Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Ms Walsh was dismissed for performance related reasons and not because she made complaints; the complaints were not an operative factor in her dismissal. The statutory presumption that adverse action was taken for prohibited reasons was displaced by the credible and cogent evidence of the decision-makers. Consequently, the application was dismissed. The application to re-open was rejected as the new evidence would not have been significant for determination of her claim and its admission would not have altered the outcome.

Jurisdiction
Australia
Judgment Date
09 May 2014
Procedural Posture
Application / Judgment
Outcome
Application dismissed
Legal Topics
['adverse Action' 'workplace Rights' 'dismissal' 'probation' 'performance Assessment' 'complaint in Relation to Employment' 'practice and Procedure' 'application to Re Open Case']
['industrial Law'] ['adverse Action' 'workplace Rights' 'dismissal' 'probation' 'performance Assessment' 'complaint in Relation to Employment' 'practice and Procedure' 'application to Re Open Case']

Case Brief

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Procedural Posture

Application / Judgment

Legal Issues

  1. 1 ['Whether adverse action was taken against the employee in contravention of s 340 of the Fair Work Act 2009 (Cth) because she exercised her workplace right to make a complaint in relation to her employment' 'Whether the making of a complaint was an operative factor in the decision to dismiss the employee' 'Whether the statutory presumption in s 361 of the FW Act is displaced' 'Whether leave to re-open the application to tender new evidence should be granted']

Ratio Decidendi

Ms Walsh was dismissed for performance related reasons and not because she made complaints; the complaints were not an operative factor in her dismissal. The statutory presumption that adverse action was taken for prohibited reasons was displaced by the credible and cogent evidence of the decision-makers. Consequently, the application was dismissed. The application to re-open was rejected as the new evidence would not have been significant for determination of her claim and its admission would not have altered the outcome.

Court Disposition

Application dismissed

Orders

  • ["The applicant's application be dismissed." 'There be no order as to costs.']