FEDERAL COURT OF AUSTRALIA

Flanagan v Murdoch Community Services Inc [2010] FCA 647

THE COURT ORDERS THAT:

1.                  The application is dismissed.  

2.                  There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

I.          INTRODUCTION

1                     Lorraine Flanagan (Ms Flanagan) was employed by Murdoch Community Services Inc (MCS).  MCS is an incorporated association providing employment, residential and day programs for people with a disability.  From about September 2004, Ms Flanagan was employed by MCS as a supported employee in a number of capacities, the last of which was as part of its car wash team at Long Street, St Arnaud (the Workplace).  Ms Flanagan worked about 15 hours per week, earning approximately $55.00 per week.  On 30 March 2009, Ms Flanagan resigned.

2                     On 26 October 2009, Ms Flanagan applied under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for alleged contraventions of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (the DDA).  The Respondents are MCS and Nancy McColl Bowen (Ms McColl Bowen), who at all relevant times was the Chief Executive Officer (CEO) of MCS.  Ms Flanagan’s complaint was that she had been discriminated against because she has a disability.  In particular, Ms Flanagan’s complaint was that the steps taken by MCS and Ms McColl Bowen following an alleged driving incident on 5 May 2008, including issuing a directive restricting Ms Flanagan’s vehicle access at the Workplace without first consulting her, was less favourable treatment than other employees without a disability because it denied her “natural justice”, was unfair and unreasonable and would not have been imposed on non-disabled workers. 

3                     Ms Flanagan’s submissions at trial were limited to s 5 of the DDA.  No submissions (oral or in writing) were made in relation to s 6 of the DDA.  The relief sought by Ms Flanagan was:

1.                   An apology.

2.                   That all employees of [MCS] and in particular [Ms McColl Bowen] undergo equal opportunity and disability awareness training.

3.                   Compensation for trauma, anxiety, pain and suffering.

4.                   Withdrawal of the driving allegations.

5.                   Compensation for loss of the benefits of employment.

6.                   Compensation for any loss of wages arising out of the discrimination including future earnings.

7.                   Any legal costs arising from making this Complaint.

4                     Although MCS offered Ms Flanagan her job back, Ms Flanagan does not want to return to work at MCS.  Ms Flanagan no longer seeks an apology, the requirement that Ms McColl Bowen undergo training or the withdrawal of the driving allegations.  However, Ms Flanagan still seeks compensation for trauma, anxiety, pain and suffering, compensation for loss of the benefits of employment, compensation for any loss of wages arising out of the alleged discrimination including future earnings and costs.  

5                     St Arnaud is a small regional community in Victoria.  The people referred to in these reasons for decision live and must continue to live in that community.  What follows is, at every level, a tragedy.  No one person or entity comes out of this proceeding unharmed. 

II.        FACTS

6                     Ms Flanagan has an intellectual disability.  She does not read or write and requires the support of an advocate.  Ms Flanagan is capable of making her own decisions but takes time to process information.  Ms Flanagan has had her driver’s licence for approximately 18 years.  The fact that Ms Flanagan has a disability of the kind just described or that she was employed by MCS as a supported employee is not in dispute. 

7                     Ms McColl Bowen was the CEO of MCS from April 2006.  Ms McColl Bowen resigned as CEO with effect from 28 May 2010. 

A.       The 5 May Incident

8                     On 5 May 2008, at approximately 7 o’clock in the morning, Ms McColl Bowen was walking with a friend, Ms Dorothy Patton, along Bowen Street, St Arnaud.  Ms Flanagan, who was not working that day, was driving her car down the street heading in the direction of Ms McColl Bowen and Ms Patton.  Bowen Street was described as a street with houses on the right side with no gutters or footpath and a grass/gravel area on the left side.  Ms McColl Bowen and Ms Patton were walking on the leftside of the road.  

9                     Ms McColl Bowen and Ms Patton allege that Ms Flanagan was driving her car on the “extreme left hand side of the road” which caused the pair to quickly leave the edge of the road to avoid the oncoming vehicle.  In a statutory declaration prepared by Ms McColl Bowen, she described the incident as follows:

[The car] not only came straight towards us as we walked on the side of the road but it also seemed to be accelerating.  This was odd because there was no other traffic; the road is wide enough for two cars to pass each other easily; and most cars we see when we are walking give us a wide berth … We were walking near the edge of the bitumen.  We were not walking in the middle of the road.

When we realized (sic) that the car was not going to deviate from its path very close to the edge of the bitumen, Dorothy and I moved quickly onto the dirt beside the road … The car passed close to my left shoulder.  It was going so fast it would not have been able to stop, had I failed to get out of the way.  The car driver did not stop.  

10                  Ms Flanagan denies the incident occurred in the manner described by Ms McColl Bowen.  In her evidence, Ms Flanagan stated that when she entered Bowen Street, she saw Ms McColl Bowen and Ms Patton walking in the middle of the road, and when they saw Ms Flanagan approaching, they moved out of the way onto the side of the road.  Ms Flanagan said she then drove “straight past” them.  The following part of a statutory declaration prepared by Ms Patton which described the incident was read to Ms Flanagan during cross-examination:

I saw a car enter Bowen Street travelling towards me on the extreme left hand side of the road, causing my walking companion, [Ms McColl Bowen], to need to quickly leave to the edge of the road to avoid contact with the oncoming vehicle.

Ms Flanagan responded by saying that “what [Ms Patton] is saying is the truth but what [Ms McColl Bowen] is saying is not” and that Ms Patton was correct when she said that Ms McColl Bowen needed to quickly leave the edge of the road.

11                  One other factual matter about the incident needs to be addressed.  Ms Flanagan alleges that the Respondents accused her of “swerving” the vehicle toward Ms McColl Bowen.  Ms Flanagan maintains that she did not swerve in the direction of Ms McColl Bowen and that there was no danger to Ms McColl Bowen or Ms Patton.  None of the contemporaneous material provided by the Respondents, including the statutory declarations concerning the incident, alleges that the vehicle “swerved”.  In cross-examination Ms Flanagan said that she was accused of swerving at a meeting held in Bendigo “three or four weeks” prior to the hearing in March of this year.  During cross-examination, Ms McColl Bowen reiterated that she did not accuse Ms Flanagan of swerving.  When asked by Counsel for Ms Flanagan if the language in her statutory declaration was “extremely close” to saying Ms Flanagan swerved, Ms McColl Bowen replied “not in my understanding of the word ‘swerve’ ... [s]urely that means a change of direction”.  I accept that the Respondents do not accuse, and have not accused, Ms Flanagan of swerving her vehicle toward Ms McColl Bowen and Ms Patton.

