FEDERAL COURT OF AUSTRALIA

State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581

ORDERS

THE COURT ORDERS THAT:

1.    Insofar as the appeal relates to ground 8 of the further amended notice of appeal, the appeal is allowed.

2.    The appeal is otherwise dismissed.

3.    The declaration made by the primary judge on 3 July 2015 is varied so as to read as follows:

The Department unlawfully discriminated against the applicant in breach of ss 5(2) and 15 of the Disability Discrimination Act 1992 (Cth).

4.    The appellant is to pay the costs of the respondent as agreed or assessed.

THE COURT NOTES THAT:

5.    The respondent conceded ground 8 of the further amended notice of appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The respondent, Ms Caryn Huntley, was employed by the appellant, the Department of Justice - Corrective Services, State of New South Wales (CSNSW). Ms Huntley instituted proceedings in the Federal Circuit Court (the Court below) against CSNSW pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging that CSNSW had unlawfully discriminated against her in her employment on the grounds of her disability in breach of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (DDA). Ms Huntley also alleged that the Department had acted in breach of her contract of employment.

2    It was not in issue that at all relevant times, Ms Huntley suffered (and continued to suffer) from Crohn’s Disease, a disability for the purposes of s 4 of the DDA (the Crohn’s disability) (reasons below at [4]). Nor was it in issue that at the relevant times, she suffered from Idiopathic Hypersomnolence which was also a disability for the purposes of s 4 of the DDA (the IH disability) (ibid).

3    The Court below found that CSNSW had engaged in direct discrimination against Ms Huntley contrary to ss 5 and 15 of the DDA. In so finding, the Court below rejected CSNSW’s defence under s 21A of the DDA that its conduct in moving to medically retire Ms Huntley was as a result of her being unable to perform the inherent requirements of her substantive position with CSNSW. The Court below also held that CSNSW had acted in breach of implied and express terms of its contract of employment with Ms Huntley. As a consequence, the Court awarded declaratory relief and damages pursuant to s 46PO(4)(d) of the AHRC Act with interest for the contraventions of the DDA and breaches of contract, and restored her leave entitlement under s46PO(4)(a).

4    Counsel for CSNSW identified five “real” or “significant” issues on the appeal as follows.

(1)    The primary judge erred in finding at [437] that CSNSW had breached s 5 of the DDA (direct discrimination) in that his Honour failed to determine in any real sense the question of whether Ms Huntley had been treated less favourably by reason of her disability than a person in the same position without the disability in circumstances which were not materially different. In particular his Honour failed to identify the characteristics of the comparator and to assess whether Ms Huntley had been treated less favourably than such a person (Grounds 2, and 7A).

(2)    Secondly, the primary judge’s findings that CSNSW had failed to make reasonable adjustments at each of the different periods in relation to the different disabilities were “demonstrably incorrect” (Grounds 3, 6, and 17).

(3)    Thirdly, the primary judge effectively reversed the onus in determining whether CSNSW had failed to make reasonable adjustments (Ground 3).

(4)    Fourthly, CSNSW allege that the primary judge wrongly failed to find that the defence under s 21A was made out (Grounds 4 and 5).

(5)    Finally the primary judge assessed damages on the basis of demonstrably incorrect findings, namely, that:

(a)    there was an implied term in the employment contract of mutual confidence which had been breached when it is properly conceded by both parties on the appeal that no such term is implied under Australian contract law; and

(b)    in assessing damages the primary judge found that Ms Huntley suffered a chronic depressive disorder based on the report of the psychologist, Ms McIntyre, when Ms McIntyre advised only that in her opinion it was “possible” that Ms Huntley’s illness was chronic, i.e. not on the balance of probabilities, and the finding was contrary to the evidence of other medical practitioners to which his Honour did not avert.

(Grounds 8, 13, 14, 16 and 17)

(I note that the relationship between the grounds of appeal, on the one hand, and that each of these significant issues, on the other hand, is not in every case self-evident.)

5    Against this, Ms Huntley alleges that the appeal is largely an attempt by CSNSW to raise new arguments not made at trial and that she would be prejudiced if CSNSW were permitted to press those grounds. Ms Huntley also submits that in any event no error is established in the reasons of the Court below.

6    In addition, CSNSW confirmed at the hearing that it did not press ground 1. Grounds 9 to 12 inclusive of the amended Notice of Appeal, which take issue with his Honour’s findings as to the alleged breaches of the contract of employment, including his findings that CSNSW had acted unreasonably and arbitrarily, were not identified as key issues on the appeal and were not the subject of oral submissions. However, certain aspects of some of those grounds were addressed in written submissions and counsel for CSNSW confirmed on the last day of the appeal that CSNSW relied upon its written submissions in support of those grounds. In those circumstances, I have addressed those aspects of grounds 9 to 12 which were the subject of written submissions by CSNSW and have regarded those grounds as otherwise not pressed. Ground 8 (that the primary judge erred in finding a breach of an implied term of trust and confidence) was conceded although the parties disagreed as to whether that impacted upon the award of damages and the matter should therefore be remitted to the primary judge.

2.    OVERVIEW OF CONCLUSIONS

7    For the reasons set out below, the appeal must be dismissed with costs. First, CSNSW sought to raise a number of issues for the first time on the appeal. These included the following:

(1)    the primary judge failed to apply s 5(2) of the Act because his Honour failed to identify an appropriate comparator (issue 1);

(2)    CSNSW did not discriminate against Ms Huntley contrary to ss 5(2) and 15 of the DDA by reason of a failure to make reasonable adjustments for her because to have made reasonable adjustments for Ms Huntley’s disability would have imposed upon CSNSW an unjustifiable hardship; and

(3)    a challenge to previously uncontested evidence as to economic and non-economic loss suffered by Ms Huntley.

8    Particularly in circumstances where it is apparent that Ms Huntley would have conducted the trial differently if these matters had been raised at trial, leave (to the extent to which it was sought) to raise the new issues on the appeal should be refused.

9    Secondly, no error has been demonstrated in the primary judge’s findings that CSNSW had failed to make reasonable adjustments. Nor did the primary judge impermissibly reverse the onus in determining whether CSNSW has failed to make reasonable adjustments. Rather, Ms Huntley having proved that specific identifiable adjustments were available but not made, the onus shifted to CSNSW to demonstrate that making that adjustment would have imposed an unjustifiable hardship (a case which CSNSW did not run). In this regard, with respect, the submissions by CSNSW at trial and at times on appeal appeared to overlook the proposition that under the scheme of the DDA, an identifiable adjustment is effectively deemed to be a reasonable adjustment for the purposes of s 5(2) unless the employer demonstrates that the adjustment would impose an unjustifiable hardship. I note, as this example illustrates, that it is important to appreciate that the DDA enacts a complex regime utilising concepts peculiar to discrimination law which may not accord with the ordinary meaning of the terminology applied to describe those concepts. This highlights the care with which an employer relevantly must approach the discharge of its duties under the Act.

10    Thirdly, no error is demonstrated in the primary judge’s finding that CSNSW had failed to establish on the evidence that aspects of Ms Huntley’s work in which she could no longer engage by reason of her disability constituted inherent requirements of her work.

11    In the fourth place, while the primary judge did err in accepting (without argument to the contrary) the existence of an implied contractual obligation of trust and confidence and therefore in finding that it had been breached, CSNSW did not demonstrate that that error would have led to any different assessment of the quantum of the loss suffered by Ms Huntley so as to warrant remittal of the matter to the primary judge. No other errors in his Honour’s findings as to breach of contract were demonstrated, including as to serious breaches by CSNSW of its implied obligation to act consistently with its own policies.

12    Fifthly, in circumstances where CSNSW did not at trial challenge the evidence, including expert evidence, as to economic and non-economic loss or the quantum of those losses claimed by Ms Huntley, it cannot now challenge these matters on appeal. Nor is any error demonstrated in the primary judge’s understanding of the expert evidence.

13    Finally, no finding was expressly made by the primary judge as to whether CSNSW had breached s 5(1) or s 5(2) of the DDA or both; nor does the declaration made by the primary judge clarify the matter. Nonetheless, given the way that the trial was run below and reading the findings fairly, it is apparent that the primary judge held that the breaches were of s 5(2) of the DDA, being the failure by CSNSW to make reasonable adjustments. I do not accept the submission by counsel for Ms Huntley that “it can be inferred that written in invisible ink is [subsection] (1)” as well as subsection (2). In those circumstances, I consider that the appropriate course is to amend the terms of the declaratory relief granted by the primary judge so as to refer specifically to s 5(2) of the DAA.

3.    BACKGROUND

3.1    Diagnosis of Crohn’s disability and initial periods on leave (June – August 2009)

14    Ms Huntley graduated in 2002 with a Bachelor of Social Science (Criminology). She commenced work with CSNSW as a trainee Probation and Parole Officer on 31 January 2005. At the time of instituting the proceedings below, Ms Huntley held the substantive position of Probation and Parole Officer (PPO) with CSNSW at the Campbelltown Community Offenders Support Program.

15    Ms Huntley began experiencing certain medical symptoms from late 2008 to mid-2009. She was diagnosed with the Crohn’s disability following surgery on 24 June 2009. Ms Huntley was declared unfit for work between 22 June 2009 and 3 July 2009. A further medical certificate from Ms Huntley’s gastroenterologist, Dr Paul Edwards, declared Ms Huntley unfit to work between 30 July 2009 and 31 August 2009 (reasons below at [20]).

16    As a result of the Crohn’s disability, Ms Huntley required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Ms Huntley’s access requirements could not be anticipated and were often urgent (reasons below at [21]).

3.2    Report of Dr Edwards dated 26 August 2009 for the Return to Work Plan

17    When Ms Huntley returned to work on 31 August 2009 she was capable of performing some duties. However she was unable to perform the field work or home visits component of her position as a result of her physical needs due to the Crohn’s disability. At CSNSW’s request, Dr Edwards prepared a report for CSNSW on 26 August 2009 to enable a suitable return to work plan (RTWP) for Ms Huntley to be implemented (reasons below at [22]). In its letter requesting advice from Dr Edwards, CSNSW wrote:

I understand that you are the treating doctor for Ms Huntley who is an employee of the Department of Correctional Services.

Ms Huntley has informed the department that she has been diagnosed with Crohn’s Disease and is currently certified unfit for work as a Probation and Parole Officer.

Ms Huntley has expressed a concern as the effects of IBD complicate and impact on her daily duties. In order to assist the Department of Corrective Services in developing a suitable return to work plan for Ms Huntley, it would be appreciated as a matter of urgency if you could answer the following questions. I have also attached a position description for Ms Huntley for your reference.

18    Notably the letter did not identify which of the tasks in the position description were inherent requirements. The position description that was attached to the letter was not in evidence although the assumption was made by the parties that it was the same as the position description which was later attached to the second referral to Dr Crowle (see further below at [35]).

19    In response to the questions asked, Dr Edwards confirmed Ms Huntley’s diagnosis as “IBD – likely to be Crohn’s Disease” and advised that it was “permanent” and that her prognosis was “long term - moderate prognosis”. With respect to the question as to how the condition would affect Ms Huntley and the workplace, Dr Edwards advised that it would be “[v]ery difficult to do home visits out of office work” and that “[i]n office [Ms Huntley] needs good access to toilets on a regular basis” (emphasis in the original). He also advised that he thought it was possible that she would be able to return to her substantive position “but needs good access to bathrooms & out of office work could pose problems.”

3.3    Arrangements to perform modified duties (August 2009 - 9 September 2010)

20    Ms Huntley gave evidence that she entered into an informal arrangement between August 2009 and 9 September 2010 with her then manager, Mr Morgan, to allow her to perform modified duties as a PPO. According to Ms Huntley, the adjustments to the PPO position were as follows.

(1)    She did not perform home visits for the cases, or reports, allocated to her. These were either performed by her supervisor (which was usually the case) or her PPO colleagues.

(2)    Her case load was reduced from over 140 hours per month to no more than 80 hours per month. She continued to be assigned “offenders” of all “risk levels”.

(3)    She was permanently placed on “intake” duties which involved interviewing newly released offenders who had not yet been assigned a PPO or case manager.

(4)    She was given the “additional duty of being responsible to meet with all ‘walk-ins’”, being unscheduled visits to the Campbelltown office by offenders who had not been allocated a PPO or whose officer was not available.

(5)    She responded to all external enquiries from other District Offices and Parole Units which usually involved requests as to available services for particular offenders.

(6)    She carried out ad hoc administrative tasks as required.

(7)    She undertook further report writing and administrative tasks to relieve her colleagues who in turn were relieving her of the need to perform home visits.

21    On 1 September 2009, Ms Huntley and her supervisor, Mr Morgan, signed the RTWP. The plan stated that it commenced on 31 August 2009 and “ends/review” on 2 October 2009. The RTWP provided that:

SUITABLE DUTIES

(not to be exceeded beyond the limitation of the Restrictions)

RESTRICTIONS

REQUIREMENTS

22    In the Court below, Ms Huntley alleged that CSNSW did not perform an appropriate workplace assessment with her for the period following her return to work in August 2009 until March 2010 and that no plan for reasonable adjustments was put in place. This was denied by CSNSW which alleged that a formal arrangement was in place for the period July 2009 to September 2010 which was a “short term, structured return to work program in accordance with medical recommendations and the agreement of all parties” (reasons below at [60]).

3.4    The meeting in March 2010

23    Ms Huntley alleged that in March 2010 Mr Morgan advised her that the informal arrangement could not continue in the long term due to constraints that it placed on operations in the workplace. She said that at this time no constraints were identified to her, no formal workplace assessment was conducted, and no complaints from co-workers were provided, before the decision to terminate the informal arrangement was made. Her evidence was that Mr Morgan advised that she would be referred for a medical assessment, the purpose of which was to determine what alternative positions within CSNSW she would be more suited to as a result of the restrictions on her ability to perform field visits due to the Crohn’s disability.

24    It was Mr Morgan’s evidence that when he spoke with Ms Huntley in March 2010 he explained the formal arrangements could not continue due to the constraints which the arrangements placed on the other PPO’s and case managers and that this was to the detriment of the office. That said, CSNSW contended in any event that Ms Huntley was informed by Mr Morgan that the arrangement was a “short term” arrangement. The primary judge said that in initial submissions CSNSW indicated that it would always have been a short term arrangement as the constraints on the workplace had a serious effect on the safety of the community. However, the primary judge held at [61] that “no evidence was provided in support of this contention, and no further submissions were made.”

3.5    Dr Crowle’s medical assessment dated 15 June 2010 (the first Crowle report) and failure by CSNSW to comply with the Fitness to Continue Procedures

25    On 7 May 2010 Ms Felicity Collins, OHS & IM Coordinator, CSNSW, wrote to Dr Louise Crowle, a Government Medical Officer (GMO), referring Ms Huntley for a medical assessment. In the letter attaching the referral, Ms Collins wrote relevantly that:

Reasons for Current Referral

Both Dr Edwards and Dr Ng have advised that Ms Huntley requires unrestricted access to toilet facilities on a regular basis. In order to manage her medical condition, Ms Huntley has taken extensive sick leave during the past 12 months. Accordingly, as an interim measure, the workplace has limited her to office work, no home visits, and decreased Ms Huntley [sic] required case load to meet her medical restrictions/requirements.

Dr Ng has advised that this is a permanent medical condition. Accordingly, [CSNSW] seeks clarification in relation to Ms Huntley’s current level of fitness and her prognosis for being able to perform all aspects of her substantive position.

Current Situation

Ms Huntley continues to remain in the workplace with restrictions.

Specifics for Assessment

The Department is seeking an opinion in relation to Ms Huntley’s fitness to continue as a Probation and Parole Officer in accordance with Section 25 of the Public Sector Employment and Management Act 2002. In particular, the Department seeks clarification of the following:

1.    Please confirm Ms Huntley’s current diagnosis.

2.    Ms Huntley is substantively employed as a Probation and Parole Officer. In your medical opinion and with reference to the attached position description could you please advise whether Ms Huntley is:

a.    Currently fit for her substantive position; or

b.    Temporarily unfit for her substantive position; or

c.    Permanently unfit for her substantive position.

3.    Should Ms Huntley be assessed as temporarily unfit for her substantive position, would you kindly comment on the following:

a.    a timeframe for Ms Huntley’s return to her substantive position.

b.    The temporary restrictions for Ms Huntley that you would recommend and timeframes for upgrades.

c.    Any other recommendations that would assist Ms Huntley return to her substantive position.

