Khiani v Australian Bureau of Statistics - [2010] FCA 1059 - FCA 2010 case summary — Zoe

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Khiani v Australian Bureau of Statistics

[2010] FCA 1059

Federal Court of Australia|2010-09-30|Before: Bennett J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2010-09-30

Before

Bennett J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Background Facts 20 On or around 16 May 2007, following the end of the 2006 Annual Performance Management Cycle, Ms Khiani was informed by Ms Moore, her then supervisor (but apparently, according to Ms Khiani, not her line manager), that her performance was less than effective. As a result, Stage One commenced. On 30 July 2007 Ms Khiani requested a review of action under s 33 of the Public Service Act 1999 (Cth) in relation to the decision to commence the Process. A report dated 20 August 2007 by Ms Phillips, the Director of the ABS Workplace Relations Section, concluded, inter alia, that Ms Khiani's supervisors were correct in their decision to commence Stage One. Ms O'Connor, as the Director of the ABS People Management and Support Section and Delegate of the Australian Statistician, decided that the Process would continue. 21 Stage One was suspended on separate occasions while Ms Khiani was absent from work and also on her return to work, to allow her time to refresh her memory in relation to the tasks she was required to undertake. Following the conclusion of Stage One, on or around 22 November 2007, Ms Mira Kwasik, Ms Khiani's then line manager, prepared a report in relation to her performance in Stage One. Ms Kwasik concluded that Ms Khiani had failed to achieve a satisfactory level of performance and recommended that Stage Two be initiated. 22 Ms Khiani received a formal warning letter on 29 November 2007 from Ms Kwasik, advising Ms Khiani that she was not satisfied that Ms Khiani had achieved an acceptable standard of work performance in a number of specified areas and that, as a result, an independent assessor would be appointed to review her work over a three month assessment period.

[2]

Does the use of "line manager" impose a restriction on the ABS? 23 Ms Khiani contends that no-one other than the person directly above her in seniority in the organisation, that is, her "line manager", was permitted to instruct her, engage with her, criticise her or otherwise take part in any of the steps in evaluating or acting upon any suggestion of her underperformance. 24 "Line manager"is not defined in the Act, the CA or the Guidelines. The meaning of the expression is guided by the context of its use and the ordinary meaning of the expression. Although the Macquarie Dictionary (rev 3rd ed, The Macquarie Library, 2001) does not contain a definition of "line manager", "line" is defined as 'something arranged along a line, especially a straight line; a row or series' and "manager" is defined as 'one charged with the management or direction of an institution, a business or the like'. In my view there is no reason to read "line manager" as restricted to the immediate line manager. The term should be construed as anyone in the managerial line between Ms Khiani and the Chief Statistician. In effect, "line manager" is a label that can be given to anyone in the direct line of report, that is, someone in the chain of command. 25 In everyday circumstances, the line manager may be the immediate supervisor of an employee but there is nothing in the Guidelines or the CA that limits the description of the line manager to the immediate supervisor. Practically, there may be occasions where, for example, the immediate line manager is absent or where it is appropriate that a person more senior in the line of management takes responsibility for implementing action, such as disciplinary action. 26 At the time that Ms Khiani's performance was rated unsatisfactory, the persons involved were Ms Moore and Ms Kwasik. Ms Kwasik was Ms Khiani's immediate line manager, while Ms Moore was both Ms Khiani's and Ms Kwasik's supervisor. It does not seem to be in dispute that each person who was relevantly involved in Ms Khiani's case prior to the termination of her employment, other than the independent assessor and the independent reviewer under the Guidelines, was in that line of authority. I accept that in the present case each step was taken by someone in that line of command. 27 The contention that only the person who, at each relevant time, held the position of Ms Khiani's immediate line manager was able to take any part in the assessment of and consequences of Ms Khiani's underperformance is central to Ms Khiani's submissions. It forms the basis of her contention that each and every action taken and each item of correspondence signed by other than her immediate line manager invalidated the procedure leading to her termination and was in breach of the CA. 28 That contention is not established.

