Dunne v Rail Corporation, New South Wales

No judgment structure available for this case.

CITATION: Dunne v Rail Corporation, New South Wales [2006] NSWADT 273

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Monica Dunne
RESPONDENT
Rail Corporation, New South Wales

FILE NUMBER: 051091

HEARING DATES: 24-26/07/2006

SUBMISSIONS CLOSED: 07/26/2006

DATE OF DECISION:
09/21/2006

BEFORE: MacDermott T - Judicial Member; Lowe A - Non Judicial Member; Schneeweiss J - Non Judicial Member

CATCHWORDS: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Rail Safety Act 2002

CASES CITED: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Bonella v Wollongong City Council [2001] NSWADT 194
Cosmo v Qantas Airways Limited [2002] FCA 640 [2002] FCAFC 425
Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
Dutt v Central Coast Area Health Service [2002] NSW ADT 133
Hall v Sheiban (1985) ALR 503
Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258
Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41
Lavery v Commissioner of Fire Brigades [2003] ADT 93
Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183
Perlidis v Brambles Security Services Limited Trading as Brambles Armoured [2003] NSWADT 11
Pignat v Richmond Valley Council [2005] NSWADT 162
Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133
Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83
Waters v Public Transport Corporation (1991) 173 CLR 349
Wollongong City Council v Bonella [2002] NSWADTAP 26

REPRESENTATION:
APPLICANT
M Moir, barrister
RESPONDENT
K Eastman, barrister

ORDERS: 1. Within 28 days of the date of this order the respondent must pay to the applicant the sum of $14,000 by way of damages.; 2. Within 10 days of the date of this order the applicant must file and serve upon the respondent written submissions in support of any application which the applicant proposes to make for costs. ; 3. Within 10 days of receiving any written submissions referred to in Order No 2 the respondent must file and serve any written submissions in response.

1 For the reasons we give below, we find the applicant’s complaint of disability discrimination is substantiated.

Introduction

2 In these proceedings the applicant, Ms Dunne, alleges that her employer, RailCorp NSW, unlawfully discriminated against her on the ground of her disability. The applicant has epilepsy. The applicant alleges that the respondent has directly and/or indirectly discriminated against her in relation to various aspects of her employment.

3 The respondent denies it has discriminated against the applicant on the ground of her disability. The respondent also submits that even if the applicant were able to demonstrate that she was discriminated against on the ground of her disability, the discriminatory treatment was not unlawful because of the operation of s 54 of the Anti-Discrimination Act 1977 (the Act), as any treatment was in compliance with the Rail Safety (Health Assessment) Guideline 2004.

Scope of the Complaint

4 The applicant lodged a complaint with the Anti-Discrimination Board (ADB) on 29 December 2004 alleging that she had been discriminated against because of her medical condition. She outlined how after notifying her employer of a seizure, she was told on 28 November 2003 not to carry out her normal duties, and that she was then relieving in positions not involving “safe working” at various stations. She indicated that this continued until 6 November 2004 when she alleges she was informed she could not work on railway stations at all because of her condition. She stated in her complaint that as a result she was put into an office opening envelopes, sorting letters and doing other menial tasks, and was financially disadvantaged as a consequence because of the loss of all penalties, weekend and shift work. The President of the ADB declined the incident occurring on 28 November 2003 as it was outside the 12 month period. The period for the referred complaint was recorded as 30 December 2003 to 29 December 2004.

5 The applicant filed Points of Claim on 20 March 2006 that relied on alleged discriminatory acts that occurred in November 2003, in November 2004 and in November 2005. The events of November 2003 and November 2005 were outside the period of the complaint as referred to the Tribunal. The Points of Claim stated at paragraph 9:

To the extent that any of the above matters or allegations do not form part of the original complaint referred to the Tribunal, then the applicant seeks leave of the Tribunal pursuant to s 103 of the Act to amend the complaint in order to incorporate all of the above matters or allegations.

6 In the Appeal Panel decision in Wollongong City Council v Bonella [2002] NSWADTAP 26, the Tribunal held that a complaint lodged with the ADB can only encompass conduct that occurred prior to the date of the complaint. This situation was changed when the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 introduced a new power to amend complaints. It came into effect on 2 May 2005. Section 103 now allows a complaint to be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President (See Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83).

7 The respondent opposed any application to amend the complaint, and a preliminary hearing of the Application to amend was set down for 25 May 2006. On 24 May 2006, the Tribunal received a request from the applicant’s solicitor that a consent order be made on the basis that the parties agreed to amend the complaint in accordance with an amended Points of Claim to be filed. A copy of the proposed Amended Points of Claim was provided to the Tribunal.

8 The amended Points of Claim dealt with two issues: (1) The first three words in paragraph 4(a)(i) were changed from “In November 2003” to “From 30 December 2003.” This was in line with the period of the complaint as referred to the Tribunal by the ADB. (2) The allegation set out in the original Points of Claim relating to failure to act on medical advice in November 2005 remained in the Amended Points of Claim. A consent order was made on the papers on 25 May 2006 pursuant to s 103 of the Act, by which the complaint was amended in accordance with the Amended Points of Claim.

9 Our understanding of the consent order made on 25 May 2006 is that the original complaint was amended (1) to change the date in paragraph 4(a)(i) to “from December 2003”, and (2) to add an additional complaint, being the allegation arising out of the events in November 2005. We find that as a consequence of the consent order the period of the complaint is from 30 December 2003 up to and including the events in November 2005. At the hearing, the applicant indicated she was no longer pursuing the allegations in her Amended Points of Claim relating to the conduct that occurred from 30 December 2003, and the conduct in November 2005. Our conclusion is that the period of the complaint was determined at the time the consent order was made on 25 May 2006. When the applicant indicated at the hearing that she was no longer pursuing the allegations relating to conduct occurring in November 2005, we do not see this as altering the period of the complaint as determined by the consent order.

10 The applicant’s remaining claims, as set out in the Amended Points of Claim, are that:

(a) Loss of regular overtime, weekend and shiftwork income

(ii) Prior to the respondent’s unlawful actions in (i) above, the applicant had worked regular shift, weekend and overtime work since the commencement of her employment in 1986.

(iii) The respondent had been made aware of the applicant’s medical condition since it was first diagnosed in January 1991.

(ii) Consequently, the applicant’s opportunities for promotion within the respondent’s service have diminished.

11 The applicant alleges both direct and/or indirect discrimination (s 49B). Her disability is not in issue. The applicant alleges that the respondent has breached s 49D(2) of the Act. The applicant relies on paragraphs (a), (b) or (d) which provide:

(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

(d) by subjecting the employee to any other detriment.

12 The respondent claims that any alleged discriminatory treatment of the applicant was necessary to comply with the Rail Safety (Health Assessment) Guideline 2004, which it submits is an instrument made under an Act. The relevant part of s 54 provides:

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act.

13 Applicant: The applicant’s evidence is that on or about 17 November 2003 she had an epileptic seizure, which she described as occurring at home, although other evidence points to this having occurred at the Leichhardt pool. The applicant stated that she disclosed the seizure to her employer, and that some time later in November 2003 she was told not to perform any duties described as “safety working duties” in her position at North Sydney railway station as a Customer Service Team Leader Qualified (CSTLQ). Annexed to her statement is a Return to Work plan dated 25/11/03 indicating no safe working duties to be undertaken and describing her duties as “barrier duties”(MMD 1). The events that occurred in November 2003 are not within the period of the complaint. However, they do form part of the relevant background and explain why the applicant was undertaking certain duties in the relevant period. The applicant’s evidence is that she was transferred against her wishes from her position at North Sydney railway station in about January 2004, and that from January 2004 to November 2004 she performed relief work not involving “safe working duties”. Her evidence was that she worked for most of this period at West Ryde station.

