Hollingdale v North Coast Area Health Service

[2006] FMCA 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOLLINGDALE v NORTH COAST AREA HEALTH SERVICE [2006] FMCA 5

HUMAN RIGHTS – Disability discrimination – termination of employment – applicant with bi-polar disorder and keratoconus – applicant’s behaviour leading to suspension and disciplinary action – change of duties – applicant refused to perform new duties allegedly due to vision problems – applicant refused direction to attend work due to asserted medical condition – applicant then dismissed – applicant’s behaviour requiring action taken against her by the employer – no unlawful discrimination.

Disability Discrimination Act 1992 (Cth), ss.5, 15
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Industrial Relations Act 1996 (NSW), s.130

Beck v University of Wisconsin Board of Regents 75 F.3d 1130 (7^th Cir. 1996)
Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603
Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970
Commonwealth v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469
Commonwealth of Australia v Humphries (1998) 86 FCR 324
Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811
Forbes v Commonwealth [2004] FCAFC 95
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Purvis v State of New South Wales (2003) 202 ALR 133
Tate v Rafin [2000] FCA 1582

Applicant: JULIE ANNE HOLLINGDALE

Respondent: NORTH COAST AREA HEALTH SERVICE

File Number: SYG2730 of 2004

Judgment of: Driver FM

Hearing dates: 27-29 June, 1& 29 July, 13 & 22 September 2005

Date of Last Submission: 13 December 2005

Delivered at: Sydney

Delivered on: 20 January 2006

REPRESENTATION

Counsel for the Applicant: Mr M Perry

Solicitors for the Applicant: Lee Sames Egan

Counsel for the Respondent: Ms K Eastman

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2730 of 2004

JULIE ANNE HOLLINGDALE

Applicant

And

NORTH COAST AREA HEALTH SERVICE

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging unlawful disability discrimination in employment. The case was transferred from the Federal Court to this Court by order of Beaumont J on 17 August 2004. His Honour took into account the ability of this Court to sit in locations other than Sydney. Both the applicant and the respondent are located on the North Coast of New South Wales and most of the witnesses were located in the Northern Rivers district. The trial of the matter was conducted at Lismore and Sydney.

2. Ms Hollingdale suffers from a bi-polar mental disorder and also suffers from keratoconus (a condition related to cataracts of the eyes).  She asserts that the Area Health Service discriminated against her on the grounds of both disabilities in the course of her employment and by terminating her employment.

3. The general background facts are conveniently set out in the letter dated 22 May 2003 from the delegate of the President of HREOC to Ms Hollingdale’s solicitor dealing with the complaint.  Ms Hollingdale was employed by the Area Health Service as a clinical psychologist.  Her employment commenced on 31 May 1990 and extended for about 12 years.  Ms Hollingdale states that in around August 2001 the Area Health Service alleged that her behaviour in the workplace was inappropriate.  She states that the Area Health Service refused to allow her to work in her substantive position as a clinical psychologist even though she was certified fit to do so.

4. Ms Hollingdale alleges that from December 2001 she was forced by the Area Health Service to work as a project officer.  She states that this work was not suitable for her as it required her to work constantly on a computer which was difficult for her because of her vision disability.  Ms Hollingdale alleges that the Area Health Service refused to accept her general practitioner’s certificate which stated that computer work aggravated her visual disability.

5. Ms Hollingdale was dismissed from her employment at the Area Health Service in August 2002.  Ms Hollingdale asserts that she was treated less favourably in her employment due to her disabilities.  Her complaint to HREOC focused upon a process of disciplinary action taken against her, leading ultimately to her dismissal. 

6. The Area Health Service responded to the complaint to HREOC by explaining that between May and July 2001 it became concerned about Ms Hollingdale’s behaviour at work.  The Area Health Service stated that Ms Hollingdale was “hostile and aggressive” towards Area Health Service employees and community members during this period.

7. The Area Health Service told HREOC that on 23 July 2001 a letter of concern was written to the New South Wales Psychologists’ Registration Board in relation to Ms Hollingdale’s behaviour.  The Area Health Service states that it provided Ms Hollingdale with alternative duties as a project officer pending investigation by the Registration Board.  The Area Health Service stated that it made several attempts to accommodate Ms Hollingdale’s disability in the project officer position, including reducing her working hours.  The Area Health Service told HREOC that the duties of the project officer position were varied and did require computer work but there were other duties which did not involve computer work.  The Area Health Service told HREOC that at no time when working as a psychologist, when she was required to use a computer, did Ms Hollingdale advise the Area Health Service that she had a visual disability.

8. The Area Health Service denied that Ms Hollingdale’s disabilities were a factor in their decision to terminate her employment.

9. The complaint to HREOC was terminated because there was no prospect of resolving the matter through conciliation.

The application and supporting evidence

1. Ms Hollingdale relies upon her application and amended points of claim filed on 24 December 2004. Ms Hollingdale claims that she suffered two significant manic episodes as a result of her mental disability in 1993 and 2000 as a result of which she was hospitalised for a time. However, she denies any serious manic episodes since that time. Ms Hollingdale asserts that between April 2001 and June 2001, after she had returned to her normal duties as a clinical psychologist with the Area Health Service, she was required to become substantially involved in the management of two complex and controversial cases. Additionally or alternatively, Ms Hollingdale asserts that during 2001 the Area Health Service imposed unreasonable work demands upon her. Ms Hollingdale asserts that in the result, the Area Health Service was critical of her work performance. Ms Hollingdale asserts that the imposition of unreasonable work demands and the requirement to deal with the difficult cases after May 2001 was in breach of s.5(1) and s.15(2)(b) of the Disability Discrimination Act 1992 (“the DDA”). Ms Hollingdale claims she suffered health problems as a result. Ms Hollingdale claims that in July 2001 the Area Health Service instructed her not to come back to work because of concerns about her mental and physical health and required a medical clearance for her to return to work. She asserts that the Area Health Service also arranged for her to see a psychiatrist. These requirements are also said to involve breaches of ss.5(1) and 15(2)(d) of the DDA.

2. The same sections are alleged to have been breached by the Area Health Service’s human resources manager demanding a meeting with Ms Hollingdale on 12 July 2001, by letter dated 17 July 2001 requesting Ms Hollingdale to attend two medical appointments concerning her fitness for work; a further letter dated 6 August 2001 concerning a further medical examination; a further allegation on or about 17 August 2001 of refusing to obey reasonable directions; a letter dated 20 August 2001 from the Chief Executive Officer of the Area Health Service suspending Ms Hollingdale from duty; the appointment of an independent investigation officer advised by letter dated 17 September 2001; the alleged failure to consider properly Ms Hollingdale’s expressed grievances; a letter from the Area Health Service to the Psychologists’ Registration Board dated 5 December 2001; a direction made on or about 18 December 2001 requiring Ms Hollingdale to return to work in a project officer position; a further letter dated 3 January 2002 asserting that Ms Hollingdale had abandoned her employment; the alleged inappropriate work arrangements put in place on and from 15 January 2002 by the Area Health Service; a requirement made on or about 26 March 2002 that Ms Hollingdale attend a formal disciplinary interview following her return to work under the auspices of an agreement following proceedings before the NSW Industrial Relations Commission; the alleged unfair conduct of the disciplinary interview and delegation of Ms Hollingdale’s supervision; the refusal by the Area Health Service to pay Ms Hollingdale’s airfares and permit her to attend resumed proceedings before the Commission on 24 April 2002; the issuing of a “formal warning” on 11 April 2002; the Area Health Service disputing a medical certificate in relation to Ms Hollingdale’s visual disability and directing her to return to work on 23 July 2002; further threats of disciplinary action on or about 31 July and 6 August 2002; the laying of a complaint by the Area Health Service with the Health Care Complaints Commission on or about 12 March 2003; all of which Ms Hollingdale asserts caused her economic and non economic loss.

3. At the commencement of the second day of the trial Mr Perry sought and was granted leave to further amend Ms Hollingdale’s points of claim by deleting several claims and by amending the claim by adding certain words.  I made those amendments by hand on the amended points of claim document filed on 24 December 2004.  I titled this document as amended “the applicant’s second further amended points of claim”.  Ms Hollingdale’s claims, as finally amended, are as follows:

   1.At all material times, since 31 May 1990, the applicant was employed by the respondent, or its predecessors, as a clinical psychologist.

   2.At all material times, the respondent has been a body corporate constituted under s.17 and Schedule 1 of the Health Services Act 1997 (NSW).

   3.At all relevant times, the applicant suffered a disability within the meaning of s.4 of the Disability Discrimination Act 1992 (Cth) (“the Act”), namely bi-polar mood disorder (“the disability”).

