Darlington v Casco
[2002] FMCA 176
•5 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARLINGTON v CASCO | [2002] FMCA 176 |
| HUMAN RIGHTS – Disability discrimination – alleged discrimination in employment – restriction of casual employment to one shift per week – whether employer entitled to impose restriction on hours of employment to reduce the risk of the employee aggravating a pre-existing injury. Disability Discrimination Act 1992 (Cth), s.15(2) Arrah v P&O Catering Services Pty Ltd [2002] FMCA 27 |
| Applicant: | GARY JOHN DARLINGTON |
| Respondent: | CASCO AUSTRALIA PTY LTD |
| File No: | SZ189 of 2002 |
| Delivered on: | 5 September 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 19 August 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Wilkins |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Dibbs Barker Gosling |
ORDERS
The Court DECLARES that the respondent unlawfully discriminated against the applicant on account of his disability by reducing his hours of work to one shift per week between 15 May 1998 and 31 May 1998.
The respondent is to pay damages to the applicant of $1,140, plus interest up to judgment at the rate of 9.5 per cent.
The Court DIRECTS that the parties be given liberty to apply for costs orders within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ189 of 2002
| GARY JOHN DARLINGTON |
Applicant
And
| CASCO AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a former employee of the respondent. He brings these proceedings under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging unlawful discrimination by the respondent contrary to s.15(2) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The applicant claims that the respondent discriminated against him in the allocation of shifts to casual coal samplers. The respondent admits that the applicant was restricted to one shift per week in circumstances where other casual coal samplers received more shift work but says that this action was reasonable and necessary in order to protect against the risk of the applicant aggravating an existing injury.
The application was filed in the Federal Court on 10 May 2000 and was heard by his Honour Katz J over three days from 31 October 2001 to 2 November 2001. Unfortunately, Katz J became seriously ill following the hearing and was unable to produce a judgment. On 15 March 2002 his Honour Emmett J ordered that the proceedings be transferred to this Court and issued a certificate under s.10(2) of the Federal Proceedings (Costs) Act 1981 (Cth).
It was agreed that all evidence presented in the trial before Katz J would be evidence in the proceedings before me. I also adopted the rulings on evidence made by Katz J. An oral hearing was conducted before me on 19 August 2002 solely for the purpose of receiving submissions and documents. I have not had the benefit of seeing any of the witnesses and so I am not in a position to make well informed judgments on credibility. Fortunately, there are not significant contests on the evidence. The contest between the parties is not so much about what happened but about the legal significance of what happened.
Background
The following facts are not disputed. The applicant commenced employment with the respondent in Wollongong in 1980 and was made a permanent employee after three months. In approximately 1990 the applicant commenced working as a coal sampler on a permanent basis. The job of a coal sampler is essentially a manual labouring position. It involves shovelling coal into buckets and taking them to a location where the samples of coal so gathered can be analysed by technical staff. Historically, the work of a coal sampler has been heavy, both in terms of the carrying of buckets of coal and in terms of moving 44 gallon drums from place to place.
On 29 December 1994 the applicant sustained an injury to his neck while moving drums on the back of a truck at work. On 23 March 1995 the applicant presented himself to Bayview Family Health and Medical Centre complaining of paraesthesia (pins and needles) in both hands, and pains in his forearms and anterior chest wall. On 5 April 1995 the applicant consulted Dr Manohar about his symptoms.
On 7 April 1995 the respondent terminated the applicant’s employment as a permanent coal sampler due to the loss of a contract. However, on the same day the applicant was offered casual employment as a coal sampler when such work was available.
On 12 April 1995 Dr Manohar diagnosed the applicant as suffering from bilaterial median nerve compression syndrome, medial epicodylitis (the left side greater than the right) and extensor mialgia of both forearms. The doctor recommended surgery.
On 16 November 1995 the applicant made a claim in the Compensation Court of New South Wales.
