Annovazzi v State of New South Wales Sydney Trains - [2023] FedCFamC2G 542

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542

File number(s): SYG 3116 of 2018

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 23 June 2023

Catchwords: HUMAN RIGHTS – Disability discrimination – whether in dismissing the applicant the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities – whether by taking other actions the respondent unlawfully discriminated against the applicant by subjecting the applicant to any other detriment – whether by requesting information in relation to the applicant’s disabilities the respondent did so in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities – whether the respondent harassed the applicant in relation to her disabilities – declarations made that the respondent unlawfully discriminated against the applicant by dismissing her from the respondent’s employment and by subjecting the applicant to other detriment – declaration made that respondent requested information from the applicant in relation to her disabilities in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities.

Legislation:
Australian Human Rights Commission Act1986 (Cth) s 46P

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 8(1), 10, 15, 21A(1), 30, 35

Evidence Act 1995 (Cth) ss 59(1), 60(1), 69

Rail Safety National Law2012 (NSW) ss 4(1), 8, 52, 114, 117

Transport Administration Act 1988 (NSW) ss 36, 36A(1)

Rail Safety National Law Regulations 2012 (NSW) reg 27

Cases cited:
Briginshaw v Briginshaw [1938] HCA 34

Glasgow City Council v Zafar [1997] 1 WLR 1659

KLK Investments Pty Ltd v Riley (1993) 31 ALD 747

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Penhall-Jones v State of NSW [2008] FMCA 832

Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62

Victoria v McKenna [1999] VSC 310

Division: General

Number of paragraphs: 161

Date of hearing: 17, 18, and 19 May 2021, 28 February 2022, and 1, 2, and 23 March 2022

Place: Sydney

The Applicant: Appeared in person

Counsel for the Respondent: Mr M Seck

Solicitor for the Respondent: McCullough Robertson Lawyers

Table of Corrections

16 April 2024 In paragraph 133, in the passage “but that, instead, the Comparator would be dismissed” the word “not” has been inserted between the words “would be”, so that the passage now reads “but that, instead, the Comparator would not be dismissed”.
ORDERS

SYG 3116 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RENEE ANNOVAZZI

Applicant

AND:
STATE OF NEW SOUTH WALES - SYDNEY TRAINS

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

23 JUNE 2023

THE COURT DECLARES THAT:
1.Contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (DD Act) on 31 January 2018 the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities by dismissing the applicant from her employment with the respondent.
2.Contrary to s 15(2)(d) of the DD Act the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities by keeping the applicant out of the trainee drivers course after 9 January 2018.
3.On 20 December 2017 and 23 January 2018 the respondent acted contrary to s 30(2) of the DD Act by requesting the applicant provide a medical note or a briefing from the applicant’s treating physician regarding the applicant’s disabilities.

THE COURT ORDERS THAT:
4.The proceeding be listed for a directions hearing in relation to remedies at 9.30 am on 14 July 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant, Ms Annovazzi, claims the respondent (Sydney Trains) engaged in unlawful discrimination on the grounds of Ms Annovazzi’s disabilities, contrary to provisions contained in the Disability Discrimination Act 1992 (Cth) (DD Act). It is common ground that Ms Annovazzi has attention deficit hyperactivity disorder (ADHD) and Asperger’s Syndrome, and that each of the conditions denoted by these expressions is a “disability” within the meaning of s 4(1) of the DD Act.
Ms Annovazzi claims Sydney Trains engaged in three classes of unlawful discrimination. The first is discrimination Sydney Trains engaged in as the employer of Ms Annovazzi, contrary to s 15(2) of the DD Act. The alleged discriminatory conduct includes Sydney Train’s decision to remove Ms Annovazzi from a trainee train driver programme, and to terminate Ms Annovazzi’s employment. The second alleged class of alleged discrimination is Sydney Trains’ requesting Ms Annovazzi to provide information and records relating to her disabilities, contrary to s 30(2)(a) and s 30(2)(b)(ii) of the DD Act. The third is harassment, contrary to s 35(2) of the DD Act.
Sydney Trains denies it engaged in conduct that was discriminatory or which was unlawfully discriminatory. Sydney Trains contends it terminated Ms Annovazzi’s employment, and had engaged in the other conduct of which Ms Annovazzi complains, because it believed that, before Sydney Trains had engaged Ms Annovazzi as a trainee train driver, Ms Annovazzi had dishonestly failed to disclose medical information in a form Ms Annovazzi submitted to Sydney Trains when she applied for the position of trainee train driver.
I will first set out in narrative form the evidence, in the course of which I will record some findings. Unless the context suggests otherwise, any unqualified statement of fact should be taken as a finding of the fact stated.
EVIDENCE AND SOME FINDINGS
Sydney Trains is a corporation constituted by s 36 of the Transport Administration Act 1988 (NSW). The principal objective of Sydney Trains is to deliver safe and reliable railway passenger services in an efficient, effective, and financially responsible manner.[1]
[1] Transport Administration Act 1988 (NSW), s 36A(1)
Health and safety standards
Sydney Trains is a “rail transport operator” within the meaning of s 4(1) of the Rail Safety National Law 2012 (NSW) (Safety Law). Paragraph 52(2)(b) of the Safety Law provides that a rail transport operator must ensure, as far as is reasonably practicable, that each “rail safety worker” who performs “rail safety work” in relation to the operator’s railway operation is of “sufficient good health and fitness to carry out that work”, and “competent to undertake that work”. The expression “rail safety work” is defined in s 8(1) of the Safety Law to mean, among other things, “driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock”; and a “rail safety worker” is defined in s 4(1) of the Safety Law as an “individual who has carried out, is carrying out, or is about to carry out, rail safety work”.
Section 114 of the Safety Law provides that a rail transport operator “must prepare and implement a health and fitness program for rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to health and fitness programs”. Requirements relating to health and fitness programs have been prescribed by reg 27 of the Rail Safety National Law Regulations 2012 (NSW). That regulation provides that, for the purposes of s 114 of the Safety Law, a rail transport operator must have, and must implement, a health and fitness program for rail safety workers that complies with the National Standard for Health Assessment of Rail Safety Workers (National Standard), published by the National Transport Commission, as amended from time to time.[2]
[2] The 2017 edition of the National Standard applied at the time Ms Annovazzi applied for, and was employed in, the position of trainee train driver
The purpose of the National Standard is to provide practical guidance for rail transport operators to manage the risk posed by the ill-health of rail safety workers.[3] The principal means by which the National Standard seeks to manage such risks is by requiring railway operators to establish systems and procedures to ensure rail safety workers receive the appropriate level and frequency of health assessment that corresponds with the risk associated with the tasks they perform.[4] To that end the National Standard categorises rail safety workers according to the risks associated with the activities they are expected to perform. Relevant to the proceeding before me is the “Category 1 Safety Critical Work/Workers” (Category 1 Workers). These are “the highest level of Safety Critical Worker”:[5]
These are workers who require high levels of attentiveness to their task and for whom sudden incapacity of collapse (e.g. from a heart attack or blackout) may result in a serious incident affecting the public or railway network. Single-operator train driving on the commercial network is an example of a Category 1 task.
[3] National Standard, [1.1]
[4] National Standard, page 27
[5] National Standard, page 29 (emphasis in original)
The National Standard provides that a rail safety worker should receive the health assessment commensurate with their rail safety work risk category; and it sets out, first in summary form, and then in detail, the means by which a health assessment should be undertaken in relation to each category of worker.[6] The procedures in relation Category 1 Workers include the following:[7]
(a)The aim of a health assessment of a Category 1 Worker is “to detect conditions that may impact on their vigilance and attentiveness to their work”. Examples of such conditions are cardiovascular disease, diabetes, epilepsy, “various other neurological conditions”, sleep disorders, alcohol and drug dependence, psychiatric disorders, and visual problems.
(b)The health assessment “comprises a health questionnaire and clinical examination”.
(c)The “health questionnaire” is “self-administrated”; it “collects a general history and helps identify specific conditions that might affect rail safety performance”.
[6] National Standard, page 30
[7] National Standard, page 30
15 February 2015 – Ms Annovazzi consults Dr Frukacz
On about 15 February 2015, Ms Annovazzi consulted Dr Frukacz, a psychiatrist, in relation to difficulties she experienced at university.[8] Ms Annovazzi had suspected, since the age of 15 years, that she had autism spectrum disorder.[9] Ms Annovazzi consulted Dr Frukacz to explain her belief that she had Asperger’s Syndrome.[10]
[8] T72.15
[9] T75.15
[10] T75.40
Ms Annovazzi does not say that Dr Frukacz provided her with a diagnosis; but she accepts that in documents Dr Frukacz completed for Ms Annovazzi’s university, he used the words “Asperger’s Syndrome” to describe her condition.[11] Ms Annovazzi was concerned, however, that this diagnosis had been superseded because, as a psychology student, she had become aware that “DSM-5 had come into effect”.[12] Ms Annovazzi says that, as “a psychology student, [she] had looked at the DSM to come to the conclusion of whether [her] belief formed at 15 years old was correct”.[13] Ms Annovazzi accepted that, to varying degrees, she has a number of the clinical attributes common to people with autism spectrum disorder.[14]
[11] T76.25
[12] “DSM-5” is a reference to the “Diagnostics and Statistical Manual, version 5”: see T113.35
[13] T76.30
[14] T77.40
Ms Annovazzi acknowledged in evidence given under cross-examination that she had been diagnosed with ADHD.[15] Ms Annovazzi said that she would infer she had been diagnosed with ADHD because Dr Frukacz prescribed medication to treat the condition.[16] This occurred before Ms Annovazzi applied to become a trainee train driver with Sydney Trains (as to which see below).[17] Ms Annovazzi, however, did not truly believe she had ADHD until she felt the difference the medication made.[18]
[15] T78.5
[16] T78.10
[17] T78.25
[18] T78.35
11 March 2017 – Ms Annovazzi applies for position of trainee train driver
On 11 March 2017 Ms Annovazzi submitted an online application for the position of trainee train driver with Sydney Trains.[19] The online application Ms Annovazzi completed asked two questions relating to disability. One asked if Ms Annovazzi has a “diagnosed condition for which you may require reasonable adjustment throughout the selection process”. Ms Annovazzi answered “no”. The second question was whether Ms Annovazzi “had any impairment or condition which would affect your ability the job for which you have applied”. Ms Annovazzi also answered this question “no”.
[19] Affidavit of Tracy Samassa 04.09.2020, [6], “TS-1”
In the complaint (Complaint) Ms Annovazzi lodged with the Australian Human Rights Commission (AHR Commission),[20] Ms Annovazzi stated that, to the best of her knowledge, she did not have any impairment or condition which would affect her ability to perform the job for which she applied. Ms Annovazzi further stated:[21]
My Asperger's Syndrome and Attention Deficit Hyperactivity Disorder (ADHD) has not prevented me from living independently from the age of eighteen, maintaining employment, attending university and volunteering in roles such as university outreach programs and as a motorsport official in various capacities such as flag marshal and scrutineer. I consider myself to be on the extremely high functioning end of the autistic spectrum and, considering the variety of life experience I have amassed, could fathom no reason why I would be incapable of working as a train driver.
[20] Exhibit A
[21] Exhibit A
15 March 2017 – Ms Annovazzi consults with Dr Frukacz
In the Complaint Ms Annovazzi further says that, after she submitted the online application for the position of trainee train driver, to reassure herself, she took the opportunity to ask her psychiatrist, who had been treating her for approximately two years since 15 February 2015, his professional opinion. According to Ms Annovazzi, the psychiatrist “agreed with my assessment and the answers submitted”.[22] In response to an objection by counsel for Sydney Trains, I did not admit this statement into evidence, but I permitted Ms Annovazzi to give oral evidence about the matters referred to by the statement. Given Ms Annovazzi was not represented, I asked the necessary questions to elicit Ms Annovazzi’s evidence, which was as follows:[23]
[22] Exhibit A
[23] T69.25
HIS HONOUR: All right. Now, you – if you can go down under the heading “what happened” to the second paragraph in that section. Do you see that?‑‑‑Yes, your Honour.
Now, what you there say is that you took the opportunity several days later to “ask my psychiatrist, who, at that point, had been treating me for approximately two years, his professional opinion.” Do you see that?‑‑‑Yes, your Honour.
. . . who was your psychiatrist, just for the record?‑‑‑Dr Andrew Frukacz.
Frukacz. All right. Do you recall seeing him around 15 March 2017?‑‑‑Yes, your Honour.
. . . Do you recall why you went to see him?‑‑‑Yes, your Honour.
All right. Do you recall what was said in your meeting with him?‑‑‑Not the precise wording but the effect of the wording.
All right. Well, what is it that you recall about what was said at your meeting with Dr Frukacz?‑‑‑A few days previously I had submitted my application for the role of trainee train driver with Sydney Trains. As part of that application I was required to respond to the following questions:
Do you have a disability which may require adjustments to the selection process?
To which I answered no.
Please tell us what type of adjustments to the selection process you may require?
I did not respond to that question.
Do you have a diagnosed condition for which you require reasonable adjustment throughout the selection process? The selection process may include paper based or online tests, behavioural assessments and/or interviews.
To which I answered, no.
If yes, please specify, otherwise type n/a.
To which I typed n/a.
Do you have any impairment or condition which would affect your ability to perform the job for which you have applied?
To which I answered, no.
If yes, please specify, otherwise type n/a.
To which I typed n/a. During an already scheduled appointment with Dr Frukacz on that date, I was concerned that there was a possibility that I had been dishonest in the application when I answered no to the specific question, “do you have any impairment or condition which would affect your ability to perform the role for which you have applied?” I was concerned about the specific word “affect”. My disabilities are a part of me for both positive and negative, in which to say, they could affect my performance for any job in both positive and negative ways. As an autistic person I have a tendency to take the wording very literally, of statements. Therefore, I could determine that, in the strictest possible sense, I had answered the question incorrectly but had I answered in the alternative it would have certainly been incorrect.
But did – what is it that you discussed with Dr – with your doctor at this meeting?‑‑‑That exact question.
So do you recall what you said to him, words to the effect?‑‑‑I told him that question and I voiced my concerns that I had not been completely upfront because I was unsure how to answer such a question honestly ‑ ‑ ‑
Okay. And you ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ in the absolute.
And you recall what the doctor said to you, words to the effect of?‑‑‑He reassured me that I had interpreted the question correctly and that I had answered as would have been intended.
All right. Is there anything else that you remember about that meeting?‑‑‑I pressed it because I was very concerned because of the ambiguousness of the way the question was phrased and Dr Frukacz said words to the effect of, “be quiet and let it go, we need to move on.”
22 May 2017 – Ms Annovazzi completes health questionnaire
On 22 May 2017 Ms Annovazzi completed a “Transport Agency Pre-Employment Health Questionnaire” (Medical Questionnaire). Ms Annovazzi ticked the box for “no” in relation to questions 1, 2, and 7 that appeared on page 1 of the Medical Questionnaire, which is headed “Transport Agency Pre-Employment Health Questionnaire”. These questions are as follows: [24]
[24] Affidavit T Samassa 04.09.2020; exhibit TS-1, page 15
1. Are you currently being treated by a doctor for any illness or injury?
2.Are you receiving any medical treatment or taking any medication (prescribed or otherwise)? Please provide brief details below and take your medications with you to show the doctor.
. . . .
7.Have you ever had, or been told by a doctor that you had . . . [a] psychiatric illness or nervous disorder?
The second page of the Medical Questionnaire, which is headed “Critical Incident Exposure Questionnaire”, contains question 4 to which Ms Annovazzi answered “no”. Question 4 is as follows:
Have you previously been treated or believe that that you would have benefited from treatment for a psychological issue? (e.g. stress related disorder, depression, anxiety)
In her affidavit of 18 May 2021,[25] Ms Annovazzi stated that she stopped using dexamphetamine “months prior”. There is in evidence, however, a photograph of a bottle which had a label that included “Dexamphetamine Tablets” that Ms Annovazzi sent by text message to Mr Bellia on about 2 November 2017 (as to which, see later).[26] The label records the name of Ms Annovazzi, and states “take two tablets”. It also appears to contain the numbers “05/17”, but it is not possible from the copy of the label that is in evidence to determine whether there are numbers before “05/17”. The inference is available to be drawn, however, that sometime in May 2017 Ms Annovazzi had presented to a chemist a script for dexamphetamine tablets, and the chemist provided to Ms Annovazzi a bottle containing such tablets.
[25] Exhibit B, at [2]
[26] Affidavit of Daniel Bellia, annexure DB-2.

