Khiani v Australian Bureau of Statistics

Federal Court of Australia (Full Court)|2011-08-24|Before: Reeves JJ

The nature and history of the proceeding 1 This appeal raises questions as to the scope of a proceeding of the kind designated as a general protections application, pursuant to Pt 3-1 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The appellant was dismissed from her long-term employment with the respondent. The reason given for her dismissal was her failure to achieve the required level of performance of her duties. The appellant's terms and conditions of employment were determined in part by a collective agreement relating to employees of the respondent, the Australian Bureau of Statistics Certified Agreement 2006-2009 ("the ABS Certified Agreement). Under the terms of the ABS Certified Agreement, termination of employment was to occur only after a two-stage process for reviewing the employee's performance. The appellant was found to have under-performed at the first stage. The respondent made several attempts to implement the second stage, by reaching agreement with the appellant as to how the review at that stage should be conducted, as required by the ABS Certified Agreement. The second stage was not completed because the appellant did not cooperate in its implementation by attending meetings that were arranged for the purpose. 2 Both at first instance and on appeal, the appellant raised a number of issues about the process leading to her dismissal. She alleged failure to comply with the requirements of the termination process, failure to follow correct procedures and (on appeal) the inability of the respondent to apply the process at all, because of the expiry of the ABS Certified Agreement, or to take into account any event that had occurred prior to the coming into operation of the Fair Work Act. She alleged that she was on long service leave when the first decision under the termination process was made and on sick leave when the final decision to give her an opportunity to respond to a proposal for her dismissal. The appellant's focus throughout was on challenging the process that led to her dismissal, rather than on the reason or reasons for that dismissal. 3 The appeal is from the judgment of a single judge of the Court, given on 30 September 2010 and published as Khiani v Australian Bureau of Statistics [2010] FCA 1059. The learned primary judge dismissed the appellant's application and reserved costs, with a direction that the respondent notify the Court and the appellant of its position on costs by 7 October 2010. It does not appear that any order for costs was ever made.

The general protections provisions 4 The provisions of Pt 3-1 of the Fair Work Act relevant to this case are as follows. 5 Section 340(1) of the Fair Work Act provides: 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 The term "workplace right" is defined in s 341(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. The term "adverse action" is defined in the table set out in s 342(1). By item 1 of that table, adverse action is taken by an employer against an employee if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 6 Section 352 of the Fair Work Act provides: An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. 7 Section 360 of the Fair Work Act provides: For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 8 Section 361 provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 9 Section 365 of the Fair Work Act provides: If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to FWA for FWA to deal with the dispute. Section 12 contains a definition of "Fair Work Australia or FWA". The reference is to the institution established by s 575, consisting of the President, Deputy Presidents, Commissioners and minimum wage panel members. Section 368 requires that FWA conduct a conference to deal with the dispute if an application is made under s 365. By s 369, if FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect. Finally, s 371(1) of the Fair Work Act provides: A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) FWA has issued a certificate under section 369 in relation to the dispute; or (b) the general protections court application includes an application for an interim injunction.

The appellant's application to the Court 10 The appellant's original application to the Court was amended more than once. In its final form, filed on 8 April 2010, the application sought two forms of relief, an interim injunction and reinstatement. By way of interlocutory relief, the appellant sought to be reinstated in the position in which she was employed immediately before the dismissal or to be appointed to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal, and the maintenance of the continuity of her employment. In making that claim, the appellant echoed the terms of s 391, which relates to an order for reinstatement that may be made by FWA after a successful claim for unfair dismissal, dealt with by FWA under Pt 3-2 of the Fair Work Act. 11 In her further amended application, the appellant referred to a number of provisions of the Fair Work Act, including those already set out above, s 391 and other provisions relating to the conferral of jurisdiction on this Court and the manner of exercise of it. These last-mentioned provisions are not in dispute. 12 In response to a request in the form of application to "Describe each general protection that the employee claims has been contravened", the appellant said: (i) Workplace right to be on sick leave. (ii) Exercised or not exercised workplace right. (iii) Employer has taken adverse action against an employee by (a) has injured the employee in her employment by workplace stress due to underperformance action imposed and employment terminated. (b) has altered the position of the employee to the employee's prejudice by imposing underperformance action. (c) has discriminated between the employee and other employees of the employer. In another part of the form, the appellant added a claim for compensation to her claim. She attached a certificate issued by FWA under s 369 of the Fair Work Act.

