Higginson v Cargill Australia Limited

[2001] NSWADT 152

CITATION:	Higginson -v- Cargill Australia Limited [2001] NSWADT 152
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT William Higginson RESPONDENT Cargill Australia Limited
FILE NUMBER:	991095
HEARING DATES:	05/04/2001, 06/04/2001
SUBMISSIONS CLOSED:	04/06/2001
DATE OF DECISION:	09/13/2001
BEFORE:	Britton A - Judicial Member; Strickland J - Member; Farmer L - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Briginshaw -v- Briginshaw (1938) 60 CLR Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 Commonwealth -v- Humphries [1998] FCA 1031 HR&EO Commission -v- Mt Isa Mines Ltd (1993) 118 ALR Waters & Ors -v- Public Transport Corporation (1991) 173 CLR 349 Waterhouse -v- Bell (1991) EOC 92-376 Commissioner of Corrective Services -v- Maxwell [2001] NSWADTAP 21 Waters -v- Public Transport Corporation (1991) 173 CLR 393 Haynes -v- CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Kennedy -Taylor (NSW) Pty Ltd -v- WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 State Transit Authority -v- Slowey [1999] NSWSC 47 Kitt -v- Tourism Commission (1987) EOC
REPRESENTATION:	APPLICANT P Smith, solicitor RESPONDENT K Morris, barrister
ORDERS:	The respondent to pay to the applicant the sum of $36,469.08 within fourteen days of the date of this decision.

1 This decision concerns a complaint of unlawful discrimination on the grounds of disability in the area of employment. The complainant, William Higginson, alleges that his employer, Cargill Australia Limited (the respondent), subjected him to unlawful discrimination contrary to the provisions of s 49D of the Anti-Discrimination Act 1977 (the Act) by refusing to allow him to return to work following surgery, despite the fact that his doctor certified him fit for work. The respondent denies that its decision not to allow Mr Higginson to return to work constitutes unlawful discrimination.

2 The applicant lodged a complaint under the Act with the President of the Anti-Discrimination Board (the President) on 7 December 1998 alleging discrimination on the ground of disability. By letter dated 30 August 1999 the President referred this complaint to the Tribunal under s 94(1) of the Act, having reached the view that the matter could not be resolved through conciliation.

Relevant Legislative provisions

3 The Act defines “disability” at s 4 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.
4 The substantive provision on which Mr Higginson relies is s 49D of the Act. That section provides:
49D(1) [Offering Employment] 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.
49D(2) [Terms and Conditions] It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(3)…
(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.
5 Discrimination on the ground of disability is defined in s 49B of the Act:
49B(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.
49B(2) [Characteristic] 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.
(3)…
(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
6 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

7 Section 54 of the Act is headed “Acts done under statutory authority” and relevantly provides:
54(1) [Compliance with requirement] Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,
any regulation, ordinance, by-law, rule or other instrument made under any such other Act.

