Drury v Andreco Hurll Refractory Services Pty Ltd (No.4)

Link copied
Case Copied 53 min read

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
Waters v Public Transport Corporation (1991) 173 CLR 349
HREOC v Mount Isa Mines Ltd (1993) 46 FCR 301
Macedonian Teachers Association of Victoria Inc v HREOC & Anor [1998] 1650 FCA

The Commonwealth of Australia v Amann Aviation Pty. Limited (1992) 174 CLR 64
Cockburn v Alexander (1848) 6 C.B. 791
Deverill v Burnell (1873) L.R. 8 C.P. 475; Robinson v Robinson (1851(1 De G.M. & G. 247
Spring v Guardian Assurance [1995] 2 A.C. 296
Hill v Van Erp (1997) 188 CLR 159
Kenny & Good Pty Ltd v MGICA [1999] HCA 25
Bold v Brough Nicholson & Hall Ltd [1964] 1 W.L.R. 201
McAuley v London Transport Executive [1958] 2 Lloyd’s Rep. 500 (C.A) Johnson v Perez (1988) 166 CLR 351
British Westinghouse Electric & Manufacturing Co. Ltd v Underground Electric Rys. Co. of London Ltd [1912] A.C. 673
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 104 ALR 397
The Solhot [1983] 1 Lloyd’s Rep. 605
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Goldberg v Shell Oil Co Of Australia Ltd (1990) 95 ALR 711
Henderson v Amadio (No.1) (1995) 62 FCR 1
Andrew James Fox v St Barbara Mines Ltd [1998] 621 FCA
Phillis v Mandic [2005] FMCA 330
Commonwealth v Evans [2004] FCA 654
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
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Drury v Andreco Hurll Refractory Services Pty Ltd (No.4) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2005] FMCA 1226
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Mr. Drury sued Mr. Andreco Hurll Refractory Services Pty Ltd for disability discrimination and victimisation in employment. Mr. Drury, a skilled labourer in the refractory industry, had received workers' compensation for two years after an industrial injury. He complained under the HREOC Act of disability discrimination, alleging that despite being fit to return to work, he was not offered employment by the respondent. The court had to decide if there was a causal relationship between the alleged unlawful conduct and the disability, whether the conduct of Mr. Drury entitled the employer not to provide him further employment, and whether the employer could have found him employment.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.