FEDERAL COURT OF AUSTRALIA Jovanovic v Tay, President of the Human Rights & Equal Opportunity Commission [2000] FCA 1789 DISABILITY DISCRIMINATION ‑ Complaint ‑ Disability Discrimination Commissioner decides not to inquire into complaint on ground that complaint lacking in substance ‑ Referral of complaint to President of Human Rights and Equal Opportunity Commission ‑ President dismisses complaint because satisfied that relates to act that is not unlawful ‑ Whether summary dismissal an error of law. Disability Discrimination Act 1992, ss 71(2)(d), 71(5), 101(1)(b) Racial Discrimination Act 1975, s 25X X v The Commonwealth (1999) 167 ALR 529 applied Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 applied DUSAN JOVANOVIC, TONY BARRESI, SILVANO COSMA, JOHN BALLOS, LAURENCE BUCHANAN, PASCHAL GRIMES and FRANK CAR v ALICE TAY, PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and QANTAS AIRWAYS LIMITED V 641 OF 1999 V 658 OF 1999 SUNDBERG J 8 DECEMBER 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 641 OF 1999 BETWEEN: DUSAN JOVANOVIC, TONY BARRESI, SILVANO COSMA, JOHN BALLOS, LAURENCE BUCHANAN, PASCHAL GRIMES and FRANK CAR APPLICANTS AND: ALICE TAY, PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT QANTAS AIRWAYS LIMITED (ACN 009 661 901) SECOND RESPONDENT JUDGE: SUNDBERG J DATE OF ORDER: 8 DECEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the first respondent in relation to each applicant's complaint be set aside. 2. Each applicant's complaint be referred back to the Disability Discrimination Commissioner in order that the inquiry into it be resumed. 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 658 OF 1999 BETWEEN: JOE NAIMO APPLICANT AND: ALICE TAY, PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT QANTAS AIRWAYS LIMITED (ACN 009 661 901) SECOND RESPONDENT JUDGE: SUNDBERG J DATE OF ORDER: 8 DECEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the first respondent be set aside. 2. The applicant's complaint be referred back to the Disability Discrimination Commissioner in order that the inquiry into it be resumed. 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 641 OF 1999 BETWEEN: DUSAN JOVANOVIC, TONY BARRESI, SILVANO COSMA, JOHN BALLOS, LAURENCE BUCHANAN, PASCHAL GRIMES and FRANK CAR APPLICANTS AND: ALICE TAY, PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT QANTAS AIRWAYS LIMITED (ACN 009 661 901) SECOND RESPONDENT IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 658 OF 1999 BETWEEN: JOE NAIMO APPLICANT AND: ALICE TAY, PRESIDENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT QANTAS AIRWAYS LIMITED (ACN 009 661 901) SECOND RESPONDENT JUDGE: SUNDBERG J DATE: 8 DECEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT THE FACTS 1 Each applicant was formerly employed by the second respondent ("Qantas"). In the course of his employment each suffered an injury as a result of which he was absent from work, from time to time. As a consequence of the injury each applicant had a reduced capacity for work and received compensation payments in respect of the injury. Qantas gave notice to each applicant that unless he was able to obtain redeployment within Qantas before the expiration of two months of the notice, his employment would be terminated. None of the applicants was able to do so and the employment of each of them was terminated. Each applicant lodged a complaint with the Commissioner of Equal Opportunity, Victoria alleging that he had been discriminated against under the Disability Discrimination Act 1992 ("the Act"). 2 In the case of each applicant, the delegate of the Disability Discrimination Commissioner determined pursuant to s 71(2)(d) of the Act not to continue to enquire into his complaint on the ground that it was "lacking in substance". A request was made on behalf of each applicant that his complaint be referred to the first respondent ("the President") under s 71(5). On 20 October 1999 the President dismissed the complaint of each applicant in proceeding V641 of 1999 pursuant to s 101(1)(b) of the Act on the ground that she was "satisfied that each of the complaints relate to an act that is not unlawful under a provision of Part 2 of the Act. Each of the complainants conceded that they were unable to return to their pre‑accident duties at the time that their positions were terminated by Qantas. Accordingly, I am satisfied that their termination was not unlawful since they were unable to carry out the inherent requirements of their particular employment (s 15(4) of the Act." On 9 November 1999 the first respondent made a decision in similar terms in relation to the applicant in V658 of 1999. The applicants in the two proceedings seek review of the first respondent's decision under the Administrative Decisions (Judicial Review) Act 1977. The applications were heard together. THE LEGISLATION 3 Division 1 of Part 2 of the Act, which consists of ss 15 to 21, deals with "Discrimination in work". Section 15(2) is in part as follows: "It is unlawful for an employer … to discriminate against an employee on the ground of the employee's disability …: … (c) by dismissing the employee …." Sub‑section (4) provides that sub‑s (2)(c) does 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." 