Carman v Torrens Transit Services (North) Pty Ltd
[2009] SAEOT 6
•29 July 2009
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
CARMAN v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2009] SAEOT 6
Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Ms A Bachmann
29 July 2009
DISCRIMINATION LAW
Allegation of discrimination on the basis of impairment against an applicant for a position of bus operator - whether respondent acted in contravention of the Equal Opportunity Act 1984 - the rejection of the application found to be in contravention of the Act - appeal allowed - compensation awarded.
Equal Opportunity Act 1984; Workplace Relations Act 1996, referred to.
Forest v Queensland Health [2007] FCA 1236; Gama v Qantas Airways No 2 [2006] FMCA 1767, considered.
CARMAN v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2009] SAEOT 6
On 16 September 2005, Mr Carman complained to the Commissioner of Equal Opportunity (“the Commissioner”) that Torrens Transit Services (North) Pty Ltd (“Torrens Transit”) had discriminated against him by denying him access to employment contrary to the Equal Opportunity Act 1984 (“the Act”). The Commissioner attempted to conciliate the complaint, but was unsuccessful. The Commissioner referred the complaint to this Tribunal pursuant to s 95(8) of the Act, for hearing and determination on 19 March 2008.
At the hearing before this Tribunal, Mr and Mrs Carman and Dr John Meegan, an occupational physician, gave evidence in the complainant’s case. Ms Schirmer, the Director of Clinical Services of the Corporate Health Group and Mr Doug Lamont, the General Manager of Torrens Transit, gave evidence in Torrens Transit’s case.
The Facts
Mr Carman was born in 1941. He drove school buses in Cummins, South Australia in the 1960s for about 12 months. In 1976, he was employed as a bus driver for a bus company in Mackay, Queensland, and he continued in that position for about three and a half years. He then moved to Adelaide and drove buses for Quest Tours for a further two and a half years. In about 1979, Mr Carman became a bus driver for TransAdelaide and he remained in that position until about June 1993. He then sold books for a year. In about 1995, Mr Carman purchased a mini bus and contracted to Adelaide Mini buses for about a year. Subsequently, he conducted his own business, “Adelaide Tour and Charter”, which eventually included one mini bus and two larger buses. He did general charter work and some school runs.
Mr Carman commenced part time casual employment with Serco on 4 March 2000. He continued to operate his business (employing other drivers) as well as working for Serco until 2004 when he sold his buses. As a part time casual employee of Serco, he worked between 20 and 50 hours per week. He underwent Serco’s training program. He was made a permanent full time employee of Serco in about May 2000. At first, he was based in Serco’s Elizabeth depot, but in July 2000, he moved to Serco’s Morphettville depot. At the Morphettville depot, Mr Carman worked a minimum of 40 hours per week, including 38 hours at the standard hourly pay rate and two hours per week at 150% of the standard rate. He frequently worked overtime beyond the standard two hours.
During his time with Serco, Mr Carman undertook further training. On 2 August 2001, he was awarded Certificate II in Transport and Distribution (Road Transport). He attained the classification of Group 3 Operator upon completion of that training.
In 2005, Mr Carman was made redundant by Serco when Serco was unsuccessful in obtaining a renewal of its contract with the State Government. The announcement was made in February of 2005.
Torrens Transit was the successful tenderer for those parts of the State Government public bus operations described by Mr Lamont in evidence as the north/south contract and the outer north east contract. Southlink was the successful tenderer in relation to the balance of the Metropolitan Adelaide bus routes, except for the hills area, which was conducted by Hills Transit. Torrens Transit was to assume the conduct of its routes on 24 April 2005.
Mr Lamont gave evidence about the process adopted by Torrens Transit to employ the bus drivers needed to begin servicing the bus routes in accordance with the contract by 24 April 2005. He said that positions were advertised in mid February. About 600 people applied. There were about 400 positions.
