Gluyas v Commonwealth of Australia
[2004] FMCA 224
•22 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GLUYAS v COMMONWEALTH OF AUSTRALIA | [2004] FMCA 224 |
| HUMAN RIGHTS – DISABILITY DISCRIMINATION – Application for summary disposal – disability discrimination in employment and harassment alleged – applicant suffers from Asperger's syndrome – allegation that required to perform ad hoc tasks – application not able to succeed as alleged and particularised. |
Disability Discrimination Act 1992 (Cth), ss.6, 15(2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46PO(2), 46PE, 46PH, 46PH(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Court Rules 2001, r.13.10(a), 13.10(b)
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91
General Steel Industries Ltd. v Commissioner for Railways (1964) 112 CLR 125
Salemi v Minister for Immigration and Ethnic Affairs (1976) 137 CLR 388
Gluyas v HREOC [2001] FCA 1322
| Applicant: | PHILIP WAYNE GLUYAS |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File No: | MZ 824 of 2001 |
| Delivered on: | 22 April 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 8 March 2002 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Garry Livermore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application is dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
That the Applicant file and serve any written submissions in relation to costs within 14 days.
That the question of any reply by the Respondent in relation to the question of costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 824 of 2001
| PHILIP WAYNE GLUYAS |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was employed as a trainee administrative service officer in the Australian Public Service from 4 November 1996 until 21 April 1997. He worked at the Department of Defence. He claims unlawful discrimination and harassment under the Disability Discrimination Act 1992 (Cth) (“DDA”). The disability he claims is that he has Asperger’s Syndrome. Medical reports exhibited to the applicant’s affidavits show that the features of the condition are a deficit of social and interpersonal understanding, extreme attention to details without the perspective of the relative importance of different details and the need to follow routines, again with an excessive attention to details which are not significant to other people.
The respondent makes their application pursuant to r 13.10 (a) and (b) of the Federal Magistrates Court Rules 2001 for dismissal of the application on the grounds that no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious.
It is important to identify the claim made to the Human Rights and Equal Opportunity Commission (HREOC). The court can only have jurisdiction over a claim if a complaint has been made to HREOC and that complaint has been terminated by the president of HREOC under s.46 PE or 46 PH and the President has given notice under ss.46 PH (2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – s.46 PO. Sub-s. 46 PO (3) of that Act provides:
The unlawful discrimination alleged to the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
The application must meet these criteria if the court is to have jurisdiction.
The application does not concern the circumstances surrounding the dismissal of the applicant from his employment in the Department of Defence. That was the subject matter of an earlier complaint by the applicant to HREOC which has been dealt with. It was the subject matter of an application to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was dismissed by Ryan J. (Gluyas v HREOC [2001] FCA 1322).
The applicant assembled a large number of documents for his complaint to HREOC. In the letter outlining the commissioner's reasons for terminating the complaint, the commissioner concludes that the applicant is alleging that the conduct of Flt Lt McNeill constituted harassment on the basis of disability. Flt Lt McNeill was in charge of the section to which the applicant was attached.
The applicant originally named the Department of Defence as the respondent. This was amended to Commonwealth of Australia. Directions were given that the applicant file and serve an affidavit setting out:
a)the sections of the Disability Discrimination Act 1992 upon which he relies;
b)particulars of compensation he seeks;
c)the acts of harassment which he alleges constitutes the discrimination.
The applicant filed affidavits which included an attachment headed "Particulars of Complaint”. He had received pro bono legal assistance in preparing these particulars. The particulars say that the applicant's duties included: keyboard tasks, mail processing, filing correspondence, collection and distribution of correspondence, obtain, recording and providing information about administrative matters, photocopying, drafting basic correspondence, and performing general administrative tasks as required.
The particulars allege that because of his personality traits a number of strategies were needed. These included the avoidance of work environments which required regular contact with a large number of staff or the general public, the flexibility to perform set tasks on a relatively independent basis, being free to concentrate on priorities with minimum distraction from ad hoc task of a non priority nature, and availability of support and clear and constructive feedback.
The particulars say that the applicant, after three months, put in place a checklist of tasks to offset the difficulties presented by his disability. He was able to schedule his daily activities around a listing of tasks which he checked after the completion of each activity. He alleges that on many occasions, Flt Lt McNeill required him to perform ad hoc tasks and duties outside of his routine. His disability prevented him from dealing with the constant changes in duties and order of priorities. He felt unable to cope and became very stressed. He alleges that on 10 March 1997 he submitted an application for sick leave taken the previous week. The specified nature of the illness was stress. He alleges that Flt Lt McNeill recommended that the application for sick leave be denied despite being aware that the ad hoc tasks had aggravated his condition and had caused the applicant psychological anguish.
