FEDERAL COURT OF AUSTRALIA

Kavanagh v Atlassian Pty Ltd [2026] FCA 1509

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the Orders made on 2 October 2026 pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), excluding Order 1(e), be extended until further order of the Court.

2.    Order 2 of the Orders made on 8 October 2026 pursuant to s 37AI of the Act be extended until further order of the Court.

3.    The respondents’ application for orders pursuant to s 37AF of the Act be adjourned to be heard by the docket judge.

4.    The first respondent be released from the undertakings provided to the Court on 18 September 2026.

5.    Order 1 of the Orders made on 18 September 2026 not be further extended.

6.    On 48 hours’ notice, the applicant has liberty to apply to the Court for an order restraining the termination of his employment.

7.    The proceeding be referred for allocation to a docket judge.

THE COURT NOTES THAT:

1.    The first respondent has given the following undertakings to the Court:

(a)    The first respondent, by its officers or employees, will not implement any decision to terminate the applicant’s employment or take disciplinary action against the applicant’s employment unless the applicant has been provided with one month’s notice before the implementation of such a decision and subject to the qualification below.

(b)    The first respondent will continue to manage the employment of the applicant including its standard performance management process and engaging with the applicant as part of that process. The second respondent or any other person who is the direct manager of the applicant will be involved in that process.

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

REASONS FOR JUDGMENT

STELLIOS J:

INTRODUCTION

1    This application for interlocutory relief came before me as duty judge. The application was filed by the respondents in this proceeding, Atlassian Pty Ltd (or, the first respondent), and two individual employees of Atlassian. The application was accepted for filing on 2 October 2026.

2    This proceeding has previously been before Kennett J as duty judge in respect of an interlocutory application filed by the applicant on 18 September 2026 (18 September application) seeking interlocutory relief by way of interim injunction pursuant to s 545(2)(a) of the Fair Work Act 2009 (Cth). In broad terms, the substantive proceeding concerns allegations of contraventions by the respondents of the Fair Work Act. His Honour made two sets of orders, the first on 18 September 2026 (18 September orders), and the second on 2 October 2026 (2 October orders).

3    In the 18 September orders, Kennett J (1) ordered that the respondents be restrained from engaging in any of the conduct referred to in proposed order 2 of the 18 September application until 5.00pm, 2 October 2026 or further order, and (2) noted the undertakings given orally by the solicitor for the first respondent not to engage in the conduct referred to in proposed orders 1 and 3 of the 18 September application.

4    In the 2 October orders, Kennett J made interim confidentiality orders under s 37AI of the Federal Court of Australia Act 1976 (Cth) over certain documents pending the outcome of a s 37AF application for final confidentiality and non-publication orders that had been foreshadowed by the respondents at that stage.

5    The 2 October orders also listed the matter for hearing before the duty judge for determination of three issues: (1) the respondents’ foreshadowed application for confidentiality orders, (2) the respondents’ foreshadowed application to be released from the undertaking given on 18 September 2026, and (3) any further extension of the injunction granted in the 18 September orders. The injunction was extended by Kennett J until the earlier of 5:00pm of the day of the listing or 9 October 2026.

6    Both foreshadowed applications (for an order under s 37AF(1) and release from the undertaking) form part of the respondents’ application before me (2 October application). The s 37AF(1) application for final confidentiality orders is sought on the basis of s 37AG(1)(a) of the Act for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), and with a timeframe of until 14 days after the mediation process is terminated or further order of the Court.

7    A hearing was listed before me on 8 October 2026 to deal with the three matters, ahead of which the parties filed brief written submissions. The respondents were represented by counsel, and the applicant appeared in person.

8    For the purposes of the s 37AF(1) application and its proposed duration, it will become important in these reasons to note that, because of the pace at which the interlocutory applications have proceeded in this Court, the matter has not been allocated to a docket judge and no timetabling orders have been made, including an order referring the proceeding to mediation.

9    In support of their application, the respondents relied on the following affidavits:

(1)    Yvette Salem affirmed on 1 October 2026; and

(2)    Talal Tayyab affirmed on 1 October 2026.

10    The applicant relied on an affidavit he had affirmed on 6 October 2026. In respect of his 18 September application, there was a supporting affidavit affirmed on 17 September 2026.