Mr Carman said that Torrens Transit had a number of information sessions for Serco staff, at least one of which Mr Carman attended. Mr Carman made a written application to Torrens Transit for the position of bus operator. In his application, as required, he listed the WorkCover claims made by him in the past and also completed an authority to enable Torrens Transit to obtain information about his past WorkCover claims from the WorkCover Corporation. Mr Carman’s application was tendered as part of a set of documents in Torrens Transit’s case. Under the heading “Worker’s Compensation Claims”, in response to the written question “Have you ever made a Worker’s Compensation Claim or received a lump sum settlement?”, Mr Carman has ticked the “Yes” box, and in response to the question “If yes, please provide details”, Mr Carman has written “1992-3. Buttocks. Slipped & landed on buttocks. OK now. Shoulder joint 2004 – changed manual dest [sic] in old artic [sic] bus at Morphettville. Ok now.” The same set of documents contains a letter from WorkCover Corporation to Mr Carman dated 22 February 2005, which lists the following under the heading “Previous Claims”:
Date of Injury Description of Injury
21.1.93sprains to multiple locations
21.3.03left shoulder blade, neck, left ankle, left hip, left scapular, right shoulder
22.4.03mild ethylene glycol ingestion
10.12.03right shoulder sprain.
Mr Carman was interviewed in relation to his application. After the interview, he was advised that he was required to undergo a functional capacity assessment at the Mile End clinic of the Corporate Health Group before his application could be considered further. Mr Lamont gave evidence that any interviewee who had reported a prior injury to his or her neck, shoulders, knees or back was required to undergo a functional capacity assessment before being considered for appointment to a position.
Mr Carman attended his functional capacity assessment on 18 March 2005. Ms Phoebe Brown, an occupational therapist employed by the Corporate Health Group, conducted the assessment. Mr Carman completed a questionnaire prior to the physical component of the assessment. He disclosed that he is a diabetic, on certain medication. He disclosed that he had broken his wrist “6 years ago”. In response to the question “have you ever had a disease or injury resulting from work?”, he ticked “Y” and wrote “Right Shoulder bursil Dec 2003”. He also disclosed that he experienced numbness in his 5th/6th digit, right hand since a neck injury in the 1980s. In evidence, Mr Carman said that he sprained his right knee a short time before undergoing the functional capacity assessment, which he believed inhibited his ability to perform a squat. His knee recovered fully, in time.
The functional assessment report provided to Mr Lamont by the Corporate Health Group contained a number of components. The report provided in relation to Mr Carman contained a table entitled “Summary of Assessed Capacity”, in the following form:
Physical Demand
Inherent Job Requirements
Applicant Achieved
Requirements met
Yes
No
Range of movement
Full range in shoulders, arms and legs
Please see notes
ü
Sustained squat
60 Seconds
ü
Fitness (Treadmill)
Average
Below average
ü
Grip Strength
29 kgs
Bilaterally below 29 kg
ü
Waist Height Push
24 kg Occasional
ü
Waist Bench Lift
30 kg Occasional
ü
Static Bench Lift
30 kg Occasional
ü
Lifting Ground to Bench Level
10 kg Occasional
ü
Carry
10 kg Occasional
ü
FROM – Upper Level Reach
Competitive Work Rate
ü
FROM – Stooping
Competitive Work Rate
ü
Body Mechanics
Appropriate for Repetitive Lifting
ü
Back Fitness
Fair
Poor
ü
In the “Conclusions and Recommendations” section of the report, Ms Brown wrote:
In the opinion of the examining Therapist, Mr Carman has completed this assessment.
He has failed to meet the inherent physical requirements for the position of Bus Driver in the following areas:
· Range of Movement, tightness in legs slightly restricted kneel/squat capacity.
· Slight impingement in right shoulder in passive rotation of the joint.
· Bilateral grip strength below 29 kg
· Back fitness rating poor.
With the following qualifications…
· Right shoulder bursitis December 2003, fully recovered.
