Commonwealth of Australia v Humphries, Nerilie Ann

[1998] FCA 1031

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Judicial Review
CIVIL AND POLITICAL RIGHTS – discrimination on the ground of disability – meaning of “on the ground of” – factual inquiry to establish causal relationship – alleged discriminator’s intent – meaning of “in circumstances that are the same or are not materially different” – whether the circumstances are materially different merely because the complainant’s needs are different from a non-disabled person

Disability Discrimination Act 1992 (Cth) s 79(1), 5, 15, 3
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 Appl
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 77 FCR 371 Appl
Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 Appl
Proudfoot v Australian Capital Territory Board of Health (1992) EOC 92-417 Appl
Re Saskatchewan Human Rights Commission v Canadian Odeon Theatres Ltd (1985) 18 DLR (4^th) 93 Refd
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Appl

Commonwealth of Australia v Nerilie Anne Humphries, Human Rights and Equal Opportunity Commission and Hilary Charlesworth

QG 6 of 1998

Kiefel J
Brisbane
25 August 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6 of 1998

ON APPEAL FROM A DECISION BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITIES COMMISSION

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPLICANT

AND:

NERILIE ANNE HUMPHRIES
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

HILARY CHARLESWORTH
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

25 AUGUST 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. The decision of the Inquiry Commissioner dated 19 December 1997 be set aside.

1. The matter be remitted to the second respondent, differently constituted, for determination according to law.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6 of 1998

ON APPEAL FROM A DECISION BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITIES COMMISSION

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPLICANT

AND:

NERILIE ANNE HUMPHRIES
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

HILARY CHARLESWORTH
THIRD RESPONDENT

JUDGE:	KIEFEL J
DATE:	25 AUGUST 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Following an inquiry under s 79(1) of the Disability Discrimination Act 1992 (Cth) (“the DDA”) into a complaint by Mrs Humphries against her former employer, the Commonwealth Department of Education Employment Training and Youth Affairs (“DEET”), the Inquiry Commissioner found that Mrs Humphries had been discriminated against on the grounds of her disability and in the terms and conditions of her employment in four respects: by reason of its failure to provide her with necessary equipment in the Area Office; its denial of opportunities for her further training; the manner in which her appointment at the CES had been made contingent on her performance of all ASO1 competencies; and further because Mrs Humphries’ termination of employment with DEET was connected to those acts of direct discrimination. The Commonwealth seeks a review of those decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Background Facts
Mrs Humphries is visually impaired, having approximately five per cent of normal vision.  She has however been able to work in the past and was able to type and read using a magnifying glass prior to her appointment at DEET.  Mrs Humphries was first appointed by DEET in February 1993 as an administrative services officer Class 1 (ASO1) on a temporary basis.  She received a permanent appointment on 13 October 1993, having achieved high results in the public service examination.  A condition of the appointment was a six month probationary period.  This was later extended in May 1994 for about six months.

During the period of Mrs Humphries’ employment DEET was undergoing restructuring and this had been known to staff since about 1993.  This ultimately led to Mrs Humphries joining the Commonwealth Employment Service in August 1994.  Prior to her commencement in that position Mrs Humphries took four weeks leave in July 1994 on the grounds of work-related stress and then took, on average, one day per week leave in September and October 1994.  In August 1994 Mrs Humphries was referred to the Commonwealth Rehabilitation Service so that a return-to-work program could be developed for her.  However she took compensation leave again in November 1994.  In January 1995 the Commonwealth Medical Officer (“CMO”) reported Mrs Humphries was unfit for work and certified for three months’ leave on that basis.  He further advised that she would not be fit for full time work on her return but that she could work part-time.  Mrs Humphries’ employment was terminated on 3 July 1995, after a report from the CMO advised that she did not meet medical fitness requirements.  That report, in turn, had relied upon advices from Dr Doughty, an occupational physician who examined Mrs Humphries in April 1995.

Work History - Findings
Failure to provide equipment
A few months after Mrs Humphries obtained a permanent appointment DEET referred her to a specialist because of her complaint of eye strain.  The specialist recommended that DEET contact the Royal Blind Society “regarding appropriate visual aids and possibly a workplace assessment”.  Mrs Humphries had, in her temporary position, apparently undertaken tasks other than word processing.  Competence in the use of a word processor was however a requirement of an ASO1.

It is convenient at this point to refer to the Commissioner’s findings generally with respect to the initial steps undertaken when Mrs Humphries joined DEET. 