Agreed statement of facts

8 The parties tendered in evidence an agreed statement of facts which we set out in full below.
"Mr Higginson commenced employment at the Wagga Wagga abattoir now operated by Cargill Australia Limited on 26 October 1985.
Except for the period in issue in the proceedings, Mr Higginson has worked since then (and does currently work) at the abattoir as a maintenance fitter.
The position of maintenance fitter involves the repair, maintenance and modification of equipment and machinery used at the abattoir.
The main areas of the abattoir are the Receiving area, where the animals come into the abattoir; the Slaughter Floor; the Chilling Area; and the Boning Room, where the boners cut the carcasses into various cuts of meat.
As a maintenance fitter, Mr Higginson is required on a regular basis to lift, bend, kneel, reach and climb in order to service the different machinery at the abattoir. His duties on occasion find him working in tight and restrictive positions, at ground level or above and at times in confined spaces, for instance, roof spaces and blast freezer tunnels. The duties are often performed on potentially hazardous floor surfaces such as greasy, bloody, fatty or icy surfaces.
Cargill takes measures to avoid individuals slipping on the surfaces including: providing railings on the catwalk and other slippery areas; providing non-slip material on steps; dry cleaning the greasy areas throughout the day; providing safety posters in the workplace as well as having workers in the Boning Room wear gumboots and maintenance staff who work in areas including the loading areas wear solid work boots with good tread. However, workers do nonetheless slip in the abattoir and workers do need to be careful to prevent slipping even with the measures that Cargill takes. These are inherent risks associated with working in an abattoir.
Prior to mid 1998, Mr Higginson had been suffering from a vascular condition with his left leg. Mr Higginson attended the Health Centre at the abattoir on 24 June 1998 and saw Ms Deidre Harrington informing her that he had an eight centimetre blockage at the back of his knee. Mr Higginson also informed Ms Harrington that he had seen Dr Richardson, a surgeon and was going to have surgery to remove the blockage. The Health Centre monitored Mr Higginson' s condition during his visits to the Health Centre during the period from March to May 1998.
Mr Higginson was off work between 22 June 1998 and 24 June 1998 and a medical certificate from Dr Donohoe indicated a diagnosis of vascular problems as the cause of Mr Higginson being unfit for work.
On 23 July 1998 Mr Higginson informed Ms Harwood during a visit to the Health Centre that he would be going to hospital the following week to have a bypass operation on the artery in his leg. Ms Harwood informed Mr Higginson that he was to take a letter from Cargill setting out his job description to Dr Richardson so that Dr Richardson could refer to it in making an assessment of Mr Higginson's fitness to return to work. Ms Harwood gave Mr Higginson a letter to provide to Dr Richardson. The letter indicates that Mr Higginson would need:
"to be able to wear work boots, stand on concrete flooring, walk up and down stairs, bend in [ and] under machinery and carry out a normal maintenance position without aggravation to his operation procedure ".
Mr Higginson had a bypass operation on the artery to his left leg performed by Dr Graeme Richardson (vascular and general surgeon) on or about 29 July 1998.
MrHigginson had the operation staples removed at the Wagga Wagga Base Hospital by a registrar on or about 7 August 1998. Around one month after the operation, Dr Richardson told Mr Higginson:
"If you run your artery could rupture".
A conversation took place in or about August 1998 between Mr Higginson and Mr Michel. Mr Higginson asserts that during the conversation, Mr Higginson said to Mr Michel:
"If I blow the graft I could lose my leg".
Mr Michel asserts that during this conversation, Mr Higginson said:
"If I blow the graft I could lose my leg or even my life".
Around this time, Mr Higginson formed the view that he was fit to return to his normal duties.
Mr Higginson provided the Health Centre at the Cargil1 abattoir with a letter from Dr Richardson dated 17 August 1998 stating:
"This is to certify that Mr William Higginson has attended this surgery. Attended on 17 August 1998. Fit to resume on 24 August 1998. Fit to resume normal duties with no restrictions ".
After his operation, Mr Higginson was required, in accordance with Cargill's policy, to attend the offices of Dr Fleming (who was at the time the Cargill nominated doctor) on or about 31 August 1998 so that Dr Fleming could assess Mr Higginson' s fitness to return to work. Dr Fleming provided a report to Sister Karen Leonard of Cargill which provided:
"Restrictions: unable to bend left knee beyond 900. Suggest obtain written instructions re options (work positions) from surgeon".
Mr Higginson obtained a further medical report from Dr Richardson dated 7 September 1998. This report stated that Mr Higginson had recently had a "left femora posterior tibial bypass using reverse saphenous vein". The report went on to say:
"This was a very precarious bypass attached to a small vessel deep in his calf muscles. Provided he avoids tight flexion of the knee, such as squatting, and avoids sudden extension of the leg, there should be no other restrictions on his activities. ...He is quite capable of getting down onto his knees if need be instead of squatting, and the only restriction is that I do not want him to flex his knee more than a right angle".
Mr Higginson attended a further appointment with Dr Fleming on or about 11 September 1998. Dr Fleming provided a report dated 11 September 1998 which stated:
" William is fit for work but the work must comply with Dr Richardson's restrictions. Thus William is at risk to continue his normal duties)If he could be re-deployed to work in an upright position or at bench height this would be ideal. Mr Higginson is unable to form work where squatting is necessary".
Dr Richardson had the benefit of Mr Harwood’s job description for Mr Higginson but did not contact anyone at Cargill to discuss the nature of Mr Higginson's normal duties as a maintenance fitter.
After reading the reports of Dr Richardson and Dr Fleming, Cargill formed the view, having regard to the nature of the working environment at the abattoir, that Mr Higginson was not fit to return to his normal duties as a maintenance fitter.
At this time, Mr Higginson held the view that he was fit to return to normal duties.
A meeting with Mr Higginson took place on 14 September 1998 to discuss the doctors' reports and his fitness to return to work.
Towards the end of September 1998, Mr Michel formed the view that there was no modified duties position which Mr Higginson could fill at that stage given the restrictions outlined in the reports provided by Dr Richardson and Dr Fleming. Mr Michel also formed the view that Mr Higginson ' s normal duties could not be modified in order to comply with the restrictions.
A further meeting took place on 22 September 1998 between Mr Higginson, and Mr Michel, Ms Karen Leonard and Mr David Skews of Cargill, and Mr Greg Brown of MMI Insurance, Cargill' s insurer .
Further meetings between Mr Higginson, representatives from Cargill and Mr Ayers took place on 24 September 1998 and 7 October 1998.
On 29 October 1998 and 4 December 1998, union representative Mr Ayers discussed Mr Higginson's situation with Mr Michel .
In December, 1998 Mr Michel discussed with Mr Ayers the possibility of referring the dispute to the Industrial Relations Commission of New South Wales as an industrial dispute for a medical panel of some kind to decide the issue.
On 25 January 1999, Commissioner O'Neill of the Industrial Relations Commission of New South Wales determined that the Commission did not have jurisdiction to deal with the matter.
On 24 March 1999 and 31 March 1999 Mr Peter Smith of Farrell Lusher Solicitors wrote to Dr Richardson. On or about 30 April 1999 John Michel received a letter from Farrell Lusher Solicitors (which was dated 27 April 1999) and which attached a copy of a letter dated 21 April 1999 from Dr Richardson. In this letter, Dr Richardson states:
" What I am quite clear in stating is that, in my opinion, this man is fit to return to the duties as outlined in the letter by Cargill Foods [referring to the response of Cargill Foods Australia to the Anti-Discrimination Board in a letter written by John Michel dated 15 February 1999 and provided to Dr Richardson by Mr Peter Smith of Farrell Lusher Solicitors]".
On receipt of the copy of Dr Richardson's further letter dated 21 April 1999, Mr Michel formed the view that having regard to the opinion expressed by Dr Richardson, Mr Higginson could return to work without any special risk to himself or others, other than the usual risks associated with the working environment in an abattoir.
Mr Higginson returned to work on 17 May 1999.
During the period from August 1998 to May 1999, Mr Higginson was absent from work for 42 weeks. During that time he had seven weeks' paid leave, nine weeks' paid annual leave, five weeks' paid flexible leave and 21 weeks unpaid leave of absence. Mr Higginson received Centrelink benefits during the period of the unpaid leave.
On 8 November 1999 Mr Higginson slipped/stepped off the legging stand on the beef slaughter floor when working there. Mr Higginson reported to the Health Centre. Mr Higginson grabbed hold of the edge of the stand and scraped his right shin and the back of his left thigh. Mr Higginson was attended to by his general practitioner, Dr Donohoe who provided a WorkCover certificate indicating that Mr Higginson was fit to return to work and did not require any time away from work."
Issues
9 The issues for determination in this inquiry are:
Do the actions of the respondent in refusing to allow Mr Higginson to return to work in August 1998 fall within one or more of the provisions set out in s49(D)(1) and/or s49(D)(2) of the Act.
If so, was this treatment less favourable than the treatment afforded to an employee in the same circumstances or circumstances which were not materially different who did not suffer from Mr Higginson’s disability or a disability substantially the same as his?
Third, if so, was this less favourable treatment “on the ground of” Mr Higginson’s disability?
Finally, can the respondent rely on the defence set out in s54 (1)(a) of the Act?
Onus of Proof
10 In determining whether the complainant has substantiated his complaint, the Tribunal has applied the civil standard of proof. However we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent: see the remarks of Dixon J in Briginshaw -v- Briginshaw (1938) 60 CLR at 361-362.

