Monash Health v Singh

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.