The evidence concerning the commencement of Mrs Humphries’ employment and the very early period of it was somewhat sketchy.  Witnesses were generally not able to recall much of what had occurred.  The Commissioner considered that there was “remarkably little discussion of how Mrs Humphries would be inducted into the work place …”.  No witness could recall any plans for an assessment of Mrs Humphries’ needs, even when it became obvious that no other support was being offered.  The little evidence that there was, that it would have been standard procedure to direct some such enquiry, was not accepted by the Commissioner as having occurred, given the lack of any specific evidence on the point.  The Commissioner concluded:

“The rather haphazard attention that was paid to Mrs Humphries’ needs to become a functional member of the workplace before she began work set the scene for later events.”

Another observation made by the Commissioner at this point is also of some importance, particularly with respect to the later termination of employment.  The Commissioner accepted that Mrs Humphries was a good and conscientious employee and that, at the time she commenced employment with DEET, there was no doubt she was able to undertake full time work. 

Although no assessment of Mrs Humphries’ needs was ever undertaken, magnifying glasses and a “CCTV”, a machine that enlarges text onto a screen, were obtained for her.  Difficulties were then encountered in providing the appropriate software for her use.  The local computer network administrator identified the appropriate product, which magnified computer text on screen, but attempts to obtain it were hindered by delays in approval for ordering the software.  The next delay encountered was in having it installed.  Once installed it became obvious that a standard computer screen was inadequate.  The network administrator said that she asked at least three times in a three month period to be able to purchase a larger monitor.  The reason given for not providing it was a reluctance to approve funds, which appeared to have stemmed from the refusal of the Area Director to approve purchases because of the impending restructure of the Area Office.  The cost involved was some $1000.  It was never supplied.  At this point in the reasons the Commissioner noted that Mrs Humphries disputed this evidence, saying that the attempt to obtain the larger screen took place in August or September 1993 and the freeze of funds did not occur until November or December 1994. This was not resolved on the findings, save that the Commissioner at a later point in the reasons did not accept that there was such a difficulty with funding.  In the meantime other tasks were attempted to be found for Mrs Humphries. 

Another problem was encountered with Mrs Humphries obtaining an anti-glare screen to obviate flickering on the monitor of her CCTV.  Such screens were not expensive and in common use.  Another employee loaned Mrs Humphries a screen but it broke after a short period and was never replaced.  There was considerable dispute about whether there had been a request for a screen.  Apart from Mrs Humphries it seems only one witness, the computer network administrator, recalled this as having been an issue.

In relation generally to the difficulties in obtaining equipment and the reason for it, the Commissioner noted the evidence of the Corporate Services Manager in the Area Office who could not recall specific requests for equipment or reasons for the delay involved.  She did point to a number of likely reasons not uncommon in administration, such as an inability to discuss issues with the person having authority;  priorities;  budgets and the constraints which impending restructuring placed upon the purchase of new equipment.  She said that the purchase of computer equipment was being closely watched and the Director of the Area Office had made an early decision to stop purchasing equipment.

In relation to the employment with DEET, the Commissioner then found as follows:

“On the basis of the evidence presented to me, I find that there was a failure by DEET to provide Mrs Humphries with appropriate equipment to perform her work at the Area Office.  I accept Mrs Humphries’ and Ms Massey’s evidence [the computer network administrator] that repeated efforts were made to obtain an anti-glare screen.  No plausible justification was provided for the failure to provide it.  The costs involved in purchasing a large screen to enable zoom text to function were not excessive for DEET as the employer.  Indeed it seems extraordinary that DEET effectively undermined the value of the purchase of zoom text by failing to provide equipment on which it would work.  Even if there were a purchasing freeze in place (and I do not accept that there was), the appropriate course would have been for Mrs Humphries’ managers to seek an exception in this case.”

The Commissioner then went on to deal with what followed as a result of this failure to provide equipment.  Both Mrs Humphries and Ms Massey had given evidence that Mrs Humphries’ position had become difficult because of the continued requests she was making.  The Corporate Services Manager however had taken a somewhat different view of the matter, implying that Mrs Humphries was ready to accuse people of harassment when “advisory feedback” was given and was inclined to blame others for her difficulties.  Another consequence adverted to in relation to not obtaining the equipment was that Mrs Humphries often did not have sufficient work to do and this caused her some stress.

