FEDERAL COURT OF AUSTRALIA Cosma v Qantas Airways Ltd [2002] FCAFC 425 DISCRIMINATION LAW – whether appellant unlawfully discriminated against on the grounds of disability – where injured in 1991 while working as a porter in Ramp Services – where subsequently undertook rehabilitation and other duties – whether "particular employment" was as a porter in Ramp Services – whether "inherent requirements" of employment were that of a person employed as a porter in Ramp Services – where appellant could not resume duties as a porter in Ramp Services – whether respondent unlawfully discriminated in terminating employment in 1997 when appellant could not be redeployed in company Words and Phrases – "particular employment" Disability Discrimination Act 1992 (Cth) ss 11, 15 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 40 Waters v Public Transport Corporation (1991) 173 CLR 349 referred to I W v City of Perth (1997) 191 CLR 1 referred to Qantas Airways Limited v Christie (1997-1998) 193 CLR 280 referred to X v The Commonwealth (1999) 200 CLR 177 followed SILVANO COSMA v QANTAS AIRWAYS LIMITED (ACN 009 661 901) V 348 OF 2002 BLACK CJ, FINN & DOWSETT JJ 20 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 348 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SILVANO COSMA APPELLANT AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) RESPONDENT JUDGES: BLACK CJ, FINN & DOWSETT JJ DATE OF ORDER: 20 DECEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 348 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SILVANO COSMA APPELLANT AND: QANTAS AIRWAYS LIMITED (ACN 009 661 901) RESPONDENT JUDGES: BLACK CJ, FINN & DOWSETT JJ DATE: 20 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant commenced employment with the respondent in 1988. He suffered a shoulder injury in 1991. On 8 May 1997 he was notified that his employment was to be terminated with effect from 11 July 1997. He alleges that this termination constituted discrimination in employment contrary to s 15 of the Disability Discrimination Act 1992 (Cth) (the "Act") and claims compensation accordingly. At first instance Heerey J found that the respondent had not unlawfully discriminated against the appellant in his employment and, at the request of the parties, fixed compensation at $185,291. The appellant appeals against the finding that there was no unlawful discrimination. Section 15 provides as follows: "(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person'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 employee's 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. (3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides. (4) Neither paragraph (1)(b) nor (2)(c) renders 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." 2 For the purposes of subs 15(4) "unjustifiable hardship" is defined by s 11 of the Act as follows: "For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of the disability of a person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and (d) in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64." 3 Although the appellant challenges certain ultimate findings made by Heerey J, he has not suggested that his Honour erred in any respect in recording the evidence. It is therefore appropriate to summarize the case by reference to his Honour's reasons. 4 The appellant was initially employed as "a part-time relief porter, in Ramp Services". He subsequently became a full-time employee in that position. His Honour found at [12]: "Ramp in this context does not mean an inclined structure. It refers to the tarmac area where aircraft are loaded and unloaded. Porters have to move baggage and cargo between the baggage room and aircraft and load and unload the aircraft. Employees are organised in gangs of six, including a leading hand who organizes the work for the gang." 5 His Honour also found that gangs performed various tasks primarily associated with loading aircraft. These included driving vehicles, loading pallets and loading items into aircraft holds. His Honour further found that: "[17] An important aspect of the work is rotation of the various tasks between gang members. This is in the interests of fairness to all since some tasks are more difficult than others and also is a preventive against injury. [18] The activities that gang members are required to perform include the pushing or swivelling of containers, stacking of baggage (an intensely physical task involving twisting and lifting), and climbing onto and off the hoist. Members have to drive vehicles and collect dollies and hitch them up to vehicles. They have to empty the septic tank on aircraft, a task requiring two hands. [19] Gang members often have to do more than one task on the same aircraft. For example the pushback driver may work in the hold before operating the vehicle to push back the aircraft, the hoist operator may have to climb inside the hold to manoeuvre containers which become stuck and the driver delivering late bags may also have to assist in loading those bags inside the aircraft. [20] The work has to be done in all weathers and under great time pressures. On occasions the work can become extremely demanding. For example, in the holds in narrow-bodied aircraft, workers might be lifting and stacking baggage in very confined spaces for over half an hour in temperatures of 40 degrees. [21] Although work on wide-bodied aircraft, while hard enough, is generally less demanding than on narrow-bodied aircraft, there would be, as Mr Steinfort put it, 'real practical and commercial difficulties' in allocating a gang to work only on wide-bodied aircraft. This view is supported by the evidence as to the time pressures under which airlines work (the direct and indirect costs of a minute's delay have been calculated by Qantas at $320 and $370 for domestic and international services respectively) and also the need for flexibility to deal with unexpected delays and changes in schedules and aircraft." 