Power v Aboriginal Hostels Limited

[2003] FCA 1475

FEDERAL COURT OF AUSTRALIA

Power v Aboriginal Hostels Limited [2003] FCA 1475

Discrimination in employment on the basis of disability – imputed discrimination – comparison with person without disability – inherent requirement – how to be applied with imputed disability

Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 15(2), 15(4)
Federal Court of Australia Act 1976 (Cth) s 24, s 25

Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133
X v Commonwealth of Australia (2000) 200 CLR 177

DARCY POWER v ABORIGINAL HOSTELS LIMITED
S 402 of 2003

SELWAY J
12 DECEMBER
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 402 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DARCY POWER APPELLANT
AND:	ABORIGINAL HOSTELS LIMITED RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	12 DECEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Appeal allowed.

2.Order of the Federal Magistrate of 3 March 2003 set aside.

3.This matter be remitted for further hearing by the same Federal Magistrate in accordance with these reasons.

4.The costs of this appeal to be costs in the cause to be determined by the Federal Magistrate.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 402 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DARCY POWER APPELLANT
AND:	ABORIGINAL HOSTELS LIMITED RESPONDENT

JUDGE:	SELWAY J
DATE:	12 DECEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The appellant was an employee of the respondent. He was employed on probation. Prior to the conclusion of the period of probation his employment was terminated. He commenced proceedings in the Federal Magistrates Court alleging that the termination of his employment was the result of unlawful discrimination by the respondent contrary to s 15 (2) of the Disability Discrimination Act 1992 (Cth) (‘the DDA’). The learned Federal Magistrate dismissed that application on the basis that ‘whatever discrimination the respondent committed against the appellant was excused by the operation of section 15(4) of the DDA’. The appellant appeals to this Court pursuant to s 24(1)(d) Federal Court of Australia Act 1976 (Cth) (‘the FCA’). On 29 August 2003, the Chief Justice of this Court directed that the appeal should be heard by a single Judge: s 25(1A) of the FCA. For the reasons given below I am of the view that the appeal should be allowed for the purpose of setting aside the decision of the learned Federal Magistrate and remitting the matter to him for further consideration in accordance with these reasons.

2. There would seem to have been a number of issues of fact that were in contention before the learned Federal Magistrate which he has resolved.  The relevant facts can now be summarised as follows:

   (a)The appellant suffered from a serious episode of clinical depression in the mid 1990s whilst employed by the Salvation Army.

   (b)The respondent operates a number…