Walsh v Greater Metropolitan Cemeteries Trust

background facts 8 GMCT has been in operation since 2010. It is an amalgamation of eight former cemeteries trusts. It has responsibility for some 21 cemetery sites across Melbourne, of which 19 are operating cemeteries. It turns over approximately $50 million a year and undertakes burials, cremations and other memorial services for approximately 12,000 families per year. 9 Ms Walsh commenced her employment with GMCT on 24 September 2012. Her contract of employment specified her position as Manager-Client Services East although, as it turned out, she did not take up that position. Instead, she took up a role as a Client Services Manager and worked across various GMCT locations beyond those to the east of Melbourne. 10 Ms Walsh's contract of employment (contract of employment) specified her period of employment as commencing on 24 September 2012 and ending on 23 September 2015 unless sooner terminated. The contract of employment specified that the employment offered was subject to a probationary period of 6 months during which period Ms Walsh's performance would be assessed. The contract of employment provided that prior to or at the conclusion of the probationary period, GMCT would either confirm in writing the maximum term of the appointment or terminate Ms Walsh's probationary employment. Other provisions in the contract provided for termination by GMCT on two months' notice in writing and for summary dismissal for serious misconduct. 11 Jacqui Briggs-Weatherill is, and at the time of Ms Walsh's employment was, the Chief Executive Officer of GMCT. The decision to dismiss Ms Walsh from her employment was made by Ms Briggs-Weatherill. 12 Linda Dewar is currently the Director of Service Improvement and Corporate Development at GMCT. Ms Dewar was involved in recruiting and appointing Ms Walsh. During Ms Walsh's employment, Ms Walsh reported to Ms Dewar who, at that time, held the position of Director of Client Services. Ms Dewar was involved in the decision ultimately made by Ms Briggs-Weatherill. She recommended to Ms Briggs-Weatherill that Ms Walsh be dismissed. 13 Ms Sharon Dore is the HR Business Partner at GMCT. At the time of the dismissal of Ms Walsh she held the position of Acting Human Resources Manager. Ms Dore was consulted by Ms Briggs-Weatherill as to whether Ms Walsh's employment should be terminated and agreed that it should be. 14 Ms Jasmine Butler was the Executive Assistant to Ms Dewar and also held an operational role during some of the period of Ms Walsh's employment with GMCT. Ms Butler came into conflict with Ms Walsh and a number of the complaints made by Ms Walsh included allegations about Ms Butler's conduct.

consideration 15 The findings that the Court should make about the timing, nature and content of complaints made by Ms Walsh to GMCT were largely not in contest. Ms Walsh's evidence of the complaints made by her was not detailed. She tended to characterise the subject matter dealt with rather than provide the detail of what she actually said in making the complaint. Some of the evidence called by GMCT suffered from the same problem. To the extent that the evidence about the making of complaints given by Ms Walsh differed from that of Ms Dewar and Ms Briggs-Weatherill, I need not resolve any inconsistency. It is sufficient that the complaints made be characterised in general terms as nothing turns on the detail of those complaints. 16 The complaints made by Ms Walsh were made on two occasions. First, in a meeting between Ms Dewar and Ms Walsh held on 7 March 2013 and secondly in a meeting between Ms Walsh, Ms Briggs-Weatherill, Ms Dewar and Ms Dore held at about 1 pm on 12 March 2013. The matters raised by Ms Walsh by way of a complaint in each of those meetings may be characterised as follows: (i) at a Greek Orthodox memorial function held in late February 2013, a lack of GMCT staff raised workplace safety concerns and, as a result of self-catering by the attendees, unauthorised and unlawful service and consumption of alcohol and food occurred (the memorial function complaint); (ii) Alsco, a linen supplier to GMCT, was providing sub-quality service (the Alsco poor servicing complaint); (iii) Ms Butler's daughter worked for Alsco and, as a matter of probity, it was inappropriate for Ms Butler to be dealing with her daughter in relation to the Alsco contract (the Alsco contract complaint); and (iv) Ms Butler's attitude and behaviour towards Ms Walsh was inappropriate including because Ms Butler was undermining Ms Walsh in discussions with other staff (the complaint about Ms Butler); (collectively the complaints). 17 Ms Walsh's pleaded case alleged that the making by her of one or more of the complaints was a reason for her dismissal. That allegation having been raised, s 361 of the FW Act (in the context of the facts of this case) operates to create a presumption that Ms Walsh was dismissed including because of the making by her of one or more of the complaints. The onus is then cast on GMCT to prove otherwise. To displace the presumption, GMCT needed to establish that the making by Ms Walsh of one or more of the complaints was not a substantial and operative factor for dismissing her. The relevant authorities as to the operation of ss 360 and 361 of the FW Act are well known and need not here be recounted. They are discussed in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 at [154]-[158] (Bromberg J). 18 Ms Briggs-Weatherill was the person with ultimate responsibility for the decision to dismiss Ms Walsh. There was no suggestion made that she had merely endorsed the effective decision made by others to dismiss Ms Walsh. Accordingly, it is Ms Briggs-Weatherill's reasons for dismissing Ms Walsh which need to be examined. 19 Ms Briggs-Weatherill first became aware of the complaints when Ms Walsh raised them in their meeting of 12 March 2013. From Ms Briggs-Weatherill's perspective, the circumstances in which the complaints came to be made on 12 March 2013 were as follows. 20 After Christmas of 2012, Ms Briggs-Weatherill started to have concerns about Ms Walsh's performance. That arose because of observations made to Ms Briggs-Weatherill by Ms Dewar, by other managers at GMCT, and by reason of her own observations. 21 On 7 March 2013, Ms Briggs-Weatherill and Ms Dewar had a discussion in which Ms Dewar advised that she had met with Ms Walsh that day. Ms Dewar said she had a range of concerns about Ms Walsh and had come to the view that Ms Walsh's employment should not be continued beyond her probationary period of employment. Ms Dewar was directed by Ms Briggs-Weatherill to document her concerns. That was done by a letter to Ms Briggs-Weatherill of 10 March 2013. After receiving that document and on the morning of 12 March 2013, Ms Briggs-Weatherill had a discussion with Ms Dewar and Ms Dore and determined to meet with Ms Walsh later that day to inform her that her employment would not be continued. 22 At the meeting held at about 1.00 pm that day, having been told that GMCT was considering not continuing with her employment, Ms Walsh responded including by raising the complaints. 23 Having heard the complaints made by Ms Walsh, Ms Briggs-Weatherill decided to adjourn the meeting for a couple of hours so that she could investigate those complaints. In relation to the Alsco contract complaint, Ms Briggs-Weatherill spoke with Mr Bart Clingin, who was responsible for GMCT's financial arrangements. As a result, Ms Briggs-Weatherill came to the view that the Alsco contract was of low commercial value and that no probity issues arose in relation to it. Ms Briggs-Weatherill spoke to Ms Dewar about the memorial function. She came to the view that the matters raised by Ms Walsh were matters that Ms Walsh, as the manager who had responsibility for the memorial function, should have taken control of. 24 Although an attempt was made to reconvene the meeting with Ms Walsh later that afternoon, that did not occur because Ms Walsh did not attend. Later that day Ms Dewar stood down Ms Walsh from her employment. 25 By letter of 20 March 2013, the contents of which were approved by Ms Briggs-Weatherill, Ms Walsh was advised that her employment with GMCT was terminated with immediate effect. The letter referred to the meeting on Tuesday 12 March 2013. It stated that the reasons for GMCT's decision to terminate Ms Walsh's employment related to her poor performance and identified three issues as follows: 1. Your failure to develop a business plan of acceptable standard, despite repeated requests and assistance from colleagues and the Executive Manager Strategy and Planning; 2. Your failure to develop sales strategies for your area of responsibility and demonstrate the required skill levels in budget development; and 3. Your failure to take on a level of responsibility or to show leadership skills expected from your position. The letter confirmed that Ms Walsh would be paid her salary to 20 March 2013 and it is agreed that Ms Walsh's employment continued to that day. On termination, Ms Walsh was paid two months in lieu of notice. 26 Ms Briggs-Weatherill deposed that nothing raised by Ms Walsh in the meeting of 12 March 2013 concerned her enough to change her prior view that Ms Walsh's employment should not be continued. She deposed that she came to the view that Ms Walsh's employment should not be continued beyond her probationary period for three primary reasons. The first of those reasons was that she felt that Ms Walsh was not "a good cultural fit with the organisation". In that respect, Ms Briggs-Weatherill considered that Ms Walsh did not have the kind of team ethic and approach that GMCT was looking for. Secondly, Ms Briggs-Weatherill felt that there were shortcomings in regard to Ms Walsh's capacity to undertake budgets and prepare business plans. Ms Briggs-Weatherill considered that Ms Walsh was overly focussed on operational aspects of her job rather than the more strategic aspects of the job. She said that really concerned her. Thirdly, Ms Briggs-Weatherill said she was concerned with continued conflict between Ms Walsh and a variety of different staff. She said that issues "around interpersonal relationships" concerned her. She deposed that at the end of the day she just did not feel that it was in the best interest of GMCT to continue Ms Walsh's employment. 27 Asked if there were any other factors she had in her mind other than Ms Walsh's performance when she considered whether to continue Ms Walsh's employment, Ms Briggs-Weatherill said: No. The issues were around her performance which were around three things, as I said previously: conflict with others, lack of capacity to undertake the inherent roles and responsibilities of the position, and also her lack of cultural fit within the organisation. 28 It was not submitted on behalf of Ms Walsh that the evidence given by Ms Briggs-Weatherill was insufficient to negate the making of the complaints as a reason for her dismissal. In my view, the evidence given by Ms Briggs-Weatherill was sufficient to amount to a denial by Ms Briggs-Weatherill that the making of the complaints was an operative reason for the decision to dismiss Ms Walsh. 29 Whilst some attempt was made to impugn the validity of Ms Briggs-Weatherill's views about Ms Walsh's performance, it was not Ms Walsh's case that the performance based reasons given by Ms Briggs-Weatherill for the dismissal were not genuinely held by her. Ms Walsh's case was that whilst there may have been performance based reasons held by Ms Briggs-Weatherill, an additional reason was the complaints made by Ms Walsh. 30 In the face of Ms Briggs-Weatherill's denial that the making of the complaints were any part of her motivation, for Ms Walsh to succeed, I would need to be satisfied that Ms Briggs-Weatherill's evidence as to her reasons for dismissing Ms Walsh was not credible and should not be accepted. The basis upon which it was suggested I should come to that view was twofold. First, it was said that no performance issues had been raised with Ms Walsh prior to 7 March 2013 and that the timing of the dismissal was coincidental with Ms Walsh's complaining. Secondly and somewhat relatedly, it was submitted that as at 12 March 2013, Ms Walsh was "making a pest of herself" and by her complaining was regarded as "too much trouble". 31 As to the latter assertion, it was not put to Ms Briggs-Weatherill (or any other of GMCT's witnesses) that a view was held that Ms Walsh was troublesome and a pest because she made the complaints. Further, there was no history of Ms Walsh having been a serial complainer of any sort and no evidence of anyone characterising her as such. On the evidence, the first time Ms Briggs-Weatherill was aware that Ms Walsh had complained about anything at all was at the meeting of 12 March 2013. Ms Briggs-Weatherill's reaction was not dismissive, as might have been expected if Ms Briggs-Weatherill had regarded Ms Walsh to be a troublesome complainant. To the contrary, Ms Briggs-Weatherill took responsive action and investigated those complaints which raised her concern. Nothing in Ms Briggs-Weatherill's reaction to the complaints made by Ms Walsh suggested that she regarded Ms Walsh to be a troublesome employee whose complaining behaviour should be a reason for her dismissal. 32 As to the timing of the decision to dismiss Ms Walsh, whilst it may have seemed to Ms Walsh to be coincidental with her complaining and therefore a reason for her dismissal, the timing was more likely to be motivated by the fact that by 24 March 2013, Ms Walsh's probationary period would end and therefore there was an imperative that, prior to that date, GMCT review her performance and decide whether she should be dismissed or continued in her employment. The evidence of Ms Briggs-Weatherill, Ms Dewar and Ms Dore was to that effect. 33 I found Ms Briggs-Weatherill to be a credible witness whose evidence was cogent and consistent. The performance related reasons she gave for Ms Walsh's dismissal were conceded to be genuine. There is no basis upon which I should reject Ms Briggs-Weatherill's evidence that Ms Walsh was dismissed for performance related reasons and not by reason of the complaints she made. Ms Walsh's assertion that GMCT was motivated to dismiss her for her complaining was not supported by the evidence and amounted to no more than unsubstantiated speculation. 34 In reaching that conclusion, I have taken into account the evidence given by both Ms Dewar and Ms Dore. Ms Dewar had significant input into the decision made by Ms Briggs-Weatherill. Ms Dore was also consulted. Their evidence served to negate the prospect that Ms Briggs-Weatherill's decision may have been tainted by the involvement of persons who were motivated to dismiss Ms Walsh because she had made the complaints. 35 Ms Dewar gave her reasons for supporting Ms Walsh's dismissal as relating to three key areas of concern. First, she felt that Ms Walsh had over represented her skills when she first applied for the position. Secondly, in her view, Ms Walsh demonstrated an inability to develop appropriate business plans and budgets. Thirdly, Ms Dewar was concerned with Ms Walsh's capacity to make decisions and provide strategic leadership. In addition, Ms Dewar referred to an instance of Ms Walsh's behaviour which was of significance to her view. On 7 March 2013, in a meeting with Ms Walsh in which both performance concerns and the complaints were raised, Ms Dewar said that she had received a complaint that Ms Walsh had berated Ms Butler in front of other staff. Ms Walsh had, a day or so earlier, attended a training program on dealing with bullying behaviour. During that program it was suggested that it was inappropriate to berate a colleague in public. Ms Dewar referred Ms Walsh to that training and accused her of doing exactly what she had been trained not to do. Ms Walsh acknowledged that she needed to apologise for her behaviour. She stated that she would apologise to the staff who had witnessed her behaviour towards Ms Butler. When asked by Ms Dewar whether she would apologise to Ms Butler, Ms Walsh said that there was no need. Ms Dewar deposed that she could not reconcile the fact that whilst Ms Walsh recognised her behaviour warranted an apology to the staff who had observed it, she was not prepared to apologise to Ms Butler. 36 Ms Dewar denied that the complaints were in her mind when she made the recommendation to Ms Briggs-Weatherill that Ms Walsh's employment should be terminated. She deposed that she did not have any other reason when making that recommendation beyond those given in her evidence. Ms Dewar expressly denied that Ms Walsh was dismissed by reason of Ms Walsh making the complaints. 37 Ms Dore deposed that she agreed with Ms Dewar and Ms Briggs-Weatherill that Ms Walsh should be dismissed. She said that her agreement to the dismissal was based on Ms Walsh's performance. She said that she had spoken to managers, had made her own observations and that she did not think that Ms Walsh fitted the organisation or the role she was doing. Ms Dore denied that any complaints from Ms Walsh had been made to her. She deposed that her agreement to Ms Walsh's employment not continuing was totally based on Ms Walsh's performance. 38 Both Ms Dewar and Ms Dore gave cogent evidence as to their reasons for supporting the termination of Ms Walsh's employment. Their evidence negated the allegation made that they were motivated to have Ms Walsh dismissed because of the making of the complaints. Their evidence reinforced my conclusion that the evidence of Ms Briggs-Weatherill as to why Ms Walsh was dismissed should be accepted. 39 For all those reasons, I am satisfied that Ms Walsh was not dismissed from her employment including because she had made the complaints. The presumption raised by s 361 of the FW Act was therefore displaced. 40 One further matter that I need to address is GMCT's contention that the Alsco contract complaint is not a complaint in relation to Ms Walsh's employment. I have determined that issue in Ms Walsh's favour, although for the reasons explained above, that complaint was not a reason for Ms Walsh's dismissal. 