| [2022] FWCFB 79 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sue Jacobs
v
Adelaide Theosophical Society Inc. (New Dimensions Bookshop)
(C2021/8553)
VICE PRESIDENT CATANZARITI |
SYDNEY, 25 MAY 2022 |
Appeal against decision [2021] FWC 6412 and order PR736041 of Deputy President Anderson at Adelaide on 24 November 2021 in matter number C2021/6716
[1] Ms Susan Jacobs (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the FW Act), for which permission is required, against a decision 1 and order2 of Deputy President Anderson, issued on 24 November 2021 dismissing the Appellant’s application under s.773 of the FW Act, for the Commission to deal with an unlawful termination dispute.
[2] The background as set out in the Decision is that the Respondent – the Adelaide Theosophical Society Inc. (New Dimensions Bookshop) – is a not-for-profit association, operating a bookshop in Adelaide, South Australia. It was not disputed that the Respondent was, at the relevant time, a national system employer and the Appellant was a national system employee, for the purposes of Part 3 – 1 (general protections) of the FW Act.
[3] 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.
[4] 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)).
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] The Deputy President commenced his consideration by identifying the issue for determination as whether the Appellant was, upon being dismissed, “entitled to make a general protections court application” in relation to the unlawful conduct she alleges. The Deputy President observed that “if so, she is statute-barred by s.723…because the application which she has made is an ‘unlawful termination application’ for the purposes of s.723.” The Deputy President also observed that consistent with the decision of a Full Bench of the Commission in Krcho v University of New South Wales,3 the term “conduct” in s.723 is not “adverse action simpliciter” (in this case, dismissal) but adverse action as proscribed by Part 3-1, and that in relation to the Appellant’s application, the adverse action is dismissal because of one or more of the proscribed reasons (or reasons that include the proscribed reasons).
[10] The Deputy President then identified two grounds upon which the Appellant based her argument that she was not entitled to make a general protections court application. Firstly, the Appellant contended that a general protections court application can only be made once the Commission issues a certificate under s.368(3), and this had not happened at the time the Appellant made her claim, or at all (the certificate issue).
[11] The Deputy President rejected the Appellant’s submission that she was not entitled to make a general protections court application because a certificate under s.368(3) of the FW Act had not been issued. The Deputy President noted that this issue had been considered by the Full Bench in Krcho, without a conclusion being reached, and went on to find that:
“[40] Firstly, such a construction has the effect of rendering the statutory bar in section 723 largely nugatory. A dismissed national system employee (even one dismissed only for a proscribed reason under Part 3-1) who has not commenced proceedings under Part 3-1 could, if that that were so, never be statute-barred from making an unlawful termination application because, at the time of applying, the Commission’s jurisdiction under Part 3-1 had not been invoked and the Commission necessarily had no power to issue a certificate.
[41] It is a well-established principle of construction that words used by the legislature are to be interpreted in a manner that gives meaning and effect, in the statutory context. Ms Jacobs’s construction has the effect of giving section 723 no work to do in such a scenario. That scenario is not a marginal or unforeseeable circumstance. The mandatory nature of section 723 (“a person must not”) underscores the importance of affording section 723 meaningful effect within the statutory scheme.
[42] Secondly, whilst section 370 means that issuing a certificate under section 368(3) is a condition precedent to making a general protections court application, a condition precedent does not necessarily equate to a person being “entitled” to apply. Section 370 provides that “a person who is entitled to apply under section 365” is unable (“must not”) to make a court application unless a certificate has been issued. The entitlement referred to in section 370 is expressed as an entitlement “to apply under section 365”. It is not expressed as an entitlement to make a court application. Thus, in advance of the condition precedent arising, the person must already be entitled to invoke the cause of action, as evident by the use of the present tense in the phrase in section 370 “who is entitled”. Whilst construing these provisions of the Act is not without difficulty (as apparent from the full bench discussion in Krcho), section 370 makes issuing a certificate a condition precedent to making a court application but not does not relevantly determine whether a person is “entitled” to invoke the cause of action.
[43] This being so, the phrase “entitled to” in section 723 is best construed in the same manner. The construction I adopt is one in which a person is “entitled” in the sense that the conduct they allege, if proven, would establish a cause (or causes) of action under Part 3-1 (for example, under section 365 or section 372). In contrast, procedural conditions precedent to the making of court applications (such as a certificate being issued) arise once a person is entitled to invoke the jurisdiction and a conference has been conducted by the Commission.” 4
[12] Although the certificate issue was not pressed directly in the appeal, the Deputy President’s findings in this regard are relevant to the other issues in dispute. Secondly, the Appellant contended that the grounds on which she alleges unlawfulness, are not grounds on which a general protections court application under Part 3-1 could have been made, because they have been “extinguished” by not falling within the operation of s.351(2)(a) or (b). Those provisions are to the effect that an employer does not discriminate if action is not unlawful under any anti-discrimination law in force where the action is taken, or where action is taken because of the inherent requirements of the particular position concerned (the exclusion issue).
