Daghlian v Australian Postal Corporation

[2003] FCA 759

FEDERAL COURT OF AUSTRALIA

Daghlian v Australian Postal Corporation [2003] FCA 759

ANTI-DISCRIMINATION LAW – employment originally in public service – physical disability of employee by reason of bodily malfunction or malformation – public service later corporatised all premises remodelled – chair policy banning stools introduced for counter employees – employee removed from employment at counter upon basis of chair policy introduced by corporatised body – placed on long service leave – upon expiration of long service leave employment purportedly terminated – whether enforcement of chair policy not reasonable in circumstances of disabled employee – whether disabled employee unable to carry out inherent requirements of particular employment – whether facility in form of chair/stool required by disabled employee and not required by employees without disability imposed unjustifiable hardship on employer.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(i) and 46PO(1) and (4)
Disability Discrimination Act 1992 (Cth) ss 3, 6, 11 and 15
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) s 21

Scott & Anor v Telstra Corporation Limited (1995) EOX 92-717
Scott and Bernadette Finney v The Hills Grammar School [1999] HREOC 14 (unreported, 20 July 1999)
The Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 61 ALD 619
Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor (2000) 180 ALR 635
X v The Commonwealth (1999) 200 CLR 177
Waters & Anor v Public Transport Corporation (1991) 173 CLR 349
Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303
Qantas Airways Ltd v Christie (1998) 193 CLR 280

SARAH DAGHLIAN v AUSTRALIAN POSTAL CORPORATION

N 1479 OF 2001

CONTI J
23 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1479 OF 2001

BETWEEN:	SARAH DAGHLIAN APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	23 JULY 2003
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1.The respondent has engaged in indirect disability discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth) by:

(i)the imposition of a term or condition of her employment that she not be seated at the retail counter at the Manly Post Office for intermittent rest or at all;

(ii)the subsequent discontinuance of her location of employment at the Manly Post Office, which she had held for about eleven years, and her deployment to Australia Post’s head office at Strawberry Hills for the period of six days ending 23 February 2001, with a view to her possible further deployment to another post shop in the Sydney metropolitan area in the event that an administrative position, and not a retail counter position, might become available for her;

(iii)the subsequent classification of the applicant onto sick leave from 27 February 2001, upon the terms and conditions of Australia Post’s letter of 23 February 2001; and

(iv)the subsequent absence of provision of any such employment position reasonably proximate to her location of residence in Manly.

THE COURT ORDERS THAT:

1.The respondent pay the applicant’s costs of the proceedings.

2.The proceedings be re-listed by the applicant for directions as to assessment of compensation.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1479 OF 2001

BETWEEN:	SARAH DAGHLIAN APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	CONTI J
DATE:	23 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The nature of the claim for relief

1. The applicant, formerly an employee of the Australian Postal Corporation (‘Australia Post’), commenced the subject proceedings, by application filed in this Court on 31 October 2001, for relief against unlawful disability discrimination by Australia Post in its capacity as her employer, pursuant to s 46PO of the Human Rights And Equal Opportunity Commission Act 1986 (as amended) (‘HREOC Act’). It is common ground that Australia Post is a ‘public authority of the Commonwealth’ within s 4 of the Disability Discrimination Act 1992 (Cth) (‘the DD Act’). The applicant claims that Australia Post has discriminated unlawfully against her as one of its employees, pursuant to its adoption of a workplace policy involving the banning of stools at the retail counters of its post offices, and its application of that policy to the employment circumstances of the applicant at the Manly Post Office. She seeks reinstatement of her former employment as a postal officer at the Manly Post Office with a suitable stool or chair provided to alleviate long periods of standing, reimbursement of lost income for the period from 27 February 2001, when her employment was terminated, to the date of the reinstatement of her employment, and reinstatement of annual leave and long service leave credits used by her since 27 February 2001. Additionally or alternatively, the applicant seeks orders in relation to economic loss, general damages arising from hurt and suffering, particularly in relation to her psychiatric condition, and an apology.

2. A substantial amount of oral and documentary evidence was tendered at the hearing, mainly by Australia Post. In order to gain sufficient understanding of the complex factual issues arising, it is necessary to provide a comprehensive review of the affidavit and viva voce evidence, and in a number of instances to extract the text or part of the text of the documentary material asserted to be of significance, particularly on the part of Australia Post, rearranged as far as practical in chronological sequence.

   The applicant’s origins and her early years of employment by Australia Post at Manly Post Office, including her 1991 employment injury

3. The applicant was born in Egypt in the year 1944. Her father originated from northern Greece and her mother from Ukraine. She was well educated, and spent her youthful years in France, and from the age of 23 years, she lived in Israel. In 1973 the applicant married her present husband, a person of Armenian extraction emanating from a Christian tradition. She gave birth to two children, the eldest of whom was a daughter she never actually saw. The applicant travelled to Paris to give birth to her second child (a son) in 1982. She worked as a make-up artist for films, the theatre and television in Israel and France for about 20 years, before coming to Australia with her husband and son in 1989. She and her husband have lived in the Manly district of Sydney since that time. The applicant’s husband is employed or else freelances as a rug salesman. The applicant’s son is presently studying in France, with financial assistance from the applicant and presumably also from her husband, the cost of which is said to have been her main reason for seeking to maintain her employment with Australia Post until her previously anticipated retirement on her 63^rd birthday (in 2007). The applicant commenced employment with Australia Post or the statutory precursor to Australia Post in July 1989 at the Manly Post Office, and in November 1989, she was appointed as a postal services officer at that Post Office. Her duties mainly involved the serving of members of the public at the retail counter, but also clerical duties at her desk located on her side of the counter, the latter taking up an hour or so of her daily working time. She ceased to attend work for Australia Post on 27 February 2001.

4. Apparently from the outset of her employment by Australia Post at the Manly Post Office, the applicant suffered from physical disabilities which inhibited her from standing for lengthy periods of time without interruption at the post office counter, being disabilities stemming from osteoarthritis of the lumbosacral spine, bilateral spurs of heels and varicose veins. As a consequence, her back was painful from time to time, but she said that she was able to bend or crouch down in a normal way ‘all the time’, though crouching tended to give her leg pain. What the applicant’s counter duties partly involved was the acceptance of parcels from, and delivery of parcels to, members of the public in attendance at the retail counter, and conveying the same from that counter, per medium of a trolley, to the mail room in the Manly Post Office for further processing. When not in use, the trolley was parked against the back wall of the counter. The procedure for acceptance of parcels for dispatch included the weighing thereof on scales. Her other duties at the counter, as distinct from her desk, included selling stamps and cashing bills of exchange. It is unclear whether the latter activities occurred more often than the former, or vice versa.

5. Throughout her employment at Manly Post Office until a short time before her controversial dismissal, the applicant used what has been described as an ‘antiquated’ four legged stool, upon which she would sit in the course of performing her functions at the service counter. Stools had been traditionally available to employees as and when they wanted to use the same. There were normally at least two other employees of Australia Post also engaged in serving members of the public at the counter attended by the applicant, though the applicant also spoke of six people working at the counter, including herself. A desk at which she performed her clerical duties was located behind the counter. However as will be later explained, in the context of the evolution of post offices in Australia from public service traditions to modern retail outlets more orientated to the attraction of custom from members of the public, the lay-out of the applicant’s workplace underwent significant change from about the year 1996, in the context of which the applicant’s claims as to discrimination ultimately arose.

6. An injury to the applicant’s back, which may have accelerated her degenerative back problems, occurred towards the end of 1991 whilst she was engaged at work at the Manly Post Office counter, and more specifically, in the course of ‘putting parcels away’. From that time it appears that the applicant started to experience ‘mild back pain… when lifting heavy parcels’ (see report below). A report was made on 7 November 1991 by Dr Coucher of the Department of Health, Housing and Community Services (who did not testify orally in the proceedings) in relation to the applicant in the following terms:

   ‘Current Complaint/Diagnosis:

   Degenerative changes. Lumbosacral spine.
   Lumbar back pain.

   HISTORY:

   47 year old woman who has worked for 2½ years as a Postal Officer. She noticed mild back pain over 6-8 weeks when lifting heavy parcels. On 21/10/1991 it became much worse and at lunch time went to see a doctor and went home. X-rays showed degenerative changes. Off for one week, then returned to work. By the end of the week, she had increased pain and visited Dr Galati who advised her not to lift for one month. She takes Digesics as needed. Pain is improving. She has had physiotherapy which was helpful.

   CLINICAL FINDINGS:

   Obese. Normal lumbar spine examination with normal reflexes. Full range of movement. She was mildly tender over L5/S1.

   RECOMMENDATION:

   1)        She is fit to work as a Postal Officer with some restrictions.

   °          Continuous standing up to one hour only.
              °          Lifting up to 5 kgs only.
              °          No repeated bending.

   °If possible, she should be able to vary her posture intermittently.

   These restrictions should remain for approximately one month with a graduated return to full duties with the supervision of a rehabilitation counsellor.

   2)She should be instructed re back care and safe lifting practices.

   3)When working in a sitting position, requires an ergonomic chair, correctly adjusted.

   4)She should follow a regular back exercise program.

   5)Chances of recurrence could be reduced if she were to follow a graduated supervised weight loss program.’

   Any such ‘ergonomic chair’ was however never provided for the applicant. Nor however does it appear that she followed a ‘graduated supervised weight loss program’.

7. An occupational health and safety workplace assessment of the applicant was conducted by Ms Karen Smith for Australia Post on 13 November 1991, and she reported as follows:

   ‘RESTRICTIONS:     Continuous standing up to one hour only
     Lifting up to 5kgs only
     No repeated bending

   If possible, she should be able to vary her posture intermittently

   WORK HISTORY:
   Sarah has been employed with Australia Post for approximately 2½ years as a Postal Services Officer at Manly. Previously Sarah performed part time work in a variety of fields.

   CURRENT DUTIES:
   Sarah’s duties include those involved in a Postal Services position. In addition she also occasionally performs word processing duties for the CPM.

