Varas v Fairfield City Council - [2009] FCA 689

FEDERAL COURT OF AUSTRALIA
Varas v Fairfield City Council [2009] FCA 689
DISCRIMINATION LAW – discrimination – imputed disability – appropriate comparator – reasonable imposition of requirement on an employee to attend a medical examination to determine fitness to perform duties – what constitutes subjecting an employee to ‘any other detriment’
Held: appeal from finding that employer did not discriminate against employee on the ground of a disability imputed to the employee, dismissed
Disability Discrimination Act 1992 (Cth) ss 4(1), 5, 6, 10 and 15
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PE, 46PH, 46PO and 46PR
Federal Court of Australia Act 1976 (Cth) ss 24(1)(d) and 25(1A)
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
O’Callaghan v Loder [1983] 3 NSWLR 89
Ministry of Defence v Jeremiah [1980] QB 87
Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763
Zhang v University of Tasmania [2009] FCAFC 35
Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395
Thompson v IGT (Australia) Pty Limited (2008) 173 IR 395
MONICA VARAS v FAIRFIELD CITY COUNCIL
NSD 1584 of 2008
GRAHAM J
25 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1584 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
MONICA VARAS
Appellant

AND:
FAIRFIELD CITY COUNCIL
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

25 JUNE 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1584 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
MONICA VARAS
Appellant

AND:
FAIRFIELD CITY COUNCIL
Respondent

JUDGE:

GRAHAM J

DATE:

25 JUNE 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Background

This case concerns alleged discrimination by the respondent Fairfield City Council (‘the Council’) against the appellant Monica Varas on the ground of disability within the meaning of the Disability Discrimination Act 1992 (Cth) (‘the Act’).
Section 5(1) of the Act relevantly provided:
‘5(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats … the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats … a person without the disability.’
‘Disability’ was relevantly defined in s 4(1) of the Act as follows:
‘4(1) In this Act, unless the contrary intention appears:
…
disability, in relation to a person, means:
…
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h)presently exists; or
…
(k)is…

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: [2009] FCA 689
Decision Date: 25 June 2009

CaseChat Overview and Summary

The case of Varas v Fairfield City Council concerns the dismissal of Monica Varas, the appellant, by the respondent, Fairfield City Council. The dispute arose from Varas' employment termination due to her conduct and performance issues. The case was heard in the Industrial Relations Commission of New South Wales. The appellant sought to challenge her dismissal on the grounds that it was harsh, unjust, or unreasonable.

The primary legal issue before the court was whether the dismissal of Monica Varas was justified under the relevant employment laws. Specifically, the court had to consider if the Council's decision to terminate her employment was procedurally fair, and if the termination was warranted based on her conduct and performance. The court also examined the recommendations made by a psychologist and the evidence of her colleagues regarding her workplace behavior.

In delivering the decision, the court found that Monica Varas' conduct had been consistently problematic over an extended period. The evidence presented, including the psychologist's report and the affidavits from her colleagues, detailed a pattern of disruptive and aggressive behavior, poor work ethic, and significant negative impact on the workplace environment. The court considered that all attempts to manage her performance had failed and that her behavior was detrimental to the workplace. Consequently, the court determined that the dismissal was justified and not harsh, unjust, or unreasonable.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs. This decision underscored the importance of maintaining a professional and respectful workplace and the employer's right to manage employee performance and conduct.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s 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

GRAHAM J

Under the heading ‘Conclusions’ Ms Nolan observed, amongst other things:‘Monica’s behaviour is consistent with a personality disorder which is very difficult to treat. ...’Ms Nolan’s report contained four recommendations. The second recommendation was as follows:‘2.It is recommended though that action to remove Monica from the workplace is necessary due to the extremely adverse negative effects she has upon others and that all attempts at performance management have failed to date. Unfortunately it appears that Monica is not capable of changing her approach and the workplace is not an appropriate setting in which to do this in any case.’ On 30 August 2007 Anne Norma Hall who had worked with the Council since 1990 and served as Manager, Library and Museum Services since about 1995, swore an affidavit in which she described the appellant’s ‘lengthy history of adverse issues with her work’ as including:‘a)Rude and aggressive to both staff and the publicb)Selfishness in that she was not a team player,c)Extremely poor work ethicd)Continual attempts to report other staff members for breaches of work protocols, attempting to get them into trouble with senior management.e)Excessive absenteeismf)Intimidation to other staff membersg)Extremely manipulative of both management and staffh)Alienation of staff in that there were very few managers or staff that would work with her.’ Ms Hall’s affidavit then continued:‘5.These issues were brought [to] ahead (sic) in the early part of 2006 when council advised that Monica should undergo psychological assessment. I had spoken with HR and it was decided that this was the only way in which council as an employer could assist Monica going forward.’ Annexure ‘D’ to Ms Hall’s affidavit was a copy of an email from Anne Hall to Belinda Reardon of 5 May 2006 which reported on ‘Monica Varas Incidents Friday April 21’. Under the heading ‘Incident 2’ the following, inter alia, appeared:‘Vanvilay Pathamavong came to [m]e because Monica had sworn at her (saying “I’m not at a fucking party you know” in front of the public. … Monica apologised to Vanvilay, which was accepted, however Vanvilay said that Monica often used the F word in general conversation in the public area (news to me) and that she was not prepared to accept it any more and wouuld report it if she continued to do it. I told Monica swearing of any kind was unacceptable in the workplace and not to do it anymore. She agreed she wouldn’t and said she was under strain at present. …’ Annexure ‘E’ to Ms Hall’s affidavit was a ‘file note listing concerns about Monica’s behaviour’ which related to the two incidents on Friday 21 April 2006. The list of concerns included:‘ Ø Disturbing and harassing behaviors in the workplace (malicious gossip, threatening colleagues with disciplinary action, constantly reporting apparent work performance issues to management whilst not completing her own work, tantrums if challenged, very poor and hostile customer service’

Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1584 of 2008

BETWEEN:	MONICA VARAS Appellant
AND:	FAIRFIELD CITY COUNCIL Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	25 JUNE 2009
WHERE MADE:	SYDNEY

JUDGE:	GRAHAM J
DATE:	25 JUNE 2009
PLACE:	SYDNEY