FEDERAL COURT OF AUSTRALIA

Gordon v Commonwealth of Australia [2008] FCA 603

DISCRIMINATION – disability discrimination – applicant offered employment by Australian Tax Office as GST Field Officer based in Launceston on condition that should he be found unfit for employment the offer would be withdrawn – applicant commenced duties and embarked on training program – respondent subsequently advised of applicant’s high blood pressure reading (hypertension) at medical examination – respondent withdrew offer of employment – later testing showed applicant affected by “white coat syndrome” (elevated blood pressure reading caused by anxiety reaction to testing) – respondent relied on defence under s 15(4) of Disability Discrimination Act 1992 (Cth) – claim for reinstatement – claim for damages included (i) difference between earnings from termination to date and hypothetical earnings at ATO (ii) difference between anticipated future earnings and hypothetical earnings at ATO (iii) expense incurred on house purchase and loss of capital appreciation

Held:

1.         The respondent had withdrawn the offer of employment because of the applicant’s imputed disability of hypertension and thus discriminated against him contrary to s 5(1);

2.         Within the meaning of s 15(1)(c) the applicant was an “employee” of the respondent and was “dismissed”;

3.         For the purposes of the s 15(4) defence it is the imputed, not actual, disability which is relevant; but it is the imputed disability viewed in the light of the circumstances known to the employer at the time, objectively considered;

4.         The inherent requirements of the particular employment included driving frequently and sometimes for substantial distances, however the 16 week training period involved much less travel and virtually none in which the applicant would need to drive alone;

5.         Appropriate testing at the time of the applicant’s assessment would have revealed much lower blood pressure; hypertension problems could have been resolved by medication well before the end of the training period.  The s 15(4) defence failed;

6.         Reinstatement would not be ordered;

7.         Expenses relating to the purchase of a house in Launceston, together with loss of capital appreciation, would not be a subject of compensation;

8.         The difference between earning to date and earnings the applicant would have received at the ATO would be allowed;

9.         The difference between earnings in a hypothetical career at the ATO and estimated actual future earnings would not be allowed;

10.       There would be an award for mental anguish and the non-economic aspects of loss of employment;

11.       There would be an award of interest under s 51A of the Federal Court of Australia Act 1976 (Cth)

WORDS AND PHRASES – “employee”, “dismissal”

Disability Discrimination Act 1992 (Cth) ss 4, 5, 15

Federal Court of Australia Act 1976 (Cth) s 51A

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(4)

Supreme Court Rules 2000 (Tas) r 5A

Cosma v Qantas Airways Ltd (2002) 124 FCR 504 cited

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 cited

IW v City of Perth (1997) 191 CLR 1 cited

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 referred to

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 cited

Power v Aboriginal Hostels Limited (2003) 133 FCR 254 followed

Purvis v New South Wales (2003) 217 CLR 92 applied

Waters v Public Transport Corporation (1991) 173 CLR 349 cited

X v The Commonwealth (1999) 200 CLR 177 applied

MARK ALEXANDER GORDON v COMMONWEALTH OF AUSTRALIA

TAD 12 of 2005

HEEREY J

6 MAY 2008

MELBOURNE (HEARD IN HOBART)

THE COURT DECLARES THAT:

1.                                          In dismissing the applicant on 8 May 2003, the respondent committed unlawful discrimination.

THE COURT ORDERS AND DIRECTS THAT:

2.                                          There be judgment for the applicant against the respondent in the sum of $121,762.

3.                                          Submissions as to costs be filed and served by the applicant within seven days of delivery of judgment and by the respondent seven days thereafter; any submissions in reply be filed and served by the applicant within seven days thereafter.

4.                                          Questions of costs be decided on the papers.

5.                                          Liberty to apply is reserved.

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

REASONS FOR JUDGMENT

CONTENTS

1                     The applicant Mr Mark Gordon applied for a position as a GST Compliance Officer, APS 4 level, in the Launceston office of the Australian Taxation Office.  The ATO made him an offer of employment, subject to, amongst other things, a condition that should he be found unfit for employment the offer would be withdrawn or his employment terminated.  He commenced work but shortly afterwards the ATO withdrew the offer.  His medical assessment on behalf of the ATO had revealed a blood pressure reading of 200/110.  On reassessment some three weeks later the reading was 200/125.

2                     Mr Gordon claims that he has been subject to discrimination in employment contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth), which makes it unlawful for an employer to discriminate against an employee on the ground of the employee’s disability by dismissing the employee.

3                     There was disputed evidence as to the true level of Mr Gordon’s hypertension, particularly in light of the fact that he appears to have been subject to a well known medical condition known as “white coat syndrome”.  This refers to the anxiety people often have when undergoing medical tests which results in a higher blood pressure reading than would otherwise be the case.  However, while hypertension is undoubtedly a “disability” as defined in s 4 of the Act (“(e) the malfunction… of a part of the person’s body”) the term includes a disability that “(k) is imputed to a person”. 

4                     For the purpose of the Act, according to s 5(1), discrimination occurs

if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

The disability imputed to Mr Gordon was that of a person with a serious level of hypertension. 

5                     Section 15(2)(c) relevantly provides:

It is unlawful for an employer… to discriminate against an employee on the ground of the employee’s disability…

…

(c) by dismissing the employee…

6                     The respondent relies on the defence provided by s 15(4) of the Act which provides:

Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a)  would be unable to carry out the inherent requirements of the particular employment; or

(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

7                     The respondent says that one of the inherent requirements of this particular employment was extensive driving and to carry out those requirements Mr Gordon would require services or facilities which would impose an unjustifiable hardship on it.  The job had other physical demands, to which reference will be made, but driving was the critical requirement.

8                     In the s 15(4) context the question arises whether it is the actual or imputed condition of Mr Gordon at the time of dismissal that is relevant. 

Mr Gordon’s career

9                     At the time of the alleged discrimination in May 2003 Mr Gordon was a single man aged 39.

10                  He held the degrees of Bachelor of Economics (Hons) (University of Tasmania 1993) and Master of Business Administration (Bond University 1991).  He had qualified as a Certified Practising Accountant in 1997.  He had two outstanding units to complete towards the Graduate Diploma in Applied Finance and Investment (Securities Institute).

11                  From 1985 to 1995 he worked for the Department of Veterans’ Affairs in various clerical positions with the ranking of ASO 2 and later ASO 3.

12                  From May 1995 to February 1996 he was with the Insurance and Superannuation Commission at ASO 5 level.  His duties included financial and prudential analysis and auditing superannuation funds.