   4.In 1993, the applicant suffered an episode of the disability requiring her hospitalisation at the Currumbin Clinic, Queensland and time off work of approximately one month.  The applicant then returned to normal duty as a clinical psychologist with the respondent.

   5.In about March 2000, the applicant suffered an episode of her disability and exerted every effort to manage it appropriately including seeking assistance from the respondent and registered medical practitioners.  As a result of such episode, the applicant was admitted to Mullumbimby Hospital between 5 February 2000 – 10 February 2000 and required an overall period off work of approximately 8 weeks.  At all relevant times, the respondent was concerned and/or embarrassed by the admission to Mullumbimby Hospital.

   Particulars

   See applicant’s affidavit, sworn 19 June 2003 and filed 24 June 2003 (applicant’s affidavit) paras 21-33 and paras 39-47 and 85.

   6.Upon the applicant’s return to work on or about April 2000, following the matters referred to in 5 above, the applicant returned to her normal duties as a clinical psychologist.

   7.Between about April 2001 to about June 2001, the applicant was required by the respondent to become substantially involved in the management of two complex and controversial cases/patients.

Particulars

(a)The case of [a mother with suspected Munchausen by Proxy Syndrome] and her son (applicant’s affidavit paras 58-98).

(b)The case of [a mother with serial murder convictions] (applicant’s affidavit paras 100-104).

8.Additionally or alternatively, during 2001, the respondent imposed unreasonable work demands upon the applicant.

Particulars

Between approximately May – approximately August 2001, the respondent required the applicant to undertake “in take duties” involving clients attending local community health centres whilst also requiring the applicant to be in attendance at certain team meetings (applicant’s affidavit paras 105-106).

9.As a result of the matters alleged in paragraphs 5, 7 and 8 above, the respondent was critical of the applicant in relation to her work performance relevant thereto.

Particulars

See applicant’s affidavit paras 85-87 and 108-112.

10.The applicant suffered health problems unrelated to the disability and was unfit for work for one day on 11 July 2001.

Particulars

(a)    Rash/swelling.

(b)    See applicant’s affidavit paras 119-130.

11.At or about the time the applicant reported to the respondent the matters referred to in paragraph 10 above, the respondent instructed the applicant not to come back to work because the respondent was concerned about her mental and physical health and that a medical clearance was required for her to return to work.  Further, the respondent arranged for the applicant to see a psychiatrist qualified by the respondent.

Particulars

see applicant’s affidavit paras 125-134.

12.The requirements referred to in 11 above, for the applicant to provide the medical clearance and attend upon the psychiatric examination were in breach of s..5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and/or subjecting the applicant to detriment were on the grounds of the applicant’s disability.

13.On 12 July 2001, the respondent’s Human Resources Manager from Lismore attended at the applicant’s workplace demanding a meeting with the applicant and arranging for two mental health workers to attend upon her for assessment purposes.

Particulars

See applicant’s affidavit paras 136-161.

14.The demand and arrangement referred to in 13 above were in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

15.As a result of the matters referred to in paragraphs 11-14 above, the applicant suffered health problems unrelated to her disability, namely stress/anxiety and was marked unfit for work 13 July 2001 – 13 August 2001.

Particulars

See applicant’s affidavit para 163.

16.On 17 July 2001, the applicant received a letter from the respondent again requesting her to attend two medical appointments on 25 July 2001 and 14 August 2001 in order to purportedly determine her fitness to return to work and alleging certain inappropriate behaviour and noting that the matter was being referred to the New South Wales Psychologists’ Registration Board.

Particulars

See applicant’s affidavit paras 164-170.

17.The request and/or the allegations and/or the reference referred to in 16 above, was/were in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

18.On 6 August 2001, the respondent again wrote to the applicant requesting her to attend a medical examination on 14 August 2001 to assess her fitness to return to work.

Particulars

See applicant’s affidavit para 171.

19.The request referred to in 18 above was in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and/or subjecting the applicant to detriment was on the grounds of the applicant’s disability.

20.On 17 August 2001, the applicant was suspended from work resulting in a further allegation being made against her by the respondent of refusing to obey reasonable directions.

Particulars

See applicant’s affidavit para 173

21.The allegation referred to in 20 above was in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

22.On 20 August 2001, the respondent delivered a letter from its Chief Executive Officer, to the applicant, alleging certain inappropriate behaviour on the part of the applicant, requesting a formal explanation by 31 August 2001 and confirming the suspension of the applicant from duty and ordering the applicant not to present herself in the vicinity of the Mullumbimby and Byron Bay community health centres or to contact any employees without prior permission.

Particulars

See the applicant’s affidavit paras 174-181.

23.The allegations, requests, suspension and orders referred to in 22 above were in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

24.On 17 September 2001, the respondent wrote to the applicant noting her explanation to the letter of 20 August 2001 (referred to in paragraph 22 above) and appointing an “independent investigation officer to conduct an investigation in accordance with the principles of natural justice” and continuing the suspension and orders referred to in paragraphs 20 and 22 above.

Particulars

See applicant’s affidavit, paras 183-187.

25.The suspension and orders referred to in 24 above were in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

26.The applicant’s letter of explanation, referred to in 24 above and dated 27 August 2001, contained, inter alia, grievances she raised against the respondent and certain of its officers.  The respondent did not fairly consider the applicant’s grievances.

Particulars

See applicant’s affidavit paras 180-181 and 188-201.

27.The failure of the respondent to fairly consider the applicant’s grievances involved a breach by the respondent of ss.5(1) and 15)(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

28.On 5 December 2001, the respondent wrote to the Psychologists’ Registration Board enclosing a statutory declaration “regarding concerns about Ms Hollingdale’s ability to practice as a psychologist”. 

Particulars

See applicant’s affidavit para 203.

29.The report/letter from the respondent to the Psychologists’ Registration Board was in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment was on the grounds of the applicant’s disability.

30.On or about 18 December 2001, the applicant received a letter from the respondent, bearing that date, advising her that her suspension was lifted effected 20 December 2001 and requesting her to return to work as a project officer under the direct supervision of the area manager and advising that a “formal disciplinary interview will be scheduled after you return to work”.

Particulars

See applicant’s affidavit paras 204-207.

31.The direction by the respondent for the applicant to return to work as a project officer under the direct supervision of the area manager and with a formal disciplinary interview upon return to work was/were in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

32.On or about 3 January 2002, the applicant received a letter from the respondent dated 3 January 2001 (sic) noting that she had failed to attend for work on 20 December 2001 and requiring a formal explanation as to why she had abandoned her place of employment by 14 January 2002 failing which a process would be commenced “for you having abandoned your employment”.  The applicant, by letter 9 January 2002, responded to the above letter providing such explanation and also asking for an explanation as to why she could not return to her normal job.

Particulars

See applicant’s affidavit paras 214-216.

33.The letter from the respondent to the applicant dated 3 January 2001 (sic) and/or the material it contained, involved breaches by the respondent of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of the applicant’s disability.

34.The applicant presented for work on 15 January 2002 and met with the respondent’s area manager to discuss the return to work proposed by the respondent as a project officer.  The nature of the work, and the facilities provided therefore, were unsuitable and inappropriate for the applicant in her circumstances and she was only able to last one day – 15 January 2002 in such duties.

Particulars

See applicant’s affidavit paras 218-223.

35.At all relevant times, the applicant suffered a second disability, other than that disability referred to in paragraph 3 hereof, namely, impaired vision with keratoconus or conical cornea and retinal detachment of the right eye (“the second disability”). The second disability is a disability within the meaning of s.4 of the Act.

36. The applicant returned to work on 26 March 2002. In accordance with an agreement under the auspices of Commissioner Murphy of the New South Wales Industrial Relations Commission in the context of dispute proceedings under s.130 of the Industrial Relations Act 1996 (NSW) the applicant reported to Sue Belsham, the respondent’s Director of Clinical Services – Operations. However, upon so reporting, the applicant was advised that Ms Belsham had “delegated your supervision and work placement to Mr Richard Buss, Area Manger, Mental Health Services”. On the day of such return, the applicant was required to attend a formal disciplinary interview which was conducted in an unfair manner to the applicant.

Particulars

See applicant’s affidavit paras 239-246.

37.The delegation of the applicant’s supervision and the unfair conduct of the said interview referred to in paragraph 35 involved breaches by the respondent of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment were on the grounds of either or both of the applicant’s disabilities.

38.After the applicant’s return to work in March 2002, she experienced difficulties insofar as her second disability was concerned, having regard to the continuance, until 11 April 2002, of the unsuitable and inappropriate nature of work and facilities provided.

