FEDERAL COURT OF AUSTRALIA
Razumic v Brite Industries [2008] FCA 985
SANDRA RAZUMIC v BRITE INDUSTRIES
VID 595 of 2006
VID 823 of 2007
RYAN J
30 JUNE 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 595 of 2006 |
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BETWEEN: |
SANDRA RAZUMIC Applicant
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AND: |
BRITE INDUSTRIES Respondent
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JUDGE: |
RYAN J |
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DATE OF ORDER: |
30 JUNE 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Should the respondent seek costs in the light of paragraph 1 of this order, it should file and serve by 14 July 2008 written submissions in support of that application.
3. The applicant file and serve by 28 July 2008 any written submissions in answer to the written submissions referred to in paragraph 2 of this Order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 823 of 2007 |
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BETWEEN: |
SANDRA RAZUMIC Applicant
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AND: |
BRITE INDUSTRIES Respondent
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JUDGE: |
RYAN J |
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DATE OF ORDER: |
30 JUNE 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Should the respondent seek costs in the light of paragraph 1 of this order, it should file and serve by 14 July 2008 written submissions in support of that application.
3. The applicant file and serve by 28 July 2008 any written submissions in answer to the written submissions referred to in paragraph 2 of this Order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 595 of 2006 VID 823 of 2007 |
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BETWEEN: |
SANDRA RAZUMIC Applicant
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AND: |
BRITE INDUSTRIES Respondent
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JUDGE: |
RYAN J |
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DATE: |
30 JUNE 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 On 31 May 2006 the applicant filed a Form 5 application, pursuant to O 4 r 1 of the Rules of this Court, in proceedings numbered VID 595 of 2006. On 6 September 2007 she filed a Form 5 application in this Court pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (“the HREOC Act”) for compensation for alleged contraventions of ss 5, 6, 15 and 32 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”), in proceedings numbered VID 823 of 2007. On 10 October 2007 orders were made by consent that proceedings VID 823 of 2007 be consolidated with proceedings VID 595 of 2006.
Background
2 The applicant was employed by the respondent as a Sheltered Workshop Worker from 20 November 1985 until 14 March 2006. The respondent provides to persons with disabilities a supported employment service, funded by the Commonwealth Department of Family and Community Services and Indigenous Affairs. The applicant’s employment was terminated on 14 March 2006 for alleged misconduct. At the time of her termination, the applicant had been working three days a week from 8.30am to 3.30pm in the respondent’s Brite Pak Division, sorting and packing goods, bar-coding, and sorting curtain products. She also performed administrative duties, including handing out payslips and clock cards to other employees.
The claim under the Workplace Relations Act 1996 (Cth)
3 In the Form 5 application, filed on 31 May 2006, the applicant’s claim is recited as;
‘Unlawful termination was harsh, unjust and unreasonable under subsection 170CFA(3) of the Workplace Relations Act 1996 (Cth) (“the Act”).’
4 It is also said in the same application;
‘The application is made under section 170CP of the Act in relation to alleged contravention of section 170CK for which the applicant seeks the following relief:
1. Reinstatement
2. Compensation.’
5 The Form 5 application was filed with a Form 5A claim of unlawful termination of employment said to be made pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”).
6 Attached to the applicant’s Form 5A claim is a Certificate from the Australian Industrial Relations Commission (“the Commission”) dated 16 May 2006 related to an application for relief in respect of termination of employment, filed in the Commission pursuant to s 650(2) of the Act, on the ground that the termination of her employment by the respondent was harsh, unjust or unreasonable. On 28 April 2006 a conciliation was held between the parties at the Commission, and, on 12 May 2006, the applicant advised the Commission that she had been unable to reach agreement with the respondent. Pursuant to s 650(92)(a) of the Act, Commissioner Mansfield issued a Certificate dated 16 May 2006 that;
‘all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful in respect of the following ground or grounds:
The termination was harsh, unjust or unreasonable
Section 170CK of the Workplace Relations Act 1996
Section 170CK of the Workplace Relations Act 1996’
In the Certificate, Commissioner Mansfield stated;
‘An in-principle “commercial” settlement was developed during the conciliation. It included:
· A payment of $780 which represents 26 weeks’ remuneration.
· Funding for a work education course at TAFE.
· A letter of regret for the hurt suffered.
Ms Razumic has declined the offer and wishes to pursue re-instatement.
In my opinion the offer was not unreasonable in the circumstances.’
7 On 16 February 2007 the applicant filed a Statement of Claim in this Court, alleging at par 4 that the applicant suffered from epilepsy and intellectual impairment, each of which is said to be a physical or mental disability within s 170CK(2)(f) of the Act. It is then pleaded, at par 5 that the impairments have the following consequences;
‘a) Loss of ability to remember;
b) Loss of ability to process information;
c) Loss of ability to interpret behaviour; and
d) Loss of mental agility.’
‘I) Co-workers sought to engage the Applicant in discussion about their work and personal problems, with the consequence that the Applicant’s work was interrupted.
II) Co-workers on occasions swore at the Applicant and/or punched her and/or called her names and gave her a “fingers up” sign and punched her. A co-worker, Maryanne Duic, constantly hassled the Applicant and interrupted her while she was doing her work and when the Applicant tried to walk away, Maryanne Duic would follow her, even to the toilet.
III) A co-worker by the name of Tracey Clarke spoke to the Applicant frequently about her personal life and problems would become angry and violent easily and pull the Applicant’s hair and punch her on the back. On one occasion, Tracey Clarke pushed a table into the Applicant, whilst the Applicant was going to sit down in the morning tea room and this occurred at a time when the Applicant had had her gall stones removed.
IV) A Co-worker Avril Davidson called the Applicant names such as “dumb”, “spastic” and “sick in the head” and would stick her tongue out at the Applicant.
V) A co-worker named Debbie Jones advised the Respondent’s management that the Applicant was not doing her work properly and going to the toilet every five minutes, when this was not the case. Following a conversation when Debbie Jones tried to have the Applicant slap her so that she could report the Applicant and have her sacked, Debbie Jones attacked the Applicant and attempted strangle her around the collar of her coat, leaving a red mark on the Applicant’s neck. The Applicant told Debbie to stop but Debbie punched the Applicant on the arm, whereby the Applicant received a bruise.
