Mishra v Monash Health

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mishra v Monash Health [2022] FedCFamC2G 240

File number(s): MLG 370 of 2021
Judgment of: JUDGE MCNAB
Date of judgment: 5 April 2022 
Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action – whether putting was adverse action – stand down from employment – dismissal – whether investigation of allegations of misconduct so defective that the Court should find the reverse onus under section 361 of the Fair Work Act has not be discharged – breach of enterprise agreement.
Legislation:

Fair Work Act 2009 (Cth) ss 50, 323(1), 340(1), 342, 352, 546(1).

Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020 cl 25.1.

Cases cited:

Australian and International PilotsAssociation v Qantas Airways Ltd [2006] FCA 1441.

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

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17.

Green v Preston Motors Pty Ltd[2022] FedCFamC2G 205.

Jones v Queensland Tertiary Admissions Centre (No.2) [2010] FCA 399; (2010) 196 IR 241.

Khiani v Australian Bureau of Statistics[2011] FCAFC 109.

Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156.

Police Federation of Australia v Nixon[2008] FCA 467; (2008) 168 FCR 340.

Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415.

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.

The Environmental Group Ltd v Bowd [2019] FCA 951
Division: Division 2 General Federal Law
Number of paragraphs: 88
Date of last submission/s: 15 March 2022
Date of hearing: 7-9 February 2022 & 16 March 2022
Place: Melbourne
Counsel for the Applicant: Mr G Lake
Solicitor for the Applicant: Jewell Hancock Employment Lawyers
Counsel for the Respondent: Mr J Tracey
Solicitor for the Respondent: Victorian Government Solicitor’s Office

ORDERS

MLG 370 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS TARAKUMARI MISHRA

Applicant
AND:

MONASH HEALTH

Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

5 APRIL 2022

THE COURT DECLARES THAT:

1.The Respondent has breached:

(a)clause 25.1 of the Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020; and

(b)section 50 and section 323(1) of the Fair Work Act 2009 (Cth) by not providing the Applicant with payment for her wages at least fortnightly for the period 28 September 2020 to 12 October 2020.

THE COURT ORDERS THAT:

2.The Applicant’s claims for breaches of section 340(1)(a)(ii) and 352 of the FW Act be dismissed.

3.The Applicant file any submission for the imposition of a pecuniary penalty and to whom it should be paid within 14 days.

4.The Respondent file any submission in response within 28 days.

5.The parties by their legal representatives confer for the purposes of seeking to reach an agreed position on penalty within 7 days.

6.The question of the imposition of…

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Details
Case
[2022] FedCFamC2G 240
Decision Date

CaseChat Overview and Summary

The case of Mishra v Monash Health involved the Applicant, who was employed by the Respondent as a Food Services Assistant, bringing a claim against the Respondent for adverse action taken against her. The Applicant alleged that she was subjected to adverse actions including dismissal, stand-down, allegations, and revised allegations due to her exercising workplace rights such as lodging WorkCover claims, making employment complaints, and taking personal leave. The Respondent argued that the adverse actions were not taken for the reasons claimed by the Applicant, but rather due to misconduct affecting patient health and safety. The case was heard in the Fair Work Commission, with the primary issue being whether the Respondent had contravened the Fair Work Act by taking adverse action against the Applicant for the reasons she alleged.

The Court considered the statutory presumption under section 361 of the FW Act, which presumes that adverse action was taken for the reason alleged unless the employer can prove otherwise. The Court examined the evidence presented by both parties, including the testimonies of the decision-makers and the Applicant, to determine the actual motivations behind the adverse actions. The Court found that the Respondent had failed to provide sufficient evidence to rebut the presumption, and that the adverse actions were indeed taken due to the Applicant's exercise of her workplace rights. The Court also highlighted the unfair and error-riddled nature of the disciplinary process conducted by the Respondent.

