Hodkinson v Commonwealth

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.