Stephens v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Stephens v Australian Postal Corporation [2014] FCA 732

Citation: Stephens v Australian Postal Corporation [2014] FCA 732
Appeal from: Stephens v Australian Postal Corporation [2013] FCCA 1988
Parties: LARRY STEPHENS v AUSTRALIAN POSTAL CORPORATION
File number: NSD 2493 of 2013
Judge: FLICK J
Date of judgment: 10 July 2014
Catchwords: INDUSTRIAL LAW – refusal to employ – no positions vacant at the time – no adverse action – no discrimination on basis of physical disability – reverse onus of proof – onus discharged
Legislation: Fair Work Act2009 (Cth) ss 340, 342, 351, 361
Safety Rehabilitation and Compensation Act 1988 (Cth)
Workplace Relations Act1996 (Cth) s 298K(1)(d)
Cases cited:

Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910, (2003) 126 IR 165
Australian Postal Corporation v Stephens (No 2) [2011] FCA 992, (2011) 207 IR 454
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500
Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768, (2000) 104 FCR 440
Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531, (1999) 140 IR 131
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446, (2013) 232 IR 290
Fraser v Fletcher Construction Australia Ltd (1996) IR 117
Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189, (2000) 101 IR 435

McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828, (2006) 154 IR 111
Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585, (2008) 177 IR 306
Re Stephens and Australian Postal Corporation [2011] AATA 824
Stephens v Australian Postal Corporation [2013] FCCA 1988
Stephens v Australian Postal Corporation [2011] FMCA 448, (2011) 207 IR 405
Date of hearing: 26 May 2014
Date of last submissions: 28 May 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 44
Counsel for the Appellant: Ms J Keys
Counsel for the Respondent: Mr S R Meehan
Solicitor for the Respondent: Ashurst Australia

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2493 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

LARRY STEPHENS
Appellant
AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

10 JULY 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2493 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

LARRY STEPHENS
Appellant
AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

FLICK J

DATE:

10 JULY 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The Applicant (Mr Larry Stephens) was employed by…

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Details
Case
[2014] FCA 732
Decision Date

CaseChat Overview and Summary

The appeal in Stephens v Australian Postal Corporation was heard by the Federal Court of Australia. The appellant, Mr Stephens, sought employment with the Australian Postal Corporation but was not offered a position. He subsequently brought a claim against the corporation for refusal to employ, alleging discrimination based on his physical disability, as well as claiming that the refusal to employ was because he had exercised a workplace right. The Federal Circuit Court dismissed his application, and he appealed to the Federal Court.

The primary legal issues the court had to address were whether the appellant was refused employment and, if so, whether it was due to the prohibited reasons of exercising a workplace right or because of his disability. Another significant issue was the onus of proof in relation to the appellant's claims. The court also considered whether there was any actual bias exhibited by the Federal Circuit Court Judge.

The Federal Court found no error in the reasoning of the Federal Circuit Court. The evidence, particularly that of Mr Ivin, established that there were no vacant positions available at the time Mr Stephens applied. Consequently, there was no refusal to employ him. Furthermore, the court found that there was no evidence to suggest that the refusal was due to the appellant exercising a workplace right or because of his disability. The Federal Circuit Court Judge correctly concluded that the appellant's application should be dismissed. The court also rejected the argument of actual bias against the Federal Circuit Court Judge, finding no basis for such a claim in the statements made during the proceedings.

The Federal Court dismissed the appeal and confirmed the decision of the Federal Circuit Court. The court's order was that the appeal be dismissed, and no further orders were made.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

In the absence of any relevant challenge to Mr Ivin’s evidence, the findings of the Federal Circuit Court Judge at paragraphs [71] to [72] would seem almost inevitable. In addition to those findings, Mr Ivin’s evidence (if accepted) also provides a certain factual foundation for a conclusion that any decision to refuse to offer Mr Stephens employment was not because Mr Stephens had exercised a “workplace right”. Mr Ivin simply had no knowledge of Mr Stephens’ prior experience in the Administrative Appeals Tribunal, the Federal Magistrates Court, or in this Court. So, too, would his evidence, support the conclusions of the Federal Circuit Court Judge at paragraphs [77] to [78] in respect to the claim for disability discrimination.CONCLUSIONS The present appeal, it is respectfully considered, does not require any close analysis of any onus of proof imposed upon Mr Stephens or the operation of s 361 of the Fair Work Act. Wherever the onus of proof may have ultimately rested, the Federal Circuit Court Judge concluded that:·there had been no refusal to employ Mr Stephens because there was no vacant position to which he could have been employed;and further concluded that:·any refusal to employ Mr Stephens was not for a prohibited reason.No appellable error, it is concluded, is exposed in the manner in which those findings were made. However the facts be construed, be it either as a case requiring consideration of what constitutes a “refusal to employ” or as a case requiring consideration of the reasons why Mr Stephens’ application was unsuccessful, the Federal Circuit Court Judge was correct in dismissing the application before that Court. To the extent that the Notice of Appeal asserted “actual bias” on the part of the Federal Circuit Court Judge, and to the extent that the written submissions filed on behalf of the Appellant maintained that Ground of Appeal, the argument is rejected. Such reference as was made to by the Judge to provisions of the Fair Work Act and costs, without more, provide no basis for any such argument. The argument, apparently, was founded upon statements made which it was said exposed “misconceptions and misinterpretation about section 361…”. It follows that the appeal should be dismissed. THE ORDER OF THE COURT IS: The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.