13                  From February 1996 to December 2001 he was employed by the ATO, initially at ASO 2 and later ASO 4.  Towards the end of this period he worked in the Interpretation and Compliance Section completing audit investigations, examining work related expenses and issuing Private Binding Rulings.

14                  From July 2001 until April 2003 he conducted a business as a private tax agent from his home in Hobart.

Offer of employment

15                  On 22 March 2003 the ATO advised Mr Gordon by email that his application to work as a GST Field Officer at APS 4 level in Launceston had been successful.  This was confirmed in a letter headed “Offer of Ongoing Employment” dated 10 April. 

16                  The Offer was stated to be subject to the conditions set out in the letter.   One of these was:

All new ongoing employees are required to undergo a medical examination to satisfy the ATO of their fitness to undertake the duties for which they have been selected.  You would have already attended a medical assessment prior to commencing duty.

Should you be found unfit for employment, this employment offer may be withdrawn or your employment terminated.

17                  Another condition stated there would be a probation period of four months.  During this period the employee would receive training.  If the employee did not make satisfactory progress during the probation period, employment would be terminated.

18                  The Offer enclosed a “Medical Evaluation” issued by Health Services Australia.  This document explained that with the introduction of the GST the new position of “GST Field Officer” had been created within the ATO.  Relevantly for present purposes it included the following:

Does the doctor decide whether I get the job or not?

No.  The doctor will complete the form providing to Australian Taxation Office all the medical information about you that is relevant to your ability to do the job.  While the doctor will certainly provide medical recommendations regarding your fitness to do the work, the decision on your employment remains with Australian Taxation Office.

…

Medical Adviser Guidance Notes

…

In reality very few medical conditions are an absolute contra-indication to employment.  However, there are certain GST Field Officer tasks such as driving in which conditions pre-disposing to sudden loss of consciousness, poor vision or hearing could pose a health risk;

…

The following procedure is suggested for borderline cases:

·        Discuss the case with an Occupational Physician in order to further clarify the fitness for work issues;

·        Discuss the case with the referring ATO officer.  ATO have indicated they will provide the doctor with guidance as to criteria against which an applicant is to be assessed if they do not meet the recommendation ie whether reasonable adjustments can be made.  A work performance can be requested;

·        The applicant’s treating doctor may clarify health issues;

·        Referral for assessment with an Occupational Physician if approved by ATO.

19                  General Information enclosed with the Offer included as requirements of the position:

·        Concentrate for prolonged periods in order to drive safely and perform client interviews in country and metropolitan regions…

·        Transport computer, printer and printed literature to/from ATO regional office, vehicle and client premises with the use of carrying aids such as a trolley…

·        Physically enter client premises which may involve walking up steps, stairs, ramps or uneven terrain which could be slippery.

20                  Under the heading “Specific Work Hazards” it was noted that clients may react unfavourably and that field officers entering “difficult client” premises alone could be harassed.  Further it was said:

The need to drive for prolonged periods outside of work hours means fatigue is a specific work hazard…

21                  The Offer stated that, if Mr Gordon wished to accept it, he would need to complete and return a “Notification of Acceptance” and other enclosed forms.  The evidence does not disclose whether this happened.  The case of the respondent is that the offer of employment was withdrawn.  As will be discussed below, for the purposes of s 15(2)(c) it does not matter whether an offer of employment was withdrawn before acceptance or whether a contract of employment which had come into existence was terminated by the respondent.

Assessment by Dr Payne

22                  On 22 April 2003 Mr Gordon was examined by Dr Ian Payne of Health Services Australia.  Immediately prior to the assessment Mr Gordon filled out a questionnaire.  In answer to the question “Do you or have you ever had high blood pressure?” he ticked “yes” and added “Have had reading of 160/110 doctor left untreated”.

23                  Dr Payne took a blood pressure reading of 200/110.  In his report he stated that he told Mr Gordon “that he would speak to the ATO about it”.  Mr Gordon’s weight, taken by Dr Payne’s nurse, was recorded as 138.8 kg.

24                  Mr Gordon was aware of the reading.  He understood the purpose of the examination was to assess his fitness for the job.  He was asked:

And Dr Payne told you that in his view you weren’t fit for that job? --- He said I couldn’t start yet and he also said he would talk to the Tax Office about my situation.

25                  On the same day Mr Gordon saw his General Practitioner, Dr Michael Mee, who recorded a reading of 190/105.  Dr Mee prescribed some medication for blood pressure treatment which Mr Gordon commenced on 25 April.  (The evidence disclosed many blood pressure readings for Mr Gordon both before and after his examination by Dr Payne.  These are set out in a schedule to these reasons.  The medical practitioners referred to are Dr Mee and Dr Russell Cooper (General Practitioners), Dr Payne, Dr Tomas McArdle (General Practitioner) and Dr Warrick Bishop (Cardiologist).)

Employment and termination

26                  On Dr Payne’s record of the examination of 22 April there is a notation:

Has not provided ATO contact details at [sic] day of examination.

27                  Mr Ian Godden was the director of GST staff in Tasmania and as delegate of the Commissioner of Taxation had the authority to withdraw the offer to Mr Gordon (or, presumably, terminate his employment).  He swore an affidavit on which he was not cross-examined.  Mr Godden deposed that on 28 April the training program for newly appointed field officers commenced in Launceston.  He continued:

Although Mr Gordon had not satisfied the medical precondition, he was allowed to commence training as there had been no indication that he would not be certified medically fit for work and, on the assumption that his employment would proceed, we did not want him to miss out on any training.

28                  On 28 April Mr Gordon commenced duties at the ATO office in Launceston. 

29                  Some time later (it is not clear exactly when, but it must have been no later than 8 May) the ATO received Dr Payne’s report, which stated that Mr Gordon was not fit for his employment duties.

30                  On 8 May Mr Gordon was called away from training to a meeting room where his site manager and team leader were present.  He was handed a letter dated 8 May signed by Mr Godden.  The letter stated that the offer of ongoing employment was subject to the condition, amongst others, that he undergo a medical examination to satisfy the ATO of his fitness for duty as an Australian Public Service employee.  The ATO had now received a report on the examination performed by Dr Payne.  On the basis of this report

it has been concluded that you are not medically fit for duties you have been selected to carry out as an APS 4 GST Field Compliance operative in the APS.

The letter advised that the report was held by a named officer and was available for him to discuss with her.  The offer of employment was withdrawn. 

