Cargill Australia Limited v Higginson (EOD)

[2002] NSWADTAP 20

Appeal Panel

CITATION:	Cargill Australia Limited -v- Higginson (EOD) [2002] NSWADTAP 20
PARTIES:	APPELLANT Cargill Australia Limited RESPONDENT William Higginson
FILE NUMBER:	019048
HEARING DATES:	14/03/02
SUBMISSIONS CLOSED:	04/04/2002
DATE OF DECISION:	06/07/2002
DECISION UNDER APPEAL:	Higginson v Cargill Australia Limited [2001] NSW ADT 152
BEFORE:	Hennessy N (Deputy President); Bartley R - Judicial Member; Alt M - Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991095
DATE OF DECISION UNDER APPEAL:	09/13/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Industrial Relations Act 1996 Occupational Health and Safety Act 1993 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Workplace Health and Safety Act 1999 (QLD)
CASES CITED:	Kennedy-Taylor (NSW) Pty Ltd -v- WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 (7 December 2000) (WorkCover Authority (Inspector Egan) v Attco Controls Pty Limited (1998) 82 IR 80 Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch (o/b K Lowe) v George Weston Foods Ltd t/as Tip Top Bakeries [2001] NSWIRComm 327 Workcover Authority of NSW (Insp. Mansell) v Air Express International (Australia) Pty Ltd 1998 83 IR 64 Commonwealth Steel Company Limited and David Alfred Ward (Hill, Hungerford JJ, Shiels CC, IRC 3144 of 1993, 16 December 1994, unreported). Haynes v CI&D Manufacturing Pty Limited (1994) 60 IR 149 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Limited (No 2) (2000) 101 IR 261 WorkCover Authority (Inspector Egan) v Attco Controls Pty Limited (1998) 82 IR 80 Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 QD R 29 Inspector Foreman v Alcan Australia Limited, Chief Industrial Magistrates Court of New South Wales, 18 August 1988 Fletcher Construction Australia Limited v WorkCover Authority of NSW, unreported, Industrial Relations Commission of NSW, 17 August 1999 Groves v Queensland Independent Wholesalers Limited, unreported, Queensland Court of Appeal, 11 December 1992 Cooper v Ford Motor Company Australia (1987) EOC 92-191 State Transit Authority v Sloey & Anor [1999] NSWSC 47 Kitt v Tourism Commission & Ors (1987) EOC 92-197 Collector of Customs v Pozzolanic (1993) FCR 280 Waters v Public Transport Corporation (1991) 173 CLR 349 Clinch v Commissioner of Police (1984) EOC 92-115 David Jones (Australia) Pty Limited v "P" & Anor, Matter No 30062/96 (29 August 1997) Malkoun & Australian Liquor Marketers Pty Ltd [2000] NSWIRComm 1098 (8 September 2000) Matter No. IRC 5356 of 1998 Dana Tasovac and New South Wales Police Force Betty Bouchum Silaphet and South West Area Health Service NSW IRC 928/97 Boreland -v- Brambles Security Services Limited [2000] NSWADT 147
REPRESENTATION:	APPELLANT C Barton, solicitor RESPONDENT M Kumar, barrister
ORDERS:	1. The appeal is dismissed; 2. The question of the costs of these proceedings will be dealt with after hearing further submissions from the parties.

Introduction
1 This is an appeal by Cargill Australia Ltd (Cargill) against a decision of the Tribunal dated 13 September 2001. The Tribunal's decision concerned a complaint by Mr Higginson of unlawful discrimination on the ground of disability in the area of employment.

2 Mr Higginson is a maintenance fitter at an abattoir owned by Cargill. His job involves the repair, maintenance and modification of equipment and machinery used at the abattoir. In carrying out his duties, Mr Higginson needs to lift, bend, kneel, reach and climb in order to service machinery. His duties are often performed on surfaces which are greasy, bloody, fatty or icy.

3 In mid 1998 Mr Higginson was diagnosed with a blockage at the back of his knee. On 29 July 1998 he had surgery consisting of a “left femora posterior tibial by pass using reverse saphenous vein”. In August 1998 a conversation took place between Mr Higginson and a manager of Cargill in which Mr Higginson told the manager “If I blow the graft I could lose my leg.” According to the manager, Mr Higginson said “If I blow the graft I could lose my leg or even my life.”

4 On 24 August 1998 Mr Higginson’s treating surgeon, Dr Richardson, certified him fit to resume duties with no restrictions. After receiving a copy of the job description, Dr Richardson commented in a report dated 7 September 1998 that: “Provided he avoids tight flexion of the knee, such as squatting, and avoids sudden extension of the leg, there should be no other restrictions on his activities. . . ”

5 Cargill also obtained reports from its nominated doctor, Dr Fleming. In a report dated 11 September 1998 Dr Fleming stated that “William is fit for work but the work must comply with Dr Richardson’s restrictions. Thus William is at risk to continue his normal duties.”

