French v Sydney Turf Club & Anor
[1999] NSWCA 195
•18 June 1999
CITATION: French v Sydney Turf Club & Anor [1999] NSWCA 195 FILE NUMBER(S): CA 40531/98 HEARING DATE(S): 4 May 1999 JUDGMENT DATE:
18 June 1999PARTIES :
Margaret French
Sydney Turf Club
Equal Opportunity TribunalJUDGMENT OF: Priestley JA at 1; Meagher JA at 2; Giles JA at 10
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : ALD30018/98 LOWER COURT JUDICIAL OFFICER: H H Bell AJ
COUNSEL: Appellant - S W Winters
Respondents - R J Buchanan QC & R S WarrenSOLICITORS: Appellant - Kingsford Legal Centre
First Respondent - Manion McCosker
Second Respondent - I V Knight, State Crown SolicitorCATCHWORDS: EQUAL OPPORTUNITY TRIBUNAL - complaints of physical impairment/disability discrimination - dismissed - appeal to judge on point of law - further appeal to Court of Appeal - whether Tribunal a specified tribunal for purposes of Supreme Court Act - whether matter at issue of value more than $100,000 - leave required - whether Tribunal entitled to act on parties' agreement that one complaint could not be maintained even if wrong - was entitled - whether Tribunal applied test required by Anti Discriminatioin Act to other complaint - reasons of Tribunal unclear - could not be seen what it had done - necessary findings not made - (by majority) leave to appeal granted and appeal allowed - remitted to Tribunal to be dealt with according to law. DECISION: By majority: (1) Extend the time for the appellant to apply for leave to appeal from the decision of Bell AJ given on 23 June 1998 until 17 August 1998; (2) Grant leave to appeal limited to the decision on the complaint of disability discrimination in relation to the injury to the appellant's back and right leg ("the hours complaint"); (3) Allow the appeal in relation to the hours complaint and set aside the dismissal by Bell AJ of the summons filed in the Administrative Law Division so far as the dismissal was in relation to the hours complaint; (4) Allow the appeal from the decision of the Equal Opportunity Tribunal ("the Tribunal") so far as the Tribunal dismissed the hours complaint and set aside the Tribunala's dismissal of the hours complaint; (5) Remit the decision of this Court to the Tribunal for the hours complaint to be dealt with according to law; (6) Order the first respondent to pay the costs of the appellant of the summons filed in the Administrative Law Divison and of this appeal; (7) Grant to the first respondent if qualified a certificate under the Suitors Fund Act.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40531/98
ALD 30018/98PRIESTLEY JA
MEAGHER JA
GILES JAFriday 18 June 1999
FRENCH v SYDNEY TURF CLUB & ANOR
JUDGMENT
1 PRIESTLEY JA: I agree with Giles JA.
2 MEAGHER JA: In my view, leave to appeal should be refused.
3 This Court is fighting an unequal battle to control its lists. About two years elapses between the initiation of an appeal and the hearing of it. It was in order to exercise some measure of control over this situation that the Rules of Court now provide that in various cases leave to appeal is required. The whole point of requiring leave to appeal is negated if the Court, as now seems to be the case, grants leave every time it is sought.
4 The present case is an example. In my view, on no rational basis should leave be granted. The amount involved is a mere handful of dollars. No question of public importance is involved. It is not a test case. A question of law is involved, but only of a most technical kind. But, what is most important, it is a case where the applicant has no moral merits whatsoever. No injustice would flow from a refusal to grant leave.
5 Mrs French suffered an accident on 10 September 1988 when working for the respondent Sydney Turf Club. Before the accident she was working eight hour shifts. It seems to have been a serious accident. She has received generous amounts of workers’ compensation in respect of that injury.
6 After the accident, she was re-employed by the Sydney Turf Club, but on four hour shifts not eight hour shifts. The Club took this stance because Mrs French’s medical advisor said that she was incapable of resuming her former eight hour shift, but was capable of working for a lesser time. In other words, the club was offering her work she was medically fit to perform rather than work which would inevitably lead to a further accident.
7 Now the Club is being attacked for endeavouring to behave responsibly. Mrs French wants to be employed on eight hour shifts even though she cannot manage them.
8 Mrs French’s complaint is that, under New South Wales’ quaint anti-discrimination legislation, an employer may not take an employee’s medical condition into account in fixing his or her terms of employment. Such a proposition, on the face of it bizarre, may indeed be correct, but, if it be correct one cannot help wondering if that is what Parliament intended.
9 A Board of Reference under the Industrial Relations Act 1998 (Cth) dismissed Mrs French’s complaint. She then complained to the Equal Opportunity Tribunal, which again dismissed the complaint. She appealed to the Supreme Court, and Bell AJ dismissed her appeal. Thus, on three occasions, the Club’s attitude has been held to be reasonable. It is hard to see that any sensible person would disagree. But, however reasonable the Club’s behaviour, Mrs French seeks to raise the matter yet again by an appeal to this Court. Why should we permit her to indulge her strange whim?
10 GILES JA: Mrs Margaret French appealed purportedly as of right from the decision of Bell AJ in the Administrative Law Division of the Court. His Honour had dismissed a summons by which Mrs French appealed from a decision of the Equal Opportunity Tribunal (“the Tribunal”). The Tribunal had dismissed a complaint or complaints lodged by Mrs French with the Anti-Discrimination Board (“the Board”) alleging discrimination by the Sydney Turf Club (“the Club”) on the grounds of physical impairment and disability, contrary to the Anti-Discrimination Act 1977 (“the Act”).
11 The Club was the first respondent to the appeal and the Tribunal was the second respondent to the appeal. The Tribunal submitted to the order of the Court save as to costs.
12 Whether leave to appeal was required was in issue. Notices of motion were filed, by the Club seeking to have the appeal struck out as incompetent, and by Mrs French seeking an extension of time to apply for leave to appeal, and leave to appeal, if it were held that leave to appeal was required. The motions and the substance of the appeal were heard together.
History
13 Mrs French was employed by the Club as a bar attendant. She worked seven or eight hour shifts on each day at which race meetings were held at Rosehill Gardens and Canterbury racecourses.
14 On 10 September 1988 Mrs French suffered a work related accident resulting in injury to her back and right leg. She was absent for work for seven months from 3 November 1988 to 24 June 1989, during which period she received workers compensation payments from the Club’s workers compensation insurer. She returned to work on 24 June 1989 on restricted hours of four hours per race meeting. The workers compensation insurer made her pay up to the full amount received prior to her injury.
15 In about November 1991 Mrs French was informed that the workers compensation insurer would refuse liability and cease payments with effect from 18 December 1991. The resulting dispute was resolved by settlement of Mrs French’s workers compensation claim by agreement on 7 May 1993. She received payment in relation to a 20 per cent permanent disability to her back and a 10 per cent permanent disability to her right leg.
16 Mrs French continued to work on restricted hours of four hours per race meeting. She asked the Club to reinstate her to her pre injury hours of work. Her request was not met, although the circumstances in which, and the reasons why, that was so were in issue.
17 Mrs French contracted a skin condition known as paronychia, affecting the long finger of her right hand particularly around the nail. She was off work by reason of the condition from 16 November 1993 until 7 September 1994. The Club’s workers compensation insurer made workers compensation payments until about the end of June 1994.
18 Mrs French resumed work as a bar attendant on 7 September 1994, still on restricted hours of four hours per race meeting. She continued to request that she be returned to full shifts. Her request still was not met, although the circumstances in which, and the reason why, that was so were again in issue.
19 On 15 May 1995 Mrs French lodged a complaint with the President of the Board (s 88 of the Act). It was described as a “disability discrimination” complaint, and was accompanied by a detailed statement made by Mrs French.
20 The President was obliged to investigate the complaint (s 89 of the Act). He wrote to the Club, requesting its response to Mrs French’s allegations and the provision of certain information. He summarised the allegations in an attachment to the letter.
