Cook v Oberon City Council
[2010] FMCA 624
•19 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COOK v OBERON CITY COUNCIL | [2010] FMCA 624 |
| HUMAN RIGHTS – Disability discrimination – whether applicant’s employment was terminated because of disability – no discrimination established – application dismissed. |
| Australian Human Rights Commission Act, ss.46PH, 46PO Disability Discrimination Act 1992, ss.4, 5, 10, 15 |
| Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62; (2003) 217 CLR 92 Zhang v University of Tasmania [2009] FCAFC 25 Bell v Lever Brothers Limited [1931] UKHL 2; [1932] AC 161 Gill v Colonial Life [1912] VLR 146 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Hafez v Warilla Women’s Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 |
| Applicant: | Lee Cook |
| Respondent: | Oberon City Council |
| File Number: | SYG 425 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 25 May 2010 26 May 2010 |
| Date of Last Submission: | 8 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms D Reid |
| Solicitors for the Applicant: | Higgins Lawyers |
| Counsel for the Respondent: | Mr P Ginters |
| Solicitors for the Respondent: | Middletons Lawyers |
ORDERS
The application made on 1 February 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYG 425 of 2010
| Lee Cook |
Applicant
And
| Oberon City Council |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is an application filed in the Federal Court of Australia on 1 February 2010 under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”) (formerly the Human Rights and Equal Opportunity Act 1986 (Cth)). This follows the termination of the applicant’s complaint by a delegate of the President pursuant to s.46PH(1) of the AHRC Act on 15 December 2009 as there was no reasonable prospect of the matter being settled by conciliation. On 26 February 2010 Buchanan J ordered that the matter be transferred to the Federal Magistrates Court of Australia.
The applicant, Mr Lee Cook, through his representative complained to the Australian Human Rights Commission (“AHRC”) by letter dated 28 May 2009 in relation to events arising from his employment and subsequent termination from the Oberon Council (“the Council”).
Mr Cook’s complaint to the AHRC alleged discrimination on the grounds of disability and unfair treatment said to arise from a workers compensation claim.
In his complaint to AHRC, the applicant outlined that:
“The employer terminated me due to a past workers compensation claim with another employer despite pasing [sic] a pre employment medical and disclosing my condition at that medical”.
He also indicated that:
“I have lost employment from the major employer in my region for which I am suitably qualified and suffered psychological injury as a result”.
In lodging the complaint, he sought compensation and reinstatement to his position with the Council.
A delegate of the President of the Commission was satisfied that there was no reasonable prospect of the matter being settled, and terminated the complaint pursuant to s.46PH(1)(i) of the AHRC Act.
Application
Mr Cook raises the following grounds in his application:
“Claim is for unfair dismissal arising from disability discrimination in relation to employment and the applicant alleges breach by respondent employer of Disability Discrimination Act 1992.
The AHRC Act confers on this court jurisdiction as the complaint was terminated under section 46PH of the AHRC Act.
Notice of Termination issued 15 December 2009 by delegate of Australian Human Rights Commission attached to Form 167 and marked ‘A’.
Letter of decision dated 15th December 2009 of delegate of Australian Human Rights Commission attached to Form 167 and marked ‘B’”
In the attached “Form 167”, the claim to the Court was stated as: “… based upon the same factual matters as made to the Human Rights commission complaint”.
Mr Cook made claims for reinstatement, damages and costs. He sought a remedy in the form of an apology from the respondent, compensation and reinstatement, although these were modified during the course of the proceedings.
Relevant Law
Section 5 of the DDA provided:
“Disability discrimination
(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), the 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.”
Section 10 of the DDA provided:
“Act done because of disability and for other reason
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.”
Section 15 of the DDA provided:
“Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’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 condition 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.
(3) Neither paragraph (1)(a) nor (b( renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
(4) Neither paragraph (1)(b) nor (2)(c) renders 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.”
Before the Court
At the hearing before the Court the applicant was represented by Ms D Reid of counsel. Mr P Ginters of counsel appeared for the respondent.
At the beginning of the hearing Ms Reid confirmed that, having gone through all the documents, the applicant based his attack on s.5 of the Act, and did not invoke any claim of indirect disability discrimination pursuant to s.6.
However she then indicated that she may change the focus of that once she had been through the documents again. For the sake of clarity, no leave was granted for the applicant to amend his pleading in this way.
Facts Not In Dispute
The relevant background not in dispute is:
1)Oberon Council advertised to fill an employment vacancy for a Minor Plant Operator in early 2009.
2)Mr Cook was interviewed for this position by Mr Ian Tucker, the Council’s Works Manager, and Mr B Roberts on 18 February 2009. ([4] of the affidavit of Mr Ian Mark Tucker of 5 May 2010)
3)After the interview Mr Cook attended a medical examination at the Council’s request on 25 February 2009. (Annexure B to the affidavit of Mr Ian Mark Tucker of 5 May 2010.)
4)The applicant was offered the position. This was confirmed by letter dated 4 March 2009. (Annexure A to the affidavit of Mr Bruce Fitzpatrick of 5 May 2010.)
5)The applicant commenced employment on 16 March 2009. ([5] of the affidavit of Mr Bruce Fitzpatrick of 5 May 2010, Annexure A to the affidavit of Ms Maisie Richardson of 5 May 2010.)
6)His employment was terminated on 17 March 2009. The Council provided Mr Cook with a letter setting out its reasons. (Annexure C to the affidavit of Mr Ian Mark Tucker of 5 May 2010.)
The details of the position are indicated in the advertisement which appears as Annexure A to the affidavit of Mr Ian Mark Tucker dated 5 May 2010:
“The position would suit an applicant who is interested in receiving training and making a career in road construction and maintenance, water and sewer, or parks and gardens.
Applicants with education to at least year 12 and who are interested in learning the operations of Council’s water and sewerage treatment words are also encouraged to apply.
A knowledge of road construction or maintenance or plumbing is desirable as are skills in plant operation and servicing, using power operated tools and concrete finishing. Certificates in OH & S Induction Construction, First Aid, Traffic Control and Chainsaw operation are also desirable
Applicants who have skills and experience in operating minor plant items are encouraged to apply as opportunities for promotion arise from time to time.
Conditions of employment are in accordance with the Oberon Council Notional Agreement Preserving the Local Government (State) Award. The Minor Plant Operator position is classified as Grade 3, the salary range for the position is $656.71 to $761.79.”
The Relevant Incidents
1. Mr Cook’s Relevant Medical History and the Workers Compensation Application
Mr Cook’s employment history since leaving school for the most part was as a chain saw operator, general labourer, fencer and tanker operator.
In 2002, while employed with State Forests (NSW), Mr Cook suffered injuries to both knees.
Mr Cook consulted a Dr Burgess in relation to his injury. Dr Burgess prepared a report in April 2008 in support of a Workers Compensation claim (RE2). Relevantly, the report makes reference to Mr Cook having told the doctor that the pain following the injury was extreme and took some weeks to settle to a tolerable level.
Mr Cook made a Workers Compensation Commission application in December 2008 (RE1). This was lodged on his behalf by his current solicitors. In this he claimed the difference between actual earnings and comparable probable earnings ($600p/w) (see RE1 at 5.2). He also claimed $26,000 in relation to injuries to both his knees and $25,000 for pain and suffering (see RE1 at 5.6).
At the time the applicant applied for employment with the Council the Workers Compensation application was still on foot, however the extent of the compensation sought was reduced. The degree of impairment of Mr Cook’s knees was referred to an approved medical specialist for assessment. This was done as a result of an agreed resolution between Mr Cook and State Forests (NSW). A Certificate of Determination dated 2 February 2009 showing orders made by consent by a relevant arbitrator was put before the Court (see “RE3”).
2. The Employment Interview
The applicant attended an employment interview on 18 February 2009 with Mr Tucker. Mr Tucker’s evidence was that there had been 15 applicants for the position. He interviewed six people, one of whom was Mr Cook.
Mr Tucker’s evidence is that at the interview the following was said ([4] of the affidavit of Mr Ian Mark Tucker of 5 May 2010):
“[Mr Tucker] ‘Do you have any problem undertaking a medical?’
Mr Cook replied ‘No’. I then said words to the following effect:
‘Do you have any conditions which may be uncovered or likely to make you unsuitable to perform the duties required in the position?’
Mr Cook said ‘No’.”
Of the six interviewees Mr Cook and two others were invited to attend a “pre-employment medical”. (See Issue 3 below.)
3. Medical Assessment Documentation Relevant to Employment with Oberon Council
Mr Cook completed a pre-employment “Medical Assessment” on 24 February 2008 (Section “A” to the annexure of the affidavit of Ian Mark Tucker – see [6] of the affidavit).
His answers to the questions were as follows:
Mr Cook attended a medical examination with a doctor nominated by the Council. His evidence is that he told the doctor about his pre-existing problems with his knees but that he nonetheless would be able to perform the duties of the position.
