Gibbons v Commonwealth of Australia
[2010] FMCA 115
•24 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIBBONS v COMMONWEALTH OF AUSTRALIA & ORS | [2010] FMCA 115 |
| HUMAN RIGHTS – Disability discrimination – direct and indirect discrimination – elements of direct and indirect discrimination – test for substantially higher proportion of persons without the disability complying or being able to comply with a requirement or condition. |
| Australian Federal Police Act 1979 Disability Discrimination Act 1992 Superannuation Act 1976 Superannuation Act 1990 |
| Fetherston v Peninsula Health [2004] FCA 485 Forest v Queensland Health [2007] FCA 936 Hollingdale v North Coast Areas Health Service [2006] FMCA 5 Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 State of Queensland v Forest [2008] FCAFC 96 Rana v Flinders University of SA (2005) FMCA 1473 |
| Applicant: | PAUL EDWARD GEORGE GIBBONS |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | DYSARAN PTY LIMITED |
| Third Respondent: | MICHAEL JOSEPH KEELTY |
| Fourth Respondent: | ALAN SEAN SCOTT |
| File Number: | BRG 136 of 2008 |
| Judgment of: | Burnett FM |
| Hearing dates: | 29 and 30 April 2009; 1, 5, 6 and 7 May 2009; and 9 June 2009 |
| Date of Last Submission: | 19 June 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 24 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | The applicant appeared on his own behalf |
| Counsel for the First Respondent: | Ms Garner |
| Solicitors for the Second Respondent: | DL Phillips Fox |
| Counsel for the Third Respondent: | Ms Garner |
| Solicitors for the Third Respondent: | DL Phillips Fox |
| Counsel for the Fourth Respondent: | Ms Garner |
| Solicitors for the Fourth Respondent: | DL Phillips Fox |
ORDERS
That the application is dismissed.
That subject to any other application made within seven (7) days of this order, the applicant pay the respondent’s standard costs of and incidental to the application to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 136 of 2008
| PAUL EDWARD GEORGE GIBBONS |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| DYSARAN PTY LIMITED |
Second Respondent
| MICHAEL JOSEPH KEELTY |
Third Respondent
| ALAN SEAN SCOTT |
Fourth Respondent
REASONS FOR JUDGMENT
On 8 October 2005 the applicant, Paul Edward George Gibbons suffered a serious brain trauma injury when he fell from a moving vehicle driven by his then girlfriend. There were many matters in dispute surrounding the precise circumstances leading up to and including that event. However what is not in dispute is that as a consequence of that incident the applicant was subject to a long and painful rehabilitation. Ultimately he was terminated from the Australian Federal Police (AFP) because of unacceptable behaviour. Aspects of his offending behaviour were undoubtedly founded in the consequences of his injuries. The applicant opposed this course as he did not wish to be discharged from the AFP. The AFP in deciding the applicant’s future was guided by the second respondent Dysaran Pty Ltd, a health consultant and the experts they engaged. The AFP acted through its then Commissioner, the third respondent Michael Joseph Kelty and its manager of People Strategies the fourth respondent, Alan Sean Scott. They are each respondents to the application. For convenience I address the respondents collectively as the AFP unless the context requires otherwise.
The applicant believes that the AFP and its delegates, in its treatment of him following his injury, discriminated against him contrary to the provisions of the Disability Discrimination Act 1992 (Cth). He seeks a declaration that the respondents engaged in unlawful conduct to discriminate against him on the grounds of his disability. He seeks reinstatement to the AFP together with redress for loss or damage suffered including compensation, exemplary damages and aggravated damages.
Background facts
The applicant commenced employment with the AFP on Monday 2 August 2004. He had been a lateral transfer to the AFP after having earlier served with both the Royal Australian Navy and the New South Wales Police Force. In 2005 he was transferred by the AFP to Sydney where he was employed in surveillance. At that time he was in a relationship with a woman, Eliza Pollard. In the early hours of Saturday 8 October 2005 he was involved in an incident involving Ms Pollard’s car. As a consequence of that incident the exact particulars of which are in dispute, he suffered a serious head injury involving a fracture to the skull, bilateral and right temple lobe contusions to his brain, multiple petechial haemorrhages, a subarachnoid haemorrhage and a mass effect with midline shift. He also suffered other injuries to his chest and abdominal injuries. He was immediately transported by ambulance to the St George Hospital where he required significant surgery. Follow-up surgery was also undertaken over subsequent days. He suffered post traumatic amnesia.
In the weeks following his injury he experienced:
a)Temporary and partial inability to function independently without supervision;
b)Was left with a significant scar extending from above the right ear across the top of his skull to above the left ear;
c)Cognitive impairment which included:
i)Short term memory loss;
ii)Poor calculation skills;
iii)Decreased ability to plan and organise;
iv)Poor self monitoring;
v)The inability to restrain or control emotions;
vi)The inability to comprehend his deficits.
On 29 November 2005 he was discharged from hospital into the care of Ms Eliza Pollard[1]. At the time of discharge he was noted as having suffered a closed head injury. His relevant medical history was recorded as “depression”. Some functional disability was noted together with cognitive disability. Significantly under the headings of “Behavioural” and “Communication” it was stated he was “easily agitated and occasionally aggressive”.
[1] The applicant complains about this decision and makes serious allegations about her conduct. However those matters are not relevant to this application.
Following discharge the applicant was placed into the care of the AFP’s human resources department. Their object was to assist the applicant with his speedy return to work bearing in mind that the causes of his medical disabilities were not work related. In the context of this application that fact has particular significance. This is so because the applicant was only entitled to the customary sick leave allowances which were quickly exhausted. It was apparent to all who were engaged in the applicant’s rehabilitation that special arrangements were essential to tide the applicant over financially pending his recovery. At that early time it was recommended that the applicant required prompting and supervision with all domestic and instrumental tasks due to cognitive defects; he would require further cognitive assessment; psychology follow-up particularly because of his depressive condition and he would require high balance retraining.
On 23 November 2005 the applicant provided an authority to the AFP. The authority included an acknowledgment by the applicant that “as a consequence of my non-work related injuries and medical advice that suggests a program of rehabilitation may assist my return to, or maintenance of, employment I am required to undergo an assessment by a rehabilitation program provider and depending on the outcome of that assessment undertake a return to work plan (RTWP). I understand that for the return to work plan to be successful that relevant medical and personal information needs to be made available to selected persons in order that discussions may take place to determine my rehabilitation needs and fitness for duty in order to coordinate my RTWP. I, therefore, authorise that the following persons may obtain and/or release information necessary to determine my rehabilitation needs and fitness for duty…”
The applicant says the authority was improperly obtained. However I do not accept that. The request for the authority was consistent with the legislative requirements of the AFP under the Australian Federal Police Act 1979 (Cth) as well as for pre-assessment invalidity assessment in accordance with the Superannuation Act 1976 (Cth) or the Superannuation Act 1990 (Cth). The authority expressly limited the purpose for which the material could be used. This was especially so because the injuries were non-work related. It would have been reasonable to provide such an authority. With hindsight the applicant now has a differing view of the matter. In my view the applicant’s current view is contaminated by his feelings of animus towards the AFP. Given his current lack of objectivity I do not accept the applicant was able to reliably recount events relevant to this issue and in particular the signing of the authority. I note the signature on the authority is similar to that which appears on his affidavit.
The medical material was required by the AFP from the St George Hospital.
On 23 January 2006 Ms Kathleen Ho, the Compensation and Rehabilitation Officer with the AFP directed the applicant to attend Health Services Australia, a rehabilitation service provider, for assessment. The assessment was conducted by Dr John Sowby. He reported by a written report dated 23 January 2006.
Medical assessment by him at that time revealed the physical scarring but otherwise did not record any difficulty. Dr Sowby noted:
“General muscular skeletal examination revealed no obvious wasting deformity. Movements of the neck, back and limbs were all grossly normal. Movements were all performed with normal rhythm, without guarding.”
In respect of his mental state assessment Dr Sowby noted:
“On mental state examination Mr Gibbons presented as a neatly dressed and groomed person of stated age. Behavioural style was friendly, appropriate for the assessment process. His speech was of normal content, speed and logic, with no obvious abnormalities in his thought processes. Effect and mood were normal, with variability appropriate for the circumstances. No obvious perceptual abnormalities were noted, such as hallucinations or delusions. Cognition appeared intact, though on one or two occasions he had difficulties recalling specific dates. Suicidal thoughts were denied. Insight and judgment for day to day safety issues appeared intact. Rapport at this assessment was good.”
However despite these findings Dr Sowby did note there was insufficient information available at the review to complete his fitness for continued duty assessment with regard to ascertaining the severity of his head injury and any possible residual cognitive impairment. He recommended a formal neuropsychological assessment to address those concerns. He stated that pending a clear assessment on those matters the applicant would be fit to return to work. He added that in making that assessment a further three to four months sick leave was justifiable.
Following upon Dr Sowby’s recommendations on 1 March 2006 the applicant was presented to Mr P. Perros, a consultant psychologist/neuropsychologist for assessment.
In a report dated 2 March 2006 Mr Perros concluded:
“At the moment he is functioning below his premorbid levels, and displays a number of cognitive difficulties (summarised on page 4 of this report) that limit his ability to function independently as a police officer for the time being. He would best be placed in routine work with rather lax deadlines and offices where there are minimal distractions. He is going to be “slow on his feet” but might be able to perform routine police work.”
Mr Perros had also noted that from a purely clinical perspective his report ought be regarded as a baseline to gauge improvement in his neuropsychological status over the following 12 to 18 months as he continued to improve. To that end Mr Perros was of the view that Mr Gibbons would improve. It is also worth noting that in his report Mr Perros assessed that at that time there was some mild indication of depression of the applicant.
