Annovazzi v State of New South Wales- Sydney Trains (No 4)

[2025] FedCFamC2G 1568

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Annovazzi v State of New South Wales- Sydney Trains (No 4) [2025] FedCFamC2G 1568  

File number(s):

SYG 3116 of 2018

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

26 September 2025

Catchwords:

HUMAN RIGHTS  - disability discrimination – hearing of issues remitted by Full Federal Court – whether on the evidence that was admitted at the initial hearing and the new evidence that was admitted pursuant to leave to reopen that was granted after the matter was remitted the applicant has established on the balance of probabilities that the respondent dismissed the applicant from her employment because of her disability – applicant unable to discharge that burden – application dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth) s 15(2)(c)

Cases cited:

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

Annovazzi v State of New South Wales v Sydney Trains (No 2) [2025] FedCFamC2G 480

State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120

Division:

General

Number of paragraphs:

49

Date of hearing:

17, 18 September 2025  

Place:

Sydney

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr M Seck

Solicitor for the Respondent:

McCullough Robertson Lawyers

ORDERS

SYG 3116 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RENEE ANNOVAZZI

Applicant

AND:

STATE OF NEW SOUTH WALES

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	26 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The parties have liberty to apply within 35 days after the date of these orders for any order as to costs.

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 24.04(g)  Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. In these reasons for judgment I consider the matters the Full Federal Court (FFC) remitted to this Court pursuant to the orders it made on 12 September 2024.[1]

   [1] State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120.

2. These reasons for judgment assume familiarity with those I published on 23 June 2023 (June Reasons),[2] the FFC’s reasons for judgment published on 12 September 2024, and the reasons for judgment I published on 4 April 2025 (April Reasons).[3]

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

   [3] Annovazzi v State of New South Wales v Sydney Trains (No 2) [2025] FedCFamC2G 480.

   THE COURSE OF THE HEARING

3. On the first day of the hearing on remitter, the respondent (Sydney Trains), at the request of Ms Annovazzi, made available for cross-examination Dr Casolin, Mr Bellia, and Ms Joseski. It is unnecessary to set out the evidence they gave under cross-examination because their evidence was not directly relevant to the issues that were remitted to this Court. That is largely so because, as will appear shortly, the evidence does not suggest that any of Dr Casolin, Mr Bellia, or Ms Joseski joined in the decision Sydney Trains made to terminate Ms Annovazzi’s employment. After Ms Annovazzi completed her cross-examination, counsel for Sydney Train made oral submissions. Ms Annovazzi, who is not legally represented, said she did not have any submissions to make “because I think everything has been put as far as it can and I have no knowledge of these events”.

4. During the morning of 18 September 2025 Ms Annovazzi sent an email to my Associate’s inbox (copied to Ms McMahon) attaching an affidavit Ms Annovazzi made, together with the exhibit referred to in the affidavit. Ms Annovazzi said she wanted me to look at the material. I indicated to the parties that when considering my judgment I would look at the material for the purpose of determining whether it raises any issue that may be potentially relevant to the issues that had been remitted to this Court, and inform the parties with a view to inviting further submissions. I have read the material, and I am satisfied there is nothing in it that raises an issue that is potentially relevant to the determination of the issues that have been remitted to this Court.

   FIRST QUESTION TO BE CONSIDERED ON REMITTER

5. In the April Reasons I identified three questions the FFC remitted to this Court for its consideration. The first arises out of errors 1, 2, and 3 I identified in the April Reasons (emphasis added):[4]

   As a result of the conclusion we have reached that each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi, it follows that the matter will need to be redetermined on that basis. It would follow that the questions as to the appropriate comparator and causation will need to be redetermined by reference to our finding. In this regard, the central question will be why the dismissal occurred having regard to the objective circumstances of the decision-making process.

   We do not consider that we are in a position to determine these matters for ourselves. We have received no submissions from the parties as to the determination of the case on this basis. There are factual findings made by the primary judge that will bear upon these matters including, for example, the primary judge’s statement at PJ [54] that his Honour was not prepared to find that those involved in the decision to terminate Ms Annovazzi’s employment were not unaware of the text messages between Ms Annovazzi and Mr Bellia, and the statement in Ms Browning’s email of 9 January 2018 that Sydney Trains had been provided with conflicting information from Ms Annovazzi.

   [4] State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120, [129], [130].

   Should the New Evidence be considered?