   TASKS ASSESSED:

   Word Processing Duties
   Sarah may use the word processor for up to one hour, generally 2-3 times a week. She also performs a daily balance which takes about 15 minutes. These duties are performed in a seated position. Sarah states that she does not adjust the chairs correctly.

   Postal Service duties
   This duty includes serving customers over the counter. Sarah states that she predominantly stands to perform this duty. Stools are provided on the counter for staff to use while serving.

   RECOMMENDATIONS:

   1.When performing word processing duties or the balance (sic), it is important that Sarah adjust the chair to suit her individual needs. The correct chair adjustments and posture was demonstrated to Sarah and written information will also be supplied.

   2.Correct lifting techniques were also demonstrated and Sarah will have to make a conscious effort to apply these principles whenever she is required to lift an object.

   3.When working on the counter it is suggested that Sarah alternate between sitting and standing. To ensure that lumbar support is maintained it is also recommended that a counter chair be supplied for Sarah to use. The stools currently on the counter do not provide any lumbar support. Sarah will have to ensure that she also correctly adjusts the counter chair to suit her needs.

   4.When pushing in and pulling out the counter advance draw (sic), Sarah should stand directly behind the draw (sic) and use two hands. This ensures an even distribution of pressure across the back.

   5.It is important that Sarah continue to perform the stretching and strengthening exercises regularly throughout the day.’

   The importance of Ms Karen Smith’s recommendation that the applicant ‘alternate between sitting and standing’ may be observed. The further recommendation ‘… that a counter stool by (sic) supplied for Sarah to use’, because ‘… [t]he stools currently on the counter do not provide any lumber support’ was, as I have already indicated, never implemented by Australia Post. The applicant appears to have continued to use the same counter stool (illustrated in the photographs tendered in evidence) which lacked lumbar support, from the time of commencement of her employment as a postal counter worker, and thereafter throughout the remainder of her employment at the Manly Post Office, until she was directed in early 2001 to cease to use the stool in the controversial circumstances giving rise to the present litigation. According to her oral testimony, it was the applicant’s practice to sit on the stool when selling stamps or cashing bills for customers, but to stand when handling parcels.

8. The applicant said that it was no more than once or twice per day, and on some days never at all, that she undertook the task of handling the heaviest of the parcels accepted over the counter, namely those in the region of 16 kilograms, which usually contained books. Large parcels containing clothes were presumably more awkward than heavy. On those occasions when a parcel was too heavy, which for the applicant appears to have involved weights exceeding 7 kilograms, she was assisted by other members of the Post Office staff. She explained that customers would always and of their own accord place any heavy parcels brought into the post office onto the scales, which were located conveniently for that purpose at the centre of the customer counter. Thereafter it was the function of the staff on the counter to remove the parcels, once weighed, for processing. The applicant did not sit on the stool for that function. She further said that ‘the medical condition relating to my back and legs… prevented me from standing for extended periods’, and that ‘[t]he use of the stool alleviated pain in my legs, which became a problem for me shortly after I commenced’, but ‘did not interfere with my duties’. She further said that from about the end of 1991, she began to use her stool more often, ‘… as long periods standing aggravated both my leg and back condition’. The applicant claimed that whilst her back could be painful, she was able to bend and crouch down ‘normally all the time’.

   Workplace controversies arising in 1996

9. At a time in 1996 not particularised in the evidence, Australia Post undertook refurbishments at the Manly Post Office in conjunction with the introduction of Australia Post’s so-called new retail shop image, in the place of its traditional post office lay-out, involving the installation of an ‘island type counter’ in the middle of the customer service area, and another at the rear of that area. It was in that context by 1996 that Australia Post introduced a policy requiring the removal of all stools from the customer service areas of its post offices, including of course the Manly Post Office. The applicant made a request to the Area Postal Manager (Mr Arundel), an executive not stationed at the Manly Post Office, that she be exempted from conformity with the policy, to the extent of being permitted to retain and use her stool for use as the occasion arose. In support of that request, which was made about 2 months prior to the change of format being implemented, the applicant provided Mr Arundel with medical certificates from her general practitioner Dr Artinian of Manly. Australia Post thereupon referred her to a medical practitioner of its choice, who is asserted by the applicant in evidence to have confirmed her need to continue to use her stool.

10. Australia Post thereupon arranged for a workplace assessment of the applicant by Ms Newton, an occupational therapist. She recorded on 6 May 1996 that ‘Mrs Daghlin (sic) is currently completing her full normal duties using a stool behind the counter’, those duties being specified as serving customers at the counter, involving opening and closing a counter drawer, weighing parcels received at the counter and retrieving others from the parcel room, and removing the money tray and stamp books from the safe, which ‘may require opening heavy safe doors’. Ms Newton recommended as follows:

    ‘1.Ms Daghlin (sic) should be referred to Rehabilitation for ongoing intervention regarding permanent restrictions.

    2.In the short term, Ms Daghlin (sic) should be allocated a work area not in a thoroughfare so she is able to continue to use her stool.

    3.When completing her duties on the counter, Ms Daghlin (sic) should only sit on the stool for short periods in between serving customers. She should avoid sitting on her stool and reaching for items or reaching to serve customers. When completing tasks, Ms Daghlin should stand, serve the customer, then if necessary return to sitting.

    4.If Ms Daghlin (sic) has any difficulty completing her work, she should immediately notify her supervisor and/or Rehabilitation Counsellor.’

    The reference above to ‘thoroughfare’ may have been to the retail area surrounding the ‘island counter’. Implicitly, Ms Newton acknowledged the need for the applicant to be provided with a seating facility for use on the occasions which Ms Newton described.

1. Australia Post caused the applicant to be additionally assessed by Dr Joan Chen, a consultant physician in occupational medicine. The conclusions of her report of 2 September 1996 in relation to the applicant were as follows:

   ‘In view of her history of bilateral heel pain (currently not symptomatic) and bilateral varicose veins, it is recommended that Mrs Daghlian avoids prolonged standing. It is appropriate for her to interrupt periods of standing with short periods of sitting on an appropriate stool.

   I have read the report submitted by Ms Elizabeth Newton following a workplace assessment on 6 May 1996. I concur with Ms Newton’s recommendations that Ms Daghlian should sit on a stool for short periods in between serving customers. I understand your concerns that sitting would reduce the individual’s reach, particularly when serving customers or reaching for items. Therefore, I agree with Ms Newton that she should avoid sitting on her stool whilst reaching for items or serving customers.

   Whilst I would prefer not to be dogmatic or absolute regarding standing or sitting spells, and consider it preferable to leave it up to individual discretion, as a rough guideline, standing periods of between half to one hour may be interrupted by short periods (a few minutes) of sitting.

   I consider that she could continue to perform her full Postal Services Officer duties including overtime work, within these restrictions.’

2. The applicant said that she continued from and after the 1996 renovations, and in the context thereof, to perform all of her employment duties effectively, without interference with the day to day operations of Australia Post at the Manly Post Office. She further testified that ‘I still sat for some of the day only’, and also that ‘I stood at times and moved into the retail space of the shop to assist customers as and when required’. No issue was raised by Australia Post as to her effectiveness or competence in the carrying out of her duties of employment.

3. The respondent ultimately elected on the third and final day of taking evidence not to read an affidavit which had been filed by the abovementioned Area Postal Manager for Australia Post, Mr Arundel, who apparently exercised a supervisory role in relation to the Manly Post Office. Thus there was no evidence before me that the applicant was directed in 1996, whether by Mr Arundel or otherwise, that she should not use her stool at all, or any other stool for that matter.

4. The applicant accepted however that Mr Arundel did not at any stage inform her that she could continue to use her stool, that being declared by counsel for Australia Post as the reason for not tendering Mr Arundel’s affidavit testimony. As will shortly appear, there was in any event no settled or definitive policy within Australia Post as to the use of stools by counter staff, at the time of Mr Arundel’s conversation with the applicant in March 1996. In that regard, on 21 March 1996, Mr Arundel sent an internal memorandum to a senior officer of Australia Post (Ms Brackenrig), which read as follows:

   ‘I had an IP meeting at Manly this morning about the retrofit to a Post Shop. One of the staff Sarah Daghlian PSO Manly raised with me the question of using a stool to sit on whilst working at the counter which she now does. I advised Sarah that when Manly goes to a Post Shop she would not be permitted to sit on a chair whilst performing counter duties.

   She claims that there is a file at the Regional office which covers the restrictions under which she is employed. However, the Post Manager does not have any such information on hand at the office and he indicated that she will not lift any parcel heavier than 5 kgs.

   Are you aware of any restrictions relating to this persons employment? Are we on firm ground in insisting that there is no use of stools under Post Shop conditions?’

   Australia Post produced no evidence of a response by Ms Brackenrig to that memorandum. The Australia Post executive Mr Lowe, whose evidence will later be summarised, stated in his affidavit merely that ‘I believe Mr Arundel did not approve the use of the stool’, but he gave no grounds for that belief, and accordingly I should not place any reliance on that statement of belief proffered by Mr Lowe, particularly given that by not reading Mr Arundel’s affidavit, Mr Arundel was not exposed to cross-examination.

5. The applicant continued from and after 1996 to use the contentious stool, without any contrary direction from the local Australia Post management at Manly, nor from the head or regional office management of Australia Post, until the controversial events in early 2001 giving rise directly to the present proceedings. That finding on my part is implicitly supported partly by the following documentary evidence:

   (i)the recommendations of the 1996 reports of Ms Newton and Dr Chen above extracted, which do not appear to have been explicitly refuted by internal Australia Post executives;

   (ii)an extract from the Occupational Health and Safety Meeting at Manly Post Office of 19 May 1997 as follows:

   ‘5.Sara Daghlian, use of stool on counter. Sara needs to use the stool all the time due to pain. Stipulations from AGMO suggest use is for the times between customers only. This needs to be ratified. Sara has presented a note from her doctor which states she needs to use the stool ‘as required’. To be referred by Postal Manager to Helen Brackenrig O.H.&S. officer North and East Metro (Retail) Region.

