FEDERAL COURT OF AUSTRALIA

State of New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed in part.

3.    The declarations and order made by the primary judge on 23 June 2023 be set aside.

4.    In the event that the appellant wishes to make an application for its costs of the appeal and its costs incurred in the proceedings below to date:

(a)    The appellant file and serve written submissions in support of its position by or before 4.00 pm on 19 September 2024, with such submissions not to exceed 5 pages in length;

(b)    The respondent file and serve written submissions in support of her position by or before 4.00 pm on 26 September 2024, with such submissions not to exceed 5 pages in length;

(c)    Costs be determined on the papers.

5.    If the appellant does not file any written submissions as provided for in Order 4(a), each party is to bear their respective costs of the appeal and the costs incurred in the proceedings below to date.

6.    Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the matter be referred forthwith for mediation by a Registrar of the Court, to take place at the earliest date suitable to the parties and the Registrar.

7.    In the event that the matter does not resolve at or shortly after the mediation, the matter be remitted to the primary judge in the Federal Circuit and Family Court of Australia (Division 2) to determine the matter according to law.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    A person is entitled to be protected from discrimination on the basis of an actual or imputed disability which causes them to be dismissed from employment or suffer any other detriment in employment under ss 15(2)(c) and (d), respectively, of the Disability Discrimination Act 1992 (Cth) (DDA).

2    Ms Renee Annovazzi (the respondent in this appeal) was a trainee train driver, who commenced employment with Sydney Trains (the appellant) in October 2017. In the proceedings below, Ms Annovazzi claimed that Sydney Trains had engaged in unlawful discrimination based on her disabilities, namely, Attention Deficit Hyperactivity Disorder (ADHD) and Asperger’s Syndrome. The circumstances of Ms Annovazzi’s claims are set out in detail below. In short, in November 2017, during her probationary period, Ms Annovazzi was removed from the driver training course and her employment was later terminated on 1 February 2018. Sydney Trains alleged that it took these actions in circumstances where it claimed that relevant decision-makers within its organisation believed that Ms Annovazzi had failed to disclose her medical conditions in disclosures she was required to make in the course of the application and recruitment process leading to her being offered employment with Sydney Trains.

3    Ms Annovazzi’s pleaded case below was that Sydney Trains engaged in unlawful discrimination contrary to the DDA in three respects, namely that:

(a)    Sydney Trains’ decision to remove Ms Annovazzi from the driver training course was contrary to s 15(2)(d);

(b)    Sydney Trains’ decision to terminate Ms Annovazzi’s employment was contrary to s 15(2)(c); and

(c)    Sydney Trains’ request that she provide information and records relating to her disabilities was contrary to ss 30(2)(a) and (2)(b)(ii).

4    She also raised a claim that Sydney Trains had harassed her on the basis of her disabilities, contrary to s 35(2) of the DDA. That claim was not successful before the primary judge and that finding is not challenged in this appeal.

5    Sydney Trains denied Ms Annovazzi’s claims. In so doing, Sydney Trains relied upon the fact that it is a “rail transport operator” as defined in s 4(1) of the Rail Safety National Law 2012 (NSW), and therefore subject to obligations that include ensuring as far as reasonably practicable each “rail safety worker” performing “rail safety work” has “sufficient good health and fitness to carry out that work”: s 52(2)(b)(i) of the Rail Safety Law. Section 114 of the Rail Safety Law requires Sydney Trains to prepare and implement health and fitness programs that adhere to prescribed requirements for such workers. These requirements include, by force of reg 27 of the Rail Safety National Law Regulations 2012 (NSW), those set by the National Standard for Health Assessment of Rail Safety Workers published by the National Transport Commission. The iteration of the National Standard that was applicable at the time of the events in issue was published in 2017.

6    Sydney Trains contended in the proceedings below that Ms Annovazzi was required but failed to disclose her medical conditions in an application form that she completed on 11 March 2017 as well as during the course of a pre-employment health assessment conducted by an organisation called Sonic HealthPlus (Sonic Health), during which she was required to complete a questionnaire. Sydney Trains contended that Ms Annovazzi was removed from the driver training course when she later disclosed to one of her line managers, Mr Daniel Joseph Bellia (Train Crew Capability Coordinator) that she had been prescribed medication for ADHD and that she had also been diagnosed with Asperger’s Syndrome. Mr Bellia reported this disclosure to, amongst others, Dr Armand Casolin (Chief Health Officer for Sydney Trains). Sydney Trains contended that the removal of Ms Annovazzi from the driver training course did not amount to unlawful discrimination, as its purpose was to determine whether she should undergo a Fitness For Duty Assessment (FFD Assessment), which was to be organised and managed by Transport Shared Services (TSS) (a shared agency of Transport for NSW). Sydney Trains further contended that the decision to terminate Ms Annovazzi’s employment was made by Ms Tracy Samassa (Director, People and Change (Operations)), based on information provided to her by Ms Janene Browning (Lead Business Partner). Sydney Trains contended that Ms Samassa’s decision to terminate was made on the basis of her belief that Ms Annovazzi had been dishonest by failing to disclose her medical conditions during the application and recruitment process when she was required to do so. It submitted that this decision was not made because of Ms Annovazzi’s disabilities contrary to the DDA, but because of Ms Samassa’s belief that Ms Annovazzi had been dishonest.

7    The primary judge found that Sydney Trains engaged in acts of unlawful discrimination, including by dismissing Ms Annovazzi from her employment: Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542 (primary judgment or PJ). The primary judge was ultimately satisfied that Sydney Trains had engaged in two acts of unlawful discrimination: failing to return Ms Annovazzi to, or keeping her out of, the driver training course after 9 January 2018, and dismissing Ms Annovazzi from her employment. The primary judge was satisfied that Sydney Trains had engaged in this conduct by reason of Ms Annovazzi’s disabilities. In arriving at this conclusion, the primary judge determined, among other things, that contrary to Sydney Trains’ contention that Ms Samassa made the decision to dismiss Ms Annovazzi, in fact, a person or persons within TSS had already determined (before Ms Samassa became involved) that Ms Annovazzi would not undergo an FFD Assessment and this was in effect the purported decision to terminate: PJ [86]. The primary judge also concluded that Sydney Trains had acted contrary to s 30(2) by requesting that Ms Annovazzi provide information and records relating to her disabilities.

8    By its appeal to this Court, Sydney Trains raises a number of grounds including those concerning what a court is required to consider when determining whether there has been direct discrimination when deploying the facilitative tool of a hypothetical comparator, what may or may not be taken into account when determining what comprises the circumstances “that are not materially different”, and applying the causal test “on the ground of a disability”. The appeal also raises for consideration how a court is to determine whether a request made for information offends s 30 of the DDA.

9    For the reasons set out below, the appeal is allowed in part and requires remittal to the primary judge. However, due to the lengthy period of time that has elapsed since the key events took place in late 2017 and early 2018, we have decided that it is necessary and appropriate to refer the proceeding for mediation by a registrar.

LEAVE TO APPEAL

10    Sydney Trains requires leave to appeal as the liability judgment was interlocutory in nature: s 24A(1A) of the Federal Court of Australia Act 1976 (Cth); r 35.11 of the Federal Court Rules 2011 (Cth); Monash Health v Singh [2023] FCAFC 166; 327 IR 196 at [38]-[44].

11    We grant leave for Sydney Trains to appeal because, for the reasons which follow, the primary judgment is attended by doubt sufficient to warrant its reconsideration and substantial injustice would be caused to Sydney Trains unless leave were granted.

RELEVANT STATUTORY PROVISIONS

12    Central to the appeal is consideration of what the relevant statutory provisions under the DDA required the primary judge to consider when determining whether Sydney Trains had directly discriminated against Ms Annovazzi in her employment when taking her out of the driver training course and dismissing her. Those relevant provisions are set out as follows:

5 Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)     For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

15 Discrimination in employment

…

(2)    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:

(a)    in the terms or conditions of employment that the employer affords the employee; or

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

…

30 Requests for information

(1)    This section applies in relation to a person (the first person) if, under Division 1 or this Division, it would be unlawful for the first person, in doing a particular act, to discriminate against another person on the ground of a disability of the other person.

(2)    It is unlawful for the first person to request or require the other person to provide information (whether by completing a form or otherwise) if:

(a)    the first person requests or requires the information in connection with, or for the purposes of, doing the act referred to in subsection (1); and

(b)    either or both of the following applies:

(i)    persons who do not have the disability would not be requested or required to provide the information in circumstances that are not materially different;

(ii)    the information relates to the disability.

(3)    Subsection (2) does not apply if:

(a)    evidence is produced to the effect that none of the purposes for which the first person requested or required the information was the purpose of unlawfully discriminating against the other person on the ground of the disability; and

(b)    the evidence is not rebutted.

Example:     An employer may not require a prospective employee to provide genetic information if the employer intends to use that information to unlawfully discriminate against the employee on the ground of a disability of the employee.

However, the employer may require such information in order to determine if the prospective employee would be able to carry out the inherent requirements of the employment or to determine what reasonable adjustments to make for the employee.

(4)    This section has effect subject to subsection 54A(5) (evidence that an animal is an assistance animal).

RELEVANT PERSONS AND WITNESSES AND KEY TERMS

13    It is useful to set out a number of key persons mentioned in the primary judgment, who held the positions identified below at all relevant times unless indicated to the contrary:

(a)    Mr Bellia held the position of Train Crew Capability Coordinator and had various responsibilities including overseeing the behaviour of trainee train drivers such as Ms Annovazzi;

(b)    Dr Casolin held the position of Chief Health Officer for Sydney Trains and another entity, NSW TrainLink. In that position, Dr Casolin’s responsibilities included providing advice to management in relation to the health of its employees and the impact of illness or injury on their work capacity, training doctors who conducted FFD Assessments of Sydney Trains’ employees, and auditing those assessments;

(c)    Ms Soula Vlahos held the position of Manager Training & Competence Assurance at Sydney Trains;

(d)    Ms Zoobaida (Zoe) Zidan held the position of Train Crew Training Coordinator at Sydney Trains;

(e)    Ms Janene Browning held the position of Lead Business Partner (Human Resources) at Sydney Trains;

(f)    Ms Samassa held the position of Director, People and Change (Operations) at Sydney Trains, having commenced in that position on 15 January 2018;

(g)    Sonic Health was an occupational healthcare provider business that was engaged by Sydney Trains at all relevant times and which conducted a pre-employment medical screening of Ms Annovazzi;

(h)    Dr Prahvind Kumar was the medical practitioner engaged by Sonic Health who conducted the pre-employment medical screening of Ms Annovazzi;

(i)    Dr Andrew Frukacz was a psychiatrist whom Ms Annovazzi had consulted and who had prescribed her medication to treat her ADHD;

(j)    Mr Bill Chami was an employee of either Sydney Trains or TSS who had requested Ms Annovazzi to provide a medical note/briefing regarding her prescription medications and disabilities;

(k)    Mr Dean Lesser held the position of Senior Health Solutions Coordinator (Injury & Claims Management) at TSS;

(l)    Dr David Jones was a Specialist Occupational and Environmental Physician at Sonic Health with whom Dr Casolin consulted;

(m)    Ms Adel Eter was employed by Sydney Trains as a Short Term Planner in Trainee Operations and acted as Ms Annovazzi’s support person at the meeting on 31 January 2018 at which Ms Annovazzi’s employment was terminated; and

(n)    Ms Stephanie Majstorovic and Ms Michelle Whitton were staff members of TSS, though there was no evidence before the primary judge as to the nature of their roles.

14    In the proceedings below, the following persons gave evidence and were each cross-examined:

(a)    Ms Annovazzi;

(b)    Mr Bellia;

(c)    Ms Samassa;

(d)    Dr Casolin; and

(e)    Ms Adel Eter.