At about that time the applicant was also presented to Dr K.T. McLaughlin, psychiatrist for an independent psychiatric examination. Dr McLaughlin concluded that the applicant did not satisfy conditions for the diagnosis of any psychiatric condition and that at the time of examination he did not have one. Despite that diagnosis Dr McLaughlin did however note that post injury counselling may be of assistance and support to the applicant particularly while he was undertaking a rehabilitation program to return to work. In respect of specific questions that were asked of Dr McLaughlin he opined that in his view the applicant was then not currently fit to resume all duties but fit to commence a graduated return to work program and restricted duties. Based upon the assessment by Mr Perros, Dr McLaughlin considered that the applicant ought to return to work with modified duties taking into account his then current impairment in memory and concentration. To that end he noted he would suffer from increased distractibility which could be addressed by providing him a quieter and more controlled environment such as an office environment. He also suggested that the return to work program be based on 4 hours a day for 3 days a week. In respect of express inhibitors he noted that as a consequence of the neuro cognitive consequences of the head injury the applicant did suffer from a diminished level of functioning but despite those matters and despite Mr McLaughlin’s recommendation that the applicant undertake a work based rehabilitation program he considered any restrictions would be temporary. For instance in respect of an express enquiry as to whether the applicant would be fit to hold a firearm Dr McLaughlin was of the view that he was.
Dr McLaughlin did however recommend there be further neurological or neurosurgical opinion sought in relation to his continuing incapacity particularly in response to recent MRI and EEG investigations.
Work Solutions Australia arranged for further assessment of the applicant in April 2006 at which time the applicant was assessed by an occupational therapist, Kelly Tobin in conjunction with his general practitioner Dr Devsam. It was concluded that at that time he was fit to return to work on modified duties commencing in the office environment; that he should be reassessed by a psychiatrist with planned reviews to assist with appropriate decisions in the safe upgrading of his duties; that an appropriately qualified health professional develop and monitor the return to work plan; and that the applicant’s local general practitioner should be included in the development and monitoring of the return to work plan so as to provide ongoing feedback for review and upgrade of duties in conjunction with the psychiatrist.
The applicant had not been satisfied with particular comments made by Dr McLaughlin so a further assessment by another psychiatrist was arranged.[2]
[2] Affidavit of Tracee Sue Margules filed 10 March 2009, Annexure D, page 3 of 4.
Further independent psychiatric assessment was undertaken at the request of Ms Ho by Dr John McIntyre. His report of 2 May 2006 largely affirmed the earlier views expressed by Dr McLaughlin save that he made this interesting observation:
“(The applicant’s) insight and judgment I felt were only fair as he may be unaware of the slow pace of recovery from head injuries. Nonetheless, his account and presentation did not suggest to me he was suffering from a frontal lobe syndrome with disinhibition, poor judgment and facile optimism.”
As with Dr McLaughlin Dr McIntyre did not consider he had sustained a psychiatric injury but noted he had suffered subtle cognitive deficits as a result of his closed head injury. He anticipated he would recover over time. He too agreed that the applicant was capable of returning to work on a graduated basis with him initially resuming administrative duties only without shift work and commencing with 3 hours of work 3 days a week. Although Dr McIntyre accepted that the applicant was fit to hold a firearm he did not consider it necessary having regard to the duties which he thought were appropriate for him at that time. In response to a question concerning “other considerations” he noted that he considered that the applicant may, as a consequence of his head injury have an unrealistic grasp of his capabilities at present.
By late May 2006 the applicant commenced displaying significantly more erratic behaviour. Mr Cotton, manger of Wellbeing Services AFP gave evidence that he had been contacted by staff raising concerns about the applicant’s welfare. Those concerns had been allegedly raised earlier following complaints that Mr Gibbons had been repeatedly calling staff in an annoying manner. Also about that time Mr Cotton himself received a call from the applicant expressing concerns over his return to work arrangements and in particular indicating that he did not wish to return to Canberra. The applicant also expressed concern about the welfare of his daughter. It was evident from emails that had been forwarded by the applicant at that time that tension existed between the applicant and the AFP.[3]
[3] Affidavit of Anthony James Cotton filed 10 March 2009 Annexure A – email applicant to Cotton 12 May 2006.
Despite these exchanges Mr Cotton continued to receive complaints from staff that the applicant’s behaviour was distressing them. They continued to field enquiries from the applicant. Mr Cotton noted for instance that on multiple occasions the applicant would call him at work and after hours to discuss the issues that were concerning him. While he noted his demeanour on those occasions to be generally respectful he also considered that the applicant did attempt to be aggressive and intimidating on a number of occasions. In her evidence Amanda Ruth McCormick, Coordinator – Border AFP gave evidence that in the period from November to about May 2006 the involvement of staff levels and resources devoted to the applicant’s case was well in excess of that which would be devoted to an average member returning to work after an injury. This resource allocation was necessary to deal with the applicant’s idiosyncratic behaviour. Similar concerns were raised by Tracee Sue Margules, Team Leader of the Culture and Language Centre of the AFP who was involved in the applicant’s application for a Sydney posting which was being processed at about that time.
By email transmitted on 5 June 2006 between Dr Czoban, Mr Cotton, Ms Margules and Ms Pacor, the applicant’s return to work was discussed. At that time there were concerns about his mental wellbeing, particularly because of the complaints of inappropriate emails. By reason of these difficulties and particularly because of the behavioural issues being exhibited by the applicant, the AFP’s principal medical officer Dr Klaus Czoban recommended the applicant be assessed by a psychiatrist. Dr Czoban noted that the applicant had been insisting that he would only be assessed by a military medical practitioner. Accordingly arrangements were made for the applicant to be subjected to assessment by Dr Len Lamberth who was a consultant psychiatrist in the Australian Defence Force Health Services Section. On 14 June the applicant was subjected to further psychiatric assessment by Dr Lamberth, psychiatrist.[4]
[4] The applicant took objection to the evidence of Dr Lamberth on the basis that Dr Lamberth was not a registered medical practitioner in the ACT. Dr Lamberth had been registered in NSW before relocating to practice in the ACT. It appears that the relevant assessment was undertaken during the transitional time between Dr Lamberth’s cessation of registration in NSW and before the commencement of registration in the ACT. Those matters do not bear upon his capacity to provide an informed view on these matters.
Dr Lamberth largely agreed with the observations of both Dr McLaughlin and Dr McIntyre. However he did make additional remarks noting in particular that the applicant presented as someone with personality traits suggestive of a degree of narcissism which in Dr Lamberth’s view resulted in behaviour by him which other people had found to be objectionable. He noted that the applicant did demonstrate some insight into the unacceptable nature of that behaviour which was driven by a determination by the applicant to maintain proximity to and contact with his daughter. Dr Lamberth noted that the personality difficulties did not constitute unsuitability for retention as an operational police officer although if he was being considered for recruitment a different view might well be taken. In addition he noted that swelling of the frontal lobe as a result of the head injury could not be ruled out as a contributing factor to some of his behaviour. He noted that frontal lobe swelling could serve to exacerbate any pre-existing personality trait.
Otherwise Dr Lamberth largely agreed with the recommendations of the earlier psychiatrists that the applicant was medically fit to resume duties but not in the role as a surveillance officer and that his return to work should be graduated and subject to review.
After reviewing Dr Lamberth’s report Dr Czoban conferred with Ms Julie Drew, the Acting National Manager Human Resources, Mr Cotton and Mr Alan Scott, National Manager of Human Resources concerning the applicant’s return to work arrangements. Dr Czoban considered that the applicant’s behavioural issues although inappropriate did not necessarily indicate an underlying psychological disorder and accordingly he was able to be returned to work. Further it was the view of Dr Czoban that he was fit to begin work in a return to work program in ACT Policing. Dr Czoban concluded that on the basis of the medical evidence there was no diagnosable psychological or psychiatric condition and accordingly it was on that basis that the applicant was to be returned to work on a very gradual and closely supervised basis.
At the time of these assessments the applicant was residing at Tweed Heads. Accordingly his personal circumstances required arrangements to be made for him to attend for medical assessment and also for interviews with prospective supervisors in the AFP. So much was exhibited in the tone of an email forwarded by him on 11 June 2006.[5] The applicant had detailed a significant log of claims and was clearly of the view that the AFP were responsible for many of his then current personal difficulties.
[5] Affidavit of Anthony James Cotton filed 10 March 2009 Annexure G in particular pages 2 and 3.
Detective Superintendent McCormick had earlier concluded that by reason of the applicant’s medical assessments it would not be possible for him to return to the surveillance role that he had occupied at the time of his injuries. For instance the nature of surveillance work required that members be able to drive and be “use of force” qualified and able to maintain that qualification. She noted that initially the return to work program designed for the applicant involved supervised work involving routine light duties over regular hours and that completing a “use of force” training package was not approved as part of his initial stage return to work program. She noted that the applicant had been initially temporarily transferred to Sydney to fill a vacancy within the surveillance environment and he was no longer able to do so because of the injuries suffered in his accident. Upon that basis the position of the Sydney office was that the applicant should return to his “home” position. Because the “ACT Policing” was the “home” office responsible for the applicant his case was thereby handed across to Ms Tracee Margules, the National Advisor for Injury Management and Ms Jenny Pacor of the Injury Management Team Canberra.
