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Introduction

Read the full decision here.

A job applicant who was offered employment, despite back and knee issues, had that job offer later rescinded. When a judge of the Federal Court of Australia commences their decision with the words: “This is an unusual case” you expect something special, but…

The background to this matter involves a job applicant that was offered the job, with the employer being in the full knowledge of the applicant having back and knee issues. The prospective employer did not see this to be a problem as the work was mostly desk-bound and sit/standing desks were already in place.

Learnings from this decision

  • The subject matter leading to this judgement, cannot be faulted, except that the Company reneged on the job offer.
  • That an employee can sue an employer at common law.
  • That being an employee (for the purposes of the taking of an adverse action) overrides the provision of being a “prospective employee”, which in (my logic) leads to another unanswered question: “why have the provision there in the first place if it has not real effect?

My “legal fiction” (see later for definition)

  • The person applies for a job.
  • Company says “you’re” hired (subject to signing contract of employment).
  • The “chosen” applicant, wants to amend the contract of employment and also questions a number of other employment conditions.
  • The Company finds it all too hard and calls the whole thing off.
  • The aforementioned applicant, then says I’m, not happy with this decision and calls in the lawyers.
  • There is no evidence of agreement at conciliation (not even a mention of such occurring), both legal teams want to move forward cautiously and seek a narrow legal opinion from the courts.
  • The court finds that, as there was no signed contract, the “adverse action” does not apply.

Of course, my legal fiction, might be off the mark, but we must fill in the gaps as one must see fit…

Was this case informative and can we learn from it?

The decision proper was highly “legal-technical”, in that it focused on mainly two issues, the contract of employment and whether a “prospective” employee had rights to sue for Adverse action under the Fair Work Act.

This is disappointing because there were a number of cases cited, with legislation drawn upon – including:

  • Disability Discrimination Act 1992 (Cth.).
  • Equal Opportunity Act 2010 (Vic.).
  • Privacy Act 1988 (Cth).
  • Corporations Act 2001 (Cth) (disclosures by whistleblowers).
  • Competition and Consumer Act 2010 (Cth.).
  • Fair Work Act 2009 (Cth.) (ss. 340, 341, 342).

The decision proper does not help with what the thoughts of the parties were during the contract negotiations, with the prospective employee focussing of the list of her requirements. All we know is that is, in accordance with the written email of offer, the prospective employee sought out legal advice, which resulted in the prospective employee requesting that the proposed contract contain amended wording that:

“[the employee does] not have any pre-existing medical or psychological condition which could affect [the employee’s] ability to perform the inherent requirements of your role after reasonable adjustments have been made

“Please note: a reasonable adjustment [being] a workstation to be set up ergonomically including an electric sit/stand desk, therapod chair and anti-fatigue mat”.

With the prospective employee being “comfortable to fund a therapod chair and anti­fatigue mat, if required”.

And further, that the job offer was withdrawn by the prospective employer.

Legalise

Whilst I will refrain from quoting the complexity of the judges decision, I thought it might be instructive to provide the following terminology that was used throughout the decision:

Firstly, “legal fiction”, Wikipedia tells me:

“A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England”.

For example, in this decision the judge stated:

“Indeed, there is an air of unreality about this aspect of the applicant’s case: the nature of her inquiry was about a draft contract of employment made, applying the statutory fiction, when she is taken to have already been employed…”

Secondly, with which the judge concluded the decision with:

“…that the matter proceed to mediation even in the face of what may be a limping appeal from this decision”.

What does “limping appeal” mean? I can find no definition of this term and would be grateful to any legal folk out there who might be able to shed some light on this for me.