15    The following terms and acronyms take the following meaning:

(a)    DDA means the Disability Discrimination Act 1992 (Cth);

(b)    ADHD means Attention Deficit Hyperactivity Disorder;

(c)    TfNSW means Transport for NSW;

(d)    TSS means Transport Shared Services, a shared agency of TfNSW;

(e)    Application Form means the form that Ms Annovazzi completed on 11 March 2017 during the course of a pre-employment health assessment conducted by Sonic Health;

(f)    Termination Letter means the letter dated 30 January 2018 and signed by Ms Samassa by which Ms Annovazzi’s employment with Sydney Trains was terminated;

(g)    FFD Assessment means a fitness for duty assessment, at times referred to in the evidence as simply an “FFD”;

(h)    Medical Questionnaire or Pre-Employment Questionnaire (used interchangeably) means the pre-employment questionnaire that Ms Annovazzi completed in the presence of Dr Kumar at her pre-employment medical screening;

(i)    ASC means Ms Annovazzi’s Amended Statement of Claim in the proceeding below;

(j)    STCS means the written outline of Sydney Trains’ closing submissions in the proceeding below;

(k)    Notice means Ms Annovazzi’s Amended Notice of Contention;

(l)    TA Act means the Transport Administration Act 1988 (NSW);

(m)    FW Act means the Fair Work Act 2009 (Cth);

(n)    Rail Safety Law means the Rail Safety National Law 2012 (NSW);

(o)    Rail Safety Regulations means the Rail Safety National Law Regulations 2012 (NSW);

(p)    National Standard means the National Standard for Health Assessment of Rail Safety Workers published by the National Transport Commission, a prescribed standard with which Sydney Trains was required to comply under s 114 of the Rail Safety Law, by force of reg 27 of the Rail Safety Regulations; and

(q)    the primary judgment or PJ means Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542.

GROUNDS OF APPEAL

16    Sydney Trains’ appeal concerns two main issues at the epicentre of the determination of whether direct discrimination has occurred: first, when determining whether less favourable treatment has occurred, the identification of the relevant circumstances which enable the comparison to be undertaken; and second, the degree of interrelation between the less favourable treatment assessment and causation.

17    In its Amended Notice of Appeal, Sydney Trains advanced four grounds of appeal which contended that the primary judge had engaged in various errors. Based on the written and oral submissions advanced by Sydney Trains, these grounds may be conveniently grouped together as involving contentions that the primary judge erred:

(a)    in identifying and applying the hypothetical comparator for the purpose of s 5(1) of the DDA: Ground 1 (the Comparator Ground);

(b)    in making findings in relation to keeping Ms Annovazzi out of the driver training course including by:

(i)    not limiting the enquiry as to causation to the decision made by Dr Casolin;

(ii)    wrongly enquiring into an alleged failure by Sydney Trains to reinstate Ms Annovazzi to the driver training course after 9 January 2018 when this was not pleaded;

(iii)    failing to identify the person or persons who had failed to return Ms Annovazzi to the driver training course and failing to enquire into the state of mind of that person or those persons;

(iv)    failing to have regard to the email from Ms Janene Browning to Dr Casolin dated 9 January 2018 stating that Sydney Trains was waiting for further information to be furnished including a medical note, before deciding what to do next;

(v)    inferring that Sydney Trains had not returned her to the driver training course because of her actual or imputed disabilities; and

(vi)    failing to take into account the uncontested finding that the decision to remove Ms Annovazzi from the driver training course was subject to her being able to demonstrate her fitness for duty which included her complying with the requirement to furnish a medical report from her treating medical practitioner:

Ground 2 (the Driver Training Course Ground);

(c)    in relation to the findings as to causation by:

(i)    finding that a person or persons within TSS had made the decision to terminate Ms Annovazzi’s employment acting as “authorised agents” for Sydney Trains;

(ii)    failing to find that Ms Samassa made this decision; and

(iii)    failing to have regard to s 123(1) of the DDA and thereby failing to find that if Ms Samassa acted within her actual or apparent authority in deciding to dismiss Ms Annovazzi, it was sufficient to impute Ms Samassa’s state of mind and reasons to Sydney Trains:

Grounds 3(a), (b) and (d) (the Decision-Maker Grounds);

(d)    in relation to the findings as to causation by:

(i)    failing to find that Sydney Trains made the decision to terminate Ms Annovazzi’s employment because she had not made accurate disclosures in her pre-employment health assessment forms;

(ii)    failing to find that Sydney Trains had evidence to support the finding that Ms Annovazzi had been dishonest based on her incorrect disclosures in the pre-employment health assessment forms, the critical incident questionnaire, the briefing note from Mr Bellia dated 9 November 2017, and the note from Dr Frukacz;

(iii)    wrongly drawing the inference that, even if Ms Samassa had a mistaken view that Ms Annovazzi had been dishonest, it logically followed that Ms Annovazzi had proven that she had been dismissed because of her actual or imputed disabilities;

(iv)    wrongly inferring that the unnamed TSS individuals had made the decision to dismiss Ms Annovazzi because of her actual or imputed disabilities because Sydney Trains had not explained its failure to call those persons to give evidence as to their reasons; and

(v)    wrongly inverting the burden onto Sydney Trains to disprove that it had not dismissed Ms Annovazzi on the grounds of actual or imputed disability:

Grounds 3(c)(i)-(iv) and (e) (the Causation Grounds); and

(e)    by finding that Sydney Trains’ request to Ms Annovazzi that she provide a medical note or a briefing from her treating physician contravened s 30 of the DDA: Ground 4 (the Section 30 Ground).

THE DECISION-MAKER GROUNDS – GROUNDS 3(A), (B) AND (D)

Overview

18    By the Decision-Maker Grounds, Sydney Trains seeks to challenge the primary judge’s findings in relation to the identification of the decision-maker(s) of the decision to terminate Ms Annovazzi’s employment. It is convenient to deal with these Grounds first as they affect Sydney Trains’ other grounds of appeal, specifically, the Comparator Ground and the Causation Grounds, given Sydney Trains contended that the question of the appropriate comparator and determination of causation had to have as their reference point the facts and matters known to the relevant decision-maker(s).

19    In the various ways it was advanced, Sydney Trains’ essential points are that the primary judge erred by:

(a)    finding that Ms Samassa was not the sole decision-maker in relation to the decision to terminate Ms Annovazzi’s employment;

(b)    finding that a person or persons within TSS made the decision to terminate Ms Annovazzi’s employment; and

(c)    failing to find that for the purpose of s 123(1) of the DDA, if Ms Samassa acted within her actual or apparent authority in deciding to dismiss Ms Annovazzi, this was sufficient to impute her state of mind and reasons to Sydney Trains.

20    As Sydney Trains’ contentions involve challenges to findings of fact, the appropriate standard of review is the “correctness standard” set out in well-known authorities such as Warren v Coombes (1979) 142 CLR 531. In respect of such an appeal, this Court must do a real review of the evidence that was before the primary judge, noting that his Honour had all the advantages of making an assessment of the witnesses’ evidence at trial, noting that findings of fact based on the credibility of witnesses can only be reversed by an appellate court “in exceptional cases”: Fox v Percy [2003] HCA 22; 214 CLR 118 at [94] (McHugh J). In order for such an appeal to be successful, it is well-established that a finding of error is indispensable, that a mere disagreement on a finding of fact is ordinarily insufficient, but that a disagreement will suffice when only an error of law is involved: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45] (Perram J, with whom Allsop CJ and Markovic J agreed).

21    Given the nature of the appeal, before addressing Sydney Trains’ contentions on appeal, it is necessary in the first instance to identify the relevant evidence before the primary judge (and what was said about that evidence in the proceedings below) and then examine the findings made by the primary judge to determine their correctness. In examining the evidence, it is important to bear in mind that Sydney Trains does not challenge the primary judge’s findings in relation to the relevant chronological sequence of events. Nor does it challenge other critical findings of fact made by the primary judge, as we set out below.

The relevant evidence in the proceedings below and the unchallenged findings made by the primary judge

22    On 11 March 2017, Ms Annovazzi submitted an online application for the position of trainee train driver with Sydney Trains. Among other things, the Application Form required to her to answer the following questions:

Do you have a diagnosed condition for which you require reasonable adjustment throughout the selection process? The selection process may include paper-based or online tests, behavioural assessments and or interviews.

Do you have any impairment or condition which would affect your ability to perform the job for which you have applied?

23    Ms Annovazzi answered “No” to both questions. Ms Annovazzi’s evidence, which the primary judge accepted, and which is not challenged on appeal, was that:

(a)    on or about 15 February 2015, Ms Annovazzi first consulted Dr Frukacz in relation to difficulties she experienced at university and her suspicion that she had Autism Spectrum Disorder, previously known as Asperger’s Syndrome. In documents that Dr Frukacz completed for Ms Annovazzi’s university, he used the words Asperger’s Syndrome to describe her condition;

(b)    Ms Annovazzi acknowledged that she had been diagnosed with ADHD because Dr Frukacz prescribed medication to treat that condition;

(c)    each of the above matters had occurred before Ms Annovazzi applied to become a trainee train driver with Sydney Trains;

(d)    after she submitted the Application Form for the position of trainee train driver, to reassure herself, she took the opportunity to ask Dr Frukacz his professional opinion about the responses she had given, and he agreed with her assessment and the answers she had submitted.

24    On 22 May 2017, as part of the recruitment process, Ms Annovazzi attended a pre-employment health assessment with Sonic Health. That assessment involved completing a “Transport Agency Pre-Employment Health Questionnaire” (referred to interchangeably as the Medical Questionnaire or Pre-Employment Questionnaire) and a clinical examination by a Dr Kumar, who was with Ms Annovazzi at the time she completed the Medical Questionnaire. The Medical Questionnaire contained the following relevant questions:

1    Are you currently being treated by a doctor for any illness or injury?

2.    Are you receiving any medical treatment or taking any medication (prescribed or otherwise)?

…

7.20.    Have you ever had, or been told by a doctor that you had, any of the following:

…

A psychiatric illness or nervous disorder

25    The Medical Questionnaire also included a “Critical Incident Exposure Questionnaire” which included the following question:

Have you previously been treated or believe that that you would have benefited from treatment for a psychological issue? (e.g. stress related disorder, depression, anxiety)

26    Ms Annovazzi ticked the “No” box in respect of each of these questions.

27    It was also Ms Annovazzi’s evidence, which the primary judge accepted, that:

During the last portion of the appointment, I was sitting in a room at the back of the location behind and to the right of the health professional, whom I have since learned is named Doctor Pravind Kumar, while he was sitting at a desk, filling out paperwork.

I verbally disclosed my diagnoses of Asperger’s Syndrome and Attention Deficit Hyperactive Disorder to the doctor, and previous prescribed use of dexamphetamine for the latter, including that I had stopped using it months prior. After I stopped talking Dr Kumar made a dismissive gesture with his right hand (a downward flapping motion) while saying “oh, that doesn’t matter” in response to my disclosure. He did not turn around to face me while doing so.

I then offered the doctor my specialist’s (Dr Andrew Frukacz) business card, which I had removed from my bag prior to speaking and held in my hand. Dr Kumar made a different dismissive gesture with his right hand (shaking it left to right with his palm facing me) and did not respond beyond that. He had not waited until I stopped talking before he responded.

Approximately two minutes after my disclosure, Dr Kumar appeared to finish his paperwork, gave a short explanation regarding the declaration required on both the Pre-Employment Health Assessment Questionnaire and the Critical Incident Exposure Questionnaire, witnessed my signature on both, signed both questionnaires himself and ended the appointment.

28    Dr Kumar’s clinical notes from the examination stated, among other things, “No psychological sequelae for Cat 1”. Dr Kumar was not called to give evidence before the primary judge.

29    On 30 August 2017, Sydney Trains formally offered to employ Ms Annovazzi as a Trainee Train Driver commencing 13 October 2017. Clause 12 of the contract of employment noted that Ms Annovazzi would be employed on a probationary period for the first six months of her employment, and that period could be extended at the discretion of Sydney Trains. Clause 14 also provided:

14 Training

As part of your position, you will be required to complete the Passenger Train Driver Program. As part of this training, you will be required to obtain competencies by completing a number of assessments. It is an inherent requirement of your role as Trainee Train Driver that you pass these assessments and obtain these competencies.

