4.2 Adverse action claims
62 In relation to the first category of alleged contravention of Part 3-1 of the FW Act, "Adverse action by injuring the applicants in their employment", the respondents submit that [13] and [15] contain an impermissible melding of the essential elements of s 340 being the allegations of adverse action, the reason why it is alleged that the decision maker engaged in the adverse action and the identification of the specific adverse action alleged in relation to each applicant.
63 I accept that submission. Taking [13] as an example, the allegation is that the first respondent threatened to dismiss (etc) the applicants "because they had a workplace right not to comply with the vaccine direction". That pleading is embarrassing, because nowhere is there a pleading of (a) the state or mind of the relevant decision maker; (b) the decision maker who is alleged to have the state of mind by reference to details in the letter; or (c) which of the earlier workplace rights pleaded in [6]-[11] is said to have been the subject of the adverse action. This aspect of the case must be re-pleaded.
64 In this regard I note that during oral argument, Mr S Prince SC, senior counsel for the applicants, properly conceded that it would be better if these paragraphs were re-pleaded to explicitly allege the exercise by the applicants of a workplace right. For this reason too [13] and [15] must be re-pleaded.
65 I have noted that [14] contains a pleading that Qantas imposed a policy on Jetstar requiring implementation of a COVID-19 policy. However, no pleading is advanced to identify how it is that Qantas is liable for the conduct of Jetstar. The applicants submit that the requisite elements of Qantas' liability may be gleaned from [5] of the FASC. However, that is not sufficient. Absent a clear pleading of how action of Qantas is alleged to lead to culpability on the part of Jetstar, [14] must be struck out with liberty to re-plead.
66 In relation to the second category, "Adverse action by dismissal of the applicants", I note that [16] and [17] respectively plead the workplace rights claimed by the applicants against Virgin and Jetstar. This pleading is contingent upon the proper pleading of the workplace rights previously mentioned. One consequence of the defects that I have identified in those paragraphs is that [16] and [17] will also have to be re-pleaded.
67 In relation to the third category, adverse action by discrimination, the respondents contend that [18] and [19] ought to be summarily dismissed with no liberty to re-plead because those paragraphs depend on an allegation that the respondents by their servants or agents "imputed to the applicants" a disability within the meaning of subsection (k) of the definition of disability under the Disability Discrimination Act in s 4. They contend, in the alternative, that the disability claim paragraphs should be struck out because no material facts have been pleaded in support of the allegedly imputed mental disability and that the third basis pleaded is indistinguishable from an allegation that vaccination status is itself a disability.
68 In order to address this argument it is necessary to refer to the legislative scheme in which this allegation appears.
69 Section 351(1) of the FW Act relevantly provides that "An employer must not take adverse action against a person who is an employee … of the employer because of the person's … physical or mental disability …".
70 Section 351(2) relevantly provides that (1) does not apply to action that is "(a) not unlawful under any anti-discrimination law in force in the place where the action is taken". The relevant antidiscrimination laws applicable to s 351 are identified in s 351(3) and include the Disability Discrimination Act.
71 The reversal of onus under s 361 applies for actions based on s 351. A pleaded basis under s 351 must be shown to be a or the operative cause of the discrimination; s 360.
72 It would appear, as a matter of the plain words of s 351(1), that the physical or mental disability must be possessed by the person alleging discrimination. This arises from the natural meaning of the words "the person' s … physical or mental disability".
73 In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547, O'Callaghan and Thawley JJ considered the statutory scheme. Their Honours noted that there is no definition in the FW Act of "disability" but that the word is defined in the Disability Discrimination Act in s 4 as follows:
disability, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
74 It will be noted that this definition includes in (k) a disability that is "imputed to a person". As their Honours note at [113], that definition does not apply to the FW Act, but is relevant context because it is clear that the intention was for s 351(1) and the Disability Discrimination Act to operate harmoniously. Significantly, by s 351(2), any action that is not unlawful under the Disability Discrimination Act will not be unlawful under s 351(1). However, the converse does not apply so as to mean that the words "physical or mental disability" in s 351(1) must be taken to include a disability that is imputed to a person. Indeed there are good reasons why it would not be so taken.
