Gan v Sydney Pain Day Surgery Pty Ltd [2025] FedCFamC2G 2141

1. The respondents are restrained from taking any action to permanently remove or replace the applicant in her substantive role as Director of Nursing/Operations Manager until further order of the Court.
2. The respondents are restrained from terminating or purporting to terminate the applicant's employment until further order of the Court.
3. The matter is listed for directions at 9:15 am on 29 January 2026.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 24 June 2025, Ms Gan lodged an interlocutory application seeking orders to restrain the respondents, Sydney Pain Day Surgery Pty Ltd (SPDS) and Dr Vahid Mohabbati, from taking specified steps in relation to Ms Gan (Restraint Application). On 9 September 2025, I heard the Restraint Application. This judgment contains my reasons for decision in respect of the Restraint Application.

1. The following factual background assists in understanding Ms Gan's application. Most of the information is sourced from an affidavit of Ms Gan, including a paginated bundle of annexures, filed on 25 June 2025 (Gan Affidavit), and Ms Gan's second amended statement of claim filed in this Court on 14 August 2025 (ASC).
2. On 2 September 2024, Ms Gan commenced employment with SPDS pursuant to a written contract of employment dated 23 July 2024 (Employment Contract): pages 2-9 of Gan Affidavit. Ms Gan is a registered nurse: ASC at [1]. SPDS is a private company which operates a day surgery business: ASC at [1]. Dr Mohabbati is a medical practitioner and a director and the principal of SPDS. Ms Gan commenced employment in the position of "Operation Manager / Director of Nursing": page 2 of Gan Affidavit.
3. Some features of the Employment Contract are as follows:

(a) There was a probationary period of 6 months.

(b) The annual salary was $170,000 plus superannuation. A term titled "Remuneration Review" was:

Provided you achieve all the KPIs (attachment 6) within 6 months of employment, you will be entitled to an annual salary increase up to $180,000 ... plus super.

(c) A document attached to the Employment Contract, titled "Key Performance Indicators" lists 22 key performance indicators (KPIs) divided into four groups: page 12 of Gan Affidavit.

1. On 6 March 2025, there was an exchange of text message between Ms Gan and Dr Mohabbati concerning staffing: pages 15-17 of Gan Affidavit.
2. On 13 March 2025, Ms Gan sent an email to Dr Mohabbati stating: (page 20 of Gan Affidavit)

As I have just passed my six-month mark with Sydney Pain Day Surgery, I wanted to check in if we need to schedule a time to discuss my progress, feedback regarding my probationary review and rate increase stipulated in my contract.

1. On 17 March 2025, Dr Mohabbati replied in an email: (page 19 of Gan Affidavit)

Thanks for the reminder. As discussed, your performance has been satisfactory and you are entitled to a raise as per your contract ...

1. On 20 and 21 March 2025, there was an exchange of emails between Ms Gan and Dr Mohabbati in which Ms Gan recommended "the critical need to include clear disclaimers on all our cost estimates and informed financial consent documents" and Dr Mohabbati replied that SPDS had "a very transparent and clear IFC with clear disclaimer" and Ms Gan was "not across this issue" and was "advocating for patients in the areas not relevant to you": pages 22-24 of Gan Affidavit.
2. On 21 March 2025, Dr Mohabbati received a text message from the general practitioner of a patient of SPDS who stated that the patient "had a fall ... while waiting to go home last Friday". Dr Mohabbati forwarded the text message to Ms Gan who offered to "investigate further". There was then a text message exchange between Dr Mohabbati and Ms Gan as follows (text messages tendered at hearing on 9 September 2025):

M: It's a huge concern that the patient was sent out alone and centre closed. Assume you were out too?

G: I think I remember this patient, she was discharged from stage 1, and stage 2 was waiting for pick up after past our opening hours. She would have signed a discharge waiver.

M: Please investigate and make sure this won't happen again.

G: Yes I will

...

M: No patient should be let off without supervision.

G: OK noted, as historically there were patients who were discharged with waivers and insisted to leave the premises to call for an uber. I will make sure someone stays back.

1. On 22 March 2025, Ms Gan received from SPDS a document titled "Performance Review - 6 months" (Performance Review). The upper half of the document recorded, for each of the 22 KPIs in the document annexed to the Employment Contract, whether Ms Gan met the KPIs. Ms Gan "met" eight KPIs, "90% met" four KPIs, "partially met" four KPIs, and did "not meet" five KPIs. The lower half of the document added comments about Ms Gan's performance, including:

As DON you need to spend more time watching staff doing their jobs rather than spending time in your office ... You are expected to know a lot more about interventional pain medicine by now and teach staff ... You still haven't been able to secure other surgeons to come and use the facility. Running costs including staff remain high and this needs attention ... Overstepping into matters that are not relevant to you is a serious breach of your contract. Please be mindful of your duties.

