Chen v Gold Coast Hospital and Health Service

Public Sector Act 2022 (Qld)

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504

Australian Broadcasting Corporation v O'Neill [2006] HCA 46

Australian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627; 100 IR 383

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 2

Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 12

Chen v Gold Coast Hospital and Health Service [2021] QIRC 235

Chen v State of Queensland (Queensland Health) [2021] QIRC 249

Chen v State of Queensland (Queensland Health) [2021] QIRC 369

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726

Dalley & Ors v Kelsey & Ors [2018] ICQ 006

Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479

Lee v Superior Wood [2020] FWCFB 1301; 295 IR 242

McAllan v National Prescribing Service trading as NPS Medicinewise [2017] FCCA 3151

Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198

Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179

Russell v Institution of Engineers Australia t/c Engineers Australia [2013] FCA 1250

Scott v State of Queensland (Queensland Health) [2022] QIRC 488

Mr PM Zielinski of counsel, instructed by MinterEllison for the Respondent.

[1] On 17 February 2023, Dr Victor Chen (the Applicant), filed an application in existing proceedings seeking an interlocutory order directing his interim reinstatement pending the determination of his joined unfair dismissal and general protections applications (the substantive proceedings).

[2] At the time of his dismissal,[1] the Applicant was employed by the Gold Coast Hospital and Health Service (GCHHS) (the Respondent) as a casual Visiting Medical Officer based at the Gold Coast University Hospital (GCUH).

[3] As a number of proceedings brought by Dr Chen in the Queensland Industrial Relations Commission and the Industrial Court of Queensland are referred to in the parties' submissions, it is useful to briefly canvass some of those proceedings.

[4] In an unpublished decision by Dwyer IC on 12 March 2020, prior to amendments to the now repealed Public Service Act 2008 (Qld) which required public service appeals to be published on the Supreme Court Library website,[2] Dwyer IC considered Dr Chen's conversion appeal and returned the Respondent's decision to the decision-maker to address the GCHHS's genuine operational requirements.

[5] On 23 July 2021, Knight IC allowed Dr Chen's appeal against a disciplinary penalty decision.[3] Commissioner Knight set aside the disciplinary penalty of a reprimand and returned the decision to the decision-maker with findings that Dr Chen's conduct was not misconduct but rather a breach of the Respondent's Code of Conduct. Commissioner Knight returned the matter to the decision-maker to undertake a fresh show cause process in relation to the disciplinary penalty.

[6] On 28 October 2021, Knight IC dismissed two further conversion appeals filed by Dr Chen.[4] An appeal of Knight IC's decision with respect to the conversion appeal filed under the matter number PSA/2020/449 was adjourned to the Registry by O'Connor VP in Chen v State of Queensland (Queensland Health)[5] pending the outcome of the substantive proceedings. Vice President O'Connor upheld Knight IC's decision to dismiss the conversion appeal brought by Dr Chen in PSA/2020/225.

[7] Turning to the substantive proceedings which are before me for hearing, Dr Chen first commenced a general protections application on 23 December 2020 and later an unfair dismissal application on 11 March 2021. Those matters have been joined.[6]

[8] The Industrial Relations Act 2016 (Qld) (the IR Act) relevantly provides:

(4) Without limiting subsection (3), the commission may do 1 or more of the following -

(b) make orders, or give directions, of an interlocutory nature;

(c) exercise the commission's powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;

(d) make another order or exercise another power the commission considers appropriate for the prevention of or the prompt settlement of, the dispute.

(1) Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313 -

(a) an order for reinstatement of the person;

(b) an order for the payment of compensation to the person;

(c) an order for payment of an amount to the person for remuneration lost;

(d) an order to maintain the continuity of the person's employment;

(e) an order to maintain the period of the person's continuous service with the employer;

(f) an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.

(2) A person to whom an order under subsection (1) applies must not contravene a term of the order.

(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.

[9] The test to be applied in considering whether to grant an interlocutory injunction was set out in Australian Broadcasting Corporation v O'Neill ('ABC v O'Neill'),[7] where Gummow and Hayne JJ said:

[65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, 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 the 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 an 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."[8]

[10] In Dalley & Ors v Kelsey & Ors ('Dalley v Kelsey'),[9] Martin J considered the correct application of the test in ABC v O'Neill:

[34] The question, at this point, is whether the Industrial Commissioner correctly applied the test in ABC v O'Neill.

[35] The Industrial Commissioner did not, with respect, confine himself to the correct test. He did, so far as the first leg of the test is concerned, engage in impermissible speculation about the nature of the case which might be available to Ms Kelsey in the final hearing. For example:

(a) in [71] he referred to whether the evidence at trial would "remain in place" or whether there was a likelihood on the balance of probabilities of that not being the case,

(b) in [98] he expressed an expectation that Ms Kelsey would be entitled to explore with the Councillors the breadth of their activity in and around the issue of the Public Interest Disclosure, and

(c) in [99] he said that it might be open to make certain connections between particular types of conduct.

[36] In those examples the Industrial Commissioner engaged in speculation about the evidence at the final hearing when he was required to assume it would be unchanged.

[37] In [132] he said that evidence from the Councillors had not established any grounds that would extinguish all prospects for Ms Kelsey at trial. In doing that he applied a condition which is inconsistent with the requirements in ABC v O'Neill. In an application of this type, the decision-maker is required to consider whether the applicant has established a prima facie case. This was reversed by the Industrial Commissioner when he, effectively, asked whether such a case had been disproved. He was not, at that point, considering the possible application of the reverse onus.

