Cosma v Qantas Airways Ltd

FEDERAL COURT OF AUSTRALIA

Cosma v Qantas Airways Ltd [2002] FCAFC 425

DISCRIMINATION LAW – whether appellant unlawfully discriminated against on the grounds of disability – where injured in 1991 while working as a porter in Ramp Services – where subsequently undertook rehabilitation and other duties – whether “particular employment” was as a porter in Ramp Services – whether “inherent requirements” of employment were that of a person employed as a porter in Ramp Services – where appellant could not resume duties as a porter in Ramp Services – whether respondent unlawfully discriminated in terminating employment in 1997 when appellant could not be redeployed in company

WORDS AND PHRASES – “particular employment”

Disability Discrimination Act 1992 (Cth) ss 11, 15
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 40

Waters v Public Transport Corporation (1991) 173 CLR 349 referred to
I W v City of Perth (1997) 191 CLR 1 referred to
Qantas Airways Limited v Christie (1997-1998) 193 CLR 280 referred to
X v The Commonwealth (1999) 200 CLR 177 followed

SILVANO COSMA v QANTAS AIRWAYS LIMITED (ACN 009 661 901)

V 348 OF 2002

BLACK CJ, FINN & DOWSETT JJ
20 DECEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 348 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILVANO COSMA APPELLANT
AND:	QANTAS AIRWAYS LIMITED (ACN 009 661 901) RESPONDENT
JUDGES:	BLACK CJ, FINN & DOWSETT JJ
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with 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	V 348 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILVANO COSMA APPELLANT
AND:	QANTAS AIRWAYS LIMITED (ACN 009 661 901) RESPONDENT

JUDGES:	BLACK CJ, FINN & DOWSETT JJ
DATE:	20 DECEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant commenced employment with the respondent in 1988. He suffered a shoulder injury in 1991. On 8 May 1997 he was notified that his employment was to be terminated with effect from 11 July 1997. He alleges that this termination constituted discrimination in employment contrary to s 15 of the Disability Discrimination Act 1992 (Cth) (the “Act”) and claims compensation accordingly. At first instance Heerey J found that the respondent had not unlawfully discriminated against the appellant in his employment and, at the request of the parties, fixed compensation at $185,291. The appellant appeals against the finding that there was no unlawful discrimination. Section 15 provides as follows:

   “(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:

   (a)in the arrangements made for the purpose of determining who should be offered employment; or

   (b)in determining…