From June the applicant’s behaviour appeared to become progressively more difficult, disruptive and offensive to individual staff members. Accordingly on 15 June 2008 a meeting was called and attended by Ms Margules, Ms Drew and the applicant to discuss the findings of Dr Lamberth’s assessment and arrangements for his return to work in Canberra with ACT Policing. The applicant was also counselled about his past inappropriate behaviour and warned that a continuation of that behaviour would result in disciplinary action as well as putting his successful return to work in jeopardy. Mr Cotton noted that his response to that counselling was quite positive observing that at the end of the meeting the applicant was “looking forward quite positively to returning to work”.
Ms Margules was principally responsible for the return to work program. Following the meeting of 15 June 2006 she put in training arrangements for the applicant’s return to Canberra and the undertaking of suitable duties with ACT Policing. During that period she noted that the applicant’s contact with her began to become increasingly intense. She stated that the applicant was contacting her constantly throughout the day and on her work mobile after hours late into the evening and early morning. Indeed she noted on one occasion the applicant called her on her mobile phone in the hours between midnight and dawn. She particularly noted that the applicant called her on occasions when he had a personal issue particularly one that related to his daughter and that during the course of these conversations he would often cry and it would be difficult to disengage from the call. Ultimately she provided for the schedule for the return to work program to coincide with her return from leave on 21 July 2006. Throughout that time it had been recognised that the applicant’s injuries were non-compensable and that consistent with AFP policy the applicant had exhausted any other leave entitlements that he had including long service and accumulated sick and annual leave entitlements. Notwithstanding those matters Ms Margules ensured that he was extended further paid miscellaneous leave with full personal leave entitlements pending his return to work.
By email of 6 July 2006 Ms Margules forwarded to the applicant a summary of his then current position together with a detailed return to work program. It was noted that as part of the process an external rehabilitation provider would be appointed to assist in facilitating the process. Significantly the email imposed caveats upon whom the applicant could have contact with noting:
“I regret that this has been necessary for the organisation to apply such limitations, however your behaviour over the past period has caused considerable stress and concern to those members you have contacted.”[6]
[6] Affidavit of Tracee Sue Margules Annexure B.
Despite Ms Margules’ efforts and the discussion on 15 June the applicant’s behaviour did not improve. Further complaints were made to Mr Cotton that the applicant was continuing to agitate his concerns in a frequent, insistent and inappropriate way. Such behaviour was manifest in the email forwarded by the applicant to Mr Cotton on 18 July 2006 at 6.11pm.[7]
[7] Affidavit of Anthony James Cotton filed 10 March 2009 Annexure H – email Gibbons to Cotton 18 July 2006 – 6.11pm.
That matters did not improve was demonstrated by the exchange of email correspondence between the applicant and Ms Joanna Calder of between 16 July 2006 and 19 July 2006.[8] The upshot of those exchanges was that Ms Calder sought the intervention of senior management in the form of Mr Alan Scott who was then the Manager of Professional Standards for the AFP.
[8] Affidavit of Joanna Maartje Calder filed 10 March 2009 Annexure B.
On 24 July a further meeting was conducted between the applicant, Ms Margules and Ms Catriona Miller, Rehabilitation Consultant with Dysaran Consulting. At that meeting the applicant’s medical circumstances were discussed. He told Ms Margules that he had no need for ongoing medical treatment and that he had ceased all his medication. By that it was to be inferred that he had no medical difficulty. After his assessment on 27 July and on 28 July the applicant was informed that a position with suitable duties for him had been found with the ACT Firearms Registry of the AFP. Arrangements were made for the applicant to meet with Ms Margules and Sergeant Sinclair, the officer in charge of the registry and Ms Miller on 28 July. On that occasion the meeting was conducted at the city station and the parties discussed, clarified and confirmed the duties that the applicant would be required to undertake in his position in the Firearms Registry and the support that he would have. Clear expectations were set and explained to the applicant. No particular concerns by the applicant were noted although it was observed by Ms Miller that the applicant was keen to do as many hours as soon as possible upon his return to work. That was agreed between all present at the meeting on the proviso that the applicant take, and if necessary extend, breaks throughout the day. Otherwise he was keen to start back on 8 hours a day. The applicant subsequently commenced work at the Firearms Registry on 31 July 2006.
Initial follow up upon his return to work was positive. On 2 August 2006 Ms Miller spoke with the applicant who told him that he was getting his work done and finding the staff helpful. He mentioned to her that he had been applying to do courses and when asked to be mindful of restrictions of duties and hours he expressed frustration that people treated him so because of his head injury. At that time he re-affirmed that he was having no problem with the hours that he was doing but indicated he was frustrated that he was not being considered eligible for training at that point. At that time he raised the prospect of that matter being discriminatory. The officer in charge of the ACT Firearms Registry was Detective Sergeant Michael Sinclair. He too reported positively upon the applicant’s initial return to work although he noted that within a short time difficulties were apparent. For instance he observed that the applicant was generally at work on his arrival at 8.00am and that the applicant remained at the workplace after 5.00pm. He noted that during conversations he had with the applicant that the applicant spoke of his personal life and relationships and that often these conversations would end up with the applicant in tears or verging on tears. He formed the view that the applicant’s circumstances were quite sad. He noted the applicant gave his emotional state as the reasoning for not going back to an empty flat preferring to stay at work instead. Sergeant Sinclair noted that he had become concerned that the applicant was working hours well in excess of what had been identified on the return to work plan so he told him that if he wished to work rather than be alone in his flat then he should avail himself of the facilities at the station including the gym to break up his work time with regular breaks. He noted the applicant appeared to have taken up that suggestion.
After a couple of weeks Detective Sinclair said he began receiving reports from other staff in his team that the applicant was repeatedly raising problems with them and issues that he had concerning various aspects of his employment. It was also observed that he appeared to be spending large amounts of time on the phone with other departments within the AFP agitating those same concerns in a repetitive and insistent manner. For instance he received a complaint that the applicant appeared to suffer bouts of depression after weekends away from work and that he often cried and made comments about his daughter and ex partner. He also expressed conspiratorial views about the AFP. For instance in emails forwarded by the applicant to various members of the AFP the applicant made complaints concerning a transfer from Sydney; use of non-standard equipment; insistence that his personal property had been stolen; complaints of disadvantage caused because of him being a lateral recruit and its impact upon promotion; complaints of stress caused to him by the AFP resulting in grinding his teeth thereby exposing him to unnecessary medical costs. Emails addressing these issues were forwarded by the applicant on 8 August 2006 at 4.44pm,[9] 8 August 2006 at 4.21pm[10], 8 August 2006 at 10.46am[11], 1 September 2006 at 12.34pm[12]; 8 September 2006 at 10.01am[13]; 8 September 2006 at 8.40am[14]. In addition the applicant made numerous telephone calls two of which were diarised on 27 August 2006 and 28 August 2006.[15]
[9] Affidavit of Tracee Sue Margules filed 10 March 2009 Annexure G.
[10] Affidavit of Tracee Sue Margules filed 10 March 2009 Annexure G.
[11] Affidavit of Tracee Sue Margules filed 10 March 2009 Annexure H.
[12] Affidavit of Tracee Sue Margules filed 10 March 2009 Annexure I.
[13] Affidavit of Mark Anthony Colbran filed 11 March 2009 Annexure H.
[14] Affidavit of Mark Anthony Colbran filed 11 March 2009 Annexure I.
[15] Affidavit of Mark Anthony Colbran filed 11 March 2009 Annexure C.
Consistent with Dysaran Consulting’s terms of engagement it oversaw the applicant’s return to work. At the end of the second week it conducted an assessment of the applicant’s progress. It was noted that he had made a positive start to his alternative duties and he did not find the work stressful or fatiguing. It was also noted that he was happy to be in the environment and appreciated the connection with other policing personnel with whom he was co-located. It was noted however that the applicant was distracted by issues related to his ex partner and his desire to seek a role in Sydney. It was also noted that he continued to raise extraneous matters related to his continuing education requests and his right to access such development. In particular it was observed that he expressed frustration with the constraints of the duties then assigned.
It was particularly observed that he took issue with his work hours not being reduced as recommended in a psychiatric report but yet in the course of a telephone conversation with Ms Miller stated that he enjoyed arriving half an hour early and working extra time to the finish. Those observations were consistent with the remarks reported to Sergeant Sinclair.
Upon clinical presentation it was observed that the applicant’s presentation at interview was “positive but incongruous. There are many discrepancies between the applicant’s version of his history and subsequent treatment and that which is medically recorded.” It was noted that his indicated injury personality traits tended towards impulsivity, diminished judgment and mood disturbance. It was noted that those traits were observed in the workplace in an exaggerated form beyond narcissism and that they had led to difficulties in the workplace. Under the heading “barriers to progress” Ms Millar noted:
“During his return to work, Mr Gibbons has demonstrated maladaptive social behaviour including agitation and irritability. He has reduced awareness of his cognitive and behavioural deficits evidenced by his difficulties with self regulation and modulation – making frequent phone calls and sending emails (on one occasion at 2.00am) becoming distracted by issues which are outside the parameters of his current work station.
2. Mr Gibbons has a heightened sense of injustice, often citing circumstances which cause him to behave the way he does. He has a tendency to obsess about these matters. He demonstrates inflexibility in his thinking and difficulties with problem solving.”[16]
[16] Affidavit of Catriona Anne Miller filed 10 March 2009, Annexure B page 10.
