Gunashingha v Department of Families, Fairness and Housing [2025] FedCFamC2G 1904

1. The amended application in a proceeding filed on 6 November 2025 be dismissed; and
2. Liberty to apply.

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. These are the reasons for judgment delivered ex tempore on 10 November 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor maters to reflect the intention of the Court.
2. By an application in a proceeding filed on 22 October 2025, the applicant sought interlocutory injunctions against the respondent until the final hearing of this proceeding or further order. The orders sought in the initial application in a proceeding were as follows:

1. That until further order, the respondent be restrained, by injunction, from standing the applicant down without pay.

2. That the respondent take into account each of the five recommendations made by the applicant's psychologist, as set out in the reports of Dr Rasheeda Gomez dated 16 September 2025, in formulating its return to work plan for the applicant.

3. Such further or other orders as this honourable Court deems fit to make.

1. The application for injunctive relief was supported by an affidavit affirmed by the applicant on 22 October 2025. That affidavit is 181 pages in length including annexures. In that affidavit, the applicant set out a chronological background to the applicant's claims in this proceeding and the perceived need for injunctive relief.
2. The application was listed for hearing before this Court on Tuesday, 28 October 2025. Ms Jardine of counsel appeared for the applicant on that occasion. Mr Holding of counsel appeared for the respondent. Both parties filed an outline of written submissions prior to that first hearing.
3. As the respondent had been served with the application and affidavit on Monday, 27 October 2025, the respondent sought further time to respond to the extensive affidavit material provided by the applicant. The applicant's affidavit affirmed 22 October 2025 also revealed that a meeting was scheduled to occur on 29 October 2025 between the parties, to discuss a possible return to work strategy. The hearing of the application was adjourned to 30 October 2025 at 4.00pm to allow the meeting to take place, and for the respondent to prepare affidavits in response to the applicant's evidence.
4. At the resumed hearing on 30 October 2025, the respondent sought to rely on two affidavits in response to the applicant's evidence. The first of those affidavits was affirmed by Mr Patrick Steele on 30 October 2025, which was 232 pages in length including annexures. The second affidavit was sworn by Mr Peter Clarke on 30 October 2025, which is more modest and only ten pages in length. Both of those affidavits refer to some of the chronological history between the applicant and respondent over recent weeks and months.
5. At the hearing on 30 October 2025, the applicant was again represented by Ms Jardine of counsel who sought to proceed with the application for injunctive relief. Mr Holding also appeared for the respondent and opposed the application for the relief sought.
6. When addressing the issue of balance of convenience, Ms Jardine submitted that unless the applicant's pay was reinstated by the respondent, the applicant would suffer irreparable financial harm because the applicant was in dire financial circumstances. This was a submission that was not supported by the evidence in the applicant's affidavit sworn 22 October 2025. Ms Jardine sought an adjournment to supplement the applicant's evidence on the issue of the balance of convenience, and the adequacy of damages as an appropriate remedy. The Court also queried the form of the orders sought, and whether mandatory injunctions of the kind sought were in the interest of justice and necessary to preserve the status quo.
7. The further adjournment was opposed by the respondent. Mr Holding submitted that the relief sought in the application in the proceeding was misconceived and not supported by satisfactory evidence. The applicant elected to seek urgent interlocutory injunctive relief when a dispute was currently before the Fair Work Commission under s 739 of the Fair Work Act 2009 (Cth) (Fair Work Act) and had not been resolved by the Fair Work Commission or the parties. It was submitted that the applicant could, if she elected to do so, take paid leave, in lieu of the paid special leave provided to her, and avoid any inconvenience caused by the discontinuance of her paid special leave arrangements.
8. It was also submitted that the respondent was entitled to rely on the evidence of the applicant's own psychologist, that the applicant was fit to resume work and was also actively seeking to take reasonable steps to ensure a structured return that was psychologically safe to the applicant. Ms Jardine joined issue with these propositions and submitted that the respondent was duty-bound, under the Occupational Health and Safety Act 2004 (Vic), to ensure that the applicant's workplace was safe and psychologically safe.
9. The hearing of the application in the proceeding filed 22 October 2025 was adjourned for further hearing at 2.15pm 10 November 2025. The applicant, on that occasion, was self-represented. The respondent was once again represented by Mr Holding of counsel.
10. In the interim, the applicant had filed a further affidavit affirmed 6 November 2025 and an amended application in a proceeding of the same date. The affidavit comprised 112 pages and contained further assertions and some evidence of the applicant's financial circumstances. Included in the annexures were a redacted bank statement showing a closing balance of a debit account of $443.70 as at 8 October 2025.
11. In the amended application the applicant sought the following orders:

