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 3^rd 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

THE COURT ORDERS THAT:

(i) the appeal be allowed and the orders of Driver FM made on 15 November 2001 be set aside.

(ii) the respondent pay the appellant a sum equal to one (1) weeks salary under the “Project Specific Contract of Employment”; and

(iii) there be no order for costs at first instance or on the appeal.

THE COURT DECLARES THAT:

(iv) the respondent has committed unlawful discrimination.

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

REASONS FOR JUDGMENT

1                     The appellant, Mr Barghouthi, appeals to this court against the decision of Driver FM in the Federal Magistrates Court dismissing his application, which alleged he was the victim of unlawful discrimination engaged in by his employer, Transfield Pty Limited, in breach of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). His application was dismissed on the basis that there was no evidence that he was in fact dismissed from his employment and further that there was no evidence of discrimination against him when he attempted to recommence work with the respondent some seventeen months later. The appeal is brought to this court pursuant to s 24(1)(d) of the Federal Court Act 1976 (Cth) and is before a single judge in accordance with a direction made pursuant to s 25(1A) of that Act. The appellant was not represented at the hearing.

The Facts

2                     On 4 January 1999 the appellant entered into a “Project Specific Contract of Employment” with the respondent to work on the “Telstra CAN 2001 Project”. The contract specified that the period of engagement was not to exceed 26 weeks. It is of some relevance that at the time this contract was signed the appellant remained employed by PlesTel Pty Ltd (now called Commander Australia Limited) and that he had gone on leave without pay from that employment on 29 December 1998 on account of a back injury sustained whilst in the course of his employment. It was concluded by the Magistrate below that Mr Barghouthi had indeed sustained a back injury at the time he was employed by PlesTel and that finding was not in dispute at the hearing before this court. The appellant lodged a compensation claim for his injury on 29 December 1998. It came to the attention of PlesTel that Mr Barghouthi had commenced employment with Transfield and as a result he was called in to a meeting with PlesTel on 26 February 1999 where he was confronted over his new employment and informed that PlesTel would implement a summary dismissal and advise the company’s insurers, Royal & Sun Alliance Insurance, of a possible fraudulent claim. There is some suggestion from the evidence that PlesTel may then have contacted Transfield to inform them of the action which had been taken against Mr Barghouthi. The appellant claims that this turn of events caused him great distress which affected his ability to work.

3                     It is noted that in his submissions the appellant alleged that the actions of PlesTel should be found to be discriminatory and unlawful and further that the solicitors who have acted for him in the past did so somehow in breach of the law. However, these matters are irrelevant to this case as none of Commander Australia, PlesTel nor the solicitors are a party to these proceedings.

4                     The appellant commenced work with the respondent in January 1999. However his back injury had forced him to stop working on 23 February 1999. On 1 March 1999 the appellant telephoned Philip Batty, the Project Manager, and verbally requested a leave of absence from his employment with the respondent on account of his injury. In a letter, reacting although not really responding to the appellant’s request sent on 5 March 1999 Mr Batty, on behalf of Transfield, stated:

“We confirm your verbal resignation of 1^st March, 1999 from Transfield Maintenance and would like to take this opportunity to thank you for all your work and wish you every success in the future.”

The Magistrate accepted the appellant’s evidence that he disputed that he had resigned despite there being “no contemporaneous written record of that”: Barghouthi v Transfield Services [2001] FMCA 113 at [10].

5                     The appellant wrote a letter to the respondent on 2 August 2000 in an attempt to return to work subject to his inability to undertake physical labour due to his back problem. The appellant was labouring under the misapprehension that his employment with Transfield was for the term of the Project on which he had been working rather than the 26 weeks that the contract specified. When he received no reply he wrote again on 21 September 2000. In response he was informed that the respondent had deemed him to have resigned on 1 March 1999 and that there was “never any prospect of continuing employment” and indeed no prospect of any future employment as Transfield had recently retrenched some 200 employees from Telecommunications contracts.

History of the Litigation

6                     On 21 November 2000 Mr Barghouthi filed an application for relief in the Industrial Relations Commission of New South Wales. I was told from both sides of the bar table that this application was dismissed because the Commission found it did not have jurisdiction to determine the matter. Mr Barghouthi then complained to the Human Rights and Equal Opportunity Commission which terminated his complaint on the basis that it was “misconceived” on 7 April 2001. As a result of this termination, on 18 April 2001 Mr Barghouthi made an application to the Federal Court pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (the “HREOC Act”). The Federal Magistrate dismissed this application on 15 November 2001 and on 3 December 2001 Mr Barghouthi lodged an appeal to this court.

