Zoltaszek v Downer EDI Engineering Pty Ltd (No.2) - [2010] FMCA 938

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZOLTASZEK v DOWNER EDI ENGINEERING PTY LTD (No.2)

[2010] FMCA 938

HUMAN RIGHTS – Disability discrimination – whether applicant was an employee – whether back pain and/or tendonitis constituted or gave rise to a disability – whether direct or indirect discrimination or harassment in allocation of work orders or otherwise – application dismissed.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 11, 15, 17, 35
Evidence Act 1995 (Cth), s.140

Ferrus v Qantas Airways Ltd (2006) 155 IR 88; [2006] FCA 812

Fetherston v Peninsula Health [2004] FCA 485
Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44
Purvis v State of New South Wales (Department of Education and Training) and Another (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Short v J & W Henderson Ltd [1946] SC (HL) 24
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16; [1986] HCA 1
Stevenson v Murdoch Community Services Inc [2010] FCA 648
Vassallo v Jetswan Pty Ltd & Anor[2010] FMCA 708

Applicant:

ZENON ZOLTASZEK

Respondent:

DOWNER EDI ENGINEERING PTY LIMITED

File Number:

SYG 1569 of 2009

Judgment of:

Barnes FM

Hearing date:

21 September 2010

Delivered at:

Sydney

Delivered on:

3 December 2010

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms K Nomchong

Solicitors for the Respondent:

FCB Workplace Lawyers & Consultants

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1569 of 2009

ZENON ZOLTASZEK

Applicant

And

DOWNER EDI ENGINEERING PTY LIMITED

Respondent

REASONS FOR JUDGMENT

These proceedings

The applicant, Mr Zoltaszek, alleges discrimination and harassment under the Disability Discrimination Act 1992 (Cth) (the Act) (as it stood prior to 20 July 2009 amendments) by the respondent Downer EDI Engineering Pty Limited (Downer). He filed an application in this court on 1 July 2009 pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (as it then was) following the termination of his complaint to the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission).
Downer provides satellite installation and maintenance services for Foxtel Management Pty Ltd (Foxtel). It engages contractors to carry out the work comprising such services under the terms of Foxtel Subcontractor Agreements. Impowest Pty Ltd (Impowest) was a corporation registered on 4 September 2003. Mr Zoltaszek was at all relevant times the sole director and shareholder of Impowest until its voluntary deregistration on 22 August 2010.
Relevantly, Downer entered into a subcontractor agreement with Impowest on 26 October 2004 for the performance of such services for Foxtel. Mr Zoltaszek was the technician who carried out the work contracted for by Impowest, performing satellite installation and maintenance services from about October 2004 until 9 May 2007.
Mr Zoltaszek claimed that he had a disability within paragraph (e) of the definition of disability in s.4 of the Act, consisting of…

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: [2010] FMCA 938
Decision Date

CaseChat Overview and Summary

The case of Zoltaszek v Downer EDI Engineering Pty Ltd (No. 2) [2010] FMCA 938 was heard by Barnes FM in the Federal Magistrates Court. The applicant, Zenon Zoltaszek, sought to establish discrimination and harassment under the Disability Discrimination Act 1992 (Cth) by the respondent, Downer EDI Engineering Pty Limited, alleging that he was an employee or contract worker of Downer. Zoltaszek claimed that Downer failed to provide him with light duties after he informed them of his tendonitis and that the requirement to attend installation jobs which required heavy lifting constituted either direct or indirect discrimination. Zoltaszek also alleged that Downer engaged in harassment contrary to the Act. The court found that Zoltaszek had not established any unlawful conduct under the Act. The court determined that Zoltaszek was not an employee of Downer but an employee of Impowest Pty Ltd, an independent contractor. The court found that Zoltaszek had not proven that he had a disability within the meaning of the Act, and that Downer had not discriminated against him on the ground of any disability. The court also found that Downer had not engaged in any harassment of Zoltaszek. The application was dismissed.

Orders