1. An interlocutory injunction restraining the Respondent, whether by itself, its servants, agents or officers, from:

(a) standing down the Applicant without pay;

(b) terminating the Applicant's employment;

(c) taking any disciplinary or coercive action against the Applicant, or

(d) otherwise ceasing or withholding the Applicant's salary,

effective from 24 October 2025, pending the final determination of the Applicant's return-to-work process currently before the Fair Work Commission.

2. An order that the Respondent reinstate the Applicant's salary from 24 October 2025 and continue to pay her ordinary wages until the Fair Work Commission determines the RTW under the VPS Agreement.

3. A direction that the Respondent engage in the RTW process through the Fair Work Commission, consistent with clause 56.12.

4. Such further or other orders as the Court deems fit.

1. On 10 November 2025, the applicant filed a further outline of written submissions in response to the respondent's written submissions filed 28 October 2025. These submissions included submissions on the revised injunctions sought in the amended application. From the statement of claim filed in this proceeding, the affidavits of the applicant affirmed on 22 October 2025 and on 6 November 2025, together with the affidavits of Mr Clarke and Mr Steele relied on by the respondents, the following background facts and circumstances can be ascertained.
2. The applicant commenced employment with the respondent in about 2015. In July 2021, the applicant was appointed to the role of Multiple and Complex Needs Initiative Coordinator and High-Risk Tenancies Coordinator of the respondent, in the Barwon area, Victoria. The terms and conditions of the applicant's employment are governed by the Victorian Public Service Enterprise Agreement 2024 as amended from time to time. The applicant's annual salary was $123,206 per annum plus 12% superannuation, which was subsequently increased to 12.5% under the statutory amendments in June of last year. The applicant is currently classified as a VPS level 5.1 employee of the respondent and the Victorian Public Service (VPS).
3. On 8 March 2024, the applicant was involved in a family violence incident involving her former partner and one of her children. The nature of that incident is partially described in the affidavit of 22 October 2025, but the incident resulted in a chain of events that had quite complex consequences and resulted in subsequent litigation. On 11 March 2024, the applicant informed her direct supervisor of the incident. At the time of the incident, the applicant was not at work or performing any work-related duties.
4. The applicant claims that in breach of her right of privacy and without her permission, news of the incident was communicated to the Executive Director of the Barwon area of the respondent. This resulted in a meeting that then resulted in the applicant being stood down, with pay, from her duties immediately. Correspondence then followed, including from a solicitor retained to act on behalf of the applicant, and allegations of adverse action in breach of the Fair Work Act and conflict of interest were made and refuted.
5. On 18 December 2025, the applicant filed various formal written complaints about her treatment to the Deputy Secretary of the Western District of the respondent, and to the Victorian Information Commissioner.
6. On 5 March 2025, the respondent directed the applicant to attend an independent medical examination. The applicant refused to do so. Further correspondence followed, and the applicant remained stood down but on full pay.
7. In April 2025, the applicant sought formal dispute resolution under cl 13 of the Victorian Public Service Enterprise Agreement 2024:

13. Resolution of Disputes

13.1 For the purposes of this clause 13, a dispute includes a grievance.

13.2 Unless otherwise provided for in this Agreement, a dispute about a matter arising under this Agreement or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause. To avoid doubt, a dispute about termination of employment cannot be dealt with under this clause.

