Arrah v P & O Catering Services Pty Ltd [2002] FMCA 27 (22 February 2002)

Last Updated: 25 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARRAH v P & O CATERING & SERVICES P/L

[2002] FMCA 27

DISABILITY DISCRIMINATION - Unlawful discrimination - claim of failure to obtain or be considered for promotion due to disability.

Disability Discrimination Act 1992 ss 5 & 15

Commonwealth v Humphries (1998) 86 FCR 324

Human Rights & Equal Opportunity Commission v Mt Isa Mines Ltd (1993)

46 FCR 301

Applicant:

ANDREW JOHN ARRAH

Respondent:

P & O CATERING & SERVICES PTY LTD (NOW EUREST (AUSTRALIA) CATERING & SERVICES PTY LIMITED)

File No:

WZ 10 of 2001

Delivered on:

22 February 2002

Delivered at:

Perth

Hearing Date:

14 August 2001

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr D Heldsinger

Solicitors for the Applicant:

David Heldsinger

Counsel for the Respondent:

Mr T Caspersz

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

WZ 10 of 2001

ANDREW JOHN ARRAH

Applicant

And

P & O CATERING & SERVICES PTY LIMITED

(NOW EUREST (AUSTRALIA) CATERING & SERVICES PTY LIMITED)

Respondent

REASONS FOR JUDGMENT

1. This is an application by ANDREW JOHN ARRAH ("the applicant") who had made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) alleging discrimination against him by P & O CATERING & SERVICES PTY LTD (now Eurest (Australia) Catering & Services Pty Limited) ("the respondent"). The complaint to HREOC was based upon an alleged breach of the Disability Discrimination Act 1992.

2. In brief terms it is common ground that the applicant commenced employment with the respondent on 9 April 1996. On 28 April 1996 he commenced workers compensation leave because of a disability. In August 1997 during his absence a position of Gardener Supervisor became available with another gardener being appointed to that position in October 1997.

3. Upon his return to work on a graduated return to work program in December 1997 the applicant became aware that the position of Gardener Supervisor had been filled by direct appointment.

4. According to the applicant's Amended Statement of Claim filed

11 June 2001 he had performed duties for the respondent as a gardener from 9 April 1996 under the Industrial Catering Cleaning & Incidental Services (AWW & LIIMU) Award 1988. He asserts that shortly after he commenced that employment he assumed responsibility for training and supervision of other employees of the respondent and claims that his terms of employment were varied and that he took up the role of "Gardener Supervisor".

5. The applicant claims that on 26 April 1996 he suffered bilateral carpal tunnel syndrome ("the condition") allegedly as a result of using a chainsaw for extended periods of time whilst working for the respondent cleaning up debris left by a cyclone which passed through Paraburdoo on 10 April 1996. As a consequence of the condition he underwent surgery on 28 May 1997 and 20 August 1997. It would seem to be common ground that the injury occurred and the condition was suffered by the applicant in the circumstances he describes and no issue was taken at the hearing of the matter that he thereafter suffered from a disability which he described in his Statement of Claim as a "3% permanent disability of conductive nerve damage to both of his hands".

6. According to the claim on 15 December 1997 the applicant returned to his employment with the respondent on a graduated return to work and was instructed by the respondent to perform all of the duties which he had carried out prior to his absence due to the disability other than supervision.

7. It is in those circumstances the applicant claims he was treated less favourably on the ground of his disability pursuant to section 15(2) of the Disability Discrimination Act 1992 (the DDA) in that he claims that upon his return to work on 15 December 1997 he discovered that the position that he believed he was then performing of Gardening Supervisor had been given to another worker, a Mr McGuire.

8. Section 15 of the DDA provides:

"(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a) In the arrangements made for the purpose of determining who should be offered employment; or

(b) In determining who should be offered employment; or

(c) In the terms or conditions on which employment is offered.

