FEDERAL MAGISTRATES COURT OF NAUSTRALIA
| DRURY v ANDRECO HURLL REFRACTORY SERVICES PTY LTD (NO.4) | [2005] FMCA 1226 |
| HUMAN RIGHTS – HREOC – Disability Discrimination and Victimisation in Employment – where the applicant is a skilled labourer in the refractory industry – where the applicant had suffered an industrial injury and received workers compensation for 2 years – where the applicant made a complaint under the HREOC Act of disability discrimination – where the employer received evidence that the applicant was fit to return to work – where the applicant subsequently was not offered work by the respondent – whether there is a causal relationship between the alleged unlawful conduct and the disability – where the applicant was alleged to be a difficult employee – whether the conduct of the applicant meant that the respondent was entitled not to provide the applicant further employment – whether the respondent could have found employment for the applicant – whether the applicant’s letters to the respondent were threatening. DAMAGES – Whether the applicant was under a “duty” to mitigate the loss he experienced following termination of his employment – whether the applicant experienced a “loss of opportunity” – nature of general damages for victimisation. |
| Disability Discrimination Act 1992, ss.4, 15, 17, 42 Workplace Relations Act 1996, ss.170CE, 170CC(1) Copyright Act 1968, s.115(4)(b)(1a) Workplace Relations Regulations 1996, reg.30B(1)(b) |
| Raymond Drury v BHP Refractories Pty Limited IRCA 950276 16 June 1995 The Commonwealth of Australia v Amann Aviation Pty. Limited (1992) 174 CLR 64 |
| Applicant: | RAYMOND DRURY |
| Respondent: | ANDRECO HURLL REFRACTORY SERVICES PTY LIMITED |
| File Number: | SYG55 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 & 19 July 2005, 19 August 2005 |
| Date of Last Submission: | 19 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Shoebridge |
| Solicitors for the Applicant: | Taylor & Scott |
| Counsel for the Respondent: | Ms C Ronalds SC |
| Solicitors for the Respondent: | Cutler Hughes & Harris |
ORDERS
The respondent pay to the applicant the sum of $5,000 damages for breach of section 42 of the Disability Discrimination Act 1992 (Cth).
The respondent pay to the applicant by way of special damages a sum to be agreed, or failing agreement to be determined by a Registrar of this court, equivalent to the amount earned by a Grade 1 labourer on travelling crew for the duration of the respondent’s contract at BHP Whyalla, South Australia, referred to in the proceedings.
The respondent pay the applicant’s costs to be calculated in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG55 of 2005
| RAYMOND DRURY |
Applicant
And
| ANDRECO HURLL REFRACTORY SERVICES PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
These proceedings are brought as a complaint of discrimination in employment in breach of s.15 of the Disability Discrimination Act 1992 (“DDA”) and victimisation contrary to s.42 DDA. The respondent denies employment and says that if there was any discrimination, which it denies, it would constitute discrimination contrary to s.17 DDA which applies to contract workers.
The respondent denies that its refusal to provide the applicant with employment was a denial made in circumstances which would bring it within s.42. The applicant sought at the commencement of the proceedings to limit the period during which it was alleged that unlawful discrimination or victimisation had taken place to a period between 5 May 2004, when the respondent received evidence that the applicant was fit to return to work from an industrial injury that had placed him on workers compensation for the previous two years, and 2 July 2004 after which date the applicant filed a complaint with the Human Rights and Equal Opportunity Commission. The applicant also relied upon the s.4 interpretation of the meaning of disability as including:
“(b)Total or partial loss of a part of the body
(e)The malfunction, malformation or disfigurement of a part of a person’s body including the disability that:
(i)previously existed but no longer exists; or
(k)is imputed to a person.”
History and Evidence
The applicant is a skilled labourer in the refractory industry. He has worked in that industry for approximately twenty seven years. He provided the court with a list of jobs upon which he worked over a long period of time as Exhibit 1. The applicant generally worked as a member of what is known in the industry as a travelling crew. Refractory work involves the stripping down of heavy industrial furnaces and similar installations and relining. There are two main areas of work, maintenance and replacement. Maintenance crews are usually permanent but whilst they may be employed by companies such as the respondent their workplace will actually be at the premises of industrial companies such as BHP. Maintenance work is carried out at various times including shutdowns. If the requirement for maintenance is particularly heavy at any one time a travelling crew member may be sent down to assist. Most travelling crew work is carried out for specific jobs e.g. for the renewal of the lining of furnaces. Jobs can take between a few weeks and a few months. The industry is not large and there is a pool of approximately 500 men available to undertake travelling crew work at any one time. There are three grades of labourers and then there are other specialists. The lowest grade of labourer is a grade 1 labourer. But even a grade 1 labourer is expected to have other tickets such as hoist drivers.
There is a special section of the CFMEU Building Award directed at the refractory industry. The existence of travelling crew and non permanent workers is recognised. There is provision in the award for casual labour at pay rates higher than the normal but without any ordinary award benefits such as sick pay, holiday pay, long service leave etc. Any casual labourer who works more than approximately thirty hours per week is entitled to all the benefits of a permanent employee except that he is expected to terminate the employment at the end of the job. There is a difference of opinion between the parties as to whether such a labourer is hired only for a specific job or whether he becomes a de jure permanent employee who voluntarily relinquishes that employment at the end of each assignment.
Mr Drury began work for one of the predecessor companies of the respondent. He did not work exclusively for that company or for the respondent company. From time to time he would work for other refractory companies or for a major industrial concern such as BHP. In the early 1990s the applicant began to work for a division of BHP Refractories Pty Limited on various jobs that that company had won. This work was on the same basis as the work carried out for the respondent and its predecessors. Mr Drury’s employment with BHP (R) came to an end in 1994 after a dispute between himself and the company resulted in his termination. He was successful in certain proceedings before a Judicial Registrar of the Industrial Relations Court of Australia and in a review of the decision of the Registrar carried out by Wilcox CJ; Raymond Drury v BHP Refractories Pty Limited IRCA 950276 16 June 1995.
After his problems with BHP Mr Drury returned to work principally, although not exclusively, for the respondent. The applicant would work approximately nine months out of every year earning a wage which, up to 2002, averaged about $60,000 to $70,000 per year. On 4 February 2002 the applicant signed a four week contract with the respondent to work in New Zealand at BHP NZ Steel. During the course of that contract he suffered two accidents. The first was when a jack hammer fell on him and he suffered injury to his neck and back. The second accident was a journey accident which aggravated his neck and back injury. Mr Drury returned to work the same afternoon as the motor vehicle accident and visited the on site doctor who sent him for an independent medical assessment. He had physiotherapy and then returned to work on light duties until the end of the contract. Although he was certified fit for light duties there were no general light duties with the respondent and the applicant was on workers compensation for a period of two years. In the meantime two important events took place.
