Millar v FQM Australia Nickel Pty Ltd

Federal Court of Australia|2022-11-02|Before: Colvin J

Pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) the respondent shall reinstate the applicant's employment and place him on unpaid leave at least until the conclusion of the complaint process being conducted by the Australian Human Rights Commission in respect of a complaint dated 5 September 2022 concerning alleged discrimination in his employment by the respondent.
There is liberty to apply to vary or discharge these orders on reasonable notice.
The costs of the application be reserved.
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.
If a submission seeking a costs order is filed by a party then the other party shall file any responsive submission of no more than 3 pages together with any affidavit.
Any application for costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Mathew Millar is a mechanical fitter. Until recently, he was employed by FQM Australia Nickel Pty Ltd to work at its nickel mine in Ravensthorpe on a fly-in-fly-out basis. He was placed on unpaid leave on 27 July 2022 and his employment was terminated on 21 September 2022. Those events followed Mr Millar commencing to take medicalised marijuana with the psychoactive constituent tetrahydrocannabinol or THC for the treatment of symptoms of Crohn's disease. Mr Millar was taking a daily measured dose when required to alleviate symptoms. He had been prescribed the medication by a medical practitioner. There is a dispute between the parties as to whether the taking of the medication is also supported by Mr Millar's treating gastroenterologist. 2 Mr Millar says that he takes the medication prior to going to sleep. He says that the medication can make him drowsy. However, he says that he is not impaired for work the next day. 3 FQM says that safety is paramount on the mine site. It says that there is no recognised impairment test to identify whether a person is affected by drugs or alcohol, particularly THC. It has established a testing regime for its employees and compliance with that regime is a condition of employment for those working at the mine site. 4 It is common ground that Mr Millar is unable to pass the urine test required by FQM's testing regime whilst taking his prescribed medication. FQM accepts that the fact that a person fails the test does not demonstrate impairment. However, it maintains that the requirement that all employees must submit to and pass the testing regime is necessary in order to protect the safety of all employees on its mine site, particularly having regard to the nature of the work undertaken by Mr Millar and the unavailability of a recognised impairment test. 5 For present purposes, it may be accepted that Mr Millar's employment by FQM required him to undertake a number of safety critical tasks around other employees including the manual handling of heavy loads, driving vehicles, operating forklifts and working at heights on elevated work platforms. FQM also maintains that his employment required him to work in areas with large pipes containing pressurised high temperature slurry. It says that in working on this equipment and pipework any error by Mr Millar 'could result in significant loss of containment which may shower himself or others in the area with very harmful liquors or gas'. 6 Mr Millar maintains that FQM's refusal to allow flexibility in the workplace requirements for drug and alcohol testing to accommodate his particular medical treatment needs amounts to unlawful discrimination under the Disability Discrimination Act 1992 (Cth). 7 Mr Millar's industrial union has lodged a complaint with the Australian Human Rights Commission on his behalf in which it is alleged that FQM has discriminated against Mr Millar in his employment because of his disability. The complaint was commenced on 12 September 2022. Unless and until the complaint has been terminated on various grounds, proceedings cannot be commenced in this Court alleging unlawful discrimination: s 46PO of the Australian Human Rights Commission Act (Cth). The pursuit of the complaint to the point where it is appropriately terminated is a form of gateway to commencing substantive proceedings seeking the statutory remedies afforded by the Disability Discrimination Act. 8 If an application has been properly brought in this Court after the termination of the process conducted by the Commission and the Court is satisfied that there has been unlawful discrimination by any respondent then the Court may make any order it thinks fit including particular orders specified in s 46PO(4). Relevantly for present purposes, they include an order requiring a respondent to employ or re-employ an applicant or an order to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant. 9 Section 46PP of the Australian Human Rights Commission Act confers an express statutory power upon the Court to grant an interim injunction at any time after a complaint has been lodged with the Commission. The power to do so comes to an end when the process in the Commission has been terminated. The precise terms of that power are considered below. 10 Mr Millar sought an interim injunction under s 46PP in terms that would reinstate his employment and require FQM to return him to full paid duties until the conclusion of the complaint process in the Commission. In the alternative, he sought an order to maintain the status quo by placing him on unpaid leave until the conclusion of the complaint process in the Commission. 11 In support of his application for an order that would require a return to work, Mr Millar proffered an undertaking not to use his medication containing THC within eight hours of his rostered start times and not to attend work if he feels in any way impaired by those medications. He is also willing to submit to supervision by FQM of his use of those medications. 12 After an urgent hearing, I determined that there should be an order in terms of the alternative that would place Mr Millar on unpaid leave until at least the conclusion of the process in the Commission. At the time, I indicated that I would provide my reasons. These are my reasons.

