Wolfraad v Serco Australia Pty Limited

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Wolfraad v Serco Australia Pty Limited [2022] FedCFamC2G 1063  

File number(s): SYG 302 of 2022
Judgment of: JUDGE CAMERON
Date of judgment: 21 December 2022
Catchwords: INDUSTRIAL LAW – adverse action – discrimination – inherent requirements of particular position.  
Legislation:

Fair Work Act 2009 (Cth) ss 340, 342, 351, 361

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 21A

Work Health and Safety Act 2011 (NSW)

Industrial Relations Act 1988 (Cth) s 170DF(1)
Cases cited:

Hodkinson v Commonwealth (2011) 248 FLR 409

Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

Jain v Special Broadcasting Service Corporation [2022] FedCFamC2G 814

X v Commonwealth (1999) 200 CLR 177

Qantas Airways Ltd v Christie (1998) 193 CLR 280
Division: General
Number of paragraphs: 69
Date of hearing: 29 November 2022
Place: Sydney
Counsel for the Applicant: Mr M. Mando
Counsel for the Respondent: Mr J. Fernon SC
Solicitor for the Respondent: Baker & Mckenzie

ORDERS

SYG 302 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MARK JOHN WOLFRAAD

Applicant
AND:

SERCO AUSTRALIA PTY LIMITED (ACN 003 677 352)

Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

21 December 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

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 Cameron

Introduction

  1. From 7 October 2014 to 18 November 2021 the applicant, Mr Wolfraad, was employed by the respondent, Serco Australia Pty Limited (“Serco”), first as a casual client services officer and then as a full-time Detainee Services Officer (“DSO”) at Villawood Immigration Detention Centre (“VIDC”). On 28 February 2022 he filed an originating application alleging that in contravention of s.351 of the Fair Work Act 2009 (Cth) (“FW Act”), he had been discriminated against due to a physical disability or perceived physical disability and because of his political opinion. Mr Wolfraad alleged that Serco’s coronavirus disease 2019 (“COVID-19”) vaccination policy was unreasonable and that the threat of, and the carrying out of, his termination due to non-compliance with the policy was adverse action taken against him. Mr Wolfraad’s application sought compensation and reinstatement.

  2. Serco denied that Mr Wolfraad had been discriminated against because of any physical disability or perceived physical disability and political opinion. It alleged that any action taken by Serco was because Mr Wolfraad could not meet the inherent requirements of his role as a DSO at VIDC without providing evidence that he had received his first vaccination against…

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Details
Case
[2022] FedCFamC2G 1063
Decision Date

CaseChat Overview and Summary

In the case of Wolfraad v Serco Australia Pty Limited, the applicant, Mr Wolfraad, sought relief under the Fair Work Act 2009 (Cth) (FW Act), claiming that he was dismissed by Serco Australia Pty Limited because of his unvaccinated status, which was a real or perceived disability, and because of his political opinion opposing employer-mandated COVID-19 vaccinations. Mr Wolfraad alleged that the dismissal was discriminatory and in contravention of s.351 of the FW Act, which prohibits adverse action taken against an employee for reasons including disability. The court was tasked with determining whether Serco’s dismissal of Mr Wolfraad contravened s.351 of the FW Act.

The primary legal issue before the court was whether Serco’s dismissal of Mr Wolfraad contravened s.351 of the FW Act by discriminating against him because of his unvaccinated status, which was a real or perceived disability, and because of his political opinion opposing employer-mandated COVID-19 vaccinations. The court needed to consider whether the dismissal was indeed based on prohibited grounds such as disability or political opinion, and whether it constituted adverse action under the FW Act.

The court found that the dismissal was not discriminatory as alleged. It held that Mr Wolfraad was dismissed because of the inherent requirements of his role and his failure to comply with a mandatory vaccination policy. The court reasoned that even if the dismissal was for a reason prohibited by s.351(1) of the FW Act, it was due to Mr Wolfraad’s unwillingness and failure to fulfil an important requirement of his role, namely being vaccinated against COVID-19. Consequently, the court concluded that none of the breaches of s.351 of the FW Act alleged by Mr Wolfraad were made out. The application was dismissed.