In her report Ms Miller opined that a return to work program process was recommended to enable the applicant to undertake duties which have a graduated cognitive and behavioural demand. It was noted that his recovery would continue over the next 12 to 18 months and that the opportunity of workplace rehabilitation which was then being offered by the AFP provided an excellent opportunity for him to test his work capacity in a supportive environment and for a mediation to be assessed if demonstrated to be necessary. She noted that he was continuing to demonstrate signs of cognitive deficit, that is occasional short term memory dysfunction, poor self monitoring and reduced insight into his deficits together with behavioural difficulties in that he was easily agitated and occasionally aggressive towards staff members and health professionals. She recommended a period at work for six weeks to justify reasonable potential to continue with rehabilitation and that at the conclusion of a successful 6 week initial period there be further alternative duties to be upgraded with cognitive and behavioural demand. Furthermore in order to improve the likelihood of success of the return to work it was recommended the applicant deal more directly with his supervisor and policing personnel in relation to his duties with the monitoring of Dysaran Consulting so that his return to work could be separated as much as possible from other grievances.
Unfortunately that did not occur as the emails referred to above indicate the applicant demonstrated considerable difficulty in separating those matters.
In the meantime the applicant had brought himself to the adverse attention of senior management in June or July 2006. At that time a complaint was made by Commander Jenny Ross who had replaced Alan Scott as the Manager of Professional Standards. He in turn had then been appointed the Manager of People Strategies AFP. She informed Mr Scott that the applicant had contacted staff in her office on many occasions making allegations of criminal behaviour in the AFP including corruption. Commander Ross informed Mr Scott that the applicant persisted in his complaints about these matters despite the matters having been dealt with by the Professional Standards team and the issues having been resolved. Mr Scott was told that because of the applicant’s behaviour a rule had been introduced into the office whereby he was to be put into direct contact with Commander Ross in the event that he phoned so that she could deal with him personally. With that information in mind Mr Scott was aware of who the applicant was when he was contacted by Superintendent Colbran from ACT policing regarding concerns that Superintendent Colbran had about the applicant’s behaviour in his role in ACT Policing as part of his return to work program. Superintendent Colbran complained that the applicant frequently contacted numerous staff within the AFP about a variety of issues including moving expenses and a request to wear non standard uniform and concerning a complaint relating to property allegedly stolen by the AFP. Those matters were included within the matters detailed in the email correspondence noted earlier.
Matters came to a head in early October 2006 when the executive assistant to the AFP Commissioner referred an email to Mr Scott which had been forwarded by the applicant directly to the Commissioner and also to the Chief Police Officer of the ACT.[17] In the email the applicant complained of “inequitable treatment” arising from the various issues which had been identified in earlier email correspondence to other members of the AFP. In his email he particularly noted:
“I have attempted to have these issues addressed for the past eleven and a half months although to no avail. I apologise for raising these issues with you although I find myself in the position where I honestly believe that I am being forced to resign due to the inequities and certain corrupt behaviour I have identified. Unfortunately I respectfully seek that as the above issues have been unnecessarily dragged out that each matter is addressed and a finding for each is decided on by Friday 6 September 2006.
I will be seeking to place a claim form for stress and anxiety, which I have been subjected to over the past eleven and a half months. In addition to this I have already drafted and am having it looked over by a legal representative, a complaint with the Human Rights and Equal Employment Commission with a claim for significant damages. Further to this I am commencing a claim through the Industrial Court for constructive dismissal and a claim for damages regarding duty of care. I really wanted to put these matters behind me and get on with my career, while enjoying what relationship I am able to have with my six year old daughter, although things have continued and continued.”
[17] Affidavit of Alan Sean Luke Scott filed 16 April 2009 Annexure A.
In his evidence Mr Scott noted that the email was particularly inappropriate as it represented a further instance of the applicant failing to comply with a direction concerning persons with whom he was to have contact. Mr Scott noted that the applicant had been told on a number of previous occasions that this type of contact with staff not directly concerned with his issues was not to occur[18]. It was because of that and other alleged reports that Mr Scott commenced a process of considering the employment suitability of the applicant pursuant to section 28 of the AFP Act. The particulars of those matters were addressed in the “consideration of termination of employment section 28 – Australian Federal Police Act 1979” notice that was forwarded to the applicant by Mr Scott on 6 October 2006.[19]
[18] Instances of other agencies emails forwarded by the applicant to various officers of the AFP which incorporated outrageous demands and constituted clearly inappropriate behaviour are annexed to the affidavit of Anthony James Cotton filed 10 March 2009 at Annexures D, E, G, I and J.
[19] Affidavit of Alan Sean Luke Scott filed 16 April 2009 Annexure B.
In particular Mr Scott noted:
“On 15 June 2006 you attended a meeting in Canberra with the Acting National Manager of Human Resources, the Manager of Wellbeing Services and an employee from Injury Management and Rehabilitation. At that meeting, the Acting National Manager, Ms Julie Drew, raised concerns about your conduct while on deployment in Sydney, particularly your frequent, troubled, threatening and emotional communications with the AFP in Sydney, specifically AFP management and the Sydney based human resources team. Behaviour under examination included many emails, phone calls and text messages concerning certain financial payments, the return of property and threats to speak to the media about your alleged treatment by the AFP. The file note of that meeting (attached) states that a medical report indicated you were medically fit for return to work with the AFP on a graduated basis. There were no medical issues that precluded you from work in a limited capacity and in familiar work circumstances. The medical report indicated that your behavioural issues were not related to a medical or psychological condition.
It was against this background that the Acting National Manager agreed to facilitate your transfer from Sydney to Canberra. However, Ms Drew made it abundantly clear that your behaviour in dealing with AFP management and the human resource team in Sydney was totally unacceptable. She stressed that you had a personal responsibility to address your behaviour and a corresponding requirement for self management.
…
The manager of Professional Standards has advised me that you have spoken to her staff many times since April 2006, including after the date of your meeting with Ms Drew. While you are entitled to raise matters of concern with Professional Standards, … the manager reports that your contacts are often convoluted and it is difficult to determine if you in fact have valid issues to raise. …I am aware that you have made a number of claims about the AFP and some of our employees. These matters have been examined in the normal way using the processes that are available for dealing with complaints and allegations. However, it appears to me that you have persisted in a number of these claims notwithstanding that you have been given detailed advice about the AFP’s position. The manager of Professional Standards has advised me that because of your continued behaviour in this regard she has instituted a requirement for all your contact with Professional Standards to be with her personally.
On 17 August 2006 Detective Superintendent Colbran from ACT Policing in a return to work program document advised you that your work performance will be monitored to ensure that it meets the acceptable standards in relation to behavioural and attitudinal expectations of a member of the AFP. However in an email dated 24 August 2006 (attached) Detective Superintendent Colbran advised you he considered some of your behaviour was unacceptable, particularly persistent contact with ACT human resources staff when they had already answered your questions. He indicated the insistent nature of your behaviour did not meet expectations and he spelt out a clear requirement to treat your work colleagues with dignity and respect.
…
On 8 September 2006 Detective Superintendent Colbran again wrote to you dealing with your claim that the AFP had stolen some of your belongings. He explained that the AFP was not responsible for the belongings in question and he cautioned you about strong language on this point. Superintendent Colbran also dealt with you at length concerning your claim for Senior Constable status and questioned whether raising these issues directly with the Commissioner and the Chief Police Officer is an appropriate course to follow. Additionally, you have persisted in claims about the issue of certain accoutrements and Superintendent Colbran has indicated that the AFP Uniform Committee is the appropriate forum to consider these issues. I am concerned your behaviour during your deployment to ACT Policing has not been in accordance with the directive given by the Acting National Manager or senior ACT Policing staff.
The staff movements area within People Strategies have advised me that you have recently been engaging in conduct with them that they characterise as harassing. … It concerns me that employees and staff movements have experienced significant stress as a result of your behaviour and will not now accept any telephone calls from you. …It appears to me that you have not accepted previous advice to treat your fellow employees with dignity and respect.
On 4 October 2006 you sent an email message to the Commissioner and the Chief Police Officer concerning claims that the AFP has treated your poorly. … It concerns me that the issues you have raised in the emails have been either dealt with previously or are not matters over which the AFP has any control. This causes me to have significant concerns about your judgment.
I form the view that your behaviour may be inconsistent with the values of the AFP. …
I have taken note that you initially commenced employment with the AFP in August 2004. The Performance Development Agreements (PDA) that exist for the period of your employment indicate your performance has been satisfactory, although the PDA does refer to you working under difficult circumstances as a result of a family situation. However, in coming to a decision about your employment, it is difficult for me not to give weight to the inappropriate nature of your behaviour and the continuing nature of your conduct despite a very clear and unambiguous counselling session from Ms Drew earlier this year and subsequent direction and advice from Detective Superintendent Colbran. I have therefore decided to consider your dismissal from the AFP.”
The applicant was afforded seven days to respond.
Concurrently with that notice the applicant was also served with a notice of suspension from duty premised upon a “failure to follow the reasonable requests of your employer to refrain from certain types of unacceptable behaviour.”
By a response dated 12 October 2006 the applicant responded to the “considered termination” notice. In his reply the applicant noted firstly that medical advice suggested recovery from his injury would take 18 to 24 months. He relied upon the opinion of Dr Lamberth that swelling at the frontal lobes as a result of the head injury sustained by the applicant could not be ruled out as a contributing factor in some of his behaviour. In addition he complained that his return to ACT Community Policing resulted in him being immersed into an area that was unfamiliar and repetitive and that, to that end, his return to work was not graduated because he was immediately placed on eight hour shifts for five days a week from 8.00am to 4.00pm which was not in keeping with the medical advice. He also complained that he was suffering from other stress and anxiety related to matters concerning his employment with the AFP in particular the removal of his property, the supply of personal property to his former defacto, a change in uniform requirements and difficulties with recognition of his prior service for advancement to Senior Constable. In addition there were ongoing life issues that he complained of including ongoing property issues with his former defacto, restricted custody rights in respect of his daughter and stress and anxiety and humiliation concerning his daughter’s feelings. He also complained that he had been provided limited financial and emotional support by the AFP which matters were now being addressed.