6 On the basis of all the medical reports from Dr Richardson and Dr Fleming, Cargill decided, towards the end of September 1998, that Mr Higginson was not fit to return to his normal duties as a maintenance fitter at that time. Cargill concluded that there was no modified duties position which Mr Higginson could fill at that stage given the restrictions outlined in the medical report. It was not until April 1999 that Cargill was satisfied that Mr Higginson could return to work without any special risk to himself or others. Mr Higginson returned to work on 17 May 1999.

7 Mr Higginson alleged that his employer, Cargill, subjected him to unlawful discrimination contrary to the provisions of s 49D of the Anti-Discrimination Act 1977 (the Act) by refusing to allow him to return to work on or about September 1998 following surgery, despite the fact that his doctor certified him fit for work at that time. The Tribunal found that the complaint of unlawful disability discrimination had been substantiated and ordered Cargill to pay Mr Higginson $36,469.08 by way of damages. The damages were for lost wages from 7 September 1998 (the date Dr Richardson provided his second report) to 17 May 1999 when Mr Higginson returned to work.

Jurisdiction
8 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.

(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.
9 The powers of the Appeal Panel, if the appeal is restricted to a question of law, are set out in s 114:
If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:

(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),

(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for an order made by the Tribunal.

Issues before the Tribunal
10 There was no dispute that Mr Higginson has a disability within the meaning of that term in s 4 of the Act. The issues which the Tribunal identified were as follows:
a) Do the actions of the respondent in refusing to allow Mr Higginson to return to work in August 1998 fall within one or more of the provisions set out in s49(D)(1) and/or s49(D)(2) of the Act.
b) If so, was this treatment less favourable than the treatment afforded to an employee in the same circumstances or circumstances which were not materially different who did not suffer from Mr Higginson's disability or a disability substantially the same as his?

c) . . . if so, was this less favourable treatment "on the ground of" Mr Higginson's disability?

d) Finally, can the respondent rely on the defence set out in s54(1)(a) of the Act?

11 The relevant statutory provisions are set out below.
49D(2) [Terms and Conditions] It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which 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)...

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

12 Discrimination on the ground of disability is defined in s 49B of the Act:
49B(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

49B(2) [Characteristic] For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3)...

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

13 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

14 Section 54 of the Act is headed "Acts done under statutory authority" and relevantly provides:

54(1) [Compliance with requirement] Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a) any other Act, whether passed before or after this Act, any regulation, ordinance, by-law, rule or other instrument made under any such other Act
Tribunal's findings and reasons
15 The Tribunal found that Cargill’s refusal to allow Mr Higginson to return to work prior to May 1999 comes within the terms of s 49D(2)(a) and s 49D(2)(d) of the Act. Section 49D(2)(a) makes it unlawful for an employer to discriminate against an employee on the ground of disability in the “terms and conditions of employment”. Section 49D(2)(d) makes it unlawful for an employer to discriminate against an employee on the ground of disability by subjecting the employee to “any other detriment”. The Tribunal noted at [36] that “detriment” in the context of s 49D(2)(d) has been given a broad meaning. A decision to refuse an existing employee work potentially constitutes a detriment within the meaning of s 49D(2)(d). The Tribunal went on to note that as Mr Higginson's complaint does not fall within either s 49D(1)(b) or s 49D(2)(c) the inherent requirement defence is not available to Cargill.

16 The Tribunal then applied the definition of direct discrimination in s 49B to the agreed facts. In relation to the “less favourable treatment” limb of the test in s 49B, the Tribunal concluded that, in the same circumstances, or in circumstances which are not materially different, Cargill did treat Mr Higginson less favourably than it treats or would treat a person who does not have the same or substantially the same disability as Mr Higginson. The Tribunal found that Cargill’s refusal to allow Mr Higginson to return to work during the relevant period was “different” treatment from the treatment Cargill afforded to other maintenance fitters who did not suffer from Mr Higginson's particular disability or a disability that was substantially the same as Mr Higginson’s disability.

17 The Tribunal went on to find that, on 17 August 1998 and at various times after that date, Dr Richardson certified that Mr Higginson was fit to return to work. Dr Fleming agreed that he was fit to return to work but not to his normal duties. The Tribunal concluded at [47] that:

Whatever the motivation that lay behind the respondent's decision, the outcome was that Mr Higginson was denied employment for a period of 42 weeks. During this period he received no pay for about five months and used a combination of accrued leave entitlements for the remaining period. His loss was real and of substance, it could not be said to be trivial. Accordingly we are satisfied that the respondent's refusal to allow Mr Higginson to return to work constitutes less favourable treatment.
18 The Tribunal then turned to the issue of whether Cargill’s decision not to allow Mr Higginson to return to work was made “on the ground of” his disability or presumed disability. Cargill’s case was that Mr Higginson was not allowed to return to work as one of their managers formed the view, based on medical advice and their knowledge of the working environment, that there was a significant risk that Mr Higginson would injure himself if he resumed work. Based on the provisions of s 4A of the Act, the Tribunal concluded at [51] that “the inescapable conclusion is that Mr Higginson's disability was one of the grounds for the respondent's decision.” Consequently, the Tribunal held that Cargill’s refusal to allow Mr Higginson to return to work constituted unlawful discrimination on the ground of disability.