VI) On or about 7th March 2005, the Applicant was helping a co-worker, Lisa Ferrara, in accordance with instructions from the Applicant’s group leader, when Lisa Ferrara screamed and swore at her, saying hurtful things like “fuck your arse” and sticking up her fingers at the Applicant. When making a complaint to her group leader, Debbie, Lisa again approached the Applicant and again swore at and tried to punch the Applicant in the left arm. (“The Lisa Ferrara incident”).’
At par 10 the applicant alleges that she reported the incidents detailed above to the respondent, but that the respondent;
‘failed to take the complaints of the Applicant regarding the incidents into account sufficiently or at all and blamed the Applicant for what had happened.’
It is then alleged at par 11 of the statement of claim that the respondent;
‘a) Failed to provide any or any proper accommodation for the impairment in breach of its duty so do to as a commonwealth supported employment service; and
b) Failed to apply the applicable Disability Standards so that the Applicant received a fair go (Standard 1), had her complaint listened to and acted upon (Standards 3 and 7) and was not discriminated against (Standard 11).’
At par 12 of the statement of claim it is alleged that it was following the Lisa Ferrara incident that the applicant’s employment was terminated.
9 The applicant also pleads at par 13 that the respondent failed to accord her natural justice in relation to the Lisa Ferrara incident, and gives these particulars of that allegation;
‘a) Failure to give the Applicant’s version of the Lisa Ferrara incident any or sufficient consideration;
b) Failure to provide the Applicant with a proper opportunity to respond to any alleged reasons for the termination before the decision was made;
c) Failure to consider alternatives to termination adequately or at all;
d) Failure to consider sufficiently the appropriateness of the alleged conduct and the consequences of the dismissal to the Applicant;
e) Failure to consider the Applicant’s long service record with the Respondent and her expectation of ongoing employment;
f) Failure to consider the possibility of the Applicant securing alternative employment; and
g) Failure to consider the significant effect of the termination on the Applicant.’
10 Paragraphs 14 and 15 of the statement of claim assert that the respondent did not provide natural justice to the applicant in respect of the Lisa Ferrara incident due to the applicant’s impairment. The applicant alleges that natural justice would have been accorded to any other worker without the impairment, and therefore in not according natural justice to the applicant the respondent, not only infringed her human rights, but discriminated against her by treating her less favourably than her co-workers. The applicant alleges that the respondent incorrectly dealt with the Lisa Ferrara incident, and, in effect, dismissed the applicant by reason of her impairment, or for reasons that included her impairment, and that this constituted further discrimination against the applicant.
11 It is then alleged at par 16 that the termination of the applicant’s employment on 15 March 2006 was in breach of s 170CK(2)(f) of the Act and the further or alternative allegation is made at par 17 that the respondent;
‘a) Failed to apply the applicable Disability Standards adequately or at all; and or
b) Failed to provide any or any proper accommodation for the Applicant’s impairment; and or
c) Failed to provide the Applicant with natural justice; and or
d) Dismissed the Applicant on grounds, which even if true, which is denied, were inadequate and insufficient and ought not to have culminated in the dismissal in the circumstances and terminated the Applicant’s employment because of the impairments or for reasons that included the impairments contrary to the provisions of Section 170CK(2)(f) of the Workplace Relations Act 1996 as then in force.’
12 As a result of the alleged contraventions, the applicant claims that she has suffered;
‘a) Loss of earnings;
b) Loss of employment and employment opportunity; and
c) Humiliation, distress, pain and suffering.
d) Depression’
and seeks;
‘A Reinstatement.
B Compensation for loss of earnings.
C Imposition of a monetary penalty pursuant to Section 170CR of the Act.’
13 On 16 March 2007 the respondent filed a defence to the statement of claim in which it admitted that the applicant suffers from a disability within the meaning of s 170CK(2)(f) of the Act, and says further that the applicant was capable of participating in and performing the activities and duties allocated to her.
14 In response to par 8 of the statement of claim, which pleads that the applicant performed her duties satisfactorily, the respondent alleges at par 8 of its defence that;
‘a) During her employment the applicant was frequently disruptive, aggressive and physically and verbally abusive to fellow employees and engaging in behaviour that placed the occupational health and safety of the Applicant and other employees of the Respondent at risk;
…
b) The Applicant had been provided by the Respondent with lawful counselling and warnings on numerous occasions regarding her unsatisfactory conduct and behaviour;
…
c) The Respondent developed personal Behaviour Management Plans with the Applicant in order to address the Respondent’s concerns with the Applicant’s disruptive behaviour and poor attitude to work. The Behaviour Management Plans contained strategies to assist the Applicant to deal with the issues impeding her work performance and to enable her to complete her duties satisfactorily. These issues included the serious physical assault of the Applicant by her father at the Applicant’s home in or about 31 July 2005, as a result of which the Applicant was hospitalised;
d) At or before the time it made the decision to terminate the Applicant’s employment, the Respondent determined, as it was lawfully entitled to do, that the Applicant was an unsatisfactory employee;
e) It otherwise denies the allegations in paragraph 8.’
15 In relation to the incidents alleged by the applicant in par 9 of her statement of claim, the respondent states at par 9 of its defence;
‘a) Difficulties in Applicant’s interaction with other employees of the Respondent were the subject of strategies contained in the Behaviour Management Plan devised for the Applicant by her and the Respondent. The Respondent arranged meetings between the Applicant and other employees and also provided external counselling and advocacy to the Applicant to assist in resolving those conflicts;
b) The Applicant often failed or refused to comply or co-operate with the measures set out in paragraph 9(a);
c) The Respondent investigated incidents involving the Applicant and other employees of the Respondent as follows:
a) Debbie Jones, as a result of which disciplinary action was taken against Ms Jones and the Applicant;
b) Lisa Ferrara, as a result of which disciplinary action was taken against Ms Ferrara and the Applicant;
d) It refers to and repeats paragraph 8(a) of this Defence;
e) It otherwise denies the allegations in paragraph 9.’
