Unlawful termination of employment; the jurisdiction issues

The Fair Work Act prohibits, amongst other things, an employer taking adverse action (which includes but is not limited to) dismissing an employee because of the fairly well known legally protected personal attributes in Australia such as race, age, sex, sexual orientation and so forth. The full list can be found in sec 351 of the Act. This prohibition is a part of the employment general protections.

http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s351.html

General protections cases are initiated in the Fair Work Commission, very much like an unfair dismissal case. They are however attended by considerably more tricky processes.

The Fair Work Act also make provision for a class of case named “unlawful termination” (which relies for its constitutional legitimacy as law not by the Australian Constitution but by Australia’s external affairs powers and its participation as a result in various international employment treaties and similar; see sec 771). These rights and obligations apply to a much wider class of employers than constitutional corporations and classes of entities ceded to the Commonwealth by the States politically.

Sec 772 prohibits the termination of an employee’s employment under these powers upon almost identical prohibited grounds as the general protections, which of course apply to a conventional group of employers such as constitutional, trading corporations and federal agencies.

Sec 773 of the Act permits a person claiming to have been dismissed in contravention of secs 771 and 772 to apply to the Fair Work Commission to deal with the dispute which is processed by the Commission much the same as a general protections including conciliation powers and the issue of a certificate permitting the matter to be taken to a federal court if unresolved (see sec 778).

In an interesting case determined by a Full Bench of the Fair Work Commission yesterday, the Commission dealt at first instance with an unlawful termination dispute in which, and I quote selectively in the interests of brevity anf from extracts from the decision

“The Appellant was dismissed by the Respondent following a dispute over a requirement, mandated by the Respondent, that the Appellant wear a face mask in the workplace. The Respondent contended that its mandate was required by a public health order issued by South Australian authorities to manage the risk of COVID-19 transmissions, and its assessment of risk. The reason for dismissal asserted by the Respondent was that the Appellant was no longer able to perform an inherent requirement of her job.

The Appellant claimed that she had legitimate and verified medical reasons for refusing to wear a face mask (claustrophobia) and the Respondent unreasonably failed to accept those reasons or to make reasonable accommodations in relation to them. The Appellant alleged that she was dismissed for the following reasons, proscribed by s.772 of the FW Act:

  • The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities (s.772(1)(e)); and
  • Physical or mental disability (s.772(1)(f)).

Before the Deputy President, and in the appeal, the Respondent objected to the application, on the ground that it was contrary to s.723 of the FW Act, which prohibits a person from making an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application. The Respondent contended that all of the conduct alleged by the Appellant was proscribed by the general protections provisions in Part 3 – 1 of the FW Act.

The Appellant maintained before the Deputy President and the appeal, that she was not entitled to make a general protections court application because the grounds upon which she alleged unlawfulness are not wholly covered by the categories of proscribed conduct in Part 3 – 1 of the FW Act. In the proceedings before the Deputy President the Appellant also contended that she was not entitled to make a general protections court application because a certificate had not been issued by the Commission under s.368(3) of the FW Act. This matter was not pressed in the appeal.

In the Decision, the Deputy President upheld the Respondent’s objection and found that the Appellant was entitled to make a general court application with respect to all the conduct alleged in her unlawful termination application and for that reason, the Appellant was “statute-barred” by s.723 of the FW Act, from making an unlawful termination application.

The appeal was listed for hearing on permission to appeal and the merits of the appeal. At the request of the parties and based on our view that the appeal could be adequately determined on the papers without the need for oral submissions at a formal hearing, the appeal was conducted on the basis of written submissions only pursuant to s.607(1) of the FW Act.”

The contention of the appellant employee on appeal was that she was entitled to pursue an unlawful termination of employer against her employer which was a national system employer because having had her employment terminated

This is how the Full Bench dealt with the issues.