19 The Tribunal then examined the question of whether Cargill could rely on s 54(1)(a) of the Act as a defence to their discriminatory conduct. Section 54(1)(a) renders a discriminatory act lawful where that act was necessary in order to comply with a requirement of any other Act, whether passed before or after the Anti-Discrimination Act. Section 109 of the Act provides that the onus of proving that the conduct falls within one or more of the exceptions to the Act lies with the respondent.

20 Cargill submitted that it was necessary for it to refuse to allow Mr Higginson to return to work throughout the relevant period in order to comply with s 15 of the Occupational Health and Safety Act 1993 (the OH&S Act). On 1 September 2001, that Act was repealed and replaced with the Occupational Health and Safety Act 2000. The relevant provision for the purposes of this appeal is s 15 of the old Act which stated that:

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control:

(i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

21 In particular, Cargill relied on the medical evidence of Dr Richardson that, “Provided he avoids tight flexion of the knee, such as squatting, and avoids sudden extension of the leg, there should be no other restrictions on his activities.” Cargill’s main submission was that given all the evidence, including Mr Higginson’s comment that ““If I blow the graft I could lose my leg”, there was a real risk to Mr Higginson’s health if he returned to work prior to April 1999.

22 The Tribunal concluded that Cargill had not made out the defence in s 54 because it was not necessary to refuse to allow Mr Higginson to return to work in order to comply with a requirement in s 15 of the OH&S Act.

23 In relation to avoiding tight flexion of the knee, such as squatting, the Tribunal found that it was possible for Mr Higginson to carry out his duties without bending his leg beyond 90 degrees. In addition the Tribunal noted that Mr Higginson was not required to squat, he was merely required to get down to low levels on occasions. Mr Higginson had a long standing preference for kneeling. Dr Richardson’s evidence was that Mr Higginson is capable of getting down to his knees. Consequently the Tribunal concluded that there was no evidence to suggest that Mr Higginson would be unable to perform the job without bending his knee beyond ninety degrees.

24 The key findings of fact that the Tribunal made in relation to Dr Richardson’s restriction that Mr Higginson avoid sudden extension of the leg were that:

· a sudden extension of the leg was a possible consequence of slipping;

· Cargill has taken extensive measures to minimise the risk of its employees slipping, but it has been unable to entirely eliminate the risk of an employee slipping over;

· Mr Higginson had not slipped over in the twenty years he had worked at the abattoir and was no more prone to slip than any other employee.

25 The Tribunal accepted that Mr Higginson may suffer a more severe injury than an employee without a similar disability if he slipped and suddenly extended his leg. However the Tribunal did not make a finding about the possible nature or extent of such an injury. The only evidence in relation to this matter was Mr Higginson’s comment to the manager that “If I blow the graft, I could lose my leg.” Mr Higginson’s representative, Ms Kumar, submitted that the Appeal Panel should not rely on this evidence because Mr Higgingson is not qualified to give a medical opinion. We agree with this submission. Mr Higginson made this comment to a manager. This issue was not addressed by any of the expert medical evidence. Consequently we have proceeded on the basis that Mr Higginson may suffer a more severe injury than an employee without a similar disability if he slipped and suddenly extended his leg, but the nature or extent of that injury is unknown.

26 The Tribunal concluded [at 58] that s 15 of the OH&S Act imposes on employers a far-reaching strict liability to ensure the health, safety and welfare at work of their employees. The Tribunal added that the evidence, objectively assessed, must establish that the act of unlawful discrimination was necessary in order to comply with s 15 of the OH&S Act and that Cargill had no other non-discriminatory option. (See [57] and [58].)

27 At paragraphs 81 to 84 of its decision, the Tribunal set out its reasoning:

81 If the respondent's argument is correct that it had no option but to refuse Mr Higginson's return to work (prior to April 1999), as it was unable to eliminate the risk of slipping, and as such unable to comply with s 15 of the OH&S Act, it would appear to us that it follows that the respondent may also be unable to comply with s 15 in respect of all abattoir employees. Because the consequences of an injury may be more severe for a particular employee due to disability or some other factor such as pregnancy it does not follow that an employer will necessarily be in breach of s 15 if they permit such employee to resume work. As stated in Kennedy-Taylor (NSW) Pty Ltd -v- WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 (7 December 2000) [at 54] it is "the failure of the employer to ensure that its employees are not exposed to risks" that constitutes the offence under s 15 of the OH&S Act. For a prosecution to succeed under s 15 it needs to be established that there was some causal connection between an act or omission on the part of the employer and the accident that occurred. It would appear to us that the respondent has unduly concentrated on the consequences of Mr Higginson slipping rather than the steps taken to obviate the risk of accident.

