FEDERAL COURT OF AUSTRALIA

Berry v State of South Australia [2017] FCA 702

ORDERS

THE COURT ORDERS THAT

1.    The joint application for orders by consent dated 5 May 2017 be reopened.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    Sarah Berry is a former member of South Australia Police. Throughout her appointment she suffered from a severe gynaecological disorder which necessitated her absence from work for periods of time exceeding her paid leave entitlements. The disorder is a disability within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (DD Act).

2    Ms Berry was appointed as a member of South Australia Police by the Commissioner of Police under the Police Act 1988 (SA). The Commissioner is an agent or instrumentality of the Crown in right of South Australia. For convenience, I will refer to Ms Berry’s employer as SAPOL. Ms Berry alleges that SAPOL, by the conduct of certain other members acting on its behalf, discriminated against her and harassed her in contravention of s 15(2)(b) and (d) and s 35(1) of the DD Act respectively.

3    The parties, by their advisers, have signed two statements of agreed facts and have consented to the making of orders in the proceedings, including declaratory orders to the intended effect that, by reason of the facts as agreed, the respondent contravened the DD Act in relation to Ms Berry between late 2012 and March 2014.

4    The orders sought are set out in minutes of order by consent dated 5 May 2017. The proposed declaratory relief is in the form set out at paragraphs 13 and 19 below.

THE POWER TO GRANT DECLARATORY RELIEF

5    If satisfied that there has been “unlawful discrimination” by a respondent in contravention of the DD Act, the Court may make such orders as it thinks fit: Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), s 46PO(4). The orders may include declaratory orders to the effect that the respondent has “committed unlawful discrimination”: AHRC Act, s 46PO(4)(a). The phrase “unlawful discrimination” for these purposes includes any act, omission or practice that is unlawful under Pt 2 of the DD Act. Importantly, not all acts amounting to discrimination under Pt 2 of the DD Act are unlawful: see s 21A.

6    As a general principle, the Court will not make declarations on admissions or upon consent of the parties unless it is satisfied of the facts “by evidence”: BMI Ltd v Federated Clerks Union of Australia [1983] FCA 403; (1983) 51 ALR 401 at 412 – 413. In addition, the Court should be satisfied that it has jurisdiction to make the declarations and that the terms of the declaration are appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79. The Court should give “close attention” to the form of the declaration, particularly when proceeding on the basis of a statement of agreed facts: Commonwealth v Restar [2016] FCA 657 at [28] (Flick J). As Greenwood J said in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148 at [21]:

… if a declaration is to be made in exercise of the discretionary power, it must recite the rights of the parties with respect to the final resolution of the matter in controversy with precision rather than represent some form of shorthand summary of the outcome of the controversy such as reciting that a party contravened s 45(2)(a)(ii) of the Act or s 45(2)(b)(ii), or that a party did not contravene s 46 of the Act. In principle, the formulation of the declaration ought properly reflect the essence of the conduct constituting the declared state of affairs and not simply be framed in terms of the language of the section itself which begs the question of the conduct (Rural Press Ltd v ACCC (2003) 216 CLR 53 at p 91 [90], Gummow, Hayne and Heydon JJ).

the AGREED FACTS

7    Evidence is not required to prove the existence of the facts as agreed in the two statements of agreed facts to which I have referred: Evidence Act 1995 (Cth), s 191(2).

8    The first statement of agreed facts is dated 26 September 2016 and was amended in the course of submissions on the same day. Although lengthy, it is appropriate that I set out that statement in full:

Employment

1.    Ms Berry commenced employment with the respondent in the form of South Australia Police (SAPOL) as a cadet at the SAPOL Academy in August 2009 and was a member of South Australia Police (‘SAPOL’) as defined in section 3 of the Police Act 1998 (South Australia).

2.    From April 2010 until July 2011 Ms Berry was a Probationary Constable stationed at Elizabeth working in Elizabeth patrols.

3.    On or about 21 July 2011 Ms Berry was permanently appointed to the position of Constable and remained stationed at Elizabeth patrols.

4.    From 21 July 2011 to about late 2011 or early 2012 Ms Berry was a Constable working in Elizabeth patrols. In or about late 2011 or early 2012 Ms Berry moved from Elizabeth patrols to the Family Violence Investigation Section (‘FVIS’) at Elizabeth.

