Gardiner v WorkCover Authority of New South Wales (EOD)

[2004] NSWADTAP 1

Appeal Panel - Internal

CITATION:	Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1
PARTIES:	APPELLANT Anne Gardiner RESPONDENT WorkCover Authority of New South Wales
FILE NUMBER:	039063
HEARING DATES:	17/11/2003
SUBMISSIONS CLOSED:	11/17/2003
DATE OF DECISION:	02/04/2004
DECISION UNDER APPEAL:	Gardiner v WorkCover Authority of New South Wales [2003] NSWADT 184
BEFORE:	Chesterman M - ADCJ (Deputy President); Britton A - Judicial Member; Weule B - Member
CATCHWORDS:	application of common law test - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	021126
DATE OF DECISION UNDER APPEAL:	08/11/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Cunliffe v Commonwealth (1994) 182 CLR 272 Gardiner v WorkCover Authority of New South Wales [2003] NSWADT 184 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales v Amery [2003] NSWADTAP 16 Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408; (1988) EOC 92-239 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPELLANT K Eastman, barrister RESPONDENT K Nomchong, barrister
ORDERS:	1 The appeal is dismissed; 2 Each party has 21 days from the date of this decision to make an application for costs

1 This is an appeal against a decision of the Tribunal, constituted by Magistrate N Hennessy, Deputy President, M Alt, Member, and A Pun, Member, in Gardiner v WorkCover Authority of New South Wales [2003] NSWADT 184. The Tribunal dismissed a claim by the Appellant, Ms A Gardiner, that the Respondent, the WorkCover Authority of New South Wales, had breached the provisions of the Anti-Discrimination Act 1977 (‘the Act’) dealing with discrimination on the separate grounds of sex and of carer’s responsibilities.

2 For the purposes of this judgment, it is sufficient to set out the facts in summary form only.

3 The Appellant is the mother and carer of two young children, who were born on 2 February 1995 and 16 January 1997. She lives in Sydney. Since 1992, she has been employed by the Respondent. In February 1999, the Premier announced that the head office of the Respondent, at which she was stationed, would be relocated in Gosford.

4 In September 1999, the Appellant applied for a permanent position as a Team Manager. (We note here that an alternative term for ‘Team Manager’ used in the judgment and in the written submissions of the parties was ‘Team Leader’.) At the time of applying, she was aware of the possibility that this position would be moved to Gosford. She was offered, and accepted, a position as Team Manager of an industry-based team without relocation being mentioned. She was given overall supervisory responsibility for 32 staff members, of whom four were located in Gosford, twelve in Liverpool, six in Lindfield and eight in the Central Business District. These included two line managers, who were responsible for the day-to-day supervision of staff.

5 The Appellant was told in June 2001 that her position would in fact be moved. Because she hoped to persuade management to let her stay in Sydney, she did not take up offers made by management to all those who were to be relocated. These included special assistance in relocating their residence to an area near Gosford or in obtaining other employment in the public or private sector.

6 The Respondent made it clear to the Appellant in a series of meetings during 2002 that while her needs as a carer of young children would be accommodated as far as possible, there would be no change to the decision to move her position to Gosford. The stated reason for the Respondent’s insistence on this was that, on account of the seniority of the position of Team Manager, it was important for the Appellant to retain regular contact, both formal and informal, with other members of senior management (including other Team Managers). All these employees of the Respondent, except for the Managers of two geographically based Teams, were or would be located at Gosford. Contrary to an assertion by the Appellant, the Respondent claimed that it was unnecessary for her to maintain face-to-face supervision of the members of her team (the majority of whom were located in Sydney, Lindfield or Liverpool), because this was the task of the two line managers within the team.

7 As a result of the meetings during 2002, the Respondent took some steps to accommodate the Appellant’s responsibilities as a carer. In particular, she was given permission to start ‘core time’ (the Respondent operated a system of flexi-time) at a later hour than other staff, in order that she might prepare her children for school before leaving Sydney to travel to Gosford. But in October 2002 those Team Managers, including the Appellant, who had been moved to Gosford were directed that they must work there on five nominated days per fortnight.

