FEDERAL COURT OF AUSTRALIA

Kang v Commonwealth of Australia [2008] FCA 1863

Workplace Relations Act 1996 (Cth) ss 659(2)(a), 659(2)(e), 659(2)(f), 660, 661, 663, 664

Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(1A), 43

Federal Magistrates Act 1999 (Cth) s 79(2)

Kang v Attorney-General’s Department [2008] FMCA 638 referred to

Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 cited

Claveria v Pilkington Australia Ltd (2007) 167 IR 144  referred to

Robertson v South (2000) 140 IR 169 referred to

He v Lewin (2004) 137 FCR 266 cited

Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672 cited

LILI KANG v COMMONWEALTH OF AUSTRALIA

VID 453 of 2008

TRACEY J

19 DECEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Between 4 September 2006 and 28 February 2007 Ms Lili Kang was employed in the Commonwealth Attorney-General’s Department.  Throughout this period she was a probationary employee.  On 28 February 2007 her employment was terminated on the ground that she had failed to perform her duties at an acceptable standard. 

2                     Ms Kang considered that her employment had been terminated for reasons proscribed by the Workplace Relations Act 1996 (Cth) (“the Act”).  Specifically, she alleged that she had been dismissed because of a temporary absence from work due to illness and because she had filed complaints against her employer alleging breaches of applicable laws.  She commenced a proceeding in the Federal Magistrates Court in which she sought re-instatement to her former position, compensation and costs.  At trial, she abandoned her claim for re-instatement and advised the Court that she sought compensation and an apology.  The proceeding was dismissed by the Federal Magistrate: see Kang v Attorney-General’s Department [2008] FMCA 638.

3                     The respondent (who was, by order of this Court, identified as the Commonwealth of Australia) opposed the application and sought its costs.  The Federal Magistrate did not rule on the costs application.

4                     Ms Kang lodged an appeal in this Court.  The Commonwealth cross-appealed on the costs issue.  The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) that the appeal be heard and determined by a single judge.

THE BASIC FACTS

5                     It is not necessary, for the purposes of this appeal, to recount all of the facts which are recorded in the Federal Magistrate’s reasons.  The following summary will suffice.

6                     Ms Kang was offered and accepted a position as a Senior Budgets Officer within the Financial Management Branch of the Financial Services Group in the Attorney-General’s Department.  It was a condition of her employment that she satisfactorily completed a period of six months probation.  If, during the probationary period, her work performance or conduct was not considered satisfactory her employment was subject to termination.

7                     Ms Kang’s supervisors were Mr Mark McKnight and Ms Tarnya Gersbach. 

8                     In December 2006 Mr McKnight and Ms Gersbach commenced the preparation of a report on Ms Kang’s performance during the first three months of her employment.  In mid December Ms Gersbach told Ms Kang that she did not feel able to complete the probationary report because Ms Kang had not, during that period, been given an opportunity to demonstrate her skill level.  In particular, Ms Gersbach felt unable to assess Ms Kang against two criteria, namely, “analytical skills and sound judgment” and “ability to achieve results.”  An assessment form was completed and signed by Mr McKnight but no entries were made adjacent to these two headings.  In February 2007, Ms Gersbach was advised by the Department’s Human Resources Section that it was necessary to complete these sections.  Ms Gersbach then completed the form and rated Ms Kang as “unsatisfactory” against each of these criteria.  Ms Kang was given the report on 20 February 2007.

9                     Ms Kang was distressed by her discussions with Ms Gersbach in December.  She described herself as being emotional, stressed and angry about what she regarded as unfair and unprofessional treatment.  She was concerned that it was proposed to extend the initial six month probation period by a further three months.  Ms Kang was observed to have been sullen and uncommunicative in the office.  This led Ms Gersbach to convene a second meeting with Ms Kang shortly before the Christmas vacation.  Ms Kang complained about the failure to provide an assessment report on the first three months of her probationary employment, the level of work she was being asked to perform and the failure to invite her to attend certain meetings.

10                  In January and February 2007 Ms Gersbach paid particular attention to the work being undertaken by Ms Kang.  Ms Gersbach directed Ms Kang to undertake particular tasks and imposed deadlines for the completion of those tasks.  Ms Kang complained that Ms Gersbach kept changing the tasks leading to Ms Kang being confused about what she was required to do.