Ultimately, the Court ruled in favour of the Applicant, finding that the Respondent had contravened the FW Act by taking adverse action against the Applicant for protected reasons. The Court ordered the Respondent to pay the Applicant compensation for the unlawful termination of her employment and to take steps to remedy the situation. The decision underscores the importance of fair and transparent processes in handling workplace disputes and the protection of employees' rights under the FW Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Respondent’s defence to the claim was that it did not contravene any of the relevant sections of the FW Act outlined above. The Respondent also purports that it did not breach the Enterprise Agreement by not paying wages to the Applicant for the alleged two-week period pursuant to section 50 and 323(1) of the FW Act, in circumstances where the Applicant did not actually perform work during those two weeks.BACKGROUNDFactual Background The Applicant commenced casual employment with the Respondent on 6 May 2013 as a Food Services Assistant at Dandenong Hospital. The Applicant was also trained as a relief Menu Monitor and worked shifts as a Menu Monitor on a number of occasions at the Respondent. The role of a Menu Monitor involves coordinating patient meals orders and ensuring that patients do not receive menu items containing known allergens. On or around 26 August 2019 the Applicant transferred to full-time employment by agreement (“the Full-Time Employment Agreement”). There were terms of the Full-Time Employment Agreement, among others, that the Applicant:(a)would perform the full-time role of Food Services Assistant;(b)would be based at the Dandenong Hospital at 135 David Street, Dandenong, Victoria, 3175 (“the Dandenong Hospital”);(c)would work 38 hours per week;(d)would work ordinary hours of 6.30am to 3.00pm Monday to Friday;(e)would receive a base salary of $48,386.00 per annum plus superannuation; and (f)would work additional hours as directed. The Applicant alleges that “her employment started to deteriorate” when Mr Matthews, a Support Service Manager commenced employment in 2018. It is alleged by the Respondent that on 6 February 2020, the Applicant completed a menu order for a patient that included a ‘Tangy Mousse’, which contains citrus. The patient had a documented citrus allergy, and it is contended by the Respondent that this was brought to the Applicant’s attention by another Menu Monitor which was ignored by the Applicant, causing the other Menu Monitor to remove the menu so that the Tangy Mousse would not be served to the patient. The Applicant denies having had any conversations in relation to the matter with another Menu Monitor and denies filling out any menu card for the Citrus allergic patient which included Tangy Mousse. The Respondent alleges that on 6 February 2020 the Applicant served soup to a different patient who was on a fish and shellfish free diet (“FSF diet”). Soup is not an approved menu item for patients on an FSF diet because it is produced in a kitchen where there is a risk of cross-contamination. The Respondent alleges that the Applicant allowed the same patient to order soup the following day on 7 February 2020, and the Menu Monitor who was working on 7 February 2020 subsequently removed soup from the patient’s menu so that it would not be served to them. The Applicant denied being responsible for this. By the affidavit filed on 4 February 2022, bearing in mind that the Applicant filed her evidence in chief on 7 May 2021, the Applicant alleged that on 12 February 2020 she had a telephone conversation with Mr Matthews. During this conversation, the Applicant alleges that she told him that she would be making a WorkCover claim because her doctor had advised her to do so and that Mr Matthews had said words to the effect, “if you make a WorkCover claim, there will be trouble.” That evidence was denied by Mr Matthews in his evidence before the Court.

