Singh v Monash Health
[2022] FedCFamC2G 229
Federal Circuit AND FAMILY Court of Australia
(DIVISION 2)
Singh v Monash Health [2022] FedCFamC2G 229
File number(s): MLG 1220 of 2020 Judgment of: JUDGE RILEY Date of judgment: 1 April 2022 Catchwords: INDUSTRIAL LAW – Fair Work – adverse action – dismissal of medical librarian following a restructure in which his position was removed – whether the restructure, without the applicant’s position, was necessary to modernise the library – whether the restructure and the applicant’s eventual dismissal were because the applicant complained, took proceedings in the Fair Work Commission and took personal leave. Legislation: Fair Work Act 2009, ss.340, 341, 342, 360 and 361 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALRJ 1044; (2012) 220 IR 445; [2012] HCA 32
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804
Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098
TechnologyOne Limited v Roohizadegan (2021) 309 IR 262; [2021] FCAFC 137
Transport Workers' Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873Division Division 2 General Federal Law Number of paragraphs: 204 Date of hearing: 27 July 2021; 15, 16 and 17 February 2022 Place: Melbourne Counsel for the Applicant: Geoff Lake Solicitor for the Applicant: Jewell Hancock Employment Lawyers Counsel for the Respondent: Jack Tracey Solicitor for the Respondent: Victorian Government Solicitor’s Office ORDERS
MLG 1220 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARENDRA SINGH
ApplicantAND: MONASH HEALTH (ABN 82 142 080 338)
Respondent
order made by:
JUDGE RILEY
DATE OF ORDER:
1 APRIL 2022
THE COURT DECLARES THAT:
1.The respondent contravened s.340(1)(a)(ii) of the Fair Work Act 2009 (“the Act”) by dismissing the applicant because he had exercised his workplace rights to make a complaint in relation to his employment, filed a proceeding in the Fair Work Commission and took leave.
THE COURT ORDERS THAT:
2.The questions of the quantum of any compensation, and the quantum of any penalty, be addressed by the parties at a further hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
introduction
This is an adverse action claim brought under the Fair Work Act 2009 (“the Act”). From 1996, the applicant (“Mr Singh”), was employed in the medical library of the respondent (“Monash Health”). Monash Health is the largest health service provider in Victoria, and has about 20,000 employees, many of whom are doctors or other health professionals. Mr Singh was first employed as a Serials Librarian/Computer Clerk/Library Assistant, but after completing a Master of Applied Science – Library and Information Management in 2009, he was employed as a Medical Librarian Grade 1.
With effect from 7 January 2020, Monash Health terminated Mr Singh’s employment on the grounds of redundancy following a restructure of its library services. Mr Singh argued that the restructure and his redundancy were shams, designed to terminate his employment because he had made a number of complaints in relation to his employment, took proceedings in the Fair Work Commission (“FWC”) and took personal leave.
The first alleged complaint (“the first complaint”) was a series of complaints allegedly made by the applicant between 16 June 2016 and 18 July 2017 by email and verbally in meetings and:
(a)sought that his position be reclassified from a Grade 1 librarian position to a Grade 2 librarian position;
(b)sought that he be given back pay from 2012 on the basis that he had been working at the higher level since that time; and
(c)said that he was suffering from workplace stress and anxiety from being subjected to bullying and discrimination by Ms Marijana Bacic, (who was the Acting Chief Librarian from 16 June 2016 until 18 July 2017, and Chief Librarian from 19 July 2017 until her resignation on about 19 December 2017) and Dr Christina Johnson (who was the Director, Monash Doctors Education, and Ms Bacic’s supervisor).
Monash Health refused Mr Singh’s application for reclassification and back pay. Monash Health disputed in this proceeding that the first alleged complaint was a complaint that the court could take into account, on the grounds that it was not properly pleaded or proved.
In any event, it was not disputed that, on 21 September 2017, Mr Singh made a complaint with the assistance of an employment consultant to the effect that his position should be reclassified and he should be given back pay (“the second complaint”). Monash Health rejected those claims.
On 10 November 2017, Alice Anderson accepted the role of Director, Library Services at Monash Health. At around that time, Dr Johnson told Ms Anderson that one of her first jobs would be to restructure the library and its services. Ms Anderson commenced in the role on 29 January 2018.
On 21 December 2017, Mr Singh made a complaint with the assistance of a solicitor, seeking reclassification of his position and back pay (“the third complaint”). Monash Health rejected those claims.
On 2 March 2018, Mr Singh filed an application in the FWC, seeking reclassification of his position and back pay. That proceeding was resolved by agreement on 1 November 2018, with Mr Singh’s position being reclassified as a Grade 2 position, and him being paid back pay from 2012.
In the meantime, on 16 May 2018, the CEO of Monash Health, Andrew Stripp, signed an Organisation Change/Continuous Improvement Request. He thereby authorised a restructure of the library team, which expressly contemplated the redundancy of Mr Singh and either Suzanne Wind, the inter-library loans officer, or Brigitte Reynolds, who was one of two library assistants. Otherwise, the plan was for everyone in the library team to have a job at their existing level. At the time, the library team had eight positions, one of which was vacant. With the new structure, the library team would have had seven positions.
The May 2018 proposal envisaged the restructure being fully implemented by 3 September 2018. The May 2018 proposed restructure was never implemented. It was replaced by an amended restructure proposal in November 2018, which was substantially the same and which was implemented.
On 21 May 2018, Ms Anderson and Kate Burns, the head of People and Culture (HR), met Mr Singh and presented him with a Change Impact Statement outlining the May 2018 proposed restructure. Ms Anderson told Mr Singh his position was no longer required. In the proposed restructure, Mr Singh’s Grade 1 medical librarian position was going to be converted to a Grade 1 library cadet position, for which Mr Singh was not suitable. Mr Singh claimed that he verbally queried why the restructure was occurring at that time, and said that he was being targeted (“the fourth complaint”). Ms Anderson and Ms Burns denied that Mr Singh made the fourth complaint.
On 29 May 2018, Mr Singh emailed Mr Stripp, complaining about the restructure and seeking his intervention to stop it (“the fifth complaint”). Mr Stripp did not reply to the email. He said in cross-examination that he understood that someone from People and Culture would reply on his behalf. However, Mr Stripp acknowledged that no one had replied on his behalf.
On 2 June 2018, Mr Singh emailed Ms Anderson and Ms Burns, expressing his opposition to the proposed restructure (“the sixth complaint”).
On 5 June 2018, Mr Singh emailed Ms Burns saying he was on personal leave due to illness (“the seventh complaint”). Mr Singh remained on personal leave until 7 November 2018.
On 8 June 2018, Mr Singh’s then solicitor emailed Monash Health, saying that he had commenced the FWC proceeding (“the eighth complaint”).
As mentioned above, on 1 November 2018, Mr Singh’s FWC proceeding was resolved by consent, on the basis that Mr Singh’s Grade 1 position was reclassified as a Grade 2 position, and on the basis that he was given back pay for having worked at the higher level since 2012.
On 7 November 2018, Mr Singh returned to work from his sick leave and began working formally at the Grade 2 level.
On 8 November 2018, Ms Anderson required Mr Singh to undergo a performance appraisal.
On 9 November 2018, at 8.30am, Ms Anderson met with the library team, except Mr Singh, and explained to them an amended library restructure proposal. At 10am, Ms Anderson met with Mr Singh, and presented him with the amended library restructure proposal. Apart from some changes of title, the November 2018 amended library restructure proposal only had two significant staffing changes from the existing structure. They were:
(a)replacing Mr Singh’s position as a medical librarian, now Grade 2, with a library cadet position, Grade 1, which was Mr Singh’s grade, prior to his successful FWC proceeding; and
(b)removing either Suzanne Wind’s position, as the inter-library loans officer, or Brigitte Reynolds’ position, as one of two library assistants.
Between 12 November 2018 and 6 October 2019, Mr Singh took personal leave. During this time, Monash Health invited the applicant to apply for various roles. However, Mr Singh did not apply for the Grade 2 roles in the new structure because he considered that those roles had been earmarked for other staff. He did apply for a clerical/administrative role in the Clinical Engineering team at Monash Health but was unsuccessful.
On 20 November 2018, Mr Singh emailed Mr Stripp again, saying that he had been discriminated against because of his FWC proceedings and claim for underpayments (“the ninth complaint”).
On 23 November 2018, Mr Singh emailed Ms Anderson and Ms Burns saying that adverse action had been taken against him due to his exercise of workplace rights (“the tenth complaint”).
On 6 December 2018, Mr Singh emailed Ms Burns, saying that adverse action had been taken against him because he exercised his workplace rights (“the eleventh complaint”).
On 10 December 2018, Mr Singh emailed Ms Lowe, the Executive Director of People and Culture at Monash Health, saying that adverse action had been taken against him because he exercised his workplace rights (“the twelfth complaint”).
On 29 March 2019, Ms Anderson wrote to Mr Singh saying that his redeployment period went from 29 March 2019 until 28 June 2019. Also on 29 March 2019, Mr Singh emailed Ms Anderson and Ms Burns saying that the process was retaliation for him taking proceedings in the FWC for reclassification and back pay (“the thirteenth complaint”).
On 7 April 2019, Mr Singh emailed Ms Anderson saying that too much pressure was being placed on him to accept the sham restructure and redeployment (“the fourteenth complaint”).
