FEDERAL COURT OF AUSTRALIA

Cosma v Qantas Airways Limited [2002] FCA 640

ANTI-DISCRIMINATION – application in respect of disability discrimination – applicant injured in 1991 while working as porter – subsequent rehabilitation program – applicant engaged in clerical and other light duties – employment terminated in 1997 on the ground of disability –– whether “particular employment” was employment as porter – what were “inherent requirements” of applicant’s particular employment whether applicant unable to carry out “inherent requirements of the particular employment” – whether “services” or “facilities” required – assessment of compensation

WORDS AND PHRASES – “particular employment”, “inherent requirements”, “services”, “facilities”

Disability Discrimination Act 1992 (Cth)  s 15(4)

Human Rights and Equal Opportunity Act 1986 (Cth)  s 46PO(4)(d)

X v Commonwealth  (1999) 200 CLR 177 at [67] and [105] – [106], [102] applied

Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [1], [34], [36], [38] applied

SILVANO COSMA v QANTAS AIRWAYS LIMITED

V118 OF 2001

HEEREY J

21 MAY 2002

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.         The applicant pay the respondent’s costs including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant Silvano Cosma claims that in July 1997 he was dismissed by his employer the respondent Qantas Airways Limited on the ground of his disability contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the Act).  That provision relevantly is 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.”

2                     Qantas admits that it dismissed the applicant on the ground of a disability which resulted from a shoulder injury sustained in 1991.  However, it relies on s 15(4) of the Act which provides such discrimination is not unlawful if it is

“… 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.”

3                     In relation to “unjustifiable hardship”, s 11 of the Act provides that

“… 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;

(b)       the effect of the disability of a person concerned;

(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 [Human Rights and Equal Opportunity] Commission under s 64.”

4                     Counsel for the parties have agreed on questions for determination.  They are as follows:

1.         What was the applicant’s particular employment at the time of the discrimination?

2.         What were the inherent requirements of that particular employment?

3.         Was the applicant unable, because of his disability, to carry out the inherent requirements of his particular employment?

4.         If the answer to 3 is yes, what:

            (a)        services, or

            (b)        facilities

            not required by persons without the disability would the applicant have required to carry out those inherent requirements?

5.         Would the provision of such services or facilities impose an unjustifiable hardship on Qantas?

5                     The parties have requested that even if I find against the applicant on liability I should assess the damages by way of compensation that would otherwise be payable under s 46PO(4)(d) of the Human Rights and Equal Opportunity Act 1986 (Cth).

Contract of employment

6                     The applicant commenced employment in 1988 with Australian Airlines Limited which in 1992 was taken over by Qantas.  The parties accepted that the change of ownership of the business is not relevant for present purposes. 

7                     The applicant, then aged 31, lodged an employment application form with Australian Airlines dated 5 December 1988.  In a supplementary form of the same date there appears inter alia the question “Your department/location” and the written words “Porter in ramp services”.  Also attached to the form is a statement signed by the applicant in which he agrees to accept the position offered and to abide by the terms and conditions of employment “referred to in this letter”.

8                     There was in evidence a letter dated 23 November 1988 from the Employee Relations Officer Victoria for Australian Airlines to the applicant. There was no explanation as to why this letter of acceptance pre-dated the application, but nothing turns on this.  The letter commences:

“I refer to your application and interview for the position as a part-time relief porter, in Ramp Services with Australian Airlines and have pleasure in advising that you have been successful in this application.”

9                     The letter gives a starting place and time and advises of the commencing wage and that the appointment is subject to satisfactory completion of a probationary period of six months.  The general terms and conditions of employment are to be as prescribed by the Transport Workers Award.  The letter also states:

“It is a condition of employment that you comply with all lawful directions of the company and that you use all the appropriate protective clothing and equipment and keep the workplace and equipment in a clean and safe condition.”

10                  The only other documentary evidence relating to the applicant’s contract of employment is a printout of the Qantas Human Resources Department headed “Employee job history”.  This records his appointment on 22 December 1988 and termination on 11 July 1997.  It also notes his “jobclass” as  “Melbourne Airport Ramp SVS Operator”.

Work on ramp services

11                  After his engagement the applicant commenced work in the Ramp Services Department at Melbourne Airport.  His probationary period was completed satisfactorily and he became a permanent employee.

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 organises the work for the gang. 