Notwithstanding the applicant’s submissions by letter dated 17 October 2006 he was formally notified of the termination of his employment. In particular in that letter Mr Scott noted:
“As I have previously advised you, this matter relates to your failure to refrain from certain types of unacceptable behaviour. On 15 June 2006 you attended a meeting in Canberra where the Acting National Manager of Human Resources, Ms Julie Drew, raised concerns about your conduct while on deployment in Sydney. Specifically, she was concerned about your frequent, troubled, threatening and emotional communications with the AFP management and human resources area in Sydney. The behaviour under examination included many emails, phone calls and text messages concerning certain financial payments, the return of property and threats to speak to the media about your alleged treatment by the AFP. The file note of that meeting, previously supplied, states that a medical report indicated you were medically fit for return to work with the AFP on a graduated basis. There were no medical issues that precluded you from work in a limited capacity and in familiar work circumstances. The medical report indicated that your behavioural issues were not related to a medical or psychological condition. Ms Drew made it abundantly clear to you that your conduct was unacceptable and that any reoccurrence may result in your employment suitability being considered. Since that time your conduct has continued notwithstanding very clear direction from Ms Drew and a senior AFP employee in ACT Policing. I have detailed the nature of the unacceptable conduct in my notice dated 6 October 2006.
I note that in your submission you acknowledge you are remorseful for your actions which you describe as poor, unprofessional and uncharacteristic. …
I have taken into account that you have been through a number of difficult issues in the last 12 months. I note that you do not attribute all of these issues to the AFP. Nevertheless, it is reasonable for the AFP to have very high standards of behaviour and to expect the highest levels of professional conduct from our employees. This includes the manner in which our employees interact with each other in a professional and harmonious workplace.”
By operation of that notice the applicant’s employment was terminated with effect from 17 October.
Observations on Credit
The applicant challenged much of the respondent’s evidence. In broad terms he considered the respondent had acted in bad faith in its dealings with him. He considered that the AFP’s senior officers in effect conspired to have him dismissed from the service. In short, he says he was not given a “fair go”.
Specifically he denies that a graduated return to work program was put in place. He contends that the return to work program put in place does not accord with the expert’s recommendations. In addition he says that the respondent failed to properly consider other options including an assignment for him in Sydney. Further he says the decision to direct his return to work in Canberra exacerbated the effects of his injury particularly because of the social isolation occasioned by his posting to Canberra and finally he contends he was never afforded a fair opportunity to return to work in any event.
Most of these complaints were founded in the applicant’s subjective assessment of the background facts. Although the applicant was unrepresented he was clearly able to and was confident in the presentation of his case. It may be that he had been assisted with some pro bono legal assistance at some point. In any event he informed the Court he was undertaking legal studies at an undergraduate level. There was some appreciation of the legal issues relevant to his case. So much was manifested in his submissions as well as some of the exchanges made through the course of the trial although on many occasions cross examination appeared to be of marginal relevance.
However despite those matters the applicant’s conduct of his case smacked of exactly the very personality difficulties identified by Dr Lamberth and others, in particular the narcissism giving rise to objectional behaviour. I accept he has, what Dr Lamberth described as, “personality difficulties”. Although as at June 2006 when Dr Lamberth reported it was likely that those difficulties were exacerbated by the then extant frontal lobe swelling that matter ought to have been resolved by trial.
At trial the applicant demonstrated the same narcissistic traits diagnosed by Dr Lamberth. He was entirely egocentric and justified all his behaviour by reference to himself as the focal point. For instance the evidence is that during the course of his recovery he called Ms Margules on one occasion in the early hours of the morning (that being the day of his daughter’s birthday) and on another occasion about dinner time.[20] On both occasions the applicant called Ms Margules on her mobile phone. While the applicant denies the call in the early hours of the morning I do not accept his denials of that matter and prefer the evidence of Ms Margules who is far more dispassionate and objective than the applicant.
[20] Transcript 29 April 2009 page 29; Affidavit Ms Margules filed 10 March 2009 at paragraph 20.
Other troubling behaviour included his aggressiveness. He demonstrated unnecessary aggression. This aggression was both apparent and passive. His demeanour at trial was frequently aggressive. Often he was needlessly argumentative. Although I do not know if his active aggression was based on ignorance, suspicion or apprehension. The outcome was the same. It manifested in a relevant incapacity to view matters from the perspective of those within the AFP working to balance the rights and obligations of both the applicant and the AFP in resolving the difficult situation facing them.
There were many instances of aggression of a more passive nature illustrated by emails forwarded by the applicant to a number of functionaries within the AFP. For instance when the applicant became dissatisfied with travel arrangements he vented his frustration upon Ms Calder, the staff movements officer with emails which sought to “shoot the messenger”.[21] On another occasion he delivered a most extraordinary log of claims upon the AFP by email directed to Mr Tony Cotton, Manager Wellbeing Services, Human Resource Management[22] and making the various observations of the kind contained in his email of 12 May 2006.[23]
[21] Affidavit of Johanna Maartje Calder filed 10 March 2009 exhibits A, B and C
[22] Exhibit 9
[23] Exhibit 8
His unreasonableness and lack of balance was further demonstrated by his continued objection to and refusal to recognise the medical qualifications of Dr Lamberth. The applicant continued to insist Dr Lamberth was unqualified to express any medical opinion because at the time of assessment Dr Lamberth was registered in neither New South Wales or the ACT. It so happened Dr Lamberth saw the applicant during a transitional phase of his registration as he, that is Dr Lamberth, relocated his registration from New South Wales to the ACT. He was at the time a consultant psychiatrist with the AFP. In my view there was no sound or sensible basis to object to Dr Lamberth’s competence as an expert witness. Despite this the applicant persisted.
Aside from those matters the applicant pursued unsustainable complaints. For instance the applicant insisted that his return to work regime was against medical advice.[24]
[24] Transcript page 81 line 35
However the return to work program was set out by Kate Miller of Dysaran.[25] It was implemented in consultation with him. To a large extent particularly in the early stages the applicant was free to work the hours he chose. The regime the applicant complained of was put in place to enable the AFP to pay him in circumstances where it otherwise would not have been lawful to do so. I am satisfied that his complaint that it was implemented contrary to advice is not correct.
[25] Affidavit Gibbons filed 19 January 2009 exhibit 1 pages 113, 117, 125 and 126; Affidavit Kate Miller filed 10 March 2009 paragraph [15]
Ultimately the applicant’s conduct at trial together with his general conduct gives me basis for grave reservations about the reliability of his evidence when in conflict with the evidence of others. The applicant appeared to either lack insight into the unreasonableness of his behaviour and the views of others or was so egocentric and obsessed by his situation that any sense of balance went wanting. These matters were exacerbated by the nature of his injuries that being head injuries which also impacted upon his capacity to accurately recall matters and account matters of historical significance.
This matter is particularly significant in the context of this case. Despite the disputes in respect of some points of evidence this case is one where the context is largely about the inferences to be drawn from patently undisputed facts. For instance the emails and their contents are not in dispute. However there is dispute as to whether the AFP was reasonable in concluding from them that the applicant’s behaviour supported its concerns that he suffered behavioural issues rendering him unsuitable for service in the AFP. My view of the applicant was that he lacked any sense of objectivity on that and related issues.
By way of contrast the evidence of each of the witnesses called for the respondents was evidence of unrelated persons within the AFP and its advisors. Almost without exception the applicant challenged in some way the recall of those witnesses in respect of some aspect of their evidence. The challenge was always to some point of evidence that was unfavourable to the applicant’s case.
In reality the applicant, by inference, contends the witnesses must have conspired to collude in the giving of their evidence which was adverse to the applicant. I do not accept that that has occurred. Each of those witnesses have provided separate accounts of discreet dealings with the applicant. In many instances they have alleged inappropriate behaviour by the applicant in the context of dealings with him. For instance with Mr Cotton and Ms Calder the emails provide an objective basis for accepting their complaints in the face of the applicant’s general view that he has not been given a fair go. That is to say they are two instances where the applicant has alleged that the organisation has been manifestly unfair to him. However I do not accept that to be the case and the emails illustrate the unreasonable and disproportionate response by the applicant to his sense of aggrievement.
In respect of the evidence of others such as Ms Miller, Ms Margules and Sergeant Sinclair concerning the return to work program their evidence is simply more plausible. The applicant says the advice concerning return to work was ignored. First one must question why the officers would ignore such advice given there was no apparent benefit for them doing so. But in any event and more tellingly the evidence on this point reveals the truth. They say, and I accept, the applicant was in desperate financial circumstances. He had not suffered a work related injury and therefore was not entitled to any employer based compensation. He had exhausted all leave entitlements including his long service leave and holiday and special leave entitlements. He had no savings or any other means by which to sustain himself and indeed had for a short time been so desperate as to have to live out of his car. Finally the AFP could not lawfully pay him until he had returned to work. Those witnesses stated that doing the best they could for him they provided a return to work program which was to afford him maximum flexibility. Although on paper he was required to return to work full time which would then have entitled him to his usual remuneration benefits, it was expressly agreed that he was to return on those terms in form only. In reality he was only expected to progressively work toward a full time return to work. In the interim he was to take as many breaks as he felt necessary and was not to overstress himself. I consider these people did all they could to ensure a successful return to work. The facts as I find them are quite contrary to the view taken by the applicant concerning their efforts.
Overall I have rejected the evidence of the applicant where it is inconsistent with that of any other witness. I have no hesitation in accepting the reliability of any of the respondent’s witnesses and I act upon their evidence.
