French v Sydney Turf Club Ltd (No. 2)
[2002] NSWADT 98
•06/11/2002
CITATION: French v Sydney Turf Club Ltd (No. 2) [2002] NSWADT 98 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Margaret Winifred French
RESPONDENT
Sydney Turf Club LtdFILE NUMBER: 212/96 HEARING DATES: 06/02/2001, 04/05/2001, 12/02/2002 SUBMISSIONS CLOSED: 02/12/2002 DATE OF DECISION:
06/11/2002BEFORE: Goode P - Judicial Member; Mooney L - Member; Clayton S - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: French v Sydney Turf Club & Anor [1999] NSWCA 195
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Waters v Public Transport Corporation (1991) 173 CLR 349
IW v City of Perth & Ors (1997) 146 ALR 696
Briginshaw v Briginshaw (1938) 60 CLR 336
O'Callaghan v Loder [1985] 3 NSWLR 89
Waters & Ors v Public Transport Corporation (1991-92) 173
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Waterhouse v Bell (1991) 25 NSWLR 99
Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd [(1993) 46 FCR 301; 118 ALR 80
Kitt v Tourism Commission & Ors (1987) EOC 92-196
State Transit Authority v Sloey & Anor (1999) NSWSC 47
Burrows v NSW Commissioner of Police (1994) EOC 92 - 654
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358
Cullen v State Rail Authority (NSW) (1989) 31 1R 207
David Jones (Australia) Pty Ltd v "P" & Anor, 29 August 1997
Bugden v State Rail Authority of NSW (1991) EOC 92-360
Willis v State Rail Authority at NSW (1992) EOC 92-455
CLR 349
Drake Personnel Ltd v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432
Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149
Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239
Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252REPRESENTATION: APPLICANT
S Winters, barrister
RESPONDENT
R Warren, barristerORDERS: The complaint is dismissed
Background
1 At all relevant times, the Applicant was employed by the Respondent as a casual bar attendant, having commenced employment in 1972.2 On 10 September 1988, she suffered a work related accident resulting in injury to her back and right leg. At the time, she was employed on full shifts of 7 – 8 hours on each day race meetings were held at Rosehill Gardens and Canterbury Park racecourses.
3 She was absent from work from 3 November 1988 to 23 June 1989, during which period she received workers compensation payments from GIO Australia ("GIO"), the Respondent's workers compensation insurer. She returned to work on restricted hours of 4 hours per race meeting. She received weekly payments of compensation based on a full shift until 18 December 1991, when GIO ceased to make any further payments.
4 The dispute with GIO was eventually resolved by agreement between the parties on 7 May 1993, with the Compensation Court of New South Wales ordering the Respondent to pay the Applicant payment in relation to a 20 per cent permanent disability to her back, a 10 per cent permanent disability to her right leg, and pain and suffering.
5 After returning to work on 24 June 1989, the Applicant continued to work on restricted hours of 4 hours per race meeting. Her requests to the Respondent to reinstate her for her pre-injury hours of work were declined. The circumstances surrounding the requests, and the reasons for the Applicant not being placed back on full shifts, are in issue.
6 Sometime prior to 16 November 1993, the Applicant contracted a skin condition known as paronychia, affecting the long finger of her right hand particularly around the nail. (The date she contracted the condition is in issue.) She was off work by reason of the skin condition from 16 November 1993 to 13 June 1994. During this time, GIO made payments to her based on a 4 hour shift.
7 Eventually, the Applicant was rostered back at work on 7 September 1994, still on a 4 hour shift. She continued to request that she be returned to full shifts. Again, the circumstances surrounding the requests, and the reasons for the Applicant not being placed back on full shifts, are in issue.
8 On 2 September 1995, the Applicant was involved in a motor vehicle accident. She broke her sternum and suffered other injuries to the left side of her body. She returned to work on 13 January 1996 on a 4 hour shift without experiencing any problems. However, on 15 January 1996, after attending an insurance company doctor for a physical examination in relation to the motor vehicle accident, she aggravated her back injury and was unable to return to work until 17 February 1996.
9 On 15 May 1995, the Applicant lodged a complaint of unlawful discrimination with the President of the Anti-Discrimination Board (the "Board"). The President appears to have regarded the complaint as constituting two separate complaints, one, a complaint of discrimination in relation to the reduction in hours worked ("the hours complaint") and the other, a complaint of discrimination in relation to the paronychia ("the paronychia complaint").
10 The President noted in his report that the allegations appeared to involve discrimination on the ground of disability (applicable to incidents of discrimination alleged to have occurred after 8 August 1994) and discrimination on the ground of physical impairment, prior to this time. (When the Anti-Discrimination Act 1977 ("the Act") was amended, with effect from 8 August 1994, disability became the relevant ground of discrimination rather than physical impairment.)
11 It is agreed that for the purposes of the Act, up until 7 August 1994 the Applicant had a "physical impairment" and was a "physically handicapped person". With effect from 8 August 1994, it is agreed that the Applicant had a "disability".
12 It is alleged that by its conduct in restricting the Applicant's hours to 4 per shift, the Respondent (up until 7 August 1994) unlawfully discriminated against the Applicant on the ground of her physical impairment, within the meaning of s 49A(1), in contravention of s 49B2(a), (b) and (c) of the Act (as it then was).
13 It is further alleged that by its conduct in restricting the Applicant's hours to 4 per shift, the Respondent (from 8 August 1994) unlawfully discriminated against the Applicant on the ground of her disability, within the meaning of s 49A and s 49B(1), in contravention of s 49D(2)(a), (b) and (d) of the Act.
14 The Respondent denies that it unlawfully discriminated against the Applicant. It maintains that she cannot be gainfully employed for longer than 4 hours per shift without breaching the Occupational Health and Safety Act, 1983 ("the OHS Act").
15 The Respondent maintains that although the hours complaint is the only complaint presently before us, material relating to the Applicant's paronychia condition is relevant to an assessment of damages (in the event that the hours complaint is substantiated).
16 In its reply to the President dated 4 October 1995, (Tab 3 of the President's Report, Exhibit A), the Respondent admitted that the Applicant was only rostered for 4 hour shifts. It stated that the Applicant had approached management to have her hours increased but because of restrictions specified in medical certificates provided by the Applicant, the hours could not be increased. It was claimed by the Respondent that the restrictions precluded her from duties involving excessive lifting, stooping or bending (as stated by Dr Bamford in his letter of 21 June 1989) and, therefore, that she was not allowed to perform several of the normal duties of a bar attendant.
17 Specifically, the Respondent claimed in its reply to the President (Tab 3):
18 The Respondent also stated in its reply to the President that during a period when Mrs French was unable to work as a bar attendant because of her paronychia, she was offered alternate casual work in the cloakroom at no less pay. Although Mrs French disputes that the pay was the same, she agrees that she was offered work in the cloakroom, that she declined to take up the offer, and that she made it clear to the Club that she was only interested in work as a bar attendant.
· "Those normal bar attendant duties that Ms French cannot perform such as lifting trays of glasses to bench height, bending to remove products from the lower shelves of refrigerators, getting ice from hopper, restocking refrigerators, are performed for her by other employees.
· Work before and after the peak period of the day involves to a much greater degree, work which Ms French is unable to perform, such as lifting, restocking refrigerators, and generally, preparation and cleaning up activities. Accordingly, she could not be usefully employed during such periods.
· The Club has accommodated Ms French with her work restrictions by providing work at times when she can be usefully employed and by arranging for other employees to assist her by undertaking those tasks which she cannot perform.
· She cannot be reasonably accommodated to work outside of 4 hours per day as she would be unable to carry out the relevant requirements of a bar attendant's duties to be performed during those extended hours."
