Federal Court of Australia

Larobina v Melbourne Health trading as Royal Melbourne Hospital [2024] FCA 1393

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for interlocutory relief contained within the amended originating application dated 3 December 2024 be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Mr Larobina, is an accomplished cardiothoracic surgeon. By an amended originating application dated 3 December 2024, he moves for various species of relief relating to a dispute in which he presently finds himself with his employer, the respondent (hereafter “the RMH”). Amongst other things, he seeks urgent interlocutory relief requiring, in effect, that the RMH reinstate unto him certain privileges that he enjoyed prior to that dispute arising.

2    That application has come before the court as a matter of urgency. In support of it, Mr Larobina relies upon an affidavit that he swore on Friday, 29 November 2024. The respondent relies upon four affidavits, namely of Prof Benjamin Thomson, Dr Robert Feiler, Prof Michelle Dolan and Dr John Kerr, all affirmed on 2 December 2024.

3    The reasons that follow have been prepared with the same haste with which the matter was called for hearing. I record the court’s gratitude to counsel and those who assisted them for the expertise by which the court was assisted on such short notice.

4    Mr Larobina is presently the subject of an investigation process that the RMH has commenced against him. The origins of that process date back almost a month (and perhaps further). On 8 November 2024, Mr Larobina was asked to attend a meeting with Prof Benjamin Thomson, the RMH’s Clinical Director of Surgical Services, the apparent purpose of which was to “discuss ‘some comments’” that he was alleged to have made about a colleague. It was proposed that that meeting might take place on Monday, 11 November 2024; but that did not transpire. Mr Larobina complained that he did not comprehend the meeting’s purpose and sought further details in advance of any meeting. They were not provided.

5    As they sometimes do, things thereafter degenerated to the exchange of legal correspondence. The particulars of that exchange needn’t be rehearsed. Instead, it suffices to record that, on Tuesday, 19 November 2024, Mr Larobina received an email from Dr Fergus Kerr, the RMH’s Chief Medical Officer, to which was attached a letter headed “Re: Confirmation – Release from Duty”. By that correspondence, the RMH suspended Mr Larobina from his employment on full pay, purportedly so that “an external investigation [could be] undertaken into alleged serious misconduct, specifically conduct that is alleged to have caused serious and/or imminent risk to the health and safety of a person and the reputation of [the] RMH”.

6    Further legal correspondence ensued, the particulars of which (again) needn’t be rehearsed. It is sufficient to note that the RMH expanded upon its initial reasons for the suspension by recording that Mr Larobina was alleged to have “made disparaging and harmful comments about another surgeon’s competence and the competence of the cardiothoracic unit at [the] RMH”.

7    Mr Larobina remains presently under suspension from his duties at the RMH. That reality is one that he hopes to reverse by means of his application for urgent interlocutory relief.

8    To that end, Mr Larobina complains that he has been subjected to adverse action in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the “FW Act”) and coercion in contravention of s 343(1). I shall say more about the nature of those allegations shortly; but, for now, it suffices to note that he contends that his suspension from duty—amongst other things but the suspension appears to loom largest for present purposes—was animated by two realities, namely

(1)    his having made a series of communications about various matters pertaining to his employment; and

(2)    the RMH’s desire to have him withdraw some or all of them (or the concerns that underpinned his making of them).

9    Additionally, Mr Larobina submits that he has been suspended in contravention of the duty that is imposed upon the RMH and its management by s 41(2) of the Health Services Act 1988 (Vic) (the “HS Act”). He seeks relief in the court’s associated jurisdiction for what he submits is the RMH’s tortious breach of the statutory duty so imposed.

10    The principles that govern the court’s discretion to grant interlocutory injunctive relief are well-settled and are not presently in dispute. In Dixon v United Workers Union [2023] FCA 1526 (“Dixon”), [22]-[26], I set them out as follows:

22    The principles that govern the court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that they seek, the applicants must demonstrate that they have a prima facie case for it and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“O’Neill”), 81-84 [65] [72] (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

23    An applicant for an interlocutory injunction needs to establish that their prima facie case has a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The strength of the likelihood depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: O’Neill, 82 [65]; Quinn v Overland (2010) 199 IR 40, 50 [45]-[46] (Bromberg J); and AWU v Dee Vee [2012] FCA 988, [17]-[18] (Tracey J).

24    When considering the grant of an interlocutory injunction, the issue of whether an applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ), citing, with approval, Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339, 342 [15] (Sundberg J).

25    In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):

…[A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

26    Additionally, an applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); CEPU v Blue Star Pacific (2009) 184 IR 333, 339 (Greenwood J). That is not a third criteria upon which the granting of interlocutory relief hangs; rather, it forms part of the court’s assessment as to where the balance of convenience lies: Liberty Financial Pty Ltd v Jugovic [2021] FCA 607, [283] (Beach J).

11    With those principles stated, it is appropriate to record some additional matters of background. Mr Larobina has been employed as a specialist cardiothoracic surgeon at the RMH for approximately 15 years. Until recently, he worked a typical 42-hour fortnight; and did so in accordance with a rotating four-week roster. He performed surgeries at theatres belonging to the RMH on Wednesdays and Fridays.

12    Surgical theatre slots at the RMH are limited. Prof Thomson’s evidence was that, when new surgeons are brought into the cardiothoracic surgical unit, it is necessary to find theatre slots for them, which inevitably requires the reallocation of slots otherwise allocated to others.