5.    As a Constable in FVIS at Elizabeth, Ms Berry’s hours of were as follows [sic].

5.1.    Pursuant to a two week roster on which Ms Berry worked shifts from 0700 hours to 1530 hours (morning shift) and from 1300 hours to 2130 hours (afternoon shift).

5.2.    Performed on a two week repeating roster which comprised Monday to Wednesday, morning shift, Thursday to Sunday afternoon shift, Monday and Tuesday off, Wednesday to Friday morning shift, and Saturday and Sunday off.

5.3.    Ms Berry’s duties were victim case management, offender follow up and child interviews.

6.    From around April 2013 until November 2013 the Respondent seconded Ms Berry to alternative duties at the Elizabeth Police Station and subsequently extended that secondment.

7.    Ms Berry’s duties with SAPOL between 31 March 2014 and 18 October 2015:

7.1.    were limited to complying with her obligations under the Workers Rehabilitation and Compensation Act 1986 (until 30 June 2015) and then the Return to Work Act 2014 (from 1 July 2015);

7.2.    because Ms Berry suffered from an illness or disorder of the mind caused by her employment with SAPOL;

7.3.    which SAPOL determined was compensable under those Acts; and

7.4.    which was caused by SAPOL’s conduct relating to Ms Berry’s condition (defined hereunder).

8.    Ms Berry applied for and was awarded a new position in a different state government agency which she has worked in since 19 October 2015.

The Disability

9.    Before being employed by SAPOL Ms Berry told SAPOL that she had a past medical history of laparoscopy, hysteroscopy and dilation and curettage.

10.    Ms Berry was diagnosed in or about July 2012 with endometriosis and severe dysmenorrhea (‘the condition’).

11.    The condition was a disability within the meaning of section 4(I) of the Disability Discrimination Act 1992 (‘the disability’) (‘DDA’).

12.    Promptly after diagnosis, Ms Berry told her line manager:

12.1.    about the diagnosis;

12.2.    about the nature of the condition; and

12.3.    that she would need sick leave from time to time, including to have surgery because of the condition.

13.    The disability caused Ms Berry severe abdominal pain from 2009 until early 2012.

14.    Symptoms of the disability required Ms Berry to take sick leave from time to time, from 2009 until early 2012, including in connection with menstruation.

15.    From early 2012 the symptoms of the disability worsened. Ms Berry experienced more significant abdominal pain, and pain in her lower back and legs, which necessitated Ms Berry taking sick leave, both paid and unpaid.

16.    Thrice in 2012 Ms Berry was hospitalised because of the disability, including surgery in July 2012. There were complications from the surgery.

17.    Ms Berry suffered from the disability during the course of her employment with SAPOL and continues to suffer from the disability.

Actions contravening ss 15(2)(d) and 35(l) of the Disability Discrimination Act 1992

18.    The actions described in paragraphs [20] to [33] below were taken in circumstances where SAPOL repeatedly confirmed that SAPOL had no concerns about Ms Berry’s work performance, and;

18.1    were taken by SAPOL because of and in relation to Ms Berry’s disability; and

18.2    would not have been taken by SAPOL in relation to a person whose circumstances were not materially different and who did not suffer from Ms Berry’s disability;

18.3    had no proper basis or good reason; and

18.4    caused Ms Berry hurt, distress, humiliation and anxiety and denied Ms Berry the enjoyment of her employment; and

18.5    involved a failure to make reasonable adjustments for Ms Berry; and

18.6    involved treating Ms Berry less favourably than a person without the disability as a consequence of the failure to make reasonable adjustments; and

18.7    involved SAPOL requiring Ms Berry to comply with requirements or conditions which, because of the disability, Ms Berry was unable to comply with and which disadvantaged Ms Berry; and

18.8    involved a failure to make reasonable adjustments for Ms Berry which would have enabled Ms Berry comply [sic] with the requirements or conditions, and such failures to make reasonable adjustments disadvantaged Ms Berry.

19.    Following Ms Berry’s surgery on or about July 2012 Ms Berry informed members of the Family Violence Investigation Section (‘FVIS’) that she required sick leave as a consequence of her condition.