82 While it is not in issue that the respondent as an employer was required to comply with s15 of the OH&S Act, it does not automatically follow that the respondent was required by virtue of that provision to bar Mr Higginson's return to work. An employer seeking to rely on the s 54 exemption, faced with apparently competing medical opinion, cannot merely point to its preferred medical advice to establish that it was necessary to act as it did in order to comply with any other Act. It is necessary for all relevant factors to be taken into account. Here, the applicant was of the view he was fit to return to work. That view was supported by medical opinion. Dr Fleming's contrary opinion appears to be based on the assumption that squatting was necessary to carry out the work of a fitter. The evidence shows that there are alternatives to squatting. Mr Higginson's evidence was that he had not slipped at work in twenty years. Further it is relevant to note that slipping related accidents amongst the respondent's workforce are not common; the respondent has taken measures to minimise the risk of slipping; the complainant was no more prone to slip than other employees. While it was proper that the respondent have regard to the consequences of a slipping injury, this is but one of the factors required to be taken into account.

83 We deal finally with the argument raised in passing by the respondent that Mr Higginson's return to work prior to May 1999 may have constituted a risk to the safety and health of other employees. We see no evidence to support this claim. There is simply no evidence before us to suggest that Mr Higginson was more prone to accidents than his colleagues. Nor does the evidence suggest that if he were involved in an accident his fellow employees would be placed at any greater risk than they would be had the accident involved another employee of the respondent.

84 In conclusion we are not satisfied that the respondent has proven that it was necessary for it to refuse to allow Mr Higginson to return to work in order to comply with s15 of the OH&S Act.

Grounds of appeal
28 Approach to determining whether there has been a breach of the Act . The first ground of appeal was that the Tribunal approached the interpretation of section 49D(2) and 49B(1)(a) in the wrong order. The Tribunal looked first at s 49D(2). That provision sets out the elements which a complainant must establish before the Tribunal can find that an employer has engaged in an unlawful act. The Tribunal then applied the definition of discrimination in s 49B. Cargill submitted that the Tribunal should have looked first at the definition of discrimination in s 49B and then asked whether that conduct fell into one of the provisions of section 49D(2). According to Cargill, by looking first at whether there was any “detriment” in terms of s 49D(2)(d) the Tribunal fell into error by equating that detriment with "less favourable treatment" in s 49B(1)(a).

29 The second point in relation to this ground of appeal was that Cargill did not treat Mr Higginson less favourably than a comparable employee without a disability because it required all its employees to be ready, willing and able to perform the duties of the role which he or she was employed to do. Cargill submitted that the Tribunal must take into account the reasons for not allowing Mr Higginson to return to work before concluding that he was subjected to less favourable treatment.

30 Interpretation and application of s 54 of the Act and s 15 of the OH&S Act. The second ground of appeal was that the Tribunal erred in law by finding that Cargill had not made out the defence in s 54 of the Act. The Tribunal concluded that it was not necessary to refuse to allow Mr Higginson to return to work in order to comply with a requirement in s 15 of the OH&S Act.

31 The crux of Cargill’s submission was that once it was on notice that if Mr Higginson slipped at work he may suffer a more significant injury than other employees, they would be failing to comply with their obligations under section 15 of the OH&S Act if they allowed him to return to work. The Appeal Panel gave Cargill the opportunity to present further written submissions on this point which they did on 21 March 2002.

32 Cargill submitted that the assessment of the risk to an employee of a particular activity in a workplace must take into account the attributes of that employee, including any special susceptibility to injury. Cargill maintained that support for this proposition could be found in:

· Occupational Health and Safety Regulation 2001, in particular Chapter 2 which imposes an obligation on an employer to identify foreseeable hazards that may arise;

· occupational health and safety decisions which emphasise that an employer must take a pro-active approach to assessing and eliminating foreseeable risks to the health, safety and welfare of its employees (WorkCover Authority (Inspector Egan) v Attco Controls Pty Limited (1998) 82 IR 80 at 85; Haynes v CI&D Manufacturing Pty Limited (1994) 60 IR 149; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Limited (No 2) (2000) 101 IR 261 at 267;

· occupational health and safety cases which refer to susceptibility of employees to injury including Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 QD R 29; Inspector Foreman v Alcan Australia Limited, Chief Industrial Magistrates Court of New South Wales, 18 August 1988; Fletcher Construction Australia Limited v WorkCover Authority of NSW, unreported, Industrial Relations Commission of NSW, 17 August 1999; Groves v Queensland Independent Wholesalers Limited, unreported, Queensland Court of Appeal, 11 December 1992;