11    At the conclusion of the hearing, noting the time of expiry of the injunction granted on 18 September 2026, I made orders further extending the injunction until further order of the Court. I also made orders extending the duration of the s 37AI interim orders made by Kennett J until further order of the court (although carving out the respondents’ interlocutory application which formed part of the 2 October orders but which the respondents no longer press in its s 37AF(1) application), and additional s 37AI orders covering new material that has since been filed. That new material being the affidavit of the applicant affirmed on 6 October 2026, and the parties’ respective outline of submissions filed ahead of the hearing.

12    In summary, for the reasons that follow, I am satisfied that:

(1)    the interim confidentiality and non-publication orders made under s 37AI of the Federal Court Act should be continued until further order;

(2)    the first respondent should be released from the undertakings offered on 18 September 2026; and

(3)    the restraining order made by the Court on 18 September 2026 should not be extended.

13    The Court also notes that the first respondent has offered an undertaking in relation to dismissing the applicant or taking disciplinary action against him.

PROCEDURAL HISTORY OF THE PROCEEDING

14    More should be said about the procedural history of the proceeding. The originating application, concise statement,18 September application and the accompanying affidavit were filed on 18 September 2026. As indicated, a hearing was listed by the duty judge on the afternoon of 18 September in response to the 18 September application. In broad terms, that application sought three interlocutory orders:

(1)    restraining the first respondent from taking certain steps (identified as (1)(a), (b) and (c)) in relation to the applicant and his employment;

(2)    restraining the respondents from taking certain steps (identified as (2)(a), (b), (c) and (d)) in relation to the applicant and the terms of his employment; and

(3)    requiring the first respondent to take certain steps upon the applicant resuming duties on a specified date (identified as (3)(a) and (b)).

15    For convenience, I will refer to these as proposed orders 1, 2 and 3.

16    While the interim confidentiality and non-publication orders will be continued, it will be necessary to refer to the content of proposed orders 1, 2 and 3, along with other documents subject to those orders, throughout my reasons.

17    The Senior Director of Employment Law (APAC) at Atlassian, Ms Salem deposes that, at 9.23am on 18 September 2026, the applicant served the respondents with the documents filed on that date and that she became aware of the documents at 10.56am. While external solicitors had been instructed in the matter, arrangements could not be made for them to appear at the hearing before the duty judge that afternoon. Ms Salem deposes that, given the circumstances, she was unable to properly review the applicant’s claims, seek responses from the second and third respondents, speak to anyone else against whom allegations were made, or file any material in opposition to the 18 September application. Ms Salem provided verbal undertakings in relation to proposed orders 1 and 3.

18    Those undertakings were recorded in the 18 September orders in the following terms:

THE COURT NOTES:

1. The undertakings given orally by the solicitor for the first respondent not to engage in the conduct referred to in proposed orders 1 and 3 of the interlocutory application filed by the applicant on 18 September 2026 (interlocutory application).

19    The 18 September orders also relevantly contained the following order:

THE COURT ORDERS THAT:

1. The respondents be restrained from engaging in any of the conduct referred to in proposed order 2 of the interlocutory application until 5pm on 2 October 2026 or further order.

20    That injunction was further extended by Kennett J on 2 October 2026 and then by me on 8 October 2026 until further order.

21    Ms Salem’s evidence was not challenged, although the applicant pointed to the failure by Ms Salem to seek an adjournment. I also add that there was no application by the respondents to vary the timetabling orders for the hearing before me.

SECTION 37AF APPLICATION

22    The respondents submitted that an order should be made under s 37AF(1) of the Act in relation to the following documents:

(1)    the originating application;

(2)    the 18 September application;

(3)    the concise statement;

(4)    the applicant’s September affidavit;

(5)    the Tayyib affidavit;

(6)    the Salem affidavit;

(7)    the applicant’s October affidavit; and

(8)    the applicant’s and respondents’ written submissions.

23    In support of orders being made in relation to the entirety of these documents, the respondents relied on the approach adopted in Patterson v Westpac Banking Corporation [2024] FCA 629 (Raper J) (Patterson (No 1)), Saw v Seven Network (Operations) Ltd [2024] FCA 1210 (Perram J); Neve v LVMH Perfume & Cosmetics Group Pty Ltd [2026] FCA 108 (Perram J); and Falco v Zscaler Australia Pty Ltd [2026] FCA 22 (Bromwich J).

