FEDERAL COURT OF AUSTRALIA

Hamden v Commonwealth of Australia [2010] FCA 924

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s 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

1                     This is an appeal from a judgment of a Federal Magistrate dismissing the appellant’s application under the Disability Discrimination Act 1992 (Cth)(the DD Act).

2                     An appeal lies to this Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ((the Federal Court Act).  The appellate jurisdiction on an appeal from the Federal Magistrates Court may be exercised by a single judge: s 25(1AA) of the Federal Court Act.

3                     On 22 March 2010 the appellant filed an amended notice of appeal raising 25 separate grounds of appeal, all of which relate to factual findings made by the Federal Magistrate, except perhaps the last ground of appeal which is that the learned Magistrate erred in his finding that there was no unlawful discrimination in the termination of the appellant’s employment.

4                     I made two rulings during the hearing of the appeal relating to the receipt of fresh evidence on the appeal.  At the hearing of the appeal the appellant sought to call on a notice to produce seeking production of “Copies of all emails sent by Bronwyn Szabados to Stephen Marsh for the period 3-11 May 2007 inclusive.  This includes email as per hi-lited (sic) section on attached document.”  The email which was attached to the notice to produce, which is the email referred to in the notice to produce itself, is an email from Ms Szabados to Mr Marsh in which she says, “Re David Hamden – plse (sic) ignore previous attachment sent to you earlier today – this attachment supersedes.”

5                     Mr Hamden’s notice to produce was I think seeking earlier emails from Ms Szabados to Mr Marsh which included any previous attachments relating to Mr Hamden.

6                     The appellant had brought proceedings in the Administrative Appeals Tribunal (the AAT) in relation to a claim for compensation under the Safety Rehabilitation and Compensation Act.  The hearing of that matter commenced but was not completed before this proceeding came on for trial in the Federal Magistrates Court.  In the AAT claim he was provided with documents by the respondent which were relevant to his claim in the AAT.  Those documents included the email attached to the notice to produce.

7                     The appellant conceded that the evidence which he sought on the notice to produce was available at the hearing in the Federal Magistrates Court but claimed that as a result of things said by the Federal Magistrate he understood that he was not able to obtain any further evidence.  He directed me to an exchange between the Federal Magistrate and the appellant at the opening of the trial.  At that stage his Honour drew to the appellant’s attention the unsatisfactory nature of the affidavits which were before the Federal Magistrates Court and upon which the appellant relied for his case.  There was nothing in the exchange in my opinion which would have led the appellant to believe that he was not entitled to obtain further evidence.  Moreover and more particularly, the time to obtain this evidence in the Federal Magistrates Court was before the trial.

8                     The appellant accepts that he did not ask the respondent to discover the documents which are the subject of the notice to produce, nor did he make any application to the Court for an order for the discovery of those documents notwithstanding he was aware of the existence of the documents because he had received them in the AAT.

9                     The appellant argued that he was unrepresented and inexperienced and therefore in those circumstances ought to be entitled to the production of the documents on the appeal.

10                  Of course, where a party is unrepresented and inexperienced the party is entitled to some leniency in the way that the party might conduct any proceeding before the Court.  Justice often requires such an approach.

11                  However, in this case, the trial had proceeded over two days and the parties had adduced the evidence in response to the orders sought in the application.  The evidence which the appellant now seeks to obtain was known to the appellant to exist at that time but not sought.  It would not be fair to the respondent at this late stage to ask the respondent to produce that evidence and to then submit the parties to a further trial in the light of that further evidence.

12                  Nothing was put before me to indicate that the appellant was either not able or persuaded or prevented from obtaining such evidence.  It seemed to me the appellant was not entitled to obtain further evidence by way of the notice to produce for the purposes of the appeal.

13                  The appellant also sought to have admitted an affidavit sworn on 12 May 2010 and filed on 18 May 2010 in which he sought to file further evidence which was exhibited to that affidavit relating to the speed at which his supervisor was able to type.  Exhibited to that affidavit were copies of orders made in the Federal Magistrates Court, a notice dated 28 April 2008 objecting to the report of Dr Begg “on the grounds that it has been served outside of the time allowed”, part of the transcript of the evidence of Ms Bronwyn Szabados at the AAT hearing, a letter from the Australian Government Solicitor dated 20 August 2008 enclosing Centrelink records, and the records themselves.

14                  The appellant said that during the trial he had asked his Team Leader Ms Szabados questions about a meeting at which they were present.  She said that at that meeting she was distressed but she denied that she was angry.  In the AAT hearing she apparently said that she could only type with one finger and emails could take her a long time to produce.  The appellant said that he wanted to refer to the transcript of the AAT hearing and wanted it received on appeal.  The evidence, he said, disclosed that the meeting between him and Ms Szabados finished at 3.41pm, but that Ms Szabados had sent an email at 4.03pm which was quite lengthy.  He said that because she could only type with one finger, that evidence suggested that she was not a person who was distressed at the time of the meeting.  The appellant said that he did not use the evidence contained in the affidavit or the inferences which arise from the evidence in cross-examination, because he had not studied the evidence carefully enough to realise its significance.  He said he had not studied it carefully because he was preoccupied with preparing the trial. 

15                  The appellant had the transcript of the AAT hearing for nearly three weeks prior to the trial in the Federal Magistrates Court.  He contended again on the appeal that because he was unrepresented and inexperienced he ought to be given some latitude, and it ought to be understood that although he had physically received the evidence about three weeks before trial he had not received it until after the trial because he did not read it carefully until that time.  I am not satisfied that is a good reason to admit the evidence.  In any event, the inference which he says arises, that Ms Szabados was simply overbearing at the meeting rather than distressed, is so tenuous as to be of no assistance.  Even if the inference arises, it is hardly a matter which could impact on the appeal.

16                  I also rejected the tender of that affidavit.

17                  The appellant commenced employment with the Department of Social Security in July 1993.  Between October 1993 and December 1993 the appellant made complaints about his then supervisor as a result of which he was transferred to a different section.

18                  In February 1997 the appellant began permanent employment with Centrelink in Adelaide as a Customer Service Officer providing telephone advice to Centrelink customers.

19                  Between February 1997 and February/March 2007, the appellant suffered anxiety in his employment.  In March 2003 he lodged a successful worker’s compensation claim as a consequence of being diagnosed with a history of anxiety by a Dr Long.

20                  In October 2006 a female employee “FT” made a complaint about the appellant alleging sexual harassment because the appellant looked her up and down and asked if she was “in the family way”.

21                  On 20 October 2006 another female employee “SG” requested an informal harassment procedure as a result of the appellant sending her an inappropriate email.

22                  In October 2006 the appellant lodged a complaint about FT.

23                  The appellant was absent from work from 6 November 2006 to 18 December 2006 as a result of the anxiety he suffered due to the above allegations.  On 23 November 2006 the appellant complained about his then Team Leader, Ms Heather Dubois who had requested Mr Hamden meet with Rebecca Murdoch before allowing him to leave work on 30 October when he was suffering from anxiety.  He wrote to Ms Murdoch, who was then the Deputy Call Centre Manager:

Heather displayed a total and absolute disregard to my state of mind at that time.  I do not expect my Team Leader to understand the symptoms of anxiety disorders, but I do expect my Team Leader to show me an amount of empathy greater than zero.  Please consider my request for a change of Team Leader.

Given my history of sexually harassing women in the workplace (in accordance with the principles of natural justice, for details please consult Mike Trenorden and Fiona Turner or whoever else you wish to consult) please consider my request to be seated in an area where my field of vision does not include any women (again, in accordance with the principles of natural justice) in order to protect them from sexual harassment.

24                  A number of complaints had been made by female employees in relation to the appellant’s conduct in the period up to that point at the time.

25                  Dr Ng issued a number of medical certificates for the appellant’s absence from 6 November to 18 December.  The final one, issued on 16 December 2006, certified that the appellant would be unfit for work until 18 December 2006 as a result of “Allegation of sexual harassment at work.  Lack of response from employer.”  Dr Ng diagnosed the appellant as suffering from “Adjustment disorder with anxiety mood.”