(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employees disability or a disability of any of that employee's associates;

(a) In the terms or conditions of employment that the employer affords the employee; or

(b) By denying the employee access or limiting the employee's access to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) By dismissing the employee; or

(d) By subjecting the employee to any other detriment."

9. In its defence the respondent essentially admits the background circumstances concerning the applicants employment save that he was a supervisor and that he had been diagnosed as suffering from bilateral carpal tunnel syndrome referred to in the claim. It admits appointing Mr McGuire as Gardener Supervisor on or about 13 October 1997 and that that appointment preceded the applicant's return to work on

15 December 1997. There is no dispute that the applicant lodged a complaint with HREOC on 23 March 1999 and that the complaint was terminated on 15 January 2001 by Notice of Termination issued pursuant to s 46PH(2) of the Human Rights and Equal Opportunity Act 1986 ("the HREOC Act"). It is noted that the applicant had previously lodged a complaint with HREOC about the same subject matter in April 1999 and after investigation the Disability Discrimination Commissioner concluded the complaint was lacking in substance and the alleged acts of unlawful discrimination were more than 12 months old at the time the complaint was lodged. Review of that decision was sought and the matter referred to the President who confirmed it by letter dated 23 December 1999. Hence the termination of the complaint on 15 January 2001 pursuant to s 46PH(1)(f) of the HREOC Act occurred because the decisionmaker was satisfied that the matter of the complaint had already been adequately dealt with by the commission.

10. It should be noted that at the time when the application was commenced in this court the applicant was unrepresented and had initially named the Human Rights and Equal Opportunity Commission as respondent. He was permitted to file an Amended Application naming the current respondent which it is noted is now called Eurest (Australia) Catering & Services Pty Ltd.

11. Ultimately at the hearing of the application the applicant was legally represented.

12. Essentially the applicant claims that as a result of the discrimination he is entitled to damages and in his claim refers to a loss of income for 70 weeks amounting to a total sum of $26,117 together with a claim for $10,000 being damages for loss of injury to feelings, hurt, humiliation, distress and related pain and suffering. He also seeks an apology from the respondent and a declaration that he had been the subject of discrimination by the respondent. The respondent denies the claim and denies the entitlement to relief by way of declaration and damages.

13. It is accepted that the task of the court requires a factual enquiry to determine whether less favourable treatment has occurred and that a conclusion of that kind is only possible if the treatment experienced occurs in circumstances that are the same or not materially different from those in which a person who does not suffer from any disability has received or would receive more favourable treatment. The DDA would not permit the finding of discrimination on the ground of disability unless it could be established there was a casual relationship established between the disability of the aggrieved person and any less favourable treatment accorded to him (See Commonwealth v Humphries (1998) 86 FCR 324 and Human Rights & Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301). It is, according to the authorities, a factual enquiry and the court needs to consider the surrounding circumstances in accordance with those authorities including the alleged discriminators reasons for the conduct which is the subject of complaint.

14. Both parties in fact referred me to an extract from the judgment of Keiffel J in Commonwealth v Humphries which appears at page 334 of the judgment as follows:

"The reasons do not explain how the other enquiry posed by the question, as to the reason for the different treatment, is to answered, save that they would appear to treat as discriminatory an unfulfilled need brought about by the disability in question. The grounds for discrimination (´because of') require more. It would need to be found that Mrs Humphries' disability brought about the less favourable treatment or caused it to occur. Mt Isa Mines Lockhart J at 321-322. As I have earlier outlined that may be shown by actual motive or intention, or it may be inferred, especially where no other reason is evident."

15. Further in his judgment Keiffel J states at page 335 the following:

"The obligation upon employers, then is not to discriminate against disabled employees because of their disability."

16. As will be noted by those authorities although the claim specifically referred to s 15 of the DDA the nature of the discrimination is in brief terms that he applicant claims he was discriminated against or treated less favourably for the purposes of s 5 of the DD Act which provides:

"(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability."

