Commonwealth of Australia v Williams [2002] FCAFC 435 (20 December 2002)

Last Updated: 20 December 2002

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Williams

[2002] FCAFC 435

ANTI-DISCRIMINATION LEGISLATION - disability discrimination - termination of employment of member of Australian Defence Force because of insulin dependant diabetes - member a communications and information systems controller in Royal Australian Air Force - whether employment in a position involving the performance of combat-related duties

WORDS AND PHRASES - "position involving the performance of combat-related duties"

Disability Discrimination Act 1993 (Cth) ss 15(4), 53(1)(a)

Disability Discrimination Regulations SR 27 of 1996 regs 3,4

Williams v Commonwealth of Australia [2002] FMCA 89 reversed

X v Commonwealth (1999) 193 CLR 177 at 190 referred to

Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 at [72] applied

COMMONWEALTH OF AUSTRALIA v GARY WILLIAMS

D 15 of 2002

HILL, HEEREY AND GYLES JJ

20 DECEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 15 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	COMMONWEALTH OF AUSTRALIA APPELLANT
AND:	GARY WILLIAMS RESPONDENT
JUDGE:	HILL, HEEREY AND GYLES JJ
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The judgment below is set aside and in lieu thereof it is ordered that the application be dismissed.

3. The respondent pay the appellant's costs of the appeal and at first instance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 15 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	COMMONWEALTH OF AUSTRALIA APPELLANT
AND:	GARY WILLIAMS RESPONDENT

JUDGE:	HILL, HEEREY AND GYLES JJ
DATE:	20 DECEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 On 3 March 2000 the respondent Gary Williams was discharged from the Royal Australian Air Force (RAAF) on medical grounds. He was suffering from insulin dependent diabetes (IDD), a condition which had been diagnosed on 2 October 1989. A Federal Magistrate held that the discharge of the respondent had constituted unlawful discrimination contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the DD Act): Williams v Commonwealth of Australia [2002] FMCA 89. The Commonwealth appeals from that decision.

Legislation

2 Section 15(2)(c) of the DD 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. It was not in dispute that the respondent's IDD was a disability and that the Commonwealth dismissed him on that ground. However, the Commonwealth relied on two provisions of the DD Act as justifying its action. The first of these is s 53(1) which relevantly provides:

"This Part [ie Part 2, including s 15] does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability in connection with employment, engagement or appointment in the Defence Force:

(a) in a position involving the performance of combat duties, combat-related duties or peace keeping service; or

(b) ...

(c) ..."

3 Section 53(2) provides for definitions of the terms "combat duties" and "combat-related duties" to be declared by regulation. The Disability Discrimination Regulations (the Regulations) made on 29 January 1996, SR 27 of 1996, provided:

"3. For the purposes of subsection 53(2) of the [DD] Act, the following duties are declared to be combat duties, namely, duties which require, or which are likely to require, a person to commit, or participate directly in the commission of, an act of violence in the event of armed conflict.

4. For the purposes of subsection 53(2) of the [DD] Act, the following duties are declared to be combat-related duties:

(a) duties which require, or which are likely to require, a person to undertake training or preparation for, or in connection with, combat duties;

(b) duties which require, or which are likely to require, a person to work in support of a person performing combat duties."

4 Thus 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) did not render -

"... unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment; or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer."

Respondent's RAAF career

5 The respondent was born in 1959. He left school at age fifteen. After some work as a bricklayer and for a brewing company and as a taxi driver he enlisted in the RAAF on 6 October 1981 at Melbourne. He was initially a defence guard but on 12 April 1989 he was remustered to Communications and Information Systems Operator (COMMSOP). After initial training at Laverton in Victoria he was posted to Darwin on 16 April 1989. For the rest of his time in the RAAF he served in the communications area apart from intermittent general training exercises in 1989 and 1998/99. On 1 January 1994 he was remustered to Communications and Information Systems Controller (CISCON) following the demise of the COMMSOP mustering.

6 The duties he performed as CISCON included receiving and transmitting messages, postal and telecom service duties and coding and decoding messages. At the time of his discharge he was an Information Technology technician repairing computers and advising personnel on minor technical issues on hardware and software and on printers (trouble shooting). He was not responsible for repair and maintenance of communications equipment.

7 As already mentioned, the respondent was diagnosed with IDD in October 1989. On 13 August 1991 he was determined medically unfit for the duties of his mustering (MUDM). After an internal appeal process, it was found on 23 July 1992 that the respondent had improved "enormously" in the control of his condition, that he had been assessed as having "sufficient control over his diabetes to now be able to perform all the duties of COMMSOP" and specifically that he could now "perform shift work and field and tactical deployments at medical officer discretion".

