Bryant v United Voice - NSW Branch

[2018] FCCA 1131

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRYANT v UNITED VOICE - NSW BRANCH [2018] FCCA 1131

Catchwords:
HUMAN RIGHTS – Application alleging contravention of the Disability Discrimination Act 1992 (Cth) – whether the applicant suffered disability discrimination contrary to the terms of the Act – whether the respondent breached the implied terms in the applicant’s employment contract – application dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth), ss.15, 21A

Applicant: REBECCA BRYANT

Respondent: UNITED VOICE - NSW BRANCH
(ABN 94 006 539 878)

File Number: SYG 1730 of 2017

Judgment of: Judge Street

Hearing date: 7 May 2018

Date of Last Submission: 7 May 2018

Delivered at: Sydney

Delivered on: 7 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr C McArdle
McArdle Legal

Counsel for the Respondent: Ms L Doust

Solicitors for the Respondent: Hall Payne Lawyers

ORDERS

1. The proceedings are dismissed

2. The applicant pay the respondent’s costs fixed in the amount of $25,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1730 of 2017

REBECCA BRYANT

Applicant

And

UNITED VOICE - NSW BRANCH
(ABN 94 006 539 878)

Respondent

REASONS FOR JUDGMENT

1. This is an application before the Court brought under the Disability Discrimination Act1992 (Cth) (“the DDA Act”) in which the applicant alleges particular conduct was engaged in by the respondent, the applicant’s employer that was the subject of indirect or direct discrimination and/or an alleged claim for breach of a good faith clause in a contract.

2. The applicant had been employed by the respondent since 2012 in the position of an organiser. The applicant ceased attending work on 9 June 2014, allegedly because of anxiety and depression and the applicant’s employment was terminated on 3 August 2016.

3. The background to the application is identified in the respondent’s submissions and I make findings as follows:

   16. The applicant commenced employment with the respondent as an organiser in July 2012.

   17. In July 2014, she went off work, initially accessed her sick leave without disclosing to the respondent the nature of her illness or her prognosis. When she exhausted her sick leave entitlements, the respondent assisted her to access an income protection insurance policy which had been secured by the respondent for the benefit of its employees.

   18. When it became apparent that the applicant’s period of absence was likely to be an extended one, the then Assistant Secretary of the branch (now Secretary), Ms Gatfield, emailed the applicant on 1 August 2014, offering assistance. The applicant did not avail herself of that offer. Ms Gatfield sent a text message to the applicant on 13 August 2014, again enquiring as to her well-being and offering to assist. She received no response.

   19. On 12 February 2016, the insurance broker advised the respondent that the applicant’s remaining entitlement under the insurance policy up until August 2016 was to be paid out. Shortly thereafter it received an email from the applicant enquiring as to the “further documentation requirements by United Voice for the period up to 7 August 2016 when I return to work”.

   20. Unbeknownst to the respondent at that time, on 30 January 2016, the applicant’s psychologist had opined as follows:

   Ms Bryant has no current capacity to return to her usual hours of duties due to the impact of her medical conditions and ongoing treatment. I believe reengagement of rehab provider in March 2016 would be appropriate.

   21. In answer to a prompt about the applicant’s prognosis, her psychologist had expressed this view:

   Difficult to give but within 6 months with additional treatment within a new role/employer.

   22. Nothing in that opinion contemplated a return by Ms Bryant to the respondent’s workplace.

   23. Upon making further enquiries of the insurance broker, the respondent was advised that the payment of the insurance was based on the information received from Mrs Bryant’s psychologist who advised that there was no expected return to work within the next 6 months. The day nominated by the applicant for her return to work was the final day of the insurance payment period.

   24. Thereafter, the respondent made further attempts to understand the nature of the applicant’s condition. The circumstances indicated there was a very real prospect that the applicant would not be in a position to return to work, and an ongoing replacement may be required. The attempts of the respondent to better understand the position were repeatedly resisted by the applicant, providing further fuel for the respondent’s concern.

   25. On 1 March 2016, the respondent made enquiries of the insurance broker with a view to obtaining the applicant’s Medical Health Management Report. The applicant refused to consent to that disclosure, and the broker declined to release the report.

