Green v Department of Family and Community Services - [2013] NSWADT 193

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Green v Department of Family and Community Services [2013] NSWADT 193
Hearing dates: 10 and 11 July 2013Written submissions closed 15 August 2013
Decision date: 27 August 2013
Jurisdiction: Equal Opportunity Division
Before: R J Wright SC, Judicial Member
J Schneeweiss, Non-Judicial Member
J McClelland, Non-Judicial Member
Decision:
The Tribunal orders:
The complaint be dismissed in whole.

Catchwords: Disability Discrimination - Employment - Direct Discrimination - Inherent Requirements - Unjustifiable Hardship
Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW)
Cases Cited: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221
Purvis v State of New South Wales (2003) 217 CLR 92
Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13
Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619
Haines v Leves (1987) 8 NSWLR 442
Collier v Austin Health [2011] VSC 344
Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67
X v The Commonwealth (1990) 200 CLR 177
Potts v Miller (1940) 64 CLR 282
Category: Principal judgment
Parties: Kate Sarah Green (Applicant)
Department of Family and Community Services (NSW) (Respondent)
Representation: Counsel
B Fogarty (Applicant)
A Britt (Respondent)
Inner City Legal Centre (Applicant)

File Number(s): 121126

reasons for decision

EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, Dr J Schneeweiss - Non-Judicial Member, J McClelland - Non-Judicial Member). In this matter, the applicant, Ms Green, alleges that she was unlawfully discriminated against on the ground of disability in relation to employment with the respondent, the New South Wales Department of Family and Community Services, under s 49D of the Anti-Discrimination Act1977 (NSW) (the ADA).

Ms Green's case can be summarised as follows:

(1) She applied for and was offered employment as a casual residential support worker with the Aging Disability & Home Care (ADHC) Division of the respondent;

(2) As a result of the information disclosed in the pre-placement health declaration completed by Ms Green, she was referred for a pre-employment health assessment by Dr Field;

(3) The respondent, in the light of Dr Field's report and other matters, withdrew the offer of employment to Ms Green;

(4) Dr Field's report included the opinion that Ms Green was fit for the duties of a disability support worker, but only in a position where she worked shifts when there was a supervisor present who would be able to supervise her work, for the first 6-12 months at least, depending on her performance.

These circumstances were initially claimed to give rise to three contraventions of the ADA:

(1) In requiring Ms Green to undergo the pre-employment health assessment by Dr Field, the respondent directly discriminated against her on the ground of disability in the arrangements it made for the purpose of determining who should be offered employment in contravention of s 49D(1)(a) - the Field Referral Claim;

(2) By withdrawing the offer of employment, the respondent directly discriminated against Ms Green on the ground of disability in determining who should be offered employment in contravention of s 49D(1)(b) - the Withdrawal of Offer Claim;

(3) By offering Ms Green employment only on the basis of supervised shifts for at least 6-12 months, the respondent directly discriminated against her on the ground of disability in the terms on which it offered employment in contravention of s 49D(1)(c) - the Offer on Terms Claim.

In her written submissions, however, Ms Green indicated that she no longer pressed the Offer on Terms Claim. Accordingly, the Tribunal will not deal with that claim.

The respondent's defence to the Field Referral Claim was in substance that referring Ms Green to Dr Field for a medical assessment did not involve any direct discrimination on the ground of disability and, in any event, this alleged contravention was not part of the complaint referred to the Tribunal by the President of the Anti Discrimination Board (the ADB) and should not be dealt with by the Tribunal.

Further, in relation to the Withdrawal of Offer Claim, the respondent denied that by withdrawing the offer it unlawfully discriminated directly against Ms Green on the ground of disability in contravention of s 49D(1)(a) or (b) because Ms Green was unable to carry out the inherent requirements of the position or was only able to carry out those requirements with the provision of services or facilities which would impose an unjustifiable hardship on it.

For the reasons given below, the Tribunal is not satisfied that either of Ms Green's remaining two claims of unlawful discrimination has been made out.

The Complaint

On 3 February 2012, Ms Green lodged a discrimination complaint form with the ADB. The ADB accepted the complaint and received further information from both Ms Green and the Respondent. A conciliation conference was held on 17 October 2012 that, however, proved unsuccessful. By letter dated 2 November 2012 Ms Green's solicitors requested the President of the ADB to refer the complaint to this Tribunal for decision.

In accordance with that request, the President referred the matter to the Tribunal under s 93C(b) of the ADA and the President's Summary of Complaint was filed on 14 November 2012. In that summary, the type of complaint was identified as "Disability discrimination" and the sections said to be relevant were ss 49A, 49B, 49C and 49D of the ADA. The period of the discrimination was identified as "October 2010 to 11 February 2011".

In accordance with the Tribunal's directions, points of claim and points of defence were filed by Ms Green and the respondent. Before the final hearing of the matter, the Tribunal granted Ms Green leave to file amended points of claim.

The Hearing and the Evidence

The final hearing of the matter occurred on 10 and 11 July 2013. At this hearing, an application was made for further leave to amend the applicant's points of claim in relation to the extent of the respondent's responsibility for the conduct of NSW Business Link Pty Ltd (Business Link), which undertook the relevant recruitment process on behalf of the respondent. In this regard, Mr Britt of counsel who appeared for the respondent formally conceded that conduct of Business Link generally and in referring Ms Green for assessment by Dr Field in particular was conduct of the respondent for the purposes of the ADA. As a result, Mr Fogarty of counsel who appeared for Ms Green did not press the application for further leave to amend the points of claim.

At the hearing, the President's Summary of Complaint and supporting documents were admitted into evidence. Ms Green relied upon her written statement and statements of Dr Greenway, her treating psychiatrist, and Ms Bouvy, the Operations Manager of Heartbeat Nursing Agency. In addition, Ms Green called Ms Linda Forrest as a witness who gave her evidence orally. Ms Forrest was a Human Resources Consultant with Business Link. The respondent relied upon the statements of Ms Dunworth, who was the Regional Manager for Accommodation and Respite Services for the Metro South region in ADHC, and of Dr Field, an Consultant Occupational and Environmental Physician. In addition, a number of documents, including some clinical notes, were admitted into evidence.

All of the witnesses were cross examined. In our view each of the witnesses was conscientiously attempting to tell the truth and give their recollection of what they perceived had occurred. We accept their evidence generally but note that we have particularly relied upon the facts recorded in the contemporaneous documents in reaching our conclusions. As the Tribunal understood it, there were no significant areas of factual dispute on the evidence.

At the end of the hearing, both parties sought leave to file written submissions to supplement the oral submissions already made. The Tribunal granted leave for this to occur and has received and taken into account those written submissions.

Background

Ms Green undertook an Enrolled Nurse Certificate Training Course in 1996/7 and for a number of years thereafter worked at various Nursing Homes and Hospitals. During 1999 and 2000, she completed an Enrolled Nurse Mental Health Nursing Course and then worked at Liverpool Hospital Mental Health Unit, Fairfield Hospital and the Psychiatric Ward of Manly Hospital until about 2007.

In the history which she gave to Dr Field and in her evidence Ms Green disclosed that she had suffered symptoms of depression since approximately 2000 (that is, 10 years prior to her examination by Dr Field). Her depression had been of gradual onset with no obvious precipitating stressors. She told Dr Field that she had had a "breakdown" and was admitted to hospital in 2001/2 and was treated for depression with medication and cognitive behavioural therapy in psychological counselling.

After seeing several psychiatrists, in 2003 she commenced seeing Dr Greenway who remained her treating psychiatrist until toward the end of 2011 when he ceased private practice. She commenced Lithium medication for her condition in about 2004 or 2005.

In about 2003 or 2004, Ms Green suffered a left wrist injury whilst at work at Fairfield Hospital but after 3 months she was able to return to pre-injury duties and she has not had any problems with her left wrist since that time. In 2005, while lifting a patient she suffered a right shoulder injury but returned to pre-injury duties within 6 months and does not have any ongoing problems with that shoulder.

In 2007 an incident occurred while Ms Green was working at Manly Hospital. Her evidence in her written statement was that she had been working with a patient in the Aged Care Ward who had Obsessive Compulsive Disorder. Ms Green had blocked a doorway to attempt to stop the patient showering as she had already showered multiple times that day. After an investigation, it was found that Ms Green had behaved improperly in the workplace using loud, verbally aggressive language and physically restraining a patient when it was not clinically warranted. In her history given to Dr Field she described what occurred during this same incident in slightly different terms. She said that while working as a psychiatric nurse she attempted to block the path of a patient who was attempting to abscond and a doctor who witnessed the incident made a complaint about her conduct. Ms Green was suspended on full pay for twelve months while the incident was investigated.

On 3 April 2008 the Impairment Panel of the Nurses and Midwives Board found that Ms Green should be classed as an 'Impaired Practitioner' and placed conditions on her nursing registration.

Eventually in about mid-2008, Ms Green's employment was terminated because she was told "there was no longer a job available for her".

Ms Green found these events surrounding her termination stressful and, after 5 days without sleep at about this time in 2008, she experienced a manic episode which was accompanied by psychotic symptoms for about 1 to 3 weeks. Dr Greenway diagnosed her as having bi-polar disorder at this time and eventually she was prescribed Zyprexa. As she came down from her manic episode, however, it evolved into an episode of depression and an anti-depressant, Cipramil, was added to her medication. As a result, Ms Green suffered more manic symptoms as her mood lifted and she was admitted to hospital in August 2008 for 6 weeks to stabilise her condition. During this time, Tegretol CR was added to her medication and she continued on Lithium.

