State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120

FEDERAL COURT OF AUSTRALIA

State of New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120 Appeal from: Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542

File number: NSD 755 of 2023

Judgment of: BROMWICH, RAPER AND SHARIFF JJ

Date of judgment: 12 September 2024

Catchwords: HUMAN RIGHTS – disability discrimination – appeal – where the respondent was a trainee train driver on probation – where the respondent had Asperger's Syndrome and ADHD and took medication as required – where the appellant terminated her employment purportedly on the basis that she had been dishonest in an application form and pre-employment medical questionnaire – whether, in identifying the hypothetical comparator for the purpose of s 5(1) of the Disability Discrimination Act 1992 (Cth) (DDA) and the not "materially different" circumstances, the primary judge took into account irrelevant considerations or failed to take into account relevant considerations including the subjective intention of the person who purportedly made the decision to terminate the respondent's employment – whether the primary judge erred in finding that the appellant had directly discriminated against the respondent because of her actual or imputed disabilities in contravention of s 15(2) of the DDA by both keeping her out of the driver training course and dismissing her from her employment – whether the primary judge erred in his findings as to causation – whether the primary judge erred in finding that the appellant's request of the respondent that she provide a medical note from her treating physician contravened s 30 of the DDA – appeal allowed in part

Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 5(1), 10, 15(2), 15(2)(c), 15(2)(d), 30, 30(1), 30(2), 30(2)(a), 30(2)(b)(i), 30(2)(b)(ii), 30(3), 35(2), 123, 123(1) Fair Work Act 2009 (Cth) Pt 3-1, s 361 Federal Court of Australia Act 1976 (Cth) ss 24A(1A), 53A Rail Safety National Law 2012 (NSW) ss 4(1), 52(2)(b)(i), 114 Rail Safety National Law Regulations 2012 (NSW) reg 27 Transport Administration Act 1988 (NSW) s 3E(1); Pt 3B Division 4, ss 36H(1), 36K(1); Sch 1, item 1(i) Federal Court Rules 2011 (Cth) r 35.11