26                  On 18 December 2006 Ms Szabados, who is a Team Leader at Centrelink, spoke to the appellant about the appellant moving to her team.

27                  In January 2007 the appellant made a further claim for worker’s compensation in relation to his absences in November and December 2006.  On 9 January 2007 the appellant lodged a formal complaint about the time taken by Ms Murdoch and Ms Vali, who was also a Deputy Call Centre Manager, to investigate his complaint about FT which had been made in October 2006.

28                  On 1 February 2007 Dr Begg, Consultant Psychiatrist provided Comcare with a medical report relating to the appellant’s claim for compensation and rehabilitation.  Dr Begg found that the appellant had a long history of anxiety disorder which was exacerbated by an allegation of sexual harassment in the workplace and his perception that the management of that claim was improper.  Dr Begg was of the opinion that the appellant was suffering from a generalised anxiety disorder which meant that the appellant would be likely to become demanding and pedantic.  Although Dr Begg thought that the matter to which the appellant referred had caused a worsening of the appellant’s condition, he was of the opinion that the condition had now ceased and that he had returned to his pre-existing level of anxiety.  Dr Begg was of the opinion that the contribution to the appellant’s condition of anxiety was of a minor degree and of a transient kind.  Specifically Dr Begg was of the opinion that the appellant was not incapacitated to work at the same level at which he was engaged by the Commonwealth immediately before the condition commenced.  In Dr Begg’s opinion the appellant was fit to work.

29                  On 2 February 2007 Ms Szabados received a customer complaint about the appellant from the Customer Relations Unit.

30                  The appellant was on recreational leave between 5 February 2007 and 2 March 2007.

31                  During that time, on 12 February 2007, Mr Marsh commenced as the Manager of the Adelaide Call Centre.

32                  On 2 March 2007 the appellant was directed to attend for a medical examination by Dr Begg for the purpose of determining the appellant’s fitness for duty.  On 7 March 2007 the appellant attended such an appointment and on 13 March 2007 Dr Begg reported for the second time.  Dr Begg was again of the opinion that the appellant was fit to perform all normal duties.  He again diagnosed the appellant with an anxiety disorder with an underlying personality having a mixture of histrionic and obsessional traits.  His opinion was that during times of stress the appellant becomes so overwhelmed by his experience and anxiety that he suffers a panic attack, which would include “sweating, palpitations, rapid respiratory rate, shallow breathing and an intense desire to flee the situation.”  Dr Begg in answer to the question how best to manage the appellant in a day-to-day managerial situation said that personalities of the kind which the appellant have are maladaptive and difficult to manage, because those people frequently misperceive the intentions of others.

33                  He said:

There are no specific strategies that will resolve this issue.  Excellent communication skills are required when working with a personality disordered person.  Ambiguity is poorly tolerated.  Lack of information will often be perceived as evidence of persecution.  Consequently the commonsense approach to communication, that is, clear, direct, unemotive information, based on fact, given in a timely manner, focused on the issue at hand, is the appropriate way to handle Mr Hamden.  In view of his tendency to distort information, not the factual details but rather the emotional details, it is useful to document interactions, so there is no ambiguity.  In view of his difficulties with interpersonal reactions, he may benefit from increased personal space.  He may benefit if the sitting position has his back to the wall so that he does not have to be vigilant for an approach from someone from behind.  He may also prefer to be closer to an exit point to reduce the feeling of being trapped by large crowds.

34                  In March 2007 the appellant spoke to Ms Szabados asking her to take over a call from a customer.  Ms Szabados does not remember the details of the conversation but she denies, as the appellant claims, that she said, “I know you have a mental illness but I will not treat you any differently from any other team member.”

35                  On 23 March 2007 Ms Szabados conducted monthly counselling sessions.

36                  On 24 March 2007 Comcare rejected the appellant’s claim for compensation and rehabilitation relating to the period 6 November to 18 December 2006.

37                  On 2 April 2007 Ms Mary-Ellen Sweeney, the Business Manager People Support within Centrelink in Canberra, wrote to the appellant advising the appellant that there was no evidence to support his claim of a breach of the APS Australian Public Service (APS) Code of Conduct by Ms Vali or Ms Murdoch.  She concluded after making those findings:

I am concerned that the claims of harassment made against you have not been finalised or resolved.  I have referred this matter to Steve Marsh, Manager Adelaide Call Centre for him to facilitate as a matter of urgency in accordance with Centrelink’s policies on the prevention and resolution of a harassment in the People Handbook.

38                  On the same day Ms Szabados met with Ms Kernesis and Mr Marsh to discuss the appellant and his future management.

39                  Later that day Mr Marsh met with the appellant to discuss Dr Begg’s report of 13 March 2007 and the recommendations in that report, and to attempt to resolve the complaints made by the appellant and FT against each other.

40                  The appellant requested Ms Sally Curtis, Community and Public Service Union (CPSU) representative to attend the meeting as his support person which she did.  She took notes of the meeting which were provided to both the appellant and Mr Marsh subsequent to the meeting for their comment and signature.

41                  On 12 April 2007 Ms Szabados was approached by a female employee expressing concern about the appellant’s behaviour in the workplace.  She complained that the appellant made inappropriate comments.  She also complained about the way the appellant stared at her and another employee.  On 17 April 2007 the harassment contact officer, Ms Sue Martin recorded a complaint about the appellant.

42                  On 26 April 2007 Ms Szabados conducted a monthly counselling session with the appellant.  She said that she said to the appellant words to the effect:

Steve has told me about an agreement he made with you about escalating calls when you suffer a panic attack.  I wish to summarise my understanding of the new arrangements to ensure that we both have the same understanding.  If you require a call to be escalated because you’re having a panic attack, transfer the call to me and I will transfer it to the appropriate area.  Otherwise you are to follow the usual protocols.

43                  On 3 May 2007 Ms Szabados was asked to take a call by the appellant.  Because of her understanding of the protocol she assumed that although the appellant seemed calm the appellant was having a panic attack.  Based on a brief discussion of the issues with Mr Hamden, Ms Szabados referred the call to a Technical Services Officer (TSO).  Before the call was transferred, the customer complained to Ms Szabados about the appellant, claiming that the appellant appeared not to be able to deal with the call and sounded agitated.  Ms Szabados told the customer that she would address the complaint.

44                  The appellant complains that he was then called to an unscheduled meeting.  On the other hand, Ms Szabados said that she called the meeting for two reasons.  First, to review the process of escalated calls; and secondly, to advise him of the complaint which had been made against him by the particular customer.

45                  Ms Szabados said that the appellant said that he was not experiencing an anxiety attack but that he had escalated the call because the customer had become agitated and the customer had requested to speak with the appellant’s supervisor about the problems encountered with the claim.

46                  Ms Szabados spoke to the appellant about the protocol regarding escalated calls.  She told him that unless they were as a result of an anxiety attack coming on, if they were of a technical character they should be transferred to the TSO and if they were a behavioural or a policy matter to a Team Leader.

47                  During the meeting he indicated that he thought he was not allowed to escalate a call to the TSO unless the customer requested a transfer.  Ms Szabados said that he ought to check the current protocols on the system to see if his understanding was correct.

48                  The appellant asked Ms Szabados if others tell her that she is overbearing.  She said they had not.  The appellant then informed her that she was overbearing.  She told the appellant she was trying to assist him to be better prepared to avoid a call escalating.

49                  The next day the appellant complained to Mr Marsh about the conversation he had with Ms Szabados.  Mr Marsh’s memory is that the appellant said:

I can’t put up with this any more.  Yesterday I escalated a call to Bronwyn and afterwards she called me to an unscheduled meeting to tell me that I had done the wrong thing.  She sat too close to me and invaded my personal space.  She spoke to me in a domineering and overbearing way, even though I had followed the agreement we reached about escalating calls.