[13] The Deputy President found this submission to be misconceived, on the basis that the construction contended for by the Appellant would require a merit hearing of an unlawful termination application to determine whether reliance by an employer on s.351(2)(a) or (b) is in fact made out. The Deputy President also found that a statutory provision that establishes a bar to a category of claims, cannot reasonably be construed as requiring a merit hearing of a claim in that category, to determine whether the statutory bar is made out. The Deputy President further found that “conduct” for the purposes of s.723 of the FW Act, bears no relationship to whether an employer’s conduct falls within s.351(2)(a) or (b).
[14] The Deputy President determined that discrimination on the ground of physical or mental disability was included in the proscribed forms of discrimination under s.351 of the Act, and that the unlawful conduct alleged by the Appellant involved the same subject matter. The Deputy President also determined that as the conduct alleged occurred in South Australia, it was conduct unlawful under the Equal Opportunity Act 1984 (SA) (EO Act) and the exclusion in s.351(2)(a) of the FW Act did not apply. On that basis, the Deputy President found that the discriminatory conduct alleged by the Appellant gave rise to a cause of action under Part 3-1 of the Act as it was conduct falling within the meaning of s.351.
[15] The Deputy President in considering the alleged unlawful conduct with respect to making a complaint or recourse to an administrative body, identified that notwithstanding the fact that the application did not appear to particularise the alleged complaint, the conduct proscribed by s.772(1)(e) had direct overlap with s.341(1) of the Act. The Deputy President found that dismissal on the ground of making a complaint under a workplace law to an administrative body was unlawful under Part 3-1 as under s.772(1)(e). Further, The Deputy President noted that the application did not identify whether these reasons were being advanced cumulatively or in the alternative.
[16] In conclusion, the Deputy President found that because the Appellant was entitled to apply under Part 3-1 with respect to all the alleged unlawful conduct, then irrespective of whether the conduct was considered individually or cumulatively, the Appellant was a person “entitled to make a general protections court application in relation to that conduct”. Having made this finding the Deputy President dismissed the application on the basis that it was statute barred by s.723 of the FW Act.
[17] The Appellant’s notice of appeal contains four grounds of appeal as follows:
1. The Deputy President erred in application of the Equal Opportunity Act 1984 (SA) towards the Appellant’s circumstances;
2. The Deputy President erred in finding the Respondent’s conduct did not fall under an exception permitted by s.351(2)(a) or s.351(2)(b) of the Fair Work Act 2009;
3. The Deputy President erred in finding the Appellant’s application for unlawful termination was statute barred in accordance with s.723 of the Fair Work Act 2009; and
4. The Deputy President erred in finding the Respondent’s conduct was proscribed pursuant to s.351 of the Fair Work Act 2009.
[18] The Appellant expanded on its grounds of appeal in a document filed with the Appeal Book entitled “STATEMENT OF REASONS FOR THE DECISION BEING APPEALED”, as follows:
“2.1 The learned Deputy President erred in finding the Appellant’s application for unlawful termination was statute barred in accordance with s723 of the Fair Work Act 2009 (Cth) (FW Act) because the Appellant ought to have been able to apply for an unlawful termination application pursuant to,
2.1.1 s772(e) of the FW Act being a complaint against an employer involved in an alleged violation of laws or regulations or in the alternative,
2.1.2 s772(f) of the FW Act the employer engaged discrimination in acting unlawfully given consideration of COVID-19 regulations to wearing face masks.
2.2 The learned Deputy President erred in failing to consider the Respondent’s submission that Ms Jacobs was terminated due to an ‘inability to perform the inherent requirements of the job’ the operation of s351(2)(b) of the FW Act is enlivened. If a merits review was to be considered, the Appellant was denied procedural fairness being the Appellant was not heard on a merits review.
2.3 The learned Deputy President erred in finding the Appellant was statute barred as it should have been general protections application because it involved an act of discrimination. This was in error because,
2.3.1 The Appellant’s circumstances enliven s 79A of the Equal Opportunity Act 1984 (SA) (‘EOA’) providing that an employer can discriminate against infectious disease, thereby the conduct was not proscribed when applying pursuant to s351(2)(a) of the FW Act.
2.3.2 COVID-19 is an infectious disease.
2.4 The learned Deputy President erred in the application of the EOA finding the conduct complained of was proscribed by operation of s351(1) of the FW Act.”
[19] In relation to permission to appeal being granted, the Appellant submitted the public interest was enlivened given the COVID-19 pandemic is a matter of strong public interest, and the Appellant’s matter pertained to wearing a facial mask and whether the Respondent was entitled to ignore the COVID Directions relating to an exemption from wearing a mask. Further, the Appellant submitted the matter was in the public interest in relation to whether the Respondent’s action against the Appellant was a measured, reasonable, and considered approach.
[20] In relation to the grounds of appeal, the Appellant first referred to s.79A of the EO Act, which provides as follows:
“This Part does not render unlawful a discriminatory act if the act –
Is directed towards ensuring that an infectious disease is not spread; and
Is reasonable in all the circumstances.”
[21] The Appellant submitted that COVID-19 is an infectious disease within the definition of s.79A of the EO Act. If a merits test was required to consider if s.79A was enlivened, this was not considered given the Appellant’s circumstances. If the Respondent’s conduct was found to be reasonable, then s.79A would apply thereby barring the Appellant from making a general protections application as s.351(2)(a) of the Act would be enlivened. In this regard, the Appellant argued that there is an anomaly between the operation of State and Commonwealth Acts relating to discrimination but also the application of the FW Act and whether or not an employee is statute barred from bringing a general protections claim.