11                  In mid February Ms Gersbach invited Ms Kang to come and discuss Ms Kang’s six month probation assessment.  Ms Gersbach expressed some misgivings about the performance standards being achieved by Ms Kang.  Ms Kang said that she had no problems with the work and complained that Ms Gersbach had not previously questioned her work performance.  Towards the end of the meeting Ms Gersbach informed Ms Kang that she proposed to assign her a particular task.  If it was performed satisfactorily it would satisfy Ms Gersbach that Ms Kang had achieved the necessary standards.  The task could not, however, be commenced until 1 March 2007 by which time the six month period of probation would have expired.  Ms Gersbach indicated that it would be necessary to extend the period of probation.  Ms Kang did not accept this proposal and said that she wished the Human Resources Section to be involved in her probationary process.  Ms Kang sent an e-mail to Mr Ross Butler, the Human Resources Manager and Mr Trevor Kennedy, the then Acting Assistant Secretary of the Department, requesting that appointments be made for her to see them.

12                  Mr Kennedy met Ms Kang on 16 February 2007.  Ms Kang told him that she had not been given a sufficient opportunity to demonstrate her ability to perform at the required standard.  At that time Mr Kennedy had not seen any of the probation reports on Ms Kang.  On 20 February 2007 Ms Kang sent an e-mail to Mr Kennedy in which she complained about the manner in which she was being treated and sought “fairness and justice” from Mr Kennedy.  She complained that Ms Gersbach had failed to follow the proper procedures for dealing with probationary employees.

13                  During the latter part of February 2007 Ms Kang was absent from work during all or part of 15, 16 and 19 February because of a chest infection.  I say “part of” because although a medical certificate from Ms Kang’s doctor said that she was unfit to work on 16 February, she nonetheless attended her office for the purpose of meeting Mr Kennedy on that day.  She was also absent, on and after 22 February, because of a stress condition.

14                  Shortly after his meeting with Ms Kang on 16 February 2007 Mr Kennedy received probation reports on Ms Kang.  The first dealt with the period from 4 September 2006 to 3 December 2006.  He had also received a second report from Ms Gersbach which, although it was said to cover the period from 4 December 2006 to 3 March 2007, was dated 20 February 2007.  This second report also rated Ms Kang’s performance against the criteria of “analytical skills and sound judgment” and “ability to achieve results” as unsatisfactory.  It further rated Ms Kang’s “ability to develop productive working relationships” and “ability to communicate effectively” as unsatisfactory.  Ms Gersbach recommended that a further period of probation might be considered necessary.

15                  Armed with these reports, Mr Kennedy considered what action he should take.  His provisional view, based on the probation reports was that it was unlikely that Ms Kang would be able to improve her performance to an acceptable standard during a further period of probation.  He discussed his reservations with Ms Gersbach. 

16                  In an affidavit, filed in the Federal Magistrates Court, Mr Kennedy explained his appreciation of the situation which confronted him at the end of February 2007 as follows:

“13.      Based on all of the information before me I was concerned that:

13.1.     the contents of the two probation reports … seemed to me to suggest that Ms Kang’s performance was so unsatisfactory as to justify the termination of her employment, rather than its extension (even under probation). 

13.2.     Ms Gersbach considered there had been a substantial and continuing level of unsatisfactory performance by Ms Kang throughout the probation period.  Based on my opinion of Ms Gersbach’s management skills I had confidence in her judgment about her concerns about Ms Kang’s performance;

13.3.     based on my discussions with Ms Gersbach and the probation reports, Ms Kang seemed to be unable to grasp basic concepts and required a level of direct supervision which was more than should be required for an employee at APS 6 level and it did not appear likely that this need would go away.

13.4.     the drain on Ms Gersbach’s section resources that would be required to manage Ms Kang’s performance for a further three months in circumstances in which I lacked any real confidence that such an exercise would raise Ms Kang’s performance to an acceptable level;

13.5.     the way in which Ms Kang had started to manage the Department’s efforts to deal with these concerns – which suggested that she was not willing to take those concerns on board;

13.6.     Ms Gersbach had by this time come around to the view that Ms Kang’s employment should be terminated.”

17                  For these reasons Mr Kennedy deposed that he decided not to follow Ms Gersbach’s written recommendation to extend Ms Kang’s probation period, and, instead, decided to terminate Ms Kang’s employment.

