Findley v MSS Security Pty Ltd

In *Findley v MSS Security Pty Ltd*, the Federal Court of Australia considered a dispute between an employee, Mr. Findley, and his former employer, MSS Security Pty Ltd. Mr. Findley alleged that MSS Security had contravened section 351 of the *Fair Work Act 2009* (Cth) by taking adverse action against him because of his race. Specifically, he claimed that his employment was terminated due to his Indigenous Australian heritage.

The primary legal issue before the Court was whether MSS Security had engaged in unlawful discrimination by terminating Mr. Findley's employment. This required the Court to determine whether Mr. Findley's race was a substantial and operative reason for the decision to end his employment, as contemplated by section 360 of the *Fair Work Act 2009* (Cth). The Court also had to consider the employer's defence, if any, to the alleged contravention.

Judge McNab found that Mr. Findley had established a prima facie case of racial discrimination, demonstrating that his race was a significant factor in the termination decision. The Court was not satisfied with the explanations provided by MSS Security for the dismissal, concluding that the employer had failed to discharge its onus of proving that race was not a substantial and operative reason for the adverse action. Consequently, the Court found that MSS Security had contravened section 351 of the *Fair Work Act 2009* (Cth).