Reverse onus of proof and general protections cases

This is an extract from a recent appeal in the Federal Court which contains some important observations about the practical effect of the reverse onus of proof provided for by the Fair Work Act in general protections’ cases.

 

  1. 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?
  2. 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.

  1. 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 CumminsSouth Pacific Pty Ltd v Keenan[2020] FCAFC 204; 281 FCR 421 at [79]–[120] per Bromberg J, with whom Mortimer J agreed at [206].
  2. 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.
  3. 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].
  4. 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 341of 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]).
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

  1. 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”.
  2. 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.
  3. 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.

  1. 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.

  1. Her Honour proceeded to find at [201] and [202]:
  2. 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.
  3. 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]]
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. 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.
  3. 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?

  1. 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”.
  2. 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.
  3. 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:

  1. 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;
  2. 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

  1. 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.)

  1. 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.
  2. 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.
  3. 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.

  1. 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.)

  1. 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.)

  1. 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.
  2. 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.

  1. 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.

  1. 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.

  1. 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 – – –

  1. 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:
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Harendra’s termination of employment was also not because of his temporary absence due to illness or injury.
  7. 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.
  8. 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).
  9. There is a distinction between what a litigant must do in order to invoke the statutory presumption for which s 361of 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.
  10. 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.
  11. 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.
  12. For these reasons, grounds 14 and 15 are not made out.”

 

Monash Health v Singh [2023] FCAFC 166 (16 October 2023) (Katzmann, Snaden and Raper JJ)

 

 

 

This is an extract from a recent appeal in the Federal Court which contains some important observations about the practical effect of the reverse onus of proof provided for by the Fair Work Act in general protections’ cases.

 

“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?

  1. 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.

  1. 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 CumminsSouth Pacific Pty Ltd v Keenan[2020] FCAFC 204; 281 FCR 421 at [79]–[120] per Bromberg J, with whom Mortimer J agreed at [206].
  2. 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.
  3. 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].
  4. 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 341of 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]).
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

  1. 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”.
  2. 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.
  3. 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.

  1. 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.

  1. Her Honour proceeded to find at [201] and [202]:
  2. 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.
  3. 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]]
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. 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.
  3. 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?

  1. 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”.
  2. 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.
  3. 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:

  1. 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;
  2. 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

  1. 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.)

  1. 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.
  2. 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.
  3. 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.

  1. 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.)

  1. 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.)

  1. 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.
  2. 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.

  1. 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.

  1. 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.

  1. 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 – – –

  1. 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:
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Harendra’s termination of employment was also not because of his temporary absence due to illness or injury.
  7. 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.
  8. 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).
  9. There is a distinction between what a litigant must do in order to invoke the statutory presumption for which s 361of 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.
  10. 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.
  11. 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.
  12. For these reasons, grounds 14 and 15 are not made out.”

 

Monash Health v Singh [2023] FCAFC 166 delivered 16 October 2023 per Katzmann, Snaden and Raper JJ