The power conferred by s 46PP of the Australian Human Rights Commission Act 13 Section 46PP confines the statutory power to grant an interim injunction by identifying two objects to which the injunction may be directed, namely: (1) to maintain the status quo, as it existed immediately before the complaint was lodged; or (2) to maintain the rights of any complainant, respondent or affected person. 14 It further provides as follows: (2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person. (3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH. (4) The court concerned may discharge or vary an injunction granted under this section. (5) The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages. 15 In context, the use of the term 'interim injunction' indicates that the power conferred is to grant an injunction for an interval of time on the basis of something that is to occur in the meantime, namely the conduct of the pending complaint process by the Commission (after the conclusion of which an injunction cannot be granted). In consequence, it has been said that it can only operate 'to protect the complaint-making and resolution process' of the Commission: Daccache v BOC Ltd [2020] FCA 485 at [30] (McKerracher J).

The nature of the power conferred by s 46PP 16 Recently, Jackson J reviewed the state of the authorities as to what is required in considering whether to grant an interim injunction in the exercise of the statutory power conferred by s 46PP: Abraham v Housing Authority [2022] FCA 1145. His Honour expressed the view (at [37]) that: … there is no strict requirement on an applicant under s 46PP to satisfy the Court at the time of making that application that if the subject matter of the complaint becomes the subject matter of an application to the Court seeking remedies for unlawful discrimination, there is a probability of success in that latter application. In exercising statutory injunction powers, the court is not constrained by the traditional methods of equity, even though those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory context: see Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145 at [25] (Barrett J). Relevant features of the statutory context here are that an application under s 46PP(1) is only open to be made while a complaint is current: s 46PP(1) and s 46PP(3). Section 46PP(1) expressly provides that the purpose of the injunction is the maintenance of the status quo before the complaint and maintenance of the rights of any complainant, respondent to the complaint or affected person. These aspects of the statutory power indicate that it was granted in order to help preserve the effectiveness of the inquiry and conciliation processes of the Commission in relation to a complaint. It should be exercised principally with that purpose in mind. 17 With respect, I agree. Therefore, it is not the case that the usual tests on an interlocutory injunction apply. Rather, s 46PP confers a statutory power of a particular kind and consideration as to whether to exercise the power requires regard to those considerations that bear upon whether one or both of the stated objects would be achieved if an interim injunction was granted. It requires an exercise of judicial power by considering what the interests of justice require in the particular circumstances bearing in mind the evident purpose for which the power is conferred. 18 Without being exhaustive, in considering whether to grant an interim injunction under s 46PP it would be appropriate to have regard to the likely duration of the Commission's process, including any likely delays, the cause of them and the likely consequences for the parties in the meantime. There may also be regard to whether there is any collateral and improper purpose motivating the complaint. I suggest that it would also be appropriate to consider the relative burden that will fall on each of the parties if the injunction was granted compared to if it was refused. This will require consideration of aspects of what is usually described as the balance of convenience, albeit through the lens of the purpose for which the power has been granted. Different questions would fall for consideration if an injunction was sought after the Commission's process has come to an end and an application was commenced for statutory relief: as to which, see s 46PO(6). 19 As to whether it is relevant to consider whether the complaint is colourable or insufficiently meritorious to justify the exercise of the statutory power under s 46PP, I note that there is an express statutory requirement that it must be reasonably arguable that the alleged acts, commissions or practices the subject of any complaint to the Commission alleging unlawful discrimination are unlawful discrimination: s 46P(1A). Therefore, it appears that a complaint that failed to meet that requirement would not be a complaint in respect of which the power conferred by s 46PP would arise. Otherwise, as noted by Jackson J, part of the Commission's process may involve investigation. Therefore, the question whether it is appropriate to exercise the statutory power should not be approached on the basis that there is a burden of the usual extent on an applicant to provide evidence, particularly evidence that is not readily available to the applicant, in order to demonstrate sufficient strength in the applicant's case to sustain the relief sought. The relief is sought pending the outcome of a process that will include the possibility of investigation and the conduct of a conciliation process that will not require evidence to be adduced in the way that might be required by a curial process. The statutory power is directed towards facilitating that process. If the status quo is not preserved and if the rights of a complainant, respondent or affected person are disregarded in the course of that process then the evident purpose of the statutory process which the Commission is required to conduct would be undermined. In effect, the conferral of the power to grant an interim injunction to achieve one or both of the two stated objects allows the Court, to the extent that is considered just, to curtail resort to self-help outside the process to be conducted by the Commission. It enables a form of standstill to be put in place, to the extent that the Court considers it appropriate to do so. It is a standstill pending a process that may include investigation of the circumstances, including the steps that might reasonably be taken having regard to the nature of the applicant's disability. 20 For those reasons, if the complaint meets the statutory requirement of being reasonably arguable then, in most instances, it would be unlikely that an interim injunction would be refused on the basis of some assessment that the claim of unlawful discrimination was insufficiently strong to justify the exercise of the statutory power. To do so would be to impose a requirement that is greater than the express statutory provision as to what is needed in order to invoke the Commission's processes and would work against the detailed provisions of the legislation. Nevertheless, adopting the lens of the particular purpose to be served, there may be instances where the consequences of granting the interim injunction are so significant that it is appropriate to bring to account an assessment of the strength of the claim in deciding whether to grant relief. In the present case that aspect assumes possible significance because of the claim by FQM that there is a risk of harm to other employees because of alleged uncertainties as to whether the appellant is likely to be impaired even if he takes his medication in the manner that he proposes.