21 The summary of Mrs French’s allegations was -
· She worked as an employee of Sydney Turf Club since 1972 as a bar attendant
“ Allegations:
Ms French alleges
· She was required to work 7 or 8 hours each day a race meeting was held at Rosehill and Canterbury Race Course
· In 1988 she suffered a work related injury and upon returning to work in June 1989 was placed on restricted duties of working only 4 hours per shift
· She made numerous requests to her supervisors to have her hours reinstated to full hours each day, but she has remained on 4 hours each day. The last request to have her hours reinstated was made to Mr Randall in March 1995 to which it is alleges he replied “I can’t see why not, you have everything we need.”
· After being referred by Mr Randall to Ms Angie King, Ms King is alleged to have said “Margaret we have decided not to increase your hours.” When Mrs French sought clarification Ms King is alleged to have said “I have decided.” When Ms French sought to know the reason why she could not have her hours reinstated, it is alleged Ms King replied “I am not going to discuss it with you, I am very busy and have to go now.”
Ms French further alleges:
· In November, 1993, she acquired a skin condition known as paronychia due to her work and was not allowed by management to return to work until September 1994 after having time off.
· She considers herself able to work for the full hours per day in a given race meeting, as she had prior to 1988.
· She could be reasonably accommodated at work with her restrictions without a reduction in her working hours.”12 The President noted in his letter that the allegations appeared to involve the ground of disability “applicable to incidents of discrimination alleged to have occurred after 8 August 1994” and the ground of physical impairment. The Act had been amended with effect from 8 August 1994. Prior to that date the relevant discrimination was discrimination on the ground of physical impairment. After that date it was discrimination on the ground of disability.
13 At least as later perceived, there were two complaints. One was a complaint of discrimination in relation to the hours of work (“the hours complaint”). The other was a complaint of discrimination in relation to the paronychia (“the paronychia complaint”). From the summary of Mrs French’s allegations, the “incidents of discrimination” for each could have straddled 8 August 1994, with each being a complaint of discrimination on the ground of physical impairment and a complaint of discrimination on the ground of disability.
14 However, a complaint had to be lodged within six months after the date on which the contravention of the Act the subject of the complaint was alleged to have been committed (s 88(3) of the Act), so incidents of discrimination prior to 15 November 1994 were excluded unless the President, on good cause being shown, accepted the complaint (s 88(4) of the Act).
15 The Club provided its response to the President, and further information was gathered from Mrs French and the Club. A conciliation conference was held. Still further information was then received, and there was an attempt at further conciliation. The complaints were not resolved.
16 At some time in this period Mrs French’s union applied to a Board of Reference under the Industrial Relations Act 1988 (C’th), in accordance with the provision of her award, claiming compensation for loss of wages. As described in the Board's decision, the ground of the application was that the Club did not return Mrs French to her normal bar duties “from 22 June 1994 in accordance with a medical certificate from the treating specialist, Dr Isaacs.” Dr Isaacs had been treating Mrs French in relation to the paronychia, and the claim was that the Club had “failed to pay her the 10 weeks pay at the gross rate of $75 p.w. for the period that the insurance company ceased to pay workers compensation up until she eventually was permitted by her employer to return to her bar duties”. Dr Isaacs’ certificate had been subject to seeing the workers compensation insurer’s doctor. That doctor required that Mrs French wear gloves. Dr Isaacs gave a later unqualified medical certificate, but Mrs French or her union did not provide that certificate to the Club until late August 1994. The application was dismissed, it seems because the Club was considered to have been justified in declining to return Mrs French to her normal bar duties until it knew of the unqualified clearance.
17 On 13 May 1996 Mrs French asked that the President refer the complaints to the Tribunal constituted under the Act (s 94(1) of the Act). The President considered, after hearing from Mrs French and the Club, whether the complaints should be accepted to the extent that they were out of time. In his report to the Tribunal (again s 94(1) of the Act) the President indicated his decisions in the terms -
“On the 8 August, 1996 the President decided to refer Mrs French’s complaint of disability discrimination to the Tribunal. On 13 August, 1996, the President also decided to accept the complaint physical impairment [sic] out of time and refer it to the Tribunal, to be heard in conjunction with the first complaint.”
Although both complaints were referred to the Tribunal, this left unclear the extent of acceptance of the complaints out of time, and in particular whether one complaint only had been accepted out of time and if so what complaint.
18 The Tribunal was required to “hold an inquiry into each complaint or matter referred to it” under the provisions of the Act (s 96 of the Act). The constitution of the Tribunal for the inquiry (s 69M of the Act) was Mr R J Bartley (judicial member) and Ms S Tracey and Mr A Silva (members).
19 The Tribunal held an inquiry into Mrs French’s complaint on 21 October and 19 and 22 December 1997 and 13 February 1998. It had before it the report of the President, and received oral and documentary evidence. Mrs French and the Club were each legally represented, Mrs French by Ms N H Rudland of counsel and the Club by Mr R Warren of counsel.
20 A number of facts were agreed, on which I have drawn in what I have said so far. They included that Mrs French suffered the physical restriction that she was unable to lift trays of glasses from a squatting position, although it was not agreed whether she suffered from any further physical restrictions.
21 In addition, the parties agreed on some matters other than matters of fact, including -
“1. The complainant had a disability at the date of her complaint to the Anti-Discrimination Board, 15 May 1995.
2. The complainant relies on s. 49B(1)(a)(b) and s. 49D(2)(a)(b)(d) of the Anti-Discrimination Act 1977.
3. The respondent cannot rely on s. 49D(4), the ‘unjustifiable hardship’ section in respect of the grounds relied on.
4. The burden of proof lies on the complainant.
…
7. The complainant claims she is being discriminated against by her employer, the respondent, as the respondent will not employ her for a full shift of eight hours per day but only for four hours per day because of her disability.
8. The employer says due to the nature of the job the respondent can employ her for four hours a day but due to the fact of her disability she cannot be gainfully or safely employed for longer.
9. The parties have agreed the law applicable is the law as applied on 15 May 1995 and today.”
22 The Tribunal gave its decision in reasons published on 13 February 1998.
23 As to the paronychia complaint, the Tribunal said -
“The case has proven difficult for the Tribunal as it began with two complaints but at the conclusion of the evidence the parties agreed (1) one complaint was out of time; and (2) in addition, the matter the subject of that complaint was dealt with in the Industrial Relations Court and the complainant was now estopped from pursuing the matter before the Tribunal. As a result, the Tribunal has had to review the whole of the evidence to ensure what evidence is applicable to the remaining complaint.”
24 As to the hours complaint, being the remaining complaint in the passage just set out, the Tribunal said:“Dealing with the actual complaint, in respect of the employment of the complainant by the respondent, the matter at issue is the competence of the complainant to work a full shift, seven or eight hours, or whether she is only able to work for a four hour shift. The Tribunal is of the view that the lifting of glasses, restocking the refrigerator with cans of beer and moving the cash register for cleaning are essential parts of the duties of a bar attendant. We also find that the normal shift for bar attendants is from about 10.30am on a working day for approximately eight hours. This requires a setting up of the bar and at the end of the day packing the stock and cleaning and finishing up duties.
The complainant works a four hour shift from midday and is not required to do the setting up work and finishing work as the respondents are of the view that her injuries prevent her from doing it.
Over a period of time the complainant has claimed discrimination against the club, the club was aware of the worker’s compensation claim settled on 5 May 1993 in which she received compensation for the permanent impairment of her back twenty per cent and the loss of her right leg, ten per cent. The respondent had medical certificates arising out of that claim stating the complainant could cope with part time activities.
Dealing with this matter, we paid particular regard to the following cross-examination. The complainant was asked in cross-examination, question “that if he (Mr Kenny) has consistently said that when you have a medical clearance that he couldn’t see any reason why you shouldn’t return to a full shift, if you get a medical clearance to say you can work, he has done that, hasn’t he”. Answer “on a couple of occasions”. Question “I suggest to you that hasn’t been supplied”. “That is correct, yes”.
In our view, in respect of 49B(1) [sic: 49B(1)(a)] the respondent has not treated the complainant less favourably than in effect than any other person in the same circumstances, or in circumstances which are not materially different. We are of the view that the respondent has done all it could to help the complainant in the circumstances, especially having regard to her disability. In addition, in continuing the complainant’s employment in the way they have done they have not breached s. 49(1)(2)(a), (b) and (d) [sic: s. 49D(2)(a), (b) and (d)] of the Anti-Discrimination Act .
We have carefully considered the submissions on s 49B(1)(b) which is a very awkwardly worded section. We have come to the conclusion the circumstances of this case do not fall within its terms. Notwithstanding this, we are of the view that the respondent’s requirements in respect of the complainant are quite reasonable.”
25 The Tribunal’s reasons concluded with the formal orders that “the complaint is dismissed and there is no order as to costs”. It appears that the Tribunal either considered that one complaint, that is, the paronychia complaint, had fallen away without the need for a formal order, or that the order it made encompassed both complaints.
26 An appeal lay to the Supreme Court “on a question of law”, to be made “in accordance with the rules of Court” (s 118 of the Act). On 6 March 1998 Mrs French filed a summons in the Administrative Law Division of this Court, in which she appealed against “the decision of [the Tribunal] given on 13 February 1998, whereby the Tribunal dismissed the Plaintiff’s complaint of disability discrimination against [the Club] under [the Act]”. Orders were sought setting aside the decision of the Tribunal and remitting the matter to a differently constituted tribunal to be reconsidered according to law. An amended summons was filed on 18 June 1998, seeking additional orders directing the Tribunal to inquire into “Mrs French’s complaint of discrimination based upon her disability or physical impairment of paronychia” and her “complaints of discrimination arising before 8 August 1994 on the ground of her physical impairments”.
27 The appeal was heard by Bell AJ on 18 June 1998. Mrs French was represented by Ms S Winters of counsel, and the Club was represented by Mr Warren. On 23 June 1998 his Honour delivered reasons dismissing it with costs.
28 In the early part of his reasons, his Honour observed that it appeared that in August 1996 the President had “extended the time for complaining about the paronychia”. His Honour also briefly described the proceedings before the Board of Reference.
“I agree with Miss Winters that there seems to be some error on somebody’s part. The Chairman of the Board had extended time for making the complaint, as he was entitled to do pursuant to s 88(4) of the Act. There was almost certainly no estoppel, since it does not appear that the Board of Reference is a Court nor that the issues decided by that Board were identical to those before the Tribunal. However it is clear enough that the legal representatives of the parties believed that the claim was unlikely to succeed and whether that belief was right or wrong they were entitled to act on it. It was a forensic decision and the appellant is bound by the actions of her legal representatives. Neither the Chairman of the Tribunal nor counsel for the respondent was under any obligation to seek to persuade her otherwise. There is no suggestion of collusion fraud or excess of express instructions.
29 When addressing how the Tribunal had dealt with the paronychia complaint, his Honour set out the sentence from the Tribunal’s reasons about the complaint being out of time and the subject of an estoppel, and said -30 His Honour then turned to the hours complaint. He said that the Tribunal had apparently concluded that Mrs French was unable to work a full shift and that there was not (and could not be) a challenge to that finding of fact. He continued -
However Miss Winters also argues that the Tribunal has a duty to enquire into matters referred to it until or unless it dismisses them under s 111.
There was no formal ruling by the Tribunal on this matter. There was no finding that the application was frivolous or lacking in substance or that it should not be entertained but the Tribunal was entitled to dismiss it pursuant to s 111(1A). Although the language of the section was not quoted, it seems that the Tribunal was satisfied that the complainant through her counsel did not wish to proceed with the complaint in question and that for this reason the complaint was dismissed.”
“What is argued is that the statement of ‘the matter in issue’ was inaccurate and that it indeed begs the actual issue as found in s 49B(1)(a) and (1)(b). The passages of transcript cited by Mr Warren do not establish that there was any agreement that competence to work a full shift was ‘The’ issue. Though it may well be that this was how the case was conducted. It is not a correct statement of the legal issue raised by the enquiry.
There were no pleadings nor were the precise issues identified other than in the judgment. The specific reference to s 49B(1)(b) in the last substantive paragraph of the judgment makes it probable that attention was being directed to s 49B(1)(a) in the preceding passage.
Paragraph (a) of s 49B(1) states in effect that a person discriminates against another when he treats a disabled person less favourably than he would have treated an able bodied person in similar circumstances. (A person is deemed ‘disabled’ if the respondent thinks that she is disabled.)
The ‘circumstances’ must be those pertaining to the complainant. The hypothesis is that the notional able bodied person is employed in similar circumstances to the complainant.
Mr Warren for the respondent submits that the relevant proved circumstance is that the appellant is employed to serve behind the bar pouring beer and for no other purpose. He says that an able bodied person similarly employed would work under the identical conditions. This follows inevitably.
Miss Winters point [sic] out that the appellant is in fact employed as a bar attendant and that it is part of the duties of bar attendant to perform the other work described and to work eight hour shifts. (See the Tribunal’s finding of fact.) Those are ‘the circumstances’ in which the hypothetical treatment of the able bodied person must be considered.It does not appear from anything that I have been told that the significance of this finding of fact was debated in this context. Indeed counsel for the respondent, who also appeared for the respondent before the Tribunal, did not accept the above analysis but insisted that the section could have no application because ‘the circumstances’ were not the same.
The issue could, in my opinion, have been stated as follows -
“Has the appellant been treated less favourably than an able bodied person would have been treated if employed by the respondent as a bar attendant?”
This raises a question of fact, and there is no reason why the parties should not have so conducted their case that the factual issue was narrowed to that stated above by the Tribunal. That is what I think was done and what was intended to be conveyed by the Tribunal’s admittedly cryptic reasons for judgment.
In the present case there is evidence of discrimination within the meaning of s 49B(1)(a) but it is also arguable that limiting the scope of employment of a disabled worker to matters within her competence, is not ‘less favourable’ at all. It seems to me that when speaking of the respondent having ‘done all it could to help the complainant in the circumstances’ the Tribunal was saying just that.
‘ … in respect of s 49B(1), the respondent has not treated the complainant less favourably than, in effect, … any other person in the same circumstances …
The respondent has done all it could to help the complainant in her circumstances, especially having regard to her disability.’
It may be that the Tribunal shared Mr Warren’s [counsel for the Club] misunderstanding of the section but it is at least equally likely that it understood it quite well.
Miss Winters does not agree that in those quoted lines the Tribunal was in effect intending to pose and to answer the question as I have posed it. It is true that it did not specify the ‘circumstances’ that it was considering, thought its reference to ‘any other person’ is clearly wide enough to include ‘a person who does not have that disability’.
It would certainly have been easier for all concerned if the Tribunal had expressed its reasoning in greater detail but there is no such lack of exposure as to amount to a breach of the Tribunal’s obligation under s 117.As to s 49B(1)(b), the only specific reference is in the last substantive paragraph of the judgment.
Overlooking the apparently meaningless reference in s 49B(1)(b) to ‘a higher proportion’, (higher than what?) that section would seem to provide that there is discrimination where, because of the aggrieved person’s disability, the perpetrator requires her to comply with some requirement or condition with which an able bodied person can comply but with which the disabled person cannot comply and which is not reasonable in the circumstances. Thus, a requirement that all employees must be able to jump over a three foot ditch might effectively disqualify a one legged person from the employment in question. If the job in respect of which the condition is imposed is that of a gym instructor, the requirement may be reasonable. If it is a purely sedentary task then such a condition would probably be unreasonable.
I agree with the Tribunal that s 49B(1b) is not directed to the present situation - but I also agree with the Tribunal’s action in taking the precaution of finding that limitation to a four hour shift in the circumstances would be reasonable. The section would apply if it were found that the requirement that a bar attendant be able to carry out the normal duties of a bar attendant is a condition imposed on the appellant ‘on the ground of (her) disability’.
The Tribunal is required to do no more than to give an indication of the facts that it has found and its line of reasoning. It may without failing its obligation refer to facts which are not necessary for its decision and this would constitute no error unless it appeared that it had made its decision depend upon the irrelevant matter. This is particularly so where the parties have expressly agreed on these facts.”
31 His Honour concluded “that no error is found”, no doubt meaning that error of law in the Tribunal’s decision had not been made out.
32 On 21 July 1998 Mrs French filed a notice of appeal to this Court from the decision of Bell AJ. Orders were sought in substance overturning his Honour’s decision and in lieu making the orders sought in the summons filed in the Administrative Law Division.
33 On 10 August 1998 the Club filed a notice of motion to strike out the notice of appeal as incompetent. Through the affidavit in support of the notice of motion, it was contended that leave to appeal was required by force of s 101(2)(h) of the Supreme Court Act 1970, by which (as at 21 July and 10 August 1998) -
“(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from -
…
The Club’s position was that the decision of Bell AJ was on appeal from proceedings in a tribunal that was not a specified tribunal within the meaning of section 48.
(b) a judgment or order of the Court in a Division on appeal from, or in proceedings relating to or arising from, proceedings in a court or tribunal that is not a specified tribunal (within the meaning of section 48).”34 Mrs French did not concede that leave to appeal was required, although she prepared in draft a notice of motion, expressed to be in the event that the Court determined the appeal to be incompetent, whereby she sought the extension of time and leave to appeal as earlier mentioned. On 17 August 1998 the Registrar granted leave to file that notice of motion in court, and it was filed.
35 Both notices of motion were treated as before the court on 9 November 1998, when it was directed that the hearing of the Club’s notice of motion, any application in relation to leave to appeal, and argument on the substantive appeal proceed concurrently.
36 Relevantly, the definition of “specified tribunal” in s 48(1)(a) of the Supreme Court Act included -
Is leave to appeal necessary?
“(vii) A body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as a judge or member or as a designated person.”
By s 48(1)(b), “judge or member” meant a judge or member mentioned in any of the preceding subparagraphs (i) to (v) inclusive of s 48(1)(a).
37 The Tribunal consisted of judicial members and members appointed by the Governor. A judicial member had to be a judge of the District Court, a judicial member of the Industrial Relations Commission, or a person who was qualified for appointment as such a judge or judicial member (s 69E of the Act). The judges and members mentioned in subparagraphs (i) to (v) of s 48(1)(a) were all holders of the respective offices, as distinct from persons who were qualified for appointment to the offices. The Club’s contention was founded on the fact that the Tribunal could be lawfully constituted with a judicial member who was not a judge or member mentioned in any of subparagraphs (i) to (v), although qualified for appointment because a legal practitioner of seven years standing (see District Court Act 1973 s 13(1); Industrial Relations Act 1996 s 149). The Tribunal was so constituted for the inquiry into Mrs French’s complaints.
38 If it were correct that the appeal from the decision of Bell AJ was not an appeal from proceedings in a tribunal that was not a specified tribunal, the appeal from the Tribunal should have been to the Court of Appeal and not to the Administrative Law Division of the Court: see s 48(2)(f) of the Supreme Court Act, by which there were assigned to the Court of Appeal proceedings on an appeal from a specified tribunal. Mrs French’s position was rather inconsistent, therefore, in that having taken an appeal to the Administrative Law Division for which it was necessary that the Tribunal not be a specified tribunal, she had to contend, in order to avoid the need for leave to appeal, that the Tribunal was a specified tribunal. As was submitted, however, the validity of the appeal to the Administrative Law Division was not impugned, because by s 51 of the Supreme Court Act that appeal was well commenced, and could be continued and disposed of, notwithstanding that it had been assigned to the Court of Appeal.
39 The status of the Tribunal as a specified tribunal or not a specified tribunal seems not to have been viewed uniformly.
40 In brief, it might be a specified tribunal (a) in all cases, because “body of persons” in s 48(1)(a) refers to the possible appointees as judicial members; (b) in all cases, provided at least one judicial member was a judge of the District Court or a judicial member of the Industrial Relations Commission, because “body of persons” in s 48(1)(a) refers to all appointees as judicial members; (c) in the particular case, if the Tribunal as constituted included a judicial member who was a judge of the District Court or a judicial member of the Industrial Relations Commission, because the particular Tribunal then satisfied the definition; or (d) in no case, because the “body of persons” could include a judicial member who was not a judge of the District Court or a judicial member of the Industrial Relations Commission.
41 Some decisions or dicta have favoured or accepted view (d) (Hargraves v Trotting Authority of New South Wales (Lee J, 25 March 1981, unreported); Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 48-50; see also Wentworth v Rogers (No 6) (NSWCA, 10 October 1986, unreported, per Kirby P). Some have left open view (c) (Geoffrey Button Sales Pty Ltd v Robson (1985) EOC 92-145; Secretary, Department of Health v Jamal (Hunt J, 18 December 1986, unreported); Durovic v Judge (Rolfe J, 25 February 1997, unreported)). We were informed that a number of appeals from the Tribunal to the Court of Appeal, and from single judges of the Court to the Court of Appeal without leave, have been heard without the status of the Tribunal being questioned (Haines v Leves (1987) 8 NSWLR 442 was referred to). Counsel for Mrs French said, and counsel for the Club seemed to agree, that the practice in relation to appeals from the Tribunal had been to appeal to the Court of Appeal if a District Court judge presided over the Tribunal, but to appeal to a single judge if a District Court judge did not so preside.
42 Mr Bartley was not a judge of the District Court or a judicial member of the Industrial Relations Commission. Mrs French contended for (b) in the possible views summarised above, and so questioned what was said to be the practice. The Club contended for view (d) or view (c), at worst upholding the practice.
43 But the matter was further complicated for the present question of leave to appeal by the amendment to s 101(2)(h) of the Supreme Court Act by the Justices Legislation Amendment (Appeals) Act 1998. Paragraph (h) as it stood when the notice of appeal was filed, and when the Club’s notice of motion was filed, was deleted, and replaced by a para (h) referring only to “an order of the Court in a Division on an appeal under Part 5 of the Justices Act 1902”. The amendment came into effect on 1 March 1999.
44 Mrs French submitted that para (h) was procedural, so that the amendment operated retrospectively and she had a right of appeal without leave by virtue of the notice of appeal filed on 21 July 1998. The Club submitted that leave was required when the notice of appeal was filed, and that the amendment did not overcome that; further, it said that it had an accrued right to have the notice of appeal struck out as incompetent in the absence of leave.
45 Although I have felt it appropriate to describe the contentions in relation to the status of the Tribunal, so far as relevant to the question of leave to appeal, in my opinion, leave to appeal is necessary for a different reason. The reason why leave to appeal is necessary could be material to the exercise of the discretion to grant leave, but in this case I do not think it is material. It is unnecessary to choose between (or amongst) the contentions I have described.
46 Although not through the affidavit in support of its notice of motion, in written submissions thereafter filed the Club raised the requirement of leave to appeal by force of s 101(2)(r) of the Supreme Court Act. By that provision (as at 21 July 1998 and thereafter) -
“(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from -
…
(r) A final judgment or order in proceedings of the Court, other than an appeal:
(i) That involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) That involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.”
47 At the hearing the Club at first did not take up para (r), reading “other than an appeal” as referring to proceedings by way of appeal to the Supreme Court and so excluding from the operation of para (r) the summons filed in the Administrative Law Division. It repented of that error, as error it was: the words “other than an appeal” refer to the appeal to the Court of Appeal. I do not think that Mrs French submitted to the contrary, and she did not say that it was not open to the Club to rely on para (r).
48 Mrs French submitted that para (r) was satisfied because what is at stake in the appeal (I use those words as a short form for all to which the paragraph could refer) was of the value of more than $100,000, made up of -
(a) a potential $40,000 damages for the paronychia complaint;
(b) a potential $40,000 damages for the hours complaint; and
(c) an order that her hours of employment be increased to the hours for a full shift, so that she would earn increased income in excess of $20,000 over the ensuing five years or so.49 Section 113(1) of the Act empowers the Tribunal to order payment of damages “not exceeding $40,000 by way of compensation for any loss or damages suffered by reason of the respondent’s conduct”, and to make orders which I will assume would include an order that Mrs French’s hours of employment be increased to those of a full shift. But the damages are compensatory, and the extent of the Tribunal’s jurisdiction to order payment of damages is not the same as Mrs French’s potential recovery. An assessment of the true potential recovery must be made, and also an assessment of the increased income which could flow from an order that Mrs French’s hours of employment be increased to those of a full shift.
50 I have described the application for compensation for lost wages made to the Board of Reference. Mrs French’s then claim was to $75 per week gross. In the summary of the complaints provided by the President to the Tribunal as part of his report it was said that Mrs French alleged that, had she been allowed to return to work on 22 June 1994 wearing gloves, she could have resumed her position as a bar attendant and would not have suffered ten weeks loss of pay. It is plain that any damages by way of compensation for lost wages for the paronychia complaint would be of the order of $750, not $40,000.
51 In her submissions to the Tribunal Mrs French said that she sought “in relation to economic loss, which we say has occurred since 15 May 1995” an amount of $7,150 calculated to 17 December 1997. This must have been in relation to the hours complaint, and it was said that 15 May 1995 to 17 December 1997 “is the period we make the claim for”. The figures were later amended in the course of the submissions to $9,135, firstly to correct arithmetical errors and secondly to include a meal allowance. Taking this at face value, it represents approximately $305 per month.
52 Even assuming error in the commencing date of 15 May 1995, and assuming further that that compensation for loss of wages could have run from December 1991 as the earliest time at which the workers compensation insurer may have ceased paying the full amount received by Mrs French prior to her injury, the compensation for loss of wages for the hours complaint, calculated to the present time, would be approximately $28,000. The assumptions probably unduly favour Mrs French, in that as later explained it seems that only instances of discrimination after 15 November 1994 could found the complaint; further, it is not clear whether the workers compensation insurer ceased payments to Mrs French in December 1991, in May 1993, or at some intermediate time.
53 Mrs French was born on 30 April 1944, and will reach age 65 in about ten years from the present time. At $305 per month, the difference between her wages for a four hour shift and her wages for a full shift over the next ten years would not exceed $37,000.
54 In her submissions to the Tribunal Mrs French said that she sought $15,000 “for hurt, humiliation, embarrassment et cetera, distress and so on”. This figure was repeated when the figures for lost wages were amended. No doubt the Tribunal was not bound to this as an upper limit, but it can and should be taken as Mrs French’s own assessment, with advice, of her claim in this respect.
55 In summary, therefore, what is at stake in the appeal is of a value of approximately $80,000, with assumptions in favour of Mrs French. Pursuant to s 101(2)(r), leave to appeal is required.
The paronychia complaint
56 Mrs French asserted error by Bell AJ in upholding the Tribunal’s entitlement to act on the parties’ agreements, as stated by the Tribunal, that the paronychia complaint was out of time and that Mrs French was estopped from pursuing it before the Tribunal. The grounds of appeal were much more detailed than this, but the thrust of the submissions was that the parties were wrong in their agreements, that their agreements did not take away the Tribunal’s statutory function of inquiring into the complaint (including into whether there was an estoppel), and that the agreements did not provide a basis for the Tribunal to dispose of the paronychia complaint in one of the ways permitted under the Act.
57 I do not think it profitable to parse Bell AJ’s reasons in the manner of the submissions. It is better to understand what the Tribunal decided, and why, and see whether it erred in law.
58 Towards the end of the evidence the Chairman of the Tribunal raised with the parties’ representatives his difficulty in ascertaining the second complaint the subject of the President’s leave to lodge out of time. He said that the President gave the leave to lodge something out of time “but its not clear from the file what this something out of time was”.
59 According to the transcript, Mrs French’s counsel then said -
“RUDLAND: That’s right. As I understand it it was in relation to the beer-germ, but that was dealt with by the Board of Reference. That was dealt with within the Industrial Tribunal. And therefore as I understand it, as I - I mean - as I understand the Act, because it has been dealt with by the Board of Reference, it can’t be dealt with.”
The reference to “the beer-germ”, as I understand it, was to the cause or possible cause of the paronychia.
60 Apparently referring to the hours complaint, the Chairman then questioned whether the Tribunal was “operating under” the Act as it stood prior to the amendments taking effect on 8 August 1994 or after those amendments. Having asked for assistance on that matter, he returned to the paronychia complaint -
“CHAIRPERSON: Is it correct from what Miss Rudland says that we’re really only concerned with one complaint, and that’s the complaint concerning the back injury is that correct or not?61 The evidence of the remaining witness was then taken, and there was a short adjournment. The transcript records -
RUDLAND: That’s right. Well I’ll need to look at the previous Act, because as I understand it, certainly on the current Act, because it was dealt with by the Board of Reference, the finger issue was dealt by the Board of Reference, we’re now prohibited by dealing with it here. That’s my understanding.
CHAIRPERSON: But if it’s under the old Act, you mightn’t be prohibited.
RUDLAND: But under the old Act we might be in.
CHAIRPERSON: Well that’s the problem. That’s the problem, I’m sorry about this, but I didn’t - I hadn’t read it earlier –
RUDLAND: And it’s not something I picked up and I must apologise.
WARREN: If it’s confession time, neither have I.
CHAIRPERSON: No because you agreed with the submissions. And the points of claim. I checked your points of claim, and didn’t take the point in the response either. But I might be completely wrong, but that’s the problem as I see it. I think it appears, that if we’re not worrying about the finger, everything occurred before August ’94, and therefore we’re dealing with discrimination in work in respect of a physically handicapped person on the grounds of physical impairment. Now what difference that makes to disability I’d have to hear from you both in due course.”
“RUDLAND: In relation to the problem that you’ve raised this morning in relation to which Act we’ve looked at documents, and there’s correspondence found which was a letter which we can hand up –
CHAIRPERSON: Well if you both agree, you can tell me it’s quite alright -
RUDLAND: We’ve agreed in essence that this correspondence demonstrates that the physical impairment claim related to the finger, the finger infection, and the disability discrimination claim related to the back. And we’ve agreed that because of the Board of Reference proceedings –
CHAIRPERSON: That the physical impairment claim - so he gave leave for both matters –
RUDLAND: Only the physical impairment –
WARREN: No, which was the finger.
RUDLAND: Which was the out of time application.
CHAIRPERSON: The finger was out of time was it?
RUDLAND: Yes.
CHAIRPERSON: Right.
RUDLAND: And we say that was that out of time application, but we’ve agreed that because of the Industrial Relations proceedings in relation to that, the complainant is estopped from pursuing that claim before this Tribunal. And there the only claim that we have, the complainant has, currently before the Tribunal is the disability discrimination claim under the current Act that runs from the 15 May 1995.
CHAIRPERSON: You both agree on that do you.
RUDLAND: Mm.
CHAIRPERSON: So the only evidence that you agree that’s relevant is what happened after the 15 May?
RUDLAND: In relation to the back - the back - well no –
WARREN: That’s not right.
RUDLAND: Not the events that occurred, but because the applicant only lodged her complaint on the 15 May 1995 and made no out of time application in relation to the disability discrimination claim, there wasn’t any out of time application granted in relation to that.”
62 There was then discussion of the hours complaint being “ongoing with instances of discrimination in February and May 1996”.
63 The concept for discrimination prior to 8 August 1994 was physical impairment; after 8 August 1994 it was disability. Having looked at correspondence, which must have made more clear what the President had decided to accept out of time, the parties’ representatives were of the view that the paronychia complaint was “the physical impairment claim”, being the complaint “out of time”, and that the hours complaint was “the disability discrimination claim” and was not the subject of acceptance out of time.
64 In referring to the paronychia complaint as an “out of time application”, the parties’ representatives did not mean that it could not be entertained because out of time. They were contrasting it with the hours complaint, and were well aware that the President had accepted it out of time. But they were agreed that an estoppel operated from pursuing the paronychia complaint before the Tribunal. So it was left for the Tribunal to consider the hours complaint, and to consider it as a complaint of disability rather than physical impairment because, in the absence of acceptance out of time, only incidents of discrimination after December 1994 could found the complaint. That explained why the parties were agreed that the law applicable was “the law as applied on 15 May 1995 and today”. The Act as it stood after 8 August 1994 was the applicable law.
65 There was then some further discussion between the Chairman and the parties’ representatives, which included -
“CHAIRPERSON: In reality everything remains as it is except for the fact that we haven’t got to consider the injury to the finger. Everything remains as we started it. There’s no changes anywhere. We consider all the evidence that’s come in but there’s to be no decision on the complaint about the finger.
WARREN: The finger shouldn’t form any part of, if contrary to our submission there is a legitimate complaint, shouldn’t form any part of the remedy.
CHAIRPERSON: Not so much about the remedy, is the evidence concerning the dermatitis relevant to the dispute about failure to give the full hours?
WARREN: No.
CHAIRPERSON: We can discard any evidence concerning the complainant and the respondent’s conduct in respect of the matter of the dermatitis on the finger, is that right?
WARREN: That’s right, because that formed part of the proceedings before the Industrial Commission.
CHAIRPERSON: Do you agree with that.
RUDLAND: Yes.
…
CHAIRPERSON: We’re not to take into account evidence relating to the skin complaint on the finger. Does that include the conduct of the parties in relation to it or not?
RUDLAND: No, we’d say not.
CHAIRPERSON: As far as we’re concerned we’re just concentrating on the back and the conduct of the parties in respect to the back. Does that cover everything?
WARREN: I sincerely hope so.”
66 So far as the Tribunal said in its reasons that the parties agreed that the paronychia complaint was out of time, I think there was a misunderstanding. The parties’ representatives referred to the paronychia complaint as the out of time complaint, which it was in that the relevant incident or incidents of discrimination must all have preceded December 1994, comparing it with the hours complaint. That description, however, was for identification only. The parties’ representatives believed, and told the Tribunal, that the President had granted an extension of time.
67 But it is as plain as can be that the parties told the Tribunal that the paronychia complaint was not being maintained, and that Mrs French’s counsel took the lead in so informing the Tribunal. That was because it was thought that, when Mrs French had unsuccessfully claimed before the Board of Reference lost wages for her treatment in relation to the paronychia condition, she was unable to maintain the paronychia complaint before the Tribunal. The parties’ representatives, and in particular Mrs French’s counsel, may have been incorrect in that belief. That the belief underlying what the Tribunal was told may have been incorrect did not detract from the clarity with which the Tribunal was told that it could ignore the paronychia complaint.
68 Mrs French submitted that the Tribunal had nonetheless erred in law in not dealing with the paronychia complaint, because it was obliged to inquire into every complaint referred to it: it was said that this followed from s 96 of the Act. According to the submission, acting on (for present purposes) the agreement that Mrs French was estopped from maintaining the paronychia complaint before the Tribunal was not open to the Tribunal, because inconsistent with the Tribunal’s statutory function. I do not agree.
69 Section 96 of the Act provides that the Tribunal shall “hold an inquiry”. The complainant and the respondent are parties to the inquiry (s 100 of the Act), and other persons may be joined as parties (s 98 of the Act) or be given leave to appear as parties (s 100 of the Act). In holding an inquiry the Tribunal must be able, if it thinks fit, to act on a concession made by a party, in particular upon a statement by a complainant that he or she does not maintain a complaint. Acting upon such a statement, indeed, would be the consequence of a successful conciliation which the Tribunal is empowered to undertake (s 106(a) of the Act), or of a successful amicable settlement to which the Tribunal is obliged to bend reasonable endeavours (s 106(b) of the Act), and it can not be that, despite a successful conciliation or amicable settlement, the Tribunal must continue to inquire into the relevant complaint. In the present case, the Tribunal did hold an inquiry, and the inquiry led to disposal of the paronychia complaint pursuant to the agreement of which it was told.70 Further, the Tribunal is specifically empowered to dismiss a complaint if satisfied that it is frivolous, vexatious, misconceived or lacking in substance “or that for any other reason the complaint should not be entertained” (s 111(1) of the Act), or if satisfied that the person on whose behalf the complaint was made does not wish to proceed with the complaint (s 111(1A) of the Act). The Tribunal may be satisfied that a complaint should not be entertained if the complainant’s representative, after apparent due consideration, informs the Tribunal that the complainant is unable to pursue the complaint. It may also be satisfied that the complainant does not wish to proceed with the complaint in the same circumstances. This Tribunal was entitled to be so satisfied. Mrs French submitted that s 111(1A) did not empower dismissal of the paronychia complaint, because she did wish to proceed with the complaint but her counsel wrongly believed that she could not proceed with it. This does not escape s 111(1), but even as to s 111(1A) Mrs French’s counsel was to be identified with Mrs French in conveying to the Tribunal that the paronychia complaint was not maintained. Whatever regret there may have been in taking that course, what was conveyed was that Mrs French did not wish to proceed with the complaint.
71 In my opinion, the Tribunal did not err in law in acting on the agreement that Mrs French was estopped from maintaining the paronychia complaint before the Tribunal. Its error in relation to the complaint being out of time does not matter, since the agreement in relation to estoppel independently justified, indeed in the light of the discussion as set out above mandated, dismissal of the complaint. It is true that, as Mrs French submitted, the Tribunal did not in terms express satisfaction that the complaint should not be entertained, or that Mrs French did not wish to proceed with the complaint, and did not in terms dismiss it. But it is plain that the complaint was disposed of by dismissal, and was disposed of because Mrs French considered that she could not maintain it and (even if with regret) did not wish to proceed with it.
The hours complaint
72 The essence of Mrs French’s submissions was that the Tribunal had erred in law in that it had not applied the tests for disability discrimination required by s 49B of the Act, and that Bell AJ had also erred in his understanding of those tests and hence had failed to identify the Tribunal’s error.
73 Section 49B(1) provides -
“49B What constitutes discrimination on the ground of disability74 The proscription on discrimination in employment is found in s 49D -
(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.”
“”49D Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(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) for the purposes of a private household, 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) would be unable to carry out the inherent requirements of the particular employment, 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:
(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 taken to be a related corporation within the meaning of the Corporations Law .”
75 Section 49B(1) describes two kinds of discrimination. That in para (a) has come to be known as direct discrimination, and that in para (b) has come to be known as indirect discrimination (see Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 175, 182-3; Waters v Public Transport Corporation (1991) 173 CLR 349 at 357, 392-3, 400; I W v City of Perth (1997) 146 ALR 696 at 699, 709, 723). Before the Tribunal, Mrs French relied on both kinds of discrimination, and on the proscriptions in s 49D(2)(a), (b) and (d). She was already employed by the Club, and the Club did not dismiss her, so the proscriptions in s 49D(1) and (2)(c) did not arise.
