experiencing vicarious trauma, persistent flashbacks and nightmares, intrusive thoughts and poor sleep as a result of incidents which occurred in the workplace.

These reports have led me to be concerned about your wellbeing.

Given my concerns, and my obligations to ensure your safety under the Work Health and Safety Act 2011, I intend to arrange for you to attend a medical examination in accordance with the provisions of the Enterprise Agreement.

27    The letter referred to provisions of the Public Sector Management Act 1994 (ACT) and the 2021 Agreement, and went on to say that Dr Avard would shortly be contacted with appointment details for the IME that she was being directed to attend. It described the purpose of the IME as follows:

The purpose of the medical examination is to seek further medical information to:

a)     assess your capacity to perform the required duties of your position;

b)     assess whether any reasonable adjustments could be made to enable you to continue to work in your position; and

c)     provide comprehensive information on your current and future capacity to perform the duties of your position.

28    The letter also directed Dr Avard, with immediate effect, not to attend the workplace until such time as the medical expert report had been provided and considered (the direction not to attend work). Leave was to be granted under cl 101 of the 2021 Agreement for this period.

29    On 17 November 2021, Dr Avard was informed that the IME had been scheduled for 11 January 2022. That day, Dr Avard’s solicitors wrote to Ms Gilmore asking her to reconsider the direction not to attend work. Ms Gilmore responded on 19 November 2021 to the effect that she was unable to reconsider the direction.

30    Dr Avard’s solicitors wrote to Ms Gilmore on 30 November 2021 complaining of delay in the scheduling of the IME. On 9 December 2021 Ms Gilmore responded that CHS was attempting to negotiate an earlier appointment.

31    Ms Gilmore wrote to Dr Avard shortly afterwards (the letter is undated but appears to have been sent around 13 December) notifying her of an appointment with Dr Prabal Kar on 27 December 2021.

32    The IME direction, the direction not to attend work and the alleged delay in scheduling the IME comprise the first adverse action of which Dr Avard complains.

33    Dr Kar’s report, which is dated 27 December 2021 (the Kar report), records that he saw Dr Avard that day via video telehealth software and she was fully cooperative with the interview process. It is useful to quote some parts of the report at length, as it informed subsequent decision-making.

34    The history taken by Dr Kar included the following.

(a)    Dr Avard said that she had had an eating disorder as a teenager and seen a psychiatrist as an outpatient.

(b)    Dr Avard said that after the birth of her second child she had “had low mood” and it was suspected that she had post-natal depression. However, she recovered within about a week.

(c)    Asked to explain her understanding of the reasons she had been sent to an IME, Dr Avard “said that she had ‘submitted some incident reports relating to psychological injury from incidents on 31.10.2021’” and the employer “had told her that ‘they were concerned about the language of the report’”.

(d)    Recounting the events of 31 October 2023 that led to the Riskman reports, Dr Avard “said that she had ‘felt heightened’”, had “debriefed with a friend” and “reached out to the EAP”.

(e)    Dr Kar continued:

Dr Avard said she had four children. She said at the time, Halloween celebrations were going on. She had not had the time to process her emotions. She had taken the day off on the Tuesday …

Dr Avard said she believed she had vicarious trauma and psychological injury from the work-related incidents. She said all the incident reports were submitted on Monday, 01.11.2021. Dr Avard said she had left some hours after the handover on Monday. She had done several tasks and duties and left after the tasks were done.

On the Tuesday, the next day, she had taken a day off. Dr Avard said she had woken up the next day and her emotions were better, but she did not have “a fully well feeling”. She had returned to work on 03.11.2021, the Wednesday …

(f)    As to the context and reasons for submitting the Riskman reports, Dr Kar said:

Dr Avard said she felt that the entire unit had been suffering from the events over the weekend. She said she had “vicarious trauma” from two weeks before … Dr Avard said, “I was trying to document that these things happened.”

…

I asked Dr Avard the question: “Do you feel Fit for Duty?” Dr Avard replied, “Yes”. Dr Avard said she felt that she had been “trying to raise awareness” by her actions. She said she had been trying to help her team, that it was okay to talk about certain things …

Dr Avard admitted she had “over-described things”. She said she had submitted the incident reports “in an emotional way”. She said, “I did not expect the employer to react in this way.” She said she now realises that the employer had interpreted it in a way that she had not expected.

Dr Avard said she had overreacted in her language “to raise awareness”, and she believed that the employer had also overreacted to her submissions.

Dr Avard said looking back, she feels she should have had a verbal discussion with her manager. Dr Avard said she believes she had “learned a lot from this experience”.

…

… Dr Avard said she believes that she would now do things differently. She said that at the time she had felt it was “cathartic”. She said since then she has had time to reflect on her actions.

Regarding the fourth incident report … Dr Avard said, “I was angry with my boss.” On further exploring these issues, Dr Avard said she agreed that it was wrong for her to have made the Riskman report. She said, “It wasn’t an injury, it was a complaint.”

(g)    Dr Avard denied having any medical or psychiatric condition that required treatment or any condition requiring reasonable adjustments, and any “psychiatric issues”. “She said that she knew her own well being well, and she managed it well. She said she had good self-awareness”.

(h)    The history summarised above was read out to Dr Avard, who “said it was a fair summary”.

35    In the course of his medical status evaluation, Dr Kar observed:

Dr Avard said she can now see how she had interpreted it and what she had been doing, and she could also see how the employer was reasonable in interpreting it in the way they had. She recognised that she had raised the employer’s concern for her health.

36    Dr Kar’s opinion was that Dr Avard had no active psychiatric condition and had not had any work-related injury. He observed:

In my opinion the current situation arose due to Dr Avard impulsively putting in several incident reports at a time when she was feeling frustrated over other work-related matters. It was not that she was traumatised. From my understanding of the matter it does not reflect on her capabilities or her performance. At the worst it shows poor judgement on her part in doing so.

37    On 10 January 2022 Dr Avard received an email from an ACT Government rehabilitation case manager, asking her to discuss Dr Kar’s report with her general practitioner before discussing “the next steps in terms of your rehabilitation and return to work”. Dr Avard’s lawyers corresponded with CHS officials the next day, resulting in an email from Sally Green which said that Dr Avard would “be contacted within the next 24 hours and invited to attend a meeting with CHS representatives, to discuss her workplace arrangements moving forward”.

38    However, on 14 January 2022 Dr Avard was sent a letter signed by Ms O’Neill and headed “Allegations of misconduct: proposed suspension” (the 14 January letter). The letter said that “concerns” had been “raised” relating to Dr Avard’s employment that required a preliminary assessment and that assessment had been conducted in accordance with cl 117 of the 2022 Agreement. (It should be noted that Ms O’Neill was referring to provisions of the 2022 Agreement, despite that agreement not coming into effect for another four days. Nothing turns on this.) The outcome of that process was:

Based on review of the available facts on this matter, and the expectations of senior leaders in completing their duties, a formal investigation is an appropriate next step.

39    The “particulars of the allegation” were set out in an attachment to the letter, which it is appropriate to set out in full.

Attachment A: Preliminary Allegation

Dr Avard breached her duty of care to a patient and CHS by failing to provide a safe patient experience on 31/10/21

Particulars include:

On or about 31 October 2021, records indicate that you abandoned a patient during the terminal phase of her care. Clinical incident report (ID: 1074605) provides that:

“I left the room immediately and obtained the replacement drugs so these infusions could be recommenced. I did not feel I could return to the room and be with the family and patient during the terminal phase of her case as I was too distressed over the incident”.

A number of discussions were held between Dr Avard and Lisa Gilmore during early November 2021 concerning this incident and Riskman entries Dra [sic] Avard had made. Dr Avard denied any underlying concerns triggering the Riskmans where she mentioned suffering from ‘vicarious trauma’ and ‘flashbacks’, nor any concerns moving forward with her ability to lead the ICU unit, despite the incident on 31/10/21 and the multiple Riskman entries.

Following discussions with Ms Gilmore a decision was made by CHS representatives to send Dr Avard for an Independent Medical Examination (IME), to assess any underlying medical considerations to factor, and or and [sic] workplace supports that may be required and to meet CHS duty of care requirements. Dr Avard was notified in writing on 9 November 2021 that she was to be stood aside from her duties until the IME process could be finalised.

The Independent Medical Examination report of 6 January 2022 by Dr Prabal Kar confirms that you do “not have any psychiatric condition that is adversely impacting [your] ability to perform your substantive duties as Senior Staff Specialist and [your] role as ICU Director”, and further that you are “not traumatised. She does not have and has not had vicarious trauma or an “acute stress reaction.” [sic]

The IME conducted by Dr Kar indicates no underlying mental health concerns for Dr Avard, which would provide explanation for Dr Avard’s conduct on 31/10/21 nor her workplace behaviours. As such, it is reasonable to conclude that the issues at hand are performance / misconduct focused.

(Emphasis in original.)

40    The letter continued that “we” (presumably CHS) considered that Dr Avard’s actions “may constitute serious misconduct” that was inconsistent with continuation of her employment. As a result, Ms O’Neill proposed immediately to suspend Dr Avard from duty with pay in accordance with cl 122.2 of the 2022 Agreement (equivalent to cl 116.2 of the 2021 Agreement, extracted above at [14]). A period of long service leave, previously approved from 17 January, was to be “reversed” for the period of the suspension. Dr Avard was invited to provide a written response by 19 January 2022 as to why she should not be suspended with pay. To “ensure the integrity of this process”, Dr Avard was also directed not to discuss the matter further with anybody (other than her lawyers, union or support services) without Ms O’Neill’s permission.

41    The commencement of the misconduct investigation (the first investigation) and the proposal to suspend Dr Avard (the first suspension decision) comprise the second adverse action of which she complains.

42    Dr Avard’s solicitors wrote to Ms O’Neill on 18 January 2022. They sought clarification of several matters relating to the allegation of misconduct and made submissions concerning the proposed suspension. One of those submissions was that suspension was unwarranted because Dr Avard was on approved long service leave and not planning to return to work until late July or early August.

43    Ms O’Neill decided that Dr Avard would not be suspended and would remain on approved long service leave until 29 July 2022. This was communicated to Dr Avard’s solicitors by a letter dated 24 January 2022. The letter observed that arrangements “have already been made for others to undertake her duties during this absence”. It continued:

This decision is made on the following conditions, which are:

(a)     Dr Avard remains contactable for the purpose of the investigation;

(b)     Dr Avard genuinely participate in the investigation;

(c)     Dr Avard does not enter the workplace while she is on long service leave without my approval; and,

(d)     That while we do not intend to approve any variation to Dr Avard’s leave, if at any stage her leave end date is brought forward, I may reconsider the matter of my proposal to suspend her.

44    Dr Avard’s solicitors wrote to Ms O’Neill on 1 February 2022, pointing out that their client’s exclusion from the workplace meant that she could not meet her teaching and research commitments. They sought agreement for Dr Avard to attend CHS premises for the purposes of these activities. They wrote to Ms O’Neill again on 24 February 2022, asking that Dr Avard be allowed to return to work on 28 March 2022 and citing medical advice.

45    These requests were refused in a letter from Ms O’Neill dated 9 March 2022 (the return refusal). That letter said, in part:

An application by Dr Avard to return from her approved LSL early will place CHS in a difficult operational position because, in her absence, the Unit Director role has been backfilled. Further, arrangements are already in place to backfill Dr Avard’s clinical work.

It is my view that the Long Service Leave sought by your client has been approved, and that there is no basis operationally to amend that leave, nor for your client to unilaterally return from approved leave. As per my letter of 24 January 2022 I do not intend to approve any variation in Dr Avard’s leave request.

Should Dr Avard wish to terminate her Long Service Leave early CHS will also need to reconsider the decision to propose to suspend Dr Avard whilst the current investigation into the allegations of misconduct is being conducted. By way of reminder, the direction not to attend the workplace without my prior approval remains in place until further notice.

46    The return refusal is the third adverse action of which Dr Avard complains.

47    Ms Jo-Anne Bauer, a Senior Investigator in the Professional Standards Unit of the Chief Minister, Treasury and Economic Development Directorate (CMTEDD) of the ACT Government, was appointed to conduct the investigation foreshadowed in the preliminary assessment letter. Dr Avard was notified of this in a letter dated 26 April 2022. On 15 May 2022, Dr Avard’s solicitors wrote to Ms Bauer seeking information about the conduct of the investigation.

48    Ms Bauer contacted Dr Avard by telephone on 18 May 2022. In a follow-up email later that day Ms Bauer advised that:

(a)    she would be following the process set out in the 2022 Agreement, an excerpt of which was attached to the email;

(b)    whether to provide a copy of the preliminary assessment was a matter for the “Referral Delegate”, but it was open to Dr Avard to seek a copy under Freedom of Information processes;

(c)    she was in the process of obtaining witness statements; and

(d)    following that process Dr Avard would receive a “letter of final allegations”, including the evidence relevant to those allegations, to which she would be asked to respond.

49    At some stage Dr Avard retained a different firm of solicitors. They (presumably on instructions) did not wait until they received further communication from Ms Bauer before taking further steps. On 10 June 2022 they sent a letter to Mr David Peffer, Chief Executive Officer of CHS, alleging that the conduct of Ms O’Neill and Ms Gilmore was unlawful and amounted to bullying and victimisation (the bullying complaint). The letter requested that Mr Peffer take the following actions:

(a)     formally investigate the allegations of bullying, victimisation and retaliation by Ms Gilmore and Ms O’Neill that are raised in this correspondence;

(b)     confirm in writing that Dr Avard will be able to return to work on 1 August 2022, her scheduled return to work date after her period of long service leave; and

(c)     assuming you do not suspend Ms Gilmore and Ms O’Neill as you investigate the allegations this correspondence raises confirm that, given her concerns, you will introduce a different reporting line for Dr Avard while you complete your investigation.

50    A draft statement of claim was attached to the letter.

51    The bullying complaint is the second exercise of a workplace right relied on by Dr Avard.

52    The “letter of final allegations” foreshadowed by Ms Bauer did not eventuate. Instead, Andrew White, Senior Director of Employee Relations, wrote to Dr Avard on 5 July 2022 advising her as follows.