16 Under cover of an objection, the respondent denied the allegation at par 10 of the statement of claim, that the respondent failed to take the complaints of the applicant regarding the incidents sufficiently into account or at all, and added that;
‘a) Complaints by the Applicant regarding the incidents referred to in paragraph 10 of the Statement of Claim were properly considered by the management of the Respondent and appropriate and lawful action taken in each instance;’
17 Also under cover of an objection, the respondent denied the allegations in par 11 of the statement of claim and denied the allegation in par 13 that the respondent failed to accord natural justice in relation to the Lisa Ferrara incident. It similarly objected to, and denied, the allegations in par 14 of the statement of claim, saying that;
‘a) It denies that it failed to give the Applicant natural justice, as alleged or at all, and refers to and repeats paragraph 13 of this Defence;
b) It denies that it discriminated unlawfully against the Applicant or otherwise treated the Applicant less favourably than other employees of the Respondent for the reason that the Applicant suffered from a disability, or for reasons including that reason, as alleged or at all;
…’
18 In relation to the allegations in par 15 of the statement of claim, which were, essentially, that the respondent had dismissed the applicant because of her impairment, it is pleaded in par 15 of the defence;
‘a) It denies that it terminated the Applicant’s employment for the reason that the Applicant suffered from a disability, or for any reason prohibited by section 170CK(2) of the Act, or for reasons that included such reasons;
b) It was lawfully entitled to and did terminate the employment of the Applicant for the following reasons:
i) The Applicant was guilty of behaviour in the workplace which was unsatisfactory and contrary to the reasonable occupational health and safety requirements of the Respondent. The Respondent was concerned to ensure that it observed its duties to other employees in respect of occupational health and safety;
ii) The Applicant was often engaged in conflict with other employees of the Respondent;
iii) The Applicant was physically and verbally abusive toward other employees of the Respondent;
iv) The Applicant disrupted the work of other employees of the Respondent;
v) The Applicant refused or failed to comply with her personal Behaviour Management Plan;
vi) The Applicant refused or failed to comply with lawful and reasonable directions given by the Respondent as her employer;
vii) The Applicant was not a productive employee;
c) It refers to and repeats paragraph 13 of this Defence;
d) It otherwise denies the allegations in paragraph 15.’
19 The respondent denies that the termination of the applicant’s employment was in breach of s 170CK(2)(f), as alleged in par 16 of the statement of claim. In relation to the “alternative breaches” alleged in par 17 of the statement of claim, the respondent, under cover of an objection that they are embarrassing and ought to be struck out, denies each allegation and also denies that the applicant has suffered loss as particularised in par 18 of the statement of claim.
The claim under the Disability Discrimination Act 1992 (Cth)
20 On 6 September 2007 in proceedings numbered VID 823 of 2007 the applicant pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (“the HREOC Act”), applied to this Court for compensation for alleged contraventions of ss 5, 6, 15 and 32 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”). In that application, the applicant claimed;
‘1. Compensation for pain and suffering, loss of self respect and self confidence, hurt, humiliation and trauma in such amount as the Court deems fit.
2. Written apology.
3. Legal Costs.’
The application was accompanied by an affidavit sworn by the applicant on 31 August 2007 in which she deposed to her disabilities, and to her employment by the respondent. In the following paragraphs she reiterated some of the allegations already reproduced at [8] above;
‘8. I have been discriminated against during my employment with the Respondent on the grounds of both my physical and intellectual impairments. In particular I was physically and verbally abused by my colleagues, managers, and supervisors, as follows:
a. Examples of Abuse by my Colleges:
i. I was annoyed and hassled by a co-worker, Maryanne Duic, who frequently interrupted me whilst I was doing my work and followed me about the workplace, even to the toilet. I complained to my supervisor, Sue Da Silva, but the nuisance continued.
ii. I was punched in the back, had a table pushed into me and had my hair pulled by Ms Tracey Clarke, an employee who angered me very easily.
iii. I was called names, such as “dumb,” “spastic” and “sick in the head” by a colleague, Ms Avril Davidson. I reported these incidents to my supervisor Mr Michael Parravicini who, in turn, reprimanded Ms Davidson. Ms Davidson however continued to belittle me in spite of the oral warning.
iv. I was accused of not doing my work and going to the toilet every five minutes by Ms Debbie Jones. Ms Jones also challenged me by requesting that I slap her. Ms Jones allegedly later told me that she hoped to get me sacked by this incident. Ms Jones then strangled and punched me. I reported the incident to my supervisors. The supervisors in response suspended me for three (3) days and made me sign a Behaviour Management Plan which outlined the type of behaviour acceptable in the workplace.
b. Examples of abuse by my Managers and Supervisors:
i. I was accused of faking my epileptic fits by a number of people; …
ii. Ms Robyn Andrews and my supervisor Ms Sue de Silva frightened me by screaming at me and speaking rudely to me. They also wrote hurtful words about me and placed them on my file for me to see.
9. In all of the above instances, the Respondent mistreated me and/or failed to take adequate or any steps to prevent or remedy the maltreatment that I suffered and failed to apply the relevant Disability Standards adequately or at all and treated me less favourably than employees without my disabilities and discriminated against me to my detriment in that I have suffered trauma, loss of confidence, humiliation, isolation and loss of enjoyment of life.’
21 This application was accompanied by a claim conforming with Form 167 in Schedule 1 to the Federal Court Rules alleging unlawful discrimination in contravention of s 46PO of the HREOC Act and describing the discrimination complained of as;
‘(1) Direct discrimination in failing to: -
(a) protect the Applicant against physical and verbal abuse from other co-workers
(b) take the Applicant’s complaints of physical and verbal abuse seriously
(2) Further direct discrimination on the part of the managers and supervisors of the Respondent by accusing the Applicant of faking her epilepsy and by screaming at her and/or writing about her in a hurtful manner and/or failing to prevent the foregoing.
(3) Failing to apply the relevant Disability Standards.’
The application asserts that the alleged discrimination detailed was unlawful contrary to ss 5, 6, 15 and 32 of the DD Act, and seeks the following remedies;
‘Written apology from the respondent
Compensation for pain and suffering in such amount as the Court deemed fit
Legal Costs’
22 The application was accompanied by a notice of termination issued by the Human Rights and Equal Opportunity Commission (“the HREOC Commission”) pursuant to s 46PH(2) of the HREOC Act, signed by a delegate of the President of the HREOC Commission on 21 August 2007, which recited;
‘I am satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.’