On 26 November 2002 Mr Drury made an application pursuant to s.170CE of the Workplace Relations Act 1996 in respect of the termination of his employment by the respondent. The respondent argued that the Commissioner had no jurisdiction to hear the complaint because the applicant was an employee engaged under a contract of employment for a specified task which could be excluded by the regulations from the operation of a specified provision of the Act pursuant to s.170CC(1). Regulation 30B(1)(b) of the Workplace Relations Regulations 1996 excludes from the operation of sub-divisions B, C, D, E and F of Division 3 of Part VIA of the Act an employee engaged under a contract of employment for a specified task. In a decision given on 26 November 2002 Commissioner Redman found that the applicant was an employee engaged under a contract of employment for a specified task and therefore he had no jurisdiction to consider the complaint.
The second matter was that in 2003 Mr Drury made a complaint to the Human Rights and Equal Opportunity Commission which was described in the report of the President as follows:
“You state that you have worked for Andreco-Hurll for 27 years, as a casual employee and that you injured yourself at work in March 2002. You state that Andreco-Hurll were advised of your injury but you allege that you were not provided with any alternative or light duties or any rehabilitation to assist you to return to your previous duties. You also allege that Andreco-Hurll terminated your employment as a result of your disability in March 2002.”
When that complaint was unable to be resolved by the Commission Mr Drury brought it to this court. The respondent brought an application for summary judgment which was heard by Driver FM who gave a decision on 1 March 2004; Drury v Andreco-Hurll Refractory Services Pty Ltd [2004] FMCA 398. His Honour accepted the arguments of the respondent and dismissed the application saying:
“[5] The President's delegate then sets out Andreco-Hurll's response to the complaint and the decision on it. In substance, the delegate of the President found that Mr Drury was not dismissed from his employment, but rather that his last contract of employment simply expired. The delegate also found that while Mr Drury was injured during the course of that employment, the employer acted appropriately and did not become aware of the extent of Mr Drury's disability until after the contract of employment expired. The complaint was terminated on the basis that the complaint was found to be lacking in substance.
[6] Mr Drury does not identify in his application now before this Court what sections of the DDA he relies upon. I surmise that he probably relies upon s.17(1)(b) and 17(1)(c). That would be consistent with the complaint he made to HREOC. However, Mr Drury, in the proceedings before this Court, as in the proceedings before HREOC, appears to be seeking to further litigate proceedings he commenced in the Australian Industrial Relations Commission. Mr Drury was unsuccessful in those proceedings on the basis that he was an excluded employee for the purposes of the Workplace Relations Act 1996 (Cth) because he was employed for a limited duration. Mr Drury contests that decision but he did not appeal against it.
[7] A complaint to HREOC and an application to this Court is not an appropriate vehicle to relitigate industrial relations proceedings. In my view, the available facts before me, including the decision of the AIRC annexed to the affidavit of Mr Evans, establish that Mr Drury was at the time he was injured a contract employee with the respondent and that he was not dismissed. The contract simply ran out. There is nothing in the material before me to indicate that the employer acted inappropriately up to the time the contract expired.
[8] In his oral submissions before me this afternoon Mr Drury complained that he has not been offered any more jobs with the respondent. I do not rule out the possibility that Mr Drury might be able to present a plausible claim of a breach of s.15(1) (b), (c) or that matter (a) of the DDA or possibly s.17(1)(a) of the DDA. “Employment” is defined in the DDA to include contract employment.
[9] However, that was not the complaint that Mr Drury made to HREOC. His complaint was one of dismissal from employment and a complaint of discrimination during the course of employment. He has focussed inappropriately on the decision of the AIRC when he would have been better advised to have focussed on the facts or circumstances of the alleged discrimination that were of real concern to him.
[10] If Mr Drury wishes to argue that he has been denied further employment by the respondent, it is open to him to make a fresh complaint to HREOC. I cannot hear that complaint in these proceedings because that was not part of the complaint he made previously to HREOC. Under s.46PO(3) of the HREOC Act the proceedings in the Court must arise out of the same or substantially the same facts as were alleged in the complaint to HREOC: Charles v Fuji Xerox Australia Pty Limited [2000] FCA 1531 at [37] to [39].
[11] I find that I have no jurisdiction to consider a claim by Mr Drury that he has been denied future employment on the basis of a disability. His claim that he has been dismissed from his employment must necessarily fail. His claim that he was discriminated against in the course of his employment is also almost certain to fail. In those circumstances it is in the interests of everybody, including Mr Drury, that the proceedings should be terminated now rather than left to a full hearing, which would be expensive for the unsuccessful party, probably Mr Drury.
[12] I will therefore grant the motion to dismiss the application on the basis that no reasonable course (sic) of action is disclosed.”
Mr Drury took the words of Federal Magistrate Driver to heart and waited until he was passed fit for work by a specialist medical practitioner employed on behalf of the respondent or its insurers. He had heard that the respondent had obtained a contract to work on glass tanks at Spotswood in Victoria. He claims to have considerable experience in working in glass tanks having done between 15 and 20 during his working life. Mr Drury determined to apply for work on this job as soon as he became fit. He received a progress Work Cover medical certificate stating that he was fit for pre injury duties from 27 April 2004. On 5 May 2004 he sent a letter to Mr David Evans, the general manager of the respondent attaching the certificate. The relevant parts of the letter are as follows:
“As from 27 April 2004 I am applying to be reinstated on travelling crew. I expect to be treated in same manor (sic) as before my injuries in allocation of jobs.
Before Commissioner (sic) Driver on 1 March he said although he did not find in my favour said in the event of me getting full clearance if my previous employer Andreco Hurll did not employ me I was then to take Andreco Hurll back to HROC (sic) and then commission. Any money owing to Andreco Hurll for court costs you can take out of my wages over an agreed period of time after re-employment.
Any jobs obtained and personnel employed after receipt of this letter will be subpoenaed if necessary if commission appearance is necessary.”
Mr Evans gave evidence. Under cross examination he agreed that the only part of the letter which he deemed to be offensive was the final paragraph relating to the subpoenas on other employees. Mr Evans considered that the letter was pressuring him to employ Mr Drury under the threat of litigation. Mr Drury’s position is that the letter only indicated that he intended to stand on his rights.
Mr Drury also spoke to a Mr Mepham. Mr Mepham is a long time employee of the respondent who had employed the applicant on jobs over many years. He deposed to the fact that he had known Mr Drury since 1986. Mr Mepham was in charge of the Spotswood job and also of another job at Whyalla in South Australia. At this time Mr Drury was living in Victoria quite near the Spotswood job. He did not receive any response to his letter to Mr Evans. Mr Evans’s evidence was that he had received it and was pleased to see that Mr Drury was able to return to work and gave the letter to Mr Mepham. Mr Mepham did not respond to Mr Drury directly for some time. Eventually Mr Drury brought in the CFMEU representative. There was a meeting between the representative and Mr Mepham. Mr Mepham’s evidence is that the meeting was about employment but not about the employment of Mr Drury. Mr Mepham deposed to the fact that the CFMEU were trying to impose employees upon the respondent for the Spotswood job and the respondent was resisting. At the end of the meeting Mr Doyle, the union representative, asked him about Mr Drury. Mr Mepham who believed that the union were wrong to try and impose employees upon him told Mr Doyle that he did not want to have Mr Drury imposed upon him either. Mr Doyle did not give evidence and I did not permit Mr Drury to give evidence of what Mr Doyle had said to him. Whilst I have some reservations about Mr Mepham’s evidence generally I am prepared to accept his version of these events.
