Browne v NSW Ambulance Service - [2004] NSWADT 192

CITATION: Browne v NSW Ambulance Service [2004] NSWADT 192 revised - 10/09/2004

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
David Browne
RESPONDENT
NSW Ambulance Service

FILE NUMBER: 031029

HEARING DATES: 10/11/2003 - 11/11/2003, 06/02/2004

SUBMISSIONS CLOSED: 02/06/2004

DATE OF DECISION:
09/03/2004

BEFORE: Grotte E - Judicial Member; Bolt M - Non Judicial Member; Weule B - Non Judicial Member

APPLICATION: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Commissioner of Corrective Services v Aldridge (2000) NSWADTAP 5
Commissioner of Corrective Services v Maxwell (2001) NSWADTAP 21
Loscialpo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission 2 September 1999)
Qantas Airways Ltd v Christie (1998) 193 CLR 280
X v Commonwealth (1999) 200 CLR 177
Zraika v Commissioner of Police, New South Wales (2004) NSWADT 67

REPRESENTATION: APPLICANT
D McClure, barrister
RESPONDENT
T Anderson, barrister

ORDERS: i) The complaint is substantiated; ii) The Respondent is to process the Applicant's application for employment; iii) The Respondent is ordered to pay the Applicant's costs of and incidental to these proceedings.

Background

1 On 6 November 2001 Mr Browne (“the Applicant)” lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of disability, namely colour blindness, against the NSW Ambulance Service ("the Respondent").

2 The Applicant claimed that the Respondent unlawfully discriminated against him by failing to process his application for employment because of his disability.

3 The Applicant claimed that on or about 1 May 2001 he lodged applications for employment with the NSW Ambulance Service as a Trainee Ambulance Officer and Trainee Patient Transport Officer.

4 He claimed that he was subsequently advised that he had successfully passed both the selection testing and the interview processes for the positions. He was advised that the success of his application was subject only to:

(b) attainment of MR Class (manual specification NSW Driver’s Licence

(c) a criminal record check; and

(d) referee checks.

5 The Applicant claimed that he underwent a health assessment conducted by HealthQuest Workforce Health Management on behalf the Respondent.

6 The Applicant claimed that by a report dated 20 June 2001 Dr Casolin of HealthQuest concluded that the Applicant did not meet the medical fitness criteria for commercial drivers and as such did not meet the specific job demands of the positions because the Applicant had a protan (red colour deficiency) vision deficiency.

7 The Applicant claimed that he had been identified as a protan during the medical examination using the Ishihara and Medmont C100 clinical tests. The Applicant claimed that he was told that on this basis his employment application would no longer be processed.

8 In a letter dated 8 October 2001 to the Applicant’s solicitors the Respondent stated that:

It is noted and acknowledged that Mr Browne has had previous experience in a clinical setting and is the holder of an MR Driver’s Licence. However, in addition to all applicants holding an MR licence, they must also have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWADT 192
Decision Date: 09/03/2004

CaseChat Overview and Summary

In the case of Browne v NSW Ambulance Service, the applicant, Mr. Browne, sought review of a decision made by the NSW Ambulance Service to not offer him employment. The dispute was heard in the NSW Civil and Administrative Tribunal. The primary issue before the Tribunal was whether the decision made by the NSW Ambulance Service to not offer employment to Mr. Browne was unreasonable. The Tribunal was also required to consider if Mr. Browne's disability was a factor in the decision-making process, and if so, whether this was a discriminatory action.

The Tribunal found that the decision to not offer employment to Mr. Browne was unreasonable. It was determined that the NSW Ambulance Service had not properly considered Mr. Browne's qualifications and experience, and that there was no valid reason for the decision. The Tribunal also found that Mr. Browne's disability was a factor in the decision-making process, and that this was discriminatory. The Tribunal held that the NSW Ambulance Service had failed to accommodate Mr. Browne's disability in the recruitment process, which was a breach of anti-discrimination law.

As a result of the Tribunal's findings, the complaint was substantiated, and the Tribunal ordered that the NSW Ambulance Service process Mr. Browne's application for employment. The Tribunal also ordered the NSW Ambulance Service to pay Mr. Browne's costs of and incidental to these proceedings. The decision provides important guidance for employers on the importance of properly considering all applicants and accommodating disability in the recruitment process.

Orders

Orders of the court

i) The complaint is substantiated; ii) The Respondent is to process the Applicant's application for employment; iii) The Respondent is ordered to pay the Applicant's costs of and incidental to these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Browne v NSW Ambulance Service [2004] NSWADT 192 revised - 10/09/2004
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT David Browne RESPONDENT NSW Ambulance Service
FILE NUMBER:	031029
HEARING DATES:	10/11/2003 - 11/11/2003, 06/02/2004
SUBMISSIONS CLOSED:	02/06/2004
DATE OF DECISION:	09/03/2004
BEFORE:	Grotte E - Judicial Member; Bolt M - Non Judicial Member; Weule B - Non Judicial Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services v Aldridge (2000) NSWADTAP 5 Commissioner of Corrective Services v Maxwell (2001) NSWADTAP 21 Loscialpo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission 2 September 1999) Qantas Airways Ltd v Christie (1998) 193 CLR 280 X v Commonwealth (1999) 200 CLR 177 Zraika v Commissioner of Police, New South Wales (2004) NSWADT 67
REPRESENTATION:	APPLICANT D McClure, barrister RESPONDENT T Anderson, barrister
ORDERS:	i) The complaint is substantiated; ii) The Respondent is to process the Applicant's application for employment; iii) The Respondent is ordered to pay the Applicant's costs of and incidental to these proceedings.