[6]

Background Facts 35 The history of the matter is outlined in Ms Jones' affidavit as acting Assistant Statistician in the ABS Human Resources Branch. Ms Jones was delegated to manage the performance of ABS employees and to terminate the employment of any non-Senior Executive Service employees. The matters outlined by Ms Jones are relevant to an understanding of the issues raised by Ms Khiani. 36 Ms Khiani was advised by a letter dated 14 December 2007 from Ms Harrison, the Assistant Statistician and Delegate of the Australian Statistician, that Ms Harrison was satisfied that Stage Two could commence and that Ms Taylor had been appointed as the independent assessor. Stage Two did not immediately proceed as Ms Khiani was absent on personal leave from 18 December 2007 to 25 January 2008 and from 31 January 2008 until 3 September 2008. 37 On 22 October 2008 Ms Khiani sought a secondary review by the Merit Protection Commissioner of the decision to commence the Process. On 27 November 2008 Ms Khiani was advised that the decision to commence the Process was not reviewable. 38 On 13 January 2009 Ms Khiani requested that Ms O'Connor investigate the matter. Ms O'Connor responded to Ms Khiani's request by letter dated 20 January 2009, stating that a further review was not warranted and that Stage Two would commence on Ms Khiani's return from leave in February 2009. In that letter Ms O'Connor encouraged Ms Khiani to participate fully in Stage Two and to take the opportunity to demonstrate that she could attain a satisfactory level of performance. 39 From 22 January 2009 to 16 February 2009, Ms Khiani took three and a half weeks recreation leave. As the original independent assessor, Ms Taylor, was no longer available, on 3 March 2009 Ms Harrison advised Ms Khiani that Mr Gregory had been appointed as the independent assessor of her performance during the assessment period. Mr Gregory made attempts to conduct an initial meeting with Ms Khiani on three separate occasions between March and May 2009. Ms Khiani did not attend these meetings. Ms Jones says that Ms Khiani neither advised of her intention not to attend, nor arranged meetings with Mr Gregory on dates when she was available. 40 On 22 May 2009 Ms Bullock, from ABS People Management and Support, emailed Ms Khiani to advise her that Mr Gregory would invite Ms Khiani to a meeting to discuss the Stage Two process and the Action Plan and to give Ms Khiani an opportunity to raise queries or concerns. Ms Bullock told Ms Khiani that participation in the Process was not optional and that this was Ms Khiani's last chance to demonstrate her capability of attaining and sustaining the required work performance. 41 Ms Bullock subsequently emailed Ms Khiani a Revised Draft Action Plan for Stage Two and again invited her to a meeting with herself and Mr Gregory scheduled for 3 June 2010. Ms Bullock told Ms Khiani that at that meeting she would explain the process, roles and responsibilities and the possible outcomes as well as giving Ms Khiani the opportunity to raise any questions or queries with Mr Gregory regarding the Draft Action Plan. Ms Khiani did not attend the meeting. She did not advise that she was unavailable or seek to make an alternative time for the meeting. 42 Ms Khiani does not dispute the steps as set out in Ms Jones' affidavit.

[7]

