Kang v Attorney-Generala**s Department

[2008] FMCA 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANG v ATTORNEY-GENERAL’S DEPARTMENT [2008] FMCA 638

INDUSTRIAL LAW – Termination of employment – unfair dismissal – provision concerning a probationary period of employment – probation report noted performance as unsatisfactory.

Workplace Relations Act 1996 (Cth)

Claveria v Pilkington Australia Limited [2007] FCA 1692

He, in the matter of an application for Writs of Mandamus and Certiorari or constitutional relief against Lewin [2004] FCAFC 161
Robertson v South [2000] FCA 1402
Zhang v The Royal Australian Chemical Institute Inc. [2005] FCAFC 99
Zhang v The Royal Australian Chemical Institute Inc. [2006] HCATrans 227
Zhang v The Royal Australian Chemical Institute Inc. supra

Applicant: LILI KANG

Respondent: ATTORNEY-GENERAL’S DEPARTMENT

File number: MLG 736 of 2007

Judgment of: Burnett FM

Hearing dates: 12, 13 and 14 December 2007

Date of last submission: 14 December 2007

Delivered at: Brisbane

Delivered on: 29 May 2008

REPRESENTATION

The Applicant appeared on her own behalf

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

MLG 736 of 2007

LILI KANG

Applicant

And

ATTORNEY-GENERAL’S DEPARTMENT

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Lili Kang in her application seeks orders for reinstatement to her former position of employment as an APS6 employee of the Attorney-General’s Department. She claims that she was unlawfully dismissed within the meaning provided in section 559(2)(a) and/or (e) of the Workplace Relations Act. 

2. At the trial Ms Kang resiled from the relief claimed in her application and informed the Court that she now sought orders for compensation and an apology.

Background

1. By letter dated 10 August 2006 Ms Kang was offered a position as a senior budgets officer, APS Level 6, Job No. 9143 within the Financial Management Branch of the Financial Services Group in the Attorney-General’s Department.  The offer was subject to terms and conditions which in particular included a provision concerning a probationary period of employment.  The offer provided,

   “Your ongoing employment with this Department will be contingent on the satisfactory completion of a six month probation period.  During this time your conduct and work performance will be assessed to determine whether they meet the standards required by this department of its employees --- If, during your probationary period of employment, your work performance or conduct are not considered satisfactory your employment will be subject to termination”.

2. Ms Kang commenced employment with the Department on 4 September 2006.  She initially underwent a period of training from 4 September to 20 September.  On 21 September she departed for an overseas holiday returning on 3 October.  Upon return from her holiday there were further compulsory training sessions and it appears that some time shortly following this time she commenced her duties.

3. Ms Kang was assigned to the External Budget Team which was led by Mark McKnight.  The External Budget Team was part of the Budgets and Financial Reporting Section which was managed by Ms Tarnya Gersbach.

4. During the first three months of her employment Ms Kang was provided with work assigned to the APS6 role consistent with her duty statement.  In addition she was provided with educational material to enable her to understand her role as well as instructions and supporting documents for the tasks allocated.  In particular her tasks included special appropriation draw downs, review of budgeted financial statements and Departmental derivations.  In addition to those tasks there were also some specialist one off tasks such as a task involving the drafting of a procedures manual for special appropriation draw downs.   Generally speaking however most of the tasks required to be performed by Ms Kang were technical accounting tasks and not writing tasks.

5. By December 2006 Ms Kang was due for her first probationary employment assessment.  In the lead up to this period Ms Kang felt that she had settled in well and was beginning to feel relaxed in her employment.  She considered at that time that she was doing some simple and small tasks and felt she was being underemployed.  For instance at a Financial Service Group workshop organised for 23 November she raised with Ms Gersbach her concerns that she was not feeling challenged enough about what she was doing and that she was not very busy.  She says that Ms Gersbach responded “I will look at this issue and make sure you have jobs to do”.  Although in evidence Ms Gersbach does not recall having made that statement she accepted that she could have made a statement along those lines had the matter been raised with her in the manner in which Ms Kang says it was. 

6. On 27 November 2006 Ms Kang says that she had a meeting with Mr McKnight, her immediate manager about an “annual performance agreement”.   That activity was a job for which Ms Kang was to be responsible.  She says that at the time she received negative feedback from Mr McKnight about her work performance. 

7. On the afternoon of 15 December 2006 at about 3.30pm Ms Kang was called into the office of Ms Gersbach, the Section Leader.  Ms Gersbach announced that the meeting was about “your probation”. During that meeting they spoke for a few minutes about her employment performance.  In particular she recalls two matters being emphasised, they being:

   a)Ms Gersbach could not write anything in Ms Kang’s probation report because Ms Kang had not been given an opportunity to demonstrate her skill level;

   b)The prospect of Ms Kang swapping positions with Ms Quin;  Ms Gersbach sought to and did persuade Ms Kang to swap positions with a Finance Officer (Ms Herong Quin).