The final orders of the court were that the application be dismissed with no orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Wolfraad’s evidence was that on 19 November 2021 he received a termination notice from Serco that read in part: ...Having considered all of the correspondence including your response to the Show Cause letter dated 5 November 2021, I am satisfied you have not provided:1.any relevant medical (or other) information sufficient to warrant Serco granting you an exemption from vaccination;2.any evidence to Serco that you have (or intend to) make arrangements to receive a COVID-19 vaccination. This is despite multiple directions and an extension of time following the Show Cause correspondence to allow you to demonstrate compliance; and/or 3.any information sufficient to warrant further dialogue or consideration in respect of your ongoing employment.In your correspondence dated 18 November 2021, you state that Serco's direction is discriminatory. For completeness, I note you have not submitted a Request for Exemption Form, as required under the COVID-19 Policy, nor have you provided any medical evidence in support of a valid exemption request, despite being given every opportunity to do so.Finally, I am aware that on 12 November 2021, you received correspondence in relation to potential alternate roles within Serco, namely casual roles available in the Contact Call Centre for Services Australia or the NDIA Team. That correspondence contained a requirement to communicate your interest, if any, by no later than 15 November 2021. Serco did not receive any expression of interest from you.As at today's date, you remain in breach of the Direction and are not compliant with the Policy. On the basis of your failure to comply with the Direction and the COVID-19 Policy you are unable to perform the inherent requirements of your role. Accordingly, your employment is terminated effective from today, 19 November 2021.... Respondent’s Evidence Don Taylor Mr Taylor is employed by Serco Australia as the General Manager of VIDC and deposed that he is responsible for its day-to-day management and operation, the safety and security of all persons at the detention centre, and all transport and escort tasks originating from it. Mr Taylor deposed that VIDC houses approximately 520 immigration detainees, and that DSOs have direct and frequent contact with detainees and are primarily responsible for maintaining the safety and security of the centre.Detention Service Officers Mr Taylor deposed that Mr Wolfraad commenced as a DSO in 2015 and that the position description for that role was set out in the Serco Immigration Services Agreement 2021 (“Enterprise Agreement”) relevantly as follows: 15. Job classifications – Detention Service Employees Detention Service Officers(a) Detention Service Officer (DSO 1) - Upon commencement of employment, a Detention Service Officer at this Level will be undertaking training towards a Certificate III in Immigration Detention Operations and Certificate III In Correctional Practice qualification or equivalent qualification.(i) A Detention Service Officer at this Level will complete all duties and responsibilities that are within his or her level of competence and training. This can include performance of some of the duties of an Accredited Detention Service Officer (DSO 2) under supervision. The degree of supervision required will be determined by the levels of on the job experience/competence or other accredited and relevant training completed.(ii) A Detention Service Officer (DSO 1) is responsible for ensuring the Detainees are in a safe, secure and hygienic environment. He or she assists in maintaining the static and dynamic security of the Centre. The duties at this Level may include escorting Detainees to courts and medical or other appointments, driving duties, and like duties provided that for the first 6 months of employment, such duties are performed with an Accredited Detention Service Officer (DSO 2) or the Employee concerned has completed the relevant training and been deemed competent to complete the task(s).…

Decision

Reasons for decision

Consequently, even if Serco dismissed Mr Wolfraad for a reason prohibited by s.351(1) of the FW Act, I find it did so because of the inherent requirements of his role and his unwillingness and failure to fulfil an important one of them, namely being vaccinated against COVID-19. Conclusion None of the breaches of s.351 of the FW Act alleged by Mr Wolfraad have been made out. Consequently, the application will be dismissed.

