FEDERAL COURT OF AUSTRALIA

Monash Health v Singh [2023] FCAFC 166

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed in part.

3.    The declaration and order made by the primary judge on 1 April 2022 be set aside.

4.    Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the matter be referred forthwith to mediation by a Registrar of the Court.

5.    The mediation take place at the earliest mutually convenient date.

6.    In the event that the matter does not resolve at or shortly after the mediation, the matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for a new trial of the respondent’s claim before a differently-constituted court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The Fair Work Act 2009 (Cth) (FW Act or Act) relevantly proscribes the taking of “adverse action” by one person against another because the other person has exercised a “workplace right”. An employer who dismisses an employee for such a reason contravenes s 340 of the Act. Where, in an application in relation to such a contravention, it is alleged that the employer took action for a particular reason (prohibited reason), there is a presumption that the action was taken for that reason and it is for the employer to prove otherwise (s 361).

2    Harendra Singh was employed as a librarian in the medical library of Monash Health when his employment came to an end in January 2020 after his position was made redundant. He believes that the redundancy was not genuine. He considers it was a device deployed by Monash Health to rid it of a troublesome employee and, in truth, his employment was terminated because of various complaints he had made. Accordingly, he commenced proceedings in the court below seeking reinstatement, compensation and civil penalties on the basis that Monash Health had taken adverse action against him, amongst other things, by dismissing him because he had exercised certain “workplace rights”. The other adverse action claims were abandoned at trial.

3    Monash Health adduced evidence from a number of witnesses in an attempt to prove that the redundancy was indeed genuine and Mr Singh was not dismissed for a prohibited reason. All of them denied that the decision to remove Mr Singh was made for any of the reasons he advanced. Despite that evidence, the primary judge found in favour of Mr Singh and went on to make a declaration that Monash Health contravened s 340(1)(a)(ii) of the Act by dismissing Mr Singh 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 personal leave. Her Honour ordered that the questions of compensation and penalty be addressed at a later date.

4    Monash Health applied for leave to appeal and, in the event that leave is granted, orders allowing the appeal, setting aside the orders made in the court below and substituting an order dismissing Mr Singh’s application or remitting the matter to a differently-constituted court for a new trial.

The background facts

5    Monash Health is the largest health provider in Victoria. It has over 20,000 employees, including doctors, other health professionals, administrative and support staff.

6    Mr Singh was employed by Monash Health between 1996 and 7 January 2020 in a variety of roles in the medical library of Monash Health (J[1]). Initially he was employed as a “Serials Librarian/Computer Clerk/Library Assistant” and thereafter as a “Medical Librarian Grade 1” (J[1]). He was made redundant with effect from 7 January 2020 following a restructure of Monash Health’s library services.

7    Mr Singh’s principal allegation was that both the restructure and the redundancy were “shams” in that they were contrived in order to effect the termination of his employment because he made 13 complaints in relation to his employment, commenced proceedings against Monash Health in the Commission, and took extended personal leave (J[2]).

8    Monash Health submitted that the restructure and the eventual termination of Mr Singh’s employment arose from a genuine review of the library services which had commenced in 2017, pre-dating the beginning of the employment of Ms Alice Anderson, the Director of Library Services and the person who Monash Health contended decided to terminate Mr Singh’s employment.

9    The timeline of events relevant to this appeal may be summarised in the following way.

10    In 2017, Monash Health embarked upon a review of its library services.

11    Mr Singh sent three emails between 22 June 2016 and 21 March 2017 to various recipients which he ultimately alleged comprised the “First Employment Complaint”:

(a)    requesting that his position be reclassified from a Medical Librarian Grade 1 to a Grade 2 (J[56]);

(b)    seeking back-pay from 2012 on the basis that he had been performing the duties of a Grade 2 Librarian since that time (J[57], J[58]);

(c)    raising concerns regarding the transparency and fairness of the appointment processes with respect to a Project Officer role (J[57]); and

(d)    alleging he was bullied and discriminated against by employees of Monash Health, including Dr Christina Johnson, who was the Director of Monash Doctors Education, and as a result Mr Singh suffered from stress and anxiety (J[58]).

12    On 21 September 2017 and 21 December 2017, Mr Singh again requested reclassification of his position and sought back-pay. Monash Health rejected these claims (J[5] and [7]). On 2 March 2018, Mr Singh lodged an application in the Commission seeking reclassification and back-pay. This proceeding was resolved on 1 November 2018 by agreement following which Mr Singh was reclassified as a Grade 2 Librarian and reimbursed back-pay from 2012 (J[8]).

13    On 29 January 2018, Ms Anderson commenced as the Director of Library Services at Monash Health. Ms Anderson was told by Dr Johnson, the Director of Monash Doctors Education, that one of her first jobs would be to restructure the library and its services (J[6]). Between January and March 2018, Ms Anderson met with library staff, visited each of Monash Health’s campuses, as well as other medical libraries, and liaised with Dr Johnson about the library restructure (J[107]).

14    On 9 March 2018, Ms Anderson prepared a chart reflecting her thoughts about a proposed restructure of the library team which envisaged the removal of Mr Singh’s position (the 9 March 2018 Proposal) (J[107]-[109]).

15    On 16 May 2018, Monash Health’s Chief Executive Officer, Andrew Stripp, authorised a restructure of the library team which involved making two positions redundant (one of which was Mr Singh’s), while maintaining the other library employees at their existing level (the May 2018 proposal) (J[9]). The May 2018 proposal was never implemented but it was replaced by an amended restructure proposal in November 2018 (the November 2018 proposal) which was substantially the same (J[10]).

16    On 21 May 2018, Ms Anderson and Ms Burns (the head of People and Culture (HR) at Monash Health) met with Mr Singh to inform him of the details concerning the May 2018 proposal. The May 2018 proposal contemplated Mr Singh’s position no longer being required given the role was reclassified downwards to that of a Grade 1 Library Cadet, for which Mr Singh was over-qualified (J[11]).

17    On 29 May 2018, Mr Singh emailed Mr Stripp complaining about the May 2018 proposal, and sought his intervention to prevent the implementation of the proposed restructure (J[12]). On 2 June 2018, Mr Singh emailed Ms Anderson and Ms Burns also complaining about the May 2018 proposal.

18    On 5 June 2018, Mr Singh advised Ms Burns that he was on personal leave “due to illness”. He remained on personal leave until 7 November 2018 (J[14]). Upon his return, Mr Singh formally began working at the Grade 2 Librarian level following the resolution of the proceedings in the Commission (J[17]).

19    On 9 November 2018, Ms Anderson provided Mr Singh with the November 2018 proposal, which, consistent with the May 2018 proposal, involved replacing Mr Singh’s position with a Grade 1 Library Cadet position (J[19]).

20    For almost a year, from 12 November 2018 until 6 October 2019, Mr Singh again took personal leave. During this time, Monash Health invited Mr Singh to apply for various roles. Mr Singh only applied for one role, for which he was unsuccessful (J[20]). In the period in which Mr Singh was on personal leave, he again sent various emails with varying complaints. On 20 November 2018, Mr Singh emailed Mr Stripp alleging that he had been discriminated against on the basis of his proceedings brought in the Commission (J[21]). On 23 November 2018, Mr Singh emailed Ms Anderson and Ms Burns alleging that adverse action had been taken against him due to the exercise of workplace rights (J[22]). Mr Singh sent a similar email to Ms Burns again on 6 December 2018 (J[23]), and also to Ms Lowe (Executive Director of HR at Monash Health) on 10 December 2018 (J[24]).

21    On 29 March 2019, Ms Anderson wrote to Mr Singh advising him that his redeployment period went from that date until 28 June 2019. On the same day Mr Singh emailed Ms Anderson and Ms Burns alleging that the process was “revenge and purposeful retaliation against [him]” for commencing proceedings in the Commission (J[25]).

22    On 7 April 2019, Mr Singh emailed Ms Anderson alleging that he was under “too much pressure” to accept the restructure and redeployment (J[26]). On 29 April 2019, Mr Singh again wrote to Ms Anderson alleging that adverse action had been taken against him because of the exercise of his workplace rights (J[27]).

23    On 24 September 2019, Mr Singh advised Monash Health that he intended to return to work from his period of leave (J[28]). On 3 October 2019, Mr Singh attended a meeting where he was informed not to attend work. He received a letter stating that his position was no longer required, and a further redeployment period applied from 7 October 2019 until 6 January 2020 (J[29]). On 7 October 2019, Mr Singh emailed Ms Burns and stated, inter alia, that he would participate in the redeployment process (J[30]).

24    On 7 January 2020, Mr Singh was advised that, given the redeployment process had ended and he had not obtained a new position, his employment would be terminated by reason of redundancy (J[31]).

25    The trial took place over four days (commencing on 27 July 2021 and concluding on 17 February 2022). A total of eight witnesses were called. The matter took an unusual course. On the first day of hearing, Dr Johnson and Ms Anderson were cross-examined. However, part way through Ms Anderson’s evidence the court ordered, of its own motion, that the listing for the following day be vacated, the hearing be adjourned until 4 August 2021 and Monash Health produce “copies of all documents, including emails, relating to Monash Health’s restructure of its library service affected in 2019”. Orders were made subsequently extending the time for compliance with the document production orders and fixing the time for the resumption of the hearing. Thereafter, Mr Singh made an application for discovery, which was heard over two days on 13 October and 18 November 2021, and refused. But some documents were produced by Monash Health and further evidence was filed by both parties. The trial then resumed on 15 February 2022.

26    The primary judge found that Mr Singh had been dismissed for three prohibited reasons: because complaints had been made in relation to his employment, because he had filed a proceeding in the Commission and because he had taken personal leave.

