Federal Court of Australia

Assi v Department of Climate Change, Energy, the Environment and Water [2022] FCA 1592

ORDERS

UNTIL FURTHER ORDER OF THE COURT, THE COURT ORDERS THAT:

1.    Pursuant to s.545 of the Fair Work Act 2009 (Cth), the First Respondent and the Second Respondent be restrained, whether by themselves, through their employees, agents or delegates, from taking any steps to terminate the Applicant’s employment with the First Respondent;

2.    Costs of the application for interlocutory relief be costs in the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an originating application filed 21 December 2022. In that application the applicant seeks substantive relief in the form of various declarations that the respondents have contravened the Fair Work Act 2009 (Cth) (FW Act), restraining orders pursuant to s 545 of the FW Act and penalties for contraventions. Presently however, the Court is tasked with determining the applicant’s claim for interlocutory relief, which is as follows:

The Applicant also claims interlocutory relief.

1.     Pursuant to s.545 of the Fair Work Act 2009 (Cth), an order that the First Respondent and the Second Respondent be restrained, whether by themselves, through their employees, agents or delegates, from taking any steps to terminate the Applicant’s employment with the First Respondent;

2.     The costs of the application for interlocutory relief be costs in the proceedings.

BACKGROUND

2    In support of the application is an affidavit affirmed on 21 December 2022 by Mr Attia, the solicitor for the applicant. In summary, Mr Attia deposes:

    In about December 2021 the applicant applied for employment with the first respondent. At that time the applicant provided a declaration to the effect that she had resigned from her previous employment during a workplace investigation while she was an employee of the Commonwealth.

    The applicant was offered a role with the first respondent by letter of offer dated 19 May 2022, and commenced in her employment on 26 June 2022 subject to a three month probation which ended on 7 September 2022. The applicant’s direct manager, Ms Rachel Burgess, confirmed at that time that the applicant met all the expectations of her role.

    On 17 November 2022 the applicant participated in a six-month probation assessment with Ms Burgess. Ms Burgess again confirmed that the applicant met all of the expectations of her role. The assessment stated for unknown reasons that the probation period ended on 25 December 2022.

    The applicant understood from conversations with Ms Burgess that her employment would be made permanent imminently.

    On 13 December 2022 without any warning or prior indication, the applicant received a letter from the second respondent, who is employed as the Branch Head, Capability and Employment section of the Operations Division of the Department. The letter referred to the applicant’s former employment with the Department of Agriculture, Water and the Environment from which she resigned on 11 October 2019. It required a response by 20 December 2022. Materially the letter stated:

I am writing to advise you that the Department of Climate Change, Energy, the Environment and Water (department) is considering terminating your employment under section 29(1) of the Public Service Act 1999 (Cth) (PS Act). The ground upon which the department proposes to terminate your employment is section 29(3)(1) of the PS Act. being your failure to meet a condition of your engagement with the department, namely, satisfactorily completing your probation.

…

Reasons for preliminary view

In considering this matter, I have had regard to the following material:

•    your notice of engagement - dated 19 May 2022;

•    notice of suspected breach of the APS Code of Conduct- dated 8 May 2019;

•    your declaration of a previous Code of Conduct investigation; and

•    correspondence regarding your resignation from the Department of Agriculture, Water and the Environment (DAWE), dated 2, 9 and 11 October 2019.

Completion of your probation period

The purpose of the probation period is for the department to determine that you can perform effectively in your role and will be a productive participant in the Australian Public Service (APS) workforce, having regard to your behaviour, work performance and demonstration of the department's values.

It has come to the department's attention that, during your recruitment process when you declared Information about a previous Code of Conduct investigation that was undertaken against you by DAWE, you stated the following:

In my last role at the Department of Agriculture, Water and the Environment my previous supervisor initiated an investigation against me without any prior notice or warning about hours of attendance. I was already performing satisfactorily and this was a sudden event. I cooperated fully and provided a lot of information including evidence of my whereabouts as in that role I was responsible for IT service delivery across various locations and had good records. I provided two responses with significant data and evidence however there was no response back to any of the information that I provided.

