Clunes v Ambulance Service of NSW

[2006] NSWADT 103

CITATION:	Clunes v Ambulance Service of NSW [2006] NSWADT 103
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Robert Clunes RESPONDENT Ambulance Service of NSW
FILE NUMBER:	041134
HEARING DATES:	17/10/05
SUBMISSIONS CLOSED:	10/17/2005
DATE OF DECISION:	04/12/2006
BEFORE:	Rees N - Judicial Member; Hayes E - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Ambulance Services Act 1990 Anti-Discrimination Act 1977 Health Services Act 1987 Public Sector Employment Legislation Amendment Act 2006
CASES CITED:	Browne v NSW Ambulance Service [2004] NSWADT 192 Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5 Director General of Education v Breen [1982] IR 93
REPRESENTATION:	APPLICANT B Fogarty, solicitor RESPONDENT T Anderson, barrister
ORDERS:	1. Within 42 days of the date of this order the respondent must:; (a) take all necessary steps to process the applicant’s application for employment as a trainee ambulance officer without reference to the standard for colour vision which was previously applied to him and offer the applicant employment as a trainee ambulance officer if he satisfies all of the other selection criteria which are usually applied to a person who seeks employment as a trainee ambulance officer, ; (b) pay to the applicant the sum of $5000 by way of damages; 2. Within 14 days of the date of this order the applicant must file and serve upon the respondent written submissions in support of any application which the applicant proposes to make for costs; 3. Within 14 days of receiving any written submissions referred to in Order No 2 the respondent must file and serve any written submissions in response; 4. Both parties have liberty to apply to the Tribunal within 16 weeks of the date of this order for further orders pertaining to the operation of these orders.

Introduction

1 In this case the applicant, Mr Robert Clunes, claimed that the respondent, the Ambulance Service of NSW, unlawfully discriminated against him on the ground of disability in June 2003 by rejecting his application for a position as a trainee ambulance officer. The applicant claimed that he was rejected because he is a person with a colour vision deficiency.

2 Whilst the respondent denied that it had subjected the applicant to any unlawful discrimination, it did not offer any defence to Mr Clunes’ complaint. Instead, the respondent requested the Tribunal to delay making any findings and orders against it until it had the opportunity to implement new vision testing procedures for applicants to join the Ambulance Service. The respondent claimed that these new testing procedures were being devised in response to the Tribunal’s decision in a similar case, Browne v NSW Ambulance Service [2004] NSWADT 192.

3 The case was heard by the Tribunal in Sydney on 17 October 2005. Both parties were legally represented. Mr Fogarty (solicitor) represented the applicant and the respondent was represented by Ms Anderson (barrister).

The facts of the case

4 The events which caused the applicant to lodge a complaint against the respondent with the President of the Anti-Discrimination Board are not in dispute and may be stated briefly. This information is drawn from the report of the President of the ADB, the statement of Mr Robert Clunes, and a medical report from Dr Ross Ferrier. All of these documents were tendered without objection.

5 In January 2003 the applicant applied to the respondent for employment as a trainee ambulance officer. At this time, and until very recently, the respondent was a statutory authority established pursuant to the Ambulance Service Act 1990 (NSW). At the time of the application there were a number of steps in the process of becoming a trainee ambulance officer. By June 2003 the applicant had reached stage five of the recruitment process which involved a health assessment. Following an initial assessment by Health Services Australia which disclosed a number of errors on the Ishihara test, the applicant was required to submit to colour vision testing. A report from an optometrist, Ms Megan Drinan, to Health Services Australia revealed that the applicant had been subjected to a “medmont C-100 colour vision test”. Ms Drinan reported that the applicant “failed for a commercial drivers licence registering as a protan colour deficiency at – 3.5 on the scale”.

6 On 13 June 2003 Ms Desiree O’Brien, Recruitment Coordinator (Operations) with the Ambulance Service of NSW, wrote to the applicant and informed him that he had not satisfactorily completed the health assessment. Omitting formal parts, Ms O’Brien stated in her letter to Mr Clunes:

Thank you for your application for the position of Trainee Ambulance Officer.