[22] The Appellant also submitted the conduct complained of relates to the Respondent’s interpretation of the COVID-19 Directions and whether it acted reasonably, rather than termination of the Appellant’s employment. The Respondent’s conduct directly related to s.79A of the EO Act and was directed towards ensuring that an infectious disease (COVID-19) was not spread to customers of the Respondent and to the alleged vulnerable persons with whom the Respondent shares a premises. This conduct resulted in the Appellant’s employment being terminated, rather than being a primary reason for the termination. The Appellant also submitted that there were no instances of community transmission at the time within the purview of the Respondent’s premises nor within the greater Adelaide Community.
[23] On that basis, s.79A of the EO Act may potentially enliven s.351(2)(a) of the FW Act, so that the Respondent was not unlawfully discriminated against, it follows that the Appellant may not fall within the provision of s.351(1) of the FW Act as found by the Deputy President and cannot make a general protections application.
[24] The Appellant pointed to a similar provision in s.6 of the Disability Discrimination Act 1992 (Cth) (DD Act) in relation to indirect discrimination and submitted that the difference between the State and Commonwealth legislation is the latter expressly reiterates that an employer is responsible for discharging the burden as to why discrimination is reasonable given the circumstances. The Appellant submitted that this was never explored with the Appellant and resulted in error on the part of the Deputy President.
[25] It was also submitted that the issue of whether the Appellant could perform the inherent requirements of her role was never explored by the Deputy President. If a merits review was required, then the Appellant should have been afforded this opportunity to consider whether any of the two provisions in s.351(2)(a) or s.351(2)(b) were enlivened. Further, the Appellant submitted an error of law was made by the Deputy President due to his failure to consider these provisions.
[26] At 4.4 of her submissions, the Appellant referred to the decision in McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation and stated that in that case “the Full Bench of the Fair Work Commission considered the following submissions”:
“The Appellant submitted that the Commission should give close attention to the term “conduct” as it appeared in s. 723 of the Act. It was submitted that the conduct that the Appellant complained of had specifically been “carved out” by subsection 351(2)(a) of the Act and thus the Appellant was deprived of capacity or entitlement to make a general protections court application in respect of that particular conduct. Therefore, according to the submissions made on behalf of the Appellant, the Appellant could make an unlawful termination application in relation to the conduct of SBS that he alleged to be wrong, because he was not entitled to make a general protections court application in relation to that conduct.” 5 (emphasis added by the Appellant)
[27] Secondly, the Appellant submitted that the Respondent should have accepted what the Appellant asserts was a valid medical exemption to wearing a face mask rather than seeking an independent verification of that exemption and that the Respondent should have implemented alternative measures (such as a Perspex screen). These matters were said to be a breach of the Workplace Health and Safety Act and Regulations.
[28] Thirdly, the Appellant submitted that where an employer relies on an employee’s incapacity to perform the inherent requirements of a position or role and asserts that this results in frustration of the contract of employment, it is the substantive position or role that must be considered and not some modified, restricted duties or temporary alternative position and the Respondent had not considered such alternatives. 6
[29] Fourthly, it was submitted that in the event the Respondent attempts to discharge its duty to the Appellant by claiming enforcement of South Australian Government requirements, the Appellant was still entitled to be treated fairly. 7 Fifthly, the Appellant pointed to the reversal of the onus of proof in unlawful termination applications submitting that: “…in the instance of an unlawful termination the onus is reversed on to the Employer. The Employee is not required to defend the allegation of unlawful termination, the Respondent is required to discharge the burden of proof.”
[30] In relation to statutory provisions, the Appellant submitted that there is conflict between whether an employer is entitled to discriminate against a person with a disability under the EO Act and whether an employee is entitled to follow COVID-19 Directions and posited a question as to whether an employer can discriminate against an employee if they are entitled to not wear a mask because they suffer from a relevant medical condition.
[31] It was further submitted that the Appellant’s unlawful termination application should have succeeded because the Appellant was not suggesting the Respondent discriminated against her directly, but that the Respondent engaged in indirect discrimination. On that basis the Appellant submitted the conduct complained of was not within the scope of the COVID-19 Directions therefore the Respondent acted unlawfully.
[32] The Respondent pointed to differences between the Appellant’s submissions and the grounds of appeal set out in the Form F7 Notice of appeal filed by the Appellant. In relation to ground 1 of the appeal which contends that the Deputy President did not consider whether s.79A of the EO Act applied to the conduct complained of by the Appellant, the Respondent submitted that this contention was never raised or advanced by either party at first instance and there is no reference at all to s.79A in the Appellant’s submissions filed in relation to the matter at first instance or identified in the original unlawful termination application.
[33] In this regard, the Respondent submitted that a seminal principle of appellate jurisdictions is that a point cannot be raised for the first time on appeal, and that this principle has consistently been applied in appeals in the Commission. The only exception to this approach is where there is an assertion that the Commission has acted beyond its jurisdiction. The Respondent submitted that there is no suggestion that the powers exercised by the Deputy President were beyond jurisdiction, and what was being asserted was that the Deputy President arrived at an incorrect conclusion in the exercise of his powers – an error within jurisdiction.