13.3 This clause does not apply to any dispute regarding a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement.

13.4 The Union may raise a dispute and be a party to a dispute in its own right or in a representative capacity for an Employee or group of Employees.

13.5 A person covered by this Agreement may choose to be represented at any stage by a representative, including a Union representative or Employer's organisation.

13.06 Obligations

(a) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(b) While a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to their health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

(c) No person covered by this Agreement will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.

13.07 Agreement and Dispute Settlement Facilitation

(a) For the purposes of compliance with this Agreement (including compliance with this dispute settlement procedure) if the chosen Employee representative is another Employee of the Employer, they must be released by the Employer from normal duties for such periods of time as may be reasonably necessary to enable them to represent Employees concerning matters pertaining to the employment relationship including but not limited to:

(i) investigating the circumstances of a dispute or an alleged breach of this Agreement; or

(ii) endeavouring to resolve a dispute arising out of the operation of this Agreement; or

(iii) participating in conciliation, arbitration or any other agreed alternative dispute resolution process.

(b) The release from normal duties referred to in this clause is subject to the proviso that it does not unduly affect the operations of the Employer.

13.08 Discussion of Dispute

(a) The dispute must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).

(b) If the dispute is not settled, the aggrieved Employee(s) can require that the dispute be discussed with another representative of the Employer appointed for the purposes of this procedure.

13.9 Internal Process

(a) If any party to the dispute who is covered by this Agreement refers the dispute to an established internal dispute resolution process, the matter must first be dealt with according to that process, provided that the process is conducted as expeditiously as possible and:

(i) is consistent with the rules of natural justice; and

(ii) provides for mediation or conciliation of the dispute; and

(iii) provides that the Employer will take into consideration any views on who should conduct the review; and

(iv) is conducted with as little formality as a proper consideration of the dispute allows.

(b) If the dispute is not settled through an internal dispute resolution process, the matter can be dealt with in accordance with the processes set out below.

(c) If the matter is not settled either party to the dispute may apply to the FWC to have the dispute dealt with by conciliation.

13.10 Disputes of a Collective Character

(a) The Parties acknowledge that disputes of a collective character concerning more than one Employee may be dealt with more expeditiously by an early reference to the FWC.

(b) No dispute of a collective character may be referred to the FWC directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to the FWC.

13.11 Conciliation

(a) Where a dispute is referred for conciliation, a member of the FWC will do everything that appears to the member to be right and proper to assist the parties to the dispute to agree on settlement terms.

(b) This may include arranging:

(i) conferences of the parties to the dispute presided over by the member; and

(ii) for the parties to the dispute to confer among themselves at conferences at which the member is not present.

(c) Conciliation before the FWC will be regarded as completed when:

(i) the parties to the dispute have reached agreement on the settlement of the dispute; or

(ii) the member of the FWC conducting the conciliation has, either of their own motion or after an application by a party to the dispute, satisfied themselves that there is no likelihood that, within a reasonable period, further conciliation will result in a settlement; or

(iii) the parties to the dispute have informed the FWC member that there is no likelihood of agreement on the settlement of the dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.

13.12 Arbitration

(a) If the dispute has not been settled when conciliation has been completed, a party to the dispute may request that the FWC proceed to determine the dispute by arbitration.

(b) If a member of the FWC has exercised conciliation powers in relation to the dispute, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the dispute objects to the member doing so.

(c) Subject to clause 13.12(d), the determination of the FWC is binding on the persons covered by this Agreement.

(d) A determination of a single member of the FWC made pursuant to this clause may, with the permission of a Full Bench of the FWC, be appealed.

13.13 General Powers and Procedures of the FWC

Subject to any agreement between the parties in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the FW Act.

1. On 7 June 2025, the applicant commenced a dispute within the Fair Work Commission regarding a requirement and direction that she attend an independent medical examination directed by the respondent.
2. On 16 September 2025, a psychologist's report prepared by Dr Rasheeda Perez Gomez was submitted to the respondent. In that report, Dr Gomez concluded that the applicant could safely resume her substantive duties. The conclusions reached by Dr Gomez were as follows:

(a) The applicant was fit to perform the inherent requirements of her position, provided that the return-to-work process was structured, trauma-informed and clinically supported.

