Delaney v Director-General, NSW Department of Health

[2009] NSWADT 148

CITATION:	Delaney v Director-General, NSW Department of Health [2009] NSWADT 148
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Danielle Delaney RESPONDENT Director-General, NSW Department of Health
FILE NUMBER:	081048
HEARING DATES:	24 and 25 November 2008
SUBMISSIONS CLOSED:	25 November 2008
DATE OF DECISION:	18 June 2009
BEFORE:	Britton A - Deputy President; Weule B - Non-Judicial Member; Hiffernan N - Non-Judicial Member
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth) Health Services Act 1997 (NSW) Public Sector Employment and Management Act 2002 (NSW) Transferred Officers Extended Leave Act 1961 (NSW). Public Sector Employment and Management Amendment (Extended Leave) Act 2005 (NSW)
CASES CITED:	Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 Purvis v New South Wales (2003) 217 CLR 92 St Joseph’s Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4
REPRESENTATION:	APPLICANT K Edwards, barrister RESPONDENT K Eastman, barrister
ORDERS:	Complaint dismissed

1 On the birth of her first child in 2007, Dr Danielle Delaney applied for paid maternity leave to her employer, the Director-General of the Department of Health. Her application was refused. Dr Delaney contends that this refusal constitutes unlawful discrimination on the ground of sex in the area of employment. The Director-General disagrees and claims that leave was not granted because Dr Delaney had not completed 40 weeks continuos service in NSW — the eligibility requirement for paid maternity leave prescribed by the Award under which she was employed.

2 By 2007 Dr Delaney had been employed in public hospitals throughout Australia for close to a decade and for six years as an employee of the NSW Department of Health.

Accreditation of surgeons in Australia

3 A brief outline of Dr Delaney’s employment history and the rules regarding accreditation of surgeons in Australia is necessary to put the parties’ submissions in context.

4 In Australia, specialist medical colleges are responsible for the organisation of training and accreditation of doctors seeking to become medical specialists.

5 The Royal Australasian College of Surgeons (RACS) is responsible for among other things, the selection and training of doctors wishing to become specialists in the area of surgery. Doctors who successfully complete RACS training are awarded a Fellowship of RACS. The following is a broad outline of the training requirements imposed by RACS throughout the period Dr Delaney trained to become a fellow (2002 to 2008).

6 Urology is one of nine sub-specialties represented by RACS. A RACS committee, the Board of Urology, is responsible for administering training in the area of urology.

7 In 2003, a doctor seeking accreditation from RACS in the area of urological surgery was required, among other things, to:

Undertake Basic Surgical Training approved by RACS

Undertake three years Advanced Surgical Training approved by the Board of Urology

Complete a fellowship year in a post they had selected and had been approved by the Board of Urology.

8 Upon successful completion of their Basic Surgical Training, trainees were offered a position nominated by the Board to undertake Advanced Surgical Training. Positions were allocated on the basis of the trainee’s preference and their rank, determined by the Board on the basis of examination performance.

9 After successful completion of Advanced Surgical Training, trainees were required to complete a fellowship year. The Board required that that post be undertaken in a different state to the state where they had undertaken Advanced Training.

Dr Delaney’s employment history

10 In 1998 after graduating with a Bachelor of Medicine from the University of Sydney, Dr Delaney was registered as a medical practitioner in New South Wales. She commenced work that year as an intern at the Prince of Wales Hospital. From 1999 to 2003, she worked as a resident and then a registrar in various public hospitals in Sydney and in regional centres (Tweed Heads and Lismore) and at all times was employed by the NSW Department of Health. During this period she completed RACS’ Basic Surgical Training.

11 In May 2003, Dr Delaney applied for admission to Advanced Training in Urological Surgery with the College of Surgeons. In August 2003, she was offered a place in Advanced Training in Urological Surgery.

