Duncan v Kembla Watertech Pty Ltd
[2011] NSWADT 176
•20 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 Hearing dates: 23 June 2011 Decision date: 20 July 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC - Judicial Member,
N Hiffernan - Non-Judicial Member
P Smith - Non-Judicial MemberDecision: The Tribunal orders that:
1.the complaint be dismissed in whole.
Catchwords: Disability Discrimination - Employment - Direct Discrimination Legislation Cited: Anti Discrimination Act 1977 (NSW) Cases Cited: IW v City of Perth (1997) 191 CLR 1
Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Purvis v State of New South Wales (2003) 217 CLR 92
Peck v Commissioner of Corrective Services [2002] NSWADT 122
X v Commonwealth of Australia (1999) 200 CLR 177Category: Principal judgment Parties: Jacqueline Carmel Duncan (Applicant) Representation: Counsel
Mr Moore (Respondent)
J Duncan (Applicant in person)
AFEI Legal Pty Ltd (Respondent)
File Number(s): 101105
REASONS FOR DECISION
EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, Noel Hiffernan - Non-Judicial Member and Philippa Smith - Non-Judicial Member): In this matter, the Applicant, Ms Duncan, alleges that she was unlawfully discriminated against on the ground of disability in relation to employment with the Respondent, Kembla Watertech Pty Ltd ( Kembla ), under s 49D of the Anti-Discrimination Act 1977 (NSW) (the ADA ).
Ms Duncan's case can be summarised as follows:
a) She was offered a job at Kembla by Mr Pleasance, the Central Division Manager of Kembla;
b)She accepted the job offer and she was given a starting date over the telephone and then by email;
c)Mr Pleasance terminated the job (or withdrew the offer) prior to her starting because of "perceived disability".
The reference to "perceived disability" is a reference to a disability that a person is thought to have, within s 49A(b) of the ADA.
Kembla's defence of the complaint was in substance that the offer of employment that Ms Duncan received was conditional upon her satisfactorily completing a pre-employment medical examination, even though a draft contract and a starting date were earlier provided to Ms Duncan. Ms Duncan's medical examination was not satisfactory. Thus, the condition to which the offer of employment was subject had not been fulfilled and the offer did not proceed. Kembla also challenged the notion that there was only a "perceived disability", arguing that, on the evidence, Ms Duncan did have a real disability. Further, s 49D(4)(a) of the ADA was relied upon to argue that any discrimination was not unlawful as Ms Duncan was unable to carry out the inherent requirements of the particular employment.
The Hearing and the Evidence
The hearing of the matter took place on 23 June 2011. At the hearing, Ms Duncan appeared for herself and Mr Moore of Counsel appeared for Kembla.
The evidence relied upon by Ms Duncan consisted of the report of the President of the Anti Discrimination Board (the ADB ) which included Ms Duncan's account of what occurred as set out in the ADB complaint form, as well as documents provided by Kembla to the Board.
In addition, Ms Duncan relied upon answers that she gave to questions in cross examination. She also submitted that her lack of disability was demonstrated by the way in which she was able to walk comfortably and unaided about the Tribunal hearing room during the hearing.
It is notable, however, that Ms Duncan did not seek to adduce any evidence from a medical practitioner in relation to whether or not she was relevantly disabled in any way.
Ms Duncan was cross examined. From the nature and content of her evidence and from the way in which she gave her evidence in the witness box, the Tribunal is of the view that Ms Duncan was genuinely seeking to assist the Tribunal with her recollection and was giving her honest evidence as to the truth, as she perceived it.
The Respondent, Kembla, relied upon a statement dated 4 May 2011 and signed by Mr John Pleasance, who was the Central Division Manager of Kembla, together with the annexures to that statement. Mr Pleasance verified the contents of that statement orally in the witness box subject to correcting the date in paragraph 28 of that statement.
In addition, evidence was adduced by Kembla by way of two statements by Mr Mark Papworth, who was the Safety Officer of Kembla. The statements were dated 4 May 2011 and 15 June 2011 and, subject to removing the attachment to the first statement which had been included by mistake, the statements were orally verified by Mr Papworth.
Mr Pleasance was cross examined as was Mr Papworth, although in the latter case, the cross examination was very short. Mr Pleasance impressed the Tribunal as a firm but careful witness who was prepared to concede that he might be mistaken as to the specific dates involved but who nonetheless maintained that he was not mistaken as to the sequence or substance of events. We accept that his evidence reflects the sequence and substance of what occurred.
Mr Papworth was not challenged as to any of his evidence and we would accept it.
Although there was some dispute during cross examination as to the dates and times at which various events occurred, we do not believe that there were many, if any, substantial areas of factual dispute which would be likely to affect the outcome of the matter.
The Job Offer
In early March 2010, Mr Pleasance was the Central Division Manager of Kembla and as such he had overall responsibility for the management of that Division which covered the whole of the State of New South Wales. At this time Mr Pleasance was seeking to fill the position of Community Relations Officer for his Division and he caused an advertisement to be placed on the internet using the website seek.com.au.
A summary description of the role and responsibilities of a Community Relations Officer or Community Relations Representative was given in a Kembla document as follows:
Primary Role
Ensure that all matters pertaining to customer relations for the SRP 2009/2012 Bulk Lining Contract are carried out in accordance with the Kembla Watertech Customer Relations Policy and Strategy.
The position is 70% office based and 30% site based.
Responsibilities
Oversee community complaints management process for the contract maintaining close communication of these matters to the Project Manager.
Responsible for entering any complaints into the SWC computerised customer complaints system - C-View.
Involvement and resolution of customer complaints on site. This involves the traversing of Kembla sites which are often difficult to negotiate due to uneven terrain and disturbed ground conditions. If a resolution cannot be reached, the representative shall advise the Sydney Water representative immediately.
Prepare monthly report on community relations and present at monthly project review meetings with Sydney Water.
Liaise with Kembla Project Manager, Contract Supervision and Foreman to address any customer issues that may arise.
Carry out induction and training and community relations customer service requirements in the delivery of contract works.
Develop business relationships with relevant Sydney Water personnel.
The document quoted in the preceding paragraph is consistent with the more detailed Kembla document headed "Position Description" relating to the position titled: "Customer Relations Officer". In the key result area "service delivery" in the latter document, it is noted that the Customer Relations Officer is to "Attend all work sites including those with difficult terrain including national parks, dense bush land and construction sites".
Ms Duncan saw the advertisement for the position of Community Relations Officer with Kembla on the internet and applied for the position.
There were 28 persons who applied and of those 4 persons were shortlisted for a first interview. Ms Duncan was one of those shortlisted.
In her written version of events given to the Anti Discrimination Board, Ms Duncan did not identify any specific dates on which she said she was interviewed by Mr Pleasance from Kembla.
In Kembla's letter of 28 May 2010 to the Anti Discrimination Board, it was stated that Ms Duncan's initial interview was conducted by Mr Pleasance at the Strathfield head office of Kembla on 1 April 2010. According to Mr Pleasance's evidence in cross examination, it was he who provided the information to the person who prepared Kembla's letter of 28 May 2010. Mr Pleasance's statement, dated 4 May 2011, also indicated that the first interview occurred on 1 April 2010. We find that it occurred on 1 April 2010.
It appears to be common ground that the nature of the duties involved in the Community Relations Officer position with Kembla were discussed in detail at the first interview. What is in dispute is whether the question of a pre-employment medical was raised on that occasion.
Ms Duncan's evidence was:
No mention was made of a pre-employment medical at any stage or that it would a condition of employment to pass a medical for the role.
On the other hand, Mr Pleasance said that at both the first and second interview, he explained to Ms Duncan:
The need for a medical assessment and the fact that this was viewed as necessary by Kembla given 30% of the role was to be performed external to the office and in a variety of conditions.
In Kembla's letter of 28 May 2010, it was stated:
At the initial interview, Mr Pleasance explained that if Kembla decided to proceed with Ms Duncan's application, she would be required to attend for a second interview with the Community Relations Manager, attend a pre-employment medical examination and possibly undergo psychometric testing. This is standard Kembla practice for all job applicants and has been for at least the last five years.
It is difficult for the Tribunal to resolve this conflict of evidence as we do not believe that either or Ms Duncan or Mr Pleasance was being untruthful when giving their recollections of what occurred. Although it may not be necessary to resolve the issue, the Tribunal is of the view that Mr Pleasance probably did mention at the first interview that a pre-employment medical examination was part of the process of engagement, if Ms Duncan were to be the preferred candidate after the second interview, but did not give any emphasis to this aspect of their discussions.
We also believe it is likely that given Ms Duncan's belief set out in her material presented to the Anti Discrimination Board that:
The medical was just a formality so that any pre existing health problems could be established for OH&S reasons,
Mr Pleasance's comment at the first interview did not register with her and she now has no recollection of it.
Ms Duncan was invited back for a second interview. Once again, Ms Duncan does not identify the date of that interview in her written statement to the Anti Discrimination Board but Mr Pleasance, in his statement, states that it occurred on 8 April 2010, which is consistent with Kembla's letter of 28 May 2010.
In cross examination of Mr Pleasance, Ms Duncan put to him that the date of 8 April 2010 was wrong and that it had occurred the week before. On one occasion, she put to Mr Pleasance that it had occurred during the week before Easter. In 2010, Good Friday fell on 2 April and Easter Day on 4 April 2010. If the second interview had occurred in the week before Easter, assuming it did not occur on Good Friday, it must have occurred on the same day as or before the first interview, if the first interview occurred on 1 April 2010.
Given the absence of any identification of dates by Ms Duncan in her complaint form to the Anti Discrimination Board dated 19 April 2010, and the dates given by Kembla in its letter of 28 May 2010, and confirmed by Mr Pleasance in his statement of 4 May 2011, the Tribunal finds in all the circumstances it is likely that the second interview on or about 8 April 2010.
Once again, there is a dispute as to whether or not Ms Duncan was informed of the requirement for a pre-employment medical examination at the second interview. While accepting that both Ms Duncan and Mr Pleasance were attempting to be truthful witnesses, it is likely that the requirement for such an examination was mentioned but not in such a way as to be remembered by Ms Duncan.
After the second interview, Ms Duncan was informed by telephone that she was the preferred candidate and she supplied some referee contact details to Mr Pleasance on the afternoon of 8 April 2010. There probably was a suggestion made on that occasion that Ms Duncan might start work on 12 April 2010.
Having spoken to Ms Duncan's referees, Mr Pleasance telephoned Ms Duncan on 9 April 2010 to advise her that Kembla was satisfied with her references and would be sending her a copy of the proposed employment contract for her to consider.
On 9 April 2010 at 9:12am, Mr Pleasance sent an email to Ms Duncan which contained the following:
Please find attached a letter of offer for the position. We will need to have a Tuesday 13 th start as we will all be engaged in the monthly Sydney Water meeting on Monday 12 th .
We will confirm a pre-employment staff medical appointment for Monday at Burwood shortly. The time and address will be emailed to you.
Any queries, please contact me on [Mr Pleasance gave his mobile telephone number].
Attached to that email was a draft unsigned employment contract dated April 8, 2010, which in numbered paragraph 2 included an employment commencement date of Tuesday April 13, 2010 and, in numbered paragraph 3, details of the proposed remuneration. Numbered paragraph 5 of the letter was headed 'Probationary Period' under which appeared the following:
Your employment will be subject to a six (6) month probationary period.
During the probationary period, your employment may be terminated by 2 weeks notice in writing by either party. The Company may make payment of your notice at its discretion.
Following the unsigned draft letter headed 'Employment Contract' was a page headed 'Memorandum of Acceptance' which provided:
I, Jacqueline Duncan, accept employment with the Company on the terms and conditions set out in the above Employment Contract. I confirm that I have read, understood and agree to be bound by each of those terms and conditions.
After receiving that email, Ms Duncan spoke to Mr Pleasance on the telephone and said that she was happy with the terms and conditions offered by Kembla. She did not, however, send back a signed Memorandum of Acceptance.
The Medical Examination and its Consequences
At 11:39am on 9 April 2010, Mr Pleasance sent a further email to Ms Duncan which forwarded an email which gave the date, time, address and other details concerning the pre-employment medical booked for Ms Duncan. The medical examination was scheduled to take place at 10:00am on Monday 12 April 2010.
Ms Duncan attended that medical appointment. She was examined by Dr Derek Lee and gave information to the doctor concerning her medical history and conditions.
It appears that before Dr Lee completed his written assessment of Ms Duncan, he telephoned Kembla and spoke to Mr Papworth who had caused the medical appointment for Ms Duncan to be scheduled. Dr Lee enquired as to the exact nature of the physical requirement and, in particular, the field work for the job for which Ms Duncan was being considered. Mr Papworth described the field work as follows:
She will have to travel to sites where there are residences. Also she will have to walk on uneven ground and rough terrain. Simply put, these are civil engineering work sites. As I said, uneven ground, disturbed ground and perhaps including adverse weather conditions. Access might involve walking down slopes, hillsides, that sort of thing.
The conversation then continued as follows:
Dr Lee: Yes, I understand what you're saying. I consider that if she was required to perform such work there is a real risk of injury to Ms Duncan taking into account my examination of her and an identification of her physical issues and medical condition she has and that this field work or on site work is essential to the position. Is that correct?
Papworth: That's absolutely correct.
Dr Lee: If that is the case, then I have to say to you that there is a very high risk of injury including an aggravation of her existing conditions. There is a high risk of a workers compensation injury. There is a very high risk that she will have problems coping with the physical demands of the site work in my opinion. If I was you, I would not employ this woman in the position you have just described to me.
Dr Lee prepared a form headed 'Occupational Medical Assessment - General' in respect of Ms Duncan and that form recorded that in the doctor's opinion, Ms Duncan was "fit for duties with the following restrictions (specified below)" which were set out in the comments box as follows:
NB congenital hearing loss [right] ear; left ear [normal] > no impact on job.
For minimal bending, twisting, squatting: minimal uneven ground.
Ensure ergonomic assessment of work station.
Adequate back care / precautions.
Further on in the same assessment form, the doctor ticked the box marked 'No' next to the observation "Can kneel, crouch & climb" and also next to the observation "Capable of tasks involving repetitive work". The doctor also ticked the box labelled "Incorrect" next to the statement:
Doctor finds nothing in the medical history or examination which adversely affects any of the above abilities or unduly predisposes to accident or injury from the proposed position.
In our view, this assessment could legitimately have been viewed by Kembla as indicating that Ms Duncan might have significant difficulties carrying out the duties of a Community Relations Officer for the company.
Mr Papworth and Mr Pleasance discussed the information they had received from Dr Lee. In the circumstances, Mr Pleasance formed the view that while some modification of the office area could be made to address some of the issues, the field work was an essential part of the job and it could not be modified so as to make it possible for Ms Duncan to undertake the field work without her running an unacceptable risk of injury. He therefore decided that Ms Duncan's employment as a Community Relations Officer with Kembla could not proceed.
On the afternoon of Monday 12 April 2010, Mr Pleasance and Ms Duncan spoke on the telephone. According to Ms Duncan, during that call, she:
was advised that I was disqualified from the job and that he was withdrawing the offer due to a knee injury which I had sustained approximately 11 years earlier.
He advised me that as my job would require me to do site visits, this would be too high a risk.
Ms Duncan went on to record that she was shocked and distressed at this conversation as she had turned down another position to accept this job.
Mr Pleasance's recollection of this conversation is as follows:
Pleasance: Jacqueline, I have the results of your medical assessment and it is bad news I am afraid. Unfortunately, on the basis of the report we cannot move to finalise our offer of employment with you.
Duncan: I have contract of employment. This is not allowed.
Pleasance: No, you do not have a contract of employment Jacqueline. You have a draft employment contract, finalisation of which was subject to favourable medical assessment.
Duncan: You can't do this. This is not right. I will take action against you and your company.
Pleasance: Jacqueline, I have nothing further to add as the decision has been taken. I wish you well in your pursuit of alternative employment opportunities.
At the hearing and during cross examination, Ms Duncan disputed some elements of the conversation as recorded by Mr Pleasance and suggested to him that she had said words to the effect of "You've got to be joking" during the conversation. Mr Pleasance accepted that this was so.
It does not appear to the Tribunal that anything turns of the exact terms of the conversation beyond the fact that a conversation occurred between Mr Pleasance and Ms Duncan on the afternoon of 12 April 2010 in which it was communicated to Ms Duncan that her employment with Kembla as a Community Relations Officer would not proceed because of the results of her medical examination. As the Tribunal understands it, there was no dispute between the parties that this was the substance of what occurred on that occasion.
Ms Duncan did not obtain another employed position until 22 July 2010.
The Complaint and Material Provided to the ADB
Ms Duncan lodged her ADB complaint form dated 19 April 2010 with the Anti Discrimination Board. It is stamped as having been received by the Board on 27 April 2010 and by the Wollongong Anti Discrimination Board on 29 April 2010. In that ADB complaint form Ms Duncan gave her version of events (which has been referred to above) and she went on to assert that:
I was offered this job on merrit and now it was being withdrawn over a sore knee. This could easily be handled by wearing a knee guard and flat shoes when attending sites.
My knee does not stop me from dancing two hours once a week or from training several horses in my spare time. I also walk my dog and do gym and workout on a treadmill.
As has already been noted, Kembla responded to the complaint by its letter of 28 May 2010. Ms Duncan made comments in reply by a letter of 20 June 2010, which was received by the Wollongong Anti Discrimination Board on 21 June 2010.
Kembla provided more detailed comments in a letter dated 23 July 2010 which was received by the Wollongong Anti Discrimination Board on 24 July 2010. That letter contains the following additional significant information, which the Tribunal accepts:
1.Kembla is a specialised pipeline rehabilitation contractor. We employ approximately 135 staff in a variety of roles. We have operations in NSW, Victoria and Queensland.
2.The Customer Relations Officer role for which Ms Duncan applied is based in our Sydney office. The role primarily services one of our key customers, Sydney Water Corporation (SWC). Kembla has provided services to SWC since about 1994. These services include trenchless rehabilitation of their assets [which the Tribunal understands to be primarily pipelines] and are supplied at a variety of locations including difficult terrain in national parks, bushland and steep foreshore areas of the Sydney catchment area.
3.The position that Ms Duncan applied for became available due to a need to supply additional resources in the field of the community relations requirement and to cover off a pending maternity leave.
4.The Sydney Water contract involves all residences, commercial buildings, industrial areas, public facilities and any area that is connected to the sewer network of the Sydney catchment areas. Kembla supplies a variety of services that in summary provide effective rehabilitation of Sydney Water's sewer assets whilst maintaining successful and harmonious relationships with the residents of those areas. Kembla would, on average, rehabilitate 380-400 assets (pipelines) of 50 meters in length every four months. Each site has a defined process that is duplicated asset after asset. The community relations role that Ms Duncan applied for requires the visitation of each of these sites and a notification of each effected occupant prior to any works commencing on site. There could be up to 70 effected residents on each asset in areas of high density living (large apartment buildings). At many site, complications may arise that require the Community Relations Officer to attend at short notice and liaise with the resident or impacted individuals. Our next 800 assets package will have a high level of environmental Category B sites. This means that the Community Relations Officer will be required to traverse numerous steep inclines on private properties and terrain to meet with homeowners, National Park & Wildlife officers, bush care group representatives and other stakeholder personnel. This is done with one Kembla representative only who will meet with the interested parties. Access is usually difficult to these sites as they need to remain in a natural state with minimal impact. To carry out these site visits, it is often required to walk many kilometres into national parks on narrow, uneven and difficult access tracks to view the assets. Suitable sturdy footwear and clothing is necessary. This is supplied by Kembla.
...
10.Based on the medical advice and internal discussions involving Kembla's OH&S Systems Officer, the view was formed that Ms Duncan would be unable to perform the inherent requirements of the role in that she would not be able to safely carry out site visits as required.
11.To accommodate her in the business would not have been practicable in the circumstances and would have imposed an unreasonable burden on the business. The Community Relations Officer is a role for one individual and has been since its inception in 2006. In our assessment, the only feasible options would have been to either:
(a)allocate responsibility for site visits to another member of staff; or
(b)for a second staff member to have accompanied Ms Duncan on site visits.
Neither option was considered practicable in the circumstances, it was not practicable to re-allocate the responsibility for site visits because the person performing visits needs a direct relationship with clients and stakeholders, nor was it considered possible for a second staff member to attend site visits as this is counter-productive, unnecessary, not cost effective and a waste of resources. The current incumbent is performing his work without issue or company on site.
In addition, Kembla provided more detailed medical report prepared by Dr Lee in relation to Ms Duncan. That report dated 1 June 2010 contained the following:
Diagnoses
1.Hypertension.
2.Non insulin dependent diabetes mellitus.
3.Hypercholesterolaemia.
4.Congenital hearing loss in right ear.
5.Previous neck injury with operative repair from MVA.
6.Previous right knee injury with arthroscopy.
7.Morbid obesity.
Opinion/Recommendations
It is my opinion that Ms Duncan suffers from a number of medical conditions as listed above, several of which significantly impair her ability to perform the inherent requirements of her proposed occupation as Customer Liaison Officer.
Firstly, it is my opinion that her knee condition has not fully resolved. Despite having treatment in the past, she still demonstrates tenderness around the medial joint line indicating that she may have ongoing knee pathology that may require further investigation and management.
Secondly, her past history of sustaining a major neck injury in 2001 progressing to eventually require an operation 6 years later puts her at great risk of re-injury or, at the very least, exacerbating her neck in the future.
Thirdly, obesity is well known to be a major risk factor, not only for cardiovascular health, but also in the development of musculoskeletal injury including soft tissue injuries and the development of degenerative arthritis, particularly of weight bearing structure such as the back and the knees.
Fourthly, her blood pressure measured on the day of assessment was elevated at 150/98 mmHg. This may indicate that her blood pressure is not adequately controlled and therefore, may require further assessment and management by her treating doctor.
With respect to her prospective job, it is my opinion that she is not fit to perform all the inherent duties of the position.
In particular, there is a significantly increased risk of injury and/or deterioration to her right knee with frequent and/or prolonged walking and standing, both on even and particularly on uneven surfaces. Frequent use of stairs also presents a significant hazard to further aggravation of her knee.
This, in combination with her morbid obesity, further exacerbates her risk of injury.
Exercising (including walking and running) normally results in an elevation of heart rate and blood pressure. With her elevated blood pressure, there is a risk that this blood pressure may rise to a significantly raised level, increasing her risk of sustaining an acute cardiovascular injury.
Further, with respect to her neck, frequent use of her neck such as repetitive turning as well as maintaining prolonged static posture significantly increases the risk of exacerbating her neck condition.
In conclusion, based on the assessment performed on 12 April 2010, I believe that performing the full duties as a Customer Liaison Officer will increase her risk of aggravating her medical conditions for the reasons outlined above.
Recommendations were made on the initial medical assessment outlining restrictions to minimise this risk if she were to perform this job including minimal bending, twisting, squatting, minimal uneven ground, full ergonomic assessment of her workstation as well as adequate back care and precautions.
The Medical Evidence
Kembla relied upon Dr Lee's form headed 'Occupational Medical Assessment - General' and his report of 1 June 2010. Ms Duncan did not require Dr Lee for cross examination or generally seek to challenge the substance of his report except in relation to the description "morbid obesity".
As has already been noted, Ms Duncan did not adduce any evidence from any medical practitioner to challenge Dr Lee's findings and opinions. In cross examination, Ms Duncan said that she felt she was a good enough witness for herself. She did say that she had spoken to her own medical practitioner but she did not think it necessary to put on a statement from that doctor. She confirmed that her belief was that she did not have any disability that would prevent her from carrying out the duties of a Community Relations Officer and that all Kembla was relying on was "perceived disability", as Ms Duncan phrased it.
We find that Dr Lee was a qualified medical practitioner who in addition to the usual undergraduate medical degrees was a Fellow of the Royal Australian College of General Practitioners, held the degree of Master of Sports Medicine from the University of New South Wales, was an Injury Management Consultant and a Workcover Authorised Medical Practitioner. He examined Ms Duncan on 12 April 2010 and his report sets out not only the results of his examination but also a report of the history she gave to him and his reasoning to support his conclusions.
Nothing Ms Duncan has put before the Tribunal provides a sufficient basis for the Tribunal to reject Dr Lee's conclusions as to Ms Duncan's medical condition or the risks associated with her performing site visits as part of the duties of a Community Relations Officer with Kembla. The difficulty for Ms Duncan's case in this regard is that even if the Tribunal accepts that she could move about the hearing room without obvious difficulty, dance, train horses, walk dogs and do gym, it would not follow that Dr Lee was incorrect. Dr Lee, as we understood his evidence, was not saying that Ms Duncan could not, at the time of his examination, physically walk on any uneven ground. Rather he was saying that if she were required to carry out the type and extent of site visits that formed an essential part of the position of Community Relations Officer with Kembla, Ms Duncan would have a significantly increased risk of injury and/or deterioration to her right knee as well as increasing the risk of aggravating her other medical conditions, as more fully set out in his report. Further, these heightened risks were such that, in his medical opinion, Ms Duncan could not be said to be fit to perform the site visits required of a Community Relations Officer with Kembla.
The Tribunal accepts Dr Lee's evidence.
Relevant Statutory Provisions
The relevant section of the ADA rendering discrimination on the ground of disability in relation to employment unlawful is s 49D which provides:
(1)It is unlawful for an employer to discriminate against a person on the ground of disability :
(a)in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b)in determining who should be offered employment, or
(c)in the terms on which the employer offers employment.
(2)It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a)in the terms or conditions of employment which the employer affords the employee, or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c)by dismissing the employee, or
(d)by subjecting the employee to any other detriment.
(3)Subsections (1) and (2) do not apply to employment:
(a)for the purposes of a private household, or
(b)where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or
(c)by a private educational authority.
(4)Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)would be unable to carry out the inherent requirements of the particular employment, or
(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
(5)For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
"Employment" is not defined in the ADA except to the extent that s 4(1) provides that "employment" includes "work under a contract for services".
"Disability" is defined in s 4(1) of the ADA to mean:
(a)total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b)the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c)the malfunction, malformation or disfigurement of a part of a person's body, or
(d)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The concept of disability is expanded in s 49A of the ADA as follows:
A reference in this Part to a person's disability is a reference to a disability:
(a)that a person has, or
(b)that a person is thought to have (whether or not the person in fact has the disability), or
(c)that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d)that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
What constitutes "discrimination" for the purposes of s 49D is set out in s 49B of the ADA. The relevant provisions of that section include:
(1)A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a)treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b)requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
Was Ms Duncan Subject to Unlawful Disability Discrimination by Kembla in relation to Employment?
In determining whether Kembla unlawfully discriminated against Ms Duncan in the present case, the Tribunal must consider the following issues:
a)Was Kembla an "employer" (within s 49D)?
b)Did Kembla engage in conduct in relation to Ms Duncan either:
i)in determining whether she should be offered employment (within s 49D(1)(b)); or
ii)by dismissing her (within s 49D(2)(c)?
a)When engaging in that conduct did Kembla discriminate against Ms Duncan on the ground of disability (within s 49B)?
b)If Kembla did so discriminate against Ms Duncan, was that conduct nonetheless not unlawful by operation of s 49D(4)(a) because taking into account all relevant matters Ms Duncan would be unable to carry out the inherent requirements of employment as a Community Relations Officer with Kembla because of her disability?
Was Kembla an "Employer"?
It was not in dispute that Kembla employed staff, including Community Relations Officers. It follows that Kembla would naturally be described as an "employer" when that word is used in its ordinary English meaning. There is no restrictive definition of "employer" in the ADA nor does the scope or purpose of that Act suggest that a narrower definition should be adopted. Indeed, the Courts have emphasised on numerous occasions that in construing legislation designed to protect basic human rights and dignity, such as the ADA, those administering such laws should construe the provisions of that legislation as widely as their terms permit - see, for example, IW v City of Perth (1997) 191 CLR 1 at 22 - 23. This has been applied by the Appeal Panel of this Tribunal to the construction of "employer" in s 49D in Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 at [57].
Accordingly, the Tribunal finds that Kembla was an employer for the purposes of s 49D of the ADA.
Did Kembla engage in conduct within s 49D(1)(b) or (2)(c)?
Section 49D can apply whether or not the person allegedly discriminated against is an employee of the employer or only a person seeking employment. Subsection 49D(1) applies to conduct by an employer towards "a person" in relation to offers of employment. That "person" does not have to be an existing employee. Subsection 49D(2), on the other hand, addresses certain types of conduct by an employer directed at "an employee", that is someone who has already been employed by the employer.
For this reason, it may not make any difference whether Ms Duncan had an offer of employment which was withdrawn or a contract of employment which was terminated.
Ms Duncan's case was that her telephone conversation with Mr Pleasance on 9 April 2010, the email of 9 April 2010 sent at 9.12 am and the draft unsigned employment contract attached to the email constituted an unconditional offer of employment. In her telephone conversation with Mr Pleasance on the same date, Ms Duncan said that she was happy with the terms and conditions offered and this, she submitted, was an acceptance of the offer of employment. As a result, she had a contract of employment with Kembla, with a starting date of 13 April 2010. Her case was that a satisfactory medical examination was not, and was never stated to be, a condition of the offer of employment or of her employment itself.
What then occurred, according to Ms Duncan, was that Kembla terminated her employment because of the results of the medical examination.
If this analysis of the events is accepted by the Tribunal, the conduct of Kembla would amount to dismissing an employee within s 49D(2)(c).
Kembla, on the other hand, submitted that during the two interviews Mr Pleasance had stated that any offer of employment would be conditional upon Ms Duncan's satisfactorily completing the medical examination and any offer of employment contained in Mr Pleasance's email of 9 April 2010 sent at 9.12 am was such a conditional offer. As Ms Duncan's medical examination was not satisfactory, the offer lapsed or was withdrawn. If the Tribunal were to make these findings, the conduct of Kembla could be described as being "in determining who should be offered employment" and thus falling within s 49D(1)(b).
Accordingly, whichever analysis of the events is adopted, Kembla engaged in conduct which, if it amounted to or involved discrimination on the ground of disability within s 49B, would be unlawful under s 49D, subject to the defence in s 49D(4).
It is not, therefore, strictly necessary for the Tribunal to make findings as to which analysis should be adopted. Nonetheless, in case we are wrong on this, the Tribunal finds that, as was noted above, Mr Pleasance did inform Ms Duncan of Kembla's requirement that she undergo a medical examination prior to her employment and that any offer of employment would be conditional on her medical examination being satisfactory, in the sense that it indicated she was fit for all duties involved in the position for which she had applied. In the Tribunal's view, however, Ms Duncan's evidence that this was not said at the interviews reflects the fact that she did not recall that being said rather than that Ms Duncan was giving untruthful evidence.
Ms Duncan's medical examination was not, in Kembla's view, satisfactory and as a result it withdrew any offer that had been made to Ms Duncan.
It follows that, if the Tribunal is required to reach a conclusion on which, if any, paragraph of s 49D was applicable to Kembla's conduct, we find that Kembla engaged in conduct falling within s 49D(1)(b) of the ADA.
Did Kembla discriminate on the ground of disability?
Section 49B of the ADA explains what constitutes discrimination on the ground of disability. Paragraph 49B(1)(a) describes direct discrimination and paragraph 49B(1)(b) deals with indirect discrimination. The Tribunal notes that the case was conducted entirely on the basis that it was only direct discrimination that Ms Duncan alleged. As a result, the Tribunal shall only address the operation of s 49B(1)(a) in this matter.
In order for there to be direct discrimination under s 49B(1)(a), Ms Duncan must establish that Kembla, by withdrawing the offer of employment (or terminating her employment if an unconditional offer of employment had been accepted):
(a)treated Ms Duncan less favourably than in the same circumstances, or in circumstances which were not materially different, Kembla treated or would have treated a person who did not have Ms Duncan's disability - the differential treatment issue; and
(b)that differential treatment was on the ground of her disability - the causation issue.
Where there exists an actual person whose treatment can be compared with that of Ms Duncan, it is possible to carry out the required analysis in a sequential manner, addressing the differential treatment issue first and then the causation issue. In the present case, however, Ms Duncan was, as far as the evidence before the Tribunal discloses it, the only applicant offered the position at that time. Thus, the required comparison is between Ms Duncan and a hypothetical other applicant who was also offered the position. The problem of applying this test using a hypothetical comparator was addressed by the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65] as follows:
"less favourable treatment" and "on the ground"
59An applicant faces a difficult task in establishing direct discrimination under the `comparative' approach of the ADA . There is in our view an issue to be resolved as to how the Tribunal follows the approach set out by the Appeal Panel in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 in matters where the comparator is hypothetical.
60The ADA requires Dr Dutt to establish, in relation to each of his allegations, that the CCAHS treated him "less favourably" in the same circumstances than it did or would have treated a person not of Dr Dutt's race. This `comparative' approach to proving direct discrimination is notoriously problematic: the NSW Law Reform Commission described it as both artificial and complex ( Review of the Anti-Discrimination Act 1977 (NSW) Report 92, NSW Law Reform Commission, 1999, at 3.52, and generally at 3.31-34). Although the Commission recommended that a different approach be adopted, the `comparative' approach remains in place in NSW.
61The Appeal Panel in Aldridge sets out the two consecutive questions asked by the ADA in relation to a claim of direct discrimination: first, was there less favourable treatment and secondly, if so, was it on the ground of race? The Appeal Panel explained the consecutive nature of the issues in this way: "different treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation" (at para 45). The first question and, if appropriate, the second question must be asked and answered for each of the allegations ( Aldridge at para 54).
62The consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess "less favourable treatment". The relevant treatment of a comparator is assessed, and from that it can be determined whether the applicant was treated less favourably. If less favourable treatment is established, that is the end of the comparative exercise, and attention turns to the ground or grounds for the treatment of the applicant.
63When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently.
64In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'.
65This is not to disagree with the analysis in Aldridge , but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise.
We believe this reasoning is applicable in the present case. The Tribunal cannot determine whether Ms Duncan was treated less favourably without determining at the same time why Ms Duncan was treated as she was by Kembla.
The correct approach to determining causation in anti-discrimination matters has been considered by the High Court in Purvis v State of New South Wales (2003) 217 CLR 92. At [166], McHugh and Kirby JJ held:
The weight and course of authority no longer accepts that the 'but for' test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the 'but for' test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a 'but for' test. Correctly, it focuses on the 'real reason' for the alleged discriminator's act ....
