Barndon and Field

[2017] WASAT 2

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   BARNDON and FIELD [2017] WASAT 2

MEMBER:   MR J MANSVELD (SENIOR MEMBER)

HEARD:   11 AND 12 AUGUST 2016

DELIVERED          :   10 JANUARY 2017

FILE NO/S:   EOA 17 of 2016

BETWEEN:   MONIKA BARNDON

Applicant

AND

MICHELINA FIELD
First Respondent

LESLEY FIELD
Second Respondent

MY PLACE FOUNDATION INC.
Third Respondent

Catchwords:

Discrimination ­ Equal opportunity ­ Direct discrimination ­ Impairment ­ Unlawful discrimination by dismissing applicant ­ Requirement to undergo further medical assessment ­ Term or condition of employment ­ Unlawful discrimination occurred ­ Respondents able to rely upon exception in s 66Q of Equal Opportunity Act 1984 (WA) ­ Reasonable for respondents to conclude that applicant was unable to carry out work reasonably required to be performed in course of her employment

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 66A, s 66B, s 66Q, s 93(1), s 123, s 160
Workers' Compensation and Injury Management Act 1981 (WA), s 84AA

Result:

Complaints of discrimination dismissed

Summary of Tribunal's decision:

Ms Monika Barndon, the applicant in these proceedings, was a carer for two adults with severe physical and mental disabilities.

She was employed by the parents of the disabled adults who received funding for the costs of their children's care from the Disability Services Commission.

The parents had contracted My Place Foundation Inc. to provide them with employment coordination services and budgetary assistance.

In August 2013, Ms Barndon sustained an injury to her foot in the course of her employment which became the subject of a workers' compensation claim.

In the treatment for the foot injury, which included an operation, a longstanding shoulder injury (a massive rotator cuff injury) became symptomatic.

The shoulder injury was not accepted by the insurance company as a work related injury.

Mr Barndon was off work and in receipt of workers' compensation payments for her foot injury from May 2014.

In September 2014, Ms Barndon was dismissed from her employment but that decision was reversed because it was found to be in breach of the Workers' Compensation and Injury Management Act 1981 (WA).

Ms Barndon underwent rehabilitation and a work placement at the Salvation Army.

The parents of the disabled adults were facing budgetary problems because extra costs had been incurred since May 2014 as a consequence of having to employ casual staff and to pay overtime for existing staff during Ms Barndon's absence.

In March 2015, the parents dismissed the applicant from her employment as carer.

Ms Barndon subsequently lodged a claim with the Equal Opportunity Commission.  She alleged that she had been adversely discriminated against on the ground of her impairment.

The Tribunal found that discrimination had occurred but that the parents of the disabled adults had satisfied the requirements of the exception contained in s 66Q of the Equal Opportunity Act 1984 (WA). The parents were found to have been justified in concluding that Ms Barndon was unable to carry out the work reasonably required to undertake the caring role for their children.

Ms Barndon's claim was therefore dismissed.

Category:    B

Representation:

Counsel:

Applicant:     Mr H Rigby

First Respondent           :     Mr R Lindsay

Second Respondent      :     Mr R Lindsay

Third Respondent          :     Mr R Lindsay

Solicitors:

Applicant:     Haydn Rigby Lawyers

First Respondent           :     Capital Legal

Second Respondent      :     Capital Legal

Third Respondent          :     Capital Legal

Case(s) referred to in decision(s):

Abela v State of Victoria [2013] FCA 832

Airflite Pty Ltd v Goyal [2003] WASCA 45

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Edoo and Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16

Jamal v Department of Health (1988) 14 NSWLR 252

Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165

Qantas Airways Ltd v Christie (1998) 193 CLR 280

Van Der Kooij and Fire and Emergency Services Authority of Western Australia [2009] WASAT 221

Williams and Commissioner of Police [2005] WASAT 349

X v Commonwealth of Australia (1999) 200 CLR 177

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act1984 (WA) (EO Act).

2. On 9 September 2015, Ms Monika Barndon (applicant) lodged complaints with the Equal Opportunity Commission of Western Australia (EOC) alleging discrimination by seven respondents including Michelina Field (first respondent), Lesley Field (second respondent) and My Place Foundation Inc. (third respondent) (also referred to collectively as the respondents).

3. In the course of the investigation by the EOC, complaints against four of the respondents were withdrawn or dismissed.

4. What remained was a complaint against the first and second respondents alleging discrimination on the ground of impairment in the area of employment and a complaint under s 160 of the EO Act against the third respondent (complaints).

5. Section 160 of the EO Act states that a person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under the EO Act shall for the purposes of the EO Act be taken also to have done the act.

6. On 18 April 2016, the EOC referred the complaints to this Tribunal pursuant to s 93(1) of the EO Act.

7. The complaints were referred to mediation in the Tribunal on 17 May 2016.  Mediation was not successful and the complaints were listed for a final hearing on 11 and 12 August 2016.

8. The applicant gave evidence.  The first and second respondents did not attend the hearing and did not give evidence.

9. The third respondent called three witnesses:

   •Darren Ginnelly (Managing Director) (Mr Ginnelly);

   •Helen Payne (Coordinator) (Ms Payne); and

   •Robyn Brandt (Human Resources Coordinator) (Ms Brandt).

10. Both the applicant and the respondents were represented by counsel, the respondents being represented by the same counsel.

11. Both the applicant and the respondents filed with the Tribunal a statement of issues, facts and contentions (SIFC), a bundle of documents and witness statements or affidavits.  The applicant also filed a 'Schedule of Damages' and the third respondent a 'Profit and Loss Statement' for the period July 2013 through to June 2014 in respect to the disbursement of funding received by the first and second respondents for the care of their disabled children.

12. The decision was reserved.

Decision

Relevant provisions of the EO Act

4.Terms used

(1)In this Act, unless the contrary intention appears ­

…

impairment in relation to a person, means one or more of the following conditions ­

(a)any defect or disturbance in the normal structure or functioning of a person's body; or

(b)any defect or disturbance in the normal structure or functioning of a person's brain; or

(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour, whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment -

(d)which presently exists or existed in the past but has now ceased to exist; or

(e)which is imputed to the person;

…

66A.Discrimination on ground of impairment

(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ­

(a)the impairment of the aggrieved person; or

(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or

(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ­

(a)the impairment of; or

(b)a characteristic that appertains generally to persons having the same impairment as; or

(c)a characteristic that is generally imputed to persons having the same impairment as,

any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

(2)For the purposes of subsection (1) or (1a), circumstances in which a person treats or would treat another person who has, or has a relative or associate who has, an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.

(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition ­

(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and

(b)which is not reasonable having regard to the circumstances of the case; and

(c)with which the aggrieved person does not or is not able to comply.

(4)     For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person who is blind, deaf, partially blind or partially deaf (in this subsection referred to as the aggrieved person) if the discriminator treats the aggrieved person less favourably on the ground of the fact that the aggrieved person possesses, or is accompanied by, a guide dog or hearing dog, or on the ground of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who possesses, or is accompanied by, a dog, but nothing in this Act affects the liability of the aggrieved person for any injury, loss or damage caused by the guide dog or hearing dog.

66B.    Discrimination against applicants and employees

(1)It is unlawful for an employer to discriminate against a person on the ground of the person's impairment ­

(a)in the arrangements made for the purpose of determining who should be offered employment; or

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

(c)in the terms or conditions on which employment is offered.

(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's impairment ­

(a)in the terms or conditions of employment that the employer affords the employee; or

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

(c)by dismissing the employee; or

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

(3)Nothing in subsection (1) renders it unlawful for a person to discriminate against another person, on the ground of the other person's impairment, in connection with employment to perform domestic duties on the premises on which the first­mentioned person resides.

…

66Q.    Exceptions to certain work related provisions in Div. 2

(1)Nothing in section 66B(1)(b) or (2)(c), 66C(1)(b) or (2)(c) or 66E(1)(a) or (2)(a) renders unlawful discrimination by an employer, principal or person against a person on the ground of the impairment of that person if it is reasonable for the employer, principal or person to conclude, on such grounds as having regard to the circumstances of the case and having taken all reasonable steps to obtain relevant and necessary information concerning the impairment it is reasonable for the employer, principal or person to rely on, that the person with the impairment because of that impairment ­

(a)would be unable to carry out work reasonably required to be performed in the course of the employment or engagement concerned; or

(b)would, in order to carry out that work, require services or facilities that are not required by persons who do not have an impairment and the provision of which would impose an unjustifiable hardship on the employer, principal or person.