On 5 February 1996 the applicant was reappointed as a permanent coal sampler of the respondent. Following a medical report of Dr Puri on 15 May 1996 the applicant underwent a carpal tunnel surgery for both hands on 7 and 21 June 1996. He returned to work on 30 August 1996 under a rehabilitation programme prepared and monitored by Illawarra Occupation Health after having taken sick leave following surgery. On 14 October 1996 the rehabilitation programme was extended until 30 November 1996. On 25 October 1996 Dr Puri cleared the applicant as fit for normal duties as from 14 October 1996.
On 30 October 1996 the proceedings in the New South Wales Compensation Court were heard and a consent award was made involving an assessment of partial incapacity. Weekly compensation payments commenced being made pursuant to the award to compensate the applicant for an inability to work overtime. He also received a small lump sum award for pain and suffering.
On 26 November 1996 the applicant’s rehabilitation programme was again extended until 20 December 1996. It was further extended twice more, the last extension being on 21 January 1997 until 30 April 1997. On 20 February 1997 Illawarra Occupation Health reported that the applicant was performing duties at his pre-injury level except for manoeuvring 44 gallon drums. The applicant had informed Illawarra Occupational Health that a Dr Ajam had issued him with a three month certificate that he was suitable for duties with a restriction that he avoid heavy weights. Illawarra Occupational Health made a further progress report on 24 March 1997.
On 29 April 1997 the applicant recommenced performing normal duties as a full time coal sampler subject to restrictions on manoeuvring 44 gallon drums and lifting heavy weights. The respondent continued to pay the applicant amounts due in respect of unworked overtime pursuant to the consent award of the New South Wales Compensation Court. On 30 September 1997 Dr Ajam provided a report stating that the applicant was “completely asymptomatic” with regard to carpal tunnel release.
On 12 November 1997 the solicitors for the respondent wrote to the solicitors for the applicant requesting a suspension by consent of the award requiring payments for the unworked overtime. No agreement was reached.
On 27 March 1998 the respondent terminated the applicant’s employment due to a downturn in work with effect from 10 April 1998. The applicant received severance entitlements. On 7 April 1998 the applicant was offered and accepted a position of casual senior sampler with the respondent.
On or about 14 April 1998 the applicant advised the respondent that he did not wish to work weekend shifts but that he was able to work ordinary shifts that fell on a week day. He maintained that he was unable to work overtime. He was at that time still receiving weekly compensation payments for unworked overtime. In mid May 1998 the respondent decided to limit the applicant’s work to one eight hour shift per week.
On 1 June 1998 and on 9 June 1999 Dr Puri produced further medical reports indicating that the applicant’s condition had deteriorated. On 12 December 2000 the respondent filed an application for a further determination in the Compensation Court seeking commutation of the applicant’s award. On 14 December 2000 the Compensation Court ordered by consent that the applicant’s weekly payments be commuted by payment of $75,000.
On 18 December 2000 the applicant formally tendered his resignation to the respondent.
The applicant’s case
In addition to his application and supporting documents, the applicant relies upon his affidavits, filed on 10 May 2000, 22 December 2000 and two affidavits filed on 16 February 2001. He also relies upon affidavits by Joseph Hugh Hamill, his supervisor, and George Nadis, a former workmate.
The applicant also relies upon a medical report by Mr G F Wenzell in support of a claim for non economic loss.
Put simply, the crux of the applicant’s case is that the respondent discriminated against him between May 1998 and December 2000 (when he resigned) by restricting the applicant’s hours to one shift per week. The applicant asserts that over this period the respondent employed two other casual employees doing the same work who worked at least five shifts per week. The applicant asserts that he was treated less favourably than these other employees by reason of his disability.
The applicant had in his original application also made a claim based on his failure to obtain work as a laboratory assistant with the respondent but that claim was abandoned at the trial before Katz J.
