Consideration
31 For the following reasons, I conclude that given there is a factual dispute with respect to one aspect of the applicant's claim, this is not an appropriate matter for which summary judgment should be ordered in the respondent's favour.
32 However, I am of the view that, save for the applicant's unpleaded claim under s 29(1) regarding the alleged absence of power on the part of Ms Roebeck to terminate the applicant's employment, all other claims made by the applicant do not disclose a reasonable cause of action and should be struck out. The applicant will be given leave to re-plead on this issue only.
33 Paragraphs [4]-[28] of the applicant's amended statement of claim sets out his brief employment history. The applicant claims to be aggrieved by the fact of him only being able to work three days "for nearly one month" (at [9]), that he was "deliberately and systematically denied" the opportunity of "crucial training" (at [10] and [13]) which he then had to do in his own time (at [14]), was not given an access pass (at [11]), suffered delays in the approval of his timesheet (at [12]), was required to share a desktop computer and workstation undermining NSW health orders in relation to the COVID-19 virus (which he refused) (at [16]) and about which he alleges discrimination because of his "constitutional right to be respected and to be treated equally like other team members" (at [17]) (this comprises the incident referred to in Ms Roebeck's email notifying him of the termination of his employment), that Ms Roebeck's accusation of him raising his voice was "pure fabrication and defamatory … racist, sexist and ageist" (at [18] and [19]), his termination was "pre orchestrated by Ms Castillo and Ms Roebeck" and "should have not been terminated at the drop of a hat - summary dismissal - with no verbal or written warning - more importantly without some procedural fairness" (at [22]) and where he was "unfairly and unlawfully terminated": at [24].
34 As can be seen from the foregoing, there is little cohesion between the pleaded factual history (at [3]-[28]) and the articulated causes of action (at [29]-[31]) of the amended statement of claim. Unfortunately, it appears that the applicant's true grievance appears to be the alleged unfairness of the termination of his employment, a claim which could be brought under the FW Act before the Fair Work Commission but for which this Court has no jurisdiction.
35 I accept that in considering an application under s 31A the Court must consider not only the pleadings but all the material before it. The applicant at hearing articulated two additional claims, arising under s 29(1) of the PS Act, which was not set out in his amended statement of claim, namely: (a) the absence of power on the part of Ms Roebeck to terminate his employment; and, (b) s 29(1) required that the applicant be given notice in writing in advance of the termination of his employment.
36 The applicant, by reason of what is stated at [33] of his amended statement of claim and as the applicant stated expressly at hearing, no longer presses his various claims under the Federal anti-discrimination legislation or under the FW Act as set out in his (unamended) originating application.
37 Taking each of the applicant's PS Act claims in turn, the mere reference to sections under a Commonwealth law is insufficient to invoke the jurisdiction of this Court under s 39B(1A)(c) of the Judiciary Act. In any event, even if the Court accepts it has jurisdiction to deal with claims arising from the exercise of powers under the PS Act (which it does), the applicant has failed to articulate in his pleading any basis for these claims.
38 Section 15 concerns the specific procedures that arise where an APS employee "is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have breached the Code of Conduct": s 15(1).
39 Section 15(3) concerns the establishment of general procedures (which do not constitute legislative instruments): s 15(8). Section 15(4) requires that any such procedures must comply with the basic procedural requirements set out in the Australian Public Service Commissioner's Directions and must have due regard to procedural fairness.
40 The applicant contended at hearing that by operation of s 15(4), the respondent must "have due regard to procedural fairness" and the alleged "denial" he suffered was that his employment could not be terminated "at a drop of a hat" because the recruitment process took more than three months. The applicant went on to submit that the Court has "inherent jurisdiction in terms of the law of equity" regardless of the PS Act and his claim "should be heard based upon the common law, the valour of equity, because [his] job [was] terminated unfairly and without a procedure".
41 There are a number of difficulties with respect to the applicant's claims under s 15. The contemplated procedures arise where there has been a "finding" of a breach of the Code of Conduct. There is nothing in the applicant's pleading or the material relied upon by the applicant or the respondent that suggests there was such a "finding" of the kind identified in s 15(1) which would then give rise to any adherence to the procedures contemplated under the section (noting they do not have legislative force: s 15(8)). The PS Act does not restrict an agency to terminating an employee's employment only where there is a "finding" of a breach of the Code. Furthermore, the applicant has not pleaded nor articulated at hearing how by s 15(3) or 15(4) there could be any cause of action for breach.
42 Section 41B concerns inquiries that the Australian Public Service Commissioner may conduct into alleged breaches of the Code. Section 50A concerns an inquiry that may be undertaken by the Merit Protection Commissioner. Again, the applicant does not plead or allege that it was asserted by the respondent that he had breached the Code. Further, there is no allegation, pleaded claim nor any material to indicate that there was any "inquiry" conducted by either Commissioner. Accordingly, the claims are misconceived.