31                  On the same day Mr Gordon returned to Hobart.  On 9 May he visited Dr Mee who recorded his blood pressure at 170/105.  Dr Mee refused to provide Mr Gordon with a medical certificate for Centrelink on the grounds that he considered Mr Gordon to be fit for normal sedentary office duties and for interviews.  Dr Mee supplied a certificate to that effect.  Mr Gordon spoke to a delegate of the ATO who advised him that an appointment had been made on 13 May for a review with Dr Payne. 

32                  On 13 May Mr Gordon attended for a second examination by Dr Payne.  The blood pressure reading was 200/125. 

33                  On 15 and 19 May Mr Gordon had blood pressure readings taken as noted in the schedule.

34                  Dr Payne reported to the ATO in a letter dated 2 June.  He noted that he had seen Mr Gordon on 22 April with regard to his fitness for work as a GST Field Officer.  He was at that stage

deemed unfit for this work due to

1. Hypertension

2. Hashimoto’s disease (recently ceased medication and had not been monitored since then.  Thus although asymptomatic his thyroid status was unknown)

3. Inflammation of an ingrown toe nail

4. Morbid obesity

35                  He was referred to his General Practitioner for follow up.  Dr Payne noted that since the previous consultation Mr Gordon reported he had attended his treating General Practitioner with regard to the medical conditions mentioned above.  He had been on medication for hypertension with an increasing dosage.  His blood pressure had not at that stage stabilised.  His lipid studies were reasonable.  As to thyroid function, blood tests indicated a raised TSH.  He had been placed back on thyroxin tablets.  He had started to exercise and modified his diet.  He had arranged an appointment for removal of his toe nail the following day. 

36                  Dr Payne’s clinical findings were:

His Blood Pressure was still raised but I do recognise the anxiety provoking situation that he finds himself in.  However it is likely that it will take some further time to stabilise his blood pressure as he is still on increasing dosages.

He has reduced some weight now falling into the obese range not the morbidly obese.  This still remains a risk factor in control of his blood pressure, general health and well being and risk of physical injury.

His toe was less inflamed.

37                  Dr Payne thought Mr Gordon still had further to go with regard to stabilization of his blood pressure.  This remained a risk particularly with regard to the duties of the position and the driving component.  There was also the aspect that at that stage he could not say whether the potential side effects from the increased dosage of medication would adversely affect his driving and work ability.  The thyroid disease however would not prevent work at that time.  Mr Gordon’s weight was an added risk but would not necessarily prevent him carrying out his duties.  The treatment to his toe nail was likely to give him somewhat restricted mobility for about two weeks from the procedure.  Dr Payne’s recommendation was in these terms:

I would consider that due to his hypertension that he remains unfit for the full duties of the position at this time.  The likelihood is that he will become fit for work with stabilization of his hypertension on appropriate medication, providing that there are no adverse effects on the duties from the medication.  Continued loss of weight should have a positive effect on general health, well being and mobility.  His toe condition should respond to appropriate treatment.

38                  On 4 June Dr Payne spoke by telephone to Mr Andrew Hunter of the ATO to “clarify the information and risks identified in the report”.  Mr Hunter noted Dr Payne as saying that due to the nature of the role as a GST Field Officer, the issues surrounding control of weight, blood pressure (“currently ‘juggling’”), medication and their impact on driving, that if Dr Payne was employing him it would be for “office based but with modified duties due to health issues, medication etc”.  Medication had possible side effects and it would be a matter of trial to see which medication reacts best for him.  As to the “time frame for fitness”, Dr Payne said it was

unknown at this stage.  It has to do with personal approach to maintain weight loss, medication (etc) 

would be at least 1 month and possibly up to 6 months.

Dr Payne advised that he had spoken with Mr Gordon’s doctor who “had no issues” with the assessment that there are risks regarding Mr Gordon’s health.  In Dr Payne’s view it would only be worth reviewing again if Mr Gordon’s doctor provided advice that health issues were stabilised, medication was not causing problems and weight loss was maintained.  Dr Payne’s advice was that Mr Gordon “is a risk” and was “not suited at this stage (due to health issues) for field work; even office based duties would need to be modified to minimise this risk”.

39                  Also on 4 June Mr Gordon telephoned Mr Hunter advising amongst other things his lower blood pressure reading of 150/88 taken by Dr Mee on 2 June.

40                  On the same day the ATO wrote to Mr Gordon stating that on the basis of the advice of the reassessment conducted by Dr Payne it had been concluded that “you are not medically fit for the duties outlined as an APS4 GST Field Officer Compliance operative”.  It was confirmed that the offer of employment had been formally withdrawn.

41                  On 6 June Mr Gordon wrote to the ATO advising of his consultations with Dr Mee.  Amongst other things he said that Dr Mee had found his blood pressure on 9 May to be 170/105 and on 2 June 150/88 and that Dr Mee’s opinion on that date was

that while I was not fit for all the duties of the position I had applied for, I was fit to look for work and all that entails (applications, interviews etc).  He also considered that I was fit to carry out all the normal duties required in an office.

42                  In a report the following year dated 10 August 2004 Dr Mee confirmed his examination of Mr Gordon on 9 May 2003.  He stated he had made it clear to Mr Gordon that in providing a certificate stating he was “fit for sedentary work” and could drive a motor vehicle he was not expressing an opinion on his suitability for any specific employment.  In response to Mr Gordon’s solicitors’ enquiry whether on that day Mr Gordon was “fit to perform normal sedentary office duties and also to perform the tasks involved in procuring a job including travelling to appointments, preparing job applications and attending interviews” Dr Mee stated that he

agreed that he could perform tasks involving procuring a job etc as described in paragraph 2 of your letter.  There was an expectation that he would follow treatment and management advice for his medical problems.

In conclusion Dr Mee said

I do not and did not have an opinion on his suitability for any particular work position in dispute.

Treatment by Dr Cooper and Dr Bishop

43                  Mr Gordon consulted Dr Russell Cooper, a General Practitioner, who on 13 November 2003 wrote a letter of referral to Dr Warrick Bishop, a Cardiologist at the Calvary Cardiac Centre.  Amongst other things Dr Cooper recorded blood pressure readings by Dr Mee and himself (see schedule).  He noted that in his opinion, and that of Dr Mee and Dr McArdle, Mr Gordon was fit to work and drive a car.

44                  Dr Cooper noted that Dr Payne’s readings were a lot higher than the readings of Drs Mee, McArdle and himself around the same time which would suggest that Mr Cooper was “experiencing acute anxiety (white coat syndrome)”.  He found Dr Payne’s view that Mr Gordon’s improvement would be conditional on his experiencing no adverse effects from the medication “a bit perplexing”.  In Dr Cooper’s view if there were side effects from medication it was not Mr Gordon’s fault, rather the doctor’s choice of medication and that it was the treating doctor’s duty to find an anti-hypertension medication that is side effect free.