The object to be served by the proposed interim injunction 21 As has been noted, an interim injunction may be granted under s 46PP to maintain the status quo as it existed immediately before the complaint was lodged or to maintain the rights of any complainant, respondent or affected person. 22 For Mr Millar, it was accepted that the primary relief that he sought (reinstatement to return to work on full pay) would go beyond maintaining the status quo immediately before the complaint was lodged. At that time, he had been on leave without pay. Therefore, the alternative relief was sought on the basis that it would maintain the relevant status quo and the primary relief was sought on the basis that it would maintain Mr Millar's rights. Those rights were expressed to be the statutory rights conferred in respect of alleged unlawful discrimination by standing Mr Millar down with pay for a period, then standing him down without pay and then terminating his employment because he could not comply with FQM's drug and alcohol policy. It was said that the zero-tolerance approach adopted by FQM and given effect by the policy was an approach that disadvantaged people with Crohn's disease because the requirement limited the treatment options they could adopt and interfered with their ability to participate in the workforce. It was claimed that adjustments could and should be made to accommodate the Mr Millar's disability. 23 Given the existence of the object in subpara (a), the power to grant an interim injunction 'to maintain the rights of any complainant, respondent or affected person' may be seen to be directed to an instance where some form of relief is sought that would go beyond preserving or reinstating the status quo as it existed immediately before the complaint was lodged. It contemplates the making of an order that would disturb that status quo by creating through the grant of an interim injunction a state of affairs that was different to the status quo as it existed immediately before the complaint was lodged. In such a case, the statutory power extends to what may be done to maintain 'the rights' of any of those involved. Significantly, the reference is not to 'human rights' (a term used throughout the legislation). Nor is there a reference to giving effect to or recognising the validity of the nature of the claim that there has been unlawful discrimination. The use of terminology that includes the rights of the respondent suggests that it is not be the 'right' of the applicant to bring a statutory claim of unlawful discrimination (and seek statutory relief on that basis) that may be 'maintained' by an interim injunction. As has been noted, the statutory right to bring a legal claim of unlawful discrimination arises only once the complaint to the Commission has been terminated. Then, the Court may grant an interim injunction pending the determination of those proceedings; s 46PO(6). Finally, the use of the expression 'maintain the rights' suggests that the object is concerned with rights that exist rather than a statutory entitlement to seek future relief on the basis that there has been unlawful discrimination. 24 For the above reasons, it seems to me that the second object in s 46PP(1) is concerned with maintaining those rights of the claimant that are said to have been interfered with by alleged unlawful discrimination or those rights of the respondent which are said to be able to be lawfully asserted or exercised despite the legislative provisions concerning unlawful discrimination (rather than the prospective statutory relief that may be granted under s 46PO(4)). Rights of that character may be said to be held by the complainant, the respondent or an affected person (being a person on whose behalf a complaint has been lodged). They exist (or would exist but for the conduct said to amount to unlawful discrimination) and do not depend upon the future grant of relief. It is for that reason that the word 'maintain' is used. Further, it would be consistent with the concern to protect the status quo and the evident purpose of supporting the process to be conducted by the Commission for any ongoing interference with such rights to be stopped for the duration of that process. 25 Having expressed those views, I note that in Wilson v Britten-Jones [2019] FCA 747 at [42], Nicholas J expressed the view that it was clear that the rights referred to in s 46PP(1)(b) are rights which ultimately may be recognised or enforced by orders made by the Court under s 46PO(4). However, for reasons I have given, and with great respect for the contrary view, the power to grant an interim injunction conferred by the terms of s 46PP(1)(b) requires the identification of a right recognised by Australian law that has its source outside the relief that might be granted if the statutory right to bring a claim for unlawful discrimination was pursued and upheld. It is directed towards a case where a party claims that the enjoyment of such a right should be maintained during the course of the process to be conducted by the Commission. It is dealing with preserving, during the Commission process, alleged rights otherwise recognised by Australian law even though the grant of an interim injunction to maintain those rights may alter the status quo. It is concerned with whether it is appropriate for those rights to be exercised in a manner that will alter the status quo pending a process which may ultimately result in an application for statutory relief in the exercise of judicial power. 