Sherlock v State of Queensland (Queensland Health)
[2025] QIRC 296
•31 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Sherlock v State of Queensland (Queensland Health) & Anor [2025] QIRC 296 |
| PARTIES: | Sherlock, Susannah v State of Queensland (Queensland Health) AND |
| CASE NO: | GP/2025/33 |
| PROCEEDING: | Application for injunction |
| DELIVERED ON: | 31 October 2025 |
| HEARING DATE: | 15 August 2025 |
| MEMBER: | Caddie IC |
| HEARD AT: | Brisbane |
ORDER: | The application for an injunction is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – INJUNCTION – Application for an injunction – where Applicant seeks to restrain Employer from taking any adverse action against her until the case is heard – where Applicant contends workplace rights were exercised – where Applicant contends receipt of a non-disciplinary warning constituted an adverse action – where Applicant has made Public Interest Disclosures – where Applicant seeks to rely on workplace rights contained within Enterprise Agreement - prima facie case – balance of convenience – application dismissed. |
| LEGISLATION AND INSTRUMENTS: | Crime and Corruption Act 2001 (Qld) Directive 05/23 Discipline cl 4.8 Human Rights Act 2019 (Qld) ss 15, 31, 48 Industrial Relations Act 2016 (Qld) ss 282, 284, 285, 306, 451, 473, 474 Medical Officers (Queensland Health) Certified Agreement (No. 5) 2018 cl 5.1, 5.2 Public Interest Disclosure Act 2010 (Qld) s 20 Public Sector Act 2022 (Qld) s 131 |
| CASES: | Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134 Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk [2023] FCAFC 163; (2023) 300 FCR 170 Dalley v Kelsey [2018] ICQ 6 Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255 Hawea v State of Queensland (Queensland Health) [2021] QIRC 8 Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623 Kelsey v Logan City Council (No. 8) [2021] QIRC 114 Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Quest Security Services Pty Ltd (2006) QIRC 113 (2006) 183 QGIG 632 Morgan v State of Queensland (Queensland Health) [2020] QIRC 184 Scott v State of Queensland (Queensland Health) [2022] QIRC 488 Shercliff and Another v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 Whittaker Brothers v Australian Timber Workers Union (1922) 31 CLR 564 |
| APPEARANCES: | Dr S. Sherlock, the Applicant in person. Mr P. M. Zielinski of Counsel, instructed by B. Dwyer for the First and Second Respondents. |
Reasons for Decision
The Applicant, Dr Susannah Sherlock ('Dr Sherlock') is employed within Metro North, Hospital and Health Service as a part time Staff Specialist in Anaesthetics and has lodged a general protections claim pursuant to s 285 of the Industrial Relations Act 2016 (Qld) ('the IR Act')
Dr Sherlock sought urgent injunctive relief to prevent any adverse action being taken by the Respondent State of Queensland (Queensland Health) ('Queensland Health') and the other named Respondent Mr Stephen Eaton (Chief Operating Officer for Metro North Hospital and Health Service) ('Mr Eaton') against Dr Sherlock in her employment.
Procedural History
On 11 July 2025, Dr Sherlock filed a General Application in the Industrial Registry, alleging that adverse action had been taken against her by Mr Eaton and Queensland Health. The conduct said to constitute adverse action was a non-disciplinary warning dated 12 June 2025 directed to Dr Sherlock, received on 13 June 2025.
A telephone conference was held before me on 21 July 2025 to ascertain the particulars of the application. It was explained by Dr Sherlock that the application sought to invoke the general protections contained in Chapter 8 of the IR Act.[1] It was also requested by Dr Sherlock that the request for an injunction be dealt with by way of urgent hearing.[2]
[1] T1-4 ll 43-45 from the Mention on 21 July 2025. Having previously been given a 'B' matter type (reflecting the application for injunction), I issued an order pursuant to s 539(e) of the Industrial Relations Act 2016 (Qld) vacating the B matter and causing the matter to be given a 'GP' matter type to reflect it was a general protections application.
[2] T1-15 ll 2-5 from the Mention on 21 July 2025. Queensland Health gave an undertaking no further action would be taken against Dr Sherlock pending determination of the present application.
Directions were issued for the parties to file all submissions and affidavit evidence they intended to rely on at the interlocutory hearing.
The application for injunctive relief was heard on 15 August 2025. That is the subject of this decision.
Background
There is a complex factual background dating from 2019 that is said by the Applicant to have led us to the substantive general protections claim and the present matter of injunctive relief. Having reviewed the submissions and affidavit material currently available to the Commission I consider the relevant facts and legal questions to be decided at this stage are much more confined and arguably less complex.
Dr Sherlock has sought to rely on purported breaches of the general protections provisions in the IR Act to underpin the present application for urgent injunctive relief. Injunctive relief is sought pursuant to s 473 and s 451 of the IR Act. I will deal with this issue first.
Basis of the power to grant injunctive relief
Section 473 of the Act confers upon the Commission the power to grant injunctions as follows:
Power to grant injunctions
(1) On application by a person under section 474 the commission may grant an injunction—
(a) to compel compliance with an industrial instrument, a permit or this Act; or
(b)to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act; or
(c)the commission considers appropriate for the prevention or settlement of an industrial dispute involving allegations of sexual harassment or sex or gender-based harassment.
…
(9) The Commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.
Dr Sherlock's application falls within the scope of s 473 (1)(b) where she seeks to restrain or prevent the Respondents from 'further adverse actions', including reliance on the warning she submits is adverse action within the meaning of s 282 of the IR Act.
Dr Sherlock additionally seeks the injunction be granted pursuant to s 451(2)(b) of the IR Act.[3] Section 451 sets out the general powers of the Commission as follows:
[3] Submissions of the Applicant, filed 23 July 2025, [1].
451 General Powers
(1) The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2) Without limiting subsection (1), the commission in proceedings may –
(a)give directions about the hearing of a matter; or
(b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c) make an order it considers appropriate.
…
Queensland Health submitted that doubt exists as to the capacity of this provision to encompass the grant of interlocutory injunctions.[4] They pointed to Morgan v State of Queensland (Queensland Health), where Merrell DP opined that s 451 'only' confers power on the Commission to do things necessary or convenient in the performance of a specific function under the Act, and is 'not a source of substantive power to grant an injunction.'[5]
[4] Submissions of the Respondent, filed 8 August 2025, 5.
[5] [2020] QIRC 184, [25].
I agree. Dr Sherlock's claims should properly be assessed against the specific provision from which power to grant injunctive relief in the manner sought by the Applicant resides. No explanation was provided about the addition of the general power in any material filed by the Applicant to be relied upon at Hearing or in submissions made at the Hearing itself. I will not consider this aspect of the application any further. The decision in the present matter is based on the required considerations pursuant to s 473 of the IR Act.
The relevant IR Act provision underpinning the claim
The protection at the heart of the claimed contravention in this matter is contained within s 285 of the IR Act (emphasis added):
285 Protection
(1)A person must not take adverse action against another person —
(a)because the other person —
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person
Note —
This subsection is a civil penalty provision.
…
Vice President O'Connor in Gilbert v Metro North Hospital Health Service set out the elements required to establish a breach in substantive general protections matters related to the protection in s 285 (citations omitted):[6]
[11] The general protections scheme under the Industrial Relations Act 2016 (the IR Act) protects employees from adverse action taken against them by their employer because they have exercised or not exercised a workplace right or proposes to exercise or not exercise a workplace right.
[12] The Applicant must establish that the action taken was "adverse action" within the scope of s 282 of the IR Act (which substantially mirrors s 342 of the FW Act). Section 282 of the IR Act relevantly provides…
…
[6] Gilbert v Metro North Hospital and Health Service & Ors [2021] QIRC 255.
[19] The prohibition in s 285 of the IR Act is aimed at the protection of workplace rights. The relevant prohibition in s 285(1)(a) is that a person must not take adverse action against another person because the other person has a workplace right or has/has not exercised, or proposes/proposed to exercise or not to exercise, a workplace right.
[20] The Respondents submit that three central concepts arise: "workplace right", "adverse action" and the taking of adverse action "because" of one of the prohibited reasons.
Workplace Right
[21] Section 284(1) of the IR Act defines "workplace right" (in essentially identical terms to s 341 of the FW Act):
284 Meaning of workplace right
(1) A person has a workplace right if the person -
(a)has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b)is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c) is able to make a complaint or inquiry -
(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
(ii) if the person is an employee – in relation to his or her employment.
[22] Under Schedule 5 to the IR Act, industrial law is defined to mean: (a) this Act; (b) or another Act regulating the relationships between employers and employees.