At that time I was interested in going back to a regulatory policy position and decided to work in this field. I understand that my previous supervisor had similar issues with other staff members and has left the Department straight after my move. This was a shocking event to me as I am very proud of my public service and at the Department of Agriculture was in fact appointed by the Secretary of the department as the regional fraud authorised officer. If anything my long career can testify to my long history of loyalty and integrity. This situation was completely unexpected without any prior warning and in fact during the same month my supervisor had discussed with me about taking part In the Jawan talent program for EL2. Since then as I mentioned I responded on time with significant evidence and justification and no response was received 5 months later and the case was concluded with no findings,

The Department has now identified that, in providing this declaration, you may have:

•    provided misleading information that you knew to be misleading; and

•    wilfully failed to disclose information that you knew, or ought reasonably to have known was relevant to your response to the declaration.

The allegations that were previously made against you were (in summary):

•    between the 24 January 2018 and 28 February 2019, you had undertaken less than an average of 7 hours and 30 minutes of work per day (a shortfall of over 500 hours of work equating to approximately $40,000 in overpayments);

•    between 26 September 2016 and 29 January 2019, you operated a business (GTG Pty Ltd) during work hours instead of performing your duties on behalf of the department and as part of your personal business activities, on occasion sent business-related emails using your official departmental email address and signature block; and

•    on 18 December 2018, you supplied a Declaration of Interests form that contained information you knew to be false, and that your lodgement of this form represented a significant and unjustified delay in declaring to the department your involvement in secondary employment and the associated conflict of interest.

However, it was not the case that, as you say, you 'responded on time with significant evidence and justification and no response was received 5 months later and the case was concluded with no findings'. Rather, what in fact occurred was that you responded to the allegations on 22 May and 5 September 2019 and following that, your lawyer negotiated an outcome whereby the investigation would not be concluded and you would resign from your employment with DAWE.

The concern that the department has with your response is the following:

•    You stated in the declaration: 'I provided two responses with significant data and evidence however there was no response back to any of the information that I provided.'

The department considers this response is misleading because it was not the case that you had no response back from DAWE. In solicitor-to-solicitor correspondence, dated (2, 9 and 11 October 2019 (ie after your response was submitted to DAWE)), you negotiated an outcome whereby you would resign from your employment with DAWE and in return the investigation would not be concluded. Accordingly, my preliminary view is that you knew that this information submitted as part of the declaration was misleading.

•    You stated in the declaration: 'Since then as I mentioned I responded on time with significant evidence and justification and no response was received 5 months later and the case was concluded with no findings.'

Again, for the reasons set out immediately above, my preliminary view is that you knew that this information submitted as part of the declaration was misleading.

While you are correct to say in the declaration that the investigation into the allegations was discontinued, your declaration gives the impression that the investigation was discontinued because of your response to the allegations (which you say justified your conduct). ln the context of you providing this information in the declaration, I consider that the entire context of the discontinuation of the investigation was relevant to a proper consideration of the information you provided in your declaration.

I am concerned that you, wilfully, did not provide the entire context of the discontinuation of the investigation when you ought reasonably to have known that it was relevant to the information in your declaration and the decision in relation to your recruitment.

The concerns raised above relate to matters of honesty and Integrity, which if investigated would likely constitute a breach of the Code of Conduct.

As such, having regard to these concerns, and your obligations under the APS Code of Conduct and the APS Values, it is my preliminary view is that you are not suitable for continued employment with the department and the APS.

    On 15 December 2022 the applicant wrote to the second respondent, seeking further time to make a reply, asking for the basis of the concerns raised (noting it lacked particularity), and raising concerns about the process, and seeking further information.

    The second respondent replied in a letter dated 19 December 2022 as follows:

Further information | Proposed Termination of your Employment

On 13 December 2022, I notified you of my preliminary decision to terminate your employment with the Department of Climate Change, Energy, the Environment and Water (the department) (Preliminary Decision) under subsection 29(1) of the Public Service Act 1999 (Cth) (the PS Act).

The relevant ground on which I proposed to terminate your employment was section 29(3)(f} of the PS Act, being your failure to meet a condition of your engagement with the department, namely, satisfactorily completing your probation. You were provided with seven (7) days to respond, being until 20 December 2022.

On 15 December 2022, you responded to my Preliminary Decision (Initial Response). In this Initial Response you:

•    asked for an extension of time to respond to my Preliminary Decision;

•    asked for further information to be provided to you about the contents of my Preliminary Decision; and

•    cited concerns about the information in the Preliminary Decision and the conduct of this matter to date.