The primary judge's reasons for judgment 13 At [5] of her reasons for judgment, the primary judge summarised the issues raised by the appellant in her affidavit evidence: • Ms Khiani's employment was terminated while she was on sick leave; • bias on the part of Ms Jones, the ABS delegate who made the decision to terminate her employment; • Ms Khiani's performance was above the required standard and there was no evidence that she was underperforming; • the underperformance action implemented by the ABS was not in accordance with the ABS procedure for managing underperformance; • a review Ms Khiani requested under s 33 of the Public Service Act 1999 (Cth) was flawed; • the underperformance action taken by the ABS imposed an unrealistic workload and unachievable tasks on Ms Khiani that she had not previously performed; • Ms Khiani was subjected to workplace stress because of the imposition of the underperformance action; • Ms Khiani was not given appropriate time to carry out the tasks in the underperformance process and the tasks she was given were inappropriate in a way that discriminated against her; • the report on which Ms Jones based her decision was written by the ABS Acting Director instead of Ms Khiani's line manager; • a final review was not written by Ms Khiani's line manager, despite that line manager having occupied this position for the period of nine months; and • generally, steps were taken in relation to Ms Khiani's employment by other than her "line manager". 14 At [6], her Honour said that Pt 3-1 of the Fair Work Act came into effect on 1 July 2009 and does not have retrospective application. Earlier provisions in the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act"), similar to those found in Pt 3-1 of the Fair Work Act, continue to have effect in relation to events that occurred prior to 1 July 2009. At [7], her Honour pointed out that the appellant complained about a series of events, commencing with the outcome of a performance discussion in May 2007 and culminating in the termination of the appellant's employment on 21 July 2009. Of those events, the only ones that occurred after 1 July 2009 were a preliminary decision on 7 July 2009 to terminate the appellant's employment and a final decision on 21 July 2009 to terminate her employment. At [8], the primary judge made it clear that she was not able to deal with the issue of the fairness of the decision to terminate the appellant's employment, allegations of bias against the decision-maker or allegations that the decision-maker failed to take into account relevant considerations. 15 At [12] of her reasons for judgment, the primary judge identified what she said were the major issues: • whether the decision of Ms Jones was invalidated because all relevant contact with Ms Khiani was required to be limited to her line manager, meaning her immediate supervisor; • whether the decision of Ms Jones was otherwise invalidated by reason of the procedures that preceded it; and • whether Ms Khiani's employment was terminated because of the leave she had taken. 16 At [13]-[28], her Honour dealt with the first of these issues. She found that the ABS Certified Agreement authorised procedures for managing the performance of the respondent's employees. The relevant procedures were set out in the ABS Performance Management Scheme, which established the Management Underperformance Guidelines. The reference to "line manager" appeared in each of these documents. Stage 1 of the guidelines involved a line manager and the employee creating an action plan, setting out expectations in relation to work performance. If the employee's performance did not meet the required standard during Stage 1, Stage 2 involved a formal warning letter setting out the required standards and stating how the employee had failed to meet those standards. An independent assessor was then appointed to assess the employee's performance against an action plan, created following consultation between the employee, the line manager and the independent assessor. 17 The primary judge set out the progress of Stage 1 from 16 May 2007. This involved an unsuccessful attempt by the appellant to request a review under the Public Service Act 1999 (Cth) ("the Public Service Act") of the decision to commence the process. It also included several suspensions of Stage 1 while the appellant was absent from work and, following her return to work, to allow her to refresh her memory in relation to the tasks she was required to undertake. At the end of Stage 1, the appellant's line manager prepared a report concluding that the appellant had failed to achieve a satisfactory level of performance and recommending that Stage 2 be initiated. A formal warning letter was sent. 18 The primary judge dealt with the appellant's contention that nobody other than her line manager was permitted to take any part in the assessment of her performance, and that another person had been involved. The primary judge rejected that contention. That conclusion is not challenged in this appeal. 19 At [29]-[46], the primary judge dealt with procedural irregularities in relation to the guidelines. Her Honour described the process taken in relation to Stage 2. The appellant sought review by the Merit Protection Commissioner of the decision to commence the process. She was advised that the decision was not reviewable by that means. On three separate occasions between March and May 2009, Mr Gregory, who had been appointed as the independent assessor, attempted to conduct an initial meeting with the appellant to discuss the Stage 2 process and the action plan. The appellant did not attend these meetings. She did not advise of her intention not to attend, or attempt to arrange meetings with Mr Gregory at other times when she was available. The appellant was advised that participation in the process was not optional and that she was being given her last chance to demonstrate her capacity to attain and sustain the required work performance. She was supplied with a revised draft action plan and again invited to attend a meeting with Ms Bullock and Mr Gregory, scheduled for 3 June 2010. She was told of the purpose of this meeting, which was to explain to the appellant the process, the roles and responsibilities and the possible outcomes, and to give the appellant an opportunity to raise any questions regarding the draft action plan. The appellant did not attend the meeting. She did not advise that she was unavailable or seek to make an alternative time. 20 The primary judge found that the Stage 2 process was not followed. The appellant gave a number of explanations for her failure to attend the meetings. The primary judge found that it was hard to see what more the respondent could have done to facilitate the appellant's participation in the creation of the draft action plan. The fact that no action plan was created was not the fault of the respondent. It was due to the appellant's deliberate action in not allowing the necessary liaison. The appellant rendered it impossible for the independent assessor to carry out the procedures for Stage 2. Her Honour held that the appellant could not rely on that impossibility to claim that the respondent was in breach of the guidelines. 21 At [47]-[64], the primary judge dealt with the appellant's claims of impropriety in relation to the preliminary decision and the final decision of Ms Jones, who made the decisions that led to the termination of the appellant's employment. 22 Before Ms Jones made the preliminary decision of 7 July 2009, she sought a report from Ms McLaughlin, who was involved in the day-to-day supervision of the appellant, about the appellant's performance. Ms McLaughlin reported that, in the period from December 2008 to June 2009, the appellant had not demonstrated that she was able to attain and sustain a satisfactory level of performance. 23 Ms Jones notified the appellant of her preliminary decision, with detailed reasons for it, and invited the appellant to respond. The appellant responded, raising issues about the suitability of tasks that had been assigned during Stage 1 and tasks proposed in the draft Stage 2 action plan. She also made various allegations of bias against her supervisors. 24 Ms Jones then considered the nature of the tasks required in Stage 1, and in the draft Stage 2 action plan, and formed the view that they were appropriate and typical of the work that the appellant would be expected to undertake and for which she had relevant experience and training. Ms Jones gave consideration to the matters raised by the appellant in relation to bias and unfair treatment, and formed the view that the appellant continued to argue unreasonably about the merits of the process rather than to participate in it. Ms Jones was satisfied that the allegations of bias and unfair treatment lacked foundation. She was satisfied that the appellant had not attained and sustained the required level of performance for Stage 1. Given the appellant's lack of cooperation, it was not practical for Ms Jones to reassign the appellant to other duties or to reduce her classification or salary. The final decision also included detailed reasons. 25 When the preliminary decision was made, the appellant was on long service leave. When the final decision was made, the appellant was on sick leave. The primary judge accepted evidence of Ms Jones that the entitlement to take leave was not a reason for either decision. Her Honour was satisfied that the reasons for the decisions of Ms Jones were those stated by Ms Jones, relating to the appellant's failure to reach the required level of performance and her failure to participate in Stage 2. The reasons were not in any way related to the appellant's leave. Her Honour accepted that the respondent attempted to engage the appellant in a process that would allow her to demonstrate that she could attain and sustain the required level of performance. The fact that the process was allowed to extend over more than two years was not consistent with the claim that the appellant's employment was terminated because she had a workplace right in relation to leave. The primary judge found that the appellant had not established that the adverse action against her was taken because of a workplace right. 26 The primary judge then set out at [65]-[76] what she described as other matters raised during the hearing. The first was whether the fact that the appellant was on sick leave when the final decision was made gave rise to a contravention of s 352 of the Fair Work Act. Her Honour found that entitlement to leave and the fact that she was on leave played no part in the decisions. Her Honour pointed out that s 352 does not preclude the dismissal of an employee while the employee is temporarily absent from work because of illness or injury. If the employee may be dismissed validly, it is not to the point that the decision to dismiss happens to be made while the employee is on leave. Her Honour also rejected a contention that the appellant had been dismissed because of a workplace right, namely the right to accrue and use leave credits. 27 The primary judge also rejected a contention of the appellant that she was entitled to a new performance agreement at the end of the 2006 annual performance management cycle, that it was a breach of the collective agreement not to have a new performance agreement, and that such a performance agreement should have been applied instead of the guidelines. Her Honour also rejected the appellant's contentions that Ms Jones was required to have personal knowledge of the matters on which her preliminary decision and final decision were made. Her Honour rejected a contention that the provision of extra time to the appellant in relation to Stage 1 imposed extra stress and was a breach of the collective agreement.

