Abi v Boral Australia Gypsum Ltd t/as Boral Plasterboard - [2011] NSWADT 225

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: ABI v Boral Australia Gypsum Ltd t/as Boral Plasterboard [2011] NSWADT 225
Hearing dates: 17 and 18 February; 7 March 2011
Decision date: 21 September 2011
Jurisdiction: Equal Opportunity Division
Before: J Needham SC, Deputy President
A Lowe, Non judicial member
E Hayes, Non judicial member
Decision:
1.The Tribunal orders:-
a) dismiss that part of the claim which deals with direct discrimination;
b) dismiss that part of the claim which deals with victimisation.

Catchwords: Disability discrimination - anonymisation due to community attitude to Hepatitis C
Disability discrimination in employment - stood down on medical grounds - return to work plan - whether delayed on grounds of discriminatory treatment
Victimisation - treatment after making claim benefitted applicant - whether victimisation
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1977
Cases Cited: Commissioner of Corrective Services v. Aldridge, [2000] NSWADTAP 5
State Transit Authority v. Sloey [1999] NSWSC 47
Purvis v. New South Wales (2003) 217 CLR 92
Laycock v. Commissioner of Police [2006] NSWADT 261
Penhall-Jones v. State of NSW [2007] FCA 925
Nicholls & Nicholls v. Director-General of the Department of Education and Training (no 2) [2009] NSWADTAP 20
Haines v. Leves (1987) 8 NSWLR 442
Category: Principal judgment
Parties: ABI (Applicant)
Boral Australian Gypsum Limited (Respondent)
Representation: Counsel
P Thew (Respondent)
Surry Hills Legal Centre (Applicant)
Herbert Geer (Respondent)

File Number(s): 101093
Publication restriction: Section 75 of the Administrative Decisions Tribunal Act 1997 applies

reasons for decision

The complaint and the application

EQUAL OPPORTUNITY DIVISION (J. Needham SC, Deputy President, A. Lowe, Non-Judicial Member, E. Hayes, Non-Judicial Member):

The applicant, known pursuant to a suppression order as "ABI", made a complaint to the Anti-Discrimination Board against his employer, the respondent. That complaint was exhibit A in the proceedings and was made on 20 May 2010. On 23 July 2010 the applicant requested that the complaint be referred to this Tribunal, and the complaint was received on 4 August 2010.

The complaint to the Anti-Discrimination Board was made on the basis of discrimination pursuant to ss 49A, 49B and 49D of the Anti-Discrimination Act 1977 ("the Act"). The complaint cover sheet noted the complaint to cover the period 20 May 2009 to 19 May 2010. However, the ADB complaint form (at p 9 of Ex A) clearly states, in answer to the question "When did the discrimination or harassment happen?" that it began on 21 April 2010 and was "ongoing". Accordingly, the Tribunal will regard the complaint as being for the period 21 April 2010 and continuing.

The complaint was one of disability discrimination in the area of employment. The summary of the complaint by the President of the Anti-Discrimination Board includes the following:-

"... [the applicant] alleges that [the respondent] unlawfully discriminated against him on the ground of disability, in the area of employment, when after undergoing tests in hospital as part of his Hepatitis C treatment, it prevented him from returning to work, despite his being able to perform the normal duties of his position.

... the respondent asserts that the [applicant] had himself raised concerns that he may not be fit for work and that following a medical assessment, the complaint was advised by the respondent's National Health and Injury Management Coordinator that the respondent had concerns about his working around machinery and that he would require a medical clearance before returning to work. The respondent alleges that the [applicant] did not supply any medical certificates prior to lodging his complaint with the Board. ..."

The applicant suffers from Hepatitis C and has done so since 2005. He has worked for the respondent as a process worker for some 27 years.

Pre-trial directions included the filing of Points of Claim (which were filed on 27 September 2010) (Ex B) and Points of Defence (filed 15 October 2010) (Ex 1). The Points of Claim attempted to expand the Complaint somewhat by extending the complaint to include a complaint of victimisation pursuant to s 50 of the Act.

Relief sought by the applicant

The orders sought by the Applicant, as set out in the Points of Claim, are:-

a) did the respondent breach s 49D of the Act by:-

i suspending the applicant without pay from 21 April 2010 (noting that the respondent began paying the applicant although he was not working as from 5 May 2010);

ii requiring the applicant to attend at various medical appointments on 22 April, 6 May, 15 June, 30 August and 22 September; and

iii limiting the basis of the applicant's working conditions on and after his return to work on 17 June 2010?

b) Did the respondent breach s 50 of the Act by subjecting the applicant to victimisation on or after 20 May 2010, by:-

I deferring the applicant's return to work until 17 June 2010;

Ii forcing the applicant to attend for further and ongoing medical treatment?

The relief sought in the Points of Claim were:-

a) Damages for:-

i loss of income;

ii pain, humiliation, stress and anxiety caused by the respondent's actions.

b) the applicant also sought from the Tribunal a direction restoring the applicant to his previous duties.

In the complaint to the Board, the applicant sought $5,000 in compensation for the discrimination alleged by him. No particulars of damage were supplied in relation to the application to the Tribunal.

The relevant legislation

The following sections of the Act were (relevantly) dealt with during the hearing:-

4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

....

disability means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Part 4A Discrimination on the ground of disability

Division 1 General

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49C What constitutes unjustifiable hardship

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:

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

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

Division 2 Discrimination in work

49D Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

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

(c) by dismissing the employee, or

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

(3) Subsections (1) and (2) do not apply to employment:

(a) for the purposes of a private household, or

(b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or

(c) by a private educational authority.

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

(5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

Part 5 Other unlawful acts

50 Victimisation

(1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Part 6 General exceptions to this Act

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or

(e) (Repealed)

The hearing, and interlocutory issues

The hearing was listed for two days on 17 and 18 February 2011. Although each set of legal practitioners made valiant efforts to finish the matter in two days, ultimately it was not possible and the matter was listed to complete the evidence and to make submissions on 7 March 2011. Further written submissions were lodged and the matter was finally completed on 1 April 2011.

The proceedings were recorded by the Tribunal and transcribed by the respondent. The daily transcripts were admitted into evidence as exhibits 16, 17 and 18 for each of the three days respectively. Days 1 and 2 were transcribed with consecutive page numbers and are referenced in these reasons for decision as T1, and day 3 commences at page 1 and is referenced as T2.

An application was made for suppression of the applicant's name which application was granted. Reasons for this were given by Deputy President Needham SC on 18 February 2011 and the following orders made:-

a) the Applicant be referred to in the Reasons for Decision by a pseudonym;

b) that the disclosure of the Applicant's name, address, picture or any other material that identifies or may lead to the identification of the Applicant be prohibited;

c) that the parties be restrained from doing any other thing that identifies or may lead to the identification of the Applicant.

The transcript does not anonymise the names of the parties and any use of the transcript is covered by the above order.

Given the suppression order, which was made on the basis of the stigma attached to Hepatitis C in the community (evidence of which was given by Dr Kwok at T1:57-8), some details which may identify the applicant have been referred to in less than specific terms, and the staff of the respondent, including witnesses, have been referred to by their initials rather than their full names.

At the outset of the hearing, the applicant indicated that he would rely upon indirect, as well as direct, discrimination. As that claim had not before been made, and it was not included in the Points of Claim, the hearing proceeded on the basis of the claim was one of direct discrimination only. During the discussion of this issue, counsel for the respondent indicated that they had come prepared to meet the victimisation claim despite its not being part of the complaint to the Board, but "reserved their position" in relation to that claim.

After the first two days of hearing, each party served and filed written submissions prior to 7 March 2011. In the submissions filed on behalf of the applicant, the claim was reformulated to substitute for the original claim of direct discrimination on the basis of a disability being Hepatitis C, two claims:-

a) under s 49B(2) (on the basis that the actions taken were on the ground of a characteristic that "appertains generally" to persons with Hepatitis C, or are "generally imputed" to persons who have that disability; and

b) under s 49A(b), for discrimination on the ground that "fatigue" is a disability within the meaning of s 4, and that the discrimination was on the basis that fatigue was something attributed to the applicant by reason of the side-effects of his treatment.

Each of these new grounds, and the victimisation pleading, were objected to by the respondent. The matter was argued and the following orders were made:-

a) leave given to the applicant to amend the complaint to include a complaint of victimisation (as foreshadowed in the Points of Claim and during the preliminary discussion of the matter on the first day of hearing); and

b) leave refused to the applicant to amend the complaint by adding breaches of 49B(1)(a) on the basis of fatigue, and of 49B(2) on the basis of the side-effects of the treatment for Hepatitis C.

Reasons for the decisions on the pleadings were given orally by Deputy President Needham SC on 7 March 2011. We note that no formal amended Points of Claim was filed but that the parties made submissions on the basis of the original Points of Claim.

The applicant, in its written submissions filed on 31 March 2011 (referred to below as "AS4"), that is, after the end of the evidence and after the final day of hearing on 7 March 2011, sought to reformulate the case on two grounds:-

i) to add a case of direct discrimination, on the basis that the applicant was not afforded procedural fairness by reason of the respondent failing to comply with the respondent's own Post Injury Management Policy; and

ii) to seek to incorporate into the "disability" aspect of the case the treatment for Hepatitis C pursuant to s 49B(2).

The respondent, in its final submissions (referred to below as "RS2") made the point that the Applicant is bound, generally speaking, by the parameters of the initial complaint to the Board and by the Points of Claim. This is correct. In our view it would be both substantively and procedurally unfair to allow an effective change of position in written submissions, after the evidence has closed, and where no cross-examination was afforded to the respondent on these issues.

Questions to be determined

After reading the submissions, and considering the evidence, the Tribunal is of the view that the relevant questions to be asked are:-

a) As set out in the Points of Claim, did the respondent breach s 49D of the Act by:-

i) suspending the applicant without pay from 21 April 2010 (noting that the respondent began paying the applicant although he was not working as from 5 May 2010);

ii) requiring the applicant to attend at various medical appointments on 22 April, 6 May, 15 June, 30 August and 22 September; and

iii) limiting the basis of the applicant's working conditions on and after his return to work on 17 June 2010?

b) Did the respondent breach s 50 of the Act by subjecting the applicant to victimisation on or after 20 May 2010, by:-

I deferring the applicant's return to work until 17 June 2010;

Ii forcing the applicant to attend for further and ongoing medical treatment?

c) Did the respondent breach s 50 of the Act by subjecting the applicant to victimisation on or after 20 May 2010, by:-

i) deferring the applicant's return to work until 17 June 2010;

ii) forcing the applicant to attend for further and ongoing medical treatment?