8. Further Ms Kang says that at the conclusion of the meeting Ms Gersbach said that the probation period would be extended by a further three months to in effect provide for a nine month probation.  The fact that a meeting occurred is not an issue.  Some issues arose concerning events at that meeting as will be explored below.

9. In any event following the meeting Ms Kang was particularly despondent.  She says that she did not anticipate the meeting was a meeting called to discuss her probation and that she was clearly disappointed by the matters discussed at the meeting and in particular the prospect of undertaking the work of an APS Level 5 when she was an APS Level 6.

10. Ms Kang says that she returned to Ms Gersbach’s office later that afternoon between 4.30pm and 5.30pm to follow up on the earlier meeting.  She says she enquired as to why Ms Gersbach could not prepare her three month probation report and enquired as to whether she had done something wrong.  She says Ms Gersbach responded by informing her it was not anything to do with her but rather that Ms Kang had not been given an opportunity to do the work for which she was engaged and that it would not be favourable for Ms Gersbach to put any adverse comment in her probationary report.  I infer from the evidence that Ms Gersbach was seeking to be fair to Ms Kang.

11. So much was apparent from the evidence of Ms Gersbach who said that she did not rate Ms Kang during the performance review in respect of two criteria namely “Analytical Skills and Sound Judgment” and “Ability to Achieve Results”. She stated she did not want to give Ms Kang an unsatisfactory rating in respect of those criteria on the basis that at that time she could not determine whether it was the work provided to her or her ability that was unsatisfactory. The clear inference was that she had not formed a view either way and she did not wish to be unfair to Ms Kang by prematurely making a decision on the matter.

12. Accordingly at that time Ms Kang’s probationary employment report simply left blank the first two criteria although in February 2007 they were each marked as unsatisfactory following advice to Ms Gersbach from the Department’s Human Resources Section which had indicated to her that ratings were required.

13. It is apparent that Ms Kang did not take well to the report.  On Monday 18 December 2006 Ms Kang emailed the Human Resources Manager, Ross Butler indicating that she had “an issue” with her probation process and felt that she was “a victim of the politics”.  It is worth noting that the meeting with Ms Gersbach occurred late on the preceding Friday and that this email was written at 10.08am on the following Monday.  No doubt Ms Kang had stewed over the events over the course of the weekend.  Indeed so much was apparent from an email sent by Ms Kang to her immediate supervisor Mr McKnight on Tuesday 19 December where she wrote,

    “I have been very sad, emotion, (sic) stressed, and angry about being unfairly, unprofessional, treated at work in this branch in AGs since last Friday.”

14. Ms Gersbach observed that at work Ms Kang was sullen and would not speak with staff and that when she walked about the office it was with her “head down”. 

15. On 19 December Ms Gersbach requested Ms Kang attend her office.  Ms Gersbach wished to discuss with Ms Kang her reaction to the performance review and in particular wanted to find out what had upset Ms Kang because Ms Gersbach believed that she had been quite fair in her dealings to that time.  Ms Kang says that at the meeting she addressed four points of concern being,

    a)her non-invitation to external budget meetings;

    b)the level of work she would be performing in Ms Quin’s role;

    c)issues concerning Ms Munroe the assisting APS Level 5; and

    d)the probation report itself.

16. Whilst Ms Gersbach herself cannot recall the specific questions she broadly acknowledged the conversation occurred along those lines.  In my view nothing turns upon those matters.

17. In any event it was apparent that following that conversation Ms Kang was satisfied with the outcome of that meeting because she subsequently sent an email to Mr Butler withdrawing her request for an appointment noting that the “problem was solved”. 

18. The Christmas stand down subsequently intervened.  Ms Kang returned to work after Christmas on 3 January 2007. Upon her return to work there was an email awaiting her which had been sent by Ms Gersbach on Sunday 24 December. Ms Gersbach had set a series of tasks for Ms Kang to attend to upon her return to work on 3 January because Ms Gersbach was not returning to work until 8 January. In her email she made the observation that “people at work this week are only here because they have deliverables.  Please stay focussed on work – not too much chatter”. Ms Kang says that she was insulted by the remark and considered that what had happened before Christmas was not over. In cross examination of Ms Gersbach it transpired that a fellow employee, Dianne Gallimore had made complaints to Ms Gersbach about Ms Kang interrupting her. It was with this in mind that she made the observations contained in the email. (The observation was prefaced upon the self evident fact that people in the office that week were only there because of the need to produce deliverables, i.e. product or reports which were required within a set timeframe. Accordingly there was a presumption that they would want to get the task done in preference to being distracted by the usual office routine because these duties were being undertaken at a time when they would otherwise prefer to be on leave).