Ratio Decidendi

Legal Principle Established

Mr Wolfraad argued that one reason for his dismissal had been because he had sent the group email on 18 November 2021 which was, he submitted, an expression of political opinion. He contended that the email must have had something to do with his dismissal because he was sacked the day after he sent it. He submitted that although “political” has been interpreted to mean a matter or activity which essentially involves the state and “bears on government”, a broader definition including “beliefs and opinions concerning the distribution and utilisation of economic, social and cultural power in a society”, has also been employed. His argument was that his opposition to the COVID-19 vaccines or mandatory vaccination policies constituted a political opinion and, because of this expressed opposition, his dismissal was discrimination based on political opinion or beliefs contrary to s.351 of the FW Act.ConsiderationPreliminaries I accept the witnesses’ evidence. Mr Wolfraad’s allegation was that Serco had contravened s.351 of the FW Act by discriminating against him because of his unvaccinated status, which was a real or perceived disability, and because of his political opinion opposing employer-mandated COVID-19 vaccinations. Dismissal from employment is adverse action as defined by item 1 of s.342(1) of the FW Act and threats of dismissal are also adverse action by virtue of s.342(2)(a) of the FW Act. The issue in this case is whether Serco’s dismissal of Mr Wolfraad, or alleged threats of dismissal, contravened s.351 of the FW Act as he alleged. Discrimination In para.A of his pleading, amongst other things, Mr Wolfraad alleged that Serco had “discriminated against” him because he had not been vaccinated against COVID-19. In para.B of the pleading he alleged that his dismissal had been discriminatory and part of a “general policy of discrimination against all those employees who” were unvaccinated and had not complied with Serco’s unreasonable requirement that they be injected with a COVID-19 vaccine. In para.C of the pleading he alleged that the alleged requirement to be vaccinated against COVID-19 was unreasonable:… because the COVID-19 vaccine would not prevent infection with the COVID-19 virus, nor would it prevent transmission of the COVID-19 virus once a vaccinated individual was infected. Each of those allegations relies on the DD Act’s prohibitions on direct and indirect discrimination and on the fact that imposing on a person a requirement or condition with which they cannot comply because of a disability or which would disadvantage them because of their disability will amount to indirect discrimination contrary to that Act unless the requirement or condition is reasonable in the circumstances. The allegations made in part of para.A and in paras.B and C of the pleading are concerned with discrimination which, as this proceeding seeks relief under the FW Act, focuses attention on the how the word “discrimination” is used in s.351 of the FW Act. In Hodkinson v Commonwealth (2011) 248 FLR 409, I said that:Although s 351 is headed “Discrimination” this heading is not to be taken as part of the Act: s 13(3) of the Acts Interpretation Act 1901 (Cth). The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s 351(1), such as a person’s disability, that a contravention is proved. The criteria found in s 351(1) rely in no way on the Disability Discrimination Act.Further, s 351 does not employ the word “discrimination” other than as a term by which to identify other Acts which provide exceptions to the operation of s 351(1). The absence of that word from the list of prohibited reasons for adverse action found in s 351(1) means that there is no grammatical link between that subsection and ss 5 and 6 of the Disability Discrimination Act. There is, therefore, no term in s 351(1) whose proper construction may be understood by reference to what is contained in ss 5 and 6 of the Disability Discrimination Act. Additionally, the fact that s 351(1)’s operation is limited by reference to exceptions derived from anti-discrimination legislation provides no basis to conclude that other features of those Acts should also influence the operation of s 351. Section 351(2) is dependent upon s 351(1) and is concerned with limiting s 351(1)’s scope, not with expanding it. Consequently, the fact that certain conduct mentioned in the Disability Discrimination Act is expressly excluded from the reach of s 351(1) does not, in the circumstances, suggest that conduct mentioned in the Disability Discrimination Act which is not so excluded is to be included in the proscriptions in s 351(1) other than to the extent that the subsection’s express terms already prohibit it. That is to say, s 351(2)’s exclusion of certain conduct from the operation of s 351(1) by reference to, amongst others, the Disability Discrimination Act, is insufficient to incorporate into s 351(1) conduct referred to in those Acts which is not excepted by s 351(2).For these reasons, conduct which contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the FWA. (at 442-443 [140]-[143])See also Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 455-456 [113], [114] and Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 at [61], [62].