The facts

It is not in contention that:-

a) the applicant at all times suffered from a disability within the meaning of s 4 of the Act, being Hepatitis C;

b) the applicant was suspended on leave without pay from 21 April 2010;

c) the applicant was required to, and did, attend a medical practitioner, Dr Pathirana, from time to time (including on the dates set out in the Points of Claim);

d) the applicant provided Dr Pathirana with a certificate dated 5 May 2010 from his treating doctor, Dr Kwok, on 6 May 2010;

e) On 19 May 2010 Dr Pathirana provided a Fitness For Duty certificate which provided for the applicant to return to work, with recommendations that he avoid shift and overtime work, and that he report any change in his condition immediately.

f) on 20 May 2010 the applicant complained to the Anti-Discrimination Board, which complaint was also faxed to the respondent on that day. The complaint contained a copy of Dr Kwok's letter of 5 May 2010;

g) the applicant returned to work on 17 June 2010 in a role which was different from his previous role, and which was subject to a restriction pursuant to a pre-existing shoulder injury; and

h) the applicant did not work either shift work, or overtime, on and from 17 June 2010.

Accordingly, the main areas of factual contention are:-

a) the terms of a notification to the respondent by the applicant in or about April 2011. The applicant said he disclosed to the respondent by speaking to his team leader, RG, that he was Hepatitis C-positive, and that he was going to be undergoing treatment, and that he may be suffering some side effects from the treatment. The respondent said that while the team leader had been notified of the upcoming treatment in March 2010, the precipitating event was a conversation that RG had with the applicant where the applicant said that he couldn't work, that he felt like a "walking zombie", and that he couldn't read or see words on the paper; and

b) the conduct of, and reasons for, the respondent restricting the applicant's duties after his return to work (to a non-shift position, without driving a forklift, and where he was under supervision).

The factual narrative which follows is compiled from the written and oral evidence of the various witnesses, the observations of the Tribunal as to the credibility of those witnesses, and the documents which were tendered. Where there is some discrepancy between the accounts this is noted, and the version which is accepted is indicated.

The applicant worked in one of the respondent's factories. Before April 2010 he worked a "rotating shift" system, as a member of team which rotated around various shifts, which were designated "day" (5.30 am to 1.30 pm), "afternoon" (1.30 pm to 9.30 pm) and "night" (9.30 pm to 5.30 am) shifts. Some shifts were more lucrative than others. He would also regularly work overtime which was a block of four hours at the beginning or (more commonly) at the end of each shift, giving him a twelve-hour working day. His duties included monitoring the manufactured product, overseeing the stacking of it, ensuring that it was smoothly processed onto a pallet, and then stacked on the forklift. He would then drive the forklift a short distance to the warehouse. He drove the forklift for about one minute each half-hour. He often worked twelve hours of overtime a week, either three blocks of four hours during the week, or an extra eight-hour Saturday shift.

The applicant filed a statement (Ex C). He was cross-examined. He presented as a person who was of average intelligence, clearly unhappy with his treatment by the respondent, and who clearly believed what he was saying. The Tribunal does not accept all of his evidence but does not by that wish to have it inferred that the applicant was consciously lying. The events were significant ones for him, and he may have remembered them in ways different from the people around him who were less emotionally invested in the eventual outcome. In addition, he was under the stress of his medical treatment when a number of the contested events took place, and this may have heightened the subjectivity with which he later recounted events.

There was a sub-issue relating to the credit of the applicant in relation to a worker who was electrocuted at the plant. The applicant said that he was first on the scene and assisted the worker, but that account was contradicted by others who said the applicant was not in attendance on the worker. The reason for the evidence being adduced by the applicant was, apparently, to show that the applicant was able to act quickly in times of stress (see below for the evidence of Dr Rowe on that point) but it became an issue as to the applicant's credit. There is some confusion between the various accounts, and no one account is inherently more credible than the others. The Tribunal is unable to make any specific use of this evidence in any way. Accordingly, the general finding as to the applicant's overall credit remains as set out in paragraph 27 above.

The applicant said he was first employed by the respondent in September 1986 and has been employed by it continuously since then. He was diagnosed with Hepatitis C in 2005. He then began treatment with pegylated interferon and ribavirin. This is a treatment which has the goal of eliminating the virus from a person's system. The treatment has side effects of "flu-like symptoms, fatigue, decreased appetite and irritability" (see attachment A, Ex C, letter from Vince Fragomeli, Clinical Nurse Consultant, Nepean Hospital). The applicant suffered, apparently fairly mildly, from these side effects in the 2005 treatment. Unfortunately that treatment was not successful and he relapsed with the virus re-emerging in May 2006. There is a failure rate of 30% for the applicant's form of Hepatitis C.

Mr Fragomeli was not called as a witness and so, where his evidence conflicts with other persons, who were cross-examined, his opinions, in particular that given some five years after the fact that the applicant "was able to continue to work in a full time capacity and perform his normal duties" must be examined with care.

Dr Kwok, the applicant's treating doctor, in his statement of 24 November 2010 (Ex D), said that during the 2005 treatment, the applicant:-

"tolerated treatment side effects very well. He experienced some mild degree of insomnia and lethargy, but these were not bothering him. There were no suggestions of the treatment affecting him to any significant degree in his activities of daily life. There were no reports of any difficulties with work."

(par [5], Ex D).

In cross-examination, the applicant agreed that he took 410 hours leave between March 2005 and February 2006 (ie, the time in which he took the first course of interferon), and 224 hours of leave the following twelve months. While it was put to him that he took all of that because he was ill, he did not agree with that. He said that his son was ill at that time and some of it was annual or rostered days off. While it is clear from the documentary evidence that that amount of time was taken, there is no clarity at all as to the reasons for the time being taken and the Tribunal is unable to conclude that the periods of time which the applicant did not work from early 2005 through to early 2007 were due, either entirely or largely, to his illness and/or treatment.

JG, the Production Manager of the area in which the applicant worked, gave evidence that the applicant was absent for 410 hours in the period 1 March 2005 to 28 February 2006, which hours were taken as annual and sick leave. In the equivalent period in 2004-5, he took 210 hours; in the equivalent period for 2006-7 he took 2007 hours (see par [33], Ex 3).

In 2009, the applicant sought treatment once more. He had by this time developed cirrhosis of the liver due to his Hepatitis C, but his condition was stable. He was asked by his treating team at Nepean Hospital to abstain from alcohol and to lose weight before beginning treatment, each of which he did. Dr Kwok said that his decision to enter into re-treatment in 2010 of the applicant was

"tipped towards the affirmative only because [the applicant] had tolerated side effects of treatment so well previously".

(par [8], Ex D). He was not cross-examined on this statement.

The 2010 treatment began on 5 April 2010, and was proposed for a term of 72 weeks. The evidence was that a second treatment of pegylated interferon and ribavirin was in effect the last shot at ridding the applicant of the virus, and if it did not succeed, then the disease would take its course. In addition, for the term of the treatment his liver would be given a chance to improve its function and the treatment would, even if ultimately unsuccessful, give him a better outcome on a temporary basis.

Dr Kwok said that he developed a "rapid response" with his virus being undetectable at only 6 weeks of treatment, an outcome which gave the applicant a good chance of a cure. Dr Kwok said that the applicant was, as reported to him, tolerating treatment well but:-

"reports some mild lethargy which is expected. Early in the course, he experienced insomnia, but was allocated to doing shift work. it is more likely that his difficulty sleeping and subsequent poor concentration at work was due to doing irregular hours rather than the antiviral treatment".

(par 10, ex D).

Dr Kwok was cross-examined on the applicant's tolerance for the treatment and the effect on his ability to concentrate. The doctor agreed that irregular working hours did affect concentration levels, but said that the ability to cope with the treatment and irregular working hours was a very individual reaction and a decision which he would normally leave to the patient. He said that the reported side effects by the applicant were "very mild" (T1:67).

In relation the applicant's overall health, Dr Kwok said that:-

"although [the applicant] has quite serious health problems, he is still relatively asymptomatic and is functioning at or close to a normal level of activity. [His] liver disease is quite advanced and he does indeed have cirrhosis. ... Pegylated interferon and ribavirin treatment for Hepatitis C have many side effects, but are rarely intolerable. Some effect on physical endurance and capacity can occur, but it cannot be prospectively evaluated. Lethargy is a very subjective symptom and depends on coping ability, and so each person is affected differently. ... In [the applicant's] case, my opinion is that treatment has affected his functional capabilities only minimally. I do not know the specifics of his employment, but my impression is that he would be able to carry out duties as long as they are not extremely physically demanding"

(par [16], ex D).

Dr Kwok gave some very useful oral evidence about the nature of Hepatitis C, and the way in which it was treated. He said that the applicant's blood tests showed that he was tolerating the treatment reasonably well, and did not have anaemia. Dr Kwok acknowledged that he was not a workplace safety expert, nor was he aware of the specifics of the applicant's job description, but he did say that from what he knew of the applicant's response to treatment and the general nature of the job, he was of the view that the applicant would be able to carry it out with minimal disruptions.

On 25 March 2010 the Nursing Notes of the Liver Clinic note that the applicant was advised to cease alcohol, in advance of commencing treatment in 3 weeks.

On 7 April 2010 the applicant attended the Liver Clinic and had some screening tests before commencing treatment. He was found to be suitable for treatment and the treatment commenced.

The applicant said that he disclosed to his team leader, RG, "in approximately April 2010" that he was Hepatitis C positive and that he would soon begin treatment. RG said that this conversation was "sometime in March 2010, I do not recall the precise date" (see par [3] of RG's statement made 13 October 2010, which became Ex 2). He said that the applicant asked him about whether he was aware of his "medical condition and treatment". He said that the applicant said to him, "last time I had the treatment it knocked me around a bit and I may need to use my sick leave while I recover".

In oral evidence, the applicant said that this conversation was definitely a warning of a possible effect (which the applicant described as possibly "feeling fuzzy"), rather than a notification that he was in fact "feeling fuzzy", as recalled by RG. The Tribunal accepts that the applicant's memory was likely to be the more correct, due to the timing of the conversation (which was probably before he started treatment).