19. Ms Kang felt that there was some favouritism demonstrated to Ms Gallimore. She expressed the view that Ms Gallimore was a friend of Ms Gersbach’s who was favoured with work at a level equal to hers despite the fact that Ms Gallimore did not hold a Bachelor’s degree. In any event Ms Kang also complained that her performance of the duties set was frustrated because she was unable to access the CMVS system.[1]

    [1] The CMVS was the Department’s IT computer system.

20. On 8 January 2007 Ms Gersbach returned to work and it appears from that time took a more direct supervisory role of Ms Kang. Ms Kang said that during that time she did not have any problems working with Ms Gersbach and that Ms Gersbach appeared patient when dealing with her. She said that she considered that she picked up the work very quickly and that she felt Ms Gersbach was happy with her work. Her only compliant was that she felt that she was not involved in the work for which she was employed which was a “Senior Budget Officer” at an APS6 level.[2]

    [2] This had always been a matter of anxiety for Ms Kang particularly as she was concerned to ensure that she was employed at the appropriate level because she did not want to suffer a diminution of income – see notes of her conversation with Ms Gersbach 15 December 2006.

21. The next series of significant events commenced in early February.  On 2 February Ms Kang received an email from Ms Gersbach concerning work on the portfolio budget submission tables.  It was the first time Ms Kang had been involved in such a task and she had no experience in the preparation process.  An added source of anxiety was that the task deadline was 12 February.  At this time Ms Kang was sick with a bad cough but despite that says she worked at her best and worked late to meet the deadlines.  She complained however that Ms Gersbach kept changing the tasks’ requirements which caused her confusion about her understanding of tasks’ requirements.  Each change of the guidelines she said required a change to the data which had to be assembled. 

22. At about this time Ms Kang received an invitation from Ms Gersbach to present for her six month probation assessment.  The meeting was organised for 2.00pm on 14 February.  At that time Ms Kang says that she was feeling particularly poorly and suffering from a bad cough.

23. At the meeting Ms Kang provided a self assessment informing Ms Gersbach that the only weakness she considered she had that concerned her was her English writing skills but that she believed that otherwise she had good communication skills.  She told her that she was satisfied that she had been involved in more work and had been busier.  Ms Kang said that Ms Gersbach said that she (being Ms Gersbach) did not think that Ms Kang demonstrated that she was comfortable with her work or that she had sufficient experience in the government framework.  Ms Kang says that she had no problems with the work.  She complained that Ms Gersbach had never questioned her work and that from her observation she otherwise generally appeared to be happy with it.  When Ms Kang called for an example in support of Ms Gersbach’s position, Ms Gersbach raised the issue of the lapsing measure report requirements.  Ms Kang’s response to that complaint was that Ms Gersbach continued to change the instruction parameters.

24. By the conclusion of the meeting Ms Gersbach informed Ms Kang that she would again commence working with Mr McKnight and she provided her with another task.  She said that if Ms Kang could successfully complete that task it would demonstrate her capacity to satisfy the probation criteria.  The catch however was that that task could only be commenced on 1 March which was after the expiration of the probation date and accordingly Ms Gersbach indicated that her probation would have to be extended to permit her that opportunity.

25. Ms Kang did not take well to Ms Gersbach’s offer.  Her response as detailed in her affidavit.  It was to say to Ms Gersbach,

    “I don’t think we should continue our conversation any more;  I would like HR to be involved with my probation process; I don’t believe there is no justice in AGs; otherwise, I will get a lawyer if it is necessary”. (sic)

26. The meeting concluded and Ms Kang then sent an email to Mr Butler requesting an appointment to see him.  She also emailed Mr Kennedy who was the Acting Assistant Secretary. 

27. In his evidence Mr Kennedy stated he believed that there were some personality conflicts in Ms Gersbach’s area which required resolution and that those issues included in part the applicant. It had been reported to him by Ms Gersbach that the applicant was not absorbing the requirements of government processes, she required a large amount of supervision and there had been difficulties with the supervisory arrangements.

28. Advice to him from Human Resources was that as reports of the applicant’s performance had not improved he needed to satisfy himself about the performance issues involving her and consider the probation reports relating to her.  He decided then to meet with the applicant.

29. On 16 February Ms Kang met with Mr Kennedy. 

30. The applicant informed Mr Kennedy that she had not been afforded sufficient opportunity to demonstrate adequate performance.  Mr Kennedy had not seen any probation reports by this time, accordingly, I infer, he felt unable to advance matters at that time.  He says the applicant asked if she ought resign.  Whilst that matter is not accepted it is not an issue and nothing turns on it. 