   26. On 15 March 2016, the respondent wrote to the applicant, setting out its serious concerns in relation to [the applicant’s] ongoing fitness for work and [her] prospects of returning to work. The letter noted that the applicant had not allowed the insurance broker to release her doctor’s certificates to the respondent, denying it the capacity to understand her illness or injury, and thus impeding it from ensuring that it could make such a return to work safe or provide an appropriate return to work. The respondent expressed the view that on the information available to it, it did not consider the applicant was capable of returning to work to carry out the inherent requirements of the position. The respondent advised the applicant it was proposing to terminate her employment and invited the applicant to provide a response.

   27. The applicant responded to that letter by emailing the respondent on 6 April 2016. The email attached an apparently incorrectly dated report of the applicant’s general practitioner as to her fitness for work and foreshadowed the provision of a report from her psychologist. The letter also proposed a meeting involving her lawyer. The email twice stated that the applicant wished to “resolve all matters.”

   28. Nothing about that email would have put the respondent’s mind at rest as to the issues ventilated in its letter of 25 March 2016; namely, whether the applicant was in fact fit to return to work and whether it could discharge its obligation to provide a safe return to work. The proposal to meet with the applicant’s lawyers to “resolve all matters” did not suggest there was any real haste on the applicant’s part to return to the workplace. That background is important to bear in mind when the communications between the parties are considered, and when the court comes to consider, in respect of this period, who bears responsibility for the applicant’s alleged losses over this period.

   29. On 8 April 2016, the applicant provided the respondent with a certificate from Dr Jimmy Nguyen certifying the respondent as “fit to return to normal duties” from that day. It did not identify the nature of the illness said to have incapacitated her for the 22 months prior. The applicant also provided a report from Shona Cassell, Psychologist dated 7 April 2016. That report included the two somewhat contradictory propositions that the applicant was “of a fit state to commence a return to work program and is fit to return to her substantive position with United Voice”. The report neither unequivocally approves the return of the applicant to full duties without the risk of relapse, nor did it identify the manner in which a return to work program might operate.

   30. At a subsequent meeting between the applicant and her lawyer, and Ms Gatfield and Mr Boyd of the respondent on 14 April 2016, the applicant proposed a settlement of the applicant’s claims which involved a redundancy. Ms Gatfield and Mr Boyd, on the other hand, indicated that they required further information about the applicant’s condition, and were advised by the applicant and her lawyer that such information would be forthcoming.

   31. In the event, the only further material provided by the applicant were further copies of the material already provided.

   32. On 4 May 2016, the applicant’s lawyer changed tack, advising the respondent by email that the applicant would present for work on 10 May 2016. Ms Gatfield responded that very afternoon, advising that the applicant had not provided the further medical information that the respondent had sought from her.

   33. The applicant’s lawyer responded to Ms Gatfield on 6 May 2016, by email. In doing so, he forwarded to the respondent an email to him from the applicant of 5 May 2016 in which the applicant stated: “I am happy to get another doctors certificate stating that I remain fit to return to normal duties”. Nothing about that statement could logically have engendered any confidence on the part of the respondent in the medical evidence, such as it was, that was being proffered by the applicant.

   34. Otherwise, the email of 6 May 2016, simply asserted that the applicant would present for work on Tuesday 10 May 2016.

   35. That communication failed to address the request by Ms Gatfield – for the documents that had been promised in the meeting.

   36. On 11 May 2016, the respondent wrote to the applicant through her lawyer, advising that it intended to have the applicant undergo a functional assessment and to advise her availability to do so.

   37. The applicant’s lawyer responded on 23 May 2016, by again sending the same documents. That email again referred to the possibility of some other settlement, indicating that the applicant would hold off doing anything to permit that to happen. Later that day he indicated the applicant’s agreement to participate in the planned functional assessment.

   38. By letter dated 15 June 2016, the respondent wrote to the applicant’s lawyer, advising that the assessment it had arranged was by an occupational physician, and asking the applicant to provide authorities for the respondent to obtain records concerning the applicant’s medical condition from her treating practitioners, and the insurer and insurance broker. The applicant returned the authorities on 22 June 2016, but modified them, so that the authority was for the occupational physician to access the material, and not the respondent.

   39. Ms Gatfield then wrote to the applicant on 1 July 2016, giving her a direction to provide the authorities, and advising that they would only be used for the purpose of the medical assessment, and would be kept confidential.