   6.The stool which Sara Daghlian uses has no back support. If, as point 5 suggests, use of a stool is to be continuous we also need to provide something more suitable for that arrangement. What is envisaged is a stool with back support. This matter will also be referred as an adjunct to point 5.’

   No stool with ‘back support’ was ever subsequently provided by Australia Post to the applicant.

   (iii)The report of the Postal Manager of Manly Post Office (Mr McNamara), also of 19 May 1997, to the North and East (Metro) Retail Region of Australia Post, stating as follows under the heading ‘Use of Counter Stool – Sara Daghlian’:

   ‘Please refer to minutes of O.H.&S. Committee meeting on 19 May 1997 attached. Referred for your information and advice please.

   Point 5, relates to conflict with stipulation by AGMO that Sara uses stool in limited capacity. “Between customers” at this office realistically relates to very little time, Mrs Daghlian is almost constantly serving customers. A copy of a Medical Certificate from her own doctor suggests use of stool is ‘as required’. The use of the stool needs to be reassessed, please advise if you wish to refer the matter on to the AGMO.

   Point 6, is related to the above. If as I suspect we find that Mrs Daghlian needs to use the stool continuously we need to assess the adequacy of the stool currently used. The stool used would be described as, round seat with four ‘fixed’ (no movement) metal legs. My own unqualified opinion is that the stool should be of a design incorporating back support and some flexibility in back/support to aid in movement required to serve customers.

   Should you require any further information please contact me on the telephone number above.’

   That request or recommendation for what may be described as a more structured stool for the benefit of the applicant was never adopted by Australia Post executives, much less implemented, yet there is no evidence of any rejection of Mr McNamara’s opinion and suggestion having been communicated by Australia Post executives to him.

   (iv)The report of Ms Brackenrig of 29 May 1997 of Australia Post to Mr McNamara of Manly Post Office, made in the light of the reports of Ms Newton and Dr Chen earlier extracted herein, reading follows:

   ‘Sara was examined in September 1996, by Dr J Chen, Consultant in Occupational Medicine.

   Her findings were, that Sara had a history of bilateral heel pain and bilateral varicose veins, and that wearing of compression stockings would probably assist in increasing her standing tolerance. Dr Chen also recommended that she avoids prolonged standing. It is appropriate for her to interrupt periods of standing with short periods of sitting on an appropriate stool.

   Dr Chen concurred with Ms Newton’s recommendation on the Workplace Assessment of May 1996, that Sara can sit on the stool for short periods in between serving customers. She also mentioned that she was not to sit on the stool whilst reaching for items or serving customers.

   As previously discussed, Sara may sit on a stool, but when she serves a customers or needs to reach for items across the counter or below the counter she must stand up, otherwise she could be putting a lot of other stresses on her body. Sara should also take action to assist her condition, that is she should purchase the recommended compression stocking of a medical outlet, and wear them.’

   Her report did not assist Australia Post, containing as it did implicit concurrence with the applicant’s need for recourse to a ‘stool’ in the limited circumstances therein set out. I should add for completeness that Ms Newton, Dr Chen, Mr McNamara and Ms Brackenrig, did not testify in the proceedings.

   Further structural change to lay-out of Manly Post Office (circa 1998-1999)

6. About two or three years following the 1996 structural alterations to Manly Post Office, Australia Post again redesigned and refurbished the lay-out of the Manly Post Office, and the ‘island’ retail counter was removed and a new counter installed. Counsel for the applicant described the latter as a ‘traditional counter’. The applicant was designated a work area at one end of the counter, with the consequence, so counsel for the applicant contended, that no other employee needed to pass behind the applicant’s workstation. The applicant testified that she was allowed to continue to use her stool during those years of further structural change, her stool (being apparently still identical to that which she had been using at least since 1991) being placed ‘away from the counter’, so as to minimise any ‘perceived trip hazard’, to adopt the applicant’s descriptions. There is no evidence of any offer having been made by Australia Post to the applicant to replace that apparently antiquated form of seating. No other employee, the applicant asserted, ever needed to walk behind her workstation, and none of her fellow employees, she further asserted, ever tripped on her stool on any occasion. She said that she continued to stand for part of her working hours, and to ‘move into the retail space when necessary’, doubtless to serve members of the public at the retail counter. Moreover the structural change did not carry in its wake the removal of the trolleys used by the counter staff for the transportation of parcels to and from the mailroom located behind the space where the counter staff, including the applicant, were stationed, notwithstanding that the wheels on the trolleys could constitute a trip hazard, a matter which was common ground in the evidence of the parties to the proceedings.

   Australia Post executive’s deliberations upon and formulation in 1999 of a policy on the provision of chairs and stools at retail counters

7. Prior to 12 May 1999, Australia Post’s Human Resources Department in New South Wales had set about the consideration or formulation of policy on the utilisation of ‘chairs/perch stools’ at its retail counters for medically restricted staff. On that day, the following conclusions were reached by officers of the Department (as recorded by the Group Manager Human Resources):

   ‘1.Staff will not be permitted to perform Retail counter duties from a seated position. This advice will be clarified in the revised National Policy on the provision of chairs for employees performing counter duties in retail outlets.

   2.Under certain circumstances, outlined below, a chair or stool – positioned away from the counter – may be provided for medically restricted staff on which to intermittently sit for rest purposes while not serving at the counter. Three criteria must be satisfied for the provision of the chair:

   ·That there is sufficient clear space for provision of the chair without encroachment of working space or staff access/egress;

   ·That there is sufficient medical evidence supporting the need for seated rest by the affected staff member;

   ·That the facility is able operationally to accommodate the chair and other issues associated with the requirement of the affected staff member to intermittently sit and rest.’

   It was foreshadowed that those factors would be incorporated into a revised national policy for the provision of chairs to employees performing counter duties in retail outlets, which was to be distributed for comment in draft form prior to general release.

8. In the result, Australia Post’s Group Manager (Mr S Parkes) wrote to Australia Post’s General Manager on 4 June 1999 as follows:

   ‘PROVISION OF CHAIRS/STOOLS AT RETAIL COUNTERS

   I refer to my letter of 31 March 1999 advising of Australia Post’s policy on the provision of stools/chairs for medically restricted staff performing counter duties in retail outlets.

   Given concerns raised about the possible misinterpretation of the policy and a resultant abrogation of our duty of care, it has been decided to re-issue the policy so as to remove any possible misunderstanding. The policy statement is at Attachment 1 and supersedes that issued on 31 March 1999.

   The policy incorporates the outcomes of a recently conducted recent OHS risk assessment of the suitability of medically restricted staff using a sit/stand stool whilst performing counter duties at Australia Post retail outlets. The outcome of the evaluation, which was undertaken by Mr David Nelson, Corporate Ergonomist, was that the application of chairs/stools for counter based work be disallowed for OHS reasons. His conclusion was that the cupboard design under the counter top and the absence of a knee-well in the current design of the counter/work station creates restrained working postures while sitting and working at the counter which can become further constrained by the limited working spaces. Such postures are known to be the cause of long-term degeneration of the musculo-skeletal system.’

9. The policy statement referred to and attached to Mr Parkes’ report was in the following terms (the underlining appearing was apparently present in the original text):

   ‘Australia Post Policy on the Provision of Stools/Chairs
   in Retail Outlets

   Australia Post’s position regarding the provision of stools/chairs in retail outlets is that the use of chairs/stools is not permitted whilst performing any counter duties. The reason for this is that the design of the retail counter does not facilitate the use of seated operations and the use of stools/chairs in these circumstances introduces O.H.&S hazards for staff.

   However, an approved chair/stool positioned away from the counter may be provided for medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken led by an OHS Adviser.

   The following three criteria must be satisfied as part of that risk assessment, namely that there is:

   1.Sufficient clear space for provision of the chair/stool away from the counter without encroachment of working space or staff access/egress. Generally it is considered that a “free space” of 1 metre x 1 metre will be required to accommodate a chair/stool. A clear space of approximately 1 metre is also required behind the counter for standing work and means-of-access at all times. Therefore, an overall minimum clear space of 1 metre x 2 metres (width x depth) is necessary for accommodation of a chair;

   2.Medical evidence supporting the need for intermittent seated rest by the affected staff member away from the counter. The medical evidence should specify the time-limits, the employee may stand and work continuously, and the anticipated duration of these restrictions as it is not envisaged that the provision of a stool or chair would be an indefinite arrangement; and

   3.The facility is able operationally to accommodate the chair and other issues associated with the requirement of the affected staff member to intermittently sit and rest. This will involve an examination of the system of retail sales work that prevails in that office so as to establish the effects of that change. The examination must establish that the chair/stool does not represent a hazard by impeding other staff movements or workflows.’

   Australia Post did not subsequently provide for the applicant ‘an approved chair/stool positioned away from the counter’, notwithstanding that she doubtless qualified as a member of staff who was ‘medically restricted’. The difficulty which nevertheless confronted the circumstances of the applicant, in the light of the text of the policy released on 4 June 1999, was whether her workstation created by the 1999 building alterations to the Manly Post Office (either independently of or by way of modification to the 1996 alterations), satisfied the first and third criteria above extracted as to sufficiency of ‘clear space’ for the provision of an ‘approved chair/stool’, and if not, whether Australia Post was prevented for structural reasons from providing any such ‘clear space’ behind the counter where she worked, such that ‘… it did not represent a hazard by impeding other staff movements or workflows’.

10. It is unclear why two months later, the applicant obtained from her general practitioner Dr Artinian two further medical certificates on standard Australia Post forms, presumably submitted to Australia Post, containing the following information:

    ‘…she will need to use a chair when required due to pain’ (3 May 1998).

    ‘…she will need a chair to rest her back and feet from time to time permanently’ (24 July 1999).’

    The status quo of the applicant’s work practices appears to have prevailed in any event for more than a year after the formulation of the new policy.