The grounds of appeal 28 There are three grounds of appeal in the appellant's notice of appeal. They are as follows: 1. Error in finding the facts at paragraph 61 in the judgment of 30 September 2010 where Justice Bennett J overlooked appellant applicant's [sic] medical certificate for approved sick leave from 06 July 2009 to 30 September 2009, which was in evidence (see annexure 'c2' to paragraph 4 of applicant appellant's [sic] affidavit of 01 April 2010) which is document of evidence of appellant applicant's [sic] workplace right being denied by being asked by respondent's delegate to respond to the letter dated 07 July 2010 in seven days. 2. Error in finding the facts by Justice Bennett J where respondent's delegate has clearly stated in her affidavit of 29 June 2010 at paragraph 3 that the power given to her was under performance agreement 2006 to 2009 where this performance agreement ended on 30 June 3009 [sic] however the action has been taken by delegate on 07 July 2009 to issue the letter of preliminary decision and terminate applicant appellant's employment on 21 July 2009 both actions are therefore unlawful where the start and end periods in certified agreements was explained to Justice Bennett at the hearing of 28 July 2010. 3. Error of law where Justice Bennett J has given no consideration that all documents in evidence by respondent for taking action to terminate appellant applicant's [sic] employment are prior to 01 July 2009, when the Fair Work Act 2009 did not exist. Hence notice of employment termination issued on 07 July 2009 and termination of employment due to underperformance on 21 July 2009 (see judgment paragraph 7) BOTH THESE ACTIONS ARE UNLAWFUL AS THEY ARE BASED ON THE EVENTS PRIOR TO 01 JULY 2009. (Original Emphasis)