12 Dr Delaney expressed a preference to undertake her training in NSW. Nineteen training places were available in Australasia, two in NSW. The two NSW positions were allocated to trainees who had been ranked above Dr Delaney. Dr Delaney accepted a training post in Victoria, her second preference. In January 2004 she resigned from her position at Prince of Wales Hospital to take up that post.

13 It is common ground that had Dr Delaney rejected the offer to undertake her Advanced Training in Victoria, she would have not been unable to continue her training and, as a consequence, ineligible for Fellowship of RACS.

14 The Victorian section of the Board of Urology, whose jurisdiction included Tasmania, was responsible for Dr Delaney’s placement and training throughout the period she undertook her Advanced Training. The Section decided that Dr Delaney’s posting should commence in Royal Hobart Hospital where she worked for about 12 months.

15 In January 2005, again at the direction of the Victoria section, Dr Delaney was posted to St Vincent’s Hospital Melbourne where she worked for about a year. In January 2006 she was allocated a training position at the Monash Medical Centre in Melbourne.

16 In mid-2006 Dr Delaney passed the RAC’s Fellowship exam. She was then required to undertake 12 months work in a Fellowship post. As noted, the Board mandated that this post be undertaken outside the state where Dr Delaney had completed her Advanced Training.

17 According to Dr Delaney the only suitable Fellowship positions in her area of interest, paediatrics, were in NSW and Victoria. As it was not open to her to complete her fellowship year in Victoria, she was obliged to apply for a position in NSW. She successfully applied for a twelve-month position in the urology department at the Sydney Children’s Hospital.

18 On 4 February 2007, Dr Delaney ceased her employment with Monash Medical Centre in Victoria and a week later commenced at the Sydney Children’s Hospital, which was operated by the South Eastern Sydney and Illawarra Health Service (the Area Health Service), the respondent in these proceedings. Her baby was born in October 2007.

19 For the three years prior to commencing at the Children’s Hospital, 17 January 2004 to 8 February 2007, Dr Delaney was not employed by the Area Health Service.

Award and legislative provisions governing maternity leave

20 Dr Delaney’s employment with the Area Health Service was governed by the provisions of the Public Hospital Medical Officers Award 2005 (the Award), the Health Services Act 1997 (NSW) (HS Act) and the Public Sector Employment and Management Act 2002 (NSW) (PSEM Act).

21 Under the Award an employee who has completed at least 40 weeks continuous service prior to the expected date of birth of their child is entitled to 14 weeks paid leave calculated on their ordinary rate of pay: cl. 15A(i) & (iii).

22 Where there has been a break in service and an employee who once qualified for maternity leave is re-employed or reappointed after resignation, they will not qualify for maternity leave until they have completed a further 40 weeks continuous service: cl. 15A(i)(a).

23 The Award provides that ‘continuous service with an organisation that is part of the public sector service as defined in the PSEM Act’ can be taken into account in determining eligibility for paid maternity leave: cl. 15A(ii). The PSEM Act defines ‘public sector service’ to mean any of the following:

(a) the Government Service, [defined to mean the Government Service of New South Wales –see s 4A of the PSEM Act.]

(b) the Teaching Service,

(c) the NSW Police Force,

(d) the NSW Health Service,

(e) the service of either House of Parliament, or the President or Speaker, or the President and the Speaker jointly,

(f) any other service of the Crown,

(g) the service of any other person or body constituted by or under an Act or exercising public functions (such as a State owned corporation), being a person or body that is prescribed, or that is of a class prescribed, for the purposes of this definition.

24 As is apparent the above definition does not include service with an interstate or commonwealth public sector agency.

25 The maternity leave provisions under the Award are also subject to s 93 of the PSEM Act which provides that Division 2 (Cross-sector public sector leave arrangements) of Part 3.2 (Staff Mobility) of Chapter 3 ‘has effect despite any provision of any State industrial instrument’. Section 97 is contained in that Division and provides:

97 Maternity leave etc

(1) This section applies for the purposes of determining whether an employee who ceases to be employed in a public sector service and immediately commences employment in another public sector service is entitled to maternity leave, partner leave, adoption leave or any other leave (other than extended leave) for which a condition of eligibility is a minimum period of service.