My response to these matters is below.

Request for an extension of time to respond

I acknowledge your personal circumstances (including your overseas travel), the shock of you receiving my Preliminary Decision and the stress inherent in a process of this nature. It is appropriate that a decision be made about your probation before the end of your probation period.

I am prepared to grant you an extension of time to respond to my Preliminary Decision. You must provide your response to the Preliminary Decision by no later than 2.00 pm (AEST) on Thursday, 22 December 2022.

At that time, I will proceed to make my final decision about the proposed termination of your employment on the information before me.

Matters raised about Preliminary Decision

In your Initial Response, you expressed various concerns and requested further information about the grounds for my Preliminary Decision. I am satisfied that all the information you require to respond to the Preliminary Decision are set out in the Preliminary Decision.

However, for the avoidance of doubt, I set out my response to your questions below.

1. Which specific probation condition has been breached?

I confirm that the relevant condition is the condition of probation. Based on an assessment of your behaviour (and, specifically, a concern that you have breached the APS Code of Conduct (Code)), I have formed a preliminary view that you are not suitable for employment in the Department and the Australian Public Service (APS).

2. How has the specific probation condition been breached?

The issue is that, because of my concerns regarding your behaviour during the recruitment process for your employment, I have formed the preliminary view that you are not suitable for employment in the Department and the APS.

On this basis, it is my preliminary view that you have failed your condition of probation.

3. On what basis is it alleged that the information provided by me was misleading?

This was outlined to you in my Preliminary Decision. In this respect, I refer you to the last set of dotpoint in my Preliminary Decision that outlines my specific concerns with the information you provided during your recruitment process.

4. On what basis is it alleged that I knew or ought reasonably to have known that information I provided was allegedly misleading?

The basis for this preliminary conclusion is that you have first-hand knowledge of all relevant events that are set out in my Preliminary Decision. This includes:

•    the previous Code of Conduct investigation process;

•    the circumstances of your resignation and the discontinuation of the previous Code of Conduct investigation; and

•    the completion of you application for your current position.

5. On what basis is it alleged that I wilfully failed to disclose information that I allegedly knew or ought reasonably to have known was relevant to my response

The fact that you disclosed the information you did as part of the recruitment process indicates that you considered this information to be relevant and responsive to the question that was asked.

6. Please explain why you have made reference to and had regard to the notice of suspected breach of the APS Code of Conduct dated 8 May 2019

I acknowledge that, in correspondence dated 9 October 2019 from the Australian Government Solicitor (AGS), it was indicated to you that certain records would be destroyed within 18 months, consistent with the National Archives Act 1983 (Cth).

I am confident that what was communicated to you was an accurate reflection of what the Department understood would occur at the time this statement was made. For whatever reason, regrettably, that did not occur.

Be that as it may, the issue that I am presently considering is your behaviour during your recruitment for your role and your suitability for employment in the Department and the APS. about your conduct during your probation.

    The applicant’s solicitor wrote to the first respondent raising concerns, requesting that the proposed decision and process of the first respondent be reviewed in accordance with the relevant enterprise agreement, and requesting an extension of time until 7 January 2023 for the applicant to provide a more detailed response. The first respondent did not respond.

    The applicant experienced stress and anxiety requiring hospitalisation.

    The applicant’s solicitor has concerns in relation to the first respondent’s proposed decision and process, including that:

•    The proposed decision is without basis and takes into account erroneous and improper considerations;

•    The process which has been adopted offends the requirements on the first respondent under the Department of the Environment and Energy Enterprise Agreement 2016-2019 (Agreement) and Public Service Act 1999 (Cth) (Act);

•    the proposed decision and process is contrary to clauses 7.3 and 7.5 and 7.55 of the Agreement. In particular; it is apparent that the first respondent has formed a preliminary finding about the applicant in relation to misconduct without reference to the stated procedure for determining the same;

•    In relation to the FW Act:

(a)    in belatedly raising the issue and failing to address the alleged breach at the commencement or soon after the applicant’s employment on 27 June 2022, the first respondent is acting contrary to sections 10 and 10A of the FW Act;

(b)    in rushing the process and requiring a hurried consideration while the applicant is ill and seeking representation the first respondent had contravened section 15 (and in particular section 15(4)); and

(c)    reliance on historical matters which were resolved and entirely addressed in relation to considering performance during probation was as a result of a misapplication of sections 22 and 29.

