Ferrus v Qantas Airways Ltd

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FEDERAL COURT OF AUSTRALIA

Ferrus v Qantas Airways Limited [2006] FCA 812

PRACTICE AND PROCEDURE – human rights – extension of time sought for application under s 46PO(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth) – principles to be applied - whether delay adequately explained – merits of application – disability discrimination in employment - whether a disability – whether indirect discrimination

Held: Application for extension of time dismissed. Delay not adequately explained. No merit in the applicant’s submissions that he had been the subject of unlawful discrimination.

Anti-Discrimination Act 1977 (NSW) s 17(2)(a)
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 15
Federal Court of Australia Act 1976 (Cth) s 19(1)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(f), 46PH(2), 46PO
Racial Discrimination Act 1975 (Cth) s 9

Comcare v A’Hearn (1993) 45 FCR 441 cited
Dix v Client Compensation Tribunal (1993) 1 VR 297 cited
Doyle v Chief of Staff (1982) 42 ALR 283 cited
Drew v Bates [2005] FMCA 1221 cited
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited

Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 cited

Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 cited

Lucic v Nolan (1982) 45 ALR 411 at 416 cited

Pham v Commonwealth of Australia [2002] FCA 669 cited

Phillips v Australian Girls Choir [2001] FMCA 109 approved

Power v Aboriginal Hostels Ltd [2004] FMC 452 cited

Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 cited

Sharma v Legal Aid (Qld) [2002] FCAFC 196 cited
Waters v Public Transport Corporation (1991) 173 CLR 349 cited
Wedesweiller v Cole (1983) 47 ALR 528 cited

ALAIN GILLIS FERRUS v QANTAS AIRWAYS LIMITED
QUD 22 OF 2005

COLLIER J
28 JUNE 2006
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 22 OF 2005

BETWEEN:

ALAIN GILLIS FERRUS
Applicant

AND:

QANTAS AIRWAYS LIMITED
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

28 JUNE 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application filed on 21 January 2005 for leave to extend time pursuant to s 46PO(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.

2.The Notice of Motion filed on 5 July 2005 be dismissed.

3.The Notice of Motion filed on 26 April 2006 be dismissed.

  1. The applicant pay the costs of the respondent in the proceeding, to be taxed if not otherwise agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 22 OF 2005

BETWEEN:

ALAIN GILLIS FERRUS
Applicant

AND:

QANTAS AIRWAYS LIMITED
Respondent

JUDGE:

COLLIER J

DATE:

28 JUNE 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. In the case before me for consideration is an application and two Notices of Motion:

    1.An application seeking the leave of the Court to grant an extension of time to make an application to the Federal…

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Details
Case
[2006] FCA 812
Decision Date

CaseChat Overview and Summary

The matter of Ferrus v Qantas Airways Ltd was heard in the Federal Court of Australia. The applicant, Ferrus, was an employee of Qantas Airways Ltd who was dismissed from his position as a long haul flight attendant on 10 June 2003. Ferrus sought reinstatement in the Australian Industrial Relations Commission (AIRC) but his application was dismissed by Richards C. He subsequently sought leave to appeal to the Full Bench of the AIRC, but this was refused. Ferrus then sought to have the matter considered by the Human Rights and Equal Opportunity Commission (HREOC) on the basis of unlawful discrimination. However, the delegate of the President of HREOC found that the matter had been adequately dealt with by the AIRC and terminated the complaint. Ferrus sought to have the matter reconsidered by the Federal Court under s 46PO(2) HREOC Act.

The legal issues before the court were whether the applicant was entitled to an extension of time to file his application for leave to appeal to the Federal Court and whether there was any merit in the substantive case of the applicant. The court had to determine whether the applicant's delay in filing the application was adequately explained and whether there was any merit in the applicant's claim that he was unlawfully discriminated against by Qantas Airways Ltd.

The court found that the applicant's delay in filing the application was not adequately explained. The court noted that the applicant had filed the application more than six months after the Notice of Termination was issued by HREOC, which was beyond the time limit set out in s 46PO(2) HREOC Act. The court also found that there was no merit in the substantive case of the applicant. The court noted that the applicant had been given numerous opportunities to provide an explanation for his conduct and that he had not provided an adequate explanation for the irregularities in relation to the Barplus service. The court found that the respondent had acted reasonably in terminating the applicant's employment.

The court dismissed the application filed by the applicant on 21 January 2005 for leave to extend time pursuant to s 46PO(2) HREOC Act. The court also dismissed the Notices of Motion filed by the respondent on 5 July 2005 and the applicant on 26 April 2006. The court ordered that the applicant pay the costs of the respondent in the proceeding, to be taxed if not otherwise agreed.

Orders

Orders of the court

1. The application filed on 21 January 2005 for leave to extend time pursuant to s 46PO(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.