In evidence given under cross-examination, Ms Annovazzi denied she was taking medication at the time she completed the Medical Questionnaire;[27] and Ms Annovazzi disagreed that her consultations with Dr Frukacz constituted medical “treatment”.[28] Ms Annovazzi said it would have been inaccurate to answer “yes” to the second question of the Medical Questionnaire because she was not then taking the medication.[29] Ms Annovazzi also denied that ADHD is a “nervous disorder”, or an illness. Ms Annovazzi said ADHD is “a pervasive medical condition that has existed in a person who has it since before they were even born”.[30] Ms Annovazzi disagreed she understood that autism spectrum disorder is a recognised psychiatric illness; she disagreed that she knew that the proper answer to question 7 of the Medical Questionnaire was “yes”. Ms Annovazzi said: “I’m not ill. There’s nothing wrong with me, and I’m not less than anybody else”.[31]
[27] T124.15
[28] T124.15
[29] T124.35
[30] T125.30
[31] T125.45
Ms Annovazzi was also cross-examined about her consultations with Dr Frukacz before she had completed the Medical Questionnaire. Ms Annovazzi did not accept that “treatment” properly characterised the nature of her consultations with Dr Frukacz.[32] Ms Annovazzi did not accept that Dr Frukacz helped her gain greater insight into her autism spectrum disorder, or at least not “in the most directly interpretative manner” as suggested by the question whether Dr Frukacz helped Ms Annovazzi gain greater insight.[33] Ms Annovazzi said that Dr Frukacz was a psychiatrist, not a therapist;[34] he provided concrete help by preparing prescriptions, medical certificates, and disability paperwork for the university.[35] Dr Frukacz did not speak to Ms Annovazzi about any condition so much, but instead tended to ask more general questions about what Ms Annovazzi was doing in her life, and Ms Annovazzi bounced ideas off Dr Frukacz.[36]
[32] T127.10
[33] T127.20
[34] T132.5
[35] T132.15
[36] T132.30
22 June 2017 – Ms Annovazzi attends medical examination
On 22 June 2017 Ms Annovazzi was examined by a Dr Prahvind Kumar, an employee of a business that trades under the name of “Sonic HealthPlus”. In the Complaint Ms Annovazzi says:[37]
During this appointment, I fully disclosed my Asperger’s Syndrome, ADHD and previously prescribed usage of dexamphetamine, including that it was only for periods of intense stress and not required on a day to day basis.
[37] Exhibit A
Ms Annovazzi gives the following account in her affidavit of 18 May 2021 (errors in original):[38]
On the 22/06/2017, I attended a pre-employment medical with Sonic Health, at their Parramatta location for the role of Trainee Train Driver with Sydney Trains.
During the last portion of the appointment, I was sitting in a room at the back of the location behind and to the right of the health professional, whom I have since learned is named Doctor Pravind Kumar, while he was sitting at a desk, filling out paperwork. I verbally disclosed my diagnoses of Asperger’s Syndrome and Attention Deficit Hyperactive Disorder to the doctor, and previous prescribed use of dexamphetamine for the latter, including that I had stopped using it months prior. After I stopped talking Dr Kumar made a dismissive gesture with his right hand (a downward flapping motion) while saying “oh, that doesn't matter” in response to my disclosure. He did not tum around to face me while doing so.
I then offered the doctor my specialist’s (Dr Andrew Frukacz) business card, which I had removed from my bag prior to speaking and held in my hand. Dr Kumar made a different dismissive gesture with his right hand (shaking it left to right with his palm facing me) and did not respond beyond that. He had not waited until I stopped talking before he responded.
Approximately two minutes after my disclosure, Dr Kumar appeared to finish his paperwork, gave a short explanation regarding the declaration required on both the Pre-Employment Health Assessment Questionnaire and the Critical Incident Exposure Questionnaire, witnessed my signature on both, signed both questionnaires himself and ended the appointment.
[38] Exhibit B
Dr Kumar completed a document headed “Examination Record” that was attached to the Medical Questionnaire (Examination Record).
Ms Annovazzi was cross-examined about this evidence. As will appear later, after Ms Annovazzi commenced her employment with Sydney Trains, she asked Mr Bellia to whom she should disclose “medication stuff”, and provided to Mr Bellia a photograph of a bottle with the label “Dexamphetamine Tablets”. It was put to Ms Annovazzi that she disclosed this information to Mr Bellia because she was taking a prescription for dexamphetamine in May 2017. Ms Annovazzi disagreed:[39]
I was not taking dexamphetamine and I never made such a claim or disclosure to any employee of Sydney Trains. I was frustrated with the quality of the training provided by Sydney Trains, but seeing it as a temporary situation, sought permission, or to have the paperwork filled out, so that if I was subject to drug testing and it showed up in my system after the paperwork had been filled out, that I would not get in trouble for having amphetamines in my system. I wanted to be able to take the dexamphetamine to help me deal with the frustration of a temporary situation.
[39] T133.15
It was also put to Ms Annovazzi that there was no reason for her to have made the disclosure to Mr Bellia if, as Ms Annovazzi said she did, she had made that disclosure to Sonic Health. Ms Annovazzi said:[40]
Of course there was. I told the doctor I wasn’t taking it, so he had no reason to do any paperwork or inform anybody that me testing positive to it was a possibility, because I shouldn’t have, but if I wanted to change that, I needed to tell somebody before I got drug tested.
[40] T133.25
30 August 2017 – Sydney Trains offers Ms Annovazzi position of trainee train driver
By letter dated 30 August 2017, Sydney Trains offered Ms Annovazzi employment as a trainee train driver commencing on 13 October 2017. Clause 12 of the offer provided that Ms Annovazzi would be employed on a probationary period of six months, which may be extended by any period or periods of leave, or for a further six months at the Sydney Trains’ discretion. Clause 14 concerned training:
As part of your position, you will be required to complete the Passenger Train Driver Program. As part of this training, you will be required to obtain competencies by completing a number of assessments. It is an inherent requirement of your role as Trainee Train Driver that you pass these assessments and obtain these competencies.
Sydney Trains requires that you successfully pass each· assessment on your first attempt of the assessment. You may not be provided with a second opportunity to complete the assessments.
Should you fail to successfully pass any assessment on the first attempt, your employment with Sydney Trains will be terminated on notice unless you can establish that there are exceptional circumstances as to why you failed the assessment(s). ·
Ms Annovazzi commenced her employment with Sydney Trains on 13 October 2017.
First three weeks of employment
According to Ms Annovazzi, during the first three weeks of her employment with Sydney Trains, she struggled with “culture shock and the nomenclature specific to the rail industry”. Ms Annovazzi refers, as an example, to the different interpretation the railway uses for air pressure scale to that found outside the industry. Ms Annovazzi says the trainers did not understand there was a difference and “so were ill-prepared to answer” her questions “regarding 0 kPa in pneumatic systems on the trains”. Ms Annovazzi suffered confusion which costs her marks in the assessment contributing to a “Not Yet Competent (NYC) result”. Further, the “perception given by the letter of offer . . . that an unsuccessful attempt at an assessment would be grounds for immediate dismissal caused a great deal of unnecessary stress at the time as it proved to be untrue”.[41]
[41] Exhibit A
Late October 2017 – Mr Bellia receives emails in relation to Ms Annovazzi
On 26 and 30 October 2017, Mr Bellia received three emails from other employees of Sydney Trains that related to Ms Annovazzi. At that time Mr Bellia was employed by Sydney Trains as a Train Crew Coordinator.[42] In that role Mr Bellia was responsible for overseeing trainee drivers’ behaviour while they were completing their training courses, and considering and approving leave requests.[43] In evidence given under cross-examination, Mr Bellia said that the role of coordination involved overseeing how trainees perform through a course, and coordinating their way through the course to best suit their needs, and the needs of Sydney Trains.[44]
[42] The emails are annexed to the affidavit of D Bellia
[43] Affidavit of D Bellia, [2]
[44] T187.45
The first of the three emails Mr Bellia received was an email Mr Stephen Hopkins, a driver trainer, sent on 26 October 2017 to a number of other Sydney Trains employees. Mr Hopkins referred to Ms Annovazzi and another employee having raised an issue about a third employee’s posting on social media a message that he was feeling nervous about “Safe Work 1 Assessments”.
The second email Mr Bellia received was an email another trainer driver, Mr Carter, sent on 30 October 2017 to Mr Easterbrook, in which Mr Carter stated the following (errors in original):
I would like to advise/remind you of an incident which occurred on Friday 27 October 2017 in Room 18 at Peetersham.
We were talking to a trainee, Renee Annovazzi from TD10B-17 about the necessity to re-it the Safeworking 1 assessment, which Renee was NYC in.
We were advising Renee that the assessment needed to be re-sat.
I suggested Renee to re-sit it as soon as possible, as there was a lot to remember , especially with the upcoming courses.
Renee moved her right hand across her body from left to right. She simultaneously said to me, “You shut up!”
