Fuad v Telstra Corporation

[2009] NSWADT 251

CITATION:	Fuad v Telstra Corporation [2009] NSWADT 251
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Paul Fuad RESPONDENT Telstra Corporation Limited
FILE NUMBER:	081098
HEARING DATES:	22, 23, 24 April 2009
SUBMISSIONS CLOSED:	24 April 2009
DATE OF DECISION:	29 September 2009
BEFORE:	Britton A - Deputy President; Hiffernan N - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member
CATCHWORDS:	Complaint of disability discrimination – employment
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth)
CASES CITED:	Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Purvis v New South Wales (2003) 217 CLR 92 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1.The complaint of discrimination on the ground of disability is dismissed.

REASONS FOR DECISION

1 Mr Paul Fuad claims he has been subjected to unlawful discrimination on the ground of disability by his employer, Telstra Corporation. The gravamen of his complaint is Telstra’s decision to remove him from a position he had been performing despite having restricted use of an elbow and to direct him to perform duties he was unfit to perform. As a consequence of this decision Mr Fuad claims he had no option but not to report to work and take up his personal leave entitlements. This, he contends, was part of Telstra’s strategy to ‘shake him up a bit’ and force him to take a redundancy.

2 Telstra denies that Mr Fuad had been discriminated against on the ground of his elbow condition, which it concedes constitutes a disability for the purpose of the Anti-Discrimination Act 1977. It contends that the decision about which Mr Fuad complains was related to an operational restructure within Telstra.

3 Mr Fuad lodged a complaint with the Anti-Discrimination Board in April 2008. His complaint spans the period, 17 September 2007 to 14 April 2008.

Background

4 Mr Fuad commenced work with Telstra in 1982. In 2001 he was transferred to a position as a communications technician (CT). The work performed by CTs fell into two main categories — ‘Fit and Fix’ (F&F) work — installation and maintenance of Telstra’s network and ‘Construction and Maintenance’ (C&M) work — construction and repair of the network.

5 In 1994 Mr Fuad injured his right elbow. A decade later that injury was aggravated and surgery required. Before this surgery Mr Fuad held the position of CT and was a member of an F&F team.

6 Mr Fuad returned to light duties after surgery. In August 2005 he commenced ‘customer access network interception targeting’ (CANIT) work. This work involved the repair of faulty cable joints.

7 In November 2005 Mr Fuad’s treating doctor issued a final WorkCover certificate, certifying him fit to lift up to 10 kilograms with ‘limited use of right arm’. Around this time he was referred for assessment by Telstra’s insurer, Allianz Australia, to Dr Anthony Smith. In a report dated 23 November 2005, Dr Smith stated that Mr Fuad was fit for full-time employment providing he was not given heavy repetitive work using his elbow.

8 In mid-December 2005 a return to work plan was finalised. The Plan identified the following suitable duties:

…Independent jointing duties, to use left upper limb to open pit lids, continue to use both upper limbs for jointing work, taking regular postural breaks to avoid repetitive activity.
Duties include walking, squatting, sitting, driving, bi-lateral upper limb use.

9 The Plan imposed the following restrictions on the type of work Mr Fuad could undertake:

To avoid repetitive right upper limb work, lifting greater than 10 kg with right limb

10 The Plan contained a pro forma note in the following terms:

Important Notice to Workers
The suitable duties described in this Return to Work Plan are provided on a temporary basis for the purpose of your rehabilitation. These duties do not represent a permanent change in the terms and conditions of your employment . [Emphasis added]
…

11 Throughout the period Mr Fuad performed CANIT, August 2005 to September 2007, there was no suggestion that he was unfit for that work. Nor was there any issue about the quality of his work.