(2) For the purposes of determining an employee’s entitlement to leave referred to in this section:

(a) service with the employee’s previous employer is taken to be service with the employee’s current employer, if the previous employment was in another public sector service and if that period of service was continuous with the employee’s current employment, and

(b) service with any other former employers is taken to be service with the person’s current employer, if the service was in other public sector services and the periods of service with those bodies were continuous with each other and the employee’s previous employment in a public sector service.

(3) Except as provided by this section, the eligibility of an employee for leave referred to in this section is to be determined in accordance with the conditions applying to that leave in the employee’s current employment.

(4) A reference in this section to service with a previous or former employer extends to include a reference to any such service before the commencement of this section.

(5) This section is taken to have applied on and from 3 May 1993.

[Emphasis added]

26 In short, s 97 of the PSEM Act allows an employee who ceases work with one public sector service and commences immediately with another, to count service with the former towards their qualifying service for maternity leave. It relies on the same definition of ‘public sector service’ employed by cl. 15 of Award as set out above (s 4 of the PSEM Act). Accordingly, service with any NSW public sector agency counts towards qualifying service for maternity leave, but public sector service outside NSW does not.

Long service leave

27 Under the Award an employee who has completed 10 years continuous service is entitled to two months long service leave on full pay: cl 17(i)(a). In contrast to maternity leave, the Award recognises interstate public sector service for the purpose of determining an employee’s eligibility to long service leave.

28 The Award defines ‘service’ to mean ‘continuous service in one or more hospitals’: cl 17(ii)(a). ‘Hospital’ means a NSW public hospital: cl 1. ‘Continuous service’ is given the same meaning as that given by the Transferred Officers Extended Leave Act 1961 (NSW): cl 17(ii)(a) of the Award. That Act was repealed on the commencement of s 5(1) of the Public Sector Employment and Management Amendment (Extended Leave) Act 2005 on 1 January 2006.

29 As a consequence of amendments to the PSEM Act, made by the Public Sector Employment and Management Amendment (Extended Leave) Act, the recognition of prior government service for the purpose of calculating ‘extended leave entitlements’ is governed by Schedule 3A of the PSEM Act. (The PSEM Act refers to ‘long service leave’ as ‘extended leave’.) Clause 6 of Schedule 3A provides:

6 Recognition of former government service

(1) For the purpose of calculating a public sector employee’s extended leave entitlement, the public sector employee’s service with his or her current employer is taken to include his or her recognised service.

(2) The person’s employment in a public sector agency or a Commonwealth or interstate agency (the former agency) is recognised service in relation to the person’s subsequent employment in a public sector agency (the current agency) if:

(a) the period of employment in the former agency has been continuous, and

(b) either:

(i) the person’s employment in the current agency has immediately followed the person’s employment in the former agency, or

(ii) the person is entitled, by law or administrative practice, to have the service in the former agency form part of the service in the current agency for the purpose of calculating the person’s extended leave entitlement.

(3) A period of recognised service may not be counted more than once for the purpose of calculating the person’s extended leave entitlement.

Dr Delaney’s entitlement to maternity leave

30 By the combined effect of the Award and the PSEM Act, only service in the NSW public sector after Dr Delaney’s started at the Sydney Children Hospital counted as ‘continuous service’ for the purpose of determining her eligibility for maternity leave. Her employment with the Area Health Service between 1999 and 2003 could not be taken into account because of the intervening period of employment in Victoria and Tasmania. Accordingly as at the expected birth of her daughter, Dr Delaney was five weeks short of being eligible for paid maternity leave having completed only 35 weeks continuous service in the NSW public sector.

31 Had the more generous rules relating to eligibility for long service leave applied, Dr Delaney would have qualified for maternity leave as her Victorian service would be taken into account, as it immediately preceded her employment with the Area Health Service.

