Blight v Women's & Children's Health Network - [2016] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
BLIGHT v WOMEN'S & CHILDREN'S HEALTH NETWORK
[2016] SAEOT 3
Judgment of His Honour Judge Costello, Member Mr R Altman and Member Ms H Jasinski
3 May 2016
HUMAN RIGHTS - DISCRIMINATION
Complaint issued pursuant to s 93 of the Equal Opportunity Act 1984 against Women's and Children's Health Network (WCHN) alleging unlawful discrimination on the grounds of disability, sex and requirement for a driver's licence - complainant alleged discrimination in 2011-2013 during her training for admission to Fellowship of Royal Australian College of Physicians as a Consultant Paediatrician.
HELD: Complainant has not demonstrated that WCHN unlawfully discriminated against her - Complaint dismissed.
Equal Opportunity Act 1984 ss, 6, 29, 30, 66, 67, 93; Health Care Act 2008 , referred to.
Rodgers v Revenue SA, Department of Treasury and Finance [2014] SASCFC 2, considered.

BLIGHT v WOMEN'S & CHILDREN'S HEALTH NETWORK
[2016] SAEOT 3
Introduction

This is a Complaint instituted by the complainant, Dr Blight, pursuant to s 93 of the Equal Opportunity Act 1984 (‘the Act’) against the Women’s and Children’s Health Network (‘WCHN’) alleging discrimination on the grounds of disability and sex.[1]
[1] Although Dr Blight’s Complaint asserted discrimination on the grounds of sex, this ground was not, in any material sense, pursued during the hearing.
In her Complaint form, filed on 28 January 2014, Dr Blight alleged that she:
... was discriminated against by staff of SA Health (some were also members of the Royal Australasian College of Physicians) in my progression through training and in my employment in General Paediatrics, from 2011 to January 29 2013 in the Department of General Medicine at the Women’s and Children’s Hospital. Further discrimination related to my diagnosis of epilepsy has continued by staff of SA Health, most recently in November 2013. My progression through my training program in General Paediatrics stalled after I disclosed my diagnosis of epilepsy in 2011 to staff in the Department of General Medicine at Women’s and Children’s Hospital. Further, in November 2012 my progression was further stalled at a time when another colleague in the same department told me it was ‘Because it’s a Boys’ Club’.
Background to the Complaint
The respondent is an incorporated body, pursuant to the provisions of the Health Care Act 2008, known as WCHN Incorporated. The WCHN administers the Women’s and Children’s Hospital (‘WCH’) and state wide community based health services for women, young people and children in South Australia.
Dr Blight was employed by the Chief Executive, Department of Health in various training capacities with the respondent from 25 January 2006 to 29 January 2013 under the provisions of the Health Care Act 2008.
The complainant commenced her basic training in paediatrics with the respondent in January 2006 and undertook advanced training in general paediatrics from February 2009 until January 2013.
In July 2011 Dr Blight suffered an episode of unconscious collapse which was subsequently diagnosed as Temporal Lobe Epilepsy (TLE). Dr Blight consulted a neurologist who treated her on an ‘informal’ or gratuitous basis. Despite her diagnosis Dr Blight continued her training, which training included the submission of a final written research project.
Dr Blight’s research project was not ‘passed’ in 2011. She was required to resubmit the project twice in late 2012 before it was awarded a ‘pass’.
Throughout the course of her training Dr Blight did not hold a driver’s licence and as a consequence did not drive a motor vehicle during her employment with the WCHN.
In early 2013 the complainant was awarded a Fellowship of the Royal Australasian College of Physicians (‘RACP’) which entitled her to practice as a consultant in general paediatrics, either in a hospital or in private practice.