8 In November 1992 the RAAF Employment Standards Committee (ESC) varied the decision of August 1991 by allocating the respondent an Employment Standard (ES)

"A4 - G5P (Unfit Field/Tactical Deployments) - Z4P". However the ESC noted:

"Strong medical evidence has now been presented which suggests that his control has improved in the last year and the airman is therefore considered to be medically fit for continued employment in his present mustering".

9 In 1994 the respondent sought a posting to Butterworth but his request was refused on the ground of lack of relevant specialist medical support in that area.

10 In January 1995 the respondent was promoted to the rank of Corporal.

11 In early 1997 he applied for a posting to Alice Springs. This was refused because of the lack of facilities for treatment of diabetes in that locality.

12 On 3 February 1998 the ESC again declared the respondent medically unfit for further service. His ES became G8P-MUFS. The minute of the order included the following:

"The DHSB representative advised that CPL Williams was diagnosed as an insulin dependent diabetic (IDD) in 1989. It is reported that control of his condition is poor mainly due to non-compliance with dietary and weight loss requirements. Specialist advice from DHSB is that the condition is unpredictable, even to those who have considerable experience with the disease and its management. Due to the nature of the condition, CPL Williams is considered to be unfit for deployment on a permanent basis as there is always the risk of an unpredictable and serious consequence if the condition becomes uncontrolled.

...

As CPL Williams requires immediate medical care in the event of a relapse and the RAAF has no control over environmental factors, he is considered to be non-deployable on a permanent basis. The DHSB representative further advised that 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."

13 The respondent appealed against that decision. A number of medical reports were obtained. On 24 August 1998 the appeal was refused. The respondent invoked the redress of grievance procedure but the decision was on 2 November 1999 confirmed by Air Vice-Marshall A W Titheridge, Deputy Chief of Air Force, whose letter of that date referred amongst other things to statements provided by the respondent but said:

"However, these statements failed to address the critical issue of your ability to self manage your condition in a long term deployment. In addition you would be subjected to irregular working hours and a severely restricted dietary intake which is not conducive to proper management of IDDM. I believe that both these statements ignore the impact of your medical condition your deployability."

Relevant defence instructions

14 The parties agreed that certain minutes, directives and direct instructions (DI) applied to the employment of the respondent. These instructions are to be seen against the background of Australian Defence policy since July 1991 known as the Commercial Support Program (CSP). In terms of the Defence White Paper 1994 par 6.8 one of the key objectives of this program was to maximise -

"combat capabilities by reducing the numbers of service personnel involved in the administrative and base support functions and by using commercial and civilian support and maintenance where operationally feasible, practicable and cost-effective to do so. This lead to the development of a policy for determining the minimum number of members required in uniform (MRU) for the ADF and a policy for the employment of civilian personnel in support of the ADF."

15 On 14 May 1996 the RAAF issued Chief of Air Staff Directive 3/96 which informed members of the provision of the RAAF fitness policy and introduced a minimum employment standard (ES) whereby every members was required as a minimum to be "medically fit for long-term employment [sic, deployment?] to an activated bare base (eg RAAF Curtin) and able to undertake base combatant duties".

16 On 30 May 1996 the RAAF issued a revised DI which confirmed the minimum ES already mentioned and amongst other matters set out the intended meaning of the terms used. The DI provided the following definition of "Deployability":

"An indicative list of activities in circumstances related to deployment, together with appropriate definitions, are listed at Annex B to this Instruction. Implicit in a deployed role is the requirement for personnel to undertake either `combat', or `combat related' duties; these terms are also defined at Annex B. In addition to being required to undertake all pre-operational deployment actions, including vaccinations, the highest standards which are fundamental to deployment are that the medical fitness of the individual:

(a) does not require uninterrupted access to medication, specialist care, dietary concessions or medical appliances;

(b) is not prone to sudden deterioration which is likely to compromise the individual's health, impose an evacuation burden or reduce operational capability;

(c) should not deteriorate in the range of environmental operational conditions under which the person may be expected to function during deployment; and

(d) should not be at risk owing to the pre-existing medical conditions of co-workers in the unique circumstances of the ADF work place."

17 "Combat Duties" and "Combat-related Duties' were defined in substantially the same terms as in the Regulations. "Long term deployment" was defined as "deployment to an activated bare base environment for a period which may extend up to 12 months". A bare base environment was -

"considered to have many, if not all of the following characteristics:

(a) Geographically isolated.

(b) Medical support is limited to General Practitioner/level care.

(c) Social psychological support is limited.

(d) Logistic support is limited or delayed.

(e) Evacuation is difficult and not readily achievable.

(f) Basic facilities which may include:

(1) tent/hootchie accommodation,

(2) limited field or self catering, with no special diets available, and

(3) limited provision for hygiene.