Other forms of paid leave

32 In addition to long service and maternity leave a number of other forms of paid leave with a service requirement are provided for under the Award. These include adoption, parental and sick leave.

33 The eligibility requirements for adoption and parental leave mirror those applicable to paid maternity leave.

34 In contrast the eligibility requirements for sick leave mirror those applicable to long service leave. That is, service with interstate and Commonwealth public sector agencies, is recognised.

Unpaid maternity leave

35 Under the Award an employee who is ineligible for paid maternity leave is eligible for unpaid maternity leave of up to 12 months. An employee who is eligible for paid maternity leave is also entitled to 12 months unpaid leave.

Does the denial of paid maternity leave constitute unlawful sex discrimination?

36 Dr Delaney asserts that the Area Health Service’s decision to deny her paid maternity leave, or, in the alternative, its failure to apply the more generous definition of ‘continuity of service’ that applied to long service leave, constitutes unlawful discrimination on the grounds of sex, (s 25(2) of the Anti-Discrimination Act 1977 (the Act)).

37 To succeed in her complaint which is cast as an allegation of ‘direct discrimination’ (s 24(1)(a) of the Act), Dr Delaney must, establish, on the balance of probabilities:

First, that the offending conduct fell within one or more of the substantive provisions of the Act (s 25(2))

Second, that she was treated less favourably than a man in the same circumstances or circumstances which are not materially different to her circumstances (less favourable treatment)

Third, that one of the reasons for any less favourable treatment was because she is a woman (causation).

Less favourable treatment

38 Section 25(2) requires Dr Delaney’s treatment to be compared with that which was, or would be, afforded a man in the same, or not materially different circumstances, to Dr Delaney.

39 Central to this task is the identification of the relevant circumstances. The majority in Purvis v New South Wales (2003) 217 CLR 92 (at 160, 161) described the approach to be taken, in this way:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. …

40 The comparator It is agreed that a hypothetical comparator should be employed, namely a male doctor employed under the Award with a similar employment history to Dr Delaney’s.

41 Relevant circumstances It is apparent that Dr Delaney’s treatment cannot be compared with that afforded to a comparator in the same circumstances to hers for the simple reason, that men are ineligible for maternity leave. Accordingly it is necessary to identify those circumstances which can be said to be ‘not materially different’ to Dr Delaney’s. She nominates the making of an application for long service leave; the Area Health Service nominates the making of an application for paid parental leave.

42 Dr Delaney contends that the approach the Area Health Service urges the Tribunal to adopt applies an unduly narrow construction of the phrase ‘or in circumstances which are not materially different’ contained in s 24(1)(a) of the Act. That approach, she argues, is inconsistent with the remedial character of the legislation.

43 Relying on the New Shorter Oxford English Dictionary definition of the word, ‘material’ — ‘serious, important or of consequence; pertinent, relevant …having logical connection with the facts in issue’ — Dr Delaney contends that the proper meaning to be given to the phrase ‘materially different’ is ‘serious, important or relevant difference’.

44 Dr Delaney contends that in deciding whether she was subject to less favourable treatment, the Tribunal can compare her treatment with that which would be afforded to an employee applying for any other form of extended leave available under the Award, such as study or long service leave and is not restricted, as the Area Health Service contends, to parental type leave. She argues that this approach is open to the Tribunal as it is the taking of the leave not the reason for taking it, that is the relevant circumstance, citing in support the following passage from Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 (at [73]):

In our view, the respondent would not have treated an employee who took substantial amounts of family and community services leave, maternity leave, study leave or leave without pay to which they were entitled, as unfavourably as it treated Mr Mooney.

45 She points out that Mooney was not disturbed on appeal: Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67.

46 Findings and conclusions Whether less favourable treatment is established turns on the identification of the relevant circumstances in which the hypothetical male doctor should be placed.