Particulars

See applicant’s affidavit paras 246-252.

39.The said continuance referred to in paragraph 38 above involved breach by the respondent of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment was on the grounds of either or both of the applicant’s disabilities.

40.The dispute proceedings in the New South Wales Industrial Commission referred to in paragraph 36 above, were to resume on 24 April 2002 and the applicant, by letter 10 April 2002, requested permission to attend this and full payment of her airfares.  Such permission was declined.

Particulars

See applicant’s affidavit at para 253.

41.The declining of the permission referred to in paragraph 40 above was in breach of ss.5(1) and 15(2)(d) of the Act.

42.On or about 11 April 2002, the applicant received a letter from the respondent, bearing that date issuing a “formal warning” in relation to the allegations made against her and ordering the applicant to continue at work upon a number of conditions.

Particulars

See applicant’s affidavit paras 254-259.

43.The “formal warning” and directions referred to in paragraph 42 above involved breaches by the respondent of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment was on the grounds of either or both of the applicant’s disabilities.

44.Between April and 15 July 2002, the applicant continued in her project officer duties but, having regard to her second disability, was having difficulty in doing so and saw Dr Taylor on that day who certified her unfit for duties involving the constant use of computers until 15 August 2002.  The respondent then indicated to the applicant that it considered the certificate to be “dubious” and directed the applicant to return to work on 23 July 2002 requesting her to seek clarification from Dr Taylor.  After seeking such clarification, the applicant did not return to work on 23 July 2002.

Particulars

See applicant’s affidavit paras 265-273.

45.The respondent’s indication to the applicant of the certificate being “dubious” and, nevertheless, directing her to return to work involved breaches by the respondent of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment was on the grounds of either or both the applicant’s disabilities.

46.Having regard to medical advice, the respondent’s insistence on the applicant complying with requirements or conditions and the applicant’s inability to so comply, because of her second disability, the applicant did not return to work on 23 July 2002 whereupon the respondent wrote to the applicant on 31 July and 6 August 2002 requesting an explanation for her absence from work, threatening disciplinary action and requiring her to return to work by 6 August 2002.  The applicant did provide the requested explanation, relevantly pointing out that the extant medical certificate was current to 15 August 2002.  This letter from the applicant was not acknowledged but the applicant did receive a further letter from the respondent dated 12 August 2002 purporting to dismiss her from her employment with the respondent effective on that date.

Particulars

See applicant’s affidavit paras 274-279.

47. The said request for explanation, threatening of disciplinary action, direction to return to work and termination of the applicant’s employment with the respondent involved breaches by the respondent of ss.5(1) and 15(2)(c) and 15(2)(d) of the Act as the treatment or proposal to treat and/or terminating the applicant’s employment and subjecting the applicant to detriment was on the grounds of either or both of the applicant’s disabilities.

48.On or about 12 March 2003, the applicant received a letter from the Health Care Complaints Commission bearing that date, noting that a complaint had been laid against her by the respondent alleging:

1.     There were several incidences when your behaviour was inappropriate during a period between May 2001 and December 2001.

2.     You failed to comply with directions to attend a psychiatric assessment.

3.     You suffer from an impairment, bi-polar disorder.

The above letter from the Commission went on to advise the applicant that the Commission had proposed to prosecute the complaint as a complainant before a disciplinary body pursuant to the Health Care Complaints Act 1993 (NSW). As a result the complaint was referred to the Impaired Psychologists Panel of the Psychologists’ Registration Board which found that the applicant did not have any impairment to affect her ability to practice as a clinical psychologist

49.The complaint laid by the respondent to the Health Care Complaints Commission was in breach of ss.5(1) and 15(2)(d) of the Act as the treatment or proposal to treat and subjecting the applicant to detriment was on the grounds of either or both of the applicant’s disabilities.

50.As a result of the matter aforesaid, the applicant had sustained injury, loss and damage and claims compensation/redress/damages for:

a)Pain and suffering/loss of amenity of life.

b)Out of pocket expenses presently totalling $30,639.00 (particularised to respondent in separate document titled “Synopsis of Damages”).

c)Economic loss (particulars to the respondent in separate document “Synopsis of Damages”) - $134,626.00.

51.    The applicant also claims:

i)An order requiring the respondent to employ or re-employ the applicant.

ii)Interest pursuant to s.51A, Federal Court Act 1976 (Cth).

iii)Such other orders as to this Honourable Court seems appropriate.

iv)Costs.

1. Ms Hollingdale relies upon her own affidavits made on 19 June 2003 (filed on 24 June 2003), 30 August 2004 (filed on 2 September 2004) and 10 January 2005 (filed on 14 January 2005).  Ms Hollingdale also relies upon the affidavits of Jolene Elizabeth Hughes made on 23 June 2004 (filed on 24 June 2004) and 30 August 2004 (filed on 31 August 2004), the affidavit of Dr Gregory Pearson made on 24 September 2004 (filed on 11 October 2004), the affidavit of Dr Chris Pollack made on 12 August 2004 (filed on 31 August 2004), and the affidavit of her daughter Larissa Tilocca made on 14 August 2004 and filed on 31 August 2004.

Julie Anne Hollingdale

1. In her first affidavit Ms Hollingdale recites the history of her disabilities and her employment by the Area Health Service.  She asserts the facts supporting her claim of disability discrimination and also asserts the loss suffered by her.  In her second affidavit Ms Hollingdale responds to the affidavits of Janne Boot made on 12 September 2003 and 23 June 2004, the affidavit of Richard John Buss made on 21 June 2004 and the affidavit of Warren Donald Shaw made on 21 June 2004.  In her third affidavit Ms Hollingdale details her efforts to mitigate her economic loss and updates the evidence as to her state of mind. 

2. The affidavit evidence relied upon by Ms Hollingdale was the subject of argument at an interlocutory hearing on 17 June 2005 and also at the commencement of the trial on 27 June 2005.  I ruled that I would receive the evidence notwithstanding objections as to form and based on asserted hearsay, although I would have regard to the weight to be attached to the evidence and the reliability of it.  I also ruled that, with the exception of the evidence of Dr Pollack and Dr Pearson, I would not treat the documents annexed to the affidavits as medical opinion evidence.  I ruled that I would receive medical certificates and other evidence of medical attendance as evidence of the fact of those certificates and attendances.

3. Ms Hollingdale was cross-examined at length upon her affidavits.  Ms Eastman invited her to explain how the disciplinary process she was subjected to was different from the disciplinary process that would have applied but for her disability.  Ms Hollingdale stated that she believes that after behavioural allegations were made against her, but for her disability, there would have been a rapid disciplinary process and a mediation.  She would not a have been subject to a mental health assessment and the Area Health Service would have discussed its concerns with her.  She would have had the right to disagree with her supervisor and have the issue dealt with by a more senior officer.  Ms Hollingdale denied that she was making any assumptions about “normal procedures”.  She said that she based her view on the protocols of the Area Health Service.  She asserted that the Area Health Service departed from its usual protocols in her case.

4. Ms Hollingdale accepted that the Area Health Service was under an obligation to deal with complaints or concerns about the fitness or behaviour of its professional staff but asserted that the Area Health Service unjustifiably delayed the disciplinary process.  Ms Hollingdale admitted that she refused to attend an assessment by a psychiatrist.  She said that she refused to attend particular appointments with a particular practitioner.  She had attended other assessments.

5. Ms Eastman asked Ms Hollingdale about the organisational requirements in the workplace and the role of Mr Shaw.  Ms Hollingdale said that while Mr Shaw had organisational responsibilities over her, he was not her clinical supervisor. 

6. Ms Eastman also invited Ms Hollingdale to identify from the code of practice annexed to the affidavit of Ms Boot made on 23 June 2004 what procedures she asserts were not followed.  Ms Hollingdale asserted that none of the procedures in paragraph 4.7.5 of the code (page 59 to the affidavit) were followed with the exception of those in sub paragraph (a).  Ms Hollingdale asserted that it was her belief that the procedures were not followed because of her mental disability but that she could not say what was in the mind of her employer.  She also asserted that sub paragraph (a) of paragraph 4.7.6 of the procedures was not followed.

7. Ms Eastman asked Ms Hollingdale about surgery to her left eye.  Ms Hollingdale said that she had had surgery to her left eye in 2002.  Later she confirmed earlier surgery to the left eye in about 1998, and also surgery to her right eye in 1985.