[34] The Respondent also submitted that for the following reasons, this ground of appeal could not be made out even if it were permitted. The essence of the Appellant’s case, run before the Deputy President, and in this appeal, is that the Respondent imposed face mask requirements in circumstances where it was unnecessary and breached WHS laws and where reasonable alternatives should have been pursued, but were not. The Appellant was therefore arguing on one hand, that the Respondent acted unreasonably in all the circumstances, and on the other hand, asserting that s.79A of the EO Act exempts the Respondent from liability in this matter, thereby preventing the filing of a general protections claim against the Respondent. This argument was advanced by the Appellant notwithstanding that to avail itself of the defence in s.79A of the EO Act, the Respondent must have acted reasonably.
[35] The Respondent further submitted that the Appellant should not be able to depart from the case as continually pleaded, which is that the measures imposed by the Respondent were not necessary, reasonable or proportionate to the risks posed by COVID-19 at the relevant time. In any event, whether s.79A of the EO Act is applicable to the present proceedings is not a matter that would or could ordinarily be determined at a preliminary stage, without evidence and submissions forensically targeted to such evidence. It is the very kind of issue that would require a substantive hearing on merit.
[36] With respect to Grounds 2 and 3, the Respondent submitted these errors appear to be based on allegations that the Deputy President:
(a) failed to address s.79A of the EO Act; and/or
(b) failed to identify that the action taken by the Respondent was taken because of the inherent requirements of the Appellant’s position.
[37] The Respondent contended there was an inconsistency in the Appellant’s submissions, in relation to what the Appellant asserts the Deputy President should have found with respect to the inherent requirements of the Appellant’s position being able to be performed. The thrust of the Appellant’s case before the Deputy President was that she could perform the inherent requirements of the role at all relevant times. If the Appellant was actually of the view that the decision to terminate her employment was validly taken because of her inability to perform the inherent requirements of her role, this would not only prevent a general protections application from being filed (pursuant to s.351(2)(b) of the FW Act) but would also prevent her unlawful termination application from succeeding, on account of s.772(2) of the FW Act.
[38] Having been legally represented at all relevant times, filing a s.772 application, and expressly pleading that she could perform the requirements of her role, the Appellant should not be permitted to simultaneously argue that the reason she was dismissed was because of the inherent requirements of her role being unable to be met. Further, as the Deputy President identified at paragraphs [47] – [48] of the decision, whether the Appellant could perform the requirements of her role is not a matter that would or could ordinarily be determined at a preliminary stage, without evidence and submissions and this is the very kind of issue that would require a substantive hearing on merit.
[39] Section 723 of the FW Act should not be construed as requiring the Deputy President to form a concluded view on contested issues of merit, at the stage at which an unlawful termination application is assessed, to determine whether it may proceed to be dealt with by the Commission. Rather, it was entirely open to the Deputy President to consider the case on its face and as pleaded by the Appellant (namely, that the Appellant could perform the inherent requirements of her role and that the Respondent’s conduct was unreasonable) and determine it on that basis.
[40] In relation to appeal ground 4, the Respondent submitted the Deputy President correctly found that the conduct alleged by the Appellant, being that the Respondent dismissed the Appellant because she filed a complaint against her employer and because of her physical or mental disability, were both plainly proscribed by s.351 of the FW Act.
[41] While it did not understand the submissions being advanced by the Appellant in relation to ground 4, to the extent that it was being or may have been asserted that the Appellant was unable to bring a “general protections court application” within the meaning of s.723 of the FW Act because she had not filed a general protections application (and accordingly not been issued with a certificate under s. 368 of the FW Act), the Respondent submitted that the Deputy President’s rejection of this argument was sound.
[42] The Deputy President’s conclusion was the only sound approach because the focus of s.723 is not on whether a person has complied with certain procedural pre-requisites such as the obtaining of certificates to bring court proceedings, but rather on conduct of the Respondent and whether that conduct enlivens a general protections claim. The Respondent also submitted that the statutory context of s.723 supported the conclusion drawn by the Deputy President for the following reasons:
1. Section 723 appears in Division 2 of Part 6-1 of the FW Act, titled “Certain actions not permitted if alternative action can be taken”. This Part is concerned with prohibiting claims being made where “other remedies” are available”.
2. This is to be distinguished from Division 3 of Part 6-1 of the FW Act, which is titled “Preventing Multiple Actions”. This latter Division is not focused on preventing a particular claim where other remedies are available, but rather is focused on ensuring that “multiple applications or complaints in relation to the same conduct” do not arise. The issuing of a certificate under s.368 would be relevant to the provisions of Division 3 as it would influence whether multiple applications can be brought in relation to the same conduct.
3. However, the concern of Division 2 and s.723 is broader. It is focused on prohibiting all claims where an alternative remedy could have been pursued.
4. So much is made clear by the Explanatory Memorandum which states that clause 723 prevents a person making an unlawful termination application if they are able to make an application under the general protections provisions in Part 3 – 1 in relation to the same termination of employment.
5. It is clear from the Explanatory Memorandum that no unlawful termination application should be available where the application arises from the “same grounds” as can be pursued under Part 3-1 of the FW Act. That is the very case that arises presently.
6. Accordingly, the fact that a certificate has not been issued under s.368(3)(a) should not be found to automatically enliven the right to bring an unlawful termination application.”