13    The RMH is one of five public hospitals in Victoria at which cardiothoracic surgery is performed. Mr Larobina is one of approximately 40 surgeons who perform that work (that is, within the public health system). He is separately engaged to perform similar work in the private health system.

14    Mr Larobina has particular expertise in complex aortic and valvular reconstruction surgery. One such surgery on his rotation is known as the Ross procedure, which involves the simultaneous replacement of aortic and pulmonary valves. The coterie of Melbourne-based cardiothoracic surgeons who regularly perform that surgery is small: perhaps as few as three.

15    It should likely go without saying that the surgery that Mr Larobina performs is performed in order to rescue patients from what are often (or might often become) life-threatening predicaments. As Mr Larobina deposed: “[o]nce a patient is assessed as having met the criteria for aortic valve surgery, the surgery is generally scheduled (and carried out) as soon as possible”.

16    Prior to his suspension from duty, Mr Larobina estimates that he conducted an average of eight complex cardiothoracic surgeries (including Ross procedures) per month at the RMH. Additionally, he performed what he describes as more “run-of-the-mill” heart surgeries, such as bypass procedures.

17    The work that Mr Larobina performs at the RMH is referred to him by cardiologists. The referrals are personal to him, in that cardiologists nominate him to perform the required procedures, rather than the hospital or its cardiothoracic surgery team more broadly.

18    Mr Larobina’s present predicament, so far as he reasons, dates back to some observations that he made in February 2024 about a fellow surgeon. There were, he explains, moves afoot at that time to promote the surgeon in question, which, for reasons that needn’t be stated, he did not think was a good idea. He said so, at least to those in positions of authority within his unit (including Dr Kerr).

19    Those concerns (which, so Mr Larobina was keen to impress upon the court, were shared by other members of the RMH’s cardiothoracic surgery team) appear to have been heeded and (or, perhaps, in any event) the surgeon in question was not promoted.

20    It is unclear whether that decision was made before or after Mr Larobina sent correspondence dated 2 April 2024 to Mr Skillington, the then Director of RMH’s Cardiothoracic Surgery Department. In that letter, Mr Larobina repeated his opposition to the appointment (or, perhaps, the promotion) of the surgeon about whom he had previously voiced his concerns.

21    In August 2024, a cardiothoracic surgery patient at the RMH died, apparently as (or partly as) a result of what Mr Larobina describes as a mistake that he attributes to the surgeon about whom he had in February and April expressed concern. That suggestion of mistake is disputed. For present purposes, I needn’t make any observations about whether or not it is well-founded. What is relevant, however, is how Mr Larobina appears to have reacted to what transpired.

22    Two weeks after that surgery (on 28 August 2024), Mr Larobina had occasion to write again to Mr Skillington. He was at that point on “sabbatical leave” (as he had been since March 2024) but had come to understand that there were what he described, albeit not with much in the way of detail, as “very serious issues” affecting the cardiothoracic surgical work at the RMH. He expressed some concern about them and their potential to impact upon him; and, as a result, proposed that he would defer his return by taking a period of three weeks’ annual leave.

23    Two days later, Mr Skillington called Mr Larobina to inform him that his (Mr Larobina’s) “Friday List” was to be removed from him and assigned to other surgeons.

24    Ultimately, that did not occur; but what did transpire is worthy of recording.

25    After their discussion, Mr Larobina sent Mr Skillington an email in the following terms:

Dear Peter,

By way of your recent phone calls, with no previous discussion/notice you have alleviated me of my Friday operating duties.

Can you please reiterate to me the reasons for redistributing my Friday list to other surgeons/fellows yet there is a guarantee that this will have no long term effect on my future contractual terms with RMH?

I am distressed as it seems you are making this last step as a punitive action to disengage me from the adult congenital practice which has been evident since at least 2020. You cited during the call your displeasure at my ability to perform these cases independent of you from 2016 onwards. I quote from my contemporaneous notes of the two conversations we had, that you felt threatened by my relationship with cardiologists throughout Melbourne, and the extent of my private practice and that this was the only remaining surgical space you could protect.

I would grateful if you address my primary question.

Regards

Marco

26    A few hours later, Mr Skillington responded in the following terms, namely:

Hi Marco, this measure was to accommodate Ed Buratto on his return to RMH in another few weeks. I have been assured that [y]our contractu[al] terms (as in 42 paid hours per fortnight) at RMH will remain unchanged until the new director of the Cardiothoracic Unit is appointed next year. I cannot say what will happen then, and as you know, I am retiring on February 1st (this will presumably be decided by the new appointed HOU)

On the private practice front, I congratulate you on your successful practice at Epworth – as you recall, I helped you establish that when Tony Walton and Paul Sparkes came to see me, and asked who would be an excellent new surgeon to join their practice many years ago, and I nominated you. I also mentored you during your initial 5-6 Ross Procedures, and you are now an expert in that area, and have been included in several papers in international journals on this operation

I hope you have a good weekend

Regards

Peter

27    On 30 August 2024, Mr Larobina had a discussion with Prof Thomson. That discussion touched upon multiple topics; but of present relevance was a comment that Mr Larobina made about the surgeon who had worked on the patient that had died in August. During his discussion with Prof Thomson, Mr Larobina accused her of having “killed the patient”.