24    In each of those cases, orders were made pursuant to s 37AF in relation to the entirety of filed documents, including originating applications, concise statements, affidavits, interlocutory applications and outlines of submissions. In each of those cases, the orders were made pending mediation. In Patterson (No 1), the orders were intended to operate for a few days until the exhaustion of mediation processes: at [24]; in Saw, the mediation was scheduled to take place within two to six weeks of the orders: at [4]; and, in Falco, mediation was required to occur within two months of the orders: at [2]. In Neve, mediation had been ordered on 23 January 2026, but no date had been set when the s 37AF application was heard and determined on 16 February 2026: at [2] and [6]. The s 37AF applicant sought orders until 7 days after the termination of the mediation process. In response, Perram J said (at [6]):

[t]he confidentiality order should not apply for the period sought by the respondent. The mediation date is not yet known and the order as sought would have the excessive effect of allowing the respondent to keep the confidentiality regime in place so long as the mediation process is on foot. The confidentiality order should expire on a specified date and the parties allowed to apply for an extension of that period prior to that expiry if it realistically appears that negotiations are continuing or to allow the parties to apply for post-settlement orders.

25    The orders were specified to apply until the earlier of 30 April 2026 or 7 days after the mediation process was terminated.

26    The circumstances in this case are materially different. Because of the early stage of the proceeding, and the pace at which the interlocutory steps have progressed, an opportunity is yet to arise for the parties to seek an order for mediation. Thus, orders that are tethered to the date of mediation would be premature. Yet, equally, setting a fixed date for expiry would be largely inutile until the proceeding has sufficiently progressed to have some meaningful estimation of a timetable for mediation.

27    There is a further difficulty. While I accept the respondents’ submissions, relying on Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at [17] and [18] (Raper J), that (a) “when determining the necessity of preventing prejudice to the proper administration of justice, account may be taken of the fact that the lack of access to the Court file may enhance the prospects of the parties’ negotiations” (at [17]; see also Patterson (No 1) at [21]), and (b) “[t]here is undoubtedly a very significant public interest in the settlement of proceedings, particularly at an early stage (which is an outcome the Court strives to achieve)” (at [18]; see also Patterson (No 1) at [20]), there have been reservations expressed in this Court about the necessity of including entire documents within the scope of the order without further particularisation: Johnson v H&M Hennes & Mauritz Pty Ltd [2026] FCA 834 at [11]–[12] (Lee J); Berryman v NextDC Limited [2026] FCA 1065 at [19] (Lee J).

28    In Forrest v Commonwealth Director of Public Prosecutions [2026] FCAFC 69 at [68], Lee J said (with Abraham and Vandongen JJ agreeing at [260]):

Part VAA of the FCA Act relevantly provides for the making a suppression or non-publication order in relation to “information that comprises evidence or information about evidence” (s 37AF(1)(b)(i)). Any such order should go no further than suppressing that part of the information or that part of the evidence that is necessary and be formulated with “sufficient particularity to ensure” that the order is limited to achieving the purpose for which the order is made” (s 37AH(5)). It necessarily follows that if it is only necessary to suppress some representations contained in a document, the order should be calibrated to ensure that it is only that part of the document that is the subject of suppression.

29    Counsel for the respondents pointed to the fact that Forrest was a criminal case. That may be so. However, the extracted passage is general in its scope and derived from the basic proposition that suppression orders are “exceptional” (at [65]), referring to the Full Court decision in Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; 294 FCR 101 at 101 [76] (Bromwich, Lee and Thawley JJ).

30    Counsel for the respondents appeared to accept that more calibrated or particularised orders could be proposed in time. However, it was submitted that, because of the embryonic stage of the proceeding, the claimed deficiencies in the pleaded case, and the compressed timetable for the hearing of the s 37AF(1) application, it would not be efficient on an interlocutory application of some urgency for the parties or the Court to rake through the various documents to distil the passages that should be redacted. It was submitted that, in the circumstances, it was necessary to make orders covering the entirety of the documents.

31    I have some difficulty with this position. It is for the moving party to persuade the Court of the necessity of the orders. If additional time were required to particularise the request, an amendment to the timetable might have been sought. Depending on the circumstances, consideration of a s 37AF(1) application might be dealt with effectively by a duty judge. However, in other cases, the determination of the s 37AF(1) application might not be feasible within the confines of the duty system. In my view, this case falls into the latter category, particularly because the proceeding is at an embryonic stage, without an allocation to a docket judge or contemplation of orders for mediation, and because the pleadings might require some further attention. In that latter respect, I am mindful that the applicant is a litigant-in-person who conceded during the hearing that he is not a lawyer or skilled in legal drafting.