Evidence
11 Mr Higginson gave evidence that prior to surgery to his leg in July 1998 he had been extremely fit, exercising regularly and competing in marathons and other competitive events. Following the removal of the staples from his leg on 11 August he commenced an exercise program consisting at first of walking on a treadmill for thirty minutes a day. By 6 September he ran approximately 50 kilometres per week increasing to 100 kilometres. In October 1998 he competed in the Melbourne Marathon Run and continued to compete in various competitive events from that period onwards. From October 1998 onwards he swam approximately 1000 metres a day, increasing to 5000 metres early in 1999.

12 According to Mr Higginson throughout his twenty-years of working at the abattoir he sustained only one serious injury: a broken wrist and had never slipped while at work. In his view he knows the layout of the abattoir “as well or better than anyone”. He gave evidence that he could think of no occasion in the entire time he has been employed at the abattoir where, because of space restrictions, or any other reason, he had no option but to squat. For the past ten years because of a knee problem he chose not to squat while at work but instead when required to work at a low level either knelt (wearing kneepads for protection) or used a small stool which he kept at the abattoir. In cross-examination he conceded there may have been rare occasions (prior to the operation) where he did squat at work but no occasion had he no option but to squat. He gave evidence that most of the areas in the abattoir have non-slip surfaces. In his experience where a surface was found to be slippery, the respondent organised almost immediately for a non-slip surface to be applied.

13 Mr Higginson gave evidence that when he eventually returned to work on 17 May 1999 he did not return to his usual duties but instead worked for the first three weeks entering data into a computer.

14 Karen Donohue, the senior occupational nurse employed by the respondent said she understood that Mr Higginson had slipped off the legging stand on the beef slaughter floor when working there. Mr Higginson denied slipping and said he had missed the final step of the ladder causing him to “miss” that step and slide on to the one below. It is not in issue that as a result of this accident he sustained minor injuries but did not require any time off work.

15 Marshall McKenna, the Group Engineering Manager for the respondent gave evidence that since 1988 Mr Higginson had worked primarily in the boning room but as part of the respondent’s multi-skilling policy he could be called upon at any time to attend to equipment in any other part of the abattoir. The abattoir was old and, in his opinion, not ergonomically well-designed. Much of the equipment the fitters were required to maintain was not located at bench height but overhead or at ground level. This meant according to him that maintenance staff have to squat, kneel, reach and climb to do their work. “Mr Higginson would be required to reach those machines [located in the ceiling] by kneeling or squatting.” In cross-examination he agreed with the proposition that kneeling was an alternative to squatting and whether an individual squatted in preference to kneeling was largely a matter of personal preference.

16 According to Mr McKenna the working conditions at the abattoir demand that employees are aware of and take responsibility for safety issues. In the boning room, for example, the work environment is cramped; knives are used; and machinery is constantly in movement.

17 While the respondent takes steps to ensure that floor surfaces throughout the abattoir are not slippery, according to Mr McKenna the floors in some areas remain slippery. For example, in the boning room, while part of the floor is rough coated, inevitably some fat and grease is “walked in” to non-coated areas through the tread on workers’ boots.

18 According to Mr McKenna fitters are often required to attend to machinery in “non-managed situations”. He said that workers at the abattoir are often required to bend their legs, for example, to scrape fat, etc from their boots.

19 John Michel, the respondent’s Human Resources Manager, gave evidence that as a maintenance fitter Mr Higginson is required to lift, bend, squat, kneel, reach and climb in order to service machinery at the abattoir. These duties were often carried out in tight and restrictive positions at ground level or above and on potentially hazardous floors surfaces including greasy, bloody, fatty or icy surfaces.

20 Mr Michel said having read the reports of Mr Richardson (17 August and 7 September 1998) and Dr Fleming (31 August and 11 September 1998) he formed the view that, having regard to the working environment at the abattoir, Mr Higginson was not fit to return to normal duties because of the bending, squatting and climbing involved in that work together with the fact that this work involved working on bloody, greasy and icy surfaces throughout the plant. “It was my view there was a very real risk that Mr Higginson would injure himself if he were to return to work.”

21 In cross-examination, Mr Michel disagreed with the proposition that kneeling was a substitute for squatting. In his view, it was necessary for a person to flex their knee beyond ninety degrees in order to get down to a squatting or kneeling position.