In the report the doctor reported the range of movement in both knees as being “full” (see Section “B” to the annexure of the affidavit of Ian Mark Tucker – see [6] of the affidavit).
Under “Other Comments to Employer” she reported:
“Previous knee injury with mild impairment to climbing up (slow) also mild hearing impairment”.
Further
“ – Knees both side mild restrictions with climbing [indecipherable] (previous injury)”.
4. The Events of 16 March 2009
Mr Cook’s evidence was that after starting employment he spoke to the Council’s “Human Resources Manager” to arrange time off work to see a doctor in relation to his Workers Compensation claim in relation to his knees.
He stated that during induction conducted by Ms Maisie Richardson he had been told about filling out a form for taking leave. He advised Ms Richardson that he wanted to take leave to see a doctor.
Later that day Ms Richardson asked him if he had any doctors reports in relation to his knees. He said that he was unsure. The next day he gave her a bundle of documents that were in his truck. She looked through these. He then worked until later that day when he was taken to the office where Mr Tucker gave him a letter and informed him he was dismissed. The letter had been signed by Mr Leigh Robbins, the Director of Engineering, in the absence of the General Manager Mr Bruce Fitzpatrick. The evidence was that Mr Robbins had authority to do so in his absence.
It would appear that this bundle of documents was headed: “Employment Capacity Assessment Report”, compiled by “Mindful Solutions”. It was dated 21 January 2009. Amongst other things it comprised assessments of Mr Cook’s employment capacity in relation to his knee injury (AE2).
Ms Richardson’s evidence differs in at least one respect. She states that when she initially asked Mr Cook if he had any medical reports (in the morning) he replied that he did not. It was only after she told him that a full functional assessment would need to be carried out that he then went to his vehicle and returned with a bundle of documents.
A second point of difference was that Mr Cook’s evidence was that he told Ms Richardson about the injury to both his knees. Her evidence was that he initially only told her about an injury to his right knee.
A third point of difference was that Mr Cook said she kept the documents he gave her. She said she scanned through them and then returned them to him.
5. The Decision to Terminate
Ms Richardson’s evidence is that after she had conducted an “induction” process with Mr Cook on 16 March 2009 and became aware of the extent of his knee injury she informed Mr Robbins. ([10] of the affidavit of Ms Richardson dated 5 May 2010.)
Mr Robbins organised a meeting for 17 March 2009 to discuss Mr Cook’s employment. Present were various Council employees, in particular Mr Tucker and Ms Richardson ([4] of the affidavit of Mr Robbins and [11] of the affidavit of Ms Richardson), as well as Ms Amanda McGrath and Ms Vanessa O’Neill ([4] of the affidavit of Mr Robbins and [11] of the affidavit of Ms Richardson).
On her evidence Ms Richardson told the meeting that Mr Cook had not revealed the extent of his injury until she sought more information from him. Mr Robbins and others at the meeting were more concerned about Mr Cook’s dishonesty at the employment interview and in his pre-employment medical report which he completed.
Mr Robbins evidence was that the decision made to terminate Mr Cook’s employment was because he had lied at the employment interview, made incorrect entries in the pre-employment medical documentation and lied to Ms Richardson ([4]: See also Attachment “A”).
6. The Notice of Termination
The letter of termination was signed by Mr Robbins in the absence of the General Manager on 17 March 2009 (see his affidavit at [5] and Attachment “B”). It is in the following terms:
“Dear Lee,
Termination of Employment with Oberon Council
It is Council’s belief that you did not disclose relevant information during the interview process and misled Council by not answering all questions honestly. By doing so you did not act in good faith in the employment relationship between Council and yourself. Both Council and yourself have a duty of good faith and confidence. As a result of your dishonesty, Council has made the decision to terminate your employment as of today, Tuesday 17th March 2009.
Your pay for the two days worked plus two weeks in lieu of notice will be forwarded to the address provided by you to the Payroll Department.
Yours sincerely,
for Bruce Fitzpatrick
General Manager”
Mr Robbins gave the letter to Mr Tucker and asked him to deliver it to Mr Cook ([8] of the affidavit of Mr Tucker dated 5 May 2010). Mr Tucker gave it to Mr Cook and said words to the effect of ([9] of the affidavit of Mr Tucker dated 5 May 2010):
“The Council has decided to terminate your employment because you failed to tell us about your injury and you failed to fully disclose the extent of your injury during the medical. We see that as dishonesty and that is the reason you are being terminated.”
7. The Subsequent Discussion with Mr Fitzpatrick
Mr Cook’s evidence was that, after receiving the letter of termination which said that his employment was terminated because of his “dishonesty”, he then approached the Council’s Manager, Mr Bruce Fitzpatrick, some time later to ask why he had been “sacked”.
The applicant’s evidence was that Mr Fitzpatrick told him that the Council had to sack him because otherwise the Council would have to “take over” his workers compensation claim and that the Council was not prepared to make their insurers liable for “another employer’s problems”.
Under cross-examination Mr Cook said he had no recollection that Mr Fitzgerald said the latter part of the claimed statement, relating to the Council not wanting to be liable for another employer’s problems.
Mr Fitzpatrick’s evidence was that Mr Robbins had told him “something” on 17 March 2009 that Mr Cook had been dishonest in not disclosing in his interview or pre-employment medical report that he had an outstanding injury. He agreed with Mr Robbins that Mr Cook’s employment should be terminated for dishonesty.
He denied making the statements attributed to him by Mr Cook following his question as to why he had been sacked. However in cross-examination he said that he had no clear recollection of what had been said. He agreed his short term memory loss could affect his memory about relevant events concerning Mr Cook.
Consideration – Part One
It must be said that one difficulty for the applicant before the Court was the dissonance between the ground as pleaded in the application and the way he sought to present, certainly initially, his case.
The applicant’s complaint rests on an application made pursuant to the Court’s jurisdiction in the Australian Human Rights Commission Act 1986 (Cth) and the Disability Discrimination Act 1992 (Cth). The resolution of this case and the Court’s treatment of a large part of the applicant’s case (subject to such things as the Evidence Act 1995 (Cth)) must be seen in the framework set by the relevant statutes and case law.
This is not an unfair dismissal case. This is not a case made by invoking any industrial or workplace legislation.
This is a case where, with reference to the relevant test (see further below), what is at issue is whether the Oberon Council, that is its officers, conducted themselves towards the applicant, because of a perceived or claimed disability, in a manner that was different to how they would have treated another person who did not have the disability. That is, they discriminated against him.
The difficulty for the applicant before the Court is that a large portion of his case was directed to matters relevant to an industrial matter, or even a workers compensation matter, and not to a disability discrimination matter.
No criticism whatsoever is directed to Ms Reid in making this statement. It was clear that her submissions flowed from the instructions given and brief provided.
This approach by the applicant can best be seen in written submissions filed prior to the hearing and prepared and signed by the applicant’s solicitor, and not counsel. Such submissions, both by their focus and language, were directed to jurisdictions not exercised by this Court or alternate jurisdictions and certainly not what was invoked by the ground and jurisdiction contained in the application to the Court.
As Mr Ginters submitted, the applicant may have had some basis for making the contentions raised if the applicant had proceeded in those jurisdictions in other Courts.
The difficulty for the applicant was also exemplified when, during the course of the hearing, the applicant’s solicitor, who was described as an “expert in workers compensation” matters, took the unusual step, with counsel present, of making oral submissions on the efficacy, conduct and outcome of the applicant’s Workers Compensation application, some of which related to events after the critical events of February and March 2009.
I ultimately and subsequently understood Ms Reid to explain this, and other references to “procedural fairness” (or more correctly the procedural unfairness), the “harshness” of the applicant’s employment termination, and the hasty or speedy conduct in effecting such termination, to be put to the Court not for the purpose of arguing any “unfair dismissal”, but for the purpose of allowing the inference to be drawn that the Council managers became concerned when they discovered that Mr Cook had made a workers compensation claim, which led to a concern that the Council would have to take over responsibility for any liability arising from such a claim, and ultimately a concern that the applicant would not be able to perform his duties because of the disability that was the subject of that claim. That is an alternate theory of the case to that put by the Council.
The Council responds that Mr Cook’s employment was terminated for reason of his dishonesty in not disclosing, when the opportunity was presented and relevant questions were asked of him, that he had made a workers compensation claim. Such failure was seen to go to the matter of trust between the Council and an employee and that such actions had led to a loss of confidence that Mr Cook could be trusted. That this factor was critical to the proper functioning of the Council’s activities. In short, the termination of his employment was for reason of his dishonesty and the damage that this dishonesty had done to the relevant relationship, and not for reason of, or arising out of, his disability.
The applicant’s case proceeded on three limbs. The first was to attempt to show that he had not lied. The second, drawing on s.10 of the Disability Discrimination Act, that even if this was a factor (although not conceding that he had lied) it was also the case that the Council acted in the way that it did because of his disability. The third was to attempt to show that Mr Cook was in fact not disabled, or that the damage to his knees was not such as to prevent his performing the duties for which he had been employed.
