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Bizuneh v Commissioner, Australian Electoral Commission [2022] FCA 1198 (7 October 2022)

Last Updated: 7 October 2022

FEDERAL COURT OF AUSTRALIA

Bizuneh v Commissioner, Australian Electoral Commission [2022] FCA 1198

File number(s):	NSD 90 of 2022
Judgment of:	RAPER J
Date of judgment:	7 October 2022
Catchwords:	INDUSTRIAL LAW – where the applicant’s employment was terminated – where the applicant claims breaches of ss 15(3), 15(4), 29(1), 41B(3) and 50A of the Public Service Act 1999 (Cth) and under s 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth). PRACTICE AND PROCEDURE – interlocutory application by the respondent for summary judgment and strike out – interlocutory application by the applicant to dismiss the respondent’s interlocutory application –– whether the applicant has no reasonable prospects of success – respondent’s application to strike out parts of the applicant’s claim partially successful – applicant allowed to re-plead one aspect of his claim- applicant’s interlocutory application dismissed
Legislation:	Age Discrimination Act 2004 (Cth) Fair Work Act 2009 (Cth) ss 351(1), 117, 392 Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2), 37M, 37N Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A) Public Service Act 1999 (Cth) ss 7, 15(3), 15(4), 22(2), 29(1), 41B(3), 50A(2), 78 Racial Discrimination Act 1975 (Cth) ss 9(1), 15(1) Sex Discrimination Act 1984 (Cth) Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 16.21(1)(e)
Cases cited:	Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 Cook v Australian Postal Corporation [2017] FCA 509 Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 Kimber v Owners of Strata Plan No. 48216  [2017] FCAFC 226 ; 258 FCR 575 Kitoko v University of Technology Sydney [2021] FCA 360 McGuirk v University of New South Wales [2009] NSWSC 1424 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [2017] FCA 1202; 123 ACSR 223 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	54
Date of hearing:	6 and 21 September 2022
Counsel for the Applicant:	The applicant appeared in person
Solicitors for the Respondent:	Mr T Woods of Lander & Rogers (on 6 September 2022) Ms E Lutwyche of Lander & Rogers (on 21 September 2022)

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s originating application filed on 15 February 2022 and amended statement of claim filed on 30 June 2022 is struck out pursuant to r 16.21(e) of the Federal Court Rules 2011 (Cth).
2. The applicant is granted leave to re-plead only his claim under s 29(1) of the Public Service Act 1999 (Cth) regarding the alleged lack of power on the part of Ms Roebeck (by reason of her position) to terminate his employment.
3. The applicant’s interlocutory application, filed on 4 April 2022, is dismissed.
4. The matter be listed for a case management in person on Friday 14 October 2022 at 9:30 am in person.

REASONS FOR JUDGMENT

RAPER J:
Introduction

1. By application filed on 15 February 2022, the applicant made claims under s 351(1) of the Fair Work Act 2009 (Cth) (FW Act), ss 9(1) and 15(1)(b) of the Racial Discrimination Act 1975 (Cth), and in general the Age Discrimination Act 2004 (Cth) and Sex Discrimination Act 1984 (Cth) in relation to his dismissal by the respondent. In this application, the applicant sought compensation for lost and expected earnings under s 392 of the FW Act, general, aggravated and punitive or exemplary damages under the Racial Discrimination Act and orders as to costs.
2. In his statement of claim filed 15 February 2022 (original statement of claim), the applicant sought orders for lost and expected earnings of $36,382, superannuation contribution of $5,603, future economic loss of $45,043.88, superannuation contribution of $6,937 and compensation under “the relevant discrimination laws of the Commonwealth of Australia... for the psychological and mental suffering” he was said to have endured to the amount of $450,000.
3. The applicant was granted leave to file an amended statement of claim.
4. By amended statement of claim filed 30 June 2022, the applicant stated the Court was to disregard his discrimination and FW Act claims and that he now relied upon ss 15(3), 15(4), 41B(3) and 50A(2) of the Public Service Act 1999 (Cth) (PS Act) and ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth). The applicant confirmed the same at the hearing.
5. This decision concerns the resolution of two interlocutory applications brought by each of the parties heard at the same time on 6 and 21 September 2022 namely:

(a) an interlocutory application filed 3 March 2022 (respondent’s interlocutory application), where the respondent seeks summary judgment pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), or strike out of the applicant’s pleadings pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth); and

(b) an interlocutory application filed 4 April 2022 (applicant’s interlocutory application), where the applicant pressed only proposed order 1: the dismissal of the respondent’s interlocutory application.