(b) An unmodified or premature return to the Barwon office presented a foreseeable risk of re-traumatisation and psychological harm, given her prior experiences and the Department's historical handling of her case.

(c) A safe and sustainable return required implementation of five key recommendations, namely:

(i) A written phased return beginning with remote or neutral duties.

(ii) Independent or neutral supervision with scheduled clinical check-ins.

(iii) Confidential management of all legal and sensitive employment matters.

(iv) Transparent communication to restore professional standing.

(v) Redeployment planning should the Barwon environment provide unsafe.

1. On 19 September 2025, the respondent agreed it would accept the reports of the treating psychologist, Dr Gomez, and not pursue the requirement of an independent medical examination. The respondent informed the applicant that the applicant was no longer suspended and could return to work.
2. On 19 September 2025, the applicant raised a further dispute before the Fair Work Commission, under cl 13 of the Victorian Public Service Enterprise Agreement 2024 and a dispute under cl 57 of the same Enterprise Agreement. There was further correspondence between the parties regarding the negotiation of a return-to-work plan, and meetings were scheduled. The applicant claims that some of the letters were threatening and made unreasonable demands of her and for her return to work. The culmination of this correspondence and discussions is a letter dated 21 October 2025 from Mr Steele of the respondent, stating that the applicant's paid special leave would cease, effective at midnight on 24 October 2025.

1. The applicant filed the application in the proceeding dated 22 October 2025, supported by an affidavit of the same date.
2. An originating application in Form 4 was first filed with this Court on 3 July 2025. In that application, the applicant sought declarations and compensation. The applicant claimed that as a consequence of the respondent's conduct to allow the applicant to re-educate herself in another career, the applicant seeks compensation equivalent to two years' salary plus superannuation, being a sum of $275,982.65. The following relief was also sought:

(a) A declaration that the respondent has breached each of the sections 50, 340, 351 and 352 of the Fair Work Act.

(b) A declaration that the respondent has breached its obligations of trust and confidence to the applicant.

(c) Damages.

(d) Interest.

(e) Penalties as against the respondent, for its breaches of sections 50, 341, 351 and 352 of the Fair Work Act. Such penalties payable to the applicant.

(f) Costs in relation to the applicant's breach of its obligation of trust and confidence to the applicant, and

(g) Such other orders the Court deems fit to make.

1. On 16 September 2025, Registrar Wilson made orders directing the applicant to file and serve a statement of claim by 4.00pm on 21 October 2025. The applicant did so and by 4.00pm on 25 November 2025 the respondent is to file and serve a defence. The proceeding has been listed for further directions to be heard by the Court on 9 December 2025.
2. In the statement of claim, there are various allegations of breach of the Fair Work Act, culminating in a claim for damages and the payment of penalty. It is with this background in mind that I consider whether the applicant is entitled to, and whether as a matter of discretion, the Court should order injunctive relief. The principles upon which injunctive relief may be granted have been summarised in two cases cited by the respondent: Dixon v United Workers Union [2023] FCA 1526 at [26] and Blue Rock Australia Pty Ltd v Kaushik [2025] FCA 176 also at [26]. Both are decisions of Snaden J in the Federal Court of Australia. The principles are well known and well settled.
3. In order to qualify for the relief that the applicant seeks, the applicant must satisfy the Court that there is a prima facie case, and the balance of convenience favours the grant of an injunction. These were the principles stated by the High Court in Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at 81-4. When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case or a serious question to be tried, and whether the balance of convenience favours injunctive relief, are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience.
4. In Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 258, Woodward J with whom Smithers and Sweeney JJ agreed, stated at 472:

An apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim which nevertheless raises a serious question to be tried may still attract interlocutory relief if there is a marked balance of convenience in favour of it. An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy.