On 29 April 2019, Mr Singh wrote to Ms Anderson saying that adverse action had been taken against him due to his exercise of workplace rights (“the fifteenth complaint”).
On 24 September 2019, Mr Singh advised Monash Health that he intended to return to work from his period of leave.
On 3 October 2019, Mr Singh attended a meeting with Ms Burns and Ms Johnson. Ms Burns directed Mr Singh not to attend work. She gave him a letter which stated that his position was no longer required, and his redeployment period was from 7 October 2019 until 6 January 2020.
On 7 October 2019, Mr Singh emailed Ms Burns (“the sixteenth complaint”), saying:
As you aware, in my opinion the redundancy of my position is not genuine and is in response to my previous claim to the Fair Work Commission, and other matters. However, in the interest of attempting to continue my employment with Monash Health I will participate in the redeployment process.
On 7 January 2020, Ms Burns and Matthew Jetmar, Business Partner in the People and Culture team at Monash Health, met with Mr Singh and advised him that, as the redeployment period had ended and as he had not obtained new employment, his employment at Monash Health would be terminated by way of redundancy.
On 8 January 2020, Ms Burns sent the applicant an e-mail with an attached letter stating that his role had been made redundant effective 7 January 2020. In effect, Mr Singh was dismissed on 7 January 2020.
material relied upon
Mr Singh relied upon:
(a)his application filed on 15 April 2020;
(b)his Form 2 filed on 15 April 2020;
(c)his reply filed on 22 June 2020;
(d)his written submissions filed on 29 June 2021;
(e)his unsworn affidavit filed on 18 September 2020;
(f)his unsworn affidavit filed on 24 December 2020;
(g)his unsworn affidavit filed on 24 December 2020;
Monash Health relied upon:
(a)its written submissions filed on 13 July 2021;
(b)its response filed on 29 May 2020;
(c)the affidavit affirmed by Andrew Mark Stripp on 24 November 2020;
(d)the affidavit affirmed by Alice Victoria Anderson on 27 November 2020;
(e)the unsworn affidavit of Alice Victoria Anderson filed on 21 September 2021;
(f)the unsworn affidavit of Christina Elizabeth Johnson filed on 27 November 2020;
(g)the unsworn affidavit of Christina Johnson filed on 21 September 2021;
(h)the unsworn affidavit of Kate Elaine Burns filed on 27 November 2020;
(i)the affidavit affirmed by Kate Elaine Burns on 20 September 2021;
(j)the unsworn affidavit of Gaylene Clare Giles filed on 21 September 2021;
(k)the unsworn affidavit of Erwin Loh filed on 17 December 2021; and
(l)the affidavit affirmed by Karen Ann Lowe and filed on 17 December 2021.
The deponents of all of the affidavits relied upon were cross-examined.
legislation
Section 340 of the Act provides that:
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
…
(ii) has, or has not, exercised a workplace right; …
…
Note: This subsection is a civil remedy provision (see Part 4‑1).
…
Section 341 of the Act provides that:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of … a workplace law … ; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
…
(ii)if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
…
Section 342 of the Act provides that:
Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; ……
…
Section 360 of the Act provides that:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 of the Act provides that:
Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took … 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 that the action was … taken for that reason or with that intent, unless the person proves otherwise.
…
standard and burden of proof
Adverse actions are civil claims, so are decided on the balance of probabilities. However, as adverse action claims can have penal consequences, the Briginshaw standard applies.
The burden of proof for the various components of the claim is on Mr Singh, except in relation to the reason for, or the intent of, the adverse action. The reason for, or the intent of the adverse action, is presumed to be as alleged by Mr Singh, unless Monash Health proves otherwise.
Barclay
The leading case on adverse actions is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32. In that case, French CJ and Crennan J said:
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, 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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-make or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(citations omitted)
Also in Barclay, Gummow and Hayne JJ said at [104]:
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity [or other protected activity] comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an “adverse action” within the meaning of s 342.
Section 360 of the Act recognises that there may be multiple reasons for a particular action. It is sufficient that any one of the reasons for the adverse action was a prohibited reason, provided that it was a substantial and operative reason.
the adverse action
In his Form 2, filed in this court, Mr Singh alleged a number of adverse actions that injured him in his employment and altered his position to his prejudice. However, during the hearing before this court, Mr Singh formally withdrew those claims. The only claim before the court is that Mr Singh was dismissed from his employment for prohibited reasons.
Monash Health did not dispute that the dismissal was adverse action as defined in s.342(1) of the Act. Monash Health also accepted that Mr Singh’s:
(a)complaints, except the first and fourth complaints;
(b)taking of proceedings in the FWC; and
(c)taking of personal leave,
were exercises of workplace rights.
the reasons for the adverse action
Mr Singh alleged that he was dismissed because:
(a)he had made complaints in relation to his employment;
(b)he had brought proceedings in the FWC; and
(c)he had taken personal leave.
Monash Health denied that it dismissed Mr Singh for any of those reasons. Monash Health maintained that Mr Singh was dismissed because his position was redundant following a restructure that was genuinely implemented to modernise the library service.
the first complaint
Monash Health disputed that the first complaint was a complaint. In its written submissions, Monash Health said that the first complaint was:
… far too broad, generalised and vague to constitute a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act.
In this regard, Monash Health relied upon Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306; (2017) 274 IR 420; [2017] FCAFC 222 at [102] and [167]. In that case, Bromberg J said at [102]:
Moreover, proceedings in relation to civil penalty provisions under the FW Act are penal in nature. Allegations of contravention of the general protections provisions are inherently serious and should, as a matter of fairness, be pleaded with sufficient precision for a respondent to know the case against it. So much was made clear by the Full Court (Logan, Bromberg and Katzmann JJ) in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [63]–[65] (emphasis added):
[63]Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party’s case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) (“Evidence Act”).
[64]Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.
[65]The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion.
Monash Health noted that Charlesworth J agreed with Bromberg J at [167]. However, her Honour had one qualification to her overall agreement. Specifically, Charlesworth J said at [168]:
As has been observed, the reverse onus of proof provided for in s 361 of the Fair Work Act 2009 (Cth) is only enlivened “if ... it is alleged” that an adverse action is taken for “a particular reason or with a particular intent”. This Court has concluded that the primary judge did not err in finding that the respondent either did not take “adverse action” (as defined) or that the respondent, when it took adverse action, did not take it for a prohibited reason. It is unnecessary to consider whether the appellant pleaded or conducted her case with sufficient particularity to enliven the statutory presumption. Submissions on the appeal proceeded on the basis that any such presumption was correctly found by the primary judge to either not arise on the facts, or to have been rebutted in any event. The appellant’s contentions about the application of the principle in Jones v Dunkel (1959) 101 CLR 298 have been rejected. In the circumstances, I would prefer to leave questions concerning the sufficiency of an allegation for the purposes of s 361 of the Act (and the manner or form in which such an allegation must be made) to a case in which the outcome depends upon it. (emphasis added)
In any event, as Bromberg J said, the basic requirement is that allegations are made “with sufficient precision for a respondent to know the case against it”. In the present case, Mr Singh argued that requirement had been met, because Mr Singh exhibited to his affidavit filed on 18 September 2020, about ten months before the first day of the trial, three emails that he said constituted the first complaint.
Mr Singh said in paragraph 6 of his Form 2 filed in this court on 10 April 2020 that:
From 16 June 2016 to 18 July 2017 the Applicant made multiple complaints in relation to his employment both via email and in various meetings (First Employment Complaint). The First Employment Complaints were made to:
(a) Marijana Bacic (Ms Bacic) – Acting Chief Librarian
(b) Christina Johnson (Ms Johnson) – Library Officer
(c) Gaylene Giles (Ms Giles) - Senior Manager,
(d) Erwin Loh (Mr Loh) – Chief Medical Officer
(e) Karen Lowe (Ms Lowe) – Executive Director (People and Culture)
(f)Hannah Christie (Ms Christie) – People and Culture Business Partner;
and pertained to;
(g)A request for re-classification from Grade 1 Medical Librarian to Grade 2 Medical Librarian as he was performing higher duties from 1 January 2012;
(h)Underpayments resulting from the failure to appropriately classify his employment as Grade 2 Medical Librarian;
(i)Work-related stress and anxiety as a result of being subject to bullying and discrimination by Ms Bacic and Ms Johnson.
The Form 2 did not specify the dates of the complaints or the specific people to which each complaint was addressed. In his affidavit filed on 18 September 2020, Mr Singh exhibited the complaints that he said at the trial that he relied upon as constituting the first complaint. Each of the complaints was made by email.
The first was dated 22 June 2016 and was addressed to Ms Bacic, who was the Acting Chief Librarian at the time, and cc’d to Dr Johnson, who was Ms Bacic’s supervisor. It said:
Hi Marijana,
I am writing to request you to please grade my position and salary according to my current work, responsibility and experience as outlined below.
I joined Monash Medical Centre in June 1996 as a Library Attendant/Clerk. In 2010 my position was reclassified to a Medical Librarian Grade 1, after completing a Master of Applied Science- Library and Information Management in 2009, from Charles Sturt University, Australia. In 2012 Chief Librarian delegated some of his workload and duties to me. These duties included Library Education Sessions,
Workshops, Tutorials about Library Resources & Services, and Literature Searches, which I continue to fulfil. I delivered theses services on approximately 44 occasions in 2012, 39 in 2013, 36 in 2014, 70 in 2015, and 59 in up to June 22 2016 either tutorials/sessions/workshops in group/one to one or literature searches.