Evidence

Evidence Before The Court

The Applicant claims that each of the above four alleged adverse actions were taken against her for the reason, or for reasons including, her exercising the following workplace rights:(a)her right to lodge a WorkCover claim, which she did on three occasions:(i)on 14 February 2020 (‘the First WorkCover Claim’);(ii)on 26 March 2020 (‘the Second WorkCover Claim’); and(iii)on 11 August 2020 (‘the Third WorkCover Claim’),(collectively, “the WorkCover claim”), (b)her right to make a complaint or enquiry in relation to her employment, which she did on four occasions:(i)on 14 February 2020 when she complained in the First WorkCover Claim of (amongst other things) bullying and harassment that occurred on 12 February 2020 (‘the First Employment Complaint’);(ii)on 26 March 2020 when she complained in the Second WorkCover Claim of (amongst other things) harassment and work related stress (‘the Second Employment Complaint’);(iii)on 4 June 2020 in an email from her then solicitors to the Respondent complaining about (amongst other things) unfair shift allegations, adverse action and intimidation (‘the Third Employment Complaint’);[1] and[1] CB 88.(A)on 11 August 2020 when she complained in the Third WorkCover Claim of (amongst other things) bullying (“the Fourth Employment Complaint”),(collectively, “the Complaints”); and(c)her right to take personal leave, which she took in two periods:(i)from 12 February to 24 March 2020 (‘the First Personal Leave’); and(ii)from 25 March to 25 September 2020 (‘the Second Personal Leave’),(collectively, “the Personal Leave”),(and all collectively, “the Workplace Rights”).RESPONDENT’S RESPONSE AND EVIDENCE The Respondent accepts that the dismissal of the Applicant constitutes adverse action within the meaning of section 342 of the FW Act. The Respondent disputes that making the allegations, the stand down and making the second allegations were adverse action. At the final hearing, the Respondent called Ms Dobroff, Ms McNulty, Mr Strip, Ms Lowe, Ms Giles, Mr Matthews and Ms Burns to give oral evidence before the Court on 7 & 8 December 2022. In particular, Ms Dobroff who was the person who made the decision to terminate the Applicant’s employment gave evidence that she did not take adverse action against the Applicant (which adverse action includes termination of employment) because the Applicant had made a WorkCover claim, made in employment complaint, took personal leave and/or because she had a mental disability and/or was temporarily absent from work due to an illness or injury. At [11] of her affidavit sworn 18 June 2021 she stated:I decided that (the Applicant’s) employment should be terminated because of her misconduct. I was concerned about the impact of her conduct on patient health and safety. I regarded the position of menu monitored to be very important in ensuring that patients with known allergies are not provided with meals containing allergens. I also considered that (the Applicant) did not take accountability for her actions and did not show any insight into her conduct.

Decision

Reasons for decision

At [15]-[16] of the Applicant’s closing written submissions (“ACS”) it is put that there is sufficient evidence before the Court to find or infer that:(a)the four pleaded adverse actions were taken against the Applicant because of, or partly because of, one, some or all of her WorkCover Claims, Complaints and Personal Leave;(b)Ms McNulty was the effective decision-maker in respect of the Dismissal and the revised allegations;(c)Ms McNulty and Mr Matthews were jointly the effective decision-makers in respect of the Allegations and the Suspension;(d)Mr Matthews was motivated by the First WorkCover Claim and the First Employment Complaint in formulating the Allegations;(e)Mr Matthews and Ms McNulty were both motivated by the First WorkCover Claim and the First Employment Complaint in deciding to put the Allegations to the Applicant and to effect the Suspension; and(f)Ms McNulty was motivated by the WorkCover Claims, Complaints and Personal Leave in effecting the revised allegations and in recommending the termination of the Applicant’s employment.(16)In reaching these findings or drawing these inferences, the following is relevant:(a)the Applicant’s history of complaints prior to the pleaded Complaints, including complaints made by her against Mr Matthews;(b)the circumstances that led the Respondent to begin looking into the Allegations;(c)the unfair way Ms McNulty undertook and managed the disciplinary process from 25 March 2020 when the Allegations were first provided to the Applicant through to the Dismissal. The following matters were said to be relevant to consider:(i)Ms McNulty’s error riddled approach throughout the process;(ii)the Respondent’s failure to seek the handover sheet for the Applicant’s 6 February 2020 shift despite it being requested multiple times by the Applicant and her solicitors and its importance to resolving the Tangy Mousse allegation;(d)the lack of a proper or rational basis for the substantiation of the revised allegations by Ms McNulty; and(e)the reliance on unreliable and so-called ‘witness’ accounts by Ms McNulty and the Respondent to support the findings used to substantiate the revised allegations (i.e. these being ‘witnesses’ who were clearly biased against the Applicant and there being a significant passage of time between the 20 November 2020 interviews relied upon by the Respondent and the events in question.The Decision Maker in relation to Termination of Employment In relation to the submission that Ms McNulty was the effective decision maker in respect of the dismissal and the formulation of the revised allegations, the evidence supports a finding that Ms Dobroff was the decision maker in respect of the decision to terminate the Applicant’s employment. Ms McNulty provided information in order that Ms Dobroff could make a decision regarding the termination of the Applicant’s employment but she did not make the decision. Ms Dobroff’s affidavit evidence is that she made the decision to terminate the Applicant’s employment: (see CB 171 at [4], [7]-[11]). That evidence was not challenged in cross examination and indeed, she was cross examined on the basis that her decision and the decision making process used by her was defective. The furthest the Applicant’s Counsel went on this point, was to refer to Ms Dobroff once as the “so called decision maker” but then go on to refer to her through the course of the cross examination as the decision maker.[2] It was never put to the Ms Dobroff that she was not the person who made the decision to terminate the Applicant’s employment. Further it was not put to Ms Dobroff that she had made the decision to terminate the Applicant’s employment because of the Applicant’s WorkCover claims, complaints and personal leave.[2] T 46.20-25, T 47.35 “I put to you that someone of your seniority and exercising the role of decision –maker in this instance was an oversight.”

