Collier v Austin Health
[2011] VSC 344
•27 July 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2009 6236
| MARY COLLIER | Appellant |
| v | |
| AUSTIN HEALTH | First respondent |
| ARTHUR DIMBLE | Second respondent |
| GUY CHATAIN | Third respondent |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2011 | |
DATE OF JUDGMENT: | 27 July 2011 | |
CASE MAY BE CITED AS: | Collier v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 344 | |
ADMINISTRATIVE LAW – appeal on question of law – Victorian Civil and Administrative Tribunal – disability discrimination claim – summary dismissal - employee recovered from work-related illness and ready, willing and able to work - employer failing to provide return to work and rehabilitation on grounds of impairment and dismissing employee – whether prohibited discrimination on basis of attribute of impairment – identifying proper comparator – statutory interpretation – anti-discrimination legislation – applicable principles – ‘impairment’ – ‘without that attribute’ - whether satisfied by someone without complainant’s particular attribute – Equal Opportunity Act 1995 (Vic), ss 4(1), 8(1), 14 – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1).
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HUMAN RIGHTS – disability discrimination claim – facts and circumstances happening before Charter came into force – statutory interpretation – whether principle of interpretation in Charter applies – interpreting anti-discrimination legislation – principle of liberal interpretation - Equal Opportunity Act 1995 (Vic), ss 4(1), 8(1), 14 – Charter of Human Rights and Equal Opportunity Act 2006 (Vic), ss 2, 32(1), 49.
APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr B Walters SC with Mr C Smale | Saines Lucas, solicitors |
| For the respondents | Mr N Green QC with Mr P Ginnane | Monahan & Rowell, lawyers |
HIS HONOUR:
INTRODUCTION
Mary Collier was a food services worker at the Austin Hospital for ten years. Despite suffering from bipolar disorder, she carried out the duties of her employment and was promoted to the position of assistant manager in 1998.
In early 2004 and again in late 2005, Ms Collier was placed under such unreasonable pressure and hours of work that her health broke down. She spent nearly two months in hospital on each occasion. The hospital accepted responsibility and made the workers compensation payments for which they were liable
As a large employer, the hospital had programs for rehabilitating sick and injured workers and gradually returning them to work on suitable duties. After recovering from the first breakdown, Ms Collier returned to work on this basis. After recovering from the second, she sought to do so again. Her private doctor and the hospital’s doctor both certified she was fit to do so.
The hospital refused to place Ms Collier on a return to work program. It refused to give her any work. In December 2006, it terminated her employment. At all material times, she was fit, willing and able for graduated return to work. An internal email written shortly after the termination said it was best to get Ms Collier ‘off Austin’s books’ rather than ‘rehabilitate her’.
The Equal Opportunity Act 1995 (Vic) prohibits discrimination against an employee on the basis of impairment, including mental illness. The discrimination test requires a comparison between the treatment of the complainant and someone without the impairment in the same or similar circumstances.
Ms Collier’s discrimination claim was summarily dismissed by the Victorian Civil and Administrative Tribunal. On its interpretation of the Equal Opportunity Act, there was no prohibition because, in this kind of case, it was impossible to identify a suitable comparator. It found the email made no difference. In both respects, says Ms Collier in this appeal, the tribunal erred in law.
GROUNDS OF APPEAL
The order of the tribunal was that Ms Collier’s complaint be dismissed pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It was s 75(1)(a) which was applicable. That provision allowed the tribunal to make an order summarily dismissing Ms Collier’s complaint if it was ‘frivolous, vexatious, misconceived or lacking in substance’. In the tribunal’s view, her complaint was ‘both misconceived and lacking in substance’.
Ms Collier appeals from that order under s 148(1) of the Victorian Civil and Administrative Tribunal Act ‘on a question of law’. Such an appeal can only be brought if the court gives leave to appeal. In a thoughtful judgment, leave was given by Lansdowne AsJ.
As specified in Ms Collier’s further amended notice of appeal, the questions of law upon which the appeal has brought are:
1Did the Tribunal err by holding that the complainant was unable to show that there is a proper comparator to the complainant to be found pursuant to s 8 of the Equal Opportunity Act 1995?
2Did the Tribunal err by holding that from the very moment that any attempt is made to identify the necessary comparator for a claim of direct discrimination the complainant runs into an insurmountable obstacle?
3Did the Tribunal err by holding that no hypothetical comparator can be found with whom to compare the complainant?
4Did the Tribunal err by holding that the email dated 4 January from Mr Colin Schleiger to Mr John Breguet could not amount to evidence of discrimination on the grounds that it accepted the Defendants’ submission that the correct comparison was between the Applicant and a person with no impairment, rather than with a person with a different impairment?
The grounds of appeal are that the complaint should not have been summarily dismissed because there was evidence on which it could been upheld.
Austin Health is the operator of the hospital which employed Ms Collier. Arthur Dimble was the worker’s compensation manager and coordinator of return to work and rehabilitation programs. Guy Chatain was the food services manager.
At my direction, Ms Collier served notice on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under s 35(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) of questions arising with respect to the application and interpretation of the Charter. That gives rise to a question whether the Charter applies in this case, which I will now consider.
CHARTER DOES NOT APPLY
The respondents submitted the Charter did not apply because the facts behind the complaint happened before it commenced. Ms Collier submitted it applied because the appeal proceeding in the court commenced after the Charter commenced.
The relevance of the application of the Charter is that s 32(1) requires all statutory provisions to be interpreted compatibly with human rights so far as it is possible to do so consistently with their purpose. If the Charter applies, s 32(1) would apply to the interpretation the provisions of the Equal Opportunity Act which are in issue.
Section 49 of the Charter contains these transitional provisions:
(1)This Charter extends and applies to all Acts, whether passed before or after of the commencement of Part 2, and all subordinate instruments, whether made before or after that commencement. (1 January 2007)
(2)This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2. (1 January 2007)
(3)Division 4 or Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division. (1 January 2008)
For ease of reference, I have inserted in italics the relevant commencement dates.
The commencement of the Charter is governed by s 2, which provides:
(1)This Charter (except Divisions 3 and 4 of Part 3) comes into operation on 1 January 2007.
(2)Divisions 3 and 4 of Part 3 came into operation on 1 January 2008.
Section 32(1) is in Division 3 of Part 3. By s 2(2), it came into operation on 1 January 2008. Ms Collier’s appeal was commenced after that date (on 28 April 2009).
However, the critical consideration for the application of the Charter in this case is not when the appeal was commenced but when the facts in issue happened. The facts in issue happened during the course of Ms Collier’s employment with the hospital from about 2004 until she was dismissed on 8 December 2006. That was before the commencement of any provision of the Charter.
