Australia, June 5 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1 The Respondent, Qube Ports Pty Ltd (Qube) is seeking that the Tribunal dismiss the Applicant, Mark Ferrington's disability discrimination complaint (the complaint) on the basis that the Tribunal does not have jurisdiction as the matter involves federal jurisdiction. The Tribunal has decided to dismiss the complaint on this basis.

Background

2 Mr Ferrington commenced employment with Qube as a Stevedore on 1 August 2007.

3 In January 2020, Mr Ferrington suffered a work-related back injury and lodged a successful workers compensation claim.

4 In late 2021, Mr Ferrington returned to work with Qube on light duties.

5 On 17 March 2023, Mr Ferrington's employment as a Stevedore was terminated by Qube on the ground that Mr Ferrington had an injury that prevented him from performing the inherent requirements of his position.

6 Prior to his termination, Mr Ferrington's employment with Qube was governed by the Qube Ports Pty Ltd Port of Kembla Enterprise Agreement 2021 (the Enterprise Agreement). Mr Ferrington is a member of the Maritime Union of Australia Division of the Construction, Forestry and Maritime Employees Union. The Maritime Union represents members employed by Qube at its operations at Port Kembla who are covered by the Enterprise Agreement.

7. On 1 December 2023, Anti-Discrimination NSW received a complaint from Mr Ferrington against Qube. Mr Ferrington alleged that the termination of his employment was unlawful because:

1) The decision to terminate his employment was wholly or partly on the ground of an actual or imputed disability.

2) Stevedoring encompasses many roles of Qube including Forklift Driver.

3) The complainant had been performing Forklift and Dock Truck Driving roles post injury for over a year since his return to work on light duties.

4) Qube had no legitimate basis for concluding that Mr Ferrington had a medical condition that renders him permanently unfit to perform the duties of his position.

5) Even if Mr Ferrington was unable to perform all the roles of a Stevedore, there are a plethora of roles he can perform with Qube.

6) Qube did not take account of the relevant considerations prior to terminating Mr Ferrington's employment. No consideration was given to reasonable adjustments (services and facilities) to enable Mr Ferrington to continue to perform the role.

8. Qube responded to the complaint by stating that the inherent requirements of a Stevedore include the core activities of bending, squatting and climbing, with the specific tasks listed in the Enterprise Agreement. Qube stated that they relied on sound medical advice from multiple experts before any decisions were made.

9. Attempts made by Anti-Discrimination NSW to settle or resolve the complaint at a conciliation conference were unsuccessful. On 17 June 2024, Mr Ferrington requested that his complaint be referred to the Tribunal.

10. On 27 June 2024, the President of Anti-Discrimination NSW referred the complaint to the Tribunal under s 93C of the Anti-Discrimination Act 1977 (NSW) (ADA).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1969e22ae84834caf98772df)

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