50                  Mr Marsh recounted that conversation to Ms Szabados and Ms Szabados told him of her conversation with the appellant, and that she had reminded the appellant that he ought to follow the normal protocols in relation to escalating calls unless he was having a panic attack.

51                  On 7 May 2007 Ms Szabados sent an email to the appellant in the following terms:

Hi David

Following on from our discussion on Thursday last week and directions from Steve Marsh, I wish to confirm my understanding of the protocols to be followed by you, for an escalated/supervisor call.

•           In the first instance should you feel a panic attack or anxiety attack coming on, transfer the call to Team Leader (me – 2XXXX) or approach me at my desk, whichever is most comfortable for you.  If you are able to, without exacerbating your condition, please provide me with a summary of the matter.

•           If you are not suffering the onset of a panic/anxiety attack, please follow the usual protocols as follows:

Heres (sic) the link

http://Centrenet/homepage/divcsdel/call/business_assurance/quality/vtso_cso-htm

[The email then indicates the protocols.]

•           If you are unable to resolve a technical query by accessing e-ref, contact TSO in the usual manner.

Please advise me if your understanding differs from mine.

regards

Bronwyn

52                  The appellant forwarded that email to Mr Marsh with the following comment:

The protocols clearly state that when a customer is unhappy with the customer service they have received – transfer the customer to a Team Leader, which is what I did last Thursday.  Please note: 

I would not expect Bronwyn to apologise for her mistake, NOR would I want to accept an apology.

The above reinforces my reasons for making a formal complaint and I expect it to be actioned according to PS Regulations, ie an independent officer will investigate it so that no bias, actual or perceived, can effect (sic) the outcome.

Many thanks.

53                  Mr Marsh said in his affidavit that on that day the appellant rushed into his office and threw a document on the desk and said words to the effect, “This is my formal complaint”, and then left the office.

54                  The formal complaint was exhibited to Mr Marsh’s affidavit.  In that complaint he made a complaint about Ms Szabados sitting too close to him which indicated “a sign of disrespect for my right to personal space”.  He said that Ms Szabados did not appear to agree with what Mr Marsh had advised him would follow in regard to the protocols.  He said she appeared to be oblivious to their previous discussion and the coaching notes which she had signed off on.  She refused to wait until Mr Marsh returned from Canberra before discussing the matter.  She told the appellant to look up the protocols “in such an authoritarian/bullying manner”.  He said that she made a bad situation worse because she must have been able to perceive that he was extremely distressed by her insensitivity and tactless behaviour.

55                  The appellant concluded that Ms Szabados was not prepared to treat him differently to that of any other team member “or to put this another way, she is not prepared to do things in a way that is much less likely to exacerbate my anxiety”.

56                  On the same day another female employee made a complaint about the appellant’s behaviour.

57                  On 8 May 2007 the appellant wrote to Ms Szabados indicating that the meeting of 3 May 2007 was unscheduled and that it was his preference that there be no further one-to-one contact but if that were absolutely necessary it would not be without the presence of a third party of his choosing.  He concluded his email, “My first preference is a change of Team Leader.”

58                  On 9 May 2007 the appellant absented himself from work and remained off work up to and including 21 June 2010.  On 9 May 2007 another female employee made a complaint to Mr Marsh about the appellant making the same sort of complaints as previous complainants had made.  On 9 May 2007 Ms Martin recorded the complaint in her capacity as Harassment Contact Officer.

59                  On 10 May 2007 Mr Marsh approached the Human Resources Manager, Mr Fenby at Call Support Canberra and advised Mr Fenby of the appellant’s complaint about Ms Szabados and the complaints which had been made about the appellant by female staff members.  Mr Fenby asked to see all of the material.

60                  On 10 May 2007 a further four complaints were made about the appellant and his conduct.  The next day, on 11 May 2007, another female employee made a further complaint about the appellant’s conduct.  Mr Fenby telephoned Mr Marsh and said that he had looked at all of the complaints.  He said that the appellant should be issued with a formal direction reminding him about the APS Values and Code of Conduct.  Mr Fenby agreed to draft a direction for Mr Marsh’s consideration.  Mr Marsh received that formal direction but it was never published to the appellant because he was not at work again until 22 June 2007.

61                  During the appellant’s absence from work the appellant provided medical certificates from his medical practitioner, Dr Ng which stated that the reason for the appellant’s absence was “adjustment with anxiety mood”; “adjustment disorder with anxiety mood”; and “adjustment disorder with anxiety”.

62                  On 22 May 2007, after seeking Mr Fenby’s further advice, Mr Marsh wrote to Dr Begg in relation to Dr Begg’s 13 March 2007 report enclosing a copy of statements from employees concerning the appellant’s conduct and behaviour.  The next day Mr Marsh wrote to Mr Fenby setting out the contents of the medical certificates provided by the appellant from Dr Ng.

63                  On 28 May 2007 Mr Marsh spoke to Mr Fenby relating to the medical certificates which had been received and the continued absence of the appellant from his employment.  As a consequence of that telephone conversation, Mr Marsh wrote to the appellant on 1 June 2007:

On 7 March 2007 you attended a health assessment conducted by Dr Jules Begg (Consultant Psychiatrist) to review your state of health for the purposes of assessing your fitness to perform your current duties and/or granting personal leave.

Centrelink have received a copy of Dr Begg’s report dated 13 March 2007.

The health assessor’s recommendation is that;

•           ‘Mr Hamden is fit to perform all normal duties’.

•           ‘He does not have a mental incapacity which affects his ability to perform the inherent requirements of his job’.

•           ‘Mr Hamden has the capacity to control his condition.  There is no need to make any changes in the workplace’.

As a result of the health assessor’s recommendation, I am directing you to;

•           ‘Return to work at the Adelaide Call Centre on Monday 4 June 2007 at your previously scheduled start time that is, 9.00am’.

•           ‘As the health assessor has advised that you are fit to return to work, any medical certificate(s) for additional personal leave will not be accepted unless it is for a different medical condition.  If the medical condition is not stated on the certificate we would need to be satisfied that the absence is not related to the original condition.  It would therefore be helpful if all medical certificates that you provide state the medical condition.  Any further medical certificates relating to your original condition will be referred to the appropriate health assessor for advice.’

Please note that if you or Centrelink disputes the health assessor’s recommendation, a review may be requested.  Reviews are undertaken by an appropriate independent registered medical practitioner who was not involved in the original health assessment.

If you wish to request a review of action, you must forward a formal request, together with any new and/or additional medical evidence to myself, Centrelink Call Adelaide, within 14 days of receipt of this advice.

Please note : failure to comply with the formal direction may be dealt with as a suspected breach of the code of conduct.  If you fail to attend without providing an acceptable reason, your absence may be treated as an unauthorised absence.

In accordance with section 15 of the Australian Public Service Act, 1999 a breach in the APS Code of Conduct may result in one or more of the following sanctions being applied;

(a)        termination of employment;

(b)        reduction in classification;

(c)        re-assignment of duties

(d)        reduction in salary;

(e)        deduction from salary, by way of fine;

(f)        reprimand.

Please contact me on 08 XXXX XXXX if you have any queries, or if you wish to discuss any of the above matters.

64                  On the same day Mr Marsh emailed the appellant at the appellant’s wife’s email address explaining that the appellant had been referred to Dr Begg to assess the appellant’s fitness for duty and stating that Dr Begg was an independent specialist psychiatrist qualified to offer an opinion upon which Centrelink could act.  In that email Mr Marsh again directed the appellant to attend work on Monday, 4 June.

65                  On 1 June 2007 the appellant replied using his wife’s email address stating that his treating doctor had issued a valid medical certificate assessing him unfit to work.  He said, “I will not contravene my doctor’s orders and further endanger my health as your (sic) are suggesting.”

66                  On 4 June 2007 the appellant failed to attend work and Mr Marsh wrote to him again:

As I have advised in my email to you of 1 June, Dr Begg’s assessment is that you are fit for duty and as such I am formally directing you to report for work as per your last schedule.

