General protections; how to discover the reason for the action

There are several instances in the Fair Work Act of conduct being unlawful (or, technically, a contravention of the Act) if undertaken for a prohibited reason.

Thus it is contravention of the general protections for a person or corporation to take adverse action against another person because of a prohibited reason, for example because of the exercise by that person of a workplace right. Another example is that it is unlawful to discriminate against a person because of a protected attribute, for example age or sex and so forth.

Accordingly it is often necessary for a court to make a decision about the true reason for an act. In the following extract from a recent decision of the Federal Circuit Court there is an interesting analysis of the court’s job when an action or actions can be plausibly attributed to an innocent reason or a prohibited reason.

“Counsel for the applicant submits the following:

“…the applicant sitting near the front of the sales meeting on 11 December 2017 with her child may be characterised as exercising parental responsibility, or may be characterised as potential disturbance to the meeting and its videocast.  If the request to move to the back of the room was motivated by the latter rather than the former, then there is no discrimination.  As Perram J said at [132] in Rumble:

The fact that the [applicant’s] conduct is capable of multiple characterisations merely then gives rise to a factual question about which of them was it that actuated [the decision-makers] thinking. (Rumble v the partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409).”

The test in my view solely focuses upon the reasons for the action against the applicant.  It is only a decision which is directly infected as a matter of subjective motivation by a prohibited reason which will make the respondent liable for breach of general protections.

I am satisfied on the evidence that the respondent’s request of the applicant to move to the rear of the room was motivated by her desire to ensure that the meeting was not potentially disturbed rather than her desire to discriminate against the applicant because she was carrying out parental responsibility.”

GRAVENER v MIJA PTY LTD & ORS [2020] FCCA 46 delivered 13 January 2020 per Middleton J