June 16 – Hester, Humphrey and the Australian Defence Force

The pace at HALC is relentless and when the cases you are working on are literally matters of life, death, freedom and dignity, you really, really want to do the best job you possible can. As everybody who has come into contact with the team at HALC will know, the staff and volunteers are brilliant people and I can unreservedly say that the three months I spent at HALC have been the best of my entire legal training.

I was given the privilege of assisting Humphrey with his discrimination complaint against the Australian Defence Force (ADF). Humphrey has HIV and he was dismissed from the ADF because of his HIV status. Whilst Humphrey was a member of the ADF he worked in IT. Humphrey only ever worked in office environments and he was never engaged in any combatant role.

HALC assisted Humphrey to make an application to the Fair Work Commission on the grounds that his dismissal from the ADF was unlawful.

Humphrey’s claim for unfair dismissal was ultimately unsuccessful. Following the initial decision of the Fair Work Commission, HALC represented Humphrey with an appeal to the Federal Circuit Court. Due to the importance of the legal question to be answered, the Court agreed that the case should be heard by the Full Federal Court of Australia. The question was “are people like Humphrey who work for the ADF actually “employees” for the purpose of the Fair Work Act?”

HALC instructed senior and junior counsel on a pro bono basis to argue the matter before the Full Federal Court. The appeal was ultimately unsuccessful; with the  Federal Court holding that members of the ADF are not actually ’employees’, and as such, they do not fall within the Fair Work Act and cannot make claims of unlawful dismissal.

…to be continued…

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