· anti-discrimination cases including Cooper v Ford Motor Company Australia (1987) EOC 92-191; Justice Barr’s comments in State Transit Authority v Sloey & Anor [1999] NSWSC 47; and Kitt v Tourism Commission & Ors (1987) EOC 92-197; and

· related legislation which recognises the need for employers to have regard to particular needs and susceptibilities of individual employees including s 70 of the Industrial Relations Act 1996 (NSW) which imposes an obligation on an employer to adjust the working conditions or hours of work of a female employee who is pregnant or breastfeeding.

Appeal Panel’s reasons
33 Approach to determining whether there has been a breach of the Act. The first ground of appeal was that the Tribunal should have looked first at the definition of discrimination in s 49B and then asked whether that conduct fell into one of the provisions of section 49D(2). This submission misunderstands the structure of the legislation. Section 49D(2)(d) provides that: “It is unlawful for an employer to discriminate against an employee on the ground of disability by subjecting the employee to any other detriment.” In order to prove that there has been a breach of s 49D(2)(d) an employee must prove that he or she has been subjected to a detriment and that the employer’s conduct which resulted in the detriment falls within the definition of “discrimination on the ground of disability” in s 49B.

34 As the Tribunal must refer to the definition of discrimination in s 49B when determining whether there has been a breach of s 49D(2)(d), it does not matter which provision is addressed first. There is nothing in the Act or any case law brought to our attention which suggests that the Tribunal must address the definition of discrimination in s 49B prior to considering whether the alleged conduct falls within an area of activity as defined in s 49D. In our view the Tribunal did not make any error of law in the order in which it dealt with this issues.

35 Cargill submitted that the Tribunal equated “detriment” in s 49D(2)(d) with “less favourable treatment” in s 49B(1)(a). The Tribunal dealt with those issues separately and made findings in relation to each of those matters on the basis of the relevant evidence and the statutory tests. The detriment suffered by the complainant was his inability to work for a period of 42 weeks and the subsequent loss of income he suffered. The “less favourable treatment” was Cargill’s refusal to allow him to return to work prior to April 1999. We can detect no error in the Tribunal’s approach or findings.

36 Cargill’s second point in relation to this ground of appeal was that it did not treat Mr Higginson “less favourably” than a comparable employee without a disability because it required all its employees to be ready, willing and able to perform the duties of the role which he or she was employed to do.

37 Mr Higginson’s complaint is one of direct discrimination under s 49B(1)(a) rather than indirect discrimination under s 49B(1)(b). The treatment complained of was Cargill’s refusal to allow Mr Higginson to return to work prior to April 1999 following an operation on his leg. He did not complain that Cargill had imposed an unreasonable requirement or condition pursuant to s 49B(1)(b) with which he could not comply. Cargill cannot change Mr Higginson’s complaint from one of direct discrimination into one of indirect discrimination.

38 Cargill also submitted that the Tribunal should have taken into account their reasons for treating Mr Higginson as they did when determining whether that treatment was “less favourable.” The test set down in section 49B(1)(a) is an objective one. It merely requires less favourable treatment than in the same circumstances, or in circumstances which are not materially different, Cargill treats or would have treated a person who does not have the same or substantially the same disability as Mr Higginson. The Tribunal correctly considered Cargill’s reasons for refusing to allow Mr Higginson to return to work when it looked at whether Cargill’s conduct was “on the ground of” Mr Higginson’s disability. (See paragraphs [48] to [52] of the Tribunal’s decision.) We cannot detect any error of law in relation to this ground of appeal.

39 Interpretation and application of s 54 of the Act and s 15 of the OH&S Act. The question before the Appeal Panel in relation to this ground of appeal is whether the Tribunal erred in concluding that it was not necessary for Cargill to refuse to allow Mr Higginson to return to work prior to April 1999 in order to comply with a requirement under s 15 of the OH&S Act. This ground of appeal raises a question of law. The question of whether “the facts fully found fall within the provision of a statutory enactment, properly construed, is generally a question of law." Collector of Customs v Pozzolanic (1993) FCR 280 at 289.

40 In addressing this ground of appeal, we will deal with the scope of s 54 of the Act and s 15 of OH&S Act, some relevant occupational health and safety cases and some relevant anti-discrimination cases.

