Discharge of diabetic RAAF operator not discriminatory

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Discharge of diabetic RAAF operator not discriminatory

The Full Court of the Federal Court has overturned a previous ruling that found the discharge of a diabetic communications operator in the RAAF discriminatory. In the initial case, a Federal Magistrate found the discharge was discriminatory because rather than being based on the 'day-to-day reality' of the employee's job, it was based on a minimum fitness standard which required all personnel to be medically fit for long-term deployment to an activated bare base and able to undertake base combat duties.

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The Full Court of the Federal Court has overturned a previous ruling that found the discharge of a diabetic communications operator in the RAAF discriminatory. In the initial case, a Federal Magistrate found the discharge was discriminatory because rather than being based on the 'day-to-day reality' of the employee's job, it was based on a minimum fitness standard which required all personnel to be medically fit for long-term deployment to an activated bare base and able to undertake base combat duties.
 
On appeal, the Commonwealth relied on two exemptions to the Disability Discrimination Act which apply to employees performing combat duties or combat-related duties and employees who may require services or facilities not required by others, the provision of which imposes an unjustifiable hardship on the employer.
 
The Full Court found the magistrate concentrated too much on 'the day-to-day reality' of the employee's role. 'Section s 53 ... extends to duties which are likely to require (as distinct from actually require) commission etc of an act of violence in the event of armed conflict. A person may be employed in the Defence Force in a position to which s 53(a) applies even though there is no armed conflict existing at the moment.' Accordingly, they found, the employee, as part of the communications team, 'was employed in a position involving the performance of combat-related duties because he was likely to be required to work in support of a person, such as a fighter pilot or other aircrew, performing combat duties'.
 
Background
 
The employee was discharged from the Royal Australian Air Force on medical grounds as he was suffering from insulin dependent diabetes (IDD). A Federal Magistrate held that the discharge constituted unlawful discrimination contrary to s 15(2)(c) of the Disability Discrimination Act 1992. The Commonwealth appealed against that decision.
 
Section 15(2)(c) of the Disability Discrimination Act provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee's disability by dismissing the employee. However, the Commonwealth relied on two provisions of the Act as justifying the discharge.
 
The first of these was s 53(1) which exempts discrimination in defence force positions which involve the performance of combat duties or combat-related duties. Section 53(2) of the Act makes provision for the terms 'combat duties' and 'combat-related duties' to be declared by regulation. The relevant regulation specifies that these duties include those which require, or which are likely to require, a person to undertake training or preparation for, or in connection with, combat duties; and duties which require, or which are likely to require, a person to work in support of a person performing combat duties. The Commonwealth argued that if s 53(1)(a) applied, it would provide a complete answer to a complaint of discrimination contrary to s 15(2)(c).
 
The second provision relied on by the Commonwealth was s 15(4) which provided that s 15(2)(c) exempted discrimination where the employee's disability leaves them unable to carry out the inherent requirements of the particular employment; or where they require services or facilities not required by others, the provision of which imposes an unjustifiable hardship on the employer.
 
The employee enlisted in the RAAF in 1981, however, he was only diagnosed with IDD in 1989. For most of his service career he served in the communications area. At the time of his discharge he was an IT technician in the communications area. In 1991 he was determined medically unfit for duties. After an internal appeal process, it was found in 1992 that he had improved 'enormously' in the control of his condition and was able to perform all his duties.
 
In 1996 the RAAF introduced a minimum employment fitness standard whereby all personnel were required to be medically fit for long-term deployment to an activated bare base and able to undertake base combat duties.
 
In 1998 the RAAF again declared the employee medically unfit for further service based on specialist advice that his condition was unpredictable, even to those with considerable experience with the disease and its management. It said that as the employee required immediate medical care in the event of a relapse, and the RAAF has no control over environmental factors, he was considered to be non-deployable on a permanent basis. 'IDDs require regular monitoring of their sugar levels, regular and controlled rest periods and regular meals in addition to their medication and medical support. These factors cannot be guaranteed in a deployed situation, even to a bare base.' The employee appealed against this decision, but the appeal was refused.
 
In the initial case, a Federal Magistrate found that the employee had never been selected for tactical deployment and, on the balance of probabilities, that it was 'unlikely that he would be so selected given the nature of his occupation'. He found that 'the only change of circumstances in reality' which occurred to the employee's engagement was the introduction of the minimum fitness standard. It was the deployment to an 'activated bare base' which appeared to 'present some difficulty'.
 
After referring to s 15(4) the Federal Magistrate said that it was 'appropriate to look specifically at the inherent requirements of the particular employment which the [employee] had performed prior to discharge'. He said 'there is no immediate prospect and nor has there been a past prospect of the [employee] being posted overseas and/or deployed to a bare base facility for 12 months.' He concluded that 'combat or combat-related duties were not an inherent requirement of this particular employment' and went on to criticise the attempt to apply a 'blanket immunity' from the DD Act. 'If that were the case then s 53 would only need to say that this part does not render it unlawful for a person to discriminate against another person who is employed, engaged or appointed in the Defence Forces.'
 
Findings
 
The Full Court said the problem with the Federal Magistrate's approach was that he began with s 15(4) and found that combat-related activities were not an inherent requirement for the employee. They said that in fact, the logical starting point is s 53. If the requirements of that section were satisfied, s 15(2) can have no application. The Full Court found the magistrate concentrated too much on 'the day-to-day reality' of the employee's role. 'Section s 53 and the regulations contemplate a double contingency. The section extends to duties which are likely to require (as distinct from actually require) commission etc of an act of violence in the event of armed conflict. A person may be employed in the Defence Force in a position to which s 53(a) applies even though there is no armed conflict existing at the moment.'
 
Accordingly, they found, the employee, as part of the communications team, 'was employed in a position involving the performance of combat-related duties because he was likely to be required to work in support of a person, such as a fighter pilot or other aircrew, performing combat duties'. The provision of 'communications and information systems support to deployed forces' is clearly 'work in support of' such forces within the meaning of reg 4(b). The appeal was allowed and the previous judgment set aside.
 
See: Commonwealth of Australia v Williams, [2002] FCAFC 435, (20 December 2002) - Federal Court of Australia - Full Court (Hill, Heereey and Gyles JJ).
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