The leave application

27    Monash Health applied for leave to appeal but a question was raised as to whether leave to appeal was required. For the reasons given below, the answer is that leave is required.

28    This Court has no jurisdiction to entertain an appeal from “an interlocutory judgment”, save and except insofar as it grants leave to bring one: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24(1A). The question of whether leave to appeal is required, then, turns solely upon whether the primary judgment qualifies as “an interlocutory judgment” for the purposes of s 24(1A) of the FCA Act.

29    That question arises with some frequency in matters that are resolved by the determination of separate questions; most commonly questions of liability and, if necessary, relief. That is what here occurred. The primary judgment was only concerned with the question of liability. The issue of what relief might be granted was reserved for further hearing, which has yet to occur.

30    In this Court, the prevailing wisdom is that no appeal lies without leave from a judgment made in determination of a separate question: see, for example, Power Ledger Pty Ltd v Griffiths [2021] FCA 624; 308 IR 147 at 150–3 [13]–[25] per Banks-Smith J; King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1639 at [4]–[9] per Snaden J. See also Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [6] per Leeming JA, with whom Kirk JA agreed, Simpson AJA agreeing in the result.

31    Whether leave to appeal is required in circumstances such as the present, however, is a question not entirely free from doubt. In Damorgold Pty Ltd v JAI Products Pty Ltd [2014] FCA 448, Tracey J made the following observations (at [9]):

In TAG Pacific Limited v McSweeney [1992] FCA 168; (1992) 34 FCR 438 Olney J held that, in a split trial in which questions relating to liability are ordered to be determined as preliminary questions, orders finally determining those questions are not to be treated as interlocutory: see at 444-5. A similar conclusion was reached by the majority of the Full Court of the Supreme Court of Victoria in City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 173-175. See also Cairns B, Australian Civil Procedure (10th ed, Lawbook Co, 2013) at 568-569. The orders made by His Honour in relation to the revocation of the patent bear the same character of finality as would have attended such orders had they been made following a trial in which questions of liability and relief had been considered in the normal manner. Left undisturbed those orders would finally determine the issues relating to the validity of the patent. They fall within the defined meaning of the word ‘judgment’ for the purposes of s 24(1) of the Act.

32    In N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd [2014] FCA 288; 220 FCR 166, Rangiah J acknowledged the competing views, noting (at 167–8 [8]–[9]):

There is a division of authority in this Court as to whether a declaration made in respect of a separate issue which does not dispose of the whole proceeding is interlocutory or final. A long line of authority holds that such a judgment is interlocutory: see, for example, the judgments of the Full Court in Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 at 454; Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 242; Caboche v Ramsay (1993) 27 ATR 479 at 489-490; 119 ALR 215 at 226; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 593-594; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 457; Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 at [8]-[9]; Lewis v Hall (2005) 68 IPR 89 at [7]. These cases applied the reasoning of the High Court in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 767-768.

Other decisions of this Court support the view that a declaration made in respect of a separate issue which does not finally dispose of the case is a final judgment, so that leave to appeal is not required. That view was strongly expressed by Finkelstein J in Warramunda Village Inc v Pryde (2002) 116 FCR 58 at [65]-[70]. In Ho v Grigor (2006) 151 FCR 236, the Full Court cited those passages from the judgment of Finkelstein J with approval. However, the Full Court was not directly deciding the question addressed by Finkelstein J and its apparent approval of those views appears to be obiter dicta. For present purposes, I consider that I am bound by the earlier Full Court decisions to conclude that the judgment was interlocutory and that leave to appeal is required.

33    In Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767, the High Court upheld an objection to the competency of an appeal where, in the judgment from which the appeal was brought, the Full Court of this Court had granted permanent injunctions restraining the appellant (who was then the respondent) from infringing the opposing party’s copyright and pronounced orders requiring the respondent to serve notice of any intention to pursue a claim for damages, as well as other orders concerning another cause of action.

34    In the High Court, the appellant purported to bring its appeal as of right. At the time, s 33(4) of the FCA Act operated such that it could do so if (amongst other conditions) the judgment appealed from was “a final judgment”. At issue on the objection to competency was whether the judgment of the Full Court was aptly so described.

35    Gibbs CJ (with whom Murphy J and Wilson J agreed) held that the injunctive orders that had been granted against the appellant, “…viewed by themselves and apart from the rest of the judgment, were final orders…” (at 767). Nonetheless, his Honour was satisfied that, “[t]he result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not” (at 767). His Honour continued (at 767–8):

The test for determining whether a judgment is final, which has been laid down in a number of cases including Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, 34 ALR 449, is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable. The conclusion that the judgment is not a final judgment is supported by a short passage from the judgment of Dixon CJ in John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd (1938) 60 CLR 1 at 35, where his Honour said:—

“The judgment of the Supreme Court did not determine the action, for the demurrers did not affect pleas to or replications in relation to all counts of the declaration. The judgment was, therefore, interlocutory, and this appeal did not lie without leave.”

36    This Court has applied that reasoning in respect of multi-stage proceedings (most commonly in proceedings in which questions of liability are resolved separately from questions of relief): Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 454 per Lockhart and Gummow JJ, Spender J not deciding; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 457 per Black CJ, von Doussa and Cooper JJ. It has done so in proceedings commenced, as the present matter was, pursuant to enactments regulating industrial relations: Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 at [8] per Lee, Finn and Merkel JJ (CFMEU v Employment Advocate).

37    That practice appears to align with the practice of the New South Wales Court of Appeal. In Triden Properties Ltd v Capita Financial Group Ltd [1993] NSWCA 272, Clarke JA (with whom Meagher and Sheller JJA agreed) observed that “…it is settled law in Australia that a judgment determining issues of liability but leaving open the assessment of damages is not a final judgment”. That, with respect, might have been put with greater confidence than was warranted. Only a year later, a majority of the full court of the Supreme Court of Victoria held to precisely the opposite effect: Camberwell City Council v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 174 per Marks and Gobbo JJ, Fullagar J dissenting. Their Honours were there concerned to apply the reasoning of Dixon CJ in Hall v Busst (1960) 104 CLR 206 at 218 that an order “…intended as a judgment for the plaintiff for damages to be assessed…is final”.

38    In the present matter, it might be recalled that the primary judge resolved the preliminary (liability) question by granting declaratory relief. Relief of that nature is, by necessity, final relief. There is no such thing as an interlocutory declaration: Dovuro Pty Limited v Wilkins [2003] 215 CLR 317 at 359 [127] per Kirby J, 363 [143] per Hayne and Callinan JJ.

39    Nonetheless, the authorities appear to draw a distinction—at least insofar as concerns rights of appeal—between an order that is or is not final and a judgment that is or is not final. Computer Edge is a good example. Gibbs CJ (with whom Murphy J and Wilson J agreed) accepted—and, with respect, it was plainly the case—that the permanent injunctive relief from which the appeal was sought to be brought as of right was final in nature. Nonetheless, the judgment that gave expression to that relief was not.

40    Why such a distinction might be necessary or appropriate may best be left unexplored. As Tracey J alluded to in Damorgold (above, [31]), “judgment” and “order” are, for the purposes of the FCA Act, synonyms: FCA Act, s 4. But that was also so at the time that Computer Edge was decided. Resort to definitions only compounds the scope for confusion.

41    Little can be made of the fact that the declaratory relief the primary judge granted was relief that was final in nature. That it was is obvious enough, as is the fact that it purported to determine, on a final basis, the question as to whether or not Monash Health had contravened s 340(1) of the FW Act. But these matters are not determinative of whether the judgment was interlocutory for the purposes of s 24(1A) of the FCA Act.

42    There is no shortage of authority in this Court and others that holds to this effect. See, for example, J-Corp at [4] per Lockhart and Gummow JJ; CFMEU v Employment Advocate at [7]–[9] per Lee, Finn and Merkel JJ.

43    In Singh v Khan [2021] NSWCA 281; 363 FLR 88 at [27] Brereton JA held that the fact that a declaration might be final in nature was “…not conclusive of the question whether the order is, for the purposes of [establishing appellate jurisdiction], ‘an interlocutory judgment or order’”. That observation is consistent with what the Full Court of the Family Court of Australia (as it then was) said in Jess v Jess [2021] FamCAFC 159; 361 FLR 126 per Alstergren CJ, Strickland and Kent JJ, where it was held (at [10]–[24]) that, as Brereton JA summarised it in Singh, “…leave to appeal was required from a declaratory order which was not a conclusive declaration as to the respective rights and liabilities of the parties but more akin to a finding of fact”.

44    The proposition that a judgment as to liability that is made prior to, and separate from, any consideration of further questions (including as to relief) is “an interlocutory judgment” is “…too well established to be doubted”: Robinson at [6] per Leeming JA (in obiter, with whom Kirk JA agreed; Simpson AJA agreeing in the result). Notwithstanding that it consists principally of final (declaratory) relief, the authorities are tolerably clear: for the purposes of s 24(1A) of the FCA Act, the primary judgment is “an interlocutory judgment” in respect of which no appeal lies without leave.

45    Here, leave to appeal should be granted; and not merely because it was not opposed.  The primary judgment is attended by doubt sufficient to warrant its reconsideration and substantial injustice would be caused to Monash Health unless leave were granted (those being the questions that govern the granting of leave established by authorities such as Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9 per Sheppard, Burchett and Heerey JJ). The substantial injustice arises here because of the likelihood (if not certainty) that Monash Health will be subjected to penalties and other relief following a further hearing directed to those questions, even though no such relief may ultimately be justified.  It also arises because, having regard to s 570 of the FW Act, the additional costs associated with such a hearing are unlikely to be recoverable.

46    Leave to appeal is therefore granted and the draft amended notice of appeal will be treated as the notice of appeal.