Sydney Trains requires that you successfully pass each assessment on your first attempt of the assessment. You may not be provided with a second opportunity to complete the assessments.

Should you fail to successfully pass any assessment on the first attempt, your employment with Sydney Trains will be terminated on notice unless you can establish that there are exceptional circumstances as to why you failed the assessment(s).

30    On 10 October 2017, Dr Frukacz issued Ms Annovazzi with a medical prescription prescribing two daily 5mg tablets of dexamphetamine. The primary judge stated that an inference available from a photo of a bottle of dexamphetamine tablets that Ms Annovazzi later sent Mr Bellia (referred to in [35] below), which included the numbers “05/17” on its label, was that Ms Annovazzi had presented a prescription of that medication to a chemist in May 2017: PJ [18]. Ms Annovazzi denied that she was taking this medication at the time she completed the Medical Questionnaire.

31    On 13 October 2017, Ms Annovazzi commenced employment with Sydney Trains.

32    In late October 2017, Mr Bellia received emails from three employees raising complaints about Ms Annovazzi: PJ [29]. Mr Bellia gave evidence that when he raised these complaints with Ms Annovazzi, she told him that her behaviour was because she had ADHD and Asperger’s Syndrome, and that she had disclosed these matters during her recruitment: PJ [33]-[35].

33    On 2 November 2017, Ms Annovazzi initiated a text message exchange with Mr Bellia in relation to the fact that she took medication from time to time and wished to report it in case it was detected in workplace drug testing conducted by Sydney Trains: PJ [36]-[37]. The text messages exchanged between Ms Annovazzi and Mr Bellia were as follows:

Ms Annovazzi:        is it you that we send medication stuff to?

Mr Bellia:        Medication stuff?

Ms Annovazzi:    what we’ve got so if we get drug tested and it shows up we don’t get in trouble

Mr Bellia:        Yeah mate that’s fine send it through

34    Mr Bellia gave evidence that, after this text exchange, he called Ms Annovazzi and asked whether she had disclosed her prescription at her pre-employment medical assessment, and she said no. That evidence was not accepted by the primary judge due to its inconsistency with the balance of that exchange, described below.

35    Ms Annovazzi then sent to Mr Bellia by text a photo of a bottle to which there was attached a label with words that included “Dexamphetamine Tablets”. In a text message to Mr Bellia, Ms Annovazzi stated “label is a bit faded cause its an old bottle but ill [sic] have a new one tomorrow”. The text message exchanges continued as follows (errors in original):

Mr Bellia:        What do you take that for mate?

Ms Annovazzi:    adhd. but i only ever use it when studying for uni. havent had any in months. doc gave it to me to use on an as needed basis.

Mr Bellia:        Ah ok .

…

Ms Annovazzi:        am i ok to take the dex?

Mr Bellia:        I’m finding out for you

            Did you tell recruitment you had adhd

Ms Annovazzi:         no

Mr Bellia:         Ok

Ms Annovazzi:        i told the doc in the medical

Mr Bellia:         Ah ok

36    On the same day that this text conversation took place, Mr Bellia informed Ms Vlahos that Ms Annovazzi had told him she took dexamphetamine for ADHD. He provided the text message exchange to Ms Vlahos, who passed on a portion of the exchange to Dr Casolin: PJ [43]. At 3.18 pm on the same day, Ms Vlahos sent an email to Dr Casolin informing him of the same, and asking whether Ms Annovazzi could remain in her Category 1 Rail Safety Worker status.

37    At 3.25 pm on the same day, Dr Casolin made enquiries with Dr Jones at Sonic Health as to whether Ms Annovazzi’s ADHD had been declared and assessed. Dr Jones responded on the same day stating there was no mention on Sonic Health’s file as to the relevant history or medication.

38    On the same day, at 4.57 pm, Dr Casolin sent an email to Ms Vlahos stating that ADHD was a problem for a train driver and that Ms Annovazzi was:

… temporarily unfit and should be referred back to Sonic for a FFD with a psychiatrist.

39    At 5.02 pm, Dr Casolin sent a further email to Ms Vlahos in which he asked her to ask Ms Annovazzi when the ADHD was diagnosed and the dexamphetamine prescribed.

40    As a result of the foregoing, Ms Vlahos requested that Mr Bellia prepare a Briefing Note.

41    It was not in dispute that, on 6 November 2017, Ms Annovazzi was taken out of the driver training course and placed on light duties in Sydney Trains’ Burwood office: PJ [48].

42    Mr Bellia’s Briefing Note was dated 9 November 2017. It was addressed to “Health Solutions” and copied to Dr Casolin. It stated:

Trainee Driver … advised and declared to Myself (Daniel Bellia) Train Crew Capability Coordinator, that she wanted to identify to Sydney Trains that she was taking Dexamphetamine to cover herself in the event of being drug tested. Renee also stated she had recently been prescribed a new script for 5mg Aspen Dexamphetamine – to be taken as required.

…

Trainee Driver Annovazzi stated that she did not declare either condition ADHD or Aspergers Syndrome to Sonic health so these conditions were not taken into account whilst Trainee Annovazzi’s suitability to undertake Category 1 work as a Train Driver was being assessed.

We are requesting for Health Solutions to refer Trainee Driver Annovazzi for a Psychiatric and if required a neuropsychological assessment to determine if she is suitable for Category 1 work, and also the impact that not being able to take dexamphetamine could have on her attentiveness.

43    The primary judge did not accept that the Briefing Note accurately recorded information Ms Annovazzi provided to Mr Bellia, specifically, to the extent that is stated that Ms Annovazzi had not declared either her ADHD or Asperger’s Syndrome to Sonic Health: PJ [54]. That is because the primary judge found that the contents of the Briefing Note were inconsistent with text messages which Ms Annovazzi had exchanged with Mr Bellia in which she had effectively told him that she had disclosed her ADHD to the doctor in her medical assessment as part of her recruitment: PJ [53]-[54]. Due to the same inconsistency, his Honour also did not accept Mr Bellia’s evidence that he had had a telephone conversation with Ms Annovazzi in which she said that she had not disclosed her dexamphetamine prescription at the medical assessment: PJ [40]. These findings are not challenged.

44    The primary judge also found that he was not prepared to find that “persons involved in deciding that Ms Annovazzi be dismissed from her employment were unaware of the text messages Ms Annovazzi had sent to Mr Bellia on 2 November 2017”: PJ [54]. This finding is not challenged.

45    It was apparent from the Briefing Note that Mr Bellia was requesting an FFD Assessment. As noted above, Dr Casolin had also given evidence that he had informed Ms Vlahos that Ms Annovazzi should be referred to Sonic Health for an FFD Assessment.

46    Pausing here, the evidence before the primary judge was that both Mr Bellia (the person with oversight of trainee drivers) and Dr Casolin (the Chief Health Officer for Sydney Trains) had requested and considered it appropriate that Ms Annovazzi be referred for an FFD Assessment.

47    On 30 November 2017, Ms Zidan, Sydney Trains’ Train Crew Training Coordinator, sent an email to recipients identified as Stephanie Majstorovic, Michelle Whitton and “TSS Health Solutions”, which simply forwarded certain documents including the Briefing Note. The other two documents apparently attached to the email included a “Health Solutions Referral Checklist” and a “PD”: PJ [56]. There was no evidence as to the contents of these two documents.

48    There was no evidence before the Court as to the role or functions of Stephanie Majstorovic and Michelle Whitton. There was also little direct evidence as to the identity, role and function of “TSS Health Solutions” or “Transport Shared Services”. The primary judge found that Ms Samassa had given the following explanation of Transport Shared Services (TSS) (quoted at PJ [58]):

…they managed – basically the Sonic and that whole relationship around medical – the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport – so the – our worker’s compensation, for instance, is under that shared services. A lot of our functions with them – Sydney Trains – come under Transport Shared Services.

49    The primary judge relied upon this evidence to find at PJ [59] that TSS was a “group of persons who provided services to Sydney Trains and possibly to other New South Wales agencies that provided transport services, including services relating to medical assessments of employees or potential employees”. There is no challenge to this finding.

50    On 1 December 2017, Mr Lesser who, as noted above, apparently held the position of Senior Health Solutions Coordinator Injury & Claims Management at TSS, sent an email to Ms Zidan. A portion of the email stated:

I am coordinating this referral.

I left a message on your mobile earlier as I would like to discuss a couple of issues with this case before we can determine course of action with regards to FFD request.

51    Neither Mr Lesser nor Ms Zidan were called to give evidence. There was no evidence as to what the issues alluded to in Mr Lesser’s email were or what was involved so as to enable Mr Lesser to “determine [the] course of action with regards to [the] FFD request”.

52    On 20 December 2017, a person named Bill Chami with an email address containing “@transport.nsw.gov.au” sent an email to Ms Annovazzi that stated:

As discussed, could you please provide a medical note/briefing from your treating physician regarding the use of Dexamphetamine and the conditions of ADHD and also Asperger Syndrome.

This info can be addressed to Dr Casolin should you wish to keep the content in confidence.

53    The email then set out the email addresses of Dr Casolin and Ms Vlahos.

54    Curiously, Mr Chami provided no position description in his email signature and it is not clear whether he was employed by Sydney Trains or TSS.

55    On 8 January 2018, Ms Zidan sent an email to Mr Lesser seeking an update.

56    On 9 January 2018, a series of events occurred:

(a)    at 8.56 am, Mr Lesser responded to Ms Zidan, stating:

This is currently sitting with Janene Browning and Dr Casolin at Sydney Trains.

We are awaiting further direction from Janene once Ms Annovazzi’s original health assessment has been reviewed by Dr Casolin.

It should be noted at this juncture that, although Dr Casolin gave evidence before the primary judge, he did not suggest or indicate in his evidence that anything was “sitting with” him in relation to Ms Annovazzi’s FFD Assessment or that, at the time this email was sent, he was reviewing her “original health assessment”.

(b)    at 2.24, pm Ms Zidan sent an email to Dr Casolin (copying Ms Browning, Ms Vlahos and Mr Lesser) stating in part:

Hi Janene / Dr Casolin – Can you please provide an update.

(c)    Dr Casolin responded at 3.19 pm, stating:

I believe that this case is awaiting an FFD and I was under the impression that the business had sent the referral to TSS.

(d)    Ms Browning then responded at 3.36 pm by email sent to Dr Casolin and Ms Zidan, and copied to Mr Lesser, Ms Vlahos, and Ms Elizabeth Ball (the latter person used an “@transport.nsw.gov.au” address but it is otherwise unclear who she is). The email stated:

I have spoken with TSS about the FFD request, and agree with their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period. We have been provided with conflicting information from the employee regarding this matter.

A request was send [sic] to Sonic to ask the provider is [sic] declarations were made by Ms Annovazzi during the medical.

Sonic have identified that you have a complete copy of the initial medical assessment. Can you please confirm the following:

•    Did she indicate ADHD

•    Did she indicate Asperger Syndrome

•    Did she indicate the use of Dexamphetamine

Soula Vlahos has also asked for Ms Annovazzi to provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Asperger Syndrome. She was advised this information could be addressed to yourself.

This information will assist us in making the relevant determination in relation to the full disclosure at medical as well as the appropriate management of the employee.

57    As we have noted, Ms Browning was not called to give evidence. Nor was Ms Vlahos.

58    It is important to note that in her email, Ms Browning states that “[w]e have been provided with conflicting information from the employee regarding this matter”. None of the evidence adduced by Sydney Trains explained this statement. Ms Annovazzi had given evidence, which was accepted, that she had disclosed her conditions and that she had been prescribed dexamphetamine to Dr Kumar at her medical assessment during the recruitment process (as referred to at [24] to [27] above). The text message exchange quoted at [35] shows that she told Mr Bellia that she had informed Dr Kumar that she had ADHD in the medical assessment. This evidence was accepted and Mr Bellia’s evidence that she said otherwise was rejected. It was also not in dispute that no one else asked Ms Annovazzi about these matters, including what she had disclosed, to whom, and when.