[38] The Industrial Commissioner erred by not applying the correct test to determine whether a prima facie case existed. That is a sufficient basis to allow the appeal. There were other grounds which were advanced, but (apart from one) they were put in the alternative and need not be considered. The other, independent ground was that the Industrial Commissioner had not assessed the strength of the prima facie case he had found to exist. That step is a requirement of the process to be undertaken on an application of this type. It is a step which the Industrial Commissioner does not appear to have taken.

[11] In Dalley v Kelsey, Martin J noted that 'unchallenged evidence, which is not inherently implausible and which is not directly contradicted by a credible body of evidence of a substantial character, should ordinarily be accepted'.[10] Justice Martin also gave consideration to the effect of the reverse onus:

[46] While s 306(3) provides that the reverse onus does not apply in relation to orders for an interim injunction, that does not mean that the effect of s 306 may be ignored. The cognate provision in the Fair Work Act 2009 (Cth) is s 361. Its distinguishable predecessor was s 809 of the Workplace Relations Act 1996 (Cth). It was considered by Greenwood J in CPSU v Blue Star Pacific Pty Ltd. I respectfully agree with what his Honour said about the effect of that section:

[24] Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction. However, it seems to me that the correct approach is this. The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial. At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out. 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.[11]

[12] The parties filed written outlines of argument and provided oral submissions at the hearing held on 15 March 2023. There have been vast amounts of material filed with regard to Dr Chen's substantive applications including Statements of Facts and Contentions, affidavit material, and a range of other documents.

[13] The parties relied on affidavits and material already filed in support of, or in opposition to, Dr Chen's application. The deponents have not been cross-examined. A half-day hearing was listed to allow the parties to make oral submissions. It is not my intention to refer to every submission or piece of filed material in these written reasons.

[14] Dr Chen's application in existing proceedings states that he:

... seeks interlocutory orders for reinstatement having presented a prima facie case prior unfair dismissal constituting proscribed adverse action at times the Appellant formally exercised his right to convert a continuous regular and systematic pattern of employment since 2014 to permanent employment making applications 18 February 2018 and 30 January 2019.

[15] Dr Chen's written outline of submissions filed on 6 March 2023 outline his case as it currently stands and includes reference to proceedings commenced by him for conversion to permanent status, and the actions of the Respondent in engaging other cardiologists. Dr Chen also makes submissions regarding the history of his employment as well as other matters here at the Commission pertaining to his public sector appeals including a disciplinary matter and temporary to permanent conversion appeal. In addition, Dr Chen makes reference to what he says are breaches of his 'Award minimum safety net protections' and the 'well accepted legislative intent for tenure to be the default basis for employment in the public service'.[12]

[16] Dr Chen makes a number of submissions about the Respondent's actions in relation to the substantive proceedings and the Respondent's conduct in these proceedings. Dr Chen raises issues regarding the Respondent's position on discovery, however I note that I decided an application regarding discovery and Dr Chen's appeal against my decision[13] is currently awaiting hearing and decision in the Industrial Court of Queensland.

[17] At paragraphs 13 to 27 of his outline of argument, Dr Chen makes various submissions under the heading 'SMO v VMO designation that amounts to sham contracting'. These submissions address Dr Chen's assertions regarding the status of his employment, decisions made regarding rostering and employment of Dr Chen, and reiterate his view that he should be afforded 'safety net protections' under the Award. Here, Dr Chen refers to the Medical Officers Queensland Health Award - State 2015 (the Award).

[18] Dr Chen says that he seeks an order pursuant to section 473 of the IR Act to compel the respondent to comply with cl 7.2(h) of the Award and submits that the status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. Dr Chen states that the Award protects his 'previous status quo regular and systematic pattern of work'.

[19] Dr Chen's application also refers to communication he has had with colleagues where they have stated that they would welcome him back to work and what he says is 'direct knowledge' of a 'permanent funded vacant 0.3FTE in 2023'.

[20] Dr Chen's outline of argument filed on 6 March 2023 states that he applied for interlocutory reinstatement on 10 May 2021 while his unfair dismissal application was before Dwyer IC for a conciliation conference. I have reviewed the material from this time, and it is clear to me that at the time this application in existing proceedings was filed in 2021, there was a jurisdictional objection on foot raised by the Respondent regarding whether Dr Chen had been dismissed. I understand that Dwyer IC indicated to Dr Chen that the interlocutory application could not be dealt with until the jurisdictional matter was resolved and that Dr Chen would be free to press his application in the event that a dismissal had in fact occurred.[14] As it transpired, the Respondent did not maintain its jurisdictional objection.

The Commission has also noted multiple processes on foot and said at Mention that full resolution of matters may "take years", therefore the applicant pleads it would be manifestly wrong and grossly unlawful and prejudicial in the context of well accepted legislative intent to not exercise the jurisdiction to protect basic Award safety provisions and to refuse this application for interlocutory reinstatement, where the applicant would otherwise suffer severe injury and latter [sic] damages awarded would not be adequate remedy.[15]

[22] Dr Chen argues that he has made out a strong prima facie case in both his unfair dismissal matter and his general protections matter. Further, Dr Chen submits that there is a strong prima facie case made out regarding the 'genuine operational requirements' of the GCHHS for him to be employed in the pattern of employment he was engaged in from 2014 until his termination. Dr Chen also argues that support from his colleagues for his return adds to his strong prima facie case. With reference to information that funds have been set aside in case Dr Chen's reinstatement is ordered and there is a resulting decision converting him to permanent employment, Dr Chen says this also adds to his strong prima facie case. It appears that Dr Chen's submissions regarding the support of his colleagues for his return is based on discussions and text messages with his colleagues. I note the Respondent's submission that there is nothing unusual about it taking steps to ensure that if reinstatement is ordered by the Commission, the GCHHS has the budget and capacity to facilitate Dr Chen's return.[16]