20.    Between late 2012 and early 2013 SAPOL failed to make any adjustment for Ms Berry such that she could work in the Family Violence Investigation Section (FIVS).

20.1    The Respondent did not take any steps to ensure that other staff members were available to deal with urgent work that Ms Berry was unable to attend to when she was on sick leave due to the disability.

20.1.1    Ms Berry had a genuine need for sick leave.

20.1.2    The failure to resource the undertaking of urgent work had an obvious adverse effect on Ms Berry.

20.2.    The Respondent failed to address complaints made by Ms Berry’s colleagues in relation to Ms Berry’s absences from work due to the disability.

20.3.    Ms Berry repeatedly requested the Respondent to address complaints made by Ms Berry’s colleagues about her absence on sick leave.

20.4.    Ms Berry experienced hostility in her work environment due to her need to take sick leave.

20.5.    The Respondent proposed transferring Ms Berry to a role involving night shifts (which was contraindicated by her disability).

21.    SAPOL repeatedly required Ms Berry to explain the nature and effects of her extremely personal disability, being a gynaecological condition, when Ms Berry had previously provided all relevant and appropriate information.

22.    In the course of requiring Ms Berry to repeatedly explain the nature and effects of her disability, SAPOL repeatedly challenged the legitimacy of Ms Berry’s condition and told Ms Berry that her condition was not a legitimate basis for her to take sick leave to the extent taken by her.

23.    The events mentioned in paragraphs [21] and [22] increased in frequency and intensity from April 2013.

24.    Between April 2013 and November 2013 Ms Berry’s line manager required Ms Berry to role play managing Ms Berry with Ms Berry’s disability: and said words to the effect that;

24.1    Ms Berry was ‘a burden’ on SAPOL because of the disability; and

24.3    because of the disability Ms Berry was frustrating, using harsh and inappropriate language in that conversation;

24.3    Ms Berry needed to increase her pain threshold in relation to the disability;

24.4    Ms Berry should attend for work irrespective of the symptoms of the disability;

24.5    to prove to SAPOL that Ms Berry wanted to be part of SAPOL Ms Berry should drag herself to work and throw up in the toilet all day because of the disability; and

24.6    in any other organisation Ms Berry would not have a job because of the disability.

25.    SAPOL required Ms Berry to continue to explain the nature and effects of the disability when Ms Berry was sobbing uncontrollably and obviously in extreme distress.

26.    In April 2013 SAPOL required Ms Berry to submit to a psychological examination, notwithstanding Ms Berry’s request that she not be required to submit to a psychological examination because her condition was physical and not psychological.

27.    In September 2013, SAPOL again required Ms Berry to submit to a psychological examination, notwithstanding that:

27.1    Ms Berry’s condition was a physical and not a psychological condition; and

27.2    no such requirement was indicated as a result of the previous psychological examination.

28.    SAPOL required Ms Berry to provide original medical certificates (rather than copies) in respect of any sick leave (which SAPOL had never previously required of Ms Berry).

29.    SAPOL sought to place Ms Berry on SAPOL’s Employment Management Register (a Register SAPOL used to identify and manage employees who are unable to fulfil the inherent requirements of their positions).

30.    SAPOL told Ms Berry that Ms Berry needed to demonstrate an appropriate level of attendance and commitment.

31.    From around April 2013 until November 2013, due to Ms Berry’s disability, the respondent seconded Ms Berry to alternative non-operational duties, and subsequently extended that secondment:

31.1    without seeking or considering appropriate medical evidence about Ms Berry’s disability and her capacity to undertake operational duties; and

31.2    in circumstances where the available medical evidence indicated that Ms Berry was medically fit for full operational duties.

32.    When proposing the secondment as set out in paragraphs [6] and [31] above, the Respondent did not make adjustments to allow Ms Berry to fulfil the proposed secondment in circumstances where the Respondent had the capacity to make adjustments to enable Ms Berry to fulfil the duties of the proposed secondment.

33.    From around April 2013 until November 2013, whilst Ms Berry was on secondment, the Respondent:

33.1    provided Ms Berry with a limited range of tasks in comparison to the tasks previously undertaken in FVIS and in comparison to other operational roles; and

33.2    limited the opportunities for promotion or transfer by reason of the limited nature of the duties assigned to Ms Berry; and

33.3    failed to make reasonable adjustments to ensure that Ms Berry was appropriately managed in relation to her disability.