Unfortunately I regret to inform you that your medical assessment has indicated that you are medically and physically unfit to perform the duties and requirements necessary for the position of Trainee Ambulance Officer due to:

failure to meet the Ambulance Service of NSW’s current colour vision standard

The Service’s current pre-placement health assessment standards for Trainee Ambulance Officers precludes employment of persons with red/green colour blindness. However, the Ambulance Service, in conjunction with an external consultant, is currently researching and reviewing our medical requirements in relation to this condition and we expect this process to be completed within 4 months.

We will keep your application ‘active’ and on file and advise you of the outcome once this review is complete.

7 Thereafter, the applicant sought, without success, to obtain more information from the respondent about the review of its medical requirements in relation to a colour vision standard. On 9 February 2004 the applicant lodged with the ADB the complaint which is the subject of these proceedings. That complaint was subsequently referred to the respondent for comment. In a response to the ADB, dated 23 June 2004, Mr Russell Cruikshank, Manager, Human Resources Unit, Ambulance Service of NSW, stated:

Our pre-placement health assessment is a comprehensive one which is carefully designed to ensure that applicants are sufficiently physically and medically fit to carry out frontline ambulance duties. As a matter of procedure, all applicants colour vision status is tested and this is linked to the inherent requirements of the Trainee Ambulance Officer position. Applicants with red colour blindness (protan) are not offered employment due to increased risks associated with driving under lights and sirens, as well as the varied environments where clinical treatment is provided. In relation to driving requirements, this was supported by the Medical Standards for Commercial Drivers from the National Road and Transport Commission (see Attachment 1).

In addition, our pre-placement health assessor advises that at present there are no available workplace adjustments to support individuals assessed with a colour vision deficit.

You would, no doubt, be aware that the Ambulance Service of NSW is currently awaiting a decision in another matter relating to colour vision, before the Equal Opportunity Division of the Administrative Decisions Tribunal. Once this decision is known, the service will be in a better position to review its policy in relation to pre-placement health assessments for colour vision. This review will also occur with regard to the new medical guidelines entitled “Assessing Fitness To Drive, Medical standards for licensing and clinical management guidelines” issued in September 2003 (Attachment 2).

8 It was not in dispute that the national “Assessing Fitness to Drive” guidelines, which were referred to in Mr Cruikshank’s letter to the ADB, removed all restrictions on the issue of driving licences to people with colour blindness because “there is no unequivocal evidence that colour blind drivers are less safe drivers”. It was also not in dispute that the case referred to in Mr Cruikshank’s letter was Browne v NSWAmbulance Service [2004] NSWADT 192.

9 The Tribunal handed down its decision in Browne v NSWAmbulance Service on 3 September 2004. In that case, which was similar to the present, the applicant was denied employment as a trainee ambulance officer and as a trainee patient transport officer because of his colour blindness. After a lengthy hearing in which both parties were represented by counsel, and both parties led evidence from experts in the fields of visual disorders and standards, the Tribunal found Mr Browne’s complaint of unlawful discrimination on the ground of disability to be substantiated. Unlike this case, the respondent contested the claim of unlawful discrimination because it asserted that Mr Browne’s colour-blindness rendered him unable to perform the inherent requirements of the position of trainee ambulance officer. The Tribunal was not satisfied that the respondent had made out its claim that Mr Browne was unable to perform the ‘inherent requirements’ of the two jobs in question.

10 The Tribunal made two orders in favour of the applicant in Browne v NSWAmbulance Service. It ordered the respondent “to process the Applicant’s application for employment” and it also ordered the respondent to pay the applicant’s costs. The background to the order that the respondent process Mr Browne’s application for employment was explained by the Tribunal in paragraphs [186] and [187] of its Reasons for Decision when it stated:

[186] The Tribunal is of the view that the Applicant should be given the opportunity to demonstrate whether or not he is able to carry out the inherent requirements of the positions. The Tribunal is of the view that the Applicant should either undergo practical testing in a clinical setting, testing those matters identified by William Donaldson as being of concern and some practical testing of his driving in adverse conditions. It is noted in this regard that although Associate Professor Dain recommended against practical testing he conceded that “fully validated tests are a viable possibility” and that he had devised some tests for the NSW Fire Brigades.

[187] If practical testing is not considered appropriate then the Tribunal is of the view that the Applicant should be given the opportunity to see if he can do the job by being offered employment by the Respondent and undergoing the training/probationary period. It is noted that during the training period the Trainee is supervised and only goes on the road after seven weeks of training but with a trainer. The Trainee then spends 33 weeks training on the road with a trainer, during which time the Applicant’s suitability and ability to perform the functions of the job can be assessed.