22 According to Mr Michel towards the end of September 1998 he reviewed Mr Higginson’s medical reports with a view to determining whether there were any modified duties Mr Higginson could undertake. He said he gave consideration to placing him in a position based in the maintenance workshop that did not involve bending or squatting but was unable to do so as that position was occupied by another employee. In his view, while the respondent was legally obliged to find light duties or alternative employment to an employee who had suffered an injury at work, this obligation did not extend to persons who suffered from a non-work related injury.

23 Mr Michel gave evidence that he also considered whether it would be possible to comply with [Mr Richardson’s] restrictions by allowing Mr Higginson to kneel rather than squat but concluded that the duties of a fitter required Mr Higginson to squat and bend in confined spaces, an activity specifically ruled out by Mr Richardson.

24 Mr Michel gave evidence that he also took into account the possibility of Mr Higginson slipping and suddenly extending his leg, and considered this to be a significant risk in terms of its likelihood and potential consequences.

25 At a meeting on 22 September 1998 attended by Mr Higginson, Karen Leonard, and representatives of the respondent’s insurer, Mr Michel claims he said to Mr Higginson “you are welcome to return to work as soon as you have medical clearance to do so.” And “we are unable to provided a safe working environment for you at present and we are unable to provide you with any other duties.”

26 According to Mr Michel he again met with Mr Higginson on 24 September and said “It’s the doctor’s call as to when you will be fit to return to work. I will contact Neville Rowe from the Country Meatworks Association to better understand our responsibilities if there is a problem with your leg while at work”.

27 Mr Michel stated that following receipt of Mr Richardson’s report dated 21 April 1999 he decided to allow Mr Higginson to return to work, concluding in light of that report that Mr Higginson would be able to carry out his normal duties “without any special risk to himself or others other than the usual risks associated with working in an abattoir”.

28 A statement prepared by Dr Fleming was tendered in evidence. Dr Fleming was not required for cross-examination. He stated that throughout the period 1994-2000 he was the respondent’s “preferred doctor”. During this period he visited the abattoir on a number of occasions to observe the working environment of the abattoir.

Findings and Conclusions

29 It is not in issue that Mr Higginson suffered from a disability (or presumed disability) within the meaning of s 4 of the Act. The first issue therefore for us to determine is whether the respondent’s refusal to allow him to return to work falls within one or more of the provisions set out in s 49D(1) or s 49D(2) of the Act.

30 While Points of Claim were filed in these proceedings, they failed to particularise the substantive provision or provisions of the Act on which the complainant relies. It appears to us from the submissions advanced on behalf of the parties that both were of the view that the respondent was entitled to rely on the so-called “inherent requirement” defence as set out in s49D(4) of the Act. Section 49D(4) provides a defence to conduct which would otherwise constitute unlawful discrimination, if taking into account various specified matters, the complainant, because of his or her disability, would be unable to carry out the inherent requirements of their employment either with or without reasonable facilities.

31 Relevantly this defence is only available in respect of complaints falling within s 49D(1)(b) and s 49D(2)(c) of the Act. As it is not contended that Mr Higginson was dismissed, to rely on the “inherent requirement” defence it must be shown that the decision not to allow Mr Higginson to return to work can be characterised as relating to a determination as to who should be offered employment as per s 49D(1)(b).

32 Section 49D(1) makes it is unlawful to discriminate against a person in respect of specified matters. In contrast s 49D(2) makes it is unlawful to discriminate against an employee. Read as a whole it is clear that s 49D(1) deals with pre-employment matters and s 49D(2) with matters that arise in the course of employment.

33 In our view, a determination about who should be offered employment is of an entirely different character from a decision concerning whether an existing employee should be permitted to return to work. The former is concerned with selecting a person for employment; the latter with the terms and condition of employment of an existing employee. In certain types of employment arrangements a decision to allow an existing employee to return to work could be said to be one and the same thing as a decision about who should be offered employment. This may be the case, for example, in a long-term casual employment arrangement where the employment contract notionally terminates at the end of each discreet period of engagement. In such a case the distinction between a decision about who will be offered employment may, in effect, be indistinguishable from a decision about whether an employee should be allowed to return to work. However, these are not the facts before us. Here, Mr Higginson was employed on a permanent full-time basis; at the time of the alleged unlawful discrimination he was an existing employee of the respondent; his employment could only be terminated at the election of one or both parties. Accordingly this complaint could not said to fall within s49D(1)(b).

34 It follows, therefore, as Mr Higginson’s complaint does not fall within either s 49D(1)(b) or s 49D(2)(c) the inherent requirement defence is not available to the respondent.

35 It appears to us the complaint falls within s49D(2) of the Act in particular s 49(2)(a) and s 49(2)(d). Section 49D(2)(a) makes it unlawful for an employer to discriminate against an employee on the ground of disability in the terms and conditions of employment, which the employer affords an employee. The provision of employment is a matter expressly or impliedly addressed in the contract of employment and, in our view, squarely constitutes a term and or condition of employment.

36 Section 49D(2)(d) operates as a “catch-all” provision making it unlawful to discriminate against an employee on the ground of disability by subjecting the employee to any other detriment. It is clear from the authorities that “detriment” in the context of s 49D(2)(d) has been given broad meaning and encompasses a wide range of situations where an individual’s employment is adversely effected. In our view a decision to refuse an existing employee work potentially constitutes a detriment within the meaning of s 49D(2)(d).

37 Accordingly we find that the respondent’s refusal to allow Mr Higginson to return to work comes within the terms of s 49D(2)(a) and s 49D(2)(d) of the Act.

