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…
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- Case
- [2022] FedCFamC2G 229
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CaseChat Overview and Summary
In Singh v Monash Health, the parties were in dispute about the relevant decision and decision-maker in a case concerning an employee's dismissal. Mr Singh argued that his dismissal, which followed a library restructure and redeployment opportunity, constituted adverse action for a proscribed reason if the motivations behind the restructure were improper. Monash Health contended that the court should only consider the dismissal in isolation, and that the decision to dismiss was made solely by Ms Anderson. The court was required to determine whether the motivations behind the library restructure and redeployment could be considered in assessing whether the dismissal constituted adverse action for a proscribed reason, and whether Dr Johnson could be considered a decision-maker.
The court examined the reasoning process employed by each person involved in the decision to determine whether their reasoning processes were free of the alleged proscribed reasons. It found that if one or more of the reasons employed by one or more of them was a proscribed reason, it would impugn the ultimate decision. The court noted that the authorities place the relevant focus on the reasoning process that led to the ultimate decision, and that 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.”
The court concluded that the decision to dismiss was made by Ms Anderson, and that Dr Johnson's motivations behind the library restructure could not be considered in assessing whether the dismissal constituted adverse action for a proscribed reason. The court found that the dismissal was not adverse action for a proscribed reason, and that Monash Health was not liable to pay compensation to Mr Singh. The court also found that Dr Johnson was not a decision-maker in the dismissal process, and that Monash Health was not estopped from asserting this position.
The court ordered that Monash Health was not liable to pay compensation to Mr Singh, and that Dr Johnson was not a decision-maker in the dismissal process. The court further ordered that Monash Health was not estopped from asserting that Dr Johnson was not a decision-maker.
The court examined the reasoning process employed by each person involved in the decision to determine whether their reasoning processes were free of the alleged proscribed reasons. It found that if one or more of the reasons employed by one or more of them was a proscribed reason, it would impugn the ultimate decision. The court noted that the authorities place the relevant focus on the reasoning process that led to the ultimate decision, and that 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.”
The court concluded that the decision to dismiss was made by Ms Anderson, and that Dr Johnson's motivations behind the library restructure could not be considered in assessing whether the dismissal constituted adverse action for a proscribed reason. The court found that the dismissal was not adverse action for a proscribed reason, and that Monash Health was not liable to pay compensation to Mr Singh. The court also found that Dr Johnson was not a decision-maker in the dismissal process, and that Monash Health was not estopped from asserting this position.
The court ordered that Monash Health was not liable to pay compensation to Mr Singh, and that Dr Johnson was not a decision-maker in the dismissal process. The court further ordered that Monash Health was not estopped from asserting that Dr Johnson was not a decision-maker.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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”.
Ratio Decidendi
Legal Principle Established
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