Barghouthi v Transfield SERVICES
[2001] FMCA 113
•15 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARGHOUTHI v TRANSFIELD SERVICES | [2001] FMCA 113 |
| HUMAN RIGHTS – disability discrimination – alleged discrimination in employment – application dismissed. |
Disability Discrimination Act 1992 (Cth), ss. 5, 6, 15
Federal Court Rules 1976
Federal Magistrates Court Rules 2001
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Fisher v Edith Cowan University (1996) 70 IR 2006
Van Druten v Sheraton Pacific Hotels Pty Ltd [1996] HREOCA 23
| Applicant: | RAMZI BARGHOUTHI |
| Respondent: | TRANSFIELD SERVICES |
| File No: | SZ296 of 2001 |
| Delivered on: | 15 November 2001 |
| Delivered at: | Sydney |
| Hearing Dates: | 17 October 2001, 15 November 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr T Davies |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs of the application which are fixed at $1,000, pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ296 of 2001
| RAMZI BARGHOUTHI |
Applicant
And
| TRANSFIELD SERVICES |
Respondent
REASONS FOR JUDGMENT
Background
This ex tempore judgment is in respect of an application by Ramzi H Barghouthi against Transfield Pty Limited, Mr Barghouthi’s former employer. The application is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging that the applicant was the victim of discrimination contrary to sections 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). It became apparent at trial that this was a case of alleged direct discrimination and so s.6 is not relevant. It also became apparent at trial that the applicant was relying upon s.15(1)(b) as well as s.15(2)(c).
The background to the proceedings is that Mr Barghouthi obtained fixed term employment with the respondent. The applicant apparently sustained a back injury whilst in previous employment and had made a compensation claim to his previous employer. That employer became aware that the applicant had obtained employment with Transfield whilst on leave without pay and terminated his employment. Immediately following that dismissal, the applicant sought leave of absence from his employment with the respondent but the respondent understood the applicant to be resigning from that employment. The applicant subsequently disputed that he had resigned but did not return to his employment. In due course, the term of the applicant’s employment expired. Later, when the applicant sought to resume his employment he was informed by the respondent that his employment had expired by effluxion of time and that there were no new positions available. The applicant subsequently made a complaint of disability discrimination to the Human Rights and Equal Opportunity Commission (“HREOC”).
On 7 April 2001 the President of HREOC terminated the applicant’s complaint on the basis that it was misconceived. On 18 April 2001 Mr Barghouthi made the application which is now before me. He filed an amended application on 27 July 2001. In its defence filed on 6 August 2001 the respondent denies that it has engaged in any conduct that amounts to discrimination under the DDA.
The applicant’s case
The applicant relies upon his own affidavits made on 18 April 2001 and 27 July 2001. He also relies upon two short affidavits by Sadeq Othman made on 27 August 2001 and Ezzeldin Adwan made on 24 August 2001. The applicant further relied upon his affidavit made on 30 August 2001 to which were annexed a number of documents upon which he relied. The applicant was cross-examined on his affidavits. His other deponents were not. Their evidence was of limited relevance to the proceedings, as it mainly went to the applicant’s good character, but it also provided some evidence of the applicant’s distress and physical injuries.
The applicant’s case is that he was, in effect, dismissed from his employment when he advised the respondent on 1 March 1999 that he could not return to work until his back injury improved. Further, or in the alternative, the applicant contended that he was discriminated against by being prevented from returning to work when he sought further employment on 2 August 2000 and 21 September 2000.
I found the applicant to be a sincere and honest witness. He genuinely believes that he has been wronged by the respondent and that he should have been permitted to return to work with the respondent. I accept him as a man who is conscientious and who wishes to work. As will become apparent, however, the applicant misunderstood his position following the expiration of his employment with the respondent.
The respondent’s case
The respondent relies upon the affidavits of John Lee (the industrial relations manager of the respondent) made on 6 August 2001, and an undated affidavit filed on 3 October 2001. Further, the respondent relies upon the affidavits of Carl Koong (a business manager with the former employer of the applicant prior to his employment with the respondent) made on 28 September 2001. Both these deponents were cross-examined on their affidavits and I found them to be reliable witnesses. They were unshaken on cross-examination from any of the details set out in their affidavits.