8. Ms Eastman asked Ms Hollingdale about the treatment she received for her bi-polar disorder after she was discharged from hospital in 2000.  She stated that she saw her general practitioner Dr Bowles, or another general practitioner, at the Meadows Clinic at Mullumbimby from time to time as she felt necessary.  She stated that she also saw Dr Pearson several times.  Ms Hollingdale also admitted requesting a referral to Dr Braganza in 2001.  She stated that she took a range of medications including lithium and Prozac. 

9. Ms Eastman asked a series of questions of Ms Hollingdale about a particular case of unusual difficulty handled by the Area Health Service in 2001.  I made a non publication order to protect the confidentiality of the patients of the Area Health Service.  The case concerned a mother and child.  The NSW Department of Community Services was involved in the case.  Ms Hollingdale formed the view that the mother of the child suffered from Munchhausen by proxy syndrome and had concerns about the welfare of the child and concerns about the handling of the case by DOCS.  Ms Hollingdale agreed that she considered that the case officer at DOCS (a Mr Orr) should be taken off the case as she believed he was not handling it properly.  Ms Hollingdale admitted expressing that view to another officer at DOCS.  She also admitted attending a meeting with officers from DOCS where she expressed critical views and also put her views concerning Munchhausen by proxy syndrome.  She denied a suggestion that her behaviour at the meeting had been inappropriate.  She admitted discussing the case with Mr Shaw.  She denied being preoccupied with the case in May 2001.  She admitted being very concerned about what she described as DOCS’ inactivity.  She denied being “obsessed” with the case.

10. Ms Eastman asked Ms Hollingdale about the events at work on 30 May 2001.  Ms Hollingdale agreed that she arrived at work late but she denied being angry, agitated or hostile.  She agreed that she had a discussion with Mr Shaw and asserted that he had behaved inappropriately and that he later apologised.  Ms Hollingdale denied Mr Shaw’s recollection of that discussion as set out in his affidavit.  Ms Hollingdale denied being hostile to other staff at the time.  Ms Eastman showed Ms Hollingdale the letter forming annexure JAH6 to her first affidavit.  She agreed that the letter was a critique of Mr Orr’s record of the case conference meeting they had both attended.  She disagreed that the letter was “high handed”.  Ms Hollingdale said that Mr Shaw had suggested that she tone down the letter and that she had done so.  Ms Hollingdale agreed that she took two days leave after she had sent the letter.  She said that she had been unwell.  Ms Hollingdale denied that she refused further involvement in the case involving the mother and child and said that she was never the case manager within the Area Health Service for the case. 

11. Ms Eastman asked Ms Hollingdale about events at work on 5 July 2001.  Ms Hollingdale denied absenting herself from the workplace except for a period of 15 minutes when she inspected a car outside the workplace. 

12. Ms Eastman asked Ms Hollingdale about a conflict between herself and her neighbour, a Mr Russell.  Ms Hollingdale admitted that there had been some conflict but denied Mr Shaw’s recollection of conversations concerning that conflict.  Ms Hollingdale agreed that mutual apprehended personal violence orders had been obtained from the Local Court.  She denied that Mr Russell had claimed that she was mentally unwell.  She denied that she had threatened to “get” her neighbours.  She denied a suggestion that she kept a firearm in her home.  Ms Hollingdale admitted that she was away from work on 11 July 2001 and that she had had a conversation with Mr Shaw at about 7.00pm on that day when she had used the word “bullshit”.  She agreed that she received a letter from Mr Shaw the following day in which Mr Shaw had required her to obtain a medical clearance to return to work.  Ms Hollingdale stated that she obtained the certificate required.  Ms Hollingdale denied a suggestion from Ms Eastman that Mr Shaw was attempting to deal appropriately with an issue in the workplace.  Ms Hollingdale said that Mr Shaw’s letter was inappropriate as he had not discussed any of her problems he apparently believed were present.  Ms Hollingdale agreed that she did not discuss with Mr Shaw the appointment that he had arranged with Dr Braganza.  Ms Hollingdale said that she was concerned about what she regarded as harassment at the workplace after having presented the medical certificate she obtained from Dr Mortimer certifying her fitness for work. 

13. Ms Eastman asked Ms Hollingdale about the information she provided to Dr Mortimer in order to obtain that certificate.  She stated that she provided Dr Mortimer with all relevant information and had alerted her to her employer’s concern about her mental health.  She denied a suggestion from Ms Eastman that the medical certificate from Dr Mortimer was not a proper response to the request from Mr Shaw.  She agreed that she did not show Mr Shaw’s letter to Dr Mortimer and said that she did not show it because she considered the letter most unjust.  Ms Hollingdale denied that she abused Mr Shaw on 12 July 2001.  She stated that the following day she presented a certificate of unfitness for work for the purposes of a workers compensation claim.  The certificate stated that she had an adjustment disorder.  Ms Eastman suggested that the workers compensation claim was not accepted.  Ms Hollingdale asserted that the claim was accepted.

14. Ms Eastman took Ms Hollingdale to Mr Buss’ affidavit and the letter dated 17 July 2001 at page 17.  Ms Hollingdale agreed that the letter showed that no decision on a disciplinary process had been taken and that the letter had dealt with the attempt by the Area Health Service to deal with what appeared to be a medical issue.  She agreed that the letter gave her the benefit of the doubt as to the possible existence of a medical issue.  Ms Hollingdale agreed that she was required to obey lawful and reasonable directions from her superiors but stated that the direction to attend a psychiatric assessment was unreasonable in the circumstances as she had already provided a WorkCover certificate that she was unfit for work by reason of an adjustment disorder.  She did not respond in writing to Mr Buss but spoke to him by telephone.  Ms Hollingdale agreed that she did not attend the appointment on 14 August 2001 that had been arranged for her. 

1. Ms Eastman took Ms Hollingdale to the letter dated 17 August 2001 at page 31 of Mr Buss’ affidavit.  She recalled the letter and agreed that the letter advised of her suspension from employment.  She agreed that her response appears at page 34 to Mr Buss’ affidavit.  She agreed that at page 39 of the affidavit is Dr Pearson’s certificate clearing her to return to work.  She denied that she could have obtained that clearance earlier on the basis that she had earlier been unfit for work.  She agreed that she had had no manic episodes over the period.  She agreed that in the light of Dr Pearson’s certificate the Area Health Service was entitled to conclude that behavioural issues must be addressed as issues of discipline rather than medical issues. 

2. Ms Eastman asked Ms Hollingdale about a report from Dr Lovell that was provided to GIO in relation to the workers compensation claim.  Ms Hollingdale said that she had not seen that report until it was obtained under subpoena for the purposes of the present proceedings and did not know what GIO did with it.  She agreed that the report stated that Ms Hollingdale’s problems in the workplace were not due to an illness.  She agreed that the behavioural issues arising between May and July 2001 were not related to her bi-polar disorder.  She agreed that a disciplinary process was called for and agreed that the letter from Chris Crawford dated 17 September 2001 at page 41 of Mr Buss’ affidavit instituted that procedure.  She agreed that her bi-polar disorder formed no part of the decision to institute that procedure. 

3. Ms Hollingdale agreed that she made her own grievance shortly thereafter against Mr Shaw and Jane Dulieu.  She agreed that Mr Buss responded to that grievance in his letter dated 3 October 2001 at page 43 of his affidavit.  Ms Hollingdale asserted that the Area Health Service officers appointed to investigate the grievance were not independent and said that she was not given a copy of their report in a timely fashion.  She agreed that the investigation of her grievance was not linked to her bi-polar disorder.  She asserted that the report was not prepared in accordance with the policies and protocols of the Area Health Service.  Ms Hollingdale agreed that her complaint concerning the grievance procedure was non compliance with Area Health Service policies and protocols.  She was unable to say whether her bi-polar disorder may have influenced the manner in which the Area Health Service dealt with her grievance.

4. Ms Eastman asked Ms Hollingdale about her return to work following proceedings in the Industrial Relations Commission of New South Wales that she had instituted.  Ms Hollingdale agreed that she had had a meeting with Mr Buss and Ms Boot on 18 December 2001 and that she was told her suspension was lifted.  She stated that the letter dated 18 December 2001 from Mr Buss, at page 62 of his affidavit, was given to her at that meeting.  Ms Hollingdale denied that the purported file note, on page 64 of Mr Buss’ affidavit, is an accurate record of that meeting.  She stated that there was no discussion at the meeting.  She was simply informed as to what would occur.  Ms Hollingdale agreed that she was required to attend the workplace at Lismore in the project officer position from 20 December 2001 and stated that the working hours were adjusted after some discussion.  Her remuneration was maintained.  She agreed that she initially refused to attend and was given a direction to attend.  She agreed that she failed to attend work until 15 January 2002 and that she had been asked to advise whether she had abandoned her employment[1].  Ms Hollingdale agreed that she responded on 9 January 2002[2] and that Mr Buss wrote to her again on 9 January 2002[3]. 

