A dose of fairness: court steps in to protect nurses’ reputation

In the high-stakes environment of healthcare, a professional reputation is everything. For employees facing disciplinary action, the damage can start long before a final decision is made.  

A recent decision in the Federal Circuit and Family Court of Australia (Court), Gan v Sydney Pain Day Surgery Pty Ltd, has brought this issue into sharp focus. The Court took the significant step of intervening early to protect a senior nurse from disciplinary action, termination of her employment, and reputational harm while her legal claims were being heard. This case serves as a powerful reminder that courts are willing to step in if an employer’s actions threaten to cause irreparable damage to an employee’s reputation.  

This article explores how the Court balanced the employer’s right to manage staff against the employee’s need for protection and sets a crucial precedent for how workplace disciplinary processes should be handled when serious legal claims are on the table. 

What happened?  

Ms Vivien Gan was hired in September 2024 as Operations Manager and Director of Nursing at Sydney Pain Day Surgery Pty Ltd. In March 2025, she received a salary increase and positive feedback. Days later, she was issued a formal performance review, alleging serious KPI failures and contractual breaches. This was an abrupt and unexplained shift in the employer’s stance and wasn’t explained during the court proceeding. 

Over the following weeks, Ms Gan raised concerns about her treatment, sought union support, disputed pay discrepancies, and made a workers’ compensation claim for psychological injury. When she provided medical certificates stating she was unfit for work due to the way the employer had treated her, the employer stood her down and looked for someone else to fill her role, even though she’d previously been told she would have an opportunity to respond to the allegations.  

In June 2025, while Ms Gan was on medical leave, the employer issued a letter commencing a disciplinary process against her. The letter alleged serious misconduct relating to a patient incident in March 2025 and indicated that summary dismissal was possible if the claims were substantiated. Ms Gan disputed these allegations. 

Ms Gan responded by initiating legal proceedings. She alleged multiple breaches of her general protections provisions arising under the Fair Work Act 2009 (Cth), including adverse action taken because she exercised workplace rights, coercion, unlawful discrimination, and misleading representations. She sought urgent court orders to prevent her employer from terminating her employment, taking further disciplinary action, replacing her in her position, and making disclosures about her alleged misconduct or health status. 

What did the Court find?  

Judge Zipser granted most of the relief sought by Ms Gan, including:  

• The employer was prohibited from communicating to any third party – including staff, patients, or professional contacts – that Ms Gan had been or would be terminated or stood down for alleged misconduct.  

• The employer was prevented from disclosing her confidential health or personal information, including details about her workers’ compensation claim, unless required by law or with her consent. 

• The employer was restrained from initiating or progressing any new disciplinary process. However, the employer was allowed to complete the investigation referred to in its June 2025 letter. Importantly, the employer couldn’t communicate the investigation or its outcome to any person not involved in the process.

• The employer was prevented from permanently removing or replacing Ms Gan in her substantive position, and from terminating or claiming to terminate her employment, until further court order. 

In reaching this conclusion, the Court determined that simply awarding compensation wouldn’t have made up for the harm Ms Gan could suffer if she were disciplined or her employment terminated. Being accused of serious misconduct could cause lasting damage to her reputation and make it harder for her to find work in the future. Because this kind of harm can’t easily be remedied by compensation, the Court decided extra protection was needed while the case continued. This determination was consistent with the precedent set in cases Jones v Queensland Tertiary Admissions Centre Ltd and Quinn v Overland. 

The Court took a careful approach to balancing the interests of both the employee and employer. It recognised the employer’s legitimate right to investigate complaints and manage its workforce. However, Judge Zipser raised concerns about how fair and impartial the process had been so far, especially given the sudden change in the employer’s attitude towards Ms Gan and the lack of evidence provided by the employer at the hearing. 

What does this mean for employers?  

For employers, this case underscores the need for caution. Courts may look closely at disciplinary actions that seem rushed, aren’t explained well, or occur immediately after an employee exercised their workplace rights (like making a complaint or proceeding on sick leave). The case shows that while managers can investigate misconduct, they must still be fair, especially when dealing with serious claims that could damage an employee’s reputation. 

Ultimately, this decision reinforces the importance of a balanced approach to workplace disputes. Investigations must be conducted with genuine impartiality, and disciplinary outcomes shouldn’t be predetermined or used as a tool for retaliation. If anything in this article has raised the alarm, we recommend contacting our legal team for advice. You can reach us here. 

About our author

Brittany Byrne is a Partner and Solicitor at Citation Legal and is based in our Brisbane office. Brittany is a leading expert in providing workplace business solutions to employers in an array of industries. Using her common-sense approach to disputes and litigious matters, she has allowed her clients to achieve commercial outcomes while protecting their reputations in the marketplace.