Federal Court of Australia

Perry v NetRatings Australia Pty Limited [2025] FCA 1404

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s urgent interim application filed on 6 November 2025 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

Revised from transcript

RAPER J:

1    This is an application for an interim order compelling the respondent, NetRatings Pty Limited (ACN 081 796 287) (known as ‘Nielsen’), to re-instate the applicant, Ms Monique Perry, to her former employment. Nielsen is a data analytics and market research firm that provides measurement and insights into consumer behaviour and media consumption across Australia. Ms Perry’s employment history with Nielsen spans three decades, during which time Ms Perry has held numerous positions, but most particularly as Managing Director from 2013–2020 and most recently as Cluster Leader, Pacific, which itself is described as a managing director position. Ms Perry’s husband, Mr McMahon, was also employed by Nielson and his employment was terminated on 14 October 2025.

2    Neilson alleges that Ms Perry, on or around 24 October 2025, engaged in unauthorised data activity relating to suspicious downloads and uploads of Nielsen files and documentation to an external “cloud account” (the allegations) in breach of her contractual and legal obligations regarding confidentiality and intellectual property. Nielsen conducted a forensic investigation into the allegations and, by letter dated 30 October 2025, directed Ms Perry to return three Nielsen devices for the purpose of the investigation by 31 October 2025. On 31 October 2025, Nielsen terminated Ms Perry’s employment, and asserts that it did so by reason of her failing to return one of the three requested devices (the third device).

3    No pleadings have yet been filed. This proceeding has commenced on an urgent basis for urgent injunctive steps to be taken to reinstate Ms Perry to her former position and the proceeding be expedited. Ms Perry foreshadows that her substantive claim will concern the lawfulness of Neilson’s decision to terminate her employment.

4    There was no dispute between the parties as to the relevant principles which inform whether to grant the relief sought. For an interim reinstatement order to be granted, Ms Perry must demonstrate that there is a serious question to be tried as to whether she is entitled to a final reinstatement order and the balance of convenience favours the making of such an order: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65]-[72] per Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed at [19]); Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited [2009] FCA 726; 184 IR 333 at [21] per Greenwood J.

5    In support of her application, Ms Perry relies on two affidavits of Ms Persephone Stuckey-Clarke, her legal representative, sworn on 6 and 13 November 2025.

6    Nielsen opposes the application on the basis that no serious question to be tried has been established and the balance of convenience strongly favours Nielsen. Nielsen relies on the following four affidavits in support of its position:

(a)    Jacquelyn Martin affirmed on 11 November 2025 and Ex JM-1;

(b)    Jacob Herstek affirmed on 11 November 2025 and Ex JH-1;

(c)    Yu Hin Cheung affirmed 12 November 2025 and Ex YHC-1; and

(d)    Marianne Wells affirmed 12 November 2025 and Ex. MW-1.

7    For the reasons that follow, I am not satisfied that Nielsen should be compelled to re-instate Ms Perry to her former position.

There is a serious question to be tried

8    Ms Perry submitted that she will allege that Nielsen has taken unlawful adverse action against her, namely pursuing the allegations, placing Ms Perry on administrative leave for the duration of the investigation into the allegations (stand down) and terminating Ms Perry. Ms Perry submitted that the allegations and stand down occurred because of Ms Perry’s marital status, being that she is married to Mr McMahon, who himself is engaged in a conflict with the company, on the basis that marital status constitutes a protected attribute under s 351(1) of the Fair Work Act 2009 (Cth).

9    Further, and/or in the alternative, Ms Perry submitted that the termination occurred to prevent Ms Perry from obtaining legal advice, when an extension of time to respond to the allegations had been sought, in relation to the allegations and stand down. On 30 October 2025, Ms Perry requested further time to respond to the allegations (having initially been afforded 6 hours to do so) foreshadowing the intention to obtain legal advice, which is asserted to be a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act: Tran v Kodari Securities Pty Ltd [2019] FCA 968 at [65]. Nielsen agreed to allow her until Monday, 3 November 2025 to respond, but the termination occurred on Friday, 31 October 2025. Ms Perry asserts that the only conceivable explanation for the timing of the termination purportedly for serious misconduct and “with immediate effect” is that Nielsen sought to avoid procedural fairness with respect to the allegations, including by preventing Ms Perry from providing an innocent explanation with respect to the third device, and to prevent Ms Perry from having the benefit of legal advice, each of which would have, according to her, negated the basis for the termination.