It was also at about this time that Ms Green says that she requested that she be withdrawn from the Register of Nurses because she felt she was too unwell to work. On 1 December 2008 her nursing enrolment was cancelled because she did not pay the annual practising fee. On 28 may 2009, Ms Green applied to the Nurses and Midwives Board to have her registration as an Enrolled Nurse reinstated, believing she was now recovered from her ill health. On 12 October 2009 the Board reinstated her registration but subject to conditions, which conditions were removed in mid-2012 by the Board.

In January 2010, Ms Green developed Lithium toxicity and consequently the Lithium treatment ceased. By November 2010 she was stable on Tegretol CR as maintenance treatment and Zyprexa as needed with no anti-depressant medication. Throughout the period from 2008 to late 2010 Ms Green saw her treating psychiatrist with a degree of regularity, sometimes as often as every 3 weeks.

Application for Position with ADHC

In July 2010, Ms Green applied for a position with the Accommodation and Respite Services Division of ADHC as a casual Residential Support Worker (RSW).

At the relevant times ADHC provided support services to people with a disability, people who were aging and their carers throughout New South Wales and the Accommodation and Respite Services Division provided direct support services to people with a disability including running group homes for adults with a disability. These group homes usually included about 5 people living together. RSWs, who may also be referred to using the more general term Disability Support Workers (DSWs), would come to the group home and work shifts throughout the 24 hours of the day to support the residents. All of the people living in such homes required support and supervision and consequently, on all shifts, including night shifts, staff were required to be awake and actively attending to the residents in those homes. Further, the vast majority of the people who lived in group homes required assistance in many, if not all, domains of daily living including personal care, bathing, feeding and domestic support.

DSWs were often required to work on their own and independently support the people living in the group home and could not leave the home unless another staff member was there to support and supervise the residents.

A casual DSW could be required to work at short notice and at one of a large number of group homes depending on the need at the time. The work that a casual DSW might be required to undertake depended on the clients and their behaviours and physical abilities. It was also the case that a casual DSW, like other DSWs, might be required to work without supervision and, for a casual DSW, supervisors and team leaders would be likely to change from shift to shift.

Ms Green submitted her CV when she applied for the position as a casual RSW and was contacted by telephone in early August 2010 by Ms Myat of Business Link, which was retained by the respondent to carry out the recruitment process on the respondent's behalf. The document recording that conversation indicates that Ms Green was shortlisted for the position with ADHC on 4 August 2010.

In addition to her application to ADHC, on 9 August 2010 Ms Green also submitted an application and résumé in relation to a position as a Community Mental Health Support Worker (Full Time) with an organisation referred to during the hearing as the Richmond Fellowship.

On 10 August 2010, Ms Green was interviewed for the position with ADHC. The interview was by a panel and was organised and conducted by Business Link. The interview panel recommended Ms Green for the casual position as RSW with ADHC.

In September 2010, Ms Green returned to casual work in the role of carer/support worker especially for young people in the Young People in Residential Aged Care program with Heartbeat Nursing Agency. Ms Green has continued to work for Heartbeat Nursing Agency as a carer and subsequently as a nurse until early 2013.

Offer of Employment

By a letter dated 1 October 2010, Ms Myat wrote to Ms Green advising her that:

... your application for employment as a Casual Residential Support Worker has been successful.

Please find attached, a detailed letter of offer that outlines the salary and conditions that apply to casual employment, and information on how to formally accept the offer of casual employment.

I would like to take this opportunity to welcome you to the Agency.

...

The Tribunal did not have before it, however, the detailed letter of offer referred to in Ms Myat's letter. From what subsequently occurred and what was contained in ADHC's letter of 11 February 2011, we infer that the "information on how formally to accept the offer of casual employment" included the requirement to complete a "Pre-placement Health Declaration" and, if required, undertake a pre-placement medical assessment. Given the terms of the 11 February 2011 letter, we are prepared to assume that it contained a statement that any offer of employment with ADHC was conditional upon satisfactory pre-employment screening checks.

On 6 October 2010, the internal computer records of the Richmond Fellowship indicate that Ms Green's application for the Full Time Community Mental Health Support Worker with that organisation was noted as "shortlisted". From the records, it is not clear whether this shortlisting was communicated to Ms Green at the time or subsequently. Ms Green's evidence was that on about 1 October 2010, she received an offer of employment from the Richmond Fellowship. The Richmond Fellowship records do not indicate that any offer of employment was made. Nonetheless, on 10 October 2010, the status of Ms Green's application to the Richmond Fellowship was changed to "withdrawn" and we infer that Ms Green withdrew her application. She said in evidence that "the position at the Richmond Fellowship paid about two dollars less than the position at ADHC" and intimated that this was the reason for her withdrawing from the Richmond Fellowship process. We have some difficulty accepting this as the Richmond Fellowship position was a full time position whereas the position with ADHC was casual. As we understand it, a casual position might attract a nominally higher rate of pay per hour than a full time position, however, if all the benefits attaching to a full time position were taken into account, the full time position would be likely to be more attractive in terms of remuneration and benefits. If Ms Green had actually been seeking a full time rather than a casual position, it is difficult to understand why she would have withdrawn from the Richmond Fellowship process when she did, even in the light of the 1 October 2010 letter from Ms Myat. Furthermore, it appears that Ms Green was working for Heartbeat Nursing Agency at this time as well. Her evidence in cross examination suggested that if she had taken up the position with the Richmond Fellowship she would have ceased working for Heartbeat.

In addition, in her written evidence, Ms Green said:

On or about early October 2010 I refused an offer of casual employment from Richmond Fellowship. I refused this offer because I had accepted the position at ADHC. This caused me to miss out on several months of paid employment.

In the light of the information found in the Richmond Fellowship computer records, we do not accept that Ms Green was offered employment by that organisation rather than being shortlisted for a position. We do not accept that the position at the Richmond Fellowship was a casual, as opposed to a full time, position. Nor, in the light of her employment with the Heartbeat Nursing Agency at this time, do we accept that she missed out on several months paid employment by refusing any offer from the Richmond Fellowship and going ahead with the acceptance process in relation to the offer made by ADHC.

On 11 October 2010 Ms Green signed her Pre-placement Health Declaration for employment with ADHC and it was received on 13 October 2010 by Business Link. In that declaration, Ms Green quite properly provided the following responses to the questions asked:

Are you aware of any disability or pre-existing health condition which may affect your ability to carry out the full range of duties of the position for which you are applying" If yes, please specify:

Bipolar Disorder - Managed

Have you had any previous back, neck, shoulder, wrist or knee injury? If yes, please specify:

Wrist Injury - 2003 - resolved - no issues

Shoulder injury - 2004 - resolved - no issues

On 18 October 2010, Ms Green obtained a certificate from Dr Greenway which she provided to Business Link that same day. The certificate was on Dr Greenway's letterhead and said in full:

This is to certify that Ms Kate Green has been a patient of mine for 7 years. She a diagnosis of a bipolar affective disorder. It is my opinion that this does not prevent her from carrying out the functions of a disability support worker.

Yours faithfully

[signed C H Greenway] FRANZCP

Greenway

18.10.10

Dr Greenway accepted in cross examination that when he wrote this certificate he had not been given any specific description of what the duties and requirements were for a disability support worker.

In addition, Ms Green provided further information orally to Business Link concerning her health declaration. This further information was referred to in Business Link's letter of 20 October 2010 to Immex Green Square Medical Treatment Pty Ltd (Immex). In that letter Immex were requested to advise ADHC on Ms Green's ability to undertake the inherent requirements of a casual DSW role. To assist with the referral a position description for a Disability Services Worker was provided to Immex together with a physical requirements summary and the medical certificate.

As a result of the referral of Ms Green to Immex for a medical assessment, Ms Green was examined by Dr Catherine Field (on behalf of Immex) on 24 November 2010. Dr Field was and is a Consultant Occupational and Environmental Physician and a Fellow of the Australasian Faculty of Occupational and Environmental Medicine, Royal Australian College of Physicians. She is not a psychiatrist. In preparing her report, Dr Field had regard to the information provided by Business Link, the detailed history given by Ms Green, Dr Field's conversation with Dr Greenway and Dr Field's physical examination of Ms Green. Dr Field's report of 24 November 2010 contained the following conclusions:

DIAGNOSIS

1. Bipolar Disorder, which appears stable currently on medication, although there has been some lowering of Mr Green's mood lately apparently associated with other unrelated medication. However, this is being closely monitored by her specialist doctors. She seems to have good insight into her condition and seems to be compliant with her treatment.

2. Left Wrist Injury 2003/04, alleged capitate bone dislocation, resolved with normal physical examination today.

3. Right Shoulder Rotator Cuff Injury (probably partial tear) 2005, which appears to have resolved and with a normal shoulder examination today.

However, please note that I was unable to view the relevant investigations/scans of the wrist and shoulder to confirm these diagnoses, as Ms Green no longer has her scans.

OPINION

I have reviewed the position details for Disability Support Worker, which was provided. Ms Green's left wrist and right shoulder injuries appear to have resolved and the left wrist and right shoulder are normal on examination now. Thus from the perspective of her previous physical injuries, in my opinion Ms Green is fit to undertake the inherent requirements of the casual Disability Support Worker role with no restrictions.

