Judge rejects APS employee's adverse action claims over reviews and IME
A Federal Court judge has thrown out an APS employee’s general protections case over performance reviews, an independent medical exam and bereavement leave.
In a 262‑paragraph judgment handed down on 15 December 2025, Justice Needham of the Federal Court of Australia dismissed claims by Dr Yelena Zabortseva, an Executive Level 1 Assistant Director at the Australian Public Service Commission (APSC), that her employer breached the Fair Work Act and the APSC enterprise agreement.
Zabortseva, who represented herself, alleged the APSC took unlawful “adverse action” against her because she exercised workplace rights by making complaints and inquiries about her employment. Those complaints touched on the direction of a CALD Employment Strategy project, the management of a graduate with psychological difficulties, security concerns, the conduct of her performance reviews and a dispute over bereavement leave when her stepfather died in Kazakhstan.
The alleged adverse actions were tightly defined. They were three performance appraisals by her then manager, a direction to attend an Independent Medical Examination (IME) with a nominated psychologist, and a decision to place her on miscellaneous leave with pay at the time of that referral.
The court heard evidence about tensions inside the CALD Employment Strategy Taskforce, including disagreements about what the applicant described as a shift from “promoting multiculturalism” to “combatting negative White culture”, as well as conflict with a colleague and concerns over supervising a graduate described as having psychological difficulties. The manager kept notes of discussions with Zabortseva, recording concerns about her communication style, repeated insistence on her views and the impact on team members.
Justice Needham accepted that several of Zabortseva’s complaints – including those about the lack of an acting manager when her supervisor was absent, her performance assessments and bereavement leave – could amount to the exercise of workplace rights.
However, the judge held that none of the five pleaded actions actually qualified as “adverse action” under the Fair Work Act. The performance comments were treated as feedback within a normal appraisal framework. They did not lead to formal performance management or disciplinary processes.
The direction to attend an IME was found to be a lawful and reasonable step taken under public service legislation and regulations. It was issued after concern about Zabortseva’s behaviour and its effect on colleagues, not as retaliation for her complaints.
Her placement on miscellaneous leave with pay was also upheld. The court characterised it as a temporary measure while the agency sought medical advice about fitness for duty, noting that her ordinary leave balances and superannuation were unaffected. In those circumstances, Justice Needham found no “real and substantial” prejudice to her position.
On bereavement leave, the APSC did err. The court found the agency misapplied its enterprise agreement by refusing Zabortseva an extra 1.5 days’ paid bereavement leave, after initially granting 1.5 days, because HR misunderstood how the three‑day entitlement could be taken. That amounted to a breach of section 50 of the Fair Work Act.
Even so, Justice Needham declined to impose any financial penalty, treating the mistake as a one‑off misinterpretation rather than knowing or reckless non-compliance.
The application was dismissed. The court ordered a timetable for written submissions on costs and fixed the deadline for any appeal at 4pm on 20 February 2026.
For HR leaders, the case underscores that detailed records, measured feedback and carefully justified medical referrals can withstand scrutiny, even when an employee mounts an extensive legal challenge.
