Tarr v Torrens Transit Services (North) Pty Ltd - [2008] SAEOT 12

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
TARR v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 12
Judgment of Her Honour Judge Cole, Member Mr D Shetliffe and Member Ms H Jasinski
4 September 2008
DISCRIMINATION LAW
Allegation of discrimination against an application for a position of bus operator on the basis of a pre-employment functional assessment - whether respondent acted in contravention of the Equal Opportunity Act 1984 - the rejection of the application was found to be in contravention of s67(1)(a) of the Act - appeal allowed - compensation awarded.
Equal Opportunity Act 1984, referred to.
Smith v St John Ambulance Australia - South Australia Incorporated (1992) 166 LSJS 231; Forest v Queensland Health [2007] FCA 1236; Gama v Qantas Airways No 2 [2006] FMCA 1767, considered.

TARR v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 12
Introduction

Mr Tarr complained to the Commissioner of Equal Opportunity (“the Commissioner”) that Torrens Transit (North) Pty Ltd (“Torrens Transit”) had discriminated against him contrary to the Equal Opportunity Act 1984 (“the Act”). The Commissioner attempted to conciliate the complaint, but was unsuccessful, and therefore referred the complaint to this Tribunal pursuant to s 95(8) of the Act for hearing and determination.
At the hearing before us, Mr Tarr and Dr Meegan, an occupational physician, gave evidence in the complainant’s case, and Ms Schirmer, the Director of Clinical Services of the Corporate Health Group, Ms Holland, a physiotherapist at the Corporate Health Group and Mr Lamont, the General Manager of Torrens Transit, gave evidence in the respondent’s case.
The Facts
In May 2004, Mr Tarr gained casual employment with Serco as a bus driver. Prior to that, he had driven heavy trucks from 1999 to 2003, and, prior to that, he had driven the City of Prospect’s community bus from 1983 to 1999.
In February 2005, Torrens Transit successfully tendered to provide the public bus service on a number of bus routes serviced by Serco. It was Mr Lamont’s evidence that Torrens Transit had about eight weeks from being awarded the contract to assuming the conduct of the bus service. During that time, a process was put in place to facilitate the application by Serco bus drivers for positions with Torrens Transit. The process involved the making of a written application for employment to Torrens Transit by the bus driver. The employment application form produced by Torrens Transit required the disclosure of prior workers compensation claims and medical conditions, among other things. Torrens Transit processed the employment applications. It was Mr Lamont’s evidence that Torrens Transit consulted with WorkCover and its insurer, CGU, with respect to this process. Mr Lamont said that WorkCover produced a list of injuries for Torrens Transit. They were back, neck, shoulder, upper arm, lower leg and knee injuries. If an employment application disclosed that the applicant had previously suffered one or more of the injuries on the list, that applicant was then referred to the Corporate Health Group for the…

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] SAEOT 12
Decision Date: 4 September 2008

CaseChat Overview and Summary

In Tarr v Torrens Transit Services (North) Pty Ltd, Mr Tarr alleged that Torrens Transit had discriminated against him on the basis of an actual physical impairment by denying him access to employment as a bus driver. The Equal Opportunity Tribunal found that Torrens Transit had discriminated against Mr Tarr in determining that he should not be offered employment on the basis of his poor back fitness, which fell within the definition of "physical impairment" pursuant to s 5 of the Equal Opportunity Act 1984. The Tribunal rejected Torrens Transit's reliance on s 71(2) of the Act, which exempts discrimination on the ground of impairment in relation to employment if the person suffering from the impairment is not, or would not be, able to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question. The Tribunal found that it was not reasonable for the score on the back fitness test to be used alone to disqualify Mr Tarr from consideration for a position as a bus driver. The Tribunal ordered Torrens Transit to pay compensation to Mr Tarr for actual pecuniary loss in the sum of $1,834, and for non-pecuniary loss, including injury to feelings, in the sum of $2,000, being a total of $3,834. The Tribunal did not order an apology as it was of the view that an apology made only to comply with an order of the Tribunal would be of no real value.

Orders