Beck v Leichhardt Municipal Council

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECK v LEICHHARDT MUNICIPAL COUNCIL [2002] FMCA 331

HUMAN RIGHTS – Allegations of discrimination because of disability – rare disease causing visual impairment – intention to terminate employee on the basis of medical condition – application for continuation of interim injunction granted previously – determination of status quo – whether ex parte there was a ‘genuine issue to be tried’ – balance of convenience test.

Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Family Law Act1975 (Cth)

McIntosh v Australian Postal Corporations [2001] FCA 1012

Applicant: ANDREAS JOSEF BECK

Respondent: LEICHHARDT MUNICIPAL COUNCIL

File No: SZ 1181 of 2002

Delivered on: 6 December 2002

Delivered at: Sydney

Hearing Date: 5 December 2002

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr J Barnes

Solicitors for the Applicant: White Barnes Solicitors

Counsel for the Respondent: Ms C Ronalds

Solicitors for the Respondent: M C Lyons Solicitor

ORDERS

1. The respondent is restrained until seven days following the termination of his complaint to the Human Rights and Equal Opportunity Commission dated 19 November 2002 from terminating the applicant's employment for any reason associated with, arising out of or otherwise connected with the matters referred to in the said complaint.

2. The applicant shall remain on directed sick leave until his sick pay credits with the respondent have been exhausted and thereafter shall be placed on leave without pay pursuant to the industrial award under which he is employed.

3. The parties shall have liberty to apply to this court for reconsideration of these orders in the event of a significant change in circumstances including any significant delay in the procedures before the Human Rights and Equal Opportunity Commission.

4. No order as to costs of the ex parte application.

5. Respondent to pay the applicant’s costs of the application pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 851 of 2001

ANDREAS JOSEF BECK

Applicant

And

LEICHHARDT MUNICIPAL COUNCIL

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2002, the applicant came before me seeking an injunction under section 46PP of the Human Rights and Equal Opportunity Commission Act.  The Act is in the following form:

   46PP Interim Injunction to maintain status quo, etcetera.

   At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrate's Court may grant an interim injunction to maintain:

   a) the status quo, as it existed immediately before the complaint was lodged; or

   b) the rights of any complainant, respondent or affected person.

   Subsection 4 allows the court to discharge or vary an injunction granted under this section.

2. The applicant moved on an affidavit dated 19 November 2002 in which he deposed to being a council worker in the employ of the respondent for approximately 15 years.  For the last six years he had been employed as a waste service officer and his duties involved the collection of domestic or industrial waste within the council area. 

3. The applicant…