8 The Appellant was the only Team Manager with responsibilities for the care of young children. She stated that, on the days when she went to Gosford, (a) she could not prepare her children for school, (b) she could only see her children in the morning or the evening, but not both, and (c) she had to spend extra hours travelling to and from work, which were not remunerated. In May 2003, the Appellant spent an average of only one day per week in Gosford.

Relevant provisions of the Act

9 The Appellant claimed that the conduct of the Respondent amounted to unlawful discrimination on the ground of carer’s responsibilities, under s 49V(2) of the Act, and on the ground of sex, under s 25(2).

10 Section 49V(2) is as follows:-

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:

(a) in the terms or conditions of employment that 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.

11 In s 49S(1)(a), ‘responsibilities as a carer’ are defined.

12 Section 25(2) is as follows:

(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms or conditions of employment which the employer affords the employee,

(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 subjecting the employee to any other detriment.

13 The particular form of discrimination alleged by the Appellant was so-called ‘indirect discrimination’. For the purposes of this case, the material provisions bearing upon indirect discrimination are s 24(1)(b) of the Act, in relation to sex discrimination, and s 49T(1)(b), in relation to discrimination on the ground of carer’s responsibilities.

14 The terms of s 49T(1)(b) are as follows:-

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:…

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case . . .

15 Section 24(1)(b) is in similar terms.

Rulings not challenged on appeal

16 A number of rulings of the Tribunal, favourable to the Appellant, were not challenged in the appeal.

17 These rulings were as follows: (a) that the Appellant did have ‘responsibilities as a carer’ for her two children; (b) that the requirement that she perform employment duties at Gosford was both a ‘term or condition’ of her employment and a ‘detriment’ within the meaning of s 49V(2)(a) and (d) and s 25(2) (a) and (c) of the Act; (c) that the direction to Team Managers, including the Appellant, to work at Gosford on five days in every fortnight was a ‘requirement’ within the meaning of s 49T(1)(b) and s 24(1)(b); and (d) that the Appellant was unable to comply with this requirement.

18 It was common ground throughout that this ‘requirement’ was one with which both ‘a substantially higher proportion of persons who did not have responsibilities as a carer’ (see s 49T(1)(b)) and ‘a substantially higher proportion of men’ (see s 24(1)(b)) were ‘able to comply’.

Grounds of the appeal

19 The ground on which the Tribunal dismissed the Appellant’s claim was that she had failed to show that, as stipulated in the closing words of s 49T(1)(b) and s 24(1)(b), the ‘requirement’ imposed on her by the Respondent to work at Gosford on five days per fortnight was ‘not reasonable having regard to the circumstances of the case’.

20 It was common ground, both at first instance and in the appeal, that the onus lay on the Appellant to establish this element of her case.

21 In her written and oral submissions in the appeal, Ms Eastman, counsel for the Appellant, argued that the Tribunal erred in law in reaching its conclusion on this matter. She also sought leave under s 113(2) of the Administrative Decisions Tribunal Act 1997 for the appeal to extend to a review of the merits.

22 As we understood the full range of Ms Eastman’s arguments, she alleged errors by the Tribunal in three respects. First, the Tribunal’s formulation of the test to be applied in determining whether the requirement was or was not reasonable was incorrect. Secondly, the Tribunal failed to take any or sufficient account of all the considerations that were relevant to the determination of reasonableness. Thirdly, it took into account a consideration that it should have treated as irrelevant.

23 Ms Nomchong, counsel for the Respondent, submitted that none of these claims was made out, that accordingly no error of law had been demonstrated and that for this reason the appeal must be dismissed. Implicitly, she based this last submission on the proposition that where no error of law is demonstrated leave may not be given under s 113(2) to extend an appeal to a review of the merits.

The Tribunal’s reasons for its decision on the issue of ‘reasonableness’

24 The Tribunal’s discussion of the issue of reasonableness commenced, at para [63] of its judgment, with a reference to two authorities which it described as ‘helpful’. These were Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408; (1988) EOC 92-239 and Waters & Ors v Public Transport Corporation (1991) 173 CLR 349.

