Monash Health v Singh [2023] FCAFC 166

FEDERAL COURT OF AUSTRALIA Monash Health v Singh [2023] FCAFC 166 Appeal from: Singh v Monash Health [2022] FedCFamC2G 229

File number: VID 227 of 2022

Judgment of: KATZMANN, SNADEN AND RAPER JJ

Date of judgment: 16 October 2023

Catchwords: INDUSTRIAL LAW – adverse action – appeal – where the respondent made a number of complaints and/or inquiries about his employment, commenced proceedings in the Fair Work Commission and took personal leave – where the respondent was found to have been dismissed from his employment in contravention of s 340(1) of Fair Work Act 2009 (Cth) – whether the primary judge erred in finding that the appellant bore the onus of proof in respect of a complaint that was not particularised until closing submissions – whether the primary judge erred in failing to separately assess whether the appellant had discharged its onus in respect of each of the alleged proscribed reasons – whether the primary judge erred in finding that the appellant had failed to rebut the statutory presumption in s 361 of the Act when the respondent had failed in his initiating process to identify the actual decision-maker(s) or allege that a particular person was the decision-maker or had had a material effect on the decision to dismiss – whether the primary judge erred in applying the wrong test to the determination of the appellant's reason(s) for the dismissal – whether, despite error, the decision of the primary judge should not be disturbed – whether, in the event of error, the matter should be remitted PRACTICE AND PROCEDURE – whether leave to appeal is required where the primary judge determined liability only and not relief

Legislation: Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 570, 793 Federal Court of Australia Act 1976 (Cth) ss 4, 24, 28, 33, 53 Federal Circuit Court Rules 2001 (Cth) r 45.06 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 30.04