13                  During the course of any one shift a gang may have to work on a wide-bodied aircraft such as a Boeing 767 or 747 or a narrow-bodied aircraft such as a Boeing 737.

14                  With wide-bodied aircraft, baggage and freight are placed in containers weighing some 1.2 tonnes and 4.5 tonnes respectively when loaded.  The containers are towed on dollies by a tug vehicle out to the aircraft.  The container is swivelled through 90 degrees on to a mechanical hoist (also referred to as a pallet loader).  The driver of the tug has to use some force to achieve this movement.  The container is then lifted by the hoist up to the level of the floe or of the cargo locker (hold).  The container is then moved mechanically into the locker.  The physical aspects of this work were described by Mr John Steinfort, who was Ramp Services Manager for Australian Airlines and later Qantas from 1990 to 1996, as follows: 

“…even though the operation is mechanised on the pallet loader and within the aircraft hold, there is a lot of physical intervention with the loading.  The containers that are loaded onto the aircraft have a pretty rough life.  They tend to have a base that’s damaged in some way or warped and so they often don’t align themselves correctly on the pallet loaders or they’ll jam and similar things happen within the hold of the aircraft as well.”

When problems like this occur gang members need to be able to get inside the aircraft and manoeuvre the containers themselves.

15                  When working on wide-bodied aircraft the leading hand, who has a copy of the load instruction form, provides general assistance around the aircraft as well as direction.  There would then be two members working as pallet loader operators, two as drivers and one in the bulk hold. 

16                  With narrow-bodied aircraft, baggage and freight are not containerised.  They have to be loaded and unloaded piece by piece.  There are two holds.  One is about six metres long and is substantially longer than the other.  They are only about a metre high.  Two employees would be in one hold and one in the other.  In the longer hold, one would be at the doorway and one at the end of the hold stacking.  One of the gang members who had an appropriate licence would be responsible for driving the push back vehicle.  These arrangements could vary depending on the load of the aircraft.

17                  An important aspect of the work is rotation of the various tasks between gang members.  This is in the interest 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.

Applicant’s injury

22                  On 13 September 1991 the applicant injured his right shoulder when lifting a heavy bag onto an aircraft.  He returned to work on 2 November but aggravated the injury.  He was absent from work from 28 January to 14 February 1992.  On 5 April 1992 his doctor declared him unfit for all work and on 7 April he underwent surgery on the shoulder. 

Qantas rehabilitation program

23                  At all times during the applicant’s employment Qantas had a rehabilitation program.  By the mid 1990s it had become somewhat more structured but at all material times it involved essentially the following stages.  First, the employee would be provided with assistance aimed at returning him or her to the pre-injury employment position.  This included rehabilitation assessments which involved liaison with the employee and treating medical practitioners.  The employee would be provided with alternative or modified duties in line with physical capacity, the aim being to return him or her to the pre-injury position in a graduated way.  Secondly, if after a period of about twelve months from the date of injury medical advice indicated that the employee was unable to return to the pre-injury position in the foreseeable future, the employee would be provided with vocational assistance aimed at providing him or her with the necessary skills to find alternative work within Qantas or, failing that, elsewhere.  Thirdly, if such a permanent alternative position had not been obtained, the employee would be given written notice of termination on a specified future date.

24                  An employee undergoing this program would be assigned to a Rehabilitation Case Manager.  Those responsible for the applicant were Mr Dermot Moody from 1992 to 1995, Mr Barry McDonnell from mid 1995 to mid 1996 and Ms Leanne Jackson from June 1996.

25                  These three persons gave evidence and were cross-examined.  I formed the impression that they performed their duties in a thoughtful and conscientious way and did the best they could to assist the applicant. For his part, the applicant was a good employee who enjoyed working at Qantas and wanted to stay there as long as he could.

26                  In relation to permanent alternative employment, 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.

Applicant’s post injury work history

27                  Between 14 February 1992 and 5 April 1992 the applicant performed light duties.  After his operation on 7 April he recommenced work on 26 May 1992 in the mail room.  His duties included sorting, collecting, carrying and delivering mail to various departments within Qantas.  Shortly thereafter he was allocated other duties such as coupon reconciliation.  He was “self paced” meaning that there were no time requirements for his duties and he could rest whenever he wanted.  By early June the applicant was also doing some data entry work. 

