Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Ferrington v Qube Ports Pty Ltd [2025] NSWCATAD 101 Hearing dates: 3 April 2025 Date of orders: 06 May 2025 Decision date: 06 May 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: J Smith, Senior Member Decision: (1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.
(2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.
Catchwords: JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Fair Work Act 2009 (Cth)
Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Postal Corporation v Williams [2024] NSWCATAP 168
BDK v Department of Education and Communities [2015] NSWCATAP 129
Blanch v Smith [2024] NSWCATAD 20
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Felton v Mulligan [1971] HCA 39; 124 CLR 367
Gaynor v Burns [2025] NSWSC 185
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32
Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
R v Commonwealth of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141
Rana v Google Inc [2017] FCAFC 156
Re Luck [2003] HCA 70
Spicers v Owners Corporation [2016] NSWCATAP 11
Tucker v McKee [2022] FCAFC 98
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Texts Cited: None cited
Category: Principal judgment Parties: Mark Ferrington (Applicant)
Qube Ports Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
D Ward (Respondent)
Maritime Union of Australia (Applicant)
Allens (Respondent)
File Number(s): 2024/00238310 Publication restriction: Nil
REASONS fOR DECISION
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The Respondent, Qube Ports Pty Ltd (Qube) is seeking that the Tribunal dismiss the Applicant, Mark Ferrington’s disability discrimination complaint (the complaint) on the basis that the Tribunal does not have jurisdiction as the matter involves federal jurisdiction. The Tribunal has decided to dismiss the complaint on this basis.
Background
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Mr Ferrington commenced employment with Qube as a Stevedore on 1 August 2007.
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In January 2020, Mr Ferrington suffered a work-related back injury and lodged a successful workers compensation claim.
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In late 2021, Mr Ferrington returned to work with Qube on light duties.
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On 17 March 2023, Mr Ferrington’s employment as a Stevedore was terminated by Qube on the ground that Mr Ferrington had an injury that prevented him from performing the inherent requirements of his position.
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Prior to his termination, Mr Ferrington’s employment with Qube was governed by the Qube Ports Pty Ltd Port of Kembla Enterprise Agreement 2021 (the…
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- Case
- [2025] NSWCATAD 101
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the applicant's complaint involved a matter that fell under federal jurisdiction. The Tribunal had to determine if the dispute was about disability discrimination and the termination of employment, and if it was covered by the federal anti-discrimination laws. Another key issue was whether the applicant's dismissal was justified under the terms of the enterprise agreement.
The Tribunal found that the applicant's complaint did not involve a matter that required federal jurisdiction. The Tribunal ruled that the applicant failed to establish that his dismissal was due to his disability or that the employer did not adhere to the enterprise agreement. The Tribunal concluded that the applicant's complaint did not meet the necessary legal criteria for federal jurisdiction. Consequently, the Tribunal dismissed the whole of the applicant’s complaint. If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal if costs are sought.
Orders
Orders of the court
(1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.
(2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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