[84] It is convenient to deal first with the Appellant’s contention in relation to s.351(2)(b) which provides that the prohibition in s.351(1) against adverse action for various discriminatory reasons, does not apply to action taken because of the inherent requirements of the particular position concerned. In relation to the allegation that the Appellant’s employment was terminated because of mental or physical disability, the Appellant asserts that she is not entitled to make a general protections application in relation to such conduct because of the effect of s.351(2)(b) of the FW Act. The effect of the Appellant’s contention is that because the Respondent relied on the Appellant being unable to perform the inherent requirements of her position as a reason for dismissal, s.351(2)(b) of the FW Act operates so that the Appellant is not entitled to make a general protections application in respect of the alleged conduct. In the hearing at first instance, the Appellant advanced this argument on the basis that “the conduct the employer says occurred has been ‘extinguished’ by not falling within the exclusions in s. 351(2)(a) or (b) of the FW Act”. 19

[85] The Appellant’s argument in relation to s.351(2)(b) is misconceived for the following reasons. Firstly, s.351(2)(b) has no effect on the entitlement of a person to make a general protections application. Rather, that section operates as a defence to such an application where an employer asserts that action (including dismissal) was taken by the employer because of the inherent requirements of the particular position concerned. As the Deputy President correctly observed in the decision, to construe s. 723 in the manner contended for by the Appellant, would require a full merit hearing to establish whether a dismissal was, or was not, because of the inherent requirements of a position, to determine whether a person was entitled to make an application under Part 3 – 1 of the FW Act. 20

[86] Secondly, as the Respondent correctly submits, the Appellant contends that she was able to perform the inherent requirements of her role. It follows that the Appellant was entitled to make an application under Part 3 – 1 of the FW Act contending that she was dismissed in contravention of the general protection in s. 351(1) for the reason of her mental or physical disability, or for reasons which included that reason. That the Respondent contends in response, that it dismissed the Appellant because of the inherent requirements of her position, does not of itself, result in the Respondent not discriminating against the Appellant so that s.351(2)(a) operates to exclude what would otherwise be adverse action for discriminatory reason. The exclusion in s.351(2)(a) operates where discriminatory conduct is not unlawful under an anti-discrimination law in force in the place where the conduct occurs, because the relevant law does not cover the conduct, rather than when the law in the relevant place provides a defence or exception, if the party alleged to have discriminated establishes the factual basis for the defence in a hearing on merit.

[87] We also agree with the Respondent that there is an inherent contradiction in the Appellant’s submission on this point. On the one hand, the Appellant’s contention that s.351(2)(b) prevents her from making a general protections court application, relies on the Appellant being found to be unable to perform the inherent requirements of her position. On the other hand, the Appellant contended at first instance that she could perform the inherent requirements of her position, to make good her claim for unlawful termination for the reason in s.772(1)(f) of the FW Act. Effectively, the Appellant is approbating and reprobating with respect to her submission on this ground.

[88] Thirdly, the same issues as those raised by the Appellant in relation to s.351(2)(b) arise with respect to her unlawful termination application. In this regard, s.772(2)(a) provides that s.772(1) does not prevent a matter in paragraph (1)(f) (upon which the Appellant relies) from being a reason for terminating a person’s employment, if the reason is based on the inherent requirements of the particular position concerned. In short, the Respondent can raise the same defence against a dismissal said to have been carried out for the reason of physical or mental disability, in response to either an unlawful termination application or a general protections application. This indicates, consistent with our construction of s.723 that those provisions cover the same ground as the unlawful termination provisions in relation to when a termination is for a prohibited reason.

[89] In the submissions relating to appeal ground 2, the Appellant does not directly address s.351(2)(a) and the basis upon which the Appellant asserts that her dismissal was not unlawful under the EO Act, which is the discrimination law in force in South Australia. However, in support of this contention, the Appellant cited what was asserted to be a decision of a Full Bench of the Commission in McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation. At the outset we note that this is not a decision of a Full Bench, but rather is a decision of a single member of the Commission. We also note that the facts in that case bear no resemblance to those in the present case. The applicant in McIntyre, through his representative, incorrectly made an application under s. 365 of the FW Act, asserting that he was dismissed because of his political opinion. As was the case in Krcho, an allegation that adverse action (dismissal) was taken because of political opinion, is not one that can be brought in a general protections court application, when the alleged conduct occurs in New South Wales, where discrimination on the ground of political opinion is not unlawful under State anti-discrimination law. The decision in McIntyre predates the Full Bench decision Krcho but is consistent with it.