28                  On 18 June 1992 Mr Moody agreed with the applicant that he would in the near future attempt priority driving duties. This involved driving a vehicle to and from aircraft to pick up and deliver priority baggage.  It was agreed at this time that he was showing good progress in his physical rehabilitation and that he should attempt some interim manual handling.  However, before these proposals could be put into effect the applicant went on recreational leave from 25 July to 5 September 1992.

29                  On return from leave Mr Moody agreed with the applicant and his treating medical practitioner Dr Harris that the applicant should engage in a graduated return to his original duties.  It was agreed that for one week he would perform two hours of his original duties and the rest of the time alternative duties and that this would be progressively increased to four hours.  However, by the end of September the applicant stated that he was having trouble lifting baggage and was experiencing pain in his right shoulder.  In October the injury was re-aggravated.  Dr Harris certified that he was totally unfit for his normal duties and should be retrained for administrative duties.  Mr Moody was surprised at this as he was then of the view that the applicant was close to a resumption of full normal duties.  The applicant was absent from work from 29 October 1992 to 26 February 1993.

30                  On his return the applicant attended a meeting with Mr Moody and other Qantas officers.  It was agreed that the applicant would recommence the following day those mail room duties he had previously been performing.  There was also discussion of the possibility of there being cabin duties available in the future.  This work, although physical, did not involve the heavy and repetitious lifting involved in work in the ramp area.  The applicant expressed a desire to return to his pre-injury duties eventually.  It was agreed that this would need to be assessed at a later date depending on medical opinion. 

31                  On 10 March 1993 the applicant told Mr Moody that his medical advice was that he should not lift more than 15 kg and not do any repetitive lifting.  He said that he was keen to attempt a return to his porter duties soon.  By 22 April 1993 the applicant was doing an hour per day in the baggage room lifting light luggage.  He was able to determine what items were within his restrictions.  For the rest of the time he was working in the mail room performing basic mail sorting and delivery duties.  Later in May, after discussion with Mr Moody and Dr Harris, the applicant commenced performing additional equipment inspection duties in the Ramp Services Department.  These duties involved checking and cleaning equipment, refuelling, transporting damaged equipment and cleaning vehicle cabins and washing vehicle exteriors.  By the end of May the applicant was working one hour in the baggage room in the morning, two hours performing equipment inspection duties and then two hours in the baggage room in the afternoon.  The rest of his day he filled in with existing alternative duties such as escorting people on the tarmac.  He reported to Mr Moody that he was experiencing some difficulty with aspects of the equipment inspection duties, including reaching behind the driver’s seat of the baggage towing vehicle to unhook equipment and also reaching the rubbish bin on the motor and washing down the vehicle equipment.

32                  In June 1993 a clerical vacancy became available in the Heavy Maintenance Department as a result of an employee being injured in an accident.  Mr Moody discussed this position with the applicant who was keen to do the work.  He was engaged full time in this work until March 1994.  During this period the applicant commenced assisting Mr Robert Ringholt, the Communications Manager, who needed temporary assistance in auditing communications equipment following the merger of Australian Airlines and Qantas.  The applicant worked for Mr Ringholt for the rest of 1994.  This was work he found interesting and enjoyable.  He was also performing various alternative general office duties including instructing staff on stationery ordering procedures and emptying bar safes. 

33                  In a report dated 12 December 1994 Dr Peter Colville, a physician, expressed the view that the applicant was capable of performing more than just clerical duties but that use of his right arm for any activity above shoulder height would cause symptoms.  Dr Colville thought the applicant would not be expected to have any difficulty in handling heavy articles with his left arm or using both arms to carry or lift with his upper hands beside his body.  He would have difficulty stacking, other than with the left hand alone, above his head and presumably in aircraft holds or containers.  He would have no difficulty as a driver.  He would be expected to be able to handle baggage in a normal manner with his left arm whenever that was clearly a one arm activity.  In the light of that report Mr Moody considered it might be unlikely that the applicant would be able to return to his pre-injury ramp duties. 