The matter was referred to the Professional Standards Unit (PSU) and an investigation was commenced. On 23 June 2022, the PSU advised me that their investigation has not identified sufficient evidence to support the preliminary allegations you were informed of in Ms O’Neill’s letter. In accordance with Subclause 121.3 of the [2022 Agreement], the Public Sector Standards Commissioner (PSSC) has referred the matter back to Canberra Health Services for further consideration.

As the Referral Delegate for this matter and based on the advice from the PSU, I am writing to inform you that the investigation will not be continued, and the matter is now considered to be closed.

CHS responses to the Deegan Review

53    Meanwhile, however, further issues had arisen within CHS concerning Dr Avard. In late January of 2022 CHS commissioned Ms Barbara Deegan, a former Commissioner of the Fair Work Commission, to review the workplace culture of the ICU (the Deegan Review). This, according to Ms Gilmore’s memorandum to staff announcing the appointment, was in response to results of a staff survey which suggested the existence of a “toxic workplace culture” and a range of unacceptable forms of behaviour.

54    The memorandum noted that, “[if] needed, Barbara will be undertaking a Preliminary Assessment too”. This was apparently a reference to the 2022 Agreement, and conveyed an intention that any findings Ms Deegan made in relation to misconduct would serve as a “preliminary assessment” for the purposes of cl 117 of the 2022 Agreement.

55    Dr Avard was interviewed by Ms Deegan on 4 March 2022. Ms Deegan’s report was furnished in April 2022 (the Deegan Report).

56    On 17 June 2022, Ms O’Neill sent Dr Avard and her solicitors another letter outlining the outcome of a “preliminary assessment” which had arisen as part of Ms Deegan’s review (the 17 June letter).

57    Again, “preliminary allegations” were set out in an appendix to the letter. These were as follows.

Allegation 1: Over the course of your tenure as Medical Director of the [ICU], you have repeatedly acted in an unreasonable manner towards staff, creating an unsafe environment for [CHS] employees, and patients.

…

Allegation 2: In your capacity as the Unit Director of the [ICU], you have repeatedly undermined the relationship between ICU and other units, namely DonateLife ACT and Medical Emergency Team (MET).

58    The particulars set out under Allegation 1 summarise at a fairly high level what the author drew from the Deegan Report. These were as follows.

Ms Deegan’s assessment contains particulars, and examples of these behaviours which demonstrate a pattern of:

•    Rude and belittling behaviour directed at staff

•    Behaving in an aggressive and unreasonable manner

•    Unreasonably criticising staff, including in front of other employees

•    Acting in a dismissive manner towards Nursing staff

•    Undermining peers and colleagues

59    The letter said that an investigator was to be appointed to undertake an independent investigation into these allegations in accordance with Section N of the 2022 Agreement. An “external investigator with tight timeframes” had been contracted in an attempt to ensure expedition. The commencement of this investigation (referred to in the pleadings as the Deegan Report Investigation) is the fourth adverse action relied on by Dr Avard. (It is the fifth adverse action alleged in Dr Avard’s Further Amended Statement of Claim, but the fourth (which arose from the van Haren complaint) is no longer pressed. The late withdrawal of this part of the case is the subject of a foreshadowed application for a costs order pursuant to s 570 of the FW Act by the respondents.)

60    The 17 June letter also informed Dr Avard that Ms O’Neill had decided to suspend her from duty with pay pursuant to cl 122.4 of the 2022 Agreement. The suspension decision was said to have been made in the light of the seriousness of the allegations (which related to the safety of CHS employees and patients) and the need to protect the integrity of the investigative process. However, Dr Avard was invited to provide a written response within seven days as to why she should not continue to be suspended.

61    This, however, appears to have been a false start. Mr Peffer advised Dr Avard by a letter to her solicitors on 13 July 2022 that, in light of her complaints against Ms O’Neill, he had appointed a new delegate, Ms Zagari, to “review the Deegan report and assess whether it gives rise to allegations of misconduct which ought to be investigated”.

62    Ms Zagari worked quickly. She also wrote to Dr Avard through her solicitors on 13 July (the 13 July letter). She said that the Deegan Report made a number of observations in relation to Dr Avard’s conduct which, although not adequately particularised, “suggest you have repeatedly acted in an unreasonable manner towards staff and that you have undermined the relationship between ICU and other units”. A summary of “the allegations from the Deegan report” was attached. Although the summary is lengthy, it is useful to set it out in order to give an indication of the kinds of conduct Dr Avard was alleged to have engaged in.

DR BRONWYN AVARD

A member of the nursing staff described an incident where the Medical Director berated, then ostracised him because he had mentioned an incident that had occurred between two of the ICU specialists to a member of the Executive. He stated that this had been inadvertent as he believed the Executive Director was already aware of the incident but that the Medical Director had accused him of disloyalty.

Dr Chan noted that one of his first jobs as State Medical Director for DonateLife was to escalate concern about low engagement with donation nurses in the ICU and the referral rates of donations falling. He talked to the consultants and said that there was a potential for negative attention. He said he had talked to the Medical Director who had said to him quite openly that she didn’t believe in organ donation as it cost too much for a limited gain. In his conversation with the consultants he had mentioned that she was not always supportive of organ donation. He said this had been a strategic mistake as a colleague informed her of his remark and he was told she ‘flew into a rage’. She tried to lodge a formal complaint about him and when he asked another colleague to mediate she refused to speak to him. Eventually they had a meeting where she told him that she didn’t trust him, that he ‘seemed angry’ and asked him ‘why do you still bother coming into work, what do you think you can possibly achieve?’ When he brought up their earlier conversation she had responded that he had ‘read too much into it’ and that she ‘didn’t believe in the Authority not the donation’. She also told him he was being too emotional.

Three years previously, as the ACT had ‘dreadful referral rates’ in terms of being invited in for end of life conversations, she had invited a couple of experts from Victoria to visit. She had deliberately chosen a day when the ICU Intensivists had a meeting. She had flagged the visit for months and asked the Medical Director if she could invite the experts to address the meeting (away from her and from Dr van Haren, the State Director at the time). She sent emails and reminders. On the day the Medical Director did not attend the meeting. Dr van Haren had told the Agency Head that the Medical Director ‘votes with her feet’ in relation to organ donation matters. After an hour the Medical Director opened the door and said ‘are you done yet?’.

The Commonwealth Head of Department and the invited guest speakers, came back to spend the afternoon with DonateLife and said ‘We’ve heard murmurings for years that the relationship is poor but what we experienced now was unbelievable’. The Agency Head considered the Medical Director’s behaviour as unprofessional, embarrassing and uncalled for’ [sic] but questioned who would ‘pull her up?’.

A CCC wanted to go home but new [sic] a patient was coming. She could see Dr Oliver and Dr Avard in conversation, handing over. She knew it was not a good time to interrupt but thought ‘I am nurse in charge, it is my job to make sure the bed is ready’. She said ‘sorry, I know you are handing over but…’ and got ‘her head bitten off’. Another doctor, Dr Walsh said ‘are you okay, I can’t believe they spoke to you that way’. The nurse was surprised as she had hardly noticed as she was either used to it or expecting it.

When the Senior MET Nurse attended operations meetings, there were very few where she was not either verbally abused or belittled by someone. Dr Avard, as the chair of the meeting would not call it out and may do the same thing. At the end of the meeting there would be discussion of something that people ‘were proud of’. On one occasion the MET CNC said that she would like to acknowledge work the MET nurses had done managing a difficult patient. Dr Avard said this is not the forum for that to be raised. The CNC had considered that she was part of the ICU team but it got to the point where she became anxious going to those meetings.

One nurse in the MET reported attending an education session and being told by Dr Avard that ‘this is not for you’ and ‘you need to leave, this is for medical only’. New nurses went to teaching sessions and Dr Avard would not engage with them or look at them. One nurse introduced herself to Dr Avard and talked to her for a while until the nurse said she was from the MET and then Dr Avard would not talk to her.

Dr Avard was reported to have treated at least two of the other current consultants, Doctors Mitchell and Chan, poorly:

•    Dr Avard actively excluded Dr Mitchell from the larger group of consultants, including by excluding her from consultant meetings and removing her from a Microsoft Teams chat with the other consultants.

•    Dr Avard ‘gaslit’ Dr Mitchell. For instance, after Dr Mitchell returned to the ICU after being the COVID Director, Dr Avard told her not to attend any consultant meetings until she talked to her and said that the consultants were angry that Dr Mitchell deserted them in their hour of need. Dr Mitchell attended the meeting to explain herself and one of the consultants asked “why are you telling us this” (because they did not consider it necessary for her to do so). There did not appear to be any feeling among the consultants that Dr Mitchell deserted them.

•    Dr Avard said she did not exclude Dr Mitchell. While Dr Mitchell was the COVID Director in ACT Health, Dr Avard removed her from a Microsoft Teams chat and did not include her in the chat until being asked directly to do so. Dr Avard said that this was a mistake. Dr Mitchell did not attend a lot of consultant meetings while she was the COVID Director, and she put communications in the chat of a meeting that Dr Mitchell was not in. Another consultant pointed this out and Dr Avard says she corrected it. Dr Avard said she did not actively remove or exclude Dr Mitchell.

•    On one occasion, Dr Chan was an acting deputy director in ICU and applied for the substantive role. Dr Avard called him into her office and said “I don’t know why you want this, you don’t agree with my leadership style and don’t trust me.” Dr Chan ‘I thought I was doing and [sic] alright job and supporting everyone.’ Dr Chan then withdrew his application.

•    A CCC described an incident around May or June 2021 where she was on the floor when a MET call occurred while Dr Avard was the outreach doctor. The MET call said that a patient needed a bed in the ICU. The only bed available at the time was in Dr Chan’s wing. Dr Avard told the CCC words to the effect “I am not handing over to Sean, I to [sic] go to Liam” and that she would only hand over to Liam. As a consequence, the CCC had to move patients around and re-arrange staff in order to have the patient brought into the ICU.

•    One nurse described an incident where she was on the phone and Dr Avard dragged a patient pink chair in her [sic] office, with the brakes on leaving marks on the corridor and ‘dumped’ it in front of the nurse and walked off. The char [sic] had been in the organ donation room and the nurse was perplexed as to why Dr Avard objected to this as it was an overflow room to sit in and no clinical work was done in the room.

63    It is not clear who was being referred to as “she” in the fourth paragraph of this passage (which seems to consist of paragraphs taken verbatim from the Deegan Report). However, no issue was taken about this. I infer that the reference would have been clear to persons acquainted with the background.

64    Ms Zagari expressed the view that, if substantiated, this conduct would constitute a serious risk to the safety of CHS staff and patients. She therefore considered that it warranted further investigation (the second investigation). Effectively, this was a re-commencement of the (aborted) Deegan Report investigation. It is not separately pleaded in the FASOC as an adverse action.

65    Additionally, Ms Zagari returned to the Riskman reports. She said that she had considered “an allegation that on 3 November 2021 you made improper and inaccurate Riskman reports”. In doing so she had had regard to Dr Kar’s report. She considered that this issue was sufficiently serious to warrant further investigation, as “it resulted in [CHS] incurring unnecessary expense in obtaining independent medical assessment, and paying for a period of leave whilst the assessment was undertaken”.

66    Ms Zagari said that these allegations had been referred for independent investigation by KPMG and that it would particularise the allegations, assemble the relevant material and invite Dr Avard to an interview. (It appears from later correspondence that the matter was actually referred to the ACT Public Sector Standards Commissioner (the Commissioner), who arranged for KPMG to undertake the investigation on his behalf.)

67    As in the earlier letters, Dr Avard was directed not to discuss the matter with any other employee or former employee other than her support person or representative.

68    Ms Zagari also said that she had decided to suspend Dr Avard from duty under cl 122 of the 2022 Agreement, but invited a written response within seven days as to why the suspension should not continue. She said:

In taking this action, I have considered the serious nature of the allegations, including that you have repeatedly acted in an unreasonable manner towards staff and that you have undermined the relationship between ICU and other units including DonateLife ACT and the Medical Emergency Team in a manner which poses a risk to the safety of other [CHS] employees and patients. Further, I considered the integrity of the investigative process, and the potential for undue pressure to be applied to witnesses and potential witnesses and the reasonable fear of some employees that this may happen if you remain in the workplace during the investigation.

69    The fifth adverse action pleaded by Dr Avard comprises the decision to investigate the Riskman reports (the Riskman investigation) “and/or” the proposal to suspend her (the second suspension decision).

70    Dr Avard commenced these proceedings on 13 July 2022, the day she received Ms Zagari’s letter. The commencement of proceedings is the third exercise of a workplace right on which Dr Avard relies.

71    On 14 July Dr Avard resigned as Clinical Director and therefore reverted to the position of Senior Staff Specialist in the ICU.

72    On 15 July 2022, after the filing of an interlocutory application and discussions between legal representatives, the ACT Government Solicitor wrote to Dr Avard’s solicitors advising them that CHS had “revoked” the decision to suspend Dr Avard pending the hearing of an application for interlocutory relief.

73    Dr Avard was due to return from leave on 1 August 2022. She contacted colleagues in the ICU during July 2022 and learned that she was not rostered on to perform any work in the ICU until at least the following February. Her solicitors took this up with the ACT Government Solicitor.

74    On 25 July 2022 Ms Zagari again wrote to Dr Avard through her solicitors. She informed Dr Avard that consideration was being given to transferring her to other duties, under cl 121.2.1 of the 2022 Agreement, upon her return to work. She expressed concern that, in the light of the matters that were being investigated, Dr Avard’s return to the ICU might “pose a risk to the safety of other CHS employees”.

75    Ms Zagari continued:

CHS is of the view that by returning to the ICU, the integrity of the investigation process may be comprised [sic] as you interact with those persons who have made allegations against you and who are or may be concerned that you may apply pressure upon them as witnesses or potential witnesses in the investigation. In that regard, we have been advised by some of your colleagues that you have already contacted them to set up meetings and they have expressed concern as to any such proposed meetings in the context of the current investigation.

76    CHS therefore proposed to transfer Dr Avard to the position of Clinical Advisor, Clinical System Governance (in the Office of the Chief Medical Officer and Office of the Chief Psychiatrist) until the finalisation of the investigation. Dr Avard was invited to provide a written response to this proposal by midday on 29 July 2022.