The original complaint form lodged with the HREOC Commission was dated 28 February 2007, and alleged discrimination due to a disability, and sought the following relief;
‘a. A written apology from the Respondents;
b. That the Respondents undergo Equal Opportunity Training;
c. That she be compensated for the hurt, humiliation, pain and suffering suffered by herself and by her family as a result of the treatment.
d. That she be compensated for any legal costs;’
23 On 19 October 2007, the applicant filed a statement of claim invoking the same facts and circumstances as were relied on in the statement of claim alleging contravention of the Act. At par 4 of the statement of claim invoking the DD Act, the applicant has alleged that she suffers from right sided hemiplegia, epilepsy and intellectual impairment, each of which is a disability within the meaning of the DD Act. The same statement of claim goes on to allege at pars 15 and 16;
‘15. The Respondent has a duty to apply the Commonwealth Disability Standards (‘the Disability Standards’) and in the circumstances of the annoyance and verbal and physical abuse and its failure to protect the Applicant from same and in failing to treat her complaints seriously and in blaming the Applicant, the Respondent failed to apply the Disability Standards and in particular Disability Standards 1, 2, 3, 7, 8, 11 and 12 adequately or at all.’
16. … the Respondent treated the Applicant less favourably than other employees of the Respondent without the disability and/or than other disabled employees in that it would have protected such employees from the annoyance and physical and verbal abuse, would have taken their complaints seriously and would not have blamed such employees for the same and punished them inappropriately and would have applied the Disability Standards in respect of such employees.’
24 At pars 17 to 20 of the second statement of claim the applicant alleges that members of the respondent’s staff failed to treat her with proper dignity and respect by accusing her of faking her epileptic fits, by screaming at her, speaking rudely to her and recording “hurtful” comments on her file. The respondent, the applicant alleges, failed to protect her from this conduct, and therefore failed adequately, or at all, to apply the Disability Standards. It is further alleged that the conduct attributed to the employer fixed the respondent with vicarious liability pursuant to s 123 of the DD Act.
25 As a consequence of the impugned conduct and the incidents with co-workers, the applicant alleges, she has suffered detriment in the form of;
‘1. Trauma
2. Loss of Dignity
3. Loss of self confidence
4. Anxiety’
The applicant alleges at par 22 of the second statement of claim that the respondent has;
‘treated the Applicant less favourably than other workers without the disabilities and/or than other disabled workers and has discriminated against her to her detriment in breach of s 15 of the Act.’
and seeks compensation and an apology.
26 On 19 November 2007, the respondent filed a defence to the statement of claim dated 19 October 2007 admitting that the applicant has a disability within the meaning of the DD Act. However, at par 15 of the defence the respondent does not admit that it was under a duty to apply the Disability Standards as alleged, and otherwise denies the allegations in par 15 of the second statement of claim. By the same defence, the respondent contends that the allegations in pars 16 to 22 of the new statement of claim are embarrassing and denies each of them as well as asserting that par 22 of the second statement of claim does not disclose a cause of action and contains matters which do not support the allegation of a breach of s 15 of the DD Act.
27 In addition, by par 23 of its defence the respondent pleads;
‘Further and in the alternative:
(i) the Applicant’s Statement of Claim seeks a remedy in respect of facts and circumstances which are substantially the same as in the Federal Court proceeding against the Respondent alleging unlawful termination of employment (Federal Court No. VID595 of 2006) (“the Unlawful Termination Claim”);
(ii) the Applicant in effect seeks a remedy in this proceeding in respect of the termination of her employment; and
(iii) by reason of section 170HC of the Workplace Relations Act 1996 (Cth), as enacted at all material times (alternatively, by section 674 of the Workplace Relations Act 1996 (Cth) as currently enacted), the Applicant’s claim is barred.’
The Applicant’s evidence
28 The two proceedings were consolidated and listed for hearing on 18 March 2008.
29 Evidence on behalf of the applicant was received in the form of written witness statements by the applicant and her mother, Mrs Rosa Razumic, together with statements by two expert witnesses, Dr Chris Towie and Ms Janette Wilson. Mrs Razumic detailed her daughter’s disabilities and recounted that she had been employed by the respondent for about twenty years before her services were terminated in about March 2006. Mrs Razumic also attested that, despite difficulties from time to time to which she was vulnerable, her daughter had been very happy as her work gave her life an interest and a focus. As well, Mrs Razumic purported, presumably on the basis of hearsay, to give evidence about the incident involving Lisa Ferrara. Apparently, Mrs Razumic accompanied her daughter to a meeting at the respondent’s premises on about 15 March 2006 when it became clear that the applicant’s employment was to be terminated. In the light of her observations of what happened at that meeting, Mrs Razumic stated:
‘I do not believe that Brite Industries gave any proper consideration or time to my daughter’s version of what had happened and they were determined simply to sack her, without consideration for her years of service, her good work at Brite Industries, the difficulty she would have in finding other employment and the devastating effect on her of no longer having a job. At the meeting the management people talked among themselves and I heard them whispering. They refused to give my daughter another chance.’
30 In her own witness statements the applicant recounted the history of her employment with Brite Services from November 1985 when she was sixteen until her dismissal in March 2006. Until about five years before then, she had worked full-time but had been reduced to three days a week because her supervisor, Mr John Wood, thought she was unsteady on her feet. The applicant acknowledged that, as a result of a stroke when she was two years old, she suffers from epilepsy, impaired ability to remember and process information and a loss of mental agility. Over the years of her employment by the respondent, she has variously been engaged in sorting hooks of different shapes, packing body lotions into blister packs, cleaning and canteen work. Her most recent internally assessed competency-based remuneration was $1.56 an hour.