Another trainee was sitting beside Renee. His name is Judd Young. He immediately reacted with a surprised look at Renee’s direction.
I promptly walked away, without making further comment.
I advised Val Shepherd, (who had not heard anything) and made note of this.
I later spoke to you to confirm I heard correctly.
The third email was sent by Mr Easterbrook to Ms Soula Vlahos and Mr Bellia. Ms Vlahos was the Manager, Training & Competence Assurance. In his email (which, in the copy that is in evidence, records no date) Mr Easterbrook stated as follows (errors in original):
Hi Soula & Dan,
Another Friday afternoon special.
I went to discuss with Trainee Driver Renee Annovazzi (TD10B-17) regarding the best time for her to re-sit her 2^nd attempt at Safeworking 1.
During this time, Mark Carter mentioned that “Air and Electrical systems was quite a heavy content course” and Renee rebutted with “You, shut up” (To Mark Carter).
The class was leaving the class at this point in time and was not the best place or time to discuss this with her.
Could this be documented also with Dan (as apparently you are coming on Monday to talk with her?
This trainee has a real attitude which comes across as very combative and not accountable. To talk as she did this early in the course to trainers is obviously quite inappropriate.
I have put this on her trainee file.
According to Mr Bellia,[45] shortly after he received the emails, he had the following conversation with Ms Annovazzi:
Mr Bellia: I have received notification of some behavioural issues including you having an issue with Glenn Anderson and you telling one of the trainers, Mark Carter, to “shut up”.
Ms Annovazzi:           It’s because I have ADHD.
Mr Bellia: That’s not really an excuse for your behaviour.
Ms Annovazzi:           But I have Asperger’s Syndrome too.
Mr Bellia: Did you disclose this during recruitment?
Ms Annovazzi:           Yes.
[45] Affidavit of D Bellia, [4]
Ms Annovazzi has not in any of her affidavits disputed she had such a conversation with Mr Bellia; and Ms Annovazzi appears to have cross-examined Mr Bellia on the basis that she accepted that such a conversation did occur.[46] In the course of his cross-examination, Mr Bellia said that the conversation took place by telephone;[47] he was aware that Ms Annovazzi sat for a second Safe Working 1 assessment, and that she was assessed as competent;[48] Mr Bellia agreed he had “affirmed” that Ms Annovazzi “advanced” that she “had a medical condition as a defence to misconduct allegations”, and Mr Bellia did not question that further because it was not his role to question further; but Mr Bellia did not accept that he had accepted disabilities as an acceptable explanation for misconduct.[49]
[46] T196.45-T200.20
[47] T197.20
[48] T198.20
[49] T199, [15]
It is likely, and I therefore find, that Mr Bellia had a conversation with Ms Annovazzi about Ms Annovazzi’s behaviour, as reported in the emails Mr Bellia received. I do not accept, however, the balance of Mr Bellia’s account of the conversation. First, in a text message he sent to Ms Annovazzi on 2 November 2019 (which I set out below), Mr Bellia asked Ms Annovazzi whether she had told recruitment that she had ADHD. It is improbable that Mr Bellia would have asked that question in his text message if he had already asked that question in any conversation he had with Ms Annovazzi. Second, in the “briefing note” dated 9 November 2017 (to which I refer below), Mr Bellia refers to Ms Annovazzi having told Mr Bellia she takes medication to treat her ADHD condition, and Ms Annovazzi “subsequently” told Mr Bellia that she suffers from “Asperber Syndrome”. The “briefing note”, therefore, suggests Ms Annovazzi told Mr Bellia that she had ADHD on one occasion, and on a separate occasion told Mr Bellia Ms Annovazzi suffers from “Asperber Syndrome”. Nothing turns, however, on whether I accept or do not accept Mr Bellia’s account of his conversation with Ms Annovazzi.
Early November 2017 – Ms Annovazzi asks Mr Bellia who she should ask about taking medication
On 2 November 2017 Ms Annovazzi initiated the following text message exchange with Mr Bellia:[50]
Ms Annovazzi: is it you that we send medication stuff to?
Mr Bellia: Medication stuff?
Ms Annovazzi: what we’ve got so if we get drug tested and it shows up we don’t get in trouble
Mr Bellia: Yeah mate that’s fine send it through
[50] Affidavit R Annovazzi 14.09.2020, annexure “RA-02”
Ms Annovazzi then sent to Mr Bellia by text a photo of a bottle to which there was attached a label with words that included “Dexamphetamine Tablets”. In a text message to Mr Bellia, Ms Annovazzi stated “label is a bit faded cause it’s an old bottle but ill [sic] have a new one tomorrow”. The text message exchanges continued as follows (errors in original):
Mr Bellia: What do you take that for mate?
Ms Annovazzi:           adhd. but i only ever use it when studying for uni. havent had any in months. doc gave it to me to use on an as needed basis.
Mr Bellia: Ah ok
. . . .
Ms Annovazzi:           am i ok to take the dex?
Mr Bellia: I’m finding out for you
Did you tell recruitment you had adhd
Ms Annovazzi:           no
Mr Bellia: ok
Ms Annovazzi:           i told the doc in the medical
Mr Bellia:Ah ok
The text messages I have reproduced are from the text messages Ms Annovazzi annexed to her affidavit of 14 September 2020 (RA-2 text messages). Mr Bellia annexed only some of the text messages, these being the photograph and the following text messages that preceded the photograph (Part RA-2 text messages):
Ms Annovazzi: is it you that we send medication stuff to?
Mr Bellia: Medication stuff?
Ms Annovazzi: what we’ve got so if we get drug tested and it shows up we don’t get in trouble
Mr Bellia: Yeah mate that’s fine send it through
Mr Bellia says that after this exchange of text messages, he telephoned Ms Annovazzi and asked her what her medication was for. Mr Bellia further says he asked Ms Annovazzi whether she had disclosed this at her medical, in response to which Ms Annovazzi said “no”.[51] In evidence given during Mr Bellia’s cross-examination, Mr Bellia accepted that his account of the telephone conversation, in which Ms Annovazzi said that she did not disclose during her medical that she had been taking medication, was inconsistent with the text message Ms Annovazzi sent to Mr Bellia in which she said she told the medical that she had ADHD.[52]
[51] Affidavit of D Bellia, [6]
[52] T205.15
I do not accept that Mr Bellia had a conversation with Ms Annovazzi as he deposes. The text message exchange on its face exhausted the topic to which it referred, namely, the identification of the person who would tell Ms Annovazzi whether she could take dexamphetamine, why Ms Annovazzi proposed to take such medication, and whether Ms Annovazzi had disclosed to recruitment that she had ADHD. It is improbable that, having asked by text message for what reason Ms Annovazzi was taking dexamphetamine, Mr Bellia would have telephoned Ms Annovazzi and ask her the same question.
2 November 2017 – Mr Bellia informed Ms Vlahos of Ms Annovazzi’s inquiry
Mr Bellia says that, after his conversation with Ms Annovazzi, he went and spoke to Ms Vlahos who, as I have already noted, was employed by Sydney Trains as Manager, Training & Competence Assurance. Mr Bellia provided to Ms Vlahos a copy of his text message exchanges with Ms Annovazzi.[53] In evidence given in answer to questions I asked, Mr Bellia said he had forwarded to Ms Vlahos the entire exchange of text messages that passed between him and Ms Annovazzi, that is, the RA-2 text messages.[54]
[53] Affidavit of D Bellia, [7]
[54] T205.40-T206.20.
I accept Mr Bellia’s evidence that he spoke to Ms Vlahos about the text message communications he had with Ms Annovazzi; and that is because at 3:18 pm on 2 November 2017, Ms Vlahos sent an email to Dr Casolin, the Chief Health Officer for Sydney Trains and NSDW Train Link. In her email Ms Vlahos stated the following:[55]
We have been advised by Trainee Driver Renee Annovazzi who joined in October 2017 (TD10B) that she is taking the below medication/dosage by her doctor for a medical condition (AHDH), can you please advise if she is still able to remain in her Category 1 rail Safety Worker status whilst on this medication?
5mg Aspen Dexamphetamine
[55] Affidavit of A Casolin, [11], annexure AC-2
There is a question whether Mr Bellia sent to Ms Vlahos all of the RA-2 text messages. In her email to Dr Casolin, Ms Vlahos attached only the Part RA-2 text messages. In evidence given in answer to questions I asked, Mr Bellia said he had returned his phone to Sydney Trains, but “what has happened is this has all gone to Soula Vlahos but I’ve only received . . . part of that”.[56] From this evidence I understand Mr Bellia intended to say that a copy of the Part RA-2 text messages was extracted from the phone by another person, and Mr Bellia later received only the Part RA-2 text messages. I accept Mr Bellia’s evidence, and find that Mr Bellia returned his phone to Sydney Trains but, at the time he made his affidavit, he was provided with only the Part RA-2 text messages.
2 November 2017 – Sonic HealthPlus informs Dr Casolin that the file does not record Ms Annovazzi’s disclosed ADHD
[56] T206.15
At 3:25 pm on 2 November 2017 Dr Casolin sent an email to Dr Jones of Sonic HealthPlus attaching the email from Ms Vlahos, and stating:[57]
[C]an you please let me know if Ms Annovazzi’s ADHD had been declared and assessed.
[57] Affidavit of A Casolin, [12], annexure AC-3
Dr Jones responded by sending the following email to Dr Casolin at 4:47 pm on 2 November 2017:[58]
Pre-employment Cat 1 assessment in May 2017 is all we have on file. No mention of any relevant history or medication. Specific denial of any psych issues. AOD test is clear.
So if it existed previously, undeclared, and if it has been diagnosed since, has not been subject to any form of assessment such as an FFD …
…yet
[58] Affidavit of A Casolin, [12], annexure AC-3