77    Ms Zagari was not the only officer in CHS who was concerned about Dr Avard returning to the ICU while allegations against her were being investigated. On 26 July 2022 Ms Kalena Smitham, Executive Group Manager of People and Culture in CHS, sent an email (the staff email) to Dr Manoj Singh (the acting director of the ICU) and two other senior staff members in the ICU (Rosalie Alderson and Tina Xu). It was then forwarded by Ms Alderson and Ms Xu to other staff in the ICU. The email said:

Hi team,

I write to advise you of an update regarding Dr Avard’s return to work. The team may be aware Dr Avard was scheduled to return to ICU, in a senior staff specialist capacity, from long service leave on 1 August 2022.

All possible steps are being taken for Dr Avard to not return to the ICU pending the outcome of the investigation.

Staff do not have to accept meetings with Dr Avard if they do not wish and if the request to meet relates to matters connected to work and if they are unsure how to proceed advise them to please contact their Acting Clinical Director for advice.

78    The staff email was forwarded to other staff in the ICU (including Dr Avard herself) on the same day. The staff email is the sixth adverse action of which Dr Avard complains.

79    Dr Avard’s solicitors wrote three letters to Ms Zagari on 26 July 2022.

(a)    The first, apparently sent during the morning, made various complaints about the decision to refer the issues arising from the Deegan Report for investigation, responded to the proposed transfer of Dr Avard, and asked (in view of Dr Avard’s concern about her reputation) that any communications with ICU about the matter be agreed with her. It sought a response by 4.00 pm.

(b)    The second was sent in the light of Ms Smitham’s email (which, as noted above, had been forwarded to Dr Avard). It contended that the investigation was prejudiced (by the email having been sent to potential witnesses) and that CHS had prejudged the outcome. It alleged that Ms Zagari’s decision in relation to transferring Dr Avard was affected by bias. It advised that the “outrageous” email from Ms Smitham might be relied on in the proceedings which were under way.

(c)    The third letter was a “concerns notice”, alleging that Dr Avard had been defamed and demanding apologies from everyone who had distributed Ms Smitham’s email.

80    Responding to the first of these letters, on 27 July 2022, Ms Zagari wrote to Dr Avard’s solicitors. While adhering to the view that the role of Clinical Advisor, Clinical System Governance was a suitable one for Dr Avard, she indicated a willingness to consider other positions. She did not regard any of three other positions proposed in the solicitors’ letter as suitable. However, she said that CHS was prepared to transfer Dr Avard to a position of Career Medical Officer in the Emergency Department at Calvary Hospital, Bruce (Calvary), with her salary maintained. CHS was also amenable to Dr Avard splitting her time between the two positions it had identified for her. Dr Avard’s solicitors responded on the same day rejecting these roles and proposing two others.

81    On 28 July 2022 Ms Zagari wrote to Dr Avard through her solicitors, advising her of the decision to transfer her to a position as Career Medical Officer at Calvary from Monday 8 August 2022. This decision (the transfer decision) is the seventh adverse action of which Dr Avard complains.

82    Further heated correspondence followed, along with an interlocutory application in these proceedings which prompted further negotiations. On 19 August 2022 Ms Zagari wrote to Dr Avard’s solicitors revoking the transfer decision and transferring her instead to the position of Advanced Trainee, Palliative Care at Calvary from Monday 22 August 2022.

Outcome of the misconduct investigation

83    The misconduct investigation initiated by the 13 July letter continued until July 2023. Dr Avard was interviewed by KPMG in March of that year. The Commissioner wrote to CHS on 7 July 2023 stating that, as to each of the allegations, he agreed with the investigation report that there was “insufficient evidence to conclude on the balance of probabilities” that Dr Avard had acted in the manner alleged. (The investigation reports themselves are not in evidence.) The Commissioner added:

It is noted the investigation was made problematic due to witnesses not willing to participate in the process. While I have not identified any findings of misconduct, I suggest there are indications that Dr Avard, at times might give more emphasis to the importance of relationship management and team building in her communication with other staff, particularly given the demands on all ICU staff.

84    The Commissioner wrote to Dr Avard in substantially similar terms on the same day. Correspondence between Dr Avard’s solicitors and CHS and its solicitors followed. Staff in the ICU were advised on 17 July 2023 that Dr Avard would soon be returning. She returned to duty in the ICU on 18 July 2023.

the adverse action claims

Preliminary issues

Actions authorised under a law of the Commonwealth

85    The respondents submit that each of the alleged adverse actions other than the return refusal and the staff email did not constitute “adverse actions” for the purposes of s 340. They rely for this submission on s 342(3)(a), which has been set out above at [9].

86    The “law of the Commonwealth” under which the actions were said to be “authorised” is the FW Act itself. Each of the five actions to which the submission was directed was, so the respondents submit, within the rights conferred on CHS by the Enterprise Agreement that was operative at the time. Each of those Enterprise Agreements was made and approved by the Fair Work Commission pursuant to the statutory framework in Part 2-4 of the FW Act. Each was given statutory force by the FW Act, in that s 50 provides that a person to whom a term of an enterprise agreement applies must not contravene it (s 50, as noted above, is a “civil remedy provision”, and relief including civil penalties may be ordered in the event it is contravened). Hence, it can properly be said that the Enterprise Agreements, while in force, were given “the force of a law of the Commonwealth” by the FW Act. French J used that turn of phrase in respect of an award under the earlier Workplace Relations Act 1996 (Cth) in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 noted at [51] (Wanneroo). Hence, the respondents submit, action which the employer is entitled to take under the terms of an enterprise agreement is within s 342(3)(a) and not capable of constituting “adverse action”.

87    The evident purpose of s 340, read with the objects in s 336, is to protect workplace rights by ensuring that they can be acquired and exercised without adverse consequences: Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; 326 IR 179 at [41] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) (Qantas HCA). In that vein, the “adverse actions” that contravene s 340(1) and can therefore attract sanction (listed in s 342) are not limited to actions that are unauthorised or unlawful for some other reason. It is the reason why the action is taken, rather than some supervening unlawfulness, that results in contravention of s 340. Relief is thus available for contravention of s 340 whether or not there exists some other basis upon which the relevant action might be restrained or reversed by order of a court. This understanding is at least consistent with the relevant part of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), which notes that the scope of the conduct captured by the definition in s 342(1) is based on conduct that was the subject of freedom of association, unlawful termination and other provisions in the earlier legislation.

88    The respondents’ construction of s 342(3)(a) would significantly narrow the concept of adverse action and thus the scope of the protection conferred by s 340. It would exclude from the concept of adverse action any acts that were (to quote from the written submissions) “explicitly required, or otherwise permissible, in the enterprise agreement” and “consistent with a party’s obligations in the enterprise agreement”. Action detrimental to an employee would therefore qualify as “adverse action” only if it was inconsistent with the employer’s obligations under the agreement (in which case it would also contravene s 50) or went further than what was permitted under the agreement. This result is inconsistent with what otherwise appears to be the intention of s 340, and the construction should therefore be accepted only if the text demands it. This point was made by Flick J, rejecting a similar submission, in Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; 232 FCR 560 at [46] (Rio Tinto).

89    The respondents submit that Flick J in Rio Tinto did not have the benefit of argument concerning the breadth of the term “under” in s 342(3)(a). The same point is made concerning the reasoning of Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [281]-[294] (De Martin), where Rio Tinto was in substance followed. This may be correct; however, it does not make these cases irrelevant. There was ultimately no real controversy concerning the effect of the term “under”: to the extent that an enterprise agreement gives rise to legal rights and obligations, it plainly does so “under” the FW Act in that the Act (and not, eg, the law of contract) provides the foundation for those rights and obligations: cf, eg, Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [80] (Gummow, Callinan and Heydon JJ).

90    A more significant question is the nature of the rights created by an enterprise agreement and, hence, the sense in which it can be said to “authorise” action. In Wanneroo at [51] French J said that an award was given the force of a law of the Commonwealth even though it “is not a law”. This distinction is a long-standing one in Australian industrial relations law. French J cited Ex parte McLean (1930) 43 CLR 472 at 479 (McLean), where Isaacs and Starke JJ said:

The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the Commonwealth. In effect, the statute enacts by the prescribed constitutional method the provisions contained in the award.

91    Enterprise agreements have a similar status. In James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [42], Griffiths and SC Derrington JJ described an enterprise agreement as a “statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down by the [FW Act]”, before setting out the following passage from Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 at [89]:

[T]he Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and … will be felt also by those who did not agree to them. Someone such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.

92    Rangiah J (dissenting in the result) set out the same passage at [223], having said at [222]:

Enterprise agreements are not contracts: cf Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-422, 452-453 [Byrne]. Neither are enterprise agreements legislative instruments within s 8 of the Legislation Act 2003 (Cth). Although enterprise agreements have been described as having a “legislative character” and “statutory force” and as being “a creature of statute”, they are not laws.

93    His Honour then referred to the passages from McLean and Wanneroo that I have set out above (at [224], [226]) and to Byrne at 425, where Brennan CJ, Dawson and Toohey JJ said:

Having regard to the public aims of the legislation, its scope and purpose is not such as to disclose any intention to benefit or protect employees or any other class of persons by conferring on them a right of action at common law for breach of an award obligation. However, in pursuit of those aims the Act does provide for the enforcement of awards thereby giving them statutory force. The appellants’ argument tended to focus upon the award itself rather than the Act. But an award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty enforceable by way of a civil action for damages, then the necessary intention that it should be so regarded must ultimately be found in the Act and not the award. The Act discloses no such intention and, indeed, cannot do so in the absence of any specification of the duties which might be imposed by an award. On the other hand, the Act can and does disclose a contrary intention in providing a means for the enforcement of awards which does not contemplate the existence of private rights enforceable by way of an action for damages.

(Footnotes omitted.)

94    In the same case at 455, McHugh and Gummow JJ said:

The present case is concerned with the operation and effect of the Award, which draws its legal efficacy from the rather special provisions of the 1904 Act and now the 1988 Act. Of itself, the Award could not answer the description of a law of the Commonwealth. It is well established that the Award is made part of the law, not by its own force but by force of its adoption by the statute, which makes the directions contained in it “binding and enforceable in law”.

(Footnotes omitted.)

95    While an enterprise agreement is made “under” the FW Act, therefore, it is neither an exercise of delegated legislative power nor a statutory instrument that derives from the Act a capacity to alter legal rights and duties. It is a quasi-contractual document (though clearly not a contract in any legal sense) which s 50 of the FW Act requires to be complied with by the persons to whom it applies (a “factum”, as it was put in McLean, upon which s 50 operates).

96    Thus, where an enterprise agreement requires something to be done by an employer, there is in effect an obligation to do that thing by force of s 50. Doing that thing might well therefore not constitute adverse action, as a result of s 342(3)(a). That issue may not arise in practice, because (a) the motivation for the action would likely be the statutory obligation rather than any exercise of a workplace right, and (b) the court would be unlikely to grant any remedy for doing an act that was required to be done anyway. On the other hand, where an enterprise agreement permits something to be done, it is neither granting a statutory power to take that action nor exempting that action from consequences under statute or the general law. It is merely confirming that the taking of that action does not contravene any express or implied obligations under the agreement. The agreement does not thereby “authorise” action in the sense of conferring on somebody a right to do something that would otherwise be unlawful (cf De Martin at [289], quoting Rio Tinto at [66] and Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 at 18 (Jordan CJ)).

97    I therefore reject the submission that actions which were permitted under the Agreements were “authorised” under the FW Act within the meaning of s 342(3)(a) and for that reason not “adverse actions”. In what follows, I will not refer to this submission again in relation to the individual adverse actions pleaded in this case. However, other submissions are advanced under s 342(3)(a) which will be dealt with in my reasoning on the individual actions.

Exercise of workplace rights

98    It is not in doubt that Dr Avard exercised workplace rights, within the meaning of s 340(1)(ii), when she:

(a)    made the Riskman reports;

(b)    made the bullying complaint; and

(c)    commenced these proceedings.

99    What is in dispute, for the purpose of the adverse action case, is:

(a)    (in relation to some of the pleaded actions) whether they were “adverse” in the relevant sense; and

(b)    the causal link between the actions and Dr Avard’s exercise of workplace rights.

100    The first of these issues will be considered in the context of the particular actions. The second calls for some preliminary observations at a general level.

Action taken “because of” an exercise of a workplace right

101    Section 361 of the FW Act, which has been set out above at [10], reverses the onus of proof as to whether action was taken because of an exercise of a workplace right. It erects a rebuttable presumption that the reason for the action was that which is alleged as a component of a contravention of Part VAA. As noted in Qantas HCA at [63] (Gordon and Edelman JJ), this provision recognises that it is usually the decision maker who is best placed to adduce evidence as to the reasons for a decision. Proving “otherwise”, for the purposes of s 361, involves proving that the relevant conduct was not motivated by reasons that included the prohibited reason; so that the question for the Court is whether the prohibited reason was a “substantial and operative reason” for the decision: Short v Ambulance Victoria [2015] FCAFC 55 at [54]-[55] (Dowsett, Bromberg and Murphy JJ). The relevant inquiry is therefore into the reasoning process of the person who decided to take the action (the decision maker), and involves a question of fact.

102    The law has not always been clear about what aspects of the factual matrix are understood to form part of the decision maker’s reasoning process for these purposes. In Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; 191 FCR 212 at [28] (Barclay FCAFC) Gray and Bromberg JJ said that what needs to be identified for the purposes of s 340 is the “real reason” for the action, which is not necessarily the reason that the decision maker asserts or believes to have actuated their decision. On appeal from Barclay FCAFC, there was debate concerning whether the relevant inquiry was “subjective” or “objective” or some combination of the two. French CJ and Crennan J emphasised that the question was what was the decision maker’s reasoning process, and that direct testimony from the decision maker would therefore normally be very important (although it could be shown to be unreliable by other evidence): Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [44]-[45] (Barclay). Gummow and Hayne JJ regarded the distinction between subjective and objective inquiries as unsound (at [120]-[121]), noting that an inquiry into “objective” reasons “risks the substitution by the court of its own view of the matter for the finding it must make upon an issue of fact”. Heydon J at [146] firmly rejected the notion that “unconscious” elements in an impugned reasoning process were relevant. The subsequent course of authority (which is summarised by Snaden J in Serpanos v Commonwealth [2022] FCA 1226 at [106]-[113] (Serpanos)) appears to establish that the state of mind of the decision maker means, relevantly, the matters that the decision maker consciously took into account (see at [107]).