41 Scope of s 54. While the interpretation of s 54 of the Act was not raised as in issue in this appeal, it is worthwhile briefly setting out the scope and meaning of that provision. In Waters v Public Transport Corporation (1991) 173 CLR 349 the High Court considered the operation of s 39(e)(ii) of the now repealed Equal Opportunity Act 1984 (Vic) which was in virtually the same terms as s 54. McHugh J observed that Clinch v Commissioner of Police (1984) EOC 92-115, a decision of the former Equal Opportunity Tribunal (EOT), was correctly decided. McHugh J stated at p 413, that:

The Equal Opportunity Tribunal of New South Wales held that, in order to fall within the exception in s 54, the Commissioner (of Police) had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct. The Tribunal held that the requirement of the “other Act” must be mandatory and specific.
42 Commenting on this passage in David Jones (Australia) Pty Limited v "P" & Anor, Matter No 30062/96 (29 August 1997), the NSW Supreme Court (Abadee J) stated that:
The scope and operation of the specific exception in s 54(1) may in some cases be able to accommodate or operate as to permit reliance upon a relevant provision of the Occupational Health and Safety Act or other statute or regulation subject to such meeting the test stated in Waters by McHugh J at 413. There, his Honour's reasons indicate a difficulty in meeting the strict requirements of s 54(1) where reliance is founded on general provisions such as s 15 or s 16 of Acts such as the Occupational Health and Safety Act.
4 3 Scope of s 15. Under s 15 of the OH&S Act every employer shall ensure the health, safety and welfare at work of all the employer's employees. Under s 15(2) if an employer fails to do certain things, it will be in contravention of s 15(1). In Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 (7 December 2000) the New South Wales Industrial Relations Commission (IRC) commented on the relationship between s 15(1) and s 15(2) at [47]:
We take the view that s 15(1) creates the offence and imposes a far reaching, strict liability on employers to ensure the health, safety and welfare at work of all of the employer's employees. We consider that the specific duties described in the six paragraphs of s 15(2) are exemplar of the general duty imposed on employers under s 15(1). The duties specified in s 15(2) are very extensive but we do not consider them to be exhaustive.
44 A fundamental issue in relation to the scope of s 15 is whether it obliges employers to refuse to allow an employee or prospective employee to work if that person is more susceptible to injury than other employees. This issue was considered in Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch (o/b K Lowe) v George Weston Foods Ltd t/as Tip Top Bakeries [2001] NSWIRComm 327. The IRC dealt with a submission that s 15 of the OH&S Act was confined to an employer's obligation in terms of the system and method of work, the way in which it is undertaken, and the training provided. The IRC stated at [90] and [94]:
This approach is supported by the judgment of Glynn J in Air Express. ( Workcover Authority of NSW (Insp. Mansell) v Air Express International (Australia) Pty Ltd 1998 83 IR 64.) Whilst an employer may properly set physical capabilities for employment and exclude from engagement persons who are not able to satisfy the genuine physical requirements inherent in a particular position, there is, in my view, a significant difference between that application of employment criteria and the assessment of risk of physical deterioration of an individual who has, for a lengthy period of time, performed the subject duties without incident.

This interpretation of s15 of the OH&S Act is further supported by the decision in Commonwealth Steel Company Limited and David Alfred Ward, a decision of a Full Bench of the Commission (Hill, Hungerford JJ, Shiels CC, IRC 3144 of 1993, 16 December 1994, unreported).

45 These authorities do not definitively state that s 15 of the OH&S Act is confined to an employer's obligation in terms of the system and method of work, the way in which it is undertaken, and the training provided. However, they do differentiate between insisting that an employee can perform the inherent requirements of a position and excluding an employee who is at risk of physical deterioration but who nevertheless has performed the duties for a considerable time without incident.

46 Employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50).

47 The Occupational Health and Safety Regulation 2001, to which Cargill referred, cannot be taken into account in these reasons because that Regulation was not in force at the time the alleged discriminatory conduct occurred.

48 Relevant OH&S cases. Industrial Relations cases which have considered the operation of s 15 include both prosecutions for breaches of that section and cases under s 92(1) of the Industrial Relations Act 1996. Section 92(1) states that:

If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.
49 In Malkoun & Australian Liquor Marketers Pty Ltd [2000] NSWIRComm 1098 (8 September 2000) the applicant applied to be reinstated pursuant to this section. The employer submitted that the IRC needs to have regard to the employer's obligations pursuant to section 15 of the OH & S Act. There was uncontested evidence in that case that there was risk of the applicant re-injuring himself. The employer believed that it would be dangerous for the Commission not to weigh heavily the prospects of re-injury in determining whether to reinstate the applicant. Commissioner Murphy found that the evidence favoured the applicant’s return to his pre-injury duties. The likelihood that he could injure himself again did not convince the IRC that the applicant should not be reinstated. Murphy C said that:

In the end, I have concluded that based on the evidence relied upon by the respondent in this case, no one suffering an injury would ever be able to achieve reinstatement. The fact is that Part 7 of Chapter 2 of the legislation does contemplate that with the proper exercise of the Commission's discretion, using all available medical evidence, employees should be given the opportunity of a return to work on full duties . . .