The Decision of the Federal Magistrate

7                     The Federal Magistrate gave ex tempore reasons for judgment. Despite divergence in the evidence, it was held both that the appellant was “a sincere and honest witness”, at [6], and also that the witnesses called in support of the respondent’s case were “reliable witnesses”, at [7]. This provides little guidance as to which version of the events surrounding the allegedly discriminatory conduct was to be accepted. Special reference was made, however, to the fact that “the applicant misunderstood his position following the expiration of his employment”, at [6]. In his consideration of the issues his Honour found that Mr Bargouthi had sought a leave of absence (and not resigned) from the employment of Transfield as a result of either his back injury or the distress he was suffering as a result of the events surrounding PlesTel’s termination of his employment or both. Although it was accepted that the appellant disputed the suggestion that he had resigned, at [10], his Honour placed greater emphasis on the fact that Mr Barghouthi did not return to his employment. The Magistrate also accepted that at the time he did seek to resume work (August and September 2000) there were no positions available for him because of the downturn in the respondent’s business: see [10] and [12].

8                     The crux of the decision is found at [11] where his Honour states:

“It is for the applicant to satisfy this court that he has been discriminated against [reference omitted]. I have no evidence before me on which I could be satisfied that the applicant was dismissed from his employment by the respondent. The applicant either resigned from that employment as was understood by the respondent at the time or he sought and obtained an indefinite period of absence from his employment. Probably the latter. The applicant made no attempt to resume his employment until after his fixed term contract had expired. Clearly, the expiration of a fixed term contract terminates the employment relationship and the termination thus arrived at is not an unlawful termination [reference omitted]. There can be no discrimination in the termination of employment by the simple effluxion of time.”

Duty of the Court in dealing with an unrepresented litigant

9                     Most of the submissions put orally and in writing by the appellant did not touch on the question before the Magistrate. He did not state any grounds upon which it was alleged that the Tribunal erred in law. Instead he spent a great deal of time on the material involving his relationship with PlesTel and other largely irrelevant matters. This is understandable considering Mr Barghouthi is not a lawyer, however, these submissions were quite unhelpful and in fact called for certain factual inferences to be made which, if made, could only have harmed the appellant’s chances of success. This does not, however, mean that the appellant can have no chance of success in these proceedings.

10                  Whilst this Court has a duty not to intervene in matters involving unrepresented litigants to such an extent that the impartial function of the Judge is compromised, a judge may intervene to protect the rights of an unrepresented litigant and to ensure that the proceedings are fair and just: see Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 per North J at [64], and Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129 per Sackville, North and Kenny JJ at [29]. Consistent with this duty I will now consider both the respondent’s submissions and also whether the Magistrate made any errors of law that would require that I allow this appeal.

The question of jurisdiction

11                  The respondent submitted that the appellant was not entitled to make the complaint he made to the Human Rights and Equal Opportunity Commission as he had already brought an application on the same factual circumstances in the New South Wales Industrial Relations Commission which had been dismissed and, as such, there was no jurisdiction in the current proceedings. This submission was raised for the first time in the proceedings before me nonetheless it is acknowledged that if the submission was accepted it would be fatal to the complaint. I do not, however, accept the submission.

12                  The submission is based on s 13(4) of the DDA which states:

“If:

(a)   a law of a State or Territory relating to discrimination deals with a matter that is dealt with by this Act; and

(b)   a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act;

the person is not entitled to make a complaint or institute a proceedings under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.”

13                  Following the terms of this sub-section, counsel for the respondent contended, as I understood the contention, that it operated to preclude jurisdiction in this case in the following way:

(1)               Section 169 of the Industrial Relations Act 1996 (NSW) adopts the provisions of the Anti-Discrimination Act 1977 and as such it is a law of a State relating to discrimination.

(2)               The proceedings commenced by Mr Barghouthi in the Industrial Relations Commission related to the same factual issues as the proceedings brought in the Human Rights and Equal Opportunity Commission alleging a breach of s 15 (which is contained in Part 2) of the DDA.

(3)               Thus, Mr Barghouthi was not entitled to make the claim he made in the Human Rights and Equal Opportunity Commission and, as such, this court has no jurisdiction to hear the matter.