Prior to being awarded her Fellowship, in October 2012, the complainant was offered a further 12 month contract as a Paediatric Advanced Trainee/Registrar at WCHN for the period 30 January 2013 to 2 February 2014 which she ultimately declined. The complainant’s contract of employment expired on 29 January 2013 and the complainant ceased to be an employee of the respondent from this date.[2]
[2] It was part of the complainant’s case that she was constructively dismissed by WCHN in 2013. For reasons we discuss later, we reject this submission as having any validity either in fact or law.
Finally, as we indicated earlier, on or about 28 January 2014 the complainant made a Complaint to the Commissioner for Equal Opportunity alleging discrimination on the grounds of disability and sex during her progression through training and in her employment at WCHN from 2011 to 29 January 2013.
Prior to discussing the issues arising in this Complaint, it is convenient to set out the statutory framework pursuant to which they are to be considered.
The Statutory Scheme
Section 93 of the Act relevantly provides:
93—Making of complaints
(1) A complaint alleging that a person has acted in contravention of this Act may be made—
(a)by a person aggrieved by the act;
...
Section 29 of the Act relevantly provides:
29—Criteria for discrimination on ground of sex, chosen gender or sexuality
(2) For the purposes of this Act, a person discriminates on the ground of sex—
(a)if he or she treats another unfavourably because of the other's sex; or
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i) the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the other's sex; and
(ii) the requirement is not reasonable in the circumstances of the case; or
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex; or
(d)if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
...
Section 30 of the Act relevantly provides:
30—Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of sex, chosen gender or sexuality—
(a)in determining, or in the course of determining, who should be offered employment; or
(b)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 sex, chosen gender or sexuality—
(a)in the terms or conditions of employment; or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to other detriment.
Section 67 of the Act relevantly provides:
67—Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of disability—
(a)in determining, or in the course of determining, who should be offered employment; or
(b)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 disability—
(a)in the terms or conditions of employment; or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to other detriment.
Section 66 of the Act relevantly provides:
66—Criteria for establishing discrimination on ground of disability
For the purposes of this Act, a person discriminates on the ground of disability—
(a)if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and
(ii) the requirement is not reasonable in the circumstances of the case ...
Section 6 of the Act relevantly provides:
6—Interpretative provisions
...
(3) For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
The Hearing
Dr Blight gave evidence in the complainant’s case. She did not adduce any other oral evidence. In its case WCHN tendered three volumes of documents and adduced oral evidence from the following witnesses, in addition to tendering their individual written statements:
Dr David Baulderstone:       A Staff Specialist General Paediatrician employed by WCHN
Dr Phillip Egan:  A permanent, part-time Consultant Paediatrician employed by WCHN
Dr David Thomas:                Head of General Medicine and Senior Consultant in Paediatric Medicine employed by WCHN
Ms Stacey McPherson:       Manager of the Trainee Medical Officer Unit at WCHN
Dr Blight
It is unnecessary in this case for us to rehearse, in any particular detail, the various instances of discrimination or unfavourable treatment asserted by Dr Blight. It will suffice to note that Dr Blight complained of unfavourable treatment because of her disability, namely TLE and by reason of her not having had a driver’s licence.
The unfavourable treatment may be identified as comprising:
Disability
1.      A deliberate failure by WCHN to take action in relation to her TLE in the form of support or rehabilitation motivated by an alleged desire, on its part, to avoid having to pay compensation.[3]
[3]    T188-189.
2.      Action taken by Dr Baulderstone and Dr Thomas to alter, or cause to be altered, the results of Dr Blight’s research project, and thereby delay her otherwise satisfactory completion of the project, and delay her progression to Fellowship.[4]
[4]    T170.
3.      The making of inappropriate or adverse comments with respect to her weight by a Dr Tapp and with respect to her health by Dr Egan.
In her evidence Dr Blight said that she was surprised that Dr Egan made these comments in front of a peer who was, to her knowledge, unaware of her health problems.
She suggested that there may have been a possible link between some medical practitioners referring to her health problems and her progression to Fellowship being delayed by other doctors.