One of the deficiencies in the applicant’s case as presented was that, particularly in relation to the latter proposition, no direct evidence was presented as to how the Council discriminated against the applicant with reference to the relevant test as set out in Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62; (2003) 217 CLR 92 (“Purvis”).
Or indeed to explain if he was not disabled, or not incapacitated to the extent that was set out in the documents supporting the Workers Compensation claim (at least initially) how this related to the Act and was to be seen in the context of the Purvis test. If Mr Cook was not disabled then the question arises as to why he has sought relief under the Disability Discrimination Act.
Though not clearly raised in argument, one answer may be a reliance on that part of the definition of disability as referred to in s.4(k) of the DDA:
“disability, in relation to a person, means:
… and includes a disability that:
…
(k) is imputed to a person”.
However even in this context what is remarkable was that no reference was made to Purvis by the applicant before the Court, let alone to lead evidence directly relevant to critical parts of the test. Nor were the respondent’s witnesses cross-examined as to their evidence going directly to all aspects of the test.
The critical question in this case, posed as a result of Purvis, is to ascertain the reason as to why Mr Cook was treated in the fashion that he was by Oberon Council’s officers. Was he treated less favourably, and if so, was it “because of” or “by reason of” his disability?
What Mr Cook was required to establish before the Court to succeed in this claim of unlawful discrimination which contravened the Act was at least that:
1)He suffered from a disability with reference to s.4 of the Act.
2)The Council discriminated against him.
3)This was because of his disability, with reference to s.5 and s.10 of the Act.
No direct submissions were made in relation to s.4. While much evidence was led in relation to the state of Mr Cook’s knees, none of it was put or referred to in the context of s.4.
For the purpose of s.4, however, an inference can be drawn from the evidence presented, and how submissions were otherwise made, that Mr Cook’s position is that the Council, or more accurately its officers, imputed a disability to him such as to come within the meaning of disability set out in s.4(k) and relates in that context to a part of s.4(a) (partial loss of bodily function – his knees or right knee), or possibly a part of s.4(e) (malfunction of a part of a person’s body – his knees or right knee).
Such an understanding is consistent with Mr Cook’s evidence that, while he had sustained some injury to his knees in 2002, this was not such as to have caused him to take time off work up to the time of his employment termination. That notwithstanding assertions made in connection with his Workers Compensation claim as to the extent of his knee injury and incapacity (at least initially), he did not lie or mislead Council officers in relation to the three occasions of the employment interview, the medical assessment, or the induction session.
The Council also did not address s.4. This is understandable given the way the applicant chose to run his case. However, given the general tenor of submissions, what can be understood relevantly as the Council’s position was that whether or not the applicant had a disability, the extent of any disability, and whether or not he actually lied about it was not relevant to the issue before the Court.
The applicant says that the discriminatory conduct on the part of the Council officers was that the Council terminated his employment because of the perceived view that he had a disability which had led to a Workers Compensation claim, and that the Council sought to avoid responsibility for the consequences of any such claim.
It must be said that the logic of that position was not supported by any evidence or even real argument that the Council would be liable or have to assume liability for any claim made against or in respect of a previous employer.
Nonetheless this too is not relevant to the disposition of the issue before the Court.
In a very real sense it is not whether the applicant acted honestly or misled the Council, but rather the relevant way the Council officers dealt with what they perceived about the applicant.
It is the case as the Council submits, that the Court is required to consider the “true basis” or “real reason” for the actions of the Council’s alleged discrimination (see Purvis at [13], [166] and [236]). The consideration of the applicant’s claim also requires a comparison with a person displaying the same behaviour as Mr Cook, but without the perceived disability.
As a note of caution this is not a comparison to a person without the disability and without the behaviour (see Zhang v University of Tasmania [2009] FCAFC 35 at [63]).
The applicant submits that the Council’s officers employed him. That at worst he was a person with a “minor” disability. That he did not relevantly mislead at the employment interview. That at some point prior to the commencement of work he notified the Council, through his revelations in the medical assessment process, of his minor disability. He was employed after that disclosure was made.
Mr Cook contends that he was then dismissed on the basis of that disability or a consequence that was perceived to flow from that disability. Further, that this was done on the basis of not having been asked at the interview or at any appropriate time the relevant question when evidence of his disability was presented. Further, that his dismissal was conducted in haste, was swift and lacked acknowledgement of and adherence to principles of fairness.
In all, therefore, his dismissal was conducted in circumstances where he was treated less favourable because of his disability.
The difficulty for Mr Cook is that he has provided no evidence that he was treated less favourably than a relevant comparator. That he was treated “less favourably” as against some notions of procedural fairness or less favourably as against principles of industrial or employment requirements or even that he was treated “harshly” may indeed be the case. But this does not assist in these proceedings.
The relevant test requires Mr Cook to show that, given the real reason for his dismissal, he was treated less favourably by the Council than it had treated or would treat another person in essentially the same set of circumstances who did not have the claimed disability.
Mr Cook’s case, it must be said, relied far too much on attempting to “prove” the proposition that the Council should have acted differently towards him. For example that Council officers should have taken time to ascertain the extent of his disability, and that he was honest in his dealings.
The question of course is whether the Council would have acted differently with reference to a comparator who displayed the same behaviour but was a person without the disability.
In oral submissions Ms Reid did assert that the applicant was treated differently because he had a disability. That the Council officers saw that he had a disability and treated him differently to the way they would have treated someone who had told a trivial lie and did not have a disability.
The submissions and the presentation of relevant evidence, however, then went on to focus or “explain” the Council’s actions on the basis that the Council officers preferred not to make further enquiries because this may have revealed that Mr Cook had not been dishonest and they would therefore be denied the excuse to sack him.
The applicant’s case therefore needs to be understood in the context that the Council sought to hide the fact that the reason for the dismissal was the existence of the Workers Compensation claim and the perceived disability, and not about any dishonesty.
Ms Reid submitted that there was a “huge onus” on the applicant because there was no evidence from the Council as to how they deal with their employees. That may be the case, but it is for the applicant to make out his case, not for the Council to make it out for him.
Further, this submission appears to overlook the evidence of Ms Richardson and Mr Fitzpatrick.
Ms Richardson gave evidence that she recalled at least one employee who had disclosed an existing injury prior to being employed. In the circumstances a functional and risk assessment was conducted. This was to be contrasted with what was done in Mr Cook’s case because of his lack of candour and his dishonesty. Ms Richardson gave evidence that the Council would accommodate employees with pre-existing injuries, but this would be in circumstances where the employees have been honest about any such injuries.
Ms Richardson was not cross-examined on this part of her evidence. While I had some difficulties with her evidence (see below), this evidence remains unchallenged and its credibility is not diminished by the concerns set out elsewhere in this judgment.
Mr Fitzpatrick gave evidence that during his time with the Council, since 1993, he could recall other employees who had disclosed existing injuries during the pre-employment medical process. His evidence was that the Council employed such people and made enquiries as to additional support for them. His evidence was that if Mr Cook had acted in this way (that is, made disclosure) he would have been treated in a similar fashion.
In cross-examination Mr Fitzpatrick was asked only one question as to the Council’s position on employing persons with disabilities. Amongst other things, this elicited evidence that there were a number of employees, one of whom was identified by name, who have been engaged in recent times and who suffered from back injuries. His evidence was that this employee had disclosed his injury at the interview for employment, was given employment, and was still employed by the Council.
While there was evidence that Mr Fitzpatrick had been diagnosed through an “aged care team” with short term memory loss and had undergone a number of medical procedures, there was nothing in the presentation of his evidence or otherwise arising from the evidence to cast doubt on the credibility of those things that he could remember, in particular his evidence regarding treatment of other employees.
What must be said again is that this evidence does not assist in relation to the comparator part of the Purvis test. As I have stressed that test requires a comparison with a person who did not have the applicant’s disability.
It does assist in part however in going to the consideration of the real reason for the Council’s termination of Mr Cook’s employment. The Council’s theory of the case is that they do not have a practice or policy of discriminating against persons with disabilities. That, notwithstanding Ms Reid’s characterisation of Ms Richardson’s relevant evidence as sounding like a Council “policy statement”, what remains is that persons with disabilities have been accommodated and continue to be accommodated at Oberon Council.
Without a successful challenge it supports the Council’s contention, at least inferentially, that Mr Cook’s dismissal from employment was not about his disability, perceived or otherwise, or even about Workers Compensation liability, but it was because he misled them on a number of relevant occasions.
Ms Reid properly accepted that the applicant had to make out his case. But that case focussed on seeking to persuade the Court that Mr Cook’s level of honesty in his dealings with the Council at the interview and medical assessment process was such that he should not have been treated in the fashion that he subsequently was. That is, that “no reasonable person” would have dismissed him without further investigation or the conduct of some appropriate procedural fairness process.