28    On 3 September 2024, Mr Larobina received an email from Prof Thomson. In that email, Prof Thomson referred to changes that would be made to Mr Larobina’s operating schedule with effect from 14 October 2024 (six weeks later). Prof Thomson explained:

…I plan to reduce your operating commitment with the reduction of your fortnightly Friday list at the Royal Melbourne Hospital but leaving your other clinical and non-clinical commitments intact. There will be no reduction to your EFT which is currently 42 hours a fortnight.

29    Mr Larobina sought to resist his removal from the “Friday List”. On 9 September 2024, he replied to Prof Thomson’s email (and copied in Mr John Goldblatt, who was anointed at the time to succeed Mr Skillington as the head of the RMH’s Cardiothoracic Surgery Unit). In that email, Mr Larobina said (relevantly for present purposes):

…

Your subsequent letter of 3 September now suggests this decision [to remove Mr Larobina from the “Friday List”] has been made as part of a “redesignation” of theatre lists to allow for access for all surgeons to a planned surgery list at RMH. Your letter seems to suggest that this is required to accommodate surgical appointments made in the last 12 months while I have operated with access to the Friday operating list under the terms of my ongoing employment.

Put another way, what appears to have been decided is that my standing access to Friday’s operating list will be unilaterally revoked by RMH in favour of newly appointed or returning surgeons. Among other things, this is a decision which:

•    has been made without any prior consultation with me;

•    will significantly reduce my contracted operating access;

•    is, with respect, unreasonable; and

•    if acted upon by RMH, I believe is contrary to the terms of my employment with RMH.

Regrettably, I must now advise you that I dispute the decision and reserve all of my rights.

...

30    Further correspondence followed. Prof Thomson sought to reassure Mr Larobina that the decision to remove him from the “Friday List” was “…a rostering change [that did] not impact [his] position or the terms of [his] contract” and was one that he and Mr Skillington “…had been discussing and planning…in light of the changes in the team including the return of staff from leave and recent resignations”.

31    Mr Larobina did not accept that assurance. By email dated 17 September 2024, he insisted that the change to his roster had been “a unilateral decision” and noted that he had “…not been offered any alternate operating access in lieu of what the RMH has unilaterally decided to revoke”.

32    Ultimately, Mr Larobina called in his lawyers. On 2 October 2024, his solicitor wrote to the RMH and alleged that his proposed removal from the “Friday List” would, if effected, contravene his employment contract and the provisions of an applicable enterprise agreement. The letter demanded that the RMH refrain from making the changes to Mr Larobina’s roster that it had proposed.

33    There were then some discussions as between Mr Larobina’s lawyer and the RMH, the culmination of which was the RMH indicating that it would “…not proceed with the decision to remove [his] operating theatre access in the week commencing 14 October 2024”. That indication was given on 4 October 2024.

34    Mr Larobina’s retention on the “Friday List” continued until the commencement, more than a month later, of the misconduct investigation process to which I referred at the commencement of these reasons.

35    Part 3-1 of the FW Act is entitled “general protections”. Amongst the various protections for which it provides is s 340, which relevantly 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).

36    It is that prohibition that sits at the centre of Mr Larobina’s claims presently. He maintains that, by threatening to remove him from the “Friday List” and by suspending him from his employment, the RMH subjected him to adverse action; and that, in each case, it did so unlawfully because he had exercised a workplace right or workplace rights.

37    It is necessary to unpack the constituent elements of that claim.

38    Section 342 of the FW Act identifies when conduct will qualify as “adverse action”. The concept is defined broadly and it is apt to cover suspension from employment and the threatened alteration (over opposition) of an employee’s roster. At least is that so inasmuch as concerns the existence of a prima facie case for interlocutory injunctive relief.

39    Section 341 of the FW Act identifies when a person might be thought to possess a “workplace right”. Relevantly, it provides as follows:

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.

    …

40    Adverse action that is taken against an employee for multiple reasons will be taken in contravention of s 340(1) of the FW Act if one of those reasons is a reason that that section proscribes: FW Act, s 360. At the trial of his application, Mr Larobina will be substantially assisted by the operation of s 361(1) of the FW Act, which will serve to presume, unless or until the RMH proves otherwise, that the adverse action taken against him was taken for a reason or reasons proscribed by s 340(1). However, that presumption does not presently operate: FW Act, s 361(2). All of these propositions are accepted by both parties.

41    Section 343(1) is in the following terms:

343     Coercion

(1)     A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)     exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)     exercise, or propose to exercise, a workplace right in a particular way.

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

42    Coercion, in that setting, has a well-settled meaning. It is apt to describe unlawful, unconscionable or illegitimate conduct in which a respondent engages with the intent of negating an applicant’s choice as to some matter: Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39, 84 [174] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding); see also the discussion concerning older authorities on the point in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16, 23-24 [20]-[22] (Gyles J) and the authorities to which the full court referred in Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, 300 [155] (Allsop CJ, Collier and Rangiah JJ).