4.      Different treatment in the employment process.
Specifically Dr Blight asserted that two other doctors (Drs Agrawal and Scholar) were permitted to apply for and were subsequently awarded consultant positions prior to being awarded Fellowship status. Dr Blight said that, in contrast, she was denied the same opportunity and that the reasons proferred to her for denying her such an opportunity included the fact that she had not obtained her Fellowship.
5.      Failure by WCHN to address workplace concerns raised by Dr Blight. Dr Blight asserted that although she raised concerns about the behaviour of Dr Agrawal towards her, and the effect of that behaviour on her, neither Dr Thomas nor Dr Baulderstone provided her with an appropriate response.
6.      Medical and other personnel at WCHN taking action with the Australian Health Practitioner Regulation Agency (‘AHPRA’) with respect to Dr Blight’s health and suitability to practice as a doctor.
Absence of a Driver’s Licence
In addition to the aforementioned areas of unfavourable treatment, Dr Blight asserted that WCHN discriminated against her on the basis of her inability to drive. We have approached this aspect of her Complaint on the basis that it is asserted that the ability to drive a motor vehicle was a ‘particular requirement’ under the Act[5] in relation to which she was treated unfavourably when compared to persons without her disability.
In her evidence Dr Blight referred to a comment allegedly made by Dr Thomas, namely ‘how can you expect to be a specialist when you don’t drive a car’ and by a Dr White (in an assessment following a Paediatric Registrar Placement of Dr Blight in 2009), who expressed the view that reliance on public transport was a ‘weakness’.
[5] See s 66(b).
In considering whether or not WCHN has been shown to have discriminated against Dr Blight on the grounds of her disability or in relation to the requirement that she be able to drive a motor vehicle, we propose to deal with each of her concerns separately.
Discussion
Lack of Support after her TLE
As we observed earlier Dr Blight gave evidence that after she suffered her workplace injury (the unconscious collapse in 2011), WCHN unlawfully discriminated against her in omitting to provide support to her. In particular, she said that WCHN deliberately omitted to notify its insurer of her workplace injury.
At the outset, on this issue, we note that, in cross-examination, Dr Blight conceded that she didn’t know why it was that WCHN failed to make the notification to its insurer.[6] Nevertheless, Dr Blight proceeded to proffer an opinion that upon the termination of her employment in 2013, WCHN should have had details on its worker’s compensation file of the circumstances of her unconscious collapse.[7]
[6] T186 l23.
[7] T187 l16.
Despite the fact that she didn’t know why WCHN had not notified its insurer, at least in some of her answers she sought to ascribe its motive for so doing as one designed to obviate the need for WCHN to pay compensation. Apart from Dr Blight’s speculation, there is no evidence before us to support an allegation that WCHN deliberately omitted to notify its insurer to avoid such a liability.
Furthermore, Dr Blight accepted that she did not make a claim for worker’s compensation in relation to her unconscious collapse prior to ceasing employment in 2013.[8]
[8] T188 ll23-31.
On this issue we have also had regard to, and taken into account, the evidence of Dr Egan[9] who said that Dr Blight informed him of the episode of unconscious collapse on the day it occurred. Dr Egan said that he arranged for her to be seen by his neurological colleague, Dr Kneebone. We accept the thrust of Dr Egan’s evidence that he did so out of care and concern for a fellow practitioner and that at the time he never considered the episode to constitute a workplace injury. In addition, we accept his evidence that at no time did he view the episode as in any way being an impediment to her continuing and/or completing her training for her Fellowship.
[9] T335-337.
In the circumstances, we are not persuaded that there was an obligation under the Act on employees at WCHN to take any particular action with respect to this episode.
In any event, we are not satisfied that either the failure to notify its insurer or the actions taken upon her behalf by Dr Egan constituted unfavourable treatment. Even if it did, we are equally satisfied that Dr Blight has not established a connection between such alleged unfavourable treatment and the TLE.
On this issue, we find that WCHN did not treat Dr Blight unfavourably on the ground of her disability and did not engage in unlawful discrimination against her.