11. In about May 2000, the applicant testified, initially by her first affidavit of 4 October 2001, that one of the managers of Australia Post’s Human Resources department, whose name she could not then remember, said to her at the Manly Post Office inter alia: ‘[y]our pain is normal because of old age. When are you thinking of retiring? How long are you going to continue working for Australia Post’? or words to that effect. She responded ‘as long as I can’, and ‘at least until 65’. In her second affidavit sworn on 28 June 2002, she identified that person to be Mr Skeen, the Human Resources Manager (Retail North) of Australia Post, who had made an affidavit in the meantime on 23 May 2002 as to what he saw at Manly Post Office on an occasion approximating in time to that recalled by the applicant. He made no contemporaneous note in relation to that visit, nor did he appear soon afterwards to evince any official reaction to the applicant’s working practices. Mr Skeen in his affidavit said that he did not know whether he was the person to whom the applicant had referred in her first affidavit, though I would infer that to have been the case, since he did attend Manly Post Office in May 2000 and noticed that the applicant was sitting on a stool at the end of the counter serving customers, which was located in such a way that no other staff could access the area, so he contended, without the risk of tripping on the stool. He denied the applicant’s account of the conversation between them the subject of her first affidavit, but said that he asked her ‘How long do you propose to continue working for Australia Post?’ to which she replied, ‘I would like to stick around as long as I can and at least to 65’. Mr Skeen did not make a note, contemporaneous or otherwise, of the conversation.

12. In her affidavit in reply, the applicant re-affirmed her foregoing version of the conversation, and conceded that she may have said ‘at least until 65’. In his oral evidence in chief, Mr Skeen said that his observations made of the applicant, when she was at the counter occurred in the absence of any conversation between them, and that the conversation occurred subsequently in the lunchroom. In her oral evidence, the applicant refreshed her memory from a contemporaneous note which she had made on the back of an envelope when she went home (the envelope was marked for identification but not tendered by either party in evidence), and claimed that Mr Skeen said to her that she should retire, and asked her ‘how long do you want to work, if you cannot stand up, it means that you cannot work in a retail shop like David Jones and Grace Bros, so you need to retire’. In his oral evidence, Mr Skeen said that he went to Manly specifically to investigate the applicant’s circumstances, with the objective that ‘[I]f it was reasonable to make an adjustment to the workplace, I would organise that to happen’, and further that ‘[i]f it was impossible to undertake… particular change, then there would be other consequences which I would manage on their merits’. Under cross-examination, Mr Skeen denied that he said to the applicant on that occasion words to the effect that she should retire because she was 56 years of age, but he did agree in the course of cross-examination that ‘… what we were trying to do was to turn Australia Post away from a public service over the counter type of organisation into this more retail oriented organisation not unlike Coles Myer…’.

1. Mr Skeen further testified in his affidavit that what he saw on the above occasion was the applicant sitting on ‘a very very old stool’, which was ‘ergonomically inappropriate’, and which ‘would put us in breach of the Occupation Health and Safety Act’, and further that Australia Post’s policy was that post office staff, as distinct from administrative staff, were not to be seated. Consequently he considered himself obliged to find alterative employment options for the applicant in an administrative role, and not to leave the applicant in her ‘particular environment’ on the post office counter. He said further that ‘… in any post office environment including Manly, it was not possible to, for example, cut a hole in the counter so that she could be placed closer to the counter on a seat’, irrespective of Mr Nelson’s so-called evaluation referred to in [18] above and in any event, ‘[t]hat was still inappropriate from a safety perspective’, for reasons he did not appear to explain. In any event, Mr Skeen claimed that his 15 years of experience with post office counters, particularly where there is a small area of space for counter staff, was that ‘… chairs… are definitely a hazard behind counters’, and further that he had seen many instances of tripping because of the restricted space available due to the presence of chairs and counter trolleys.

2. The following observations may be made in relation to Mr Skeen’s affidavit testimony:

   (i)He did not take steps to obtain for the applicant an ergonomically appropriate stool or chair, despite what he recorded in his observations made in May 2000;

   (ii)He gave no precise reasons for his view that irrespective of the availability of any ‘ergonomically designed seat’, there was a risk of aggravation of the applicant’s so-called ‘significant degenerative back condition’, in circumstances which would have placed Australia Post in breach of whatever aspect of the Occupational Health and Safety legislation he had in mind; in that regard there does not appear, from the abundance of medical reports relating to the applicant provided after 1991, that her disabilities and discomforts had since deteriorated, in any event to a material or significant extent;

   (iii)He gave no detailed reasons or explanations for his thesis as to the impossibility, whether structural or financial, of implementing appropriate alterations to the counter; nor is it apparent that he sought any expert building or architectural advice on the subject; and

   (iv)He gave no apparent weight to the circumstance, which the applicant had postulated, and which it is likely his investigations would have revealed, of the absence of any evidence to the effect that the applicant’s working habits the subject of his criticism had not been the cause of, nor had contributed to, any tripping on or against her stool during her preceding 10 or so years of service with Australia Post.

   In relation to that absence of evidence of tripping, evidence was given on behalf of Australia Post by Mr Adam Lowe (whose evidence is later referred to in more detail) that not only was he unaware of any record of tripping on the applicant’s stool, nor indeed generally at Manly Post Office, during the period of his tenure commencing in May 1996, but that Australia Post kept ‘very good records about accidents’, in relation to which particular forms were required to be filled out and lodged.

3. On or about 24 May 2000, Dr Artinian completed yet another Australia Post standard form of so-called ‘Fitness For Work Certificate’ in relation to the applicant, containing the following:

   ‘Full duties & osteoarthritis lower back & bilateral spur of heels & will need a chair & back support on & off.’

   The expression ‘on & off’ did not of course imply any need for the applicant to be permanently seated at work. The report was provided to Australia Post. Subsequently on or about 20 June 2000, Dr Kandine, a medical practitioner specialising in rheumatology, provided a medical certificate for the information of the Manly Post Office administration, in the following terms:

   ‘This is to certify that I examined Sarah Daghlian on 20/6/2000 - in my opinion she is suffering from spondylitis - she will need to have opportunity to sit on chair to rest back & legs permanently (while serving on counter) and have a course of hydrotherapy at Manly Hospital (about 12 weeks).’

   That report was at worst equivocal. The interpretation which seems to me to be the more likely, consistently with Dr Artinian’s report, is that ‘permanently’ was intended to qualify ‘opportunity’. The expression ‘while serving on the counter’ would appear to refer to the times when the applicant was engaged in counter duties, in contrast to those less frequent duties such as word processing (see [7] above). Neither Dr Artinian nor Dr Kandine testified orally or by affidavit in the proceedings. As appears in [46] below, Australia Post asserted that it was on the basis of those reports that the decision was made to relegate the applicant to sick leave, albeit not until seven or eight months later.

4. On 29 May 2000, a comprehensive workplace assessment was carried out by Ms Beazley, an Australia Post occupational health and safety advisor with post-graduate qualifications in ergonomics, on the instructions of the abovementioned Mr Adam Lowe, an executive of Australia Post who was subordinate in the Australia Post administration to Mr Skeen. In the words of the applicant, ‘Ms Beazley recommended that my stool be removed’. Ms Beazley testified both by affidavit and orally in the proceedings. I infer that she had been provided with the so-called ‘Postal Services Officer – Statement of Inherent Requirements’ bearing date 3 May 2000, and was said to have been endorsed by the ‘State Manager Retail NSW and ACT’, for the purposes of her report.

5. The material contents of Ms Beazley’s assessment of the applicant are set out below:

   ‘NORMAL DUTIES:   Ms Daghlian reported that her primary tasks as a Postal Service Officer are counter duties.

   Counter work:    This duty involves standing to serve customers at one of several service counters, each with a work surface located at waist height. Various transactions are carried out at the counter including retail and stamp purchases, various bill payments and other banking services using an EPOS (Electronic Point of Sale) register. The EPOS system consists of a standard “QWERTY” keyboard located on the bench at waist height, and a 9-inch VDU (Visual Display Unit) situated at head height. A counter drawer set in the top of the counter is frequently opened and closed so stamps/money can be collected and removed from the drawer and the cash advance maintained. Keyboard activity at the counter is interspersed with other aspects of the duty, including assisting customers to select products.

   Stock presentation/Re-stocking:     This duty involves maintaining a high standard of presentation of retail stock on shelves and involves straightening articles (ie stationary etc) on shelves and dusting. Shelves range from the floor up to head height.

   Parcels:   Parcels are received from customers and placed on the counter weigh scales, and parcels are retrieved from the parcel room, or a cupboard directly behind the main counter. Parcels vary in weight, with the average at approximately 3 kg.

   Removal of advance from safe:    The money tray and stamp books (wgt. approx 5 kg) are removed and carried from the safe to the counter. This may require opening heavy safe doors and squatting down to remove the money tray if kept on the bottom level.

   WORK RESTRICTIONS:     Medical certificate provided by Dr J Artinian 24.7.99 (this has already been earlier reproduced).

   Needs a chair to rest her back and feet from time to time.

   WORKING HOURS:   Normal Hours.

   ADDITIONAL INFORMATION GATHERED DURING WORKPLACE ASSESSMENT

   1.Ms Daghlian was observed sitting on a non-swivelling circular four legged stool. The stool was positioned in the far end of one of two counter areas out of any thoroughfare. The stool was considered to be ‘quite heavy’ when attempted to move with one hand. Whilst sitting on the stool Ms Daghlian’s feet were positioned onto a small letter tray that was turning onto it’s side against the under counter shelving. The open aspect of the letter tray was orientated towards Ms Daghlian.

   2.Whilst sitting on the stool Ms Daghlian demonstrated a perched posture on the front half of the stool. Her knees were much lower than her hips and her waistline level approximated the top edge of the stamp drawer handle.

   Sitting in the position as described in #1 and #2 raises several unacceptable risks, including:

   ·Potential for the letter tray collapsing under Ms Daghlian’s feet causing  her to fall forward;

   ·Tripping by catching a foot/feet in the letter tray or on a leg of the stool;

   ·Repetitive twisting and bending of the trunk when accessing the keyboard, money drawer, receipt printer, and customers;

   ·sustained elevation of arms to perform counter tasks;

   ·Extended reach to perform counter tasks;

   ·Static posturing of legs and lower back.