76 It followed that the exculpation in s 49D(4) also did not arise, and hence the agreement before the Tribunal that the Club could not rely on what was called the “unjustifiable hardship” section (see s 49D(4)(b)); hence also, the Club could not rely for exculpation on inability in Mrs French to “carry out the inherent requirements of the particular employment” (see s 49D(4)(a)). The only available exculpation suggested in the course of the inquiry was to do with occupational health and safety.
77 In dealing with the hours complaint the Tribunal had to consider -
(a) Direct discrimination
(i) whether the Club treated Mrs French less favourably than in the same circumstances, or in circumstances which were not materially different, the Club treated or would treat a person who did not have her disability; and
(ii) if the answer to (i) were yes, whether the Club did so on the ground of Mrs French’s disability.
(iii) if the answer to (ii) were yes, whether the club did so in or by one of the circumstances in s 49D(2)(a), (b) or (d).78 The Tribunal expressed a conclusion which might have encompassed step (iii), that “in continuing the complainants’ employment in the way they have done they have not breached s 49D(2)(a), (b) and (d) of the Anti-Discrimination Act”. The conclusion, however, must have been dependent on steps (i) and (ii).
79 It was agreed that Mrs French had a disability, and it was agreed what the disability was at least to the extent that it was agreed that she had the physical restriction of inability to lift trays of glasses from a squatting position. The Tribunal did not make a finding as to any further physical restrictions, save so far as it might be inferred that it found that Mrs French was unable to do whatever was involved in restocking the refrigerator with cans of beer, moving the cash register for cleaning, and perhaps setting up the bar and at the end of the day packing the stock, cleaning and finishing up duties.
80 Confining attention to the agreed physical restriction for present purposes, and to step (i) in ascertaining whether there was direct discrimination, the Tribunal had to ask whether the Club treated Mrs French less favourably than in the same circumstances, or in circumstances which were not materially different, it treated or would treat a person who did not have the physical restriction of inability to lift trays of glasses from a squatting position.
81 What question did the Tribunal ask? It described “the matter at issue” as the competence of Mrs French to work a full shift, or whether she was only able to work for a four hour shift. That could go only to the effect of Mrs French’s disability. The extent of her physical restrictions was in issue, so it was appropriate for the Tribunal to find what her disability was, and it was also appropriate for the Tribunal to find what the effect of her disability was. But it was only part of the question. The Tribunal’s reasons otherwise indicate the question it asked by the answer it gave, namely, that the Club had not treated Mrs French “less favourably than in effect than any other person in the same circumstances, or in circumstances which are not materially different”, read with what may be seen as the reasons for the answer.
82. Mrs French submitted that the answer demonstrated that the wrong question had been asked. The comparison in treatment for which s 49B(1)(a) called, she said, was not between Mrs French on the one hand and “any other person” on the other hand, but between Mrs French and a person who did not have her disability.
83 This may be an unduly restrictive an approach to the reasons of the Tribunal. The Tribunal had s 49B(1) clearly before it, and by the first words in the larger phrase “in effect than any other person” it may have intended to refer to a person who did not have Mrs French’s disability - the “any other person” being another person who did not have the disability.84 Notwithstanding the possibility, I am left quite uncertain what question the Tribunal did ask, or why it gave the answer it did.
85 The sentence following what I have called the answer, in which the Tribunal expressed the view that the Club had done “all it could to help the complainant in the circumstances, especially having regard to her disability”, to the extent to which it involved a comparison, involved a comparison with anyone else whom the Club might be moved to help. By the words “especially having regard to her disability”, it could even suggest that the Tribunal asked whether the Club had done as much to help Mrs French as it would have done to help some other person with the same disability. That would be an inversion of the correct question.
86 The only clue as to what the Tribunal had in mind as what the Club did to help Mrs French was the matter to which the Tribunal earlier said it paid particular regard, that the Club had consistently said that Mrs French could return to a full shift if she got “a medical clearance to say you can work”, but such a medical clearance had not been supplied. If this was thought to show that the Club treated Mrs French no less favourably than a person without her disability, it did so only in the sense that, assuming the fact, all persons were permitted to do what, with medical clearance, they were able to do. There was no finding as to the fact.
87 I do not know that the Tribunal thought in that way: if it did, it let the disability itself negate discrimination on the ground of the disability (cf letting unacceptable bases for differential treatment render the circumstances materially different, Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 194, 205-6, 208-9). This would frustrate the purposes of the Act, to borrow the phrase used in different but analogous circumstances in IW v City of Perth at 719 per Toohey J.
88 Bell AJ formulated the “issue” of whether Mrs French had been treated less favourably than an able bodied person would have been treated if employed by the Club as a bar attendant, and suggested that the parties had so conducted the proceedings before the Tribunal that the factual issue on which the answer to the question turned was the “matter at issue” earlier identified by the Tribunal.
89 However, I think it is evident that his Honour had some difficulty in ascertaining what the Tribunal had done and why. The Tribunal may well have seen the “matter at issue” concerning the competence of Mrs French to work a full shift, there being dispute over the extent of her physical restrictions, but the finding on that matter could not provide an answer to the questions which the Tribunal was required to address. Indeed, his Honour said that it was “not a correct statement of the legal issue raised by the enquiry”, and it is not easy to see why it should have been thought that the parties made the issue formulated by his Honour turn on the finding. With respect, I do not consider that his Honour’s reasons provide a satisfactory explanation of what the Tribunal decided and why.
90 The Club submitted that regard to the conduct of the proceedings before the Tribunal explained the Tribunal’s reasons, and showed that it had not erred in law. It referred to a number of passages in the transcript.
91 The agreed statement of facts was provided to the Tribunal shortly before the taking of oral evidence began. The transcript records -
“RUDLAND: Now in relation to the agreed statement of facts and the areas that remain in dispute, in my respectful submission this case is reasonably simple and it’s down to some very narrow facts. We say there is disagreement between the parties as to whether or not a clearance - a medical clearance for a full shift exists –
CHAIRPERSON: As to whether a medical clearance?
RUDLAND: For a full shift as opposed to a four hour shift, a pre-injury shift is this. We say that there was such a clearance given and, as I understand it, the respondent denies that. We say that there’s no dispute that there is a disability and that the reason for the failure to put the complainant back to her pre-injury shift is, at least in the majority part, if not the entire part, is because of the disability and that we say that the restrictions caused by the disability do not go to an essential requirement of the job, and that further in order to overcome the restriction that exists it would not create an undue hardship on the respondent to implement an mechanism to get around that problem. So really the issue comes down to whether or not a clearance exists and whether or not the complainant can perform - can work a full shift in a way that’s beneficial to all parties. And really that is the nub of it from our point of view, …
…
WARREN: In exhibit 2 paragraph number 10 the tribunal will see that there is an issue as to requests to be re-instated to her preinjury hours and the respondent’s evidence is that repeatedly it was indicated to her that when there is, if there were medical evidence available to the respondent to say she can do her pre-injury work, then they would engage her on that pre-injury work, and the respondent says that that has never been forwarded. And we note there is a doctor’s certificate—
CHAIRPERSON: What did you say? If there is medical evidence that she can work eight hours.
WARREN: If the respondent had received medical evidence to say that she can work eight hours and do the duties that were required of her in those eight hours, then the respondent would engage her for that time. The tribunal will see that there is a dispute with regard to a medical certificate, that will become evident, which alleges that she ‘ … is fit for full shift …’ and those are the words of the doctor, but the tribunal will see that that was a medical certificate given by the same doctor the day after he certified her as being unfit for an extended period of time as a result of a broken sternum and fractured ribs. And the respondent says that that isn’t - that they are incompatible and that indeed that isn’t a clearance to resume work, and that indeed the respondent required a clearance for her to resume work and do her work as was required of her in accordance with all of her duties.”