6. For the reasons set out below, the respondent’s interlocutory application for summary judgment is refused but the respondent’s application for strike out is partially upheld save for the applicant’s claim relating to an alleged breach of s 29(1) of the PS Act for which the applicant is given leave to re-plead. It necessarily follows that the interlocutory application filed by the applicant should be dismissed.

Background

Engagement as employee

7. On 22 October 2021, the applicant was offered a position by the respondent as a Temporary Office Assistant with the Australian Electoral Commission (AEC) for the period 8 November 2021 to 29 September 2022. The applicant accepted and signed the offer on 26 October 2021. The terms of the offer stated that the applicant was employed “in accordance with paragraph 22(2)(c) of the PS Act”, as a “irregular or intermittent (casual)” employee with “[i]rregular or intermittent duties with no guaranteed hours”.
8. The applicant was engaged to perform work only on three occasions, being 11 November, 30 November and 3 December 2021.

Termination of employment

9. On 6 December 2021, the applicant was notified by Ms Roebeck, Assistant Divisional Office Manager of the Haymarket Office of the AEC, by email, that his employment had been terminated. The email stated:

Dear Tafese,
I am writing to you about the termination of your employment with the Australian Electoral Commission as a Temporary Office Assistant.
On 6 December 2021, I gave you a telephone call in the presence of my colleague Dominique. In that meeting, it was outlined that your behaviour on Friday, 3 December 2021 was not appropriate and did not display the values of the Australian Public Service, particularly in regards to raising your voice during training, and in the process not being respectful or courteous of other team members in the office.
Therefore, I am notifying you in writing to confirm that effective immediately your services with the Australian Electoral Commission will no longer be required and you will not be required to come to the office on Thursday, 9 December 2021 and Friday, 10 December 2021.
You will also be paid any outstanding pay, up to and including your last day of employment.
Regards,
...

Disputed facts with respect to the termination of employment

10. It became apparent during the hearing of the interlocutory application that the applicant disputed the following facts with respect to the termination of his employment:

(1) who terminated the applicant’s employment – the applicant asserts it was Ms Roebeck (who had no power under s 29(1) of the PS Act to terminate his employment). The respondent asserts it was the decision of Mr Daniel Taylor, Assistant Director – Operations, NSW State Office, who by delegated authority had such power under s 29(1);

(2) whether Ms Roebeck had conversed with Mr Taylor prior to the termination of the applicant’s employment; and

(3) whether there had been a “meeting” or discussion over the phone by Ms Roebeck with the applicant prior to the termination of his employment.

11. The existence of these disputed facts are relevant to the applicant’s unpleaded claim that there was a breach of s 29(1) of the PS Act.

Application for summary dismissal and/or strike out

12. As stated above, the respondent relies on s 31A of the FCA Act and r 16.21(1)(e) of the Federal Court Rules.
13. Section 31A of the FCA Act provides:

31A Summary judgment
...
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or
(b) bound to fail;

for it to have no reasonable prospect of success.
...

14. Rule 16.21 of the Federal Court Rules provides:

16.21 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.

(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
(Emphasis added).

Applicable principles

15. In order for the Court to give summary judgment in favour of a respondent under s 31A(2) of the FCA Act, the respondent bears the onus of establishing that the applicant has no reasonable prospects of successfully prosecuting the proceeding: Kimber v Owners of Strata Plan No. 48216  [2017] FCAFC 226 ; 258 FCR 575 at  [62] . It is not necessary for the respondent to establish that the claim is “hopeless” or “bound to fail” for it to have no reasonable prospects of success: s 31A(3). The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, namely prospects which are “real” not “fanciful”: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]–[26] per French CJ and Gummow J. The real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded: at [23], citing White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47] (per Lindgren J).
16. As stated in Spencer, in the joint judgment of French CJ and Gummow J at [24]:

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such disposition is sought in a summary judgment application supported by evidence. As to the latter this Court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.

