Khiani v Australian Bureau of Statistics [2010] FCA 1059

FEDERAL COURT OF AUSTRALIA

Khiani v Australian Bureau of Statistics [2010] FCA 1059

Citation: Khiani v Australian Bureau of Statistics [2010] FCA 1059

Parties: ANITA KHIANI v AUSTRALIAN BUREAU OF STATISTICS

File number: ACD 53 of 2009

Judge: BENNETT J

Date of judgment: 30 September 2010

Catchwords: INDUSTRIAL LAW – Applicant subject to ABS Certified Agreement, ABS Performance Management Scheme and ABS Managing Underperformance Guidelines – General protections claim under Fair Work Act 2009 (Cth) – whether reference to "line manager" required all contact with applicant to be limited to immediate supervisor – whether proper procedures under Managing Underperformance Guidelines complied with – whether termination of applicant's employment while on sick leave contravenes s 352 of the Act – whether applicant entitled to new performance agreement when underperforming

Words & Phrases: 'line manager'

Legislation: Fair Work Act 2009 (Cth); ss 340, 341, 352

Cases cited: Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 cited

Date of hearing: 28 July 2010

Place: Canberra

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 77

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms C Dowsett

Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

FAIR WORK DIVISION ACD 53 of 2009

BETWEEN: ANITA KHIANI

Applicant

AND: AUSTRALIAN BUREAU OF STATISTICS

Respondent

JUDGE: BENNETT J

DATE OF ORDER: 30 SEPTEMBER 2010

WHERE MADE: SYDNEY (BY VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1. The application be dismissed. 2. Costs be reserved. 3. The ABS notify the Court and Ms Khiani of its position on costs by 7 October 2010.

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

FAIR WORK DIVISION ACD 53 of 2009

BETWEEN: ANITA KHIANI

Applicant

AND: AUSTRALIAN BUREAU OF STATISTICS

Respondent

JUDGE: BENNETT J

DATE: 30 SEPTEMBER 2010

PLACE: SYDNEY (BY VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT 1 Ms Khiani seeks orders in connection with her employment in the Australian Bureau of Statistics (ABS). Ms Khiani commenced employment at the ABS in July 1986. Her employment was terminated on 21 July 2009. 2 The proceedings commenced by application in which Ms Khiani sought an interim injunction and reinstatement. She seeks orders that she be reinstated in the position in which she was employed immediately before the dismissal or that she be appointed to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal. At the hearing Ms Khiani made it clear that she also seeks all necessary retraining to enable her to fulfil that position.

THE APPLICATION UNDER THE FAIR WORK ACT

Ms Khiani's Complaints 3 Ms Khiani filed a claim under the Fair Work Act 2009 (Cth) (the Act) alleging dismissal in contravention of general protections afforded under Part 3-1 of the Act. She listed the general protections that she claimed had been contravened as: 1. workplace right to be on sick leave; 2. exercised or not exercised workplace right; 3. 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. 4 The sections of the Act that are said by Ms Khiani to be relevant to her claim are s 371, ss 391(1)(a) and (b), s 562, s 563(d), s 539(2), ss 340(1)(a)(i) and (ii); s 341(1) and s 342(1). Some of these sections, such as ss 539(2) and s 342(1) are, on their face, inapposite. 5 In her affidavit, in summary, Ms Khiani raises the following issues: · 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".

What can be considered under the Act? 6 Part 3-1 of the Act came into effect on 1 July 2009. The Act does not have retrospective application. The Workplace Relations Act 1996 (Cth) continues to have effect in respect of conduct covered by Part 3-1 of the Act that occurred prior to 1 July 2009. 7 In her application Ms Khiani complains about a series of events in the workplace, commencing with the outcome of a performance discussion in May 2007 and culminating in the termination of her employment on 21 July 2009. The only events described in Ms Khiani's application which occurred after 1 July 2009 were a preliminary decision by Ms Jones dated 7 July 2009 to terminate Ms Khiani's employment (preliminary decision) and Ms Jones' final decision to terminate Ms Khiani's employment dated 21 July 2009 (final decision). Accordingly, it is only these events that can be the subject of consideration by the Court in the context of the current application.

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.

The issues for determination 11 Ms Khiani referred in her affidavit, her submissions and during the hearing to a number of different sections of the Act that have allegedly been contravened. Many of these alleged contraventions were not explained at the hearing. However, the issues and matters generally the subject of Ms Khiani's submissions related to a number of the alleged contraventions. 12 The major issues that arise are: · 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.

