Alasady v Australian Capital Territory

1. The application for interlocutory relief dated 3 August 2023 be dismissed.
2. The costs of and pertaining to the application be reserved.
3. The matter be set down for a case management hearing on 5 September 2023 at 9:30 am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RAPER J: 1 These reasons are given ex tempore given the first respondent has only undertaken not to terminate the applicant's (Dr Alasady) position for a short period. 2 By application dated 3 August 2023, Dr Alasady applies for interim relief in the following terms: 1. Prayers 1 to 7 of this Interlocutory Application be returnable instanter. 2. Pursuant to r 9.02(1)(c) of the Federal Court Rules 2011 (Cth), grant leave to add Janet Zagari as a named respondent to the proceedings. 3. Pursuant to s545 of the Fair Work Act 2009 (FW Act), and subject to revocation by the Court, the First Respondent, until the determination of this Interlocutory Application, be prohibited from: a. taking, or putting into effect, any of the sanctions referred to in clause 125 of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021 - 2022 (Enterprise Agreement); and further or in the alternative b. taking adverse action against the Applicant, within the meaning of s342 of the FW Act, by dismissing the Applicant from his employment. 4. Further, or in the alternative to Order 2, pursuant to the accrued jurisdiction of the Federal Court of Australia, and subject to revocation by the Court, orders pursuant to s17(2) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) that: a. Ms Zagari, until the determination of this Interlocutory Application, refrain from making a decision to dismiss the Applicant from his employment with the First Respondent; b. the First Respondent be required to end Ms Zagari's delegation as a sanctions delegate in respect of the final determination of the ACT Public Sector Standards Commissioner (the Third Respondent) regarding the Applicant dated 7 June 2023, and appoint an alternate sanctions delegate. 5. By 4.00 pm on [date of the interim order] the Applicant is to serve on all named respondents and Ms Zagari: a. this Interlocutory Application; b. the affidavit of John Wilson dated 3 August 2023; c. the orders made by the Court. 6. Grant leave to the Applicant to file and serve an amended originating application and further amended statement of claim within 14 days. 7. List the proceedings, including this Interlocutory Application, for Case Management at [time] on [date]. 3 By the same application, Dr Alasady also applies for interlocutory relief in the following terms: 8. Pursuant to s545 of the FW Act, and subject to revocation by the Court, the First Respondent, until the determination of this proceeding, be prohibited from: a. taking, or putting into effect, any of the sanctions referred to in clause 125 of the Enterprise Agreement; and further or in the alternative b. taking adverse action against the Applicant, within the meaning of s342 of the FW Act, by dismissing the Applicant from his employment. 9. Further, or in the alternative to Order 8, pursuant to the accrued jurisdiction of the Federal Court of Australia, and subject to revocation by the Court, orders pursuant to s17(2) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) that: a. Ms Zagari, until the determination of this this proceeding, refrain from making a decision to dismiss the Applicant from his employment with the First Respondent; b. the First Respondent be required to end Ms Zagari's delegation as a sanctions delegate in respect of the final determination of the ACT Public Sector Standards Commissioner (the Third Respondent) regarding the Applicant dated 7 June 2023, and appoint an alternate sanctions delegate. 4 I do not propose today to consider what is sought by Dr Alasady in prayers 2 and 6 of this application. It is my view that they are not urgent, and they can be dealt with in the ordinary timetabling of the matter. 5 I state shortly certain background matters. Dr Alasady commenced the substantive proceeding by originating application filed on 26 July 2022. I set out the factual background to this matter in my judgment of 18 August 2022, in which I considered an interlocutory application filed on and dated 1 August 2022: see Alasady v Australian Capital Territory [2022] FCA 967 at [2]-[9]. 6 In short, Dr Alasady was employed as a cardiologist on a part-time basis, of 0.4 FTE (being 16 hours per week), by the first respondent until he was suspended from his employment (with pay) on 28 March 2022 pending an investigation into allegations regarding his behaviour towards staff and colleagues at the Canberra Hospital, which forms part of the Canberra Health Services (CHS). The matter was referred to the third respondent (the Public Sector Standards Commissioner) who arranged for Ms Claire Carton from Griffin Legal to undertake an independent investigation on behalf of the Commissioner. After considering that report, on 16 March 2023 the Commissioner wrote to Dr Alasady outlining his proposed findings of misconduct. The final Misconduct Decision was provided to Dr Alasady on 7 June 2023, in which the Commissioner found that Dr Alasady's conduct had amounted to misconduct within the meaning of the ACTPS Medical Practitioners Enterprise Agreement 2021-2022 (2021 Agreement). 7 In or around early June 2023, the second respondent advised Dr Alasady that Ms Janet Zagari (the Deputy CEO of CHS) would be the "head of service" for the purposes of cl 125 of the 2021 Agreement and would decide whether to impose a sanction on Dr Alasady following the Misconduct Decision, and what that sanction would be. Dr Alasady objected to Ms Zagari's appointment. Ms Zagari declined to recuse herself on 6 July 2023. 8 Also on 6 July 2023, Ms Zagari informed Dr Alasady that she was proposing to terminate his employment with the first respondent. Dr Alasady alleged that Ms Zagari had not complied with the 2021 Agreement in purporting to advise Dr Alasady of the proposal to terminate his employment, which Ms Zagari denied. Dr Alasady's solicitors responded to Ms Zagari's letter on 28 July 2023 (28 July Letter), and informed her that he proposed to apply to the Court for an interim injunction preventing or stopping the effects of the purported breach of the 2021 Agreement if the first respondent terminated Dr Alasady's employment before responding to the 28 July Letter. 9 The solicitors for the respondents provided a response to the 28 July Letter, however Dr Alasady felt that the response was ambiguous. This was the impetus for the present interlocutory application.