Questions to be answered before proceeding (you can skip this bit)

It was put to the court, and the judge agreed, that:

“The parties agreed that the first step in this proceeding should be for the Court to answer two preliminary questions of law based upon an agreed set of facts…The purpose [being] to avoid the potential incurrence of unnecessary cost.  The agreed questions were as follows:

  1. As a prospective employee of the Respondent and by reason of subsection 341(3) of the Fair Work Act 2009 (Cth) (FW Act), did the Applicant have a workplace right constituted by her being able to make a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act in relation to her prospective employment?

  2. If yes, are the First and/or Second and/or Third and/or Fourth Alleged Inquiry or Inquiries capable of being a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act?”

Agreed position of the parties

On a positive note, it would appear that both the parties were looking for legal guidance on two separate – although seemingly conflicting – sections of the “adverse actions” sections of the FWA. I say this because the parties submitted a list of “agreed facts” (some of which the judge did not agree, including that some of the “facts” were preceded by the words “alleged”, which means that the there was no agreement) and it was also agreed that costs would not be sought.

Practical lessons

For those of us who are asked regularly on the interpretation of Acts, awards and so forth; this decision provides the “rules” to follow when the there appears to be conflicting parts of a piece of legislation. In this case, the conflict between a prospective employee having workplace rights (mainly to do with discrimination), as opposed to section 341 which sets out the meaning of workplace right – in particular section 341(c)(ii), stating: “(ii) if the person is an employee – in relation to his or her employment”. My emphasis.

Put simply, one part of the section allows for a “prospective employee” with other requiring that the person be employed.

The nitty gritty

On the one hand the proposed contract was not executed; and on the other, it was argued the prospective employer took adverse action against the prospective employee in that the prospective employer refused to employ the prospective employee; or discriminates against the prospective employee in the terms and conditions on which the prospective employer offers to employee the prospective employee (Column 2, item 2).

The judgement/decision found that:

“…to the extent that there may be a conflict [in the legislation], that conflict might need to be resolved by a reading down of one of the provisions.  In that respect, the Full Court of this Court observed in Handbury Holdings Pty Ltd v. Federal Commissioner of Taxation (2009) 179 F.C.R. 569 at 577 [31] as follows:

‘The problem of reconciling apparently conflicting parts of the statute is well-worn territory. That process of reconciling such provisions will often require a court…to determine which is the leading provision, and which must give way’.

The referencing a High court decision (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]):

‘Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme’”.

And…employment wins!

The judge finding that the “leading provision” is s. 341(1)(c)(ii) [ie employee] and it is thus s. 341(3) [prospective employee] which “must give way” to its operation.

Common law right for employee to sue an employer

The judge then finding:

“Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint [this in reference to the adverse action]. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by…the right to sue and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.

“Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened.  The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint”.

The Competition and Consumer Act 2010

The judge then noting that:

“…the applicant has also pleaded claims in reliance…s. 31 of the Australian Consumer Law as contained in Sch. 2 to the Competition and Consumer Act 2010 (Cth.)…The latter section provides, in general terms, that a person must not, in relation to employment that is offered, engage in conduct that is liable to mislead a person seeking employment. Those claims are not considered in these reasons and may need to be addressed on another occasion”.

But was there a complaint (or enquiry)?

According to the judge, the answer to this question is “no”, however the judge put it this way:

“It was rather a simple application made as part of the applicant’s negotiation of her work conditions. Nor was the applicant’s statement that she had received legal advice and wanted to make changes to the Proposed Contract an “inquiry”…Again, what was said simply formed part of the negotiations between the parties…I otherwise accept that the question asked about the award or enterprise agreement was an “inquiry”, but doubt whether the same could be said in relation to the requests for amendments to the Proposed Contract and to the request for an ergonomic work station…Nonetheless, in what follows I have assumed, in accordance with the wishes of the parties, that [these] Inquiries constituted an “inquiry” as that word is used in s. 341(1)(c)(ii) of the FW Act”.

Conclusion

[Enter “dramatic” music…

  • Were the parties satisfied with the decision?
  • Will mediation be successful? Probably not, and if yes, it will be cheap.
  • What was the point?