19 In her response to the President (Tab 4), the Applicant disputed much of what was said by the Respondent. In particular, she claimed that correspondence to the Respondent from the GIO, dated 13 June 1989, indicated that it was the opinion of the Medical Department that she would be capable of performing her normal pre-injury duties for 4 hours per day and that this could be increased by one hour per day each week until she was working a full day. (The GIO's letter became Exhibit D.)
20 Neither the hours complaint nor the paronychia complaint was able to be resolved by conciliation. Accordingly, on 21 August 1996, the President referred both complaints to the Equal Opportunity Tribunal ("the EOT").
21 The EOT held an inquiry into the matter by receiving both oral and documentary evidence. The parties were legally represented, the Applicant by Ms N H Rudland of counsel and the Respondent by Mr R S Warren of counsel. On 13 February 1998, it ordered that "the complaint" be dismissed. Reasons for the decision were published on 25 February 1998.
22 The EOT did not inquire into the paronychia complaint. It appears that this occurred as a consequence of an agreement between the parties' legal representatives that the paronychia complaint was "out of time" (in that the relevant incidents of discrimination preceded December 1994) and, therefore, that an estoppel operated from pursuing the complaint before the Tribunal. (In fact, the President had accepted the complaint notwithstanding that it was "out of time".)
23 The Applicant appealed to the Supreme Court on various questions of law. The appeal was heard by Bell A J on 18 June 1998, with reasons delivered on 23 June 1998. The appeal was dismissed.
24 The Applicant then appealed to the New South Wales Court of Appeal. She was represented by Ms S W Winters of counsel. The Respondents were represented by Mr R J Buchanan QC and Mr Warren. On 18 June 1999, the judgment of the Court was delivered by Giles JA (with Priestley JA concurring and Meagher JA dissenting). The Court set aside the EOT's dismissal of the hours complaint and ordered that the matter be remitted to the EOT for the hours complaint to be dealt with according to law : see French v Sydney Turf Club & Anor [1999] NSWCA 195.
25 The Court of Appeal held that the EOT had not erred in law in acting on the agreement entered into between the parties' legal representatives, notwithstanding the error it made in relation to the complaint being out of time. Accordingly, the paronychia complaint was not remitted to the EOT.
26 Although the Equal Opportunity Tribunal has now been abolished, the general savings provision (clause 17, Schedule 5 to the Administrative Decisions Tribunal Act 1997 ("Tribunal Act")) permits the inquiry into the remitted complaint to be completed by the Administrative Decisions Tribunal ("the Tribunal").
27 In due course, evidence in relation to the hours complaint was heard by this Tribunal (differently constituted from the Tribunal which conducted the first inquiry) on 6 March 2001 and 4 May 2001. The Applicant was represented by Ms Winters and the Respondent by Mr Warren. The Tribunal's decision was reserved.
28 By letter dated 8 September 2001, before the Tribunal had handed down its decision, the Applicant notified the Registrar of the Tribunal that she was no longer represented by either Ms Winters or Ms Wright (her former solicitor) and that she would now be representing herself. She also stated in her letter of 8 September that she wished to make an application before the Tribunal to re-open her case. For various reasons, the application was not able to be heard until 12 February 2002.
29 On 27 February 2002, we found that the interests of justice did not require that leave to reopen the Applicant's case be granted. Accordingly, we dismissed the application : see French v Sydney Turf Club Ltd [2002] NSWADT 24.
Pre 8 August 1994 : Relevant Provisions of the Act
30 The terms "physical impairment" and "physically handicapped person" were defined in s 4(1) of the Act as follows:31 Sections 49A(1) and (3) provided:
"'[P]hysical impairment', in relation to a person means any defect or disturbance in the normal structure and functioning of the person's body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment."
"'[P]hysically handicapped person' means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life."
32 The proscription on discrimination in employment was found in s 49B. Section 49B(2) provided:
"49A (1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of –
he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person.
(a) his physical impairment;
(b) a characteristic that appertains generally to persons having the same physical impairment as the physically handicapped person; or
(c) a characteristic that is generally imputed to persons having the same physical impairment as the physically handicapped person;,
. . .
(3) A person discriminates against a physically handicapped person on the ground of his physical impairment if he requires the physically handicapped person to comply with a requirement or condition –
(a) with which a substantially higher proportion of persons who are not physically handicapped persons comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the physically handicapped person does not or is not able to comply."
33 Section 49L provided certain exceptions for conduct which would otherwise constitute discrimination on the ground of physical impairment.
"49B (2) It is unlawful for an employer to discriminate against an employee who is a physically handicapped person on the ground of his physical impairment –
(a) in the terms or conditions of employment which he affords him;
(b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing him or subjecting him to any other detriment."
34 Section 49L(2) relevantly provided:
Commencing 8 August 1994 : Relevant Provisions of the Act
"49L (2) Nothing in . . . section 49B(2)(a) or (b) . . . renders unlawful discrimination by an employer, principal or person against a physically handicapped person on the ground of his physical impairment in respect of any determination by the employer, principal or person of any terms or conditions relating to the physically handicapped person that are reasonable having regard to either or both of the following:
(a) any limitation or restriction that the physically handicapped person's physical impairment would or does impose on his ability to carry out the work required to be performed in the course of the employment or engagement concerned;
(b) any services or facilities which would be or are required by the physically handicapped person in order to carry out the work referred to in paragraph (a) and which would not be or are not required by persons who are not physically handicapped persons."
35 Pursuant to s 4(1), "disability" is defined as:36 In the present case, the Applicant relies on paras (a) and (c) of the definition of "disability".
"(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
37 Section 49A provides:
38 Relevantly, section 49B provides:
"49A A reference in this Part to a person's disability is a reference to a disability:
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability, or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)."
39 The proscription on discrimination in employment is found in s 49D. Section 49D(2) provides:
"49B What constitutes discrimination on the ground of disability
(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 . . . , the perpetrator:
(2) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(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
(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 . . . comply or 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.
. . .
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
"49D (2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
40 Section 49D(4) relevantly provides:
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment."
The Applicant's Case
"49D (4) Nothing in subsection . . . 2(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer."
41 It is widely accepted that paras (a) and (b) of s 49B(1) (and under the former Act, ss 49A(1) and 49A(3)) respectively describe what has come to be known as direct and 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; IW v City of Perth & Ors (1997) 146 ALR 696 at 699, 709, 723). Although Mrs French originally relied on both kinds of discrimination before the EOT, we understand her to now be relying on only direct discrimination.42 Mrs French relied on s 49D(2)(a), (b) and (d) of the present Act before both the EOT and the present Tribunal. Given that she has not been dismissed by the Club, para (c) of s 49D(2) has no application and the Club can therefore not rely on either of the exculpatory provisions set out in s 49D(4)(a) and (b), the "inherent requirements" and "unjustifiable hardship" provisions respectively.
43 In relation to the circumstances prior to 8 August 1994, the Applicant appears to place reliance on s 49B(2)(a) and (b), as well as para (c). If reliance is placed only on para (c), s 49L(2) has no application and the Club is therefore unable to rely on either of the exculpatory provisions set out in paras (a) and (b) of s 49L(2).
44 If reliance had been placed only on paras (a) and (b) of s 49B(2), the Respondent may have been able to escape liability by bringing its conduct within the exculpatory provisions of s 49L(2). However, we do not understand the Respondent to be relying on these provisions. Provided the Applicant can establish that she has been subjected to a detriment within the meaning of s 49B(2)(c), it appears to be unnecessary to also bring the Respondent's conduct within paras (a) and (b).