I ... encourage you to keep up with the good work and improve on the areas of concern.

1. In the absence of an explanation from the respondents, it is difficult to reconcile:

(a) Dr Mohabbati's representation in his email dated 17 March 2025 that Ms Gan is "entitled to a raise as per your contract", which implies Dr Mohabbati considered Ms Gan had achieved, met or satisfied all 22 KPIs; and

(b) the Performance Review which stated that Ms Gan had not met many of the KPIs, that Ms Gan had engaged in conduct which involved "a serious breach of your contract" and Ms Gan must "improve on the areas of concern".

1. According to Ms Gan, on 25 March 2025 Ms Gan and Dr Mohabbati met to discuss the Performance Review: ASC at [31].
2. On 28 March 2025, Ms Gan provided a four-page letter to Dr Mohabbati responding to the Performance Review: pages 28-31 of Gan Affidavit.
3. On 2 April 2025, Ms Gan sought assistance from her union and the union began making enquiries on Ms Gan's behalf: ASC at [14].
4. On 3 April 2025, there was an exchange of emails between Ms Gan and Dr Mohabbati concerning whether SPDS had inappropriately not paid Ms Gan for about two hours' work in the week ending 2 April 2025: pages 35-38 of Gan Affidavit. According to Ms Gan, on 12 June 2025, SPDS paid Ms Gan for the two hours' work and thereby implicitly acknowledged its error: ASC at [40].
5. On the evening of 7 April 2025, Ms Gan informed SPDS that she was unfit for work on 8 April 2025: Gan Affidavit at [16]. She submitted a doctor's certificate covering the day.
6. On the evening of 7 April 2025, Dr Mohabbati, following receipt of the communication in the above paragraph, sent a WhatsApp message to Ms Gan stating:

Hope you're okay Vivien. Odd you're falling ill the nights before our op days.

1. On 8 April 2025, Ms Gan saw a medical practitioner to obtain a certificate of capacity for workers compensation purposes. According to the certificate, Ms Gan stated that she sustained a psychological injury at work on 21 March 2025: pages 42-44 of Gan Affidavit. The medical practitioner certified that Ms Gan had no current capacity for any work between 8 and 29 April 2025.
2. On 8 April 2025, Ms Gan formally submitted the "WorkCover Certificate of Capacity": Gan Affidavit at [17]; ASC at [20]; admitted by respondents in paragraph 20 of defence to ASC. It is unclear from the evidence before the Court whether the respondents became aware of the workers compensation claim on 8 April 2025. It is suggested by the respondents' lawyer in paragraph 8(ii) of a written submission to the Court that the respondents did not become aware of the workers compensation claim until 14 April 2025.
3. At 5 pm on 8 April 2025, there was a meeting of a committee of SPDS known as the Medical Advisory and Audit Committee (ASC at [41]) (MAAC). According to the minutes of the committee meeting (page 46 of Gan Affidavit):

(a) The single matter discussed was "the performance, patient safety-related decision making, and leadership of the current Director of Nursing - Vivien Gan".

(b) The committee resolved:

"that opportunity will be given to Vivien Gan for redress of performance shortfalls as identified in the recent performance review (dated 22 March 2025)"

"that Vivian Gan be temporarily stood down as Director of Nursing"

"An Acting Director of Nursing will be sought and appointed in the meantime"

1. In the absence of an explanation from the respondents, the resolution at the meeting on 8 April 2025 is difficult to reconcile with the Performance Review. For example, there was no demand in the Performance Review that Ms Gan "redress ... performance shortfalls" and there was no suggestion that Ms Gan might be stood down as Director of Nursing.
2. In the absence of evidence of clear problems with Ms Gan's work performance which surfaced between 18 March and 8 April 2025:

(a) The change in attitude by Dr Mohabbati towards Ms Gan in this period is striking.

(b) There might be some force in Ms Gan's complaint that the temporal link between the medical certificates provided or submitted on 7 and 8 April 2025 and the respondents' conduct suggests "a retaliatory motive": ASC at [21].

