FEDERAL COURT OF AUSTRALIA
Watts v Australian Postal Corporation [2014] FCA 370
| Solicitor for the Applicant: | AED Legal Centre |
| Counsel for the Respondent: | Ms R Nelson |
| Solicitor for the Respondent: | Minter Ellison |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant |
| AND: | Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT DECLARES THAT:
1. Between 29 June 2010 and 26 October 2010, by not making reasonable adjustments for the applicant to perform her work as a bid manager, the respondent contravened s 15(2)(b) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
2. The respondent re-credit to the applicant 50% of any sick leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
3. The respondent re-credit to the applicant 75% of any recreation leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
4. The respondent re-credit to the applicant 100% of any long service leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
5. On or before 4.00pm on Friday 2 May 2014, each party file and serve any further proposed orders or variations to these orders they submit are appropriate in light of the Court’s findings and reasons, together with any submissions they wish to make on orders as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1082 of 2012 |
| BETWEEN: | ANDREA WATTS Applicant |
| AND: | AUSTRALIAN POSTAL CORPORATION Respondent |
| JUDGE: | MORTIMER J |
| DATE OF ORDER: | 11 April 2014 |
| WHERE MADE: | MELBOURNE |
THE COURT DECLARES THAT:
1. Between 27 October 2010 and 21 April 2011, by not making reasonable adjustments for the applicant to perform her work as a bid manager, the respondent contravened s 15(2)(b) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
2. The respondent re-credit to the applicant 50% of any sick leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
3. The respondent re-credit to the applicant 75% of any recreation leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
4. The respondent re-credit to the applicant 100% of any long service leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
5. The respondent pay compensation to the applicant, in the sum of $10,000.
6. On or before 4.00pm on Friday 2 May 2014, each party file and serve any further proposed orders or variations to these orders they submit are appropriate in light of the Court’s findings and reasons, together with any submissions they wish to make on orders as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1293 of 2011 VID 1082 of 2012 |
| BETWEEN: | ANDREA WATTS Applicant |
| AND: | AUSTRALIAN POSTAL CORPORATION Respondent |
| JUDGE: | MORTIMER J |
| DATE: | 11 April 2014 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION AND SUMMARY
1 There are applications for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth), in respect of alleged contraventions of the Disability Discrimination Act 1992 (Cth) (the DDA). There are two proceedings, covering different periods of time, which have been heard and determined together. The first proceeding concerns allegations against the Australian Postal Corporation (Australia Post), the respondent to both proceedings, in respect of conduct between June 2010 and 26 October 2010. The second proceeding concerns allegations against Australia Post in respect of conduct between February 2011 and 29 July 2012, as well as allegations of the continuation of the discrimination alleged in the first proceeding. In that sense, there are allegations of unlawful discrimination by Australia Post from the period of June 2010 through to 29 July 2012.
2 The following summary reflects the findings I have made on the evidence. The applicant, Ms Watts, is a bid manager for Australia Post. Throughout the events which have led to this proceeding, Ms Watts has remained employed by Australia Post. She is, on the evidence, a competent and conscientious employee. In April 2008, Ms Watts suffered a psychological injury as a result of an incident concerning her non-selection for a leadership training program offered by Australia Post. This led to her lodging a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for compensation (Australia Post being regulated under the federal workers’ compensation scheme). She had some significant time away from the workplace. In October 2008, she returned under a return to work program, although her workers’ compensation claim remained unresolved. After her workers’ compensation claim was resolved by consent in the Administrative Appeals Tribunal in December 2009, and while she was still occupying a position in Australia Post’s workplace, as part of her return to work program, in February 2010 Australia Post moved to manage her return to her position as a bid manager under different arrangements. Australia Post had a policy described as a “Non-work related medical restrictions policy”. How and why Australia Post decided to change the management of Ms Watts’ working arrangements by reference to this policy is an important aspect of the facts in this case and is the subject of findings below at [210]-[225]. I shall refer to this policy of Australia Post as simply “the policy”.
3 Ms Watts was not cooperative with Australia Post’s decision to manage her under the policy, and did not agree with its imposition on her. Through its employees in its human resources area, Australia Post sought to have Ms Watts produce specific medical reports or advice about whether she was fit to return to her pre-injury role as a bid manager, and what medical restrictions or modifications might be required. It sought permission to speak to her treating doctor. It sought permission to speak to her treating psychologist. Ms Watts resisted these requests for various reasons, which I refer to in more detail later in these reasons for judgment. There was an effective impasse for several months, at least until mid-May 2010, but Ms Watts remained in the workplace under the arrangements in place since October 2008. In mid-May 2010, Australia Post directed Ms Watts to take sick leave and not attend for work on the basis that it was not satisfied she was fit to perform her role as a bid manager, and there were no modifications or restrictions it considered were reasonably available to allow her to do so. It would not, apparently, permit her to continue in the position she had been occupying as part of her return to work program.
4 Australia Post engaged in much correspondence, by letter and email, with Ms Watts about its need for further and more detailed medical information. Initially, some events outside Ms Watt’s control conspired to delay the provision of medical advice to Australia Post from Ms Selvi, Ms Watts’ treating psychologist. When it was provided, those responsible in Australia Post management found Ms Selvi’s advice unhelpful and unsatisfactory. Australia Post continued to pursue the matter, but not with any urgency. It did not seek to give Ms Watts any formal directions to attend for independent medical assessments, as it was clearly entitled to and could have done. It did not allow her to continue in the modified position she had been successfully performing until May 2010.
5 Delay, prevarication, lack of cooperation, stubborn adherence to process and some obstinacy on both sides all contributed to two years passing without Ms Watts returning to work. She used up her sick leave, her annual leave and from 4 August 2011 had to take leave without pay.
6 During this period, on 26 October 2010 Ms Watts lodged her first complaint under the DDA with the Australian Human Rights Commission. The principal allegation was that, after her treating psychologist gave Australia Post a report in June 2010, Ms Watts should have been able to return to work, and transition back into her position as a bid manager, because there were reasonable adjustments available for her to continue at work. That complaint was terminated on 28 September 2011, and on 21 November 2011 Ms Watts issued the first proceeding in this Court.
7 Eventually, on 13 October 2011 Australia Post gave Ms Watts a formal direction to attend for a psychiatric medical examination with an independent psychiatrist (Dr Hollander). This direction was given as a precursor to reliance on Australia Post’s disciplinary processes if Ms Watts refused to comply with the direction. Ms Watts eventually complied with the direction and attended to see Dr Hollander. Dr Hollander produced a report stating Ms Watts was fit to return to her pre-injury duties in her role as bid manager, and could perform the inherent requirements of that position. He advised a graduated return to work program over four months. Australia Post accepted these recommendations, as did Ms Watts, and they were implemented. Her return to work was successful and she is back performing the role of bid manager. Her supervisor, Mr Psarologos, gave positive evidence about the way she performs her role.
8 Why this could not have happened two years ago remains, on the evidence, something of a mystery. The most likely explanation seems to be too much intransigence on both sides.
9 Then, on 24 October 2012 Ms Watts lodged a second complaint with the Commission, dealing with Australia Post’s continuing refusal to allow her to return to work after she had been directed to take leave. The second complaint was terminated on 6 December 2012, and on 14 December 2012 Ms Watts issued the second proceeding in this Court.
10 For the reasons I set out below, I find that Australia Post contravened the DDA by engaging in unlawful discrimination on the ground of Ms Watts’ disability; namely, her disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour, within the meaning of s 4(1) of the DDA. The contraventions occurred between May 2010 and April 2011, on the basis of a failure by Australia Post to make reasonable adjustments for Ms Watts so she could remain at work. She was denied the ability to attend work, exercise her skills, be able to use her sick and recreation leave as she chose, all of which are benefits associated with her employment. She is entitled, with some qualifications, to compensation consisting of the re-crediting of her leave and other entitlements, with effect from June 2010 because that is consistent with her case at trial. She is not entitled to compensation for loss of income for the period after 21 April 2011, which includes the period she was on leave without pay, as I have found there was no unlawful discrimination by Australia Post during this time. She is also entitled to general damages, which I have fixed in the sum of $10,000.
JURISDICTION
11 It is not contentious that this Court has jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) to deal with the two proceedings, arising out of two complaints made to the Commission by Ms Watts.
RELEVANT ASPECTS OF THE DISABILITY DISCRIMINATION ACT
12 The DDA, like other anti-discrimination legislation (whether state or federal), represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.
13 The fact of this compromise was recognised in Waters v Public Transport Corporation (1991) 173 CLR 349 at 362-363 per Mason CJ and Gaudron J, at 409-410 per McHugh J. Legislative compromises of this nature may be reflected in statutory language which is deliberately opaque. Writing extra-judicially, then Chief Justice Spigelman observed:
The concept of attributing an intention to a legislature poses a number of problems. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court.
(Spigelman JJ, “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224 at 225-226.)
14 The statutory language of the DDA is an example. The facts of this case, and the parties’ respective arguments, call for the resolution by interpretation of several aspects of that opaqueness. In doing so, the Court should remain faithful to the text, context and purpose of the legislative scheme, although application of this guidance in a scheme which is inherently a compromise requires reconciliations on which reasonable minds might differ. There are constructional choices to be made. The Court must make them trying as best it can to remain close to the language Parliament chose to use, in the context it chose to use it, and applying the legislative purpose, objectively ascertained.
15 The applicant’s claims concern amendments to the DDA made by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), which introduced s 5(2) of the DDA, incorporating a new characterisation of what “discrimination” means for the purposes of the DDA.
16 The explanatory material stated that the amendments were designed to implement the recommendations of the Productivity Commission, themselves in part a consequence of the High Court’s decision in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62. The Commission’s recommendations are found in its Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004) where it observed (at Overview, pp XL-XLI):
A reasonable adjustment duty
Until recently, it had been presumed that the DDA obliged affected organisations to make ‘reasonable adjustments’ to accommodate the needs of people with disabilities. Although the term ‘reasonable adjustment’ does not appear in the DDA, various features of the Act seemed to imply such an obligation. However, a recent High Court decision questioned this presumption and appears to have narrowed significantly the protection that the Act was previously thought to provide.
The Commission considers that substantive equality is a sound basis for disability discrimination legislation. It therefore endorses the concept of reasonable adjustment as a means to this end, and recommends that it be included explicitly in the Act as a stand alone duty. This would mean that failure to provide reasonable adjustment could itself be unlawful discrimination and the subject of a complaint.
The Commission makes this recommendation provided that the duty is always subject to the unjustifiable hardship defence. ‘Reasonable adjustment’ should be defined to exclude adjustments that would cause unjustifiable hardship. This safeguard is necessary to ensure that adjustments are likely to produce net benefits for the community, and do not impose undue financial hardships on the organisations required to make them.
Even in the absence of an explicit reasonable adjustment duty, there are strong grounds for ensuring that the unjustifiable hardship defence applies to all areas of the Act, including: education after enrolment; employment between hiring and firing; and administration of Commonwealth laws and programs. Some people are opposed to the Australian Government having recourse to this defence, presuming that it has greater resources at its disposal. But any government expenditure has an opportunity cost, and to devote resources to making adjustments that do not have net community benefits is just as wasteful as it is in any other area covered by the DDA.
The DDA should also require that unjustifiable hardship be included in all disability standards introduced under the Act, including current draft standards.
Who pays?
Any obligation to make adjustments raises the vexed question of who should pay for those adjustments: the organisations concerned, or the community more broadly. There are good arguments for both to be involved (box 5). In some cases, the costs can be spread across different groups. For example, the costs of accessible public transport might be met partly by transport providers (through lower earnings), their customers (through higher fares) and by taxpayers (through subsidies). But in other cases organisations might not be able to pass on the costs.
Two approaches could be adopted to help broaden the obligation to fund adjustments. The Commission is recommending that:
• the unjustifiable hardship test also require that consideration be given to efforts taken by the organisation to access financial and other assistance. This would mean that the organisation could not use ignorance of existing programs as a defence.
• the Australian Government review existing arrangements for funding adjustments and consider portable access grants to support participation in employment and education.
17 Section 5(2) of the DDA deals with the subject matter of the Commission’s recommendations. It provides:
(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.
18 The definition of “reasonable adjustment” is critical to the disposition of the issues in this proceeding. The explanatory material (see Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] (2008 Explanatory Memorandum)) acknowledges the concept of “reasonable adjustments” is drawn from the Convention on the Rights of Persons with Disabilities, although the term in the Convention is “reasonable accommodation”. Article 2 of the Convention defines reasonable accommodation in the following terms:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
19 Australia became a party to the Convention on 17 July 2008. It acceded to the Optional Protocol to the Convention on 21 August 2009, which became effective in Australia on that date. Article 5(3) of the Convention provides as follows:
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
20 Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia’s international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 at [97] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [247] per Kiefel J; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 at [59].
21 This approach is important when the breadth of the statutory definition of “reasonable adjustment” is considered. Section 4 of the DDA defines “reasonable adjustment” in the following terms:
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
22 Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
23 To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.
24 Similarly, the range of disabilities covered by the DDA, evident from the definition of “disability” in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that “disability” manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.
25 There is one relevant qualification to the breadth of what can constitute an “adjustment” for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.
26 It will be noticed that the definition of “reasonable adjustment” in s 4 uses the singular, and s5(2) uses the plural. For the purposes of the operation of s 23 of the Acts Interpretation Act 1901 (Cth), in my opinion the DDA exhibits a contrary intention. The use of the plural in the provision which imposes an enforceable obligation conveys an intention to capture the variety of circumstances, and the variety of disabilities, which may need to be accommodated. More than one adjustment may be necessary. More than one option may be available. The use of the plural is consistent with the imposition of an obligation that may require several steps, alternatives, processes or modifications for one person. The use of the plural allows for that possibility.
27 The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.
28 A further construction issue posed by s 5(2)(a), relevant to the current proceeding, is how the phrase “does not make, or proposes not to make” should be construed. The first part of the phrase is clear enough: it concerns the factual situation at the time a Court assesses whether s 5(2) has been contravened. It directs attention to whether, as a matter of fact at that time, reasonable adjustments have been made. The second part directs attention to a (negative) position of the alleged discriminator, and also involves some speculation about the future. One construction question is whether the second part of the phrase is to be determined only by reference to the subjective intentions of the discriminator. Ordinarily, motive (that is, the reason a person has herself or himself for achieving an object, or seeking to achieve an object) is not relevant in determining why a person acted as she or he did for the purposes of establishing discrimination: see Purvis 217 CLR 92; [2003] HCA 62 at [148]-[166] per McHugh and Kirby JJ.
29 In Nagarajan v London Regional Transport [2000] 1 AC 501 at 511, Lord Nicholls of Birkenhead said:
For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign.
30 In my opinion, two points should be made about the construction of the phrase “proposes not to make” in s 5(2)(a). First, it is not directed to intention or motive. It requires an objective judgement about the position taken by the alleged discriminator. It should not be regarded as intending an assessment of the discriminator’s subjective and ongoing state of mind. Consistently with the approach in Purvis 217 CLR 92; [2003] HCA 62, the statute requires a determination, as a matter of fact at the point in time when the discriminator’s conduct is challenged, of what the discriminator’s position in fact is.
31 Second, it is intended to identify a different factual situation from the phrase “does not make”. The latter looks to what has or has not been done by the time of complaint, in circumstances where the complainant says something should have been done. If, in a given factual situation, the time for making reasonable adjustments has not yet been reached (for example, because the disabled worker has not started a job, has not returned to work, or there is an anticipatory refusal by the discriminator) then that is one circumstance in which the second part of the provision has work to do. It will also have work to do when there is continuing discrimination at the time a claim comes to be determined: in that situation both limbs may be engaged on the facts.
32 Further, s 5(2) as a whole must be construed in a way that allows it to operate in a practical way in the workplace, and in the educational and other settings with which the Act deals. Adjustments may be simple, but also complex. Not only complex because of technical or technological requirements, but also perhaps because of personnel and workplace requirements. Time may be needed to implement them. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but the implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator “proposes not to make” reasonable adjustments. The period of time during which it might be said, in a given factual situation, that a discriminator has acknowledged her or his legal obligation and is pursuing implementation cannot be fixed in advance. Invariably it will be fact dependent. Delay may, after a period, indicate lack of genuine recognition of the legal obligation and make available the inference that the discriminator’s position is that it “proposes not to make” the adjustment. On the other hand, delay may be accounted for by the unavailability, for example, of an adjustment where the adjustment is a practical, technological adjustment.
33 In other words, subject to circumstances of continuing discrimination, the two parts of the phrase are intended to be able to address different factual situations. That is particularly apparent from the use of the conjunction “or” in s 5(2)(a), rather than “and”. Each can and should be given different work to do in the statute: Commonwealth v Baume (1905) 2 CLR 405 at 414.
34 The tense used in paragraph (a) of s 5(2) (extracted at [17] above) is in my opinion significant. Paragraph (a) is expressed in the present tense. It is suggestive of an ongoing or continuing obligation imposed by the statute on the discriminator. That is consistent with the subject matter of the provision which concerns (for example) the ability of disabled people to perform work, attend educational institutions, be provided with goods and services, and have access to accommodation on an ongoing basis.
35 The effect of the 2009 amendments on the two statutory exceptions to unlawful discrimination, described as “unjustifiable hardship” and “inherent requirements”, is also important for the resolution of the issues in this proceeding.
36 Prior to the 2009 amendments, s 4(1) required “unjustifiable hardship” to be read by reference to s 11 of the DDA. Section 11 set out a series of mandatory considerations to be taken into account in determining what constituted unjustifiable hardship. The term was then picked up in the provisions dealing with prohibitions on discrimination in particular spheres, creating (where it was picked up) an exception to the prohibition. For example, s 15(4) of the DDA formerly provided:
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.
37 At that time, s 15(1)(b) dealt with the terms on which persons were offered employment and s 15(2)(c) dealt with dismissal. Those were the only circumstances in which the inherent requirements and unjustifiable hardship exceptions operated.
38 It can be seen from the former version of s 15 that the exception of “inherent requirements” was neither separately defined nor provided for. Instead, it was left undefined and a body of authority grew up around its content: see, eg, X v Commonwealth (1999) 200 CLR 177; [1999] HCA 63; Cosma v Qantas Airways Ltd (2002) 124 FCR 504; [2002] FCAFC 425.
39 The 2009 amendments not only introduced the concept of reasonable adjustments, but altered the way in which the exceptions for unjustifiable hardship and inherent requirements were to operate. Aside from the introduction of s 5(2), this was achieved in relation to discrimination in the area of work by repealing those parts of provisions such as s 15 which had dealt with these exceptions, and introducing freestanding provisions to deal with inherent requirements (s 21A) and unjustifiable hardship (s 21B). For other spheres of activity (see, for example, Div 2 of Part 2 of the DDA, which includes education and access to premises), a new provision creating an exception of unjustifiable hardship was introduced: see s 29A.
40 Section 21B provides:
21B Exception-unjustifiable hardship
This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
41 Section 21B was not relied on by Australia Post in this proceeding and therefore is not directly in issue. However, its place and operation in the scheme assists in the construction, for example, of s 21A, which is in issue. The text of s 21B speaks of “avoiding the discrimination”, thus picking up discrimination as defined by both ss 5(1) and 5(2). For the purpose of s 5(2), “avoiding the discrimination” should be understood to mean making, or proposing to make, reasonable adjustments for a person with a disability.
42 The Productivity Commission dealt with the extension of the unjustifiable hardship defence (at 210-211):
The Productivity Commission considers that there are good reasons to extend the unjustifiable hardship test to all areas of the DDA. As a duty to make adjustments might be implied from existing provisions, an across the board unjustifiable hardship defence is required as the Act stands now to provide the necessary balance. It would seem that the Australian Government intended it to apply it universally in the first place. According to HREOC:
The second reading speech introducing the Disability Discrimination Bill indicated an intention to apply the concept of unjustifiable hardship as a general limitation on the legislation, although the drafting of substantive provisions did not fully reflect this. (sub. 143, p. 28)
If the Commission's proposal for a duty to make reasonable adjustments were adopted, an accompanying unjustifiable hardship defence would become even more important as an across the board safeguard to balance rights and obligations.
43 The Productivity Commission also recommended the extension of the exception of inherent requirements, from its 2009 operation in respect of hiring and dismissal, to all employment situations. The Report stated (at p 221):
The Commission concludes that the inherent requirements provisions in the DDA are important from the perspectives of employers and employees (and prospective employees). From the employers’ perspective, inherent requirements provide an important safeguard that underpins the merit principle in employment decisions. For employees, inherent requirements mean that employers cannot discriminate against them by using failure to meet non-essential requirements as a reason. Guidelines would help employers and employees to identify the inherent requirements for particular jobs.
There is, however, one legislative amendment that should be made to address an apparent anomaly in the way inherent requirements apply to some employment situations and not others. Currently, like the unjustifiable hardship defence, the inherent requirements defence is not available between the hiring and dismissal stages of employment. It does not apply, for example, in relation to promotions. No good explanation has arisen for why this is so, nor to the Commission’s knowledge is it a major issue with employers. The current lack of this defence would appear to have the unusual result, for example, that failure to meet the inherent requirements of a more senior position could not be used by an employer to refuse to promote a person. Although not a seemingly urgent issue, this matter should be addressed.