59    Ms Samassa deposed in her Affidavit that:

11.    Shortly after I commenced employment, Janene Browning, Lead Business Partner, Human Resources spoke to me about a Trainee Train Driver who was still within probation, and it had been discovered that she had been dishonest in her pre-employment medical information disclosure.

12.    Ms Browning informed me that when the issue was discovered, and she was sent for a fit for duty (FFD) assessment, Transport Shared Services stated that the matter should be dealt with as failure to declare during probation. Ms Browning agreed.

13.    Ms Browning sought my approval for termination. The reason that my approval was sought was because I had the appropriate delegation to make that decision. In making my decision, I relied upon the information that was provided to me by Ms Browning. I recall that Ms Browning provided me with the Application, Pre-Employment Health Assessment and a Briefing Note prepared by Daniel Bellia dated 9 November 2017. A copy of that Briefing Note is exhibited at “TS-4”.

60    Ms Samassa further deposed that:

17.    In the Termination Letter, I stated “you failed to disclose this information prior to being employed and provided incorrect information on both your employment application form and during your medical assessments”. I made this statement relying on the information provided by Ms Browning.

61    Ms Samassa further deposed in her Affidavit that:

18.    I did not make the termination decision lightly. The reason I did not recommend that the Applicant be sent off of [sic] a FFD was because honesty is so important for all roles, but particularly in safety critical roles…

62    Although this last part of Ms Samassa’s evidence suggested that it was open to her to decide whether Ms Annovazzi could be sent for an FFD Assessment, in her evidence before the primary judge, she accepted that this determination had already been made and she did not turn her mind to that question at all. Her evidence in this regard was as follows:

Well, in the case of the applicant, you didn’t consider, did you, whether the applicant should be assessed again, did you?---No.

You didn’t make – who made that decision?---So the – by the time the decision came to me, it was – it was decided that it was a – it was a conduct issue. And the decision with me was whether the conduct issue of not disclosing correct information on the forms was something that we would terminate someone for.

Yes. I’m just asking, in your affidavit - - -?---Yes.

- - - you say that Transport Shared Services stated the matter should be dealt with as a failure to declare during probation?---Yes. That’s correct.

So they made that decision; is that right? Not you?---They made the decision. Correct.

And who’s Transport Shared Services?---That would be – they – they managed – basically, the Sonic and that whole relationship around medical – the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport – so the – our worker’s compensation, for instance, is under that shared services. A lot of our functions with them – Sydney Trains – come under Transport Shared Services.

All right. So I just want to be clear, the decision that this applicant, Ms Annovazzi, would not be assessed for fitness, that was done by them, not by you, or did you have to – what you were asked to approve is ..... what you say in your affidavit was with a non-disclosure was dishonest or not. Is that your role?---Yes. Correct. Was the non-disclosure – so when it came to me, they had said it was a conduct issue because she hadn’t disclosed it on the medical form and they were the ones – Transport Shared Services are the ones who deal with Sonic.

Yes?---And, so, they’re, kind of, the overarching – the – you could say. And then the decision was this applicant – or now employee – had not been honest on the medical form.

All right. And had they not decided to refer it to you, is it your understanding – and, of course, then I can object to it - - -?---Yes.

- - - but she could have just been referred to for assessment, for example?---Yes.

Yes. But that wasn’t done in this particular case because somebody made a decision that that ought not to be done?---Correct.

And do you know who made that decision?---No.

Thank you?---But I – I mean, I could have made the – I could have – yes. No.

63    Ms Samassa was also challenged by Ms Annovazzi in cross-examination as to whether, in fact, a determination had already been made by Sydney Trains that Ms Annovazzi had been dishonest or provided incorrect information before Ms Samassa came to make any final decision as to termination. The relevant exchange was as follows:

Would you mind reading out paragraph 11, please?--- Shortly after I commenced employment, Jan[e]ne Browning, the business partner in human resources spoke to me about a trainee train driver who was still within probation and it had been discovered that she had been dishonest in a pre-employment medical information disclosure.

And the phrasing of that paragraph indicates that the allegations of dishonesty were being treated as objective fact; correct?---I don’t - - -

Or at least, that’s how you understood it?---Do you want to rephrase the question for me? That there was no subjective interpretation required.

MR SECK: I object .....

MS ANNOVAZZI: Sorry, I will rephrase.

The phrasing of this paragraph indicates that a determination had already been made as to whether or not dishonesty had happened; do you agree?---Yes.

So a determination had been made?---That – that you hadn’t answered the information correctly? Yes?---Yes.

So a determination had been made by Jan[e]ne Browning that that was the state of affairs?---With the information she had, yes

64    Ms Samassa also gave evidence, in response to questions asked by the primary judge, that even in the case of employees engaged during a probationary period, an investigation would be conducted and there would be a discussion with the relevant employee. She gave the following evidence:

So what are the procedures? What were the procedures, to your knowledge, at that time, that one would follow when dealing with this sort of problem with an employee who is on probation?---Well, firstly, we would investigate, obviously, what had happened.

Right?---And investigate – we wouldn’t just make a decision. We would investigate the evidence and then make a decision and have a discussion with the employee around the reasons why we were terminating the employment.

65    Ms Samassa gave evidence that in cases involving dishonesty including where the employee was on probation, Sydney Trains would talk to the relevant employee but she accepted that this did not occur in Ms Annovazzi’s case. This evidence was as follows:

Well, you discussed it after the decision – is your process that you discuss it before a decision is made or after a decision is made?---Well – well, once the decision is made.

And what is it – so, in this case, there’s an allegation of dishonesty - - -?---Yes.

- - - and your procedures, you say, do not involve, at least, making an inquiry of the person who’s ..... of being dishonest. Is that the procedure at State Rail – at Sydney Rail, is it? Sydney Trains?---Sydney Trains. Well, if someone is under probation and we have evidence then we would make a decision based on that evidence.

Without talking to the person who’s said to have been dishonest. Is that the procedure? I just want to know - - -?---Yes.

- - - if that’s your standard procedure?---Well, no, we would talk to the person. So my understanding - - -

All right. All right. So an allegation is of dishonesty and I’m just simply asking- - -?---Yes.

- - - before you made the decision to terminate on the grounds of dishonesty, did you have any discussion with - - -?---No, I did - - -

- - - Ms Annovazzi?--- - - - not. No.

66    Ms Samassa’s evidence in this regard was unclear but she appeared to accept that in cases of alleged dishonesty it made no difference whether the employee was on probation or not, and that Sydney Trains would first conduct an investigation and also make enquiries with or speak to the relevant employee before proceeding to terminate that person’s employment. Ms Samassa was not re-examined on this or any other topic.

67    In further evidence given by Ms Samassa in relation to the same topic, she said:

Okay. So what is the process if a person is not on probation?---Well, if a person is not on probation, you would follow the process of – the same process. In this case, we would capture it, refer it to – I’ve forgotten what they’re called. The investigative unit who would investigate it. So I couldn’t investigate it.

So a person not on probation warrants greater scrutiny of their case?---Sorry, I’m not sure what you’re asking.

Well, there’s a unit that would investigate it if a person - - -?---Not on probation.

And that person would, therefore, receive greater scrutiny on their case?---Yes.

68    And, later:

So you agree that either a probationary or non-probationary employee was to be afforded due process?---I agree that we had to follow the – whatever our processes are, whatever that might be. Yes.

But the principles of due process or natural justice?---Yes.

For both probationary and non-probationary employees?---Yes.

69    Ms Samassa also gave evidence as to aspects of the functions and roles of TSS, as follows:

What is Transport Shared Services?---They’re services that work across all of transport.

Doing what?---Worker’s compensation, pay, various other services.

So certain universal functions required by different agencies within the transport cluster have these functions dealt with by a third party?---Not a third party.

Not a third – a specific group rather than duplicating - - -?---Correct.

- - - throughout each service?---Yes.

And Transport Shared Services provides these functions for Sydney Trains?---Yes.

70    Ms Samassa gave evidence that, although Ms Annovazzi had been referred to TSS for an FFD assessment, there was a “change of course” and that this was brought about by a decision made by TSS. Her evidence in this regard was as follows:

MS ANNOVAZZI: Ms Samassa, you said you believed the decision to change course was made when I was sent. By that you’re referring to the briefing note with a request for an FFD dated 9 November 2017?---Sorry, is that a – sorry, what was the question?

Confirming when you believe the change of course from an FFD became an integrity – failure to disclose matter?---My understanding was I don’t know the date, but, yes, when you were sent – when you were sent for an FFD.

So that would be relevant to Thursday, 9 November 2017, the briefing note?---No, it can – this is government. It can take a long time for something to happen.

How long?---It could – they could have come back, I don’t know, December/January, they could have come back and said – I – I don’t know.

So we don’t know when this decision was made?---No.

We don’t know who made it or why?---No. I do know who made it. Transport Shared Services made it. I know why they made it because of the non-disclosure of being on certain drugs and I know it was made following the being sent for a FFD. That’s what I know.

71    Ms Samassa also accepted in cross-examination that she did not speak to or verify any information with Ms Annovazzi prior to issuing the Termination Letter and relied upon the investigation conducted by Ms Browning. Her evidence in this regard was as follows:

And you did not verify any of this information with me prior to making the decision?---No.

And you didn’t verify any of this information with Mr Bellia before you made the decision?---No, that – I told you that wasn’t – that was Jan[e]ne Browning had done the – just investigation.

…

MS ANNOVAZZI: Why did you rely on Jan[e]ne’s investigation rather than conducting your own?---Because I was responsible for about 2800 employees, and what we have is we have HR managers who sit underneath us who are responsible for the different directorates. I cannot investigate every situation we have. That’s what their role is. My role is to take the evidence that have been put before me, the investigation that Jan[e]ne did, and then make a decision in consultation with Jan[e]ne the questions that you answered “no” to.

…

So the reason you didn’t verify this information yourself was because your role did not leave you sufficient time for a proper investigation?---No, that’s not correct. That – the reason I didn’t investigate it myself is because that was Jan[e]ne’s role to investigate it. She was responsible for providing the information to me, and then it was my responsibility to, in consultation with her – to make the decision.

…

Okay. So accepting that conducting the investigation was Ms Brown[ing]’s job, why didn’t you verify – why didn’t you put these allegations to me prior to making the decision and give me a chance to respond to them?---Can you just repeat the question?

Whose job was it to give me a chance to respond to these allegations before the decision was made: you or Jan[e]ne?---Jan[e]ne.

Did you verify she had done this?---I don’t recall.

72    As we have noted above, Ms Samassa was not re-examined.

The parties’ pleadings

73    Insofar as is relevant, in her Amended Statement of Claim (ASC), Ms Annovazzi pleaded at [9]-[12] that:

9.    By letter dated 30 January 2018, the Respondent terminated the Applicant’s employment, effective 1 February 2018 (“the Termination Letter”). The Termination letter was provided to the Applicant at a meeting on 31 January 2018 (“The Termination Meeting”).

10.     In the Termination Letter, the Respondent purported to terminate the Applicant on the basis of a failure to disclose pre-existing undiagnosed medical conditions and use of prescription medication.

11.     The Termination Letter does not specify the “pre-existing medical condition”, the identity of the “prescription medication”, or the alleged use thereof.

12.     The Respondent imputed to the Applicant to a disability (“the Imputed Disability”) in accordance with s4 of the Disability Discrimination Act 1992 (Definition of “disability”, subparagraphs (g) and (h)).

74    Ms Annovazzi claimed that Sydney Trains discriminated against her on the ground of her disabilities or imputed disabilities within the meaning of s 15(2) of the DDA by terminating her employment: ASC [14].

75    By its Defence, Sydney Trains relevantly admitted that it terminated Ms Annovazzi’s employment by the Termination Letter, but asserted that the Termination Letter “speaks for itself” and denied the allegations that it had imputed to Ms Annovazzi the “Imputed Disabilities” and further denied that it engaged in any unlawful conduct contrary to s 15(2) of the DDA: Defence at [10]-[12] and [14].