The respondent’s case
The respondent relies upon its defence, filed on 19 September 2000 and upon affidavits by Mr G Condie (the respondent’s coal operations manager), filed on 20 September 2000, 16 February 2001 and 3 May 2001. Several affidavits of Helen Waldron, another employee of the respondent, were not read due to her unavailability in the proceedings before Katz J and the abandonment of the claim in relation to the laboratory assistant’s job. The respondent also relies upon a medical report of Dr G R W Davies relating to the non economic loss claim. The respondent also tendered in court in the trial before Katz J its anti‑discrimination policy and a group certificate evidencing income earned by the applicant as a casual backhoe operator in 1999/2000.
The crux of the respondent’s case derives from the first affidavit of Mr Condie at paragraphs 59 to 63. Given their importance, I reproduce those paragraphs in full:
Over the period from November 1997 and continuing throughout 1998 and 1999, from the various conversations I had with the applicant concerning his condition and ability to work overtime hours, including weekends, and my review of various medical reports including the following, I understood consistent with those reports that the applicant’s condition was continuing to deteriorate with and perhaps as a result of his employment with the respondent. I formed that view as a result of the following matters:
(a)I refer to the medical reports obtained by the applicant from Dr Puri dated 1 June 1998 and 9 June 1999 which respectively constitute annexures B2 and B3 to the affidavit sworn by the applicant on 9 May 2000 and which record that even after the reduction in his shifts, the applicant’s condition has deteriorated;
(b)in particular, I refer to Dr Puri’s report of the examination of 9 June 1999, which provides that Mr Darlington report the following to Dr Puri:
He reported that he continues to have trouble with both hands especially holding anything heavy for any prolonged period, like holding shovels and buckets in [his] hands in his work as a Tester with Cargo Superintendents Company… . he loses power in his hands and is unable to grip things satisfactorily on prolonged use. He reports that he had returned back to full work but this was reduced to one day a week as he was unable to take part in overtime which aggravated his condition of both arms… . he has been working as a Coal Tester for 20 years and reports that pain from the arms spreads to his left shoulder and left side of the neck… . he is concerned that he has developed lumps in the palm of both hands which become tender on holding anything heavy and he also reports stiffness of the neck and difficulty turning his neck, especially after work. His neck discomfort is accompanied by occipital headaches and he can feel dizzy at times. He also informed me that he sustained an injury to his left shoulder in June 1998 due to constant lifting and an ultrasound examination of the shoulder in June 1998 showed synovitis of the sub‑acromial bursa.
In his concluding “opinion and prognosis” Dr Puri states:
Mr Garry Darlington continues to suffer from disability in the use of both his hands and especially of the left arm. He has made satisfactory recovery from bilateral carpal tunnel decompression which was required for paraesthesia in his hands which he developed due to continuous and repetitive use of his hands with heavy equipment as a coal sampler. … He has also developed thickening of the palmar fascia in his hands which is work related. … The discomfort in the forearms affecting his left elbow and also the left shoulder is mainly due to musculo-fasciitis and the same pathology affects his neck.
and:
This is liable to get worse off and on especially if he is involved in repetitive or heavy work. I consider him fit to work as a coal tester only on limited duties with some restrictions on use of heavy equipment involved in his job.
Mr Garry Darlington is constitutionally prone to musculo‑fascitis which is aggravated by continued use and activities involving heavy use of his hands and arms. On clinical assessment he was considered to have 10% loss of efficient use of his right arm below the elbow considering the arm as a whole and 15% loss of efficient use of his left arm above the elbow considering the left arms as a whole. He also suffers from 10% loss of efficient use of his neck. All his disabilities are of a permanent nature and are work related working as a Coal tester with Cargo Superintendent Company. [emphasis added]
From the commencement of my employment with the respondent I have had direct knowledge of the obligations of employers under the Occupational Health and Safety Act 1983 (NSW) to provide a safe system of work. I was also aware that liability under this legislation is strict and the penalties imposed are significant. The inherent nature of the applicant’s employment is that a substantial proportion of the applicant’s work is repetitive heavy labour involving lifting shovels and buckets. The potential for injury if safe systems of work are not followed is accordingly high. For this reason, the changes listed in paragraph 33 above were implemented by the respondent. Despite making these changes, it was apparent to me from the reports of Dr Puri referred to above, that the applicant has in fact sustained injury during the course of his employment as a coal sampler and that his current employment with the respondent may be aggravating (potentially permanently) his injury and affecting his ability to perform his pre-injury duties. By reason of the injury, he continues to receive workers’ compensation payments. His medical prognosis is that his injury is of a chronic and ongoing nature which renders him susceptible to aggravation of the injury by his work as a coal sampler.