4.    Should Ms Huntley be assessed as permanently unfit for her substantive position, please advise of permanent restrictions preventing Ms Huntley from undertaking her substantive duties.

26    A copy of the documents given to the GMO was provided to Ms Huntley under cover of a letter signed by Joanne Frearson (then “Manager, Injury Management”, CSNSW) which advised that Ms Huntley had been referred for an assessment of her fitness for duties.

27    In addition to other documents, the letters attached a document described as “Department of Premiers Memorandum 2001 – 11: Fitness to Continue Procedures” (the Fitness to Continue Procedures). That document stated under the heading “B Minimum Standards for the Referral of Employees”, that a written report must always accompany any referral notice and that the report “must be submitted by the person in the agency who has the specific delegated authority to refer matters to the GMO. In all but exceptional cases, the section of the report dealing with the work performance of the employee must be undertaken by the employee’s immediate supervisor.” No report from Ms Huntley’s immediate supervisor was however provided. The Fitness to Continue Procedures also specified that:

The report must:

1.    contain an agreed (where possible) position description which sets out the inherent requirements and job demands of the position;

…

3.    provide factual information on how work performance is being affected, resulting in the inherent requirements and job demands of the position not being undertaken…

28    Despite this requirement, only the general PPO position statement was provided and no attempt was made to differentiate between those requirements said to be inherent or essential to Ms Huntley’s work and those which were not.

29    The Fitness to Continue Procedures also provided that:

C Consultation with Employees

It is important that discussions be held with employees when medical advice is being sought to determine whether the employees can undertake the inherent requirements and job demands of their position. This issue is particularly significant when fitness to continue referrals are initiated by the employer. Consultation with employees and sharing of referral information is fundamental to both transparency and procedural justice and promotes efficiency by allowing the employees to prepare for their assessment.

30    There is no evidence that any such discussions took place with Ms Huntley.

31    In her report dated 15 June 2010, Dr Crowle expressed the opinion first that:

DR CROWLE’S OPINION OF WORK CAPACITY

Ms Huntley is suitable to perform full time office based duties where there is unrestricted access to toilet facilities. Travel in association with work should ideally be limited to less than 30 minutes or planned such that Ms Huntley can have reliable access to toilet facilities. The information provided indicates that she has likely reached maximum medical improvement and these recommendations are likely long-term.

32    Secondly, Dr Crowle considered relevantly with respect to specific questions asked of her that:

2.    Ms Huntley is substantively employed as a probation parole officer. In your medical opinion and with reference to the attached position description, could you please advise whether Ms Huntley is (a) currently fit for her substantive position or (b) temporarily unfit for her substantive position or (c) permanently unfit for her substantive position?

Ms Huntley is assessed as permanently unfit for the full duties of her substantive position.

She was diagnosed with inflammatory bowel disease 12 months ago and has had active management of her condition. She is assessed as being in remission however despite this she continues to have bowel symptoms which are not compatible with the performance of home visits. She requires regular and reliable access to toileting facilities. This access can be provided in a regular office environment however is not available in home visits or in travel required to undertake home visits or other work that requires her to travel extended distances/time. It is unlikely given the duration of her symptoms that this will change in the foreseeable future or in the next 12 months. My opinion is consistent with that provided by her treating specialist in the available reports.

(emphasis added)

33    In answer to the question “Should Ms Huntley be assessed as permanently unfit for her substantive position, please advise of the permanent restrictions preventing Ms Huntley from undertaking her substantive duties”, Dr Crowle advised that:

I have previously detailed this in my response to Question 2. Ms Huntley continues to have bowel symptoms which would limit her ability to undertake home visits. She is however currently fit to perform full time administrative duties in an office environment where there is ready access ability to toileting facilities. Ms Huntley indicated that she [sic] her preference is to continue her employment with the Department of Corrective Services and not to be medically discharged.

34    Neither Ms Collins who authored the referral, nor Ms Frearson who sent a copy of the referral to Ms Huntley, gave evidence below. The primary judge also noted at [264] that:

Further, there was no evidence from CSNSW that those who arranged for the referral, consulted those who, on the evidence, were relevant managers and supervisors (Mr Morgan, Ms N Smith, Mr Fallon, Ms M Miller, acting Operations Manager, Campbelltown Probation and Parole, or Ms Borg) in the preparation and transmission of the referral, and in particular the documents attached to the referral.

35    As to the last point, I note that attached to the first referral letter was a document described as “Position Description – Probation and Parole Officer”. However, only the position description attached to the second referral to Dr Crowle in June 2011 was in evidence. With respect to that document, the primary judge found at [267] that “[i]t is not clear on the evidence whether this was the relevant position description as at May/June 2010 (the time of the first referral to Dr Crowle, and the making of her first report).” Nonetheless it is common ground on the appeal that the parties proceeded at trial on the assumption that the position description sent to Dr Crowle with the first referral was the same as that sent to Dr Crowle with the second referral which was in evidence.

3.6    Alternative positions in correctional facilities declined in 5 July 2010

36    In approximately June or July 2010, CSNSW asked Ms Huntley if she would prefer to be redeployed or medically retired. It was not in issue that Ms Huntley expressed her desire to be redeployed (reasons below at [63]).

37    On 5 July 2010, a representative of CSNSW advised Ms Huntley that there were two alternate positions available. Both positions were in correctional facilities and required meeting with inmates in secure areas. Ms Huntley declined both positions citing their incompatibility with her physical needs as a result of the Crohn’s disability (with reference to the initial medical report) and the security requirements of the correctional facilities.

38    While CSNSW admitted that Ms Huntley requested redeployment and was offered two positions for redeployment within correctional facilities, it did not admit that those positions were inappropriate because of the Crohn’s disability. Rather, CSNSW submitted that the positions were a clear indication of its attempts to assist Ms Huntley in redeployment (reasons below at [63]).

3.7    The position with the Corrections Intelligence Group and diagnosis of the IH disability

39    On 9 August 2010, Ms Huntley submitted an Expression of Interest for a position as a Clerk Grade 7/8 Analyst with the Corrections Intelligence Group (CIG) within CSNSW (CIG position). The advertisement for the position sought expressions of interest for the position “for a period of up to 4 months” and advised that “[t]he position is responsible for undertaking analysis on information and intelligence holdings, data and incidents, with a view to identify trends in criminal activities and specific security and other critical security issues.” The selection criteria included “a proven ability to maintain confidentiality”.

40    In making the application, Ms Huntley said that the supervising manager of the CIG position was made aware of her sick leave record. While CSNSW did not admit that the supervisor of the CIG position was told of her sick leave record, the primary judge noted that Ms Nyree Smith, Manager of Community Corrections, admitted to giving this information to “a person at CIG” (reasons below at [64]).

41    On 19 August 2010 Mr Wayne Creighton, Manager, CIG, contacted Ms Huntley and discussed concerns about her sick leave record. Ms Huntley advised Mr Creighton of her diagnosis with the Crohn’s disability, the symptoms which she experienced and that it was currently in remission.

42    Ms Huntley was offered the CIG position on merit. Ms Huntley alleged that when she left the PPO position to take up the CIG position, she was informed by Mr Morgan that on leaving she would not be able to return. This was denied by CSNSW although consistently with what Ms Huntley says she was told, it was CSNSW’s case that she could only be given the options of medical retirement or redeployment (reasons below at [62]-[63]).

43    It was not in issue that Ms Huntley commenced the CIG position on 13 September 2010 and that, as a result of the position being extended, she remained in the position until in or around May 2011 (reasons below at [64]). During October 2010, Ms Huntley sent an email to Ms Wendy Lobley, Manager, Injury Management, CSNSW, in which she made an inquiry as to whether the CIG position, then due to cease around December/January, might be extended. In the ensuing email exchange, they both expressed an understanding that the CIG position “had the potential to become long term” and Ms Huntley said that she hoped it may be a long term option as she was enjoying the work.

44    In late 2010 and throughout 2011 Ms Huntley began to experience fatigue, constant sleepiness, exhaustion, an inability to wake from sleep and extremely long sleeps. On 29 July 2011, Ms Huntley was diagnosed with the IH disability. Prior to that time during the diagnostic process Ms Huntley took varying amounts of sick leave due to her IH disability.

45    In early 2011, Ms Huntley sought permission to complete office duties from home from Ms Leah Nicholson, General Manager, CIG. Ms Huntley gave the following account of that conversation:

[Ms Huntley]:    “Leah, I am struggling with fatigue and exhaustion and there are days when I physically cannot get out of bed. There are days when I feel like I could fall asleep at the wheel driving to work because I am so tired. I have spoken to my Doctors about this and they are investigating it, but they don’t know what is causing it yet. It could be related to my Crohn’s disease, it may be an issue with my liver, they just don’t know yet. However, could I please be assessed to be able to work from home to assist me to cope until the Doctors figure out what is wrong?”

Miss Nicholson: “I will make some inquiries and get back to you later”.

[Ms Huntley]:    “Thanks so much, Leah”.

46    Upon the matter being followed up by Ms Huntley, Ms Nicholson advised her by email on 4 May 2011 that:

Hi Caryn

I have made enquiries and can confirm that this is definitely not an option. Sorry for the delay I thought I had discussed this with you.

Leah

47    No reasons were provided.

48    On 22 and 23 February 2011, Ms Gail Hillyard, the Human Resources Manager of the CIG role, sent correspondence by email to Ms Lobley, Ms Nicholson and others which discussed Ms Huntley’s sick leave. Ms Huntley was not aware of this communication. Further, Ms Huntley was not approached about her sick leave while in the CIG position, or at any other time.

49    In an email sent on 22 February 2011 from Ms Hillyard to Ms Lobley and Mr James Smith (Regional Human Resources Manager) and copied to Ms Nicholson and others, Ms Hillyard said that:

Caryn Huntley, substantive P&P Officer, Campbelltown DO, has been seconded as an Analyst Clerk 7/8 in CIG Silverwater since 13/9/10. On reviewing her P File, I note that Ms Huntley was referred for a fitness to continue duty assessment in March 2010. The assessment was conducted on 2/6/10 and a diagnosis of crohn’s [sic] disease was confirmed. She was assessed as permanently unfit for the full duties of her substantive position.

Ms Huntley was assessed as suitable to perform full time office based duties where there is unrestricted access to toilet facilities. The assessment also concluded the travel in association with work should ideally be limited to less than 30 minutes or planned such that she can have reliable access to toilet facilities. Although the duties within CIG enable unrestricted access to toilet facilities, Ms Huntley… is required to travel more than 30 minutes to work at Silverwater. CIG management were not aware of these conditions. Ms Huntley has approached the A/GM CIG requesting approval to work from home as she is finding the travel to work tiring, often feeling like she is going to fall asleep at the wheel.

Ms Huntley has taken 50 day sick leave with medical certificate [sic] during the past 12 months including 19 days with certificate since 13/9/10. Reasons for all sick leave absences relate to Crohn’s disease.

Due to the amount a [sic] sick leave taken and her inability to travel for more than 30 minutes, Ms Huntley’s secondment at CIG can no longer be supported. Ms Huntley’s secondment ceases on 2/3/11.

In view of Ms Huntley’s assessment as permanently unfit to perform the full duties of her substantive position, could you please advise an alternative placement from 3/3/11 or earlier which better suits her medical requirements.

50    Mr Smith replied:

Hi Gai,

Sorry to see that Caryn is not working out. It is a bit out of my league and will take the advice of Wendy Lobley. There may be some scope in the original medical assessment if her placement in CIG didn’t work out. Unfortunately, any other work placement will probably not achieve a different result, if one could be found.

51    Ms Hillyard replied on 23 February 2011 to Mr Smith:

Hi James,

Yes, I spoke to Wendy yesterday. She will contact Caryn and discuss further options which may involve an assessment for fitness for duty. Caryn is currently on sick leave.

52    From 29 April 2011 to 7 November 2011, Ms Huntley commenced applying for a number of other jobs and submitted expressions of interest, including for a position with the NSW Police.

3.8    The 10 May 2011 Meeting

53    The primary judge noted that the meeting on 10 May 2011 was a “key critical event” (reasons below at [70]). The meeting was attended by Ms Huntley, Ms Hillyard, Ms Lobley and Ms Nicholson.

54    The primary judge summarised Ms Huntley’s evidence regarding the meeting as follows:

40. … At the meeting Ms Lobley informed Ms Huntley that the CIG position would not be further extended, in effect, due to her illness and her extended sick leave record. As such, Ms Huntley would be nominally returned to her PPO position. Ms Lobley informed Ms Huntley that CSNSW had previously intended to “medically retire” Ms Huntley in August 2010, however as she had obtained the CIG position that process did not proceed. Ms Lobley stated that Ms Huntley was sent correspondence by letter in 2010 informing her of CSNSW’s intentions... Ms Huntley alleges that she did not receive that correspondence.

41. At the meeting on 10 May 2011 Ms Lobley informed Ms Huntley that Ms Huntley had two choices, either to agree to a medical retirement or to undertake a further medical assessment. Ms Huntley was advised that as at 20 May 2011 she would be directed to go on leave pending CSNSW’s decision. Further, that as such, she did not have a position to report to following 20 May 2011. Ms Lobley further informed Ms Huntley that CSNSW would be “guided” by the results of the medical assessment as to Ms Huntley’s ability to continue working with CSNSW. Ms Huntley declined the offer of medical retirement.

42. At the meeting on 10 May 2011, Ms Huntley inquired about CSNSW’s ability to assist her in securing a position with NSW Police. Ms Lobley informed Ms Huntley that CSNSW would not assist with, or consider, an inter-agency transfer. Further, that any application by Ms Huntley for a position with NSW Police would need to be obtained on “merit”.

(references to the evidence omitted)

55    It was not in dispute that on 10 May 2011 prior to the meeting Ms Huntley underwent an electroencephalogram (EEG) as a part of the diagnostic process ultimately leading to the IH diagnosis. After the EEG she felt “dizzy, disoriented and generally unwell”. She sent a text message to her supervisor, Ms Janelle Farroway, to advise that she would not be attending at her work that afternoon, saying “The test has thrown me for six, so I won’t be in today. Sorry, I will be in tomorrow though”. Shortly thereafter, she received a message from her supervisor stating “Leah wants to know if there is any way u [sic] can come in today as she has a meeting for you to attend?” Ms Huntley’s evidence was that this was the first and only time that she received notice of the meeting.

56    CSNSW, however, contended that Ms Huntley had requested the meeting. In this regard, Ms Nicholson gave evidence that she spoke to Ms Huntley a “day or so” before the meeting and “ascertained” that she had been told about the meeting (reasons below at [127]). CSNSW also contended that it was Ms Nicholson who informed Ms Huntley that the CIG position would not continue after 20 May 2011 (reasons below at [68]). Furthermore, while CSNSW admitted that the letter had not been sent to Ms Huntley in relation to earlier plans to medically retire her, it did not admit that she was told that her CIG position would not be extended due to her disability or her sick leave record, or that CSNSW had not proceeded with earlier plans to medically retire her because she had obtained the CIG position (reasons below at [67]).

57    In preferring Ms Huntley’s evidence, among other things the primary judge took into account that, Ms Huntley’s account of the circumstances in which she was advised of the meeting was consistent with Ms Nicholson’s prior statement in workers compensation proceedings (reasons below at [127]). His Honour further held that:

125. Ms Huntley’s evidence was that, in a telephone conversation within minutes of this message from Ms Farroway, Ms Farroway was unable to tell her why the meeting was called. Ms Huntley’s evidence was that even when she arrived at the office, about an hour and a half later, Ms Nicholson only told her that the meeting was about “some HR thing”. Ms Huntley’s evidence was that she “confirmed” her records and could not find any prior notice of the meeting. Ms Huntley’s relevant evidence under cross-examination, to the extent that it was pursued, was clear, consistent in its detail, and remained without relevant doubt. I agree with Ms Huntley’s submissions that in cross-examination CSNSW did not put to Ms Huntley that she was untruthful in, or for that matter mistaken about, her relevant evidence …

58    The primary judge agreed at [142] that “the application of the rule in Browne v Dunn [(1893) 6 R 67] in the circumstances presented, emphasises the acceptance of Ms Huntley’s account in relation to this key factual dispute” but held in any event that:

140. Even without the “invitation” flowing from the rule in Browne v Dunne [sic], I find that on balance Ms Huntley’s evidence is to be preferred to that of Ms Nicholson in relation to whether Ms Huntley was given prior notice of the meeting by Ms Nicholson. Ms Nicholson’s relevant evidence was equivocal. It lacked the clarity and certainty of Ms Huntley’s evidence. In one aspect, as set out above, it confirmed Ms Huntley’s version.