18                  Mr Kennedy’s evidence on this issue was not challenged in cross-examination.

19                  Ms Kang was notified of the termination of her employment by letter dated 28 February 2007.

THE FEDERAL MAGISTRate’s decision

20                  The Federal Magistrate confronted a number of difficulties.  The first was that the application before him failed to identify, with precision, the grounds on which Ms Kang relied.  The second was that she appeared in person despite acknowledging that she had some difficulty in communicating in her second language, English. 

21                  The Federal Magistrate understood, from Ms Kang’s submissions that she was alleging that the Commonwealth had contravened s 659(2) of the Act by dismissing her because of her temporary absence from work due to illness and because she had filed complaints about her employer alleging breaches of applicable laws.  These were the only proscribed reasons identified in the affidavit which Ms Kang swore in support of her application.

22                  Section 659(2) of the Act stipulates that:

“… an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(a)                temporary absence from work because of illness or injury within the meaning of the regulations;

(b)                …

(c)                …

(d)                …

(e)                the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)                 race, colour, sex, sexual preference, age, physical or metal disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

…”

23                  Section 663 of the Act provides that an employee who alleges a contravention of s 659 by his or her employer may seek various remedies in the Federal Magistrates Court.  Section 664 contains a reverse onus provision as follows:

“In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a)           it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b)           it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason …”

24                  The Federal Magistrate accepted that, once Ms Kang had made the allegation that Mr Kennedy had terminated her employment for one or more of the reasons identified in s 659(2)(a) and (e), the onus fell on the Commonwealth, under s 664, to prove that the termination did not occur for a proscribed reason:  see Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 at 350 [15].

25                  The Federal Magistrate did not consider that Ms Kang had been dismissed because of absences due to illness.  There was no reason why Mr Kennedy would have been aware of any of Ms Kang’s absences because of illness.  It had not been put to him that he was aware of any such absences or that he had acted because of them.  His Honour rejected the claim, insofar as it was based on s 659(2)(e) on the basis that it was well settled that the paragraph did not apply where all that the employee had done was to make a complaint directly to his or her employer:  see Zhang at [19]-[30]; Claveria v Pilkington Australia Ltd (2007) 167 IR 144 at [110]-[112].  All of Ms Kang’s complaints about her treatment were directed to other officers within the Attorney-General’s Department.

26                  Despite these findings the Federal Magistrate also gave consideration to the question of whether the Commonwealth had made good a defence under s 664(b) of the Act.  He was satisfied, on the evidence, that Ms Kang “was not able to perform her duties to the requisite standards because she failed to demonstrate analytical skills and sound judgment, an ability to achieve results and position specific capability being knowledge of the government’s financial management framework and she failed to achieve each of these matters to the requisite standard.”  Because her employment had been terminated within the probation period and it was terminated because of unsatisfactory performance, he held that “Mr Kennedy was within his rights in terminating the applicant’s employment”.  In short, his Honour accepted Mr Kennedy’s evidence as to the reasons he had terminated Ms Kang’s employment.

THE APPEAL

27                  Ms Kang’s notice of appeal to this Court, like her application in the Federal Magistrates Court, lacked precision and clarity.  In order to try to identify the grounds on which she seeks to rely it was necessary to have recourse to an affidavit sworn by Ms Kang in support of her appeal.  In oral argument she accepted that she wished to raise six grounds.  She accepted that those grounds had been summarised accurately by the Commonwealth as follows:

·                    The learned Magistrate erred by considering that the matter was one involving “unfair dismissal”, as opposed to “unlawful termination”.

·                    The learned Magistrate erred by not considering paragraph 659(2)(f) or ss 660 or 661 of the Act.

·                    The learned Magistrate erred by finding that the reverse onus in paragraph 664(b) had been satisfied because the Commonwealth did not prove that the termination was for a reason or reasons that did not include a proscribed reason.

·                    The learned Magistrate erred in his construction and/or application of paragraph 659(2)(e) of the Act.

·                    Ms Kang was denied justice because she was not granted an adjournment during the hearing before the Federal Magistrate to seek the opinion of an expert document examiner in relation to the alleged forgery by Ms Gersbach of Mr Knight’s signature in a document which was in evidence.

·                    The learned Magistrate erred by misstating evidence, not considering certain evidence led by Ms Kang and/or drawing inferences which were not open to him on the evidence.

“Unfair Dismissal”

28                  Ms Kang alleges that the Federal Magistrate erred by treating her case as one of unfair dismissal rather than unlawful termination.  She bases this complaint on the fact that the catchwords on the cover sheet of the Magistrate’s decision include the words “unfair dismissal” rather than “unlawful termination”. 