34                  In February 1995 the applicant had a month’s leave due to stress. 

35                  On 28 February 1995 Mr Moody met with the applicant and a Transport Workers Union delegate.  They discussed Dr Colville’s report and the fact that it, along with some other reports, differed from the applicant’s treating practitioner’s opinion that he was only fit for clerical duties.  It was agreed that Qantas might direct the applicant to return to physical duties at a later date based on Dr Colville’s report in duties which did not involve overhead lifting and stacking.  Mr Moody pointed out that such duties might be available in cabin dressing (i.e. cleaning).  At the time Mr Moody was optimistic that it might be possible for the applicant to avoid the overhead work involved in cabin dressing by having other members in the gang perform those tasks.  At the meeting the applicant mentioned that he was being harassed by TWU members and Australian Services Union members about the fact that he was performing clerical work which fell within the coverage of the latter Union.  Mr Moody told the applicant that there was a clear and well known practice at Qantas, to which the unions had agreed, that there were to be no demarcation issues in relation to employees in rehabilitation programs. 

36                  In March 1995 the applicant commenced assisting with the collection of statistics in the baggage room.

37                  In July 1995 Mr McDonnell took over as the applicant’s Rehabilitation Case Manager.  On 6 July 1995 Mr McDonnell spoke to the applicant and discussed the possibility of his returning to full time alternative duties in cabin dressing.  Subsequently the applicant did attempt these duties but they were found unsuitable.  He continued clerical duties in the baggage room for a period but in mid September 1995 he was unable to continue these duties because draughts in the room were causing pain in his right shoulder.

38                   By a letter dated 13 October 1995 Mr McDonnell offered the applicant what were described as “alternative duties based on your current medical restrictions”.  There were, first, office duties in the baggage room, including assisting the senior ramp services officer with incoming telephone calls, paper work, correspondence, rostering, locating mishandled baggage, following up messages, liaising between supervisory and ramp staff and organising the loading of wide-bodied aircraft.  The work was said to be “primarily sedentary in nature and … self paced”.  Secondly, the duties were to drive the car park shuttle bus from airport security to the staff car park and return, a round trip of approximately ten minutes.  It was noted that during the trip it was necessary to reach out of the window at two points to place a card into the automatic gate system.  This required minimal extension reach.  The applicant accepted this offer after it was amended to state that driving be avoided in the early morning so as to avoid cold conditions. After a period of performing the shuttle bus duties the applicant complained that he experienced pain winding the window up and down and from the cold air that came in. 

39                  On 27 November 1995 McDonnell met with the applicant and offered him a twelve month position as a line maintenance clerk and suggested he should speak to his doctor.  The applicant said that he was interested in that position but that he would need retraining as advised by his “legal people”.  He said that his doctors had told him he would never work in the Ramp Services Department again, that it was now not possible for him to work in modified duties in ramp services and that he should be given a position in training or customer services.  Mr McDonnell said that as far as he was aware the medical opinion was divided and Dr Colville’s view at the very least indicated that the applicant would be able to return to physical duties and not just clerical administrative work.  Mr McDonnell also said that modified duties were still available for him in ramp services. 

40                  Subsequently the applicant declined the line maintenance clerk position.  He said the roster was unsuitable and the overtime requirements would impinge on his medical appointments.  The applicant continued in his alternative duties in the office and the baggage room and carried out some driving duties. 

41                  By a letter dated 19 March 1996 Mr McDonnell wrote to the applicant as follows:

“In reference to your ongoing rehabilitation, the following alternative duties have recently been identified and are now offered to you in addition to your existing alternative duties. 

Duties

Input of sick leave and absentee data in the domestic room services department

–        Requires the use of a computer and associated equipment ie mouse, printer etc and basic keyboard skills

–        Data is provided on daily absentee sheets, these duties would require you to load this information into a spreadsheet in the computer.” 

42                  It is not clear whether the applicant accepted this offer.  However, he did accept an offer in a letter of 17 April 1996 of “auditing of ramp plant, equipment, computer hardware and other assets”.

43                  In July 1996 Ms Jackson took over as the applicant’s Rehabilitation Case Manager.  About this time she met with Mr Moody and Mr McDonnell to discuss the applicant’s rehabilitation situation.  They agreed that it appeared because of the longevity of the applicant’s attempted return to work and his continued desire to be placed in a permanent clerical position it was unlikely that he would return to his pre-injury position in the foreseeable future and that they should seek approval from Comcare for him to participate in a suitable training or vocational program to assist him to find a suitable alternative position.

44                  In about September 1996 the applicant accepted a temporary clerical position in Aircraft Ground Support Equipment (AGSE) replacing a worker who had taken maternity leave.  He enjoyed this work and remained in it until the employee returned from maternity leave in about May or June 1997.