59    Accordingly his Honour found at [143] that Ms Huntley:

(1)    was not given notice of the meeting of 10 May 2011 prior to that date; and

(2)    was not put on notice of the detail of the meeting in the short time prior to the meeting.

3.9    Events following the meeting on 10 May 2011

60    Following the meeting on 10 May 2011, Ms Huntley went home in a distressed state. She consulted Ms McIntyre for psychological counselling. She also consulted her General Practitioner, Dr Farmer, on 11 May 2011 in a “distressed” and “anxious state”, allegedly as a result of the meeting with Ms Lobley, Ms Hillyard and Ms Nicholson on 10 May 2011.

61    Dr Farmer issued a Workcover NSW medical certificate to CSNSW with the diagnosis of “Anxiety Adjustment disorder” on 11 May 2011 (reasons below at [374]). That certificate stated that Ms Huntley was “unfit for work” for the period 11 May 2011 to 20 May 2011. Ms Huntley was not medically retired at this time but was placed on sick-leave pending her second medical assessment (reasons below at [348]). During the period from 11 May 2011 to 15 July 2011, CSNSW applied Ms Huntley’s accrued leave entitlements. CSNSW ceased paying Ms Huntley’s salary on 18 July 2011 and placed her on leave without pay.

62    On 11 and 12 May 2011 respectively, Ms Huntley sent emails to Ms Lobley and Ms Nicholson requesting confirmation of what was discussed at the meeting on 10 May 2011 and what options she had. The primary judge found that it did not appear that Ms Huntley received any satisfactory response to either email (reasons below at [376]). Ms Huntley also sent an email to Ms Lobley on 12 May 2011 asking her for a copy of the letter which she had been told at the meeting had been sent to her in August 2010, and which was said to have notified her of CSNSW’s intention to proceed to her retirement on medical grounds (reasons below at [377]).

63    Ms Lobley’s response by email on 12 May 2011 read as follows:

Caryn

as stated I have to look back at our records prior to my time and this is why I have indicated I will re refer you for another assessment to ensure that a fair process is followed. Again if you are telling me you are fit for full duties please supply evidence that supports this. You acknowledge that you received a copy of the medical report and the restrictions are based on this report and it has been determined that you cannot resume your substantive duties.

I will organise for another assessment to make sure due process is followed the outcomes of this will be appropriately notified to you. Additionally you indicated that you medical status had changed and given the fact the report was done several months ago so I think its appropriate to re do this to determine if this is appropriate.

The fitness to for duty document can be found on the premiers Dept web site…”

(Errors in the original.)

64    The primary judge held at [379] that that response:

…is, at best, ambiguous and unhelpful. For example, is Ms Lobley seeking to say she was looking at relevant records prior to her “time”, and this was why she had not produced the letter? If that is the case, then without looking at the records she appears to have determined that Ms Huntley be referred for another medical assessment.

In my view, the preferred relevant explanation is, as set out earlier in this judgment, that no letter had been sent to Ms Huntley. Ms Lobley’s evidence that she arranged another medical referral “to ensure due process was followed” in the circumstances can be understood as an acknowledgement that it had not been followed in the past. The references in the email to Ms Huntley’s claims of a “changed medical status” and the fact that the report was done “several months ago” were plainly put as additional to the concern about due process.

65    Ms Huntley responded on 12 May 2011 directing Ms Lobley to her initial request. Ms Lobley responded on 13 May 2011 acknowledging that Ms Huntley had not received the letter with the intent to proceed with medical retirement and referring to Dr Crowle’s earlier medical report which was said to identify that she is “permanently unfit for [her] substantive position and there are restrictions.” The letter further advised that Ms Lobley is now referring Ms Huntley for further assessment to determine if she is in fact fit for her substantive position, and advised that “[i]f the report again recommends medical retirement all relevant documentation will be sent to you in line with due process.”

66    On 6 June 2011, Ms Huntley provided another medical certificate to CSNSW from Dr Farmer in the context of the “Workcover NSW” processes (reasons below at [389]-[390]). The medical certificate stated that Ms Huntley is “fit for pre-injury duties”, referring to the “injury” alleged by Ms Huntley as a result of the meeting on 10 May 2011 (reasons below at [390]).

67    As a result of the meeting on 11 May 2011, Ms Wendy Lobley, then Manager Injury Management, CSNSW, wrote a second external medical referral for Ms Huntley to determine if she was fit for her substantive duties. While the referral and covering letter are undated, the signature by the “Assistant Commissioner, OoC&HR” approving the referral is dated 20 June 2011. In her covering letter attaching the referral, Ms Lobley stated that:

BACKGROUND

Ms Huntley was substantively employed as a Probation and Parole Officer located at the Campbelltown District Office. Ms Huntley has identified that she has a Crohn’s Disease and she was previously referred for a Fitness to Continue Assessment. The outcome of that assessment was that she was unfit for the inherent requirements for her position, however she could undertake alternative duties if certain criteria could be found. Ms Huntley was able to locate an Expression of Interest (POI) that appeared to meet her requirements. However due again to high level of sick leave she struggled to attend work.

REASON FOR CRRENT REFERRAL

Recently a meeting was held with Ms Huntley as her EOI was due to finish and Ms Huntley was asking for clarification on her employment status. The amount of leave and her medical conditions were discussed and Ms Huntley identified that she had her Crohn’s disease under some control however she now had other medical issues that were being examined. …

Ms Huntly has used excessive amounts of leave in the eight months she was on an expression of interest. CSNSW has no clarity on what duties and hours would assist Ms Huntley to remain in the work place.

…

SERVICES FOR ASSESSMENT

Corrective Services NSW seeks a medical assessment and opinion in relation to Ms Huntley’s fitness undertake any employment.

Specifically, Corrective Services, NSW wishes clarification of the following:

1.    In your medical opinion and with reference to the circumstances presented with this referral, please advise whether Ms Huntley is:

a)    Currently fit for her substantive position; or

b)    Temporarily unfit to work in her substantive position; or

c)    Permanently unfit to work in her substantive position.

d)    Fit to undertake any employment that she is suitable qualified for.

2.    Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice with a timeframe for her return to her substantive duties. In order for this to be durable, please provide guidance to the capabilities anticipated during a graded return to his substantive duties.

3.    Please comment on current treatment, including medications, and/or anything else you are aware of that would prevent or minimise further absence.

4.    Should Ms Huntley be assessed as permanently unfit for his substantive position, please provide advice of permanent restrictions preventing him from undertaking his role as a Correctional Officer with CSNSW.

(Errors in the original, including erroneous references to “he” and “him”)

68    Among other things, a document described as “position description” was attached to the referral. However, Ms Huntley alleged in the Court below that CSNSW did not provide the “inherent requirements” of Ms Huntley’s position to Dr Crowle; nor, she alleged below, was Dr Crowle asked to consider what “reasonable adjustments” could be made to her position to enable her to continue in that position. I also note in this regard that the covering letter from Ms Lobley wrongly states that the earlier medical assessment, being Dr Crowle’s first medical report, was that Ms Huntley was “unfit for the inherent requirements for her position”, whereas Dr Crowle had earlier advised that Ms Huntley was not fit for the “full” duties of her position based upon the generic position description provided to him: see above at [32].

69    Ms Huntley underwent the second medical assessment with Dr Crowle on 27 July 2011. Dr Crowle was advised on 29 July 2011 by Ms Huntley of her diagnosis with the IH disability.

70    In her report dated 10 August 2011, Dr Crowle opined that:

1. In your medical opinion and with reference to the circumstances presented in this referral, please advise whether Ms Huntley is currently a) fit for her substantive position or b) temporarily unfit for work in her substantive position or c) fit to undertake any employment that she is suitably qualified for.

Ms Huntley is permanently unfit for the substantive position of Probation and Parole Officer. This opinion remains unchanged from that provided in June 2010. Ms Huntley is unable to perform the field requirements of her substantive position.

She is currently fit to undertake employment in an office based environment on a graded return to work plan.

2. Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice for a timeframe for return to her substantive position. In order for this to be durable, please provide guidance as to the capabilities anticipated during the graded return to the substantive duties.

Ms Huntley is medically suitable for office based sedentary work provided there is reliable access to toilet facilities. Ms Huntley’s travel arrangements need to accommodate her requirement to have reliable access to toilet facilities. Possible strategies include identification of a travel route where there are reliable places to stop and access toilet facilities if travelling by car and travel at times of day to avoid peak hour traffic. It is recommended that Ms Huntley return to work on a graded return of hours, commencing at 25 hours per week and upgrading to full hours over a 2 to 3 month period as this would be beneficial in upgrading to sustainable full time hours of work whilst she continues to establish management of her most recently diagnosed condition. Utilisation of relevant flexible work hour policies or work from home arrangements, should this be possible in any suitable position, would assist in reducing the amount of sick leave required and provide flexibility to avoid peak hour traffic travel.

71    Ms Huntley was offered a temporary position with NSW Police as a Senior Analyst on 14 December 2011, having applied in September 2011. She commenced work in that position on 3 January 2012. It became a permanent position on 3 January 2014. Ms Huntley formally resigned from CSNSW on 21 January 2014.

4.    THE DECISION BELOW

4.1    Commencement of proceedings in the Federal Circuit Court

72    On 18 October 2012 Ms Huntley lodged a complaint with the Australian Human Rights Commission (AHRC) alleging contraventions of the DDA by CSNSW. By notice dated 8 May 2013 and pursuant to s 46PH(2) of the AHRC Act, a delegate of the President of the AHRC terminated the complaint.

73    On 5 July 2013, Ms Huntley filed an application in the Federal Circuit Court (originating application) claiming that CSNSW unlawfully discriminated against her on the ground of her disabilities including by failing to make reasonable adjustments and by denying or limiting her access to opportunities for promotion, transfer or training (originating application at [9] and [86]-[88]). In particular at [87] of her originating application, Ms Huntley alleged that:

By reason of the conduct pleaded in paragraphs 18 to 84, the Respondent has unlawfully discriminated against the Applicant in breach of section 5(1), section 5(2) and section 15(2)(a), (b) and (d) of the DDA by treating the Applicant less favourably on the ground of her disability in circumstances that are not materially different by failing to make any reasonable adjustments and in particular:

(a)    by failing to adjust her job duties as a Probation and Parole Officer so she was not required to make home visits;

(b)    by failing to adjust her job duties in 2011 and refusing to permit her to work from home;

(c)    by failing to adjust her job duties when due to her disability she was required to take sick leave from late 2010 until 10 May 2011 and by labelling the sick leave as “excessive” without any proper or adequate exploration of the reasons for the sick leave and without identifying what disadvantages, if any, this caused in the delivery of the Applicant’s work schedule;

(d)    by failing to find any other suitable position for the Applicant within the Respondent;

(e)    by directing the Applicant to attend two medical assessments with Dr Louise Crowle but failing to provide appropriate information about the inherent requirements of the Applicant’s position and the type and extent of reasonable adjustments that may be required;

(f)    after 20 May 2011, by directing the Applicant to not attend work;

(g)    making inaccurate and misconceived assumptions about the Applicant’s disability, her capabilities and her capacity to perform certain work, especially in the decisions made by Ms Wendy Lobley.

74    No claim was made by Ms Huntley of unlawful discrimination with respect to her psychological condition.

75    The relief sought by Ms Huntley in the originating application included: declarations that the Department unlawfully discriminated against her and had breached her contract of employment; an apology pursuant to s 46PO(4)(b); and compensation pursuant to s 46PO4(d) of the AHRC Act.

4.2    Findings on key events

76    At [115] of his reasons, the primary judge explained that there were a number of key events on which Ms Huntley relied in support of her claims under the DDA which raised the following questions:

1)    Whether CSNSW gave Ms Huntley notice of the meeting on 10 May 2011 (“the meeting of 10 May 2011”).

2)    Whether Ms Huntley could travel more than 30 minutes to work (“the travel restriction”).

3)    Whether Ms Huntley’s sick leave was ever discussed prior to 10 May 2011 and whether there was compliance by CSNSW with the Managing Sick Leave Policy (“Ms Huntley’s sick leave”).

4)    Whether Ms Huntley was capable of holding down a full time office based position (“Ms Huntley’s capabilities in employment”).

5)    Whether the conduct of CSNSW, caused Ms Huntley to suffer a significant exacerbation in her psychological condition causing her to suffer Major Depressive Disorder (“Ms Huntley’s psychological conditions”).

4.2.1    The meeting of 10 May 2011

77    I have already set out the primary judge’s findings on the first key factual issue at [59] above. There is no appeal against those findings although as I later explain in its written submissions CSNSW seeks to attack this finding in the context of challenging the award of damages by the primary judge.

4.2.2    The travel restriction

78    The second key factual dispute at trial concerned whether Ms Huntley could travel for more than 30 minutes to work as a consequence of the symptoms of her Crohn’s disability. The primary judge explained at [145] that this was one of the “medical issues” that Ms Hillyard said in her evidence prompted her to arrange the meeting of 10 May 2011. Ms Hillyard’s concern that Ms Huntley was driving more than 30 minutes from her home to Silverwater and vice versa was based on her having “googled the distance” (reasons below at [146]). This was a factor that led Ms Hillyard to conclude that Ms Huntley’s continued secondment to CIG would not be supported and should cease on 2 March 2011 (reasons below at [146]-[147]). Thus in her email dated 22 February 2011 (quoted at [49] above), Ms Hillyard, after referring correctly to Dr Crowle’s assessment that travel should ideally be limited to 30 minutes or alternatively planned such that she can have reliable access to toilet facilities, nonetheless concluded that Ms Huntley’s secondment at CIG could no longer be supported due to the amount of sick leave taken “and her inability to travel for more than 30 minutes”.

79    The primary judge found at [155] that there was nothing in Ms Hillyard’s evidence to show that she understood at the relevant time (as opposed to the time at which she gave her evidence) that Dr Crowle’s report did not state simply that Ms Huntley could not travel for more than 30 minutes, but recommended an alternative of planned trips (reasons below at [152] and [154]). Ms Nicholson, in turn, gave evidence that it was her decision not to support the extension of Ms Huntley’s placement at CIG, that she became aware of the 30 minute travel issue when Ms Hillyard brought it to her attention, and that she did not extend the secondment on that basis (reasons below at [160]). The primary judge, after referring to the ill-defined or poorly explained relevant management lines of authority in CSNSW, concluded that:

163. What can be said, on balance and ultimately, although the evidence was unclear in some aspects, is that despite her initial evidence to the contrary in cross-examination, Ms Nicholson was the manager with responsibility for the subsequent decision not to extend the secondment. It is also available to say that on her own evidence Ms Nicholson did not directly rely on Dr Crowle’s report, but on what she understood Ms Hillyard to have, ultimately, reported of it.

164. I find that Ms Nicholson’s expressed understanding of what Dr Crowle stated is factually inconsistent, or not reflective, of the entire relevant recommendation made by Dr Crowle. That is, CSNSW proceeded on the factually incorrect basis that Ms Huntley could not work in a situation which required car trips of more than 30 minutes. This plainly has relevance also to the matter of reasonable adjustments (see further below).

4.2.3    Ms Huntley’s sick leave

80    The third key area of factual dispute between the parties identified by the primary judge concerned the question as to whether Ms Huntley’s sick leave was discussed with her prior to 10 May 2011 and whether there was compliance by CSNSW with its “Managing Sick Leave Policy”. The primary judge found on balance at [181] that “Ms Nicholson, did not speak to Ms Huntley about either of those issues prior to May 2011. I further find that Ms Nicholson did not undertake the relevant procedures in relation to Ms Huntley during this time as set out in CSNSW’s policy statement.”

4.2.4    Ms Huntley’s ability to perform duties

81    The fourth factual dispute at trial concerned Ms Huntley’s ability during the relevant period to perform the duties of a fulltime office-based position. The dispute centred on whether Ms Lobley’s evidence that she considered that Ms Huntley’s absences from work indicated that her illness was not improving and that did not allow her to attend work full time should be accepted, or alternatively Dr Crowle’s opinion expressed in her reports in June 2010 and August 2011 that she could do so if appropriate adjustments were made. Not surprisingly, the primary judge did not accept Ms Lobley’s lay evidence on the issue. Accordingly the primary judge found at [193] that “that Ms Huntley was able to return to work in the manner explained by Dr Crowle and to perform the duties of a ‘full time office position’.”