   In addition, several risks are associated with standing to perform counter duties with the stool and letter tray positioned at the counter.

   ·Extended reach/forward bending to perform counter duties as the tray encroaches into the feet space approximately 160 mm;

   ·Tripping by catching a foot/feet in the letter tray or on a leg of the stool;

   ·Awkward posturing to access keyboard, money drawer, cheque machine and receipt printer due to position of stool.

   The Australia Post Policy on the Provision of Stools/Chairs in Retail Outlets states that ‘… the use of chairs/stools is not permitted whilst performing any counter duties’, due to OHS concerns of the nature described above. The policy goes on to state ‘… an approved chair/stool positioned away from the counter may be provided for medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken by an OHS Adviser’ (the emphasis was provided in the original policy statement, as earlier appears in [19] above).

   An area of 1190 mm extends behind the counter where Mrs Daghlian performs her duties currently, which is insufficient for provision of a chair positioned away from the counter.

   RECOMMENDATIONS:

   1.The existing chair used by Ms Daghlian for performing seated duties at the counter should be removed. Further medical assessment may be required to clarify Ms Daghlian’s capacity to undertake counter duties. Specifically, the medical advice should specify the time-limits Ms Daghlian may stand and work continuously, and the anticipated duration of these restrictions.

   2.A further workplace assessment should be undertaken, subject to the outcome of the medical assessment described above, to undertake risk assessment on the provision of a chair away from the counter for intermittent rest purposes.’

6. It does not appear that her two abovementioned recommendations were implemented. The following additional observations may be made:

   (i)Ms Beazley’s report did not refer to, and did not purport to take into account, the previous workplace assessments and reports which I have earlier summarised, and which addressed possible ways and means of accommodating the applicant’s circumstances and duties of employment, which, as already indicated, were by no means confined to counter duties (albeit those were her predominant duties), and extended for instance to word processing and accounting for daily monetary balances;

   (ii)The report also did not purport to address Mr McNamara’s opinion that the applicant’s stool ‘… should be of a design incorporating back support and some flexibility in back/support to aid in movement required to serve customers’; it spoke only of the possible provision of a chair to be used ‘away from the counter for intermittent rest purposes’, in conformity with what had apparently become part of Australia Post’s policy one year earlier, which was not in any event possible by reason of the apparent insufficiency of space available in the applicant’s workstation, as described below; and

   (iii)The report observed that the ‘area of 1190mm extends behind the counter where Mrs Daghlian performs her duties currently, [being] insufficient for provision of a chair positioned away from the counter’. A distance of 1190 millimetres would seemingly have accommodated room for an appropriate ergonomic chair located immediately behind the standing room adjacent to the counter, of the kind described by Dr Coucher (see [6] above) or by Ms Smith (see [7] above), or by Mr McNamara (see [15(iii)] above), given the applicant’s testimony that other employees did not have cause in any event to enter her workstation area at the end of the counter, at least whilst she was on duty (see [16] above), because of insufficiency of space.

7. Ms Beazley provided the following additional explanations concerning her report, in the course of her viva voce testimony:

   (i)The references to ‘tripping by catching a foot or feet’ in her report applied not just to the applicant, but also to other employees of Australia Post who had access to the area where the applicant’s stool was positioned; however she accepted that she had no instructions as to whether any such tripping had ever occurred during the preceding ten years or so of the applicant’s employment at the Manly Post Office; moreover as I have already indicated, there was no room for any other employee to enter her working area whilst she occupied the same;

   (ii)At the time she prepared her report, she observed the applicant carrying out her duties for about one hour; it may be inferred that Ms Beazley did not speak to the applicant;

   (iii)She took into account in making her assessment the fact that the stool the subject of her report did not provide proper lumbar support, and was therefore not the sort of ‘…chair that you would want someone sitting on for any length of time’; and

   (iv)She agreed that she ‘may have come to a different conclusion [to that set out in her report], if Australia Post had not had the stool policy that she referred to in her report, and if the stool had not been such an antiquated piece of furniture’. Her task, so she further testified, had been to assess the applicant ‘with the counter as it was and the stool as it was’ in the work place that existed at the time of her report (ie 29 May 2000); and not to make suggestions ‘about how the counter might be changed’. However she agreed, over objection from counsel for Australia Post, that ‘there’s potential’ redesigns of the workstation which would have been of assistance to the applicant’s limitations.

8. The applicant testified that prior to the report of Ms Beazley, her work performance had never been criticised or disapproved to her knowledge by or on behalf of Australia Post, and that she had performed her duties to the satisfaction of the management of Australia Post, and moreover that ‘[t]he stool did not interfere with my duties’. That testimony of the applicant is not inconsistent with the employment reference of Mr Cass Ressel later reproduced in these reasons, which established that so far as Manly Post Office management was concerned, she was a committed and amiable employee. No member of the Manly Post Office staff, that is to say, none of the applicant’s fellow employees, gave evidence at the hearing either for the applicant or Australia Post (save as to Mr Ressel’s attractive employment reference). The applicant joined issue, for what it may matter, with Ms Beazley’s observations that ‘[w]hilst sitting on the stool Ms Daghlian demonstrated a perched posture on the front half of the stool’. In the course of cross-examination, Ms Beazley modified that contentious observation by conceding that ‘the weight bearing of Ms Daghlian would have been towards the front half of the stool so not necessarily centred over the seat of the stool’, and further that ‘… the stool seat would have possibly been covered by Mrs Daghlian’.

9. The matter of stool policy for counter staff had continued to be the subject of discussions within Australia Post since the reformation of the policy, or at least the restatement thereof on or about 4 June 1999, that is to say, before Ms Beazley’s report was issued. An internal Australia Post memorandum of 21 July 2000 from the Human Resources Department to the Injury Prevention and Management Unit (Mr David Nelson), which was issued after Ms Beazley’s report, referred to a suggestion that Australia Post would commission a new counter design that would enable counters to be converted to accommodate chairs for staff with medical restrictions. Instructions upon that suggestion might well have been material to Ms Beazley’s report. The response of 22 August 2000 of the Group Manager for Human Resources (Mr Rogan) contained the following:

   ‘…

   As you will be aware, work has been proceeding for some time on the development of a new national shop fitout/counter… you will also be aware that we have received ongoing representations from the national office of the CEPU regarding the provision of chairs/stools for employees performing counter duties at retail counters.

   As far as the new counter is concerned, the CEPU was advised that it would, like all other relevant stakeholders, be consulted on the design and that we would advise the union of investigations into “reasonable adjustment” to the new counter design to accommodate a chair/stool.

   …

   The new counter is designed for staff to work from a standing position consistent with normal practice at our retail outlets…

   …

   The union has been advised that our policy position on the provision of chairs/ stools allows for:

   “The provision of an approved chair/stool positioned away from the counter, for pregnant and medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken by an OHS Adviser Where the outcome of the risk assessment is that a stool/chair cannot be positioned at the outlet where the employee usually works, investigations will be undertaken to determine whether this can be accommodated within another outlet within the employee’s work area.”

   …

   The commitment given by Australia Post to the union at the Retail Consultative Forum is that a design accommodating seating behind the counter will be commissioned… The risk assessment will need to be undertaken by the corporate agronomist and the union will be invited to participate in that assessment which is expected to take place in early September 2000 ie after delivery of the approved it-stand stool.’

   The applicant would fall within the above description of ‘medically restricted’. It is unclear from the evidence as to whether any such chair/stool was ever approved by Australia Post.

10. Mr Nelson’s response of 5 September 2000 included the following:

    ‘…

    The situation regarding chairs behind the counters is clear cut: the policy of A.P. is not to allow them due to egress way restrictions at a counter and ancillaries, built for standing.

    The CEPU are opposed to the policy and want an (industrial?) agreement with [Australia Post] to allow chairs behind counters.

    We believe that the only part of the policy that will allow sitting behind a postal shop counter, is that of a rehabilitee where medical advice states that sitting is a required part of the rehabilitation process.

    It is envisaged that the only unit likely to work on any intermittent basis behind a counter, is a sit-stand form of seat. A risk-assessment to identify the hazard of the operator chair (fully equipped with 700mm dia base, ringed foot-rest, armrests) and an Ergonomics-Armdec form of sit-stand chair (the only type to be certified), is to be undertaken soon in the “model retail shop”. I am awaiting the operator chair and foot-ring. If you desire it, I will embody your unit in the risk-assessment process.

    It is likely that application of the policy will be extended in such a way that the rehabilitation manager is in control of the ‘chairs’ (and not the retail facility manager), and that the chair be removed by the case manager at the appropriate time from the facility. It is unlikely that retail counter work will be offered under the policy to those staff who require anything more than short-term sitting whilst recovering from occupational injury.’

1. Given the nature of the applicant’s work related disability stemming from the circumstances I have earlier identified as having occurred in 1991, it could not be said that by this time, she was involved in any ‘rehabilitation process’ (see again [6] above). On the other hand, the last sentence of Mr Nelson’s report might be read as applying only to staff who have not previously worked at an Australia Post retail counter, unlike of course the applicant.

2. The ensuing internal correspondence within Australia Post sought to clarify the then status quo of the process of relevant policy-making. It would seem that the status quo remained the policy reflected in the internal documentation of 4 June 1999 (see [18-19] above), subject only to ‘… the possible issue of an ergonomically approved sit-stand chair to an employee requiring intermittent seating on a short-term basis and as part of a rehabilitation program’, and that upon resolution of that issue and a new national counter design being finalised, ‘… we will be seeking feedback from the States on the proposed changes to the current policy in relation to the sit-stand behind the new counter module’. In his oral evidence in chief, Mr Lowe said that he considered, ‘as part of the overall process’, whether the existing counter at the Manly Post Office could be modified to enable her ‘to work safely at a stool behind the counter’, and said that ‘… there is no design available that will allow Mrs Daghlian to sit at a counter, be it with a sit/stand stool or some other form of ergonomic chair that would enable her to conduct the activities that were a necessary part of her day-to-day job at Manly’. Yet whilst no counter modification has been made to accommodate any other employees with disabilities, counter modifications had been made for tall persons, by the creation of a ‘counter-raiser’, so that they could ‘… effectively operate without stooping… and that actual apparatus could be attached to the top of the existing counter and could easily be removed’.