31. On 20 February 2007 the applicant sent Mr Kennedy an email complaining about the manner in which she was being treated and stated that she was after “fairness and justice” from Mr Kennedy as a “director”.  She complained that Ms Gersbach had failed to follow the probation process and that she had breached the code of conduct.

32. Shortly after these events Mr Kennedy received the applicant’s probation reports. The first report concerned the period from 4 September 2006 to 3 December 2006. That report noted her performance as unsatisfactory in the areas of analytical skills and judgment, ability to achieve results and specific capability 1 – knowledge of the government’s financial framework. Mr Kennedy stated that that report was not provided to him until the week of 19 February 2007. He says that he signed the report for the extension of the applicant’s probation period beyond 3 December 2006 but did not date his signature as by the time the report was provided to him the applicant had almost completed the second three month probation period of her probation.

33. He says that he also considered that the probation report written by Ms Gersbach in respect of the applicant’s employment for the period 4 December 2006 to 3 March 2007 which report was dated 20 February 2007.  He says that he noted that the applicant’s performance was still rated as unsatisfactory on the same grounds as it had been in the first probation report.  In addition to this he had regard to the fact that the second probation report also rated the applicant’s performance as being unsatisfactory on two further grounds, namely her “ability to develop productive working relationships” and “ability to communicate effectively”.  Concerning the second probation report Mr Kennedy particularly noted that Ms Gersbach had recommended that although the applicant had the appropriate skills to cope with the position she did not support her permanent appointment at that time.  He noted Ms Gersbach’s recommendation that she would be “prepared to commit to an extension to the probation period if deemed necessary”. 

34. In his statement Mr Kennedy stated that before he received the written probation reports he had spoken with Ms Gersbach regarding her recommendation that the applicant’s probationary period be extended for a further three months as her performance had been unsatisfactory during the first six months of her employment.  He noted that notwithstanding the written recommendation to extend the applicant’s probation period Ms Gersbach’s position appears to have changed by the time of her meeting with him.  He noted that she expressed some concerns with extending the applicant’s probation as she saw little or no reasonable prospect of the applicant’s performance improving.  He stated that during his meeting with Ms Gersbach he asked her to think more objectively about the recommendation she was proposing.  He stated he thought it was appropriate that her recommendations be consistent with the performance assessments and with Ms Gersbach’s judgment that the applicant was unlikely to be able to lift her performance to acceptable levels.

1. Mr Kennedy stated that based on all the information before him he was concerned that:

   i)The contents of the two probation reports seemed to suggest that the applicant’s performance was so unsatisfactory as to justify termination of her employment rather than its extension (even under probation);

   ii)Ms Gersbach considered there had been a substantial and continuing level of unsatisfactory performance by the applicant throughout the probation period which judgment Mr Kennedy accepted by reason of his confidence in Ms Gersbach;

   iii)Based on his discussions with Ms Gersbach and the probation reports it appeared to Mr Kennedy that the applicant seemed to be unable to grasp basic concepts and required a level of direct supervision which is more than should be required for an employee at the APS6 level and it did not appear that that need was likely to go away;

   iv)The drain on Ms Gersbach’s section resources that would be required to manage the applicant’s performance for a further three months in circumstances which Mr Kennedy lacked any real confidence that such an exercise would raise the applicant’s performance to an acceptable level;

   v)The response of the applicant suggested she was not willing to take on board the concerns expressed to her by her management; and

   vi)Ms Gersbach had by this time acknowledged that the applicant’s employment should be terminated.

2. Accordingly on the basis of Ms Gersbach’s reports and Mr Kennedy’s discussion with Ms Gersbach during the week of 19 February 2007 he decided during that week not to follow Ms Gersbach’s written recommendations to extend the applicant’s probation but instead decided to terminate her employment. 

3. By letter dated 28 February 2007 Mr Kennedy wrote to the applicant informing her that he had decided to terminate her employment and advising her that he was terminating her employment on the basis that she had performed her duties at an unsatisfactory level and that his decision to terminate was based solely on the matters identified above. He attached to his letter a Notice of Termination giving effect to his decision.

The Complaint

1. Although devoid of particulars it was apparent from the conduct of her application that the applicant complains that she was dismissed for an unlawful reason within the meaning provided by Section 659 Workplace Relations Act (WR Act).  The particular reasons alleged to constitute unlawful termination were:

   a)Section 659(2)(a) Absence from work because of illness; and

   b)Section 659(2)(e) The filing of a complaint against the employer.[3]

   [3] Affidavit of Applicant filed 31 May 2007 – paragraph 11.