10    Nielsen submitted that there is no serious question to be tried for the following reasons. First, Neilson submitted that Ms Perry’s allegation that the alleged forms of adverse action (the allegations and stand down) occurred because of her marital status is misconceived. These adverse actions are said not to relate to her marital status, but alleged to be prompted by her marriage to a “former [Nielsen] employee” “who had made a post-employment claim against the [company]”. It was submitted that by relying upon the specific characteristics and conduct of her husband, rather than her general status as a married person, Ms Perry fails to establish that Nielsen contravened s 351(1) of the FW Act: see e.g., Waterhouse v Bell (1991) 25 NSWLR 99 at 102-105 per Clarke JA; Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13; Bignell v New South Wales Casino Control Authority and Anor (2000) 48 NSWLR 462 at [9] per Sheller JA. As such, there is no serious question to be tried on the first basis.

11    Secondly, Nielsen submitted that Ms Perry’s submission that she was terminated to prevent her from obtaining legal advice in relation to the allegations and stand down in contravention of ss 340(1)(b) and 341(1)(c)(ii) of the FW Act must rejected for two reasons. First, it is not supported by the evidence. In fact, Nielsen had, on 30 October 2025, agreed to provide Ms Perry with further time to seek legal advice about the allegations and stand down. Secondly, in any event, it is submitted that Ms Perry’s asserted right to seek legal advice does not fall within the scope of s 341(1)(c)(ii). The main authorities relied on in support of that proposition are Tran at [65], which refers to Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at [142]-[143], and Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163.

12    As to whether there is a serious question to be tried on the basis of the evidence as it now stands, and upon the bases of the claims put, it is not possible, nor would I be permitted, to come to a final view without the benefit of pleadings, more fulsome affidavit evidence and cross-examination. I accept that the reverse onus is relevant in the assessment of whether there is a serious question to be tried, with reliance placed on the decision of Robertson J in Australian Rail, Tram and Bus Industry Union, NSW Branch v Metro Trains Sydney Pty Ltd [2019] FCA 546 at [46] and the authorities he thereafter identifies. I also accept that there are potential difficulties with the first limb of Ms Perry’s argument and that her claim under s 351 must be directed to marital status, and noting as well that any claim under s 351(1) is curtailed by s 351(2).

13    I also accept that there is likely to be significant argument and the need for precision as to the second claim. The authorities reveal that the assertion of a right to seek legal advice in a vacuum may be insufficient. However, here, there is some evidence, based on what is contained in the allegations letter, namely, that the allegations, if true “constitute a breach of [Ms Perry’s] contractual and legal obligations regarding confidentiality and intellectual property”, that the request for legal advice related to assertions of rights concerning those that underpinned her own contract.

14    For these reasons, it is my view, whilst not a strong case, there is a serious question to be tried as to whether Nielsen engaged in the alleged adverse action for one or more of the prohibited reasons.

The balance of convenience favours Nielsen

15    Having reached this conclusion, it is then for me to consider whether the balance of convenience favours the grant of an interim order for reinstatement.

16    Ms Perry submitted that the balance of convenience also favours the granting of the relief for five reasons. I will consider each of these bases in turn.

Ms Perry’s case is not a strong one

17    Ms Perry relies first upon the purported strength of her case. For the reasons already given, it is my view that, as currently articulated, her case is not a strong one.

Ms Perry’s financial position does not weigh in favour of the order being made

18    Ms Perry submits that if the termination is maintained, it will have a serious, deleterious impact upon her ability to meet her financial obligations, including caring for her dependent children. It is noted that the evidence as to Ms Perry’s circumstances comes from her legal representative. There is information as to the impacts, but without any solid factual base. There is no evidence as to Ms Perry’s financial position. It is undisputed that Ms Perry has held very senior positions and those positions for a long time. There is no specificity as to what the financial impact will be and how wide-ranging it will be. The Court has no awareness of Ms Perry’s ultimate financial position. Whilst it may be accepted that there may not need to be evidence of such particularity, this case is not on all fours with Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074 at [32], nor with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electrix Pty Ltd [2018] FCA 1879, and I am not satisfied, on the evidence as it currently stands, that it is sufficient to weigh in favour of an interim reinstatement order being granted.

There will be difficulty in finding alternative employment and a negative effect on the relief sought

19    The third basis relied upon by Ms Perry in favour of granting the injunction, is that given the length of Ms Perry’s employment and the seniority of her position, Ms Perry will find it difficult to obtain other similar employment, particularly with the litigation on foot: Independent Education Union v Geelong Grammar [2000] FCA 557 at [35]; Toppo v P&J Harris & Sons [2024] FCA 257 at [10]. Further, it was submitted that the appropriateness or practicality of reinstatement is an important consideration in the grant of such relief given by the effluxion of time, such relief will become increasingly impractical and inappropriate: Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602; s 390 of the FW Act. I accept that it is likely to be difficult for Ms Perry to find alternative employment in the circumstances given the longevity of her employment, her seniority and the nature of the allegations made and that, with the passage of time, such relief may become increasingly impractical. These are factors that weigh in favour of granting the interim relief.