The respondent took the Court to relevant parts of Purvis. It is well to be reminded:
“[11]… The circumstances to which s.5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the same violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant’s argument lies in the contention that, because the pupil’s violent behaviour was disturbed, and resulted from a disorder, s.5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case…
[13] Similar considerations arise in respect of the related issue of identifying the ground of the first respondent’s action, which is to be considered in the light of both ss.5 and 10 of the Act. The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. It is the school authority that is the alleged discriminator, and it is the reason or reasons for action of the responsible officers of the school authority that is or are in question. It is their conduct that is to be measured against the requirements of the Act. If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable forhim to say that his disability resulted in his expulsion. However, ss5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision as the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people.” [per Gleeson CJ, footnotes omitted].
“[166] The weight and course of authority no longer accepts that the ‘but for’ test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the ‘but for’ test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a ‘but for’ test. Correctly, it focuses on the ‘real reason’ for the alleged discriminator’s act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan” [McHugh and Kirby JJ, footnotes omitted].
“[236] For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed ‘because of’ disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’” [Gummow, Hayne and Heydon JJ].
Whatever action the Council took against Mr Cook, there was nothing from the applicant to show discriminatory conduct or action in the context of a comparator. Nor was there, and nor in context could it be expected, any evidence from the respondent of a comparison with a person with Mr Cook’s disability. By contrast however there was clear evidence from the respondent that persons with disabilities were engaged and continued to be employed by Council. The critical and relevant difference being that such persons had made full disclosure to the Council at the time of their employment engagement. This was put in answer to the attack that the Council discriminated against Mr Cook on the basis of his disability.
The critical question for the Court however is what was the real reason, the true basis, for the Council’s termination of Mr Cook’s employment. He says it was because of his disability or perceived disability and the desire for the Council to avoid the consequential workers compensation liability. That the claim of dishonesty was merely a “cover up” to hide the real reason for the termination. Council says it was because of his dishonesty and that the loss of trust meant that there was no longer the basis for a working relationship.
Both parties focussed on three events that were said on the respondent’s side to show that Mr Cook had lied and on the applicant’s side that he had not lied but that his actions or claimed omissions were being used as the excuse to cover up the real reason for the dismissal.
The Employment Interview
Mr Cook’s evidence was that he attended the employment interview and, from his perspective, it “went well”.
He gave evidence that he was not asked any questions regarding any workers compensation claim. Nor was he asked any questions about previous injuries. He was asked whether there was anything that would stop him from performing the duties of the position. He answered, in his view truthfully, that there was not.
Mr Tucker’s evidence factually is essentially to the same effect. Of course other than for the subsequent realisation as to the misleading nature of Mr Cook’s answers when put in context of the workers compensation circumstances either not known or not put at the relevant time. During cross-examination the applicant sought to focus on one word in Mr Tucker’s affidavit: “Do you have any conditions which may be uncovered” (that is, during a medical examination process) (at [4] of the affidavit of Mr Tucker (emphasis added)).
This evidence was compared with a relevant “file note” written by Mr Tucker on 18 March 2009 (Annexure “D” to his affidavit) where the word “uncovered” was not used. At best I understood the applicant’s submissions to be that the omission of that word from his file note made closer to the relevant event, yet its use in an affidavit some time later, was suggestive that the Council officers were seeking to hide or “cover” the real reason for the dismissal. I understood this to derive in part from some sinister meaning to be ascribed to the use of the word “uncovered” and that it was a later invention for the purpose of misleading as to the true nature of the Council’s objections. That is, to paint Mr Cook as being dishonest.
This can at its best be charitably described as a weak submission. First, as Mr Ginters reminded the Court, Mr Tucker’s evidence now was that he said: “… words to the following effect” when he used the word “uncovered”. The later use of that word is consistent with the thrust of the wording of the file note.
Second, of all the witnesses before the Court in this matter Mr Tucker presented as the most impressive. He gave his evidence in a considered and forthright manner. He was responsive to the questions asked and did not appear to be following some predetermined “script”. He readily made concessions in cross-examination where appropriate. His general demeanour in the witness box, particularly when compared to some of the other witnesses, only added to the air of credibility.
The facts that emerge are that at some time in the interview, as with other suitable candidates, Mr Cook was asked to attend a medical examination. In this context he was asked whether any medical condition would emerge that would make him unsuitable to perform the duties of the position. He answered in the negative.
This answer must be seen in light of the fact that at some earlier time, and certainly at that time, Mr Cook had lodged a Workers Compensation claim in relation to the injuries to his knees sustained in 2002.
The report from Dr P R Burgess dated 22 April 2008, which set out the extent of the applicant’s knee injuries and incapacity and which was used as part of his workers compensation application, showed extensive incapacity and impairment (RE2).
With reference to RE1 – Workers Compensation Commission application at paragraph 5-6, and RE3 – Workers Compensation Commission Certificate of Determination – Consent Orders dated 2 February 2009, this claim as it stood at the relevant time, that is at the time of his employment interview, subsequent related medical examination and his discussion with Ms Richardson, showed that the applicant continued to press that he had a 19% whole body impairment. In context this was with reference to his knees. This was clearly not as extensive in terms of incapacity as first claimed.
But what remained of the Workers Compensation application and the doctor’s report put in support of that claim was that at the relevant time the applicant was asserting in that context at least that he had a significant (19%) whole body impairment injury and was seeking commensurate damages for that impairment. (See also AE2 discussed below at [142] to [144].)
His answer to Mr Tucker’s critical relevant question was that he knew of nothing that would prevent him from performing the duties of the position. A position which, with reference to the relevant duties (see [18] above), would require a certain level of mobility and agility.
In submissions the applicant’s representatives, based on the applicant’s evidence before the Court, sought to explain that his solicitors in the workers compensation matter (who also represented the applicant in the current matter) were seeking to obtain the “best possible outcome” for him. That Dr Burgess’s report should be seen in the context that Mr Cook’s injuries would be initially at least represented in “their worst possible light”.
That notwithstanding the position put in the Workers Compensation application as to the extent of the injury or difficulty with his knees and in particular as the extent of that injury and impairment with his knees had devolved as at the time of the interview (noting also AE2 discussed below), the applicant did not lie or misrepresent the situation when he was interviewed by Mr Tucker because his injuries were such that he could perform the duties of the position.
I have some difficulty with the submission that a misrepresentation or exaggeration in such an application is appropriate because in that area the starting point is to exaggerate the claim so that, ultimately, a satisfactory compromise can be achieved. But that of course is not at issue in the current proceedings. Nor is it a satisfactory explanation for the applicant’s conduct at the interview.
Ultimately it does not assist in the resolution of this case as against the test to be applied.
On the evidence I accept that Mr Cook, with respect, is a person of limited education, hard working, who had lived a life of hard manual labour, sometimes out of continuous employment with consequence that at times it was difficult to make ends meet.
He did not present as a person of great sophistication. I accept that the conduct of his Workers Compensation claim was managed by his lawyer and that Mr Cook may not have been across the detail.
But his lack of sophistication should not be confused as his being a person of low intellect. Particularly based on cross-examination by Mr Ginters, I formed the view that Mr Cook at least understood at the relevant times that he had made or caused to have made on his behalf a workers compensation claim that asserted or relied on claiming an injury to his knees of some extent beyond what would be regarded as minor.
But it is not ultimately what Mr Cook believed or even whether he was dishonest that is itself determinative in the relevant test. The relevant test requires consideration of the real reason that the Council terminated Mr Cook’s employment.
It is clear on the evidence that there were a number of players in the lead up to the decision to terminate the employment. Ultimately the evidence is that that decision was made by Mr Robbins. In that sense he is the alleged discriminator, with others feeding into his decision. The real reason therefore for the termination is to be discerned primarily by having regard to the relevant conduct and motivation not of Mr Cook but of Mr Robbins and those who contributed to his decision.
Whether Mr Cook sought to deceive at the interview with Mr Tucker, whether he told the truth as he understood it, or even if on any objective basis it could be established he probably told the truth or did not is not the issue. It is the understanding that Mr Tucker took away from the interview and that was then fed into the decision making process leading to the termination that is relevant.
Mr Tucker’s evidence in this regard was very clear. Whatever words were actually used at the interview, what he understood and what was ultimately conveyed into the process leading to the termination decision was that Mr Cook asserted that he did not know of any medical condition that would make him unsuitable to perform the duties of the position.
The Council Medical Assessment
As part of the pre-employment process Mr Cook was required to complete a medical assessment report. This essentially comprised two parts. That which he filled out himself and that which was completed by a doctor who was engaged by the Council for this purpose and reported to Council (see [6] and Annexure B of the affidavit of Mr Tucker).
It is clear that in that part of the medical assessment form completed by Mr Cook (Section “A” Medical History) there was no mention of any disability relating to his knees. Mr Cook made reference only to:
Dust Heat Noise (Fires, saws etc) / Chemicals have been over limit with [?] 2004 / Tablets [?] / Car accident mid 1980’s / Piles, Spider bite, broken arm.”
There was no mention of knees, remembering that at the same time Mr Cook had an active Workers Compensation application that asserted substantial injury or impairment to his knees (albeit as modified as a result of the Workers Compensation Certificate of Determination of 2 February 2009 (“RE3”).