On what was said in evidence to be 20 April 2010, but was in fact the beginning of the night shift of 19 April 2010, RG said he approached the applicant at the beginning of the shift (ie, at about 9.30 pm or shortly thereafter) to inform him that he would not be able to conduct the planned refresher training for the applicant that evening. RG said that the applicant reacted strongly to this and said, "I can't do it, you're going to force me to have 3 months off, why are you doing this to me?" RG replied, asking "what's the issue?" and said that the applicant then said:-

"I can't do the job. I look at the paper and it's blank, I'm crook and you keep pushing me, why don't you leave me alone, mate, this treatment, ask the guys I worked with last time, go on, ask them, I'm a walking zombie half the time and you force me into [plant B].

RG said he replied:-

"... we agreed we would review how you were feeling day by day. I didn't push you ... You were choosing to do overtime there. Tell me then what jobs you can do because you are confusing me. You can do overtime in [plant B] but on normal time it's [plant C]".

There was some further discussion about the different roles in the two areas of work, and then RG said the applicant said, "I look at the paper and it's blank, I can't focus, I can't do anything". RG said that the applicant then said:-

"My doctor asked me, how much time I have in annual leave, I said I would work through it, he thought I was crazy. You don't understand, I'm a walking zombie".

(par [7], Ex 2).

RG made some statements about his impression of the applicant; he said he was rolling his eyes, his speech was slurred, his posture was very poor and he looked tired. He said he was concerned about the applicant's comment that he was working against his doctor's advice, and he checked the applicant during his shift to ensure he was all right.

The applicant denied very firmly that he had said the words attributed to him (ie, that he couldn't read what was on documents in front of him, and that he was a "walking zombie"). He said he didn't say more than a few words to RG.

In the early hours of 20 April 2010, RG sent an email to two of his superiors, WC (National Engineering Manager) and JG (the Production Manager). The evidence was that JG reported to WC. The email was of intrinsic importance to the respondent's case and so it is set out in full, with anonymisation of persons and locations which may identify the applicant.

"Gentlemen,

I don't want the company to appear unsympathetic towards our employees' illnesses, on the other hand, I think I represent the company extremely well following all their policies but I do have concerns about one employee.

[Name of Applicant]. I can't be sure his illness is as serious as he states because it only affects him in one plant.

I apologised to [the applicant] that I could not keep us ( sic - "up") his retraining tonight but I was short on men. [The applicant] stopped me and said "I can't do it, you're going to force me to take 3 months off work, why are you doing this to me?"

I asked him, "what am I doing, giving you retraining to keep your level 5 skill up, really ... I thought you would have more respect for me, I help everyone keep their skill up, they're paid the higher rate, what's the issue"

He said, "I can't do the job. I look at the paper and it's blank, I'm crook and you keep pushing me, why can't you leave me alone, mate this treatment, ask the guys I worked with last time, go on ask them, I'm a walking zombie half the time and you force me into [plant B]".

I told [him], "... we agreed we would review how you were feeling day to day, I didn't push you into [the other location], you were choosing to do overtime there. Tell me then what jobs you can't do because you are confusing me. You can do overtime in [plant B] but on normal time it's [plant C].

[Applicant]: "alright fine, I won't do any overtime in [plant B] if you're going to use that against me. That's it".

Me: "... explain to me what you can't do in [plant B] and what you can do in [plant C].

[Applicant] Mate I can't do it, I look at the paper and it's blank, I can't focus, I can't concentrate, I can't do anything".

[Applicant] There is minimal fuss over here, nothing really happens. So you have cost me overtime and now if you put me in [plant B] you will force me onto leave as well. My doctor asked me, how much time have you got in annual leave, I said I would work through it, he thought I was crazy. You don't understand, I'm a walking zombie".

[The applicant] also tried to blame [another employee] for forcing him to [plant B] ... but I reminded [the applicant] that I knew that was not true, [the union representative] had discussed issue with me, [the applicant] was coming in for [plant B] so [another employee] could do [plant C] mixer as we know [the applicant] can't do mixer. [The applicant] wanted to come in.

I don't think [the applicant's] assessment is correct, we may need HR to speak with him and get a fitness for work complete. I think [the applicant's] restrictions change daily and they are really confusing to keep up with. Like when I asked him to do [plant B] mixer once, I was going outside restrictions because he can't do glue and pull paper. I was causing him pain yet he was the one choosing to do it often on overtime. I can't keep up with the applicant] any more. I'm getting suspicious he can't do level 5 and is being found out. I don't know how else to handle his illness and injury with revolving restrictions. I am concerned he shouldn't be here. He has 5.5 weeks leave but sounds like he needs 12 weeks.

While wanting to be compassionate, I really don't want to see the plant in an awkward position and with revolving restrictions. I find this case really hard to manage.

I have asked [another supervisor] how [the applicant] use to manage the last treatment. He told me he just slept most of the time. He told me [the applicant] could not stay awake and he also told me he was scared to repeat that to anyone else. Wants to stay out of it. Yet he made a strong point the company really should not have let him come to work".

The applicant was cross-examined on this email. He was unable to explain the contents of the email sent by RG to his superiors which is set out in the previous paragraph and its terms, but denied the content of the conversation happening as RG alleged. It was put to RG that words were not that the applicant was a "walking zombie", but rather that he had said that he might become "a bit fuzzy". RG was resolute that the words recorded in his email were the words used.

The applicant was adamant in his statement, and in his evidence, that "at no time told any supervisor that I felt incapable of performing or focusing on my work, and have not at any time felt incapable of doing same" (par [15], Ex C). The email from RG clearly contradicts that statement. Resolution of that conflict of evidence is central to the management of the applicant's employment after 20 April 2010.

Clearly this dispute as to what happened on the night shift of 19/20 April needs to be determined, given that it was the trigger for the meeting of 21 April 2010 which required the applicant to see Dr Pathirana and to be suspended without pay for a period.

It appears to the Tribunal that the existence of the email, sent, as it was, during the shift during which the reported incident occurred, has the weight to be given to a contemporaneous note and a business record. Clearly something happened to make RG talk to the applicant about his condition, and that was unlikely to have happened in a vacuum.

It was not put to RG that he had fabricated or invented the conversation, only that it did not happen, and that the words "walking zombie" were not used. No alternative theory of how that email came to exist was put forward. While in Ex 2 the email is extracted, it appears in other contexts as an annexure in an email thread and it certainly seems to have been sent by RG to the persons to whom it was addressed at the time stated on the email. There is nothing to suggest that it was either a fake, or that the conversation as set out within it was invented. The evidence given by RG was given forthrightly and honestly. A further factor in the acceptance of the conversation in the email is that it reflects the applicant's conversational style as demonstrated in cross-examination.

Accordingly, the Tribunal finds that the words alleged by the respondent in the email, particularly the words "I'm a walking zombie" and "I can't do the job" were said by the applicant during the night shift of 19/20 April to his shift team leader, RG.

On receipt of the email, WC emailed JG asking that he consult with HR, the National Health and Injury Management Advisor, who was mentioned in the email. HR said that she received the email on 20 April.

A meeting was held on 21 April 2010 to discuss RG's email. WC was of the view that the email "raised a serious health and safety risk for [the applicant] and other employees and I wanted a range of [the respondent's] management personnel to manage the issue" (Ex 7, par [6]).

The applicant said that he told HR that he was having no problems performing his duties and that he would not have any problems in the future, given his past experience. HR did not give much of the discussion in her statement (Ex 5) but elaborated upon it in oral evidence. She said that she didn't "get a history from him" and that her main concern, given what RG had written, was to have him assessed by Dr Pathirana. She agreed that she forwarded RG's email to Dr Pathirana, but that she didn't discuss with him whether the contents of that email were correct (although she "probably" asked him whether it was correct" - see T1:52) but it is clear that HR accepted the terms of RG's email and viewed the applicant as being "at risk". She said:-

"In the capacity that he was in he couldn't work in that capacity while he was not well. He was at risk". (T1:56)

JG said that he was aware of the meeting of 21 April, and that HR informed him after the meeting that:-

"[the applicant] has Hepatitis C and he is currently having treatment. Based on his comments to [RG], the medication seems to be having some side effects and making him drowsy."

HR made an appointment for the applicant to see Dr Pathirana, whom the applicant describes as "the company doctor" but who is in fact a doctor working at an occupational health and safety practice, Quality Occupational Health. Dr Pathirana saw the applicant on 22 April (the applicant having refused an appointment on 21 April and preferring 22 April). The applicant said that

"Dr Pathirana did not ask me any questions about the treatment I was on, or how I was progressing on it, or about my Hepatitis C condition. I had a brief interaction with him during which I advised him of the medication I was one. He conducted a basic faculty test, a comprehension test, and discussion about possible side effects of the medication. At no point did I indicate that I felt fatigued or was unable to perform my duties at work".

(see par [16], Ex C).

Dr Pathirana gave evidence that he saw the applicant on 22 April and following that he sent an email to HR on 23 April 2010 (attachment HR-1, Ex 5, and other places in the evidence including annexure SP-2, Ex 12). After setting out the history and noting a statement that the applicant told him that he "felt unwell with disturbance to his concentration and alertness. He states that his concentration and alertness fluctuates during the day and affects his work as well. ... He feels drowsy and nausea at times. I think all these symptoms are due to his anti-viral treatment and partly due to his condition as well", Dr Pathirana went on in his email of 23 April to say:-

"Considering his condition at this stage I have concerns over some of his duties at work particularly forklift driving and operating machinery. Lack of concentration and reduced alertness will impair his judgment ability and compromise his safety with performing these tasks. Therefore I recommend to avoid forklift driving and operating machinery ...

I have discussed these issues in detail with [the applicant] and he understands the risk associated with performing these tasks".

Again, it is vital to the applicant's case to resolve the conflict between what the applicant said he told Dr Pathirana, and what Dr Pathirana said he was told. While the doctor had conversations with HR about the applicant, the summary of his condition, the history, and the symptoms he was suffering appears to come directly from the applicant, in stark contrast to his evidence in par [16] of Ex C given above that Dr Pathirana did not ask him anything about his condition, his treatment or his history. We find it more likely that in the circumstances the information came from the applicant rather than from HR, given our findings as to Dr Pathirana's credibility and the general tenor of his evidence.

Dr Pathirana impressed the Tribunal as a conscientious, thoughtful professional who did not, despite the regular work provided to his employer by the respondent, come to give evidence with any axe to grind. We have no doubt that the words attributed to the applicant in the email of 23 April 2010 were indeed said to Dr Pathirana during the consultation on 22 April.

While Dr Pathirana agreed that he had had a conversation with HR prior to seeing the applicant, he said - and the Tribunal accepts - that he took note of the applicant's own history and symptoms.

As a result of the medical assessment which appears in the email of 21 April 2010, the applicant remained away from the workplace. Other duties were sought for him during that time.

