Millar v FQM Australia Nickel Pty Ltd

The applicant, Millar, brought an application against FQM Australia Nickel Pty Ltd, his former employer, seeking reinstatement into his employment on the basis of alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth). The application was brought under the Australian Human Rights Commission Act 1986 (Cth) after Millar had been terminated from his employment. Millar claimed that his termination was discriminatory as it related to his Crohn's disease and the medication he was taking, which contains THC, and that his employer had failed to make reasonable adjustments to its drug testing protocol. The application was made while a complaint was pending before the Australian Human Rights Commission. Millar sought reinstatement into his employment on full paid duties, or alternatively, reinstatement on unpaid leave pending the outcome of the Commission's complaint process.

The primary legal issue before the court was whether it had jurisdiction to grant the orders sought by Millar, given that his employment had already been terminated. The court also had to consider whether the orders sought were appropriate given the circumstances. The court considered whether the alternative relief of placing Millar on unpaid leave was an appropriate way to preserve his rights pending the outcome of the complaint process before the Commission. The court found that it did have jurisdiction to grant the orders sought and that the alternative relief was appropriate in the circumstances.

The court found that it had jurisdiction to grant the orders sought by Millar, despite his employment having been terminated, because the orders were intended to preserve his rights which would be enjoyed but for the conduct said to be unlawful discrimination. The court found that the alternative relief of placing Millar on unpaid leave was appropriate because it would preserve the pre-existing position of the parties as it relates to proceedings before the Commission. The court noted that the orders were made in the alternative, meaning that either order could be enforced depending on the outcome of the complaint process before the Commission.

The court made orders that FQM Australia Nickel Pty Ltd must reinstate Millar's employment and place him on unpaid leave pending the conclusion of the complaint process before the Australian Human Rights Commission. The court also made orders relating to costs, noting that any party may seek an order as to the costs of the application by filing a submission of no more than three pages setting out the proposed order and the contentions advanced in support of the proposed order together with any affidavit in support. The court noted that any application for costs will be determined on the papers.