38 Before leaving this issue, we note that the operation of s49D(4) leads to a perverse outcome, permitting an employer to rely on the inherent requirement defence in respect of hiring and firing decisions but not in respect of other matters covered by s49D. Consequently, an employer who concludes that a job applicant is unsuitable for a particular position because of his or her disability can look to the inherent requirement defence. In contrast, that defence is not available to an employer who refuses to transfer or promote an existing employee on the grounds that, because of his or her disability that employee cannot comply with the inherent requirements of their position.

39 The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1977(NSW) (Sydney, 1999) at page 257 observed that it appeared illogical that: “The exception [s 49D(4)(a) of the Act] concerning ability to carry out the inherent requirements of the particular employment does not apply in relation to denial of access to promotion, transfer or training…An employer should be able to take on an employee in a particular position for which she or he is capable (with or without reasonable facilities) but should also be able to reassess the ability of the employee in relation to a new position which may require different capabilities.”

40 Having found that the respondent’s actions fall within the terms of s49D(2)(a) and s49D(2)(d) of the Act we turn to consider whether the treatment of which Mr Higginson’s complains constitutes unlawful discrimination as defined in s49B(1)(a) of the Act.

41 In Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal, after considering the leading authorities, posed a question to be asked in cases of direct discrimination: Did the respondent on the ground of the complainant’s disability treat the complainant less favourably than it treated or would have treated a person without that disability in the same circumstances or circumstances that were not materially different? This test involves two elements labelled by the Appeal Panel in Aldridge as “different treatment” and “causation”.

42 Therefore to succeed in his complaint of direct discrimination Mr Higginson must first establish that the respondent, in refusing to allow him to return to work, subjected him to different treatment; and second, that the respondent did so on the grounds of his disability.

43 It is not in issue that the respondent’s refusal to allow Mr Higginson to return to work throughout the relevant period constitutes different treatment than that meted out to Mr Higginson’s work colleagues. The respondent’s maintenance fitters who did not suffer from Mr Higginson’s particular disability (and there is no evidence of any who did) were not refused employment throughout the relevant period (August 1998-May 1999). What is in issue is whether this treatment also constitutes less favourable treatment. Can it be said that the necessary element of detriment, central to the concept of “less favourable treatment” has been made out? The task falls to the complainant to prove on balance that the evidence objectively assessed establishes that his treatment was less favourable.

44 There may be circumstances where the refusal to allow an employee to return to work may lack the necessary quality of detriment. However, this is not a straightforward case of an employee who presents him or herself to work in the face of clear and unequivocal medical evidence that they are unfit to work. Here the medical evidence, to which we shall return, is in conflict. The complainant’s doctor certified on 17 August 1998 and at various times after that date, that Mr Higginson was fit to return to work; the respondent’s doctor agreed he was fit to return to work but not to his usual duties.

45 We understand Ms Morris for the respondent to argue that the Tribunal must take into account the motives and reason for the respondent’s decision. The respondent’s case is couched in terms of “the reasonableness” of that decision. It is asserted for the respondent that it acted out of concern for Mr Higginson’s health and the consequent legal liability that might flow if he were to be injured at work. In support the respondent relies on Dr Fleming’s report dated 11 September 1998 which states that while Mr Higginson is fit to return to work he is at “risk to continue his normal duties.”

46 While it may be the case that the respondent’s decision was motivated at least in part by a genuine concern for their employee’s health and well-being, this is not decisive in our determination of whether Mr Higginson was subjected to less favourable treatment. We acknowledge there are a range of views on the relevance of motive in assessing whether a particular act constitutes less favourable treatment (See for example, Commonwealth -v- Humphries [1998] FCA 1031 per Keifel, J at 12.9; HR&EO Commission -v- Mt Isa Mines Ltd (1993) 118 ALR per Lockhart J (at 102-3)). However we are not satisfied that the facts of this particular case justify a departure from the more established approach adopted in a significant line of authority which makes clear that, even if a respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory. (See, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors -v- Public Transport Corporation (1991) 173 CLR 349 at p. 359 and the judgment of Clarke JA in Waterhouse -v- Bell (1991) EOC 92-376 at pp. 78, 589-78, 590.)

47 Whatever the motivation that lay behind the respondent’s decision, the outcome was that Mr Higginson was denied employment for a period of 42 weeks. During this period he received no pay for about five months and used a combination of accrued leave entitlements for the remaining period. His loss was real and of substance, it could not be said to be trivial. Accordingly we are satisfied that the respondent’s refusal to allow Mr Higginson to return to work constitutes less favourable treatment.

48 The next issue for us to determine is whether the respondent in refusing to allow Mr Higginson to return to work did so on the grounds of his disability or presumed disability.

49 The authorities make clear that to succeed in his claim Mr Higginison must establish an identifiable causal link between his disability and the acts of his employer of which he now complains.

50 Mr Higginson’s performance as an employee is not in issue. There is no evidence before us to suggest that the respondent acted as it did out of concern with the quality of Mr Higginson’s work. The respondent’s case is that Mr Higginson was not allowed to return to work as the respondent’s managers (properly) formed the view, based on medical advice and their knowledge of the working environment, that there was a significant risk that Mr Higginson would injure himself if he were to resume work. Mr Michel’s evidence is that not only was he of the view that there was a significant risk of injury but he was troubled by the consequences that might flow from any injury. It is apparent that Mr Michel’s August 1998 conversation with Mr Higginson in which, according to him, he was told, “If I blow the graft I could lose my life [or, according to Mr Higginson, my leg]” played heavily on Mr Michel’s mind.

51 However, s 4A of the Act requires the complainant to prove that his disability was but one of the factors, albeit a causally connected factor in the respondent’s decision. Whether the deciding factor was the respondent’s view that he would be unable to perform normal duties without risk of severe injury or concern for the legal or insurance consequences, the inescapable conclusion is that Mr Higginson’s disability was one of the grounds for the respondent’s decision.

52 Accordingly, we find that the less favourable treatment afforded Mr Higginson was on the grounds of his disability.

53 In summary we are satisfied that the respondent’s refusal to allow Mr Higginson to return to work constituted both a discriminatory condition of employment within the meaning of s 49D(2)(a) and a detriment within the meaning of s 49D(2) (d). We are further satisfied that Mr Higginson was treated less favourably than employees who did not suffer from his disability in the same circumstances or circumstances that were not materially different. Further we are satisfied that the respondent refused to allow Mr Higginson to return to work on the ground of his disability. Accordingly the complaint of unlawful disability discrimination has been substantiated.

Section 54 defence

54 It remains for us to determine whether the respondent can rely on s 54(1)(a) of the Act. Section 54(1)(a) renders a discriminatory act lawful where that act was necessary in order to comply with a requirement of any other Act, whether passed before or after the Anti-Discrimination Act . Section 109 of the Act provides that the onus of proving that the respondent’s conduct falls within one or more of the exceptions to the Act, of which s 54 is but one, lies with the respondent.

55 The respondent submits that if the Tribunal finds that its refusal to allow Mr Higginson to return to work constitutes unlawful discrimination by virtue of s 49D of the Act that conduct is rendered lawful by s54 of the Act. The respondent asserts that it was necessary for it to refuse to allow Mr Higginson to return to work throughout the relevant period in order to comply with s 15 of the Occupational Health and Safety Act 1993 (the OH&S Act).

56 The respondent’s submissions require us to explore the interrelationship between s 54 of the Act and s 15 of the OH&S Act. To this end as pointed out by the Appeal Panel in Commissioner of Corrective Services -v- Maxwell [2001] NSWADTAP 21 at [78] we need to examine the breadth of s54 and the extent and nature of the obligations imposed on the respondent by virtue of s15 of the OH&S Act.

57 Section 54 (1)(a) of the Act provides that the Act does not render conduct unlawful if such conduct was necessary in order to comply with a provision of any other Act. However it is clear that to convert otherwise unlawful conduct into lawful conduct it is not sufficient for a respondent to merely assert that they acted in compliance with a requirement of any other Act. The evidence objectively assessed must establish that the act of unlawful discrimination was necessary in order to comply with a provision of some other Act. Furthermore it would appear to us that on the proper construction of s 54 (1)(a) a respondent seeking to call on that section must prove that in order to comply with any other Act it had no option but to act as it did. The operation of s 39 of the now repealed Equal Opportunity Act 1984 (Vict.), broadly equivalent to s 54 of the Act was considered by the High Court in Waters -v- Public Transport Corporation (1991) 173 CLR 393. In that decision Dawson and Toohey J.J. said (at 173):

“ If it were necessary for the respondent to commit acts of discrimination in order to carry out the specific directions of the Minister for Transport or the Director-General of Transport then, by virtue of s 39(e)(ii), those acts would not be unlawful, but if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination, the adoption of discriminatory means would be afforded no protection by s 39(e)(ii).”

58 We turn now to consider the nature of the obligation imposed on the respondent by Section 15 of the OH&S Act. Section 15(1) of the OH&S Act imposes on employers a far-reaching strict liability to ensure the health, safety and welfare at work of their employees. Section 15(2) sets out a non-exhaustive list of indicia of how an employer can contravene s15(1).

59 Section 15 relevantly provides:
Employers to ensure health, safety and welfare of their employees:

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.
(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:
(a) to provide or maintain plant and systems of work that are safe and without risks to health,
(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,
(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,
(d) as regards any place of work under the employer's control:
(i)to maintain it in a condition that is safe and without risks to health, or
(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,
(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or
(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:
(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or
(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.
60 Relevantly the general duties created by the OH&S Act are directed at obviating “risks” to the health, safety and welfare of persons in the workplace: Haynes -v- CI & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. As observed by the Full Bench of the NSW Industrial Relations Commission in Kennedy-Taylor (NSW) Pty Ltd -v- WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240 (7 December 2000) [at 54]: “The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.”

61 State Transit Authority -v- Slowey [1999] NSWSC 47 provides some guidance on the approach that should be taken where the s54 defence is raised. In that decision Barr J endorsed the approach taken by the NSW Equal Opportunity Tribunal in Kitt -v- Tourism Commission (1987) EOC pp 92-196, citing with approval the following passage:

“By virtue of sec. 109 of the Anti-Discrimination Act, the burden of establishing this defence lies upon the respondent. It must be affirmatively proved that the respondent's obligations under the Occupational Health and Safety Act required that Mr Kitt be dismissed from his employment as a guide; or to put it another way, that the continued employment of Mr Kitt constituted such a risk to the safety of other persons within the caves that the employer was obliged to dismiss him in order to comply with the legislation.
There is no concept of reasonableness imported here. The question is not one of what the employer believed, nor of whether any such belief was reasonably held or based upon adequate grounds. The sole question is whether, from an objective point of view, Mr Kitt's employment constituted a risk to the safety of other persons, within the meaning of sec. 15(1) and 16(1) of the Occupational Health and Safety Act.”
62 We propose to adopt that approach in this decision. Therefore we must determine whether the respondent has established that, from an objective point of view, Mr Higginson’s return to work prior to May 1999 constituted a risk to the health, safety or welfare of other persons within the evidence before it when Mr Higginson first indicated he was ready to return to work, made clear that his return would be in breach of its obligations under s 15 of the OH&S Act.