6 The applicant injured his right shoulder on 13 September 1991 whilst lifting a heavy bag in the course of his employment. He returned to work on 2 November but aggravated the injury. He was then off work from 28 January to 14 February 1992. On 5 April 1992 he was declared unfit for work. On 7 April he underwent surgery. 7 At all material times the respondent conducted a rehabilitation programme for injured employees. It was common ground that this programme was of the kind contemplated by the Safety, Rehabilitation and Compensation Act 1988 (Cth). Subsection 40(1) of that Act provides: "Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment." 8 The respondent employed rehabilitation case managers. Three such persons were, at different times, responsible for the appellant's management. All three gave evidence. His Honour found that: "… Qantas had a firm policy that all positions should be filled on merit. Vacancies in positions which might have been suitable for persons disabled from heavy physical tasks, such as clerical work, were extremely rare in Qantas and usually attracted a large number of applicants. There was no policy of giving preference to employees who were on rehabilitation programs." (at [26]) 9 The appellant returned to work on 26 May 1992 and thereafter performed numerous duties. These duties were proposed by officers and rehabilitation case managers of the respondent and discussed by them with the appellant and his medical advisers before he commenced to perform them. Heerey J found at [58] that from the time of his injury until termination, the appellant "remained in a rehabilitation regime". Some of the work performed during this period was of a "one off" kind. Other work proved to be unsuitable given his disabilities. He was offered at least one permanent position but declined it upon the grounds that the applicable roster was unsuitable and that the overtime requirements would impinge on his medical appointments. In September 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 in May or June 1997. On 12 February 1997 his rehabilitation case manager at the time, Ms Jackson, and his previous case manager, Mr Moody, wrote to him saying: "As you are aware we have discussed the current direction of rehabilitation within Qantas, and your return to work and injury status. Progress with your rehabilitation to date, as well as current medical information indicates that you will not return to your pre-injury duties in the foreseeable future. We are now progressing to the next stage in your rehabilitation program which will offer vocational assistance to evaluate redeployment options, as well as the possibility of retraining/reskilling. This will be a structured program involving the use of external resources where required. The program format will be in group and/or individual sessions." 10 The appellant participated in such a programme. It was conducted by a consultant in conjunction with the respondent and lasted for six to eight weeks, with one or two sessions each week. On 17 April 1997 Ms Jackson met with the appellant. The latter asked whether it would be possible for him to stay in AGSE. She told him that there was no permanent vacancy and that the respondent was unable to continue indefinitely to sustain him in alternative duties. She mentioned the possibility that his employment would be terminated. On 8 May 1997, the appellant was notified by letter that: "Following a review of your current injury status it is evident that you continue to be unable to perform your pre-injury duties. In light of this the company will continue to attempt to seek appropriate redeployment opportunities for the next two (2) months. At the conclusion of this period, and if your current medical certificate still prevails, and if no appropriate redeployment opportunities are available, we have no alternative but to terminate your services. … The effective date will be 11th July 1997. There will continue to be opportunities for you to participate in redeployment activities where appropriate for the 2 month period." 11 The primary matter in dispute, both before his Honour and on appeal, was identification of the appellant's "particular employment" for the purposes of subs 15(4). The appellant submitted at first instance that the whole of the relationship which existed between him and the respondent was relevant to this question. He submitted 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 for the respondent or, alternatively, was the employment finally undertaken by him prior to termination, namely clerical duties in AGSE. The respondent submitted that the appellant's particular employment was as a porter in Ramp Services or airline services operator working on the ramp, the essential elements of that employment being: Ÿ as a porter, that is a person engaged in the lifting, carrying, man-handling and storage of baggage and cargo at the ramp at Melbourne airport, Ÿ in a gang operating in the way described elsewhere in his Honour's reasons (at [13] – [21]) at the ramp at Melbourne airport. 12 His Honour accepted the respondent's submission, finding that all other employment undertaken since the injury had consisted of temporary assignments as part of his rehabilitation regime (at [54]). Heerey J considered that the object of the regime had been to return the appellant to his pre-accident position or, if that proved not to be possible, to help him to find some other permanent position with the respondent or elsewhere. 