Federal Court of Australia

Dr Zabortseva v Commonwealth of Australia as represented by the Australian Public Service Commission (No 2) [2026] FCA 662

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application contained in her emails of 13 and 15 May 2026 for a variation of the orders made on 8 May 2026 is dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MEAGHER J

1    This hearing heard on 22 May 2026 arose in the context of the substantive proceeding, which is an application for an extension of time and for leave to appeal against a decision of this Court.

2    On 6 May 2026, a case management hearing was heard before me at which I made programming orders for the matter to proceed to a hearing on 11 June 2026. The orders were subsequently superseded by orders made in Chambers on 8 May 2026, which extended some of the deadlines for certain material to be filed.

3    Among those orders was the following order:

The Court notes the Respondent’s undertaking that it will not take any steps to progress the Code of Conduct process that has been commenced against the Applicant, including progressing the requirement that the Applicant attend an independent medical examination, be extended until such time as the applicant’s application for an extension of time to appeal is dealt with, or until further order.

4    This order was in substantially the same terms as Order 8 of the orders of the primary judge made in the proceeding below on 28 February 2025. At the case management hearing on 6 May 2026, the applicant had also sought an order that pending the determination of the appeal in this proceeding, or until further order, the respondent be restrained from taking any steps to terminate the applicant’s employment. I did not make an order in those broad terms.

5    Between 13 and 15 May 2026, the applicant wrote to the Court Registry seeking that a case management hearing be convened in relation to, in her words, “a request for non-termination of my employment in connection with my temporary relocation to my family’s accommodation”. The applicant proposed that the following order be made:

6A. The Court notes the Respondent’s undertaking that, until such time as the Appellant’s application for an extension of time to appeal is dealt with, or until further order, the Respondent will not terminate the Applicant’s employment by reason of the Applicant’s temporary relocation to her family’s accommodation, including as referred to in the warning concerning relocation contained in the Respondent’s letter dated 16 March 2026 (Annexure A5 to the Applicant’s affidavit filed 20 March 2026).

(Original emphasis.)

6    The applicant supported her allegation of a “threat” of termination on the basis of a letter from the Respondent dated 16 March 2026 which was annexed to her affidavit filed 20 March 2026. That letter referenced the applicant considering relocating to Kazakhstan, and noted that:

(1)    The applicant’s ongoing engagement is subject to standard conditions, including a requirement to attend the Australian Public Service Commission’s Canberra office, and to hold a baseline security clearance.

(2)    If the applicant took an action that prevented her from meeting these requirements, or from complying with a lawful and reasonable direction associated with her employment, this may result in an action being taken, up to and including termination under the Public Service Act 1999 (Cth).

(3)    Whilst the applicant had been directed not to attend her workplace, the respondent expected that following the conclusion of this proceeding, she would be directed to attend an independent medical assessment in person in Canberra.

(4)    Further, Commission-issued work devices cannot be taken overseas when travelling.

7    The respondent opposed the applicant’s proposed order.

8    At the hearing, the applicant submitted, among other things, that she wanted protection from the termination threatened by the respondent. She stated that in circumstances where she was not being paid by the Commission, she had found a solution by moving to her parents’ home temporarily. In the light of the alleged threat of termination, the applicant submitted that she was being “treated as a slave”.

9    The respondent at the hearing opposed the proposed order on the basis that:

(1)    The information provided to the applicant in the letter of 16 March 2026 is not relevant to the proceeding at first instance or on the prospective appeal. At first instance, the independent medical assessment and code of conduct processes were pleaded as adverse actions, and are issues before the Court. By contrast, the present issue is not, and should not be subject to an order of the Court.

(2)    Further, the information with respect to the potential implications of moving overseas, on the fulfilment of the essential requirements of the applicant’s role, constituted the Commission appropriately putting the applicant on notice, rather than notifying her of a threat or consideration of any steps to terminate her employment.

(3)    Any decision about the applicant’s security clearance as a result of her relocation would be a matter for the Australian Vetting Agency, and is not within the respondent’s control.

(4)    Finally, if the applicant’s proposed order were made, this would effectively allow her to act with impunity with respect to her broader employment obligations.

10    In reply, the applicant stated that the respondent was effectively cutting her off from her family ties, and putting her in a difficult situation by not paying her, whilst simultaneously not allowing her to relocate to family accommodation. She reiterated her submission that she was “being treated as a slave” and submitted that she was not asking for termination to be restrained at large.

11    Whilst it may be accepted that the applicant’s position in this circumstance is inconvenient to her, in the sense that she feels she is unable to relocate to potentially more affordable or convenient accommodation pending the determination of this proceeding, some of the applicant’s submissions went far beyond the evidence and mischaracterised her situation. I consider that the respondent’s submissions in opposition to the proposed order should be accepted. The proposed orders do not arise out of the issues subject to the substantive application for an extension of time and leave to appeal. I also do not think that the material relied on rises to the level of a threat of termination as submitted by the applicant. Finally, while I accept that the applicant was not, in terms, seeking orders preventing the respondent from terminating her wholesale, I consider that the effect of these proposed orders would effectively prevent the respondent from exercising certain rights it has to terminate the applicant on the basis of the policies it has set in place to regulate its workforce, should such termination be justified.

12    While couched as an application for urgent relief, no formal application for an interlocutory injunction was made. Even so, taken at its highest, the applicant would be required to show a prima facie case, in the sense of there being a “sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial”, that the applicant is likely to suffer injury for which damages will not be an adequate remedy and that the balance of convenience favours the grant of interim relief: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19] (Gleeson CJ and Crennan J).

13    In this case, even had a formal application been made, I am not satisfied that the applicant has established a prima facie case given the nature of the correspondence which she relies on.

14    On these bases, I am not minded to grant the proposed order sought by the applicant.

15    The usual position is that costs do not apply in this jurisdiction under s 570 of the Fair Work Act 2009 (Cth), however if the parties wish, they may make submissions as to whether the usual position applies to this case, of no more than three pages.

Associate:

Dated:    22 May 2026