26 The distinction is perhaps a fine one. It will still be relevant to consider the prospect of future relief. However, it is not the 'rights' that may arise from the grant of statutory relief that are to be 'maintained'. Rather, it is other rights recognised by Australian law. The question is whether it is appropriate for them to be maintained pending the Commission's process. 27 In the present case, the relevant right to be maintained was Mr Millar's legal status as an employee. It was the protection of the enjoyment of that right (which itself did not depend upon demonstrating unlawful discrimination) which was said to be interfered with by conduct that amounted to unlawful discrimination. Of course, there was also a countervailing right asserted by FQM, namely that it had validly exercised its right to terminate Mr Millar's status as an employee. 28 Accordingly, the question raised by the primary basis of the application was whether it was appropriate for an interim injunction to be granted that would maintain Mr Millar's asserted right to employment.

The relevant circumstances 29 The submissions by the parties proceeded on the basis that Mr Millar's Crohn's disease was a disability. Also, as has been noted, it was accepted that Mr Millar could not pass the urine test to which he was required to submit by FQM's alcohol and drug policy. 30 Although FQM presented written submissions in which it claimed that s 47(2) of the Disability Discrimination Act applied, that submission was not pressed at the hearing on the basis that the laws relied upon were not 'prescribed laws'. 31 Much of the case for FQM sought to justify the terms of its alcohol and drug policy. It maintained that there was no accepted test to determine whether a person was impaired and therefore it was reasonable for its policy of testing to be applied to all employees without exception. It can be seen that those submissions were directed to the substantive issue between the parties as to whether adjustments could and should have been made to the policy to accommodate the circumstances of a person such as Mr Millar. For reasons that have been given, the question was whether an interim injunction in the terms sought would protect and facilitate the statutory process that the Commission was required to undertake in an endeavour to achieve a conciliated outcome. 32 In the present case, having regard to the purpose of the statutory power to grant an interim injunction during the currency of the complaint to the Commission, it is significant to note the formally stated position communicated to the Commission in respect of a conciliation conference that has been scheduled for 10 November 2022. Lawyers acting for FQM have communicated the following matters to the Commission in emphatic terms: (1) FQM will not attend the conference; (2) it is FQM's position that Mr Millar was not subject to unlawful discrimination during his employment due to his disability or otherwise; (3) the only reason for the termination of Mr Millar's employment was his ongoing unwillingness to comply with FQM's drug and alcohol policy; (4) the fact that medication is medically prescribed does not change the potential impact it has on impairment of an employee's capacity to perform their role safely; (5) an independent medical examination found that if Mr Millar continues to take medicalised marijuana and THC daily as prescribed, there is a real risk that Mr Millar will present to work to perform his role, which includes safety critical work, in an impaired state; (6) there is a long standing practice in the mining industry regarding the use of and testing for a wide range of drugs of impairment, regardless of whether or not those drugs are prescribed by a medical practitioner; (7) an independent medical assessment undertaken at the cost of FQM highlighted that there is no current clinical data supporting a prescription of medicalised marijuana and THC for sufferers of inflammatory bowel disease; (8) Mr Millar did not provide any evidence to FQM from his treating specialist to support his use of medicalised marijuana and THC as a way to manage his disability, despite being provided with ample opportunity and time to do so and FQM requesting this information; and (9) Mr Millar failed to acknowledge or understand that if FQM allowed him to continue working in a safety critical role at the mine site while he takes medicalised marijuana and THC daily, his drug use would create a serious safety risk not only for himself, but also other workers; and (10) Mr Miller elected not to consider whether there were alternative management or treatment options for his disability that did not involve taking a drug of impairment daily and would ensure that he was not impaired or limited in performing his role despite FQM supporting him and providing him with opportunity and ample time to do so. 33 Four matters may be observed. 34 Firstly, as to whether Mr Millar provided evidence from his specialist, on 21 September 2022 Mr Millar's employment was terminated. A record of that meeting created by officers of FQM was produced. Based on that record, at the meeting Mr Millar was told that information had not been received from his gastroenterologist to support his use of medication. He said that he could provide the information, that it was not easy to obtain and that he had an appointment in October. 35 There appears to be a dispute as to whether Mr Millar was asked to obtain that information at an early stage. I note that a medical examiner who was asked to provide a report to FQM did write directly to the gastroenterologist but there is no evidence of a response. Mr Millar has deposed that his gastroenterologist told him at an appointment in August 2022 that his new medication may prove to be helpful and that he had other patients who had experienced success with similar treatment. 