LINE MANAGER

Operation of the ABS Certified Agreement, ABS Performance Management Scheme and the Management Underperformance Guidelines 13 During the period from 2007 to 2009, the procedures for managing the performance of ABS employees was authorised by the ABS Certified Agreement (the CA). The CA states that the procedures for managing performance are set out in the ABS Performance Management Scheme (the Scheme). The Scheme established the Management Underperformance Guidelines (the Guidelines). 14 The CA, the Scheme and the Guidelines set out certain procedures involving an employee and his or her "line manager", a term that is not defined. 15 At the beginning of the Annual Performance Management Cycle on 1 April of each year, an employee and his or her line manager establish a performance agreement setting out individual work responsibilities. Where the line manager forms the view that an employee's work performance is less than effective and the conditions set out in clause 12 of the Guidelines have been met, the line manager informs the employee of the decision and commences the Managing Underperformance Process (the Process) by implementing Stage One of the Process (Stage One). The Guidelines provide that this involves the line manager and the employee creating an Action Plan which sets out clear expectations in relation to work performance. The line manager is required to document notes of all work performance and feedback discussions and provide these to the employee, who has the opportunity to provide comments. 16 If an employee's performance does not meet the required standard during Stage One, the next stage of the Process, Stage Two, is initiated (Stage Two). This involves the employee being issued with a formal warning letter setting out the required standards and how the employee has failed to meet those standards. An independent assessor is appointed who is responsible for assessing the employee's performance against an Action Plan which is created following consultation between the employee, the line manager and the independent assessor.

Use of "Line Manager" in the CA and the Guidelines 17 The CA provides in relation to the Scheme: 26. All line managers are responsible and accountable for the effective operation of the Scheme including driving improvements in individual and team performance and addressing any identified performance which does not meet expectations. 299. Framework: [The Scheme],combined with regular constructive feedback about work performance, provides the framework for managing performance in the ABS. Performance agreements set out individual work responsibilities and provide the basis for discussing work performance. While appraisal operates on an annual cycle with mid-cycle reviews of performance, a discussion of work performance may be initiated at any time by a line manager or an employee. [emphasis added] 18 The Guidelines provide, relevantly: 3 These guidelines expand on the framework set out in clauses 298 to 306 of the [CA]. 4 …These [Guidelines] are to be followed only when all attempts under [the Scheme] have failed to improve work performance and the line manager has advised the employee in writing that their work performance is less than effective. 5 These procedures apply to all ongoing ABS employees except those on probation… 12 Before a line manager can fairly form the opinion that an employee's work performance is less than effective, the following conditions must be met: a. a performance agreement is in place…; b. the employee has had all appropriate and relevant training and the opportunity to integrate it into their work; c. regular and appropriate feedback on performance has been provided, in line with the good practice principles of [the Guidelines]; d. appropriate records have been kept and copies have been provided to the employee eg records of discussion, journal notes, emails, notification of the consequence of work performance not improving. 13 Where these conditions have been met and the line manager has notified the employee that their work performance is less than effective, Stage 1 of these procedures must be commenced immediately. 15 Stage 1: Line Manager assessment a. Action Plan: The line manager and the employee will create an Action Plan… b. Record keeping: The line manager is required to document brief notes of all work performance and feedback discussions and provide these to the employee, who has an opportunity to provide comments… 16 Stage 2: Independent Assessment a. Formal Warning: The line manager issues a written Formal Warning letter to the employee… c. Line Manager: The line manager maintains a managerial role which includes providing constructive feedback on tasks, however he or she will not assess work performance. d. Action Plan: The assessor will liaise with the line manager and the employee to create a mutually acceptable Action Plan. [emphasis added] 19 Ms Khiani relies on the CA, the Scheme and the Guidelines as, together, setting out the relevant framework.

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.

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.

ALLEGED IMPROPER PROCEDURES IN FOllowing the GUIDELINES

Stage One: Line Manager Assessment 29 Stage One involves an assessment of the employee by the line manager, as stated above. Ms Khiani has not pointed to any defect in Stage One other than her assertion that only her immediate line manager can participate. That contention is rejected for the reasons set out above.

