In Shizas v Commissioner of Police  FCA 61, the Federal Court confirmed that the prohibition on discrimination section 351 of the Fair Work Act 2009 (Cth) (“FW Act”) applies to prospective employers as well as actual employers and that an Applicant need not establish a prima facie case in order to enliven the reverse onus of proof in section 361 of the FW Act.
Under section 351 of the FW Act it is unlawful for an employer to take adverse action against an employee because of their age, race, physical disability and other grounds, unless the action is taken because of the inherent requirements of the position. Under section 361 of the FW Act, it will be presumed that the action was taken for a prohibited reason unless the person proves otherwise.
In 2012, Mr Shizas applied to join the Australian Federal Police (“AFP”), but was unsuccessful because, following a diagnosis of ankylosing spondylitis (a form of arthritis), a decision was made that he did not satisfy the AFP’s medical clearance requirements. Mr Shizas claimed that because of his physical disability, the AFP took adverse action against him by deciding not to employ him.
The employer submitted that because section 351 only referred to an “employer”, it did not apply to prospective employers. However, taking into account the ordinary meaning of employer and the text and context of the provision, the Court held that the prohibition in section 351 also applies to both actual and prospective employers.
Mr Shizas’ employer also submitted that the reverse onus of proof in section 361(1) of the FW Act is not enlivened until the Applicant establishes a prima facie case that the action was taken for a prohibited reason. The Court rejected this submission. It was held that once the applicant has proved the “factual circumstance” that is said to be the reason for the taking of the adverse action (which in this case was the fact that Mr Shizas had a disability), the burden of proof was on the employer to prove that the adverse action was not taken because of Mr Shizas’ disability.
The Court was satisfied that the adverse action was taken because of Mr Shizas’ disability, but ultimately held that it was also taken because of the inherent requirements of the job. Therefore, it was held that Mr Shizas’ employer had not contravened section 351 of the FW Act.