Joyce v St George Bank Limited - [2005] FMCA 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOYCE v ST GEORGE BANK LIMITED

[2005] FMCA 868

HUMAN RIGHTS – Disability discrimination in employment – employee suspended and dismissed – employer’s actions not linked to the employee’s disabilities.

PRACTICE AND PROCEDURE – Summary dismissal of a proceeding at a final hearing, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

Anti-Discrimination Act1977 (NSW), s.111
Disability Discrimination Act 1992 (Cth), s.15
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Batenberg v The Union Club (No 2) [2003] NSW ADT 187
Forbes v Australian Federal Police [2004] FCAFC 95
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (W A) (No2) (1992) 111 ALR 377

Applicant:

PETER JOYCE

Respondent:

ST GEORGE BANK LIMITED

File Number:

SYG 1360 of 2004

Judgment of:

Driver FM

Hearing date:

1 June 2005

Delivered at:

Sydney

Delivered on:

1 June 2005

REPRESENTATION

The applicant appeared in person

INTERLOCUTORY ORDERS

The Court directs that the application be amended to delete Jan Newton and Gloria Hansen as respondents and substitute St George Bank Limited as the sole respondent.
The application is dismissed summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the proceedings, including any reserved costs, fixed by reference to the Federal Magistrates Court scale of costs.
The Court certifies, for the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth), that it was reasonable for the respondent to employ an advocate at today’s hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1360 of 2004