I cannot characterise Ms Collier’s complaint as encompassing a claim for continuing discrimination so as to bring the Charter into potential application. Her claim for compensation in respect of future loss of earnings is for compensation arising out of the alleged pre-Charter acts of discrimination. Further, the email dated 4 January 2007 on which she relies (see below) is not an act of discrimination in itself but sheds light in an evidentiary sense on the alleged discriminatory character of the dismissal which occurred on 8 December 2006.
As I held in Re Kracke and Mental Health Review Board,[1] s 32(1) of the Charter ‘applies to the interpretation of all Victorian statutory provisions[2] whenever made and whoever is doing the interpreting’. In a case to which s 32(1) applies, that includes the Equal Opportunity Act, which was enacted in 1995 before the enactment of the Charter.
[1](2009) 29 VAR 1, [337].
[2]‘Statutory provision’ is defined in s 3(1) to mean primary and subordinate legislation, including the charter.
However, as I also held in Re Kracke and Mental Health Review Board,[3] the general presumption against the retrospective operation of statutory provisions prevents s 32(1) from applying so as to alter the fixed legal character of events which happened before the commencement of the Charter, or legal relations, obligations or liabilities which were likewise fixed on the happening before that commencement of such events. According to the authorities which I analysed in that case,[4] that is the clear and settled position in the United Kingdom under the Human Rights Act 1998 (UK). It is the same here.
[3](2009) 29 VAR 1, [365].
[4]Ibid [350]-[355].
As all of the facts in issue in this case happened before the commencement of the Charter, the legal relations, responsibilities and liabilities (if any) of the hospital and its two managers towards Ms Collier arising out of those facts are to be ascertained from the proper interpretation of the provisions of the Equal Opportunity Act without the application of s 32(1) of the Charter. That was the position in the substantive proceeding in the tribunal and it is the position in the appeal proceeding in this court.[5] Nothing in the transitional provisions in s 49(1)-(4) indicates or requires otherwise.
[5]Victoria v Turner (2009) 23 VR 110, [267]-[268] (Kyrou J).
That brings me to the prohibition against discrimination in the Equal Opportunity Act.
PROHIBITED DISCRIMINATION
Anti-discrimination legislation gives effect to human rights principles which are of fundamental importance to individuals, society and democracy. In the words of Baroness Hale in Ghaidan v Godin-Mendoza,[6] ‘[d]emocracy is founded on the principle that each individual has an equal value.’ That equality is indispensable to the rule of law which is the foundation of our constitutional and governmental arrangements. It is built on the bedrock value that everyone without exception has a unique human dignity which is their birthright. In the words of Judge Tanaka in the South West Africa Cases (Second Phase), ‘all human beings have an equal value in themselves, [and] they are the aim itself and not the means of others’.[7]
[6][2004] 2 AC 557, [132].
[7][1996] 1 ICJR 6, 297.
Following the statement of those and related principles in arts 2 and 7 of the Universal Declaration of Human Rights,[8] protection from and against discrimination was specified as a general human right in art 26 of the International Covenant on Civil and Political Rights.[9] Various conventions went on to specify that protection as a particular human right in given contexts, and they have influenced Australian anti-discrimination law. For example, art 2(1) of the International Convention on the Elimination of all forms of Racial Discrimination,[10] art 2 of the Convention on all forms of Discrimination against Women[11] and art 5(1) of the Convention on the Rights of Persons with Disabilities[12] prohibit or condemn discrimination on grounds of race, against women and on grounds of disability respectively and require preventative action to be taken to provide equal and effective protection against it.
[8]GA Res 217A (III), UN Doc A/810 at 71 (1948).
[9]Opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976).
[10]Opened for signature 21 December 1965, 660 UNTS 1956 (entered into force 4 January 1969). The convention is the schedule to the Racial Discrimination Act 1975 (Cth).
[11]Opened for signature 18 December 1979, 1 UNTS 1249 (entered into force 3 September 1981). The convention is the schedule to the Sex Discrimination Act 1984 (Cth).
[12]Opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008). The convention is referred to in the Disability Discrimination Act 1992 (Cth) (as amended).
Reflecting such principles, anti-discrimination legislation provides individuals with the measure of specified protection and a remedy where there has been a breach. For example, the objectives of the Equal Opportunity Act are to promote equal treatment, eliminate discrimination as far as possible and provide protection against it.[13] So important are these principles that, in the manner and to the extent specified, the provisions legislate for norms of treatment and behaviour regulating the relations of people not just with their government but also with each other.
[13]Section 3 of the Equal Opportunity Act specifies these objectives:
(a)to promote recognition and acceptance of everyone’s right to equality of opportunity;
(b)to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;…
As we will see, the Equal Opportunity Act prohibits discrimination on the basis of specified attributes, including the attribute of impairment. Discrimination has insidious individual effects and harmful social consequences. As I have said previously,[14] to treat someone to their detriment on the basis of an attribute, such as race, gender or disability, is to act on the basis of stereotypical assumptions about them and their behaviour. It is not to act rationally on the basis of their individual worth and merit, but to act arbitrarily on the basis of a negative stigma which is attached to the attribute. The individual is left with feelings of pain, distress, personal injury and damaged self-worth. Depending on its nature and the circumstances, the discrimination can have serious physical, social or economic consequences for the wellbeing of the individual and their families. Most of all, it assaults the dignity which is the essence of their humanity. The consequences go beyond the individual. Returning to Baroness Hale in Ghaidan v Godin-Mendoza,[15] discrimination ‘is damaging to society as a whole.’ The harmful social consequences consist, among other things, in the damage which discrimination does to social cohesion and the wellbeing of the community, the financial and other costs of having and resolving discrimination disputes and the reduced or lost contribution of the complainant in the area of endeavour concerned.
[14]Lifestyle Communities Ltd (No3) [2009] VCAT 1869, [109].
[15][2004] 2 AC 557, [132].
The complaint which Ms Collier made in this case raises the application of the Equal Opportunity Act in two important contexts, once concerning the basis of the discrimination – disability (mental illness) - and the other concerning the relation in which the alleged discrimination took place – employment. Each deserve particular attention.
The complainant alleges discrimination against a person with a mental illness (herself) on the basis of that disability. People with mental illness are extremely vulnerable to discrimination on this basis. Unfortunately, many people in society make unjustified stereotypical assumptions about the capacity and behaviour of people with a mental illness. It is an object of the Convention on the Rights of Persons with Disabilities[16] to promote respect for the inherent dignity of people with a mental illness (and other disabled people). A purpose of the Equal Opportunity Act is to eliminate discrimination against them (and others),[17] which it does by prohibiting that discrimination in specified ways and providing a remedy for the breach of the prohibition.[18] At issue in this case in the scope of that prohibition.
[16]Article 1.
[17]Section 3(b).
[18]See ss 6(b), 7, 8, 14 and 136.