Eventually Mr Drury got through to Mr Mepham at Whyalla. In his account of the conversation Mr Mepham told him that he could not employ him at Spotswood but that he would consider him for a job at Whyalla where a number of other people with whom Mr Drury had previously worked were employed. Mr Drury then sent a letter to Mr Mepham, the relevant parts of which are as follows:
“Advising what was said before Commissioner Driver (sic) 1.4.2004 transcript he stated that if I got a clearance certificate gave it to my employer Andreco Hurll and did not get employment bearing in mind my employment history and statements by the company that I had not been discriminated against because of my work injury or any other reason I was to return to HROC (sic) and it would be brought back before the commission.
Discrimination would then be very hard to defend (different result for sure).
I would be quite happy with the altered employment we discussed this morning Whyalla as opposed to Melbourne Spotswood even though I now live in Melbourne only ten minutes from job at the glass tank.
Ian I have not copy of letter with me at the moment but if you want a copy get Bulli office to fax it to Whyalla. In it it also states arrangements of paying back any money owed to Andreco Hurll. Hoping to hear from you shortly.
Yours faithfully
Raymond Drury
P S I don’t want any trouble I just want to work and will sign any papers necessary to achieve a peaceful solution. I am sick of courts which are not necessary. Thank you.”
The reference to “the letter” is the letter which Mr Drury sent to Mr Evans.
According to Mr Mepham’s evidence the job at Whyalla was “manned up”. Even at the time that he spoke to Mr Drury. He looked around to see whether he could fit Mr Drury in but he could not. It is his evidence that he told Mr Drury that and said that he would read the paperwork when it was sent and see what could happen.
Mr Drury’s version of the conversation was somewhat different. He claims that Mr Mepham said to him:
“Ray the company has said you are never to be employed again they would rather pay you off.”
And that Mr Drury then said:
“Well in that case I am going back to New South Wales to see HROC.”
After which Mr Mepham said:
“Ray, I will give you a job in South Australia if you want. I am running a shutdown at BHP Whyalla with Laurie Corduro, Freddie Rogenfelder and Darryl King.”
Mr Drury then said:
“Okay even though I only live ten minutes from the Spotswood job I will take the Whyalla job. I just want to get back to work.”
To which Mr Mepham responded:
“I will give you a call back and tell you when you can start.”
What is clear is that Mr Mepham did not call back Mr Drury that day or any day thereafter even though Mr Drury rang him frequently, both at the Whyalla landline and on Mr Mepham’s mobile. On 9 July Mr Drury sent a further letter to Mr Evans, the relevant parts of which are as follows:
“I am writing this letter to follow previous correspondence sent to you early May and fax sent to Ian Mepham in Whyalla in early June for which I have receipts. I would also include both faxes to refresh your memory.
I moved to Melbourne and have been living at 69 Kinterbury Drive St Albans, 15 minutes from job at Spotswood and I am a financial member of the CFMEU.
I applied for a job at Spotswood Shutdown. Fergal Doyle union organiser said when Ian Mepham came down to Melbourne he saw Fergal Doyle and told him that there was no way I would be employed by the company again. He Fergal Doyle told me to go back to NSW and get a copy of the transcript at court 1.4.2004. Magistrate Driver said as there was no discrimination and it was not because of my work history if I got medical clearance which I got and sent to you. If I didn’t get employment to come back to HREOC and charge you with discrimination. You would not know as you could not even be bothered to get a copy of the transcript. I know this because when I got my copy of my transcript no-one else had asked for a copy not interested. ( I told you this). Before leaving Melbourne I went to Melbourne office saw Paul, I then filled out paper work for application for Spotswood job. Paul gave me Ian Mepham’s mobile phone number. I rang him at first he said I was never to be employed by the company again. When I said I would go back to court on the advice of the Magistrate he then said he would give me a job at Whyalla as he, Laurie, Daryl and Fred Rogenfelder would love to have me on the job. He also rang Fergal Doyle from CFMEU and told him this. I have now run Ian Mepham’s mobile phone number [number given] at least 20 times no response also rang Fred Rogenfelder mobile [mobile given] he said on both occasions he passed message on to Ian Mepham also Peter Cross passed message on to Ian. I also rang Sydney office 3 times and got the brush off.
I now this was a play to get me away from the Melbourne job at Spotswood. He has no intention of giving me a job, (nor you). That job in Whyalla has been going for a fair while. I have given 3 contact Nos. The company Andreco Hurll, yourself or Ian Mepham has not attempted to call me. This will be shown by phone records. I also know since my medical clearance on 27.4.04 jobs have been done in Western Australia and Whyalla 100s employees. I will subpoena jobs done and employees used on these jobs, if necessary when go back to court.
I have now because of your refusal to contact me put in the Commission (HREOC) (sic) to investigate before going back to court.
I have always been on the travelling crew for Andreco Hurll and I will remain at my Newcastle address until this is sorted out.
I will not go onto Melbourne site or enlist support from fellow workers or attempt disruption to the Melbourne job. Fellow workers have family and I will not want any of my fellow workers penalised for supporting or risk their future employment because of me.
I just want to work, no courts if possible. If we can come to some satisfactory solution I will withdrawn my complaint to HEROC (sic). Otherwise I will let the court take its course of action. I assure you this time I will have legal representation this time.
Yours truly
Raymond Drury”
Mr Drury was as good as his word. He made a complaint to the Human Rights and Equal Opportunity Commission on 2 July 2004. Mr Drury has not worked since.
The evidence showed that between the time of Mr Drury’s accident and 2 July 2004 he had a number of communications with Andreco Hurll’s staff. Complaints about his manner were received. Mr Mepham also made it clear that he believed that Mr Drury had been threatening in his telephone conversation and insulting. Mr Evans deposed to an incident involving Mr Drury at an earlier stage in which he heard Mr Drury act in an abusive manner. Mr Drury gave evidence. It is quite clear that he is a man with a very short fuse. I am satisfied that there would have been a strong exchange of words between him and Mr Mepham on the day upon which Mr Drury spoke to Mr Mepham about the Spotswood and the Whyalla jobs. It is clear from Mr Drury’s history of litigation that he is not shy about enforcing what he considers to be his rights. I am sure that in the conversation with Mr Mepham he would have made it clear that unless he received employment he would take the matter back to HREOC because he was being discriminated against on the grounds of his disability or victimised because of his reference to HREOC.
It appeared at the commencement of these proceedings that the nature of Mr Drury’s “employment” was to be an important element in this case. It is still important for the purposes of deciding whether his claim properly comes within s.17 or s.15(1) of the DDA but after a concession from his counsel Mr Drury is no longer arguing that he had any ongoing right to re-employment by the respondent. Mr Mepham’s evidence went over Mr Drury’s skills and employment history. He talked about having completed the inductions for both the Spotswood and the Whyalla jobs before Mr Drury contacted him. He accepted that a bricklayer’s labourer such as Mr Drury was a person whose skills would reasonably be required on both of those jobs. He said the inductions for Whyalla had been done on 26 May. Mr Mepham denied that he had been aware that Mr Drury was fit for work in early May. This is contrary to the evidence given by Mr Evans. Mr Mepham said that he should have been told about this by the rehab co-ordinator Brett le Clerk. He was questioned about work that had been given to the company where travelling crews were required since March 2004 and agreed that work had been done in Gladstone, Queensland and in Young, New South Wales but stated that the company was down from a maximum workforce of approximately 450 to 200 or so, most of whom were now permanent. He thought there were only about 30 travelling crew being used. Mr Mepham also said that on the day on which he agreed he spoke to Mr Drury about the Whyalla job there were in fact two calls, one on his mobile phone and one on his office phone from a public call box. He said that both calls were abusive.