44 Section 21A provides:
Exception-inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person's past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator-the aggrieved person's performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).
45 By the use of the conditional tense, the statute contemplates that the task required by s 21A(1)(b) can be carried out hypothetically. The provision also uses the term “particular work” in identifying the position to which the concept of inherent requirements attaches. The applicant submitted that this term was to be construed in light of whatever specific section of Div 1 of Part 2 was relied upon by a given applicant to establish that particular discriminatory conduct is unlawful. In my opinion the phrase is used in a more precise way than that. Although the word “work” is chosen so that it is capable of covering all the situations with which Div 1 deals, the use of the adjective “particular” suggests Parliament intended a further level of precision to be applied to identifying the “work” said to carry inherent requirements. In my opinion, s 21A requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform, in the workplace. For example, in s 18(3), which deals with partnerships, the relevant prohibition at paragraph (b) (not excluded by s 21A(4)) relates to expulsion from the partnership. In order to assess the application of s 21A(1), it will be necessary to identify what “particular work” the disabled partner was performing, was asked to perform, or sought to perform. For example, was it to manage the human resources area of a partnership, or marketing, or client relations? That is the “particular work” whose inherent requirements must be identified.
46 The 2008 Explanatory Memorandum states at [72] that the newly introduced s 21A
substantially implements Productivity Commission Recommendation 8.4 to extend the defence of ‘inherent requirements’ so that it is available to employers in all employment situations.
47 It goes on to state (at [74]-[78]):
74. New section 21A extends the defence to all areas of discrimination in employment, except in:
- denying a person with disability access to opportunities for promotion, transfer or training
- denying a person with disability access to any other benefits associated with employment, and
- subjecting the person with disability to any other detriment.
75. The purpose of the first exclusion is to ensure people with disability retain an entitlement to have the opportunity to seek a promotion or transfer on an equal basis with others. Thus an employer could not, by denying access to the opportunity for promotion or transfer, deny an employee with disability the opportunity to demonstrate that he or she can in fact carry out the inherent requirements of the job sought.
76. The second and third areas exclusions relate to instances of discrimination by an employer against a person who is already employed. In those instances, as the employee is already carrying out the inherent requirements of the job, the defence of inherent requirements would bear no meaning. That is, if the employee is carrying out the inherent requirements of the job, but is then denied access to a benefit or is subjected to a detriment by his or her employer (other than dismissal or a change in terms or conditions), it cannot be a defence to claim that the reason for the discrimination was that the employee was unable to carry out the inherent requirements of the job.
77. However, if an existing employee became unable to meet the inherent requirements of the job, the defence of inherent requirements would remain available to the employer should he or she decide to dismiss the employee or to change the terms and conditions of the employment on that basis.
78. An employer who denies an employee access to any other employment benefit or subjects an employee to any other detriment would continue to have available the defence that avoidance of the discrimination would cause unjustifiable hardship (see the general defence of unjustifiable hardship inserted by Item 60 (new section 29A)).
48 The way these statements might be used to construe s 21A, and s 21A(4) in particular, was the subject of considerable argument in this proceeding. In particular, there was argument about the assumptions made in paragraph [76] of the Explanatory Memorandum concerning the circumstances in which the exclusion (in s 21A(4)) would be operating, when applied for example to provisions such as ss 15(2)(b) and 15(2)(d) of the DDA. The assumption is that an employee would be “carrying out the inherent requirements of the job” in all circumstances to which those provisions might apply.
49 The assumption in the extrinsic material is not borne out by the text of s 21A(4), read with a provision such as s 15(2) upon which it is intended to operate. Notwithstanding those passages in the Productivity Commission report about the desirability of extending the inherent requirements exception to the period between hiring and dismissal, it can be seen that the text of s 21A(4) precludes its extension other than to discrimination in the determination of who should be offered promotion or transfer, without any qualification that the employee must, at the time of discrimination, be performing the inherent requirements of her position. I return to the issue at [51] below in dealing with Australia Post’s submission on the operation of s 21A, because Ms Watts’ circumstances are an example of how an employee may not necessarily, at the time of the discrimination, be performing the inherent requirements of her position. Were it otherwise, the anti-discrimination provisions might substantially fail to achieve their objective. This is an example of where the words or asserted intention in extrinsic material should not be substituted for the text of the statute: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ, at 532 per Deane J, at 547 per Gaudron J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
50 The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the “discriminator” (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the “discriminator” (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.
51 The respondent submits the reason for the more limited application of s 21A, as compared to s 21B, is that given in the Explanatory Memorandum: namely, that incumbent workers with disabilities are assumed to be performing the inherent requirements of their job, and so s 21A could never have any application to denial of benefits associated with employment, or the imposition of a detriment. It draws a comparison with s 15(2)(a) (where the s 21A exception is available), contending that an employer can change the terms and conditions it affords a disabled employee if that person is, because of the disability, no longer capable of performing the inherent requirements of the position.
52 One problem with this construction is it does not recognise that, as they are expressed, provisions such as s 15(2)(a) are also capable of applying to incumbent workers who are performing the inherent requirements of a position.
53 Second, there is no such clear distinction between the circumstances in which s 21A applies and those where it does not. For example the reference in s 21A(1)(a) to “promotion or transfer to particular work”, despite discrimination in respect of opportunities for promotion or transfer being at least partially excluded from the operation of s 21A by s 21A(4), does not reveal any clear intention to confine s 21A(4) to workers who are already carrying out the inherent requirements of a position. There is simply no textual support for that construction. Rather, it is aimed at preserving an employer’s entitlement to secure a core set of capabilities and performance from employees. An employee temporarily out of the workforce, or on modified duties, may nevertheless be able to perform to such a standard.
54 The consequences of reconciling the operation of s 21A with the terms of s 5(2) and the statutory concept of reasonable adjustments emerge from the breadth of s 5(2), when it is read with the definition of reasonable adjustments in s 4. Section 21A(1)(b), when read with this definition, must be construed as meaning that, if the employer makes (or were to make) all adjustments for the person that do not cause the employer unjustifiable hardship, and the disabled person cannot perform the inherent requirements of the particular work, only then does the s 21A exception apply. That construction imposes substantial obligations on employers, and may as I have observed give the concept of “unjustifiable hardship” more work to do in the legislative scheme than previously conceived. Nevertheless, the text of s 5(2) is clear, especially read with the definition of “reasonable adjustment”, and this construction is consistent with Australia’s obligations under the Convention.
55 There is a further construction question about the temporal operation of the definition of “reasonable adjustment” in the context of s 21A(1)(b), assuming it applies. Where s 21A posits that a person would be “unable” to carry out the inherent requirements of the particular work, even with reasonable adjustments, does the statute allow for the adjustments to enable the person within a reasonable time to perform the inherent requirements of the particular work, or does s 21A operate to except an employer from liability unless the adjustments immediately enable the person to perform the inherent requirements of the particular work?
56 Take an example divorced from the present proceeding. An existing employee of a multinational computer software company whose “particular work” requires constant use of a computer has a skiing accident which means she loses the use of her arms and hands. Technology is available through which she could learn to operate a computer with the use of a laser beam attached to her head. However, to have her trained in this, and able to use it effectively (including developing the necessary coordination), will take at least 6 months. It should be assumed for the purposes of the example that the use of the laser beam is a reasonable adjustment for the employee within the meaning of s 4 because the employer does not suggest it imposes unjustifiable hardship on the employer. Thus, it will be 6 months before she will be in a position to perform the inherent requirements of her pre-injury duties. Does s 21A(1) operate to except the woman’s employer from a claim of unlawful discrimination if it dismisses her because she cannot perform the inherent requirements of her position immediately on her return to work?
57 The protections intended to be delivered by the 2009 amendments to require accommodation for disabled people by way of reasonable adjustments would seem to be almost entirely undermined by a construction of s 21A(1)(b) which does not allow some time for the adjustment to take effect. This is consistent with the objective of substantive equality s 5(2) is intended to pursue. The expression of s 21A(1)(b) in the conditional tense supports a construction of “unable” which allows some time for the adjustment to take effect. That is not to say that any outer temporal limit (of a number of weeks or months or years) is implied into s 21A(1)(b), nor that a gloss such as “within a reasonable time” is to be implied. Nor is there a need to limit the meaning of “unable”. Rather, it is to recognise that, read in context, the prohibitions contained in Div 1 of Part 2 of the DDA are intended to facilitate, in a variety of circumstances, disabled people performing, or continuing to perform, work for which they are qualified and of which they are capable, whether by training, experience or both. In this sense, allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the “reasonable adjustments” made, subject in any given case to the unjustifiable hardship exception.
58 Several construction issues about s 15 are also raised by Ms Watts’ claims. Section 15 provides:
Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
59 Section 15(2) is the applicable provision in this proceeding. The parties made competing submissions about the construction and scope of the matters dealt with in paragraphs (a)-(d) of subs (2). Subsection (2) takes as its premise an existing employer–employee relationship and deals with the treatment of employees in that context. That premise means there will be terms and conditions already attaching to the employment contract before any impugned conduct or treatment arises. The use of the verb “affords” in paragraph (a), expressed in the present tense, indicates that the conduct said to constitute discrimination could relate either to those existing terms and conditions, or to any changes proposed or made to them by the employer. That construction ensures there is no gap between the protection given by subs (1) to prospective employees and that given to existing employees. The use of the word “in” at the start of this paragraph is important: it indicates that paragraph (a) is directed to terms and conditions of employment (whether existing, proposed or changed) that are in and of themselves discriminatory. I agree with the submission of the applicant that paragraph (a) does not deal with the application of a term or condition to a given factual situation between an employer and an employee. Rather it looks to the nature and operation of the term and condition itself.
60 Bearing in mind that each paragraph should be given real and separate work to do (Baume 2 CLR 405 at 414; Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; [2012] HCA 46 at [41] per French CJ, at [172] per Hayne J, at [450] per Kiefel J), when s 15(2)(b) speaks of “promotion, transfer or training”, it is dealing with matters outside the terms and conditions of employment. In my opinion, they are three specifically identified “benefits associated with employment”. They are not all benefits which necessarily have a pecuniary impact on an employee’s income. They are not necessarily benefits which are permanent. They are all matters which enhance and develop a person’s capacity and opportunity in her work. The use of the word “opportunities” in paragraph (b) indicates that these “benefits” are not to be seen wholly from the perspective of the employer (that is, benefits which increase a person’s value as an employee) nor are they to be seen wholly from the perspective of the employee (that is, benefits which bring personal achievement and satisfaction to the employee). Rather, they encompass both perspectives. Further, the use of the word “opportunities” distinguishes the breadth of this provision from the specific exception in s 21A(1)(a), which concerns selection for promotion or transfer.
61 There is a question as to how the phrase “other benefits associated with employment” in s 15(2)(b) should be construed, given that three specific benefits have been identified by Parliament. In an earlier time, the construction of a provision like s 15(2)(b) may have been immediately approached through the use of the ejusdem generis rule. I agree respectfully with the observations of Spigelman CJ in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 at [124]-[127], that what is called the ejusdem generis rule is but one example of a process of interpretation sometimes described as “reading down” the ambit of a term or phrase in a statute, and that the question of whether a phrase should be read down and, if so, how, is not to be approached by any mechanical application of a “rule” such as ejusdem generis.
62 Contemporary approaches to statutory construction may have reduced the role of these rules: cf Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [54] per Gummow and Hayne JJ. In any event, these rules are but methods by which apparent tensions, contradictions, or ambiguities in statutory language and purpose can be reconciled. The need to engage in such reconciliation as part of statutory interpretation has been emphasised as a core part of contemporary approaches to statutory construction (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]), but the language of reconciliation has been employed by courts for a long time to describe the process of interpretation: see R v Inhabitants of Whitnash (1827) 7 B & C 596 at 599; 108 ER 845 at 846 per Bayley J.
63 Similarly, contemporary approaches to statutory construction may reduce resort to descriptions such as “reading down”. Often “reading down” is no more than a convenient way to express a view that text, context and purpose suggest a word or phrase in a statute has particular limits around its construction. It is not that there is a broad meaning, which is then “read down”. The interpretation of statutory language does not involve arriving at a preliminary or likely construction, and then revising or revisiting that construction to fit with Parliament’s purpose, or the context of the provision and the statute. The choice as to construction is a single choice, arrived at by a variety of legitimate approaches. A circumstance where a construction is chosen which one might describe as a “reading down” is in reality the construction that the court has decided is the one the text, context and purpose of the statute, and its parts and provisions, requires. In that sense, there is no “reading down”: there is simply a conclusion as to construction.
64 That is, in my opinion, part of what Mahoney JA was identifying in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373-376. His Honour’s emphasis on text and context in preference to “rules” was prescient of the approach endorsed repeatedly by the High Court in the last decade: Project Blue Sky 194 CLR 355; [1998] HCA 28 at [69]-[71]; Alcan 239 CLR 27; [2009] HCA 41 at [47]; Lacey 242 CLR 573; [2011] HCA 10 at [43]-[44]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24]-[25]. His Honour observed (at 376) that the application of a “rule” such as ejusdem generis to conclude that a statutory phrase using general words should be given a limited or restricted construction is “not because, e.g. a genus has been found, but only because the legislative intention has already been seen to be that the general words are to be so restricted”.
65 In the context of s 15(2) of the DDA, whose function is to express prohibitions on certain conduct, with the purpose of protecting employees with a disability from discrimination during the course of their employment, in my opinion the identification of “promotion, transfer or training” is intended to do no more than provide specific examples of “benefits associated with employment” and is not intended to restrict or limit what might otherwise fall within the concept of “benefits associated with employment”. The language and context suggest, as I have observed above, a broad range of matters which could be “benefits”, including matters that employees may regard as benefits (such as new challenges or greater interaction with fellow employees) and those that employers might regard as benefits (such as temporary promotions to fill a gap) and those that both employers and employees might regard as benefits (such as training).
66 Accordingly, there is no reason to exclude from the concept of “benefits associated with employment” matters such as those identified by the applicant in this case: attending for work, performing work and exercising skills, using accrued entitlements at a time and for a purpose of the employee’s choosing (as would usually be the case with entitlements, within reasonable limits) and earning ordinary income. A similar approach in a different statutory context was taken in Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [110] per Bromberg J. In another context, see also Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [80] where Callinan and Heydon JJ stated:
It may be that in modern times, a desire for what has been called “job satisfaction”, and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.
67 The construction of s 15(2)(c) was not in issue in this proceeding, but the construction of paragraph (d) is important. The use of the word “detriment” within the same subsection as the word “benefit” indicates those terms should be taken as encompassing different kinds of conduct or treatment. The use of the word “other” in paragraph (d) makes clear that the three matters with which paragraphs (a)-(c) deal are regarded by Parliament in their effect on employees as forms of detriments. The purpose of (d) is to pick up matters not otherwise covered already in that subsection. In that sense, it is surplusage to construe paragraph (d) as a negative mirror of paragraph (b): the better approach is to see each paragraph as directed at different kinds of conduct or treatment.
68 Aside from a nexus between the identified “detriment” and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a “detriment” within paragraph (d) will have an immediate negative connotation: a “benefit” within paragraph (b) will have an immediate positive connotation. A “detriment” should not be identified solely by the negative expression of what is in reality a benefit.
69 Before applying these provisions to the facts, it is appropriate to now turn to Ms Watts’ claims, and Australia Post’s responses to them.
MS WATTS’ CLAIMS
Ms Watts’ disability
70 It is common ground that, at all relevant times, Ms Watts suffered from a “disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour”, within the meaning of s 4(1) of the DDA. The evidence showed there had been several diagnoses made of Ms Watts since October 2008. The different diagnoses were the subject of evidence from Ms Selvi and Dr Hollander. The former diagnosed Ms Watts as suffering from generalised anxiety disorder, acute stress disorder and insomnia, and Australia Post appeared on the evidence prepared to act on this diagnosis throughout the period Ms Watts complains about. After he saw Ms Watts, Dr Hollander’s opinion was that she suffered from adjustment disorder with mixed anxiety and depressed mood, and that by April 2012 her symptoms were in partial remission.
71 The applicant’s contention is that it is sufficient for the application of the provisions of the DDA for the Court to be satisfied that Ms Watts suffered at all relevant times from a psychological condition, which is a disability for the purposes of the DDA. Australia Post did not contend that the precise diagnosis of Ms Watts’ psychological condition affected the adjustments required or the resolution of the issues in this proceeding. It is sufficient to proceed on the basis that Ms Watts’ psychological condition involved elements of anxiety and emotional distress.
Ms Watt’s three contentions
72 The applicant has consistently characterised her case as having three contentions. They are put in the alternative to each other.
First contention
73 The applicant contends s 5(2) imposes a positive obligation on an employer to make reasonable adjustments for an employee. She submits that, between June 2010 and October 2011, Australia Post failed to discharge that obligation because in substance it relied on, and waited for, Ms Watts to provide evidence satisfactory to Australia Post of what she could or could not do, and until the evidence was satisfactory from Australia Post’s point of view, it did nothing proactive or positive in terms of making adjustments. It is inherent in this aspect of the claim being limited to a period up to October 2011 that the applicant accepts Australia Post did take some positive steps when, in mid-October 2011, it formally directed Ms Watts to attend for a medical appointment with Dr Hollander, and made arrangements for that appointment, so that Dr Hollander could assess whether she was fit to return to her role as a bid manager, and how that might be achieved.
74 The applicant submitted:
An employer cannot discharge its obligation under section 5(2) by shifting responsibility for determining whether reasonable adjustments can be made to the employee. Further, that the employee cannot identify a reasonable adjustment, or that an adjustment identified is not reasonable, does not alter the positive obligation on the employer to make reasonable adjustments. An employer is obliged to undertake its own enquiries and to make its own assessment as to whether reasonable adjustments can be made. An employer is not entitled to place responsibility for identifying reasonable adjustments on the worker.
75 Notwithstanding this submission, the applicant identified at least two reasonable adjustments which could have been made. First, to implement a return to work program. Second, to provide restricted duties in accordance with the terms of Australia Post’s non-work related medical restrictions policy.
76 Between June 2010 to October 2011, all Australia Post did, according to the applicant, was rigidly adhere to the terms of the policy, and attempt to force the applicant to provide information to the employer about how and when she could return to her role as bid manager. That is, Australia Post’s entire focus was on insisting Ms Watts comply with the policy. Although the applicant conceded that, during this period, Australia Post did take some steps (such as in November 2010 making an appointment for Ms Watts with Dr Hollander on 4 February 2011, and conducting what Australia Post described as an internal “reasonable adjustments assessment” in March 2011), the applicant submitted Australia Post “simply let the matter drift”, placing primary responsibility on Ms Watts herself to identify whether reasonable adjustments could be made and what they were.
Second contention
77 This aspect is based on a less robust construction of an employer’s obligation in s 5(2). Ms Watts contends that, in each of June 2010 and February 2011, Ms Watts identified reasonable adjustments which could be made by Australia Post to allow her to return to work, and to return to her role as a bid manager. Australia Post, it is contended, failed to make the reasonable adjustments identified.
78 On approximately 22 June 2010, Ms Watts provided Australia Post with a report from Ms Selvi, her treating psychologist. The report was quite general, but the applicant submitted it was sufficiently clear in its terms to indicate to Australia Post how Ms Watts’ return to work could be managed, and she submitted it indicated she could be back in her full role as bid manager after two to three months of working under some restrictions.
79 Then, Australia Post having asked for further clarification from Ms Selvi, in February 2011 Ms Selvi provided a second report. It was delayed because of injuries suffered by Ms Selvi in a car accident, and Ms Watts’ insistence that no-one but Ms Selvi could provide such a report to Australia Post. Australia Post at this stage did not seek to compel Ms Watts to see another medical practitioner. Ms Selvi’s second report contained more information, but still not enough to satisfy Australia Post. Australia Post’s “reasonable adjustments assessment” undertaken by employees at Australia Post in March 2011, after receipt of Ms Selvi’s second report, concluded that the adjustments recommended by Ms Selvi could not be accommodated. Ms Watts submits that, in respect of both Ms Selvi’s reports, their non-implementation by Australia Post constituted a failure to make reasonable adjustments for the purposes of s 5(2) of the DDA.
Third contention
80 The third aspect of the applicant’s case is a confined contention, essentially about the delay she alleges occurred in Australia Post implementing the recommendations of its own independent medical specialist, Dr Hollander. This aspect covers the period between 23 April 2012 (the date of Dr Hollander’s report) and 30 July 2012, when Ms Watts returned to work for Australia Post. The applicant accepts that, by allowing Ms Watts to return to work in accordance with the recommendations made by Dr Hollander, Australia Post discharged its obligation under the DDA to make reasonable adjustments for her disability in her employment with Australia Post. However, she contends the three-month time gap between when Australia Post was informed of the reasonable adjustments which should be made, and when Australia Post made them (by allowing Ms Watts to return to working in accordance with Dr Hollander’s recommendations) should be characterised as a failure to make reasonable adjustments for the purposes of s 5(2) of the DDA.
