Avard v Australian Capital Territory

In the case of Avard v Australian Capital Territory, Dr Avard, a specialist in intensive care medicine, brought an action against her employer, the Australian Capital Territory, alleging multiple instances of adverse action under the Fair Work Act 2009 (Cth). The primary issues for determination included whether the employer's actions constituted adverse action as defined by the Act, whether these actions were taken due to the exercise of a workplace right, and whether the employer complied with the principles of procedural fairness as outlined in the relevant enterprise agreement.

The court had to decide whether the employer's actions, including directing Dr Avard to attend an independent medical examination, proposing suspension from duty, conducting an investigation into her alleged misconduct, sending an internal email regarding her absence, and transferring her to an alternative medical position, constituted adverse action under the Fair Work Act. Additionally, the court needed to ascertain whether these actions were due to the exercise of a workplace right and whether the employer complied with the procedural fairness requirements stipulated in the enterprise agreement.

The court found that the employer's actions did constitute adverse action under the Act, as they were not authorised by a law of the Commonwealth and were not taken for a non-unfair work-related reason. The court also determined that the employer did not adequately hear Dr Avard's concerns before initiating the formal investigation, thereby breaching the principles of procedural fairness as outlined in the enterprise agreement. Consequently, the employer's actions were deemed unlawful.

The court dismissed the originating application brought by Dr Avard. If any party wished to seek an order regarding costs, they were required to file written submissions and any supporting evidence by specified dates. The costs question would be decided on the papers unless an oral hearing was deemed necessary.