However, it is also clear that when he attended a medical examination on 25 February 2009 with a doctor nominated by the Council Mr Cook told the doctor about his previous knee injury. The doctor reported:
“Previous injury to L/Knee – R/Knee click, difficult climbing”
Further and relevantly:
“Previous knee injury with mild impairment in climbing up (slow)…”
(Section C – Oberon Council Medical Assessment – “MFI1”.)
The doctor could not now be located to give evidence as to these matters. (See the affidavit of Jodie-Leigh Norman of 5 May 2010.)
As the evidence therefore stands I accept Mr Cook’s evidence that he told this doctor about his knee injuries. Further, that the doctor reported this to the Council. Although the evidence is unclear as to when and to whom in Council this report was directed or received. The import of this becomes clearer when regard is had to what occurred during Mr Cook’s induction into his employment, conducted by Ms Richardson.
The Induction Process
The decision to terminate Mr Cook’s employment was clearly precipitated by the relevant events of 16 March 2010 involving Ms Richardson and Mr Cook.
It must be said that I found Ms Richardson’s evidence to be unsatisfactory in some respects.
She was employed at the relevant time as the Council’s occupational health and safety and risk manager. It was part of her duty to conduct Mr Cook as a new employee through an “induction process”. She conducted this on 16 March 2009, Mr Cook’s first day of employment at the Council.
On her own evidence her duty involved ensuring that employees, like Mr Cook, would be provided with a safe working environment, including the creation of an environment that would accommodate and not aggravate any pre-existing medical conditions.
Yet her conduct in this matter was not to conduct a proper functional assessment of Mr Cook’s knees, nor even on her own evidence to ascertain the exact nature or detail of the condition of his knees. Despite her protestations to the contrary before the Court, what I took from Ms Richardson’s evidence in terms of her actual conduct was to go to Mr Robbins in great haste and to report that Mr Cook had lied or had attempted to mislead the Council, and that this had emerged during her discussion with him.
Her expressed concern for Mr Cook’s welfare, for example her evidence as to when he “winced” in pain when she drove him to his work location on the morning of the 16th, was at odds with her subsequent conduct in that when she then returned to the depot she immediately spoke to Mr Robins about Mr Cook’s injury (see [10] of the affidavit of Ms Richardson). I did not accept that she noted this in any context of concern for Mr Cook, but as a relevant observation supporting her view that he had lied about the extent of his knee injury and his capacity to do the job for which he had been employed.
While she also gave evidence that she returned to the depot to write a memorandum to Mr Cook, as best as it emerged from the evidence it appears she spoke to Mr Robbins first when she returned to the depot (see in particular [10] of Ms Richardson’s affidavit).
This timing is reinforced by the evidence of Mr Robbins, who said he recalled Ms Richardson coming to speak to him about Mr Cook after she had “just” completed his induction (see in particular the affidavit of Mr Robbins at [3]).
Ms Richardson’s evidence before the Court differed to that of Mr Robbins in relation to what exactly she reported to him. Before the Court Ms Richardson stressed that her concern was for Mr Cook and that he be given duties to avoid further injury to him. Before the Court she said she could not recall telling Mr Robbins at this time that Mr Cook had lied, nor anything about his workers compensation claim.
This is at odds with Mr Robbins’ evidence that Ms Richardson came to see him “just” after she had completed Mr Cook’s induction and that she told him she had discovered that he had failed to disclose to Council that he had a quite serious injury to his knees.
The catalyst for this appears to have been a bundle of relevant documents given by Mr Cook to Ms Richardson. This bundle is at least an “Employment Capacity Assessment Report” prepared by an organisation: “Mindful Solutions”, requested by solicitors in relation to Mr Cook’s employment capacity in relation to other proceedings (AE2).
It was not clear from the evidence whether any of the large number of other reports referred to, as for example: “Background Information” (at page 7 and page 35) were in whole or in part also provided to Ms Richardson by Mr Cook.
What is clear is that the report and the reports to which it referred made reference variously to the injury in 2002 while working with State Forests (NSW), “Workers Compensation”, “Workers Injury” and a large number of reports from occupational therapists, orthopaedic surgeons, and was concerned with Mr Cook’s capacity to undertake various and relevant employment tasks in light of the claimed injuries, including to his knees.
I accept on the evidence that what Ms Richardson took away and reported to Mr Robbins was not necessarily that Mr Cook had not disclosed his knee injury during his medical assessment process, but that, in light of the material which he had given her which included the reference to a large number of medical reports and the reference to the Workers Compensation claim, Ms Richardson formed the view that he had not revealed the extent, that is the serious extent, of the injury and ongoing consequences to his knees.
I agree with Ms Reid’s subsequent characterisation of Ms Richardson’s protestations in the witness box of her great concern for Mr Cook’s welfare. Her action in speedily reporting without any pause for consideration after having just scanned the bundle of documents provided by Mr Cook leads to the conclusion that her focus was to report what she saw as Mr Cook’s lies to Mr Robbins, and that the concern about welfare was at best subsidiary.
There are inconsistencies in evidence as to the timing of the provision of the bundle of documents. On one side I could tend to the evidence of Mr Cook because of some of the unsatisfactory or unclear explanations provided by Ms Richardson. For example the issue as to whether he told her he had a workers compensation claim, or whether it arose from the bundle of documents he provided, or elsewhere.
Although on Ms Richardson’s evidence she did not look at the documents in any detail, what was presented to her was at least a bundle of documents that asserted an extent of injury to Mr Cook’s knees that was inconsistent with his answer to the relevant question from Mr Tucker at the employment interview, and again to an extent inconsistent with what he had told the Council’s doctor as to the level of injury and incapacity.
In my view Mr Cook cannot have it both ways. His evidence was that he did not tell Mr Tucker about his workers compensation claim (and what it implied about his ability to do the duties required of the position for which he had applied) because someone in Centrelink told him not to talk to anyone about it. Even though, and even if his evidence is taken at its highest, he did not lie to Mr Tucker, by the time the bundle of documents was presented to Ms Richardson it was certainly open to her to view his conduct as having been deceptive.
The circumstances of whether Mr Cook lied to Ms Richardson on 16 March 2009 (his first day of employment) remain unclear in some respects. Whether Mr Cook at first denied having medical reports about his knees and only provided them after being confronted with the possibility of having to go for a “full functional assessment”, and he then produced the bundle of documents from his truck (as Ms Richardson says) or whether he replied he was not sure what he had and brought the bundle in the next day is unclear given the way both provided evidence in the witness box.
On balance, even with the reservations expressed elsewhere in this judgment, I accept Ms Richardson’s relevant version because it is difficult to accept that Mr Cook did not at least have some general idea that he was seeking compensation to at least some degree of significance and that he had medical reports to support this. His evidence before the Court that he at first told Ms Richardson in response to her question as to whether he had any doctors reports that there was a “pile of papers” and: “it was a State Forrest physio – they do a functional assessment on you” was misleading in light of the existence of Dr Burgess’s report, the workers compensation claim and the large number of interrelated reports.
This apparent reticence on his part is consistent with his evidence that he was told not to talk about his workers compensation claim.
Again therefore, even if Mr Cook did not lie to Ms Richardson in his own mind about the state of his knees, on what was presented to her it was certainly reasonably open to take the view that he had.
Even a quick glance at the bundle of documents he provided would reveal an extraordinary amount of work done by health and occupational professionals about the assessment of Mr Cook’s injury and the impact on his capacity to perform various tasks.
Even if on Mr Cook’s evidence Ms Richardson had the documents overnight that situation does not change.
But ultimately none of this assists Mr Cook against the relevant test. At the relevant time Mr Cook had an active, albeit by that time amended, Workers Compensation claim in train. It asserted and had evidence in support that the injury to his knees and the continuing impact on his capacity was of some significant extent.
As opposed to this, even accepting Mr Cook’s evidence at its highest, he did not tell Mr Tucker at the interview of any difficulty that might affect the performance of his duties. The fact that he did not tell, nor was asked specifically about a workers compensation claim, is in my view irrelevant.
What is relevant is that he did say there was nothing to stop him from performing his duties. Objectively this may have been the truth. He did not lie. But from the Council’s perspective it was certainly open to perceive that he had lied, not about the workers compensation claim per se, but the inconsistent claims made in it and in the supporting evidence as to the extent of his injury etc.
For the purposes of the current case it is no explanation to say that Mr Cook’s solicitors were trying to obtain the best outcome for him and the injuries in the medical report were therefore presented in the worst possible light.
The “Not Asked Question”
In submissions the applicant sought to emphasise what was described as the “not asked question”. That is that at the employment interview Mr Cook was not asked whether he had any disability or even whether he had any workers compensation claim in fact. (The applicant notes that if such a question had been asked it may have assisted his case in another way.)
Nonetheless the attack is that he was not asked about disability of workers compensation. But was asked about his perception of his fitness for the position as advertised and for which he had applied.