Less favourable treatment
81 Whichever of the three contentions is considered, Ms Watts submits the treatment she experienced was less favourable than another employee of Australia Post in similar circumstances. The applicant put forward two comparators. First, an employee of Australia Post in a role such as bid manager, without a disability, who has been away from work for some time but is ready, willing and able to work. Second, an employee of Australia Post in a role such as bid manager, with a different disability, who is off work because of that disability, but is ready, willing and able to return to work with reasonable adjustments.
82 As to the first comparator, the applicant submits Australia Post would have allowed such an employee back to work.
83 As to the second comparator, the applicant submits the policy would have been applied to another employee differently, by allowing that employee to return to work on restricted duties until the employee could return to their full and usual role.
84 In neither case, the applicant submits, did Australia Post treat Ms Watts in these ways. Instead it directed her to remain away from work.
85 The only reason for Australia Post’s direction that Ms Watts remain away from work was, she submits, her disability (namely her psychological condition).
Contravention of section 15(2)
86 The discrimination identified by the applicant was contended to be unlawful because it was prohibited by either or both of s 15(2)(b) and s 15(2)(d) of the DDA.
87 The applicant’s case was that Australia Post had contravened s 15(2) of the DDA, by failing to make reasonable adjustments for her disability in the way it required her to return to her position as bid manager. Given how both parties’ arguments developed by the time of final submissions, it is necessary to rehearse the way the parties’ arguments about the contravention of s 15(2) were put. The applicant’s case was put in her written outline of submissions before trial by reference to ss 15(2)(b) and (d). This reflected the way the matter was pleaded in the amended statement of claim filed on 18 February 2013. The respondent’s outline of submissions before trial did not cavil with those references. In opening at trial, the applicant’s counsel also relied on ss 15(2)(b) and (d). In her opening, the respondent’s counsel did not dispute that the respondent’s actions in preventing Ms Watts from attending work, earning income and exercising her skills could be characterised as a detriment, although she submitted Australia Post did not accept that there was a benefit to be derived from attending for work, in and of itself. Instead, the respondent relied upon the inherent requirements exception in s 21A, in particular, that the adjustments identified by Ms Watts as “reasonable adjustments”, even if they could properly be identified and implemented, would not have enabled Ms Watts to perform the inherent requirements of the bid manager role. For present purposes it is important that neither in its defence nor in submissions before trial, nor in opening the respondent’s case at trial, was it suggested by Australia Post that Ms Watts claims were to be assessed other than by reference to ss 15(2)(b) and (d).
88 It is fair to say that before trial, during opening and during the trial, the focus of both parties in terms of the relevant and critical aspects of the legislative scheme was on the construction and application of s 5(2), and parts of s 21A. By the time final written submissions were filed, it was clear both parties, and especially the respondent, had realised the importance of s 21A(4) and the fact that it excluded from the terms of the exception created by s 21A any discrimination referred to in ss 15(2)(b) and (d). In other words, on the applicant’s case as it was pleaded and argued, s 21A could not assist the respondent.
89 This led the respondent, in final submissions, to submit that Australia Post’s conduct should be characterised as, if anything, a contravention of s 15(2)(a). This then would make the exception in s 21A available to Australia Post. The applicant objected to the respondent’s introduction of s 15(2)(a) at the stage of final submissions. She submitted there was prejudice to the applicant in the Court accepting the respondent’s invitation to find that, if there was a contravention of s 15(2) by Australia Post, it was a contravention of s 15(2)(a). The prejudice was fourfold. First, the applicant had made no submission to the Court on relevant authorities dealing with the construction of the phrase “terms or conditions of employment”. The applicant submitted that construction of the same phrase, as it appears in other legislative schemes, may assist the Court in interpreting s 15(2)(a) of the DDA. Second, the applicant submitted she did not have the opportunity to call evidence with respect to the terms and conditions of her employment, including evidence about any oral terms of her employment contract, nor about whether any of the many workplace policies of Australia Post, or any relevant enterprise agreement that may have been in existence, were incorporated into her contract of employment. Third, the applicant objected to the respondent’s reliance on the new argument on the basis that the respondent had not properly identified the relevant terms or conditions of employment it said brought the respondent’s conduct within s 15(2)(a). If the respondent was allowed to proceed with this argument, the applicant submitted, it must be required to clearly articulate the relevant terms or conditions, so that the applicant could properly meet the arguments put against her. Finally, the applicant submitted that the respondent had conceded in its opening that the particular conduct in question, preventing the applicant from attending work, earning income and exercising her skill, constituted a detriment. She says now that the respondent should not be able to, after that concession, put its case differently in final submissions.
90 I accept those submissions. A party should be held to the case it has pleaded and run throughout a trial, unless all parties agree, or the interests of the administration of justice require otherwise: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J; Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 at [305] per Keane CJ, Lander and Besanko JJ. This has been a proceeding conducted over two years, no doubt at considerable cost to both parties, who have each been legally represented on both sides. The case as substantively pleaded by the applicant is the case she put to the Court for determination, and the case the respondent sought to meet. There was little or no evidence about the contractual and employment arrangements between Ms Watts and Australia Post so as to provide an evidentiary foundation for s 15(2)(a) to be considered. That is not surprising, so far as the applicant is concerned, since her case has always been restricted to a contention that Australia Post’s conduct contravened ss 15(2)(b) and (d). That is the case she has consistently advanced and the proceeding stands or falls on the success of those contentions.
91 It is not for the respondent, in final submissions, to invite the Court to embark for itself on a different characterisation of Australia Post’s conduct, so as to avoid for Australia Post the consequences of s 21A(4). It may well be the case that the applicant appreciated all along the import of s 21A(4) and pleaded the case as she did accordingly. It is not for the Court to speculate on such matters, but rather to consider the case as put by the applicant and determine whether she has discharged her burden of proof and, if the statute requires it, the respondent has discharged its burden of proof on the case made by the applicant. Accordingly, the applicant’s case will be considered on the basis that her pleadings and submissions that Australia Post contravened one or both of ss 15(2)(b) and (d) of the DDA. It is not appropriate to permit Australia Post to recast its conduct as, if anything, a contravention of s 15(2)(a). Even if it were otherwise appropriate, there is insufficient evidence before the Court to make any findings in favour of the contentions now sought to be put by Australia Post.
92 As to the application of s 15(2)(b), the applicant submits Australia Post, in the conduct comprehended by her three alternative contentions, denied Ms Watts access to benefits associated with her employment. She submits these benefits need not be pecuniary benefits. She was denied, she contends, the benefits of attending for work, of exercising her skills and performing her work, of using her accrued entitlements at a time and for a purpose or purposes of her choosing, and of earning her ordinary income in addition to her accrued entitlements.
93 As to the application of s 15(2)(d), the applicant submits Australia Post, in the conduct comprehended by her three alterative contentions, subjected Ms Watts to detriment in her employment. She contends she was subjected to the detriment of not being able to attend for work, not being permitted to exercise her skills and perform her work, being forced to use her accrued entitlements at a time and for a purpose or purposes not of her choosing, and being deprived of earning her ordinary income in addition to her accrued entitlements.
94 The detriments relied upon by the applicant for the purposes of s 15(2)(d) thus mirror the benefits relied upon for the purposes of s 15(2)(b), save that they are expressed in the negative. At [67]-[68] above I have given reasons why I do not consider this approach to the construction and operation of s 15(2) to be correct.
95 In terms of loss and damage, the applicant identifies four categories of loss and damage. First, there is a loss of earnings claim, for the period during which she was required to take leave without pay (namely 219 days), amounting to $76,619, to this figure to be added her superannuation and leave entitlements for that period. Second, there is the loss of accrued leave entitlements (namely 321.1702 days of annual leave, long service leave and sick leave), for which she seeks orders requiring Australia Post to reinstate and re-credit that leave. Third, she seeks compensation for annual bonuses lost during the time she was away from work, which she claims to amount to $14,457.00. Fourth, she claims for loss of superannuation entitlements which accrued during the period she was forced to use her paid leave, although this figure was not quantified.
96 The applicant also seeks declarations in respect of Australia Post’s unlawful discrimination, and general damages in the sum of $40,000.
AUSTRALIA POST’S RESPONSE
97 The respondent met Ms Watts’ case on several fronts. It raised few challenges to the material facts relied on by Ms Watts, although it submitted generally that Ms Watts’ case understated or ignored the lengths to which Australia Post went to try and obtain the necessary medical information from Ms Watts so that it could assess whether she was able to return to her role as bid manager, and what reasonable accommodations might be able to be put in place for her.
No discrimination
98 Australia Post submitted there was no discrimination within the meaning of s 5 of the DDA, and the Court should dismiss Ms Watts’ application. Australia Post made this submission on at least two bases: there was no less favourable treatment of Ms Watts because of her disability, and there was no failure to make reasonable adjustments under s 5(2).
No “adjustments” identified by the applicant
99 Australia Post contends that the applicant failed, both at the time of the alleged discrimination, and during this proceeding, to identify the content of the return to work plan said to constitute reasonable adjustments for the purposes of s 5(2).
100 Further, it contends the applicant cannot rely on the content of Ms Selvi’s first or second reports as constituting the reasonable adjustments which Australia Post should have made, because the content of both of those reports is too vague and uncertain. The respondent relies in part on Ms Selvi’s own evidence, where it submits she conceded in cross-examination that she was not provided with all the information she needed for the report, that she did not have clarity of what was required of her and that she sincerely appreciated that Australia Post did not understand what was meant by the recommendations she had made.
Australia Post proposed to make reasonable adjustments at all relevant times
101 For the period 28 April 2012 (the date of Dr Hollander’s report) to 30 July 2012 (when Ms Watts returned to work) Australia Post contended it was always proposing to make reasonable adjustments within the meaning of s 5(2) of the DDA.
102 Australia Post further contended in final submissions that, because at all relevant times from February 2010 it was taking steps to determine whether or not reasonable adjustments could be made for Ms Watts, it was at all relevant times proposing to make such adjustments within the meaning of s 5(2) of the DDA. In other words, the contention made separately and expressly in relation to the period after Dr Hollander’s report was prepared was ultimately relied upon by Australia Post in relation to the whole period of alleged unlawful discrimination.
103 As to the entire period, Australia Post contends that its policy complied with the DDA, and that its witnesses were unchallenged in their evidence that Australia Post at all relevant times sought to apply the policy to Ms Watts’ circumstances. In the absence of any attack by the applicant on the lawfulness of the policy (or the policy’s compliance with the DDA), Australia Post contended that Australia Post did all it reasonably could to obtain the requisite information from Ms Watts, so as to follow the policy it had promulgated for dealing with employees in these circumstances. There was ample evidence, Australia Post contended, to demonstrate that at all relevant times it proposed to make reasonable adjustments for Ms Watts.
No less favourable treatment: comparator
104 Australia Post contended that whichever comparator is used (and Australia Post contended for a different comparator to the ones identified by the applicant), and for all three periods identified by the applicant, Ms Watts was not treated less favourably by Australia Post. In other words, Australia Post would have treated an appropriate comparator employee in the same way.
105 Australia Post contended (and the applicant agreed) that there was no actual comparator available, so that the comparator must be hypothetical. One of the respondent’s principal contentions was that the comparator must be a person without a disability: it could not be, as the applicant submitted, a person with a different disability. The respondent relied on Purvis 217 CLR 92; [2003] HCA 62 at [222] per Gummow, Hayne and Heydon JJ and Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661 at [137] per Gilmour J for this proposition.
106 Australia Post contended that the attribute of the applicant’s hypothetical comparator — that she was “ready, willing and able” at all relevant times to work — was not an attribute that Ms Watts shared. From October 2008 to 30 July 2012, Ms Watts continued to provide medical certificates to the effect she was not fit for her usual duties; her GP never certified her as fit to return to her duties as bid manager. Further, Australia Post contended that Ms Watts’ hypothetical comparator (especially the “willing” aspect), ignored the evidence about her continued lack of cooperation with Australia Post’s requests and with its attempts to apply the policy to her. Though unhelpful to her this attribute must, Australia Post contended, be given to the hypothetical comparator.
107 Therefore, Australia Post contended, the appropriate comparator in the present case is a person without Ms Watts’ disability who is certified as unfit to perform his or her original role (or certified as fit only to perform restricted duties), a person who has refused to attend medical examinations, refused to provide the required medical information and refused to allow his or her employee directly to contact any medical practitioners to obtain that information. Australia Post contended such a person would have been treated as Ms Watts was — that is, not allowed to return to work until Australia Post had the medical information it required to determine what duties could be performed and whether the employee could return to their appointed role.
108 As to an employee with a different disability, in the alternative to its submission that such a person cannot be an appropriate comparator, Australia Post contended there was no evidence that it would have treated any other employee differently to the way it treated Ms Watts. Restricted duties were given, on the evidence, to employees within the terms of the policy and not outside them. Ms Watts’ circumstances — and the length of time she had been on restricted duties (19 months according to Australia Post, this period being counted from her initial return to work in October 2008) — were far outside the policy. It was clear, Australia Post contended, that any other employee would have been treated in the same way as Ms Watts. Further, Australia Post submitted that, in the absence of any cross-examination of Ms Scott-Brown and Ms Garrad to the effect that an employee with a different disability would have been provided with restricted duties and not directed to go on sick leave, the applicant should not be permitted to put this argument. Australia Post contended the applicant was precluded from the argument by the rule in Browne v Dunn (1893) 6 R 67.
No less favourable treatment: no causal nexus
109 Even if, contrary to its submissions, there was less favourable treatment, the respondent also contended there was no causal nexus between the way Ms Watts was treated and Ms Watts’ disability.
110 The respondent submitted the real reason for Ms Watts’ treatment (in being directed to take sick leave and not being permitted to return until after Dr Hollander’s report had been implemented by Australia Post) was that the policy was applied in its terms to her. In other words, the real reason was Ms Watts’ own failure (over the entire period, including 18 months during which she refused to be medically examined by Dr Hollander) to provide Australia Post with the medical information it required in order properly to assess her work restrictions and any adjustments that could be made. This position was, Australia Post contended, only broken by the direction it gave Ms Watts in October 2011 under threat of the commencement of disciplinary proceedings, and even then Ms Watts did not comply with that direction until February 2012.
No contravention of sections 15(2)(b) or (d)
111 Australia Post also submitted that there was no loss of a benefit to, or imposition of a detriment on, Ms Watts for the purposes of ss 15(b) or (d) of the DDA and so, even if there was discrimination, it was not unlawful.
112 Australia Post contended that subss (2)(b) and (d) did not apply because those provisions only apply, it was submitted, to an employee performing the inherent requirements of her or his role, where an employee’s terms and conditions of employment remain unchanged. That was not Ms Watts’ circumstances, Australia Post submitted.
113 Rather, Ms Watts had her terms and conditions of employment changed in February 2010 by the application of the policy to her. The decision by Australia Post not to provide Ms Watts any further with restricted duties from May 2010, and to direct her to go on sick leave, amounted to a change in her terms and conditions of employment by Australia Post. This, it was said, brings Australia Post’s conduct within subs (2)(a), rather than subss (2)(b) or (d). I have rejected Australia Post’s late reliance on s 15(2)(a), for reasons given at [89]-[91] above, and do not consider it further.
114 If ss 15(2)(b) and (d) did apply, then Australia Post contended Ms Watts had not been denied any “benefits” (emphasising the plural) associated with her employment. As a matter of construction, this term is limited to non-salary employment benefits such as salary packaging, bonuses and the like.
115 Nor, Australia post submitted, was any “other detriment” imposed on Ms Watts. There was a change to the terms and conditions of her employment, but nothing more, and any “detriment” to Ms Watts was consequential to a change in her terms and conditions of employment. The word “other” means something outside paras (a) to (c) inclusive.
If otherwise a contravention of sections 15(2)(b) or (d), the exception in section 21A applies
116 Counsel for Australia Post conceded during final submissions that s 21A can only assist Australia Post if a contravention of ss 15(2)(a) or (c) is involved. For the reasons I have set out earlier, in my opinion the applicant’s case is and has always been limited to ss 15(2)(b) or (d) and should be determined on that basis. Accordingly, there is no occasion to consider further the application of s 21A.
GENERAL FINDINGS IN RELATION TO WITNESSES AND THEIR EVIDENCE
117 In this part of my reasons, I set out my findings about the reliability of each witness’ evidence. Aside from Ms Watts’ evidence (which I deal with in other parts of these reasons where necessary), I also set out those parts of the witness’ evidence which I consider to be particularly material to the issues the Court must determine.
Ms Watts
118 Ms Watts is a longstanding employee of Australia Post. It was not contested by Australia Post that she has been an experienced and valuable employee who exhibits high levels of diligence in her work.
119 Although there are not many contested issues of material fact in this proceeding, Australia Post put the attitude of Ms Watts to her return to work, and to Australia Post’s implementation of the policy, as an important feature of its case. Its submissions rested on showing Ms Watts as uncooperative, unreasonable and often hostile to Australia Post’s attempt to have her return to work through an application of the policy. It sought to lay blame for the delays squarely at Ms Watts’ feet. Ms Watts was a difficult witness to assess. When pressed in cross-examination about particular events, she tended to deny propositions put to her in circumstances where it was difficult to understand what was being denied, and why. For example, she was cross-examined about a conversation with Ms Scott-Brown, where Australia Post alleged she accepted she had had some “setbacks” in her return to work and her recovery from the incident with Ms Marshall in 2008. Ms Watts’ answers often appeared evasive and unnecessarily argumentative — whether she had difficulty with the word “setback” and, if so, why, was not clear. One inference might be that she saw something disadvantageous to her case in admitting she had recognised in conversation she had had setbacks. Another might be that she was overly concerned about the exactness of particular propositions, where they concerned her. Another might be that she was stubbornly refusing to agree to anything put to her on behalf of Australia Post.
120 Another example was the cross-examination about the medical information release Australia Post had tried to get Ms Watts to sign, from about February 2010 right through until April 2012. Ms Watts agreed in cross-examination that she refused to sign the release, but asserted that she did not understand the plain information on the release form to the effect that, by signing the release form, Australia Post could obtain medical information from, and talk to, her treating doctor. Her answers in cross-examination seemed disingenuous for a person of her obvious capabilities. Similar alternative inferences to those set out in the preceding paragraph might be drawn.
121 As the evidence progressed and after the evidence of Mr Psarologos, to which I refer below, a fuller picture of Ms Watts appeared. Ultimately I formed the view Ms Watts was neither deliberately evasive, nor disingenuous in her evidence. I find Ms Watts to be an intelligent person, with a great command over and interest in matters of detail. She is very process driven, which is no doubt a considerable asset in her approach to her work at Australia Post, but when she is personally involved in a process, this personality trait can mean that she appears and can become uncooperative and obsessive. The more difficult or confronting the situation, the more Ms Watts seems to resort to, and find some comfort in, absolute precision — whether it is which word is chosen in a statement, the meaning of a document, the characterisation of her reaction to an event. Her insistence on precision then overwhelms her response, to an extent that is no doubt frustrating and confusing to those who must deal with her. This tendency was evident in the way she answered questions both in cross-examination and in re-examination.
122 I find she gave her evidence honestly, although at times with a tendency not to recall matters which she may have perceived to be to her disadvantage to recall. That feature is, I find, an unfortunate legacy of the very confrontational approaches taken by both parties to the situation which gave rise to these proceedings. Consistently with the findings I have made above, she had a good command over the detail of her dealings with Australia Post and, where there is a conflict between the evidence of what she was told, or what was said, during a conversation where there were otherwise no contemporaneous records, I find her evidence to be preferable on the basis that she was highly motivated to retain the details, and to do so with precision.
Ms Selvi
123 I found Ms Selvi’s evidence reliable, although it was clear she had a particular perspective as a treating psychologist who deals with many injured workers. I accept her evidence that she was willing to cooperate with Australia Post in exploring ways to return Ms Watts to work in her role as bid manager, even before the events of February 2010. It is clear there was a period during which she was substantially unavailable to provide medical information to Australia Post due to having had a serious car accident. Her unavailability did cause some delays in Australia Post receiving her second report. No blame attaches to Ms Selvi for this. In any event, Australia Post were dissatisfied with her second report and refused to act on it, so the timing of the report in that sense did not affect Australia Post’s course of action. Since she was not an independent psychologist, but rather Ms Watts’ treating psychologist, it is unsurprising that both her evidence and the tone of her reports tended to be supportive of Ms Watts. This does not diminish the reliability of her evidence, nor does it suggest it should not be afforded due weight.
124 That said, I find that her explanation for her diagnosis of acute stress disorder in Ms Watts in 2008 did have the objective weaknesses identified by Dr Hollander and to which I refer below. Any debate about that diagnosis is of marginal relevance to the issues in this proceeding.
125 On issues such as how Ms Watts presented to her, and the negative impact that Australia Post’s conduct in dealing with Ms Watts’ return to work had on Ms Watts, I accept her evidence, especially in her second report, which I deal with in more detail at [297]-[300] below.
126 On the key question about the content of the recommendations in her report, and the restrictions to which Ms Watts should be subject for the first few months, it is appropriate to deal with that question in the context of the findings I make about contravention of the DDA below at [227]-[271].