[23] With regard to the balance of convenience and the prejudice caused to the parties should injunctive relief be granted, Dr Chen says that he 'would be extremely inconvenienced... if I didn't have reinstatement'.[17] Dr Chen says that what he is seeking is four to eight hours weekly or five to ten hours weekly.[18] Dr Chen says that this is 'a very modest drop in the bucket to the two to three cath labs that run every day at the GCUH'.[19]

[24] Dr Chen also says that it is in the interests of justice that he be reinstated 'so that the execution of another decision in the commission is not - in not unjustly, unfairly abrogated - abrogating my rights'. This submission was made with reference to Dr Chen stating that now, or at another stage, there needs to be a decision about whether there is a recognition of the gap in his period of service, as he says this will be important in assessing his eligibility for conversion.[20]

[25] With reference to Martin J's consideration in Dalley v Kelsey of the test enunciated by the High Court in ABC v O'Neill, the Respondent says that while the reverse onus in s 306 of the IR Act does not apply to this application for interlocutory reinstatement, '... in assessing whether Dr Chen has demonstrated a sufficient likelihood of success at trial, the Commission must take into account the operation of the presumption at trial in the context of the evidence available on the Application'.[21]

[26] Furthermore, the Respondent says that the two limbs of the test in ABC v O'Neill are interrelated, in that a strongly arguable case may mean that the moving party has a lower threshold to meet on the balance of convenience and vice versa.[22] The Respondent also says that the question of how long an interlocutory order may be in place for is also a relevant factor when considering the balance of convenience.[23] In this case though, the Respondent says that an even more important factor is the question of delay. The Respondent cites Russell v Institution of Engineers Australia t/c Engineers Australia where Foster J said,[24] '[a]pplications for interim reinstatement of employment must be brought very promptly after termination', and 'serious delay' militates against interlocutory relief.

[27] Further, the Respondent submits that the relevant principles as to delay were conveniently summarised by Lucev J in Guthrie v Visa Global Logistics Pty Ltd:

[93] "Urgency is the first and most basic requirement for granting an interim injunction": Cairns BC, Australian Civil Procedure (12th ed, Lawbook Co., 2020) at [14.210]. Delay, without reasonable explanation, is a sufficient reason for rejecting interlocutory relief, and an important discretionary consideration: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd [1987] FCA 412; (1987) 76 ALR 633 at 638 -639 per Bowen CJ, Beaumont and Foster JJ; Williment & Ors v Commissioner of Taxation [2010] FCA 808; (2010) 190 FCR 234; (2010) 79 ATR 650 ("Williment") at [16]-[18] per Perram J; Renouf v RAC Finance Ltd (No 2) [2018] FCCA 182; (2018) 338 FLR 276 ("

Renouf (No 2)") at [96] per Judge Lucev. What constitutes a delay is a matter of circumstance. A delay of over two weeks in the time taken to approach the Federal Court for the purpose of obtaining interlocutory relief was described as "a very substantial delay": Williment at [7] per Perram J, which warranted the refusal of injunctive relief: Williment at [18] per Perram J. In Renouf (No 2) at [97] and [100] per Judge Lucev a delay of at least two months was one of a number of factors said to warrant refusal of injunctive relief. In Capcoal Management at [95]-[98] per Katzmann J a delay of two weeks was said to be "insubstantial" where no prejudice was claimed by the other party, very lengthy affidavits (one running to 366 pages) had to be prepared, and other related proceedings were on foot [in] the FWC.[25]

[28] With regard to Dr Chen's submissions about the application of the Award, the Respondent says it does not understand the relevance of the Award to Dr Chen's application for interim reinstatement. The Respondent says its position is that the Award did not apply to Dr Chen's employment as he was employed as a Visiting Medical Officer, and the Award otherwise appears only indirectly relevant to his general protections claim.

[29] The Respondent also notes that this is Dr Chen's second application for interlocutory reinstatement. The Respondent says that it was open to Dr Chen to file an interlocutory application for reinstatement when the GCHHS confirmed in its submissions of 21 May 2021 that it no longer maintained its jurisdictional objection and treated Dr Chen as having been dismissed, when the Respondent wrote to the Applicant on 10 June 2021 to confirm it considered Dr Chen's separation date to be 21 May 2021, or when the Respondent reiterated this position at a mention before Dwyer IC on 18 June 2021. Dr Chen did not do so, and the Respondent notes that Dr Chen chose to wait 19 months to seek interim reinstatement to a role last performed by him in December 2020. The Respondent says that the inference is that Dr Chen exercised a choice not to seek interim reinstatement at an earlier stage of the proceedings.

[30] The Respondent says that at its very highest, Dr Chen's prima facie claim can only be described as a weak one.

[31] The Respondent contends that as noted by Martin J in Dalley v Kelsey, the evidence relied upon by the parties was 'not challenged in the traditional way' and that 'unless the evidence is inherently incredible, the decision maker should proceed on the basis that it would be accepted on the trial of the substantive application'.[26] The Respondent says that this 'cuts both ways' and that the GCHHS has led cogent evidence contradicting Dr Chen's allegations.

