McNulty v Modular Training Pty Ltd
[2024] FedCFamC2G 862
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McNulty v Modular Training Pty Ltd [2024] FedCFamC2G 862
File number(s): PEG 151 of 2024 Judgment of: JUDGE STREET Date of judgment: 13 September 2024 Catchwords: HUMAN RIGHTS – COVID -leave granted to bring proceedings against employer – leave to bring proceedings against occupier refused Legislation: Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Public Health Act 2016 (WA)
Cases cited: Budini v Sunnyfield [2019] FCA 2164
James v Workpower Inc [2018] FCA 2083
Maksacheff v Commissioner of Police (WA) [2023] FCA 406
Purvis v State of New South Wales (Dept of Education and Training) (2003) 217 CLR 92
Rindeklev v Comcare [2024] FCA 804
Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063
Wilson v Britten-Jones (No 2) [2020] FCA 1290
Wolfraad v Serco Australia Pty Ltd [2022] FedFamC2G 1063
X v Commonwealth (1999) 200 CLR 177 208
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of Hearing On the Papers Place: Sydney Solicitor for the Applicant: Lawfield Legal Practice Solicitor for the Respondents: DLA Piper Australia ORDERS
PEG 151 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JACKIE KYLIE MCNULTY
Applicant
AND: MODULAR TRAINING PTY LTD ACN 117 896 769
First Respondent
AQUIRIAN LIMITED ACN 634 457 506
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Grants leave to the applicant to bring proceedings against the first respondent.
2.Refuses to grant leave to the applicant to bring proceedings against the second applicant.
3.The applicant file and serve a second statement of claim and an amended application removing the second respondent as a party on or before 11 October 2024.
4.The respondent file and serve a defence on or before 8 November 2024.
5.The applicant file and serve any reply on or before 6 December 2024.
6.Refer the matter to a Registrar under s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 30.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for mediation.
7.The parties seek to have the matter relisted within 7 days of an unsuccessful mediation.
8.Leave is granted to the parties to provide consent orders to be made in chambers if appropriate.
9.Liberty to apply on 3 days notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 23 April 2024, under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) by application seeking leave. The applicant requires leave under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) to commence proceedings against the first and second respondents under the Disability Discrimination Act 1992 (Cth) for unlawful discrimination.
Pursuant to Order 3 made by Judge Ladhams on 26 July 2024, the parties consented to these proceedings being determined on the papers without an oral hearing on 21 August 2024.
There was a substituted statement of claim filed on 1 August 2024. Relevantly it alleges certain facts as to the applicant having a disability, being on annual leave, a request for change of work arrangements and steps required by 14 January 2022. The pleading alleges discrimination by the first respondent under s6(1) and s6(2) of the Disability Discrimination Act 1992 (Cth). as well as a failure to comply with s65A of the Fair Work Act 2009 (Cth). The applicant alleges discrimination by the second respondent under s6(1) and (6(2) and breach of s23. The applicant was terminated on 14 January 2022. The Court has taken into account the allegations and material in the three affidavits by the applicant and the affidavit filed on behalf of the respondents. The Court has also received submissions from the applicant and the respondent.
SUMMARY OF APPLICANT’S SUBMISSIONS
Section 46PO provides as follows:
Making an application
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)
(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(2A) The application may be made:
(a) by an affected person in relation to the terminated complaint:
(i) on that person's own behalf; or
(ii) on behalf of that person and one or more other affected persons in relation to the terminated complaint; or
(b) by 2 or more affected persons in relation to the terminated complaint:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or
(c) by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(l)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b).
Court orders
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination.
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re - employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section-- see section 43 of the Federal Court of Australia Act 1976.
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section--see section 214 of the Federal Circuit and Family Court of Australia Act 2021.
(4A) In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
The applicant identified the principles for an application for leave to commence proceedings as summarised by Jackson J in Maksacheff v Commissioner of Police (WA) [2023] FCA 406 at [22] as follows:
22. Mortimer J (as she then was) considered the requirement for leave under s 46PO(3A)(a) in James v WorkPower Inc [2018] FCA 2083. Her Honour's statement of the principles has been applied in numerous subsequent cases. In summary:
(1) Like other judicial discretions under which leave may be granted to take a step in a proceeding, the interests of the administration of justice are a governing consideration. The amendments to s 46PO in 2017 which introduced the leave requirement had a clear purpose, and any consideration as to where the interests of the administration of justice lie must give weight to that purpose (at [31]).
