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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collier v Austin Health

Details

AGLC: Collier v Austin Health [2011] VSC 344
Case: [2011] VSC 344
Decision Date: 27 July 2011

CaseChat Overview and Summary

Collier brought an appeal against Austin Health to the Court of Appeal, challenging the summary dismissal of his disability discrimination claim by the Victorian Civil and Administrative Tribunal. The claimant alleged that his dismissal by Austin Health, a public health service provider, was discriminatory based on his impairment following a work-related illness. Collier had recovered from the illness but was dismissed by his employer on the grounds that he was impaired and therefore unable to return to work. The primary issue for the court was to determine whether this constituted prohibited discrimination under the Equal Opportunity Act 1995, specifically in relation to the statutory definition of impairment and the appropriate comparator for discrimination claims.

The court considered the relevant statutory provisions and interpreted the term "impairment" as well as the phrase "without that attribute". It held that the correct comparator for assessing discrimination in this context was whether the employee would have been treated the same way if they did not possess the attribute of impairment. The court further held that an appropriate comparator would be someone without the complainant’s particular attribute, in this case, an employee who was not impaired. The court examined the statutory language and legislative intent, finding that the dismissal was discriminatory as it was based on the claimant's impairment.

The Court of Appeal held that the Tribunal erred in its interpretation of the statutory provisions. The claimant's dismissal was indeed discriminatory as it was based on his impairment. The Court allowed the appeal and remitted the matter back to the Tribunal for further consideration. The final orders of the Court were to set aside the Tribunal’s decision and to direct the Tribunal to reconsider the matter in light of the Court’s findings on the proper interpretation of the statutory provisions and the applicable principles of discrimination under the Equal Opportunity Act.

Orders