In relation to Mrs Humphries’ later employment at the CES, unsatisfactory attempts to obtain proper equipment were again made.  A member of the disability access support unit had written a report but for some reason was not permitted to observe Mrs Humphries in her workplace or consult with her.  In about October 1994 she was loaned a synthesiser by the support unit which did not work properly and she regularly asked for it to be repaired.  In addition to being hampered in her ability to undertake word processing she could not undertake other tasks which required access to the mainframe computer.  Attempts to obtain equipment to allow this access were again unsuccessful.  There were reasons given but no one could recall the precise reason.  This appears to have occurred at a time close to when Mrs Humphries ceased work in November 1994.

Specifically, the Commissioner concluded that Mrs Humphries again suffered discrimination in the terms and conditions of her employment with DEET on the basis of her disability in these terms:

[1]“the failure to provide adequate equipment for her to be able to word process properly and to contemplate higher duties through using the mainframe computer at both the Area Office and the CES was discriminatory.  Mrs Humphries was not given the chance to demonstrate her ability and competence because her special needs were not taken into account”.

With these conclusions the Commissioner went on to point out that the office seemed unprepared to cope with the special needs of employees such as Mrs Humphries and the initial interest in assisting a disabled employee waned quickly;  there was no workplace assessment of her needs undertaken and no support program anticipated.  In her view Mrs Humphries’ reasonable requests for support and equipment were handled in such a diffident fashion that she became seriously stressed.

There was other evidence which the Commissioner appears to have drawn on to support the view arrived at, that DEET’s failure to ensure Mrs Humphries’ equipment was, in the circumstances of this case, discriminatory.  A Ms Sharyn Winter had given evidence that she had worked for DEET.  She likewise had a visual disability which left her with five per cent vision.  She had worked for the Australian Public Service for almost ten years and had progressed through the promotional system.  She had received assistance on her joining in 1992 and although no workplace assessment was carried out equipment was provided, although some of it took eight months to arrive.  She had had support from other staff and prompt repair of equipment and access to the mainframe computer.  She had undertaken higher training.  The observation that the Commissioner made was that the different experiences were explained by Ms Winter and Mrs Humphries having worked in different DEET offices.

1. Failure to allow access to training
   There was evidence of some reluctance to provide Mrs Humphries with training when she requested it whilst at the Area Office of DEET.  The original basis given was that she was a temporary worker but this was altered to concerns about how to accommodate her disability.  Eventually she did undertake three training courses.  The relevant denial of opportunity concerned computer training.

The supervisor of Mrs Humphries who was called to give evidence confirmed that Mrs Humphries’ lack of training in computer skills would render her ineligible for higher duties.  The Inquiry Commissioner then observed:

“DEETYA however did not offer any explanation why Mrs Humphries was not admitted to training to increase her computer skills. 

I accept Mrs Humphries’ uncontradicted evidence that she sought and was denied training in areas that would have allowed her advancement, such as computer skills.  Mrs Humphries was prepared to do the existing courses and was confident she could cope by listening to them and by later studying the notes.”

The finding by the Commissioner was to this effect:

[2]“Second, the failure to allow Mrs Humphries access to further training that would have helped her in promotion applications, constituted direct discrimination on the basis of her disability.  Management in the Area Office did not accept that Mrs Humphries could do the training courses and made little effort (compared for example with the efforts made to assist Ms Winter’s training) to accommodate her.”

1. Appointment subject to competencies

Mrs Humphries was told by Ms Ryan, a supervisor at the CES and formerly the Area Office Training Manager at DEET, that she was required to complete the 21 ASO1 competencies before her position could be confirmed.  Ms Ryan said in her evidence before the Commissioner that it was not unusual to use the competencies as benchmarks for confirmation.  Mrs Humphries said that she had prepared the first competency in detail, but was not tested on it, but Ms Ryan could not recall being told that she was ready for testing.  The rehabilitation service case worker, Ms Malcolm, attempted to ascertain whether all the competencies were necessary for probation to be confirmed and Ms Maxwell, a supervisor, said that she had not previously heard of the completion of probation being dependent upon satisfaction of the competencies.  She was also of the view that Mrs Humphries could have more readily demonstrated her ability with respect to them had she had the proper equipment.  The Commissioner went on at this point:

“From the evidence I received, I find that requiring Mrs Humphries to pass a test on all 21 competencies at the ASO1 level was unusual and was a decision made on the basis of her disability”.