45                  In late 1996 and early 1997 Ms Jackson had a number of interviews with the applicant.  On 12 February 1997 Ms Jackson and Mr Moody signed a letter addressed to the applicant which inter alia stated:

“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.”

46                  The letter then discussed details of the program. In early 1997 the applicant participated in the program.  It was conducted by a consultant in conjunction with Qantas and lasted for about six to eight weeks with one or two sessions a week including such matters as the preparation of resumés and application letters and techniques for job interviews.   Mr Moody and Ms Jackson made enquiries within Qantas to see whether they had any permanent vacancies available.  Unfortunately there appeared to be very few.

47                  On 17 April 1997 Ms Jackson met with the applicant.  He asked whether it would be possible for him to stay on in AGSE.  She said that there was no permanent vacancy available.  She said that Qantas was unable to continue to indefinitely sustain him in alternative duties.  She mentioned the ultimate possibility of termination of his employment.  Further discussions took place in May and June.

Termination

48                  On 8 May 1997 Mr Alan Bourke, Qantas Employee Relations Manager for Victoria and Tasmania, wrote to the applicant stating inter alia:

“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 months.

At the conclusion of this period and if your current medical certificate still prevails, and if no appropriate redeployment of opportunities are available, we have no alternative but to terminate your services.

            …

The effective date will be 11 July 1997.

There will continue to be opportunities for you to participate in redeployment activities where appropriate for the two months period.”

49                  Employment was duly terminated on 11 July 1997.

Question 1: What was the applicant’s particular employment at the time of the discrimination? 

50                  It is common ground that the relevant time is the date of termination, that is 11 July 1997.  At some unspecified time prior to this the applicant was, in his words, “sent home”.  It seems the last work he did in his employment with Qantas was the clerical work in AGSE.

51                  The context of s 15(4), involving as it does physical disability and its effect on employment, suggests that the expression “particular employment” is not concerned merely with employment in the sense of the status of being an employee.  The precise content of the particular employment has to be established:  X v Commonwealth  (1999) 200 CLR 177 at [67] per McHugh J and at [105] – [106] per Gummow and Hayne JJ.

52                  Counsel for the applicant contended that the employment of the applicant by Qantas “comprised the whole of the relationship which existed between him and Qantas until termination”.  Although his original “department/location” was “porter in ramp services” he had for at least five years prior to termination not done the duties of a ramp services porter, nor was he located at the ramp except for short periods during which he performed alternate or modified duties.  Counsel pointed out, correctly in my view, that the various tasks the applicant performed over that period was real work which was of value to Qantas.  It was done pursuant to lawful directions as provided for in the contract of employment.  Alternatively, counsel submitted the “particular employment” was the applicant’s employment at the time of the termination, that is to say clerical duties in AGSE.  Counsel pointed out that Qantas witnesses accepted that if a suitable job happened to become available even during the applicant’s notice period he could have taken it up. 

53                  The contention of Qantas was that the “particular employment” was employment in the position of an airline services operator working on the ramp at Melbourne Airport.  This could also be described as “porter in ramp services”, although the final submissions of Qantas did not use that expression.  In the ultimate analysis, the particular label used is not determinative; what counts are the nature and characteristics of the position which is identified as the “particular employment”. Qantas argues that, in the circumstances of this case, the applicant’s “particular employment” was that which he was engaged in at the time of his injury in 1991.  The essential elements of that employment were work (i) as a porter, that is a person engaged in the lifting, carrying, manhandling and storage of baggage and cargo, (ii) in a gang operating in the way described above (iii) at the ramp at Melbourne Airport.

54                  In my view the contention of Qantas is correct.  The need for specificity in the identification of the “particular employment” referred to above cannot accommodate a finding that the particular employment was the “whole of the relationship”.  In 1988 the applicant was employed in a particular position.  He worked in that position until his injury.  The remaining period of his employment, albeit substantial in time, consisted of various temporary assignments during a rehabilitation regime.  The object of this regime was to return him to his pre-accident position or, if that proved to be not possible, to help him to find some other permanent position inside or outside Qantas.

55                  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. 

