Alasady v Australian Capital Territory (No 2) - [2023] FCA 966

FEDERAL COURT OF AUSTRALIA
Alasady v Australian Capital Territory (No 2) [2023] FCA 966

File number: ACD 33 of 2022

Judgment of: RAPER J

Date of judgment: 15 August 2023

Date of publication of reasons: 16 August 2023

Catchwords:
INDUSTRIAL LAW – application for an interlocutory injunction preventing the respondents from taking any further disciplinary sanction (including termination of employment) or adverse action against the applicant, within the meaning of s 342 of the Fair Work Act 2009 (Cth) – alleged breaches of the enterprise agreement – whether apprehended bias on the part of the sanction delegate – whether the third respondent has failed to apply the Briginshaw principles to his decision-making task – whether the proposed decision is legally and factually unreasonable and/or disproportionate to the alleged misconduct

PRACTICE AND PROCEDURE – application for interim and interlocutory orders – whether prima facie case – whether the balance of convenience favours a grant of interlocutory injunctive relief – application for interlocutory application dismissed

Legislation:
Administrative Decisions (Judicial Review) Act 1989 (ACT) s 17(2)

Fair Work Act 2009 (Cth)

Cases cited:
Alasady v Australian Capital Territory [2022] FCA 967

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Avant Group Pty Ltd v Kiddle [2023] FCA 685

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Briginshaw v Briginshaw (1938) 60 CLR 336

Liberty Financial Pty Ltd v Jugovic [2021] FCA 607

Rugg v Commonwealth [2023] FCA 179; 323 IR 276

Division: Fair Work Division

Registry: Australian Capital Territory

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 42

Date of hearing: 15 August 2023

Counsel for the Applicant: Mr A Moses SC with Mr S McIntosh

Solicitor for the Applicant: BAL Lawyers

Counsel for the Respondents: Ms K Nomchong SC with Mr H Pararajasingham

Solicitor for the Respondents: ACT Government Solicitor

ORDERS

ACD 33 of 2022

BETWEEN:
MUAYAD ALASADY

Applicant

AND:
AUSTRALIAN CAPITAL TERRITORY

First Respondent

DAVID PEFFER

Second Respondent

IAN MCPHEE

Third Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:
1.The application for interlocutory relief dated 3 August 2023 be dismissed.
2.The costs of and pertaining to the application be reserved.
3.The matter be set down for a case management hearing on 5 September 2023 at 9:30 am.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
RAPER J:

These reasons are given ex tempore given the first respondent has only undertaken not to terminate the applicant’s (Dr Alasady) position for a short period.
By application dated 3 August 2023, Dr Alasady applies for interim relief in the following terms:
1. Prayers 1 to 7 of this Interlocutory Application be returnable instanter.
2.Pursuant to r 9.02(1)(c) of the Federal Court Rules 2011 (Cth), grant leave to add Janet Zagari as a named respondent to the proceedings.
3.Pursuant to s545 of the Fair Work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alasady v Australian Capital Territory (No 2)

Details

AGLC: Alasady v Australian Capital Territory (No 2) [2023] FCA 966
Case: [2023] FCA 966
Decision Date: 15 August 2023

CaseChat Overview and Summary

The applicant, Dr Alasady, sought an interlocutory injunction to prevent the respondents from taking any further disciplinary action or adverse action against him, in accordance with section 342 of the Fair Work Act 2009 (Cth). The dispute arose from alleged breaches of the enterprise agreement, with Dr Alasady asserting that the respondents had failed to particularise allegations of misconduct in writing, as required by the 2021 Agreement. Additionally, Dr Alasady argued that the Commissioner was biased in determining the allegations against him and that the proposed disciplinary action was disproportionate to the alleged misconduct. The respondents, including the Australian Capital Territory and others, opposed the application, contending that Dr Alasady had not established a prima facie case and that the balance of convenience did not favour the grant of an interlocutory injunction.

The court was tasked with determining whether Dr Alasady had made out a prima facie case for interlocutory relief and, if so, whether the balance of convenience favoured the grant of an interlocutory injunction. The court examined the Briginshaw principles to assess whether they applied to the Commissioner's decision-making process. Furthermore, the court considered the proportionality of the proposed sanction, the adequacy of damages as a remedy, and the balance of convenience in granting the injunction. The court also took into account Dr Alasady's employment status and his ability to mitigate potential harm through damages.

In dismissing the application, the court found that Dr Alasady had made out a prima facie case, at least in relation to the proportionality of the sanction. However, the court concluded that the balance of convenience did not favour the grant of an interlocutory injunction. The court noted that damages would be an adequate remedy, Dr Alasady was gainfully employed, and his evidence did not demonstrate why the balance should tip in his favour. Consequently, the application for interlocutory relief was dismissed, and the matter was set down for a case management hearing on 5 September 2023. The costs of the application were reserved, and the court reserved the right to make further orders as necessary.