Mr Mepham gave me the strong impression that he was tailoring his answers to fit a preconceived position that Mr Drury was not a person that the company would wish to employ. He downgraded his skills and although he claimed that he looked for multiskilled employees he attempted to avoid a conclusion that Mr Drury, having a number of tickets and being a skilled sawman, was so skilled. He also attempted to avoid responsibility where it became inconvenient, thus he said he was not the major employer of new labour. Although he said the abuse was not important to him and that he was used to it he felt that that was a personal comment and it was not necessarily the view of the company.
In coming to a conclusion about the reasons for the non employment (to use that term in its most neutral sense) of Mr Drury I have also considered the evidence of Mr Evans. Mr Evans was a far more satisfactory witness than Mr Mepham. I do not think he had a particularly high opinion of Mr Drury as an employee, not because of his working ability but because of his attitudinal problems. I think that when he said he was pleased to hear that Mr Drury was pronounced fit for work this was more because he would cease to have to pay contributions to the workers compensation payments rather than because he would welcome him with open arms back into the workforce. Mr Evan’s evidence was that when he received Mr Drury’s first letter advising that he was fit for work he took it down to Mr Mepjham for action. But Mr Evans was more convincing than Mr Mepham in relation to the manning situation. I am satisfied from a combination of his evidence about workforce numbers and that of Mr Mepham that there probably was not any work for Mr Drury at Spotswood. I think he had just missed the cut on that job and that the best he could have hoped for was as some sort of reserve in any case anyone was injured or left.
In this regard I would accept the submission of Ms Ronalds that the proper time to look at the availability of work at Spotswood was when the travelling crew was first chosen. Any later date would have required the respondent to put another worker off from work he would have expected to be given. The evidence is that this was some 2 months prior i.e. a time before Mr Drury was passed fit for work. But Whyalla is a different matter. I am troubled by the fact that Mr Mepham denied being told about Mr Drury’s return to work by Mr Evans in early May and I am troubled by what appears to me to be a confirmation of the conversation deposed to by Mr Drury in the contemporaneous letter that he sent to Mr Mepham. Another concern that I have is that Mr Mepham never responded to any of the many telephone calls that Mr Drury made to him and Mr Evans never replied to his letters. Why did the company not come out straight away and tell him that they had no work because they were full manned? If they did not wish to employ him because he was aggressive, overbearing, rude or threatening why did they not say so? Whilst I am satisfied that the company did not have any concern about Mr Drury’s fitness and would not impute to them a wish not to reemploy someone who had been on workers compensation I am unable to be so sanguine about their reaction to his threats to take them to HREOC if he did not obtain employment. Likewise whilst I accept that the company thought Mr Drury a difficult employee from a conduct point of view I cannot entirely dismiss the possibility that part of the “difficulty” was his previous proceedings in this court and his HREOC complaint. After all, Mr Evans in a frank exchange said at [T 204]:
Court: I understand, thank you. Are you saying to me the sole reason that Mr Drury didn’t get a job when he told you that he’d come back and he was available was because there wasn’t a job? or was it because he’d been rude? or was it because he’d been on workers comp and you didn’t want to get any more problems with people on workers comp? or was it because or partly because he said he went to HREOC? What is the reason that he didn’t get a job, that you didn’t have a job? --- From the time ---
From when he told you that he was available for work until August, so a very short period of three months in 2004? --- From then ---
From then until the time he made the complaint? ---
Witness: 2 July, about seven weeks. In that period of time we were at maximum manning. The projects that we had that had started in that period had been committed to. I can honestly say to you the reason he didn’t get the job in that period was because we were at maximum manning. I can put my hand on my heart here and say I fully believe if Mr Drury had just given us an opportunity, a reasonable opportunity perhaps of three or four months he would most likely have started work with us if work had become available.
Court: Okay, I understand, if he had given you a reasonable opportunity, all right. Then he went and complained to the HREOC? ---
Witness: Yes.
Court: Then you say well because he complained to the HREOC we weren’t prepared to give him a job, is that right, after that?
Witness: For me it’s just a stand-off at that point.
If the managing director of the respondent makes it clear that once the applicant had carried out his threat to go to HREOC no employment would be offered the inference must be open that his previous conduct in going to HREOC and his threat to do so again influenced the decision not to offer him employment at Whyalla.
After Mr Drury made his second complaint to HREOC in July 2004 he was not provided with the opportunity for further work by the respondent. However, in December 2004 the respondent wrote to Mr Drury asking him to attend for a medical examination. The respondent’s evidence is that this medical examination was a necessary prerequisite for any further employment. They do not say that there was any employment available in December 2004 or that they would have given Mr Drury any available employment. Mr Drury did not attend the medical. He deposed that he only carried out what he was told to do by HREOC and Federal Magistrate Driver. Mr Drury did not ask the respondent to arrange a further medical.
The applicant claims he has not worked since he was pronounced fit for work in May 2004.
Discussion
The relevant sections of the DDA are set out below:
S.3 “ Disability” in relation to a person, means:
a)total or partial loss of the person’s bodily or mental functions; or
b)total or partial loss of a part of the body; or
c)the presence in the body of organisms causing disease or illness; or
d)the presence in the body of organisms capable of causing disease or illness; or
e)the malfunction, malformation or disfigurement of a part of the person’s body, or
f)disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that:
h) presently exists; or
i) previously existed but no longer exists; or
j) may exist in the future; or
k) is imputed to a person.5 Disability discrimination
(1) For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
15 Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
17 Discrimination against contract workers
(1) It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's disability or a disability of any of the contract worker's associates:
(a) in the terms or conditions on which the principal allows the contract worker to work; or
(b) by not allowing the contract worker to work or continue to work; or
(c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d) by subjecting the contract worker to any other detriment.
42 Victimisation
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal OpportunityCommission Act 1986 ; or
(d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
In order for the applicant to establish his claim under s.15(1) or alternatively under s.17(1) it is necessary for him to establish a causal relationship between the alleged unlawful conduct and the disability: Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at [359]; HREOC v Mount Isa Mines Ltd (1993) 46 FCR 301 per Lockhart J at [321]; Macedonian Teachers Association of Victoria Inc v HREOC & Anor [1998] 1650 FCA. The unlawful conduct alleged in this case would either be discrimination in the arrangements made for the purpose of determining who should be offered employment or in determining who should be offered employment under s.15 or in not allowing the applicant to work or continue to work under s.17. The applicant has provided me with no direct evidence of such a causal connection. There are no claimed conversations which refer directly to his injuries. He did not have a disability at the time he made his applications for work, so the only claim that he would have in this connection would be in relation to his past injuries. The applicant has produced no written evidence from the respondent’s records which would indicate any decisions relating to him being affected by his disability and the evidence of oral communication is put at its highest at paragraph 30 of his own affidavit of 14 April 2005 where he deposes to the following conversation:
“RD: I am ringing you up about my work situation.