11 In this case the respondent did not raise the ‘inherent requirements’ defence. In the Points of Defence the respondent referred to paragraph [186] of the Tribunal’s Reasons for Decision in Browne v NSWAmbulance Service and then went on to assert that following Browne it “advertised for potential tenderers to submit proposals for the development of a colour vision testing process to be used in assessing suitability for employment in positions of, inter alia, ambulance officer”. The respondent also recorded in the Points of Defence that the successful tenderer was the University of NSW and that on 14 April 2005 it entered into an agreement with that University to (i) identify colour vision requirements for a range of operational positions in the Ambulance Service, (ii) develop practical tests to assess an applicant’s suitability for employment and (iii) to report on what reasonable workplace adjustments could be made where existing employees are found to have a colour vision deficiency. Ms Anderson tendered without objection a copy of the newspaper advertisement which called for potential tenderers to submit proposals “for the Provision of a Colour Vision Testing Methodology to Determine Suitability for Employment” and a copy of the information package which was provided to potential tenderers.

Liability

12 Section 49D(1)(b) of the Anti-Discrimination Act 1977 (NSW) (the Act) renders it “unlawful for an employer to discriminate against a person on the ground of disability in determining who should be offered employment”. As the Tribunal pointed out in Johnson v Commissioner of Police, NSW Police [2004] NSWADT 198, in order for an applicant to succeed in a complaint based on a contravention of s 49D(1)(b) of the Act it is necessary for the Tribunal to be satisfied that following material facts existed or occurred at the time the respondent is alleged to have breached the Act: (1) the respondent was an employer within the meaning of the Act, (2) the applicant had a disability within the meaning of the Act, (3) the applicant was a person who sought employment with the respondent, and (4) when determining whether to offer the applicant employment the respondent discriminated against him/her on the ground of his/her disability. It is open to the respondent to rely upon any of the defences or exceptions set out in the Act.

13 We are satisfied that all four elements of the applicant’s complaint under s 49D(1)(b) of the Act are made out in this case. Despite the fact that the respondent stated in paragraph 6 of its Points of Defence that it “denies that it has subjected the Applicant to unlawful discrimination within the meaning of the Anti-Discrimination Act 1977” it did not identify which element of the complaint under s 49D(1)(b) was not satisfied in this case and it did not seek to rely upon any of the defences or exceptions to liability set out in the Act.

14 At the time the applicant applied to the respondent for appointment to the position of trainee ambulance officer in January 2003, and at the time Ms O’Brien (who was an employee or agent of the respondent) wrote to the applicant in June 2003 to inform him that his application was rejected, the respondent was an employer within the meaning of the Act. At all relevant times the respondent was a statutory corporation established pursuant to the Ambulance Services Act1990 (NSW). The respondent was established as a statutory corporation by s 4 of that Act and it was given express power by s 13 of the Act to “appoint and employ such employees as may be necessary for the purpose of exercising its functions”. Whilst the Ambulance Services Act1990 has recently been repealed by s 8 of the Public Sector Employment Legislation Amendment Act 2006 (NSW) this action does not affect the liability of the respondent for events which occurred in 2003.

15 It was not in dispute that the applicant has a “disability” within the meaning of the Act. In Ms Drinan’s report to Health Services Australia, which was the optometrist’s report relied upon by the respondent to reject Mr Clunes’ application for employment, the applicant was said to have “a protan colour deficiency”. A later report by Dr Ross Ferrier, an ophthalmic surgeon, states that the applicant has a “strong Deutan red/green colour deficiency”. The respondent did not dispute the applicant’s assertion that he has deuteranopia which is a form of what is colloquially known as colour blindness. This condition falls within both paragraph (a) of the definition of “disability” in s 4 of the Act because it represents a “total or partial loss of a person’s bodily or mental functions” and paragraph (c) of the same definition because it is a “malfunction…of a part of a person’s body”.

16 The third element of a complaint under s 49D(1)(b) of the Act was not in dispute because it was clear that the applicant had applied to the respondent for employment. The fourth element is given meaning by s 49B of the Act which defines “discrimination on the ground of disability”. Section 49B contains definitions of what are generally known as direct discrimination and indirect discrimination. Whilst Mr Fogarty presented his case as one involving both direct and indirect discrimination it is unnecessary to consider the indirect discrimination claim given the conclusion we have reached about the direct discrimination claim.