· Left wrist broken six years ago, no discomfort reported.
· Right knee sprain two months ago, occasional ache experienced.
· Fell onto buttocks in 1992, no discomfort reported.
It is recommended that he improve his back fitness in the future. This can be achieved by performing core stability exercises.
In the “Detailed Assessment Results” provided as part of the report, Ms Brown noted that Mr Carman’s grip strength in his dominant right hand was 28 kg, and the grip strength of his left hand was 19.5 kg. The requirement was 29 kg. Also in this section, it said that Mr Carman’s performance on the fitness treadmill was “average”. In the summary table, his result was recorded as “below average”. Ms Schirmer said that this may have been a transcription error. Ms Schirmer conceded, in evidence, that Mr Carman may well have passed the treadmill fitness test.
Mr Lamont said that the Corporate Health Group developed the assessment and the reporting format in consultation with Torrens Transit. He said, in examination in chief:
…what we were looking to – I suppose, we were trying to get the Corporate Health Group to say to us, the person is fit for the job or not fit for the job; that’s what we were seeking to get from them. So they developed a proforma, it came back to us, we looked at it and I suppose at the end of the day it was my decision. I said yes or no; I had the final say.
Ms Schirmer, a physiotherapist with the Corporate Health Group, gave evidence about the process for the formulation of the assessment. She said that a “job analysis” for a bus operator was developed by an ergonomist, an occupational therapist and others some years ago. An updated version of this document, dated March 2007, was tendered as part of R1. Ms Schirmer also said that a draft guideline for the preparation of a pre-employment assessment produced by a Workplace Services working party was used in the preparation of the functional capacity assessment. Ms Schirmer said that an occupational therapist, Mr Ben Adcock, had produced the pre-employment functional assessment proforma, having regard to the job analysis and the Workplace Services draft guideline.
Mr Carman was informed of his failure to meet the standards required by the functional capacity assessment in a letter dated 24 March 2005 from Mr Lamont. The letter said, in part:
I refer to the Functional Capacity Assessment that you recently attended at the Corporate Health Clinic. As you are aware, you were required to perform a number of tasks to assess your ability to perform the duties of a bus driver.
Your performance was assessed in a number of categories and we have been advised that you failed to meet the requirements in relation to Range of Movement, Cardiovascular Fitness, Back Fitness and Grip Strength. Unfortunately, due to your inability to meet the inherent requirements of the position of bus operator, we are unable to offer you a job at this time.
In evidence, Mr Lamont said that his decision to reject Mr Carman’s application for employment was based upon the functional capacity assessment report. He said that if applicants passed the assessment, they were offered employment. However, if they failed any component, except for the treadmill test, they were rejected.
A short time after being rejected for employment by Torrens Transit, Mr Carman underwent a medical examination by his general practitioner for the renewal of his licence to drive a bus. He passed the examination and his licence was renewed.
Two reports of Dr John Meegan, an occupational physician, were tendered as part of exhibit C2, and Dr Meegan gave evidence. Dr Meegan had a full history of Mr Carman’s injuries and medical conditions. In his report of 27 May 2008, Dr Meegan said, by way of conclusion:
In summary despite the various conditions outlined in your letter and that he gave me by history at my last review and those documented in the functional assessment it did not appear to my assessment that he was unfit to undertake the duties of a bus driver and as evidence by his ability to do so with Serco and currently with similar employment on the Gold Coast.
In relation to the criteria used in the functional assessment to exclude him from the position of bus driver with Torrens Transit I would submit the following;
1. The right shoulder condition had settled without any ongoing effect and shoulder examination is currently normal.
2. There was some demonstrable left wrist weakness probably related to the left wrist fracture treated with internal fixation and possibly to mild residual weakness together with the left ring and middle paraesthesiae which appeared to my assessment to reflect the earlier history of probably C7 irritation on the left. However a degree of left wrist weakness had not inhibited his ability to be a bus driver and his right wrist is unaffected being the dominant side.