103    Sometimes decisions are taken by a group of people working collectively, or by a decision maker who takes into account the advice or opinions of others. Decisions expressed to be made by a group, where the thought process of each member would appear to be necessarily relevant, can for present purposes be put to one side. As to a decision by a single decision maker who relies on or is influenced by the advice of others, there is a line of authority in the Full Court indicating that the decision may be found to have been made for a prohibited reason if that reason was part of the thinking of one of those other people: see eg Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 at [90]-[91] (Greenwood, Besanko and Rangiah JJ) (Red Cross); Wong v National Australia Bank Ltd [2022] FCAFC 155 at [25]-[26] (Katzmann, Charlesworth and O’Sullivan JJ) (Wong). In Serpanos at [112]-[123], Snaden J identified a tension between this line of authority and other cases (including Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 (BHP Coal)), where it was emphasised that the reasoning process of the actual decision maker was determinative, but treated the Full Court cases as binding. His Honour summarised the effect of the authorities as follows (at [123]).

[In] assessing the reasons for which conduct amounting to adverse action was engaged in, the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. That threshold level has been described as “indispensable”, “material” and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’”.

(Citations omitted.)

104    The resolution of the tension perceived by Snaden J may lie in the proposition that people whose influence rises above the relevant threshold are, in effect, joint decision makers. The Court in Red Cross at [91] accepted that “a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a prescribed purpose” (emphasis added). I also note that the Full Court in Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; 292 FCR 34 at [221]-[228] saw no “necessary inconsistency” between Barclay and BHP Coal on the one hand and the Red Cross and Wong line of authorities on the other. (An appeal was dismissed (Qantas HCA) but this aspect of the Full Court’s reasons was not challenged.) If the question is one of identifying who were the decision makers in fact, that may tend to suggest that the relevant “threshold” is relatively high; that is, it is only people actually or metaphorically “in the room”, whose opinions carry real weight, that are relevant. If that is correct, the employer need not lead evidence about the thought processes of staff or external advisers who merely gave advice or made recommendations to the person who had responsibility for deciding. In any event, the position stated in Serpanos was not challenged by any party in the present case.

First “adverse action”: the IME direction and the direction not to attend work

Adverse action?

Threshold issue: was the action authorised under a law of the Commonwealth?

105    The respondents submit that these actions were not “adverse actions” as a result of s 342(3)(a). While their submissions refer to the Work Health and Safety Act 2011 (ACT) the argument, as I understand it, is that the respondents’ obligations under that Act provided the justification for exercising powers under the 2021 Agreement and thereby confirmed that the action was taken in good faith. The basis on which s 342(3)(a) is said to be engaged is therefore the 2021 Agreement. I reject this submission, to the extent that it seeks to recruit s 342(3)(a), for reasons set out above.

106    A further argument, also based on s 342(3)(a), is advanced. This is that the action was authorised under the Disability Discrimination Act 1992 (Cth) (the DDA) and therefore authorised under a “law of the Commonwealth” for the purposes of s 342(3)(a). The steps in the argument are:

(a)    the content of the Riskman reports indicated a possibility that Dr Avard was labouring under a disorder, illness or disease that affected her thought processes and thus came within the definition of “disability” in s 4 of the DDA;

(b)    under s 5(2) of the DDA, a person “discriminates” against another person (the aggrieved person) if they fail to make “reasonable adjustments” for the aggrieved person and the result is that the aggrieved person is treated less favourably than a person without the relevant disability;

(c)    according to Ms Gilmore’s evidence, the IME direction was issued in order (inter alia) to assess whether reasonable adjustments could be made to enable Dr Avard to continue to work in her position; and

(d)    s 5(2) of the DDA therefore provided “legal authority and power” for both directions.

107    I reject this submission also. The actions were taken at a point where no conclusion had been reached by any relevant person that Dr Avard had a disability and no question had arisen as to whether she required “reasonable adjustments” in order to continue to work. Dr Avard herself was certainly not claiming to suffer a disability or to need such adjustments. Despite Ms Gilmore’s evidence, I do not accept that the IME direction had anything to do with assessing whether “reasonable adjustments” could be made for Dr Avard. That assessment could begin only after an assessment (to which the IME report might contribute) of whether Dr Avard in fact had any disability and how, if at all, it affected her ability to perform her duties.

108    There remains a question whether these actions came within the relevant language of s 342(1): that is, whether they “injured” Dr Avard in her employment or “altered the position” of Dr Avard “to her prejudice”.

Actions protective of Dr Avard?

109    The respondents submitted that the steps taken on 9 November 2021 were founded upon concern for Dr Avard and were protective rather than detrimental. I have not accepted this submission for the purpose of determining whether “adverse action” occurred. The reasons why action is taken are obviously relevant to the causation issue under s 340, but do not in my view have a bearing on whether the action causes an employee injury in their employment or changes the employee’s position to their prejudice.

Injury in employment or alteration of position

110    Those questions must turn on the objective effects of the action. It is useful to note at this point that the nature of the relevant action (including whether it was relevantly injurious or prejudicial) is not part of the issue as to which, under s 361, the respondents bear the onus of proof. Dr Avard bears the onus of proving that the actions pleaded were “adverse actions”.

111    Neither action changed Dr Avard’s “position” to her detriment. She remained in her role as Clinical Director and continued to be remunerated for that role. She was not deprived of any leadership status or management responsibilities, although she was relieved of those responsibilities while absent from the workplace. The direction not to attend work did not prejudice Dr Avard financially because she was placed on “other leave” (pursuant to cl 101 of the 2021 Agreement). She received full pay and did not need to use any of her ordinary leave entitlements.

112    I therefore turn to whether the decisions “injured” Dr Avard “in her employment”.

113    The direction not to attend work did prevent Dr Avard from practising her clinical skills. For a medical practitioner, denial of the opportunity to keep one’s clinical skills current is detrimental at least if it extends for a significant period. This was recognised in a contract context in Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; 71 NSWLR 633 at [427]-[428]. However, it is not apparent that any absence from duty is detrimental in this sense. If that were the case, doctors would always resist taking leave. The direction not to attend work was in place only from 9 November 2021, when Dr Avard was referred for an IME, to 14 January 2022 when the decisions consequent upon Dr Kar’s report were made. The evidence does not show that an absence from clinical practice of that duration was detrimental to Dr Avard from a professional point of view. It appears that Dr Avard was not completely prevented from exercising her skills: she was apparently not prevented from assisting junior doctors who were sitting examinations at the time (although she gave evidence that this was made much more difficult); and her work at Shoalhaven Hospital does not seem to have been affected.

114    Dr Avard deposes to having felt “powerless”, “overwhelmed”, “anxious”, “scared”, “very worried about my colleagues and the staff in ICU”, “struggling to cope” and “highly anxious and frequently teary”. She appears to submit that this “significant adverse impact on her mental state” is a reason why the IME direction and/or the direction not to attend work should be characterised as “adverse action”. The respondents resisted this submission.

115    Dr Avard’s description of how she felt at the time does not purport to be a diagnosis of any ongoing or even medium term condition. To the extent that it purports to suggest any effect on her beyond being upset about the decision, it is at odds with the picture she presented to Dr Kar around six weeks later and the conclusions in his report. I am not in a position to find that the decision occasioned any material injury in this respect.

116    In addition, the respondents’ position is correct in principle. The expression “injures” in s 342 is no doubt of wide import (see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) (Patrick Stevedores); Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [33] per Perry J (Premier Motor Service); Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348 at [70] per Logan and Katzmann JJ;  Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 at [230] per RD Nicholson J (quoting Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290-292, which in turn quoted Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 (Ellicott J) (Squires)). However, the words “in his or her employment” must be given some operation. The harm that constitutes the injury must be harm to rights or interests that the employee has or enjoys as an employee. Thus, while no case of which I am aware has squarely dealt with an argument of the present kind, all appear to proceed on the basis that injury to a person in his or her employment means injury to the person’s employment status, remuneration or enjoyment of a safe and respectful workplace.

(a)    In Squires at 164, Ellicott J said (in relation to a predecessor of s 340):

The words ‘injure in his employment’ are in the context of s 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment.

(Emphasis added.)

(b)    Earlier, in Childs v Metropolitan Transport Trust [1981] IAS Current Review 946; 29 AILR 24, Smithers J had said (at 948):

I cannot help thinking that ‘injury’ refers to deprivation of one of the more immediate practical incidents of [an employee’s] employment, such as loss of pay or reduction in rank.

(c)    In Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844 at [20] (CPSU), Finkelstein J observed that “[injury] is concerned with an actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee”.

(d)    See also Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329 at [71]-[75] (Spender J), [139]-[140] (Branson J) and Premier Motor Service at [34] (Perry J).

117    The discussion in these cases supports the view that s 340 is concerned with abuse of the power of an employer, not with the infliction of harm generally. Psychological injury or hurt feelings may in an appropriate case be relevant to the amount of compensation to be awarded under s 545 for a contravention of the Act (and possibly to the assessment of a pecuniary penalty under s 546). However, harm of this kind is not sufficient in itself to render an action “adverse” (as defined in s 342) so as to give rise to a contravention of s 340.

118    No explanation has been offered as to why the IME direction in itself was injurious or prejudicial to Dr Avard. While minds may differ as to whether the direction was necessary, it was an understandable and not disproportionate response to what the Riskman reports suggested about Dr Avard’s state of mind. For a medical professional working in a senior position that requires decision-making under significant pressure (as well as leadership of other medical staff), being required to undergo a medical examination to check on one’s mental state is not, without more, injurious or prejudicial.

119    It was not pleaded that either of the directions affected Dr Avard’s professional reputation adversely. Publicising to her colleagues the reason why she had been directed to take leave might potentially have had that effect, but that would constitute a distinct “action” that should be distinctly pleaded. In any event, no such publication was relied on.

120    I find, therefore, that the IME direction and the direction not to attend work did not constitute “adverse action” in relation to Dr Avard and therefore did not contravene s 340. However, in case that finding is wrong, I have also considered whether that action was taken “because of” her having exercised a workplace right.

Because of the exercise of a workplace right?

121    It is not disputed that Dr Avard exercised a workplace right when she made the Riskman reports. The question is whether, if the actions being discussed here were “adverse actions”, they were taken “because of” that exercise of a right.

122    I have framed the question in this way in order to highlight a simple but important point. Section 340 was infringed if adverse action was taken against Dr Avard because (or partly because) she had used the Riskman system to highlight what she perceived as problems. It was not infringed if the respondents were responding only to what they learned or deduced from the reports. Thus, for example, if Dr Avard had been referred for an IME as a result of mentioning to Ms Gilmore in a conversation that she was traumatised by particular events, there would be no issue.

123    In the light of the discussion at [101]–[104] above, it is important to identify the relevant decision maker or decision makers. The particulars to relevant paragraphs of the FASOC identified the relevant decision, and the source of the assertion that it was made because of the Riskman reports, in the 9 November letter from Ms Gilmore. No other decision maker was suggested. The applicant’s outline of opening submissions did not elaborate further on the identity of the decision maker(s). However, in closing submissions it was put that there was “considerable evidence that Ms O’Neill, Ms Smitham and Mr Peffer made indispensable/material contributions to Ms Gilmore’s decision-making”. If that proposition is accepted it causes a significant problem for the respondents, because they led no evidence from these persons concerning their reasoning processes.

124    The respondents submit that the proposition cannot be accepted. They submit that the involvement of persons other than Ms Gilmore was not pleaded; and that Dr Avard bears the onus of proving who was involved in making the decision.

(a)    As to the pleading issue, I do not read the relevant paragraphs of the FASOC as having identified Ms Gilmore (and nobody else) as the relevant decision maker. As noted above, her letter of 9 November is referred to in the particulars as embodying the decision and stating its reasons, but it is not distinctly pleaded that she was the decision maker. The FASOC does not take a position as to the identities of the persons who made or contributed to the decision. Nor is there any clear authority for the proposition that the identity of the alleged decision maker needs to be pleaded by an applicant. The rationale for the presumption in s 361 is that in many cases the applicant—at least until all of the evidence is on—will have little or no knowledge of how or by whom the relevant decision was made.

(b)    Section 361 is engaged where an application involves an allegation that “a person” took action for a particular reason. A “person” includes a body corporate (Monash Health v Singh [2023] FCAFC 166 at [113] (Katzmann, Snaden and Raper JJ) (Monash Health)); and the imposition of an onus of proof on the “person” concerned (s 361(1)(b)) strongly suggests that the expression was intended to comprehend an entity against which relief is sought (including, as in the present case, a body politic). The onus of proof borne by the Territory in this case thus goes to establishing the basis on which decisions taken by its officers and on its behalf were made. There is much to be said, therefore, for the view that that the Territory must establish who made the relevant decisions (including by leading evidence that nobody other than the identified person(s) played a material role in them) as well as the thought processes of the officers involved. The authority cited (Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 at [37] (Lee, Madgwick and Gyles JJ)) does not say anything to the contrary.

(c)    This is subject to the need for litigation to be conducted sensibly and fairly. Normally, where conduct is alleged to have been engaged in by a corporation or a body politic, it will be necessary for the applicant to identify the employee or agent through which the entity acted (cf Monash Health at [116]). Cases may arise in which a respondent is unfairly taken by surprise by a submission that some previously unidentified officer or employee played an indispensable role in the critical decision. Unfairness of that kind is likely to be curable by a grant of leave to re-open and lead further evidence. However, if there is room for an argument that some other person was involved, that may well be because the respondent—who must necessarily put a positive case as to who made the decision and why—has not been sufficiently thorough in closing off other avenues.