IM:[Mr Mepham] Ray the company has said you are never to be employed again. They would rather pay you off.
RD: Well in that case I am going back to New South Wales to see HREOC.”
There is no reference in that part of the conversation to the reason why he was never to be employed again. The conversation continues:
“RM: Ray I will give you a job in South Australia if you want. I am running a shutdown at BHP Whyalla with Laurie Cordura, Freddie Roenfelder and Darryl King.”
It seems to me that the only possible inference that I can draw from this conversation, if I am prepared to accept it, is that the applicant’s injury was not a matter of any concern whatsoever to the respondent. Additionally I have the evidence of Mr Evans which I have already discussed. There was nothing in the cross examination of either him or Mr Mepham which would lead me to a finding that Mr Drury’s disability was the reason, or one of more than one reason, why he was not offered further employment with the respondent. The applicant’s case for direct disability discrimination fails for this lack of evidence and my inability to draw any inferences favourable to the applicant from what evidence there was.
The victimisation case is not so easily dismissed. Although the period in which the victimisation took place has been identified as between May and July 2004 I can look at the prior and subsequent conduct of the respondent for an indication whether this corroborates the applicant’s evidence that he did suffer a detriment because he had previously made a complaint about the respondent to HREOC and followed that up with proceedings in this court. The applicant is equally entitled to a verdict if I find that he suffered a detriment because he proposed to make a complaint to HREOC, which he undoubtedly did in his correspondence and telephone conversations with Mr Mepham and Mr Evans. Again I am required to draw inferences in order to come to such a conclusion. The respondent argues that such inferences are not open on the evidence. It says that it is clear that Mr Drury was a very difficult employee who had caused problems on other occasions and to whom they were perfectly entitled not to provide further employment. But I am not sure that the evidence in this regard is so clear. Mr Drury challenged the respondent to produce any employment record of his that would indicate problems on the job and none was forthcoming. Mr Evans gave evidence of an overheard conversation concerning light duties that does not place Mr Drury in an entirely flattering light. But that was not conduct at work i.e. on the job site, and it should be remembered that Mr Drury had worked (on and off) for the respondent for very many years. I have little doubt that Mr Drury was aggressive in his conversation with Mr Mepham. I can understand that the company might have been disturbed by his correspondence with them. But that correspondence when read in context and as a whole is no more than a firm assertion of Mr Drury’s rights. The Act does not excuse the respondent to a victimisation claim because the proposal to make a complaint to HREOC is couched in intemperate words. In this particular case, and again reading the correspondence as a whole, I do not think that it could be so described. Certainly Mr Drury says that if he is not offered work he will take the matter up again with HREOC and certainly he suggests he will be calling witnesses and requiring documents to be produced, but he also says that he doesn’t want to go to court and he wants to settle the matter by getting back his job and by using the money earned from that job to repay the company the costs he owes them for the previously aborted proceedings before Driver FM.
Mr Mepham denied telling Mr Drury that the company did not wish to re-employ him and he denied actually offering Mr Drury a place on the team at Whyalla. He refined that to saying that he would think about trying to find him such a place. I have already set out my concerns about the satisfactoriness of Mr Mepham’s evidence and have noted what I call the “corroboration” of Mr Drury’s position by his letter. To the extent that it might be said that that letter was self serving I note that the company did not bother to respond with any denial. I have said that Mr Drury was a difficult witness and had a short fuse. But in relation to this particular matter I prefer his evidence to that of Mr Mepham. I believe that the conversation that they had, heated as it was, went along the lines described by Mr Drury in his affidavit. That being the case one has to look for a reason why the company would not re-employ Mr Drury and it is not difficult to infer that one of the reasons was his previous conduct in taking the company to HREOC and this court and his threat to repeat that action.
I should make it clear that I am satisfied that Mr Mepham had the ability to provide Mr Drury with work at Whyalla and that, but for the company’s policy in respect to him he would have been found such work. I do not think there is any utility in trying to guess what happened after the telephone conversation or whose decision it was not to take the matter further. It suffices that a job could have been found and was not provided. One reason for that failure was a matter described in s.42 of the DDA.
The finding that I have made above does not conclude the matter. I must also find that Mr Drury suffered a detriment within the specified time. The respondent’s evidence is that there was no work available. The two relevant jobs at Spotswood and Whyalla were fully manned. I have accepted that in relation to Spotswood this is probably correct, at least insofar as the men had already been chosen. But I have not accepted this in relation to Whyalla. The respondent did not employ the applicant at Whyalla. That was a detriment and thus the claim has been made out.
Damages
The applicant puts his claim for damages in the following way:
i)General Damages in relation to the unlawful discrimination in the sum of $20,000;
ii)Compensatory damages in the past from 5 May 2004 to date at the rate of $820 per week (being 50% of the average weekly net earnings of the applicant from the respondent in FY 2001/02) over 68 weeks in the sum of $55,760;
iii)From 15 August 2005 to 18 June 2013 (when the applicant reaches retirement age of 65) at $275 per week being 8 years on 3% tables being $275 x 370 x 0.85 in the sum of $86,487; and
iv)Interest on past damages.
The evidence in support of the applicant’s claim for economic loss is a schedule found as Exhibit 4 of the periods of employment with the respondent and its predecessors. He has also produced group certificates from the years 1996 to 2002 from which the average number of weeks worked and his gross and weekly wages can be deduced. The table, which is found in the applicant’s written submissions, is reproduced below. The payments are payments made by the respondent to the applicant. In the period 1 July 2001 to 31 March 2002 the applicant received the sum of $39,374.00 net from the respondent representing an average weekly wage of $1,650.00 net.
| Financial Year | Number of Weeks | Gross Wage | Weekly Wage (average) |
| 1996/97 | 40 | $53,336 | $1,333 |
| 1997/98 | 28 | $66,777 | $2,348 |
| 1998/99 | Nil | Nil | n/a |
| 1999/00 | 21 | $45,349 | $2,159 |
| 2000/01 | 20 | $25,991 | $1,300 |
| 2001/02 | 24 (of 39 weeks) | $47,872 | $1,995 |
| Average in years worked | 26.6 weeks | $47,865 | $1,800 |
The applicant accepts that he did not work consistently for the respondent. He accepts that he worked for other employers in the refractory industry. He accepts that at the most he wished to work only nine months per annum and the evidence indicates that he preferred to work on jobs which provided twelve hours shifts rather than those which provided a standard eight hour shift. The respondent in its written submissions produced an amended version of exhibit 4 which is reproduced below.