The argument is that, in light of the question asked, Mr Cook was not obliged to provide information regarding his relevant background. Nor was there any obligation at common law to do so. (Bell v Lever Brothers Limited [1931] UKHL 2; [1932] AC 161 (“Bell”) and Gill v Colonial Life [1912] VLR 146 at 148.)
Mr Cook therefore answered honestly that he knew of no reason why he could not perform the duties of the relevant position.
I should note I understand the applicant’s reference to there being no duty on the applicant to disclose, unasked, “his previous history” as being a direct reference to whether he had a disability or a workers compensation claim. (Neither of which was asked about at the employment interview.)
If in raising this submission (as emphasised in the applicants written further final submissions) this was an attempt to broaden the applicant’s attack to assert some criticism of the Council for making some enquiry of the applicant about “personal matters”, then as Mr Ginters subsequently submitted, it is inappropriate in the circumstances for this Court to entertain any such attack.
The leave that was granted at the conclusion of the last day of the hearing was for further written submissions on issues that had already been raised before the Court and from which the applicant might benefit from further explanation. It was not to raise at that late stage new arguments. I can only agree with Mr Ginters that if by the further written submissions the applicant sought to raise some new line of attack so late in the proceedings, then not only is it prejudicial to the respondent Council but in my view offends, with respect, the very clear direction given by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as to the proper conduct of proceedings before the Court.
I would not offend the very clear direction that once parties have been given the opportunity to properly put their case it does not serve the proper administration of justice to allow new lines of enquiry to be put at such a late stage, when the opportunity was there to be put at the more appropriate time, particularly if this was done merely for some unknown strategic reason as to the conduct of the applicant’s case.
That is reason enough not to draw the inference as invited by the applicant’s submissions that the applicant was not asked the question at the employment interview as to whether he had been involved in any litigation concerning disabilities because this would have raised the issue of discrimination on the basis of disability.
This tortuous submission should also be strongly rejected for another reason. There is no evidence before the Court on which to base such an inference.
There is no evidence that Mr Tucker knew of any workers compensation claim or disability at the time of the interview. With respect I can only see this again as some late attempt to ascribe some “sinister” motive on what it is said Mr Tucker did not ask.
On the contrary Mr Tucker’s unchallenged evidence is that all the relevant candidates were treated and asked questions in the same way. The “not asked question” was not asked because what Mr Tucker was clearly concerned with, on his evidence, was whether Mr Cook was able to perform the duties of the position and to verify this with a subsequent medical examination.
Given that the applicant’s written submissions assert that, on Mr Tucker’s evidence, the selection process (which in context includes the interview) was conducted without criticism, then the applicant has answered his own attempted late attack in this regard.
The Events of 16 and 17 March – Part Two
This brings us back to the events of 16 of March (early 17 March on Mr Cook’s evidence) as to when Ms Richardson saw the bundle of relevant documents, and far more importantly what she drew from them.
On those parts of Ms Richardson evidence that remained unchallenged under cross-examination, what the documents revealed (and whether glanced at immediately or overnight) was that the hitherto understood position regarding Mr Cook’s capacity to perform the duties required of him was brought into contrast with the vast amount of material that made it open to her to understand the contrary position.
Even if on more mature reflection or proper consideration over some reasonable time would have elicited some more favourable view of Mr Cook’s relevant conduct is not the point in these proceedings.
Even if on any “objective” basis it could be said that Mr Cook did not lie and even if some proper process should have been implemented to more comprehensively or more “properly” answer that question should have been initiated, does not assist Mr Cook in light of the relevant test in these proceedings.
I certainly agree with Ms Reid that despite her protestations in her evidence Ms Richardson lost no time in running to Mr Robbins to call a meeting. The initial purpose of the meeting is subject to varying evidence.
Ms Richardson’s evidence is that after she reported her concerns about Mr Cook’s “personal safety” to Mr Robbins she was asked to prepare a written report. This is at “Annexure C” to her affidavit. The report is dated “Monday 17th March 2009”. The 17th of March in that year was a Tuesday.
Nonetheless, the sequence appears to be that she commenced the induction process with Mr Cook at about 7:30am Monday 16 March 2009. Unless Ms Richardson made further “mistakes” as to dates and timing it appears on her version that Mr Cook had the bundle of relevant documents in his car and that she looked through these documents on that day before taking him to the relevant worksite.
Mr Cook said he gave the relevant documents to Ms Richardson “the next day”, that is 17 March 2009. Ranged against him on this question of timing is the evidence of Ms Richardson. If that were all I would probably on balance be inclined to accept the evidence of Mr Cook given the respective way their evidence was given in Court.
But that is not all against Mr Cook’s version. Mr Tucker gave evidence he was informed by Mr Robbins “on or about 16 March 2009” that Mr Cook had a serious medical problem that had not been disclosed to Council.
I agree with Ms Reid as to the concerns about the manner in which Mr Robbins gave his evidence before the Court. It must be said I found his demeanour less than satisfactory. He presented as dismissive to questions put to him rather than, as compared to Mr Tucker, seeking to engage with the question put. He appeared somewhat resentful of having to explain what he thought was blatantly obvious: that Mr Cook had lied.
Yet inconsistencies in his own evidence were brushed aside with the unresponsive mantra that Mr Cook had lied on three occasions.
For example Mr Robbins’ evidence was that he had seen a medical report that had not been provided to his staff that showed that Mr Cook needed a knee replacement. His evidence in support of his conclusion (in part) that Mr Cook had lied was that this revealed an injury to his knees of greater extent than that first reported by Mr Cook.
It would be expected, given the claimed critical importance to him of whether Mr Cook had lied as to the extent of his knee injury, that Mr Robbins, who after all made the decision to terminate his employment, would have been able to recall with some clarity as to how this report came to light.
Yet his evidence in this regard was vague and unhelpful. At first he said in cross-examination that it was: “a report that we’d seen after the event”. I took this time as, in the circumstances of the almost immediate decision to terminate Mr Cook’s employment, meaning after his termination. He “thought” the report had been provided by Ms Richardson but could not recall when she had done so.
He insisted on having read such a report but was unable to say what report or when he had read it. At best his evidence was that he had read some report “at some stage” and “after the event”. He confirmed that he did not have such a report and than said he could not recall if he had read it after 16-17 March, or after Mr Cook’s employment was terminated.
In my view Ms Reid was correct to express concern at Mr Robbins’ intransigence in light of his patently inadequate evidence in this regard. Even in light of the above example he did not see any inconsistency in repeating the mantra that Mr Cook had lied, that is about the extent of the injury to his knees.
Consideration – Part Two
In my view Mr Cook fell “victim” (and I use the term advisedly) to essentially three things.
First, his lawyer’s choice of tactic in relation to his Workers Compensation claim and its coincidence in timing with his seeking employment with the Council. Whether it is appropriate or “how it is”, as Ms Reid suggested, what remained was that by the time he came to the interview with Mr Tucker and the induction with Ms Richardson Mr Cook may have truly believed he did not lie. But the inconsistency in his position of asserting he could perform the duties of the Council position even in light of his assertion to the Council’s doctor of some slight issue involving his knees was greatly at odds with what was put in his Workers Compensation documentation and as set out in the bundle of documents he gave to Ms Richardson.
It is no answer to the current question in this case to explain this by saying that in effect Workers Compensation claims operate as if haggling at a bazaar.
Even taking into account Mr Robbins’ unsatisfactory evidence, what came to him some time on 16 March 2009 was the inconsistency between the two positions set out above.
The second unfortunate matter for Mr Cook was the approach of Ms Richardson. While before the Court she attempted to present her actions in the best possible light, her actual conduct at the time was inconsistent with this.
Ms Richardson’s repeated insistence that was what uppermost in her mind was Mr Cook’s welfare was given lie to by the haste with which she ran to report to Mr Robbins simply on her own evidence of just having scanned a bundle of documents given to her by Mr Cook, whether on the 16th or 17th.
On whatever version, her evidence was that she immediately went to see Mr Robbins because she also felt she had a duty to the Council. It is in this sense that I understood Ms Reid’s submissions that a pause for some investigation and enquiry may have revealed a different picture about Mr Cook. The haste, without any, let alone proper enquiry, was unseemly for someone who professed to care so much for the welfare of Council employees. It would also have been in the Council’s interests to have presented if not as a caring employer, at least as one respectful of notions of fairness.
But her current purposes aside, this again does not assist Mr Cook given the relevant test before the Court. Denial of procedural fairness, or denial of what many would have said was proper “everyday” business conduct does not reveal the real reason for the termination of employment.
The third unfortunate element for Mr Cook was the reaction of Mr Robbins.
On Mr Tucker’s evidence Mr Robbins arranged for a meeting in his office to discuss the issue of Mr Cook’s failure to disclose a serious medical condition to Council. On Ms Richardson’s evidence Mr Robbins called the meeting on the same day that she reported in writing to him. The meeting was called for either at 9.30am or 10.00am Tuesday 17 March 2009. Mr Robbins’ diary reveals that he moved another appointment to accommodate this (see Annexure “A” to his affidavit).