On 27 April a meeting was held at the office of the respondent. In attendance were the Applicant, his support person Mr Ibrahim, the Manufacturing Manager WC, HR, and another attendee IA (Health, Safety and Environment Coordinator, who was not called to give evidence). Notes were taken of the meeting by Mr Ibrahim (annexure B, Ex C) and by WC (annexure WC"-2, Ex 7). WC gave evidence that he said to the applicant:-

"Following your comments to RG regarding feeling like a "zombie" and you being unable to concentrate we had asked for you to be reviewed by the company doctor for fitness to carry out your normal duties. The doctor has advised us that the symptoms you described are due to the side effects of your medication, and as such you should not be permitted near mobile plant and moving machinery whilst in your current state .... We do not believe you are currently safe in the workplace in your current condition and as such we have no other option than to stand you down".

The two sets of notes of the meeting reveal that the meeting canvassed various options, including the applicant's suggestion that he stop treatment in order to continue work (a suggestion unwelcome to the representatives of the respondent), a day job for the applicant (which the applicant said was met with the assertion that no day job was currently available), the applicant using long service leave, and applying for sickness benefits through Centrelink. The applicant said (and this was reflected in the union representative's notes) that there was nothing wrong with him and he could fulfil his work responsibilities. The applicant also said that he told the meeting that he needed his wages to survive. He was suspended without pay at this meeting. Neither set of notes mentions the RG email in specific terms, nor are the words "walking zombie" used in the notes at any point. However, WC said (Ex 7, par [24]) that the terms of the "walking zombie" email were discussed at that meeting. The applicant denies that he said those words at the meeting.

HR stated in her evidence that due to the email from Dr Pathirana, she told the applicant at the meeting on 27 April:-

"Dr Pathirana has informed me that considering your condition, at this stage he has concerns over some of your duties at work particularly forklift driving and operating machinery. Lack of concentration and reduced alertness will impair your judgment ability and compromise your safety with performing these tasks. Therefore Dr Pathirana recommends that you avoid forklift driving and operating machinery".

HR said that at that meeting, the options of long service leave and sickness benefits were discussed, and that she agreed to contact Centrelink for the applicant. She did so on 27 April 2010.

WC said that he heard nothing further from the applicant about using his sick leave and assumed he had decided against it.

HR was notified by the applicant on 3 May 2010 asking for a further appointment with Dr Pathirana, "to discuss my return to work plan".

On 3 May 2010 Mr Fragomeli, the Clinical Nurse Consultant, provided a letter "to whom it may concern" which included a Patient Information Sheet listing side effects of the treatment. The letter advised that the applicant was "coping well with his therapy, and I see no medical reason as to why he cannot continue to work in his current position and capacity. At this point he presents no risk to himself or others".

This letter was given to HR by the applicant. HR said that she read it and "formed the view that it did not constitute a proper medical assessment for the applicant, given that it was from a clinical nurse consultant and not his treating practitioner" (see Ex 6, par [6]). She said to the applicant that she required "a medical certificate or letter from your treating doctor". She said that this was in accordance with the respondent's Post Injury Management Procedure, clause 5.14, which requires a certificate from the worker's treating doctor.

On 4 May, HR provided the certificate from Mr Fragomeli to Dr Pathirana, along with the material on Hepatitis C that the Clinical Nurse Consultant had provided. In her covering email, which advised Dr Pathirana of an appointment for the applicant on 6 May, HR wrote:-

"... [The applicant] is adamant that he wants to RTW, to the point that he has suggested foregoing treatment. His manager when we all met, told [the applicant] that he would not be involved in a decision of this nature given all repercussions associated.

We have suggested that he remains at home whilst having treatment then returns to work.

[The applicant] does get side effects from his treatment that as you have concurred are not conducive to working around machinery and also shiftwork.

We cannot have him here at work whilst undergoing treatment, nor can we be a part of his discontinuing treatment in order to work.

Can you please complete his Centrelink paperwork and advise [him] that he needs to stay at home whilst having treatment?"

The Tribunal formed the view that HR was, from the time of the receipt of the email from RG on 19/20 April 2010, hostile to the idea of the applicant returning to work while his treatment continued. Her email to Dr Pathirana of 4 May made her attitude clear. She formed the view (ascribing it, wrongly, to Dr Pathirana) that the applicant would remain unfit for duties while he was in treatment for his Hepatitis C. It is to Dr Pathirana's credit that he assessed the applicant on the basis of his own observations and medical knowledge, and did not take the email of 4 May as a direction.

The applicant attended the appointment with Dr Pathirana on 6 May 2010. At this meeting he said that he gave Dr Pathirana a report from Dr Kwok dated 5 May 2010 (annexure "E", Ex C, also annexure SP-5 to the affidavit of Dr Pathirana of 10 November 2010, who said he received it at a time he did not recall but which was between 5 and 13 May). That report said, in full:-

"This letter is to certify [the applicant] is a patient at our Liver Clinic at Nepean Hospital. In my medical opinion, there is no reason why [he] should not be working.

He is receiving treatment for viral hepatitis which is ongoing, but the side effects are mild and would not affect his physical capacity for work.

He is also no risk to other work colleagues from the point of view of transmission.

It would be unreasonable to discontinue [the applicant]'s employment if it was related to his health issues. Please feel free to contact me for additional info if required".

It seems most likely that Dr Pathirana received this letter on or about 6 May 2010, but it is common ground that it was not provided to the respondent until the filing of the complaint to the President of the ADB.

Dr Kwok was cross-examined on his letter of 5 May. He agreed that he had not performed a workplace assessment nor was he aware of the specific requirements of the applicant's work. He maintained the view that he held that the best person to assess his ability to work was the applicant himself, in discussion with his employer. He said that the letter was less an assessment of specific safety to undertake the applicant's duties, but more "my opinion on his medical condition and how it affects his physical capacity and physical endurance" (T1:70).

At the meeting with Dr Pathirana on 6 May 2010, the applicant said that:-

"similar questions were asked by the doctor on this occasion to as on the previous occasion".

On 19 May 2010, Dr Pathirana completed a Fitness for Duty statement, which appears most legibly at attachment HR-2 to Ex 5. That statement consisted of five pages which cited the history. It noted that "[the applicant] coped well with the [2005] treatment, although he experienced some side effects including fatigue, decreased, flu-like symptoms and irritability. He stated he was able to continue work normally in a full time capacity at that stage." (p 2).

Dr Pathirana further said:-

"On 15 April 2010 he recommenced the anti-viral therapy with pegylated interferon and ribavirin. Following the first treatment he reported some well-known side effects of the medication including increased fatigability, decreased appetite and some drowsiness.

He stated that at work, he was feeling fatigued and drowsy and was not able to concentrate properly on his work. This was noticed by his supervisor who complained to the management regarding his safety at the workplace. [The applicant] told me that he has not been well since he stated the medication and has not been able to sleep property which resulted in more problems. He does shift work. This has given him more issues in relation to his sleeping pattern. He thinks that it has contributed a lot to his present situation".

In relation to the 6 May appointment, Dr Pathirana's 19 May 2010 report said:-

"He stated that his side effects has lessened to a tolerable level and denies having any drowsiness. He states that he still has some fatigue but has not affected his daily activities."

Dr Pathirana visited the workplace to assess the details of the job that the applicant did on the production line. This is set out on page 3 of the 19 May 2010 report.

The 19 May 2010 report noted that the applicant was co-operative and alert, oriented to place and time, scored 30/30 in a Mini Mental State (Folstein) test and showed no signs of hepatic encephalopathy.

The conclusion of the 19 May 2010 report was as follows:-

"I believe he is fit enough to return to work considering the following reasons.

1. Improvement in his side effects and recovering well.

2. Absence of any cognitive impairment and good score in mini mental state examination.

3. Motivated to return to work.

4. Regular follow up and monitoring with the Liver Clinic in Nepean Hospital.

5. Less physically demanding role.

I appreciate if the following recommendations could be taken into account on his return to work.

1. I think he is benefit ( sic ) from avoiding shift work and overtime work. This can affect his physical endurance and can have negative impact on his tolerability. I recommend that he is provided with regular day time roster and avoid overtime if possible.

2. He needs to report any change in his symptoms or emergence of any new side effects of the medication to his treating team and to work. Also he should attend follow up visits regularly and needs to be compliant with his treatment."

Dr Kwok said in his statement and in oral evidence, that he agreed with the fitness for duty assessment of 19 May 2010. It was noted in the 19 May 2010 report that Dr Pathirana had consulted with the applicant's treating team (ie, Dr Kwok) and had received correspondence from Dr Kwok and Mr Fragomeli as to the applicant.

The applicant lodged his complaint on 20 May 2010. Shortly after lodgement of that complaint, he was placed on paid leave, and his pay was back-paid from 5 May 2010 (being the date of the certificate from Dr Kwok). HR said that this occurred when the respondent became aware of the medical certificate from Dr Kwok, which it received as part of the complaint but apparently not before (despite its having been provided to Dr Pathirana and referred to somewhat obliquely in his 19 May 2010 report as "correspondence with his treating team" on page 3 of HR-2 of Ex 5).

On 25 May 2010, HR wrote a letter to Dr Pathirana after receipt of his report, and (it may be inferred from the timing and from HR's answer to a question in cross-examination at T1:58) after notification of the existence of the complaint by the applicant to the ADB. That letter asked Dr Pathirana to consider a job description and to "address the following questions:-

The nature of [the applicant's] medical condition and his current capacity to undertake the full duties of a Machine Operator.
If he does not have current capacity to undertake the full duties, when [the applicant] will be able to resume the full duties of Machine Operator.
Whether performing the full duties of the position would pose a risk to [the applicant] or other persons with whom he works or is in contact with in the course of his employment.
What restrictions [the applicant] currently has which prevent him from performing the full duties of a Machine Operator.
What current treatment [the applicant] is receiving for his medical condition and the expected duration of this treatment.
The potential for exacerbation, aggravation or recurrence of the medical condition whilst performing the full employment duties.
What, if any, accommodations can be made to assist [the applicant] to return to full duties."

In cross-examination, HR characterised the request for the updated report as being a request "referring to his shoulder injury". In fact the letter did not refer to the shoulder injury specifically at all, although the fourth dot point did ask about pre-existing restrictions. The evidence from all corners seems to be that the applicant's shoulder injury did not prevent him from fulfilling the duties he was undertaking prior to 21 April 2010, nor did it prevent him from driving a forklift. Nor was there any evidence that the shoulder injury had worsened in any way requiring a further medical review. The Tribunal formed the view that, given the terms of HR's email of 4 May and her evasiveness about the import of the letter of 25 May, her purpose in writing the letter of 25 May was to seek that Dr Pathirana provide further restrictions on the applicant's return to work.