63 The original report prepared by surgeon, Mr Richardson, dated 17 August 1998 certified Mr Higginson fit to return to work but provided no details of the nature of the surgery performed and whether his duties should be restricted. In accordance with company policy Mr Higginson was then referred to Dr Fleming, “Cargill’s nominated doctor.” Mr Higginson advised Dr Fleming that Mr Richardson had told him not to bend his knee beyond ninety degrees. On the basis of this consultation Dr Fleming called for a more detailed report from Mr Richardson.

64 Mr Richardson’s subsequent report dated 7 September 1998 confirmed his earlier assessment that Mr Higginson was fit for work adding the following qualification: “ Provided he avoids tight flexion of the knee such as squatting, and avoids sudden flexion of the leg, there should be no other restrictions on his work.”

65 Following receipt of this second report Dr Fleming concluded that Mr Higginson was fit to return to work “ but the work must comply with Mr Richardson’s restrictions. Thus William is at risk to continue his normal duties. Mr Higginson is unable to perform work where squatting is necessary.”

66 We understand the respondent to argue that it was entitled to give greater weight to Dr Fleming’s assessment, specifically that Mr Higginson was “at risk to continue his normal duties” as, unlike Mr Richardson, he had a detailed knowledge of the work carried out by the respondent’s maintenance fitters. Put simply, the respondent asserts that Dr Fleming was better placed to make an informed assessment of whether Mr Higginson could carry out the normal tasks of a maintenance fitter without risk to his health. In support of this argument the respondent relies on the statement of Mr Richardson in his 7 September 1998 report “it is obviously impossible for me to categorically state what jobs he can or cannot do within these restrictions but I am sure your attention to the detail of his employment will indicate whether there need be any modification to his work practices”.

67 However, the evidence is less than clear as to whether Dr Fleming was, as the respondent asserts, better placed to advise on Mr Higginson’s return to work. While Mr Fleming enjoyed the benefit of having visited the plant from time to time, the evidence is inconclusive as to what he knew of the work of maintenance fitters. It is not altogether clear what information Dr Fleming and Mr Richardson had before them when preparing their respective reports nor is it clear whether Dr Fleming had received a copy of the so-called “Job Description”. Under the heading “Requirement” that document states: “To be able to wear work boots. Stand concrete flooring, walk up and down stair, bend in under machinery and carry out a normal maintenance position without aggravation to his operation procedure.” But in any event in light of the paucity of information contained in that document, in our view little turns on whether Dr Fleming had the benefit of reading this document.

68 While Dr Fleming unequivocally states that Mr Higginson was unable to perform work which involved squatting, there is nothing before us to suggest that Dr Fleming had turned his mind to whether it was possible to perform the duties of a fitter without squatting. Nor is there any evidence that Dr Fleming was aware of Mr Higginson’s long-standing preference for kneeling. Relevantly, Dr Fleming’s reports make no mention of what, if any, part the risk of Mr Higginson extending his leg through slipping played in his assessment that Mr Higginson was unfit to return to normal duties.

69 It is not in issue that the work of a maintenance fitter cannot be carried out by working only at bench height. What is in issue was whether Mr Higginson could perform his duties as a fitter without recourse to squatting. His evidence, accepted by us, is that prior to his operation he preferred to kneel rather than squat because of an (unrelated) knee problem and used a small stool for that purpose. He found squatting uncomfortable.

70 Critical to the respondent’s assessment that Mr Higginson was unfit to return to work (prior to May 1999) was Mr Michel’s assessment that it would be impossible for Mr Higginson to carry out his normal duties without squatting or utilising some other position which would cause his knee to be flexed beyond the limit mandated by Mr Richardson. Mr Michel’s view was that it was not possible to substitute kneeling with squatting (a view revealed in cross-examination not to be shared by Mr McKenna).

71 The respondent further contends that the issue of Mr Higginson’s ability to perform normal duties cannot be neatly disposed of by merely determining whether kneeling can be said to be a substitute for squatting. Ms Morriss argues that Mr Richardson’s report dated 7 September 1998 makes clear that Mr Higginson is to avoid all positions which cause the knee to be extended beyond ninety degrees.

72 While it is asserted on behalf of the respondent that squatting is not the only position that causes the knee to be tightly flexed, it is somewhat unclear from the evidence what other positions might cause the knee to be so extended. The evidence shows that Mr Michel believed it was not possible for a person to get down to a kneeling or squatting position without causing the knee to extend beyond ninety degrees. This stands in contrast with Mr Richardson’s assessment who states in his 7 September 1998 report, “he [Mr Higginson] is quite capable of getting down to his knees if need be.”

73 But, in any event, in our view, even if the evidence can be said to establish that maintenance fitters use positions, other than squatting, which causes their knees to be tightly flexed, the evidence does not show that there are no alternatives to these positions. In reaching this assessment we note Mr Higginson’s evidence that he could not think of any instance in the past ten years where to perform his duties he had no option but to extend his knee beyond ninety degrees. It would appear to us that the respondent has mistakenly elevated “squatting” to the status of an inherent requirement where, as correctly pointed out by Mr Richardson in his letter to the respondent of 21 April 1999, the requirement is more correctly characterised as an ability to get down to low levels, not the ability to squat.

74 In our view the respondent, in concluding that Mr Higginson could not perform his usual duties and at the same time wholly comply with Mr Richardson’s instruction not to tightly flex his knee, failed to give due weight to the personal circumstances and history of their employee. While it may be that the majority of Mr Higginson’s colleagues regularly extended their knees beyond ninety degrees the evidence makes clear that Mr Higginson did not and had not done so (with rare exception) for the past decade.

