When a workplaces’ culture becomes ‘toxic’, or individuals, groups of employees, or management make another employee feel bullied or take action which is adverse to them, employees may seek intervention from the Courts or Commissions. Typically, employees seeking intervention of the Court or Commission wait until they have been terminated, or only do so if they are wishing to see their exit from a business. However, for those who wish to keep their jobs and remain in the workplace, an injunction may be an appropriate remedy.
What is an Injunction
Put simply, an injunction is a court order which prevents certain people from doing certain things, or compels certain people to do certain things. Both the state and federal courts and commissions are empowered to be able to order injunctions against actions which are, or may, breach relevant employee protections. For example, section 545 of the Fair Work Act 2009 (Cth) provides the Federal Court and Federal Circuit Court may make orders including:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
This means that if an employee were to bring an action, and satisfies the Court that an employer or person has, or is proposing to, contravene a civil remedy provision (such as those found under General Protections provisions), then the Court may stop an employer or persons from taking action which would contravene the Act (such as a dismissal).
In order to be granted an injunction, an employee needs to show:
- That there is a serious question to be tried (that is, they need to establish a ‘prima facie’ case); and
- That the balance of convenience favours the granting of an injunction.
A relevant case example is that of Milam v University of Melbourne  FCA 171. Professor Milam was, as her title may suggest, a professor at the University of Melbourne. The university undertook an inquiry into interactions between academic staff, and from the results of such, opted to suspend Professor Milam with pay pending a full investigation, due to alleged risks of harm to other staff.
Professor Milam brought a claim asserting the university had not followed, or breached, the university’s enterprise agreement in conducting the investigation and suspending her. Professor Milam sought an injunction while the proceedings were on foot, to restrain the university from continuing her suspension.
Professor Milam argued there were serious questions to be tried as to whether the inquiry could enlivened disciplinary processes under the enterprise agreement and whether her alleged conduct was ‘serious misconduct’. In respect of convenience, Professor Milam argued it was convenient to award the injunction where the staff members at risk were no longer in ‘at risk’ positions, that there was a risk to her reputation if she were to remain suspended, and she was impeded from conducting her research. The court found in favour of Professor Milam, and she was granted an injunction.
Employers need keep in mind that where an employee feels bullied or adversely treated (whether by investigation, suspension, reductions, or threats), employees may seek injunctive relief. As in the case above, it may make for a situation where the employee is returned to the workplace, and the employer will need to ensure the employee’s health and safety.
Resulting, employers need to consider what risks will arise if they take action that may be viewed as adverse. Prior to taking action against an employee, it is recommended that you seek appropriate advice.
Saines Legal is a full-service employment law firm available to provide tailored advice and guidance in relation to any workplace issues. We have also developed a small business retainer package designed to provide complete employment support at a fixed weekly fee, affording our small business clients complete peace of mind regarding workplace legal obligations and insurance against the costs of any unexpected issues. Do not hesitate to contact us via firstname.lastname@example.org or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal).