Begley v Austin Health - [2013] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEGLEY v AUSTIN HEALTH

[2013] FMCA 68

INDUSTRIAL LAW – Adverse action claim – whether employee sought to exercise a workplace right – whether applicant raised her classification with employer – whether applicant’s redundancy a sham – whether applicant’s dismissal resulted from classification dispute in any event.

Fair Work Act 2009 (Cth), ss.340, 341, 360, 361
Workplace Relations Act 1996

The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Applicant:

JACQUELINE BEGLEY

Respondent:

AUSTIN HEALTH

File Number:

MLG 2 of 2012

Judgment of:

Burchardt FM

Hearing dates:

11, 12, 13 & 14 December 2012

Date of Last Submission:

14 December 2012

Delivered at:

Melbourne

Delivered on:

7 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Addison

Solicitors for the Applicant:

Maddison & Associates

Counsel for the Respondent:

Mr Forbes

Solicitors for the Respondent:

Lander & Rogers Lawyers

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 2 of 2012

JACQUELINE BEGLEY

Applicant

And

AUSTIN HEALTH

Respondent

REASONS FOR JUDGMENT

Introductory

The applicant, Ms Jacqueline Begley, worked for Austin Health and various predecessor bodies from March 1992 until 2011. Her employment ceased according to the respondent because her position had been made redundant.
The applicant says that the redundancy was a sham and that she was dismissed because she had pressed issues with management about her level of classification.
For the reasons that follow, I think that although Ms Begley was very unfairly dealt with, I do not think she was dismissed because she had pressed matters to do with her classification. The respondent wanted to dispose of Ms Begley’s services to save money and to apply the money saved, eventually, towards another position instead, that of records manager.
The case ran over a number of days and evidence was heard from two witnesses on behalf of the applicant and eight witnesses on behalf of the respondent. In order to put the dispute between the parties in its proper context in view of the fact that there are factual disputes between the parties, it is necessary, unfortunately, to paraphrase the evidence of the witnesses in some detail.

The Applicant’s Evidence-in-Chief

The applicant gave evidence that she is now employed as a supervisor at Kings Transport. It emerged in cross‑examination that she has been employed there for three months and that her salary is substantially lower than it was at Austin Health.
Ms Begley started work as an ordinary hand on 25 March 1992 and was subsequently transferred to the role of mail services clerk, a position she fulfilled until she was appointed a supervisor of mail services in 2004. She continued in that capacity until 2009.
In about September 2008 there was a review of mail and courier services which led to the formation of a manager’s position. This process appears to have involved external consultancy, and it should be noted that reviews, restructures and reorganisations appear to be very much the norm of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 68
Decision Date

CaseChat Overview and Summary

The applicant, Ms Jacqueline Begley, sought to establish that her dismissal from Austin Health was because she raised issues about her classification. The Federal Magistrates Court considered whether Ms Begley had sought to exercise a workplace right, and whether adverse action was taken against her for this reason. Ms Begley had raised her classification concerns with management and sought to be reclassified, which was a workplace right under the Fair Work Act 2009. However, the Court found that while Ms Begley was treated poorly during her dismissal, Austin Health had established that her dismissal was not for the reason that she raised classification issues. The decision to dismiss Ms Begley had been made prior to her raising the classification issues with any significance. Although some of the conduct during the dismissal process was inappropriate, it was not motivated by the classification issues. Therefore, the Court dismissed Ms Begley's application.

Orders