•    The first respondent’s proposed decision and process contravenes the FW Act in that they constitute adverse action prohibited under s 340. The rights which the applicant has exercised include:

(a)    Making inquiries as to her probation on 17 November2022;

(b)     Making complaints and/or inquiries relating to the 13 December Letter and Department's proposed decision and process;

(c)    Seeking a review under the Agreement;

(d)     Seeking a review under the Act.

•    The applicant has concerns that the second respondent is acting belatedly and in a rushed manner to terminate the applicant’s employment because she wears a veil in accordance with her Muslim faith.

•    The consequences of termination of the applicant’s employment would be dire for her.

CONSIDERATION

3    The key questions requiring determination by the Court in relation to an application for interlocutory injunctive relief are whether:

    There is a serious question to be tried as to the applicant’s entitlement to relief;

    The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

    The balance of convenience favours the granting of an interlocutory injunction.

(Australian Broadcasting Corporation v O’ Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J)

4    The matter came before the Court for hearing as a duty matter at 5pm (AEST) on 21 December 2022 seeking urgent interlocutory relief on the basis that a decision was to be made in line with the second respondent’s representations by 2pm (AEST) 22 December 2022. As such, the matter proceeded to hearing with limited oral submissions. However, it is plain that the key issue before the Court is whether there is a serious question to be tried.

Serious question to be tried?

5    The applicant seeks a broad range of relief in the originating application. It is convenient to consider whether there is a serious question to be tried in respect of each form of relief, in turn.

6    First, the applicant seeks declarations that the first respondent has contravened s 340 and s 351 of the FW Act by the nominated conduct. Both ss 340 and 351 can be found in Part 3.1 of the FW Act which deals with General Protections. Section 340 provides:

Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).

7    “Workplace right” and “adverse action” are defined by s 341 and s 342 respectively.

8    Section 351 deals with discrimination, and provides:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti-discrimination law:

(aa) the Age Discrimination Act 2004;

(ab) the Disability Discrimination Act 1992;

(ac) the Racial Discrimination Act 1975;

(ad) the Sex Discrimination Act 1984 ;

(a) the Anti-Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(c) the Anti-Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti-Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti-Discrimination Act of the Northern Territory.

9    The evidence before the Court is minimal. I note however that it is not disputed by the respondents. I also note that, at this interlocutory stage, it is reasonable for the Court to accept evidence at a lower standard than might be required at a substantive hearing: Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294; [1978] FCA 27, Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 at [13], Bettles as trustee of the bankrupt estate of Bruce v Bruce [2021] FCA 1248 at [57].

10    However even noting the relative paucity of the evidence, I am not persuaded there is a serious question to be tried that adverse action was taken by the first respondent against the applicant because she had, or exercised, or proposed to exercise, a workplace right. Rather, such evidence as is before the Court strongly indicates that the respondents terminated the employment of the applicant because of a belief that she had not complied with the APS Code of Conduct, and had not been truthful in the information she had provided in the course of being interviewed by the first respondent. There is no evidence of substance which suggests that the first respondent terminated the applicant because she is a Muslim and wears a veil, or because she asked about permanent employment. Whether the first respondent, and the second respondent, were fair and reasonable in taking the approach they did in proposing to terminate the applicant’s employment is a different issue, but not one which is encompassed by ss 340 or 351.

11    Second, the applicant claims contravention of s 50 of the FW Act in respect of the Department of the Environment and Energy Enterprise Agreement 2016–2019 (Agreement) by its conduct in failing to comply with the Agreement in respect of the manner in which it proposed to terminate the applicant’s employment. Section 50 provides:

Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

12    Having heard the parties yesterday there appears to be some dispute over the application of the Agreement. I am prepared to accept, for present purposes, that the Agreement applies to the terms of employment of the applicant. Having regard to the Agreement I note that cl 7.2 provides that probation is generally six months, and that cl 7.3 provides that all employees covered by the Agreement are required to participate in the first respondent’s performance and development scheme which provides each employee with regular opportunities to discuss performance expectations. I also note that cl 7.4 allows a manager to initiate formal underperformance management procedures in appropriate circumstances, designed (inter alia) to ensure natural justice and procedural fairness. Clauses 7.51-7.53 provide for termination of non-ongoing employment.