In terms of her bipolar disorder and Asperger's Syndrome, both appear stable at this time and she appears to have good insight into her condition, which her psychiatrist Dr Greenaway [sic] confirmed when I contacted him on 25/11/10. He said she has improved significantly in the last two years and that, in his opinion, she could now attempt the duties of a casual Disability Support Worker. However he recognised my concern regarding the lack of supervision in such a casual role, and we agreed that the main issue regarding Ms Green's ability to undertake the inherent requirements of the casual Disability Support Worker role is whether the health and safety of clients, colleagues and/or Ms Green herself are likely to be put at risk at work if her mental state deteriorates.

Given that Ms Green was off work for approximately three years and has only just returned to the workforce in September this year; and that she was significantly unwell until relatively recently and that her mood has also been low recently due to other medication; I think that it would be prudent for her to commence work in a more supervised position initially and perhaps with a "probation period". She should continue to provide her employer with evidence of her continued fitness for work from her psychiatrist, in the form of whatever documentation is required by the Nursing Board. I also suggest that the employer requests her to provide documentation from the Nursing Board confirming the reinstatement of her conditional registration.

I therefore agree with Dr Greenaway that Ms Green is currently capable of performing the duties of a Disability Support Worker, if evidence is provided that the Nursing Board also deems her currently fit for nursing work. However if Ms Green is to work as a disability support worker then to minimise any potential risk to clients or colleagues from a deterioration in her mental state, I suggest a role where she will be working with reasonably close supervision; at least initially (for example for the first six to twelve months). During this time her psychiatrist can also monitor her for any aggravation of her mental health conditions due to the nature and conditions of the role. If she performs well at work with no significant problems related to her mental health issues, then she may be able to progress to work with less supervision later. However this would depend on feedback from her supervisors, and would be provided that her bipolar illness remains stable and that she remains compliant with treatment.

SUMMARY AND RECOMMENDATIONS

From a physical perspective, I believe Ms Green is fit for the inherent requirements of a casual Disability Support Worker role.

From a psychological perspective, in my opinion Ms Green is fit for the duties of a Disability Support Worker if documentation from the Nursing Board confirms her current conditional registration; but in a position where there is a considerable degree of adequate supervision initially; e.g. for the first six to twelve months at least, depending on her performance. She should only work on shifts where there is a supervisor present, who will be able to supervise her work. This is because of her recent symptoms of low mood and also because, although her bipolar disorder is now stable, it took some time to stabilise and she had been off work for some time until recently. In my opinion adequate supervision on returning to work would be prudent, in order to minimise any potential risk to clients or others if Ms Green becomes unwell. If her supervisors detect deterioration in her mental state at any time at work, she should be directed to take leave and to attend her treating health professionals for review, and not return to work until declared fit to do so by her psychiatrist.

In addition to the employer requesting Ms Green to provide documentation from the Nursing Board confirming the reinstatement of her registration, I suggest that she provides a letter or medical certificate from her psychiatrist on a regular basis advising of her continued fitness for work, in line with what the Nursing Board requires.

As a result of the conclusions in Dr Field's report, Ms Forrest, a Human Resources Consultant with Business Link, prepared a submission to the Regional Director of ADHC concerning Ms Green dated 21 December 2010 which was endorsed by ADHC's regional manager, Ms Dunworth, on 11 January 2011. The conclusions reached in that submission were:

CURRENT SITUATION

...

After careful consideration of the recommendations of the health assessment and the adjustments required to employ Ms Green; it has been determined that in the role of DSW it is not possible to provide the level of direct supervision on all shifts, that Dr Field indicates Ms Green requires to under the role of casual DSW. A DSW may be required to work without the level of constant and immediate supervision that Ms Green requires.

CONTENTIOUS ISSUES

This matter could be legally challenged by Ms Green.

After some internal questioning and consideration of these issues, Ms Dunworth wrote a note to the Regional Manager, Mr Peter Gardiner, dated 2 February 2011 which stated:

We made verbal offer + letter of offer. Then she declared health issues.

We referred her for health asst & Dr recommends she could work supervised at all times for 6-12 months.

This is an adjustment we cannot reasonably make for a casual DSW.

If you support I will call her & Linda [Ms Forrest] is drafting a letter for you to sign.

This approach received Mr Gardiner's support.

What would have been involved in making such an adjustment to provide supervision for Ms Green as recommended by Dr Field was explained by Ms Dunworth in evidence. On the basis of that evidence, the Tribunal is satisfied that a casual DSW in the relevant position with ADHC might be called in at short notice to fill a shift at whichever group home required the shift to be filled. There might or might not be another employee of ADHC at that home who could supervise the casual DSW on any particular shift they were called in to fill. As a result, there was no certainty that a casual DSW would be working consistently at one location, with one group of persons with disabilities or with a supervisor. Accordingly, if Ms Green were to be supervised as recommended by Dr Field, this would in effect require ADHC to ensure that on every shift that Ms Green worked there was also employed at the group home in question another person capable of adequately supervising her. Each group home had a budget of staff hours based upon the needs of the people who lived in that home and those needs did not always require there to be at least two ADHC employees in the group home on any shift. It was not uncommon for DSWs in group homes to work for periods (often entire shifts of 8 or 10 hours) alone and unsupervised. We also accept that there was no scope within the budget for each group home for ADHC to employ an additional staff member simply to supervise a DSW who required a supervisor to be present.

Withdrawal of Offer

On about 10 or 11 February 2011, Ms Dunworth telephoned Ms Green and informed her that the offer of employment was being withdrawn. Ms Green raised the question of whether it was appropriate for ADHC to prefer the opinion of a general practitioner over that of a psychiatrist with over 30 years experience. Whilst this is perhaps an understandable reaction on Ms Green's part, she not having had the opportunity to consider Dr Field's report or Dr Field's conversation with Dr Greenway, we do not accept that ADHC was preferring Dr Field's opinion over that of Dr Greenway. The doctors were not putting forward opposed views. Rather, Dr Field was considering the position from a wider perspective than that which Dr Greenway had been asked to address.

On 11 February 2011 Mr Gardiner signed a letter to Ms Green which she received shortly after and which advised in part:

ADHC management and staff have an Occupational Health and Safety duty of care to ensure the health, safety and well being of our employees and clients, a responsibility that is taken most seriously. After careful consideration of the recommendations from IMMEX, I wish to advise that ADHC is unable to provide with required level of support and adjustments that you require in order for you to safely undertake the role of Disability Support Worker. I therefore advise that the offer of employment to the position of Disability Support Worker (Casual) has been withdrawn.

Apart from the conversation with Ms Dunworth on about 10 or 11 February 2011, Ms Green was not given the opportunity to respond to Dr Field's report or recommendations.

In accordance with the letter of Mr Gardiner, Ms Green did not take up employment with ADHC.

Ms Green's Claims of Discrimination

As noted above, Ms Green now claims that in these circumstances:

(1) the respondent, by requiring Ms Green to undergo the pre-employment health assessment by Dr Field, directly discriminated against her on the ground of disability in the arrangements it made for the purpose of determining who should be offered employment in contravention of s.49D(1)(a) - the Field Referral Claim;

(2) the respondent, by withdrawing the offer of employment, directly discriminated against Ms Green on the ground of disability in determining who should be offered employment in contravention of s.49D(1)(b) - the Withdrawal of Offer Claim.

The respondent's defence to the Field Referral Claim was in substance that referring Ms Green to Dr Field for a medical assessment did not involve any direct discrimination on the ground of disability and, in any event, this alleged contravention was not part of the complaint referred to the Tribunal and should not be dealt with by the Tribunal.

In relation to the Withdrawal of Offer claim, the respondent relied upon s 49D(4) as rendering its conduct lawful on the grounds that Ms Green was unable to carry out the inherent requirements of the position or was only able to carry out those requirements with the provision of services or facilities which would impose an unjustifiable hardship on the respondent.

The Relevant Statutory Provisions

Section 49D relevantly provides:

(1)It is unlawful for an employer to discriminate against a person on the ground of disability:

(a)in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b)in determining who should be offered employment, or

(c)in the terms on which the employer offers employment.

...

(3)Subsections (1) and (2) do not apply to employment:

(a)for the purposes of a private household, or

(b)where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or

(c)by a private educational authority.

(4)Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a)would be unable to carry out the inherent requirements of the particular employment, or

(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

....

What constitutes "unjustifiable hardship" is addressed in s 49C which provides:

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case 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 of a person concerned, and

(c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

"Employment" is not defined in the ADA except to the extent that s 4(1) provides that "employment" includes "work under a contract for services".

"Disability" is defined in s 4(1) of the ADA to mean:

(a)total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b)the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c)the malfunction, malformation or disfigurement of a part of a person's body, or

(d)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The concept of disability is expanded in s 49A of the ADA as follows:

A reference in this Part to a person's disability is a reference to a disability:

(a)that a person has, or

(b)that a person is thought to have (whether or not the person in fact has the disability), or

(c)that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

What constitutes "discrimination" for the purposes of s 49D is set out in s 49B of the ADA. The relevant provisions of that section include:

(1)A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a)treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

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

(2)For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

Was Ms Green Discriminated Against Under S 49B(1)?

In determining whether Ms Green was unlawfully discriminated against as alleged in this case the Tribunal must consider the two preliminary issues:

(1) did Ms Green have a "disability" within ss 49D and 49B? and

(2) was the respondent an "employer" within s 49D?

If so, the Tribunal will then consider each of the Field Referral Claim and the Withdrawal of Offer Claim separately.

Did Ms Green Have a Disability?