   [1] see Buss affidavit, page 69.

   [2] see Buss affidavit, page 71

   [3] see Buss affidavit, page 74

5. Ms Hollingdale did not accept that the purported file note on page 76 of Mr Buss’ affidavit is an accurate record of events on 15 January 2002 when she returned to work.  She admitted that she was introduced to staff, and given an orientation.  She stated that she was required and did sign a code of conduct.  She agreed that she was aware that the disciplinary process would proceed.  Ms Hollingdale agreed that she called in sick on 17 January 2002 and stated that she had wanted to reopen her workers compensation claim which she had earlier made in 2001.  She stated that she considered the job she had been given was inappropriate and had taken “stress leave”.  She asserted that there was a valid cause for her stress.  Ms Hollingdale agreed she was given more leave in March 2001 and agreed that it was not appropriate for the Area Health Service to take disciplinary action against her whilst she was on leave.  She agreed that the document on page 100 of Mr Buss’ affidavit deals accurately with the issue of leave.  Ms Hollingdale acknowledged her letter of 25 March 2002, appearing on page 102 of Mr Buss’ affidavit.

6. Ms Eastman asked Ms Hollingdale about a meeting which occurred on 26 March 2002.  Ms Hollingdale denied Ms Eastman’s suggestion that this was an interview concerning the disciplinary issue and denied that the document on page 107 of Mr Buss’ affidavit was an accurate record of what occurred at that meeting.  Ms Hollingdale asserted that there was no discussion at the meeting and that the allegations against her, which she had not previously seen, were simply read to her.  She agreed that the document on page 130 of Mr Buss’ affidavit sets out her response.  She agreed that she returned to work in the project officer position and that she raised concerns about her vision problems around 3 April 2002.  She agreed that Mr Buss made enquiries of a rehabilitation officer about that concern. 

7. Ms Eastman asked Ms Hollingdale about her dealings with Mr Buss and Ms Boot in April 2002.  Ms Hollingdale said that she spoke to Mr Buss about modifying the work environment and complained to Ms Boot about working conditions.  Ms Eastman took Ms Hollingdale through the correspondence for this period included in the affidavits of Mr Buss and Ms Boot.  She acknowledged the correspondence.

8. Ms Eastman asked Ms Hollingdale about her consultation with Dr Noble concerning her eyes.  Ms Hollingdale said that she had no objection seeing Dr Noble and indeed she had sought an earlier appointment with him than that arranged on her behalf by the Area Health Service.  She agreed that Dr Noble made recommendations concerning the work environment.  Ms Hollingdale stated that she also saw her general practitioner Dr Taylor about her eyesight on 15 July 2002.  She agreed that she presented a certificate from Dr Taylor saying she was unfit for work because of vision problems.  She agreed that Dr Taylor’s notes for this consultation did not refer to any documents being given to him. 

9. Ms Hollingdale acknowledged that the Area Health Service saw a conflict between the medical report from Dr Noble and the certificate from Dr Taylor.  Ms Hollingdale stated that she went back to Dr Taylor to obtain clarification.  Ms Hollingdale agreed that she and Ms Boot corresponded concerning this issue.  Ms Eastman took Ms Hollingdale to Ms Boot’s letter of 31 July 2002 which Ms Hollingdale described as “too little too late”.  Ms Hollingdale agreed she did not return to work in compliance with the request from the Area Health Service.  She stated that she had explained her continuing absence from the workplace by reference to Dr Taylor’s certificate.  She agreed that she did not return to work on 6 August 2002 notwithstanding a direction to do so and stated that she relied on the certificate from Dr Taylor.  She agreed that in consequence her employment was terminated.

10. Ms Eastman then raised with Ms Hollingdale the industrial relations proceedings instituted by Ms Hollingdale following the termination of her employment.  Ms Hollingdale agreed that she took proceedings alleging unfair dismissal and that the complaint was based on her vision disability only.  She explained that this was because she was seeking reinstatement to the project officer position.  Ms Hollingdale agreed that a conciliation conference before Commission Murphy took place on 13 February 2003 but was unsuccessful.  Ms Hollingdale discontinued the claim on 3 September 2003.

11. Ms Hollingdale also agreed that she continued with another industrial application pursuant to s.130 of the Industrial Relations Act 1996 (NSW) (“the Industrial Relations Act”). Ms Eastman took Ms Hollingdale to a transcript of her statement before Commissioner Murphy about that. Ms Hollingdale denied that her statement was comprehensive. She accepted that the proceedings were not completed before the Industrial Relations Commission.

12. Ms Eastman asked Ms Hollingdale about her current claim to be reinstated to her employment.  Ms Hollingdale acknowledged that Dr Pollack had ventured the opinion that reinstatement would be too stressful for her. 

13. Ms Eastman asked Ms Hollingdale about her recent work history.  Ms Hollingdale confirmed that she had chosen not to work full time in 2002, 2003 and 2004.  In fact, she had not sought full time work since the termination of her employment by the Area Health Service.  She is not working presently.  She has not worked since the end of 2003.

14. Ms Eastman showed Ms Hollingdale a 1990 job application for an adolescent counsellor position which became exhibit R2.  Ms Hollingdale acknowledged that she did not disclose her vision disability in that application and said that it was not relevant.

15. Ms Eastman asked Ms Hollingdale about her workers compensation claim in July 2001.  Ms Hollingdale insisted that the compensation claim had been accepted.  In response to a question from me, Ms Hollingdale said that leave that she had taken for the period of compensation had been reinstated on the decision of GIO, the workers compensation insurer.  Mr Perry then tendered correspondence from GIO purporting to be an acceptance of that workers compensation claim, which became exhibit A1.

16. In re-examination, Ms Hollingdale stated that although Mr Orr had threatened proceedings against her he had not commenced any.  Ms Hollingdale also said that she had felt the need to recommence taking lithium because of workplace stress associated with the two particularly difficult cases she had been asked to deal with.  She also provided further explanation for her refusal to be involved in the case involving the asserted Munschhausen by proxy syndrome, by reference to the drug and alcohol addiction of the mother.  Ms Hollingdale felt that the addiction needed to be dealt with before she could provide worthwhile assistance.

Dr Gregory Pearson

1. Gregory Pearson is a consultant psychiatrist and fellow of the Royal Australian and New Zealand College of Psychiatrists.  He prepared a report concerning Ms Hollingdale dated 26 March 2004 for the purposes of these proceedings.  Dr Pearson recounts that he first saw Ms Hollingdale on 6 June 2000.  She disclosed a history of bi-polar mood disorder for the previous 20 years.  At the time she presented with variable mood and depression.  She also suffered some side effects from her medication.  There was no family history of psychiatric illness.  Ms Hollingdale’s history had disclosed significant alcohol abuse and possible dependence.  He prescribed lithium, epilim and fluoxetine. 

2. Dr Pearson reports that at the time of his examination of Ms Hollingdale in 2004 she had moderate persisting anxiety and depression but that when last reviewed Ms Hollingdale’s condition was static.  He states that Ms Hollingdale has a sophisticated level of insight into the nature of her condition and had reasonable, though not excellent, compliance with her medication.  There was an incident of lack of compliance with her lithium medication.  Dr Pearson ventures the opinion that her colleagues badly managed her manic episode in February 2000 and that Ms Hollingdale appeared to have encountered difficulties in her professional relationships with colleagues in June and July 2001.  He refers to a “protracted and antagonistic” series of industrial processes that finally culminated in Ms Hollingdale’s dismissal from employment.  Dr Pearson notes that he did not see Ms Hollingdale during this period but that when he reviewed her in August 2001 there was no evidence of hypomania, although he recommended she recommence mood stabilisers and anti-psychotic drugs.  He states that it remains entirely possible that Ms Hollingdale’s mood became slightly elevated during this period although not sufficiently elevated to warrant inpatient treatment.  He ventures the opinion that Ms Hollingdale was not supported adequately by her colleagues during this time.  He says:

   Of particular note is, if she was unwell, then she appears to have been mishandled and no efforts were made to expedite treatment in a professional and just manner.  Subsequently, she has become involved in a battle at an industrial level, none of which is reflective of poorly controlled bi-polar mood disorder. 