The appeal

47    The notice of appeal is prolix. It contains 18 grounds. In written submissions, however, eight of them were abandoned. Ultimately, Monash Health accepted that there were five issues which required determination. Those issues concern, in interrelated ways, whether the primary judge erred in allowing Mr Singh to advance claims which were not contained in his initiating process (Form 2) (the matter did not proceed by way of formal pleadings) and whether the primary judge erred, in various ways, by her approach to the statutory task required of her under the relevant provisions of the FW Act.

48    By a notice of contention Mr Singh contended that the conclusions of the primary judge at J[195] and J[203] should be affirmed on the following grounds: the failure of Monash Health to put before the Court documents relevant to the proceedings prior to being ordered to do so evidencing an apparent lack of frankness in the presentation of its case; the impugned credibility of Dr Johnson; the fact that the Court had the ‘benefit’ of all the additional documents relating to the restructure and what could be inferred from the resistance by Monash Health to their production. In addition, Mr Singh contended that, even if the primary judge erred, in all or some of the respects alleged, the Court’s conclusion that Monash Health had not discharged its burden was inevitable based upon the Court’s other factual findings which had not been challenged on appeal and/or which would not be disturbed on appeal.

The issues on the appeal

49    The parties agreed that the following questions arise for determination:

(1)    Did the primary judge fail to correctly apply s 361 of the FW Act, including by:

(a)    holding that the onus of proof was enlivened in respect of the First Employment Complaint when it was not pleaded with sufficient precision (ground 10); and/or

(b)    failing to separately assess whether Monash Health discharged the onus of proof in respect of each of the alleged reasons (ground 11B as amended)?

(2)    Did the primary judge apply the wrong test for determining the reasons(s) for Mr Singh’s dismissal, including by:

(a)    erroneously holding that Dr Johnson’s state of mind was a relevant consideration in determining Mr Singh’s application, when Mr Singh did not allege that Dr Johnson’s conduct had a material effect upon Monash Health’s decision to dismiss him or that Dr Johnson had acted with a particular intent (applying TechnologyOne Limited v Roohizadegan [2021] FCAFC 137; 309 IR 262 at [216]–[222]) (grounds 14 and 15); and/or

(b)    applying an “objective” test to determine the reasons for Mr Singh's dismissal, substituting her own opinion for Monash Health’s actual reasons (ground 4)?

(3)    Did the primary judge err by inferring that the reason for Mr Singh’s dismissal was his exercise of workplace rights in the face of direct evidence to the contrary, including by:

(a)    equating Dr Johnson’s knowledge of Mr Singh’s complaints with the conclusion that those complaints were a reason for Mr Singh’s dismissal (ground 7);

(b)    not taking into account the whole of the evidence and established facts when answering the “essential question” of whether Monash Health had established that adverse action was not taken for a reason proscribed by the FW Act, or for reasons which included such a reason (ground 3); and/or

(c)    drawing any inferences from the evidence which were not reasonably open, including having regard to the operation of s 140 of the Evidence Act 1995 (Cth) (ground 9)?

(4)    Did the primary judge err by failing to give reasons for the following findings:

(a)    Monash Health did not displace the statutory presumption under s 361 of the FW Act that the adverse action taken against Mr Singh (his dismissal) was for an alleged proscribed reason;

(b)    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”; and/or

(c)    although Monash Health gave Mr Singh the opportunity to apply for the two Grade 2 positions, because it was “understandable” that he did not apply, “he did not break the causal connection”

(ground 2)?

(5)    What orders should be made?

50    For the reasons set out below, Monash Health has made out grounds 10, 11B and 4 to which issues 1(a), 1(b) and 2(b) relate and it is unnecessary to determine the remaining issues.

Issue 1(a) (ground 10) – Was Monash Health’s onus of proof enlivened in respect of the First Employment Complaint?

51    By ground 10, Monash Health pleads that the primary judge erred in finding that the First Employment Complaint was pleaded or alleged with sufficient precision in order for Mr Singh to discharge his onus of proving that complaint such that then Monash Health’s onus under s 361 was not engaged: J[54]–[68].

52    This plea is made out.

53    Sections 360 and 361 of the FW Act inform questions of onus or burden by the parties in a proceeding of this kind and the approach the Act requires to the determination of the reason adverse action is taken.

54    Those two sections provide:

360  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.

361  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, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

55    The first issue in the appeal concerns whether the primary judge failed to correctly apply s 361 by holding that the onus of proof was enlivened (and thus Monash Health was required to discharge it) with respect to the “First Employment Complaint” when the allegation had not been pleaded to the requisite degree of precision.

56    This issue engages both ss 360 and 361 and in particular, to what degree of precision must an applicant (here, Mr Singh) have identified the “action” taken “for a particular reason” for the onus under s 361 to apply.

57    The operation of those sections has been the subject of a number of Full Court decisions, some of which, to varying degrees, are relevant to this appeal: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [13]–[14]; Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306 at [102] per Bromberg J; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [63]–[65]; Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348. Each of these cases was conducted by way of pleadings. This case was not. Nonetheless, one is informed as to the approach to be taken, in part, by what the authorities have imparted generally in the context of pleaded cases. Those authorities elucidate the following relevant principles:

(1)    To assert that “a party is to be held to its pleadings” or that the “scope of the trial is to be determined by the pleadings, and only the pleadings” is misconceived. The course of the proceedings is in the control of the Court in the attainment of a just outcome. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party: Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 at [51], [55]; Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; 290 FCR 239 at [141]–[142] per Bromberg, Kerr and Wheelahan JJ; BHP Coal at [60]–[61].

(2)    But allegations of contravention of the general protections provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it: Celand per Bromberg at [102], citing BHP Coal at [63]–[65]. Some precision is required so that they do not involve a “broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome” (Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]; Celand at [100]) and where the “crucial issue” is the causal relationship between the adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1.

(3)    Despite ambiguity or infelicity in an applicant’s pleading, however, no procedural unfairness may arise where the respondent has meaningfully engaged with the pleading in its defence and the trial proceeded in a way, by reason of the applicant’s opening, the manner in which the hearing was conducted and defended, and it can reasonably be inferred that the respondent understood the applicant’s case against them: BHP Coal at [65]–[77].

(4)    The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of Hall at [15]–[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that “taking that action for that reason or with that intent would constitute a contravention of this Part” (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to “plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent”: Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40].

(5)    The nature of a general protections proceeding does not vary according to whether it is instituted before this Court or in the Federal Circuit and Family Court of Australia (FCFCoA). The fact that the objects of the FCFCoA include operating “as informally as possible” also does not change its nature. The proceeding is one for the recovery of a pecuniary penalty and thus penal in nature, such that where a case proceeds by pleadings, the rules of pleading should be applied: Sabapathy at [41]–[42].

(6)    What is important is not the medium by which the allegations are made but whether the allegations are, in fact, made. Where proceedings in this Court or in the FCFCoA do not proceed by way of pleadings, what comprises the allegations may be identified by reference to any filed application or concise statement but may be supplemented in other ways, such as by making an order for pleadings, or particulars, or by statements of facts, issues and contentions, or by the written opening submissions filed in advance of the hearing so as to expose the issues: Regional Express at [139]–[142].

58    In this case Mr Singh was not required to plead his case. He was entitled to commence by “application” in accordance with the approved form: Federal Circuit Court Rules 2001 (Cth) r 45.06 (FCC Rules); see now Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 30.04.

59    Rule 45.06 of the FCC Rules as at the time of the filing of the application was in the following terms:

45.06    Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, s 539(2), table, item 11)

An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:

(a)    be in accordance with the approved form; and

(b)    be accompanied by:

(i)    a claim in accordance with the approved form; and

(ii)    unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

Note 1:    Sections 545 and 546 of the Fair Work Act state the orders the Court may make.

Note 2:    Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.

Note 3:    An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.

60    Although it was open to Monash Health to do so, it never applied to the FCFCoA for the matter to proceed by way of pleadings.

61    Accordingly, when considering the merits of ground 10 of the notice of appeal, the Court directs its attention to Mr Singh’s allegations as they appeared in his originating application, his opening submissions (both written and oral) and the manner in which the trial was conducted and defended so as to determine whether Monash Health has suffered any procedural unfairness.

62    In Part G of the prescribed form (Form 2) (the claim form), over 50 paragraphs, Mr Singh set out the “grounds for the claim that [he] … was dismissed in contravention of a general protection”.

63    Relevantly, for the purpose of Issue 1(a), Mr Singh claimed that the First Employment Complaint was as described in para 6 of his claim form:

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 [sic] 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.

64    Mr Singh also claimed that he made another 13 complaints and was the subject of various forms of unfavourable treatment which he alleged amounted to “breaches” of the FW Act, at [42] to [50] of the claim form:

Breaches of the Fair Work Act 2009 (Cth)

Adverse action

42.     The Exclusion from the Amended Restructure Proposal Meeting, Presentation of a Non-Genuine Redundancy Without Consultation, First Failure to Offer a Suitable Alternative Position, Alteration of Position, Direction Not to Attend Work, Second Failure to Offer a Suitable Alternative Position are adverse actions within the meaning of section 342(1) of the Fair Work Act 2009 (Cth) insofar as they:

(a)     injured the Applicant in his employment; and

(b)     altered the position of the Applicant to his prejudice.

43.     The Dismissal is adverse action within the meaning of section 342(1) of the Fair Work Act 2009 (Cth).

Workplace rights

44. At all material times the Applicant had the following workplace rights:

(a)     to make a complaint or inquiry in relation to his employment under section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth);

(b)     the right to take paid personal leave when not fit for work due to personal illness under section 97(a) of the Fair Work Act 2009 (Cth); and

(c)     the right to initiate or participate in a proceeding under a workplace law or workplace instrument under section 341(1)(b) of the Fair Work Act 2009 (Cth).

