Higginson v Cargill Australia Limited

CITATION:	Higginson -v- Cargill Australia Limited [2001] NSWADT 152
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT William Higginson RESPONDENT Cargill Australia Limited
FILE NUMBER:	991095
HEARING DATES:	05/04/2001, 06/04/2001
SUBMISSIONS CLOSED:	04/06/2001
DATE OF DECISION:	09/13/2001
BEFORE:	Britton A - Judicial Member; Strickland J - Member; Farmer L - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Briginshaw -v- Briginshaw (1938) 60 CLR Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 Commonwealth -v- Humphries [1998] FCA 1031 HR&EO Commission -v- Mt Isa Mines Ltd (1993) 118 ALR Waters & Ors -v- Public Transport Corporation (1991) 173 CLR 349 Waterhouse -v- Bell (1991) EOC 92-376 Commissioner of Corrective Services -v- Maxwell [2001] NSWADTAP 21 Waters -v- Public Transport Corporation (1991) 173 CLR 393 Haynes -v- CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Kennedy -Taylor (NSW) Pty Ltd -v- WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 State Transit Authority -v- Slowey [1999] NSWSC 47 Kitt -v- Tourism Commission (1987) EOC
REPRESENTATION:	APPLICANT P Smith, solicitor RESPONDENT K Morris, barrister
ORDERS:	The respondent to pay to the applicant the sum of $36,469.08 within fourteen days of the date of this decision.

1 This decision concerns a complaint of unlawful discrimination on the grounds of disability in the area of employment. The complainant, William Higginson, alleges that his employer, Cargill Australia Limited (the respondent), subjected him to unlawful discrimination contrary to the provisions of s 49D of the Anti-Discrimination Act 1977 (the Act) by refusing to allow him to return to work following surgery, despite the fact that his doctor certified him fit for work. The respondent denies that its decision not to allow Mr Higginson to return to work constitutes unlawful discrimination.

2 The applicant lodged a complaint under the Act with the President of the Anti-Discrimination Board (the President) on 7 December 1998 alleging discrimination on the ground of disability. By letter dated 30 August 1999 the President referred this complaint to the Tribunal under s 94(1) of the Act, having reached the view that the matter could not be resolved through conciliation.

Relevant Legislative provisions

3 The Act defines “disability” at s 4 to mean:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
4 The substantive provision on which Mr Higginson relies is s 49D of the Act. That section provides:
49D(1) [Offering Employment] It is unlawful for an employer to discriminate against…