14 The applicant says that at a meeting on 6 November 2004 she was informed by Tony Lazzarini that she was no longer allowed to work at West Ryde station, and that from that time she has worked at the Accounts Payable section of the Customer Relations Department. She says she was given a new Return to Work Plan dated 8 November 2004 (MMD 2), which stated under duties to avoid “non rail safety work, no work on stations”. The applicant says she protested at the time about the fact that she would be financially disadvantaged from the loss of shift, overtime and weekend payments in accordance with the Master Roster. Her evidence is that there are non-safety critical tasks she could have continued to perform at railway stations rather than being transferred to Customer Relations.

15 Mr Panigiris, an organiser with the Rail Tram and Bus Union, gave evidence on behalf of the applicant. He attended the meeting on 6 November 2004 with the applicant and says that Mr Lazzarini informed the applicant at that meeting that she would be undertaking clerical duties from then on. Mr Panigiris says he protested about removing the applicant from what he considered to be a non-safety critical position in the booking office of West Ryde station. His evidence is that nothing was said at that meeting about the applicant ignoring directions previously given to her regarding only performing non-safety critical duties.

16 Respondent: Ms Koelmeyer, Mr Dawes and Mr Lazzarini gave evidence on behalf of the respondent. Ms Koelmeyer gave evidence about the applicant’s employment with the respondent in her role as Human Resources Manager of Station Operations, a role she has filled since May 2005. Ms Koelmeyer’s statement included as annexures material from the applicant’s file, in particular correspondence regarding medical assessments undertaken and other material. We refer to this material in detail later in these reasons. Mr Dawes is the respondent’s Manager, Health Standards. His statement sets out the manner in which the relevant health guideline was introduced, and annexes the Rail Safety (Health Assessment) Guideline 2004 (the “Guideline”), as well as a RailCorp document entitled Health Assessment Categories of Rail Safety Workers, dated January 2005. We refer to his evidence later in these reasons when considering the Guideline in the context of the s 54 defence.

17 The respondent led oral evidence only from Mr Lazzarini, who was acting in the role of Manager HR, Station Operations in the period October 2004 to May 2005. His current position is that of Regional Business Manager, Illawarra, South Coast. We set out his evidence in detail, as there is no written statement to which we can refer.

18 Mr Lazzarini indicated that some weeks after he started in the HR role he received a medical certificate indicating that the applicant was unfit for duty because of her epilepsy. He said he talked to the relevant Business Manager, Rino Matarazzo, who indicated he knew of the applicant’s epilepsy and had put her on selected duties at North Sydney on a barrier shift, but that did not work out because of animosity from other staff, and she was relocated to West Ryde station. Mr Lazzarini’s understanding was that her position at West Ryde was a ticket selling position. When asked why he became involved, Mr Lazzarini indicated that it was because all staff who were unfit for any reason such as colour vision deficiency or epilepsy were to be taken off stations. When he received the applicant’s medical certificate that diagnosed epilepsy, he arranged a meeting with her around 5 November 2004 to explain that, because of her medical condition, she would no longer be able to work on a station. He says he informed the applicant that, because she was working in the booking office and opened up in the morning, she needed track safety awareness to assist in the event of an emergency, but she was not allowed to carry out such duties. He stated that the applicant then indicated she was doing tasks such as putting people in wheelchairs on trains and flagging trains, and that he was horrified at this and told her that she could not do that because of her medical condition.

19 Mr Lazzarini’s evidence was that it was not negotiable that the applicant would have to come off stations. It was his experience that no one with epilepsy remained on stations. When asked why in his opinion the applicant could not work on a station, Mr Lazzarini responded that work on stations rotated though a range of tasks, and that even on a concourse or a barrier he did not believe it would have been safe. He indicated that it was his understanding that a person with epilepsy would not go back to a station until a doctor said they are fit to carry out safety critical work, that is, they were seizure free for five years. He indicated that he would only look at redeployment at a station for a person with epilepsy once the person had a medical certificate that they could carry out safety critical work.

20 Mr Lazzarini indicated that as a Regional Business Manager he had in the last year been involved in identifying non-safety critical positions. He gave examples of two persons on his line who have a colour vision deficiency. He indicated that they are not eligible for appointment to the position because it rotates through various tasks, and that they were only there because there were vacancies on particular shifts doing that particular job. They were given a position description for a non-safety critical position, after a risk assessment had being done. He indicated that if they did shift work, that would attract shift work payments; however they could not do night shift and there was minimal overtime because they were restricted in the shifts they could perform. Mr Lazzarini stated that the decision had been made to utilize such workers in a non-safety critical role because it was more productive than in an office environment where they were not trained to do office work and did not want to be there.

21 Mr Lazzarini stated that at the time when persons who were considered unfit were being removed from stations, he went to his Manager and also to Julie Wills, then Manager of Safety Strategy, regarding people who were selling tickets in booking offices as to whether they could remain in such positions. He says he was informed that the organisation’s decision was that were to be removed from station work. He gave evidence that he made representations regarding the applicant’s situation as to whether she could continue to work in the booking office and had been told the answer was “no”. He used words to the effect that it was not an option then and not an option now, and that it was not a decision taken lightly. Under cross examination he was asked whether it was his understanding that persons with epilepsy were not allowed to engage in station duties, and Mr Lazzarini replied with words to the effect that this was his understanding, and that he was not aware of any exceptions. He explained the process of risk assessments and placement for persons with colour vision deficiencies. He explained that the organisation has not gone down that track with epilepsy because they saw the risks as too great, and there were significant differences in safety issues between colour vision deficiency and epilepsy.

Findings and Conclusions

22 The applicant’s position. At the hearing, the applicant submitted that there had been a variation to her contract of service in November 2003 as a consequence of which she came to perform different duties from those she was originally employed to perform. The applicant argued that her role was now that of a Customer Service Attendant as a consequence of the variation and that this entailed non-safety critical duties only. The alleged variation is said to have occurred in November 2003, which is outside the period of the complaint. An earlier variation that occurred outside the period of the complaint could still be operative at the commencement of the period of the complaint in December 2003.

23 We have looked at what factual evidence there is to support a claim that a variation has taken place to change her position from Customer Service Team Leader Qualified (CSTLQ) to Customer Service Attendant (CSA). There is some documentary evidence that refers to CSA duties in relation to the applicant. An annexure to the statement of Ms Koelmeyer (JMK 9) records that Ms R Sullivan, the case manager, wrote to Dr Aggarwal in October 2004 indicating that the respondent needed to ascertain if it was safe for the applicant to return to her CSA duties and requested a report commenting on her current condition in relation to her epilepsy and her ability to continue to work as a CSA. The facsimile cover sheet accompanying this letter lists relevant documents forwarded to Dr Aggarwal as including “CSA Role statement (8 pages)” and “Medical standards (5 pages) dated December 2003”. Although the letter refers to enclosing new medical standards and safe working duties, it is not clear what are the medical standards dated December 2003. Copies of the material sent were not included as part of the annexure. The relevant Guideline was not gazetted until 5 May 2004. Mr Dawes’ statement refers to Railcorp’s early introduction of the new National Standard in February 2004,four months earlier than the mandatory July 2004 introduction date for the NSW rail industry.

24 Dr Aggarwal’ s reply to Ms O’ Sullivan dated 26 October 2004 refers to the applicant as having been suspended from safe working duties as a Customer Service Attendant and states:

… The table recommends a seizure free period of 5 years, but a shorter period may be acceptable on the recommendation of a specialist. I would consider this to be 2 years, which is in keeping with RTA driving restrictions.”

25 Another annexure to Ms Koelmeyer’s statement is a copy of the respondent’s file note (dated 5. 11. 2004) of the meeting that took place on that date. It refers to her “RTW as a CSTL”(which presumably means return to work in the position of CSTL), but also to CSA duties when it sets out that “worker upset with whole process and doesn’t understand why she could do CSA duties before, booking office duties up till now and now has to do office work. HR advised that as he is now involved he can’t, duty of care, send her back to stations.”

26 The restrictions imposed after that meeting are recorded in the Return to Work Plan dated 8 November 2004. Her position is recorded as CSTL on the form. It states under the heading “Duties to Avoid” “Non rail safety work, no work on stations.” It is unclear why at this point the return to work documentation would record non-rail safety work as duties to avoid. It records the “RTW goal / expected completion date: ordinary duties (pre injury) 15 November 2005”. This is two years from the seizure in November 2003.

27 In a letter from Mr Lazzarini to the applicant dated 8 November 2004 following on from the 5 November 2004 meeting, he refers to the applicant as being “relocated” and as not performing safe working duties while on suitable duties (MMD3). The applicant also tendered a Memorandum dated 17 March 2005 addressed to her from Tony Eid, General Manager, Station Operations (Exhibit C), which refers to her having been “temporarily removed from your substantive position.”

28 A letter from Dr Aggarwal dated 26 April 2005 to the respondent (JMK 13) states that the applicant “should be able to return to previous duties as platform attendant” once she is seizure free for 2 years on 15 November 2005.

29 Dr Aggarwal wrote to the respondent on 15 November 2005 (JMK 14) indicating that the applicant was fit for duty, subject to regular specialist review, as she had been seizure free for 2 years. He said it would be reasonable for her to return to her previous duties as a platform attendant. The respondent then wrote to Dr Aggarwal indicating that the medical criteria required a person to be seizure free for 5 years, and asking whether he considered there to be exceptional circumstances existing to warrant departure from the 5 year period. The Guideline provides that a shorter period may be accepted on the recommendation of a physician experienced in the management of epilepsy. This letter to Dr Aggarwal dated 22 December 2005 (JMK 17) contains inconsistencies regarding Ms Dunne’s position. The letter states that it attaches a position description for Ms Dunne’s role as a Customer Service Attendant, but appears to provide an actual role statement for a Customer Service Team Leader. The letter then states:

We note that you opine that following the seizure free period of two years, the applicant is to be “fit for duty as a “platform attendant”. We note that this is a departure form the standard seizure free period required under the Guideline and that the applicant is not a platform attendant, but rather a Customer Service Attendant Team Leader Qualified.

30 Dr Aggarwal responded to this request on 23 December 2005 indicating that no departure from the ordinary seizure free period was warranted.

31 A memorandum to the applicant from Ms Koelmeyer dated 1 February 2006 (JMK 19) referred to the Health Quest examination conducted on 17 November 2005. Ms Koelmeyer advised the applicant that as she did not meet the health standards for her position of a CSTLQ, she had been removed from her normal position.

32 There is no evidence that the respondent proposed, or that the applicant agreed to, any variation of her employment. Indeed, when the applicant gave oral evidence at the hearing she described her position specifically as Customer Service Team Leader Qualified.

33 The documents referred to above make inconsistent references to the applicant’s position as either CSTLQ or CSA. We find that the applicant formally retained her position of CSTLQ, although throughout the period of the complaint she was performing other duties. Our conclusion on the facts is that up until about 5 November 2004, the applicant had been placed by the respondent on alternative duties on railway stations, as set out in the return to work documentation, as a consequence of events that occurred outside the period of the complaint. Our conclusion is that at the time of the meeting on or around 5 November 2004 she was working at West Ryde station performing alternative duties that involved selling tickets in the booking office. Our view is that nothing turns on whether, as a consequence of what occurred in November 2004, we described the applicant as being “temporarily removed”, “moved” “relocated”, or “given other alternative duties”.

34 Consequence of meeting in or around 5 November 2004:We find that on or around 5 November 2004 further limitations were imposed by the respondent on the duties the applicant could undertake. This is recorded in the return to work documentation as “no work on stations”. This corresponds with the respondent’s own file note for the meeting that says that the applicant was told that she was “immediately removed from station duties and all SWD. Stn work not an option”. This accords with the evidence given by Mr Lazzarini in his evidence about removing her from working on a station, and that it was not an option for the applicant to remain in the booking office at West Ryde. We find that in early November 2004 the applicant was moved from the duties she was undertaking at the booking office at West Ryde station to other alternative duties in the accounts payable section of Customer Relations. In our view this occurred as a direct result of the decision made by the respondent to remove the applicant from any work on stations.

35 Medical assessment in November 2004. The trail of documents referred to above shows that the crucial medical assessment conducted in October 2004, which was the trigger for the alleged discriminatory treatment, was not done in relation to her substantive position, but that she was assessed against medical criteria for a CSA role. We discuss later in these reasons whether a CSA role may or may not be a safety critical position.

36 Non-safety critical positions. The applicant’s evidence is that there are non-safety critical tasks she could have continued to perform at railway stations rather than being transferred to Customer Relations. She annexed to her statement correspondence between Mr Greenhalgh (Manager Industrial Relations, Customer Services, RailCorp) and Mr Panigiris (MMD 4 to MMD 8), which deals with the process followed by Rail Corp in managing light duty employees on City Rail stations. The letter from Mr Greenhalgh to Mr Panigiris dated 23 May 2005 (MMD4) states that station operations are currently managing a number of staff who are off roster due to colour deficiency, medical conditions (liability and non-liability) and drug and alcohol issues. He outlines how a risk assessment process had identified a number of positions at the majority of stations that could be classified as non-safety critical and are suitable for placement of staff who are colour deficient or have other medical restrictions. He identified those positions as (1) AT gate operator (2) Sales Account Team leader (3) Salesperson (4) Dedicated Cleaner (5) CCTV Operator. Mr Greenhalgh’s letter also indicates that position descriptions and duty statements have been developed for these positions. He then details the process for placement of staff in non-safety critical positions.

37 Mr Panigiris gave evidence about the discussions he was involved in with RailCorp in the second half of 2004 to identify non-safety critical positions that could be performed by RailCorp employees affected by various disabilities and health issues. He indicated that in his opinion 80% of railway stations would have non-safety critical roles. Ms Koelmeyer stated that a person with epilepsy would not be put in such a role. She indicated that this was as a result of a blanket decision not to put persons with epilepsy back in stations. She said this was an instruction from Mr Welsh. She stated that in her opinion such a person could not work unsupervised because it was necessary to ensure that they did not undertake safety critical duties. However, the applicant was placed in a non-safety critical role at Olympic Park station for the duration of the Easter Show in April 2005 (see Exhibit C).

38 The correspondence between Mr Greenhalgh and Mr Panigiris is dated 23 May 2005. The risk assessments undertaken by the Respondent as part of the process, as well as the duty statements for the non-safety critical positions, are dated March 2005. The applicant was provided with an opportunity to work in a non-safety critical role on a station in April 2005. The inference we draw from the evidence is that this particular process for placing persons on light duties back on stations was not in place in November 2004. The only contrary evidence was that Ms Koelmeyer thought some people with colour vision deficiencies had been in non-safety critical roles on stations since September 2004. The respondent’s document entitled Health Assessment Categories of Rail Safety Workers, is dated January 2005. Our conclusion is that it would be unlikely that a process for placing people with health restrictions back on stations would have commenced before the respondent had completed the process of categorising rail safety workers for the purpose of identifying the appropriate level of health assessment. We also think that had the process been in place at the time the applicant made her complaint, she would have made some mention of it in the complaint lodged with the ADB.

The alleged discriminatory conduct

39 In the Amended Points of Claim, paragraph 4(a) (i) refers to the respondent having unilaterally removed the applicant from the position of Customer Service Team Leader Qualified (CSTLQ) and transferred her to the position of Accounts Payable Clerk. Paragraph 4(b)(i) refers to the respondent having unreasonably and unilaterally transferred the applicant from active duties at train stations to a desk job in the city. Both these paragraphs refer to the event that the applicant described in her complaint to the ADB in December 2004 as occurring around 6 November 2004, when she says she was informed that she could not work on railway stations at all because of her condition, and that as a result she was put into an office job. Her complaint makes clear that an aspect of her claim involves an allegation that she was not permitted to work on stations any longer. From the time the complaint was lodged by the applicant in December 2004 the respondent was on notice that she was complaining about the decision to remove her from station work. The respondent’s own file note for the meeting in November 2004 specifically refers to “removal from station duties.” Mr Lazzarini gave extensive evidence about the removal from stations of people who were regarded as unfit for duty.

40 As we indicated earlier, our conclusion on the evidence is that in November 2004 the applicant was moved from the duties she was undertaking at the booking office at West Ryde station to other alternative duties as a direct result of the decision made by the respondent to remove the applicant from any work on stations. It would be possible to consider this as divided into two separate allegations namely the applicant was (1) moved from working on a station and (2) placed in other alternative duties working in an office environment. However, having considered the evidence as a whole, we see these as part and parcel of the one allegation. Once the respondent made the decision that the applicant could not work on stations, the implementation of this decision involved a move from one type of alternative duties to another, that is the move from West Ryde station to the Customer Relations Department. The question is whether the respondent engaged in any unlawful discrimination in moving the applicant from one type of duties to another.

41 The applicant alleges that there has been a continuing contravention of the Act. She alleges that there was a discrete act of removing her from station duties in November 2004 and that this continues until the present time. Counsel for the applicant pointed to what was done to find non-safety critical positions back on stations for other people with medical restrictions, such as those with colour vision deficiency, cardiovascular conditions and drug and alcohol issues. Our conclusion from the evidence is that what occurred in relation to these people took place after the applicant lodged her complaint.

42 Counsel for the respondent in her closing submissions stated that the failure to find the applicant a non-safety critical position was not raised as an act of direct or indirect discrimination. The respondent submits that the events of November 2004 are a discrete act, and do not involve any on-going contravention. As the Appeal Panel stated in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [86], “a continuing contravention of the Act is said to occur when, following a discrete act, a state of affairs continues”. The respondent also relies on the finding by the Appeal Panel in Bonella that a complaint cannot include conduct, which is continuous or ongoing after the complaint has been made. The respondent submits that the complaint was amended to include specific conduct in November 2005, but that there was no application to amend the complaint to include everything that occurred up to late November 2005.

43 We find that in November 2004 there was a discrete act of moving the applicant from the limited duties she was undertaking at a station. We found this to be as a consequence of a decision to remove the applicant from station work. The decision that the applicant was not to work on stations may have continued to operate throughout the period of the complaint. However, the fact that she worked in April 2005 in a non-safety critical role on a station suggests that this was not an absolute ban. We do not regard the discrete act that occurred in November 2004 as giving rise to a continuing state of affairs that includes the failure to find the applicant a non-safety critical role on a station when a process was established for this some time after her complaint was lodged.

44 The applicant’s allegation appears to be that the respondent did not take the same positive action to deal with the applicant’s situation that it took for others with health restrictions. Our conclusion is that if what the applicant alleges is that she was treated less favourably than others in the allocation of non safety critical positions when a process was established for this (as set out in the correspondence annexed at MMD4-MMD8), then that should have been presented as a separate allegation of direct or indirect discrimination. It is not in our view a state of affairs that continues on from what occurred in November 2004. In any event, we have found that this process for placement of staff in such positions was in all likelihood not in place at the time the applicant made her complaint. To include this conduct would require the complaint to be amended. As we have set out earlier in these reasons, the consent order made amending the complaint was limited to 2 issues, and made no mention of any continuous or on-going conduct, or the failure to allocate non-safety critical duties. Having looked at the original complaint to the ADB, the Amended Points of Claim, and the consent order made on 25 May 2006 amending the complaint, we conclude that the complaint does not include a separate allegation that the respondent discriminated against the applicant in the allocation of non-safety critical positions on stations when a process for this was established some time in early 2005.

Direct Discrimination

45 The two components of direct discrimination are differential treatment and causation (Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). The first consideration is whether the applicant has been treated less favourably. In determining whether she has been treated less favourably a comparison is made with the treatment of a person without the applicant’s disability in the same or similar circumstances. The comparator may be a real or a hypothetical person. If less favourable treatment is established, it is then a question of whether that treatment is causally connected to the prohibited ground. Where the comparator is a hypothetical person the two questions may become a single enquiry. Dutt v Central Coast Area Health Service [2002] NSW ADT 133. The applicant did not identify an actual comparator. Therefore it is necessary to consider how the respondent would have treated a hypothetical person without the applicant’s disability in the same or similar circumstances.

46 An important consideration is what are the same or materially similar circumstances for the purpose of such a comparison. These have been referred to as “all of the objective features which surround the actual or intended treatment of the disabled person” (Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133).

47 In its Points of Defence the respondent claims that the relevant circumstances include failing to satisfy the medical criteria under the Rail Safety (Health Assessment) Guideline 2004. If failure to meet the medical criteria were a relevant circumstance, it would result in a comparison of the treatment of the applicant not with a person without her disability, but with other persons who may have a different disability that led to them not meeting the medical criteria under the Guideline. Such conditions covered by the medical criteria include cardiovascular diseases, diabetes, cancer, impairment by illicit drugs or dependence, hearing loss and a range of other conditions. As the Tribunal indicated in Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 at [82]:

Purvis

those

48 In addition, if we look at the Purvis example, the violent actions of the child in question were found to be part of the relevant circumstances. This was based in part on a conclusion that it would be a startling result if an employer, educational authority or other person subject to the Act could not require compliance with the criminal law. However, the relevant circumstances were not found to be that the actions were a breach of the criminal law. Such a finding would require an investigation of the facts and an interpretation of the applicable criminal law. In these proceedings, the fact that the Rail Safety (Health Assessment) Guideline 2004 specifies standards relating to the health and fitness of railway employee is a relevant circumstance. However, to say there has been a failure to satisfy the medical criteria under the Guideline involves questions of fact and interpretation of the Guideline. We set out in detail later in these reasons a discussion of whether the respondent has shown that the applicant failed to satisfy the medical criteria under the Guideline. Given the way in which the medical assessment that triggered her removal was conducted, and the way in which the Guideline was applied to the applicant’s particular situation, we do not find that the relevant circumstances include failing to satisfy the medical criteria under the Rail Safety (Health Assessment) Guideline 2004.

49 In looking at the facts before us, we regard the relevant “circumstances attending the treatment given” as being in the first instance the nature of the work the applicant was undertaking. As we have found earlier the applicant’s substantive position was CSTLQ, but she was at the relevant time undertaking alternative duties that did not correspond to the duties of her substantive position. She was working in a booking office at a railway station, with the restriction that she perform no safe working duties. We also regard as a relevant circumstance that the Rail Safety (Health Assessment) Guideline 2004 specifies standards relating to the health and fitness of railway employees. It is in these circumstances that a comparison must be made with the treatment that would be given to a person without the applicant’s disability.

Causation

50 The relevant enquiry was framed by the High Court in Purvis (2003) ALR133 at 187, in the following terms: “... the central question will always be - why was the aggrieved person treated as he or she was? ”

Allegation: Move from working at a station to an office job in November 2004.

51 The appropriate enquiry is to ask why the applicant was moved from working at a station to an office job in November 2004. Was this because of her epilepsy? Then it is necessary to consider how the respondent would have treated a hypothetical person without the applicant’s disability in the same or similar circumstances. Looking at all the evidence, and in particular the oral evidence of Mr Lazzarini the answer to whether the applicant was treated in this way because of her epilepsy is clearly “yes”. The evidence points to the fact that it was because of her epilepsy that she was moved. Mr Lazzarini‘s evidence was that once he was aware from her medical report of her epilepsy he took action to remove her from station work. The file note for that meeting confirms this. The evidence of Mr Lazzarini and Ms Koelmeyer points to a blanket rule that no-one with epilepsy was allowed to remain on a station.

52 The situation may have been different had there been any evidence that the alternative duties that the applicant was undertaking were no longer available, or there had been some other reason to make different arrangements for other alternative duties. Mr Lazzarini indicated in his evidence that at the meeting around 5 November 2004 the applicant told him that she was doing tasks such as putting people in wheelchairs on trains and flagging trains, and that he was horrified at this and told her that she could not do that because of her medical condition. This suggested that a further reason for moving the applicant was that the applicant was alleged to have been undertaking inappropriate duties, beyond the limitations placed on her work. Our conclusion is that, had this been a major consideration, it would have been recorded in the file note for the meeting on 5 November 2004. Mr Panigiris’ evidence was that it was not mentioned at the meeting. The applicant’s evidence was that she had never had any complaints about her work. Even if there were such a consideration, it is clear that the applicant was moved because of her disability. Mr Lazzarini also raised the need for the applicant to have track safety awareness in case of an emergency to work in the booking office. Again we see her epilepsy as the reason for the removal, rather then a requirement for track safety awareness. A subsequent Railcorp risk assessment document also indicates that track safety awareness is not a component of the safety system response in the event of an emergency (See MMD8).

53 Having shown that the treatment she received was on the grounds of her disability, the applicant must establish that she was treated objectively less favourably than a hypothetical person without her disability would have been treated in the same or similar circumstances. We have considered the situation of a hypothetical person who does not have epilepsy, who formally held the position of CSTLQ but who was undertaking duties in a booking office at a metropolitan railway station in a context where the Rail Safety (Health Assessment) Guideline 2004 specifies standards relating to the health and fitness of rail safety workers. We find that a hypothetical comparator without epilepsy who was undertaking alternative duties of the same kind as the applicant on a railway station, in the context of the standards set by the Guideline, would not have been moved from working on a station to an office job. There is no evidence that points to any reason for such a move to occur, other than the applicant’s epilepsy. We find that in relation to the allegation that the applicant was moved from working on a station to an office job, the claim of direct discrimination is made out. We find that the respondent directly discriminated against the applicant within the terms of s 49B of the Act.

Indirect discrimination

54 Given our finding on direct discrimination, it is not strictly necessary for us to consider the alternative argument that the respondent indirectly discriminated against the applicant. However, give the way a number of issues arose during the hearing, we regard it as appropriate to comment on a number of matters in relation to the claim of indirect discrimination.

55 The question of what is the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (see Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 at p 185). A requirement or condition must be neutral on its face and must be one with which the entire group to which it is directed must comply (Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185-191.

56 During the course of the hearing the applicant sought to amend its Amended Points of Claim to change the requirement for the purpose of indirect discrimination. The requirement had been framed as: “The relevant requirement imposed by the Respondent was that the Applicant satisfy certain medical criteria in order to perform safety critical duties.” The Applicant sought to delete the words “safety critical duties” and replace those with the words “station duties”. The Tribunal allowed this amendment, and we have already provided written reasons for doing so.

57 Subsequent to this amendment the applicant did not clarify what the “certain medical criteria” were for the purpose of the indirect discrimination claim. There are a number of possible interpretations. First, the medical criteria may have been the specific medical criteria applicable to the condition of epilepsy. However, that would not be a neutral requirement that is directed to the entire group (See Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51). Another alternative is that the “certain medical criteria” refers to all the requirements for fitness for duty set out in the Guideline. If this were the case, it is important then to know who was in the group to which the requirement was directed, and the potential differences in the rate of compliance. We do not regard the applicant as having identified a condition or requirement with adequate precision. This makes the question of compliance by the applicant and others very difficult to ascertain.

58 In addition, the applicant presented no specific evidence on whether a substantially higher proportion of persons without the applicant’s disability complies or are able to comply with the requirement. A number of steps are involved in this process (Wollongong City Council v Bonella [2002] NSWADTAP 26). First is the identification of the relevant base group or pool of people to whom the requirement applies. No clear evidence was presented on this crucial point. The next step is identifying those within that group who do not have the applicant’s disability, and who could comply with the requirement. No evidence was provided on this point. Nor was there any specific evidence presented about those within the group with the applicant’s disability who could comply with the requirement. There were a number of references to a person working at Strathfield station, who may or may not have been recently removed from his position due to an epileptic seizure. However there was no conclusive evidence on this point. It is not uncommon for there to be a lack of statistical evidence on such issues, and the Tribunal can take judicial notice of what might be regarded as common knowledge in terms of the relevant rates of compliance (Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41; Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258). However, this is not such a case. Without evidence of who is in the base group it is difficult to rely on common knowledge. The problem is made more difficult where detailed medical criteria are involved. In these circumstances, we find that the claim based on indirect discrimination is not made out.

Discrimination in terms or conditions of employment; denial of opportunities for promotion or to other benefits; and/ or subjecting the employee to any other detriment.

59 The applicant claims that she was afforded less favourable terms and conditions of employment pursuant to s 49D(2)(a), denied access to opportunities for promotion and other benefits associated with employment pursuant to s 49D(2)(b) or alternatively that she was subject to a detriment pursuant to s49D(2)(d). She particularises this as a loss of regular overtime, weekend and shiftwork income, as well as a loss of promotional opportunities.

60 The “terms and conditions of employment which the employer affords the employee” are all the legal rights given to an employee, and the corresponding legal obligations cast upon an employer by various sources, including express and implied terms under the contract of employment, collective agreements, statutes, industrial awards and custom and practice. (See Bonella v Wollongong City Council [2001 NSWADT 194). The applicant did not present any evidence of what terms and conditions of employment, established as a legal right or obligation, were involved in any alleged less favourable treatment of the applicant. In addition, we could find no evidence to substantiate a claim that the applicant was denied promotional opportunities.

61 Mr Lazzarini’s evidence was that the decision had been made to utilise workers in non-safety critical roles back on stations, because they were more productive than in an office environment, where they were not trained to do office work and did not want to be there. The letter from Mr Greenhalgh to Mr Panigiris dated 23 May 2005 that deals with the process for placement of such employees at City rail stations also refers to providing “meaningful work” to such employees. We find that the respondent, by moving the applicant from working at West Ryde station to an office job, denied her the opportunity to be engaged “productively” as described by Mr Lazzarini. The applicant’s evidence, which we accepted, is that she was distressed by the move away from station work, being work that she had undertaken since 1986. Her evidence shows that she has consistently sought to return to work on stations and did not want to be in an office job. She was concerned from the time she lodged her complaint about the financial consequences of the move away from station work, because of the loss of the opportunity to earn shift, overtime and weekend rates. For the applicant, work in an office environment presented no opportunity for shift, overtime and weekend rates. Although there was no guarantee of these with the work she was undertaking at West Ryde station, at the very least it presented a limited opportunity, whereas office work presented no opportunity.

62 We find that the respondent has denied the applicant the opportunity to work on stations, as well as denying her the possibility of supplementing her income by earning shift, overtime and weekend rates. We find this constituted a detriment. In Pignat v Richmond Valley Council [2005] NSWADT 162 the Tribunal considered the meaning of meaning of the “detriment” at [11-12].

Sivananthan v Commissioner of Police, NSW Police Service

63 In the case of Perlidis v Brambles Security Services Limited Trading as Brambles Armoured [2003 NSWADT 11 at [31] the Tribunal found “Mr Perlidis was subjected to the stress and financial uncertainty of being denied the opportunity to supplement his income through overtime earnings. This constitutes real detriment.” In the present case, we find that the respondent’s discriminatory treatment breached s 49D(2)(d) of the Act as coming with the terms of “subjecting the employee to any other detriment.”

Section 54 Defence

64 The respondent claims that it is entitled to rely on the defence in s 54 of the Act. The onus of proving this rests with the respondent (s 104). The respondent claims that any alleged discriminatory treatment of the applicant was necessary to comply with the Rail Safety (Health Assessment) Guideline 2004, which it says is an instrument made under an Act.

65 The approach that the Tribunal has taken to the interpretation of s 54 is summarised in Lavery v Commissioner of Fire Brigades [2003] ADT 93at [80 –81]

… in order for the respondent to successfully rely upon the "protective cloak" provided by s 54 it seems necessary to establish that the requirements of the other Act are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination. Whether particular conduct attracts the "protective cloak" of s 54 appears to be a mixed question of fact and law; the construction of the "requirements of the other Act" is a question of law, and whether the respondent was obliged to act as he/she did in order to comply with the requirements of the other Act is a question of fact … If a respondent has a discretion or choice concerning the manner in which he/she complies with a statutory obligation then it cannot be said that the particular obligation is both mandatory and specific.

66 It is necessary to set out in some detail the scheme for health assessment set up under the Guideline, and the obligations this imposes on the respondent. Section 41 of the Rail Safety Act 2002 provides:

(2) An accredited person must not employ a person as a railway employee unless:

(b) the accredited person complies with any standard contained in guidelines issued under this section that are applicable to the accredited person.

67 On 5 May 2004 the Independent Transport Safety and Reliability Regulator (the ITSRR), pursuant to section 50 of the Rail Safety (General) Regulation 2003, issued the Rail Safety (Health Assessment) Guideline 2004 – No1, containing the standards specified in Schedule 1.The Explanatory Note accompanying the Guideline states:

The object of this Guideline is to specify standards relating to the health and fitness of railway employees. The standard contained in the Guideline are the “National Standard for the Assessment of Rail Safety Workers” being standards developed by the National Transport Commission of Australia (NTC). NSW is adopting the NTC Standards as standards for the purposes of the Clause 50 of the Rail Safety (General) Regulation 2003.

68 The terms “Guideline” and “Standard” are both used to describe the prescribed requirements relating to health and fitness of railway employees. The standards are specified in Schedule1 of the Guideline, which is made up of a number of volumes. Volume 1, dealing with Management Systems, is described in part as follows:

Volume 1 contains provisions for a risk management approach to monitoring rail safety worker health and fitness. This includes a framework for analysing and categorising the risks associated with rail safety tasks and assigning workers to a level of health assessment commensurate with the risks.

69 Volume 2 deals with assessment procedures and medical criteria for judging fitness for rail safety duty to be used by authorised health professionals. Volume 3 is a guideline for health risk management. Volume 3 is stated to support the standard, but is not formally part of the Standard. It provides practical guidance with examples for rail organisations to perform health assessments for rail safety work.

70 The Guideline applies to all “rail safety work” as defined by the Rail Safety Act 2002. Under the Guideline, “rail safety work’ is then divided into two risk categories of safety critical work and non-safety critical work. A safety critical worker is a worker whose action or inaction, due to ill health, may lead directly to a serious incident affecting the public or the rail network. “Serious incident” means an accident or incident that affects the public or the network resulting in such consequences as the death of a person; incapacitating injury to a person; a collision or a derailment involving rolling stock that results in significant damage; or any other occurrence, which results in significant property damage.

71 The category of safety critical work is then divided into two risk categories of High Level Safety Critical Worker (category 1) and Safety Critical Worker (category 2). In the Guideline “Around the Track Personnel”(ATTP) is the term used to describe workers who perform non-safety critical tasks on or near the track as defined. There are two risk categories for non-safety critical workers (category 3 and 4).

72 Volume 2 of the Guideline outlines the procedures for conducting health assessments and provides the medical criteria for judging fitness for duty for safety critical and non-safety critical workers. The Guideline states (at p 10) that “after assigning a risk category to the worker, the employer will match the worker to the appropriate level of health assessment before referral to the health assessment”. The Guideline sets out (at pps 49-52) the medical criteria for safety critical workers with epilepsy. It states, “a confirmed diagnosis of epilepsy will mean that the criteria for fit for duty are not met.” A table sets out the recommended seizure free period, with a shorter period possible on the recommendation of a specialist. In accordance with this table a recommendation of “Fit for duty subject to review” can be made where the worker has been seizure free for five years, as well as satisfying other criteria. A separate set of medical criteria applies to non safety critical workers.

73 Volume 3 is entitled Guideline for Health Risk Management. It provides a guide to performing risk assessments of the tasks involved in rail safety work. The Guideline sets out that the risk assessment is to be task based, not based on formal grades or job classifications. It states that a risk categorisation should be assigned to a grade or job classification to match the tasks assessed as having the highest risk. It indicates that having identified tasks; the test is then applied of whether any aspect of the task identified could ill health lead directly to a serious incident on the rail network.

74 As part of the risk assessment and categorisation process, RailCorp has produced a document entitled Health Assessment Categories of Rail Safety Workers, with the “owner” of the document being John Dawes. The document is dated January 2005.The Foreword to the document states:

Human Resource Officers and authorised health professionals are required to consult this manual to decide upon the levels of health assessment required or to understand the tasks safety workers are required to perform or the risks associated with these tasks.

75 The document outlines the risk analysis process (at p 6) and summaries the risk categories (at p 7). It states that where a job is multi-skilled the task with the highest level of risk should determine the health assessment. In this summary a CSTLQ is in category 2-health assessment for safety critical work. CSAQ is also Category 2. Other Customer Services Attendants (not specified above) are category 3, which is described as “Not safety critical work ATTP.”

76 Under the heading 7.0 Station operations (at p 58) there appears the following:

With the exception of the functions listed separately, all station operations operational personnel must be able to assist in the case of an emergency and so are required to be able to go on or about the track. These staff are categorised as ATTP category 3. Examples are Customer Service Attendants (CSAs) and sales personnel.

77 Under cross examination, Mr Dawes, the respondent’s Manager, Health Standards, confirmed that in RailCorp’s Health Assessment Categories of Rail Safety Workers (page 6, Diagram 1 – The Risk Analysis Process), Category 1 and Category 2 risk categories are identified as safety critical and applying to safety critical workers. The risk categories 3 and 4 are identified as around the track (ATTP) and not safety critical. On the following page Diagram 2 sets out the categories of tasks performed, and identifies CSTLQ as category 2. When asked about Customer Service Attendants, and whether or not they are safety critical, Mr Dawes indicated that CSA Q was listed in category 2. When asked whether other CSA roles were in Category 3, Mr Dawes said “No”, and referred to the part 7.0 of the documents discussing station operations set out above.

78 The Tribunal asked Mr Dawes if all positions on stations are safety critical. Mr Dawes indicated that the Rail Safety Act 2002 (NSW) defines rail safety work to include work to do with the operation and movement of a train, which the majority of station work involves. Then it is a question of asking whether for any aspect of the task performed by a worker, could the ill health of the worker lead to a serious incident, in accordance with the definition of serious incident and safety critical worker. If the answer is yes, then it is safety critical work. Mr Dawes gave as an example of non-safety critical work the giving right of way hand signals. He said that it is rail safety work under the Act, but not safety critical work, and therefore a category 3 health assessment applies. He also gave the example of preparing railway timetables, which is regarded as railway safety work because it has to do with the operation or movement of trains. However as it is performed in an office environment and not near running line there is no issue of personal safety and the lowest category 4 health assessment applies.

79 Mr Dawes confirmed in his oral evidence that there were such things as non-safety critical positions. Non safety critical positions are either rail safety positions that are non-safety critical or other positions where rail safety work is not performed at all. He indicated that he was aware of persons who had been redeployed where they did not meet the Guideline into another position that was not railway safety work. Under cross-examination, he also indicated that he would have expected a risk assessment relating to non-safety critical positions to have been done in relation to the applicant.

Move from working at a station to an office job in November 2004.

80 Section 41 of the Rail Safety Act2002 provides an accredited person must not employ a person as a railway employee unless the employee meets any standard contained in guidelines issued under this section that is applicable to the employee. The key aspect of this is that the particular standard must be applicable to the employee. The respondent argued that it had no choice but to remove the applicant from her role because her position was as a CSTLQ. The Applicant contends that her role was as a CSA, and that this was a non-safety critical role.

81 Looking at all the evidence, we are not satisfied that it was mandatory to move the applicant from working at a station to an office job in November 2004 as a consequence of any obligations that may have been imposed on the respondent by the Guideline. There are a number of significant flaws in the process undertaken by the respondent by which it reached its conclusion that the applicant failed to meet the medical criteria set out in the Guideline. First, if we look at the way in which the medical assessment that triggered the decision to remove her from station duties was arranged, the respondent asked Dr Aggarwal to assess her for a CSA position. However, the respondent contends that she was a CSTLQ at the time, and relies on the risk categorisation for the CSTLQ position to justify the need to move the applicant. The respondent did not clear up this mistake until November 2005. As the material above indicates, the position of CSA may fall into either safety critical or non-safety critical, depending on the level involved. Although the respondent relied on what was recorded in their health assessment document at 7.0 dealing with station operations, we do not find that this indicates that a CSA was at all times a safety critical position. Indeed the paragraph at 7.0 seems to indicate otherwise, that is, that CSA not otherwise specified were ATTP.

82 The second aspect of the process with respect to the medical assessment that raises concerns is that the evidence show that what was sent to Dr Aggarwal in October 2004 was “Medical standards (5 pages) dated December 2003.” The Guideline was introduced in May 2004.

83 Thirdly, the Guideline sets out the medical criteria for safety critical workers with epilepsy. Therefore, for this to be applicable, it is necessary to show that the applicant was a safety critical worker at the time the medical examination was undertaken. As we have already indicated, the material sent to Dr Aggarwal referred to a CSA position. The respondent relies on the fact that the applicant’s substantive position was a CSTLQ, and that in accordance with its documentation this position is a category 2. However, the document on which the respondent relies to show that CSTLQ was safety critical work is its Health Assessment Categories of Rail Safety Workers, dated January 2005. This documentation does not indicate what process was being used, if any, to determine appropriate risk categories and the appropriate health assessment for such categories in November 2004 when the relevant health assessment by Dr Aggarwal was undertaken.

84 The method for assessing the risks and assigning risk categories to particular tasks is a discretionary aspect of the process. The respondent has compiled its Health Assessment Categories of Rail Safety Workers in response to the need for a risk assessment and categorisation to be undertaken. In November 2004 the respondent may have been determining who was undertaking safety critical work for the purpose of the Guideline by other means, by this is not apparent.

85 In our view, the evidence shows that there was a step missing in the process in November 2004, that is, matching the level of health assessment required with the tasks performed by the applicant and the risk associated with these tasks. We find that there was a medical assessment that concluded that the applicant was unfit for duty, but that it assumed the work was safety critical. However the duties that were nominated for the purpose of the medical assessment (CSA duties) were not clearly safety critical. Nevertheless, the medical criteria for safety critical workers were then applied to the applicant. This is consistent with the evidence that the respondent adopted an approach that any person who was considered unfit for duty would be removed not simply from safety critical work, but from all work on stations. The evidence of Mr Lazzarini on this point was that although he made enquiries about people remaining in booking offices, he was told there was no option for them to remain on stations. Mr Lazzarini said he would not consider putting a person with epilepsy back on station unless he was satisfied that a medical certificate showed that the person was seizure free for 5 years. Mr Lazzarini evidence was that this was required by a duty of care. In this sense, the medical criteria for safety critical workers were being applied not to safety critical work, but to all work on stations.

86 The conclusion that we have reached is that irrespective of the tasks the applicant was performing in November 2004, she would have been moved from working on a station to an office job because of her epilepsy. In this respect the respondent went beyond what was required by the Guideline. In these circumstances it was neither necessary nor mandatory for the respondent to move the applicant from working on a station to an office job. The respondent has not made out the defence under s 54.

87 The respondent argued that what was being asked was that a special position be created for the applicant, in circumstances where she was not able to do the inherent requirements of the job. We do not find that to be the case. In this situation, it was a decision to move her from one set of alternative duties that the respondent had previously place her in to a different set of alternative duties. Cases such as Cosmo v Qantas Airways Ltd [2002] FCA 640; [2002] FCAFC 425 raise quite different consideration where a termination has taken place, and the question of inherent requirements is relevant.

Relief

88 Having found that the respondent breached s 49(2) (d) of the Act, and that the defence pursuant to s 54 is not made out, we now consider the question of appropriate relief, if any, pursuant to s 108 of the Act. On the final day of the hearing the applicant sought to amend the relief. Counsel for the applicant had foreshadowed that the claim for economic loss would need to be updated. Counsel for the respondent welcomed some clarification of the claim for economic loss, although submitted that the amendments changed the claim somewhat. Two other amendments were sought by the applicant, being changes to the reinstatement claim, and the addition of a claim with respect to superannuation (although the latter was not then pursued). Given the lateness of the changes proposed we accepted them as submissions only.

89 Reinstatement and/or re-employment: The powers of the Tribunal extend to an order for re-instatement or re-employment (see Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 69-70. The applicant now seeks reinstatement to “station duties”. In the alternative, the applicant seeks an order for re-employment to another position on terms and conditions no less favourable than those on which the applicant was employed before the acts of unlawful discrimination.

90 The applicant is no longer pursuing an order for reinstatement to the CSTLQ position. Nor does the applicant specify reinstatement to a CSA position, although she argued that her position was varied to that of Customer Service Attendant (CSA), an argument we did not accept. The applicant’s second statement dated 20 July 2006 refers to her efforts to obtain work back on a station, including a vacancy in March 2006 at West Ryde station. On the final day of the hearing, Counsel for the applicant sought to summons Mr Girrelly, who may be the station master at West Ryde station, about the existence of a non-safety critical CSA position at West Ryde station. However, given the lateness of this request, it was declined.

91 The respondent opposed any order for re-instatement or re-employment as a remedy more appropriate to a situation where a person’s employment has been terminated. The respondent also opposed such remedies on the basis that the applicant’s situation is being managed in accordance with the enterprise agreement (Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005), and that a remedy should not over-ride the enterprise agreement. The relevant parts of the agreement dealing with the health standard are as follows:

38.7 Where an employee is determined by medical advice as permanently unfit for their normal duties, the employer will attempt to place the employee into a suitable alternative position and the employee will thereafter be paid the rate of pay of the position into which they have been placed. Alternatively, if no suitable alternative positions are available, medical retirement procedures will commence. The employee will be able to use his/her sick leave entitlements, annual leave and long service leave accruals prior to the medical retirement taking effect.

92 The applicant tendered correspondence between Mr Greenlagh and Mr Panigiris dated 22 February 2006 (Exhibit I), which was admitted on the condition that the related correspondence was included (letter to Mr Greenlagh from Mr Panigiris dated 31 January 2006; Exhibit H), and that the respondent have the opportunity to further cross-examine Mr Panigiris. Both these occurred. The events described in these letters deal with current negotiations regarding the applicant’s position. Mr Greenhalgh states in his letter of 22 February 2006:

Ms Dunne has been diagnosed as permanently unfit to return to rail safety work until 2008. An employee with any injury or illness that does not permit the employee to return to their substantive position for in excess of six months is regarded as being permanently unfit and he/she is managed in accordance with relevant policy and EBA provision.

93 We do not have available to us the” relevant policy”. We can only refer to the most recent medical assessment provided to the Tribunal. The Health Quest report (JMK 16) ticked the box “Temporarily unfit for duty, subject to review”. The form has a different box for “ Permanently unfit for duty”, however this was not the category assigned to the applicant.

94 Mr Grennhalgh also states in his letter:

All suitable options for redeployment will be sought for Ms Dunne including any possibility of a non-rail safety critical station position. Any positions identified will require a risk assessment to be conducted prior to any decision being made to redeploy Ms Dune in the position given that her condition has also been identified as an occupational health and safety risk.

95 The discriminatory conduct of the respondent is its actions in moving the applicant from working at a station to an office job in November 2004. Section 108 (2) (c) of the Act enables the Tribunal to order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. We do not find that an order for re-instatement or re-employment is appropriate in the circumstances. The order sought refers to “station duties” which is not an identified position or job to which the applicant could be re-instated. Counsel for the applicant did not identify any particular position to which the applicant should or could be re-employed. At the time the applicant was moved in November 2004 from work at a station to an office job she was undertaking alternative duties at West Ryde station. In the circumstances, we do not regard it as feasible to require the respondent to place the applicant back at West Ryde station undertaking the particular alternative duties she undertook approximately 18 months ago.

96 Damages: The Tribunal may order the respondent to pay the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct. Damages for economic loss and non-economic loss are sought. The applicant bears the onus of proving, on the balance of probabilities, that she has sustained the loss she claims.

97 The applicant’s claim for damages for economic loss is set out in the Further Amended Points of Claims as follows:

from 1 July 2005 to 16 November 2005 -$5,838.00 (139 days calculated at $42 per day)

from 17 November 2005 to 30 June 2006 – $1,848.00 (calculated at the rate of $42 per day x 44 days)

from 1 July 2006 (calculated at the rate of $42 per day)

98 Although Counsel for the applicant indicated in his final submission that the figures speak for themselves, no explanation was provided as to how these figures were determined. In particular, it was not made clear to the Tribunal what was the source of the daily rates. We can only assume that there has been an adjustment in the period 17 November 2005 to 30 June 2006 for payment made in accordance with the Master Roster from 17 November 2005 as only 44 days are claimed.

99 In her statement, the applicant sets out her annual income for the years from 2003 to 2005, showing a decrease in salary over these years. The applicant attributed the whole of the difference to the loss of regular overtime, weekend and shiftwork income. She also set out the enterprise bargaining increases to which she would have been entitled. We do not think it is possible to look back at the salary the applicant earned in other periods and say with certainty she would have earned the same amount in a subsequent period had she not been subject to the discriminatory conduct. It is difficult to calculate with accuracy a figure for overtime, penalty rates, and shift allowances that the applicant would have earned had she remained on West Ryde station. The applicant was at this time on alternative duties and not in a position to do the full duties she had been doing prior to November 2003. The applicant’s own evidence was that in her role at West Ryde she was able to earn some shift and penalty rates, but not of the same amount as prior to November 2003. On the question of overtime she said she had no opportunity at West Ryde for the first 6 months, but did a limited amount subsequently. Our conclusion is that it is not possible to predict the exact amount of overtime, shift and weekend work the applicant would have undertaken if she had stayed at West Ryde station, and the exact value of this in terms of income. It is also not clear that the applicant would have remained at West Ryde station from November 2004, until the present day. Ms Koelmeyer’s evidence was that employees on return to work plans because of medical conditions might stay in alternative duties up to 6 months before they were redeployed. The applicant’s return to work documentation dated 8 November 2004, states an expected completion date of 15 November 2005. This suggests that it was feasible for a person to remain in an alternative duties position for at least a year.

100 In our view, the relevant conduct of the respondent found to constitute the unlawful discrimination resulted not in the actual loss of a determinable amount of overtime, penalty rates and shift allowances, but in the loss of the opportunity to supplement her income in this way. Alternatively, if there was an actual loss of a fixed amount of overtime shift and weekend work, we are not satisfied that the actual amount has been quantified (Bonella v Wollongong City Council [2001] NSWADT 194at [118 -119]). Our conclusion is that the applicant has not established an actual loss for which the Tribunal could award special damages.

101 General damages. The applicant seeks an unspecified amount of damages for non-economic loss. The appropriate level of damages can be difficult to determine. Wilcox J in Hall v Sheiban (1985) ALR 503 observed at 543:

Damages for such matter as injury to feelings, distress, humiliation and the effect on the complainant’s relationship with other people are not susceptible to mathematical calculation. … To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.

102 The applicant indicated in her complaint to the ADB that she “would like to receive back pay for the unnecessary stress this has caused me and for the income I have unfairly lost”. In April 2005 Dr Aggarwal wrote to Dr Santamaria (her general practitioner) ((KMK 13) stating:

She is currently working full time, performing clerical duties. She has limited customer contact, and this is in addition to the reduction of pay as she is no longer performing shift work, is resulting in her becoming increasingly stressed and agitated. I am concerned that the levels of stress that Ms Dunne is taking on herself may result in seizures, and I have suggested that she try to reduce it as the cause of her stress is beyond her control”.

103 We find that the discriminatory conduct of the respondent in moving her from working on a station to working in an office environment has caused the applicant to suffer a significant amount of stress and frustration for which the applicant should be compensated.

104 Any award of general damages in this case should include a component for the applicant’s loss of opportunity, or chance, to earn additional income through overtime, shift and weekend work by reason of the discriminatory conduct of the respondent. In the circumstances of this case we regard the applicant as entitled to an award of $14,000 for general damages.

105 Costs: Both parties indicated that in the event that they were successful, they would apply for costs. This is not a jurisdiction in which costs follow the event. Section 110 of the Act provides that each party is to pay his or her own costs, unless the Tribunal is of the opinion that in a particular case there are circumstances that justify making an order as to costs. If the applicant chooses to proceed with an application for costs, she must file and serve upon the respondent written submissions in support of any application within 10 days of this decision. These submissions should address what are the circumstances that would justify departure from the general position that each party pay his or her own costs. Within 10 days of receiving any such written submissions the respondent must file and serve any written submissions in response. Unless either party submits there are good reasons for doing otherwise, the issue of costs will be determined on the basis of the written submissions without the need for an oral hearing.

Decision and orders

106 The decision of the Tribunal is that the complaint of disability discrimination in employment is substantiated. The Tribunal makes the following orders:

2. Within 10 days of the date of this order the applicant must file and serve upon the respondent written submissions in support of any application that the applicant proposes to make for costs.

3. Within 10 days of receiving any written submissions referred to in Order No 2 the respondent must file and serve any written submissions in response.

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Citations

Dunne v Rail Corporation, New South Wales [2006] NSWADT 273

Most Recent Citation

Dunne v Rail Corporation,NSW (No 2) [2006] NSWADT 335

Cases Citing This Decision

3

Rail Corporation of NSW v Dunne (EOD) [2006] NSWADTAP 65

Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 119

Dunne v Rail Corporation,NSW (No 2) [2006] NSWADT 335

Cases Cited

18

Statutory Material Cited

3

Wollongong City Council v Bonella [2002] NSWADTAP 26

Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

CITATION:	Dunne v Rail Corporation, New South Wales [2006] NSWADT 273
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Monica Dunne RESPONDENT Rail Corporation, New South Wales
FILE NUMBER:	051091
HEARING DATES:	24-26/07/2006
SUBMISSIONS CLOSED:	07/26/2006
DATE OF DECISION:	09/21/2006
BEFORE:	MacDermott T - Judicial Member; Lowe A - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Rail Safety Act 2002
CASES CITED:	Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Bonella v Wollongong City Council [2001] NSWADT 194 Cosmo v Qantas Airways Limited [2002] FCA 640 [2002] FCAFC 425 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Dutt v Central Coast Area Health Service [2002] NSW ADT 133 Hall v Sheiban (1985) ALR 503 Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258 Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41 Lavery v Commissioner of Fire Brigades [2003] ADT 93 Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 Perlidis v Brambles Security Services Limited Trading as Brambles Armoured [2003] NSWADT 11 Pignat v Richmond Valley Council [2005] NSWADT 162 Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella [2002] NSWADTAP 26
REPRESENTATION:	APPLICANT M Moir, barrister RESPONDENT K Eastman, barrister
ORDERS:	1. Within 28 days of the date of this order the respondent must pay to the applicant the sum of $14,000 by way of damages.; 2. Within 10 days of the date of this order the applicant must file and serve upon the respondent written submissions in support of any application which the applicant proposes to make for costs. ; 3. Within 10 days of receiving any written submissions referred to in Order No 2 the respondent must file and serve any written submissions in response.

[2006] NSWADT 273

21/09/2006