[23] The purpose of the prohibition in s 291 of the IR Act is to protect a person from adverse action taken because the person is/is not, or was/was not, an officer or member of an "industrial association"; or engages/does not engage or proposes to engage/not engage in "industrial activity" within the relevant meaning of the term.
[24] With respect to each alleged instance of adverse action, the Applicant must establish that:
(a)the alleged workplace rights which are relied upon fall within the scope of s 284 of the IR Act (as only workplace rights under s 284 of the IR Act are captured by the general protections regime); and
b)the Applicant exercised the workplace rights relied upon in the way alleged (as the Applicant bears the onus of establishing the factual existence of the circumstances which are alleged to have been the reason for taking the alleged adverse action).
I set this out, not for the purpose of suggesting that this is the case that must proved by the Applicant in the present matter but because it is relevant to my consideration of the applicable principles to be applied in determining whether the injunction should be granted in the circumstances of a general protections claim. I set those principles out now.
Principles guiding the grant of injunctions
In Dalley v Kelsey,[7] his Honour Martin J adopted the following principles espoused by the High Court in the important case of Australian Broadcasting Corporation v O'Neill (citations omitted):[8]
[65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief…The second inquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from the observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
'How strong the probability needs to be depends, no doubt, upon the nature of the rights the [plaintiff] asserts and the practical consequences likely to flow from the order he seeks'.
[7] Dalley v Kelsey [2018] ICQ 6.
[8] Ibid [27], citing Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ).
As a first enquiry, I am required to determine whether the Applicant has established a prima facie case – a sufficient likelihood of success to justify in the circumstances the preservation of the status quo. This is based on an assumption of the evidence remaining as it is.
The role of the Commission is described in Shercliff and Another v Engadine Acceptance Corporation Pty Ltd as follows:
…is not to conduct a preliminary trial of the action; nor to resolve any conflict between the parties' evidence, and to grant or refuse the application upon the basis of such findings; but rather, having taken the defendant's evidence into account, to determine whether the plaintiff has, nevertheless, made out a prima facie case.[9]
[9] Shercliff and Another v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729.
The reverse onus that is a feature of general protections provisions if certain preconditions are met, [10] does not apply to orders for an interim injunction.[11] This fact does not preclude the existence of reversal of the onus being taken into account at this stage in considering whether a serious question to be tried has been demonstrated.[12]
[10] Industrial Relations Act 2016 (Qld) s 306(2).
[11] Ibid s 306(3).
[12] Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590 [17] (Collier J); Dalley v Kelsey [2018] ICQ 6, [46] (Martin J).
The second enquiry is a balancing exercise weighing the injury or inconvenience that would be caused to the Applicant if the injunction were refused against the injury to the Respondents if the injunction were granted. The decision maker ought not speculate about the evidence that would be adduced at a final hearing.[13]
[13] Dalley v Kelsey [2018] ICQ 6; [27], [35]-[36] (Martin J).
When considering the matter, it should be kept in mind that the question of prima facie case and whether the balance of convenience favours the grant of relief are 'related inquiries', and the 'apparent strength' of the substantive case constitutes an important consideration in weighing the balance.[14]
[14] Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590, [13] (Collier J).
Relevant factual background
LinkedIn posts
It is not contested that Dr Sherlock's LinkedIn page, which identifies her as an Anaesthetist and Hyperbaric Medicine Specialist, features posts by her about various complaints made regarding patient safety and descriptions of her perception of the handling of these complaints by relevant entities.[15] The LinkedIn posts contain commentary on Commission processes, public interest disclosures, investigation flaws and tactics, and references to various challenges for whistleblowers within her direct experience and in other organisations not directly relevant to her. The posts relate to Dr Sherlock's own experience and that of her husband.
[15] Affidavit of Stephen Eaton, filed 8 August 2025, Exhibit SE-1.
Metro North Health Service response to LinkedIn posts
The Affidavit of Amy Punch, Principal Advisor Workforce Relations for MNHHS, sets out that on 12 May 2025, Workplace Relations were advised by email from an employee of Metro North ('the other employee'), who is an individual respondent in other matters prosecuted (or advocated) by Dr Sherlock, of concerns that the LinkedIn posts breached confidentiality directions,[16] and were causing the other employee mental harm.[17] The complaint by the other employee expressed concern that Dr Sherlock appeared to make these comments with impunity despite being subject to the confidentiality direction that prevented the other employee from directly responding. The letter of complaint was attached to the affidavit along with examples of the posts.[18]
[16] Affidavit of Stephen Eaton, filed 8 August 2025, [8]; Affidavit of Amy Punch, filed 8 August 2025, [6].
[17] Affidavit of Amy Punch, filed 8 August 2025, 4.
[18] There is no reason to reproduce the posts within this Decision. There is no dispute that the posts were made by Dr Sherlock. Dr Sherlock's characterisation of the posts is relevant to the present matter.
Ms Punch's affidavit states she undertook discussion with the Acting Chief People and Culture Officer on 13 May 2025 regarding the LinkedIn posts. These discussions determined that issuing a non-disciplinary warning to Dr Sherlock in respect of the LinkedIn posts was the appropriate path forward.[19]
[19] Affidavit of Amy Punch, filed 8 August 2025, 4 -5.
A draft non-disciplinary warning was prepared and cleared by Ms Punch on 20 May 2025 and sent to Mr Eaton for approval on 6 June 2025.[20]
[20] Affidavit of Stephen Eaton, filed 8 August 2025, SE-1.
On 31 May 2025, an article reporting on allegations made by Dr Sherlock, as a whistleblower, related to the Royal Brisbane and Women's Hospital hyperbaric unit was published in the Australian Newspaper. Ms Punch added a paragraph into the draft non-disciplinary warning letter that clarified consideration of the response to the LinkedIn posts had occurred prior to the publication of the article and any response to the article would be considered separately.[21]
[21] Affidavit of Amy Punch, filed 8 August 2025, [17].
The final version of the non-disciplinary warning letter was approved by Mr Eaton and issued to Dr Sherlock on 12 June 2025.[22]
[22] Ibid 5.
Dr Sherlock's interview with the Australian Newspaper
In May 2025, Dr Sherlock engaged in an interview requested by a journalist for the Australian. The interview discussed the concerns held by Dr Sherlock about the alleged failure of Queensland Health to investigate the safety concerns raised in a PID about non-compliant gas outlets and afford Dr Sherlock procedural fairness in subsequent investigations.[23]
[23] Schedule 1 of Application of Dr Sherlock filed 11 July 2025, 5.
The affidavit of Mr Eaton filed 8 August 2025, explained that he had 'skim read' the article when it was published on 31 May 2025 as it was included in the daily distribution list from the Media Office of Queensland Health.
Dr Sherlock has consistently submitted, including in the immediate response by correspondence to Mr Eaton and others on 13 June 2025, the interview was given pursuant to section 20 of the PID Act.[24]
[24] Affidavit of Stephen Eaton, filed 8 August 2025, SE-3.
Particulars of the non-disciplinary warning
The warning letter received by Dr Sherlock was framed in the following terms:[25]
[25] Ibid SE-2.
Dear Dr Sherlock,
I am writing to you as I have recently received information about posts made by you on Linkedin.
Please be aware that consideration of this correspondence was in progress in advance of the article in the Australian, published online on 31 May 2025. I note that article, among other things, contains patient information and Metro North Health will consider whether any steps need to be taken in relation to that and other issues regarding the article.
Lawful directions issued on 13 September 2022
As you know, on 13 September 2022, Adjunct Associate Professor Jackie Hanson, Metro North Hospital and Health Service's (Metro North Health) Chief Executive wrote to you about complaints you had raised and issued you with lawful directions…
In the Chief Executive's correspondence, you were advised:
The Investigation is a confidential process. Further, information disclosed as part of your PID and related to your PID (including your identity, [Dr Sherlock's husband's] identity, and the identities of those against whom your PIDS were made) are 'confidential information' under the PID Act (Confidential Information).
In the same correspondence the Chief Executive issued you with the following lawful directions:
Confidentiality
You are directed to keep confidential the details of the Investigation and the Confidential Information. You must not make comments regarding those matters on social media or discus those matters with your work colleagues or any person likely to have information relevant to those matters.
PID issues
As explained in the beginning of this letter, some of the information provided in relation to the Complaints and Investigation has been deemed a PID under the PID Act. You are directed to behave appropriately towards any person who has provided information in respect of this matter or who may be a witness to any of [the] relevant matters in issue. It is unlawful to take reprisal action under the PID Act. A reprisal occurs when a person causes, or attempts or conspires to cause, detriment to another person because of a belief that a person has made or intends to make a public interest disclosure.