Alteration of Project Result – Delay in Project Completion
On this issue Dr Blight gave evidence that on 15 December 2011 she was informed by a person from the RACP (in a telephone call) that she had achieved a ‘pass’ standard on her final research project. Dr Blight then advised both Dr Thomas and Dr Baulderstone of this fact. A little less than an hour later she was advised that a mistake had occurred, that her result was in fact a ‘non-pass’ and that she would now be required to rewrite the project.
In her evidence[10] Dr Blight accepted that although it was possible that the information telling her that she had passed may have been the result of a mistake, she preferred to take the view that there had been a conscious decision to change her result by some person at the RACP and that such a decision had been made at the request of a doctor or doctors at WCHN.
[10] T242-243.
Apart from a comment to her which Dr Blight attributed to Dr Baulderstone and made some six months later, that the project results were not actually considered in November 2011, there is no other evidence to even suggest that any person employed by WCHN altered her pass result or caused others to alter her result.
Dr Baulderstone gave evidence. He told us that between 2008-2014 he was a member of the Specialist Advisory Committee (‘SAC’) which manages all trainees around Australia in the final period of their training.
He said that the SAC assesses the projects of all trainees each year. Dr Baulderstone said that there had been an SAC meeting to assess the projects in November 2011.[11]
[11] T259 l20.
He said that the practice of the Committee was for two of its members to independently (of the rest of the Committee and each other) assess each project and report the results of their assessments to the Committee for endorsement. In the event of a disagreement between the two a third member would be asked to assess the project. He stressed the role of the Committee was only to endorse recommendations and did not extend to substituting its own assessment.
In his capacity as a member of the SAC Dr Baulderstone assessed the projects of various interstate trainees, but in relation to all trainees from South Australia (including Dr Blight), he declared a conflict of interest and withdrew from any involvement in their assessment.
He said that he had discussed Dr Blight’s 2011 project result with her in 2012, but did not recall saying the project was not ever considered because, as far as he was concerned, it (along with all the other projects) was considered but given a non-pass. On this issue we prefer the evidence of Dr Baulderstone. We accept that she did have a discussion with Dr Baulderstone in relation to her project in mid 2012 but find that Dr Blight was mistaken when she said that he had told her that no projects were discussed in November 2011.
On this issue we specifically accept his evidence that in November 2011:[12]
·       He did not take part in a discussion with other members of the SAC concerning Dr Blight or her project;
·       He did not discuss her health or unconscious collapse with members of SAC;
·       Dr Blight’s project was considered and given a non-pass;
·       He did not learn of the outcome of Dr Blight’s project until after the meeting and assessment process had been completed; and
·       He never sought to intervene in the RACP’s processes to affect the result of Dr Blight’s project.
[12] T261-263.
We are satisfied on this issue that the WCHN did not take action in any way to alter Dr Blight’s project result.
Action to Delay Completion of the Project Result
Dr Blight suggested that evidence to support her assertion that Dr Thomas and Dr Baulderstone deliberately delayed the completion of her project result, is to be found in the fact that although, in December 2011, she was working in the Child Protection and Paediatric Emergency Department, her name was recorded on an internal departmental version of the General Medicine Department roster at a time when Dr Thomas was in charge of that department. We were invited to draw the inference that in some way this indicated that Dr Thomas was ‘keeping an eye’ on Dr Blight.

Dr Thomas proffered an opinion that the roster is likely to have recorded Dr Blight’s name because it had been prepared by one of his secretarial staff (not by him) and was probably done in the knowledge and expectation that Dr Blight was going to be working in his department in the New Year.[13]
[13] T383.
We accept Dr Thomas’ explanation.
There is no evidence to suggest that either Dr Thomas or Dr Baulderstone were ‘keeping an eye’ on Dr Blight as part of an effort to delay her progress to Fellowship.
