Scard v Bairnsdale Regional Health Service

The Applicant, a part-time Speech Pathologist, brought proceedings against the Respondent, Bairnsdale Regional Health Service, alleging adverse action in contravention of the Fair Work Act 2009 (Cth). The Applicant's employment was for a 12-month parental leave vacancy and included a three-month probation period. The dispute centred on the Applicant's claims regarding mandatory attendance at East Gippsland Graduate Support Program (EGGSP) meetings, a complaint about the rejection of her request for time off in lieu for attending these meetings, the extension of her probation period, and her subsequent dismissal.

The Court was required to determine whether the Applicant had reasonable prospects of succeeding in her claims concerning the extension of her probationary period and her dismissal. Specifically, the Court needed to assess if the extension of probation was a result of complaints made by the Applicant, and if her dismissal constituted adverse action taken because she had exercised a workplace right to make inquiries or complaints. The Court also considered the Applicant's claim that the EGGSP meetings were mandatory and that she was entitled to time off in lieu for attending them.

McNab J found that the Applicant had no reasonable prospects of succeeding in her claim that the extension of her probationary period was adverse action taken because she complained about the extension itself. The Court reasoned that the Applicant's pleadings indicated her complaint was made after she was informed of the decision to extend her probation, thus negating the causal link required for such a claim. Similarly, the Court concluded the Applicant had no reasonable prospect of succeeding in her dismissal claim. However, the Court determined that the Applicant's claim regarding the EGGSP meetings, and her entitlement to time off in lieu, involved disputed factual issues and therefore should not be summarily dismissed.

Consequently, the Court dismissed the Applicant's claims relating to the probationary period extension and dismissal. The Court ordered that the Applicant's EGGSP claim be listed for a final hearing on that discrete issue, with Ms Kelly to be made available to give evidence. The hearing was to be conducted via Microsoft Teams.