17. In very simple terms both the evidence and the main thrust of the applicant's case was that when he returned to work on 15 December 1997 it was his expectation that he would be put in the position of Gardener/Supervisor which he believed he carried out prior to his absence. He could not understand why Mr McGuire had been appointed to the position. It is common ground that the position of Gardener supervisor was not advertised.

18. At the time of the hearing of the application the applicant was gainfully employed at a golf course as a greenkeeper. He amended his claim for damages from the amount referred to in the Statement of Claim to $31,500 which is as I understand it resulted in an increase of what might be described as the general claim from $10,000 to $20,000 and the balance being for loss of income amounting to $11,500. No real explanation was advanced as to why the original amount claimed of $10,000 for general damages had increased to the sum of $20,000.

19. As I understand it however the suggestion that for a period of 23 months the applicant received a lower income than he would have received had he been granted the promotion and the additional pay which it is said amounted to $6,000 over twelve months thereby making a total of $11,500 over 23 months.

20. The applicant gave evidence that upon his return to work on the graduated return to work program he was told by Mr Jackson of the respondent that Mr McGuire had been appointed to the position of Gardener Supervisor and that he would be working under Mr McGuire. The applicant stated that he was furious and stunned by that response and said that he just "couldn't believe it". He allegedly told Mr Jackson, "I am going to pursue this inside and outside the company if I have to. This isn't right". He asserted that he was a qualified tradesman and believed he had earned the situation to be responsible for other staff and stated that, "To have inexperienced unqualified staff in a position to tell me what to do is wrong and unsafe with some of the equipment we use." A work schedule had been produced during the applicant's absence from work.

21. When asked to comment on a view expressed by Mr Hyams of the respondent that the applicant had not been required to undertake any supervision or training tasks, the applicant stated that that was wrong and indicated that he believed that from time to time he would be told to "show them what to do" in relation to casual staff with no previous experience. He gave evidence about two casual workers from England and suggested he had supervised them at one time.

22. Under cross-examination the applicant agreed that the position of Gardener Supervisor had never been made official before the appointment of Mr McGuire. He had never been appointed in writing to that position. He agreed that apart from four weeks of filing from

28 April to 28 May 1997 he did not undertake any work for the respondent until he returned to work on the graduated return to work program on 15 December 1997. It was confirmed that he had been first appointed in April 1996. He agreed that initially the duties described were the duties of a gardener involving the usual range of duties that would normally be performed in that position including lawn mowing, weed control, upkeep of reticulation system, maintaining of swimming pool, assisting when required in other areas, rubbish removal and the like and that those duties were consistent with the duties set out in the return to work program as at 15 December 1997. He agreed that they were the same duties he was performing when he started work in April 1996. He agreed that during the period when he was required to work at Paraburdoo he was working unsupervised and that as the qualified horticulturalist it was natural for the respondent to look for him to give some directions to other persons. He disagreed however that this role did not constitute appointment as a supervisor. He further disagreed with the suggestion that he was demonstrating work rather than supervising it, however he did agree that he had never been sent on any supervisory course or any training course. He agreed that in reference to Mr McGuire at one stage he had been asked to ensure that Mr McGuire attended work but concede that this was because he had a company car and could take Mr McGuire to the work site. He agreed that this was simply a matter of convenience though seemed to assert that it still involved a degree of supervisory role over Mr McGuire.

23. Apart from the reference to Mr McGuire the applicant agreed that he did not have any other instructions to check progress of gardeners. The exceptions he referred to were two casual workers who were employed for a period of approximately three or four weeks.

24. The applicant agreed in cross examination that he had been dismissed on 15 January 1997 and thereafter commenced proceedings in both the State and Federal Industrial Relations Commission. His application to the Federal Industrial Relations commission signed by him in February 1997 referred to his occupation as "gardener". He agreed it did not refer to the occupation as being "Gardener Supervisor". He further conceded that no one else in the workplace had ever acknowledged either in writing or otherwise that he had been a Gardener Supervisor although seemed to assert that Mr Hyams had made a suggestion at one stage that he may have been in a supervisory role. He agreed in cross examination that when alerted to the fact that Mr McGuire would be his supervisor that he took objection to that and felt that he was in fact more qualified and experienced than Mr McGuire and did not want to be answering to someone in those circumstances who was unqualified and inexperienced.