45.     In making the First Employment Complaint, the Second Employment Complaint, Third Employment Complaint, the Fourth Employment Complaint, the Fifth Employment Complaint, The Sixth Employment Complaint, the Seventh Employment Complaint, the Eighth Employment Complaint, the Ninth Employment Complaint, the Tenth Employment Complaint, the Eleventh Employment Complaint, the Twelfth Employment Complaint the Thirteenth Employment Complaint, the Fourteenth Employment Complaint, the Fifteenth Employment Complaint and the Sixteenth Employment Complaint the Applicant exercised the workplace right described in paragraph 44(a).

46.     In taking the First Personal Leave and Second Personal Leave the Applicant exercised the workplace right described in paragraph 44(b).

47.     In initiating the FWC Proceedings Applicant exercised the workplace right described in paragraph 44(c).

48.     The Exclusion for Amended Restructure Proposal Meeting, Presentation of Non-Genuine Redundancy Without Consultation, First Failure to Offer a Suitable Alternative Position and Alteration of Position were by reason of, or for reasons including the First Employment Complaint, the Second Employment Complaint, Third Employment Complaint, the Fourth Employment Complaint, the Fifth Employment Complaint, The Sixth Employment Complaint, the Seventh Employment Complaint the Eighth Employment Complaint and/or the First Personal Leave. Accordingly, the Respondent breached section 340(1)(a)(ii) of the Fair Work Act 2009 (Cth).

49.     The Direction Not to Attend Work, the Second Failure to Offer a Suitable Alternative Position and the Dismissal were by reason of, or for reasons including the First Employment Complaint, the Second Employment Complaint, Third Employment Complaint, the Fourth Employment Complaint, the Fifth Employment Complaint, The Sixth Employment Complaint, the Seventh Employment Complaint, the Eighth Employment Complaint, the Ninth Employment Complaint, the Tenth Employment Complaint, the Eleventh Employment Complaint, the Twelfth Employment Complaint the Thirteenth Employment Complaint, the Fourteenth Employment Complaint, the Fifteenth Employment Complaint, the Sixteenth Employment Complaint, the First Personal Leave and/or the Second Personal Leave. Accordingly, the Respondent breached section 340(1)(a)(ii) of the Fair Work Act 2009 (Cth).

Temporary absence due to illness or injury

50.     Further and alternatively, in breach of section 352 of the Fair Work Act 2009 (Cth), the Respondent dismissed the Applicant for the reason, or for reasons including, his temporary absences from work due to illness.

65    Mr Singh filed an affidavit referring to each of the three emails now said to constitute the First Employment Complaint. They were: the email addressed to Ms Bacic, dated 22 June 2016 (J[56]); the email addressed to Ms Giles, dated 17 August 2016 (J[57]); and the email addressed to Prof Loh, dated 21 March 2017 (J[58]). Each of those emails was annexed to his affidavit. However, Mr Singh did not state or otherwise indicate that these three communications comprised (and solely comprised) his First Employment Complaint. That is a matter of some significance, given that the description of the First Employment Complaint in the claim form included complaints to a broader number of recipients and over a longer period of time.

66    When Mr Singh filed his opening “Outline of Argument”, he did no more than repeat verbatim para 6 of his claim form and made no reference to the relevant parts of his affidavit.

67    In response, Monash Health submitted in its opening outline of submissions at [52]:

The Applicant’s alleged “First Employment Complaint” is far too broad, generalised and vague to constitute a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act. See further, in this regard, Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [102] (Bromberg J, Charlesworth J agreeing (at [167]).

68    At the hearing of the appeal, Mr Singh submitted that whilst his claim form was expressed in “broad terms”, it was sufficient to encapsulate the nature of the complaints, which were then further particularised in detail in his affidavit and documentary evidence (including the three emails and the Summary of Allegations and Findings).

69    It may be accepted, consistent with the authorities referred to above, that in deciding whether Mr Singh identified his claim with sufficient clarity the Court is not limited to a consideration of the contents of the initiating application. We reject the submission to the contrary put by Monash Health that Regional Express stands for this proposition. Rather, what is clear from the Full Court’s reasoning in Regional Express at [140] that it is the message, not the medium, that counts:

[W]hat is important is not the medium in which the allegations are made, but whether the allegations are made in the application. That is because for the purposes of s 361(1)(a), the reference to “an application in relation to a contravention of this Part” is a reference to the proceeding, and not to any particular document filed in the proceeding. In order to engage s 361(1)(a) there must usually be some document in the proceeding by which the applicant makes clear what the case is about, which includes the identification of any particular reason or particular intent that is relied on in order to engage s 361 that relevantly conforms with the guidance given by the Full Court in ABCC v Hall at [13]-[19].

(Emphasis added.)

70    Nevertheless, neither in his initiating application nor through any other medium did Mr Singh articulate that part of his case based on the First Employment Complaint with sufficient precision to alert Monash Health of the case it had to meet.

71    We reject Mr Singh’s submission that his affidavit made the position sufficiently clear. It provides no answer to the call for precision. In his affidavit he referred to, and annexed, several documents created in the period between 16 June 2016 and 18 July 2017, including in addition to what he ultimately relied upon as comprising the three emails comprising the First Employment Complaint:

(a)    an email from Ms Bacic to Mr Singh dated 1 August 2016;

(b)    a “Request for Review of Classification Cover Sheet” which was rejected by email on 23 January 2017 by Ms Giles; and

(c)    an email from Mr Singh to Prof Loh dated 7 April 2017, which was not included in the Appeal Book.

72    There were at least two other documents annexed to his affidavit which may have fallen within the scope of his complaint as described in the claim form. In a case where contraventions may lead to civil penalties, an applicant cannot leave a respondent to speculate about the “workplace right” or “rights” which they contend actuated the adverse action(s). The point in time, the subject matter, author and/or recipients may be critical to the determination of the issue.

73    It was only during Mr Singh’s closing argument, in response to what Mr Singh understood was Monash Health’s objection to the “broad[ness]” of the First Employment Complaint, that Mr Lake identified the three emails said to comprise the First Employment Complaint.

74    As the primary judge acknowledged, at J[61], trying to decipher what constituted the “First Complaint” was not a straightforward exercise. Yet her Honour said at J[66] that it was “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”. She concluded that Mr Singh had identified them “with sufficient precision for Monash Health to know the case that was being put against it”.

75    We cannot agree. Our review of the claim form, the submissions, Mr Singh’s affidavit and the transcript, does not support that conclusion. It is erroneous. Furthermore, the error is an important one as the First Employment Complaint was the only purported exercise of a workplace right that pre-dated the initial restructuring blueprint which proposed the abolition of Mr Singh’s position: J[154]. And it is evidence of a purported exercise of a workplace right which pre-dates Ms Anderson’s employment with Monash Health.

76    For these reasons, the question raised by issue 1(a) should be answered in the affirmative. The primary judge did fail to correctly apply s 361 of the FW Act as alleged. Accordingly, ground 10 of the amended notice of appeal is made out.

Issue 1(b) (ground 11B) – Did the primary judge fail to separately assess whether Monash Health had discharged its onus with respect to each of the alleged proscribed reasons?

77    It will be recalled that Mr Singh alleged that there were three prohibited reasons which actuated the alleged adverse action (the termination of his employment):

(1)    the various complaints he had made;

(2)    the fact that he had commenced proceedings in the Commission; and

(3)    the fact that he had taken personal leave.

78    Monash Health complains that the primary judge erred by failing to consider whether Monash Health had discharged its onus with respect to each of the alleged proscribed reasons, contrary to the statutory task as described in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; 281 FCR 421 at [79]–[120] per Bromberg J, with whom Mortimer J agreed at [206].

79    There was no dispute as to the soundness of the approach described in Cummins. The dispute was as to whether the primary judge had undertaken the task consistent with that approach.

80    As Bromberg J explained at [80], the central statutory provisions (ss 340, 341 and 342) require the Court to determine first, why the adverse action was taken and specifically whether it was taken for a prohibited reason, which the Court referred to as the “actuating circumstance”; and second, whether the alleged reason was a “substantial and operative” reason. The question whether the decision-maker took the adverse action for a prohibited reason is a question of fact to be determined having regard to all the facts and circumstances of the case and any available inferences. If it is alleged in an application that a person took action for a particular reason and taking that action for that reason would constitute such a contravention, then it is presumed that the action was taken for that reason (at [82]). While direct testimony of the decision-maker, if given, will need to be considered and may be a weighty consideration, whether or not the statutory presumption is rebutted will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the adverse action was taken (at [84]), and consistent with the reasoning of the Full Court in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 at [27], [28] per Jessup J, with whom Rangiah J agreed at [117].

81    As part of the statutory task, the trial judge is required to determine whether each of the communications alleged to constitute the “complaints” is a “complaint” within the meaning of s 341 of the FW Act (Cummins at [89]). She or he also needs to be satisfied that each complaint (and, where relevant, the exercise of some other workplace right), which is alleged to actuate the adverse action the subject of the contravention, was a substantial and operative reason for the relevant action (at [92]). Whether the particular presumption had not been rebutted and remained operative must be considered not merely by reference to the testimony of the decision-maker but by reference to all the facts and circumstances relevant to whether the particular alleged reason was a reason which had actuated the particular adverse action in question (at [92]). And where the facts and circumstances are distinct, in order to determine whether the statutory presumption has been rebutted, the primary judge is required to consider each fact “individually and not collectively as though there was only a single statutory presumption” (emphasis added) (at [93]).

82    For the reasons which follow, the primary judge erred by not determining the question of whether the statutory presumption was rebutted, in relation to each proscribed reason.