Legislation

1. Section 659 of the WR Act relevantly provides that employment is not to be terminated on certain grounds. It provides,

   “[659] (2) [Grounds on which employment must not be terminated] Except as provided by subsection (3) or (4) an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any or more of the following reasons:

   (a) temporary absence from work because of illness or injury within the meaning of the regulations;

   …

   (e) the filing of a complaint, or the participation in proceedings - proceeding, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;”

2. Section 663 of the Act provides that an employee may apply under that section for an order under 665 in respect of an alleged contravention of section 659. Insofar as a proceeding is instituted seeking relief pursuant to section 663, section 664 of the WR Act provides for the relevant onus of proof. Relevantly it provides,

   “[664] [Proof of issues in relation to alleged contravention of section 659] In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

   (a)     it is not necessary for the employee to prove that the termination was for a proscribed reason; but

   (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).”

3. In effect once an allegation is made that the termination was for a proscribed reason the onus is imposed upon the respondent to prove that the termination was for a reason or reasons that do not include a proscribed reason; see Zhang v The Royal Australian Chemical Institute Inc.[4]

   [4] [2005] FCAFC 99.

Absence from Work Because of Illness

1. The applicant’s implied contention is that she was dismissed because of absences from work occasioned by a chest infection which she suffered in February 2007.  The evidence was that on 15, 16 and 19 February 2007 the applicant was absent from work due to a chest infection.  Subsequently from 22 February 2007 she was the absent from work due to a stress condition.  Her absences from work were supported with medical certificates issued by her consulting doctor in respect of visits to him on 22 and 24 February 2007.

2. The applicant produced a medical certificate from the Belconnen Medical Centre dated 15 February 2007 in respect of her absence from 15 and 16 February 2007. Although the certificate did not disclose the basis of its production I accept it was for the chest infection as deposed to by the applicant. Subsequently two further certificates were produced. The first was a certificate dated 22 February 2007 wherein Dr Jamiel of the Belconnen Medical Centre expressed the view that he had examined the applicant on that day and considered that she would not be fit for return to work from 22 to 23 February inclusive. A second certificate was issued on 24 February wherein Dr Jamiel expressed the view that the applicant would not be fit for work from 26 February to 22 March. 24 February was a Saturday. On that date Dr Jamiel also issued a referral to Dr Monica Castlman noting that she was “under severe stress at work”.

3. In her affidavit Ms Gersbach stated that she believed that on 23 February 2007 the applicant left on her (Ms Gersbach’s) desk medical certificates certifying that the applicant had been to see Dr Jamiel on 22 February 2007 in relation to stress and a chest infection and that she was unable to attend for the periods 22 to 23 February and 26 February to 2 March.  Quite clearly Ms Gersbach is in error on this point.  The medical certificate in respect of the period 26 February to 2 March was not issued until 24 February.  There were however in existence two certificates issued by Dr Jamiel one being the certificate dated 15 February 2007 which was in respect of the chest infection and the second dated 22 February 2007 which concerned the first stress event.  The third certificate must have been provided by the applicant to Ms Gersbach on or after 26 February that being the first working day after her having received the certificate from Dr Jamiel.

4. In any event Mr Kennedy conferred with Ms Gersbach during the week of 19 February 2007 in respect of Ms Gersbach’s recommendation that the applicant’s period of probation be extended.  Whilst it is possible that Ms Gersbach and Mr Kennedy met to decide the fate of the applicant’s probation on 23 February 2007 and at a time when Ms Gersbach was in possession of the medical certificates I am not satisfied it is the case.  Neither Mr Kennedy nor Ms Gersbach was able to provide a detailed recollection of when they met.  Mr Kennedy deposed to meeting sometime during the week of 19 February and Ms Gersbach deposed to having met sometime between 20 and 23 February.  The medical reports were delivered no earlier than 23 February.  It is possible that there was overlap on that date.  However had there been overlap and in particular had the matters been brought to the attention of Mr Kennedy I expect he would have had some recollection of those matters.  He gave no evidence of having been informed of those matters.  Nor was the matter put to him.  I am satisfied that he had no knowledge at the time of his decision that there had in fact been any absence of the applicant from her employment by reason of any medical condition.

5. Despite that matter the periods of absence were minor.  If they had given rise to concern I expect there would have been some reference to it in email traffic passing between personnel within the Department.  Mr Kennedy is a senior public servant.  He was far removed from the day to day routine of Ms Kang.  I doubt he had any awareness of her absences not to mention the reason for any absence.

6. I am not satisfied that there is any basis to conclude the applicant was dismissed because of any absence from work, either generally or because he is alleged to have had notice of the medical certificates procured by Ms Kang.

7. Accordingly I am satisfied that the applicant was not dismissed on the proscribed ground that she had temporarily been absent from work because of illness or injury.

The Filing of the Complaint

1. The second ground alleged against the respondent is that the applicant was terminated for reasons including the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authority.