At 4:57 pm on 2 November 2017 Dr Casolin sent the following email to Ms Vlahos:[59]
[T]he problem is that ADHD is a problem for a train driver and the condition was not declared and assessed at the pre-employment assessment so Ms Annovazzi is temporarily unfit and should be referred back to Sonic for a FFD with a psychiatrist.
[59] Affidavit of A Casolin, [13], annexure AC-4
By email sent at 5:02 pm on the same day Dr Casolin asked Ms Vlahos to ask Ms Annovazzi “when the ADHD was diagnosed and the dexamphetamine prescribed”.[60] Ms Vlahos responded by email sent on 3 November 2017 in which she said she “will follow up and let [Dr Casolin] know”.[61]There is no evidence that Ms Vlahos asked Ms Annovazzi about when Ms Annovazzi was diagnosed with ADHD, or about when she had been prescribed with dexamphetamine.
[60] Affidavit of A Casolin, [14], annexure AC-5
[61] Affidavit of A Casolin, [14], annexure AC-5
6 November 2017 – Ms Annovazzi is taken out of the trainee drivers course
On 6 November 2017 Ms Annovazzi was taken out of the trainee drivers course, and placed on light duties at the Burwood office of Sydney Trains. While in that office, Ms Annovazzi helped in a variety of areas. This included helping to coordinate several weeks of panel interviews for train crew positions, assisting with customer complaints, delivering resources to depots, and performing miscellaneous errands.[62] According to evidence Ms Annovazzi gave under cross-examination, on the day she was removed to light duties, Mr Bellia told Ms Annovazzi that he was “looking into a medical, or trying to get hold of Dr Casolin”.[63]
[62] Exhibit A
[63] T137.10
9 November 2017 - Mr Bellia prepares “briefing note”
On or shortly before 8 November 2017, Ms Vlahos requested Mr Bellia prepare a “briefing note”.[64] At 11:19 am on 8 November 2017 Mr Bellia sent an email to Dr Casolin attaching a document Mr Bellia described in his email as “Request for FFD for Renee Annovazzi”.[65] At 11:49 am on 8 November 2017 Dr Casolin sent the following email to Mr Bellia:
Thanks Daniel can you please reword the memo to clarify that the conditions (ADHD and Aspergers) have not been previously declared to Sonic and taken into consideration in determining if Ms Annovazzi is fit for category 1 work as a train driver and that we are asking for a psychiatric (and neuropsychological if needed) assessment to determine if these conditions affect Ms Annovazzi’s fitness to work as a train driver, including the impact of forgetting to take dexamphetamine on her attentiveness.
[64] T207.1
[65] Affidavit of A Casolin, [16], annexure AC-6
The document Mr Bellia attached to his email to Dr Casolin is not in evidence.
On 9 November 2017 Mr Bellia sent to Health Solutions a “Briefing Note” (Briefing Note), which stated the following (errors in original and emphasis added):[66]
Trainee Driver Annovazzi is currently in the Trainee Drivers School TD10B17, which commenced on 13 Oct 17.
Trainee Driver Annovazzi is a Category 1 Rail Safety Worker.
Trainee Driver [AB] advised and declared to Myself (Daniel Bellia) Train Crew Capability Coordinator, that she wanted to identify to Sydney Trains that she was taking Dexamphetamine to cover herself in the event of being drug tested. Renee also stated she had recently been prescribed a new script for 5mg Aspen Dexamphetamine — to be taken as required.
Advice email was sent on Thursday 2 Nov 17 by Soda Vlahos to Dr Casolin for his opinion on the prescribed medication.
Trainee Driver Annovazzi told me that she takes the medication to treat her ADHD condition, she also told me subsequently that she suffers from Asperger Syndrome, for each of these conditions Trainee Driver Annovazzi stated that she has received no formal diagnosis.
Trainee Driver Annovazzi stated that she did not declare either condition ADHD or Aspergers Syndrome to Sonic health so these conditions were not taken into account whilst Trainee Annovazzi's suitability to undertake Category 1 work as a Train Driver was being assessed. We are requesting for Health Solutions to refer Trainee Driver Annovazzi for a Psychiatric and if required a neuropsychological assessment to determine if she is suitable for Category 1 work, and also the impact that not being able to take dexamphetamine could have on her attentiveness.
[66] Affidavit of D Bellia, [8]; annexure DB-3
The Briefing Note records the name “Trainee Driver [AB]”. In evidence given under cross-examination, Mr Bellia said that his mentioning [AB] was a typographical error “because we had another trainee going through a fitness for duty as well for ADHD at the same time, [AB]”.[67] Later in his cross-examination Mr Bellia gave the following evidence:[68]
What is your understanding of the term attention deficient hyperactivity disorder?‑‑‑Not a lot. Just that people that suffer from ADHD can struggle to maintain concentration.
Given you’ve handled – given you’ve been involved with the cases of many trainees do you see any reason why the diagnosis of ADHD alone would mean that a trainee could not fulfill the inherent requirements of the job?‑‑‑No, of course not because [AB] is a perfect example.
So there are train drivers who have ADHD?‑‑‑Yes.
Are there train drivers that take dextroamphetamine? [sic]‑‑‑I’m unaware.
You’re unaware?‑‑‑Unaware, yes.
[67] T208.20
[68] T215.35
The portion of the Briefing Note I have emphasised is inconsistent with the RA-2 text messages where, in answer to Mr Bellia’s conversation whether Ms Annovazzi disclosed to recruitment that she had ADHD, Ms Annovazzi said “ no . . . [I] told the doc in the medical disclosed to recruitment”. In evidence given under cross-examination, however, Mr Bellia did not accept there were any inaccuracies in the “Briefing Note”.[69] Mr Bellia said that, although there could be inaccuracies in the Briefing Note “it’s all based on what [Ms Annovazzi] said”.[70]
[69] T214.45
[70] T215.5
I do not accept that the Briefing Note accurately records information Ms Annovazzi provided to Mr Bellia. On the contrary, I find it is inaccurate to the extent it states that “Trainee Driver Annovazzi stated that she did not declare either condition ADHD or Aspergers [sic] Syndrome to Sonic health [sic]”. Further, I am not prepared to find that persons involved in deciding that Ms Annovazzi be dismissed from her employment were unaware of the text message Ms Annovazzi sent to Mr Bellia on 2 November 2017. As I have already found, Mr Bellia had returned his phone to Sydney Trains, and subsequently Sydney Trains had returned to him, for the purpose of making his affidavits, parts of the email exchange he had with Ms Annovazzi on 2 November 2017.
An inference is available to be drawn that, in the draft Briefing Note Mr Bellia sent to Dr Casolin on 8 November 2017, Mr Bellia did not state that Ms Annovazzi had not previously declared to Sonic Health she had ADHD or Asperger’s Syndrome; but that Mr Bellia added this statement in response to the request Dr Casolin made in the email he sent to Mr Bellia 11:49 am on 8 November 2017 that Mr Bellia “reword the memo to clarify to clarify that the conditions (ADHD and Aspergers [sic]) have not been previously declared to Sonic and taken into consideration in determining if Ms Annovazzi is fir for category 1 work”. I do not propose to draw such an inference because the possibility of such an inference being true was not put to Mr Bellia, or to Dr Casolin.
30 November 2017 – Briefing note referred to TSS Health Solutions
On 30 November 2019 Ms Zoobaida (Zoe) Zidan sent an email to Ms Stephanie Majstorovic, and Ms Michelle Whitton, who appears to be part of “TSS Health Solutions”. [71] The email was copied to Dr Casolin and Ms Vlahos. The email stated it attached three documents – “Health Solutions Referral Checklist”, “Briefing Note”, and “PD”, but the documents the email attached are not in evidence. It is open to infer, however, and I find, that the “Briefing Note” Ms Zidan attached to her email is the Briefing Note. According to the email, Ms Zidan held the position of “Train Crew Training Coordinator Operations Support”.
[71] Affidavit of A Casolin, [17]; annexureAC-7
At 11:32 am on 1 December 2017, a Mr Dean Lesser sent the following email to Ms Zidan:[72]
Hi Zoobaida,
I am coordinating this referral.
I left a message on your mobile earlier as I would like to discuss a couple of issues with this case before we can determine course of action with regards to the FFD request.
I will be in the office until 4 pm today.
[72] Affidavit of A Casolin, [17]; annexureAC-7
According to the email he sent, Mr Lesser held the position of “Senior Health Solutions Coordinator Injury & Claims Management | Transport Shared Services”. Sydney Trains has not filed any affidavit made by Mr Lesser; and in none of the affidavits Sydney Trains read at the hearing is there any evidence about the nature and role of “Transport Shared Services”. The only evidence about the nature and role of “Transport Shared Services” was that Ms Samassa, Sydney Train’s Director of People and Culture, in response to a question I asked stated:[73]
And who’s Transport Shared Services?‑‑‑That would be – they – they managed – basically, the Sonic and that whole relationship around medical – the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport – so the – our worker’s compensation, for instance, is under that shared services. A lot of our functions with them – Sydney Trains – come under Transport Shared Services.
[73] T247.20
From this evidence, I find that Transport Shared Services (TSS) was a group of persons who provided services to Sydney Trains and possibly to other New South Wales agencies that provided transport services, including services relating to medical assessments of employees or potential employees.
20 December 2017 – Ms Annovazzi is requested to obtain medical opinion
On 20 December 2017 another employee of Sydney Trains, Mr Bill Chami, sent the following email to Ms Annovazzi:[74]
As discussed, could you please provide a medical note/briefing from your treating physician regarding the use of Dexamphetamine and the conditions of ADHD and also Asperger Syndrome.
[74] Affidavit of R Annovazzi 07.02.2019, annexure E
According to Ms Annovazzi, she telephoned Dr Frukacz’s office, but his secretary told Ms Annovazzi that Dr Frukacz had already gone on leave.[75] Ms Annovazzi says she was “given the date of his return in January 2018”, and Ms Annovazzi relayed this information to Mr Chami.[76] I accept this evidence.
[75] T138.15
[76] Exhibit A
8 January 2018 – Ms Zidan requests update
At 2:55 pm on 8 January 2017 Ms Zidan sent an email to Mr Lesser and asked him to provide an update.[77] Mr Lesser responded at 8:56 am on 9 January 2017 with the following email:[78]
This is currently sitting with Janene Browning and Dr Casolin at Sydney trains.
We are awaiting further direction from Janene once Ms Annovazzi’s original health assessment has been reviewed by Dr Casolin.
[77] Affidavit of A Casolin, [17]; annexureAC-7
[78] Affidavit of A Casolin, [17]; annexureAC-7
“Janene Browning” occupied the position of “Lead Business Partner, Human resources”.[79] Sydney Trains has not filed an affidavit made by Ms Browning.
[79] Affidavit of T Samara, [11]
9 January 2018 – Ms Zidan requests update
At 2:24 pm on 9 January 2018 Ms Zidan sent an email to Dr Casolin and to Ms Browning asking for an update.[80] Dr Casolin responded by email sent at 3:19 pm on 9 January 2018 in which he stated he believed “that this case is awaiting a FFD”, and that he “was under the impression that the business had sent the referral to TSS”.[81]
[80] Affidavit of A Casolin, [17]; annexureAC-7
[81] Affidavit of A Casolin, [17]; annexureAC-7
Ms Browning responded at 3:36 pm on 9 January 2018 by email sent to Dr Casolin and Ms Zidan, and copied to Mr Lesser, Ms Vlahos, and Ms Ball. The email is as follows (emphasis added):[82]
I have spoken with TSS about the FFD request, and agree with their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period. We have been provided with conflicting information from the employee regarding this matter.
A request was send to Sonic to ask the provider is [sic] declarations were made by Ms Annovazzi during the medical.
Sonic have identified that you have a complete copy of the initial medical assessment. Can you please confirm the following:
- Did she indicate ADHD
- Did she indicate Asperger Syndrome
- Did she indicate the use of Dexamphetamine
Soula Vlahos has also asked for Ms Annovazzi to provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Asperger Syndrome. She was advised this information could be addressed to yourself.
This information will assist us in making the relevant determination in relation to the full disclosure at medical as well as the appropriate management of the employee.
[82] Affidavit of A Casolin, [17]; annexureAC-9
On the basis of Ms Browning’s email of 9 January 2018 it is open to find, and I find, that by 9 January 2019 a person or persons within TSS had formed the view that Ms Annovazzi should not be referred for an FFD assessment, but that “this” “should be treated as a failure to declare on behalf of the employee during the recruitment process”. It is not entirely clear to what “this” was intended to refer. It is open to find, and I do find, that “this” is a reference to the information contained in the Briefing Note to the extent that it refers to Ms Annovazzi. As I have already noted, however, Sydney Trains has not filed an affidavit made by Ms Browning. Further:
(a)there is no evidence that identifies the person or persons within TSS that Ms Browning, in her email of 9 January 2018, said had communicated to her “their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period”;
(b)there is no evidence that identifies the material on the basis of which such persons formed the view referred to in (a);
(c)there is no evidence of the reason or reasons for which the person or persons within TSS formed the view referred to in (a); and
(d)there is no evidence about the purpose or purposes for which Ms Vlahos had requested Ms Annovazzi to “provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Asperger Syndrome”, given that the view referred to in (a) had been formed.
23 January 2018 – Ms Vlahos chases up provision of medical report
According to Ms Annovazzi, on 23 January 2018 Ms Vlahos approached Ms Annovazzi “regarding the letter Transport Sydney Trains was waiting on”. Ms Vlahos “made various comments regarding the urgency”. Ms Vlahos told Ms Annovazzi that Ms Vlahos was “facing trouble from above”; that “a decision could be made without the letter if it wasn’t provided soon”; and that “presumably [Ms Annovazzi] would want to remain as a driver”.[83]
[83] Exhibit A.
25 January 2018 – Dr Frukacz provides report
On 25 January 2018 Ms Annovazzi received the following letter from Dr Frukacz:[84]
This is to certify that Ms Annovazzi is prescribed dexamphetamine 5 mg for treatment of attention deficit hyperactivity disorder. She takes the medication on an as required basis only.
Her conditions of Asperger's Syndrome and attention deficit hyperactivity disorder pose no barrier to her being a train driver.
[84] Affidavit R Annovazzi 07.02.2019, annexure “F”
Ms Annovazzi forwarded Dr Frukacz’s letter to Dr Casolin immediately after she received it.[85]
[85] Exhibit A
At 1:54 pm on 25 January 2018 Dr Casolin sent the following email to Ms Browning, Ms Zidan, Mr Lesser, Ms Vlahos, and Ms Ball:[86]
Hi Janene just letting you know that I have received the letter from Ms Annovazzi’s psychiatrist confirming the prescription for dexamphetamine but there is still a question over her fitness to work as a train driver with her conditions which were not declared to, or assessed by, Sonic.
[86] Affidavit of A Casolin, [20]; annexure AC-9
Dr Casolin gave the following evidence in relation to the opinion contained in Dr Frukacz’s letter:[87]
While Dr Frukacz indicated that, in his opinion, the Applicant’s conditions posed no barrier to her being a train driver, I formed the view that this was not a decision that Sydney Trains could make without an assessment of her abilities conducted by Sonic Health, in order to discharge Sydney Trains’ obligations under the National Standard. The role of Trainee Train Driver is a Category 1 Rail Safety level and therefore any potential medical issues or use of prescription medication must be fully investigated in accordance with the National Standard before employees are permitted to perform this role, or any similar role with this safety grade. Adult attention deficit hyperactivity disorder is specifically referred to as a condition to be assessed and managed in accordance with section 18.5.1 of the National Standard.
[87] Affidavit of A Casolin, [19]
I accept Dr Casolin held these views after he had read Dr Frukacz’s letter.
On or after 15 January 2018 –approval sought from Ms Samassa to terminate Ms Annovazzi’s employment
In the meantime, on 15 January 2018 Ms Tracy Samassa commenced employment with Sydney Trains as “Director, People and Change (Operations)”.[88] Ms Samassa’s responsibilities in that position included managing “all aspects related to People and Change within the Train Crewing and Support Directive”.[89]
[88] Affidavit T Samassa 04.09.2020, [2]
[89] Affidavit T Samassa 04.09.2020, [3]
According to Ms Samassa, shortly after she commenced her employment with Sydney Trains, Ms Browning spoke to her “about a Trainee Train Driver who was still within probation, and it had been discovered that she had been dishonest in her pre-employment medical information disclosure”.[90] Ms Samassa’s evidence continues as follows:[91]
Ms Browning informed me that when the issue was discovered, and she was sent for a fit or duty (FFD) assessment, Transport Shared Services stated that the matter should be dealt with as a failure to declare during probation. Ms Browning agreed.
Ms Browning sought my approval for termination. The reason that my approval was sought was because I had the appropriate delegation to make that decision. In making my decision, I relied upon the information that was provided to me by Ms Browning. I recall that Ms Browning provided me with the Application, Pre-Employment Health Assessment and a Briefing Note by Daniel Bellia dated 9 November 2017.
[90] Affidavit T Samassa 04.09.2020, [11]
[91] Affidavit T Samassa 04.09.2020, [12], [13]
Ms Samassa says that, after she had decided to approve the termination of Ms Annovazzi’s employment, she drafted the following letter dated 30 January 2018 (Termination Letter):[92]
I write in reference to your declaration of pre-existing undiagnosed medical conditions and use of prescription medication. I note you informed the business of this after you had commenced employment with Sydney Trains and you have since been removed from the Driver Training program.
I note that you failed to disclose this information prior to being employed and provided incorrect information both on your employment application form and during your medical assessments. As a result of this, I have determined that your employment on probation as a Trainee Train Driver will be terminated.
In accordance with this decision, your last day of employment will be 2 February 2018. You will be provided one (1) week pay in lieu of notice. You will be paid any statutory entitlements that are outstanding. These will be paid into your nominated back account.
You are required to return all Sydney Trains’ property in your possession.
Finally, pursuant to clause 18.3 of the Enterprise Agreement, you have 14 days to seek a review of the decision. You can seek a review by writing to me and I will forward to the appropriate delegate.
[92] Affidavit T Samassa 04.09.2020, [13]; exhibit TS-5

