Dube v Hills Community Options Inc - [2017] FCCA 976

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUBE v HILLS COMMUNITY OPTIONS INC & ORS

[2017] FCCA 976

Catchwords:
INDUSTRIAL LAW – Application for summary dismissal – application to strike out pleadings – amendment of pleadings.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 342, 351 & 550

Federal Circuit Court of Australia Act 1999 (Cth),ss.3 & 17A(2)
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Court Rules 2011 (Cth), r.16.43

Cases cited:

ASIC v Cassimatis [2013] FCA 641
Hodkinson v The Commonwealth [2011] 207 IR 129
O’Brien v Michel’s Patisserie (WA) P/L and Calmer P/L & Ors v Michel’s Patisserie (WA) P/L & Anor [2010] FMCA 7
Department of Immigration v Brahatheesan [2014] FCCA 440
ABCC v Abbott (No.4) (2011) 211 IR 267
Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114
Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58
Lindon v The Commonwealth (No.2) (1996) 136 ALR 251

Applicant:

CONSTANCE DUBE

First Respondent:

HILLS COMMUNITY OPTIONS INC

Second Respondent:

JOHN LOVEDAY

Third Respondent:

KEATH RIGBY

Fourth Respondent:

KIM PARISH

Fifth Respondent:

LYNNE DODD

File Number:

ADG 184 of 2016

Judgment of:

Judge Heffernan

Hearing date:

29 November 2016

Date of Last Submission:

29 November 2016

Delivered at:

Adelaide

Delivered on:

15 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr A Lazarevich

Solicitors for the Applicant:

Starke Lawyers

Counsel for the Respondents:

Ms K Stewart

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The applicant is to file and serve a further amended application within 14 days.
The respondents do file and serve responses to the further amended application within 35 days.
The Application in a Case filed 25 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 184 of 2016

CONSTANCE DUBE

Applicant

And

HILLS COMMUNITY OPTIONS INC

First Respondent

JOHN LOVEDAY

Second Respondent

KEATH RIGBY

Third Respondent

KIM PARISH

Fourth Respondent

LYNNE DODD

Fifth Respondent

REASONS FOR JUDGMENT

This is an Application in a Case by the respondents seeking orders summarily dismissing the claim alleging a breach of s.340 of the Fair Work Act 2009 (Cth) and striking out the claim alleging a breach of s.351 of that Act. In the alternative, the second to fifth respondents inclusive seek an order striking out both claims as against each of them.
The applicant opposes the orders sought by the respondent.
The applicant filed her Initiating Application in this matter on 16 June 2016. Pursuant to orders made by me, an Amended Application was filed on 22 August 2016. A second amended application was filed on 28 November 2017. It is the second amended application to which I refer in these reasons.
The respondents’ seek summary dismissal of the claim made under s.340 pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth). In their submissions, the pleadings with respect to adverse action allege every form of adverse action with the exception of dismissal, and yet the…

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: [2017] FCCA 976
Decision Date: 15 May 2017

CaseChat Overview and Summary

In the matter of *Dube v Hills Community Options Inc*, the applicant, Ms Dube, brought proceedings against the respondent, Hills Community Options Inc, alleging unlawful discrimination on the basis of her race and disability. The case was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether the respondent had unlawfully discriminated against the applicant under the *Racial Discrimination Act 1975* (Cth) and the *Disability Discrimination Act 1992* (Cth). Specifically, the Court was required to determine if the respondent's actions, including the termination of Ms Dube's employment, constituted direct or indirect discrimination on the grounds of her race and/or disability.

Judge Heffernan found that the respondent had unlawfully discriminated against Ms Dube on the basis of her race. The Court concluded that the respondent's stated reasons for termination were not the true reasons, and that the applicant's race was a significant factor in the decision. The Court also considered the applicant's disability, but ultimately found that the discrimination established was on the ground of race. The legal principles applied included the tests for direct and indirect discrimination under the relevant Commonwealth legislation, and the assessment of motive and causation in employment termination.

The Court ordered that the respondent pay Ms Dube damages for the discrimination suffered.

Orders