Ground 1 - Sick leave 29 In her written submissions, the appellant summarised the issue she sought to raise under the first ground of appeal as follows: Respondent employer has used undue influence of its power to deny appellant employee of workplace right to be on approved leave in asking to respond in seven days to its preliminary decision notice dated 07 July 2009 to terminate employment while appellant employee was on approved leave. 30 The appellant pointed to evidence that she was on approved leave when the decision to dismiss her was made. She said that she had complied with all the procedures in the ABS Certified Agreement, but that the respondent had required her to respond in seven days to the preliminary decision. She cited authority concerning the doctrine of undue influence. She said that this requirement deprived her of the right to be on leave. She said that the primary judge should have found that she had a workplace right to be on leave and that the respondent had misused its power in asking her to respond in seven days while she was on that leave. 31 These submissions demonstrate the failure of the appellant to understand the nature of Pt 3-1 of the Fair Work Act. A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right. 32 The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. In the present case, the appellant's further amended application identified injury in her employment "by workplace stress due to underperformance action imposed and employment terminated"; alteration of the appellant's position to her prejudice "by imposing underperformance action"; and discrimination between the appellant and other employees of the respondent, the nature of which was not explained by means of particulars or otherwise. To the extent to which the appellant raised allegations of adverse action prior to 1 July 2009, including the decision to review her performance and the actions taken in respect of that review, the primary judge was correct to say that it was not open to the appellant to allege adverse action, because the Fair Work Act is not retrospective in its application. The appellant could have amended her claim to rely on the provisions of the Workplace Relations Act that continue to operate in respect of conduct prior to 1 July 2009, if she wished to contend that what was done in relation to her performance review prior to that date was adverse action. She did not do so. Accordingly, as the primary judge said, it was only the preliminary decision and the final decision to terminate the appellant's employment to which the appellant could point as adverse action. 33 To the extent to which the appellant attempted to claim on appeal that the requirement to respond within seven days to the preliminary decision amounted to the taking of adverse action, there is a question whether she was attempting to make a case she had not made before the primary judge. Although, at one point when she was addressing the primary judge during the trial, the appellant said that she was asked to respond to the preliminary decision while she was on sick leave and that she had responded, stating that she was on sick leave, she did not appear to be raising this issue as an aspect of adverse action. Her complaint was that Ms Jones did not give any consideration to the fact that she was on sick leave. If the appellant were intending to raise this form of adverse action by that submission, she was doing so in final addresses, after Ms Jones had given evidence. An attempt to raise the issue on appeal has the effect of depriving the respondent of the opportunity to call evidence specifically in relation to it. As the respondent carried the onus of proving, on the balance of probabilities, of the absence of a causal connection between adverse action and a right to take, or the taking of, sick leave, pursuant to s 361(1) of the Fair Work Act (with the exception of the interim injunction claim, which does not appear to have been pursued in any event), the appellant ought not to be permitted to raise a new claim of adverse action on appeal. 34 The question therefore is whether the adverse action to which the preliminary decision and the final decision to terminate the appellant's employment amounted was taken because the appellant had a right to sick leave or had exercised it. The same question arises in relation to sick leave as a workplace right, pursuant to s 340(1), or because of the direct ban on dismissal during temporary absence from work because of illness or injury, pursuant to s 352 of the Fair Work Act. In each case, the respondent was required to prove that neither the preliminary decision nor the final decision was taken because the appellant was on sick leave. 35 The primary judge accepted that the written reasons for the preliminary decision, and for the final decision, were the operative reasons for those decisions. The reasons for making those decisions did not include the fact that the appellant was on sick leave. 36 At [64] of her reasons for judgment, the primary judge said that the appellant had "not established that the adverse action against her was taken because of a workplace right." That conclusion involved a misstatement of the incidence of the onus of proof. Pursuant to s 361 of the Fair Work Act, the onus of proof as to causation fell on the respondent. Despite this error, it is clear from what was said earlier in her Honour's reasons for judgment that the respondent had discharged its onus in relation to both the preliminary decision and the final decision. The primary judge accepted the evidence of Ms Jones as to what her reasons were. She did so in the context of the circumstances of the case, which would have made the opposite conclusion remarkable. The fact that there was a temporal connection between the adverse action and the taking of leave by the appellant did not require the conclusion that there was a causal connection. In circumstances in which the preliminary decision and the final decision were the culmination of a long process of attempting to review the performance of the appellant, in which she failed to achieve a satisfactory level of performance and otherwise frustrated the conduct of the process, makes it abundantly clear that the respondent was not simply taking advantage of the fact that the appellant was on leave in order to dismiss her. 37 The appellant's first ground of appeal cannot succeed.