On 27 May 2010 the applicant attended the Liver Clinic. The Nursing Notes recalled that he had "broken sleep". Dr Kwok's notes indicated "mild insomnia".

Dr Pathirana gave a Fitness for Duty (Supplementary Report) on 28 May (see SP-10, Ex 13). This report was in response to HR's letter of 25 May. Again, it is to his credit that Dr Pathirana appeared to ignore the pointed requests from the respondent through HR for a negative report on the applicant. In his report, he noted that the applicant's symptoms had improved and that his treating team was happy with his progress. Dr Pathirana recommended that the applicant could undertake his duties as a machine operator "in a full time capacity (usual hours) however I suggest that he should not perform shift work and overtime". This was on the basis that the applicant was "particularly worried about the shift work which had been disturbing his sleep". The only restriction placed by Dr Pathirana upon the work by the condition of Hepatitis C was the avoidance of shift work and overtime. There was no mention of any restriction on forklift driving.

On 11 June, the applicant had a meeting with WC and HR, at which his Return To Work plan was discussed. Also in attendance were a lawyer from the applicant's solicitors, and a union representative. Neither of those persons were called to give evidence. At that meeting, HR told the applicant that he would return to work doing duties identified by WC and would need to see Dr Pathirana again before he commenced work on 17 June. He was also told by HR that he would need to see Dr Pathirana every three months "during your treatment" (Ex 6, par [11]).

WC wrote to the applicant on 15 June confirming the arrangements made in respect of his return to work (annexure WC-3, Ex 7). The arrangements included ongoing attendance on doctors, the restriction to day shift with no overtime, and a requirement for a safety reinduction before commencing the first shift.

The applicant had a further assessment by Dr Pathirana on 15 June 2010. After that consultation Dr Pathirana emailed HR to say that:-

"Clinically ... all ... parameters were within normal",

however, the doctor was of the view that

"he needs to be monitored and keep an eye on him. I'm happy to see him every 6-8 weeks to monitor his progress".

On 17 June 2010 the applicant returned to work. The respondent formulated a Return To Work plan (which was Ex 8) dated 17 June 2010. While that Return to Work plan specified the same role as his previous role in Plant B, he was not, however, placed back on precisely the same job. He was restricted to a day shift and said that he was not allowed to put his name forward for overtime. His job was in a different area, and because it had an aspect which required him to use his shoulder, he was required to be assisted by another person for the overhead parts. The applicant was unhappy at the terms upon which he returned to work, because:-

"I have always performed both shift work and overtime work. I have become accustomed to it, both physically and for the additional income it generates.

This is standard practice among my work colleagues; in being barred from performing this work I have been clearly differentiated from my colleagues.

I consider the overtime and shift-work to be an entitlement, particularly given the number of years that I have worked with the company and my good work performance history"

(paragraphs [30]-[32], Ex C).

The position was created especially for the applicant in view of the restrictions as to shift work and overtime, and also as to his pre-existing shoulder injury. Once he returned to work, he was still paid shift allowances even though he was only working the day shift. The restriction on overtime and shift work was in accordance with the recommendations by Dr Pathirana.

JG said in his statement (Ex 3) that he was involved in the return to work plan, in particular working out the appropriate duties for the applicant. He was told by HR of "the restrictions based on Dr Pathirana's report" and based on that, and the pre-existing shoulder restriction, the applicant was commenced in a role in Plant B which was different to his previous role, and did not involve the driving of a forklift. The Return to Work plan noted "Dayshift with no overtime" and that he was to be paid the "average shift allowance". The plan also required follow-ups with Dr Pathirana. The Return to Work plan noted "Plan as per cert" (which "cert" referred to a certificate issued by Dr Pathirana the next day, 18 June 2010 and was consistent with the Return to Work plan Ex 8 - see SP-12 of Ex 13, email of Dr Pathirana dated18 June 2010 at 9.18 am to HR).

The absence of forklift driving is puzzling, given that Dr Pathirana did not impose any such condition. He said that he was not consulted about the forklift restriction (T2:32). The restriction appears from the evidence to have its genesis with WC, who said in oral evidence:

"... I didn't think he was at the time capable [of driving a forklift]. ... we hadn't seen him for a long period of time so we weren't sure what he was like but the impression from the meeting that we had was that he wasn't as good as he had been before he started his medication. There were clearly issues there. And so I made the call as the manufacturing manager that I didn't want him driving a forklift" (see T1:74).

WC was asked questions by the Tribunal as to this decision. He said that he had not had to make those particular decisions as to workers with chronic health conditions before (see T1:73). WC said in answer to questions that he had had some contact with HR over the applicant's medical clearance, and that he was "cleared to do dayshift" (see T1:75). He was unaware of Dr Pathirana's report of 19 May which cleared the applicant to return to his former position albeit on dayshift with no overtime. He had, however, seen Dr Kwok's letter of 5 May (see T1:82).

WC sought to justify his decision to restrict forklift use by reference to the fact that given the nature of the duties in the new role, the applicant would be alone for "potentially 40 minutes a day on his shift" and that WC felt that he was not safe for that to happen. He said that he had not made such a decision - that is, restricting further the medically-advised restrictions - in relation to any other worker returning from a period of leave, but said that had he formed the view that anyone who was extremely tired or very fatigued he would have taken them off forklift duties (see T1:84). As WC rather colourfully put it, "driving forklifts is not something that is a god given right on site".

On 24 June 2010 the applicant attended the Liver Clinic. The Nursing Notes record "progressing well ... intermittent fatigue and headaches". On 22 July Dr Kwok noted that he had "mild lethargy, well after sleeping". The nursing notes that day note that "fatigue resolved, headaches resolved".

The applicant had some time off in the period July through to August 2010. He had had an endoscopy, and on 30 August 2010 the applicant developed a rash. While there was no consensus as to the origin of the rash, it was considered by his various doctors that some of the medication could have been to blame and his medication was modified. He no longer has the rash.

JG gave evidence that when he spoke to the applicant on 27 August 2010 to inform the applicant of an appointment at the occupational health clinic. During this conversation, JG said:-

"the applicant was difficult to understand during these discussions. He spoke very quietly and was slurring some of his words and his facial expressions gave me the impression he was having some difficulty in speaking and co-ordinating his words."

While it was the Tribunal's impression that JG tried to give his evidence as best as he could recollect, it is notable that no treating doctor or any doctor from the occupational health clinic has observed these symptoms in the applicant. Accordingly, we have doubts about the significance or the seriousness of any slurring and the difficulty in speaking or co-ordinating his speech which may have been observed by JG on that day. Additionally, it is noted that the applicant was seen by Dr Pathirana on that day and he noted that the applicant's condition was "stable". No unusual speech patterns were observed by the doctor on that day. We are not convinced that the applicant was, in fact, slurring his speech or noticeably fatigued on that day, given the failure by Dr Pathirana to observe any such condition.

Due to the rash, and the concerns JG had about the applicant's speech and demeanour, the respondent (through a discussion between JG and HR) required that the applicant attend the occupational health clinic "for a further assessment of his fitness to work" (Ex 3, par [20]). Dr Allen, a specialist in occupational health, was now involved in the reviews of the applicant along with Dr Pathirana.

On 31 August HR wrote to Dr Pathirana and noted that the applicant had been "taking time off for days when affected by medication". (This was prompted by an email from RG noting that the applicant didn't come in on 26 August 2010). She asked for some guidance on whether he was "putting himself and others at risk". She did so more formally in a letter on 2 September 2010 to Dr Pathirana (attachment SP-15, Ex 13) and sought an "updated assessment" of the applicant's ability to perform restricted/modified duties, and whether any risk was posed by the applicant to himself or to others. HR noted to Dr Pathirana that the applicant was "on modified duties (no shift work, no overtime)", but did not mention that he was not driving a forklift. The "slurred speech and apparent difficulties in communicating" were referred to, although this did not appear to be something HR herself observed. The "dot points" in this letter seeking the doctor's opinion were:-

"The nature of [the applicant's] medical condition
Whether [the applicant] is currently fit to perform the restricted/modified duties being provided to him (no shift work/no overtime).
If he does not have current capacity to undertake these modified duties, when [the applicant] will be able to resume those modified duties.
Whether performing the modified duties would pose a risk to [the applicant] or other persons with whom he works or is in contact with in the course of his employment.
What current treatment [the applicant] is receiving for his medical condition and the expected duration of this treatment.
The potential for exacerbation, aggravation or recurrence of [the applicant's] medical condition whilst performing restricted/modified duties.
What, if any, workplace adjustments or further modifications may be made to assist [the applicant] to return to full or modified duties."

On 8 September Dr Pathirana sought information from Dr Kwok as to the applicant's condition, and in particular whether Dr Kwok was recommending stopping the interferon treatment (see attachment SP-9, Ex 12). Dr Pathirana's notes on 10 September record a conversation that he had with Dr Kwok, wherein he noted that Dr Kwok thought that the applicant could "do his job but +/- shift work - cannot particularly comment on that as drowsiness/fatigability is subjective - something that cannot be measured" (emphasis in original).

On 22 September 2010 JG attended a meeting with the applicant and with Drs Allen and Pathirana. On that occasion, JG said that the applicant told the doctors that "The medication I take makes me drowsy but I think I can manage this as I can inject at the end of my shift" (see par [35], Ex 3). On 23 September 2010 Dr Pathirana gave a Fitness for Work Follow-up certificate (attachment SP-10, Ex 12) which recommended an assessment of cognitive function, regular follow-ups, continuation on day shifts and that he was fit for restricted duties.

On 1 October 2010 Dr Pathirana wrote a referral letter to Dr Rowe, a consultant neuropsychologist, asking him to assess the applicant's "cognitive status and a neuropsychological assessment to determine the exact nature of his problem", given his "drowsiness" and the reports of his supervisors that "his performances have not been optimal to date and the supervisors still [have] concern regarding his safety at work". In his cross-examination, Dr Pathirana said that the referral for cognitive assessment was after reports from JG and HR that "[the applicant was] not turning up for work at times ... from August 2010 and July, during that period he was not turning up to work in time and had a few issues and had called in sick all of a sudden on certain days, so I was referring to that".