[43] The Respondent also contended that the three broad submissions advanced by the Appellant under the headings “Exceptions under the Act”, “The Respondent” and “Statutory Provisions” have tenuous, if any, connection to the grounds of the appeal. These submissions should have little if any weight placed on them, on the basis that: they repeat arguments advanced before the Deputy President without reference to any error of law; rely upon contentions not put before the Deputy President at first instance; and/or argue the merits of the Appellant’s substantive position on the unlawful termination application which falls beyond the scope of the decision and this appeal. In all the circumstances the Commission should refuse the appeal and permission to appeal.
Principles on appeal
[44] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 8 There is no right to appeal. An appeal may only be made with the permission of the Commission.
[45] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 9 The public interest is not satisfied simply by the identification of error,10 or a preference for a different result.11 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest as follows:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 12
[46] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 13 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Permission to appeal
[47] We are satisfied that this appeal raises an issue of general importance and/or general application beyond the direct interest of the parties. The decision of the Full Bench in Krcho v University of New South Wales 14 (Krcho) concerned a case where it was not in dispute that one of the reasons alleged for the unlawful termination of employment did not engage the general protections provisions in Part 3 – 1 of the FW Act and other reasons did engage those provisions.
[48] In the present appeal, there is a dispute as to whether all the reasons for the conduct alleged by the Appellant engage the general protections in Part 3 – 1 of the Act. In contending that the discrimination reasons are excluded from the general protections provisions, by s.351(2)(a) and (b) of the FW Act, the Appellant raises questions about the effect of those provisions, which have not been the subject of previous Full Bench authority. Further, the appeal raises questions about the proper construction of s.723 of the FW Act which were considered in Krcho, but not determined.
[49] For these reasons, we are satisfied that the public interest is attracted and we therefore grant permission to appeal. Before considering the appeal grounds, it is necessary to consider some related issues including the nature of the conduct alleged by the Appellant which is the subject of her unlawful termination application and the proper construction of s.723.
Conduct alleged to be unlawful reasons for termination of the Appellant’s employment
[50] The Form F9 Application for the Commission to deal with an unlawful termination dispute, requires that an applicant nominate from a list of options: “which unlawful reason(s) set out in the FW Act was/were the basis for the employer terminating your employment? A list of unlawful reasons aligning with the provisions in s.772 of the FW Act, is listed on the Form F9 and an applicant is requested to tick a box to indicate which reason(s) is/are relied upon as a basis for the application.
[51] In the present case, the Form F9 Application completed by the Appellant alleges that the unlawful reasons for the Respondent’s conduct (the termination of her employment) were that the Appellant filed a complaint against the Respondent involving alleged violation of laws or regulations or recourse to competent administrative authority (the complaint ground) and discrimination on the grounds of physical or mental disability (the discrimination ground).
[52] The Form F9 asked the Appellant to provide the reasons, if any, that the Respondent gave for terminating her employment. In response, the Appellant set out several alleged factual matters, which can be summarised as follows. On 28 July 2021, mask wearing was mandated for indoor workplaces in South Australia. The Appellant stated that she provided medical certificates to the Respondent exempting her from wearing a face mask or shield on the basis that she suffered from a medical condition, namely claustrophobia. The Appellant raised questions with the Respondent about exemptions from the relevant Directions issued by the South Australian Government in relation the wearing of face masks and that requested that Respondent erect a Perspex screen as an alternative to requiring the Appellant to wear a mask. Further, the Appellant stated that the reason given by the Respondent for terminating her employment, was that if she continued to rely on the exemption, she would be unable to perform the inherent requirements of her position and her employment would cease by frustration of contract, effective Monday 13 September 2021.
[53] If the Appellant was not prohibited from making an unlawful termination application, the reasons asserted in the Form F9 align with s.772(e) (filing a complaint) in relation to the complaint ground and s.772(f) (physical or mental disability) in relation to the discrimination ground. We note however (as did the Deputy President at first instance) that on the facts pleaded in the Form F9 and set out in the Appellant’s submissions in the appeal, there is no evidence that the Appellant filed a complaint with an external authority. If this is the case, it is difficult to understand how the Appellant could advance the complaint ground under s.772(e).
[54] Alternatively, if the Appellant is not prohibited from making a general protections application in relation to these matters, the reasons for the conduct alleged in the complaint ground would be caught by s. 340(1)(ii) on the basis that the Appellant exercised a workplace right by making a complaint or inquiry to her employer in relation to employment as provided in s.341(1)(c)(ii) and the reasons for the conduct alleged in the discrimination ground, by s.351.
The Full Bench decision in Krcho
[55] Both parties in the appeal referred to the decision of a Full Bench of the Commission in Krcho. The facts in that case were that the applicant alleged that his employment was terminated for nine reasons proscribed by s.772 of the FW Act and made an unlawful termination application under that section. Eight of those reasons were also proscribed by various general protections provisions in Part 3 – 1 of the FW Act. It was not in dispute that one of the proscribed reasons the applicant asserted as a reason for his dismissal – political opinion – is not unlawful under the Anti-discrimination Act 1977 (NSW), the place where the alleged action occurred. It was not in dispute that s.351(2)(b) of the FW Act applied with respect to that action so that the dismissal of the applicant was not discrimination for the purposes of s.351 and therefore not caught by the general protections in Part 3 – 1.