3. His right knee condition represented a non compensable strain which has subsequently resolved.
4. The poor back fitness rating does not reflect any current symptoms or limitation in back function and as outlined with some simple exercises he could improve back fitness and it did not appear a reason in my view to be limiting his ability to do the work of a bus driver particularly as he had already been carrying out that work without difficulty with his back and has subsequently done so on the Gold Coast.
5. His cardiovascular condition has been appropriately managed and is currently stable and is not limiting his ability to work as a bus driver.
In terms of your specific questions in relation to the equal opportunity act [sic] it appeared to me he was able to undertake the inherent requirements of the work as a bus driver and that by doing so he would not be endangering himself or others with any significant or unreasonable risk or such that he was unable to respond to emergency situations or such that he would be at risk of enlarging any physical defect with the duties of a bus driver.
In evidence, Dr Meegan was critical of the use of the functional capacity assessment performed by the Corporate Health Group in relation to Mr Carman as the decisive test of Mr Carman’s capacity to perform the duties of a bus operator. In Dr Meegan’s opinion, the functional capacity assessment was an appropriate first step in assessing a person’s capacity, but he believed that “another level of assessment”, which we took to mean a more detailed level of assessment, was appropriate before it could be concluded that an applicant was not fit to perform the duties of a bus operator. Dr Meegan emphasised that the history of the person was very important in the assessment. Dr Meegan outlined the occupational assessment process he helped set up at the Repatriation Hospital, which involved an occupational health nurse supervising an initial questionnaire and examination. If concerns were raised, then the applicant for employment would be referred to an occupational physician. Then, depending upon the circumstances, the physician might arrange a job analysis and a functional assessment and might liase with the applicant’s treating general practitioner or specialist doctor. An opportunity might be given to correct a condition causing concern, and the issue of whether the job could be modified might be examined. In short, where concerns are raised by the initial “screening” phase of an occupational assessment, Dr Meegan’s view was that the next step needed to be tailored to the individual applicant. Dr Meegan conceded that this process did not accommodate the need to assess several hundred applicants over a six week period.
In cross examination, Dr Meegan agreed that there were aspects of Mr Carman’s history and his performance on the functional capacity assessment which alerted him to the need for further enquiry. In particular, the fact that his grip strength was below normal for his age and gender range, and the fact that he had experienced an episode of back pain in 2004 required consideration. However, having regard to Mr Carman’s history, and the fact that he was driving buses up to 6 hours per day on a full time basis for Serco immediately prior to the functional capacity assessment, Dr Meegan’s overall conclusion was that he was not at high risk of injury when performing the duties of a bus operator.
The Equal Opportunity Act 1984 provides, in s 67(1):
It is unlawful for an employer to discriminate against a person on the ground of impairment –
(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.
We find that Torrens Transit discriminated against Mr Carman in the course of determining who should be offered employment. Torrens Transit rejected Mr Carman’s application for employment because of its understanding, from the Corporate Health report, of deficiencies in Mr Carman’s “Range of Movement, Cardiovascular Fitness, Back Fitness and Grip Strength” to quote the letter of 24 March 2005. In doing so, Torrens Transit contravened s 67(1)(a) of the Act.
Torrens Transit argued that its conduct came within the exemption provided for in s 71(2) of the Act, which provides:
This Division does not apply to discrimination on the ground of impairment in relation to employment if the person suffering from the impairment is not, or would not be, able –
(a)to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or
(b)to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question.