25 The Tribunal then cited, at [63], the following passage in the judgment of Wilcox J in Styles ((1988) 84 ALR 408 at 429; (1988) EOC 92-239 at 77,240):

A requirement or condition is not to be regarded as “reasonable” merely because it is convenient . . . On the other hand, it seems to me to go too far to say that a requirement or condition is reasonable only where it is shown to be necessary or essential for the proper conduct of the respondent’s business or affairs. . . It appears to me that the proper course . . . is to ascertain the reasons underlying a respondent’s insistence upon the relevant requirement or condition and to ask whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified.

26 It then cited, at [64], the following passage in the judgment of Brennan J in Waters, at 378:

[‘Reasonableness’] must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity .... There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ... ; secondly, whether the activity could be performed .... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity ... and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

27 The Tribunal then set out, at [65], its own formulation of the test to be applied, as follows:-

65 The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against:
The reasons for the requirement including any commercial considerations;

Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and

Whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory.

28 At [66], the Tribunal indicated that, as already mentioned, there was no dispute that the Applicant (i.e., the Appellant in these proceedings) bore the onus of proving the requirement to have been not reasonable. It added that the Appellant had listed ‘thirteen considerations relevant to the reasonableness of the requirement’.

29 At [67 – 70], the Tribunal explained why in its view the Appellant had failed to show that the requirement was not reasonable. It is useful to set out here this whole passage of the judgment:-

67 Extent of discriminatory effect . The extent of the discriminatory effect on Ms Gardiner is that she will probably not be able to see her children in the mornings and the evenings on the days she travels to Gosford and she will have less time overall with her children because of the extra travelling time. On the basis of working five days per fortnight in Gosford, this would amount to at least 10 hours less per fortnight when the travelling time from Maroubra to the City is deducted. Ms Gardiner did not say that there would be no-one available to care for the children during the time that she was absent, or that she would have to employ someone to do so.

68 Reasons for the requirement. The reasons for the requirement are set out in the Summary of Issues document and in Mr Watson’s oral and written evidence. We accept Mr Watson’s evidence that there were genuine management reasons for relocating Ms Gardiner. Ms Gardiner did not agree with all of those reasons, but that does not make the requirement unreasonable. Based on all the evidence, it is more efficient and effective, from a management point of view, for Ms Gardiner to be based in Gosford. The requirement, which ensures that all industry team managers are based in Gosford and regularly attend at that site, is logical and understandable from a management point of view.

69 Accommodation of needs and less discriminatory option. The respondent made considerable efforts to accommodate Ms Gardiner’s carer’s responsibilities. Ms Gardiner had the option of seeking assistance from WorkCover to find another position either in the public or the private sector if she was unable to re-locate. She was also on notice from February 1999 that it was likely that her position would be re-located. The fact that the advertisement for her position was headed “WORKCOVER IS SCHEDULED TO RELOCATE TO GOSFORD BY 2002” is strong evidence that she knew that it was likely that her position would be moving. It also suggests that in applying for the position she was prepared for a future move to Gosford.

70 A less discriminatory option, according to the applicant, would be for Ms Gardiner to have an office in Sydney and go to Gosford whenever there was a scheduled meeting which she needed to attend. According to the applicant, that would not involve the respondent in any undue expense. While this is a less discriminatory option, it does not achieve the same purpose as being based in Gosford. The opportunity for Ms Gardiner to meet and interact with her staff, colleagues and supervisors at Gosford on a regular and predictable basis is a legitimate management requirement. As we have found, it would result in the more efficient and effective management of WorkCover’s operations than if Ms Gardiner only attended Gosford for scheduled meetings. Balancing the impact that being based in Gosford has on Ms Gardiner’s responsibilities as a carer, we consider that, in all the circumstances, the requirement is reasonable.

30 Ms Eastman made a number of criticisms of the Tribunal’s formulation, in its judgment at [65], of the test of ‘reasonableness’. Her criticisms took account of the fact that the authorities on this issue, including but not limited to the two cases cited by the Tribunal, set out a number of different approaches. She argued that the Tribunal erred in not selecting and applying any one of these approaches. Instead, it chose to formulate its own test.

