Australia, Federal Circuit and Family Court of Australia, 21 December 2022, Wolfraad v Serco Australia Pty Limited [2022] FedCFamC2G 106

Case overview

Country
Australia
Case ID
Wolfraad v Serco Australia Pty Limited [2022] FedCFamC2G 106
Decision date
Deciding body (English)
Federal Circuit and Family Court of Australia
Type of body
Court
Type of Court (material scope)
  • Administrative Court
  • Civil Court
  • Constitutional Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
1st Instance
Area
Non-discrimination
Further areas addressed
  • Industrial relations / Labor law
  • Vaccination
  • Health, right to information and freedom of expression
Vulnerability groups
Asylum seekers
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_En available at www.austlii.edu.au
Other cases in the same cluster
O'Neill v Ability Options Ltd [2022] FWC 3342 - Fair Work Commission - 2022-12-20
General Summary

The Applicant was employed by the Respondent and claimed that he had been discriminated against for failing to comply with the Respondent’s COVID-19 vaccination policy. The Respondent claimed he had been discriminated against due to a perceived disability and for his political opinion. Main rights involved right to work, freedom from discrimination, freedom to bodily integrity, and freedom of expression and political opinion. Remedy sought was compensation and reinstatement. Application was dismissed.

Facts of the case

The Applicant was employed as a Detention Services Officer at an Immigration Detention Centre in Sydney which the Respondent ran. The Centre detained people who had breached Australia’s immigration laws including those who had entered the country illegally i.e., those seeking asylum or those claiming refugee status. The Applicant claimed he had been discriminated against due to his unvaccinated status regarding COVID-19 and adverse action was then taken against the Applicant by the Respondent in terminating his employment. The Applicant claimed this termination was in breach of s 351 of the Fair Work Act 2009 (Cth) because of a physical disability or perceived physical disability based on the Applicant’s vaccination status being unvaccinated for COVID-19. The risk of physical disability was to the extent that the Respondent speculated that the Applicant may have some kind of disease such as COVID-19 because he was unvaccinated. In the alternative, the Applicant claimed that the termination was in breach of s 351 of the Fair Work Act 2009 due to his political opinion being the Applicant’s expression of opposition against the Federal Government’s policies of mandatory vaccination against COVID-19 which the Respondent was seeking to impose at the time. The Applicant expressed this opinion by way of an email to approximately 200 staff members including the group CEO. The Applicant claimed that the Respondent’s termination of his employment was discriminatory as part of a general policy of discrimination against all employees who were unvaccinated.

The Court concluded that conduct which may contravene the Disability Discrimination Act does not also contravene s 351 of the Fair Work Act 2009. In that regard, the Court held that the Applicant’s allegations of discrimination did not engage any of the exceptions prescribed by s 351 of the Fair Work Act 2009. The Court further held that being unvaccinated against COVID-19 did not constitute a “disability” perceived or otherwise.

The Court held that the requirement to be vaccinated against COVID-19 was an inherent requirement of the job and that the Respondent’s mandatory vaccination policy was part of a good faith workplace health and safety initiative taken to discharge its obligations to its detainees.

Application was dismissed.

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
Compensation and reinstatement.
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Private individual
Type of procedure
Ordinary procedures
Reasoning of the deciding body

The Court engaged in statutory interpretation of the Fair Work Act 2009 (Cth) and the various Commonwealth discrimination Acts including the Disability Discrimination Act due to the Applicant’s contention that his termination from his employment was discriminatory. The Applicant claimed that the primary reason for his dismissal had been his unvaccinated status against COVID-19, which he described as a form of disability. The Applicant referred to section 3 of the Disability Discrimination Act which states that a disability includes one that is “imputed to a person such that the person is perceived to have such disability. The presence of a disease or illness in the body is considered a disability under section 3…” The Respondent terminated the Applicant’s employment based on his vaccination status therefore the Applicant argued, if his unvaccinated status was perceived to be a disability then the termination was discriminatory. The Court identified that section 351 of the Fair Work Act 2009 included the heading “Discrimination”. The Court referred to Hodkinson v Commonwealth (2011) 248 FLR 409 where the Court held that conduct that contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the Fair Work Act 2009. Therefore, the Applicant’s allegations of discrimination did not engage any of the prohibitions prescribed by s 351 of the Fair Work Act 2009.

In relation to the allegation that the Applicant was terminated because of his political opinion expressed in an email that he sent to 200 staff members and the group CEO, the Court held that this was not of central significance as it did not motivate the Respondent to dismiss the Applicant. The Court held that the decision to terminate had already been made prior to the email being sent.

In terms of whether vaccination against COVID-19 was an inherent requirement of the role, the Court noted that the detainees at the facilities were in a unique position of vulnerability. Therefore, the Respondent’s actions were designed to protect the detainees in its care from COVID-19 transmission. Despite the Applicant not believing in the effectiveness of the COVID-19 vaccination, the Applicant never suggested that the Respondents were not acting in good faith in trying to protect the detainees from the COVID-19 virus. The Applicant argued it was not an inherent requirement of his job as the requirement to be vaccinated was not expressly provided for in his contract of employment. However, the Court concluded that clauses 10 and 11 of the Applicant’s employment contract did provide that employees were to “observe company policy as in force from time to time” and that this included vaccination.

Conclusions of the deciding body

Application dismissed.

Fundamental Right(s) involved
  • Freedom of expression
  • Political rights
  • Right to bodily integrity
  • Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights under legislation: S 3 Disability Discrimination Act 1992 (Cth) – Objects of the Act
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. freedom of expression / right to information
General principle applied
Due process
Authors of the case note
  • Solicitor Kirsty Mackie, Research Assistant, Australian Centre for Health Law Research, Faculty of Business and Law, QUT
  • Muhammad Zaheer Abba, Lecturer, Chief Investigator, Australian Centre for Health Law Research, Faculty of Business and Law, QUT