Ms Scott-Brown
127 When Ms Scott-Brown came into her role as the Human Resources Manager for the Commercial area of Australia Post in Victoria and Tasmania in August 2009, the workers’ compensation claims made by Ms Watts remained unresolved. Ms Scott-Brown occupied this position during the agreed resolution of the AAT proceedings in relation to the SRC Act. It was she who decided, apparently somewhat abruptly in early 2010, that the policy should be applied to Ms Watts and that Ms Watts could not continue to work for Mr Schell in the role and in the manner she had been working.
128 Ms Scott-Brown expressed firm views in her evidence about Ms Watts’ attitude, and also that of her union representatives. For example, her evidence was that
I formed the view that Ms Watts and Ms Paliouras would bulldoze Ms Dillon in meetings, leaving her very brow-beaten. However I was an executive, and had been at Australia Post for a long time. I believe Ms Watts knew that there would not be any scope for her to play games with me.
At another point, Ms Scott-Brown sent an email to Ms Watts, alleging that she treated her staff (and Ms Dillon in particular) in a “disrespectful manner”. Ms Scott-Brown agreed in cross-examination that she had never spoken to Ms Watts about these allegations, but rather put them in an email to her. The details of the interactions between Ms Watts and Ms Dilion were not explored in cross-examination by either party. Ms Dillion was not called as a witness. Ms Scott-Brown clearly disapproved of the way Ms Watts behaved, and could not understand it. Certainly Ms Watts is persistent and perhaps obsessive in her attention to detail and her insistence on precision. Her tone and style in emails before the Court can be brusque. However the picture of Ms Watts which Ms Scott-Brown sought to paint in her evidence (of Ms Watts deliberately obfuscating for no good reason, and being unacceptably confrontational) is not one I entirely accept.
129 At another point in her evidence, Ms Scott-Brown expressed the view that, after Ms Selvi’s second report in February 2011, “the only impediment to a satisfactory return to work seemed to be Ms Watts’ unwillingness to genuinely co-operate and accept the assistance she was being offered”.
130 In contrast to this obvious scepticism about Ms Watts, Ms Scott-Brown’s evidence was also replete with references to Australia Post’s “duty of care” to Ms Watts, and to her own concern about how Ms Watts would deal with a return to work. For example, she made statements in her evidence to the effect that “I was particularly concerned about the prospect of Ms Watts having a significant relapse and that Australia Post would, as a result, not fulfil its duty of care to her”. I do not accept that Ms Scott-Brown was as motivated by her concern about Ms Watts’ wellbeing as her evidence tried to suggest. I find her principal motivation was to insist, from her employer’s perspective, that Ms Watts adhere to and act in accordance with the policy, and essentially do what Ms Scott-Brown on behalf of Australia Post required her to do. The interactions between Ms Scott-Brown and Ms Watts, and their respective attitudes as they emerge from the evidence, are good examples of the entrenched positions on each side, which substantially contributed to the inordinate amount of time it took to arrange for Ms Watts to return to work after being directed on sick leave.
131 I find Ms Scott-Brown displayed very little independent recollection and, when challenged, pulled back from asserting any independent recollection. That is to be expected given the passage of time and her position in Australia Post where she was dealing with a range of employees and a range of workplace issues. Ms Scott-Brown appears to have made up her mind about Ms Watts as an unreasonable and difficult employee who “played games” at the time she decided to insist the policy be applied to Ms Watts in 2010. I found her evidence at times to be unduly defensive. The scepticism about Ms Watts and her motivations contained in her affidavit evidence and to which I have referred was also apparent in her oral evidence.
132 I do not accept Ms Scott-Brown’s characterisations of Ms Watts and her motivations, nor do I accept her evidence that her own decision-making was principally motivated by her concerns to discharge a duty of care to Ms Watts. I find Ms Scott-Brown sought to ensure the policy was implemented and applied in its terms, and that was her principal motivation in her interactions with both Ms Watts and Ms Selvi.
133 Notwithstanding my concerns about Ms Scott-Brown’s evidence, the contemporaneous documentation exhibited to her affidavit reliably discloses much of the relevant course of conduct by Australia Post, and by Ms Watts. That documentation, together with the documentation attached to Ms Garrad’s affidavit, forms the basis for many of my findings of fact. Further, I do accept that eventually Ms Watts’ approach to her return to work did become uncooperative, but her approach does not warrant that characterisation for the whole period under consideration.
Mr Schell
134 During 2009 and 2010 Mr Schell was the Product Manager of the Cross Business Solutions service within Australia Post. After she worked for a short period time on a part-time basis in the marketing area, Ms Watts returned to work after her 2008 injury to a position subject to Mr Schell’s supervision. Mr Schell’s evidence was that when he was approached by Australia Post’s human resources team to see if he had any part-time work for Ms Watts he saw an opportunity for her to work in his team. He described himself as “an informal mentor and a confidante for Ms Watts during the time she worked with me”. Making allowances for the reduced scope and complexity of her tasks while she worked in his team, Mr Schell described the quality of Ms Watts’ work for him as “very good”. In his evidence he described how, because of the nature of her role in his team, he was able to be generous and flexible with timelines, working hours and tasks. He accepted in cross-examination this was appropriate for a person returning to work with medical restrictions. His opinion was that Ms Watts was “honest and upfront” about what she could and could not manage, and his conversations with Ms Watts were always very “upfront”. He said that he never had cause to speak to Ms Watts or raise issues with her about her behaviour in the workplace, characterising her as polite, respectful, and diligent with a high standard of work. In relation to tasks he set out in his evidence in more detail he described Ms Watts as providing “valuable assistance”. He said he would have been willing to provide her with work for as long as an arrangement was required, although his understanding was that, if there were ongoing medical restrictions, he would “have to make a business case” and the outcome of that could not be predicted.
135 I found Mr Schell to be a forthright and honest witness, who took a measured and fair approach to the evidence he gave. I accept his evidence as I have outlined it above. It was not attended by the kind of scepticism about Ms Watts which was displayed by Ms Scott-Brown.
Ms Marshall
136 Ms Marshall was the Australia Post employee most closely involved in the incident which resulted in Ms Watts’ psychological injury in 2008. That incident involved an application by Ms Watts for a leadership program within Australia Post called “Tomorrow’s Leaders Program”. Ms Marshall’s evidence was that acceptance into the program was a “valuable opportunity” for employees. Ms Watts was unsuccessful in her application and there appears to be some debate over how positive Ms Marshall was in her assessment of Ms Watts during the selection process for the program. Ms Marshall participated in giving Ms Watts feedback about why she was unsuccessful, although another Australia Post employee (Ms Goulas) led the feedback session because she had been on the selection panel. One of the points of feedback given to Ms Watts was that she needed further development in her communication skills. This feedback session seems to have been the trigger for Ms Watts’ psychological injury.
137 Ms Marshall’s evidence described in some detail the course taken by Ms Watts’ complaint about this event, and her injuries, including a rebuttal by Ms Marshall of many aspects of Ms Watts’ complaint. None of these matters are material to the issues the Court must decide in this proceeding. Ms Marshall’s evidence also dealt in some detail with ongoing proposals for a mediation between her and Ms Watts, which Ms Watts’ treating GP and Ms Selvi both saw as important for Ms Watts’ recovery. This was a prospect Ms Marshall, for a variety of reasons, was uncomfortable with and ultimately would not agree to.
138 Ms Marshall’s evidence was that, since Ms Watts has returned to work under Dr Hollander’s recommendation in July 2012, and after the first two weeks of her return, “whilst I interact with Ms Watts professionally, I am not required to supervise her in any way”. This is the most material aspect of Ms Marshall’s evidence to the issues in this proceeding. In terms of their working relationship (which over the three or four years before Ms Watts’ return to work in July 2012 seemed to be the most potentially fraught of Ms Watts’ working relationships), an “adjustment” in respect of face to face interaction between Ms Watts and Ms Marshall was in fact only necessary for two weeks, and an “adjustment” as to supervision arrangements appears to have readily been implemented.
Ms Garrad
139 Ms Garrad took over human resources management responsibilities from Ms Scott-Brown for Ms Watts in approximately September 2011. Like Ms Scott-Brown, it was through her evidence that much of the contemporaneous documentation flowing between Australia Post, Ms Watts and the union was adduced.
140 Like Ms Scott-Brown, Ms Garrad had a sceptical opinion of Ms Watts. Her affidavit evidence included the following statement: “I believed that Ms Watts was attempting to frustrate the process [of arranging an independent medical examination by Dr Hollander]”. I accept there is basis for her scepticism about Ms Watts’ attitude in respect of continuing failed arrangements to attend Dr Hollander. As I have found at [121] above, Ms Watts’ obsession with process and precision made her uncooperative and at times confrontational with Australia Post. By April 2011, I accept these tendencies seem to have become extreme enough as to replace her readiness and willingness to return to work.
Mr Psarologos
141 Mr Psarologos has been the head of the bid management team at Australia Post since October 2010. He gave evidence about the bid management team structure within Australia Post, including a restructure which was completed in May 2011 and resulted in the formation of one national bid management team. He also gave evidence about the function of the bid consultant position which Ms Watts occupied, which was renamed “bid manager” after the 2011 restructure.
142 Mr Psarologos was involved in the “reasonable adjustments assessment” carried out internally by Australia Post in March 2011. His evidence was that:
On 16 March 2011, Ms Marshall and I provided a further draft of the reasonable adjustment assessment to Ms Blackman. On 16 March 2013, Ms Blackman reviewed that assessment and provided advice as to what was legally required by Australia Post. I understood from that advice that Australia Post was required to make adjustments to work methods but Australia Post was not required to:
(a) change the inherent requirements of the job;
(b) maintain a job which could otherwise be altered or abolished;
(c) assign performance of some inherent requirements to another employee;
(d) create a different job; and/or
(e) promote or transfer to a different job.
143 He went on in his affidavit evidence to explain why he believed that some of the proposed restrictions in the second report by Ms Selvi could not be accommodated from the perspective of the bid management team. His evidence was that the difference between Ms Selvi’s suggested restrictions and those of Dr Hollander was that the latter did not recommend restrictions on multi-tasking, avoiding stress and avoiding deadlines.
144 His evidence was that, after the May 2011 restructure and together with some other staffing and structural changes, the team has “far more resources and flexibility than we once had in terms of how we can arrange work matters”. His affidavit continued:
In my view, we are now a far more mature team, organisationally speaking, than we were previously, and we have significantly improved our processes and systems. This, along with the increased resourcing, has meant that it is easier than it was (in early 2011 and earlier) for Bid Managers to do their job.
145 His evidence was that he still provides Ms Watts with more support than he does other bid managers and that she is still working towards managing multiple bid opportunities. He gave evidence about the development plan he has for Ms Watts in terms of assisting her to manage more complex bid opportunities.
146 Like Mr Schell, Mr Psarologos was a frank and honest witness who impressed me as a person with no particular stake or agenda in the subject matter of this proceeding. He was complimentary about Ms Watts’ performance and gave a frank account of her positive performance in her role, characterising her as polite, cooperative, and methodical. He stated that he had never had to counsel her “in a bad way”. His evidence made it clear that Ms Watts is very process driven, and that was why she was so methodical. He gave the impression he understood the way those characteristics could be manifest unhelpfully in a workplace environment, without careful management. It was clear from his evidence that Mr Psarologos has a good working relationship with Ms Watts, and (as any competent manager should) he understands her personality and approach to her work sufficiently well that he assists her to perform to her strengths and improve in areas where she needs further development. I found his evidence reliable and of assistance in determining, to the extent it is relevant to the material issues in his proceeding, how Ms Watts performs in the Australia Post workplace.
Dr Hollander
147 Despite the somewhat tortured history of how Ms Watts eventually came to be examined and assessed by him, Dr Hollander’s evidence was clear and reliable. Dr Hollander agreed, fairly, in cross-examination that the difference between the reported symptomatology of Ms Watts in Ms Selvi’s reports of June 2010 and February 2011, and also between Ms Selvi’s reports and his own reports in August 2013, could be consistent with changes in Ms Watts symptomatology over that period.
148 He accepted that Ms Watts’ condition had caused her a significant degree of distress, which had improved by the time he saw her for examination in 2012, but also agreed the nature of the symptoms she had reported had a significant impact on her personal life. He saw the continuation of legal proceedings, in particular the AAT proceedings, as a contributing factor to her symptomatology.
149 He disagreed with Ms Selvi’s diagnosis, in 2008, of Ms Watts as having an acute stress disorder, because the diagnostic criteria in the Diagnostic and Statistic Manual of Mental Disorders Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR) (being the relevant edition of the accepted diagnostic manual at the time both his and Mr Selvi’s reports were produced) require identification of an event a person experienced, witnessed or was confronted with which involved actual or threatened death or serious injury. It is unnecessary to make any findings about whether, at the time she made the diagnosis of acute stress disorder, such a diagnosis was open to Ms Selvi. That diagnosis did not, on the evidence, have any material or different impact on the adjustments which were said to be necessary for Ms Watts in her workplace at Australia Post.
150 As to Ms Watts’ attitudes as he experienced them during his examination of her, his evidence was that she was cooperative and genuinely reporting her symptoms. However, when asked if he found her motivated to return to work, he replied that when he attempted to explore specific return to work issues with her, Ms Watts had a “pattern of response whereby she deferred all those decisions to Ms Selvi’s recommendations, rather than willing to openly engage in an exploration of specifically what residual symptoms were contributing to limitations to working at the time”. The matter was not explored further in evidence with Dr Hollander by either party, so there is no clear evidence or inference about why that might have been how Ms Watts responded. However, these reservations are consistent with the findings I have made that, from April 2011, Ms Watts was not cooperative about returning to work.
151 Dr Hollander’s report contained some observations about Ms Selvi’s recommendations on Ms Watts’ return to work. Quite properly in his evidence he clarified that his observations were intended to imply that these were not medical issues, but rather his summary of the employer’s perspective. He also gave evidence that the process by which another psychiatrist — Dr Congiu — had come to sign off on a report to Australia Post, about the circumstances under which Ms Watts could return to the bid manager role, was not a process he thought appropriate. Dr Hollander did not consider it appropriate for Dr Congiu to have signed off on a report by cross-referencing to Ms Selvi’s detailed recommendations, when he had not seen them. I deal with Dr Congiu’s report at [171]-[174] below.
FINDINGS
The course of events as disclosed by the evidence
152 Ms Watts was first employed by Australia Post in November 1987, as a trainee postal services officer. She worked her way up to the position of bid consultant in the bid management team of Australia Post.
153 The bid management team is responsible for the coordination and preparation of bids, tenders and proposals for which Australia Post competes. Bid consultants (or managers) within the team provide pre-sales support and research prior to bids or tenders, assess and evaluate the bid opportunities for Australia Post, ensure consistent national processes are adhered to in preparing and presenting the bid, manage cross-functional teams involved in preparing the bid and conduct analysis after the bid outcome is known.
154 In April 2008, Ms Watts applied for, but did not receive, a place in a leadership training program offered by Australia Post. She received feedback from her then manager, Ms Marshall, about why she missed out. Ms Watts suffered a severe psychological reaction. The effect of this event on Ms Watts was significant. Aside from emotional reactions, her sense of demoralisation was such that she reported experiencing headaches, dizziness, difficulty breathing, tiredness and great difficulty sleeping. It might be thought that Ms Watts’ reaction was extreme and unusual. However, there was no suggestion her reaction, and the psychological condition she sustained, were anything other than genuine and significant. Ms Selvi’s evidence was to that effect and I accept her evidence on this issue. The evidence before me discloses that Australia Post acted at all times on the basis that Ms Watts’ reaction was genuinely experienced. I accept that to be the case.
155 Although the evidence was not clear, it appears Ms Watts was away from the workplace because of this incident from approximately May 2008 to October 2008. She did not return to her position in the bid management team. Instead, she returned to work on a part-time basis undertaking data entry in the marketing area. Then, in early 2009 as part of a return to work plan, she commenced work for Mr Schell in the Cross Business Solutions service. Ms Watts’ return to work plan is not in evidence. Indeed, there was little evidence about how Australia Post was discharging its obligations under ss 37 and 40 of the SRC Act to assist Ms Watts to return to work. The evidence is that the work Ms Watts was undertaking when working for Mr Schell was at an AO4 level. There is some evidence to the effect that the work she was performing for Mr Schell was increasing in complexity, but it was clearly still some way from an AO6 level, and it was outside the bid management team. Nevertheless, and paricularly taking into account Australia Post’s obligations under the SRC Act, I am prepared to infer that, while she was working for Mr Schell, both she and those responsible for her management at Australia Post were intending that she would return to her AO6 role within the bid management team.
156 On the evidence, it seems all was progressing well in the workplace. However, Ms Watts had an outstanding workers’ compensation claim that had not resolved. Australia Post is a self-insurer pursuant to Part VIII of the SRC Act. The dispute had reached the stage of the AAT.
157 On 7 December 2009, Ms Watts’ workers’ compensation claim was settled under s 42C of the Administrative Appeals Tribunal Act 1975 (Cth). The orders of the AAT are important to an assessment of Australia Post’s arguments and I refer to them in more detail at [211]-[213] below.
158 Shortly before the AAT settlement, Ms Toni Scott-Brown commenced in the role of Manager, Human Resources — Commercial Vic/Tas. She had been employed by Australia Post since 1994. She was responsible for the management of the return to work programs for, amongst other employees, Ms Watts. In her evidence she described how, in early 2010, she looked through Ms Watts’ file and could not understand why Ms Watts was still being managed as if her workers’ compensation claim had not resolved. Ms Scott-Brown decided it was appropriate to manage Ms Watts under Australia Post’s non-work related medical restrictions policy. She made this decision, on her evidence, in about February 2010.
159 It appears to have been quite a sudden decision, not taken after any consultation with Ms Watts or the union, nor with those responsible for supervising and managing her. It is unclear why such a sudden change to her return to work arrangements, which seemed to be going relatively smoothly, needed to be made, but the fact is that it was.
160 The applicant was told in a meeting with Ms Dillon on 8 February 2010 that the policy would henceforth be applied to her. This was followed up with advice in a letter from Ms Scott-Brown dated 15 February 2010. Ms Watts disputed this decision and some communications, mostly by email, between her and Ms Scott-Brown ensued.
161 Australia Post requested Ms Watts provide it with the medical information the policy stated an employee should provide. For example, in a letter dated 29 April 2010, Ms Scott-Brown told the applicant:
In order to assist with the progression of mediation [this is a reference to proposed mediation between Ms Marshall and Ms Watts] and your return to work, Australia Post (correspondence dated 26 March 2010) requested that you provide further medical advice to determine whether your medical restrictions can be accommodated at work. This information was to be provided within the one-month ‘fair opportunity’ period which was to end on Monday 12 April 2010.
Subsequently you submitted a letter dated 8 April 2010 from Dr Prem Saranathan seeking an extension to the specified date of 12 April 2010 to enable you to obtain further feedback from a consulting psychiatrist. Australia Post accepted this request on the basis that we had been advised that you were in the process of making an appointment to see a psychiatrist. Since 8 April 2010 we have not received any further advice from you regarding your request.
We require this information from your medical adviser as soon as possible to enable Australia Post to meet its duty of care in relation to your situation. We wish to ensure that we have made all reasonable efforts to accommodate your medical circumstances. Without this advice we are unable to progress your return to work and we are unable to ensure that the temporary duties that you are currently being provided can continue to meet your restrictions and business needs.
You will continue to be managed under the Non-Work Related Medical Restrictions Policy (please read the enclosed Employee Information Sheet). In light of your inability to provide information in a timely manner, your one-month ‘fair opportunity’ period ends next Friday 7 May 2010. Without this information Australia Post is unable to make any determinations in regards to the limitations we would need to consider in your work situation. You may be directed onto sick leave if your workplace is unable to continue to accommodate your medical restrictions after the one-month ‘fair opportunity’ period. However, before this occurs, you would be offered the opportunity to discuss this and your manager would consider any suggestions you may have in this regard.
As previously advised, if you decide to obtain the information required by Australia Post, you must organise this with your own doctor at your own expense.
162 More correspondence ensued, this time including Dr Saranathan, Ms Watts’ treating general practitioner. Dr Saranathan is the medical practitioner who, since October 2008, had been giving Ms Watts medical certificates stating that she was not fit to resume her pre-injury role of bid manager, without restrictions. The certificates issued by Dr Saranathan contained, on Ms Scott-Brown’s evidence, the same formulation over the relevant period of time: namely a diagnosis, specification of restricted hours and restrictions on work. However, after her decision to apply the policy to Ms Watts, Ms Scott-Brown considered these certificates contained insufficient information for any decision-making by Australia Post.
163 By early May 2010, Ms Watts had not supplied the medical information Australia Post has been asserting its policy required her to provide. Ms Scott-Brown expressed her concern to Ms Watts that she was taking “unreasonable and arguably unrealistic lengths of time” in securing appointments with her medical practitioner to obtain the reports Australia Post was insisting on. Ms Scott-Brown asked for a meeting with Ms Watts. For her part, Ms Watts was insistent on having a particular union representative at the meeting who had been dealing with the issue, which seems to have delayed the meeting process.