4.2.5    Ms Huntley’s psychological condition – causation

82    The fifth key area of factual dispute concerned the question of whether CSNSW’s conduct caused damage to Ms Huntley’s mental health. The primary judge accepted the opinion expressed in the expert report of Ms McIntyre, a trained psychologist, who had treated Ms Huntley for over four years at the time of her report dated 17 January 2014. Based upon Ms McIntyre’s report, the primary judge found that CSNSW significantly exacerbated a pre-existing Major Depressive Disorder from which Ms Huntley suffered and prolonged consequential treatment. In this regard the primary judge observed that no evidence was led from Ms McIntyre verifying her opinion. Her report was merely annexed to the affidavit of Ms Helen Carter, the solicitor for CSNSW. Nonetheless, there was no objection to the report being read into evidence nor any attempt to call or subpoena Ms McIntyre as a witness (reasons below at [198]). Further the primary judge understandably found that attempts to cross-examine Mr and Mrs Huntley in relation to the report to elicit what they thought of it or even to explain it were of no assistance to CSNSW’s case. Rather, the primary judge found that:

199. Ms McIntyre’s report, to the extent that it gives her opinion in relation to matters within her expertise, speaks for itself. In the absence of any direct challenge to Ms McIntyre, or of any other evidence to challenge or even doubt aspects of her report, which was put in evidence before the Court, leads to the situation where I accept what is stated in Ms McIntyre’s report (see Bulstrode v Trimble [1970] VR 840 (“Bulstrode”), see also Baulch, Message v Baires Contracting Pty Ltd [2011] VSC 75 (“Message”) and Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6 (“Rumney”)). As it is presented, and as it stands, Ms McIntyre’s report is not “incredible or unconvincing” (Bulstrode).

83    Nor were Mr and Mrs Huntley cross-examined on their evidence as to the psychological impact of the events on 10 May 2011 on Mrs Huntley. Accordingly the primary judge accepted that evidence and found (at [210]) that “the conduct of CSNSW at relevant times exacerbated Ms Huntley psychological condition for the period she claims and contributed to her difficulties as she claims.”

4.3    Findings below on the alleged breaches of the DDA and contract

84    CSNSW accepted at trial that it bore the onus of proving that reasonable adjustments were made at the relevant periods and, in the context of the defence in s 21A, that no further reasonable adjustments could be made (reasons below at [249]). At trial, CSNSW’s defence was that it was not obliged to put reasonable adjustments in place because Ms Huntley could not meet the inherent requirements of the position, or alternatively it attempted to reasonably accommodate Ms Huntley (reasons below at [211]). The reasons below record that CSNSW’s submissions at trial appeared to proceed on the assumption that reasonable adjustments could not be provided to Ms Huntley or could not accommodate her needs and in part that reasonable adjustments were offered and attempts made to implement them in an attempt to accommodate the medical restrictions of her “illness” (reasons below at [251]).

85    Ms Huntley proposed four key areas where she said that reasonable adjustments could have been made but were not. These are summarised in the reasons below at [212] as follows:

1)    CSNSW’s failure to assess the adjustments put in place in September 2009 and to ascertain whether they were reasonable and could continue before advising Ms Huntley in March 2010 that they could not continue.

2)    CSNSW’s failure to consider and make reasonable adjustments to the PPO role in the period of March 2010 until early July 2010 when it determined that she was substantively unfit for the PPO role.

3)    The failure to make reasonable adjustments for Ms Huntley to enable her to continue in the CIG secondment.

4)    The failure to consider or make reasonable adjustments for Ms Huntley in or around June 2011 when Ms Huntley was referred by Ms Lobley for a second medical assessment by Dr Crowle.

86    The primary judge’s conclusions with respect to the different periods may (at the risk of oversimplification) be summarised as follows.

(1)    In the period from August 2009 to September 2010 (covering periods (1) and (2) above) CSNSW did not make reasonable adjustments to enable Ms Huntley to continue in the PPO position at the Campbelltown Office as the RTWP was put in place for one month only on the basis of a misunderstanding of the medical evidence, namely, that it was a temporary situation as opposed to a long term prognosis (at [231]-[233]). Furthermore, even if CSNSW acted as if the RTWP was in place for the whole period, there was no evidence of any adjustment or evaluation to determine whether the adjustments were reasonable in the circumstances. Nor did CSNSW establish that Ms Huntley could not carry out the inherent requirements of her position even if reasonable adjustments were made because they failed at the hurdle of proving the inherent requirements of her position. As to the latter, in the absence of further explanatory evidence, the generic position description did not establish the inherent requirements of her position. Nor were the inherent requirements of her position identified to Dr Crowle whose expert opinion had been sought in preparing the RTWP.

(2)    CSNSW also failed to make reasonable adjustments to allow Ms Huntley to continue in the CIG secondment. Her request to work from home was a reasonable adjustment given that CSNSW’s own policy contemplated this as an example of a reasonable adjustment. Yet no decision was made on whether to allow that request. Instead CSNSW decided not to further extend Ms Huntley’s secondment on the misunderstanding that the medical advice was simply that she could not travel more than 30 minutes and that she had taken too much sick leave. CSNSW admitted that it did not make any reasonable adjustments to Ms Huntley’s work situation at the time of the decision not to extend the secondment but said that that was because the inherent requirements of the position could not be met. However, no medical assessment was made of Ms Huntley’s capacity to undertake the inherent requirements of the CIG position.

(3)    CSNSW did not seek to make any reasonable adjustments to the PPO position on her “nominal” resumption of that position when she was placed on sick leave; nor was Dr Crowle advised of the inherent requirements of Ms Huntley’s position when he prepared the medical assessment. The generic position statement did not identify those requirements. The absence of any action by CSNSW to implement Dr Crowle’s second recommendation with knowledge of both disabilities was not satisfactorily explained. Ms Lobley had pre-determined that Ms Huntley should be medically retired.

87    The primary judge concluded on the issue of discrimination that:

436. In all, I find that CSNSW discriminated against Ms Huntley in breach of the DDA. For the reasons set out above, I agree with Ms Huntley that CSNSW failed to make reasonable adjustments for Ms Huntley to enable her to continue in the PPO position in 2010, failed to consider, let alone make, reasonable adjustments to allow her to continue in the CIG secondment, and in its determination that Ms Huntley was unfit for the position of PPO in 2011.

437. Further, given the factual findings made above, arising from the view of the evidence that I have taken, I find that CSNSW discriminated against Ms Huntley because of her disability by treating her less favourably in her employment (s.5 of the DDA, Varas v Fairfield City Council [2009] FCA 689 and Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133).

88    The primary judge also found that CSNSW had acted in breach of various implied terms of the contract of employment namely, the term of trust and confidence, the safe work term, the good faith term, the obligation to make reasonable adjustments, and the obligation to act consistently with CSNSW’s own policies. Furthermore the primary judge found that the conduct of CSNSW’s managers and supervisors in relation to the meeting on 10 May 2011 and its aftermath “had an adverse and significant impact on Ms Huntley’s health” (at [453]). In addition the primary judge held that:

454. I also find, in light of the evidence set out variously above, that CSNSW failed to perform obligations under the DDA and its own published policies. The failures of making reasonable adjustments, the lack of fairness in its communications with Ms Huntley were exacerbated by such conduct as putting Ms Huntley on extended leave and recreational leave, and without notification or consultation, sick leave, variously, during the period of May 2011 to July 2011 and then leave without pay in July 2011. CSNSW acted arbitrarily and capriciously in this regard. Its unexplained failure to act in good faith also gives rise to a finding that it acted unreasonably.

89    Finally, with respect to damages, the primary judge found first that CSNSW was to pay Ms Huntley an amount of $98,863.89 for economic loss as result of its conduct. That award was made in circumstances where the primary judge found that CSNSW had not taken any issue with the evidence or submissions relied upon by Ms Huntley in support of the award of damages sought.

90    With respect to non-economic loss, the primary judge accepted the unchallenged opinions expressed in Ms McIntyre’s report that the events from 10 May 2011 acted as an acute and chronic stressor exacerbating Ms Huntley’s depressive symptomology. Having regard to that evidence, his Honour found (at [471]) that “CSNSW’s conduct resulted in an acute and, on the report from Ms McIntyre, chronic impact on Ms Huntley.” The primary judge concluded that the impact of CSNSW’s actions caused Ms Huntley pain and suffering, through emotional distress and considered that an amount of $75,000 was appropriate as general damages.

5.    RELEVANT PROVISIONS OF THE DISABILITY DISCRIMINATION ACT

91    Division 1 of Part 2 of the DDA (ss 15-21B) is concerned with discrimination on the ground of a disability in work.

92    Section 15 relevantly proscribes discrimination in employment, providing that:

(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.

93    In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts), Mortimer J considered that each of subs (2)(a) to (d) must be given real and separate work to do. In particular:

(1)    With respect to subs (a), the conduct said to amount to discrimination could relate either to existing terms and conditions or to any changes made or proposed to the terms and conditions of employment (Watts at [59]).

(2)    Subs (b) is dealing with matters outside the terms and conditions of employment. The benefits which it includes are not limited to those with a pecuniary impact on the employee’s income; nor to benefits that are permanent. Rather, “[t]hey are all matters which enhance and develop a person’s capacity and opportunity in her work” and encompass benefits from the perspective of the employer (i.e. increasing the employee’s value to the employer), the employee (i.e. which bring personal achievement and satisfaction to the employee, or both (Watts at [60]). The identification of specific benefits in subs (b) was not intended to limit or restrict what might otherwise fall within the broad concept of benefit (ibid). As such, her Honour considered that:

66. …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.

(see also Watts at [271]).

(3)    The use of the word “detriment” in s 15(2)(d) should be taken to encompass different kinds of conduct or treatment from subs (b) (Watts at [67] 240). In this regard her Honour considered at that:

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 para (d) will have an immediate negative connotation: a “benefit” within para (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.

94    With respect to the phrase “terms or conditions” of employment in s 15(2)(a) of the Act, first an equivalent phrase was broadly interpreted by Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 (Allders). That case concerned s 25 of the Anti-Discrimination Act 1977 (NSW) which then provided that it was unlawful for an employer to discriminate against an employee “on the ground of his sex (2)(a) in the terms and conditions of employment which he affords him…”. Specifically, Lee J held at 55 that the expression “the terms and conditions of employment which he affords him” were not restricted to the matter of the terms of the contract of employment, but were “designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.” That passage was approved in New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [68] (Gummow, Hayne and Crennan JJ) in the context of indirect discrimination. Secondly, s 15(2)(a) of the DDA is concerned with the terms and conditions which the employer “affords” to the employee. By way of example, Lee J held in Allders with respect to the equivalent provision in the NSW Act that a requirement that a female employee retire at 60 years of age while male employees are not required to retire until 65 constituted less favourable treatment in her terms and conditions of employment. By way of contrast, s 15(2)(b) is concerned with a denial of, or limitation on, access to a benefit associated with employment which may include, but is not necessarily limited to, a benefit which is a term or condition or employment in line with the ordinary meaning of benefits and detriments in those provisions accepted by Mortimer J in Watts. Thirdly, as I later explain, the inherent requirements defence in s 21A of the Act applies to discrimination in the terms and conditions afforded to an employee referred to in s 15(2)(a) but does not apply to a denial of access to benefits or to detriments under s 15(2)(b) and (d) save in determining promotions and transfers: see s 21A(4).

95    Disability in relation to a person is defined in section 4 of the DDA to mean (relevantly):

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

…

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

…

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

96    Discrimination may be direct or indirect as defined by ss 5 and 6 respectively of the DDA. The essential difference between the two concepts was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

97    In the present case, Ms Huntley claimed to have been the subject of direct or indirect discrimination on the ground of her disability by reason of the alleged failure by CSNSW to make “reasonable adjustments” for her. Relevantly in this regard, ss 5 and 6 were amended by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) 2009 (the Amendment Act 2009) with effect from 5 August 2009 so as to include such a failure within the concepts of direct and indirect discrimination. Those amendments were intended to address the decision in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) in which the High Court held that there was “no textual or other basis in s 5 for saying that failure to provide accommodation or services would constitute less favourable treatment of the disabled persons for the purposes of s 5”: Purvis at [218] (Gummow, Hayne and Heydon JJ). As the Explanatory Memorandum to the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (the 2008 Explanatory Memorandum) explains with respect to the duty to reasonable adjustments:

38. Until relatively recently, the general view, including in the case law, was that that the Disability Discrimination Act impliedly imposes such a duty if such adjustments are necessary to avoid unlawful discrimination—subject to the defence of unjustifiable hardship. This view was supported by the Explanatory Memorandum of the Disability Discrimination Act and Second Reading Speech delivered when the Disability Discrimination Act was first enacted. However, comments made by members of the High Court in 2003 cast doubt on the existence of this duty (Purvis v NSW and the Human Rights and Equal Opportunity Commission [2003] HCA 62).

39. The proposed amendment removes this doubt by making explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship. This will return the status of the law to the original intention when the Disability Discrimination Act was introduced.

In so providing, the intention was to implement the recommendations of the Productivity Commission in its Review of the Disability Discrimination Act 1992 (Report No. 30, 30 April 2004 (the Productivity Report): (Watts at [16]). In turn, the concept of “reasonable adjustments” is drawn from the Convention on the Rights of Persons with Disabilities 2007, done at New York on 13 December 2006 (entry into force generally on 3 May 2008 and for Australia on 16 August 2008) 2515 UNTS; [2008] ATS 12 (the Convention).

98    Thus at the relevant time, s 5 of the DDA defined direct discrimination to include the following:

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

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

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

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

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

99    Section 4 of the DDA provides that “an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.” Section 11 of the Act, in turn, sets out the circumstances which must be taken into account in determining whether a hardship is an unjustifiable hardship:

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

Example:    One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

100    By s 11(2), the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

101    Indirect discrimination on the ground of a disability occurs in the circumstances relevantly defined in s 6 which provides that:

(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 requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

102    It follows that the onus of demonstrating that an adjustment is reasonable falls relevantly upon the employer both in the case of direct and indirect discrimination. However, in the case of direct discrimination, the employer must meet the high threshold of establishing that the adjustment would impose an “unjustifiable hardship”, whereas in the case of indirect discrimination, the employer need establish only that the requirement or condition is “reasonable”. Both standards require the making of an evaluative judgment. The concept of “reasonable adjustment” is considered later in these reasons at [140]-[149] below.

103    The 2009 amendments also enacted two freestanding exceptions in ss 21A and 21B. First, s 21A of the DDA creates an exception to the prohibition under s 15 where the aggrieved person is unable to carry out the inherent requirements of her or his work in the following terms:

(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; …

104    However, subsection (4) limits the scope of the exception in s 21A(1) by excluding certain circumstances of discrimination from the exception and reads (relevantly):

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

…

105    While not relied upon in this case, s 21B creates a further exception relevantly to s 15, providing that:

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.

106    In Watts, Mortimer J explained the interaction between the prohibitions against unlawful discrimination on either basis in s 5 of the DDA and the exceptions of inherent requirements and unjustifiable hardship in the following way:

50. In all circumstances in which Div 1 of Pt 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.

107    Finally, s 46PO of the AHRC Act provides that an affected person in relation to a complaint made to the Australian Human Rights Commission (the AHRC) that has been terminated may apply to the Federal Circuit Court or the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (Picos v Australian Federal Police [2015] FCA 118 at [40]). Section 46PO(4) confers power upon the Court to grant a range of remedies as follows:

(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:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(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;

(c) an order requiring a respondent to employ or re‑employ 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;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

6.    CONSIDERATION

6.1    The manner in which CSNSW ran its case at trial

108    One of the major issues in the appeal concerns whether CSNSW should be permitted to press certain grounds of appeal said to have been raised for the first time on appeal. In this regard Ms Huntley identified a number of substantial new issues, namely:

(a)    Whether sections 5, 6 or 15 were contravened by CSNSW where in the proceedings below reliance was placed only on section 21A;

(b)    Challenging Ms Huntley’s formulation of the appropriate comparator;

(c)    An assertion for the first time of unjustifiable hardship; and

(d)    Challenging the previously uncontested evidence in relation to economic and non-economic loss suffered by Ms Huntley.