These principles are also set out in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 per Mason ACJ.

1. I turn now to whether or not there is a serious question to be tried or a prima facie case. I am satisfied that there are at least arguable breaches of the Fair Work Act and possible adverse action upon which relief may be founded and granted to the applicant in the proposed proceeding. There may also be alternative breaches of the terms of the Victorian Public Service Enterprise Agreement 2024 which could amount to adverse action.
2. The facts and circumstances of this case are complex, and there is some merit in the respondent's submission that no adverse action has in fact been threatened or is probable at this point in time. However, there is also, in my view, sufficient factual complexity in the history and dealings between the parties to give rise to a serious question as to whether the applicant's workplace rights have been compromised, or adverse action taken in standing the applicant down both with pay and then without pay. I am also satisfied that there may be other potential claims that have not been explored as yet by the applicant, which would give rise to injunctive or other relief. It is not necessary for me to consider those possible causes of action at this time as I am not satisfied that the balance of convenience weighs in favour of the applicant, in favour of the injunctive relief now sort.
3. It is my view that in this case, damages are an appropriate remedy for any breach of the Fair Work Act or any other cause of action, given the nature of the claims made in both the statement of claim and in the affidavits filed on behalf of the applicant in support of the application for an injunction, and in support of the application at large.
4. The applicant's employment has not yet been terminated and the offer for her to return to work remains open. Now, the applicant is not proposing to return to work because she considers that the terms upon which the respondent has offered to reinstate her to her former position are inadequate, and do not provide her with a safe place and psychologically safe place to work. If, in the event that that offer is found to be unacceptable and a breach of the Fair Work Act or the Enterprise Agreement, it seems that damages in the nature of unpaid wages or other compensation is an appropriate remedy, and the injunctive relief sought is too broad and unenforceable as to preserve the status quo in a way which serves the interests of justice. The applicant has, in her affidavit affirmed on 6 November 2025, identified hardship and difficult financial circumstances, as a result of the family violence incident that occurred in March 2024.
5. The Court has considerable sympathy for her predicament, but this is not a case where the Court should exercise its discretion to ensure that an employer is bound to pay wages or salary, to an employee when no work is offered on behalf of the employee to reciprocate the payment of the wages in question. The respondent also points to the available annual leave that is accrued and for which the respondent is entitled. If this leave is taken it would alleviate the need for immediate payment of salary under the special arrangements that have been in place since December of 2024. The respondent has also offered to pay a lump sum to the applicant for her accrued leave entitlements to relieve her from her immediate financial difficulties.
6. The other difficulty which I see with the relief sought by the applicant is that it is unclear when the Fair Work Commission will conclude its investigation and resolution of the dispute currently before it. The relief sought by the applicant in the amended application is at large until the final determination of the applicant's return-to-work process. Neither the applicant nor the respondent could indicate to me, or provide evidence, as to when the process may finish or how long that dispute may continue. At this moment, the respondent disputes the jurisdiction of the Fair Work Commission to hear and decide the dispute by arbitration, and the applicant contends that the Fair Work Commission has full jurisdiction in which to consider and resolve that dispute.
7. I am also conscious of the current offer of return-to-work which is contained in the exhibit which is 'MK-7' to the affidavit of Meredith Kennedy affirmed on 10 November 2025, in which the respondent sets out the terms upon which they propose that the applicant return to work. That offer has, I am told, been rejected at this point in time and does contain a structured plan of return to work which is largely in compliance with the recommendations of Ms Gomez in her report of 19 September 2025 and her subsequent report annexed to the affidavit of the applicant of 6 November 2025.
8. In all of the circumstances of this case, I do not believe it is appropriate to exercise the discretion to grant injunctions of the type sought by the applicant in the amended application, and that those injunctions are necessary to preserve the status quo. In the circumstances of this case, damages are an appropriate remedy, and the balance of convenience does not favour the granting the relief sought by the applicant in the current application.

1. The amended application in a proceeding filed 6 November 2025 be dismissed.
2. Liberty to apply.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.