56                  Although it might seem at first blush a paradox, to accept the Qantas case is to give the Act a beneficial interpretation.  If an employer has to decide whether or not to terminate the employment of an employee who has become disabled from carrying out the duties of a particular position, it is obviously in the interests of the employee that, rather than terminate him or her immediately, the employer takes every possible step towards rehabilitation so that the employee might eventually return to the previous position or alternatively find a new position with the employer or elsewhere.  It would be a disincentive to such a course, and a positive encouragement to immediate termination, if some alternative work engaged in the course of rehabilitation (as in the present case) would constitute “the particular employment” with the result that any subsequent termination would render the employer liable for compensation.

57                  In debate on this proposition, counsel for the applicant pointed out that there are statutory obligations on an employer to engage in rehabilitation, as for example in Pt VI of the Accident Compensation Act 1985 (Vic).  Even so, it is no bad thing to adopt a construction of one law which will make compliance with other laws more likely.  But in any case, such rehabilitation obligations would only apply to work related disabilities.  It is purely fortuitous in the present case that the applicant’s disability was caused by workplace injury.  The Act applies to all disability, irrespective of cause.

58                  It is theoretically conceivable that in a large organisation like Qantas, where at any one time there will be employees absent for various reasons, that there might be employees whose permanent role is to fill in for absent employees from time to time.  Such an employee would be like the emergency teacher in the example given by Gummow and Hayne JJ in the X Case at [106].  But this was not in fact the case with the applicant.  His “particular employment” cannot be characterised in this way.  From the time of his injury until termination he remained in a rehabilitation regime.  That was inconsistent with his having a new, permanent “particular employment” of a different nature.  There was never an occasion when he was told “Your rehabilitation is now finished; this is your new permanent job.”

59                  I would answer Question 1: “Porter in ramp services at Melbourne Airport”.

Question 2:  What were the inherent requirements of that particular employment?

60                  The question whether a requirement is inherent in a particular employment must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissably discriminates against the employee, by reference to that organisation:  Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [1] per Brennan CJ.  An inherent requirement is something that is essential to the position in question: ibid at [34].  As Gaudron J said in Christie at [36]:

“A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.” 

61                  Qantas submitted that the inherent requirements of the applicant’s particular employment were:

(a)        that he undertake, as a member of a team of similar employees, the demanding physical work of unloading and loading baggage and freight carried on passenger aircraft operating on a schedule out of Melbourne Airport;

(b)       that he participate in rotation of tasks within the gang, so as to share the exposure to the heavier and lighter aspects of those tasks;

(c)        that he do so in a setting whether the gang:

            (i)         worked on different types of planes;

            (ii)        worked outdoors in all weathers;

(iii)       worked to a tight schedule, under acute time pressures;

(iv)                   performed physical activities ranging from those which to a person used to hard manual work would seem relatively light (such as driving, hooking up dollies, emptying septic tanks) to activities that even those well used to physical labour characterise as intense and demanding (such as working in confined holds of aircraft, moving heavy baggage, pushing heavy containers); and

(v)        was available to be deployed to meet any contingency, including arrival of aircraft of different types than those that had been expected, late arrival of aircraft and substitution of aircraft due to unserviceability.

62                  There is ample evidence in support of that submission and I find accordingly.

63                  It was submitted for the applicant that the only inherent requirement identified consistently by all witnesses was the manual handling of baggage.  But this, it was said, was not an inherent requirement of work as a ramp services operator because there were other jobs available within that classification, for example the work of refuellers, international aircraft push back drivers and shift clerks in the international crewing area which did not require the manual handling of baggage.  Reference was also made to an example of a newly created job of vehicle refueller which became available in early 1997.  Although advertised within Qantas, apparently the applicant did not become aware of it. 

64                  However, whether other and different positions might have been available, they would not have been the “particular employment” of the applicant.

65                  I answer this question: The requirements set out in [61] above.

Question 3:  Was the applicant unable, because of his disability, to carry out the inherent requirements of his particular employment?

66                  There was really no dispute as to this.  The applicant himself said that he could not have returned to his pre-injury duties as they stood and that was the assessment of Ms Jackson at the time of termination.  I therefore answer this question: Yes.

Question 4.  If the answer to 3 is yes, what

(a)   services or

(b) facilities

not required for persons without the disability would the applicant have required to carry out these inherent requirements?

67                  Counsel for the applicant submitted that despite the statutory obligation to carry out a risk assessment of the tasks involved and to devise methods of reducing those risks, Qantas never performed any systematic or comprehensive review of the tasks required to be done, the possible methods to do them, or how other work could have been divided up and carried out.  Some specific suggestions put on behalf of the applicant were establishing a gang dedicated to wide bodied aircraft, thus avoiding the need to work in confined holds, or creating a dedicated position of hoist operator.