(2)Nothing in section 66B(1)(c), (2)(a) or (b), section 66C(1)(c), (2)(a) or (b), section 66D(1)(a) or (c) or section 66E(1)(b), (2)(b) or (3)(a) renders unlawful discrimination by an employer, principal or person against a person on the ground of the impairment of that person in respect of any determination by the employer, principal or person of any terms or conditions relating to the person with the impairment that are reasonable having regard to either or both of the following ­

(a)any limitation or restriction that the impairment would or does impose on the person's ability to carry out the work required to be performed in the course of the employment or engagement concerned;

(b)any services or facilities that would be or are required by the person with the impairment in order to carry out the work referred to in paragraph (a) and that would not be or are not required by persons who do not have an impairment.

…

123.     Proof of exceptions

Where by any provision of this Act, conduct is excepted from conduct that is unlawful under this Act or that is a contravention of this Act, the onus of proving the exception in any inquiry lies upon the respondent.

…

160.     Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under this Act shall for the purposes of this Act be taken also to have done the act.

…

Background

1. It is useful at the outset to briefly summarise the history surrounding the complaint before referring to the detailed medical evidence and the evidence of the applicant and respondents.

2. The following is not in dispute.

3. The first and second respondents have two adult children with mental and physical disabilities who require 24 hour care and supervision.  The children are David Field (David) and Sandra Field (Sandra).

4. In 2007, the applicant entered into an employment contract with the third respondent.

5. The applicant was employed to provide direct care services to David and Sandra.

6. On 19 August 2008, the applicant signed an 'Employee Declaration' resigning from the third respondent and signed an employment contract (Contract for Private and Domestic Employee) with Sandra stated as the person 'pleased to engage you as one of my carers …' and signed by the first respondent.

7. At about the same time the first and second respondents entered into an arrangement with the third respondent whereby they purchased coordination services from the third respondent particularly in the areas of payroll, workers' compensation and other insurances.

8. The applicant continued to provide direct care to David and Sandra.

9. On 20 August 2013, the applicant suffered an injury to her right foot in the area of her big toe (foot injury).

10. The applicant continued to work until just before she had an operation on her foot injury on 8 May 2014.

11. The applicant began to receive workers' compensation payments for the foot injury from 9 May 2014.

12. In an appointment with the orthopaedic surgeon, Mr Anthony Geddes on 19 May 2014, the applicant first complained of pain and weakness in her right shoulder which upon further investigation revealed a longstanding massive rotator cuff tear with severe muscle atrophy (shoulder injury).

13. On 19 September 2014, the first and second respondents advised the applicant by letter that her employment would be terminated from 24 October 2014 due to a change in support arrangements for David and Sandra (2014 dismissal).

14. That decision was retracted when the respondents became aware that the applicant had been in receipt of workers' compensation payments for less than 12 months and the termination would have been in breach of s 84AA of the Workers' Compensation and Injury Management Act1981 (WA) (WC Act).

15. On 30 March 2015, the first and second respondents advised the applicant by letter as follows:

    We are writing with regret to let you know due to re­structuring of the team that looks after Sandra and David there is no longer a position available for you to return to.

    (2015 dismissal)

The complaint

1. In the applicant's SIFC filed on her behalf by the EOC on 8 July 2016, she alleges the following:

   1)By the 2014 dismissal, the first and second respondents unlawfully discriminated against the applicant on the ground of her impairment (the foot injury) by treating her less favourably than, in the same circumstances or circumstances that are not materially different, they would treat an employee who did not have such an impairment by subjecting the applicant to a detriment in contravention of s 66A(1)(a) and s 66B(2)(d) of the EO Act.

   2)By informing the applicant on 24 March 2015 that she was required to undergo a full medical assessment prior to recommencing her employment with the first and second respondents, the first and second respondents unlawfully discriminated against her on the ground of her impairment (the foot and shoulder injuries) by treating her less favourably than, in the same circumstances or circumstances that are not materially different, they would treat an employee who did not have such an impairment, in the terms of employment afforded the applicant by the first and second respondents in contravention of s 66A(1)(a) and s 66B(2)(a) of the EO Act.

   3)By the 2015 dismissal, the first and second respondents unlawfully discriminated against the applicant on the ground of her impairment (the foot and shoulder injuries) by treating her less favourably than, in the same circumstances or circumstances that are not materially different, they would treat an employee who did not have such impairments in contravention of s 66A(1)(a) and s 66B(2)(c) of the EO Act.

   According to the applicant, the person with whom she should be compared to in her claim of unlawful discrimination (the comparator), is a person without her impairment, who had been absent from work for the same period of time as her (for a valid reason and with the employer's consent), and who was also able to return to work on a graduated basis.

   4)The third respondent, through its officers and employees, is alleged to have instructed and aided the first and second respondents to do the unlawful acts referred to in the allegations and is therefore liable for those acts under s 160 of the EO Act.

2. Despite not having filed an amended SIFC, counsel for the applicant did not explicitly pursue the allegation based on the 2014 dismissal or the allegation based on the requirement for the applicant to undergo a medical assessment of which the applicant was informed on 24 March 2015.

3. Counsel for the applicant focused on the applicant's claim for unlawful discrimination based on the 2015 dismissal (including challenging the notion that the applicant could not perform her pre­injury duties) and the claim against the third respondent under s 160 of the EO Act.

The medical evidence

1. The Tribunal has before it a number of medical reports relating to the applicant's foot injury (in respect to which workers' compensation was paid) and the shoulder injury (which was not accepted by the relevant insurer, CGU, for workers' compensation purposes) and which individually or together represent the 'impairment' for the purposes of the complaints under the EO Act.

2. There is a significant dispute between the applicant and respondents as to the meaning given by the medical practitioners to the assessments made and opinions formed in those reports.

3. Unfortunately neither the applicant nor respondents called any of the medical practitioners to give evidence.  The Tribunal has had to rely on the reports and the submissions of the applicant and the respondents as to how the reports should be interpreted.

4. The medical practitioners from whom reports are available are as follows:

   •Dr Melanie Chen, General Practitioner (Dr Chen);

   •Mr Anthony Geddes, Orthopaedic Surgeon (Mr Geddes);

   •Mr Sven Goebel, Orthopaedic Surgeon (Mr Goebel);

   •Mr Douglas Sneddon, Consultant Orthopaedic Surgeon (Mr Sneddon); and

   •Mr G M Carter, Consultant Orthopaedic Surgeon (Mr Carter).

5. In chronological order the reports relevantly state as follows.

16 September 2013 - Dr Chen Workers' Compensation Progress Medical Certificate

1. Dr Chen refers to the foot injury, an x­ray that was taken and the medical management being medication (pain relief) and physiotherapy.

30 January 2014 - Mr Geddes to Dr Chen

1. Mr Geddes refers to the foot injury and states that despite her pain and discomfort, the applicant has continued to work as a personal carer doing her 'normal job'.  He states that the swelling of the big toe has not abated and that physiotherapy has not resolved the problem.  Mr Geddes suggests the use of a 'Darco' shoe and arranges for an injection of a local anaesthetic and steroid into her right big toe MTP joint to try and help settle the pain and swelling.

19 May 2014 - Mr Geddes to Dr Chen

1. Mr Geddes refers to the outcome of the operation that the applicant underwent on her foot injury on 8 May 2014.  The wounds have healed and the applicant will need to wear a 'dorsomedial slab' for the next five weeks.

2. The shoulder injury is mentioned for the first time.  There is evidence of significant weakness of the applicant's external rotators and some weakness of her deltoid muscle.  Mr Geddes is unsure whether the applicant has an issue with the actual shoulder joint or whether she has a problem with her neck and/or possibly her upper frames.  He arranges x­rays and an MRI of the applicant's shoulder and cervical spine.

9 June 2014 - Mr Geddes to Dr Chen

1. Mr Geddes states that the MRI of the applicant's right shoulder shows evidence of a longstanding massive rotator cuff tear.  There is evidence of degenerative changes.  With regards to the applicant's cervical spine the MRI shows evidence of changes in the C5 and C6/7 disc space.  Mr Geddes treats the applicant's shoulder with a local anaesthetic and steroid to see whether this will reduce her pain.  He refers the applicant to another orthopaedic surgeon regarding the shoulder injury and to a spinal surgeon for an opinion regarding her cervical spine.

