Daccache v BOC Limited

Case [2020] FCA 485

FEDERAL COURT OF AUSTRALIA

Daccache v BOC Limited [2020] FCA 485

File number: WAD 79 of 2020
Judge: MCKERRACHER J
Date of judgment: 16 April 2020
Catchwords:

HUMAN RIGHTS – application under s 46PP(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) for orders preserving the status quo – where application brought after employment was terminated – where complaint to Australian Human Rights Commission pending – where no order sought as to payment of wages - whether a prima facie case established – whether applicant’s delay was justified – whether balance of convenience favoured relief

INDUSTRIAL LAW – termination of employment – where employee unable to work due to non-work injury for extended period – conflicting medical reports – reasonable adjustment termination claimed to be on the basis of unlawful discrimination pursuant to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth)

Legislation:

Age Discrimination Act 2004 (Cth) s 18

Australian Human Rights Commission Act 1986 (Cth) ss 46PF(1)(b), 46PG, 46PH, 46PO, 46PO(4)(c), 46PO(4)(d), 46PP, 46PP(1)(a)

Disability Discrimination Act 1992 (Cth) ss 4, 5, 5(1), 5(2), 15, 21A, 21B

Cases cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Carlsson v Ford [2019] FCA 584

Harcourt v BHP Billiton Iron Ore Pty Ltd (No 2) [2008] FMCA 1100

McIntosh v Australian Postal Corporation [2001] FCA 1012

Purvis v New South Wales (2003) 217 CLR 92

Watts v Australian Postal Corporation (2014) 222 FCR 220

Date of hearing: 8 April 2020
Registry: Western Australia
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 62
Counsel for the Applicant: Ms L Saunders (by Webconference)
Solicitor for the Applicant: Communications Electrical Electronic Energy Information Postal Plumbing And Allied Services Union of Australia
Counsel for the Respondent: Mr R Millar (By Webconference)
Solicitor for the Respondent: HWL Ebsworth Lawyers

ORDERS

WAD 79 of 2020
BETWEEN:

MICHAEL DACCACHE

Applicant
AND:

BOC LIMITED ACN 000 029 729

Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

16 APRIL 2020

THE COURT ORDERS THAT:

1.The Respondent is to reinstate the Applicant’s employment to the position he held with it as at 16 March 2020, and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of these orders.

2.The Respondent is not to dismiss the Applicant from the employment specified in Order 1 above until the Applicant’s complaint to the Australian Human Rights Commission of 16 March 2020 (the Complaint) is:

(a)withdrawn pursuant s 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); or

(b)terminated by the President pursuant to s 46PF(1)(b) and s 46PH of the AHRC Act; or unless

(c)the Court orders otherwise.

3.Liberty to apply on two days’ notice.

4.Costs be reserved.

5.Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment…

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Details
AGLC
Daccache v BOC Limited [2020] FCA 485
Case
[2020] FCA 485
Decision Date

CaseChat Overview and Summary

In Daccache v BOC Limited, the Federal Court considered an application by the applicant, Mr Daccache, for orders preserving the status quo in relation to his employment with the respondent, BOC Limited. The applicant sought reinstatement to his position as a production operator, which he had held until his employment was terminated on 16 March 2020. The applicant had been absent from work since April 2019 due to a shoulder injury sustained in a car accident in June 2018. The application was made under section 46PP(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) after a complaint to the Australian Human Rights Commission had been lodged on 16 March 2020, alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

The court had to decide whether Mr Daccache had established a prima facie case of unlawful discrimination, whether his delay in bringing the application was justified, and whether the balance of convenience favoured granting the relief sought. The court found that the applicant had established a prima facie case of unlawful discrimination based on disability and age. The court also found that the applicant’s delay in bringing the application was not fatal to his claim, as the balance of convenience favoured granting the relief sought. The court considered that the applicant would suffer significant hardship if the relief was not granted, while the respondent would not suffer significant prejudice if the relief was granted. The court also noted that there was evidence that at least one of the applicant’s superiors would be happy to have him back at work.