12                  As will be discussed later in these reasons for decision, whether the 5 May 2008 incident occurred in the manner described by Ms McColl Bowen or Ms Flanagan does not have a significant impact on the outcome of this case.  What is in issue is whether the process the Respondents adopted to deal with the 5 May 2008 incident was discriminatory on the basis of Ms Flanagan’s disability.  For the present purposes it is sufficient to state that I accept Ms McColl Bowen’s version of the incident.  Her evidence was consistent with that of Ms Patton.  Ms Flanagan acknowledged the accuracy of Ms Patton’s evidence.  I conclude that on 5 May 2008 Ms McColl Bowen and Ms Patton had to quickly leave the side of the road to avoid contact with Ms Flanagan’s oncoming vehicle.  Ms Flanagan did not swerve at Ms McColl Bowen or Ms Patton but she was driving in such a way that Ms McColl Bowen and Ms Patton would have been likely to have been hit by the vehicle had they not moved out of the way.

13                  Previous complaints of Ms Flanagan’s behaviour while working at the Workplace were in evidence.  On three separate occasions (22 February 2006, 29 November 2007 and 23 April 2008) there had been complaints of Ms Flanagan verbally threatening to run over other supported employees with her car.  Ms Flanagan had also received complaints against her for physical and verbal aggression.  Ms McColl Bowen had also observed Ms Flanagan driving at excessive speed in and out of the Workplace on previous occasions.  The previous complaints concerning Ms Flanagan’s driving were a significant reason for Ms McColl Bowen taking the steps she took following the incident.

B.        The Respondents’ handling of the 5 May 2008 Incident

1.                                THE DIRECTIVE

14                  The immediate steps taken by the Respondents following the 5 May 2008 incident are not in dispute. 

15                  First, Ms McColl Bowen spoke to Ms Sharon Davey, Manager of Client Services at MCS (Ms Davey), about arranging a meeting with Ms Flanagan.  She did not give Ms Davey a detailed account of the incident.  Secondly, Ms McColl Bowen issued a memorandum (described as a directive) stating that an incident had occurred that morning and that Ms Flanagan’s vehicle access to the Workplace was now restricted.  Specifically the directive noted:

Following an incident early this morning in St. Arnaud, I am restricting the access by vehicle of our client, Lorraine Flanagan, to both the Long Street property and to MCS vehicles.

As of today, Lorraine is not permitted to do either of the following:

1.       drive into the Long Street property or park in our parking area.  She will need to park her car in James Street or Long Street.

2.       drive any MCS vehicle.

The incident which occurred earlier today will be the topic of a meeting to be arranged as soon as possible.  Since an advocate is required, the meeting cannot go ahead today.

The new arrangements will continue until further notice. 

16                  Ms McColl Bowen stated in cross-examination that immediately after the incident she had “in her mind” the previous incidents involving Ms Flanagan’s driving but she did not review the records of these previous incidents, or check Ms Flanagan’s file, prior to issuing the directive.

17                  Ms Flanagan was not at work on 5 May 2008 as it was her day off.  She was due to return to work on 6 May 2008.  Ms Flanagan was not made aware of the directive until after it was issued.  She was shown the directive for the first time at a meeting at the MCS respite house on 21 July 2008.  Ms Flanagan disputes the appropriateness of issuing the directive before being able to put forward her version of events.  She submitted that, without giving her the benefit of a hearing to ascertain her position in relation to the incident, the Respondents discriminated against Ms Flanagan to her detriment by failing to give her the benefit of natural justice. 

18                  The Respondents submitted that the incident did not relate to a disciplinary matter (but an Occupational Health and Safety (OH&S) issue) and that Ms Flanagan’s claim in this regard (that is, requiring a hearing) is misconceived.  Further, the Respondents submitted that having identified a safety risk they were required to act immediately to reduce and eliminate any risk.  The Respondents maintained that the issue was purely one concerning OH&S and did not concern Ms Flanagan’s disability at all.  Under cross-examination, Ms McColl Bowen found it difficult to say whether she regretted the way in which the directive was issued although she thought it was essential at the time to issue the directive on the day and in the manner she did.  She said:

I regret what has followed and I think it’s not a clear - it is not clear, right or wrong, from my perspective and, therefore, yes, I could have issued the memo the following day.

2.                                may MEETING TO DISCUSS THE INCIDENT

19                  On 5 May 2008, Ms Davey contacted Ms Flanagan’s home to advise that Ms McColl Bowen had arranged for a meeting to take place on 6 May 2008 to discuss the incident.  Ms Davey spoke to Ms Rhonda Marchment, Ms Flanagan’s outreach support worker.  Ms Davey did not inform Ms Marchment of the reason for the meeting however she did advise that she had “arranged for” Ms Flanagan’s advocate, Ms Debbie Verdon (Ms Verdon), to attend the meeting.  Ms Verdon confirmed in her evidence that she was invited to attend the meeting on 5 May 2008 by Ms Davey.  However, Ms Davey said that she did not speak to Ms Verdon until 12 May 2008.  In cross-examination, Ms Davey stated that she did leave a message on 5 May 2008.  I conclude that Ms Verdon became aware of and was invited to the meeting on 5 May 2008; whether that information was relayed to her by message or by direct conversation is unnecessary to resolve.  What is significant is the fact that Ms Davey contacted Ms Verdon.

20                  On the same day (5 May 2008), Ms Marchment contacted Ms Flanagan’s sister, Heather Stevenson (Ms Stevenson), and told her of the proposed meeting and the telephone conversation with Ms Davey.  At around 4:30pm, Ms Stevenson telephoned Ms Davey to discuss the reason for the meeting.  Ms Stevenson’s recollection of this conversation was that Ms Davey said Ms Flanagan had swerved at Ms McColl Bowen that morning and that a meeting had been arranged with Ms Verdon to discuss the incident.  Ms Davey denies saying that she accused Ms Flanagan of swerving and, as noted earlier in these reasons (see [11] above), I accept that Ms Flanagan did not swerve nor was she ever accused of doing so.  Ms Stevenson cancelled the meeting on the premise that Ms Flanagan should be able to choose her own advocate and that it was not a workplace issue.  Ms Stevenson also expressed concern that the matter should have been referred to the police department if MCS considered the issue to be serious.