To my knowledge, in other major teaching hospitals in the Melbourne, these services are provided by a Deputy Librarian, Chief Librarian or other higher graded positions.
In light of all of the above factors, I would request that you look closely at my position, responsibilities and grade and pay me accordingly.
Looking forward to hearing from you.
Thanks and kind regards,
Harendra
The second was dated 17 August 2016 and was addressed to Gaylene Giles, Senior Manager, People and Culture. It said:
Hi Gaylene,
In continuation my email dated on 12th August 2016, I have following issues:
Issue One:
I wrote an email to the Acting Chief Librarian and copied the Library Officer on 22nd June 2016 in relation to my under paid salary since 2012, along with two emails supporting this claim on the 29th June 2016 and 11th July 2016, as requested by the Acting Chief Librarian. I received an email from the Acting Chief Librarian on 1st August 2016, advising that my case be deferred until the new Chief Librarian is appointed. Since this issue has been ongoing for quite some time, it seems superfluous to keep hand-balling this problem to the next person in line instead of resolving it now. (Please refer to correspondence copies enclosed herewith for your reference).
According to my roles and responsibilities and research I have conducted, I believe I’ve been under-paid from 2012 to the current date.
Please note the following:
1.My present weekly salary is $1348.90 X 52 = $70,142.80 per year. Medical librarian Grade 1
2. Medical Librarian Grade 2 salary is $1535.30 x 52 = $79,835.60 per year.
3. Chief Librarian Grade 3 salary is $1696.20 x 52 = $88,202.40
In other major hospitals, such as the Alfred and Austin Hospitals, the role that I’ve been performing since 2012 is performed by either a Grade 2 Medical Librarian or the Chief Librarian. On this basis I believe that I have been underpaid by the difference between my current salary ($1,348 per week) and the average of the three salaries above ($1,526.80), which amounts to $177.90 per week since 2012 to date.
Issue two:
The recent appointment of a Project Officer to the Library was not transparent or done fairly. I felt that my qualifications and expertise were disregarded and I raised my concerns with the relevant authorities at the time i. e. 8th March 2014, and 24th March 2014.
All of the above has caused much stress for me and has created a negative environment in the Library. I would like the recruitment process of the Project Officer to be comprehensively investigated. In light of all of the above factors, I would like to request that you look closely at my position, responsibilities and grade and pay me accordingly i. e. from 2012 to the present. As indicated above, I believe I have been underpaid a minimum of $177.90 per week (i.e. it means $9,250.8 per year).
I would be happy to discuss this further with you in detail.
Yours sincerely,
Harendra
The third was dated 21 March 2017 and was addressed to Professor Erwin Loh, Chief Medical Officer. It said:
Hi Erwin,
Please treat this email as highly confidential.
The purpose of this email is to highlight some serious concerns to you in relation to my current salary (when compared to the duties I have been performing since 2012) and workplace discrimination and harassment.
Firstly, I believe that I have been underpaid since January 2012 according to the work/duties I have been performing. I have validated this with the Health Workers Union and other Major Hospitals in the Melbourne such as the Alfred Hospital, Austin Hospital, and the Royal Children Hospital. I would like to now bring this to your attention as this is still unresolved and I have not yet received a satisfactory response.
Secondly, I feel that I have been discriminated against, bullied and harassed by senior members of the library for over two years. For example, Library Services was reviewed in 2011 by the Monash Health (Anjali Dhulia was the Chairperson of the Committee undertaking the review),
As part of the review some recommendations to improve the operation of the Library were made. However, despite the recommendations, I felt that the Chief Librarian (due to personal interests) misused her power to appoint her husband as a Project Officer since 2014. This significantly undermined the duties that I was already undertaking in 'my role. In addition to this I feel that the selection process for the Chief Librarian was not transparent. These are just two of several incidences that have occurred over the last two years, which I would like to discuss with you in more detail.
I have already expressed my concerns to Marijana Bacic (Former Deputy Librarian recently promoted to Chief Librarian), Gaylene Giles (Senior Manager, People and Culture), and Christina Johnson (Library Officer), and I am extremely disappointed with their response. Therefore, I would like to now bring my concerns to your attention, especially since these have been unresolved since June 2016.
Could you please spare some time for me to discuss these matters in detail with you in person. If these issues do not come under your department, then could you please advise who I should approach/contact?
Your advice will be highly appreciated.
Thanks and kind regards,
Harendra
As can be seen, the three emails that Mr Singh said at the trial that he relied upon to constitute the first complaint were not made to all of the people that Mr Singh said in his Form 2 that he had complained to. In other words, in the Form 2, Mr Singh said that he had complained to Karen Lowe and Hannah Christie, but none of the emails he relied upon at trial were addressed to, or cc’d to, either of those people.
Moreover, the Form 2 said that the complaints were made between 16 June 2016 and 18 July 2017. However, the three emails that Mr Singh said at the trial that he relied upon were dated between 22 June 2016 and 21 March 2017.
Additionally, Mr Singh’s affidavit did not specify that, when he referred to the three emails, he meant that they were the first complaint. In fact, in his affidavit, Mr Singh did not correlate any of the complaints he narrated to the 16 complaints that he referred to in his Form 2. Most could be correlated, by their dates, but, in the case of the first complaint, that exercise was not straightforward.
The difficulty is compounded by the events subsequent to Mr Singh’s email dated 21 March 2017. Mr Singh explained in his affidavit that Professor Loh agreed to meet with him. For the purposes of the meeting, Mr Singh provided to Professor Loh an agenda, which set out a summary of Mr Singh’s issues and complaints, including:
(a)his underpayment;
(b)the employment by the then Acting Chief Librarian (Ms Bacic) of her husband as a Project Officer in the library; and
(c)bullying, discrimination and harassment of Mr Singh by the then Acting Chief Librarian (Ms Bacic).
Monash Health took the issues raised by Mr Singh seriously enough for Ms Lowe (from HR) to investigate them, along with a number of other issues. Ms Lowe produced a document headed Summary of Allegations and Findings. The allegations covered the period 8 March 2014 to 26 April 2017. The allegations were mostly of bullying and discrimination, and were against Ms Bacic, Ms Giles, Dr Johnson, and three other people who had by then left Monash Health.
All of this was explained in Mr Singh’s affidavit. However, the dates in the Summary of Allegations and Findings do not coincide with the date range in the Form 2 for the first complaint. It is not entirely clear which precise complaints Mr Singh meant when he referred in his Form 2 to a series of complaints between 16 June 2016 and 18 July 2017.
However, as a minimum, I consider that Mr Singh meant, by his first complaint, the three emails dated 22 June 2016, 17 August 2016 and 21 March 2017, as well as the complaints set out in the Summary of Allegations and Findings in so far as they fall within the period 16 June 2016 to 18 July 2017.
These complaints and allegations were all ultimately in writing and were all very well known to Monash Health. I consider that it is artificial for Monash Health to say that it did not understand that those complaints were all included in the series of complaints that Mr Singh described as the first complaint. For the purposes of responding to the allegations in this hearing, I am satisfied that Mr Singh identified those complaints with sufficient precision for Monash Health to know the case that was being put against it.
As to anything else that Mr Singh might have meant by the complaints “in emails and in various meetings”[1], I have no idea, and I daresay Monash Health could not have known either.
[1] Form 2, paragraph 6.
I am satisfied that the first complaint, understood as meaning the three emails dated 22 June 2016, 17 August 2016 and 21 March 2017, as well as the complaints set out in the Summary of Allegations and Findings in so far as they fall within the period 16 June 2016 to 18 July 2017, was sufficiently alleged and proved.
the fourth complaint
Monash Health also denied that Mr Singh made the fourth complaint. Mr Singh said that he made this complaint verbally on 21 May 2018 when Ms Anderson and Ms Burns presented him with the Change Impact Statement dated 18 May 2018 and told him that his position was no longer required. Mr Singh claimed that he said at that time:
Why are you restructuring now? You are targeting me. You are playing politics.
Ms Anderson and Ms Burns denied that Mr Singh said those words or anything like them.
Without considering that anyone is a liar, it seems to me that Ms Anderson and Ms Burns could easily have forgotten that Mr Singh said those words. On the other hand, Mr Singh would be much more likely to remember them, because the meeting was such a significant event for him. That is, he had just been told, after 22 years of employment, that his position was no longer required. In addition, he had already made a number of complaints, so it would not be surprising that he would make another. On the contrary, it would be surprising if he had not made a complaint when told that his position was redundant.
I am satisfied that Mr Singh did make the fourth complaint.
the decision and the decision-maker
The parties were in dispute about what was the relevant decision, and, consequently, they were in dispute about who was the relevant decision-maker.
Mr Singh argued that the adverse action that was taken against him, being his dismissal, was the culmination of a sequence of events. The sequence of events was that there was a library restructure, the possibility of redeployment, and then Mr Singh being dismissed on the basis that there was no position available for him at Monash Health. While the relevant action was the dismissal, in Mr Singh’s submission, the motivations of those involved in the decision to restructure the library team could be taken into account, and, if those motivations were for proscribed reasons, the dismissal itself was adverse action for a proscribed reason.
