FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McCORMACK v COMMONWEALTH OF AUSTRALIA | [2007] FMCA 1245 |
| HUMAN RIGHTS – Disability discrimination in employment – harassment in relation to disability – applicant with cancer and anxiety condition – questions at job interview – referee reports – placement on return from sick leave – harassment by fellow employee – employer’s complicity in harassment – higher duties – request for transfer – failure of temporary employer to find permanent position – refusal of voluntary redundancy/job swap – alleged corporate knowledge and opinion – alleged reputation of applicant as health risk – discrimination because of disability not proved – complicity in harassment not proved – applications dismissed. |
| Disability Discrimination Act 1992 (Cth), ss.4, 5, 10, 15, 35, 122, 123, 124 Federal Magistrates Act 1999 (Cth), s.3 Public Services Act 1999 (Cth) |
Federal Court Rules (Cth)
Federal Magistrates Court Rules2001 (Cth) r.1.03
| Commonwealth of Australia v Humphries (1998) 86 FCR 324 Jones v Dunkel (1959) 101 CLR 298 O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 |
IN CAG 34 OF 2003
| Applicant: | PATRICK McCORMACK |
| Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF THE SENATE) |
| File number: | CAG 34 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 15, 16, 17, 18 November 2005 |
| Date of last submissions | 10 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Sharwood |
| Solicitors for the Applicant: | Higgins Solicitors |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
IN CAG 28 OF 2004
| Applicant: | PATRICK McCORMACK |
| Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS) |
| File number: | CAG 28 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 15, 16, 17, 18 November 2005 |
| Date of last submissions | 10 February 2006 |
| Delivered at: | Canberra |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Sharwood |
| Solicitors for the Applicant: | Higgins Solicitors |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
IN CAG 34 OF 2003
The application filed on 22 December 2003 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
IN CAG 28 OF 2004
The application filed on 4 August 2004 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 34 OF 2003
| PATRICK McCORMACK |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF THE SENATE) |
Respondent
CAG 28 OF 2004
| PATRICK McCORMACK |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS) |
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- AGLC
- McCormack v Commonwealth [2007] FMCA 1245
- Case
- [2007] FMCA 1245
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Commonwealth's actions constituted discrimination under the Act. Mr. McCormack's argument hinged on the assertion that an able-bodied comparator would have been treated more favourably in his position. The court examined the evidence regarding the job swap arrangement, the communications between Mr. McCormack and the Department of Senate and the Office of the Secretary (DOS), and the context in which Mr. Nugent's decision was made. The court found that while Mr. McCormack had anticipated a permanent position, DOS had consistently communicated that this was not guaranteed and was contingent upon Mr. Nugent's decision. Additionally, the court noted that DOS had a policy against making temporary transfers permanent without merit selection, and this policy was further complicated by ongoing negotiations for a new enterprise agreement which had raised concerns among staff about promotion prospects.
After considering all the evidence, the court concluded that the Commonwealth's decision did not amount to discrimination as Mr. McCormack had not demonstrated that an able-bodied person in a similar situation would have been treated differently. The court rejected the argument that the staff issue raised by DOS was an ex post facto justification for their decision, finding that it was a legitimate and pre-existing policy. Therefore, the court dismissed Mr. McCormack's application, finding that the Commonwealth had not contravened the Disability Discrimination Act.
The court ordered that the application be dismissed and that Mr. McCormack pay the Commonwealth's costs. The court also certified that this was an appropriate case for each party to be represented by counsel.
Orders
Orders of the court
IN CAG 34 OF 2003
1.
The application filed on 22 December 2003 be dismissed.
2.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
3.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
IN CAG 28 OF 2004
1.
The application filed on 4 August 2004 be dismissed.
2.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
3.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
But on the evidence it is stretching things to conclude that an able bodied comparator would have been treated differently:·Mr McCormack certainly entertained an expectation of a permanent position·DOS officers had always said that this was never more than a possibility. Ms Avery says in a letter of 10 April 2001:The exchange currently in place between you and the Senate employee concerned has been agreed between this department and the Department of Communications for a period of approximately 12 months. The Senate employee has been given undertakings in relation to the exchange arrangement that if, at the end of the agreed period, his preference is that he return to duties with the Senate Department, he will be able to do so, If that Senate employee states a preference for a move to the Department of Communications as an ongoing employee, consideration can be given by both departments to a possible exchange between you and the Senate employee on an ongoing basis. (emphasis added)·the evidence of the other DOS witnesses is completely consistent with this letter·it was always pointed out to Mr McCormack that any consideration of a permanent position was dependent on what Mr Nugent finally decided to do·because of some difficulties Mr Nugent had had with one of his supervisors at DOS, senior officers at DOS were adamant that they did not want anything done which might suggest to Mr Nugent that he was being pushed out·Mr Nugent appears to have reserved his position until very late – he did not advise DOS until 19 December 2001 that he wished to stay at DCITA – and changed it on a number of occasions·Mr Nugent did not stay at DCITA but returned to DOS although the precise circumstances surrounding his return are unclear – it appears it was when the twelve month temporary transfer/job swap ended·a number of DOS witnesses made it clear that it would be out of the ordinary at DOS for a person on temporary transfer becoming permanent without merit selection ·Mr McCormack applied for DOS advertised vacancies and was unsuccessful in a merit selection·the possibility of a permanent transfer at level became more difficult at the time because of negotiations for a new certified or enterprise agreement during which staff had expressed concerns about the implications for their prospects of promotion·a permanent transfer “would undermine undertakings given to staff”. I reject Mr McCormack’s contention that the staff issue amounts to an ex post facto justification. He submitted that if the proposed permanent job swap had taken place “there could never be the suggestion that Mr McCormack took someone’s position.” I agree with DOS that this is erroneous:The applicant would have been taking Mr Nugent’s position. If Mr Nugent had simply transferred from DOS to DCITA, his position would have been advertised. Other PEL 1 officers at DOS, and any APS 6 officers at DOS who aspired to promotion, would have had the opportunity to compete for the position that Mr Nugent had vacated. Had it proceeded, the proposed job swap would have foreclosed that opportunity for DOS staff.