The Chief Executive also informed you that should you fail to comply with these lawful directions, you may be liable for disciplinary action pursuant to section 187(1)(d) of the Public Service Act 2008 (Qld). Please note that this legislation has now been superseded by section 91(1)(d) of the Public Sector Act 2022 (Qld); however, this does not affect the validity of the lawful directions issued to you on 13 September 2022.
Information posted on Linkedin
I understand you have a profile on Linkedin, which is a social media platform for professional networking, and you are active on LinkedIn. The lawful directions were not and are not intended to stop you from making or commenting on social media posts. However, as was made clear by the lawful directions, you must keep information about the Investigation and Confidential Information, as defined in the Chief Executive's correspondence, confidential. Further, you were informed that information about the public interest disclosures is confidential under the Public Interest Disclosure Act 2010 (Qld). On this basis you were directed to not post about the Investigation or Confidential Information online.
Despite the lawful directions, I am informed that you have made social media posts about the Investigation and Confidential Information on LinkedIn. Your LinkedIn posts have been read as a whole, however…I have drawn out the offending sections of your posts in the table enclosed at Attachment 2…
Non-disciplinary warning
It is my view that the LinkedIn posts set out in Attachment 2 contravene the directions issued to you by the Chief Executive in their correspondence dated 13 September 2022, because they are posts made about the Investigation and Confidential Information.
I acknowledge that many of your posts express your personal views about your experience and that the delays have been difficult for you. However, this does not dissolve your responsibility as a Metro North Health employee to act with integrity and maintain your confidentiality obligations.
I acknowledge that you have several claims that are on foot in the Queensland Industrial Relations Commission (QIRC), and you may be able to refer to the Investigation and Confidential Information during those proceedings, where it is relevant to your claim. However, this does not mean it is appropriate for you to publicly reference the Investigation and Confidential Information on platforms such as LinkedIn. For clarity, my concern is not that you post about your experiences with the QIRC, but rather that you go a step further and draw in the Investigation and Confidential Information when expressing your personal views about unresolved claims.
I have decided to issue you with a non-disciplinary warning. You are warned that you must not contravene, without reasonable excuse, the lawful directions issued to you by the Chief Executive on 13 September 2022. You should note this warning is not considered as disciplinary action against you; however, should you contravene the lawful directions in the future then this warning may be relied upon when determining whether you are liable to discipline under the Public Sector Act 2022 (Qld).
Lawful directions
…
… you must comply with the Code of Conduct for the Queensland Public Service at all times.
You are reminded that the lawful directions issued to you on 13 September 2022 continue to apply to you. You should be mindful of the lawful directions when posting on LinkedIn, or any other social media platform.
Additionally, you are required to cease making disparaging comments about the integrity of Metro North Health, or its employees, online, including on social media platforms, such as LinkedIn. Please remove all posts on social media platforms that contain information about the Investigation and Confidential Information.
Support
I understand that receiving this letter may be challenging and would like to assure you that I am committed to the wellbeing of all parties. Dr Elizabeth Rushbrook, Chief Medical Officer, Metro North Health, remains available to discuss supports with you…Additionally, Metro North Health has a free, confidential counselling service…
Human Rights Assessment
I acknowledge that my decision to issue you with a non-disciplinary warning and lawful directions may impact and potentially limit your human rights including the right to freedom of expression.
However, in my view, any limitation is demonstrably justified. This is because it is in the public interest to ensure that public sector employees comply with the lawful directions issued to them and maintain the confidentiality of public interest disclosures. I consider that this outweighs the limited potential impact on your human rights at this time.
Dr Sherlock submitted the warning is a 'formal written warning' that 'constituted a reprisal under the PID Act, as well as adverse action under the IR Act'.[26] In her affidavit Dr Sherlock attested that the warning was issued shortly after participating in a media interview that disclosed the safety concerns and alleged misconduct previously raised:
…in accordance with her obligations as a public service officer under the Public Interest Disclosure Act 2001 (Qld), the Crime and Corruption Act 2001 (Qld), and the Queensland Health Code of Conduct.
[26] Application filed 11 July 2025, Schedule 1, 5.
The warning letter itself and the implied potential future action in response to the media interview it contained were the impetus for Dr Sherlock's substantive claim and for urgent injunctive relief.
In the substantive matter the final relief sought is an apology, a retraction of the warning, cessation of intimidation for making a lawful disclosure to the media, mandatory PID training for specified roles and damages due to stress of exercising a mandatory obligation to report safety concerns and corrupt conduct.
The orders sought in the present matter are:
An order restraining the Respondents from taking further adverse action including reliance on the warning dated 13 June 2025.
An order preserving the Applicant's position pending resolution of the general protections Application.
Any other order the Commission deems appropriate.
I will now consider the case for injunctive relief.
Prima facie case
The case stated by the Applicant: Adverse Action and Workplace Rights
Dr Sherlock bears the burden of establishing there exists a serious question to be tried.
The prima facie case argued by Dr Sherlock is that the written warning letter (and the embedded 'implied threat') constituted adverse action taken against her due to the exercise of a number of workplace rights. Dr Sherlock said that the injunction is necessary to preserve the status quo until the general protections claim can be heard and determined in due course.[27]
[27] Submissions of the Applicant, filed 23 July 2025, 1.
Adverse Action
The IR Act sets out the meaning of adverse action as follows:
282 Meaning of adverse action
(1) Adverse action is taken by an employer against an employee if the employer—
(a) dismisses the employee; or
(b) injures the employee in the employee's employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
(2)…
(3) …
(4) …
(5) Adverse action includes—
(a) threatening to take action covered by subsections (1) to (4); and
(b) organising to take action covered by subsections (1) to (4).
(6) Adverse action does not include action that is authorised under—
(a) this Act or any other law of the State; or
(b) a law of the Commonwealth.
The non-disciplinary warning is said by Dr Sherlock to constitute an adverse action that has injured her in her employment. The application asserted the alleged adverse action caused Dr Sherlock to suffer 'professional harm, distress and reputational damage at a time when [Dr Sherlock] [was] advocating in multiple court civil cases…'.[28] In affidavit evidence, Dr Sherlock outlined that the warning 'caused significant personal distress and professional harm. I have suffered psychological injury, sought medical support and been involved in multiple concurrent legal proceedings'.[29]
[28] Application filed on 11 July 2025, Sch 1, 6.
[29] Affidavit of Susan Dawn Sherlock, filed 23 July 2025, [7].
Dr Sherlock relied on s 282(1)(b), explaining that the warning letter had injured her in her employment as having a warning on her record was 'undoubtedly' detrimental:[30]
I'm relying upon section B, which is … injures the employee in the employee's employment. Having a warning put onto your record is undoubtedly something that is detrimental to an employee, and being – feeling that you are being intimidated and harassed, having made a public interest disclosure, is in itself a detriment to somebody. It does injure the employee, and I'll come to that because it's clearly described as to what the effects on an employee are under the Metro North's own policy for harassment and how – what the effects are on employees. So I’ll come back to that.
[30] T1-16 ll 26-34.
To be considered adverse action within the meaning of the IR Act, the incident or event ought to injure the applicant in their employment or alter their position to their detriment.[31] In relation to 282(1)(b) and as outlined above, this depends on whether the employee can show, judged objectively, that they are in a worse position in their employment than prior to the action being taken. Dr Sherlock submitted that the warning constituted adverse action because it was:[32]
issued in a manner that interfered with her access to justice, silenced concerns raised in the public interest, and exacerbated ongoing legal harm to the Applicant's family…
…issued by Mr Eaton and was expressly framed in threatening terms. Mr Eaton acknowledged the distress it would cause and offered counselling support services.
[31] Gilbert v Metro North Hospital Health Service [2021] QIRC 255.
[32] Submissions of the Applicant, filed 23 July 2025, 2.
These statements do not specify how the warning is said to interfere with her access to justice or public interest concerns. On the evidence before me the non-disciplinary warning repeats the terms of the 2022 Direction that excluded material or information required in other proceedings and social media commentary not in conflict with that Direction. It is also not specified how the articulated harms injure Dr Sherlock in her employment. The conditions from the 2022 Direction restated in the 12 June warning letter already applied.
Further, the paragraph in the warning letter acknowledging potential distress and offering access to support is a standard inclusion in correspondence of this nature and cannot reasonably be relied upon as an admission by the signatory that the action is adverse within the meaning of s 282 of the IR Act.
Given the non-disciplinary warning was a confidential document between Dr Sherlock and her employer, Dr Sherlock has not articulated the 'professional harm and reputational damage' that has emanated from her receiving the letter on 13 June 2025.