The complainant alleges discrimination in the workplace. The discrimination alleged is less favourable treatment and dismissal on the basis of disability. Just as people with mental illness are a vulnerable category of persons, so sick and injured workers are a vulnerable category of persons. Given that vulnerability and the significance of work for individuals and families in modern society, the provisions of the Equal Opportunity Act prohibiting discrimination against workers on the basis of disability have especially important purposes. There was once a time when sick and injured workers could be discarded by their employer on that ground alone. A euphemism for that is getting the worker ‘off the books’. Ms Collier alleges the hospital did this to her. A high public policy purpose of the legislation is to prevent this from happening as far as possible and to provide redress when it does.
I refer to the values and purposes of anti-discrimination legislation generally and the Equal Opportunity Act specifically as these are relevant to the central issue in this case – statutory interpretation. The Equal Opportunity Act is specific human rights legislation and is to be interpreted as such. That principle was stated in Waters v Public Transport Corporation[19] by Mason CJ and Gaudron J: ‘the principle that requires that the particular provisions of the [Equal Opportunity]Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights.’[20] Explaining and applying that principle, this is Dawson and Gaudron JJ in IW v City of Perth:[21] ‘In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account and give effect to [its] purpose”.[22] For this reason, the provisions … should be construed as widely as their terms permit.’ In the same case, and after referring to the equivalent of s 35 (a) of the Interpretation of Legislation Act 1984 (Vic), Brennan CJ and McHugh J said that equal opportunity legislation was ‘beneficial and remedial’ and therefore was ‘to be given a liberal construction. It is to be given “a fair, large and liberal” [23] interpretation rather than one which is “literal or technical”’.[24] Kirby J said:[25] ‘Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.’[26]
[19](1991) 173 CLR 349.
[20]Ibid, 359.
[21](1997) 191 CLR 1, 22.
[22]Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J). See also 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-407 (McHugh J).
[23]West v AGC (Advances) Ltd (1986) 5 NSWLR 610, 631 (McHugh JA).
[24]Coburn v Human Rights Commission [1994] 3 NZLR 323, 333 (Thorp J).
[25](1997) 191 CLR 1, 58.
[26]Cf Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J); Street v Queensland Bar Association (1989) 168 CLR 461, 571 (Gaudron J).
The principle does not permit the interpretation of the provisions to go beyond what their language can bear. As Brennan CJ and McHugh J said in IW v City of Perth:[27] ‘Although a provision … must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.’ By the cautionary note sounded in Purvis v New South Wales[28] and later New South Wales v Amery,[29] nor should the application of the principle allow the consideration of the purpose of the legislation, or general statements of principle in relevant international materials, to divert the court from giving careful attention to the text of the provisions, for it is in that text that the particular method chosen by the legislature to achieve the purpose can be ascertained.
[27](1997) 191 CLR 1, 12.
[28](2003) 217 CLR 92, [197]-[207] (Gummow, Hayne and Heydon JJ, Callinan J agreeing).
[29](2006) 230 CLR 174, [28] (Gummow, Hayne and Crennan JJ); cf [88] ff (Kirby J).
That brings me to Part 2 of the Equal Opportunity Act, which prohibits certain discrimination in particular terms. Section 6 specifies the attributes on the basis of which discrimination is prohibited. Among those attributes are attributes which everybody has, such as ‘age’ (par (a)), ‘physical features’ (par f)) and ‘sex’ (par (k)). Other specified attributes are not universal, including ‘impairment’ (par (b)). Section 4(1) contains a definition of impairment. As it is important in this case, I will set it out in full:
impairment means-
(a) total or partial loss of a bodily function;
(b) the presence in the body of organisms that may cause disease;
(c) total or partial loss of a part of the body;
(d) malfunction of a part of the body, including –
(i) a mental or psychological disease or disorder;
(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder;
(e) malformation or disfigurement of a part of the body
Section 7(1) provides that discrimination means ‘direct or indirect discrimination on the basis of an attribute’. Section 7(2) elaborates on that provision, and was not relied on in this case.
It is direct discrimination which is relevant. Section 8(1) and (2) specify when direct discrimination occurs:
(1)Direct discrimination occurs if a person treats or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2)In determining whether a person directly discriminates it is irrelevant –
(a)whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b)whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
By s 10, a person’s motive is irrelevant in determining whether or not they have discriminated against another person.
Part 3 specifies when discrimination is prohibited. Division 1 prohibits various kinds of discrimination in employment. Ms Collier relied on s 14. By that section, an employer must not discriminate against an employee in the following ways:
(a)by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;
(b)by dismissing the employee or otherwise terminating his or her employment;
(c)by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;
(d)by subjecting the employee to any other detriment.
It was Ms Collier’s case that there was evidence on which the tribunal could uphold her claim that the hospital and its managers discriminated against her contrary to s 14. I go now to the basis on which she puts that case.
BASIS OF COMPLAINANT’S CLAIM
In its decision to dismiss Ms Collier’s claim, the tribunal assumed in her favour the facts as put in her case, taken at its highest, as was appropriate.
On those facts, Ms Collier suffered from bipolar disorder. She commenced working with the hospital in 1996. In 1997 she was promoted to assistant food services manager. She was placed under such excess work pressure that in January 2004 she suffered severe depression, for which she spent nearly two months in hospital. Her worker’s compensation claim for that condition was accepted.
Ms Collier was off work on worker’s compensation payments for about six months. She returned to work on shorter hours and special duties in mid-2004. From March 2004 until November 2005 she was working three days a week. In late 2005, there was a reorganisation of the food services operation at the hospital. As a result of that reorganisation, Ms Collier had to work longer hours than she was mentally capable of. By reason of the pressure of that work, she again became depressed and again spent nearly two months in hospital. Her worker’s compensation claim for that illness was accepted in July 2007.
In June-July 2006, Ms Collier wanted to return to work on restricted duties. Her general practitioner and the hospital doctor both agreed she was fit to return to work on a graduated basis. But the hospital said her job no longer existed. It refused to provide her with graduated work, or any work, and terminated her employment on 8 December 2006.
It was the hospital’s case that it had filled all of the positions in Ms Collier’s work area and there were no positions which she could fill. It was Ms Collier’s case that the hospital terminated her position because of her impairment. In support of that case, she relied on an email dated 4 January 2007 from Colin Schleiger, the hospital’s occupational health and safety manager, to the immediate supervisor of himself and Mr Chatain, which said (among other things):
After talking to Cambridge [the hospitals workers compensation insurer], we are both of the view that she [Ms Collier] has a good chance of getting her latest injury claim accepted. This could result in liability for 130 weeks (the application is an old template and is in error).
As discussed it would be best to get Mary [Ms Collier] off Austin’s books as if her case gets up Austin is then required to rehabilitate her. This is proving impossible to manage in any meaningful way in the environment.