1. Further, at the hearing on 9 September 2025, Ms Gan stated that, while MAAC meetings are usually convened with one months' notice, first, Dr Mohabbati convened the meeting on 8 April 2025 on one day's notice - by giving notice of the meeting on the evening of 7 April 2025. Second, Dr Mohabbati did not, in giving notice of the meeting, inform committee members of the subject matter of the meeting. In the absence of an explanation from the respondents, this conduct of Dr Mohabbati is puzzling.
2. According to Ms Gan, by 9 April 2025 Ms Gan was stood down from her role and her access to SPDS's workplace systems was revoked.
3. On 18 April 2025, Dr Mohabbati sent a message to the staff of SPDS stating in part:

Vivien is away on work cover due to illness for the next 12 weeks. We wish her well and a speedy recovery. MAC has decided to step Vivien down from her role ... we will be looking into filling up the role with a suitable candidate in near future.

1. Yet again, between 8 and 18 April 2025 there was another unexplained shift in the respondents' treatment of Ms Gan. Specifically, as stated in the minutes of the meeting on 8 April 2025, SPDS decided that Ms Gan would be given an "opportunity ... for redress of performance shortfalls as identified in the recent performance review". But by message dated 18 April 2025, Dr Mohabbati communicated to staff that SPDS "has decided to step Vivien down from her role" without giving Ms Gan an opportunity to redress the asserted performance shortfalls.
2. On 29 May 2025, SPDS received a "formal complaint" from the patient of SPDS who claimed to have sustained an injury on 14 March 2025 while leaving SPDS following an operation that day (May 2025 Patient Complaint): page 51 of Gan Affidavit. It appears to be part of the respondents' case that, until receipt of this "formal complaint", the respondents were not aware of a complaint by the patient against Ms Gan which might explain the significant change in Dr Mohabbati's attitude towards Ms Gan between 18 March and 8 April 2025 as explained above: see paragraph 57 of the respondents' response to the ASC.
3. On 4 June 2025, Dr Mohabbati sent a letter to Ms Gan inviting her to attend a disciplinary meeting (June 2025 Letter): page 51-52 of Gan Affidavit. The letter commenced by setting out an allegation against Ms Gan as follows:

It is alleged that on 14 March you left a patient who had an operation on her shoulder under sedation and had received significant amounts of Fentanyl after their surgery unsupervised for an extended period outside of the Sydney Pain Day Surgery. Patient shortly after had lost consciousness and hit her head to the concrete and sustained head injury for which she continues to suffer and receive medical care. Specifically, it is alleged that [the patient] completed her day procedure under local/sedation for PRP and right shoulder RFA, April alleges she was forced out against her wish for an earlier discharge before her husband could pick her up and was instructed to 'wait outside' whilst her husband was travelling to collect her. [The patient] alleges that she was given a paper to sign that she did not understand what it was and then told to wait outside. [The patient] stated she was confused at the time and could not collect herself properly or understand the instructions fully as she was still under the effects of anaesthetic drugs. It is alleged that upon being left unsupervised, the patient was then requested to leave the premises/reception due to early closure of the Sydney Pain Day Surgery. This resulted in the patient waiting outside the premises for a significant period to which she began experiencing various medical symptoms which including fainting and falling onto the ground and subsequently sustaining an injury to their forehead and experiencing faecal incontinence and head and neck injury. Allegedly, [the patient] was contacted by you the following Monday for a check. The Director and Management were unaware of the issue and it was only a week later when her GP texted Dr Mohabbati asking for a Brain CT that the SPDS became aware of the incident. It is noted that the patient has been admitted to Campbelltown hospital since the incident. The Company was made aware of the of a formal complaint on 29/05/25 by [the patient].

If substantiated, such conduct is considered serious misconduct under the Fair Work Regulations and has the potential to cause a serious and imminent risk to the health or safety of a person and also cause serious and imminent risk the reputation, viability or profitability of the employer's business.

A copy of the statement from the patient is attached in Annexure A.

1. Neither Ms Gan nor the respondents tendered "the statement from the patient" at the hearing of the Restraint Application. In the absence of the statement from the patient, it is not clear from Dr Mohabbati's letter whether the patient expressly alleged that Ms Gan was the person who "forced [the patient] out against her wish" or "instructed [the patient] to wait outside" or "requested [the patient] to leave the premises/reception due to early closure" of SPDS. While the first sentence of the letter alleges that "you left [the] patient ... unsupervised for an extended period outside of" SPDS, it remains unclear whether:

(a) the patient alleged that Ms Gan personally forced her out and instructed her to wait outside; or alternatively

(b) the patient made no direct allegation against Ms Gan but SPDS considered that Ms Gan, as Director of Nursing, should be held responsible for wrongful conduct by an employee under Ms Gan's supervision.

If proven, these matters may result in the termination of your employment without notice.

Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to these particular allegations.

This disciplinary meeting is to be conducted at 3PM on Tuesday 10 June 2025 at Sydney Pain Day Surgery ...