109    Ms Huntley submits that CSNSW should be bound by the presentation of its case below, namely:

(a)    The manner in which CSNSW ran its case below, including the forensic decisions regarding what evidence to lead, the cross-examination of witnesses and the submissions put. Further, the approach of CSNSW was to focus on the defence of reasonable adjustments and inherent requirements rather than, as identified by [the primary judge] additionally and directly engaging with Ms Huntley’s approach of seeking to establish either direct or indirect discrimination under the [DDA];

(b)    The focus of CSNSW on Ms Huntley’s illness rather than her disability, with particular reference to CSNSW’s failure to make reasonable adjustments;

(c)    The failure of CSNSW to put before the Court evidence as to the inherent requirements of the position Ms Huntley occupied.

110    Ms Huntley also submits that it would be unfair to her if this Court were to allow these matters now to be pressed. Specifically, she submits that if she had been on notice before or during the hearing that these matters were put in contest by CSNSW, it would have impacted upon the manner in which she conducted the proceedings at first instance.

111    A consideration of the parties’ respective positions with respect to the alleged new grounds needs to be understood in the context of certain findings by the primary judge as to the manner in which CSNSW ran its case at trial.

112    First, CSNSW rightly submitted that the onus of proof in establishing the disability discrimination claims lay upon Ms Huntley: Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Gama) at [65] and [132]; see reasons below at [86]. However, while CSNSW submitted in the Court below that the allegations by Ms Huntley were serious and that this must be borne in mind when assessing the strength of the evidence put to support her claims (relying upon Briginshaw v Briginshaw (1938) 60 CLR 336), the primary judge found at [89] that “CSNSW’s submissions were silent as to how the nature of what is alleged, or what specific parts of the matters alleged, are of the level of seriousness, such as to fall within the particular caution expressed in the authorities to which CSNSW refers. Nor is this otherwise apparent from the circumstances. In short, the submissions lacked helpful particularity.” There being no allegation of fraudulent or criminal conduct against CSNSW the primary judge concluded at [91] that “[t]he lack of specificity in CSNSW’s submissions, and the lack of an attempt to relate the proposition asserted to the various pieces of evidence presented, means that it remains a general proposition” and was unhelpful.

113    Secondly, while accepting that Ms Huntley bears the relevant onus on establishing her case, the primary judge found that:

93. … this does not mean that CSNSW is relieved of the task of arguing why, or how, Ms Huntley’s case fails in this respect. That is, to put a coherent case, probative of the evidence, against those matters asserted by Ms Huntley.

94. In the current case, while Ms Huntley’s written submissions focussed on key issues said to establish her case, CSNSW’s written submissions were largely silent in relation to these matters. I note that CSNSW submitted that it operated on the basis of “remarks” said to have been made by Ms Huntley’s counsel in this matter, that “written submissions would not be necessary”. Further, that had it understood otherwise, the submissions “would have been fuller” …

95. While some focus was directed to some aspects of Ms Huntley’s “key issues” in CSNSW’s oral submissions, its focus was largely on the question of “reasonable adjustments”. As presented, I understood CSNSW’s primary (although plainly not exclusive) position as follows. Relying on s.21A of the DDA, because of Ms Huntley’s disability (noting that Ms Huntley was diagnosed with two relevant conditions at different times), she was, and would be, unable to carry out the inherent requirements of the relevant position of her employment even where CSNSW made reasonable adjustments to that position for her. CSNSW’s oral submissions did not satisfactorily explain the earlier general assertion that reasonable adjustments could not be made given the nature of the requirements of the position.

96. In this light, CSNSW’s submissions directed attention to four different periods in the chronology of relevant events. These were primarily, although not exclusively, linked to “changes” to Ms Huntley’s health, and the various attempts which CSNSW said were made to provide reasonable adjustments to Ms Huntley’s work circumstances. In this CSNSW properly understood that it bore the onus of proof in establishing this “defence” to Ms Huntley’s charges.

114    Thirdly, as I later explain, the primary judge did not have regard to further written submissions filed by CSNSW after the hearing which went beyond the limited leave granted: see further below at [125]-[127].

115    Finally, in oral submissions in the Court below, Ms Huntley submitted that CSNSW witnesses had deficiencies in their evidence exposed under cross-examination, while Ms Huntley’s witnesses’ evidence remained unshaken. Counsel for CSNSW, on the other hand, sought to explain that it was not “incumbent” upon her to cross-examine Ms Huntley in a “strong way” on the basis that the Court should operate in a “more informal way” consistent with the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) (reasons below at [113]). In this respect the primary judge held that:

114. That may, indeed, be generally the case. However, I do not understand either the FCCA Act or the [Federal Circuit Court Rules 2001 (Cth)] to seek to “amend” the approach to the rules of evidence in matters of this type. How the parties choose to cross-examine is a matter for them, of course, within the bounds of propriety, civility, and the rules of evidence. Ultimately, the Court can only proceed on the evidence presented. Any assessment of weight to be accorded must flow from the nature, and character, of that evidence in the circumstances presented.

6.2    Issue 1: alleged failure to apply s 5, DDA (Grounds 2,3,6,7 and 7A)

6.2.1    Submissions by CSNSW on the appeal

116    CSNSW submitted first that the primary judge erred in concluding that CSNSW had contravened s 5 of the DDA in discriminating directly against Ms Huntley on the ground of her disabilities because his Honour had failed to identify an appropriate comparator. In this regard, it was not in issue that it is a necessary element of a claim for relief based on alleged direct discrimination that the discriminator treat the aggrieved person less favourably than a person without the disability (the comparator) would have been treated in circumstances not materially different: see the definition of “direct discrimination” in s 5(1) and (2) of the DDA set out at [98] above.

117    The characteristics of the comparator identified by CSNSW on the appeal were articulated in the CSNSW’s submissions as follows:

4.     The question, never examined, was whether a person with similar restrictions doing the same job, but the restriction is not caused by the identified disability, would have been treated any differently. [Ms Huntley’s] claim was based on two disabilities: initially Crohn’s Disease, later overlaid with idiopathic hypersomnolence. The consequences of both were manifest, with no attempt made to identify how a person in circumstances not materially different, would have been treated.

5.    The appropriate comparator may be characterised as a person occupying the role of a PPO at the Campbelltown District Office or subsequently as an intelligence analyst in CIG where:

5.1    the person required unrestricted access to toilet facilities;

5.2    the person’s travel in association with work should ideally be limited to less than 30 minutes or planned such that they have reasonable access to toilet facilities;

5.3    the need for access to toilet facilities could arise unexpectedly and with such urgency that they would need to immediately leave their workplace;

5.4     the person would, from about early in 2011, be struggling with fatigue and exhaustion such that they felt themselves at risk of falling asleep at the wheel;

5.5    the person could not go on home visits or to secure institutions;

5.6     the person’s sick leave burdened the workplace; the person was unreliable in meeting deadlines because of frequent absences;

5.7     whilst seconded to CIG the person needed to access highly confidential documents which could not be removed from the office;

5.8    the person was suffering from a major depressive disorder of moderate severity and non-melancholic (from acute and/or chronic stressors) for which the person was on prescribed medication and fortnightly counselling;

118    CSNSW also submitted on appeal that the characteristics of the appropriate comparator would need to be considered separately for the periods:

6.1    when [Ms Huntley] was in fact working as a probation and parole officer on agreed moderated duties (31/08/09 to 13/09/10);

6.2    when [Ms Huntley] was working as an intelligence analyst (13/09/10 to 20/05/11);

6.3    when on leave prior to her placement with the New South Wales Police Force (20/05/11 to 23/01/12).

119    However, CSNSW submitted that no such comparison was engaged in at all by the primary judge in making findings of direct discrimination against it, irrespective of whether or not all or some only of the characteristics ought properly to have been attributed to the comparator. Rather, in CSNSW’s submission, the primary judge wrongly applied the reasoning rejected by the High Court in Purvis: “that the person suffered a disability; as a consequence of that disability they were restricted in the work that they did; they were treated unfavourably; and, therefore, they were discriminated against.” That erroneous approach was said to be encapsulated in the primary judge’s finding that:

436. In all, I find that CSNSW discriminated against Ms Huntley in breach of the DDA. For the reasons set out above, I agree with Ms Huntley that CSNSW failed to make reasonable adjustments for Ms Huntley to enable her to continue in the PPO position in 2010, failed to consider, let alone make, reasonable adjustments to allow her to continue in the CIG secondment, and in its determination that Ms Huntley was unfit for the position of PPO in 2011.

437. Further, given the factual findings made above, arising from the view of the evidence that I have taken, I find that CSNSW discriminated against Ms Huntley because of her disability by treating her less favourably in her employment (s.5 of the DDA, Varas v Fairfield City Council [2009] FCA 689 and Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133).

120    In these passages, CSNSW submitted that the primary judge “neither considers nor finds what were the circumstances that were not materially different and how would another person without that disability in those circumstances have been treated.”

121    In response to Ms Huntley’s submission that CSNSW did not put these matters in issue at trial and cannot now do so for the first time on the appeal, CSNSW put forward three propositions:

(1)    the issue was plainly raised by the pleadings;

(2)    submissions were made on the issue by CSNSW; and

(3)    the primary judge identified this as a key issue.

6.2.2    Was the comparator issue raised below?

122    Counsel for CSNSW did not ultimately point to any specific passage in the pleadings in support of the first proposition set out at [121] above. However, upon reading the pleadings below, it is apparent that there is no pleading of the characteristics of an alleged comparator by either party such as that now set out in CSNSW’s submissions on appeal; nor was there any specific pleading in CSNSW’s amended response filed in the Federal Circuit Court dated 13 November 2013 (the amended defence) that there was no discrimination because Ms Huntley was not treated less favourably than a person without the disability in circumstances that were not materially different. Rather, in its amended defence CSNSW simply denied without elaboration the allegations in the originating application of unlawful discrimination by reason of the differential treatment of Ms Huntley on the ground of her disabilities: Annexure A to the amended defence at [86]-[88]. As such, the pleading is equivocal as to whether or not CSNSW wished to put the comparator element in issue. It is therefore necessary to look to the actual conduct of the proceedings to see whether or not the point was taken at trial: Water Board v Moustakas (1988) 180 CLR 491 (Moustakas) at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). As their Honours also said in this regard:

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged …

It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.

123    This takes me to a consideration of CSNSW’s second proposition. CSNSW relied upon its written submissions in the Court below dated 18 June 2014 at [83] to establish that the comparator issue was put in issue at trial. That paragraph (which was the only paragraph on the matter) reads as follows:

83.    Whether [CSNSW] discriminated against [Ms Huntley] is a matter of law. The definition of ‘discrimination’ was considered by the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92[;] [2003] HCA 62; (2003) 202 ALR 133 (Purvis). The majority held that the definition required a factual comparison with the treatment that would have been given to a person without a disability in circumstances that were the same or not materially different from those of the disabled person. As it was explained by Gummow, Hayne and Heydon JJ at 185-186, at [220]-[225]:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘‘discriminator’’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:

(i) How, in those circumstances, would the educational authority have treated a person without Daniel’s disability?

(ii) If Daniel’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel’s disability?

Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel’s treatment.

124    However, those submissions do no more than recite a passage from the High Court’s decision in Purvis. It contains no submissions as to how those principles are said to apply in Ms Huntley’s case, no characteristics of the relevant comparator are identified, and no submissions are made that there was no differential treatment of Ms Huntley as opposed to a comparator without the disability.

125    Counsel for CSNSW also pointed to further submissions upon which CSNSW had sought to rely which were submitted after the conclusion of the hearing. However, as CSNSW accepted, those submissions were made after judgment had been reserved and without leave, and, accordingly, had not been taken into account by the primary judge. In this regard his Honour held that:

97. Third, at the end of the final day of the hearing in this matter, CSNSW sought, and was granted, leave to file and serve further written submissions being in the nature of references to relevant authorities. This was defined as essentially a list of authorities, in relation to [83]–[85] of CSNSW’s written submissions … These paragraphs of CSNSW’s submissions deal with some aspects of the inherent requirements for Ms Huntley’s position of employment and in relation to the question of whether CSNSW had made reasonable adjustments in 2010 such that Ms Huntley could continue in the role she held at that time.

98. The subsequent written submissions from CSNSW however go beyond the limited leave granted. They seek to address broader matters of direct and indirect discrimination, and make, albeit brief, submissions in relation to the “inherent requirements” matter.

99. I have not had regard to CSNSW’s further written submissions in relation to the matters other than the “inherent requirements” matter. Even if CSNSW had not anticipated, or even had misunderstood, that Ms Huntley would provide an outline of written submissions at the beginning of the last day of hearing, it would not be fair to Ms Huntley to consider these submissions without having given her the opportunity to respond.

100. In any event, the opportunity for oral submissions was available to CSNSW and the leave granted was clear in its focus and limitation. Ultimately, notwithstanding what CSNSW may have understood from Ms Huntley’s counsel, the choice as to how to present its case and the manner of presentation was one for CSNSW.

126    There is no appeal against the ruling by the primary judge not to accept its submissions on this issue filed after judgment was reserved, as counsel for CSNSW accepted. Nor can I see any error in the approach of the primary judge. As the Full Court held in SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; (2013) 308 ALR 266 with respect to supplementary written submissions filed by the respondent in that case after judgment was reserved:

66    …The respondent also filed further written submissions pursuant to that leave but, in our view, went beyond that leave in paragraphs 7-10. As the majority said in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 at [192]: “This is unsatisfactory. It is impermissible to file further submissions without leave, and this cannot be evaded by adding on to submissions filed with leave other material for which leave should have been obtained.” …

67    The filing of such submissions is to be deprecated because it runs counter to the principle that the hearing, in open court, is the time and place to present argument; it is at the hearing that a party has the opportunity to put his or her case; and a fair and effective process requires that written submissions beyond the scope of any leave granted should not be filed lest there be a fresh round of answering submissions. So that the other party is not put at a disadvantage, the proper course to take is to ignore the passages in the further written submissions which go beyond the limited grant of leave. This we have done.

127    It follows that CSNSW’s submissions filed after the hearing were not before the Court below and did not form part of CSNSW’s case at trial. As such, they cannot be relied upon to suggest that the issue of differential treatment by reference to a comparator was live at the trial.

128    On the other hand, Ms Huntley made specific submissions at trial regarding the issue of the comparator. In the outline of applicant’s opening submissions dated 10 June 2014 filed in the Court below, Ms Huntley submitted at [9] that “[a] person undertaking the same role as Ms Huntley who did not have her disabilities and was in circumstances not materially different to hers would not have been treated in the same manner and would have been treated more favourably ….” While the submission, with respect, does little more than repeat the terms of s 5 without grappling with the issue of a comparator, the fact remains that no issue was taken by CSNSW with the proposition in Ms Huntley’s submissions despite being on notice of it from the outset of the trial.

129    As to the third proposition at [121] above, CSNSW pointed to the primary judge’s acknowledgement at [86] that “Ms Huntley bears the onus of proof in establishing her claims in relation to disability discrimination…and the relevant standard is the balance of probabilities”. The primary judge’s identification of the issue of the comparator as a key issue was said to be at [81(4)] of his Honour’s reasons which read:

In light of the above background, it is clear that large parts of the entire factual account given both by Ms Huntley and CSNSW remain in contention. Bearing in mind the legislative scheme, the following issues arise for determination in the present case:

…

4)     Was Ms Huntley treated less favourably than a person without her disabilities was, or would be, in the same circumstances?

130    However, the fact that the primary judge identified this in his reasoning as a “key issue”, in my view, meant no more than that his Honour appreciated that it was a key issue in establishing a claim of direct discrimination in accordance with the requirements of s 5(1) and (2) of the DDA. It did not constitute any acknowledgement by him that the matter had been put in issue between the parties.