In that factual setting, it was the general basis of Ms Collier’s claim that she was denied access to a return to work program in June 2006 and dismissed from her employment on 8 December 2006 by reason of her bipolar condition. Her complaints were more particularly set out in a document which was provided on her behalf to the tribunal at the hearing, in which the tribunal set out as follows:
The complaints are that the Respondents jointly and severally did contrary to s 14 of the Equal Opportunity Act1995 directly discriminate against the Complainant because of her impairment as follows:
(i)On or about 28 June 2006 the Respondents refused to provide the Complainant with suitable work when she was fit to resume work.
(ii)On or about 28 June 2006 the Respondents refused to provide the Complainant with graduated return work.
(iii)Since 8 December 2006 the Respondent has provided the Complainant with no further work.
(iv)On 8 December 2006 the Respondents wrongly terminated the Complainant’s return to work plan pursuant to which it was agreed she would progressively increase her hours until working full-time after 12 months and performing all her pre-disability duties.
(v)Failing to provide the Complainant with adequate and appropriate work facilities during her return to work between 18 October 2006 and 8 December 2006.
(vi)On 8 December 2006 the 3rd Respondent told the Complainant that even if the Complainant’s psychiatrist lifted all restrictions on her capacity to work on a full time basis he would ‘spill positions’ rather than re-instate her to her pre-impairment position.
(vii)Since 8 December 2006 failing to advise the Complainant of any suitable available work or duties with the Respondent.
(viii)In June 2006 the 2nd Respondent told the Complainant that her position had been restructured and there was no longer work available in breach of the Respondent’s statutory and contractual obligations.
(ix)Since 28 June 2008 the Respondents failed to accord the Complainant her entitlements under the Human Resources Policy which creates a code of conduct for the fair treatment of its employees.
(x)Since 8 December 2006 the Respondent denied any work to the Complainant in contravention of the terms of employment, the Human Resources Policy, and the Respondent’s statutory obligations under the Accident Compensation Act.
As compensation for the discrimination, Ms Collier claimed past and future loss of earnings and other lost monetary benefits of employment.
DECISION OF TRIBUNAL
The tribunal, constituted by senior member Robert Davis, said the central question was whether it could find she had been treated less favourably than someone without her bipolar attribute or with a different attribute in similar circumstances. To establish that less favourable treatment, s 8(1) of the Equal Opportunity Act required Ms Collier to point to a person (actual or hypothetical) who would have been treated more favourably in the same or similar circumstances. She wanted to be compared with other injured or ill employees who had been or would have been given access to a return to work program.
The tribunal held it was impossible for Ms Collier to point to a comparator as required by s 8(1) because all comparators would have her attribute of impairment. Another injured or ill worker would fall into that category. In so interpreting s 8(1), the tribunal neither referred to nor applied the applicable principle of interpretation. As I have said, that principle was that, as beneficial human rights legislation, the Equal Opportunity Act should be interpreted as liberally as the language of its provisions would permit.
The tribunal rejected comparison with other actual employees because their circumstances were not comparable. For example, of the comparison with a back-injured delivery man who was allowed gradually to return to work on alternate duties, the tribunal said the injury and his duties were different. As we will see, where the evidence was that Ms Collier was also capable of a graduated return to work on alternate duties, this comparator should not have been rejected.
Following the decision of McKenzie DP in Duma v Mader International Pty Ltd,[30] the tribunal held that complainants cannot use themselves as a direct comparator. It therefore rejected Ms Collier’s previous access to a return to work program as an appropriate comparator. As a hypothetical comparator is permissible, it is not necessary for me to determine whether a complainant can use their own previous experience as the point of comparison. But certainly a complainant’s own previous experience can be used when formulating a hypothetical comparator.
[30][2007] VCAT 2288.
Finally, the tribunal discussed and relied on Chalmers v Deakin University,[31] Purvis v New South Wales,[32] Purvis v New South Wales[33] and Gauld v Queensland Breweries Pty Ltd,[34] all of which I will consider below. The tribunal accepted the comparison could be with a hypothetical comparator, but decided there was none in the present case.
[31][1999] VCAT AD 10, 25 (McKenzie DP).
[32](2002) 117 FCR 237, [29] (Spender, Giles and Conti JJ).
[33](2003) 217 CLR 92.
[34][2007] QADT 20, [70]-[76] (Murphy SC).
As to Mr Schleiger’s email, the tribunal said it did ‘not take the complainant’s case any further.’ In reaching that conclusion, it adopted the submissions made by the hospital. There were several aspects to those submissions, between the tribunal did not differentiate. The two main aspects were that the dismissal by Ms Collier was incapable of being direct discrimination because there was no appropriate comparator, and there was no evidence to link the email, which was dated 4 January 2007, to the dismissal, which occurred on 8 December 2006.
On the analysis which follows next, the tribunal erred in law in deciding that no appropriate comparator could be identified.
CHOOSING THE APPROPRIATE COMPARATOR
Section 8(1) of the Equal Opportunity Act does not provide that discrimination occurs when a person is treated less favourably on the basis of an attribute. It provides that discrimination occurs when a person with an attribute is treated less favourably than a person without that attribute in the same or similar circumstances. That distinction was the foundation of the decision of the High Court of Australia in Purvis v New South Wales.[35] The court was there concerned with the interpretation and application of s 5(1)[36] of the Disability Discrimination Act1992 (Cth), which is not materially different to s 8(1) the Equal Opportunity Act.
[35](2003) 217 CLR 92.
[36]Section 5(1) provided:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disabilities…
As is well-known, the issue in Purvis was whether the education authority had discriminated against a brain-damaged teenage student on the basis of his disability. He was excluded from the public education system on the basis of his disability-caused violent behaviour towards other students and staff. It was submitted on behalf of the student that his behaviour should be excluded from the circumstances in which the comparison was to be carried out because it was an aspect of his disabled attribute. That submission was rejected by the majority of the court.[37]
[37]Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ; McHugh and Kirby JJ dissenting.
Gleeson CJ said the question was whether the less favourable treatment was because of ‘the aggrieved person’s disability’, when compared with someone without that disability.[38] The student’s violent behaviour should not be excluded: ‘The required comparison is with a pupil without the disability; not with a pupil without the violence’.[39] Therefore the required comparison was ‘with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder’.[40]
[38](2003) 217 CLR 92, [8].
[39]Ibid [11].
[40]Ibid.
McHugh and Kirby JJ dissented. They agreed the relevant comparator was someone without the student’s disability,[41] but the ‘appropriate comparator is not a student with behavioural problems’.[42]
[41]Ibid [115].
[42]Ibid [134].