12 While common ground that throughout this period Mr Fuad only performed CANIT work Telstra contends that Mr Fuad’s substantive position remained that of a CT. Mr Fuad disagrees and contends that he had been told that his placement on the CANIT team was a permanent arrangement. In support, he points to the Return to Work Plan, dated 9 September 2005. Under the heading ‘General Comments’ was written:

WSA [Work Solutions Australia, the rehabilitation provider] to contact [Mr Fuad’s treating doctors] regarding prognosis to return to Full CT pre-injury duties.
WSA to contact Level 5 Manager to discuss permanent jointing duties [emphasis added]

13 Mr Fuad denied that he had been provided with a copy of the Work Solutions Australia report, dated 14 December 2005, which identified the goal of Mr Fuad’s rehabilitation as:

Same workplace/same job — to return to pre-injury duties as a Communication technician.

14 Telstra restructure In September 2007, Telstra restructured its Sydney operations. Before the restructure the Sydney region had been divided into three regions — West, North and South. Under the restructure the West region was dissolved and divided between the North and South regions. CTs such as Mr Fuad, who had previously been based in the West, were transferred to a team in one of the two remaining regions.

15 In addition, under the restructure Telstra decided that C&M teams would undertake all future CANIT work. Technicians like Mr Fuad who before the restructure had been allocated CANIT work were allocated to an F&F or a C&M team, depending on their particular skill set.

16 Under the restructure Mr Fuad was allocated to an F&F team in the South region. His ‘start point’ was changed from Bankstown to Lidcombe.

17 The restructure was designed and overseen by then Business Manager, Mr Gary Evans. According to Mr Evans, he placed Mr Fuad in an F&F team because in his opinion his skills were more closely aligned to F&F work. He claims that on the information he had been provided Mr Fuad did not have main cable jointing skills which he understood to be critical to C&M work.

18 Before the restructure was finalised, Mr Evans provided relevant managers with details of their proposed teams and invited them to raise any concerns they might have had about individual employees, including those relating to any medical restrictions. On his account, no one commented on Mr Fuad’s proposed allocation.

19 Post restructure On or about 18 September 2007, Mr Fuad was advised that he would no longer be given CANIT work and had been placed in an F&F team.

20 According to then manager, Mr Jim Stojanovski, when advised of this decision Mr Fuad told him that he could not do F&F work because of an elbow injury. Mr Stojanovski urged him to give it ‘a try’ and assured him that if he needed assistance it would be provided. According to Mr Stojanovski, Mr Fuad requested that he be returned to CANIT work and also enquired if he could ‘book off on sick leave’ if this was not possible. Mr Stojanovski relayed that conversation to his manager, Mr Stuart Rapp.

21 Mr Rapp claims that he had no knowledge of Mr Fuad’s injury until advised by Mr Stojanovski. As a temporary measure, he decided to allocate Mr Fuad CANIT work while he made enquiries about the nature of his condition. Mr Rapp was unable to locate Fuad’s personnel file. While a search for the file was undertaken, Mr Rapp sought advice from Allianz. He was provided with the following extract from a report prepared by Mr Fuad’s treating surgeon, dated 21 March 2007:

The only limitations are not going up and down ladders on a regular basis and getting on and off roofs. He is perfectly capable of working as a linesman (with these restrictions) and can drive.

22 On the basis of that information, Mr Rapp told Mr Fuad’s managers to direct him to commence F&F duties and inform him that he would be provided with assistance if required to climb a ladder or lift in excess of his weight restrictions.

23 When informed of that decision, Mr Fuad believed he had no option but not to report to work. He took a combination of sick and annual leave until 23 October 2007.

24 During the latter part of September and October, Mr Rapp obtained further information about Mr Fuad’s condition. In his opinion it confirmed the advice given by the insurer that Mr Fuad was fit to perform F&F work if provided with assistance.

25 On 25 October 2007, team leader Mr Joe Izzard and manager Mr Peter White met with Mr Fuad and, as instructed by Mr Rapp, told him that CANIT work was no longer available as a discrete area of work and that he would be provided with assistance to perform any F&F duties outside his medical restrictions. While there is some conflict about what was said at this meeting, it is common ground that Mr Fuad stated he was unfit for F&F work and went on sick leave.