It was accepted by both sides that Ms Green had at all relevant times bi-polar affective disorder. That disorder had affected Ms Green's thought processes, emotions or judgment and resulted in disturbed behaviour and was capable of doing so again if not properly managed by medication and treatment. As a result, the Tribunal finds that Ms Green had a disability within the meaning of ss 49D and 49B, having regard to the definition of "disability" in paragraph (e) of s 4(1) of the ADA.

Was the Respondent an Employer?

It was not in dispute that the respondent employed staff, including DSWs in its ADHC division. Furthermore, the respondent conceded that Ms Green's claims relevantly related to employment.

Accordingly, the Tribunal concludes that the respondent was an employer for the purposes of s 49D of the ADA and that the claims fall to be dealt with under that section.

The Field Referral Claim

In relation to the Field Referral Claim the Tribunal must consider:

(1) Did the respondent discriminate against Ms Green on the ground of her disability within s 49B(1)(a) by referring her to Dr Field for a medical assessment?

(2) If so, did referring Ms Green to Dr Field constitute discrimination in the arrangements made for determining who should be offered employment within s 49D(1)(a)?

Before turning to those issues, however, it is appropriate for the Tribunal to consider the respondent's objection that this Field Referral Claim was not part of the complaint referred by the President of the ADB to the Tribunal and accordingly it cannot or should not be dealt with by the Tribunal.

The resolution of this objection to the Field Referral Claim depends on identifying what is the subject matter of this proceeding before the Tribunal. This turns in part upon the proper construction of the ADA and the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act).

The Tribunal's jurisdiction to determine matters arising under the ADA depends on various provisions including ss 36, 37 and 45 of the ADT Act which provide:

36 What are the principal kinds of decisions that the Tribunal may make?

(1)The Tribunal may:

(a)make original decisions, and

(b)review reviewable decisions.

(2)This section does not limit any other function of the Tribunal.

Note: An original decision is a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Division 3 of Part 9 of the Anti-Discrimination Act 1977 . Other examples are mentioned in Schedule 2.

37 Conferral of jurisdiction to make original decisions

The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.

...

45 Tribunal has the functions conferred or imposed by or under enactment

In determining an application for an original decision, the Tribunal has such functions as are conferred or imposed on the Tribunal by or under the enactment under which the application is brought.

The ADA confers the power to make original decisions on the Tribunal under Division 3 of Part 9 (as indicated by the statutory note to s 36 of the ADT Act quoted above) which includes:

95 Referral of complaints to Tribunal

(1)A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C.

(2)The Minister may refer any matter to the Tribunal as a complaint.

(3)For the purposes of the AdministrativeDecisions Tribunal Act 1997 , the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.

...

97 Parties to proceedings before Tribunal

(1)Despite section 67 (1) of the Administrative Decisions Tribunal Act1997 , the parties to proceedings before the Tribunal relating to a complaint are:

(a)the complainant who, for the purposes of the Administrative Decisions Tribunal Act1997 , is taken to be the applicant, and

(b)the respondent, and

(c)any other person who has been made a party to the proceedings in accordance with section 67 (4) of the AdministrativeDecisions Tribunal Act 1997 , and

(d)if the Attorney General intervenes in the proceedings under section 69 of the Administrative Decisions TribunalAct 1997 , the Attorney General.

(2)The Tribunal may substitute a complainant or respondent if the Tribunal is of the opinion that the other parties to the proceedings will not be prejudiced by the substitution.

(3)The Tribunal may remove or agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with the complaint.

...

102 Tribunal may dismiss complaint

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

...

108 Order or other decision of Tribunal

(1)In proceedings relating to a complaint, the Tribunal may:

(a)dismiss the complaint in whole or in part, or

(b)find the complaint substantiated in whole or in part.

(2)If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a)except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c)except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d)order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e)in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f)make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g)decline to take any further action in the matter.

(3)An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

(4)The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.

(5)In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

(6)If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.

(7)If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

From these provisions it follows that the application for original decision is the "complaint" referred to the Tribunal by the President of the ADB under s 90B, 93A, 93B or 93C of the ADA - s 95(3) of the ADA. The complainant becomes the applicant in the Tribunal - s 97(1)(a) of the ADA. The decision making powers of the Tribunal in relation to such a "complaint" include those set out in ss 102 and 108 of the ADA. In the present case, as noted above, Ms Green's complaint was referred to the Tribunal by the President under s 93C(b) of the ADA.

In s 87 of the ADA "complaint" is defined as follows:

"complaint" means a complaint made under section 87A and includes a matter referred to the Tribunal as a complaint under section 95 (2).

Section 87A deals primarily with who may make a complaint and provides:

(1)A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by any of the following:

(a)one or more persons:

(i)on his, her or their own behalf, or

(ii)on his, her or their own behalf as well as on behalf of another person or persons,

(b)a parent or guardian of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability),

(c)a representative body on behalf of a named person or persons, subject to section 87C,

(d)an agent of any of the persons referred to in paragraph (a), (b) or (c).

(2)Nothing in this Division prevents a person from making a complaint (not being a representative complaint) even though the conduct in respect of which the complaint is made is also conduct in respect of which a representative complaint has been made.

(3)In this section, "guardian" has the same meaning as it has in the Guardianship Act1987.

Ms Green made the complaint on her own behalf and not on behalf of others. As to the form and contents of a complaint, ss 89 and 94A of the ADA provide:

89 Form and content of complaints

(1)A complaint is to be in writing but does not have to take any particular form.

(2)A complaint, as made, need not demonstrate a prima facie case.

94A Form of complaint to be referred to Tribunal

(1)If a complaint is referred to the Tribunal under this Division, the complaint is to comprise:

(a)the original complaint lodged with the President, and

(b)any amendment made pursuant to section 91C, and

(c)any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations.

(2)A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint.

Thus, when a "complaint" is referred to the Tribunal it comprises the documents listed in s 94A(1) and in particular it includes not only the original complaint lodged but also any other documents that in the President's opinion "help to identify the subject matter of the complaint or otherwise contain an allegation of a contravention of a provision" of the ADA.

The fact that, under s 94A(2), the complaint referred to the Tribunal is to be accompanied by what is described as "a report relating to any investigation by the President of the complaint" does not mean that the President's Report or Summary of Complaint determines what is the subject matter of the complaint. Indeed, the wording of s 94A(2) strongly suggests that the President's Summary of Complaint is not part of the "complaint" referred to the Tribunal but merely accompanies it.

Section 94A and other relevant provisions in Division 9 Parts 1, 2 and 3 of the ADA were introduced only in 2004 by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW). Nonetheless, the general principle stated in decisions such as Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 can be accepted, subject to the changes effected by the 2004 amending Act. In Fricke, the Tribunal held:

18Nevertheless, the scope of the complaint is confined to the matters in the complaint and as noted by the Tribunal in Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186 at para. 40:

"The statute establishing the Tribunal, the ADT Act, circumscribes its jurisdiction. The Tribunal has no power to enquire at large into matters which take its interest."

19The Tribunal receives its jurisdiction from the complaint referred to it by the Board under Section 94(1) of the Act. The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the President's Report. Authority for this settled proposition appears in Dee v Commissioner of Police & Anor 2003 NSW ADT 217, at para 13.

20In Salama v Qantas Airways Limited (2002) NSW ADT 119 at para. 16, the Tribunal confirms that the referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred by the President.

Thus, the bases of complaint in respect of which the Tribunal has jurisdiction are determined by the subject matter of the original complaint and any amended complaint to the ADB (provided under s 94A(1)(a) and (b)) and of any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations (provided under s 94A(1)(c)). It is these documents that comprise the "complaint" referred by the President.

Consequently, even if a particular claim of discrimination is not articulated in the original complaint form lodged with the ADB, it does not follow that this is not part of the complaint over which the Tribunal has jurisdiction. If the subject matter of the claim is identified in "the original complaint lodged with the President" or the "other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of [the ADA]" which form part of the complaint referred to the Tribunal as a result of s 94A(1)(a) and (c) respectively, then the Tribunal will have jurisdiction to determine this aspect of the complaint.

Although not articulated as a separate claim of discrimination in her original complaint to the ADB, Ms Green's referral to Dr Field is referred to in some detail in that document and a copy of the letter referring Ms Green to Dr Field and Dr Field's report on her medical assessment of Ms Green are attached to the original complaint form. In its response to the ADB dated 19 March 2012, the respondent referred to the Health Declaration provided by Ms Green and noted that this was required "in accordance with NSW Government policy" and a copy of the policy was attached. It was further stated by the respondent that:

Ms Green has not been treated any differently from any other person seeking employment with NSW Government.

Following Ms Green providing her Health Declaration, a medical assessment was required in accordance with the policy. A copy of Ms Green's medical assessment is attached.

It should be noted here, in favour of the respondent's position, that in the response made on Ms Green's behalf in the Inner City Legal Centre's letter of 10 April 2012 to the respondent's letter of 19 March 2012, it is said:

In the second paragraph, the Respondent claims that Ms Green was treated in the same way as all other applicants for employment positions with it. This may well be so (and, ultimately a matter the Respondent may need to prove), however, the essence of the complaint is not that the same process was applied to her, but:

a.what information was taken into account or not taken into account in that process;

b.what analysis occurred in that process;

c.how certain conclusions were reached in that process, and

d.the qualifications and expertise of persons involved in the conclusions drawn and recommendations and decisions made in that process.

This response on Ms Green's behalf does suggest that she is not complaining about the fact that she was referred to Dr Field but rather about whether Dr Field's conclusions should have been accepted.

