Barghouthi v Transfield Pty Ltd

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.