164 Eventually, at a meeting on 11 May 2010, Ms Watts provided a certificate from Dr Saranathan, which certified her as fit to return to work on modified duties for between 5 and 7.35 hours per day. The certificate also stated that Ms Watts’ return to work “must take into consideration Andrea’s medical and psychological needs as specified in the letter by Muradiye Selvi”. After their meeting, Australia Post then corresponded with Ms Watts on the same day to inform her that the information in the certificate was insufficient. There is a debate, which need not be resolved, whether Ms Watts was told at the meeting that the information was insufficient. Clearly Australia Post’s letter said as much. It also insisted, again, that Ms Watts arrange for Dr Saranathan to complete the form issued under the policy, and write a letter including the matters Australia Post asked for information about in its proforma letter issued under the policy. The letter sent to Ms Watts warned her she could be directed onto sick leave if she did not obtain the medical information.
165 Further emails, correspondence and meetings occurred, the substance of which was that Australia Post continued to insist on Ms Watts providing, at her own expense and by her own arrangements, medical information which in form and substance reflected what the policy required. Ms Watts continued to protest that either she did not understand what information she was required to provide, that she was not in a position to provide the information, or asked again what information was required. It appears both she and her union representatives also alternatively asserted Australia Post had all the medical information it required. Australia Post for its part continued to assert it did not have enough information and Ms Watts knew what she had to provide.
166 Although the sequence of events in the evidence is not wholly clear, it appears that, at a further meeting on 18 May 2010, Ms Scott-Brown told Ms Watts that, since she had not provided the further medical information Australia Post said it needed, Ms Watts would be directed to take sick leave. This was confirmed in a letter of the same date. After some negotiation, Australia Post agreed Ms Watts could access her recreation leave instead of sick leave until the medical information was received. Ms Watts went on leave, in accordance with Australia Post’s direction, from 18 May 2010.
167 On 7 June 2010, Ms Watts acknowledged she could not yet provide the medical information Australia Post required to revoke the direction and permit her to return to work.
168 I set out below examples of the tenor and content of the exchanges between Ms Watts and Ms Scott-Brown. On 7 June 2010, Ms Watts sent an email in the following terms:
Hello Toni.
I trust you have received my voicemail to you this morning advising you that I will not be coming into work today. I have briefly liaised with Ray Gorman of the CEPU regarding the current situation.
It appears that it may be some time before the NWRMR proforma will be completed. We wish to clarify a few issues with you as these matters were not discussed at our last meeting on Tuesday 18 June 2010 [sic] and will assist us in deciding a suitable course of action. The issues are as follows:
* If an employee is directed onto sick leave under the NWRMR Policy for not providing the required medical evidence to Australia Post within the specified timeframes, what does the employee need to provide to Australia Post in order to return to work? Are there any other terms or conditions that apply to this employee in this situation?
* If an employee opts to use their own leave (e.g. RL or LSL) rather than being directed onto sick leave, for not providing the required medical evidence to Australia Post within the specified timeframes, what does the employee need to provide to Australia Post upon returning to work? Are there any other terms or conditions that apply to this employee in this situation?
* Upon supplying the required medical evidence to Australia Post, if restricted duties are not available or the employee can not be accommodated by Australia Post, what is the outcome for the employee?
I will discuss the information that you provide with Ray Gorman and advise you further on the situation. I will complete leave forms, as required, once these issues are addressed.
Thank you for your assistance.
Regards,
Andrea Watts
169 That email produced a series of exchanges between the two women, culminating in the following email from Ms Scott-Brown on 8 June 2010:
Good Afternoon Andrea,
Please refer to the documentation provided to you on three separate occasions since February of this year. If you require more specific information in relation to matters you are considering but which are not apparent to me, perhaps you could provide more specific questions.
I reiterate that you are required by Australia Post to provide a medical report from your doctor outlining the likely duration of your medical condition, the precise extent of your incapacity and any restrictions they believer would apply in relation to your nominal position. I have attempted to make this request clear on at least eight separate occasions in writing and in direct conversation in the presence of your union representatives.
If you do not provide this information for us to consider how we might assist your return to work, I have no further advice to provide at this time. In the meantime you are directed by close of business today to provide a leave request application form to cover the leave you are currently seeking. We will consider whether or not this can be approved for continuation depending on business requirements. On reflection of your questioning, perhaps you can advise me what it will take for you comply with this routine requirement?
Toni Scott-Brown
HR Manager, Commercial Vic/Tas
170 There is a sense in which the content of this correspondence passes the other party by like a ship in the night, and each continued simply to adhere to their respective and somewhat intransigent positions.
171 On 22 June 2010, Ms Watts returned to work in Mr Schell’s team. On the same day, or the day before, she delivered to Australia Post a copy of the policy’s proforma certificate, filled in by one Dr Congiu, a psychiatrist, and dated 8 June 2010. In the report, Dr Congiu referred to and relied upon a report from Ms Selvi as the document which set out the restrictions to apply to Ms Watts’ return to work. This report was dated 18 June 2010 and accompanied the proforma. It appears that Ms Watts considered she had met Australia Post’s requirements, and so she decided to come back to the workplace.
172 Dr Congiu’s certificate stated that the nature of Ms Watts’ medical condition was “Generalised Anxiety Disorder”. It stated the restrictions were effective “from today” (ie 8 June 2010) and, in answer to whether the employee could work her full rostered hours, he ticked “No” and stated “See enclosed psychologist’s report”. The proforma then listed a number of restrictions, most of which could never have any application to an employee in Ms Watts’ role and with Ms Watts’ kind of medical condition. They concerned things such as lifting, forceful pushing and pulling, standing tolerance and the operation of power equipment. There was a box for “Other restrictions” which was ticked, and after the request “please specify”, Dr Congiu had written “To be specified by treating psychologist (see report)”.
173 The form then asked if the restrictions were permanent or temporary, and the box “Temporary” was ticked. The next question asked was “when is it likely the employee will be able to perform the inherent requirements of the actual position they occupy (in terms of number of days, or weeks, or months)?”. To that question Dr Congiu answered “2–3 months”. The form itself stated that the “maximum allowable period of non-work related restrictions in the workplace is 3 months”. This seems to be an arbitrary period chosen by Australia Post, and there was no evidence about how or why the period of three months was chosen, aside from an assertion by Ms Scott-Brown it was a “reasonable period of time”.
174 Dr Congiu had then signed, dated and completed his professional details at the bottom of the form.
175 The accompanying report by Ms Selvi was in the form of a letter addressed to Ms Scott-Brown. It commenced with the following statement: “Please read the following information in conjunction with the “Australia Post Non-Work Related Medical Restrictions Medical Certificate” completed by Psychiatrist Dr D.L.Congiu dated 8/6/2010”.
176 The report then set out the number of hours per day Ms Watts could work for each of the three months, starting with six hours, increasing to seven and finally to 7.35 by mid-August 2010.
177 The report then continued:
Restrictions
Restrictions for Duties
Tasks and roles allocated to be less complex than AO6 Bid Consultant position
Avoid tight deadlines
Avoid tasks assigned simultaneously
Avoid one on one meetings with middle management (AO6 – AO8)
Avoid supervisory tasks and leading teams
Avoid tasks or situations where conflict would arise
Avoid working on the same floor as Ms Marshall and avoid communication or interaction with Ms Marshall (at least until mediation)
Duties to be performed at usual work location: 111 Bourke St Melbourne.
ALLOW BREAKS TO PRACTICE RELAXATION STRATEGIES WHEN ANXIETY LEVELS ARE HIGH
3.0 The Period For Which these Restrictions are required
Please note that the above restrictions are temporary.
4.0 Prognosis
It is anticipated that the Ms Watts will be able to perform the inherent requirements of her actual position after three months. If she is to return to position of ‘BID CONSULTANT’ and if she is to work with Ms Marshall than a mediation must take place before Ms Watts could return to her pre-injury position.
5.0 Upgrading
| Upgrade of Duties | |
| First and second month | AO5 |
| Third month | AO6 |
I am unsure of the level of tasks that Ms Watts has been performing over the past year or so since her return to work program but assume that it has been more of an AO5 level. Hence, I am confident that she can be upgraded gradually back to A06 after two months.
Recommendations on Mediation.
During my communications with Australia post and in our mutual efforts to assist Ms Watts with a viable return to work program, I have always advocated that mediation would be necessary to successfully return her back to the inherent requirements of her actual pre-injury position if she was to work with co worker Ms Marshall.
Due to the nature and the cause of the injury sustained by Ms Watts, it is important that there is a psychological resolution between Ms Watts and Ms Marshall if they are to work alongside each other without there being any risk of further injury or an exacerbation of any residual symptoms.
Hence, I would like to report that there has been no intentions on the part of Ms Watts to avoid mediation sessions or to intentionally halt her rehabilitation towards a return to full duties in her nominal role at Australia Post.
Based on Ms Watts current psychological functioning and her emotional status, there is no reason why Ms Watts can not proceed with the Mediation sessions, keeping in mind that such mediation will be important when she is ready to move to her pre-injury duties if she is to work with Ms Marshall.
I am further confident that given that Ms Watts has had ongoing supportive therapy to overcome the psychological impact of the primary injury, that she will function in her pre injury role without Mediation if she was not working with her co fellow worker Ms Marshall.
Thank you for giving me the opportunity to add to the medical certificate provided by psychiatrist Dr Congiu. Please do not hesitate to contact me if I could be of further assistance in this matter.
Yours sincerely
Muradiye M. Selvi
CONSULTANT PSYCHOLOGIST
178 Ms Scott-Brown did not read the documents until 23 June 2010 and was not aware until that date that Ms Watts had in fact returned to work with Mr Schell the previous day. Ms Scott-Brown was concerned Ms Watts had returned to work in the way she had, without Ms Scott-Brown having considered the medical information or having had a chance to implement any work restrictions. The fact that Ms Watts returned herself to work in this fashion is consistent with the uncooperative way each party had dealt with the other to that point. Ms Scott-Brown’s reaction further demonstrated the spirit of non-cooperation was to continue. Her emails to Ms Watts, although couched politely and with somewhat profuse gratitude for the provision of the information, made it clear that Ms Watts should go back on leave until Australia Post had made a decision about the information provided, or she would be directed onto sick leave again. Ms Scott-Brown stated:
You are to take leave as previously agreed in discussion with your union representative Mr Ray Gorman, until otherwise advised by me that I have considered your medical details and been able to make suitable arrangements to adjust work to suit your circumstances while also meeting business requirements. This step has not been completed and may take a week or so to expedite.
179 Another meeting was held on 29 June 2010 between Ms Scott-Brown, Ms Watts, Ms Dillon and Mr Gorman. During this meeting and in subsequent correspondence, Ms Scott-Brown told Ms Watts that the information provided by Dr Congiu and Ms Selvi was insufficient, in that it did not “detail the extent and duration of your restrictions, [sic] sufficient detail to enable us to establish a planned approach to your return to work”. Ms Scott-Brown directed Ms Watts to take sick leave “until further notice”.
180 Thus, it is at this point — through the direction given on 29 June 2010 — that Ms Watts is again involuntarily placed on leave and compelled to start again using up her leave entitlements, in circumstances where she believed she had complied with Australia Post’s requirements under the policy. After this meeting and correspondence, Ms Scott-Brown had some communications with Mr Schell. Ms Watts had been in touch with Mr Schell by email on 25 June 2010 inquiring about the tasks Ms Watts said were outstanding for him and about which she asked him to inform Ms Scott-Brown. Ultimately, the emails reveal Mr Schell was not going to take Ms Watts back into his team unless Human Resources authorised him to do so. Ms Scott-Brown was not going to authorise that until she had more information. And so the stalemate continued.
181 Ms Scott-Brown also sent an email around to other Australia Post divisions, inquiring if they had any “vacancies”, full or part time, at an AO6 level or below, and informing the recipients of the restrictions set out in Ms Selvi’s report, and the recommended restricted working hours. All divisions came back with answers to the effect that they had no vacancies, or could not accommodate the restrictions. The email itself and Ms Scott-Brown’s evidence suggest that the policy required such inquiries prior to directing an employee on sick leave. What then follows is a period of some months during which Ms Scott-Brown attempts to obtain further information from Ms Selvi, either directly or through Ms Watts. During this period, Ms Scott-Brown also confirms with Ms Watts that she, not Australia Post, is responsible for all costs associated with procuring Ms Selvi’s report, and her professional assistance. One of the main contributing factors to there being no further information forthcoming from Ms Selvi is the fact that she was involved in a serious car accident and was off work for a considerable period of time.
182 By the end of October 2010, Ms Scott-Brown had decided to “require” Ms Watts to attend a medical assessment by a practitioner nominated by Australia Post. This was Dr Hollander. Ms Scott-Brown informed Ms Watts of this requirement by email on 28 October 2010, noting that the matter of Ms Watts’ return to work had remained unresolved for more than a year.
183 Ms Scott-Brown made an appointment for Ms Watts with Dr Hollander on 4 February 2011. Ms A Rohowskyj, Senior Medical Consultant with Australia Post, sent Ms Watts a letter about the appointment — entitled “Fitness for duty assessment (initial)” — on 24 January 2011. Why there was a gap of some three months between Australia Post raising this independent medical avenue, the making of the appointment, and informing Ms Watts of it, is unexplained in the evidence.
184 The response from Ms Watts to this letter typifies the lack of trust and cooperation between her and Australia Post. Her response listed 25 questions and concerns she asserted she had. The answers to some of them would seem obvious to a person of Ms Watts’ seniority, intelligence and experience. Others display a preoccupation with issues of privacy and record keeping which seems inconsistent with Ms Watts’ recent experiences of having been through a workers’ compensation claim. One question asserted Australia Post already had “ample medical information about me”. The letter ended with the statements “In the interests of minimizing any inconvenience to Dr Hollander, I suggest that you postpone the scheduled appointment”. That statement could be taken in several ways: as a refusal to attend the appointment, or (at the other end of the spectrum) as a recognition that, with such short notice and so many concerns to be resolved, the scheduled appointment could not reasonably be met. The tone of Ms Watts’ questions is very direct, and could be construed by a reader as confrontational. That said, most of the 25 questions could also be described as legitimate, if somewhat obsessive. They are consistent with the evidence given by Mr Psarologos about his observations of Ms Watts’ personality — which I accept — and with my own observations and findings about Ms Watts. She was not an acquiescent and unquestioning employee where her own interests were concerned. Nor was she obliged to be.
185 In correspondence, which is somewhat repetitive in content, Australia Post answered Ms Watts’ questions. It asked for confirmation that she would attend the appointment. Ms Watts did not respond, but did not attend the appointment.
186 Once informed of Ms Watts’ non-attendance, Ms Scott-Brown told Ms Watts by email on 10 February 2011 that a further appointment would be made and Australia Post “expected” Ms Watts would attend. She also inquired again whether Ms Watts had any further medical information to supply Australia Post to assist with her return to work in her nominal position.
187 Subsequently, the appointment with Dr Hollander was fixed for 29 April 2011.
188 On 21 February 2011, Ms Scott-Brown met with Ms Watts and Mr Gorman, at their request. At this meeting, Ms Scott-Brown was given a second report by Ms Selvi. As she did with the first report by Ms Selvi, Ms Scott-Brown told Ms Watts and Mr Gorman that she would review it to see if it had sufficient information.
189 The second report by Ms Selvi again referred to the certificate given by Dr Congiu on 8 June 2010, and to the first report written by Ms Selvi on 18 June 2010. It was otherwise expressly said to be in response to Ms Scott-Brown’s letter of 20 August 2010: in other words, it was Ms Selvi’s attempt to provide the further information Australia Post sought. This second report was structured around the questions Ms Scott-Brown had asked in that letter.
190 Ms Scott-Brown formed the view that Ms Selvi’s second report still did not provide her with the information she needed. Her evidence was that she saw much of Ms Selvi’s report as advocacy for Ms Watts. Her evidence also was that, in substance, she thought Ms Selvi was being too optimistic, the work restrictions were not indicative of the reported treatment history and could not be relied upon.
191 At [127]-[133] I make findings about Ms Scott-Brown’s attitude to Ms Watts. Those attitudes seem to have affected Ms Scott-Brown’s approach to Ms Selvi as well. I find that Ms Scott-Brown’s attitude was unreasonably skewed because of Ms Watts’ somewhat confrontational style, and her insistence on process and questioning. This led Ms Scott-Brown to form a view Ms Watts was not genuinely cooperating with Australia Post, and was, in effect, malingering. A person in Ms Scott-Brown’s position who was less sceptical and was acting more dispassionately would, in my opinion, have been able to work with what was in Ms Selvi’s two reports and, with Ms Selvi if need be, to accommodate Ms Watts returning from leave to her position at Australia Post.
192 The evidence reveals that, initially unbeknown to Ms Watts and Mr Gorman, in early 2011 Australia Post itself decided to undertake what it called a “reasonable adjustments assessment”. The purpose of this assessment, in Ms Scott-Brown’s words, was to “ascertain whether it could accommodate the restrictions Ms Selvi prescribed”.
193 The assessment consisted of a table setting out the “work practice requirement” for the position of bid consultant AO6, parts of Ms Selvi’s report identified in the Australia Post document as “restrictions”, what kind of adjustment the author of the document considered might be required because of the restriction and, finally, a column headed “impact”. The document contained conclusions about whether each restriction could be accommodated. Relevant employees within Australia Post met to discuss the restrictions, and the ultimate conclusion was that the restrictions could not be accommodated. In substance, Australia Post’s view was that the restrictions were not compatible with the requirements of a bid consultant, which was a high-pressure position working to deadlines in a team environment. The clear import from Ms Selvi’s report that the restrictions were likely to be needed only for three months did not feature strongly in the evidence or the document, although Mr Psarologos made some concessions in his evidence that “in hindsight” some of the restrictions which Australia Post concluded at the time could not be accommodated could have been accommodated for the limited period of time required.
194 Ms Watts’ evidence, which was uncontradicted, was that she was not given any opportunity to comment on the assessment, to make suggestions to Mr Psarologos about how the restrictions might be accommodated, or otherwise to have any input into that assessment. Nor, it seems, was Ms Selvi herself consulted.
195 As Mr Psarologos’ own evidence recognises, the consideration by Australia Post of this assessment was being undertaken in the context of Ms Watts having lodged a complaint about her treatment with the Australian Human Rights Commission.
196 It appears that Australia Post considered this assessment concluded by approximately 17 March 2011, adversely to Ms Watts returning to work on the basis of Ms Selvi’s reports and Dr Congiu’s opinion. Ms Scott-Brown’s effective responsibility for managing Ms Watts’ absences and return to work ceased around the end of April 2011 and, in September 2011, Ms Garrad took over.
197 Considering that it needed further medical advice in order to manage Ms Watts’ return to work, Australia Post persisted in attempting to persuade Ms Watts to see Dr Hollander. However, on 21 April 2011 Ms Watts refused, in writing, to see him. She gave her reasons as “I have already provided ample medical information to Australia Post to allow for the development of a return to work program that will accommodate my medical restrictions”.
198 Ms Garrad’s evidence was that, having taken over responsibility for managing Ms Watts’ return to work process in September 2011, she saw this as an impasse, and that the “situation clearly could not indefinitely continue as it was”. She decided it was necessary for Ms Watts to be independently assessed and, on 13 October 2011, Australia Post sent Ms Watts a letter containing a formal direction that she attend for an examination with Dr Hollander. The evidence does not satisfactorily explain what had occurred between April and October 2011. It is unclear who, if anyone, with Australia Post’s Human Resources team was managing Ms Watts’ situation. Regardless, an obvious inference, which I draw, is that Ms Watts adhered to her refusal to see Dr Hollander throughout this period. Australia Post’s letter made it clear to Ms Watts that non-compliance would result in action under Australia Post’s disciplinary procedures, and could ultimately lead to her dismissal. Ms Watts was given until 26 October 2011 to confirm she would abide by the direction and attend for examination. Shortly before that deadline, Australia Post wrote to Ms Watts confirming the earliest appointment with Dr Hollander was 12 December 2011 and, given that was some time away, proposing two other alternatives (both involving an Australia Post-nominated doctor and contact with Ms Selvi) as ways Australia Post might obtain what it considered was better information about how Ms Watts might return to work with restrictions. The evidence does not disclose any response by Ms Watts to this alternative proposal, although there was a response on her behalf by the union, disputing the lawfulness of Australia Post’s direction. This exchange is another example of Ms Watts’ lack of cooperation by this stage.
199 Debate between Australia Post and the union on Ms Watts’ behalf continued, the latter maintaining the direction Australia Post had given was unlawful. The deadline for Ms Watts’ confirmation passed without compliance from her. It must be recalled all this was now occurring in the context of an existing complaint by Ms Watts to the Commission. In writing, and formally, Australia Post gave Ms Watts one more opportunity to comply with the direction it had given her, extending the deadline to 4 November 2011.
200 Trenchant positions, which it is not necessary to recite in detail, continued through correspondence. However, an example of the level of both resistance, and insistence, coming from Ms Watts can be gleaned from this piece of correspondence, dated 29 November 2011, from Ms Watts to Australia Post over whether, having extended the deadline for confirming she would agree to be examined by Dr Hollander on 12 December 2011, Ms Watts would meet the new deadline:
Unfortunately, I am unable to provide a response by the date you have proposed, as I need to consult with Ms Khatab, Legal Officer at the CWU, regarding Australia Post’s most recent response on this matter.