13 At [55], his Honour observed: "I appreciate that the definition of 'employment' in s 4 of the Act includes 'temporary employment', but the applicant was not a temporary employee in that sense. He was a permanent employee in a particular position but was kept on as an employee of Qantas when he was unable to fulfil the duties of that position." 14 We mention this matter only because the appellant also made passing reference to it in the course of argument on appeal. His submission seemed to be that when he undertook particular work on a temporary basis, that type of work became his particular employment for the purposes of subs 15(4). Even if this were so, it would not assist his case. Each period of temporary employment was terminated either because the appellant claimed not to be able to continue with it, or because the job ceased to be available when the work in question was finished or because a relevant employee returned from leave. In each case, the appellant's employment had only been temporary or on a trial basis. We consider that his Honour's characterization of the problem at [55] accurately describes the situation. The inclusion in the definition of "employment" of "temporary employment" is of no relevance because the appellant was, in fact, a permanent employee, up to the time that his employment was terminated. 15 On appeal the appellant's case as to the nature of his "particular employment" was as follows: "(a) The Appellant's particular employment comprised the whole of the employment relationship, extending beyond work as a ramp porter to include, inter alia, clerical and administrative work. If this is correct, no question arises about his ability to perform its inherent requirements and section 15(4) is not satisfied. (b) Alternatively, the Appellant's particular employment was the employment in which he was engaged at the time of the dismissal. At that time the employment comprised clerical and administrative tasks. If this is correct, again no question arises about his ability to perform its inherent requirements and section 15(4) is not satisfied. (c) Further in the alternative, if the Appellant's particular employment was as a ramp services operator, there were a number of substantive positions for ramp services operators, the inherent requirements of which the appellant could have performed, eg, shift clerk, refueller. In this case too, section 15(4) is not satisfied." 16 In advancing his case, the appellant sought support from decisions such as Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters") and I W v City of Perth (1997) 191 CLR 1 ("I W"). In Waters at 359, Mason CJ and Gaudron J (with whom Deane J agreed) said: "However, the principle that requires that the particular provisions of the [Equal Opportunity Act 1984 (WA)] must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status. …" (footnotes omitted) 17 Similarly, in I W at 22-23, Dawson and Gaudron JJ said in relation to the Equal Opportunity Act 1984 (WA): "In construing legislation designed to protect basic human rights and dignity, the courts 'have a special responsibility to take account of and give effect to (its) purpose'. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, … should be construed as widely as their terms permit." (footnotes omitted) 18 This approach is not, however, to be applied in the abstract, as the judgment of Brennan CJ and McHugh J in I W, at [15], emphasises: "No doubt most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory." 19 The passage demonstrates that notwithstanding the need to construe legislation so as to advance its objects, nonetheless its "text and structure" must not be ignored. Even remedial legislation is not to be construed by stretching its meaning unnaturally in order to accommodate hard cases. For present purposes we have difficulty in identifying any element of ambiguity to which a liberal approach to interpretation might be applied. In this context the appellant referred particularly to the judgment of McHugh J in Qantas Airways Limited v Christie (1997-1998) 193 CLR 280 ("Christie"). His Honour said at [72] – [73]: "In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term 'a particular job' in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean 'a specific and definable job, function or task' and its 'inherent requirements' those 'required by the characteristics of the particular job'. 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. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position. In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between 'a particular position' and 'a particular job'. In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the 'job' of President if that term refers to the work done by the President." (footnotes omitted) 20 Whilst we appreciate the significance of the distinction drawn by McHugh J, we cannot see that it has any relevance for present purposes. 