47 We accept the argument put for the Area Health Service that in this case the making of an application for paid parental leave is not a materially different circumstance to the making of an application for paid maternity leave. Among other things, both types of leave are governed by the same eligibility requirement: 40 weeks ‘continuous service’ which cannot include prior service with a Commonwealth or interstate public sector agency. It is apparent that a male doctor with Dr Delaney’s employment history, who applied for paid parental leave, would, also be refused leave for failure to satisfy the 40-week NSW service requirement. Accordingly if the ‘relevant circumstances’ are accepted to be the making of an application for paid parental leave, less favourable treatment cannot be established.

48 However this is not fatal to Dr Delaney’s claim providing that the taking of another form of leave, accepted as being relevantly similar can be identified. It is trite to state that a person claiming ‘direct’ discrimination need not establish that they have been treated less favourably than a person without their protected characteristic (in this case, sex) in all circumstances that are ‘the same or not materially different’ to their own. A complainant need only establish less favourable treatment in respect of that afforded to a comparator in one set of circumstances that are the same or not materially different to their own.

49 Before considering whether the making of an application for long service leave constitutes a comparable circumstance, it is necessary to consider Dr Delaney’s submissions concerning Mooney v Commissioner of Police, New South Wales Police Service.

50 Mr Mooney, an employee of the NSW Police Service, suffered from a number of medical conditions. As a consequence, from time to time, he took what the Tribunal characterised as a ‘substantial’ amount of sick leave. There was no issue that he had an entitlement to that leave. Mr Mooney was counselled on several occasions and told that his sick leave record was ‘unsatisfactory’ and that adverse consequences may follow if that record continued. He was eventually forced to resign. Mr Mooney argued that he was subjected to this mistreatment because of his disability, or more correctly a characteristic of his disability, namely the tendency to require substantial amounts of sick leave.

51 The Tribunal compared Mr Mooney’s treatment with the treatment that would be given to a hypothetical employee who also took a substantial amount of leave, but of a type other than sick leave. The Tribunal found that a comparable employee taking study or maternity leave, would not have been subjected to the adverse treatment afforded Mr Mooney. It was on that basis that the Tribunal made a finding of less favourable treatment. The complaint was substantiated. The Tribunal’s decision was upheld on appeal. (Mooney was decided before Purvis. The Appeal was argued before Purvis but the decision handed down shortly after Purvis.)

52 Leaving aside the submission made for the Area Health Service that the Tribunal in Mooney employed an analysis rejected by the majority in Purvis, (i.e. by undertaking a comparison of Mr Mooney’s treatment where the characteristics of his disability had been ‘stripped out’), it seems to us that in any event Mooney does not support Dr Delaney’s argument. Mooney turned on the treatment afforded to an employee who had been absent from work over a substantial period. The Tribunal found the taking of substantial leave to be a relevant factor surrounding Mr Mooney’s treatment. It compared his treatment with a person who had also taken substantial leave but of a type other than sick leave.

53 Mooney is not authority for the proposition that there is no ‘material difference’ between different types of leave in an employment context. Whether different types of leave are comparable or ‘not materially different’ will depend on the question posed or the purpose for which the leave is to be compared.

54 As we understand the case put for Dr Delaney, the taking of long service and maternity leave are not materially different, as both require an assessment of ‘continuous service’, to determine eligibility. That argument is correct in so far as it goes, but ignores the disparate service requirements prescribed by the Award that apply to each, the very issue about which Dr Delaney complains. If, as accepted by Dr Delaney, the application of the eligibility criteria for maternity leave constitutes a relevant circumstance attending the decision to refuse her leave, it follows that the eligibility criteria for the type of leave the comparator is assumed to have applied for, must be the ‘same or not materially different’.

55 To compare Dr Delaney’s treatment with that which would be afforded to someone applying for long service is flawed, as those are materially different circumstances to Dr Delaney’s. Relevantly, different service requirement apply. As discussed, with some qualifications, public sector service outside NSW counts towards the qualifying period for long service leave but not maternity leave. Another material difference between the two types of leave is that eligibility for long service leave only arises after 10 years’ service (proportionate entitlement after seven years) whereas maternity leave is available after 40 weeks service. They are, in fact, different species of leave granted after different waiting times for different purposes.