Monash Health argued that the court could only consider the dismissal, in a vacuum, because the restructure and redeployment opportunity were not adverse actions, or, if they were, Mr Singh chose not to pursue them in this proceeding. Monash Health also argued that the decision to dismiss was Ms Anderson’s alone, and it was not permissible for Mr Singh to submit that Dr Johnson was a decision-maker, because he had not pleaded that Dr Johnson was a decision-maker.
In support of his submission that the court could examine Dr Johnson’s reasons for the restructure, Mr Singh relied firstly on Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098, where Lee J said:
[103]Before moving on, it is appropriate to pause to consider the principled approach to be taken to assessing decision-making when various individuals are involved. In Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251, the Full Court considered a situation where two supervisors assessed an employee for redundancy by reference to identified criteria. A third person, a general manager, then made the ultimate decision to terminate the employment of the employee. It was explained that if either of the supervisors’ assessments was influenced by a prohibited reason, that would have impugned the decision of the general manger, even though the prohibited reason had not been disclosed to him. In doing so, at 260 [37] the Court explained that one supervisor made “an indispensable contribution to the rankings” and both supervisors “co-operated in a joint assessment, with each giving an account of what influenced them individually”. If one supervisor “was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason” then this would, inevitably, have, affected the ranking process, whatever the views of the other supervisor. Furthermore, whatever debate there might be about the extent of the general manager’s power or involvement in the decision, the manager’s evidence was that he took the supervisors’ assessment and worked from there. It followed that if the supervisors’ assessment was affected (or infected) by either supervisor holding an undisclosed prohibited reason, then the general manger “would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of” the general manager (at 260 [37]).
[104]In dealing with the Full Court’s decision in Kodak, in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166, Reeves J observed (at 198 [121]) that:
... where the reasoning process is dispersed through an assessment process involving a number of persons...the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry...focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak...
(references omitted)
[105]It follows from the above that, notwithstanding my finding about the ultimate decision being made by Mr Thomas, it is necessary that I give separate attention to the question of whether CSG has proved that Mr Ramsay, in assessing the performance of Mr Leahey (and providing any input to Mr Thomas in making the decision), was not actuated by a prohibited reason.
[106]Such an approach does detract from the principles explained by the High Court in Barclay. The approach to determining the reasons of Mr Thomas does not involve an objective test, nor does it take account of any unconscious reasons. However, it is common ground that, at the very least, the decision of Mr Thomas was the culmination of a process involving the input of Mr Ramsay. As Reeves J explained in Clermont Coal at 198 [120]-[121], the authorities place the relevant focus on the reasoning process that led to the ultimate decision. This means where the decision was made by one person, based on one incident, “the task is relatively straightforward”. On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, “the task is much more complicated”. In such a case, examination is to take place of the reasoning process of each person whose involvement “had a material effect on the ultimate decision”. This relevant inquiry focuses on the “conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons”.
It is worth setting out the whole of paragraph 37 of the Full Court’s decision in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804. It is as follows:
The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe's power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.
Secondly, Mr Singh relied on Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873 where Lee J said:
[226]Very recently, in Wong v National Australia Bank Limited [2021] FCA 671, Snaden J (at [84]–[98]) referred to the process of corporate decision making and the circumstance decisions made on behalf of a body corporate by an officer, but with input from others. His Honour noted (at [85]) that the authorities provide that “a body corporate’s reasons for conducting itself in a given way might reside or partly reside in the mind or minds of individuals other than those who decided to effect that conduct”. Reference was made to National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139, where Gray J determined that a University’s reasons for dismissing an academic employee resided not merely in the minds of those who made the decision to dismiss, but also in the minds of those who authored a memorandum that recommended that course. The memorandum was said to be “an essential part of the process” and, thus, the reasons of its authors were held also to be the University’s reasons for dismissing the employee.
[227]At [86], Snaden J noted that RMIT was consistent with the earlier reasoning in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 (discussed above) and that of Greenwood, Besanko and Rangiah JJ in Red Cross Society, where the Full Court noted, after referring to Kodak and Clermont Coal (at 348 [91]), that:
... a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a prescribed [sic] purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.
[228]Snaden J perceived difficulty in reconciling Kodak (and Australian Red Cross) with two decisions of the High Court: Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243, both being cases which “did not concern the anatomy of corporate decision-making” but were instructive because:
... they illustrate the distinction to be drawn between a person’s reasons for doing something and the contextual influences that might bear in some way upon those reasons. In a case such as the present, although the latter might inform the court’s assessment of the former, it is the former that remains the central issue to be determined.
[229]His Honour then made reference to Australian Workers’ Union v John Holland [2001] FCA 93; (2001) 103 IR 205 (Goldberg J), where the fact of the employee’s membership of the applicant union, although significant in a contextual sense, did not factor in the mind of his employer as a reason for his dismissal. This, and another similar case, were said to illustrate that:
... the reasons of those who significantly or indispensably influence (or, as Reeves J put it in Clermont Coal, 198 [121]: have “a material effect on”) such decisions ought not to qualify, merely by reason of that influence, as reasons that animate resultant corporate conduct.
[230]His Honour regarded this approach as being consistent with the language employed by s 793(2) of the FWA which serves to deem (in defined circumstances) the existence of a corporate state of mind “in relation to particular conduct”. It does so by paying regard to the state or states of mind of the human agents by whom “the conduct was engaged in”. Insofar as it concerns a course or instance of conduct engaged in by or on behalf of a body corporate:
... the question that arises under s 793(2) is not “Who influenced (or indispensably or significantly influenced), contributed to or had a material effect on the decision to embark upon that conduct?”; it is, rather and more simply, “Who decided that that conduct should be embarked upon?” It is in the mind or minds of the latter that the state of mind of the body corporate on behalf of which they act is to be found.
[231]His Honour concluded that he was unable to see how “an individual officer might qualify as a maker of any given corporate decision unless he or she can be thought to have exercised some authority or executive power to effect it, be that actual or ostensible, formal or otherwise”. Having noted this, his Honour recognised he was required to apply Kodak and the other cases that have applied equivalent reasoning.
[232]If there is a case at Full Court level where the issue of whether a person who is involved in the process leading to the decision was a decision maker for the purpose of a proscribed purpose was decisive, and it was argued that the relevant reasoning in Kodak was plainly wrong, then it will no doubt be necessary for a Full Court to evaluate the points usefully raised by Snaden J. A formal submission was not made in this case that Kodak was wrongly decided (although it was sought to be distinguished) and, although I will make relevant findings, for reasons I will explain, the case does not ultimately fall to be decided only by whether a person other than Mr David, materially involved in the process leading to the outsourcing decision, was motivated by a proscribed purpose.
[233]It suffices to note, for my part, the point is not without difficulty but at least in some cases, it may be artificial to maintain any bright-line distinction between a person’s reasons for doing something and contextual influences that might bear upon the reasoning process and its result. This is not to suggest an objective test be adopted, nor the taking into account of any unconscious reasons (and hence detract from the principles explained in Barclay). But some decisions (like in Leahey) are the culmination of a long process involving the input of others. It is easy to conceive of cases where influences which may be characterised as “contextual” may matter, and subjectively bear upon a reasoning process. It all depends. Every decision is made in a context and is the work of a human actor; and decisions can be complex things involving the application of rational thought, but can also involve confusion and illogicality that are part of the human experience. In the end it is all a fact dependent analysis. In any event, it is unnecessary to explore these issues further.
On the other hand, Monash Health submitted that TechnologyOne Limited v Roohizadegan (2021) 174 ALD 224; (2021) 309 IR 262; [2021] FCAFC 137 precluded Mr Singh from submitting that the court is entitled to consider the influences and subjective intent of people involved in the termination other than the nominal decision-maker. In Roohizadegan, the court at first instance found that there was one decision-maker, Mr Di Marco, although Mr Roohizadegan had argued that there were 10 decision-makers. On appeal, Mr Roohizadegan sought to argue that three of the 10, namely, Mr Harwood, Mr MacDonald and Mr Chung had had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment. The Full Court of the Federal Court said:
[216]Mr Roohizadegan submits that if one or more grounds of the amended notice of appeal is made out, the primary judge’s conclusion that the appellants contravened the FW Act should be upheld on the basis that:
(a)each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment;
(b)each failed to deny that their reasons for advising Mr Di Marco as they did included one or more of the proscribed reasons alleged by Mr Roohizadegan and/or to deny that they had no additional reasons which included one or more of those proscribed reasons; and
(c)the objective evidence was not sufficient to negate those propositions on the balance of probabilities.
[217] We are, with respect, unable to accept any of those contentions.
[218]First, the case now sought to be made is not the case that Mr Roohizadegan ran below. His case before the learned primary judge was that there were ten decision makers, each of whom was responsible for the decision to terminate his employment.
[219]Secondly, each of Messrs Harwood, MacDonald and Chung gave evidence that Mr Di Marco was the sole decision maker, and the learned primary judge accepted their evidence about that.
[220]Thirdly, and relatedly, the learned primary judge made no finding that any of those gentlemen were motivated by any relevant prohibited reason, viz any of the seven complaints, and to find that each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment would be inconsistent with the learned judge’s finding below that Mr Di Marco was the sole decision maker.
