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Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints

Workplace Update – Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints

General ProtectionIn May, the Federal Court ruled that the Fair Work Act’s general protections provisions covered a wide range of employment complaints.

However, it found that these were not the reason for a client services manager’s dismissal in the case at hand, Walsh v Greater Metropolitan Cemetries Trust (No 2) [2014] FCA 456 (9 May 2014).

Justice Bromberg dismissed the client manager’s (“Walsh”) adverse action claim against the Greater Metropolitan Cemeteries Trust (“GMCT”), finding that she had been dismissed for poor performance and not because she made complaints about a linen supplier and its links to one of the trust’s employees.

GMCT, which operates 19 cemeteries across metropolitan Melbourne, engaged Walsh on a three (3)-year contract on 24 September 2012, but stipulated that her employment was subject to a six (6)-month probation period.

GMCT dismissed Walsh on 20 March 2013, four (4) days prior to the expiration of her probation period.

Walsh told the Court she had made four (4) complaints to her Director on 7 March 2013, and repeated them in a meeting with GMCT’s Chief Executive five (5) days later.

The complaints related to:

  • the shortage of GMCT staff at a Greek Orthodox memorial service, leading to workplace safety concerns and the unlawful consumption of alcohol by some of the attendees;
  • linen supplier, Alsco, providing sub-quality service;
  • Alsco’s employment of her Director’s Executive Assistant’s daughter, and probity issues arising from the Assistant dealing with her daughter in relation to the contract; and
  • the Executive Assistant undermining Walsh in discussions with other employees.

GMCT argued to the Court that the complaint about the probity of the Alsco contract did not relate to Walsh’s employment under section 341(1)(c)(ii).

Justice Bromberg said that the words “in relation to” in the section 341(1)(c)(ii) were of “wide import“, and the relationship could be direct or indirect.

Relying on the Court’s CFMEU v Pilbara Iron decision, his Honour said the nexus would likely be satisfied “where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.  His Honour said Walsh had raised a probity issue in relation to a contract with a supplier who provided services to an operation which she managed in the course of her employment, and Walsh’s “failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment“.

His Honour said, “By reason of either of those two factors, the Alsco contract complaint made [by Walsh] raised an issue with potential implications for [her] employment and was ‘in relation to…her employment’ within the meaning of s 341(c)(ii) of the FW Act”.

Justice Bromberg accepted evidence from GMCT’s Chief Executive, however, that the complaints had nothing to do with her decision to dismiss Walsh.  The Chief Executive told the Court that she had decided to dismiss Walsh after having discussions with the Director and GMCT’s HR Manager, and set up a meeting on 12 March 2013 with her to communicate her decision.

When Walsh made the complaints at the meeting, the Chief Executive adjourned the meeting to investigate Walsh’s complaints, but ultimately concluded that they were without substance.

The Chief Executive said that nothing Walsh had raised in the 12 March meeting concerned her enough to change her view that her employment should be ended, and that the reasons were that she was not a “good cultural fit for the organisation“, was not focused on the strategic aspects of her job, and had become involved in too many conflicts with other employees.

LESSONS FOR EMPLOYERS?

It is apparent that an employee can raise virtually any issue of concern that has some loose and indirect connection with their employment, and rely on that as a workplace right in an adverse action claim under Part 3-1 the Fair Work Act.

However, this does not mean that an employer cannot appropriately and fairly manage employees’ performance and conduct and make decisions to discipline or dismiss, when such complaints have arisen.

The critical issue for an employer is being able to explain, justify and defend the decision making process through clear evidence.

The employer should consider these issues:

  • What “paper trail” will exist about the reasons of the relevant decision makers, leading up to any decision to dismiss or discipline?
  • Are complaints properly investigated?
  • Who within the business will be involved in any decision?
  • Who makes the final decision?
  • Will they be available to give evidence?

Does the employer want the most senior people in the business to be directly involved in any decision making process?  If they are involved, given the nature of the evidentiary burden on the employer, their evidence will be needed. Does the business want its CEO or Managing Director to be in the witness box? If not, then query whether they should be directly involved in any decision making process, and consider delegating the authority to make such decisions to others such as the Human Resources department and direct managers.

Brooke Pendlebury
Wednesday, June 11, 2014
Dismissal, General Protection Claims, News