It is for the reasons detailed above, reasons reinforced by my close involvement with the applicant’s progress since 1995, that I had a conversation with the applicant in May 1998 to the following effect:
I said: “Since your condition is not improving and is in fact deteriorating, we do not wish to place you in jeopardy of sustaining further injury and you will only be asked to work one shift per week. When you have obtained a medical clearance to continue to work more than one shift per week, we can review your position.”
At the time, the applicant did not respond.
Given the applicant’s susceptibility to injury and the respondent’s strict obligations under occupational health and safety legislation, I considered that the respondent should reduce the applicant’s shifts to diminish the risk of further injury until the applicant could obtain a medical clearance.
The legislation
The manner in which the claim has been presented on behalf of the applicant has altered somewhat over time. Ultimately, before me, the case is put as a case involving a breach of s.15(2) of the DDA, in particular paragraphs (a) and (d).
Section 15(2) of the DDA provides as follows:
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Section 5 of the DDA establishes what is discrimination. For the purposes of the Act, a person discriminates against another person on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
Consideration and findings
There is no dispute that in mid May 1998 the respondent took a decision to restrict the applicant’s hours of employment to one shift per week. The dispute between the parties is whether that action constituted unlawful discrimination under the DDA. The applicant relies on the decision of the NSW Administrative Decisions Tribunal in Higginson v Cargill Australia Limited [2001] NSWADT 152 under state anti-discrimination legislation indistinguishable from the DDA. The facts in that case are similar to the present. The ADT found that the employer unlawfully discriminated against the applicant by refusing to allow the applicant to return to normal duties on account of his disability. The applicant distinguishes French v Sydney Turf Club Ltd (No 2) (unreported, 11 June 2002, NSWADT). In that case the applicant failed on the basis that the employer had taken steps necessary to comply with its occupational health and safety obligations. I was also referred by Ms Eastman to the Victorian case of Hooper v Victoria (2001) CHRR Doc 01-098 as establishing that an employer does not have to take special measures to “accommodate” a disabled employee. I was referred to other authority concerning the inherent requirements of a job, but that proved to be irrelevant to the case as framed by the applicant before me. Another case deserving mention, which was not referred to by either party, was the decision of this Court in Arrah v P& O Catering Services Pty Ltd [2002] FMCA 27. In that case the applicant unsuccessfully claimed that he had been passed over for promotion due to his carpal tunnel syndrome.
The respondent asserts, through Mr Condie, that the respondent’s decision to restrict the applicant’s hours of work was taken and maintained as a legitimate response to the risk that the applicant might aggravate his existing injury. Mr Wilkins suggests, on behalf of the applicant, that the decision was in fact taken in order to punish the applicant, either for making a worker’s compensation claim or, alternatively or in addition, to punish him for refusing to give up the weekly compensation that he was receiving for unworked overtime.