19 June 2014 - Mr Geddes to Ms P Corrigan, Senior Case Manager CGU Workers' Compensation (CGU)

1. Mr Geddes summarises his assessment of the foot injury, shoulder injury and the matter of the cervical spine.  The summary is consistent with the advice to Dr Chen in the letter of 9 June 2014 but in addition states that at the time of clinical examination the applicant's foot was 'fine' but that she did have evidence of some weakness of her right shoulder with respect to shoulder abduction and also restricted external rotation.  The applicant is reported to have said that prior to her surgery she had no issues with her shoulder or her neck.  With respect to the applicant's cervical spine there is evidence of some disc protrusion, disc bulge and disc degeneration.

2. Mr Geddes opines that the underlying processes in the applicant's shoulder injury are longstanding and that it is certainly possible her initial mobilisation with use of crutches may have stirred up her shoulder discomfort, she having reported as being previously pain­free.

20 June 2014 - Mr Goebel to Mr Geddes

1. Mr Goebel notes that the applicant has been under the care of Mr Geddes for the foot injury.  He confirms that the applicant has a massive rotator cuff tear in her shoulder with severe muscle atrophy and that it is a longstanding pre­existing problem which has probably been aggravated by a small amount of trauma that occurred while being positioned on the operating table.  Mr Goebel notes that the applicant is surprised and quite devastated by his assessment because she has functioned so well before and is now 'so disabled that she cannot work properly'.  Mr Goebel states that the options are 'rather limited'.  The only option includes a cortisone injection together with physiotherapy and the second option includes a reverse shoulder replacement.  Mr Goebel states that he will review the applicant in three weeks.

7 August 2014 - Mr Sneddon to CGU

1. Mr Sneddon refers to a referral letter from CGU dated 31 July 2014 (not before the Tribunal) and the reports from Mr Geddes and Mr Goebel.  The referral to Mr Sneddon is in regard to the causation of the applicant's shoulder injury.  Mr Sneddon forms the opinion that neither the surgery nor the foot injury or the use of crutches subsequently caused a fresh disability to the right shoulder in its own right.  He assesses the rotator cuff tear as pre­existing and it being a complete tear long before the operation on the applicant's foot.  The tear has never been previously repaired, is longstanding and complete.  He also mentions a remodelling of parts of the shoulder joint which takes years to develop as does the observed muscle atrophy.

22 August 2014 - Mr Carter to CGU

1. Mr Carter states that the applicant has been referred for 'medical assessment and report'.  He describes the history of the foot injury, the operation and subsequent treatment.  The applicant reports that the pain in her foot has reduced markedly since the operation in May 2014 but that she still has pain after standing for one to two hours which is further increased by walking.

2. The applicant reports that she has pain in her shoulder on lifting, she can drive but finds the pedal position uncomfortable, she gets increased pain if she stands while cooking, she can only vacuum for a short time but the shoulder and neck pain worries her and she gets a slight increase if she hangs out clothes for too long so she does so for small periods of time.  She can push a shopping trolley but not carry weights.

3. Mr Carter carries out a 'limited examination' of the applicant's head/neck showing that she has 90% rotation of her neck, flexion and extension is full and lateral flexion to the right is decreased moderately.

4. The applicant's 'right upper limb' is 'briefly examined' given the history of a complete rotator cuff tear.  Mr Carter finds that flexion is full, abduction is present to 30° then a catch and inability to fully abduct until some manoeuvre is carried out when the applicant can abduct approximately 70°, external rotation is 50% of normal and internal rotation is 80% of normal and the applicant is tender over the rotator cuff and over the anterior shoulder joint on the right side.  Mr Carter opines that the applicant's shoulder pain is due directly to an attritional complete tear of her rotator cuff which is many years old because of the subluxation upwards of the shoulder with secondary osteoarthritic changes.  He states that the shoulder injury and neck injury would have both been symptomatic prior to the foot injury.

5. Mr Carter assesses that the applicant will become fit for work over the next two to three months with regard to the foot injury and that she has no impairment or inability to work as a result of the '5th toe'.

6. Mr Carter refers to a question posed by CGU which acknowledges that he is not an upper limb specialist but nonetheless seeks an opinion as to whether the use of crutches or being moved around on the operating table from the foot surgery had 'stirred up' the applicant's longstanding process in her right shoulder and cervical spine.  Mr Carter's response is that the applicant's description that the pain came on immediately after the surgery would need to be supported by some evidence and 'I understand she is being seen by other specialists and that evidence could be obtained from them asking appropriate questions of them'.

8 September 2014 - Dr Chen WorkCover WA progress certificate of capacity

1. Dr Chen refers to the foot injury.  She assesses the applicant as having some capacity to work in her pre­injury duties of carer for two hours per day, three days per week.  Dr Chen states that the applicant is able to drive but not to stand for periods longer than two hours regarding her right foot and is able to do clerical work.

5 January 2015 - Dr Chen WorkCover WA progress certificate of capacity

1. Dr Chen refers to the foot injury.  She assesses the applicant as having some capacity for her pre­injury duties of carer for five hours per day, two days per week.

12 March 2015 - Mr Geddes to Dr Chen

1. Mr Geddes states that the applicant reports that she is not experiencing any pain or problems and is walking a reasonable distance without pain.  She is able to climb ladders and stairs.  Mr Geddes examines her foot and notes that the applicant has no tenderness over the region of the big toe and she has a mobile IP joint.  She walks without a limp and she has quite good movement in her ankle.  Mr Geddes assesses the applicant as fit to return to her pre­injury activities and that he has not arranged to see her for any further review.

2. Mr Geddes also produced an undated workers' compensation progress medical certificate in which he states that the applicant is now functioning well, is in no pain and is fit to return to pre­injury duties with no further treatment required.

23 March 2015 - Dr Chen WorkCover WA progress certificate of capacity

1. Dr Chen refers to the most recent assessment of Mr Geddes and assesses that the applicant is able to work full­time and has made a full recovery from the operation on her foot.

24 March 2015 - Mr Carter to CGU

1. Under the heading 'Worker's Details', Mr Carter states as a description of the injury as 'right foot ­ fifth toe fracture'.  Mr Carter then gives a brief history of the foot injury.

2. Mr Carter undertakes a 'cursory examination of the shoulder' in which the applicant is able to have a full range of active movement in the shoulder itself, in the elbows, and wrists with full forearm rotation.  The range of movement in the applicant's fingers and hands is normal.

3. Under the heading 'Present Activities', Mr Carter states:

   She can now do driving, cooking, vacuuming, washing and hanging out clothes.  She can do gardening including digging with a shovel, mainly using the arch of her foot rather than the great toe. 

   She walks her dog 2km.

4. Under the heading 'Current Status', Mr Carter states:

   She has no pain in the toes and can toe­stand without pain. 

   She is getting no swelling and can stand for five hours at a time. 

   She has no numbness, tingling or pins and needles. 

   There is no redness or blueness and no other problems. 

   In particular the 5^th toe shows no current problems apart from the bump on the dorsum. 

   There is no pain or swelling, rubbing on shoes and no numbness or tingling. 

   Her shoulder has a full range of effective movement and she can hang clothes out. 

   Function has returned to normal with no pain, clicking or feeling of restriction. 

   Her neck pain has now become asymptomatic over the last four months.  There are no associated symptoms. 

5. Under the heading 'Present Work Status', Mr Carter states:

   Ms Barndon was previously working 66 hours per fortnight plus on-call hours, taking the total hours up to 93 per fortnight. 

   She feels she could do a return to work on full duties if offered. 

   She has been on a work trial of five hours a day for two and three days per week which is about two­thirds of her normal daily work and has had no symptoms. 

   She has patients weighing up to 60kg who only need to be lifted out of a chair occasionally. 

   She has been working for the Salvation Army four days a week for five or six hours in the last fortnight.  She is walking fairly long distances pushing trolleys, lifting mannequins and dressing them and using ladders to access high shelves.

6. In his 'Summary and Assessment' and in response to specific questions from CGU, Mr Carter refers only to the foot injury and in that respect he assesses the applicant as fully fit for her pre­injury duties in the open market as a disability personal assistant.  She is said to have some post­operative stiffness which was an expected outcome of the operation on the foot.