I have also noted the comments of Commissioner McKenna in a decision she gave on a Section 93 application on 1st October, 1999 in Matter No. IRC 5356 of 1998 Dana Tasovac and New South Wales Police Force, which I have also found relevant to my consideration here. The extract begins at the bottom of page 14 of her decision as follows:

"While the evidence indicated that the applicant was medically fit for reinstatement, the possibility of a relapse was not ruled out by any of the doctors who examined the applicant. It may be observed that the possibility of the recurrence of a work-related injury (whether that be a physical injury or a psychological injury) may remain a possibility in any range of cases involving recovered, injured workers. The possibility of relapse is not a good or proper reason to decline to give effect to the applicant's reinstatement application given the medical evidence as to present fitness.
50 Murphy C distinguished a decision of His Honour Mr Justice Maidment in Betty Bouchum Silaphet and South West Area Health Service NSW IRC 928/97 handed down on the 17th March, 1998, where His Honour did not accept that an employer should accept any risks in this regard.

51 Prosecutions under s 15 have focused on the provision of a safe workplace, not on excluding employees whose physical characteristics may place them at greater risk of harm than other employees. In Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, a decision of the Queensland Court of Appeal, the Court had to consider s 9(1) of the Workplace Health and Safety Act 1999 (Qld). That section provides that “an employer who fails to ensure the health and safety at work of all his employees, except where it is not practicable for him to do so, commits an offence against this Act.” The Roman Catholic Trust Corporation (the Corporation) had employed Mr Finn as a groundsman but had terminated his employment after it was discovered that he was suffering from a serious lung disease. At first instance the court found that the Corporation's failure to require Mr Finn to wear a mask whenever he would be exposed to dust or to mist when using a pressure-sprayer, was in breach of their statutory duty. It was not disputed that the Corporation was not aware of Mr Finn’s susceptibility to injury. The Court of Appeal (Williams J, McPherson J.A. and Thomas J concurring) held that the Corporation was not liable for negligence or for any breach of their statutory duty because it was unaware of Mr Finn’s susceptibility to injury. In relation to the law of negligence, Williams J commented that:

It has also generally been recognised, where the employer has knowledge or at least the means of knowledge of a particular susceptibility to injury in the employee, then that will affect the steps which must be taken in order to comply with the obligation to take reasonable care. . . .
52 This comment suggests that if the Corporation had been aware of Mr Finn’s susceptibility to injury, they may also have been in breach of their statutory duty if they failed to insist that he wear a mask when exposed to certain hazards. The Court did not suggest that the Corporation would have been under any duty to terminate Mr Finn’s employment had they known of his medical condition.

53 Another case which commented on an employer’s obligations under s 15 of the OH&S Act is Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch (o/b K Lowe) v George Weston Foods Ltd t/as Tip Top Bakeries [2001] NSWIRComm 327 referred to above at paragraph 43. Mr Lowe was a bread vendor whose duties primarily involved collecting bread products from the company's depot and delivering them to various outlets. He suffered a back injury which was unrelated to his work. His treating doctor certified him fit to return to work in February 2001. The IRC found that the termination of Mr Lowe's employment would be harsh, unreasonable and unjust. One issue before the IRC was whether the provisions of s15 of the OH&S Act operate in such a way as to require the employer not to engage Mr Lowe in bread vending duties where there is a risk of recurrence of injury to him. The Tribunal found that Mr Lowe was no more or less at risk than any other person carrying out these duties. The IRC added at [83] that “The argument advanced . . . that Mr Lowe is a bread vendor of 12 years experience without workplace injury suggesting that he has developed personal techniques and ability to perform this work is logical.”

54 Relevant anti-discrimination cases. In Kitt v Tourism Commission of NSW (1987) EOC 92-196, the Tourism Commission terminated Mr Kitt’s temporary employment as a cave guide because he had epilepsy. The Tourism Commission submitted that if Mr Kitt were to suffer an epileptic seizure while working as a caves guide, then the safety of visitors to the caves, and possibly other employees, would be threatened. The EOT stated at 76,887, that: “In determining whether this defence is made out, it is necessary to consider two factual matters: first, the likelihood of Mr Kitt suffering a seizure while at work; and secondly, the likely consequences if he did so.” After examining the evidence the EOT found that Mr Kitt’s continued employment did not constitute a breach of s 15 of the OH&S Act. The Tribunal’s decision on this point was upheld on appeal. (Kitt v Tourism Commission & Ors (1987) EOC 92-209.)