   40. Ultimately, the applicant did not provide the requested authorities.

   41. On 19 July 2016, Ms Gatfield wrote to the applicant alleging that the applicant had failed to abide a number of lawful and reasonable directions, and raising with the applicant her conduct at a function on 20 July 2016 at which her line manager was in attendance, in making a rude gesture to the line manager.

   42. The applicant responded on 27 July 2016. Ms Gatfield considered her response, but ultimately determined to dismiss the applicant from her employment on 3 August 2016.

4. The Court has heard evidence from the applicant and her cousin. Neither the applicant, nor her cousin were impressive witnesses.

5. Dealing first with the evidence of Ms McKenzie, I regard her evidence in relation to the taking of photographs by Ms Porter-Butler to be unreliable. Ms McKenzie in evidence identified that she was making an assumption in relation to the persons depicted in the camera which Ms McKenzie alleged was used in reverse selfie mode by Ms Porter-Butler. The evidence given by Ms McKenzie in relation to where she was seated and who was around her was the subject of cross-examination. Ms McKenzie described the area in front of her as being one in which there were empty rows. A photograph was put to Ms McKenzie and Ms McKenzie suggested the photograph had been taken much later. The photograph was directly inconsistent with the evidence of Ms McKenzie.  The photograph is also inconsistent with the assertion of the events advanced by the applicant. 

6. The applicant in that regard had also given a completely different version of the events to her instructing solicitor in relation to the asserted events that occurred at the time in which the applicant had been brought to account for giving an index finger to Ms Porter-Butler during a meeting.  The applicant was a highly unimpressive witness and I do not accept the evidence as truthful.

7. The applicant’s evidence in relation to her receipt of emails and text messages lacked credibility and plausibility. The applicant’s evidence in relation to the use of her mobile was directly inconsistent with records tendered by the respondent. I found the applicant not to be a witness of truth. The applicant, in the course of her evidence said that she had decided in 2015 not to return to work with the respondent. The communication sent by the applicant in light of that state of mind reflected a calculated endeavour by the applicant to obtain the benefit of payments to her in respect of which she knew she had to meet eligibility criteria under a relevant policy and to which she knew she was not entitled.  

8. The applicant’s evidence expressly referred to the concept of her being still eligible in respect of a benefit payment. Once the applicant’s leave had run out, the applicant was informed of the benefit of the policy under the terms of the conditions of employment, and the applicant thereafter apparently saw a Dr Nguyen and a psychologist. The psychologist Ms Cassell opined in early 2016 that the applicant would be unable to return to work for a further six months. It was a result of that psychologist’s report from information provided by the applicant that the insurer decided pay out the applicant.

9. On the applicant’s evidence to this Court, at that time, the applicant had already decided not to return to work with the respondent. More concerning is the applicant, around the time of notification of the decision by the insurer to pay out the balance of the policy based on the psychologist’s report, became aware of her own treating doctor, Dr Nguyen, identifying in February 2016 that she was fit to return to work. The applicant acknowledged in the witness box she never provided that report to her insurer. I do not regard the applicant as an honest witness.  Where the applicant’s evidence advances assertions in relation to her being mocked and derided, I reject the applicant’s evidence. I do not accept the applicant was the subject of having her mobile phone cut off.  I do not accept the applicant was threatened with expulsion from membership of the respondent.

10. The applicant received ordinary and normal communications inviting her to maintain her membership. I do not accept that there were any steps taken by the respondent to delay payments to the applicant.  I do not accept that the seeking of the medical records of the applicant was other than a lawful direction from the employer in circumstances where the employer was on notice that the insurer had decided to pay out the balance of the policy on the identified assumption that the applicant was still unfit. In those circumstances, it was entirely reasonable for the respondent, and in particular Ms Gatfield, to need to obtain medical records in respect of the applicant’s fitness for work in circumstances where Ms Gatfield’s evidence was that she was concerned to ensure a safe working environment for the applicant and that the applicant had the inherent ability to be able to perform the work.

11. I do not accept that the respondent intentionally imposed any impossible deadlines on the applicant.  I find the correspondence by the respondent to the applicant was measured, reasonable and appropriate. I find the applicant failed to comply with lawful directions made by the respondent in correspondence.

