Govier v Unitingcare Community - [2017] HCATrans 183

[2017] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B12 of 2017

B e t w e e n -
TONI MAREE GOVIER
Applicant
and
UNITINGCARE COMMUNITY (ABN 28 728 322 186)
Respondent
Application for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 SEPTEMBER 2017, AT 9.30 AM

MR K.C. FLEMING, QC: If the Court pleases, with me is MR W.D.P. CAMPBELL for the appellant. (instructed by Kevin Bradley Solicitor)

MR R.J. DOUGLAS: QC: If the Court pleases, I appear with my learned friend, MR R.C. MORTON, for the respondent. (instructed by McInnes Wilson Lawyers)

BELL J: Thank you, Mr Fleming. Mr Fleming, just as a preliminary matter, there is an unopposed application, I think, filed by the respondent to substitute the “Uniting Church in Australia Property Trust Q” in place of “Unitingcare Community” and I understand there is no opposition to the making of that order?

MR FLEMING: There is no opposition, your Honour, no.

BELL J: Yes, that order is made. Mr Fleming.

MR FLEMING: Thank you, your Honours. In our submission, the special leave question is whether or not the State of New South Wales v Paige (2004) 60 NSWLR 371 precludes the obligation of an employer from having a duty of care to an employee merely because the acts are done in the course of the workplace investigation. We say that is especially so when the employer itself is in control of the whole of the process in the investigation as distinct from a case like Paige that we will come to in a moment.

Your Honours, a very brief sketch of the facts. First, the correctness of Paige is not challenged but rather we challenge the application of Paige to everyday investigations. As to the facts, in the course of her employment with the respondent as a carer for disabled people, the applicant was attacked violently by a co‑worker at her workplace and suffered physical and psychiatric injuries. The attack was unprovoked and occurred on 3 December 2009.

Immediately after that incident the applicant phoned her supervisor and told him that she had been attacked by the co‑worker, she had called the police and she was going to hospital. The supervisor later heard her repeat that complaint to staff at the hospital and the supervisor was also told by the client that the co‑worker had hit the applicant.

The applicant claimed damages for negligence against the respondent employer for psychiatric injury consequent upon the attack but she failed in that claim because of a question of foreseeability and the respondent – on the basis that the respondent had no reason to think that the co‑worker was likely to attack the applicant.

The respondent had immediately commenced an investigation into the applicant’s conduct and on the same day as the attack on 3 December 2009…

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 Govier v Unitingcare Community

Details

AGLC: Govier v Unitingcare Community [2017] HCATrans 183
Case: [2017] HCATrans 183
Decision Date

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Govier v Unitingcare Community*, concerning a dispute between Ms. Govier and her former employer, Unitingcare Community. Ms. Govier alleged that Unitingcare Community had engaged in unlawful discrimination against her on the grounds of her disability, contrary to the provisions of the *Disability Discrimination Act 1992* (Cth).

The central legal issue before the Full Federal Court was whether Unitingcare Community had subjected Ms. Govier to unlawful discrimination by failing to make reasonable adjustments to her employment conditions to accommodate her disability. This required the court to consider the scope of the employer's positive duty to make reasonable adjustments and the circumstances under which a failure to do so could constitute unlawful discrimination.

The Court reasoned that the employer's obligation to make reasonable adjustments is not absolute and must be balanced against the operational requirements of the employer and the inherent requirements of the job. It applied the principles established in previous case law, emphasizing that the assessment of what constitutes a "reasonable adjustment" involves a multi-factorial analysis, considering factors such as the nature of the disability, the impact on the employee's ability to perform the essential functions of the role, and the feasibility and cost of the proposed adjustments for the employer. The Court found that Unitingcare Community had taken reasonable steps to accommodate Ms. Govier's disability and that its actions did not amount to unlawful discrimination.

Orders