7. At the bottom of the report after Mr Carter's signature the following is stated:

   Note: Copies of this report are to be forwarded to both the worker and employer.

The applicant's evidence

1. The applicant describes herself as a 'Disabled Carer', and that on 30 January 2007 she commenced employment with the third respondent.

2. The third respondent assigned the applicant to work for Sandra and David whom the applicant describes as mentally and physically disabled, non­verbal and requiring all­day care and supervision.  Sandra and David reside in a property near to the home of their parents.

3. The applicant states that although the care of Sandra and David is physically demanding there are various other aspects to the care that do not involve such physical strain, those duties include basic cleaning, dusting, folding clothes, cooking and cleaning.

4. The applicant says that the 'Job Description' for a 'Personal Assistant' produced by the third respondent and which is before the Tribunal accurately reflects her duties caring for Sandra and David.  The duties are described under the headings lifestyle support, healthcare support, daily living support, community access support, financial management support, mentoring support, workplace health and safety and general.  The particular and relevant duties would depend on the needs of the person for whom care is undertaken.

5. The duties might include arranging medical appointments, administering or supervising medication, transporting the person to and from medical and professional appointments, assisting with self­care and general hygiene, assisting with washing, ironing and personal presentation, assisting with purchasing clothing and footwear, assisting with shopping for food, domestic and personal requirements and the preparation and cooking of meals, assisting with feeding, cleaning and washing dishes and assisting with home cleaning duties.  The duties also include encouraging the person to become an active and accepted member of the local community and to assist with transport arrangements and accompanying the person on outings and activities.

6. Some of the particular duties in caring for David and Sandra described by the applicant are showering and dressing, and accompanying them in the community.  The applicant says that both David and Sandra are able to walk to the bathroom and stand in the shower.  She agrees that David needs a manual wheelchair if extended walking is required and that there used to be a device on a motor vehicle which would facilitate getting the wheelchair onto the vehicle.  David likes to get out of the wheelchair himself and only weighs 37 kilograms.  When in the community David may need to be changed and when that has happened the applicant says she used the disabled toilets which provide ample space for that task to be done.  The applicant accepts that David 'at times like[s] to run a little bit' but that it is manageable (T:28; 11.08.16).

7. The applicant states that her shifts consisted of two overnight shifts and two day shifts.  She worked 93 hours per fortnight.  She says that she was never questioned about the performance of her work or her conduct.

8. The applicant states that on 19 August 2008 she was made to sign a contract stating that Sandra was to be her employer.  She states that her employment conditions did not change and she believed that the third respondent continued to be her employer although she says that in about March 2011 when she asked the third respondent to advise her finance broker about her wage details, she knew then that the first and second respondents were her employers.  However, the third respondent continued to be responsible for overseeing her work and dealt with employment matters including the payment of wages, workers' compensation and organising all her shifts.

9. The applicant sustained the foot injury on 20 August 2013.  She says that Dr Chen referred her to physiotherapy but this did not alleviate the pain and discomfort.

10. Dr Chen referred the applicant to Mr Geddes and when she saw him on 20 December 2013 he advised that she would need an operation on her foot and that there were no other treatments available.

11. The applicant states that up and until the operation on her foot on 8 May 2014 she continued to work her regular hours caring for Sandra and David.  She says that she remembers the work becoming more onerous because of the foot injury and that during this time she was wearing what she describes as a 'moon boot' (the 'Darco' shoe referred to by Mr Geddes in his report dated 30 January 2014).

12. The applicant states that the recovery from the foot injury was quite slow.

13. The applicant was referred to WorkFocus Australia (WorkFocus) on 3 September 2014 by CGU for a rehabilitation assessment to assist with a return to work.

14. The applicant states that on 17 September 2014 she met with a representative of WorkFocus, Ms Payne (Coordinator with the third respondent) and Rita Gugiatti, an auntie of David and Sandra (September 2014 meeting).

15. The applicant states that neither Ms Payne nor Rita Gugiatti accepted any of her offers to return to work in a modified position despite the assessment of Dr Chen (see Dr Chen's report of 8 September 2014).  The applicant says she believed she could have undertaken light duties such as cleaning and ironing.

16. The applicant says she was told she could not return to work because she was wearing a 'moon boot'.

17. The applicant states that on 19 September 2014 she received a telephone call from Ms Brandt (Human Resources Coordinator with the third respondent), stating that her employment had been terminated.  The applicant subsequently received the 2014 dismissal letter from the first and second respondents.

18. The applicant says that she found out that the termination did not comply with the WC Act and was able to have it rescinded.

19. The applicant states that on 4 November 2014 her rehabilitation officer with WorkFocus (rehabilitation officer) advised her that the third respondent would not accept a return to work with Sandra and David until she was fully fit for work.  She says that she recalls feeling extremely sad and rejected and believed that she was able to perform all her duties but for limited hours.

20. The applicant accepts that in about November 2014 she was asked by WorkFocus to forward her resume to an organisation called Interwork for a possible work position.  She also accepts that she did not forward her resume promptly and by the time she did, the position with Interwork had been filled.  The applicant says that the reason for the delay was that she was not clear what the position at Interwork entailed and she also was seeking confirmation that she would ultimately return to her position as carer for David and Sandra.  That is what she wanted.

21. The applicant says that on 5 January 2015, Dr Chen informed her that she was able to work a normal five hour shift two days per week.  On 30 January 2015, the applicant emailed Dr Chen's 'Progress certificate of capacity' to Ms Brandt and the rehabilitation officer.  She says that she did not receive a response so decided to telephone the rehabilitation officer upon which she says she was advised that the respondents did not want her to return to work unless she was fully fit.

1. The applicant states that at around this time her rehabilitation officer suggested she undertake volunteer work with the Salvation Army before returning to work with David and Sandra.

2. The applicant says that she commenced volunteer work with the Salvation Army on 14 January 2015 and worked from Monday to Friday.  She considered this a part of her rehabilitation.  The applicant says that the work tested her abilities at bending and lifting given that she was required to climb ladders, dress mannequins on high shelves, sweeping and sometimes moving furniture around.  She was on her feet for six to seven hours each day.

3. The applicant considers the work she performed with the Salvation Army to be more demanding that caring for Sandra and David.

4. The applicant contends that on 12 March 2015, Mr Geddes declared her fully fit to return to her pre­injury duties.  She says that Mr Geddes informed her that although she had suffered permanent damage to her big toe, the foot injury did not prevent her from performing her work.

5. The applicant states that on 24 March 2015 she attended an appointment with Mr Carter who also confirmed that she was fully recovered and fit to return to work in a pre­injury capacity.  Mr Carter told her that it would take him a few weeks to finish his report and he would send it to CGU.

6. On 24 March 2015, the applicant sent Ms Brandt an email attaching the 'Final Certificates' from Dr Chen and Mr Geddes.  She said that she was going to see the medical officer from 'mloca' (Mr Carter) on that day.

7. On 24 March 2015, Ms Brandt replied to the applicant's email with an email stating that before the applicant 'restart[s] work with the Fields', the first and second respondent had asked that she be booked for a 'full medical examination with our Health SonicPlus'.  The applicant recalls feeling as if this was yet another attempt to stop her returning to the workplace based on her previous impairment.  She says she contacted WorkCover (workers' compensation) and was advised that the request to see another doctor was unreasonable.

8. On 24 March 2015, the applicant emailed Ms Brandt stating that she had undertaken medical testing in the previous few months, the most recent with Mr Carter, and she did not believe that it was necessary to have any further tests because she had been given a full clearance from Mr Geddes to recommence her duties.

9. On 25 March 2015, Ms Brandt emailed the applicant stating that the fresh medical examination 'is something that needs to be done for overall physical health and wellbeing before coming back to work'.  Ms Brandt said this was a necessary part of the applicant returning to the position she had with the first and second respondents and that they were entitled to ask for this to be done.

10. On 27 March 2015, the applicant emailed Ms Brandt stating the advice she had received from WorkCover concerning the unreasonableness of a further medical examination and also stating that she had received a full clearance to return to work from Dr Chen, Mr Geddes and Mr Carter.  The applicant stated that CGU would receive Mr Carter's report the following week and that she would be waiting for advice on a return to work date and that in the interim she would continue with her rehabilitation program.

