Barghouthi v Transfield Pty Limited [2002] FCA 666

FEDERAL COURT OF AUSTRALIA

Barghouthi v Transfield Pty Limited [2002] FCA 666 HUMAN RIGHTS – disability discrimination – appeal from decision of Federal Magistrate – whether Federal Court has jurisdiction to consider discrimination claim where a different claim based on the same factual circumstances brought by the same person was dismissed by NSW Industrial Relations Tribunal on jurisdictional grounds – whether Magistrate made an error of law by finding the appellant was not dismissed from employment – whether constructive dismissal where employer sent employee a letter purporting to confirm his verbal resignation although he had not resigned – whether dismissal amounted to unlawful disability discrimination – appeal allowed. Disability Discrimination Act 1992 (Cth) ss 5, 13(4), 15(4) Human Rights and Equal Opportunity Act 1986 (Cth) s 46PO Industrial Relations Act 1996 (NSW) s 169 Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 approved Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129 approved Transport Workers' Union of Australia v Eastern Goldfields Transport Board (1989) WAIG 1895 cited Hiser v Hardex Co-operative Ltd (unreported, Supreme Court of NSW, Santow J, 14 December 1993) cited Cosma v Qantas Airways Limited [2002] FCA 640 distinguished B Creighton & A Stewart, Labour Law: an introduction 3rd ed 2000 G McCarry, "Constructive Dismissal of Employees in Australia" (1994) 68 Australian Law Journal 494 RAMZI BARGHOUTHI v TRANSFIELD PTY LIMITED N 1584 OF 2001 HILL J 5 JUNE 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1584 OF 2001

BETWEEN: RAMZI BARGHOUTHI

APPELLANT

AND: TRANSFIELD PTY LIMITED

RESPONDENT

JUDGE: HILL J