[32] The Respondent points to its sworn testimony which provides credible evidence as to the lawful reasons why the Applicant was not rostered for shifts and ultimately had his employment terminated.[27] The Respondent argues that while Dr Chen attempts to discredit this evidence in his submissions, and could conceivably eventually succeed in demonstrating that this evidence ought not be accepted, this is a matter to be tested and considered at trial.[28] The Respondent says that this interlocutory reinstatement application cannot be used to 'conduct a preliminary trial or resolve conflicts arising on the evidence advanced by each party'.[29]

[33] With regard to Dr Chen's new allegations of adverse action raised in late 2022, the Respondent says that it has not had an opportunity to put on evidence regarding these allegations as the substantive proceedings have not progressed while Dr Chen's interlocutory applications and appeals are on foot. The Respondent says that in circumstances where it has not had an opportunity to file its evidence in relation to these new allegations, and without the benefit of the reverse onus, the Commission cannot be satisfied that Dr Chen has a prima facie case in relation to these allegations.

[34] The Respondent submits that 'the thread that runs throughout this case is this fundamental difference between the hospital and health service and Dr Chen about demand for services versus operational requirements and budget'.[30] Essentially, the Respondent says that Dr Chen has invited me to substitute the GCHSS's position with his view, and perhaps that of some of his colleagues or middle management about resourcing and the need for Dr Chen's services. The GCHHS is concerned that 'putting in Dr Chen - or any other interventional cardiologists that are not there already - will detract from other services that need to be prioritised because of the waitlists that apply to those services'.[31]

The impact of Dr Chen's actions on trust and confidence

[35] The Respondent says that Dr Chen has levelled serious allegations against the legal representatives of the Respondent, but of more importance are the allegations Dr Chen has levelled directly against the Respondent.

[36] While the Respondent recognises that an unfair dismissal claim or forcefully advanced position will generally be irrelevant to a consideration of whether trust and confidence has been broken down between them, this will not always be so.[32] The Respondent points to Lee v Superior Wood,[33] where it was determined at first instance that statements made by the employee about the Managing Director during the course of the hearing were offensive, objectionable and damaging of goodwill that might have otherwise existed between the parties before the statements were made. This was treated as a matter weighing against a finding that a workable relationship was capable of being restored through a reinstatement order. This decision was upheld by the Full Bench of the Fair Work Commission.[34]

[37] The Respondent points to Dr Chen's written submissions in this matter where he makes various allegations against the management of the Respondent, including Grant Brown, Executive Director, People and Operations, that the Respondent says are grossly improper.[35] The Respondent submits that those allegations are not isolated and far exceed what is appropriate in robustly or forcefully advancing their case. The Respondent says that these matters are the basis upon which it will argue that Dr Chen's reinstatement is untenable, meaning that Dr Chen has poor prospects of ultimately being reinstated in the substantive proceedings.

[38] By way of a further reason it is 'at least strongly arguable' that Dr Chen will not succeed in obtaining reinstatement in the substantive proceeding, the Respondent points to an earlier public sector appeal where Dr Chen challenged a disciplinary finding of misconduct and in which Knight IC found that his conduct towards a scrub nurse with whom he was working was 'entirely unacceptable' but ultimately found that the conduct did not amount to misconduct for the purposes of the now repealed Public Service Act 2008 (Qld). In that matter, two allegations were substantiated:

On 31 January 2020 at around 10am, [Dr Chen] failed to demonstrate courtesy and respect towards Candice Bawden, Registered Nurse, in the Cardiac Catheter Suite when [he] did not communicate effectively with her during a procedure.

On 31 January 2020 at around 10am, [Dr Chen] inappropriately applied force to Ms Candice Bawden, Registered Nurse, without her consent during a procedure in the Cardiac Catheter Suite.

[39] In August 2021, Dr Chen was invited to explain why disciplinary action should not be taken against him, however that correspondence also informed Dr Chen that the decision-maker did not believe that they had the authority to issue Dr Chen with a disciplinary penalty for a number of reasons set out in that letter. The decision-maker informed Dr Chen that if he agreed with the assessment that a disciplinary penalty could not be issued, the matter would be treated as at an end. However, Dr Chen was also informed that the substantiated allegation would remain on his employment file, as Knight IC had only substituted the finding that the substantiated allegation constituted misconduct.

[40] The Respondent notes that Dr Chen provided a response to be noted for the record.[36] In this response, the Respondent says Dr Chen, 'broadly challenged Knight IC's factual findings, alleged that his supervisor Dr Meng Tan had "embellished" the relevant complaint, and minimised the complaint on the basis that the scrub nurse "suffered no psych injury, worked the immediate next complex case..., and was certainly not crying"'. Dr Chen also suggests that the nurse's account was 'influenced by implicit expectations of GCHHS Executives, where opposition to my application for conversion to permanent employment was widely known'. The Respondent says that Dr Chen's response is concerning as it demonstrates a 'persistent lack of insight and capacity to accept his wrongdoing'. The Respondent says this adds to the argument that Dr Chen will not succeed on obtaining reinstatement in the substantive proceeding.

[41] The Respondent says that if I am satisfied there is a sufficient prima facie case, the balance of convenience weighs heavily against interim reinstatement.

[42] The Respondent says that firstly, the delay in Dr Chen seeking interim reinstatement is extensive and that no sufficient explanation has been offered for his conduct in that regard.

[43] The Respondent says that on 18 October 2022, Dr Chen was given leave to extend the scope of his case. He was legally represented at this time and no suggestion was made by his legal representatives that the evidence on which that expansion was granted could give rise to a new basis upon which interlocutory relief might be warranted.