45                  Dr Bishop duly examined Mr Gordon on 26 November 2003 and sent Dr Cooper a report of the same date.  He enclosed an extract from Assessing Fitness to Drive: For Commercial and Private Vehicle Drivers, Medical Standards for Licensing and Clinical Management Guidelines published in September 2003 by the National Road Transport Commission.  These noted at p 44:

A person with hypertension consistently less than 200/110 (treated or untreated) may drive without license restriction and without notification to the DLA.  They should be reviewed by their treating doctor periodically regarding progression of the illness.

The criteria for an unconditional licence are NOT met

·        If the person’s sitting blood pressure is consistently 200/110 or greater (treated or untreated)…

46                  In Dr Bishop’s view several measurements of a high blood pressure would be needed to ensure that one was not dealing with simply a white coat phenomenon.  If constantly elevated blood pressure had not been documented then by the guidelines it would seem that the patient would not be unfit to drive.  If there were side effects from medication then this could interfere with driving.

47                  Dr Bishop thought that the blood pressure needed to be documented on several occasions to confirm the diagnosis.  Mr Gordon needed to be treated appropriately and shown to be tolerating the medication.  If he satisfied the criteria outlined in the fitness to drive guidelines, then there would be no reason for him not to drive and similarly he could see no reason why he would be unfit for work.  The time required for Mr Gordon to be sufficiently controlled from a hypertensive point of view was individual, although “it should have been able to be sorted out at most, within a couple of weeks”.

48                  On 5 February 2004 Dr Bishop arranged an ambulatory blood test for Mr Gordon.  This involved fitting a device which automatically records blood pressure readings over a 24 hour period.  Dr Bishop sent a report to Dr Cooper dated 31 March 2004.  He said that he was “pleased to see that this showed excellent blood pressure control over the 24 hour period”.  He had reassured Mr Gordon and did not need to see him again.  The total average was 111/70.

49                  Dr Bishop’s evidence at the trial was that the normal range of blood pressure in an adult male is around 120/80 or 130/80.  On a 24 hour blood pressure monitor 140/85 would be acceptable.

50                  Dr Cooper replied to Dr Bishop in a letter dated 27 April.  The letter contains an analysis of the readings.  The initial reading was 147/89 but then fell quite substantially over the 24 hour period with the average results “well within the normal range”.  Apparently on Mr Gordon’s first visit to Dr Bishop his systolic reading was 185 but that fell immediately to 150 on retesting.

51                  Dr Bishop’s view in a report dated 30 April 2004 was that Mr Gordon had a “significant ‘white coat’ affect”.  He said that it was fairly common for patients’ blood pressure readings to be spuriously raised when they were being tested by a doctor and that ambulatory blood pressure monitoring was a more reliable means of testing blood pressure in a group of patients who have significant variability due to a white coat effect.

Dr Robinson’s opinion

52                  The respondent tendered a report from Dr James Robinson, a Cardiologist.  Surprisingly for an expert witness relied on in Tasmanian litigation, Dr Robinson practices in Claremont – not the Hobart suburb but Claremont, Western Australia.  He did not examine Mr Gordon.  He reviewed various reports including those of Dr Payne, Dr Cooper and Dr Bishop.  He expressed the view that diastolic blood pressure of 110 mmHg was a medical emergency that required prompt investigation and treatment.  He would have admitted that person to hospital.  Once the patient settled down in hospital the white coat effect would become less obvious.  Tests should be conducted to exclude phaeochromocytoma and Conn’s Syndrome.  In the absence of those conditions the blood pressure could have been brought under control within a few days of aggressive management.  Mr Gordon would have been strongly advised to lose weight and provided with dietary advice.  He noted that Mr Gordon had a past history of a nervous condition, most recently affecting him during a return flight to Australia after his father’s death in Italy.  Mr Gordon, Dr Robinson said, responded badly to emotional stress.  Dr Robinson thought that there would be more stress in the GST job than “‘the white coat effect’ from well meaning medical staff”.  He thought Mr Gordon’s hypertension put him at risk of a heart attack or stroke, and his obesity put him at risk of developing diabetes.  He believed that

a major factor in improving his chance of longevity has been his exclusion from the stressful position as a GST Compliance Officer with the ATO.

53                  I am not persuaded that a Perth cardiologist can give any useful evidence about the stress or otherwise for somebody working as a GST Officer in the ATO office in Launceston. 

54                  As to Dr Robinson’s opinion about immediate hospital admission, Dr Bishop in cross-examination agreed that a reading of 110 had to be treated seriously, but in his 15 years of experience in managing high blood pressure he had not admitted a patient.  This was because of the availability of more powerful oral medications.

55                  I did not find Dr Robinson’s report of much assistance. 

Did the respondent discriminate against Mr Gordon on the ground of a disability (s 5(1))?

56                  As already mentioned, hypertension is a disability.  The respondent, on the advice of Dr Payne, imputed this disability to Mr Gordon.  The comparator for the purposes of s 5(1) is a hypothetical person who does not have hypertension but has Mr Gordon’s qualifications and experience and is applying for the position of a GST Field Officer in the Launceston office of the ATO.  There can be no doubt that such a person would have got the job and would not have had the employment offer withdrawn.  By withdrawing the offer of employment the respondent has treated Mr Gordon less favourably than it would have treated such a hypothetical person.  It did so because of the imputed condition of hypertension, which, it considered, made him unfit for the requirements of the particular position.  The respondent thus discriminated against Mr Gordon, within the meaning of s 5(1): Purvis v New South Wales (2003) 217 CLR 92 at [213].

57                  I do not accept the respondent’s argument that the offer was withdrawn, not because of Mr Gordon’s hypertension, but because he failed to meet one of the pre-employment conditions, viz, that he be certified fit for the duties of the position.  One cannot divorce the factual base from its legal characterisation.  Even if regard is had to the three other medical conditions mentioned by Dr Payne, there would still be discrimination because they are equally “disabilities” which would not be suffered by the comparator.  But viewed in a practical way, the inescapable conclusion from the evidence is that the real and operative reason for withdrawing the offer was Mr Gordon’s imputed hypertension.

Did the respondent discriminate against Mr Gordon by dismissing him (s 15(2)(c))?

58                  The respondent contended that it did not dismiss Mr Gordon, rather that it withdrew a conditional offer of employment when the condition was not satisfied. 