An apparent difficulty for the applicant is that he has no direct evidence to establish a malicious motive for the action taken by the respondent. That motive, if it can be found at all, can only be adduced by implication from surrounding circumstances. Those circumstances are that the applicant had made a claim for worker’s compensation which was initially resisted by the respondent but ultimately the respondent agreed to a consent award. The respondent had set up a lengthy rehabilitation programme for the applicant with the obvious objective of enabling him to resume full duties, including overtime, which would allow the consent award to be suspended or vacated. The applicant completed the rehabilitation programme and was assessed to be fit to undertake “normal duties” and he did purportedly undertake “normal duties” for about 12 months before he became a casual employee and had his hours reduced. However, the duties undertaken by the applicant were not normal in that he was still receiving compensation for unworked overtime and continued to maintain that he was unable to work on weekends and double shifts. The respondent had become aware that the applicant had been doing casual work as a backhoe operator on weekends and may have formed the view that the applicant’s objection to working overtime, in particular on weekends, was not properly based on a medical concern. In the circumstances, it might be suspected that the motivation of the respondent in reducing the hours of the applicant was not as benign as is claimed by the respondent. The applicant was told by Mr Condie that he would get more work when he produced a medical certificate which cleared him for “normal duties”, which would include overtime. Producing such a medical clearance would obviously imperil the continued receipt of worker’s compensation by the applicant. This may have been intended by the respondent to flush out the applicant as to his true medical condition. In the event, the two medical reports produced by the applicant from Dr Puri did not provide the medical clearance invited by the respondent but rather pointed to a deteriorating medical condition.
The circumstances surrounding these events puts the applicant in a delicate position in these proceedings. It is obviously not in his interests to assert that he was not suffering from a disability at the time his working hours were reduced. However, if he was suffering from a disability, the explanation for the action taken by the respondent gains credence. There is ample evidence that the applicant was suffering from a disability at the time he sought the worker’s compensation award and underwent the rehabilitation programme. There is evidence that the disability may have been resolved by the time that rehabilitation programme was completed, but the medical opinions by Dr Puri contradict that. I find that the applicant was suffering from a disability for the purposes of the DDA at all material times.
Mr Wilkins took an ambivalent attitude to the evidence of Mr Condie. On the one hand, he submitted to me that I should treat Mr Condie’s evidence as truthful. On the other hand, he suggested an ulterior motive for the action taken by the respondent. He submitted also that the applicant contested Mr Condie’s evidence about the conversation the two allegedly had set out at paragraph 62 of Mr Condie’s affidavit. Mr Hamill, under cross-examination (transcript, page 98), corroborated the reason advanced by Mr Condie for the reduction in the applicant’s shifts. I find that the evidence of Mr Condie should be accepted as truthful. I accept the reason advanced by the respondent as the true reason for the reduction in the applicant’s working hours. That however, does not mean that the reason was well founded. Even where the respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory: Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 359.
I accept that the applicant had complained to Mr Condie about continuing problems with his hands when asked about his ability to undertake overtime work. I also find that the applicant had placed restrictions on his availability to undertake casual work by informing the respondent that he was unavailable for work double shifts or on weekends. The question nevertheless remains whether the restriction imposed by the respondent was reasonable, and based on a proper medical assessment of the applicant’s condition.
In order to succeed in his claim the applicant must establish that he was treated less favourably than other persons who can be put up as a proper comparator. The respondent does not dispute that there were other casual employees working over the same period as the applicant who received more shift work. However, Ms Eastman has disputed that the treatment of the applicant was less favourable on two bases: first, that the other employees are not clearly established as an appropriate comparator and secondly, that the applicant was in fact treated more favourably as the respondent was taking a special measure to protect the applicant from further injury.
It is true that casual employees for the respondent were not entitled to receive any particular number of hours work in any given period and that the respondent required flexibility in utilising the services of casual employees when work needed to be done. Nevertheless, there is no real doubt that the applicant received less work than other casual employees doing the same work over the relevant period. The real question is whether the restriction on the applicant’s working hours should be seen as a detriment. A detriment means any treatment that was unjust, adverse or prejudicial: Ministry of Defence v Jeremiah [1980] 1 QB 87 at 94. To the extent that the applicant was deprived of income that he had a capacity to earn with safety then he was subjected to a detriment. However, to the extent that the applicant was protected from aggravating an injury that would imperil his capacity to work at all he was not subjected to a detriment.
