Bizuneh v Commissioner, Australian Electoral Commission

• Jurisdiction: Australia Federal only
• Judgment Date: 07 October 2022
• Neutral Citation: [2022] FCA 1198
• Date: 07 October 2022
• Court: Federal Court

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:	General 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

		NSD 90 of 2022
BETWEEN:	TAFESE ESHETU BIZUNEH Applicant
AND:	TOM ROGERS COMMISSIONER, AUSTRALIAN ELECTORAL COMMISSION Respondent

order made by:	RAPER J
DATE OF ORDER:	7 OCTOBER 2022

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.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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:

1. 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

2. 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...