125    In the present case the following evidence was led.

(a)    Ms Gilmore recounted in her affidavit having a discussion with Dr Avard on 8 November 2021, considering the contents of the Riskman reports further (along with what she understood to be CHS’s responsibilities under the Agreements and health and safety legislation), and these things leading her to “the decision that it was appropriate for me to exercise my discretion under cl 82.30.1 of the [2021 Agreement]”. She deposed that the same issues, together with CHS’s duty of care to its patients, led her to determine (“I determined”) that it was best for Dr Avard not to attend work pending the IME. She also deposed that the two decisions were made “solely for the reasons set out above”. She thus identified herself as the decision maker and gave an exhaustive account of the matters that she considered, which did not include the advice or opinions of any other officers. This evidence is to the contrary of any submission that other persons were involved in the decision.

(b)    Ms Gilmore’s answers in cross-examination were unclear as to whether she had discussed the issue with Ms O’Neill (who was her boss) before coming to a decision or only afterwards. She said that Ms O’Neill had agreed with her decision. She did not accept that, if Ms O’Neill had disagreed, she would have taken a different course. Ms Gilmore was asked whether she had sought advice from Mr Peffer, and responded “we informed him of the decision” (which I take to be a firm denial that input was sought or received from him). She accepted that her decision might have been affected if Mr Peffer had had a different view, from which I infer that he was informed before the decision was conveyed to Dr Avard. Ms Gilmore was firm in her evidence that it was she who made the decision.

(c)    Ms O’Neill’s evidence in chief was that Ms Gilmore told her on the morning of 9 November 2021 that she was contemplating referring Dr Avard for an IME and removing her from the workplace pending that. Ms O’Neill then read the Riskman reports and agreed with “[Ms Gilmore’s] decision that that was an appropriate course of action”. She also agreed to be present at the meeting when Dr Avard was informed of the decision. She agreed to go to the meeting to support Ms Gilmore and provide any information Dr Avard might seek about the process. She said:

Ms Gilmore made the decision. I read the material and I advised her that I thought it was the correct decision to make in the circumstance.

(d)    In cross-examination Ms O’Neill accepted that, if she had had a different view, she would have expected Ms Gilmore to take that into account. However, she was firm in her evidence that Ms Gilmore did not need her approval: “She is an independent decision maker. But it was appropriate that she discussed her thinking with me.” She did not accept that she had “discussed” the decision with Mr Peffer but said that she had informed him of the decision. She did not recall whether that was before or after the decision was issued, or whether Ms Gilmore was present. Ms Gilmore did accept that she had showed the Riskman reports to Mr Peffer. She ventured that it was important for Mr Peffer, as CEO, to be made aware of important decisions that were being made.

126    The summaries in the previous paragraph reflect the level of generality at which the cross-examination proceeded. Neither of the witnesses was tested on the detail of their discussions with each other and Mr Peffer: for example, it was not put to the witnesses that there had been any substantive discussion of factors for and against the proposed decision. As to Ms Smitham, it was not squarely put to Ms Gilmore that she had played any role in the decision made on 9 November 2021. Ms Gilmore was asked whether she had spoken to Ms Smitham on 8 November but could not remember doing so. I am therefore left with the witnesses’ descriptions of their interactions and thought processes. These descriptions are not contradicted by any other evidence and I accept them. Dr Avard’s submission that there is evidence of Ms O’Neill and Mr Peffer having played a role in the decision does not really go beyond speculation that they might have taken an interest because they were Ms Gilmore’s superiors and there had been some level of concern about Dr Avard’s stewardship of the ICU. Proceeding on the basis that the respondents bear the onus on this issue, I make the following findings.

(a)    Ms O’Neill was told on the morning of 9 November what Ms Gilmore was planning to do. She regarded it as a matter for Ms Gilmore to decide, although if she had disagreed with the plan she would have said so. After looking at the Riskman reports, she told Ms Gilmore that she thought her decision was appropriate and offered to provide support at the meeting with Dr Avard. Ms O’Neill had no impact on the thought process that led Ms Gilmore to the decision, and the decision would have been the same if they had not discussed it at all.

(b)    Mr Peffer was told what Ms Gilmore had decided to do, probably before the decision was carried out. He was not asked for guidance and did not give any. If he had disagreed with Ms Gilmore’s decision and said so, that would have been influential; but he did not. Any views that he might have held about Dr Avard or her use of the RiskMan system were therefore irrelevant to the making of the decision.

(c)    Ms Smitham had some interactions with Ms Gilmore concerning an issue relating to Dr Avard’s management of the ICU around late October 2021, the content of which is left somewhat obscure by the email exchanges, and was consulted later about Dr Avard’s request on 17 November 2021 to return to work (the response to which is not pleaded as an adverse action). There is no basis to infer that she played any role in the decision on 9 November 2021 and the suggestion was not clearly put to Ms Gilmore. Ms Gilmore’s evidence that she alone made the decision is, so far as Ms Smitham is concerned, unchallenged.

127    The only relevant decision maker, therefore, is Ms Gilmore. She was unshaken in her evidence that her decision was motivated by a desire to ensure that CHS’s obligations to protect the welfare of Dr Avard, her colleagues and her patients were met. This evidence is supported by the contents of the 9 November letter, which is the only contemporaneous documentary evidence. It might be said that the letter should be treated with caution because Ms Gilmore would be unlikely to disclose reasoning that was proscribed by the FW Act. However, that argument entails a proposition that the letter was dishonest in that it deliberately concealed one of the real reasons why the action was being taken. I would not accept that proposition in the absence of a clear basis for concluding that it is the case.

128    The argument against acceptance of Ms Gilmore’s evidence involves a web of speculation. It involves, broadly, three elements.

(a)    First, it is suggested that there was a level of background concern within CHS management about Dr Avard’s pattern of complaints. In a later document prepared for Dr Kar, Ms Gilmore referred to a “pattern of escalation with the number of Riskman reports submitted by Dr Avard … predominantly related to resourcing and space” and to reporting that Dr Avard “often uses highly emotive and alarming language”. This, to my mind, is consistent with Ms Gilmore being concerned to find out from an independent expert whether there was cause for concern about Dr Avard’s health. Earlier, in late October 2021, an expression of frustration by Dr Avard in an email led to a somewhat cryptic observation by Ms Smitham to other officers that “I think we have an opportunity here”. Neither the import of this observation nor the action (if any) that it led to was identified. Then, on 8 November, Ms Smitham sought a meeting with Ms Gilmore and asked to see all of the Riskman reports generated by the ICU in the previous weeks. She expressed some “concerns about how Bronwyn is travelling” and mentioned an earlier episode that “potentially” involved bullying by Dr Avard. At worst, this suggests that Ms Smitham saw Dr Avard as a squeaky wheel or a problematic manager and wanted to consider whether she could be brought into line or removed from her role as director. There is no evidence that any such thoughts were shared with, or by, Ms Gilmore. Further, if the point leads anywhere, it suggests an additional or alternative reason for the steps taken on 9 November 2021 rather than supporting Dr Avard’s case as to why those steps were taken. It may also indicate that Ms Gilmore’s expressed concern as to whether Dr Avard was fit to continue in her role was based on more than the Riskman reports.

(b)    Secondly, after the event, Ms Gilmore refused a request by Dr Avard to return to work. Dr Avard had obtained a report from her own psychiatrist, Dr Proskurin, to the effect that she had suffered an acute stress reaction but was now fit to work. Ms Gilmore’s response at the time was that policies and procedures under the 2021 Agreement needed to be followed. The refusal to rescind the direction not to attend work, in itself, indicates no more than a degree of conviction that the direction was and remained appropriate; it is neutral as to what were the reasons for making the direction. Ms Gilmore gave evidence that she had consulted Ms Smitham (“the HR expert in these matters”) before responding. I was invited to conclude that Ms Gilmore’s response was disingenuous and that this indicated that her reasons for giving the IME direction and the direction not to attend work were also disingenuous. To my mind, the better explanation is that Ms Gilmore considered it preferable for the process that had been set in train to be completed before a decision was made about Dr Avard’s return to work. In cross-examination, she said that she did not regard the referral of Dr Avard to Dr Proskurin or the latter’s report as “independent”. This is not what she said in correspondence at the time; however, I do not think it follows that this was not part of her reasoning, or that the reasons she gave for the direction not to attend work were not genuine.

(c)    Thirdly, it is submitted that an inference that the IME direction and the direction not to attend work were motivated by Dr Avard having exercised a workplace right should be made because these actions did not make sense as a response to the matters that Dr Avard had revealed in the Riskman reports. There are two points to be made about this. First, reasonable minds may differ as to how seriously the statements made by Dr Avard in the Riskman reports should have been taken. The language that Dr Avard used was suggestive, at least on one view, that she might be struggling to cope with the pressures of leading and working in the ICU and that, in order to ensure her well being and the safety of patients, a medical report should be obtained. The lodging of four reports in a period of less than 30 minutes on 3 November 2021, the first and second recording upsetting clinical incidents three days earlier and the others reporting incidents from up to two weeks ago, might also have been thought to suggest that Dr Avard was unsettled by stress. Once that view was reached, the further decision to direct Dr Avard not to attend work was not so obviously disproportionate as to suggest other, concealed, motives. Secondly, if there were unspoken motivations in play, it does not follow that one of those motivations was the fact that Dr Avard had used the Riskman system to raise the issues that she raised. That would be a surprising reason for taking the actions that were taken. If Ms Gilmore’s mind was swayed by a factor other than genuine concern to protect Dr Avard and her patients, it is much more likely that that factor was connected to the issues mentioned in (a) above. The nature of the action taken therefore does not provide a basis for disbelieving Ms Gilmore’s evidence that that action was not motivated by Dr Avard’s use of the Riskman system.

The delay

129    How the alleged delay in organising the medical examination of Dr Avard by Dr Kar fits in to Dr Avard’s case is unclear. The FASOC at [30] pleads that CHS took adverse action against Dr Avard by (a) giving the IME direction, (b) giving the direction not to attend work and (c) “delaying referring” Dr Avard to an independent medical expert. However, there is no evidence of any identifiable act or omission constituting or causing that delay, let alone a conscious decision to delay the referral. That makes it impossible for the reasons for the delay to be tested in the manner required by ss 340 and 361. It could be said that the period for which Dr Avard had to wait before attending on Dr Kar (which can be described as “delay”) was a consequence of the decisions taken following the Riskman reports, but this is not sufficient to make it an “action” that was taken “because of” the exercise of a workplace right that inhered in the making of those reports.

130    Ms Gilmore gave evidence relating to the alleged delay in her affidavit of 3 July 2023 and in re-examination. In re-examination she said (and I accept) that matters in relation to injured workers, including IMEs, were managed centrally on behalf of the ACT by the CMTEDD and that decisions concerning the selection of Dr Kar and the booking of an appointment were made there. CMTEDD had a panel of independent medical examiners from which a suitable practitioner would be selected.

131    An appointment was made for Dr Avard to see Dr Kar on 11 January 2022. In the absence of specific evidence about this, I infer that this was based on inquiries as to his availability. The Christmas holidays were approaching and I do not think there is anything out of the ordinary about having to wait some weeks to see a specialist at this time. Following a request from Dr Avard’s solicitors for an earlier assessment, the appointment date was changed to 27 December 2021.

132    27 December was the date on which Dr Kar saw Dr Avard and he completed his report on the same day. It was a Monday, with Christmas Day having fallen the previous Saturday, and therefore a public holiday. While there is no evidence about Dr Kar’s attitude to Christian feast days or public holidays, the negotiation of an appointment in this period is not suggestive of lassitude (let alone deliberate delay) by anyone. It suggests that somebody in CMTEDD persuaded Dr Kar to see Dr Avard on a day when most people in Australia would not be at work. Overall, the time that elapsed between the IME direction and the appointment (around 6 weeks) does not appear to be remarkable in any way.

133    I therefore do not accept that there was any “delay” capable of constituting adverse action. The period of time for which Dr Avard was unable to practise her skills was a consequence of the direction not to attend work which, in principle, could have resulted in that action being relevantly “adverse” if it had persisted for long enough to be professionally disadvantageous; however, I have concluded at [113] above that that was not the case. The length of that period could potentially be relevant to relief in the event that the IME direction and the direction not to attend work involved breaches of civil penalty provisions of the FW Act. However, I have found above that those directions did not contravene s 340.

Conclusions on the first “adverse action”

134    The action, comprising the IME direction and the direction not to attend work, was not “adverse” in the relevant sense. If it was, I am satisfied that Dr Avard’s exercise of a workplace right was not a substantial and operative reason for the decision to take the action. The delay (if there was any) in organising the IME does not add anything.

Second “adverse action”: commencement of the first investigation and the first suspension decision

Adverse action?

135    The respondents submit that these actions were not relevantly adverse because:

(a)    the commencement of the investigation did not involve any adverse finding against Dr Avard (rather it commenced a process in which she would have the opportunity to be vindicated) and there was reasonable cause to commence the investigation; and

(b)    the suspension decision was never carried into effect.

136    As to the first of these points, the commencement of a misconduct investigation was clearly detrimental to Dr Avard even though no adverse finding had been made and no sanction imposed. Being under investigation is stressful and a drain on a person’s time, financial resources or both. It is often damaging to a person’s reputation. Repeated investigations can be an effective tool of harassment. The existence of a proper basis to commence the investigation is relevant to an assessment of whether or not the action was taken because of the exercise of a workplace right; it is not relevant at the anterior stage of considering whether the action was “adverse”. That question is objective.

137    As to the second point, in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 at [26]-[27] Tracey J held that a mere announcement of intended action, not acted upon, did not “injure an employee” or “alter the position of an employee to the employee’s detriment” within the meaning of a predecessor provision to s 340 (s 298K of the Workplace Relations Act 1996 (Cth)). The correctness of that conclusion does not appear to have been doubted and in my opinion it is correct. Here, Ms O’Neill announced an intention to suspend Dr Avard from duty in the 14 January letter and invited her to make submissions as to why that should not happen. Before any suspension came into effect, a solution was found whereby Dr Avard would continue a period of long service leave (which had already been approved) until 29 July 2022. Other events intervened before the end of that period of leave. The first suspension decision did not in itself amount to “action”; nor did it result in any action that was adverse to Dr Avard in the relevant sense.

138    The first suspension decision can therefore be put to one side. However, the observations that follow in respect to the reasons for the commencement of the first investigation also apply to it.