76    In its legal and evidentiary case before the primary judge, Sydney Trains’ position was that, in relation to that part of Ms Annovazzi’s case dealing with the termination of her employment, Ms Samassa was the sole decision-maker. Sydney Trains further contended that it was only Ms Samassa’s reasons that mattered in determining whether there had been unlawful discrimination contrary to ss 5(1) and 15(2)(c) of the DDA.

Sydney Trains’ submissions in the proceedings below

77    In its written outline of closing submissions (STCS), Sydney Trains contended that for the purposes of the DDA, it was necessary to identify the relevant decision-maker as the Court below was required to focus on that person’s state of mind. It contended as follows:

66.    Further, the provision must focus on the state of mind of the actual decision maker because of the principles of agency incorporated into the DD Act including:

(a)     by virtue of s 123(1) of the DDA, if it is necessary to establish the state of mind of a person of a body corporate in relation to a particular conduct, it is sufficient to show the conduct was engaged in by an employee or agent of the person within his or her actual or apparent authority and that the employee had the state of mind. State of mind includes knowledge, intention, opinion, belief, purpose, and reasons for the intention, opinion, belief or purpose: s 123(7) of the DD Act.

(b)     by virtue of s 123(4) of the DD Act, an employee or agent’s conduct is deemed to be the conduct of a person other than a body corporate for the purposes of establishing vicarious liability.

67.     Accordingly, as the analysis for the causation inquiry focuses on the state of mind of the actual decision maker within a corporate structure, it is appropriate to focus on the less favourable treatment that the actual decision maker would have given to the comparator to ensure the hypothetical comparison exercise is undertaken by reference to the same or ‘materially similar circumstances’ to the alleged unfavourable treatment.

68.    Unlike s 361 of the Fair Work Act 2009 (Cth), there is no presumption that Sydney Trains has taken adverse action because of the alleged proscribed reason. The onus remains at all times on Ms Annovazzi as the applicant to prove that the relevant persons on behalf of Sydney Trains treated her less favourably as pleaded.

78    Sydney Trains contended that in relation to the termination of Ms Annovazzi’s employment, Ms Samassa was the relevant decision-maker and therefore it was her conduct and state of mind that was relevant to whether it had engaged in unlawful discrimination contrary to s 15(2) of the DDA. It submitted as follows:

90.    The evidence shows that Ms Tracy Samassa, the then Director, People and Culture (Operations), Sydney Trains, made the decision to dismiss Ms Annovazzi from her employment. Ms Samassa had the delegation to make the decision. Based on the information available to Ms Samassa at the time of the decision, it was not unreasonable for Ms Samassa to form the view that it was appropriate to terminate Ms Annovazzi’s employment…

79    Sydney Trains further submitted that:

(a)    Ms Samassa signed the Termination Letter: STCS [91];

(b)    Ms Samassa had reviewed the relevant documents in making her decision on the basis that Ms Annovazzi had failed to disclose information before employment and provided incorrect information on her pre-employment Application Form and in her health assessments: STCS [92];

(c)    Ms Samassa had a sufficient and reasonable basis to form the view that Ms Annovazzi had provided “incorrect information” both on the Application Form and the Medical Questionnaire which formed the basis of her decision to terminate during the probationary period: STCS [102];

(d)    even though Ms Samassa did not use the word “dishonesty” or any cognate expressions in the Termination Letter, it was accepted that, as deposed to in her Affidavit, she made the decision to terminate Ms Annovazzi’s employment because of her “dishonesty”: STCS [105];

(e)    however, the primary judge was neither being asked nor required to make a finding that Ms Annovazzi was dishonest, as this was a belief held by Ms Samassa and, in any event, the onus fell on Ms Annovazzi to establish that her employment was terminated because of her actual or imputed disabilities: STCS [106]-[108];

(f)    relatedly, even if the primary judge was to find that Ms Samassa did not have a sufficient basis upon which to form a view that Ms Annovazzi had been dishonest, it did not follow that the action was taken for a proscribed reason: STCS [109]-[111];

(g)    the decision to terminate may have been objectively unjustified or incorrect or based on a factual mistake, but even if the reasons proffered by Sydney Trains were not accepted by the primary judge, it could not thereby be inferred that the decision was made for a proscribed reason: STCS [109]-[111]; and

(h)    Sydney Trains was not required to plead that Ms Annovazzi had been dishonest as it was not the case it had to answer: STCS [112]ff.

80    In advancing the above submissions, Sydney Trains stated that Ms Samassa had regard not only to the relevant documents but also the recommendations she had received from Ms Browning and TSS. Its submissions in this regard were as follows:

93.    In making her decision, Ms Samassa had regard to relevant documents and recommendations she received from Ms Browning including:

(a)     Ms Browning had informed Ms Samassa that Transport Shared Services and Ms Browning shared the view that Ms Annovazzi’s situation should be addressed as a failure to declare relevant information during probation rather than a fitness for duty issue. On the basis of this view, Ms Browning sought the approval of Ms Samassa, as the appropriate delegate, to dismiss Ms Annovazzi on the basis of her non-disclosure.

(b)     A briefing note prepared by Mr Daniel Bellia dated 9 November 2017 recording that Ms Annovazzi had told Mr Bellia that she takes Dexamphetamines to treat her ADHD condition and she suffers from Asperger’s Syndrome for which she had not received any formal diagnosis. Later in the note, Mr Bellia stated that “she did not declare either condition ADHD condition or Asperger’s Syndrome to Sonic health so these conditions were not taken into account whilst Trainee Annovazzi’s suitability to undertake Category 1 work as a train driver was being assessed”.

(c)     Ms Annovazzi’s application and pre-employment health assessment.

81    Sydney Trains also made the following submission:

102.    In light of the information before Ms Samassa, Sydney Trains submits that she had a sufficient and reasonable basis to form the view that Ms Annovazzi had provided ‘incorrect information’ both on her employment application and medical questionnaire which formed the basis for her decision to terminate her probationary employment. In particular, Ms Samassa had read the briefing note from Mr Bellia which stated that Ms Annovazzi acknowledged not disclosing her medical conditions and relied upon the recommendations made by Ms Browning and Transport Shared Services. Ms Samassa had also formed her own view based on reading the employment application and the medical questionnaire. As a human resources manager, Ms Samassa is not required to apply the standards of proof or be satisfied to the level of satisfaction that a court or tribunal may be required to meet in forming this view.

82    During the course of oral submissions, the primary judge asked a number of questions of Counsel for Sydney Trains, which informed his Honour’s findings. It is convenient to set out some of these passages. The primary judge sought to test the submission that Ms Samassa was the sole decision-maker in respect of the termination of Ms Annovazzi’s employment. The following exchange occurred:

HIS HONOUR: I can – well, I can understand that. But that argument has to be weighed against all the other matters about decisions having been made by people who are not before me.

MR SECK: Well, your Honour has to make that decision as to who the decision-maker is, and we would say that the - - -

HIS HONOUR: Well, who decided? Who decided that, instead of referring Ms Annovazzi for a reassessment, that she should instead be dismissed for dishonesty? Who decided that?

MR SECK: Ms Samassa.

HIS HONOUR: Well, are you saying - - -

MR SECK: The – hold on.

HIS HONOUR: Are you saying - - -

MR SECK: Just - - -

HIS HONOUR: Are you saying – are you saying that she actually considered whether she should be - - -

MR SECK: No. Well, your Honour asked me, as if it’s a binary decision, who made the decision to dismiss.

HIS HONOUR: Well, but somebody did, didn’t they, because what she was asked to approve was dismissing her for dishonesty. Is that not right?

MR SECK: No. The email, I think, that your Honour is referring to, which refers to TSS, referring it from a ..... converting the process from a fitness for duty process to an integrity or nondisclosure process didn’t specify termination of employment as an outcome. There was an assessment made by the senior human resources manager, Ms Jan[e]ne Browning, who’s the person to which I think your Honour is referring, that this might – this is an appropriate matter to consider to deal with as an integrity issue. But the ultimate decision rested on Ms Samassa as the person with the relevant delegation. She may have come to a different view to Ms Browning as to whether or not termination was the appropriate outcome.

HIS HONOUR: Why don’t we discuss with the emails? I’m not saying that because I’m disagreeing with you, but it will be helpful if we just go through the chronology, and I’m sorry if I’m taking you off your course, but I do want to – I just want to get the chronology straight. What’s the easiest affidavit?

83    Counsel for Sydney Trains then took the primary judge through the various emails. When addressing the email of 9 January 2018 from Ms Browning, a further exchange occurred as follows:

Mr Seck: …So if your Honour goes to Ms Browning’s email, which is at the bottom of 258, dated 9 January 2018 – and Ms Browning, your Honour will recall, is the Lead Business Partner Human Resources for Sydney Trains at the time:

I’ve spoken with TSS about the FFD - - -

HIS HONOUR: What’s TSS again?

MR SECK: Transport Shared Services. So the evidence is that – I think this came from Dr Casolin – Sydney Trains forms part of a transport cluster, and there are various agencies which fall under the umbrella of transport for New South Wales, one of which is Sydney Trains. Others include New South Wales Trains, Road and Maritime Services, etcetera. And Transport Shared Services provides what can be described as back office services for that transport cluster, including the management of medical conditions. So, in this case, Ms Browning had spoken to Transport Shared Services about the FFD request – fitness for duty request:

...and agree with their view that this should –

and I emphasise the word “should” –

be treated as a failure to declare on behalf of the employee during the recruitment process –

whilst we’ve been using the shorthand expression “integrity”, I think it’s important to note the actual language which is used in this email, which is a “failure to declare” – not dishonesty, not integrity, but failure to declare – and then it says –

rather than a requirement for a new FFD while the employee is still in the probation period.

So, critically, here, what Ms Browning is saying is that a relevant consideration is that Ms Annovazzi is still on probation.

HIS HONOUR: Well, she’s agreeing with a view formed by somebody else.

MR SECK: She is. So she’s - - -

HIS HONOUR: So she hasn’t – she’s not the one who has made – that has formed that view. She has agreed with someone else’s.

MR SECK: Well, she maybe forms her own view, which is - - -

HIS HONOUR: Well, she says she - - -

MR SECK: - - - shared by or - - -

HIS HONOUR: She agrees with their view.

MR SECK: I accept that, your Honour, but it doesn’t necessarily mean she didn’t form that view independently and simply agrees with the view. There are two views which are shared. But I agree with your Honour. This view was - - -

HIS HONOUR: And who’s “their”? Who are those people that we’re talking about here? Is that the – am I to assume it’s Dean Lesser? Vlahos Sula – I mean, the other recipients of this email? Is that what I’m to assume, or – to the extent you say – you might say it doesn’t matter. I suppose that’s what you’re going to submit. But, to the extent it is relevant, who are “they” within TSS who have formed this view?

MR SECK: When you say “agree with their view” – is that what your Honour - - -

HIS HONOUR: Yes, “their” – who’s “their”, within TSS?

MR SECK: I don’t know if it’s clear who within TSS has expressed that view, your Honour, and I don’t think it’s open to any inference that it was the people who were copied into the email.

84    There was a further exchange as to the making of the decision to terminate, as follows:

HIS HONOUR: A decision has been made that this should be treated – so the subject of this email is to how to proceed, given that this is how it should be treated, as a nondisclosure issue.

MR SECK: Well, it doesn’t say - - -

HIS HONOUR: There’s a reference there to conflicting information from the employee.

MR SECK: Yes, your Honour.

HIS HONOUR: And what is meant by that I’m not sure, apart from it being a reference to Ms Annovazzi having said that she had disclosed this at the assessment. And then – and this is a point of intense complaint, I understand, from Ms Annovazzi – is that, really, what’s being done here without telling her is to obtain information as to her precise condition so that a case – so an assessment can be made of the extent of her failure to declare. Isn’t that what’s being done here, or not?

MR SECK: I think the initial request wasn’t for that purpose, but I accept, your Honour, that this email would indicate that the further request for information which is made of Ms Annovazzi was also to deal with the question of the adequacy of the disclosure made at the medical assessment.

HIS HONOUR: And she’s not told about it - - -

MR SECK: I accept that - - -

HIS HONOUR: - - - at all.

MR SECK: - - - your Honour, and that’s the part which is less than satisfactory.