Stage Two: Independent Assessment 30 If work performance does not reach the required standard after Stage One, Stage Two is instigated. Clause 16 of the Guidelines sets out the procedure for Stage Two. It provides that, after the line manager issues a written formal warning letter to the employee, an independent assessor is appointed. 31 The role of the line manager is made clear at clause 16(c): Line Manager: The line manager maintains a managerial role which includes providing constructive feedback on tasks, however he or she will not assess work performance. 32 The Guidelines then provide in clause 16(d): Action Plan: The assessor will liaise with the line manager and the employee to create a mutually acceptable Action Plan. The Action Plan is used as the basis for assessing work performance over the three month assessment period and is developed considering whether there needs to be some weighting of performance in different aspects or elements of the employee's work. The Action Plan includes: (i) any weightings; (ii) the schedule for feedback with the assessor; and (iii) due dates for progress reports. 33 The Guidelines provide that the assessor must ensure that the employee understands certain matters in relation to the Action Plan and that the employee is provided with every opportunity to comment on the assessor's feedback and progress reports. 34 At the end of Stage Two, the independent assessor prepares a final report in relation to the employee's performance. Under clause 19 of the Guidelines, if the independent assessor decides that the employee has failed to attain and sustain the expected standard of work performance, the final report is sent to a delegate who determines whether to terminate the employment.

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.

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.

ALLEGED IMPROPRIETY IN MS JONES' DECISION

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.

Background to Ms Jones' decisions 54 After the matter was referred to Ms Jones to determine the outcome to be implemented in relation to the Guidelines, Ms Jones requested a work report from Ms McLaughlin. Ms McLaughlin was involved in the day-to-day supervision of Ms Khiani and was, in Ms Jones' opinion, in a good position to provide an overview of Ms Khiani's performance. Ms McLaughlin reported that Ms Khiani had not demonstrated, in the period from December 2008 to June 2009, that she was able to attain and sustain a satisfactory level of performance at the APS5 level.

Preliminary decision 55 When Ms Jones notified Ms Khiani of her preliminary decision she set out the reasons for the preliminary decision which included: · on the basis of Ms Kwasik's report Ms Jones formed the view that Ms Khiani had failed to attain a required standard of performance during Stage One; · on the basis of Ms O'Connor's report and Ms Khiani's failure to attend the meetings, Ms Jones concluded that Ms Khiani had been given every opportunity to participate in Stage Two. She concurred with Ms O'Connor's decision that Ms Khiani had no intention to participate in Stage Two and that the Process should cease; · on considering inter alia Ms Khiani's treating psychiatrist's report Ms Jones formed the view that Ms Khiani's health issues were not currently preventing her participation in the Process; · on the basis of Ms McLaughlin's report Ms Jones formed the view that Ms Khiani's unsatisfactory performance had continued despite formal warning; · on the basis of Ms McLaughlin's and Ms Kwasik's reports Ms Jones formed the view that Ms Khiani had failed to accept the feedback provided and had taken insufficient steps to address her underperformance; · Ms Jones formed the view that the areas of underperformance were specific requirements of any position within ABS and that moving Ms Khiani to a different position or a lower classification were not practical options. 56 Ms Jones gave Ms Khiani the opportunity to comment on the preliminary decision. Ms Khiani responded raising issues about the suitability of tasks that had been assigned during Stage One and the tasks proposed in the Stage Two Action Plan. She also made various allegations of bias against her supervisors.

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.

The reasons for the preliminary decision and the final decision 61 Ms Khiani was on long service leave when the preliminary decision was made and on sick leave when the final decision was made. 62 Ms Jones states in her affidavit that she did not recall whether at the time that she made the final decision she was aware that Ms Khiani was absent on personal leave without pay and other leave in lieu of personal leave. She says that Ms Khiani's entitlement to take personal leave or other leave was not a reason for her decision. 63 The history of the matter, as detailed in the preliminary decision and the final decision, satisfies me that the operative reasons for Ms Jones' decisions were as stated and that they related to Ms Khiani's failure to reach the required level of performance and her failure to participate in Stage Two and not in any way to her leave. I accept the ABS' submission that: ABS attempted to engage Mrs Khiani in a process that would allow her to demonstrate that she could attain and sustain the required level of work performance. ABS was concerned about Mrs Khiani's work performance and was endeavouring to assist her to demonstrate that she could bring her level of performance up to the required standards. ABS' conduct in allowing the underperformance management process to extend over a period of more than 2 years is not consistent with a claim that Mrs Khiani's employment was terminated because she had a "workplace right" to accrue and use personal leave credits. Similarly, there is no evidence that Mrs Khiani's employment was terminated because she in fact exercised her workplace right to personal leave, nor is there any evidence to support a reasonable inference that this was a reason of the termination decision. 64 Ms Khiani has not established that the adverse action against her was taken because of a workplace right.