I am aware that you have stated that the reason for your absence is due to management action.  I am of the opinion that that action was undertaken as part of Centrelink’s normal coaching and feedback process.

It is my belief that the management action Centrelink is undertaking is reasonable in the circumstances as I am applying Dr Begg’s recommendations, not as you state, providing my own medical opinion.

Further, I would like you to note that if you fail to attend the workplace as directed, your non attendance will be coded as an Unauthorised Absence.  If you are absent from the workplace without authority for not less than 5 days in a 12 month period, your employment may be terminated for non performance of duty.

67                  On the same day the Rehabilitation Case Manager at Centrelink, Mr Totagiancaspro wrote to the appellant directing him to attend a health assessment with Dr Begg on 13 June 2007.

68                  The appellant replied to Mr Marsh telling Mr Marsh that he had taken legal advice and that the advice was that Mr Marsh’s directive to return to work was not lawful and not reasonable.  He wrote:

You should be aware I will be assessed by Dr Begg on 13 June 2007.

Should his assessment support your view, your formal directive would be both reasonable and lawful.

I therefore request that you re-consider your formal directive unless you see Dr Begg’s assessment.  I believe my request is both reasonable and responsible.

69                  Notwithstanding that communication, the appellant attended his place of employment at about 1305 hours on 6 June 2007 and met with Ms Martin in the company of Mr Oates.  He only remained at work for about five minutes but during that time he was observed to be extremely agitated and upset, shaking and sweating profusely.  He told Ms Martin that Centrelink would not make him resign.  He wanted to know at what stage his complaint about Ms Szabados was.  He told Ms Martin that he was very upset about the directive that had been given him.

70                  At 2.27 pm on the same day the appellant emailed Mr Marsh advising him that he had attended work “albeit under duress”.  He said he had met with Ms Martin and Mr Oates and Mr De Pizzol but felt that he was unable to perform his normal duties so he advised Ms Martin that he would be seeing his treating doctor as soon as possible.  He wrote:

So, I have a proposition to put to you.  It is:  Should my treating doctor of 10 years continue to assess me as being unfit for work at Adelaide Call Centre (but not somewhere else in Centrelink), I am prepared to obey any Formal Directive from you to attend work at TAD, as long as I have in my possession a letter signed by yourself stating that I will not be responsible for my actions at TAD, and that you will bear the responsibility for the consequences of my actions.

71                  At about 7.53am on 7 June 2007 the appellant telephoned Ms Martin to discuss his visit to the Call Centre the previous day.  He asked whether Ms Martin had been in touch with Mr Marsh and was told by Ms Martin that she had sent Mr Marsh an email.  He asked Ms Martin to send Dr Begg a copy of that email so that Dr Begg would know the details of the visit.

72                  At 8.21am on the same day the appellant emailed Mr Marsh advising him that he was “now on unauthorized leave” and advising that he had contacted Ms Martin and asked her to send a copy of his attendance on 6 June 2007 to Dr Begg.

73                  On 8 June 2007 the appellant sent Mr Marsh a number of emails, the first being at 9.01am in which he acknowledged receiving Mr Marsh’s letter advising he had been on unauthorised leave as from 4 June 2007 notwithstanding, as the appellant said, that he had complied with the directive to attend the workplace on 6 June.  He requested that Ms Martin and Mr Oates attend the assessment with Dr Begg on 13 June 2007 and demanded an explanation if that request was refused.  The next email was at 11.45am claiming that Centrelink was being inconsistent about the way it was treating his leave.

74                  Next he wrote at 6.37pm asking whether it was agreed that Ms Martin and Mr Oates would attend his appointment with Dr Begg.  He said that Dr Ng had been trying to contact Mr Marsh wanting to know why Mr Marsh had refused to change Team Leaders despite his numerous concerns.

75                  On 9 June the appellant wrote to Mr Marsh requesting copies of all advices and directives he had received from Canberra/NSO on this matter.

76                  On 12 June 2007 Dr Begg responded to Mr Marsh’s letter of 22 May 2007.  Dr Begg did not think that health professionals could assist the appellant.  He was of the opinion that the appellant needed to be educated as to appropriate behaviour:

... including the inappropriateness of discussing personal issues with females, particularly where there is any sexual or violence reference.  This includes jokes.

77                  On the same day the appellant wrote to Mr Marsh asking that his absence from his employment be treated as either recreational leave or long service leave.  Mr Marsh sought Mr Fenby’s advice in relation to the request made and was advised to refuse the request on the ground that the request was not appropriate.  Mr Marsh responded to the appellant in the terms of the advice given him by Mr Fenby.  In accordance with the advice given by Mr Fenby, Mr Marsh requested that the appellant attend for duty on 13 June prior to his specialist appointment at 3.00pm.  The appellant was again advised that his continued failure to attend for duty would result in his absence being coded as unauthorised.

78                  On 12 June 2007 Mr Fenby spoke by telephone to Dr Ng about the appellant.  Mr Fenby made notes of that conversation.  Having regard to the issues I will set out those notes:

•           Dr Ng advised that there are “a lot of issues with him” (David)

•           Dr Ng advised that he felt mediation or a compromise should be discussed to get David back to work

•           Dr Ng said that it was “quite unfortunate that something so little developed into something so big”

•           Dr Ng advised that David is “quite adamant” that we (Centrelink) are not understanding of his condition.

•           Dr Ng advised that he has explained to David that anxiety issues are different to personality issues and again advised that David is adamant that Centrelink is not understanding of his condition

•           I advised Dr Ng of Centrelink’s previous attempts to accommodate David over the years with regards to chagnign seating arrangements, floors within the Centre, Teams and Team Leaders etc, however David’s behaviours remain unchanged

•           Dr Ng asked what would happen next and asked whether Centrelink will take action against David

•           I advised that David had been referred back to an independent Specialist.  Dr Ng said that this was “good”.

•           Dr Ng confirmed that he had received Dr Begg’s previous report of March/April

•           Dr Ng advised that he and David are aware of the difference between anxiety and personality issues

•           Dr Ng advised that David has unrealistic expectations

•           I advised Dr Ng of what had transpired between David, Bronwyn and the customer that provided feedback.  I advised that Bronwyn had taken the appropriate action in providing immediate feedback.

•           Dr Ng advised that he had “no doubt” that the Team Leader would’ve done what was needed

•           Dr Ng advised that he feels that a change in Team Leader for the “time being” would be appropriate as he feels that the Team Leader is being used as a barrier to returning to work by David

•           I explained that it was our opinion that transferring David or changing his Team Leader would not be an appropriate solution as it had not worked in the past as the issue was David’s to resolve and that he needed to develop a rapport with one member of the leadership team.

•           Dr Ng advised that David stated that he can return to work provided that he doesn’t have to deal with the Team Leader and that he is “capable” of returning to work

•           Dr Ng was asked why he continues to issue medical certificates if he believes that David is fit to return to work.

•           Dr Ng advised that David tells him that he feels like hurting someone when he is feeling anxious.  Dr Ng advised that he is unwilling to risk David hurting someone if he certifies him fit to work

•           Dr Ng advised that if the Specialist states that David is fit to return to work, then he is “all for it” and he will support the recommendation.

79                  On 13 June 2007 the appellant was assessed by Dr Begg.  On the same day Mr Marsh wrote to the appellant advising him that his complaint about Ms Szabados had been dismissed.

80                  On 14 June 2007 the appellant again requested that Mr Marsh review his decision regarding the direction to be placed on unauthorised leave for not attending work and again asked that he be granted personal leave from 4 June to 26 June 2007.  Mr Marsh again sought advice from Mr Fenby and on 15 June 2007, as a consequence of that advice, wrote to the appellant advising him that the formal direction previously issued was still applicable and that he was scheduled to attend work at 9.00am on Monday, 18 June.