Was Stage Two Followed? 43 Ms Khiani submits that the procedures for Stage Two were not followed because there were no meetings with the independent assessor. 44 In evidence at the hearing, Ms Khiani gave a number of reasons as to why she did not attend the meetings. For example, Ms Khiani says that on one of the days she was on carer's leave. Whatever her reasons, Ms Khiani did not ask for the meetings to be rescheduled. It is clear from Ms Khiani's evidence that she chose not to attend or to reschedule the meetings. Her refusal to attend or reschedule was, first, because she had formed the view that the Stage One procedure had not been properly complied with. Secondly, she misunderstood the purpose of Stage Two - Ms Khiani repeatedly said that she had thought that it meant that Stage Two 'was being placed upon her immediately'. Another possible explanation for Ms Khiani's failure to attend that arises from her evidence is that she thought that if she did not attend no further steps could be taken towards the termination of her employment. It is apparent from the evidence, including the correspondence, that the meetings were being arranged in order for the independent assessor to discuss with Ms Khiani the way in which the Process or Action Plan would be implemented, as required by the Guidelines. Ms Khiani was advised that unless she attended a meeting to discuss Stage Two, she would not be able to provide input on the identified work programme. Ms Khiani was clearly told in correspondence that the meeting was to discuss Stage Two and the Action Plan and to give her an opportunity to raise queries or concerns. She was also advised by Ms Bullock that participation in the Process was not optional and that the three month assessment period was her last chance to demonstrate her capability of attaining and sustaining the required work performance. In seeking to arrange a meeting for the purpose of Stage Two, the ABS participants took into account information from Ms Khiani's treating psychiatrist recommending that she be given a clear description of her duties and specific time to refresh her memory, as well as time to enact Stage Two. 45 It is hard to see what more ABS could have done to facilitate Ms Khiani's participation in the creation of the Stage Two Draft Action Plan. The fact that no mutually acceptable Action Plan was created was through no fault of ABS. It was due to Ms Khiani's deliberate actions not to allow the necessary liaison. She thereby rendered it impossible for the independent assessor to carry out the procedures for Stage Two. Ms Khiani cannot then rely on that impossibility to claim that ABS breached the Guidelines. 46 Ms Khiani further submits that the assessor was required only to explain the procedures of Stage Two. Clause 16 of the Guidelines provides that the independent assessor will liaise with the line manager and the employee to create a mutually acceptable Action Plan. The assessor also has an obligation to ensure that the employee understands the matters relating to the Action Plan. The assessor's role clearly extended beyond "only" explaining the Stage Two procedures.

[8]

Background Chronology 47 It is useful to consider further the chronology of events before and after the implementation of the Guidelines. 48 In May 2007 Ms Moore carried out an annual performance review for Ms Khiani following the end of the 2006Annual Performance Management Cycle. Ms Khiani's performance was rated as ineffective. On or around 16 May 2007, Stage One commenced. Ms Khiani took sick leave from 23 May to 15 June 2007 and from 18 June to 6 July 2007 and recreation leave from 11 to 20 July 2007. 49 Stage One ended on or around 22 November 2007. During the course of Stage One Ms Khiani took sick leave or carer's leave for approximately twenty days. Ms Khiani was issued with a formal warning on 29 November 2007 by Ms Kwasik. 50 Ms Khiani was first notified about Stage Two on 14 December 2007. In the period from 14 December 2007 to 3 September 2008 Ms Khiani was on leave, mainly sick leave, for various periods of time from one day to a period of nearly six months. From 3 September 2008 Ms Khiani's treating psychiatrist says that she was capable of returning for three days a week and then subsequently four days a week for two months. Ms Khiani returned to full time hours on 18 December 2008. 51 Ms Khiani's Merit Protection Commissioner Review Application occurred on 22 October 2008 and the decision was made on 27 November 2008. On 20 January 2009 Ms Khiani was advised that Stage Two would recommence. Ms Khiani was on recreation leave from 22 January 2009 to 16 February 2009. Mr Gregory made attempts to conduct an initial meeting with Ms Khiani on 17 March 2009, 25 March 2009 and 5 May 2009. Ms Bullock's further explanation to Ms Khiani concerning the requirement for a meeting occurred on 22 May 2009. 52 By letter dated 19 June 2009 Ms O'Connor advised Ms Khiani of her decision to cease Stage Two and to refer the matter to the delegate for a decision. 53 A report of Ms McLaughlin, which will be outlined below, was dated 27 June 2009. The preliminary decision occurred on 7 July 2009. Ms Khiani's response, as outlined below, occurred on 15 July 2009 and the final decision occurred on 21 July 2009. Attempts at conciliation or to settle the proceedings did not prove successful.