The Respondent's Case
45 As we understand the Respondent's case, it disputes that its conduct constitutes unlawful discrimination on the ground of either physical impairment or disability. The relevant test for unlawful discrimination is effectively the same under both the present and the former legislation. Accordingly, unless expressly indicated, hereinafter the term "disability" is used to refer to both disability and physical impairment.46 The Respondent maintains that its decision to restrict the Applicant's hours of work as a bar attendant was made in compliance with medical advice that she was unfit to perform all of the required duties of a bar attendant.
47 The Respondent specifically relies on the combined effect of s 54(1) of the Act and s 15(1) of the OHS Act to exempt it from liability. In doing so, it maintains that if, against specific medical advice, it had directed the Applicant to work a full shift and perform all of the required duties of a bar attendant during that shift, then it would have been in breach of s 15 of the OHS Act.
48 Section 54(1) of the Act relevantly provides:
49 Section 15(1) of the OHS Act provides:
"Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a) any other Act, whether passed before or after this Act.
. . . "
50 Section 15(2) of the OHS Act proceeds to direct an employer in the way that it must comply with s 15(1).
"Every employer shall ensure the health, safety and welfare at work of all his employees."
51 Section 109 of the Act (and the former Act) places the onus of proving the exception provided for in s 54(1) upon the Respondent.
Standard of Proof
52 In determining whether Mrs French has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362. See also O'Callaghan v Loder [1985] 3 NSWLR 89.Inquiry Under s 49D(2) of the Present Act and s 49B(2) of the Former Act
53 It seems clear that the inquiry under both s 49D(2) of the present Act and s 49B(2) of the former Act ("the former
s 49B(2)") is directed to the ground of the alleged differential treatment afforded to Mrs French. In this regard, even if the Club had no motive or intention to discriminate, its conduct may still be characterised as discriminatory within the meaning of s 49D(2) (and the former s 49B(2)). This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority : see, for example, the joint judgement of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation (1991-92) 173 CLR 349 at 359. See also the comments of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176-177; Waterhouse v Bell (1991) 25 NSWLR 99 at 106.
54 In relation to the present Act, s 4A (which came into effect on 8 August 1994) makes it clear that provided Mrs French's disability is one of the reasons for the Club's conduct, the conduct will still be regarded as unlawful under s 49D(2) even though the disability is not a substantial reason for the conduct. However, the necessary causal link must still be established.
55 Adopting the approach taken by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, we consider that in order to establish this link, we must be satisfied that the Respondent's conduct was "a real" or "an operative ground" of the alleged differential treatment afforded to Mrs French (acknowledging that it need not be the dominant or a substantial reason for the conduct in question). This is consistent with the approach adopted by Kirby J in IW v The City of Perth & Ors (1997) 146 ALR 696.
56 The insertion of s 4A into the Act in 1994 reflects the earlier comments of Clarke JA in Waterhouse v Bell at 106:
57 Notwithstanding the absence of s 4A in the former Act, relying on the above comments of Clarke JA, we consider that in order to bring her case within the former s 49B(2), Mrs French must also establish that the Respondent's conduct was "a real" or "an operative ground" of the alleged differential treatment afforded to her.
"In the event, however, that the Tribunal decides that there are two grounds for the action or decision, one which does and one which does not fall within [the prohibition] then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example, marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance."
The Applicant's Disability
58 As stated previously, the Respondent agrees that Mrs French has a disability within the meaning of both the Act and the former Act. We find that this concession has been properly made. Clearly, Mrs French's disability to her back and right leg falls within paras (a) and (c) of the definition of disability in s 4(1) of the present Act as well as the definition of "physical impairment" in s 4(1) of the former Act. Given that she is limited in her opportunities to enjoy a full and active life, we are also satisfied that she is a "physically handicapped person" within the meaning of that term in s 4(1) of the former Act.To whom is the Applicant to be compared?
59 Section 49B of the Act, and s 49A of the former Act, describe what constitutes discrimination on the ground of disability. Both sections require a comparison to be made between two ways of treating persons with a view to determining whether one way is less favourable than the other. The comparison is to be made between the way in which the Club treated Mrs French and the way in which it treats or would treat another person without such a disability in circumstances which are the same or not materially different.60 In making this comparison, the notional person to whom Mrs French must be compared, while being free of the disability, cannot be said to retain the characteristics imputed to or which characterise the disability. As was noted in IW v The City of Perth & Ors (1997) 146 ALR 696 by Toohey J at 719 and Kirby J at 746, any other approach would render the Act ineffective.
61 In that case, two of the Judges of the Full Court of the Supreme Court of WA had expressed the view that the respondents could not be said to have discriminated against people with an impairment (namely, being HIV positive or having AIDS) if the reason for the differential treatment was a characteristic not unique in people with such an impairment and the respondents would have treated all persons with such a characteristic uniformly.
62 In disagreeing with this approach, Toohey J made the following comments at 719:
63 In the present case, the Applicant contends that because she was not permitted to work a full shift, she was treated less favourably than the Respondent's other bar attendants. It is her case that an operative ground of this less favourable treatment was her disability. The Respondent, on the other hand, submits that it did not reduce the Applicant's working hours per shift on the ground of her disability but on the ground of medical "restrictions" imposed on her.
"Thus, he [the appellant] said, if infectiousness is a characteristic of sufferers of AIDS (which is an impairment) and people would discriminate equally against those who are infectious but who do not have AIDS, it would follow that there has been no discrimination under the Act [Equal Opportunity Act 1984 (WA)] against people with AIDS. Likewise, he said, if illegal drug use or homosexuality is a perceived characteristic of those who are HIV positive, discriminating against AIDS sufferers would not be contrary to the Act so long as the discriminator would also discriminate against illicit drug users and homosexuals who do not have AIDS.
The illustration given in the course of argument before the Court is apt. On the construction for which the respondents contended, if dangerousness was a characteristic imputed to paranoid or schizoid personalities, there could be no discrimination against persons with those personalities.
The point was made by the President of the Human Rights and Equal Opportunity Commission in a passage quoted by Wilcox J in The Commonwealth v Human Rights Commission [(1993) 46 FCR 191 at 209; 119 ALR 133 at 151] and by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd [(1993) 46 FCR 301 at 327; 118 ALR 80 at 104]:
'It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment . . . could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.'
In my view these considerations lead to the constitution of the Act argued for by the appellant and upheld by the Tribunal and Murray J."
64 Ms Winters submits that the appropriate comparator is a bar attendant who worked a full shift but who did not have the Applicant's disability, and therefore did not have the Applicant's medical restrictions. She further submits that if the Respondent's submission were to be accepted the comparator would be a person with similar medical restrictions but without the Applicant's disability. (Presumably such a hypothetical comparator would have some other disability, otherwise he / she would not have any such medical restrictions.) Ms Winters submits that this approach would totally frustrate the purposes of the Act because it would involve a comparison of the treatment afforded to the Applicant with the treatment it would afford another employee with similar medical restrictions.
65 It is the Respondent's case that even if it had discriminated against Mrs French as alleged, it is entitled to rely upon the exemption provide for by virtue of the combined operation of s 54(1) of the Act and s 15(1) of the OHS Act. It is the Applicant's case that no such exemption has been established.
66 In order to determine whether the Respondent's conduct contravenes the Act and, if so, whether its conduct is exempt from liability, it is necessary to canvass the evidence in some detail.
The Evidence
67 It is convenient to discuss the evidence under various headings, commencing with the duties of a bar attendant.Duties of a Bar Attendant
68 Mr Michael John Kenny, the Respondent's Food and Beverage Manager, gave evidence that the Respondent conducts race meetings at Rosehill and Canterbury Racecourses and that each racecourse bar has a chargehand who is, in effect, the bar manager. He said that the casual bar attendants, including Mrs French, are answerable to their chargehand who in turn is answerable to him in his capacity as the Food and Beverage Manager.69 He gave evidence that there could be up to 80 bar staff working on a Saturday and that they were all casual employees. He said that it had been the Club's practice to give preference to the longest serving casual employees and that, on that basis, Mrs French would be one of the first to be given work. He also said that the minimum shift under the Federal Allied Liquor Award was 4 hours.
