Hilditch v AHG Services (NSW) Trading as Lansvale Holden
[2017] FCCA 1086
•29 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILDITCH v AHG SERVICES (NSW) TRADING AS LANSVALE HOLDEN | [2017] FCCA 1086 |
| Catchwords: HUMAN RIGHTS – Alleged breaches of the Disability Discrimination Act 1992 (Cth) – whether the respondent should have made reasonable adjustments – application dismissed. |
| Legislation: Disability Discrimination Act 1999 (Cth), ss.4, 5, 6, 15 Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Cases cited: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Australian Medical Council v Wilson, Hastings & Morgan [1996] FCA 1618; (1996) 68 FCR 46 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 |
| Applicant: | DAVID HILDITCH |
| Respondent: | AHG SERVICES (NSW) TRADING AS LANSVALE HOLDEN |
| File Number: | SYG 3616 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 and 8 November 2016 |
| Date of Last Submission: | 8 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Cross |
| Solicitors for the Respondent: | Colin Biggers & Paisley |
ORDERS
The application made on 23 December 2014 and amended on 13 April 2015 is dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3616 of 2014
| DAVID HILDITCH |
Applicant
And
| AHG SERVICES (NSW) TRADING AS LANSVALE HOLDEN |
Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”) by Mr David Hilditch (“the applicant”) on 23 December 2014 and amended on 13 April 2015. Mr Hilditch alleges that AHG Services (NSW) Trading as Lansvale Holden (“the respondent” or “AHGS”), unlawfully discriminated against him on the grounds of his disability, in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”).
The Australian Human Rights Commission (“the AHRC”) issued a “Notice of Termination” pursuant to s.46PH(2) of the AHRC Act on 4 November 2014, which stated that the complaint alleging unlawful discrimination under the DDA had been terminated before the AHRC under s.46PH(1)(b) of the AHRC Act.
Mr Hilditch made the complaint terminated by the AHRC on 3 April 2014. The AHRC terminated the complaint pursuant to s.49PH(1)(b) of the AHRC Act on 4 November 2014, on the ground that the complaint had been lodged more than 12 months after the alleged unlawful discrimination took place.
Before the Court
Mr Hilditch is self-represented before the Court. According to the Court’s record, he did have legal representation that commenced after the filing of his application on 23 December 2014, and formally ceased with a Notice of Withdrawal of Lawyer on 4 July 2016. During that time, Mr Hilditch filed an amended statement of claim (“ASOC”) and an amended application on 13 April 2015.
Mr Hilditch has filed four affidavits in support of his application. Each appears to have been filed by him, without the assistance of a legal representative:
a)The affidavit of David Hilditch, Retired, affirmed on 23 February 2015, annexing a number of documents.
b)The affidavit of David Hilditch, Retired, affirmed on 14 August 2015, annexing a number of documents.
c)The affidavit of David Hilditch, Retired, affirmed on 9 October 2015, annexing a number of documents.
d)The affidavit of Roslyn Allison Hilditch, DSS Pensioner, affirmed on 9 October 2015, annexing a number of documents.
AHGS has filed three affidavits on which it relies:
a)The affidavit of Amrita Sen, [no occupation specified], affirmed on 18 September 2015, annexing a number of documents.
b)The affidavit of Darren Grant, [no occupation specified], affirmed on 17 September 2015, annexing a number of documents, described as exhibit “R-1”.
c)The affidavit of Mark Ronald Duncan, Service Delivery Manager, affirmed on 23 September 2015, annexing a number of documents.
The objections to the affidavit evidence and the disposition of those objections are contained in Schedule 1 to this judgment.
AHGS tendered a bundle of relevant document (“the Court Book” – “CB”, “RE1”). AHGS also tendered a “file note” (“RE2”).
Mr Hilditch attempted to tender a “letter” said to be from the surgeon who performed surgery on his hand in 2016, and which was sent to a General Practitioner. This document was marked for identification (MFI).
Background
Mr Hilditch alleges that AHGS discriminated against him on the ground of his disability. Mr Hilditch’s claims were set out in the ASOC prepared with the assistance of a legal practitioner. The following background is relevant.
He commenced employment in September 1998 as a “Pre Delivery Foreperson” with “Daktri Pty Ltd t/as Lansvale Holden” (“Daktri”). He claimed that his position description in this role “did not require him to be involved in any mechanical work”, however, “due to short staffing and rush orders, he would regularly become involved in this type of work” ([7] of the ASOC).
Daktri was purchased by Automotive Holdings Group Limited, a parent company of AHGS, on 12 March 2007. Mr Hilditch continued to be employed in the same position with a “subsidiary” of that company (ACM Liverpool Pty Ltd (“ACM”)). However, he continued to work in the same location (that is, the Holden Lansvale dealership). He reported directly to Mr Duncan who was ACM’s service manager. Mr Duncan gave evidence in these proceedings.
On 13 January 2009, Mr Hilditch sustained an injury to his left hand “while performing work duties” ([17] of the ASOC). This was described in the evidence of Mr Duncan, as an injury to Mr Hilditch’s finger “while working on a vehicle after his finger got caught between a brake caliper… and the wheel” ([8] of Mr Duncan’s affidavit). He required hospital treatment and post-operative care. He had a WorkCover NSW Medical Certificate certifying he was unfit for work duties for at least one month (see the affidavit of Mr Grant at “Tab 3” of exhibit “R-1” and the affidavit of Mr Hilditch of 9 October 2015 at annexure “B”).
Mr Hilditch required surgery on his finger which occurred on 14 January 2009, when “two pins” were “inserted in his left little finger”. He was unable to return to work on “pre injury duties until he had his pins removed” ([18] - [19] of the ASOC).
After a meeting on 20 January 2009 with Mr Hilditch, his wife, Mr Duncan, Ms Nicole Hart (AHGS’s Human Resources Manager), and Mr Madgwick (AHGS’s Dealer Principal), Mr Hilditch returned to work on 29 January 2009 for four hours per day performing administrative duties. That is, no mechanical duties, following an assessment and WorkCover NSW Medical Certificate issued by Dr Tony Fernandes ([20] – [24] of the ASOC, the affidavit of Mr Hilditch of 9 October 2015 at annexure “c” and see the affidavit of Mr Grant at “Tab 3” of exhibit “R-1”).
Mr Hilditch had the pins removed from his finger on, or around, April 2009. Thereafter he returned to his full time pre-injury duties. Further, Mr Hilditch claimed that the amount of his duties increased post-May 2009, when AHGS made a pre-delivery mechanic redundant and did not replace the position ([25] – [26] of the ASOC).
It was at this time that Mr Hilditch alleges that he began experiencing “ongoing cramping and locking of his hand” while performing mechanical work, and that he continuously injured himself as he could not grip tools properly ([27] of the ASOC). Mr Hilditch alleges that he approached Mr Duncan on a “regular basis” to explain his discomfort and request provision of more suitable duties ([28] of the ASOC).
Due to a company restructure, Mr Hilditch’s employment was “transferred” from AHG Pty Ltd, AHGS’s parent company, to AHGS. Mr Hilditch says he was told that as a result, he was to be offered the position of “Fitter” to commence on 1 July 2010 ([32] - [35] of the ASOC). He commenced work as an accessory fitter and reported to a Mr Molica. His “core” duties involved mechanical work and the fitting of accessories. Mr Hilditch alleges that to “accommodate his hand injury” he “made self-induced reasonable adjustments avoiding weight bearing with his left arm… and also seeking regular assistance from the other fitters where required” ([36] - [38] of the ASOC).
In his evidence, Mr Duncan claimed that Mr Hilditch told him of the issues with his hand in “late 2010”. [In the context of the other evidence, probably October 2010.] He asked Mr Hilditch to organise a medical certificate and then no further information was received from the applicant in relation to his hand at that time (see the affidavit of Mr Duncan of 23 September 2015).
On 12 October 2010 Mr Hilditch suffered a stroke at work due to a blocked vessel in his throat ([40] - [41] of the ASOC). Following an “Extracranial Cerebrovascular Duplex Scan”, Mr Hilditch was diagnosed with an “enlarged lymph node in his neck” ([42] of the ASOC). The applicant returned to work on 18 October 2010.