In a subsequent affidavit the applicant made a further allegation that Flt Lt McNeill had limited his access to training by restricting his time for the Public Administration Traineeship during working hours resulting in him having to complete the requirements outside of working hours. The affidavit again referred to the recommendation against sick leave.
Disability discrimination
The particulars of complaint, the affidavits of the applicant and his oral submissions showed that the applicant alleged that the directions by Flt Lt McNeill to perform ad hoc tasks constituted discrimination as described in s.6 of the DDA and were prohibited by s.15(2) of the DDA. Section 6 of the DDA provides:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Subsection 15(2) provides:
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
The claim is put in a way that it is not an allegation of harassment, but one of indirect discrimination. Nevertheless, the court still has jurisdiction under ss.46 PO because it arises out of substantially the same acts, omissions or practices which was the subject of complaint to HREOC. It is an act or practices of Flt Lt McNeill which is the subject matter of complaint. The particulars have identified them as the direction to perform ad hoc tasks and the refusal to recommend sick leave. The direction to perform ad hoc tasks is said to give rise to the indirect discrimination. The application to the court must be confined to these actions. In particular, the claim cannot encompass the applicant's termination of employment because that was not part of the complaint.
For the respondent, it was argued that requiring the applicant to perform ad hoc tasks was not requiring him to comply with a requirement or condition. It was submitted that Flt Lt McNeill was performing no more than the normal supervisory function which would be expected of her. That is, she was not requiring the applicant to comply with a requirement or condition but simply supervising his work in the normal fashion expected of her.
The tasks which the applicant alleges he was required to perform ad hoc were part of his normal duties. What the applicant alleges is that he would schedule a list of tasks which he checked after the completion of each activity. He then alleges that on many occasions Flt Lt McNeill required him to perform ad hoc tasks and duties outside his routine. What he is alleging is that there were a number of individual incidents where this occurred. He does not say how many there were or give any details about any of them.
The settled principle is that a summary order which prevents a party pursuing a claim according to the ordinary course of procedure should only be made in a very clear case: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Ltd. v Commissioner for Railways (1964) 112 CLR 125; Salemi v Minister for Immigration and Ethnic Affairs (1976) 137 CLR 388.
In the considerable volume of material that the applicant sent to HREOC and in affidavits, the applicant does not allege that he was unable to perform these tasks. He does not allege that they were tasks which were not part of his duties. He does not allege that Flt Lt McNeill, as his supervisor, was not entitled to direct him to perform these tasks. For the applicant to succeed, he will have to establish that there was a requirement or a condition in his employment that he did not comply with or was unable to comply with. He will need to do this to establish discrimination within the meaning of s.6 of the DDA. The only matter he put forward which could possibly be a requirement or condition is the requirement to perform ad hoc tasks. He gives no examples of these. He is not alleging a pattern of behaviour. On the contrary, he says that there was a series of isolated instances.
It is not possible to see how the applicant can succeed. He has been required to particularise his case by affidavit. If the matter was to proceed to trial, his evidence would be that he was required to perform ad hoc tasks. It is impossible to see how the requirement to comply with a requirement or condition could be established from the way the applicant has put his case.
The applicant must then make a case under ss.15(2). His case must be under paragraph (b), that is, that there was discrimination against him in the terms or conditions of employment. It is impossible to see from his assertion of a requirement to perform ad hoc tasks what the terms or conditions of employment were that were involved in the discrimination.
Harassment
HREOC interpreted the applicant's complaint as one of harassment. The matters which the applicant raises are that he was required to perform ad hoc tasks, the refusal of sick leave and that he was restricted in the time he could spend attending a training program and was therefore required to do it after hours.
Subsections 35 (1) and (2) of the DDA provides:
(1) It is unlawful for a person to harass another person who:
(a) is an employee of that person; and
(b) has a disability;
in relation to the disability.
(2) It is unlawful for a person to harass another person who:
(b) is an employee of a person by whom the first-mentioned person is employed; and
(c) (b) has a disability;
in relation to the disability.
Harassment is not defined in the Act. I do not consider that any of the matters raised could constitute harassment. The requirement to perform ad hoc tasks, all of which were part of the applicant's normal duties, cannot constitute harassment. Placing a restriction on the time for training, which is not training for the tasks that the applicant was undertaking, cannot constitute harassment. It is alleged that sick leave was not approved. Nothing other than a failure to approve the sick leave is alleged. The applicant does not say that he provided a medical certificate. He alleges it was for a short period of time because of stress. Its refusal cannot constitute harassment.
It is clear that the applicant cannot succeed on the basis of the allegations put and particularised. The application for summary disposal is successful.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
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