81                  He wrote:

I would like you to note that if you fail to attend the workplace as directed, your continued non attendance will be coded as Unauthorised Absence for each day you do not attend the workplace.  If you are absent from the workplace without authority for not less than 5 days in a 12 month period, your employment may be terminated for non performance of duty.

You should be aware that you have now had a total of 71 hours and 25 minutes recorded as an Unauthorised Absence.

82                  On 21 June 2007 Dr Begg published his third report which was sent to Centrelink for the attention of Ms Sandi Bradley.  Dr Begg approached his assessment by asking the appellant to confirm the previous historical details, especially for the period between 30 October 2006 and until 7 March 2007 when he was last assessed by Dr Begg.  Dr Begg records that the appellant agreed with all aspects of his report dated 13 March 2007.

83                  Dr Begg took a history of the appellant’s progress since his last assessment, especially a history of the appellant’s short return to work on 6 June 2007.  It is not necessary to recite the history given to Dr Begg which is not materially different to the objective history which has already been described.

84                  Dr Begg was of the opinion that the appellant suffered from anxiety disorder which had been present for many years which results in panic attacks.  The anxiety disorder is but one of the appellant’s problems.  The appellant’s other problem is his personality.  Dr Begg said that people with anxiety disorders often develop a controlling aspect to their personality in order that they may control the external environment so as to hide the experience of a lack of internal control.

85                  Dr Begg was of the opinion that the appellant was fit for all normal duties.  He was of the opinion that the appellant was capable of controlling his behaviour, although sometimes he will have strong emotions or experiences which other people might find unhelpful.  Dr Begg was of the opinion that the appellant does not have a mental illness that prevents him from behaving appropriately in the workplace.

86                  Dr Begg was of the opinion that the appellant’s anxiety was unlikely to require ongoing management in the workplace, but his personality would cause continuing conflict in the workplace as his capacity to assess reality is hampered by the immaturity of his psychological defence mechanisms.

87                  On 19 June 2007 Mr Marsh wrote to the appellant:

Apart from a period of time on 13 June 2007, when you were “Absent on Duty” to attend a specialist appointment with Dr Jules Begg, you have been absent from duty without authority since 4 June 2007.  As a consequence of these absences I am considering terminating your employment on the grounds of non-performance of duties in accordance with section 29(3)(c) of the Public Service Act 1999.

On 1 June 2007 you were issued with a Formal Direction to return to work from the commencement of your scheduled working hours on Monday, 4 June 2007.  Despite several reminders to you of the implications of not complying with this Formal Direction you have failed to return to Adelaide Call to resume your scheduled duties.  The total amount of Unauthorised Absence recorded for you as at close of business today is 78 hours and 36 minutes.

Before I make a decision in relation to this matter you have the opportunity to provide reasons why termination of your employment would be unreasonable.  You should ensure that any comments you have reach me by 26 June 2007.

On 27 June 2007 I will consider any comments that you have made and make a decision on whether or not to terminate your employment.  I will advise you of my decision at that time.

It should be noted that resumption of duty or notification of your absence does not stop this process.  That is, I will still consider whether or not it is appropriate to terminate your employment as a result of your unauthorised absence.

Should you have any queries on this matter I can be contacted on 8209 9022.

88                  On 22 June 2007 the appellant attended work and reported to Mr Marsh who asked him whether he was reporting for duty and was given an affirmative answer.  Mr Marsh said he was still considering action in respect of the previous absences.  Mr Marsh told the appellant that the appellant’s desk had been moved and he would show him his new position.  While he was escorting the appellant to his desk he told the appellant that Bronwyn Szabados was still his Team Leader and he expected the appellant to treat her with the same courtesy and respect as he would treat any other Team Leader.  On the same day the appellant wrote to Mr Marsh asking for a convenient time on the next Monday or Tuesday to put forward his defence.  He said that he would expect that Mr Paul Roberts of the CPSU would also attend.

89                  The appellant attended work between 22 June and 25 June 2007, and on 25 June 2007 provided a statement of reasons as to why his employment should not be terminated.  The principal argument advanced in the statement of reasons as to why his employment should not be terminated was because Dr Begg was not his treating doctor and the appellant was not able to consult him about the panic attack which gave rise to the absence from employment.

90                  On the same day as the statement of reasons was given to Mr Marsh, Mr Fenby prepared a draft notice of termination for use by Mr Marsh.

91                  On 26 June 2007 the appellant met with Mr Marsh when Mr Marsh handed the appellant a letter of termination dated 26 June 2007, which was in a similar form as the draft which had been prepared by Mr Fenby but included more detail.

92                  The appellant’s employment terminated at that time.

93                  On 3 July 2007 the appellant filed an application claiming unfair dismissal in the Australian Industrial Relations Commission which was subsequently discontinued.

94                  On 31 July 2007 the appellant applied in the Industrial Relations Court of South Australia in relation to a claim for unpaid wages.

95                  On 31 August 2007 the appellant lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC) which was responded to by Centrelink on 30 January 2008.

96                  On 27 March 2008 a notice of termination was issued pursuant to s 46PH(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) on the ground that the President of HREOC was satisfied that the complaint had no reasonable prospect of conciliation.

97                  On the same date the appellant was advised of his rights to bring a claim in the Federal Magistrates Court.  On 16 April 2008 he brought a proceeding in this Court pursuant to s 49PO(1) of the HREOC Act claiming that he had been discriminated against on the basis of his disability and claiming contraventions of ss 5(1), 6 and 15(2)(c) and (d) of the DD Act.  That proceeding was transferred to the Federal Magistrates Court on 30 May 2008.

98                  In that proceeding he sought compensation together with an order seeking reinstatement of his employment and the reinstatement of his emoluments as an employee.

99                  The appellant was unrepresented before the Federal Magistrate, as he was on the appeal, but the Federal Magistrate did have the assistance of counsel who appeared for Centrelink.  Counsel identified five possible claims by the appellant which might amount to unlawful discrimination:

a)         An event in March 2007 when the applicant requested a call escalation to his Team Leader, Ms Szabados.  The applicant says she was reluctant to allow this and said: “I know you have a mental illness but I will not treat you any differently from any other team members” (“the First Call Escalation Complaint”);

b)         An event on 3 May 2007 when the applicant requested a call escalation to this Team Leader, Ms Szabados.  The Applicant says she asked him to transfer to another CSA rather than take herself and then called a meeting with him at which time she discriminated against him on the basis of his disability (“the Second Call Escalation Complaint”);

c)         The respondent’s failure in April and June 2007 to accede to the applicant’s requests that he have a Team Leader other than Ms Szabados (“the Change in Team Leader Complaint”);

d)         The respondent’s failure to accept Dr Ng’s medical certificates and to grant the applicant leave based on those certificates (“the Medical Certificates Complaint”); and

e)         The respondent’s termination of the applicant’s employment on 26 June 2007 (“the Termination Complaint”).

100               The Federal Magistrate first considered the legislative and legal framework upon which a claim for disability discrimination arises and then addressed the applicant’s case by reference to the five separate possible grounds which had been identified by the respondent’s counsel.

101               In doing so the Federal Magistrate noted that the appellant had not articulated with any clarity whether the appellant relied on both direct and indirect discrimination.  The Federal Magistrate said that the claim raised suggested a case of direct discrimination, especially in view of the fact that the appellant had not provided any evidence of a conditional requirement which would be necessary if the appellant’s claim was also based on indirect discrimination.

102               As to the first claim, the Federal Magistrate noted that the appellant abandoned that claim during his final submissions but persisted with the second claim which the Federal Magistrate had identified as the Second Call Escalation Complaint.  The Federal Magistrate however addressed the factual circumstances relating to the First Call Escalation Complaint so as to understand the further facts which gave rise to the Second Call Escalation Complaint.  I have already recited the facts relating to the First Call Escalation Complaint which occurred in March 2007 which the appellant said gave rise to a dispute between Ms Szabados and himself.  This is a conversation in which the appellant alleged that Ms Szabados said “I know you have a mental illness but I will not treat you any differently from any other team members”, a claim which Ms Szabados denied.

