INDUSTRIAL LAW – adverse action – appeal – where the respondent made a number of complaints and/or inquiries about his employment, commenced proceedings in the Fair Work Commission and took personal leave – where the respondent was found to have been dismissed from his employment in contravention of s 340(1) of Fair Work Act 2009 (Cth) – whether the primary judge erred in finding that the appellant bore the onus of proof in respect of a complaint that was not particularised until closing submissions – whether the primary judge erred in failing to separately assess whether the appellant had discharged its onus in respect of each of the alleged proscribed reasons – whether the primary judge erred in finding that the appellant had failed to rebut the statutory presumption in s 361 of the Act when the respondent had failed in his initiating process to identify the actual decision-maker(s) or allege that a particular person was the decision-maker or had had a material effect on the decision to dismiss – whether the primary judge erred in applying the wrong test to the determination of the appellant’s reason(s) for the dismissal – whether, despite error, the decision of the primary judge should not be disturbed – whether, in the event of error, the matter should be remitted
PRACTICE AND PROCEDURE – whether leave to appeal is required where the primary judge determined liability only and not relief
[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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AGLC
Monash Health v Singh [2023] FCAFC 166
Case
[2023] FCAFC 166
Decision Date
CaseChat Overview and Summary
Monash Health, the largest health provider in Victoria, sought leave to appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2), which found that Mr Singh was dismissed in contravention of section 340(1) of the Fair Work Act 2009 (Cth). Mr Singh, who was employed by Monash Health from 1996 until 7 January 2020, alleged that his dismissal was a "sham" contrived to terminate his employment because he made numerous complaints and commenced proceedings in the Fair Work Commission. Monash Health maintained that the dismissal arose from a genuine review of its library services. The appeal raised several issues, including whether the primary judge erred in assigning the onus of proof, in failing to separately assess the employer's onus in relation to each alleged reason, in applying the wrong test to determine the employer's reasons for dismissal, and in finding that the statutory presumption in section 361 of the Act had not been rebutted.
The Federal Court allowed the appeal in part, setting aside the orders made by the primary judge and remitting the matter for mediation. The Court found that the primary judge had erred in assigning the onus of proof to the employer in relation to a complaint that was not particularised until closing submissions. The Court also found that the primary judge had failed to separately assess the employer's onus in relation to each alleged reason for dismissal, and had applied the wrong test in determining the employer's reasons for dismissal. The Court found that, despite these errors, the decision of the primary judge should not be disturbed, and that the matter should be remitted for mediation.
The Court noted that the primary judge had determined liability only and not relief, and that leave to appeal was therefore required. The Court granted leave to appeal and allowed the appeal in part, setting aside the orders made by the primary judge and remitting the matter for mediation. The Court held that, in the event that the matter did not resolve at or shortly after the mediation, the matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for a new trial of the respondent's claim before a differently-constituted court.
Orders
Orders of the court
1. Leave to appeal be granted.
2. The appeal be allowed in part.
3. The declaration and order made by the primary judge on 1 April 2022 be set aside.
4. Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the matter be referred forthwith to mediation by a Registrar of the Court.
5. The mediation take place at the earliest mutually convenient date.
6. In the event that the matter does not resolve at or shortly after the mediation, the matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for a new trial of the respondent’s claim before a differently-constituted court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Monash Health applied for leave to appeal and, in the event that leave is granted, orders allowing the appeal, setting aside the orders made in the court below and substituting an order dismissing Mr Singh’s application or remitting the matter to a differently-constituted court for a new trial.The background facts Monash Health is the largest health provider in Victoria. It has over 20,000 employees, including doctors, other health professionals, administrative and support staff. Mr Singh was employed by Monash Health between 1996 and 7 January 2020 in a variety of roles in the medical library of Monash Health (J[1]). Initially he was employed as a “Serials Librarian/Computer Clerk/Library Assistant” and thereafter as a “Medical Librarian Grade 1” (J[1]). He was made redundant with effect from 7 January 2020 following a restructure of Monash Health’s library services. Mr Singh’s principal allegation was that both the restructure and the redundancy were “shams” in that they were contrived in order to effect the termination of his employment because he made 13 complaints in relation to his employment, commenced proceedings against Monash Health in the Commission, and took extended personal leave (J[2]). Monash Health submitted that the restructure and the eventual termination of Mr Singh’s employment arose from a genuine review of the library services which had commenced in 2017, pre-dating the beginning of the employment of Ms Alice Anderson, the Director of Library Services and the person who Monash Health contended decided to terminate Mr Singh’s employment. The timeline of events relevant to this appeal may be summarised in the following way. In 2017, Monash Health embarked upon a review of its library services. Mr Singh sent three emails between 22 June 2016 and 21 March 2017 to various recipients which he ultimately alleged comprised the “First Employment Complaint”: (a)requesting that his position be reclassified from a Medical Librarian Grade 1 to a Grade 2 (J[56]); (b)seeking back-pay from 2012 on the basis that he had been performing the duties of a Grade 2 Librarian since that time (J[57], J[58]); (c)raising concerns regarding the transparency and fairness of the appointment processes with respect to a Project Officer role (J[57]); and (d)alleging he was bullied and discriminated against by employees of Monash Health, including Dr Christina Johnson, who was the Director of Monash Doctors Education, and as a result Mr Singh suffered from stress and anxiety (J[58]). On 21 September 2017 and 21 December 2017, Mr Singh again requested reclassification of his position and sought back-pay. Monash Health rejected these claims (J[5] and [7]). On 2 March 2018, Mr Singh lodged an application in the Commission seeking reclassification and back-pay. This proceeding was resolved on 1 November 2018 by agreement following which Mr Singh was reclassified as a Grade 2 Librarian and reimbursed back-pay from 2012 (J[8]). On 29 January 2018, Ms Anderson commenced as the Director of Library Services at Monash Health. Ms Anderson was told by Dr Johnson, the Director of Monash Doctors Education, that one of her first jobs would be to restructure the library and its services (J[6]). Between January and March 2018, Ms Anderson met with library staff, visited each of Monash Health’s campuses, as well as other medical libraries, and liaised with Dr Johnson about the library restructure (J[107]).