Ms Samassa says she “did not take the termination decision lightly”. Ms Samassa further says:[93]
The reason I did not recommend that the Applicant be sent off of a FFD was because honesty is so important for all roles, but particularly in safety critical roles. A Train Driver is a safety critical role. A Train Driver is responsible for thousands of lives. Sydney Trains has rigorous medical processes to ensure employees are fit for the role. Sydney Trains expects honesty and full disclosure so appropriate medical examinations are undertaken.
The reason that I decided to terminate the Applicant's employment was because of her dishonesty.
[93] Affidavit T Samassa 04.09.2020, [18], [19]
In this evidence Ms Samassa appears to intend to convey that she considered whether she should recommend that Ms Annovazzi undergo “a FFD”, that is, a fitness for duty (FFD) assessment; and that, having considered that question, Ms Samassa decided not to recommend that Ms Annovazzi be sent off to a FFD, but to terminate Ms Annovazzi’s employment. If that is what Ms Samassa intended to convey by her evidence, I would not accept it.
Ms Samassa does not say in her affidavit that Ms Browning requested her to determine whether Ms Annovazzi’s employment should be terminated, instead Ms Samassa says that “Ms Browning sought my approval for termination”.[94] That implies that some other person, or persons within Sydney Trains, had made the decision to terminate Ms Annovazzi’s employment rather than send her for a FFD assessment, and that Ms Samassa was requested to approve that decision. That this is what occurred is made apparent from the following evidence Ms Samassa gave in answer to questions I asked:[95]
[94] Affidavit T Samassa 04.09.2020, [13]
[95] T247.1-T247.45. See also T256.15-T259.15
Well, in the case of the applicant, you didn’t consider, did you, whether the applicant should be assessed again, did you?‑‑‑No.
You didn’t make – who made that decision?‑‑‑So the – by the time the decision came to me, it was – it was decided that it was a – it was a conduct issue. And the decision with me was whether the conduct issue of not disclosing correct information on the forms was something that we would terminate someone for.
Yes. I’m just asking, in your affidavit ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you say that Transport Shared Services stated the matter should be dealt with as a failure to declare during probation?‑‑‑Yes. That’s correct.
So they made that decision; is that right? Not you?‑‑‑They made the decision. Correct.
And who’s Transport Shared Services?‑‑‑That would be – they – they managed – basically, the Sonic and that whole relationship around medical – the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport – so the – our worker’s compensation, for instance, is under that shared services. A lot of our functions with them – Sydney Trains – come under Transport Shared Services.
All right. So I just want to be clear, the decision that this applicant, Ms Annovazzi, would not be assessed for fitness, that was done by them, not by you . . . what you were asked to approve is ..... what you say in your affidavit was with a non-disclosure was dishonest or not. Is that your role?‑‑‑Yes. Correct. Was the non-disclosure – so when it came to me, they had said it was a conduct issue because she hadn’t disclosed it on the medical form and they were the ones – Transport Shared Services are the ones who deal with Sonic.
Yes?‑‑‑And, so, they’re, kind of, the overarching – the – you could say. And then the decision was this applicant – or now employee – had not been honest on the medical form.
All right. And had they not decided to refer it to you, is it your understanding – and, of course, then I can object to it ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ but she could have just been referred to for assessment, for example?‑‑‑Yes.
Yes. But that wasn’t done in this particular case because somebody made a decision that that ought not to be done?‑‑‑Correct.
And do you know who made that decision?‑‑‑No.
Ms Samassa exhibits to her affidavit the Medical Questionnaire; but, Ms Samassa does not say in her affidavit that she was provided with a copy of the Medical Questionnaire. In evidence she gave under cross-examination, however, Ms Samassa says that she had been provided with the Medical Questionnaire.[96] Ms Samassa was also taken to the September 2015 version of the “Code of Conduct” Sydney Trains had adopted (Code of Conduct), and in particular to the following passage that appears at page 18:[97]
Confidential information in any form must not be disclosed to any party without official approval, or as otherwise permitted by legislation or court order.
[96] T161.20; T163.30
[97] T161.5
Ms Samassa said she understood the information contained in the Medical Questionnaire was confidential medical information, but she did not believe the information “was not allowed to be provided to” her.[98] Ms Samassa was asked about whether she believed Ms Annovazzi considering the Medical Questionnaire was for the purpose of determining whether to terminate Ms Annovazzi’s employment was a “lawful purpose”.[99] The quoted words are contained in the following passage from the Code of Conduct:[100]
Other than the above, your personal information will not be disclosed for any other purposes except where:
. . . .
There is another lawful purpose.
[98] T163.35
[99] T163.45
[100] T165.5
Ms Samassa was also cross-examined about what she considered “dishonesty” to mean, and the basis on which she concluded that Ms Annovazzi had been dishonest. Ms Samassa gave the following evidence:[101]
Honesty or dishonesty pertains to state of mind. How can you determine that from a form?‑‑‑I don’t understand the question.
You could determine if the information given was accurate or inaccurate, given a basis for comparison. How do you determine whether it was honest or dishonest?‑‑‑Well, I understand honest to be the person is being accurate with what they know; and dishonest, they’re not being accurate.
So how did you know what I did or did not know?‑‑‑Well, the questions were pretty straightforward. And shortly, a couple of months after having undergone the medical ‑ ‑ ‑
You already said you underwent a different medical?‑‑‑No. You having undergone the medical. So a couple of months after you had undergone the medical – whether it was three or six months – you disclosed information that you had not disclosed on your medical. So to me, that is inaccurate so that was dishonest.
[101] T164.15
Ms Samassa said that, in determining whether Ms Annovazzi was dishonest, Ms Samassa relied on the Medical Questionnaire, the Examination Record, and the Briefing Note.[102]
[102] T165.25
Ms Samassa was also cross-examined about whether she had made any attempt to verify the information contained in the Briefing Note. Ms Samassa said she had a conversation with Ms Browning “around the whole case”.[103] Ms Samassa’s recollection of her conversation with Ms Browning was as follows:[104]
So okay. So the whole case involved exactly what had happened. So that you had disclosed that you had ADHD the condition, and that you also suffered from Asperger’s syndrome, and that you had not declared these in your medical examination or on your employment application form. I was then given the employment application form and we went through that, and we went through the medical, and there was no indication on either of those that you had disclosed that you had any – you were being treated for any conditions such as ADHD, or Asperger’s, or that you were on any medication.
[103] T167.45
[104] T167.45-T168.5
Ms Samassa was cross-examined about the basis on which she concluded Ms Annovazzi had dishonestly failed to disclose information. Ms Samassa’s evidence is as follows (errors in original):[105]
[105] T168.45-T169.35; T170.25
HIS HONOUR: All right. Now, so the question is: you say you relied on this briefing note. So you have just indicated which of these questions ought to have been answered differently. So the question, I think, Ms Annovazzi wants to ask you is: what is it in the briefing note that led you to conclude that disclosure ought to have been [made], and the fact that no disclosure was made, it had been dishonestly not made, I think, is the question?‑‑‑So that trainee driver, Annovazzi, stated she did not declare either condition – ADHD or Asperger’s syndrome – to Sonic Health, and these were not taken into account whilst the Trainee Annovazzi’s suitability to undertake category 1 as a train driver was being assessed.
MS ANNOVAZZI:   So assessing ‑ ‑ ‑
HIS HONOUR:   Just hold on.
MS ANNOVAZZI:   Sorry.
HIS HONOUR:   Is there anything in that briefing note, for example, I think you referred question 1: Are you currently being treated by a doctor for any illness or injury.
And I think you said that that ought not to have been given no?‑‑‑Yes. Correct.
Is there anything in the briefing note which indicates that Ms Annovazzi was being treated by a doctor?‑‑‑Well, yes. Because she ‑ ‑ ‑
Where is it?‑‑‑She was taken to be – admitted medications such as dextroamphetamine. I can’t even say it.
MS ANNOVAZZI:   Dexamphetamine?‑‑‑Thank you. That she said she has been recently prescribed. That means she is being treated by a doctor.
HIS HONOUR:   All right?‑‑‑And if she had medication for ADHD and for Asperger’s syndrome, it means she is being treated by a doctor. So to me, that indicates ‑ ‑ ‑
HIS HONOUR:   All right.
. . . .
THE WITNESS: . . . I have forgotten what the question was, apologies.
HIS HONOUR:   I think it’s just how you justified your conclusion that the omissions ought to have been made, and to the extent they weren’t made, they were dishonestly not made?‑‑‑Okay. So (1) was taking medication, (2) was having Asperger’s and ADHD, and that you hadn’t disclosed this on your medical form. So I know that the medical forms are extensive with their questioning, and that they would have – if someone had ADHD or Asperger’s, they would have had to have disclosed it. And it wasn’t disclosed because you said it wasn’t disclosed, and then, when we got the reports, they weren’t disclosed.
Ms Samassa accepted in cross-examination that, by the time Ms Browning sought her approval to terminate Ms Annovazzi’s employment, “a determination had already been made as to whether or not dishonesty had happened”.[106]
[106] T250.10
On the basis of this evidence I make the following findings:
(a)Shortly after 15 January 2018 Ms Browning informed Ms Samassa that a decision had been made by a person or persons within TSS that Ms Annovazzi would not undergo a FFD assessment; but that, instead, Ms Annovazzi’s employment was to be terminated on the basis that she had dishonestly failed to disclose her true medical condition (Purported Decision to Terminate). Ms Browning sought Ms Samassa’s approval of the Purported Decision to Terminate, and to give effect to that decision, if she were to approve it.
(b)There is no evidence that identifies the person or persons who made the Purported Decision to Terminate; or the day on which the Purported Decision to Terminate was made; or the reason or reasons for which the person or person made the Purported Decision to Terminate; or the matters on which the person or persons made the Purported Decision to Terminate; or the person or persons who communicated to Ms Browning the Purported Decision to Communicate; or when and by what means the Purported Decision to Terminate was communicated to Ms Browning.
(c)In support of her request that Ms Samassa approve the Purported Decision to Terminate Ms Browning provided to Ms Samassa the Medical Questionnaire, the Examination Report, and the Briefing Note.
(d)Ms Samassa read the three documents Ms Browning had provided to her, and accepted as true the information Ms Browning communicated to her. In particular Ms Samassa accepted the assertion that Ms Annovazzi had dishonestly withheld medical information. On that basis, Ms Samassa approved the Purported Decision to Terminate, and gave effect to that decision by drafting and signing the Termination Letter.
The only evidence that the Purported Decision to Terminate had been made is:
(a)the statement Ms Browning made in her email of 9 January 2018 that she had agreed with TSS’s view that “this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period” (Browning Statement);
(b)Ms Samassa’s evidence that Ms Browning made the following three representations to her (Browning Representations):
(i)it had been discovered that a trainee train driver who was still within probation “had been dishonest in her pre-employment medical information disclosure”;
(ii)when the issue was discovered, the trainee train driver “was sent for a fit for duty (FFD) assessment”; and
(iii)TSS “stated that the matter should be dealt with as a failure to declare during probation”.
To the extent the evidence of the Browning Statement and Ms Samassa’s evidence of the Browning Representations has been read for the purpose of proving the existence of the facts Ms Browning intended to assert by making such statement and representations, they fall within the “hearsay rule” provided for by s 59(1) of the Evidence Act 1995 (Cth) (Evidence Act). The evidence of the Browning statement and Ms Samassa’s evidence are therefore inadmissible to prove the existence of any fact it may reasonably be supposed Ms Browning intended to assert by making the Browning Statement and the Browning Representations, unless an exception to the hearsay rule applies.[107] The evidence of the Browning Statement falls within the exception provided for by s 69 of the Evidence Act. As for Ms Samassa’s evidence of the Browning Representations, Ms Samassa gave that evidence for the purpose of proving: that she had been asked to approve a decision to terminate Ms Annovazzi’s employment, the circumstances in which Ms Samassa was asked to approve that decision, and the information on which Ms Samassa relied in deciding to approve that decision. These are non-hearsay purposes and, for that reason, Ms Samassa’s evidence of the Browning Representations is admissible under s 60(1) of the Evidence Act as evidence of the existence of the facts it is reasonable to suppose Ms Browning intended to assert by making those representations.
[107] At the hearing I indicated to the parties that, given Ms Annovazzi is not a lawyer, I would read the affidavits on which Sydney Trains intended to rely on the basis that I would identify but ignore clearly inadmissible evidence: see at T153.5 (where, in the course of informing Ms Annovazzi of the existence of rules of evidence, I said: “But, for example, if in there there’s clear hearsay, I’m going to say so in my judgment and not refer to it”).
I am prepared to find, on the basis of the evidence of the Browning Statement and Ms Samassa’s evidence of the Browning Representations, that a decision had purportedly been made by a person or persons within TSS that, instead of proceeding with Ms Annovazzi undergoing a FFD assessment, her employment should be terminated purportedly on the ground of a dishonest non-disclosure of information.
(a)I am not prepared to find as a fact, however, the fact the existence of which Ms Browning intended to assert by the first of the Browning Representations, namely, that Ms Annovazzi was dishonest in her pre-employment medical information disclosure. First, Sydney Trains does not plead in its defence that Ms Annovazzi had been dishonest and, therefore, it is not a matter that is open to Sydney Trains to prove. Second, even if it were open to Sydney Trains to prove dishonesty, Ms Samassa’s evidence of the first of the Browning Representations is incapable of supporting the existence of the fact asserted by the representation because it is a conclusion that does not identify the facts and matters on which it is based. Satisfaction that a serious allegation, such as dishonesty, has been proved “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[108]
(b)I am also not prepared to find that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion they may have formed that Ms Annovazzi had been dishonest was true or not. Sydney Trains:
(i)has not identified the person or persons who made the Purported Decision to Terminate, and has therefore not called such person or persons to give evidence of their actual beliefs about Ms Annovazzi’s perceived failure to disclose, and the matters on which such person or persons formed any such belief;
(ii)has not produced evidence to show that the person or persons who made the Purported Decision to Terminate was or were unaware that Ms Annovazzi asserted in her text messages to Ms Bellia on 2 November 2017 that she had disclosed to the examining doctor that she has ADHD and had been prescribed medication;
(iii)has not identified any evidence that shows that the person or persons who made the Purported Decision to Terminate or made any inquiries of Ms Annovazzi about the circumstances in which she applied for the position of trainee driver which it is reasonable to expect such person or persons would have made, had the person or persons been genuinely interested in determining whether Ms Annovazzi had dishonestly failed to disclose information;
(iv)has not stated whether Sydney Trains had presented to the Court all documents in its possession that are relevant to identifying the person or persons who made the Purported Decision to Terminate, and the reason or reasons for which they made that decision; and
(v)has not adduced evidence that Sydney Trains is unaware of the identity of the person or persons who made the Purported Decision to Terminate; or, if they are aware of their identity, whether that person or persons was or were available to Sydney Trains to make an affidavit or affidavits relating to the making of the Purported Decision to Terminate and the reasons for that decision; or if the person or persons who made the Purported Decision to Terminate were not available to Sydney Trains to give an affidavit or affidavits, the reason why such person or persons was or were unavailable to make an affidavit or otherwise appear at the hearing to give evidence.
[108] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at page 362
It is convenient at this point that I refer to the following statement Dr Casolin made in his affidavit (emphasis added):[109]
As to paragraph 1 of Part C of the Applicant’s Statement, the Applicant says she considers herself to “be on the extremely high functioning end of the autistic spectrum and ... could fathom no reason why I would be incapable of working as a train driver”. In response I say that this is a safety critical matter to be assessed by medical experts with full knowledge of the Applicant’s diagnoses and prescriptions and the medical requirements under the National Standard. In the circumstances, it was dishonest of the Applicant not to disclose her disabilities during the recruitment process.
A Train Driver is a very responsible position, with responsibility for lives of over 1,000 passengers. Truthfulness needed to be considered separately from medical fitness.
As to paragraph 5 of page 4 of the Applicant's Submissions, the Applicant states that there was no evidence that she was incapable of performing the role of a train driver and no medical assessments had been made to that effect at that point. I agree. No assessments had been made, but had she answered “yes” those assessments would have been made prior to her commencement of employment. Full disclosure was expected by the Applicant so that a proper assessment could be carried and her failure to do so was dishonest and may have jeopardised safety standards of the Respondent.
[109] Affidavit of A Casolin, [25]-[27]