2. At its best the applicant’s case discloses merely that:

   a)She made a statement to Mr Ross Butler requesting that there be “an investigation about my case”.[5] 

   b)The applicant said to Mr Kennedy that she would “take further action if I am not happy with the way I am being treated”.[6]

   c)She said to Sonia Kim the Attorney-General’s Department’s Harassment Officer that she was prepared to make a complaint.

   [5] Affidavit of applicant filed 12 October 2007, Exhibit LK12.

   [6] Affidavit of applicant filed 12 October 2007, Exhibit LK16.

3. It is well settled that the ground of termination prescribed by section 659(2)(e) WR Act relates only to complaints, participating in proceedings or recourse to authorities that are directed to parties other than the employer. The ground itself cannot be established by making a complaint directly to an employer; see He, in the matter of an application for Writs of Mandamus and Certiorari or constitutional relief against Lewin [2004] FCAFC 161 at [44]; Zhang v Royal Australian Chemical Institute Inc. (supra) at [22 – 30]; Zhang v The Royal Australian Chemical Institute Inc. [2006] HCATrans 227 (10 May 2006); and Claveria v Pilkington Australia Limited [2007] FCA 1692 at [110-112].

4. In this case the evidence demonstrates that the complaints were all internal.  There was no evidence to demonstrate any complaint to an external body.

5. It follows that there was no termination for the prescribed reason provided for in section 659(2)(e).

Reverse Onus

1. The reverse onus is not engaged if the applicant fails to allege the existence of a reason which would satisfy any of the reasons set out in section 659(2) WR Act; Zhang v The Royal Australian Chemical Institute Inc. supra at [31-33] and [46].  Furthermore even if there was merely a simple denial of the prohibited reason a respondent might satisfy the reverse onus if the applicant leads no evidence; see Robertson v South.[7]

   [7] [2000] FCA 1402 at [16].

2. In this case allegations were made.  Broadly however they were not supported by evidence.  Notwithstanding those matters I think it is in this case appropriate in any event to examine the basis of termination.  In his evidence Mr Kennedy identified five matters of concern.  They were:

   a)The contents of the probation reports suggested that the applicant’s performance was so unsatisfactory as to justify termination.

   b)Reports to him from Ms Gersbach were that there had been a substantial and continuing level of unsatisfactory performance by the applicant throughout the probation period.

   c)Information to him from Ms Gersbach was that the applicant seemed to be unable to grasp basic concepts and she required a level of direct supervision which was more than should be required for an employee at the APS6.  It was a situation which did not appear likely to be remedied.

   d)The applicant’s extension for an extra three months in circumstances where improvement seemed unlikely was likely to constitute an unnecessary drain on Ms Gersbach’s section’s resources.

   e)A perception that the applicant was not willing to take on board the advice from her supervisors.

Probation Reports

1. A term of the offer of employment made to the applicant provided that her employment would be contingent on the satisfactory completion of a six month probation period.  During that time the applicant’s conduct and work performance were to be assessed to determine whether they met the standards required by the Department of the applicant.  The terms further provided that if during the probationary period of employment work performance or conduct were not considered satisfactory then the employment would be subject to termination. 

2. There was provision for a three month extension to the probationary period in defined circumstances. 

3. The applicant’s performance was subject to two probationary reports.  The first for the period from 4 September 2006 to 3 December 2006 and the second for a subsequent three month period being from 4 December 2006 to 3 March 2007.[8]

   [8] The probation report exhibited in the material refers to the period 4 December 2006 to 3 March 2006.  Clearly the reference to 3 March 2006 should  be 3 March 2007 and I proceed on that premise.

4. In section 2 of the first probation report the applicant was noted as being unsatisfactory in three respects namely,

   a)Analytical skills and sound judgment;

   b)Ability to achieve results; and

   c)Position specific capability 1 – knowledge of government’s financial management framework.

5. Generally it was noted in the remarks and rating section in respect of those items that the applicant was being exposed to new areas of work and was taking time to adjust including time to familiarise herself with these relatively new areas.  At the end of the first three month period the remedial action proposed as detailed in section 4 was for an extension of the probation period to provide the applicant with an opportunity to perform.  In particular it was noted,

   “The concern regarding the unstructured nature of the work in her current team will need to be addressed with a degree of structure.  However, the work area typically responds to requests for information as required.  There will always be a degree of uncertainty.  Attempts will be made to mitigate this with sound instructions”.

6. Overall her supervisor, Mark McKnight noted,

   “I am concerned with the difficulty Lili is having managing the uncertainty in the work environment.  She does not seem to be coping with the budget work required in her current position.  Efforts will be made to manage both the uncertainty and the work relationship.”

7. Prior to completing this probation report Mr McKnight had met with Ms Kang on a number of occasions to discuss her role and career goals and to put in place a performance agreement.  In addition he sought to instruct the applicant on how some of the systems worked such as the “government estimates update system” and the “central budget management system”.

