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The prohibition in s.351 does not apply to action which is:
The operation of s.351 is limited by reference to exceptions derived from anti-discrimination legislation.[1]
A person needs to be covered by either the Commonwealth law or applicable State or Territory Law for the protection to apply.
The only exclusion of this type is for people in New South Wales and South Australia who are seeking protection on the grounds of ‘Religion’ or ‘Political opinion’ – neither State’s law provide that discrimination on these grounds is unlawful and there is no Commonwealth law which provides protection for these grounds. As a result a person in New South Wales or South Australia would not be eligible to make a general protections application in respect of adverse action taken on the grounds of ‘Religion’ or ‘Political opinion’[2].
HOWEVER these persons would be eligible to make an application for Unlawful Termination instead if the adverse action was constituted by a dismissal, as ‘Religion’ and ‘Political opinion’ are expressly covered and these protections extend to ALL Australian workers.
The expression ‘inherent requirements’ is to be given its natural and ordinary meaning. That meaning directs attention to the essential features or defining characteristics of the position in question.[3]
Whether a requirement is an inherent requirement is a matter which should be determined according to common sense and objective fact rather than as a matter of mere speculation or impression.[5]
A practical method of determining whether or not a requirement is an inherent requirement is to ask whether the position would be essentially the same if that requirement were removed.[6]
A stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position.[7] An employer cannot create inherent requirements by stipulating contractual terms.
The requirements of a particular ‘position’ may be different from those of a particular ‘job’.[8] Position concerns rank and status. What is required of a person’s position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.[9]
What is an inherent requirement will usually depend upon the way in which the employer has arranged its business. Only those requirements that are essential in a business sense or in a legal sense can be regarded as inherent in the particular employment.[10]
Keys v Department of Disability, Housing & Community Services & Ors [2011] FMCA 35 (31 January 2011).
Appeal dismissed [2011] FCA 1424 (14 December 2011), [(2011) 215 IR 452].
The applicant was dismissed after consistently and for long periods of time not attending work at his required place of employment. The applicant’s mental disability was a cause of his inability to attend at his workplace and a reason for his dismissal.
The Court found that the applicant was unable to fulfil the inherent requirements of his particular position—the inherent requirement being his attendance at work. The decision was upheld on appeal.
Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (9 August 2013).
The applicant was transferred after needing ‘to take a number of days off due to medical and personal reasons’. The respondent argued that the transfer was necessary due to the inherent requirement of the position because the centre where the applicant worked was operated with only one full-time and one part-time employee. It was argued that it was an inherent requirement that the full-time employee be there for all rostered hours.
The Court found that while it is clearly an inherent requirement of an employee to attend for work, it could hardly be an inherent requirement of a position that the person not access the annual leave, personal leave and carer’s leave to which they are entitled by statute and contract.
The respondent was ordered to pay the applicant $32,130.78 for loss suffered.
If the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed and is taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed, the action does not fall within the prohibition of s.351.
‘Good faith’ is to be applied in a particular context by giving the words their ordinary meaning in accordance with established principles.[11] The Court has accepted the ordinary meaning of ‘good faith’ to be ‘a state of mind consisting in honesty in belief or purpose’ and ‘faithfulness to one’s duty or obligation’.[12]
Honesty is an element embedded in the ordinary meaning of good faith.[13] It must involve a belief that all is being regularly and properly done.[14]
Injury to the religious susceptibilities of adherents requires more than mere offence.[15] While the action must have been taken to avoid injuring the religious susceptibilities of adherents in order to satisfy the exception, there is no requirement that adherents were actually injured.[16]
An adherent is a person who is a supporter or a follower. At least some or a proportion of adherents must be affected to satisfy this limb.[17]
Kerry Anne Hozack v The Church of Jesus Christ of Latter-Day Saints [1997] FCA 1300 (27 November 1997), [(1997) 79 FCR 441].
The applicant was a member of a church which was also her employer. It was a condition of her employment to remain ‘temple-worthy’. The applicant was ‘disfellowshipped’ from the church and terminated from her employment after it was found that she was in a relationship with a man whilst she was separated from her husband but not divorced.
The Church successfully argued that the decision to terminate the applicant’s employment was made in good faith for the purpose of avoiding injury to the religious susceptibilities of its adherents.
[1] Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011) at para. 142, [(2011) 207 IR 129].
[2] See comments of Cambridge C in McIntyre V Special Broadcasting Services Corporation t/a SBS Corporation [2015] FWC 6768 [29]
[3]Qantas Airways Ltd v Christie (1998) 193 CLR 280 [35].
[4] ibid., [31].
[5] Commonwealth v Human Rights & Equal Opportunity Commission (1996) 70 FCR 76, 88.
[6] Qantas Airways Ltd v Christie (1998) 193 CLR 280 [36].
[7] ibid., [1].
[8] ibid., [73].
[9] ibid., [72].
[10] X v The Commonwealth (1999) 200 CLR 177 [36]‒[37].
[11] Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 [88].
[12] ibid., [90].
[13] ibid., [91].
[14] Cannane v J Cannane Pty Ltd (in Liquidation) (1998) 192 CLR 557 [101].
[15] Kerry Anne Hozack v The Church of Jesus Christ of Latter-Day Saints [1997] FCA 1300 (27 November 1997), [(1997) 79 FCR 441].
[16] ibid.
[17] Members of the Board of the Wesley Mission Council v OV (No 2) [2009] NSWADTAP 57 [54].