FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566
File number(s): SYG 1964 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 June 2024 Catchwords: INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed. Legislation: Fair Work Act 2009 (Cth) ss 12, 340(1), 341, 342(1), 351, 386(1), 550(2), 793(1)
Workplace Relations Act 1996 (Cth) s 298K(1)
Public Health Act 2010 (NSW) s 7
Work Health and Safety Act 2011 (NSW) s 12, Pt 5, Div 2
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Childs v Metropolitan Transport Trust [1981] FCA 200
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27
Division: Fair Work Number of paragraphs: 130 Date of last submission/s: 22 December 2022 Date of hearing: 14 and 15 November 2022 Place:
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- AGLC
- Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566
- Case
- [2024] FedCFamC2G 566
- Decision Date
CaseChat Overview and Summary
Toki v All Class Training Pty Ltd is a case that concerns the dismissal of an employee from his employment by an employer. The employee, Mr Toki, was dismissed by his employer, All Class Training Pty Ltd (ACTPL) after he failed to comply with a public health order requiring the wearing of face masks at the workplace. The matter was brought before the Federal Circuit and Family Court of Australia. The primary legal issue that the court had to decide was whether the employer took adverse action against the employee because the employee held or exercised workplace rights, or because the applicant had a disability. The court also had to determine whether the employer's actions were justified as the employee failed to comply with a public health order.
The court held that the employer did not take adverse action against the employee because the employee held or exercised workplace rights or because he had a disability. The court found that the employer terminated the employee's employment because he failed to comply with a public health order on the employer's premises. The employer had directed the employee to wear a face mask, and when the employee failed to comply with the direction, the employer dismissed him. The court found that the employer's actions were reasonable and justified as the employee's failure to comply with the public health order put the health and safety of other employees and clients at risk.
The court dismissed the employee's application for unfair dismissal. The court held that the employer's decision to terminate the employee's employment was not based on any discriminatory grounds but was a reasonable and justifiable response to the employee's failure to comply with a public health order. The court found that the employer's actions were not adverse action within the meaning of the Fair Work Act 2009 (Cth). The court also held that the employer's decision to terminate the employee's employment was not influenced by any disability the employee may have had. The court found that the employer's actions were reasonable and justifiable in the circumstances.
The court held that the employer did not take adverse action against the employee because the employee held or exercised workplace rights or because he had a disability. The court found that the employer terminated the employee's employment because he failed to comply with a public health order on the employer's premises. The employer had directed the employee to wear a face mask, and when the employee failed to comply with the direction, the employer dismissed him. The court found that the employer's actions were reasonable and justified as the employee's failure to comply with the public health order put the health and safety of other employees and clients at risk.
The court dismissed the employee's application for unfair dismissal. The court held that the employer's decision to terminate the employee's employment was not based on any discriminatory grounds but was a reasonable and justifiable response to the employee's failure to comply with a public health order. The court found that the employer's actions were not adverse action within the meaning of the Fair Work Act 2009 (Cth). The court also held that the employer's decision to terminate the employee's employment was not influenced by any disability the employee may have had. The court found that the employer's actions were reasonable and justifiable in the circumstances.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
ACTPL accepts that it terminated Mr Toki’s employment. It denies, however, that Mr Toki exercised any workplace rights within the meaning of s 341 of the FW Act, or, if Mr Toki did hold or exercise any such workplace rights, ACTPL denies it terminated Mr Toki’s employment because Mr Toki held or exercised any workplace rights, or because he may have had a disability. ACTPL contends that it terminated Mr Toki’s employment because he breached public health orders while on ACTPL’s premises.EVIDENCE AND SOME FINDINGSACTPL’s business ACTPL is a registered training organisation based in Newcastle and the Hunter Valley area; and it is a preferred supplier of training and assessment services in New South Wales.[1] It conducts a number of courses. These include forklift training, EWP (elevated work platform) training, “dogging”, and rigging.[2] Mr Mearrick established the business as a sole trader in 2009, and ACTPL took over the business in 2010. Mr Mearrick (as I have already noted) is the sole director of ACTPL.[1] Affidavit A Mearrick 29.04.2022, [3][2] Affidavit A Mearrick 29.04.2022, [6] ACTPL conducts its courses at its site in Tomago, and on the sites of clients. The Tomago site has heavy equipment that is used for on-site practical training. The equipment includes elevated platforms, a confined space training unit, cranes, and forklifts. The training involves students using the machines. Most communication occurs indoors in training rooms where course participants perform the theory component of the relevant course. There is no great need for communication with course participants during practical exercises. Most of the instructor’s activities are devoted to supervising and observing. [3][3] Affidavit A Mearrick 29.04.2022, [7]23 July 2020 – ACTPL approves COVID-19 action plan Through ACTPL’s membership of Employsure, Mr Mearrick received regular updates about the appropriate responses businesses should take to comply with public health orders issued in relation to the COVID-19 outbreak.[4] On 23 July 2020 Mr Mearrick approved an action plan which set out ACTPL’s actions in response to COVID-19.[5][4] Affidavit A Mearrick 29.04.2022, [18][5] Affidavit A Mearrick 29.04.2022, [19], exhibit AM-1, pages 20-2113 August 2020 – Mr Toki commences employment with ACTPL On or about 13 August 2020 Mr Toki commenced employment with ACTPL as a “Trainer in Training”. He did so under the terms of a written contract of employment.[6] Before he commenced his employment Mr Toki completed a form titled “Health Questionnaire”. That document asked a number of questions which required either a “no” or a “yes” answer with additional information. The form identified a number of specific conditions and asked whether the person had any of them. Mr Toki answered “no” to each of these questions. [6] Affidavit F Toki 25.03.2022, [7]; exhibit FT-1, pages 11-22 The form then asked more general questions, to which Mr Toki also answered “no”. The questions included the following:Have you ever hadAny other accident, operation or illness?. . . .Any other current or recent medical condition or treatment which might affect your attendance or performance at work?
Decision
Reasons for decision
In short, Mr Mearrick, by the show cause letter, manifested a belief that Mr Toki had not complied with the requirements of the PH Order that he wear a mask; and that Mr Toki’s having failed to do so was a ground for summarily dismissing him from his employment. Mr Toki did not at the show cause meeting put forward anything that led Mr Mearrick to change his mind that the allegations he made in the show cause letter were true; Mr Mearrick decided to terminate Mr Toki’s employment because Mr Toki failed to comply with the PH Order; but, following his discussion with Mr Perry-Fonua, Mr Mearrick decided he would not record in the Termination Letter that he had decided to terminate Mr Toki’s employment because he failed to comply with the PH Order, but that he would record that he had decided to terminate Mr Toki’s employment “due to continual business operational requirements”. Mr Mearrick did not decide to terminate Mr Toki’s employment, or take the other adverse action against Mr Toki, because Mr Toki held or exercised workplace rights.Conclusion For these reasons, Mr Toki’s claims based on s 340(1) of the FW Act fail.MR TOKI’S CLAIMS BASED ON S 351 Given I am satisfied that Mr Mearrick, on behalf of ACTPL, decided to stand down Mr Toki from his employment, take disciplinary action against him, and, ultimately dismiss Mr Toki from his employment for the Alleged Reason, that is, because Mr Toki breached the PH Order on work premises, Mr Toki’s claim based on s 351(1) of the FW Act also fails.DISPOSITION I propose to order that the application be dismissed.
Ratio Decidendi
Legal Principle Established
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