21                  The Respondents were of the understanding Ms Verdon was to act as Ms Flanagan’s advocate on all employment-related matters.  Ms McColl Bowen formed this view as a result of a conversation with Ms Davey (of which there is no written record) as well as the fact Ms Verdon had been Ms Flanagan’s advocate in a previous driving incident in April 2008.  Additionally, Ms McColl Bowen said that she did not refer the matter to the police because she was concerned that Ms Flanagan could lose her licence and that such a matter could lead to legal proceedings, which would be reported in the local paper.

22                  On 6 May 2008, Ms McColl Bowen and Ms Davey met with Ms Stevenson to discuss the incident.  When asked whether it was appropriate to discuss the matter with Ms Stevenson, Ms McColl Bowen said that she had “no concerns in the sense communication needed to occur … and, therefore, I needed to certainly communicate with somebody”.  Ms Stevenson and Ms McColl Bowen’s recollections of the meeting differed.  However, it is common ground that Ms Stevenson did not think it was appropriate that the matter was raised with her (as she was not Ms Flanagan’s advocate).  For the present purposes, I accept that Ms McColl Bowen contacted Ms Stevenson, rightly or wrongly, in an attempt to try to discuss the matter with Ms Flanagan.

23                  On or about 12 May 2008, a meeting regarding the incident was held.  This meeting was attended by Ms Flanagan, Ms Verdon, Ms Kelly Wilson from Pinarc support services (a disability support service), and Ms Davey on behalf of MCS.  Ms McColl Bowen did not attend because the meeting was called with thirty minutes notice and she was not informed of the meeting until after it occurred.  At this meeting, Ms Flanagan put forward her version of events and denied any wrongdoing.  A memorandum from Ms Davey to Ms McColl Bowen summarising the meeting was in evidence.  The memorandum states:

I was asked by Debbie Verdon to attend a meeting this morning (11.40am) with Debbie Verdon, Kelly Wilson and Lorraine Flanagan.

The following points were made by Debbie Verdon:

·         Debbie would like a copy of the memo regarding Lorraine’s driving bans to be sent to her, Kelly and Lorraine.

·         That Lorraine’s and Nancy’s view of the incident differ markedly.

·         That it has been suggested to her (DV) that Lorraine could seek stress leave under WorkCover.

·         That Lorraine will not be back for the immediate future unless there is a resolution soon.

·         She asked when Lorraine would be able to drive her car on MCS premises.

·         There is no time-frame for resolution or for a return to work for Lorraine.

Lorraine made the following points:

·         She had not received a copy of the memo.

·         She does not agree with Nancy’s point of view and wants her to say that she was wrong.

·         She stated that she (LF) had not done anything wrong.

·         She would come back to work if Heather told her to do so.

·         She is open to a solution on this issue.

I made the following points:

·         All parties want Lorraine to return to work.

·         That Debbie and Kelly should come up with some suggestions / strategies for a return to work.

·         I would report on the meeting to Nancy.

C.        Subsequent Developments after the 5 May incident

24                  The meeting on 12 May 2008 did not resolve the issue.  On 12 May 2008, Ms Flanagan made a WorkCover claim for the inability to work due to workplace stress and anxiety.  A witness statement by Ms Flanagan’s support worker, Ms Marchment, indicated that Ms Flanagan had “lost all confidence in the community and people she would normally communicate with”. 

25                  The Respondents contacted Ms Verdon proposing the restrictions be lifted contingent on Ms Flanagan undertaking not to drive in an unsafe manner and having driving lessons paid for by MCS (the Offer).  The precise date the Offer was made is not known.  In cross-examination, Ms McColl Bowen confirmed that the Offer was put to Ms Flanagan after the WorkCover claim was lodged.  In any event, on 14 May 2008, Ms Flanagan rejected the Offer because having driving lessons would imply an admission of wrongdoing and Ms Flanagan believed “there [was] nothing defective about her driving”.  Ms McColl Bowen’s evidence was that the driving restriction was ultimately lifted without requiring Ms Flanagan to undertake driving lessons on or about 21 July 2008.  I reject that evidence.  On 21 July 2008, a return to work meeting was organised by “Recovre”, a WorkCover support organisation, which was attended by Ms Flanagan, her advocate Ms Verdon, together with Ms Sue Medlyn and Ms Davey from MCS.  The one month progress report prepared by Recovre on 7 August 2008 described the meeting as follows:

At this meeting, Ms Flanagan’s employer representatives stated that they were willing to support her with a return to work however, she would have to follow the traffic management plan (which was provided), this involved parking in only those area’s (sic) allocated for parking.  Furthermore Ms Flanagan would no longer be allowed to drive work vehicles.

Ms Flanagan and her advocate attended the workplace and inspected the allocated parking spaces and she identified that she was prepared to park in the appropriate space; however, she was not prepared to return to work if she was unable to drive the work vehicles.

Ms Medlyn identified that they would be willing to allow Ms Flanagan to drive the vehicles if she return to work and was incident free (in relation to her behaviour) for 3 months.

(Emphasis added).

It is clear that, contrary to Ms McColl Bowen’s evidence, the driving ban was not lifted on 21 July 2008.  The restrictions however appear to have been lifted by September 2008, because the Recovre two-month progress report on 8 September 2008 records that MCS agreed to remove the stipulation that Ms Flanagan not be allowed to drive MCS vehicles from her return to work requirements.

26                  On 12 November 2008, another meeting occurred with Ms Verdon and a representative from Recovre.  At this meeting, a further meeting was arranged between MCS and Ms Flanagan to be held on 8 December 2008.  On 5 December 2008, MCS sent a letter to Ms Flanagan:

…

Murdoch Community Services (MCS) have endeavoured to address as many of the points raised in the information below as possible and look forward to meeting with you on 08.12.08 to make final arrangements for your return to work.

1. Lorraine expressed that she feels unfairly treated as a result of the alleged incident and would like an apology.

MCS acknowledges that this has been a difficult circumstance for both parties involved, one in which there is unfortunately not an easy solution.  It is important to advise that there were reasons has to why the Police have not become involved including concern that Lorraine may have lost her licence as a result.

2. Lorraine has concerns about returning to work due to the uncertainty of who was aware of the incident and what has transpired following.

MCS understands that privacy is particularly important in sensitive matters such as this and therefore have only informed key operations people such as RTW [return to work] Coordinator (Sue Medlyn), Client Services Manager (Sharon Davey) and Coordinator of Employment (Eril Sherwell) due to their role in managing staff and Work Cover matters.  In accordance with the Privacy Act no other staff or supported employees have been informed of the circumstances related to Lorraine’s time off work.