13    In my view, based on the evidence before me, there is no serious question to be tried that any of these clauses have not been adhered to by the respondents.

14    I note however that cl 7.55 of the Agreement provides:

Nothing in this Agreement prevents the Delegate from terminating the employment of an employee for serious misconduct, without further notice or payment in lieu, in accordance with the FW Act, subject to compliance with the procedures established by the Secretary under section 15 of the PS Act for determining whether an employee has breached the Code of Conduct.

15    Section 15 of the Public Service Act 1999 (Cth) relevantly provides:

(2A) A person who is, or was, an APS employee is taken to have breached the Code of Conduct if the person is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have, before being engaged as an APS employee:

(a) knowingly provided false or misleading information to another APS employee, or to a person acting on behalf of the Commonwealth; or

(b) wilfully failed to disclose to another APS employee, or to a person acting on behalf of the Commonwealth, information that the person knew, or ought reasonably to have known, was relevant; or

(c) otherwise failed to behave honestly and with integrity;

in connection with the person's engagement as an APS employee.

…

(3) An Agency Head must establish written procedures in accordance with this section for determining:

(a) whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and

(b) the sanction (if any) that is to be imposed under subsection (1) on an APS employee in the Agency who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)).

(4) The procedures:

(a) must comply with basic procedural requirements set out in Commissioner's Directions; and

(b) must have due regard to procedural fairness.

16    Section 15 of the Public Service Act plainly contemplates the most egregious conduct by an employee, warranting summary dismissal. As I have already noted, the evidence is that the first respondent proposes to terminate the applicant for reasons associated with information she provided referable to her previous employment with another Commonwealth department and the circumstances in which she left that previous employment. There is evidence that the first respondent, through the second respondent, communicated with the applicant in relation to such concerns, and provided her with the opportunity to respond.

17    There is also evidence however that the applicant had informed the first respondent of the circumstances of her cessation of previous employment and that she had sought more information and more time from the first respondent to respond to their concerns.

18    On the basis of the evidence it is not clear to me that the processes of the first respondent in which it engaged in relation to the applicant have been in compliance with s 15 of the Public Service Act. This is notwithstanding the correspondence annexed to the affidavit of Mr Attia indicating the process in which the parties have participated. I also note that the process initiated by the respondents to terminate the applicant was six months after she had commenced working for the first respondent and apparently the day before she was due to take leave over the Christmas break. I consider that there is a serious question to be tried as to whether the Agreement has been contravened in respect of the processes required to be followed by the respondents.

19    I take a similar view in relation to the applicant’s claims of breach of the contract of employment referable to s 15 of the Public Service Act.

Injury and balance of convenience

20    The applicant has relied on evidence of her ill-health resulting from the conduct in question, and her financial position should her employment be terminated as proposed. In such circumstances I am satisfied that damages would not be an adequate remedy to the applicant.

21    I am also satisfied that the balance of convenience favours the granting of an interlocutory injunction. I have some concerns regarding the timing of the present events in light of the probationary period in her employment, and whether the effect of any orders in her favour would somehow compromise the position of the first respondent. The first respondent referred to the decision of Stone J in M v Commonwealth of Australia [2008] FCA 1992, where her Honour similarly considered an application for interlocutory relief brought by an employee terminated at the end of their probation period. I note that the case before her Honour was quite different to that before me, involving consideration of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and her Honour’s view of the compromise to the employer referable to the continuation in employment of the relevant employee. There is insufficient material before the Court to form a conclusion one way or the other on this point. However, I do note that the timing of the termination of the applicant was entirely in the hands of the first respondent. To the extent that the first respondent’s position could be prejudiced by an order in the terms sought by the applicant, I consider that this is a result of their own delay, and in any event would require more detailed material and submissions at trial.

22    The balance of convenience plainly favours the applicant.

CONCLUSION

23    On balance I am satisfied for the purposes of the present interlocutory application that the orders sought by the applicant should be granted. The proposed orders seek to bind both the first respondent, and the second respondent as decision-maker, which is appropriate in the circumstances. The matter should be remitted to the National Operations Registry for urgent allocation to a Judge of this Court in the ordinary course.

Associate:

Dated:    22 December 2022