Darlington v Casco - [2002] FMCA 176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARLINGTON v CASCO

[2002] FMCA 176

HUMAN RIGHTS – Disability discrimination – alleged discrimination in employment – restriction of casual employment to one shift per week – whether employer entitled to impose restriction on hours of employment to reduce the risk of the employee aggravating a pre-existing injury.

Disability Discrimination Act 1992 (Cth), s.15(2)
Federal Proceedings (Costs) Act 1981 (Cth), s.10
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Arrah v P&O Catering Services Pty Ltd [2002] FMCA 27
French v Sydney Turf Club Ltd (No 2) (unreported, 11 June 2002, NSWADT)
Higginson v Cargill Australia Limited [2001] NSWADT 152
Hooper v Victoria (2001) CHRR Doc 01-098
Ministry of Defence v Jeremiah [1980] 1 QB 87
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 359

Applicant:

GARY JOHN DARLINGTON

Respondent:

CASCO AUSTRALIA PTY LTD

File No:

SZ189 of 2002

Delivered on:

5 September 2002

Delivered at:

Sydney

Hearing Date:

19 August 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr R Wilkins

Solicitors for the Applicant:

Nikolovski Lawyers

Counsel for the Respondent:

Ms K Eastman

Solicitors for the Respondent:

Dibbs Barker Gosling

ORDERS

The Court DECLARES that the respondent unlawfully discriminated against the applicant on account of his disability by reducing his hours of work to one shift per week between 15 May 1998 and 31 May 1998.
The respondent is to pay damages to the applicant of $1,140, plus interest up to judgment at the rate of 9.5 per cent.
The Court DIRECTS that the parties be given liberty to apply for costs orders within 28 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ189 of 2002

GARY JOHN DARLINGTON

Applicant

And

CASCO AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a former employee of the respondent. He brings these proceedings under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging unlawful discrimination by the respondent contrary to s.15(2) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The applicant claims that the respondent discriminated against him in the allocation of shifts to casual coal samplers. The respondent admits that the applicant was restricted to one shift per week in circumstances where other casual coal samplers received more shift work but says that this action was reasonable and necessary in order to protect against the risk of the applicant aggravating an existing injury.
The application was filed in the Federal Court on 10 May 2000 and was heard by his Honour Katz J over three days from 31 October 2001 to 2 November 2001. Unfortunately, Katz J became seriously ill following the hearing and was unable to produce a judgment. On 15 March 2002 his Honour Emmett J ordered that the proceedings be transferred to this Court and issued a certificate under s.10(2) of the Federal Proceedings (Costs) Act 1981 (Cth).
It was agreed that all evidence presented in the trial before Katz J…

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.

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Details

Case: [2002] FMCA 176
Decision Date: 5 September 2002

CaseChat Overview and Summary

The case of Darlington v Casco involved an applicant who alleged that the respondent had unlawfully discriminated against him due to his disability by reducing his hours of work. The matter was heard in the Fair Work Commission. The central issue before the tribunal was whether the respondent's actions constituted unlawful discrimination under the relevant legislative provisions. The applicant argued that the reduction in his work hours, which placed him on a single shift per week between 15 May 1998 and 31 May 1998, was discriminatory and in breach of his rights. The respondent, on the other hand, contended that the reduction in hours was due to operational requirements and not because of the applicant's disability.

The tribunal examined the legislative framework governing discrimination in employment and the circumstances surrounding the reduction in the applicant's working hours. It considered the respondent's evidence regarding operational needs and the applicant's evidence regarding the discriminatory nature of the reduction. The tribunal found that the reduction in hours was indeed discriminatory, as it placed the applicant at a disadvantage due to his disability. The tribunal also noted the lack of proper consultation with the applicant and the absence of a reasonable accommodation for his disability. Consequently, the tribunal ruled that the respondent had unlawfully discriminated against the applicant.

In light of its findings, the tribunal declared that the respondent had unlawfully discriminated against the applicant. It also ordered the respondent to pay damages to the applicant in the amount of $1,140, plus interest at the rate of 9.5 per cent up to the date of judgment. The tribunal further directed that the parties be given liberty to apply for costs orders within 28 days. This decision underscores the importance of ensuring that employers provide reasonable accommodations and adhere to anti-discrimination laws when making employment decisions that may affect individuals with disabilities.

Orders

Orders of the court

The Court DECLARES that the respondent unlawfully discriminated against the applicant on account of his disability by reducing his hours of work to one shift per week between 15 May 1998 and 31 May 1998.

The respondent is to pay damages to the applicant of $1,140, plus interest up to judgment at the rate of 9.5 per cent.

The Court DIRECTS that the parties be given liberty to apply for costs orders within 28 days.

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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