Mr Hilditch claims that on or about 18 December 2010, he sustained a second workplace injury to his right knee. AHGS denies this and says that no such workplace injury was ever reported to them (see [44] of AHGS’s Defence).
On 16 January 2011, Mr Hilditch was diagnosed with Stage 3 Throat cancer. Mr Hilditch’s wife informed Mr Duncan of the diagnosis and requested that the information be kept “confidential”. Mr Hilditch alleges that when he returned to work on 20 January 2011 a colleague enquired as to whether he had been diagnosed with cancer ([46] – [48] of the ASOC).
Mr Hilditch attended to a number of matters prior to commencing treatment, taking short periods of personal leave. His last day of work before commencing chemotherapy was 28 February 2011. The applicant underwent a treatment plan that included chemotherapy and radiotherapy ([49] – [51] of the ASOC).
On 7 May 2011, Mr Hilditch attended his general practitioner, Dr Visvalingam, and “explained that he was unable to undertake the fitter duties” ([52] of the ASOC). Dr Visvalingam requested an assessment of the applicant’s work capabilities from a Dr Fernandes. Mr Hilditch received a report from Dr Fernandes in or about mid May 2011. The report confirmed that the applicant could no longer perform his duties as a fitter “due to aggravation of his left hand injury”. About this time, Mr Hilditch says he provided Dr Fernandes’ report to Mr Duncan ([53] – [54] of the ASOC). [In context, from the ASOC and other evidence, about mid-2011].
On 18 May 2011, Mr Duncan sent Mr Hilditch a letter offering him AHGS’s “Employee Assistance Program” (“EAP”), as Mr Hilditch’s personal leave entitlements were due to expire, and requested a meeting with Mr Hilditch and his wife ([55] of the ASOC).
On 10 June 2011, Dr Fernandes provided Dr Visvalingam with an ongoing report in relation to what duties Mr Hilditch “could undertake and what positions were suitable considering his disability”. Although not entirely clear from the evidence, it would appear that on the same date, the applicant provided the report to Mr Duncan ([56] of the ASOC). On 14 June 2011 Mr Hilditch received a medical certificate from Dr A Fowler concerning his cancer treatment.
Mr Hilditch’s treatment ended in late June 2011. Around this time, Mrs Hilditch telephoned Mr Duncan to enquire as to Mr Hilditch’s return date for suitable work duties ([58] of the ASOC).
On 22 June 2011, Mr Hilditch attended a meeting with Mr Duncan, Ms Amrita Sen, AHGS’s then Human Resources Relationship Manager, and Mrs Hilditch. Mr Hilditch explained that he could return to work “performing office duties, driving duties and or other similar duties”. Mr Hilditch claims that Ms Sen “explained that [he] should concentrate on his recovery” and that she would discuss “possible suitable duties” for Mr Hilditch with Mr Duncan ([59] – [60] of the ASOC).
On 26 August 2011, Mr Hilditch saw Dr Visvalingam and was issued with a “Final WorkCover Medical Certificate”, and was “declared fit for permanently modified [office] duties” ([61] of the ASOC).
Mr Hilditch alleges that throughout July and August 2011, AHGS did not consult with him in relation to any possible transfers to suitable positions. Mr Hilditch alleges this was despite AHGS having suitable “ongoing administration, driving, office and spare parts positions throughout its national distribution network” ([63] – [64] of the ASOC).
I interpose to note that this would have been difficult for AHGS to do for most of this period, given that the certificate was not issued until 26 August 2011. It is not entirely clear on the evidence as to when the certificate was given to AHGS. At best, on or about 26 August 2011, (see the affidavit of Mr Grant at [22] and “Tab 9” of exhibit “R-1”).
On 1 September 2011, Dr Visvalingam provided a medical certificate to Mr Hilditch confirming he was suffering from anxiety and was unfit for work between 1 – 16 September 2011 ([65] of the ASOC).
Mr Hilditch’s wife apparently entered into correspondence with a Mr Chad Davies, AHGS’s General Manager of Operations, outlining her concerns about Mr Hilditch’s treatment on 5 September 2011 ([66] of the ASOC).
On 6 September 2011, a Mr Chris Daly informed Mr Hilditch by letter that he would be receiving fifty per cent of his wage from that day onwards (see [24] of the affidavit of Mr Grant and [24] of the affidavit of Ms Sen, both referencing “Tab 11” of exhibit “R-1”).
On 9 September 2011 Mr Hilditch attended a further meeting with Mr Daly, Ms Sen and Mrs Hilditch, where Mr Hilditch claims he explained that he was fit to undertake duties “not limited to administration, clerical and driving” ([68] of the ASOC).
I interpose again to note that this was in the middle of the period when Mr Hilditch also said in his ASOC that he had been given medical certificates that said he was unfit for work (see [32] above).
On 16 September 2011, Dr Visvalingam provided Mr Hilditch a further medical certificate certifying that he was not fit for work from 17 September 2011 to 16 October 2011, due to his anxiety and depression ([69] of the ASOC).
Mr Hilditch provided to the Court, two WorkCover NSW Medical Certificates from Dr Visvalingam, dated 29 September 2011 and 24 October 2011, declaring him fit for “modified duties”. Mr Hilditch again alleges that throughout this period AHGS did not consult with him in relation to any possible transfers to suitable positions. Again, Mr Hilditch alleges this was despite AHGS having suitable “ongoing administration, driving, office and spare parts positions throughout its national distribution network” ([73] – [74] of the ASOC).
Paragraph 73 of the ASOC states:
“Throughout this period the Respondent did not consult the Applicant regarding any possible transfers to positions that were suitable as per the medical certificate.”
The reference to “throughout this period” appears, in context, to refer to the period up to 24 October 2011. It is difficult to see, given the various and sometimes “contradictory” medical certificates, how AHGS can reasonably be said to have failed to meaningfully consult with Mr Hilditch about “suitable” work “as per the medical certificate”.
The period to which the ASOC appears to refer (September – October 2011) was, on Mr Hilditch’s own ASOC, subject to various medical certificates stating he was unfit for work for specified periods. Nor could AHGS be said to have failed to provide “modified” work in “accordance” with the medical certificate dated 24 October 2011, during the period predating the certificate.
The difficulty faced by AHGS in attending to those matters that the ASOC asserts it should have done, is also seen by the WorkCover NSW Medical Certificate of 26 August 2011 from Dr Visvalingam which stated that Mr Hilditch was “fit for office duties only”, and could not use tools or perform “fitter” duties (see the affidavit of Mr Grant at “Tab 9” of exhibit “R-1”).
On 19 December 2011, Mr Hilditch received a further WorkCover NSW Medical Certificate from Dr Visvalingam, which stated that he was “fit for office duties only” ([75] of the ASOC).
It appears that Mr Hilditch made a “CGU Workers Compensation” claim, for which he undertook a psychiatric assessment on 12 January 2012 ([76] of the ASOC). The ASOC does not state whether this was provided to AHGS.
On 13 January 2012, a consultant psychiatrist, Dr Graham George, produced a psychological assessment of Mr Hilditch (see further below).
On 20 January 2012, Mr Hilditch received a “Functional Assessment Report” conducted by “Keystone Professionals” with regard to his “functional capacities”, which confirmed he was “fit for full time duties” that did not include (see “Functional Assessment Report” attached at annexure “Y” to Mr Hilditch’s affidavit of 23 February 2015):
“- Occasional/repetitive and sustained tool use with the left hand.
- Occasional/repetitive manipulation of nuts and bolts with the left hand.
- Occasional/repetitive and sustained gripping tasks that require gross grasp with the left hand.
- Lifting > 13.2kg.
- Repetitive lifting with the left hand.”
On 27 February 2012, Ms Sen requested from Mr Hilditch a medical certificate stating that he would be able “to return to his pre-injury duties” ([80] of the ASOC). On 3 March 2012, Mr Hilditch received a further medical certificate “diagnosing” his continued anxiety ([82] of the ASOC).