...

The company confirms a representative of Peninsula Australia will be present at the meeting. The role of the Peninsula representative is to support/facilitate the meeting and to ensure procedural fairness.

I will have sole responsibility for the conduct of this meeting, together with any resulting decision which is to be made.

You are of course welcome to bring a support person to this meeting should you choose.

1. According to Ms Gan, "it was not plausible for [Ms Gan] to have committed the alleged misconduct [because] her contact with the patient on 14 March was minimal (limited to explaining a procedure waiver before the surgery) and she left work early that day": ASC at [57].
2. On 6 June 2025, a union officer assisting Ms Gan sent an email to Dr Mohabbati stating that Ms Gan "should not be required to attend a disciplinary meeting whilst she is not fit for work": page 54 of Gan Affidavit.
3. Ms Gan has not yet attended the disciplinary meeting envisaged in the letter.
4. According to Ms Gan, on 9 June 2025 she lodged a formal workplace safety complaint with SafeWork NSW: Gan Affidavit at [27].

Events up to interlocutory hearing on 9 September 2025

1. On 19 June 2025, Ms Gan lodged in this Court an application under the Fair Work Act 2009 (Cth) (FW Act). The application included a request for "an interim injunction restraining the respondents from commencing or continuing any disciplinary or termination process against the applicant (including any action to terminate her employment) until final determination of the claim".
2. On 19 June 2025, Ms Gan also lodged:

(a) a claim in accordance with the approved form; and

(b) a statement of claim.

1. On 24 June 2025, Ms Gan lodged the Restraint Application.
2. On 14 August 2025, Ms Gan filed the ASC.
3. On 1 September 2025, the respondents filed a response. Although an opening paragraph of the document describes the document as a response "to the statement of claim filed by the applicant on 8 July 2025", the document appears to be a defence to the ASC filed on 14 August 2025.
4. On 6 August 2025, I listed the Restraint Application for hearing on 2 September 2025. In the meantime, the respondents agreed not to take any steps the subject of the orders sought in the Restraint Application.
5. On 26 August 2025, the applicant filed a written submission.
6. On 29 August 2025, the respondents filed a written submission (RS).
7. On 2 September 2025, the Restraint Application was initially listed for hearing. The parties engaged in settlement discussions. The interlocutory application did not settle. On 4 September 2025, I listed the Restraint Application for resumed hearing on 9 September 2025.

1. The following paragraphs summarise some matters pleaded by Ms Gan in the ASC.
2. Ms Gan pleads that between March and June 2025 she exercised workplace rights and the respondents took adverse action against Ms Gan because she exercised the workplace rights, in contravention of s 340 of the FW Act. Ms Gan particularises the adverse action as follows (at [86]):

(a) injuring the applicant in her employment by public verbal reprimand on 21 March 2025, withholding contractually entitled salary increases, and reducing wages through unilateral timesheet adjustments;

(b) altering the applicant's position to her prejudice by standing her down from the Director of Nursing role and removing her workplace access; and

(c) discriminating between the applicant and other employees by acting upon unsubstantiated race-based staff complaints without any investigation

1. An incomplete summary Ms Gan's pleaded exercise of workplace rights and the adverse action is set out in paragraphs 5 to 34 above.
2. In relation to other contraventions of the FW Act, Ms Gan pleads:

(a) The respondents made misleading representations about workplace rights - at [87].

(b) The respondents breached s 536 of the FW Act in connection with the issue of a pay slip - at [88].

(c) The respondents engaged in discriminatory adverse action in contravention of s 351 of the FW Act - at [89].

(d) The respondents took action against Ms Gan with intent to coerce her not to exercise a workplace right, in contravention of s 343 of the FW Act - at [82]-[85] and [90]. Part of the coercive conduct is pleaded as follows:

On 4 June 2025, while the applicant remained on workers' compensation and [was] medically unfit to participate, the Respondents proceeded with disciplinary allegations of "serious misconduct" based on a stale complaint, refusing union requests for deferral. This conduct was designed to pressure the Applicant to abandon her workers' compensation claim and return to work to defend herself, despite medical certification of unfitness.

(e) The respondents took adverse action against Ms Gan because she was a member of a union and engaged in industrial activity, in breach of s 346 of the FW Act - at [91].

1. Ms Gan pleads at [96] that she has suffered loss, comprising:

(a) economic loss; and

(b) non-economic loss, including psychological injury and reputational harm

1. The relief sought by Ms Gan includes declarations that the respondents contravened specified sections of the FW Act, compensation for economic and non-economic loss, penalties, and injunctions pursuant to s 545(2)(a) of the FW Act necessary to prevent further contraventions.