HIS HONOUR: I mean, I hope – I don’t know what the exact relevance of it all is. It can only be relevant to the extent to which I accept evidence given by the witnesses called by Sydney Trains what inferences are available to be drawn having regard to the fact that people who are involved in this process have not been called, and, of course, whether the inferences that Ms Annovazzi asked me to draw can be drawn. But what has happened, at this stage, is people who are before me have decided that this process should be dealt with as a nondisclosure issue, and information is being sought from Ms Annovazzi to help them determine the extent of it.

MR SECK: Well, your Honour says a decision has been made for it to be dealt with this way. As I said beforehand, it doesn’t use the word “decision”.

HIS HONOUR: Well, hold it.

MR SECK: It says - - -

HIS HONOUR: Sorry. Sorry – you tell me what word describes a view that something should be done in a particular way. How would you characterise that? That’s a resolution or a decision to follow a course of action, isn’t it?

MR SECK: That’s one way of characterising it, but a view can also be, “I have an opinion as to how it should be dealt with, but I’m not making the decision.” So the word “view” can also be read as, “I have an opinion, but someone else has to make that decision, ultimately” - - -

85    There was a further relevant exchange on the same topic as follows:

HIS HONOUR: And Ms Samassa says that what she was told by Ms Browning is that there has been dishonesty. That’s what she’s told. She looks at a briefing note. There’s no pretence to a full record being given. And then she makes the decision. And I’m asked to find that the sole decision-maker is Ms Samassa and, sure, it was a terribly poor process, but there you have it.

MR SECK: Yes. I accept that, your Honour. There you have it. It’s a - - -

HIS HONOUR: But it just seems to me that you can – I mean, this is a large organisation It just seems to me unappealing, if not wrong, that you can have a group of people involved in the decision-making, then paltry information is given to a human resources person who probably spends no more time than reading it, having been told this person is dishonest by, presumably, a trusted employee, and then signing off on it. And then the submission is made, “Well” – and on your submission whatever the reasons motivated the process that led to it is irrelevant. And, on that basis, any organisation can easily structure its affairs to never be found to have breached the law, to the extent that knowledge is a requisite of anything.

MR SECK: If the claim which is being – or the complaint which is being made is disability discrimination, it obviously has very specific requirements that need to be met. That doesn’t mean that there are not other laws which might regulate the process and result in the matter being dealt with more fairly than it should have been.

HIS HONOUR: It’s not a question of fairness. I’m really addressing the point of whose mind or minds are to be attributed to the decision-maker. Your submission is it’s Ms Samassa and, sure, it’s – we acknowledge it’s not a great process, but there you have it. My question is is it as simple as that or do I go further and say, well, the actual mind or minds is all the people who have been involved.

MR SECK: We would - - -

HIS HONOUR: And they haven’t been given to call evidence. I mean, I know I keep on repeating that, but – it may or may not be important, but the fact is they haven’t been and we really don’t know – well, I don’t know – really why it has been treated as a nondisclosure. And tell me if you say – Ms Samassa says that she decided it shouldn’t be dealt with as FFD, but on what basis does she say that? What’s the reason, does she say in her affidavit, that it shouldn’t be dealt with as an FFD? Does she give any reasons, apart from saying dishonesty is – trumps everything else?

86    In response to the last question, Counsel for Sydney Trains addressed the primary judge taking his Honour through the text of the Termination Letter. The exchanges between the primary judge and Counsel for Sydney Trains continued along a similar vein whereby his Honour was seeking to understand the decision-making process by reference to the evidence that had been adduced at trial.

The primary judge’s findings

87    The primary judge’s reasons as to who made, or was involved in, the decision to terminate need to be viewed by reference to his Honour’s identification of the evidence and findings as to the sequence of events that led to Ms Samassa preparing the Termination Letter and issuing it to Ms Annovazzi.

88    The primary judge particularly focussed on the email from Ms Browning dated 9 January 2018 as disclosing a significant turning point in the management of Ms Annovazzi’s employment. His Honour read the email as supporting a finding that by 9 January 2018, a person or persons within TSS had formed the view that Ms Annovazzi should not be referred for an FFD Assessment and instead the matter should be treated as a “failure to declare”, which essentially meant that it was a misconduct matter: PJ [66]. On Ms Samassa’s evidence, Ms Browning agreed with TSS’s assessment that the matter should be dealt with as “a failure to declare during probation”: PJ [74]. His Honour found that the matter was referred to Ms Samassa for her approval because, in her words, she “had the appropriate delegation to make the decision”: PJ [74]. It was found that by this time, it had already been decided that Ms Annovazzi would not undergo an FFD Assessment and that the matter was to be treated as what Ms Samassa described as a “conduct issue”: PJ [78].

89    Based on the evidence, the primary judge made a number of findings including that:

(a)    there was no evidence that identified the person or persons within TSS that Ms Browning, in her email of 9 January 2018, said had communicated to her “their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period”: PJ [66](a);

(b)    there was also no evidence that identified the material on the basis of which such persons within TSS formed these views, or the reason(s) they did so: PJ [66](b)-(c);

(c)    shortly after 15 January 2018, Ms Browning informed Ms Samassa that a decision had been made by a person or persons within TSS that Ms Annovazzi would not undergo an FFD assessment, and that, instead, Ms Annovazzi’s employment was to be terminated on the basis that she had dishonestly failed to disclose her true medical condition, which the primary judge defined as the “Purported Decision to Terminate”: PJ [86](a);

(d)    Ms Browning sought Ms Samassa’s approval of the Purported Decision to Terminate, and to give effect to that decision, if she approved of it: PJ [86](a);

(e)    there was no evidence that identified the person or persons who made the Purported Decision to Terminate, or the day on which the Purported Decision to Terminate was made, or the reason or reasons for which the person or persons made the Purported Decision to Terminate, or the matters on which the person or persons made the Purported Decision to Terminate, or the person or persons who communicated to Ms Browning the Purported Decision to Terminate, or when and by what means the Purported Decision to Terminate was communicated to Ms Browning: PJ [86](b);

(f)    in support of her request that Ms Samassa approve the Purported Decision to Terminate, Ms Browning provided Ms Samassa with the Medical Questionnaire, the Examination Report and the Briefing Note: PJ [86](c);

(g)    Ms Samassa read the three documents that Ms Browning had provided to her, and accepted as true the information that Ms Browning had communicated to her: PJ [86](d); and

(h)    Ms Samassa accepted the assertion that Ms Annovazzi had dishonestly withheld medical information and, on that basis, Ms Samassa approved the Purported Decision to Terminate, and gave effect to that decision by drafting and signing the Termination Letter: PJ [86](e).

90    These findings make it apparent that the primary judge sought to distinguish between the decision that Ms Annovazzi had been dishonest and this should be treated as grounds for termination (the Purported Decision to Terminate) and the legal act of giving effect to that decision by the Termination Letter prepared and issued by Ms Samassa. His Honour reasoned that the act of handing Ms Annovazzi the Termination Letter was the last step in a “series of decisions and events that constituted Sydney Trains’ dismissal of Ms Annovazzi from her employment”: PJ [123].

91    The primary judge found there to have been, “at the very least” the following decisions made in relation to Ms Annovazzi being dismissed from her employment (at PJ [123]):

(a)    by around 9 January 2018 a person or persons within TSS made the Purported Decision to Terminate, and Ms Browning was informed of that decision;

(b)    shortly after 15 January 2018 Ms Browning communicated to Ms Samassa the fact that the Purported Decision to Terminate had been made, and the purported reasons for which the Purported Decision to Terminate had been made;

(c)    Ms Browning communicated the information referred to in (b) to Ms Samassa for the purpose of requesting Ms Samassa approve the Purported Decision to Terminate and, once approved, to give effect to it by Ms Samassa composing a letter terminating Ms Annovazzi’s employment;

(d)    Ms Samassa satisfied herself it was appropriate that Sydney Trains terminate Ms Annovazzi’s employment for the reasons Ms Browning told her that the Purported Decision to Terminate had been made; and

(e)    Ms Samassa drafted and signed the Termination Letter to give effect to her approval of the Purported Decision to Terminate and, it may be inferred, gave the Termination Letter to Ms Browning to give to Ms Annovazzi.

92    The primary judge did not accept Sydney Trains’ submissions that Ms Samassa was the only person on behalf of Sydney Trains who made the decision to terminate Ms Annovazzi’s employment: PJ [124]-[125]. That was because his Honour did not accept Ms Samassa’s evidence to the extent that it implied that she considered whether Ms Annovazzi should not be referred to an FFD Assessment on the basis that Ms Samassa accepted that she did not make this decision and by the time she came to consider the matter it had already been determined to be a “conduct issue”: PJ [125].

93    Accordingly, the primary judge did not accept that Ms Samassa was the sole decision-maker: PJ [126]. The primary judge found that the principal decision-maker or makers was a person or persons within TSS who made the Purported Decision to Terminate, and whose identity or identities has or have not been revealed in the evidence: PJ [126]. His Honour reasoned that, if the Purported Decision to Terminate had not been made, Ms Browning would not have approached Ms Samassa for any approval, Ms Samassa would not have approved that decision, and Ms Samassa would not have given effect to that decision by drafting the Termination Letter, and providing that letter to Ms Browning for the purpose of Ms Browning giving the letter to Ms Annovazzi: PJ [126]. His Honour concluded that had the Purported Decision to Terminate not been made, Ms Annovazzi would have undergone an FFD Assessment, as requested by the Briefing Note: PJ [126].

94    The primary judge further found that, even though the evidence did not reveal whether TSS was an entity separate to Sydney Trains or not, it was the authorised agent, or the persons within TSS were the authorised agents, of Sydney Trains for the purpose of deciding whether Ms Annovazzi was to be referred to an FFD Assessment, or instead dismissed from her employment: PJ [127]. His Honour reasoned that this meant that the reason or reasons for which a person or persons within TSS made the Purported Decision to Terminate were attributable to Sydney Trains: PJ [127].

The parties’ submissions on appeal

95    In contending that the primary judge had erred in making findings as to the decision-maker, Sydney Trains advanced three primary arguments.

96    First, reflective of a theme that informed a number of its submissions on appeal, Sydney Trains contended that, where, as here, the alleged discriminator is a body corporate, the focus must be on the reasons of the person whose acts and state of mind comprised the alleged discriminatory conduct. In support of these contentions, Sydney Trains relied upon the decisions of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and the Full Court of this Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 to submit that, where a statute uses the words “because of”, in the case of a body corporate it is necessary to identify (a) the relevant decision-maker, and (b) the reasons and mental process actuating the decision made by that person.

97    Second, Sydney Trains challenged the primary judge’s findings of fact that Ms Samassa was not the sole decision-maker of the decision to terminate and that unidentified persons within TSS made the decision to terminate. Sydney Trains contended that evidence established that Ms Samassa had the sole responsibility to make the decision to terminate, she had the relevant delegation, she had prepared and signed the Termination Letter, she exercised independent judgment by considering relevant information in making her decision, and she denied that she was not the sole decision-maker. Sydney Trains further contended that there was insufficient evidence to prove that TSS had made the decision to terminate Ms Annovazzi’s employment and that the email from Ms Browning dated 9 January 2018 did not support such a finding.

98    Third, Sydney Trains challenged the primary judge’s finding that TSS had been appointed as an “authorised agent” to make the decision to terminate Ms Annovazzi’s employment. Sydney Trains contended that the relevant statutory provisions governing Sydney Trains and TSS indicate that TSS did not have the statutory function to decide whether to dismiss Ms Annovazzi. It was submitted that the primary judge erred by failing to refer to these statutory provisions and in relying upon principles of “corporate agency” in finding that TSS was the authorised agent of Sydney Trains. Sydney Trains argued that the principles of corporate agency had to be adapted in the case of statutory corporations. It also submitted that the primary judge erred by failing to refer to s 123 of the DDA and that there was no evidence to support the finding that TSS or its employee(s) had actual or apparent authority so as to be an agent of Sydney Trains for the purpose of s 123.