Gummow, Hayne and Heydon JJ held the ‘disability legislation must be understood from the premise that the criterion for its operation is difference’.[43] The focus of the legislation was ‘on ensuring equality of treatment’.[44] The means chosen for achieving that objective was a provision requiring a comparison. That comparison was between the treatment of a person with a disability and ‘a person without the aggrieved person’s disability’.[45] The circumstances to be considered must include ‘all of the objective features which surround the actual or intended treatment’ of the person by the alleged discriminator,[46] including the student’s violent behaviour.
[43]Ibid [199].
[44]Ibid [203].
[45]Ibid [213].
[46]Ibid [224].
Here is the formulation of Gummow, Hayne and Heydon JJ of the correct approach:
In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without [the student’s] disability? (ii) If [the student’s] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the student’s] disability? Section 5(1) could be engaged in the application of s 22 only if it were found that [the student] was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of [the student’s] treatment.[47]
[47]Ibid [225]. Callinan J agreed: [273].
There is frequent reference in this as well as in other passages of the judgments in Purvis to the requirement that the comparison be with the treatment of someone without the complainant’s disability. These reflect s 5(1) of the Disability Discrimination Act, which defined discrimination as treating a complainant with a disability differently to someone ‘without the disability’.
However, the issue of interpretation before the court was whether the student’s disability-related behaviour was to be excluded from the ‘same or … not materially different circumstances’ in which the comparison was to be carried out. In that context, the court[48] carefully considered the detailed definition of ‘disability’ in s 4 of the Disability Discrimination Act. The remarks of the court about the scope of that definition were made and should be understood in that context. The court was not required to consider, and did not consider, the meaning of the phrase ‘without the disability’ in s 5(1), as that issue is raised in the present context.
[48]See ibid [3]-[5] (Gleeson CJ), [209]-[212] (Gummow, Hayne and Heydon JJ).
In my view, neither the result nor the reasoning in Purvis requires s 8(1) of the Equal Opportunity Act to be interpreted and applied such that a claim of disability discrimination based on refused access to return to work or rehabilitation services on the basis of the person’s disability must fail for want of a comparator. For the same reasons, the decision of the Full Court of the Federal Court of Australia,[49] on which the tribunal also relied, stands in the same category.
[49]Purvis v New South Wales (2002) 117 FCR 237, [29] (Spender, Giles and Conti JJ).
If the interpretation adopted by the tribunal were to be adopted, it would paralyse the operation of the Equal Opportunity Act in respect of discrimination on the basis of attributes which are possessed by everybody, such as age, physical features and sex. It would be as impossible to postulate a comparator for a person who alleges discrimination on the basis of these attributes as it would be to postulate a comparator for a person who alleges disability discrimination on the basis of being denied access to return to work or rehabilitation services. It would be a complete answer to a complaint of discrimination on the basis of sex or age, for example, that only persons possessing the complainant’s attribute of age or sex would have been treated in the same way and therefore no-one without that attribute would be available for comparison. In effect, sex, age and disability discrimination (of the kind alleged here) would no longer be prohibited. Victorian workers would be left without discrimination protection for dismissal on the ground of being sick or injured at work. That would decimate the operation of the legislation and its capacity to achieve the high purposes for which it was enacted.
The interpretation of the tribunal is not to be adopted. The operation of the legislation is not paralysed in such cases. On the correct interpretation of s 8(1), the proper comparator is conceptually the same in each. Where age, physical features, sex or such disability discrimination is alleged, the comparator may be someone of different age, features, sex or impairment. In each case, such a comparator answers the description of ‘someone without that attribute’ in s 8(1). That interpretation is open on the language of the provision, is consistent with the beneficial purpose of the legislation and is in accordance with the applicable principle of interpretation.
The application of s 8(1) on the basis of such a comparison is actually facilitated by the definition of ‘impairment’ in s 4(1). As we have seen, it contains a list of different kinds of impairments. It is convenient and natural to select an actual or hypothetical comparator having an impairment which is in the list but is different to the complainant’s. I make it clear, however, that a comparison of that kind would be called for even if the definition was not expressed in that way.
In the authorities which I will now review, that is how analogous provisions have been interpreted and applied, in my view correctly, by courts of high authority and by tribunals administering like legislation.
I will begin with Aylott v Stockton-on-Tees Borough Council.[50] Here the Court of Appeal restored an order for compensation made by an employment tribunal against an employer who directly discriminated against an employee with bipolar affective disorder by dismissing him. The relevant legislation was s 3A(5) of the Disability Discrimination Act 1995 (UK), which had a differential treatment test.[51]
[50][2010] EWCA Civ 910 (Mummery, Thomas and Toulson LJJ).
[51]Section 3A(5) provided:
A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person’.
The employee’s illness gave rise to many work performances and work absence issues. There had been unsuccessful attempts to get him back to work with support and on adjusted duties. But in the period prior to his dismissal, his regime of supervision was strengthened unreasonably and he was managed towards dismissal.
Here is the comparator chosen by the employment tribunal, which was upheld by the Court of Appeal:
The appropriate comparator is someone who had been off for a similar number of days but did not have the claimant’s disability. The Tribunal is satisfied that the claimant has shown that the respondent’s treatment of him upon his return from sickness, by imposing deadlines and referring to his performance, and strict monitoring followed by the response to his return to work in April 2006 and his dismissal were sufficient to shift the burden of proof. A comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment.[52]
[52][2010] EWCA Civ 910, [30].
Giving judgment for the Court of Appeal, Mummery LJ said that, under the provision, the comparator must not have the particular disability of the claimant and ‘[i]n other respects the circumstances of the claimant and the comparator must be the same “or not materially different”’.[53] His Lordship held the comparator chosen by the employment tribunal met those criteria: ‘The hypothetical comparator as a person who did not have the claimant’s particular disability, but had a similar sickness absence record, was a comparator choice reasonably open to the ET.’[54]
[53]Ibid, [37].
[54]Ibid, [44].
Section 3A(5) of the Disability Discrimination Act 1995 (UK) is not materially different to s 5(1) of the Disability Discrimination Act 1992 (Cth) and s 8(1) of the Equal Opportunity Act 1995 (Vic). I think the reasoning of Mummery, Thomas and Toulson JJ in Aylott is applicable in relation to the selection of a proper comparator for the purposes of s 8(1).
In Power v Aboriginal Hostels Ltd,[55] Mr Power was employed as the assistant manager of a hostel. He was dismissed for the reason that he suffered from a disability (clinical depression) which prevented him from performing on-call duties 24 hours a day, as required by his position. He alleged the dismissal fell within the definition of ‘discrimination’ in s 5(1) of the Disability Discrimination Act 1992 (Cth).
[55](2003) 133 FCR 254 (Selway J).
