Susan Bunning brought a claim for breach of the Sex Discrimination Act 1984 (Cth) (SDA) against her former employer, Centacare. Bunning claimed that she was unlawfully dismissed because she was polyamorous. Bunning also brought an action for breach of an implied term of contract as she was not afforded 12 months’ notice of termination. The main issue before the Court was whether polyamory constitutes a “sexual orientation” as defined in section 4 of the SDA.

Implications for employers

Employers should ensure that they understand what conduct may constitute breach of the SDA, especially in relation to termination of employment. Anti-discrimination protection afforded to sexual orientation under the SDA is limited to “how one is, rather than how one manifests that state of being.” Therefore, the SDA does not cover discrimination on the ground of sexual behaviour.

Background

On 5 August 2013, Bunning’s employment was terminated summarily by her employer, Centacare, after her employer became aware that Bunning’s contact details as a counsellor at Centacare were published on a website for the Brisbane Poly Group. Centacare claimed that this amounted to serious misconduct as Bunning’s associations with the Brisbane Poly Group brought Centacare into disrepute. Centacare claimed that as a result, this raised reasonable grounds for dismissal. Conversely, Bunning claimed that she was dismissed because she was polyamorous which contravened section 14 of the SDA.

Under the SDA, it is illegal to discriminate against someone based on their sexual orientation. This extends to terminating a person’s employment because of their sexual orientation.

Section 4 of the SDA defines sexual orientation to be a person’s orientation towards:

  • persons of the same sex; or
  • persons of a different sex; or
  • persons of the same sex and persons of a different sex.

Decision

Vasta J found in favour of Centacare and granted Centacare’s application for summary dismissal of Bunning’s claims.

Vasta J based this decision on a distinction between “sexual orientation” as a state of being as opposed to polyamory as a “sexual behaviour”, that is, a manifestation of a state of being. Relying on basic statutory interpretation, Vasta J concluded that the anti-discrimination protection afforded to sexual orientation under the SDA does not extend to sexual behaviours such as polyamory. If this were to be the case, then illegal activities such as paedophilia and necrophilia may fall under the protection of the SDA, a result which Vasta J labelled an “absurdity”. Consequently, Bunning could not establish that there had been “sexual discrimination” as understood by the SDA and her discrimination claim failed.

Vasta J further decided that the Federal Circuit Court of Australia (FCCA) did not have jurisdiction to hear the claim on the breach of the implied reasonable notice term. This breach of contract claim is founded in common law and so the only means by which such a claim may be heard by the FCCA is in its “associated jurisdiction”. The associated jurisdiction is derived from the initial claim for sex discrimination under the SDA. However, since that claim failed, the associated jurisdiction for the FCCA to hear the breach of contract claim did not exist.

Bunning v Centacare [2015] FCCA 280