The ASOC repeatedly asserts AHGS’s claimed failure to explore with Mr Hilditch any position comprising of tasks that he could undertake. It is not clear as to what period this is said to relate. The assertion at [81] of the ASOC references a date as at June 2011, which predates the medical certificates of 26 August 2011, 1 September 2011, 16 September 2011, 29 September 2011, 24 October 2011, 19 December 2011, 3 March 2012 and 19 March 2012.
On 16 March 2012, Ms Sen emailed Mr Hilditch requesting a date of anticipated return to “pre-injury duties” and explained that the reduced payments would be ceasing.
Dr Visvalingam issued a further “final” WorkCover NSW Medical Certificate on 19 March 2012 stating that Mr Hilditch was (see the affidavit of Mr Grant at “Tab 16” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2017 at annexure “I”):
“Fit for office duties only. Cannot use tools or perform fitter duties. Not fit for work at AHG”.
AHGS terminated Mr Hilditch’s employment on 5 April 2012, stating that, with reference to the medical certificate dated 19 March 2012, they had “no option but to regard your employment with AHG as at an end” (see the affidavit of Mr Grant at “Tab 18” of exhibit “R-1”).
Mr Hilditch had made a complaint to the Fair Work Ombudsman (“FWO”) on 19 December 2011 in relation to “non-provision of a redundancy payment” (see Mr Hilditch’s application filed on 23 December 2014). The FWO decided to take no further action after an investigation on 28 March 2012. He made a further complaint to the Fair Work Commission (“FWC”) on 15 May 2012 in relation to the termination of his employment (see the affidavit of Mr Hilditch of 23 February 2015 at annexure “Z-8”). He discontinued this complaint on 6 June 2012 (see the affidavit of Mr Hilditch of 23 February 2015 at annexure “Z-7”).
I interpose yet again to note that while the ASOC refers to a large number of medical certificates having been issued and provided to Mr Hilditch, it only notes the following as having been provided to AHGS:
(1)The WorkCover NSW Medical Certificate of early 2009 (see the affidavit of Mr Grant at “Tab 3” of exhibit “R-1” and the affidavit of Mr Hilditch of 9 October 2015 at annexure “B”) ([19] of the ASOC).
(2)The “notification of injury” of 21 January 2009 (see [9] of the affidavit of Mr Duncan) ([23] of the ASOC).
(3)The certificates dated 12 October 2010 and 15 October 2010 (see the affidavit of Mr Grant at “Tab 5” of exhibit “R-1”) ( [40] and [43] of the ASOC).
(4)The report from Dr Fernandes confirming that Mr Hilditch could no longer perform fitter duties “due to aggravation of his left hand injury” ([54] of the ASOC).
(5)The “ongoing” report of 10 June 2011 (see the affidavit of Mr Hilditch of 14 August 2015 at annexure “C”) ([56] of the ASOC).
The ASOC itself is silent as to whether the other certificates or reports were provided to AHGS.
Consideration
The following preliminary points need to be made. First, Mr Hilditch was unrepresented at the hearing in these proceedings. While his wife sought to provide some assistance, her lack of understanding of relevant legal issues made her assistance limited.
Second, while the Court sought to provide some leeway to Mr Hilditch, particularly during his attempts to cross-examine AHGS’s witnesses, there are limits to how far such leniency may extend without making the proceedings unfair for the other party.
Third, there is no doubt that Mr Hilditch harboured a high degree of grievance about what he says was done to him by AHGS. The difficulty for Mr Hilditch, and to the extent that she was permitted, or able, to participate, Mrs Hilditch, was that they were unable to explain, or “convert”, that grievance into any recognisable legal propositions, or to platforms from which legal propositions could be derived. Nor did they provide a coherent factual basis within which to consider whether some arguable case could emerge.
Fourth, and understandably, Mr Hilditch had some difficulty in understanding the distinction between evidence and submissions and the need for final submissions to be linked to, and arise from, the evidence presented. In that light, some of his final submissions required great caution on the part of the Court to see if the necessary links existed.
Fifth, Mr Hilditch’s amended application and ASOC were prepared with legal assistance. To a significant extent, Mr Hilditch did not seek to directly link his submissions to the matters raised in those documents, or to explain his case in that context.
The documents are, however, the appropriate starting point for the Court’s current consideration. The relevant Act identified in the amended application, under which discrimination is alleged as being unlawful, is the DDA. Only ss.5(1), 6(2) and 15 of the Act are asserted as being relevant (see questions 4 and 5 of “Part B – Grounds of Application” in Mr Hilditch’s amended application filed 13 April 2015). [I note that unlike the amended application, the ASOC asserts ss.5(2), 6(1) and 15 as being relevant].
This illustrates one of the difficulties faced by Mr Hilditch. Section 6 of the DDA, of course, is concerned with “indirect discrimination”. Yet in his submissions, he made no satisfactory attempt to invoke or, even as a layperson refer, to relevant concepts. For example, a “comparator”.
In any event, it is necessary to set out the relevant sections of the DDA. Section 5(1) of the DDA is in the following terms:
“Section 5
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.”
Section 6(2)(c) of the DDA is in the following terms:
“Indirect disability discrimination
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
…
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.”
Sections 15(1) and (2) of the DDA are in the following terms:
“Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.”
Mr Hilditch’s employment was terminated on 5 April 2012. The ASOC states that the reason for this was that AHGS maintained that he was unfit to perform his pre-injury duties as a “fitter”. In short, the ASOC asserts that Mr Hilditch’s employment was terminated based on his disability in relation to his left hand, and his consequent inability to perform mechanical and fitting duties.
I have set out the salient features of the ASOC above, because even with the difficulties identified above, it represented the only seemingly coherent background, and account, of Mr Hilditch’s case.
AHGS now disputes some aspects of this account, and in
cross-examination, challenged important aspects of Mr Hilditch’s evidence. These are addressed below.
In his submissions, Mr Hilditch focused on specific disagreements with AHGS’s evidence, rather than on attempts to explain why his evidence was to be preferred, and how, on the evidence, AHGS breached the DDA. Nor did the submissions make any satisfactory attempt to explain the basis of his case in the context of the DDA. The ASOC therefore remains the only coherent statement of the legal basis of his claim.
In this regard, the ASOC asserts that Mr Hilditch had a disability in accordance with s.4(1) of the DDA. AHGS did not dispute this. Mr Hilditch’s disability is identified in the ASOC as the partial loss of functioning of his left hand. I find that, on the evidence, the partial loss of function of the left hand did occur, and comes within the definition of “disability” at s.4(1)(a) of the DDA which existed as at 2009, and continued to exist for the duration of Mr Hilditch’s employment with AHGS.
It is important to note that while the ASOC makes reference to other medical conditions said to have been suffered by Mr Hilditch, these are not “pleaded” in the amended application, or identified in the ASOC, as the basis of any alleged discriminatory conduct or action by AHGS. This was consistent with Mr Hilditch’s approach before the Court, where his emphasis in this regard, was the loss of function occasioned by the injury to his left hand. He confirmed this in his oral evidence to the Court.
The ASOC in this context, asserts that AHGS breached s.5(2) [Mr Hilditch’s amended application states s.5(1) of the DDA is the relevant section but the ASOC states s.5(2) of the DDA is the relevant section] of the DDA in two ways. First, it did not redeploy, or transfer, Mr Hilditch to other employment, or consider any “reasonable adjustment” to his employment to allow him to continue in employment with AHGS.
Second, AHGS made no proposal to make any reasonable adjustment, which led to disadvantage for Mr Hilditch, in that he was not provided with ongoing work on a full-time wage, and ultimately his employment was terminated.
The ASOC also alleges a breach of s.6 of the DDA. [Mr Hilditch’s amended application states s.6(2) of the DDA is the relevant section but the ASOC states s.6(1) of the DDA is the relevant section.] In any event, the allegation is one of “indirect discrimination”. This is explained by the assertion that AHGS made it a “requirement” of Mr Hilditch’s employment contract, that he be “fit to undertake his
pre-injury duties” in circumstances where AHGS knew this was not possible due to his disability ([91] of the ASOC).