(Footnotes omitted).

17. Justices Hayne, Crennan, Kiefel (as her Honour then was) and Bell, in Spencer, agreed with the result but explained their conclusion differently from French CJ and Gummow J. In essence they provided no elucidation for when summary judgment may be available but rather emphasised the question for determination – whether the Court is satisfied that there was “no reasonable prospect” of success: at [60].
18. Importantly for the purposes of this case, where there are factual issues “capable of being disputed” and are “in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue”: Spencer at [25]. An application for summary judgment should not be allowed where there are real issues of fact evident upon the application or evidence which require proper determination at a trial: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] and Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10].
19. The respondent relied, in addition to the principles elucidated in Spencer, on the reasoning of Katzmann J in Cook v Australian Postal Corporation [2017] FCA 509 at [16]–[26]. Her Honour concluded, at [26] (citing Spencer at [52]), that “the relevant inquiry, then is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding, not whether ‘certain and concluded determination could be made that the proceeding would necessarily fail’”.
20. There is a clear distinction between ordering summary judgment and strike-out of part or all of a pleading under r 16.21(1)(e) in the Federal Court Rules. Rule 16.21(1)(e) provides that a pleading may be struck out where it “fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”. As stated above, when considering whether to order summary judgment, the Court is required, as part of the dictated caution it must exercise, to consider whether the evidence (over and above what is contained in the pleading) demonstrates no reasonable prospect of success. By contrast, r 16.21 is directed to a consideration of the pleadings and their deficiencies: Spencer at [23]; Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 at [96].
21. Justice Griffiths recently considered the power to strike out in Kitoko v University of Technology Sydney [2021] FCA 360 at [61]–[67]. His Honour noted the need for r 16.21 to be considered in light of r 16.02 which provides, inter alia, that a pleading must be as brief as the nature of the case permits; identify the issues required for resolution; state the material facts on which the party relies that are necessary to give the other party fair notice of the case against them (by contrast to evidence); and not fail to disclose, relevantly, a reasonable cause of action: at [62]. His Honour went on to cite with approval, the statement made by Moshinsky J in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [2017] FCA 1202; 123 ACSR 223 at [17] (citing McGuirk v University of New South Wales [2009] NSWSC 1424 at [21] per Johnson J) at [64]:

... the function of pleadings is to state with sufficient clarity the case that must be met by a defendant; in this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296, 302–303.

22. Pleadings must be of sufficient clarity to achieve the Court’s overarching purpose under ss 37M and 37N of the FCA Act: at [65].
23. Whilst a party is not required to plead every material fact in issue, Griffiths J opined (at [66]):

...the applicant must plead the “material facts necessary for the purpose of formulating a complete cause of action, and ... it is not sufficient simply to plead a conclusion drawn from unstated facts” (McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] per Weinberg J). The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation (Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235 per Beaumont J).

Pleaded PS Act Claims

24. The applicant has sought to invoke the original jurisdiction of this Court by way of ss 39B(1) and 39B(1A)(c) of the Judiciary Act, in the following way as contained in [31] of his amended statement of claim, [29]–[31] are extracted for completeness:
    29. As an APS employee, the termination of my employment is arbitrary manner [sic] and in breach of procedures estblished [sic] by subsection 15(3) or subsection 41B(3) or 50A(2) the Public Sevice Act 1999 (Cth) [sic].
    30. Subsection of [15(4)] of the Public Sevice Act 1999 (Cth) [sic] clearly stressess [sic] the vitality of pocedural fairness [sic] as follow:

The procedures:

(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and

(b) must have due regard to procedural fairness.

31. As a result, the Federal court of Australia, under subsections 39B(1) and 39(B)(1A)(c) of the Judiciary Act 1903 (Cth) has jurisdiction to hear and determine my Amended Statement of Claim.

(Emphasis in original).

25. In addition, the applicant raised additional unpleaded claims in submissions and evidence. In particular, the applicant claims that Ms Roebeck terminated his employment, Ms Roebeck is not an “agency head” within the meaning of s 29(1) of the PS Act and therefore the termination of his employment was beyond power and that he was not provided with written notice in advance of his termination which the applicant claims was required under s 29(1).