[221]Fourthly, the claim that each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment was never alleged, so that he cannot now seek to take advantage of the s 361 presumption. See, eg, Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at 356 [19]- [20] (Tracey, Reeves and Bromwich JJ) (explaining that before the presumption under s 361 operates the particular reason or the particular intent for the contravening action must be precisely and distinctly alleged in the application).
[222] For each of those reasons, the notice of contention must be dismissed.
The Full Court’s decision on the aspect of Roohizadegan concerning whether Mr Roohizadegan could argue that certain people had a material effect on the decision turned on the fact that the Full Court was deciding an appeal. The Full Court’s reasons were:
(a)Mr Roohizadegan ran a different case below;
(b)the court below found that only Mr Di Marco was the decision-maker;
(c)for the appeal court to find that the three people had a material effect on the decision would be inconsistent with the judge below’s finding that Mr Di Marco was the only decision-maker; and
(d)it was not alleged in the court below that the three people had a material effect on the decision.
Roohizadegan does not stand for the proposition that the court cannot find that people other than the ostensible decision-maker had a material effect on the decision. Roohizadegan, relevantly, only means that the case run on appeal cannot factually depart from the case run at first instance.
I follow the Full Court in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804 and Leahey and Qantas. What they mean for present purposes is that the court is entitled to examine the motivations for the process that led to Mr Singh’s dismissal, including the restructure. It would be naïve to confine the enquiry to just the last step, which could have been manufactured to produce an inevitable result. In theory at least, the reasons that Monash Health took the earlier steps in the process could be highly relevant in determining its reason for the adverse action consisting of the dismissal.
In any event, Monash Health argued that Mr Singh could not contend that Dr Johnson was a decision-maker because Mr Singh had not pleaded that Dr Johnson was a decision-maker. That argument was artificial because the case was not run with the benefit of formal pleadings. Moreover, Monash Health admitted in its response and in its evidence that Dr Johnson was closely involved in the restructure, and, in fact, it was Dr Johnson who told Ms Anderson that one of her first jobs as the new director of the library would be to do a restructure.
In addition, during the course of the hearing, Mr Singh made it clear repeatedly that he alleged that Dr Johnson was one of the decision-makers, if not the only decision-maker, in relation to the restructure. For example, on the first day of the trial, during the cross-examination of Ms Anderson, counsel for Mr Singh said:
Your Honour, I’m squarely putting to [Ms Anderson] that this restructure, which is the critical consideration of this case, either in the respondent’s favour or the applicant’s, was not motivated only by restructuring the library team, but was [motivated] by Christina Johnson’s issues with the complaints that have been made about her and others from [Mr Singh]. Now, [Ms Anderson] has given evidence about the central role that [Dr] Johnson played in all of this in terms of directing the restructure and consulting her throughout the restructure.[2]
[2] Transcript 54.34-40.
In his reply in closing addresses, counsel for Mr Singh said explicitly that Dr Johnson was “an effective decision-maker”.
In a post-hearing note to the court, which arguably went beyond its permitted scope, Mr Singh noted that Monash Health referred at paragraph 58 of its outline of submissions to “decision-makers”, thereby giving the impression that there was more than one. On the other hand, Monash Health’s complete statement on this issue was that it would call all of the decision-makers who made the decisions that were said to constitute the seven alleged adverse actions. As mentioned above, Mr Singh withdrew his claim that seven adverse actions were made against him, and pressed only the dismissal. Therefore, paragraph 58 of Monash Health’s outline of submissions does not support a contention that there were multiple decision makers in respect of the dismissal. Paragraph 58 could have meant that there was a single decision-maker for each of the seven adverse actions.
In his Form 2, Mr Singh did not squarely identify a decision maker, and just referred to “the respondent”. In its response, Monash Health did not identify a decision-maker either, and also just referred to “the Respondent”.
From the extract from the transcript set out above, it is clear that Mr Singh alleged that Dr Johnson was a decision-maker in the restructure, and alleged that the restructure was an integral step in the decision to dismiss him. As this matter did not proceed with the benefit of pleadings, I consider Mr Singh’s clear statement on the first day of the trial was sufficient to put Monash Health on notice about the nature of the case against it on that issue. Moreover, Monash Health’s own case was that Dr Johnson was integral to the decision to restructure the library team. It is artificial for Monash Health to suggest otherwise. I am bound to follow Kodak, and conclude that I can examine Dr Johnson’s reasons for the restructure, and determine whether they flowed into the decision to dismiss Mr Singh.
the 2017 review
Monash Health submitted that the restructure and the eventual dismissal of Mr Singh were the flow on effects of a genuine review of the library services conducted in 2017. The subtext was that the review was conducted prior to Mr Singh making any complaints, and therefore, the subsequent restructure and dismissal were genuine and not motivated by Mr Singh’s complaints. This argument required the court to disregard the first complaint, which occurred during 2016 and 2017. However, for the reasons discussed above, I have declined to disregard that complaint.
The 2017 review was dated August 2017. By then, Mr Singh had made the first complaint, consisting of the three emails reproduced above and dated 22 June 2016, 17 August 2016 and 21 March 2017, and the complaints that were included in the Summary of Allegations and Findings mentioned above, which covered the period 8 March 2014 to 26 April 2017.
In any event, the 2017 review did not propose a restructure of the library team. Its stated main aim was to:
… assist Monash Health recruit an excellent new Chief Librarian and advise how to provide the highest quality health library service.
Recommendation 4 of 8 concerned staffing and was as follows:
Remodel library staffing
The staffing be re-shaped into roles that focus on the Library’s client groups (e.g. clinicians, researchers, educators, consumers) and services to these groups (e.g. literacy, e-services) rather than collections, systems and satellite locations.
However, it was not proposed that the remodelling occur by way of redundancy. Rather, the 2017 review noted that there were a number of vacant positions. In its summary of findings, the 2017 review stated:
Objective 1: Optimise the role and recruitment strategy for a new Chief Librarian
The current Library staffing model comprises 7.2 Equivalent Full Time (EFT) staff:
Chief Librarian (Grade 4) - 1.0 EFT
Medical Librarian (Grade 2) - 1.0 EFT
Medical Librarian (Grade 2) - 0.6 EFT
Medical Librarian (Grade 1) - 1.0 EFT
Library Technician - 1.0 EFT
Library Assistant - 1.0 EFT (contract)
Project Officer - 1.0 EFT
Library Clerk - 0.6 EFT
(Note: The Chief Librarian, Deputy Librarian (Grade 3) and Project Officer positions are currently vacant)
Australian Guidelines for Health Libraries in Australia (Health Libraries Australia, 2008) recommend the following minimum staffing levels for principal referral hospitals:
“5 Full Time Equivalent (FTE) librarians and 1 FTE library technician
OR
4 FTE librarians and 1 FTE library technician and 1 FTE library assistants”
Monash Health Library currently has 4.6 librarians (including the Deputy) and 1 library technician, which is within the range of professional staff outlined by the Guidelines. There are also 2.6 non-professional staff (including 1 contract position and 1 vacant project officer position), giving some flexibility for reshaping the staffing mix.
Role of the Chief Librarian - Position Description Using the current EFT and staffing budget allocation, position descriptions for the Chief Librarian and 2 medical librarians could be redesigned to ensure that Monash Health Library has the capabilities for the Chief Librarian and senior librarians to drive the development of a leading hospital library service.
The potential roles of the senior librarians are discussed under Objective 2 below.
Notably, the review observed that:
(a)three positions out of 7.2 full time equivalent positions were currently vacant;
(b)the number of librarian positions that were occupied (4.6 librarians) was within the recommended guidelines for medical libraries in principal referral hospitals; and
(c)the number of vacant positions gave flexibility in reshaping the staffing mix.
The review continued:
Objective 2: Outline key features and best practice for a sustainable high quality library service at Monash Health and compare this with the current service
…
The capacity of the Monash Health Library to fulfil this primary responsibility is dependent on a combination of factors, including having:
…
•the right skills mix in the team of high quality staff, with regular performance development and support for ongoing professional development;
…
Library staffing structure
Most often there are two functional ‘divisions’ in hospital libraries’ staffing structures – ‘client services’ (reference work), and ‘access services’ (collections/systems), with interlibrary loans and circulation management falling into one or the other.
We suggest that the responsibilities (and possibly titles) of the roles of the library staff falling into these broad divisions could focus on the key client groups to be served, rather than on the collections, systems and satellite locations that Monash Health Libraries serve. For example:
•a ‘clinical librarian’ has clinicians as the primary client group;
•a ‘research librarian’ serves the needs of researchers;
•an ‘education librarian’ would have responsibility for information literacy skills development (and could have consumer information literacy responsibilities);
•an ‘e-services librarian’ has responsibility for facilitating access to all library services and products for online clients.
RECOMMENDATION
(2.1)While it may not be possible to transform the Library immediately, as a longer term strategy the staffing mix could be re-shaped through
•recruitment for currently vacant positions being directed by the potential future needs, rather than ‘business as usual’;
•roles that focus on the Library’s client groups and services to these groups rather than collections, systems and satellite locations;
•regular performance reviews, aligning with the Library’s strategic/business plans;
•professional development plans for career development and supporting the Library’s direction;
•work practices and systems that promote a team approach, shared workflows, and peer learning (e.g. RefTracker for managing reference/research and responding to literature search requests);
•regular staff meetings.