43    Mr Larobina maintains that, by making various of the communications that he made between March and November 2024, he is to be understood to have exercised a “workplace right” within the meaning given to that term by s 341 of the FW Act. Specifically, he relies upon his having:

(1)    expressed the concerns that he raised in February 2024 about a fellow cardiothoracic surgeon (above, [18]);

(2)    sent his correspondence of 2 April 2024 (above, [20]);

(3)    sent his email of 28 August 2024 (above, [22]), in which he:

(a)    expressed his concerns about “very serious issues”;

(b)    proposed to take annual leave;

(4)    sent his email of 30 August 2024 (above, [25]);

(5)    sent his email of 9 September 2024 (above, [29]); and

(6)    via his lawyers, sent his correspondence of 2 October 2024 (above, [32]);

44    I do not consider that the evidence suffices to establish a prima facie case that the RMH has subjected Mr Larobina to unlawful adverse action in contravention of s 340(1) of the FW Act. There are multiple dimensions to that conclusion.

45    I should begin by recording what is not in dispute. It is accepted, at least for present purposes, that the evidence discloses a prima facie case that the RMH has taken adverse action against Mr Larobina in the form of its threatened and actual (albeit reversed) alteration to his roster, its raising of misconduct allegations against him, and its decision (and initial threat) to subject him to the investigatory process that it has commenced (and his related suspension from work).

46    Similarly, it is accepted that by making each of the six communications upon which Mr Larobina relies (above, [43]), there is at least a prima facie case for holding that Mr Larobina can be understood to have exercised a workplace right for the purposes of s 340(1) of the FW Act.

47    Whether there exists a prima facie case that the RMH has engaged in conduct in contravention of that subsection is a question that, for present purposes, turns solely upon whether or not it is seriously arguable on the evidence that its conduct was relevantly actuated by the exercise of any one or more of those workplace rights.

48    I am not persuaded that it is. There is nothing in the evidence that serves to establish, by inference or otherwise, any causal link between any of the workplace rights that Mr Larobina is presently accepted to have exercised (on the one hand) and the adverse action that he says has been taken against him.

49    Particularly is that so insofar as concerns the adverse action that is said to have inhered in the threatened alteration to Mr Larobina’s roster. That was foreshadowed on 30 August 2024. The idea that it might seriously have been premised upon observations that Mr Larobina made about his workplace in March and April 2024 seems, to say the least, unlikely. I should not wish to suggest that there is no prospect of that being found to be so at trial—and it remains, of course, the case that Mr Larobina will be substantially assisted in that regard by the statutory presumption to which s 361(1) gives effect—but, at this juncture, the evidential foundation upon which that causal relationship falls to be established is not apparent.

50    There is, of course, a better basis for suggesting that the proposed or threatened change to Mr Larobina’s roster arose because of his email of 28 August 2024. It was, after all, only two days later that the threat was first made. That question of timing, however, is insufficient to stand as evidence from which the court might properly infer, whether on a prima facie case basis or at all, that the former was a reason for the latter. That is particularly so in light of the evidence that does exist as to why that rostering decision was taken. It his email of 30 August 2024, Mr Skillington explained the basis for it and the reasons so identified are plainly unrelated to any of the workplace rights that Mr Larobina says had been exercised to that point.

51    That is consistent with the evidence that the respondent has led. Prof Thomson deposes to having made the decision to remove Mr Larobina from the “Friday List” and to the reasons why he did so. He deposes to having made that decision a couple of days prior to 28 August 2024 (when Mr Larobina made his additional observations about the unit and proposed that he would take annual leave); and to have done so in order to accommodate other surgeons (or one, in particular; whose introduction into the unit was pending, having been announced several months earlier). That Mr Larobina had been moved to correspond with the RMH as he did did not, so Prof Thomson deposes, bear in any way upon the decision.

52    As to the effecting of Mr Larobina’s suspension, similar observations may be made. Nowhere in the evidence is there any viable suggestion that the RMH decided to suspend Mr Larobina from his employment because he had made any of the communications by which he says he exercised workplace rights. Again, such evidence as there is falls well short of establishing a prima facie cause of action founded upon a potential inference that it was done because, or for reasons that include that, Mr Larobina had made any one or more of those communications.

53    In any event, the respondent’s evidence—albeit, at this juncture, untested—is wholly at odds with Mr Larobina’s case concept. Prof Thomson deposes to a discussion that he had with one of Mr Larobina’s colleagues—specifically, the same colleague about whom Mr Larobina had previously expressed concern—on 7 November 2024, during which it became apparent to him that Mr Larobina was understood to have made disparaging comments to others about her competence, which had made their way back to her and caused her significant distress. Those comments were consistent with comments that Mr Larobina had made directly to Prof Thomson (and which have been repeated in the submissions advanced here on his behalf).

54    Prof Thomson then informed (amongst others) the RMH’s acting Chief Medical Officer, Dr Robert Feiler, of what he had come to understand of Mr Larobina’s conduct. Dr Feiler determined that the concerns regarding that conduct should be addressed with Mr Larobina informally at first instance. That led to the invitation that Prof Thomson extended on 8 November 2024, which Mr Larobina declined. Additional attempts to have Mr Larobina attend an informal meeting to discuss the matter were met with similar resistance. Instead, Mr Larobina insisted upon advance, written particulars of what was proposed for discussion.

55    Mr Larobina was told that, in the absence of an informal discussion about what Prof Thomson had come to understand, matters would be escalated to a more formal process. That, ultimately, is what transpired.

56    The suggestion that Mr Larobina might have engaged in misconduct toward his colleague was escalated to the level of the RMH’s Chief Executive, Prof Shelley Dolan, and Chief Medical Officer, Dr John Kerr. They claim to have made the decision to effect Mr Larobina’s suspension and, so they depose, to have done so because of the comments that they had come to understand that he had made about his colleague. Both deny the suggestion that they did anything because Mr Larobina had made communications in which he identified complaints or other issues (or otherwise exercised a workplace right or rights).