9    The second statement of agreed facts was prepared in response to the Court’s invitation to clarify the legal route by which the named respondent was said to be liable for the actions of the individual members of SAPOL mentioned in the first agreed statement. The second statement contains the names of the officers concerned. I consider it appropriate that their names be redacted in these reasons. The second statement otherwise provides:

ADDITIONAL FACTS TO BE AGREED FOR THE PURPOSE OF S 191 OF THE EVIDENCE ACT 1995

3.    Without derogating from the Statement of Agreed Facts filed by the parties on 26 September 2016 the parties agree the following, as a matter of fact for the purposes of section 191 of the Evidence Act 1995.

3.1    The applicant was a member of SAPOL and employed by the Crown in right of the State of South Australia at all material times.

3.2    The applicant’s superior officers, [names redacted], (the Superior Officers) were members of SAPOL and employed by the Crown in right of the State of South Australia at all material times.

3.3    The Superior Officers were persons acting or purporting to act on behalf of the Employer within the meaning of section 15(2) of the DDA.

3.4    There exists a relationship of master/servant between the applicant’s Employer (namely, the respondent) and the Superior Officers.

3.5    The Superior Officers were senior in rank to the applicant, pursuant to the Police Regulations, 1999 (SA) (repealed) at all material times and, by virtue of their seniority, were authorised to supervise, direct and issue orders to the applicant in the performance of her duties.

3.6    The Superior Officers’ conduct relevant to this matter was engaged in on behalf of the respondent and was within the scope of the Superior Officers’ actual or apparent authority.

3.7    Insofar as the contravening conduct must be engaged in with a particular state of mind to establish the contraventions alleged, the Superior Officers and thus the respondent had that state of mind. For the avoidance of doubt the parties agree that the respondent Employer by its Superior Officers engaged in the contravening conduct because of and in relation to Ms Berry’s disability.

3.8    The reference to SAPOL in the Statement of Facts filed on 26 September 2016 at paragraphs [18] to [33] means the respondent Employer by its Superior Officers.

HARASSMENT

10    Section 35(1) of the DD Act is contained in Div 3 of Pt 2. It provides:

(1)    It is unlawful for a person to harass another person who:

(a)    is an employee of that person; and

(b)    has a disability;

in relation to the disability.

11    The word “harass” is not defined. It bears its ordinary meaning which, without being exhaustive, involves a series of actions causing vexation and worry. It may be that the word imports a lesser or higher standard. It is not necessary in this case to consider the outer limits of its meaning.

12    A declaration is sought in the following terms:

1.    The Applicant was harassed by certain Superior Officers of SAPOL acting on behalf of the Respondent in contravention of section 35(1) of the Disability Discrimination Act 1992 (Commonwealth) between late 2012 and March 2014 in relation to and because of the applicant’s disability (being endometriosis and severe dysmenorrhea) by:

1.1    repeatedly requiring the applicant to explain the nature and effects of her extremely personal disability, being a gynaecological condition, when the applicant had previously provided all relevant and appropriate information, including when the applicant was sobbing uncontrollably and obviously in extreme distress, with no proper basis or good reason; and

1.2    challenging the legitimacy of the applicant’s disability with no proper basis or good reason; and

1.3    twice requiring the applicant to submit to a psychological examination with no proper basis or good reason; and

1.4    alleging that the symptoms of the disability should be disregarded and were not a proper basis to take sick leave with no proper basis or good reason;

1.5    alleging that the applicant was not fit for full operational duties with no proper basis or good reason; and

1.6    unreasonably failing to consider medical evidence which indicated that the applicant was medically fit for full operational duties; and

1.7    unreasonably requesting that the applicant address complaints made by her colleagues in relation to her absences from work due to her disability; and

1.8    unreasonably addressing the applicant in a manner and in terms which caused the applicant hurt, distress, humiliation and anxiety; and

1.9    unreasonably failing to address complaints made by the applicant’s colleagues about the applicant’s absence from work due to the disability.