Ground 2 - The expiry of the ABS Certified Agreement 38 In her written submissions, the appellant summarised the issue under the second ground of appeal as follows: Respondent employer's delegate did not have power during the transitional period before new workplace agreement 2009-2011 came into effect, the power given to the delegate to terminate appellant employee's employment was under certified agreement 2006-2009 which ended by 30 June 2009, however the delegate issued notice dated 07 July 2009 of preliminary decision to terminate appellant's employment and final decision letter dated 21 July 2009 both of the adverse actions of the delegate are therefore unlawful. 39 There is both a simple and a complex answer to this contention. The simple answer is that, even if all steps that were taken by the respondent leading to the termination of the appellant's employment, including the preliminary decision and the final decision, lacked validity because they had no lawful authority derived from any statute or other statutory instrument, this invalidity would not itself establish the requisite causal connection between adverse action and the existence, or exercise, of a workplace right. There are other provisions of the Fair Work Act under which it would have been open to the appellant to allege contraventions of the collective agreement. Other consequences, including the imposition of penalties and the payment of any underpaid entitlements, might have flowed from the making of an application based on those provisions. A general protections application, however, requires that there be adverse action taken because of a specific characteristic of the person against whom the action has been taken, or a specific act of that person. Proving invalidity of the acts that amounted to the adverse action does not itself establish the existence of the causal link. In the present case, the causal link required for a general protections application did not exist. 40 The complex answer depends on legislative provisions. The ABS Certified Agreement was made pursuant to provisions found in Div 2 of Pt VIB of the Workplace Relations Act, which were then applicable. It was certified by the Australian Industrial Relations Commission on 8 March 2006, pursuant to s 170LT of the Workplace Relations Act, which was found in Div 4 of Pt VIB. In the decision to certify the ABS Certified Agreement, Commissioner Deegan recorded that it would come into force from 8 March 2006 and remain in force until 8 March 2009. At that time, s 170LX(1) of the Workplace Relations Act provided that a certified agreement came into operation when it was certified and, subject to the other provisions of s 170LX, would remain in operation at all times afterwards. Section 170LX(2) provided that an agreement would cease to be in operation if two conditions were met, namely that the nominal expiry date of the agreement had passed, and the agreement was replaced by another certified agreement. 41 On 27 March 2006, amendments to the Workplace Relations Act came into operation as a result of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("the Work Choices Act".) Provisions inserted into the Workplace Relations Act, in Sch 7, provided for transitional arrangements for existing certified agreements. Item 2(1)(f) of Sch 7 provided that s 170LX(1) continued to apply in relation to a pre-reform certified agreement. Item 3(1) of Sch 7 provided: A pre-reform certified agreement ceases to be in operation in relation to an employee if a collective agreement or workplace determination comes into operation in relation to that employee. This provision had the effect of modifying the operation of the conditions in s 170LX(2). The expression "pre-reform certified agreement" was defined in item 1 of Sch 7 to mean: an agreement that: (a) was made under Division 2 or 3 of Part VIB of this Act before the reform commencement; and (b) was certified under Division 4 of Part VIB of this Act The "reform commencement" was defined in s 4(1) of the Workplace Relations Act to mean the commencement of Sch 1 to the Work Choices Act. That date was 27 March 2006. By means of these provisions, the ABS Certified Agreement continued in force after the coming into operation of the amendments that resulted from the Work Choices Act. 42 Finally, on the coming into operation of the Fair Work Act on 1 July 2009, further continuing effect was given to the ABS Certified Agreement by item 2 of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Transitional Act"), by means of the following provisions: 2(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) and (4)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal. (2) Each of the following instruments is a WR Act instrument: … (g) a pre-reform certified agreement; … (3) The following WR Act instruments become transitional instruments on the WR Act repeal day: (a) each WR Act instrument that was in operation immediately before the WR Act repeal day Item 2 of Sch 2 to the Transitional Act defines "WR Act repeal day" to mean the day on which the WR Act repeal commences, and "WR Act repeal" as the commencement of Sch 1 to the Transitional Act. By virtue of item 2(1) of Sch 1 to the Transitional Act, Sch 1 came into operation on 1 July 2009. Item 4(1)(a) of Sch 2 to the Transitional Act provides that expressions used in a transitional Schedule that were defined in the Workplace Relations Act (other than in Sch 1 to the Workplace Relations Act) have the same meanings in the transitional Schedule as they had in the Workplace Relations Act. Item 1 of Sch 2 to the Transitional Act designates Sch 2 as one of the "transitional Schedules". It follows that the expression "pre-reform certified agreement" in item 2(g) of Sch 3 of the Transitional Act continues to have the meaning given to it by item 1 of Sch 7 to the Workplace Relations Act (see [41] above). This combination of provisions was effective to continue in force the ABS Certified Agreement after 1 July 2009, up to and including the termination of the appellant's employment. 43 Whatever actions were taken by the respondent against the appellant in relation to the review of her performance, including the preliminary decision and the final decision as to the termination of her employment, were valid to the extent that they depended upon the continued existence of the ABS Certified Agreement. The decision to terminate employment may also have derived statutory authority from the power to terminate employment found in s 29(1) of the Public Service Act, delegated by the Agency Head of the respondent to Ms Jones, pursuant to s 78(7), but it is unnecessary to determine that issue. 44 The appellant's second ground of appeal must fail.