55 In State Transit Authority v Sloey [1999] NSWSC 47, a bus driver was diagnosed as suffering from blockage of a coronary artery and underwent coronary artery graft surgery. The State Transit Authority (STA) certified Mr Sloey unfit to return to his job as a bus driver and offered him a lower paid job. The STA submitted that in order to meet its obligation under the OH&S Act it was necessary for it to apply certain general guidelines that an employee who has undergone coronary artery graft surgery presented an increased risk of symptoms for a further twelve months after surgery. Barr J stated at [53] and [54]:

The burden of proving necessity for the purposes of s 54 lay on STA. Although it was entitled to point to the heavy duty resting upon it because of ss 15 and 16 Occupational Health and Safety Act I think that in order to establish the defence of necessity it had to do more than prove that Mr Sloey fell into a category of drivers who epidemiologically presented an increased risk of symptoms. In my opinion STA had to show that it was necessary to certify Mr Sloey himself unfit to drive a bus. That is to say, STA was obliged to consider the risks that Mr Sloey presented as an individual.

There is authority for this approach. In Kitt v Tourism Commission (1987) EOC ¶92-196 an employee suffered from epilepsy and his employer discriminated against him because of what was said to be his proneness to suffer seizures, either because it was a characteristic which appertained generally to persons suffering from epilepsy or one which was generally imputed to such persons. The Tribunal took the view that it was insufficient merely to look at the risks that might be presented by a person in a category but necessary to consider the circumstances of the employee himself.

56 Cargill also cited Cooper v Ford Motor Company of Australia (1987) EOC 92-191 in support of their submission. In that case the Equal Opportunity Board of Victoria decided that they had no jurisdiction to hear the complaints but nevertheless went on to make comments about the occupational health and safety obligations of the employer. The Board accepted the medical evidence that the complainant had a substantially greater risk of developing chronic low back pain than other members of the community. The Board concluded at 76,825, that “. . . a policy of not employing persons with spondylolisthesis as fitters and turners in the particular conditions of the Ford Geelong plant is justified.”

57 Several other Tribunal cases have addressed this issue. In Hawes v NSW Ambulance Service 1994 EOC 92-586, an ambulance driver was terminated after having a grand mal epileptic seizure at work. The employer successfully relied on the defence in s 54. The Tribunal was satisfied that the complainant was subject to an “unacceptably high risk of further seizures” and that “the consequences would be severe” if this occurred at work.

58 In Boreland -v- Brambles Security Services Limited [2000] NSWADT 147 the complainant, an armoured vehicle operator, was denied access to rostered overtime after he suffered a back injury at work. The Tribunal found that there was no medical evidence that Mr Boreland could only work limited hours for health reasons. The Tribunal was not satisfied that Brambles had no option but to restrict the complainant's overtime in order to comply with s15 of the OH&S Act.

59 Conclusions. Based on the analysis set out above, we have come to the following conclusions. Section 15 of the OH&S Act imposes a mandatory requirement on Cargill to ensure the health, safety and welfare at work of all their employees. The fact that s 15 is expressed in general terms makes it difficult to determine exactly what Cargill is required to do to comply with this provision.

60 While the focus of s 15 is on an employer's obligations in terms of the system and method of work, the way in which work is undertaken, and the training provided, there may be situations where an employer is justified in refusing to allow a person to work, either in a particular job or at all, because to do so would be likely to constitute a breach of s 15 of the OH&S Act.

61 In these cases all the relevant circumstances must be taken into account including:

· whether the person is able to perform the genuine physical requirements inherent in a particular position (this factor is sometimes expressed as being currently fit for work);

· whether the person is at any greater risk of injury or deterioration than other employees without the same or similar disability as the person (when considering this matter the person’s medical and work history is relevant, including whether the person has suffered work-related injuries in the past);

· whether the employer has any options, other than refusing to allow the person to work, which would minimise or eliminate the risk of injury or deterioration; and

· the consequences for the person and/or other employees if the person is injured or if his or her health deteriorates.

62 In this case Mr Higginson was fit for work and able to perform the inherent requirements of the job despite the restrictions imposed by Dr Richardson. Mr Higginson had not slipped over in 20 years of working with Cargill. There was no more likelihood of Mr Higginson re-injuring himself by slipping over, than for any of Cargill’s other employees.

63 It was accepted by the Tribunal that there were no other steps that Cargill could have taken to minimise or eliminate the risk of Mr Higginson slipping or the risk of injury if he did slip. While Mr Higginson may suffer a more severe injury than an employee without a similar disability if he slipped and suddenly extended his leg, the likely nature or extent of such an injury is unknown.

64 Taking into account all these factors, we are not satisfied that it was necessary for Cargill to refuse to allow Mr Higginson to return to work prior to April 1999 in order to comply with s 15 of the OH&S Act. We agree with the Tribunal’s reasoning and conclusion and therefore no error of law has been made out. In those circumstances leave is not granted, pursuant to s 113(2)(b) of the ADT Act, to extend the appeal to a review of the merits of the decision.

Orders

1. The appeal is dismissed.

2. The question of the costs of these proceedings will be dealt with after hearing further submissions from the parties.