Consideration

13    On the basis of the agreed facts, I am satisfied that a declaration substantively to the effect of paragraphs 1.1 to 1.4 and paragraphs 1.7 to 1.9 should be made. Those paragraphs are to the effect that Ms Berry was harassed by colleagues who wrongly denied the legitimacy of her disability or the nature or severity of her symptoms. I am satisfied that the conduct referred to in those particular subparagraphs is established on the agreed facts and does indeed constitute harassment within the ordinary meaning of the word.

14    However, I would not in my discretion make an order incorporating paragraphs 1.5 and 1.6 of the proposed declarations. Unless clarified or qualified, the declaratory relief sought in those paragraphs cannot be comfortably reconciled with the circumstance that Ms Berry’s disability rendered her unable to work at all on the days on which her symptoms were acute. When Ms Berry’s paid leave entitlements were exhausted, she was granted unpaid sick leave at SAPOL’s discretion. I am not presently satisfied that Ms Berry was, during those periods, “fit for full operational duties” and nor am I satisfied that it would constitute harassment for a senior member of SAPOL responsible for her management to assert as much.

15    Although it is agreed that SAPOL did not have any issues with Ms Berry’s work performance, I do not extrapolate from that agreed fact any concession from SAPOL that Ms Berry’s medical condition had no impact on her ability to fulfil her duties during times when her symptoms were acute. Clearly it did.

16    It may be that additional facts may be agreed so as to avoid the tension between the agreed fact that medical evidence indicated that Ms Berry was “fit for full operational duties” and the fact that her disability necessitated apparently unpredictable absences from the workplace for periods that were long enough to exceed her paid leave entitlements. Although the parties agree that a medical opinion suggested Ms Berry was fit for full operational duties, the Court does not have the medical opinion before it and is not obliged to adopt the opinion as proof of Ms Berry’s actual fitness for duties. Nor is it appropriate in the circumstances that the Court accept the parties’ evaluation of SAPOL’s conduct in relation to the medical opinion as “unreasonable”, particularly where other agreed facts tend to contradict the agreed effect of the medical opinion.

17    In the absence of proof or an agreement of additional facts, I am not satisfied that relief in terms of paragraphs 1.5 and 1.6 should be granted.

DISCRIMINATION

18    A declaration is sought in the following terms:

2.    The Applicant was discriminated against by certain Superior Officers of SAPOL acting on behalf of the Respondent in contravention of section 15(2)(b) and (d) of the Disability Discrimination Act 1992 (Commonwealth) between late 2012 and March 2014 in relation to and because of the Applicant’s disability by:

2.1.    unreasonably failing to make any adjustments to the work of the applicant in the Family Violence Investigation Section; and

2.2.    repeatedly requiring the applicant to explain the nature and effects of her extremely personal disability, being a gynaecological condition when the applicant had previously provided all relevant and appropriate information, including when the applicant was sobbing uncontrollably and obviously in extreme distress, with no proper basis or good reason; and

2.3.    unreasonably proposing to transfer the applicant to a role which was contraindicated by the applicant’s disability; and

2.4.    twice requiring the applicant to submit to a psychological examination with no proper basis or good reason; and

2.5.    unreasonably seconding the applicant to nonoperational duties, thereby limiting the applicant’s opportunities for promotional transfer; and

2.6.    unreasonably failing to make adjustments to address the inappropriate management of the applicant in relation to her disability; and

2.7.    unreasonably failing to consider medical evidence which indicated that the applicant was medically fit for full operational duties,

all of which denied the applicant the enjoyment of her employment.

19    The proposed declaration is limited in its terms to a contravention of s 15(2)(b) and (d) of the DD Act. Section 15 provides:

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

(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.

20    The proposed declarations do not expressly specify whether the discrimination against Ms Berry was direct or indirect. The concepts of direct and indirect discrimination are defined in s 5 and s 6 of the DD Act respectively as follows:

5    Direct disability discrimination

(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.

6    Indirect disability discrimination

(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:

(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 does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(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.

21    I turn first to the relief sought in paragraph 2.1 of the proposed declarations.

22    Although the proposed declaration refers to SAPOL’s failure to make “any adjustments” the agreed facts are to the effect that SAPOL failed to require Ms Berry’s colleagues to perform Ms Berry’s urgent work when she was absent from the workplace. If that be the content of the agreed failure, then it should, in my view, be made clear in the words of the declaration itself.

