Federal court examines protected workplace communications case
The Federal Court of Australia recently dealt with an urgent application where a worker sought to challenge both a roster change and suspension from duties.
The worker argued these actions violated workplace rights and were taken in response to raising concerns about workplace issues.
This case examined whether workplace communications could be linked to subsequent employment actions, and what evidence was needed to prove such connections.
The worker, a with cardiothoracic surgeon 15 years of experience at The Royal Melbourne Hospital, performed complex surgeries including Ross procedures - a specialised operation involving simultaneous replacement of aortic and pulmonary valves. He worked a typical 42-hour fortnight schedule, conducting surgeries on Wednesdays and Fridays.
Prior to the dispute, the worker regularly performed an average of eight complex cardiothoracic surgeries per month at the hospital. His work came through direct referrals from cardiologists who specifically nominated him to perform the procedures.
In February 2024, the worker raised concerns about a colleague's potential promotion. The hospital appeared to consider these concerns, as the promotion did not proceed. The worker followed up with written correspondence in April 2024 reiterating his opposition to the appointment.
In August 2024, the worker wrote to the director of cardiothoracic surgery about what he described as "very serious issues" affecting surgical work at the hospital. He proposed taking three weeks of annual leave.
Two days after this communication, the clinical director informed the worker that his Friday operating list would be reassigned. The director explained this change was to accommodate another returning surgeon, though the worker disputed this reasoning.
During a subsequent discussion with the clinical director, the worker made serious allegations about a colleague's competence. This led to the hospital initiating an investigation process.
The worker relied on section 340(1) of the Fair Work Act 2009 (Cth), which prohibits employers from taking adverse action against employees for exercising workplace rights. He argued both the roster change and suspension were adverse actions taken in response to his workplace communications.
As the Court noted: "What [the worker] must prove at this juncture is what [the employer's] reasons for acting were; not what they were not." This meant showing direct evidence that the hospital's actions were motivated by his workplace complaints.
The hospital maintained its actions were unrelated to the worker's communications. The Chief Medical Officer's letter stated the suspension was implemented to allow "an external investigation [to be] undertaken into alleged serious misconduct, specifically conduct that is alleged to have caused serious and/or imminent risk to the health and safety of a person and the reputation of [the employer]."
The Court examined whether the worker could establish a sufficient connection between his workplace communications and the hospital's subsequent actions. The timing of events alone wasn't enough to prove causation.
The judgment emphasised: "The nature of the accusation that has been levelled against [the worker] is not insignificant... [the employer] has a legitimate interest—which [the worker's] suspension with pay would plainly serve—in avoiding situations in which accomplished colleagues are expected to interact and work together against the backdrop of unresolved workplace conflict."
In reaching its conclusion, the Court determined: "Taking account of the considerations that guide its exercise, I am not satisfied that the court's discretion to grant interlocutory injunctive relief should here be exercised." While acknowledging potential merit in some arguments, the Court found insufficient evidence to warrant immediate intervention.