It was also suggested by Dr Blight that she was not given the appropriate level of support throughout the year in 2012, in order to permit her to do the ‘rewrite’ of her project.
Dr Thomas said that his role in terms of support could only extend to providing assistance in terms of things such as editing. He said a number of people, including a Dr Pearson, offered support in that regard.[14] Dr Baulderstone expressed the view, which we accept, that the workload of a person in Dr Blight’s position was such that a project rewrite could be accommodated and that if a trainee needed extra time to do a rewrite, that would always be accommodated.
[14] T380.
We also accept his evidence that before an opportunity was extended to Dr Blight to submit her project for a third time via a ‘second rewrite’, Dr Baulderstone requested the SAC to give Dr Blight ‘as much detailed information as you can on how to rewrite the project’.[15] There is no reason to doubt his evidence that he did so. It was not incumbent upon Dr Baulderstone to do so and the fact that he did seems to us to be at odds with someone attempting to delay her progress.
[15] T277.
Dr Blight’s assertion that either Dr Thomas or Dr Baulderstone or indeed anyone else at WCHN took action to inappropriately delay her progress to Fellowship is not supported by the evidence.
On this issue, we find that WCHN did not treat Dr Blight unfavourably on the ground of her disability and did not engage in unlawful discrimination against her.
Adverse Comments
Dr Blight asserted that Drs Egan and Tapp each made adverse comments with respect to her weight and/or health and did so without making appropriate provision for her privacy.
In her evidence Dr Blight conceded that e.g. Dr Egan’s comments may have been made out of concern for her but said that they should have been made in private.[16] She went on to suggest that Dr Egan’s comment could indicate that he may have communicated details of her unconscious collapse to the SAC prior to its November meeting which, in turn, led to her project being ‘not passed’.[17] This was no more than speculation on her part. There is no evidence to support it. Furthermore, as we have said, Dr Egan did not, at any time, consider her TLE as an impediment to her progression to Fellowship.[18]
[16] T181.
[17] T182.
[18] T337.
We are not satisfied, even if his comments were made in front of another peer, that they constitute actionable discrimination on the grounds of her disability.
We would regard Dr Tapp’s comments (even if also made other than in private) to the effect that ‘you’ve lost too much weight and you are far too thin. Is there something troubling you? Are they working you too hard?’ in the same category. We would view these comments as a clear expression of concern for a fellow medical colleague and as falling far short of actionable discrimination.
In view of these conclusions, it is, strictly speaking, unnecessary for us to determine (but we would also doubt), that the comments made by either doctor were made in the course of their employment, such as to render WCHN vicariously liable under the Act.[19]
[19] Rodgers v Revenue SA, Department of Treasury and Finance [2014] SASCFC 2.
On this issue, we find that WCHN did not treat Dr Blight unfavourably on the ground of her disability and did not engage in unlawful discrimination against her.
Differential Treatment in the Employment Process
Dr Blight pointed to positions to which each of Drs Agrawal and Scholar were appointed prior to their admission as Fellows whereas she had failed to obtain positions in what she said were similar circumstances.
Dr Thomas said that, in the case of Dr Agrawal, he was appointed to a short-term consultant position which was conditional upon his appointment as a Fellow.[20]
[20] T361.
He said that Dr Blight was not precluded from making similar applications and did in fact apply for a consultant position ahead of her appointment to Fellowship but that she was not short listed by the selection panel.[21]
[21] T362.
He said that Dr Agrawal was preferred over Dr Blight, amongst others, in part because he presented as a better candidate and because the selection panel had more confidence that he would obtain his Fellowship given that his project had passed.[22]
[22] T388.
He also said that at the time of the decision to appoint Dr Agrawal he was unaware of Dr Blight’s disability and that accordingly, it could not have and did not play any part in the selection process.[23]
[23] T388 and 390.