[56] The respondent in Krcho objected to the application asserting that because all the proscribed reasons bar one, were caught by the general protections provisions in Part 3 – 1, s.723 operated as a bar to the applicant’s unlawful termination application. In the first instance decision subject of the appeal in Krcho the appellant’s unlawful termination application was dismissed, when he refused an opportunity to amend that application by removing the political opinion reason so that the other reasons for termination of his employment engaged the general protection provisions in Part 3 – 1.
[57] In upholding an appeal against the decision at first instance, the Full Bench in Krcho determined that “conduct” for the purposes of s.723 is termination of employment for one or more proscribed reasons or for reasons including that reason or reasons. 15 The Full Bench also held that s.723 is concerned with conduct for reasons that can be the subject of both an unlawful termination application and a general protections court application, and where that is so, it prohibits the former application.16 The result in Krcho was that because the unlawful termination application alleged termination for both a reason which did not engage the general protections in Part 3 – 1 of the FW Act, and a reason or reasons which did engage those provisions, and the applicant maintained that the termination of his employment was for all the alleged reasons, then s.723 of the FW Act was not a barrier to the applicant making an unlawful termination application.17
[58] In reaching that conclusion, the Full Bench considered the meaning of the phrase “if the person is entitled to make a general protections court application” in s.723 and the interaction of that provision with other provisions of the FW Act in relation to general protections disputes involving dismissal. The Full Bench first noted that s.368(4) defines a general protections court application as an application to a court under Division 2 of Part 4 – 1, for orders in relation to a contravention of Part 3 – 1. The Full Bench also noted that s.539 of the FW Act sets out in tabular form, standing, jurisdiction and maximum penalties with respect to civil penalty provisions. The table indicates that a person affected by a contravention of a civil penalty provision in Part 3 – 1 has standing to apply for orders for breach of those provisions.
[59] The Full Bench observed on one construction of s.723, the reference to a person entitled to make a general protections court application, is to a person who has standing under Division 2 of Part 4 – 1 to apply for orders in relation to contraventions of the penalty provisions in Part 3 – 1. In support of this construction of s.723, the Full Bench in Krcho noted that s.719 of the FW Act, which contains a guide to Part 6 – 1 (in which s.723 is found) suggests a broader application of the provision and further, set out the explanation of the operation of the breadth of the prohibition in s.723 in the Explanatory Memorandum to the Fair Work Bill in support of this construction.
[60] An alternative construction of s.723 was also identified based on s.370 of the FW Act which provides that a person must not make a general protections court application in relation to a dispute, unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute. With respect to the argument that a person who has not obtained a certificate is not entitled to make a general protections court application, the Full Bench in Krcho said:
[33] On this construction since the appellant (and putting to one side the political opinion reason) did not have a certificate and has not sought injunctive relief, he was prohibited from making a general protections court application by s 370 of the Act. He was therefore not ‘entitled to make a general protections court application’ and so the prohibition in s 723 is not enlivened. Indeed, a person who was entitled to apply under s 365 but elected not to apply, could apply under s 773 in relation to the same conduct, and would not be barred from doing so by s 723 because of the operation of s 370. We can well imagine that this is not the result the drafters intended.
[35] Lest it be said that we have overlooked the effect of s 366 of the Act on the entitlement of a person to apply under s 365, the position we have described above under s 370 would pertain until the 21 day period within which an application may be made passed, unless of course the reference in s 370 to an entitlement to apply under s 365 is intended to be read without regard to the effect of s 366 on that entitlement. After the period had passed there would be no entitlement to apply under s 365, only a right to request the Commission to allow a further period within which such an application may be made. On this view, beyond the 21 day period, a person who has standing under s 539(2) would not be barred by s 370 from making a general protections court application because that person is not a person who is entitled to apply under s 365. Section 723 would in that case prohibit an unlawful termination application in relation to the conduct. Again, we do not image this is the result the drafters intended.
[61] The Full Bench in Krcho went on to observe that there is an obvious tension between the operation of s.370 of the FW Act and the stated breadth of operation of s.723 as found in the Explanatory Memorandum, arising from the use in s.723 of the term “general protections court application” instead of the broader phrase “general protections application”. The Full Bench in Krcho decided that it was not necessary to resolve the tension, because the unlawful termination application brought by the Appellant was not prohibited by s.723, as the alleged conduct was for reasons which included a reason that did not engage s.365 of the FW Act in any event, so that the application was not entitled to make a general protections court application in respect of all such conduct.
The proper construction of s.723
[62] The necessity for us to reach a conclusion about the proper construction of s.723 of the FW Act is contingent on acceptance of the Appellant’s submissions in relation to whether she is entitled to make a general protections court application. The Appellant does not appear to dispute that the conduct alleged in the complaint ground engages the general protections provisions in Part 3 – 1 of the FW Act. The Appellant’s case is that s.351(2)(a) of the FW Act extinguishes her right to make a general protections court application in relation to the conduct she alleges in the discrimination ground because that section operates so that the conduct is not prohibited by s.351(1) where it is not unlawful under discrimination law in South Australia. As we understand the Appellant’s submission, the conduct is not discrimination under s.79A of OE Act because it is a response to an infectious disease. The Appellant also contends that because the Respondent’s reasons for terminating her employment included that the Appellant could not fulfil the inherent requirements of her position, she is excluded by s.351(2)(b) from making a general protections court application. If we accept these submissions, the result would be that s.723 would not prevent the Appellant from making an unlawful termination application, because one of the grounds upon which that application is based could not be the subject of a general protections application.