In its counsel’s opening submissions, Sydney Trains submitted that the relevant comparator would be a person who does not have Ms Annovazzi’s disabilities of ADHD and Asperger’s Syndrome who had not answered questions correctly in the pre-employment medical process.[139] Ms Annovazzi, on the other hand, submits that “trainee driver [AB]” referred to in the Briefing Note is the relevant comparator.[140]
[139] T45.30
[140] Applicant’s written submissions filed 26 April 2021, page 2
It is the case that the comparator must be a person who does not have Ms Annovazzi’s disabilities of ADHD and Asperger’s Syndrome. I do not accept, however, that the comparator is to be assumed to have given any dishonest answer to a medical questionnaire, or has otherwise acted dishonestly in connection with the disclosure of the comparator’s medical condition. Sydney Trains has not alleged dishonesty in its defence, and it has otherwise not identified evidence that is capable of supporting a finding of dishonesty. Ms Annovazzi, on the other hand, has given evidence that she informed Dr Kumar, the medical practitioner that had examined Ms Annovazzi, that she had been diagnosed with ADHD and Asperger’s Syndrome, and had been prescribed medication; and, in her text message exchange with Mr Bellia on 2 November 2017, Ms Annovazzi said that she had “told the doc in the medical” that she had ADHD. Sydney Trains has not called Dr Kumar to give evidence; and Sydney Trains has given no evidence to suggest they attempted to obtain any evidence from Dr Kumar after Ms Annovazzi asserted to Mr Bellia on 2 November 2017 that she had disclosed her ADHD to Dr Kumar. As for Ms Annovazzi’s submission that “trainee driver [AB]” is the relevant comparator, there is insufficient evidence about the circumstances of “trainee driver [AB]” to determine whether “trainee driver [AB]” is the relevant comparator.
Given the findings I have made, the question whether Ms Annovazzi had been treated less favourably than a comparator is to be determined by reference to the following circumstances (Reference Circumstances):
(a)The (hypothetical) comparator (Comparator) did not disclose in a medical questionnaire she had completed on 22 May 2017 two medical conditions, the assessment of which was relevant to determining whether the Comparator had the capacity to perform the role of a trainee train driver.
(b)In late October and early November 2017, after she had commenced employment with Sydney Trains, the Comparator disclosed to Sydney Trains she had the two medical conditions.
(c)On 2 November 2017 the Comparator asserted to Sydney Trains that the Comparator had disclosed to the examining doctor one of the two medical conditions, and that she had been prescribed medication for that condition.
(d)By 9 November 2017 the chief medical officer of Sydney Trains formed the view that the Comparator had not disclosed her two medical conditions before she had commenced her employment and, for that reason, no assessment had been made about whether, given the medical conditions, the Comparator had the capacity to perform the role of trainee driver. The chief medical officer’s view was based on a response to an inquiry he had made of Sonic HealthPlus, the medical practice to which the examining doctor was attached, which stated that the records the medical practice kept did not record the Comparator had disclosed her two medical conditions.
(e)The chief medical officer then authorised the completion of a document (being the Briefing Note) that requested that the Comparator be referred for a psychiatric, and if required neuropsychological assessment (that is, a FFD assessment), to determine whether the Comparator has the capacity to perform the role of a trainee train driver, given the Comparator had the two medical conditions the chief medical officer believed the Comparator had not disclosed and which, therefore, had not been assessed.
(f)Sydney Trains did not make any enquiries of the Comparator about the assertion the Comparator had made that she had disclosed her medical condition to the examining doctor; and Sydney Trains did not make, or cause to make, any inquiries of the examining doctor about whether the Comparator had disclosed her medical conditions during the medical examination, as the Comparator had claimed she did.
What would Sydney Trains have done in relation to the Comparator?
Given the Reference Circumstances, I find that Sydney Trains would not have decided that the Comparator would not undergo the FFD assessment the chief medical officer had authorised the Comparator undertake; but that, instead, the Comparator would not be dismissed from her employment on the basis that she had dishonestly failed to disclose her true medical condition. The reason is that, without at the very least undertaking enquiries of the Comparator, Sydney Trains would have had no reasonable or rational basis for concluding the Comparator had been dishonest and, for that reason, that the Comparator should be dismissed from her employment, rather than having the Comparator assessed, as requested by the Briefing Note. In short, Sydney Trains would have permitted the Comparator to be assessed as requested in the Briefing Note. It follows, therefore, that by dismissing Ms Annovazzi from her employment purportedly on the ground of dishonesty and failure to disclose, Sydney Trains treated Ms Annovazzi less favourably than it would have treated the Comparator.
Did Sydney Trains, because of her disabilities, treat Ms Annovazzi less favourably than it would have treated the Comparator?
In its written submissions, Sydney Trains submits that Ms Annovazzi does not, in her written submissions, address the issue of causation.[141] In support of that submission Sydney Trains quotes the following passage from Ms Annovazzi’s written submissions filed on 10 March 2022:
the real reason she was terminated from her employment was the inadequacy and incompetence of Sydney Trains policies, procedures and practices made the veneer of an integrity based termination a more appealing solution to the problem of an off roster trainee, than following a proper process. In effect, they got rid of the problem by getting rid of the person.
[141] Respondent’s Outline of Closing Submission, [69]
Sydney Trains then submits as follows:[142]
Ms Annovazzi does not submit in express and direct terms that the real reason for her dismissal was her actual or alleged imputed disabilities. It seems that Ms Annovazzi’s case centres on her perception that Sydney Trains decided to terminate her employment for nondisclosure because she was perceived to be a ‘problem’. Seemingly, Ms Annovazzi seeks to infer that, because Sydney Trains did not follow a fair process and/or took unreasonable or unlawful steps in deciding to terminate her employment, it must follow that Sydney Trains has taken the action because of her disability. Even assuming in Ms Annovazzi’s favour that it can be established that Sydney Trains treated Ms Annovazzi unfairly or unreasonably, this process of reasoning is neither logical nor determinative.
[142] Respondent’s Outline of Closing Submission, [70]
It is the case that in her written submissions Ms Annovazzi does not address the issue of causation directly; and it is also the case that it is not open to infer that Sydney Trains treated Ms Annovazzi differently on the basis of what Ms Annovazzi said are the unfair processes Sydney Trains adopted in relation to her dismissal. Ms Annovazzi, however, in her amended statement of claim, has clearly alleged causation: Ms Annovazzi alleges Sydney Trains discriminated against her on the ground of the Disability or Imputed Disability.
Sydney Trains’ ultimate submission in relation to causation is contained in the following paragraph from its written submissions (emphasis added):[143]
[I]t is clear that Sydney Trains would not have treated Ms Annovazzi any differently to a person who did not have her actual or imputed disabilities in the same circumstances; that is, a person without Ms Annovazzi’s disabilities who has applied for or accepted for the role of a Trainee Train Driver on probation who dishonestly answered the relevant questions in the medical questionnaire and who has thereby not had a proper health assessment conducted by a health professional with full knowledge of their medical history and the requisite expertise in assessing those medical conditions. Relevantly, Ms Annovazzi’s dishonesty during the pre-employment process on a matter of material significance to her performing her role safely was the actual reason for Sydney Trains deciding to dismiss her during her probation period.
[143] Respondent’s Outline of Closing Submission, [77]
As I have already found it is not open to Sydney Trains to submit that Ms Annovazzi was dishonest: Sydney Trains does not plead dishonesty; and there is no evidence that is capable of supporting an allegation of dishonesty.
Perhaps Sydney Trains intends to submit that it terminated Ms Annovazzi’s employment because Sydney Trains, reasonably or unreasonably, rationally or irrationally, believed that Ms Annovazzi had been dishonest. That submission is available to be made about Ms Samassa’s belief at the time she approved the Purported Decision to terminate; the submission is not available in relation to the unidentified person or persons who made the Purported Decision to Terminate. For reasons I have already given, I am not satisfied that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion such person or persons may have formed that Ms Annovazzi had been dishonest was true or not. I therefore do not accept that Sydney Trains dismissed Ms Annovazzi from her employment because it believed that Ms Annovazzi acted dishonestly.
The question that arises is whether, given the findings I have made, it is reasonably open to find that the person or persons within TSS who made the Purported Decision to Terminate did so because Ms Annovazzi has ADHD or Asperger’s Syndrome; or such person or persons did so for reasons that included as a substantial reason Ms Annovazzi’s having ADHD or Asperger’s Syndrome. Stated another way, the question is whether the circumstances as I have found them are “such as to fairly raise in an unsuspicious mind the inference of . . . discrimination as the probable explanation for the different treatment”[144] I have found Sydney Trains accorded to Ms Annovazzi.
[144] KLK Investments Pty Ltd v Riley (1993) 31 ALD 747, at page 750 (Supreme Court of Western Australia)
I am satisfied that it is reasonably open to make such finding, and draw such inference. I have concluded I am not satisfied that the person or persons who made the Purported Decision to Terminate believed Ms Annovazzi had been dishonest, or cared whether any belief or suspicion such person or persons may have formed that Ms Annovazzi had been dishonest was true or not. In those circumstances, there is no reason or reasons that is or are capable of rationally explaining why the person or persons within TSS made the Purported Decision to Terminate, other than that person’s or those persons’ having become aware that Ms Annovazzi has ADHD and Asperger’s Syndrome.
Further, I am satisfied that the person or persons within TSS who made the Purported Decision to Terminate did so for the reason, or for reasons that included as a substantial reason, Ms Annovazzi’s having ADHD and Asperger’s Syndrome; and I am otherwise satisfied that the inference of discrimination is the probable explanation for what I have found was Sydney Trains’ different treatment of Ms Annovazzi. My confidence in making these findings is strengthened by Sydney Trains not having identified the person or persons within TSS who had made the Purported Decision to Terminate, and by Sydney Trains’ not adducing evidence to explain why Sydney Trains has not identified those persons, and not adducing evidence about whether those persons were available for Sydney Trains to call to give evidence, and if not why those persons were not available to `give evidence.[145]
[145] See Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at [63]: “The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. . . . The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.”
Conclusion on claim based on s 15(2)(c) of the DD Act
Sydney Trains dismissed Ms Annovazzi from her employment because she has disabilities, namely, ADHD and Asperger’s Syndrome; and in doing so, Sydney Trains treated Ms Annovazzi less favourably than Sydney Trains would have treated a person without ADHD and Asperger’s Syndrome in circumstances that are not materially different. For these reasons, Sydney Trains engaged in unlawful discrimination, contrary to s 15(2)(c) of the DD Act.
Claims based on s 15(2)(d) of the DD Act – other detriment
Ms Annovazzi identifies four discriminatory acts or classes of discriminatory acts by Sydney Trains which she claims resulted in other detriment to herself: Sydney Trains denied Ms Annovazzi an appropriate support person at the Termination Meeting; Sydney Trains removed Ms Annovazzi from driver training; Sydney Trains denied Ms Annovazzi access to advancement, resulting in the loss of income on the rotating roster; and Sydney Trains subjected Ms Annovazzi to harassment. Whether, by taking these actions, Sydney Trains treated Ms Annovazzi less favourably than a person who did not have ADHD and Asperger’s Syndrome is to be determined by reference to the Comparator, being the comparator I have already identified.
Taking Ms Annovazzi out of trainee driver course and access to advancement
I am not satisfied that, by deciding on 6 November 2019 to take Ms Annovazzi out of the trainee drivers course, Sydney Trains treated Ms Annovazzi less favourably than it would have treated another person who did not have ADHD and Asperger’s Syndrome, but who did have a medical condition that needed to be assessed for the purpose of determining whether she had the capacity to perform the functions of a trainee train driver (Relevant Medical Condition). If the Comparator had the Relevant Medical Conditions Sydney Trains would have taken the Comparator out of the trainee driver course for the purpose of assessing whether the Relevant Medical Conditions would prevent the Comparator from having the capacity to perform the functions of a trainee train driver. That would have been so even if the Comparator had disclosed to the examining doctor that she had the Relevant Medical Conditions, but the examining doctor did not undertake an assessment that incorporated the Relevant Medical Conditions.
Although the decision of Sydney Trains to take Ms Annovazzi out of the trainee driver course did not amount to less favourable treatment of Ms Annovazzi, that state of affairs would have continued only for so long as Sydney Trains ought reasonably to have taken to assess the Comparator in relation to the Relevant Medical Condition. It is open to find that Sydney Trains ought to have assessed the Comparator by no later than 9 January 2018 when Ms Zidan sent an email to Dr Casolin and to Ms Browning asking for an update in relation to the FFD assessment of Ms Annovazzi. I therefore find that by no later than 9 January 2018 Sydney Trains would have completed its assessment for the Comparator in relation to the Relevant Medical Conditions. Thus, by keeping Ms Annovazzi off the trainee driver course after 9 January 2018, Sydney Trains treated Ms Annovazzi less favourably than Sydney Trains would have treated the Comparator. Further, for the reasons I have found Sydney Trains, when dismissing Ms Annovazzi from her employment, treated Ms Annovazzi less favourably than the Comparator because Ms Annovazzi has ADHD and Asperger’s Syndrome. I therefore find that Sydney Trains kept Ms Annovazzi out of the trainee driver course after 9 January 2018 because she has ADHD and Asperger’s Syndrome.
Denying appropriate support person
I am not satisfied that Sydney Trains would have offered to provide the Comparator a support person who was different from Mr Eter. I am therefore not satisfied that Sydney Trains treated Ms Annovazzi less favourably than the Comparator by arranging for Mr Eter to act as Ms Annovazzi’s support person at the Termination Meeting.
Harassment
The acts Ms Annovazzi alleges constituted harassment are those she identified in paragraph 16 of the amended statement of claim in support of her claims based on s 35(2) of the DD Act. The acts consisted of: Sydney Trains requesting medical information from Ms Annovazzi; Ms Vlahos requesting Ms Annovazzi return Sydney Trains materials and complete paper work before Ms Annovazzi ceased her employment; Sydney Trains refusing to delay meeting to permit Ms Annovazzi to have a support person; threatening to call the police and forcibly remove Ms Annovazzi from Sydney Trains’ premises before Ms Annovazzi’s employment had ended; and Ms Vlahos threatening to make Ms Annovazzi’s life difficult.
It is apparent that Ms Annovazzi uses the word “harassment” in the sense that the word is used in s 35(2) of the DD Act. It has been held that “harassment” in s 35(2) means “something that is repetitious or occurs on more than one occasion”.[146] I am not satisfied that any of the acts Ms Annovazzi relies constituted harassment.
CLAIM BASED ON S 30(2) OF THE DD ACT
[146] Penhall-Jones v State of NSW [2008] FMCA 832, at [75] (Raphael FM)
Jurisdiction to determine claim under s 30(2)?
I do not accept Sydney Trains’ submission that the claims Ms Annovazzi makes on the basis of s 30(2) of the DD Act does not arise out of the same, or substantially the same acts, omissions, or practices that were the subject of the Complaint. The Complaint refers to Mr Chami’s request for Ms Annovazzi’s medical information, and also to Ms Vlahos having approached Ms Annovazzi on 23 January 2018 in which Ms Annovazzi says Ms Vlahos “made various comments regarding the urgency” attending Sydney Trains’ requiring a medical note from Ms Annovazzi’s treating specialist.
The Court, therefore, has jurisdiction to hear and determine the claim Ms Annovazzi makes on the basis of s 30(2) of the DD Act.
Section 30 of the DD Act
Section 30 of the DD Act provides as follows:
(1) This section applies in relation to a person (the first person) if, under Division 1 or this Division, it would be unlawful for the first person, in doing a particular act, to discriminate against another person on the ground of a disability of the other person
(2) It is unlawful for the first person to request or require the other person to provide information (whether by completing a form or otherwise) if:
(a) the first person requests or requires the information in connection with, or for the purposes of, doing the act referred to in subsection (1); and
(b) either or both of the following applies:
(i) persons who do not have the disability would not be requested or required to provide the information in circumstances that are not materially different;
(ii) the information relates to the disability.
(3) Subsection (2) does not apply if:
(a) evidence is produced to the effect that none of the purposes for which the first person requested or required the information was the purpose of unlawfully discriminating against the other person on the ground of the disability; and
(b) the evidence is not rebutted.
(4) This section has effect subject to subsection 54A(5) (evidence that an animal is an assistance animal).

