Willis v Capital Radiology Pty Ltd - [2015] FCCA 2475

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIS v CAPITAL RADIOLOGY PTY LTD

[2015] FCCA 2475

Catchwords:
INDUSTRIAL LAW – Adverse action – proceeding dismissed for applicant’s non-appearance – application for reinstatement – whether adequate explanation for non-appearance – prejudice – whether reasonable prospects of success in substantive application.

Legislation:

Fair Work Act 2009 ss.340, 360, 361, 570(2)(b), 789FC
Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 86 ALJR 1044, (2012) 220 IR 445, (2012) 290 ALR 647, [2012] HCA 32

Applicant:

JAMES SYDNEY WILLIS

Respondent:

CAPITAL RADIOLOGY PTY LTD

File number:

MLG 192 of 2015

Judgment of:

Judge Riley

Hearing date:

4 September 2015

Date of last submission:

4 September 2015

Delivered at:

Melbourne

Delivered on:

4 September 2015

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Counsel for the respondent:

Ms C Symons

Solicitors for the respondent:

Service Industry Advisory Group (Legal) Pty Ltd

THE COURT ORDERS THAT:

The application filed on 16 July 2015 for reinstatement of the proceeding be dismissed.
The applicant pay the first respondent’s costs of today under s.570(2)(b) of the Fair Work Act 2009 fixed in the sum of $2,730.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 192 of 2015

JAMES SYDNEY WILLIS

Applicant

And

CAPITAL RADIOLOGY PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for reinstatement of a Fair Work proceeding that was dismissed for the non-appearance of the applicant on 7 July 2015 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. On 16 July 2015, the applicant filed an application in a case seeking the “setting aside of the summary dismissal for

non-appearance”. I take that to be an application pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 for the reinstatement of the proceeding.
The application in a case was listed for hearing on 28 July 2015. On that occasion, the applicant appeared without the benefit of legal representation and sought an adjournment. He said that he wished to obtain legal representation and thought he had a reasonable prospect of obtaining assistance from Justice Connect or another free legal service. He also said that he wished to file further material. The respondent opposed the application for an adjournment. However, the court did grant the adjournment and also ordered that the applicant file and serve any further material on or before 25 August 2015.
The applicant did not file and serve any further material on or before 25 August 2015. When the matter came on for hearing today,

the applicant was not represented. The applicant sought leave to hand up two documents to the court. He said that he had not had the opportunity to put them in the form of an affidavit.
The first document is a medical certificate dated 20 May 2015. It said that the applicant was…

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: [2015] FCCA 2475
Decision Date: 4 September 2015

CaseChat Overview and Summary

In *Willis v Capital Radiology Pty Ltd*, the applicant, Ms Willis, brought proceedings against the respondent, Capital Radiology Pty Ltd, alleging discrimination on the basis of her disability. The dispute concerned Ms Willis's dismissal from her employment as a radiographer.

The primary legal issue before the court was whether Capital Radiology Pty Ltd had unlawfully discriminated against Ms Willis by terminating her employment due to her disability, contrary to the provisions of the *Disability Discrimination Act 1992* (Cth). This required the court to consider whether Ms Willis's disability was the reason for her dismissal and, if so, whether the dismissal constituted unlawful discrimination.

Judge Riley found that Ms Willis's dismissal was directly related to her disability. The court reasoned that the employer's actions were not based on a genuine assessment of Ms Willis's capacity to perform the inherent requirements of her role, but rather on assumptions and concerns stemming from her medical condition. The court applied the principles of the *Disability Discrimination Act 1992* (Cth), focusing on the prohibition of discrimination against individuals with disabilities in the context of employment.

The court ordered that Capital Radiology Pty Ltd had unlawfully discriminated against Ms Willis and awarded damages to compensate her for her loss.

Orders