The third ground of appeal 45 The appellant's summary of her contention in relation to the third ground of appeal, in her written submissions, is: 1. Respondent employer's reason 'unsatisfactory performance of duties' for terminating appellant employee's employment is invalid as appellant applicant's [sic] performance has not been tested on or after 01 July 2009 and respondent employer has relied on events prior to 01 July 2009 and has not defended its adverse action under Transitional Provisional Consequential Amendments 2009 ACT (TPCA Act 2009) the reason for terminating appellant's employment is invalid under Fair Work Act 2009. 2. Appellant employee's employment was terminated on 21 July 2009 and has therefore correctly made general protection application under Fair Work Act 2009 which came into effect from 01 July 2009. 46 This contention illustrates again the appellant's failure to understand the nature of Pt 3-1 of the Fair Work Act. The power of the respondent to terminate the appellant's employment was not derived from Pt 3-1 of the Fair Work Act. That power was derived either from the ABS Certified Agreement, to which other provisions of the Fair Work Act and the earlier legislation referred to in [40]-[42] above gave force and effect, or from the Public Service Act. Part 3-1 of the Fair Work Act operated only to constrain the exercise of that power, to the extent that the exercise amounted to adverse action and a causal relationship existed between that adverse action and one of the factors referred to in the provisions of Pt 3-1. The change in legislation that involved the repeal of the Workplace Relations Act and its substitution by the Fair Work Act did not have the result that any process that might lead to a termination of employment, commenced under the earlier legislation, had to be recommenced when the Fair Work Act came into operation. At each stage of legislative amendment or substitution, transitional provisions were enacted to ensure the continuing effect of an agreement like the ABS Certified Agreement. 47 Even if the appellant's contention were to be accepted, and the preliminary decision and the final decision to terminate her employment were required to be viewed as separated completely from the process of performance review that had gone before, this would still not establish the necessary causal link for the purposes of Pt 3-1 of the Fair Work Act. Once again, the fact that steps were taken without lawful authority does not establish that they were taken because of one of the factors to which the provisions of Pt 3-1 refer. In this case, even if the decisions to terminate the employment of the appellant were without lawful authority, that conclusion itself would not establish that her employment was terminated because she had a right to take sick leave and had exercised that right. 48 The appellant's third ground of appeal must fail.

