Y v Human Rights & Equal Opportunity Commission - [2004] FCA 184

FEDERAL COURT OF AUSTRALIA
“Y” v Human Rights & Equal Opportunity Commission [2004] FCA 184
DISCRIMINATION – disability – refused to employ on basis of behaviour caused by disability – meaning of discrimination – whether discrimination in the “arrangements” made for employment
WORDS & PHRASES – discrimination
Anti-Discrimination Act 1977 (NSW) s 42B
Disability Discrimination Act 1992 (Cth) ss 5, 15
Holdaway v Qantas Airways Limited [1992] EOC 92-395 cited
New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 cited
Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237 cited
Purvis (on behalf of Hoggan) v New South Wales(Department of Education and Training) (2003) 202 ALR 133 applied
X v McHugh, Auditor-General for the State of Tasmania [1994] EOC 92-623 cited
“Y” v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and AUSTRALIA POST
VG 21 of 1998
FINKELSTEIN J
4 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 21 of 1998

BETWEEN:

“Y”
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and
AUSTRALIA POST
Respondents

JUDGE:

FINKELSTEIN J

DATE:

4 MARCH 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, or Y as he has been referred to throughout this proceeding, suffers from a “disability” for the purposes of the Disability Discrimination Act 1992 (Cth). Y’s disability has been described variously as an obsessive compulsive disorder, a personality disorder with behavioural implications, a paranoid psychosis and residual schizophrenia with an avoidant personality disorder. Since 1987 Y sought employment with the second respondent, Australia Post, as a mail officer or postal delivery officer. For a number of years the recruiting process at Australia Post involved a system known as the “order of merit”. Under this system applicants for employment were graded according to their performance in examinations and as positions became vacant those qualifying highest were offered the available position. At first Y did not obtain employment with Australia Post because he did not qualify sufficiently highly in the order of merit to be offered a position. In March 1988, however, Y made a menacing telephone call to a female Australia Post employee. As a result, his file with Australia Post was marked “Not to be employed under any circumstance”. Some years later Y applied to the Administrative Appeals Tribunal to have the notation deleted. That application was resolved when Australia Post agreed to amend the notation to read “Not presently employable”. During the course of the AAT application Y discovered that Australia Post had obtained a report from Dr N Parker, a psychiatrist, which discussed Y’s mental condition. In 1979 Y had consulted Dr Parker following a government medical officer’s assessment that he was unfit for work as a clerk in the public service. At this time Dr Parker reported that there was no evidence that Y was suffering from any form of mental illness. Indeed, he recommended that Y should be reinstated as a clerk. Dr Parker saw Y again in…

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: [2004] FCA 184
Decision Date: 4 MARCH 2004

CaseChat Overview and Summary

The applicant, Y, sought to have the decision of the Commissioner of the Human Rights and Equal Opportunity Commission reviewed. Y alleged that Australia Post had engaged in unlawful discrimination against him in breach of the Disability Discrimination Act 1992 (Cth). The central issue in the case was whether Australia Post's refusal to employ Y because of his disability, specifically the anti-social behaviour caused by his disability, amounted to discrimination under the Act. The court had to determine if the Commissioner's findings were legally sound, particularly in light of the High Court's decision in Purvis (on behalf of Hoggan) v New South Wales (Department of Education and Training). The court found that the Commissioner had misapplied the meaning of "discrimination" as outlined in Purvis, which required a comparison between the treatment of the person with the disability and a person without the disability in similar circumstances. Since the Commissioner did not make the necessary comparisons, the court found an error of law. The court noted that while the matter might need to be remitted for reconsideration, it was also possible that the outcome would be the same due to the Commissioner's factual findings. The court will hear further submissions from the parties on the appropriate orders to be made.

Orders