AMENDED VERSION OF EXHIBIT 4
| Andreco Hurll Refractory Services Pty Limited | ||||
| Periods of employment | Weeks | |||
| Raymond Drury | ||||
| Commenced | Terminated | On for | Off for | |
| Andreco Pty Ltd | 15/07/1985 | 3/08/1985 | 3 | 21 |
| 6/01/1986 | 9/01/1986 | 4 days | 10 months | |
| 25/11/1986 | 16/12/1986 | 3 | 2 ½ years | |
| 26/04/1989 | 5/06/1989 | 6 | 2 | |
| 19/06/1989 | 30/06/1989 | 2 | 2 years | |
| Andreco Hurll Refractory Services Pty Limited | ||||
| 1/07/1991 | 19/08/1991 | 7 | 2 | |
| 31/08/1991 | 18/10/1991 | 7 | 11 | |
| 2/01/1992 | 11/02/1992 | 6 | 8 | |
| 6/04/1992 | 30/06/1992 | 12 | – | |
| 1/07/1992 | 16/12/1992 | 23 | 3 | |
| 6/01/1993 | 12/01/1993 | 1 | 9 | |
| 29/05/1993 | 15/06/1993 | 3 | 9 | |
| 20/08/1993 | 31/08/1993 | 2 | 15 | |
| 20/12/1993 | 4/01/1994 | 2 | 28 | |
| 20/07/1994 | 4/10/1994 | 10 | 30 | |
| 9/05/1995 | 30/06/1995 | 7 | 61 | |
| 2/10/1996 | 24/07/1997 | 38 | 2 | |
| 5/08/1997 | 5/08/1997 | 1 day | 6 | |
| 15/09/1997 | 13/10/1997 | 4 | 4 | |
| 11/11/1997 | 19/12/1997 | 4 | 6 | |
| 30/01/1998 | 6/04/1998 | 9 | 2 | |
| 23/04/1998 | 29/04/1998 | 1 | 2 | |
| 14/05/1998 | 9/06/1998 | 4 | 74 | |
| 12/11/1999 | 22/12/1999 | 6 | 2 | |
| 4/01/2000 | 17/01/2000 | 2 | 3 | |
| 7/02/2000 | 20/03/2000 | 6 | 1 | |
| 27/03/2000 | 13/05/2000 | 6 | 7 | |
| 21/01/2000 | 30/06/2000 | Various casual days – not continuous | ||
| 4/07/2000 | 14/07/2000 | 2 | 1 | |
| 21/07/2000 | 12/08/2000 | 3 | 2 | |
| 24/08/2000 | 15/10/2000 | 7 | 10 | |
| 2/01/2001 | 19/02/2001 | 6 | 3 | |
| 5/03/2001 | 5/04/2001 | 4 | 1 | |
| 11/04/2001 | 3/08/2001 | 16 | 1 | |
| 10/08/2001 | 12/10/2001 | 8 | 18 | |
| 25/03/2002 | 31/02/2002 | 5 | ||
The respondent’s answer to the claim for loss of earnings is threefold. First, it argues that the industry has gone through a contraction and that the number of casual employees has severely reduced since 2002. Employment by the company was at its highest level ever from March to July 2002 and has been tailing off thereafter. The evidence was that there was now only a need for approximately thirty casual labourers on the travelling crews and that not all of them would be at the grade 1 labourer level. This would mean that Mr Drury’s opportunities for consistent employment would be severely reduced. The second point is that the company asked Mr Drury to undertake a medical examination in December 2002 but he did not do so. A medical examination is a pre-requisite to employment and once Mr Drury had declined to undertake the medical the respondent’s liability to continue to employ him ceased. Finally, the respondent argues that Mr Drury has shown no evidence that he has made any attempt to mitigate such losses as he may have suffered by seeking employment from other refractory companies or by using his skills as a general labourer. In this regard the evidence is that Mr Drury is “looking for work”. It is an assertion made orally, there is no evidence of any company who he has approached seeking work or the type of work he is seeking, when he sought it, how much it was paid or the length of time for which employment would have been given.
I accept that there has been a change in the number of casual employees utilised by the respondent. This was made clear in the evidence of Mr Evans. The respondent has also produced a bar chart that corroborates the statement although it does seem to indicate that the situation is not entirely static. On the other hand Mr Drury had been working for the company and its predecessors for a very long time. In the absence of any evidence of complaints about his attitude on the job I think it would be reasonable to expect him to receive ongoing employment from the respondent had these problems surrounding the application to HREOC not taken place. Given my finding that the company was in no way adverse to re-employing persons who had been on workers compensation and had not discriminated against the applicant on the grounds of his disability, the existence of the disability cannot be used to diminish the amount of work he might have had. Looking first at the period between 2002 and the date of this judgment I think the decline in available work would indicate that Mr Drury could have expected about one half of the work and remuneration that he previously received. This accords with the calculation made by the applicant and set out above at [34(ii)]. But like the future economic loss, which I will consider next, it is subject to my views on the two grounds upon which the respondent disputes all liability to pay damages.
The first point to take into account when considering future economic loss is that this is not a case where the applicant cannot work. The finding has been that he was not considered for employment and the reason for that decision, or one of the reasons for that decision, was the fact of his complaint to HREOC. The type of contract which the applicant had with the respondent at best left him with a legitimate expectation that if he indicated he was available for any particular job that the respondent was about to undertake with a travelling crew he would be considered for a position as part of that crew. He would have to pass a medical and undertake the usual induction. There were no guarantees. But the evidence from Mr Drury was that he would generally get the jobs for which he applied and this evidence was not the subject of any substantial contradiction. This analysis raises two questions. First, why should the respondent not have an opportunity following this decision to reverse what I have found to be its attitude in the past and restore Mr Drury to its list of available employees? Mr Drury was never guaranteed a job in the past, he should not be guaranteed a job in the future. But he might be put back on the list and considered for work with the same priority as he previously had. Second, is the method by which damages are calculated that set out in the applicant’s submissions or is the appropriate method of looking at the claim that of one for a lost opportunity and is there any difference?
In the absence of an express or implied contractual stipulation, the common law rejects the notion that a plaintiff claiming - disp436#disp436damages for breach of contract is entitled to be compensated for, or have taken into account, a commercial advantage or loss of opportunity to display business or professional skills or to enhance a professional or business reputation: The Commonwealth of Australia v Amann Aviation Pty. Limited (1992) 174 CLR 64 at 170. The principle is that where the defendant has the option of performing a contract in alternative ways, damages for breach by him must be assessed on the assumption that he will perform it in the way most beneficial to himself and not in that most beneficial to the claimants: Cockburn v Alexander (1848) 6 C.B. 791 at 814; Deverill v Burnell (1873) L.R. 8 C.P. 475; Robinson v Robinson (1851(1 De G.M. & G. 247. However in Spring v Guardian Assurance [1995] 2 A.C. 296 , a claim arising in connection with a contract for employment concerning a negligent employment reference, the House of Lords, having already held that the employer owed a duty of care to the claimant, stated that the question to ascertain is whether the breach of duty had caused the claimant loss. Lord Lowry said at [327]:
“Once the duty is held to exist and the defendant’ negligence is proved, the plaintiff only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss… He does not have to prove that, but for the negligent reference, Scottish Amicable would have employed him”
The House of Lords judgment has been applied by the High Court in decisions discussing the causation and remoteness of loss: see Hill v Van Erp (1997) 188 CLR 159 at [233] per Gummow J; Kenny & Good Pty Ltd v MGICA [1999] HCA 25 per McHugh J at paragraph [44]. Bold v Brough Nicholson & Hall Ltd [1964] 1 W.L.R. 201 is a case concerning pension benefits where it was it was held that where an optional employment benefit exists and impliedly under the contract the employer does not have an option to discriminate unfairly against the claimant, that the claimant has a contractual right to the salary and in addition annual increases and fringe benefits that might have been accrued during the period in which the loss was experienced: see Waddams, The Law Of Damages at [5-57]. This decision was applied by Beaumont J in The Commonwealth of Australia v Amann Aviation Pty. Limited (supra) where His Honour, in discussing a contractual clause that required the respondent to “show cause” to give the applicant’s sufficient time to comply said at [211]:
“In my opinion, there is no presumption of law that an option of the kind found in cl. 2.24 would necessarily be exercised. Ordinarily, it would be reasonable to assume that a party would avail itself of such an opportunity. But special circumstances may suggest that the ordinary inference should not be drawn.”