The ASOC also alleges that Mr Hilditch was “disadvantaged” by AHGS “not providing him ongoing work on a full time wage” and also “terminating his employment because he would not comply with the requirement or condition” ([91] of the ASOC).
As a preliminary point, I should note that direct and indirect discrimination have been held to be mutually exclusive concepts (Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Australian Medical Council v Wilson, Hastings & Morgan [1996] FCA 1618; (1996) 68 FCR 46, Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission & Anor [1997] FCA 1311; (1997) FCR 78 per Sackville J, Commonwealth of Australia & Anor v Human Rights & Equal Opportunity Commission & Ors [1997] FCA 664; (1997) 147 ALR 469 and see more recent authority Sklavos v Australasian College of Dermatologists [2016] FCA 179 and Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199).
However this does not affect the applicant’s capacity to at least plead both in the alternative (Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 (“Hollingdale”) at [19] and Minns v New South Wales [2002] FMCA 60). I note further that more recently, for example in Zoltaszek v Downer EDI Engineering Pty Ltd (No.2)[2010] FMCA 938 per Barnes FM, as she then was, since Hollingdale, this situation appears to have been implicitly accepted by this Court. However, it is the case that a pleading in the alternative in these circumstances may give rise to an adverse costs order (Hollingdale at [19]).
The ASOC also asserts a breach of s.15 of the DDA. The explanation is that the breaches alleged in relation to s.5(2) and s.6(1) occurred in a situation of employment.
Therefore, the relevant period for current purposes, and as it arises from the ASOC, is the date of the injury to Mr Hilditch’s left-hand (13 January 2009), to the date of the termination of his employment (5 April 2012).
The ASOC asserts that Mr Hilditch suffered loss of income from July 2011 to March 2012 (in various amounts), and from April 2012. Further, Mr Hilditch seeks damages for non-economic loss.
The ASOC was, as set out above, drafted by a legal practitioner. In the absence of anything to the contrary, there is no reason to assume that it was drafted other than on instruction from Mr Hilditch. I say this even though in cross-examination, Mr Hilditch appeared to be unsure of various contents of, if not much of, the ASOC.
The first issue for consideration now, as it can reasonably be seen to arise from, and as asserted in, the ASOC is, as AHGS submitted, whether AHGS made “reasonable adjustments” to enable the applicant to continue in employment. That is, in relation to s.5(2) of the DDA.
In this regard, it is important to note what was relevantly said in Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (“Watts”) at [23] per Mortimer J:
“To what does the adjustment relate? By s5(2), it is made ‘for’ the person with a disability. It is not made ‘to’ the position the person occupies. It is not made ‘to’ the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification ‘for’ the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word ‘adjustment’ in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an ‘adjustment’ that, a decade or two ago, may have been little more than a theory.”
[Emphasis Added.]
The focus therefore, must be on Mr Hilditch who had the disability (the injury to his left hand), and whether AHGS made reasonable adjustments, that is, “alteration[s] or modification[s]” that would operate on his ability to do the work that he was employed to perform.
In this light, Mr Hilditch’s evidence, and repeated assertions in submissions, that AHGS had a number of employment positions to which he could have been “re-deploy[ed]”, did not assist his case. Nor, similarly, did the references, particularly from Mrs Hilditch, as to the failure of the respondent to offer redundancy.
The focus is Mr Hilditch’s disability, and the obligation of AHGS to make reasonable adjustments for Mr Hilditch. But as is made clear in Watts, the reasonable adjustments would need to operate on Mr Hilditch’s ability to do the work that he was employed to do.
In the circumstances of this case, this requires focus on different time periods reflecting both changes to Mr Hilditch’s work, and changes to his various medical conditions and treatments.
The immediate question is to identify the work Mr Hilditch was employed to perform. Mr Hilditch suffered the injury which resulted in his disability, on 13 January 2009. At that time, and as set out above, he was employed as a “Pre-Delivery Manager”.
Mr Hilditch returned to work after surgery on his hand on 29 January 2009. He worked part-time and performed what the ASOC describes as “suitable duties”. These were the allocation and supervision of work, and administrative and management duties. They were not the full suite of pre-injury duties. Mr Hilditch performed “suitable duties” on a
full-time basis from 17 March 2009 (see the affidavit of Mr Grant at “Tab 3” of exhibit “R-1”) until April 2009, when he returned to his
pre-injury duties.
Mr Hilditch’s “graduated” return to full-time duties, was consistent with medical certificates provided by Dr Fernandes who was the “nominated treating doctor” for WorkCover New South Wales (see the certificates at “Tab 3” of exhibit “R-1” to Mr Grant’s affidavit and annexure “B” and “C” to Mr Hilditch’s affidavit of 9 October 2015). A “final” WorkCover certificate was issued by Dr Fernandes on 24 November 2009, which certified that Mr Hilditch was “fit for pre-injury duties” (“Tab 4” of exhibit “R-1”to Mr Grant’s affidavit). From this date until 1 July 2010, Mr Hilditch performed his pre-injury duties. Mr Hilditch was offered the position of “fitter” which was to commence from 1 July 2010 (see Mr Grant’s affidavit at “Tab 2” of exhibit “R-1”).
Two matters require note. Before the Court, Mr Hilditch took issue with questioning in cross-examination which referred to his injury to his “finger”, instead of his “hand”. While this was specifically in relation to questions concerning a medical report of 13 January 2012 by Dr George (see further below at [139]), the WorkCover NSW Medical Certificates all describe the injury of January 2009 as “left 5th finger” (see the certificates in the affidavit of Mr Grant at “Tab 4” of exhibit “R-1”) or “left little finger” (see the affidavit of Mr Grant at “Tab 3” of exhibit “R-1” and the affidavit of Mr Hilditch of 9 October 2015 at annexure “B”). In his own affidavit evidence, Mr Hilditch described the injury as “I crushed my left little finger …” ([4] of Mr Hilditch’s affidavit of 9 October 2015).
It is not clear why Mr Hilditch sought to make this distinction (transcript of Court proceedings of 7 November 2016 at page 57 line 26):
“[Mr Hilditch] … I shall say again, not finger, hand.
[Mr Cross] Okay. Well, you didn’t say ‘hand’ on the day, did you?
[Mr Hilditch] Well, we’re not all geniuses, are we?”
As set out above, Mr Hilditch’s ASOC claims that in about May 2009, he was directed to undertake “further and expanded duties” previously performed by a mechanic whose position had been made redundant. This work caused “cramping” and “locking” of his hand ([26] - [27] of the ASOC).
The ASOC also asserts that in this period, and following, Mr Hilditch regularly approached Mr Duncan, his supervisor, to explain the difficulties with his left hand ([28] of the ASOC). In
cross-examination, Mr Hilditch asked Mr Duncan if he had ever approached him (in the pre-July 2010 period), to ask him about his hand. Mr Duncan’s evidence was that he did ask about Mr Hilditch’s hand “from time to [time]”.
However, Mr Duncan and Mr Hilditch gave different accounts of what then occurred. Mr Hilditch stated that he would hold up his hand in front of Mr Duncan’s face and would say: “stuffed”. Mr Duncan gave evidence that Mr Hilditch did not say that to him. Mr Duncan stated that Mr Hilditch only raised the matter of his hand “feeling sore”.
Mr Duncan and Mr Hilditch also differed on the description of Mr Hilditch’s position in the pre-July 2010 period. Mr Duncan described the position as a “pre-delivery foreman/fitter”, and that Mr Hilditch performed technical and mechanical work and certain administrative tasks. Mr Hilditch’s evidence was that he was a “foreman” and “manager” of AHGS’s “pre-delivery department”.
It would appear, in my view, that the dispute centred on the title of the position, rather than the exact duties. That is, Mr Hilditch disputed that he was a “pre-delivery foreman/fitter”, but rather was a “manager” of the pre-delivery department. However, in terms of his tasks and duties he also gave evidence that he would “help” with “fitting” duties when necessary. On his evidence, that appeared to be frequent, as he also gave evidence that, in this context, he would (see [3] of the affidavit of Mr Hilditch of 9 October 2015):
“…come into work early and leave late to help out [his] fellow colleagues and to keep the customers happy. Sometimes [he] would also work through [his] [l]unch [b]reak.”