6. It is apparent that the first issue the FFC remitted to this Court was based on a factual predicate (FFC factual predicate), namely, that “each of TSS, Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi”. Sydney Trains, however, has adduced into evidence documents (New Evidence) which disclose a state of affairs that is different from the FFC factual predicate. The New Evidence shows that, although Ms Browning and Ms Samassa were involved in the acts and conduct that constituted the decision to terminate Ms Annovazzi’s employment, TSS was not involved; Ms Vlahos was involved. The question arises whether it is open to consider the first question remitted to this Court on the basis of the New Evidence, rather than on the FFC factual predicate. That question is to be answered in the affirmative.

7. The FFC set aside the findings I made in the June Reasons about the persons who were involved in the acts and conduct that constituted the decision Sydney Trains made to terminate Ms Annovazzi’s employment. That reopened for determination the question of the identity of the person or persons within Sydney Trains who was or were so involved. The question having been re-opened, it was open to Sydney Trains to apply for leave to adduce evidence that sheds light on that question; and it was open to me, as I held in the April Reasons, to receive such evidence. I therefore propose to decide the first of the questions the FFC remitted to this Court by reference to the evidence that was before me at the initial hearing together with the New Evidence.

   The New Evidence and some facts found in the June Reasons

8. Although I have set out the New Evidence in the April Reasons, it would be convenient to reproduce much of it in these reasons. I will also reproduce the effect of some of the evidence I reproduced in the June Reasons to place the New Evidence in its chronological context.

9. I begin with the “Briefing Note” dated 30 November 2017 from Ms Vlahos to Health Solutions.[5] By this briefing note Ms Vlahos, who held the position of Manager Training & Competence, requested Health Solutions to:

   undertake a FFD assessment and to refer Trainee Driver Annovazzi for a Psychiatric and if required neuropsychological assessment to determine if she is suitable to undertake Category I duties by Sonic asap, as well as the impact of not being able to take dexamphetamine could have on her attentiveness.

   [5] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 18.

10. At 9:27 am on 8 December 2017 Mr Lesser, who held the position of “Senior Health Solutions Coordinator Injury & Claims Management | Transport Shared Services”, sent an email to Mr Ian Elliot which included the following:[6]

    I believe my manager, Sharon Martin, briefly spoke with you regarding a referral we have received for Renee Annovazzi who began her employment with Sydney Trains in October.

    Please see attached brief we have received from local management as it states in this brief that the employee (who is clearly still on probation) did not declare her medical condition in her application nor at the triggered health assessment she was required to attend.

    If you could please clarify what the employee did or did not declare in her application it would be appreciated as I am of the opinion that this case should not have been referred to us and should have been referred to HR or Workplace Conduct.

    [6] Affidavit A L Sharp 06.12.2024, exhibit AS-1, pages 51-52.

11. Mr Elliot responded by email sent at 9:46 am on 8 December 2017 (copied to Ms Amanda Robertson and Ms Biljana Joseski) in which he stated as follows:[7]

    Thanks for your email.

    Billie, copied to this email is the recruiter for this campaign (TTD - 000051X5), however, I’ve had a look at the employee’s application and can’t see anything mentioned about her health condition being declared as you ask below.

    I’ve copied in our manager, Amanda, in case she would like to comment further.

    [7] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 51.

12. Mr Lesser then sent to Ms Browning the following email at 12:11 pm on 8 December 2017.[8]

    I am seeking your assistance with a matter pertaining to a new employee, Trainee Train Driver - Renee Annovazzi, who commenced employment with Sydney Trains In October.

    Renee’s manager referred her to our team for a fitness for duty assessment as she self-identified that she was taking medications for a medical condition which may show up as a positive result on random drug testing.

    The issue is the employee advised management that she did not declare this medical condition on her job application nor at her initial Category 1 health assessment.

    Having discussed this at length with my own management team, we do not believe this should have been referred to us and rather should be handled by HR and possibly Workplace Conduct as the employee has admitted to not divulging her medical condition as required for her application or at the initial health assessment.

    It would be appreciated if you could please review the response from Recruitment and attached brief signed by Soula Vlahos and provide some direction on how this matter should be handled.

    [8] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 50.

13. At 6:40 pm on 13 December 2017 Ms Vlahos sent to Ms Browning the following email:[9]

    Dr Casolin provided advice over the phone. His advice was to request and FFD.

    I have since spoken the Renee after my discussions with Dean Lesser and she is adamant that she advised Sonic of her medical condition and that she was taking medication. She also claims that she did not indicate that she had a medical condition in her application as she did not think the condition would impact on her role as a driver.