83    The numerous events said to constitute the reasons occurred over a three-year period, in different contexts and involving different personnel. Mr Singh filed his application in the Commission in March 2018. Mr Singh took various periods of personal leave between June and November 2018, and between March and October 2019. And Mr Singh made a total of 13 complaints over a period of almost three years between June 2016 and April 2019.

84    Notably Ms Anderson, who Monash Health claims was the decision-maker, did not commence employment until January 2018 (J[107]): that is, at least two years after certain of the alleged exercises of workplace rights had occurred. On Monash Health’s case, she was hired, in part, to be a pair of fresh eyes to take steps to “modernise” the library by restructuring it. On Ms Anderson’s evidence, her decision to restructure and the initial identification of Mr Singh’s position as one that might be made redundant was made on 9 March 2018 (less than six weeks after her employment commenced) (the 9 March 2018 proposal: J[108]). Mr Singh’s position was also identified in May 2018 as being one that would go as part of the restructure: J[116]. On the evidence, the only purported exercises of workplace rights before March 2018 were the three communications which comprised the First Employment Complaint: namely, the email addressed to Ms Bacic, dated 22 June 2016 (J[56]); the email addressed to Ms Giles, dated 17 August 2016 (J[57]); and the email addressed to Prof Loh, dated 21 March 2017 (J[58])). The primary judge was required to decide whether each of the “complaints”, upon which Mr Singh relied, actuated the adverse action.

85    Contrary to the submissions advanced on Mr Singh’s behalf, the reasons for judgment do not indicate that her Honour determined the question of whether the statutory presumption had been rebutted in the requisite manner.

86    Whilst the primary judge identified the three alleged proscribed reasons in two parts of her reasons, J[2] and J[47], there was no independent determination, upon analysis of all the evidence, of whether, by reference to each proscribed reason, the statutory presumption was rebutted.

87    By way of illustration, the primary judge loosely suggested that the next iteration of the proposed restructure, in the form of the May 2018 Organisational Change/Continuous Improvement Request, was encompassed within the adverse action in the following way (at J[115]):

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.

88    However, it is not clear how the primary judge understood that the May 2018 Request had a bearing on the ultimate allegation of adverse action, namely the termination of Mr Singh’s employment nearly two years later, on 7 January 2020. Nor is it clear which “proscribed reasons” Mr Singh was relying on, as at May 2018, as motivating one or other of Dr Johnson or “possibly” Ms Anderson. Similarly, at J[149], the primary judge found that Dr Johnson was “well aware of the complaints”, without specificity, and that Dr Johnson “could at least theoretically have been motived by those complaints”.

89    The primary judge does not appear to have considered at all whether the presumption was rebutted with respect to the initiation of proceedings in the Commission or the taking of personal leave on any or all of the occasions. Her Honour made a passing reference to the fact that there was an email exchange between Ms Anderson and Dr Johnson on 11 November 2018 “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” and concludes 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”: J[175] and J[183]. Her Honour undertook no analysis of the evidence of Ms Anderson or of the other evidence of witnesses from Monash Health, including Dr Johnson, although both Ms Anderson and Dr Johnson specifically denied that the decision to dismiss Mr Singh was actuated by these prohibited reasons.

90    All that the primary judge did was to identify what the court must be satisfied of, at J[194], under the heading “Has Monash Health discharged its burden?”, in the following terms:

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.

91    The primary judge then concluded, at J[195]:

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.

92    Her Honour proceeded to find at [201] and [202]:

201.    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.

202.     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 … [a reference to [128] and [148]–[149]]

93    At J[128]–[183] of her reasons, her Honour dealt with Mr Singh’s argument that there were “seven bases” why the Court should not accept Monash Health’s denials that it was motivated to terminate his employment because of his complaints, the Commission proceeding and his taking of leave. In so doing, her Honour fell into error. It is sufficient to explain why by reference to two of those bases.

94    The first basis was that there was no place in the proposed restructure for Mr Singh. Her Honour accepted the argument, concluding that Mr Singh had been “singled out”. Even if he had been singled out, that of itself tells one nothing about whether he was dismissed for a proscribed reason.

95    The second basis was that Mr Singh had made many complaints about Dr Johnson. It appears from her Honour’s reasons that she rejected Dr Johnson’s evidence in material respects. But it does not necessarily follow that Dr Johnson made the decision to terminate Mr Singh or influenced Ms Anderson’s decision for any or all of the prohibited reasons. To reach such a conclusion it was necessary for the primary judge to assess the reliability or credibility of her denials against all the evidence which was capable of bearing upon it. As Bromberg J opined in Cummins at [112] with respect to the reasoning of the primary judge in that case:

The problem with the approach taken by the primary judge is that it does not necessarily follow from the rejection of Ms Beaulieu’s evidence that performance was not the reason for the adverse actions taken, that any one or more of the reasons asserted by Mr Keenan was a reason. The credibility of Ms Beaulieu’s denial in relation to each asserted reason needed to be assessed but not merely by reference to whether her evidence as to the positive reason she gave was to be believed. The credibility of her denial in relation to each asserted reason had to be assessed by reference to all of the facts and circumstances available on the evidence which were probative of whether each particular asserted reason was a substantial and operative reason for the taking of the particular adverse action in question. It is in that respect that the primary judge failed to take into account all of the relevant facts and circumstances that should have been taken into account.

96    In this case, as in Cummins, it was incumbent on the primary judge to evaluate the credibility of her denials against each of the asserted reasons by reference to all of the facts and circumstances available on the evidence which were probative of the question she was addressing. Regrettably her Honour failed to do that.

97    As Monash Health submitted, there is a disjunct between how at J[149] the primary judge found that “in May 2017, … Dr Johnson … could at least theoretically have been motivated by those complaints to engineer a termination of [Mr Singh’s] position with Monash Health” and then at J[202] an actual finding to the effect of rejecting Dr Johnson’s direct evidence is made. The later finding cannot easily be reconciled with her Honour’s earlier tentative observations.

98    For these reasons, ground 11B is made out.

Issue 2(a) (grounds 14 and 15) – Had Mr Singh failed to allege that Dr Johnson had a material effect on the decision to dismiss such that the primary judge could not take into account Dr Johnson’s state of mind?

99    By grounds 14 and 15, Monash Health pleads that the primary judge erred in holding that she could take into account Dr Johnson’s state of mind, where Mr Singh had failed to “allege that Dr Johnson had a material effect upon Monash Health’s decision to dismiss and that Dr Johnson had acted with a particular intent”. Further, Monash Health contends that the Court was thereby “precluded from finding, and should have declined to find, that Dr Johnson had a material effect on the decision to dismiss Mr Singh”.

100    The first articulation of Mr Singh’s claim was as contained in the claim form. There, he claimed that he was subjected to multiple forms of adverse action, which included his dismissal: see [62]–[64] above. Notably, no decision-maker was identified. Further, no allegation was made which expressly linked the restructure and the dismissal.

101    However, in his opening written submissions in the court below, Mr Singh identified his understanding as to the interrelationship between the dismissal and restructure and submitted that Monash Health terminated his employment because of the temporal connection between “the exercise of workplace rights and the adverse action”. He supported the submission by pointing to the following matters:

(a)    the fact that the Applicant was a loyal and dedicated employee of the Respondent, has worked at Monash Health for over 20 years and was subject to the Dismissal without a genuine attempt to redeploy the Applicant into a new role during the re-deployment period;

(b)     the short period of time between the exercise of workplace rights and the adverse action, which evinces a casual [sic] nexus specifically:

i.     the fact that the Applicant initiated FWC proceedings under section 739 of the Fair Work Act 2009 and the Respondent consequently made the first restructuring announcement without any consultation on 9 November 2018 and advised the Applicant that his position was no longer required without offering him a suitable alternative position;

ii.     the fact that Applicant took paid personal leave from 12 November 2018 and 6 October 2019 and was subject to Ms Anderson’s email about the company restructure on 25 November 2018, and the undeniable temporal proximity between taking the First and Second Periods of Paid Personal leave and the Dismissal;

iii.    the fact that the Eight [sic] Employment complaint was made on behalf of the Applicant, and the Respondent made the restructuring announcements on 21 May 2018 and 9 November 2018; and

iv.     the fact that the Applicant’s non-genuine redundancy was communicated to him following the Genuine First through Nineteenth Complaints, the initiation of FWC proceedings under section 739 of the Fair Work Act 2009, and the Legal Representatives’ First to Third Employment Complaints were made on his behalf.

(c)     the fact that no reasonable redeployment was offered to the Applicant, and that the Administrative Officer - Clinical Engineer position that was offered was approximately $26,715 below the Applicant’s salary, notwithstanding the fact that the Applicant request [sic] to fulfil the new cadet position and was qualified and capable to fulfil it;

(d)     the fact that the Grade 2 library clerk position was the only role that was restructured by the Respondent;

(e)     the fact that the Applicant has repeatedly expressed his concerns and highlighted the issues regarding his employment to the Respondent and was repeatedly dismissed;

(f)     the fact that the Applicant simply raised the Genuine First through Seventh Employment Complaints and the Respondent consequently made the first restructuring announcement without any consultation on 21 May 2018 and advised the Applicant that his position was no longer required without offering him a suitable alternative position;

(g)     the fact that the Applicant simply raised the Genuine First through Eleventh Employment Complaints and the Respondent consequently made [sic] amended restructuring announcement without any consultation on 9 November 2018; and advised the Applicant that his position was no longer required without offering him a suitable alternative position;

(h)     the fact that Legal Representatives’ First to Third Employment Complaints were made on the Applicant’s behalf and the Respondent consequently made the amended restructuring announcement without any consultation on 9 November 2018 and advised the Applicant that his position was no longer required without offering him a suitable alternative position;

(i)     the fact that the Applicant accepted the Respondent’s offer to be retrospectively classified a Grade 2 Medical Librarian from 1 January 2013 to 5 November 2018, and continually classified as such from 5 November 2018 onwards after initiating FWC proceedings under section 739 of the Fair Work Act 2009, and the Respondent consequently made the amended restructuring announcement without any consultation on 9 November 2018, and advised the Applicant that his position was no longer required without offering him a suitable alternative position;

(j)     the fact that the Applicant simply raised the Genuine First through Nineteenth Complaints and initiated FWC proceedings under section 739 of the Fair Work Act 2009, and the Respondent consequently advised the Applicant on 3 October 2019 that his position was no longer required without offering him a suitable alternative position;

(k)     the fact that there was no indication to the Applicant that the Respondent was considering the termination of his employment prior to the exercise of his workplace rights.