25. When specifically confronted with the proposition that he was not told by anybody in the respondent that he was not considered for appointment as supervisor because of his disability the applicant disagreed and asserted in evidence that he was told by Mr Jackson of the respondent company words to that affect. He was unable to point to any affidavit material where reference was being made to being told by any representative of the respondent that he had not been appointed due to his disability. He disagreed that his shock and surprise about the non appointment to the position was due to his professional pride being injured and thinking that someone else who was unqualified was going to be given the position as his supervisor. He agreed that Mr Jackson was implementing the decision of Mr Hyams of the respondent and explained to him that he was not present when the decision was made and did not make any mention of disability.

26. It was confirmed that correspondence from the respondent to the applicant arising out of his complaints of not being appointed to the position of Gardener Supervisor revealed that the respondent had filled the position whilst the applicant was on workers compensation leave and that it was unfortunate that the position was filled during that time and indeed other potential applicants not notified by way of advertisement that the position was to be filled.

27. The respondent in support of its submissions that there has been no unlawful discrimination alleged by the applicant and that he has not been treated less favourably for the purpose of the DDA called evidence of Mr Hyams. The evidence essentially was to support the submission that the applicant did not perform supervisory duties even in the first period of his employment from early April 1996 to

15 January 1997 and that in any event the respondents appointment of Mr McGuire as the supervisory gardener was not due to the applicant's disability. The applicant's failure to obtain that position or have an opportunity to apply for it has not related to any disability.

28. Mr Hyams adopted his affidavit and confirmed that he has previously worked for the respondent from August 1995 until November 1999 having been initially employed as Project Manager for Paraburdoo. He indicated that between August 1995 and January 1997 as Project Manager part of his role was to manage all aspects of the company's contract at Paraburdoo. Mr. Hyams was adamant that at no time did the applicant work in the position as gardener supervisor. He further added that he did not require the applicant to undertake supervisory or training tasks. Mr Hyams said he was responsible for the quality of gardening work completed by the applicant and further that the applicant did not report to the respondent in relation to safety training or discipline concerning other employees of the respondent. Mr Hyams made the decision to appoint Mr McGuire to the position of Gardener Supervisor and did not consider the applicant or any other employee for the position to which Mr McGuire was promoted. He created the position of Gardener Supervisor after visiting Paraburdoo and having a discussion with Mr McGuire who had sought a pay rise. As Operations manager Mr Hyams confirmed it was his responsibility to approve salary rates and other significant financial decisions at Paraburdoo. There was a large amount of gardening work including work at the mine site, the hospital and womens quarters and he believed enough work to justify creating a full time gardening supervisor position rather than appointing a replacement to another gardener Mr Jessup who had been employed as a gardening maintenance supervisor in or about November 1996 but who ultimately was transferred to another site in or about August 1997. Mr Hyams believed that Mr McGuire deserved a pay rise and had effectively been performing the role of gardening maintenance supervisor since Mr Jessup left the site in August 1997 and he was concerned that if Mr McGuire left the Paraburdoo site then there would be problems in maintaining the gardening contract which the company had in the area.

29. In his evidence Mr Hyams specifically said,"My decision to appoint Mr McGuire as supervisor was based on the necessity to placate an irate client effectively. That running parallel with the fact that Mr McGuire was already doing a proportion of the job that had been vacated by Steve Jessup I think at the time and in my opinion that the budgetary considerations had been taken into considerations. There was more gardening work at the time my decision to appoint Gary McGuire was based on those three things effectively".

30. When asked did he ever take into account the fact that Mr Arrah was away at the time on workers compensation leave he answered "No."

31. Under cross examination Mr Hyams agreed that he knew the applicant was a qualified horticulturist. He denied that the applicant had ever carried out supervisory tasks.