57    At the hearing of the interlocutory application, the court was treated to extensive submissions about why the evidence led from the RMH witnesses was ripe for rejection. For reasons that might become apparent, I do not consider it necessary to rehearse them here, at least not beyond a headline level. It suffices to observe that counsel for Mr Larobina, by means of a very careful and methodical analysis of their evidence, sought to identify a significant number of inconsistencies or anomalies in the matters to which the RMH witnesses deposed. His analysis touched upon all manner of concerns, including the order in which the respondent’s witnesses communicated things to each other and to Mr Larobina, the dearth of explanation that they gave about various matters, the want of transparency that is said to have attended their inquiries as to Mr Larobina’s alleged conduct, what were said to be curious omissions that infected their written and oral communications, and the administrative deficiencies that were said to inhere in the processes in which they engaged or proposed to engage.

58    There was, counsel maintained, considerable scope for the court to reject the evidence that the RMH witnesses gave, particularly about their explanations as to what did or did not motivate their respective conduct. Ultimately, the submission that was advanced was that the holes that could be poked in the respondent’s evidence (a very brief and high-level summary of which I have given above) accumulate to a point at which two inferences become available, or arguably available: first, that the reasons given in their evidence as to why the RMH subjected Mr Larobina to the adverse action of which he complains were, in truth, not the real or only reasons for which they did so; and, second, that they did so also for reasons that included his exercise of one or more of the workplace rights upon which he relies.

59    True it is that none of the respondent’s evidence is tested at this stage; and it might be that there is reason at trial not to accept it. Nonetheless, it is the only evidence that is currently before the court that goes, directly or inferentially, to the RMH’s reasons for visiting the adverse action of which Mr Larobina complains. Mr Larobina’s second contention above—that a prima facie case inheres in the potential that the court might positively find, by inference drawn upon the evidence as it presently stands, that the RMH took adverse action against him for a reason or reasons that s 340(1) proscribes—cannot be accepted. There is no proper evidential basis upon which to infer (even only at a prima facie case level) that the RMH was actuated to do as it has done on account of any one or more of the communications upon which Mr Larobina relies.

60    As to that, it is important to bear in mind the distinction between proof of a proscribed purpose or intent (on the one hand) and disproof of what the respondent advances as its actuating purpose or intent (on the other). Mr Larobina’s criticisms all go to the latter: they are all proffered as reasons why the court might be minded to accept that the reasons that the RMH offers as its actuating reasons were not actually or solely its actuating reasons. They cannot suffice positively to stand as an evidential foundation upon which the court might infer that it had other reasons that s 340(1) of the FW Act proscribes.

61    What Mr Larobina must prove at this juncture (without the assistance of the statutory presumption for which s 361(1) provides) is what the RMH’s reasons for acting were; not what they were not. In Dixon (to which both parties made extensive reference), I sought to explain the difference as follows (at [40]-[41]):

40    …The prima facie case that the applicants need to establish is not that the reasons proffered by the respondents are not the actual reasons for which identified conduct is being or will be engaged in; the applicants must, instead, establish a prima facie case that the reasons for that conduct are reasons that pt 3-1 of the FW Act proscribes.

41    Something should be said about s 361 of the FW Act. At the trial of their application, the applicants will reap the benefit of the statutory presumption for which s 361(1) of the FW Act provides. It will, at that juncture, fall to the respondents to establish that they did not threaten or take adverse action against the applicants because, or for reasons that included that, they had each exercised or proposed to exercise a workplace right or workplace rights.

42    At the present (interlocutory) stage, however, the applicants can gain no assistance from that presumption: FW Act, s 361(2). That being so, the court must ask itself: is there anything in the evidence to suggest that the exercise or proposed exercise of a workplace right or workplace rights factors as having actuated the…adverse action relied upon…?

62    Again, none of that should be understood to doubt the possibility that Mr Larobina might, at trial, establish the causal link that he needs to establish in order to substantiate his case under ss 340(1) and s 343(1) of the FW Act; that is to say, the causal link between his having made any one or more of the communications upon which he relies (on the one hand) and his subjection to adverse action (on the other). He might even do so without having to rely upon the presumption in s 361(1)—that is to say, he might succeed positively in establishing on the evidence (rather than by reliance upon the statutory presumption) that the reasons for which action was taken against him included reasons proscribed by s 340(1) of the FW Act. On the evidence as it presently stands, however, there is no basis that rises above speculation that one thing stands as a reason that has relevantly actuated the other. At most, the evidence suffices to establish a correlation as between the RMH’s conduct and Mr Larobina’s exercise of workplace rights; but it does not suffice to establish even an arguable case of causation, which is the hurdle that must be cleared.

63    I should say something about the specific workplace rights that Mr Larobina is, for present purposes, to be understood to have exercised. Insofar as concerns the observations that he made about matters of workplace safety, I consider that there is as good as no prospect that the evidence as it presently stands might warrant a finding that they actuated the RMH in any way in proposing to remove (or removing) Mr Larobina from the “Friday List”, or in threatening or effecting his suspension (or subjection to misconduct allegations). It is to be recalled that the proposal to alter his roster was not to be effected immediately; but rather was to take effect in mid-October, some six weeks after it was first communicated. Why an employer unhappy with the airing of concerns about matters of workplace health and safety might react by threatening consequences six weeks into the future is anything but clear.