The probation period with respect to Mrs Humphries’ position was extended twice in the latter part of 1994 and was to have been the subject of monthly reports by Mrs Humphries’ supervisors, dealing with her performance and training needs and providing her with assessment or “feedback”, but they were not done in time.  Those for the months of August, September and October were not received until November (not long before she left) and this prompted a suggestion that the probation period be extended again, although Ms Malcolm had suggested the period be reduced. 

Ms Malcolm explained that the problems surrounding Mrs Humphries’ return to work seemed insurmountable.  She had attempted to devise a program which would enable Mrs Humphries to work part time, but this meant that Mrs Humphries could not have her permanent appointment confirmed and probation completed.  The prospect of what appears to be a simple solution was eventually lost, despite attempts to progress matters and to organise meetings to that end.  Whilst critical of DEET’s response to the attempt to put a program in place, Ms Malcolm said that she did not think the frustration of her endeavours was deliberate.  She referred to apparent lack of organisation.  The Inquiry Commissioner then continued:

“Ms Malcolm has worked in Occupational Therapy for seventeen years.  In answer to my question about how often she had encountered a situation like that of Mrs Humphries’, she responded that it was an unusual case, because she did not seem able to achieve a resolution.”

And ultimately concluded:

[3]“Third, I consider that the manner in which confirmation of her appointment was made contingent on her performance of the full 21 ASO1 competencies at the CES was directly discriminatory.  There was no adequate evidence produced to me that this requirement was generally imposed on other ASO1 employees, and in Mrs Humphries’ case it appeared a direct result of her disability.”

1. Termination of Employment
   The Commissioner accepted Mrs Humphries’ evidence that she became distressed by the treatment she received at the workplace.  Her husband said that from late 1993 she would return from work in an emotional state and would be unable to sleep well.  By November 1994 her stress condition was so severe that she took further leave and did not return.

Dr Doughty examined Mrs Humphries on 18 April 1995 having been referred by the Commonwealth Medical Officer.  He concluded that she was unable to do any work that entailed rapid reading and that she could only read slowly with visual aids.  It is necessary to set out this part of the Commissioner’s findings, given submissions later made:

“…Dr Doughty did not in fact assess Mrs Humphries’ ability to type or read with visual aids.  His report nevertheless made a number of contentious assumptions about her abilities in the work place.  At the hearing Mrs Humphries demonstrated her ability to read fluently from a document with visual aids.  Dr Doughty’s report also noted that, in his opinion, Mrs Humphries was unlikely to be employed again on a ‘commercially viable basis’.  Dr Doughty’s evidence in cross examination indicated some inaccuracies in his report.  For example, Dr Doughty stated that Mrs Humphries had not been commercially employed between 1970 and 1993.  In fact, Mrs Humphries had been self employed and commercially employed between 1978 to 1987 working very long hours.”

A psychiatrist who saw Mrs Humphries in late 1996, and who diagnosed her as suffering from a form of post-traumatic stress disorder, consistent with victimisation, was at odds with Dr Doughty’s assessment that Mrs Humphries suffered from a form of personality disorder.  The Commissioner then reasoned:

“The inaccuracies in and the tone of Dr Doughty’s report indicate that it was an unsatisfactory basis for termination of Mrs Humphries’ employment.  I accept that the stress suffered by Mrs Humphries was largely caused by her treatment in the workplace.  Mrs Humphries began working with DEET as a capable and confident woman.  After less than two years, she sustained a great level of anxiety.  There was a direct connexion between the lack of appropriate equipment and the continual barriers to confirmation and the stress and inability to work of Mrs Humphries.”

And determined:

[4]“Fourth, I consider that the termination of Mrs Humphries’ employment with DEET was connected to the acts of direct discrimination I have described above. As I have noted, the discrimination on the basis of her disability wore Mrs Humphries down and caused stress at traumatic levels. DEET should have addressed the root causes of the stress rather than simply terminating Mrs Humphries’ employment. The termination was brought about by and thus on the grounds of Mrs Humphries’ disability. For the reasons prescribed above, I do not think that s 15(4) applies in these circumstances.”

Other complaints made both of direct and indirect discrimination, were not accepted by the Commissioner as referable to Mrs Humphries’ disability and they form no part of the application for review.

Statutory Provisions
Section 5 DDA provides:

“5(1)   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 disability.