The authorities would appear to allow a claim of the type made in reality of loss of the chance of employment, subject to my making a calculation of the prospects of re-employment.
I am not persuaded by the respondent’s argument that it is not liable for any damages after December 2002 when it offered Mr Drury the opportunity of a medical examination. The respondent accepted that at this time there was no particular job that they were going to put Mr Drury into. The evidence also is that a medical examination was current for approximately six weeks. Given that the opportunity to have the medical examination was offered in December and that workers are usually picked for a particular job about two months prior to the job commencing, failure to attend a medical examination without the prospect of a position could not be said to have prevented Mr Drury from being offered a position.
In regard to Mr Drury’s alleged failure to mitigate it must be ascertained whether he is prevented from claiming any economic loss as a result of his failure to actively seek alternative employment in the refractory industry or by utilising his labouring skills in a workplace other than a refractory. Generally a plaintiff is barred from recovering loss in respect of what could have been avoided by acting reasonably. What is reasonable will be a question of fact depending on the circumstances of the individual case: McAuley v London Transport Executive [1958] 2 Lloyd’s Rep. 500 (C.A.), applied in Johnson v Perez (1988) 166 CLR 351 by Mason C.J. at [358]. The leading authority relating to mitigation and its impact on the award of damages is British Westinghouse Electric & Manufacturing Co. Ltd v Underground Electric Rys. Co. of London Ltd [1912] A.C. 673 which held that where a seller fails to deliver goods or delivers defective goods, the buyer must show that he had taken reasonable steps in mitigation by attempting to acquire a substitute where the buyer wishes to claim damages for the loss of profit he would have made . Viscount Haldane expressed the basic principle of mitigation at [689]:
“The fundamental basis [of damage assessment] is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss of consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps”
That decision was applied by the Full Federal Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 104 ALR 397, where it was held that the above principles were of general application and not limited to actions for damages for personal injuries. However the use of the expression “duty” is not an entirely accurate term, since there is no “duty” which is actionable or which is owed to anyone by the claimant. This was expressed clearly by Sir Donaldson M.R. in The Solhot [1983] 1 Lloyd’s Rep. 605, CA at 608:
“…A plaintiff is under no duty to mitigate his loss, despite the habitual use by lawyers of the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s loss as is properly caused by the defendant’s breach of duty.”
In Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 the High Court applied the principle of mitigation in considering whether or not a claimant who has been dismissed is entitled to be reimbursed wages where the claimant has remained unemployed through the period following the dismissal. At Latham CJ stated at [452] that:
“It is only in an exceptional case, where the payment of money to the servant does not depend upon his doing work, that the servant can recover remuneration without doing work. He cannot remain idle, even though he truly alleges readiness and willingness to do the work, and claim wages or salary as if he had done the work. The rule that a dismissed servant is bound to mitigate his damages by obtaining other suitable employment, if available, is inconsistent with the view that he is entitled to do nothing and to sue for his full wages as if he had earned them. The duty to mitigate damages has never been held to depend upon whether the servant had accepted a breach or a repudiation of a contract as entitling him to regard the contract as at an end and upon his exercising this right.”
This was later applied by the High Court with approval by Sweeny and Ryan JJ in Goldburg v Shell Oil Co Of Australia Ltd (1990) 95 ALR 711 at [715]. The statement in Solhot (supra) was applied in the Federal Court decision of Henderson v Amadio (No.1) (1995) 62 FCR 1, where Heerey J said at [42]:
“A plaintiff is only required to do what is reasonable to mitigate the loss caused by the defendant. What is or is not reasonable in the circumstances is a question of fact: Sotiros Shipping Inc v Shmeiet Solholt [1983] 1 Lloyds Rep 605 at 608. The onus is on the defendant to show that the loss proved could have been minimised or avoided altogether by the taking of some step which the plaintiff could reasonably have taken but did not take: Goldburg v Shell Oil Co of Australia (1990) 95 ALR 711 at 714.”
Evidence of mitigation or a failure to mitigate is crucial to the measure of damages in cases of unlawful dismissal. In Goldberg their Honours Ryan and Sweeny JJ cited a number of cases and said at [716]:
Our supposition is also borne out by the second of the cases cited by Greig and Davis at p 1392. That is Bagnall v National Tobacco Corp of Australia Ltd (1934) 34 SR(NSW) 421 where Jordan CJ indicated (at 429) that:
‘In the case of wrongful dismissal, the measure of damage is the amount of wages or salary which the employee has been prevented from earning… plus the value of any other benefits to which he is entitled by virtue of the contract of employment and of which he has been deprived by its breach, with a deduction of the value to him of the time placed at his disposal by his dismissal — ie, what he has earned, or might have earned if he could by due diligence have obtained similar suitable employment elsewhere during the period. “
The learned Chief Justice then continued (at 430): “There is no difficulty in the present case in arriving at the proper basis. It is simply a question of calculating the amount of his salary, at the rate of P400 per annum, for the proper period of notice, since there is no evidence suggesting that anything additional was receivable in respect of percentage on the company's net profits or commission on the sale of debentures, and then making a proper deduction in respect of other similar employment which the plaintiff might have obtained. It is true that, upon the latter point, there was no evidence before the jury; but inasmuch as the onus is upon the defendant to establish facts going to mitigation of damages: Roper v Johnson (1873) LR 8 CP 167 at 181–2); James Finlay and Co Ltd v NV Kwik Hoo Tong Handel Maatschappij ([1928] 2 KB 604); Tooth v Kitto ((1913) 30 WN (NSW) 86); Criss v Alexander ((1928) 45 WN (NSW) 187), and this principle applies to cases of wrongful dismissal: Harding v Harding ((1928) 29 SR (NSW) 96 at 106), the only consequence was that the jury were not called upon to make any deduction.”