70 Mr Kenny gave evidence that he had prepared a document entitled "Job Description Bar Persons" ("the Job Description"), detailing the duties required to be performed by a casual bar attendant employed by the Respondent during the course of a full shift. He said that he had prepared the document in 1995 – 1996 for the earlier EOT hearing and that prior to that time, there had been no job description in existence. He also said that in drawing up the Job Description he had relied on his own day-to-day observations as well as consulting with Mr Randall, the General Manager of Catering Operations.
71 At the conclusion of the document, the following words appear:
72 We discuss the various duties below as set out in the Job Description and the evidence given by Mrs French in respect of her capacity to perform each of the duties. The document covers setting up the bar, service, and duties on completion of trading. Mrs French disputed its accuracy, and stated that in all the years that she had worked for the Respondent she had never been given a description of either her duties or the duties of a bar attendant.
"Depending on the size of the bar and the number of staff working in it, some of these duties may be delegated by the chargehand to individuals. However to effectively cover all positions a barperson should be able to carry out the above job description."
1. Assisting chargehand to set up bar (approximately 10.30 – 11.00 am)
73 Mrs French gave evidence that notwithstanding her disability, she could perform the following tasks:74 Mrs French said she was not able to carry out the duties set out below without assistance. (She disputed that they were duties required of all bar attendants and maintained that they were the responsibility of either the chargehand or the bar attendant who assisted in setting up the bar, or the pick-up.)
· Roll out 2 – 3 foot bar towels on front service counter and rear service counter (number depends on size of bar). [Point A Exhibit 3, Annexure A]
· Check stock versus stocksheet to ensure correct record before arranging spirit stock along back counter for service. One bottle of major lines eg Brandy . . . to be set up in overhead dispensers if applicable. [Point B]
· Arrange jugs of ice water (1140 ml glass jug with water and ice approximate weight 3 kg) along bar to suit. Depending on size of bar this could be 1 or perhaps 6. [Point C]
· Check float before arranging suitably in cash register (weight approximately 3 kg). [Point D]
· Arrange coasters and ashtrays on tables in bar area and straws into glasses on bar for customer use. [Point E]
· Load either ice buckets or ice wells with ice from the ice hopper. This is done with either a scoop or an ice bucket (bucket weight 0.4 kg empty, 2.8 kg full of ice – volume 4 litres). [Point F]
(Mrs French gave evidence that she could only carry out this task from 1990 onwards. She said that following her return to work in 1989 she initially required assistance for the first year.)
· Slice lemons and arrange on plate for use in mixed drinks and soft drinks to suit. [Point G]
· Lifting spirit stock ranging from say 2 dozen 750 ml bottles up to 90 1125 ml bottles. [Point B]
· Cold stock may need to be rearranged to suit in the fridge. This may involve lifting and unpacking cartons of beer (approx 15 kg) in either an undercounter cabinet (below waist level) or upright display (standing). [Point B]
· Ensure there is an adequate supply of glasses (tray weight approximately 9 kg) to accommodate trade. [Point H]
75 Mrs French gave evidence that notwithstanding her disability, she could perform the following tasks:
· Greet customers politely, receive order, prepare order, dispense, register transaction, receive monies, return change. This process could be completed up to 1000 times during the shift course. . . . Standard process is to firstly obtain the suitable glass, add ice if required from bucket or well with the aid of a small scoop, add drink required via bottle from overhead (reaching above the head) off back service bench, from postmix dispenser, beer gun or tap (waist to chest height) or bottle from fridge usually located behind barperson involving turning away from customer and sourcing product required. [Point A]
· Once the order has been filled the next step is to register the transaction to determine the cost, relay the cost to the customer, receive monies, complete transaction and dispense change if applicable. [Point B]
· During the process of filling the order any stock shortages should be noted as the levels lower and not when the product has actually run out. If the product is available in the bar it should be sourced in preparation for replacement or else the bar person should duly notify the chargehand so arrangements can be made for extra stock from the stores area. Just as important any problems with beer dispensing or post mix equipment should be reported to the chargehand immediately.
Effectively stock control ensures a smooth workplace and minimum disruption of service to the customer. As bottles are emptied in the overhead dispensers (if applicable) they should be replaced from back-up stock in stock cupboard. This involves reaching up above your head with both arms, detaching the empty bottle by releasing the locking pin with one hand and securing the bottle with the other. When the empty bottle has been brought down to the bar service counter the process is reversed with a full bottle (approximately 1 – 2 kg). [Point C]
· Service must always be carried out in a courteous and efficient manner ensuring the customer has a pleasant experience through the purchasing processing. [Point D]· In between ensuring stock levels and glass levels [see para 74 below] taking orders, preparing drinks, accepting monies, dispensing change, carrying out transactions on the cash register and remaining polite, courteous and efficient, it is also essential to maintain a clean, neat and tidy work station at all times. [Point F]
76 Mrs French gave evidence that she was unable to carry out the following duties. (She disputed that it was the bar attendants' responsibility to transfer trays of glasses to the service points. She conceded, however, that it was their responsibility to lift trays of glasses from under the counter.)
· Also ice wells or buckets need to be continually refilled from the ice hopper. [Point E]
77 To also ensure efficient service with minimum disruption sufficient glasses should always be sought from wherever available in the bar. Liaison with the chargehand and glass pick-ups is essential here as their co-operation is paramount to this result. Glasses may have to be transferred from lower racks or racks at the back of the bar to the service points, involving bending and lifting of up to 10 kg from shin height to waist height. This is a job of equal importance to both the barperson and the glass pick-up. [Point E]
3. Completion of Trading
78 Mrs French gave evidence that, notwithstanding her disability, she could perform the following tasks:78 Mrs French said she was unable to carry out the duties set out below. (However, she disputed that these were duties required of bar attendants, maintaining that they were the responsibility of the chargehand).
· Closing down the cash register and balancing takings (count money, record total, deduct float amount and calculate nett takings). [Point A]
· Condensing down stock (bring all spirit bottles together at back of bar including those from overhead dispensers if applicable), recording closing figures accurately on stocksheets to determine stock usage from sales analysis. [Point B]
· Pack stock away neatly in secured cupboards and / or refrigerated cabinets as supplied [provided it did not involve the lifting and unpacking of cartons of beer or wine (15 – 25 kg)]. [Point C]
· Proceed to clean the bar area concentrating on your service point, cash register, post mix heads, drip trays (empty of beer wastage and wash with hot water), service counter, beer dispensing panel (below waist height) . . . All counter tops front and back should be wiped clean. Ice water jugs to be emptied and locked away, ashtrays (if applicable) washed and locked. Dirty linen (bar runners) to be gathered for return to laundry area.
Once the cellarman has disconnected the beer it may assist him / her by pulling the water through the lines and checking to ensure the temprites are turned off (usually about knee height or lower under the bar) by turning two valves in a clockwise direction against the side of the temprite until closed. [Point D]
· Once cash is reconciled, stock counted and recorded and the bar is cleaned thoroughly a barperson must always check with his / her chargehand before signing off from shift. At this point the chargehand is responsible for the correct closure of the bar and any assistance needed should be given by the barpeople before completing work. [Point E]Additional Evidence in Respect of Duties of a Bar Attendant
· [When packing stock away] this may involve the lifting and unpacking of cartons of beer or wine (15 – 25 kg). [Point C]
· [T]he moving of the cash register (approximately 10 kg) to facilitate cleaning underneath. [Point D]
79 The Respondent relied on the evidence of Barbara Freebody, a former casual bar attendant who worked a full shift with the Club, to support the evidence of Mr Michael John Kenny. Her evidence was not challenged by the Applicant. Although she was available to be cross-examined on her statement, the Applicant's counsel chose not to question her.80 She said that pick-ups did not start work until 12 noon at the earliest and, therefore, in setting up the bar there were no pick-ups available to lift trays of glasses. She also said that because of the time lag between meetings, which was a minimum of 1 week, it was always necessary to re-wash all of the glasses to remove film dust before a shift started. She said that this entailed taking glasses to and from the wash room.
81 Ms Freebody's statements became Exhibits 7 and 8 respectively. She gave evidence that upon commencing her shift at 10.30 am, she set up the bar. As part of her duties, she said she carried 4 – 5 bottles of liquor at a time (totalling approximately 20 bottles) from cupboards at the back of the bar to the bar service area. In addition, she said she carried 2 litre glass flagons of wine and 4 litre bottles of orange juice from a fridge at the back of the bar to the bar service area. She also said that cartons of stubbies of beer containing 24 bottles had to be carried to stock the fridge.
82 She gave evidence that she was required to lift trays of glasses from the top of the bar and take them to the wash area. She said each tray held either 30 middy glasses or 30 seven ounce glasses, and that to set up the bar for 3 people it is necessary to carry 12 – 14 trays of middy glasses and 6 trays of seven ounce glasses. She also said that after the glasses are washed they are taken back to the bar service area and placed in racks below the bench top. When a tray is empty, she removes it and replaces it with the next full tray. When 3 trays of clean glasses have been used, she said she removes the empty trays and places them beside her before collecting clean trays of glasses from either the end of the bar or the wash room.
83 She said that bottles of spirits are placed in the spirit dispenser which is located above head height. She said that sometimes during the course of a shift it is necessary to replace the scotch and bourbon bottles.
84 She also gave evidence that during the course of the shift ice buckets have to be filled periodically from the ice bins, and that from time to time it becomes necessary for water jugs located on the bar bench tops to be refilled.
85 She also said that during the course of the shift, it is necessary from time to time to bend down to lift orange juice containers, flagons of wine and stubbies from the fridge. She said that these items have to be re-stocked during a shift regularly and that this entails carrying stock from the fridge unit at the back of the bar to the bar service area.
86 At the end of a shift, she said she carried out numerous duties including the following:
87 She disagreed that it was the role of pick-ups to put glasses on top of the bars and fill ice buckets but said that they may do so if they are not otherwise busy. She said that it was always the duty of bar attendants to fill the ice bin. She also said that the pick-ups put the glasses in drying racks in the wash room and, if time permitted, put trays of glasses in service areas but not on top of the bar.
· wiping out fridges and cleaning drip trays
· attending to wash up
· counting the takings, counting the stock, and carrying unused stock from the bar service area back to the storage cupboards
· removing spirit bottles from the overhead dispenser and returning them to storage
· carrying empty bottles to the back of the bar for end of shift stocktake
· moving cash registers by sliding them.
88 In cross-examination, Mrs French said that Mrs Freebody was the first starter and that she started work at the same time as the chargehand. She also said that they were both responsible for setting up the bar.
89 When giving evidence in reply, Mrs French said that aside from the chargehand and the first starter, the other bar attendants came to work at staggered hours. She said that if there were five people rostered on for a shift, some started at 11.00 am and others at 12 noon. Both Michael John Kenny and Mrs Freebody said that, so far as they were aware, Mrs French was the only bar attendant who worked for the Club on a restricted shift.
90 Mr Michael John Kenny was cross-examined about the duties of bar attendants who worked a full shift. He agreed that the vast majority of time was dedicated to serving customers. He said that the primary responsibility of the pick-ups was to bring the glasses off the floor, put them into the racks, get them washed, and back into the bar area. He said, however, that if the pick-ups were busy, the bar attendants could be required to wash the glasses.
91 Mr John Moore, a casual bar attendant employed by the Respondent, gave evidence that, at the relevant time, bar staff did not usually leave the bar to obtain stock and that it was the responsibility of the chargehand and the bar useful to keep the fridges stocked during a shift. However, in cross-examination, he said that from time to time the bar staff might be asked by the chargehand to obtain stock. Mrs Freebody said she had seen him leave the bar to obtain stock many times.
92 Mr Moore also said that he had seen Ms Freebody wheel cartons of beer and wine on a trolley. He said some bar attendants would life the cartons from the trolley, while others would fill the fridge from the trolley to save lifting the cartons.
93 He gave evidence that it was the responsibility of the pick-ups to ensure at all times that there were glasses in the racks. He said that in the majority of cases, there is one person who washes the glasses, then puts them in the racks beside or under the bar attendant's service area. He also said that although he had collected trays of glasses from the washroom many times, a good pick-up should ensure that the bar attendant did not leave his or her outlet to chase glasses.
Medical Evidence
94 The history related earlier in this decision indicates that following her injury, the Applicant did not return to work until 24 June 1989. Her return to work for 4 hours per day was consistent with a report, dated 13 June 1989, prepared by Mrs Nicholas of the Workers' Compensation Claims unit of the GIO. Her letter reads:95 By letter dated 29 June 1989, the Respondent's Payroll and Personnel Manager, Mr Bishop, replied to the GIO's letter. His letter reads:
"It is the opinion of our Medical Department that Mrs French would be capable of performing her normal pre-injury duties for 4 hours per day. This time could be increased by one hour per day each week until she is working a full day. It is the same opinion, that this could be done without the aid of a Rehabilitation Provider, however, an initial assessment is being carried out by the Commonwealth Rehabilitation Service at the present time and a decision of further rehabilitation involvement will be decided on receipt of their report.
We will contact you as soon as the report is to hand and a decision made. However, we would like you to confirm with us if you can provide work for Mrs French on a part-time basis." [Exhibit D]
96 The medical certificates of Kalev Wilding and Murray Bamford referred to in Mr Bishop's letter were not tendered as evidence in the present proceedings.
"With reference to your letter dated 13 June 1989, I confirm that Mrs French has now worked four hours each day at the race meetings held on 24th and 28th June 1989 and will continue to do so until the circumstances change.
Certificates from Kalev Wilding and Murray Bamford are attached. I shall be pleased if you will advise me of the present and future position relating to this claim." [Exhibit E]
97 However, reference is made to a "letter" written by Dr Bamford in the Respondent's correspondence with the Board (Exhibit A, Tab 3) wherein Dr Bamford states:
98 On 10 July 1989, Mr Davison, a Rehabilitation Counsellor with the Commonwealth Department of Community Services and Health, forwarded a letter to the Workers' Compensation Claims Unit of the GIO. Relevantly, the letter reads:
"The restrictions are that she is now fit for modified duties not involving excessive lifting, stooping or bending."
99 The evidence shows that ongoing medical certificates were prepared by Dr Bamford (the Applicant's local general practitioner) until 13 September 1989. His certificate of 6 July 1989 states that from 24 June to 5 August 1989, Mrs French would be fit for light duties on a 4 hour shift. In his certificate of 1 August 1989, Dr Bamford stated that from 5 August – 19 August 1989, the Applicant would be fit for 4 hour shifts only without heavy lifting, stooping or bending [our emphasis]. The only other certificate prepared by Dr Bamford to make any mention of the Applicant's restrictions is that dated 7 September 1989, wherein he states that from 19 August 1989 to 25 August 1989, the Applicant was:
"Mrs French returned to bar duties at the Sydney Turf Club on 24 June 1989 in accordance with medical certification from GIO. She is working four hour shifts and will apparently be upgraded to full six hour shifts in a month's time.
. . .
