The Applicant's Claim that the Respondent has Contravened s 351 of the FW Act
36 The respondent submits that the applicant's claim that it has contravened s 351 of the FW Act should not be allowed because it cannot succeed. The applicant's pleading of a contravention of s 351 is as follows:
24. The Employment Contract expressly provided that the Respondent would not discriminate against its employees on a variety of grounds, which would include medical conditions.
25. Pursuant to the Fair Work Act (and, by reference, the Equal Opportunity Act), the Respondent was not permitted to discriminate against its employees on the basis of any medical condition or disability.
26. Pursuant to S.351 of the Fair Work Act, the Respondent was not permitted to take any adverse action against the Applicant as a result of any medical condition.
26A. The Respondent was aware that the Applicant suffered from the Disability because:
a. The Applicant told Andrew that he suffered a medical condition;
b. The Applicant told Clare Kelly that he suffered a medical condition;
c. The Applicant provided a medical certificate from his doctor;
26B. It was not necessary, as a matter of law, for the Respondent to be aware of the full nature of the Disability; it is sufficient that it was aware on 1 February 2021 (through its employees or agents) that the Applicant suffered a Disability.
26C. By making the Mask Mandate and Medical Evidence Mandate, in circumstances where:
a. They exceeded the requirements of the Face Covering Directions; and
b. They required employees to give up their right to medical privacy without reasonable or legitimate operational need; and
c. They automatically treated employees who suffered from medical conditions making it unsuitable to wear a face mask differently to other employees,
the Respondent discriminated against any employee who could not safely wear a face mask for a medical reason, including the Applicant (the Discriminatory Conduct).
26D. By making the Mask Direction, Medical Evidence Direction and Exemption Direction, in circumstances where:
a. They exceeded the requirements of the Face Covering Directions; and
b. They required the Applicant to give up his right to medical privacy without reasonable or legitimate operational need; and
c. They treated him differently from other employees solely because of his Disability,
the Respondent further discriminated against the Applicant personally (the Further Discriminatory Conduct).
26E. The Respondent stood the Applicant down from work and then dismissed him from his employment in reliance on his purported failure to comply with the Mask Mandate, Mask Direction, Medical Disclosure Mandate, Medical Disclosure Direction and Exemption Direction.
26F. Where the Respondent has taken the aforesaid action in reliance on the Discriminatory Conduct and Further Discriminatory Conduct, the taking of those actions is, in itself, discriminatory.
26G. For the reasons pleaded in paragraphs 24 to 26F herein, by:
a. Standing the Applicant down from his employment from 1 to 5 February 2021 without pay; and
b. Dismissing him from his employment on 8 February 2021,
the Respondent has taken adverse action against him in contravention of S.351 of the Fair Work Act.
37 Paragraph 26G identifies two forms of adverse action, being the standing down of the applicant for five days without pay (1 February 2021 to 5 February 2021) and the dismissal of the applicant from his employment on 8 February 2021. The latter is expressly identified in s 342(1) Item 1(a) as adverse action and the former is certainly capable of being characterised as adverse action (s 342(1) Item 1(c)).
38 Although the applicant's pleading often refers to the applicant's "medical condition", it is clear from the pleadings read as a whole that the physical or mental disability within s 351 which he alleges is anxiety when the applicant tries to wear a face mask, difficulty breathing and feeling faint (para 6.b.), anxiety or breathing difficulties from or whilst wearing a face mask (para 6A.b.), or anxiety progressing to severe difficulties breathing (para 7A.).
39 Section 351(1) prohibits an employer from taking adverse action against (relevantly) an employee because of the employee's physical or mental disability. That requires a causative link between the adverse action and the employee's physical or mental disability.
40 The use of the word "because" in s 351(1) means that the key question is "why was the adverse action taken?" (RailPro Services Pty Ltd v Flavel [2015] FCA 504 (RailPro) at [81] per Perry J and see the authorities referred to therein).
41 In the case of an existing employment relationship, s 342 identifies four forms of adverse action. The fourth item, 1(d), is that the employer "discriminates between the employee and other employees of the employer". Putting that particular form of adverse action to one side for present purposes, the other forms of adverse action do not require that a comparison be undertaken between the treatment of the applicant employee and any other employee(s). In RailPro, Perry J said (at [112]):
… However, the question under subs (1) is simply "why did RailPro dismiss Mr Flavel?": see at [81] above. Thus, if the dismissal was "because of" Mr Flavel's mental disability, s 351(1) is breached unless the dismissal falls with one of the "carve-outs" in s 351(2)(a), (b) or (c). Save therefore where the adverse action is that defined in column 2, para (d) of item 1 of the table in s 342(1) (i.e. that the employer "discriminates between the employee and other employees of the employer"), s 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s): Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 at [35] (Gray and Bromberg JJ (overruled on appeal but not on this point)); Stephens v Australian Postal Corp [2011] FMCA 448; (2011) 207 IR 405 (Stephens v APC) at 439 [83]-[84] (Smith FM). …
42 It follows that insofar as the applicant's case is that the adverse action is the standing down without pay and dismissal, the key question is "why did the respondent stand the applicant down and dismiss him?".
43 The respondent submits that there can be only one answer to that question and that is that the applicant was stood down without pay and dismissed because he failed to comply with the Mask Mandate and the associated instructions or directions. That, the respondent submits, is not only clear from the letter of dismissal, but is the case the applicant himself appears to assert in his pleading. In para 10 of the PAOA, he alleges the following:
10. On 8 February 2021, the Respondent indicated that it terminated the Applicant's employment on the following grounds:
a. That he declined to follow the direction to wear a face mask at work (Mask Direction);
b. That he declined to disclose details of the medical condition that prevented him from wearing a face mask, despite the Respondent's request (Medical Evidence Direction);
c. That he declined to provide the source of information concerning his privacy rights, being the Snippet, despite the Respondent's request (Snippet Direction);
d. That he declined to provide evidence that he was exempt from wearing a face mask despite the Respondent's request (Exemption Direction); and
e. That he had thereby engaged in serious and wilful misconduct in the course of his employment at the Place of Employment.