Nonetheless, given the nature and purpose of the ADA, the importance of dealing with the substance of the complaints and not letting complaints be defeated solely on technical or formal grounds and the requirements of 73(3) of the ADT Act, the Tribunal is not persuaded that the "subject matter of the complaint" referred to the Tribunal by the President of the ADB in this matter did not include Ms Green's being referred to Dr Field for a medical assessment. We are also of the view that reaching this conclusion does not involve any significant prejudice to the respondent. The Field Referral Claim was clearly articulated in paragraphs 47 and 48 of the original points of claim filed on Ms Green's behalf and it was not suggested by the respondent that it was not in a position to meet that claim before the Tribunal, whether because that Claim was not identified as discriminatory conduct in the original complaint to the ADB or otherwise.

For these reasons we do not accept that the Tribunal should refuse to deal with the Field Referral Claim or should dismiss the complaint in so far as that claim is relied upon merely upon the ground that "[t]his alleged contravention was not part of the Complaint to the President."

The Tribunal now turns to consider whether the respondent discriminated against Ms Green on the ground of her disability within s 49B(1)(a) by referring her to Dr Field for a medical assessment.

In order to establish direct discrimination falling with s 49B(1)(a) of the ADA in the present case, it must be established that:

(1) the respondent treated Ms Green less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treated or would have treated a person who did not have Ms Green's disability - the differential treatment issue; and

(2) that differential treatment was on the ground of her disability - the causation issue.

Where there exists an actual person whose treatment can be compared with that of the complainant, these questions can be and should be dealt with sequentially - Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. Where, however, there is no actual comparator, there is a problem because it is difficult, if not impossible in some cases, to determine how another, hypothetical employee would have been treated without first determining why the complainant was treated as he or she was. Thus, where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of disability" can be addressed as part of the same reasoning exercise - see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65] and Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 at [78].

In order to determine the differential treatment issue, it is necessary that a comparison be made between the way in which Ms Green was treated and the way in which someone who did not have "that disability" would have been treated in the same or not materially different circumstances. Consequently, there are three elements to are required to be considered. First, what was the relevant disability from which Ms Green suffered. Secondly, Ms Green's circumstances must be identified and then it must be determined which of those circumstances have to be taken into account in determining how another person without Ms Green's disability would have been treated. Thirdly, it is necessary to address what treatment Ms Green received and what treatment the comparator would have received.

In the present case, "that disability" refers to Ms Green's bi-polar disorder.

As to the circumstances that must be taken into account, the High Court's decision in Purvis v State of New South Wales (2003) 217 CLR 92 gives some assistance as the language of the Federal statute applicable in that case was not different in presently material respects from the language of the ADA. In that case, Gummow, Hayne and Heydon JJ held at [224]:

The circumstances referred to in s 5(1) [relevantly equivalent to s 49B(1)(a) of the ADA] are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.

Further at [229], their Honours also held that the section equivalent to s 49B(1)(a) "requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person".

As the High Court's decision in Purvis made clear at [230], the circumstances that must be taken into account in determining how a person without Ms Green's disability would have been treated do not exclude all of the circumstances that arise out of, or are the effect or consequence of, Ms Green's having a disability. At [230] the High Court held that the construction adopted by the Court: "embraces the importance of indentifying (as part of the relevant circumstances) all the effects and consequences of the disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?"

Applying these principles to the present case, the objective features that surrounded Ms Green's treatment by the Respondent can be summarised as including at least being a person applying for a casual DSW position with ADHC in the latter half of 2010 with the same or similar qualifications, work history and background as Ms Green and having the same previous wrist and shoulder injuries as Ms Green but without Ms Green's bi-polar disorder.

As to the question of whether Ms Green was treated "less favourably", this requires a comparison of Ms Green's treatment with how the comparator would have been treated in the circumstances and a determination of whether Ms Green's treatment was less beneficial or advantageous than that which the comparator would have received - Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 at 19 and Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619 at [36].

As Kirby P held in Haines v Leves (1987) 8 NSWLR 442 at 471:

The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; ; [1979] 1 All ER 474 (Eng CA) .

In Ms Green's case, she completed the Pre-placement Medical Declaration and disclosed the existence of not only her bi-polar disorder but also her previous wrist and shoulder injuries. As a consequence of those disclosures she was referred for a pre-placement medical assessment by Dr Field.

It appears to the Tribunal that the respondent was following a process or policy designed to ensure that its potential employees, its own employees and those for whom it provided care were all protected from problems that might arise out of the inability, for medical reasons, of persons who became an employee to perform their duties safely and without risk of injury to themselves or others. The Tribunal is satisfied that if another applicant for a casual DSW position had completed a Pre-placement Medical Declaration and disclosed the existence of previous wrist and shoulder injuries, even if that person did not have any other disability, that applicant would also have been referred for a pre-placement medical assessment. The Tribunal also finds that if another applicant had disclosed not only previous wrist and shoulder injuries but also another disability (other than bi-polar disorder) that could have affected in some way the person's ability to perform the duties as a casual DSW, that person would also have been referred for a pre-placement medical assessment.

In other words, the Tribunal finds that there was no relevant differential treatment of Ms Green by her being referred for a medical assessment by Dr Field. Having reached this conclusion, it may not be strictly necessary for the Tribunal to consider the remaining issues in relation to the Field Referral Claim. Nonetheless, in case we are wrong, we shall address these remaining issues briefly.

The question of whether differential or less favourable treatment was "on the ground of" disability requires the characterisation of the conduct in terms of its causation - Haines v Leves (1987) 8 NSWLR 442 at 471.

In this context it can be noted that s 4A of the ADA provides:

If:

(a)an act is done for 2 or more reasons, and

(b)one of the reasons consists of unlawful discrimination under this Act against 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.

Notwithstanding the terms of s 4A, the comments of Kirby P in Haines v Leves (1987) 8 NSWLR 442 at 471 sound a useful reminder of the difficulty involved in this area of the law:

Most activities of life have multiple causes. The assignment of the ìgroundî of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the ìgroundsî is a difficult one which calls for judgment and discernment. Thus in Boehringer, a married female complained F that she had been discriminated against on the ground of marital status. The employer contended that the decision not to employ her was based on the ground of the possibility that she might disclose (whether by inadvertance or otherwise) confidential information to her husband who was employed by a competitor. The tribunal upheld the complaint. This Court (Moffitt P, Mahoney and Priestley JJA) unanimously allowed the appeal and dismissed the complaint.

Even if, contrary to what we have found, Ms Green's treatment did amount to differential treatment, we are not satisfied that this was on the ground of Ms Green's bi-polar disorder. Any medical circumstance that might give rise to concern about an applicant's ability to perform the duties of a casual DSW would have led to the same type of treatment as Ms Green received. Ms Green's bi-polar disorder and any concomitant disability were not the real or genuine cause of her being treated differently from others, if that had occurred.

Accordingly, we find that the respondent did not discriminate against Ms Green on the ground of disability by referring her to Dr Field for a medical assessment within s 49B(1) of the ADA.

Finally, if, contrary to that finding, we had concluded that the respondent had discriminated against Ms Green by referring her to Dr Field in the circumstances, we would have concluded that such conduct fell within s 49D(1)(a) being discrimination in the arrangements made for determining who should be offered employment.

Conclusion on the Field Referral Claim

It follows from our conclusions above that the complaint in so far as it relates to the Field Referral Claim should be dismissed.

The Withdrawal of Offer Claim

In relation to the Withdrawal of Offer Claim the Tribunal must consider:

(1) whether the respondent discriminated against Ms Green on the ground of her disability within s 49B(1)(a) by withdrawing its offer of employment;

(2) if so, whether that withdrawal constituted discrimination in determining who should be offered employment within s 49D(1)(b);

(3) if so, whether the conduct was nonetheless lawful because Ms Green in order to carry out the inherent requirements of the position, required services or facilities that were not required by persons without her disability and the provision of which would have imposed an unjustifiable hardship on the respondent within s 49D(4) and s 49C.

Discrimination on the Ground of Disability

As has been discussed above, in order to establish discrimination on the ground of disability under s 49B(1)(a) in relation to this claim, Ms Green must show that she received differential treatment and this was on the ground of her disability, namely bi-polar disorder.

Applying the principles set out above, the objective features that surrounded Ms Green's treatment by the Respondent for the purposes of the Withdrawal of Offer Claim can be summarised as including at least being an applicant who had been offered a casual DSW position with ADHC and been referred for a medical assessment because of some disclosure of a disability on the Pre-placement Health Declaration but without Ms Green's bi-polar disorder. Approaching the matter in this way is consistent with the decision of the Victorian Supreme Court concerning equivalent Victorian legislation in Collier v Austin Health [2011] VSC 344, see for example at [63] and [104].

As to differential treatment, on the facts before the Tribunal it is clear that Ms Green's offer of employment was withdrawn because of her bi-polar disorder in the light of Dr Field's assessment and ADHC's decision as to whether it could make any necessary adjustments. How would the respondent have treated another applicant for a casual DSW position who had been offered such a position and had undergone a pre-placement medical assessment but who did not have Ms Green's disability? The Tribunal is satisfied that many such applicants would not have had their offers of employment withdrawn. This would have included not only those whose disabilities did not interfere with their ability to perform the inherent requirements of the position but also those for whom appropriate adjustments could be made without undue hardship.

On this basis, the Tribunal concludes that there was differential treatment of Ms Green as a result of her offer of employment being withdrawn.