The respondent’s case is essentially that the applicant only worked with the respondent between 4 January 1999 and late February 1999. During the last days that he was working the applicant worked on light duties, apparently due to his back injury. The applicant then asked for an indefinite period of time off for his back injury. The respondent asserts that on 1 March 1999 an employee of the respondent, a Mr Batty, received a telephone call from Mr Barghouthi in which Mr Barghouthi informed Mr Batty that he would not be returning to work due to his back injury. The respondent says that Mr Batty believed that Mr Barghouthi had resigned from his employment with the respondent. Mr Batty sent a letter to Mr Barghouthi confirming the apparent resignation on 5 March 1999. In any event, Mr Barghouthi did not return to his employment and that employment would have ceased on or about 4 July 1999. It was not until May 2000 that Mr Barghouthi made contact again with the respondent and it was not until August 2000 that Mr Barghouthi sought to resume his employment which had, by then, expired. The respondent says that at that time no further positions were available due to a reduction in business and that numerous employees had been laid off due to that reduction in business. The respondent denies that it either terminated Mr Barghouthi’s employment because of his disability or that it declined to offer employment to Mr Barghouthi subsequently because of that disability.
Consideration of the issues
Although not formally conceded by the respondent, there is evidence that Mr Barghouthi sustained a back injury whilst working for a company now called Commander Australia Limited. He was on leave without pay from that company after he had put in a worker’s compensation claim for his injury. Mr Barghouthi had specifically requested leave without pay so that he could seek other employment. However, he did not disclose to his then employer that he was seeking other employment and when this was discovered Commander Australia terminated Mr Barghouthi’s employment. Mr Barghouthi was distressed at this turn of events as he felt that he was accused of dishonesty. At the same time, he apparently considered that his back injury was deteriorating. For either or both of these reasons Mr Barghouthi sought indefinite leave of absence from his employment with the respondent.
It seems clear that Mr Batty, acting on behalf of the respondent, took Mr Barghouthi’s request for an indefinite period of absence from his employment as a resignation. He wrote to Mr Barghouthi purporting to confirm the resignation. I accept Mr Barghouthi’s evidence that he disputed that he had resigned, although there is no contemporaneous written record of that. There is, however, a record in exhibit R2, being a letter from Mr Barghouthi dated 20 November 2000, prepared for the purposes of unfair dismissal proceedings in the Industrial Relations Commission in which Mr Barghouthi sets out his recollection of events. In any event, Mr Barghouthi did not return to his employment. By the time he sought to resume his employment with the respondent the period of his fixed term contract had run out. On Mr Barghouthi’s own evidence that was because of Mr Barghouthi’s own assessment that he was unfit for work. He left the matter in his own hands. I accept the evidence of the respondent that when Mr Barghouthi did seek to resume his employment there were no positions available for him because of the downturn in the respondent’s business.
It is for the applicant to satisfy this Court that he has been discriminated against: Van Druten v Sheraton Pacific Hotels Pty Ltd [1996] HREOCA 23. 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 a termination thus arrived at is not an unlawful termination: Fisher v Edith Cowan University (1996) 70 IR 2006, per Madgwick J, at page 211. There can be no discrimination in the termination of employment by simple effluxion of time.
Neither do I have any evidence from which I could conclude that the applicant was discriminated against when he was refused employment in August and September 2000. Those requests for employment were refused because the respondent had no suitable positions available.
In conclude, therefore, that the applicant has failed to establish any unlawful discrimination by the respondent and his application must therefore be dismissed. Prima facie, the respondent, having been wholly successful, is also entitled to an order for costs. The respondent has done nothing to disentitle itself to an order for costs and there is no other reason in these proceedings why costs should not be ordered. Accordingly, I will make an order for costs.
In the ordinary event the fixed event based regime of costs established by the Federal Magistrates Court Rules 2001 would apply. I note, however, that the respondent has conceded that in the circumstances of this case a modest fixed award of costs of around $1,000 would be appropriate. This would be substantially less than the costs that would apply under the fixed event based costs regime and I accept that in the circumstances of this case a fixed award of costs of $1,000 would be appropriate. That is the award that I will make.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 November 2001