131    In short, there is nothing in the pleadings, in the written submissions before the Court below filed by CSNSW, or in the oral submissions made on behalf of CSNSW at trial, to suggest that CSNSW took issue with the case by Ms Huntley that she was subjected to differential treatment on the grounds of her disability and that the primary judge should therefore reject the claim that Ms Huntley had been unlawfully subject to direct discrimination. Rather the case was run on the basis that there was no direct discrimination because reasonable adjustments had been made (thereby explaining the denial at [86]-[88] in Annexure A to the amended defence) or the inherent requirements exception in s 21A was made out. As the primary judge held:

104.    It is to be remembered… that the strategy employed by CSNSW in these proceedings, as illustrated by the approach in the written submissions, was to focus on the “defence” of reasonable adjustments and inherent requirements (s.21A of the DDA), rather than, additionally and directly engaging with Ms Huntley’s approach of seeking to establish either direct or indirect discrimination under the DDA.

132    In those circumstances and in the context of the Australian adversarial system of justice, the primary judge was entitled to proceed as he did upon the basis that the comparator element of the definition of direct discrimination was not in issue and to focus instead upon those matters which were in issue between the parties. It is this which explains the fact that the reasons below do not set out an independent line of reasoning by the primary judge for the conclusion that CSNSW discriminated against Ms Huntley by treating her less favourably because of her disability, once the primary judge had determined on the evidence that CSNSW had failed to make reasonable adjustments.

6.2.3    Should leave be granted to raise the comparator issue?

133    That being so, leave should be refused to allow CSNSW to raise the comparator issue now on appeal. First, as the High Court held in Coulton v Holcombe (1986) 162 CLR 1 at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

134    Similarly the High Court held in Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 (on which Ms Huntley relied) that:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

See also Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.

135    These principles flow from the nature of an appeal to this Court. As Kenny J explained in Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 at [4] (on which Ms Huntley also relied):

An appeal from a judgment of the Federal Magistrates Court is not an appeal by way of a hearing de novo, nor is it an appeal in the strict sense:  cf Low v Commonwealth of Australia [2001] FCA 702, per Marshall J at [3].  Such an appeal is conducted as a re-hearing.  On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual, or discretionary error:  see Allesch v Maunz (2000) 173 ALR 648, at 653-4 per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421, at 439 per Gleeson CJ and Gummow J; and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585, at 590 per Gleeson CJ, Gaudron and Hayne JJ.

136    Secondly, if CSNSW had submitted that a comparator should have the characteristics now identified on the appeal, that would have been “strongly contested” by Ms Huntley. In Ms Huntley’s submission, the proposed comparator propounded by CSNSW failed to take into account that a disability as defined by the DDA following the decision in Purvis includes behaviour that is a symptom or manifestation of the disability, whereas the characteristics of CSNSW’s proposed comparator include several symptoms or manifestations of Ms Huntley’s disability.

137    Thirdly, Ms Huntley submitted that if the issue had been raised at trial, it would have impacted upon the way in which she conducted the trial. I consider that it is highly likely on this scenario that Ms Huntley would have sought to address the issue by cross-examining witnesses and adducing further evidence as to how a person in Ms Huntley’s position absent the disability would have been treated. The question was not simply a matter of law but a mixed question of fact and law. As the joint judgment held in Moustakas at 497, “[m]ore than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.”

138    As Allsop J (as his Honour then was) (Drummond and Mansfield JJ agreeing) explained in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424, the considerations which underlie the principles articulated in cases such as Moustakas:

36. The roles of the trial and the appeal need to be kept distinct. The appeal is not a reworking of the trial taking account of such impediments as are thrown up by the judge's findings which alter the landscape.….

37. It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken….

38. However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked: …. Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice...

(citations omitted) (emphasis in the original)

See also Pauls Retail Pty Ltd v Sporte Leisure Pty Ltd [2012] FCAFC 51; (2012) 202 FCR 286 at [63] (the Court).

139    It follows that CSNSW did not take issue with Ms Huntley’s case insofar as she alleged that CSNSW had treated her less favourably than a person without the disability (the comparator) would have been treated in circumstances not materially different. As the primary judge held at [93], the fact that the onus lay upon Ms Huntley to establish this element of her claim did not relieve CSNSW of the task of arguing why, or how, Ms Huntley’s case fails in this respect. In the absence of any such argument, the primary judge was entitled to treat the matter as settled. As such, leave would be required to permit CSNSW to raise the issue now. No leave should be granted given in particular the prejudice which Ms Huntley would suffer if that course were adopted.

6.3    Issues 2 and 3: Failure to make reasonable adjustments (Grounds 3, 15, 16 and 17) and defence under s 21A, DDA (Grounds 4 and 5)

6.3.1    What is meant by “reasonable adjustments” under the DDA?

140    Despite its enactment in 2009, there has been little judicial consideration of the 2009 amendments to the DDA which, as earlier explained, expanded the concept of direct discrimination by the enactment of s 5(2) (quoted at [98] above) to include a failure to make reasonable adjustments for persons suffering from a disability. However, Mortimer J in Watts undertook a detailed and helpful analysis of those amendments with which no party took issue on the appeal. A number of points emerge from that decision which can usefully be made at the outset.

141    First, as earlier mentioned, while the Convention uses the phrase “reasonable accommodation”, the explanatory material to the 2009 amendments to the DDA acknowledge that the concept of “reasonable adjustments” is drawn from the Convention: Watts at [18] (referring to the 2008 Explanatory Memorandum at [28]-[29] and [35]). Article 2 of the Convention defines reasonable accommodation as follows:

“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.

142    In this regard, as Mortimer J stated in Watts at [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 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 at [97] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [247] per Kiefel J; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [59].

143    Secondly, it was held that there is no statutory definition of the word “adjustment” and it is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition): Watts at [22].

144    Thirdly, as earlier mentioned, s 4 of the DDA (quoted at [95] above) deems an adjustment to be a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person, the onus of which lies upon the alleged discriminator. Thus the concept of reasonableness in this context is to be determined by applying s 4 of the DDA. As Mortimer J held in Watts at [22] 228:

… 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.

145    It follows that the DDA removes the capacity for a discriminator or a court to assess conduct or modifications by reference to ordinary notions of reasonableness. Thus, “[u]nless 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.”: Watts at 229 [27].

146    In the fourth place, the “reasonable adjustments” that s 5(2)(a) requires be taken are adjustments “for the person”. In this regard, Mortimer J in Watts at [25] explained that:

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 Pt 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.

147    Fifthly, as to the need to tailor the adjustments to the particular individual and her or his work, Mortimer J said in Watts at [24] that:

…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. … 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”.

148    Furthermore, her Honour held that “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: Watts at [57], see also at [277].

149    Finally, notwithstanding the width of what may constitute an adjustment for these purposes, the adjustment must still be sufficiently identifiable to enable the discriminator to determine whether making the adjustment would impose unjustifiable hardship upon her or him: Watts at [25]. However, the degree of specificity required in the individual case will be matter of fact: ibid.

6.3.2    Is it open to CSNSW to contend on appeal that the adjustments would have subjected it to unjustifiable hardship? (Ground 3.2)

150    Ground 3.2 of the further amended notice of appeal alleges that:

3.     In so far as his Honour’s findings include discrimination pursuant to s 5(2) of the DD Act

…

3.2    his Honour failed to identify the specific adjustments that would be deemed “reasonable adjustments” and thus failed to address whether those specific adjustments imposed unjustifiable hardship on the appellant.

151    In so far as this ground and the submissions for CSNSW sought to raise the question of whether the adjustments imposed an unjustifiable hardship on it, this was not an issue run by CSNSW at trial. It was neither pleaded nor the subject of submissions by CSNSW. Understandably therefore, in opening submissions at trial, counsel for Ms Huntley specifically mentioned that “there is no claim of unjust hardship in these proceedings” and said that for this reason, Ms Huntley did not press for a declaration pleaded in the originating application that Ms Huntley “in her position of a Probation and Parole Officer would not have imposed an unjustifiable hardship on the respondent and section 21B of the DDA has not been made out.” Also understandably counsel for Ms Huntley submitted on the appeal that had this issue been raised below, it would have impacted on the way in which Ms Huntley ran her case including as to the evidence which she may have called. No doubt, it would also potentially have impacted upon lines of cross-examination pursued. In those circumstances, I accept Ms Huntley’s submission that it is not open to CSNSW to run the unjustifiable hardship issue for the first time on the appeal and leave to do so should be refused: see further the discussion of the authorities at [133]-[138] above.

6.3.3    The failure to make reasonable adjustments upon Ms Huntley’s return to work in the PPO position (31 August – 20 October 2009)

6.3.3.1    Key findings below on the failure to make reasonable adjustments

152    In the Court below, Ms Huntley alleged that Dr Crowle was not informed of the “inherent requirements” of the relevant occupational “role”, or requested to identify any reasonable adjustments by CSNSW in preparing her first report dated 15 June 2010 (reasons below at [29]). On the other hand, CSNSW denied that, in referring Ms Huntley to the GMO, it did not outline the inherent requirements of the position, being the position description attached to the brief (reasons below at [266])) or that it did not request information on any reasonable adjustments; rather CSNSW stated that no reasonable adjustments could be made to Ms Huntley’s position due to the inherent requirements of the position (reasons below at [62]). It was also CSNSW’s position at trial that it implemented reasonable adjustments upon Ms Huntley’s return to work but that Ms Huntley could be given only the options of medical retirement or redeployment (reasons below at [63]).

153    The primary judge rejected CSNSW’s contentions and held at [291] that in the period from August 2009 to September 2010, CSNSW did not make reasonable adjustments to enable Ms Huntley to continue in the PPO position at the Campbelltown Office. This was based upon a number of key findings which may be summarised as follows.

(1)    Ms Huntley was not given the opportunity to provide any input into the drafting of the RTWP. She was presented with the document on her return to work (reasons below at [223]).

(2)    The impetus for the instigation of the document and drafting of its terms came from Mr Morgan who at that time had understood Ms Huntley to have an illness which may improve over time rather than a (long-term) disability (reasons below at [220], [224]). The primary judge did not accept that Mr Morgan acted callously in relation to Ms Huntley’s return to work in August 2009 of the drafting of the return to work plan but rather the failure to ask Ms Huntley for input represented a deficiency in proper management of the issue (reasons below at [229]).

(3)    There are a number of difficulties for CSNSW in establishing that it implemented reasonable adjustments on Ms Huntley’s return, namely:

(a)    CSNSW’s primary focus was in dealing with a person whom they said had an illness necessitating long, disruptive and unplanned absences from work which impacted on the efficiency of the work of the office and on other staff (at [248] and [259] see also at [220] and [231]). However the DDA, including s 21A, requires a balance between those considerations and the provision of reasonable adjustments (at [261]). His Honour considered (at [262]) that this deficiency is illustrated by CSNSW’s conduct in relation to the two referrals to Dr Crowle and lack of reasonable adjustments after March 2010, with its reliance upon (at best) “on any plain reading, a generic document in relation to ‘jobs’ or positions having the ‘position title’ of Probation and Parole Officer’ at ‘various’ locations.” (reasons below at [268]).

(b)    The fact that the RTWP was said to be a “short-term” program supported the proposition that Mr Morgan misunderstood the relevant medical evidence of Dr Edwards that it was a “long-term” prognosis (reasons below at [232]-[233]; as to Dr Edwards report, see above at [17]-[19]). On his own evidence Mr Morgan proceeded at that time on the basis that Ms Huntley suffered from an illness with the possibility that her symptoms would improve (reasons below at [231] and [220]).

(c)    While CSNSW submitted that the RTWP was to cover a period of at least six months from early September 2009, on its face the RTWP states that it was to commence on 31 August 2009 and “Date End/Review: 2/10/09”, i.e., just over a month. There was no evidence that any process took place involving Ms Huntley or otherwise extending the time of the currency of the plan beyond that date. The primary judge found that “[w]hat arises therefore was that, at best for CSNSW, a one-month plan purportedly seeking to address adjustments to Ms Huntley’s work situation as a PPO was put in place. However I do not accept that any such formal plan can be said to have been applied for the remainder of Ms Huntley’s time at the Campbelltown office” (at [235]).

(d)    Nor was there any satisfactory evidence that any review of Ms Huntley’s work situation was conducted during this period. His Honour concluded that “even if it could be said that Mr Morgan, Ms N Smith and the other employees at the Campbelltown Office of CSNSW, albeit without formally notifying other relevant personnel in CSNSW, acted as if the RTWP was in place for the entirely of the period, there is no evidence of any assessment or evaluation such as to then be able to determine whether the adjustments were reasonable in the circumstances” (at [236]).

(e)    There was no evidence that any of the relevant managers or supervisors, including Mr Morgan, turned their minds at the relevant time to what were the inherent requirements of the PPO position to which Ms Huntley returned and what reasonable adjustments could be made in that light (at [243]-[244]). Nor was there any satisfactory evidence that any manager at CSNSW at the relevant time properly understood the inherent requirements of the particular PPO position in respect of which any reasonable adjustment would need to be calibrated, assessed and implemented (at [280]).

(f)    Nor did the referral to Dr Crowle in May 2010 or attached position description contain any clear statement of the inherent requirements of Ms Huntley’s PPO position at the Campbelltown Office at the relevant time (at [270]-[272]; [283]); nor was there was any discussion with Ms Huntley as to the inherent requirements of her position or any reasonable adjustments (at [273]). Further, while Dr Crowle was sent the CSNSW Community Offender Services Guidelines for Supervision (2012) (described by the primary judge as a “generic policy statement” or “guidelines”), there was no evidence that Dr Crowle was briefed on the substance of those guidelines as they related specifically to Ms Huntley’s circumstances (at [274]-[278] and [283]). Nor contrary to the Department’s Fitness to Continue Procedures did the referral contain a position description setting out the inherent requirements and job demands of the position. Equally there was no evidence of any report by Ms Huntley’s immediate supervisor or other person with managerial responsibility such as Mr Morgan dealing with Ms Huntley’s work performance, contrary to the mandatory requirement in the Fitness to Continue Procedures which required such a report to be completed except in “exceptional” circumstances, by the employee’s immediate supervisor (at [284]-[285]; see also at [278]). Yet both the inherent requirements of the position and work performance “were plainly relevant considerations to the question of reasonable adjustments” (at [285]).

(g)    A focus on “disability”, as opposed to “illness”, at the relevant time would have allowed a focus on what the consequences of the disability were for Ms Huntley and CSNSW in terms of Ms Huntley’s work situation and CSNSW’s responsibilities. Rather, “what appears, on the evidence, to have been the case was a more limited focus, primarily on what was seen as Ms Huntley’s inability to fully participate, physically, in work duties, and to attend work for lengthy periods due to her absences” (at [248]). That concern and the concern as to the impact of her absences from work and restricted duties upon the office and staff do not excuse under the DDA the failure by CSNSW to provide or attempt to provide reasonable adjustments to Ms Huntley (at [257]-[261]).

(4)    Finally, Ms Huntley had submitted in the Court below that the failure of CSNSW to consider reasonable adjustments included its failure to assess the adjustments put in place in September 2009 to ascertain whether they were reasonable and could continue, before advising Ms Huntley in March 2010 that they could not continue. I agree with Ms Huntley that the primary judge accepted that submission when his Honour held at [436] that CSNSW had failed to make reasonable adjustments for Ms Huntley to enable her to continue in the PPO position in 2010. In this regard, with respect to the time that Ms Huntley was told that she would be removed from her PPO position in March 2010 and the culmination of her time as a PPO at Campbelltown in September 2010, the primary judge had earlier found at [257] that:

The following elements, drawn from what is set out above, are relevant to this consideration. One, the creation of a RTWP, in circumstances where Ms Huntley was given no effective opportunity to have any input. Two, the stated duration of the RTWP, which without review and in some unexplained fashion was said to have continued to have currency beyond that time. Three, the focus on the “illness”, rather than the “disability”. Four, the lack of satisfactory evidence as to what, at the relevant time, were considered to be the inherent requirements of the PPO position.

6.3.3.2    Did the primary judge err in finding that CSNSW did not make reasonable adjustments in the period June 2009 – March 2010?

154    It was not in dispute that CSNSW contended below that it had attempted to reasonably accommodate Ms Huntley’s disability (at least with respect to certain periods in issue) and in the alternative had relied on the defence in s 21A. This also accords with the primary judge’s finding at [211].

155    CSNSW argued first on the appeal that the primary judge’s findings that CSNSW had failed to make reasonable adjustments at each of the different periods in relation to the different disabilities were “demonstrably incorrect”. Specifically, with respect to the period from Ms Huntley’s return to work in her position as a PPO on 31 August 2009 to 13 September 2010 when she was transferred to CIG, CSNSW argued that:

Adjustments were made, as requested by her and consistent with her medical report dated 26/08/2009. The Appellant tried to help her return to work in every way. The plan was contemplated as short term, to accommodate potential for improvement. She was referred to Dr Crowle when this did not occur.