(Footnotes omitted.)

102    As can be seen from this submission and as Monash Health would have known upon receiving his written opening submissions, Mr Singh did not view the restructure and the fact of dismissal as discrete events, unrelated to each other, save to the extent that he initially claimed in his initiating application that they comprised different forms of adverse action.

103    Contrary to what Monash Health submitted, Mr Singh was not precluded from alleging that the restructure (and the motivations that drove it) were related (including in a causal sense) to his dismissal. It was clear, even on Monash Health’s case, that Mr Singh’s termination was by reason of redundancy. It was precipitated by the restructure.

104    Furthermore, in his oral opening, counsel for Mr Singh made the following submission:

Basically, what we will be putting to the court is that there was essentially – there’s one actionable adverse action that we press, and that is dismissal, but leading to the dismissal was the restructure that was pursued by the respondent, and we say a key reason for the restructure – there may have been other reasons as well – but a key operative reason for the restructure was in response to complaints made by my client.

…

The adverse action that we’re saying is intrinsically linked together is restructure and dismissal, that comes together. So the restructure is the context of how dismissal came about, and in my view, our case hinges on whether – there’s no doubt that the dismissal – a dismissal is adverse action. The key issue for resolution over the next two days is simply whether your Honour is persuaded that one of the reasons for the restructure which eventuated in dismissal was motivated because of the complaints being raised by my client.

105    In response to a question from the Court as to whether he was “clear on the case the applicant is putting”, counsel for Monash Health submitted:

My understanding, your Honour, is that there is only one alleged contravention, which is that there was adverse action in the form of a dismissal, which I accept is a form of adverse action and is adverse action in this case, and that it is said that the various compliance or workplace rights are the, to summarise, unlawful reason for that adverse action in the form of dismissal. So as I understand it, one contravention is being alleged of section 340 of the Fair Work Act. That’s how I understand my friend’s case, and I also would agree with him that the events which transpired in the approximately – well, in the year before, however one wants to define it, are going to be of some relevance to the court, but certainly not to the extent that they would have been had the applicant pursued each instance of alleged, what I might term pre-dismissal adverse action, which I understand are now not pursued.

(Emphasis added.)

106    Moreover, it was apparent from the outset of the hearing that Dr Johnson’s state of mind was clearly at play. On the first day when Mr Singh’s counsel cross-examined Ms Anderson, in response to an objection, he submitted:

Your Honour, I’m squarely putting to this witness 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 by Christina Johnson’s issues with the complaints that have been made about her and others from Harendra. Now, this witness has given evidence about the central role that Ms Johnson played in all of this in terms of directing the restructure and consulting her throughout the restructure.

And it’s glaring, on any review of the documents before the court, the lack of any evidence trail or documentary basis that supports the respondent’s position on this point, so I’m just – I’m just doing my duty to give the respondent an opportunity to respond to that. So this – we’re told this is the decision-maker who was authorised by the CEO to implement the restructure and decide which staff would be terminated. And so I’m putting to her that the reason there isn’t more detail with more documents in her affidavit is because they would not have been helpful to the respondent’s position in all of this.

(Emphasis added.)

107    This submission put Monash Health squarely on notice of the case that was ultimately put against it, namely that Ms Anderson’s actions were infected by Dr Johnson’s attitude to Mr Singh’s complaints.

108    Later on day one, during the cross-examination of Dr Johnson, counsel for Mr Singh put to her (without objection) that her motivation for raising Mr Singh as part of restructure discussions with Ms Anderson was Mr Singh’s complaints about her and that she would have expressed her frustrations with Mr Singh’s complaints to Ms Anderson. And, in the context of the organisation chart of 9 March 2018, the following exchange occurred:

Well, I can put to you, Dr Johnston [sic], that this version of the org chart, as it existed on 9 March, shows Monash Health’s intention at that time, which was to continue a position largely – if not entirely – performing the same role that Harendra was performing, at that time?---I completely disagree. As I said, the Library Cadet role was a completely different role.

Yes. And I put to you that changing the title from here, Librarian, to Library Cadet was done only to exclude Harendra from being able to transition into that role?---I completely disagree. As I’ve said, the Library Cadet role was a substantially different role to the role – the grade 1 role – that Harendra had been in at one point.

And I say that this change, and the way that Harendra’s position was being treated, it was only because of his complaint that he had made, and you wanting Harendra to be out of the library service?---I completely disagree.

109    Later still in the cross-examination, specific questioning of Dr Johnson as to her motivations included:

I will put it to you that you viewed Harendra as a troublesome and difficult employee because of his various complaints since mid-2016?---I disagree.

And I put it to you that Harendra’s treatment in the restructure process was because of those complaints, his absences from work and the Fair Work Commission application?---I completely disagree. All those things are completely valid. People are allowed to do that and that’s – doesn’t interfere in any way with the design of the restructure.

And I put it to you that it’s those things that motivated you in progressing the restructure in a way that impacted upon Harendra?---No, the design of the restructure was solely driven by the need for Monash Health to have a really highly effectively judicial library service.

110    Furthermore, at the intervening interlocutory hearing regarding discovery (referred to at [25] above), which occurred after the first day of the hearing of the substantive application, counsel for Mr Singh explained that he was seeking:

…documents squarely focused around Christina Johnson, who is the key person at the respondent who conceived the need for the restructure in the library service, and did so in circumstances where, for the previous 12 months, she had been aware of multiple complaints that had been made by the applicant and, indeed, was the subject to several of those complaints.

111    As to the alleged material effect Dr Johnson may have had on Ms Anderson, Mr Singh submitted during that interlocutory hearing:

It’s our case, your Honour, that it was – I think the evidence establishes that it was Ms Anderson and Ms Johnson working together to progress the restructure. And it’s certainly the applicant’s case that the way that the restructure was progressed was motivated by Ms Johnson’s response to the applicant’s complaints.

…

So we say that in – all of the documents that have been produced, they all tend to show what is the –has been the applicant’s contention from the start, that the only way of explaining the motivation behind the restructure and the way that he was dealt with as part of that restructure was his exercise of workplace rights to complain and motivated by Ms Johnson and her difficulty with the applicant, and the way that – before Ms Anderson even knew that there was – and Harendra seeing that he even existed, that Ms Johnson was instructing her to restructure and to change the whole basis of the library team, and that explains everything that then followed. So we say for all of those reasons, this discovery request goes to the heart of the one key issue for this trial.

…

And we say that it is extremely probative and relevant to this proceeding the motivation of Dr Johnston in circumstances where she had been the subject of complaints over the previous 18 months by my client as well as his request for reclassification. To where this reorganisation comes from that impacts differently for him than any of the other seven members of the team. And obviously, you know, this is the whole crux – the whole focus of, you know, the proceeding and the claim that we bring. And what we say the relevance of this subsequent email is on 11 November 2018 is simply a demonstration of how Dr Johnston responded in identical circumstances in respect of two other employees. So we want to see and understand the emails that Dr Johnston sent during the period of the applicant’s complaints about her, which is the span of time that - - -

112    In any event, even before the hearing Monash Health well understood that Dr Johnson’s state of mind would be relevant, not only to the events relating to the restructure, but also to the termination. Monash Health filed an affidavit from Dr Johnson, which expressly addressed her state of mind in two respects. There, Dr Johnson deposed:

21.     The restructure was not about Harendra. The fact that Harendra had made complaints in the past, or brought a Fair Work Commission proceeding or took leave or was absent from work was not relevant to the restructure of the library.

22.     It had been obvious for some time that we needed to modernise the library. This included making changes to our team and how it operated. The restructure was not targeted at Harendra. Harendra was encouraged to apply for a role in the new structure.

23.     Harendra was made redundant because he did not secure a role in the new structure (this was because he did not apply for a role in the new structure) and also did not secure a role through the redeployment process.

24.     I have read Part G of the Application dated 9 April 2020. In sub-paragraphs 42 and 43 of Part G Harendra alleges various adverse actions taken against him, and in sub-paragraphs 48 and 49 he says that those adverse actions occurred because he made complaints or took periods of personal leave or made a claim to the Fair Work Commission. I was unaware of many of the complaints referred to in Part G. Furthermore and in any event, I confirm that I did not engage in any of the alleged adverse actions because Harendra took personal leave or because he made complaints, or because he brought a proceeding in the Fair Work Commission. My reasons for my actions in relation to, or which affected, Harendra are as described above.

25.     Harendra’s termination of employment was also not because of his temporary absence due to illness or injury.

113    The consideration of the degree to which Mr Singh was required to “plead” or “allege” the identity of the decision-maker or those who had a material effect on the decision, involves a return of focus to the statutory presumption. To engage the statutory presumption, an applicant must allege that “a person took, or is taking action for a particular reason or with a particular intent”: s 361(1)(a). A “person” includes a body corporate. By operation of s 793, the conduct of a body corporate inheres in the conduct of the human officers, employees or agents through whom it acts.

114    Here again it is important to note that the case did not proceed by pleadings. The claim form identified the body corporate, rather than individuals who made the decision or materially influenced the decision to terminate. Monash Health did not apply to strike out the claim, require pleadings or request further and better particulars (including particulars of the identities of the decision makers).

