Employee successfully obtains an injunction preventing the employer from terminating the employee’s employment

Facts

The employer proposed to terminate an employee during her probation period for reasons concerning information she provided about her previous employment with another Commonwealth department and the circumstances in which she left that previous employment.

The employer’s letter to the employee indicated it was considering the termination of her employment for reasons that included that in a declaration the employee made during the recruitment process for the current role, she may have provided misleading information she knew to be misleading and wilfully failed to disclose information that she knew, or ought reasonably to have known was relevant to her response to the declaration.  

In this Federal Court decision the Court was determining an application for interlocutory injunctive relief to prevent the termination of the employee’s employment.

First, the Court considered the General Protections grounds of the employee’s claim under the Fair Work Act 2009 (Cth) (FW Act), namely section 340 and section 351. Here the employee had claimed that the employer had dismissed her because she had exercised a workplace right by making an inquiry about transferring to permanent employment or on discriminatory grounds because the employee is Muslim and wears a veil. In this case the employee was unsuccessful in obtaining an injunction arising from these grounds because the Court did not find any evidence to support these particular claims.

However, the Court found there was a “serious question to be tried” regarding whether the enterprise agreement has been contravened under s 50 of the FW Act in respect of the disciplinary processes required to be followed by the employer as set out in the enterprise agreement.

On the issue of injury to the employee and the balance of convenience, the Court found that because of the employee’s ongoing health problems and the risk to her financial position if her employment was to be terminated, damages would not be an adequate remedy to the employee. The Court found the balance of convenience plainly favoured the employee.

Therefore, the Court made an order preventing the termination of the employee’s employment until a determination of the employee’s claims.

Key take-away

This case is an important reminder for employers that when it puts an employee on notice of the proposal to terminate their employment, for example by issuing a show cause letter, the employee may bring court proceedings, including alleging a breach of the general protections provisions of the FW Act, a breach of an enterprise agreement and a breach of the contract of employment. As part of those proceedings, the employee may obtain an injunction preventing the termination of their employment.

Given the expense involved in seeking an injunction, we consider it would be rare for an employee to pursue this action and this may perhaps be an avenue senior executive employees may be more inclined to pursue or where an employee believes that any compensation awarded by a court could not adequately remedy the loss of the job.

Assi v Department of Climate Change, Energy, the Environment and Water [2022] FCA 1592 (22 December 2022)

If you would like more information about the case, please contact our office on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.