(2)      For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”

“Accommodation” is defined in s 4, “unless the contrary intention appears”, to include residential or business accommodation.  “Services” is also given an inclusive definition extending from the provision of finance through to entertainment, recreation, telecommunication and those provided by professions or trade or by government.  It is not necessary to set the definition out in full.

Section 15 “Discrimination in Employment” provides:

“(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

(a)in the arrangements made for the purpose of determining who should be offered employment;  or

(b)in determining who should be offered employment; or

(c)in the terms or conditions on which employment is offered.

(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

(a)in the terms or conditions of employment that the employer affords the employee;  or

(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;  or

(c)by dismissing the employee;  or

(d)by subjecting the employee to any other detriment.

…”

and subsection (4) then provides that that provision does not render unlawful

“… discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

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

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

The objects of the Act are provided by s 3:

3.        The objects of this Act are:

(a)to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)work, accommodation, education, access to premises, clubs and sport; and

(ii)the provision of goods, facilities, services and land; and

(iii)existing laws; and

(iv)the administration of Commonwealth laws and programs; and

(b)to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.”

Application for review

1. Failure to provide equipment
   The ultimate finding, that the failure to provide equipment to enable Mrs Humphries to undertake tasks appropriate to her work status was discriminatory, appears to have been reached by reference to the following factors:  the failure, in the first place, to undertake any assessment of Mrs Humphries’ needs;  the delays, and failure in one instance, in obtaining equipment that was eventually identified as necessary, which were not satisfactorily explained;  the general lack of support or interest evinced by many of those involved in management to act more positively, and failing to take account of Mrs Humphries’ needs.  The Commissioner appears also to have been influenced, in her reasoning, by standards which DEET had set for itself and its employees, which were not met.  In response to an argument that DEET had done what it could to support Mrs Humphries in the workplace, which the Commissioner rejected the Commissioner encapsulated the earlier findings:

   “As I have stated above, there was no acceptable excuse for DEET’s failure to ensure that Mrs Humphries had access to equipment that enabled her to function on the same basis as any other ASO1. …”

and went on

“…The experience of Ms Winter at DEET’s Gold Coast office indicates different results in dealing with disabled employees.  In some DEET offices, management took its obligation to treat employees with a disability in a non-discriminatory way seriously and purchased the necessary equipment.”

The Commissioner’s reasoning, to a conclusion of discrimination, relies, essentially, upon DEET’s failures to meet Mrs Humphries’ needs.  Save for the failure to provide the larger screen  at all, the findings were of delay, not refusal.  So far as concerned any reason for that approach, there was no express rejection of the evidence given for DEET unless one were to read the reference to “no plausible justification” being provided, as incorporating all findings that the explanations lacked credibility.  That would not appear to be the case.  In context, the finding would appear to be one that the Commissioner was not satisfied that the excuses offered were sufficient.  This would conform with the later reference to there being “no acceptable excuse for DEET’s failure …”.

The Commonwealth’s first submission was that it must be shown that Mrs Humphries’ disability was the operative cause for the failure to purchase the equipment in question and the Commissioner’s findings do not go that far.  The disability was the cause only in the sense that it created the need for the purchase.  This contention focuses upon the phrases “on the ground of” and “because of” (the disability) in each of sections 5 and 15.

The second submission concerned the construction of the phrase “in circumstances that are the same or not materially different” in s 5, which is concerned with the enquiry in s 5(1) as to whether the treatment received was less favourable than would have been received by a person who was not disabled. The Commonwealth’s submission relied upon s 5(2) which, it submitted, meant that a disabled person’s requirement for different facilities or equipment rendered their circumstances “materially different” from other workers.  So understood, there could not be a proper comparison of treatment for the purposes of the section.

Section 5 DDA which is, in essential respects, in like terms to s 5 Sex Discrimination Act 1984 (Cth) requires a factual inquiry to ascertain whether less favourable treatment has occurred, and that conclusion is only possible if the treatment experienced occurs in circumstances that are the same or not materially different from those in which a person, who does not suffer from any disability, has received or would receive more favourable treatment. That is the enquiry as to the treatment received.  The other part of s 5 enquires as to the reason for that treatment.  The language of the section suggests there is no discrimination, on the ground of disability, unless a causal relationship is established between the disability of the aggrieved person and any less favourable treatment accorded them (see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 77 FCR 371, 389-92). Lockhart J in HREOC v MIM, 321-5 dealt with what is further required to establish the causative link and as to whether it permits consideration of the alleged discriminator’s motive.  What is involved is a factual inquiry, which takes into account all of the surrounding circumstances.  It is possible that some conduct could be found to be inherently discriminatory:  HREOC v MIM, Lockhart J, 323-5, but it will be relevant to consider the alleged discriminator’s reasons:  HREOC v MIM, 322;  Commonwealth v HREOC, 390.  In this case reasons were advanced and required consideration.

