Kang v Commonwealth of Australia [2008] FCA 1863

FEDERAL COURT OF AUSTRALIA

Kang v Commonwealth of Australia [2008] FCA 1863 Workplace Relations Act 1996 (Cth) ss 659(2)(a), 659(2)(e), 659(2)(f), 660, 661, 663, 664 Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(1A), 43 Federal Magistrates Act 1999 (Cth) s 79(2) Kang v Attorney-General's Department [2008] FMCA 638 referred to Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 cited Claveria v Pilkington Australia Ltd (2007) 167 IR 144 referred to Robertson v South (2000) 140 IR 169 referred to He v Lewin (2004) 137 FCR 266 cited Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672 cited LILI KANG v COMMONWEALTH OF AUSTRALIA

VID 453 of 2008

TRACEY J

19 DECEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 453 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LILI KANG

Appellant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: TRACEY J DATE OF ORDER: 19 DECEMBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 453 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LILI KANG

Appellant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: TRACEY J

DATE: 19 DECEMBER 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Between 4 September 2006 and 28 February 2007 Ms Lili Kang was employed in the Commonwealth Attorney-General's Department. Throughout this period she was a probationary employee. On 28 February 2007 her employment was terminated on the ground that she had failed to perform her duties at an acceptable standard. 2 Ms Kang considered that her employment had been terminated for reasons proscribed by the Workplace Relations Act 1996 (Cth) ("the Act"). Specifically, she alleged that she had been dismissed because of a temporary absence from work due to illness and because she had filed complaints against her employer alleging breaches of applicable laws. She commenced a proceeding in the Federal Magistrates Court in which she sought re-instatement to her former position, compensation and costs. At trial, she abandoned her claim for re-instatement and advised the Court that she sought compensation and an apology. The proceeding was dismissed by the Federal Magistrate: see Kang v Attorney-General's Department [2008] FMCA 638. 3 The respondent (who was, by order of this Court, identified as the Commonwealth of Australia) opposed the application and sought its costs. The Federal Magistrate did not rule on the costs application. 4 Ms Kang lodged an appeal in this Court. The Commonwealth cross-appealed on the costs issue. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") that the appeal be heard and determined by a single judge.