26 Assessment of Mr Fuad’s fitness for employment Following that meeting, Mr Fuad consulted his GP. In a report dated 26 October 2007, the GP stated that Mr Fuad should not perform the following duties ‘as a result of his work place injury’:

1. Crawling under houses or in ceiling cavities.

2. Carrying a ladder

3. Work which involves stress to the right elbow eg drilling.

27 When provided with this advice Mr Rapp reviewed his earlier decision and decided Mr Fuad was unable to perform any field work. In his opinion, the recent certificate precluded Mr Fuad from undertaking CANIT work as it was his understanding that this type of work involved stress to the elbows. Mr Fuad disagreed with that opinion. He contended that it was a two-person job and the work could be arranged in such a way as to avoid placing stress to the right elbow. He pointed out that he had performed CANIT work for over two years without incident.

28 Mr Rapp claims he made enquiries about whether other positions were available to accommodate Mr Fuad’s medical restrictions but found none. He said allocating CANIT work to Mr Fuad was not an option because it was now part of the broader C&M program and no longer a discrete area of work. In his opinion, Mr Fuad did not have the necessary technical skills or functional capacity to perform C&M work.

29 Following receipt of the 26 October 2007 certificate, Telstra decided to obtain an independent medical assessment. Mr Fuad was referred to Dr David Allen for assessment. In a report dated 11 February 2008, Dr Allen stated that Mr Fuad was not fit to return to the duties of a CT, which he understood to involve ‘climbing ladders and carrying’. He nominated a number of additional restrictions Mr Fuad should be subjected to — no firm gripping, pushing, pulling or lifting more than five kilograms with the right hand. In his view Mr Fuad’s condition was likely to worsen slowly over time.

30 On the basis of that report, Telstra HR advisor, Ms Kate Phillips, formed the view that Mr Fuad was unable to undertake the inherent requirements of an F&F CT and decided that Telstra’s medical retirement procedure should be commenced.

31 Mr Fuad was informed of that decision at a meeting on 14 March 2008. His union representatives urged Telstra to reconsider and provide a modified field position to accommodate Mr Fuad’s disability. Telstra refused. Mr Fuad was advised to seek out alternative employment opportunities within Telstra if he wanted to avoid medical retirement.

32 Following this meeting Mr Fuad continued to press for CANIT work. He provided a further medical certificate dated 8 March 2008, which was in the same terms as the 26 October 2007 certificate, save for an express statement that he was able to perform CANIT work.

33 On 28 April 2008, Mr Fuad secured an alternative position within Telstra where he remains today. Mr Fuad claims that he was provided with little assistance in finding this position. This is denied.

34 Section 49D(2) of the Anti-Discrimination Act 1977 (the Act) makes it unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.

35 It is not in issue that Mr Fuad had a disability for the purpose of s 4(c) of the Act, namely a malfunction of his right elbow.

36 As we understand it, Mr Fuad contends that Telstra unlawfully discriminated against him by:

(1) Not providing him with CANIT work following the restructure;

(2) Failing to provide him with duties within his medical restrictions after the restructure and forcing him to use his personal leave;

(3) Failing to assist him to find alternative employment within Telstra after the medical retirement process had been commenced; and

(4) Changing his ‘start point’ and thereby significantly increasing his travel time to and from work.

37 Mr Fuad’s complaint is cast as an allegation of ‘direct discrimination’: s 49B(1)(a) of the Act. This means for each allegation Mr Fuad must establish, on the balance of probabilities, that:

The offending conduct fell within one or more of the substantive provisions of the Act (s 49D(2)); and

He was treated less favourably than a Telstra employee who did not have his disability and who was in the same circumstances or similar circumstances to him (less favourable treatment); and

One of the reasons for any less favourable treatment was because of his disability.

38 These allegations do not stand and fall together, that is, Mr Fuad may establish some and not others.

Claim 1 Failing to provide CANIT work following the restructure

39 Is s 49D(2) engaged? Telstra contends that this claim is not caught by s 49D(2) specifically that it could not be characterised as ‘limiting Mr Fuad’s access… to any … benefits associated with employment’ (par. (b)) or ‘subjecting him to a detriment’ (par. (d)).

