100 The circumstances of each particular case need to be examined. There ought not be be and there is no longer a fixed rule against specific performance of an employment contract: Turner at 193; Gregory at 482; Downe at [450]; Paras at [38]-[46] and the many cases cited therein including Hill v CA Parsons & Co [1972] 1 Ch 305; Reilly v State of Victoria (1991) 5 VIR 1; Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590; Dietman v Brent London Borough Council [1987] ICR 737; Crisp v Holden (1910) 54 SJ 784; Smith v Mcnally [1912] 1 Ch 816; Jones v Lee [1980] ICR 310; R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 and Baker v Corporation of City of Salisbury (1982) 2 IR 168.
101 Furthermore, the appropriateness of specific performance as a remedy is strengthened by a growing acceptance at common law of the right of an employee to perform work. That recognition has arisen out of changed social attitudes. There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.
102 As Callinan and Heydon JJ said in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [80]:
It may be that in modern times, a desire for what has been called "job satisfaction", and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.
103 In William Hill Organisation Ltd v Tucker [1999] ICR 291 at 298-299 Morritt LJ (with whom Robert Walker LJ and Stuart Smith LJ concurred) said:
But as social conditions have changed the courts have increasingly recognised
the importance to the employee of the work, not just the pay. Thus ... Lord
Denning MR considered that it was open to a welder to argue that: 'a man has, by
reason of an implication in the contract, a right to work. That is, he has a right to
have the opportunity of doing his work when it is there to be done.' (Citations
omitted).
See further the discussion in Downe at [410]-[431] where the right to work was considered in the context of a suspension. The denial of the work that an employee has been contracted to perform was recognised to have an adverse effect on the employee's enjoyment of his or her employment in Foster at [46]-[47].
104 It has been said that special or exceptional circumstances need to be shown to justify an order for specific performance of an employment contract: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 per Brennan, Dawson and Toohey JJ. However, as is demonstrated in the cases where specific performance has been granted, the burden of that requirement ought not be considered particularly onerous. As the Full Court said in Turner at 193 "cases where continuing obligations and rights are in question might give rise to such special circumstances".
105 I will approach the exercise of my discretion with these considerations in mind.
106 In support of her claim that the balance of convenience lies with returning the applicant to employment until the determination of the proceeding, Ms Quinn relied on a number of factors.
107 Ms Quinn is an expert in the field of drug and alcohol forensics and is well known in this relatively small field. She practices in a small forensic science community and it is likely that the fact of her suspension has become widely known. She asserts that the damage being caused to her reputation by her suspension is extreme.
108 I accept that Ms Quinn's suspension from her employment is likely to have had a substantial impact on her reputation and that it may impose a stigma that adversely affects her future career prospects: Paras at [29] and [48]; Jones v Queensland Tertiary Admission Centre Ltd [2009] FCA 1382 at [27] and Foster at [46]-[47] and [54]. Much of the loss of reputation has probably been caused by the first suspension but nevertheless, I accept that the new suspension is likely to continue to harm Ms Quinn's reputation and her future career prospects.
109 As a highly skilled professional, Ms Quinn complains that her continued suspension prevents her from exercising her skills. Apart from the skill enhancement involved in her ordinary daily activity, Ms Quinn is a member of a number of national advisory and working groups in her discipline and her suspension prevents her from participating in conferences, working groups and other fora. She says further that her suspension means that a variety of important information disseminated through extensive informal peer to peer networks such as email bulletins is denied to her. Additionally, she is unable to access any continuing professional development and training provided at work. I do not take into account her complaint that she has been unable to access specialist publications not available to the public, as the respondents have now offered to provide her access to such publications.
110 I accept that the continued suspension of Ms Quinn will have a detrimental affect on her ability to develop and maintain her expertise in the use of analytical forensic skills. I also accept that her capacity to maintain her status as an expert is a matter of importance to her and that for that purpose she needs to maintain regular contact with the forensic science community. Whilst the second respondent offered to provide Ms Quinn with a fortnightly briefing in relation to forensic matters occurring in the Drug and Alcohol Branch and the forensic industry and also retraining in any new developments (if she should resume work after the allegations against her are dealt with), it remains likely that the continued suspension will nevertheless cause harm to Ms Quinn's maintenance of her skills and in particular, her capacity to maintain her expertise through direct contact with other experts in her field.