Relevant legislative provisions

26. Sections 39B(1) and 39B(1A)(c) of the Judiciary Act provide:

39B Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
...

27. As extracted at [24] above, the applicant pleaded, in support of his PS Act Claims, the following provisions of the PS Act, ss 15(3), 15(4), 41B and 50A(2), which are extracted as follows:

15 Breaches of the Code of Conduct
...
(3) An Agency Head must establish written procedures in accordance with this section for determining:

(a) whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and
(b) the sanction (if any) that is to be imposed under subsection (1) on an APS employee in the Agency who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)).

(4) The procedures:

(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and
(b) must have due regard to procedural fairness.

...
41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee
...
Procedures for inquiry
(3) The Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures:

(a) must comply with basic procedural requirements prescribed by the regulations; and
(b) must have due regard to procedural fairness.

...
50A Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee
...
Procedures for inquiry
(2) The Merit Protection Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures:

(a) must comply with basic procedural requirements prescribed by the regulations; and
(b) must have due regard to procedural fairness.

Note: The procedures may make different provision for different classes of APS employees or former APS employees (see subsection 33(3A) of the Acts Interpretation Act 1901).

28. In addition, at hearing the applicant also relied on s 29(1) of the PS Act with respect to his unpleaded claim referred to above at [25].
29. Section 29 of the PS Act provides as follows:

29 Termination of employment

(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.

...

(4) The regulations may prescribe the grounds for the termination of the employment of non‑ongoing APS employees.

(5) Subsection (4) does not, by implication, limit the grounds for termination of the employment of a non‑ongoing APS employee.

30. An “Agency Head” is defined in s 7 of the PS Act to mean: (a) the Secretary of a Department; or (b) the Head of an Executive Agency; or (c) the Head of a Statutory Agency.