40 It is uncontroversial that Mr Fuad believed that the decision to ‘take him off CANIT work’ subjected him to a loss. However, that is not enough to engage s 49D(2)(d). He must establish that, objectively assessed, he was subject to ‘loss, damage or injury … that was real and not trivial’ (Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]).

41 In our view, it is plain that by removing him from CANIT work Mr Fuad was subjected to a detriment. The decision set in train a sequence of events which meant his future employment within Telstra was uncertain.

42 In our view, the offending conduct is caught by s 49D(2)(d).

43 Permanent position Before examining whether the elements of less favourable treatment and causation are established it is necessary to resolve a preliminary factual dispute – whether Mr Fuad had been guaranteed CANIT duties on a permanent basis.

44 Mr Fuad does not dispute that the goal identified by the 2005 Return to Work Plans was his return to pre-injury duties. He contends, however, that by 2006 his managers were resigned to the fact that consistent with the medical evidence this goal was unattainable. He says it is telling that for the two years before the restructure, while he exclusively performed CANIT work, there was not even a hint that this arrangement might change. Furthermore, he states that Mr Brian Hindmarsh, his team leader up until August 2006, told him he had been permanently allocated CANIT duties.

45 While uncontroversial that by late 2005 the consensus of medical opinion was that Mr Fuad’s elbow condition was likely to be permanent, of itself, this does not establish that Mr Fuad was promised or guaranteed CANIT work on a permanent basis. His managers at the time, Messrs McIntyre and Hindmarsh, deny making any such promise. Mr Fuad’s evidence on this point is general in nature. This, together with the absence of any documentary evidence to support Mr Fuad’s contention, means we could not be satisfied that a ‘guarantee’ as claimed was given to Mr Fuad.

46 Given the lengthy period Mr Fuad had been performing CANIT duties, it is not surprising that he concluded that the arrangement would continue indefinitely. However, this does not establish that his substantive position was no longer that of an F&F CT.

47 Causation Mr Fuad must establish that one of the reasons Telstra refused to allow him to continue to perform CANIT duties was ‘on the ground of’ his disability. It is enough that one of the reasons for the offending treatment, whether or not the dominant or substantial reason, was his disability: s 4A of the Act. In Purvis v New South Wales (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ (at 163) when interpreting a similar provision in the Disability Discrimination Act 1992 (Cth) expressed the test to be applied in this way:

[W]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

48 The evidence reveals that the key decision maker and driver of the 2007 restructure, Mr Evans had been unaware that Mr Fuad had a disability before the details of the restructure were announced. His decision to place Mr Fuad in an F&F Team was based on an assessment of Mr Fuad’s technical skills.

49 While some Telstra managers were or should have been aware that Mr Fuad had some level of functional incapacity, no one raised any such concern before the decision was taken to appoint Mr Fuad to an F&F team. Field Manager, Mr Dave Richards, for example, was aware that Mr Fuad was subject to a weight restriction. He did not pass this information on to Mr Evans apparently because he believed, erroneously as it turned out, that Mr Fuad’s disability could be accommodated within an F&F team.

50 Mr Fuad was but one of a number of employees affected by the decision to abandon CANIT work as a discrete area of work within Telstra.

51 On any view of the evidence, it could not be said that Mr Fuad’s disability played any role in the original decision to place him in an F&F team.

52 Accordingly, it is unnecessary to consider whether less favourable treatment is established and this part of the complaint must therefore be dismissed.

Claim 2: Failing to provide duties within Mr Fuad’s medical restrictions

53 Is s 49D(2) engaged? Mr Fuad claims that following the restructure he was not provided with duties he was fit to perform and, as a consequence, in order to continue to draw an income was forced to draw on his leave entitlements.