115    There is a distinction between what a litigant must do in order to invoke the statutory presumption for which s 361 of the FW Act provides (on the one hand) and the circumstances in which a pleading might be vulnerable to attack in the usual ways (on the other). In this case, as is explained above, it was squarely put that Monash Health did things (most significantly, dismissed Mr Singh) for a reason or reasons proscribed by Pt 3-1 of the FW Act: that suffices to invoke the statutory presumption.  The relevant actor — that is to say, the perpetrator of the adverse action — is the corporate entity and its state of mind was very clearly alleged.

116    That is not to say that an allegation in that form might not be open to a pleadings challenge.  A pleading that alleges that a corporate entity did something is (or may be), without more, vulnerable as a conclusory allegation that rests upon other facts not stated (or, perhaps, particularised).  In the ordinary course, the rules of pleading would require that an applicant plead the material facts necessary to establish that a corporation engaged in the relevant conduct and did so with an identified state of mind. Doing so would necessarily involve pleading that conduct was engaged in on its behalf by an employee or agent, acting as such; which, in turn, would necessarily involve the identification of that employee or agent.  That, of course, reflects the reality that corporate entities do not exist beyond legal fiction and, hence, cannot themselves engage in conduct or form states of mind. 

117    None of this matters much for present purposes though, as there was never any challenge mounted to the manner in which Mr Singh prosecuted his case. The allegation that Monash Health dismissed Mr Singh for proscribed reasons was sufficient to invoke the statutory presumption.

118    For these reasons, grounds 14 and 15 are not made out.

Issue 2(b) (ground 4) – Did the primary judge apply the wrong test and substitute her own view or opinion for Monash Health’s actual reasons?

119    By ground 4, Monash Health submits that the primary judge erroneously found that Mr Singh’s dismissal was actuated by prohibited reasons by applying an “objective test” (contrary to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500), undertaking her own assessment of the merit, validity and fairness of Monash Health’s reasons without considering whether in the light of all the evidence, Ms Anderson and Dr Johnson had subjectively acted for the reasons they each proffered for their own (relevant) actions and/or substituting her own view or opinion for Monash Health’s actual reasons.

120    The legal principles were not in dispute. The question of whether an employer took adverse action against an employee for a prohibited reason or reasons which included a prohibited reason is a question of fact, to be answered in the light of all the facts established in the proceedings. Particular focus is given to the direct evidence of the decision-maker. Whilst such evidence may be found to be unreliable because of other contradictory evidence given by the decision-maker or because of other objective facts which are proven to contradict the decision-maker’s evidence, it is erroneous to conduct only an objective inquiry into the decision-maker’s reasons, including into any unconscious reason: Barclay at [44]–[45] per French CJ and Crennan J.

121    Whilst the primary judge referred at J[43] to that portion of the joint judgment of French CJ and Crennan J in Barclay, which set out the correct approach to be taken, it is clear from her reasons that she did not in fact apply this approach.

122    The structure of her Honour’s reasons reveals a lack of precision throughout as to who the relevant decision-maker or decision-makers were and what or which alleged proscribed reason actuated the alleged conduct at each stage of the process culminating in the termination of Mr Singh’s employment.

123    The primary judge commences her inquiry as to the “decision” and the “decision-maker” by noting there was a live dispute as to “what was the relevant decision” and consequently who was the relevant decision-maker: J[73]. Her Honour states at J[74]:

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.

(Emphasis added.)

124    The primary judge concluded that the combined effect of the authorities in Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251, Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 and Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; 308 IR 244 was such that (at J[82]):

[T]he 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.

125    Accordingly, the primary judge did not exclude the possibility that the “motivations for the process” that led to Mr Singh’s dismissal, including the restructure could be taken into account.

126    The primary judge then rejected Monash Health’s argument that Dr Johnson could not be a decision-maker because of an absence of pleading, finding that the argument was artificial given the absence of formal pleadings and that Monash Health had admitted in its response and in its evidence that Dr Johnson “was closely involved in the restructure”: J[83].

127    We accept the soundness of her Honour’s reasoning in this respect, which was dealt with in relation to grounds 14 and 15 above. Immediately thereafter, reference was made to Mr Singh having identified Dr Johnson as either “one of the decision-makers, if not the only decision-maker”, and in closing as “an effective decision-maker”: J[84]–[85].

128    Contrary to Monash Health’s submission, the primary judge was entitled to evaluate the evidence by reference to the documentary trail starting with the 2017 Review, proceeding to Ms Anderson’s 9 March 2018 proposal, then the May 2018 organisation change/continuous improvement request and finally to the November 2018 change impact statement: J[89]–[127]. Additionally, her Honour was entitled to consider, and adopt in part, the “seven bases” proffered by Mr Singh, as to why, cumulatively, the court should find that Monash Health had not discharged its burden of proof: J[128]–[183]. We also accept that it was open for the primary judge to ultimately reject Dr Johnson’s and Ms Anderson’s evidence or to find that it was of limited assistance.

129    However, her Honour’s conclusions as to whether Monash Health had discharged its burden were premised on Monash Health’s purported failure to adequately explain certain matters which arose from the primary judge’s assessment of the evidence applying an erroneous “objective” test as to “whether it was necessary to dismiss” Mr Singh rather than “why Monash Health decided to dismiss” him.

130    By way of illustration, the first of these matters was the adoption of a four librarian model rather than a five librarian model as recommended by the Australian Guidelines for Health Libraries in Australia: at J[196]. This issue was not raised by Mr Singh or anyone else during the hearing. The passages relied upon by Mr Singh (provided after the appeal) do not support the conclusion that this issue specifically arose during the hearing.

131    The second was the absence of an explanation for why Mr Singh, like Ms Zych and Ms Tremelling, other generalist librarians, could not have applied for and automatically transitioned into one of those specialist roles: at J[197], [120]. Again, this appears to be an issue arising from the primary judge’s own deliberations after the hearing and did not directly arise as an issue from which a negative inference could have arisen based on specific cross-examination of Ms Anderson and Dr Johnson.

132    In fact, as Monash Health submits, there was an explanation. Mr Singh was a grade 1 librarian at the time, whereas Ms Zych and Ms Tremelling were grade 2 librarians. This was Ms Anderson’s evidence. It also appears undisputed. There are multiple references in the reasoning to the fact of Mr Singh holding the grade 1 position (J[1], [3](a), [11], [16], [109], [121], [145], [169], [170], [172]) and where the primary judge acknowledged that Mr Singh’s position was not reclassified as a grade 2 position until 1 November 2018: J[16], [19].

133    The third matter her Honour relied on was the absence of explanation as to why it was better to have a library cadet rather than a qualified medical librarian: at J[198]. Yet Ms Anderson had given a detailed explanation for why it was better to have a library cadet which her Honour did not mention.

134    The fourth matter was the absence of explanation as to why, in Ms Anderson’s 9 March 2018 draft, the position occupied by Mr Singh was recorded as “Previously Harendra” and the fifth was why Monash Health chose a restructure proposal which involved redundancies, when the 2017 review had not indicated any were needed: at J[199]–[200]. Monash Health submitted that her Honour’s reasons at J[199]–[200] did not support the conclusion that Monash Health had not discharged its burden and that the reference to “Previously Harendra” in the 9 March 2018 chart did not go anywhere.

135    It was, of course, open to the primary judge to make an assessment as to the reliability of the evidence given by Dr Johnson and Ms Anderson; and, in particular, to do so by reference to surrounding circumstances. Indeed, she was required to do so. However, here, the primary judge gave primacy to her own view or opinion about whether or not Mr Singh’s dismissal was necessary.  That view was formed partly upon consideration of matters that were not explored with those witnesses and that appear to have arisen from her Honour’s own post-hearing deliberations.  Consequently, when considering the significance of those surrounding circumstances, her Honour failed to ensure that proper attention was directed to the evidence (including competing evidence) of each witness.

136    Ultimately, we accept Monash Health’s submission that the primary judge adopted an objective test as to whether Mr Singh’s dismissal was warranted.  Her Honour did so by conducting her own documentary review and without properly assessing the evidence of Monash Health’s witnesses — including, most importantly, what Ms Anderson and Dr Johnson said were (and were not) the reasons for the restructure and the dismissal.

137    For these reasons, issue 2(b) (ground 4) is made out.

Issue 3(a) (ground 7) – Did the primary judge err in finding that Dr Johnson had knowledge of Mr Singh’s complaints? Did the primary judge equate Dr Johnson’s knowledge of those complaints with the conclusion that those complaints were a reason for Mr Singh’s dismissal?

138    There are two aspects to ground 7: first that the primary judge erred in finding that Dr Johnson had knowledge of the complaints made by Mr Singh (J[148]–[149] and second, in the alternative, that the primary judge erred by equating Dr Johnson’s knowledge of the fact that Mr Singh had made complaints with the reason for his dismissal: J[202(a)].

139    It is worthwhile setting out J[202] in full:

202     [F]or 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.

140    Monash Health submits that the primary judge failed to distinguish between Dr Johnson’s desire for a restructure (which her Honour found was actuated by a proscribed reason), the form that the restructure ultimately took and the decision to terminate Mr Singh’s employment (see J[88]). It contends that the primary judge appears to have erroneously adopted a broad causal test instead of focusing on what actuated the decision. Despite the way ground 7 was pleaded, Monash Health did not submit that it was not open to her Honour to find that Dr Johnson knew of the complaints Mr Singh had made about her.

141    Monash Health argues that Dr Johnson’s involvement in the process leading up to Mr Singh’s termination was fundamentally different from the case in Elliot where the two supervisors were broadly performing similar functions in relation to determining redundancies and then forwarding their recommendations to the final decision-maker. It claims that Dr Johnson was only responsible for initiating the exploration of a restructure and expressing her views to Ms Anderson. It was Ms Anderson who ultimately designed the restructure and it was she, not Dr Johnson, who decided to terminate Mr Singh’s employment.