111 I accept that Ms Quinn's suspension has deprived her of the enjoyment and job satisfaction provided by the performance of her work. I also accept that it is likely that the suspension has affected Ms Quinn's health and wellbeing by reason of the embarrassment and stress caused as a result of the suspension. Ms Quinn deposed that she has great difficulty sleeping, has gained weight and suffered hair loss. Her doctor has conducted a number of tests and detected a thyroid problem. An endocrinologist to whom she was referred has informed her that her symptoms may be stress related. Whilst much of that harm is likely to have been caused by the first suspension, the further suspension is likely to continue these adverse affects. That is particularly so if, for reasons which I will deal with shortly, the new suspension is unlikely to be of short duration.
112 Ms Quinn also contended and I accept, that while suspended she is deprived of the opportunity to earn any overtime and on call allowances which in a year would amount to approximately $3,000.
113 Other than for the loss of overtime and on call allowances, the harm to which I have referred is not harm for which damages would be an adequate remedy.
114 The respondents rely on a number of considerations which they contend support the denial of an injunction on balance of convenience grounds. Those grounds are supported by evidence given by Mr Graham Ashton, the current Director of the Forensic Services Centre. Many of those grounds, reflect the considerations taken into account by Ms Munn when making the new suspension decision.
115 I give no weight to the contention that Ms Quinn's continued suspension is necessary in order to provide her with sufficient time to respond to the Substituted Allegations. Ms Quinn was not consulted on that matter prior to being suspended and she rejects that her circumstances would be improved on the basis contended for by the respondents.
116 I do give weight to the need to ensure the integrity and efficacy of the investigation. In that regard, the respondents say, and I accept, that Ms Quinn's resumption of work will put her into direct contact with Senior Sergeant Ritchie and Senior Constable Kavanagh of FEMU and occasional contact with Ms Leonie Hamstra. Each of these individuals has been identified by Ms Bourke as persons whose evidence is relied upon in support of the allegations made against Ms Quinn.
117 There is some controversy as to the extent with which Ms Quinn may need to liaise with these persons. Nevertheless Ms Quinn deposed that she was willing to refrain from discussing the subject matter of the investigation with Senior Sergeant Ritchie, Senior Constable Kavanagh and Ms Hamstra. Further she has indicated a willingness to give an undertaking to the Court to the effect.
118 It is not uncommon that workplace investigations generate the potential for conflict between employees who are required to continue to work with each other. In those circumstances directions can be given and processes established to protect the integrity and efficacy of any current investigation. All of the persons relevantly concerned in this case are professionals working for the Victoria Police and might be expected to have a very good understanding of the need to maintain the integrity and efficacy of the investigation. Further, Ms Quinn has proffered an undertaking designed to protect the integrity of the investigation. In those circumstances, the concern expressed by the respondents appears to me to be overstated.
119 What appears to be the major concern of Mr Ashton and also Ms Munn is the ability of the Forensic Services Centre to effectively perform its functions if Ms Quinn resumes the performance of her work. That concern is put in two ways. Firstly, the capacity of Ms Quinn to properly perform her work including her capacity to interact with other staff and in particular the staff at FEMU. Secondly, there is an expressed concern about the need to maintain public confidence in the integrity of Victoria Police and the Forensic Services Centre, including by reason of the Centre's involvement in the criminal justice system.
120 The nature and seriousness of the allegations made against Ms Quinn is obviously a matter relevant to these concerns. Whilst there can be no doubt that the allegations are serious, none of the allegations involve allegations of corruption, dishonesty, or wilful disobedience. Nor do any of the allegations seek to impugn Ms Quinn's competence as a forensic scientist. As I have said, all of the allegations involve alleged difficulties between Ms Quinn and other staff in the Drug and Alcohol Branch and staff in FEMU. Those difficulties essentially concern procedures and processes relating to the storage and destruction of drugs and other exhibits and auditing and reanalysis procedures to ensure that illicit substances entrusted to the Centre do not go missing and are accounted for.
121 As I have said, whilst the allegations appear to be serious, the force of the respondents' contention that they are serious is somewhat diminished by the fact that the allegations are old, at least some are apparently well known and not the subject of earlier complaints, prior counselling or discipline of Ms Quinn by her supervisors. Additionally, there is no evidence before me of any wrongdoing, or even any allegations of wrongdoing, by Ms Quinn since mid 2007. There is therefore a period of some 18 months of Ms Quinn having performed her work prior to the first suspension, without apparent difficulties, including in relation to her capacity to interact with staff at the FEMU.