54 Telstra argues that this claim is based on the flawed assumption that the Act imposes an obligation on employers to modify the duties allocated to disabled employees. In support of this proposition Telstra cites the following passage from Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57]:

The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances. Whether they ought to do so in some circumstances is a policy issue which it is for the parliament, and not the Tribunal, to determine. Even in those cases when the so-called ‘inherent requirements’ defence in s 49D(4) of the Act is in issue - when an employer may be contemplating refusing to hire or dismissing an employee - the employer is under no obligation to alter the duties of the job in order to cater for an employee with a disability. What s 49D(4) requires an employer to do before failing to hire a person, or dismissing an employee, with a disability who may be unable to perform the job in question because of that disability is to: (1) properly identify the inherent requirements of the job (being the actual requirements as opposed to the imagined or theoretical requirements), (2) determine whether the employee with a disability could perform those inherent requirements of the job with the aid of services or facilities which are not required by people without the employee’s disability, and (3) determine whether it would impose an unjustifiable hardship on the employer to provide the employee with those services or facilities which would enable him or her to perform the job in question.

…
91 In his Points of Defence the Commissioner responded to all of the applicant’s claims concerning failure of accommodation or assistance by stating that:

25…[T]he Applicant proceeds on a misconceived basis that the Act imposes a positive obligation to accommodate him because of his disability. There is no such obligation in the Act and the Respondent says that this aspect of the claim should be dismissed as misconceived.
26 Even if such an obligation to accommodate existed in the Act, the Respondent says that he accommodated the Applicant to ensure that he could remain in employment performing duties which were appropriate having regard to his disability and the operational requirements of the Police Service.
…
92 Both of these statements are correct. Subject to what has been said previously about s 49D(4) (and the equivalent provisions elsewhere in Part 4A of the Act, such as s 49L(4) and (5)), the Anti-Discrimination Act “does not explicitly oblige persons to treat disabled persons differently from others in the community” (Gummow, Hayne and Heydon JJ in Purvis v NSW (2003) 217 CLR 92 at 155). None of the substantive provisions in the Act which are relevant in this case - those in s 49D(2) - imposed obligations on the respondent to “accommodate” the applicant in the ways that he has claimed, or in any other ways. ….

55 Echoing that approach, DP Hennessey in Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47 at [16] said:

Refusal to provide light duties . Except in relation to decisions to hire or fire an employee, nothing in the AD Act requires an employer to alter the duties of a job or to provide “light work” in order to accommodate an employee with a disability. While there are such requirements in section 49 of the Workplace Injury Management and Workers Compensation Act 1998, this Tribunal does not have jurisdiction to determine whether there has been a breach of that provision: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 and, in the federal context, Cosma v Qantas Airways Limited [2002] FCA 640.

56 Telstra points out that the Act does not impose an obligation on employers to provide disabled employees with ‘suitable duties’. While correct, Telstra’s reversal of its earlier decision to provide Mr Fuad with duties within his functional capacity, nonetheless ‘subjected him to a detriment’ and in our view is squarely caught by s 49D(2)(d).

57 Less favourable treatment Mr Fuad must establish he was treated ‘less favourably’ than an employee without his disability in the same or similar circumstances.

58 His claim must be examined over four distinct periods:

59 From 17 September to 26 September 2007 Throughout this period, Mr Fuad continued to be provided with CANIT duties and reported to work. No question of loss arises.

60 From 27 September to 26 October 2007 Throughout this period, Mr Fuad’s managers believed he was fit to perform F&F duties if provided with some assistance. Mr Fuad, correctly as it turned out, believed otherwise and refused to perform those duties.

61 From 27 October 2007 to 11 February 2008 After receiving the 26 October medical certificate, Mr Rapp concluded that Mr Fuad was unable to perform any fieldwork including CANIT duties. Mr Fuad disagreed and continued to press for CANIT work.

62 From 11 February 2008 Telstra’s managers concluded that Dr Allen’s report confirmed Mr Rapp’s view. On the basis of this report, Mr Fuad’s medical retirement was commenced.

63 Less favourable treatment An assessment of whether Mr Fuad was afforded ‘less favourable treatment’ throughout these periods, requires first, the identification of the relevant circumstances surrounding his treatment and, second, a comparison between that treatment and that which was or would probably be afforded to a person in those or similar circumstances, who did not have his disability.

64 The majority in Purvis v New South Wales (at 160, 161) described the approach to be taken, in this way:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. …

65 The ‘objective features’ surrounding Mr Fuad’s treatment differ slightly between the four periods. We deal with each in turn.

