Pignat v Richmond Valley Council - [2005] NSWADT 162

CITATION: Pignat v Richmond Valley Council [2005] NSWADT 162

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Fioravante Raymond Pignat
RESPONDENT
Richomnd Valley Council

FILE NUMBER: 041109

HEARING DATES: 07 & 08/04/2005

SUBMISSIONS CLOSED: 05/06/2005

DATE OF DECISION:
07/14/2005

BEFORE: Hennessy N - Magistrate (Deputy President); Nemeth de Bikal L - Non Judicial Member; O'Sullivan M - Non Judicial Member

APPLICATION: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Industrial Relations Act 1996

CASES CITED: Bogie v The University of Western Sydney (1990) EOC 92-313
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Browne v Dunn (1893) 6 R 67
Hill v Water Resources Commission (1985) EOC 92-127 at 76,290I
W v City of Perth (1997) 191 CLR 1
Mooney v Commissioner of Police New South Wales Police Service (No 2) [2003] NSWADT 107
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Sloey & Anor [1999] NSW SC 47

REPRESENTATION: G Donaghy, solicitor
A Dansie, solicitor

ORDERS: 1.The complaint of disability discrimination is dismissed; 2.The complaint of age discrimination is dismissed; 3.The complaint of victimisation is dismissed.

Introduction

1 Mr Pignat is 62 years old and has been employed in local government for over 30 years. Since November 2002, he has been on sick leave (and more recently on annual leave) as a result of anxiety and depression. On 23 July 2003 Richmond Valley Council (the Council) sent him a letter asking him to “show cause” as to why his employment should not be terminated. He was not terminated, but on 19 January 2004, he lodged a complaint of disability discrimination and a complaint of age discrimination with the Anti-Discrimination Board. In relation to the complaint of age discrimination, Mr Pignat submitted that the Tribunal should consider events prior to the writing of the letter on 23 July 2003. The prior conduct is not itself unlawful because it falls outside the statutory time period covered by the complaint. But according to Mr Pignat, it suggests that at least one of the reasons Council sent the 23 July letter was his age. Mr Pignat also lodged a complaint of victimisation as a result of a letter Council sent to him after he complained to the Board requesting that he attend a medical appointment. These complaints need to be viewed against the background of events commencing in February 2000 when Casino Municipal and Richmond River Shire Councils amalgamated to form the Richmond Valley Council.

Amalgamation and restructure

2 Following the amalgamation, Council developed rules relating to the recruitment and selection of staff to the new organisational structure (the Rules). All non-managerial positions were declared vacant and employees including Mr Pignat were asked to nominate the positions in which they were interested. Mr Pignat’s first preference was for the position of overseer at Evans Head. Following the application of the Rules, Mr Grainger was appointed to that position and Mr Pignat was told that he had not been selected. Mr Grainger…

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: [2005] NSWADT 162
Decision Date: 07/14/2005

CaseChat Overview and Summary

Pignat v Richmond Valley Council was a case before the Federal Court of Australia where the plaintiff, Mr Pignat, brought a complaint of disability discrimination, age discrimination, and victimisation against the defendant, Richmond Valley Council. Mr Pignat alleged that the council had discriminated against him due to his disabilities and age and had victimised him following his complaints of discrimination. The court was tasked with determining whether the council's actions amounted to unlawful discrimination and victimisation under the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

The court considered whether the council's actions towards Mr Pignat amounted to disability discrimination, age discrimination, and victimisation. The court examined the definition of disability under the Disability Discrimination Act 1992 and whether Mr Pignat's conditions met the criteria. The court also considered whether the council had treated Mr Pignat less favourably because of his age and whether the treatment was on the grounds of age. In addition, the court assessed whether Mr Pignat had suffered a detriment as a result of a complaint of discrimination or participation in proceedings related to discrimination.

The court found that the council's actions did not amount to disability discrimination, age discrimination, or victimisation. The court held that Mr Pignat's conditions did not meet the criteria for disability under the Disability Discrimination Act 1992, and there was no evidence of less favourable treatment on the grounds of age. The court also concluded that Mr Pignat had not suffered a detriment as a result of a complaint of discrimination or participation in proceedings related to discrimination. Therefore, the court dismissed all complaints brought by Mr Pignat against the council.

Orders

Orders of the court

1.The complaint of disability discrimination is dismissed; 2.The complaint of age discrimination is dismissed; 3.The complaint of victimisation is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pignat v Richmond Valley Council [2005] NSWADT 162
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Fioravante Raymond Pignat RESPONDENT Richomnd Valley Council
FILE NUMBER:	041109
HEARING DATES:	07 & 08/04/2005
SUBMISSIONS CLOSED:	05/06/2005
DATE OF DECISION:	07/14/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Nemeth de Bikal L - Non Judicial Member; O'Sullivan M - Non Judicial Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Industrial Relations Act 1996
CASES CITED:	Bogie v The University of Western Sydney (1990) EOC 92-313 Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 Browne v Dunn (1893) 6 R 67 Hill v Water Resources Commission (1985) EOC 92-127 at 76,290I W v City of Perth (1997) 191 CLR 1 Mooney v Commissioner of Police New South Wales Police Service (No 2) [2003] NSWADT 107 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Sloey & Anor [1999] NSW SC 47
REPRESENTATION:	G Donaghy, solicitor A Dansie, solicitor
ORDERS:	1.The complaint of disability discrimination is dismissed; 2.The complaint of age discrimination is dismissed; 3.The complaint of victimisation is dismissed.