31 Ms Eastman argued also that the Tribunal’s use of the word ‘balance’ was incorrect. It led the Tribunal into ‘balancing’ a limited number of matters, whereas its approach should have been to ‘weigh’ all the relevant considerations.

32 In support of this argument, she cited a passage in the judgment of Davies J in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 88. In this passage, Davies J commented on a formulation of the test to be applied that was put forward by Bowen CJ and Gummow J in the Full Court of the Federal Court’s decision in Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251 at 263. This was an appeal from the decision of Wilcox J referred to above. Ms Eastman noted that the Tribunal in the present case did not refer to the Full Court’s judgments.

33 The passage in Davies J’s judgment on which Ms Eastman relied is as follows:-

… the Commission referred to "the Styles balancing test". In my opinion, the reference to a "balancing test", of the discriminatory effect on the one hand and the other factors on the other, introduced a concept akin to that which was specifically rejected in Waters and is the crux of the error in the Tribunal's approach.

In Styles, Bowen CJ and Gummow J said at 263:

"The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."
This dictum can be misunderstood if the words in the final sentence are not given their full weight, as I am sure their Honours intended, and as the judgments in Waters require.

If the matter were looked at by way of balancing discrimination on the one hand against the other factors on the other, as I think the Commission looked at the matter, then the issue would become whether the discrimination was reasonable, or, to put it another way, whether the other matters were sufficient to excuse the discrimination. That is not the test and it is not what Bowen CJ and Gummow J had in mind.

34 The principal contention of Ms Nomchong in response to these arguments was that the alleged distinction between ‘balancing’ and ‘weighing’ was no more than a ‘semantic quibble’. She pointed out that in Waters, a number of the Justices of the High Court, including Brennan J (see (1991) 173 CLR 349 at 378-379) in a passage close to that quoted at [26] above, used the term ‘balance’ in the present context or as a synonym for ‘weigh’. In her submission, Davies J, in the passage on which Ms Eastman relied, was doing no more than to state that all relevant matters should be ‘balanced’ or ‘weighed’. The correctness of the Tribunal’s decision on this issue depended therefore on whether the considerations that it treated as relevant were indeed the appropriate ones, not on whether it chose to use the word ‘balance’ rather than ‘weigh’. Ms Nomchong added that, in so far as the Tribunal cited the judgment of Wilcox J in Styles instead of the Full Court judgments, this may have been because the Appellant’s submissions at the Tribunal hearing referred only to the judgment of Wilcox J.

35 In general, we agree with these submissions of Ms Nomchong. We would add the following five observations.

36 First, our own assessment of the Tribunal’s formulation of the test to be applied is that it sufficiently sets out in summary form the important considerations that should be taken into account in determining ‘reasonableness’. The first two matters that it mentions – the nature and extent of the discriminatory effect of the requirement and the reason for the requirement including any commercial considerations – were identified as relevant in Wilcox J’s judgment in Styles. The third and last matters – whether the requirement is appropriate and adapted and whether there is a less discriminatory option – formed part of Brennan J’s exposition in Waters.

37 Secondly, in opposition to an argument on this matter put by Ms Eastman, we consider it to have been appropriate for the Tribunal to adopt a formulation which brought together different elements of the statements of principle to be found in the leading authorities, as opposed to selecting and applying one version only of the test to be applied. This is because the differences between these statements of principle are matters of emphasis only. This can readily be seen by considering the relevant passages in all the High Court judgments – i.e., not just that of Brennan J – in Waters (see in particular Dawson and Toohey JJ, (1991) 173 CLR 349 at 394-396; McHugh J, ibid at 410-411).

38 Thirdly, our response to Ms Eastman’s argument that the Tribunal’s formulation is defective because it failed to indicate that all relevant considerations must be taken into account is that this is not of itself significant so long the Tribunal’s judgment, in its discussion of the facts of the case, did in fact address all such considerations. We will examine this issue in the next section of this judgment.