The Commonwealth’s approach to construction, in the second submission would appear to deny the application of s 5 to a case where a disabled person required something which a non-disabled person would not.  The error of law identified in the Commissioner’s determination that Mrs Humphries had, in this respect, been discriminated against in the terms and conditions of her employment (s 15(2)), was in the failure to identify the circumstances of Mrs Humphries as materially different, because of her needs. It would seem to me that this contention is contrary to the view expressed in Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191, 194, 209, that it would fatally frustrate the purposes of an Act such as this (their Honours were there dealing with the Sex Discrimination Act), if the matters which it expressly identified as constituting unacceptable differential treatment could be seized upon as rendering the overall circumstances materially different (see also HREOC v MIM, Lockhart J, 301;  Proudfoot v Australian Capital Territory Board of Health (1992) EOC 92-417, 79,980).

The Commonwealth further submitted that s 5(2) was irrelevant to this case and to the question whether the circumstances could be said to be materially different because the subsection is concerned only to exclude from consideration “accommodation” or “services” which, as defined, would not extend to the provision of equipment.  The subsection provides that a person’s circumstances may be the same and are not to be  regarded as materially different despite the fact that different accommodation or services may be required by the person with a disability.  The Commonwealth submits that the subsection thereby circumscribes the situations which may be presumed not to make a difference in the comparison of the situation of a disabled person with that of a person who is not.  It seems to me however that “accommodation” and “services” were especially dealt with for the reason that they are most likely to be seen as creating a substantial difference in such a comparison.  To treat them as concluding the question as to what constituted materially different circumstances would mean that the phrase in subsection 5(1) was unnecessary, and that the Act was not intended to have a wide application, as it clearly was.  None of these propositions can be correct.

The comparison in this case must be as between Mrs Humphries, with her needs to enable her to function as an ASO1, and other ASO1’s who are not disabled, but who have reasonable needs for equipment which would enable them to carry out their duties. Were the needs of the disabled person excessive, having regard to the circumstances of the employer, s 15(4) would not render a refusal or failure to provide equipment as discriminatory. That provision was found not to apply to this case.

The comparison adverted to was not undertaken by the Commissioner.  The only direct comparison was with another disabled employee, which seems to have confirmed the Commissioner in her view that there was no satisfactory excuse for the failure to provide the equipment.  The Commissioner’s findings otherwise were to the effect that DEET simply failed to provide what Mrs Humphries needed to enable her to carry out her duties as an ASO1. 

The reasons do not explain how the other enquiry posed by the question, as to the reason for any different treatment, is to be answered, save that they would appear to treat as discriminatory an unfulfilled need brought about by the disability in question.  The grounds for discrimination (“because of”) require more.  It would need to be found that Mrs Humphries’ disability brought about the less favourable treatment or caused it to occur:  HREOC v MIM, Lockhart J, 321-2.  As I have earlier outlined, that may be shown by actual motive or intention, or it may be inferred, especially where no other reason is evident.

The question which then arises is whether the conclusion reached must, in any event follow from the findings made.  If one were to apply the findings, which were made, to the question whether preferential treatment would have been given to a non-disabled officer’s request for equipment, an affirmative answer would not be compelled.  The “failure” to provide equipment referred, principally, to findings of delay.  The only refusal adverted to concerned the large screen.  The problem with access to the mainframe was not described as a refusal and this may have been because the request for it occurred relatively close to the time when Mrs Humphries ceased work.  Had the conduct, in each respect, amounted to a plain refusal, it may have been possible to infer that other employees might not have encountered similar problems.  The findings, however, do not go that far and, as I have said, the necessary comparison was not undertaken.  The findings leave that question and that as to the reason for any different treatment unanswered.  A finding that DEET’s performance, and the explanations offered, were unsatisfactory does not provide that answer.