In all therefore, even on Mr Hilditch’s evidence, irrespective of the job title, he regularly performed “fitting” (mechanical) work in the
pre-July 2010 period. This work increased when the specific “fitter” position was made redundant.
This brings us back to the dispute as to whether Mr Hilditch told Mr Duncan about the difficulty with his hand in performing his duties in the pre-July 2010 period. Plainly, if Mr Hilditch had told his supervisor Mr Duncan of this difficulty, which would be a “disability” for the purposes of s.5 of the DDA, then the question of reasonable adjustments to his position, in relation to the pre-July 2010 period, would become a live issue.
However, there are four factors that strongly support AHGS’s position, such that the issue of reasonable adjustments did not arise.
First, Mr Hilditch’s claim is that his hand became increasingly “sore” since the redundancy of the “fitter” in May 2009, which meant he had to perform increased fitting work. His evidence was that his left hand was dysfunctional. However, the WorkCover NSW Medical Certificate dated 24 November 2009, which post-dated the redundancy by some six months, certified that he was “fit for
pre-injury duties”, which, even on Mr Hilditch’s evidence, included some “fitting” duties (see “the affidavit of Mr Grant at “Tab 4” of exhibit “R-1”).
These duties, on the evidence before the Court provided now by Mr Hilditch, were classified under the job description heading of
“Pre-Delivery Foreman” reporting to the “Service” and “Sales” managers (see the affidavit of Mr Hilditch of 14 August 2015 at annexure “A”). The duties included responsibility for mechanical and fitting work (see item 2 of the “Job Description” in the affidavit of Mr Hilditch of 14 August 2015 at annexure “A”).
When the business was purchased, in effect, by AHGS in March 2007, Mr Hilditch was offered employment which he accepted, “in your current role at your current location” (see the affidavit of Mr Hilditch of 23 February 2015 at annexure “U”).
In the absence of any corroborative evidence to the contrary, Dr Fernandes’ certificate must be taken to mean that Mr Hilditch’s fitness to perform his pre-injury duties, relevantly included mechanical and fitting duties. If Mr Hilditch was “dysfunctional” in the period up to November 2009, no mention is made of this in Dr Fernandes’ certificate.
Second, Mr Duncan gave evidence that Mr Hilditch told him on one occasion that his hand was “sore”. On the initial evidence presented to the Court, it appears that this was some time during the pre-July 2010 period, although in re-examination, there was a suggestion it may have been after 1 July 2010. There is some corroborative evidence that suggests that this may have occurred in October 2010. That is, after 1 July 2010 (see the letter from AHGS’s Group Payroll Manager, of 13 July 2011 at Annexure “X” to Mr Hilditch’s affidavit of 23 February 2015).
In any event, even though the letter was provided to the Court by Mr Hilditch, it supports AHGS’s position, irrespective of when Mr Hilditch now says he told Mr Duncan his finger/hand was “sore” (that is, before, or after, 1 July 2010), part of the letter stated:
“David mentioned to his manager on or about October 2010 that his finger was troubling him and the manager told him to go the (sic) his doctor and get a medical certificate and we would address this with CGU. He never mentioned it again and never went to the doctor so the manager assumed it was all ok.”
There is no reason not to accept Mr Duncan’s evidence that he told Mr Hilditch to have his hand looked at by a medical practitioner, and if appropriate, refer the matter to the relevant human resources area. On the evidence, there was no medical certificate provided by Mr Hilditch in relation to the hand in this period, other than the WorkCover NSW Medical Certificate of 24 November 2009, nor did he give any evidence that he referred the matter to the human resources area.
Third, what remains therefore, is the dispute in the evidence between Mr Duncan and Mr Hilditch as to how often Mr Hilditch told Mr Duncan that his finger/hand was “sore” or “stuffed”. For the period prior to July 2010, I accept Mr Duncan’s evidence that there was no complaint made by Mr Hilditch about his capacity to do the “fitter” work that he did in this period. There is no medical evidence to support Mr Hilditch’s submission in this regard. The only relevant medical evidence, the WorkCover NSW Medical Certificate of 24 November 2009, supports AHGS’s position. That certificate states that Mr Hilditch was “fit for pre-injury duties” from that date (see the affidavit of Mr Grant at “Tab 4” of exhibit “R-1”).
Fourth, and as set out above, on 23 June 2010 Mr Hilditch was offered a different position, that of “accessory fitter” following a restructure of AHGS’s operations (see the letter of offer of 23 June 2010 at annexure “C” to the affidavit of Mr Hilditch of 14 August 2015).
Mr Hilditch subsequently signed the Employment Agreement (“EA”) that accompanied the offer. That event is important in the disposition of this case for a number of reasons.
The Employment Agreement (see the affidavit of Mr Grant at “Tab 2” of exhibit “R-1”, and see also [12] of that affidavit) makes clear that the position being offered was as a “Fitter on a Full Time basis” (see [2] of the EA). The “main duties and responsibilities” of the position were clearly set out at Schedule 1 to the Employment Agreement.
On any plain reading there could be no doubt that what was being offered was a vehicle accessory fitting position. Given Mr Hilditch’s extensive experience in the automotive industry which, on the evidence, is not in dispute, the requirements of the position being offered to him would have been clear to him.
Initially, Mr Hilditch’s position before the Court was that he was “pressured” to sign the Employment Agreement upon it being given to him. Nonetheless, on Mr Hilditch’s own evidence (see in particular the affidavit of Mr Hilditch of 9 October 2015 at [9], and orally before the Court), he took it home and kept it for three days before signing it. It appears he was given the Employment Agreement on a Friday and brought it back the following Tuesday.
I pause here to note an example of another difficulty faced by Mr Hilditch before the Court in these proceedings. I do not mean to accord any disrespect to Mr Hilditch, but on a number of occasions in the presentation of his evidence and submissions, he made statements that indicated he had not thought through the consequences and impact of certain matters on his case.
The example here was his insistence that he was not “offered” three days to think about the Employment Agreement, but that he “took three days”. Further, that this was contrary to what “they put in their statements” (presumably Mr Hatcher, said to be Group Service Manager (see [31] of the ASOC), and Mr Duncan), that he signed it the “next day”.
Whether AHGS’s managers said he (Mr Hilditch) signed it the “next day” (which could in context be explained as the next “working day”), or did not offer him time, what remains on his own insistence in his evidence, is that he took the Employment Agreement home for at least three days and voluntarily signed it. This was in circumstances where, given his relevant experience, he would reasonably be expected to have known, with a degree of certainty, what was being offered.
The fact of Mr Hilditch’s signature on the Employment Agreement and his voluntary agreement to enter into a contract of employment to perform the functions of a “fitter”, is inconsistent with his claim now that increasingly in the period prior to signing the Employment Agreement, he had difficulty because of his hand in performing the duties of a fitter, albeit on a part-time basis, that were, on his evidence, not the totality of his duties at that time. Yet he voluntarily signed an Employment Agreement to perform those duties on a full-time basis.
The question raised here is why would Mr Hilditch, unless acting in bad faith, sign an agreement to do a job which he now says he could not do.
In all therefore, for the period between his return to full-time duties, up until he commenced the full-time fitters position on 1 July 2010, there was no occasion for AHGS to consider, or provide, any reasonable adjustments to Mr Hilditch’s work duties, as he was able to perform those duties.
The signing of the Employment Agreement by Mr Hilditch is also important in understanding what subsequently occurred, and up to the cessation of his employment. It also provides, as AHGS submitted before the Court, the context of the explanation for the commencement of these proceedings.