75 In Bahonko v Sterjov [2007] FCA 1244; 167 IR 43, Jessup J considered the application of s 170CK(2)(f) of the Work Relations Act 1996 (Cth) (WR Act) which relevantly provided that an employer must not terminate an employee's employment for a number of listed reasons included "race, colour, sex, sexual preference, age, physical or mental disability" and others. In the proceedings, the applicant's allegations included a claim that she suffered an imputed physical or mental disability within s 170CK(2)(f) of that the WR Act because, although she did not have that disability in fact (and there was no evidence that she did), the relevant decision-makers Ms McEwan and Mr Sterjov assumed that she had it and imputed it to her (at [94], [95]).
76 Jessup J rejected the applicant's claims saying at [103]:
Neither is there any evidence of any physical or mental disability which the applicant had while employed by La Kosta. It is not, in my view, sufficient that she allege an "imputed" disability. The provisions of s 170CK(2)(f) are designed to protect employees who in fact fall within the categories referred to - those who in fact have family responsibilities or who in fact are pregnant, for example. That is consistent with the received construction of the reverse onus provision which finds expression in s 170CQ, as discussed above … Indeed, as I have said above, it was the applicant's case that she did not in fact have a disability at all. For this reason, as their counsel made clear in his final address, the respondents did not give evidence that the applicant's disability was not the reason for the termination of her employment. Neither need they have. It would have been embarrassing and invidious to have expected them to discharge the reverse onus by reference to a fact situation which was not referred to in s 170CK(2)(f) and which was not part of the applicant's factual case. Nonetheless, I would, should it be necessary, find that no perception of a disability of any kind on the part of the applicant was a reason why she was dismissed by La Kosta…
(Emphasis added.)
77 The respondents submit that the characteristics of a person identified in s 351(1) of the FW Act must be established as a matter of objective fact. They submit that a person's unvaccinated status cannot of itself be a disability, citing the reasoning of Judge Cameron in Wolfraad v Serco Australia [2022] FedCFamC2G 1063 at [55] and that an imputed disability does not fall within the term "physical or mental disability" in s 351 of the FW Act.
78 The applicants submit that s 351(1) is designed to prevent conduct which is directed to employees "believed" to fall within the categories identified such that once it is established as an objective fact that the claimant is an employee, it is sufficient for the applicant to allege that the employer believed that the employee had one of the characteristics in s 351(1) (being race, colour, sexual orientation, age, physical or mental disability, pregnancy etc) for the reverse onus to apply such that the employer must rebut that allegation. They submit that where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual, citing Western Union at [116]-[117]. This, they contend, supports their construction. They submit that the respondents have not established that their argument has no reasonable prospect of success, that Bahonko may be distinguished because it concerns the WR Act and not the FW Act, and that Wolfraad does not assist the Court because the part of the decision upon which the respondents rely turned on the applicant's pleaded characterisation of the disability.
79 In my view part of the answer to the applicants' submissions may be found in Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [119], where Jessup J (Allsop CJ and White J agreeing) made the following observations:
… that involved, with respect to counsel, a very superficial reading of the provision which took account neither of the long history of corresponding provisions in previous legislation nor of the many first-instance judgments of this court in which it has been treated as uncontroversial that the party making an allegation that adverse action was taken "because" of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161]-[162]; Bahonko v Sterjov (2007) 167 IR 43, 75-77 [96]-[101]; Lever v Australian Nuclear Science and Technology Organisation [2007] FCA 1251 at [27]; Police Federation of Australia v Nixon (2008) 168 FCR 340, 360-361 [68]; Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306, 321-322 [49]-[50]; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22, 27-28 [10]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, 578-579 [329]-[331]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59]; Stephens v Australian Postal Corporation [2014] FCA 732 at [13]. I consider that we would be diverting the law from its proper course were we to accept a submission along the lines of that apparently contained in the appellant's supplementary outline, even if expressed as a concession.