3. Lorraine has requested for a memo to be sent out to indicate that Lorraine can drive MCS vehicles, bring her car to work and operate the car wash.

MCS wishes to advise that Lorraine can drive her vehicle on-site and park in the designated parking areas (as per the traffic management plan).  The four supervisors involved in the carwash area will also be informed via memo of Lorraine’s ability to drive vehicles, park on the premises and resume work in the carwash area (please see attached).

4. Lorraine would like to nominate alternative support persons in the event of issues arising within the workplace.

MCS are committed to the prompt and effective management of workplace problems and issues and agree that if an issue arises following Lorraine’s return to work an alternative support person (other than her sister) should be nominated.

We acknowledge receipt of the process suggested by Debbie regarding a situation where an Advocate/Support person needs to become involved around a workplace issue.  We note that the current MCS counselling and disciplinary process (MCS Policy and Procedures Manual) covers all these points, except for the written notification being sent to Lorraine’s home address and we are very happy to comply with this request.  We also request that the Advocate of Lorraine’s choice does not have a current or previous employment history with MCS, as this creates a conflict of interest.  There may also be exceptional circumstances where immediate action needs to take place in accordance with duty of care or OH&S requirements.

5. Lorraine requested that she would like to be treated the same as non-supported employees.

At MCS our mission is to provide programs based on individual needs, with the focus on enhancing development, increasing independence and promoting community inclusion.  We are committed to ensuring a harmonious and co-operative workplace for all involved, which relies on teamwork, professionalism and competence.  MCS aims to treat all employees both fairly and equally, respecting difference, upholding dignity, openness and trust.  A code of conduct has been formulated to ensure that all employees also treat each other with respect and are aware of what is expected of them within the workplace.  If an employee has a grievance or concern they are able to raise this with the program coordinator who will investigate and aim to resolve all matters where possible within 10 working days.

We trust that this has been of assistance in addressing the issues mentioned above.  Please note that MCS are committed to providing you with assistance and support in returning to the workplace.  

27                  No minutes of the meeting of 8 December 2008 were tendered in evidence.  The only evidence of the meeting was in the letter of 5 December 2008 (see [26] above) and in a letter from WorkCover to Ms Flanagan dated 23 June 2009 which said that a meeting was held with Ms Flanagan and Ms McColl Bowen to discuss Ms Flanagan’s return to work.  In cross-examination, Ms McColl Bowen confirmed that she and Ms Flanagan attended the meeting.  She did not give evidence about the contents of that meeting except to deal with the grievance procedures which are discussed in further detail below.  Ms Stevenson’s evidence was that “what happened on [8 December 2008] is probably totally different to what the letter said on [5 December 2008]”.  However, Ms Stevenson did not attend the meeting.  Despite the lack of evidence about what transpired at the meeting on 8 December, it is clear that it did not resolve the issues and Ms Flanagan did not return to work.

28                  On 17 March 2009, MCS sent a letter to Ms Flanagan’s doctor, Dr Slipcevic, outlining their concerns about Ms Flanagan being unable to return to work.  This letter noted, among other things, that all return to work efforts had stalled.

29                  Ms Flanagan did not return to the Workplace.  In cross-examination, she maintained that notwithstanding the lifting of the restrictions, she could not return to the Workplace while Ms McColl Bowen was at MCS.  On 30 March 2009, Ms Flanagan resigned from the Workplace.  She submitted that she was constructively dismissed and was, in effect, forced to resign.  Ms Flanagan’s resignation letter of 30 March 2009 stated:

I write to resign from my position with [MCS].  I wish to be clear that this resignation is made under duress.  I feel I am forced to resign as a result of the treatment I have received from the CEO, Ms Nancy McColl-Bowen since May last year, the lack of support I received from management during this period, and the organization’s (sic) actions since the alleged incident which occurred on May 5, 2008.

Since May 2008, I have been intimidated by the CEO.  This has contributed significantly to my chronic anxiety and stress adjustment disorder.  Management has failed to offer support, and has blamed me for the situation.  After the alleged incident involving the CEO, management has treated me less favourably.  I was removed from my usual duties as a car cleaner and my reputation was tarnished among the managers in the organization (sic), and this has caused me even further distress.  I was denied access to natural justice.

The decision to resign has not been taken lightly.  I want to be able to work, but it is important to feel comfortable and safe within the workplace, and I fear I would not be able to do so should I return to work.

The effect that this situation is having on my health has left me unable to return to work.  I am currently on Work[C]over which I believe should continue as I am not in a fit state to work at present due to the actions of Ms McColl-Bowen and the organisation.

This resignation takes effect immediately.

…

Ms Flanagan did not write this letter.

30                  On 1 April 2009, the Respondents sent a letter to Ms Flanagan acknowledging receipt of her resignation.  The letter suggests, inter alia, that Ms Flanagan withdraw her resignation and return to work as “all staff were ready to welcome [her] back at any time”.  Further, a copy of the MCS Grievance form was attached so that the workplace issue “may be addressed according to MCS policies and procedures”.  In cross-examination, Ms McColl Bowen confirmed that this was the first time Ms Flanagan had received a copy of the grievance procedures for the incident.  However, Ms McColl Bowen also said that the grievance procedures had been previously discussed with Ms Flanagan in the meeting of 8 December 2008, where Ms Flanagan “was asked whether she was familiar with those procedures [and] she said yes, and there are minutes of those meetings”.  As noted earlier (see [27] above), no minutes of that meeting were in evidence.  The letter MCS sent on 5 December (see [26] above) did not attach the MCS Grievance form.  It merely stated that a grievance or concern was able to be raised with “the program coordinator”.  Further, in cross-examination Ms McColl Bowen said that Ms Flanagan would have been aware of the grievance procedures generally because they had been raised with her in discussions with Ms Davey in April 2008 involving another incident.  Despite this lack of clarity, Ms McColl Bowen’s evidence was that she did not have “any concerns” about Ms Flanagan’s notification of the grievance procedures.

31                  The Respondents have indicated they are still willing to have Ms Flanagan return to work at MCS without driving restrictions.

III.       LEGISLATIVE FRAMEWORK AND RELEVANT LEGAL PRINCIPLES

A.        The Disability Discrimination Act and Subsequent Amendments

32                  The alleged discriminatory conduct occurred in 2008.  The Act applicable is the DDA in force at that time. 

33                  Section 5 of the DDA in force at the time of the alleged discrimination provided:

5(1)      For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person 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.