While this matter is procedurally at its start, and this is an application for interlocutory orders, it would be reasonable to expect that a more precise articulation of the injury to Dr Sherlock's employment, said to have arisen from the warning letter could be provided. The lack of particularisation does not tend towards the establishment of prima facie case on this threshold question.
The material provided by Dr Sherlock, including submissions made at Hearing, lead me to consider that the purported injury in her employment arising from the letter related more to the implied warning of future potential action associated with the Australian article rather than the non-disciplinary warning arising from the alleged breach of the earlier direction related to confidential information and social media posts.
I consider the following extract supports this view (emphasis added):
That is a protected disclosure. So anything that I get after that in terms of an adverse warning even that causes intimidation to me at a time whilst I'm advocating in court has repercussions, and a warning letter is one of the first steps to further action, and the implication that was put in the warning letter specifically mentioned The Australian, which – that article was specifically about a public interest disclosure. Now, the warning letter itself was not for that; it was for the LinkedIn post. But the warning letter implied that further action may be taken on that one. The warning letter was given and framed in a way that definitely put me on notice that I could have another letter coming in relation to The Australian – that was implied – and that it may be more serious because it was separated out. It was not part of the non-disciplinary warning, but it was mentioned in that letter. That does raise intimidation, to my mind. [33]
[33] T1-18 ll 15-26.
This submission from the Applicant also demonstrated an understanding of the different status of a non-disciplinary warning. The non-disciplinary warning received by Dr Sherlock is a type of management action not issued pursuant to a concluded disciplinary process.[34]
[34] Directive 05/23 'Discipline' provides at cl 4.8 that 'discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.' See also Hawea v State of Queensland (Queensland Health) [2021] QIRC 8, where Merrell DP treated non-disciplinary warnings issued to the Appellant in that case as management action. Similarly, in Scott v State of Queensland (Queensland Health) [2022] QIRC 488, Pidgeon IC distinguished non-disciplinary warnings issued to the Appellant from disciplinary processes.
Dr Sherlock argued that a warning is one of the first steps to further action and refers approvingly to the decision of Pratt IC in Queensland Teachers Union of Employees v Tafe Queensland in which he summarises federal jurisprudence on formal warnings constituting adverse action and concludes that, in his view, a warning 'will almost always' constitute adverse action as it alters the employee's position to their detriment.[35] While each case obviously turns on its own facts, Dr Sherlock asserted that any warning must constitute an adverse action within the meaning of s 282(1)(b) of the IR Act, even where, as in this case, no disciplinary warning has been issued.
[35] [2024] QIRC 159, [55].
The facts in this case are distinguishable from the Queensland Teachers Union of Employees v Tafe Queensland and the authorities cited within,[36] that deal with warnings issued pursuant to a formal disciplinary process. Dr Sherlock herself acknowledged that difference as referenced in paragraph [49] of this decision.
[36] [2024] QIRC 159.
Dr Sherlock also referred to the direct reference to possible formal disciplinary processes contained within the non-disciplinary warning letter to argue the threat of formal disciplinary action is an adverse action designed to intimidate.
The letter stated:
You are warned that you must not contravene, without reasonable excuse, the lawful directions issued to you by the Chief Executive on 13 September 2022. You should note this warning is not considered as disciplinary action against you; however, should you contravene the lawful directions in the future then this warning may be relied upon when determining whether you are liable to discipline under the Public Sector Act 2022.
The 2022 Direction letter also contained a statement that failure to comply with the lawful direction may cause Dr Sherlock to be liable to disciplinary action pursuant to the Public Service Act 2008.[37] The 12 June warning letter restated the requirement to comply with the 2022 Direction, updated the reference to the PS Act and stated the warning may be relied upon in a future process. It is future non-compliance with the direction that would trigger a process pursuant to the PS Act and Directive. That would be the case for any employee in those circumstances. It is not articulated how this injured Dr Sherlock in her employment. Any future process following conduct alleged to have breached the Direction would need to comply with the PS Act and Discipline Directive and would include rights of appeal.
[37] As this was issued prior to the advent of the Public Sector Act 2022 (Qld).
There is a strong theme running through the submissions of the Applicant that her ongoing employment security has been injured: the warning is just the first step and the harbinger of things to come. Her main concern is protecting her standing as an applicant and advocate in proceedings. These arguments are particularly relied upon in relation to the questions of balance of convenience that I will come to later in this Decision.
A loss of job security would constitute an injury to Dr Sherlock's employment. The evidence before me in this proceeding demonstrates Dr Sherlock is not subject to any disciplinary action arising from the LinkedIn posts or the Australian article. The affidavit evidence of Ms Punch further attests Metro North has no intention of initiating disciplinary action against Dr Sherlock for the Australian interview:[38]
I have not been further involved in dealing with the article published in the Australian newspaper on 31 May 2025. However, through further discussions with Mr Bourke, I understand that Metro North Health does not intend to take any action against Dr Sherlock in relation to that Australian article, because Dr Sherlock has said that she understands her obligations about confidential information.
[38] Affidavit of Amy Punch, filed 8 August 2025, [21].
The general harms relied upon by the Applicant in this proceeding do not sufficiently articulate how the confidential warning letter has injured Dr Sherlock in her employment – professionally or reputationally. The arguments relating to interference with justice do not explain how Dr Sherlock has been injured in her employment, particularly given the warning letter contains the same carve out for proceedings that have been in place since 2022.
Dr Sherlock finally argues that the warning is adverse because it is based on a Direction that has no legal effect. Dr Sherlock contended in an affidavit sworn 23 July 2025 that the use of the 2022 direction to justify the warning in 2025 was unreasonable and inconsistent with the stated purpose of protecting the integrity of an investigation that 'had long concluded'.[39]
[39] Affidavit of Susan Dawn Sherlock, filed 23 July 2025, [6].
At Hearing, Dr Sherlock explained further her contention that the 2022 direction should no longer apply:
To use the direction that was given to me back in 2022 by the CEO that I was to keep everything confidential whilst the investigation commenced was entirely unfair when the investigation went on for years then finished; still no outcome for years. It can't possibly apply that confidentiality remains in place when the actual thing that I’d raised as the PID had never been part of the investigation at all.[40]
…
[40] T1-20 ll 46-47 – T1-21 ll 1-5.
The Respondent contended the Direction by its terms made clear it was not just for the purpose of the investigation but also in relation to the Confidential Information including protection for all involved, as required by the PID Act. The extent of the confidentiality requirements was limited to those explicitly stated in the direction itself.[41]
[41] Affidavit of Stephen Eaton, filed 8 August 2025, SE-1.
A dispute about whether it was reasonable for the non-disciplinary warning to have relied upon an alleged contravention of the earlier Direction is not material to whether a prima facie case has been made out that the warning itself constituted adverse action by injuring Dr Sherlock in her employment.
Workplace rights
Section 284 sets out the definition of 'workplace right' as follows:
284 Meaning of workplace right
(1) A person has a workplace right if the person—
(a)has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b)is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c) is able to make a complaint or inquiry—
(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
(ii) if the person is an employee—in relation to the person's employment.
(2) In this section—
industrial body means—
(a) the commission; or
(b)the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers.
Dr Sherlock identified two grounds to establish the existence of workplace rights directly linked to the issuing of the warning letter.
The first was that the media interview constituted a protected disclosure pursuant to the Public Interest Disclosure Act 2010 ('PID Act'). The second was that workplace rights pursuant to the Medical Officers Certified Agreement ('MOCA') were simultaneously and/or separately exercised.
Public Interest Disclosures
The PID Act provides a framework for 'disclosers' to make protected public interest disclosures ('PIDs') to relevant authorities.
Section 20 of the PID Act outlines the circumstances in which a disclosure to the media will constitute a PID. Dr Sherlock has consistently characterised the interview she provided to the Australian as a protected disclosure under the PID Act:[42]
She was issued an implied warning days after a media interview (where a protected PID was made lawfully) and linked directly to a formal written warning pertaining to commentary on LinkedIn, with no reference to her clinical performance but with express mention of the media and online posts.
[42] Submissions of the Applicant, filed 23 23 July 2025, 2.