1. Ms Gan seeks the following relief in the Restraint Application:
   1. That the Respondents, whether by themselves, their servants or agents, or otherwise howsoever, be restrained from terminating or purporting to terminate the Applicant's employment.
   2. That the Respondents be restrained from initiating or progressing any disciplinary process in relation to the Applicant (including issuing any findings or notice of termination).
   3. That the Respondents be restrained from taking any action to permanently remove or replace the Applicant in her substantive role as Director of Nursing/Operations Manager.
   4. That the Respondents be restrained from representing to any third party, including any staff, patients, or professional contacts, that the Applicant has been or will be terminated or stood down for alleged misconduct.
   5. That the Respondents be restrained from taking any further adverse action against the Applicant within the meaning of section 342 of the Fair Work Act 2009 (Cth).
   6. That the Respondents be restrained from disclosing the Applicant's confidential health or personal information (including WorkCover status or medical condition) to any person, except as required by law or with the Applicant's consent.
   7. That the costs of this interlocutory application be reserved.

1. The resumed hearing of the Restraint Application took place on 9 September 2025. The parties appeared by video link. Ms Gan was unrepresented. Mr Troy Plummer of Irwell Law appeared for the respondents.
2. Ms Gan read the Gan Affidavit. The respondents did not tender any evidence.
3. Mr Plummer offered an undertaking, in place of the restraining orders sought by Ms Gan concerning the disciplinary investigation and termination of employment, that the respondents would take the following steps:

...

1. The Respondents, will within 14 days of the date of this order, provide in writing to the Applicant, the Allegations regarding the incident of 14 March 2025, to which she is to answer.

2. The Applicant, will within a further 14 days, provide her response to the allegations provided pursuant to order 4 above.

6. The Respondents, will within a further 14 days:

a) consider the Applicants response provided pursuant to order 5 above, and provide in writing its determination and reasons for such determination of the allegations above.

b) In the event that the Respondents determination in accordance with order 6(a) above is to substantiate the allegations, and propose disciplinary action, the Respondents will state in writing, in the reasons, the proposed disciplinary action, or actions, under their consideration.

1. The Applicant will, within a further 14 days, provide in writing her response to the proposed disciplinary action, or actions, proposed in accordance with order 6(b) above.
2. The Respondents will within a further 14 days consider the Applicant's response provided pursuant to Order 7 above and provide in writing to the Applicant their intended disciplinary outcome.
3. If the Respondents proposed disciplinary outcome pursuant to order 8 above is termination of the Applicant's employment, the Respondents will provide 21 days written notice to the Applicant of the intention to terminate her employment.
4. If the Respondents propose to terminate the Applicant's employment for any other reason, other than provided for by order 9 above, including but not limited to medical incapacity, the Respondent will provide the Applicant with 21 days written notice of such intention.

1. I then heard oral submissions from the parties.

1. Section 545(2)(a) of the FW Act empowers the Court to make "an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention".
2. As Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 (O'Neill) at [19], in all applications for an interlocutory injunction the court will ask whether the plaintiff has shown that:
   • there is a serious question to be tried as to the plaintiff's entitlement to relief; and
   • the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and
   • the balance of convenience favours the granting of an interlocutory injunction.
3. In considering whether there is a serious question to be tried, the court addresses itself to whether the plaintiff has made out a prima facie case. In considering whether the plaintiff has made out a prima facie case, "it is sufficient that the plaintiff shows a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial": O'Neill at [65].
4. One order sought by Ms Gan is that the respondents "be restrained from initiating or progressing any disciplinary process in relation to the applicant". As explained by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382; 190 IR 218 (Jones) at [23]-[26], different views have been expressed in Federal Court decisions as to whether a disciplinary investigation may amount to "adverse action" within the meaning of s 342 of the FW Act. Collier J at [23] considered that "the commencement of an investigation" by an employer into allegations against an employee arguably constituted "adverse action". In Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; 191 FCR 212 at [57] the Full Court referred to the "conflict of authority on the question whether being liable to investigation or disciplinary proceedings can constitute a sufficient alteration of the position of an employee to that employee's prejudice to amount to adverse action".
5. A question is whether disciplinary action against an employee in the workplace can damage the employee's reputation and, if so, whether damages is an adequate remedy. It is recognised that publicity associated with a disciplinary investigation "is invariably capable of damaging the reputation of an employee": Jones at [27], referring to Police Federation of Australia v Nixon [2008] FCA 467; 168 FCR 340 at [42]- [43]. It is also recognised that, where such reputational damage occurs, damages would not provide an adequate remedy: Jones at [49], referring to Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622; 152 IR 75 at [29]. See also Quinn v Overland [2010] FCA 799; 199 IR 40 (Quinn) at [108] and [113].

