Joyce v St George Bank Ltd [2005] FCA 916

FEDERAL COURT OF AUSTRALIA

Joyce v St George Bank Ltd [2005] FCA 916 PETER JOYCE v ST GEORGE BANK LTD NSD 1017 OF 2005 STONE J 5 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1017 OF 2005

BETWEEN: PETER JOYCE

APPLICANT

AND: ST GEORGE BANK LTD

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 5 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal from the order of the Federal Magistrate made on 1 June 2005 be granted. 2. The costs of this application be costs in the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1017 OF 2005

BETWEEN: PETER JOYCE

APPLICANT

AND: ST GEORGE BANK LTD

RESPONDENT

JUDGE: STONE J

DATE: 5 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from the decision of a Federal Magistrate made on 1 June 2005. His Honour dismissed an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act') on the basis that no reasonable cause of action was disclosed; Joyce v St George Bank Ltd [2005] FMCA 868.

Background 2 The applicant was employed by the respondent ('the Bank') for five years until his employment with the Bank was terminated on 27 October 2003. The applicant complained to the Human Rights and Equal Opportunity Commission ('Commission') alleging disability discrimination under the terms of the Disability Discrimination Act 1992 (Cth) ('DDA'). The complaint was accepted by the Commission under ss 5, 6, 15 and 122 of the DDA. 3 The Federal Magistrate summarised the applicant's complaint to the Commission at [6] of his reasons as follows: 'Mr Joyce says that he was … suspended and subsequently dismissed from his employment on 27 October 2003. The Commission treated the complaint made by Mr Joyce as one of disability discrimination as after Mr Joyce had allegedly taken sick leave on two occasions he was required to attend disciplinary interviews and subsequently the bank dismissed him on a basis that Mr Joyce asserts was linked to his taking sick leave. At this point, I should note that in his complaint form made to the Commission Mr Joyce had ticked a box stating that he had been discriminated against by reason of his age and religious belief but he had also ticked a box and added handwritten material to the form which makes clear that he was concerned about what he saw as discrimination linked to his taking sick leave. In the circumstances, it seems that the Commission properly treated the complaint as one of asserted disability discrimination.' 4 In a letter to the applicant dated 30 April 2004, a delegate of the President of the Commission stated that she was not satisfied that the applicant had been able to demonstrate that he had 'received less favourable treatment on the basis of taking sick leave' and that consequently she had terminated the applicant's complaint pursuant to s 46PH(1)(c) of the HREOC Act on the basis that the complaint was lacking in substance.