103               The Federal Magistrate then addressed the Second Call Escalation Complaint which occurred on 3 May 2007 when the appellant felt a panic attack coming on as a result of a customer complaint.  Again I have already recited the facts relating to that event.

104               The Federal Magistrate found that Ms Szabados and Mr Marsh were impressive and reliable witnesses who each gave a credible and coherent account of the events.  He found that the appellant on the other hand was unimpressive as a witness.  The Federal Magistrate said:

Whether by reason of his anxiety condition or his personality, I felt that he was not giving a credible version of events and would say whatever was needed to advance his case.

105               The end result of his Honour’s assessment of the witnesses was that he would only accept the evidence of the appellant where it did not conflict with the evidence of either Ms Szabados or Mr Marsh.

106               The Federal Magistrate set out his findings on this aspect of the appellant’s evidence in [58] of his reasons which were:

a)         Ms Szabados did not speak to the applicant sarcastically at their meeting on 3 May 2007;

b)         Ms Szabados did not subject the applicant to a detriment during the meeting on 3 May 2007;

c)         Ms Szabados did not treat the applicant differently or adversely because of his anxiety disorder;

d)         Ms Szabados was concerned with the applicant’s welfare;

e)         as the applicant’s Team Leader it was appropriate for Ms Szabados to counsel the applicant and remind him about the protocols;

f)         there is no evidence that, had an employee without the applicant’s disability escalated the call, he or she would have been treated differently to the applicant; and

g)         the circumstances of the Second Call Escalation Complaint raise no conduct which attracts the operation of s.5(1) and s.15(2)(d) of the DD Act.

107               Next the Federal Magistrate addressed the third possible complaint which he characterised as “The Change in Team Leader Complaint”.

108               This complaint related to medical certificates which had been given by Dr Ng, which showed that Dr Ng believed that the appellant was anxious as a result of having to work with Ms Szabados as his Team Leader and that his work environment should be changed.

109               The Federal Magistrate addressed Dr Begg’s report of 13 March 2007 and, in particular, Dr Begg’s opinion that a personality of the kind which the appellant has means that in the workplace he is maladaptive and difficult to manage and often not responsive to normal social interactions.  Dr Begg’s opinion was that the appellant would frequently misperceive the intentions of others, viewing things from his own perspective and concluding the actions of others were directed against him.

110               The Federal Magistrate preferred Dr Begg’s evidence to Dr Ng’s because Dr Begg was better qualified to offer an opinion on the appellant’s mental health, as Dr Ng agreed.

111               The Federal Magistrate also addressed a report which had been given by Dr Synnott, a consulting psychiatrist, which was considered by Dr Begg who offered the further opinion that the appellant’s anxiety arises because of his personality rather than as a result of interpersonal relationships in the workplace.

112               He concluded:

64.       I accept Dr Begg’s evidence that the applicant’s increased levels of anxiety in the workplace are caused by his personality, a personality that makes it difficult for him to deal with workplace interpersonal relationships.  This being the case, taking steps to have the applicant supervised by a Team Leader other than Ms Szabados is unlikely to have lowered the number of occasions that he felt anxiety in the workplace.  This is confirmed by the evidence of Mr Marsh during his cross-examination by the applicant:

Question:         ... under what circumstances would you have changed my team leader?  That is, what had to happen … did I actually have to create a real incident in the workplace whereby people got scared because I lost my temper or something like that?  What had to happen before you considered it, to change my team leader?

Answer:           I was aware that you have an anxiety issue.  I was aware of some of the issues that had taken place in the workplace prior to that period.  I was also comfortable that you were able to control your emotions and engage with people.  Certainly, in terms of your relationship with Ms Szabados, I knew you had concerns working with her as the team leader, but I certainly did not believe that she had any concerns working with you.  I don’t believe that changing the team leader would have changed the situation at all.

His Honour:    Why not?

Answer:           I think the fundamental issue was around the way Mr Hamden works with his peers and his team leaders, and I don’t believe that any other team leader would have negated those issues.  (Footnotes omitted.)

113               The Federal Magistrate was of the opinion that the appellant’s complaints did not come within s 15(2) of the DD Act.  He said that even if he is wrong about that there was no evidence that Mr Marsh or anyone else on behalf of the respondent refused to make the change that the appellant requested because of the appellant’s disability.  The evidence showed, the Federal Magistrate said, that on the contrary the appellant refused to make the change on the advice of Dr Begg.

114               He said that as well there was no evidence of any CSA employee without an anxiety disorder who requested a change of Team Leader would have been successful in that request.  Mr Marsh said that he would generally not accede to such demands and the Federal Magistrate accepted that evidence.

115               Next he referred to the Medical Certificates Complaint, being the fourth complaint identified above.

116               The appellant’s complaint in this regard was that the respondent refused to accept medical certificates from Dr Ng as a proper basis for him not to attend work on an ordinary work day.  He said that in refusing to accept Dr Ng’s certificates the appellant was obliged to attend work which amounted to unlawful disability discrimination.

117               The Federal Magistrate discussed the events between 31 May 2007 and 26 June 2007 which I have outlined above and, in particular, Mr Fenby’s involvement.  The Federal Magistrate recounted that Mr Fenby had spoken to Dr Ng on 12 June 2007 and during that conversation Dr Ng said that if Dr Begg had stated that the appellant was fit to return to work then he was “all for it” and would support the recommendation.

118               The Federal Magistrate concluded:

79.       There is no sufficient evidence before me to make a finding that the respondent’s refusal to grant leave and to require the applicant to attend work was because he had a disability, namely an anxiety disorder.  I find that the respondent’s decision to prefer the opinion of Dr Begg to that of Dr Ng had nothing to do with whether or not the applicant had a disability.

80.       Further, there was no evidence before me to suggest that if an employee without a disability made requests in the same circumstances as those that existed for the applicant here, that the other employee would have had leave approved.  Mr Marsh specifically stated in his evidence that if any other employee had requested leave in the same circumstances that his decision would have been the same.  I note also that on 12 June 2007 Mr Marsh advised the applicant that the respondent would prefer the opinion of a specialist over that of a general practitioner.

81.       The respondent refused to accept Dr Ng’s medical certificates because the respondent believed, on the basis of Dr Begg’s advice, that the applicant did not have a disability that prevented him from working.  This being the case there can be no unlawful discrimination.  (Footnotes omitted.)

119               The Federal Magistrate turned his attention to the lastmentioned possible complaint which was the Termination Complaint, which he dismissed because the evidence showed that Mr Marsh’s only reason for terminating the appellant’s employment was because of his unauthorised absences from the workplace and was not as a result of the appellant suffering a disability.

120               His Honour concluded:

84.       I find that the applicant had no proper basis for refusing to attend work.  Whilst I accept that the applicant had an anxiety disorder and therefore a disability, this disability did not generally prevent him from working.  In my opinion the applicant was malingering.  It was this malingering that resulted in the applicant not attending work for lengthy periods.  He was dismissed for not attending work and not because of his disability.  There was no unlawful discrimination.

121               The 25 grounds of appeal in the amended notice of appeal mainly relate to the factual findings made by the Federal Magistrate:

1.         The Learned Magistrate erred in his finding that I did not provide “any evidence of a “condition” or “requirement” as would be necessary if his claim was also for indirect discrimination.  In addition, there is no evidence from the applicant addressing a base pool, the proportion of persons complying with the alleged condition or requirement or the issue of the reasonableness of any alleged condition or requirement.”

2.         The Learned Magistrate erred in his finding “notwithstanding that he was showing visible signs of his disability being aggravated.  He does not say what those visible signs were.”

3.         The Learned Magistrate erred in his finding “During this meeting the applicant denied he had suffered a panic attack prior to the call being escalated.”

4.         The Learned Magistrate erred in his finding that “They each gave a credible and coherent account of the events”, and he “would only accept the evidence of the applicant where it does not conflict with the evidence of either Ms Szabados or Mr Marsh.”