(2)        For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

34                  In 2009, the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (the Amending Act) substantially amended the DDA.  The Amending Act repealed s 5 and substituted it with the following:

5(1)      For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

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

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

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

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

35                  What impact, if any, do the amended provisions have on the issues in these proceedings?  A number of principles are worth restating:

1.                  the applicable act is that in force at the time the relevant events occurred: Zhang v University of Tasmania (2009) 174 FCR 366 at [6] and [58].

2.                  amending acts can be used as an aid to interpretation where the words of the earlier statute are ambiguous: Allina Pty Limited v Federal Commissioner of Taxation (1991) 28 FCR 203 at 212; see generally D C Pearce and R S Geddes, Statutory Interpretation in Australia (6^th ed, 2006) at [3.34].

3.                  where words of an earlier statute are clear, the Court should not interpret the words by reference to the amending act: Allina 28 FCR 203 at 212; D C Pearce and R S Geddes, Statutory Interpretation in Australia (6^th ed, 2006) at [3.34].

4.                  care must be taken to ensure that amending words were not included to remove doubt as to the meaning of the earlier statute: Allina 28 FCR 203 at 212 and the authorities cited; Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 382 per Gummow J; D C Pearce and R S Geddes, Statutory Interpretation in Australia (6^th ed, 2006) at [3.34].

5.                  where the Court does take an amendment into account, the Court should not interpret the earlier statute as giving a wider meaning than that conferred by the amendment, because it would render the express meaning in the amendment otiose: Grain Elevators Board (Victoria) v President, Councillors and Ratepayers of the Shire of Dunmunkle (1946) 73 CLR 70 at 86 per Dixon J; see generally D C Pearce and R S Geddes, Statutory Interpretation in Australia (6^th ed, 2006) at [3.34].

6.                  subject to the principles mentioned above, reference can be made to Hansard to obtain insight as to the reasons for amendment: Downey v Trans Waste Pty Limited (1991) 172 CLR 167 at 177-8 per Dawson J; D C Pearce and R S Geddes, Statutory Interpretation in Australia (6^th ed, 2006) at [3.34].

36                  During the course of the hearing, I sought the parties’ submissions as to how the Amending Act should be used (if at all) as an aid to interpreting the DDA. 

37                  Ms Flanagan submitted that the Amending Act should be used to interpret the DDA.  She argued that there was “sufficient ambiguity” in the DDA to justify considering the Amending Act, particularly in relation to s 5(2) of the DDA.  Ms Flanagan cited the Second Reading Speech to the Amending Act, which provided that the amendments to s 5(2) were intended to remove any doubt (the emphasis is mine) by introducing “an explicit and positive duty to make reasonable adjustments for people with [a] disability”: Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12292 (Robert McClelland, Attorney-General).  The Court was also referred to the Explanatory Memorandum to the Amending Act, which provided that the amendments were introduced to overcome any doubt cast over this duty in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.  Ms Flanagan submitted that Purvis 217 CLR 92 should be confined “to its own facts so far as possible”.

38                  The Respondents submitted that the Amending Act should not be used.  The Respondents referred to Dawson J in Downey172 CLR 167 particularly at 177 where his Honour stated:

The reasons for the amendments were, as an examination of Hansard reveals, the decision in Reg. v Marshall; Ex parte Plumrose (Aust) Ltd and the pending litigation in this court: see the Minister’s Second Reading Speech, Industrial Relations (Further Amendment) Bill 1983, Legislative Assembly Parliamentary Debates (Hansard), 9 November 1983, p. 1690. The amendments, therefore, gave no real indication of the intention of the legislature with respect to the scope of the unamended definition, being explicable merely as a reaction to the course of judicial decision.

(Emphasis added).

39                  For the reasons that follow, I accept the Respondents submissions. 

40                  As the Explanatory Memorandum to the Amending Act provides, s 5(1) was amended to “improve readability”, without making “substantive changes to the existing subsection s 5(1)”: Commonwealth, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, Explanatory Memorandum (2008) at 7.  Accordingly, I do not accept Ms Flanagan’s submission that there is sufficient ambiguity in the DDA to consider the Amending Act in relation to s 5(1).

41                  In relation to s 5(2), the Explanatory Memorandum provides that the sub-section was amended to remove any doubt as to parliament’s intention.  The doubt arose, according to the Explanatory Memorandum, as a result of the High Court decision in Purvis 217 CLR 92.  In Purvis 217 CLR 92, the High Court held there was “no textual or other basis in s 5 for saying that failure to provide [different] accommodation or services [for persons with a disability] would constitute less favourable treatment of the disabled persons for the purposes of s 5”: Purvis 217 CLR 92 at [218] per Gummow, Hayne and Heydon JJ.  The amendments impose a duty to make reasonable adjustments for persons with a disability.

42                  Following the principles cited above (see [35] above) and, in particular the words of caution expressed in Allina 28 FCR 203 at 212 and Interlego 39 FCR 348 at 382, I reject Ms Flanagan’s submission that the amendments to s 5(2) should be considered or that Purvis 217 CLR 92 should be confined to its facts.  The amendments to s 5(2) were introduced to remove doubt as a result of Purvis 217 CLR 92.  If I were to incorporate the Amending Act, it would make the express meaning unnecessary and the qualifications it places upon that meaning futile: see Dunmunkle 73 CLR 70 at 86 per Dixon J.  The DDA in force at the time of the events, as interpreted by the High Court in Purvis 217 CLR 92 and without recourse to the Amending Act, is the Act under consideration. 

B.        Central Concepts in the Disability Discrimination Act

43                  The objects of the DDA are set out in s 3 as follows:

(a)               to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)                 work, accommodation, education, access to premises, clubs and sport; and

(ii)                the provision of goods, facilities, services and land; and

(iii)              existing laws; and

(iv)              the administration of Commonwealth laws and programs; and

(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; and

(c)               to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

44                  “Disability” is defined in s 4 of the DDA as:

(a)               total or partial loss of the person’s bodily or mental functions; or

(b)               total or partial loss of a part of the body; or

(c)               the presence in the body of organisms causing disease or illness; or

(d)               the presence in the body of organisms capable of causing disease or illness; or

(e)               the malfunction, malformation or disfigurement of a part of the person’s body; or

(f)                a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(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;

and includes a disability that:

(h)               presently exists; or

(i)                 previously existed but no longer exists; or

(j)                 may exist in the future; or

(k)        is imputed to a person.

45                  “Discrimination” is defined in s 5 (see [33] above).  The words “because of” in s 5(1) require a causal connection between the disability and the “less favourable treatment”.  In Purvis 217 CLR 92 at [236], Gummow, Hayne and Heydon JJ posed the question to be asked in the following terms:

[T]he central question will always be - why was the aggrieved person treated as he or she was?  If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability?