Other matters raised during the hearing

Was the termination of Ms Khiani's employment unlawful because she was on sick leave at the time of the termination? 65 Ms Khiani says that the fact that the final decision occurred while she was on sick leave is contrary to s 352 of the Act which provides: Temporary absence—illness or injury 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. 66 If the relevant workplace right is the benefit provided in s 352, Ms Khiani's application could be understood as a complaint that her employment was terminated while she was temporarily absent from work with a prescribed illness or injury. An examination of Ms Khiani's history and Ms Jones' preliminary decision and final decision reveals that Ms Khiani's entitlement to leave and the fact that she was on leave played no part in the decisions. 67 Notably, s 352 does not provide protection by way of precluding the dismissal of an employee at a time when they are temporarily absent from work because of illness or injury or other leave. If an employee may be validly dismissed it is not to the point that the employee happens to be on leave when that decision is made. 68 Ms Khiani also seeks protection under ss 340(1)(a)(i) and (ii) of the Act on the basis of her workplace rights. ABS submits that if the relevant "workplace right" is the right to accrue and use personal leave credits, Ms Khiani's application would be understood as a complaint that her employment was terminated because she had the right to accrue and use personal leave credits or because she in fact exercised that right. There is no basis for such a conclusion.

The lack of a performance agreement 69 Ms Khiani contends that she was entitled to a new performance agreement and that the failure to provide one after the completion of the previous performance agreement, that is, at the end of the 2006 Annual Performance Management Cycle, was a breach of the CA. 70 Ms Khiani says, and I accept, that it was the evaluation and review in 2007 of Ms Khiani's performance under her previous performance agreement that led to the implementation of the Guidelines. However, ABS submits that where it is determined that an employee is underperforming, the Guidelines take the place of a performance agreement. Clause 4 of the Guidelines provides that they should be read in conjunction with the Performance Management Scheme Guidelines and that the Guidelines are 'only to be followed when all attempts under [the Scheme] have failed to improve work performances and the line manager has advised the employee in writing that their work performance is less than effective'. This means that, when applicable, the Guidelines are clearly intended to be followed in place of, or prior to, entering into a new performance agreement. 71 Ms Khiani has not established that the implementation of the Guidelines rather than a new performance agreement was a breach of the CA or the Act.

Should Ms Jones' preliminary decision and final decision have been based on Ms Jones' own knowledge? 72 Ms Khiani submits that Ms Jones' preliminary decision and final decision were defective, in that they relied on information provided to Ms Jones and not on Ms Jones' own knowledge. 73 Clause 19 of the Guidelines provides that the independent assessor's report is to be sent to the delegate together with all documentation and any comments the employee has made throughout the Process. The delegate then makes a determination based upon his or her satisfaction with the determination of the independent assessor. It follows that in making the decision, the delegate must base that decision upon information provided. To do so does not render the decision defective.

Was the time frame for Stage One appropriate? 74 Ms Khiani submits that a further procedure necessary prior to the decision being made, other than as outlined earlier in these reasons, was not followed. She says that for Stage One ABS gave her three months more than the required minimum of eight weeks. Ms Khiani submits that the giving of this longer time did not take into account her stress in having that extended period apply. She contends that the giving of any time longer than eight weeks for Stage One breached the CA. 75 As is noted in the above chronology, Ms Khiani was on sick leave for part of the period during which Stage One applied. Apart from the fact that there is no evidence of any extra stress that was caused by the extended time, I do not see that the provision of that extended time was anything other than reasonable in the circumstances. 76 I do not accept that the provision of extra time afforded to Ms Khiani was a breach of the CA.

CONCLUSION 77 I am not satisfied that Ms Khiani has established a workplace right within the meaning of s 341 of the Act such that the ABS has contravened s 340. Ms Khiani has not established any other contravention of the Act by the ABS. It follows that Ms Khiani's application should be dismissed. It is not clear from the ABS' submissions that it seeks costs. Accordingly, I will give the ABS seven days in which to notify the Court and Ms Khiani of its position on costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 30 September 2010