11. On 30 March 2015, the applicant received an email from Ms Brandt stating '[t]his medical is to do with your arm and shoulder injury which was brought to attention when you believed they had been injured and whilst surgery was being done'.  Ms Brandt had spoken with WorkCover and had received advice that the requirement to have a 'full physical check­up as previously requested' was something the first and second respondents were entitled to expect.

12. On 30 March 2015, the applicant responded to the email from Ms Brandt stating that Mr Carter had examined her thoroughly including the foot injury and shoulder injury (and arm) and that she had been cleared to resume normal duties.  Mr Carter said to the applicant that his report would be sent to CGU 'this week' and she suggested that Ms Brandt contact CGU to determine if Mr Carter's report had been received.

13. In her oral evidence the applicant questioned why she was not asked to be re­examined by the specialist, Dr Goebel if there was an ongoing concern about her shoulder injury.

14. On 30 March 2015, Ms Brandt emailed the applicant advising that her employment had been terminated and attached a letter of dismissal of the same date from the first and second respondents.

15. The applicant states that upon receiving the 2015 dismissal letter from the first and second respondents she was devastated.  She says she had always thought that she would return to the caring role for David and Sandra.  She was determined to complete her rehabilitation to the best of her abilities and she believed she had complied with all medical examinations as requested by CGU.

16. On 15 April 2015, the applicant received an email from Ms Brandt stating that the first and second respondents were not waiting for Mr Carter's report.

17. The applicant states that she received Mr Carter's report of 24 March 2015 in April 2015.  She says it was her understanding that the report would be forwarded by Mr Carter to the respondents.  She says that she did not forward the report to the respondents because she had already been dismissed from her employment and, in her view, Ms Brandt had made it clear in her email of 15 April 2015 that the first and second respondents would not be taking account of the report.

18. The applicant refers to the 'Closure Report' by WorkFocus dated 10 July 2015 as evidence that she had completed her assessments and was capable of returning to her work duties in a pre­injury state (WorkFocus report).

19. The applicant says that although she is 66 years of age she had intended to work until she was at least 70 because she is fit for work and because she has a mortgage.  She says she is single and has no partner to support her.  She enjoyed her work with Sandra and David and had a good relationship with them and they responded very well to her.  The applicant states that emotionally she feels as though she has let Sandra and David down and that everything she has achieved has not been appreciated.

20. The applicant says that she has been much stressed and that she has lost confidence.  She has seen her general practitioner and has been prescribed medication to deal with her distress.

21. The applicant states she is not currently in employment and is in receipt of a Centrelink pension.

The evidence of the third respondent

David Ginnelly (Managing Director)

1. Mr Ginnelly states that in 2008 when he was the Manager of Direct Care Services for the third respondent, the first and second respondents became the employer of the applicant and the other carers for David and Sandra.  The first and second respondents purchased coordination and bureau support services (which included workers' compensation matters) from the third respondent to assist them in managing the carers.

2. This also occurred with other consumers of the third respondent as a consequence of an agency restructure.

3. Employees were given the choice of remaining with the third respondent or, in the case of Sandra and David, commencing employment with the first and second respondent.

4. The first and second respondents directed the third respondent as to how they wanted services delivered to Sandra and David.

5. Part of the service provided by the third respondent related to the budgeting of funds that had been made available for the care of David and Sandra by the Disability Services Commission.

6. Mr Ginnelly states that around the end of each financial year a budget for the next year would be set in conjunction with the Coordinator and provided to the first and second respondents by the third respondent.  A review of the budget would take place every two months.

7. The first and second respondents are required to keep the expenditure for the care of David and Sandra within the budget.

8. Mr Ginnelly states that approximately six to eight carers are involved in the care of David and Sandra.

9. When questioned about the 2014 dismissal, Mr Ginnelly states he was advised that the first and second respondents were about $25,000 over budget and if that trend continued there would have been a significant deficit over the whole of the financial year.

10. Mr Ginnelly produced a report titled 'Job Profit and Loss Statement July 2013 through June 2014' which he says was produced by the Manager of Corporate Services of the third respondent in respect to the funding received by the first and second respondents for the care of David and Sandra.

11. Mr Ginnelly says that the figures produced on the report would have been audited as part of the 2013/2014 audit process of the third respondent.  The statement shows a deficit for the year of $16,700.35 after having received a grant from the third respondent of $6,500.00.

12. Mr Ginnelly states that even though he did not have any direct involvement with the first and second respondents in relation to budgetary issues, it was his understanding at the time that the deficit was caused by the need to employ additional staff on a casual basis and all the existing staff having to do extra duties to cover for the applicant's absence.  Mr Ginnelly states that casual staff are paid a wage 25% higher than the rate paid to a permanent employee.

13. Mr Ginnelly states that it was his further understanding that the decision by the first and second respondents to dismiss the applicant from her employment in March 2015 was the result of a combination of budgetary pressure and a view that the applicant could not perform the inherent requirements of the carers' position for David and Sandra.

14. Mr Ginnelly states that during this time the third respondent would have been receiving information and advice from CGU regarding the applicant and passing that information to the first and second respondents.

15. Mr Ginnelly states that the usual process, when an employee cannot work because of an injury, is to gather information from the workers' compensation insurer as to the likelihood of the employee being able to return to their position and the likely timeframe if a return is considered possible.  This information is considered together with the ongoing pressure on budgets (funding received from government cannot be increased) in the decision about whether an employee can be maintained.

16. Mr Ginnelly states that in respect to the applicant it was the view of the respondents that she had not been cleared fit to work in respect to the shoulder injury and the first and second respondents wanted to make sure that she was fit to go back to work and that there was no risk to David and Sandra.

Helen Payne (Coordinator)

1. Ms Payne states that her duties as Coordinator for the third respondent were primarily to ensure the safety of both Sandra and David.  This involved supervising the team of staff employed by the first and second respondents.

2. Ms Payne retired from her employment with the third respondent in July 2015.

3. Ms Payne states that Sandra and David require a high level of support as they are unable to perform the basic day­to­day necessary functions in life such as showering, preparing meals or organising their medication.  Sandra has arthritis, minimal movement of some limbs and other related medical conditions.  David is non­verbal with receptive understanding; Sandra has minimal verbal responses with some receptive understanding.  The tasks for their care are quite physical.

4. Ms Payne organised and attended regular meetings with the team of staff at Sandra and David's home and provided assistance to the first and second respondents with recruiting.

5. Ms Payne states that she had regular contact with the applicant.

6. Part of Ms Payne's role was to monitor Sandra and David's budget and inform the first and second respondents if there were any budgetary issues, including over­expenditure.

7. Ms Payne states that she attended the September 2014 meeting which was held at Sandra and David's home.  Sandra and David were out and the WorkFocus representative was not able to directly observe any of the duties that the applicant was required to perform.

8. Ms Payne states that at the time of the September 2014 meeting, she was aware of the 'Progress certificate of capacity' prepared by Dr Chen on 8 September 2014.

9. Ms Payne says that at the September 2014 meeting she informed the applicant and the WorkFocus representative that the requirements of the applicant's duties in her role as carer for Sandra and David included heavy lifting, undertaking domestic household chores, toileting and showering Sandra and David, and at times running after David.  Ms Payne told the WorkFocus representative that in her view Sandra and David's workplace was not conducive to a return to work trial, that there was no clerical aspect to the role and 'no such thing as light duties' (T:94; 11.08.16).

10. Ms Payne states that she would have applied occupational health and safety considerations to any person in the same situation that the applicant found herself in wishing to undertake a return to work trial.

11. Ms Payne states that in September 2014 she met with the first and second respondent to inform them that David and Sandra's budget had been overspent as a consequence of engaging casual staff members to provide the necessary coverage with the care team as well as the fact that other staff were working additional hours over and above their salaried hours.

12. Ms Payne says that the first and second respondent needed to decide what to do about the over­spending.

13. Ms Payne states that she met with the applicant in the course of the work placement at the Salvation Army.  She says that although she did not observe the applicant at that workplace, she did not imagine there would be many similarities between the work undertaken by the applicant with the Salvation Army and with the caring role of Sandra and David.