75 There is no evidence before us to suggest that the respondent, in concluding Mr Higginson would be unable to perform the job of maintenance fitter without extending his knee beyond ninety degrees, failed to give that question careful consideration to this issue or did not genuinely hold that view. Nevertheless we find that the evidence objectively assessed shows otherwise.

76 We turn now to consider the respondent’s argument that Mr Higginson was unable to comply with the second part of Mr Richardson’s instruction, namely, to avoid any sudden extension of his knee. It is not in issue that a sudden extension of the leg was a possible consequence of slipping. We note there is no evidence to suggest that because of his disability or some other reason, Mr Higginson was more prone to slip than his colleagues. Rather we understand the respondent’s concern to centre on the consequences that would flow if Mr Higginson slipped.

77 The respondent has taken extensive measures to minimise the risk of slipping. These steps include coating parts of the floor with a non-slip finish; providing handrails in certain areas; continuously dry cleaning greasy areas and issuing maintenance fitters (and other employees) with safety boots with good tread. The evidence shows that the respondent promoted the importance of safety amongst its workforce.

78 However, the respondent has been unable to entirely eliminate the risk of slipping from its workplace although the limited evidence before us on this point shows that risk to be low. Relevantly Mr Higginson claimed not to have slipped in his twenty years at the abattoir and disputes the respondent’s allegation that his November 1999 fall involved slipping.

79 Ms Morris submits that the evidence shows that a return to work prior to April 1999 represented a real risk to Mr Higginson’s health and safety. As the respondent could not guarantee that he would not slip while at work, it follows, asserts Ms Morris, that a return to work at that time was at odds with the respondent’s obligations under s 15 of the OH&S Act. The risk to Mr Higginson argues Ms Morris, was not fanciful but real and foreseeable and accordingly in all the circumstances the respondent acted reasonably.

80 It is apparent from the evidence that the respondent takes its obligations to provide a safe working environment seriously. Its commitment to the safety of its employees extends beyond idle words; the respondent has taken extensive steps to minimise the risk to its employees of slipping. However, the evidence shows that, in what can only be regarded as an inherently dangerous work environment, the respondent has not succeeded in eliminating that risk.

81 If the respondent’s argument is correct that it had no option but to refuse Mr Higginson’s return to work (prior to April 1999), as it was unable to eliminate the risk of slipping, and as such unable to comply with s 15 of the OH&S Act, it would appear to us that it follows that the respondent may also be unable to comply with s 15 in respect of all abattoir employees. Because the consequences of an injury may be more severe for a particular employee due to disability or some other factor such as pregnancy it does not follow that an employer will necessarily be in breach of s 15 if they permit such employee to resume work. As stated in Kennedy -Taylor [at 54] it is “the failure of the employer to ensure that its employees are not exposed to risks” that constitutes the offence under s 15 of the OH&S Act. For a prosecution to succeed under s 15 it needs to be established that there was some causal connection between an act or omission on the part of the employer and the accident that occurred. It would appear to us that the respondent has unduly concentrated on the consequences of Mr Higginson slipping rather than the steps taken to obviate the risk of accident.

82 While it is not in issue that the respondent as an employer was required to comply with s15 of the OH&S Act, it does not automatically follow that the respondent was required by virtue of that provision to bar Mr Higginson’s return to work. An employer seeking to rely on the s 54 exemption, faced with apparently competing medical opinion, cannot merely point to its preferred medical advice to establish that it was necessary to act as it did in order to comply with any other Act. It is necessary for all relevant factors to be taken into account. Here, the applicant was of the view he was fit to return to work. That view was supported by medical opinion. Dr Fleming’s contrary opinion appears to be based on the assumption that squatting was necessary to carry out the work of a fitter. The evidence shows that there are alternatives to squatting. Mr Higginson’s evidence was that he had not slipped at work in twenty years. Further it is relevant to note that slipping related accidents amongst the respondent’s workforce are not common; the respondent has taken measures to minimise the risk of slipping; the complainant was no more prone to slip than other employees. While it was proper that the respondent have regard to the consequences of a slipping injury, this is but one of the factors required to be taken into account.

83 We deal finally with the argument raised in passing by the respondent that Mr Higginson’s return to work prior to May 1999 may have constituted a risk to the safety and health of other employees. We see no evidence to support this claim. There is simply no evidence before us to suggest that Mr Higginson was more prone to accidents than his colleagues. Nor does the evidence suggest that if he were involved in an accident his fellow employees would be placed at any greater risk than they would be had the accident involved another employee of the respondent.

84 In conclusion we are not satisfied that the respondent has proven that it was necessary for it to refuse to allow Mr Higginson to return to work in order to comply with s15 of the OH&S Act.

Relief

85 The complainant seeks damages in the amount of $36,469.08 for economic loss. Section 113(1)(b)(i) of the Act permits the Tribunal to order a respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct.

86 This claim is calculated on the basis of lost income for the period Mr Higginson was off work, commencing on 7 September 1998, ( the date Mr Richardson provided his second report) and concluding on 17 May 1999. This represents a period of 273 days. The method of calculating the sum sought by the complainant for loss of income was tendered in evidence (Exhibit 7). The respondent did not take issue with the complainant’s calculations.

87 We are satisfied that the complainant has established the necessary causal connection between his income loss throughout the relevant period and the respondent’s acts of unlawful discrimination. Further we are satisfied that Mr Higginson has taken reasonable steps to mitigate his loss. We accept the sum of $36,469.08 set out in Exhibit 7 being for Mr Higginson’s income loss for the relevant period to be a fair and reasonable estimate of the economic loss suffered by the complainant.

Orders

88 We order that the respondent pay to the applicant the sum of $36,469.08 within fourteen days of the date of this decision.