Walsh V Greater Metropolitan Cemeteries Trust

Q1) Adverse Action
The facts of Mary’s case share great similarities with that of the case Walsh v Greater Metropolitan Cemeteries Trust (No. 2) [2014]. Indeed, Mary’s case seems particularly strong as the defendant’s under performance has been documented frequently. However, the pivot on which this case rests is that of a workplace right enabling the employee to “make a compliant or injury… in relation to their employment. In advising Mary counsel finds that whilst the issue may seem straightforward, it is highly likely that the court will find that in lieu of the evidence provided which establishes Simon’s under performance and unruly behaviour that adverse action was taken on the premises of his underperformance. Counsel, will also argue

that whilst it was his right to make a complaint, as courts have taken a broad interpretation of this right (See Walsh v Greater Metropolitan Cemeteries;
Reverse Onus of Proof
In determining whether adverse action has in fact occurred we must first turn to s 361 of the FWA which prescribed that “reason for action to be presumed unless proved otherwise. So s361 (b) explicitly states that “it is presumed, in proceedings arising from the application that the action was, or is being taken for that reason or with that intent, unless the person proves otherwise.” In this instance, Mary bears burden of proof- thus she must prove that the reason for Simon’s dismissal was not related to his exercise of his workplace right in accordance with s341 (1) and 341(2). If Mary is able to prove that the action taken was not adverse in nature than in accordance with the authority Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) counsel argues that in fact Mary’s ‘reasons for taking the action was legitimate’ and thus that the claim of adverse action will not suffice. The court in that case held that “the state of mind or subjective intention of [the decision maker (Mary)]… will be centrally relative but not decisive. This issue will be examined in the paper’s argumentation. Secondly, and importantly whilst the facts of this case and the present scenario as distinguishable on facts, nonetheless the court outlined a test which stated requires the investigation of whether “the reason for the dismissal was the operative or immediate reason and need not be the sole or dominant reason.”
Is Simon an employee?
Yes, in accordance with s380 and s14 of the FWA Simon is indeed a national system employee and Mary is a national system employer.
Thus the pivot on which Simon’s case rests is that under s340 he has a the right to not have adverse action taken against him (340(1)) because he has a workplace right which he exercised (340 (a)(i) (ii). However, counsel for Mary will maintain the argument that the dismissal was in lieu of underperformance and not the exercise of a workplace right.
Has adverse action occurred?
This is a straightforward issue; in accordance with s342(1) Mary has taken adverse action against Simon in light of the fact that he has been dismissed.
Was Jack’s exercise of his workplace right the reason for his dismissal?
Counsel for Mary argues that his exercise of his workplace right was not the reason for his dismissal- arguments and counter-arguments will be considered.
a) “Ability to make a Complaint of inquiry”
Notably, counsel for Simon will argue that in accordance with s341 Simon has faced adverse action due to the fact that he exercised his right to “make a compliant or inquiry” (s341). Counsel for Simon will argue that as result of Mary and Jacks’ relationship the complaint that he made was not taken seriously and that his dismissal was unethical as his concerns regarding the issue of probity were ignored.
In Walsh v Greater Metropolitan Cemetries Trust [no 2] Justice Bromberg held that the only instance in which a broad interpretation of “the phrase ‘in relation to his or her employment is to be imposed it need to be found in the nature and purpose of the legislation…” Clearly, in this instance counsel for Mary finds that in this instance, a broad interpretation of the right to make a complaint is valid, as analogous to the scenario in Walsh where it was held that “the relationship need not be direct it may be direct.”
Turning now to this issue of probity; the same issue was raised in Walsh case and indeed she had the right to raise it otherwise it may have reflected badly on her integrity as an employee. However, the issue of probity like that in Walsh case is too far removed from the decision to dismiss.
b) Reason for Dismissal
In Bendigo’s case it was held “the state of mind or subjective intention of [the decision maker (Mary)]… will be centrally relative but not decisive.” So, in this instance it seems that Mary’s enraged behaviour at the complaint made by Simon may have arguably led to his dismissal. However, counsel for Mary seeks to advise that her decision were undertaken in a state of reckless whim, rather evidence suggest that Simon’s inappropriate behaviour and under performance was the reason for his dismissal. This of course is analogous with Ms Walsh’s case as she was dismissed because of her underperformance.
However, an issue which arises is that unlike Walsh’s case in this instance Simon’s complaint was not investigated, however, counsel finds that his complaint lacked reasoning and was made out of sheer frustration which served to attach the character and integrity of another individual.