Unlike many sex or race discrimination cases, the real reason why Ms Duncan's offer was withdrawn (or her employment terminated) was made explicit in the evidence. It was in effect because her medical examination was unsatisfactory. The evidence from Kembla established that it was Dr Lee's professional opinion that Ms Duncan's medical conditions rendered her unfit to perform the site visit aspect of the duties of a Community Relations Officer with Kembla and that the relevant officers of Kembla accepted Dr Lee's opinion and acted upon it.
As we understand the evidence, the relevant unfitness which Dr Lee and Kembla thought existed was that if Ms Duncan carried out site visits in the often relatively inaccessible, uneven and rugged terrain in which Kembla carried out its work, she would have a significantly increased risk of injury and/or deterioration to her right knee, for which she had had treatment in the past. Moreover, her weight, elevated blood pressure and possibly her previous neck injury would also lead to increased risk of injury if she were to carry out the required site visits.
The injuries in the past, the ongoing conditions, the likelihood of future injuries and the loss of function or malfunction these have produced or will produce appear to us to satisfy the definitions of disability found in meanings (a) and/or (c) in s 4(1) of the ADA, as extended by s 49A(a), (b), (c) and/or (d).
Ms Duncan had emerged, after two interviews, as the preferred candidate for the position of Community Relations Officer with Kembla. The evidence from Kembla established that the only reason Mr Pleasance withdrew the offer (or terminated her employment) was that Ms Duncan suffered from the disabilities identified by Dr Lee. The Tribunal, therefore, finds that if it had not been for her disabilities disclosed in the medical examination, Kembla would not have acted as it did. In the light of these findings, the Tribunal concludes that Kembla treated Ms Duncan less favourably than in the same circumstances, or in circumstances which were not materially different, Kembla would have treated a person who did not have Ms Duncan's disabilities.
Accordingly, Ms Duncan has established that she was less favourably treated because of her medical conditions and was, as a result, discriminated against on the ground of disability. It has already been found that Kembla's conduct fell within s 49D(1)(b) (or 2(c)) of the ADA. It follows that unless the exception in s 49D(4) applies, Kembla should be found to have unlawfully discriminated against Ms Duncan.
The Inherent Requirements Exception
Kembla, in its defence, raised in a rather oblique fashion the exception to unlawful discrimination under s 49D which is found in s 49D(4) in the following words: " The Applicant was not fit to discharge the required duties of the position without adverse consequences or risk to both her and the Respondent. " At the hearing it was made clear that s 49D(4) was being relied upon and the hearing was conducted on that basis.
The subsection provides, in part:
(4)Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment ... and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)would be unable to carry out the inherent requirements of the particular employment, or
(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
The requirements of s 49D(4) were considered by the Appeal Panel of the Tribunal in Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 in some detail and these observations have been helpfully summarised by the Tribunal in Peck v Commissioner of Corrective Services [2002] NSWADT 122 at [80] as follows:
80The Appeal Panel in the Maxwell decision dealt at length with the inherent requirement exception in section 49D(4) of the Act. The Tribunal would summarise the relevant aspects of the section arising from the statements by the Appeal Panel, as follows:
(1)It is a matter for the Tribunal to determine what were the inherent requirements of the position;
(2)The Tribunal is required to assess the inherent requirements of the position by an objective examination. This includes giving "appropriate recognition to the business judgment of the employer in organising its undertaking and regarding this or that requirement as essential to the particular employment" [per McHugh J in X v Commonwealth of Australia [(1999) 200 CLR 177 at [37]] ...].
(3)"The reference to "inherent" requirements invites attention to what are the characteristics or essential requirements of the employment opposed to those requirements that might be described as peripheral." [per Gummow and Hayne JJ in X 's case at [[102]] ...].
(4)Having identified the inherent requirements of the position it is then necessary for the Tribunal to determine whether, because of his disability, the Applicant was unable to perform those inherent requirements (per Maxwell para 97).
(5)In determining the ability of the Applicant to perform the inherent requirements, section 49D(4) of the Act stipulates the Tribunal take into account the Applicant's "past training, qualifications and experience relevant to the particular employment ... and all other relevant factors that it is reasonable to take into account."
(6)"The search ... is for a causal relationship between disability and being unable to carry out the inherent requirements of the employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty that must be demonstrated ... ." [per Gummow and Hayne JJ in X 's case at [[101]] ...].
(7).... In considering how this assessment of risk should be undertaken, Gummow and Hayne JJ in X 's case [at [[109]] ...] said: "As we have said, inability to perform must be assessed practically. In particular we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment ... . Much would turn on the nature and size of the risks that are said to arise."
The Tribunal has applied these principles in reaching its conclusions set out below.
The Inherent Requirements of the Community Relations Officer Position
The descriptions of the role and duties of a Community Relations Officer with Kembla in the company's documents referred to above establish that it was a part of that job to visit Kembla's sites where work was being carried out. They also made it clear that the sites visited would almost invariably be construction sites and would often be in difficult or inaccessible terrain, given the location of the pipes that Kembla was required to carry out its work on.
The Tribunal is satisfied that site visits of this nature were an essential requirement of the Community Relations Officer's role because such an officer's task was to meet and liaise with members of the community whose interests (for example, as a landholder, a resident or a person responsible for the management or maintenance, of the area where the pipes on which Kembla was working were located) could be affected by that work and to observe Kembla's work and operations in those areas. Having carried out those duties on site, the Community Relations Officer's role also involved preparing reports and correspondence concerning those members of the community whose interests were affected and other work that could be performed in an office. It does not appear to the Tribunal that the site visits and on site liaison with persons or community groups affected by Kembla's work could properly be described as peripheral to the Community Relations Officer's role.