(g) Conditions are arduous and include:

(1) minimum twelve hour working day, often extended to sixteen hours,

(2) irregular work/rest schedules with individuals likely to become chronically fatigued, and

(3) environmental extremes."

18 "Base Combatant Duties" were defined in these terms:

"Work requirements of an activated Bare Base are different to normal Base activities and are undertaken by officers and airmen and airwomen. They are physically and psychologically arduous and involve extended work periods of patrolling, climbing, running, digging and similar tasks undertaken in environment extremes with associated disruption and likelihood of acute fatigue. Furthermore, significant stress is also associated with combat and related activities, particularly for support personnel. These tasks require strength, endurance and full mobility and do not allow for any disability."

19 In relation to CISCON mustering, the occupational specification included the following:

"1. Role. The role of the Communications and Information Systems Controller (CISCON) mustering is to provide communication and information systems support to deployed forces, higher commands and national authorities.

2. Responsibilities. CISCONs are responsible for the management of computer and communication systems. In particular, CISCONs provide both secure and non-secure voice, data, video and message services to the ADF over all communication media. CISCONs are also responsible for data entry into some of these systems.

3. Areas of employment. CISCONs are employed in a range of tasks including management and operation of information technology and communications security systems, strategic and field communications, ground to air communications, safehand courier service and field telephones and land lines.

4. ...

5. ...

6. Working conditions. Working conditions are generally good, with most duties completed in comfortable air-conditioned centres. During exercises and operations however, CISCONs may be required to live under adverse conditions. Shift work is required in some work environments in which a CISCON is employed."

20 The detailed "List of Core Competencies" include technical requirements but also the following under "Range of Variables":

"Work may be performed in peace, tension or conflict.

Work may be performed in an operational environment

Work may be performed in a field environment."

Re-engagement

21 At various stages the respondent re-engaged for service. The last re-engagement before his discharge was on 4 November 1996. The form "RAAF Re-engagement Agreement" includes under the heading "Part 2 Medical Fitness: Employment Standard and/or Comments", in handwriting:

"A4G5P (unfit field or tactical deployments) Z5P (medically unfit to serve at establishments which do not have ongoing access to specialist facilities). Fully fit for base competent duties. ES 13 valid." (Emphasis in original)

It appears to be signed by a medical officer.

The Magistrate's decision

22 The Magistrate reviewed the evidence and submissions. Then under the heading "Reasoning" his Honour made findings that the respondent suffered from IDD, that this was a disability, and that he was discharged from the RAAF due to that disability.

23 His Honour found that between his diagnosis on 2 October 1989 and his termination on 3 March 2000 the respondent essentially "performed tasks which could be described as a Communications Operator". The duties were performed mostly in comfortable air-conditioned centres and there was no evidence to suggest that the respondent performed his duties in a manner other than with due diligence and efficiency. After referring to a combat course in 1995 and the training exercises already mentioned above his Honour noted that on 4 March 1996 the respondent was found to be fully fit for base combatant duties though his employment standard of A4-G5P meant he was unfit for field or tactical deployment. His Honour said (at [137]):

"On the material before me it is clear that the applicant has never been selected for tactical deployment and on the balance of probabilities I find that it was unlikely that he would be so selected given the nature of his occupation up to the date of discharge."

24 His Honour found that "the only change of circumstances in reality" which occurred to the respondent's engagement was the introduction of the CAS Directive 3/96 on 14 May 1996 which introduced the minimum employment standard requiring as a minimum to be "medically fit for long term employment to an activated Bare Base (eg RAAF Curtin) and able to undertake base combat duties". It was the deployment to an "activated Bare Base" which in his Honour's view appeared to "present some difficulty".

25 His Honour (at [142]) thought it clear that throughout his employment with the RAAF the respondent, apart from some training and a few exercises, had not been engaged in activities which could properly be described as combat duties or combat related duties -

"save and except that it might be said that in his position involving communications he was at least involved in directly supporting other persons who were performing combat duties."

26 After referring to s 15(4) his Honour said (at [145]) that it was -

"appropriate to look specifically at the inherent requirements of the particular employment which the Applicant had performed prior to

discharge. It is clear in my view that whilst there may have been a directive concerning deployment to a Bare Base facility which may have involved combat or combat-related duties, the finding of fact which is open to me as a matter of fact is that it was not an inherent requirement of the particular employment of this Applicant. It had not in fact been an inherent requirement of the particular employment throughout the period of the Applicant's engagement with the RAAF in the communications/information technology occupation. It is clear on the evidence before me that there is no immediate prospect and nor has there been a past prospect of the Applicant being posted overseas and/or deployed to a Bare Base facility for twelve months. ...

On the material before me I am not prepared to find that in analysing the particular employment of this Applicant that there are inherent requirements of the employment that he should perform combat or combat related duties in any real or actual day to day sense. At its highest there is a requirement or minimum employment standard which has been artificially imposed on all defence personnel which cannot in my view simply apply to each and every occupation regardless of the practical day to day reality of the inherent requirements of the particular employment of the member concerned."