59                  Anti-discrimination legislation is to be given a “fair, large and liberal” interpretation rather than one which is “literal or technical”: IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.  From 28 April 2003 Mr Gordon was an “employee” of the respondent, however conditional the terms under which he was employed.  He attended at the ATO Launceston office, carried out such duties as were required of him (there is nothing to suggest the contrary) and received, or became entitled to receive, a wage or salary as long as he so attended.  During the period he was at the office the respondent would have owed him the common law and statutory obligations which employers owe to their employees.  The respondent would have been liable to any third parties for torts committed by Mr Gordon in the course of his employment.  Withdrawing an employment offer, in circumstances where Mr Gordon had already started work, and would have continued to work but for Mr Godden telling him to leave the premises that day, was within the concept of “dismissing” in s 15(2)(c). 

60                  Since s 15(1) make it unlawful to discriminate against a person on the grounds of disability in “determining who should be offered employment” (par (b)) or “in the terms or conditions on which employment is offered” (par (c)), it would be strange if someone like Mr Gordon who had actually started work would be in a weaker position and would have no protection against discrimination.

61                  I reject the respondent’s submission that Mr Gordon “commenced his employment under false pretences”.  The medical evaluation form ([18]-[20] above) made it clear that the doctor was not to decide whether Mr Gordon got the job.  The form was quite encouraging in holding out the prospect that, if any medical problems existed, their effect on employment could quite possibly be resolved to the satisfaction of the employee.  Mr Gordon was aware that Dr Payne would talk to the ATO.  Mr Gordon was not to know when this would happen.  In the meantime, according to Mr Godden, Mr Gordon’s commencing work was somewhat accelerated, apparently on the ATO’s initiative, because the training program was about to commence.

62                  I conclude therefore that Mr Gordon has made out a prima facie case of discrimination.  Before passing to the s 15(4) defence I should note that the Act does not require an intention or motive to discriminate; cf Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, with whom Deane J at 382 agreed, a case under comparable Victorian legislation.  There is nothing to suggest that Dr Payne, or Mr Godden and the other ATO officers, acted otherwise than in good faith.

Is actual or imputed disability the criterion for s 15(4)?

63                  In Power v Aboriginal Hostels Limited (2003) 133 FCR 254 Selway J held that it is the imputed disability which is relevant.  His Honour said at [15]-[18]:

15        The next question is whether the appellant is unable to perform those duties ‘because of his disability’.  That question was not addressed by the learned Federal Magistrate.  In my view the failure to address that question was an appealable error.  If the question had been addressed then there are two possibilities.  The first is that the ‘imputed disorder’ of depression is the relevant disability.  Alternatively, his actual condition of an adjustment disorder (from which he seems to have recovered) is the relevant disability.

16        The appellant’s submissions assumed that the relevant disability was the actual condition of the appellant at the time of his termination.  On that basis the appellant submitted that he could perform the inherent requirements of the position - indeed, he was doing so for the four weeks before his employment was terminated.  Consequently, he argued, s 15(4) of the DDA had no application.

17        On the other hand the respondent’s submissions assumed that the relevant disability was the imputed disorder of depression, notwithstanding that the appellant was not suffering from that disability.  On this basis the respondent argued that in light of the report of Dr Ducrou the appellant was unable to comply with the inherent duties of the position.

18        So far as my research reveals, there is no authority directly on point.  The definition of ‘disability’ in s 4 of the DDA purports to be an exhaustive definition, ‘unless the contrary intention appears’.  There is no obvious contrary intention disclosed by s 15(4).  Nor is there any obvious reason to imply one.  The DDA is principally directed to the elimination as far as possible of ‘discrimination against persons on the ground of disability’ in relevant areas (s 3 DDA).  It is not directed at achieving ‘fair outcomes’ as such.  Consequently what is prohibited is discriminatory behaviour based upon disability.  ‘Imputed’ disability is sufficient for this purpose.  What the DDA prohibited in this case was not the dismissal of the appellant for a reason which was wrong, but the dismissal of the appellant who had a disability (albeit an imputed one) in circumstances where a person without a disability would not have been dismissed.  When it is understood that the DDA is directed at the ground of discrimination (which includes imputed disability) and not ‘fair outcomes’ then there seems no reason to imply that ‘disability’ appearing in s 15(4) of the DDA does not include imputed disability.

64                  Additionally to his Honour’s observations, it can be said that it is likely that the word “disability” wherever it appears in s 15(4) is referring to the same thing.  Where first appearing, “disability” is obviously referring to the discrimination alleged against the employer seeking to rely on the defence.  If that discrimination was on the ground of imputed disability, then “disability” means imputed disability and the later expression “his or her disability” refers to the disability imputed to the employee alleging discrimination.

65                  Since s 15 as a whole is setting up a norm of conduct, it is to be read as addressed to employers as at the time they are contemplating potentially discriminatory conduct.  Subsections (1) and (2) tell employers what they must not do.  Subsections (3) and (4) tell them in what circumstances they may lawfully do what would otherwise amount to unlawful discrimination.  This suggests that what subs (4) is concerned with are circumstances known to the employer at the time.  However, consistently with the philosophy of anti-discrimination legislation (see [58] above), the criterion is an objective one – as is indicated by the reference to “all other factors that it is reasonable to take into account”.  The relevant circumstances include the nature of the imputed disability in the light of such medical investigation as may be reasonable and the availability of reasonable treatment.

What were the inherent requirements of the particular employment (s 15(4)(a))?

66                  Whether something is an “inherent requirement” of a particular employment depends on whether it is an essential element.  The inherent requirements include at least the ability to carry out the physical tasks encompassed by the particular employment but also matters such as having regard for the safety of other employees, the general public and the employee himself: X v The Commonwealth (1999) 200 CLR 177 at [31]-[35] per McHugh J.

67                  The requirements of the particular employment in question in the present case were described by Mr Godden.  In 2003 GST Field Staff were organised into six teams, three each in Hobart and Launceston.  The Launceston teams were based at an ATO office in that city.  The office was purely a GST Field Site.  No other ATO functions were performed at that site and there were no facilities for public contact.  When a taxpayer had to be seen, the officers would go out to the taxpayer’s place of business.

68                  Launceston teams were expected to deal with clients in the North of the State down to Ross, on the North West Coast and in the North East down to Bicheno.

69                  All Launceston staff were involved in field work in 2003.  The work was a mixture of audit and advisory visits.  The latter would be in response to a taxpayer’s request for a visit.  The Commissioner had given a public undertaking that the Office would contact the taxpayer within 72 hours of the initial request and complete the visit within 14 days.