32    In my view, in the present circumstances, I do not consider that the s 37AF(1) application is ripe for consideration. It would benefit from further progression of the proceeding in its case management, at least to a position where orders have been made for mediation, if not further orders in relation to the pleadings, and further attention by the respondents to the particularity of the orders sought.

33    Having said that, the failure to make an order under s 37AF may have a detrimental impact on the parties’ desire to mediate the dispute. The practical solution for this conundrum is to adopt the approach suggested by the applicant for the s 37AI interim orders to be extended.

34    While the s 37AF application must be determined “as a matter of urgency” (s 37AI(2)), a requirement that is a particular legislative manifestation of the general statement of intent in s 37AE that a primary objective of the administration of justice is to safeguard the public interest in open justice, the degree of urgency must be informed by the ground under s 37AF that is sought to be relied upon. Where the ground is to enhance the utility of an intended mediation, then some time must be allowed for that process to be put into effect.

35    For these reasons, I consider that the s 37AF application is premature and, instead, I make orders adjourning that application to be heard by the docket judge and extending the operation of the interim orders. In my view, that approach strikes the right balance between ss 37AF and 37AI in circumstances where the ground relied upon for the s 37AF order is yet to crystalise and may be undermined by the premature consideration of the s 37AF(1) application.

RELEASE FROM UNDERTAKINGS AND EXTENSION OF INJUNCTION

36    As Gibbs CJ, Aickin, Wilson and Brennan JJ stated in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981)148 CLR 170 at 178, “[a] court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust”; see also Emergency Flood Response Pty Ltd v Flood Emergency Services Group Pty Ltd [2026] FCA 357 at [14]–[15] (Shariff J).

37    I am satisfied that the circumstances are such that it is appropriate to reconsider whether the undertakings should remain in place. As indicated earlier, Ms Salem has described the circumstances leading to the making of the undertakings. She attended the Court hearing on short notice and without the benefit of making further enquiries. I take the applicant’s point that Ms Salem might have sought an adjournment of the hearing. However, given the circumstances, and the applicant’s acceptance at the hearing that proposed orders 1, 2 and 3 lacked the elegance of a lawyer’s drafting, I do not consider that the first respondent should be held to the undertakings made in good faith to assist the Court.

38    I also accept that the question before me of whether the injunction should be granted must be determined afresh. Kennett J’s order was interim in its nature pending the determination of that question by the duty judge.

39    Thus, in substance, I must determine whether proposed orders 1, 2 and 3 should be made, each of which bears the character of either a positive or negative injunction. In my view, the content of those orders can be reduced to four issues which will be considered in turn:

(1)    Whether an injunction should be made preventing the applicant’s termination;

(2)    Whether the respondents should be prevented from engaging in internal performance management and improvement processes in relation to the applicant;

(3)    Whether the respondents should be required to implement reasonable accommodations for the applicant’s benefit; and

(4)    Whether the respondents can require the applicant to attend one-on-one meetings with the second respondent.

40    The principles to be applied to the granting of an interlocutory injunction are well established. There must be reasonable prospects of success and the balance of convenience must be in favour of granting the remedy.

Termination

41    The first issue reduces to whether there is a real threat of termination that requires restraint. While it is clear from the evidence that the respondents would like to engage in a performance management or improvement process in relation to the applicant, and on the assumption in the applicant’s favour that termination might be a consequence of that process, there is no evidence that termination has been considered or foreshadowed by the respondents:

(1)    Ms Salem deposes that neither she nor the second or third respondent had discussed or considered termination.

(2)    Ms Salem’s evidence is that “the First Respondent does not have any intention at this stage to terminate the Applicant’s employment. Rather, it wishes to continue the process of managing his employment”.

(3)    The second respondent, who is the applicant’s supervisor, and who has commenced a process of performance management, deposes that “at no stage have I made any decision to terminate the Applicant’s employment or otherwise take any step of issuing a warning letter or other disciplinary action. I am also not aware of any other manager at Atlassian having made any such decision”.