Mr Hilditch’s evidence and his submissions before the Court, were that the “only reason” he signed the Employment Agreement was that “there was a medical on it”. This is explained with reference to dot point 1 at [1] of the Employment Agreement which states that (see the affidavit of Mr Grant at “Tab 2” of exhibit “R-1” and the affidavits of Mr Hilditch of 23 February 2015 at annexure “Z-4” and 14 August 2015 at annexure “C”):
“1. PRE-CONDITIONS Your employment is contingent upon you doing the following to our satisfaction:
-
Successfully completing a
pre-employment medical examination arranged by us, which satisfies us that you will be capable of fulfilling the requirements of your position”
Mr Hilditch’s evidence is that “[he] was prepared to undertake [the medical] gladly” (see [9] of the affidavit of Mr Hilditch of 9 October 2015). His submission now, is that he signed the Employment Agreement in the expectation he would have to undergo a medical examination which would presumably reveal the difficulty that he claimed that he had with some of the pre-Employment Agreement duties. His evidence was “[t]he jobs that [he] had difficulty with because of [his] injury [he] booked into service” (see [9] of the affidavit of Mr Hilditch of 9 October 2015). Mr Hilditch’s oral evidence was that he hoped he would “get a medical because they refused to acknowledge my hand”.
AHGS’s submission before the Court, was that Mr Hilditch became “disgruntled” after taking the “fitter position” (in June/July 2010). The reason AHGS advanced for this, is that Mr Hilditch thought that rather than being offered the fitter position following the restructure of AHGS’s operations, he should have been “made redundant” and received redundancy pay.
Mr Hilditch’s submission, and his evidence, that he only signed the Employment Agreement so as to obtain a medical examination which would reveal the difficulty with his hand (as at June/July 2010 and following), cannot be accepted. Mr Hilditch gave no satisfactory explanation to the Court, let alone any relevant evidence, as to why, if his left hand was causing such difficulty for him, he did not arrange to consult a medical practitioner on his own initiative.
It did not require the signing of the Employment Agreement for Mr Hilditch to have undergone a medical assessment of his hand. There is no evidence before the Court that at any relevant time he consulted any doctor, even a general practitioner, on his own initiative, about his hand, let alone provided any medical certificate at the relevant time to AHGS.
I note further that for the post-July 2010 period, if not the relevant period before, Mr Duncan’s evidence as to only one communication by Mr Hilditch concerning the condition of his hand and its effect on his fitter work, is supported by a contemporaneous record (see above at [107]).
As set out above, Mr Hilditch continued to suffer further and different health problems. These are addressed below. However, for immediate purposes, in relation to a further Workers Compensation application made by Mr Hilditch, Mr Duncan provided a written statement dated 14 September 2011 to AHGS’s relevant insurer, that is, CGU Workers Compensation New South Wales Ltd (see the affidavit of Mr Duncan at annexure “A”, and the affidavit of Mr Hilditch of 23 February 2015 at annexure “S”).
It is important to note that Mr Duncan’s statement was given to an insurance investigator. It contemplates that what is set out in the statement is “evidence” which Mr Duncan would have been prepared to give in Court, as a witness, if that became necessary (see at [1] of that statement).
The statement sets out, as at 14 September 2011, Mr Duncan’s understanding of Mr Hilditch’s relevant work history. Mr Duncan’s statement at that time relevantly, and repeatedly, reports that following Mr Hilditch’s return to work after the “final” Workers NSW Medical Certificate from Dr Fernandes of 24 November 2009, and thereafter, he reported no complaints about his hand other than in late 2010 when he reported that his hand, was “hurting”. This appears to have been the occasion referred to above (at [105] and [107]), when Mr Duncan says he told Mr Hilditch to go and consult a doctor.
It is important to again note the further medical episodes involving Mr Hilditch following the “final” WorkCover NSW Medical Certificate from Dr Fernandes dated 24 November 2009.
On 12 October 2010, Mr Hilditch was diagnosed by Dr Fernandes as having suffered a “stroke at work due to a blocked vessel in his throat”. On 18 December 2010, Mr Hilditch claimed to have sustained a “second” workplace injury to his right knee. AHGS denied this. On 16 January 2011 he was diagnosed with Stage 3 throat cancer in respect of which he had chemotherapy treatment until 29 June 2011.
As set out above, in the meantime, and for the first time since the “final” WorkCover NSW Medical Certificate of 24 November 2009, Dr Fernandes provided the applicant with a report, dated May 2011, that he could no longer perform the “fitter” duties due to an aggravation of the injury to his left hand. On 10 June 2011, Dr Fernandes provided a further report concerning the duties Mr Hilditch was able to perform, and advice as to what “positions” were “suitable” for him given his hand injury (see the affidavit of Mr Hilditch of 14 August 2015 at annexure “C”). Dr Fernandes provided a second “final” WorkCover Medical Certificate dated 26 August 2011. This certificate certified that Mr Hilditch was fit to return to work for “permanently modified duties”, and that he was “[f]it for office duties only. Cannot use tools or perform fitter duties” (see the affidavit of Mr Grant at “Tab 9” of exhibit “R-1”). Importantly, Mr Hilditch could not perform “fitter” duties.
A large part of Mr Hilditch’s arguments now, are that at that time, no action was taken by AHGS to provide “suitable” duties in line with his advice that he could return to work to perform office, driving, and similar duties, but not “fitter” duties.
This “complaint” appears in the ASOC which, as is set out above, was drafted with legal assistance. Notwithstanding this, the difficulty for Mr Hilditch is that AHGS’s obligation to provide reasonable adjustments was to enable him to perform the duties for the position for which he was employed. I will return to this below.
In the meantime, on 1 September 2011, Dr Visvalingam provided Mr Hilditch with a medical certificate declaring he was unfit for work between 1 September 2011 and 16 September 2011 inclusive because he was suffering from anxiety. Another certificate dated 16 September 2011 was provided by Dr Visvalingam for the period 17 September 2011 to 16 October 2011 inclusive (see the affidavit of Mr Grant at “Tab 10” of exhibit “R-1”).
It was not explained before the Court how this certificate was consistent with a further certificate from Dr Visvalingam dated 29 September 2011 (that is, well before 16 October 2011), that Mr Hilditch was fit to return to “permanently modified duties” (see the affidavit of Mr Grant at “Tab 12” of exhibit “R-1”).
This is particularly so, when on 24 October 2011, Dr Visvalingam provided a yet further medical certificate confirming his medication for what had been diagnosed as Mr Hilditch’s depressed mood and anxiety symptoms. In any event, a further WorkCover NSW Medical Certificate was issued by Dr Visvalingam on 24 October 2011, stating that Mr Hilditch was fit for “permanently modified duties”. That is “[f]it for office duties only. Cannot use tools or perform fitter duties. Not fit to work at AHG” (see the affidavit of Mr Grant at “Tab 12” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “G”).
On 19 December 2011 Dr Visvalingam provided another WorkCover NSW Medical Certificate, confirming that Mr Hilditch was fit for office duties but could not perform fitter’s duties or use tools (see the affidavit of Mr Grant at “Tab 13” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “H”).
In the context of his depression and anxiety, on 12 January 2012, Mr Hilditch saw Dr Graham George a consultant psychiatrist. This was for the purpose of obtaining a psychiatric assessment in relation to Mr Hilditch’s CGU Workers’ Compensation claim.
Dr George provided a report dated 13 January 2012 (see the affidavit of Mr Grant at “Tab 14” of exhibit “R-1”) (“the report”). This report is important in a number of ways in relation to the determination of the current case.
It is also necessary to note the following features of the report. There is no question as to Dr George’s relevant medical expertise. His “opinion” was “based entirely upon the evaluation of objective findings identified on 12 January 2012”. Although Dr George also “reviewed the available records and file data”, in addition to interviewing and examining Mr Hilditch (see page one of the report).
In cross-examination before the Court, Mr Hilditch was taken to this report. Mr Hilditch disputed key elements of the report, particularly as to what Dr George reported as having been said by Mr Hilditch.
In cross-examination, Mr Hilditch also confirmed that he had been examined on 12 January 2012 by Dr George, and had read the report at around the time he had received it. He gave evidence that he had never previously raised any issue that Dr George had made errors in what he had reported.
Relevantly, the report addresses the following. First, Dr George (at page 4) reports that Mr Hilditch said that after signing the Employment Agreement, he continued to work as a fitter until he was diagnosed with cancer in early 2011. Mr Hilditch believed that he had some capacity to return to work “but did not want to return”. Before the Court, at first Mr Hilditch did not dispute that he had said this to Dr George. However, his subsequent evidence was that he was “quite prepared to work”. This appeared to be inconsistent with his earlier evidence.