In the case of Dr Scholar he was considered for a position but only (unlike Dr Blight) after he had satisfied all the pre-requirements including the satisfactory completion of his final project.[24] Thereafter Dr Scholar obtained his Fellowship and 10 days later took up the post of Consultant.[25]
[24] Exhibit C1 vol 1 pp 273-274.
[25] Exhibit R4.
Finally, and in any event, we were made aware that Dr Blight was actively considered for another consultant position by WCHN prior to being admitted to Fellowship. She was ultimately not appointed to that position, not because of her disability, but due to the fact that a decision was made not to go ahead with what would have been a temporary appointment.[26]
[26] Exhibit R6.
On this issue we find that WCHN did not treat Dr Blight unfavourably on the grounds of her disability and did not engage in unlawful discrimination against her.
Failure to Address Workplace Concerns
Dr Blight asserted that she raised concerns with Drs Baulderstone and Thomas about her working relationship with Dr Agrawal and that these concerns were not appropriate addressed.
It is tolerably clear that her working relationship with Dr Agrawal was strained and that in response to this working environment she raised her concerns with Drs Baulderstone and Thomas.
For his part, Dr Baulderstone did not recall having any detailed meetings with Dr Blight and/or Dr Agrawal to address her concerns. He said that whilst there were tensions between her and Dr Agrawal he did not view the tensions to be such that it was affecting their clinical work.[27] He also said that he could not recall Dr Blight raising her concerns with him in a formal sense although they may have been generally discussed during their car trip to Maitland.[28]
[27] T303.
[28] T304.
Dr Blight did write to Dr Thomas setting out her concerns in some detail. Dr Thomas said that in response they had a number of meetings. He said that, despite the tenor of her communications to him in September/October 2012, it remained his view that there were frequent enough occasions for her to ventilate her concerns and that, in his opinion, they had been addressed.[29]
[29] T366-368.
It is apparent to us from Dr Blight’s correspondence that whatever may have been Dr Thomas’ view, her concerns were not being adequately addressed.
We find that Dr Blight’s workplace concerns were not adequately addressed in 2012. Having said that, there is no evidence that the failure by Dr Thomas to take appropriate action was related to and/or based upon any disability of Dr Blight.
On this issue, we find that WCHN did not treat Dr Blight unfavourably on the ground of her disability and did not engage in unlawful discrimination against her.
Constructive Dismissal
Dr Blight asserted that WCHN discriminated against her by, in effect, constructively dismissing her, which ‘dismissal’ in Dr Blight’s submission culminated in WCHN (in the person of Ms McPherson) pressuring her to execute an ‘Exit Advice Form’.
In our view, there is no doubt that Dr Blight’s employment came to an end in late January 2013 when the contract, which she had executed 12 months earlier, expired. In our view, as a matter of law, thereafter no employment relationship existed between WCHN and Dr Blight.
Furthermore, and in any event, we are satisfied that Ms McPherson was neither capable of, nor did she, enter into a new contract in October 2012 (or at any other time) with Dr Blight. We are equally satisfied that the actions of Ms McPherson in seeking to finalise Dr Blight’s financial entitlements were perfectly proper.
We reject any suggestion that WCHN, in finalising her entitlements in 2013, treated Dr Blight unfavourably on the grounds of her disability and/or engaged in unlawful discrimination against her.
Withholding Professional References and Incitement of AHPRA
Dr Egan gave evidence as to why he had decided to change his mind and decline to provide Dr Blight with a professional reference.[30] His reasons for so doing were quite understandable, namely a breakdown in the relationship between candidate and referee. We are satisfied that, in giving that evidence, Dr Egan was being entirely frank and honest. There can be no suggestion that there was anything untoward in his decision to do so.
[30] T339-344.
WCHN, in the guise of Dr Egan, did not treat Dr Blight unfavourably and did not engage in unlawful discrimination against her on this basis.
On the issue of incitement of AHPRA, Dr Blight asserted that, in essence, Drs Baulderstone, Thomas and Egan had either approached AHPRA or caused others to do so in order to incite AHPRA to suspend her registration.
