Milonas v Monash Health - [2024] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0019

VIVIAN MILONAS	Applicant
v
MONASH HEALTH	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2024
DATE OF JUDGMENT:	8 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 57
JUDGMENT APPEALED FROM:	[2022] VCC 1964 (Judge Pillay)

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EMPLOYMENT – Summary dismissal – Applicant dismissed following finding of serious and wilful misconduct – Applicant accused of falsifying timesheets – Whether trial judge erred in making finding that applicant submitted fraudulent timesheets – No error in reasoning of trial judge – Application for leave to appeal refused.

EVIDENCE – Whether trial judge failed to consider medical evidence of applicant’s cognitive impairment – Whether trial judge’s consideration of the evidence of the applicant was erroneous – No error demonstrated – Fox v Percy (2003) 214 CLR 118, Stevens v DP World Melbourne Ltd [2022] VSCA 285, SS Hontestroom v Sagaporack [1927] AC 37, Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842, Devries v Australian National Railways Commission (1993) 177 CLR 472, Lee v Lee (2019) 266 CLR 129, Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, s 140(2) Evidence Act 2008, referred to – Application for leave to appeal refused.

CONTRACT – Whether Code of Conduct and Enterprise Agreement incorporated into contract of employment – Whether incorporated terms breached by employer in failing to provide procedural fairness to employee – No such terms found to be incorporated – No breach of terms found – Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327, Byrne v Australian Airlines Limited (1995) 185 CLR 410, Vision Australia Ltd v Elisha [2023] VSCA 265, referred to – Application for leave to appeal refused.

NEGLIGENCE – Whether employer owed duty of care to employee in relation to investigation and determination of employee’s alleged misconduct – No such duty of care owed – No breach of duty of care found – State of NSW v Paige (2002) 60 NSWLR 371, Shaw v State of NSW [2012] NSWCA 102, Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, Irving & Ors v Kleinman [2005] NSWCA 116, Sullivan v Moody (2001) 207 CLR 562, Potter v Gympie Regional Council [2022] QCA 255, Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, Briginshaw v Briginshaw (1938) 60 CLR 336, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, MH6 v Mental Health Review Board (2009) 25 VR 382, Public Service Board (NSW) v Osmond (1986) 159 CLR 656, White v Ryde Municipal Council [1977] 2 NSWLR 909, Health Services Act 1988, pt 3.2 Fair Work Act 2009 (Cth), O 56 Supreme Court (General Civil Procedure) Rules 2015, referred to – Application for leave to appeal refused.

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: [2024] VSCA 57
Decision Date: 8 April 2024

CaseChat Overview and Summary

The case of Milonas v Monash Health involved an employment dispute where the applicant, Milonas, was dismissed following an allegation of serious and wilful misconduct, specifically for falsifying timesheets. The dispute reached the Supreme Court of Victoria, where the primary judge dismissed Milonas’ application for judicial review of her dismissal. The applicant sought leave to appeal this decision. The central legal issues before the court were whether the trial judge erred in finding that Milonas submitted fraudulent timesheets, whether the trial judge failed to consider relevant evidence of Milonas' cognitive impairment, whether the employer breached any incorporated terms of the employment contract by not providing procedural fairness, and whether the employer owed a duty of care to Milonas in the investigation of the alleged misconduct.

The court thoroughly examined the evidence presented, focusing on the accuracy of the record of the interviews and the content of the meetings where the allegations were discussed. The court found no error in the trial judge’s assessment of the evidence, particularly in favouring the employer's version of events over Milonas’ account. Regarding the cognitive impairment, the court held that the trial judge had not failed to consider this evidence but rather evaluated it within the appropriate legal framework, concluding that no error was demonstrated. The court also determined that the terms of the Code of Conduct and Enterprise Agreement were not incorporated into the employment contract, and thus, no breach of those terms was found. Finally, the court ruled that no duty of care was owed by the employer to the employee in the context of the investigation, as the employer's actions did not breach any such duty.

The application for leave to appeal was refused by the court, as the applicant failed to demonstrate any error in the primary judge's reasoning or findings. The court upheld the original decision, affirming the dismissal of Milonas for serious and wilful misconduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This proposed ground fails.The judge’s conclusion as to the nature and scope of the duty of care owed by Monash to Ms Milonas and whether it had been breached (proposed ground 6) We have set out the evidence relevant to the conduct of the investigation at [111]–[119] above. The judge made the following findings of fact. As to the 16 May 2013 meeting, the judge accepted the evidence of Ms McNulty over that of Ms Milonas and found that, as foreshadowed in the letter and recorded in the record of interview, the meeting between Ms Milonas, Ms McNulty and Mr Willmott occurred on that day.[74] His Honour also found that the record of the interview[75] (set out at [115] above) accurately recorded the content and conduct of that meeting.[76][74]See Reasons, [52]–[53].[75]Reasons, [53].[76]Reasons, [61]. As to the 20 May 2013 meeting, his Honour rejected the evidence of Ms Milonas. He again accepted the evidence of Ms McNulty and Mr Wilmott. He also accepted that the record of this meeting (set out at [118] above) was accurate. The judge made the following findings:Specifically, I find that, at the meeting on 20 May 2013, Ms Fegan was present as a representative of Ms Milonas. I find that the meeting occurred in Ms McNulty’s office with Ms Fegan, Ms Milonas, Ms McNulty and Mr Willmott. I find that Ms Milonas did not present any further evidence to support the alleged agreement or to deal with the allegations made against her. I find that Ms McNulty and Mr Willmott explained to Ms Milonas the findings of their investigations, and the fact that they considered timesheet fraud had occurred. I find they informed her, at that time, that she would be terminated for serious and wilful misconduct based on the timesheet fraud. I find that they applied the balance of probabilities to the Briginshaw standard in making their assessment. As a result of this, Ms Milonas was visibly upset and Mr Alfred Matthews was called to come and collect her. He did so and she was escorted to her office. In fact, this is a further matter which tells against acceptance of the Plaintiff’s evidence. Mr Matthews’ evidence was that he escorted Ms Milonas to her office to collect her things. He said this was done in an unhurried manner and he gave her what time she needed. This stands in contrast to the Plaintiff’s evidence, which was that she was told to get out and could not even collect her things.[77][77]Reasons, [62]. The judge then turned to the question of the existence of duty. He noted that counsel for Ms Milonas framed the duty in the following way in the closing written submissions: ‘[Did Monash owe a] duty of care to provide a safe system of work in the undertaking of the investigation into alleged misconduct by the Plaintiff’.[78] His Honour also observed that the second amended statement of claim was silent as to a specific formulation of the duty.[79][78]Reasons, [64].[79]Reasons, [65]. At this level, his Honour considered that the claim failed because it was incumbent upon Ms Milonas to identify the content of the duty and the plaintiff had not adequately identified the duty of care with the specificity required in either in the pleadings or in submissions.[80][80]Reasons, [72] citing Irving & Ors v Kleinman [2005] NSWCA 116, [31].

Ratio Decidendi

Legal Principle Established

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