The question of whether differential or less favourable treatment was "on the ground of" disability requires the characterisation of the conduct in terms of its causation. Because the Tribunal was faced with a hypothetical comparator, this issue has already been touched upon in considering whether there was differential treatment, in accordance with Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65] and Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 at [78], as referred to above.

Having regard to the reasons of the respondent for withdrawing the offer to Ms Green as set out in the submission and notes referred to above, we are satisfied that the offer was withdrawn because of, or on the ground of, Ms Green's bi-polar disorder. The causal link between Ms Green's bi-polar disorder and the withdrawal of the offer was real.

Accordingly, we find that the respondent did discriminate against Ms Green on the ground of disability by withdrawing its offer of employment, within s 49B(1)(a) of the ADA.

Discrimination within s 49D(1)

Turning now to the question of whether the respondent's conduct fell within s 49D(1), it can be noted that discriminating against a person on the ground of disability "in determining who should be offered employment" should not be construed narrowly. Offering employment to an applicant for a position and then withdrawing that offer appears to us to be part of the process of determining who should be offered employment in that position. Determining to withdraw and withdrawing an offer of employment previously made is, in substance and for present purposes, no different from determining not to offer the position to the applicant in the first place. Accordingly, we conclude that by withdrawing the offer of employment made to Ms Green the respondent engaged in conduct which fell within s 49D(1)(b) being disability discrimination in determining who should be offered employment.

Unless the respondent can bring itself within the exception provided in s 49D(4), its conduct will be unlawful.

Inherent Requirements and Unjustifiable Hardship

Section 49D(4) establishes a defence which is available if it is otherwise found that a person has contravened s 49D(1)(b). In so far as it is relevant to the present case, the defence applies:

if taking into account the person's past training, qualifications and experience relevant to the particular employment ... and all other relevant factors that it is reasonable to take into account, the person because of ... her disability:

(a)would be unable to carry out the inherent requirements of the particular employment, or

(b)would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

In considering what constitutes "unjustifiable hardship", the Tribunal is required under s 49C to take into account "all relevant circumstances" 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 of a person concerned, and

(c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

By operation of s 104 of the ADA the respondent bears the onus of proof in relation to this defence. That section provides:

Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.

The Tribunal considered the defence under s 49D(4) in Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 and it is worthwhile setting out that consideration at some length because of its comprehensiveness and usefulness. The Tribunal held:

30There is an equivalent provision to s 49D(4) of the NSW Act in the Commonwealth legislation which deals with discrimination on the ground of disability, the Disability Discrimination Act 1992. That equivalent, s 15(4) of the Disability Discrimination Act 1992, was considered at length by the High Court in X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177. The statements made by the High Court in that case concerning s 15(4) of the Commonwealth Act are clearly binding upon us when considering the operation of s 49D(4) of the NSW Act. Not only is the wording of s 49D(4) of the NSW Act the same as that contained in s 15(4) of the Commonwealth Act, but the provisions in the Commonwealth Act to which s 15(4) provides an exception, namely sections 15(1)(b) and 15(2)(c), are effectively the same as those in the NSW Act to which s 49D(4) provides an exception, namely sections 49D(1)(b) and 49D(2)(c).

31This state of affairs did not come about by accident, or as a result of the drafters of the NSW Act informally 'borrowing' the language used in a similar statute in another jurisdiction. Section 49D was inserted into the Act in 1994 by the Anti-Discrimination (Amendment) Act1994. In his Second Reading Speech to the Legislative Council the then Attorney General, the Hon JP Hannaford MLC, stated when introducing the Bill that "...the Government has taken the opportunity to redraft the provisions of the Act to achieve, whenever possible, consistency with the provisions of the Commonwealth Disability Discrimination Act 1992 which came into effect on 1 March 1993". (Vol 241 NSW Parliamentary Debates (Legislative Council) 4 May 1994, at p 1828).

...

35As we have observed, the operation of the 'inherent requirements' defence was explained by members of the High Court in X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177. In that case Gummow and Hayne JJ delivered a joint judgment with which Gleeson CJ and Callinan J separately recorded agreement. These four justices formed the majority which dismissed X's appeal to the High Court from a decision of the Full Court of the Federal Court. Kirby J dissented. McHugh J effectively agreed with the majority's interpretation of the key provisions in the Disability Discrimination Act 1992. Whilst McHugh J did not advance an interpretation of the 'inherent requirements' defence which departed from the majority view in any way which is of relevance to this case, he disagreed with the four majority justices about the outcome of the appeal. The effect of the majority decision was that the case was remitted to the Human Rights and Equal Opportunity Commission to be re-heard in accordance with the reasons given by the Full Court of the Federal Court. Because McHugh J disagreed with some of the statements made by members of the Full Court of the Federal Court concerning the issues which required resolution by the Commission he preferred an outcome which would have required the Human Rights and Equal Opportunity Commission to re-hear the matter in accordance with his reasons for decision.

36McHugh J engaged in the most comprehensive analysis of the 'inherent requirements' defence. Many of McHugh J's statements about the operation of that defence were expressly or impliedly supported by a majority of the Court. The following statements by McHugh J [1999] HCA 63; (200 CLR 177 at 190) concerning s 15(4) of the Disability Discrimination Act 1992 were acknowledged with approval by Gummow and Hayne JJ (at 208) and consequently appear to have commanded majority support:

[39]Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.

[40]If s 15(4)(a) provided a defence independently of s 15(4)(b), the employer could lawfully discriminate against an employee even though the employee could carry out the inherent requirements of the particular employment once he or she was provided with services or facilities the provision of which imposed no undue hardship on the employer.

37In Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 at [89] to [93] an Appeal Panel of this Tribunal explained its understanding of the proper approach to a case in which the 'inherent requirements' defence is raised:

[89]Thus, as the Tribunal pointed out in Coleman v Commissioner of Police [2001] NSWADT 34 at paragraph 40, "it is necessary for an employer to consider not only whether a person with a disability is able to carry out the inherent requirements of a particular job without assistance, but also whether that person may be able to carry out the inherent requirements with a level of assistance which does not impose an unjustifiable hardship on the employer". In order to undertake this analysis, and thus fall within the exception created by section 49D(4), an employer must do at least two, and possibly three, things when considering a job application by a person with a disability. First, the employer must determine the inherent requirements of the particular position in question. Secondly, the employer must determine whether the applicant with a disability is able to perform those inherent requirements without assistance. Thirdly, if the second issue results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements of the position with a level of assistance which does not impose an unjustifiable hardship on the employer.

[90]In the first instance it is a matter for the employer to determine the inherent requirements of the position in question. Ultimately, however, it is a matter for the Tribunal in a litigated complaint. The proper process was described by McHugh J in X v Commonwealth of Australia [1999] HCA 63; (2000) 74 ALJR 176 at 182:

[36]What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business...

[37]Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.

[91]The reference in the last sentence to it being a matter in the end for "the Commission" to determine whether a requirement is inherent in a particular employment is a reference to the function previously exercised by the Human Rights and Equal Opportunity Commission in conducting inquiries into complaints lodged under the Disability Discrimination Act 1992. Constitutional considerations aside, that function was similar to the one which is exercised by this Tribunal in conducting inquiries under the NSW Act.

[92]Consequently, it was ultimately a matter for the Tribunal to determine what were the inherent requirements of the position for which Mr Maxwell had applied. Thus there is no substance to Ms Anderson's argument that the Tribunal erred in law by substituting its view of the inherent requirements of the position for that of the Commissioner when, by virtue of section 31(1) of the Correctional Centres Act 1952, the Commissioner was entitled to determine "the duties of correctional officers of the various classes". The Commissioner was obliged to exercise the power granted to him by section 31(1) of the Correctional Centres Act 1952 in accordance with the general law (see McHugh J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 413), which included the disability discrimination provisions of the Act.

[93]The Tribunal was obliged to objectively determine the inherent requirements of the position in question giving "appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment" (per McHugh J in X's Case at p 182)...

38Because s 109 [now s 104] of the Act provides that the respondent bears the burden of proving that his activities fell within s 49D(4) of the Act, the first thing that a respondent who seeks to rely upon the 'inherent requirements' defence must do is to determine the inherent requirements of the position in question. Appropriate identification of the inherent requirements of the position is a pre-condition to proving that the applicant is unable to perform those inherent requirements, both alone and with a level of assistance which would impose an unjustifiable hardship on the respondent. As the Appeal Panel noted in Maxwell, however, the employer's own statement of the inherent requirements is not conclusive. It is ultimately a matter for the Tribunal to determine, objectively, the inherent requirements of the position in question. Were the position otherwise an employer could create a totally artificial list of inherent requirements in order to avail him/herself of the s 49D(4) defence.

39Once the inherent requirements of the position in question have been identified the respondent must satisfy the Tribunal that at the time he engaged in conduct which would otherwise amount to a contravention of s 49B(1)(b) he had determined (1) that the applicant was unable to perform those inherent requirements without assistance and (2) that he could not perform the inherent requirements without a level of assistance which would impose an unjustifiable hardship upon the respondent. In this case the respondent must satisfy the Tribunal that he had made a determination about these matters at the time Mr Zraika's application was rejected which was on or before 11 October 2002.

Accordingly, the Tribunal's consideration of this defence will generally involve three steps. In the present case, the first step is to determine what were the inherent requirements of the casual DSW position for which Ms Green applied. Secondly, the Tribunal should then consider whether the respondent has established that Ms Green could not perform the inherent requirements of the DSW position because of her disability. Thirdly, if this is determined adversely to Ms Green, the Tribunal will have to address whether providing the services or facilities required so that Ms Green could perform the inherent requirements of the position imposed an unjustifiable hardship on the respondent.

In relation to the inherent requirements of the DSW position and the circumstances of the present case, it is important to bear in mind the comments of McHugh J in X v The Commonwealth (1990) 200 CLR 177 (footnotes omitted):

31Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).

32Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying" - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.  

33It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

Note also the comments of Gummow and Hayne JJ at [109] in X v The Commonwealth to a similar effect.

Certain elements of the inherent requirements of the casual DSW position can be ascertained from the respondent's documents headed "Disability Support Worker [/] Position Details" and "Critical Physical Demands Summary - Residential Support Worker", a copy of each of which was provided by Business Link to Dr Field when Ms Green was referred for her medical assessment. In addition, it was relevantly stated as follows in Business Link's 20 October 2010 letter to Immex as follows:

It should also be noted that a casual DSW may be required to work at short notice and at various group homes depending on the need at the time. As a casual the work will also vary depending on the clients and their behaviours an physical abilities. A casual may also be required to work without supervision and will not always have a supervisor on shift with them and their supervisor may vary depending on where they are allocated casual shifts.

In the present case, however, it was not in dispute that Ms Green could perform the physical aspects of the inherent requirements of the DSW position. Dr Field concluded: "From a physical perspective, I believe Ms Green is fit for the inherent requirements of a casual Disability Support Worker role" in her report of 24 November 2011. Rather, it was what Dr Field described as the inherent requirement from "a psychological perspective" that caused Dr Field and the respondent concern. In the light of the remainder of Dr Field's report and the respondent's consideration of the matter, we take this to be a reference those matters that McHugh J drew attention to in [31] to [33] of X v The Commonwealth quoted above.

Having regard to all the relevant matters we are satisfied that, in respect of the position of a casual DSW employed by ADHC in its Accommodation and Respite Services Division, possessing the ability at all times to exercise reasonable care and skill in carrying out the duties of the position and, in particular, being at all times able to carry out those duties without endangering the safety of those in the care of the DSW, were inherent requirements of that position. Furthermore, in the light of the manner in which DSWs were actually employed in group homes, these inherent requirements had to be met at all times while the DSW was the only ADHC employee present in the group home and this was likely to occur on a substantial number of occasions. In the circumstances of the present case, it is these inherent requirements that must be considered in order to determine whether there has been unlawful discrimination against Ms Green.

The Tribunal does not accept that a casual DSW would have been required to work unsupervised on every shift. The evidence did, however, establish that a casual DSW would be likely to be required to work unsupervised for a significant proportion of shifts. Whether or not a supervisor would be present on any particular shift depended principally on the level of need of the persons in the group home in question. Not all group homes were made up of residents whose needs required there to be two ADHC employees present at all times.

In the light of these findings on the inherent requirements of the casual DSW position, the Tribunal now turns to consider whether the respondent has shown that Ms Green could not perform those inherent requirements because of her disability. This question depends primarily upon the evidence of the medical practitioners, Dr Field and Dr Greenway.

As noted above, Dr Field was and is a Consultant Occupational and Environmental Physician and a Fellow of the Australasian Faculty of Occupational and Environmental Medicine, Royal Australian College of Physicians. She is not a psychiatrist. Dr Greenway was and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. The submissions made on Ms Green's behalf emphasised Dr Field's lack of formal psychiatric qualifications. On this basis, it was suggested that Dr Greenway's opinion as set out in his certificate of 18 October 2010 in which he said: "It is my opinion that this [Ms Green's bipolar affective disorder] does not prevent her from carrying out the functions of a disability support worker" should be preferred to that of Dr Field expressed in her report of 24 November 2010. In the Tribunal's view, this is not a matter of two medical practitioners having opposed opinions, one of which must be rejected by the Tribunal and the other adopted.

As we have already noted above, Dr Field accepted that Ms Green could carry out the physical requirements of the casual DSW position. Dr Greenway's report contained the same conclusion, although it was not clear from that short certificate of 18 October 2010 whether Dr Greenway was referring to more than the physical requirements when he referred to the "functions of a disability support worker". One thing, however, was established in evidence, namely, that Dr Greenway did not have any specific information as to what the functions and requirements were for a casual DSW employed by ADHC in its Accommodation and Respite Services Division when he formed his opinion and wrote his certificate.

Furthermore, Dr Field contacted Dr Greenway on 25 November 2010 and discussed Ms Green's circumstances with him. What was discussed was recorded in Dr Field's report. Dr Greenway did not have any specific recollection of the contents of the conversation but did not disagree that it had occurred. The relevant extract from Dr Field's report is set out above. The Tribunal accepts the following matters as arising in relation to and out of that conversation:

(1) Dr Field spoke to Dr Greenway on 25 November 2010;

(2) both her bipolar disorder and Asperger's Syndrome appeared to be stable at that time;

(3) Ms Green had good insight into her condition;

(4) she had improved significantly in the preceding two years and, in Dr Greenway's opinion, she could now attempt the duties of a casual Disability Support Worker - the Tribunal notes the use of the word "attempt" in Dr Field's recounting of the conversation which suggests some degree of hesitation as to whether the attempt would be successful;

(5) Dr Field agreed with Dr Greenway that Ms Green was then currently capable of performing the physical duties of a Disability Support Worker; and

(6) Dr Greenway recognised Dr Field's concern regarding the lack of supervision in a casual DSW role, and the two doctors agreed that the main issue was whether the health and safety of clients, colleagues and/or Ms Green herself were likely to be put at risk at work if her mental state deteriorated.

It does not appear to us that Dr Greenway expressed any opinion, in that conversation or elsewhere, as to whether a deterioration of Ms Green's mental state was possible or likely. Nor did he specifically deal with what level of supervision might be appropriate or for how long.

From the material before us, we conclude that both Dr Field and Dr Greenway were of the opinion that there could be a risk to the health and safety of those residents of the group homes who were to be under Ms Green's care and to her own health and safety and that of her colleagues, if Ms Green's mental state deteriorated. Further, one way to address this risk was to ensure that Ms Green was adequately supervised.

Dr Field did address those issues further in her 24 November 2010 report. She noted in various places that:

(1) although Ms Green's bipolar disorder was then stable it had taken some time to stabilise and she had been significantly unwell until a relatively short while before her examination by Dr Field;

(2) Ms Green had been off work for approximately three years and had only returned to the workforce in September 2010; and

(3) her mood had been low shortly before her examination due to other medication.

Having regard to those matters, we accept that there was a more than minimal risk that Ms Green's mental condition could deteriorate given her disorder and the changes, pressures and demands which would have been inherent in her being employed as a casual DSW. It is apparent that this was Dr Field's opinion and it was for this reason that Dr Field thought it prudent for Ms Green to commence work in a more supervised position initially and perhaps with a "probation period" and for her to continue to provide her employer with evidence of her continued fitness for work from her psychiatrist.

In the absence of any contrary medical opinion from Dr Greenway and in the light of Dr Field's expertise in Occupational Medicine, we therefore accept that "if Ms Green [was] to work as a disability support worker then to minimise any potential risk to clients or colleagues from a deterioration in her mental state, [it was appropriate for Dr Field to] suggest a role where she [would] be working with reasonably close supervision; at least initially (for example for the first six to twelve months). During this time her psychiatrist [could] also monitor her for any aggravation of her mental health conditions due to the nature and conditions of the role. If she [performed] well at work with no significant problems related to her mental health issues, then she [might] be able to progress to work with less supervision later. However this would depend on feedback from her supervisors, and would be provided that her bipolar illness [remained] stable and that she [remained] compliant with treatment."

Whilst this approach might be characterised as cautious, it is not one that the Tribunal believes it is in a position to reject as wrong, unreasonable or unjustified, in the circumstances. It can be observed here that health and safety in the workplace could be seen as mandating that employers take a cautious approach, even in cases such as the present.

In this respect the Tribunal has had regard to and taken into account Ms Green's past training and qualifications as an enrolled nurse and her experience in dealing with psychiatric patients which the Tribunal accepts were relevant to her employment as a casual DSW. The concern in the present case, however, was not so much with Ms Green's ability to perform the inherent requirements of the casual DSW position when she was well, her bipolar disorder was being managed and was stable and she was compliant with her medication regime. The concern was rather that her mental condition might deteriorate when she commenced to undertake the duties of a casual DSW and it would be essential that if this occurred there was a supervisor present to deal not only with Ms Green but also with those under her care.

It was submitted on Ms Green's behalf that the Tribunal should not accept that Ms Green could not perform the inherent requirements of the DSW position because the medical evidence was inadequate, in that Dr Field did not carry out any trial or functional assessment of Ms Green's relevant abilities. The Tribunal does not accept that submission in this case. As we have indicated above, Ms Green's ability to perform the physical requirements was not the primary focus of concern. A functional assessment or trial would not have been likely to assist in forming any relevant conclusions on Ms Green's mental condition and any deterioration consequent upon her working as a casual DSW.

As we have held above, being able at all times to exercise reasonable care and skill in carrying out the duties of the position and, in particular, being at all times able to carry out those duties without endangering the safety of those in her care were part of the inherent requirements of the casual DSW position which she had to be able to perform unsupervised on a substantial number of shifts. For the reasons given above there was a risk that Ms Green would not be able to do this and the extent of risk can be ascertained from the fact that Dr Field would not recommend that Ms Green be employed except on shifts where a supervisor was present, "for the first six to twelve months at least, depending on her performance".