Consideration

31. For the following reasons, I conclude that given there is a factual dispute with respect to one aspect of the applicant’s claim, this is not an appropriate matter for which summary judgment should be ordered in the respondent’s favour.
32. However, I am of the view that, save for the applicant’s unpleaded claim under s 29(1) regarding the alleged absence of power on the part of Ms Roebeck to terminate the applicant’s employment, all other claims made by the applicant do not disclose a reasonable cause of action and should be struck out. The applicant will be given leave to re-plead on this issue only.
33. Paragraphs [4]–[28] of the applicant’s amended statement of claim sets out his brief employment history. The applicant claims to be aggrieved by the fact of him only being able to work three days “for nearly one month” (at [9]), that he was “deliberately and systematically denied” the opportunity of “crucial training” (at [10] and [13]) which he then had to do in his own time (at [14]), was not given an access pass (at [11]), suffered delays in the approval of his timesheet (at [12]), was required to share a desktop computer and workstation undermining NSW health orders in relation to the COVID-19 virus (which he refused) (at [16]) and about which he alleges discrimination because of his “constitutional right to be respected and to be treated equally like other team members” (at [17]) (this comprises the incident referred to in Ms Roebeck’s email notifying him of the termination of his employment), that Ms Roebeck’s accusation of him raising his voice was “pure fabrication and defamatory ... racist, sexist and ageist” (at [18] and [19]), his termination was “pre orchestrated by Ms Castillo and Ms Roebeck” and “should have not been terminated at the drop of a hat — summary dismissal — with no verbal or written warning — more importantly without some procedural fairness” (at [22]) and where he was “unfairly and unlawfully terminated”: at [24].
34. As can be seen from the foregoing, there is little cohesion between the pleaded factual history (at [3]–[28]) and the articulated causes of action (at [29]–[31]) of the amended statement of claim. Unfortunately, it appears that the applicant’s true grievance appears to be the alleged unfairness of the termination of his employment, a claim which could be brought under the FW Act before the Fair Work Commission but for which this Court has no jurisdiction.
35. I accept that in considering an application under s 31A the Court must consider not only the pleadings but all the material before it. The applicant at hearing articulated two additional claims, arising under s 29(1) of the PS Act, which was not set out in his amended statement of claim, namely: (a) the absence of power on the part of Ms Roebeck to terminate his employment; and, (b) s 29(1) required that the applicant be given notice in writing in advance of the termination of his employment.
36. The applicant, by reason of what is stated at [33] of his amended statement of claim and as the applicant stated expressly at hearing, no longer presses his various claims under the Federal anti-discrimination legislation or under the FW Act as set out in his (unamended) originating application.
37. Taking each of the applicant’s PS Act claims in turn, the mere reference to sections under a Commonwealth law is insufficient to invoke the jurisdiction of this Court under s 39B(1A)(c) of the Judiciary Act. In any event, even if the Court accepts it has jurisdiction to deal with claims arising from the exercise of powers under the PS Act (which it does), the applicant has failed to articulate in his pleading any basis for these claims.
38. Section 15 concerns the specific procedures that arise where an APS employee “is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have breached the Code of Conduct”: s 15(1).
39. Section 15(3) concerns the establishment of general procedures (which do not constitute legislative instruments): s 15(8). Section 15(4) requires that any such procedures must comply with the basic procedural requirements set out in the Australian Public Service Commissioner’s Directions and must have due regard to procedural fairness.
40. The applicant contended at hearing that by operation of s 15(4), the respondent must “have due regard to procedural fairness” and the alleged “denial” he suffered was that his employment could not be terminated “at a drop of a hat” because the recruitment process took more than three months. The applicant went on to submit that the Court has “inherent jurisdiction in terms of the law of equity” regardless of the PS Act and his claim “should be heard based upon the common law, the valour of equity, because [his] job [was] terminated unfairly and without a procedure”.
41. There are a number of difficulties with respect to the applicant’s claims under s 15. The contemplated procedures arise where there has been a “finding” of a breach of the Code of Conduct. There is nothing in the applicant’s pleading or the material relied upon by the applicant or the respondent that suggests there was such a “finding” of the kind identified in s 15(1) which would then give rise to any adherence to the procedures contemplated under the section (noting they do not have legislative force: s 15(8)). The PS Act does not restrict an agency to terminating an employee’s employment only where there is a “finding” of a breach of the Code. Furthermore, the applicant has not pleaded nor articulated at hearing how by s 15(3) or 15(4) there could be any cause of action for breach.
42. Section 41B concerns inquiries that the Australian Public Service Commissioner may conduct into alleged breaches of the Code. Section 50A concerns an inquiry that may be undertaken by the Merit Protection Commissioner. Again, the applicant does not plead or allege that it was asserted by the respondent that he had breached the Code. Further, there is no allegation, pleaded claim nor any material to indicate that there was any “inquiry” conducted by either Commissioner. Accordingly, the claims are misconceived.
43. The applicant also submitted at hearing (but does not plead) that his termination was in breach of s 29(1) of the PS Act on the basis that he was not given “written notice” required under s 29(1) which should be construed to constitute as notice in writing in advance of the termination. Section 29(1) is extracted at [29] of these reasons. There is nothing in the terms of the sub-section that requires that the notice must be made in advance of the termination. Section 29(1) states that such notice may be given “at any time”. There is no proscription at all in the section as to the amount of notice required. This is unsurprising because the FW Act makes provision regarding the same. Indeed, s 29(1) contains two Notes, the first of which states that “The Fair Work Act 2009 has rules and entitlements that apply to termination of employment”. Section 117 of the FW Act proscribes the amount of notice required on termination. An employee is only entitled to “notice” if employed for at least a period of continuous service. However, a casual employee does not accrue “continuous service” and therefore is not entitled to notice: at s 117(4). It appears misconceived, in the face of the clear language of s 29(1) and the operation of the FW Act, to argue that the section entitled a public sector employee to an undefined amount of notice for which they would not otherwise be so entitled. The applicant was provided with “notice in writing” by email dated 6 December 2021 as extracted at [9] above.
44. To the extent that the applicant submits that there is a basis to hear “applications for judicial review of decisions by officers of the Commonwealth to issue writ [sic] of mandamus either to reinstate [his] employment if practicable or to make orders to [his] claims” there are no such prayers of relief pleaded nor any basis identified as to why or how with respect to the claim of “reinstate[ment]” it could be made.
45. The applicant’s claim for relief is with respect to compensation for “lost and expected [earnings] from 06 December 2021 to 29 September 2022”, compensation “as per the relevant Common Law of the Commonwealth of Australia for [his] psychological and mental suffering” in the sum of “$450,000”. The applicant has pleaded no basis as to how he could be so entitled to any damages arising from the PS Claims.
46. The only part of the applicant’s claim, albeit, unpleaded, about which I have some reservation (from the perspective of whether it is susceptible to an application for summary judgment) is the applicant’s claim regarding the absence of power on the part of Ms Roebeck to terminate his employment.
47. The respondent adduced at hearing evidence from Ms Roebeck that she was acting on instruction from Mr Taylor who held the appropriate delegation. To make good this submission, the respondent relied on Ms Roebeck’s evidence and also on s 78 of the PS Act which allows for an agency head to delegate his or her powers relating to the termination of employment. It provides:

78 Delegations
...
(7) An Agency Head may, in writing, delegate to another person any of the Agency Head’s powers or functions under this Act (other than this section).

48. In this context, the respondent also relied upon the Instrument of Delegation signed by the respondent on 29 September 2021 which states:

I, TOM ROGERS, Electoral Commissioner, in exercise of the powers conferred on me by:

• Section 78 of the Public Service Act 1999,
• Regulation 9.3 of the Public Service Regulations 1999,
• Part 7, Section 52 of the Australian Public Service Commissioner's Directions 2016,
• Rule 13 of the Public Service Classification Rules 2000,
• Section 9 of the Long Service Leave (Commonwealth Employees) Act 1976,
• Section 11 of the Maternity Leave (Commonwealth Employees) Act 1973,
• Section 41A of the Safety, Rehabilitation and Compensation Act 1988, and
• Clause 6 of the Australian Electoral Commission Enterprise Agreement 2016–2019

...

2. DELEGATE to the persons from time to time holding, occupying or performing the duties of the positions appearing in Column 2A (general AEC staff) and Column 28 (staff within the AEC's People and Property Branch) of the Schedule to this instrument, those functions and/or powers appearing in Column 1 of the Schedule, as indicated.

(Emphasis in original).

49. The Schedule to the Instrument of Delegation further provided under the heading “Description of function / power”, with the corresponding statutory provision being s 29(1) of the PS Act, that a delegate may:

Terminate, by notice in writing and at any time, the employment of a non-ongoing APS employee (engaged pursuant to ss 22(1) and 22(2) (b)) or an irregular or intermittent employee (engaged pursuant to ss 22(1) and 22(2) (c)).

50. Whilst the respondent may very well succeed at trial, my reservation arises because the applicant disputes the evidence relied upon by the respondent, on the bases identified at [10] above. Where there is a live factual dispute between the parties, it is not appropriate for a matter to be susceptible to summary judgment. I also note the applicant had not pleaded this claim at all. I acknowledge the respondent’s submission as to the accuracy of Ms Roebeck’s evidence. Ultimately, it may be accepted entirely at final hearing. But here it is disputed by the applicant as a matter of fact. Whilst I say nothing ultimately with respect to the merits of the claim, about which the applicant will have significant difficulty in establishing if both Ms Roebeck and Mr Taylor give evidence on this issue, nevertheless, I am bound to grant the applicant liberty in the circumstances to re-plead this portion of his claim only.
51. Accordingly, I accept the respondent has proven that all of the applicant’s claims disclose no reasonable cause of action and must be struck out, save for the claim articulated in the preceding paragraph.
52. It necessarily follows that the applicant’s interlocutory application should be dismissed. I have found that the respondent’s interlocutory application is made out save in one respect in relation to an unpleaded claim by the applicant and I do not consider that the respondent’s application constitutes an “abuse of process”.

Conclusion

53. For these reasons, the respondent’s interlocutory application for strike out under r 16.21(1)(e) of the Federal Court Rules is upheld save with respect to one claim only – that the applicant’s dismissal was beyond power by reason of the decision to terminate his employment being made by Ms Roebeck who did not have the requisite power pursuant to s 29(1) of the PS Act. The applicant is given leave to re-plead it. It necessarily follows that the interlocutory application filed by the applicant should be dismissed.
54. The respondent does not seek its costs and therefore no costs orders will be made.

Associate:

Dated: 7 October 2022