42    For his part, the applicant pointed to emails dated 19 August 2026 and 16 September 2026 from the third respondent which the applicant said demonstrated that the first respondent had offered a separation package. However, as counsel for the respondents indicated, a closer read of the documents reveals that the third respondent was responding to a settlement proposal that had been provided by the applicant. The documents elsewhere set out the process for responding to the applicant’s concerns and requests for reasonable accommodations, and indicate that the next step is to engage in a structured performance improvement plan to address performance concerns. That is inconsistent with an inference that the first respondent’s intention was to terminate the applicant’s employment.

43    In the absence of any other evidence to support an inference that the respondents had considered or discussed termination, and with evidence that the intention was to engage the applicant in a performance management or improvement process, I am not satisfied that there is a real threat of termination to justify the making of the injunction to prevent termination.

44    The first respondent has offered the following undertaking:

(1)    that the first respondent will not implement any decision to terminate the applicant’s employment or take disciplinary action against the applicant’s employment unless the applicant has been provided with 7 days’ notice before the implementation of such a decision and subject to the qualification below.

(2)    that the first respondent will continue to manage the employment of the applicant including following its standard performance management process and engaging with the applicant as part of that process, and that the second respondent or any other person who is the direct manager of the applicant will be involved in the process.

45    In relation to the first of these paragraphs, during the hearing I enquired what the termination notice period was under the applicant’s employment contract. There appeared to be agreement that the termination period is one month. I understood from the exchange that the first respondent was prepared to adjust the undertaking to align it with the termination notice period under the employment contract.

46    In relation to the second paragraph, I note the evidence from the respondents that those processes will be engaged in with the intention of supporting the applicant’s continued employment. I also note that some reliance was placed by the applicant on the presumption in s 361(1) of the Fair Work Act in support of his submissions. However, s 361(1) does not apply in relation to orders for an interim injunction: s 361(2).

47    Accordingly, I will note in the orders the undertaking given by the first respondent (with an alteration to the notice period).

Performance management

48    The applicant seeks to restrain the respondents from engaging in a process of performance management or improvement. There appear to be three reasons for that position. First, that an adverse performance rating was recorded on 24 August 2026 in response to a letter of demand dated 7 August 2026 sent by the applicant complaining of certain matters and foreshadowing the commencement of a proceeding in the Fair Work Commission. Secondly, that a retaliatory performance improvement process has been put in place because the applicant refused to accept a voluntary separation offer. Thirdly, that the performance concerns that have been expressed are unaccommodated behavioural or cognitive manifestations of the applicant’s neurodiversity.

49    There are difficulties with these claims on the evidence before the Court at this stage of the proceeding. In relation to the first and second bases, the evidence before me indicates that concerns about performance had been communicated to the applicant before the applicant’s letter of demand of 7 August 2026, at least from 23 April 2026. The applicant appears to (a) dispute the fact that two of the performance meetings took place as claimed by the second respondent; (b) deny that certain supporting documents containing complaints were provided to him; and (c) put the authenticity of those supporting documents into question. He indicated that notices to produce had been served in relation to the supporting documents and invited the Court to draw negative inferences about those documents if they were not produced at the hearing.

50    Rules 20.31 (notice to produce for inspection) and 30.28 (notice to produce at hearing) of the Rules deal with notices to produce. In the event of non-compliance with r 20.31, a party may apply to the Court for an inspection order: r 20.31(3). The obligation to produce under r 30.28 only arises if the notice has been served five days or more before the specified date for production: r 30.28(3).

51    Given that no application has been made to the Court for production under r 20.31, and that the notices to produce were dated 4 October 2026 (the hearing date being 8 October 2026), there are difficulties in the submission that negative inferences should be drawn against the respondents.

52    Further, the evidence before me suggests that there were occasions, other than the disputed ones, where concerns were communicated to the applicant before the letter of demand was sent. In a message to the second respondent dated 8 July 2026, the applicant accepts that at least some concerns had been raised with him, although the precise content of that communication is no doubt in dispute. Further, in the concise statement, the applicant indicates that there was an abrupt change in the second respondent’s posture on 18 May 2026. Ultimately, despite the applicant’s denials and assertions, I did not understand him to dispute that concerns about his performance had been expressed to him earlier than the letter of demand. Equally, even if not communicated to him, there is evidence that concerns were held about the applicant’s performance.

53    In relation to the third basis, as counsel for the respondents submitted, there is no medical evidence before the Court in relation to the applicant’s neurodiversity or its impact on his work performance. Further, it would appear from the evidence before me that no such evidence has been provided to the first respondent.