43 The applicant also submitted at hearing (but does not plead) that his termination was in breach of s 29(1) of the PS Act on the basis that he was not given "written notice" required under s 29(1) which should be construed to constitute as notice in writing in advance of the termination. Section 29(1) is extracted at [29] of these reasons. There is nothing in the terms of the sub-section that requires that the notice must be made in advance of the termination. Section 29(1) states that such notice may be given "at any time". There is no proscription at all in the section as to the amount of notice required. This is unsurprising because the FW Act makes provision regarding the same. Indeed, s 29(1) contains two Notes, the first of which states that "The Fair Work Act 2009 has rules and entitlements that apply to termination of employment". Section 117 of the FW Act proscribes the amount of notice required on termination. An employee is only entitled to "notice" if employed for at least a period of continuous service. However, a casual employee does not accrue "continuous service" and therefore is not entitled to notice: at s 117(4). It appears misconceived, in the face of the clear language of s 29(1) and the operation of the FW Act, to argue that the section entitled a public sector employee to an undefined amount of notice for which they would not otherwise be so entitled. The applicant was provided with "notice in writing" by email dated 6 December 2021 as extracted at [9] above.
44 To the extent that the applicant submits that there is a basis to hear "applications for judicial review of decisions by officers of the Commonwealth to issue writ [sic] of mandamus either to reinstate [his] employment if practicable or to make orders to [his] claims" there are no such prayers of relief pleaded nor any basis identified as to why or how with respect to the claim of "reinstate[ment]" it could be made.
45 The applicant's claim for relief is with respect to compensation for "lost and expected [earnings] from 06 December 2021 to 29 September 2022", compensation "as per the relevant Common Law of the Commonwealth of Australia for [his] psychological and mental suffering" in the sum of "$450,000". The applicant has pleaded no basis as to how he could be so entitled to any damages arising from the PS Claims.
46 The only part of the applicant's claim, albeit, unpleaded, about which I have some reservation (from the perspective of whether it is susceptible to an application for summary judgment) is the applicant's claim regarding the absence of power on the part of Ms Roebeck to terminate his employment.
47 The respondent adduced at hearing evidence from Ms Roebeck that she was acting on instruction from Mr Taylor who held the appropriate delegation. To make good this submission, the respondent relied on Ms Roebeck's evidence and also on s 78 of the PS Act which allows for an agency head to delegate his or her powers relating to the termination of employment. It provides:
78 Delegations
…
(7) An Agency Head may, in writing, delegate to another person any of the Agency Head's powers or functions under this Act (other than this section).
48 In this context, the respondent also relied upon the Instrument of Delegation signed by the respondent on 29 September 2021 which states:
I, TOM ROGERS, Electoral Commissioner, in exercise of the powers conferred on me by:
• Section 78 of the Public Service Act 1999,
• Regulation 9.3 of the Public Service Regulations 1999,
• Part 7, Section 52 of the Australian Public Service Commissioner's Directions 2016,
• Rule 13 of the Public Service Classification Rules 2000,
• Section 9 of the Long Service Leave (Commonwealth Employees) Act 1976,
• Section 11 of the Maternity Leave (Commonwealth Employees) Act 1973,
• Section 41A of the Safety, Rehabilitation and Compensation Act 1988, and
• Clause 6 of the Australian Electoral Commission Enterprise Agreement 2016-2019
…
2. DELEGATE to the persons from time to time holding, occupying or performing the duties of the positions appearing in Column 2A (general AEC staff) and Column 28 (staff within the AEC's People and Property Branch) of the Schedule to this instrument, those functions and/or powers appearing in Column 1 of the Schedule, as indicated.
(Emphasis in original).
49 The Schedule to the Instrument of Delegation further provided under the heading "Description of function / power", with the corresponding statutory provision being s 29(1) of the PS Act, that a delegate may:
Terminate, by notice in writing and at any time, the employment of a non-ongoing APS employee (engaged pursuant to ss 22(1) and 22(2) (b)) or an irregular or intermittent employee (engaged pursuant to ss 22(1) and 22(2) (c)).
50 Whilst the respondent may very well succeed at trial, my reservation arises because the applicant disputes the evidence relied upon by the respondent, on the bases identified at [10] above. Where there is a live factual dispute between the parties, it is not appropriate for a matter to be susceptible to summary judgment. I also note the applicant had not pleaded this claim at all. I acknowledge the respondent's submission as to the accuracy of Ms Roebeck's evidence. Ultimately, it may be accepted entirely at final hearing. But here it is disputed by the applicant as a matter of fact. Whilst I say nothing ultimately with respect to the merits of the claim, about which the applicant will have significant difficulty in establishing if both Ms Roebeck and Mr Taylor give evidence on this issue, nevertheless, I am bound to grant the applicant liberty in the circumstances to re-plead this portion of his claim only.
51 Accordingly, I accept the respondent has proven that all of the applicant's claims disclose no reasonable cause of action and must be struck out, save for the claim articulated in the preceding paragraph.
52 It necessarily follows that the applicant's interlocutory application should be dismissed. I have found that the respondent's interlocutory application is made out save in one respect in relation to an unpleaded claim by the applicant and I do not consider that the respondent's application constitutes an "abuse of process".