   The events leading to the applicant’s deployment from Manly Post Office

3. On 25 January 2001 the applicant met with Mr Adam Lowe (supra), an occupational health and safety manager employed by Australia Post, to whom reference has already been made in [26] above. Mr Lowe had been originally employed by Australia Post as a postal services officer with duties involving 23 locations. From 1990 to 1994, his work specifications had changed to those of a leave entitlements clerk. From 1994 to 1996, his work specifications changed again to that of an assessor/personnel officer in the Human Resources Department for the geographic region which encompassed Manly Post Office. Mr Lowe had a bachelor degree in occupational health and safety, a human resource practising certificate and an advanced certificate in personnel management. Also as earlier indicated, Mr Lowe was subordinate to Mr Skeen. Mr Lowe said to the applicant, according to her testimony, ‘you are to stop using the stool. I will be back in two weeks to take it away’. Mr Lowe does not appear to have denied the essence of that direction. He admitted to having been aware of the applicant’s use of her stool since about May 1996. Mr Lowe did not subsequently return to Manly Post Office to take the applicant’s stool away from her in any physical sense, though the applicant said that she was ‘too scared to continue using it’. Mr Lowe did not offer to replace the applicant’s stool with a chair or stool away from the counter, where ‘warranted for intermittent rest purposes while not serving at the counter’, to cite an expression used in Australia Post’s policy statement of 4 June 1999, though in her case, she would have required a facility to that effect for the remainder of her working life. I confess to finding Mr Lowe’s seemingly abrupt conduct somewhat enigmatic, not merely by reason of what I have earlier said in [24] above. Although he sought to justify the applicant’s use of her stool as a trip hazard, ‘… because of the way it protruded in areas where there was very little space and where other employees have to have access to’, he agreed in cross-examination that he did not ‘observe other employees having to have access to that area’. Moreover he also agreed that Australia Post made no suggestion that the applicant did not enter upon the post shop floor to sell products, as part of her responsibilities.

4. Mr Lowe testified that the applicant’s reaction to the possibility of new employment opportunities of an administrative character as distinct from a counter description, if any such position became available at places in southern Sydney, Strathfield and Hornsby (no such opportunity of course existed at the Manly Post Office, or it would seem, anywhere on the northern beaches or lower north shore), was that of rejection, though she ultimately said to him that she was prepared to work at Australia Post’s head office and administrative centre for the State of New South Wales at Strawberry Hills, where a temporary position had become available for seven days, during which time a vocational assessment of the applicant by Australia Post would be made. He further said that when he spoke to the applicant during that time, she said ‘I find it difficult walking from Central to Strawberry Hills. It is hurting me’. Mr Lowe’s reaction was that ‘… he started to think that perhaps Strawberry Hills was not really an option as, even if a permanent position was found at Strawberry Hills, the applicant would be unwilling to take it up’.

5. On 12 February 2001, Mr Lowe wrote to the applicant in the following terms:

   ‘PROVISION OF CHAIRS/STOOLS AT RETAIL COUNTERS

   I [r]efer to our previous meetings and discussions regarding Australia Post’s Policy on the ‘Provision of Chairs/Stools at Retail Counters’.

   You will recall that on 25 January 2001 you were offered an additional two weeks ‘fair opportunity’ to provide further information to Australia Post relating to your medical condition and to consider your availability for redeployment.

   I wish to advise that your two week “fair opportunity” period has expired. Given there has been no further information provided I have asked your Postal Manager, Mr Cass Ressel to instruct you that as from close of business today (12/2/01) you will no longer be permitted to use a chair or stool at the counter. You should be aware that if you fail to adhere to this instruction disciplinary action may be taken against you.

   Australia Post is aware that you currently have a medical condition which requires permanent restrictions and would like to refer you to the Commonwealth Rehabilitation Services (CRS Australia) for a Vocational Assessment. The purpose of this assessment is to determine your inherent transferable skills and abilities in order to consider redeployment options both within and if necessary, outside the Corporation.

   If you wish to avail of the opportunity of referral to CRS, you will need to tick the appropriate box and return the attached release authority to Cass Ressel who will forward it to me. For your information, CRS Australia provides vocational assessments for staff who need to seek alternative employment as a result of being unable to meet the inherent requirements of their position due to medical restrictions. The assessment results may assist Australia Post to determine if there are any suitable redeployment options either with the Corporation or in the wider community where your restrictions can be accommodated.

   CRS Australia conducts a detailed assessment of your skills and abilities based on work history, education, etc and given the medical restrictions then provides a report which identifies specific fields of employment to which you may be suited. Australia Post will pay for this assessment.

   If you agree to attend CRS Australia, I will make a referral and a CRS employee will contact you to arrange an appointment time. If you choose not to accept the offer of a Vocational Assessment, it may be more difficult for Australia Post to determine redeployment options for you and subsequently lead to a direction to take sick leave.

   To enable this assessment to be arranged and further redeployment possibilities to be investigated, suitable duties will be provided until Friday 23 February 01. The provision of short term suitable duties may require you to temporarily change location, however any provision of long term duties will require your permanent transfer from Manly. You should be aware that the offer of redeployment is dependent on suitable vacancies being available. Failure to identify a suitable vacancy by 23/2/01 will lead to a direction to take sick leave.

   If you wish to clarify any aspect of this letter or discussions to date or have any questions relating to possible future outcomes please contact me on 49 743 186 or 0417 247902.’

   It is unclear what was the ‘further information… relating to your medical condition’ which Australia Post had in mind. Ms Beazley’s report had been on hand since the end of May of the preceding year.

6. Contemporaneously with Mr Lowe’s above directions of 14 February 2001 given on behalf of Australia Post to the applicant, the Postal Manager at Manly Post Office, Mr Cass Ressel, who was identified in those directions, provided the following employment reference bearing date 14 February 2001 in relation to the applicant:

   ‘To Whom It May Concern

   This is to verify that I have known and worked with Sarah Daghlian for over two years.

   Sarah is punctual, well presented, always responsible, courteous and helpful with dealings with our customers and me.

   She is committed to her job as a postal services officer, accurate and a good learner.

   I have always found Sarah to be honest and I have no hesitation in recommending her to any position now or in the future.’

   No testimony to the contrary of that employment reference has been adduced by Australia Post in evidence. Whether the reference (or a copy thereof) was provided to Mr Lowe at the time is unclear.

7. At the time when the above letter of offer of 12 February 2001 was written by Mr Lowe on behalf of Australia Post to the applicant, the likelihood of any redeployment of the applicant elsewhere in Australia Post, at least within what might conceivably have been a reasonable travelling distance from Manly for a person having the applicant’s physical handicaps, would seem to have become close to unlikely, if not virtually remote, if the content of the letter of 12 February 2001, together with the following affidavit testimony of Mr Skeen as to his investigation of feasible working opportunities for the applicant, from and after his initial meeting with the applicant in about May 2000, are any guide:

   ‘…we certainly looked at other employment options in an administrative role, for example, in many many other locations. Mrs Daghlian indicated to me that she wasn’t prepared to move outside the Manly area initially and that certainly not beyond that northern beaches type of area. So I made exhaustive inquiries personally from everywhere, from the area manager’s office in Hornsby down through all the postal centres in the north shore delivery centres and so forth and into our State head office at Strawberry Hills for opportunities. I think I personally made phone calls nine times to these different area managers and so forth over the period of time to ensure that there wasn’t any options because clearly this case was taking some time to manage.’

   All of those endeavours on Mr Skeen’s part were directed to locating a vacant administrative position, and not a position as a postal officer behind the counter, such as the applicant had undertaken at the Manly Post office since 1989.

8. On 15 February 2001, Australia Post (Mr Lowe) notified the applicant as follows:

   ‘TEMPORARY PLACEMENT – RETAIL SUPPORT GROUP

   I refer to our recent discussions (through the CEPU) regarding the application of Australia Post’s policy on the provision of chairs/stools in Retail. As mentioned by Peter Jones (CEPU) arrangements have been made for you to commence temporary duty today (15/2/01) at 8.30 am with the Retail Support Group at the State Head Office in Strawberry Hills.

   I wish to confirm verbal advice that you should report to the reception area at State Head Office, Ground Floor, 219-241 Cleveland Street, Strawberry Hills, where arrangements will be made for someone to meet you.

   As mentioned to Mr Jones your temporary placement is in the EPOS Help Desk area and will be until the end of your shift on Friday 23 February 2001. During your time at State Head Office you should report to Jing Tanghok who will assist you where needed and provide you with details about your specific work tasks.

   Whilst at State Head Office you will also be contacted by Cheryl Ferrington from the Medical Assist Unit who will arrange your Vocational Assessment. Ms Ferrington will provide you with details such as an appointment time and date and any other necessary information.

   You should be aware that no long term employment options exist within the Retail Support group at this stage, however I can assure that attempts are being made to explore the possibility of further placement beyond 23 February 2001.

   If you wish to discuss or clarify any issues associated with this temporary placement or possible redeployment options please contact me on 49743186.’