46                  In determining whether a person has been treated “less favourably” in circumstances that are the same or not materially different, the proper comparator is a person with the same behavioural characteristics without the disability: see Purvis 217 CLR 92 at [11] and Zhang 174 FCR 366 at [64] per Jessup and Gordon JJ.  

47                  As the alleged discrimination occurred at the Workplace, s 15 of the DDA is also relevant.  Sections 15(2)and (4) provide:

(2)       It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

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

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

(c)        by dismissing the employee; or

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

…

(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.

48                  Finally, in relation MCS’ potential liability for Ms McColl Bowen’s actions, s 123 of the DDA relevantly provides:

(1)       If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a)                that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b)                that the director, servant or agent had the state of mind.

(2)       Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

C.        Authorities referred to by Ms Flanagan

1.         Discrimination

49                  In addition to Purvis 217 CLR 92, Ms Flanagan referred to two cases where discrimination was found to have occurred.  The first, McNeill v Commonwealth of Australia (1995) EOC ¶92-714, concerned unlawful discrimination of a sight impaired complainant who was subject to intense monitoring by her supervisor and did not have her disability adequately accommodated for.  The complainant was ultimately dismissed after the respondent concluded she was unable to carry out the requirements of her job.  The Human Rights and Equal Opportunity Commission found:

[T]here was a connection between the lack of equipment and intense monitoring and the conduct and communication difficulties displayed by the complainant.  The evidence adduced by the complainant satisfied me that much of the complainant’s behaviour reflected her frustration at her disability not being reasonably accommodated by the respondent in accordance with the RA [reasonable adjustment] principles it was bound to implement.

…

It follows that in dismissing the complainant, the respondent was doing so for reasons brought about by, and hence on the ground of, her disability - namely that her inefficiency and her frustration was caused by her disability not being adequately accommodated and also, in part for displaying behaviour that was a manifestation of her disability.

50                  In McNeill (1995) EOC ¶92-714, conditions were imposed on the complainant that made it difficult, if not impossible, for the complainant to perform her job functions.  

51                  In the second, Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664, the applicant suffered from attention deficit disorder and depression and claimed that the respondent had discriminated against him during his employment on the basis of his disability.  Driver FM held:

[112]    The question is why was Mr Ware demoted?  Was it because of or by reason of his disabilities?

…

[113]    Mr Ware’s absences from the workplace provided Mr Crocker [of the respondent] with what he regarded as sufficient cause for demotion but the real reason for the demotion was that Mr Crocker had exhausted his capacity to accommodate Mr Ware’s condition.  To my mind, this establishes a sufficient causal link between the less favourable treatment and Mr Ware’s disabilities.

…

[120]    To the extent that the termination decision was based upon pre-existing concerns about Mr Ware’s performance and behaviour, it was discriminatory.  Mr Ware’s performance and behaviour were influenced by his disabilities.  Mr Crocker had previously accepted that while Mr Ware’s performance and behaviour merited dismissal, he would not dismiss Mr Ware summarily, having taken into account his disabilities.  Those pre-existing problems either merited dismissal or they did not.  Mr Crocker had accepted (grudgingly) that no summary dismissal action would be taken.  Mr Ware would be given the chance to prove himself by reference to specified criteria.  He was not given a reasonable opportunity to prove himself and he was not assessed against those criteria …  The hypothetical comparator would have been judged against those criteria.  Mr Ware was not judged against those criteria essentially because Mr Crocker changed his mind.  In dismissing Mr Ware, Mr Crocker recanted the consideration that he gave Mr Ware by reference to his disabilities.  The dismissal was therefore because of those disabilities.

52                  As with McNeill (1995) EOC ¶92-714, Ware [2005] FMCA 664 concerned the failure of an employer to accommodate an applicant’s disability.  In the present case, the driving restrictions imposed on Ms Flanagan resulted in her feeling she could not return to work.  However, unlike McNeill (1995) EOC ¶92-714 and Ware [2005] FMCA 664, there is no suggestion the Respondents did not accommodate Ms Flanagan’s disability at the Workplace.  The issue here is different.  It concerns whether the driving restrictions, and the process involved in imposing them on Ms Flanagan, were “because of” Ms Flanagan’s disability and whether those conditions were different from those which would be imposed on non-disabled persons involved in a similar incident with the same complaints. 

2.         Disability Service Standards

53                  In addition to the DDA, Ms Flanagan submitted that MCS was required to adhere to the Disability Services Standards (DEWR) 2007 (Cth) (the Standards), made under the Disability Services Act 1986 (Cth).  According to Ms McColl Bowen, MCS was an “Australian Disability Enterprise” (an ADE) which received funding and support from the Commonwealth for the services it provided to disabled persons.  As an ADE, MCS was required to implement the Standards in relation to supported employees.  Standard 7 and Standard 9 in Schedule 1 were referred to by Ms Flanagan’s Counsel.  Standard 7 provides:

Each service recipient is encouraged to raise, and have resolved without fear of retribution, any complaints or disputes he or she may have regarding the service provider or the service.

KPI 7.1            The service provider encourages the raising of complaints by service recipients regarding any areas of dissatisfaction with the service provider and the service.

KPI 7.2            Service recipients have no fear of retribution in raising complaints.

KPI 7.3            The service provider facilitates the resolution of complaints or disputes by service recipients regarding the service provider and the service.

54                  Standard 9 provides:

Each person with a disability enjoys working conditions comparable to those of the general workforce.

…

KPI 9.2            The service provider ensures that, when people with a disability are placed in employment, their conditions of employment are consistent with general workplace norms and relevant Commonwealth and State legislation.

“KPI” or “key performance indicators” are defined in s 5 of the Standards to be the “key performance indicators to be applied in assessing whether a disability employment standard or a rehabilitation program standard has been observed”.