66 In respect of the period to 27 October 2007, the ‘objective features’ in our view would include a technician who had refused to perform duties as directed but who was prepared to undertake other duties which in their view they were fit to perform. Mr Fuad’s treatment is to be compared with the treatment, which would probably be afforded to a hypothetical technician without a disability — or without Mr Fuad’s disability — say a back condition — in those circumstances.

67 Mr Evans invited managers to inform him if they believed a member of their team was unfit to perform the proposed duties they had been allocated after the restructure. This indicates that Telstra was prepared to have regard to the functional capacity of individual technicians affected by the restructure. There is no evidence that Telstra was called to or did accommodate any employee. Apart from policy documents, there is no evidence about Telstra’s treatment of its disabled employees.

68 We think it improbable that Telstra’s managers, confronted with the hypothetical technician described above who had refused to perform duties they believed he or she was capable of performing, would have acquiesced and provided them with work the technician nominated as appropriate. Given that finding we could not be satisfied that less favourable treatment is established for the period to 27 October 2007.

69 In respect of the third and fourth periods, Mr Fuad’s treatment must again be compared with a hypothetical technician in similar circumstances to his, namely — a technician whom management believed was unfit to perform either their ‘substantive position’ or the alternative duties nominated by the technician. We think it improbable that Mr Fuad’s treatment would have been ‘less favourable’ to that afforded to this hypothetical employee.

70 For these reasons we could not be satisfied that less favourable treatment is established for the period from 27 October 2007.

71 Given these findings it is unnecessary to proceed and decide whether causation is established. This part of the complaint must also be dismissed.

Claim 3: Failure to provide Mr Fuad assistance to find alternative employment after the medical retirement process was commenced

72 At the 14 March 2008 meeting Mr Fuad was notified that unless he could find alternative employment within Telstra he would be medically retired. Six weeks later he commenced in the role of a New Generation Network technician with pay and conditions commensurate with those he had received before the restructure.

73 Mr Fuad contends that once the medical retirement process was triggered he was not, as promised, assisted to obtain alternative employment. He says that for about five weeks he was unable to access the Telstra intranet to view advertised positions. He claims that his numerous calls to Messrs Rapp, Izzard and Ms Phillips were not returned and eventually he was forced to approach Ms Debbie Nankivell, Mr Rapp’s manager, to seek assistance.

74 Telstra refutes these claims. While Telstra concedes that Mr Fuad may for a period have had difficulties accessing the intranet it pointed to the evidence given by Mr Rapp and Ms Phillips outlining the steps taken to assist Mr Fuad after the 14 March 2008 meeting.

75 Even if Mr Fuad is correct and the level of assistance provided to him was wanting, it does not follow that this constitutes unlawful discrimination. There is no evidence about the level of support provided to Telstra employees after the medical retirement process is activated. Accordingly, there is no basis by which a comparison can be made between Mr Fuad’s treatment and that which was or would be afforded to an employee without his disability. Furthermore, the evidence would not support a finding that Telstra managers provided the level of assistance they did because of Mr Fuad’s disability.

76 Therefore, this part of the complaint must be dismissed.

Claim 4: Increased travelling time

77 As a result of the restructure, Mr Fuad’s start point was changed and as a consequence, his travel time to and from work increased.

78 The evidence reveals that employees like Mr Fuad, who had been part of the West Sydney region before the restructure, were allocated new regions and ‘start points’. For some this meant that travel time decreased. For others, such as Mr Fuad, it meant an increase. Mr Evans agreed that Mr Fuad’s new travel time of 42 kilometres each way was at the ‘high side’ of average as compared with other technicians.

79 We accept that the increased travel time constitutes a detriment for the purpose of s 49D(2) (d) but are not satisfied that unlawful discrimination is established. There is no evidence that one of the reasons Mr Fuad was allocated a new start point was because of his disability. Nor does the evidence support a finding that an employee in similar circumstances but without his disability would have been treated more favourably.

80 Accordingly, this part of the complaint must be dismissed.

Orders

1. The complaint of discrimination on the ground of disability is dismissed.