80 The objective fact that must be established cannot sensibly be said to be "imputed knowledge" on the part of the decision maker, but rather the objective fact of whether or not, here, the applicants have a physical or mental disability that is the or a cause of the adverse action. Having regard to these matters, in my view the causes of action pleaded in [18]-[20] of the FASC must be summarily dismissed in accordance with s 31A of the FCA Act.
81 In relation to the fourth category, adverse action by coercion, the respondents advance three primary submissions. The first is that the case set out at [21]-[22] and [24]-[25], concerning the action said to have been coercive of Virgin and Jetstar respectively in breach of s 343 of the FW Act, must be re-pleaded because it again relies on the inadequately pleaded workplace rights earlier in the FASC. I agree with that submission, which depends for its success on the findings I have made above in relation to the pleading of the workplace rights.
82 I also agree with the second submission advanced by the respondents that, even if the workplace rights had been adequately pleaded, the content and detail of the pleading at [21]-[22] and [24]-[25] is manifestly inadequate. The applicants have failed to plead the elements required to maintain a contravention of s 343 of the FW Act by failing: (a) to identify the action organised, taken or threatened by Virgin or Jetstar; (b) to allege the relevant respondents to have a "particular intent" being an intent to negate choice, and a "particular reason" or purpose (being one or more of those set out in s 343(1)(a) or (b)); and (c) to allege the conduct is unlawful, illegitimate or unconscionable. In this regard, the decision of the Full Court in Hall at [24]-[26] (Tracey, Reeves, Bromwich JJ) is instructive as to key elements required for such a claim. I accept that the pleading in its current form does not adequately meet those requirements.
83 Thirdly, the respondents contend that the coercion allegations should be struck out without liberty to re-plead because the core allegations made in [22] and [25] are that the respondents' conduct in requiring the applicants to produce vaccination evidence, to stand down the applicants in response to their requests for information pending dismissal and to dismiss the applicants from their employment are contrary to intermediate appellate court authority, citing Kassam v Hazard; Henry v Hazzard [2021] NSWCA 299; 396 ALR 302 at [95]-[99] (Bell P, Leeming and Meagher JJA agreeing). They submit that this proposition has been upheld on numerous occasions in the Fair Work Commission, including by Full Benches, citing, amongst others, Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd t/as BHP Billiton Mitsubishi Alliance/BMA [2022] FWC 81; 311 IR 304 at [170]. The applicants contend that the factual circumstances in Kassam were quite different, Kassam being concerned with public health orders that did not involve a vaccine mandate and contained no sanction for non-compliance.
84 It is apparent that the applicants intend in the proceedings to attempt distinguish Kassam and argue that decisions of the Fair Work Commission are incorrect or inapplicable. No single or Full Court authority in this Court addresses the point. In such circumstances, I do not consider that the issue has sufficiently poor prospects to determine that it cannot proceed to trial. However, as I have noted, the pleading is inadequate and for that reason must be struck out, with liberty to re-plead.
85 Having said that, in 22 the respondents submit that the applicants make a misconceived reference in FASC to s 23 of the Australian Immunisation Register Act 2015 (Cth) with the consequence that this paragraph must be struck out without liberty to re-plead. Section 23 makes it an offence for a person to obtain protected information and to disclose or make a record of that information unless authorised by s 22. Section 26(1)(c) provides that s 23 does not apply if the making of the record or disclosure or use of the protected information is in accordance with the express or implied consent of the person to whom in the information relates. The respondents contend that s 23 has no work to do in respect of the applicants because they declined to provide any evidence relating to their vaccination status.
86 In my view, this contention raises a factual matter that, if established as a matter of fact, would demonstrate that the pleading at 22 is unsustainable. I was directed to no evidence on the subject for the purpose of the present application. However, the applicants must now re-plead. If the contention advanced by the respondents is correct, then this aspect of the pleaded case is unsustainable, and the applicants will no doubt reconsider their position.