(2) That purpose was to provide a filter. The amendments removed what was previously an entitlement to bring a proceeding in this Court once a complaint was terminated (at [32]). Mortimer J reached that view after considering s 46PO in its statutory context. In particular, leave is not required where the complaint is of public importance (s 46PH(1)(h)) or where it was terminated because there was no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)), which implicitly recognises that the complaint is reasonably arguable (at [33]‑[36]).
(3) Therefore it is appropriate for the Court to consider whether the claims made by an applicant are reasonably arguable and are, at least, not fanciful. That bar is not particularly high as the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources which would likely be consumed by dealing with the proceeding (at [37]).
(4) The Court should not embark on a detailed consideration and determination of the merits of an applicant's underlying arguments about unlawful discrimination. Questions of fact and law which are arguable should be determined at trial (at [39]).
The applicant submits that a proposed application is reasonably arguable and that there exist in the material relied on a factual basis to establish the applicants claim is reasonable and that leave should be granted pursuant. to Maksacheff v Commissioner of Police (WA) [2023] FCA 406 [22];
The applicant also relied upon Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86] as follows;
86. Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant’s claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave.
The applicants submitted that they satisfy the ss 4(c), (e), (k) and (j) definition of disability under the Disability Discrimination Act 1992 (Cth) (“the Act”).
The applicant submitted that the elements for the cause of action under s 6(1) of the Act, for indirect discrimination on the grounds of medical disabilities against the first respondent are reasonably arguable. The applicant submitted that the first respondent imposed an employer direction which because of the applicant’s disability they were not able to comply with, and the applicant has accordingly suffered a disadvantage in being terminated for failing to comply with the employer direction.
The applicant submitted that the elements of indirect discrimination under s 6(2) of the Act on the ground of the medical conditions by the first respondent in failing to make reasonable adjustments are reasonably arguable. The applicant submitted that an employer direction was enforced and because of the applicant’s disability the applicant would only be able to comply if the first respondent made reasonable adjustments in allowing the applicant to work from home or allowing the applicant to work in part of the premises with other unvaccinated staff, and the applicant was instead terminated.
The applicant submitted that the employer direction was issued by the second respondent.
The applicant submitted that a comparator is not required for s 6 of the Act. The applicant submitted that the comparators are the other employees you were unvaccinated but did not have medical disabilities and attended the office.
The applicant identified that Covid-19 is caused by the presence of the SARS-CoV-2 virus in the body.
The applicant identified the Disability Discrimination Bill 1992 Explanatory Memorandum definition of disability. The applicant submitted that the explanatory memorandum’s definition of disability supported the view that Covid-19 is a virus and therefore SARS-CoV-2 is an organism present in the body.
The applicant submitted that SARS-CoV-2 and Covid-19 is a virus and disease paring like HIV and AIDS, that being SARS-CoV-2 is a virus capable of causing Covid-19. It was submitted that a virus is an organism based upon the explanatory memorandum’s definition of disability.
The applicant identified s 48 of the Act. The applicant submitted that the premise of s 48 is that an infectious disease is prima facie a disability within the meaning of the Act.
The applicant identified that the definition of disability in the Act includes a disability imputed to a person pursuant to s 4(c) and (d). The applicant submitted that the extension of the meaning of disability to include actions taken because of an imputed infectious disease may extend the meaning beyond an objective presence or potential presence of an infectious disease to a subjective imputation by the discriminator.
The applicant submitted that the imputation of Covid-19 to unvaccinated persons is supported by medical opinion in the public domain. The applicant identified the affidavit of Dr Andrew Robertson, Chief Health Officer of Western Australia filed and read into evidence in proceedings in the Supreme Court of Western Australia. The applicant identified that the Harman undertaking does not apply to Doctor Robert’s affidavit. The applicant identified passages of Doctor Robertson’s affidavit/
The applicant submitted that Covid-19 caused by the presence of SARS-CoV-2 coronavirus existing in the future which is imputed to the applicant due to the applicant being unvaccinated is a reasonably arguable disability.
The applicant submitted that elements for the cause of action for direct discrimination based on the covid disability by the first respondent in breach of s 5 of the Act are reasonably arguable. The applicant submitted that the applicant was terminated for failing to be vaccinated and the termination was less favourable treatment than the employees who did not have a covid disability and were vaccinated were not terminated or stood down.
The applicant submitted that the elements of direct discrimination by failing to make reasonable adjustments by the first respondent in breach of s 5(2) of the Act are reasonably arguable. The applicant submitted that the applicant was terminated for failing to be vaccinated, and reasonable adjustments would be to allow the applicant to work from home, and failure to make those adjustments lead to the applicant’s termination whilst employees who did not have a covid disability and were vaccinated were not terminated or stood down.
