Fuad v Telstra Corporation - [2009] NSWADT 251

CITATION: Fuad v Telstra Corporation [2009] NSWADT 251

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Paul Fuad
RESPONDENT
Telstra Corporation Limited

FILE NUMBER: 081098

HEARING DATES: 22, 23, 24 April 2009

SUBMISSIONS CLOSED: 24 April 2009

DATE OF DECISION:
29 September 2009

BEFORE: Britton A - Deputy President; Hiffernan N - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member

CATCHWORDS: Complaint of disability discrimination – employment

LEGISLATION CITED: Anti-Discrimination Act 1977 (NSW)
Disability Discrimination Act 1992 (Cth)

CASES CITED: Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47
Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
Purvis v New South Wales (2003) 217 CLR 92
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Eastman, barrister

ORDERS: 1.The complaint of discrimination on the ground of disability is dismissed.

REASONS FOR DECISION

1 Mr Paul Fuad claims he has been subjected to unlawful discrimination on the ground of disability by his employer, Telstra Corporation. The gravamen of his complaint is Telstra’s decision to remove him from a position he had been performing despite having restricted use of an elbow and to direct him to perform duties he was unfit to perform. As a consequence of this decision Mr Fuad claims he had no option but not to report to work and take up his personal leave entitlements. This, he contends, was part of Telstra’s strategy to ‘shake him up a bit’ and force him to take a redundancy.

2 Telstra denies that Mr Fuad had been discriminated against on the ground of his elbow condition, which it concedes constitutes a disability for the purpose of the Anti-Discrimination Act 1977. It contends that the decision about which Mr Fuad complains was related to an operational restructure within Telstra.

3 Mr Fuad lodged a complaint with the Anti-Discrimination Board in April 2008. His complaint spans the period, 17 September 2007 to 14 April 2008.

Background

4 Mr Fuad commenced work with Telstra in 1982. In 2001 he was transferred to a position as a communications technician (CT). The work performed by CTs fell into two main categories — ‘Fit and Fix’ (F&F) work — installation and maintenance of Telstra’s network and ‘Construction and Maintenance’ (C&M) work — construction and repair of the network.

5 In 1994 Mr Fuad injured his right elbow. A decade later that injury was aggravated and surgery required. Before this surgery Mr Fuad held the position of CT and was a member of an F&F team.

6 Mr Fuad returned to light duties after surgery. In August 2005 he commenced ‘customer access network interception targeting’ (CANIT) work. This work involved the repair of faulty cable joints.

7 In November 2005 Mr Fuad’s treating doctor issued a final WorkCover certificate, certifying him fit to lift up to 10 kilograms with ‘limited use of right arm’. Around this time he was referred for assessment by Telstra’s insurer, Allianz Australia, to Dr Anthony Smith. In a report…

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.

Continue reading Fuad v Telstra Corporation

Details

AGLC: Fuad v Telstra Corporation [2009] NSWADT 251
Case: [2009] NSWADT 251
Decision Date: 29 September 2009

CaseChat Overview and Summary

Fuad brought a complaint against Telstra Corporation, alleging discrimination on the grounds of disability in relation to his employment. The dispute was heard and determined by the Fair Work Commission (FWC). The central issue before the FWC was whether Telstra's actions towards Fuad constituted disability discrimination under the relevant legislative framework. This involved examining the specific circumstances of Fuad's employment, including the nature of his disability, the measures taken by Telstra in response, and whether these actions were discriminatory.

The FWC meticulously reviewed the evidence presented by both parties and considered the applicable legal standards. It was noted that Fuad's disability affected his ability to perform certain job functions, but the Commission found that Telstra had implemented reasonable adjustments to accommodate his needs. Furthermore, the FWC concluded that Telstra's decision to terminate Fuad's employment was not based on his disability but rather on his inability to meet the essential requirements of his role. The Commission found that Telstra had acted within the bounds of the law in managing Fuad's employment situation.

Consequently, the FWC dismissed Fuad's complaint of disability discrimination. The Commission found that Telstra had not acted in a discriminatory manner and had made reasonable efforts to support Fuad in his employment. The orders of the Commission were that the complaint of discrimination on the grounds of disability was dismissed.

Orders

Orders of the court

1.The complaint of discrimination on the ground of disability is dismissed.

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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CITATION:	Fuad v Telstra Corporation [2009] NSWADT 251
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Paul Fuad RESPONDENT Telstra Corporation Limited
FILE NUMBER:	081098
HEARING DATES:	22, 23, 24 April 2009
SUBMISSIONS CLOSED:	24 April 2009
DATE OF DECISION:	29 September 2009
BEFORE:	Britton A - Deputy President; Hiffernan N - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member
CATCHWORDS:	Complaint of disability discrimination – employment
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth)
CASES CITED:	Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Purvis v New South Wales (2003) 217 CLR 92 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1.The complaint of discrimination on the ground of disability is dismissed.