As I have earlier mentioned, the Commissioner appears to have been influenced, to an extent, by the notion of obligations on the part of DEET towards employees in Mrs Humphries’ position. Counsel for Mrs Humphries indeed submitted that the DDA incorporated the concept of an implied obligation to disabled employees and referred to Re Saskatchewan Human Rights Commission v Canadian Odeon Theatres Ltd (1985) 18 DLR (4^th) 93 (“Huck’s case”) and to the objects of the DDA which, it was submitted, ought to be interpreted broadly and, in effect, to require the fulfilment of a duty towards disabled employees to enable them to function at this capacity. I do not think the stated objects of the DDA go that far. Relevantly, they provide for the elimination of discrimination, which is to say wrongful differential treatment, in the workplace. The obligation upon employers, then, is not to discriminate against disabled employees because of their disability. An unreasonable refusal to assist them may amount to wrongful conduct in a particular case. Section 5 however does not permit the question, as to whether there is discrimination, to be answered in the affirmative on each occasion where an employer has in some way failed to assist a disabled employee. The questions which must be addressed, to which I have referred to earlier, require more.

The Inquiry Commissioner has not addressed the questions posed by the section - whether the treatment received was different and the reason for any such treatment – as is necessary to a conclusion of discrimination.  Rather, the Commissioner appears to have concluded it by reference only to the fact of refusals and failures to provide equipment which were necessary to Mrs Humphries.  Errors of law are therefore disclosed. 

I have not dealt with other grounds stated by the Commonwealth which sought to review the findings of fact themselves.  In my view however the determination of discrimination in employment because of failures to provide equipment must be set aside.  It remains to consider the other decisions made.

1. Failure to allow further training
   Section 15(2)(b) provides that it is unlawful to discriminate by denying or limiting the employee’s access to promotion or training. On this topic one is able to infer, from the Commissioner’s findings, that the treatment was different from that which would have been given to other employees. It seems implicit in the reasoning that training would normally be provided, as a matter of course. The statutory enquiry which the reasons do not address is what were the grounds for any such different treatment. The finding that management in the Area Office did not accept that she was able to do the courses appears to have been rejected by the Commissioner, on the basis that Mrs Humphries believed she could. It does not necessarily follow however that DEET’s treatment was because of Mrs Humphries’ disability, in the sense referred to above. The alternative view open was that it was based upon a genuine belief as to the level of her ability. It will be necessary to remit the matter for determination of this question also.

1. Appointment subject to competencies
   The findings made here permit of a conclusion of discrimination.  The decision was, as the Commissioner found, unusual.  It disadvantaged Mrs Humphries.  The only reason for it, the Commissioner inferred, could be Mrs Humphries’ disability.  That appears to have been open on the findings made.  No error of law is disclosed.

1. Termination of employment
   I take the Commissioner’s decision to be of discrimination by dismissing Mrs Humphries (s 15(2)) and not making a general finding of discrimination on account of the conduct which had been dealt with separately.  The question here focuses upon the causal relationship required between Mrs Humphries’ disability and the cessation of her employment. 

At a factual level the Commissioner did not accept that the doctor’s opinion, that Mrs Humphries was limited in her capacity to undertake her work, was a proper or “satisfactory” basis for termination of employment.  The Commissioner did not appear to accept it as accurate.  Rather, the Commissioner reasoned to the stated conclusion that “the termination was brought about by and thus on the grounds of Mrs Humphries disability” because the stress she suffered was the cause of her inability to work and it had been produced by DEET’s failures as found.  A similar problem, in dealing with the questions posed by the subsection earlier identified, arises here.  It is clear enough that the Commissioner did not accept the report of the physician as reasonably based and preferred the opinion of the psychiatrist, Dr Wilkie.  A conclusion that Mrs Humphries’ inability to continue work was stress-related does not however answer the question as to the reason for the dismissal by DEET.  These are matters which the section requires to be addressed.

Conclusion and Orders

Errors of law have been shown with respect to the conclusions of discrimination, save one, in the Commissioner’s failure to answer the questions posed by s 5(1) DDA. In the circumstances however that determination cannot stand alone. The entire matter must be remitted to the Human Rights and Equal Opportunity Commission for determination according to law. I intend, of course, no criticism of the Inquiry Commissioner in concluding that HREOC ought to be differently constituted on the rehearing. The reason for requiring that to be undertaken is the need to preserve the perception of a fair hearing: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (Northern Rivers) (1990) 26 FCR 39, 43.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel

Associate:

Dated:             25 August 1998

Counsel for the Applicant:	Ms A Phillippides
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr M Robertson
Solicitor for the Respondents:	Welfare Rights Centre
Date of Hearing:	28 May 1998
Date of Judgment:	25 August 1998