The review in recommendation 2.1 did not propose any redundancies, but suggested that change could be achieved over a period of time, given the number of vacant positions. Recommendation 2.1 also proposed professional development, rather than redundancies, to align the library with its long term objectives.
Under the heading of ‘Resource Management’, the review stated that a criterion was that:
Number and qualifications of staff are appropriate to the type of organisation and recommended minimum staffing levels.
The review noted that an action for that criterion was:
*Priority for new Chief Librarian to fill existing staffing vacancies with view to future directions.
Again, the review was not proposing any redundancies, but a gradual change based on appropriately filling existing vacancies. Additionally, the review stated that another criterion was:
Planned professional development opportunities are available for staff.
The review noted that professional development was reportedly not then planned or available, and noted that an action for this criterion was:
*Priority for new Chief Librarian – implement professional development plans.
Professional development was obviously very important in improving the performance of the library team, because it could enable the team to achieve the objectives of the review without any team members being made redundant.
The review continued, under objective 4, saying:
Staffing
Challenges have been outlined in the discussion of ‘Staffing structure’ in Objective 1. Under-developed and unsuitable staffing mix are the main risk when there has been shown to be an imminent shortage of experienced health librarians in the Australian workforce. Failure to fill recent vacancies puts additional strain on the service, and can encourage the view that the Library can ‘make do’ without them. This delivers a diminished service. (See RECOMMENDATION under 2.1.)
This passage referred to “unsuitable staff”, but did not suggest that Mr Singh was unsuitable. On the contrary, he was a qualified medical librarian with many years of experience, when the review noted that there was expected to be an imminent shortage of medical librarians.
All in all, there was nothing in the 2017 review that indicated that any redundancies would be necessary, much less that Mr Singh’s redundancy would be necessary.
Mr Singh accepted that the 2017 review had a genuine objective, namely, modernising the library. However, Mr Singh argued that the 2017 review was used as a basis to remove him from the library team for unlawful reasons.
Ms anderson’s 9 March 2018 proposal
Dr Johnson offered Ms Anderson the role of director of Monash Health’s library services on or shortly before 10 November 2017. Ms Anderson has previously worked as a law librarian. When Ms Anderson accepted the role, Dr Johnson told her that one of her first tasks would be to restructure the library services team.
Ms Anderson was not able to formally commence as director until 29 January 2018. In the meantime, Ms Anderson met with the Monash Health library staff, visited each of Monash Health’s campuses, as well as other medical libraries, and liaised with Dr Johnson about the library restructure.
It will be recalled that Mr Singh filed his application to the FWC on 2 March 2018. On 9 March 2018, less than six weeks after she commenced as director of the library, Ms Anderson, prepared a chart reflecting her thoughts about a proposed restructure of the library team. It was as follows:
“Harendra” is Mr Singh. The chart said “Previously Harendra” but he was actually still employed at that time as a Grade 1 medical librarian. Clearly, Ms Anderson’s March 2018 proposal envisaged Mr Singh ceasing to be employed in the library.
The chart gives no clue as to why Mr Singh should cease to be employed in the library, save that he was thought to be a generalist librarian, and it was thought that the Grade 1 librarian position should be filled by someone who is “recently educated with systems expertise”. The chart did not explain, and no one during the hearing explained, why a generalist librarian would no longer be required, or why Mr Singh could not receive professional development to acquire “systems expertise”. As stated above, the 2017 Review noted that professional development had been sadly lacking for the library staff, and recommended that professional development be addressed as a priority for the new Chief Librarian.
At paragraph 16 of her affidavit affirmed on 27 November 2020, Ms Anderson stated that, in the previous structure, all of the librarians (that is, Mr Singh, Ms Zych, and Ms Tremelling) had been generalist librarians. Ms Anderson explained that, in the new structure, there would be specialist librarians. She noted in her 9 March 2018 chart that Ms Zych and Ms Temelling would become those specialists. Ms Anderson did not explain why Mr Singh, who was a qualified medical librarian, could not be a specialist librarian, and could not gain “systems expertise”, if he did not already have it. As mentioned above, he had gained a Master of Applied Science – Library and Information Management in 2009, about nine years before Ms Anderson’s proposal.
On 23 March 2018, Janita Keating, Education Manager, Monash Doctors Education, wrote to Gaby Czarnota, who was in the HR section, saying:
I have cc’ed Gaylene [Giles, from HR] in this email, as Alice (Director Library Services) is in discussions with her around a restructure that is expected to have impact on Harendra’s posion (sic). I under stand (sic) that the Fair Work hearing is related to reclassificaon (sic), however there are significant ongoing performance concerns and I had wanted to flag whether there might be potential f or (sic) complexities between the hearing process/outcome and the restructure process.
It must be emphasised that Monash Health did not claim in this proceeding that there were any “significant ongoing performance concerns” with Mr Singh that warranted his dismissal or warranted any action at all.
May 2018 Organisation Change/Continuous Improvement Request
In February and March 2018, Ms Anderson prepared documentation for a proposed restructure. Ms Anderson said explicitly in her affidavit affirmed on 27 November 2020 that she prepared the restructure documentation in consultation with Dr Johnson. That documentation became known as the May 2018 Organisational Change/Continuous Improvement Request. Between 19 April and 16 May 2018, it was signed and approved by:
(a)Ms Anderson;
(b)Dr Johnson;
(c)Ms Giles (HR);
(d)Ms Lowe (HR);
(e)Professor Loh (CMO); and
(f)Mr Stripp (CEO).
Although the May 2018 Organisational Change/Continuous Improvement Request was signed off by six people, it was not suggested that Ms Giles, Ms Lowe, Professor Loh or Mr Stripp were motivated by proscribed reasons. Mr Singh only submitted that Dr Johnson, and possibly Ms Anderson, were motivated by proscribed reasons. All six signatories to the May 2018 Organisational Change/Continuous Improvement Request strenuously denied being motivated by proscribed reasons.
The May 2018 Organisational Change/Continuous Improvement Request began as follows:
Organisation Change Title: Restructure of the Library Team
Department: Library
Program: Library service
Site: All
Executive Summary:
This organisational change request proposes a restructure of the Monash Health library team. The changes will cause two redeployments or redundancies and a reduction in EFT from 7.0 to 6.4, which produces a saving of $5,482.46 compared to budget (including EBA increases).
Brief description:
Following an independent service scoping paper and benchmarking in “Monash Health Library Future Directions: Consultation, July August 2017”, it has become evident that the current MH Library service is based on an outmoded model, dominated by site-based physical spaces which emphasises storage and preservation of books and periodicals. The administrative burden in maintaining this outmoded model combined with a lack of staff initiative has meant that the team’s skills have not progressively developed to support a modern digital service that can meet the increasing demands of patrons, specifically clinicians, researchers and parents/families.
In order to put into practice MH’s new strategic goal to relentlessly pursue excellence to provide a positive experience for the people, families and communities we care for It is proposed to shift the model to one based on digital services so digitalized materials and information can be accessed when-ever, where-ever the user or resource is located. In essence, the library will now actively seek to meet the needs of its patrons, rather than provide resources that are simply available.
This proposal promises to contribute significant impact in the MH strategic areas of:
•Integration of training, research and innovation to continuously learn and improve our care, measuring and improving our outcomes
•Orientation of our care towards communities to improve people’s access to services in their usual environment to help people optimise their independence, health literacy and wellbeing
•Managing our resources wisely to provide the best possible value and sustainability
The proposed restructure’s key aspects include:
•Shift services from individual sites and print collections to online services
•Create a centralised coordination of training and research
•Realign all position descriptions to reflect the skills and expertise or a modern library service
•Current staff may transition to apply for, the newly created positions
•Staff who are inelligible [sic] for the newly created positions or unsuccessful in the application process will be offered redeployment opportunities or receive a redundancy
The following table outlines the realignment of staff positions.
Existing positions 2017/18 Budget Plus EBA Existing EFT Current Salary Revised positions Revised EFT Revised Salary Director, Library Services 118,224.00 121,770.72 0.6 97,667,78 No change 0.8 97,667.78 Deputy Librarian 0 - 1 - Library Systems & Operations Manager 1 90,000.00 Library manager – Kingston and Moorabbin 87860 90,495.80 1 88,124.40 Librarian – Collections Specialist 1 88,124.40 Library manager – Dandenong 55352 67,012.56 0.6 55,667.62 Librarian – Research Specialist 0.6 55,657.62 Medical Librarian 80426 82,637.75 1 81,348.19 Library Cadet 1 65,000.00 Library Assistant 57100 58,813.00 1 51,693,20 Library Technician 1 70,000.00 Library Assistant 44681 46,027.61 0.6 44,419.94 Library Assistant 0.6 44,687.00 Inter Library Loans Officer 67924 59,661.72 1 56,674.89 Not carried over 0 0 Totals 501, 572.00 516,619.16 7 475,586.62 6.4 511,136.70 The following org charts provide an overview of the restructure:
Interestingly, the proposed restructure saved about $5,000 pa, in a budget of about $500,000 pa. That is a 1% saving. It is probably safe to conclude that the restructure was not for cost-cutting reasons. Having said that, the budgetary position was a little more complicated than the raw figures suggest. That is because the Deputy Librarian’s position was vacant but was intended to be filled, and the Inter Library Loans Officer position was filled but was not intended to be carried over. In addition, Mr Singh’s position as a Medical Librarian was intended to be replaced with the position of Library Cadet, at a saving of about $17,000 pa. Missing from the May 2018 proposal was the Project Officer position, which had appeared in the 2017 Review. That position had been filled by Ms Bacic’s husband, contrary to the protestations of Mr Singh. They had both left the library by the time of the May 2018 Organisational Change/Continuous Improvement Request.