(a) Dr Johnson’s knowledge of the complaints – inconsistency in the evidence

142    Monash Health submits that the finding at J[202(a)] that one of the motivations for the restructure was that “Dr Johnson knew that Mr Singh had complained about her” is inconsistent with the evidence, namely Dr Johnson’s affidavit evidence (not directly challenged) that Mr Singh’s past complaints were not relevant to the library restructure, her oral evidence that his complaints did not motivate her, the absence of a finding that she was not a credible or reliable witness (when Mr Singh had invited one), and the consistency between her affidavit and oral evidence and Ms Anderson’s evidence and the evidence of all of Monash Health’s witnesses, and the lack of documentary evidence contradicting Dr Johnson’s evidence as to her state of mind.

143    Monash Health submits that, having regard to the chronology, the Commission proceeding and the leave Mr Singh took could not have been operative reasons for his dismissal. Mr Singh accepts that they could not have been reasons for the initiation of the restructure but argues “they could have been reasons” for both its “progression” and his dismissal.

144    Monash Health also submits that it was never put to either Dr Johnson or Ms Anderson that Dr Johnson had any involvement in Ms Anderson’s decision to dismiss Mr Singh. It also points out that the dismissal occurred after Mr Singh had chosen in late 2018 not to apply for jobs in the reconstructed library service and failed to obtain alternative employment as part of the 2019 redeployment process when he elected to apply for only one of many jobs on offer. It contends that these events “severed any causal chain between the May 2018 restructure and the adverse action [being] Mr Singh’s dismissal”.

145    Monash Health further submits that the findings at J[188], especially the findings that the prospect of Mr Singh being appointed to a new position was “fanciful” and that the process was a “sham”, were not supported by any evidence and were contrary to the “clear” evidence given by Ms Lowe and others which her Honour appears not to have considered. It contends that these findings were not open to be made having regard to the terms of s 140 of the Evidence Act 1995 (Cth). Alternatively, her Honour gave no or no sufficient reasons for those findings. Notably Mr Singh made no submission to the contrary.

146    In support of their respective positions, the parties each placed emphasis on discrete aspects of the cross-examination and the evidence.

147    We agree with Monash Health that the primary judge was obliged to consider and analyse, in her reasons, the evidence led by Monash Health which led her to conclude that the prospect of Mr Singh’s appointment to a new position was fanciful and the process a sham. The reasons are inadequate in this respect.

148    Those findings were material, given it was Monash Health’s contention that Mr Singh’s decision (not to apply) severed any causal link between Dr Johnson’s state of mind in early 2018 and Mr Singh’s dismissal two years later. Ms Anderson had emailed Mr Singh on multiple occasions throughout November 2018 encouraging him to apply for the position. It was the evidence of Ms Anderson and Dr Johnson that Mr Singh was encouraged to apply for the position and did not do so. Further, consistent with their evidence (and against the finding that the process was a “sham”), there was evidence (from Ms Giles) that the process was changed (to enable Mr Singh to apply) in order to be “transparent and objective” and (from Ms Burns) to ensure that Mr Singh was not excluded.

149    We have considered carefully all the portions of the evidence to which we were taken. But without the benefit of a full transcript or, indeed, the whole of the evidence, we are not in a position to determine this question for ourselves. Whilst it would be open for the Court to request the entire transcript and the evidence, given our conclusions with respect to other aspects of the appeal and that this matter will need to be remitted, it is not in the circumstances, appropriate to take this course.

(b) Equating Dr Johnson’s knowledge of the complaints with the reason for dismissal

150    Monash Health contended that this purported error was evident from the first sub-paragraph of [202(a)] of her Honour’s reasons. We reject this contention. A review of the paragraph reveals that the primary judge did not merely equate Dr Johnson’s knowledge of the complaints with the reason for the dismissal. Rather, Dr Johnson’s knowledge of the complaints was the first of eight bases upon which the primary judge concluded that Dr Johnson engineered a library restructure, in which Mr Singh’s position would be removed, resulting in his dismissal and that she did so because Mr Singh had complained about her. Dr Johnson’s knowledge of the complaints was the first step in the primary judge’s reasoning process. Had Dr Johnson been unaware of a complaint, she could not have decided to terminate his employment because of it.

151    As a consequence, this aspect of the appeal is not made out.

Notice of Contention

152    By ground 1 of the Notice of Contention, Mr Singh contends that the orders of the primary judge were based on a finding that Monash Health did not discharge its burden of proof and that finding could be supported by four other factors, namely:

(a)    Monash Health’s choice as to how it presented its case and its initial failure to include relevant documents in evidence;

(b)    Dr Johnson’s impugned credibility because of the primary judge’s findings and her failure to include relevant and frank evidence in her first affidavit, which is relevant to how her later affidavit attempted to explain produced documents and how her oral evidence can be assessed;

(c)    the lack of documentary material explaining the rationale for the restructure, which supports her Honour’s findings about Dr Johnson’s influence, the targeting of Mr Singh and her motivations; and

(d)    the active resistance by Monash Health to producing documents in its possession relating to Mr Singh’s complaints.

153    By ground 2 of the Notice of Contention, Mr Singh contends that even if the Court made some, or all, of the errors alleged (which is strongly resisted), the Court’s conclusion that Monash Health did not discharge its burden of proof was inevitable based upon the Court’s other factual findings which are not challenged on appeal, and/or alternatively which are not disturbed on appeal, and should be affirmed.

154    We are not persuaded by either contention. Ground 2 was merely an assertion, not developed in written submissions or oral argument.

155    As Jessup J observed in Anglo Coal at [27], the question to be answered at the end of the trial of fact, is whether the respondent has established, according to the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. In the absence of all the evidence adduced at the trial, it is not possible to be satisfied that there is an independent basis for upholding the primary judge’s findings. Further, the primary basis for ground 1 arose from Monash Health’s purported failure to rely on and resistance to producing documents. As noted in the same passage by Jessup J in Anglo Coal:

Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.

156    It follows that Mr Singh’s Notice of Contention is not made out.

Issue 5 – What orders should be made?

157    The appeal must be allowed. The order and declaration made by the primary judge should be set aside.

158    The remaining question is whether the Court is in a position to determine any of the questions in Mr Singh’s case for itself.

159    At hearing, Monash Health urged that this Court determine for itself whether Monash Health had discharged its onus under s 361. Monash Health said that this was the course adopted by Bromberg J in Cummins in which the error was failing to separate out and determine individually each of Mr Singh’s claimed proscribed reasons actuated the dismissal. Counsel submitted that the Court could determine whether Monash Health has discharged its s 361 onus in respect of the dismissal not being actuated by each of the personal leave and Commission claims by them simply being answered by reference to the evidence and the judgment.

160    Monash Health submitted that if a remittal or retrial is ordered, remittal should be to a differently constituted Court and any retrial should be before a different judge. By contrast, Mr Singh contended that if the proceeding is remitted it should be to the primary judge to consider further the issues established on appeal and to correct them according to law and only as a last resort should a new trial be ordered.

161    This Court has the power to determine for itself, according to law, whether Mr Singh was dismissed in breach of s 340 of the FW Act. This Court also has power to remit the matter to the FCFCoA: s 28(1)(c) of the FCA Act. For the following reasons, a remittal is necessary.

162    First, despite this Court having the power to determine this matter for itself, it is not an appellate court’s function to make its own findings of fact: Roohizadegan at [120] citing Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [133] (per Hayne J). In this case, the primary judge made no findings of fact concerning the allegations associated with Mr Singh’s purported exercise of his workplace rights arising from his personal leave and the Commission proceedings. A remittal is necessary where the trial judge failed to evaluate the nature of the complaints and the circumstances in which they were made such that the process of fact finding miscarried: Roohizadegan at [121].

163    Similarly, the primary judge did not make specific findings regarding the testimony of Dr Johnson and Ms Anderson or take into account (and make the associated findings regarding) the surrounding circumstances including by reference to the evidence of Monash Health’s five other witnesses.

164    Second, remittal will be necessary where the Full Court of this Court does not have all the evidence before it and is not in a position to resolve issues of fact when it has not seen and heard the witnesses: see Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139 at [101]; Alam v National Australia Bank Ltd [2021] FCAFC 178; 288 FCR 301 at [122]. The case ultimately turns on the subjective reasons for the making of a decision where the witnesses were called and cross-examined as to their states of mind. It would be impossible for this Court to do this without the benefit of all the evidence and without seeing and hearing the witnesses.

165    Regrettable though it is, the only course available to the Court is to remit the matter for rehearing. Given the tenor of the primary judge’s findings, it is appropriate that the rehearing proceed before another judge.

166    No application was made for costs and, having regard to the limited power to award costs in a proceeding of this kind, no order for costs should be made.

167    It is unfortunate for both parties that a rehearing will be necessary. It is well-known that there are significant pressures on the FCFCoA. There may well be a long delay before the matter can be heard, let alone determined. In these circumstances, we propose to require the parties to attend a mediation conducted by a Registrar of this Court in the hope that, with the benefit of these reasons, the parties may settle their differences and avoid incurring further substantial legal costs.

168    It follows that the orders of the Court should be that:

(1)    Leave to appeal be granted.

(2)    The appeal be allowed in part.

(3)    The declaration and orders of the primary judge made on 1 April 2022 be set aside.

(4)    Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the matter be referred to mediation before a Registrar of the Court at the earliest mutually convenient date.

(5)    The matter be remitted to the FCFCoA for a new trial before a differently-constituted court.

Associate:

Dated:    16 October 2023