27 His Honour rejected the submission that -

"the theoretical potential requirements of members of the RAAF should be used as a basis upon which an analysis of the particular employment and inherent requirements of the particular employment can be assessed for this Applicant."

28 His Honour found (at [147]) that "combat or combat-related duties were not an inherent requirement of this particular employment". His Honour then mentioned a passage from X v Commonwealth (1999) 193 CLR 177 at 190 and continued (at [153]):

"In relation to s 53(1)(a) of the DD A[ct] it is clear from the decision of X v Commonwealth that that section is not an exclusive code concerning discrimination against employees of the Defence Force. Although it defines an area where the executive can remove from the jurisdiction of the Human Rights and Equal Opportunity Commission that [sic] it is still appropriate to make an assessment of the reality as to whether or not the member, and in particular that the Applicant in the present case in truth and in fact can be described as a person in a position involving the performance of combat duties, combat related duties or peacekeeping services having regard to the relevant definitions. To conclude that any work in support of persons performing combat duties would encompass the activities of the Applicant and thereby remove from the jurisdiction of this Court the application of the discrimination provision of the DD A[ct] in my view is too general having regard to my findings of fact as to the reality of the Applicant's employment.

... To apply a `blanket' immunity from the application of the DD A[ct] simply on the basis of a general interpretation of combat related duties will be inconsistent with the day to day reality of the Applicant's inherent requirements of his particular employment in my view is not sustainable. 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. The section clearly contemplates the distinction between combat and non combat personnel and for the reasons stated I am not satisfied that on the evidence in this particular case that the Applicant could be regarded as a person who could be said to be in a position involving the performance of combat duties or combat related duties."

Conclusion on the appeal

29 It seems to us that the problem with his Honour's approach is that he commenced with s 15(4) and found that combat-related activities were not an inherent requirement of the particular employment in fact engaged in by the respondent in a "real or actual day to day sense". In truth, the logical starting point is s 53. If the requirements of that section are satisfied, s 15(2) can have no application. More importantly, concentration on what the evidence showed the respondent was in fact doing carried over to his Honour's subsequent consideration of s 53 where his Honour again spoke of "the day to day reality" and whether the respondent was in fact in a position involving performance of combat-related duties. But s 53 uses different language and is concerned with a different concept.

30 Section 15(4) focuses on the actual duties and tasks an employee is required to carry out. Section 53 by contrast, when read in conjunction with the definitions in the Regulations, is speaking of a position which requires the person holding the position to perform certain duties (although other duties may be required).

31 In Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 at [72] McHugh J drew a distinction between a person's "job", a term used in Art 1(2) of the International Labour Organisation's Discrimination Convention and a person's "position" in s 170DF(2) of the Industrial Relations Act 1988 (Cth). His Honour said:

"A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term `job' is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status."

32 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. An obvious example would be a person employed today as a fighter pilot in the RAAF.

33 Accordingly the respondent, as a CISCON, 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, in the sense discussed. 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).

34 Section 53 is not to be read, as the Magistrate's characterisation of the Commonwealth's argument would suggest, in a way that would exempt all members of the ADF from the protection of the DD Act. On the contrary, the section provides a criterion for excluding only some members. No doubt since the change instituted by the MRU policy there will be fewer ADF members outside s 53, since the purpose of that policy is to have civilians carrying out tasks formerly done by ADF members in uniform. But that is not to say that there will not still be ADF members in uniform who nevertheless are not in positions involving the performance of combat duties or combat-related duties. So to that extent we do not see much value in the appeal by senior counsel for the Commonwealth to the general obligations cast on all members of the ADF by provisions such as s 4F of the Air Force Act 1923 (Cth), its equivalent for the other Services, and s 29(1) of the Defence Force Discipline Act 1982 (Cth). Although in one sense every member of the ADF works in support of those who are performing combat duties, s 53 and the Regulations require an element of directness, so that perhaps some member in a recruiting office or in public relations would not be caught by the section. But the question where the line is to be drawn in a hypothetical case does not affect our conclusion that the respondent was within it.

Orders

35 The appeal will be allowed and the judgment below set aside. In lieu thereof it is ordered that the application be dismissed. There will be an order that the respondent pay the appellant's costs of the appeal and at first instance.

I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Heerey and Gyles.

Associate:

Dated: 19 December 2002

Counsel for the Appellant:	R R S Tracey QC and M D Murphy
Solicitor for the Appellcant:	Australian Government Solicitor
Counsel for the Respondent:	M Grove
Solicitor for the Respondent:	Ward Keller
Date of Hearing:	14 November 2002
Date of Judgment:	20 December 2002