Applying Purvis v New South Wales,[56] Selway J said a comparison was required, which he described as follows:
If the employer would treat any employee the same who is absent from work for some weeks (whether or not the employee had a disability or not) then this would not constitute discrimination under the DDA. On the other hand, if the employer terminates the employment of an employee who has a disability (including an imputed disability) in circumstances where the employer would not have done so to an employee who was not suffering from a disability then this constitutes discrimination for the purposes of the DDA.[57]
[56](2003) 217 CLR 92.
[57](2003) 133 FCR 254, [8].
As the hostel conceded that it had dismissed Mr Power by reason that his disability prevented him from performing the duties of his position, and not by reason of his absences from work, Selway J found there had been disability discrimination. He returned the matter to the magistrate to determine whether the discrimination was excused by s 15(4)(a) on the ground that Mr Power was, by reason of his disability, ‘unable to carry out the inherent requirements of the position’.
In Forbes v Australian Federal Police,[58] Ms Forbes alleged she had been subjected to disability discrimination within s 5(1) of the Disability Discrimination Act on the ground of her disability, being a depressive illness. The discrimination was constituted by the refusal of the AFP to re-employ her after the expiry of her fixed-term contract. The AFP contended the employment relationship with Ms Forbes had completely broken down due to her absence from work for over two years. The magistrate accepted that contention at first instance. Black CJ, Chamberlain and Sackville JJ upheld it on appeal.
[58][2004] FCAFC 95.
Ms Forbes sought to raise on appeal, for the first time, that she had been discriminated against because the AFP had failed to provide rehabilitation to enable her to recover and return to employment.[59] That is exactly what Ms Collier alleges here. Ms Forbes sought leave to amend her notice of appeal accordingly.
[59]Ibid [9] (Black CJ, Chamberlain and Sackville JJ).
Black CJ, Chamberlain and Sackville JJ did not approach the matter on the basis that it was impossible to postulate an appropriate comparator. In relation to the refusal to supply rehabilitation services, their Honours said the comparison would be between Ms Forbes and ‘other employees with diagnosed medical problems’.[60] The question would be whether ‘the AFP had provided rehabilitation or similar services to employees suffering from conditions other than depressive illness’.[61] That is the test which I think applies under the Equal Opportunity Act. The court refused leave because the AFP had been denied the opportunity to adduce evidence on this question.
[60]Ibid [10].
[61]Ibid.
In Ware v OAMPS Insurances Brokers Ltd,[62] Mr Ware suffered from attention deficit disorder. He alleged OAMPS had discriminated against him on the grounds of his disability within s 5(1) of the Disability Discrimination Act by changing his conditions of employment and then dismissing him. Reflecting his medical condition, Mr Ware had been given restricted work. He was dismissed after his work was judged to be unsatisfactory against other standards.
[62][2005] FMCA 664 (Driver FM).
Driver FM said it was ‘critical’ to identify ‘an appropriate comparator’[63] and did not hold it was impossible to do so. As no actual comparator was offered, it had to be a hypothetical comparator. Applying Purvis v New South Wales,[64] the appropriate hypothetical comparator was one ‘who did not suffer from Mr Ware’s disabilities but who exhibited the same behaviours’.[65] His Honour identified that comparator to be:
a)an employee of Oamps having a position and responsibilities equivalent to those of Mr Ware;
b)who did not have Attention Deficit Disorder or depression; and
c)who exhibited the same behaviours as Mr Ware, namely poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance, but with a formerly high work ethic and a formerly good work history.[66]
[63]Ibid [100].
[64](2003) 217 CLR 92.
[65][2005] FMCA 664, [100].
[66]Ibid.
On the evidence, Driver FM found a hypothetical comparator would have been subjected to the same work restrictions as Mr Ware, but their performance would have been judged against the criteria stipulated in those restrictions and they would not have been dismissed.[67] Mr Ware was therefore found to have been dismissed by reason of his disability.[68] Although the magistrate did not expressly stipulate another illness in the comparator test, it is, with respect, artificial to ignore that someone with the attributes which were specified would almost certainly be ill.
[67]Ibid [120].
[68]Ibid.
In Toganivalu v Brown and Department of Corrective Services,[69] Mr Toganivalu was a prison officer with a knee injury. He was placed on three consecutive workplace rehabilitation programs. He completed the first and second without incident. While completing the third, the department required him to undergo a compulsory medical assessment and then forced him to retire. Mr Toganivalu alleged disability discrimination against s 10(1)[70] of the Anti-Discrimination Act 1991 (Qld).
[69][2006] QADT 13 (Mullins M).
[70]Section 10(1) provided:
Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
The Anti-Discrimination Tribunal of Queensland did not hold the claim to be incompetent for want of a comparator. Applying Purvis v New South Wales,[71] Mullins M said it was necessary to:[72]
identify the circumstances attending the treatment given to the disabled person and then examine what would have been done in those circumstances if the person concerned was not disabled. The Tribunal is then to answer two questions: first, how in the circumstances would a person without the comparator’s disability be treated and, secondly, if the treatment was less favourable was it because of the disability?[73]
[71](2003) 217 CLR 92.
[72][2006] QADT 13, [46].
[73]Purvis v New South Wales (2003) 217 CLR 92, [222]-[225] (Gummow, Hayne and Heydon JJ); Fetherston v Peninsular Health [2004] FCA 485, [69]-[89] (Heerey J) (footnote in quotation).
Applying this test, Mullins M compared Mr Toganivalu with a prison officer ‘in similar circumstances’ who was ‘undergoing a return to work program in accordance with’ the applicable procedures.[74] She held a prison officer in such circumstances under those procedures would have been consulted or interviewed before the ‘last resort’ medical examination was forced on them.[75] A person without Mr Toganivalu’s right knee disability would have been permitted to complete his rehabilitation plan. Mr Toganivalu was not permitted to complete that program because of his right knee impairment. He had thereby been treated differently and less favourably.[76] The discrimination was the failure of the employer to permit Mr Toganivalu to continue with his rehabilitation plan and afford him the opportunity of taking the benefit of the workplace adjustment and rehabilitation procedure[77] when he was capable of performing the genuine occupational requirements of his employment. In my view, the Equal Opportunity Act should be similarly applied.
[74][2006] QADT 13, [49].
[75]Ibid.
[76]Ibid [50].
[77]Ibid [57].
In McLachlin v Endeavour Coal Mine Pty Ltd,[78] Mr McLachlin was employed as an underground miner. He claimed the mine directly discriminated against him contrary to s 49B(1)(a)[79] of the Anti-Discrimination Act 1992 (NSW) by refusing to provide him with suitable duties to enable him to return to work between 6 September 2007 (when he was injured) and 8 February 2008 (when he returned to underground mining work).
[78][2009] NSWADT 312 (E Furnes (judicial member), E Hayes (non-judicial member), A Lowe (non-judicial member)).