68                  However, this submission is based on a misconception of s 15(4)(b).  The provision does not require the employer to alter the nature of the particular employment or its inherent requirements.  Rather it is a question of overcoming an employee’s inability, by reason of disability, to perform such work.  This is to be done by provision of assistance in the form of “services”, such as providing a person to read documents for a blind employee, or “facilities” such as physical adjustment like a wheel chair ramp.  The “services” or “facilities” are external to the “particular employment” which remains the same.  As Gummow and Hayne JJ said in the X Case at [102]:

“But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”  (Emphasis in original)

69                  The position is illustrated by Christie where the issue was whether Qantas discriminated against Mr Christie by terminating his employment as a Boeing 747 pilot on his attaining the age of sixty on the ground that many countries excluded aircraft flown by pilots who had attained that age.  Gaudron J said at [38]:

“If, notwithstanding the limited destinations to which he can now fly, Mr Christie can comply with the Qantas roster system, his position will be essentially the same as that previously occupied by him.  However, it will not be the same if Qantas exempts him from the general roster requirements, for that would transform a position no different from that of any other B747-400 captain into a special position for him.”

70                  Since the applicant did not identify any services or facilities which might fall within s 15(4)(b), as properly understood, the answer to this question is: None.

Question 5:  Would the provision of such service or facilities impose an unjustifiable hardship on Qantas?

71                  It is not necessary to answer this question.

Compensation

72                  The applicant obtained casual employment as a security officer with National Security Personnel about three years ago.  This work became full time on 15 December 2001.  That is the only work he has had since termination by Qantas.  He underwent an Information Technology Certificate course at Collingwood TAFE but did not complete it.  He did complete a First Aid Certificate course and a Security Officers course.  He is now 44 and has never been married.  He achieved Leaving Certificate standard and has technical qualifications in electrical fitting.  Prior to joining Australian Airlines he had worked in that field and also as a self-employed courier driver.

73                  He said in evidence that as the result of the termination he lost a great deal of self confidence and felt totally humiliated.  He “suffered from insomnia to a major level”.  His injury itself flared up.  He withdrew into himself and, for example, rejected offers of his parents and family to celebrate his fortieth birthday.  He used to play golf and squash regularly but all that “just went out the door”. 

74                  The applicant’s sister Mrs Mary Dawson gave evidence which provided some corroboration.  He was “really upset” over the termination.  Prior to that he would see Mrs Dawson and her family once or twice a week at her place or their mother’s place.  The family was reasonably friendly and close knit.  The applicant’s relationship with her children was “really good”.  After the termination he “started withdrawing himself”.  He would make excuses for not joining in social activities.  However, the applicant had gone away to Darwin for a holiday about eighteen months ago and since his return he has started “coming back to seeing us and he is even seeing my children too a lot more”.

75                  The applicant did not call any medical evidence.

76                  Had the applicant remained in employment with Qantas his gross earnings from the date of termination up until 8 April 2002 would have been $231,096.  His actual earnings for that period were $170,805, a difference of $60,291. 

77                  Had he continued work in the same position at Qantas the gross weekly earnings would be $971 as against his actual earnings $777, a difference of $194 per week.  According to the Australian Life Tables 1996/98 the present value of $1 per week for a 44 year old male ceasing at age 65 is $785.85.  Therefore the present value of $194 per week is $152,445.  This would need to be discounted substantially for other contingencies, such as his hypothetical employment at Qantas being terminated for other reasons.  I would allow $100,000 for future loss.

78                  As to general damages, the evidence does not enable me to find that there was any medical condition going beyond the natural distress and disappointment that one would expect from a major life setback such as the loss of valued employment.  His state has improved in recent times, due at least in part, one would think, to his return to steady employment.  There is no basis for finding any aggravation on the part of Qantas.  On the other hand, had there been a breach of the Act it would have been a taking away from the applicant, for an unlawful reason, of a central part of his life, work which he enjoyed and which gave him a feeling of satisfaction and self worth.  I would assess general damages at $25,000.  No claim was made for interest and I say nothing as to its availability.

79                  I would therefore assess compensation as follows:

Past loss                         60,291

Future loss                    100,000

General damages            25,000

Total                         $185,291

Orders

80                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated:              21 May 2002