The doctor was asked whether those absences were explicable due to the applicant's laryngitis and skin rash, a proposition with which Dr Pathirana seemed to agree (T2:29-30). The "trigger" for the cognitive assessment was the applicant's "continuing problems at work" (T2:32) and was made by Drs Pathirana and Allen despite the applicant scoring 30/30 on mini mental state examinations (a screening test for cognitive dysfunction). In answer to a question from the Tribunal, Dr Pathirana denied that the suggestion for a cognitive assessment came from any other source than his and Dr Allen's examinations of the applicant.

The applicant saw Dr Rowe on 15 and 22 October 2010, and Dr Rowe provided a report (attachment DR-3) to his affidavit (Ex 4). He also gave a supplementary report (attachment DR-5). Dr Rowe administered a number of cognitive and neuropsychological tests. He made a number of comments as to the applicant's insight into both the reason for the testing, and into the impact of his condition on his work performance. Dr Rowe said that the applicant refused to acknowledge any work safety or performance issues, and largely denied "any prior symptom presentation, which seems remarkable".

The crux of Dr Rowe's report is based on studies which show that "even mild liver disease due to HCV can lead to a dulling in cognitive performance" (for which he cited an article by Forton, DM et al (2005), A review of cognitive impairment and cerebral metabolite abnormalities in patients with hepatitis C infection , AIDS, 19 53 , 553-563. He was cross-examined on this and on other articles cited in his report. He found the applicant to show "an absence of any gross cognitive impairments with the exception of a pattern of subtle or mild cognitive impairments, which can be primarily attributed to his HCV infection, but possibly compounded by his Interferon treatment". Dr Rowe also felt that there may be some level of underlying cognitive impairments regardless of the impact of the treatment. However, any cognitive weaknesses had very minor effects on his testing results and it is fair to say that any cognitive impairments were minimal. Dr Rowe suggested that he be seen by an occupational expert so that his suitability for work be better assessed.

In a supplementary report, Dr Rowe suggested that the poor work performance reported to him in April 2010 was probably due to the commencement of the interferon treatment, but that he is "satisfied that the concerns regarding his workplace safety are genuine" (this comment was made in the context of the applicant improving after cessation of the treatment).

Dr Rowe's original report along with other documents was sent to Dr Allen by the respondent's solicitors. Dr Allen wrote a report dated 10 November 2010 (annexure DA-4 to Ex 14). Dr Allen's view was that the applicant was able to work, but it was preferable given his self-reported symptoms, the side effects of the treatment, and Dr Rowe's report, that his work be managed according to his health. Dr Allen felt, in late 2010, that there were grounds for continuing the day shift rather than afternoon or night shift work. He also said that "I don't think it would be suitable for him to be performing 4-5 hours overtime in a 24-hour period". Dr Allen also exhibited (attachment B to annexure DA-4, Ex 14) a draft report in relation to his consultation with the applicant on 22 September 2010, in which his conclusion is the same; that the applicant should be restricted to day shift, without overtime, pending reviews.

The applicant continues to see either Dr Allen or Dr Pathirana on a three-monthly basis at the direction of his employer.

He also attends the Liver Clinic at Nepean Hospital on a three-monthly basis. WC gave evidence that "since 17 June 2010 [the applicant] has been absent due to sickness for sixteen full days and four part days as a result of his medication" (which period includes the rash he suffered, dealt with above). Dr Allen remained of the view in February 2011 that close monitoring would be needed in order for overtime or shifts other than day shifts to be worked by the applicant.

However, on 5 February 2011, Dr Pathirana assessed the applicant as being fit to work up to 12 hours overtime a week, and soon after that assessment, up to 12 hours per week has been offered to the applicant (although he said he has not worked it).

The applicant contends (par [39], Ex C):-

"I feel that ever since I told the respondent about my health status they make a big deal out of my every movement. I feel that they are doing this to wear me down. I just want to work like I always have, under the same conditions as I have for 24 years".

It is useful to give an outline of the way in which the doctors impressed the Tribunal. Dr Kwok was most impressive, both in the knowledge of his field and the way in which he was able to acknowledge his limitations. He was very critical of Dr Rowe's report, even though he was not a neuropsychologist, but he said that he saw lots of Hepatitis C cases and was able to give an opinion on the question of Hepatitis-specific or Interferon-specific cognitive impairment. Dr Kwok was very firm that the applicant did not suffer any cognitive impairment through these causes. Dr Kwok agreed with Dr Pathirana's "Fitness for Duty" assessment in general terms, because they accorded with how the applicant presented on a general basis to Dr Kwok; that the symptoms were mild, that he showed some degree of tiredness and that that tiredness was exacerbated by shift work and by overtime.

Likewise, the Tribunal was impressed by Dr Pathirana. As noted above, he endeavoured to give the best evidence to the Tribunal unweighted by favouritism for his patient, the applicant, or the respondent, which paid his invoices.

Generally speaking there were minimal differences between the evidence of Dr Kwok and Dr Pathirana, and mostly that was as to the reported symptoms of the applicant, and as to the need for the cognitive assessment by Dr Rowe (which Dr Kwok said was unnecessary). Where Dr Kwok and Dr Pathirana do not agree in relation to the fitness of the applicant to undertake his duties, the Tribunal is able to accept Dr Pathirana in the light of his expertise in occupational health and his inspection of the workplace which was carried out specifically in relation to the applicant.

Dr Rowe appeared to the Tribunal to give unduly heavy weight to the measured cognitive disparities and to attribute them - again, it seems to the Tribunal, without due consideration - to the Hepatitis C or the interferon. If one accepts - as the Tribunal does - the evidence of Dr Kwok as to the impact of Hepatitis C on cognition, and the impact of shift or overtime work being more important than the condition or even the treatment as Dr Pathirana noted, then any measured impairments found by Dr Rowe have a minimal impact at best.

Dr Kwok, although he had no training as a neuropsychologist, was able to satisfy the Tribunal from his practical experience and observations that cognition levels in persons with liver disease were generally mild, and that where a patient scores 30/30 (as the applicant invariably did) on a MMSE it did not necessarily link cognitive impairment to the liver disease. He said that liver specialists often saw patients with cognitive impairments due to alcohol related dementia or encephalopathy, neither of which the applicant suffered from. Dr Kwok made the telling point that a patient such as the applicant needed to be assessed in the context of his socio-economic background, his education, and that the very minor cognitive impairments noted by Dr Rowe were not inherently linked to the liver disease.

Dr Allen's evidence was of minimal importance as against that of Dr Kwok and Dr Pathirana, given that he first saw the applicant on 22 September 2010, and generally he seemed to support their conclusions.

Submissions by the parties

The parties were given the opportunity to make oral submissions on 7 March, and in addition the following written submissions were made:-

a) Applicant: 4 March 2011 ("AS1"); 31 March 2011 ("AS2"); and

b) Respondent: 4 March 2011 ("RS1"), 7 March 2011 ("RS2"); 7 March 2011 (on credibility; "RS3") and 11 April 2011 ("RS4").

It is fair to say that the volume of submissions is significant, totalling some hundreds of pages. In addition a volume of some 21 authorities was handed up. The Tribunal is of course grateful for the hard work and assistance given to it by the parties, but it must be said that much of the applicant's submissions are not relevant, and much of the respondent's submissions are repetitive. The contents of RS2 and RS3 do not add significantly to the final determination (given that those sets of submissions deal with issues which were dealt with during the hearing) and so what follows relied on the oral submissions, AS1, AS2, RS1 and RS4.

Given the volume of the submissions and the difficulties noted above, it is not intended to set out each argument raised by the parties in detail, nor to repeat every submission raised. The Tribunal has, of course, considered each and every submission made and the failure to mention the minutiae of each submission does not mean it has not been taken into account. To do so would render these reasons, already lengthy, unreasonably unwieldy.

The Direct Discrimination Claim

It will be recalled that the discrimination claim was enunciated as:-

a) did the respondent breach s 49D of the Act by:-

i) suspending the applicant without pay from 21 April 2010 (noting that the respondent began paying the applicant although he was not working as from 5 May 2010);

ii) requiring the applicant to attend at various medical appointments on 22 April, 6 May, 15 June, 30 August and 22 September; and

iii) limiting the basis of the applicant's working conditions on and after his return to work on 17 June 2010?

The elements which must be proved by the applicant in order to succeed in his claim that he has been directly discriminated against are:-

a) that he was treated less favourably by the respondent than the way in which the respondent treated, or would have treated, a person without the disability in the same or similar circumstances; and

b) a reason or ground for the less favourable treatment of the applicant by the respondent was the applicant's disability.

(see Commissioner of Corrective Services v. Aldridge, [2000] NSWADTAP 5, at [35] to [53]).

The victimisation claim

It will be recalled that the victimisation claim was enunciated as being:-

a) Did the respondent breach s 50 of the Act by subjecting the applicant to victimisation on or after 20 May 2010, by:-

i) deferring the applicant's return to work until 17 June 2010;

ii) forcing the applicant to attend for further and ongoing medical treatment?

In order to make out a victimisation claim, the applicant must be "subjected to" a detriment, which he must suffer. There must be a nexus between any detriment suffered and (in this case) with the making of a complaint.

There is no interconnection between success on the discrimination complaint and on the victimisation complaint - the complaint made which caused a successful victimisation complaint need not be one which is ultimately successful as to the discrimination alleged in it.

The applicant's submissions

Here, the applicant's disability was Hepatitis C. The applicant made a number of submissions seeking to bring into the admitted disability the factors in s 49B(2) which provides:-

"something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that pertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability".

The applicant argued that treatment for Hepatitis C is a characteristic which "appertains generally" to people living with Hepatitis C. The case of State Transit Authority v. Sloey [1999] NSWSC 47 was cited to support the proposition that it should be found, as a matter of common knowledge, that treatment for the condition is a "characteristic that pertains generally to persons who have that disability" or is a characteristic imputed to them. The applicant also pointed to the transcript (Exhibit 16, T1:52) where Dr Kwok referred to the virus as a chronic infection which only resolves naturally in about 15% of cases. The applicant submitted that this led to a finding that a person with Hepatitis C would be likely to obtain treatment for that condition over the course of their lifetime.

The applicant set out (as can be seen in paragraph 22) a series of events which, he submitted, amount to unlawful discrimination. He submitted that once the respondent had been told about the applicant's disability (see facts set out in paragraph 42 to 43 above) the respondent formed a view that the applicant was unfit to work while being treated for Hepatitis C, and would be a danger to himself and to others at the workplace. It was submitted (see par 1.5, AS2) that "the respondent conducted itself at all relevant times in a manner consistent with such views despite the countervailing views of the appointed doctors, and without the support of any medical evidence".