41 The words "in relation to" are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant's employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J's observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase "in relation to his or her employment" is to be imposed, it needs to be "found in the nature and purpose of the legislation, which includes the protection of workplace rights". 42 Where the subject matter of the complaint raises an issue with potential implications for the complainant's employment, it is likely that the requisite nexus will be satisfied: Pilbara at [69]. 43 In this case, Ms Walsh raised a probity issue in relation to a contract with a supplier who supplied services including to an operation which Ms Walsh managed in the course of her employment. Whether or not Ms Walsh was under a contractual duty to report the possible misdeed of others (see the discussion in Irving, The Contract of Employment (LexisNexis Butterworths, 2012) at [7.21]), her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, the Alsco contract complaint made by Ms Walsh raised an issue with potential implications for Ms Walsh's employment and was "in relation to…her employment" within the meaning of s 341(c)(ii) of the FW Act. 44 In determining the construction issue raised here, I have considered but have not been persuaded by GMCT's reliance upon Rowland v Alfred Health [2014] FCA 2. In that case, Marshall ACJ determined that a complaint made by a doctor about the competency of another doctor with whom he worked was not a complaint in relation to the complainant's employment. Whether the clinical competence of the doctor complained about had potential implications for the employment of the complainant is not a matter that appears to have been raised before or addressed by Marshall ACJ. His Honour does not appear to have been referred to Pilbara and did not have the benefit of Shea. A contention that an indirect nexus would be sufficient does not appear to have been relied upon by the applicant in that case. Further, his Honour's conclusion seems to turn on a factual dispute as to whether the relevant complaint related to the complainant's employment because it also included a complaint that the doctor concerned had taken a patient from the complainant: see Rowland at [29]-[38].

ms walsh's application to re-open 45 On 16 April 2014, some seven days after I reserved my judgment, the applicant applied to re-open her case for the sole purpose of tendering a photograph taken from her mobile phone of an email notification to her of a proposed meeting in Ms Dewar's office at 4 pm on 12 March 2013 (the new evidence). That application was opposed. After considering the affidavit material relied upon by Ms Walsh and the written submissions of the parties, on 6 May 2014, I determined to reject the application for the reasons that follow. 46 In rejecting the application, I accepted the evidence of Ms Walsh that her failure to produce and tender the new evidence was due to an explicable failure to locate the evidence prior to trial. I was therefore prepared to accept the submission that the failure to tender the new evidence at trial was inadvertent. I was also prepared to accept the submission made for Ms Walsh that the application to re-open was of limited scope and that the failure of GMCT to have discovered a copy of the email notification may well have been a contributory factor. 47 I did not accept Ms Walsh's submission that there would be no prejudice to GMCT. A re-opening would have likely led to further significant costs being incurred by GMCT in circumstances where those costs may not be recoverable. However, even if I had accepted that GMCT would suffer no prejudice, I would have nevertheless rejected Ms Walsh's application. 48 The principle that should guide the Court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 (Clarke JA at 478, with whom Mahoney JA and Meagher JA agreed). In that regard, and as Ms Walsh's submissions recognise, the significance of the new evidence is a crucial factor. Ms Walsh submitted that there were three reasons why the new evidence was significant. In my view, each of the asserted reasons is misplaced. To explain why that is so, it is necessary to briefly explain the content of the new evidence and the issue to which it would be relevant if it were tendered. 