[2002] FCAFC 425

Background

The Plaintiff was an employee in the Defendant Qantas Airways’ Ramp Services, whose duties involved intensely physical tasks of moving heavy luggage. The Plaintiff was injured while undertaking these duties and was declared unfit for work.

The Defendant conducted a rehabilitation programme for injured employees, whereby it takes all reasonable steps to provide the employee with suitable employment or assist the employee to find such employment. When the Plaintiff returned to work, he was placed in various temporary clerical positions and wished to remain in one such position. However, there was no permanent vacancy and the Defendant was unable to continue indefinitely to sustain him in alternative duties. The Plaintiff was later notified by the Defendant that because he was unable to resume his pre-injury duties, he would be terminated if appropriate redeployment opportunities could not be found within the following two months.

The Plaintiff claims that this termination constituted discrimination in employment contrary to Sec. 15 of the Disability Discrimination Act of 1992. Subsection 15(4) however provides that it is not unlawful discrimination for the employer to act on the ground of the employee’s disability when taking into account, among other things, whether the employee would be unable to carry out the inherent requirements of the “particular employment” because of his disability. At issue is the identification of the Plaintiff’s “particular employment” for the purposes of Sec. 15.

Court’s decision

The Plaintiff argued that the whole of the employment relationship was relevant to identifying his “particular employment.” He submitted that he had ceased to perform the Ramp Services duties at least five years prior to his termination and his employment since was of a more general nature, including all the clerical duties he performed. Thus the clerical work finally undertaken by him prior to termination became his “particular employment” for the purposes of Sec. 15, and he was fully able to perform the required tasks of this employment. The Defendant argued that the Plaintiff’s “particular employment” was the work he was obliged to perform under his employment contract, namely Ramp Services duties.

The Court held that “particular employment” refers to the kind of employment required under the employment contract. The court found that at no time was it agreed between the parties that the Plaintiff’s duties would be changed, other than in the context of assigning him temporary duties as part of a rehabilitation program. The only permanent duties which were ever agreed upon by both parties were those associated with the Ramp Services (which he was no longer able to perform); all other employment were incidental to the Plaintiff’s attempted rehabilitation and was provided by way of trial or on a temporary basis. Thus, the termination of the Plaintiff’s employment fell within Subsection 15(4) was not in violation of the Act.