The applicant’s claim
On the basis set out in the Amended Statement of Claim filed 6 March 2008, the applicant seeks orders in respect of alleged breaches by the respondent of:
a)Sections 5 and 15 Disability Discrimination Act 1992 (Cth) (“DDA”) (direct discrimination in employment);
b)Sections 6 and 15 DDA (indirect discrimination in employment).
The Legislative Scheme
The court’s jurisdiction to deal with the application arises from section 46PO Human Rights and Equal Opportunity Commission Act 1986 (Cth). In particular the court has power, pursuant to sub-section 46PO(4) to make certain orders if it is satisfied that there has been unlawful discrimination by any respondent.
Section 5 DDA (disability discrimination) provides:
“(1) For the purposes of this Act a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.”
Section 6 DDA (indirect disability discrimination) provides:
“For the purposes of the Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Section 15 DDA (discrimination in employment) provides:
“(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(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.
…
(4) Neither paragraph (1)(b) nor 2(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the persons’ past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performances 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 the disability and the provision of which would impose an unjustifiable hardship on the employer.”
Section 10 DDA (discrimination in employment) provides:
“If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason.”
Section 11 DDA (discrimination in employment) provides:
“For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability on a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities – an action plan given to the Commission under section 64.”
Section 4 DDA (interpretation) relevantly provides:
“Commonwealth employee means a person who…
(g) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979)…
Disability, in relation to a person, means…
(a) total or partial loss of the person’s bodily or mental functions; or
…
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
disability discrimination has the meaning given by sections 5 to 9 (inclusive).
discriminate has the meaning given by sections 5 to 9 (inclusive)…
employment includes…
(c) work as a Commonwealth employee; and
”
The Agreed Matters
The respondent admits that, by virtue of the definitions of “Commonwealth employee” and “employment” in section 4 DDA, the relevant provisions of the DDA applied to the applicant in respect of the applicant’s employment with the respondent.
The Issues
The applicant bears the onus of proof in relation to the alleged acts of discrimination, such onus to be discharged on the balance of probabilities: see Hollingdale v North Coast Areas Health Service [2006] FMCA 5 at paragraphs [138] – [139].
In considering the application it was submitted by the respondent the issues to be determined by the court are as follows:
a)In relation to the claim of direct discrimination under sections 5 and 15 DDA:
i)Did the respondent treat the applicant less favourably than, in circumstances that are the same or are not materially different, the respondent treats or would treat a person without the disability; and
ii)Was such treatment because of the applicant’s “disability” as defined in section 4 DDA.
b)In relation to the claim of indirect discrimination under sections 6 and 15 DDA:
i)Did the respondent require the applicant to comply with a requirement or condition;
ii)Would a substantially higher proportion of persons without the disability comply or be able to comply with the requirement or condition;
iii)Is the requirement or condition not reasonable having regard to the circumstances of the case; and
iv)Was the applicant not able to comply with the requirement or condition.
c)In relation to the defence to discrimination in employment under sub-section 15(4) DDA:
i)Taking into account the applicant’s past training, qualifications, experience relevant to the particular employment, the applicant’s performance as an employee and all other relevant factors, would the applicant, because of his disability, be unable to carry out the inherent requirements of the particular employment; or
ii)Taking into account the applicant’s past training, qualifications, experience relevant to the particular employment, the applicant’s performance as an employee and all other relevant factors, would the applicant, because of his disability, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the respondent.
In addition there was an issue as to whether or not the applicant suffered a disability.
The applicant did not cavil with the respondent’s submissions on these matters. His submissions were directed more to questions of the perceived unfairness by the AFP that he considered he had been subjected to. They were not really framed against a legal background.
Did the Applicant suffer a Disability?
The first question to be resolved is whether or not the applicant was suffering from a disability. Disability is defined in section 4 to mean:
“Disability in relation to a person means:
(a) total or partial loss of the person’s bodily or mental functions ;
…
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability);
…”
It is relevant to observe at the outset that the applicant suffered significant physical injuries in the motor accident of October 2006. Those physical injuries have not been in any respect relevant to his claim. Even his claim that he has required specially modified accoutrements including an “H” holster have not featured as relevant to the disability alleged. The applicant complains about the response by the AFP to his log of complaints. Those complaints included his complaints concerning the AFP’s posting of him to Canberra; provision of modified equipment; claims for damages in respect of lost personal possessions; and lack of promotion and discrimination as a lateral recruit. He alleged the AFP did not respond appropriately to those complaints and that its inappropriate response constituted an improper basis for dismissal.
In essence the applicant does not prosecute his action on the basis that his disability includes a “malfunction of a part of [his] body” although he clearly did suffer some physical disability. Likewise no evidence has been placed before the Court to demonstrate any causal link between such disability and any contravention of sections 5 or 6.
In his amended statement of claim the applicant contended in very broad terms that the physical injuries alleged (which the evidence demonstrates were suffered) affected his behaviour.[26]
[26] Amended Statement of Claim paragraph 17
At paragraph 42 of the amended statement of claim the direct discrimination alleged by the applicant was the respondent suspending then terminating the applicant’s employment with the AFP “because of his alleged behaviour”. That behaviour was alleged to be a “mere manifestation of an underlying disorder or condition”.[27]
[27] Amended Statement of Claim paragraphs 42 and 43
The direct discrimination alleged was the respondent’s failure to “reasonably assist the applicant to meet the return to work requirements and as a consequence the applicant was unable to meet the return to work requirements”.[28]
[28] Amended Statement of claim paragraph 31
The notice of consideration of termination of employment informed the applicant that the respondent had “concerns about your conduct while on a deployment in Sydney, particularly your frequent, troubled, threatening and emotional communications with the AFP in Sydney… The medical report indicates that your behavioural issues are not related to a medical or psychological condition”. Other passages in the notice included a complaint in respect of professional standards which arose because of his “continued behaviour”; behaviour which was regarded as unacceptable particularly concerning persistent contact with AFP staff which had already answered enquiries together with the “insistent nature of your behaviour” and failing to meet expectations in relation to treatment of work colleagues “with dignity and respect”; inappropriate contact with senior officers including the Commissioner and Chief Police Officer; and contact with personnel within the staff movements area which was characterised as “harassing”.
The notice concluded:
“I have formed the view that your behaviour may be inconsistent with the values of the AFP”.[29]
[29] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 38 page 226 – 229
Prior to forwarding this notice to the applicant, the respondent caused the applicant to be assessed by a number of medical practitioners.
Initially medical assessment was undertaken by an occupational medical specialist, Dr John Sowby on 23 January 2006 who noted the head injuries the applicant had suffered in the accident but otherwise noted no “other prior psychological or psychiatric treatment”. He noted that the applicant’s presentation before him was with appropriate behavioural style for the interview and “no obvious abnormalities in his thought processes”.[30]
[30] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 9 page 34
Subsequently the applicant was assessed by Mr Peter Perros consultant psychologist on 1 March 2006. Mr Perros indicated the applicant’s behaviour was characterised by obsessional slowness and slowed mentation. His assessment indicated that at the time the applicant was suffering some neurological deficit as a consequence of his injuries although he did expect the applicant’s condition to improve over the following 12 to 18 months. He made no observations about the effect of such factors upon his personality although he did note the applicant might require ongoing counselling and psychiatric input “on treatment options for his symptoms of depression”.[31]
[31] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 11 page 49
On 7 March 2006 the applicant was assessed by Dr K.T. McLachlan who concluded the applicant did not satisfy conditions for the diagnosis of any psychiatric condition beyond the mild cognitive disorder and ongoing effects of the serious head injury.[32] He opined that there were no “current psychological, personal or social factors that were inhibiting the applicant from resuming his previous work role”.[33] He concluded he did not have a psychiatric condition.[34]
[32] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 12 page 57
[33] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 12 page 58
[34] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 12 page 60
On 2 May 2006 the applicant was presented to a second psychiatrist, Dr J. McIntyre. Following examination by Dr McIntyre he too concluded the applicant was not suffering any diagnosable psychiatric illness although he was suffering some cognitive deficit in respect of which recovery could be anticipated. He did however reveal a possible clue to the applicant’s difficult personality when he noted the applicant had “an unrealistic grasp of his capabilities at the present”.[35]
[35] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 15 page 101
These observations fit neatly with the observations of Dr Lamberth a psychiatrist who assessed the applicant on 14 June 2006. Following the assessment at which time Dr Lamberth agreed the applicant was not suffering from any diagnosable psychiatric disorder. He did note that he had “personality difficulties as outlined above”. He continued, “these do not constitute unsuitabilities for retention as an operational police officer, although, if being considered for recruitment, a different view might well be taken. No psychiatric treatment is indicated”.[36] Instructively Dr Lamberth also noted earlier in his report concerning the applicant:
“He certainly presents as someone with personality traits suggestive of a degree of narcissism which, in my opinion, has determined behaviour (in the form of making what he sees as justifiable demands) which other people have found to be objectionable. He does demonstrate some insight into this unacceptable nature of this behaviour which is very much driven by his determination to maintain proximity to, and contact with, his daughter.”[37]
[36] Affidavit Paul Edward George Gibbons filed 19 January 2009 Annexure 42 page 241
[37] Affidavit Paul Edward George Gibbons filed 19 January 2009 Page 239
From the medical evidence it follows that the applicant had personality traits which were suggestive of narcissism and obsessiveness. These traits gave rise to behaviour which others found objectionable. The only other relevant evidence on this matter came from the AFP chief medical officer, Dr K.N. Czoban. In cross examination he conceded as a possibility that some of the behaviour could have resulted from the original brain injury.[38]
[38] T 5 May 2009 p 50, Ln 4; Ln 77.