39 Fourthly, while the Tribunal’s formulation might convey unnecessary implications by referring to a ‘balancing’ of competing sets of considerations, the statement of principle quoted above from the judgment of Bowen CJ and Gummow J in the Full Court of the Federal Court in Styles is enough of itself to provide some authority – despite the contrary dicta of Davies J in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission – for stating the test in this way. We would add here that while the Tribunal itself did not refer to the Full Court judgments in Styles, its formulation was in fact taken (as Ms Eastman noted in her address in reply) from the written submissions put to it at first instance by the Respondent. One of the authorities cited in support of that part of the Respondent’s submissions was the Full Court’s decision in Styles.

40 Fifth and finally, we would in any event be reluctant to treat the quoted passage from Davies J’s judgment in the Commonwealth Bank case as an authoritative statement of principle, by which formulations such as that put forward by the Tribunal should be judged. An important reason for this is that the phrase ‘other factors’ as used by Davies J, is noticeably vague. If a body such as the Tribunal, purporting to apply what Davies J called the ‘Styles balancing test’, in fact ‘balanced’ or ‘weighed’ the ‘nature and extent of the discriminatory effect’ against – under the heading of ‘other factors’ – all of the other matters that could properly be regarded as relevant, it would, in our view, be quite wrong to treat its conclusion as incorrect solely on the basis of Davies J’s observations.

41 For these reasons, we reject the Appellant’s argument that the Tribunal erred in law by misstating the test to be applied in determining whether or not the requirement to work in Gosford imposed by the Respondent on the Appellant was ‘reasonable’.

The Tribunal’s alleged failure to take any or sufficient account of each of the relevant considerations

42 For the Appellant, Ms Eastman argued that the Tribunal in its judgment failed to take proper account of all the relevant considerations. Citing the Appeal Panel’s judgment in State of New South Wales v Amery [2003] NSWADTAP 16 at [46] (a case also dealing with ‘reasonableness’ under s 24(1)(b) of the Act), she submitted, and we accept, that such a failure by the Tribunal would be an error of law.

43 In elaborating this line of argument, Ms Eastman identified three matters in relation to which, in her submission, the Tribunal’s judgment was defective. These concerned (a) the phrase ‘appropriate and adapted’; (b) the emphasis accorded to ‘efficiency and effectiveness’; and (c) the range of considerations taken into account. We will consider these three matters in turn.

44 ‘Appropriate and adapted’. On this issue, Ms Eastman argued that the Tribunal failed to assess whether the requirement that the Appellant should discharge a significant proportion of her duties at Gosford was ‘appropriate and adapted’ to the performance of the activity in question. The Tribunal failed in this regard, she maintained, even though the phrase ‘appropriate and adapted’ was used by Brennan J in a passage of his judgment in Waters that the Tribunal quoted, and formed part of the Tribunal’s own formulation of the test to be applied.

45 Ms Eastman referred to passages defining this phrase in recent constitutional cases decided by the High Court, notably Cunliffe v Commonwealth (1994) 182 CLR 272 at 300, 324 and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567. In these passages, she argued, the Court emphasised that the question was one of ‘proportionality’ – that is, whether, in the present context, the requirement imposed by the Respondent was ‘proportional’, or ‘not disproportionate’, to the activities that had to be performed.

46 Ms Eastman’s contention was that, instead of considering an issue defined in this way, the Tribunal simply asked whether the requirement imposed on the Appellant was conducive to the efficient and effective management of the Respondent’s operations.

47 In conformity, however, with submissions advanced by Ms Nomchong, we do not consider that this constitutes a fair description of the Tribunal’s approach in the relevant passages of its judgment. The key paragraphs, [67] to [70], are reproduced at paragraph [29] of this judgment. In [68] and in parts of [70], the Tribunal does take explicit account of considerations of efficiency and effectiveness. But the discriminatory effects of the requirement on the Appellant constitute the subject matter of [67]. They also received some attention earlier in the judgment (see in particular [33]). Most significantly, in the concluding sentence of [70], and indeed of the discussion of ‘reasonableness’, the impact of the requirement on the Appellant’s responsibilities as a carer is expressly ‘balanced’ against the gains in efficiency and effectiveness that imposition of the requirement conferred upon the Respondent.