36 Secondly, the letter from FQM does not engage with the question whether there is any basis to conclude that a person who takes the precise doses of medication that have been prescribed and does so at least eight hours before presenting for work, may be impaired in any way. The only evidence as to whether he would be impaired six to eight hours later from the quantities of medication that he has been prescribed is that he 'would most likely not be impaired'. 37 There is a consensus that THC could be detected in his urine many days after the last dose. There is also a consensus that THC could be detected in a person's urine well after the period when the person would be impaired by the drug. Therefore, there seems to have been little attention directed to the question whether there is any real risk of impairment of Mr Millar eight hours after taking the medication he has been prescribed. 38 Thirdly, FQM did not produce any evidence to support the statements to the effect that Mr Millar lacked concern or insight as to the importance of ensuring that he did not work while being impaired by THC. 39 Fourthly, the evidence of Mr Millar was to the effect that he had tried other treatment options and he explained why he wished to continue to take the medication to manage the symptoms of Crohn's disease. 40 In short, this is not a case where it might be said that no purpose would be served by participation in the process to be conducted by the Commission. I do not accept the proposition which underpinned much of the submissions for FQM that the nature of the issue was such that, in effect, the only way to ensure there was no risk to safety was to require Mr Millar to refrain from taking his medication as a condition of his employment. Nor do I accept that the approach outlined in the lawyer's letter is justified in all the circumstances. 41 As has been indicated, it was accepted that restoration of the relevant status quo would see Mr Millar reinstated on leave without pay. It was said that this would result in Mr Millar's right to make a general protections claim under the provisions of the Fair Work Act 2009 (Cth) also being reinstated (because the time for doing so had expired without the bringing of a claim). It was also said that his entitlements to leave and other benefits based upon continuity of service would continue running. However, these are precisely the types of outcomes that re-establish what McKerracher J described as the level playing field. It was not suggested that the financial consequences for FQM of reinstating these claims in respect of a single employee would be unreasonable having regard to its financial circumstances. On the other hand, the effect upon an employee of having to undertake the Commission's process without these aspects of the status quo being preserved was likely to place Mr Millar at a considerable disadvantage in the course of the conciliation and other processes during which time he could not bring his claim in this Court. 42 In all the circumstances, and for the above reasons, I was satisfied that an interim injunction should be ordered to re-establish the status quo. 43 The real issue was whether the application for primary relief should be upheld. 44 For the following reasons, I declined to make that order: (1) a considerable time had elapsed during which Mr Millar had been given an opportunity to obtain material to support the use of his medication; (2) the only material obtained by him was a general statement to the effect that six to eight hours after taking the medication he 'would most likely not be impaired'; (3) on the available evidence, if Mr Millar is impaired at work then there is a real safety risk to him and other employees; (4) on the available evidence, it could not be said that the risk was negligible; (5) a precautionary approach should be adopted in relation to matters of safety; (6) there was no material to support the ability of a person to self-report whether they were impaired; and (7) there was no evidence as to the rate at which the active effect of the amounts of THC in the medication being taken by Mr Millar might be expected to dissipate. 45 I note that I was not persuaded by submissions to the effect that the available evidence did not support a conclusion that the medication treated Crohn's disease. The report produced by the medical examiner engaged by FQM referred to the 'most up to date research article' that he could find, being a study of 838 patients using medicinal or recreational cannabis to treat inflammatory bowel disease (a term that refers to Crohn's disease and ulcerative colitis). He described the study as reporting that 92.7% endorsed cannabis as effective in symptom management. There is no suggestion that unlawful discrimination is confined to conduct related to curative treatment or to treatment of symptoms that is supported by an established body of literature. 46 I also observe that these matters indicate that there may be room for further investigation as to whether conclusions can be reached as to whether a person such as Mr Millar would be impaired in undertaking his work as a mechanical fitter more than eight hours after taking his prescribed medication. 47 Having regard for the potential for a change in circumstances or the availability of further evidence, I preserved liberty to apply to vary or discharge the interim injunction. I also made provision for any application as to the costs of the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

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