44 The respondent submits that that being the reason or reasons for the action it took, it could not be because of the applicant's "physical or mental disability" and the claim under s 351 of the FW Act must fail.
45 That submission undoubtedly has force, but the issue at this stage is whether the applicant's case on causation has a reasonable prospect of success. I consider that it does because of the (arguable) close link between the applicant's physical or mental disability and his failure to comply with the Mask Mandate and the associated instructions or directions.
46 There is a further reason for not acceding to the respondent's submission that the pleading under s 351 should not be allowed. A plea of a contravention of s 351 will, in any event, remain in the PAOA insofar as the adverse action relied on is the respondent discriminating between the applicant and other employees of the employer (s 342(1) Item 1(d)).
47 In my opinion, there is a pleaded case of discrimination in the applicant's pleading. Although it is not entirely clear to what extent para 26D is merely repetitive of para 26C, there is a plea of discrimination in each paragraph amounting to, I infer, adverse action within s 351. In para 26C.c., the applicant pleads that by the Mask Mandate and the associated instructions or directions, the respondent automatically treated employees who could not safely wear a face mask for a medical reason, including the applicant, differently from other employees and, in para 26D.c., the applicant pleads that the respondent treated the applicant differently from other employees solely because of his disability. In para 26F, the applicant alleges that the standing down and dismissal was taken on the basis of the discriminatory conduct, and "the taking of those actions is, in itself, discriminatory".
48 The respondent submits that there is no proper plea of discrimination because there is no plea of a "comparator", that is to say, the treatment of the hypothetical person in the same position as the applicant but without the disability. I reject that submission. In my opinion, the plea in para 26C.c. is sufficient for that purpose. The comparison is between employees who suffer from medical conditions making it unsuitable to wear a face mask and employees who do not suffer medical conditions making it unsuitable to wear a face mask. The respondent submits that the comparator is a person who is unwilling to wear a face mask, although the person does not have a medical condition. The respondent submits that it would treat such a person no differently from the applicant and, therefore, the discrimination case will fail and that the applicant seems to acknowledge this in his own pleading (see para 10B.f.viii.). With respect to this submission, it is sufficient for me to say that it is not obvious to me that the relevant comparator must be a person who is unwilling to wear a face mask. In my opinion, this is an issue for trial.
49 Finally, the respondent submits that the applicant's claim under s 351 of the FW Act must fail because it is not in dispute between the parties that at the time of the standing down and dismissal of the applicant, the respondent was not aware of the applicant's physical or mental disability. There cannot be adverse action, including discrimination, because of a physical or mental disability if the decision-maker is, at the relevant time, unaware of the disability. The applicant asserted to the respondent that he was entitled to a medical exemption because of a medical condition, but he refused to disclose the nature of that medical condition. At a general level, the respondent submits that it cannot be found to have acted in a particular way because of a physical or mental disability in circumstances in which it did not know of the disability. In support of this submission, the respondent relied on certain observations of Perry J in RailPro. In that case, her Honour said that knowledge that an applicant had an "attack of nerves" did not amount to knowledge that an applicant had a physical or psychological condition that constituted a physical or mental disability within s 351 of the FW Act. Her Honour said (at [126]-[128]):
126 … In this case, in my view the evidence went no higher than to suggest that the decision-makers were aware that Mr Flavel had had an "attack of nerves".
127 Added to this, it was found by the primary judge or established by unchallenged evidence that:
a) the statement by Mr Flavel that he felt violently ill when told he could not use his notes was the first manifestation of the disability;
b) no other symptoms were communicated by Mr Flavel to RailPro;
c) Mr Flavel elected to sit with the driver after refusing to undertake the assessment rather than take up his offer of retiring to the crew van;
d) before feeling violently ill at the assessment, Mr Flavel made no claims in the six weeks following the accident to have suffered any ill effects to his employer, made no claims for sick leave or workers compensation, and did not take any days off;
e) he also denied suffering any ill effects to Mr McNaught and Mr Yates, and had refused any counselling;
f) nor, despite keeping a watchful eye on him as well as Mr Fischer, were any changes in his behaviour observed by Mr Yates or Mr McNaught.
128 Despite these matters, the primary judge found that the three decision-makers were aware that Mr Flavel had a physical or psychological condition, that resulted in him becoming violently ill when required to drive a train (Flavel (No. 1) at [81]). I consider that that finding was glaringly improbable given the matters to which I have referred and do not consider that the contextual matters to which the primary judge had regard were a sufficient foundation for the finding. Rather the findings and uncontested evidence were such that his Honour should have found that the statutory presumption in s 361 of the FW Act had been rebutted, as, in the absence of knowledge of a disability and, more particularly that Mr Flavel's behaviour at his assessment was a symptom of a disability, the decision-makers could not be found to have dismissed Mr Flavel because of his disability.
50 In my opinion, the circumstances in this case are different from those in RailPro. The applicant asserted that he was entitled to a medical exemption because of a medical condition. It is an available inference that reasonably understood, he was asserting that because of a medical condition, wearing a mask was unsuitable in his case. In my opinion, the proposition has a sufficient prospect of success to warrant a grant of leave to amend and whether it will succeed or fail is a matter for trial.
51 I reject the respondent's submission that the applicant's claim under s 351 of the FW Act is so lacking in merit (or lacks a reasonable prospect of success) that an application for leave to amend to advance it should be refused.