64    The explanation—at least on the evidence as it presently stands—appears to be relatively clear (albeit it is necessarily untested). In his email of 30 August 2024, Mr Skillington explained that the proposal:

…was to accommodate [another employee] upon his return to RMH in another few weeks.

65    Prof Thomson’s evidence was to similar effect. Again, I should not wish to be understood as suggesting that, at trial, Mr Larobina has no prospect of establishing that the proposed change to his roster was relevantly actuated in the way for which he now contends. He will, at that stage (I say at the risk of repetition), be significantly assisted in that regard by the operation of s 361(1) of the FW Act, which will relieve him of the obligation that he now struggles (albeit only at a prima facie case level) to discharge: namely, to prove that which he alleges. At this juncture, though—where presumption is insufficient and there must be some basis in the evidence upon which the court might be led to infer the causal relationship that s 340(1) of the FW Act requires—the evidence in this matter is not there. It cannot ground the inference, potential or otherwise, that Mr Larobina invites the court to draw.

66    Likewise, the suggestion that anything adverse was visited upon Mr Larobina because he proposed to take, or took, annual leave is ambitious, to say the least. It is to be recalled that Mr Larobina was already on leave as at late August 2024. He proposed to take a further three weeks’ leave and Mr Skillington appears to have responded to that proposal with the level of indifference that is to be expected of any reputable employer. The suggestion that, in light of Mr Larobina’s decision to extend his leave, the RMH decided to bring about a change to his roster in six weeks’ time is not credible. Had the leave issue been an actuating one, one might expect to have seen the consequence visited more immediately.

67    In any event, the point is—again at the risk of repetition—comprehensively addressed by the RMH’s evidence. Albeit that it is untested at this point, Prof Thomson’s evidence is that he made the decision to alter Mr Larobina’s roster before he proposed that he would take annual leave.

68    Something should be said about Mr Larobina’s coercion case. In order that it might be made out (whether on a prima facie case level or otherwise), Mr Larobina will need to establish that the RMH’s conduct toward him was relevantly unlawful, unconscionable or illegitimate. Counsel for Mr Larobina helpfully confirmed that the only conduct said to qualify in that regard was what is alleged to have been conduct taken in contravention of s 340(1) of the FW Act. Thus, it is unnecessary to descend further to analyse the case advanced under s 343(1): if, as I have found, there is no arguable case that Mr Larobina has been subjected to adverse action in contravention of s 340(1) of the FW Act, then it will necessarily follow that there is no arguable case that action has been taken against him in contravention of s 343(1).

69    The only evidence presently before the court as to why the things that the RMH did were, in fact, done inclines toward the conclusion that those things were done for reasons that do not intersect with the unlawful intention or reason that Mr Larobina has to establish. There is no prima facie basis upon which the court might immediately reject it and favour the drawing of an inference consistent with Mr Larobina’s alternative case concept.

70    It follows, then, that I do not accept that Mr Larobina can establish a prima facie case that any action has been taken against him in contravention of s 340(1) or 343(1) of the FW Act.

71    That is a convenient point to change focus to the case advanced in tort. Mr Larobina submits that his suspension from duty offends against what he says is the duty imposed upon the RMH by s 41(2) of the HS Act. That section provides as follows, namely:

41    Powers and duties

…

(2)    The board of a public hospital or denominational hospital must not dismiss or suspend any registered medical practitioner employed or engaged by the hospital unless the board—

(a)    where there has been an allegation against the registered medical practitioner, inquires into any matter alleged; and

    (b)    gives the registered medical practitioner an opportunity to be heard.

72    Presently, there is no dispute that the RMH qualifies as a public hospital, nor that Mr Larobina is a registered medical practitioner (within the statutory meanings that those terms attract).

73    The elements of the tort upon which Mr Larobina moves are well settled. It is committed when a respondent visits injury or loss upon an applicant by acting in contravention of a statutory injunction that is enacted for his or her protection or benefit (or for the protection or benefit of a class to which he or she belongs), and that is, upon its proper construction, intended to impose a civil liability for any such injury or damage: Byrne v Australian Airlines Limited (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and Toohey JJ).

74    So far as counsel was able to ascertain in the very short time that they had in which to consider the point, the HS Act makes no express provision for any sanctions to address conduct engaged in in contravention of s 41(2). If he is to succeed on the claims that he prosecutes, the applicant will need to satisfy the court that s 41(2) should, inferentially, be construed so as to excite the application of the tort.

75    That is a difficult hurdle to clear. It was, of course, open to the Victorian Parliament to enact within the HS Act remedies creating private rights in the event of breach of s 41(2). It has been said that, “[i]f Parliament had intended such a right to exist, it is difficult to see why it did not use familiar mechanisms to create it expressly”: Keith M Stanton, ‘New Forms of the Tort of Breach of Statutory Duty’ (2004) 120(Apr) Law Quarterly Review 324-341. It is “relatively rare” for courts to infer the legislative intention upon which the existence of the tort depends in any given case: Porter v OAMPS Ltd (2005) 215 ALR 327, 353 [110] (Goldberg J).

