Ogbonna v CTI Logistics Ltd (No 2) - [2015] FCCA 2318

FEDERAL CIRCUIT COURT OF AUSTRALIA

OGBONNA v CTI LOGISTICS LTD & ORS (No.2)

[2015] FCCA 2318

Catchwords:
HUMAN RIGHTS – Alleged racial discrimination – whether alleged conduct because of applicant’s race.

INDUSTRIAL LAW – Award entitlements – allowances – first aid and travelling.

Legislation:

Evidence Act 1995 (Cth), ss.138(1) and (3)
Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 18
Racial Discrimination Act 1975 (Cth), ss.9, 15, 18A
Surveillance Devices Act 1998 (WA), ss.5(1), 9

Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; (2012) 261 FLR 211; (2012) 86 ACSR 713
Jones v Chief of Navy [2012] FCAFC 125; (2012) 205 FCR 458; (2012) 294 ALR 28
Metz Holdings Pty Ltd & Ors v Simmac Pty Ltd (No. 1) [2011] FCA 263; (2011) 193 FCR 195
Smith v Saracen Management Pty Limited [2002] WAIRComm 5619; (2002) 82 WAIG 1050
Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694

Applicant:

CELESTINE OGBONNA

First Respondent:

CTI LOGISTICS LTD

Second Respondent:

TIM BARTON

Third Respondent:

MARK VANDERLIST

File Number:

PEG 72 of 2013

Judgment of:

Judge Lucev

Hearing dates:

19-20 December 2013 and 6 February 2014

Date of Last Submission:

6 February 2014

Delivered at:

Perth

Delivered on:

28 August 2015

REPRESENTATION

For the Applicant

Counsel for the Respondents:

In person

Mr S P Kemp

Solicitors for the Respondents:

Jackson McDonald

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 72 of 2013

CELESTINE OGBONNA

Applicant

And

CTI LOGISTICS LTD

First Respondent

TIM BARTON

Second Respondent

MARK VANDERLIST

Third Respondent

REASONS FOR JUDGMENT

The application and amended Statement of Claim

By application filed on 19 April 2013 the applicant, Celestine Ogbonna (“Mr Ogbonna”) alleged racial discrimination, relying upon ss.9, 15 and 18A of the Racial Discrimination Act 1975 (Cth) (“RD Act”), by his former employer, the first respondent, CTI Logistics Ltd (“CTI Logistics), the second respondent, Tim Barton (“Mr Barton”), and the third respondent, Mark Vanderlist (“Mr Vanderlist”).
In an Amended Statement of Claim filed on 29 July 2013, in addition to the allegations of discrimination under the RD Act, an allegation was raised that the applicant was not paid allowances to which he was entitled and superannuation.
The Amended Statement of Claim is short and provides as follows:
1.At all material times:
(a)The applicant was an employee of CTI logistics Ltd
(b)The respondents were both employer and managers respectively
2.On 25 June 2012, I was phoned by Mark Vanderlist to bring completed quarantine document to 310 Spearwood Avenue, Bibra Lake, after the handover of this document to Mark Vanderlist, he called me outside his office and informed me that I will be the only person to bring documents down to the abovementioned address and I will be paid $30 per week and not $30 per trip as others were previously paid, when I objected he threatened me and said I would get kicked out if I go against…

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: [2015] FCCA 2318
Decision Date: 28 August 2015

CaseChat Overview and Summary

In *Ogbonna v CTI Logistics Ltd (No 2)*, the applicant, Mr. Ogbonna, alleged that the respondent, CTI Logistics Ltd, had discriminated against him on the basis of his race, contrary to the provisions of the *Racial Discrimination Act 1975* (Cth). The dispute also involved claims concerning alleged underpayment of award entitlements, specifically first aid and travelling allowances. The matter was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether CTI Logistics Ltd had engaged in conduct that was unlawful under the *Racial Discrimination Act 1975* by treating Mr. Ogbonna unfavourably because of his race, and whether Mr. Ogbonna was entitled to certain allowances as stipulated by an applicable industrial award.

Judge Lucev considered the evidence presented by both parties regarding the alleged discriminatory conduct and the entitlement to award allowances. The Court analysed the specific actions and decisions of CTI Logistics Ltd in relation to Mr. Ogbonna's employment and compared them against the requirements of the *Racial Discrimination Act 1975* and the relevant industrial award. The Court's reasoning focused on establishing a causal link between the alleged adverse treatment and Mr. Ogbonna's race, and on interpreting the terms of the award concerning the allowances claimed.

The Court found that Mr. Ogbonna had not established that the conduct of CTI Logistics Ltd was because of his race, and therefore dismissed the claim of racial discrimination. The Court also determined that Mr. Ogbonna was not entitled to the first aid and travelling allowances he had claimed under the award. Consequently, the application was dismissed.

Orders