56 While we accept that we are not required to compare Dr Delaney’s treatment with that which would be afforded a male doctor in the same circumstances, it must nonetheless be compared with treatment, which was or would be afforded to a comparator in ‘not materially different’ circumstances. The making of an application for maternity leave and long service leave, in our view, are relevantly and materially different.

57 In our opinion the question to be posed is: ‘How would the Area Health Service treat a male doctor who had applied for paid leave in circumstances where they did not satisfy the relevant service requirement imposed by the Award for that type of leave?’ The type of leave in our view need not be restricted to leave that is similar in nature to maternity leave, i.e. relates to the care of infant children, but could include any type of leave where a service requirement applied and this was not met. This is because it is the eligibility requirement, not the nature of the leave, which is the relevant circumstance in this case.

58 Attributing those circumstances to the hypothetical male doctor it is apparent that he, like Dr Delaney, would be denied leave. We note there is no evidence that the Area Health Service ‘bent the rules’ when applying the service requirements for other types of leave. Accordingly less favourable treatment is not established.

Causation

59 Given our finding on less favourable treatment it is not necessary to consider whether one of the reasons the Area Health Service refused Dr Delaney leave was because of her sex. However in case we are wrong in the interests of completeness we will address this issue.

60 Dr Delaney contends that the taking of maternity leave is a characteristic that appertains generally to women and accordingly is caught by the so-called ‘characteristic extension’ contained in the definition of sex discrimination: s 24(1A) of the Act. She argues the question to be posed is:

‘Whether the Area Health Service refused to grant her leave because of the nature of the leave she was seeking, namely maternity leave?’

61 Causation will be established providing that one of the reasons for the treatment, whether or not the dominant or substantial reason, is Dr Delaney’s sex, or a characteristic of her sex, the taking of maternity leave: s 4B of the Act. In Purvis v New South Wales, Gummow, Hayne and Heydon JJ (at 163) when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth) expressed the test to be applied in this way:

[W]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

62 As pointed out by Dr Delaney, the absence of any motive or intention on the part of the Hospital to discriminate against her is not determinative.

63 It goes without saying that there is a nexus between the offending decision and the type of leave Dr Delaney was seeking. ‘But for’ her application for maternity leave, leave would not have been refused. However as stated by McHugh and Kirby JJ in Purvis (at 143, 144) the ‘but for’ test is no longer the accepted test of causation in the context of anti-discrimination legislation. Accordingly it is not enough for Dr Delaney to establish that ‘but for’ her application the offending decision would not have been made. Nor is it sufficient that there is a nexus between the offending decision and the type of leave sought. The question to be asked is ‘Why was Dr Delaney treated in the way that she was?’ (See St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 at [55].)

64 In our view Dr Delaney was refused maternity leave because the Area Health Service had applied the provisions of the Award under which she was ineligible for leave because of her employment history. We are not satisfied that one of the reasons Dr Delaney was treated as she was, was ‘on the ground of’ the nature of the leave applied for.

65 Accordingly causation is not substantiated.

Summary

66 Given our findings on less favourable treatment and causation the complaint must be dismissed.

67 While the Area Health Service’s conduct has been found by us not to constitute unlawful discrimination, in our view it is inequitable that Dr Delaney found herself ineligible for maternity leave in her final year of training notwithstanding that she had been forced to go interstate to train, had worked for a large part of her career in NSW public hospitals and close to a decade in the Australian public health system and, had at all times expressed a clear preference to undertake her training in NSW. It seems to us that there is a case for the rules to be modified to allow a person in Dr Delaney’s position to qualify for maternity leave. This in our view would not only be fair but consistent with the underlying objective of the Anti-Discrimination Act of promoting equality of opportunity between all persons.