    We had a similar case recently for a trainee driver who declared that he was prescribed the same medication as Renee but had not commenced taking the medication until he sought permission from his employer. He went through an FFD and has been found fit for CAT 1 and also approved to take the medication. He will however need to attend an assessment for dyslexia.

    I will be guided by you on what approach we take in relation to Renee's case.

    [9] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 50.

14. At 4:50 pm on 18 December 2017 Ms Browning sent to Mr Elliot (copied to Biljana Joseski) an email in which she stated as follows:[10]

    Further to the enquiry regarding the medical declarations of employee Renee Annovazzi, can you please assist with the following at your earliest:

    -Full copy of application

    -Indication of the Sonic Medical appointment who was the Dr

    [10] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 56.

15. Ms Joseski responded to Ms Browning’s email by email sent at 5:29 pm on 18 December 2017 containing a link to Ms Annovazzi’s application and medical report.[11]

    [11] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 57.

16. At “10:11:00 AM + 11:00” on 19 December 2017 Ms Browning sent to Mr Lesser an email that included the following:[12]

    Is it possible for you to make contact with the Sonic Dr (refer to last page of attached report), and ask the following questions regarding Ms Annovazzi’s declarations/discussions at the initial medical assessment.

    -Did she indicate ADHD

    -Did she indicate Asperger Syndrome

    -Did she indicate the use of Dexamphetamine

    With confirmation or otherwise of the above, I will progress with the appropriate next steps.

    [12] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 57.

17. At 11:08 am on 19 December 2017 Mr O’Neill sent an email to the email address of Sonic Health, copied to Julia Sesnan, Mr Lesser, and Ms Browning, that included the following.[13]

    Could you please confirm with Dr Kumar if Ms Annovazzi made the following declarations / discussions at the initial medical assessment:

    -Did she indicate ADHD

    -Did she indicate Asperger Syndrome

    -Did she indicate the use of Dexamphetamine

    [13] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 73.

18. Ms Browning responded by email sent to Mr O’Neill at 11:09 am on 19 December 2017 in which she said:[14]

    Thanks Malcolm.

    As an aside, we are also asking Ms Annovazzi to provide a medical note from her Dr re the medication and conditions.

    With a full picture, the next steps will (hopefully) become evident.

    [14] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 72.

19. At 1:42 pm on 19 December 2017 “Luke” from “Specialised Rail Unit” sent an email to Mr O’Neill (copied to Ms Sesnan, Mr Lesser, and Ms Browning) in which he said “we cannot disclose what declarations have been noted on the below candidate’s medical”, and requested that Mr O’Neill “advise us if you would like us to pass this medical onto Dr. Casolin for review”. [15] Ms Browning sent an email to Luke of “Specialised Rail Unit” requesting to “have the information provided to Dr Casolin”.[16]

    [15] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 73.

    [16] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 73.

20. On 20 December 2017 another employee of Sydney Trains, Mr Bill Chami, sent the following email to Ms Annovazzi:[17]

    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.

    [17] June Reasons, [60].

21. At 2:55 pm on 8 January 2017 Ms Zidan sent an email to Mr Lesser asking him to provide an update.[18] Mr Lesser responded at 8:56 am on 9 January 2017 with the following email:[19]

    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.

    [18] June Reasons, [62].

    [19] June Reasons, [62].

22. At 2:24 pm on 9 January 2018 Ms Zidan sent an email to Dr Casolin and to Ms Browning asking for an update.[20] 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”.[21]

    [20] June Reasons, [64].

    [21] June Reasons, [64].

23. At 3:36 pm on 9 January 2018 Ms Browning sent the following email to Dr Casolin and Ms Zidan (copied Mr Lesser, Ms Vlahos, and Ms Ball):[22]

    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.

    [22] June Reasons, [65].

24. At 4:11 pm on 9 January 2018 Dr Casolin responded to Ms Browning’s email stating that he did not have a copy of Ms Annovazzi’s medical note, but he was “told by Dr Jones from Sonic that no psych condition was declared nor was dexamphetamine use”.[23]

    [23] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 75.

25. At 9:48 am on 15 January 2018 Mr Lesser sent an email to Ms Browning requesting “an update regarding this case and whether it has been determined that the FFD assessment should proceed”.[24] Ms Browning responded by email sent to Mr Lesser at 8:36 pm on 15 January 2018 in which she said as follows:[25]

    She had until this week to provide information from her own Dr regarding her condition.