Reasoning

32. During the course of submissions there was some reference made as to the appropriate standard of proof and the onus of proof it was submitted by the respondent that the applicant bears the onus of proof and that the appropriate standard of proof should be the standard which applies and referred to as the well known `Briginshaw' standard.

33. In my view regardless of the appropriate standard of proof it is clear in the circumstance of this case that the applicant does bear the onus of proof.

34. On the material before me I am satisfied that in all the circumstances as a matter of fact the applicant at no stage worked in any form position as gardener supervisor. Whilst he may have felt that he undertook in part some minor supervisory duties I am satisfied and find that in fact throughout the time of his employment he only engaged in minimal supervisory duties at times over casual staff and at other times to ensure that another staff member attend the place of employment. The latter supervisory duty really only involved ensuring the attendance of that employee at the place of employment and this was conveniently the task of the applicant as he had possession of a company car used to transport that employee. It is clear on the evidence to me that there was no formal appointment of the applicant and I am satisfied and accept the respondent's submissions that in fact the real cause for grievance by the Applicant does not arise out of any disability but from the fact that he had not been given as with all other employees the opportunity to apply for the position to which Mr McGuire was appointed.

35. It is clearly a matter of regret that the apopintment of Mr McGuire occurred whilst the applicant was on workers compensation leave. It is equally a matter of regret that the position was not advertised and that no other employee had an opportunity to apply for that position. I accept the evidence of Mr Hyams however that the appointment was made in circumstances where there appeared to be at least some business urgency about the matter and that it was an appropriate reward for McGuire who was then pressing for a pay rise.

36. It is perfectly understandable that upon his return to work after having been injured in the manner described that the applicant should feel aggrieved by the fact that a person who he felt was less qualified had then become his supervisor.

37. However applying the principles of law which must be applied in considering whether there has been unlawful discrimination it is important to remember that discrimination will only occur if it can be established that the person who is alleged to have been the subject of discrimination is treated less favourably than others without a disability. On the material before me I am unable to find as a matter of fact that the disability claimed by the applicant had any relevance at all in relation to the decision to appoint Mr McGuire to position of gardening supervisor. I further find as indicated that at no time prior to the appointment of Mr McGuire had the applicant been in the position of gardener supervisor.

38. Hence having regard to those findings it does not matter whether the standard of proof is the Briginshaw standard or indeed the normal balance of probabilities standard. On either standard it is my view that the applicant has failed to discharge the onus which he has to establish unlawful discrimination pursuant to the provisions of the DDA.

39. Whilst I accept that there was some duties which may be required as "supervisory" type duties for a period of 8 months from April 1996, it is clear and I find that from the start of his employment in April 1996 until return to work on graduated return to work duties on 15 December 1997 the applicant did not perform any duties as a supervisor.

40. It is evident that the applicant is disgruntled and disappointed with the appointment and feels that he has been poorly treated by the respondent. Whether that is so or not is unnecessary for me to answer save that on the material one can understand the level of disappointment experienced by the applicant. The question I have to answer in this application however is whether the applicant has been the victim of unlawful discrimination based upon his disability and applying the principles to which I have referred and the findings of fact which I have made it is my conclusion that there has not been unlawful discrimination in this case.

41. In conclusion and to adopt the words of Keiffel J in the case of Humphries to which I have earlier referred it is my view on the evidence and findings that in the present case the applicant has failed to demonstrate that his disability has brought about the less favourable treatment or caused it to occur and I am satisfied that the appointment of Mr McGuire whilst not conducted in a manner which would be regarded as desirable work practice was nevertheless not an appointment which could be said in the circumstances to justify the current claim of unlawful discrimination based on the provisions of the DDA.

42. At the end of the hearing I indicated to counsel that I would give each an opportunity to make formal submissions in relation to costs before making a formal order and it is appropriate to hear further from both counsel in relation to that issue.

43. The application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 22 February 2002