31 The applicant also recounted difficulties which she experienced in inter-action with other employees, some of whom, she claims, were violent or abusive towards her. In effect, she corroborated the incidents particularised in her statement of claims as set out at [8] of these reasons. Her account of the incident which she claims to have resulted in her dismissal occurs in these terms at pars 15-17 of her statement dated 13 April 2007;
‘15. The incident that prompted my dismissal occurred on Tuesday, 7 March 2006. That day my Group leader, Debbie asked me to help another employee called Lisa Ferrara (“Lisa”) to sort some hooks. As I was helping Lisa, she began screaming and swearing at me, saying hurtful things like “fuck your arse” and sticking up her fingers at me. I went to see Debbie to complain. Lisa came over to us and kept swearing at me in front of Debbie. She then tried to punch me in the left arm. I told Lisa to stop and said that she would get in trouble if she punched me. About 20 other employees were present at the time on the factory floor, and some witnessed what happened.
16. I was so upset after Lisa punched me that I considered going to the Police.
17. Debbie finally called Lisa into the office with her, Deputy Manager, Cathy and our Team Leader, Renee. They gave Lisa a warning and sent her home for one day only. Then Debbie called me into a room with her, Cathy and Renee. I had no support person present at the meeting. Debbie said that I had just broken Company Rules with Lisa. She said that I had been verballing. I denied swearing or verballing as it was Lisa who had been swearing. Debbie also said that I was not following the Behaviour Management Plan, which I denied.’
32 The rest of the applicant’s statement of 13 April 2007 is largely tendentions complaining of the respondent’s alleged disregard of “the Government Disability Standards” numbered 1, 3 and 7. She also gives an account of meetings which occurred on 7 and 15 March 2007 and contends that there was no reason in her capacity or conduct for the termination of her employment. In pars 29-30 of the same statement she complains in these terms about the way in which the respondent notified her of her dismissal;
‘29. I was never told that Brite was considering sacking me before my termination. I was not properly notified by Brite of the allegations regarding my alleged misconduct at any time prior to the termination. Brite was under an obligation to clearly notify me regarding any issues regarding its decision to terminate my employment and to ensure that I was afforded the opportunity to respond to any such issues and Brite failed to do so. Brite failed to afford me an opportunity to properly respond to the termination to the extent that my conduct was an issue. I was also given no opportunity to know the real basis upon which I was being terminated nor to respond to it. The decision to terminate my employment had already been made before that opportunity was given. Brite had determined and effectively advised me that no response would change its decision thereby negating any real opportunity to respond. Nor did Brite offer me any alternatives to termination, even after I pleaded for my job back.
30. I believe that other employees without the impairment would have been given a fair hearing and would not have been dismissed and that the reason for my dismissal was my impairment in that the Respondent decided that it would prefer not to be faced with my impairment and take steps, which it would have been reasonable for it to do, to accommodate my impairment. The Respondent accordingly overlooked my rights to a fair go and used the incidents (especially the incidents involving Lisa Ferrara) as an excuse to dismiss me.’
33 The applicant’s statement of 13 April 2007 ends by asserting that she has been shocked, hurt, humiliated and distressed by the manner of her dismissal and has had to seek psychological assistance in trying to cope with its effects. She has been too upset to look for another job which, she believes, would be very hard for her to obtain in any event, particularly because of the cost and difficulty involved in travelling any distance from her home.
34 The applicant also adduced expert evidence from Dr Chris Towie, a general medical practitioner and Ms Janette Wilson, an educational psychologist. Dr Towie confirmed that the applicant suffers from Grand Mal epilepsy which he regards as “poorly controlled”. As far as it was admissible, Dr Towie’s evidence was to the effect that the applicant’s adjustment disorder has been exacerbated by her dismissal and her enjoyment of life has been spoiled. He also ventured the opinion that her re-employment by the respondent would be highly beneficial for the applicant’s well-being and her ability to find alternative employment is restricted. Ms Wilson confirmed that the applicant has an intellectual impairment and went on to express the following opinions;
‘12. I am of the opinion, that due to the above impairment, Sandra Razumic
(a) is comparatively easily overwhelmed by complicated situations
(b) cannot rapidly understand concepts newly introduced to her;
(c) has a reduced ability to remember;
(d) has a limited ability to process information;
(e) has a limited ability to interpret behaviour;
(f) has limited mental agility
13. I am further of the opinion that Sandra Razumic’s behaviour in becoming upset and indignant as a consequence of the various incidents described in Paragraph 9 of the Statement of Claim in proceedings No VID 595 2006 and in particular of the Lisa Ferrara incident is correctly linked to and associated with her intellectual impairment.
14. I am further of the opinion that Sandra Razumic has severe difficulty in relating cause and effect and would have had therefore great difficulty in relating her emotional reaction to the incidents and in particular, the Lisa Ferrara incident with the Respondent’s disciplinary procedures and her dismissal.
15. I am further of the opinion that Sandra Razumic would have had severe difficulty in understand the disciplinary procedures culminating in her dismissal.
16. I am further of the opinion that in the light of Sandra’s intellectual impairment her work requires monitoring and supervision, so that interpersonal difficulties are dealt with in ways that accommodate her impairment.
17. I am further of the opinion that Sandra’s working conditions require careful planning and should include the following:-
(a) Careful placement of her work-station with compatible co-workers.
(b) Disciplining to be sparingly applied and to be manifestly even-handed.
(c) Mediation by an experienced and qualified mediator to be the preferred means of resolving any inter-personal or other difficulties
18. I am further of the opinion that the psychological effect on Sandra Razumic of the dismissal would have been severely detrimental to her in causing her a loss of self esteem and a sense of rejection and non inclusion in society.
19. I am further of the opinion that the incident and matters set out in paragraphs 10 to 14 inclusive and 17 of the Statement of Claim in Proceedings number VID 823 of 2007 (“the HREOC Proceedings”) would have caused Sandra Razumic trauma, anxiety and loss of self-esteem.
20. I am of the opinion that it would be highly beneficial to Sandra Razumic and in the best interest of her mental health to be reinstated in her work at Brite Industries.’
The Respondent’s evidence
‘is now characterised as a business service and is expected to break even as a business. Where a profit is made, that profit is delivered back to employees in services and amenities.’
Ms Ruff also recounted that the respondent has about 190 employees of whom about 145 have disabilities of varying degree. The rest are engaged in Employment Support (“ES”) assisting, supervising and supporting the disabled employees.