She is keen to be considered for an appropriate work conditioning program and an assessment for this will be carried out at Hurstville Regional Unit. Staff at the unit will be in contact with your office to advise of any recommendations for future rehabilitation assistance."
100 By report dated 5 October 1989, Ms Gibson of the Commonwealth Rehabilitation Service stated the following:
"[F]it for modified duties only involving 4 hour shifts avoiding lifting, stooping or bending." [Our emphasis]
101 Ms Gibson also stated in her report that Ms French's condition had not stabilised sufficiently to provide an accurate assessment of her work capability and readiness. She recommended that Mrs French undergo regular physiotherapy and participate in a graded activity program and a back education group.
"The Rehabilitation Specialist examined Mrs French on Wednesday, 27 September 1989. He found her to have chronic lower back pain exacerbated by bending, prolonged sitting and standing. Pain is relieved by medication, heat and lying down.
It is considered that Mrs French's stated levels of pain and limited physical tolerance preclude a return to work for the present. Mrs French is considered likely to benefit from a Back Education Program and relaxation as she has elements of tension."
102 A subsequent report prepared by the Commonwealth Rehabilitation Service, dated 3 January 1990, stated that Mrs French was considered, at the time, to have no further rehabilitation needs but that she would benefit from further treatment in the form of hydrotherapy (which she was undertaking) and psychological counselling.
103 The section of the above report prepared by the Occupational Therapist, Ms Weigall, included the following remarks:
104 The section of the report prepared by the Rehabilitation Counsellor, Ms Monteith, indicated that Mrs French had reported being able to cope with her 4 hour shifts:
"On assessment she demonstrated:
lifting occasionally from floor level – 1.5 kg
from 500 mm (thigh height) – 3 kg
from 800 mm (waist height) – 5 kg
from 1300 mm (shoulder height) – 3 kg
from 1900 mm (overhead height) – 1.5 kg
Mrs French's most comfortable lifting range is between approximately 600 – 1000 mm as this range requires no bending or stretching. She should avoid lifting loads from below her thigh height as she cannot safely squat.
carrying occasionally over 10 metres – 3 kg
. . .
From her description, Mrs French's 4 hour shift at work in the bar is considered her current maximum tolerance, however Mrs French has the potential to increase her hours and shifts if her tolerance to pain improves, and if she is not required to lift in excess of her comfortable limits."
105 By report dated 7 August 1990, Dr Minogue, a medical officer with the GIO, expressed the view that Mrs French was not, at that stage at least, fit enough to work a 7 hour shift with appropriate restrictions. Dr Minogue said that this view was contrary to that given by a Dr Potter who had seen her on 2 July 1990. He said that Dr Potter felt she was fit enough to work a 7 hour shift with appropriate restrictions. In Dr Minogue's opinion, a 4 hour shift was, at that stage, the Applicant's limit:
"In June [1989] Margaret commenced a graded return to work on medical recommendation : she was advised to work no more than two four hour shifts per week, and not to carry out any heavy lifting or excessive bending (it was agreed that she would get other staff members to carry out these tasks as necessary). Margaret is still working on this light duties basis and reports being able to cope with these conditions."
106 In his report dated 22 August 1991, Dr Millons, an Orthopaedic Specialist, expressed the opinion that Mrs French's prognosis was guarded and that continuing problems appeared to be inevitable. He said he had examined her on 21 August 1991. He stated in his report:
"She told me that she would be unable to work a 7 hr shift because this would inevitably entail some bending and lifting, which she is not expected to do during her 4 hrs shifts. Assuming this to be true, Dr Potter's suggestion would appear to be somewhat impractical at this stage. 4 hrs would also appear to be the limit when the claimant's present psychological status is taken into account."
107 In a supplementary report, also dated 22 August 1991, Dr Millons said he estimated the permanent impairment of Mrs French's back, as a result of her work injury, to be 15 per cent.
"She returned to work in June, 1989, still troubled by low back pain and right sciatica. She went back to work for seven weeks, was then moved to an outside bar where there was more bending and lifting involved. She had more trouble and had to go off work for another five weeks. She attended rehab. at Bankstown and Hurstville.
At the end of the five weeks, she again attempted a return to work, working four hours a day, one or two days a week and she seems to have continued at that level since. She does not think she could do any more hours. She just about copes with her work in the face of persisting low back pain spreading into the right groin.
. . .
She just about copes with four hours a day at the races and I cannot see her increasing her hours much beyond that."
108 Dr Daymond, an Orthopaedic Specialist, examined Mrs French on 19 October 1992. In his report dated 20 October 1992, he expressed the view that Mrs French had an ongoing incapacity related to her work injuries.
109 Dr Bodel, an Orthopaedic Surgeon, examined Mrs French on 26 June 1991. In his report dated 23 August 1991, he said:
110 In his report dated 11 January 1993, Dr Bodel noted that Mrs French continued to work about 4 hours per week on and off for the Respondent and that she reported continuing backache and left leg pain, a tightness in the leg and tingling in the toes of both feet. He also noted:
"The patient is now coping with lighter duty work at the STC, working four hour shifts only and I believe that she will continue to be able to cope with this level of activity.
The patient's long term prognosis is however a little guarded because of her degenerative change and vulnerable discs. She should avoid all activities that require frequent bending, twisting or heavy lifting.
The patient may deteriorate with the passage of time and any significant bending or twisting incident to the back could cause external disc disruption which may lead to the need for surgical intervention. At this time there is no indication that this will significantly improve her present level of function.
The patient does have some evidence of permanent impairment in the lumbo-sacral spine and I believe that this is due to degenerative change. I would estimate a 10% impairment of lumbo-sacral function."
111 Dr Bodel concluded his report by stating:
"Since last being seen the patient has continued to have exacerbations and remissions of back pain. She reports a further flare-up of discomfort just recently with bending and lifting activities while at work."
112 As previously indicated, Mrs French's workers compensation claim was settled by agreement between the parties on 7 May 1993 (see para 4 above).
"With improved physical fitness and the use of a lumbo-sacral corset, the patient should be able to cope reasonably well in a part-time capacity with most activities."
113 According to the Club's employment records, Mrs French was off work from 21 November 1993 to 6 September 1994 because of her paronychia. By report dated 10 July 1994, Dr Isaacs, a Consultant Dermatologist, stated:
114 Contrasted with Dr Isaacs' report, the Respondent relied on two reports of a Surgeon, Dr Patrick, each dated 6 July 1998, wherein he expressed the belief that it was "very likely" that recurrence of the Applicant's symptoms could accompany an attempted increase in working hours.
"I examined Mrs French on the 14 June 1994. I was pleased to see that her long standing problem with paronychia has finally cleared completely.
I feel that she is fit to return to work in her previous occupation (bar work)."
115 However, subsequent reports written by Dr Patrick stated the likelihood of recurrence somewhat differently. In his report of 10 August 1998, he stated:
116 In his further report dated 1 November 2002, Dr Patrick concluded:
"Further to my report . . .dated 6 July 1998 regarding Ms Margaret Winifred French, I believe it would be reasonable to state that, at this stage, the chronic paronychia affecting the long finger (right hand), does not in any way affect her ability to work; in fact, if further shifts were offered to her, Ms French believes she would be able to manage.
She would, however, need to continue to remain vigilant in relation to the early signs of development or recurrence of the fungal infection."
117 After her car accident on 2 September 1995, Mrs French was unable to return to work until 13 January 1996. Dr Saad, her general practitioner at the time, certified that she was unfit for her usual work until 11 January 1996. In his certificate dated 28 December 1995, he stated:
"With regard to symptoms complained of when seen by me on 20 February 1998 (under "present symptoms" on page 2 of my report of 6 July 1998 – item number 5) – it is clear that Ms Margaret French does not believe that if she were to work more than four hour shifts, then symptoms at the middle finger right hand would be likely to flare up.