17 Direct discrimination on the ground of disability is dealt with in s 49B(1)(a) of the Act. There are two elements to the statutory definition of direct discrimination: differential treatment and causation (see Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5). Differential treatment is the shorthand term given to that part of the statutory definition of direct discrimination which is concerned with establishing whether the respondent treated the applicant less favourably than he treated, or would have treated, a person who did not have the applicant’s disability in the same or similar circumstances. Causation is a descriptive term used to describe the grounds or reasons for any differential treatment. In the words of the statute, it is necessary to consider whether the respondent treated the applicant as he did on the ground of the applicant’s disability. The applicant’s disability must have had a “causally operative effect” (Street CJ in Director General of Education v Breen [1982] IR 93 at 95) upon the decision by the respondent to afford the applicant differential treatment in order for there to be a finding that the respondent treated the applicant as he did on the ground of the applicant’s disability. If there were numerous reasons for the respondent’s impugned conduct, the applicant’s disability need be only one of those reasons in order for it to have had a causally operative effect upon that conduct. It is not necessary to establish that the applicant’s disability was a dominant or substantial reason for the respondent’s impugned conduct (see s 4A of the Act).

18 The elements of differential treatment and causation are made out in this case. It is quite clear from the letter which Ms O’Brien wrote to the applicant on 13 June 2003 that he was treated less favourably than a similarly placed person without his disability would have been treated when the respondent rejected his application for employment. It is also clear from that letter that the ground or reason for the differential treatment was the applicant’s disability. Ms O’Brien informed the applicant that he was rejected because of his “failure to meet the Ambulance Service of NSW’s current colour vision standard”.

19 This analysis leads to the conclusion that, in the absence of any defence or statutory exception to liability, the Tribunal must find that the respondent unlawfully discriminated against the applicant on the ground of disability in contravention of s 49D(1)(b) of the Act when it rejected his application for employment on 13 June 2003. Counsel for the respondent, Ms Anderson, did not seek to rely upon any defence or statutory exception to liability despite the fact that in June 2004 when Mr Cruikshank, the respondent’s Human Resources Unit Manager, wrote to the ADB he clearly indicated that the respondent was then of the view that the applicant was unable to perform the inherent requirements of the job for which he was an applicant. That letter was reproduced, in part, in paragraph [7] of these reasons.

20 In essence the respondent asked the Tribunal to delay making any findings or orders in this case until it had received the report from the University of NSW concerning new colour vision testing processes. There is nothing in the Act which permits the Tribunal to delay dealing with a complaint whilst an employer seeks to put in place new processes which may assist it to comply with the Act. It is possible for a person to apply to the Attorney General and the ADB pursuant to s 126 of the Act for an exemption from the Act. We were not presented with any evidence that the respondent had made an application for exemption whilst it was awaiting the report concerning new colour vision testing processes.

21 We are satisfied that the applicant’s complaint against the respondent of unlawful discrimination on the ground of disability is substantiated.

Remedies

22 The applicant sought orders that he be offered employment by the respondent, that he be paid the sum of $10,000 by way of damages for non-economic loss and that the respondent pay his costs. The respondent opposed all of these orders.

23 The Tribunal’s remedial powers are set out in s 108(2) of the Act. The Tribunal clearly has the power to order that the respondent employ the applicant (s 108(2)(c)) and the power to order the respondent to pay the applicant damages in order to compensate him for any loss or damage he has sustained by reason of the respondent’s conduct (s 108(2)(a)). The broad power in s 108(2)(c) to make an order in the nature of an injunction is sometimes supplemented by the power in s 108(2)(b) to “make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations”. The Tribunal is given the power by s 110(2) of the Act to make an order for costs when there are circumstances which justify it doing so.

24 The respondent must be required to deal with Mr Clunes’ application for employment in the same way as it would deal with a similarly placed job applicant who did not have deuteranopia. The respondent has not sought to argue that Mr Clunes’ deuteranopia rendered him ineligible for the position of trainee ambulance officer because he could not perform the inherent requirements of the job. Mr Clunes’ deuteranopia must be treated as an irrelevant consideration when his application for employment is processed.