The May 2018 Organisational Change/Continuous Improvement Request mentioned for the first time the Library Cadet position, as a substitute for Mr Singh’s position. Ms Anderson said in her affidavit affirmed on 27 November 2020 that the Library Cadet was intended to be a Grade 1 trainee position for 12 months.
The May 2018 Organisational Change/Continuous Improvement Request continued:
Employee Relations – Impact on Staff
Total number of affected staff 6
Two roles in the restructured team call for competencies and skills not present among the current staff group. However, certain staff can be suitably matched to revised roles. The plan for each role is outlined in the table below.
Existing position Revised position Action Director, Library Services No change (revised in 2017) No change (revised in 2017) Deputy Librarian Library Systems & Operations Manager Open to external applications Library Manager – Kingston and Moorabbin Librarian – Collections Specialist Slava Zych transitions to this role Library Manager – Dandenong Librarian – Research Specialist Teresa Tremelling transitions to this role Medical Librarian Library Cadet Open to external applications Librarian Assistant Library Technician Helen Rowe transitions to this role Librarian Assistant Library Assistant Open to internal applications Inter Library Loans Officer Not carried over N/A
Ms Anderson did not explain in her affidavit or elsewhere why a library cadet would be better than a qualified librarian, or why a library cadet would be better than the professional development of the existing staff.
There may be some debate about whether there could be expected to be emails and memos explaining why a restructure was necessary. However, one place that an explanation could have been expected was in the Organisational Change/Continuous Improvement Request dated May 2018. That document talked about the need to modernise and move the collection online and provide online services. However, again, it did not explain how those objectives would be achieved by employing a library cadet instead of a Grade 2 Librarian. To my mind, it is really not self-evident.
d. The post-it note
The post-it note is discussed above. However, Mr Singh highlighted it as a critical item of evidence that showed that Dr Johnson was thinking about Mr Singh in May 2017, and was very possibly motivated by his complaints about her in thinking about a restructure that removed his position.
Monash Health argued in relation to the post-it note that it was written years before the restructure, and argued it was utterly absurd to glean from Mr Singh’s initials on the post-it note that Monash Health dismissed him for proscribed reasons.
However, the post-it note was not written years before the restructure was thought of by Dr Johnson, as the discussion above shows. Dr Johnson in fact wrote on the same post-it note:
Restructure with input by new Chief or before
Additionally, the post-it note was attached to a memo written by Dr Johnson in May 2017 which included:
My thoughts
…
Consider removing the following underskilled positions:
Grade 1 MMC | Library Assistant | ? Library Technician MMC and/or Library Assistant MMC
It is true that Dr Johnson’s thoughts from May 2017 took a long time to be implemented. However, they were implmented eventually.
e. Discussions in December 2017 about the restructure
Mr Singh noted that Ms Anderson emailed Dr Johnson on 21 December 2017 saying that she had “firmed up” her “ideas about roles and resourcing”, and would put them in a planning document. Ms Anderson said that she never prepared the planning document. It was certainly not produced to the court by Monash Health.
However, Mr Singh said that the very fact of this email on 21 December 2017 was surprising because:
(a)it was one day after Mr Singh’s solicitor had written to Monash Health seeking a reclassification of his position;
(b)Ms Anderson’s email was written more than one month before she formally commenced her employment at Monash Health; and
(c)Ms Anderson was from a legal library background, and she could not have known much about the needs of a medical library before even beginning in her position.
Mr Singh argued that Dr Johnson conveyed to Ms Anderson in December 2017 the roles and people that Dr Johnson wanted in the restructure. Mr Singh argued that Dr Johnson at this point was motivated by Mr Singh’s complaints about his reclassification. Mr Singh argued that Dr Johnson’s denials that she was aware of Mr Singh’s solicitor’s letter the day after it was received were implausible.
Monash Health argued that Dr Johnson’s evidence that she was unaware of Mr Singh’s solicitor’s letter the day after it was received should be believed.
I do not consider that Ms Anderson’s email dated 21 December 2017 advances the matter very much. It does not say anything about Ms Anderson’s ideas about roles at the time. We already know, from Ms Anderson’s own evidence, that Dr Johnson had told Ms Anderson in November 2017 that one of her first jobs would be a restructure of the library team. We already know that Dr Johnson had thought in May 2017 of “removing” Mr Singh’s position.
f. The 9 March 2018 organisational chart
This is the document set out above that was prepared by Ms Anderson on 9 March 2018 and which said, in relation to the Grade 1 Medical Librarian role, ‘Previously Harendra’, meaning Mr Singh. Mr Singh noted that, with this document, it was clear that there was to be no place for him in the new structure. He noted that this document did not use the word “cadet”. That word did not appear in any document before the court until the Organisational Change/Continuous Improvement Request dated May 2018. Mr Singh submitted that it was decided to change his position to a cadet position so that he could not realistically apply for it. Mr Singh said that the motivation for this came from Dr Johnson.
Ms Anderson said in her affidavit affirmed on 27 November 2020 that:
In the new structure there was no requirement for a Grade 1 Librarian role as more advanced and specialised skills were required to perform the Librarian roles, while clerical, administrative and transactional tasks would be completed by a Library Technician and Library Assistant (ie non librarian support/administrative staff). The Library Technician and Library Cadet roles are both Grade l roles but they are not for qualified librarians. The Library Cadet traineeship, which is for a period of 12 months, combines some operational work with a focus on systems support and projects that improve the library service. The Library Cadet is expected to draw on their recently obtained systems skills and knowledge.
In her affidavit dated September 2021, Ms Anderson said that, in her previous role as Information Services Manager at Lander and Rogers:
I had also seen recent graduates undertake rotations through a law library and this gave me the idea to create a traineeship type role.
In her oral evidence, Ms Anderson said that, after distributing her 9 March 2018 draft, she discussed the title for the Grade 1 position with Ms Giles, from HR. Ms Anderson said that she suggested a few different titles, namely, ‘graduate’, ‘intern’ and ‘cadet’. She said that she and Ms Giles settled on cadet.
In relation to Ms Anderson’s 9 March 2018 draft, Monash Health said that it was just a draft that had no status at all.
However, it is very telling that the 9 March 2018 draft was already indicating very clearly that there would be no place for Mr Singh in the new structure, and Ms Anderson had not yet figured out any legitimate reason for removing Mr Singh from the new structure. She clearly, at this point, had not yet formulated her ideas about the cadet position.
g. “if they are going to continue working here”
Mr Singh emphasised an email exchange between Ms Anderson and Dr Johnson on 11 November 2018. It occurred after Monash Health had agreed at the FWC to upgrade Mr Singh’s position, and after he had returned to work after an extended period of leave.
Ms Anderson emailed Dr Johnson at 9.32 am saying:
…
On Friday the team received the amendment and they were upset and angry. Slava and Teresa are suggesting they should be re-classified and that other team members should start utilising their personal leave the same way Harendra has done. Slava, Teresa and Brigitte all feel this way. Neither Sue nor Helen have spoken like this - most likely because they are in Clayton with me and see first hand that I am dealing with things.
Brigitte has listen to me but I am not getting through to Slava and Teresa. I have tried to empathise and be reasonable... but I am very disappointed that they would copy a bad example rather than providing an example of their own. I have tried to explain that we all have to own our own behaviour and anyone reclassified will be expected to deliver at that level. Would you have time to speak with each of them in the next week? I think a phone call/second voice might help.
…
Dr Johnson replied at 9.47 am saying:
…
Not impressive behaviour. They need to demonstrate they wish to pull with the team if they are going to continue working here.
What are they hoping to be reclassified to & on what basis?
…
Mr Singh said that, by these emails, Dr Johnson evidenced an instant willingness to dismiss people who sought a reclassification.
Monash Health argued that Dr Johnson’s evidence was that her concern was that the two employees in question were behaving inappropriately by threatening to take leave to frustrate the restructure process, rather than taking leave for a legitimate purpose. Monash Health also observed that Dr Johnson’s evidence was that Mr Singh’s extended period of leave had been for a legitimate purpose. Therefore, Monash health argued, the emails of 11 November 2018 were irrelevant.
The manner in which this point was raised with Dr Johnson, and her evidence on this point, were as follows:
If we go back to that first page of the document at court book 692, we can see your response to that where you said, “Not impressive behaviour. They need to demonstrate they wish to pull with the team if they’re going to continue working here”?‑‑‑I can see where I’ve written not impressive behaviour but that was not pertaining to the reclassification. That was around the fact that Slava and Teresa seemed to be implying that they would use personal leave inappropriately – were resentful of what was – Harendra taking leave.[3]
[3] Transcript 152.42-46, 153.1-2.
It can be seen that Dr Johnson was very quick to say that her indication of a willingness to dismiss people was not related to them seeking reclassification, as Mr Singh did, but to them threatening to take leave inappropriately. The speed with which Dr Johnson denied her comments were connected with a reclassification request, and that denial being made before Dr Johnson had even been asked a question about her comments in her email, suggest that Dr Johnson had thought about this email, and had worked out what she thought would be a good way to deal with it.