14. Ms Payne states that she did not see the applicant at work wearing a 'moon boot'.

Robyn Brandt (Human Resources Coordinator)

1. Ms Brandt states that she first became aware of the applicant's shoulder injury on 27 June 2014 when she was emailed by Pam Corrigan of CGU that Mr Geddes (confirmed by Mr Goebel) had diagnosed a massive right shoulder rotator cuff tear of longstanding.  Ms Corrigan had advised that the applicant was considering lodging a second claim in respect to the shoulder injury and that the best way to resolve this would be to settle the claim.  Ms Corrigan stated in her email:

   Monica is now 64 years of age and with the shoulder condition that she has now, I think that getting back to work will be very difficult.

2. Ms Brandt says that she informed the first and second respondent of the applicant's shoulder injury on the same day.

3. Ms Brandt states that prior to the September 2014 meeting (which she did not attend) she had been provided with Mr Carter's report of 22 August 2014 and Dr Chen's 'Progress certificate of capacity' of 8 September 2014.  She says that she formed the view that neither of those reports addressed the applicant's capacity to return to work in relation to the shoulder injury.

4. In respect to the 2014 dismissal, Ms Brandt states that in September 2014 the first and second respondents became aware that the budget for Sandra and David's care had fallen into deficit due to an increase in wages for the care team.

5. Ms Brandt says that during this time she continued to be a conduit between the first and second respondents and other relevant parties.

6. Ms Brandt states that the first and second respondents had needed to engage casual employees and required permanent staff to work overtime in order to provide appropriate care coverage for Sandra and David during the absence of the applicant.  Ms Brandt says that the rotation of employees within the care team and the employment of casual workers were not conducive to providing proper care for Sandra and David.  For this reason and for reasons of cost, the first and second respondents sought to restructure the care team.

7. Ms Brandt states that the first and second respondents instructed her that they wanted to dismiss the applicant.  The view held was that the applicant could not meet the inherent requirements of the caring role for Sandra and David.  When it was found that the 2014 dismissal could not go ahead, Ms Brandt says that the first and second respondents decided to hold off on the restructure of the care team but that the applicant would need a workplace medical prior to returning to work so that she met all the requirements of the carers' role.

8. Ms Brandt states that on 4 November 2014 she emailed the rehabilitation officer at WorkFocus advising that prior to the applicant's return to work, the first and second respondents requested that the applicant undertake a 'full medical' to confirm that she was fully fit for work given the physical demands of caring for David and Sandra and the applicant's shoulder injury.

9. Under cross­examination Ms Brandt described the medical examination the applicant was required to undertake as:

   a physio therapist taking an employee through a routine of movement, checking every facet of their skeletal position and then marking them, grading them down from good, normal or it's insufficient.  And then giving a report out usually to me and because it was the employer's asking for it, it would have gone to the [first and second respondents] saying whether the employee was able to cope going forwards in the position that she had before she went on worker's compensation.

   (T:10; 12.08.16)

10. Ms Brandt states that on 24 March 2015, the applicant provided her with further reports from Dr Chen and Mr Geddes.  She says that she formed the view that these assessments did not address the status of the applicant's shoulder injury in respect to her capacity to return to work.

11. In the time on and after 24 March 2015, Ms Brandt says that she and the applicant communicated regarding the requirement of the first and second respondent that the applicant undergo a full medical examination before allowing her to return to work (see also the evidence of the applicant).

12. Ms Brandt accepts that she did not discuss with the applicant what was meant by a 'full medical examination'.

13. Ms Brandt states that during this period the financial concerns of the first and second respondents continued as they were required to retain a casual employee to cover the applicant's shifts.

14. Ms Brandt states that the applicant continued to resist undergoing a full medical examination stating that Mr Carter had cleared her to go back to her work duties.  At the time Ms Brandt says she was informed by CGU that it had not yet received Mr Carter's report.

15. Ms Brandt states that on 31 March 2015, the first and second respondents instructed her to email the applicant a letter of dismissal.  She says that the first and second respondents communicated to her at this point in time that they could no longer afford to delay the restructure of the care team which supported Sandra and David.  In addition, the applicant's refusal to undertake a full medical examination continued to delay her return to work.

16. Ms Brandt states that it was only in the course of the EOC's investigation into the complaints that the applicant provided the first and second respondents with a copy of Mr Carter's report of 24 March 2015.  However:

    We never received the report from Mr Carter for quite a long time and in saying that, that's fine, no matter what we would have said.  It's our policy for anybody that goes off, sustaining injuries such as the employee, or regardless of that, any employee, we would send them through ­ it's our right and in our policy to send them through to a workplace medical fitness test.  They would all have to go through it.

    (T:11; 12.08.16)

17. Ms Brandt states that even if she had seen Mr Carter's report at that time, the position still would have been that the applicant needed to undergo an examination by a physiotherapist.  This is the policy for any employee who has been on workers' compensation.

1. Ms Brandt states that if the applicant had passed the assessment by the physiotherapist she would have returned to her normal duties with David and Sandra.  However, budgetary issues would have continued to impact:

   … if [the applicant] had come back in the team, no matter who was in the team then they would have restructured.  They all would have had reduced hours to make sure that it ­ [the applicant] came back into the position that she left and that it worked for everybody, but it worked on a good budgetary level.

   (T:31; 12.08.16)

2. In cross-examination Ms Brandt was referred to the WorkFocus report.  Under the heading 'capacity for work demonstrated' the report which was completed by the rehabilitation officer, states the applicant participated in a work duties plan whereby she commenced working six hours per week undertaking restricted duties.  She is said to have progressed over a 26 week period to demonstrate capacity to undertake pre­injury hours of unrestricted 'Sales Assistant/Community Carer duties'.  The report then says that on 23 March 2015, Ms Barden received a 'Final Medical Certificate' (Dr Chen) certifying her fit for pre­injury hours and duties with no further treatment required.

3. In response to that report Ms Brandt states that the job of a sales assistant is completely different to the high functioning required to care for Sandra and David.  In any case it remained the requirement of the first and second respondent that the applicant undergo further medical examination to ensure that she could meet the work requirements of caring for David and Sandra.

The submissions of the applicant

1. In his oral submission, counsel for the applicant stated that there are three issues which go to the question of whether the respondents were justified in the actions taken by them.

2. The issues are: the condition of the applicant, the alleged problems with the budget faced by the first and second respondents and the applicant's 'attitude' in declining requests for work rehabilitation and a further medical examination.

3. It is accepted by the applicant that when the 2014 dismissal occurred her foot injury and shoulder injury were still in a healing phase and that Dr Chen had only certified her as partially fit to return to work.

4. Counsel for the applicant states in respect to the 2014 dismissal:

   So if, I suppose, there hadn't been other issues with that dismissal then ­ I mean, subject to the workers comp issue, as we've heard, that was inside the 12 months, then I suppose, on medical grounds, that would have been justified.

   (T:46; 12.08.16)

5. The applicant contends that the respondents, relying on advice from CGU that her returning to work would be very difficult, had at the time of the 2014 dismissal determined that the applicant should ultimately be dismissed and this position of the respondents carried over into the 2015 dismissal.

6. The applicant submits that the problems the first and second respondents were allegedly having with the budget was belatedly brought into their case because the medical evidence showed that the applicant was fit to return to her duties caring for David and Sandra at the time of the 2015 dismissal.

7. The applicant states that evidence of the budget problems, which should be treated with caution, related only to the 2013/2014 financial year and no evidence was presented as to the state of the budget at the time of the 2015 dismissal.

8. In particular reference to the 2015 dismissal, which counsel for the applicant states '… is why we're here', it is submitted that the 12 March 2015 report of Mr Geddes and the 24 March 2015 report of Dr Carter attest to the applicant's fitness to return to her pre­injury duties (T:47; 12.08.16).

9. The applicant accepts that the report of Mr Geddes does not refer specifically to her shoulder injury but argues that in forming his opinion, Mr Geddes would have been aware of the shoulder injury.  Counsel for the applicant states:

   … it would have been completely medically reckless and medically negligent of him to certify the applicant fit for her pre­accident duties on a fulltime basis and not mention anything about the shoulder.

   (T:48; 12.08.16)

10. Although the respondents did not have a copy of Mr Carter's 24 March 2015 report at the time of the 2015 dismissal, the applicant submits that they were aware that he had undertaken a further assessment of her work capacity.  Mr Carer's report does address the shoulder injury and notes that the applicant had a full range of movement and the applicant submits he found her fully fit for her pre­injury duties in the open market.