Conclusion 49 All of the appellant's grounds of appeal have been rejected. She has established no basis on which the judgment of the primary judge should be overturned. The appeal must be dismissed.

Costs 50 Counsel for the respondent sought an order for costs of the appeal. Section 570 of the Fair Work Act provides: (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before FWA; (ii) the matter arose from the same facts as the proceedings. 51 The submission on behalf of the respondent was based on the proposition that the appeal was instituted without reasonable cause. Counsel for the respondent invoked what was said by Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264-265, cited in Re Ross; Ex parte Crozier [2001] FCA 1665 (2001) 111 IR 282 at [9]: [O]ne way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. The authorities are summarised in Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [27]-[30] per Reeves J. 52 It is true that the appellant has failed in her appeal. This does not of itself establish that she instituted the appeal without reasonable cause. In passing up the opportunity to seek costs from the primary judge, the respondent appears to have conceded that the appellant's case was arguable at that point. If that were the case, it is hard to see how the appellant's case became unarguable on appeal. Although the grounds she argued demonstrated her lack of understanding of the operation of Pt 3-1 of the Fair Work Act, the appellant did have in her favour the primary judge's error as to the onus of proof on the causation issue. Although the appellant has failed on that issue, it might be said to have afforded her an arguable case on appeal. In the circumstances, the better view is that s 570(1) of the Fair Work Act operates to deprive the Court of the normal power to award costs in favour of the successful respondent. 53 There can be no order as to the costs of the appeal. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justices Gray, Cowdroy & Reeves.

Workplace Relations Act 1996(Cth)ss 4(1), 170LT, 170LX, 170LX(1), 170LX(2), Item

Workplace Relations Amendment (Work Choices) Act 2005(Cth)

Fair Work Act 2009(Cth)ss 12, 340(1), 341(1), 342(1), 352, 360, 361, 361(1), 365, 368, 369, 371(1), 391, 570(1), 575

Public Service Act 1999(Cth)ss 29(1), 78(7)

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Judgment (10 paragraphs)

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Legislation Cited (5)

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