Ms Richardson’s report to Mr Robbins was that there was a concern about the extent of his knee injury and that it had not been reported earlier (that is, the extent of the injury).
Mr Robbins’ evidence was that Ms Richardson came to see him (in context on Monday 16 March 2009) and that she had discovered that Mr Cook had failed to disclose to Council that he had: “… a quite serious injury to his knees”. The difference in the evidence between Ms Richardson and Mr Robbins is that Ms Richardson emphasised that her report was essentially about concern for Mr Cook’s safety, while Mr Robbins’ emphasised that she told him Mr Cook had lied about the extent of the injury.
On balance, therefore, the meeting was called to discuss what was done by Mr Cook. Mr Tucker said in cross-examination that he was told the meeting was called to discuss Mr Cook’s failure to adequately disclose the seriousness of his injury. That Mr Robbins was “very upset”. Mr Robbins says the meeting was called to discuss what Ms Richardson had told him about Mr Cook.
I accept the evidence of Mr Tucker and Mr Robbins over that of Ms Richardson as to the purpose of the meeting. That is, the “issue” was the question of Mr Cook’s dishonesty.
On the evidence there were five people at the meeting. Ms Amanda McGrath, described in Mr Robbins’ evidence as the Human Resources Manager, Ms Vanessa O’Neill, also in Human Resources, Mr Tucker, Ms Richardson and Mr Robbins.
While Ms McGrath did provide evidence to the Court by way of affidavit in which, amongst other things, she said she performed the: “… human resources function for the Council” in March 2009, surprisingly she was not called upon for cross-examination and in particular as to any role she played in Mr Cook’s termination of employment or her role at the relevant meeting.
Ms O’Neill gave no evidence.
Mr Tucker’s evidence by way of affidavit was that the meeting discussed whether to terminate Mr Cook’s employment on the basis of his dishonesty (see [7] of his affidavit).
Before the Court in cross-examination Mr Tucker’s evidence was that Mr Robbins was annoyed about what was perceived to be Mr Cook’s failure to adequately disclose the seriousness of his injury. He could not recollect that any decision was made at the meeting to terminate Mr Cook’s employment. The only decision that he could recall was that Mr Robbins was going to seek further advice and then make a decision.
On its face this contradicts the evidence of Mr Robbins and Ms Richardson as to whether the meeting made the decision to terminate his employment. Mr Tucker then conceded in cross-examination that he may have recalled that point incorrectly.
In my view of the evidence the contradiction is reconciled with how each of the three approached the meeting. Mr Tucker was there because he had been told to attend to discuss the perceived dishonesty by Mr Cook, which in part was said to arise out of what he told Mr Tucker at the employment interview.
It is clear on the evidence that Ms Richardson and Mr Robbins approached the meeting with an anticipation of termination of employment because of what they perceived to be Mr Cook’s dishonesty.
Ms Richardson, somewhat in contrast to her many protestations of care about Mr Cook, told the meeting that it “appeared” to her that Mr Cook would not have divulged the extent of his injury if she had not sought more information from him. Her evidence was that Mr Robbins and the others at the meeting were more concerned with his dishonesty than causing further injury to him. That of course being, on her protestation, her primary concern. A concern that somewhat inconsistently led to her evidence that “everyone” at the meeting agreed that Mr Cook’s dishonesty was so serious that it warranted his dismissal.
Despite her evidence before the Court as to her concern about his welfare, Ms Richardson did not satisfactorily explain how she went from a position of concern about his welfare going into the meeting (while conceding she had a duty to report his dishonesty) to agreeing on terminating his employment without even any discussion about any test as to the functionality of his knees being conducted. Ms Richardson seemed to have forgotten about this concern at the meeting.
As indeed it appears did the other two “human resources” managers at the meeting.
On the best view of the evidence, and on balance, Ms Richardson reported to Mr Robbins that Mr Cook had lied about the extent of his injury. Mr Robbins became upset at this. He called a meeting in a very short space of time. No attempt was made to ascertain the true extent of his injury.
In this I am of the view that Mr Robbins was the prime mover on hearing the report from Ms Richardson. Even with all the difficulties with the evidence, the applicant was not able to shake or dent the evidence of the relevant Council officers that the real basis for the termination of his employment was because of what they believed about his dishonesty and not his disability.
The diary note made by Mr Robbins supports this view:
“re Lee Cook. Outstanding w/comp claim not advised off [sic: of] in medical or interview terminate if OK with LGSA”
The diary note is consistent with the evidence given by all three parties cross-examined as to their participation at the meeting and the decision to terminate.
In my view Mr Tucker always saw the decision to terminate the employment as being one for Mr Robbins to make. The reference in the file note to: “… terminate if OK with LGSA” is consistent with Mr Tucker’s evidence that, whatever else may have been said at the meeting (or not said), the decision to terminate itself in a strict sense was made by Mr Robbins after the meeting and presumably after some reference to the “LGSA”.
There was nothing in cross-examination of Mr Robbins to explain the reference to “LGSA” or indeed what he did in this regard after the meeting.
During the cross-examination of Mr Fitzpatrick Ms Reid attempted to put to Mr Fitzpatrick a letter dated 30 April 2009 which she said was from the Local Government Shires Association (LGSA), which she submitted had assisted in representing the Council before the Industrial Commission in a matter involving the same parties.
This followed a line of questioning about whether Mr Fitzpatrick had contacted the LGSA about “this matter”.
It became clear that the attempt was to link proceedings before the Industrial Relations Commission of Australia involving Mr Cook and the Council with the current proceedings.
A number of things need to be said. First, as Mr Ginters correctly questioned, and Ms Reid was subsequently unable to establish, what was the relevance of these proceedings and the letter to the relevant test before the Court now.
Second, it appears the letter post-dated the events of February-March 2009. In this context Ms Reid was unable to persuade the Court that the letter was of assistance to the relevant question before the Court and the events of February and March 2009. Ultimately Ms Reid withdrew the question to Mr Fitzpatrick and the letter, whatever it was, was never tendered or put into evidence.
What remains a mystery is why there was no cross-examination of Mr Robbins about the reference to “LGSA” in his diary note and why the applicant chose not to pursue with him why there was the need to refer Mr Cook’s employment termination for the LGSA’s “OK”.
It is not for this Court to speculate that this may have led to some support for the applicant’s contention that whatever else, the Council (with reference to s.10 of the Act) was driven to terminate his employment because of some matter related to some industrial proceedings which may or may not have revealed some link to any workers compensation element.
Ultimately it is for the applicant to run his case as he sees fit. It is trite to say that this Court can only proceed on the evidence presented.
In context therefore of all the evidence as presented, the reference to the workers compensation claim in the file note should not be seen or read so much as a failure or otherwise by Mr Cook to mention his workers compensation claim (he was not in any event asked) but what was implicit on a comparative basis in having made such a claim and what was contained in it, and attendant on it, with what he told Mr Tucker and the Council’s doctor.
In light of all the evidence as it ultimately survived cross-examination Mr Cook’s employment was terminated because of what was perceived to be his failure to tell the Council of what was seen to be a serious injury to his knees and how this would impact on his capacity to do the job. The fact that the extent of his injury was exaggerated was not known to the Council officers at the relevant time.
Plainly a well functioning human resources section of the Council would and should have made proper enquiries. The failure to do so however does not, in the circumstances, detract or otherwise reveal an alternative or different reason for the termination.
It is clear that the decision to terminate was driven by Mr Robbins. What role the human resources manager played remains a mystery. I agree with Mr Ginters that the more probable, indeed in my view the obvious, explanation on the evidence was not about disability discrimination but perceived dishonesty. Mr Robbins was not shaken in cross-examination on this critical point (Hafez v Warilla Women’s Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995]] NSWEOT; Hunt v Rail Corporation of New South Wales [2007] NSWADT 152).
Mr Cook did rely on his evidence of his conversations with Mr Fitzpatrick, the General Manager of the Council, on Wednesday 18 March 2009, and subsequently, after his employment had been terminated. In his affidavit Mr Cook said that Mr Fitzpatrick told him that the reason for his being “sacked” was that the Council would otherwise have to take over his Workers Compensation claim from State Forrest, and that they were not prepared to do that. That the Council had legal advice to that effect. He repeated this in oral examination.
However on this matter Mr Cook’s evidence in cross-examination was not strong. He said he could not recall the exact words used in relation to whether the Council had legal advice. Ultimately, he agreed he had no recollection of the exact words used or that he was sacked because they would have to take over his workers compensation claim. No attempt was made to clarify this in re-examination.
Mr Fitzpatrick’s evidence was to deny any reference to Workers Compensation in his discussion with Mr Cook. In his affidavit Mr Fitzpatrick stated that the reason for the dismissal was as stated in the letter notifying of his termination.