On balance I am satisfied that at the material time these characteristics were exacerbated because of the applicant’s head injury and its post accident affect.
The question remains however: did this constitute a disability as defined by section 4.
The respondent submitted that there was no clear evidence that the applicant suffered from a relevant disability under paragraphs (f) or (g) of the definition at the relevant time which manifested itself as behaviour of the type which gave rise to the suspension and subsequent termination of the applicant’s employment. It was contended that:
a)Opinions of the various medical specialists in their reports were not consistent;
b)The most recent medical assessment undertaken in respect of the applicant being the assessment by Dr Lamberth concluded the applicant was not suffering any diagnosable psychiatric disorder although he did have personality difficulties;
c)That in any event during cross examination Dr Czoban stated there could be other causes for the applicant’s behaviour including his genetic makeup, his family background and the environmental stressors that he was facing at the time.
It was contended that on that basis the court could not be satisfied to the requisite standard that the behaviour of the applicant which was the reason for his suspension and then termination was indeed a manifestation of a “disability” and that it was not for example the expression of some personality trait or other cause unrelated to any “disability”.
In particular the applicant relied upon the observations of Lindsay FM in Rana v Flinders University of SA[39]:
“What is required is medical opinion from suitably qualified persons as to their diagnosis accompanied by descriptions of the treatment provided to him and, crucially, the expression of opinion as to how the diagnosed condition or conditions manifests itself in the behaviours which the University has purportedly relied upon in excluding him from the certificate course. …”[40]
[39] (2005) FMCA 1473
[40] At [64]
Further:
“It is stating the obvious to say that where a mental health disability manifests itself in behavioural disturbances the Court should be especially vigilant to ensure there is evidence available to it, not only as to the nature of the disability but as to the way in which the disability manifests itself in terms of those behaviours. No such evidence was made available to me in this case”.[41]
[41] At [68]
In this case I am satisfied that the medical evidence was reasonably consistent. That is, that the applicant was not suffering from any psychiatric disorder but was suffering from the effects of some personality disturbance which was exacerbated in the months following the accident. The unchallenged medical opinion of the adverse affects of the head injury was that its affects were likely to last for a further 12 to 18 months from the time of his assessment. That is to say until March to September 2008. In my view the evidence establishes on balance that the applicant had a personality disorder albeit not a psychiatric condition the effects of which were exacerbated by his head trauma injury. It is well settled for the purposes of the Disability Discrimination Act that no distinction is to be drawn between the disability and its manifestation for the purposes of establishing whether discrimination occurred. In Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 Gleeson CJ at [11] stated, though on the context of his discussion of the comparator:
“It may be accepted, as following from paras (f) and (g) of the definition of disability, that the term “disability” includes functional disorders, such as an incapacity, or a diminished capacity to control behaviour. It may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability.”
Chief Justice Black who concurred with the majority in respect of its observations concerning section 6 noted,
“Section 6(a) … directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group”
No base or comparator groups were proposed by the applicant. As the majority in State of Queensland v Forest (supra) noted at [119], in applying Australian Iron & Steel Pty limited v Banovic (1989) 168 CLR 165 at 177-178, the base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed.
In its submissions the respondent contended that an appropriate base group in the present case would be a hypothetical group comprising:
a)General duty police officers (working on restricted duties) employed by the respondent;
b)Who engaged in the same behaviour as that which the applicant had engaged;
c)Who did not suffer from the disability alleged by the applicant.
I accept this submission correctly identifies the base group.
In this case, as with Forest v Queensland Health (supra), an inference is open that the proportion of people in the base group who do not have the applicant’s disability and who are able to comply with the respondent’s requirement or condition would be close to 100 per cent.
A difficulty arises however concerning the nature of the comparator group. This case like Forest v Queensland Health (supra) presents with an applicant with an unusual condition. In Forest v Queensland Health (supra) Her Honour at first instance determined “that commonsense dictates that the majority of people in the community…would have no difficulty accessing the premises without an animal and do not require an assistance dog to be able to access the respondent’s premises. Accordingly for the purposes of section 6, I am prepared to hold that a substantially higher proportion of persons without the applicant’s disability are able to comply with the requirement or condition imposed by the respondent in this case[47]”. In so proceeding Her Honour rejected a submission that in respect of the comparator group she did not require evidence of the proportion of people with the applicant’s disability who would have difficulty complying with the requirement or condition of the respondent. That approach was rejected by the Full Court.
[47] Forest v Queensland Health (2007) 161 FCR 152 para [69] at 170
The significance of this evidence in performing a valid assessment of the proportionate impact upon each group is well illustrated in this case.
The question raised in this case by the respondent is as to whether the applicant has addressed the issue of the comparator group. This requires a consideration of both the persons eligible to constitute this class and evidence in respect of that matter.
In Clarke v Catholic Education Office [48] at first instance Madgwick J proceeded on the premise that section 6(a) required a determination of the “appropriate base group” with which to compare the individual claim in discrimination and to decide whether a substantial proportion of those individuals in the base group are able to comply with the relevant requirement or condition.[49] His Honour did not make any express reference to any comparative group nor to questions of evidence relevant to a comparative group. The debate in that case and on appeal focussed upon identification of the “base group”.
[48] [2003] FCA 1085
[49] At [46].
In Forest v Queensland Health (supra) at first instance it is implicit in the judgment of Collier J that arguments were raised concerning the need to identify a comparative group.[50] Her Honour noted “there is no evidence before me as to the proportion of members of the comparative group (however defined) who would have difficulty complying with the requirement or condition of the respondent in this case.” It was that point which was taken on appeal and subject to explanation by Black CJ at [7] and Spender and Emmett JJ at [121].
[50] See [68].
In Catholic Education v Clarke (supra) the Full court did not expressly consider the interface of s6(a) and s6(c) and in State of Queensland v Forest (supra) the Full Court expressly reserved its position on that point it stating it did not have to decide it.
In my view there is a lacuna apparent between majorities’ remarks in Catholic Education v Clarke (supra) at [111] identifying that the comparison is not with the aggrieved person but recognising the need for a comparative group “…not…specifically identified…” and the Full Court’s statement in State of Queensland v Forest (supra) that there is a need to consider the proportion of people in the comparator group who are able to comply with the condition: that is, as the aggrieved person would naturally form part of such a group, how is he to be considered?
Although I recognise that the applicant himself is assessed individually under section 6(c) I do not read the words of the majority in Catholic Education v Clarke (supra) as excluding the applicant from consideration as part of the “second comparator” being “a group of persons with a disability”. This is particularly so as the majority in said of section 6(a):
“[112] section 6(a) of the DVA Act does not mean that the comparison must be between all persons with a disability and all those without it; Australian Iron & Steel v Banovic at 178, per Deane & Gaudron JJ. The determination of the appropriate groups must be based on the evidence in the particular case, whether the groups chosen must, as a matter of law, be capable of allowing comparison required by section 6(a) to be made; Australian Iron & Steel v Banovic at 178, per Deane & Gaudron JJ.”
In reaching that conclusion the majority in Catholic Education v Clarke (supra) had earlier noted that the High Court in Australian Iron & Steel v Banovic (supra) had observed that “a proportion must be a proportion of something”. The majority understood that to mean “that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s6(c). In any event it does not accord with the ordinary use of the language to refer to the “proportion” able to comply with a requirement in relation to only one person.”[51]
[51] Catholic Education v Clarke (supra) at [111].
Australian Iron & Steel v Banovic (supra) was a case concerning the operation of the Anti Discrimination Act 1977 (NSW) dealing within the context of a sex discrimination claim. In that factual context the prospect of effective comparative groups is greater than in the context of disability discrimination.
The situation is clearly different in the context of disability discrimination. Inevitably populations comprising the comparator group are going to be much smaller than may usually be available in the field of sex discrimination. If for instance there were to be no other persons identified as persons with the relevant disability then in the absence of consideration of the disabled applicant there could be no comparator group for the purposes of comparison of the competing groups. It is apparent from the judgment in Clarke v Catholic Education Office (supra) at first instance that consideration of the applicant was given in the context of s6(a). However it is not clear whether that consideration was in the context of a comparison with the aggrieved person per se or a broader context. It is not inconceivable that His Honour’s processes followed the process articulated by the Full court in State of Queensland v Forest (supra). His Honour’s conclusions could clearly have been reached by that means.
In that case it would appear that a consideration of the applicant within the context of s6(a) would be acceptable if it was not in the context of a comparison alone but rather in the context of including the applicant within the relevant population of disabled persons for determining the proportion of people in the comparative group who are able to comply with the condition. Then it would remain open to consider the applicant alone in a meaningful way as required by s6(c).
In this case the difficulty with the applicant’s case is that the evidence concerning the class of persons who may form the comparator group remains open because no evidence was adduced to establish whether there are any other similarly affected persons in the relevant population.
In this case the applicant simply failed to adduce evidence of the comparator group. Even if the result of such enquiries was to reveal no other persons fell within the comparator group such enquiries would be necessary to discharge the onus and satisfy the need to identify the proportion of people in that group who are able to comply with the condition. The result is no comparator group was established. It follows no assessment can be made as to whether the proportion of people in the base group who are able to comply with the condition are substantially higher than the proportion of people in the comparator group who are able to comply with that condition.
The applicant bears the onus of proof. Despite the applicant’s complaint premised upon the pleadings the fact remains that he carried the onus of proof but failed to discharge it in respect of this critical evidence.