9. The applicant attended the Australia Post administrative centre at Strawberry Hills for the scheduled six days, one of which involved a vocational assessment, and the others of which were spent in the Call Centre located in those premises, where administrative duties were undertaken by her. After her tenure of nearly 12 years at Manly Post Office, which appears to have been mainly a happy one, the circumstances of the so-called ‘fair opportunity period’, combined with the content of Mr Lowe’s letters of 12 and 15 February 2001, appears to have been a somewhat traumatic experience for the applicant. The change of location of employment to Australia Post’s Strawberry Hills Centre from the Manly Post Office involved not just significantly greater travelling distance and cost (ie an additional $75 per fortnight), but also travelling difficulties she had not previously experienced. The change also obviously involved cessation of the personal relationships which she had doubtless, I would further infer, from Mr Ressel’s reference, previously enjoyed, both with fellow employees and customers of the Manly Post Office, and was not a readily comparable employment alternative. Indeed the change of employment for a woman, in her declining years, and in her physical condition, from that environment to a large head office administration (which was a significant distance from her home), was doubtless traumatic. Mr Lowe may have later implicitly recognised those circumstances, by reason of the improvements to Australia Post’s terms of offer of employment at Strawberry Hills made about 6 months later, in the context of the litigation in the Australian Industrial Relations Commission commenced by the applicant against Australia Post on 9 August 2001 (post). The daily journey for the applicant, from Manly to Strawberry Hills and return, was said by the applicant to have involved up to 2½ hours, encompassing bus, ferry, and train travel. Particularly was that change of the applicant’s location of employment a formidable one for a woman of her age and of her physical circumstances to encounter, involving the adverse implications to her of managing the stairways between Circular Quay wharf and Circular Quay Railway Station, together with the walking distance of about 10 minutes duration between Central Railway Station and Strawberry Hills, and her apprehension, whether entirely justified or otherwise, of physical assault and robbery in inner city localities unfamiliar to her. When confronted in cross-examination, Mr Lowe indicated that there was nothing contained in the medical reports as to any difficulty which the applicant experienced in walking, as distinct from standing, but I do not think that in the present context, it was realistic of Mr Lowe to postulate in effect that standing and walking were mutually exclusive concepts in any relevant sense. The applicant testified that the Strawberry Hills’ employees of Australia Post did not leave the environs of the building during lunch time, ‘[b]ecause they told me that it was dangerous’. The applicant also said that when travelling by ferry, the seas were sometimes rough, and sometimes in the train, she was alone, and sometimes persons stared at her. Mr Lowe also sought to make the point, in his re-examination, that there was nothing in the medical reports which suggested that the applicant was incapable of managing the travel to and from Strawberry Hills, but of course none of the reports obtained for the purpose of the original Australia Post decision-making in February 2001 were directed to any such issue.

10. On 23 February 2001, pursuant to what he described as his formal decision, Mr Lowe wrote again to the applicant on behalf of Australia Post as follows:

    ‘As discussed at our meeting on 25 January 2001, I confirm that you are directed on sick leave from commencement of shift on 27 February 2001. As from this date, you are eligible to avail of sick leave in accordance with your credits. You will not need to send any medical certificates to support your absence on sick leave.

    You are being directed on sick leave because:

    ·you have provided medical evidence dated 22.5.00 from Dr Artinian and medical evidence dated 20.6.00 from Dr Kandine that states the restrictions are required on a permanent basis.

    You may remain on sick leave for a maximum period of 78 weeks but will only receive pay during that time in accordance with your sick leave credits. At the expiration of your sick leave credits, if you wish to use any other credits you may have, in lieu of sick leave without pay, you must submit a leave application form to the Human Resources section. The acknowledgement form and leave application form are enclosed for your completion and return to me. A copy of your leave balance report is also enclosed.

    If at any time during the 78 weeks you provide, at your own expense, medical evidence that you can meet the inherent requirements of the actual position you currently occupy within three (3) months, your case will be reviewed.

    However, Australia Post reserves the right of an AP nominated doctor to review and agree with any recommendations from your treating doctor before your direction on sick leave can be revoked.

    …

    Any return to work on modified duties is also dependent on your workplace being able to accommodate the medical restrictions.

    If you wish, Shared Services will provide you with an estimate of the Australia Post monies and Superannuation benefit that would be paid to you should you elect to retire on medical grounds from the expiration of your paid sick leave and annual recreation leave credits. They will provide this information to you within 2 weeks. You will need to contact me to arrange this.

    When you receive these estimates you may wish to seek independent financial advice from an accredited financial adviser. Australia Post will pay up to a maximum of $150 for financial advice. Simply send your receipt to me and I will arrange for a refund of the $150.

    At the expiration of 78 weeks, you will be retired on medical grounds in accordance with Award conditions.

    However, if you wish to retire at any time from 12 weeks after the direction on sick leave up to the expiration of the 78 weeks, or indeed if you have any inquiries at all in relation to your current situation, please do not hesitate to contact me on 02 4974 3186 or the Medical Assist Unit on Ph: [phone].’

    Mr Skeen said that Mr Lowe had kept him informed of what was occurring in connection with the implementation of Australia Post’s chair policy, as it impacted upon the applicant, and in particular the above direction of 23 February 2001, and claimed that he (Mr Skeen) ‘continued thereafter to try and find alternative duties for the applicant within her medical conditions’. Incidentally, Australia Post led evidence to the effect that according to the terms and conditions of the applicant’s employment it was authorised, on receipt of a medical report, to direct an employee to take sick leave for a specified period, ‘[i]f it is believed that an employee is incapable of performing duty or constitutes a danger to other staff or the public due to the employee’s state of health’. According to Mr Brotherson, an employed legal adviser to Australia Post, an employee of Australia Post is in principle no worse off financially if he or she is on sick leave than if he or she is working, and the maximum period of sick leave is 78 weeks, plus such additional sick leave as relates to the period of absence on sick leave within that maximum of 78 weeks.

1. I would resolve in favour of the applicant the issue arising under s 6(b) of the DD Act, that is to say, whether the Australia Post requirement or condition imposed on the applicant to perform her counter duties whilst standing, and without intermittent resting, was not reasonable, having regard to the circumstances of the case, primarily or mainly for the following reasons based on the historical evidence which I have already reviewed in detail:

   (i)in the course of performing her counter duties at Manly Post Office, being duties undertaken from apparently the outset of her employment in 1989, the applicant had sat on a stool from time to time without restrictions imposed by Australia Post, in the circumstances described and for the reasons appearing in [4-16] above; that situation continued until the occasion of Mr Lowe’s controversial visit to Manly Post Office on 25 January 2001 described in [35] above; its somewhat uncertain reasons for so doing, explained at length, as reproduced at [45-52], have not satisfied me why it was for an employee, whose ability to carry out the requirements of her relatively longstanding employment, without any suggestion of danger to other employees, had never been questioned, should have been classified, in effect, as a potential physical danger to her co-employees by way of causing them to trip, to the extent that she should no longer be entitled to ‘intermittent rest’ (to adopt the language of the chair policy which Ms Beazley adopted) whilst on counter duty;

   (ii)despite recommendations made in medical and ergonomic reports from 1991 to May 2000 provided to Australia Post by its own nominees, as well as medical reports of a more brief nature obtained by the applicant for Australia Post from Dr Artinian, and also from Dr Kandine, the applicant was not provided, nor informed that she would be provided, with a stool or a chair of appropriate ergonomic design containing lumbar support in particular, being recommendations which were designed to assist her to work satisfactorily and efficiently in the performance of her counter duties, notwithstanding her physical disabilities;

   (iii)there was no evidence that the applicant was otherwise than a competent and conscientious employee of Australia Post, and a dutiful team member of the counter staff in every fair sense of that description (see again in that regard [38] above);

   (iv)there was no indication in the evidence otherwise than that her use of the stool in her workstation had not been the cause of any other employee, or herself for that matter, to trip in the workplace (see [75(iv)] above); conversely the ongoing provision and use of trolleys behind counters at all post offices had been an acknowledged cause of tripping of employees, yet that facility had remained in use after the conversion of post offices to post shops, because of their utility to the movement of parcels from the counter to the mailroom (see [75(iii)] above); that is not to suggest that the ‘no stool/chair’ policy was inherently inconsistent or flawed on that account, but only that the trolley factor tends to demonstrate that the no chair/stool policy had been accorded undue emphasis by Australia Post in the context at least of its enforcement, if not also in the text of its formulation; moreover there was also a measure of inconsistency involved in Australia Post’s emphatic enforcement of the policy, at least in relation to the applicant, in the light of its affirmative policy on the provision of counter stands for persons ‘of short stature’ (see [72] above);

   (v)there was no evidence, or at least persuasive evidence, to the effect that the inability of the applicant to lift or carry parcels above 5 kg in weight, to and from the mailroom, with or without the assistance of a trolley, occasioned operational inefficiency, or generated any staffing complaints, resentments or disruptions; nor was there any evidence to the effect that all or perhaps even the majority of Australia Post employees, apart from the applicant, met Mr Lowe’s purported criteria of lifting etc loads of 16 kg unaided, and of 20 kg with assistance; there was no suggestion in any event that the applicant shirked her duties of lifting within her capacity by remaining seated when that kind of task was on hand for her to perform as a counter employee;

   (vi)there was no evidence to the effect that the maintenance of some form of seating accommodation behind the counter for ‘intermittent rest’ purposes, to adopt the description used in the Australian Post policy at [19] and Ms Beazley’s report at [27], was destructive of or prejudicial to the new post shop image sought to be created after conversion of post offices (such as Manly) from their traditional format to the new post shop format, nor that it diminished, at least to any material extent, the efficiency of the post office counter operations of the applicant and her accompanying counter employees;

   (vii)the circumstance that the applicant’s workstation behind the counter was too small in dimension to allow for her stool (or an ergonomically designed chair which, on the evidence, should have been provided by Australia Post for her many years earlier) to be positioned away from the counter, so as to occasion less potential obstruction to other counter employees who might conceivably enter the same, was not a sufficient reason for Australia Post to emphatically deny to the applicant any opportunity at all of being seated for intermittent rest purposes in the course of carrying out her counter duties; that insufficiency of space presented a problem for Australia Post, and not the applicant, to resolve, if Australia Post was to pursue its emphasis upon observance of its ‘Policy on the Provision of Stools/Chairs in Retail Outlets’ (see [19] above) without exception, and in all circumstances; I would add that there was evidence of the desirability of constructing knee-wells in the counters, which would have increased the available working space for post shop employees behind the counters, particularly where needed, such as at the Manly Post Office (see [75(i) and (ii)] above); and

   (viii)the evidence of Mr Skeen under cross-examination was at least partly diminished in force and effect, by his making of the concessions, and by at least hypothesising the possibility of his reconsideration of the applicant’s case.