Was “the reason for the dismissal was the operative or immediate reason and need not be the sole or dominant reason.”
With regard to the discussion above, the test for causation as established by Bendigo’s case is whether the reason for the dismissal was the operative reason.

Prima facie, on balance evidence proves that his dismissal was in light of his underperformance. As such the Mary has proven that ‘simon’s rude, confrontational and cooperative behaviour has lead to the occurrence of his dismissal. Moreover, the dismissal was also legitimate as Simon was under performing. The court in this instance will most likely find that even though Mary said that one of the reasons she dismissed him was because of the complaint he made in regards to Jack, hwoever, obviously that was not the ‘sole or dominant reason.’ This statement by Mary does not on balance have the strength to prove that adverse action in fact

occurred.
The operative reason for his dismissal was his underperformance.

Question 2:
Whether sending off the revised offer directly to the employees home and putting the proposed agreement to ballot is likely to constitute a breach of s228(1)
The scenario here is quite similar to the authority Construction, Forestry, Mining and Energy Union v Tahmoor – as that authority also involved the issue of whether a ballot held that legitimate in light of good faith bargaining requirement.
Counsel for Michelle is faced with the issue of whether Michelle’s action were in compliance with good faith Bargaining requirements. Undeniably, the Union will put forth the argument that in accordance with s 228(e) Michelle’s conduct was “unfair / capricious and undermined the freedom of association or collective bargaining ability of the Union.”
Was the Union a legitimate bargaining representative?
Yes subject to section s173.

Also, the scenario has indicated that the Bank complied with the provision set forth under 181 regarding application process, so the nature and circumstance in which the ballot was put to the members is not questionable.
Was Michelle’s act of act of sending the revised offer directly to the employees homes and putting it to a ballot a breach of the good faith bargaining requirements?
Counsel for Michelle insists that in this instance in accordance with the judgement in Tahmoor’s case that in fact there was no breach as in that case “we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time". Thus in applying this judgement evidently, my client did not act deceptively as in the facts it has been disclosed that “all of the employees, including those who has participated in negotiations on behalf of the Union” that the Bank would be “increasing its offer” and it also informed everyone that the offer will be sent to the employees homes.” In light of this it is highly unlikely that the argument that the bank acted unfairly or capriciously will suffice as the union was well-informed of the Bank’s actions. Thus the requirement that “disclosing relevant information… in a timely manner has been adhered

to.
Was genuine consideration to the proposals of other bargaining representatives given?
Based on facts,

CONCLUSION

Question 3: 10 Marks
In considering that the FWC has already approved of the proposed enterprise agreement then this analysis will not deal with the specific of what constitutes a good enterprise agreement. The overarching issue is whether Harrison Confectionaries can Cash out paid personal leave (s100). Counsel advises that in accordance with the following argumentation that it is possible to cash out paid personal leave.
Which group of employees will this provision apply to?
In accordance with s95 of the FWA that it will apply to “to employees, other than casual employees” so it applies to permanent employees.

Better off Overall Test
Prima facie, in accordance with s193(7) that considering that the employees are already paid in excess of what is required by the modern award- the cashing in of paid personal leave will put them in a better off overall position as their pay will be increased substantially.
Cashing out leave:
In accordance with s100 of the FWA “ Paid personal leave must not be cashed out , except in accordance with cashing out terms included in a modern award or enterprise agreement in section 101. Thus as highlighted by Steward in the prescribed text book such conditions means that “ each cashing out must be by a separate written agreement , and that the employee must always retain a balance of 15 days untaken leave.”
Restrictions on cashing out
Markedly, section 93(2) in addition to the restriction outlined directly above sets out that in determining it policy for cashing out paid personal leave it must ensure that “paid annual leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid annual leave being less than 4 weeks” (93 2(a)) is compromised. The second compulsory factory is established by 93 (2)(c); the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.” Clearly, the employee under Harrison’s agreement will be entitled to more pay than what the employee would have been paid under the modern award. However, Harrison must ensure that the requirement of section 93(2)(a) is met in its entirety otherwise the company will not be able to insert the clause.
As a means of procedure, this paper assumes that the negotiations were made with a bargaining representative as it states that “all other necessary requirements to obtain Fair work approval have been met.”
Conclusion