[44] The Respondent says that there is a fundamental conflict between the GCHHS and Dr Chen as to whether there is an operational need for his services. While Dr Chen claims that there is a demand for an additional or multiple interventionist cardiologists, Dr de Wet's evidence is that demand for such services is not the only relevant factor and that any operational requirement for Dr Chen's services must be assessed by reference to the overall availability of theatres and the need to ensure that finite resources are spread across the various cardiology specialities, some of which have to be prioritised due to the state of their waiting lists.[37]

[45] The Respondent says that it has assessed that it does not require Dr Chen's services. The Respondent says that the substitution of that view for Dr Chen's subjective and emotive assessment potentially disadvantages other clinical areas and weighs against reinstatement on an interim basis.

[46] The Respondent further says that the same arguments it makes as to why any ultimate reinstatement of Dr Chen following the substantive hearing is not practical heavily militates against his reinstatement.

[47] The Respondent says that where damages will be an adequate remedy, an interlocutory injunction should not ordinarily be granted.[38] The Respondent says that Dr Chen will not suffer significant prejudice by not being reinstated pending the outcome of the substantive proceedings and that if he ultimately succeeds in the substantive proceedings, he will be adequately compensated for all loss suffered. With regard to Dr Chen's submissions about prejudice to his public sector appeal matter regarding conversion to permanent employment which has been adjourned to the Industrial Registry pending the outcome of the substantive proceedings, the Respondent says that should the Commission order Dr Chen be reinstated following the substantive hearing, it is likely that there will be an accompanying order preserving his continuity of service and therefore his conversion application will be able to proceed to be heard and determined.

[48] The matters to be considered in determining whether to grant Dr Chen's application for interim reinstatement are set out above and both Dr Chen and the Respondent have addressed these matters. The task before me is as set out by Mortimer J in Rugg v Commonwealth of Australia as represented by the Department of Finance ('Rugg'): 'I must be satisfied that there is a serious question to be tried on the current evidence, and that the balance of convenience lies in favour of granting the interim injunction sought.'[39]

Prima facie case or serious question to be tried

[49] As the Respondent's counsel pointed out during a mention of this matter on 28 February 2023, consideration of whether Dr Chen has demonstrated a prima facie case or that there is a serious question to be tried, is not a 'trial within a trial'. As the principles set out above at [9] to [11] make clear, the task before me is to consider the evidence as it currently stands. While I am not at this stage of the proceedings applying the reverse onus provided for in s 306, I am able to consider the evidence which is currently available from both Dr Chen and from the Respondent. There is a lot of filed material in both the general protections matter and the unfair dismissal matter. While none of this evidence has been tested, the authorities suggest that unless the evidence is clearly not credible, I am entitled to consider this interlocutory application on the basis that the evidence will remain unchanged.

[50] In the context of this application for interim reinstatement, I find that beyond acknowledging that a prima facie case or serious question to be tried has been established, it is relevant for me to consider the submissions of the parties as they relate to the likelihood or otherwise that if successful in either or both of the substantive matters, Dr Chen's reinstatement would be ordered.[40]

[51] In Scott v State of Queensland (Queensland Health),[41] I considered the Full Bench of the Fair Work Commission's decision in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[42] on the question of a claim by an employer to have lost trust and confidence in the dismissed worker. When considering the submissions of the Respondent in this matter, the following principles set out by the Full Bench of the Fair Work Commission are relevant:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration is not the sole criterion or even a necessary one in determining whether or not to order reinstatement;

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts;

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion...[43]

[52] In a situation where, at hearing, Dr Chen is successful in either or both of his substantive applications, the Respondent has clearly stated an intention to argue that reinstatement is not practical. At a hearing, matters to be considered with regard to whether there has been a breakdown in trust and confidence may well include those matters raised by the Respondent in its submissions, such as Dr Chen's post-separation conduct and his response to the substantiated allegation regarding his conduct.

[53] I note Commissioner Knight's finding that Dr Chen's interaction with the nurse did not constitute misconduct. However, I also note that Commissioner Knight found that Dr Chen had breached the Code of Conduct. While, as a result of Dr Chen's dismissal, the disciplinary process did not continue, I understand and note the argument of the Respondent that there remains a disciplinary finding against Dr Chen that it says is relevant to the question of reinstatement. The submissions of the Respondent at the hearing of the interim reinstatement matter foreshadow arguments it will make regarding Dr Chen's insight into his behaviour and the events subject of the discipline matter, including that Dr Chen appears to suggest that the disciplinary matter was influenced by the executives of the GCHHS in circumstances related to his application for conversion to permanent employment.

[54] I also note the submissions made by the Respondent regarding Dr Chen's conduct in making a range of allegations against senior management of the GCHHS throughout these proceedings and the impact of these actions on the employment relationship and trust and confidence the GCHHS may have in Dr Chen. It is clear that in the event Dr Chen is successful at the substantive hearing, the Respondent intends to argue that reinstatement is not practical or appropriate and that Dr Chen should instead receive compensation. Dr Chen's prima facie case with regard to reinstatement could face some challenges at the hearing of the substantive matter when considering the arguments put forward by the Respondent at this interim hearing as to why reinstatement is impracticable.

[55] Having established that there is a serious question to be tried and noting the matters the Respondent has raised with regard to the question of ultimate reinstatement should Dr Chen be successful, I find the remarks of Mortimer J in Rugg instructive:

[59] These are all matters for trial. Much will depend on the whole body of evidence adduced at trial, and its probative value, especially the witness' evidence after it has been fully tested.

[60] In the employment jurisdiction, unless there is something obviously persuasive and incontrovertible in early documentary material produced by an applicant, or there are substantive and core admissions made by the respondent(s), claims of this kind invariably involve starkly different accounts being given by the key participants. It is only through the trial process that a Court can ascertain whose account it considers reliable. That is before the Court even reaches the further two substantive matters of the proper construction of the statutory provisions relied upon, and the application of the law to the facts as found.