29                  There is clearly an error in the catchwords.  They do not, however, form part of the judgment.  When his Honour’s reasons for the decision are read it is clear that he dealt with Ms Kang’s claim under s 659 of the Act and did not deal with it under the other provisions of the Act which deal with unfair dismissal.

30                  This ground lacks merit.

Failure To Consider Sections 659(2)(f), 660 or 661

31                  At the hearing Ms Kang abandoned her complaint that the Federal Magistrate had failed to consider s 660 of the Act.  That section had no possible relevance in the circumstances which led to her termination.

32                  Section 661 requires that an employer must not terminate an employee’s employment without giving a prescribed period of notice or payment in lieu.  Ms Kang’s application and supporting affidavit did not allege that the Commonwealth had contravened s 661.  Nor did she adduce any evidence to suggest that the requirements of the section (if it applied to her employment) had not been satisfied.  There was, therefore, no occasion for the Federal Magistrate to give consideration to the application of s 661. 

33                  Section 659(2)(f) provides that an employer must not terminate an employee’s employment for one or more of some 13 reasons which, collectively, may be characterised as discriminatory or prejudicial reasons.  They include, for example, race, sex, religion and political opinion.

34                  Neither Ms Kang’s application nor the affidavit which supported it alleged that she had been terminated for any of these reasons.  Nor did she call any evidence which would have supported a complaint along these lines.  When Mr Kennedy gave evidence she did not suggest to him that he had acted for any of the discriminatory reasons.  In submissions to the Federal Magistrate she made a passing reference to s 659(2)(f) but did not identify any one of the discriminatory grounds contained in that paragraph as being a reason for her termination.    When counsel for the Commonwealth was making his submissions in reply the Federal Magistrate directed his attention to the passing reference to s 659(2)(f).  Counsel responded by saying that he had heard the reference “but I understood that to be a reference to her claim before the [Human Rights and Equal Opportunity] Commission.”  The Magistrate accepted that this was the case.  Ms Kang said nothing to suggest that the understanding of counsel and the Federal Magistrate was mistaken.

35                  The Federal Magistrate was not, in my opinion, required, in these circumstances, to give consideration to the possible application of s 659(2)(f).  In any event, had he done so, there was no evidence before the Court which would have allowed him to make any finding adverse to the Commonwealth under that paragraph.

36                  This ground is rejected.

Reverse Onus

37                  Although Ms Kang made reference to s 664 of the Act in her notice of appeal she did not particularise any error on the part of the Federal Magistrate in applying the reverse onus provisions contained in the section.  Nor did she develop any argument suggesting the existence of such an error when she made oral submissions.

38                  In dealing with s 664 the Federal Magistrate directed himself consistently with the decision of a Full Court of this Court in Zhang at 350 [15], and the decision of O’Loughlin J in Robertson v South (2000) 140 IR 169 at 173 [16].  No error in his Honour’s application of s 664 has been demonstrated.

Construction and Application of Section 659(2)(e)

39                  It is well established that s 659(2)(e) “is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations.  The ground would not be established by the making of complaints directly to the employer alone”: He v Lewin (2004) 137 FCR 266 at 280 [44] (per Gray and Mansfield JJ); Zhang at 350-352 [19]-[33].

40                  Ms Kang did not suggest that she had made any external complaints about the manner in which she had been treated in the course of the review of her performance.  Indeed she pointed to certain provisions of a Certified Agreement which required employees, in the event of a dispute with management, to engage in an internal dispute resolution process before having recourse to external authorities.  She said that she had felt constrained by this provision from doing more than complaining to other officers within the Department.

41                  In the absence of any evidence of a complaint having been made to an external body, the Federal Magistrate was bound to hold that no contravention of s 659(2)(e) had occurred.

42                  This ground is rejected.

Denial of Adjournment

43                  In the course of the trial Ms Kang compared the signature of Mr McKnight on her first probation report with his signature appearing on other documents.  The comparison led her to conclude that Mr McKnight had not signed the first probation report and that someone had forged his signature.  She alleged that the forgery had been perpetrated by Ms Gersbach.  When cross-examined about the matter Mr McKnight repeatedly asserted that the signature was his.  Not satisfied, Ms Kang insisted that the signature had been forged and sought an adjournment so that expert handwriting evidence could be obtained to confirm her allegation.  The Federal Magistrate refused to adjourn the trial so that an expert opinion could be obtained.  He did so for a variety of reasons including the failure of Ms Kang to raise the allegation prior to trial, her failure to obtain and present evidence of such a serious allegation in a timely manner and the fact that the trial was nearing its completion.