48 For these reasons, we take the view that the Tribunal’s conclusion, at the end of paragraph [70], that the requirement is ‘reasonable’ necessarily implies that it found no disproportion between imposition of the requirement, with its consequent adverse effects on the Appellant, and the efficient and effective performance of the activity in which she was engaged. Without actually using the phrase ‘appropriate and adapted’, the Tribunal made a judgment about the Respondent’s imposition of the requirement in accordance with this criterion.

49 The emphasis accorded to ‘efficiency and effectiveness’. Ms Eastman’s argument under this heading was similar to the argument that we have just outlined. In her written submission, she claimed that the Tribunal treated considerations of efficiency and effectiveness as ‘determinative of the issue of reasonableness’ and that its approach ‘placed improper and undue weight on these matters to the exclusion of the considerations identified by the Appellant’. In oral argument, she referred to a dictum of Wilcox J in Styles (see (1988) 84 ALR 408 at 431; (1988) EOC 92-239 at 77,242) to the effect that ‘tidiness of administration’ was not a sufficient basis for establishing ‘reasonableness’.

50 Our response, again, is that this does not fairly represent the approach taken by the Tribunal. The authorities make it clear – see for example the passage quoted above at [26] from Brennan J’s judgment in Waters ((1991) 173 CLR 349 at 378) – that efficiency, effectiveness and indeed ‘convenience’ in performing the activity in question are relevant considerations. For reasons that we have just outlined, we do not accept Ms Eastman’s contentions that the Tribunal treated such considerations as ‘determinative’ or placed ‘improper and undue weight’ on them to the exclusion of other relevant considerations.

51 The range of considerations taken into account by the Tribunal. In this context, Ms Eastman listed, in her written submissions at first instance and on appeal, thirteen considerations that she claimed to be relevant in determining reasonableness. Her submissions did not assert that these were the only relevant considerations. These thirteen considerations were as follows (numbers have been added for ease of reference):-

i) The nature of the employer

ii) The nature of the operational requirement

iii) The nature of the duties performed by the Team Leaders

iv) The location of where these duties may be performed

v) The location of staff supervised by the Team Managers

vi) The interests of relevant third parties

vii) The organization’s equal opportunity policies and adherence to those policies

viii) The assessment undertaken by the organization to assess the particular circumstances

ix) Whether there are statutory or mandatory requirements to perform the duties at a particular location

x) The rationale for the requirement

xi) The nature and effect of the condition on the applicant

xii) The consideration, assessment and availability of less or non discriminatory methods to achieve the same objective

xiii) The cost or financial impost created by the condition or requirement.

52 Ms Eastman’s contention was that these factors were not all given due consideration by the Tribunal. There was no explicit indication in relation to each of them as to whether the Tribunal believed it to be relevant and, if so, what weight should be attached to it. In so far as the views of the Tribunal on these matters were ascertainable by inference from the text of the judgment, there was, she argued, a failure by the Tribunal to provide adequate reasons for its decision.

53 Ms Nomchong submitted in response that there was no authority setting out a list of factors that the Tribunal was bound to consider in assessing reasonableness. This was instead a matter for the Tribunal to determine, on a case by case basis. She also submitted that, in any event, when paras [67] to [70] of the Tribunal’s judgment were read in conjunction with a number of earlier paragraphs, appearing under the heading ‘Evidence and findings’, it was clear that all or virtually all of the thirteen matters in the Appellant’s list had been taken into account. She referred in addition to authorities for the principle that it is not necessary for a judge exercising a discretionary judgment to ‘detail each factor that he has found to be relevant or irrelevant’ (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA, cited by him in his judgment in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269).

54 We accept these three submissions of Ms Nomchong, and for this reason conclude that this ground of challenge to the Tribunal’s judgment fails. We make the following observations in relation to these submissions.