    I await this prior to determining next steps.

    I ve (sic) confirmed with Dr Casolin, the conditions and medication were not indicated during her pre-employment medical.

    [24] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78.

    [25] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78.

26. Mr Lesser replied by email sent at 8:26 am on 16 January 2018 thanking Ms Browning for her reply, and noting that he “will follow up again with [Ms Browning] next week regarding this matter”.[26]

    [26] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 78.

27. At 12:04 pm on 25 January 2018 Ms Annovazzi sent to Dr Casolin an email attaching the letter from Dr Frukacz which is reproduced in paragraph 68 of the June Reasons.[27] At 12:58 pm on 25 January 2018 Dr Casolin sent the following email to Mr David Jones of Sonic Health (errors in original):[28]

    Hi David you may recall Ms Annovazzi was attended a pre-employment health assessment for train driving but did not declare her pre-existing ADHD, dexamphetamine or aspergers. Can you please arrange for the attached letter to be saved on her file in the event that we request an FFD. The letter raises more concerns in my mind than it answers as Ms Annovazzi has ADHD that requires stimulant therapy but she only uses it PRN.

    [27] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84.

    [28] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84.

28. As is recorded in paragraph 70 of the June Reasons, 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:

    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.

1. At 2:38 pm on 25 January 2018, in response to Dr Casolin’s email, Ms Browning sent an email to Dr Casolin and Mr Lesser (copied to Ms Vlahos and Ms Ball) thanking Dr Casolin for the email and continuing with: “Dean –can we proceed to arrange a fitness for duty”.[29]

   [29] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 87.

2. At 4:03 pm on 25 January 2018 Mr Jones sent an email to Dr Casolin, which appears to respond to the email Dr Casolin sent to him at 12:58 pm on 25 January 2018. Mr Jones said:[30]

   Presumably only when she feels her attention is particularly deficient? Oh dear.

   I assume you can’t just sack her for lying (sorry, concealing the truth) on her PEM assessment?

   I will arrange for the letter to be put in her folder as requested, but what about her RSW classification – she is currently FU so isn’t due another assessment for another 4 years or so?

   [30] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84.

3. Dr Casolin, in turn, responded with the following email he sent to Mr Jones at 4:35 pm on 25 January 2018 (errors in original):[31]

   Thanks David. That might be what happens but I don t have visibility of what action the workplace conduct unit might be taking.

   [31] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 86.

4. Mr Jones replied at 4:39 pm on 25 January 2018 with the following email:[32]

   OK – if you could let me know what happens, because if she retains her job and doesn’t otherwise get an FFD, my view is that she should be on annual reviews for this issue so I will have to fix that ….

   [32] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84.

5. Dr Casolin completed this email exchange with an email he sent to Mr Jones at 4:49 pm on 25 January 2018 (errors in original):[33]

   Agreed. She has been removed from driver school for now and, if she isn t dismissed, won t be going back without an FFD

   [33] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 84.

6. In the meantime, at 4:37 pm on 25 January 2018 Ms Browning sent the following email to Dr Casolin and Mr Lesser, copied to Ms Vlahos and Ms Ball:[34]

   Thanks Dr Casolin.

   Dean we will not be pursuing FFD any further for Ms Annovazzi

   Soula as discussed, we will progress with recommending termination under probation as there appears to be deliberate omissions in the pre-employment information. I will pull together the relevant brief required and progress through for approvals.

   [34] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 92.

7. At 9:03 am on 30 January 2018 Ms Browning sent the following email to Ms Vlahos (shading in original):[35]

   Attached is the Briefing note recommending the Termination on Probation of Ms Renee Annovazzi.

   Per the delegations, Director People and Change has the delegation, in consultation with the relevant Level 4 manager (ie you)

   Can you please review and sign the attached BN to me and I will arrange for onward delivery.

   [35] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 100.

8. I find that the “attached BN” identified in Ms Browning’s email to Ms Vlahos is the “Briefing Note” (30 January BN) that is addressed to Ms Samassa, and copied to a Ms Liz Pearce, “Senior Workplace Relations Consultant”. The 30 January BN is as follows (emphasis added):[36]

   [36] Affidavit A L Sharp 06.12.2024, exhibit AS-1, pages 37-38.

   ISSUE

   Employee Renee Annovazzi (e/n: 20012706), commenced as a Trainee Driver with Sydney Trains on 13 October 2017, with a six month probation period. During training, Mr Annovazzi [sic] declared she had undiagnosed medical conditions and was taking prescription medication - information she had not disclosed during her preemployment medicals.