The applicant identified that s 23 of the Act prohibits discrimination in access to premises.
The applicant identified that the second respondent had control of the premises at Level 5, 109 St Georges Terrace, Perth.
The applicant submitted that the elements of the cause of action for discrimination by the second respondent by reason of the medical disability in breach of s 23 of the Act is reasonably arguable. The applicant submitted that an inference can be drawn on the grounds from the fact that other employees of the second respondent’s subsidiaries who were not vaccinated were permitted to access the premises that the second respondent imposed a condition on the applicant’s entry to the premises being the employer condition that the applicant was unable to comply with due to medical disabilities, and that the employer direction and termination had the effect that the applicant was refused access to the premises because the applicant was unvaccinated.
The applicant submitted that the applicant has a reasonable factual basis for the allegations of indirect and direct discrimination as pleaded in the substituted statement of claim and that such allegations are reasonably arguable.
The applicant submitted that if the Court finds that some parts of the application do not meet the threshold requirement for leave, that the Court grant leave only in respect of the parts which meet the threshold.
SUMMARY OF RESPONDENTS’ SUBMISSIONS
The respondents identified the first respondent delivers primarily in person training courses for the mining industry.
The respondents identified that the applicant was employed by the first respondent on a permanent basis in the position of training consultant.
The respondents identified that the applicants place of work was the first respondents training office located at 190 St Georges Terrace, Perth WA.
The respondents identified that the first respondent is a subsidiary of the second respondent.
The respondents identified that the Minister for Health declared a public health state of emergency with effect from 1.30pm on 23 March 2020 in respect of Covid-19 and applied to the state of Western Australia. The respondents’ identified the Minister for Health declared a further public health state of emergency with effect from 4.25pm on 22 September 2021 in respect of Covid-19 and applied to the state of Western Australia. The respondents’ identified that the public health state of emergency was revoked from 00:01 hours 4 November 2022.
The respondents identified that in 2021 and 2022 the Western Australian Government issues directions pursuant to s 151(1)(e), 151(1)(k), 180 and 190(1)(p) of the Public Health Act 2016 (WA). The respondents’ identified that the effect of the direction was that as on and from 1 January 2022 a person was not able to enter or remain at an educational facility or education worker unless the person was partially vaccinated against Covid-19, fully vaccinated against Covid-19 or held a temporary or permanent exemption of which evidence was produced on request.
The respondents’ identified paragraph 8 of the Education Worker (Restrictions on Access) Directions (No 4).
The respondents identified the definitions of education facility, education worker, exempt person, medical exemption, and temporary exemption contained within the Education Worker (Restrictions on Access) Directions (No 4) (“Directions (No 4)”).
The respondents submitted that at all relevant times the first respondent was an educational facility for the purpose of Directions (No 4) as it was and is a vocational education and training institution. The respondents’ submitted that at all relevant times the applicant was an education worker for the purpose of the Directions (No 4) as the applicant was a vocational education and training worker.
The respondents’ identified paragraph 9a of Directions (No 4), that the first respondent was required to take all reasonable and lawful steps to only roster on or otherwise permit to work in an educational facility, and education worker who is an exempt person.
The respondents’ identified that the first respondent communicated the directions to the applicant on and from 13 December 2021.
The respondents’ identified that as of 14 January 2022 the applicant was not partially vaccinated and did not hold a permanent or temporary medical exemption, and the first respondent in accordance with Directions (No 4) was unable to permit the applicant to enter its premises.
The respondents’ identified the first respondent required the applicant’s role to be performed, and as the applicant was unable to perform their role by delivering in person training at its premises, the first respondent terminated the applicant’s employment.
The respondents’ identified s 46PO(1) and s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).
The respondents’ identified that s 46PO(3A) is a filter to preclude complaints whose merits are disproportionate to the time likely to be consumed dealing with them.
The respondents’ identified that pursuant to James v Workpower Inc [2018] FCA 2083 [37] the Court in determining whether leave should be granted ought to consider whether the applicants claim is reasonably arguable.
The respondents’ identified that the Court ought to consider whether or not the merits are disproportionate to the time and resources likely to be consumed pursuant to Rindeklev v Comcare [2024] FCA 804 25 and whether the proceedings would have any reasonable prospects of success pursuant to Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 [39] and Budini v Sunnyfield [2019] FCA 2164 [52].
Pursuant to James v Workpower Inc [2018] FCA 2083 [38] the respondents identified other permissible considerations to be taken into account by the Court.
The respondents’ pursuant to Wilson v Britten Jones (No 2) [2020] FCA 1290 [86] identified that the applicant needs to establish a factual basis for the claims including that the applicant has a disability at least at a threshold level.