I would agree, that if she has been symptom free for some six years now, then there is no medical contra-indication to her returning to eight hour shifts of work."
118 Interestingly, Dr Saad issued a second certificate on either the same day or the following day. The certificate appears to be dated 29 December 1995. It reads:
"Mrs Margaret French is suffering from fractured sternum / ribs and will be unfit for her usual work from 10/12/95 to 10/1/96."
119 It is the Applicant's case that the second certificate issued by Dr Saad "cleared" her to work a full shift subject to lifting restrictions. The Respondent disputes this and maintains that the certificate cannot be read in this way because Mrs French's normal shift at the time was only a 4 hour shift. For some unknown reason, the certificate was not provided to the Respondent until 22 February 1996.
"This is to certify that Mrs Margaret French is fit to work a normal shift with restrictions of lifting."
120 As a result of aggravating her back injury on 15 January 1996, in the circumstances outlined in para 8, Mrs French was certified by Dr Saad to be "unfit for her usual work" until 9 February 1996. The employment records show that she returned to work on a 4 hour shift on 17 February 1996.
121 Mrs French gave evidence that she had received Dr Saad's second medical certificate on the same day as the first certificate dated 28 December 1995. She said:
122 On 20 May 2000, Mrs French injured her shoulder and wrist as a result of a fall while working at the Club. Dr Saad certified that she was unfit to resume work until 26 February 2001. As of 4 May 2001, she gave evidence that she was still unable to return to work.
"[T]he reason why I asked the doctor on that occasion was because I was coming back to work from this sternum injury, and I asked him would he write a document stating that I could return to work, on a normal shift."
She disagreed that her shift for the previous 5 years could be described as her "normal" shift. She described it as a restricted shift.
The Applicant's Requests to Work a Full Shift
123 Mrs French gave evidence that not long after returning to work in 1989, she began to request that her hours be increased to a full shift. She said that despite her requests, a return to her pre-injury hours did not occur.124 She also gave evidence that after returning to work on 7 September 1994 (following a clearance from Dr Isaacs in relation to her paronychia), she had at least three meetings with Pat Parker and Michael Kenny of administration at which she sought a return to a full shift. She said that her requests were refused on the grounds that the Respondent did not believe that she was capable of working the full shift despite her insistence that she could and "a clearance from [her] doctor" following the injury to her back. Presumably, the "clearance" she was referring to was Dr Saad's certificate dated 29 December 1995.
125 Mr Michael John Kenny gave evidence that Mrs French had approached him and requested that her shift hours be extended. Although he could not recall precisely when those requests were made, he said he thought it was "fairly early on" after her return to work. He said he had told Mrs French that if she had a medical clearance, he could not see why she could not return to her full shift. He also said that he had not indicated to her what he meant by the term "medical clearance". In cross-examination, he was asked whether he meant by this that he wanted a medical certificate from Mrs French stating that she had no ongoing effects from her previous injuries. He replied:
126 He said that he had never seen such a medical certificate and that the Respondent's concern was that if Mrs French was permitted to work contrary to known restrictions, and problems developed, then the Respondent may be liable.
"Yeah, my meaning there was basically that I will take the instruction, those things would always be passed through our HR [Human Resources] department that if she had the right clearance, then I didn’t see any reason why that she couldn't return."
127 When cross-examined about his understanding of Mrs French's restrictions, he said that he had been told that there were bending, stooping and weight restrictions. He thought the weight restriction was "something around about seven or ten kilos" and that lifting two or three kilos probably would not constitute heavy lifting. When questioned about his understanding of the bending and stooping restrictions, he said he thought they related to Mrs French's ability to bend over and pick up items such as trays of glasses that were at a low height in the bar.
128 Mr Michael Thomas Kenny, the Respondent's current Chief Executive, gave evidence that he had no recollection of any communication with Mrs French where she sought a return to full hours.
129 Mr William Patrick Parker, the Respondent's former Chief Executive, gave evidence that in response to Mrs French's requests to return to a full shift, he said to her that the most important requirement was for her to provide the Club with a medical certificate confirming that she was fit to resume full time duties. He said that he had never seen a medical certificate confirming that Mrs French was "fit to resume full time duties of a casual bar attendant without restrictions. [Our emphasis.] He concluded by stating:
Findings
"As the complainant was not medically certified as fit without work restrictions, the respondent continued to roster the complainant to work part time shifts as a casual bar attendant engaged in dispensing drinks and related duties."
130 Applying the legal principles discussed earlier in this decision, we find that the Respondent discriminated against the Applicant in contravention of s 49D(2)(a), (b) and (d) of the present Act and s 49B(2)(a)(b) and (c) of the former Act. By limiting the Applicant's shift to 4 hours, we find that the Respondent treated her less favourably than, in comparable circumstances, it treated or would treat a person who did not have her disability. We further find that an operative ground of this differential treatment was her disability.The Combined Effect of s 54(1) of the Act and s 15 of the OHS Act
131 We now turn to discuss the issue of whether the Respondent was obliged to refuse the Applicant's requests to work a full shift in order to comply with s 15 of the OHS Act.132 When considering the combined effect of s 54(1) of the Act and s 15(1) of the OHS Act, the Equal Opportunity Tribunal (Mathews DCJ [as she then was] presiding) in Kitt v Tourism Commission & Ors (1987) EOC 92 – 196 said at 76,887:
133 Kitt was cited with approval by Barr J in State Transit Authority v Sloey & Anor (1999) NSWSC 47.
"There is no concept of reasonableness imported here. The question is not one of what the employer believed, nor of whether any such belief was reasonably held or based upon reasonable grounds. The sole question is whether, from an objective point of view, Mr Kitt's employment constituted a risk to the safety of other persons, within the meaning of sec. 15(1) and 16(1) of the Occupational Health & Safety Act."
134 In Burrows v NSW Commissioner of Police (1994) EOC 92 - 654 the Equal Opportunity Tribunal rejected the submission that ss 15 and 16 of the OHS Act provided an onerous obligation on an employer to the extent that an employer was obliged not to employ an applicant suffering from insulin dependent diabetes mellitus.
His Honour observed the following:
"Ss 15 and 16 create offences of absolute liability, and consequently no mens rea need be proved and there is no "defence" of honest and reasonable mistake. Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; Cullen v State Rail Authority (NSW) ( 1989) 31 1R 207. "
135 After examining the medical evidence before it, the Tribunal in Burrows concluded that:
136 The Tribunal's restricted approach in Burrows was consistent with that adopted by McHugh J in Waters v Public Transport Corporation (1991 – 1992) 173 CLR 349 at 413 when discussing the Victorian equivalent of s 54. McHugh J appears to have approached the issue upon the basis that in order to fall within the defence the alleged discriminator has to demonstrate that its conduct occurred pursuant to a specific requirement of the relevant legislation and that it was necessary for it to pursue such a course of conduct.
[T]he class of situation where the Complainant's health problem would pose a risk [was] so extremely unlikely as to render it unreasonable for the Respondent to rely on the defence."
The decision in Burrows was cited with approval by Abadee J in David Jones (Australia) Pty Ltd v "P" & Anor, 29 August 1997.
137 In David Jones (Australia) Pty Ltd, Abadee J observed that:
138 As was noted by the Tribunal in Kitt and Barr J in Sloey , although the apparently wide ambit of s 15(1) is qualified by the statutory defences available under s 53 of the OHS Act, such defences are to be disregarded in proceedings in which an employer pleads necessity under s 54(1) of the Act in an action based upon its discrimination against an employee. See also Bugden v State Rail Authority of NSW (1991) EOC 92 – 360 at 78, 470; Willis v State Rail Authority at NSW (1992) EOC 92 – 455 at 79, 268.