11. As regards the applicant allegedly declining work rehabilitation offers, the applicant submits that she did have troubles with her resume at the time of the offer of a placement with Interwork and was not really given a chance to explore that option.  However she undertook a work trial with the Salvation Army at which she successfully performed physically demanding work.

12. The applicant submits that she refused the request of the respondents in March 2015 for a further medical examination because she understood the request to mean a medical examination of the type she had recently undergone with Mr Geddes and Mr Carter and that there was no need.

13. The applicant submits that the actions said to be taken by the first and second respondents were at the behest of the third respondent.

14. It is the submission of the applicant that the respondents discriminated against her because of her impairment when she was dismissed in 2015 and that at the time she was fit to resume her caring duties for David and Sandra.

The submissions of the respondents

1. The respondents dispute the applicant's contention that Mr Geddes' report of 12 March 2015 and Mr Carter's report of 24 March 2015 show that the applicant was fully fit to resume her pre­injury duties.

2. The respondents argue that the medical reports before the Tribunal are reports that arose out of the applicant's claim for workers' compensation and therefore have to do with the foot injury for which liability was accepted by CGU.  Reference to the applicant's shoulder injury stems from the question of what was its cause and whether that injury too would be subject to workers' compensation (CGU refused the applicant's claim for the shoulder injury).

3. In respect to the 2014 dismissal, the respondents submit that the June 2014 opinion of Mr Goebel, the specialist to whom the applicant was referred by Mr Geddes for the shoulder injury, was ominous with limited options for improvement.

4. Counsel for the respondents states:

   … taking account of the kind [of] duties and responsibilities which she would have in her position, that the employer couldn't, in those circumstances, risk the issues which might well arise in regard to her health and of course that of Sandra and David if she was then to be sent back to work in her previous job which is what, of course, she was determined and very keen should happen.

   (T:39; 12.08.16)

5. The respondents submit that in light of the medical assessments of the applicant's ongoing injuries and the state of the budget, it would have been irresponsible for the respondents not to take the dismissal action in 2014.

6. Despite the need to reinstate the applicant because of the provisions of the WC Act, counsel for the respondents submits that the applicant was given every opportunity for rehabilitation and a return to work in the period of six months from the 2014 dismissal to the 2015 dismissal.

7. The respondents state that the applicant did not take the opportunity to undertake a work placement with Interwork which involved work of a similar nature to that of her caring duties with David and Sandra.

8. The respondents submit that the work carried out by the applicant with the Salvation Army was not comparable to what could have been provided at Interwork.

9. The respondents submit that caring for David and Sandra is physically challenging work and it would have been irresponsible to allow the applicant to return to work without satisfactory reports.  In that regard the only people who really know what is involved in the caring role are those who have been informed by staff as to what is involved.  The respondents submit that medical practitioners are of no benefit in determining what the caring role includes.

10. The respondents contend that at the time of the 2015 dismissal there was no compelling medical report before them to satisfy them that the applicant was fit to return to her pre­injury duties.  It was therefore reasonable for the first and second respondents, as the applicant's employer, to require a full medical examination given the safety of David and Sandra could be at risk.

11. In addition, the respondents submit that at the time of the 2015 dismissal, the problems with the budget were continuing because the costs of dealing with the applicant's absence had not abated.

12. Counsel for the respondents submits that in deciding whether a person is able to fulfil the inherent requirements of a particular job, employers such as the first and second respondents are permitted to consider the risks an employee might pose to the health and safety of fellow employees and are able to take into account their business judgment when organising the workplace.

13. Given all of these circumstances, the respondents submit that it was reasonable for the first and second respondents to dismiss the applicant in March 2015.

Discussion of the issues in the case

1. The applicant bears the onus of proof in establishing her claim of discrimination.  The standard of proof is the balance of probabilities but in cases of alleged discrimination, the seriousness of the allegations requires the Tribunal to adopt the approach taken in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 when assessing the strength of the evidence: see Abela v State of Victoria [2013] FCA 832 and Edoo and Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [53] ­ [54].

2. To sustain a complaint of what is commonly called 'direct discrimination', the applicant has to show in the first place that because of her impairment, the respondents have treated her less favourably than the respondents treat, or would treat, a person without her impairment in the same circumstances, or circumstances that are not materially different (s 66A(1) of the EO Act).  The other elements to sustain a claim of discrimination are set out in Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 where Pritchard DCJ (as her Honour then was) summarised the elements of a successful claim under s 66A(1) of the EO Act. Her Honour's observations have been frequently cited in the Tribunal. Her Honour said, at [32], that the applicant must show that:

   …

   a)[she] suffered from an impairment;

   b)the [respondents] treated [her] less favourably than in the same circumstances or in circumstances that are not materially different, the [respondents] treats or would treat a person without such an impairment; and

   c)[she] was treated less favourably on the basis of that impairment - that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;

   •it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct - it is enough if it is one of the grounds for the conduct;

   •proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.

   See Williams and Commissioner of Police [2005] WASAT 349 at [35] ­ [38] and the cases cited therein, and see also s 5 of the EO Act.

   See also Williams and Commissioner of Police [2005] WASAT 349 at [35] ­ [38] and the cases cited therein, and see also Edoo at [78] - [80].

3. In Edoo at [160] - [162] (internal citations omitted), the Tribunal said:

   [An applicant] must prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances … The expression 'less favourably' in s 36 of the EO Act [s 66A in this case] bears its ordinary meaning.  It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …

   To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …

   To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …

   It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated.  It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.

4. It is a submission of the respondents that the exceptions stated in s 66Q(1)(a) of the EO Act apply in this case.

5. It is common ground that the applicant had an impairment for the purposes of the EO Act during the relevant time.  The impairment was her foot injury and her shoulder injury.

6. Other than in the applicant's SIFC, the question of the appropriate comparator was not further addressed by the applicant or the respondents.  I infer that the characterisation of the comparator by the applicant is accepted by the respondents.

7. I am satisfied that the comparator in this case is a person without the applicant's impairment who had been absent from work for the same time (for a valid reason and with the consent of the employer) and who was able to return to work on a graduated basis.

8. By claiming that the first and second respondents acted reasonably in the decisions they made in respect of the applicant's employment and by seeking to rely upon the exception in s 66Q(1)(a) of the EO Act, the respondents cannot argue that the applicant's impairment was not a ground for the decisions that culminated in the 2014 and 2015 dismissals.

9. As already mentioned, the applicant did not pursue the complaints set out in her SIFC in its entirety.  The applicant seemed to accept that the medical information available at the time of the 2014 dismissal could justify that decision of the first and second respondents (only subsequently reversed it seems because of the operation of the WC Act).

10. The primary case of the applicant is that she suffered unlawful discrimination in the 2015 dismissal pursuant to s 66B(2)(c) of the EO Act.

11. I will therefore direct my primary attention to that claim.

12. I am satisfied that the applicant has been subject to discrimination pursuant to s 66A(1) of the EO Act.

13. The evidence is clear.  The respondents held the view at the time of the 2015 dismissal that they had insufficient information to satisfy them that the applicant's impairment had resolved to the extent she could return to work.  Budget problems exacerbated the situation and likely contributed to the timing of the decision of the first and second respondents, acting as they apparently did on the advice of the third respondent.

14. Because of her impairment, the applicant was treated less favourably than the comparator, who more likely than not would have returned to work over a period of time.

15. The question is whether the first and second respondents were justified in dismissing the applicant on the basis of the exception available under s 66Q(1)(a) of the EO Act.

16. The onus of proving the exception lies upon the respondents: s 123 of the EO Act.

17. There are a number of elements to determining whether the first and second respondents should be given the benefit of the exception in s 66Q(1)(a) and be 'cleansed of fault' (Pullin J in Airflite Pty Ltd v Goyal [2003] WASCA 45 at [26]) (Airflite) citing Samuels JA in Jamal v Department of Health (1988) 14 NSWLR 252).

18. The Tribunal must find whether the first and second respondents as the applicant's employer, concluded that the applicant, because of her impairment, would be unable to carry out the work reasonably required to be performed in the course of her employment caring for Sandra and David.

19. As Pullin J said in Airflite at [34] ­ [35]:

    [T]he first task the Tribunal must carry out is to find out what decision was reached by the employer. The conclusion under consideration will, of course, be 'subjective' in the sense that it is the decision reached as a result of the application of the thought process of the employer. If the Tribunal concludes that the employer did not reach the conclusion referred to, then the Tribunal need go no further. The exception in s 66Q(1) will not apply.

