FEDERAL COURT OF AUSTRALIA
Daghlian v Australian Postal Corporation [2003] FCA 759
ANTI-DISCRIMINATION LAW – employment originally in public service – physical disability of employee by reason of bodily malfunction or malformation – public service later corporatised all premises remodelled – chair policy banning stools introduced for counter employees – employee removed from employment at counter upon basis of chair policy introduced by corporatised body – placed on long service leave – upon expiration of long service leave employment purportedly terminated – whether enforcement of chair policy not reasonable in circumstances of disabled employee – whether disabled employee unable to carry out inherent requirements of particular employment – whether facility in form of chair/stool required by disabled employee and not required by employees without disability imposed unjustifiable hardship on employer.
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(i) and 46PO(1) and (4)
Disability Discrimination Act 1992 (Cth) ss 3, 6, 11 and 15
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) s 21Scott & Anor v Telstra Corporation Limited (1995) EOX 92-717
Scott and Bernadette Finney v The Hills Grammar School [1999] HREOC 14 (unreported, 20 July 1999)
The Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 61 ALD 619
Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor (2000) 180 ALR 635
X v The Commonwealth (1999) 200 CLR 177
Waters & Anor v Public Transport Corporation (1991) 173 CLR 349
Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303
Qantas Airways Ltd v Christie (1998) 193 CLR 280SARAH DAGHLIAN v AUSTRALIAN POSTAL CORPORATION
N 1479 OF 2001
CONTI J
23 JULY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1479 OF 2001
BETWEEN:
SARAH DAGHLIAN
APPLICANTAND:
AUSTRALIAN POSTAL CORPORATION
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
23 JULY 2003
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1.The respondent has engaged in indirect disability discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth) by:
(i)the imposition of a term or condition of her employment that she not be seated at the retail counter at the Manly Post Office for intermittent rest or at all;
(ii)the subsequent discontinuance of her location of employment at the Manly Post Office, which she had held for about eleven years, and her deployment to Australia Post’s head office at Strawberry Hills for the period of six days ending 23 February 2001, with a view to her possible further deployment to another post shop in the Sydney metropolitan area in the event that an administrative position, and not a retail counter position, might become available for her;
(iii)the subsequent classification of the applicant onto sick leave from 27 February 2001, upon the terms and conditions of Australia Post’s letter of 23 February 2001; and
(iv)the subsequent absence of provision of any such employment position reasonably proximate to her location of residence in Manly.
THE COURT…
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- Case
- [2003] FCA 759
- Decision Date
CaseChat Overview and Summary
The court had to decide whether Australia Post's refusal to provide Daghlian with a stool amounted to a breach of occupational health and safety obligations. This involved examining the policy formulated by Australia Post regarding the provision of chairs and stools at retail counters, and whether the policy was applied fairly and in accordance with the relevant occupational health and safety laws. The court also had to consider whether the policy itself was lawful and whether Daghlian's exclusion from the scheme of providing stools for medically restricted staff was justified.
The court found that Australia Post's policy, which disallowed staff from performing counter duties from a seated position, was lawful. However, the court concluded that the policy did not preclude the provision of a stool for rest purposes to medically restricted staff, provided certain conditions were met. Daghlian satisfied the criteria for the provision of a stool, yet Australia Post refused to provide one, leading the court to find that Daghlian's occupational health and safety rights had been breached. Consequently, the court ordered Australia Post to pay Daghlian's costs of the proceedings and directed that the matter be re-listed for assessment of compensation.
Orders
Orders of the court
1. The respondent pay the applicant’s costs of the proceedings.
2. The proceedings be re-listed by the applicant for directions as to assessment of compensation.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: CONTI J
About two or three years following the 1996 structural alterations to Manly Post Office, Australia Post again redesigned and refurbished the lay-out of the Manly Post Office, and the ‘island’ retail counter was removed and a new counter installed. Counsel for the applicant described the latter as a ‘traditional counter’. The applicant was designated a work area at one end of the counter, with the consequence, so counsel for the applicant contended, that no other employee needed to pass behind the applicant’s workstation. The applicant testified that she was allowed to continue to use her stool during those years of further structural change, her stool (being apparently still identical to that which she had been using at least since 1991) being placed ‘away from the counter’, so as to minimise any ‘perceived trip hazard’, to adopt the applicant’s descriptions. There is no evidence of any offer having been made by Australia Post to the applicant to replace that apparently antiquated form of seating. No other employee, the applicant asserted, ever needed to walk behind her workstation, and none of her fellow employees, she further asserted, ever tripped on her stool on any occasion. She said that she continued to stand for part of her working hours, and to ‘move into the retail space when necessary’, doubtless to serve members of the public at the retail counter. Moreover the structural change did not carry in its wake the removal of the trolleys used by the counter staff for the transportation of parcels to and from the mailroom located behind the space where the counter staff, including the applicant, were stationed, notwithstanding that the wheels on the trolleys could constitute a trip hazard, a matter which was common ground in the evidence of the parties to the proceedings.Australia Post executive’s deliberations upon and formulation in 1999 of a policy on the provision of chairs and stools at retail counters Prior to 12 May 1999, Australia Post’s Human Resources Department in New South Wales had set about the consideration or formulation of policy on the utilisation of ‘chairs/perch stools’ at its retail counters for medically restricted staff. On that day, the following conclusions were reached by officers of the Department (as recorded by the Group Manager Human Resources):‘1.Staff will not be permitted to perform Retail counter duties from a seated position. This advice will be clarified in the revised National Policy on the provision of chairs for employees performing counter duties in retail outlets.2.Under certain circumstances, outlined below, a chair or stool – positioned away from the counter – may be provided for medically restricted staff on which to intermittently sit for rest purposes while not serving at the counter. Three criteria must be satisfied for the provision of the chair:·That there is sufficient clear space for provision of the chair without encroachment of working space or staff access/egress;·That there is sufficient medical evidence supporting the need for seated rest by the affected staff member;·That the facility is able operationally to accommodate the chair and other issues associated with the requirement of the affected staff member to intermittently sit and rest.’It was foreshadowed that those factors would be incorporated into a revised national policy for the provision of chairs to employees performing counter duties in retail outlets, which was to be distributed for comment in draft form prior to general release.