55 As to the first of them, our opinion is that all of the thirteen matters listed by the Appellant could in fact be deemed relevant factors in the present case. We consider also that the list does not omit any obviously relevant factors. But these conclusions flow from our assessment of the particular circumstances of the case, not from any binding authority requiring that the list of relevant factors be formulated in this way.

56 As regards the second issue raised by Ms Nomchong, we note initially that no single factor or group of factors within the list prepared by Ms Eastman was actually identified by her as having been wholly left out of consideration, or given insufficient consideration, by the Tribunal. We have therefore conducted our own examination of the Tribunal’s judgment in order to ascertain the extent to which it has dealt with each of the thirteen factors.

57 We have found that the Tribunal did not advert, expressly or by implication, to two of the listed factors. These are no. (vii) – ‘the organization’s equal opportunity policies and adherence to those policies’ – and no. (ix) – ‘whether there are statutory or mandatory requirements to perform the duties at a particular location’. But it was not submitted on the Appellant’s behalf that, in the particular circumstances of this case, these particular questions were of material significance, let alone that consideration of them might have made a difference to the outcome. We therefore cannot conclude that the Tribunal’s omission of any reference to them constituted a failure to have regard to a relevant factor and, on that ground, an error of law.

58 The remaining eleven factors were, in our review, sufficiently brought into consideration. This is apparent principally from the four paragraphs of the judgment ([67] to [70]) that have been quoted in these reasons (at [29]). But, as Ms Nomchong submitted, there are also important passages earlier in the Tribunal’s judgment, under the heading ‘Evidence and findings’. We refer particularly to paragraphs [20], [23 – 25], [28], [29] and [33].

59 In our opinion, Ms Nomchong’s third submission, based on the leading authorities defining the scope of the judicial duty to give reasons, sufficiently disposes of Ms Eastman’s argument that the Tribunal failed to identify expressly all the factors that it considered relevant and to state what weight it attached to each of them.

The Tribunal’s alleged error in taking into account a consideration that it should have treated as irrelevant

60 As indicated in this judgment at [22], the third and final ground of appeal put forward by Ms Eastman was that in determining whether or not the requirement imposed by the Respondent on the Appellant was reasonable, the Tribunal erred in law by taking into account a consideration that it should have held to be irrelevant.

61 The consideration in question was, in Ms Eastman’s submission, the reasonableness of the Appellant’s conduct. Ms Eastman argued that in the concluding sentence of paragraph [67] of its judgment the Tribunal implicitly indicated that it believed this to be a relevant factor.

62 The paragraph as a whole is reproduced above at [29]. The concluding sentence is as follows:-

Ms Gardiner did not say that there would be no-one available to care for the children during the time that she was absent, or that she would have to employ someone to do so.

63 The interpretation of this sentence that Ms Eastman urged upon us was that it sought to ‘discount’ the extent of the discriminatory impact that the requirement to work at Gosford had upon the Appellant by implying that the Appellant did not act reasonably in trying to minimise this impact.

64 In our opinion, this sentence does not convey any such implication. All that it does is to draw attention to the absence of any evidence from the Appellant as to whether, on the days when she went to work at Gosford, there was someone else available to care for her children and whether on those days she had to employ someone to care for them. In the course of assessing the extent of the discriminatory effect of the requirement to work at Gosford, it was entirely appropriate for the Tribunal to take account of this aspect of the evidence.

65 For these reasons, we reject this final ground of challenge to the Tribunal’s decision.

Conclusion

66 We have rejected each of the grounds of appeal alleging an error of law by the Tribunal. We reject also the Appellant’s application for leave to extend the appeal to a review of the merits of the Tribunal’s decision. We doubt whether it is permissible for us to grant such leave without having identified an error of law. But if it is permissible, this is not in our opinion an appropriate case in which to grant leave.

67 The appeal must accordingly be dismissed.

68 Both parties requested that they be given an opportunity to apply for costs after this decision was handed down. Each party has 21 days from the date of this decision to make such an application. If either or both of the parties apply for costs, a directions hearing will be held (preferably by phone) to set down a timetable for the filing of submissions and to decide whether the matter can be determined on the papers.