54    The absence of medical evidence before the Court was acknowledged by the applicant who said that he could only speak to his lived experience. While I acknowledge that his lived experience is not to be discounted, and I would be prepared to accept the applicant’s evidence that he has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), it is difficult on the evidence to draw any confident conclusions about the claimed impact of the applicant’s ADHD on his work practices or how that might correlate with the particular concerns that have been expressed to him about his work performance.

55    In conclusion, I am not satisfied that the respondents should be restrained from engaging in further performance management or improvement processes. As indicated earlier, the first respondent has indicated its preparedness to give an undertaking that it will continue to manage the employment of the applicant including following its standard performance management process. Of course, that process will have to be undertaken in accordance with overarching legal requirements and protections.

56    I also note that the applicant submitted that the adverse performance rating on 24 August 2026 has consequences for his financial position because it has frozen his annual salary and affects the bonuses that he is entitled to receive. In evidence was a statement dated 24 August 2026 from the second respondent to the applicant recording a zero for each of the entries described as “bonus” and “long-term award” for the 2026 financial year. It further indicates that the rating for the 2026 financial year was applied to determine compensation outcomes. In response, Ms Salem and the second respondent depose that the payment of bonuses and increases in salary are at the discretion of the second respondent.

57    There was no evidence before me documenting the first respondent’s bonus scheme. However, it is not necessary for me to consider these disputed claims further because those financial consequences can be adequately compensated by way of damages. Accordingly, I am not satisfied that the proposed order seeking to restrain the performance management or improvement process should be made on the basis that it will have those financial implications. To the extent that the applicant claims that these consequences have “directly precipitated the acute cash-flow shortfall that now threatens [his ability] to maintain compliance” with a monthly financial commitment, there is no evidence before me to support the basis of that claim and such an inference by the Court would be speculative.

58    Nor is it necessary for me to consider further the claim that there will be a loss of stock units upon termination. As mentioned above, I am not satisfied that there has been any threat of termination to this point.

Reasonable accommodations

59    The applicant seeks an order that the respondents comply with reasonable accommodations for his “medical condition/disability” as set out in a document dated 1 September 2026. The applicant deposes that, on 1 September 2026, he attended a videoconference with the third respondent which was conducted within the first respondent’s corporate communications workspace and transcribed by the first respondent’s loom notetaker system. He contended at the hearing that there was agreement, reflected in the terms of the transcript, that reasonable accommodations would be provided. He submitted that the arrangement has operated smoothly without operational disruption.

60    However, even on the applicant’s own evidence, what was agreed to were “interim accommodations whereby primary communications and deliverables would proceed via asynchronous written channels” and that the third respondent “agreed to investigate alternatives to unmoderated one-on-one verbal meetings with the Second Respondent”. Further, as counsel for the respondents submitted, the document referred to by the applicant is not a transcript, but a summary. Indeed, on the face of the document it appears that it (or some aspects of it) have been generated by the use of artificial intelligence (AI).

61    I will not set out the content of that summary in detail. It is enough to say that the following points were included:

(1)    The applicant indicated a preference to avoid one-on-one meetings with the second respondent;

(2)    The third respondent outlined an approach whereby most work would be communicated asynchronously in writing, with the applicant confirming his understanding back to the second respondent if unclear;

(3)    The approach would be a trial that would operate for a period of 4-8 weeks;

(4)    The third respondent would confirm that arrangement in writing after the meeting and clarified the trial period is not a performance improvement process;

(5)    The applicant complained about certain conduct causing psychosocial hazards and the third respondent agreed to investigate;

(6)    That no formal work, health and safety risk assessment had been undertaken by the first respondent at the time of the meeting, but the third respondent agreed to investigate further and assess whether arrangements (avoidance of one-on-one meetings, third-party presence, recordings) are required or whether re-engagement with the second respondent is expected.

(7)    The applicant committed to providing further information for the purposes of investigation and assessment of arrangements.

62    There was some tension in the document as to whether the third respondent had agreed to the arrangements for the trial period or, alternatively, whether he agreed to further consider and investigate those arrangements. At the very least, if arrangements were agreed to, it is reasonably clear that they were in place for a trial period and subject to further investigations and assessment based on further information to be provided by the applicant.

63    On the basis of that evidence, I am not persuaded that there were firm commitments that arrangements were to continue for an indefinite period. Leaving aside the difficulties of relying on an AI summary, the arrangements were to be in place for a trial period, identified vaguely as 4-8 weeks, and subject to further information to be provided by the applicant and further investigation by the third respondent. Regrettably, as events have unfolded, that process has not progressed.