However, it was not a good way to deal with it. A fair reading of Ms Anderson’s email is that Ms Zych and Ms Tremelling thought that it would be a good idea to take extended personal leave to achieve a reclassification of their own positions, as Mr Singh had done. In Ms Anderson’s email, the leave was not a separate issue from the reclassification. That Dr Johnson knew that is apparent from her email, where she said, immediately after indicating her willingness to dismiss people:
What are they hoping to be reclassified to & on what basis?
I consider that the emails dated 11 November 2018 are clear evidence that Dr Johnson considered that she could dismiss staff from their positions if they behaved in a manner that she deemed inappropriate, such as by seeking a reclassification of their positions.
the opportunity to apply for the two grade 2 positions
Monash Health emphasised that, following Mr Singh succeeding in his FWC proceeding, and his position being upgraded to a Grade 2 position, Monash Health amended its restructure proposal to give Mr Singh the opportunity to apply for the Grade 2 positions. Monash Health asked rhetorically whether it would have done that if it had in fact been actuated by unlawful reasons.
The principal difference between the November 2018 proposal and the May 2018 proposal, was that, instead of saying:
Librarian – Collections Specialist Slava Zych transitions to this role
Librarian – Research Specialist Teresa Tremelling transitions to this role
the November 2018 proposal said:
Librarian – Collection Specialist (G2) There are three potential candidates in the existing team
Librarian – Research Specialist (G2) There are three potential candidates in the existing team
Mr Singh said that he did not apply for the Grade 2 positions in the new structure because he knew that they had been earmarked for other people. They very clearly were. Names were attached to those positions in the May 2018 proposal, and, indeed, in Ms Anderson’s 9 March 2018 draft. It obviously would have been extremely uncomfortable for Mr Singh to apply for positions which had been so clearly earmarked for two of his colleagues.
To answer Monash Health’s rhetorical question, Monash Health amended the restructure proposal because it was obliged to. As Mr Singh had secured an upgrade of his position in the FWC, Monash Health had no choice but to give him the opportunity to apply for the positions at his new level. I daresay that was the advice from the HR section. The November 2018 amendments to the restructure proposal make no difference to my assessment of Monash Health’s motivations.
Monash Health argued that the fact that Mr Singh was able to apply for the two Grade 2 librarian positions, but deliberately chose not to, effectively severed the causal connection between anything that occurred previously and the eventual dismissal. However, given how clear Monash Health had previously been that Ms Zych and Ms Tremelling would transition to the two Grade 2 positions, it is fanciful to suggest that Mr Singh could reasonably have expected to be fairly considered for those positions. The November 2018 restructure proposal, to the extent that it suggested that Mr Singh might be fairly considered for the new Grade 2 positions, was a sham. It was entirely understandable that Mr Singh did not apply for those positions. By choosing not to apply, he did not break the causal connection. The situation may have been different if the 9 March 2018 draft proposal and the May 2018 proposal had not explicitly stated that Ms Zych and Ms Tremelling would transition to the two Grade 2 positions.
the redeployment opportunity
Monash Health also emphasised that it had assisted Mr Singh with redeployment by engaging an external service to help him, and by alerting him to approximately 27 jobs at Monash Health that he could have applied for. He only applied for one, which he did not get.
The evidence provided to the court did not descend to the detail of whether the 27 jobs proposed by Monash Health were realistic and suitable prospects for Mr Singh. I have no way of assessing whether they were. Consequently, I cannot take them into account. I consider the redeployment opportunity to be irrelevant for present purposes.
Another person losing their job
Monash Health argued that the court could be satisfied that the restructure was genuine, and that Mr Singh’s position did not cease for a prohibited reason, because another person lost their job in the restructure. As discussed above, there can be more than one reason for an adverse action, but an applicant will succeed if a substantive and operative reason for the adverse action was a prohibited reason.
In the present case, Mr Singh conceded that the restructure was genuine to the extent that it sought to modernise the library and move it away from hard-copy collections and towards on-line collections. In addition to changing Mr Singh’s position to a library cadet position, the May 2018 proposal was for the interlibrary loans officer position to cease. Presumably, an interlibrary loans officer would not be required in a more on-line environment.
What this highlights is that the reasons for the interlibrary loans officer’s position ceasing to exist might have been entirely different from the reasons for Mr Singh’s position ceasing to exist. The fact that another person lost their job in the restructure does not insulate the loss of Mr Singh’s job from scrutiny.
has monash health discharged its burden?
As discussed above, the court must accept that the reasons for Monash Health dismissing Mr Singh were the reasons that Mr Singh alleged, being his complaints, his FWC proceedings, and his taking of leave, unless Monash Health proves otherwise.
I do not consider that Monash Health has proved otherwise. Monash Health’s case was that Mr Singh’s position had to go to modernise the library. However, Monash Health did not satisfactorily explain why that was so.
More particularly, the 2017 review specifically noted (at page 5, CB247) that one of two models recommended by the Australian Guidelines for Health Libraries in Australia for principal referral hospitals required five full time equivalent librarians. Monash Health did not explain why it was necessary for the new structure to have four librarians[4] rather than five[5]. It is true that those guidelines said an alternative model required four full-time equivalent librarians. However, no explanation was given to the court about why the four librarian model was preferred over the five librarian model.
[4] The Director, the Manager, the Collections Specialist, and the Research Specialist.
[5] The Director, the Manager, the Collections Specialist, the Research Specialist and Mr Singh as, for example, a clinical librarian, an education librarian or an e-services librarian.
The only clue as to why Mr Singh was no longer required was in Ms Anderson’s 9 March 2018 chart, where she described Mr Singh as a generalist librarian. However, as Ms Anderson explained at paragraph 16 of her affidavit affirmed on 27 November 2020, Ms Zych and Ms Tremelling were generalist librarians too. It was not explained why they could automatically transition to a specialist role, and Mr Singh could not. It was not explained how they could be retrained as specialists but Mr Singh could not.
It was also not explained to the court why, in attempting to modernise the library, it was better to have a library cadet (being a student or recent graduate) rather than a qualified medical librarian, especially when the 2017 review said that there was expected to be an imminent shortage of qualified medical librarians. Moreover, Mr Singh’s qualification was a Master’s from 2009, which was only nine years before the restructure proposal. His knowledge could hardly be described as antiquated.
It was not explained why Ms Anderson, in her 9 March 2018 draft, said that the position occupied by Mr Singh was ‘Previously Harendra’, when she had not yet formulated the idea of a library cadet to replace him.
It was also not explained why Monash Health chose a restructure proposal that involved redundancies, when the 2017 review did not indicate that any redundancies were needed. On the contrary, it indicated that the necessary change could be achieved by filling vacant positions with appropriately skilled people, and by professional development.
In the absence of explanations for these matters, I am not persuaded that Monash Health did need to remove Mr Singh’s position from the library team to modernise the library, or that his eventual dismissal was the natural consequence of the need to modernise the library. It follows that I am satisfied that Monash Health dismissed Mr Singh for the proscribed reasons he alleged.
However, for completeness, I also consider that Dr Johnson, despite her strenuous denials, did engineer a library restructure, in which there was no place for Mr Singh, and which resulted in his eventual dismissal, because he had complained about her. The reasons for that are discussed above, but in summary are:
(a)Dr Johnson knew that Mr Singh had complained about her;
(b)Dr Johnson wrote a memo in May 2017, after at least some of those complaints, in which she said that she had thought of removing his position from the library team;
(c)Dr Johnson told Ms Anderson before she had even commenced employment at Monash Health in January 2018 that she would be required to restructure the library as a priority;
(d)Dr Johnson and Ms Anderson had a number of discussions about the library restructure;
(e)it can be inferred from how quickly Ms Anderson developed her 9 March 2018 and May 2018 proposals after commencing as director of a medical library (having come from a law library) that her 9 March 2018 and May 2018 proposals reflected Dr Johnson’s requirements;
(f)Ms Anderson 9 March 2018 proposal described Mr Singh’s position as ‘Librarian -Previously Harendra’ (and other positions were earmarked for Ms Zych and Ms Tremelling) without any explanation for Mr Singh’s position as a librarian being no longer required;
(g)Ms Anderson’s idea that Mr Singh’s Medical Librarian position would be converted to a library cadet position came after Ms Anderson and Dr Johnson had already decided that Mr Singh’s position would be terminated; and
(h)Dr Johnson indicated a willingness to dismiss Ms Zych and Ms Tremelling when they spoke of seeking a reclassification of their positions, as Mr Singh had done.
While Monash Health’s witnesses all denied having been motivated by proscribed reasons, it was more than sufficient for Dr Johnson alone to have been motivated by proscribed reasons. I consider that Dr Johnson was motivated by the complaints that Mr Singh made against her to plan, with Ms Anderson, the restructure that removed Mr Singh’s position and eventually led to his dismissal. I consider that Mr Singh’s FWC proceedings compounded the problems, and were reasons, along with Mr Singh’s further complaints, for Ms Anderson and Dr Johnson to pursue the restructure that led to Mr Singh being dismissed from Monash Health.
There will be orders accordingly.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 1 April 2022
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