Dr Sherlock further outlined this part of her claim at Hearing:
Okay, so obviously as the applicant in this setting, I have claimed that I have exercised a workplace right under section 284 of the IR Act, and I have raised an adverse action claim for the point – for the purposes of this interlocutory application. I made disclosures in accordance with the Public Interest Disclosure Act, and that is – as a law of the state,[43] it confers some duties and protections on employees via my employment contract. The Commission has jurisdiction on being able to give remedy to an employee under the IR Act because reprisal is effectively framed as an adverse action for exercising a statutory right. Now, the remedies are available by statute, including the Public Service Act and the Public Interest Disclosure Act, and they don't preclude access to a remedy by another route. I have chosen this route because I think it is the fairest route in circumstances where the Public Interest Disclosure legislation has been fully acknowledged to be not fit for purposes in terms of protections. [44]
…
The second thing I did was I was asked by a media person, who is doing a series on investigative journalism, to make commentary about whistleblowers in health, and I took the disclosure which I had given to Metro North, to the executive, to the integrity unit, to the CCC, back to the CEO, the thing was to do with the gas management, which was my original PID. That, as I said, I still maintain, has never been independently investigated…[45]
Now, if a matter under the Public Interest Disclosure Act has not been either investigated, or you have not been given an outcome – and in – both those cases apply in this particular instance – I have the legal right to make that disclosure to the media so long as it is exactly the same disclosure that I'd given…it is now legally protected and considered a public interest disclosure in and of itself as a separate PID. It is lawful because I made it in a lawful way…[46]
[43] There is no reference in the definition of workplace right that captures law of the state – industrial law is the stated requirement. There may be confusion with reference to law of the state contained within the adverse action definition where it is stated that adverse action does not include action authorised by the IR Act or other law of the state.
[44] T1-15 ll 22-34.
[45] T1-17 ll 41-46.
[46] T1-18 ll 4-10.
Dr Sherlock further argued at Hearing that a causal nexus existed between the PID made by way of media interview and the warning letter, which she characterised as intimidating:[47]
Now, the protections that I have under the IR Act under section 285 say that a person cannot take – must not take adverse action against another person because they have exercised a workplace right, and making a public interest disclosure – because it is affected by the code of conduct and my MOCA 5, it's protected as – if you see something that is not safe and you make a complaint and you raise it, that is protected under – you know, I have the right to raise serious concerns. My concerns are not so much about the seriousness of the original PID. It was all of the actions that came after that: the attempts to cover up, the attempts to not let the external investigator investigate it, to keep it in-house, to keep it quiet.
Now, I had the right to raise that as an ongoing issue quite separate to the actual issue that first came up, the fact that it was covered up and not addressed. And if I've exercised that workplace right and then I get a warning letter for having done so, which specifically says,
"You made media statements to The Australian, and we're still looking at that" – they made reference to the Privacy Act,[48] which doesn't actually – as I understand it, Privacy Act is for organisations. It doesn't apply to individuals. But, nonetheless, it was very intimidating for me to receive that letter.
[47] T1-18 ll 15-45.
[48] There is no reference in the letter itself to the 'Privacy Act'.
In Kelsey v Logan City Council (No 8), his Honour Vice-President O'Connor considered the relationship between the PID Act (and the Crime and Corruption Act 2001(Qld)) and the IR Act and considered whether the making of a public interest disclosure constituted the exercise of a workplace right for the purposes of the IR Act.[49] He concluded (emphasis added):
[35] For the following reasons, I accept that s 13(2) of the LG Act is an industrial law. However the PID and CC act are not industrial laws for the purposes of the IR Act. Whilst each piece of legislation imposes obligations upon either an employee or an employer, neither Act seeks to regulate the relationship between employees and employers.
…
[54] There is nothing within the Objectives of the PID Act or in ss 13 or 17 which suggests that the conferral of entitlements and obligations is referrable to the regulation of employment. By designating a public officer as being a person who has a right to act against any other person pursuant to ss 13 and 17 of the PID Act cannot constitute those sections as being an "industrial law" as defined, nor can action taken in reliance upon those sections properly be construed as being a role or responsibility, or the commencement of a proceeding, under an "industrial law".
[55] In order for a law to answer the description as an industrial law, it must have as its object the regulation of the relationship between employers and employees. That focuses attention on the purpose of the regulation contained within the relevant statute.
[49] [2021] QIRC 114.
Queensland Health submitted at Hearing that, given the PID Act does not constitute an industrial law for the purpose of the IR Act, Dr Sherlock's contention that the media interview was an exercise of a workplace right must fall away.[50]
[50] T1-33 ll 20-25.
In reply to this submission, Dr Sherlock stated the following at Hearing:[51]
So it's – that – whilst the – I admit the industrial – the Public Interest Disclosure Act itself is not an industrial piece of legislation. I have never claimed it is. What I said was the Industrial Relations Act is, and the MOCA is part and parcel and covered under – if I have an employment dispute as to the fact that my employer says, "You must report," and then when you report, you get victimised for doing it – I think that is reason enough to say this is definitely under the IR Act…
[51] T1-37 ll 14-19.
It is well settled that the making of Public Interest Disclosures is not the exercise of a workplace right. The Applicant's evidence as it currently relies on PIDs as the causal link to adverse action is insufficient evidence of a prima facie case that the protection in s 285 is enlivened. To be enlivened there must be an identified 'workplace right' as defined.
Dr Sherlock acknowledged at Hearing that the PID Act is not an industrial law but asserts it comes within the jurisdiction of the IR Act by virtue of the "employment contract" and the Enterprise Agreement that provides for and requires health and safety concerns and misconduct to be called out.
The only pathway for the Applicant to claim the interview with the Australian was a PID is the specific provision within the PID Act. The PID Act is not an industrial law for the purposes of enlivening the definition of workplace right within the IR Act. The MOCA provisions the Applicant seeks to rely on to allow the interview to be simultaneously a PID and a workplace right do not confer any apparent right for the complaints or grievances to be made to a journalist. The Applicant has not provided any evidence to identify where it does so. The Respondent has also drawn the Commission's attention to authorities for the proposition that generally, complaining to the media is not the exercise of a workplace right.[52] At Hearing, the Respondent articulated the following relevant principles from the decision of the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) vQuirk:[53]
…it's not enough to just engage with media. It's not enough … one can't seek redress in respect of workplace rights from the media or the world at large. One can only seek redress for the workplace rights or grievances from an employer…And that's not to say it can't be – … a complaint has to be tied to employment in a coherent sense rather than this amorphous suggestion that it's sufficient to generally agitate employment matters via social media, and, therefore, that is protected by the Industrial Relations Act. [54]
[52] Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk [2023] FCAFC 163;[53] Ibid.
[54] T1-33 ll 47; T1-34 ll 1-6.
For these reasons, in relation to the Australian interview, I consider the evidence as currently before me does not demonstrate sufficient likelihood that the interview could constitute an exercise of a workplace right to warrant the grant of an injunction.
Workplace Rights under the MOCA Agreement
Dr Sherlock argued the MOCA 5 Agreement separately conferred relevant workplace rights:
In respect to the workplace right… I do have a workplace right. It's under my MOCA 5 Agreement…The MOCA 5 is protected – the EB…13…which is the protections from harassment in the workplace, are MOCA protected, so that gives me the statutory instrument by which to bring an adverse action claim.[55]
[55] T1-16 ll 4-11.
The relevant clauses of MOCA 5 were identified by Dr Sherlock as follows:[56]
·Clause 5.1 as providing a 'workplace right to raise concerns relating to workplace harassment and safety';[57]
·Clause 5.2 as affirming the rights of medical officers to raise workplace health and safety concerns. [58]
[56] While of no consequence I note Dr Sherlock referred to MOCA 6 in Submissions but clarified at Hearing the relevant EBA was MOCA 5: see T1-16 ll 4 -11.
[57] Application filed 11 July 2025, 3.
[58] Application filed 11 July 2025, 3.
These clauses are reproduced in full below:
PART 5 – WORKPLACE HEALTH AND SAFETY, WORKLOAD MANAGEMENT AND FATIGUE RELATED MATTERS
5.1 Workplace Bullying
5.1.1 Queensland Health recognises that workplace bullying is a serious workplace issue which is not acceptable and must be eliminated.
5.1.2 All employees have the right to be treated fairly and with dignity in an environment free from adverse behaviours such as intimidation, humiliation, harassment, victimisation, discrimination and bullying.
5.1.3 Schedule 3 refers to the Workplace Harassment Policy, Human Resources Policy E13. This is a preserved policy under this Agreement.
5.2 Workplace Mental Health
Queensland Health recognises the importance of a mentally healthy workplace. Queensland Health aims to integrate health, safety and wellbeing for mental health into the workplace and to demonstrate commitment at every level to a mentally healthy workplace. Where required, programs and strategies will be developed to demonstrate this commitment.
Dr Sherlock also points to Queensland Health E13 policy, arguing it is incorporated into MOCA and 'mandates that employees must report bullying and safety concerns, and protects those who raise such complaints from victimisation'.[59] Dr Sherlock identifies cl 7.2 as providing a cause of workplace harassment can be 'powerful cliques' and references cl 7.3 as setting out the consequences of workplace harassment, arguing these apply to her situation as advocate for her husband.[60]
Does the MOCA Agreement confer a workplace right to report bullying and safety concerns by LinkedIn Posts?