14                  This submission must fail. Although it is certainly doubtful that proposition (1) is correct, I need not decide that matter as the submission fails for another reason. Section 13(4) requires that a person has made a complaint under the relevant State law, in this case the Industrial Relations Act 1996 (Cth). It was accepted by both sides that the proceedings before the Industrial Relations Commission were dismissed for want of jurisdiction. Where there is no jurisdiction it cannot be said that a complaint has been made under the State Act. Section 13(4) of the DDA allows a person to bring an action under State law or Federal law but not both. The section does not operate such that where one forum says it has no jurisdiction the other ipso facto must be denied jurisdiction. As a matter of policy anti-discrimination legislation should not be read in a way that excludes the rights of claimants to have their cases heard in a court, whether it be State (or Territory) or Federal. Parliament cannot have intended that where a claimant makes a mistake in an application to a court leading to a finding of no jurisdiction in that forum that claimant is then excluded from rights altogether. Section 13(4) operates to ensure that where a claimant elects to bring an action in either the State or Federal jurisdiction that claimant is bound by the consequences of that election but that cannot be so if the claim is not in fact heard because the chosen forum lacks jurisdiction. Although, as counsel for the respondent submitted, the opposite reading is available on the face of the text it would have absurd consequences and it cannot be accepted. I therefore reject the submission that there is no jurisdiction in this case.

Did the Magistrate make any errors of law?

15                  Having established that this court has jurisdiction in these proceedings it must be determined whether there were any errors of law in the findings of the Magistrate. As noted above the Magistrate found, at [11], that there was no evidence before him on which he could be satisfied that Mr Barghouthi was dismissed from his employment. With respect to his Honour, this is clearly not the case. The accepted facts were that Mr Barghouthi verbally requested a leave of absence from his employment at Transfield on account of his back problem and four days later he was sent a letter by Transfield which said “We confirm your verbal resignation”. This does not amount to a resignation by the employee or a grant of an indefinite period of absence from his employment, as the learned Magistrate found. Rather, at law, it amounts to a constructive dismissal regardless of what Mr Barghouthi may or may not have understood the situation to be.

16                  The concept of constructive dismissal is generally found in cases where “the employee is instructed or forced to resign by the employer, or leaves in response to conduct by the employer which constitutes a repudiation of the employment contract”, B Creighton & A Stewart, Labour Law: an introduction 3^rd ed 2000 at 324; see also G McCarry, “Constructive Dismissal of Employees in Australia” (1994) 68 Australian Law Journal 494. Although it is often the case in constructive dismissal situations that the employer has threatened to terminate employment and in response the employee has resigned (see, for example, the situation in Transport Workers’ Union of Australia v Eastern Goldfields Transport Board (1989) WAIG 1895) this need not be the case. As Santow J held in Hiser v Hardex Co-operative Ltd (unreported, Supreme Court of NSW, Santow J, 14 December 1993) under the heading “Resignation or Compulsory Termination”:

“[t]he absence of an explicit threat by the employer in peremptory language is not fatal. Rather the circumstances of the resignation are examined to determine whether it was in substance equivalent to a dismissal by the employer, in that the employee did not freely consent to the termination [references omitted].”

The question whether there was a constructive dismissal is determined by looking at all the circumstances of the case.

17                  This case did not involve any direct threats of termination of employment but it did involve a resignation forced by the employer that clearly amounts to a repudiation of the employment contract. At no point did Mr Barghouthi resign. The letter sent by Transfield which purported to confirm his verbal resignation can be construed as nothing but a repudiation of the employment contract amounting to a constructive dismissal. By purporting to accept a resignation rather than explicitly terminating Mr Barghouthi’s employment, Transfield sought to rid itself of a difficult employee with a disability thereby avoiding such issues as reassigning him to more suitable employment within the corporation or paying him any further wages. The conclusion of the Magistrate that there was no evidence that the appellant was dismissed thus, with respect, constitutes an error of law and the appeal should be allowed in this regard.

18                  I should note that in his written submissions and in lengthy oral submissions Mr Barghouthi urged the court to make the factual inference that the motivation for Transfield in dismissing him was that his former employers at PlesTel had contacted his new employers at Transfield to notify them the possibility that Mr Barghouthi had made a fraudulent insurance claim. Fortunately for the appellant that was not clear from the evidence and counsel for the respondent conceded there was no suggestion of that. If it were the case that the appellant had been dismissed because of the fraud allegations and not his disability the appeal would have to be dismissed for this reason.