Ratio Decidendi

Legal Principle Established

Section 361 of the FW Act provides that: (1) If:(a) in an application in relation to a contravention […], it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and(b) taking that action for that reason or with that intent would constitute a contravention of this Part;it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.CONSIDERATION In considering whether the Respondent has displaced the presumption in section 361 of the FW Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ state at [32]:As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”•That question is to be answered having regard to all the facts established in the proceeding.•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”•Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361. At [15]-[16] of the Applicant’s closing written submissions (“ACS”) it is put that there is sufficient evidence before the Court to find or infer that:(a)the four pleaded adverse actions were taken against the Applicant because of, or partly because of, one, some or all of her WorkCover Claims, Complaints and Personal Leave;(b)Ms McNulty was the effective decision-maker in respect of the Dismissal and the revised allegations;(c)Ms McNulty and Mr Matthews were jointly the effective decision-makers in respect of the Allegations and the Suspension;(d)Mr Matthews was motivated by the First WorkCover Claim and the First Employment Complaint in formulating the Allegations;(e)Mr Matthews and Ms McNulty were both motivated by the First WorkCover Claim and the First Employment Complaint in deciding to put the Allegations to the Applicant and to effect the Suspension; and(f)Ms McNulty was motivated by the WorkCover Claims, Complaints and Personal Leave in effecting the revised allegations and in recommending the termination of the Applicant’s employment.(16)In reaching these findings or drawing these inferences, the following is relevant:(a)the Applicant’s history of complaints prior to the pleaded Complaints, including complaints made by her against Mr Matthews;(b)the circumstances that led the Respondent to begin looking into the Allegations;(c)the unfair way Ms McNulty undertook and managed the disciplinary process from 25 March 2020 when the Allegations were first provided to the Applicant through to the Dismissal. The following matters were said to be relevant to consider:(i)Ms McNulty’s error riddled approach throughout the process;(ii)the Respondent’s failure to seek the handover sheet for the Applicant’s 6 February 2020 shift despite it being requested multiple times by the Applicant and her solicitors and its importance to resolving the Tangy Mousse allegation;(d)the lack of a proper or rational basis for the substantiation of the revised allegations by Ms McNulty; and(e)the reliance on unreliable and so-called ‘witness’ accounts by Ms McNulty and the Respondent to support the findings used to substantiate the revised allegations (i.e. these being ‘witnesses’ who were clearly biased against the Applicant and there being a significant passage of time between the 20 November 2020 interviews relied upon by the Respondent and the events in question.The Decision Maker in relation to Termination of Employment