[61] In my opinion, on this application the appropriate approach for the Court to take is to recognise that there is a serious question to be tried, that there are arguments of fact and law which may tend to favour the applicant and that there are arguments of fact and law which may tend to favour the respondents. It is neither possible nor appropriate for the Court to go further, because that would involve making findings on contested matters of fact, and contested matters of statutory construction.

[62] Where that leads is to the proposition that this is a case about where the balance of convenience lies. The Court should approach an assessment of the balance of convenience on the basis that Ms Rugg has an arguable case, not fanciful or vexatious or remote, but that it is not possible to make any preliminary assessment of the strength of her case beyond this. In saying that, the Court also finds two further matters:

(a) the points made on behalf of the Commonwealth and Dr Ryan are also arguable, and not fanciful or vexatious or remote; and

(b) on the evidence presented before the Court, there are real divisions in the accounts given by Dr Ryan and Ms Rugg, such that the reliability and credibility of their evidence about what happened during the five months of the employment relationship is going to be critical to the outcome of the proceeding.[44]

[56] Both parties have put forward evidence as to the reasons for Dr Chen's dismissal. Dr Chen has set out the circumstances in which he sought conversion to permanent employment and the way in which his employment came to an end. Dr Chen also discusses actions of the Respondent in employing other specialists, which he says were undertaken to undermine his claim to permanency. The Respondent has put forward its evidence regarding operational and budgetary decisions of the hospital which it says were the motivating factor for Dr Chen's removal from the roster. On the basis that the evidence as it is now will remain unchanged, I find that Dr Chen has established that he has an arguable prima facie case. It is not appropriate for me to form a final view, that is a matter for the hearing, however I also find the Respondent's evidence as it currently stands poses a cogent challenge to the matters Dr Chen alleges. It is clear to me that there is a serious question to be tried at hearing, where the evidence can be tested and where a decision will ultimately be made as to whether Dr Chen's claims of adverse action and unfair dismissal are upheld or the version of events put forward by the GCHHS will prevail.

[57] It is then necessary to consider whether the balance of convenience favours reinstatement.

[58] It must be said that this is not a situation where interim reinstatement is sought for a defined period pending an attempt to resolve the substantive matter or the hearing of the substantive matter. As it stands, the substantive matter, which was due to be heard at the end of 2022, has not been listed for hearing pending the outcome of an appeal. There is a clear prejudice to the Respondent arising from interim reinstatement in circumstances where, as has been well canvassed throughout the hearing of the interim application but also on many other occasions, there is currently no foreseeable point at which these proceedings will come to a final conclusion. In fact, during the hearing of this interim reinstatement application, Dr Chen suggested that in circumstances where the Respondent wished to raise the disciplinary process referred to above, he may 'have to seek leave to amend the general protections' claim.[45]

[59] It is clear that Dr Chen seeks reinstatement rather than other potential remedies and that, as he said at the hearing of this matter, '... there's a potential that if you don't order my reinstatement, I won't actually even be able to litigate the unfairness or unreasonableness of the further decline in my - in the respondent repeatedly, we would say - I would say unfairly and unreasonably responding to my applications for conversion...'.[46] It is not necessary to go into here, but any interim reinstatement of Dr Chen, or indeed possible reinstatement in the event he is successful at the hearing of the substantive matters, would be as a casual worker. Dr Chen was never permanently employed by the Respondent and in order to have his public sector appeal regarding a decision not to convert him heard, he must be employed by the Respondent. However, interim reinstatement will not lead to that appeal being re-enlivened. Vice-President O'Connor has previously ordered that Dr Chen's public sector appeal be placed in abeyance pending the outcome of the substantive matters. Dr Chen subsequently sought to join his public sector appeal to these matters and I refused that application. Dr Chen has appealed that decision and the matter awaits hearing. In the event the public sector appeal was joined to the two matters before me, it would still be considered following the hearing of the substantive matters, not during any period of interim reinstatement. Therefore, there is no prejudice to Dr Chen with regard to the hearing of that appeal which results from not granting his application for interim reinstatement.

[60] At the hearing, Dr Chen said that the 'balance of convenience' would 'really flow from the fact that my return [is] welcome by senior colleagues, including the clinical director'.[47] Dr Chen's written outline of submissions also refers the ongoing trust and confidence and support of his colleagues. While it is possible Dr Chen's colleagues would welcome his return, it is also the case that Dr Chen has made submissions that he would not be pursuing interlocutory reinstatement in circumstances if the Respondent had provided evidence that the doctor he says has been temporarily appointed in his place had 'superpowers' or 'extra credentialling' that would make Dr Chen's role 'rationally redundant'. With respect, Dr Chen's views regarding the skills, talents or credentials of anyone the GCHHS has determined to employ in any capacity since Dr Chen's termination is not a matter I need to consider with regard to the interim reinstatement application.

[61] Notwithstanding Dr Chen's submissions that his colleagues would welcome his return on an interim basis, I am of the view that the current state of the relationship between the GCHHS and Dr Chen is such that reinstating Dr Chen on an interim basis would cause significant prejudice to the Respondent. Dr Chen's submissions leave me with the impression that he has continued to remain in contact with some of his work colleagues and that he has agitated his grievances with them and relied upon information being provided by them to draw his own conclusions about the current state of the workplace. I am concerned that interim reinstatement may cause disruption in the workplace, particularly in circumstances where Dr Chen has several matters on foot in the Court and Commission. It is one thing for the parties to find a way to work together long term in the event of final reinstatement, however, putting the parties to the trouble of creating a pathway for Dr Chen to satisfactorily return in an interim way pending a trial at which a range of employees of the GCHHS will be likely be called to give evidence, seems to me to be likely to cause prejudice to the Respondent.

[62] Dr Chen made submissions regarding the specialised nature of his work and contended that if he is unable to perform particular procedures in order to 'maintain competence' it will have a 'serious consequence' for him.[48] Dr Chen submits that there are authorities for the proposition that a termination can be unfair where the person was employed in a highly specialised role. However, I also note the Respondent's reference to Dr de Wet's evidence which is that there is nothing needed to be done by Dr Chen at the GCHHS to enable him to be accredited. While the Respondent notes that it 'would be better' for Dr Chen to undertake more specialist procedures to keep his skills up, it points out that there is no suggestion Dr Chen would lose accreditation or not be able to work in the private system or other hospitals if he was not working at the GCHHS. I conclude that to work at the GCHHS may be Dr Chen's preference but that it is not essential to him maintaining the capacity to undertake work in his specialisation. The Gold Coast is not an isolated location and I am satisfied that there are other healthcare settings where Dr Chen is able to undertake work in his specialisation pending the outcome of the substantive hearing. Dr Chen has not been working at the GCHHS for some years now and I find that any inconvenience to Dr Chen in not working there pending the final outcome of the matters does not overcome the prejudice to the GCHHS in having Dr Chen return in circumstances where it says it does not require his services.

[63] There is evidence to suggest that the GCHHS has currently arranged its staffing such that if the final outcome of these proceedings is that Dr Chen is reinstated, it is in a position to do so. Dr Chen has pointed this out several times. The mere capacity of the Health Service to terminate the employment of another worker in order to facilitate Dr Chen's return (or employ him in addition to its current staffing) does not add to his prima facie case for reinstatement. Nor does any suggestion from Dr Chen that there is evidence that the roster would have been easier to fill had he been an additional available doctor. That a roster is easier to fill when there are surplus people available to be added to it is a simply matter of fact.

[64] I find that the balance of convenience does not favour Dr Chen's interim reinstatement.

[65] With regard to Dr Chen's submissions about any protection the Award may offer him in the form of maintaining the status quo, it remains unclear to what extent the Award applied to Dr Chen under his employment arrangements. It is also the case that Dr Chen's substantive claims do not refer to him commencing a dispute under the Award. In any case, the Award preserves the status quo that exists at the time that a dispute is raised. Dr Chen did not file this interim application until well after his employment had come to an end, either by way of his removal from the roster, not receiving any more shifts or by termination of employment.

[66] This is one of the curious aspects of this application for interim reinstatement. Such an application is usually pursued in close proximity to the termination or notice of termination. That is why considerations regarding a sufficient prima facie case and the balance of convenience are undertaken with a view to determining whether the status quo should be preserved. With regard to the preservation of the status quo, I observe that at the time that Dr Chen made this application for interim reinstatement on 17 February 2023, he had not been allocated shifts on the roster since December 2020 and had not been employed by the GCHHS since May 2021. Even in circumstances where Dr Chen had successfully argued that the balance of convenience favoured interim reinstatement, the status quo is that Dr Chen is not employed by the GCHHS and has not been for almost two years.

The delay in Dr Chen bringing this application

[67] With regard to the initial interim reinstatement application filed on 10 May 2021, there is no evidence that Dr Chen sought to bring his initial application for interim reinstatement back on before Dwyer IC following the resolution of any jurisdictional matters. I will not address that matter further here, except to note that Dr Chen's application before me was made some 18 months or more after that original application. Dr Chen has filed a number of applications and appeals since that time, and so I agree with the Respondent that it is open to me to find that Dr Chen made a deliberate decision not to seek interlocutory reinstatement during that long period of time. In the absence of a reasonable explanation, delay is a sufficient reason to refuse the application and an important matter to consider in determining whether to grant the interim relief.[49]

[68] Dr Chen said at the hearing that the reason he chose not to agitate the interim reinstatement matter in 2021 was due to the cost of further litigation.[50] I am not persuaded by this submission in circumstances where Dr Chen has gone on to file several interim applications and appeals since that initial interim reinstatement application, including while legally represented. Further to that, Dr Chen has demonstrated a capacity and willingness to represent himself in proceedings, incurring no costs other than those which may be awarded against him as a result of applications brought by the Respondent. I am also aware that Dr Chen has not filed any material regarding his financial position or circumstances.

[69] Dr Chen has not demonstrated an urgent need to return to his role. He did not seek to agitate the initial interim application in 2021 and did not make this application until many months later, and in fact, several months after the hearing of the substantive matters were originally slated to take place.

[70] I understand Dr Chen's argument that these proceedings could take a long time and that he is disadvantaged by not being reinstated in the interim. However, Dr Chen has made a range of choices with regard to his conduct of these matters which are the overwhelming cause of any delay. It is entirely open to Dr Chen to exercise appeal rights and file interlocutory applications. However, the reality of this is that the substantive matters cannot be heard while appeals or interlocutory matters are pending. Dr Chen notes my remark at the mention for this interim reinstatement application that his substantive matters may not be decided for some years. It is now early May and it is unknown at what point Dr Chen's matter will be able to be set down for hearing. In the period while his interim applications and appeals await hearing and decision, other matters are being set down for hearing, making it possible that Dr Chen's matter will not be able to be listed until the end of 2023 or sometime in 2024. The initial application for the general protections matter was filed in December 2020 and the unfair dismissal matter was filed in May 2021. While I understand Dr Chen's argument that he is disadvantaged by not being employed in the interim, I find that there is a greater disadvantage to the Respondent if interim reinstatement is granted, particularly in circumstances where there may be many months or years between any order for interim reinstatement and the eventual hearing and outcome of the matter. This is particularly in circumstances where, the GCHHS submits that it does not currently have an operational requirement for Dr Chen's services and that his reinstatement may have an impact on other health services.