3. Dr Pearson makes a continuing diagnosis of bi-polar mood disorder and underlying histrionic and narcissistic personality traits.  He considers that in August 2001 Ms Hollingdale was well enough to practice psychology without being adversely affected by bi-polar mood disorder.  He states that it is possible that her prognosis may have been improved by greater compliance with medication and follow up.  He notes that Ms Hollingdale feels “let down” by her employer and has “completely lost faith in the system” in which she was employed.

4. Under cross-examination Dr Pearson stated that he had been shown Ms Hollingdale’s affidavit made on 19 June 2003 and that he had read it before seeing Ms Hollingdale for the purposes of preparing his report.  He also had a copy of a peer review report and the termination documents from HREOC.  He did not see Ms Hollingdale face to face on 15 August 2003 as the appointment was cancelled but he spoke to her by telephone.  He last saw her on 5 March 2003. 

5. Dr Pearson said that he was aware that Ms Hollingdale required a clearance to return to work in 2001 although he did not have a copy of the request for clearance in his medical notes.  He thought he could recall Ms Hollingdale bringing some correspondence with her during one of her appointments with him.  He recalls discussing with Ms Hollingdale her concern about the psychiatric appointment that had been arranged for her by the Area Health Service.  Dr Pearson said that he felt that that arrangement was inappropriate as the practitioner worked within the area covered by the Area Health Service.  He was not aware that Ms Hollingdale had herself requested a referral to Dr Braganza for a different purpose. 

6. Dr Pearson agreed with Ms Eastman that Ms Hollingdale might have benefited from more consultation with him following the initial consultation in 2000 but noted that Ms Hollingdale chose to manage her condition in consultation with her general practitioners.  He had seen her on 28 August 2001, again on 11 September 2001 and again on 25 September 2001 when he noted non compliance with the lithium medication.  He explained that lithium is an important drug in controlling mood among bi-polar patients.  He saw Ms Hollingdale again on 12 October 2001 when she reported some irritability but was not pathological. 

7. Dr Pearson admitted that his criticism of Ms Hollingdale’s colleagues was based upon what she had told him and some documents that he had seen.  In further explanation, Dr Pearson said that he was concerned that Mr Shaw had managed Ms Hollingdale’s condition over a period of about 10 years by providing medication and support to her in his capacity as a psychiatric nurse as well as a work colleague.  Dr Pearson ventured the opinion that this practice was inappropriate but had built up a high level of trust which had been breached by the precipitant withdrawal of that support in mid 2001.  He ventured the opinion that Ms Hollingdale’s condition had been poorly handled by Mr Shaw over a long period.  Dr Pearson noted that Mr Shaw had denied providing medical treatment to Ms Hollingdale but said that it was his belief that he did provide medical treatment after hours to Ms Hollingdale.  He agreed with Ms Eastman that Mr Shaw would have been on alert for signs of Ms Hollingdale having a manic episode.  Dr Pearson agreed that it was important for a psychiatric nurse in Mr Shaw’s position to call in managerial support when necessary but said that he was concerned about the manner in which support had been provided over a long period and the sudden withdrawal of that support by Mr Shaw.  He said that closeness of Mr Shaw to Ms Hollingdale’s problems and the sudden withdrawal of his support was bound to cause a problem.

8. In response to a question from me Dr Pearson said that he had never diagnosed Ms Hollingdale as having an adjustment disorder but would not have been surprised if such a diagnosis had been made in July 2001 as such a disorder could have been brought on by psycho-social stressors at the time.  In response to a question from Mr Perry in re‑examination Dr Pearson said that an adjustment disorder was quite separate from bi-polar disorder and could only have been present if there was no evidence of bi-polar mood disorder.

9. In further cross-examination Dr Pearson ventured the opinion that the degree of preoccupation shown by Ms Hollingdale to the case involving possible MUnschhausen by proxy syndrome was reasonable and ventured the opinion that such a case is very difficult to deal with.

Dr Chris Pollack

1. Dr Pollack is a consultant psychiatrist and a fellow the Royal Australian and New Zealand College of Psychiatrists.  Ms Hollingdale has consulted him since July 2003 to the time of the preparation of his affidavit on 12 August 2004.  Annexed to his affidavit are two reports dated 29 March 2004 and 3 August 2004.  In his first report Dr Pollack deals with Ms Hollingdale’s history.  He describes her bi-polar condition as euthymic (stable) during the period of his consultation.  He ventures the opinion that Ms Hollingdale’s bi-polar illness has not interfered with her ability to function as a clinical psychologist and opines that a far greater importance were workplace difficulties.  Dr Pollack opines that Ms Hollingdale would be able to practise in a private capacity as a clinical psychologist.  He states that he is unable to comment on her visual defects. 

2. In his second report, Dr Pollack notes that depression is associated with bi-polar disorder and that it would be extremely unusual for a person with the disorder not to experience depression from time to time.  He also ventures the opinion once again that, but for the workplace dispute, Ms Hollingdale would be able to practice as a psychologist with the Area Health Service.  He also states his understanding that Ms Hollingdale’s move to Taree was greatly distressing to her.  He states that it would be very doubtful whether Ms Hollingdale could now return to employment with the Area Health Service having regard to the “intolerable stress” that this would place on her.  Dr Pollack also notes Ms Hollingdale’s age as a factor limiting alternate employment options. 

3. Under cross-examination Dr Pollack conceded that he has no human relations or industrial relations expertise.  He also acknowledged that his reports were prepared without having seen the respondent’s affidavit material, although he did see it later.  He confirmed his doubt about the desirability of Ms Hollingdale returning to work with the Area Health Service.

4. In re-examination Dr Pollack said that, based upon the material now available to him, he would not change his opinion.

Larissa Tilocca

1. Ms Tilocca is the only daughter of Ms Hollingdale.  She deposes that her mother did not assault her en route to the Currumbin clinic in March 2000 and that she did not tell Warren Shaw that her mother had assaulted her.  She maintained that evidence under cross‑examination.

Jolene Elizabeth Hughes

1. Ms Hughes is a law clerk employed by Ms Hollingdale’s solicitors.  She was not required for cross-examination.  Her first affidavit introduces the medical records of Dr Noble concerning Ms Hollingdale.  Her second affidavit introduces other medical records relating to Ms Hollingdale, produced in answer to subpoenas.

2. Ms Hollingdale’s evidence was completed by the tender of exhibit A1, being a letter dated 25 September 2001 from the Area Health Service’s workers compensation insurer accepting liability for Ms Hollingdale’s claims for workers compensation for the period from 13 July 2001 until 11 January 2002.

Respondent’s evidence

1. The Area Health Service relies upon its amended response, the affidavit of Warren Donald Shaw made on 21 June 2004 (filed 22 June 2004), the affidavit of Richard John Buss made on 21 June 2004 (filed 22 June 2004) and two affidavits by Janne Maree Boot made on 12 September 2003 (filed 23 September 2003) and 23 June 2004 (filed 24 June 2004). 

2. Ms Eastman also advised me that the respondent relies upon the affidavit material relied upon in the interlocutory proceedings in relation to procedural issues[4].  I was provided with marked up copies of the affidavits by Mr Shaw, Mr Buss and Ms Boot relied upon with deletions made indicating which parts were not read.

   [4] Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721

Warren Donald Shaw

1. Mr Shaw is the clinical manager of the eastern cluster mental health service of the Area Health Service and has held that position since October 2001.  He has been employed with the Area Health Service since 16 June 1990 as a clinical nurse specialist.  He became an acting team leader in 1997.  Mr Shaw deposes as to his qualifications and his note taking practice.  In particular, he identifies notes he commenced taking in May 2001 concerning Ms Hollingdale which are annexed to his affidavit.  He deposes as to his dealings with Ms Hollingdale which extended over about 10 years.  He deposes as to his knowledge of Ms Hollingdale’s hypomanic episodes, including a major episode in 2000.  Mr Shaw deposes as to what he regards as a further hypomanic episode in 2001.

2. Mr Shaw deposes as to his dealings with Mr Buss concerning Ms Hollingdale from June 2001 and his dealings over the same period with Ms Dulieu.  He deposes as to an alleged incident on 12 July 2001. 

3. Mr Shaw deposes as to the policies of the Area Health Service that he is aware of.  He also deposes as to his understanding of Ms Hollingdale’s capacity to perform her duties. 