37 Ms Ruff traced back to April 2005 the events which she claimed had led to the termination of the applicant’s employment. They included disobedience and verbal abuse of a team leader, arguments with other employees and a threat by the applicant to kill herself. In September 2005 the applicant was given a written warning and asked to leave the workplace and seek external supportive counselling. During September 2005, the applicant continued what Ms Ruff called her “erratic” behaviour and was issued with a second written warning and, while discussing it, said that she might as well go out in front of a car and kill herself. She then had an epileptic seizure and was taken to the First Aid room to rest.
38 After consultations with Ms Ignys of Action on Disability within Ethnic Communities (“ADEC”) and Mr De Marco, a psychologist, the applicant returned to work on 19 October 2005 when she was warned that further instances of unacceptable behaviour could jeopardise her continued employment.
40 The meeting on 15 March 2006 was attended by Ms Ruff, three members of the respondent’s ES staff, the applicant and her mother and a Mr Barry Stimelj, an advocate from ADEC, who represented the applicant. According to Ms Ruff, the applicant was given a full opportunity to put “her side of the story”. Nevertheless, Ms Ruff confirmed her decision to terminate the applicant’s employment principally because “her behaviour in the workplace was giving rise to a serious occupational health and safety issue.” Ms Ruff also contended that the respondent’s inability to cope with the demands made by the applicant’s stressful and disruptive conduct militated against her reinstatement in her previous employment.
41 Ms Ruff’s evidence was corroborated in some respects by that of Ms Angela Pantalone, a part-time ES worker who has been employed by the respondent in that role for approximately nine years. Ms Pantalone has graduate qualifications in Applied Science (Intellectual Disability), Rehabilitation and Workplace Training and Assessment. She has had personal as well as professional experience as a result of the need to care for her adult daughter who is intellectually impaired. Ms Pantalone expressed the opinion that the applicant was unable to work at the respondent’s premises without major conflict. She noted the development of BMP’s for the applicant’s benefit and referrals which she had been given to a psychologist for anger management and to Disability Services for case management. Ms Pantalone also supported Ms Ruff’s contention that reinstatement of the applicant in her previous employment –
‘would be quite disturbing and distressing for other employees with a disability and staff. I have noticed since the termination of Sandra’s employment that many issues involving conflict between employees do not now occur.’
She also said that she is not in a position to support the applicant on a one-on-one basis because she has to cater for the needs of 145 other employees.
42 Deborah Bloomer, a team leader employed by the respondent since 2006 recounted in a written witness statement filed on 31 January 2008 the incident on 7 March 2006 between the applicant and Lisa Ferrara. Her account continued with these paragraphs;
‘5. After I stepped in between the two girls, I asked Sandra to go and take a break so that I could try to calm down the situation. However, Sandra was very upset and distressed and it seemed as though I was not getting through to her. Sandra then ran out of the workplace. I saw Sandra run out onto the road outside of Brite.
6. After I went after Sandra and assisted her to return to the workplace, I went to Catherine Millar (production co-ordinator) to get some advice about where we could go to from that point onwards. I told Catherine that I thought that Sandra should not return to work in line with Brite’s occupational health and safety policy. I was of the view that Sandra was too upset and distressed to return to work. I also told Catherine that Sandra had frightened her co-workers so much so that I had to settle them down and help them to return to work.
7. Sandra was later called into a meeting with myself, Catherine and Renae Cummins (employee co-ordinator). In the meeting, the incident between Sandra and Lisa was discussed. Sandra was given the opportunity to explain what had happened between herself and Lisa. Catherine told Sandra that because she was on her final warning, her job was on the line. She was also told that this was a very serious issue for her.’
43 Ms Catherine Millar had been employed by the respondent as a team leader for more than the last two years of the applicant’s employment. On 15 March 2006 she was an acting operations manager. Ms Millar acknowledged that the applicant had demonstrated an ability to remember instructions and carry out tasks within the range of sorting and packing duties which she had been allocated. However, she considered that the applicant often required significant support to enable her to concentrate on the task in hand and frequently engaged in unacceptable behaviour which tended to disturb other employees. Ms Millar also attested to her perception of some incidents between the applicant and other employees which had been recounted by the applicant and other witnesses. Ms Millar’s account did not attribute responsibility for those incidents solely to the applicant but she noted that, at times, when she was not following her current BMP the applicant tended to argue with, and bully, other employees. In Ms Millar’s view, this tendency was largely attributable to problems in the applicant’s personal life, particularly in relation to her father who, as recounted by other witnesses, had, on one occasion, stabbed the applicant causing her to be hospitalised. As a result, the applicant’s mother had obtained an intervention or restraining order against the father.
44 Ms Millar also corroborated the evidence of other witnesses about the events of 7 March 2006 when Ms Millar saw the applicant run from the workplace on to the road. In Ms Millar’s opinion, given the many previous warnings that her job was in jeopardy which the applicant had received, she was unable to continue working for the respondent without causing a good deal of conflict. As already noted, Ms Millar took part in the meeting of 15 March 2006 and her recollection of it accorded with Ms Ruff’s account.
45 Renae Cummins, who had also participated in the meeting of 15 March 2006, has been employed by the respondent since March 2004, previously as a team leader and now as an employee co-ordinator. She had been a team leader for the applicant and kept a work diary, extracts from which related to incidents involving the applicant. Like Ms Millar, Ms Cummins noted that the applicant had difficulty in concentrating on her work and often reacted abusively or aggressively to real or perceived slights by other employees. On occasions, the applicant was moved to another location to avoid conflict with particular employees but that was not always practicable.
46 Ms Cummins noted various departures by the applicant from her current BMP and recounted an incident on 28 July 2004 when the applicant left the workplace and walked into the path of a hearse leading a funeral cortege down Blair Street, Broadmeadows.
‘The level of abuse and aggression was more than what is reasonable for other employees and staff to put up with. Of the many employees I work with who have disabilities, none have exhibited the behaviour shown by Sandra over an extended period of time. The workplace is a much happier and less stressful environment for other employees and staff since the termination of Sandra’s employment.’