Was the requirement reasonable having regard to the circumstances of the case
The respondent contends that even if it did require the applicant to comply with a requirement or condition then it was reasonable having regard to the circumstances of the case.
The relevant principles governing this consideration were set out by Her Honour Justice Collier in Forest v Queensland Health (supra) at page 70 where Her Honour in adopting the majority in Catholic Education v Clarke (supra) noted them as follows:
“i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111;
ii. The test of reasonableness 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 condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83;
iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and
iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition; Waters v Public Transport Corporation at 395…However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable…”
In respect of each of the alleged requirements and conditions:
Transfer away from the applicant’s family and support network in Sydney to resume duties in the ACT
The applicant contended that the transfer from Sydney to the ACT denied him his family and support network. In particular the applicant was most distressed at the difficulties such transfer would cause with his relationship with his daughter who lived with her mother. The applicant and his daughter’s mother were estranged.
However for the respondent it was contended that the applicant was transferred to Sydney on a term transfer to undertake surveillance work. By reason of his injuries he was no longer fit to undertake those duties and accordingly unfit for the position to which he had been posted. Canberra was the applicant’s original and substantive location and accordingly upon him being unable to fulfil the duties in his temporary posting in Sydney the return to his substantive location in Canberra was appropriate. In addition the respondent considered it could better support the applicant in Canberra because at that location there were persons qualified to assist in his return to work program and associated issues in particular Dr Czoban, Mr Cotton, Ms Margules and Ms Drew. I accept that evidence and consider it constitutes a reasonable explanation for the respondents’ requirement that the applicant be transferred from Sydney to the ACT.
Work in an unfamiliar environment
The applicant contended that the position to which he was posted in Canberra constituted an unfamiliar environment. For the respondent it was submitted that the position constituted work of a low level administrative nature for which the applicant had some experience particularly in respect of data entry albeit not in the firearms section. In addition it was noted that the applicant had worked in that environment and knew some of the officers who worked in that workplace. The early positive feedback in respect of the applicant’s performance lends support to those views. In addition the workplace proposed duties and environment which were identified after careful consideration of a range of factors including both medical advice and the applicant’s wishes. He was given considerable support and assistance in his general return to work and significant indulgences were afforded. In particular the applicant was encouraged to work flexible hours and not overstress himself. He was not expected to work a full working week although he was being paid on a full time basis. Significant latitude was allowed to accommodate the fact that the accident was not one compensable by the respondent and the applicant had exhausted his leave entitlements. I do not regard this condition as having been unreasonable.
Work reduced hours only briefly before resuming a full time workload without the respondent first consulting with treating and assessing medical practitioners as had been recommended
The applicant complains that he was compelled to resume full time duties and workload with proper and appropriate consultation with treatment and assessing medical practitioners and in a manner consistent with their recommendations. I reject the applicant’s contentions in that regard. The evidence clearly demonstrates that the hours to be worked were identified after careful consideration of a range of factors including medical advice and the applicant’s wishes. The applicant had expressed a strong desire to return to full time hours as quickly as possible for both financial and personal reasons. In the meantime the AFP afforded him considerable latitude to ensure that he enjoyed a successful return to work. Initially he worked only day shift at the City station and was not required to work shift work as was the case with other officers. He attended work at hours outside regular hours upon his own volition. There was never any compulsion upon him to do so. Although hours were set it was clear that he was to take regular breaks as he needed them. He was not expected to work the hours set but the hours were set merely to enable the AFP to pay him a liveable wage pending his recovery. The AFP was under no obligation to do so but was clearly motivated by concern for the applicant’s welfare in making that decision. In any event the applicant did avail himself of the opportunity to take regular breaks and he never complained of excessive hours. He was given considerable support and assistance in his general return to work and ample opportunity to raise concerns. But for his unacceptable behaviour it could have been expected that there would have been a return to his former duties.
Working in a routine administrative role only briefly before being returned to much more demanding and stressful work without the AFP first consulting with treating and assessing medical practitioners as had been recommended
The applicant complained that he was too quickly progressed from basic roles to more demanding and stressful work and that the AFP failed to properly consult with treatment and assessing medical practitioners in progressing his case.
For the AFP it was contended that the relevant decision makers including Mr Cotton were of the opinion (based on Dr Lamberth’s advice) that at the relevant time the applicant did not suffer from any psychiatric or psychological condition and that the behaviour of the applicant was as a result of non medical factors. On that basis because the issues were behavioural the AFP did not seek further medical opinion. Furthermore the applicant appeared to be happy in his environment and was performing his duties to an acceptable standard. It follows that the AFP’s determination to progress his employment from routine to more demanding duties was appropriate and without need to engage medical advice. I do not regard this condition as having been unreasonable.
Working without any adjustment for the applicant’s particular circumstances
The applicant complains that among other things he was denied the right to use non standard equipment; was not awarded the status of Senior Constable; and sustained loss of property. These complaints had no basis in the context of the applicant’s return to work circumstances. A process existed for redress of uniform matters including the use of non standard equipment and that process had not been invoked or in turn its processes exhausted. Likewise in respect of the loss of property processes. The complaint concerning Senior Constable status was a matter which pertained to the applicant’s original employment and had no basis in the context of his alleged return to work difficulties. There was nothing unreasonable in the AFP’s dismissal of those complaints.
In summary I am satisfied that the conduct of the AFP in respect of each of the applicant’s complaint conditions was reasonable having regard to the circumstances of the case such that even if there had been discrimination on the ground of disability of the applicant by the respondent requiring him to comply with that condition no breach of section 6 arose.
Discrimination in employment
The applicant also contends that the return to work program and the suspension and the termination of his employment with the AFP constituted unlawful discrimination pursuant to section 15 of the DDA. In particular section 15(2)(c) provides that it is unlawful for an employer to discriminate against an employee on the grounds of the employee’s disability by dismissing the employee.
The AFP contends it has a defence to that complaint provided by subsection 4. Section 15(4) of the DDA relevantly provides:
“(4) Neither paragraph (1)(b) nor (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 the disability and the provision of which would impose an unjustifiable hardship on the employer.”
For reasons which were explored above I am satisfied that the evidence clearly demonstrates that the inherent requirements of the particular employment of the applicant required compliance with and an ability and desire to comply with, inter alia, Commissioner’s Order 2 of Professional Standards. That included an obligation to comply with expected professional standards and an obligation to follow reasonable directions by a person in authority. The applicant conceded in cross examination that he was subject to the professional standards that applied to his employment. In particular he acknowledged that he was subject to obligations regarding courtesy, respect, the need to act fairly and reasonably, the requirement to follow lawful directions given by a person in authority and the need to conduct himself in accordance with the respondents’ applicable standards of conduct. As determined above the evidence clearly demonstrates that the applicant did not carry out the inherent requirements of his particular employment. For instance his conduct and behaviour toward other AFP employees was conduct contrary to the AFP’s values and style as required by the Commissioner’s Order 2. Those matters were particularly addressed in correspondence addressed to the applicant by the respondent in its consideration of termination of employment notice and his termination of employment notice.[52]
Taking into account the applicant’s past training, qualifications, experience, relevant particular employment, the applicant’s performance as an employee and all other relevant factors, would the applicant, because of his disability, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the respondent
[52] Affidavit Alan Sean Luke Scott filed 16 April 2009, Annexures B and D
The unchallenged evidence of the AFP is that in order for the applicant to be retained the AFP would be required to provide constant and intensive one-on-one supervision of him in the workplace. As Commander Scott deposed, the resource implications of supervision of that kind and the impact it would have on the AFP’s ability to provide services to the community as well as the impact on those employees who were managing the applicant’s case was not a practical or justifiable solution in all of the circumstances. I agree with Commander Scott’s views on that matter. Generally I am satisfied on a review of the whole of the evidence that by October 2006 and that despite the applicant’s work history he had exhibited unacceptable work performance and was demonstrating the effects of a personality which made him unable to carry out the inherent requirements of his employment. It was clear that to have any prospect of carrying out those requirements he would require supervision on an almost one-on-one basis. I am satisfied the AFP could not reasonably provide this level of supervision having regard to its circumstances without it suffering undue hardship.
I am not satisfied the applicant has demonstrated any basis for claim against the respondent pursuant to section 15 of the DDA.
Conclusion
The applicant was an employee of the AFP. He suffered a non work related head injury. Following recovery from his physical injuries he was placed on a supervised return to work program designed by the AFP upon medical and occupational health advice. In the meantime the applicant protested about the AFP’s treatment of him and contended it discriminated against him because of disability suffered following his accident.
Whilst I am satisfied the applicant’s underlying behavioural characteristics were exacerbated because of his injuries the manner and tone of the applicant’s behaviour to other members of the AFP was entirely unacceptable. The applicant was given counselling and a number of warnings before ultimately being given a final show cause and dismissed.
The applicant claimed he was subject to direct and/or indirect discrimination in contravention of s5 and 6 of the DDA or discrimination in employment in contravention of s15 DDA.
The AFP’s treatment of the applicant throughout this process was no less favourable than the treatment a like person without a disability would have experienced. I am satisfied there was no direct discrimination by the AFP of the applicant.
Although the applicant was subject to a number of conditions on his return to work the applicant failed to adduce evidence of the inability of members of a comparator group to comply with the conditions. In any event I accept the conditions to have been reasonable in the circumstances.
The applicant has not demonstrated any case of indirect discrimination by the AFP against him in contravention of s6 DDA.
Finally I am not satisfied the applicant has demonstrated any discrimination by the AFP in its employment particularly when regard is had to the applicant’s past training, qualifications and experience.
In summary the application has failed and is dismissed.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: B Schmidt
Date: 24 February 2010
NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules to amend paragraph 3.
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