4. Under cross-examination Mr Shaw admitted that his recall of matters of detail was limited.  He admitted providing oral medication to Ms Hollingdale for the purposes of managing her bi-polar disorder from Area Health Service stocks but could not recall what the medication was.  He did not see that conduct as improper.  He stated that Ms Hollingdale wanted to keep her condition discreet.  Mr Shaw also stated that he periodically provided support to Ms Hollingdale during episodes that he regarded as hypomanic.  He stated that he was friendly with Ms Hollingdale for the greater part of their employment history and had socialised with her at her home.  He disclosed discussing Ms Hollingdale’s condition with a visiting psychiatrist (Ian Cole) and a Dr Mark Hayne.  He said that he witnessed five or six episodes of hypomania between 1992 and 2001.  He denied that Ms Hollingdale was a patient of the Area Health Service or that he provided clinical services to her. 

5. Mr Shaw said that he felt that on occasion Ms Hollingdale came to work when she was unwell.  He had observed her on a number of occasions exhibiting what he regarded as hypomanic symptoms in the workplace.  He said that Ms Hollingdale had been supported in the workplace by him and others.  They had worked together at the workplace at Mullumbimby.  He was concerned when Ms Hollingdale was hospitalised at the Mullumbimby Hospital in 2000 because of the close connection between that hospital and the Area Health Service.  He agreed that he had not intervened.  He regarded it as a matter for Ms Hollingdale’s treating general practitioner but had some concern that Ms Hollingdale had a professional relationship with the doctor’s wife.

6. Mr Shaw was asked about his version of the asserted conversation he had with Ms Hollingdale’s daughter in 2000 when Ms Hollingdale’s daughter transported her to the Currumbin clinic.  Mr Shaw maintained that his recollection was accurate that Ms Tilocca had said that her mother had assaulted her although he could not now recall the details of the conversation. 

7. The cross-examination of Mr Shaw was interrupted by flooding in Lismore on the fourth day of the trial (which was abandoned) and continued on the fifth day of the trial without Ms Hollingdale’s counsel, Mr Perry.  His instructing solicitor Mr Egan took charge of the cross-examination of Mr Shaw on that day (1 July 2005).

8. Mr Egan asked Mr Shaw why he kept a running diary of events from May 2001.  He said that he was instructed to do so by Mr Buss after he informed Mr Buss of his concerns about Ms Hollingdale. 

9. Mr Egan also asked Mr Shaw about how Ms Hollingdale became involved in the case of the Munchhausen by proxy syndrome mother and child.  Mr Shaw said that he had not allocated the case to Ms Hollingdale and had some concerns about her involvement over time but not at the time Ms Hollingdale first became involved in it.  Mr Shaw conceded that the case was a very complex one and took the view that Ms Hollingdale became preoccupied with it.  He agreed that Ms Hollingdale had told him that she had restarted taking lithium because of her expressed concern about the impact of the case upon her.  Mr Shaw agreed that this indicated at the time appropriate insight by Ms Hollingdale into her condition and appropriate self management.

10. Mr Egan asked Mr Shaw about the case conference with DOCS on 24 May 2001 concerning the Munchhausen by proxy case.  He agreed that Ms Hollingdale had reported to him that she had informed Mr Orr of DOCS about another DOCS employee, Mim Weber’s view that Mr Orr should be removed from the case.  Mr Shaw said he thought that it was inappropriate for Ms Hollingdale to raise the issue with Mr Orr at a clinical meeting.  He was not aware of Ms Hollingdale’s assertion that Mim Weber had authorised her to express her view to Mr Orr.  Nevertheless, he thought that Ms Hollingdale had shown poor judgement and gave him concern about a possible manifestation of her bi-polar condition. 

11. Mr Shaw agreed that he indicated at this time that he would involve the Area Health Service return to work co-ordinator, Lesley Bazley, and said that he had made various calls to her.  They were not returned.  Mr Shaw had become concerned about Ms Hollingdale’s ability to perform her liaison role.  He was also concerned about her ability to perform her advocacy role although he was not particularly concerned about Ms Hollingdale’s ability to perform her clinical role.  He thought that as at 24 May 2001 Ms Hollingdale showed a lack of insight into her bi-polar condition.  He did not agree that this was necessarily inconsistent with her appropriate indication of her recommencement of lithium.  Mr Shaw was not personally monitoring whether Ms Hollingdale was in fact taking lithium.  Mr Shaw reported his concerns to Mr Buss.  He did not discuss his concerns in any detail with Ms Hollingdale because he found this difficult due to her hostile attitude to him from around that time.  However, Mr Shaw could not recall any particular indications of hostility before the meeting with DOCS on 24 May 2001.  From that point Mr Shaw became increasingly concerned about Ms Hollingdale’s attitude and mental health. 

12. Mr Egan asked Mr Shaw what he did to manage Ms Hollingdale during this period.  He said that he tried to keep civil and he ultimately had a lengthy discussion with Lesley Bazley about her.  He did not speak to any medical practitioners about Ms Hollingdale’s condition because he thought it inappropriate to do so without a request from Ms Hollingdale.  Prior to 2000 he had at times spoken to visiting medical practitioners of the Area Health Service about Ms Hollingdale at her request.  He was concerned that he should not do so in 2001 as he thought Ms Hollingdale might regard that as inflammatory.  Notwithstanding his concerns about Ms Hollingdale’s condition, Mr Shaw did not remove the Munchhausen by proxy case from her.  He agreed that, on the contrary, he had referred another difficult case to her involving a mother who had previously committed murder.

13. Mr Egan asked Mr Shaw why, if he was concerned about Ms Hollingdale’s condition, he criticised her withdrawal from the Munchhausen by proxy case.  He responded that it was not the withdrawal of Ms Hollingdale per se that concerned him but the manner in which she did so.  He agreed that at the time Ms Hollingdale had withdrawn from that case the child in question had been removed from his mother which had met Ms Hollingdale’s main concern.  He agreed that it would not have been appropriate for him to refer a second difficult case to Ms Hollingdale if his concerns about her bi-polar condition had been substantiated.  He regarded the question as uncertain at the time.  He recalled that Ms Hollingdale had been very cautious about taking on the new case but said that he had specific reasons for asking her to take it, in particular her competence as a clinical psychologist and the need he saw for a structured approach to the client of the Area Health Service.

14. Mr Egan asked Mr Shaw whether he would have regarded Ms Hollingdale’s confrontation with Mr Orr of DOCS as a disciplinary issue but for her bi-polar disorder.  He stated that he probably would have.  He ventured the opinion that but for Ms Hollingdale’s bi-polar disorder he would not have commenced a written diary concerning events involving her but he would have reported the matter orally to Mr Buss.

15. Mr Egan asked Mr Shaw about a number of incidents referred to in his affidavit which became the subject of disciplinary allegations against Ms Hollingdale[5].  Mr Shaw said that he had not seen that letter previously and he was not aware of the disciplinary allegations.

    [5] see the letter dated 17 August 2001 at page 31 of Mr Buss’ affidavit

16. Mr Egan asked Mr Shaw about paragraphs 38 and 39 of his affidavit.  He resisted challenges to his credibility about his recollections of the conversations referred to.  He agreed that, based upon his diary notes, his first attempt to contact Lesley Bazley was on 1 June 2001.  He agreed that Ms Bazley had not returned his telephone calls.  Mr Egan asked Mr Shaw who Anne Lipzker is.  He said that she is a child and adolescent co-ordinator with the Area Health Service and a psychologist.  He agreed that Ms Lipzker had some authority over other staff and said that she had been very keen to support Ms Hollingdale.  He said that at some point he had spoken to Ms Lipzker but agreed that there was no record of it in his diary notes.  Mr Shaw resisted a suggestion from Mr Egan that this indicated a partisan approach by him.  In response to a question from me, Mr Shaw stated that Ms Lipzker was still employed by the Area Health Service.  Mr Shaw agreed that he had reported the conversations at this point to Mr Buss but could not recall if he told Ms Hollingdale that he was reporting the issues to Mr Buss.  In response to questions from me, Mr Shaw said that he regarded Ms Hollingdale’s behaviour on 30 May 2001 as inappropriate.  He nevertheless apologised to her the following day as a result of his discussion with Mr Buss and his concern to address Ms Hollingdale’s perception that he was harassing her.  Mr Shaw agreed with Mr Egan that it was possible Ms Hollingdale objected to being accused of inappropriate behaviour at the DOCS meeting.  Mr Shaw also agreed with Mr Egan that he was at this point still concerned about Ms Hollingdale’s health.  He said that he had tried to engage Ms Hollingdale in discussion about the issue but was not successful.

17. Mr Egan asked Mr Shaw about Ms Hollingdale’s attendance at intake meetings.  Mr Shaw agreed that attendance at these meetings was not compulsory and agreed that Ms Hollingdale had asked him to relieve her of any obligation to attend such meetings on 28 June 2001.  He agreed that there was nothing in his diary notes about Ms Hollingdale’s failure to attend a team meeting on 31 May 2001 and agreed that attendance at such meetings was not compulsory and he may have been asked to put in an apology for Ms Hollingdale for that meeting.  He was unaware that a disciplinary allegation had since been made against Ms Hollingdale for her non attendance.