76    Nonetheless (and perhaps paradoxically), there are many examples over the last century, both in Australia and the United Kingdom, of authorities in which the availability of the tort has been recognised. In Martin v Western District of the Australian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR(NSW) 593, 597-598 (Jordan CJ, with whom Stephen and Maxwell JJ agreed) observed:

…the question is in every case to be resolved by a consideration of the Act as a whole. There is no hard and fast rule which can be applied to solve any particular case…

77    Presently, the RMH accepts that the evidence suffices to establish a prima facie case that, by suspending Mr Larobina from his employment, it has acted tortiously in breach of the statutory duty imposed upon it by s 41(2) of the HS Act. Respectfully, that concession was properly offered.

78    All the same, the RMH contends that such prima facie case as does exist in tort is weak. That is said to be so on multiple bases.

79    First, it is said that the duty imposed by s 41(2) of the HS Act is concerned to guard against the imposition of disciplinary sanctions inhering in the form of suspension or dismissal. It is not, the RMH contends, to be understood as a prohibition upon interim measures that are embarked upon whilst investigations into misconduct allegations transpire.

80    Second, the RMH contends that it should be understood to have discharged the duty that s 41(2) imposes, in that it made inquiries into the matters alleged against Mr Larobina and gave him an opportunity—albeit one that he declined—to be heard before it suspended him from duty.

81    Third, reference was made to cl 12 of the enterprise agreement that applies in respect of Mr Larobina’s employment. That clause is entitled “Managing Conduct and Performance (Discipline)”. It envisages, in relation to concerns that arise about an employee’s potential misconduct, that the RMH will embark upon an “investigative procedure”. Clause 12.3 describes what such a procedure might entail. It provides as follows:

12.3     Investigative procedure

(a)     The purpose of an investigative procedure is to conclude whether, on balance, concerns regarding conduct or performance are well-founded and supported by evidence. An investigation procedure must be fair including proper regard to procedural fairness.

(b)     The Health Service will:

(i)     advise the Doctor of the concerns and allegations in writing;

(ii)     provide the Doctor with all material which forms the basis of the concerns before seeking a response;

(iii)     ensure the Doctor is provided a reasonable opportunity to answer any concerns including a reasonable time to respond;

(iv)     advise the Doctor of their right to have a representative, including a representative of the Association;

(v)     ensure that the reason for any interview is explained; and

(vi)     take reasonable steps to investigate the Doctor’s response.

(c)     Where the Health Service has complied with subclause 12.3(b)(i) –12.3(b)(iv) and the Doctor does not dispute the concerns, the Doctor may opt to decline the opportunity to be interviewed.

(d)     Where the Doctor opts to decline the opportunity to be interviewed, the Doctor may still raise matters under subclause 12.4(c) including matters in mitigation if a disciplinary procedure (see subclause 12.4) is proposed.

(e)     Where the Doctor is being stood down by a Health Service during a process set out in this clause 12, the Doctor will receive ordinary pay for their rostered hours as if the Doctor was not stood down by the Health Service.

82    Very plainly, cl 12.3 contemplates that an employee might be stood down on pay—as Mr Larobina has been—pending the completion of an “investigative procedure”. Insofar as that contemplation is inconsistent with s 41(2) of the HS Act, the enterprise agreement—being an instrument that attracts statutory force under a Commonwealth enactment—prevails: Commonwealth Constitution, s 109.

83    I accept that there is a prima facie case that, by its ongoing suspension of Mr Larobina, the RMH has acted (and is acting) in tortious breach of the statutory duty imposed by s 41(2) of the HS Act. I consider, however, that that case is only barely arguable.

84    In that regard, I accept the RMH’s contention that the section is very likely directed to the imposition of suspensions in the form of disciplinary outcomes; and to ensuring that no such outcomes are visited without the affected employees first being afforded the incidents of procedural fairness to which s 41(2)(a) and (b) refer. It is unlikely that the Victorian Parliament intended to impose a blanket prohibition upon the standing down of employees pending investigations into allegations of misconduct.

85    To the extent that it might have, that intention is extremely difficult—though, as counsel for Mr Larobina submitted, not impossible—to reconcile with the terms of cl 12 of the applicable enterprise agreement. It very plainly contemplates that an employee against whom an allegation of misconduct is levelled may be stood down during what is described as the “investigative procedure”, the purpose of which appears very much directed to inquiries of the type to which s 41(2)(a) of the HS Act refers.

86    Likewise, I accept that the suggestions that the RMH has not made relevant inquiries or afforded Mr Larobina an opportunity to be heard—as each of s 41(2)(a) and (b) contemplate—are not strongly arguable. It is unclear what s 41(2)(a) envisages by the making of “inquir[i]es into any matter alleged”. It is not clear why it should not be sufficient in this case for the RMH to have discussed the nature of Mr Larobina’s conduct with the colleague in respect of whom he is said to have engaged in it. That seems very plainly to have occurred (at least by Prof Thomson’s discussion with her on 7 November 2024—above, [53]). Similarly, Mr Larobina was thereafter invited to a meeting for the purposes of discussing the matters that Prof Thomson had discovered. He declined that invitation. His reasons for doing so might or might not be defensible (it is unnecessary that I should venture a view about that); but it remains, nonetheless, that he was afforded at least something in the nature of an opportunity to be heard.

87    All of that stands against the inherent difficulty that an applicant must overcome in order to qualify for relief in tort. I accept (at the risk of repetition) that there is a prima facie case to be made on that front; but, for the reasons that I have explored, it strikes me as very weak.