70                  Management was trying to maximise field time with an aim of officers spending 80 per cent of their time in the field.   As it turned out, in 2003 officers in Launceston spent about 40 to 50 per cent of their time in the field, the remainder being taken up with training, team meetings, leave etc.  New APS 4 staff such as Mr Gordon would have to spend more time in the field than the average because their work would have required them to spend more time doing advisory visits than audits.

71                  Field officers were issued with a laptop and printer totalling 6.5 kg together with miscellaneous information booklets.

72                  Sometimes overnight stays were required in remote locations.

73                  Because so much work was done in the field there was a desk sharing arrangement in the office, ie one desk between four officers.

74                  The foregoing description is, however, subject to the particular requirements of the training or induction period for Mr Gordon and other officers starting with him.  The period was, as already mentioned, to commence on 28 April 2003 and extend over a period of sixteen weeks.  As Mr Godden deposed, the training period “was not all office based”.  But that rather suggests that, in contradistinction to the post-training regime, work outside the office would be the exception.  This inference is strengthened by the detail Mr Godden provides.  He deposed:

Training commenced on 28 April 2003 and on 20 May 2003 the trainees were required to travel to Hobart to undertake training until the 22 May and return for further training in Launceston on 23 May.  The following week they were then required to undertake training out in the field for one day.  The following week they had two days of field training.  And the following week three days in the field for training.  The field work during their training period could have been anywhere in the North of the State.  It depended entirely on where the cases were located.

75                  Thus virtually the whole of the first month was to be spent in Launceston.  This is confirmed by the timetable for the training program (exhibit AH).  For the rest of the training period, field trips appear in the program as “Buddy Days”.  As might be expected, trainees would not be sent into the field alone.  Mr Gordon would not necessarily have had to drive.

76                  I find that the requirements of the particular employment in this case, apart from the training period, included the ability to drive a motor vehicle frequently and sometimes for substantial distances.  The suggestion that somebody in Mr Gordon’s position could travel to places like Smithton and Ringarooma by bus or taxi is quite fanciful.  However, the position during the training period was significantly different, as discussed above.  It seems likely that Mr Gordon could have managed for that period without driving at all.

Would Mr Gordon be unable to carry out these inherent requirements (s 15(4)(a))?

77                  The onus is on the respondent to make out this defence.  It is plain that, as revealed by the ambulatory testing, Mr Gordon has been dramatically affected by white coat syndrome.  His average reading revealed by such testing in February 2004 was 111/70 although of course it does not necessarily follow that Mr Gordon’s true blood pressure in May 2003 was the same.  But Dr Payne accepted in cross-examination that as at 22 April 2003 he recognised that Mr Gordon might be suffering a white coat effect, and that his underlying blood pressure may have been well below what he recorded in the surgery.

78                  As to fitness for driving, Dr Payne, at the time he examined Mr Gordon, was not aware of the induction program.  He accepted in cross-examination that by 13 May 2003 if Mr Gordon was not doing extensive driving he would have considered him fit.  When the facts of the induction program were put to him, Dr Payne agreed that it did not involve extensive driving, particularly if Mr Gordon was getting a lift.

79                  Dr Bishop expressed the following opinions:

·        Up to 30 per cent of elevated clinical blood pressure measurements are attributable to white coat syndrome;

·        Mr Gordon suffered significant white coat effect;

·        An ambulatory test in May 2003 would have resulted in a white coat diagnosis and Mr Gordon would have been assessed as fit for driving;

·        It would be “extremely uncommon for people not to be able to drive or continue with their job due to medication issues”.

80                  Dr Bishop’s view as to the time needed to bring high blood pressure under control was in these terms:

Apart from the thiazide diuretics which can take several weeks to work, the other main groups of anti-hypertensives we use have an immediate effect which builds up as blood levels increase.  For the orally dosed medications that are routinely used, one would think that dosing over a period of five half-lives (roughly five days for most these medications) would provide substantial blood pressure effect. To that end, one would normally hope to get at least moderate control of the blood pressure within a matter of weeks and then finer control of blood pressure beyond that.

81                  Objectively considered, as at May 2003 the circumstances reasonably apparent were:

• It was at least possible Mr Gordon was affected by white coat syndrome and might have had a significantly lower underlying blood pressure than that found by Dr Payne;
• It was likely that ambulatory testing would have revealed a lower blood pressure;
• In any event, any elevated blood pressure which Mr Gordon suffered could have been brought under satisfactory control well before the time he would have been required to engage in extensive driving alone in his ATO work.

82                  The respondent has not established that Mr Gordon, by reason of his imputed (or indeed actual) hypertension would be unable to carry out the inherent requirements of the particular employment.  It is therefore not necessary to consider questions under s 15(4)(b) as to the “services or facilities” that would be required and any “unjustifiable hardship” on the respondent.  It can be said, however, that during the training period organising a lift for Mr Gordon to Hobart and return on 22 May 2003 and ensuring that his “buddies” would drive on subsequent training trips would not have imposed any unjustifiable hardship.

Relief claimed

83                  Mr Gordon seeks:

1.                  A declaration under s 46PO(4)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat such discrimination;

2.                  Reinstatement;

3.                  Compensation for loss in connection with the purchase of a house in Launceston;

4.                  Compensation for past and future loss of salary and superannuation;

5.                  Compensation for mental anguish;

6.                  Interest;

7.                  Costs.

Declaration

84                  It is appropriate to make the declaration sought.  However, I see no need for an order directing the respondent not to repeat such unlawful discrimination.  As explained below, there will be no order for reinstatement, so it is unlikely that there will be any opportunity for discrimination against Mr Gordon in the future.  The discrimination which occurred was not motivated by any animus on the part of the ATO towards Mr Gordon.  There is no reason to suspect that in general the ATO is unaware of its obligations under anti-discrimination legislation.

Reinstatement

85                  Mr Gordon seeks an order under s 46PO(4)(b) of the HREOC Act requiring the respondent to withdraw the termination of his employment and retrospectively reinstate him to a position within the ATO at APS 4 level.

86                  The rather complicated background to this issue is as follows.  At the time of the trial Mr Gordon was employed by the Retirement Benefits Fund, a statutory body which manages the superannuation of Tasmanian State Government employees.  He worked in a call centre answering queries.  After the evidence was completed, but before the written final submissions had been concluded (there were no oral final submissions), Mr Gordon applied for a position at the RBF as a Para Planner.  This is a kind of apprenticeship position which can lead on to appointment as a financial planner.  Mr Gordon has two remaining subjects to complete in order to satisfy the requirements for the professional qualifications for financial planning.