55                  In cross-examination, Ms McColl Bowen acknowledged that KPI 7 was binding on MCS.  However, Ms Flanagan did not specifically address how Standard 7 had been breached.  Her submission was that “in its failure to grant [Ms Flanagan] natural justice, the Respondent[s] failed to deal with the applicant fairly and breached the [Standards]”.  When I asked Ms Flanagan’s Counsel whether KPI 9.2 was relevant they referred to Jerzy Slezak v Pilkington (Aust) Operations Ltd [1995] IRCA 638 and Van Thu Nguyen v Nissan Casting Australia Pty Ltd [1995] IRCA 657, two industrial relations cases concerning the importance of following proper processes in the workplace where the respondents failed to provide valid reasons for terminating the applicant’s employment as required under the Industrial Relations Act 1988 (Cth).  Ms Flanagan’s Counsel submitted that these industrial relations cases were of assistance in determining whether KPI 9.2 had been followed because there was an analogy between the requirement of valid reasons for termination in an industrial relations context and valid reasons for imposing the driving restrictions in the present case.  He submitted that the grounds for imposing the restrictions were “never really made out satisfactorily” and the failure to follow proper processes was consequently inconsistent with the requirement under KPI 9.2.  

56                  Subject to the submissions outlined above, neither party substantially addressed how the Standards were relevant nor the consequences of not meeting the key performance indicators.  The Explanatory Statement to the Standards notes that key performance indicators are “simple, sensitive, outcome based measures of performance” and are “applied by accredited certification authorities in assessing whether the standards have been observed”:  Commonwealth, Disability Services Standards (DEWR) 2007, Explanatory Statement (2007).  Failure to observe the Standards may have ramifications on the funding an ADE receives from the Commonwealth.  However, there is no mechanism in the Disability Services Act 1986 (Cth) or the Standards for this Court to enforce non-compliance with the Standards.  In direct contrast, if there is non-compliance with the standards formulated under s 31 of the DDA, that conduct is unlawful under s 32 of the DDA.  Although there is scope in the DDA for disability standards in relation to the employment of persons with a disability (s 31(1)(a)), no such standards have been formulated.  Accordingly, even if I conclude that the key performance indicators under the Standards have not been observed by MCS, it does not follow that s 5 or s 15 of the DDA has been breached.  At best, failure to observe the Standards, especially KPI 7, is evidence that MCS did not properly communicate the grievance procedures to Ms Flanagan despite its obligation to encourage the raising of complaints.  

3.                                Constructive Dismissal?

57                  Although Ms Flanagan did not bring these proceedings under the Workplace Relations Act 1996 (Cth), she referred the Court to numerous authorities in an industrial relations context in support of the proposition that she was “constructively dismissed” by the Respondents.  First, Ms Flanagan relied on Triggs v GAB Robins (UK) Ltd [2007] 3 All ER 590, an English case concerning the imposition of undue workloads and alleged bullying that resulted in the employee resigning.  The Court considered the employee’s resignation a constructive unfair dismissal under the Employer Rights Act 1996 (UK) as the overwork and bullying breached an implied term of trust and confidence.  

58                  The second authority was Carrigan v Darwin City Council [1997] IRCA 101, a case involving a mismanaged return to work of an injured employee that was considered a constructive unlawful dismissal under the Industrial Relations Act 1988 (Cth).  Thirdly, Ms Flanagan referred the Court to Laz v Downer Group (2000) 108 IR 244 where Moore J noted that s 170CK of the Workplace Relations Act 1996 (Cth) was designed to give effect to an international convention.  Ms Flanagan submitted that although different legislation was applicable here, the principle that international conventions must be borne in mind is equally applicable here.

59                  Finally, Ms Flanagan referred to Watkins v Fryer & Anor (1995) EOC ¶92-667, a case concerning complaints under the Sex Discrimination Act 1984 (Cth).  In that case, the complainant was subjected to sexual harassment from the first respondent and was further disadvantaged when she raised the matter with the executive committee of the second respondent.  It was not clear whether the complainant had resigned or had been dismissed.  The Human Rights and Equal Opportunity Commission held that it did not need to determine whether “as a matter of industrial law she was dismissed unfairly” but found that “[the complainant] was meant to and did understand that she was not to return to work”, amounting to a constructive dismissal.

60                  As noted, Ms Flanagan did not bring proceedings for unfair dismissal.  The only reference in Ms Flanagan’s written submissions to her dismissal was the assertion “the Respondents discriminated against [Ms Flanagan] to her detriment in that she was forced to resign and [Ms Flanagan] was in effect dismissed by the Respondents”.  That allegation was not pleaded and now cannot be pursued. 

61                  The issue here is whether the Respondents have treated Ms Flanagan less favourably than persons without a disability in circumstances that are the same or are not materially different for the purposes of the DDA.  The evidence presented by Ms Flanagan all went to the processes adopted by MCS addressing the 5 May 2008 incident that eventually led to Ms Flanagan’s resignation.  It is the process that MCS adopted that is important, not the outcome of that process.  It is a narrow inquiry.  Therefore, the cases cited in relation to constructive dismissal may be put to one side.  They are not relevant to the disputed issues in these proceedings.

4.                                Natural Justice

62                  Another phrase repeatedly used in the presentation of Ms Flanagan’s case was “natural justice”.  Ms Flanagan’s Counsel submitted that the Respondents’ failure to give Ms Flanagan the benefit of a hearing in relation to the driving restrictions before issuing the directive amounted to discrimination “by failing to give [Ms Flanagan] the benefit of natural justice”.  No submissions were made about the relevance and content of natural justice or its relationship to s 5 of the DDA.  In cross-examination, Ms McColl Bowen and Ms Davey acknowledged the importance of having a hearing when an employee raises a complaint.  However, the Respondents did not consider the incident a disciplinary matter (see [18] above), where hearings were required.  Considerations of natural justice are relevant in so far as they concern whether the conditions imposed and the processes followed were different to what would have occurred with a non-disabled employee in circumstances that were the same or not materially different to those of Ms Flanagan.  Once again, it is a narrow enquiry.  

IV.       APPLICATION OF LAW TO THE FACTS

63                  The central question is that posed by Purvis 217 CLR 92 – why was Ms Flanagan treated as she was?  If Ms Flanagan was treated less favourably was it ‘because of’, ‘by reason of’, her disability?

64                  There was no dispute that a claim of unlawful discrimination in contravention of the DDA required Ms Flanagan to establish:

1.                  she suffered from a disability within the meaning of s 4 of the DDA;

2.                  the Respondents discriminated against her;

3.                  on the basis of her disability.

65                  The first element was not in issue.  The Respondents accept that Ms Flanagan has a disability which impairs her ability to process information quickly and accurately.  In relation to the second element, as Purvis 217 CLR 92 and Zhang 174 FCR 366make clear, the discrimination must involve the Respondents treating or proposing to treat Ms Flanagan less favourably, in circumstances that were the same or not materially different, than the Respondents treated or would have treated a person without the disability:  s 5 of the DDA. 