Submissions on behalf of the applicant
48 In written submissions, Counsel for the applicant contended that she had been the victim of discrimination by the respondent in its handling of her altercations with her co-workers; specifically;
‘- Being listed to and having meaningful action taken to address concerns over conduct of co-workers toward her and to seriously respond to her version of events in the case of a co-worker’s allegation against her
- Requiring her to understand and comply with an effective requirement that she not retaliate in the case of provocation
- Disciplining/penalising her without proper regard to the effect of her disabilities on her conduct
- Reprimanding the Applicant for a range of matters which she would find it difficult to understand the connection between, at irregular intervals and in irregular sequences’
In the same submission discrimination was further alleged to have been constituted by;
‘- Treatment which would simply not have been inflicted on a person without the Applicant’s disability
- Responses to behaviour by Applicant which failed to accord her benefit of services or facilities not required by persons without her disability and provision of which would not impose unjustifiable hardship on the employer and punitive action against her as an alternative to/because of need for such services/facilities, including compliance with applicable Disability Standards [NB: suggestions Applicant was not appropriately placed with Respondent or “not job-ready”].’
49 Mr Sorensen of Counsel for the applicant referred to of Purvis v New South Wales(Department of Education and Training)(2003)217 CLR 92, in particular at [11], [21] and [224]. He submitted, in relation to s 5(1) of the DD Act, that the applicant’s level of remuneration and the fact that the respondent received government subsidies to assist in keeping disabled persons in meaningful employment should be taken into account when considering the requirement for different accommodation or services which the respondent had objected to providing to the applicant when it terminated her employment. The circumstances of the applicant’s employment and dismissal were dissimilar to those which might have applied to a person without her disability. Taking account of an applicant’s special circumstances, it was submitted, allows s 31(1A) of the DD Act to operate as the legislature intended.
50 It was next submitted on behalf of the applicant that the respondent’s conduct must be regarded as discriminatory unless it can be shown that the provision of relevant services or facilities would constitute an “unjustifiable hardship” within the meaning of ss 11 and 15 of the DD Act. In determining where there has been “unjustifiable hardship”, Counsel submitted, all of the relevant circumstances must be taken into account.
51 Mr Sorensen then submitted on behalf of the applicant that the “inherent requirements” of a person’s employment must be determined in the context of s 15(4) of the DD Act, as explained by the High Court in X v Commonwealth (1999) 200 CLR 177 per McHugh J at [36]–[40] and per Gummow and Hayne JJ at [102]–[104]. The applicant submitted that in order to allow effective scope for the operation of s 15(4), an employer must be precluded from discriminating against an employee as a practical alternative to providing special services or facilities which it could provide without suffering unjustifiable hardship.
52 Counsel contended that the circumstances of the employment of the present applicant, together with the respondent’s conduct should lead to a finding that there had been discrimination against the applicant in the relevant sense.
Respondent’s submissions
53 Mr McNab of Counsel for the respondent submitted that the material difference between the applicant’s two claims is that the applicant does not allege that the termination of employment was in breach of the DD Act and contended that the applicant has not properly pleaded either the cause of action based on a contravention of s 170CK(2)(f) of the Act or that framed as a breach of s 15 of the DD Act.
54 In relation to the DD Act, Counsel for the respondent referred to s 3 of that Act which provides that one of its objects is to;
‘(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community’
Accordingly, he contended, a purpose of the DD Act is not to provide advantageous treatment but, as far as practicable, to provide equal treatment for persons with disabilities; see Purvis v New South Wales (supra) at [195]–[208] per Gummow, Hayne and Heydon JJ.
55 It was accepted on behalf of the respondent that the applicant has a disability as defined by s 4 of the DD Act but Counsel went on to submit that the applicant’s employment had been terminated because her conduct at the workplace was such that it was regarded as no longer appropriate for her employment to continue.
56 Reference was made to the reason for the termination of the applicant’s employment as explained by Ms Ruff in her evidence as summarised at [36]-[39] of these reasons. According to Counsel for the respondent, the evidence revealed that the applicant had been offered assistance throughout her employment, and particularly in the period leading up to the termination of her employment. That assistance, as detailed in the case notes, had been directed at helping her remain at the workplace and alleviating her personal problems.
57 Mr McNab next submitted that the applicant’s employment had not been terminated because of her disability, but because her behaviour had caused a great deal of stress and tension in the workplace, and because she had not been responding to the assistance provided by the respondent to help her overcome her severe behavioural problems. Alternatively, it was contended, if the employment had been terminated because of the applicant’s disability, then it was because the disability had caused the applicant to be unable to fulfil the inherent requirements of the position, as described in s 15(4) of the DD Act, ors 659(3) of the Act.
58 The respondent’s analysis of the evidence was said to support an assumption that, if the same behaviour had been exhibited by a person without the disability, the employment of that person would have been terminated. According to the rationale to be distilled from Purvis, the required comparison for the purposes of s 5(1) of the DD Act is between the applicant and a notional person without the applicant’s disability, whose circumstances include, or are not materially different from, the manifested symptoms of the applicant’s disability; see per Gleeson CJ at [11] and per Gummow, Hayne, and Heydon JJ at [223]–[224]. Counsel for the respondent also referred to the reasoning of Harper J in Peninsula Country Golf Club Inc v Corp (1998) EOC 92–953 and of Heerey J in Featherstone v Peninsula Health [2004] FCA 485.
59 It was acknowledged on behalf of the respondent that the circumstances of this case are special in that all of the employees at the Brite Services workplace other than those in the ES category providing support and assistance have disabilities of one kind or another over a wide range. However, this was said not to change the comparator for the purposes of s 5(1) of the DD Act. The concern in this case had arisen because the behaviour of the applicant was causing health and safety risks for herself personally and the ES staff and other disabled employees who had to work with her. Mr McNab submitted that this concern was not due to the applicant’s disability, and that the reason for the termination of her employment was not affected because her fellow employees also suffered from disabilities. The test as formulated in Purvis is applicable and should be given an operation which renders the termination non-discriminatory.
60 The respondent rejected the applicant’s contention that it had failed to provide special services to her and submitted that it follows from the reasoning of the majority in Purvis that s 5(2) of the DD Act does not require the provision of different accommodation or services; see generally the discussion by Gummow, Hayne and Heydon JJ Purvis at [211]–[218], especially at [218] where it is noted;
‘… there is no textual or other basis in s 5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s 5.’