Whether serious question to be tried as to applicant's entitlement to relief

1. The respondents acknowledge at RS [17] "that [Ms Gan] will likely satisfy the prima facie test". The respondents thereby appear to accept that there is a serious question to be tried as to Ms Gan's entitlement to relief. Based on the evidence before me in relation to the Restraint Application, I consider this concession is appropriately made.

Whether applicant likely to suffer injury for which damages will not be an adequate remedy

1. Ms Gan is a registered nurse who presently holds a managerial position in the respondents' medical practice and, if required to find other employment, would be competitive for similar senior or management positions. She claims to have suffered reputational damage as a result of the respondents' conduct to date. She contends that, if an interlocutory injunction is not granted, she will suffer further reputational damage. For example, she states in the Gan Affidavit at [38]:

Terminating my employment ... would cause irreparable harm to my professional reputation ...

1. As explained above, prior to the respondents receiving the May 2025 Patient Complaint in late May 2025, the true reason for Dr Mohabbati's concerns about Ms Gan's work performance are not clear. Following receipt of the May 2025 Patient Complaint, the respondents appear to have two sets of concerns about Ms Gan's conduct as follows:

(a) The first set of concerns are recorded in the Performance Review dated 22 March 2025.

(b) The second set of concerns arise from the May 2025 Patient Complaint.

1. I consider that if Ms Gan was disciplined, or her employment was terminated, on the basis of either set of concerns, as in Jones at [49], this would have a detrimental effect on Ms Gan's reputation and impose a stigma which could adversely affect her future career prospects.
2. In Jones at [49] Collier J considered that damages would not provide an adequate remedy to compensate Ms Jones for the detriment and stigma. Similar findings have been made in cases such as Quinn.
3. The respondents contend at RS [21] that:

The remedies available under ss 545 and 546 of the Act are comprehensive and ensure that should the Court ultimately find a contravention of the general provisions and any other provisions of the Act, the applicant will be compensated for any loss suffered. The remedies provided for by ss 545 and 546 of the Act are sufficient to address any harm said to arise from dismissal ...

1. The respondents have not identified a court decision in which the court found that an award of damages under the FW Act or otherwise, in a situation similar to the present, would provide an adequate remedy.
2. I am satisfied that, as in Jones at [49], damages in the present matter would not provide an adequate remedy.

Whether balance of convenience favours grant of interlocutory injunction

1. The respondents state at RS [7] that the orders sought by the applicant in the Restraint Application logically arise in the following sequence:

(a) that the respondents be restrained from representing to any third party, including any staff, patients or professional contacts, that the applicant has been or will be terminated or stood down for alleged misconduct (order 4);

(b) that the respondents be restrained from disclosing confidential health or WorkCover information without lawful basis (order 6);

(c) that the respondents be restrained from taking any further adverse action under s 342 of the FW Act (order 5);

(d) that the respondents be restrained from initiating or progressing any disciplinary process in relation to the applicant (order 2);

(e) that the respondents be restrained from removing or replacing the applicant in her substantive position (order 3); and

(f) that the respondent be restrained from terminating or purporting to terminate the applicant's employment (order 1).

1. The respondents then state in relation to the above orders:

(a) The respondents do not object to the Court making orders 4, 6 and 5, although "it is unnecessary to do so, as the applicant has not provided any evidence to substantiate that the respondents have breached, or are at risk of breaching those orders": RS [9].

(b) The respondents strenuously oppose the Court making order 2 "as it would unnecessarily constrain [the respondents'] managerial prerogative": RS [10].

(c) The respondents also oppose the Court making orders 3 and 1. These orders "are pre-emptive in nature, directed at obstructing conduct that has not occurred" and in respect of which there is no "imminent risk" that the conduct will occur: RS [11].

(a) I will make orders 4 and 6.

(b) I will make a modified version of order 2 which permits the respondents to finalise the investigation arising from the May 2025 Patient Complaint, but take no further steps without further order of the Court.

(c) I will make orders 3 and 1, although subject to further order of the Court.

1. First, as explained above, based on the evidence before me, I am concerned about aspects of the respondents' conduct towards Ms Gan in March and April 2025. The respondents chose not to file evidence for the hearing of the Restraint Application. If this matter progresses to final hearing, the respondents will file and tender evidence at the final hearing. The evidence may provide a satisfactory explanation for:

(a) Dr Mohabbati's significant change in attitude towards Ms Gan between 17 March and 8 April 2025; and

(b) his opinion on 8 April 2025 that she had "performance shortfalls" which justified her being "temporarily stood down".