[79]Section 49B(1)(a) provided:
(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 of 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…
Mr McLachlin shoulder injury was not work related. In the relevant period, he could perform some but not all of his pre-injury work. The medical certificate which he had did not expressly clear him for underground mining work. Other minors with non-work related injuries had been put on return to work programs, if their doctor approved.
The mine said it had refused to provide Mr McLachlin with return to work duties because of the risk of further injury to his shoulder, which would impose liability on the mine if it occurred in the workplace. Mr McLachlin was allowed to return to work when his doctor cleared him to perform light duties underground.
The New South Wales Administrative Decisions Tribunal stated that it was necessary for Mr McLachlin to identify a comparator. It examined various proposed comparators and found them to be unsuitable. But the tribunal did not reject the claim for want of a suitable comparator. Taking into account that Mr McLachlin had been allowed to return to work on light underground duties when his doctor cleared him to do so,[80] it decided that Mr McLachlin had not proved he had been treated less favourably than another person in the same or similar circumstances without a shoulder injury but who had been unable to perform all of his work duties.[81] That implies the comparator was a person in the same or similar circumstances to the worker concerned who could not perform all of their duties but who did not have the injury in question.
[80][2009] NSWADT 312, [28]-[29] (E Furnes (judicial member), E Hayes (non-judicial member), A Lowe (non-judicial member)).
[81]Ibid [77].
In these cases, the court or tribunal explicitly or implicitly identified as a comparator someone one who had an illness or injury like the complainant and was otherwise in the same or similar circumstances. In some few other cases, a claim has failed for want of a comparator. In my view, they should not be followed.
In that category was Turley v Alders Department Stores Ltd.[82] When Ms Turley was dismissed for being pregnant, she complained it was unlawful discrimination on the ground of her sex. Section 1(1) of the Sex Discrimination Act 1975 (UK) prohibited discrimination on grounds of sex when compared with the treatment of a man.[83]
[82][1980] ICR 66. (Bristow J, Mr Clement-Jones and Ms Smith).
[83]Section 1(1) of the Sex Discrimination Act 1975 (UK) provided:
In any circumstances relevant for the purposes of any provision of this Act other than a provision to which subsection (2) applies, a person discriminates against a woman if – (a) on the ground of her sex he treats her less favourably than he treats or would treat a man …
The majority of the Employment Appeal Tribunal[84] dismissed the complaint. Giving that decision, Bristow J said that when considering whether a woman ‘has been treated less favourably than a man the sense of the section is that you must compare like with like, and you cannot. When she is pregnant a woman is no longer just a woman.’[85] As there could be no comparator, the prohibition was not applicable.
[84]Bristow J and Mr Clement-Jones; Ms Smith dissenting.
[85]Ibid [70].
The dissentient held that pregnancy was a medical condition of a woman with which a medical condition of a man could fairly be compared.[86]
[86]Ibid [71].
The view of the dissentient was later approved unanimously by the Employment Appeals Tribunal in Hayes v Malleable Working Men’s Club and Institute.[87] Giving the judgment of the tribunal, Waite J said comparable cases could readily be visualised:
for example, that of a sick male employee and a pregnant woman employee, where the circumstances, although they could never in strictness be called the same, could nevertheless be properly regarded as lacking in any material difference.[88]
[87][1985] ICR 703 (Waite J, Ms Baird and Mr O’Brien).
[88]Ibid, [709].
The issue was dealt with by the Court of Appeal in Webb v EMO Air Cargo (UK) Ltd.[89] The court approved the approach adopted by the tribunal in Hayes. Glidewell J said:
If a woman is dismissed from employment for a reason arising out of pregnancy, and claims that she was discriminated against in breach of the 1975 Act, it is necessary for the industrial tribunal which hears her complaint to decide whether a man with a condition as nearly comparable as possible which had the same practical effect upon his ability to do the job would, or would not, have been dismissed.[90]
The House of Lords agreed.[91] Under the proper interpretation of s 8(1) of the Equal Opportunity Act, where discrimination is alleged on the basis of a universal attribute or because return to work or rehabilitation services have been denied to a worker with a disability, the comparator is selected in like manner.
[89][1992] 2 All ER 43 (Glidewell, Balcombe and Beldam LJJ)
[90]Ibid [53].
[91]Webb v EMO Air Cargo (UK) Ltd [1993] ICR 175, 180-181 (Lord Keith; Lord Griffiths, Lord Browne-Wilkinson, Lord Mustil and Lord Slynn agreeing). Their Honours referred the question to the European Court of Justice, which decided that ‘the dismissal of a female worker on a count of pregnancy constituted direct discrimination on grounds of sex’, and since pregnancy was not an illness, there was no call to compare the pregnant woman with a similarly incapable man: Webb v EMO Air Cargo (UK) Ltd [1994] ICR 770, [19], [24].
In the present case, the tribunal relied heavily on the decision in Chalmers v Deakin University,[92] which preceded, but was wrongly seen by the tribunal to be consistent with, Purvis v New South Wales.[93] When Mr Chalmers returned to work as a lecturer following a heart attack, it failed to provide him with return to work rehabilitation and reduce his workload. He claimed the university had directly discriminated against him contrary to s 8(1) of the Equal Opportunity Act on the ground of his impairment. McKenzie DP struck the application out, giving these reasons:
In my view, an allegation that an impaired person was denied rehabilitation is incapable of constituting direct discrimination. It does not permit the comparison to be made which direct discrimination requires. The comparison cannot be made in the same or not materially different circumstances. The impaired person needs rehabilitation while the unimpaired person does not. Again, discrimination can only occur by the denial of a benefit or the subjecting of the person to a detriment. To enable a comparison to be made for the purposes of direct discrimination, the benefit and the detriment must be the same for both comparators. For example, a benefit such as leave is capable of application equally to impaired and unimpaired employees. The need for rehabilitation is not like this. It can only apply to the impaired employee. It cannot apply to the unimpaired employee, who does not need it.[94]
[92][1999] VCAT AD 10.
[93](2003) 217 CLR 92.
[94]Ibid [25].
For the reasons which I have already given, this reasoning cannot be accepted and the claim should not have been struck out.
McKenzie DP has not applied the reasoning in Chalmers in subsequent cases.
For example, in Duma v Mader International Pty Ltd,[95] the complainant was employed by Mader, whose business was servicing, maintaining and repairing ambulances. He had work-related injuries to his neck, left shoulder and arm, and chronic pain and was dismissed after being absent from work on paid sick leave, and on unpaid sick leave, for a substantial period. He alleged the dismissal was discrimination contrary to s 8(1) (and indirect discrimination contrary to s 9(1)) of the Equal Opportunity Act.
[95][2007] VCAT 2288.
The claim was not dismissed for want of a possible comparator. For the purposes of s 8(1), McKenzie DP identified the appropriate comparator as
a Mader employee without those impairments who was on long-term authorised unpaid absence from work (unrelated to impairment) an absence which did not have a definite end date.[96]
[96]Ibid [75].