On the evidence before us, we do not consider that Torrens Transit had information or advice before it, at the time that the decision was made not to employ Mr Carman, from which it could reasonably have concluded that Mr Carman would not be able to perform adequately and without endangering himself or other persons the work of a bus operator, nor did Torrens Transit have an adequate basis for concluding that Mr Carman would not be able to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment of a bus operator. In short, Torrens Transit has not been able to bring itself within the exemption in s 71(2) of the Act. The evidence did not show a sufficient nexus between the results of the tests administered by Corporate Health and relied upon by Torrens Transit on the one hand, and the matters set out in s 71(2) on the other. Specifically, Torrens Transit cited, in its letter to Mr Carman, deficiencies in “Range of Movement, Cardiovascular Fitness, Back Fitness and Grip Strength”. Ms Schirmer asserted that the tests administered were based upon a job analysis report, but her evidence went no further than establishing that it was her understanding that the designers of the test were in possession of the job analysis. Ms Schirmer was not able to say whether, and, if so, on what basis, the risk of endangerment and the ability to respond in an emergency might have been taken into account in the design of the tests. Furthermore, some of the results of the tests were reported in a manner which was, at least, ambiguous. A deficiency in cardiovascular fitness was cited, but the “detailed assessment results” part of the Corporate Health Group report showed that Mr Carman had achieved an “average” fitness level on the treadmill test, though this was transcribed as “below average” in the summary. In “the detailed assessment results” the box entitled “Full Range of Movement” has been ticked for each body part and exercise, with notes saying “slight impingement rotation right shoulder”, “tightness in joints of hands”, “half squat performed”. “restricted tightness in hamstring” and “restricted tightness in knee joint”.
In the ‘Conclusion and Recommendation’ section of the Corporate Health Group report quoted above, it says that “the inherent physical requirements for the position of Bus Driver” have not been met. The nexus between the particular deficiencies exhibited by Mr Carman on the day of the test (some of which could partially be explained by his sprained knee), and his ability to perform the duties of a bus operator without endangering himself or others, and to respond adequately to emergencies, were not identified in the Corporate Health Group’s report to Torrens Transit. No evidence of such a nexus has been adduced before us. In relation to both back fitness and grip strength, Mr Carman’s results were compared to some normative data gathered for his age group and gender, by the Corporate Health Group, but the relationship between that data and the factors in s 71(2) of the Act has not been considered, much less established, on the evidence before us. We find that Mr Lamont did not assess the Corporate Health Group report having regard to the criteria in s 71(2) of the Act; he simply refused the application for employment if the requirements of any but the treadmill test were not met. We understand that the employment process was carried out under considerable time pressure, but this does not excuse non-compliance with the Act.
We do not consider that any evidence has come to light subsequent to the decision not to employ Mr Carman which, if known at the time of the decision, would have brought Torrens Transit within the exception in s 71(2) of the Act. To the contrary, Mr Carman’s continued employment as a bus operator with Surfside Buslines in Queensland from March 2006 and continuing, tends to bear out Dr Meegan’s opinion.
Remedy
The Act provides, in s 96:
(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a)an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising from the contravention;
(b)an order requiring the respondent to refrain from further contravention of the Act;
(c)an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention.
…
(3) The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
In his notice of particulars, Mr Carman sought the following remedies:
6. An apology in writing from the respondent.
7. That he receive compensation for injury to feelings, hurt and humiliation in the amount of $10,000.
8. That he receive compensation for the economic loss for the period of unemployment from April 2005 to May 2005 that he sustained as a result of the aforesaid discrimination by the respondent.
9. That he receive compensation for the economic loss sustained by him for the period of casual employment from May 2005 to May 2006 followed by casual employment from March 2006 to June 2006 and part-time employment from June 2006 to May 2007 and any reduction in income from May 2007 to the present time that he undertook subsequent to the discrimination by the respondent.
At the hearing, the issue of an apology was not pursued. In our view, an apology would be of no real value (see Forest v Queensland Health [2007] FCA 1236 at para 13.)
The parties both submitted that the proper approach to assessing Mr Carman’s pecuniary loss is to “compare the position in which the claimant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent” (see Gama v Qantas Airways No 2 [2006] FMCA 1767).