5.         The Learned Magistrate erred in his finding that “Ms Szabados did not subject the applicant to a detriment during the meeting on 3 May 2007”.

6.         The Learned Magistrate erred in his finding to accept the evidence of Dr Begg.

7.         The Learned Magistrate erred in that he failed to consider the evidence of Dr Synnott and Dr Ng.

8.         The learned Magistrate erred in his finding “This being the case, taking steps to have the applicant supervised by a Team Leader other than Ms Szabados is unlikely to have lowered the number of occasions that he felt anxiety in the workplace.”, that is, s. 6(b) of DD Act did not apply.

9.         The Learned Magistrate erred in his finding “There is, however, no basis upon which the conduct complained of in relation to this complaint can amount to a detriment for the purpose of s. 15(2)(d).”

10.       The Learned Magistrate erred in his finding that s. 6 and s. 15(2)(d) of the DD Act did not apply in relation to “The Change in Team Leader Complaint.

11.       The Learned Magistrate erred in his finding “Even if I am wrong in this, there is no satisfactory evidence that Mr Marsh or anybody else on behalf of the respondent refused to make the change that the applicant requested because of the applicant’s disability.” As s. 6 of the DD Act does not require the “because of the disability” provision as does s. 5 of the DD Act.

12.       The Learned magistrate erred in his finding “The evidence shows that in refusing to make the change the respondent was acting on the advice of Dr Begg.”

13.       The Learned Magistrate erred in his finding that “the applicant has failed to establish that if a CSA without an anxiety disorder requested a new team leader that the respondent would have acceded to that request.” As the comparator test is not a requirement of s. 6 of the DD Act, but a requirement of s. 5 of the DD Act.

14.       The Learned Magistrate erred in his finding that s. 5(1) and s. 15(2)(d) did not apply in relation to “The Medical Certificates Complaint”.

15.       The Learned Magistrate erred in his finding that “the respondent obtained the opinion of Dr Begg” and “Dr Begg’s evidence was that the applicant’s anxiety did not make him unfit for duty for long periods of time.”

16.       The Learned Magistrate erred in his finding that “referring to Dr Begg’s assessment of 7 March 2007 that the applicant was fit to perform all normal duties”.

17.       The Learned Magistrate erred in his finding that “During the conversation Dr Ng said that if the specialist (Dr Begg) stated that the applicant was fit to return to work then he was “all for it” and would support the recommendation.”

18.       The Learned Magistrate erred in his finding that “Dr Begg stated that it would be reasonable for the applicant to have half a day’s sick leave if he experienced a panic attack but that there was no need to have a sick day the next day.”

19.       The Learned Magistrate erred in his finding that “Dr Begg also expressed the view that the applicant’s behaviour was “in his control.”

20.       The Learned Magistrate erred in his finding “He was declared fit for normal duties.”

21.       The Learned Magistrate erred in his finding “I find that the respondent’s decision to prefer the opinion of Dr Begg to that of Dr Ng had nothing to do with whether or not the applicant had a disability.”

22.       The Learned Magistrate erred in his finding “Further, there was no evidence before me to suggest that if an employee without a disability made requests in the same circumstances as those that existed for the applicant here, that the other employee would have had leave approved.”

23.       The Learned Magistrate erred in his finding “The respondent refused to accept Dr Ng’s medical certificates because the respondent believed, on the basis of Dr Begg’s advice, that the applicant did not have a disability that prevented him from working.  This being the case there can be no unlawful discrimination.”

24.       The Learned Magistrate erred in his finding that “the applicant had no proper basis for refusing to attend work.” And “In my opinion the applicant was malingering.”

25.       The Learned Magistrate erred in his finding that “There was no unlawful discrimination.”, that is, the termination of my employment was not a breach of s. 15(2)c of the DD Act.

122               Before I deal with those grounds it is necessary to refer to the legislation upon which the appellant’s proceeding was based.

123               The appellant’s claims related to events which occurred prior to the enactment of the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (No. 70-2009) which came into force on 5 August 2009 and so regard must be had to the DD Act prior to that date.

124               The relevant object of the DD Act is to eliminate as far as possible discrimination against persons on the ground of disability in the area(s) of work ...: s 3 of the DD Act.

125               Disability is defined in s 4 of the DD Act but I do not need to address that definition because there was no dispute before the Federal Magistrate or on appeal that the appellant suffered from an anxiety disorder which would be a disability for the purpose of the DD Act.  Disability discrimination is defined in s 4 to have the meaning given in ss 5 to 9 of the DD Act.  Discriminate also has the meaning given in ss 5 to 9 of the DD Act.

126               Employment is defined in s 4 to include work as a Commonwealth employee.  There was no dispute before the Federal Magistrate or on appeal that the appellant was a Commonwealth employee and that there was an employment relationship.

127               Part 2 of the DD Act prohibits disability discrimination.  Division 1 deals with discrimination in work.  Section 15 deals with discrimination in employment.

128               Relevantly, s 15(2) of the DD Act provides:

(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 ...

            (c)        by dismissing the employee; or

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

129               The DD Act addresses two forms of disability discrimination, namely direct discrimination (s 5(1)) and indirect discrimination (s 6).

130               As I have already noted, it was never entirely clear at the trial whether the appellant purported to claim indirect discrimination as well as direct discrimination but, insofar that he did, the Federal Magistrate found that the necessary evidence to support such a claim was absent.

131               Again on appeal it has not been clear, at least to me, whether the appellant claimed that he was discriminated against indirectly as well as directly.

132               For completeness I shall address the case as though the claim were based on both direct and indirect discrimination.

133               Section 5(1) of the DD Act deals with direct disability discrimination.  It relevantly provides:

(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.

134               That subsection was considered in Purvis v State of New South Wales (2003) 217 CLR 92.  To succeed in a claim for direct discrimination under the DD Act the appellant would have needed to establish first, that Centrelink had treated the appellant less favourably than a Centrelink employee without the same anxiety disorder; secondly, that Centrelink has done so in circumstances that are the same or not materially different between the appellant and that other Centrelink employee; and thirdly, the reason for doing so was the appellant’s anxiety disorder.

135               At the relevant time the DD Act did not require an employer to take affirmative action in respect of an employee with a disability.  There was no obligation for an employer to make adjustments to accommodate employees with a disability: Purvis v State of New South Wales 217 CLR 92 at 203.

136               Section 6 of the DD Act addresses indirect disability discrimination and it provides:

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 the discriminator requires the aggrieved person to comply with a requirement or condition:

(a)        with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b)        which is not reasonable having regard to the circumstances of the case; and

(c)        with which the aggrieved person does not or is not able to comply.

137               To succeed in a claim for indirect discrimination the appellant had to establish that Centrelink required him to comply with a requirement or condition which was not reasonable and with which a substantially higher proportion of persons without an anxiety disorder can or do comply and with which the appellant cannot or is not able to comply.  The requirement or condition needs to be identified with some precision: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185-191.

Grounds 1, 8, 10, 11 and 13

138               In these five grounds the appellant appears to be complaining that the Federal Magistrate failed to find that there was a claim of indirect disability discrimination within the meaning of s 6 of the DD Act.

139               The Federal Magistrate found:

34.       In the present case the applicant has not identified with any clarity whether he relies on both direct and indirect discrimination.  The claim raised on the documents and the evidence adduced by the applicant suggests that his is a case of direct discrimination.  The applicant has not provided any evidence of a “condition” or “requirement” as would be necessary if his claim was also for indirect discrimination.  In addition, there is no evidence from the applicant addressing a base pool, the proportion of persons complying with the alleged condition or requirement or the issue of the reasonableness of any alleged condition or requirement.  It was for these reasons that the respondent decided to limit its submissions to the question of direct discrimination.