I was advised by Mr Gorman today that Ms Khatab is interstate on a business matter for the entire week. Mr Gorman will be contacting you via phone to explain the situation and also request an extension to your imposed deadline.
As Ms Khatab will most likely be responding on my behalf, I am requesting an extension to your proposed deadline until Friday 9 December 2011 to allow sufficient time for Ms Khatab to meet with me, discuss the situation and formulate a response to Australia Post.
As you will appreciate, the situation is beyond my control. Any inconvenience caused is regrettable. If the scheduled appointment with Dr Hollander needs to be rescheduled to avoid any inconvenience, please do so and advise of new details.
201 By this stage, proceedings had been issued in this Court. Correspondence continued over the last part of 2011 about whether Ms Watts would consent to being examined by Dr Hollander, whether Australia Post’s direction was lawful, whether Ms Watts was fit to return to work, and so on. The correspondence was now between the parties’ legal representatives in the first Federal Court proceeding, and in the context of Australia Post initiating a disciplinary inquiry because of what it said was Ms Watts’ non-compliance with a lawful direction. Then, after more correspondence, on 8 February 2012 Ms Watts’ legal representative informed Australia Post’s legal representative that Ms Watts would attend an assessment with Dr Hollander, and on 14 February 2012 Ms Watts consented in writing to attend this assessment. That was one year and four months after Australia Post first asked Ms Watts to attend such an assessment.
202 On 23 April 2012, Ms Watts finally attended an examination with Dr Hollander. Within a few days of the examination, Dr Hollander finalised his report and sent it to Australia Post. He found her to be suffering from a psychiatric illness of an adjustment disorder with mixed anxiety and depressed mood that was in partial remission at the date of his report. His report accepted Ms Watts’ account of her previous symptoms and their severity, but his opinion was that Ms Watts’ symptoms had resolved to a degree such that they were no longer impacting upon her work capacity in the way they previously had. He emphasised that, for her symptoms to remain in remission, her return to work needed to be organised in a graduated manner, optimally with the restrictions he then recommended.
203 Those restrictions as set out in his report were:
1. A graduated return to work is implemented,
(a) According to the following schedule:
two months working at 0.5 of fulltime hours, distributed over five days per week
followed by a further two months of working at 0.75 normal fulltime hours
then resuming fulltime hours
(b) And with the following restrictions:
That Ms Watts receive the relevant and appropriate degree of retraining/ upskilling for her role, given the now extended period of time off work.
That during this period of gradual return to work, Ms Watts be granted a reduced volume of work proportional to the degree of her reduced hours.
That during the graduated return to work program, she be provided with some level of increased support for her to consult with an advisor or supervisor should she run into difficulties regaining some of the necessary knowledge or skills required for her role.
Providing Ms Watts extra breaks as needed to practice anxiety management strategies should she experience re-emerging symptoms of anxiety in the workplace. The need for such breaks is estimated to be of 10 to 15 minutes of duration up to two to three times per day (if increased frequency or duration of breaks is needed, then this would be an indication that further reassessment of her Fitness for Duty is indicated at that time).
That during this graduated return to work, that Ms Watts is not to report directly to her previous manager, Ms Marshall, as her supervisor or manager (although other forms of contact with Ms Marshall are not necessarily contraindicated).
If Ms Watts is required to eventually resume a direct reporting relationship to Ms Marshall in the future, that a mediation process between Ms Watts and Ms Marshall be undertaken either prior to Ms Watts’ return to work or during this graduated return to work process.
204 Dr Hollander’s ultimate conclusion was that Ms Watts was capable of performing the inherent requirements of her position, AO6 bid consultant, with the restriction of a graduated return to work as he had described in his report, and the specific restrictions he had identified. His opinion was that the restrictions would be required for four months. His psychiatric prognosis for Ms Watts was positive, however his prognosis about her occupational functioning was more moderate: his opinion was that prognosis depended on motivational factors, negotiation of outstanding issues between her and Australia Post and whether the contrasting views of what restrictions were necessary (and how they might be accommodated) could be resolved between Australia Post and Ms Watts.
205 On 21 May 2012, Australia Post informed Ms Watts’ legal representatives of the receipt of Dr Hollander’s report and provided a summary of his conclusions and recommendations. It told her legal representatives that Australia Post agreed to the restrictions, save for two matters, which it described in the following terms:
1. Ms Watts will be required to report to Madeleine Marshall at the conclusion of the four month graduated return to work period given Ms Marshall is the Bid Manager for the Victorian and Tasmanian Bid Management team. We note that Dr Hollander has concluded that providing the graduated return to work plan is implemented, Ms Watts’ condition is not of a severity that would preclude this reporting relationship.
2. Given Ms Watts and Ms Marshall will be working within the same team when Ms Watts returns to work, we propose that the mediation between Ms Marshall and Ms Watts occur prior to Ms Watts’ return to work.
206 Continuing the pattern that had been set to that point, further correspondence ensued after the 21 May letter about Ms Watts’ return to work date, and there was a focus by Australia Post on whether or not a mediation between her and Ms Marshall should or could be scheduled and, if so, when. Ultimately, Ms Marshall expressed a strong desire not to attend such a mediation. Mr Mark LeBusque, Australia Post’s Director of Solution Sales to whom the Bid Management team ultimately reported, did not wish to insist and, therefore, no mediation between them occurred. Ultimately, Ms Watts did not in fact report to Ms Marshall on her return to work.
207 The last important piece of correspondence, for the purpose of determining the legal issues in this proceeding, is Australia Post’s letter to Ms Watts’ legal representatives, dated 18 June 2012. In this letter, Australia Post sets out the adjustments it proposes to make to allow Ms Watts to return to work in her position as a bid consultant. They were stated to be:
a) A graduated return to work, as follows:
i. Two months of working 0.5 of full time hours, distributed over five days per week;
ii. A further period of two months of working 0.75 of full time hours, distributed over five days per week; and
iii. Returning to full time hours at the conclusion of the four month period.
b) Ms Watts will be granted a reduced volume of work to match her reduced hours.
c) Increased support will be provided to Ms Watts to allow her to consult with an advisor or supervisor should she run into difficulties regaining some of the necessary knowledge or skills required for her role. Mr LeBusque, Mr Psarologos and Ms Garrad will be available to provide this support during Ms Watts’ graduated return to work.
d) Australia Post will provide Ms Watts with the opportunity to take breaks of between 10 to 15 minutes up to two to three times a day, to practice anxiety management strategies should she experience re-emerging symptoms of anxiety. Consistent with Dr Hollander’s recommendation, if the frequency or duration of these breaks increases, we may require a further medical advice, including a Fitness for Duty assessment.
e) During the four month graduated return to work period, Ms Watts will not report to Ms Marshall, and instead will report directly to Mr Psarologos, with support available from Mr Le Busque. At the conclusion of the graduated return to work period, Ms Watts will be required to report directly to Ms Marshall. During the graduated return to work period, Ms Watts will be required to work with Ms Marshall and will have regular interactions with Ms Madeleine on a day to day basis.
Australia Post encourages Ms Watts to implement the other recommendations reached by Dr Hollander, as follows:
a) Continue to attend her GP on a regular basis for ongoing monitoring;
b) Participate in ongoing monitoring of clinical risk assessment by all her treating doctors;
c) Continue with ongoing psychological therapy; and
d) Ms Watts and her doctor and psychologist consider developing a written and specific relapse prevention plan.
Consistent with Dr Hollander’s recommendations, Australia Post will monitor Ms Watts return to work and will complete a three month review to assess Ms Watts graduated return to work progress. Should Australia Post have concerns regarding a potential re-emergence of Ms Watts’ depressive/anxiety symptoms, Australia Post will seek further medical advice, which may include a further Fitness for Duty assessment.
208 These adjustments have the same characteristics as the ones Ms Watts was working under with Mr Schell — reduced hours, smaller volume of work, increased support, breaks as she needed them. The time frame for her full assumption of the duties of bid consultant was four months, with a three-month review. That is longer than the time frame set by Ms Selvi. The adjustments also have the same characteristics as those Ms Selvi recommended. As it turned out, Ms Watts did not report to Ms Marshall as this letter contemplated. That seems to have been as much a preference of Ms Marshall as Ms Watts and it is a good example of how adjustments to deal with psychiatric, psychological and attending interpersonal difficulties cannot be set in stone.
209 Ms Watts returned to work at Australia Post on 30 July 2012.
The AAT decision and Australia Post’s non-work related medical restrictions policy
210 Before leaving my findings on the course of events as disclosed by the evidence, it is necessary to address what I identify elsewhere as an error by Ms Scott-Brown, and Australia Post generally, which in my opinion has contributed to the tortured circumstances that evolved from 2010 to 2012. That error concerns the effect of the AAT decision and the (non) applicability of Australia Post’s non-work related medical restrictions policy to Ms Watts’ circumstances.
211 In evidence in this proceeding was the decision made by consent by the AAT under s 42C of the AAT Act, effecting the settlement between Ms Watts and Australia Post of her claims under the SRC Act.
212 The relevant parts of the AAT decision are as follows:
In accordance with s 42C(2) of the AAT Act, the Tribunal sets aside the reviewable decision of 10 October 2008 and in substitution decides that:
1. The Applicant sustained an injury, identified as an adjustment disorder to which employment with Australia Post contributed to a significant degree and which entitles her to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act);
2. The Respondent shall pay:
a) weekly payments of compensation in respect of incapacity for work from 11 April 2008 to 31 March 2009 (both dates inclusive) pursuant to s 19 of the SRC Act. The Applicant is not entitled to s 19 payments after 31 March 2009 on the basis that the compensable condition did not result in incapacity for work; and
b) reimbursement of medical and related expenses incurred in the period of 11 April 2008 to 1 December 2009 pursuant to s 16 of the SRC Act subject to the production of a valid Medicare Australia Notice of Charge, accounts and receipts in respect of the condition not to exceed $758.68 over and above the Medicare Charge; and
3. at 2 December 2009 all pathophysiological effects of the adjustment disorder ceased and the Applicant is not entitled to compensation pursuant to ss 16 or 19 of the SRC Act.
213 The effect of this decision is that Australia Post recognised its liability generally under s 14 of the SRC Act, but the parties then agreed to limits on Australia Post’s liability to pay various kinds of compensation for that injury. Section 16 of the SRC Act deals with compensation in relation to medical expenses, and s 19 deals with compensation for loss of income. Accordingly, the effect of paragraph 3 of the AAT decision is to fix an end point — 2 December 2009 — for the payment by Australia Post of compensation for Ms Watts’ medical expenses and any loss of income under the SRC Act. Contrary to the impression Ms Scott-Brown seemed to have had, and Australia Post’s submissions sometimes contended for, the effect of this decision was not to transform Ms Watts’ psychological condition from a work-related one to a non-work related one. The decision could not have had that effect: the nature and cause of Ms Watts’ injury was, and is, a question of fact. Obviously, nor could the orders rid Ms Watts, in fact, of her illness. The highest the rather too broadly expressed statement in paragraph 3 can be read is that the explanation for the agreement to cease s 19 loss of income payments is that Ms Watts was fit to return to work. Indeed, as the evidence in this case demonstrates, she was already back at work. If Australia Post agreed, by these orders, that Ms Watts was fit to return to work and no longer needed compensation under s 19, then it is even more curious that less than two months later it was asserting that she could not be in the workplace without new and significantly detailed medical information.
214 Nevertheless, somehow Ms Scott-Brown reached the view that the non-work related medical restrictions policy should be applied to Ms Watts. It is therefore necessary to examine the terms of that policy.
215 The “Management Overview” of Australia Post’s non-work related medical restrictions policy relevantly stated:
Where an illness or injury is non-work related, management has the responsibility to ensure the employee is given the opportunity to upgrade to full duties, wherever possible, within a ‘reasonable’ time. Australia Post therefore allows such employees to perform restricted duties for a maximum period of three (3) months where medical information supports the appropriateness of such duties and the employee’s restrictions can be accommodated at his or her workplace.
If the employee’s inability to perform his or her job because of his or her disability can be overcome through the provision of assistance in the form of ‘services’ or some form of physical adjustment to workplace equipment or facilities and the provision of that assistance is ‘reasonable’, Australia Post has an obligation to make that adjustment(s). This is known as ‘reasonable adjustment’.
If, the employee is unable to perform the ‘inherent requirements’ of his or her nominal position within the time-frame allowed under the policy, even with ‘reasonable adjustment’, management will consider redeployment options and if unsuccessful, retire the employee after a continuous absence on sick leave of up to 78 weeks including up to 52 weeks of continuous paid sick leave, depending on the employee’s credit.
(Emphasis in original.)
216 It can be seen that there is significant disconformity between the summary of how the policy is intended to operate and the operation of the DDA, as I have described it at [12]-[68] above. Most critically, the policy assumes the concept of reasonable adjustments in the DDA operates on the basis of reasonableness, when it does not. The policy also assumes limits on an employer’s obligation to make reasonable adjustments which are not confined to unjustifiable hardship, nor to the more limited operation of the s 21A inherent requirements exception.
217 The policy is divided into two parts: one dealing with “provision of restricted duties” and another dealing with “reasonable adjustments”. The first part concentrates on a situation where a worker’s duties need to be altered for a temporary period, and during that period the worker may not be performing what the policy identifies as the “inherent requirements” of the worker’s position. The policy sets out criteria to be considered before restricted duties can be provided. Two of those criteria clearly became uppermost in the attitude of Australia Post, and Ms Scott-Brown and Ms Garrad in particular:
a. The nature of the condition and medical prognosis indicates a high potential the employee will be able to perform the ‘inherent requirements’ of his or her nominal position, within a ‘reasonable timeframe’;
b. A ‘reasonable’ duration for the provision of restricted duties, is to be established by the workplace manager based on the nature and prognosis of the employe’'s medical condition. However, the maximum duration for the provision of restricted duties is three (3) months;
(Emphasis in original.)
218 The next part of the policy — “reasonable adjustment” — is expressed to apply only where a “manager is still unable to provide restricted duties after taking into consideration the employee’s suggestions”. The policy states:
5.1 Employee involvement in the consideration of ‘reasonable adjustment’
If a manager is still unable to provide restricted duties after taking into consideration the employee’s suggestions, consideration must at that same meeting with the employee be given to assessing the employee’s restrictions against the principles of ‘reasonable adjustment’. The employee is to be requested to suggest the ‘reasonable adjustment’(s) he or she believes would assist him or her in being able to perform the ‘inherent requirements’ of his or her position. The employee must be advised that he or she may have a representative, who may be a union representative, present as a support during the discussion.
5.2 What is ‘reasonable adjustment’?
‘Reasonable adjustment’ does not require an employer to alter the nature or the ‘inherent requirements’ of the employee’s job, to assign the performance of some inherent requirements of an employee’s job to another employee or to create a different job. Rather it is a question of overcoming an employee’s inability, by reason of disability, to perform his or her job through the provision of assistance in the form of “services” or some form of physical adjustment to workplace equipment or facilities which provision is considered to be reasonable.
219 The policy then goes on to set out what should happen if neither restricted duties nor reasonable adjustments are available: namely, a direction onto sick leave. The policy also contemplates such a direction if the medical information provided by the employee is “unclear or does not contain all the required information”. There is no doubt that Australia Post took steps it believed were consistent with this policy; that, however, says nothing about its compliance or non-compliance with the DDA.
220 The language of the policy indicates it is intended to apply across Australia Post’s workforce. There is a great variation in the nature of employment across Australia Post’s workforce. A “one size fits all” policy, while providing some guidance in a general way, could never seek to replace consideration of individual circumstances and needs. As this case so amply demonstrates, inflexible insistence on compliance with a policy, rather than an individualised consideration of circumstances, can be counterproductive in terms of meeting the requirements of the DDA.
221 When Ms Scott-Brown wrote to Ms Watts to inform her that she had decided to apply this policy to Ms Watts, she asserted that “your restrictions are no longer regarded as work related (statutory)”. Again, that misrepresents the terms of the AAT decision, which says nothing about restricted duties, but only about liability to pay compensation for loss of income and for medical expenses. Having then stated that Australia Post required further information “as to exactly what restrictions apply and how long these will be needed”, Ms Scott-Brown made the following rather negative conclusion to the letter:
Under the terms of the policy, if your medical evidence is not satisfactory and/or your workplace cannot accommodate your restrictions, you may be directed to remain on sick leave and asked to provide ongoing medical advice. However, before this occurs, you would be offered the opportunity to discuss the inability to readily provide restricted duties and your manager will consider any reasonable suggestions you may have in this regard.
Again, the disconformities with the operation of the DDA are obvious.
222 There was no basis in fact to consider that the policy should have been applied to Ms Watts. As she responded to Ms Scott-Brown shortly after this letter:
My injury is not a new injury. It is the same injury that relates to my worker’s compensation claim and the decision made at the Administrative Appeals Tribunal. The circumstances of my injury and any restrictions that apply have not changed in any way. Subsequently, Australia Post is fully aware of all the details of my injury, including prognosis and restrictions. Furthermore, Australia Post is possession of all related documents from my General Practitioner and Psychologist.…
As suitable employment tasks have been found by Australia Post to currently accommodate and assist in the gradual recovery and rehabilitation, there is no requirement to repeat this task. There is a clear understanding between Cathy Dillon, Chris Schell and myself that there is sufficient work and suitable tasks to meet the restrictions that apply to my injury currently and in the future.
223 Ms Watts was correct. In terms of the language of the DDA, Australia Post was making reasonable adjustments for Ms Watts in the period leading up to the direction of Ms Watts onto leave.
224 Ms Scott-Brown replied to this in the following terms:
I understand your assertion that your injury is not new and that it is a continuing injury resulting from events that occurred at your workplace some time ago. However, I also understand that at your recent Tribunal Hearing, you were denied further compensation on the basis that the cause of your medical issues are no longer be attributed to the initial work injury. While you have described an ongoing health issue, this was not considered by the Tribunal to be a direct result of the previous compensation claim. This was the decision of the Tribunal member as a result of their deliberations.
The result of this is that Australia Post has no further obligation to treat your matter as a compensable injury and we are required to address your inability to return to full work capacity under the non work related medical condition policy.
225 In my opinion, this sequence of events reveals a fundamental misunderstanding by Ms Scott-Brown, perpetuated by Ms Garrad and by Australia Post generally, as to the nature of the AAT decision, and the position of Ms Watts after that decision. It led to the entirely artificial characterisation by Ms Scott-Brown of Ms Watts as having a new and different “injury”, with a new and different cause. It was that psychological condition which Ms Scott-Brown then relied on as the reason that Ms Watts had to be managed under the policy and, applying the policy, had to be directed onto sick leave when she did not provide medical information satisfactory to Australia Post.
CONCLUSIONS ON APPLICANT’S FIRST CONTENTIONS
226 In this part of my reasons, I set out my conclusions on Ms Watts’ first contention, and on issues which are common to all her contentions.
Ms Watts had a “disability” for the purposes of the Disability Discrimination Act
227 I find Ms Watts had a disability: namely, her disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour, within the meaning of s 4(1) of the DDA. At all material times, Ms Watts suffered from such an illness, although it was diagnosed differently at different times. In 2008, Ms Selvi diagnosed her with three separate conditions:
1. Acute Stress Disorder, (Code: 308.3) as described in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV).
2. Generalized Anxiety Disorder, (Code: 300.02) ) as described in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV). and
3. Insomnia – Related to Anxiety Disorder, (Code: 307.42) ) as described in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV).
228 By the time Dr Hollander examined her in April 2012, he diagnosed only one condition: adjustment disorder with mixed anxiety and depressed mood that was in partial remission. However, I am satisfied that at all material times Ms Watts had a psychological condition which was a disability within the meaning of s 4(1) of the DDA. Australia Post did not contend otherwise. Contrary to the way in which Ms Scott-Brown seems to have approached Ms Watts’ situation, there was no change in the nature of Ms Watts’ illness before, during or after the resolution of the AAT proceedings. At all relevant times covered by the allegations in this proceeding, a key component was Ms Watts suffered from adjustment and anxiety disorders. Her injury or illness remained one which had been caused by the events in her workplace involving Ms Marshall and the Tomorrow’s Leaders Program selection and feedback process in 2008. Her illness had resolved to a significant extent by the end of 2009 such that she was back at work, with restrictions. There was, therefore, no change in the nature of her disability for the purposes of the DDA either.
There were reasonable adjustments available for Ms Watts
229 This conclusion applies to all three of the applicant’s contentions. In my opinion, matters such as limited working hours which gradually increased, alterations to supervision arrangements, modifications to face to face meeting requirements, amelioration of deadlines being too tight, changes in the kind of work being performed, minimising conflict situations, avoiding the need to lead teams, where all those matters are envisaged as necessary for a limited period of time of approximately three months, are adjustments which could have been made for Ms Watts without imposing unjustifiable hardship on Australia Post.