44                  The Federal Magistrate had a discretion to grant or refuse the adjournment sought by Ms Kang.  Ms Kang has failed to establish that the exercise of that discretion miscarried.  In my view the Magistrate acted on relevant considerations and in the interests of justice.

45                  Even in I am wrong in this conclusion the refusal of the adjournment could have had no material bearing on the outcome of Ms Kang’s application.  Had the adjournment been granted and had a forensic examination established that Ms Gersbach had forged Mr McKnight’s signature on the first probation report such a finding would not have assisted Ms Kang in establishing that the Commonwealth had contravened s 659(2) of the Act.  The undisputed evidence was that Mr McKnight and Ms Gersbach had collaborated in the preparation of the report.  They adhered to the opinions expressed in the report and, in particular, the opinions that Ms Kang’s performance had been unsatisfactory in a number of respects.  Ms Gersbach had conveyed those joint views to Mr Kennedy.  Mr Kennedy made the decision to terminate Ms Kang’s employment.  The Federal Magistrate was satisfied that Mr Kennedy had acted for the reasons which he gave and not for any proscribed reasons.  None of these findings turned on whether Mr McKnight’s signature on the first probation report was authentic. 

46                  This ground fails.

Failure to Refer to Evidence and Draw Inferences

47                  Ms Kang pointed to a number of passages in the Federal Magistrate’s reasons which she said contained incorrect statements.  The first was the statement, in paragraph 8 of his Honour’s reasons, that:  “[Ms Kang] says that at the time she received negative feedback from Mr McKnight about her work performance.”  In this passage the Federal Magistrate was paraphrasing a passage from an affidavit affirmed by Ms Kang.  In the affidavit she had said:  “there was no (sic) any negative feedback mentioned about my work performance from Mr. McKnight.”  It is evident that the word “no” had been omitted before the word “negative” in the sentence about which Ms Kang makes complaint.  The error is one of transcription.  It is evident that the Federal Magistrate had read Ms Kang’s affidavit and can be taken to have understood her point.  In any event, the factual error (if there was one) could not have had any effect on the outcome of Ms Kang’s application.

48                  Ms Kang next points to certain errors in his Honour’s reasons relating to the first probation report.  In paragraph 15 his Honour observed that, following an interview with Ms Gersbach on 15 December 2006, it was “apparent that Ms Kang did not take well to the report.”  In paragraph 17 there is reference to a second meeting between Ms Kang and Ms Gersbach on 19 December 2006.  The Federal Magistrate attributes to Ms Kang the evidence that, at that meeting, “the probation report itself” was “addressed”.  It was common ground that Ms Kang did not receive a copy of the first probationary report until 20 February 2007.  It was not, therefore, strictly accurate to say that she did not take well to the report or that the report had been discussed at the 19 December 2006 meeting. 

49                  When the evidence is read in context it is clear enough that the references to the report are references to the performance issues which were of concern to Ms Gersbach and to Ms Gersbach’s unwillingness to complete the report after the three month period which had concluded in December 2006.  What Ms Kang did not take well to was the advice, given to her by Ms Gersbach on 15 December 2006, that she did not feel able to rate Ms Kang against certain criteria.  Ms Kang identified the issue discussed on 19 December 2006 as being:  “[w]hy can’t you prepare probation report if it was not my fault?  How did you feel if you were in my position?”

50                  The two references to the “report” are plainly ambiguous.  Despite this there is nothing to suggest that the Federal Magistrate misunderstood the evidence or was led into error by a false appreciation of it.  Ultimately nothing turned on whether Ms Kang had access to the report in December 2006. 

51                  In paragraph 52 of his reasons the Federal Magistrate held that her case, insofar as it was founded on s 659(2)(e), disclosed no more than that she had made complaints to various individuals within the Attorney-General’s Department.  One of those individuals was a Ms Sonia Kim who was the Department’s Harassment Officer.  The Federal Magistrate records that Ms Kang had given evidence that she said to Ms Kim that “she [Ms Kang] was prepared to make a complaint” about her treatment during the probationary period.  Ms Kang objects that her evidence was that she had told Ms Kim that she was prepared to make a formal complaint.  The absence of the adjective in the Federal Magistrate’s reasons is of no account.  Whether the complaint was formal or informal it was no more than a proposed complaint.  Ms Kang failed in making good her claim under s 659(2)(e) because she had made no complaint to any external body.

