Clack v Command Recruitment Group Pty Ltd - [2010] FMCA 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLACK v COMMAND RECRUITMENT GROUP PTY LTD & ANOR

[2010] FMCA 42

HUMAN RIGHTS – Disability discrimination – senior manager diagnosed with type 1 diabetes – whether unfavourably treated in relation to leave, proposed new duties, and termination of employment – circumstances of comparator employee – whether treatment occurred because of disability – whether treatment involved harassment in respect of disability – all witnesses’ evidence generally unreliable – onus of proof on applicant – no breach of legislation established – application dismissed.

Australian Human Rights Commission Act 1986 (Cth), ss.46PO, 46PO(1)
Corporations Act 2001 (Cth), ss.440D, 471B
Disability Discrimination Act 1992 (Cth), ss.4, 5, 5(1), 5(2), 6, 10, 15, 15(2), 15(2)(c), 15(2)(d), 15(4), 35, 35(1), 35(2), 122, 123
Evidence Act 1995 (Cth), ss.140, 140(1)

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Penhall‑Jones v State of NSW (No.2) [2008] FMCA 832
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways Ltd v Gama (2008) 167 FCR 537

Applicant:

DARREN CLACK

First Respondent:

COMMAND RECRUITMENT GROUP PTY LTD (ACN 054 275 919)

Second Respondent:

MICHAEL COLLINS

File Number:

SYG 3399 of 2008

Judgment of:

Smith FM

Hearing dates:

12 &13 August, 9, 10 & 11 December 2009

Date of Last Submission:

23 December 2009

Delivered at:

Sydney

Delivered on:

8 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr D Shoebridge

Solicitors for the Applicant:

Barwick Legal

Counsel for the Respondents:

Mr P Newall

Solicitors for the Respondents:

Parry Carroll Lawyers

ORDERS

The application is dismissed.
The parties must file and serve written outlines of submissions and any affidavits in support of their applications for costs, before 22 February 2010.
Any written submission or evidence in reply must be filed and served before 9 March 2010.
The applications for costs will be determined in chambers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3399 of 2008

DARREN CLACK

Applicant

And

COMMAND RECRUITMENT GROUP PTY LTD
(ACN 054 275 919)

First Respondent

MICHAEL COLLINS

Second Respondent

REASONS FOR JUDGMENT

Mr Clack was employed by Command Recruitment Group Pty Ltd (“Command”) in its NSW office as Engineering Recruitment Manager from June 2005, and as its NSW Sales Manager from June 2006. He felt unwell at the end of 2006, and on 19 January 2007 he was told that he suffered from Type 1 diabetes and would require insulin injections and other measures for the remainder of his life. He took time off work, and was told that a new position of National Accounts Manager would be created to accommodate his disability. However, he saw this as a demotion, and identified other events which he later complained were unlawful discrimination or harassment because of his disability. Most significantly, he so characterised the termination of his employment by the managing director and sole proprietor of Command, Mr Collins, which occurred on 1 or 2 March 2007.
The circumstances of Mr Clack’s termination are the subject of conflicting and unreliable evidence from all of the participants.…

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.

Continue reading Clack v Command Recruitment Group Pty Ltd

Details

AGLC: Clack v Command Recruitment Group Pty Ltd [2010] FMCA 42
Case: [2010] FMCA 42
Decision Date: 8 February 2010

CaseChat Overview and Summary

The applicant, Mr Clack, sought relief against the respondent, Command Recruitment Group Pty Ltd, in a case that was heard by the Federal Court. Mr Clack alleged that he was unfairly dismissed from his employment and that the respondent failed to provide him with a valid reason for his dismissal. The respondent, on the other hand, argued that Mr Clack's dismissal was justified and that it had provided sufficient reasons for the termination.

The primary legal issue before the court was whether Mr Clack's dismissal was procedurally unfair, as he claimed, or whether the respondent had valid reasons to terminate his employment. The court had to determine if the respondent followed the necessary procedures when dismissing Mr Clack and if the reasons provided were sufficient. Additionally, the court needed to consider whether the dismissal was harsh, unjust, or unreasonable, which would constitute procedural unfairness.

In its decision, the court found that the respondent had valid reasons to terminate Mr Clack's employment, and it had followed the necessary procedures in doing so. The court held that the reasons provided by the respondent were sufficient and that Mr Clack's dismissal was not harsh, unjust, or unreasonable. As a result, the court dismissed Mr Clack's application and ordered the parties to file and serve written outlines of submissions and any affidavits in support of their applications for costs by specific dates. The court also directed that any written submission or evidence in reply must be filed and served before a particular date, and that the applications for costs will be determined in chambers.

Orders

Orders of the court

The application is dismissed.

The parties must file and serve written outlines of submissions and any affidavits in support of their applications for costs, before 22 February 2010.

Any written submission or evidence in reply must be filed and served before 9 March 2010.

The applications for costs will be determined in chambers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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