[59] Application filed 11 July 2025, 3.
[60] T1-19 ll 42-47.
The MOCA 5 Agreement is said by Dr Sherlock to confer rights and obligations on employees to report misconduct or 'call out' workplace issues, such as bullying and misconduct. Dr Sherlock argued the posts made on LinkedIn constituted an exercise of such rights provided by the MOCA Agreement such that the warning letter constituted adverse action.
The question is whether Dr Sherlock has demonstrated a sufficient likelihood of success around her contention that the MOCA 5 Agreement conferred a workplace right that includes the posts made on LinkedIn.
At Hearing, Dr Sherlock described the content and tone of the LinkedIn posts as 'social commentary' relating to various experiences:
I'd made some social commentary on LinkedIn, and they were generally broad statements of facts, things that had either happened to me and that I had been exposed to during five years, basically, having raised a public interest disclosure to management in the first instance, escalating it to integrity, escalating it to the CCC, seeing it devolve back to the CEO and then seeing it being carved out of an investigation so the main thing I had been concerned about had never been investigated…[61]
So the LinkedIn posts talked about general things about how the policies in place for large organisations often do not protect people, and they were not linked to any particular organisation. I made commentary on the post office scandal in the UK. I made commentary on the QPS and their integrity processes. I made wide-ranging commentary on legislative changes that were required to protect whistleblowers. I made specific commentary about the personal angst of having a family member who had been injured as a consequence to the mishandling of a public interest disclosure. None of those named any person. None of them were defamatory. They were based in truth, where I’d made affidavits and brought on court cases which are on foot. I never named any particular individual, but I did make reference to how people are treated when they become a disclosure. And in those references, I made commentary about delays as a tactic and, specifically, DARVO techniques, which have been used in many discrimination proceedings, where the person first denies that anything happened then attacks the credibility of the person who's raising an issue and then reframes the entire thing as the object – the victim is now – and the offender are now changing in place.[62]
[61] T1-16 ll 35 – 41.
[62] T1-17 ll 13- 28.
Given the description provided by Dr Sherlock of these posts it is not evident how they are said to establish the exercise of a workplace right pursuant to the clauses in the EBA relied upon.
While making a complaint or lodging a grievance to her employer consistent with the nominated provisions in her EBA would in all probability constitute a workplace right, these EBA clauses do not provide any apparent right to raise those complaints via LinkedIn posts, and in the form of general social commentary.
I sought clarification from Dr Sherlock about this at Hearing:[63]
COMMISSIONER: What is the workplace right that is evidenced through the LinkedIn posts?
APPLICANT: The workplace right in the LinkedIn posts are to advocate for safety in the hospital. It's related to the public interest disclosure. There's nothing in the LinkedIn post that doesn't go towards legislative changes and public interest disclosures and mechanisms of, like, procedural fairness in investigative things, especially when they pertain to – so that is all part and parcel of the same thing because it relates to the public interest disclosure itself that was first raised and elements of it. The injury was a reprisal. The – my husband I'd been reported as being discriminated against as a reprisal six months before the actual injury itself.
His injury occurred in circumstances where he was threatened that if he got a job, there would be an appeal, and that was his last day at work.
There was lots of people present when he was told to shut up when he raised safety concerns. None of those witnesses were interviewed despite the fact I gave a list of who said what when and who the witnesses were, as we are all told to when you have something happen at work that is, you know, a major incident, where people are yelling at people and getting upset in the workplace. So we documented it and gave it to Metro North. The integrity unit investigator had that information, and she declined to interview a single person that was at that handover where my husband was threatened. Two weeks later, he was in hospital.
[63] T1-25 ll 37-47 – T1-26 ll 1-11.
I consider this response did not clarify why Linkedin posts would be captured by these provisions as an exercise of a workplace right under the Enterprise Agreement.
In response to this contention, the Respondent pointed out that a complaint related to a person's employment ought to be 'founded on a source of entitlement' and are not able to made at large.[64] The Respondent underscores that s 284(c)(ii) does not encompass making a complaint to the media.[65] In making the posts, the Respondent characterises Dr Sherlock as seeking a platform on which to publicise grievances rather than seeking redress or relief.[66]
[64] Submissions of the Respondent, filed 8 August 2025, [33], citing Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284 at [1], [37], [74]-[80].
[65] Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk [2023] FCAFC 163;[66] Submissions of the Respondent, filed 8 August 2025, [33], citing Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk [2023] FCAFC 163; (2023) 300 FCR 170 at [47] and [339].
Dr Sherlock's reliance on clauses 5.1 and 5.2 of the MOCA Agreement is characterised as misplaced by the Respondent. They say that Dr Sherlock has not explained which complaint, grievance or disclosure constituted an exercise of the alleged workplace right. To the extent that Dr Sherlock is asserting that the disclosure to the Australian newspaper was underpinned by cl 5.1 or 5.2 or HR Policy E13, the Respondents say that none of these provisions confer an unqualified right to complain to the world at large, and submit that cl 5.2 does not feature a right to complain at all.[67]
[67] Submissions of the Respondent, filed 8 August 2025, [36].
Link between workplace right and adverse action
In general protections claims, a causal connection must be demonstrated between the claimed adverse action and claimed workplace rights. The adverse action was taken because there was a workplace right.
The central thrust of Dr Sherlock's case is the non-disciplinary warning was adverse action taken because she exercised workplace rights to make a complaint to the Australian and to similarly agitate those issues through LinkedIn:
The temporal proximity between the protected disclosure to media and the issuance of the outcome letter and the warning letter, in which it was mentioned, along with its content referring to the applicant's commentary on LinkedIn, gives rise to a strong inference of retaliatory intent.[68]
[68] Affidavit of Susan Dawn Sherlock, filed 23 July 2025, 3.
In affidavit evidence,[69] Dr Sherlock outlined the causal link between the exercise of workplace rights and the alleged adverse action as follows:
2. I have made disclosures regarding gas safety and procedural failures in accordance with my obligations as a public officer under the Public Interest Disclosure Act 2010 (Qld), the Crime and Corruption Act 2001 (Qld), and the Queensland Health Code of Conduct.
3. I was issued a formal warning on 13 June 2025, shortly after participating in a media interview that disclosed those safety concerns and alleged misconduct.
4. The warning made specific reference to the media disclosures and online commentary regarding matters I had raised with oversight bodies including the CCC, WorkCover and the QIRC.
5. The warning was signed by Mr Stephen Eaton, who also authored a letter finalising an internal investigation just two days earlier. The investigation outcome failed to address the substance of my complaints, including the gas incident and psychological injury to my husband ...
[69] Affidavit of Susan Dawn Sherlock, filed 23 July 2025.
The Respondent denied that the warning letter was issued because of the media interview or because Dr Sherlock exercised any workplace rights. Instead, affidavits deposed by Ms Punch and Mr Eaton attested that the non-disciplinary warning letter was being prepared prior to the publication of the article. The documentary evidence attached to the sworn affidavits support this contention, as does the reference to the media interview in the warning letter itself.
The non-disciplinary warning letter related to the LinkedIn posts made by Dr Sherlock. The other employee of Queensland Health who feared they could be reasonably identified by the LinkedIn posts and who harboured concerns about breaches of the 2022 confidentiality direction had raised concerns with Ms Punch, alerting Queensland Health to the existence of the LinkedIn posts.
Dr Sherlock made the following statements at Hearing that described the complaint made by the other employee as the trigger for the warning letter she received (emphasis added):
… [the other employee] – you know, he's taken a very personal view of wide-ranging social commentary of tactics that people use, and he was never named … it was all his personal angst with me that has been put to Mr Eaton that triggered this entire outcome …, but was because he took issue with the fact that he was humiliated, thinking that I had reframed things, …. That is a step too far. There was nothing that I said that named anybody. I have multiple jobs. I never even mentioned Metro North or Queensland Health. I’ve – and so I left it out there as to which job. There was no defining mention of any individual or anything beyond general commentary. [70]
…
The issue that [the other employee] has taken that created this problem was simply because he did not like the fact that I was still making a lot of noise about the accountability of a serious breach of safety that occurred in 2019, which has never been properly investigated and which I lawfully raised as a public interest disclosure.[71]
[70] T1-17 ll 31-39.
[71] T1-23 ll 30-33.
Queensland Health characterised Dr Sherlock's statement as an admission that 'this is not really a general protections claim at all':[72]
What Dr Sherlock said was that [the other employee's] complaint to the Metro North workplace relations team triggered this entire outcome, and in the outcome she's obviously referring to the warning or the non-disciplinary warning. That is not an allegation that adverse action was taken against her because of any workplace rights she had or had exercised. She plainly accepts that The Australian article was an intervening event, and, really, at the heart of what Metro North was doing was responding to a genuine complaint from [the other employee] in respect of some comments that Dr Sherlock was making on LinkedIn…
[72] T1-27 ll 36-43.