Under s 30(1) of the DD Act, s 30 applies if, under Division 1 or Division 2 of Part 2, it would be unlawful for a person (first person), in doing a particular act, to discriminate against another person on the ground of disability. That would include an employer, contrary to s 15(2)(c) of the DD Act, discriminating against an employee on the ground of the employee’s disability, by dismissing the employee. In those circumstances, s 30(2) of the DD Act would render unlawful the employer’s requesting or requiring an employee to provide information if:
(a)the employer requests or requires information in connection with, or for the purposes of, discriminating against an employee on the ground of the employee’s disability, by dismissing the employee; and
(b)either or both of the following applies:
(i) persons who do not have the disability would not be requested or required to provide the information in circumstances that are not materially different;
(ii) the information relates to the disability.
Ms Annovazzi’s case
Ms Annovazzi claims that Sydney Trains contravened s 30(2) by Mr Chami, on 20 December 2017, requesting Ms Annovazzi provide a medical note or briefing from her treating physician, and requesting Ms Annovazzi provide information that persons who did not have her disabilities would not have been requested to provide in circumstances that are not materially different.[147] Ms Annovazzi does not expressly refer to the requests Ms Vlahos made on 23 January 2018, but it is reasonably clear that Ms Annovazzi does intend to refer to that request as constituting part of her claim based on s 30 of the DD Act. In paragraph (d) of the particulars of paragraph 16 of the amended statement of claim, Ms Annovazzi refers to Sydney Trains continuing to demand the information Mr Chami had requested from 20 December 2017.
[147] Amended Statement of Claim, [15]
Sydney Trains’ submissions
Sydney Trains submits that Ms Vlahos requested Ms Annovazzi provide a medical note or briefing note from her treating physician regarding the use of Dexamphetamine and the conditions of ADHD and Asperger’s Syndrome “in accordance with Dr Casolin’s request”.[148] Sydney Trains further submits as follows:[149]
None of the evidence indicates that Sydney Trains’ request for Ms Annovazzi to provide a medical report from her treating medical practitioner, Dr Fruckacs, had anything other than a legitimate purpose of determining her fitness to perform duties safely and then the correctness of her disclosures during the pre-employment health assessment. There is no evidence to support Ms Annovazzi’s claim that the medical report was required because of her actual or imputed disabilities. Accordingly, Ms Annovazzi’s claim that Sydney Trains had discriminated against her because of her disabilities by requesting her to provide a medical report from her treating psychiatrist has not been made out.
[148] Respondent’s Outline of Closing Submission, [83]
[149] Respondent’s Outline of Closing Submission, [87]
Determination
Ms Annovazzi’s case, and Sydney Trains’ submissions, must be assessed by reference to the findings I have made, and the text of s 30(2) of the DD Act. I have found that Sydney Trains, contrary to s 15(2)(c) of the DD Act, discriminated against Ms Annovazzi on the ground of her disabilities, by dismissing her from her employment. The questions that arise, therefore, are whether Sydney Trains requested the medical information “in connection” with what I have found to be unlawful discrimination, namely, dismissing Ms Annovazzi from her employment; and, if so, whether the information Sydney Trains requested Ms Annovazzi provide related to her disabilities, namely, ADHD and Asperger’s Syndrome. Both questions are to be answered in the affirmative.
Mr Chami requested the information on 20 December 2017, almost three weeks after Mr Lesser sent the email to Ms Zidan stating that he would “like to discuss a couple of issues with this case before we can determine [the] course of action with regards to FFD request”. It is open to infer, and I find, that by or shortly after 1 December 2017 Mr Lesser, and perhaps other persons within TSS, was or were considering whether to dismiss Ms Annovazzi’s employment rather than having Ms Annovazzi be assessed for FFD. In those circumstances, Ms Chami requested Ms Annovazzi provide the medical report from her treating physician “in connection with” the decisions and events I have found formed part of Sydney Trains’ dismissal of Ms Annovazzi from her employment; and the information he requested related to Ms Annovazzi’s disabilities. The same finding may be made with greater confidence in relation to the request Ms Vlahos made of Ms Annovazzi on 23 January 2018 that she provide a medical report from her treating physician. The Purported Decision to terminate had already been made by 23 January 2018. Ms Vlahos requested the information on 23 January 2018 in connection with the decisions and events I have found formed part of Sydney Trains’ dismissal of Ms Annovazzi from her employment; and the information related to Ms Annovazzi’s disabilities.
It follows, therefore, that by Mr Chami on 20 December 2017 requesting Ms Annovazzi provide a medical note or briefing from her treating physician regarding her ADHD and Asperger’s Syndrome, and by Ms Vlahos on 23 January 2018 chasing up Ms Annovazzi to provide the medical note or briefing, Sydney Trains engaged in conduct that was contrary to s 30(2) of the DD Act.
CLAIM BASED ON S 35(2) OF THE DD ACT
I have already concluded I am not satisfied that the matters on which Ms Annovazzi relies as constituting harassment constitute harassment for the purposes of s 35(2) of the DD Act.
CONCLUSION AND FURTHER PROGRESS
The only relief I propose to grant at this stage is to grant declarations that:
(a)contrary to s 15(2)(c) of the DD Act Sydney Trains unlawfully discriminated against Ms Annovazzi on the ground of Ms Annovazzi’s disabilities by dismissing Ms Annovazzi from her employment with Sydney Trains;
(b)contrary to s 15(2)(d) of the DD Act Sydney Trains unlawfully discriminated against Ms Annovazzi on the ground of Ms Annovazzi’s disabilities by keeping Ms Annovazzi out of the trainee drivers course after 9 January 2018; and
(c)on 20 December 2017 and 23 January 2018 Sydney Trains acted contrary to s 30(2) of the DD Act by requesting Ms Annovazzi provide medical note or briefing from her treating physician regarding her disabilities.
Ms Annovazzi claims an order for reinstatement of her employment, compensation, and an apology. I propose to list the matter on a day three weeks after I publish these reasons for judgment for the purpose of making directions relevant to hearing submissions on the relief Ms Annovazzi claims.

