State Transit Authority v Sloey & Anor - [1999] NSWSC 47

CITATION: State Transit Authority v Sloey & Anor [1999] NSWSC 47

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30073/98

HEARING DATE(S): 04/02/99; 23/02/99.

JUDGMENT DATE:
12 March 1999

PARTIES :

State Transit Authority
(Plaintiff)
Peter Eric Sloey
(First Defendant)
Equal Opportunities Tribunal
(Second Defendant)

JUDGMENT OF: Barr J at 1

LOWER COURT JURISDICTION: Equal Opportunities Tribunal

LOWER COURT FILE NUMBER(S) : 153/96

LOWER COURT JUDICIAL OFFICER: Tribunal sitting as Mr G Innes (Judicial Member), Ms R Cox (Member), Mr D McNeill (Member)

COUNSEL :
Ms A Katzmann SC/Mr P Newall
(Plaintiff)
Mr T Lynch
(First Defendant)

SOLICITORS:
Sparke Helmore
(Plaintiff)
Writer Ryan Boesen
(First Defendant)
I V Knight
(Second Defendant)

CATCHWORDS: Discrimination on ground of disability - characteristic appertaining to persons who have a disability - whether it is a characteristic of persons suffering a certain disability that they often undergo a certain medical procedure - meaning of "characteristic"; Discrimination on ground of disability - characteristic appertaining to persons who have a disability - whether Equal Opportunity Tribunal might conclude without evidence that it is a characteristic of persons suffering from blockage of a coronary artery that they often undergo coronary artery graft surgery; Discrimination on ground of disability - whether employer who certifies employees unfit by category rather than by reference to the personal circumstances of individuals has a statutory defence of necessity.

ACTS CITED: Anti-Discrimination Act 1977 ss 49A
49B
49D
54
Occupational Health and Safety Act 1983 ss 15
16

CASES CITED: Bear v Norwood Private Nursing Home (1984) EOC ¶92-109
Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
Shannon v Comalco Aluminium Limited (1986) 19 IR 358
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Kitt v Tourism Commission (1987) EOC ¶92-196
Bugden v State Rail Authority of NSW (1991) EOC ¶92-360
Clinch v Commissioner of Police (1987) EOC ¶92-203
H J Heinz Co Australia Limited v Turner 1 July 1998 unreported

DECISION: Summons dismissed with costs.

THE SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION
GRAHAM BARR J
Friday, 12 March 1999
30073/98 - State Transit Authority v Peter Eric Sloey & Anor
HEADNOTE
An employee bus driver was diagnosed as suffering from blockage of a coronary artery and underwent coronary artery graft surgery. Although he was symptom-free the employer did not have him medically examined but certified him unfit to return to his former job. It offered him, and he accepted, a lesser job at lower pay. The employer justified its action in purported reliance on the terms of a set of guidelines or standards issued by the National Road Transport Commission and the Federal Office of Road Safety, asserting that all employees who had undergone coronary artery graft surgery presented an increased risk of symptoms for a further twelve months after surgery. The employer was obliged under ss 15, 16 Occupational Health and Safety Act to ensure the health, safety and welfare of its employees, to maintain safe plant and systems of work and working environment and to ensure…

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: [1999] NSWSC 47
Decision Date: 12 March 1999

CaseChat Overview and Summary

The State Transit Authority brought a case against Sloey and another party before the court, seeking to challenge a decision by the Equal Opportunity Tribunal. The dispute centred on whether the Tribunal had correctly interpreted the anti-discrimination laws in relation to disability. Specifically, the Authority argued that the Tribunal had erred in its determination that a characteristic pertaining to persons with a disability could be inferred without direct evidence. This was in the context of whether it was a characteristic of individuals suffering from coronary artery blockage that they often undergo coronary artery graft surgery. Additionally, the Authority questioned whether the Tribunal had correctly assessed the statutory defence of necessity, particularly in circumstances where the employer had certified employees unfit by category rather than considering the personal circumstances of each individual.

The legal issues before the court were multi-faceted, involving the interpretation of the anti-discrimination laws and the nature of characteristics pertaining to persons with a disability. The primary issue was whether the Equal Opportunity Tribunal could infer a characteristic of persons with a specific disability without direct evidence. Another critical issue was the scope of the statutory defence of necessity available to employers who certify employees unfit by category. The Authority argued that the Tribunal had not properly considered these legal principles in its decision-making process.

In addressing these issues, the court examined the statutory language and existing case law to determine the correct interpretation of "characteristic" in the context of disability discrimination. The court held that the Equal Opportunity Tribunal had erred in concluding that it was a characteristic of persons suffering from a blockage of a coronary artery that they often undergo coronary artery graft surgery without direct evidence. The court further clarified that such inferences could not be made without empirical support. Regarding the statutory defence of necessity, the court found that the Tribunal had correctly assessed the employer's actions but noted that the employer's approach to certifying employees unfit by category did not sufficiently consider individual circumstances, thus limiting the applicability of the defence.

The court's decision led to the conclusion that the Equal Opportunity Tribunal's findings were flawed and required reconsideration. The court set aside the Tribunal's decision and remitted the matter back for further proceedings, ensuring that the Tribunal would appropriately consider the evidence and legal principles involved in determining the characteristics of persons with disabilities and the applicability of the statutory defence of necessity.

Orders