The submissions from Dr Sherlock at Hearing acknowledged the complaint made by the other employee led to the issuing of the warning letter in relation to the LinkedIn posts. This aligns with the direct evidence of Ms Punch and Mr Eaton and the documentary evidence provided.
The evidence, if it were to remain as it is, does not support a prima facie case that the non-disciplinary warning issued about the LinkedIn posts was because Dr Sherlock's making of the posts was the exercise of a workplace right. Both parties acknowledge the trigger for the warning letter was the complaint by the other employee.
The temporal proximity between the Australian article and the 'implied warning' within the warning letter was considered above. Again, Dr Sherlock's own submissions made clear she understood the non-disciplinary warning letter was in relation to the LinkedIn posts and the inserted paragraph was to indicate there was further consideration to occur about the more recent Australian interview, prior to any further action being proposed or taken.
Conclusion on prima facie case and reversal of onus
[100]The existence of reversal of onus in the substantive proceedings may be considered in the context of prima facie case. The reversal of onus may assist the Applicant at trial if she is able to meet the necessary preconditions to its engagement.
[101]Martin J agreed with Greenwood J in CPSU v Blue Star Pacific Pty Ltd about the effect of the presumption in s 306 in Dalley v Kelsey:[73]
[73] [2018] ICQ 6, [46].
In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application. The presumption cannot be determinative of the interlocutory application but its operation in the context of the trial is relevant to the strength of the probability of success at trial.
[102]At trial:
…direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…[74]
[74] Ibid [49] citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (French CJ and Crennan J).
[103]Applying the above approach to the evidence available in this case at this interlocutory stage, there is affidavit evidence from the decision maker and Ms Punch outlining reasons for the issuing of the non-disciplinary warning. The initiating factor is identified as the complaint received from the other employee about the LinkedIn posts that were considered to breach the 2022 Direction and a later amendment being made to reference the Australian article to clarify it was not before them when the decision was being made. As outlined earlier in this decision the documentary evidence and the submissions of the Applicant at Hearing also tend to support this account.
[104]If the evidence were to remain unchanged at the hearing of the substantive matter then it is possible that Queensland Health could discharge its onus under the IR Act.
[105]For the reasons I have set out above, and for the purposes of this interlocutory application, the evidence is insufficient to demonstrate a prima facie case has been established in relation to the purported breaches of the general protections provisions within the IR Act to justify the granting of injunctive relief.
[106]I will now consider whether the balance of convenience favours the grant of relief, keeping in mind it is a related inquiry to prima facie case. When considering the matter, the 'apparent strength' of the substantive case constitutes an important consideration in weighing the balance.[75]
[75] Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590, [13] (Collier J).
Balance of convenience
[107]The relevant inquiry when considering where the balance of convenience lies is the prejudice afforded to each party in the circumstances of the injunction being granted or not:
…whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the Respondent will suffer if an injunction were granted.[76]
[76] Construction, Forestry Mining & Energy, Industrial Union of Employees & Anor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134, [17] (Vice President O'Connor).
Prejudice to Dr Sherlock if the order is not granted
[108]In the event of the order for interlocutory relief not being granted, Dr Sherlock characterised the harm to her as 'irreparable'.[77] Dr Sherlock contended that the balance of convenience favours the grant of injunction.[78]
[77] Submissions of the Applicant, filed 23 July 2025, [2].
[78] Submissions of the Applicant, filed 23 July 2025, [8].
[109]Dr Sherlock explained the nature of the harm in written submissions as follows:[79]
[79] Submissions of the Applicant, filed 23 July 2025, [6].
The Applicant submits that the continuation of this conduct, including any reliance on or use of the warning, would cause:
- Ongoing psychological harm to the Applicant and her family;
- Further erosion of procedural fairness and the chilling of whistleblower rights;
- Risk to her professional registration and reputation in a manner not compensable by damages; this is in circumstances where she is a respected educator in human factors and how they influence medical incidents and the importance of standing up and escalating safety concerns
- Significant distress and power imbalance in ongoing civil proceedings where the Respondent is simultaneously regulator and adversary and the applicant is currently self represented.[80]
[80] Dr Sherlock has leave to be legally represented.
[110]The harm already said to be suffered by Dr Sherlock includes loss of private practice work due to her advocacy in civil proceedings, damage to wellbeing and 'compounding of distress due to intimidation.'[81]
[81] Submissions of the Applicant, filed 23 July 2025, [7].
[111]Dr Sherlock asserted the balance of convenience tips towards her as the 'small person in a large cog that has been threatened'.[82] Dr Sherlock stated the order would protect her from 'further intimidation or retaliation pending a hearing' and argued that it is 'imperative' to her fulfilment of her clinical duties that she not be distracted by concerns about her reputation or job security.[83] The Respondents would not be prejudiced by an interlocutory order 'restraining further use of the warning or further intimidation' and would benefit from 'a clinician who is able to concentrate on delivery of patient care with reduced distraction' noting that 'distraction itself is a major cause of accidents in anaesthesia practice…'[84]
[82] T1-39 ll 7-10.
[83] Submissions of the Applicant, filed 23 July 2025, [8].
[84] Submissions of the Applicant, filed 23 July 2025, [9].
[112]Queensland Health contended that Dr Sherlock has not articulated how a letter sent in private can cause reputational harm. They said that the non-disciplinary warning and related direction to remove the LinkedIn posts do not impinge upon Dr Sherlock's ability to practice medicine or continue her advocacy in the Commission. They do say that should LinkedIn posts pertaining to matters covered by the Direction continue unchecked, then a real risk of harm to other employees, most prominently the other employee who raised the complaint, arises. Damages at trial would be an adequate remedy, contended Queensland Health, should the warning letter indeed be found to constitute adverse action.[85]
[85] Submissions of the Respondent, filed 8 August 2025, 14.
[113]At Hearing, Dr Sherlock clarified that part of the harm said to be suffered by her is that it is very difficult to act as advocate for her husband in other matters at the Commission when she is experiencing intimidation.[86]
[86] T1-11 ll 1-11.
[114]Dr Sherlock contended that the warning has rendered her employment less secure.10 Dr Sherlock stated that as the primary income earner in her family it is very important her job is secure. Further submissions were made at Hearing about job security as a reason balance should be weighed in her favour (emphasis added):
Yeah. I think the reason why I raise it is because it goes to the balance of convenience. If one party is held to be the accountability of obeying a directions order where that directions order itself was not reasonable or lawful in 2025 when I made the second public interest disclosure because confidentiality had been breached; reprisals had occurred; reprisals had been reported; and they were not investigated properly – all of those things mount to the fact that the policies of the hospital were not applied towards the relief of the employees, but then, ultimately, the policies of the hospital were used to intimidate the employee to be quiet about it, and that’s the point I’m trying to make, that when your organisation has shown that the policies only apply to me and not to them and that they can give me a warning or a threat because of a public interest disclosure, then the balance of convenience says I am definitely still in a very treacherous position in that employment, and I would like to remain in that employment when I’m 61.[87]
[87] T1-22 ll 21-33.
The last thing I wanted just to say is that in closing, Commissioner, this application for interlocutory relief is just to preserve the Commission’s jurisdiction to determine a serious general protections dispute and to prevent irreversible harm to my standing as the applicant and also my standing as an advocate for my husband in circumstances which are related through the same public interest disclosure. There is no prejudice to the employer in maintaining the status quo, while the consequences for me as an applicant for any elevation – and I gave a very reasonable timeframe for them to take the warning off and give me an apology. This would have been unnecessary had they done that. But to allow it to get to the next level – obviously, once you get to dismissal, I wouldn’t even have the right to be here to argue at all because I couldn’t get an interlocutory if I’d been dismissed. I just want to prevent it from escalating until we have the right to have the issues ventilated properly.[88]
[88] T1-23 ll 35-46.
[115]The submissions made by Dr Sherlock in relation to maintaining her standing as an advocate in other proceedings in which she is not a party, while clearly of great significance to Dr Sherlock, is not relevant to my consideration of this matter.
[116]For the reasons outlined above in relation to prima facie case, the evidence as it is, does not tend to support that Dr Sherlock's ongoing employment is in a "treacherous" position. Dr Sherlock is objectively not subject to any disciplinary process or outcome that could give rise to termination. Affidavit evidence provided by Ms Punch confirmed there is no intention to commence any disciplinary action against Dr Sherlock regarding the Australian article that appears to have been a significant factor in her application.
