Barghouthi v Transfield SERVICES

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

1. The application is dismissed.

2. 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.

3. 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

1. 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).

2. 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”).

3. 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…