Kape v The Golden Mile Loopline Railway Society Inc

In Kape v The Golden Mile Loopline Railway Society Inc, the Federal Circuit Court dismissed an appeal brought by Mr Kape, who sought to challenge the dismissal of his employment by the respondent, the Golden Mile Loopline Railway Society Inc. Mr Kape argued that his dismissal was an adverse action, taken on the basis of a genuine redundancy, but that the redundancy was not genuine because it was a result of him raising health and safety concerns. The Federal Circuit Court upheld the dismissal of Mr Kape’s claim. The appeal was dismissed, and the Federal Circuit Court’s earlier decision was affirmed.

The primary legal issue in this case was whether the respondent had discharged the onus of proving that the redundancy was genuine under s 361 of the Fair Work Act 2009 (Cth). The court needed to determine whether the redundancy was for financial reasons, and whether the respondent had provided sufficient evidence to support the genuineness of the redundancy. The court also needed to consider whether Mr Kape’s termination was related to his raising health and safety concerns, which would constitute an adverse action.

The court found that the respondent had discharged its onus of proving that the redundancy was genuine. The evidence showed that by the last quarter of 2015, the Society had received funding for phase 1 of a project to build a loopline railway, but there was uncertainty as to whether funding for phase 2 and 3 of the project would be forthcoming. The number of hosted workers from the prison and social security programmes had dropped off significantly, leaving little work for Mr Kape to do. The Leading Hands were more than capable of doing his work because the workload was low. The Society’s finances were in a bad way, and making Mr Kape’s position redundant would have given the Society some breathing room in the short-term, and would have made room in the budget for a specialist person with rail construction experience to come on board and help out with Phase 2 once accreditation was obtained. The Executive had a conference call on 9 December 2015, and that is when the final decision was made to make Mr Kape’s position redundant.

The court found that the respondent had discharged its onus of proving that the redundancy was genuine. The court found that the evidence showed that the redundancy was for financial reasons, and that the respondent had provided sufficient evidence to support the genuineness of the redundancy. The court also found that Mr Kape’s termination was not related to his raising health and safety concerns. The appeal was dismissed, and the Federal Circuit Court’s earlier decision was affirmed.

The final orders of the court were that the appeal be dismissed. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.