Barghouthi v Transfield Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Barghouthi v Transfield Pty Limited [2002] FCA 666

RAMZI BARGHOUTHI v TRANSFIELD PTY LIMITED
N 1584 OF 2001

HILL 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
APPELLANT

AND:

TRANSFIELD PTY LIMITED
RESPONDENT

JUDGE:

HILL J

DATE:

5 JUNE 2002

PLACE:

SYDNEY

CORRIGENDUM TO REASONS FOR JUDGMENT

  1. 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.”

  2. 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 169

Awan 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 distinguished

B Creighton & A Stewart, Labour Law: an introduction 3rd ed 2000
G McCarry, “Constructive Dismissal of Employees in Australia” (1994) 68 Australian Law Journal 494

RAMZI…

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Details
Case
[2002] FCA 666
Decision Date

CaseChat Overview and Summary

Mr Barghouthi appeals against the Federal Magistrates Court decision dismissing his application that his employer, Transfield Pty Ltd, had unlawfully discriminated against him in breach of the Disability Discrimination Act 1992. The Federal Magistrates Court held there was no evidence that the appellant was dismissed from his employment, and there was no evidence of discrimination when he attempted to recommence work seventeen months later. The appellant argues that he was dismissed due to his back injury and the distress caused by his former employer's actions, and that these constitute unlawful discrimination under the Act. The appeal was heard before a single judge of the court, as the appellant was unrepresented.

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

The appellant, Mr Barghouthi, appeals to this court against the decision of Driver FM in the Federal Magistrates Court dismissing his application, which alleged he was the victim of unlawful discrimination engaged in by his employer, Transfield Pty Limited, in breach of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). His application was dismissed on the basis that there was no evidence that he was in fact dismissed from his employment and further that there was no evidence of discrimination against him when he attempted to recommence work with the respondent some seventeen months later. The appeal is brought to this court pursuant to s 24(1)(d) of the Federal Court Act 1976 (Cth) and is before a single judge in accordance with a direction made pursuant to s 25(1A) of that Act. The appellant was not represented at the hearing.The Facts On 4 January 1999 the appellant entered into a “Project Specific Contract of Employment” with the respondent to work on the “Telstra CAN 2001 Project”. The contract specified that the period of engagement was not to exceed 26 weeks. It is of some relevance that at the time this contract was signed the appellant remained employed by PlesTel Pty Ltd (now called Commander Australia Limited) and that he had gone on leave without pay from that employment on 29 December 1998 on account of a back injury sustained whilst in the course of his employment. It was concluded by the Magistrate below that Mr Barghouthi had indeed sustained a back injury at the time he was employed by PlesTel and that finding was not in dispute at the hearing before this court. The appellant lodged a compensation claim for his injury on 29 December 1998. It came to the attention of PlesTel that Mr Barghouthi had commenced employment with Transfield and as a result he was called in to a meeting with PlesTel on 26 February 1999 where he was confronted over his new employment and informed that PlesTel would implement a summary dismissal and advise the company’s insurers, Royal & Sun Alliance Insurance, of a possible fraudulent claim. There is some suggestion from the evidence that PlesTel may then have contacted Transfield to inform them of the action which had been taken against Mr Barghouthi. The appellant claims that this turn of events caused him great distress which affected his ability to work. It is noted that in his submissions the appellant alleged that the actions of PlesTel should be found to be discriminatory and unlawful and further that the solicitors who have acted for him in the past did so somehow in breach of the law. However, these matters are irrelevant to this case as none of Commander Australia, PlesTel nor the solicitors are a party to these proceedings. The appellant commenced work with the respondent in January 1999. However his back injury had forced him to stop working on 23 February 1999. On 1 March 1999 the appellant telephoned Philip Batty, the Project Manager, and verbally requested a leave of absence from his employment with the respondent on account of his injury. In a letter, reacting although not really responding to the appellant’s request sent on 5 March 1999 Mr Batty, on behalf of Transfield, stated:“We confirm your verbal resignation of 1st March, 1999 from Transfield Maintenance and would like to take this opportunity to thank you for all your work and wish you every success in the future.”The Magistrate accepted the appellant’s evidence that he disputed that he had resigned despite there being “no contemporaneous written record of that”: Barghouthi v Transfield Services [2001] FMCA 113 at [10].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HILL J
On 21 November 2000 Mr Barghouthi filed an application for relief in the Industrial Relations Commission of New South Wales. I was told from both sides of the bar table that this application was dismissed because the Commission found it did not have jurisdiction to determine the matter. Mr Barghouthi then complained to the Human Rights and Equal Opportunity Commission which terminated his complaint on the basis that it was “misconceived” on 7 April 2001. As a result of this termination, on 18 April 2001 Mr Barghouthi made an application to the Federal Court pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (the “HREOC Act”). The Federal Magistrate dismissed this application on 15 November 2001 and on 3 December 2001 Mr Barghouthi lodged an appeal to this court.The Decision of the Federal Magistrate The Federal Magistrate gave ex tempore reasons for judgment. Despite divergence in the evidence, it was held both that the appellant was “a sincere and honest witness”, at [6], and also that the witnesses called in support of the respondent’s case were “reliable witnesses”, at [7]. This provides little guidance as to which version of the events surrounding the allegedly discriminatory conduct was to be accepted. Special reference was made, however, to the fact that “the applicant misunderstood his position following the expiration of his employment”, at [6]. In his consideration of the issues his Honour found that Mr Bargouthi had sought a leave of absence (and not resigned) from the employment of Transfield as a result of either his back injury or the distress he was suffering as a result of the events surrounding PlesTel’s termination of his employment or both. Although it was accepted that the appellant disputed the suggestion that he had resigned, at [10], his Honour placed greater emphasis on the fact that Mr Barghouthi did not return to his employment. The Magistrate also accepted that at the time he did seek to resume work (August and September 2000) there were no positions available for him because of the downturn in the respondent’s business: see [10] and [12]. The crux of the decision is found at [11] where his Honour states:“It is for the applicant to satisfy this court that he has been discriminated against [reference omitted]. I have no evidence before me on which I could be satisfied that the applicant was dismissed from his employment by the respondent. The applicant either resigned from that employment as was understood by the respondent at the time or he sought and obtained an indefinite period of absence from his employment. Probably the latter. The applicant made no attempt to resume his employment until after his fixed term contract had expired. Clearly, the expiration of a fixed term contract terminates the employment relationship and the termination thus arrived at is not an unlawful termination [reference omitted]. There can be no discrimination in the termination of employment by the simple effluxion of time.”Duty of the Court in dealing with an unrepresented litigant

Ratio Decidendi

Legal Principle Established

Established by: HILL J

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