   BACKGROUND

   After commencement with Sydney Trains, Ms Annovazzi declared she had undiagnosed conditions of ADHD and Aspergers Syndrome and was taking prescribed Dexamphetamine. She was immediately removed from the Driver Trainer program and placed on alternate duties within Operations Support.

   On 30 November 2017, Soula Vlahos requested a triggered medical for Ms Annovazzi (Tab A). At this time, discussion began between HR, Legal, Health Solutions TSS, and Sydney Trains Health Solutions regarding the most appropriate course of action.

   On 19 December 2017, Ms Annovazzi was requested to provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Aspergers Syndrome. This information was provided in confidence to Dr Casolin on 25 January 2018 - confirming her use of Dexamphetamine only (Tab B).

   On 9 January 2018, Confirmation was received from Sonic Health Solutions, via Dr Casolin, that no psychological conditions were declared, nor was the use of Dexamphetamine (Tab C). Further to this, a review of Ms Annovazzi's employment application (qns 10 & 12) confirms no medical conditions were declared (Tab D).

   CURRENT POSITION

   Ms Annovazzi has been completing alternate duties within the Training and Competence Assurance section of Operations Support, since her declaration of the above.

   Discussions with Dr Casolin confirm there remains a question around her suitability for rail safety work due to the self-declared medical conditions of ADHD and Asbergers’ [sic] Syndrome. Conducting a Fitness for Duty is an option available to Sydney Trains. However, the overriding consideration is Ms Annovazzi's failure to declare medical conditions and prescribed medications. Ms Annovazzi's failure to truthfully and honestly participate in the selection and appointment process enabled her to progress unchallenged and gain employment that may not have otherwise been available.

   RECOMMENDATION

   Ms Annovazzi's employment with Sydney Trains is terminated within her probation period, due to her failure to declare medical conditions and prescription medications during her pre-employment medicals with Sonic Health Plus and in her written application.

9. The 30 January BN provided for two persons to sign, one who “Endorsed” the recommendation, and another who “Approved” the recommendation. Ms Vlahos’s name appears as the person the 30 January BN contemplates will endorse the recommendation, and Ms Samassa is the person the 30 January BN contemplates will approve the recommendation. The 30 January BN in evidence contains what appears to be the signature of Ms Vlahos, but not the signature of Ms Samassa.

10. On 30 January 2018 Ms Browning sent an email to Ms Vlahos attaching a “letter for issue to Renee Annovazzi”, the attached letter being the letter terminating Ms Annovazzi’s employment.[37]

    [37] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 101.

    What the evidence, and the New Evidence reveal

11. As I noted at the beginning of these reasons, the New Evidence is inconsistent with the FFC factual predicate because it shows that Ms Vlahos, Ms Browning, and Ms Samassa were the persons involved in the acts and conduct that constituted the decision to dismiss Ms Annovazzi from her employment, not TSS, Mr Browning, and Ms Vlahos. The New Evidence also shows that Sydney Trains made inquiries about whether Ms Annovazzi advised Sonic Health of her medical condition and that she had been taking medication. The inquiries, however, were deficient because they did not extend to making any inquiries directly of Dr Kumar, being the person who examined Ms Annovazzi on 22 June 2017, and to whom Ms Annovazzi claimed she had revealed her conditions and use of dexamphetamine. As I noted in the June Reasons, Ms Annovazzi’s evidence was that she had disclosed her diagnoses of Asperger’s Syndrome and Attention Deficit Hyperactive Disorder to Dr Kumar during her medical examination, and that she had been previously prescribed use of dexamphetamine for the latter, although she had stopped using it months prior.[38]

    [38] June Reasons, [21]-[25]; [37].

12. Sydney Trains submits the New Evidence together with other evidence supports the finding that Ms Browning and Ms Vlahos were the key persons who participated in making the decision to dismiss Ms Annovazzi. Sydney Trains further submits that the New Evidence shows that Ms Vlahos and Ms Browning genuinely believed that Ms Annovazzi had not been honest by not disclosing she had ADHD and autism spectrum disorder and had been prescribed dexamphetamine; and that the basis of their genuine belief included the information they received from Dr Casolin that he had been “told by Dr Jones from Sonic that no psych condition was declared nor was dexamphetamine use”.[39]

    [39] Affidavit A L Sharp 06.12.2024, exhibit AS-1, page 75.