8. In March 2006 the second probation report was prepared.  That probation report related to the period from 4 December 2006 to 3 March 2007.  That report noted her performance as unsatisfactory in five respects.  They were:

   a)Analytical skills and sound judgment;

   b)Ability to achieve results;

   c)Ability to develop productive working relationships;

   d)Ability to communicate effectively; and

   e)Position specific capability 1 – knowledge of the government’s financial framework.

9. The second probation report indicated that there had been no improvement in the areas of unsatisfactory performance first identified in the first probation report.  In addition they indicated that there had been a deterioration of the working and communication aspects of her employment between the time of the first probationary report and the second probationary report.  Between the production of the two reports the applicant was subject to counselling by both Mr McKnight, her immediate supervisor and Ms Gersbach who was the Section Head.

10. It appears that in about mid December Mr McKnight spoke to Ms Gersbach about the applicant’s performance.  Ms Gersbach too had performance issues with the applicant.  Ms Gersbach informed Mr McKnight that she would speak with the applicant which she subsequently did.  This meeting occurred on 15 December 2006 when she met with the applicant to conduct the probation review.  Ms Gersbach said that she informed the applicant that at that time she did not wish to rate her on her first criteria as she could not determine whether it was the work provided to her or that it was her ability which was unsatisfactory.  Despite this indication she did inform the applicant that her performance to that had not been to the requirements of an APS6 employee in respect of those two first criteria as well as the criteria for knowledge of the government’s financial management framework.  Accordingly at that time the first two criteria remained unaddressed.  They were subsequently addressed in February 2007 after Ms Gersbach was informed by the Department’s Human Resources Section that ratings were required.  It was then that they were marked “unsatisfactory”.

11. Despite Ms Gersbach informing the applicant that she was not proposing to address the first two criteria it appears the applicant did not take well to the meeting. Although the applicant herself does not accept that conclusion that matter appears evident by reason of both Mr McKnight’s evidence concerning the applicant’s attitude to him following the applicant’s meeting with Ms Gersbach and further by reason of the email correspondence forwarded by the applicant after her meeting with Ms Gersbach. Mr McKnight stated that the day following that discussion the applicant would not talk to him when he approached her.  When he asked her what was wrong the applicant said “nothing”. Mr McKnight in turn spoke with Ms Gersbach who expressed surprise to him at her response as she, being Ms Gersbach, believed the discussion had gone well. On 18 December (being the next working day following the meeting with Ms Gersbach) the applicant also sent an email to Ross Butler, the Human Resources Manager. In it she stated,

    “I have an issue with my probation process.  I felt that I am victim. (sic)"

12. From the time of that meeting relations clearly cooled between the applicant and Mr McKnight. 

13. Following that meeting it was also noted by Ms Gersbach that the applicant had become sullen and would not speak with staff. 

14. Matters did not appear to improve in the time leading up to the six month probation review. Indeed following a conversation between the applicant and Ms Gersbach on 14 February 2007 it appeared the applicant did not take Ms Gersbach’s feedback very well. In an email dated 20 February 2007 the applicant informed Ms Gersbach that in fact she “would like HR to investigate the whole process” being a reference to the probation reviews. Further on that date she emailed Mr Kennedy complaining that Ms Gersbach had failed to follow the probation procedures and that she had acted unethically and in breach of a code of conduct.

15. The observations of Ms Gersbach and Mr McKnight were that the applicant behaved in an emotional and aggressive manner particularly when she was counselled by them about the performance of her duties. The applicant denied this. It is however apparent from the email correspondence which followed 20 February 2007 that the applicant was clearly upset about the manner in which she had been counselled. For instance her observations in correspondence to Mr Kennedy that Ms Gersbach had behaved in an unethical manner and in breach of a code of conduct are terms consistent with an emotional reaction to the events in question.

1. My observations of the applicant at the trial were that she was particularly defensive and argumentative.  She did not respond well to cross examination on these issues.  I formed the view that she had a particularly brittle personality and did not take well to criticism.  No doubt that was in part because of her age and experience relative to those of both Ms Gersbach and Mr McKnight who were each clearly many years her junior.  Also these matters may have been exacerbated by language issues.  It is clear from both the written and spoken word that English is the applicant’s second language.  The messages sought to be communicated may have been misconstrued by reason of those factors.  The emotional tone of the applicant was also reflected in her email correspondence not only to Trevor Kennedy but also to others within the Department including Sonya Kim and Lyn McDonald.

2. In the second probation report observations were made that the applicant’s relationships within the Section had deteriorated since her last performance review and that it was considered the applicant was no longer developing those working relationships.  It was also noted that her oral communication skills were acceptable but could be improved and that her written skills required more consideration.