4 Section 71(2), under which the delegate decided not to continue to inquire into the complaint, provides: "The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if: … (d) in a case where a complaint has been made to the Commission in relation to the act ‑ the Commissioner thinks that the complaint was trivial, vexatious, misconceived or lacking in substance." Section 101(1), under which the President dismissed the complaints, provides: "If a complaint is referred to the President under subsection 71(5), the President may, without holding an inquiry, dismiss the complaint if: … (b) the President is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2 …." GROUNDS OF REVIEW 5 The first ground of review is that the President made an error of law in failing to take into account par (b) of s 15(4). Neither in her reasons for decision set out in par 2 nor in her covering letters to the applicants' solicitors did the President set out or refer to s 15(4)(b), though in the letter she set out s 15(4)(a). In X v The Commonwealth (1999) 167 ALR 529 at 538‑539 McHugh J said: "Subject to s 15(4)(b), s 15(4)(a) permits discrimination against an employee who, without aid, cannot meet the requirements of the particular employment. But inability to carry out the inherent requirements of the employment without assistance does not make discrimination in employment lawful. It is a mistake to read s 15(4)(a) in isolation from s 15(4)(b). The presence of the latter paragraph shows that s 15(4)(a) is not a discrete defence which ipso facto prevents discrimination being unlawful. Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide." Gummow and Hayne JJ, with whom Gleeson CJ agreed, agreed (at 553) with McHugh J that "it is a mistake to read s 15(4)(a) in isolation from s 15(4)(b). It follows that while the place of employment may be important, most, if not all, cases will require consideration not only of s 15(4)(a) but also of s 15(4)(b) with its reference to provision of services or facilities not required by persons without the disability." 6 The President dismissed the complaints under s 101(1)(b) because she was satisfied that the acts complained of were not unlawful under s 15(2)(c) because the cases came within s 15(4)(a). Like the delegate under s 71(2)(d) the President could have dismissed the complaints under s 101(1)(a) on the ground that they were lacking in substance. However, whether the President acts under s 101(1)(a) or (b), she is dismissing a complaint without holding an inquiry. She is exercising a power of summary dismissal, which is only exercisable in clear cases. Cf Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 466‑468, a decision on s 25X of the Racial Discrimination Act 1975 which is in similar terms to s 71(2)(d) and s 101(1)(a) of the Act. 7 Having regard to the decision in X v The Commonwealth the President erred in law in dismissing the complaints under s 101(1)(b) simply because, in her view, the case came within s 15(4)(a). It was wrong to consider par (a) in isolation. The defence provided by s 15(4) is not made out simply because the elements of par (a) are satisfied. For Qantas it was submitted that it was not necessary for the President to consider par (b) because the applicants did not claim that they would be able to carry out the inherent requirements of their pre‑accident duties if provided with additional services or facilities. Nor was there any evidence or other material to support such a claim. As to the first point, s 15(4)(b) is an element of a defence available to Qantas. It was not a matter to be raised and answered by the applicants. As to the second point, it is not surprising that there was no evidence or other material on the point. The matter was disposed of summarily, without an inquiry at which each party would be given an opportunity to call or give evidence and examine or cross‑examine witnesses (s 83(1)). 8 Section 99 of the Act provides: "In determining whether an act is unlawful under a provision of Part 2, the Commission is not required to have regard to any exception or exemption provided for in that Part unless there is evidence before the Commission that the exception or exemption is or may be applicable in relation to that act." The context in which s 99 appears shows that it is concerned with the Commission's obligations when conducting an inquiry. See ss 94, 98 and 100. As part of an inquiry the Commission can be expected to receive evidence. See ss 83, 87, 94, 95 and 98. On the other hand, the President will not have received evidence because there will not have been an inquiry. Thus, there is no reason to think that s 99 should apply to the President. First, the President is not "the Commission". Secondly, there is no reason to believe that the legislature would have wished a provision such as s 99 to apply to the President when acting under s 101. Putting the matter another way, the inference to be drawn from s 99, which applies to the Commission when holding an inquiry, is that the section does not apply to the President when acting under s 101. I should record that s 99 was not relied on by the respondent. 9 The proper course was for the President to have referred the complaints to the Commissioner under s 101(2) for the Commissioner to continue to inquire under s 71 into the acts the subject of the complaints, in particular to hear any evidence directed to the issue with which s 15(4)(b) deals. Other grounds of review were relied on, but I accept the submission of the applicant's counsel that if the first ground is upheld it is not necessary to deal with them. CONCLUSION 10 In the case of each applicant I will order that the President's decision be set aside and that the complaint be referred back to the Disability Discrimination Commissioner in order that the inquiry under s 71 of the Act be resumed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 8 December 2000 Counsel for the Applicants: K P Hanscombe Solicitors for the Applicants: McMullin Coate & Co Counsel for the Second Respondents: D Chan Solicitors for the Second Respondents: Minter Ellison Date of Hearing: 25 October 2000 Date of Judgment: 8 December 2000