66                  Ms Flanagan submitted that the discriminatory conduct was comprised of:

1.                  Issuing the directive (which imposed the driving restrictions) immediately after the 5 May 2008 incident without first discussing the matter with Ms Flanagan;

2.                  Contacting Ms Verdon, Ms Flanagan’s purported advocate, and asking her to attend the May meeting without offering Ms Flanagan the opportunity to choose her own advocate;

3.                  Imposing the driving restrictions on Ms Flanagan and not communicating to Ms Flanagan that the restrictions had been lifted; and

4.                  Failing to provide Ms Flanagan with a copy of MCS’ grievance procedures until April 2009.

67                  As noted earlier, the issue is not whether the 5 May 2008 incident occurred in the manner alleged but rather the way the Respondents dealt with the incident.  Ms Flanagan was and remains aggrieved by the incident and the procedures that followed; to the extent she took leave on the basis of stress and anxiety and then resigned.  In Ms Flanagan’s submissions, she stated that in addition to losing wages, she has also suffered “loss of focus in her life provided by having employment … and … humiliation, trauma, pain and suffering”.  Her distress is evident.  

68                  The question is whether in circumstances that were the same or not materially different, the Respondents would have responded to the 5 May 2008 incident in the same way to a person without Ms Flanagan’s disability.  As the Respondents submitted, the relevant comparator is a person displaying the same behaviour as Ms Flanagan but without the disability, not a person without the disability and without the behaviour:  Zhang 174 FCR 366 at [63].

69                  In my view, it cannot be said that the Respondents would have treated a person without Ms Flanagan’s disability any differently.  Here, the relevant comparator is a non-supported employee involved in a similar incident with a history of related incidents (see [46] above).  One approaches the question of the alleged discrimination by asking if a non-supported employee had behaved in the same manner as Ms Flanagan, was Ms Flanagan’s treatment by the Respondents less favourable than the treatment the non-supported employee would have received and if so, was that less favourable treatment because of, or on the ground of, Ms Flanagan’s disability?  The answer to each question is no. 

70                  The first step is to consider the behaviour in question.  I concluded earlier in these reasons for decision that Ms Flanagan’s behaviour on 5 May 2008 occurred in the way described by Ms McColl Bowen (see [12] above) and Ms Flanagan’s past conduct is not disputed:  see [13] above.  The next step is to ask whether the treatment of her by the Respondents in consequence of that behaviour – namely the issue of the directive outlining the imposition of driving conditions – was less favourable than what would have been imposed on others who acted in the same way and did not have a disability. 

71                  The following facts are not in dispute:

1.                  the 5 May 2008 incident occurred outside of working hours, not at the Workplace and at a time when Ms Flanagan was not due to work at the Workplace again until 6 May 2008;

2.                  on 5 May 2008, without looking at Ms Flanagan’s file or attempting to speak to Ms Flanagan, Ms McColl Bowen issued the 5 May 2008 directive imposing immediate driving restrictions on Ms Flanagan and directed Ms Davey to arrange a meeting with Ms Flanagan (see [15] above);

3.                  Ms Flanagan, as an employee of MCS, was entitled to a fair hearing and was entitled to have complaints in the Workplace raised with her;

4.                  subject to paragraph 5 below, there were no applicable procedures and policies for dealing with an incident of this nature.  They were being developed at the time of the incident;

5.                  a procedure for employees to lodge grievances was in existence but, in relation to this incident, a copy of the procedure was not provided to Ms Flanagan until April 2009 (after she had tendered her resignation);

6.                  Ms McColl Bowen did not keep a record of when she lifted the driving restrictions she had imposed on Ms Flanagan.

72                  As in many of these cases, there was a paucity of evidence on this issue.  Notwithstanding the statement in Zhang 174 FCR 366 at [67], no evidence was adduced of what had happened or would happen in other cases where employees had been involved in driving or other incidents inside and outside the Workplace. 

73                  In the end I am left with the direct evidence of Ms McColl Bowen.  Her evidence on this and other issues was less than satisfactory.  Her demeanour was less than satisfactory.  She presented as resentful of the need for her to attend Court and for her to explain the steps she took.  That resentment was evident whether she was being asked questions by Ms Flanagan’s Counsel or by the Court.  Ms McColl Bowen refused to answer the questions she was asked and instead used the time as an opportunity to seek to justify her conduct.  At other times, she appeared harsh, if not vindictive, towards Ms Flanagan. 

74                  Notwithstanding my concerns with her evidence, there were aspects of her evidence that were not the subject of challenge and which I accept.  Ms McColl Bowen’s uncontroverted evidence was that if Ms Flanagan had been a non-supported employee (an employee without a disability), Ms McColl Bowen would have:

1.                  used the employee’s past records in deciding how to deal with the employee;

2.                  imposed the same driving conditions upon a person behaving in the same way and without the disability;

3.                  made sure that she immediately clarified the position with the imposition of the driving restrictions by calling a meeting;

4.                  considered the matter to be an issue of OH&S, rather than a disciplinary matter; and

5.                  refrained from referring the matter to the police. 

75                  Ms Flanagan was treated no less favourably than would a non-supported employee manifesting the same behaviour but without the disability.  As a result, there is no relevant treatment which can be said to have been caused by her disability. 

76                  Concerning the submissions on natural justice, Ms Flanagan has not established that a hearing was required before issuing the directive, nor has she demonstrated that non-supported employees would have been treated differently.  Although the Respondents acknowledged that hearings were required when employees raised complaints, it has not been established that such a hearing should occur before preventative action is taken.  I accept the Respondents’ argument that they considered the matter to be an OH&S issue, requiring immediate action.  

77                  Despite concluding that the conduct of the Respondents was not discriminatory, I must emphasise that the Respondents poorly managed the 5 May incident.  It was even acknowledged by counsel for the Respondents that the way in which MCS and Ms McColl Bowen dealt with the issue was not “ideal”, albeit not discriminatory.  There was an acknowledged failure to communicate with Ms Flanagan either directly or through the appropriate channels throughout the entire process.  That conduct (or lack of it) just compounded the mistrust between the parties. 

V.        Conclusion

78                  For those reasons, the application must be dismissed.  In my view, although the general rule is that costs follow the event (see Fetherston v Peninsula Health (2004) 137 FCR 262), in this case I do not think it is appropriate to make an order as to costs.  The Respondents acknowledged that the way in which they dealt with Ms Flanagan was not “ideal” and that they share part of the responsibility for the fact that the proceedings were commenced in the first place: see Tate v Rafin [2000] FCA 1582 at [71].

Associate:

Dated:         23 June 2010