Mid-investigation injunction
Workplace investigations are fraught with difficulty and complexity, now compounded by the prospect of injunctions being sought and ordered whilst an investigation is still underway.
The Federal Circuit and Family Court of Australia has made orders restraining an employer from dismissing an employee, but has allowed an investigation into alleged misconduct by the employee to continue. The employee claims the employer has taken unlawful adverse action against her (including by commencing the investigation). The Court considers the employee has a case that should go to a full hearing and that restraint orders are necessary in the meantime.
The applicant, Ms Gan, is the Director of Nursing of the first respondent, Sydney Pain Day Surgery Pty Ltd (SPDS). The second respondent, Dr Mohabbati, is the director of SPDS.
In March 2025, Ms Gan was informed that her performance was satisfactory and she was entitled to a raise. In the same month, an incident occurred with a patient, which Ms Gan was asked to, and did, review.
In early April 2025, Ms Gan complained of underpayment, which was resolved by SPDS, and (separately) took sick leave. In response to the taking of sick leave, Dr Mohabbati said he found it "odd [that Ms Gan was] falling ill the nights before our op days." Ms Gan subsequently obtained a WorkCover certificate of incapacity.
Following the raising of the underpayment issue and the taking of sick leave, Dr Mohabbati's attitude toward Ms Gan changed in a way the Court described as "striking". Whilst she was still on sick leave, the surgery (a) stood Ms Gan down; and (b) revoked her system access.
A little over a month later, in May 2025, the surgery received a formal complaint regarding the March 2025 patient incident. A copy of the complaint was never provided to the Court: it was unclear whether the complaint was against the surgery generally, and/or a staff member (including Ms Gan) specifically.
Nevertheless, on the basis of the May 2025 complaint, the surgery commenced what was described as 'disciplinary proceedings' against Ms Gan, starting with an investigation.
In June 2025, Ms Gan asked the surgery to suspend the investigation until she was fit to return to work. Also in June 2025, Ms Gan filed an application in the Court alleging the surgery and Dr Mohabbati had taken unlawful adverse action against her, including by commencing disciplinary proceedings on the basis of a 'stale complaint', among other things.
In September 2025, the Court held an interlocutory hearing (a hearing before the main hearing of the whole case) to consider whether to grant restraint orders sought by Ms Gan.
Satisfied that Ms Gan had an arguable case, the Court made restraint orders until the main hearing could be held. The Court allowed the investigation to continue, but restrained the employer from taking certain adverse action against Ms Gan, including terminating her employment, until further order.
Whether the investigation and/or other action taken by the employer will be found to constitute unlawful adverse action remains an open question.
What can employers take away from this decision?
Ensure you act promptly to investigate complaints. If you delay, you are exposed to an argument that the complaint is ‘stale’ as occurred in this case. Such a claim may expose you to risk of an injunction if the stale nature of a complaint suggests possible unlawful motive, giving rise to a need for a substantive hearing.
Be mindful of communications sent to and by staff. Describing sick leave supported by medical evidence as ‘odd’ presents considerable general protections risk.
Gan v Sydney Pain Day Surgery Pty Ltd [2025] FedCFamC2G 2141