Once the Tribunal has found that that was the view taken by the respondent, the applicant submitted that the treatment of the applicant which then flowed can be seen as a series of events motivated by that belief. Certainly there are elements of the case which would support such a view having been formed; most importantly by HR (noting her emails to Dr Pathirana seeking that he tell the applicant to stay at home during treatment) and WC (in imposing a restriction on driving the forklift inconsistent with Dr Pathirana's return to work clearance).

The applicant sought to go further than this and to find that the email sent by RG on 19/20 April 2010 - the "walking zombie" email - is likewise a manifestation of that view taken by the respondent. The applicant pointed to the fact that the email was sent some four hours after the conversation, and the words "walking zombie" did not appear in the notes of the later meeting on 27 April 2010, although WC indicated that that had been discussed. The applicant also placed heavy reliance on the fact that nowhere is it recorded in writing that the respondent's employees put that allegation to the applicant (although a number of them indicated that they had raised it with him).

The applicant asked us to find that the applicant's state of health was limited to mild side effects of the medication and that he was at all times able to work. As we have noted above, once the applicant had returned to work, we are of the view that his symptoms were being overstated by the respondent (notably by WC), in that he said he observed slurring of speech where Dr Pathirana observed none. No other doctors noted any slurring of speech or other features of significant fatigue reported by WC.

The applicant submitted that the length of time it took to return the applicant to work (from 19 May 2010, when he first received a favourable report from Dr Pathirana, to 17 June 2010) was a denial of a benefit, as was the failure to allow him to work shift work and overtime.

The applicant further sought a finding that the restriction by WC of the applicant to a position without forklift driving duties was done on the basis of unlawful discrimination (as well as on discrimination, see below). That is, that it was done on the basis of an assumption by WC that the applicant was not well enough to drive a forklift, and that despite the clearance by Dr Pathirana for him to return to his former role albeit initially on the day shift and without overtime, the restriction was imposed on the basis of an assumption by WC that the applicant's disability did not allow him to undertake driving the forklift. The applicant pointed to the questions from the Tribunal aimed at discovering whether the WC had ever imposed his own restrictions over and above the doctor's clearance before; the answer was no (T1:81).

The applicant did not address in any great detail the issue of a proper comparator. The sum total of the submissions as to the proper comparator was that an appropriate hypothetical person would be:-

".. a person suffering from a medical condition, not being Hepatitis C, who was on treatment for that condition, and who had received medical clearance to return to work, and thus had additional restrictions imposed upon that person nonetheless" (AS2, page 1, second set of numbered (a) to (e) paragraphs in section 1).

The applicant relied upon the conditions imposed on his return to work as the basis of the finding of victimisation. It was submitted that there is no requirement for intention in a finding of victimisation.

The applicant did not, in terms, address the statutory basis of the victimisation claim. It was submitted (at page 31 of AS2) that "Following the applicant making a complaint to the Anti-Discrimination Board of NSW [the applicant] suffered a detriment as a result of a such a complaint, and accordingly was victimised". It was submitted that the finding of victimisation arises "objectively" out of the timing of the making of the complaint and of the suffering of the detriment. It was submitted that the respondent's conduct in:-

a) failing to allow the applicant to drive a forklift;

b) failing to return the applicant to his former duties; and

c) requiring that he attend further medical appointments, including the neuropsychologist;

constituted the detriments suffered by reason of the making of the complaint, and were sufficient to ground the complaint of victimisation.

The respondent's submissions

In relation to the various contentions by the applicant, the respondent contended that the relevant standard of proof is the Briginshaw standard. In Correy v. St Joseph's Hospital Ltd [2007] NSWADT 104 at [30], the Tribunal referred to the "gravity of the allegations and the serious consequences of any findings to the Respondent" in applying the Briginshaw test (see RS4 [55]-[66]). We have considered this matter and while the allegations are of course serious, they do not fall outside the usual course of allegations of matters under the Act, and we do not consider that they require any special considerations in the application of the civil standard of proof.

The heart of the respondent's submission was that there was no relevant application of either subs-s 49D(1) or (2). It was submitted that reliance on s 49D(1) was misconceived, in that that subsection relates to offers of employment rather than to conditions applying to continuing employees such as the applicant. As for sub-s 49D(2), if it were established then it was submitted that there was no detriment, given that as soon as the applicant was medically assessed as being able to undertake overtime he was offered overtime, and that there were in fact no other detriments (particularly in the light of the payment of shift loadings from 5 May 2010 despite his only working day shift).

It was submitted that there was no relevant discrimination within the meaning of s 49D(2) given that there was no "right" to overtime, nor to driving of a forklift, and reference was had to the Enterprise Agreement which set out that shift work and overtime were undertaken when required by the respondent. In any event, it was submitted, the respondent was permitted to take into account whether the applicant was physically and legally capable of undertaking work in that capacity (see Laycock v. Commissioner of Police [2006] NSWADT 261). Any requirement by the applicant that he do so was a request for beneficial treatment

The respondent relied upon the High Court in Purvis v. New South Wales (2003) 217 CLR 92 in pointing out that:-

"in determining whether less favourable treatment has occurred by comparison to the relevant comparator, all circumstances applicable to the applicant must be taken into account, including any behavioural manifestations resulting from the disability".

That submissions is based on the findings in Purvis that a relevant comparator must include behavioural manifestations resulting from the disability (see [223]-[225]).

Accordingly, any comparator must allow the Tribunal to compare treatment given to the applicant with treatment that would have been given to a person without the attribute (ie, Hepatitis C) but with the same behavioural characteristics manifested by the applicant.

It was submitted that the appropriate comparator was someone:-

a) without a disability;

b) who had the same skill set and experience as the applicant;

c) who displayed the same manifestations in relation to his levels of fatigue, ability to concentrate and alertness as the applicant; and

d) who self-reported as the applicant did to both RG and to Dr Pathirana as to his levels of fatigue and concentration loss.

Accordingly, the respondent submitted that given the information provided to it by both the applicant, RG and Dr Pathirana, the respondent would have treated any other employee the same as it treated the applicant by:-

a) standing him down as at 21 April 2010;

b) requiring him to remain stood down until the medical assessments of 19 and 28 May and retaining him on day shift thereafter; and

c) by providing him a job which did not have him working alone or operating a forklift.

If the above submissions are correct, the respondent said that the applicant cannot demonstrate that he has been treated less favourably within the meaning of s 49B(1)(a) of the Act.

Further, it was submitted that if there was less favourable treatment, the applicant was unable to show any nexus between it and the disability. The defendant cited Purvis to demonstrate that the question of why the applicant was treated as he was (at [236]). It was submitted that there was no evidence that the actions set out in paragraph 149 above were taken with any operative factor relating to the disability. It was submitted that the real operative factor was the concern for safety both of the applicant and of his co-workers. The respondent pointed to Penhall-Jones v. State of NSW [2007] FCA 925 at [84]-[85] where it must be shown that:-

"to establish breach of the relevant legal obligation [the ground] need not be the sole factor but it must be a substantive and operative factor. ... it must afford a rational explanation, at least in part, "why" an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much as matter for proper proof as any other factual circumstance".

As to victimisation, the respondent repeated its submissions that the applicant had not suffered any detriment, and noted that there was a requirement for a causal link between the making of the complaint and the detriment suffered. It was submitted that even if there were detriment, the applicant had been paid at a level which compensated him for the loss of shift work from 5 May 2010, and thus no loss flowed from any victimisation. It was submitted that the loss of former overtime income was not due to any victimisation, but to Drs Pathirana and Allen, and he was not subjected to those losses by the applicant.

The respondent submitted that the link between the lodging of the complaint and the conduct meted out and subsequent subjection to a detriment must be "real", "genuine" or "true" reasons for the treatment (see Nicholls & Nicholls v. Director-General of the Department of Education and Training (no 2) [2009] NSWADTAP 20 at [137]. It was submitted that it had not been put to any of the respondent's witnesses that there was such a causal link, and that the only basis for the victimisation claim is the perception of the applicant (a matter which was in fact raised as part of the cause of action in the applicant's submissions).

Before determining whether any defences to either of the claims may be called in aid by the respondent, it is useful to consider whether the elements of direct discrimination have been made out by the applicant.

Consideration - direct discrimination

The first element of unlawful discrimination is set out in paragraph 128a above and may be referred to as the differential treatment element. In order to establish that the applicant has been treated differently, the applicant must establish a comparator. The Court of Appeal in Haines v. Leves (1987) 8 NSWLR 442 (per Kirby P at 474) acknowledged the difficulty of finding actual comparators, and no-one has been put forward by the applicant, perhaps as an example of that practical difficulty.

The Tribunal accepts the application of the statements in Purvis which were put forward by the respondent in paragraph 148 above, bearing in mind the findings set out in the section of this decision dealing with the facts as to what was said by him to RG and to Dr Pathirana. It is our view that rather than the comparator being a person "without a disability", it should be a person who did not suffer from Hepatitis C. The distinction in this case is not a significant one as the facts have emerged, but the point should be made. No actual comparator was brought forward and so the Tribunal may use the hypothetical comparator.

The Tribunal needs to determine whether, in comparison with the hypothetical comparator, the applicant was treated less favourably. The question is not whether he was treated unfavourably; but whether, with reference to a comparator, real or hypothetical, he was treated less favourably.

In the circumstances, it seems clear that given:-

a) the terms of RG's email; and

b) the terms of Dr Pathirana's first medical report;

the respondent was acting responsibly in standing down the applicant. Any person using heavy machinery such as the forklift or other factory machinery who said the things set out in paragraphs 49 (the "walking zombie" email) and paragraph 61 (the provision of symptoms of fatigue and drowsiness to Dr Pathirana), it seems to us, would have been taken out of the work environment by a responsible employer. As we have found that the email from RG, being a contemporaneous note of a recent conversation, and the thoroughness of Dr Pathirana's observations demonstrate that what was recorded in the email and notes was said by the applicant, it is difficult to reach a different conclusion.

As noted above, the applicant was paid his basic wage plus shift allowances from 5 May, that being the date on which Dr Kwok supplied the medical certificate to the respondent (although it was not seen by it for some time). Thus, were the applicant to be successful in a finding of direct discrimination, any period of loss arising from standing the applicant down would only be from 21 April to 4 May (plus, on one view, overtime after that period until he was able to work overtime once more).