87                  On 29 February 2008 Mr Gordon’s solicitors wrote to the Court and the respondent’s solicitor advising that Mr Gordon had been successful in obtaining an appointment with the RBF as a Para Planner, commencing 10 March 2008, on a salary of $45,414 gross per annum.  The maximum salary payable could increase to $50,865 gross per annum after another five increment points.  The maximum level payable on the currently held position was $47,218 after another two increment points.  The solicitors advised that Mr Gordon no longer sought reinstatement.

88                  On 19 March Mr Gordon’s solicitors wrote to the Court foreshadowing an application to make further submissions and possibly call further evidence on the issue.

89                  On 20 March the respondent’s solicitor wrote advising that the respondent also would possibly wish to call further evidence.

90                  On 1 April Mr Gordon’s solicitors wrote advising that Mr Gordon now asked for retrospective reinstatement to the ATO, as originally sought.  They were no longer instructed to make further submissions or present further evidence.

91                  At a directions hearing on 22 April the respondent sought leave to call further evidence from an actuary in the light of Mr Gordon’s disclosure of his new employment position with RBF.  I refused the application.  I intimated that I would rely on what was said in the letter of 29 February as to Mr Gordon’s current employment.  Counsel accepted this.

92                  I do not propose to make an order for reinstatement.  Five years have passed since Mr Gordon left the ATO.  He now has permanent employment of his own choice.  According to Mr Godden, the position Mr Gordon had been offered at ATO in Launceston was not refilled.  In 2003 GST “as a business line” began contracting in numbers.  In the Victoria/Tasmania region only positions in metropolitan sites were filled, due to decreasing work demands.  Staff working in the remote sites such as Launceston were not replaced if they left and work targets for those “losing sites” were reduced so that there were enough staff at the relevant levels to undertake the required work.

93                  “Particular employment” means the actual employment the relevant employee was required to perform pursuant to his contract of employment, not the general status of an employee in the employer’s organisation: Cosma v Qantas Airways Ltd (2002) 124 FCR 504. Today the particular employment from which Mr Gordon was dismissed no longer exists.

House purchase

94                  On 1 May 2003 Mr Gordon entered into a contract to purchase a house at 9 Denis Drive, Riverside (a suburb of Launceston) for $142,500.  He paid a deposit of $5,000.  Settlement was due on 13 June 2003.  The contract was subject to Westpac Bank making available a mortgage to secure a loan of $150,000.

95                  After the ATO terminated his employment Mr Gordon advised Westpac accordingly.  Because he then failed the bank’s income test the loan application was refused.  An alternative buyer was found for the property in June or July 2003.  Mr Gordon’s deposit was retuned, but he claims the following losses:

In addition he claims a loss of value.  The property was valued by Brothers & Newton Pty Ltd of Launceston in May 2007, as at May 2003, at $250,000.  Apparently there was a real estate boom in Launceston.

96                  Mr Gordon said he bought the house because he “felt it was an essential part of making a full commitment to the job”.  He was also spending money to stay in a hotel without any support from the ATO and returned to Hobart (where he owned another house) at weekends.  He was told by agents that the market was “red hot”.  At the time he signed the contract he was aware of his high blood pressure reading but saw the risk of losing the job as “just so remote”.

97                  There was a considerable amount of cross-examination about the financial viability of the purchase, given Mr Gordon’s existing mortgage over his Hobart property, and whether it was feasible to let part of the Launceston property.

98                  However, I do not think any amount in relation to the house purchase is properly allowable as damages by way of compensation for any loss or damage suffered because of the conduct of the respondent: s 46PO(4)(d) of the HREOC Act.  There is no suggestion that the ATO was aware of, let alone encouraged, this purchase.  Any loss, either by way of out of pocket expenses or loss of a chance to make a profitable investment, arose from Mr Gordon’s rather precipitate decision to purchase and cannot, as a matter of commonsense, be attributed to the discriminatory conduct of the ATO: cf March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.

Salary and superannuation

99                  At the time of his termination Mr Gordon’s ATO gross salary was $42,351.

100               Following his termination he applied for the following positions;

101               As already noted, he obtained the last position with RBF and has been employed there ever since, more recently as a Para Planner.

102               Mr Gordon claims past economic loss being the difference between what he has earned and what he would have earned at the ATO.  The figures (net of tax) to 30 June 2007 are:

I have not been given any figures for the current financial year.  The current APS 4 salary, assuming a salary in the middle of the band, is approximately $44,000 net.  His current salary net would be approximately $37,000.  The difference is $7,000 per annum or $5,830 for the 10 months of the current financial year.  Adding that figure to the figure for the period to 30 June 2007 gives a result of $63,267.  Mr Gordon’s damages will include that figure.  Since all the calculations are on a net basis I believe it will not be necessary to gross up to allow for any tax payable by Mr Gordon.  Should it be necessary, however, I would receive further submissions on this point.

103               In 2003 and 2004 Mr Gordon received $8030 from Centrelink which he will be obliged to repay.  This amount will be included in his damages.

104               The future loss is problematical.  At the outset, it must be noted that, unlike the typical common law claim, this is not a claim for loss of earning capacity.  It is not alleged that what I have found to be the unlawful termination of employment had any effect on Mr Gordon’s physical or mental capacity to earn income.  Mr Gordon’s case is based on the loss of a hypothetical career with the ATO leading to retirement at 55, 60 or 65.  He postulates three possible levels, “Pessimistic”, “Expected” and “Optimistic”.  On the most optimistic scenario, he ends up as an Assistant Commissioner of Taxation based in Canberra. 

105               Both sides called actuarial witnesses, Mr Morley for Mr Gordon and Mr Byrne for the respondent.  There was little, if any, dispute between those gentlemen as to the methodology of calculation including such matters as discount rates.  The real problem is the validity of the assumptions underlying Mr Gordon’s case.

106               Assessing what is likely to happen in the future, or would be likely to have happened had not something intervened, is not a matter of scientific demonstration or proof.  Nor, unlike findings as to alleged past events, is it a case of all or nothing; 51 per cent probability win, 49 per cent probability lose: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643.  Nevertheless, the circumstances in the present case make it extremely unlikely that Mr Gordon, had it not been for the termination in May 2003, would have pursued a successful career with the ATO until retirement, let alone at the level he suggests.

107               First, without wishing to be hurtful to Mr Gordon, the inescapable fact is that, for whatever reason, he is not a high achiever.  On paper his qualifications are considerable.  He has an honours economics degree and an MBA from good universities.  He is a qualified accountant.  He has almost finished financial planning qualifications.  Yet the positions he has occupied up until now could be characterised as occupying a rank and salary towards the lower end of mid-level clerical/professional jobs.  Professional men or women in their mid-forties should be at or approaching their peak in terms of earnings and professional status.  If they haven’t got very far by this stage, things are unlikely to improve to any significant extent. 