In these circumstances, the Tribunal is satisfied that the evidence of Dr Field and Dr Greenway establishes that in Ms Green's case as at late 2010 she could not meet the inherent requirements of the casual DSW position because of her disability.

The Tribunal should now consider whether in order to carry out the inherent requirements of the casual DSW position Ms Green required services or facilities that would not be required in the case of person without Ms Green's disability and whether the provision of those services would have imposed an unjustifiable hardship on the respondent.

Once again, from Dr Field's report, the Tribunal concludes that it would have been prudent to employ Ms Green only if there was an additional employee of the respondent working at the group home in question for every shift worked by Ms Green for the first six to twelve months at least (depending on how she progressed) and if that person could supervise Ms Green and her work. The Tribunal has no doubt, and it was not the subject of any dispute as far as the Tribunal understood it, that a casual DSW without Ms Green's disability would not have required that supervision.

It was submitted by the respondent that the provision of supervision for Ms Green was not a "service" or "facility" within the meaning of s 49D(4)(b) and referred to the definition of "services" in s 4(1) of the ADA. That definition is an inclusive definition and, accordingly, does not limit the meaning of the word "services" as used in s 49D(4)(b). The ordinary English meaning of "service" is very broad. The Macquarie Dictionary (Rev 3rd Ed) records that it includes, among other meanings, "an act of helpful activity" and "the performance of any duties or work for another; helpful activity". The Tribunal accepts that providing supervision for Ms Green amounted to the provision of "services" in this sense and within the meaning of that word in s 49D(4)(b).

The question then becomes: would the provision of those services have imposed an unjustifiable hardship on the respondent? In considering what constitutes "unjustifiable hardship", the Tribunal is required under s 49C to take into account "all relevant circumstances" including:

(1) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned;

(2) the effect of the disability of a person concerned; and

(3) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

The Tribunal has taken into account that there was a benefit both financially and psychologically to Ms Green in obtaining employment in the latter half of 2010 and into 2011. Dr Greenway gave evidence that this could be beneficial for her mental state. The Tribunal has difficulty giving this consideration great weight, however, because Ms Green was working with Heartbeat Nursing Agency from September 2010 (until at least the beginning of 2013 when an incident unrelated to the subject of this proceeding occurred). If Ms Green's offer of employment with the respondent had not been withdrawn, her evidence was that she would have ceased working for Heartbeat and started working for the respondent. It appears to the Tribunal that the benefit, whether financial or psychological, which Ms Green could have obtained from being employed by the respondent was in large measure already being obtained as a result of her employment with Heartbeat.

The detriment to the respondent of having to provide supervision services for Ms Green is considered below when the financial circumstances and the amount of expenditure required of the respondent are considered.

The nature of Ms Green's disability was that it was difficult, if not impossible, to predict when and if Ms Green might require the assistance of another employee of the respondent because of a deterioration in her mental condition. For this reason, as we understand it, Dr Field recommended in effect that, among other things, Ms Green only be employed on shifts where a supervisor was present for the first six to twelve months at least. If the requirement for assistance or supervision could have been predicted and planned for, it is quite possible that any assistance required of the respondent might have been minimal or easily accommodated so that it would not have been such as to cause hardship. That, however, as we have found, was not the case here where the requirement for the services was not predictable.

Finally, the Tribunal should have regard to the financial circumstances and the estimated amount of expenditure required to be made by the respondent to provide the services which would have allowed Ms Green to perform the inherent requirements of the position. As to the respondent's financial circumstances, the Tribunal accepts that the respondent is part of the Government of New South Wales. It does not follow from that, however, that the respondent has effectively unlimited financial resources. Government departments and their divisions operate on budgets and their spending has to be kept within limits by those responsible for managing the department or division in question.

In regard to the consideration identified in s 49C(c) as "the estimated amount of expenditure required to be made by the [respondent]", the Tribunal was troubled by the lack of any detailed estimate of the amount of expenditure that would be required in order to provide the supervision recommended by Dr Field.

Ms Dunworth's relevant written evidence was brief and was as follows:

Each home has a budget of staff hours based on the needs of the people who live there - there is no scope to employ additional staff to supervise other staff. Further it would have proved difficult to find a supervisor available to work each and every shift with [Ms Green] as well as expensive to double roster.

For all these reasons it was not possible to proceed with Ms Green's casual employment in line with the advice from Dr Field. We were not able to safely support her in the workplace with the resources we have.

A casual DSW may only be employed to cover short term vacancies on any staff roster, for example covering sick leave of other DSW staff.

A casual may work as little as 4 hours per 28 day roster or as many as 152 hours. The rate of pay for a commencing DSW - year 1 is $22.37 as a base hourly rate, on top of that they would receive shift penalties and casual loading.

From this it could be concluded that it was very difficult accurately to estimate in detail what it would cost to provide the level of supervision Dr Field recommended because it would depend on how often Ms Green worked, who was available to supervise her, what rate of pay that person was on, among other things. Ms Dunworth's principal point in her written evidence was, as we understood it, that the staffing budget for each group home only allowed the minimum staffing needed to meet the needs of the persons who lived in the home. Any additional staffing would fall outside the budget and thus was unlikely to be able to be met, unless it were very small, without adversely affecting the provision of services in other group homes or overall by the Accommodation and Respite Services Division of ADHC. The Tribunal was, however, given no information as to other sources of funds available to the Accommodation and Respite Services Division generally or within Ms Dunworth's region, which was known as Metro South.

As has already been noted the Submission to the Regional Director prepared by Business Link and endorsed by Ms Dunworth in relation to Ms Green contained the statement that: "After careful consideration of the recommendations of the health assessment and the adjustments required to employ Ms Green; it has been determined that in the role of DSW it is not possible to provide the level of direct supervision on all shifts, that Dr Field indicates Ms Green requires to undertake the role of casual DSW. A DSW may be required to work without the level of constant and immediate supervision that Ms Green requires."

Ms Dunworth was the Regional Manager of the Metro South region for the Accommodation and Respite Services Division of ADHC. In cross examination Ms Dunworth was asked the basis for the conclusion that it was "not possible" to provide those services. She said this was based upon her knowledge of the business that she ran and still runs. It was not based on specific calculations as to costs, figures or staffing levels. She was required to work within the budget she had. She knew, from her knowledge of her business, that she did not have the capacity to hire additional staff. Ms Dunworth gave evidence that the total number of staff for which she was responsible was in the order of 1,000 people but taking all things into account she decided it was not possible to provide the supervision required in Ms Green's case. Her conclusion was not based on a detailed calculation of the costs of the many potentially relevant services and other matters involved. Rather it was a more intuitive assessment based on knowledge and experience. It may be likened to the evidence as to the value of a company's shares at a particular time given by the chairman of directors of a company who knew its position and had been concerned in its operations from the commencement. Starke J in the High Court held that such evidence should be received and asked rhetorically "But who was better qualified ... to give the evidence of the value of the company's shares on that date?" - Potts v Miller (1940) 64 CLR 282 at 292.

On these bases, the Tribunal accepts that providing the supervision services recommended by Dr Field in relation to Ms Green was not possible from the budget within which Ms Dunworth had to work. Although the matter could have been dealt with more fully in the evidence we are also prepared to accept in the light of all the evidence and our acceptance of Ms Dunworth as a reliable witness that her answers took into account any other sources of funds potentially available to the Accommodation and Respite Services Division generally or within Ms Dunworth's region to cover situations such as Ms Green's.

Having regard to all of the matters dealt with above, the Tribunal is satisfied that the respondent has established that the provision of the supervision services recommended by Dr Field in relation to Ms Green's employment as a casual DSW would have imposed an unjustifiable hardship on the respondent.

Thus, the Tribunal finds that the respondent has made out the defence available under s 49D(4) in relation to the Withdrawal of Offer Claim. Consequently, although the respondent discriminated against Ms Green on the ground of disability in determining who should be offered employment within s 49D(1)(b), this was not unlawful by operation of s 49D(4).

Conclusion

For these reasons, the Tribunal concludes that neither the Field Referral Claim nor the Withdrawal of Offer Claim constituted unlawful discrimination under s 49D of the ADA.

The complaint should be dismissed in whole and the Tribunal orders accordingly.

**********

Decision last updated: 27 August 2013

Medium Neutral Citation:	Green v Department of Family and Community Services [2013] NSWADT 193
Hearing dates:	10 and 11 July 2013Written submissions closed 15 August 2013
Decision date:	27 August 2013
Jurisdiction:	Equal Opportunity Division
Before:	R J Wright SC, Judicial Member J Schneeweiss, Non-Judicial Member J McClelland, Non-Judicial Member
Decision:	The Tribunal orders: The complaint be dismissed in whole.
Catchwords:	Disability Discrimination - Employment - Direct Discrimination - Inherent Requirements - Unjustifiable Hardship
Legislation Cited:	Anti Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW)
Cases Cited:	Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 Purvis v State of New South Wales (2003) 217 CLR 92 Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619 Haines v Leves (1987) 8 NSWLR 442 Collier v Austin Health [2011] VSC 344 Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 X v The Commonwealth (1990) 200 CLR 177 Potts v Miller (1940) 64 CLR 282
Category:	Principal judgment
Parties:	Kate Sarah Green (Applicant) Department of Family and Community Services (NSW) (Respondent)
Representation:	Counsel B Fogarty (Applicant) A Britt (Respondent) Inner City Legal Centre (Applicant)
File Number(s):	121126