[11]

Final decision 57 Following Ms Khiani's response and prior to the final decision, Ms Jones states in her affidavit that she considered the Stage One Action Plan and the Draft Stage Two Action Plan. She formed the view that the tasks were appropriate and typical of the work that Ms Khiani would be expected to undertake and were tasks in which she had relevant experience and training. Ms Jones says that she gave consideration to the matters raised by Ms Khiani in respect of her allegations of bias and unfair treatment and formed the view that Ms Khiani continued to argue unreasonably about the merits of the Process rather than to participate in it. Ms Jones says that she was satisfied that the allegations of bias and unfair treatment lacked foundation. 58 Ms Jones states in her affidavit that in making the final decision she was satisfied that: (a) Ms Khiani had not attained and sustained the required level of performance for Stage One; (b) given Ms Khiani's lack of cooperation, refusal to undertake specific tasks and inability to follow directions or accept feedback, it was not practical for Ms Jones to reassign Ms Khiani to other duties at the APS5 level or to reduce Ms Khiani's classification or salary. 59 The final decision sets out Ms Jones' reasons by reference to her preliminary decision letter. She informed Ms Khiani in summary that she was satisfied that: (a) you have failed to achieve a satisfactory standard of performance as assessed by your line manager, Ms Kwasik, and documented in her report of 22 November 2007; (b) Ms O'Connor's decision to stop the stage 2 process was warranted as you had no intention to participate in the process which was your final opportunity to demonstrate your capability in attaining and sustaining the required level of performance; (c) the tasks given to you as set out in the Stage 1 Action Plan, and as drafted for the Stage 2 process, were appropriate at the APS5 level and typical of the work that you would be expected to undertake, and in which you have relevant experience and training; (d) your current performance, as assessed by Ms McLaughlin, in her report of 29 June 2009 confirms that there are continuing areas of concern regarding your performance and these concerns are consistent with those identified by Ms Kwasik; (e) it is not practical for me to reassign your duties at the APS5 level or to reduce your salary or classification given your lack of cooperation, your refusal to undertake specific tasks, and your inability to follow directions or accept feedback. 60 In the final decision, Ms Jones noted Ms Khiani's response to the preliminary decision and pointed out that while Ms Khiani advised that she did not consider the reasons for the preliminary decision sufficient to justify terminating her employment, Ms Khiani's submission contained no evidence or basis for her view. Ms Jones also referred to other matters raised by Ms Khiani including correspondence with Ms O'Connor and with other persons. Ms Jones expressed herself satisfied that Ms Khiani's issues had been considered and responses provided. In particular Ms Jones noted Ms Khiani's concerns about the tasks in the Stage Two Action Plan and pointed out that Ms Khiani had had every opportunity to discuss and agree on the tasks to be undertaken during Stage Two but failed to attend any meeting with the independent assessor.

Parties

Applicant/Plaintiff:

Khiani

Respondent/Defendant:

Australian Bureau of Statistics

Legislation Cited (3)

Fair Work Act 2009(Cth)

Public Service Act 1999(Cth)

Workplace Relations Act 1996(Cth)

Cases Cited (1)

What does Ms Khiani need to prove under the Act? 8 Ms Khiani attacks the "fairness" of the final decision and alleges that Ms Jones was biased and failed to take into account relevant considerations. However, as was the case under the Workplace Relations Act 1996 (Cth), Ms Khiani's general protections application does not require the Court to determine whether the termination of her employment was fair and/or reasonable (Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at [38]-[39]). Pursuant to s 340(1)(a) of the Act, the question for the Court is whether the termination of Ms Khiani's employment occurred because she: (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. 9 The meaning of "workplace right" is set out in s 341 of the Act. Relevantly, it provides: (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: (a) a conference conducted or hearing held by FWA; (b) court proceedings under a workplace law or workplace instrument; (c) protected industrial action; (d) a protected action ballot; (e) making, varying or terminating an enterprise agreement; (f) appointing, or terminating the appointment of, a bargaining representative; (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement; (h) agreeing to cash out paid annual leave or paid personal/carer's leave; (i) making a request under Division 4 of Part 22 (which deals with requests for flexible working arrangements); (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. 10 Ms Khiani does not expressly identify any "workplace right" as the alleged reason for the events that are the subject of the application.