25 We cannot, however, simply order the respondent to employ the applicant because there are a number of matters which must be taken into consideration by the respondent before it determines whether to employ a person as trainee ambulance officer. In his evidence to the Tribunal the applicant recorded that he had “proceeded to Stage Five of the recruitment process”. The Tribunal was not supplied with detailed evidence concerning any further stages in the recruitment process. It is not clear whether some of the earlier stages of the recruitment process may need to be re-visited because of the effluxion of time since Mr Clunes lodged his application for employment. Consequently, the respondent must be granted a reasonable period of time during which to deal with Mr Clunes’ application for employment by applying the same processes to him as it does to other applicants save for the colour vision standard which it used to exclude him on 13 June 2003. If Mr Clunes satisfies the selection criteria applied to all applicants, other than the colour vision standard which was used to exclude him, he must be offered employment as a trainee ambulance officer. Six weeks is a reasonable period of time during which the respondent must complete its consideration of Mr Clunes’ application for employment as a trainee ambulance officer. Order 1(a) is designed to produce the outcome which has been considered in this paragraph.

26 As orders of this nature can sometimes prove difficult to implement because unforeseen eventualities arise, it is appropriate that the Tribunal retain supervision of the complaint until its orders are implemented. An important event which may require further consideration was referred to in paragraph [14] of these Reasons. The statutory scheme which governs the respondent’s activities has been substantially amended because the Ambulance Services Act 1990 (NSW) was repealed by s 8 of the Public Sector Employment Legislation Amendment Act 2006 on 16 March 2006. The Ambulance Service of NSW is now governed by Chapter 5A of the Health Services Act 1987. Whilst this legislation makes substantial changes to the nature of the Ambulance Service of NSW, and to the employment status of those people who work for the Ambulance Service, it can reasonably be expected that responsible public officials will take appropriate steps to comply with the orders of the Tribunal. In the event that these statutory changes produce unforeseen difficulties, or if it proves difficult to implement any of the Tribunal’s orders, the parties should be permitted to apply to re-list the matter in order to properly inform the Tribunal of these matters. Order 4 permits either party to return to the Tribunal within the next 16 weeks for further orders pertaining to the operation of these orders.

27 The applicant has also sought an order for damages for non-economic loss. No claim has been made for damages for economic loss. Mr Clunes’ claimed to have suffered considerable stress and frustration as a result of the respondent’s actions. In addition, the applicant’s opportunity to pursue a career as an ambulance officer has been substantially delayed by the respondent’s actions.

28 In this case the applicant expended a considerable amount of time and effort pursuing his goal to become an ambulance officer. His application for employment was summarily rejected by the respondent in June 2003. Thereafter, the respondent failed to honour its promise that it would keep the applicant informed of the process of its review of colour vision standards. In the circumstances, and bearing in mind the awards made in other cases where the claims were similar, we believe that $5000 is a fair and reasonable figure to compensate Mr Clunes for his damage. Order 1(b) gives effect to this determination concerning damages.

29 The applicant has also sought an order for his costs. As the respondent was not informed of this application prior to the hearing date, the determination of this matter must be delayed until the respondent has had an opportunity to consider the applicant’s arguments in favour of a costs order and to respond if it wishes to do so. Orders 2 and 3 are designed to deal with the issue of costs if the applicant chooses to proceed with his application. Unless either party seeks an oral hearing concerning costs, and advances good reasons why there should be such a hearing, the issue of costs will be determined by the Tribunal after considering the written submissions filed by the parties.

Decision and orders

30 As we have already noted, the decision of the Tribunal is that the complaint is substantiated. The Tribunal makes the following orders:

1. Within 42 days of the date of this order the respondent must:
(a) take all necessary steps to process the applicant’s application for employment as a trainee ambulance officer without reference to the standard for colour vision which was previously applied to him and offer the applicant employment as a trainee ambulance officer if he satisfies all of the other selection criteria which are usually applied to a person who seeks employment as a trainee ambulance officer,

(b) pay to the applicant the sum of $5000 by way of damages

2. Within 14 days of the date of this order the applicant must file and serve upon the respondent written submissions in support of any application which the applicant proposes to make for costs.

3. Within 14 days of receiving any written submissions referred to in Order No 2 the respondent must file and serve any written submissions in response.

4. Both parties have liberty to apply to the Tribunal within 16 weeks of the date of this order for further orders pertaining to the operation of these orders.