156    The adjustments made on which CSNSW relied were the variation made to Ms Huntley’s case load and the elimination of home or field visits, with others in the Department taking over that aspect of her role (see further at [20]-[21] above). In the alternative, CSNSW submitted below that it was not obliged to put reasonable adjustments in place because Ms Huntley could not undertake home or field visits which the primary judge ought to have found constituted inherent requirements of the position.

157    On its face, the RTWP constituted an “adjustment” for the purposes of s 5 of the DDA, being “an alteration or modification” for Ms Huntley operating on her ability to undertake her work as a PPO officer. However, the primary judge rejected CSNSW’s submission that the RTWP was to cover a period of at least six months. Instead, the primary judge found that it was a one month plan and that no formal plan can be said to have been applied for the remainder of Ms Huntley’s time at the Campbelltown office (at [235]-[236]). Further and in any event it was CSNSW’s case that the arrangement had always been a “short-term” one based upon a misunderstanding of the medical evidence (see at [24] above). The creation of a formal long-term plan constitutes an identifiable adjustment or modification for Ms Huntley.

158    It follows that that adjustment was reasonable for the purposes of s 5(2) subject only to CSNSW demonstrating that it would impose an unjustifiable hardship, which was not the case run by CSNSW. It further follows with respect to ground 3 of the notice of appeal that there was no impermissible “reversal” of the onus of proof by the primary judge so as to relieve Ms Huntley of the onus of proving that specific identifiable adjustments were available but not made.

159    While they overlap, additional features of a plan not made by CSNSW as found by the primary judge, included:

(1)    the failure to prepare a plan in consultation with Ms Huntley (see [153](1) and (2) above);

(2)    the failure to prepare a plan which was based upon the medical evidence of Dr Edwards or later Dr Crowle in the context of a process which complied with CSNSW’s policies and procedures (see [153](3)(a)-(f) above); and

(3)    the failure to undertake any review or assessment of whether reasonable adjustments were being made for Ms Huntley (bearing in mind that adjustments may need to be flexible and change over time), the focus being instead upon the impact of her illness on the efficiency of the office and on other staff members (see [153](3)(g) above). (It will be recalled in this regard that in approximately June or July 2010, CSNSW asked Ms Huntley whether she would rather be deployed or medically retired.)

160    Implicit in his Honour’s findings on the first and second of these further points is, in my view, the correct assumption that the failure to comply with the Department’s Fitness to Continue Procedures necessarily subjected Ms Huntley to a detriment or denied her access to a benefit associated with her employment contrary to s 15(2)(d) or (b) (see above at [92] and [93](2) and (3)). Nor do I accept that the primary judge erred in holding that CSNSW wrongly assumed that the generic position description sufficiently identified the inherent requirements of Ms Huntley’s PPO position for reasons I later explain. The third of the further points is in effect related to the failure to appreciate the long-term nature of Ms Huntley’s disability.

161    Next, on a number of occasions in its submissions, CSNSW appeared to contend that the question was simply whether an adjustment was “reasonable” in the ordinary sense of the word. For example, CSNSW submitted that:

28.1.2 [Ms Huntley’s] duties as a PPO were modified in accordance with her requests and medical advice… from 31/08/2009 to 13/09/2010. She was content with those changes to her employment. They were reasonable adjustments. …

162    However, as earlier explained, s 4 of the DDA deems an adjustment to be reasonable absent proof that it would impose an unjustifiable hardship: see above at [144]. As such it is not sufficient for CSNSW to demonstrate that an adjustment is reasonable in the ordinary sense of that word; rather it was incumbent upon CSNSW to demonstrate that to have implemented the adjustments identified by Ms Huntley would have imposed an unjustifiable hardship upon CSNSW. However, as earlier found, CSNSW did not run a case below of unjustifiable hardship and cannot now run such a case for the first time on appeal: see above at [151]. I also note that, to have done so, CSNSW would have had to address all of the relevant circumstances of the case, including those set out in s 11(1) of the Act.

163    CSNSW also contended that:

Under the rubric ‘Reasonable adjustments and Inherent Requirements’, his Honour has elided two concepts: What are reasonable adjustments and consideration of a defence arising out of an inability in the aggrieved person to carry out the inherent requirements of the particular work. As a consequence of this elision his Honour has confused where the onus lay. His Honour should have given clear reasons as to whether there was discrimination within the meaning of sections 5(1), 5(2) and 6 at the relevant time. If he had made a finding that discrimination had occurred he ought then have addressed the question of whether the defence pursuant to s.21A has been made out by [CSNSW] in the particular circumstances. None of this occurred.

164    This point is answered by the fact that his Honour did in fact find a failure by CSNSW to make reasonable adjustments at which point the onus shifted to CSNSW to demonstrate that to have implemented those adjustments would have imposed an unjustifiable hardship upon it.

165    Nonetheless, I note that there is some force in the proposition that the manner in which the primary judge dealt with the issue of reasonable adjustments and inherent requirements is, with respect, somewhat unstructured and repetitive, making the exercise of following his reasoning at times difficult. That said, however, the manner in which his Honour dealt with the two issues together in the one section is in part explained by the inevitable overlap between them. Thus the question of assessing what reasonable adjustments might be made from a practical perspective must inevitably take into account the inherent requirements of the position as, for example, the Department’s own Continuing to Work Procedures required. The failure by CSNSW to put forward a defence that carefully addressed the different elements of the defence is also likely to have contributed to the difficulties of structure apparent in the primary judge’s reasons. As Ms Huntley submits, an illustration of such deficiencies in the manner in which the case was run is the failure by CSNSW to give any attention to the operation of s 21A(4) of the DDA despite Ms Huntley’s express reliance on alleged contraventions of s 15(2)(b) and (d).

166    It follows that insofar as CSNSW contends that the primary judge erred in holding that it had failed to make reasonable adjustments upon Ms Huntley’s return to work in the PPO position, the appeal cannot succeed. The question is then whether the primary judge’s erred in holding that the defence under s 21A was not established, as CSNSW contends.

6.3.4    Rejection of the inherent requirements defence in s 21A of the DDA

6.3.4.1    What is meant by the inherent requirements of the particular work for the purposes of s 21A of the DDA?

167    It will be recalled that the exception in s 21A of the DDA (quoted at [103] above) applies where the discrimination relates to “particular work” (s 21A(1)(a)) and the aggrieved person “would be unable to carry out the inherent requirements of the particular work” because of the disability, even if reasonable adjustments for that person were made (s 21A(1)(b)). Justice Mortimer in Watts gave close consideration to the defence in s 21A of the DDA and no issue was taken by the parties on the appeal to her Honour’s construction of that defence.

168    First, with respect to the reference to “particular work”, Mortimer J observed that:

45. 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 para (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.

169    Secondly, her Honour considered that:

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 Pt 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.

(emphasis added)

170    Thirdly, the word “inherent” was considered by the High Court in X v Commonwealth [1999] HCA 63; 200 CLR 177 (X v Commonwealth) in the context of the predecessor provision to s 21A and s 21B, namely, s 15(4) of the DDA. Section 15(4) then provided that it was not unlawful under s 15(2) for an employer to discriminate against an employee on the grounds of the employee’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.

171    In X v Commonwealth, Gummow and Hayne JJ (with whose reasons Gleeson CJ agreed at [8]) held that the reference to “inherent” requirements in s 15(4)(a) invited attention to the “characteristic or essential requirements” of the “particular employment” as opposed to “some identified type of employment…” (at [102] (emphasis added)). It followed, their Honours held at [103], that in applying s 15(4)(a) “it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether an employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others”: see also McHugh J [31]-[35]. In so holding, the majority in X v Commonwealth followed Qantas Airways v Christie [1998] HCA 18; 193 CLR 280 (Qantas Airways) concerning the construction of s 170DF(2) of the Industrial Relations Act 1988 (Cth). That section created an exception to the proscription on termination of an employee’s employment on the ground among other things of age “if the reason is based on the inherent requirements of the particular position.”

172    Notwithstanding the changes in wording and structure effected by the 2009 amendments earlier discussed, there is no reason to suppose that the Parliament intended to attribute a different meaning to the concept of the “inherent requirements of the particular work” in the context of the successor provision to s 15(4), namely s 21A (quoted at [103] above). In this regard, the reference to the word “work” serves, in my view, to further emphasise the need to focus upon the specific circumstances of the individual’s work as opposed to a generic position or position description.

173    In the fourth place, with respect to the exclusions in s 21A(4) of the DDA from the defence in s 21A(1), Mortimer J in Watts observed at [49] that:

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. …Were it otherwise, the anti-discrimination provisions might substantially fail to achieve their objective.

174    Finally, as the onus of establishing that the defence applies lies upon the employer, it is incumbent upon the employer not merely to establish that the aggrieved person is unable to carry out the inherent requirements of the particular work to which the discrimination relates but also to establish that the discrimination is of a nature that falls within the limited parameters of the defence. Yet as I later explain, this aspect of the defence appears to have been overlooked by CSNSW at the trial and was barely addressed on the appeal. Rather, the assumption appears to have been that it was sufficient merely to establish that Ms Huntley was unable to undertake the inherent requirements of the position of a PPO.

6.3.4.2    Key findings with respect to the defence under s 21A

175    With respect to the defence under s 21A of the DDA in relation to the period when Ms Huntley returned to her PPO position, the primary judge found that CSNSW’s defence suffered from the difficulty of asking the Court to draw an inference as to the content of the inherent requirements of Ms Huntley’s PPO position at Campbelltown and how they were understood and operated at relevant times from generic documents, rather than establishing by direct evidence what the inherent requirements of Ms Huntley’s position were at relevant times.

(1)    First, his Honour held that:

237. …CSNSW sought in submissions to draw attention to what it now says were the inherent requirements of the PPO position at the relevant times. That is, as at late August/early September 2009, and, including the time after the RTWP “ceased” until Ms Huntley commenced her role at CIG.

238. For example, CSNSW referred to “R3” which was said to show the relevant inherent requirements and that the attached “guidelines” and the policies of CSNSW informed that understanding of the position (“guidelines”) [i.e. the CSNSW Community Offender Services Guidelines for Supervision (2012) and coversheet] and as explained by Mr Morgan (at [5] of his affidavit).

239. The difficulty for CSNSW before the Court is that it referred to various documents and asked the Court to determine what the inherent requirements of the PPO position at Campbelltown Office were on or around August/September 2009. While I agree with Ms Huntley’s submission that the relevant question is ultimately one for the Court, that consideration must derive from, and must be probative of, the evidence as to the situation at the relevant time, how this was understood by relevant managers, and how it was applied and implemented in relation to Ms Huntley’s circumstances. That is, the consequences for Ms Huntley given her disabilities. As Ms Huntley correctly, in my view, submitted, CSNSW’s submissions did not derive from evidence presented by any relevant witness as to the inherent requirements at the time, or how they understood and operated at that time. Rather, CSNSW has sought now to review or analyse documents which are said to derive from the relevant periods and to make submissions from that current analysis as to the matter of inherent requirements as they should have been at the relevant times.

(emphasis added)

(2)    As a consequence, his Honour found at [240] that “one important factor, amongst others, emerges”:

That is, CSNSW’s election to argue what these documents could mean, instead of relying on relevant evidence of what they meant, or could have meant, at the relevant time, is that Ms Huntley was denied the opportunity to cross-examine any witness for CSNSW as to what the inherent requirements were at the relevant time and how the requirements were understood by the relevant personnel and how they in fact operated.

(3)    The result, his Honour held at [241], was that:

…there was no relevant evidentiary context, which Ms Huntley was able to properly test before the Court. What CSNSW now says was done by it, for Ms Huntley on her return in August/September 2009, is left without a base on which to conduct the analysis as to the relevant inherent requirements and CSNSW’s subsequent conduct in light of those requirements at the relevant times.

(4)    Secondly, the primary judge identified a number of difficulties with the position description upon which CSNSW also relied as identifying the inherent requirements of Ms Huntley’s PPO position at [268]-[272], relevantly:

…it is, on any plain reading, a generic document in relation to “jobs” or positions having the “position title” of “Probation and Parole Officer” at “various” locations (see page 390 of the exhibit to CH1).

The document lists “Selection Criteria” to be addressed by applicants for the position, and sets out “Key Challenges and Influences” and “Key Outcomes/Accountabilities”. Further, there is a long list of “Capabilities” descriptions which relate to the “Capability” level identified.

The difficulty with this document is its generic nature. Its limitation now is the lack of evidence as to its specific relevance to the question of the inherent requirements of Ms Huntley’s PPO position at the Campbelltown Office. This can be illustrated with the fact that the list of “capability” descriptions, includes descriptors which are otherwise said not be relevant to the PPO position (for example, Level 4 Capability Descriptors).

I find that the “Position Description” in the document, and relied on by CSNSW now, is not a clear statement of the inherent requirements of Ms Huntley’s PPO position at the Campbelltown Office at the relevant time.

It may be that the inherent requirements are subsumed, whether in part or even in whole, or can be derived from this document.

(5)    Thirdly, the primary judge found at [287] that “[a]gain there is no evidence before the Court that all of the elements in the position description, in the circumstances actually before the Court, are part of the inherent requirements of the PPO position as CSNSW now submits.”

(6)    Finally, while CSNSW relied on assumptions by relevant managers to support the proposition that the PPO to whom a particular offender is assigned must conduct home visits in relation to that offender, no corroborative documents were provided in support of that proposition (at [289]). Rather the primary judge found that “what remains is that, as agreed by Ms Caruana in her evidence, the proposition for which CSNSW now contends concerning home visits was ‘assumed’ to be the case” (at [290]).

6.3.4.3    Did the primary judge err in rejecting CSNSW’s defence under s 21A?

176    It was not issue that Ms Huntley was unable to undertake field visits during any of the relevant periods. The question is rather whether the primary judge erred in rejecting CSNSW’s defence under s 21A of the Act that field or home visits were an inherent requirement of her particular work.

177    On the appeal, CSNSW submits first that the primary judge made no finding as to whether fieldwork was an inherent part “of the duties of a PPO”. With respect, that misconceives the issue. The issue is whether, because of the disability, Ms Huntley would be unable to carry out the inherent requirements “of the particular work” even if reasonable adjustments were made for her. As Mortimer J held in Watts at [45], this requires a focus upon the position, tasks, service or conduct that Ms Huntley performs in her workplace.

178    Secondly, in my view it cannot be said that the primary judge erred in failing to make a finding as to whether fieldwork was an inherent part of Ms Huntley’s position as a PPO in the Campbelltown office. To the contrary, fairly read it is apparent that the primary judge found that the defence was not established because CSNSW had failed to discharge its onus under s 21A of the DDA of establishing that fieldwork was an inherent requirement of Ms Huntley’s work. In effect, his Honour found that it was not sufficient to discharge that onus to rely upon documents containing generic descriptions of what a PPO position at various locations involved in line with the principles earlier explained (see above at [171]). As a result, his Honour did not reach the question of whether the discrimination fell within the exclusions under s 21A(4) to the inherent requirements defence.

179    Thirdly, CSNSW submits that, in failing to find that fieldwork was an inherent part of the duties of a PPO, the primary judge “concentrated on dealing with the wrong question, namely whether the various officers of [CSNSW] considered what were the inherent duties of a PPO.” In this regard, CSNSW submits that:

A correct approach to the resolution of this question [i.e. whether the defence in s 21A was established] required in the first instance an enquiry as to the requirements of the particular employment. This will begin by identifying the terms and conditions of service, which [Ms Huntley] required not only in terms of tasks and skills but also the circumstances in which those tasks were to be done, and skills used. The terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment.

(emphasis added)

180    In support of its submission, CSNSW relied upon the decisions in Qantas Airways and X v Commonwealth. Ms Huntley, however, pointed out that the decision in X v Commonwealth considered s 15(4) of the DDA (which was, it will be recalled, the predecessor to s 21A) and is differently worded and structured.

181    That notwithstanding, for reasons I have already given, I do not consider that the Parliament intended that a different meaning be given to the concept of the “inherent requirements of the particular work” in s 21A from that attributed to the equivalent concept in former s 15(4). Moreover, the decisions on which CSNSW relies do not in any event go so far as to limit a consideration of the inherent requirements of the particular employment to “the terms of the employment contract, the nature of the business and the manner of its organisation”. Thus in Qantas Airways at [1], Brennan CJ said in the passage on which CSNSW relies that:

… I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.

