FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174
File number(s): SYG 339 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 November 2024 Catchwords: INDUSTRIAL LAW – where applicant employee had been a long serving employee of respondent employer in the role of “Emergency Customer Service Operator” (ECSO) – where for almost two years employer considered employee was underperforming and had placed the employee under performance management plans and had issued letters of warning – where employer suspended the employee from her work without paying wages on the basis of what employer understood medical reports to have conveyed about the employee’s capacity to perform the roles of an ECSO – whether by not paying the employee wages while employee was suspended the employer contravened provisions of the enterprise bargaining agreement that applied to the employment – whether by suspending the employee without paying wages the employer breached the contract of employment or unlawfully discriminated against the employee on the grounds of her disability – whether as a consequence of the employer’s suspension of the employee the employee suffered psychiatric injury – by suspending employee without pay the employer repudiated the employment contract but did not discriminate or unlawfully discriminate against the employee – by reasons of the breach of the employment contract the employee suffered psychiatric injury which incapacitated her from being able to work – damages for breach of contract awarded. Legislation: Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(d)
Fair Work Act 2009 (Cth) ss 50, 323(1)
Telecommunications Act 1997 (Cth) ss 7, 19(1), 56, 466
Telecommunications (Consumer Protection And Service Standards) Act 1999 (Cth) ss 6, 147(1), (11)
Telecommunications (Emergency Call Service) Determination 2019 (Cth) ss 6, 19, 20, 21(2), 40, 41, 42(1), 43, 45, 48
Cases cited: Addis v Gramophone Co Ltd [1901] AC 488
Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542
Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435
Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859
Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Elisha v Vision Australia Limited [2024] HCATrans 71
Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779
Hanley v Pease & Partners Limited [1915] 1 KB 698
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Morton v Lamb (1797) 7 TR 125; 101 ER 890
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199
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- Case
- [2024] FedCFamC2G 1174
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Telstra's decision to suspend Ms Martin without pay breached the EBA and the employment contract, and if such actions constituted unlawful discrimination. Furthermore, the court needed to determine if Ms Martin's psychiatric injury was a result of the employer's actions, and if so, whether the injury was a direct consequence of the alleged breaches.
The court found that Telstra did not breach the EBA or discriminate against Ms Martin under the Disability Discrimination Act. However, it did find that Telstra breached the employment contract by suspending Ms Martin without pay. This breach led to Ms Martin suffering a psychiatric injury, which incapacitated her from working. As a result, the court awarded Ms Martin damages for the breach of contract, comprising lost wages and general damages. The court calculated the lost wages based on the assumption that Telstra would have continued to employ Ms Martin until a certain date or alternatively, until an earlier termination date. The total damages awarded included both lost wages and general damages.
In conclusion, the court ruled in favour of Ms Martin on the breach of contract claim, awarding her $11,994.41 in lost wages and $30,000 in general damages. The claims regarding unlawful discrimination and breach of the EBA were dismissed.
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