Penwill v National Jet Systems Pty Limited

FEDERAL COURT OF AUSTRALIA

Penwill v National Jet Systems Pty Limited [2002] FCA 5

INDUSTRIAL LAW - termination of employment - whether termination of applicant's employment was "at the initiative of" the respondent - whether termination for reasons which  included a proscribed reason, namely, applicant's physical or mental disability

Workplace Relations Act 1966(Cth) ss 170CD, 170CK

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 followed
Association of Professional Engineers, Scientists & Managers Australia v David Graphics Pty Limited (Unreported, Industrial Relations Court of Australia, Decision 410/95) followed
Maritime Union of Australia v Geraldton Port Authority (1999) 94 IR 244 cited
Laz v Downer Group Ltd [2000] FCA 1390 referred to
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 referred to

SALLY PENWILL v NATIONAL JET SYSTEMS PTY LIMITED
W 166 OF 2001

CARR J
10  JANUARY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W166 OF 2001

BETWEEN:	SALLY PENWILL Applicant
AND:	NATIONAL JET SYSTEMS PTY LIMITED Respondent
JUDGE:	CARR J
DATE OF ORDER:	10 JANUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W166 OF 2001

BETWEEN:	SALLY PENWILL Applicant
AND:	NATIONAL JET SYSTEMS PTY LIMITED Respondent

JUDGE:	CARR J
DATE:	10 JANUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application under ss 170CP and 170CR of the Workplace Relations Act 1996 (Cth) (“the Act”). The applicant, a former Flight Attendant employed by the respondent, seeks an order requiring the respondent to reinstate her, alternatively compensation, the imposition of a penalty and other compensatory orders.

   FACTUAL BACKGROUND

2. The following recitation of the factual background is based upon factual assertions in the statement of claim which were admitted, facts which were set out in a “statement of assumed facts” agreed upon by the parties and filed on the eve of the hearing, and other factual matters which were not contentious.  Where it becomes necessary for me to decide an issue of disputed fact, I shall identify that fact, give my finding and reasons for that finding.

3. On 4 September 1995 the applicant commenced work with the respondent as a Flight Attendant in its Charter Service Division.  On 1 April 1997 she was transferred to the respondent’s Airline Operations Division which provided services to Qantas’ Airlink service.  The applicant worked on Airlink flights from Perth, mainly to regional Western Australia, the Northern Territory, Queensland and South Australia.  During a period between early 2000 and 16 October 2000 the applicant’s evidence was that she experienced difficulties whilst working on aircraft of the type known as “BAe 146”. 

4. The applicant said that those difficulties resulted from inhalation of fumes.  The difficulties included problems with breathing, sore eyes, hyper-activity, dizziness, nausea, headaches and tightness across the forehead.  She reported 21 such incidents…