Y v Human Rights & Equal Opportunity Commission

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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

  1. 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…

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Details
Case
[2004] FCA 184
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINKELSTEIN J

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Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

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