In Andrew James Fox v St Barbara Mines Ltd [1998] 621 FCA a later decision of the Federal Court, the applicant’s employment was terminated for a prohibited reason. The applicant brought his claim under the Workplace Relations Act1996 (Cth). Section 170BA of the Act deals with the minimum entitlements of employees and gives effect or further effect to the anti-discrimination Conventions and the HREOCA 1986 (Cth). The applicant worked within the area of mining, however, he also had qualifications as a chef. In relation to mitigation of loss through seeking alternative employment French J held that a reduction of damages in these circumstances would not be appropriate:
“In relation to the figure of $28,000 awarded by the Judicial Registrar, pursuant to s 170CR(1) as compensation for the breach by the respondent of s 170CK, the only attack made upon the quantum of that award was based upon a mitigation of loss argument. As Counsel for the company put it before me Fox had not only the skills that he employed in his job with the company but also was trained as a chef and while he had given evidence and answered questions reasonably satisfactorily on the issue of attempts to find work within the mining sphere, he had not been so satisfactory in the alternative employment prospects available to him as a chef. This was said to be of importance because one of the matters the Judicial Registrar had taken into account in making his decision as to damages was the nature of the work that Fox had been able to find since his termination which was in fact casual employment. The company's submission was that a “reasonable person mitigating his loss would have looked to work opportunities for which he was qualified outside the mining sphere”. When Counsel was asked how the Court would quantify the difference between what was awarded and what the company said should have been awarded if alternative opportunities were properly taken into account, the submission was put that absent evidence on award rates and the like this was a matter which should be assessed as a contingency.
In my opinion this is the kind of matter which ought to have been the subject of evidence to provide some basis for assessment of a contingency based reduction in the amount of compensation awarded. No such basis having been established, I do not propose to interfere with the Judicial Registrar's award in this regard.” (emphasis added)
However the fact in Andrew James Fox (supra) are clearly distinguishable from those of the present case, where there is no evidence that Mr Drury made any attempt to find alternative employment, whether it be in a refractory or elsewhere.
Findings
The discussions above on the applicant’s allegation of disability discrimination, victimisation and the damages due to him in respect thereof lead me to the following findings.
Disability Discrimination
I have been unable to find any causal nexus between the applicant’s disability and the failure to provide him with work by the respondent. This part of the applicant’s claim is not made out.
Victimisation
Notwithstanding Mr Evan’s evidence concerning the general manning situation within the company and his statement that given time some work would be found for Mr Drury I am satisfied that such work could have been found by Mr Mepham for Mr Drury at Whyalla. Mr Drury was not offered that work and whilst one can posit a number of reasons for this, including Mr Drury’s attitude, his conduct was so bound up with what had occurred in the past, his application to HREOC and this court, that I am satisfied that pursuant to s.10 DDA the respondent is liable for a breach of s.42 DDA.
General Damages
The applicant is entitled to general damages for the respondent’s breach of the act. The amount of those damages is much in contention. It has been submitted that an appropriate amount is $20,000. I am unable to accede to that submission. In Phillis v Mandic [2005] FMCA 330 I discussed the question of general damages with particular reference to the decision of Branson J in Commonwealth v Evans [2004] FCA 654 and I noted the general reluctance to award substantial damages for breach of the Commonwealth Anti-Discrimination Acts. Victimisation is a very serious matter. It is an offence for which a substantial penalty has been provided. But there is no provision in the DDA as there is under s.115(4)(b)(1a) Copyright Act 1968 allowing the court to award deterrence damages. No evidence has been provided to me of any medical sequelae to the applicant from the actions of the respondent. But those actions were serious and must have hurt him. I believe that in all the circumstances a proper award is the sum of $5,000.
Special Damages
The special damages claim is divided into two parts. Damages for loss of earnings from July 2002 to judgment and damages for loss of earnings thereafter until the applicant retires. I am not satisfied that the applicant has made any effort to mitigate his loss. If he is claiming that as a 56 year old male labourer he is unlikely to obtain such employment then that claim must redound upon the possibility of his obtaining employment from the respondent. The respondent has never had to do more than consider him as available for work and provide him with the same opportunity as he would have had if these events had never occurred. If the applicant’s argument is that the entire construction industry operates an ageist approach to employment and that as a result there was no point him seeking work because he would not get it, then this would apply equally to the situation with the respondent. That may be discrimination but it is not the discrimination claimed in this case. I have no evidence that this ageism exists. The applicant has failed to demonstrate that he has suffered a real loss as a result of his not being considered for employment by the respondent. The only question that remains is whether I should make an award in his favour based upon the likelihood that I have found of him obtaining employment from the respondent firstly at Whyalla and then in some short period following whilst the applicant commenced his search for other employment to mitigate. It seems to me logical that having found that Mr Mepham could have, and but for the found victimisation would have, offered the applicant work at Whyalla he should be compensated for that. I have not been provided with any information as to what a grade one labourer employed on the Whyalla project earned, but this should not be difficult for the respondent to provide and my orders will deal with this.
I do not think that I can award any damages in regard to any further loss of employment opportunity. At P-169 of the transcript there is evidence from Mr Mepham that the company had performed refractory brickwork in Freemantle, Kwinana and Penrith but that the numbers of travelling crew in those jobs were not large. Given the evidence of Mr Drury’s employment history, the time at work and the time off, I cannot be satisfied that in the period of approximately three months during which it might have been reasonable for him to have been preparing himself to make applications for work he would have had employment with the respondent. In the circumstances his damages must be limited to the Whyalla period.
I have been asked to order that the respondent apologise to the applicant. I have made it clear in the past that I do not believe that ordered apologies are much utility in cases of this nature. Whilst I would hope that the respondent does see fit to apologise to Mr Drury, having realised that it was in error in the manner in which it treated him, I will not require it to do this. The applicant seeks costs. He has been substantially successful in his claim although not entirely. Unless there are circumstances relating to the quantum of the award that would indicate a different order I would order that the respondent pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
- AGLC
- Drury v Andreco Hurll Refractory Services Pty Ltd (No.4) [2005] FMCA 1226
- Case
- [2005] FMCA 1226
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the general damages for victimisation and whether Mr. Drury was under a duty to mitigate the loss he experienced following the termination of his employment. The principle of mitigation, established in British Westinghouse Electric & Manufacturing Co. Ltd v Underground Electric Rys. Co. of London Ltd, was applied, stating that a plaintiff must take reasonable steps to mitigate loss. The court held that a plaintiff is not under a duty to mitigate loss but is required to do what is reasonable in the circumstances. The onus is on the defendant to show that the loss proved could have been minimised or avoided altogether by the taking of some step which the plaintiff could reasonably have taken but did not take. The court found no evidence that Mr. Drury made any attempt to find alternative employment.
The court concluded that the respondent was liable for the disability discrimination and victimisation under the Disability Discrimination Act 1992 (Cth). It ordered the respondent to pay Mr. Drury $5,000 damages for breach of section 42 of the Act, a sum to be agreed or determined by a Registrar as special damages, and the applicant’s costs.
Orders
Orders of the court
1.
The respondent pay to the applicant the sum of $5,000 damages for breach of section 42 of the Disability Discrimination Act 1992 (Cth).
2.
The respondent pay to the applicant by way of special damages a sum to be agreed, or failing agreement to be determined by a Registrar of this court, equivalent to the amount earned by a Grade 1 labourer on travelling crew for the duration of the respondent’s contract at BHP Whyalla, South Australia, referred to in the proceedings.
3.
The respondent pay the applicant’s costs to be calculated in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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