3. I accept that the applicant’s behaviour following the meeting between herself and Ms Gersbach on 15 December provided ample evidence in support of those contentions. 

4. Concerning the three remaining performance criteria which clearly have been the subject of an unsatisfactory finding, efforts were made by Ms Gersbach to assist in her enhancement of her skills. For her part the applicant complains that she was not afforded sufficient training in relation to the Department’s IT systems to enable her to perform her work.

5. However irrespective of that matter the observations of Ms Gersbach were that the applicant’s difficulties were more fundamental. Whilst the applicant clearly had a background in financial accounting, the task at hand was more in the nature of management accounting. To assist in the applicant’s development of her capabilities in respect of which it was considered she was deficient she was assigned to a task in February 2007. That task required her to undertake research, liaise with other staff in the section and the Department, analyse information and present the results. The applicant was provided with instructions in writing and supporting paperwork and the task was explained to her personally by Ms Gersbach. Ms Gersbach’s assessment of her performance of that task was that she was unable to perform that task to the requisite APS6 level. It was noted for instance that the applicant continued to ask questions which were similar in nature to others already answered in relation to the then current or previously related task and that her questions demonstrated an inability to apply knowledge from one task to another. Ms Gersbach formed the view that the applicant was not able to adapt to the work or apply the lessons learned from one task to another as she would expect an APS level 6 person to do.

6. It was further alleged by Ms Gersbach that the applicant appeared to become annoyed and frustrated at having to correct her work or provide evidence of the source of the figures in her work.

7. Although at trial the applicant contended that Ms Gersbach had a negative attitude toward her I do not accept that to be the case.  I accept Ms Gersbach as having truthfully and honestly recounted her assessment of the applicant in respect of the applicant’s performance. I accept that Ms Gersbach professionally and impartially expressed her views concerning the applicant’s performance of her duties between December 2006 and late February 2007 whilst she directly oversaw the applicant.

8. In contrast it was clear to me that Ms Kang lacked objectivity and a capacity to receive and deal with negative feedback.  So much was apparent from her demeanour in the witness box when questioned about these matters.

9. Overall I am satisfied that the evidence demonstrates that applicant was not able to perform her duties to the requisite standards because she failed to demonstrate analytical skills and sound judgment, an ability to achieve results and position specific capability being knowledge of the government’s financial management framework and she failed to achieve each of these matters to the requisite standard.

10. When the performance criteria and the relationship criteria were considered collectively it is clear that the overall appraisal identified in the second probationary report could be supported. 

11. Premised upon that overall appraisal the initial recommendation of Ms Gersbach was that there be a further extension to the probation period. In the meantime Ms Gersbach discussed matters with Mr Kennedy and it seems recanted from her earlier position. Mr Kennedy swore that notwithstanding her written recommendation to extend the applicant’s probation period by the time of his meeting with Ms Gersbach she expressed some concerns about extending the applicant’s probation as she saw little or no reasonable prospect of the applicant’s performance improving. It was following that discussion that Mr Kennedy resolved not to adopt Ms Gersbach’s written recommendations to extend the applicant’s probation period and instead decided to terminate her employment. In my view given that the employment was terminated within the probation period and that it was terminated upon the basis of unsatisfactory performance referenced against the objective employment criteria Mr Kennedy was within his rights in terminating the applicant’s employment.

12. Finally it was contended by the applicant that her dismissal was part of a conspiracy to cover up a fraud perpetrated by Mr McKnight.  The allegation is serious and should be addressed.

13. The applicant contended that Mr McKnight was motivated to seek her dismissal to cover up his own misconduct. She asserted in her oral evidence that she had caught Ms Gersbach out forging a signature. The applicant said that she did not sign the probation report because she did not believe the signature was Mr McKnight’s signature. Furthermore she claimed the document was backdated. In his evidence Mr McKnight related how he prepared the first probation report in conjunction with Ms Gersbach and that he signed the signature at page 3. Although he says he could not recall signing the signature he identified the signature as his own.

14. I have no reason to doubt the evidence of Mr McKnight. However with respect to the applicant her assertion that the signature was not his, is not only not supported by any evidence but appears to be based on an irrational assertion on her part. She had quite clearly formed the view that members of the Department were “out to get her” and this unfortunately appears to have interfered with her capacity to objectively and dispassionately view the comments and remarks made against her.

Conclusion

1. In conclusion the applicant makes allegations that she was terminated because:

   a)of temporary absence from work because of illness contrary to s.659(2)(a) WR Act; or

   b)the filing of a complaint against the respondents contrary to s.659(2)(e) WR Act.

2. The evidence did not support either allegation.  In any event the evidence demonstrated that the applicant was properly terminated by the respondent being that her performance was not assessed as satisfactory during the course of her probation period.

Orders

1. Application dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:      Beverley Schmidt

Date:              29 May 2008