    If … the employer did 'conclude' … that the person with the impairment, because of the impairment, would be unable to carry out the work, then other matters have to be considered … the employer has to show something about the process leading to the conclusion.  The employer must prove it took steps to obtain relevant and necessary information, and that the grounds relied on to reach the conclusion were reasonable for the employer to rely on.

20. The first and second respondents did not give evidence at the hearing.  The question is, am I able to infer from the evidence of the third respondent what conclusion was reached by the first and second respondents.

21. The only available documentary evidence from the first and second respondents, the letter of dismissal dated 30 March 2015, is not definitive.  In that letter the first and second respondents' state that the dismissal of the applicant was due to a 're­structuring of the team that looks after Sandra and David'.

22. In her SIFC at paragraph 55, the applicant contends that the third respondent 'instructed and aided' the first and second respondents to carry out the alleged discriminatory acts.

23. Counsel for the applicant submits that the first and second respondents acted at the behest of the third respondents.

24. It is Ms Brandt's evidence that she (on behalf of the thirds respondent) was the conduit between the first and second respondents and the applicant.  Ms Payne says the same.

25. I accept that the third respondent was effectively the 'mouthpiece' for the first and second respondents in dealings with the applicant.  That was part of the service purchased by the first and second respondents from the third respondent. I am therefore able to find on the evidence that the first and second respondents concluded that at the time of the 2015 dismissal (and also at the time of the 2014 dismissal) the applicant was unable to do the work reasonably required to care for Sandra and David.  They wanted further evidence of her work capacity.

26. The 'other matters' referred to by Pullin J in Airflite were considered by the Tribunal in Van Der Kooij and Fire and Emergency Services Authority of Western Australia [2009] WASAT 221 (Van der Kooij) at [341] ­ [344]. It is helpful to quote these paragraphs in full.

    Section 66Q sets out a two­stage process:

    (1)the taking of all reasonable steps to obtain relevant and necessary information concerning the impairment that it is reasonable for the employer to rely on; and

    (2)to reasonably conclude from (1) that [the applicant] would be unable to carry out work reasonably required to be performed in the course of employment.

    X v Commonwealth of Australia (1999) 200 CLR 177 (X) is authority for the proposition that the inherent requirements of a particular job (or under s 66Q(1)(a) of the EO Act, 'work reasonably required to be performed'), is not confined to the physical ability or skill of the employee to perform the tasks of the job but also requires the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees; see X at 181 [11] and at 187 ­ 188 [31] to [33] per McHugh J and at 208 and 210 [103] and [109] per Gummow and Hayne JJ

    In determining whether the employee poses such risk, the degree of risk and the consequences of it being realised must be considered: see X at 190 - 191 [41] to [43] per McHugh J and at 210 [109] per Gummow and Hayne JJ.

    The X case is also authority for the proposition that appropriate recognition must be given to the business judgment of the employer in organising its undertaking and in regarding a particular requirement as essential to the particular employment, unless the employment is organised on a basis which impermissibly discriminates against the employee: see Qantas Airways Limited vChristie (1998) 193 CLR 280.

1. The reference to X v Commonwealth of Australia (1999) 200 CLR 177 in Van Der Kooij can be expanded with relevance in the case before the Tribunal.

2. For example, in discussing the inherent requirement of a particular job, Gummow and Hayne JJ at [103] refer to consideration of the dangers to which the employee may expose 'others'.

3. In citing Qantas Airways Ltd v Christie (1998) 193 CLR 280, McHugh J at [33] states:

   It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment.  That is because employment is not a mere physical activity in which the employee participates as an automaton.  It takes place in a social, legal and economic context.  Unstated, but legitimate, employment requirements may stem from this context.  It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

4. It seems to me that the events in March 2015 were unfortunately characterised by indifferent communication between the applicant and respondents and the taking of fixed positions regarding the employment status of the applicant.

5. Despite this, I am satisfied the first and second respondents had a legitimate concern about the extent to which the applicant had recovered from the shoulder injury and how that might impact on caring for David and Sandra in a safe manner.

6. I am also satisfied that the first and second respondents were in the position at the time of the 2015 dismissal (and also during the 2014 dismissal), of having to decide how to organise the care for David and Sandra in a difficult financial situation.

7. I accept the submission of the respondents that the medical reports were generated to deal with the workers' compensation claim regarding the foot injury and whether the shoulder injury also warranted a claim for compensation.

8. It is the case that in the material before the Tribunal, the upper limb specialist to which the applicant was referred was Mr Goebel.  The applicant was referred to Mr Goebel by Mr Geddes who first investigated the shoulder injury.

9. In June 2014, Mr Goebel was quite pessimistic about the prospect of the applicant's full recovery from the shoulder injury noting that the applicant was 'so disabled she could not work properly'.

10. In his final report dated 12 March 2015, Mr Geddes makes no reference to the shoulder injury and I am satisfied that his assessment of the applicant's fitness to work only concerns the foot injury which he initially had been asked to treat by CGU.

11. At the time of the 2015 dismissal, the respondents did not have Mr Carter's report of 24 March 2015.  In an earlier report of 22 August 2014, in responding to a question posed by Ms Corrigan of CGU, Mr Carter does not contest the assertion that he is not an 'upper limb specialist' and makes reference to the applicant seeing other specialists concerning the question of what brought on the symptoms of the shoulder injury.

12. However in the report of 22 August 2014, Mr Carter states that he 'briefly examined' the applicant's shoulder and notes that it remained symptomatic, including tenderness over the rotator cuff and anterior shoulder joint.

13. The circumstances in which all this was occurring was the need for Sandra and David to have the appropriate 24 hour care and supervision with a fixed level of funding made available through the Disability Services Commission.

14. I accept that because of their severe disabilities, there is a significant physical component in the care of David and Sandra.  I also accept that should a carer be physically compromised in being able to consistently lift or otherwise manoeuvre David and Sandra in their daily activities in the home or in the community, then the outcome could be very serious for their physical wellbeing and safety.

15. The applicant submits that the respondents should have waited for Mr Carter's report of 24 March 2015 before requiring her to undergo further assessment and before making a decision about her employment.

16. The question that arises from this submission is whether the first and second respondents took all reasonable steps to obtain relevant and necessary information concerning the applicant's impairment as required by s 66Q(1) of the EO Act.

17. The evidence of Ms Brandt of the third respondent is that whatever the opinion of Mr Carter, the first and second respondent would have required the applicant to undergo a further assessment.

18. Although somewhat unyielding in its tone, I accept the underlying premise for the following reasons.  At the time of the 2015 dismissal the applicant's shoulder injury had not been definitively assessed because it had not been accepted as a workers' compensation claim and it had already been acknowledged that Mr Carter is not an upper limb specialist.

19. A hindsight reading of Mr Carter's report of 24 March 2016 supports the action taken by the first and second respondent to require the applicant to have a further assessment.  Mr Carter speaks only of a 'cursory examination of the shoulder' and relies solely on the information provided by the applicant as to what her care duties with Sandra and David entail and the outcome of the work experience with the Salvation Army.

20. When I consider all the evidence I am satisfied that the first and second respondents took all reasonable steps to obtain the relevant and necessary information concerning the applicant's impairment in the context of the need to ensure the safety of David and Sandra.

21. I find that it was reasonable for the first and second respondents on the information available to them at the time of the 2015 dismissal (and 2014 dismissal) to conclude that the applicant was unable to carry out the work reasonably required to undertake the physically demanding caring role for David and Sandra.

22. For the sake of completeness and although not pursed by the applicant at the hearing, if the requirement to undergo a further assessment in the course of the 2015 dismissal can be considered a term or condition of employment pursuant to s 66B(2)(a) of the EO Act, then consistent with my finding on the 2015 dismissal, I am satisfied that that term or condition was reasonable in the circumstances.

23. Given my findings in respect to the first and second respondents, there is no need for me to consider the complaint by the applicant against the third respondent pursuant to s 160 of the EO Act.

24. The applicant's complaints are dismissed.

Order

For the reasons given, the Tribunal makes the following order:

1.The complaints in proceedings EOA 17/2016, Monika Barndon and Michelina Field, Leslie Field and My Place Foundation Inc. are dismissed.

I certify that this and the preceding [231] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER