Gama v Qantas Airways Ltd (No 2)

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAMA v QANTAS AIRWAYS LIMITED (No.2) [2006] FMCA 1767

HUMAN RIGHTS – Race Discrimination − where applicant claimed discrimination in the course of his employment − where applicant alleged the use of racist comments by co-workers and superiors − where applicant claimed discrimination in relation to reporting requirements and general treatment in respect of sick leave and work attendance − where applicant claimed respondent failed to offer him the same conditions of work and opportunities for training and promotion offered to other employees − whether inference can be drawn that the racially discriminatory conduct occurred − where applicant alleged management employees were aware of and participated in discriminatory conduct − whether respondent vicariously liable for breaches of the Race Discrimination Act 1975 pursuant to s.18A.

HUMAN RIGHTS − Disability Discrimination − where applicant alleged he was treated less favourably because of his disability following workplace injuries and the sequelae of those injuries and their treatment − where applicant claimed the respondent denied him access to or limited his access to opportunities for promotions, transfer or training on the grounds of his disability − where the applicant alleged the discriminatory conduct engaged in was within the actual or apparent authority of the respondent’s employees − whether the respondent failed to take reasonable precautions or exercise due diligence to avoid the conduct − whether respondent vicariously liable under s.123 Disability Discrimination Act 1992 for the discriminatory conduct.

DAMAGES − Assessment − where applicant’s claims of race and disability discrimination partially made out − whether medical assessment supports an argument the found discriminatory events contributed to the applicant’s depressive illness − assessment of damages for psychiatric injury − assessment of damages for past and future medical expenses − whether an apology should be the subject of an order of the court.

Disability Discrimination Act 1992, ss.5, 6, 11, 15, 123
Racial Discrimination Act 1975, ss.9, 15, 18A, 18C
International Convention on the Elimination of all Forms of Racial Discrimination, Article 5

Gama v Qantas Airways Limited (No. 1) [2006] FMCA 11
G v H (1994) 124 ALR 353
Carr v Baker (1936) 36 SR (NSW) 301
Jones v Dunkel (1959) 101 CLR 298
Peter Li v Joseph Eliezer (1997) (Unreported, NSW Supreme Court, 14516 of 1996; 1 May 1997)
Nominal Defendants v Owens (1978-79) 22 ALR 128
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Richards Evans & Co Ltd v Astley [1911] AC 674
Luxton v Vines (1952) 85 CLR 352
Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331
Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133
Sharma v Legal Aid (Qld) [2002] FCAFC 196
Ferrus v Qantas Airways Ltd [2006] FCA 812
Briginshaw v Briginshaw (1938) 60 CLR 336
Department of Health v Arumugan (1988) VR 319
Victoria v Macedonian Teachers Association of Victoria Inc and Anor [1999] FCA…

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Details
Case
[2006] FMCA 1767
Decision Date

CaseChat Overview and Summary

The case of Gama v Qantas Airways Ltd (No 2) involved the applicant, Mr Gama, who brought claims against his employer, Qantas Airways Ltd, alleging breaches of the Race Discrimination Act 1975 and the Disability Discrimination Act 1992. Mr Gama claimed that during the course of his employment, he was subjected to racist comments by his colleagues and superiors, and was treated less favourably in relation to reporting requirements, sick leave, and work attendance. He further asserted that he was denied the same conditions of work, training, and promotion opportunities afforded to other employees. Additionally, Mr Gama claimed that his disability, resulting from workplace injuries, led to discriminatory treatment by the respondent, including limited access to promotional opportunities and training.

The legal issues before the court were whether it could be inferred that the alleged racially discriminatory conduct occurred, and if the respondent could be held vicariously liable for breaches of the Race Discrimination Act 1975 and the Disability Discrimination Act 1992. The court needed to determine if the respondent failed to take reasonable precautions or exercise due diligence to prevent the discriminatory conduct, and if management employees were aware of and participated in the discriminatory behaviour. Moreover, the court had to assess the damages, including psychiatric injury and medical expenses, and consider whether an apology should be ordered as part of the court's final orders.

The court found that Mr Gama's claims of race and disability discrimination were partially substantiated. It was determined that the discriminatory events contributed to Mr Gama's depressive illness, and the medical assessment supported this claim. The court awarded Mr Gama damages for breach of the Race Discrimination Act 1975 and the Disability Discrimination Act 1992, totalling $71,692.70 including interest. The court also reserved the matter of costs, pending further submissions. The court did not order an apology from the respondent, as it was not deemed necessary under the circumstances.

Orders

Orders of the court

1.

The Respondent to pay the applicant $71 692.70 as damages including interest for breach of s.9 of the Racial Discrimination Act 1975 and s.15(2)(d) of the Disability Discrimination Act 1992.

2.

Costs reserved.

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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