122 Furthermore, the Ombudsman's report suggest that the tensions between the Drug and Alcohol Branch and FEMU were in large part the result of the deficiencies of senior management of the Centre. Since the Ombudsman's Report was presented, Mr Ashton has replaced Mr Ross as the Director of the Centre and the person to whom Ms Quinn directly reported has also been replaced with a new Assistant Director of the Chemistry Division. Additionally, Mr Ashton has deposed that he is implementing recommendation 47 made by the Ombudsman and referred to at [13] above. In that respect he has implemented more stringent governance constraints around general conduct of staff of the Centre and greater clarity around the rules under which they operate and the authority and responsibility of management of the Drug and Alcohol Branch in conjunction with other units within the Centre.
123 Whilst Mr Ashton expresses some concern about Ms Quinn returning whilst that review continues, Ms Quinn has deposed to her readiness and willingness to participate in any review and her readiness and willingness to abide by the new processes and procedures which Mr Ashton has implemented. She has specifically deposed to her readiness and willingness to interact with FEMU in accordance with the procedures of the Centre and to deal with any issues on her return to work.
124 In those circumstances, whilst it is unlikely that mutual affection and friendship will blossom in the relations between Ms Quinn and staff at FEMU, I am satisfied that it is likely that there will be a sufficient level of supervision and cooperation between Ms Quinn and those at FEMU with whom she needs to interact, so that difficulties of the kind apprehended by the respondents will be avoided.
125 Mr Ashton asserted that because Ms Quinn is still under investigation, the management by her of her functions (should she return to work) would be open to questions of credibility, and would thus potentially impact on the policing and prosecuting of drug related criminal offences in Victoria. Neither Mr Ashton nor counsel for the respondents could point me to a proper foundation supporting the assertion made by Mr Ashton. In particular, no connection was identified between the conduct which is alleged against Ms Quinn and any of the functions of the Centre which have a direct relation with the policing and prosecuting of drug-related criminal offences. The processes and procedures the subject of the allegations against Ms Quinn all appear to be processes which concern the storage, handling, accounting for and destruction of drugs and other exhibits, subsequent to their use in the criminal justice system.
126 Whilst I agree that it is necessary to maintain public confidence in the integrity of Victoria Police and the Forensic Services Centre, I very much doubt that in the knowledge of this case (as explained by these reasons for judgment), public confidence in the Victoria Police and the Centre will, to any significant degree, be shaken by Ms Quinn resuming her work.
127 I have also given consideration to the length of time that Ms Quinn may remain suspended pending the completion of the investigation. Given what has occurred to date and given that there are already fresh issues which have arisen in relation to the validity of Ms Bourke's investigation, I am not confident that the investigation will be concluded quickly. One of the issues that Ms Quinn has raised in relation to Ms Bourke's investigation is the validity of Ms Bourke conducting the investigation in circumstances where she has been involved in identifying and formulating the allegations made against Ms Quinn. It may be the case, if Ms Quinn's contention is correct, that a new investigator will need to be appointed. This is not a matter for me to pass judgment on at this juncture, but it is a matter which tends against the conclusion that the investigation of the allegations made is likely to be concluded quickly. If I had been persuaded that any further suspension would be of short duration, I may not have granted the relief sought by Ms Quinn. In the circumstances, I consider it more likely than not that the harm occasioned by Ms Quinn's further suspension is likely to continue for a significant period.
128 The balance of convenience favours the grant of interim relief. Success at final trial, and an award of damages, is not likely to provide an adequate remedy to Ms Quinn by reason of the significant non-pecuniary harm that she is likely to be subjected to. On the other hand, I do not consider that significant hardship will be inflicted on the respondents should an injunction be granted. The expressed concerns of the respondents are, I believe, likely to prove to be overstated. It is likely that workable arrangements can be put in place both to ensure the integrity of the investigation and provide workable arrangements in which Ms Quinn can perform her work without adverse implications for the proper operations of the Forensic Services Centre.
129 Taking into account all of the matters I have referred to, I do not consider that in the exercise of my discretion I should decline to grant relief because the order sought is in the nature of specific performance of an employment contract. If it be necessary, I am satisfied that Ms Quinn has established special circumstances sufficient to warrant the exercise of my discretion to grant relief. This is a case where there are continuing obligations and rights in question, including because of the statutory processes and requirements in the PA Act: Paras at [40].