230 The adjustments in issue in this case were never of the kind or quality that imposed an unjustifiable hardship on Australia Post: not only was that argument disavowed by Australia Post in this proceeding, but there also was no evidence to support such an argument in any event. Thus, for the purposes of s 5(2), the kinds of restrictions under which Ms Watts was working in January 2010 with Mr Schell were reasonable adjustments for Ms Watts. The kinds of restrictions proposed by Dr Congiu and Ms Selvi were reasonable adjustments for Ms Watts. The kinds of restrictions proposed by Dr Hollander were reasonable adjustments for Ms Watts. I do not consider there to be any disqualifying vagueness about the nature of the adjustments proposed for Ms Watts by Dr Congiu and Ms Selvi, as Australia Post sought to contend. Nor was there any apparent disqualifying vagueness or uncertainty about the modification Ms Watts was working with during her time with Mr Schell. It is likely to frustrate the operation and purpose of s 5(2) in circumstances of people with psychological conditions if the word “adjustment” in the term “reasonable adjustment” was found to require too much precision. In any event, I find no material difference in terms of the level of precision between a restriction expressed by Ms Selvi as “avoid tasks assigned simultaneously” and a restriction expressed by Dr Hollander as “a reduced volume of work proportional to her reduced working hours”. Of their nature, adjustments in the workplace for employees with psychological conditions or other disorders within the definition set out in s 4(1) of the DDA will need to be flexibly and generally expressed.
231 However, I do not accept the applicant’s contention that a return to work plan, of itself, falls within the concept of a reasonable adjustment for the purposes of s 5(2). The respondent is correct to submit it is too removed from the work to be performed. The adjustment must be “for” the person, so the person can perform work. While an adjustment can be generally described (perhaps more so when dealing with a psychological injury), it must in my opinion be a nominated alteration or modification to a matter related to the work the person is employed or contracted to perform.
Whether section 5(2) imposes a duty
232 I accept that as a matter of construction the language of s 5(2) suggests a positive obligation on a discriminator. That is what language of a failure or an omission would ordinarily suggest. Section 5(2) is concerned with a state of fact: namely, whether certain things were not done, why they were not done and what the result was. Inquiring whether a discriminator did not make reasonable adjustments fastens on an omission by the discriminator to do something, or a proposal not to do something. Using the concept of omission does suggest a positive duty to do something.
233 Thus, if the circumstances concern events in the past, s 5(2) requires the Court to determine, as a matter of fact, whether the discriminator did not make reasonable adjustments for the person. Alternatively, if the circumstances concern events yet to take place or an ongoing situation, s 5(2) requires the Court to determine whether the discriminator proposes not to make reasonable adjustments for the person. Sitting behind each of those may be the premise that the discriminator was obliged to make adjustments unless they imposed unjustifiable hardship. However, the assessment of whether there is discrimination will focus on what was, in fact, done or not done, rather than on any “duty”.
Australia Post failed to make reasonable adjustments for Ms Watts
234 The facts in this proceeding concern an ongoing employment situation and conceivably could involve both limbs of s 5(2)(a). Ms Watts’ evidence, which was not contradicted, was that by the time she took annual leave at the end of the year in December 2009 she was working successfully with Mr Schell and had almost achieved a return to full-time hours of 7.35 hours per day, in that she was working 6 hours per day, was working autonomously and with limited direction. It appears to be common ground she was performing this work at a level of AO4 or thereabouts.
235 She returned to work on 18 January 2010, reporting again to Mr Schell. It appears that during the early part of 2010 Ms Watts continued to work for Mr Schell, under the same kind of restrictions she had in late 2009. It was in early 2010 that Ms Scott-Brown decided to apply the policy to Ms Watts, but the evidence is that she remained at work until 18 May 2010, when Ms Scott-Brown first directed her to take leave. It appears on the evidence that, from 18 May 2010, Ms Watts was absent from the workplace, until her unscheduled and uninvited return on 22 June 2010 for a week or so. Another direction to take leave was made on 29 June 2010 and from this point Ms Watts remained away from her workplace until 31 July 2012.
236 Given that Ms Watts’ own evidence was that she was working successfully and well with Mr Schell, I find there was no failure by Australia Post to make reasonable adjustments for her until she was directed to take sick leave. Although from early February there was debate about the application of the policy to her, the evidence is or suggests that Ms Watts continued to work for Mr Schell under existing restrictions until she was directed on to sick leave. From 18 May, Ms Watts was absent from the workplace involuntarily. Initially she was absent using her own annual leave entitlements. From 29 June 2010 she was directed onto sick leave. Her return to work for one week in late June was without agreement from Australia Post. I find on and from 18 May 2010 when Australia Post directed that Ms Watts to remain away from her workplace, Australia Post did not make reasonable adjustments for Ms Watts.
237 Ms Watts remained on a variety of forms of leave, and subsequently when her leave ran out, took leave without pay, until her return to work on 30 July 2012. By a letter dated 21 May 2012, Australia Post effectively accepted Dr Hollander’s recommendations and proposed that Ms Watts return to her position as a bid consultant under the arrangements Dr Hollander had identified. In substance, as I find at [208], there was no real difference between what Dr Hollander was recommending, the arrangements which had been in place for Ms Watts while she was working with Mr Schell under restrictions Australia Post identified at least to some extent through information from Dr Saranathan and Ms Selvi, and the arrangements proposed by Ms Selvi in her first and second reports. Throughout this whole period the modifications for Ms Watts were reduced working hours, less complex work, greater supervision and support and reduced volume of work. The content and progression of these modifications would inevitably vary; however, their character did not change.
238 Accordingly, I find for that period between 18 May 2010 when she was directed by Ms Scott-Brown to go on sick leave, and 21 May 2012 when Australia Post accepted she could return to work under arrangements identified by Dr Hollander, Australia Post did not make reasonable adjustments for Ms Watts.
239 I reject the respondent’s submission that, because during this entire period there was evidence of Australia Post seeking medical information, and seeking to apply the terms of the policy to Ms Watts, this constituted Australia Post “proposing to make reasonable adjustments” for Ms Watts throughout the entire period. First, as a matter of construction as I have outlined at [28]-[34] above, that is not in my opinion the operation of this limb of s 5(2)(a). That limb is directed to three kinds of circumstances. First, circumstances where the aggrieved person does not yet in fact require reasonable adjustments, but the alleged discriminator has foreshadowed that, when and if they are required, they will not be made. Second, this limb may apply to a situation of continuing discrimination and could apply if, for example, Ms Watts had not returned to work in July 2012 and remained on leave at the time of determination of this proceeding. However that is not the case: her claim concerns past events only. Third — and relevantly to the third way the applicant puts her claim — s 5(2)(a) must be construed in a way that recognises its operation in a range of practical circumstances. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but where consideration and implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator “proposes not to make” reasonable adjustments. That is why it is correct to describe the position of Australia Post, after 21 May 2012, as “proposing to make” reasonable adjustments for Ms Watts. However, before any acceptance by Australia Post of the task of making those adjustments, it is correct to say it was not “proposing to make” those adjustments.
240 Second, the question posed by the statute is expressed in the negative: did Australia Post propose not to make reasonable adjustments for Ms Watts? Even if I am wrong about the construction of this limb of s 5(2)(a) and it does apply to these facts, I am satisfied that, during the period 18 May 2010 to approximately 21 May 2012 (when the evidence suggests Australia Post formed a view Ms Watts could return to work under the restrictions recommended by Dr Hollander) Australia Post proposed not to make reasonable adjustments for Ms Watts. Whether or not it was searching in good faith for some accommodation acceptable from its perspective is not the question posed by the statute, because of the expansive definition of “reasonable adjustments”. The question is whether it proposed to make the kind of modifications and alterations I have described in [21]-[27] above. On the evidence it plainly did not, and indeed positively refused to at various stages throughout that period.
The requirements of section 5(2)(b) are met for some of the period contended for
241 Section 5(2)(b) proceeds, as the applicant submitted, on the premise that there has been a failure to make reasonable adjustments for a person, or there has been a proposal not to make reasonable adjustments for a person. In other words, it proceeds on the premise that s 5(2)(a) has been made out. It then requires an inquiry into the effect of there being no reasonable adjustments for the aggrieved person. It directs attention to the substantive outcome of a failure to accommodate a person’s disability. Although the provision still requires a comparison to be undertaken to identify discrimination, the context in which the statute places that comparison is quite different to s 5(1). Both parties’ submissions concentrated on an analysis which tended to obscure rather than emphasise the differences between s 5(1) and s 5(2).
242 It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis 217 CLR 92; [2003] HCA 62 at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment” and “because of the disability” in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not.
243 That is why the circumstances with which the comparator is invested are so critical. The 2009 amendments did not purport to modify the language used in s 5(1) (which was the subject of the decision in Purvis) to describe the comparison required. The same language is repeated in s 5(2)(b). Yet the task is quite different. Section 5(2)(b) expressly addresses, in my opinion, the finding of the plurality in Purvis 217 CLR 92; [2003] HCA 62 at [230] that the comparison must identify “all the effects and consequences of disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?”
244 The distinction between the majority and minority judgments in Purvis 217 CLR 92; [2003] HCA 62 was the result of a fundamental disagreement in construction concerning s 5(1) of the DDA, and whether it was intended to include in the “same or similar circumstances” manifestations of a person’s disability, such as uncontrollable and violent behaviour. Both the plurality and the Chief Justice held that it was so intended. The plurality explained this by emphasising that the DDA as it then stood was concerned with equality of treatment, not equality of outcome. They said (at [201]):
Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that.
245 As the plurality also pointed out (at [202]), substantive equality directs attention to equality of outcome and begins from the premise that “in order to treat some persons equally, we must treat them differently”: Regents of University of California v Bakke (1978) 438 US 265 at 407 per Blackmun J.
246 The subject matter of s 5(2) is substantive equality. Its focus is on the effect or outcome of not accommodating the needs of a disabled person, or, to use the language of Blackmun J, the effect or outcome of not treating them differently. As the plurality in Purvis foreshadowed, when that is the task, a different comparison is required from that in s 5(1). That is emphasised by the presence of s 5(3).
247 Was the effect of Australia Post failing to make the adjustments I have described in [230]-[237] above that Ms Watts was treated less favourably than another Australia Post employee without her disability would have been treated in those circumstances? In my opinion that question requires an affirmative answer, for some of the contested period.
248 I find that the “treatment” for the purposes of s 5(2)(b) should be identified as the direction or insistence by Australia Post that Ms Watts remain away from work and use up her leave, then take leave without pay, until medical information satisfactory to Australia Post was provided to it. If the adjustments had been made, Ms Watts would have remained at work in a modified role, with her hours adjusted if need be between full time and something less than full time, and with some restrictions around how she was able to deal with workplace issues she found stressful, or with workload pressures. That is what eventually occurred in fact. Therefore, the effect of Australia Post failing to make those adjustments was that Ms Watts had to remain away from work and use up her leave, and take leave without pay until she could provide medical evidence satisfactory to Australia Post.
249 Was that effect or outcome to treat Ms Watts less favourably than a person without her disability would have been treated in circumstances that were not materially different?
250 In the circumstances of this case then, the comparator must be a person without a psychological condition of the kind suffered by Ms Watts. There is no reason in principle why an appropriate comparator in a given case might not be a person with a different disability. There may well be circumstances where the absence of reasonable adjustments means people with certain kinds of disabilities are treated less favourably than persons with other kinds of disabilities: it would not advance the purpose of the legislation for such circumstances to be outside the protection otherwise contemplated by the DDA. Indeed the Full Court of this Court has recently dealt with allegations of disability discrimination precisely on the basis of a comparison between people with different disabilities: see Nojin v Commonwealth (2012) 208 FCR 1; [2012] FCAFC 192 at [126]-[127] per Buchanan J, at [242] per Katzmann J. Although the respondent relied on remarks from Gilmour J in Gaffney [2013] FCA 661 at [137] to support the proposition that the comparator should have no disability, it does not appear from his Honour’s reasons that there was any argument put to his Honour on this point in a way which may be necessary in this case.
251 One of the difficulties with the comparators suggested by both parties, and indeed many of the arguments on other aspects of unlawful discrimination by both parties, is they ignore what I consider to be a critical fact: namely, that Ms Watts was not away from the workplace when what in my opinion was the act of discrimination occurred. She was in the workplace, performing alternative and modified duties for Mr Schell. This is not, in my opinion, a “return to work” case at all. It is about a return to an employee’s contracted position.
252 In my opinion, for the circumstances here to be “not materially different”, as s 5(2)(b) requires, the (hypothetical) comparator Australia Post employee must be in the circumstances facing Ms Watts in approximately February 2010. That is, she was at work, performing modified or restricted duties in another part of Australia Post’s business, performing well and to her supervisor’s satisfaction. She was not in her contracted role as bid manager, and had not been for some time. In order for the circumstances to be “not materially different”, the comparator must, in my opinion, be performing modified or restricted duties because of an injury found to be work related. Like Ms Watts, the comparator will have a long and good performance record with Australia Post and will be willing to return to her position as bid manager. Like Ms Watts, there will be no evidence to suggest that the comparator will ultimately be unable to return to her position as bid manager.
253 Where there was no apparent difficulty with the employee continuing (at least for some period) in the modified or restricted duties, and no suggestion the person would ultimately be unable to return to her position as bid manager, would Australia Post have required such an employee instead to provide further medical information setting out whether and how that employee could return, substantively straight away, to the full-time position as bid manager for which she was employed? That is, effectively, what Ms Scott-Brown required of Ms Watts in and from February 2010. Would Australia Post have directed such an employee to take leave if the information was not provided?
254 In my opinion the answer to these questions is “no”. That is because Australia Post would, I infer, have continued to deal with that employee on the basis of rehabilitating her from her work-related injury and effecting a transition back to her position as bid manager. For example, in my opinion, if a bid manager had a back injury which was work related but the employee was back at work on modified duties, I find Australia Post would have let that employee remain at work and transition back to a bid manager position.
255 Without the adjustments being made for her, Ms Watts’s psychological condition meant she could not return to a full-time position as bid manager in February 2010, when Australia Post (through Ms Scott-Brown) first raised the matter of her returning to this position, nor by 18 May 2010 when Australia Post directed her to remove herself from the workplace and go on leave. This outcome, for Ms Watts, was less favourable than a comparator employee.
256 No doubt Ms Scott-Brown’s rather sudden intervention in February 2010, seeking to apply a policy that did not in its terms squarely apply to Ms Watts, was a key event, one that proved disastrous for both Ms Watts and Australia Post. I have dealt at [210]-[225] above with why the application of the policy to Ms Watts was misconceived. For the task required by s 5(2)(b) this is, however, nothing more than a circumstantial explanation of why there might have been a failure to make the adjustments Ms Watts required in a timely manner. This explanation does not affect the conclusions I have reached.
257 Australia Post’s invocation of the policy is a distraction from the task under the DDA. It seemed to contend that, unless there was a challenge by the applicant to the lawfulness of the policy, she could not succeed. This approach misunderstands the operation of the relevant aspects of the DDA. The DDA is concerned with conduct: what an aggrieved person must prove, first and foremost, is the conduct the discriminator is alleged to have engaged in. That conduct will then be characterised in accordance with the DDA as properly construed, including ascertaining the reason for the conduct (s 5(1)) and, more importantly in the present case, the effect of that conduct (s 5(2)).
258 There is no doubt Ms Scott-Brown sought strictly to adhere to the policy in the way she dealt with Ms Watts. There is some force in the applicant’s submission that the focus of those at Australia Post most closely dealing with Ms Watts (such as Ms Scott-Brown and Ms Garrad) was really on enforcing compliance with what they considered the policy required, in the face of what they saw as a lack of cooperation and a degree of belligerence by Ms Watts. Whether or not Australia Post’s conduct was consistent with its internal policy does not alter the analysis required by the DDA. Conduct pursued because an employer’s policy requires it to be pursued can just as much constitute unlawful discrimination as conduct pursued without guidance from a policy. There is, as I have observed at [22], nothing in a cause of action based on direct discrimination as defined in s 5(2) of the DDA which authorises the Court to assess the reasonableness of the decision-making processes, or the reasonableness of the conduct, of an alleged discriminator.
259 Australia Post also submitted it was an important factor that Ms Watts had never been certified by her treating GP, Dr Saranathan, as fit to return to her duties as bid manager before August 2012. This, it said, also indicated she could not have been treated less favourably because she was never certified as fit for her position as bid manager without restrictions. Given the matters I have set out above about the construction and operation of s 5(2), this submission is perhaps ill-suited to s 5(2) and better suited to s 5(1). Nevertheless, for completeness’ sake I address it.
260 It is not in dispute that Dr Saranathan had been providing similarly worded medical certificates in respect of Ms Watts for the period she was working with Mr Schell. It is also not disputed that he continued to provide medical certificates once she was directed to go on leave by Ms Scott-Brown in June 2010 . Most of those certificates were not in evidence, but Ms Garrad’s evidence was that the certificates stated that she was fit to return to the full duties of her nominal position on reduced hours, but subject to Ms Selvi’s prescribed restrictions. This accords with emails from Ms Scott-Brown which were in evidence.
261 However, the certificate which was relied on by Australia Post for its contention (that Ms Watts had never been certified as fit to return to her position as bid manager) assists Ms Watts’ arguments rather than those of Australia Post. It is dated 5 May 2010 and covers a period of a month from that date. In form, it is a certificate used for workers’ compensation claims, although clearly that is not the use to which it was being put for Ms Watts. It described the injury or illness as “Mishandling of selection process for development Program. Significant Depression and Anxiety leading to Insomnia”. It describes Ms Watts’ type of work as “Bid Consultant”. It certifies that she is “Fit for modified duties” from 5 May 2010 to 2 June 2010, with restrictions specified as “5-7.35 hours per day, Mon-Fri. RTW must take into consideration Andrea’s medical and psychological needs as specified in the letter from Muradiye Selvi”. It sets a next review date of 3 June 2010. I infer Dr Saranathan was aware Ms Selvi would shortly be supplying a report to Australia Post. The evidence is that 7.35 hours per day is full-time hours. This medical certificate was contemplating Ms Watts could work full-time hours. It placed no inflexible restrictions on the way she needed to perform her work, but rather advised her employer to “consider” Ms Watts’ medical and psychological needs as Ms Selvi described them.
262 There is nothing in the contents of this certificate which could support a contention that Ms Watts’ treating GP was advising she could not remain at work with reasonable adjustments, or which supported the need for a direction that she stay away from work on sick leave. Quite the contrary. That is why s 5(2)(b) is made out — without Australia Post supplying those reasonable adjustments, the effect was that Ms Watts was unable to return to her position as bid manager.
263 A final point should be made about the analysis required by s 5(2). The focus of s 5(2) on the effect of not making reasonable adjustments, as distinct from the focus of s 5(1) on the reason for a person’s treatment, means that it is unclear what role s 10 of the DDA has to play in any application of s 5(2). In my opinion, it may be very little, but that is not a matter I need to decide in the present case.
264 Section 5(2)(b) requires, as I have outlined, an effect of the failure to make reasonable adjustments to be identified. That is a factual question. Here, the effect I have identified on the evidence is twofold. First, the failure to make reasonable adjustments prevented Ms Watts from returning to her role as bid manager when Australia Post wanted her to do so in and from February 2010. In turn, the second effect was that Australia Post directed her to remain away from work, using up her leave, as it was not satisfied she could return to her position as bid manager. Those effects of Australia Post’s failure to make reasonable adjustments continued for so long as Ms Watts was willing and ready to return to work, and resulted in less favourable treatment of Ms Watts than a comparator employee.
265 Nevertheless, in my opinion there was a point at which, on the facts of this case, those effects of Australia Post’s failure to make adjustments ceased. There came a point at which it was not Australia Post’s refusal to modify temporarily Ms Watts’ working hours, or alter temporarily the contents of the role she was performing, that was keeping her away from work. There came a point at which it was not Australia Post’s refusal to modify temporarily how Ms Watts could deal with workplace stressors or workload pressures that was keeping her away from work. Rather, there came a point at which what was keeping her away from work (and compelling her to use up her leave or take leave without pay) was her own lack of cooperation with her employer, and thus her own willingness and readiness to return to work. That point was reached when, having had a long list of questions about why she needed to see Dr Hollander answered, Ms Watts still refused to see him.
266 The first appointment for Ms Watts to see Dr Hollander was scheduled for 4 February 2011. As I set out at [184] above, Ms Watts had communicated some concerns to Australia Post about the necessity for this appointment, and suggested that it be postponed. This, it must be remembered, was prior to Ms Watts providing Australia Post with the second report by Ms Selvi, on 21 February 2011. At this stage, Ms Watts was asking Australia Post to accept Ms Selvi’s advice and recommendations. These events also occurred in the context of Australia Post undertaking a “reasonable adjustments assessment”, which I describe in more detail at [192]-[196] above. However, by April 2011, the “reasonable adjustments assessment” process within Australia Post had concluded, Ms Watts had provided Ms Selvi’s second report to Australia Post and been told by Ms Scott-Brown that the report was unsatisfactory for its purposes. Yet, Ms Watts still refused to attend an appointment with Dr Hollander. In my opinion, it is at this point, in late April 2011, that Ms Watts’ lack of cooperation and lack of willingness and readiness to return to work resulted in the effect that Ms Watts was kept away from work. It was no longer Australia Post’s failure to make reasonable adjustments which had the effect of keeping Ms Watts away from work.