Unlawful discrimination

19                  Instead, the evidence before the Magistrate displays a direct link between the conversation of 1 March 1999, when Mr Barghouthi informed Mr Batty, at Transfield, that he required time off on account of his back injury, and the constructive dismissal by the letter of 5 March 1999. On the evidence no other conclusion is available but that Mr Barghouthi was constructively dismissed because of his back injury, which falls within the definition of a “disability” in s 4 of the DDA. Further, had he not suffered from that disability he would not have been dismissed by Transfield. A dismissal in these circumstances amounts to “disability discrimination” pursuant to s 5(1) of the DDA which provides that:

“a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.”

It is also “discrimination in employment pursuant to s 15(2)(c) of the DDA which states:

“It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

…

(c) by dismissing the employee”.

20                  Counsel for the respondent sought to argue that the dismissal was not discrimination by virtue of s 15(4) of the DDA. Sub-section 4 provides that it is not unlawful discrimination for an employer to dismiss an employee on the ground of a 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.”

21                  This submission was based on the evidence that the appellant’s position as “Team Leader – Inspector, Tester and Designer working on the Telstra CAN 2001 Project”, as it is described in the Contract of Employment, was physical work (it involved lifting off the concrete or fibreglass casing around ‘Telecom pillars’ that are located in the streets) which, due to his back injury, Mr Barghouthi could no longer undertake. However, Mr Barghouthi also gave evidence before the Magistrate that between 17 and 23 February 1999 he had worked in his employment with Transfield in an office redesigning maps. As such there appear to have been alternate duties available in his employment that his disability would not have prevented him from doing. Instead of exploring such options as a return to work program and using Mr Barghouthi’s skills in an office job, the respondent simply dismissed him.

22                  It is worth noting that this case is distinguishable from the recent decision of Heerey J Cosma v Qantas Airways Limited [2002] FCA 640 (handed down after the hearing in this matter) where, pursuant to s 15(4), his Honour dismissed an application alleging unlawful discrimination. That case involved a substantial examination of the conduct of a rehabilitation program implemented by Qantas for one of its employees who had injured his shoulder when lifting a heavy bag onto a Qantas aircraft. Qantas tried to place their employee in a number of different jobs that were consistent with his rehabilitation and continuing disability between 1992 and 1997. Unfortunately at the end of that period it was the case that Qantas had no suitable reemployment opportunities available. The dismissal was held not to be discrimination as in that case that the applicant could not return to his pre-injury employment. There is no evidence that Mr Barghouthi could not continue his employment with Transfield working in an office or in some capacity not inconsistent with his disability. The failure to explore such possibilities means that the respondent’s dismissal cannot fall within the terms of s 15(4) and the dismissal amounts to discrimination in employment.

23                  However, although for the reasons outlined above there was an error of law in [11] of the Magistrate’s Reasons for Judgment, I must accept the respondent’s submission that there was no error of law in the Magistrate’s finding, at [12], that there was no “evidence from which [he] could conclude that that the applicant was discriminated against when he was refused employment in August and September 2000. Those requests for employment were refused because the respondent had no suitable positions available.” This finding was clearly available on the evidence before him and contains no legal error.

Relief available to the appellant

24                  It was submitted by counsel for the respondent that if this court were to hold that the appellant had in fact been dismissed and that the dismissal amounted to discrimination, the appellant should only be entitled to damages amounting to 1 weeks salary. This submission is, unfortunately for Mr Barghouthi, correct. It is drawn from the terms of the contract, as it was amended by Mr Barghouthi himself, that; “There will be one week notice before termination”. Further, it is noted that there was no provision in the contract for sick leave and the appellant made no attempts to discuss his return to work in the 26-week period for which he was employed. These factors combined mean the appellant should not be entitled to his salary for the full 26 weeks of the contract because of this term. Further, he is not entitled to any compensation from Transfield for their failure to employ him in August or September of 2000 as this was found not to involve any discrimination.

25                  Also, there was no evidence before the Magistrate of any other damage flowing from the dismissal such as the “mental suffering, social suffering [and] the health suffering” claimed by the appellant. The only evidence related to the back injury sustained while working for PlesTel. Thus, no damages can be awarded on any other basis. As such, pursuant to s 46PO of the HREOC Act (which enabled the appellant to bring these proceedings to this court), I will order that the respondent pay the appellant the sum equal to 1 weeks salary under the “Project Specific Contract of Employment” and also that the respondent pay the appellant’s costs.

26                  However, noting the seriousness of the respondent’s conduct in dismissing an employee in an underhanded fashion on account of his disability I would also, in accordance with the discretion conferred on this court by s 46PO(4) of the HREOC Act, make an order declaring that the respondent has committed unlawful discrimination.

Associate:

Dated: 5 June 2002