Unfair Dismissal: Khiani v Australian Bureau of Statistics [2011] DCAFC 109

The Federal Court of Australia has dismissed an adverse action claim on appeal (Khiani v Australian Bureau of Statistics [2011] DCAFC 109), finding that the fact that there was a temporal connection between the taking of leave by an employee and the taking of disciplinary action against the employee did not necessarily mean that there was a causal connection.

It found that  there had been a long process of attempting  to review the performance of the appellant, that the appellant had failed to achieve a satisfactory level of performance  and that it was clear that the employer respondent was not simply taking advantage of the fact that the appellant was on leave in order to dismiss her.

The appellant's conditions of employment were determined in part by a collective agreement which provided that the termination of employment was to occur after a two stage process of review of the employee's performance. The respondent made several attempts to implement the second stage however the appellant did not cooperate by attending meetings that were arranged for that purpose.

The appellant raised a number of issues on appeal about the process leading up to her dismissal.  She alleged that she was on long service leave when the first decision under the termination process was made and on sick leave when the final decision to give her an opportunity to respond to a proposal for her dismissal was made.

At first instance the primary judge had accepted evidence of the appellant's work superior (who had dismissed her) that the entitlement to take leave was not a reason for the decision. The primary judge  accepted that the reason for the decision to dismiss the appellant was her failure to reach the required level of performance and her failure to participate in the disciplinary process. She concluded that the appellant had not established that adverse action was taken against her because of an exercise of a workplace right.

The primary judge also considered s352 of the Fair Work Act which provides that  “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 regulation". She held that s352 did not preclude the dismissal of an employee while the employee is temporarily absent from work because of illness or injury.

On appeal the appellant attempted to argue that the primary judge should have found that she had a workplace right to be on leave and that the respondent had misused its power in asking her to respond in seven days to the complaint against her while she was on that leave.  The Federal Court found that it was not able to answer this question as the issue had not been properly raised at first instance, leaving open the possibility for future debate around this issue.