PETER JOYCE

Applicant

And

ST GEORGE BANK LIMITED

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application under s.46PO of the Human Rights and Equal Opportunity Commission Act1986 (Cth) alleging discrimination contrary to the Disability Discrimination Act 1992 (Cth) (“the DDA”). The applicant, Mr Joyce, seeks relief in the form of reinstatement to his former employment and damages. The respondents to the original application were two employees of the St George Bank. At the commencement of the hearing today and with the agreement of the parties I ordered that the application be amended to delete the individual respondents and to substitute the bank as the sole respondent.
The bank was one of three respondents to the complaint of discrimination which had been made to the Human Rights and Equal Opportunity Commission, the termination of which led to these present proceedings. The respondent had filed a response to the application on 7 December 2004 which purported to raise a jurisdictional issue on the basis that the applicant did not suffer from a disability within the meaning of the DDA. Ms Eastman took the approach at the hearing today that any issue of jurisdiction could only be dealt with following at least the applicant's production of evidence and that there might be a preliminary application following the production of that evidence. That is indeed what occurred.
Mr Joyce relies upon an amended application filed on 6 October 2004 and three affidavits by himself filed on 10 May 2004, 12 November 2004 and 7 January 2005. He was cross-examined on his affidavits.
I also received as evidence documents put to him in the course of cross‑examination by Ms Eastman. They were annexures GH1, GH2, GH3 and GH4 to an affidavit by Gloria Jean Hanson made on 20 December 2004. The affidavit itself has at this stage not been read.
The other documents which I have before me are a copy of the employment contract between the parties signed by Mr Joyce (exhibit R1) and the information sheet accompanying Mr Joyce's application to the Court, to which was attached the notice of termination by the delegate of the President of the Commission dated 30 April 2004 and two attachments. The first attachment is a letter to Mr Joyce by the delegate dated 30 April 2004 summarising his complaint and the response to it and explaining the reasons for the termination of the complaint. Attachment B is a copy of the complaint form completed by Mr Joyce.
The complaint to the Commission, the bank's response to it and the assessment by HREOC are all conveniently set out in the letter to Mr Joyce from the President’s delegate to Mr Joyce. Mr Joyce was at the relevant time an employee of the St George Bank at the Dee Why branch. He asserts that on 24 September 2003 his manager left to attend a meeting but before leaving she gave instructions to other staff to keep an eye on him. Mr Joyce claims that the following day he called his manager to say that he was sick and would not be coming to work. Mr Joyce claims that the manager informed him that three members of staff had complained about him. Mr Joyce says that on
29 September 2003 his manager asked to see him to discuss his employment appraisal. As part of this appraisal the manager asked him why he was telling lies and he replied that, “if you tell lies you go to hell”. Mr Joyce says that he was on sick leave on 1 and 2 October 2003 and upon returning to work on 3 October 2003 he asked one of the staff who had complained about him why she was checking on him and was allegedly told that the manager had requested that information. Mr Joyce asserts that later that day the manager wanted to interview him again. However, he declined as he was on a rostered tea break. He claims that he was given a letter dated 7 October 2003 which outlined four allegations against him and that he subsequently attended an interview with the regional manager regarding those allegations and provided his version of events and answered all questions asked of him.
Mr Joyce says that he was then suspended and subsequently dismissed from his employment on 27 October 2003. The Commission treated the complaint made by Mr Joyce as one of disability discrimination as after Mr Joyce had allegedly taken sick leave on two occasions he was required to attend disciplinary interviews and subsequently the bank dismissed him on a basis that Mr Joyce asserts was linked to his taking sick leave. At this point, I should note that in his complaint form made to the Commission Mr Joyce had ticked a box stating that he had been discriminated against by reason of his age and religious belief but he had also ticked a box and added handwritten material to the form which makes clear that he was concerned about what he saw as discrimination linked to his taking sick leave. In the circumstances, it seems that the Commission properly treated the complaint as one of asserted disability discrimination.
Mr Joyce in these proceedings made clear that he was only pursuing a claim of direct disability discrimination and that he was asserting breaches of ss.15(2)(c) and (d) of the DDA. The detriment alleged is his suspension from employment which was admitted and the other alleged discrimination relates to his dismissal from employment, which is also admitted.
In response to the complaint the bank said the following. According to Mr Joyce's employment record he had accrued forty two sick days during his employment. Mr Joyce's employment was terminated on 27 October 2003 due to serious allegations made against him in relation to his conduct during his employment. The bank provided examples from his work performance reviews regarding issues of concern relating to his conduct. The bank claims that he was rude and aggressive to his fellow employees, the manager of the bank and with customers.
The bank denies that Mr Joyce received a disciplinary interview related to his taking sick leave and the bank states that he did have a disciplinary letter from the bank regarding suspension from duties on
7 October 2003, that his was related to his behaviour. The bank confirms that on 24 September 2003 Mr Joyce's manager asked other staff to watch him. This is said to be because of his performance review for 2003, in particular relating to him signing off before finishing time and taking more than one coffee break. The bank states that it might be correct that in a telephone conversation with him on
25 September 2003 he was informed that other members of staff had made complaints about him. The bank states that on 29 September 2003 an appraisal meeting took place in response to performance issues raised by the manager to which Mr Joyce responded that the manager was telling lies and that she would rot in hell because that is where all liars go. The bank states that Mr Joyce's manager requested to interview him again on 3 October 2003, however Mr Joyce refused to speak to his manager and became agitated, rude and aggressive, telling his manager to go away and that he did not speak to liars. The bank asserts that it was after this incident that he was suspended and he was requested to provide his response to the allegations outlined in the bank's correspondence of 7 October 2003. The bank says that in a meeting to discuss the allegations, his response to questions was a complete denial of the allegations without further explanation. The bank denies that it discriminated against Mr Joyce on the basis of him taking sick leave and states that the bank terminated his employment because of his behaviour.
The delegate of the President in her letter then discussed Mr Joyce's allegations and the bank's response to them and concluded that the complaint of disability discrimination was lacking in substance. It was on that basis that the complaint was terminated by the delegate. The termination established the jurisdiction of this Court to deal with the application to it provided that the proceedings in the Court were the same in character as the complaint made to the Commission.
At the close of the applicant's evidence this morning Ms Eastman made an oral application for the summary dismissal of the proceeding pursuant to rule 13.10(a) of the Federal Magistrate's Court Rules (Cth) (“the Federal Magistrates Court Rules”) on the basis that no reasonable cause of action is said to be disclosed in the proceeding. I discussed with Ms Eastman in the course of argument on that application whether I should permit an application in those terms or whether I should treat the application as a no case submission and put the respondent to an election whether to make that submission and not call any evidence or to not make that submission. Following the luncheon adjournment Ms Eastman took me to two authorities relevant to this question. The first is the decision of French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (W A) (No2) (1992) 111 ALR 377. In that case the court held that although as a general rule a defendant will not be permitted to advance a submission at the close of a plaintiff's case that there is no case to answer unless an election is first made to call no evidence, the question is ultimately a discretionary one for the trial judge.
