Devers v Kindilan Society

Case [2009] FCA 1392

FEDERAL COURT OF AUSTRALIA

Devers v Kindilan Society [2009] FCA 1392

HUMAN RIGHTS – discrimination – hearing disability – alleged indirect discrimination of applicant contrary to ss 6 and 15 of Disability Discrimination Act 1992 (Cth) – whether respondent imposed requirement or condition that applicant perform employment without the assistance of flashing lights or telephone typewriter – requirement or condition that applicant attend training sessions and staff meetings without qualified interpreters – whether applicant able to comply with requirements or conditions – applicant failed to show requirements or conditions not reasonable

HUMAN RIGHTS – discrimination – hearing disability – alleged direct discrimination of applicant contrary to ss 5 and 15 of Disability Discrimination Act 1992 (Cth) – whether less favourable treatment of applicant – no less favourable treatment shown – treatment not the result of applicant’s disability

Disability Discrimination Act 1992 (Cth) ss 5, 6, 15
Human Rights and Equal Opportunity Commission Act1986 (Cth) s 46PO(1)
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 3(1), 6(2)

Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008)

Jones v Dunkel (1959) 101 CLR 298 cited
Watersv Public Transport Corporation (1991) 173 CLR 349 referred to
Catholic Education Office v Clarke (2004) 138 FCR 121 referred to
Australian Iron and Steel Proprietary Limited v Banovic (1989) 168 CLR 165 referred to
Hurst v Queensland (2006) 151 FCR 562 referred to
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 distinguished
Nulyarimma v Thompson (1999) 96 FCR 153 referred to
Purvis v State of New South Wales (2003) 217 CLR 92 applied
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 applied
Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883 cited
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 applied

JANE DEVERS v KINDILAN SOCIETY (ACN 004 947 782)

VID 693 of 2008

MARSHALL J
27 NOVEMBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 693 of 2008
BETWEEN:

JANE DEVERS
Applicant
AND:

KINDILAN SOCIETY (ACN 004 947 782)
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

27 NOVEMBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs of the proceeding, including reserved costs.

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


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 693 of 2008
BETWEEN:

JANE DEVERS
Applicant
AND:

KINDILAN SOCIETY (ACN 004 947 782)
Respondent

JUDGE:

MARSHALL J

DATE:

27 NOVEMBER 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant, Jane Devers, brings this application pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act1986 (Cth), following the termination of her complaint to the Human Rights and Equal Opportunity…

Continue reading Devers v Kindilan Society

Sign in free to access the full text

Details
AGLC
Devers v Kindilan Society [2009] FCA 1392
Case
[2009] FCA 1392
Decision Date

CaseChat Overview and Summary

Devers v Kindilan Society involves a claim by Ms Devers that she was discriminated against by her employer, Focus, due to her disability, specifically profound deafness, in contravention of the Disability Discrimination Act 1992 (Cth). The case was heard by the Federal Court of Australia, where Ms Devers alleged various instances of discrimination in her employment from September 2003 to October 2008. Ms Devers claimed that she was not provided with necessary workplace adjustments such as interpreters and special equipment, and that she faced restrictions on her employment opportunities and conditions.

The central legal issues in this case were whether Ms Devers had established that Focus had directly or indirectly discriminated against her on the basis of her disability, and whether Focus had failed to make reasonable adjustments to accommodate her disability in the workplace. Ms Devers sought various remedies, including reinstatement, damages, and injunctive relief against further discrimination, although she conceded that some of these remedies were no longer relevant given the closure of the facility in question.

The Court considered the evidence presented and found that Ms Devers had not convincingly demonstrated that she faced less favourable treatment or restrictions due to her disability. The Court preferred the evidence of other witnesses over Ms Devers on several points, finding her testimony inconsistent and lacking in clarity. As a result, the Court concluded that Ms Devers had failed to establish any discriminatory conduct by Focus. Consequently, the Court dismissed the application and ordered that the applicant pay the respondent’s costs of the proceeding, including reserved costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the proceeding, including reserved costs.

Note:

Background

Background to the litigation

Ms Devers alleges that the respondent, trading as Focus (“Focus”), discriminated against her by reason of her disability in her employment with Focus from September 2003 to October 2008 in violation of ss 5, 6 and 15 of the Disability Discrimination Act1992 (Cth) (“the Act”). It is common ground that Focus is an employer for the purposes of the Act.BACKGROUND Ms Devers has profound deafness, a disability for the purposes of the Act; see s 4(1) of the Act. She is unable to hear or speak and communicates by means of Australian Sign Language (“Auslan”). Ms Devers has limited written English and limited lip-reading ability. The respondent is a not for profit organisation and a registered charity which provides services to people with disabilities. It provides residential services in Victoria’s Mornington Peninsula region. At all material times, Focus operated a Community Residential Unit (“CRU”) in Bungower Road, Mornington. Ms Devers was employed by Focus at the Bungower Road CRU as a Disability Support Worker. Focus is not a specialist organisation catering for hearing impaired people. Its clients are primarily individuals with intellectual disabilities. Some of its intellectually impaired clients have also been hearing impaired. At all relevant times, two clients at the Bungower Road CRU were profoundly deaf as well as having cerebral palsy and intellectual disabilities. Ms Devers worked closely with those clients, David and Leigh Travaglia. A third resident of the Bungower Road CRU was also unable to communicate verbally and had “extremely limited” sign language skills. A volunteer — then a casual Ms Devers commenced work as a volunteer at the Bungower Road CRU on 9 August 2003. Her engagement at the CRU was arranged by Ms Leanne Van Opijnen of SensWide, an employment service for people with hearing or visual disabilities. On 23 July 2003, Ms Van Opijnen and Ms Devers met with Mr Terry Guest, the then residential manager of Focus. Ms Van Opijnen, a qualified Auslan paraprofessional interpreter, interpreted at the meeting. As a result of the meeting, Focus offered Ms Devers one hour of volunteer work each Saturday. Ms Devers gave evidence that, at the meeting, Ms Van Opijnen explained to Mr Guest “that interpreters needed to be provided” and raised the issue of the provision of special equipment, such as a telephone typewriter (“TTY”). Mr Guest stated that Ms Devers was able to perform her role as a volunteer without the assistance of a qualified interpreter and that nothing to the contrary was said by either Ms Devers or Ms Van Opijnen at the 23 July 2003 meeting. Mr Guest also gave evidence that he was not aware, following the meeting, that Ms Devers required a qualified interpreter for meetings. He said that “[t]here was no discussion” of equipment such as TTYs and flashing lights at the meeting. I am satisfied that the evidence discloses that Ms Devers’s needs in the workplace were not discussed at the 23 July 2003 meeting. Ms Van Opijnen testified that she had no specific recollection of discussing such matters and her case progress notes confirm this. I reject Ms Devers’s evidence, in cross-examination, that the provision of equipment was discussed at the 23 July 2003 meeting. That evidence is inconsistent with the evidence of Mr Guest and Ms Van Opijnen. Ms Devers appears to have been confused about the topics discussed at the two meetings that Ms Van Opijnen attended with Focus representatives, one on 23 July 2003 and one which occurred later during her employment. This type of confusion was present in much of Ms Devers’s evidence. Generally, where there are conflicting accounts of events, I have preferred the evidence of other witnesses to that of Ms Devers.

Evidence

Evidence Before The Court

Ms Devers initially sought the following remedies in her amended statement of claim:(a)A declaration that the Respondent has discriminated against the Applicant since March 2003;(b)The Applicant be reinstated to her position at the Community Residential Unit;(c)An order forbidding the Respondent from discriminating against the Applicant;(d)An order that the Respondent provide qualified interpreters for all professional development, training opportunities and meetings;(e)An order that the Respondent allow the access code to the spare key of the Community Residential Unit be given to the Applicant;(f)An order that the Applicant receive the same opportunities as hearing staff do to fill shifts;(g)An order that the Applicant be allowed to work sleep over shifts;(h)An order that the Applicant be allowed to drive the bus in all situations that hearing staff do;(i)Damages;(j) Costs.Ms Devers concedes in her submissions that, as Focus no longer operates the Bungower Road CRU, “many of the remedies previously sought are no longer relevant”. It is not necessary at present to say anything further about the relief sought.SUBMISSIONS ON THE EVIDENCE Ms Devers’s submissions relied on Jones v Dunkel (1959) 101 CLR 298 to suggest that her evidence should be accepted uncritically on several issues. Many of the issues which her counsel referred to were ones on which Focus called evidence from its witnesses. As counsel for Focus observed, the principle in Jones v Dunkel will not assist in the creation of evidence, merely the drawing of inferences where this is supported by Ms Devers’s evidence. The evidence before the Court on the relevant issues raised by Ms Devers’s application does not lead to the application of Jones v Dunkel, as there is nothing to suggest that Focus failed to called evidence on any matters of material significance from witnesses it would have been expected to call.STATUTORY FRAMEWORK The Act renders unlawful conduct which constitutes discrimination on the ground of disability in the context of employment. At all material times, s 15 of the Act relevantly provided:(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:(a)in the arrangements made for the purpose of determining who should be offered employment; or(b)in determining who should be offered employment; or(c)in the terms or conditions on which employment is offered.(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:(a)in the terms or conditions of employment that the employer affords the employee; or(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or(c)by dismissing the employee; or(d)by subjecting the employee to any other detriment.

Decision

Reasons for decision

MARSHALL J
As the less favourable treatment or restrictions cannot be identified with any degree of precision or clarity this claim also fails.CONCLUSION Ms Devers has not succeeded in establishing any direct or indirect discrimination by Focus. The application is dismissed. There are no special or unusual circumstances in this proceeding which dictate that costs should not follow the event; see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.