99    Sydney Trains contended that it was a corporation constituted under the Transport Administration Act 1988 (NSW) (TA Act): see Division 4 of Part 3B. It pointed out that the Chief Executive of Sydney Trains is the person who has the authority to manage and control the affairs of Sydney Trains, which may be delegated to other persons: ss 36H(1) and 36K(1) of the TA Act. It was submitted that TSS formed part of TfNSW and provided, among other things, corporate and shared services to public transport agencies, including in relation to medical assessments: s 3E(1) and Sch 1, item 1(i) of the TA Act; PJ [59]. It was contended that TfNSW is a corporation with separate functions to Sydney Trains and is not an agent or emanation of Sydney Trains.

100    In response to these contentions, Ms Annovazzi submitted that the primary judge’s relevant findings as to Sydney Trains’ decision-making in relation to her dismissal reflected the application of orthodox principles of attribution as reflected in s 123 of the DDA. It was submitted that Ms Samassa had merely “rubber stamped” the decision and this reflected the evidence she had given at trial including that, as she held the relevant delegation, her approval was sought to give effect to the decision. Ms Annovazzi contended that these findings were made by the primary judge with the advantages of having been the trier of fact at first instance. It was contended that it was open on the evidence to find that TSS and Ms Browning had “materially contributed” to the dismissal decision in the sense referred to by the Full Court in Wong v National Australia Bank [2022] FCAFC 155; 318 IR 148 at [28]-[39].

101    Ms Annovazzi further submitted that, by reason of s 3E(1) and Sch 1, item 1(i) of the TA Act, TSS, which formed part of TfNSW, has a statutory function of providing corporate and shared services to public transport agencies. It was submitted that, as a result, there could be no question that TSS was acting within its actual or apparent authority when providing this service to Sydney Trains and was also acting as its agent in that it was acting at its request and for its benefit by virtue of these functions.

Consideration

The focus on the identification of a decision-maker

102    Both in the proceedings below and in the appeal, Sydney Trains emphasised the necessity for the identification of the decision-maker for the purpose of determining whether there had been unlawful discrimination in relation to the termination of Ms Annovazzi’s employment. Sydney Trains focussed its arguments in this way because it contended before us (as it did below) that where, for the purpose of the DDA, the alleged discriminator is an entity that is a body corporate or, as in this case, a statutory corporation, it is necessary to identify the person or persons whose acts and state of mind are said to have given rise to liability on the part of that entity.

103    In addressing Sydney Trains’ contentions, it is critical not to lose sight of or be distracted from the statutory text. In the present case, relevant to the termination of her employment, Ms Annovazzi’s case relied upon the interaction between ss 5(1) and 15(2)(c) of the DDA. Section 15(2)(c) makes it unlawful for an “employer to discriminate against an employee on the ground of the employee’s disability” by “dismissing the employee”. Relevantly, s 5(1) provides that for the purposes of the DDA, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of disability of the aggrieved person if, because of the disability, the discriminator treats the person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. Further, s 10 of the DDA provides that where an act is done for two or more reasons, and one or more of those reasons is the disability of a person (whether or not it is the dominant or substantial reason for doing the act), then, for the purposes of the DDA, the act is taken to be done for that reason.

104    It will be apparent from the interaction of these statutory provisions that it will be necessary to identify the acts and conduct of the alleged discriminator, as well as the reasons for those acts and conduct. In Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92, Gleeson CJ considered that the applicable provisions of the DDA are concerned with the “true basis” of the conduct in question: at [13]. The plurality stated at [236] that, relevantly, “…the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability?” (emphasis in original). Although this articulation of the “central question” was strictly obiter, it has been cited with approval and applied in other decisions including by previous Full Courts: see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [27] and [41] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point); and Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [58] and [84] (Black CJ, Tamberlin and Sackville JJ).

105    When determining the “why”, the plurality in Purvis stated at [225] that s 5(1) presents two questions:

(i)    How, in those circumstances, would the purported discriminator have treated a person, without [the person’s] disability?

(ii)    If [the person’s] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the person’s] disability?

(Emphasis in original).

106    To speak of a “decision-maker” in the context of the DDA and thereby seeking to confine the analysis of the “central question” to the reasons of that decision-maker may be the correct approach in bright line cases where it is found that a single person has engaged in the relevant acts or conduct that are alleged to have been unlawful. In such cases, that person’s reasons for so acting may be determinative. However, such an analysis is more problematic where there is either no single decision-maker, or the relevant acts or conduct are the product of a collaborative or other group-based decision-making process. Further, as has been recently observed in a different statutory context, even where there is a single identifiable decision-maker, it may be “‘artificial to maintain any bright-line distinction’ between the decision-maker’s reasons, and contextual influences that might bear on it, being a fact-dependent analysis”: Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; 292 FCR 34 at [201].

107    Furthermore, to focus on the “reasons of that decision-maker” may fail to appreciate that the statutory expression “because of” is not a substitute for motive, purpose or effect, even if they may bear on the question of determining “why” the discriminator so acted in the way that he or she did: Purvis at [148]-[166] (McHugh and Kirby JJ dissenting, though not on this point), [236] (Gummow, Hayne and Heydon JJ); Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [28], [30].

108    Accordingly, the nomenclature or language of “a decision” or “decision-maker” may be apt to distract attention from the “central question”. The answer to the “central question” will require identification of the act, acts or conduct that are said to have been discriminatory and an examination as to why they were done or engaged in. That answer will be very much fact dependent in each case, and may in some cases require the examination of the acts and conduct, and reasons (which bear on the question though they are not a condition of or determinative of the answer), beyond those of a notional or putative decision-maker. In the case of body corporates, the resolution of these questions will fall to be determined by the application of orthodox common law principles of attribution: Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. While it was once the case that a corporation’s acts and state of mind had to be that of the “directing mind and will” of that corporation, that position as to the rule of attribution has since been attenuated by the judgment of Lord Hoffman in Meridian. As Edelman J noted in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [98] (Allsop CJ and Besanko J concurring), Lord Hoffman held that it was not necessary to ask whether one particular officer was the directing mind and will of Meridian because it “is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company” and the relevant rule of attribution must be tailored to “the terms and policies of the substantive rule”, which in a particular case depend on the construction of the particular statutory provision of attribution: citing Meridian at 511-512.

109    Section 123 of the DDA provides a statutory mechanism to facilitate proof of the attribution to a body corporate of the acts, conduct and states of mind of its directors, employees or agents when acting within the scope of their actual or apparent authority: Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 at [30] (Feutrill J). It is important to bear in mind that s 123 does not deem liability. Like cognate provisions in other statutes, it provides for an expanded range of persons whose conduct and state of mind might be attributed to a body corporate than would otherwise exist under the common law, while also preserving common law doctrines: Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 at [49]-[50] (Charlesworth J); see also Fair Work Ombudsman v Al Hilfi (No 2) [2013] FCA 16 at [13]-[25] (Besanko J).

110    In some cases, resolution of the question may also require the application of the common law principles of aggregation, as well as those of attribution. That is because it may be the case that the conduct or state of mind of a body corporate in relation to that conduct may be aggregated across more than one person. As Wootten J stated in Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 at 485:

… Corporations must be held responsible through those who act on their behalf, whether an act is performed by one person or by a number. Doubtless there may be problems of mixed motives as between individuals, as indeed there often are within an individual, but it is better for the courts to grapple with the true facts, however difficult that may be, than to shut out the realities of corporate action by arbitrary rules of evidence.

111    This passage was cited in Krakowski v Eurolynx Properties Ltd [1995] HCA 68; 183 CLR 563 at 582-3, where Brennan, Deane, Gaudron and McHugh JJ stated:

A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them [footnote 40: See Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 at 485; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170] …

(Emphasis added and footnotes included in square brackets).

112    It will be seen that the passage extracted above from Eurolynx is specifically referable to a division of functions between different officers. The application of Eurolynx has not been without complexity. More generally, there is greater complexity to the rules of aggregation where there is no “one transaction”. These matters were addressed by Edelman J in Kojic at [134]-[149] (Allsop CJ and Besanko J concurring). In Kojic, Allsop CJ stated at [63] that “[t]he question of aggregation will generally arise in a particular statutory context or in the context of a particular substantive rule”. His Honour further stated at [64]-[66] that:

[64]    In the context of the legislation here, s 84 of the Trade Practices Act provides a framework for the establishment of the state of mind of a company that was intended to extend, not limit, the liability of corporations: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 739; 76 FLR 455 at 475. I would not necessarily see s 84 as limiting the application of any relevant general law principle concerning aggregation or attribution of knowledge.

[65]    I agree with Edelman J that the central question against which the analysis takes place is whether or not the conduct of the Bank was unconscionable. That enquiry may, and generally will, require understanding what the Bank knew as a corporation. I agree with the analysis of Edelman J of Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 130 ALR 1 and with his criticisms of the relevant parts of the reasons of the Western Australian Court of Appeal in Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1.

[66]    Depending upon the relevant statutory context or substantive rule, it may be that separate information held by an officer or agent may be aggregated with information held by another if there is a duty and opportunity to communicate it to the other: Re Chisum Services Pty Ltd (1982) 7 ACLR 641 at 649–50; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 at 161–2; and Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 at [182]. The relevance and legitimacy of any such approach may well depend upon the statutory context or the relevant substantive rule. In any event, here, neither Mr Coombe nor Mr Barnden was under a duty to inform the other, or anyone else, of what he knew.

113    In the context of the DDA, as we have indicated, the text of s 5(1) by the inclusion of the words “because of” calls for an examination of why the alleged discriminator acted in the way that is alleged. Where there is an identifiable person who engaged in the acts or conduct that are alleged to have been discriminatory, it will be that person’s acts, conduct and state of mind which may be dispositive of the case in hand. However, as we have stated, it may not always be the case that the acts and conduct, or the relevant state of mind, of the alleged discriminator reside in a single person constituting the governing mind of the entity or upon application of ss 123(1) and (2) of the DDA. These are matters not without considerable complexity.

114    There are some parallels with authorities examining whether a corporate employer has engaged in adverse action for the purpose of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), though those decisions must be approached with a great degree of caution given that they arise in a different statutory context and in circumstances where a rebuttable presumption arises under s 361 of the FW Act. This is particularly so given intention or motive are not determinative of why a person acted as she or he did for the purposes of establishing discrimination: Watts at [28]; Purvis at [148]-[166] (McHugh and Kirby JJ dissenting, though not on this point), [236] (Gummow, Hayne and Heydon JJ). However, one similarity between the two statutory schemes is the necessity to establish that action was taken “because of” a proscribed reason or reasons.

115    In actions brought under Part 3-1 of the FW Act, the relevant question will be whether the employer has taken adverse action “because of” an exercise or proposed exercise of one or more workplace rights (as defined), whereas under s 5 of the DDA the question is whether the alleged discriminatory act or conduct was engaged in “because of” the disability of the aggrieved person. The Full Court in Wong explained that:

[25]    … the word “because” as it appears in s 340 of the FW Act directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action. Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who “played the decision-making part in the joint administrative activities” culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.

[26]    The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.

116    Although their Honours did not expressly refer to the principles of attribution or aggregation, it would appear to us that their Honours’ reference to an examination of the acts and states of mind of the human actors who played the “decision-making part” that culminate in a particular act constituting adverse action sits conformably with the “one transaction” principle in respect of which attribution and aggregation is permissible. We see no reason why the possibilities to which the Full Court adverted in Wong do not also apply where it is alleged that an entity that is a body corporate or statutory corporation has discriminated against an aggrieved person. However, otherwise, as noted above, the combined effect of ss 5(1), 10 and 15(2)(c) of the DDA is that it falls to be determined whether the alleged acts or conduct of the corporate discriminator were engaged in for the reason of, or reasons including, the aggrieved person’s disability. Where the acts or conduct of the alleged discriminator reside in one person, the enquiry may be straightforward, but the Court needs to remain alert to the possibility that others may have engaged in the acts or conduct, and the reasons of the persons who played a part in the alleged conduct. Furthermore, contrary to the evolving authority in the adverse action context, as described above, the place of motive or intention is very different in the discrimination law context.

