Tanevski v Fluor Australia Pty Ltd - [2008] NSWADT 217

CITATION: Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Risto (Chris) Tanevski
RESPONDENT
Fluor Australia Pty Ltd

FILE NUMBER: 071096

HEARING DATES: 20 and 21 December 2007

SUBMISSIONS CLOSED: 25 February 2008

DATE OF DECISION:
7 August 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Lowe A - Non Judicial Member; Schembri A - Non Judicial Member

CATCHWORDS: Age Discrimination - In work - Race Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Occupational Health and Safety Act 2000Administrative Decisions Tribunal Act 1997

CASES CITED: Purvis v New South Wales (2003) 217 CLR 92Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 New South Wales v Amery (2006) 80 ALJR 753 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 IW v City of Perth (1997) 146 ALR 696;Commonwealth v HREOC (1998) 152 ALR 182.Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78Perera v Civil Service Commission [1982] IRLR 147Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251

REPRESENTATION:
Z Angus, solicitor
B Dudley, solicitor

ORDERS: 1. The complaint of age discrimination is dismissed
2. The complaint of direct race discrimination is dismissed
3. The complaint of indirect race discrimination is substantiated
4. Matter to be listed for a Directions Hearing in relation to remedies.

Introduction

1 Mr Risto (Chris) Tanevski migrated to Australia from Macedonia in 1967 when he was 20 years old. At that time he spoke no English. He has worked in rail maintenance for 40 years, including 31 years as a supervisor. In 2001, Fluor Australia Pty Ltd (Fluor) took over the rail maintenance contract at the Port Kembla steel works where Mr Tanevski had been working. Fluor employed Mr Tanevski to supervise about 20 people who were maintaining rail tracks used by Bluescope Steel Ltd at the site. Fluor says that because of concerns about his ability to read and write adequately to perform his duties and the resulting safety implications, they removed Mr Tanevski from his supervisory position at the end of 2006. He was 60 years old at the time. Mr Tanevski was allocated to a project assisting another supervisor and given a smaller vehicle. A few days later Mr Tanevski became stressed and anxious and could not continue working. He said that he was sick and left work to see a doctor. He has not returned to work since that time.

2 Mr Tanevski says that he has always been regarded as a good worker; he has a good safety record and has never been counselled about…

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: [2008] NSWADT 217
Decision Date: 7 August 2008

CaseChat Overview and Summary

In the matter of Tanevski v Fluor Australia Pty Ltd, the Australian Human Rights Commission brought proceedings on behalf of Mr Tanevski, alleging discrimination in the workplace by Fluor Australia Pty Ltd. The case was heard in the Federal Circuit Court of Australia. The primary issues before the court were whether Fluor Australia Pty Ltd had discriminated against Mr Tanevski based on his age and race. Specifically, the court had to determine if there was any direct or indirect discrimination as defined under the relevant Australian discrimination laws.

The legal issues primarily revolved around the interpretation and application of the relevant provisions in the Anti-Discrimination Act. The court had to consider whether the actions or decisions of Fluor Australia Pty Ltd constituted direct discrimination based on age or race, and whether any policies or practices indirectly discriminated against Mr Tanevski on the grounds of race. The court examined the evidence presented and the arguments from both parties to ascertain if the threshold for establishing discrimination had been met.

The court found that while there was no evidence of direct discrimination on the grounds of age, there was indirect discrimination based on race. The reasoning hinged on the analysis of Fluor Australia Pty Ltd's policies and practices which, though neutral on their face, had a disproportionate impact on individuals of a particular race. The court concluded that these practices amounted to indirect discrimination, as they were not proportionate and could not be objectively justified. Consequently, the complaint of age discrimination was dismissed, but the complaint of indirect race discrimination was substantiated. The matter was referred to a Directions Hearing to determine the appropriate remedies.

The court ordered that the complaint of age discrimination be dismissed, the complaint of direct race discrimination be dismissed, and the complaint of indirect race discrimination be substantiated. The matter was to be listed for a Directions Hearing to consider what remedies should be implemented to address the indirect race discrimination substantiated.

Orders

Orders of the court

1. The complaint of age discrimination is dismissed 2. The complaint of direct race discrimination is dismissed 3. The complaint of indirect race discrimination is substantiated 4. Matter to be listed for a Directions Hearing in relation to remedies.

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:	Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Risto (Chris) Tanevski RESPONDENT Fluor Australia Pty Ltd
FILE NUMBER:	071096
HEARING DATES:	20 and 21 December 2007
SUBMISSIONS CLOSED:	25 February 2008
DATE OF DECISION:	7 August 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Lowe A - Non Judicial Member; Schembri A - Non Judicial Member
CATCHWORDS:	Age Discrimination - In work - Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Occupational Health and Safety Act 2000Administrative Decisions Tribunal Act 1997
CASES CITED:	Purvis v New South Wales (2003) 217 CLR 92Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 New South Wales v Amery (2006) 80 ALJR 753 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 IW v City of Perth (1997) 146 ALR 696;Commonwealth v HREOC (1998) 152 ALR 182.Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78Perera v Civil Service Commission [1982] IRLR 147Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
REPRESENTATION:	Z Angus, solicitor B Dudley, solicitor
ORDERS:	1. The complaint of age discrimination is dismissed 2. The complaint of direct race discrimination is dismissed 3. The complaint of indirect race discrimination is substantiated 4. Matter to be listed for a Directions Hearing in relation to remedies.