The respondents’ identified that the second respondent was not a party to the applicant’s complaint to the Australian Human Rights Commission that had been terminated. The respondents submitted that the applicant cannot issue proceedings in this Court against the second respondent.
The respondents’ submitted that no sustainable cause of action is pleaded against the second respondent in that the second respondent was not the applicant’s employer, nor is it pleaded that the second responded was acting on behalf of the first respondent and the premises at Level 5, 190 St Georges Terrace were not owned or controlled by the second respondent.
The respondents identified the definition of disability in s 4 of the Disability Discrimination Act 1992 (Cth) (“the Act”).
The respondents identified the disability the applicant alleges she suffers from.
Pursuant to Purvis v State of New South Wales (Dept of Education and Training) (2003) 217 CLR 92 [45] the respondents identified that the remedial nature of the Act requires that it be given a broad and beneficial construction.
The respondents submit that there is no medical evidence produced by the applicant to support her assertion that she has a disability, may in the future have a disability or a disability which should be imputed to her. The respondents submitted that the immunologist has refused the referral on the basis that there are no grounds to suspect a previous reaction that would prevent the applicant from receiving a vaccination against Covid-19 and that there were no other grounds that warranted such referral.
The respondents identified that the referral attached as annexure JM to the applicant’s affidavit sworn 23 April 2024 from Dr Bongiwe does not diagnose a disability, does not state a diagnosis, and only refers to anaphylaxis in relation to bees. It was identified by the respondents that the referral expressly states non recorded in the box requiring relevant family history.
The respondents in accordance with Wolfraad v Serco Australia Pty Ltd [2022] FedFamC2G 1063 [55] submitted that being unvaccinated is not a disability.
The respondents submitted that there was no requirement imposed by the first respondent for the applicant to provide a copy of her initial or full vaccination by 31 January 2021. The respondents submitted that the alleged requirement with which the applicant was required to comply was compliance with directions issued by the Western Australian Government. The respondents submitted that it was reasonable for the first respondent to expect the applicant to comply.
The respondents submitted that the applicant could have complied with the directions by either being vaccinated against Covid-19 or obtaining a temporary or permanent medical exemption within the required time frame.
The respondents submitted that the applicants alleged disability did not prevent the applicant complying with the directions either at all or within the required time frame.
The respondents identified that the applicant obtained a medical temporary exemption for one month on 17 January 2022. The respondents submitted that the applicant would have ceased to comply with the directions by 18 February 2022.
The respondents identified that the first respondent only had two employees who were both required to comply with the directions.
The respondents identified that other persons who worked at the premises were not employees of the first respondent.
The respondents identified s 21A of the Act. It was submitted that the applicant’s position could not have been performed at home as it required face to face training to be delivered. The respondents pursuant to X v Commonwealth (1999) 200 CLR 177 208 submitted that the place at which work is performed can be an inherent requirement of the role.
It was submitted that if the applicant had a disability which is denied, and the first respondent discriminated against the applicant, which is also denied, then it is not unlawful because the applicant could not comply with an inherent requirement of the work, being the requirement to attend the first respondent’s premises.
It is submitted that the applicant’s claim has no merit as pleaded and on the undisputed facts has no prospects of success.
The respondents identified that there is no ongoing employment relationship between the applicant the first respondent. It was submitted that as the directions are no longer in place any alleged discrimination is not continuing and nor is there any matter of general application or public importance that arises.
The respondents identified that the Australian Human Rights Commissions reasons for its decision have not been made available to the Court or the respondents.
The respondents submitted that there has been no delay by the applicant and no prejudice. It was further submitted that the matter is not factually or legally complex.
The respondents submitted that the applicant’s allegation that the first respondent did not comply with s 65A(3) of the Fair Work Act 2009 (Cth) does not give rise to a cause of action by the applicant against the first respondent. The respondents identified that there was no mechanism for the enforcement of s 65A(3) of the Fair Work Act 2009 (Cth) until the amendments made by item 459 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) which it is alleged took effect on 6 June 2023.
DETERMINATION OF LEAVE
The Court accepts, taking into account that alleged factual basis that there is a sufficiently arguable case against the first respondent to warrant the grant of leave to bring the proposed proceedings against the first respondent.
The Court is not satisfied that there is a sufficiently arguable case against the second respondent taking into account he alleged factual basis and denies the applicant leave.
This is a procedural ruling as to leave and does not reflect any final findings. For these reasons the Court makes the above orders, which provide for filing a second amended statement of claim and an amended application removing the second respondent as a party.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 September 2024
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