Was the action taken because of Dr Avard’s exercise of a workplace right?

139    Ms O’Neill gave evidence that around 13 January 2022 she considered and agreed with the contents of a document entitled “Preliminary Assessment”. The document (the preliminary assessment document) is not signed or dated.

140    The preliminary assessment document uses a prepared form. It begins by identifying a “clinical incident” on 31 October 2021 and an “allegation” that “Dr Avard breached her duty of care to a patient and CHS by failing to provide a safe patient experience on 31/10/21”. It summarises the incident, reported by Dr Avard in one of the Riskman reports, in which she left a patient’s room to obtain drugs that were needed and then “did not feel I could return to the room”. The document then says:

This incident whereby Dr Avard has left a patient, placed the patient, staff and CHS at an unacceptable level of risk both clinically and reputationally and importantly has highlighted significant concerns related to Dr Avard, her behaviours and her ability to effectively lead the ICU team. Further, it seemingly indicates a lack of insight that would be expected of a Senior Clinical Director.

141    The preliminary assessment document then refers to the discussions between Dr Avard and Ms Gilmore in November 2021, the IME referral and some of the conclusions expressed by Dr Kar in his report. The “assessor’s decision” was:

The IME conducted by Dr Kar indicates no underlying mental health concerns for Dr Avard, which would provide explanation for Dr Avard's conduct on 31/10/21 nor her workplace behaviours. As such, it is reasonable to conclude that the issues at hand are performance / misconduct focused. Based on review of the available facts on this matter, and the expectations of senior leaders in completing their duties, formal investigation is an appropriate next step.

142    In a field in the document headed “Resolution and/or next steps”, the option “Investigation” is selected.

143    Ms O’Neill did not identify the author of the preliminary assessment document in her affidavit. In cross-examination she revealed that she had undertaken the preliminary assessment and staff in the People and Culture team had documented it using the appropriate form. She was not challenged on this and I accept it. It probably explains why the document was not signed, even though (as shown by a document called for during the hearing and tendered) it was sent to Ms O’Neill under cover of an email from Mr Jim Tosh (an employee in People and Culture) along with a draft of the 14 January letter. One would expect the document to have been signed if somebody else had written it for Ms O’Neill to consider. The result is that the preliminary assessment document is a record of Ms O’Neill’s thought process rather than a recommendation put to her by somebody else.

144    Ms O’Neill’s affidavit also does not deal with whether she was the only person involved in making the decision to commence a misconduct investigation. It says, cryptically, that around 13 January 2022 “a preliminary assessment was conducted”. In cross-examination she revealed that she had conversations with Mr Peffer and Ms Smitham. Her answers to questions on this topic were somewhat elliptical, but the picture that emerged was as follows.

(a)    Ms O’Neill sought advice from Ms Smitham, “in her role as the head of People and Culture”, about “the options”. She denied having discussed those options in any specific detail.

(b)    Ms O’Neill discussed her assessment of the situation and her view of “the need to do something fairly definitive about understanding the full extent of what had happened” with Mr Peffer. However, she was clear that she was not seeking his guidance but informing him of her likely decision. The conversation took place after she had undertaken the preliminary assessment.

145    Mr Peffer, as noted above, did not give evidence. Ms Smitham’s affidavit did not canvass any role she might have had in decisions made in January 2022 and she was not taken to this in cross-examination.

146    I accept that Ms O’Neill was the sole relevant decision maker in relation to the commencement of the first investigation and (if relevant) the first suspension decision. She probably took advice from Ms Smitham about what steps were available under the relevant enterprise agreement and alerted Mr Peffer to what she was intending to do. There are also emails from 10 and 11 January 2022 (none of which went to Ms O’Neill) which indicate that Ms Smitham was taking an interest in the communications with Dr Avard and her solicitors. However, neither Ms Smitham nor Mr Peffer made such a contribution as to require inquiry into whether their thinking was affected by Dr Avard having exercised a workplace right.

147    On the face of the documents, Ms O’Neill’s reason for deciding to commence the investigation was a concern as to what had happened on 31 October 2021 and whether it involved clinical misconduct by Dr Avard. Her concern was apparently heightened by two things: “significant concerns” relating to Dr Avard’s behaviour and her ability to lead the ICU; and the passages in Dr Kar’s report indicating that Dr Avard’s behaviour was not the result of any psychiatric condition or trauma. The making of a Riskman report by Dr Avard was the means by which the incident had come to light, and was causative in that sense, but the method of communication was not being treated by Ms O’Neill as a reason for commencing the investigation.

148    Nothing in the surrounding circumstances makes the reasoning recorded in the documents implausible. In particular, I do not accept Dr Avard’s submission that the allegation of misconduct was “remarkably weak”. A report made by Dr Avard herself suggested that she had left the bedside of a dying patient and not returned to the room because she found the atmosphere difficult to deal with. This, on the face of it, was capable of suggesting at least sub-optimal patient care. The issue might well have been something that could be cleared up quickly by getting further information from Dr Avard or from other practitioners (as proved, in effect, to be the case), but that does not mean there was anything irrational or improper about commencing a formal investigation. Further, if there was some motivation extraneous to the allegation set out in the preliminary assessment letter, it is most likely that it lay in the “significant concerns” about Dr Avard which are referred to (albeit not elaborated upon) in the preliminary assessment document. With these things in play, it is simply unlikely that the fact that Dr Avard had used the Riskman system to raise complaints played any substantive role in Ms O’Neill’s thinking.

149    Nor did anything that emerged in the cross-examination of Ms O’Neill alter the position. She affirmed that she was concerned about the care provided to the patient by Dr Avard. She was essentially pressed to agree that her concerns were overblown, misplaced or not genuine, but did not do so. Ms O’Neill sometimes had difficulty answering questions clearly and directly, but this was understandable in the face of what were occasionally convoluted questions in a courtroom setting. It did not lead me to doubt the honesty of her evidence.

150    As noted earlier, to the extent that the commencement of a formal investigation might have been an over-reaction to the information concerning the incident on 31 October 2021 considered in isolation, the natural inference is that Ms O’Neill was influenced by pre-existing concerns about the performance and behaviour of Dr Avard. What these concerns were and whether they were well founded does not need to be determined. The point is that they had nothing to do with Dr Avard’s use of the Riskman system.

151    I am satisfied that the “action” constituted by the commencement of the first investigation (and the suspension decision if it was relevant) was not motivated to any material extent by Dr Avard’s exercise of a workplace right.

Third “adverse action”: the return refusal

152    In late October 2021 Dr Avard had applied for a period of long service leave from 17 January 2022 to 31 July 2022. She asked for this leave to be on half pay. She intended to use this time to work on a PhD. This leave was approved and commenced a few days after the 14 January letter was sent to Dr Avard. It will be recalled that, after initially proposing to suspend Dr Avard from duty and reverse this grant of leave, Ms O’Neill was persuaded that Dr Avard should remain on leave. On 24 February 2022 Dr Avard asked to return to work on 28 March 2022. This request was refused.

153    In refusing to allow an early return by Dr Avard, Ms O’Neill retained the status quo in terms of Dr Avard’s employment. She declined to make a change to that position requested by Dr Avard.

154    Dr Avard relies on reasoning of North J in Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910 (at [76]–[86]), the substance of which was later described by Katzmann J as being that “the disappointment of an expectation of reemployment, even where there was no legal right to re-employment, was an alteration of an employee’s position to his prejudice” (Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [51]). That may well be right in a case where there is an understanding that re-employment will occur and that understanding is departed from by the employer. The same considerations do not apply where a period of leave is in effect, with no reason to expect anything other than that leave will continue until the end of the period, and the effect of the employer’s decision is to maintain the status quo in both legal and practical terms. Evidence that CHS had sometimes agreed to employees’ requests to return early from leave is not sufficient to point to an expectation that that would be allowed. Refusal to allow Dr Avard to change the arrangement at her option did not constitute an alteration of her position to her prejudice. Nor was she thereby injured in her employment. This is the case even if Dr Avard had reasons to welcome a return to work, including medical advice that it would be beneficial for her. The return refusal was not “adverse action” as defined by s 342.

155    It was not suggested that the decision not to allow Dr Avard’s early return was made by anybody other than Ms O’Neill.

156    Ms O’Neill’s letter refusing the request to return early made three points:

(a)    the Unit Director role had been backfilled and arrangements were in place to backfill Dr Avard’s clinical work;

(b)    there was no basis “operationally” to amend the approved leave; and

(c)    if Dr Avard returned from leave it would be necessary to revisit the decision not to suspend her.

157    The first of these points was true as at the date of the letter, but the appointment of Dr Singh to act as Clinical Director for the duration of Dr Avard’s leave had only been announced to staff the previous day. Up to that point, there had been a recruitment process in train; however no reason has been suggested as to why that process could not have been stopped if Dr Avard was to be allowed to return (or suspended while a decision was made on her request). Ms O’Neill accepted that these things were possible. Ms O’Neill denied in cross-examination that the response to Dr Avard’s request had been delayed until after Dr Singh’s appointment because, in effect, that appointment provided a basis to refuse the request. I am inclined to accept that denial because there is nothing in the documents that suggests either deliberate delay or recognition that a reason to refuse the request was about to appear.

158    As to the second point, Ms O’Neill struggled in cross-examination to explain any real “operational” difficulties in accommodating Dr Avard’s return. However, I accept that there would have been inconvenience involved in re-organising rosters, and disappointment for staff who were expecting to be acting in positions above their normal level for a period of months. It was not unreasonable to take this into account. This weighs against a conclusion that Ms O’Neill’s stated reasons were bogus and the real reason was (or included) Dr Avard’s exercise of a workplace right.

159    The third point is important. In January 2022, Ms O’Neill had commenced a formal investigation into possible misconduct by Dr Avard and had planned to suspend her from work until the investigation was completed. She evidently believed at that time that Dr Avard’s presence in the workplace, while the investigation was in train, was undesirable. She was persuaded not to go through with the suspension decision on the basis that Dr Avard was on leave (and preferred to remain on long service leave rather than be suspended). There is nothing to indicate that her views had changed in that respect by early March. This was a cogent reason not to wish to entertain a request to return early from leave. It suggests again that, even if Ms O’Neill’s (other) stated reasons were unconvincing or disingenuous, the likely explanation is that she had concerns about Dr Avard’s behaviour and wanted to keep her out of the workplace while those concerns were investigated. A vendetta arising from Dr Avard’s use of the Riskman system is an unlikely explanation.

160    I would therefore find, if the return refusal did constitute adverse action, that it was not undertaken because of Dr Avard’s exercise of a workplace right.

Fourth “adverse action”: commencement of the Deegan Report investigation

161    The decision by Ms O’Neill to commence the Deegan Report investigation was effectively rescinded by the action that Mr Peffer took on 13 July 2022, appointing Ms Zagari to consider the matter afresh. Ms O’Neill’s decision was therefore not carried into effect. Dr Avard was not suspended from duty (she was still on leave at this time and nothing changed in that regard); nor was she put to the trouble and stress of responding to questions from an investigator as a consequence of this decision.

162    In effect, Ms O’Neill’s decision was reversed before being carried out as a result of successful advocacy on behalf of Dr Avard. In these circumstances, the claim that it constituted “adverse action”, resulting in liability for a penalty and compensation under the FW Act, is not maintainable.

163    If relevant, I would accept the evidence of Ms O’Neill that her reason for commencing the Deegan Report investigation was the seriousness of the misconduct by Dr Avard that she considered, having regard to the contents of the Deegan Report, might have occurred. Neither the Riskman reports nor the making of the CEO allegations was an operative cause.

164    Dr Avard commenced this proceeding on 13 July 2022. She amended her statement of claim the next day, and again on 1 August 2022. The first of these amendments added a complaint concerning Ms Zagari’s decision on 13 July to commence an investigation of whether Dr Avard had made improper Riskman reports. However, neither that amendment nor the pleading on which Dr Avard ultimately relied (the FASOC) identified Ms Zagari’s decision to commence the second investigation as an adverse action. There was, accordingly, no allegation pleaded to the effect that this decision was adverse to Dr Avard or that it was made for a proscribed reason under the FW Act. Nor were any submissions advanced in writing to this effect.

165    The FASOC appears to characterise the 13 July letter (signed by Ms Zagari) as an exercise in particularising the allegations that would be pursued in the investigation that had been commenced by Ms O’Neill. In the light of Mr Peffer’s letter stating that he had appointed Ms Zagari as “a new delegate to review the Deegan Report and assess whether it gives rise to allegations of misconduct”, and Ms Zagari’s evidence that she approached the task “anew”, that is clearly not the correct characterisation. Rather than being given particularity, the Deegan Review report was being buried (as a response to allegations of bias against its instigator, Ms O’Neill) and the preliminary assessment process done again.

166    In a case run on pleadings, this is an irremediable problem. Dr Avard has advanced no case in relation to the decision that launched the second investigation—that being the only investigation into the Deegan Report allegations that went anywhere—and has not required the respondents to prove the reasons why that decision was made.

167    I add that, if it were necessary, I would accept Ms Zagari’s evidence that she concluded that the allegations arising from the Deegan Report warranted investigation “due to the serious observations made in the Deegan Report regarding Dr Avard’s conduct, and its potential negative impact on workplace safety, patient safety and in the dealings between CHS and DonateLife”.

Fifth adverse action: the investigation of the Riskman reports and the second suspension decision

Commencement of the investigation

168    For reasons explored above at [136], I consider that the commencement of a formal investigation into Dr Avard’s conduct was an “adverse” action.

169    The relevant decision maker was Ms Zagari. She gave evidence that the decision to commence a misconduct investigation was based on what she described as Dr Avard’s “own admissions” in the Kar report. She referred to passages in the Kar report recording Dr Avard as having said (among other things) that she had “over described things”; submitted the reports “in an emotional way”; said that she was “angry with my boss” and “it wasn’t an injury, it was a complaint”. Ms Zagari said that the Riskman reports had had a “tangible impact” on CHS, resulting in expense and the misallocation of resources, and she therefore considered that further investigation was required.