49 Ms Walsh's evidence was that on the morning of 12 March 2013, she was really concerned with the situation in the office and that accordingly, she went straight to HR and asked for a meeting for later that day. She said that she asked Ms Dewar to organise a meeting and that Ms Dewar scheduled the meeting in "the Outlook diary" for 4 pm that day. The meeting was to be held with Ms Dewar, Ms Dore and herself. Although Ms Walsh stated that the reason she wanted the meeting was to discuss her complaints, she did not give evidence that the reason was communicated to Ms Dore. Ms Dore denied that Ms Walsh had requested a meeting with her in the morning of 12 March 2013. When told that Ms Walsh would give evidence to that effect, she said that the meeting request had been made on 8 March 2013 through another HR officer. She said that she did not know what that meeting was to be about. She was available to conduct it at 3.30 pm on 8 March 2013 but Ms Walsh was unavailable. The meeting needed to be rescheduled but Ms Dore stated that she did not get to reschedule it. When it was put to Ms Dore that Ms Walsh's evidence would be that she confirmed the meeting time for 12 March 2013 by her Outlook calendar, Ms Dore said that she did not have any meeting time in her Outlook calendar. 50 It was put to Ms Dewar in cross examination that Ms Walsh requested a meeting with her on 12 March 2013. Ms Dewar said that Ms Walsh did not request a meeting with her. She said she had no meeting request from Ms Walsh for 12 March 2013. 51 The new evidence, if it had been admitted, would have supported Ms Walsh's evidence that a meeting had been scheduled for her with Ms Dewar to take place at 4 pm on 12 March 2013. 52 The first basis relied upon by Ms Walsh as supporting the significance of the new evidence was that the new evidence enabled an inference to be drawn that GMCT acted to dismiss Ms Walsh in order to avoid Ms Walsh exercising her workplace right to complain and restating her complaints at the meeting scheduled for 4 pm on 12 March 2013. As GMCT correctly submitted, Ms Walsh did not plead and did not pursue her case on the basis she was dismissed including because she proposed to exercise a workplace right by making a complaint. Ms Walsh did not rely upon s 340(1)(a)(iii) of the FW Act. Her case was based upon s 340(1)(a)(ii) and the exercise by her of her workplace right to make a complaint. Furthermore, Ms Walsh did not even plead the material fact (the fact that a meeting at which Ms Walsh would make a complaint was known to GMCT and had been scheduled) upon which she now seeks to rely. 53 Nor would the Court's acceptance of that fact have led me to a different conclusion on the case as pleaded. On the totality of the evidence, I would not have accepted that Ms Briggs-Weatherill was motivated to dismiss Ms Walsh in order to avoid providing Ms Walsh with an opportunity to complain. In that respect, I note that when Ms Walsh raised her complaints at the 12 March 2013 meeting held at about 1 pm, she was not only heard as to her complaints but the meeting was adjourned so that her complaints could be investigated and considered. 54 The second basis relied upon by Ms Walsh in support of her submission that the new evidence was significant was that the acceptance by the Court of the new evidence would impugn the credit of both Ms Dore and Ms Dewar. However, it was Ms Briggs-Weatherill who made the decision to terminate the employment of Ms Walsh. There is no suggestion that the new evidence would serve to impugn the credibility of Ms Briggs-Weatherill or that its acceptance could plausibly lead to a finding that Ms Briggs-Weatherill was motivated to dismiss Ms Walsh including because she had made the complaints. 55 Lastly, it was submitted by Ms Walsh that the new evidence was critical to Ms Walsh's credit. However, Ms Walsh's credit is not an issue on any matter necessary to my determination of her case. As my reasons demonstrate, I have not made any findings reliant upon or influenced by a view formed about Ms Walsh's credit. 56 For those reasons, I did not consider that the new evidence which Ms Walsh sought to tender on a re-opening of her case would have significance for the determination of her claim. To permit Ms Walsh to re-open for that purpose would have been a futile exercise. For those reasons, I determined that the interests of justice would be better served by rejecting Ms Walsh's application to re-open her case.

orders 57 In light of the findings I have made, I will make an order dismissing Ms Walsh's application. GMCT has not sought an order for its costs and no such order will be made. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.