64    Accordingly, I am not persuaded that an order should be made requiring the respondent to put in place the arrangement identified in the relevant document; nor am I satisfied as to the utility and effectiveness of such an order given the imprecision and contingent nature of the arrangements discussed. It would require the Court to be prescriptive about those working arrangements without a firm foundation for the content of the orders, and is likely to result in the ongoing monitoring of compliance by the Court.

One-on-one meetings

65    It is evident from what has been said that the applicant would prefer not to have one-on-one meetings with the second respondent. In proposed order 2, the injunction is expressed in terms of not compelling the applicant to attend “unmoderated” one-on-one meetings with the second respondent. I enquired with the parties what they considered was intended by the word “unmoderated”.

66    Counsel for the respondents pointed to the uncertainty of the scope of the word, along with other imprecision in the drafting, in support of the contention that the proposed orders are uncertain and unworkable.

67    The applicant acknowledged that the drafting of the proposed orders might not have been ideal given his lack of legal training, but that the intention was that he would not be required to meet alone with the second respondent. He contended that he was prepared to meet with the second respondent in the presence of an employee relations staff member, specifically, the third respondent.

68    It is clear from the evidence that the applicant has made a psychosocial hazard complaint that is yet to be internally investigated. The request that one-on-one meetings with the second respondent not occur without the presence of an employee relations staff member has been made, at least in part, because of the psychosocial hazard complaint.

69    However, there are two difficulties with the claim for this interlocutory order. First, it is unclear how the claim for this particular workplace measure is anchored in the applicant’s pleaded case or the final relief he seeks (in his originating application or his concise statement). There is no claim related to a psychosocial hazard, nor any particularisation as to a nexus between the proposed order and the allegations of contraventions of the Fair Work Act. Nor is there any particular claim that the proceeding in this Court would be undermined if the order were not made. In short, it is unclear how the proposed order is referable to the proceeding before the Court. Therefore, it is difficult to conclude that the applicant has made out a prima facie case for relief.

70    Secondly, there is no medical evidence before the Court supporting a claim that unaccompanied one-on-one supervision would have a detrimental impact on the applicant. The applicant deposes that he is currently unfit for work due to acute illness and workplace-induced psychological injury arising from unmitigated psychosocial workplace hazards. While there are medical certificates certifying that the applicant was unfit for work from 3 August 2026 to 23 August 2026 and, again, from 14 September 2026 to 20 September 2026, three of the four certificates do not specify the medical condition resulting in unfitness for work, and the remaining certificate identifies an unrelated medical condition. Accordingly, the prejudice sought to be suffered by the applicant has not been made out.

71    In the absence of a prima facie case or demonstrated prejudice to the applicant, I am not satisfied that an interlocutory order should be made preventing one-on-one meetings between the applicant and the second respondent.

72    Given that the scope of the applicant’s request was clarified by the applicant during the course of the hearing (ie, a request only that one-on-one meetings not occur without the presence of an employee relations staff member, rather than not occur at all), it may be that the first respondent might consider it prudent in the present circumstances for the meetings to be accompanied by such a staff member. However, the applicant has not established a basis for the Court to intervene to impose such a measure on the first respondent.

Other orders

73    For completeness, some aspects of the proposed orders appear to be attempts by the applicant to articulate specific requirements of the Fair Work Act. Some are expressed in uncertain terms. The applicant indicated during the hearing that he attempted to draft orders as best he could as a litigant-in-person. In my view, there is nothing to be gained by superimposing court orders in unclear terms on the requirements and proscriptions set out in the Fair Work Act.

CONCLUSION AND DISPOSITION

74    I am not satisfied that proposed orders 1, 2 and 3 should be made. Accordingly, I am satisfied that the first respondent should be released from the oral undertakings in relation to proposed orders 1 and 3 recorded in the 18 September orders, and that the injunction ordered in the 18 September orders should not be extended.

75    I will also make orders for the proceeding to be referred for allocation to a docket judge. I have recorded as a note to my orders the undertakings proffered by the first respondent in relation to any termination or disciplinary action to be taken against the applicant (with an adjustment to the notice period), and the continued management of the employment of the applicant including following its standard performance management process.

Associate:

Dated:    13 October 2026