It seems to us that there is nothing in the evidence which shows that the applicant was treated less favourably than a person in his situation who was manifesting the same symptoms. There was very little examination of whether another person in the same circumstances would be stood down without pay. If one assumes in favour of the applicant that there was evidence that a comparator would be stood down with pay, the loss only accrues for the very short time set out above. However, there is insufficient in the evidence to make that assumption. A positive factual finding of direct discrimination, while it can be made on circumstantial evidence, cannot be made in a vacuum of evidence. There is nothing that can lead the Tribunal to find that the applicant was treated less favourably than someone else with the same symptoms as he suffered in April 2010.

Even with an assumption in favour of the applicant, was there any "reason or ground" for any less favourable treatment? It is difficult to see where there was such a reason or ground. RG had known officially of the treatment and of a "possible fuzziness" for some weeks, but not of the condition suffered by the applicant. A number of other persons involved in the decision had known for some years, even if they had not been officially informed, that the applicant had Hepatitis C and that he had formerly gone through treatment. As pointed out by the respondent, the applicant's Hepatitis C status had been known "on the job" for some considerable time, and it would be unlikely to be a reason for any adverse treatment at that particular time without the objective physical manifestations of the type described by Dr Pathirana.

Accordingly, we are of the view that "suspending the applicant without pay from 21 April 2010 until 5 May" was not conduct which was "less favourable treatment" on the basis that the respondent would not have treated a person without the disability in a more favourable manner in the same or similar circumstances.

The next ground of direct discrimination is the requirement to attend various medical appointments. This ground has posed a great deal of difficulty for the Tribunal. Throughout the facts recited above, the attitude of HR posed a real difficulty in that she:-

a) clearly was of the view that the applicant was incapable of working during his treatment; and

b) wished Dr Pathirana to take a view different from that which he did take.

However - and this is the factor which inclines the Tribunal to the view it ultimately takes - HR's views were not the defining views which made the medical appointments necessary. While the Tribunal does not accept HR's explanations of her motives and objectives (see for example paragraph 88 above), it is clear that the respondent acted in accordance (with one exception, listed below) with the medical recommendations of Dr Pathirana and, later, Dr Allen. Dr Pathirana showed a consistent resistance to being influenced in his recommendations and there is no reason to doubt that Dr Allen did the same. When Dr Pathirana recommended that restrictions be imposed (and later removed), the respondent did so (with the exception of the letter of 25 May which is dealt with below). The attendances on medical practitioners were relevant and appropriate given Dr Pathirana's findings in his various reports.

The Tribunal does not, however, necessarily accept that the attendance on the neuropsychologist was strictly necessary. However, given the fact that Dr Pathirana (and later Dr Allen) were of the view that the applicant's cognitive function should be checked as part of the review of his various absences, it cannot be said that the respondent would have treated a person with the same manifestations (drowsiness, reports from supervisors of fatigue, and absences) differently and less favourably.

We are of the view that "requiring the applicant to attend at various medical appointments" as listed was not conduct which was "less favourable treatment" on the basis that the respondent would not have treated a person without the disability in a more favourable manner in the same or similar circumstances.

As to the limiting of the applicant's working conditions, there is no doubt that this was seen by the applicant as a detriment. The Tribunal accepts the respondent's explanation that given the rotating day shifts (where each worker is appointed to a shift, and that group of workers rotates around the day/evening/night shifts in turn) it was not feasible to put him back on his former job. The job was created for him specifically, which perhaps added to the perception by the applicant that he was being treated differently and (in his view) less favourably. The lack of any forklift driving in that role would have exacerbated that perception.

JG's impressions of the applicant ability on his return to work were the factor which resulted in the loss of the forklift driving. The Tribunal, while suspicious of the motives behind the refusal to include forklift in his duties, cannot be satisfied on the balance of probabilities that this decision was made on the basis of the disability, rather than on the basis of workplace and worker safety. In any event, even if we are wrong in this, there is no actual detriment suffered by the applicant by either the change in job duties, or the loss of the forklift. A mere perception of a detriment is insufficient, and as he was being paid for shift work without having to do it there was no financial detriment. It should be noted that Dr Kwok, his treating doctor, concurred in the suitability of "day-shift only" during the course of the applicant's treatment, and thus it is difficult for the applicant to say that it was a subjection to a detriment on the basis of less favourable treatment.

In summary, the Tribunal cannot be satisfied that there was a beach of s 49D(2) (and agrees with the respondent, as indicated during the hearing, that s 49D(1) was not applicable to the circumstances of the applicant's employment). Accordingly, there is no need to consider the issue of defences to the claims.

Consideration - victimisation

The question of victimisation was not expressed very clearly by the applicant, and it was a difficult claim to pin down on the applicant's behalf. However, it is clear that the respondent changed its attitude to the applicant once the claim had been made. Most of that change resulted in an amelioration, not a detriment, for the applicant; the medical certificate of Dr Kwok came to light at the same time as the complaint, and rather than having some detriment imposed upon him, he was paid (retrospectively) from its date.

The applicant alleges that he was victimised by being subjected to a detriment in two areas:-

a) a delay in his return to work; and

b) a requirement that he attend for further and ongoing medical treatment.

Dealing with the second issue first, it seems that it falls into the same category in that the moving parties for requiring attendance at doctors and for ongoing medical review were not the employees of the respondent but Drs Pathirana and Allen. While Dr Kwok was - it is fair to say - indignant that the applicant was required to attend on Dr Rowe for a cognitive assessment, it is not clear that the motivation for that appointment came from anyone other than Dr Pathirana. It is clear that there is some connection between Hepatitis C and cognitive dysfunction, although someone with Dr Kwok's expertise was able to link that with conditions from which the applicant did not suffer. Dr Pathirana may not have had the same expertise.

In any event, it is difficult to link the making of the complaint with the requirement for ongoing medical treatment, given that the respondent had been told what was contained in RG's email and Dr Pathirana's and Dr Allen's reports. It appears to us that there is no causal link between the making of the complaint to the ADB and the requirement for further medical treatment. Dr Pathirana's referral of the applicant to Dr Rowe was written on 1 October, and it is unclear whether he knew, at all, about the complaint at that time. It was certainly not put to the various witnesses that the complaint was a concern in their minds when requiring various medical treatments.

The final issue is whether the delayed return to work - ie, a return to work on 17 June when a Fitness for Duty Certificate had been approved by Dr Pathirana on 19 May - was an instance of victimisation.

The timetable here is set out in paragraph 84 onwards. Dr Pathirana cleared the applicant to return to work on 19 May and the applicant filed his complaint on 20 May. We have found that HR wrote her letter of 25 May to Dr Pathirana partly as a result of her knowledge of the complaint. Dr Pathirana answered her queries on 28 May and a meeting was called between the applicant, WC and HR on 11 June. On 15 June, WC wrote to the applicant about his return to work, he was assessed by Dr Pathirana again on that same day, and he returned to work on 17 June.

It seems to us that the only action which delayed the return to work was that of HR requesting further information, purportedly on the basis of the applicant's pre-existing shoulder restrictions, on 25 May. This, too, appears to be the only action which it can be inferred from proper evidence that was taken on the basis of the lodging of the complaint (apart from the decision to pay the applicant his wage and shift loadings while he was away from work, of which he does not complain).

If the letter of 25 May was written because of the lodging of the complaint, did it subject the applicant to a detriment? It may have delayed his return to work for - possibly - a short time, perhaps as short as three days (being the time within which Dr Pathirana replied). He was not required to see Dr Pathirana again as a result of the letter of 25 May. He was being paid for the time he was not working. It is difficult to see how the applicant was indeed subjected to a detriment through the request for more information. The suspicions of the Tribunal were aroused due to HR's clearly evasive and incorrect answers about the import of that letter (characterising it as being on the basis of the shoulder injury, when it clearly was not) but looking objectively at the letter, the requests are reasonable and even necessary in the light of the issues raised by the Fitness for Work certificate.

The Tribunal cannot find that the applicant suffered any detriment due to HR's reaction to the filing of the complaint in writing the letter of 25 May 2011.

Nor is there anything in the later timetable which speaks of undue delay. Each of the persons involved in the applicant's return to work acted reasonably in seeking to facilitate his return. Perhaps they acted more carefully because of the complaint - this would certainly seem to be the case in relation to HR - but as the applicant was being paid, any delay did not subject him to a detriment.

Accordingly, the Tribunal cannot be satisfied that there was victimisation of the applicant within the meaning of s 50 of the Act.

Orders

The Tribunal orders:-

a) dismiss that part of the claim which deals with direct discrimination;

b) dismiss that part of the claim which deals with victimisation.

The respondent sought leave to seek costs pursuant to s 110(2) of the Act and s 88(1)(a) of the Administrative Decisions Tribunal Act 1977. The Tribunal, while not having heard any argument on those issues, does not consider that currently there are any circumstances falling within the categories set out in the above sections. The Tribunal starts from the position of being a no-costs jurisdiction, and apart from the multitude and volume of submissions filed, the parties have acted in these proceedings, as far as the Tribunal could see, with promptitude and made every effort to finalise the proceedings as quickly as justice would allow.

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Decision last updated: 21 September 2011

Medium Neutral Citation:	ABI v Boral Australia Gypsum Ltd t/as Boral Plasterboard [2011] NSWADT 225
Hearing dates:	17 and 18 February; 7 March 2011
Decision date:	21 September 2011
Jurisdiction:	Equal Opportunity Division
Before:	J Needham SC, Deputy President A Lowe, Non judicial member E Hayes, Non judicial member
Decision:	1.The Tribunal orders:- a) dismiss that part of the claim which deals with direct discrimination; b) dismiss that part of the claim which deals with victimisation.
Catchwords:	Disability discrimination - anonymisation due to community attitude to Hepatitis C Disability discrimination in employment - stood down on medical grounds - return to work plan - whether delayed on grounds of discriminatory treatment Victimisation - treatment after making claim benefitted applicant - whether victimisation
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1977
Cases Cited:	Commissioner of Corrective Services v. Aldridge, [2000] NSWADTAP 5 State Transit Authority v. Sloey [1999] NSWSC 47 Purvis v. New South Wales (2003) 217 CLR 92 Laycock v. Commissioner of Police [2006] NSWADT 261 Penhall-Jones v. State of NSW [2007] FCA 925 Nicholls & Nicholls v. Director-General of the Department of Education and Training (no 2) [2009] NSWADTAP 20 Haines v. Leves (1987) 8 NSWLR 442
Category:	Principal judgment
Parties:	ABI (Applicant) Boral Australian Gypsum Limited (Respondent)
Representation:	Counsel P Thew (Respondent) Surry Hills Legal Centre (Applicant) Herbert Geer (Respondent)
File Number(s):	101093
Publication restriction:	Section 75 of the Administrative Decisions Tribunal Act 1997 applies