FEDERAL COURT OF AUSTRALIA
Barghouthi v Transfield Pty Limited [2002] FCA 666
RAMZI BARGHOUTHI v TRANSFIELD PTY LIMITED
N 1584 OF 2001HILL J
5 JUNE 2002 (Corrigendum 12 June 2002)
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1584 OF 2001
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
RAMZI BARGHOUTHI
APPELLANTAND:
TRANSFIELD PTY LIMITED
RESPONDENT
JUDGE:
HILL J
DATE:
5 JUNE 2002
PLACE:
SYDNEY
CORRIGENDUM TO REASONS FOR JUDGMENT
The final sentence of paragraph 25 of the Reasons for Judgment should read “As such, pursuant to s 46PO of the HREOC Act (which enabled the appellant to bring these proceedings to this court), I will order that the respondent pay the appellant the sum equal to 1 weeks salary under the “Project Specific Contract of Employment”.” not “As such, pursuant to s 46PO of the HREOC Act (which enabled the appellant to bring these proceedings to this court), I will order that the respondent pay the appellant the sum equal to 1 weeks salary under the “Project Specific Contract of Employment” and also that the respondent pay the appellant’s costs.”
On the page that sets out the orders made by the court and on the first page of the Reasons for Judgment, the words “ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA” should appear in the centre of the page under the line that begins “NEW SOUTH WALES DISTRICT REGISTRY”.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to Reasons for Judgment herein of the Honourable Justice Hill.
Associate:
Dated: 12 June 2002
FEDERAL COURT OF AUSTRALIA
Barghouthi v Transfield Pty Limited [2002] FCA 666
HUMAN RIGHTS – disability discrimination – appeal from decision of Federal Magistrate – whether Federal Court has jurisdiction to consider discrimination claim where a different claim based on the same factual circumstances brought by the same person was dismissed by NSW Industrial Relations Tribunal on jurisdictional grounds – whether Magistrate made an error of law by finding the appellant was not dismissed from employment – whether constructive dismissal where employer sent employee a letter purporting to confirm his verbal resignation although he had not resigned – whether dismissal amounted to unlawful disability discrimination – appeal allowed.
Disability Discrimination Act 1992 (Cth) ss 5, 13(4), 15(4)
Human Rights and Equal Opportunity Act 1986 (Cth) s 46PO
Industrial Relations Act 1996 (NSW) s 169Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 approved
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129 approved
Transport Workers’ Union of Australia v Eastern Goldfields Transport Board (1989) WAIG 1895 cited
Hiser v Hardex Co-operative Ltd (unreported, Supreme Court of NSW, Santow J, 14 December 1993) cited
Cosma v Qantas Airways Limited [2002] FCA 640 distinguishedB Creighton & A Stewart, Labour Law: an introduction 3rd ed 2000
G McCarry, “Constructive Dismissal of Employees in Australia” (1994) 68 Australian Law Journal 494RAMZI…
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- Case
- [2002] FCA 666
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Federal Magistrates Court correctly found there was no evidence of dismissal and no evidence of discrimination when the appellant sought to recommence work. The court had to consider the evidence regarding the appellant's employment status, his request for leave, and the circumstances surrounding his inability to recommence work with the respondent. The court also needed to determine if the Federal Magistrates Court properly exercised its discretion in dealing with the unrepresented appellant.
The court found that the Federal Magistrates Court had erred in its decision. It held that the appellant had been dismissed from his employment, and that the dismissal was due to his back injury and the distress caused by the actions of his former employer, which constituted unlawful discrimination under the Act. The court noted that the appellant had sought leave of absence due to his injury, not resignation, and that the circumstances of his dismissal warranted a finding of discrimination. The court found that the Federal Magistrates Court did not properly exercise its duty in dealing with the unrepresented appellant.
The court allowed the appeal, set aside the orders of the Federal Magistrates Court, and ordered the respondent to pay the appellant one week's salary. The court also declared that the respondent had committed unlawful discrimination. There was no order for costs at first instance or on the appeal.
Orders
Orders of the court
(i) the appeal be allowed and the orders of Driver FM made on 15 November 2001 be set aside.
(ii) the respondent pay the appellant a sum equal to one (1) weeks salary under the “Project Specific Contract of Employment”; and
(iii) there be no order for costs at first instance or on the appeal.
THE COURT DECLARES THAT:
(iv) the respondent has committed unlawful discrimination.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HILL J
Full text does not contain this section.