[63] Alternatively, if we reject the Appellant’s contention in relation to s.351(2)(a) and (b) of the FW Act, then both the discrimination ground and the complaint ground involve conduct for reasons that if proven, would engage the general protections provisions in Part 3 – 1 of the FW Act. If these issues were the only issues in dispute, and we rejected the Appellant’s contentions in relation to the discrimination ground, we could dismiss the appeal on the basis that the Appellant was entitled to make a general protections court application in respect of the termination of her employment for all reasons she alleges and that s.723 is a bar to her unlawful termination application.
[64] However, because the Appellant did not make an application under s.365 for the Commission to deal with a dismissal dispute the Appellant has not obtained a certificate under s.368(3) and by virtue of s.370, must not make a general protections court application. The Appellant pressed this argument at first instance and it was rejected by the Deputy President. There is no ground of appeal relating directly to this aspect of the Deputy President’s decision and it is unclear whether the Appellant presses this issue in her submissions in the appeal. The Respondent in the appeal made submissions on this point, in the event that the Appellant’s submissions were construed as pressing it. For completeness, we intend to consider this issue as part of our decision in relation to the proper construction of s.723.
[65] The approach to the construction of a statutory provisions was explained by a Full Bench of the Commission in Advantaged Health Care Pty Ltd v Health Services Union 18 as follows (citations omitted):
[22] Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the FW Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history.
[23] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose.
[66] Consistent with this approach, we turn now to the text of s.723, which is in the following terms:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[67] As the Full Bench in Krcho found, the conduct at which s.723 is directed is dismissal for a reason proscribed by s.772 and the various provisions in Part 3 -1, rather than dismissal (or other forms of adverse action) simpliciter. Further, the prohibition in s.723 prevents a person from making an unlawful termination application which alleges particular “conduct” if the person is “entitled” to make a general protections court application in relation to the same conduct.
[68] The immediate context in which s.723 operates is Division 2 of Part 6 – 1 of the FW Act. The Guide to Part 6 – 1 is found in s.719, which indicates that the Part provides rules relating to applications for remedies under the Act and that Division 2 of Part 6 – 1 (in which s.772 is found) prevents certain applications, where other remedies are available.
[69] Consistent with the Guide in s.719, Division 2 of Part 6 – 1 is headed “Certain actions not permitted if alternative action can be taken”. Section 721 concerns equal remuneration applications and s.722 deals with notification and consultation requirements. Both sections prevent the Commission from dealing with applications for, or granting orders, where alternative remedies exist, and those remedies provide for certain matters.
[70] In the context of Division 2 of Part 6 – 1 of the FW Act, s.723 is clearly directed to ensuring that a person cannot make an unlawful termination application where the person can take alternative action in relation to the same conduct, namely where the person is entitled to make a general protections court application.
[71] Section 772, which sets out grounds upon which employment is not to be terminated, is found in Part 6 – 4, which deals with additional provisions relating to termination of employment. The Guide to that Part in s.769 makes clear that it contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment. Those international agreements are listed in s.771. In summary, s.772 is supported by the external affairs power of the Commonwealth under the Australian Constitution, while the general protections provisions in Part 3 – 1 are primarily supported by the corporations power. Section 772 is in the following terms:
“772 Employment not to be terminated on certain grounds
(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
(c) non-membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during maternity leave or other parental leave;
(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person's employment if:
(a) the reason is based on the inherent requirements of the particular position concerned; or
(b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--the employment is terminated:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) To avoid doubt, if:
(a) an employer terminates an employee's employment; and
(b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and
(c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee's absence, or proposed or probable absence, during maternity leave or other parental leave;
the employee's employment is taken, for the purposes of paragraph (1)(g), to have been terminated for the reason, or for reasons including the reason, of absence from work during maternity leave or other parental leave.
(4) For the purposes of subsection (1), subsection 109(2) (which deals with the meaning of voluntary emergency management activity) has effect as if the word employee had its ordinary meaning.”
[72] While s.772 reflects the general protections in Part 3 – 1, the immediate context of s.772 indicates that an unlawful termination application is not the primary action provided for in the FW Act for a person alleging dismissal for one or more of the reasons set out in that section. Rather, s.772 enables an employee who is not entitled to take action under Part 3 – 1 in respect of a dismissal, to make an unlawful termination application. Reasons for an employee not being entitled to take action under Part 3 – 1 may include that the relevant employer is not a national system employer or the discriminatory reason alleged by the employee for the dismissal, is not unlawful because of ss.351(2)(a) or (b).
[73] The purpose of s.723 is confirmed by the Explanatory Memorandum to the Fair Work Bill which provides the following explanation of the section:
“Clause 723 - Unlawful termination applications
2702. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982) [1994] ATS 4.”