12. I reject the submission of Mr McArdle, the solicitor for the applicant that it was reasonable for the applicant to object to Ms Gatfield or other senior members seeing the medical information in respect of her fitness for work in the circumstances where the claim had been made and payment had been effected by the insurer on the basis that the applicant remained unfit until August 2016. The respondent’s request for the applicant to provide the medical records was reasonable and a lawful direction.  It was the applicant who deliberately declined to comply with that request. That refusal was deliberate conduct, in the circumstances of the present case in respect of which it can be said that the termination was neither unjust, nor unreasonable. The assertion that the applicant was the subject of secret photographs without permission has no substance and is rejected. I accept the evidence of Ms Gatfield and Ms Porter-Butler, who I found to be impressive witnesses.

13. I have taken into account the submissions of the applicant both in writing and orally, as well as the submissions of the respondent and the evidence before the Court in relation to the application of the DDA Act.

14. I reject Mr McArdle’s submission that whether payment should be made under the conditions of employment was a discretionary consideration. I find clause 9.2(vii) of the United Voice National Terms and Conditions of Employment dated July 2014 was a clear term that proscribed any further top-up payment by the union in circumstances where the applicant was receiving benefits under the policy. I do not accept that there was a discretion that Ms Gatfield had or could exercise or that the executive could exercise in relation to those circumstances. Nor was there any suggestion or request for such an exercise of a discretion.

Whether the respondent breached implied terms of employment contract 

1. I reject the submission that the contract of employment included a term of fidelity and good faith as pleaded by the applicant.  Further, I find there was no conduct by the respondent that reflected any want of good faith or fidelity in the dealings with the applicant.

2. Further, I find that the contract claim on its face falls within the deed of release exclusion or clause 2.4 of the Deed of Settlement between the parties. In any event, there was no conduct that would give rise to any relief even if there was an implied term found to exist in the contract as the respondent did not engage in any conduct reflecting any such breach.

3. Insofar as it is alleged that there was a term that the respondent applicant would take reasonable steps in relation to the health, safety and welfare of the applicant, that in substance seeks to reflect an implied term, that the applicant maintain a safe place at work. On the evidence before the Court, the respondent took reasonable steps to maintain a safe place of work. I do not regard the applicant as having established any breach of an implied term in respect of the taking of all reasonable and practical steps to ensure the health, safety and welfare of the applicant at work. For the reasons already given, I have rejected the applicant’s evidence in relation to her assertions of conduct said to constitute a want of fidelity and good faith.

Whether there was any direct and indirection discrimination

1. I have taken into account the provisions in relation to direct and indirect discrimination in s 15 of the DDA Act. I find that there is no conduct engaged in by the respondent that contravenes s 15 of the DDA Act or that constituted direct or indirect discrimination because of the applicant’s disability. On the evidence before the Court, it does appear that there was a period of time in which the applicant may have had a level of anxiety or depression.  The applicant informed the Court early on in her evidence that she went on leave in circumstances relating to her dissatisfaction with the handling of a complaint by her. 

2. On one view of the applicant’s evidence, the applicant’s leave had no relationship to any disability. However, giving the applicant the benefit of the doubt in circumstances where a psychologist’s report referred to anxiety and depression, I am prepared to accept that there was a short period during which the applicant, whilst on leave, had a degree of depression and as such, a disability for a short period. I do not accept that the applicant was the subject of any indirect and direct discrimination because of that disability. 

1. I do not accept the applicant was treated less favourably than someone who did not have anxiety and depression in circumstances where they were receiving benefits under the insurance policy. It would be quite alarming if the respondent had taken steps other than those steps taken by the respondent when made aware of the fact that the applicant was receiving a payment for being unfit until August 2016 without raising is very clearly the circumstances and basis upon which the applicant was asserting, notwithstanding having received that payment under the policy through the conditions of employment, that she was now fit for work.

2. I do not accept that the applicant, in comparison to other employees, was treated in any materially different way because of a disability or because of her anxiety or depression. I further accept the respondent’s submissions that there is an exception to s 15 of the DDA Act, which is s 21A of the DDA Act. To the extent that the applicant had a disability, given the claim on the insurer until August 2016 and the absence of medical evidence as to fitness despite that claim, I find on the evidence before the Court, the applicant was unable to carry out the inherent requirements of her work. I have taken into account the factors identified in subsection s 21A(2) of the DDA Act. 

Conclusion

1. I do not accept that any contravention of the Disability Discrimination Act 1992 (Cth) has been made out by the applicant. The applicant is not entitled to any relief as claimed in the amended statement of claim. Accordingly, the proceedings are dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 June 2018