Daccache v BOC Limited

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that the respondent was not to dismiss the applicant until the complaint to the Australian Human Rights Commission was withdrawn, terminated, or the court otherwise ordered.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.