On the evidence, the claim was dismissed on the basis that Mader would have treated a person with those absences in the same way.[97] Although I would not criticise this result, the reasoning seems designed artificially to avoid making a comparison with someone who is injured. For the reasons which I have given, it is unnecessary to avoid making that comparison.
[97]Ibid.
Then, in Zygorodimos v Department of Education and Training,[98] McKenzie DP dealt with an allegation that, contrary to s 8(1) of the Equal Opportunity Act, a deaf training college had, discriminated against Ben Zygorodimos (who was aged 9 years) by failing to provide him with tuition wholly communicated in a way which suited his needs, namely by the spoken word, which he could hear with his hearing aides. On behalf of Ben it was said that he was not taught by spoken word by view of his hearing impairment when the degree of his impairment was not such as to require teaching by non-spoken means.
[98][2004] VCAT 128.
Among the reasons given by the tribunal for rejecting the claim were that ‘there were difficulties with the appropriate comparator’.[99] However, the deputy president did not apply Chalmers. Rather, she held the comparator ‘must be a person without [Ben’s] attribute or with a different attribute – that is, without Ben’s exact attribute’. The comparator had to be other students ‘in the same, or similar, circumstances’.[100] That approach was correct and accords with my view of the proper interpretation of the provision. The tribunal should have applied that approach in this case. McKenzie DP found that all students at the school, regardless of their disability, were taught by the means which were identified in the charter of the school as being best for the school as a whole, and Ben was not being treated differently. Leave to appeal was dismissed.[101]
[99]Ibid [87].
[100]Ibid [89].
[101]Zygorodimos v State of Victoria [2004] VSC 143 (Warren CJ).
In the present case, the tribunal also relied on Gauld v Queensland Breweries Pty Ltd.[102] Mr Gauld had been employed by the brewery for 10 years. He injured his back at work. After an unsuccessful attempt to return to work he was dismissed. He alleged direct discrimination on grounds of disability contrary to s 10(1) of the Anti-Discrimination Act. The Anti-Discrimination Tribunal of Queensland tribunal found the brewery would have treated someone in those circumstances in the same way.[103]
[102][2007] QADT 20 (Mr Murphy SC).
[103]Ibid [85].
In its decision, the tribunal said the complainant’s ‘attempt to use as a comparison other workers who have also suffered an impairment is flawed. The relevant comparator is a person without an impairment but who otherwise fits the relevant circumstances which … I have outlined.’[104] But, with respect, the circumstances outlined have been artificially constructed to exclude reference to disability even though the circumstances almost certainly arise from disability. For example, the comparator could be a ‘person in respect of whom an expert has certified to the employer that (for whatever reason) they are incapable of, or unable to, engage in sedentary employment or a return to work program’. On the proper interpretation of s 8(1), such devices are unnecessary.
[104]Ibid [84].
In conclusion, the tribunal erred in law in its interpretation of s 8(1) of the Equal Opportunity Act. The interpretation which it adopted would paralyse the operation of that Act in respect of alleged discrimination on the basis of race, physical features, sex and denial of return to work and rehabilitation services for sick and injured workers. It is not in accordance with the applicable principle of interpretation, which is that, as human rights legislation, the Act should be interpreted as liberally as the language of its provisions will allow. The interpretation of the tribunal is not required by the decision of the High Court in Purvis v New South Wales.[105] It is not consistent with the approach adopted in disability discrimination cases of this nature in other jurisdictions in Australia or in the United Kingdom. Chalmers v Deakin University[106] was incorrectly decided on this issue, has not been consistently applied by the deputy president who decided it and should not have been followed in this case.
[105](2003) 217 CLR 92.
[106][1999] VCAT AD 10.
On the proper interpretation of s 8(1), the comparator for determining Ms Collier’s complaint can be a fellow worker, actual or hypothetical, who has a particular impairment which is different to hers, who is fit, willing and able to participate in the hospital’s return to work and rehabilitation program, as she was, and who is otherwise in the same or similar circumstances to her. Such a person is ‘someone without that attribute’ for the purposes of s 8(1).
There will be orders setting aside the summary dismissal order of the tribunal and remitting the matter back to the tribunal for reconsideration in accordance with law.
CONCLUSION
Mary Collier brought a discrimination complaint in the Victorian Civil and Administrative Tribunal against Austin Hospital and two managers. After recovering from work-related mental illness, she wanted to access the hospital’s return to work and rehabilitation program. She had been certified as fit to work by her own and the hospital’s doctor. The hospital would not give her any work, would not put her on the return to work program and then dismissed her. It claimed her position no longer existed, but a hospital manager said in an email it was best to get her ‘off Austin’s books’ rather than ‘rehabilitate her’. Ms Collier claimed disability discrimination under the Equal Opportunity Act.
To establish her complaint, it was necessary for Ms Collier to meet the discrimination test in the Act. By that test, discrimination occurs when someone is treated to their detriment on the basis of an attribute (like sex, age or disability) when compared with someone without that attribute in otherwise the same or similar circumstances.
On the application of the hospital and the managers, the tribunal summarily dismissed Ms Collier’s complaint. It held all people seeking to return to work after illness or injury who claimed disability discrimination on that basis would have the attribute of disability. As there could be no person without the attribute with whom to compare such workers generally and Ms Collier in particular, her claim was incompetent.
The tribunal’s decision was based on its interpretation of the statutory provisions. On that interpretation, no Victorian worker would be protected by the Act from disability discrimination when refused return to work on the basis of disability even if fit, willing and able gradually to return to the duties of their employment. On the same interpretation, claims of discrimination on the basis of sex, for example, would necessarily fail. It would be a complete answer to a claim of sex discrimination against women that the discriminator treated all women to their detriment in the same way. There could be no person against whom to compare the treatment of the complainant as all other persons are men. The interpretation adopted by the tribunal would thus defeat the protective objects of the Equal Opportunity Act and undermine the human rights protections which it was intended to confer.
In this appeal on a question of law, I have come to the conclusion that the interpretation of the tribunal is not correct. The applicable principle for the interpretation of protective human rights legislation like the Equal Opportunity Act is that the statutory provisions should be interpreted as beneficially as their language will permit. Applying that principle, the correct interpretation of the provisions is that the proper comparator in the present case is a worker with a different disability to the particular disability which the complainant has, who (like the complainant) is fit, willing and able to return to graduated work and who is otherwise in the same or similar circumstances. The sex and age discrimination provisions operate in a similar way.
Ms Collier has established the tribunal erred in law in the interpretation of the provisions of the Equal Opportunity Act. It should not have summarily dismissed her claim. The order of the tribunal will be set aside and the claim remitted back to the tribunal for reconsideration in accordance with law. I will deal separately with the issue of costs.
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