"The scope and operation of the specific exception in s 54(1) may in some cases be able to accommodate or operate as to permit reliance upon a relevant provision of the Occupational Health and Safety Act or other statute or regulation subject to such meeting the test stated in Waters by McHugh J as 413. There his Honour's reasons indicate a difficulty in meeting the strict requirements of s 54(1) where reliance is founded on general provisions such as s 15 or s 16 of Acts such as the Occupational Health and Safety Act : see also Burrows. "
139 In Sloey, Barr J expressed the view that in order to establish the defence of necessity for the purposes of s 54 of the Act, the State Transit Authority ("STA") had to do more than prove that Mr Sloey fell into a category of drivers who epidemiologically presented an increased risk of symptoms. The STA had to show that it was necessary to certify that Mr Sloey himself was unfit to drive a bus; that is, it was obliged to consider the risks that Mr Sloey presented as an individual. In Barr J's opinion, the STA had failed to do this.
140 Similarly, the Tribunal in Kitt noted at 76,887 that from a practical point of view, no issue would be likely to arise unless Mr Kitt actually suffered a major seizure at work and, accordingly, in determining whether the defence had been made out, it was necessary to consider two factual matters : first, the likelihood of Mr Kitt suffering a seizure while at work; and secondly, the likely consequences if he did so. The Tribunal found that had there been a substantial risk of further seizures, it would have been obliged to find that the defence had been established. However, it concluded that the evidence was overwhelmingly to the contrary (at 76,890).
141 As was stated by the Full Bench in Drake Personnel Ltd v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432, the general duties created by the OHS Act are directed at obviating "risks" to the health and welfare of persons in the workplace. Their Honours went on to say:
142 The Court in Drake adopted the following reasoning of the Full Court in Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 157 as a correct statement of law and principle in relation to s 15 of the OHS Act:
"The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work."
Findings
"Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" . . . is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident."
See also Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 253.
143 In order to determine whether the Respondent was obliged to refuse to reinstate Mrs French on a full shift (so as to comply with the OHS Act), it is helpful to consider the following matters:The extent of the Applicant's physical restrictions
· The extent of Mrs French's physical restrictions.
· The required duties of a bar attendant employed to work a full shift ("the required duties") which Mrs French was unable to perform.
· The extent to which Mrs French could safely carry out the required duties:
(a) without the Club accommodating her physical restrictions
(b) with the Club accommodating her physical restrictions.
144 Based on Dr Bodel's report of 23 August 1991, we find that Mrs French's physical restrictions preclude her from safely engaging in heavy lifting and frequent bending or twisting. Further, based on Ms Weigall's report of 3 January 1990, we are satisfied that her physical restrictions preclude her from safely lifting loads from below her own thigh height (as she cannot safely squat).The required duties
145 We set out below those duties which we consider Mrs French was unable to perform. We appreciate that Mrs French said that duties 2, 3 and 4 were variously the responsibility of the chargehand, the first starter, or the pick-up. Nonetheless, we preferred Mr Kenny's evidence on this point and found that it was consistent with that given by Mrs Freebody and, where noted, by Mr Moore.Carrying out the required duties without accommodation
1. Lifting trays of glasses, holding up to 30 middy glasses or 30 seven ounce glasses, to bench height so as to ensure an adequate supply of glasses.
2. Whenever necessary, transferring trays of glasses from the washroom to the service area. (Mr Moore said he had done this many times.)
3. Whenever necessary, stocking and restocking the fridge by carrying heavy stock from the fridge unit at the back of the bar of the service area. (Mrs Freebody said she had seen Mr Moore leave the bar to obtain stock many times.)
4. Packing heavy stock away.
146 Based on the medical evidence, discussed below, we find that Mrs French could not safely carry out all of the required duties of a bar attendant working a full shift without assistance.Carrying out the required duties with accommodation
147 Based on the medical evidence, we find that even if the Club were to accommodate Mrs French's physical restrictions by arranging for other employees to assist her with duties 1 – 4 in para 145 above, she still could not safely carry out the required duties. We discuss our reasons below.148 We find that the four hour restriction was initially advised by Mrs French's own doctor, Dr Bamford. He stated that even avoiding heavy lifting, stooping or bending, Mrs French was only fit for a four hour shift.
149 Notwithstanding the early optimism of Mrs Nicholas of the GIO in her report dated 13 June 1989 (before Mrs French had returned to work), reports prepared by the Commonwealth Rehabilitation Service on 3 January 1990 and 7 August 1990 indicated that a four hour shift was Mrs French's limit.
150 Dr Millons and Dr Bodel said nothing to suggest that Mrs French would be capable of working longer shifts. Dr Millons, in his report of 22 August 1991, advised that Mrs French was only just coping with four hour shifts in the face of persisting low back pain spreading into the right groin. Dr Bodel, in his reports of 23 August 1991 and 11 January 1993, advised that Mrs French should avoid all activities that required frequent bending, twisting or heavy lifting. He also advised that any significant bending or twisting incident to her back could cause external disc disruption which may lead to the need for surgical intervention.
151 Aside from Dr Saad's certificate of 29 December 1995, at no stage has Mrs French ever furnished the Respondent with a medical report which states that she can safely work a full shift, even with restrictions.
152 In contrast to the detailed and comprehensive medical evidence which indicated that Mrs French was unable to safely work longer than a four hour shift, even with restrictions, Dr Saad's certificate simply stated that Mrs French was fit to work a normal shift with restrictions of lifting.
153 When Mrs French gave evidence of what she understood Dr Saad to have meant by the words, "a normal shift", she said she had asked him to write a document stating that she could return to work on a normal shift. The evidence is silent as to whether Dr Saad had physically examined her before coming to this conclusion. Equally, there is no evidence that he was familiar with the earlier medical reports.
154 The evidence discloses that, as of 28 December 1995, Dr Saad considered Mrs French to be unfit for “her usual work” until 11 January 1996 because she was suffering from “fractured sternum/ribs”. Against a background where Mrs French had not worked more than a four hour shift since 24 June 1989, we find it unlikely that Dr Saad would at the same time (or the following day) have also certified her as fit to work a full shift (albeit with restrictions of lifting). In all the circumstances, we find that the expression “a normal shift” cannot be construed as a full 7-8 hour shift.
155 The Applicant did not call either Dr Saad or any specialist medical evidence to show that she could safely work a full shift, even with restrictions. She gave no reason for not doing so.
Conclusion
156 Taking all the evidence and submissions into account, we find that, viewed objectively, Mrs French could not safely work a full shift, either with or without the Respondent accommodating her physical restrictions.157 Clearly, by arranging for other employees to assist Mrs French with those duties she was physically unable to perform, the risk to Mrs French's safety would have been significantly reduced. However, consistent with the medical evidence, we find there would still have been some risk to her safety.
158 We find that in order to rely on the defence provided for in s 54 of the Act, the Respondent was not under a positive duty to alter the required duties of a bar attendant, working a full shift, so as to ensure that Mrs French did not engage in any heavy lifting, lifting loads from below thigh height, or frequent bending (as required by duties 1 – 4 in para 145 above). This conclusion is consistent with the views expressed by Abadee J in David Jones (Australia) Pty Ltd and the Court of Appeal in Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252 at 268 – 269.
159 Consistent with McHugh J's observations in Waters, we are mindful of the need to adopt a restricted approach when determining whether the Respondent can successfully rely on the exemption provided for in s 54(1). Nonetheless, weighing up all the competing considerations, we find that the Respondent's conduct falls within the exemption.
160 Accordingly, we propose to dismiss the complaint.
ORDERS
161 The complaint is dismissed.Decision revised 11 June 2002: From paragraph 154 onwards.
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