Adverse action is action that is unlawful; if it is taken for a particular reason or reasons.

The adverse action provisions in the Fair Work Act 2009 (FW Act), apply to a person who is an employee and a person who is a prospective employee. Under the FW Act, an employer must not take adverse action (amongst other things) against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

 However, an employer has not discriminated (or taken adverse action) against an employee, or a prospective employee, where such “action is not unlawful under any anti-discrimination law… or… (where such action is)… taken because of the inherent requirements of the particular position concerned”.

EMPLOYERS SHOULD ENSURE THAT THEIR EMPLOYMENT PRACTICES ARE FREE FROM ANY DISCRIMINATORY FACTOR

Background

Nicholas Shizas (Shizas) was employed by the Australian Tax Office. Shizas made multiple applications to the Australian Federal Police (AFP). His first two applications were unsuccessful; firstly because he did not hold an unrestricted driver’s licence and secondly, because he failed the aptitude test. The decision in question deals with his third application to the AFP and their refusal to employ him.

Decision

“(Shizas)… failed to secure employment…because, following a diagnosis of ankylosing spondylitis (described in the pleading as “a form of arthritis that causes inflammation in the spine and other joints”), a decision was made that he did not meet the AFP’s medical clearance requirements. He tried in vain to have that decision overturned.”

“(Section)… 351 relevantly prohibits an employer from refusing to employ a prospective employee because of that person’s physical disability (here, ankylosing spondylitis), unless the employer does so because of the inherent requirements of the particular position concerned.”

“The purpose of… (Section)… 351(1) was to extend the scope of the protection against discriminatory conduct in respect of termination of employment (previously provided by… (Section)… 659(2)(f) of the Workplace Relations Act 1996 (C’th) and now covered by…(Section)… 772 in the FW Act) to anything answering the definition of “adverse action””.

 “Section 351 falls within Part 3 – 1 of the FW Act. For the purposes of that Part, a person takes action for a particular reason if the reasons for the action include that reason, so long as the reason was “a substantial and operative reason”… Moreover, where, as here, it is alleged in an application relating to a contravention of Pt 3 – 1 that a person took action for a particular reason and taking that action for that reason would contravene the Part, it is presumed that the action was taken for that reason unless the person proves otherwise.

To displace the presumption created by… (Section)… 361 in light of the effect of… (Section)… 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact.”

“[t]he crucial issue in [a general protections] application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The Court said nothing about who bears the onus of proving, or negating, the existence of that causal relationship. In the following paragraph, the Court made clear that it is the employer’s burden to disprove the causal connection.

That said, it is well established that the applicant must prove “the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”; the onus does not shift merely upon the making of an allegation that the circumstance arises:.. Here, the circumstance which is said to be the reason for the taking of the adverse action is the applicant’s disability. This was not a case where there was only an allegation about the existence of the relevant circumstance. The relevant circumstance was proved on the agreed facts.

The burden is on the… (AFP)… to prove that they did not refuse to employ Shizas because of his disability. The focus of this inquiry must be on the reasons of the decision-maker but, in determining whether the burden has been discharged, it is necessary to balance the reliability and weight of the evidence adduced by both parties and the overall facts and circumstances of the case.”

“In summary, I find that:

(1) at the time both decisions were made, the… (AFP)… was an employer within the meaning of… (Section)… 351(1) of the FW Act and Shizas a prospective employee;

(2) by refusing to employ Shizas on both occasions the…(AFP)… took adverse action against him because he had a disability, namely, ankylosing spondylitis, contrary to… (Section)… 351(1); but

(3) that the second decision was also made because of the inherent requirements of the position for which he had applied, being the particular position concerned for the purposes of .. (Section)… 351(2)(b), and, accordingly on this occasion, the… (AFP)… did not contravene … (Section)… 351(1).”

“It follows that, beyond declaring the first decision to have been made in contravention of… (Section)… 351, no further relief should be granted and the application should otherwise be dismissed.”

Summary: lessons to be learned

As is the case with all decisions, the decision turns on the facts peculiar to that particular case.

The lesson to be learned from this case is that employers should ensure that their pre-employment practices are free from discrimination. However it needs to be understood that non-discriminatory employment practices also must continue throughout an employee’s employment.

Should there be any questions about the contents of this Industrial Relations Note, please contact either Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers, on (03) 9321 0720, 0425 790 722 or phil.eberhard@plumber.com.au

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