Ms Samassa was not the sole decision-maker

117    Sydney Trains challenges the finding made by the primary judge in the PJ at [126] that Ms Samassa was not the “sole decision-maker” in relation to the decision to terminate. Sydney Trains contended that the evidence before the primary judge established that Ms Samassa was the sole decision-maker in relation to the dismissal of Ms Annovazzi. We do not agree.

118    As we have set out above, the combination of ss 5(1), 10 and 15(2)(c) requires an examination of the acts that are said to have been discriminatory. Relevantly, for s 15(2)(c), that act here was the dismissal of Ms Annovazzi. The evidence before the primary judge established that the decision to terminate was given effect to by Ms Samassa as she had the legal authority to do so by reason of her delegation. However, it did not follow from that fact that she was the sole person whose acts and conduct were attributable to Sydney Trains in relation to the dismissal.

119    We have set out Ms Samassa’s evidence in some detail. She deposed in her affidavit and gave evidence before the primary judge that TSS and Ms Browning had already determined that Ms Annovazzi would not undergo an FFD Assessment, and that they had also already determined that Ms Annovazzi had been dishonest in that she had failed to make correct declarations. Her evidence was unequivocal that this determination had already been made by TSS and Ms Browning. Ms Samassa also stated that, as these determinations had already been made, she did not turn her mind at all to whether Ms Annovazzi should be referred back for an FFD Assessment and did not consider that it was open for her to do so. It was her evidence that by the time the matter was referred to her, Ms Browning was seeking approval for the termination of Ms Annovazzi’s employment and the reason for this was that she held the appropriate delegation.

120    Sydney Trains’ closing submissions in the proceedings below accepted that both TSS and Ms Browning had recommended that Ms Annovazzi’s employment be terminated. However, the evidence went beyond the making of a recommendation, and established that TSS and Ms Browning had in fact made determinations or decisions that required the approval of Ms Samassa. The effect of the evidence, which the primary judge accepted, was that, although Ms Samassa made the formal and legal decision to terminate Ms Annovazzi’s employment, the effective decision to that end had already been made. That is not to say that Ms Samassa did not make the decision to terminate or turn her mind to whether she should give effect to that decision, but rather that there was a process of decision-making that involved persons other than Ms Samassa in respect of which her act of preparing and signing the Termination Letter was the final step.

121    Viewed this way, we discern no error in the primary judge’s finding that Ms Samassa was not the sole decision-maker in relation to the termination of Ms Annovazzi’s employment.

Person or persons within TSS were involved in the decision-making process

122    Sydney Trains challenges the findings made by the primary judge at PJ [86(a)], [123(a)] and [126] that a person or persons within TSS made the decision to terminate Ms Annovazzi’s employment and were the principal decision-makers.

123    Sydney Trains’ contentions proceed on a mischaracterisation of the primary judge’s findings. The primary judge did not find that a person or persons within TSS made the decision to terminate Ms Samassa’s employment. Rather, the primary judge found that, shortly after 15 January 2018, a person or persons within TSS had made a decision that Ms Annovazzi would not undergo an FFD Assessment: PJ [86(a)]. The primary judge reasoned that the effect of making that decision was that Ms Annovazzi’s employment “was to be terminated”: PJ [86(a)]. This was not a finding that the person or persons within TSS had made the decision to terminate, but that termination was to be the consequence of the decision made that Ms Annovazzi would not undertake an FFD Assessment. It was this determination that the primary judge defined as the “Purported Decision to Terminate”.

124    The primary judge’s description of the decision made by TSS as the “Purported Decision to Terminate” is somewhat unclear. It may be that his Honour in fact meant that the person or persons within TSS had made the substantive or effective decision to terminate. We consider this to be what the primary judge intended to convey by the defined phrase or descriptor “Purposed Decision to Terminate” because, on his Honour’s findings, once the decision had been made that Ms Annovazzi would not be referred to Sonic Health for an FFD Assessment, the natural effect of that was that Ms Annovazzi’s employment would be terminated. In our view, this conclusion correctly accords with the evidence, which was as follows:

(a)    Mr Bellia had recommended that Ms Annovazzi be referred for an FFD Assessment;

(b)    Dr Casolin had also stated that Ms Annovazzi should be referred for an FFD Assessment;

(c)    Ms Zidan had been proceeding on that basis and was seeking that TSS make arrangements for such an assessment to occur;

(d)    it followed that, up until 9 January 2018, the position that prevailed was that Ms Annovazzi would be referred for an FFD Assessment;

(e)    however, at some point on 9 January 2018, the position changed and a decision was made that Ms Annovazzi would not be referred for an FFD Assessment and instead the matter would be treated as one involving a conduct issue on the basis that Ms Annovazzi had been dishonest.

125    Consistently with the above, Ms Samassa’s evidence (which we have recited above) was that, by the time Ms Browning approached her, it was for the purpose of Ms Samassa “approving” the decision or determination that had already been made that the matter was a “conduct” issue and that Ms Annovazzi had failed to provide correct information.

126    However, we consider that the primary judge erred in finding that the person or persons within TSS were the principal decision-makers in relation to Ms Annovazzi’s dismissal. That is because, for the reasons we have addressed above, we consider that the person or persons within TSS were part of the decision-making process in respect of which Ms Browning and Ms Samassa also played a part. The evidence established that, while TSS considered that Ms Annovazzi should not undertake an FFD Assessment, Ms Browning agreed, and, eventually, Ms Samassa made the legal decision to terminate. We consider that the correct characterisation of the evidence is that each of TSS, Ms Browning and Ms Samassa were involved in the one decision-making process which culminated in the dismissal of Ms Annovazzi’s employment.

127    Further, we do not consider that the evidence (such as it was) established that TSS had actual or apparent authority to make the effective decision to terminate, as opposed to providing advice about such a decision. The evidence established that TSS was a shared agency of TfNSW, which was a separate corporation to Sydney Trains. However, TSS provided, among other things, services in relation to the management of FFD assessments, workers’ compensation and other employment related matters to other corporations including Sydney Trains. This accords with the functions of TSS as specified in the TA Act (s 3E(1) and Sch 1, item 1(i)). The evidence before the primary judge was that Sydney Trains referred an aspect of the management of Ms Annovazzi’s employment to TSS. The evidence further established that TSS provided advice to Sydney Trains, which Sydney Trains accepted, as to whether Ms Annovazzi should undergo an FFD Assessment or whether the matter should be treated as a conduct issue. In particular, the evidence was that:

(a)    Mr Bellia’s Briefing Note was addressed to “Health Solutions” which appears to have been part of TSS;

(b)    Ms Zidan had referred the matter to TSS to organise an FFD;

(c)    Ms Browning’s email of 9 January 2018 indicated that TSS had formed the view that Ms Annovazzi should not be referred for an FFD Assessment;

(d)    Ms Samassa deposed in her affidavit that TSS stated that the “matter should be dealt with as a failure to declare during probation”.

128    In our view, this evidence supported a finding that Sydney Trains sought the advice and recommendations of TSS, but stopped short of establishing that Sydney Trains had authorised TSS to make an actual decision in relation to the termination of Ms Annovazzi’s employment. To that end, although we consider the primary judge was correct to find at PJ [127] that TSS were the “authorised agents” of Sydney Trains “for the purpose of deciding whether Ms Annovazzi was to be referred for a[n] FFD assessment”, we consider that the primary judge erred in finding that TSS were “authorised agents” in respect of the decision to dismiss Ms Annovazzi from her employment.

129    As a result of the conclusion we have reached that each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi, it follows that the matter will need to be redetermined on that basis. It would follow that the questions as to the appropriate comparator and causation will need to be redetermined by reference to our finding. In this regard, the central question will be why the dismissal occurred having regard to the objective circumstances of the decision-making process.

130    We do not consider that we are in a position to determine these matters for ourselves. We have received no submissions from the parties as to the determination of the case on this basis. There are factual findings made by the primary judge that will bear upon these matters including, for example, the primary judge’s statement at PJ [54] that his Honour was not prepared to find that those involved in the decision to terminate Ms Annovazzi’s employment were not unaware of the text messages between Ms Annovazzi and Mr Bellia, and the statement in Ms Browning’s email of 9 January 2018 that Sydney Trains had been provided with conflicting information from Ms Annovazzi.

Conclusion

131    Accordingly, the following aspects of the Decision-Maker Grounds, namely grounds 3(a), (b) and (d), succeed and, in combination with our findings below regarding ground 3, this will require that the first declaration of the primary judge be set aside.

THE COMPARATOR GROUND – GROUND 1

Overview

132    By this ground, Sydney Trains contended that the primary judge erred in identifying and applying the correct hypothetical comparator for the purpose of s 5(1) of the DDA in relation to the claim that:

(a)    Dr Casolin had directed Ms Annovazzi be removed from the driver training course and her being kept out of that training until 9 January 2018;

(b)    Dr Casolin had requested Ms Annovazzi to furnish a medical report from her treating medical practitioner; and

(c)    Ms Samassa dismissed Ms Annovazzi.

133    Sydney Trains contended that the primary judge erred in the determination of the correct hypothetical comparator by:

(a)    failing to take into account as a relevant circumstance that Ms Annovazzi had not disclosed that she was being treated by Dr Frukacz and had been prescribed to take dexamphetamine despite the questions asked of her in the Medical Questionnaire (First Comparator Contention);

(b)    failing to take into account as a relevant circumstance that the relevant “decision-makers” had information that Ms Annovazzi had been prescribed and had taken dexamphetamine (Second Comparator Contention);

(c)    taking into account as a relevant circumstance that Ms Annovazzi had asserted that she had disclosed to Dr Kumar her ADHD and that she had been prescribed medication. Sydney Trains submitted that none of this information is, or could have been, relevant to Sydney Trains’ treatment of Ms Annovazzi because her asserted disclosures were not known to Dr Casolin or Ms Samassa, and could not have been known by TSS (Third Comparator Contention);

(d)    failing to find that a relevant circumstance was that Sydney Trains’ decision-makers believed on the material available to them that Ms Annovazzi had been “dishonest” in that she had disclosed incorrect information during the medical assessment with Sonic Health (Fourth Comparator Contention);

(e)    failing to have regard to the statutory scheme regulating rail safety which classifies train drivers as Category 1 Safety Critical Workers and requires rail operators to undertake a health assessment to determine a person’s fitness to perform the inherent requirements of the rail safety position based on the applicant completing a questionnaire regarding their medical history including conditions and medications (Fifth Comparator Contention);

(f)    failing to take into account as a relevant circumstance that, at the time of her dismissal, Ms Annovazzi was in her probationary period, during which Sydney Trains was assessing her suitability for ongoing permanent employment (Sixth Comparator Contention);

(g)    wrongly having regard to a theoretical circumstance that Sydney Trains would have undertaken enquiries of a hypothetical comparator and therefore would have no reasonable or rational basis for concluding that the comparator had been dishonest and therefore would not have dismissed that comparator (Seventh Comparator Contention).

134    Sydney Trains contended that, in the identification of a hypothetical comparator:

(a)    the only characteristics or features that are to be attributed to that comparator and the surrounding circumstances of the impugned treatment are those that are known to the “decision-maker”;

(b)    the decision-maker must hold the same genuine beliefs about the comparator as they held in respect of the person with the disability.

135    It will be immediately evident that Sydney Trains’ contentions in relation to the determination of the correct hypothetical comparator were tied to the beliefs held by and matters within the knowledge of the “decision-maker”, which it contended was Ms Samassa, in relation to Ms Annovazzi’s dismissal, and Dr Casolin, in the case of the removal of Ms Annovazzi from the driver training course. Given that we have concluded that Ms Samassa was not the sole decision-maker in relation to the conduct constituting Ms Annovazzi’s dismissal, and that this conduct was the product of a process involving TSS, Ms Browning and Ms Samassa, the determination of the appropriate comparator will need to be reconsidered in light of our conclusions. What we say below about these matters is intended to assist in the redetermination of these matters by the primary judge and to formally deal with each of Sydney Trains’ contentions as to the characteristics that were attributed to the appropriate hypothetical comparator by the primary judge.