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 appellant was dismissed. The expression describes the actual employment which the relevant employee was required to perform pursuant to his contract of employment. Some employees may be employed to perform specific duties. Others may be employed to perform unspecified general duties, depending upon what needs to be done at a particular point in time. There will also be cases in which a person, who was originally employed to perform particular duties, will come to perform quite different duties as the result of an express or implied variation to the contract of service. In each case 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. When an employee has been employed to perform specific duties, there may be little difference between, on the one hand, his or her specific employment, described by reference to those duties and, on the other, the inherent requirements of that employment. Both specific employment and inherent requirements of that employment are primarily questions of fact. 21 In this case Heerey J determined that pursuant to the contract of employment, the appellant was obliged to work as a member of a gang performing duties on the ramp. These duties were distributed in a particular way amongst members of the gang. As a result of injury he was unable to continue performing those duties but nonetheless was retained in that position whilst he received the benefit of rehabilitation training and treatment. At no time was it agreed between him and the respondent, expressly or impliedly, that his duties would be changed, other than in the context of assigning him temporary duties as part of a rehabilitation programme. Rather it was accepted that he could not perform the duties of a porter in Ramp Services. In other words, the respondent waived its right to demand performance of them whilst the parties examined possible alternative duties. This exercise was unsuccessful. The distinction between position and job is not presently relevant. This view is, we think, supported by the decision of the High Court in X v The Commonwealth (1999) 200 CLR 177 ("X"), per McHugh J at [67], and per Gummow and Hayne JJ at [105] – [106], Gleeson CJ and Callinan J concurring. 22 We return to the appellant's argument as summarized at [15] above. Firstly, he submits that his particular employment "comprised the whole of the employment relationship, extending beyond work as a ramp porter to include, inter alia, clerical and administrative work." As we have observed, it is clear that the only permanent duties upon which he and the respondent ever agreed were those associated with his employment as a porter in Ramp Services at Melbourne Airport, as described in his Honour's findings of fact. All other employment was incidental to his attempted rehabilitation and was provided by way of trial or on a temporary basis. 23 Alternatively, it is submitted that his particular employment was that in which he was engaged at the time of his dismissal, allegedly clerical and administrative work. As we understand it, the evidence does not support this assertion. As the trial judge found, the appellant's post-injury period of employment consisted of a range of temporary assignments allocated to him as part of a rehabilitation regime. While it is true that the appellant's final period of work with Qantas was in a clerical position in AGSE, these duties were clearly assigned on a temporary basis and the assignment finished some weeks before his termination. Throughout the post-injury period, the parties were still operating pursuant to the original contract of employment under which the appellant was employed as a porter in Ramp Services at Melbourne airport. The appellant had the same status and obligations as had been created by it, although the respondent was not insisting that he perform his duties thereunder. 24 Finally, it is submitted that if the appellant's particular employment was as a Ramp Services operator, then there were a number of substantive positions for Ramp Services operators, the inherent requirements of which, it was contended, the appellant could have performed. An example was a refueller's position which had been created on a trial basis prior to the appellant's termination, although there is no reason to believe that the appellant was the only person who might have been eligible for that position. By this argument the appellant really seeks to create his own classification of employment, namely a Ramp Services operator, encompassing all positions whose duties are carried out in the vicinity of the ramp. This is inconsistent with his Honour's finding that the appellant was employed as a porter to perform a range of duties as a member of a gang, in which gang the duties rotated (see [11] above). We also suspect that such an approach would cause more problems for the appellant than it would solve. It would probably increase the range of duties which were inherent requirements of his particular employment. We consider that his Honour correctly identified the appellant's particular employment. 25 The appellant challenges two other aspects of his Honour's decision. One aspect concerns the "inherent requirements" of the appellant's particular employment for the purposes of subs 15(4). In our view, Heerey J, in identifying the appellant's specific employment, also identified those requirements. The second aspect concerns the "services or facilities that are not required by persons without the disability" mentioned in par 15(4)(b) of the Act. Heerey J considered that suggestions made by the appellant in this regard would have involved changes in the nature of his duties and that such proposals went beyond the scope of subs 15(4). We see no reason to differ from his Honour's conclusion which was, once again, a conclusion of fact, informed by the decisions of the High Court in X, particularly per Gummow and Hayne JJ at [102] and at [104] and Christie, per Gaudron J at [38]. 26 The appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Finn & Dowsett. Associate: Dated: 20 December 2002 Counsel for the Appellant: Mr H Borenstein SC Ms K Hanscombe Solicitor for the Appellant: Opie & Co Counsel for the Respondent: Mr A Cavanough QC Ms D Mortimer Solicitor for the Respondent: Minter Ellison Date of Hearing: 6 November 2002 Date of Judgment: 20 December 2002