108               Secondly, in the past Mr Gordon has not displayed any particular enthusiasm for a career in taxation.  He did not persist with the ATO in his earlier career (see [14] above).  Perhaps more importantly, in his recent job applications, both in the public and private sectors ([100] above), only one was tax-related.  The rest appear to have been for employment in the funds management industry.

109               Thirdly, and connected to the last point, it seems that if Mr Gordon was truly interested in a long term career in tax he would have been better off in the private sector.

110               Mr Byrne was Managing Principal of one of Tasmania’s largest accounting firms from 2001 until 2005.  He said that in Tasmania it was quite difficult to find good qualified staff at all levels and for some firms this was still the case during 2007, particularly for experienced taxation staff.  His firm employed staff from South Australia to fill vacancies.

111               In Mr Byrne’s opinion, which was not seriously challenged, as a CPA with an MBA and at least five years in taxation services, given the shortage of tax professionals in Tasmania, Mr Gordon should have been readily employable with a career and salary prospects which could have at least matched if not well exceeded his expected career with the ATO.  He could have expected a long career with one of Tasmania’s larger accounting firms, that is to say ones with 25 plus staff (which I take to mean professional staff).  A salary survey referred to by Mr Byrne included the following:

Many firms would pay bonuses of up to six weeks additional salary and directors could expect as much as 50 per cent of their base salary.

112               Mr Byrne prepared a table which compares Mr Gordon’s earnings if he had followed a career as a taxation consultant compared to his hypothetical “expected” (ie the middle one of his scenarios) career with the ATO.  It included the following:

113               I am not satisfied that Mr Gordon has made out a case for any loss or damage by way of loss of future salary or superannuation caused by the unlawful termination of his employment.

Mental anguish

114               Mr Gordon claims damages for mental anguish due to the conduct of the respondent causing him “enormous grief and anxiety”. 

115               He said that he had

suffered substantially on an emotional level as a result of what the ATO has done.  This has manifested as an enormous amount of grief and anxiety.  Losing the house I bought in Launceston also broke me up enormously. 

116               He provided a list of 30 “details” of this anxiety, which include:

(e) the humiliation of having to deal with work colleagues when gathering my things to leave work,

(f) driving back to Hobart that night in a state of grief and shock…

(g) attending my doctor the following day to find out what the exact details of the examining doctor’s decision were…

(i) visiting the examining doctor a second time in a state of complete anxiety and finding that my blood pressure was still extremely elevated and trying to convince the examining doctor to talk to my GP about the issue,

(j) having to ring the real estate agent, lawyer and bank who were handling the purchase to advise them that I had been sacked from my job (just telling these people what had happened was extremely hard and humiliating).  Asking the lawyer to ask the seller to give me an extension of time to sort things out…

(k) telling my family (especially my father who lives in Italy on the telephone) and many of my friends (some female friends still not told) what had happened was also extremely difficult.  I had to do this over a few months (and am still doing it) as I was simply unable to deal with it any sooner,

…

(m) waiting three weeks in a state of limbo before finally contacting the ATO to find out what the situation was.  No response had been received from the doctor,

(n) visiting three different doctors on multiple occasions during this time, desperately trying to determine the status of my health.  Having multiple blood pressure readings being performed also exacerbated my anxiety,

…

(q) calling the Delegate in a state of stress at 1 a.m. in the morning to leave a message on his answering machine asking him not to send the (termination) letter as I considered it would breach the Disability Discrimination Act,

…

(v) being rung up by the ATO and told that they had lost the second medical report…

(bb) stress of investigating the case myself and preparing a large number of documents has also been extremely difficult emotionally,

(cc) I have also suffered emotionally from the financial pressures that the situation has continued to place on me…

(dd) I have a fairly nervous disposition and suffered from an episode of anxiety and depression around eight years ago resulting in me requiring three months off work on sick leave.  This whole affair has certainly placed unusual stress upon me causing me many sleepless nights.  I have also spend numerous hours in the daytime obsessing over the circumstances of my life and wasted large amounts of time and nervous energy in this pursuit.

117               In addition, Mr Gordon lists four “other effects on personal life”, including:

(b) I have also felt unable to take women out as I feel at some stage they would need to know the present circumstances in my life which I have been unwilling to divulge,

…

(d) Applying for the dole and applying for new jobs has also been humiliating and seemingly unnecessary.  Carrying out work for the dole obligations has also been required during this period.

118               Mr Gordon’s oral evidence was that he “suffered extreme amounts of anxiety as a result of the decision and the determination to fix the matter which I saw as unjust” but that he did not seek medical treatment for that anxiety. 

119               Since, for the reasons already explained, the cancellation of the purchase of the Launceston house is not a basis for compensation, I exclude so much of the foregoing as relates to that issue.  Nevertheless, I accept that Mr Gordon has suffered substantial mental anguish.  Perhaps he does not have a particularly stoic makeup, but, to apply the aphorism of the common law, the unlawful discriminator must take the plaintiff as it finds him.

120               A job, which one has sought and obtained on one’s merits, gives meaning and purpose to life.  It is an essential part of one’s self worth.  If it is lost as a result of someone’s unlawful conduct then compensation ought to reflect the loss that is suffered, quite apart from economic considerations.

121               Under this heading I would award Mr Gordon $20,000.

Interest

122               Mr Gordon claims, and is entitled to, interest up to judgment under s 51A of the Federal Court of Australia Act 1976 (Cth).  The claim under the HREOC Act is, inter alia, a claim for “the recovery of … money (including … damages)”.

123               The amount of the award is $91,297 made up as follows:

124               The usual practice in the Federal Court is to adopt the rate of interest applied by the Supreme Court of the State or Territory in which the Federal Court is considering the matter: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 at [7].  The current rate prescribed under rule 5A of the Supreme Court Rules 2000 (Tas) is 10.5 per cent.

125               The award for lost salary is for money lost progressively over the last five years.  I will allow the 10.5 per cent on roughly half that amount, say $30,000, for five years, ie $15,750.  The remainder of the award, $28,030, represents compensation for loss incurred five years ago.  Interest on that component will be $14,715.  Total interest amounts to $30,465.

Costs

126               The parties requested leave to make submissions as to costs after reasons were delivered.  There will be a direction that within seven days of delivery of judgment the applicant file and serve submissions as to costs, the respondent file and serve submissions seven days thereafter and the applicant file and serve any reply within seven days.  Costs will be decided on the papers.

Associate:

Dated:         6 May 2008

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