Second, Dr George reports that Mr Hilditch told him that (page four of the report):
“…that the main issue related to his current situation does not relate to the fact that he suffered a left fifth finger injury in 2009, with some limited flexibility in his finger subsequently, but related more to the circumstances related to the merger where he had to sign an agreement to be a fitter. He said he was not offered redundancy at the time. He said that the new merged company brought over a pre-delivery manager from Liverpool and that is why he was then offered a job as a fitter. He believed that redundancy at that time should have been offered to him.”
Mr Hilditch’s answer when this part of the report was put to him in cross-examination, was not to dispute that he had said this to Dr George, but rather to assert that he did have a problem with his hand.
Third, Dr George reports that “[h]e said he was not offered redundancy at the time”, and further, “[h]e believed that redundancy at that time should have been offered to him” (page 4 of the report). In context, this relates to the time he signed the Employment Agreement. Mr Hilditch’s answer to this line of questioning was encapsulated by the assertion that if his hand had been “okay” he would still be employed as a fitter.
This, as with answers to other similar questions, was not responsive to the question asked. In this light, it is appropriate to give greater weight to Dr George’s “contemporaneous” report of what Mr Hilditch said in January 2012, rather than his attempt now to press the proposition that as at January 2012, he was unable to return to work because he could not do the duties of the position because of the state of his left hand.
Fourth, the basis advanced in Dr George’s report as to Mr Hilditch’s “difficulty” as at January 2012 is encapsulated in the following (page 6 and 7 of the report):
“Mr Hilditch is a 62 year old man, who presents for psychiatric assessment in the context of not being able to return to work due to a sense of anxiety and depression in relation to the fact that he was not offered redundancy in 2010, when he believes he should have had the opportunity to have taken it. He said that it was never offered to him.
…
He feels aggrieved as a result and frustrated, angry and depressed about the fact that a redundancy was not offered to him at that time. He said he became aware of the fact that he could have been offered a redundancy in 2011 at some stage.”
Fifth, it is to be remembered that by January 2012, Mr Hilditch had been diagnosed with cancer and had been receiving treatment. Dr George was of the opinion that this “contributed substantially” to Mr Hilditch’s “adjustment disorder”. However Dr George also opined (at page 9 of the report):
“At the same time, there does appear to be a contribution, due to his sense of disappointment and frustration at not being offered redundancy”.
Ultimately, Mr Hilditch agreed before the Court that Dr George’s opinion was accurately based on what he had told Dr George. This included that (page 9 of the report):
“It does appear that the industrial issue is the main contributor to his psychological condition”.
In context of the entirety of Dr George’s report, the reference to “industrial issue” was a reference to Mr Hilditch’s disaffection with not being offered a redundancy in June 2010, which Mr Hilditch believed should have been offered to him.
In all therefore, given the state of Mr Hilditch’s evidence to the Court, particularly in cross-examination, I agree with AHGS that this provides support to AHGS’s proposition, put in these proceedings, that the basis of Mr Hilditch’s “complaint” to the Court does not arise from the DDA, but rather, his sense of grievance at not being offered a redundancy in June 2010.
It is to be remembered that the issue for consideration has been whether AHGS was required to provide, or could have provided, “reasonable adjustments” to Mr Hilditch’s situation, so that he could continue in some appropriately modified or “adjusted” fashion, to perform the position in respect of which he had been employed. After June 2010, that was the “fitters” position.
It is relevant in this immediate context to note what is set out above at [131] to [137]. It is also to be remembered that by January 2012, Mr Hilditch had already been diagnosed with, and was receiving treatment for, cancer which was plainly a factor affecting Dr George’s opinion of his psychological state.
However, some months prior to Dr George’s report, Mr Hilditch, amongst other medical matters, had consulted Dr Visvalingam, again in relation to a WorkCover assessment of his left hand injury. On 26 August 2011, Dr Visvalingam provided a second “final” WorkCover NSW Medical Certificate in relation to Mr Hilditch.
The certificate stated that Mr Hilditch’s employment was a substantial contributing factor to the “permanently stiff left litt[le] finger”. While the certificate stated that Mr Hilditch was “[f]it for permanently modified duties” from 26 August 2011, this was further explained that he was (as at, and from, 26 August 2011), “fit for office duties only. Cannot use tools or perform fitter duties” (see the affidavit of Mr Grant at “Tab 9” of exhibit “R-1”).
A further “final” certificate was issued by Dr Visvalingam on 29 September 2011 (see Mr Grant’s affidavit at “R-1” at “Tab 14” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “F”). This certificate repeated the statement that Mr Hilditch could not use tools or perform “fitter” duties. Relevantly, it also stated: “[d]epressed mood due to being asked to do fitter duties, when he was employed as a predelivery manager”. This plainly related back to the time of the signing of the Employment Agreement in June 2010.
A yet further “final” certificate was issued by Dr Visvalingam on 24 October 2011 (see the affidavit of Mr Grant at “Tab 12” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “G”):
“In my opinion, the worker’s employment is a substantial contributing factor to this injury: [‘yes’ box crossed]
Management Plan: finger repaired by Dr Fernandes. Underwent physiotherapy. Now has permanently stiff left litt[le] finger Depressed mood due to being asked to do fitter duties, when he was employed as a predelivery manager Feels traumatised by whole experience and feels anxious about thought of returning to work Referred to Mr Neil McDonald psychologist for help with this anxioety and depressed mood.
…
…Fit for office duties only. Cannot use tools or perform fitter duties. Not fit to work at AHG.”
[Errors in original.] [Emphasis added.]
Further “final” certificates dated 19 December 2011 (the affidavit of Mr Grant at “Tab 13” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “H”), and 19 March 2012 (the affidavit of Mr Grant at “Tab 16” of exhibit “R-1” and the affidavit of Mr Hilditch of 23 February 2015 at annexure “I”), in essence repeat these statements.
What is clear from these certificates, is that as at least from 26 August 2011, Mr Hilditch was unable to perform the duties of the “fitter” position in which he had been employed since June 2010. From 24 October 2011, the medical evidence was that he should not return to work, at all, for AHGS.
As set out above, a consistent feature of Mr Hilditch’s ASOC, which was drafted with legal assistance, is the complaint that at various times, AHGS breached its obligation under the DDA, because it failed to consult him “regarding any possible transfers to positions that were suitable as per the medical certificate” (see the ASOC at [63] – [64], [73] – [74], [78]).
These complaints misunderstand AHGS’s relevant obligation under the DDA. That obligation, with reference to Watts, was to make reasonable adjustments to Mr Hilditch’s situation so that he could continue to work in the position for which he was employed. That is, as from June 2010, the “fitter” position.
For the period from 26 August 2011 to the date of termination of employment (5 April 2012), AHGS was unable, given the medical evidence, to consider, or provide, reasonable adjustments so that Mr Hilditch could continue in his position as “fitter”. From 24 October 2011, the medical evidence was that he could not return to work for the respondent at all.
In relation to the remainder of the post-June 2010 period (and given that Mr Hilditch was diagnosed with, and receiving treatment for cancer from January 2011), from June 2010 to January 2011, on the evidence before the Court, Mr Hilditch provided no medical certificates to support the proposition that he could not fully perform the “fitter” position, and made no request for any adjustment to his situation.
It is, in my view, clear on the evidence that the matter of the change in position in June/July 2010 was a critical event for Mr Hilditch. His evidence, and submissions, and further supported by Mrs Hilditch’s evidence, was that, in essence, AHGS failed in its duty of care, because on signing the Employment Agreement, AHGS did not provide him with a medical examination as envisaged in the Employment Agreement. His evidence was that had this occurred, he would not have continued to work at AHGS’s business after June/July 2010. This was said to be because any medical examination would have shown his “hand was no good”.
As set out above, this does not explain why he signed the Employment Agreement, or why he did not obtain some relevant medical evidence, as he had been subsequently advised by Mr Duncan to do. The question that arises is why he wanted a medical examination to be done in June/July 2010, at the instigation of AHGS, and not on his own initiative.