I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 16 April 2024

File number(s):	SYG 3116 of 2018
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	23 June 2023
Catchwords:	HUMAN RIGHTS – Disability discrimination – whether in dismissing the applicant the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities – whether by taking other actions the respondent unlawfully discriminated against the applicant by subjecting the applicant to any other detriment – whether by requesting information in relation to the applicant’s disabilities the respondent did so in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities – whether the respondent harassed the applicant in relation to her disabilities – declarations made that the respondent unlawfully discriminated against the applicant by dismissing her from the respondent’s employment and by subjecting the applicant to other detriment – declaration made that respondent requested information from the applicant in relation to her disabilities in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities.
Legislation:	Australian Human Rights Commission Act1986 (Cth) s 46P Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 8(1), 10, 15, 21A(1), 30, 35 Evidence Act 1995 (Cth) ss 59(1), 60(1), 69 Rail Safety National Law2012 (NSW) ss 4(1), 8, 52, 114, 117 Transport Administration Act 1988 (NSW) ss 36, 36A(1) Rail Safety National Law Regulations 2012 (NSW) reg 27
Cases cited:	Briginshaw v Briginshaw [1938] HCA 34 Glasgow City Council v Zafar [1997] 1 WLR 1659 KLK Investments Pty Ltd v Riley (1993) 31 ALD 747 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Penhall-Jones v State of NSW [2008] FMCA 832 Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62 Victoria v McKenna [1999] VSC 310
Division:	General
Number of paragraphs:	161
Date of hearing:	17, 18, and 19 May 2021, 28 February 2022, and 1, 2, and 23 March 2022
Place:	Sydney
The Applicant:	Appeared in person
Counsel for the Respondent:	Mr M Seck
Solicitor for the Respondent:	McCullough Robertson Lawyers

Table of Corrections
16 April 2024	In paragraph 133, in the passage “but that, instead, the Comparator would be dismissed” the word “not” has been inserted between the words “would be”, so that the passage now reads “but that, instead, the Comparator would not be dismissed”.

SYG 3116 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	RENEE ANNOVAZZI Applicant
AND:	STATE OF NEW SOUTH WALES - SYDNEY TRAINS Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	23 JUNE 2023