But, based on the evidence before me for the Restraint Application, I have the concerns explained above.

1. Second, in relation to orders 4 and 6 sought by Ms Gan:

(a) As stated in paragraph 69(a) above, the respondents do not object to the Court making orders 4 and 6.

(b) I disagree with the respondents' contention at RS [9] that there is no evidence to substantiate that the respondents are at risk of engaging in conduct the subject of the proposed restraint. Specifically, order 4 seeks to restrain the respondents from representing to third parties that the applicant has been or will be terminated or stood down for alleged misconduct. On 8 April 2025, there was a meeting of the MAAC. According to the minutes of the meeting at page 46 of the Gan Affidavit, in addition to Dr Mohabbati, five people attended the meeting. At the meeting, there was discussion about "Concerns regarding the performance, patient safety-related decision making and leadership of" Ms Gan, leading to a resolution that Ms Gan be temporarily stood down as Director of Nursing. Based on the limited information before the Court, I infer that Dr Mohabbati initiated and led this discussion, and communicated to the five other people at the meeting his concerns about Ms Gan's work performance recorded in the minutes of the meeting. Further, on 18 April 2025 Dr Mohabbati communicated to all staff that he "has decided to step [Ms Gan] down from her role".

(c) In circumstances where the respondents do not object to the Court making orders 4 and 6 and there is evidence to support the making of at least one of the orders, I will make orders 4 and 6.

1. Third, in relation to order 2 sought by Ms Gan:

(a) The June 2025 Letter states that Dr Mohabbati "will have sole responsibility for the conduct of [the investigation], together with any resulting decision which is to be made". For reasons explained above, based on the evidence before the Court, I have reservations about the ability of Dr Mohabbati to conduct a fair investigation and make an impartial decision. As explained above, if this matter progresses to final hearing, the respondents will file and tender evidence at the final hearing, and the evidence may satisfy me that Dr Mohabbati had a proper basis for his change of attitude to Ms Gan between 17 March and 8 April 2025 and is an impartial decision-maker. But, limited to the evidence before the Court at the hearing of the Restraint Application, I have reservations about Dr Mohabbati's impartiality as explained above.

(b) There is force in the first respondent's submission that a restraining order would unnecessarily constrain the respondents' managerial prerogative. It is explained at RS [20]:

... Preventing the respondents from undertaking their own disciplinary process would unduly interfere with the managerial prerogative of the Respondents, delay the resolution of workplace issues and prejudice the Respondents ability to maintain standards of conduct (outlined in Health Practitioner Regulation National Law 2009 (NSW)) in its business. Further, preventing the Respondents from carrying out their own disciplinary process would obstruct the Applicant's ability to be fully appraised of, heard and respond to the allegations of serious misconduct (should the Respondents form a preliminary view that such conduct that may have occurred), delay the orderly resolution of dealing any allegations that may be raised and undermine the integrity of the Respondents governance of its own workplace. The proper course of action is to permit the Respondents to investigate the allegations, and if appropriate conduct a disciplinary process, ensuring that the Applicant has an opportunity to respond to the allegations of serious misconduct rather than pre-emptively obstructing the process through interlocutory intervention.

This would favour no restraint on the investigation.

(c) Neither party has provided me with a copy of the May 2025 Patient Complaint. As explained in paragraph 29 above, I do not know whether or not the patient made direct allegations against Ms Gan. If the patient made direct allegations against Ms Gan, there would appear to be force in the respondents' desire to investigate the complaint. Alternatively, if the patient did not make a direct allegation against Ms Gan, there may be force in Ms Gan's contention in the ASC at [82]-[85] that the respondents are using the investigation to illegitimately pressure Ms Gan.

(d) Ms Gan claims in the ASC at [57] that "it was not plausible for [Ms Gan] to have committed the alleged misconduct: her contact with the patient on 14 March was minimal (limited to explaining a procedure waiver before the surgery), and she left work early that day". If Ms Gan's claim is correct, an impartial decision-maker would presumably find there was no misconduct by Ms Gan.

(e) Ms Gan, in her submissions at the hearing on 9 September 2025, did not oppose the continuation of the investigation by an impartial external investigator.

1. As the above paragraph indicates, there are competing factors in considering whether the Court should make order 2 as sought by Ms Gan. I have decided to make the following order:

The respondents are restrained from initiating or progressing any disciplinary process in relation to the applicant (including issuing any findings or notice of termination), with the exception that:

(a) the respondent may complete the investigation initiated in a letter from the respondents to the applicant dated 4 June 2025; but

(b) the respondents are restrained from communicating to any third party, including staff, patients or professional contacts (other than persons involved in the investigation), information about the investigation and the results of the investigation.

