INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – dismissal – injury to employee in employment – alteration of position of employee to employee’s prejudice – discrimination between employees of employer.
INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – disability discrimination contrary to s.351 alleged – ss.5 and 6 of the Disability Discrimination Act 1992 do not inform the interpretation of s.351 – conduct which contravenes the Disability Discrimination Act 1992 does not, by reason of that contravention, also contravene the Fair Work Act 2009.
INDUSTRIAL LAW – Fair Work Act 2009 – dismissal for temporary absence from work contrary to s.352 – reg.3.01 of the Fair Work Regulations 2009 provides exhaustive statement of illnesses or injuries which will support a claim under s.352.
INDUSTRIAL LAW – Fair Work Act 2009 – reverse onus of proof provided by s.361 – provisions to which reverse onus applies.
PRACTICE & PROCEDURE – Fair Work Act 2009 – reverse onus of proof provided by s.361 – before reverse onus will operate applicant must identify the prohibited reason for the alleged action which the respondent must disprove in order to make out its defence.
WORDS & PHRASES – Fair Work Act 2009 – “injures employee in his or her employment” – “alters the position of the employee to the employee’s prejudice” – “discriminates between the employee and other employees of the employer”.
WORDS & PHRASES – Fair Work Act 2009 – “disability” – to be understood according to its ordinary meaning, not by reference to the definition of disability in the Disability Discrimination Act 1992.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hodkinson v Commonwealth [2011] FMCA 171
Case
[2011] FMCA 171
Decision Date
CaseChat Overview and Summary
The case of Hodkinson v Commonwealth involved a dispute under the Fair Work Act 2009 (Cth) concerning claims of adverse action against the Commonwealth, which included allegations of dismissal, injury to the employee in their employment, alteration of the employee's position to their prejudice, and discrimination. The applicant, Hodkinson, sought relief under various sections of the Fair Work Act, including s.351, which pertains to adverse action based on disability discrimination, and s.352, which concerns dismissal for temporary absence from work.
The legal issues before the court were whether conduct that contravenes the Disability Discrimination Act 1992 (Cth) also contravenes the Fair Work Act, the scope of the term "disability" under the Fair Work Act, the exhaustiveness of reg.3.01 of the Fair Work Regulations 2009 regarding illnesses or injuries that support a claim under s.352, and the application of the reverse onus of proof under s.361 of the Fair Work Act. The court had to determine if the Disability Discrimination Act informs the interpretation of the Fair Work Act and whether the conduct in question amounted to adverse action under the Fair Work Act.
The court found that the Disability Discrimination Act does not inform the interpretation of the Fair Work Act, and conduct that contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the Fair Work Act. The term "disability" under the Fair Work Act was to be understood according to its ordinary meaning, not by reference to the definition in the Disability Discrimination Act. The court also held that reg.3.01 of the Fair Work Regulations provides an exhaustive statement of the illnesses or injuries that will support a claim under s.352. Furthermore, the reverse onus of proof under s.361 applies only to specific provisions, and the applicant must identify the prohibited reason for the alleged action for the reverse onus to operate.
The application was dismissed, and the court found that the applicant had not satisfied the requirements of the Fair Work Act to establish the alleged adverse action.