The seniority of her position and the nature of the allegations are significant and strong countervailing factors against making the order

20    However, it is my view that the seniority of her position is a significant countervailing factor that goes against making the order, and this is particularly so given the nature of the allegations. I accept the submission of Nielsen that Ms Perry is seeking reinstatement to, in effect, the position of Managing Director – one of the most senior positions in Australia at Nielsen. This factor is compounded by the nature of the allegations made against her. It goes without saying that Nielsen must have trust and confidence in the person holding this role and particularly so given what is required of a person of that standing within an organisation, and the access they necessarily must have to information and control over that information in the discharge of their duties with respect to it. On this basis, coupled with the nature of the allegations, this factor weighs heavily against the granting of the interlocutory relief in Ms Perry’s favour, without having any need to consider the allegations of dishonesty or lack of frankness in the circumstances.

21    This countervailing factor, which I have just adverted to, also is compounded by, on the evidence before me, the likely practical impossibility of re-employing Ms Perry in the circumstances. I also note in this respect that there was evidence before me of the fact that the executive team has given instructions to external counsel to commence proceedings against Ms Perry and Mr McMahon to prevent them misusing data. I do not accept that, with respect to the evidence of Ms Martin, it is of such a speculative nature that it should be given no weight, it does form part of the evidence as to the practical impossibility in this case of reinstatement.

The level of personal and psychological impact will not be resolved until the final resolution of the proceedings

22    Ms Perry submitted that the fourth basis for why the balance weighs in her favour is that, due to the significant length of the employment, there is an increased level of personal and psychological impact of the termination: Metro Trains at [29] and [61]; Electrix at [32]. It is my view, given the nature of the allegations made and the circumstances in which the termination had occurred, that it is likely that any personal or psychological impact that necessarily will have occurred will not be resolved until the final resolution of the proceedings.

It is not appropriate to reinstate Ms Perry and her thereafter be stood down

23    In response to what Ms Perry anticipates may mean that it is practically impossible for her to be reinstated to her position, Ms Perry submits that there is also a possibility for Nielsen not to require her to attend work and to remain stood down: It is notable that such relief has been granted in Toppo, Metro Trains at [60], and Dabboussy.

24    Nielsen submitted that requiring Ms Perry to be reinstated so that she is simply stood down by Nielsen would not amount to reinstatement in the sense classically understood, namely that the power to reinstate is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. The Court notes the authorities that have been referred to by Ms Perry where, in effect, despite the order for reinstatement, the practical reality of what, in fact, was to occur as a result of that order being made was one of standdown, and reference was made to the case of Dabboussy at [36].

25    As to whether the Court has the power to “reinstate” within the scope of its power under s 545(2) depends upon the terms of the order sought and the bases. The Court notes that the Court’s powers as to the orders it may make under s 545 are inclusive not exclusive. Further, the power is not limited to “reinstate”, but also includes the power to make an order “granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention” (s 545(2)(a)). No concluded view need be reached on this occasion in this regard.

26    Here, I am not persuaded, even if there is power, that there will be any real benefit achieved by Ms Perry being reinstated, but, in effect, stood down addressing the practical impossibility of her being able to undertake and discharge her obligations in the circumstances.

Damages will not be an inadequate remedy

27    Ultimately, for the reasons already advanced, I am not satisfied on the evidence that damages will be inadequate in the circumstances. Ms Perry submits that damages will be inadequate by reason of the claimed financial impacts (referred to above) that she will suffer, her length of service and the personal impact of the termination. For the reasons already given, I am not persuaded that damages will not, ultimately, be an adequate remedy.

Conclusion

28    For these reasons, I am not satisfied in the circumstance that the balance of convenience favours the grant of interim relief.

29    To the extent that there was a claim that the matter be appropriately considered for expedition with respect to the prayer for relief in [6(c)] of the application, for the reasons already given, I am not minded to make such an order. Further, I am not persuaded in the circumstances that it is appropriate to make an order for costs under s 570 of the FW Act.

30    I make the following orders:

1.    The applicant’s urgent interim application filed on 6 November 2025 be dismissed.

2.    There be no order as to costs.

Associate:

Dated:    17 November 2025