2. I have also been troubled about the ultimate implications of the applicant’s evidence to which I have referred in [76 (vi)] above, being implications suggestive of Australia Post’s desire to bring to an end her many years of employment. I have reached the conclusion that the applicant’s account of what was said to her by Mr Skeen on the occasion of that unforeshadowed visit demonstrates a view (by then held by Mr Skeen) that the applicant was not the kind of person appropriate to be any longer serving on a post shop counter of Australia Post.

3. It follows from my summary of findings of the circumstances that befell the applicant in January and February 2001, and the consequences flowing therefrom, that is to say, her effective removal from Manly Post Office, and placement on long service leave in circumstances indicative of unlikelihood of re-employment, that the applicant has made out a prima facie case for relief against Australia Post by reason of the denial of her use of seating accommodation at the Manly Post Office, and her subsequent removal from Manly Post Office and her employment there on counter duties, and her subjection ‘to any other detriment’ incidental to that removal falling within the scope of pars (a), (c) and (d) of s 15(2) of the DD Act. Australia Post discriminated against the applicant as its employee, on the ground of her physical disabilities, in the following respects stipulated by par (a) and/or par (d) of s 15(2) of the DD Act:

   (i)by the imposition of a term or condition of her employment that she not be seated at the retail counter at the Manly Post Office for intermittent rest;

   (ii)by the subsequent discontinuance of her location of employment at the Manly Post Office, which she had enjoyed for about eleven years, and deployment to Australia Post’s head office at Strawberry Hills for the period of six days, with a view to her possible further deployment to another post shop in the Sydney metropolitan area if an administrative position might become available for her;

   (iii)by the subsequent direction of the applicant onto sick leave classification from 27 February 2001 upon the terms and conditions of Australia Post’s letter of 23 February 2001; and

   (iv)by the subsequent absence of availability of any such position of employment, whether proximate to her home in Manly, or otherwise.

4. The issue next arising for determination is whether, because of her disability, the applicant was unable to carry out the inherent requirements of the particular employment, or in order to carry out those requirements, would have required services or facilities that would not have been required by persons without her disability, and the provision of which has or would have imposed an unjustifiable hardship on Australia Post, in accordance with pars (a) and (b) of s 15(4) of the DD Act. Australia Post sought to raise issues pursuant to s 15(4) of the DD Act, upon the basis that ‘… the respondent agrees that the applicant should now be treated as dismissed for the purposes of section 15(2)(c) and (4) of the Act upon the effluxion of the period of 78 weeks referred to at the foot of [the Australia Post letter of 23 February 2001]’. I will address those submissions upon the assumption that the ‘inherent requirements’ of the applicant’s ‘particular employment’ had not in fact changed at any material time up to the expiration of that period of time, and putting aside the further complication raised by Australia Post’s re-commencement of payment of salary to the applicant as from 27 August 2002 (see [53] above) for reasons unexplained.

5. In X v The Commonwealth (at 187-188), McHugh J paraphrased the ‘inherent requirements’ of a particular employment, for the purposes of s 15(4) of the DD Act, as the ‘essential element’ thereof, and as relating to ‘much more than the physical ability to carry out the physical tasks encompassed by the particular employment’, and also to obligations of fidelity and good faith on the part of the employee, and to an implied warranty of an employee to exercise reasonable care and skill in carrying out the employment. I do not understand Australia Post to have alleged non-fulfilment on the applicant’s part of any of those employee obligations, nor in the light of the evidence could that have been so; however his Honour proceeded to exemplify (at 188) an ‘inherent requirement’ as constituted, in particular, by ‘carrying out the employment without endangering the safety of other employees’, which relates to the purported basis, or at least an important aspect, of Australia Post’s case in relation to the applicant.

6. At 190-191, McHugh J explained and exemplified the inherent requirement of an employee to carry out his or her employment without endangering the safety of other employees (the following further statements of principle appearing in his Honour’s reasons have relevance to the circumstances of this case):

   (i)‘[i]n determining whether the employee poses a risk to the health or safety of other employees (or other persons or property), ordinarily it will be relevant to have regard both to the degree of the risk (in the sense of it being realised) and the consequences of it being realised (in the sense of the seriousness of the harm that will ensue if it is realised);’

   (ii)‘[i]n determining whether the employee poses a risk to the health or safety of others because of his or her disability, the risk must be specifically referrable to those persons or things affected by the particular employment... If the particular employment requires the employee to work in close contact with others, for example, a disability of the employee may pose a real and constant risk to those other persons;’

   (iii)‘[b]y reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer?’

7. In the joint reasons for judgment of Gummow and Hayne JJ, with which Gleeson CJ and Callinan J agreed, the following appears at 208:

   ‘The reference to “inherent” requirements invites attention to what are the characteristics or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to “inherent” requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment to meet the needs of a disabled employee or applicant for work.’

8. In the present case, the evidence has established in my opinion that the applicant was at all material times able to carry out the inherent requirements of her particular employment, which for the majority of the time involved her in serving customers at the shop counter (it will be recalled that in addition, the applicant undertook certain clerical duties). No issue was raised by Australia Post as to her competence and fidelity as an employee, and as an effective ‘team member’ at the Manly Post Office. Her physical restrictions in carrying the apparently occasional heavy parcels to and from the counter was not an issue referrable to an inability on her part to carry out any inherent requirements of her employment, nor on any fair and reasonable weighing of the material in evidence, could any such issue have sensibly and realistically been pursued. The issue raised by Australia Post under par (a) of s 15(4) appears to have been confined to one of safety of the applicant’s execution of employment duties in relation to her co-employees.

9. I have of course already made findings on the safety controversies arising in the context of s 6(b) of the DD Act, in the course of my reasons appearing in [111] above. Those findings effectively resolve in my opinion what may be described as the safety issue in favour of the applicant, to the extent that the same arises in the context of par (a) of s 15(4) of the DD Act. Moreover the fact merely that in about the tenth year of the applicant’s employment, Australia Post introduced its ‘no chair’ policy, without more, was not enough, in relation to physical circumstances of the applicant, and in the context of her workstation at the end of the counter, to establish an inability on her part to carry out the inherent requirements of her position. In making that finding, I put aside whatever significance may be attributed to the somewhat uncertain expression ‘for intermittent rest purposes’ contained in the text of the Australia Post chair policy, being an expression tending to favour the applicant’s case.

10. If my finding in favour of the applicant as to ‘inherent requirements of the particular employment’ stipulated by par (a) of s 15(4) be incorrect, I would nevertheless have found that it would not have imposed an unjustifiable hardship upon Australia Post, within par (b) of s 15(4) of the DD Act, when read in the light of the provisions of s 11 of the DD Act, to have provided a stool or chair, equipped with adequate lumbar support (ie an ergonomic seating arrangement) for periodic use by the applicant in her workstation, in order to accommodate the findings of Dr Steel (made on the instructions of Australia Post). Given in particular my findings in favour of the applicant, for instance, in relation to the absence of any tripping on her stool, the positioning of her workstation at the end of the counter, and given also the apparent willingness of the other members of the Australia Post counter staff for the time being, so I would infer, to assist the applicant with the handling of parcels beyond her carrying capacity, I am unable to perceive room for any circumstances conceivably within pars (a) and (b) of s 11 of the DD Act to bear upon the statutory notion of ‘unjustifiable hardship’. Moreover Australia Post’s omission to call evidence as to the cost and logistics of enlarging the applicant’s workstation, upon what I would regard as the unlikely basis that any such seating arrangement at the far end of the counter would have constituted a realistic danger of tripping to other staff, constitutes a further factor in derogation of the demonstration of the ‘unjustifiable hardship’ factor raised by Australia Post.

11. The conclusion which I have therefore reached, namely that in the circumstances which happened, Australia Post indirectly discriminated against the applicant within the scope of s 6 of the DD Act, will require an assessment of the relief sought, as foreshadowed in [62-63] above. That assessment will require a further hearing, as the parties have mutually agreed in principle, partly to update what has since occurred in relation to the quantification of sick leave, and Australia Post’s unexplained resumption of wage payments subsequently to the expiration of the maximum period of sick leave, and partly to receive evidence by way of cross-examination of the psychiatrists respectively retained by the parties. It may be of some assistance, if the parties are minded to endeavour to resolve the issues as to the nature and qualification of the remedies sought, for me to express certain tentative views on the subject:

    (i)the quantification of wage loss to date would need to take into account the generous sick leave payments which the applicant has received in accordance with Australia Post regulations or policy; the reinstatement of sick leave benefits sought by the applicant may conceivably have minimal value, since the benefits paid to date would of course need to be credited in the quantification of wage loss, and there will doubtless be contested issues as to whether the applicants’ retirement age would be 60 or 65 years of age, or 63 years as has since been claimed by the applicant;

    (ii)the applicant will need to give credit in respect of her past (and if applicable future) earnings from telemarketing, by production of appropriate records; and

    (iii)whether an apology would also be appropriate in the circumstances is unclear, given that the course adopted by Australia Post has been purportedly based on policy grounds and accompanied by generous sick leave provisions and an apparent resumption of salary payments.

12. By reason of the matters yet to be resolved, the appropriate course is for me to presently grant declaratory relief in favour of the applicant on her cause of action for discrimination, and to make an order that the respondent pay the applicant’s costs of the proceedings. I observe that I am empowered to make an order declaring that the respondent has committed unlawful discrimination, upon the footing of s 46PO(4)(a) of the HREOC Act, but my preferable course at the present is to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), and stand over the grant of consequential relief pending the resolution of the remaining issues involved in relation to relief.

I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             23 July 2003

Counsel for the Applicant:	D Dawson
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Brian Muir & Co
Dates of Hearing:	22, 23 & 24 October 2002
Date of Judgment:	23 July 2003