Adverse action employer granted leave to appeal

Adverse action employer granted leave to appeal

Adverse action employer granted leave to appeal

A Full Bench of the Federal Court has granted leave to appeal to an employer against an earlier court finding that it engaged in adverse action against an employee.

The case involves Monash Health, the largest health provider in Victoria, and an employee ‘Mr S’ whose employment came to an end in January 2020 after his position was made redundant following a restructuring of their library services.

Mr S claimed that the redundancy was not genuine but a device deployed by his employer to get rid of a troublesome employee who had made various complaints of ill-treatment during his employment.

Mr S was employed by Monash Health in various roles between 1996 and 7 January 2020. His principal allegation was that both the restructure and his redundancy were ‘shams’ in that they were contrived to effect the termination of his employment because he made 13 complaints concerning his employment, including to external bodies, as well as having taken extensive periods of personal leave.

The primary judge found that his employer had engaged in adverse action against him on three grounds, including the complaints he had made, because he filed a proceeding in the Fair Work Commission, and because he had taken personal leave.

However, Monash Health sought leave to appeal that decision, which was heard before a Full Bench comprising Justices Anna Katzmann, John Snaden, and Elizabeth Raper.

The judges decided that there were multiple grounds warranting the granting of an appeal.

The first was because Mr S did not provide enough detail for Monash Health to be certain what rights he was alleging they impeded. As they noted,

“We reject Mr (S’s) submission that his affidavit made the position sufficiently clear. It provides no answer to the call for precision … an applicant cannot leave a respondent to speculate about the ‘workplace rights’ or ‘right’ which they contend actuated the adverse actions(s)”.

The second ground was finding that the primary judge erred by reviewing the employers’ actions collectively. As they noted in adverse action claims, the primary judge is required to consider each fact “individually and not collectively as though there was only a single statutory presumption”.

For example, they highlighted that the decision-maker who approved the restructure of Mr S’s area had only been employed for six weeks at that point and, consequently, was not involved in any earlier decisions or actions against him which he contested.

The third ground was the primary judge’s acceptance of Mr S’s submission that the dismissal was partly linked to a series of complaints about a particular senior manager. As they noted,

“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 (S) or influenced Ms Anderson’s decision for any or all of the prohibited reasons”.

The Full Bench also found that the primary judge erred by making conclusions about the necessity for the restructure and the selection of redundancy for Mr S, not upon the evidence provided. In effect, as they noted,

“the primary judge gave primacy to her own view or opinion about whether Mr (S’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, the Full Bench granted the employer’s appeal and remitted the case for a new trial.

Monash Health v S [2023] FCAFC 166 (16 October 2023)

For queries about adverse action, redundancy, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 393.1123

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