    Determination

13. The New Evidence, considered alone, is reasonably capable of supporting findings that Ms Browning and Ms Vlahos were the key persons who participated in making the decision to dismiss Ms Annovazzi; and that Ms Browning and Ms Vlahos believed that Ms Annovazzi did not disclose her diagnoses of Asperger’s Syndrome and Attention Deficit Hyperactive Disorder, and that she had been previously prescribed use of dexamphetamine. I am not prepared, however, to make positive findings to this effect; and that is because neither Ms Browning nor Ms Vlahos were available to be cross-examined about representations the New Evidence records they made. The New Evidence, however, is relevant to determining whether there is any basis for finding, on the balance of probabilities, that Ms Browning or Ms Vlahos, or any other person within Sydney Trains, made the recommendation or decided that Ms Annovazzi be dismissed because she had been diagnosed with, or was perceived to have, Asperger’s Syndrome and Attention Deficit Hyperactive Disorder.

14. At the hearing I asked counsel for Sydney Trains whether the passage from the 30 January BN I emphasised above could be construed as including Ms Annovazzi’s “suitability for rail safety work due to the self-declared medical conditions of ADHD and Asbergers’ [sic] Syndrome” as a reason for Ms Browning and Ms Vlahos recommending that Sydney Trains terminate Ms Annovazzi’s employment. Counsel submitted that the 30 January BN could not reasonably be so construed. Counsel in effect submitted that the 30 January BN identified two options that were available to Sydney Trains in relation to Ms Annovazzi’s employment. One option was for Ms Annovazzi to be referred for a fitness for duty assessment for the purpose of assessing whether she was fit to be a train driver, given her self-diagnosed condition; and the other option was terminating Ms Annovazzi’s employment for asserted non-disclosure. The reference to Ms Annovazzi’s diagnosed condition, therefore, was no more than an element of one of the two options the 30 January BN stated was available to Sydney Trains in relation to Ms Annovazzi’s employment; it was not a reference to a reason for recommending that Sydney Trains dismiss Ms Annovazzi’s employment.

15. I am satisfied that the 30 January BN cannot reasonably be construed as identifying two reasons for which Ms Browning and Ms Vlahos recommended Sydney Trains terminate Ms Annovazzi’s employment, one of which was Ms Annovazzi’s perceived “suitability for rail safety work due to the self-declared medical conditions of ADHD and Asbergers’ [sic] Syndrome”. The 30 January BN referred to Ms Annovazzi’s condition as an element of one of the two options the 30 January BN identified were available to Sydney Trains in relation to Ms Annovazzi’s employment. Reasonably construed, the recommendation the 30 January BN made that Sydney Trains terminate Ms Annovazzi’s employment was based on Ms Annovazzi’s asserted non-disclosure; it was not based on Ms Annovazzi’s medical conditions.

16. There is, therefore, nothing in the evidence and the New Evidence that is reasonably capable of supporting a finding on the balance of probabilities that Sydney Trains terminated Ms Annovazzi because Ms Annovazzi had or was perceived as having ADHD or Asperger’s Syndrome. Further, given the presence of the New Evidence, there are no significant evidentiary gaps, as I found there were at the time of the initial hearing, that invite consideration of whether inferences should be drawn about who was involved in the decision to terminate Ms Annovazzi’s employment, or the reasons for which such a decision was made.

17. For these reasons, Ms Annovazzi’s claim that, contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth), Sydney Trains terminated her employment because she had been diagnosed with, or was perceived to have, Asperger’s Syndrome and Attention Deficit Hyperactive Disorder, fails.

    OTHER QUESTIONS ON REMITTER

18. My conclusions in relation to the first question remitted to this Court necessarily means that the second question I identified in the April Reasons (at paragraphs 21 and 22) that was remitted to this Court must be answered adversely to Ms Annovazzi. That is, given the evidence and the New Evidence, Ms Annovazzi is unable to establish on the balance of probabilities that Sydney Trains terminated her employment because she had been diagnosed with, or was perceived to have, Asperger’s Syndrome and Attention Deficit Hyperactive Disorder.

19. The third question I identified in the April Reasons (at paragraph 23) that was remitted to this Court must also be decided adversely to Ms Annovazzi. As I noted in the April Reasons, the third question would only need to be redetermined if I were to conclude on remittal that Sydney Trains engaged in unlawful discrimination.

    DISPOSITION

20. I propose to order that the application be dismissed.

21. I will reserve to the parties liberty to apply within 35 days after the day I pronounce orders for any order as to costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       26 September 2025