There was then evidence about medical certificates and their provision or non-provision to the Club, and in due course the cross-examination to which the Tribunal said it paid particular regard.92 Then in submissions by Mrs French’s counsel -
“A statement of agreed facts has been handed up and essentially when we bring the case down to what is the issue here, the areas of disagreement between the parties, in my respectful submission, is was there a medical clearance in relation to the complainant being able to work her normal duties, including a full shift; was there essential elements of the position of bar attendant and the extent of the limitations of the complainant through her disability to be able to perform those essential elements of the position and whether there were, in order to overcome any difficulties that the complainant may have in performing her full duties would there be an unjustifiable hardship upon the respondent.93 These passages should, however, be read bearing in mind that later the Chairman endeavoured to summarise the complaint and the response to it in terms not confined to the “matter at issue” -
It is the submissions of the complainant that indeed there was a medical clearance, that in fact the only element of the position of bar attendant that the applicant cannot perform is that of lifting trays of glasses from a below height position and the evidence in the course of these proceedings has not established that there are other elements of her position that she cannot perform.”
”CHAIRPERSON: Isn’t the situation Ms Rudland, the complainant claims she’s been discriminated against by her employer as he will not employ her for her full eight hours per day but only for four hours a day, is that your claim in a nutshell or not?
RUDLAND: Yes, that’s because of the disability.
CHAIRPERSON: And what’s your situation, do you agree that’s the complaint?
WARREN: We understand that’s the complaint.
CHAIRPERSON: Will we put because of a - I haven’t got because of a disability down there but we can argue about that in due course but the situation is your claim is that you’ve been discriminated against by your employer as he will not employ you for the full eight hours per day but only for four hours a day is that right.
RUDLAND: Yes and we say it’s because of the disability because of the restriction that the disability places on her doing her duties, that is, she can’t lift from a squat position.
CHAIRPERSON: Well add that to because that’s your claim, that the employer won’t employ you eight hours a day but only for four hours a day because of a disability, is that right?
RUDLAND: Yes.
WARREN: We understand that to be the claim.
CHAIRPERSON: Back to you now Mr Warren. The employer says that due to the nature of the job they can employ her for four hours a day but due to the fact of her disability she cannot be employed for longer, is that correct or not?
WARREN: She cannot be gainfully employed for longer.
CHAIRPERSON: And you have no comment on that as I gather, that’s the other cases in a nutshell.
RUDLAND: Yes that’s right.
WARREN: Indeed gainfully or safely, depending on what duties she was required to do but I’ll come to that in my submissions.
CHAIRPERSON: What I was trying to do you see is trying to make sure that having eliminated a whole lot of matters from the case that everyone’s on the same wavelength, that’s all.”
94 The Club’s submission had two limbs.
95 The first limb was that the passages to which it referred showed that the parties had conducted the proceedings before the Tribunal on the basis that discrimination turned on “whether a clearance exists and whether or not the complainant can perform - can work a full shift in a way that’s beneficial to all parties”.
96 These may have been seen as issues of fact, but they were inadequate for the questions the Tribunal had to address. The Tribunal was asked to address more than the issues of fact. The transcript shows that Mrs French’s counsel specifically put submissions, with reference to decided cases, that “less favourably” required that there be two sets of circumstances -
“RUDLAND: … so that it can be determined by a comparison whether the treatment in the former is less favourable in the latter, with saying the case in hand, that you would look at the complainant as opposed to the other bar attendants, and we say that there is less - the complainant is being treated less favourably in so far as she is not being offered the same hours of work as other persons.
I think it’s Mrs Freebody’s evidence that there is not [sic] other bar attendant working a four hour shift. That decision stands for the proposition that the test as to where discrimination hasn’t occurred is an objective one, and its not necessary to show the respondent intended to discriminate against the complainant.”
97 Reading the transcript beyond the passages to which the Club referred, I do not think the parties conducted the proceedings before the Tribunal in the manner suggested, and I am not able better to understand what the Tribunal decided and why in the light of the passages to which the Club referred.
98 The second limb was that the passages to which it referred showed that the Tribunal had concluded that the Club had not treated Mrs French less favourably than the other person “on the ground of” her disability, but either because she could not work a full shift or because she had not provided a medical certificate permitting her to work a full shift. Hence, it was said, the Tribunal paid its particular regard to the cross-examination set out in its reasons.
99 If that is what the Tribunal decided, and why, in all probability it was in error, because the facts were unlikely to have been such that there was any material distinction between discrimination on the ground of Mrs French’s disability and discrimination on the ground of either her inability to work a full shift or the fact that she had not provided a medical certificate permitting her to work a full shift. The inability to work a full shift was in all likelihood because of her physical restriction, and she could not provide a medical certificate permitting her to work a full shift because of her physical restriction. But whether the Tribunal did reason as the Club suggested, whether if it did so reason it was in error, and whether it reasoned in some other way not involving error, can not be seen from its reasons.
(b) Indirect discrimination
100 This can be dealt with much more briefly. In short, again it can not properly be seen from the Tribunal’s reasons what it decided, and why.
101 The Tribunal gave no reasons for its bald conclusion that “the circumstances of this case do not fall within “the terms of s 49B(1)(b). It may have been right, but its findings do not enable that to be judged. Bell AJ said that s 49B(1)(b) “is not directed to the present situation”, but without the benefit of findings and at least some consideration of the requirements of the provision, again its application as between Mrs French and the Club can not properly be determined.
102 The decision in this respect can not be upheld on the ground that, even if s 49B(1)(b) was “directed to the present situation”, the Tribunal found that the Club’s “requirements in respect of the complainant are quite reasonable”. The findings to explain this are not stated, and whether a requirement is reasonable may be affected by the exercise of identifying the putative discriminatory conduct.
103 Nor can the decision in this respect be upheld, as the Club submitted, by regard to the Chairman’s remark in the course of submissions, “We’ve got no evidence to bring the first bit into operation anyhow”. In context, the remark was in connection with s 49B(1)(b), but the Tribunal’s reasons do not reflect it, and in this respect a remark in the course of submissions is not a substitute for reasons. Whether the remark was correct was not the subject of submissions in this appeal.
Leave to appeal
104 Leave to appeal in relation to the paronychia complaint should be refused. It is a relatively minor matter, and in any event no error of law has been shown.
105 Leave to appeal in relation to the hours complaint should be granted. Although less than $100,000 is at stake, the amount at stake is not insignificant (particularly, it may be inferred, to Mrs French), but more important Mrs French was entitled to a determination of her complaint according to law and has not received it. It is true that, as the Club submitted, Mrs French must receive the indulgence of an extension of time to apply for leave to appeal after “a belated reversal of her forensic decisions”, but I consider that indulgence should also be granted.
106 The Tribunal erred in law in dismissing Mrs French’s complaint without making findings appropriate to address the questions required by s 49B(1)(a) and (b) and addressing those questions. The appeal in relation to the hours complaint should be allowed, and the decision of the Court should be remitted to the Tribunal for the complaint to be dealt with according to law.
The appeal
107 (1) Extend the time for the appellant to apply for leave to appeal from the decision of Bell AJ given on 23 June 1998 until 17 August 1998.
Orders
(2) Grant leave to appeal limited to the decision on the complaint of disability discrimination in relation to the injury to the appellant’s back and right leg (“the hours complaint”).
(3) Allow the appeal in relation to the hours complaint and set aside the dismissal by Bell AJ of the summons filed in the Administrative Law Division so far as the dismissal was in relation to the hours complaint.
(4) Allow the appeal from the decision of the Equal Opportunity Tribunal (“the Tribunal”) so far as the Tribunal dismissed the hours complaint and set aside the Tribunal’s dismissal of the hours complaint.
(5) Remit the decision of this Court to the Tribunal for the hours complaint to be dealt with according to law.
(6) Order the first respondent to pay the costs of the appellant of the summons filed in the Administrative Law Division and of this appeal.
(7) Grant to the first respondent if qualified a certificate under the Suitors’ Fund Act.________
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