52                  In paragraph 79 of his reasons the learned Magistrate said:

“Although at trial the applicant contended that Ms Gersbach had a negative attitude toward her I do not accept that to be the case.  I accept Ms Gersbach as having truthfully and honestly recounted her assessment of the applicant in respect of the applicant’s performance.  I accept that Ms Gersbach professionally and impartially expressed her views concerning the applicant’s performance of her duties between December 2006 and late February 2007 whilst she directly oversaw the applicant.”

Ms Kang complains that these findings of the Magistrate misstate the facts.  In the quoted paragraph the Magistrate records his assessment of Ms Gersbach as a witness and his acceptance of her evidence.  These are his findings on matters going to the credit of the witness.  No misstatement of uncontested facts are made.  The Magistrate does no more than state his conclusions relating to aspects of Ms Gersbach’s conduct.  Ms Kang may well not agree with that assessment.  That is not to the point.

53                  In paragraph 85 of his reasons the Federal Magistrate says that Ms Kang “contended that Mr McKnight was motivated to seek her dismissal to cover up his own misconduct.”  Ms Kang made no such allegation at trial.  As the rest of the paragraph makes plain, Ms Kang was said to have made the allegation in the context of her allegation that Ms Gersbach had forged Mr McKnight’s signature on the first probation report.  In this Court Ms Kang came close to making the allegation which she had not made in the Federal Magistrates Court.  In her notice of appeal she says:

“Ms Gersbach noticed that her forging signature was noticed by Ms Kang … Then, in order to cover it up or protect herself, Mr McKnight was convinced to provide affidavit to the court.  It was too late for Mr McKnight to understand that he, in fact has nothing to do with this case at the end of trial.”

This suggests that, at minimum, Mr McKnight was an unwitting accessory to a cover up on the part of Ms Gersbach.  Whether that be right or not and whether or not the Magistrate mistakenly referred to Mr McKnight instead of Ms Gersbach, neither the alleged forgery (which was not established by any evidence) or the alleged cover up had any bearing on the Federal Magistrate’s decision to reject Ms Kang’s claims under s 659(2)(a) and (e) of the Act.  As already noted, the decision to terminate her employment was made by Mr Kennedy and his decision was not influenced by any forgery or any cover up.  As already noted, the Federal Magistrate accepted that Mr Kennedy acted for the reasons explained by him at trial.

54                  It is not necessary to record in detail all of the “facts” which Ms Kang alleged that the Federal Magistrate ignored in his reasons.  This is because the so called “facts” amounted to no more than assertions on the part of Ms Kang.  She complains, for example, that it was

“… inferential that Mr. (sic) Gersbach didn’t like Ms Kang personally.  She called her for meeting on 15 December purposely when Mr McKnight was on leave.  Mr McKnight has also mentioned in court trial that he has no idea about the meeting on 15 December.  Ms Gersbach didn’t have the intention to talk to Ms Kang about her probation rather she was trying to make her unhappy.  Her intentions were clearly to provoke her to leave AG.”

55                  The Federal Magistrate was under no obligation to record these assertions in his reasons for decision.  They were no more than Ms Kang’s assessment of the motivation of Ms Gersbach and others.  They were either not relevant or were but marginally relevant to Ms Kang’s allegations that the Commonwealth had contravened s 659(2)(a) and (e).

56                  This ground must also fail.

57                  Ms Kang obviously believes strongly that she was not treated fairly by the Attorney-General’s Department during her performance review.  In her written submissions, her submissions at trial and her submissions on this appeal she devoted much time and space to complaints about how the process was said to have miscarried.  Ms Kang’s approach seemed to be that, once it was established that the process had miscarried the conclusion was inevitable that her employment had been terminated for a proscribed reason.  It should be understood that, in rejecting her appeal, the Court has not been required to form any judgment as to the efficacy of the review process.  Nor has it done so.

THE CROSS-APPEAL

58                  In its response to the appellant’s application in the Federal Magistrates Court, the Attorney-General’s Department sought orders that the application be dismissed and that the appellant pay its costs of the application.  At trial counsel for the Department submitted that Ms Kang had instituted the proceeding without reasonable cause and that a costs order should be made against her.  The Federal Magistrate made no mention of the costs issue in his reasons for decision and he made no orders in relation to costs.