[117]Dr Sherlock has been directed to comply with the directions that have been in place since 2022 and to remove LinkedIn Posts that are not compliant with the earlier direction. The status quo before the warning was issued was that the 2022 Direction existed and was to be complied with and the status quo following the warning is that the 2022 Direction is to be complied with. In either scenario the letters advise future non-compliance may lead to processes to determine whether there is liability for disciplinary action to be taken in accordance with the PS Act. Those processes apply to all employees and include rights of response and appeal rights.
[118]The irreparable prejudice claimed by Dr Sherlock has not been established.
Prejudice to Queensland Health if the order is granted
[119]Queensland Health characterise the order sought by Dr Sherlock as extraordinary and argue the application essentially seeks 'complete immunity from any sort of management action'.[89] They say it would be 'untenable' for Metro North to come before the Commission to seek a variation of the order whenever 'there might be cause to do something to protect the interests of Metro North, its employees and its patients'.[90] Such an order, Queensland Health contended, would undermine the basis of the Act in establishing a framework for 'cooperative industrial relations that is fair and balanced'.[91]
[89] T 1-30 ll 46-47.
[90] T 1-31 ll 11-14.
[91] T 1-31 ll 1-14.
[120]Dr Sherlock disputed this broad description, clarifying that the order sought is intended to provide 'a reasonable chance to be able to stay in my position, to be able to advocate for my husband and to get to the general protections and the workers compensation claim to help him.'[92]
[92] T1-39 ll 28-30.
[121]Queensland Health stated their ability to act in their own interest, or to act in accordance with the duties they owe to employees generally, would be significantly compromised by the grant of the orders sought by Dr Sherlock.[93]
[93] Submissions of the Respondent, filed 8 August 2025, [44].
[122]While I accept the injunction sought would impinge on the rights of Queensland Health to enforce lawful directions, it is clear the nature of the relief sought was not ongoing and would cease upon determination of the substantive matter.
Alternate remedy
[123]Dr Sherlock seeks that I issue an order restraining the Respondents from undertaking any further adverse action or acting in reliance upon the warning.[94]
[94] Affidavit of Susan Dawn Sherlock, filed 23 July 2025, [11].
[124]The grant of injunctive relief is a discretionary exercise that must be undertaken judicially.[95] O'Connor VP characterised injunctions as 'exceptional and extraordinary' remedies.[96] Where other remedies were open to the Applicant but were not taken up, the Commission may decline to issue the injunction sought.[97] Blades IC adopted the principle as framed by the High Court in Whittaker Brothers v Australian Timber Workers Union to refer to remedies that 'were just as convenient, beneficial and effectual as the extraordinary remedy…' of injunction.[98]
[95] Construction, Forestry Mining & Energy, Industrial Union of Employees v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 134, [58].
[96] Ibid [59].
[97] Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees AND Quest Security Services Pty Ltd (2006) 183 QGIG 632.
[98] Ibid [3] citing Whittaker Brothers v Australian Timber Workers Union (1922) 31 CLR 564.
[125]In written submissions, the Department contends that this point is 'particularly pertinent' in the current proceeding as it was open to Dr Sherlock to file a fair treatment appeal pursuant to s 131 of the Public Sector Act 2022 following receipt of the non-disciplinary warning letter.[99] The Department argue that nothing in the application called for an urgent hearing and the attendant 'diversion of Commission resources.'[100]
[99] Submissions of the Respondent, filed 8 August 2025, [45].
[100] Submissions of the Respondent, filed 8 August 2025, [45].
[126]At Hearing Dr Sherlock acknowledged there were other pathways under the PID Act and Public Sector Act but determined to utilise the IR Act as a more effective pathway with the advantage of the reversal of onus.[101]
[101] T1-15 ll 29 – 34; T1-15 ll 42-47.
[127]Given my findings on prima facie case, and having weighed the factors asserted in relation to prejudice, I do not find that the balance of convenience favours the making of an order for injunctive relief.
Other issues raised by the Applicant
[128]In submissions, Dr Sherlock also asserted other factors should be considered as relevant to her claim such as human rights considerations and the public interest. While it is not clearly articulated how these factors would be relevant to my consideration of the tests for injunctive relief, I will outline them briefly below.
Human Rights
[129]The Applicant referenced several sections of the Human Rights Act2019 (Qld) including recognition and equality before the law, protection from discrimination and right to a fair hearing and the obligation to interpret statutory provisions in a way compatible with human rights and contended that "granting interim protection is consistent with rights to equality, protection from reprisals and freedom of expression."
[130]Queensland Health points out that the HR Act does not confer free standing or directly enforceable rights.[102] In any event, Queensland Health says that the warning appropriately acknowledged and took into account Dr Sherlock's human rights.[103]
[102] Submissions of the Respondent, filed 8 August 2025, 13; citing Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293; (2020) 5 QR 623, 667 [197].
[103] Submissions of the Respondent, filed 8 August 2025, 13.
[131]Queensland Health also underscore their entitlement to set behavioural standards for their employees and point to the case of Gilbert to argue that public sector employees cannot rely on the HR Act's provision in relation to freedom of expression as an immunity if those standards have been deviated from.[104]
[104] Submissions of the Respondent, filed 8 August 2025, [41].
Public interest
[132]Dr Sherlock also identified a 'compelling public interest' in granting the injunction.
[133]As part of the public interest contentions the Applicant cautioned the Commission that:
The Commission plays a role in preventing misuse of authority to silence or retaliate against whistleblowers, and also has a role to play in ensuring procedural fairness where exercising discretion, which is said to be essential to 'public faith in the integrity of the QIRC itself to uphold the principles and intent of the General Protections in the IR act.
A discretionary decision causing imbalance to the rights of the Applicant to receive procedural fairness is likely to trigger a judicial review as the issues are of great public importance with respect to upholding protections against whistleblower retaliation.
[134]The foreshadowing of likely further action should Dr Sherlock consider the exercise of discretion in this matter has led to such an imbalance, is solely a matter for the Applicant and not a consideration relevant to my exercise of that discretion pursuant to s 473 of the IR Act.
Other issues raised by the Respondent:
[135]In submissions and at Hearing, issues were raised about Respondents, accessorial liability and the actual employer of Dr Sherlock. While these matters are not of relevance to my consideration of injunctive relief, I will outline them briefly below.
[136]The warning letter was signed by Mr Eaton, who Dr Sherlock has identified as a Respondent, stating:[105]
[105] T1-19 ll 1-19.
The person writing the letter, Mr Eaton, definitely would have known that there would have been some issues for me because he acknowledged it by saying, “I know that you may find this difficult,” and he also reached out to offer me EAP. I think that goes towards the fact that he knew the letter would have a reaction for me at a time when I was in the midst of the pointy end of being at court trying to represent my husband, who was the injured party.
It was mentioned in the reply by the respondent’s counsel that there was some discussion about whether or not reversal of onus applies to accessorial conduct, and I would just say I want it quite plainly on the record that I have not said that Mr Eaton was some accessory. I have named him as a respondent for the person who created the adverse action. I was very particular about the fact that he was named as the respondent, and I named him as the person who sent the letter, both letters, and the person who made the decision. So in that letter, he took full responsibility. He said, “I have determined that this constitutes behaviour that could go to a warning.” He made that decision. He took full credit for it. I have determined on this occasion – I think it’s very plain that when you make an adverse action, you need to say who did what when, and I have said Mr Eaton sent me a letter on this thing, and he referred to my public interest disclosure, and I see that as reprisal for having made it.
[137]The IR Act specifically provides 'adverse action' may be taken by an employer against an employee, by a prospective employer against a prospective employee, by an employee against their employer, or by an industrial organisation officer or member against a person.[106]
[106] Industrial Relations Act 2016 (Qld) s 282 (1)-(4).
[138]Mr Eaton is not Dr Sherlock's employer.
[139]Queensland Health went on to argue that this statement by Dr Sherlock at Hearing makes clear Mr Eaton is also not an accessory and all claims against him should be struck out - he should not be a Respondent. This is a matter to be addressed in the substantive proceeding.
[140]It was also raised that the actual employer of Dr Sherlock is Metro North Hospital and Health Service rather than Queensland Health. This is a matter to be addressed in the substantive proceeding.
Conclusion on Injunctive Relief
[141]Having regard to the interrelated considerations of prima facie case and balance of convenience a sufficient likelihood of success at trial has not been established on the evidence in this proceeding to warrant granting the injunctive relief sought.
[142]I order accordingly.
Order
The application for an injunction is dismissed.
(2023) 300 FCR 170 at [47] and [339].
(2023) 300 FCR 170 at [47] and [339].
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