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

FEDERAL COURT OF AUSTRALIA

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

Parties: MELINDA WALSH v THE GREATER METROPOLITAN CEMETERIES TRUST

File number: VID 674 of 2013

Judge: BROMBERG J

Date of judgment: 9 May 2014

Catchwords: INDUSTRIAL LAW – whether adverse action taken against employee in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) because employee exercised a workplace right to make a complaint in relation to her employment – meaning of complaint "in relation to employment" in s 341(1)(c)(ii) of the FW Act discussed – whether making of complaint was an operative factor in decision to dismiss the employee – dismissal for performance related reasons – making of complaint not a reason for dismissal – statutory presumption in s 361 of the FW Act displaced – application dismissed. PRACTICE AND PROCEDURE – application to re-open for the purpose of tendering new evidence – interests of justice as the guiding principle in determining whether to grant leave to re-open – whether the new evidence would be significant if admitted – application dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 340(1), 340(1)(a), 340(1)(a)(ii), 340(1)(a)(iii), 341(1), 341(c)(ii), 342, 360, 361

Cases cited: Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Rowland v Alfred Health [2014] FCA 2 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471