140               In my opinion, the Federal Magistrate was right to conclude that the appellant had not identified any “requirement” or “condition” upon which a claim under s 6 of the DD Act could be established.  Moreover, the Federal Magistrate was right to conclude as he did that there was no evidence that there was a requirement or condition with which a substantially higher proportion of persons without an anxiety condition complied or were able to comply.

141               There was, as the respondent has contended on the appeal, a complete absence of evidence relevant to the various elements of indirect discrimination and that was because the appellant did not proceed upon a complaint that the respondent had indirectly discriminated against him.  The case which was presented before the Federal Magistrate was always one of direct discrimination rather than indirect discrimination.

142               The respondent also contended that direct and indirect discrimination are mutually exclusive: Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46 at 55.  I think that submission to be right, but I do not need to address it because in my opinion the appellant’s grounds of appeal fail because there is an absence of evidence of the kind which would be necessary to make out a claim for indirect discrimination.  There is simply no identification of any requirement or condition.

Ground 2

143               No complaint can be made of the Federal Magistrate’s finding.  The meeting referred to was the meeting of 3 May 2007 when the appellant claimed that Ms Szabados asked him to transfer a caller.  At the meeting under consideration, Ms Szabados told the appellant that he should not have escalated the call because the agreement was that he could only escalate a call if he had a panic attack.  He was not suffering a panic attack and therefore he had not complied with the agreed protocol.  The appellant’s affidavit evidence upon which the appellant relied at the trial did not address the issue as to what visible signs of his disability were being aggravated during the meeting.

Ground 3

144               This ground addresses the Federal Magistrate’s finding in relation to Ms Szabados’ evidence that during the meeting of 3 May 2007 the appellant denied that he had suffered a panic attack prior to the call being escalated.  That was Ms Szabados’ evidence.  The Federal Magistrate was entitled to prefer her evidence to the appellant’s, which he did.  No error has been demonstrated in the Federal Magistrate’s reasons.

Ground 4

145               This ground seeks to attack the Federal Magistrate’s reasons for preferring the evidence of Ms Szabados and Mr Marsh to that of the appellant.

146               It cannot be said to be an error for the Federal Magistrate to prefer the evidence of one or more witnesses to that of another witness, even if that other witness is a party to the proceeding.  The Federal Magistrate was entitled to reach a conclusion as to the more reliable and credible evidence.  Of course if there is no evidence to support that finding then that might amount to an error of law and would be a reason for this Court to intervene.

147               However, the appellant did not attempt to point to any evidence which supported this ground and, in those circumstances, it would be appropriate for this Court to proceed upon the basis explained in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 where Brennan, Gaudron and McHugh JJ said:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

148               This is not a case of the kind addressed by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588.  As I have said, the appellant was not able to point to any evidence either given by him or by the witnesses which would indicate that the Federal Magistrate failed to use the advantage which he had in hearing the witnesses or had acted on evidence which was inconsistent with other evidence or had arrived at a decision which was glaringly improbable.  This ground must be dismissed.

Grounds 5, 9, 10 and 14

149               These separate grounds complain of the factual finding that the appellant was not subject to any detriment in relation to the several claims and therefore s 15(2)(d) was not engaged.

150               For s 15(2)(d) to operate the employee needs to establish that he or she has suffered some detriment in the sense of some sort of disadvantage which is more than trivial.  Whether that employee has suffered any detriment is to be answered objectively: O’Callaghan v Loader (1983) 3 NSWLR 89.  That decision, which was a decision of Matthews DCJ, as she then was, as Chair of the Equal Opportunity Tribunal, was followed by Graham J in Varas v Fairfield City Council [2009] FCA 689, a decision from which special leave to appeal to the High Court was refused.

151               The appellant claimed that he was subjected to detriment in three separate respects: first, Ms Szabados’ conduct in the meeting which has been described as the Second Call Escalation Complaint on 3 May 2007; secondly, the respondent’s refusal to allocate him a new Team Leader; and thirdly, the respondent’s refusal to accept Dr Ng’s certificates over the advice of a specialist to the effect that the appellant was fit to work.

152               The first claim failed because the Federal Magistrate found that Ms Szabados did not conduct herself inappropriately during that meeting and as a consequence there was no factual basis to contend that her conduct subjected the appellant to a detriment.

153               The respondent did not dispute that the appellant demanded a change of Team Leader and that the respondent refused to transfer the appellant to a new Team Leader or remove Ms Szabados as Team Leader.  The Federal Magistrate found that those circumstances did not constitute a detriment and there is no reason to overturn that finding.

154               As to the third matter it is right that the Federal Magistrate preferred Dr Begg’s evidence to Dr Ng’s because, as the Federal Magistrate reasoned, Dr Begg was better qualified to give opinions on the appellant’s mental health than Dr Ng, which was acknowledged by Dr Ng.

155               In my opinion, there was no error in his Honour proceeding upon that basis, especially having regard to Dr Ng’s evidence.

156               For that reason, the appellant did not make out any detriment.

Grounds 6, 12, 15, 16, 18, 19, 20, 21 and 23

157               These grounds raise the last matter discussed in the previous ground.

158               The respondent’s case at trial was that Dr Begg’s advice to the respondent was that the appellant’s disability did not mean that the appellant was not able to perform his duties.  It was Dr Begg’s opinion that the appellant’s personality was the cause of his problems in the workplace rather than his anxiety disorder which was the disability.

159               In my opinion, the Federal Magistrate was able on Dr Begg’s evidence to reach that conclusion even though the appellant said that he “totally disagreed” with Dr Begg’s opinion that his personality was a significant problem.

Ground 7

160               This ground of appeal is without foundation.  The Federal Magistrate’s own reasons show that the Federal Magistrate considered the evidence of Dr Synnott and Dr Ng in reaching his conclusion.  Unfortunately from the appellant’s point of view, the Federal Magistrate preferred the evidence of Dr Begg.

Grounds 17, 22, 24 and 25

161               These lastmentioned grounds address the Federal Magistrate’s refusal to find that the appellant’s employment was terminated because of his anxiety disorder disability.

162               In my opinion, the Federal Magistrate was entitled on the evidence to so find.  The respondent terminated the appellant’s employment because the appellant refused to perform his duties relying upon s 29(3)(c) of the Public Service Act 1999 (Cth).

163               There really is no dispute that after 9 May 2007 the appellant did refuse to perform his duties in circumstances where he was warned on a number of occasions that if he refused to return to work his employment might be terminated for non-performance of duty.

164               On 1 June 2007 Mr Marsh wrote to the appellant directing him to return to work.  On 4 June 2007 the appellant was warned by Mr Marsh that if he failed to return to work his absence would be treated as an unauthorised absence and that his employment might be terminated for non-performance of duty.  On 5 June 2007 the appellant disputed Mr Marsh’s authority to require him to return to work, but on 13 June 2007 the appellant told Dr Begg that his legal advice was that he should comply with Mr Marsh’s direction.  On 6 June 2007, in response to Mr Marsh’s advice, the appellant did attend at the workplace albeit “under duress” but he did not perform any duties.

165               In response to the appellant’s request on 12 June 2007, Mr Marsh told the appellant that he had refused that request for recreational leave and again directed him to return to work the following day, a direction with which the appellant failed to comply.

166               On 15 June 2007 Mr Marsh wrote to the appellant again reminding him of the direction and requiring him to report to work on Monday, 18 June 2007, again a direction with which the appellant failed to comply.

167               On 19 June 2007 Mr Marsh wrote to the appellant advising the appellant he was considering terminating the appellant’s employment because of the continued unauthorised absences from the workplace.

168               It was Mr Marsh’s evidence, which the Federal Magistrate accepted, that the respondent terminated the appellant’s employment for non-performance of his duties.  The Federal Magistrate was entitled to find, as he did, that the appellant was not dismissed because of his anxiety disorder disability but was dismissed because he failed to perform his duties.

169               In my opinion, all of the grounds of appeal fail and the appeal must be dismissed.

170               The appellant must pay the respondent’s costs.

Associate:

Dated:         27 August 2010