59                  The respondent cross-appealed against the Federal Magistrate’s decision on the ground that he had erred by failing to consider the respondent’s application for costs and that such an order should have been made.

60                  By s 79(2) of the Federal Magistrates Act 1999 (Cth) the Federal Magistrates Court has power to award costs in all proceedings before it.  This power is subject to any contrary provision in another Act. 

61                  Section 666 of the Workplace Relations Act 1996 (Cth) provides that a party must not be ordered to pay the costs of any other party in a proceeding alleging a contravention of s 659 of the Act unless the Court is satisfied that the applicant instituted the proceedings without (inter alia) reasonable cause.  The respondent contended that the proceeding in the Federal Magistrates Court had been instituted without reasonable cause and that it had no real prospects of success or was doomed to failure: see Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672 at 685.  This was because Ms Kang did not produce any evidence capable of supporting her application and because the case she presented to the Court amounted to a mere allegation which could be rebutted by a simple denial by the respondent.

62                  Ms Kang’s application to the Federal Magistrates Court, insofar as it alleged a contravention of s 659(2)(e), was bound to fail.  Her own evidence established that she had not made any complaint to any external authority.  In the absence of such a complaint, for reasons already given, she could not succeed.

63                  It cannot, however, in my opinion, be said that her complaint alleging a contravention of s 659(2)(a) had no prospects of success or was doomed to fail.  Ms Kang gave undisputed evidence about a series of absences from work which commenced in mid February 2007.  She was absent when the decision was made to terminate her employment.  She had provided the Attorney-General’s Department with medical certificates to explain her absences.  This evidence alone was, of course, not sufficient to make good a claim of contravention of s 659(2)(a).  It was, however, sufficient, having regard to the provisions of s 664(b), to require more than a mere denial on the part of the respondent.  The respondent did not, apparently, consider that a mere denial would suffice.  It accepted that it was necessary to call Mr Kennedy to give evidence about when he made his decision, why he made it and his knowledge (or lack of it) of the medical certificates and Ms Kang’s absences prior to his making the decision.

64                  For these reasons I do not consider that the case falls within the relevant exception in s 666(1) of the Act.  Accordingly, there will be no order for Ms Kang to pay the respondents’ costs of her application to the Federal Magistrates Court.  The cross-appeal will be dismissed.

COSTS OF THE APPEAL

65                  The appeal from the Federal Magistrates Court to this Court was brought pursuant to s 24(1) of the Federal Court Act.  Like the Federal Magistrates Court this Court has a wide discretion to award costs in any appeal which comes before it: see s 43 of the Federal Court Act.  This power is conferred subject to any contrary provision in another Act.

66                  Section 824 of the Workplace Relations Act 1996 (Cth) applies to appeals heard by this Court if they deal with matters arising under that Act.  It provides that a party to an appeal must not be ordered to pay costs incurred by any other party unless the appellant instituted the proceeding (inter alia) without reasonable cause.

67                  The respondent applied for its costs in the event that it was successful in defending the appeal.  It submitted that the appeal had no prospects of success and was deemed to fail.

68                  Ms Kang appealed against the Federal Magistrate’s rejection of her claims based on both s 659(2)(a) and (e).

69                  The Federal Magistrate explained clearly, and by reference to binding authority why it was that Ms Kang could not make good her claim under s 659(2)(e).  She ought reasonably to have understood that any challenge to the Magistrate’s findings in relation to that paragraph was bound to fail.  It was bound to fail.

70                  Ms Kang’s appeal against the Federal Magistrate’s decision, insofar as it related to s 659(2)(a), was also bound to fail.  The Federal Magistrate had made factual findings that Mr Kennedy had not been aware of Ms Kang’s illnesses or her absences because of those illnesses at the time at which he made his decision to terminate her employment.  The Federal Magistrate also found that Mr Kennedy had not terminated Ms Kang’s employment because of her temporary absences from work because of illness.  These findings were plainly open on the evidence.  They could not be disturbed on appeal in circumstances in which Ms Kang had not put to Mr Kennedy, at trial, that he had terminated her employment for this reason.

71                  The appeal was instituted without reasonable cause.  Ms Kang should pay the respondent’s costs of the appeal.

Associate:

Dated:         19 December 2008