88    As to the balance of convenience, I am unpersuaded that it inclines strongly one way or the other. If it favours the grant of interlocutory relief, it does so only barely.

89    Mr Larobina deposes to the inconvenience that will attend his failure on the present application. It is said to inhere in various ways but, by way of summary, in:

(1)    ongoing injury to his reputation;

(2)    financial loss;

(3)    lost opportunity to practice his craft; and

(4)    the adverse treatment of his patients.

90    Of those, I consider that it is only the last that suffices materially to inform whether the balance of convenience is in favour of interlocutory injunctive relief. Any injury to Mr Larobina’s reputation will be addressed (and, if necessary, remediated) at trial: if he wins, he will be vindicated and his reputation will be restored. I am unable to see how—which is to say that it has not been explained that—it will suffer cumulatively over the course of his suspension; at least not in a way that his success at trial won’t competently address.

91    The financial impact is not significant either (presently, that is). There is no evidence before the court about Mr Larobina’s financial position and there is nothing to suggest that he stands to suffer in ways that can’t be addressed by an award of compensation if he succeeds at the trial. The contention was not advanced with great enthusiasm and, with respect, rightly so.

92    The impact upon Mr Larobina of his inability to undertake surgery at the RMH, whilst not irrelevant, is not especially compelling. Mr Larobina remains a cardiothoracic surgeon and he will continue to perform cardiothoracic surgery at a location or locations other than the RMH. Such opportunities as he might forego as a result of his suspension do not materially bear upon the court’s assessment as to where the balance of convenience in this case lies.

93    The evidence about Mr Larobina’s existing patients is more significant, at least potentially. In assessing where the balance of convenience lies, it is appropriate that the court should have regard to the impact that a grant or refusal to grant injunctive relief might visit upon third parties: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 41-42 [65] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). To the extent that Mr Larobina’s failure in the present application might sound in the adverse treatment of his patients (whether because his suspension remains or he is removed from the “Friday List”), that is undoubtedly a matter to which the court should pay regard.

94    The evidence on that front, however, is not as clear as it could be. Mr Larobina refers generally to the impact that his unavailability will visit upon his patients. He deposes to having “about 6 or 7 relatively urgent, difficult patients on [his] list…who expect [him] to do their surgeries”. It is unclear whether or to what extent any of them might be impacted by a refusal to grant interlocutory relief. There is no evidence that any of them are presently scheduled for surgery, nor is it clear that the RMH will be unable to make accommodations for them (although, to be clear, even assuming that some accommodations can be made, I would nonetheless accept that the loss of their preferred surgeon is a matter that should inform the court’s assessment of the balance of convenience).

95    The RMH was at pains to point out that Mr Larobina has only recently (in or around September) returned from an extended absence, during which there is no evidence that any of his patients had to endure sub-optimal treatment.

96    Further, it must be accepted that the RMH has a significant interest in enforcing legitimate norms of behaviour amongst its staff and the ways in which they should interact with each other. There can be no doubt that interlocutory relief requiring the RMH to maintain Mr Larobina’s current engagement will undoubtedly undermine that interest in circumstances where he stands accused of breaching those standards and has refused thus far to discuss those accusations otherwise than on his own terms.

97    Furthermore, the nature of the accusation that has been levelled against Mr Larobina is not insignificant. He stands accused of having made inappropriate comments about a colleague. It cannot seriously be doubted that the RMH has a legitimate interest—which Mr Larobina’s suspension with pay would plainly serve—in avoiding situations in which accomplished colleagues are expected to interact and work together against the backdrop of unresolved workplace conflict. The potential ramifications of doing so in a working environment like Mr Larobina’s are as obvious as they are significant; and the RMH has an equally obvious and significant interest to protect, upon which interlocutory relief would plainly infringe.

98    Such evidence as there is about the impact that Mr Larobina’s unavailability might visit (whether due to suspension or removal from the “Friday List”) is imprecise and it is difficult to know how much should be made of it. I accept that it would incline the court toward granting interlocutory injunctive relief; but other considerations counter it. The balance, as I have said, is somewhat fine.

99    In any event—and insofar as concerns his causes of action under the FW Act—in the absence of a prima facie case, there is no occasion to indulge Mr Larobina in the form of the relief for which he moves. Taking account of the considerations that guide its exercise, I am not satisfied that the court’s discretion to grant interlocutory injunctive relief should here be exercised.

100    The situation is admittedly more complex insofar as concerns Mr Larobina’s case in tort, in that, although weak, it could not be said that he lacks altogether a prima facie case for the relief that is sought. Nonetheless, given the weakness that is inherent in that case, I consider that more would be required by way of evidence of inconvenience (whether to him or to affected third parties) to justify an exercise of the court’s discretion to grant interlocutory injunctive relief. To borrow from the observation of Woodward J (with whom Smithers and Sweeny JJ relevantly agreed) in Bullock v FFTSA (1985) 5 FCR 464, 472, this is not a case in which a doubtful claim is coupled with a “marked balance of convenience in favour of [injunctive relief]”.

101    The application for interlocutory relief should and will be dismissed. Section 570(1) of the FW Act precludes the court from making any order as to costs, which is likely why none was sought. At least for now, there will be no order as to costs. The matter will be referred to the National Operations Registrar for allocation to a docket judge; and, thereafter, for case management in the usual manner.

Associate:

Dated:    5 December 2024