At the time the decision was taken to restrict the applicant’s hours in mid May 1998 the medical evidence available to the respondent indicated that the applicant was fit for normal duties. The only countervailing factor were the oral complaints made by the applicant about his hands. These complaints were prompted by Mr Condie’s enquiries about the capacity of the applicant to work overtime and there was, in my view, nothing in them to support a conclusion that the applicant was unfit to perform the duties that he had been performing up to May 1998. The respondent had duties under occupational health and safety legislation not to expose the applicant to an unacceptable risk of aggravating his injury and the respondent was entitled to take reasonable steps to protect itself from incurring a further worker’s compensation liability. However, the action taken by the respondent in mid May 1998 to reduce the applicant’s hours was both pre-emptive and paternalistic. There was not, at that time, a proper basis for the respondent to conclude that it would be unsafe to permit the applicant to continue working the number of hours he had been working for approximately 12 months.
There is no doubt that the action taken by the respondent was taken by reason of the disability suffered by the applicant. At the time the decision was taken the applicant had established a capacity to work up to 40 hours per week and, despite the applicant’s grumbling, there was no reliable medical opinion to justify the risk assessment made by the respondent at that time.
I find that the respondent unlawfully discriminated against the applicant by reducing his hours of employment on account of his disability on or about 15 May 1998.
The situation changed on 1 June 1998 when Dr Puri produced his further medical report. That report indicated a deterioration in the applicant’s medical condition. The report would have provided an acceptable foundation for the decision taken by the respondent, if it had been taken at that time. Further relevant medical evidence was provided by Dr Puri in his further report of 9 June 1999. I find that it was a reasonable protective measure for the respondent to restrict the hours of employment of the applicant to one shift per week on and from 1 June 1998.
It follows that the applicant was subjected to a detriment for only two weeks between 15 May 1998 and 31 May 1998. The unlawful discrimination against him is limited to that period and he is only entitled to an assessment of damages in respect of that period. The applicant seeks the difference between the salary he would have earned if he had been working five shifts per week and the salary he in fact earned working only one shift per week. There was no guarantee that the applicant would receive five shifts per week in any event but I accept his evidence that he had been working up to five shifts per week before his hours were reduced. I am prepared to accept that he could have expected to work five shifts per week in the relevant fortnight had he been permitted to do so. The additional work would have been worth between $160 and $200 per day. I find that the applicant has lost $180 per day for eight days. I have no evidence to establish that the applicant derived other income from his backhoe operations over that particular period. He should therefore receive damages of $1,140 for economic loss.
The applicant also claims general damages for non economic loss. Mr Wilkins submitted that an award of between $15,000 and $25,000 is called for, based on the report from Mr Wenzell that the applicant had suffered from clinical depression following the reduction in his working hours, as well as assertions of general frustration and humiliation experienced by the applicant as a result of being prevented from working. I have decided to make no award for general damages. Mr Wenzell did not see the applicant until after the applicant’s psychological condition had apparently resolved itself, and he was reliant upon the history given to him. The report from Dr Davis relied upon by the respondent in addition casts serious doubt on the opinion of Mr Wenzell. Further, the applicant made no complaint about the reduction in his hours of work until 1999, at which time there was a proper medical basis for the action taken by the respondent. I accept that the applicant would have been upset and concerned about his inability to work, but I am unable to relate that to the action taken by the respondent between 15 May 1998 and 31 May 1998.
In addition to damages for economic loss, the applicant is entitled to receive interest up to judgment at a reasonable commercial rate. I have previously applied a pre-judgment interest rate in human rights proceedings of 9.5 per cent and I will apply that rate in this matter. The applicant is entitled to receive pre-judgment interest at the rate of 9.5 per cent from the date when his cause of action arose on 15 May 1998 until the date on which judgment is entered in these proceedings.
I will give the parties liberty to apply for an order as to costs within 28 days.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 September 2002
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