23    The Court should otherwise proceed with caution in respect of this aspect of the application, particularly in circumstances where Ms Berry had no legal entitlement to be granted repeated episodes of unpaid sick leave. I consider there to be a risk in the present case that a declaration stated in too general terms may be misunderstood by employers as implying the existence of a legal obligation under the DD Act to grant unpaid sick leave to an employee suffering from a disability once the employee’s legal entitlements to other forms of leave are exhausted. As that is not the case advanced by the parties, particular care should be taken to ensure that the form of declaratory relief does not overstate SAPOL’s obligations.

24    Some further preliminary observations may be made about the factual and legal context in which the declaration is sought.

25    At times when her paid leave entitlements were exhausted, Ms Berry was in fact granted unpaid leave at SAPOL’s discretion. It may be fairly inferred from the agreed facts that the unpaid leave was granted at intermittent and unpredictable times when Ms Berry was incapable of performing any of the duties of her position. It may also be fairly inferred that Ms Berry’s disability was ongoing. The adjustments referred to in the proposed declarations are therefore assumed to be steps that SAPOL would be required to continue to take potentially for the entire term of Ms Berry’s employment.

26    Further by way of legal context, a member of SAPOL is liable to be dismissed if he or she is incapable of performing his or her duties by reason of a physical or mental disability or illness: Police Act, s 45(1). Dismissal in those circumstances would not constitute unlawful discrimination if the requirements of s 21A of the DD Act are satisfied. It relevantly provides:

21A Exception—inherent requirements

Inherent requirements

(1)    This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discrimination relates to particular work (including promotion or transfer to particular work); and

(b)    because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

(2)    For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

(a)    the aggrieved person’s past training, qualifications and experience relevant to the particular work;

(b)    if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;

(c)    any other factor that it is reasonable to take into account.

…

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

…

27    Section 21A is not a defence to be invoked by a party at his or her discretion. It is a defining provision to the effect that certain acts amounting to discrimination (as defined in s 5 and s 6) are not unlawful.

28    The language of s 21A is concerned with adjustments an employer should reasonably make so that the person with the disability may carry out the inherent requirements of his or her own particular work. A reasonable adjustment would not include an arrangement by which other employees (and not the person with the disability) were made to perform that work.

29    I emphasise that the parties seek a declaration of contravention of s 15(2)(b) and (d) in respect of which s 21A does not apply except to the limited extent provided for in s 21A(4). However, the broader legal context to which I have referred renders it all the more necessary for the parties to agree or prove facts that make it clear precisely how either s 15(2)(b) or s 15(2)(d) have been contravened by virtue of SAPOL’s failure to make the adjustment referred to in the agreed facts and precisely how the elements of the definition of discrimination are satisfied in either instance.

30    I do not consider a loss of subjective enjoyment of employment to be sufficient of itself to satisfy the requirements of either s 15(2)(b) or (d), particularly if the loss of enjoyment is founded upon an incorrect belief as to the rights and obligations of the employer and employee. In short, it remains unclear to the Court how s 15(2)(b) or s 15(2)(d) are enlivened on the facts. The Court should take care to ensure that facts that satisfy s 15(2)(a) are not mistakenly categorised as facts satisfying s 15(2)(b) or (d) so as to preclude consideration of s 21A. It is not suggested that there has been any deliberate mischaracterisation in this case, only that there is ambiguity about how s 15(2)(b) or (d) are said to apply, and that the ambiguity is unsatisfactory in all of the circumstances.

31    Further, the Court should be able to assess for itself whether SAPOL failed to make a “reasonable” adjustment within the meaning of s 5(2), if that is the provision relied upon. I am not presently satisfied that the adjustment would in all of the circumstances be a reasonable one, especially given the apparent short notice with which Ms Berry’s leave was taken and the circumstance that her intermittent absences would apparently have continued indefinitely had the employment relationship not otherwise ended. Much would depend upon the frequency of the leave, the nature of the duties, the degree of urgency of the work, the operational requirements of the division in which Ms Berry worked, the advantage of the work being performed by a single person and the resources of SAPOL (which I am not prepared to assume are unlimited).

32    In light of the legal and factual matters to which I have referred, I am not prepared to act upon the “facts” agreed in paragraph 18 of the first statement of agreed facts, particularly in relation to the question arising under s 5(2)(a) of the DD Act: did the failure to make the relevant reasonable adjustment have the effect that Ms Berry was, because of her disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different? In my opinion, more particularity and clarity is required. For the purpose of the declaration sought in paragraph 2.1 of the proposed declarations, it is not sufficient that the parties agree in a generalised way that this essential criterion (involving a potentially complex mix of fact and law) is satisfied.

33    My disinclination to make the declaration is informed in part by the circumstances that the employment relationship between the parties has ceased and that the proceedings between the parties are properly categorised as a private law dispute. I consider there to be little utility in making declarations of contravention, except to the extent that the declarations may serve the public interest of informing other litigants that the facts as proven or agreed constitute a departure from the standards imposed upon employers by the DD Act. That informative purpose will not be advanced if the declaration is stated with too much generality or otherwise in terms that overstate SAPOL’s legal obligations toward its employees.

34    Paragraphs 2.2 and 2.4 of the proposed declarations concern some of the same conduct forming the subject matter of Ms Berry’s harassment claim. I am satisfied that the conduct subjected Ms Berry to a detriment within the meaning of s 15(2)(d) of the DD Act. The concerns I have expressed in relation to paragraph 2.1 of the proposed declarations do not affect my consideration of paragraphs 2.2 and 2.4 to the same extent. It is appropriate that declarations substantially to the effect of those paragraphs be made.

35    I am satisfied that the conduct referred to in paragraph 2.3 of the proposed declarations constitutes indirect discrimination against Ms Berry within the meaning of s 6 of the DD Act. However, in my opinion, the declaration should be expressed in a way that more closely addresses the elements of the definition in s 6 and that specifies the detriment Ms Berry is said to have been subjected to for the purposes of s 15(2)(d), if that is the provision relied upon.

36    In the absence of further agreed facts or evidence I am not satisfied that an order in terms of paragraph 2.5 of the proposed declarations should be made. The lawfulness and reasonableness of SAPOL’s conduct is for the Court to decide. As I have mentioned, I am not persuaded on the agreed facts that Ms Berry was fit for operational duties, having regard to her intermittent inability to perform any duties at all. The resolution of these issues may depend upon what the parties intend to convey by the phrase “operational duties”, in which case the facts should be qualified to make their agreed position clear.

37    The proposed declaration in paragraph 2.6 may be made, however I consider it appropriate that the declaration specify the particular adjustments that SAPOL failed to make in a factual sense, and that it otherwise be made clear how s 5(2) of the DD Act is fulfilled and which of s 15(2)(b) or s 15(2)(d) is relied upon.

38    I will not make a declaration in terms of paragraph 2.7 for the reasons already given in relation to the content of the medical evidence.

ORDERS

39    In expressing my disinclination to make some of the declarations, I am mindful of the efforts the parties have made to resolve their dispute by negotiated agreement. I also accept that the parties may have concluded their oral submissions with the reasonable expectation that orders would be made in the form in which they had been agreed. In their more recent submission they have also sought the opportunity to make further submissions and to agree additional facts if the Court is unwilling to grant the relief sought.

40    In all of the circumstances, it is appropriate that I treat the application for declaratory relief and other substantive orders as resolved only in part. To the extent that I have declined to make the orders sought, that aspect of the joint application will be reopened to enable the parties the opportunity to advance further agreed facts, to make further submissions and to amend the proposed form of orders if they are so advised.

41    To the extent that I am prepared to make declarations substantially in terms of the minutes of order, as indicated in these reasons, I would in any event propose minor amendments to the suggested form of words. The parties should be heard as to the final form of orders. It is appropriate that I make declarations at the conclusion of the hearing after the parties have been given the opportunity to agree further facts and make further submissions if they are so advised.

42    The minutes of order dated 5 May 2017 include other substantive proposed orders for the final disposition of the proceedings. I will invite further submissions in relation to those orders for reasons that will be delivered orally.

Associate:

Dated:    21 June 2017