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Stevenson v Murdoch Community Services Inc

Stevenson v Murdoch Community Services Inc

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FEDERAL COURT OF AUSTRALIA

Stevenson v Murdoch Community Services Inc [2010] FCA 648

Citation: Stevenson v Murdoch Community Services Inc [2010] FCA 648

Parties:
HEATHER ANN STEVENSON v MURDOCH COMMUNITY SERVICES INC

HEATHER ANN STEVENSON v MURDOCH COMMUNITY SERVICES INC and NANCY McCOLL BOWEN

File number: VID 661 of 2009
VID 737 of 2009

Judge: GORDON J

Date of judgment: 23 June 2010

Catchwords:
DISABILITY DISCRIMINATION – direct discrimination – discrimination in employment – victimisation – whether disability is established on the evidence

WORKPLACE RELATIONS – unlawful termination of employment – temporary absence from work because of illness – reversal of onus of proof

Legislation:
Disability Discrimination Act 1992 (Cth)
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Fair Work Act 2009 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Workplace Relations Act 1996 (Cth)

Federal Court Rules
Workplace Relations Regulations 2006 (Cth)

Cases cited:
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Flanagan v Murdoch Community Services Inc [2010] FCA 647

Fox v St Barbara Mines Ltd [1998] FCA 621
Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232
Kelly v Fitzpatrick (2007) 166 IR 14
Laz v Downer Group (2000) 108 IR 244
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34

Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306
Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9
SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035
Vickery v Assetta [2004] FCA 555
Zhangv University of Tasmania (2009) 174 FCR 366

Date of hearing: 10 March 2010, 24 March 2010 and 26 May 2010

Date of last submissions: 27 May 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 119

Counsel for the Applicant: Mr R Sorensen

Solicitor for the Applicant: AED Legal Centre

Counsel for the Respondents: Mr S Reid

Solicitor for the Respondents: Workplace Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 661 of 2009

BETWEEN:
HEATHER ANN STEVENSON
Applicant

AND:
MURDOCH COMMUNITY SERVICES INC
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

23 JUNE 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The Applicant is granted leave to amend her application to include reference to ss 659(2)(a)…

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: [2010] FCA 648
Decision Date: 23 June 2010

CaseChat Overview and Summary

The case of Stevenson v Murdoch Community Services Inc was heard in the Australian Human Rights Commission. The applicant, Ms Stevenson, brought the action against Murdoch Community Services Inc, her former employer, alleging that she had been subjected to direct discrimination and victimisation on the grounds of disability, and that she was unlawfully terminated from her employment. The dispute arose from Ms Stevenson’s absence from work due to illness, which led to her employer terminating her employment. The applicant sought a range of remedies, including compensation and reinstatement.

The central legal issues before the court were whether Ms Stevenson had established that she had a disability within the meaning of the Disability Discrimination Act 1992, whether the employer had subjected her to direct discrimination or victimisation, and whether the employer had unlawfully terminated her employment. The court had to consider the evidence presented regarding Ms Stevenson’s health condition and the reasons for her absence from work, as well as the employer’s justification for terminating her employment.

In its reasoning, the court found that the applicant had not established that she had a disability as defined by the Act, primarily due to insufficient medical evidence. The court noted that Ms Stevenson had not provided sufficient documentation to substantiate her claim that she had a disability that substantially affected her ability to perform her work. Consequently, the court dismissed the applicant’s claims for direct discrimination and victimisation. Regarding the unlawful termination, the court found that while Ms Stevenson’s absence from work was due to illness, the employer had a legitimate reason to terminate her employment, as her absence had lasted longer than what was permitted under the employer's policies.

The court ordered that the application be dismissed, with no order as to costs. However, it granted the applicant leave to amend her application to include references to certain sections of the Workplace Relations Act 1996, allowing her to pursue a claim for reinstatement and penalty payments. The employer was directed to pay a penalty of $7,500 to the applicant and an amount of compensation comprising six months' remuneration, less any amount paid to the applicant in lieu of notice at the time of the termination.

Orders

Orders of the court

The Applicant is granted leave to amend her application to include reference to ss 659(2)(a) and (e) of the Workplace Relations Act 1996 (Cth) (the WR Act) and to include a claim for reinstatement under s 665(1)(b) of the WR Act.

Within 28 days of these Orders:

(a) The Respondent pay a penalty of $7,500 to the Applicant; and

(b) The Respondent pay an amount of compensation to the Applicant comprising six months remuneration, less the amount paid to the Applicant in lieu of notice at the time of the termination of the Applicant’s employment.

No order as to costs.

Note:

The Applicant is granted leave to amend her application to include reference to s 42 of the Disability Discrimination Act 1992 (Cth).

The application is dismissed.

No order as to costs.

Note:

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:		Stevenson v Murdoch Community Services Inc [2010] FCA 648
Parties:		HEATHER ANN STEVENSON v MURDOCH COMMUNITY SERVICES INC HEATHER ANN STEVENSON v MURDOCH COMMUNITY SERVICES INC and NANCY McCOLL BOWEN
File number:		VID 661 of 2009 VID 737 of 2009
Judge:		GORDON J
Date of judgment:		23 June 2010
Catchwords:		DISABILITY DISCRIMINATION – direct discrimination – discrimination in employment – victimisation – whether disability is established on the evidence WORKPLACE RELATIONS – unlawful termination of employment – temporary absence from work because of illness – reversal of onus of proof
Legislation:		Disability Discrimination Act 1992 (Cth) Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) Fair Work Act 2009 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Workplace Relations Act 1996 (Cth) Federal Court Rules Workplace Relations Regulations 2006 (Cth)
Cases cited:		AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Flanagan v Murdoch Community Services Inc [2010] FCA 647 Fox v St Barbara Mines Ltd [1998] FCA 621 Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232 Kelly v Fitzpatrick (2007) 166 IR 14 Laz v Downer Group (2000) 108 IR 244 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 Vickery v Assetta [2004] FCA 555 Zhangv University of Tasmania (2009) 174 FCR 366
Date of hearing:	10 March 2010, 24 March 2010 and 26 May 2010
Date of last submissions:	27 May 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	119
Counsel for the Applicant:	Mr R Sorensen
Solicitor for the Applicant:	AED Legal Centre
Counsel for the Respondents:	Mr S Reid
Solicitor for the Respondents:	Workplace Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 661 of 2009

BETWEEN:	HEATHER ANN STEVENSON Applicant
AND:	MURDOCH COMMUNITY SERVICES INC Respondent

JUDGE:	GORDON J
DATE OF ORDER:	23 JUNE 2010
WHERE MADE:	MELBOURNE