Torrens Transit, in its written submissions, argued as follows:
(a) In 1993, Mr Carman had made a claim for workers compensation alleging an injury to his lower back with pain extending into his right buttock and thigh. He had a period of time off work on workers compensation and a restriction on normal duties.
(b) surveillance video was obtained of Mr Carman and he was called into a disciplinary hearing to discuss the video surveillance in the context of his workers compensation claim.
(c) Mr Carman reports that his employer informed him that they intended to take the matter further. At his request, he was allowed the option of resigning and consenting to a discontinuance of his compensation claim;
(d) Mr Carman considered that the action against him was motivated by the manager, Mr Giannetta;
(e) Mr Lamont gave evidence that in about 1998, he was informed by Mr Giannetta that Mr Carman had been guilty of dishonesty in relation to a workers compensation claim;
(f) having met Mr Carman, he remembered that Mr Carman was the man about whom Mr Giannetta had spoken. In those circumstances, even had Mr Carman passed the pre-employment assessment, Mr Lamont would not have employed him because of his history of dishonesty. Mr Lamont indicated that it is important that he be able to trust his drivers and in circumstances of a history of dishonesty, he would not have sufficient trust in Mr Carman to have employed him;
(g) Mr Lamont indicated that it was sufficient for him that Mr Giannetta (who had personal knowledge of the circumstances of the resignation of Mr Carman) had asserted a belief in the dishonesty of Mr Carman, without Mr Lamont requiring more;
(h) accordingly, if Mr Lamont is believed to have evidence (and he was not challenged on it), even if it was established that Mr Carman had failed to secure employment with Torrens Transit as a result of unlawful discrimination, the fact is that he would not have obtained or retained employment with Torrens Transit in any event;
Mr Lamont gave evidence before us that he had met Mr Carman in about 1997 or 1998 when Mr Carman had his own buses and submitted a tender to do some work for Torrens Transit. It was in that context that Mr Lamont had a conversation with Mr Giannetta about Mr Carman. However, from Mr Lamont’s evidence, it is clear that he did not interview Mr Carman in relation to his application for employment with Torrens Transit in 2005. Mr Lamont indicated that he first saw Mr Carman in relation to that application in the conciliation process on 24 November 2005, and on that occasion he did not recognise him as the person he had met in 1997/8 in relation to the tender. There was no evidence that Mr Lamont would necessarily have met Mr Carman prior to offering him employment and having that offer accepted, had Mr Carman’s functional capacity assessment result been different. The evidence, therefore, does not support the submission that Mr Lamont would have identified Mr Carman as the person who was the subject of his 1997/8 conversation with Mr Giannetta, and would have had the opportunity to refuse to offer him employment on that basis.
Mr Carman gave evidence of his work history subsequent to being rejected for employment by Torrens Transit. He was unemployed for two weeks. He then worked for Adelaide Impressions, driving a hire car, from 6 May 2005 to 6 March 2006. Then he moved to Queensland/northern NSW to work for Surfside Buslines from 7 March 2006 to the time of trial and continuing. Mr Carman also gave evidence of unsuccessful attempts to gain employment in Adelaide as a bus operator. He said that he applied to Torrens Transit in late 2005, but Torrens Transit has no record of this application. He made a telephone call in 2005 to Adelaide Coachlines, but was told there were no positions. He did not consider pursuing any other line of work. Whilst we agree that the appropriate starting point for an assessment of damages is the comparison described in Gama’s case, quoted above, we bear in mind the fact that the discrimination in this matter was an event which deprived Mr Carman of an opportunity. It did not disable him. Our approach to the assessment of damages will differ from what it would be in an action for damages involving personal injury with an ongoing effect. Mr Carman retained the capacity to mitigate his loss. It does not seem to us, however, that his efforts to do so were as persistent or as wide ranging as they could have been.