Orders

Orders of the court

1. The application for interlocutory relief dated 3 August 2023 be dismissed.

2. The costs of and pertaining to the application be reserved.

3. The matter be set down for a case management hearing on 5 September 2023 at 9:30 am.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst I accept that Dr Alasady has offered to give an undertaking as to damages with respect to this matter, I have taken that into account in the balance of the rest of the factors to be taken into account. But, ultimately, it, together with the other factors that I have referred to, does not weigh the balance in his favour, noting that it is my view that (a) damages would be an adequate remedy; (b) an employer is entitled to terminate an employee’s employment subject to the terms and conditions of employment and any other industrial instrument; (c) Dr Alasady is gainfully employed both in undertaking his own private practice and at North Canberra Hospital; and (d) Dr Alasady’s evidence has not demonstrated why the balance is tipped in his favour.Conclusion My conclusion is therefore that, whilst Dr Alasady has made out a prima facie case at least as to the proportionality of the sanction, the balance of convenience in granting the injunction does not weigh in his favour. Accordingly, the application for interlocutory relief is dismissed.

Ratio Decidendi

Legal Principle Established

The second limb, concerning practical consequences, requires the Court to consider factors affecting the balance of convenience. This may be informed by the question of whether damages would be adequate as a final remedy: Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 at [283] per Beach J. Another set of factors that may form a part of the balance of convenience assessment are “the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application”: O’Neill at [72].The parties’ submissions and considerationSerious question to be tried The respondents submit that Dr Alasady has failed to demonstrate a prima facie case. Since my previous interlocutory decision the matter has not progressed beyond the pleading phase. As a consequence, and as is ordinary in interlocutory matters of this kind, an assessment of whether there is a serious question to be tried and where the balance lies, is being undertaken where the Court has not had the benefit of all the evidence and full argument. Dr Alasady submits that there are five bases upon which there is a serious question to be tried. First, Dr Alasady submitted that the 2021 Agreement required allegations of misconduct to be particularised in writing (cl 123.2.1) and if allegations have not been particularised in writing and disciplinary action was taken on the basis of that allegation, this would constitute a breach of the 2021 Agreement. In particular, he alleges that there has been a lack of specificity with respect to the allegations that involve his participation “in verbal attacks, arguments and heated debates with Dr Pathak within the workplace” between mid-2017 and 24 November 2020 (Pathak Allegations). Secondly, Dr Alasady contends that the Commissioner was biased at the time he determined the Pathak Allegations against Dr Alasady for a number of reasons, including that: (a) on 16 March 2023, the Commissioner had notified Dr Alasady of his proposed findings with respect to the Pathak Allegations; (b) before 24 April 2023, the Commissioner had already made a misconduct decision concerning Dr Pathak’s interactions with Dr Alasady; and (c) on 7 June 2023, the Commissioner “effectively” declined to recuse himself, and made a determination concerning Dr Alasady’s conduct. The third contention raised in favour of Dr Alasady’s argument that he has a serious question to be tried is that he submits that there is a dispute as to whether the principles outlined in Briginshaw v Briginshaw (1938) 60 CLR 336 applied to the Commissioner’s decision-making task and that, nonetheless, it is arguable (on Dr Alasady’s contention) that those principles did apply given the Commissioner was required to make findings of misconduct that could result in Dr Alasady’s dismissal. Fourthly, Dr Alasady also submits that the proposed sanction decision is not proportional to the misconduct, which constitutes a breach of cl 125 of the 2021 Agreement, and is otherwise legally and factually unreasonable, including by reason of by reason of there being a reasonable apprehension of bias arising with respect to Ms Zagari.

File number:	ACD 33 of 2022
Judgment of:	RAPER J
Date of judgment:	15 August 2023
Date of publication of reasons:	16 August 2023
Catchwords:	INDUSTRIAL LAW – application for an interlocutory injunction preventing the respondents from taking any further disciplinary sanction (including termination of employment) or adverse action against the applicant, within the meaning of s 342 of the Fair Work Act 2009 (Cth) – alleged breaches of the enterprise agreement – whether apprehended bias on the part of the sanction delegate – whether the third respondent has failed to apply the Briginshaw principles to his decision-making task – whether the proposed decision is legally and factually unreasonable and/or disproportionate to the alleged misconduct PRACTICE AND PROCEDURE – application for interim and interlocutory orders – whether prima facie case – whether the balance of convenience favours a grant of interlocutory injunctive relief – application for interlocutory application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1989 (ACT) s 17(2) Fair Work Act 2009 (Cth)
Cases cited:	Alasady v Australian Capital Territory [2022] FCA 967 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Avant Group Pty Ltd v Kiddle [2023] FCA 685 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Briginshaw v Briginshaw (1938) 60 CLR 336 Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 Rugg v Commonwealth [2023] FCA 179; 323 IR 276
Division:	Fair Work Division
Registry:	Australian Capital Territory
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	42
Date of hearing:	15 August 2023
Counsel for the Applicant:	Mr A Moses SC with Mr S McIntosh
Solicitor for the Applicant:	BAL Lawyers
Counsel for the Respondents:	Ms K Nomchong SC with Mr H Pararajasingham
Solicitor for the Respondents:	ACT Government Solicitor

ORDER MADE BY:	RAPER J
DATE OF ORDER:	15 AUGUST 2023