the Applicant v Greater Metropolitan Cemeteries Trust (No 2)
Citation: [2014] FCA 456
At a glance
- Employees affected
- 1
What happened
the Applicant was employed by Greater Metropolitan Cemeteries Trust as a Client Services Manager on a three-year contract subject to a six-month probationary period. During her employment, she made four separate complaints about workplace matters: safety concerns at a memorial function, poor service by a supplier, a potential conflict of interest involving another employee and that supplier, and inappropriate conduct by that employee. The complaints were made in March 2013. the Applicant was dismissed shortly after, with the employer citing poor performance and failure to develop satisfactory business plans.
What was decided
The court found that the Applicant was dismissed for performance-related reasons, not because she made complaints. Although a statutory presumption arose under section 361 of the Fair Work Act that the complaints caused the dismissal, the Respondent successfully rebutted this by proving performance concerns were documented before the complaints were made. The application for relief under section 340 (general protections) was dismissed.
What it means for employers
Employers can dismiss employees for poor performance even if they have recently made complaints, provided there is genuine documented performance concerns prior to the complaints. However, employers should be careful to establish clear performance records before taking dismissal action against someone who complains, as the legislation presumes complaints triggered dismissal.
What it means for employees
Making a complaint about employment matters receives statutory protection against adverse action, but only if the complaint was a reason for dismissal. If an employer can prove dismissal was genuinely for performance reasons, the complaint protection does not apply.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca0456Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →