Atlassian free to performance manage engineer, court says

Software giant Atlassian has been released from orders preventing it from terminating or performance managing a senior employee.

Justice James Stellios has released Atlassian from an undertaking that it does not terminate or performance manage senior software engineer Alan Kavanagh, citing that it was entered into at short notice and “lacked the elegance of a lawyer’s drafting”.

The software development and project management firm was also released from compelling Kavanagh to attend “one-on-one” meetings with his supervisor, a senior engineering manager.

Instead, Atlassian gave an undertaking it would not terminate Kavanagh without seven days’ notice, and that his performance management would comply with “standard” processes.

Kavanagh launched proceedings on 18 September, alleging Atlassian had contravened the Fair Work Act 2009. On that day, the original termination undertaking was entered into.

Atlassian’s senior director of employment law (APAC) told the Federal Court she could not make arrangements for external lawyers to appear and was unable to review the claim, seek responses from the respondents or file opposing material.

While noting Atlassian did not seek to adjourn the hearing at that time, Justice Stellios said he did not consider the company should be held to undertakings “make in good faith” to the court.

In putting aside the original undertakings, Justice Stellios accepted evidence from Atlassian that it had not considered or discussed Kavanagh’s termination, and the intention was only to engage in performance management or improvement processes.

Without the threat of termination, Justice Stellios said there was no justification to uphold the termination order.

The court noted Kavanagh has made a psychosocial hazard complaint that is yet to be internally investigated.

The request that one-on-one meetings be prohibited “has been made, at least in part,” because of this complaint.

However, Justice Stellios said it was difficult to conclude Kavanagh has made a prima facie case for relief and noted there was no medical evidence before the court to support the claim that one-on-one meetings would be detrimental.

“Given that the scope of the applicant’s request was clarified by the applicant during the course of the hearing … it may be that the first respondent might consider it prudent in the present circumstances for meetings to be accompanied by such [an employee relations] staff member,” Justice Stellios said.

“However, the applicant has not established a basis for the court to intervene to impose such a measure on the first respondent.”

Justice Stellios also extended an interim suppression order over documents, noting the matter was still in an “embryotic stage”.

Citation: Kavanagh v Atlassian Pty Ltd [2026] FCA 1509.

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