267 In making this finding, I have relied on the following evidence. First, Ms Watts’ refusal, in writing to Australia Post on 21 April 2011, to see Dr Hollander at her scheduled appointment on 29 April 2011 (to which I refer in more detail at [197] above). Second, her continuing refusal, I infer, between April and October 2011, to cooperate in securing an appointment with Dr Hollander. Third, following a formal written direction to Ms Watts that she attend an appointment with Dr Hollander, made by Australia Post on 13 October 2011, Ms Watts’ continued unwillingness to attend appointments made for her with Dr Hollander, demonstrated by her ongoing debate with Australia Post about the lawfulness of its direction, and her insistence that appointments made for her with Dr Hollander be rescheduled (set out at [198]-[201] above).
268 Although the direction to take leave remained in place, the period between 21 April 2011 when Ms Watts refused in writing to see Dr Hollander, and when she in fact did see him in late April 2012, was a period out of the workplace because of Ms Watts’ lack of cooperation. It was no longer the effect of Australia Post’s failure to make reasonable adjustments for her psychological condition. It was the effect of her own, uncooperative, decision-making. By this stage she was not, I find, willing and ready to return to work. She had become, for her own reasons (about which I need not and do not make any findings) fixated on securing a resolution to her return to work on her terms and only on her terms. That resolve only broke down when she was faced with the possibility of losing her employment due to non-compliance with her employer’s direction, and even then she complied under much protest.
269 If Ms Watts had complied in a timely fashion with Australia Post’s request to be independently assessed by Dr Hollander, then what occurred in April 2012 through to July 2012 would, I am prepared infer and to find, have occurred in April 2011 through to July 2011. Ms Watts could have been back at work by the end of July 2011 instead of the end of July 2012.
270 Accordingly I find there was discrimination within the meaning of s 5(2) of the DDA between 18 May 2010 and 21 April 2011, but not between 21 April 2011 and when Ms Watts returned to her bid manager position on 31 July 2012.
Was the discrimination unlawful?
271 In my opinion there were contraventions of s 15(2)(b) of the DDA as contended by the applicant. The matters Ms Watts has identified (see [66] above) are benefits associated with her employment. They are the kinds of matters that an employee would usually enjoy and secure through attendance at the workplace and participation as a productive member of a workforce. Bearing in mind that these terms are to be seen neither from the exclusive perspective of the employer or the employee, these are positive outcomes an employee could ordinarily expect to enjoy and receive from attendance at work. Since they are essentially positive matters, they are within s 15(2)(b) rather than s 15(2)(d), in my opinion.
272 In her applications and consolidated amended statement of claim dealing with both proceedings, the applicant nominated a variety of dates on which she alleged the unlawful discrimination began. However, by the time of trial and in final submissions, it was clear that she sought relief in respect of loss from June 2010 through to 30 July 2012. That is the case to which Australia Post responded. I have taken the reference to June 2010 to mean the direction given to Ms Watts on 29 June 2010 that she take sick leave and remain away from work. Accordingly, despite my finding that there was discrimination from 18 May 2010, it is not appropriate on the applicant’s case as it was articulated at trial to grant any relief for the period 18 May to 28 June 2010.
CONCLUSIONS ON APPLICANT’S SECOND ARGUMENT
273 Given my findings on the first argument, it is not necessary to determine the narrower ground relied on by the applicant, in relation to the periods June 2010 – February 2011, and February 2011 – June 2012. This ground is based on Ms Watts having identified reasonable adjustments through the two reports by Ms Selvi, and so dates from the time of Ms Selvi’s first report.
274 For reasons I have outlined above, the adjustments were available from before the time Ms Scott-Brown decided that the policy should be applied to Ms Watts. There was no attempt by Australia Post to replicate how Ms Watts was working with Mr Schell within the bid management team, nor to approach Ms Watts (and Ms Selvi) to see how Ms Watts might restart working in the bid management team with the kind of transition that resulted in her successfully working with Mr Schell. There has been no suggestion that any of the kinds of adjustments proposed (including those rejected by Australia Post in its internal assessment in March 2011) imposed unjustifiable hardship on Australia Post, nor could that reasonably be suggested. The failure to make reasonable adjustments had the effect required by s 5(2)(b) but, as I have explained above, only until April 2011, and not thereafter. Those findings apply equally to the applicant’s second argument and do not alter the period over which there was unlawful discrimination.
CONCLUSIONS ON APPLICANT’S THIRD ARGUMENT
275 Similarly, this much more confined argument need not be determined in light of the findings I have already made. I have already found that, between Dr Hollander’s report and Ms Watts’ return to work in July 2012, reasonable adjustments were available in Australia Post’s workplace for Ms Watts. I have also found those adjustments had always been available. There was no vagueness about them which was not inherent in the kinds of adjustments they were. Neither Ms Selvi nor Dr Saranathan ever expressed any of their recommendations in absolute terms. No-one suggested Ms Watts could never be subject to a tight deadline for the first three months. The recommendation was to “avoid” them. These kinds of qualitative recommendations are to be expected when one is dealing with a psychological condition and a transition back into the role in which the illness previously arose. Dr Hollander’s report in a sense recognised this, including recognising what Ms Watts was, and had always been, capable of doing.
276 However, if I am wrong about my conclusions on the first and second argument, then in my opinion it is clear that there was no unlawful discrimination by Australia Post in the period after it received Dr Hollander’s report.
277 The phrase “does not make … reasonable adjustments” should, as I have observed at [30] above, be construed as incorporating some time for consideration and implementation of reasonable adjustments by the discriminator. That, in a sense, is why the alternative of “proposes not to make reasonable adjustments” is present. A discriminator would no doubt be considered to be “proposing” to make reasonable adjustments if, over a short period of time, it had accepted its legal responsibility to do so and was planning and arranging implementation of them. That is the situation in this proceeding, certainly by Australia Post’s letter of 21 May 2012. In that letter, Australia Post states that it received Dr Hollander’s report on 9 May 2012. The interval between 9 and 21 May is the kind of period the legislation contemplates for a discriminator to accept legal responsibility and consider implementation. This scheme must be given a practical effect.
DOES THE EXCEPTION IN SECTION 21A APPLY?
278 For the reasons I have set out above, it is clear that s 21A(4) excludes s 21A from having any operation in relation to discrimination which is unlawful by reason of ss 15(2)(b) or (d).
279 I have already expressed my reasons why it is not appropriate to consider the submission that the application of the policy to Ms Watts involved any change in the terms and conditions of her employment, such as to engage s 15(2)(a) and therefore s 21A.
LOSS AND DAMAGE
280 Section 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) empowers the Court to grant relief when it is satisfied there has been unlawful discrimination by a respondent. Relevantly, it provides:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
…
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
…
281 The provision grants plenary power to the Court to make orders “as it thinks fit”. In particular, subs 4(d) provides the Court with a “wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination”: Ewin v Vergara (No 3) [2013] FCA 1311 at [601] per Bromberg J. The Court’s exercise of that discretion is to be governed by the text of the relevant statute: Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ. The principles relevant to the assessment of damages in tort may be of assistance (see Hall v A & A Shieban Pty Ltd (1989) 20 FCR 217 at 239 per Lockhart J, at 281 per French J), but only to the extent that they do not conflict with the words of the statute: Ewin [2013] FCA 1311 at [604] per Bromberg J.
282 An order for compensation may be made for “any loss or damage suffered because of the conduct of the respondent”. Phrases such as “by reason of”, “because of” and “by virtue of” require a “practical application of causation principles”: Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213. A phrase like “because of” “implies a relationship of cause and effect” between the unlawful conduct of the respondent and the damage incurred by the applicant: see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 per Lockhart J; Ewin [2013] FCA 1311 at [605].
283 The parties have agreed on the calculations of specific loss of leave entitlements, income while on unpaid leave and loss of opportunity of bonuses, filing a spreadsheet reflecting that agreement.
284 The applicant submitted an appropriate way to compensate her for the loss of her leave was to order that Australia Post re-credit it. Australia Post did not submit there was no power to make such an order. I am satisfied there is power to make such an order under either s 46PO(4) or under s 23 of the Federal Court of Australia Act 1976 (Cth). Since I have found that one of the benefits which Ms Watts has been denied is the choice to use her sick and recreation leave as she needed or chose to, orders to re-credit that leave most closely reflect the kind of compensation which is consistent with my findings. It will, as much as an order operating on past conduct can, restore Ms Watts to the position she would have been in, had the unlawful discrimination not occurred. There should be a discount of 50% in respect of her sick leave re-credit, to take into account the likelihood that Ms Watts would have accessed quite a lot of her sick leave, even if she had returned to the bid management team. The evidence about her past use of sick leave during her return to work predominantly with Mr Schell after October 2008 supports this finding.
285 There is no evidence about the pattern of Ms Watts’ use of recreation or annual leave other than that, based on the amount she had to her credit and available to be used during 2010-2012, she did not previously take all her leave entitlements annually. There should be a discount of 25% applied to annual leave to be re-credited, on the basis she would have used some of that leave. If Ms Watts had entitlements to long service leave, they should be wholly re-credited, because there is no evidence to suggest she would otherwise have accessed that leave.
286 Ms Watts may have been entitled to compensation for loss of income during any period of unlawful discrimination where she had to take leave without pay. However, on the evidence it appears that she did not use up her paid entitlements until 4 August 2011. Since I have found there was no unlawful discrimination after 21 April 2011, Ms Watts is not entitled to compensation for loss of income.
287 If I was wrong in the conclusions I have reached at [241] to [268] above about when the effects of Australia Post’s failure to make reasonable adjustments cease, and therefore when the discrimination ceases, I would in any event have found that Ms Watts failed to mitigate her losses, or failed reasonably to avoid further damage by way of economic loss, by her lack of cooperation with her employer in attending for a medical examination with Dr Hollander on and from April 2011.
288 In my opinion, Ms Watts’ conduct was unreasonable in not attending to see Dr Hollander promptly after she was requested to do so by Australia Post, and after all her extensive questions about why she needed to do so had been answered. The evidence discloses no good reason at all for her prevarication about appointments made on her behalf. Her subsequent conduct in April 2012 attending for and participating responsibly in an appointment with Dr Hollander can only be explained, I find, by her finally realising her employment itself was in jeopardy because of her lack of cooperation. Australia Post should not have had to reach a point in its working relationship with Ms Watts where it had to resort to such a direction, but her lack of cooperation finally brought the matter to that level. The evidence discloses that none of the reasons she initially gave for not attending with Dr Hollander ended up in fact operating as impediments to her attendance.
289 In the context of other statutory compensation schemes, a failure reasonably to avoid damage has been held to justify refusal to order compensation even though the contravention may have continued for longer than the period covered by the award of compensation. The relevant authorities mostly concern s 82 of the Trade Practices Act 1974 (Cth) (TPA). For example, in Murphy v Overton Investments (2001) 112 FCR 182; [2001] FCA 500 at [47], Branson J held (RD Nicholson J agreeing):
an applicant will not recover under s 82 of the TPA loss or damage which he or she could reasonably have avoided (Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 per Lockhart J at 519; Leigh Enterprises v Transcrete Pty Ltd (1984) ATPR 40-452 per Fitzgerald J at 45,234; Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 per Fox J at 351). While the authorities speak of a duty to mitigate loss, the basis of that duty is to be found, in my view, in the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered “by conduct of another person”. Where any loss or damage could reasonably have been avoided, it is, in the context of s 82 of the TPA, to be regarded not as loss or damage suffered by reason of the conduct of another, but loss or damage suffered by reason of the unreasonable conduct of the applicant.
Section 46PO(4)(d) is expressed in terms similar to s 82 of the TPA. It provides that the Court may make “an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”.
290 A similar approach was taken to an equivalent compensation provision by the New South Wales Administrative Decisions Tribunal in Smith v Department of Education and Communities [2013] NSWADT 162.
291 In my opinion, between April 2011 and April 2012, any economic loss suffered by Ms Watts was not because of the conduct of Australia Post: it was because of her unreasonable and to my mind inexplicable lack of cooperation in attending Dr Hollander for a medical examination when asked.
292 The applicant sought to have an amount awarded in respect of her superannuation entitlements. What that order might be was not specified by the applicant.
293 There is no evidence before the Court about Ms Watts’ superannuation entitlements, nor what occurred to them between May 2010 and April 2011, given she was on some form of leave during that time. The applicant, having failed to adduce any evidence about whether she has sustained a loss of entitlements of this nature, or to quantify them, has failed to discharge her burden of proof in relation to this category of loss and no award should be made.
294 Ms Watts also claimed by way of compensation an order that Australia Post pay her bonuses she maintained she would have earned had she been at work as a bid consultant. The amounts were calculated by reference to bonuses previously paid to Ms Watts. Australia Post submitted that there should be no compensation for lost bonuses because Ms Watts has not proven she would have been entitled to such bonuses. Ms Psarologos’ evidence was that only employees with a performance rating of about 3 and above were awarded bonuses. After her return to work in July 2012, his evidence was that Ms Watts was given a performance rating of 2 for the 2012/13 year. I accept that evidence. In my opinion, even if she had been at work for those two years (and, contrary to my findings, was subject to unlawful discrimination for that whole time), it is likely on the whole of the evidence that Ms Watts would have been working at less than her full capacity for much of the time, and that she may have had periods where she had ongoing difficulties at work affecting her performance. There was evidence that had occurred in the period between her return to work in 2008 and her direction onto sick leave in May 2010. For example, Mr Schell annexed to his affidavit a series of emails from Ms Watts between 12 February 2009 and 16 July 2009 where Ms Watts sought reductions to her working hours from time to time. I am not prepared to find on the balance of probabilities that she would have had a performance rating at 3 or above such as to entitle her to a bonus.
295 Finally, Ms Watts is entitled to compensation for the stress, anxiety and disruption the unlawful discrimination has caused. In her own evidence, Ms Watts describes the effect of Australia Post’s conduct on her in the following way:
I was willing and able to return to my work as a Bid Consultant (on a graduated adjusted basis) during the whole period from the provision of the first Selvi report until my actual return to work in 30 July 2012.
The long delay in providing a return to work program for me has had a terrible effect. I felt rejected and sidelined. My life was put on hold for over two years and I was unable to apply my skills as a Bid Consultant. The long drawn-out delay did nothing to assist me in my recovery from the psychological injury which had given rise to the need for a return to work program.
The way I was treated was humiliating and disrespectful. I have been a very good and loyal employee of the Respondent. I consider that I have performed well for Australia Post. I have never been subject to discipline for poor performance or misconduct. I have never come close, apart from the threats made to me because of my resistance to another medical examination by Dr Hollander.
296 She was not cross-examined on this evidence and I accept it, to the extent it relates to events until April 2011.
297 In a report annexed to her affidavit given in this proceeding, Ms Selvi describes the effect of Australia Post’s conduct on Ms Watts, as she observed Ms Watts, in the following way:
I have had the opportunity to work with Ms Watts over an extended period of time and feel confident in my assessment of her as a highly motivated and enthusiastic woman who’s primary goal over this period of time has been to return to her former position with Australia Post. … Ms Watts prides herself and values the work ethos …. Her sense of self worth and self esteem revolve around her ability to work as a valued member of society. She places great worth and value on her ability to work and be productive. These are values that she has voiced throughout the time that I have been working with her.
…
Having had extensive experience with injured workers, I am acquainted with how difficult it is to motivate workers after an injury to make the attempt to return to work. Both medical treatment providers, the employer and insurance companies must invest in vast resources to motivate injured workers back to work and have to deal with serious barriers. In respect to Ms Watts she has been keen and motivated to get back to work within 3 months of her injury, her attitude about returning to her former position with Australia Post was the same from the start …
It was anticipated in early 2010 that psychological intervention with Ms Watts would reduce by mid 2010 and end within few months as she was making great progress at work and had further anticipated that once pending mediation took place and some legal issues resolved that she would be back at her pre injury position and that her life would return to normal.
Unfortunately this is not what happened. The decision taken by Australia Post in early 2010 to consider Ms Watts’s medical restrictions as ‘Non Work Related Medical Restriction’ caused a major regression in her overall mental health and emotional stability and seriously impacted upon her sense of self-esteem and self-confidence. She was concerned and worried about loosing her job and not having the opportunity for gainful employment. She was confused, agitated and felt a sense of injustice about what she was going through.
…
It is my opinion that Ms Watts suffered … psychological turmoil and emotional distress for over 20 months as she waited with feelings of helplessness and hopelessness not knowing about the direction of her vocational future which she felt were in the hands of Australia Post.
298 This part (as well as other parts) of Ms Selvi’s affidavit was subject to an objection by Australia Post. After hearing submissions and following some concessions on behalf of the applicant, this part and some other parts were admitted. Thereafter, Ms Selvi was not cross-examined on it. I accept her evidence in these paragraphs.
299 In her second report of February 2011, Ms Selvi also described the effect of the unlawful discrimination on Ms Watts, as she had observed it:
Throughout my involvement with Ms. Watts, which has extended over a period of two and half years I have found her always to be highly motivated to help herself overcome her predicament and she took an active part in all areas of her rehabilitation. In particular she has always been dedicated and motivated for a viable return back to her job which she enjoys and values as the most important thing in her life.
Having gained substantial benefit from for psychological rehabilitation Ms Watts used the opportunity to negotiate a return back to Australia Post and by late October 2008 she was back at work with a vision to gradually return to her pre injury position and normal working hours.
Over the course of the next 12 months Ms Watts condition in respect to psychological health continued to improve as she increased her working hours and was gradually taking on more responsible duties.
Despite the workplace stressors in respect to her return to work plans, Ms Watts used the strategies she had developed in her psychological sessions to cope with these and focus on trying to improve the quality of her life and return to her full time employment at her usual occupation.
In fact, as stressful as it was for Ms Watts to have to deal with, she was preparing for mediation which she accepted was a vital step towards recovery and the opportunity to move on in her career which was very important to her.
Ms Watts was progressing very well and it was anticipated that by mid 2010 she would be working normal hours and possibly at the same level of work which she was performing before her injuries. However, work place issues relating to ‘NON WORK RELATED MEDICAL RESTRITIONS’ made in early 2010, unfortunately halted both her vocational and psychological rehabilitation.
Ms Watts attended her sessions during this period very distressed and once again disillusioned about the way she was being treated, she simply wanted to get on with her life and her job at work but expressed that she felt victimised and hurt by what was happening. She once again was exhibiting symptoms of anxiety and the sleep problems which had resolved, had once again become a problem.
Given her level motivation and determination despite the new stressors which confronted her, she was able to cognitively reappraise her situation and developed coping strategies to allow her to remain at her job and to gradually work towards her goals of increasing her hours and meeting the inherent requirements of her pre injury position.
Hence, on the 16th of June 2010 Ms Watts was cleared to continue to work six hours each day performing the duties which she had been performing while she had been back at her job which she had reported was a an A05 level.
300 I also accept Ms Selvi’s evidence to the extent she observed a tangible effect on Ms Watts from Australia Post’s conduct and a regression in terms of the symptomatology of her psychological condition. However, throughout this period Ms Watts also presented a determined, sustained and forceful opposition to Australia Post’s management of her return to work. That is evident in all the correspondence before the Court. There was also evidence of Ms Watts attending meetings with Australia Post in which at least some Australia Post employees had asserted she was somewhat overbearing. She was dealing regularly and productively with her union representatives. Most importantly of all, her evidence to the Court was, and her representations to Australia Post were, that at all times throughout this period she was ready, willing and able to return to work (with appropriate modifications). This is not an employee who was so wholly undone by the treatment of her employer that she was unable to work. Quite the contrary. Further, I find Ms Watts has a great deal of strength of character and dealt reasonably well with the way Australia Post treated her, preferring to stand her ground and insist on what she believed she was entitled to. By the time she saw Dr Hollander, his opinion was that her psychological condition was in partial remission and her health had improved. Further, I find that some of her distress and anxiety was of her own making: that is, by reason of her uncooperative and stubborn approach to her employer’s requests for information. Not all her distress and anxiety was caused by the unlawful discrimination.
301 For those reasons, and taking into account my finding that the compensable period is 18 May 2010 to 21 April 2011, I do not consider a large award for distress, hurt and humiliation is justified. I award her $10,000 for this head of compensation. Since the second proceeding included allegations of a continuation of the discrimination alleged in the first proceeding, as well as new discrimination after February 2011, I consider it appropriate to award the compensation in the second proceeding.
302 In the originating applications filed for each proceeding, further non-pecuniary orders were sought. Some, such as orders seeking that the applicant be returned to work in her pre-injury role with the respondent (sought in the first proceeding filed on 13 December 2011, prior to Ms Watts’ return to work in July 2012) and orders that the respondent organise and pay for a mediation between Ms Marshall and the applicant, are no longer relevant to the proceeding. Others, such as orders that the respondent reimburse the applicant for costs associated with obtaining medical information, an order that staff of Australia Post who work with Ms Watts undertake disability awareness training, and an order for a formal written apology from Australia Post to Ms Watts, were not pursued in written submissions or at trial and, on that basis, I do not propose to make those orders.
303 No declarations were sought by the applicant in her originating applications. However, given that the Court has allowed the applicant’s claim only in part, in my opinion it is appropriate to grant declarations with respect to the precise dates of contravention of the DDA by the respondent, in each proceeding as applicable.
The parties will be given a short period of time in which to prepare proposed orders reflecting my reasons, including proposed orders as to costs.
| I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. |
Associate:
