O'HANLON v Williams - [2017] FCCA 381

FEDERAL CIRCUIT COURT OF AUSTRALIA

O'HANLON v WILLIAMS & ORS

[2017] FCCA 381

Catchwords:
PRACTICE AND PROCEDURE – Whether, within the meaning of s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth), the applicant has reasonable prospects of successfully prosecuting claims based on alleged contraventions of s.15(2)(c) and s.15(2)(d) of the Disability Discrimination Act 1992 (Cth) – no reasonable prospects of successfully prosecuting the proceeding – proceeding dismissed.

HUMAN RIGHTS – Disability discrimination – whether Disability Discrimination Act 1992 (Cth) is capable of applying to deeds of release – whether Court has jurisdiction to set aside deed of release in circumstances where it has been entered into as a consequence of unlawful discrimination.

HUMAN RIGHTS – Disability discrimination – indirect discrimination – teacher with claimed psychological disability is investigated in relation to incident – employer represents to teacher it has preliminary view the teacher’s employment should be terminated – employer does not terminate teacher’s employment but at the request of the teacher enters into a deed under which teacher resigns and mutual releases are given – whether in those circumstances the employer dismissed teacher – whether employer required teacher to execute the deed and do other things (Asserted Requirements) – whether the Asserted Requirements, if imposed, constituted the conduct or formed part of the conduct by which the employer dismissed the teacher – if the employer imposed the Asserted Requirements whether a substantially higher proportion of persons without the teacher’s disability comply or are able to comply with those requirements – whether if the Asserted Requirements were imposed it was reasonable to do so having regard to the circumstances of the case – whether if the Asserted Requirements were imposed the teacher in any event complied with the requirements – whether after teacher executed deed by which she resigned her position as teacher the employer required the teacher to comply with the Asserted Requirements – assuming employer required the now former teacher to comply with the Asserted Requirements whether the former teacher nevertheless was an “employee” within the meaning of s.15(2)(d) of the Disability Discrimination Act 1992 (Cth).

Legislation:

Anti-Discrimination Act 1977 (NSW), s.24(3)
Australian Human Rights Commission Act 1986 (Cth), Part IIB, Div.2
Australian Human Rights Commission Act 1986 (Cth), s.46PO(4)
Conciliation and Arbitration Act 1904 (Cth), s.9(1)
Disability Discrimination Act 1992 (Cth), ss.4(1), 5, 6, 15, 15(2), 15(2)(c), 15(2)(d)
Fair Work Act 2009 (Cth), s.342
Federal Circuit Court of Australia Act 1999(Cth), s.17A(2)
Industrial Relations Act 1991 (NSW), s.245

Trade Practices Act 1974 (Cth), s.52(1)

Cases cited:

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Bonella & Ors v Wollongong City Council [2001] NSWADT 194
Byrnes v Kendle [2011] HCA 26
Cook v CFP Management Pty Ltd[2006] QCA 215
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Eliezer v University…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 381
Decision Date: 3 March 2017

CaseChat Overview and Summary

The applicant, a former teacher, brought proceedings in the Federal Circuit Court of Australia against her former employer, alleging contraventions of sections 15(2)(c) and 15(2)(d) of the *Disability Discrimination Act 1992* (Cth). The dispute arose from the circumstances surrounding the applicant's resignation from her teaching position, which was formalised by a deed of release. The applicant contended that the employer's actions leading to this deed constituted unlawful discrimination based on her psychological disability.

The central legal issues before the Court were whether the *Disability Discrimination Act 1992* (Cth) could apply to a deed of release, and if so, whether the Court possessed jurisdiction to set aside such a deed when it was entered into as a consequence of alleged unlawful discrimination. Specifically, the Court had to determine if the employer's conduct, including alleged requirements imposed on the applicant, amounted to a dismissal within the meaning of the Act, and if any such requirements constituted indirect discrimination. This involved assessing whether a substantially higher proportion of persons without the applicant's disability could comply with these requirements, and if such requirements were reasonable. The Court also considered whether the applicant remained an "employee" for the purposes of the Act after executing the deed of resignation.

Judge Manousaridis found that the applicant did not have reasonable prospects of successfully prosecuting her claims. The Court reasoned that the deed of release, which included a mutual release of claims, was a binding agreement. The Court determined that the *Disability Discrimination Act 1992* (Cth) was not capable of applying to the deed of release itself, nor did the Court have jurisdiction to set aside the deed in these circumstances. Consequently, the proceeding was dismissed.

Orders