The second decision is one of the New South Wales Administrative Decisions Tribunal in Batenberg v The Union Club (No 2) [2003] NSW ADT 187. That case related to an application for summary dismissal pursuant to s.111(1) the Anti-Discrimination Act1977 (NSW). It is probably relevant that that provision permits an application for summary dismissal under the section to be made at any stage in the proceedings. Rule 13.10 is silent on the question of whether an application under it can be made at a final hearing. The rule relates to an interlocutory procedure and I am not aware of any previous case where a party sought to take advantage of the rule at a final hearing.
Prior to the luncheon adjournment I put Ms Eastman on notice that
I proposed to treat her application as a no case submission and that
I proposed to put her client to an election whether to proceed on that basis and call no evidence or not to proceed with the application at all.
Ms Eastman persuaded me after the luncheon adjournment that
I should give her the opportunity to make further submissions on that issue depending on the outcome of the application based upon rule 13.10(a). I accepted that, while the making of an application for summary dismissal at a final hearing is most unusual, rule 13.10 leaves open that possibility and I should deal with the application. I agreed that if the summary dismissal application failed for the reason that
Mr Joyce's application could succeed if supported by evidence adduced by cross-examination of the respondent's deponents, then the interests of the administration of justice might require that I permit evidence by the respondent to be led. That is the only reason why I would be minded to permit the respondent to lead evidence in this case if the application for summary dismissal were unsuccessful. For reasons which follow, the issue does not need to be considered further, because the application for summary dismissal is successful.
Mr Joyce asserts that he suffers from bronchitis and high blood pressure. I accept that both are disabilities within the meaning of that term as defined in the DDA. In the course of oral evidence today, Mr Joyce also asserted that he suffers from time to time from a viral infection known as upper respiratory tract infection. That also can be a disability for the purposes of the DDA. In exploring the issues with Mr Joyce, he was prepared to concede that he could not establish any link between his high blood pressure and his sick leave. He limited himself to seeking to establish a link between his taking sick leave and his bronchitis and his upper respiratory tract infections.
That said, Mr Joyce has not presented any medical evidence that he suffers from either ailment. I have only his own assertions. If the respondent's affidavit evidence had been read, that would have included medical certificates presented by Mr Joyce to the bank indicating periods during which he suffered from bronchitis and upper respiratory tract infection. That evidence has not, at this stage, been read, but I am prepared to accept, on the basis of the uncontradicted evidence of Mr Joyce in his affidavits, that he does suffer from bronchitis and upper respiratory tract infection, which I accept are disabilities under the DDA.
I am also prepared to accept, on the basis of his evidence, that he took some four days sick leave in 2003 by reason of those disabilities. Unfortunately for Mr Joyce, his case founders on his inability to establish any link between his suspension and subsequent dismissal from employment and either his taking sick leave or his disabilities.
It was plain in what Mr Joyce said under cross-examination that while he believes that his taking sick leave was the reason he was suspended and subsequently dismissed (or at least a reason), this is only his subjective belief.
The documentary evidence clearly points to concerns on the part of the employer about Mr Joyce's behaviour. Those concerns were raised with him, in part, at a performance appraisal interview. They were raised with him again in a telephone conversation with the manager immediately preceding his suspension. There was a further discussion prior to Mr Joyce's dismissal. Mr Joyce considers that he was treated unfairly. He denies the allegations about his behaviour that were made to him. He disputes the details of what occurred at the various interviews and conversations between him and his managers. He, however, does not dispute that the allegations were made against him and he does not dispute the facts appearing on the face of the documents that were put to him.
There is nothing in the documentary evidence to suggest, let alone establish, that Mr Joyce's taking of sick leave was in any way connected to his suspension from duty and his subsequent termination from employment. The most that can be said is that in a conversation with a Mrs Newton on 29 September 2003, Mrs Newton referred to Mr Joyce taking sick leave following disagreements with other staff at the work place. Even that does not establish any link, either with the suspension and dismissal decisions or, indeed, with Mr Joyce's disabilities. To the extent that any inference can be drawn from that conversation, it is an inference that Mrs Newton may have suspected that Mr Joyce was misusing his sick leave entitlements. In other words, Mrs Newton may have suspected that Mr Joyce was malingering. No inference can be drawn that Mrs Newton believed that there was anything wrong in Mr Joyce taking sick leave if he was genuinely ill.
In Forbes v Australian Federal Police [2004] FCAFC 95, the Full Federal Court affirmed in part a decision of mine in which I had held that the AFP did not discriminate against the applicant in that case in circumstances where the AFP believed that the applicant had been malingering. It is not a breach of the DDA to treat an employee unfavourably on the basis of a belief on the part of an employer that the applicant has no disability. At its highest, based on the rather skimpy evidence of the conversation with Mrs Newton, that is all that could be established by Mr Joyce.
There is no possibility of Mr Joyce establishing that he was suspended or dismissed from his employment because he took sick leave by reason of his bronchitis or upper respiratory tract infection. Because there is no possibility of Mr Joyce establishing either of those things his application is doomed. It must necessarily fail.
I am persuaded in these circumstances that I should dismiss his application as disclosing no reasonable cause of action and I do so.
On the question of costs, the application having been dismissed summarily, Ms Eastman properly seeks an order for costs. Mr Joyce, in his submissions, indicated that whatever order was made he would be unwilling or unable to meet. He may be impecunious but impecuniosity is not a reason for the Court to refrain from making a costs order. In this matter costs should follow the event and a costs order should be made by reference to the Federal Magistrates Court scale of costs in Schedule 1 to the Federal Magistrates Court Rules.
For the assistance of the parties, I note that while this matter was listed for a two day hearing it has been completed in somewhat less than one day and, in those circumstances, I put to Ms Eastman and she accepted that stage five costs should only be recoverable for a one day matter.
It would also follow that a daily hearing fee would only be recoverable for a one day matter. The matter has extended beyond half a day so a full day hearing fee would be recoverable.
I also certify for the purposes of rule 21.15 of the Federal Magistrates Court Rules that it was reasonable for the respondent to employ an advocate at today's hearing. The consequence of that is that an advocacy loading is payable in addition to the usual daily hearing fee.
I will therefore order that the application is dismissed summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules and that the applicant is to pay the respondent's costs and disbursements of and incidental to the proceedings, including any reserved costs, fixed by reference to the Federal Magistrates Court scale of costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 June 2005