Avard v Australian Capital Territory [2024] FCA 690

Federal Court of Australia

Avard v Australian Capital Territory [2024] FCA 690 File number: ACD 29 of 2022

Judgment of: KENNETT J

Date of judgment: 28 June 2024

Catchwords: INDUSTRIAL LAW – where applicant specialist in intensive care medicine – where applicant submitted reports of risks and injury using internal reporting system – where applicant directed to attend independent medical examination – where employer proposed that applicant would be suspended from duty with pay – where employee investigated for alleged clinical misconduct, improper workplace conduct and improper use of reporting system – where internal email regarding applicant's absence sent to staff – where employee transferred to alternative medical position pending outcome of investigation – whether investigations, transfer, internal email and proposed suspensions were adverse action within the meaning of the Fair Work Act 2009 (Cth) (FW Act) – whether actions were taken because of the exercise of a workplace right INDUSTRIAL LAW – proper approach where multiple people said to be involved in decision to take adverse action INDUSTRIAL LAW – whether action permitted by an enterprise agreement "authorised by or under" a "law of the Commonwealth" for the purposes of s 342(3)(a) of the FW Act INDUSTRIAL LAW – interpretation of enterprise agreement – where employer purported to follow preliminary assessment process to determine whether to commence formal investigation – where enterprise agreement provided that principles of procedural fairness applied – whether employer required to hear applicant on whether formal investigation should be commenced – whether failure to so hear applicant contravened s 50 of the FW Act