McCormack v Commonwealth

In the case of McCormack v Commonwealth, the applicant, Mr. McCormack, sought to challenge the Commonwealth's decision not to grant him a permanent position, which he had hoped to attain through a job swap arrangement with another employee, Mr. Nugent. The proceedings were heard in the Federal Court of Australia, where Mr. McCormack argued that his disability had been a factor in the decision not to make his position permanent, contrary to the provisions of the Disability Discrimination Act 1992 (Cth).

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.