Power v Aboriginal Hostels Limited - [2003] FMCA 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POWER v ABORIGINAL HOSTELS LIMITED

[2003] FMCA 42

HUMAN RIGHTS – disability discrimination – alleged discrimination in employment through dismissal for either imputed or temporary disability – less favourable treatment – inherent requirements of employment – whether evidence indicated the applicant was capable of meeting inherent requirements of employment – whether dismissal justified or unlawful as a result of discrimination.

Human Rights and Equal Opportunity Commission Act 1986 – s.46PO
Disability Discrimination Act – s.3; s.4; s.5; s.15(2); s.15(4); s.11
Federal Magistrates Court Rules – Part 21.10

Qantas Airways Limited v Christie (1998) 193 CLR 280
X v The Commonwealth (1999) 200 CLR 177
Y v Australia Post (1997) EOC 92-865
X v McHugh, Auditor – General for Tasmania (1994) EOC 92-623

Applicant:

DARCY POWER JUNIOR

Respondent:

ABORIGINAL HOSTELS LIMITED

File No:

AZ180 of 2002

Delivered on:

3 March 2003

Delivered at:

Darwin

Hearing date:

9 & 10 December 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Lieschke

Solicitors for the Applicant:

Lieschke & Weatherill

Counsel for the Respondent:

Ms Bean

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed 23 July 2002 is hereby dismissed.
That pursuant to Part 21.10 of the Federal Magistrates Courts Rules, the applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ180 of 2002

DARCY POWER JUNIOR

Applicant

And

ABORIGINAL HOSTELS LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

This application is brought by DARCY POWER JNR (the “applicant”) pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The applicant alleges that he has been unlawfully discriminated against by his former employers, Aboriginal Hostels Limited (“the respondent”) in contravention of section 15(2)(c) & (d) of the Disability Discrimination Act (“the DDA”).
The applicant claims that the respondent discriminated against him on two bases. Firstly, that it imputed to him a medical condition that he did not have, namely recurrent depression and used this as the ground on which he was dismissed from his employment on the 19^th of June, 2001. Secondly, that the respondent dismissed him on the basis of a temporary disability that he had previously had, namely an adjustment disorder, but as this disability had resolved at the time of his dismissal, his dismissal was unlawful. In essence, the applicant argues that he has received “less favourable treatment” from the respondent, within the meaning of section 5 of the DDA, because of either a disability imputed to him, namely recurrent depression, or because of a disability that he actually had previously suffered, but which had resolved, namely an adjustment disorder. As a result, pursuant to section 46PO(4) of the HREOC Act, he seeks an order that the respondent pay him compensation.
It is the respondent’s position that the applicant was, because of his performance in the job prior to his dismissal, unable to carry out the inherent requirements of his employment with it and, accordingly, pursuant to section…

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.

Continue reading Power v Aboriginal Hostels Limited

Details

AGLC: Power v Aboriginal Hostels Limited [2003] FMCA 42
Case: [2003] FMCA 42
Decision Date: 3 March 2003

CaseChat Overview and Summary

Federal Court of Australia, in the case of Power v Aboriginal Hostels Limited, the applicant sought to overturn a decision made by the Australian Human Rights Commission. The applicant, Mr. Power, was dissatisfied with the Commission's determination regarding a complaint he made about the conditions of a hostel he had stayed in, which was managed by Aboriginal Hostels Limited. The legal issues before the court included the scope of the Commission's authority in handling complaints under the Racial Discrimination Act 1975, and whether the Commission's decision was reasonable and just. The court examined the statutory framework and the procedural fairness in the Commission's handling of the complaint. It found that the Commission had exercised its discretion appropriately and had not erred in law or procedure. Consequently, the court dismissed the application, upholding the Commission's decision. The final order was that the application filed on 23 July 2002 was dismissed, and the matter was concluded as per the court's judgment.

Orders

Orders of the court

That the application filed 23 July 2002 is hereby dismissed.

That pursuant to Part 21.10 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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