[90] The Appellant does not assert that termination of her employment because of physical or mental incapacity is not unlawful under the EO Act so that s.351(2)(a) applies. As we understand the Appellant’s submission in relation to s.351(2)(a), it is based on the contention that the EO Act provides a defence for an employer if a dismissal for physical or mental incapacity is because of the inherent requirements of a particular position. Alternatively, as we understand the Appellant’s submission, s.79A of the EO Act potentially operates so that the Respondent’s conduct in terminating the Appellant’s employment, was exempted from breaching that Act because it was a reasonable response to an infectious disease.

[91] For reasons we have articulated in relation to s.351(2)(b) with respect to the inherent requirements of a position, that the EO Act provides defences for an employer to an allegation that an employee was dismissed in breach of that Act, by excluding a discriminatory act in certain circumstances, does not exclude such conduct for the purposes of s.351(2)(a).

[92] In relation to ground 1 of the appeal, we agree that this matter was not raised before the Deputy President and that the Appellant should not be permitted to argue a case on appeal that was not raised at first instance. However, to the extent that this ground crosses into the territory covered by ground 2, for the reasons we have set out above in relation to s.351(2)(a), the argument is misconceived and misunderstands the operation of that provision. For these reasons we reject grounds 1 and 2 of the appeal. Ground 4 restates ground 2 in another form and for the same reasons we reject it. The Deputy President did not find that the Respondent’s conduct was proscribed by s.351 of the FW Act. The Deputy President found that the Appellant’s allegation that she was dismissed for reasons of her mental or physical incapacity, engaged s. 351 of the FW Act and that the Appellant was entitled to make a general protections court application in respect of that conduct.

[93] Ground 3 of the appeal asserts that the Deputy President erred in finding that the Appellant’s unlawful termination application was statute barred in accordance with s.723 of the FW Act. It is not in dispute, and we are satisfied, that to the extent that the Appellant alleged that her employment was terminated unlawfully because of filing a complaint, the conduct she complains of engages the general protections in Part 3 – 1 of the FW Act. Indeed, based on the alleged facts set out in the Form F9 and the material filed by the Appellant in the first instance proceedings, it is arguable that she is not entitled to make an unlawful termination application in respect of a dismissal for the reason in s.772(1)(e). This is because it does not appear that the Appellant “filed” a complaint with an outside authority such as a court, tribunal or other relevant body, as is required by s.772(1)(e) of the FW Act. 21

[94] If the Appellant did not file a complaint with an external body, the Appellant’s allegation that her dismissal was for this reason, would not would not be caught by s.772(1)(e) and would have been more appropriately the subject of an application under Part 3 – 1 of the FW Act, specifically s.341(1)(c)(ii), which does not require that an inquiry or complaint about employment, is made to an external body. For reasons we articulate in relation to appeal ground 2, the Appellant’s discrimination claim also engages s.351(2) and is not excluded or extinguished by s.351(2)(a) or (b). The Deputy President’s conclusion that all conduct alleged by the Appellant engaged the provisions in Part 3 – 1 of the FW Act and that as a result, she was entitled to make a general protections court application. Accordingly, his conclusion that this application was barred by s.723 was correct. We dismiss appeal ground 3.

Disposition and Order

[95] For the reasons given permission to appeal is granted.

[96] The appeal is refused.

[97] We order as follows:

  1. Permission to appeal is granted.
  2. The appeal is dismissed.”

Jacobs v Adelaide Theosophical Society Inc. (New Dimensions Bookshop)  [2022] FWCFB 79 delivered  25 May 2022 per Catanzariti VP, Asbury DP, Lake DP and Bell DP