[74] It is evident from its text and context as a provision in Part 6 – 1 of the FW Act, that s.723 does not operate so that a person who is entitled to pursue a general protections court application in respect of all reasons for conduct alleged to contravene s.772, can elect in respect of that conduct, to make an unlawful termination application. The purpose of s.723 is to prevent a person from making such an election and to direct persons alleging conduct of the kind described in s.772, to the general protections provisions in Part 3 – 1 of the FW Act where they are entitled to make a general protections court application.
[75] Consistent with this purpose, the phrase “if the person is entitled to make a general protections court application” should be given a broad meaning. As previously noted, this term is defined in s.368(4) as an application to a court under Division 2 of Part 4 – 1 for orders in relation to a contravention of Part 3 – 1. While this definition appears narrow, to understand the context in which it operates, it is necessary to set out s.368 in full:
“368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”
[76] The definition of a general protections court application directs attention to Division 2 of Part 4 – 1, which deals with civil remedies and with applications for orders in relation to contraventions of civil remedy provisions. Section s.539 of the FW Act, which is found in Division 2 of Part 4 – 1, provides that for each civil remedy provision the persons referred to in the table, may, subject to provisions not presently relevant, apply to the courts listed in the table for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in the table. The table in s.539 relevantly provides that a person entitled to make a general protections court application in relation to a civil remedy provision include “a person affected by the contravention”.
[77] While the civil remedy provisions are listed in the table in s.539, the content and substance of those provisions is found in Part 3 – 1 which contains descriptions of adverse action and the proscribed reasons for such action. Each of the sections defining the conduct including the proscribed reasons in respect of which adverse action must not be taken, indicates that the provision is a civil penalty provision for the purposes of Part 4 – 1. Accordingly, the provisions in Part 3 – 1 are necessary for the operation of Part 4 – 1 and there could be no general protections court application without the requirements in Part 3 – 1 being met.
[78] To invoke the general protections provisions, a person who alleges adverse action, including dismissal, for the reasons proscribed by Part 3 – 1, “may” make an application to the Commission to deal with a dispute. An application in respect of a contravention involving dismissal may be made under s.365 and an application in respect of a contravention not involving dismissal may be made under s.372. Notwithstanding the use of the term “may”, a person alleging adverse action (involving dismissal) for a proscribed reason, in contravention of the civil penalty provisions in Part 3 – 1, cannot make a general protections court application without first making an application to the Commission under s.365: s.370.
[79] A failure to comply with the requirement to make an application to the Commission under the relevant provision in Part 3 – 1 does not result in a person not being entitled to make a general protections court application. Rather, the failure to make an application to the Commission to deal with a dispute involving a contravention of Part 3 – 1 means that the person is not able to make a general protections court application in respect of that contravention until the procedural requirements have been complied with. In relation to procedural requirements for making a general protections court application, s.370 provides:
“370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[80] We agree with the Deputy President’s view that the requirement to obtain a certificate from the Commission as provided in ss.368(3) and 370, before making a general protections court application, does not determine whether a person is entitled to make such an application. Further, the question of whether an application to either a court or the Commission is made within the required time frame does not determine the entitlement to make the application. An indicator of this is the power given to both the Commission and a relevant court respectively, to extend the time for making general protections application involving dismissal and a general protections court application. The requirements in s.370 are conditions that a person affected by a contravention of a civil penalty provision must meet, before making a general protections court application.
[81] We also agree with the Deputy President’s conclusion that the proper construction of s.723 is that a person is entitled to make a general protections court application in the sense that the conduct the person alleges, if proven, would establish a cause or causes of action under Part 3 – 1. Put another way, a person affected by a contravention of a civil remedy provision in Part 3 – 1 is entitled to make a general protections court application. A person who makes such an application must comply with procedural pre-requisites and cannot rely on failure to do so, as a basis for overcoming the bar to making an unlawful termination application in respect of the same conduct. We turn now to consider the appeal grounds.
The appeal grounds
[82] We commence by considering ground 2 of the appeal which asserts that the Deputy President erred in finding that the Respondent’s conduct did not fall under what the Appellant describes as “an exception permitted by s.351(2) (a) or s.351(2)(b) of the FW Act”. In the decision, the Deputy President characterised the Appellant’s argument as a submission that “conduct” for the purposes of s.723 cannot be conduct excluded from being unlawful by s.351(2)(a) or (b) of the FW Act. The Deputy President concluded that this argument is misconceived. We agree with that conclusion.
[83] Section 351 of the FW Act provides as follows:
“351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.”
[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.
[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.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant, 17 January 2022.
Respondent, 4 February 2022.
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1 Jacobs v Adelaide Theosophical Society Incorporated [2021] FWC 6412.
3 [2021] FWCFB 3908 at [24].
4 Jacobs v Adelaide Theosophical Society Incorporated [2021] FWC 6412 at [40] – [43].
5 Mr Scott McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768 at [38].
6 Mr Scott McIntyre v Special Broadcasting Services Corporat
7 ion T/A SBS Corporation [2015] FWC 6768
8 at [38].
Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).
9 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
10 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
11 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
12 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
15 Ibid at 25.
16 Ibid at [38].
17 Ibid at [39].
19 [2021] FWC 6412 at [46].
20 Ibid at [47].
21 Reeve v Ramsay Health Care Australia Pty Ltd [2012] FWA 3141; Zhang v