170    It was suggested by Dr Avard in submissions that others may have been involved in the decision to an extent that made their thought processes relevant. Those others were Mr Peffer and an unknown person or persons from the People and Culture team. I reject this submission.

(a)    There is nothing in the evidence to indicate that Mr Peffer played a role. It is apparent from Ms Zagari’s affidavit that a conversation occurred between the two of them, but she deposes only that Mr Peffer told her why he was going to appoint her as a delegate (ie, that allegations had been made against Ms O’Neill and Ms Gilmore). In cross-examination she clarified that Mr Peffer was appointing her because the allegations against Ms O’Neill and Ms Gilmore made it inappropriate for them to make decisions regarding Dr Avard. Her affidavit places the conversation around 13 July 2022, but she revised this in oral evidence in chief by saying it occurred some days prior, probably on 6 July. These exchanges and the questions Ms Zagari was asked about them seem to have related only to the issues arising from the Deegan Report. The issues relating to the Riskman reports were referred to Ms Zagari by People and Culture, and Ms Zagari was not aware who had made the initial allegation. During their conversation on 6 July 2022 Mr Peffer had said that there was another issue concerning possible misconduct by Dr Avard which Ms Zagari would be required to consider, but the details of the issue were not discussed. The cross-examiner returned to this last point at least once and Ms Zagari’s evidence did not change. I accept it. What follows is that Ms Zagari did not discuss any issues arising from the Riskman reports with Mr Peffer.

(b)    The suggestion that other unspecified persons were involved in the decision is based on two pieces of correspondence after the event.

(i)    The first is an exchange of text messages between Ms Zagari and Mr White of People and Culture on 25 July 2022. Mr White asked Ms Zagari if she was available to “sign another Avard-related letter”, explaining that “[we] are keeping the delegate the same for this letter”. The inference said to arise was that “persons behind-the-scenes were making the decision, or at least making an indispensable/material contribution”. The text exchange may indicate that Mr White anticipated Ms Zagari agreeing to sign the letter he was about to send to her (which would not be surprising given, as emerged in cross-examination, that Ms Zagari had asked for this letter to be prepared). It says nothing about him (or any other person) playing a role in the decision made on 13 July 2022. Ms Zagari was asked about Mr White’s role in providing her with material about the Riskman reports; but it was not put to her that he had briefed or advised her on the matter, or had any influence on her decision.

(ii)    The second piece of correspondence is an email from Ms Zagari to Ms Smitham and Mr White, forwarding to them a letter that she had received from Dr Avard’s solicitors. She asked them to “review, consider and advise and consult GSO as required”. This indicates that, completely unsurprisingly, Ms Zagari (as Deputy CEO of CHS) was in the habit of referring incoming correspondence to others in the organisation for consideration. It says nothing about her decision on 13 July.

171    Turning to Ms Zagari’s decision, the exercises of workplace rights that are relied on are the making of the Riskman reports and the CEO allegations.

172    The Riskman reports were, of course, the subject matter of the investigation that was proposed. In that sense, the investigation was necessarily commenced because Dr Avard had made the reports. However, I do not think that is sufficient to answer the question whether the “action” (commencing the second investigation) was “taken” against Dr Avard “because” she had exercised a workplace right. Section 340 should not be read as insulating any conduct purporting to be in the exercise of a workplace right from the consequences that ordinarily follow if the conduct is unlawful or constitutes a breach of a term of the employment relationship (cf BHP Coal at [92] (Gageler J)). Another way of putting the point is that the concept of exercising a “workplace right” does not extend to conduct that contravenes relevant rules or the provisions of an enterprise agreement. For this reason, commencing an investigation into whether Dr Avard’s Riskman reports constituted misconduct (because they involved a misuse or abuse of the system) was not, ipso facto, a contravention of s 340. It would amount to a contravention only if the relevant decision maker did not hold a genuine concern about possible misuse or abuse of the Riskman system, and the inquiry was no more than an attempt to harass or penalise Dr Avard for having used that system.

173    What the respondents must disprove is a proposition that an operative cause for Ms Zagari’s decision was Dr Avard’s use of the Riskman system per se (as distinct from a concern as to whether her use of the system was improper). Ms Zagari’s evidence is against that proposition. I did not (despite the urgings of counsel for Dr Avard) find her an unsatisfactory witness. Although her affidavit evidence required some correction and expansion in the witness box, I did not regard this as a change of position that called into question her honesty or reliability.

174    Ms Zagari’s evidence is also against the proposition that the CEO allegations constituted an operative cause of her decision. She was aware at least in a general sense that she had been asked to make the decision because Dr Avard had made allegations against other officers, and was thus conscious of the need for impartiality. Nothing in the documentary record or her cross-examination leads me to reject her evidence.

175    The investigation ultimately did not find any misconduct on the part of Dr Avard. Dr Avard submitted that the allegations were particularly weak, and that I should infer from this that concern expressed about possible misconduct was not genuine. I am not prepared to draw this inference. The terms in which the Commissioner conveyed the outcome (set out at [83] above) do not suggest any criticism of the decision to commence the investigation.

176    Comparison of the contents of the Riskman reports with what Dr Avard told Dr Kar indicated that (i) she had claimed in those reports to be traumatised and affected psychologically when she was not; and (ii) she had used the reports to complain about resource levels and the behaviour of others towards her rather than to report incidents that caused injury or a risk of injury. The view might well have been taken that these were relatively minor matters that could be dealt with by counselling. However, the decision was not so bizarre as to lead to an inference that the reasons given in Ms Zagari’s evidence were not the real reasons.

177    I therefore find that the respondents have met the onus in s 361 of the FW Act.

Suspension decision

178    As with the earlier suspension decision, Ms Zagari’s letter of 13 July 2022 said that she had decided to suspend Dr Avard from duty but invited submissions from her. The relevant parts of her letter said:

I have … decided to suspend you from duty with pay, in accordance with cl 122 of the Agreement.

…

Prior to the making of a final decision regarding the continuation of your suspension from duty, I am providing you seven days from the receipt of this correspondence to provide a written response as to why you should not continue to be suspended from duty with pay …

Any response you provide relating to this proposed suspension may be included as part of future investigative processes. I will write to you with my decision regarding the continuation of your suspension …

(Emphasis added.)

179    These formulations lead to a lack of clarity as to whether Dr Avard was being suspended immediately (with a prospect of reversal of that decision) or suspension was being mooted as a future step subject to what Dr Avard might say. It will be recalled that at this time Dr Avard was already absent from duty on long service leave (at half pay) and was not due to return until the end of July. The lack of clarity is not important, however, because two days later CHS’s solicitors agreed to “revoke” the suspension pending the outcome of an interlocutory application. CHS never sought to revive the suspension decision; instead, it moved to transfer Dr Avard to another position (which is the subject of a separate complaint).

180    The suspension decision was therefore never carried into effect. For reasons outlined at [137] above, it did not constitute adverse action.

181    If that conclusion were wrong, I would:

(a)    accept that Ms Zagari was the only decision maker, for the reasons outlined at [170] above; and

(b)    accept her evidence that she regarded suspension of Dr Avard as an appropriate measure in the light of the pending investigation into allegations arising from the Deegan report and the seriousness of those allegations.

182    It was entirely rational in the circumstances to take steps that would prevent Dr Avard returning to work in the ICU while the investigation was in train. It was on the cards that staff in the ICU would be important witnesses in the investigation; and, if the matters raised in the Deegan Report concerning Dr Avard’s behaviour had substance, there was a possibility of those people being distressed by her return and their evidence being compromised.

Sixth adverse action: the transfer decision

Adverse action?

183    The transfer decision, as pleaded (at FASOC [82H]-[82I]), was the decision on 28 July 2022 to transfer Dr Avard to the position of Career Medical Officer at Calvary Hospital with effect from 8 August 2022. Dr Avard, according to her evidence, never commenced in that role. Instead, following negotiations, Dr Avard was transferred to the position of Advanced Trainee in Palliative Care at Calvary. The adverse action that is pleaded is thus a decision that was not carried out. The particulars as to why the action was relevantly adverse (FASOC [82I]) related to the position of Career Medical Officer, which is a position that Dr Avard never took up.

184    The position to which Dr Avard was eventually transferred (and where she worked until July 2023) was the result of negotiations between her solicitors and the solicitors for the respondents, by which an interlocutory application in this proceeding was resolved. That application sought an order “until further order” that the transfer decision be “revoked”, or alternatively an interim order restraining CHS from implementing the decision. Revocation of the original transfer decision, and its replacement by a transfer to the Advanced Trainee position, was an arrangement to which Dr Avard consented in the context of a negotiated settlement. I have considered whether this is a reason for holding that Dr Avard cannot now complain about either the original transfer decision or the transfer that eventually resulted from it. However, the respondents do not advance that position. Because the application that was compromised was (or at least purported to be) interlocutory, it may be that in reaching their agreement the parties were reserving the right to argue later as to whether the outcome was consistent with s 340.

185    I have decided, with some hesitation, that the failure to update Dr Avard’s pleading to take account of her transfer to a different position should not be regarded as a complete answer to this part of her case. Dr Avard’s written opening submissions, filed on 29 August 2023, made reference to the negotiations and to the “Amended Transfer Decision” that resulted in Dr Avard taking up what was submitted to be a very junior position. The Respondents’ opening submissions (filed a month later) did not complain that this was a new point. I have concluded that Dr Avard should be permitted to argue that the transfer decision was an adverse action by reference to the result that it eventually had (ie, her transfer to the Advanced Trainee position). It would not be open to her to argue (and I did not understand her ultimately to argue) that there was a further adverse action consisting in a further transfer decision made later in August 2022.

186    Considered on this footing, the suspension decision amounted to adverse action. Its (eventual) result was that Dr Avard had, for nearly a year, to work in a position of lower status than her customary role that did not use her specialist skills. It altered her position to her detriment and was injurious to her in her employment.

187    A further point that might be made about the transfer decision is that it was an aspect of the revocation of the suspension decision that had preceded it. In effect, Ms Zagari was responding to representations made on behalf of Dr Avard by offering to transfer her to another position rather than suspending her from duty altogether. Viewed in that way, the transfer decision was, if anything, beneficial to Dr Avard. However, the respondents have not put their case in this way. In the light of the conclusions I reach below, I do not need to consider this issue further.

Decision maker

188    The respondents’ case is that the decision maker was Ms Zagari. Dr Avard submits that the involvement of other decision makers has not been disproved.

189    First, it is put that the transfer decision was closely related to the decision (made around two weeks earlier) to commence an investigation. This is correct. Had I found that persons other than Ms Zagari were instrumental to the earlier decision, I would very likely make the same finding in relation to the suspension decision. However, I have not made that finding.

190    Secondly, it was submitted that the process was being “driven” by the People and Culture team. Reference is made to the exchange with Mr White discussed earlier and to evidence of Ms Zagari in which she described interchanges with People and Culture after her letter of 4 August. As to the first of these points, I have observed above that the exchange with Mr White falls a long way short of suggesting that People and Culture was exerting any control over Ms Zagari’s consideration of relevant issues. As to the second point, Ms Zagari was clearly describing events in August 2022, after the transfer decision was made (but while its consequences were being worked out). The fact that she was being advised about negotiations with Dr Avard’s representatives and consulted as to whether she regarded the outcome as acceptable is not in any way inconsistent with her having been the sole relevant decision maker in the original transfer decision.

191    Thirdly, there is evidence that Ms O’Neill made some minor edits to a draft letter on 27 July 2022 and that Ms Zagari discussed the contents of a draft letter with Ms O’Neill, Mr White and Ms Smitham around that time. For the Deputy Chief Executive to seek and receive assistance in the drafting of correspondence is completely unremarkable. It does not support a suggestion that Ms Zagari was not the sole decision maker in making the transfer decision.

192    Fourthly, reference is made to emails between staff in People and Culture concerning the possible revocation of the suspension decision and relaying concerns from some staff about Dr Avard returning to the ICU. One problem with this submission is that, while the emails are annexed to Ms Zagari’s affidavit, none of them was addressed to her (and she was not taken to them in cross-examination). She deposes to having been “advised” of “concerns” held by some staff and annexes the emails as examples. To the extent that the contents of these emails were relayed to Ms Zagari, this amounted to staff seeking to make her aware of issues that might arise if the suspension decision were revisited. Receiving information about the views and concerns of those who are commonly referred to as “stakeholders” is a familiar part of decision making which does not suggest that the decision itself was the result of a “collaborative approach”.

193    I am therefore satisfied that the only person whose reasoning process is relevant is Ms Zagari. I note here that I am presently concerned with the decision made on 28 July 2022 to transfer Dr Avard to another position rather than suspending her from duty. It seems highly likely that Ms Zagari had assistance from others within CHS on questions as to whether transfer was an available step and what positions might be suitable. However, I am satisfied that she was the only relevant decision maker as to whether transferring Dr Avard to a different position was the appropriate solution to the situation. It is not irrelevant here that the transfer decision was in substance a recalibration of the suspension decision, which I am satisfied was made by Ms Zagari. It was a different and arguably less burdensome means of securing Dr Avard’s separation from the ICU while the investigations into her conduct were taking place.

Reasoning process

194    The fact that the transfer decision was in substance a recalibration of the suspension decision, and made by the same decision maker, makes it easier for me to accept that the substantial motivation for it was the same. Having accepted Ms Zagari’s evidence in relation to the former decision, I also accept her evidence as follows.

I determined the transfer to be in the interests of the Directorate, and the reasons were directed to the serious nature of the Deegan Report Allegations and Improper RiskMan Report Allegation against Dr Avard. ln particular, CHS maintained the view that Dr Avard posed a risk to the safety of other CHS employees and that the integrity of the investigation process may be compromised if Dr Avard returned to the workplace (being, The Canberra Hospital) and interacted with persons who had made allegations against Dr Avard and those who were, or may be, concerned that Dr Avard may apply pressure upon them as witnesses or potential witnesses in the investigation.

195    I have observed above that the view that Dr Avard’s presence in (or for that matter near) the ICU posed a risk to the integrity of the evidence of potential witnesses in the investigation—and to the well being of some staff in the ICU, if allegations contained in the Deegan Report had substance—was a rational view to take. That did not change in the fortnight between the suspension decision and the transfer decision.