182    However his Honour then cautioned:

In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country and applying antidiscrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.

183    Subsequently in X v Commonwealth, Gummow and Hayne JJ held at [105], that:

The inquiry that was required in the present case was an inquiry about what were the requirements of the particular employment. As we have said, that would begin by identifying the terms and conditions of service which revealed what the Army [being the appellant’s employer] required of the appellant, not only in terms of tasks and skills, but also the circumstances in which those tasks were to be done and skills used. From there the inquiry would move to identify which of those requirements were inherent requirements of the particular employment to the performance of the “tasks or skills for which [the appellant was] specifically prepared”.

184    In my view, the passages relied upon ultimately go no further than to suggest that an inquiry into the inherent requirements of particular work of a particular individual is a fact specific one which is ultimately directed towards ascertaining those requirements which are essential to the particular employment undertaken by that individual in which (where there is a formal employment contract) the contractual terms are relevant but are not the end of the inquiry. This understanding accords with the meaning of “inherent” as construed in those decisions (see further above at [171]-[172]) and, subsequently under the amended legislative scheme, with the approach adopted by Mortimer J in Watts.

185    In any event, as explained above, the primary judge found that CSNSW sought to rely upon generic documents applicable generally to PPO officers in various locations in support of its defence under s 21A, as opposed to evidence of the inherent requirements of Ms Huntley’s work as a PPO in the Campbelltown office based upon her employment contract, the nature of the business and the manner of its organisation (see above at [86], [153] and [175]). That this was the way in which CSNSW put its case is apparent from its submissions in closing at trial. Specifically, in closing submissions then counsel for CSNSW submitted that:

HIS HONOUR: Okay. So your submission is Mr Morgan tells Ms Huntley that the situation can’t continue.

MS JOWETT: That’s right.

HIS HONOUR: Okay. All right.

MS JOWETT: And that’s because he has taken into consideration the other – well, first of all, the probation and parole officer position, as described in the position description, along with the other policies of the respondent, and in particular R3, that was provided to you as an exhibit, which relates to guidelines for supervision.

HIS HONOUR: The community intervention? It’s that one?

MS JOWETT: That’s right.

HIS HONOUR: Yes. Yes.

MS JOWETT: And you will recall that Ms Huntley gave evidence about what a community intervention is, and that involves, depending on the risk assessment, and you will see there’s a chart at the back of that as well, about high risk right through to low risk, and how those people should be supervised, and when home visits should occur, and the like. And there’s a table there in relation to that, which I think your Honour saw, and hopefully you’ve got a coloured one now, because there was some issue about ---

HIS HONOUR: Multi-coloured.

MS JOWETT: Excellent. So that is something that we would rely on to form the basis of what were the inherent requirements of the position of PPO. As well as the position description. And we would say that Mr Morgan, as the manager, was managing that 20 or so people at that time, and as the head of the Campbelltown cluster, he made a decision that, given the workloads, that the other PPOs, and Ms Borg, and anyone else in the office who was undertaking those duties, that they were working extra hours and it wasn’t fair on them. Now of course the applicant says they weren’t working extra hours, but I did cross-examine her about that. She did give evidence that she was, at that time, because she was returning to work, working mostly between the usual office hours of 9 to 5, and she wouldn’t have known if people were working longer hours if she wasn’t there within those periods. She simply just didn’t know.

And so the evidence is that they were working longer hours, and Mr Morgan, as the manager, decided that the whole office had to be managed in a way that was fair and equitable. And on top of that, he gave evidence that the applicant had returned to work; he understood that she was returning to work with an illness; that it was going to be managed in the way that they had reasonably adjusted in the return to work plan that’s annexed to his affidavit. But also she was taking what he considered more than usual sick leave. Now that’s not to say that she didn’t provide medical certificates. And again, the respondent does not cavil with the fact that the applicant has had genuine illnesses and she has always provided – without exception, I believe, your Honour – medical certificates. That she has always provided them and obviously has had this illness for a, you know – initially the Crohn’s disease and then later on, again in a different time period, she is diagnosed with hypersomnolence.

So no one says that she doesn’t have these illnesses, and that she isn’t unwell, but she then, during that return to work period, is taking a lot of leave. And Mr Morgan also gave evidence that it’s difficult when someone is – when they’re sick – they don’t know when they’re going to be sick, and so if someone has a part time job and they’re coming to work every Monday, Tuesday and Wednesday, for example – this is what we say – then you can plan around that. You know that that person is going to be at work on a part time basis over a series of days. But when someone is ill, and it is obviously a situation where someone wakes up in the morning and has no idea that they’re going to be ill – it’s not something that they’re planning. Of course not. But they can’t say ahead of time “I’m sorry Bob, I’m not going to be there tomorrow.” They just don’t know from one day to the other.

(Emphasis added)

186    In circumstances therefore where generic documents were relied upon to prove the inherent requirements of Ms Huntley’s work, it was not sufficient merely to assume, as did CSNSW at trial, that all of the matters set out in such documents constituted inherent requirements of Ms Huntley’s work at Campbelltown. The insufficiency of that approach is highlighted when the context in which those documents applies is appreciated. In this regard, as then counsel for CSNSW submitted in closing submissions at the trial without objection, “[t]here are thousands of employees in corrective services. There are 700 PPOs.” Rather, as the primary judge held, in order to rely upon those documents for that purpose, evidence from the officers working with Ms Huntley and, in particular, those responsible for supervising her work, was necessary to establish the status of those documents, which of those duties applied to Ms Huntley to her work at the relevant time, and to identify those duties which were essential and why. So much is necessary so as to afford Ms Huntley the opportunity to meet that case and provide a basis for cross-examination, as the primary judge held, and to afford the primary judge the capacity to make a reasoned judgment about what were the inherent requirements of Ms Huntley’s work.

187    Fifthly, as the passage quoted at [185] above demonstrates, it is true to say that CSNSW’s submissions at trial tended to conflate the question of what were the inherent requirements of a PPO position, on the one hand, with the pressure that Ms Huntley’s RTWP placed on other staff, whether it was fair and equitable to those other staff for such accommodation to continue, and the part that those considerations played in CSNSW’s decision that Ms Huntley could not continue in the PPO position, on the other hand. The latter demonstrated at a generalised level that the RTWP, which relieved Ms Huntley from field duties among other things, was causing some difficulties for co-workers. In this regard, Ms Huntley gave evidence that Mr Morgan had said to her that he could not sustain the RTWP because of how busy the office was and among other things that she understood that the Campbelltown was very short-staffed at that particular time. In any event, to suggest that adjustments for Ms Huntley’s disability may cause difficulties for other workers does not establish that home visits were an inherent requirement of her work at Campbelltown (even though such evidence may corroborate direct evidence about the inherent requirements of particular work where such evidence is led). Indeed, then counsel for CSNSW at trial accepted in closing submissions that Ms Huntley’s role could in fact be broken up, even though she submitted that that “wasn’t ideal” for the people that worked at Campbelltown or the community or security issues, and was not sustainable over the long term in light of complaints, et cetera. Added to this, Mr Morgan accepted in cross-examination that there was no policy that said that home visits must be undertaken by the PPO who was allocated a particular offender.

188    In the sixth place, it was not put in cross-examination to Ms Huntley that all or any specific part of the generic documents relied upon constituted essential elements of her work as a PPO at Campbelltown, or even that fieldwork or home visits constituted such an element.

189    As such, notwithstanding the best efforts of counsel for CSNSW on the appeal to cast a different complexion on passages in the evidence to put a case that CSNSW had established that field visits were an inherent requirement of Ms Huntley’s position, the fundamental difficulty for CSNSW is that it is apparent that CSNSW is now seeking to depart from the manner in which it ran its case below. It is not an error for the primary judge to have failed to rule upon a case that was not put. No error has therefore been established in the primary judge’s finding that CSNSW had failed to establish that fieldwork was an inherent requirement of Ms Huntley’s position and therefore that CSNSW had not established the defence under s 21A of the Act; nor in his findings as to the impact that the way in which CSNSW ran its case had upon Ms Huntley’s capacity to cross-examine its witnesses about the inherent requirements of her position and how they operated.

190    Finally, there is an additional reason why CSNSW cannot in my view succeed in its appeal against the decision below in so far as it concerned the defence under s 21A(1). It will be recalled that ground 6 of the further amended notice of appeal challenging the primary judge’s findings in this respect, alleges that his Honour should have found that CSNSW had a “complete defence” to Ms Huntley’s claim by reason of her inability to undertake an inherent requirement of her duties as a PPO, namely, the field work component of her duties (emphasis added). However in order to establish that error, it would have been incumbent upon CSNSW to demonstrate that the discrimination suffered by Ms Huntley fell within the scope of that defence. In this regard as earlier explained, save for discrimination in determining who should be offered promotion or transfer, s 21A(1) does not provide a defence to discrimination falling within s 15(2)(b) or (d) (see  21A(4) (quoted at [104] above)). Whether the discrimination therefore falls within the scope of the statutory defence ultimately turns upon the proper characterisation of discrimination.

191    There were, however, no submissions made by CSNSW at trial dealing with this element of the defence notwithstanding that Ms Huntley alleged discrimination contrary to s 15(2)(b) and (d) of the DDA from the outset, which ought to have alerted CSNSW to the need to address this element of the defence: see above at [73]. Furthermore in written and oral opening submissions at trial, Ms Huntley alleged not only that CSNSW discriminated against her in terms of the terms and conditions of her employment, but also by denying or limiting her access to opportunities for promotion, transfer or training or any other benefits and by subjecting her to other detriment. Ms Huntley also alleged in her written opening that CSNSW’s actions in removing Ms Huntley from secondment with CIG posed a significant detriment, and in oral opening, that “using her accrued leave entitlements without notice and placing her on leave without pay were clearly detriments within the term of 15(2); significant financial detriment.” Again, in oral closing submissions at trial, Ms Huntley made submissions as to alleged failure to afford to Ms Huntley the benefits of employment to be afforded access for promotion or training, to be able to come to work safely and securely, to be provided with a position for which she is fit to perform and to be paid for her work, and the detriment of “being forced to stay home” (as opposed, I would interpolate, to being able to attend work).

192    Despite the issue being squarely raised by Ms Huntley, CSNSW did not engage with the issue of characterising the discrimination at the trial so as to demonstrate that, if discrimination should be found to have occurred, it fell within the scope of the statutory defence; nor, with respect, even assuming that the primary judge erred in failing to find that fieldwork or home visits were inherent requirements of Ms Huntley’s work, did the submissions by CSNSW on the appeal seek to characterise the conduct found to constitute discrimination so as to demonstrate that the discrimination fell within the ambit of the defence in s 21A of the Act. Yet the failure to make reasonable adjustments including a long term program for Ms Huntley in the period leading up to her secondment to CIG and the putting in place only of a short-term adjustment over that period, clearly was not discrimination in the terms or conditions of employment (s 15(2)(a)) or dismissal (s 15(2)(c)); nor did it constitute a denial or limitation on access to opportunities for promotion or transfer (s 15(2)(b)). As such, it would seem to constitute a denial of a benefit or subjection to a detriment within the meaning of s 15(2)(b) and (d), therefore falling outside the scope of the statutory defence.

6.3.5    The failure to make reasonable adjustments to enable Ms Huntley to continue in the CIG position (the work from home issue)

6.3.5.1    The issues

193    While no specific mention is made in the further amended notice of appeal of the primary judge’s findings with respect to the cessation of Ms Huntley’s secondment to the CIG position, CSNSW proceeded on the basis that those findings were challenged by the general grounds alleging a failure to identify a comparator (which has earlier been considered), the alleged incorrect imposition of an onus on the appellant to prove that it made reasonable adjustments, and the alleged failure to identify the specific adjustments that would be deemed reasonable adjustments.

194    Even generously read, the further amended notice of appeal does not challenge the primary judge’s findings with respect to circumstances leading to the termination of Ms Huntley’s secondment to CIG. In particular, while the further amended notice of appeal takes issue with the finding by the primary judge that CSNSW had not demonstrated that fieldwork was an inherent requirement of a PPO and therefore with the primary judge’s findings rejecting the defence under s 21A of the DDA in that context (grounds 4 and 5), no such contention is raised with respect to the CIG position. Nonetheless, submissions were made by CSNSW apparently on the assumption that it was open to it to challenge the primary judge’s findings with respect to the defence under s 21A(1) and given that there is some ambiguity about CSNSW’s position on this issue I consider it appropriate to address it.

6.3.5.2    Key findings below

195    With respect to the period when Ms Huntley was seconded to CIG (the CIG position) from 13 September 2010 to 10 May 2011, the primary judge found that CSNSW had failed to make reasonable adjustments to allow Ms Huntley to continue in the CIG secondment. His Honour’s reasons for so finding can be summarised as follows.

(1)    Contrary to CSNSW’s submissions, Ms Huntley’s request to work from home was a request for a reasonable adjustment to her work (reasons below at [347] and [350]). No decision was made regarding Ms Huntley’s request to work from home (reasons below at [324]). “On its face, this was not an unreasonable request given that CSNSW’s own policy [i.e. the Reasonable Adjustment Policy] contemplated this as an example of a reasonable adjustment”: reasons below at [320]. This matter became “subsumed” into the stated concerns about sick leave and the 30 minute travel restriction (at [324]).

(2)    In her emails on 22 and 23 February 2011, Ms Hillyard inquired only if “alternative placement” or “medical assessment” options had been arranged for Ms Huntley (reasons below at [325]). There is no evidence that any action was taken by CSNSW in response to Ms Hillyard’s email (at [326]). Ms Hillyard did not explain why the request from home the subject of the follow-up email from Ms Huntley on 6 May 2011 was still seen as a live issue when it had been overtaken by the events of February 2011 (reasons below at [329]). The primary judge then found that:

330. In any event, this provides a further basis to reveal that CSNSW failed to properly address Ms Huntley’s disability while she was on secondment at CIG (as distinct from the PPO position) as from February 2011. Further, it is to be remembered that there is no evidence that during this period, that any assessment was made that Ms Huntley could not carry out these requirements of the CIG position which may have some basis to support the defence before the Court pursuant to s.21A of the DDA.

331. I say “may” here because it was not clear in CSNSW’s submissions that that defence was meant to be pursued in relation to the CIG placement. CSNSW’s closing submissions (at [17]) make reference only to the PPO position in this context.

332. In any event, this may be explained by CSNSW’s oral submissions that no reasonable adjustments were required with the CIG position because the requirements of that job were a “perfect fit” with what Dr Edwards, Dr Watson Ng, gastroenterologist, and Dr Crowle (at that time, in relation to the first report) had said in their respective reports.

As to the last point, the primary judge found that “CSNSW admitted that it did not make any reasonable adjustments to Ms Huntley’s work situation up to the time of the decision not to extend the secondment and the duration of the time Ms Huntley remained at CIG.” (reasons below at [318]; see also at [349]).

(3)    CSNSW also contended that the obligation to make reasonable adjustments was rendered futile because the inherent requirements of the job could not be met, relying upon s 21A of the DDA (reasons below at [318] and [350]). However, no assessment was made by Dr Crowle of Ms Huntley’s capacity to undertake the inherent requirements of the CIG position; the first and second reports addressed only the PPO position (reasons below at [352]-[353]). The primary judge found at [355] that “…no consideration of any reasonable adjustments to the CIG position were conducted. The relevant evidence of CSNSW’s witnesses agreed with this. No consideration of the inherent requirements of the CIG position was undertaken.”

(4)    While Ms Nicholson gave evidence that CIG security restrictions could have been compromised if Ms Huntley worked from home, this was not an element in the decision not to extend the secondment at CIG (reasons below at [323]).

(5)    CSNSW’s reliance in support of the s 21A defence upon the alleged failure by Ms Huntley to request reasonable adjustments was not relevant to the elements of that defence even if (contrary to the primary judge’s findings) no such request had been made by Ms Huntley (reasons below at [350]-[351])

(6)    The primary judge also accepted Ms Huntley’s submission that CSNSW focussed on the view that because the CIG position was not Ms Huntley’s substantive position, that is, she was on secondment, no reasonable adjustments were required in relation to that position (reasons below at [349]-[350]).