2. The Notice of Motion filed on 5 July 2005 be dismissed.

3. The Notice of Motion filed on 26 April 2006 be dismissed.

4. The applicant pay the costs of the respondent in the proceeding, to be taxed if not otherwise agreed.

Background

Background to the litigation

In summary, the sequence of events culminating in the application are:·the applicant was dismissed from employment by his erstwhile employer, the respondent on 10 June 2003·he sought orders including reinstatement in the Australian Industrial Relations Commission (‘the AIRC’) before Richards C, however Richards C dismissed his application·he sought leave to appeal to the Full Bench of the AIRC from the decision of Richards C, however the Full Bench refused leave to appeal·he sought to have the matter considered by the Human Rights and Equal Opportunity Commission (‘HREOC’) on the ground of unlawful discrimination. The delegate of the President of HREOC found that the matter had been adequately dealt with by the AIRC and terminated the complaint in accordance with s 46PH(1)(f) HREOC Act by notice issued pursuant to s 46PH(2) of that Acto pursuant to s 46PO(2) HREOC Act where a complaint to HREOC has been terminated by the President under s 46PE or s 46PH and the President has given a notice to any person under s 46PH(2), an affected person in relation to the complaint may apply to the Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint; howevero an application must be made within 28 days after the date of issue of the Notice under subs 46PH(2) or within such further time as the court allows·the Notice of Termination pursuant to s 46PH(2) in the present case was issued on 28 June 2004·it appears that the applicant communicated with the Federal Court Registry in Brisbane by letter received by the Court on 27 July 2004, but the correspondence was insufficient to commence proceedings in the Court·the applicant filed the application for an extension of time and a claim under the HREOC Act on 21 January 2005, which is more than six months after HREOC issued the Notice of Termination pursuant to s 46PH(2).BACKGROUND The background facts to this application are set out in detail in the decision of Richards C of the AIRC. I do not understand there to be any dispute as to those facts. They may be summarised as follows:1.the applicant commenced employment as a long haul flight attendant with the respondent on 31 July 19952.it appears that he experienced no issues at work until the end of 19993.around the end of 1999 his marriage broke down4.the applicant was also under stress because of the illness of his daughter5.in 1997-1998 the respondent introduced ‘Barplus’, an in-flight duty free retailing service, which the applicant was required to conduct as part of his duties6.Chapter 5 of the Barplus Policies and Procedures manual was headed ‘Pay-in Procedure’. Relevant parts of ch 5 included:· under the sub-heading ‘Pay-in’:‘All company monies and supporting documents are to be immediately deposited at the company designated pay-in points on arrival at the end of your trip or duty. You may pay-in during your trip at a designated pay-in point, if you so wish. After pay-in, a new ISTR form must be used. All crew must comply with this regulation.’· under the heading ‘Performance Management’:‘The following will be addressed as performance issues and may lead to disciplinary action being taken:1. Any variances not cleared within the stated settled date.2. Continual short payments.3. Nil pay-ins.4. Buying/selling Company currency rates and negotiable documents for their own or other’s personal use or profit [as per Cabin Crew Administration Manual Section 7: Currency exchange regulations].5. Evidence of continual failure to comply with procedures.’Chapter 9 of the manual explains the commission system in which Barplus operators participate.Non-compliance with Duty free selling and Pay-in Procedures will result in disciplinary action.Volume 2 c 1:4 of the Qantas Corporate Policy clearly states that: ‘When employees breach any of the standards regarding theft, attempted theft or removal of property, counselling and disciplinary action will occur including termination of employment, where appropriate’.7.in late 1999 the applicant presented at his medical practitioner with symptoms of depression8.it appears that the applicant was responsible for a number of irregularities in relation to Barplus on a number of flights in late 2002 and early 2003. By 15 April 2003, the cumulative shortfall against the recorded earnings amounted to $7667.169.it appears that the respondent on numerous occasions, including by way of fortnightly finance statements, advised the applicant of the pay-in shortfalls. The applicant stated that he had not checked his Qantas mailbox during the relevant period and was unaware of deficiencies in pay-ins other than one which arose in November 200210.a meeting was held between the respondent and the applicant on 9 April 2003 where the respondent’s concerns were discussed. At a subsequent meeting on 24 April 2003, it was confirmed that the applicant had found lost monies and documentation in relation to a number of trips in a compartment of his in-cabin bag. A representative of the respondent at the meeting of 24 April 2003 indicated to the applicant that he would be held out of service pending a decision being made by Senior Management regarding his future11.the applicant stated that he saw a medical practitioner on 11 April 2003, and was prescribed medication at that time. He also began accessing the respondent’s medical services including counselling services12.a further meeting took place on 23 May 2003 and the applicant was given another opportunity to provide an explanation for his conduct over the period November 2002-March 200313.on 10 June 2003 the respondent terminated the applicant’s employment with four weeks pay in lieu of notice.AIRC HEARINGS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J
As I noted earlier in my judgment, the applicant has also made reference in his complaint to the fact that he did not receive a redundancy package. The nature of the applicant’s complaint in this respect is not clear to me. Accordingly, it is not possible for me to ascertain whether there is any merit in this issue.CONCLUSION Because of the lack of adequate explanation for the applicant’s delay in filing the application, and the absence of merit in the substantive case of the applicant, I am not satisfied that it would be proper to grant further time in accordance with s 46PO(2) HREOC Act for the applicant to make an application alleging unlawful discrimination by the respondent. Accordingly, it is appropriate to dismiss the application filed 21 January 2005, and to order the applicant to pay the respondent’s costs, to be taxed if not otherwise agreed. As a result of this finding it is unnecessary for me to consider the Notices of Motion filed by the respondent on 5 July 2005 and the applicant on 26 April 2006, as these Notices of Motion were in substance submissions of these parties in relation to the application filed by the applicant on 21 January 2005. Accordingly, I formally dismiss them.THE COURT ORDERS THAT:1.The application filed on 21 January 2005 for leave to extend time pursuant to s 46PO(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.2.The Notice of Motion filed on 5 July 2005 be dismissed.3.The Notice of Motion filed on 26 April 2006 be dismissed.4.The applicant pay the costs of the respondent in the proceeding, to be taxed if not otherwise agreed.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.