Carman v Torrens Transit Services (North) Pty Ltd - [2009] SAEOT 6

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
CARMAN v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2009] SAEOT 6
Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Ms A Bachmann
29 July 2009
DISCRIMINATION LAW
Allegation of discrimination on the basis of impairment against an applicant for a position of bus operator - whether respondent acted in contravention of the Equal Opportunity Act 1984 - the rejection of the application found to be in contravention of the Act - appeal allowed - compensation awarded.
Equal Opportunity Act 1984; Workplace Relations Act 1996, referred to.
Forest v Queensland Health [2007] FCA 1236; Gama v Qantas Airways No 2 [2006] FMCA 1767, considered.

CARMAN v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2009] SAEOT 6

On 16 September 2005, Mr Carman complained to the Commissioner of Equal Opportunity (“the Commissioner”) that Torrens Transit Services (North) Pty Ltd (“Torrens Transit”) had discriminated against him by denying him access to employment contrary to the Equal Opportunity Act 1984 (“the Act”). The Commissioner attempted to conciliate the complaint, but was unsuccessful. The Commissioner referred the complaint to this Tribunal pursuant to s 95(8) of the Act, for hearing and determination on 19 March 2008.
At the hearing before this Tribunal, Mr and Mrs Carman and Dr John Meegan, an occupational physician, gave evidence in the complainant’s case. Ms Schirmer, the Director of Clinical Services of the Corporate Health Group and Mr Doug Lamont, the General Manager of Torrens Transit, gave evidence in Torrens Transit’s case.
The Facts
Mr Carman was born in 1941. He drove school buses in Cummins, South Australia in the 1960s for about 12 months. In 1976, he was employed as a bus driver for a bus company in Mackay, Queensland, and he continued in that position for about three and a half years. He then moved to Adelaide and drove buses for Quest Tours for a further two and a half years. In about 1979, Mr Carman became a bus driver for TransAdelaide and he remained in that position until about June 1993. He then sold books for a year. In about 1995, Mr Carman purchased a mini bus and contracted to Adelaide Mini buses for about a year. Subsequently, he conducted his own business, “Adelaide Tour and Charter”, which eventually included one mini bus and two larger buses. He did general charter work and some school runs.
Mr Carman commenced part time casual employment with Serco on 4 March 2000. He continued to operate his business (employing other drivers) as well as working for Serco until 2004 when he sold his buses. As a part time casual employee of Serco, he worked between 20 and 50 hours per week. He underwent Serco’s training program. He was made a permanent full time employee of Serco in about May 2000. At first, he was based in Serco’s Elizabeth depot, but in July 2000, he moved to Serco’s Morphettville depot. At the Morphettville depot, Mr Carman worked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SAEOT 6
Decision Date: 29 July 2009

CaseChat Overview and Summary

In Carman v Torrens Transit Services (North) Pty Ltd, Mr Carman, a former bus driver, lodged a complaint with the Commissioner of Equal Opportunity alleging that Torrens Transit had discriminated against him on the basis of impairment by denying him access to employment. The Commissioner referred the complaint to the Equal Opportunity Tribunal for hearing and determination. Mr Carman argued that Torrens Transit had discriminated against him in contravention of the Equal Opportunity Act 1984. The Tribunal found that Torrens Transit had indeed discriminated against Mr Carman in determining who should be offered employment, as they rejected his application based on the results of a functional capacity assessment, which found that he did not meet certain physical requirements for the job. The Tribunal rejected Torrens Transit's argument that its conduct came within the exemption in s 71(2) of the Act, which provides that it does not apply to discrimination on the ground of impairment if the person is not, or would not be, able to perform adequately the work required for the employment or position in question. The Tribunal found that Torrens Transit had not been able to establish a sufficient nexus between the results of the tests and the ability of Mr Carman to perform the duties of a bus operator without endangering himself or others. The Tribunal awarded Mr Carman compensation for injury to feelings, hurt and humiliation, as well as compensation for economic loss sustained as a result of the discrimination. The Tribunal ordered Torrens Transit to pay Mr Carman $29,000 in compensation.

Orders