[71] The delay in making this application weighs heavily against granting the interim reinstatement sought by Dr Chen.

[72] Having considered all of the material and the parties' submissions, I am satisfied that on the current state of the evidence, Dr Chen has established a prima facie case. I am also satisfied the Respondent has presented cogent arguments in response to Dr Chen's case. There is a serious question to be tried.

[73] With regard to the balance of convenience, for the reasons given above, I find that the prejudice to the GCHHS should interim reinstatement be ordered outweighs the prejudice to Dr Chen. This is particularly the case where not receiving interim reinstatement has no impact on Dr Chen's opportunity to have his appeal against the decision not to convert his employment to permanent considered. That appeal will be heard should the substantive matters be resolved in his favour.

[74] The delay in filing this application for interim reinstatement is significant. It does not support any argument that there is an urgent need for Dr Chen to be reinstated and is such that the Respondent finds itself in a very different position with regard to the interlocutory application than it may have had it been filed (or the original application re-enlivened) with any sense of urgency following the resolution of any potential jurisdictional issues as to whether the employment had been terminated.

[75] In any case, the status quo prior to the interim reinstatement application was that Dr Chen has not worked at the GCHHS since December 2020. In that sense, there is nothing to 'preserve', even if the balance of convenience had favoured granting the relief sought by Dr Chen.

[76] For the foregoing reasons, the application for interim reinstatement is dismissed.

[1] I note that Dr Chen filed his application for reinstatement on 12 March 2021, however the Respondent maintained a jurisdictional objection to the proceeding on the basis that Dr Chen had not been dismissed until 21 May 2021 when it determined not to press that objection and stated that Dr Chen had been dismissed.

[2] I note also that the Public Service Act 2008 (Qld) is now repealed and under the new Public Sector Act 2022 (Qld) which commenced on 1 March 2023, public service appeals are now referred to as 'public sector appeals'.

[3] Chen v State of Queensland (Queensland Health) [2021] QIRC 249.

[4] Chen v State of Queensland (Queensland Health) [2021] QIRC 369.

[5] [2022] ICQ 15.

[6] Chen v Gold Coast Hospital and Health Service [2021] QIRC 235.

[7] [2006] HCA 46, citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 ('ABC v O'Neill').

[8] ABC v O'Neill (n 7) [65] (emphasis added) (citations omitted).

[9] [2018] ICQ 006, [34]-[38] ('Dalley v Kelsey') (citations omitted).

[10] Ibid [42]-[43], citing Bulstrade v Trimble [1970] VicRp 104; [1970] VR 840, 849; Webster v Lampard (1993) 177 CLR 599, 604, 608, 610; Clayton v Aust (1993) 9 WAR 364, 373; Hull v Thompson [2001] NSWCA 359, [21]; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; Ali v Nationwide News [2008] NSWCA 183.

[11] Dalley v Kelsey (n 9) [46] (emphasis added) (citations omitted).

[12] T 1-2 - T 1-47; Dr Chen addressed all of these matters in oral submissions in support of his outline of argument at the hearing on 15 March 2023.

[13] Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 2; Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 12.

[14] T 1-20, ll 10-32 (Dwyer IC, 12 May 2021).

[15] Applicant's Outline of Argument filed 6 March 2023, [28].

[20] I note that O'Connor VP had previously ordered that Dr Chen's appeal against the decision to not convert his employment to permanent be placed in abeyance pending the outcome of the substantive matters. I also refused to join the public sector appeal to these matters and that decision is currently under appeal.

[21] Respondent's Outline of Argument filed 13 March 2023, [7]; Dalley v Kelsey (n 9) [46], citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726; 184 IR 333 ('Blue Star').

[22] Rugg v Commonwealth of Australia represented by the Department of Finance [2023] FCA 179, [56] ('Rugg').

[24] [2013] FCA 1250, [84]

[25] Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479, [93] ('Guthrie') (citations omitted).

[26] Dalley v Kelsey (n 9) [42]-[43].

[27] Affidavit of Dr Carl de Wet affirmed 14 June 2022; Affidavit of Ms Karlene Willocks affirmed 5 May 2021; Affidavit of Ms Karlene Willcocks affirmed 16 June 2022; Affidavit of Mr Grant Brown affirmed 9 June 2022; Affidavit of Dr Kee Meng Tan affirmed 23 June 2022.

[28] Dalley v Kelsey (n 9) [52]-[54].

[29] McAllan v National Prescribing Service trading as NPS Medicinewise [2017] FCCA 3151, [20].

[32] Lee v Superior Wood [2020] FWCFB 1301; 295 IR 242, [55].

[35] Applicant's Outline of Argument filed 5 March 2023, [8], [8(i)], [8(j)], [8(k)], [9], [11], [18], [23].

[36] Affidavit of Grant Brown affirmed 9 June 2022, exhibit GB-26.

[37] Affidavit of Dr Carl de Wet affirmed 14 June 2022.

[38] American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504; Blue Star (n 21) [21].

[39] [2023] FCA 179, [40].

[40] Blue Star (n 21) [21]; Australian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627; 100 IR 383, [55].

[41] [2022] QIRC 488.

[42] [2014] FWCFB 7198.