Accordingly, the Tribunal finds that site visits to constructions sites in a wide variety of terrains, often involving bushland, slopes and unpaved areas was an inherent requirement of employment as a Community Relations Officer with Kembla. From the way in which the case was conducted, the Tribunal formed the view that this conclusion was not really in contest. Rather, the fundamental point in dispute was Ms Duncan's ability to perform the site visit aspect of the duties of a Community Relations Officer.
Was Ms Duncan Unable to Perform the Inherent Requirements?
Ms Duncan submitted that she would have been able to perform all the site visit duties required of a Community Relations Officer provided that she had been given low heeled safety boots and possibly a knee guard. It was accepted that Kembla would give to all Community Relations Officers such boots in the ordinary course of events. In order to establish the fact that she did not have any relevant disability Ms Duncan did not seek to rely on any medical expert evidence. Rather she based her case on her own assessment of her abilities, her ability to breed and train horses, dance, walk her dogs and similar abilities. She also drew attention to her ability to move easily around the Tribunal hearing room.
In maintaining that in fact she did not suffer from any relevant disability, M Duncan submitted that Kembla had discriminated against her on the basis of "perceived disability". During the hearing, Ms Duncan agreed that by this she meant that she was relying on the definition of " disability " in s 49A(b), namely a disability " that a person is thought to have (whether or not the person in fact has the disability) ".
Kembla submitted that Ms Duncan did suffer from a number of disabilities as identified by Dr Lee in his report and that as a result of those disabilities she was unable to perform the site visit duties inherent in the Community Relations Officer's role.
Dr Lee's medical history obtained and observations made on examination were not challenged by Ms Duncan although she did not accept some of his opinions as to her conditions and disabilities. His assessment of her medical condition and disabilities is set out in his report dated 1 June 2010 which has been quoted at length above.
In the absence of any medical expert's evidence challenging Dr Lee's conclusions and given that Ms Duncan accepts Dr Lee's account of her medical history and examination, the Tribunal has accepted Dr Lee's evidence concerning Ms Duncan's medical condition. Specifically, we find that Ms Duncan had at the time of her examination on 12 April 2010 the conditions and disabilities that Dr Lee identified in his report.
We now turn to the issue of whether, because of those disabilities, Ms Duncan would have been unable to carry out the inherent requirements of the particular employment. In this regard, under s 49D(4) of the ADA the Tribunal is required to take into account Ms Duncan's " past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account ".
Ms Duncan did not point to any aspect of her past training, qualifications or experience that would be relevant to her employment as a Community Relations Officer and that would suggest that she could perform the site visit aspect of the duties of such an officer. Next, even if it were found that Ms Duncan was an employee of Kembla, she had not commenced employment prior to 13 April 2010 and thus there was nothing in her performance as an employee that could assist her in this regard. Finally, the Tribunal has taken into account other relevant factors such as her own assessment of her abilities, her ability to breed and train horses, dance, walk her dogs and similar abilities as well as our observations of Ms Duncan in the Tribunal hearing room.
None of this material, however, in our view outweighs the opinion of Dr Lee that Ms Duncan was not fit for duties involving more than minimal traversing of uneven ground because of her disabilities. The site visits required considerable walking across uneven surfaces such as slopes, construction sites, national parks, bushland and unpaved areas. In considering whether there was a causal relationship between her disabilities and Ms Duncan's being unable to carry out the inherent requirements of the employment, the Tribunal has taken into account Dr Lee's report of 1 June 2010 and also notes the comment of Dr Lee to Mr Papworth which was in the following terms:
If that is the case [that this field work or on-site work is essential to the position] then I have to say to you that there is a very high risk of injury including an aggravation of her existing conditions. There is high risk of a workers compensation injury. There is a very high risk that she will have problems coping with the physical demands of the site work in my opinion.
In the light of these opinions, it seems to us that the appropriate conclusion is that Ms Duncan could not be said to have been able to perform the inherent requirements of the Community Relations Officer's role with reasonable safety to herself. The risk of injury and/or aggravation of existing conditions was too high. This can be tested, in a practical sense, by asking the question: Would it have been reasonable for Kembla, having knowledge of Dr Lee's opinion, to have required Ms Duncan to have carried out all site visits on all sites and in all conditions? We think such conduct would not have been reasonable on Kembla's part.
Accordingly, taking into account all matters required to be considered by s 49D(4), the Tribunal concludes that Ms Duncan was unable because of her disabilities to carry out the inherent requirements of the particular employment as a Community Relations Officer with Kembla. Thus, by operation of s 49D(4)(a), it was not unlawful for Kembla to have discriminated against Ms Duncan on the ground of disability in the circumstances of this case.
In so far as the Tribunal is required to consider the operation of s 49D(4)(b) (and the Tribunal does not consider that it is), the Tribunal finds that there was no other practical way in which the site visit requirement could be satisfied without a person other than Ms Duncan being employed to carry out those visits and then report to Ms Duncan concerning what was discussed and observed at those visits so that Ms Duncan could perform that part of the Community Relations Officer role which involved only office work. In effect, Kembla would be required to employ two persons instead of one to carry out the site visit aspect of the Community Relations Officer role and to report on those visits. To require such a doubling up of employment would be an unjustifiable hardship on Kembla.
Conclusion
For these reasons, although the Tribunal finds that Kembla discriminated against Ms Duncan on the grounds of disability within s 49D(1)(b) by withdrawing its offer of employment as a Community Relations Officer (or alternatively within s 49D(2)(c) by terminating her employment), Ms Duncan was unable to carry out the inherent requirements of the particular employment, namely the site visits required of a Community Relations Officer, because of her disabilities. Thus, such discrimination was not unlawful, as a result of the operation of s 49D(4)(a).
The Tribunal considers that in the circumstances it is appropriate to dismiss the complaint.
Consequently, the Tribunal orders under s 108(1)(a) of the ADA that:
1.the complaint be dismissed in whole.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 20 July 2011
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