A series of schedules was tendered in Mr Carman’s case providing financial information for use in the calculation of compensation for economic loss. The information was collated and prepared by Ms Fenton-Mare, who is a law clerk, using source documents such as pay slips and tax returns provided by Mr Carman. Ms Fenton-Mare’s task would have been a difficult one, bearing in mind that she has no accounting qualifications. In preparing the schedules, the approach has been taken of calculating the wages Mr Carman might have earned had he been employed by Torrens Transit from 23 April 2005 to 14 February 2009. It has been assumed in those calculations that Mr Carman would have worked a 38 hour week plus the minimum guaranteed two hours per week of overtime. In addition, it has been assumed that an extra 17.5% would have been earned as “regular overtime/penalty rates for weekend and after hours work”. Superannuation at 9% has been included, calculated on the 38 hour week plus two hours overtime per week. Living away from home expenses have been calculated.
The usefulness of the figures provided in the schedules is compromised by a number of factors. Leave loading has been applied to overtime on the Torrens Transit side of the equation, as has superannuation, contrary to the provisions of the applicable workplace agreement under the Workplace Relations Act 1996. The information with which Ms Fenton-Mare was provided by Mr Carman was not complete. It was clear from Mr Carman’s evidence that he did not initially work full-time for Surfside Buslines when he moved to Queensland. There was no indication on the evidence that he sought to supplement his part time income by pursuing any other employment. Information for the 2007/2008 financial year indicates that he worked for 160 days in that year. Mr Carman agreed in cross-examination that he does not work overtime for Surfside Buslines. He declined to explain these matters.
It seems to us that it is likely that Mr Carman has, at least since March 2006, made some lifestyle choices in relation to his working hours which have resulted in him omitting to mitigate his loss as effectively as he might have done. In relation to his claim for living away from home expenses, matters such as the purchase by his wife and him of a unit in the unit block in which he lives in northern NSW in February 2006 have not been brought into the equation.
In relation to the choices made by Mr Carman concerning his employment after his application to Torrens Transit was rejected, it is clear that factors other than the desire to mitigate his loss were influential. He did not pursue prospective engagement as a contractor with Des’ Minibuses, but chose instead to work for Adelaide Impressions, believing that he would enjoy the work more. His attempts to obtain work in South Australia have been desultory. These matters also affect his claim for living away from home expenses.
In all of the circumstances, on the basis of the less than full evidence on this issue, it seems to us that the amount of our award of compensation for economic loss must be arrived at with a more broadaxe approach than was argued for on the complainant’s behalf.
The ordinary wages earned by Mr Carman at Surfside Buslines are comparable to those he would have earned at Torrens Transit. We do not consider that it is appropriate to award compensation for lost overtime when Mr Carman declined to explain why he was not working overtime in Queensland. The difference between Mr Carman’s earnings with Adelaide Impressions and what Ms Fenton-Mare calculated he would have earned at Torrens Transit for the period from 23 April 2005 to 6 March 2006 amounted to $18,464.73 gross of tax. We consider that it is appropriate to discount this figure on account of Mr Carman’s failure to expend sufficient effort to mitigate his loss.
Judgment will be entered for the complainant. In relation to loss of earnings, we will award compensation in the sum of $12,000.
In relation to living away from home expenses, Mr Carman claimed $31,333.70. This included rent, airfares to and from Adelaide, utilities (including telephone), and the cost of running a motor vehicle. We do not consider that all of the expenses can fairly be attributable to the conduct of Torrens Transit. We believe that these expenses could have been ameliorated had Mr Carman chosen to deal with his situation in a different way. We will award compensation for living away from home expenses in the sum of $15,000.
In his evidence, Mr Carman expressed the hurt and humiliation he experienced as a result of being rejected for employment by Torrens Transit. He said he “felt like I was worthless and was being thrown to the scrapheap. For some time afterwards, I was very angry and upset at the situation I was in.” We will award the sum of $2,000 on account of injury to feelings.
There will be orders accordingly.
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