In my view, the answer to that question, consistent with the clear evidence given by Mrs Hilditch in cross-examination, was that what Mr Hilditch (and for that matter Mrs Hilditch) wanted, as at June/July 2010, was a redundancy package. Mr Hilditch’s own evidence was that he could not understand why redundancy was offered to at least one other person, but was not offered to him from June/July 2010. A medical examination instigated by AHGS, instead of on his own initiative, would have been seen by Mr Hilditch, as strengthening his position in relation to a redundancy.
The circumstances set out above can be reduced to the following. Mr Hilditch made an application to this Court alleging both direct and indirect discrimination under the DDA by AHGS during the period of his employment from January 2009 to 5 April 2012.
While there was some dispute as to the title of Mr Hilditch’s position, as at January 2012, the date of Dr George’s psychiatric report, even taking Mr Hilditch’s description, the position he occupied in his employment involved what he described as “management”, meaning the execution, of tasks relevant to the preparation of motor vehicles prior to delivery to the customers of AHGS.
In January 2009, while employed in this position, he suffered a workplace injury resulting in substantial damage to a finger on his left hand. He underwent an operation and was absent from work for a period of time.
In an ASOC prepared with legal assistance, and filed in these proceedings on 13 April 2015, Mr Hilditch identified this workplace injury as the basis for the discrimination he says he suffered at the hands of AHGS.
While Mr Hilditch was absent from work for some little time, within three months he was fit to return to full-time duties in the position for which he was employed.
While he now claims that the injury to his left hand increasingly affected his well-being, I find on balance that he made no complaint to any relevant supervisor, or manager of AHGS. Nor did he provide any medical evidence to support any such claim during the period up to June/July 2010 when his employment position was changed. In light of the evidence, there was no need, during this period, for AHGS to take steps to provide reasonable adjustments other than the “adjustments” that were provided in his graduated return to work.
In June/July 2010, following a restructure of AHGS’s operations, Mr Hilditch was offered a different position, that of a “fitter”, which involved mechanical work, requiring the use of tools.
Mr Hilditch now submits that he only signed the Employment Agreement, that is, he gave his “agreement” to it, because he expected he would be given a medical examination at the instigation of AHGS, which would lead to his disability (the hand injury), providing the basis for a redundancy offer.
On the evidence, and in the circumstances presented, that claim is now put to explain the inconsistency obviously inherent in signing a contract in June/July 2010 to be employed in a “fitter” position, which Mr Hilditch now says he was unable to perform.
I accept on the evidence that Mr Hilditch wanted the offer of a redundancy in June/July 2010. I accept AHGS’s submission now, that its “failure” to give him a redundancy, as it (presumably) did to other employees, created a “grievance” on the part of Mr Hilditch with his employer which informs, at the very least in part, the reason as to why he instigated the current proceedings some years after the termination of his employment.
On the evidence, Mr Hilditch proceeded to fulfil the duties of a “fitter”. The evidence of Mr Duncan, his supervisor, was that Mr Hilditch was a “diligent and satisfactory worker” ([21] of the affidavit of Mr Duncan). The need for reasonable adjustments again did not arise during the period following Mr Hilditch’s agreement to perform the tasks of the position of “fitter”, until he was the subject of a number of medical certificates which stated his inability to perform the function of a “fitter”, and then ultimately his inability to return to work for AHGS at all.
While Mr Hilditch’s submission is that AHGS did not offer him any other role in its organisation, as is made clear in Watts, the issue is one of reasonable adjustments to the person’s situation to perform the position for which they had been employed. This was plainly not possible given the series of medical certificates (see above), which provided that he was unfit to perform the “fitter” duties.
In these circumstances, no reasonable adjustments could have been made by AHGS. In relation to direct discrimination therefore (s.5 of the DDA), Mr Hilditch’s application to the Court is not made out.
I should note, and this was not disputed by Mr Hilditch, that AHGS, through Ms Sen, did take steps to ascertain whether alternative employment could be offered to him (see the affidavit of Ms Sen at paragraphs [16], [18] - [19], [23], [26], [32] - [33]).
However, as AHGS properly understood, such action does not come within what is contemplated by s.5(2) of the DDA. Nor, on the other hand, does the lack of success of AHGS’s efforts assist Mr Hilditch’s case now, in revealing that AHGS failed to provide him with reasonable adjustments, as that term is understood in light of Watts.
As set out above, the ASOC also alleges that AHGS breached s.6(1) of the DDA. That breach, on the pleading, is said to have been that AHGS discriminated against Mr Hilditch by making it a condition precedent, or a requirement of his employment contract, that he be fit to undertake his pre-injury duties while knowing that his disability prevented this.
First, and as set out above, an inescapable fact for Mr Hilditch now is that at the time of signing the employment contract in June/July 2010, he did so voluntarily. That is, he signed a contract to perform work as a fitter. If he had some ongoing difficulty at that time, the inconsistency in his conduct in signing the contract weighs against him now.
Second, I do not accept, on the evidence, that AHGS “knew” as at June/July 2010, that Mr Hilditch was unable to perform the duties of the position he was being offered. If Mr Hilditch was unable to do so he must bear some responsibility for not taking the appropriate steps, at that time, to obtain the relevant medical evidence.
Third, I agree with AHGS’s submission that in the period prior to June/July 2010, some mechanical duties requiring the use of tools was a reasonable requirement. This is so given that Mr Hilditch had returned to work from his injury, and on the evidence had been performing these duties. In that light, s.6(3) of the DDA operates now to the advantage of AHGS.
Fourth, I take into account that Mr Hilditch is a lay person with little or no legal understanding. However, even in this light, he made no effort in the presentation of his case to reveal that there was any basis to the claim of indirect discrimination as the pleading suggests. Nor did any relevant indication arise, such as to say, in the circumstances as ultimately presented by the evidence in this case, that indirect discrimination occurred. In this light, it is not necessary to consider particular “b”, that is, that the applicant was “disadvantaged” by AHGS not providing him “ongoing work” and also “terminating his employment” because he “would not comply with the requirement or condition” of the Employment Agreement ([91] of the ASOC).
The ASOC also pleads a breach of s.15 of the DDA. As this is dependent on the breaches alleged in relation to ss.5 or 6 of the DDA being made out, the allegation relating to s.15 is also not made out.
Conclusion
The application to the Court is to be dismissed. I will make the order accordingly.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 29 May 2017
Schedule 1
| Affidavit | Part | Objection | Disposition |
| David Hilditch, Retired, affirmed 23 February 2015 | Annexure J | Attempt to give evidence from another witness | Not admitted |
| Annexure K | Relevance | Admitted subject to relevance | |
| Annexure L | Relevance | Admitted subject to relevance | |
| Annexure M | Relevance | Admitted subject to relevance | |
| Annexure N | Relevance | Admitted subject to relevance | |
| Annexure O | Relevance | Admitted subject to relevance | |
| Annexure Z-1 | Relevance | Not admitted | |
| Annexure Z-2 | Relevance | Not admitted | |
| Annexure Z-5 | Relevance | Not admitted | |
| Annexure Z-6 | Relevance | Not admitted | |
| Annexure Z-7 | Relevance | Not admitted | |
| David Hilditch, Retired, affirmed 14 August 2015 | Annexure B page 7 | Relevance | Not admitted |
| Annexure D pages 7 – 11 | Relevance | Not admitted | |
| Roslyn Allison Hilditch, DSS Pensioner, affirmed 9 October 2015 | Annexure A | Paragraph 1 – relevance Paragraph 2 – relevance Paragraph 3 – relevance and hearsay Paragraph 4 – commentary on another witness’s statement Paragraph 5 – submissions and commentary Paragraph 7 – relevance Paragraph 8 – | Not admitted Not admitted Not admitted Not admitted Admitted Not admitted Not admitted |
| Annexure B | Relevance | Not admitted | |
| Annexure C | Relevance, hearsay, submissions | Not admitted | |
| Annexure D | Relevance, submissions | Not admitted |
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