1. My reasons for making an order in this form are as follows:

(a) I am persuaded by the respondents that I should not make an order which interferes with their managerial prerogative in relation to continuing the investigation commenced on 4 June 2025. If the patient made direct allegations against Ms Gan, there is force in the respondents' desire to investigate the complaint.

(b) The respondents are restrained from taking steps beyond completing the investigation, and from providing information about the investigation to third parties not involved in the investigation. This protects Ms Gan from the risk that the respondents do not conduct the investigation fairly or do not make an impartial decision based on probative evidence.

(c) If the patient made allegations directly against Ms Gan and the respondents conclude at the end of the investigation that there was misconduct by Ms Gan, the respondents can approach the Court to vary the orders I make today - to permit the respondents to take further steps based on their finding of misconduct. If the respondents persuade the Court that the investigation was fairly carried out and the decision was impartially made, the Court may be persuaded to permit the respondents to take further steps. This process will balance the competing interests of the parties.

(d) The publication of this judgment puts the respondents on notice that, if the respondents conclude there was misconduct by Ms Gan which justifies the termination of her employment, in order for the respondents to take further steps against Ms Gan before this proceeding concludes, they must persuade the Court that the investigation was fairly carried out and the decision was impartially made. I consider this provides some protection to Ms Gan.

(e) I have considered Ms Gan's proposal that I make orders that would require any continuing investigation to be carried out by an independent external investigator. I am reluctant to impose this costs burden on the respondents. I consider the order I have decided to make today will adequately protect Ms Gan.

(f) I have considered the undertakings proffered by Mr Plummer at the commencement of the hearing on 9 September 2025: see paragraph 53 above. It appears to me that the practical difference between the undertakings proffered by Mr Plummer and the order I have decided to make is, in the event the respondents conclude at the end of their investigation that Ms Gan engaged in misconduct which justifies her dismissal:

(i) If I was to accept the undertakings proffered by Mr Plummer, Ms Gan must approach the Court for further interlocutory relief.

(ii) The order I have decided to make requires the respondents to approach the Court to vary the restraining orders.

I prefer an outcome which requires the respondents to approach the Court to vary the restraining orders. This provides additional protection to Ms Gan.

(g) The respondents have not led evidence that they wish to commence an investigation beyond the investigation commenced on 4 June 2025. Further, based on the evidence before the Court, there does not appear to be any basis on which the respondents could legitimately want to commence another investigation since, in Dr Mohabbati's opinion on 17 March 2025, Ms Gan had achieved all 22 KPIs and was "entitled to a raise as her [her] contract". So, there is no prejudice to the respondents in restraining the commencement of any other investigation.

1. Fourth, in relation to orders 3 and 1 sought by Ms Gan:

(a) The respondents state at RS [11] that these orders are "pre-emptive in nature" and there is no "imminent risk" of the orders being made.

(b) The respondents explain at RS [21] that the only circumstance in which they would make order 1 is if the respondents, during the investigation initiated on 4 June 2025, "obtain evidence substantiating serious misconduct".

(c) It appears from RS [23] that the only circumstance in which the respondents would make order 3 is after they "investigate allegations of misconduct and serious misconduct": RS [23].

(d) The respondents neither provided evidence, nor suggested in their written submission, that:

(i) they would consider engaging in conduct the subject of the restraints in orders 1 and 3 other than after an investigation in which there is a finding of serious misconduct; or

(ii) they wish to commence an investigation in addition to the investigation commenced on 4 June 2025.

(e) The last undertaking proffered by Mr Plummer at the hearing on 9 September 2025 raised a possibility that at a future time the respondents might want to terminate Ms Gan's employment for some "other reason ... including but not limited to medical incapacity".

1. It follows from the above that there is no prejudice to the respondents if I make orders 3 and 1 sought by Ms Gan, subject to a limitation that the restraint will continue until further order of the Court. That way, if the respondents:

(a) make findings of serious misconduct by Ms Gan following the completion of the investigation commenced on 4 June 2025; or

(b) decide they want to terminate Ms Gan's employment for some "other reason ... including but not limited to medical incapacity",

the respondents can approach the Court to vary the orders I make today. Obviously, the respondents would need to provide satisfactory evidence in support of the application.

1. The matter is listed for directions at 9:15 am on 29 January 2026. On that occasion, if either party seeks an order that the other party pay their costs in relation to the Restraint Application, procedural orders can be made for the consideration and determination of the costs application.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.