Dr Egan said that he had had no dealings with AHPRA in relation to Dr Blight and had not encouraged anyone else to approach AHPRA in relation to her.[31] We accept his evidence on this issue.
[31] T338.
Dr Thomas denied having any involvement with AHPRA in relation to Dr Blight or encouraging anyone else to do so.[32] We accept his evidence on this issue.
[32] T358.
Dr Baulderstone provided a statement to AHPRA with respect to Dr Blight in 2014. He said that he had provided the statement at the request of AHPRA and that it was AHPRA who approached him. He said that the statement taken from him involved a format of him responding to questions proffered by AHPRA’s investigator.[33] So understood, we accept that it was AHPRA not Dr Baulderstone who initiated and controlled the nature of information conveyed to it.
[33] T266.
Dr Baulderstone also said that he had not encouraged anyone else to make notifications to AHPRA.[34] We accept his evidence on this issue.
[34] T267.
Ms McPherson gave evidence that she too provided a statement to AHPRA at the request of AHPRA. The statement was taken in a similar fashion to that of Dr Baulderstone. She said that apart from cooperating with AHPRA’s request, she did not encourage anyone else to approach AHPRA in relation to Dr Blight.[35] We accept Ms McPherson’s evidence on this issue. We are also satisfied that no-one employed by WCHN initiated an approach to AHPRA concerning Dr Blight.
[35] T395.
On this issue, we find that WCHN did not treat Dr Blight unfavourably on the ground of her disability and did not engage in unlawful discrimination against her.
This then leaves the alleged requirement that Dr Blight hold a driver’s licence.
Requirement for a Driver’s Licence
It may be accepted that Dr Blight was required to complete rotations in suburban and country areas. It is also apparent that some people (e.g. Dr White) held the view that the lack of a licence was a ‘weakness’ in the sense that Dr Blight’s ability to complete her tasks was rendered more difficult for her.
However, WCHN recognised the absence of a licence and far from discriminating against her on that basis, offered to address any difficulties a lack of a licence might present, by providing her with taxi vouchers to ensure that she could attend to work as and when required.
Furthermore, WCHN made arrangements for her accommodation, during her placement in Mount Gambier, to be opposite the hospital. Far from treating her unfavourably, it seems to us that WCHN took positive steps to attempt to ameliorate any inconvenience experienced by Dr Blight by reason of her lack of a licence.
Dr Thomas does not accept that he made the comment attributed to him or, at least, not in that context. In the event that it was made, we would regard the comments of Dr Thomas as both unfortunate and unwarranted. However, if he did make such a comment, it did not translate into any discriminatory conduct. As we have said, if anything, WCHN actively attempted to overcome any difficulties Dr Blight might have faced.
Dr White’s assessment is no more than a comment at the end of a placement which assessment, as far as we can discern on the evidence, was not adopted and/or acted upon in any material sense by those charged with Dr Blight’s supervision.
Furthermore, and in any event, there is no evidence that there was any meaningful relationship between her disability and her inability to drive.
Prior to her unconscious collapse she had not obtained a driver’s licence. Thereafter, it was recommended by Dr Kneebone that she not seek to drive for six months. However, there is no suggestion that at that point in time she was in fact intending to drive.
In her evidence, Dr Blight said that she currently did not have a licence, but even then she did not suggest that this was due to her TLE.
In our view, there can be no suggestion that WCHN treated Dr Blight unfavourably upon the basis of her lack of a licence. We find, therefore, that WCHN did not unlawfully discriminate against Dr Blight on the grounds of her inability to drive.
We have considered each of these issues individually and have concluded that there has been no unlawful discrimination demonstrated. Even when the various issues, which we have identified, are considered collectively, we remain of the view that WCHN did not unlawfully discriminate against Dr Blight.
Conclusion
Dr Blight has not demonstrated that WCHN unlawfully discriminated against her and the Complaint is therefore dismissed.