Disability discrimination relates to original duties, not temporary duties

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Disability discrimination relates to original duties, not temporary duties

The Full Court of the Federal Court has dismissed a Qantas employee's claim that his termination after five years of performing temporary roles as part of a rehabilitation program constituted discrimination under the Disability Discrimination Act.

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The Full Court of the Federal Court has dismissed a Qantas employee's claim that his termination after five years of performing temporary roles as part of a rehabilitation program constituted discrimination under the Disability Discrimination Act.

The Full Court said the primary matter in dispute, both in the initial case and on appeal, was identification of the employee's 'particular employment' for the purposes of subs 15(4).

The employee submitted that the whole of the relationship that existed between him and Qantas was relevant to this question. He said that as he had ceased to perform the duties of a ramp services porter at least five years prior to termination, his particular employment at that time was of a more general nature, including all of the work which he had performed or, alternatively, was the employment finally undertaken by him prior to termination, namely clerical duties.

The Full Court said that while due to circumstances duties performed may vary, 'the actual duties of the employee at the relevant time must be determined as a matter of fact, by reference to the original contract of service'. It concluded that the only permanent duties upon which the employee and Qantas ever agreed were those associated with his employment as a ramp services porter. 'All other employment was incidental to his attempted rehabilitation and was provided by way of trial or on a temporary basis ... Throughout the post-injury period, the parties were still operating pursuant to the original contract of employment under which the [employee] was employed as a porter in ramp services.'

Background

The employee, a ramp services porter with Qantas in Melbourne since 1988, suffered a shoulder injury in 1991 while lifting a heavy bag in the course of his employment. After a long period of attempted rehabilitation he was given two-months notice in mid 1997 that his employment would be terminated. He alleged that this termination constituted discrimination in employment contrary to s 15 of the Disability Discrimination Act 1992 and claimed compensation accordingly.

At first instance Justice Heerey found that he had not been unlawfully discriminated against. Justice Heerey heard that ramp services porters had to move baggage and cargo between the baggage room and aircraft and load and unload the aircraft. Employees were organised in groups of six. An important aspect of the work was rotation of the various tasks between group members. This was in the interests of fairness to all since some tasks were more difficult than others and also was a preventive against injury. Some of the activities were intensely physical, others demanded the use of two hands. The work had to be done in all weathers and under great time pressures. On occasions the work could become extremely demanding.

When the employee returned to work in 1992 he performed numerous duties as part of a rehabilitation regime. Some of the work was of a 'one off' kind. Other work proved to be unsuitable given his disabilities. In 1996 he accepted a temporary clerical position in Aircraft Ground Support Equipment (AGSE), replacing a worker who was taking maternity leave. He enjoyed this employment and remained in it until the employee in question returned from leave some months later.

Shortly after this Qantas notified him by letter that due to his injury status it was evident that he was still unable to perform his pre-injury duties. Qantas said it would continue to seek appropriate redeployment opportunities for the next two months, but that following this it would have no alternative but to terminate his services.

Findings

The Full Court of the Federal Court said the primary matter in dispute, both before Justice Heerey and on appeal, was identification of the employee's 'particular employment' for the purposes of subs 15(4).

The employee submitted that the whole of the relationship that existed between him and Qantas was relevant to this question. He said that as he had ceased to perform the duties of a ramp services porter at least five years prior to termination, his particular employment at that time was of a more general nature, including all of the work which he had performed or, alternatively, was the employment finally undertaken by him prior to termination, namely clerical duties in AGSE. Qantas, however, submitted that his particular employment was as a porter in ramp services.

Justice Heerey agreed with Qantas, finding that all employment undertaken since the injury had consisted of temporary assignments as part of the employee's rehabilitation regime. The Full Court agreed with this finding, saying the inclusion in the definition of 'employment' of 'temporary employment' was of no relevance because the employee was, in fact, a permanent employee, up to the time that his employment was terminated.

The Full Court found the expression 'particular employment', where it appears in s 15(4), 'obviously refers to the employment in respect of which the alleged discrimination has occurred, in the present case, that from which the [employee] was dismissed'. It interpreted this as being 'the actual employment which the relevant employee was required to perform pursuant to his contract of employment'. While, due to circumstances, duties performed may vary, the Full Court said 'the actual duties of the employee at the relevant time must be determined as a matter of fact, by reference to the original contract of service and any such variations'.

It said that in this case, Justice Heerey determined that pursuant to the contract of employment, the employee was obliged to work as a member of a group performing ramp portering duties. As a result of injury he was unable to continue performing those duties, but nonetheless was retained in that position while he received the benefit of rehabilitation training and treatment. At no time was it agreed between him and Qantas, expressly or impliedly, that his duties would be changed, other than in the context of assigning him temporary duties as part of a rehabilitation program. In other words, Qantas waived its right to demand performance of portering duties while the parties examined possible alternative duties.

The Full Court agreed that the only permanent duties upon which the employee and Qantas ever agreed were those associated with his employment as a ramp services porter 'All other employment was incidental to his attempted rehabilitation and was provided by way of trial or on a temporary basis ... Throughout the post-injury period, the parties were still operating pursuant to the original contract of employment under which the [employee] was employed as a porter in ramp services.' The employee's third option, that he could be employed for a specific role in ramp services, such as refueling, was inconsistent with the finding that the employee was employed as a porter to perform a range of duties as a member of a group. Consequently, the Full Court dismissed the appeal.

See: Silvano Cosma v Qantas Airways Limited, V 348 OF 2002, Full Federal Court of Australia (Black CJ, Finn & Dowsett JJ) (20 December 2002).

 

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