Cosma v Qantas Airways Limited

FEDERAL COURT OF AUSTRALIA

Cosma v Qantas Airways Limited [2002] FCA 640

ANTI-DISCRIMINATION – application in respect of disability discrimination – applicant injured in 1991 while working as porter – subsequent rehabilitation program – applicant engaged in clerical and other light duties – employment terminated in 1997 on the ground of disability –– whether “particular employment” was employment as porter – what were “inherent requirements” of applicant’s particular employment whether applicant unable to carry out “inherent requirements of the particular employment” – whether “services” or “facilities” required – assessment of compensation

WORDS AND PHRASES – “particular employment”, “inherent requirements”, “services”, “facilities”

Disability Discrimination Act 1992 (Cth) s 15(4)
Human Rights and Equal Opportunity Act 1986 (Cth)  s 46PO(4)(d)

X v Commonwealth (1999) 200 CLR 177 at [67] and [105] – [106], [102] applied
Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [1], [34], [36], [38] applied

SILVANO COSMA v QANTAS AIRWAYS LIMITED
V118 OF 2001

HEEREY J
21 MAY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V118 OF 2001

BETWEEN:	SILVANO COSMA APPLICANT
AND:	QANTAS AIRWAYS LIMITED RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.        The applicant pay the respondent’s costs including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V118 OF 2001

BETWEEN:	SILVANO COSMA APPLICANT
AND:	QANTAS AIRWAYS LIMITED RESPONDENT

JUDGE:	HEEREY J
DATE:	21 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant Silvano Cosma claims that in July 1997 he was dismissed by his employer the respondent Qantas Airways Limited on the ground of his disability contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the Act). That provision relevantly is as follows:

   “It is unlawful for an employer
   …
   to discriminate against an employee on the ground of the employee’s disability
   …
   (c)       by dismissing the employee.”

2. Qantas admits that it dismissed the applicant on the ground of a disability which resulted from a shoulder injury sustained in 1991. However, it relies on s 15(4) of the Act which provides such discrimination is not unlawful if it is

   “… by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

   (a)would be unable to carry out the inherent requirements of the particular employment; or

   (b)would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.”

3. In relation to “unjustifiable hardship”, s 11 of…