61 The totality of the evidence, in the respondent’s submission, supports a finding that the applicant was treated with dignity and respect by her supervisors, and that her complaints against other employees had been dealt with appropriately. The largely unchallenged evidence of the respondent’s witnesses borne out by the contemporaneous notes and records, the accuracy of which was not disputed, was relied on as contradicting the applicant’s allegations.
64 The reasons for the termination of the applicant’s employment were identified as essentially those explained by Ms Ruff. It was not open to the Court to find that those were notthe respondent’s true reasons, particularly given the applicant’s inability as a result of her poor memory and difficulty in articulating an alternative hypothesis, to contradict the accounts given by the respondent’s witnesses.
65 Finally, it was submitted on behalf of the respondent, that if, contrary to its primary contention, relief were available under the Act, this would not be a case where the Court could properly exercise the discretion conferred by s 170CR(1)(b), (now s 665(1)(b)) to make an order requiring the respondent to reinstate the employee. The applicant has not put forward any evidence which supports the appropriateness of her reinstatement and, given the nature and context of employment at the respondent’s workplace, and the limitations on the funding and resources available to the respondent, it would be contrary to the evidence to reinstate the applicant in circumstances where it has been demonstrated that she is unable effectively to work in the environment, and that her employment is likely to revive distress to fellow employees and members of the ES staff.
Resolution of the issues
(a) The claim under the DD Act
66 In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, Gleeson CJ at [3] referred to s 4 of the DD Act which defines disability, as including;
‘(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.’
67 In that proceeding, the appellant alleged that he had been discriminated against when the principal of his primary school suspended, then excluded, him from school, due to his violent behaviour towards other students, which was a result of his disability. At [8] of his reasons, his Honour observed in relation to s 5 of the DD Act;
‘Section 5 of the Act relevantly provides that a person, the discriminator, discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person’s disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in the same circumstances.’
Gleeson CJ then accepted, at [11] that the term “disability” in s 4 of the DD Act includes;
‘functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability. However, it is necessary to be more concrete in relating para (g) of the definition of disability to s 5. The circumstance that gave rise to the first respondent’s treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil “without the disability” would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant’s argument lies in the contention that, because the pupil’s violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.’
His Honour next went on to point out, at [12], that;
‘… In characterising the actions of the first respondent, for the purpose of applying a law against unjust discrimination by making the comparison required by s 5 of the Act, and in considering all the circumstances in which the school principal acted, to compare the treatment of the pupil with the treatment of some other pupil who, without any disability, behaved violently permits due account to be taken of the first respondent’s legal responsibilities towards the general body of pupils.’
68 Gummow, Hayne and Heydon JJ, concurring, also referred to s 5(1) of the DD Act, and observed, at [222]–[224];
‘It may readily be accepted that the necessary comparison to make is the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled ……
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.’
70 The applicant’s contention that she could have been continued in employment if the respondent had provided services or facilities to accommodate her disabilities has not been made out on the evidence. Section 15(2)(c) of the DD Act makes it unlawful for an employer to discriminate against an employee on the ground of the employee’s disability by dismissing the employee. However, s 15(4) exculpates the employer from that unlawfulness in certain circumstances by providing;
‘4) 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.’
71 I am satisfied on a review of the whole of the evidence that, by March 2006, the applicant, despite her long work history, had exhibited a deteriorating work performance and psychological and social dysfunction attributable to her epilepsy and family background which made her unable to carry out the inherent requirements of her employment. To have any prospect of carrying out those requirements, she would need to be isolated from many, if not all, of her co-workers and to be supervised almost “one-on-one” by ES staff. Even if, as is far from certain, facilities and services of that order would have enabled the applicant, after March 2006, to have carried out the inherent requirements of her employment, the evidence does not permit me to find that those facilities and services could have been provided by the respondent without undue hardship.
(ii) The claim under the Workplace Relations Act
73 As far as it is justiciable by this Court, the applicant’s claim is based on s 170CK(2)(f) (now s 659(2)) of the Act. That sub-section and paragraph provides;
‘Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
……
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’
Sub-section (3) achieves, effectively, the same exculpatory effect as s 15(4)of the DD Act by providing;
‘Sub-section (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.’
74 For the reasons explained at [69] to [72] above, I am satisfied that the reason for terminating the applicant’s employment even if “for” her physical or mental disability, was based on the inherent requirements of the particular position concerned, particularly the need for reasonably harmonious inter-action with other employees and ES staff. As the relevant provisions of the Act do not qualify the exculpatory effect of sub-section (3) by referring to services or facilities which could be provided by the employer without unjustifiable hardship, it follows a fortiori that the claim under the Act must fail.
75 As far as the claim under the Act travels outside s 170CK(2)(f) or s 659(2(F) of the Act it may be taken to invoke the claim for relief afforded by s 170CE(1) or s 643(1) that the termination was harsh, unjust or unreasonable. For the reasons advanced by Counsel for the respondent and summarised at [62] and [63] above a claim of that kind is not justiciable by this Court.
76 Even if contrary to the conclusions already reached, I had been persuaded that the applicant had established a claim to relief under the Act, I would not have exercised the Court’s discretion to order her reinstatement. The evidence to which I have already referred, cogently suggests that conscientious professional supervisors and assistants familiar with the applicant’s disabilities and their effect on the workplace have formed the judgment that her continued employment is contra-indicated by serious concerns going to far-reaching matters of occupational and personal health and safety. In the face of suggestions of that kind, it would be rare, if ever, that the Court would exercise the discretion by substituting its own judgment that those concerns are outweighed by some personal benefit which an applicant might derive from reinstatement.
Conclusion
77 For the reasons which I have endeavoured to explain, each of the respective applications in proceedings numbered VID 595 of 2006 and VID 823 of 2007 must be dismissed. Should the respondent seek costs in the light of either of those orders, it should file and serve by 14 July 2008 written submissions in support of that application. Any answering written submissions on behalf of the applicant should be filed and served by 28 July 2008.
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I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 30 June 2008
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Counsel for the Applicant: |
Mr R Sorenson |
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Solicitor for the Applicant: |
DEAC Legal |
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Counsel for the Respondent: |
Mr A McNab |
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Solicitor for the Respondent: |
CCI Victoria Legal |
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Date of Hearing: |
18 and 19 March 2008 |
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Date of Judgment: |
30 June 2008 |
