Cucanic v IGA Distribution (Vic) Pty Ltd - [2004] FCA 1226

FEDERAL COURT OF AUSTRALIA
Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226
INDUSTRIAL LAW – application for unlawful termination on grounds of disability – applicant injured in 2001 while working as Storeworker Grade II – employment terminated in 2003 while applicant engaged in light duties – whether “particular position” was determined exclusively by reference to the duties enumerated in the relevant Enterprise Bargaining Agreement – what were “inherent requirements” of applicant’s “particular position” – whether applicant able to carry out the “inherent requirements of the particular position”
Workplace Relations Act 1996 (Cth) ss 170CP, 170CR, 170CK
Qantas Airways Ltd v Christie (1998) 193 CLR 280, applied
Cosma v Qantas Airways (2002) 124 FCR 504, referred to
X v Commonwealth (1999) 200 CLR 177, applied
DAVID CUCANIC v IGA DISTRIBUTION (VIC) PTY LTD
V 627 OF 2003
MARSHALL J
20 SEPTEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 627 OF 2003

BETWEEN:

DAVID CUCANIC
APPLICANT

AND:

IGA DISTRIBUTION (VIC) PTY LTD
(ABN 87 006 509 280)
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

20 SEPTEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.

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 627 OF 2003

BETWEEN:

DAVID CUCANIC
APPLICANT

AND:

IGA DISTRIBUTION (VIC) PTY LTD (ABN 87 006 509 280)
RESPONDENT

JUDGE:

MARSHALL J

DATE:

20 SEPTEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Mr David Cucanic, has applied to the Court pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”) for an order under s 170CR in respect of an alleged contravention of s 170CK(2)(f).
Mr Cucanic alleged that his employment was terminated by the respondent, IGA Distribution (Vic) Pty Ltd, (“IGA”) for reasons which included the reason that he suffered from a physical disability. IGA conceded, through its counsel, that it terminated Mr Cucanic’s employment for that reason, but alleged that that reason was based on the inherent requirements of the particular position occupied by Mr Cucanic; see s 170CK(3) of the Act.
The issues
The questions for determination by the Court are:
- What was the particular position occupied by Mr Cucanic as an employee of IGA?
- What were the inherent requirements of the position? and
- Was Mr Cucanic, because of his disability, unable to carry out the inherent requirements of the position?
Factual context
IGA conducts a warehousing and distribution service from its premises at North Laverton, a western suburb of Melbourne. From about October 2000 until 4 May 2001, IGA employed Mr Cucanic as a storeperson at its North Laverton premises on a series of casual and short, fixed term contracts.
On 4 May 2001, IGA offered, and Mr Cucanic accepted, “a Permanent Full-time Position effective from the 04/05/01 as a Storeperson at the Laverton Distribution Center.” From his first casual engagement until May 2001, Mr Cucanic worked in the…

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 Cucanic v IGA Distribution (Vic) Pty Ltd

Details

AGLC: Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226
Case: [2004] FCA 1226
Decision Date: 20 SEPTEMBER 2004

CaseChat Overview and Summary

Cucanic v IGA Distribution (Vic) Pty Ltd is a decision from the Federal Court of Australia that involved an employee with a physical disability who sought to challenge the dismissal of his employment on the grounds of disability discrimination. The case revolved around the inherent requirements of the position that the employee held and whether his physical disability prevented him from fulfilling these requirements. The primary legal issues that the court had to decide were whether the inherent requirements of the position included all the major tasks required to be performed by someone occupying that position, and if the employee was unable to carry out these requirements due to his disability, then whether the employer had made out its defence under section 170CK(3) of the Fair Work Act 2009.

In reaching its decision, the court examined the arguments made by both parties and considered the relevant legislation, case law, and evidence presented. The court held that the inherent requirements of a position are not determined by the performance of work modified from that originally performed by an employee to assist his or her rehabilitation needs. It further held that the possibility of moulding the position to suit the needs of the employee on a permanent basis did not change the analysis. The court found that the position held by the employee included all the major tasks required to be performed by someone occupying that position, and that the employee was unable to carry out these inherent requirements due to his physical disability. As a result, the court concluded that the employer had made out its defence under section 170CK(3) of the Fair Work Act, and the application was dismissed.

The court's decision in this case highlights the importance of understanding the inherent requirements of a position and the potential implications of an employee's disability on their ability to perform those requirements. The decision also underscores the need for employers to carefully consider the requirements of a position and to take steps to accommodate employees with disabilities where possible, while also balancing the needs of the business. The outcome of this case is likely to have implications for employers and employees alike, and it will be of interest to those involved in employment law and disability discrimination cases.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

As Gummow and Hayne JJ made clear in X the inherent requirements of a particular position or employment are not judged by performance of work modified from that originally performed by an employee to assist his rehabilitation needs. Further the possibility that a position may be moulded to suit the needs of Mr Cucanic on a permanent basis begs the questions examined above.Conclusion Having regard to the foregoing I answer the questions for determination as follows:· Mr Cucanic occupied the position of Storeworker Grade II in the performance of order assembler, filler, pick ups and stretch wrapping work in the dry grocery and general merchandising areas of IGA’s distribution centre at North Laverton (“the position”).· The inherent requirements of the position included all essential components of the position, that is, all the major tasks required to be performed by someone occupying the position. · Mr Cucanic, because of his physical disability (being an injury to his back) was unable to carry out the inherent requirements of the position. Consequently, as IGA has made out its defence under s 170CK(3), the Court will order that the application be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 627 OF 2003

BETWEEN:	DAVID CUCANIC APPLICANT
AND:	IGA DISTRIBUTION (VIC) PTY LTD (ABN 87 006 509 280) RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	20 SEPTEMBER 2004
PLACE:	MELBOURNE