Mr Fitzpatrick’s evidence was on this and on other matters somewhat confused and lacking in substance. I accept that this was due to his stated medical condition which was not challenged by the applicant. At best Mr Fitzpatrick conceded that it could be the case that the conversation with Mr Cook on the 18th of March (and the subsequent conversation some days later) went along the lines as suggested by Mr Cook, but he could not recall it.
However even if Mr Cook’s version of the conversation with Mr Fitzpatrick is accepted, it does not assist.
First, by the time of the conversation Mr Cook’s employment had been terminated.
Second, it is quite clear that despite being the General Manager, at least on this issue, Mr Fitzpatrick had little if any idea of what was going on.
Third, Mr Fitzpatrick’s short term memory loss cast a pall of unreliability over his evidence relating to these specific events. This came out in cross-examination.
Fourth, there was no evidence from any other source (and not conceded by Mr Fitzpatrick even on his unreliable evidence) that he had any involvement in the relevant meeting or the letter of termination of employment.
There was some cross-examination as to whether Mr Fitzpatrick was told about the Cook matter on the morning of the 17th or at a Council meeting later that evening. That is after the decision to terminate had been made and the relevant letter given to Mr Cook.
The problem for Mr Cook is that even if Mr Fitzpatrick was told about the issue in the morning (and the evidence at best is unclear and unreliable in this regard), he played no part in the decision making process. It is clear that in this issue at least Mr Robbins was the driving force and the actual decision maker. At its highest it can only be said that Mr Fitzpatrick, at whatever time he was told, played no real role other than that. That is, he was told what was done or about to be done.
In any event and on balance given the other clear evidence available the better view is that Mr Fitzpatrick was told after the event. The extent of Mr Robbins’ control of events can be seen in one part of Mr Fitzpatrick’s evidence which did sound credible in the sense of being clear. That is, extraordinarily, that he said he was reminded the day before the Court hearing by Mr Robbins, and he accepted, that he had not seen the letter of termination before it had been signed.
Given the time frame between the time of the meeting and Mr Tucker’s evidence as to when he was given the letter to deliver to Mr Cook, and the unchallenged evidence that Mr Fitzpatrick was absent from Council premises until a Council meeting in the evening (5:30pm – Annexure “A” to the Robbins affidavit), then I accept on balance that he did not see the letter until after it was given to Mr Cook.
In many ways this is a sad case with a sorry tale to say about how personnel matters are conducted at Oberon Council, at least in the case of Mr Cook.
There is on the evidence a General Manager suffering from short term memory loss such that he cannot recall or deal with simple questions put to him before the Court without resorting to being reminded by another person the day before the hearing.
There is an OH&S officer who, despite protestations to the contrary, felt that she had caught out Mr Cook in a “Great Lie” and could not wait to report on this without any enquiry, provisional investigation or even the simple courtesy of asking him for further information after just a quick scan of a bundle of relevant documents.
Human resources managers who appeared to take no active role in human resources management and even appeared to fail to pay lip service to the most basic matters of fairness, procedural or otherwise.
Ultimately Mr Robbins who, on the evidence at least in the circumstances of this case, while acting in the capacity of General Manager, was quick to let his anger at Mr Cook’s apparent lies override what not only would be considered common courtesy to an employee, let alone notions of fairness, but rushed in unseemly haste to terminate his employment.
Clearly he did not feel in the circumstances that Mr Fitzpatrick, as the General Manager, had anything to contribute. Even in circumstances where Mr Fitzpatrick, whose signature block appears on the letter of termination, was plainly contactable even though he was not physically in the Council offices. He was at least there in the evening. It was never satisfactorily explained before the Court, and it must be emphasised on the evidence presented, why the decision to terminate could not have awaited his return on that day or even the next day.
Ms Reid suggests that the haste, and the lack of fairness in the process, was because of, and gives rise to an inference that the answer was that the Council (at least Mr Robbins and those present at the meeting) acted in this fashion because, whatever else may have motivated them, they were at least motivated by the desire to be rid of Mr Cook as quickly as possible so as not to be burdened with an employee whom they perceived to have had a disability and to avoid taking over his Workers Compensation claim. That in this fashion they discriminated against Mr Cook.
However the evidence, and how the evidence was presented, does not support this claim, nor does it succeed as against the relevant test.
First the Workers Compensation matter. As set out above only evidence of substance to attract to this point is Mr Cook’s report of his conversation with Mr Fitzpatrick after his employment had been terminated. Under cross-examination when tested on this matter the applicant was unable to recollect that Mr Fitzpatrick actually said to him that he had to be “sacked” because they did not want to take over his Workers Compensation claim.
Mr Fitzpatrick denied saying this. But given his evidence of his medical condition and that he had to be reminded of at least one critical event by Mr Robbins his evidence is doubtful at best.
On balance however and in the absence of any other relevant evidence Mr Cook’s failure to recollect before the Court means that it cannot be accepted that this was said to him. Nor is there is any evidence that this was otherwise the case.
As to the haste and lack of proper process this may indeed have been of assistance to Mr Cook in different proceedings. But in the current case, in the absence of anything to the contrary, the haste and absence of proper procedure would itself be supportive of the view that Mr Cook’s employment was terminated immediately because the relevant group of officers at the meeting and in particular Mr Robbins felt that the breach of trust and honesty was such that Mr Cook could not retrieve his position and that delay was futile.
But what is ultimately persuasive is that on the evidence as presented it could not be said that Mr Cook’s employment was terminated for reason of his disability, perceived or otherwise.
There was Mr Tucker’s evidence. I found his evidence to be highly credible. This was also Ms Richardson’s evidence. Although not as impressive as Mr Tucker, on this issue she was not shaken on cross-examination on this point.
Finally, there is Mr Robbins. Whatever else can be said about his evidence and demeanour, the challenge put to him as to the sole reason for the termination of Mr Cook’s employment was not successful. I accept on the evidence that Mr Robbins believed that Mr Cook had misled the Council and that this was the reason for his dismissal. Even if it could have been objectively shown or explained subsequently that Mr Cook had not misled the Council, Mr Robbins’ belief at the critical time was not shaken or even challenged by evidence to the contrary.
What is left therefore on the totality of the evidence is that Mr Cook was perceived to have misled the Council. On the evidence this was the real reason for the decision to terminate Mr Cook’s employment. On the basis of the comparator test the best evidence available is that another person without Mr Cook’s disability or perceived disability, who had acted in the same fashion as Mr Cook, that is his or her conduct was such as to be perceived to have misled the Council, the Council would have acted to terminate such a persons employment.
In these circumstances the Council would have been entitled to have acted in this way (see Bell).
In this sense the Council did not discriminate against Mr Cook for reason of his disability or perceived disability. His claim of direct discrimination as pleaded therefore must fail. I will make an order dismissing his application and hear the parties as to costs.
Postscript
This is a case which, if representative of how business and in particular employee relations are conducted in Oberon Council, leaves that Council squarely at odds with any notion of fairness.
I do not presume, and it is highly improper and indeed irrelevant, to make any comment in the context of workplace relations or industrial relations. But I cannot help but comment on the treatment of Mr Cook on 16 and 17 March 2009. Surely the notion of a “fair go” must have some spark left somewhere in Oberon Council.
It is the case that I had great difficulty with Ms Reid’s submissions, which in context echoed actions taken on his behalf by Mr Cook’s solicitors (Higgins Lawyers), that exaggeration and indeed misrepresentation were acceptable and indeed part of the opening gambit to be played in the game of workers compensation claims. In short, aim high to subsequently achieve a “good” outcome.
Ultimately, however Mr Cook came to make the claims in his workers compensation matter as set out above those claims formed the probative basis for the Council officers to then form a view as to his honesty.
But the picture presented of Oberon Council in this case was not to my mind a flattering one to say the least. A general manager who does not appear to manage. Human resources experts who are either silent as to the human impact of employee decisions or ultimately neglect fair process. An OH&S/Risk Manager who claims she does not “panic easily” (see Ms Richardson’s affidavit at [10]) but then proceeds to do just that without pause to even properly look at the relevant documents provided to her by Mr Cook.
Ultimately, the Acting General Manager who allowed his emotions to dictate precipitous action over fair process and good management.(“I can recall Leigh [Mr Robbins] was very upset…” – Mr Tucker’s affidavit at [7]).
The evidence before the Court is that the impact of the Council officers’ actions on Mr Cook has been severe. Oberon is described as a “very small” community. I accept Mr Cook’s evidence that he had now been branded a “liar” and has no prospect of obtaining employment in Oberon because of that reason.
Mr Cook’s account of his life probably reflects that of a number of people living in regional or rural Australia. Hard physical toil, when work is available. A struggle to make ends meet given the vagaries of rural life (“the farmers could not afford to pay you”, “If it rained you could not work”, “drought”, seasonal availability of work etc – Mr Cook’s unchallenged evidence in cross-examination). Ultimately “we battled, put it that way. We’re not living on easy street, but we battle”.
In light of the conclusion I have reached above which in my view was the only proper conclusion available on the evidence, sadly that battle has now become that much harder for Mr Cook.
I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 19 August 2010
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