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NEWS > WINTER 2003
Diabetes discrimination defended in defence forces
In Commonwealth v Williams [2002] FCAFC 435, the Full Bench of the Federal Court of Australia decided that an insulin dependent information technology specialist employed with the RAAF was not unlawfully discriminated against when he was dismissed from his employment.
Mr Williams enlisted in the RAAF in 1981 and, in 1989, he was diagnosed with insulin dependent diabetes. His employment with the RAAF continued until 2000 when his employment was terminated. Mr William's termination claimed to be due to a determination having been made that his medical condition meant that he was not 'combat ready' or 'deployable' in accordance with the RAAF's minimum employment standards for all its non-civilian employees.
At the initial hearing of the matter, the Federal Magistrates' Court found in favour of Mr Williams. The court found that, while the RAAF policy was clear in its requirement for 'combat ready' employees, Mr Williams did not need to be 'combat ready' in order to properly perform his duties. It also found that the need to provide Mr Williams with regular meals or back up supplies of insulin on RAAF bases would not impose an 'unjustifiable hardship' on his employer.
On appeal to the Full Bench of the Federal Court, the court determined that the primary issue to be decided was whether or not the exception under s 53(1) of the Disability Discrimination Act 1992 (Cth) applied. Section 53(1) makes lawful discrimination that would usually be unlawful where that discrimination is in connection with a member of a defence force who is engaged in 'combat' or 'combat related' duties. The Full Bench found that Mr William's position as a Communication and Information Systems Controller (CISCON) may require him to work in a support role to other persons such as fighter pilots or other crew performing combat duties. As such, his position came within section 53(1) of the Act. The effect of this finding was that Mr Williams could be lawfully discriminated against by the RAAF on the basis of his disability because it meant that he was not able to perform 'combat related' duties.
The Full Bench of the Full Court in this case did not go so far as to state that all defence force personnel would conceivably fall within the 'combat duties' exception under the Act and therefore not be protected against discrimination. The court stated that there must be an element of directness between the support person and the combat duties for the s 53(1) exception to apply and that it would be possible for some defence force members in uniform to hold positions not involved in combat related duties.
Given recent events on the world stage, this decision will be of significant interest to our defence personnel.
Disclaimer:
The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from our office. | 