196    If the transfer decision constituted adverse action, the respondents have satisfied their onus of proving that it was not taken because of Dr Avard’s exercise of her workplace rights.

Seventh adverse action: the staff email

197    The FASOC at [82N] sets out particulars of how the staff email is alleged to have injured Dr Avard in her employment and/or altered her position to her detriment.

(a)    Particular (a) claims that the staff email expressly or impliedly suggested certain things. I deal with the particular alleged suggestions below. I observe here that it is not apparent how, in itself, making a statement about an employee is capable of injuring the employee in their employment or altering their position. These consequences only occur if the statement has some identifiable effect on the employee or the behaviour of others. Dr Avard has not sued for defamation.

(b)    Particular (b) alleges that the staff email (i) caused Dr Avard embarrassment, hurt and humiliation and (ii) prejudiced her reputation among staff members of the ICU and Canberra Hospital. As I understand the argument, these effects are said to flow from the adverse suggestions or imputations contained in the staff email.

198    I have reached the following conclusions in relation to the suggestions alleged to be made by the staff email (the text of which is set out at [77] above):

(a)    [The Territory] had made a final decision to transfer the Applicant out of the ICU or otherwise prevent her from working in the ICU, when the [Territory] had not informed [Dr Avard] that such a decision was made: When the staff email was sent, Ms Zagari had made a decision to suspend Dr Avard from duty and then agreed to consider transfer to another role as an alternative. While a final decision between these options (and the position, if any, to which Dr Avard would be transferred) had not been notified, there is nothing to suggest that Ms Zagari was entertaining the suggestion of neither suspending nor transferring Dr Avard. The staff email was not misleading in this respect.

(b)    [The Territory] was investigating [Dr Avard] for misconduct: The staff email refers to an investigation, and any reader not already acquainted with the situation would probably infer that it was an investigation into possible misconduct. This was a widely known fact and was unlikely to have come as news to any reader of the staff email. On 13 and 14 July 2022 articles had appeared in local news media featuring a statement issued by Dr Avard detailing her tribulations and accusing CHS of seeking to penalise her as a whistleblower. Before then, several workers in the ICU had participated in the Deegan review and some had made allegations of bullying, ostracism and improper conduct against Dr Avard; they (and probably others as well) would not have been surprised to learn that those allegations were the subject of an investigation. Dr Avard denied having spoken to any journalists but said that she had engaged a media company to deal with questions from the media. She also denied having approached (or asked the company that she had retained to approach) any media organisations to publicise her story. I found this evidence difficult to accept, given that (i) somebody had gone to the trouble of preparing a statement to go out in Dr Avard’s name, (ii) there is no indication of why media outlets would have been interested in the issue without being alerted to it by Dr Avard’s statement, and (iii) some of the articles carried a photograph of Dr Avard with the caption “Picture: Supplied”. I find that it was through a conscious decision of Dr Avard that the steps taken against her (including relevantly the second investigation and the suspension decision) became public knowledge. This makes it difficult to complain that disclosure of the fact to staff in the ICU was adverse to her.

(c)    [Dr Avard] was guilty of misconduct: The staff email clearly did not say that Dr Avard was guilty of misconduct. Nor did such a proposition emerge by implication from the statement that steps were being taken to prevent Dr Avard’s return to the ICU until the investigation was completed.

(d)    [The Territory] did not want [Dr Avard] working in the ICU: This was also not stated by the terms of the staff email and did not arise from a fair reading of the email. It was made tolerably clear that managers in CHS were seeking to prevent Dr Avard’s return to the ICU “pending the outcome of the investigation”. This conveyed nothing as to whether those managers were opposed to Dr Avard returning to the ICU after the investigation was complete.

(e)    Staff do not want to meet with [Dr Avard]: Reading between the lines, some recipients of the email might have surmised that there were staff members in the ICU who were anxious about meeting with Dr Avard. People might have made their own guesses as to why this would be the case; but these would have been based on their understandings of the history up to and including the Deegan review, rather than anything said in the staff email. The email did not suggest that all or even most staff in the ICU were unwilling to meet with Dr Avard; it merely sought to assure any who were unwilling that such meetings were optional.

199    The staff email did not convey anything adverse to Dr Avard except for the (already widely known) information that she was the subject of an investigation. It would not have changed anyone’s opinion about Dr Avard’s character, clinical skills or merits as a manager. It does seem to have energised staff in the ICU who were supportive of her: annexed to her affidavit was an email chain in which several ICU staff, responding to the staff email, contributed expressions of support for her and disapproval of her treatment by senior management.

200    The staff email was therefore not capable of causing the harm to Dr Avard that is alleged in FASOC [82N]. I reject the contention that it constituted “adverse action”.

201    If that conclusion were wrong I would hold that, to the extent that the staff email caused Dr Avard embarrassment, hurt and humiliation, that was not injury of a kind that was capable of making the staff email “adverse”, for the reasons outlined at [116]–[117] above. I would accept, however, that the lowering of Dr Avard’s reputation among colleagues was an injury to her “in her employment” and that the staff email therefore constituted adverse action. If that were the correct conclusion, it would be necessary to consider the reasons why the action was taken. I discuss that issue next.

202    It is not in doubt that the staff email was composed by Ms Smitham. It was sent by her to Dr Manoj Singh (the acting director) and two other senior staff members (Rosalie Alderson and Tina Xu), and it was not put to her that anybody else had a role in drafting it. It was then forwarded by two of the recipients, Ms Alderson and Ms Xu, to other staff in the ICU.

203    It is submitted by Dr Avard that the respondents have not satisfied the onus under s 361 in relation to the staff email because Ms Alderson and Ms Xu have not given evidence. The adverse action pleaded in FASOC [82M]–[82N] consists of the sending of the email to the leadership team (by Ms Smitham) and the forwarding of the email by Ms Alderson and Ms Xu. That combination of emails is the action in relation to which the respondents bear the onus of proof under s 361. The absence of any evidence from Ms Alderson and Ms Xu is therefore, prima facie, a problem for the respondents.

204    However, the fact that a person is involved (or even integral) in carrying out a decision does not make that person’s thought process central to whether the decision was made (or the “action” taken) for a prescribed reason. If an employee’s remuneration is reduced and adverse action is alleged, it does not follow that evidence must be called from the clerk who made the changes in the employer’s payroll system. Here, it is obvious from the terms of the email (and Ms Smitham confirmed in her evidence) that she wrote it and sent it to senior ICU staff with the intention that it would be distributed to other ICU staff. In her message forwarding the email to other staff, Ms Xu said: “just spoke to Manoj on the phone, forwarding the email from P&C”. Ms Alderson similarly said “please see email below from Kalena Smitham”. It is reasonably clear that Ms Alderson and Ms Xu understood that Ms Smitham wanted her message to be spread to all staff members in the ICU and complied with that wish. They did not exercise independent decision-making power; they were no more than the conduit through whom the message was spread. Each, in her own way, was making clear that the message came from Ms Smitham and not from her. Ms Smitham is therefore the only relevant decision maker.

205    It was then submitted that I should not accept Ms Smitham’s evidence that she sent the staff email solely to address concerns raised with her about staff needing to have dealings with Dr Avard (including some who said that she had already attempted to organise meetings with them). The bases for the submission are, in short, that there was objectively no good reason to send the staff email, and that the last paragraph of the email could have been differently expressed. I reject both of these arguments.

(a)    As to the first point, Dr Avard submits that there was no reason why she should not have been sending emails to staff seeking to have discussions with them in the light of her anticipated return to the ICU. This overstates things somewhat, given that Dr Avard began contacting colleagues before the suspension decision was revoked (and the action that was being considered in lieu of that decision was to transfer Dr Avard to another hospital, not to let her return to the ICU). However, I do not think it is to the point. The point is not whether it was proper for Dr Avard to be making contact with colleagues in the ICU. The staff email did not seek to prevent that from happening; it simply sought to assure staff that they would not have to have contact with Dr Avard if they did not wish to. In a context where Ms Smitham was aware of the matters raised by the Deegan Report, aware of the decisions made by her superior Ms Zagari and aware that some staff in the ICU had expressed unease about having to have contact with Dr Avard, the sending of the staff email was readily justifiable.

(b)    As to the wording of the email, the last paragraph said “Staff do not have to accept meetings with Dr Avard”. It is submitted that this could have been put in a more neutral way: eg “staff may or may not …” or “staff may but are not required to …”. These alternative formulations do not represent any real advance on “staff do not have to …”. That wording clearly told staff that it was a matter for them whether or not they spoke to Dr Avard. There is, with respect, no substance in this point.

206    Accordingly, had I found that the sending of the staff email constituted “adverse action”, I would find that the respondents have met the onus under s 361 in relation to it.

Conclusions on the adverse action claim

207    The second, fifth and sixth actions complained of, properly analysed, constituted adverse action. The other actions did not.

208    In relation to each of the actions that did constitute adverse action, the respondents have established that the action was not taken because of Dr Avard’s exercise of a workplace right. I would make the same finding in relation to the other actions if, contrary to my conclusions above, they constituted adverse action.

the section 50 claim

209    Section 50 of the FW Act, as noted earlier, provides that a person to whom an enterprise agreement applies must not contravene a term of the agreement. Three breaches of s 50 are alleged by Dr Avard. They are in essence the same. On each occasion when a decision was made to commence in investigation into possible misconduct by Dr Avard, the applicable enterprise agreement required a “preliminary assessment” to occur before the decision was made. On each occasion, the process that was followed did not include notifying Dr Avard that a formal investigation was being considered and hearing from her as to whether that should occur. This, it is said, constituted a failure to provide procedural fairness and therefore a contravention of cl 111 of the 2021 Agreement or cl 117 of the 2022 Agreement (which are relevantly in the same terms).

210    Clause 111 (which is set out above at [14]) and cl 117 had the following features.

(a)    The purpose of the assessment is to determine “whether the matter can be resolved or whether further action is required”.

(b)    The assessment “will be done in an expedient manner” and is “generally” limited to having discussions with relevant employees (and, if requested, their representatives).

(c)    “Although the principles of procedural fairness apply, this assessment is not a formal investigation … and is designed to enable a manager or supervisor to quickly determine whether formal investigation or other action is needed …”. The manager or supervisor “will communicate the outcomes” to relevant employees.

(d)    The outcomes that are contemplated are:

(i)    a recommendation that the matter be investigated;

(ii)    an admission by the employee that misconduct occurred, followed by disciplinary action if appropriate; or

(iii)    (implicitly) no action.

211    In Alasady v Australian Capital Territory [2022] FCA 967 (Alasady) Raper J considered an argument that cl 117 of the 2022 Agreement imposed a requirement for a hearing. Alasady was another case involving allegations against a CHS employee arising out of the Deegan Review. At [62] her Honour said:

… the applicant claims that he has been denied procedural fairness as required by the applicable enterprise agreement by reason of the alleged failure to give him an opportunity to respond to any proposed recommendation by Ms Deegan for the matter to be investigated and by not being given an opportunity to respond the [sic] matters that had been “brought up about [him]”. There appears to be nothing in the terms of clause 117 to give rise to such obligations. The reference to “principles of procedural fairness” in subclause 117.4 appear to refer to the obligation on the part of the manager or supervisor to communicate the outcomes to the relevant employee and their representative as identified in the last sentence of the subclause. The clause states that a “preliminary assessment” does not comprise a “formal investigation” and its purpose is to consider the referral of the matter for investigation or a number of other outcomes.

212    Alasady was a decision on an application for an interlocutory injunction and Raper J therefore did not decide the point definitively. Her Honour concluded that Dr Alasady’s overall case was “weak” (at [78]), which (in principle at least) left room for the possibility that different conclusions might be reached on a final hearing. However, her Honour’s reasoning at [62] would not lightly be rejected and is, with respect, persuasive. The following points are to be noted.

(a)    Rather than conferring a power under statute to alter legal rights in a way that affects the rights and interests of Dr Avard, cl 111 and cl 117 were provisions of consensual documents which governed an aspect of her contract of employment with CHS. The force of any presumption that the powers conferred by clause 111 were conditioned by obligations of procedural fairness is therefore diminished.

(b)    The only express requirements in cl 111 and cl 117 were that the assessment must be done “in an expedient manner” and that outcomes must be advised.

(c)    The application of rules of procedural fairness was noted, not imposed, by cl 111.4 and the equivalent provision in cl 117. The operative words of the clause (requiring an expedient process) tell against a duty to provide procedural fairness, at least in any refined form. Similarly, the reference to discussions with relevant employees as an ordinary course to follow was contained in a phrase that limited what was required to be done.

(d)    The possible outcomes of the process appear to have been that no action would be taken or that the employee would be investigated (or that they would admit wrongdoing). If the matter proceeded to an investigation the employee would necessarily have the opportunity to answer precise allegations at that stage. While being investigated is no small thing (and, I have concluded above, is capable of constituting adverse action), it leads to no diminution of the employee’s rights without a hearing. It is not irrelevant here that police and prosecuting authorities have never been held to owe duties of procedural fairness to those whom they investigate or prosecute: LDF Enterprise Pty Ltd v New South Wales [2017] NSWCA 89; 95 NSWLR 70 at [31] (Leeming JA, Basten and Macfarlan JJA agreeing).

213    The Agreements must be read in the light of their industrial context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2] (Gleeson CJ and McHugh J); Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J). Intense linguistic analysis of their words will not always reveal its intention. This makes it easier to reconcile the references to rules of procedural fairness with the remainder of the clauses. That reference should be regarded (as Raper J suggested) as acknowledging that those rules would need to be complied with before any substantive action is taken against an employee for misconduct. Alternatively, they should be seen as aspirational.

214    For these reasons, I do not accept that the respondents contravened a term of the relevant enterprise agreement by failing to hear from Dr Avard in the context of the preliminary assessments.

disposition

215    The application must be dismissed.

216    The starting position, under s 570 of the FW Act, is that each party bears their own costs. However, an application for a costs order has been expressly foreshadowed by the respondents in relation to at least one aspect of the proceeding. I will therefore make orders providing for the parties to file evidence and written submissions on costs, and for an oral hearing on that issue if it is needed.

Associate:

Dated:    28 June 2024

SCHEDULE OF PARTIES