The court ordered that the respondent was to reinstate the applicant to his position as a production operator and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of the orders. The court also ordered that the respondent was not to dismiss the applicant until the complaint to the Australian Human Rights Commission was withdrawn, terminated, or the court otherwise ordered. The court reserved costs and granted liberty to apply on two days' notice. The orders and reasons for judgment were made and published from chambers.

Orders

Orders of the court

1. The Respondent is to reinstate the Applicant’s employment to the position he held with it as at 16 March 2020, and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of these orders.

2. The Respondent is not to dismiss the Applicant from the employment specified in Order 1 above until the Applicant’s complaint to the Australian Human Rights Commission of 16 March 2020 (the Complaint) is:

(a) withdrawn pursuant s 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); or

(b) terminated by the President pursuant to s 46PF(1)(b) and s 46PH of the AHRC Act; or unless

(c) the Court orders otherwise.

3. Liberty to apply on two days’ notice.

4. Costs be reserved.

5. Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relief sought by Mr Daccache is opposed by BOC. Although BOC accepts that there is an arguable case under the DDA, it rejects the alternative claim that there is any arguable case under the ADA and contends that the balance of convenience strongly favours granting no relief. In particular, BOC asserts that Mr Daccache would get no benefit from the relief that he seeks, while BOC would be exposed to various risks. EVIDENCE Mr Daccache relies on his affidavit of 8 April 2020 and the affidavit of his solicitor, Ms Skelding filed on 3 April 2020. The later affidavit was received without objection but I am mindful that BOC has not had an opportunity to respond to much of it. I take that into account by focussing mainly on the record of contemporaneous documents. BOC relies upon an affidavit of Mr Nguyen, BOC’s solicitor of 7 April 2020. The background from that affidavit material is not substantially in dispute and, as will be seen, a matter to which I give considerable weight is that the parties are not at ‘logger heads’ in any personal sense. Indeed, there is some preliminary evidence that at least one of Mr Daccache’s superiors would be happy to have him back at work. BOC’s position is that the decision to terminate Mr Daccache’s employment is based on sound medical advice which indicates that Mr Daccache is unable to carry out the inherent requirements of his employment. As will be seen, the preponderance of medical advice, in my view at least as it stands at this stage, suggests to the contrary. The common ground from the affidavits establishes that Mr Daccache is a 62 year old, left-handed man. He was first employed by BOC on 1 October 2008 as a production operator. Before his employment with BOC, in 2004, he suffered an injury to his right shoulder from a car accident. The injury required surgery. He made a complete recovery from that injury. Prior to April 2019, he was earning $85,631 per year based on his classification with BOC under the BOC Limited (Perth Operation Centre) Enterprise Agreement 2018 as a level 3 operator with 14 competency units. His duties involve, in simple terms, loading, processing and filling gas cylinders of various sizes. The work involves lifting weights of up to about 5 kg, with a degree of repetition varying from area to area. The area requiring the most repetition is the sort dock, where incoming gas cylinders are unloaded from pallets. It is an area where about half of Mr Daccache’s colleagues do not work at all in some cases due to a lack of training, and in others, due simply to personal preference given the nature of the work. Mr Daccache reports no difficulty in performing these duties before January 2019 and, in particular, no issues arising with his neck or shoulders. In June 2018, he was involved in a car accident, which caused an injury to his right shoulder. He worked as normal until January 2019, when he began experiencing significant pain, leaving him unfit to work. From April 2019, he has been on leave without pay.

Decision

Reasons for decision

In my view, that objective is entirely consistent with the purpose of the Act.CONCLUSION In my view, the relief sought by Mr Daccache should be granted. I therefore make the following orders:1.The Respondent is to reinstate the Applicant’s employment to the position he held with it as at 16 March 2020, and treat him for the purposes of continuity of employment as having been employed in the period from 16 March 2020 to the date of these orders.2.The Respondent is not to dismiss the Applicant from the employment specified in Order 1 above until the Applicant’s complaint to the Australian Human Rights Commission of 16 March 2020 (the Complaint) is: (a)withdrawn pursuant s 46PG of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); or(b)terminated by the President pursuant to s 46PF(1)(b) and s 46PH of the AHRC Act; or unless(c)the Court orders otherwise.3. Liberty to apply on two days notice.4. Costs be reserved.5.Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

Ratio Decidendi

Legal Principle Established

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