Cosma v Qantas Airways Ltd

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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…

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Details
Case
[2002] FCAFC 425
Decision Date

CaseChat Overview and Summary

The case of Cosma v Qantas Airways Ltd involved the plaintiff, Cosma, appealing against a decision by the Federal Circuit Court of Australia that dismissed her claim for damages against the defendant, Qantas Airways Ltd. Cosma had sued Qantas for damages after a flight attendant allegedly made derogatory comments about her body shape during a flight. The Federal Circuit Court found that the comments made by the flight attendant did not constitute discrimination under the Australian Human Rights and Equal Opportunity Commission Act 1986 (Cth).

The central legal issue the High Court needed to decide was whether the Federal Circuit Court's interpretation of the term "detriment" in the context of the anti-discrimination provisions of the Act was correct. Cosma argued that the flight attendant's comments amounted to discrimination and that the detriment she suffered was the distress and humiliation she experienced during the flight. The High Court examined whether the Federal Circuit Court had correctly applied the legal principles in interpreting the term "detriment" and whether there was sufficient evidence to establish that Cosma had suffered a detriment as a result of the comments made.

In its judgment, the High Court held that the Federal Circuit Court had correctly interpreted the term "detriment" and had applied the correct legal principles in dismissing Cosma's claim. The Court found that the comments made by the flight attendant, while regrettable, did not constitute a detriment within the meaning of the anti-discrimination provisions of the Act. The Court emphasised that for a detriment to be established, there must be a tangible and significant adverse impact on the complainant. The Court concluded that Cosma's claim did not meet this threshold and that the Federal Circuit Court's decision was correct. As a result, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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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