Chrysovergi v Hellenic Museum

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHRYSOVERGI v HELLENIC MUSEUM [2012] FMCA 248

INDUSTRIAL LAW – Alleged dismissal for prohibited reason – applicant asserting dismissal because she had lodged a WorkCover claim – respondent asserting dismissal for poor performance – misconduct – case turning wholly on its facts – application dismissed. 

Fair Work Act 2009

Stephens v Australian Postal Corporation [2011] FMCA 448

Applicant: STYLIANI CHRYSOVERGI

Respondent: HELLENIC MUSEUM

File Number: MLG 848 of 2011

Judgment of: Burchardt FM

Hearing dates: 20 & 21 February 2012

Date of Last Submission: 21 February 2012

Delivered at: Melbourne

Delivered on: 4 April 2012

REPRESENTATION

Counsel for the Applicant: Mr. B. Shaw

Solicitors for the Applicant: Z N Zigouras & Co. Lawyers

Counsel for the Respondent: Ms R. Sweet

Solicitors for the Respondent: Blue Rock Law

ORDERS

1. The application be dismissed. 

2. The Applicant pay the Respondent’s costs. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 848 of 2011

STYLIANI CHRYSOVERGI

Applicant

And

HELLENIC MUSEUM

Respondent

REASONS FOR JUDGMENT

1. In this application, Ms Chrysovergi seeks compensation in the sum of $200,000 (as itemised in the application) together with “penalties for the Court to decide”. 

2. The application alleges dismissal in contravention of a general protection, and the general protection is the applicant’s dismissal on

   
   

   14 April 2011, “two days after notifying my employer of an application to WorkCover on the 12 April 2011.” 

3. The application expressly relies upon ss.340, 341, 342, 343, 352 of the Fair Work Act 2009 (“FW Act”).

4. Since ss.340, 343 and 352 are all civil penalties provisions, I infer in the applicant’s favour that she seeks both the damages she has claimed and the imposition of civil penalties for contravention of those provisions.

5. The respondent concedes that the notification by the applicant of a WorkCover claim is capable, at least in principle, of establishing a workplace right (see Stephens v Australian Postal Corporation [2011] FMCA 448 per Smith FM at [19]).

6. The respondent says, however, that there was no contravention in the dismissal because it arose not because of the notification of a WorkCover claim, nor because of a temporary absence through illness or injury, but rather it was effected because of inadequate work performance and misconduct on Ms Chrysovergi’s part. 

7. The respondent accepts that subject to some preliminary matters not put in issue, the respondent faces the onus of proving that its actions were not for a prohibited reason, but says it has satisfied this test. 

8. Although there is no shortage of authority about these sorts of matters, because of the nature of the facts of the case it will not be necessary for the Court to refer very extensively, if at all, to those authorities.  This case turns squarely on its facts. 

9. Although the facts in the case are to an extent in dispute, much of what occurred is all too easy to work out because of the dynamic between the parties.  The relevant factual history is as follows. 

10. The Hellenic Museum was established in 2008 by Spiros…