18. In relation to paragraph 42 of his affidavit, Mr Shaw agreed that he was concerned that events on 7 June 2001 indicated a possible manifestation of Ms Hollingdale’s bi-polar disorder.  He agreed that his previous experience with the disorder had centred upon manic episodes and that what he witnessed on 7 June 2001 was not mania but nevertheless said that he saw a similarity with developments which led up to Ms Hollingdale’s hospitalisation in 2000.  He did not think that Ms Hollingdale’s behaviour could be explained by the impact of the Munchhausen by proxy syndrome case on her. 

19. Mr Egan asked Mr Shaw about paragraph 45 of his affidavit.  He agreed that Ms Dulieu was not part of his team.  He agreed that he did not record in his diary notes any details of the alleged hostility shown by Ms Hollingdale to Ms Dulieu.  He agreed that Ms Dulieu’s perception strengthened his own.

20. In relation to paragraph 46 of his affidavit Mr Shaw said that the extreme certainty with which Ms Hollingdale expressed herself on 28 June 2001 in asking to be taken off the intake roster concerned him as he did not think that Ms Hollingdale was expressing a logical view.  In response to a question from me, Mr Shaw said that he formed the view that he could not accommodate Ms Hollingdale’s request to be taken off the intake roster but could not recall telling her of his decision.  Mr Shaw could not recall when the weekly intake meeting was that Ms Dulieu spoke to him about on 3 July 2001.  Mr Shaw said that apart from that discussion two mental health staff had separately on that day expressed concerns to him that Ms Hollingdale was not taking her medication and that they were concerned about her mental health.  Mr Shaw agreed that he did not ask for further details and that he should have recorded further detail.  He did not follow up the issue of whether Ms Hollingdale was taking her medication.

21. Mr Shaw agreed that paragraph 49 of his affidavit details his first contact with Lesley Bazley about Ms Hollingdale’s condition.  He agreed that Ms Bazley felt that Ms Hollingdale needed to be monitored by someone who was not a colleague.

22. In relation to paragraph 51 of his affidavit Mr Shaw agreed that, but for Ms Hollingdale’s bi-polar disorder, there would have been no reason to record her test driving a motor vehicle during working hours. 

23. Mr Egan asked Mr Shaw about paragraph 52 of his affidavit.  He said that Ms Hollingdale lived on a farm property and that an elderly couple had purchased a part of the property and lived on it.  A conflict had developed between them and Ms Hollingdale that concerned him because he believed that the couple had been friendly with Ms Hollingdale previously.  The neighbour, Mr Russell, had contacted Mr Shaw on 9 July 2001 to discuss the dispute with Ms Hollingdale and Ms Hollingdale was upset when Mr Shaw reported that discussion to her.  Mr Shaw agreed with Mr Egan that the approach from Mr Russell increased his concerns about Ms Hollingdale’s bi-polar disorder. 

24. Mr Egan asked Mr Shaw about paragraph 54 of his affidavit.  Mr Shaw said that he thought Ms Hollingdale lifting her shirt to show him a rash was indicative of disinhibition which might have indicated a bi-polar episode.  Ms Hollingdale had commented to Mr Shaw that she had a rash and asked him what he thought might have caused it.  Ms Hollingdale had allegedly said to Mr Shaw that she was not taking any medications besides anti-hypertensives.  Mr Shaw confirmed that he had sent Ms Hollingdale home as he felt she was unfit for work.  He agreed that she was not on that day hostile or aggressive when he sent her home but he was nevertheless concerned for her mental health.  In two later conversations with Ms Hollingdale by telephone to her at home he referred to other staff concerns about her reported by Ms Dulieu, Ms Meredith and Ms Monk.  He also suggested that Ms Hollingdale see Ms Bazley.  Mr Shaw agreed that he had not raised the issue of Ms Hollingdale seeing Ms Bazley by telephone but said that he had raised it before he sent Ms Hollingdale home.

25. Mr Shaw was resworn on 29 July 2005 when the hearing resumed and Mr Perry took up the cross-examination of him.  Mr Perry reviewed some of the evidence that Mr Egan had drawn out earlier in cross‑examination.  Mr Perry asked Mr Shaw why he was worried about Ms Hollingdale’s criticism of Mr Orr, as he was apparently aware of Ms Hollingdale’s concern about Mr Orr prior to the meeting with DOCS on 24 May 2001.  Mr Shaw said that he was concerned about Ms Hollingdale raising her concern with Mr Orr at the meeting on that day.  Mr Shaw said that his concern was that that meeting was not the appropriate forum for Ms Hollingdale to raise the issue.  Mr Shaw agreed that notwithstanding his concerns at that time about Ms Hollingdale’s state of mind, he was keen for her to continue being involved with the Munschhausen by proxy case and with the other difficult case that he had given her.  Mr Shaw said that he was concerned that Ms Hollingdale should not withdraw from either case without making an appropriate arrangement for the handling of the case within the Area Health Service.  Mr Shaw agreed that he was concerned at that time that Ms Hollingdale was “becoming unwell”. 

26. Mr Perry asked Mr Shaw about the staff concerns he was aware of relating to Ms Hollingdale.  Mr Shaw said that he was aware of concerns from Jane Dulieu as well as from Carolyn Monk and others.  There were concerns about Ms Hollingdale’s state of health.  He conceded that, to his knowledge, Ms Monk was not fearful of Ms Hollingdale. 

27. Mr Perry asked Mr Shaw about his memorandum to Mr Buss of 21 December 2001.  He agreed that he had prepared this memorandum on the basis of his own knowledge and belief as well as information received from Jane Dulieu.  In relation to his reference to “further intimidation and retribution” Mr Shaw said that he had experienced intimidation and retribution previously but he was not aware of other staff having prior experience.  He could not specifically recall how he arrived at that allegation in the memorandum.  Mr Shaw agreed that he was concerned at that time about his relationship with Ms Hollingdale.  Mr Shaw agreed that in the conclusion of his notes in August 2001 he had recommended that Ms Hollingdale be re-introduced into the workplace and he expected her back.  In relation to paragraph 58 of his affidavit Mr Shaw admitted that his reference to Ms Hollingdale being “out of control” was an exaggeration.  Mr Shaw agreed that while he was concerned about Ms Hollingdale’s state of mind he could not recall any particular incidents of concern relating to her clinical work.  He said he was concerned about the “whole picture”.  In particular, he was concerned about the manifestation of Ms Hollingdale’s bi-polar disorder in 2000 reappearing. 

28. Mr Perry asked Mr Shaw about the events on 12 July 2001.  He agreed that when Ms Boot came to the workplace she was concerned.  He also agreed that Ms Hollingdale had agreed to see a mental health team.  He understood that a report had been prepared afterwards but he had not seen it.  Mr Shaw said that while he was interested in the report he had gone on leave shortly after that date.  Mr Shaw disagreed that Ms Boot had been aggressive towards Ms Hollingdale on 12 July 2001.  He said that she had been firm although he could not recall particular details of her demeanour.  He conceded that Ms Bazley might have handled the matter differently if she had been called. 

1. As to damages Mr Perry replies as follows:

   ·The level of damages appropriate to the case depends upon all of the circumstances of the case.  They should not minimise or trivialise the action complained of.  Although it is not necessary to cite authorities for damages being awarded at a level of $80,000.00, some assistance was provided by reference to the assessment by Heerey J. in Featherston.  It is respectfully submitted that the damage sustained by Ms Hollingdale in the present proceedings is in excess of that found in Featherston.

   ·In Commonwealth v Evans, Branson J said (para. 82), that the range of damages for hurt and humiliation may be higher than that referred to by Raphael FM in September 2000 in Shiels v James of between $7,500.00 and $20,000.00.  It depends on the circumstances.  Further, Ms Hollingdale’s damages go well beyond hurt and humiliation.  The claim is not unprecedented.[59]

   ·Contrary to Ms Eastman’s submissions, Ms Hollingdale has attempted to mitigate.   See for example, her affidavit sworn 10 January 2005.

   ·It is unsafe to approach the assessment of damages in this case by limiting them to no more than what “damage” would be awarded in an unfair dismissal proceedings.  Damages is not a concept in such a proceeding.

   ·As to the basis for the claim for future loss is concerned, this has been set out in the primary submissions.  Given her employment history in the public sector, her age and having been demonised by the Area Health Service, it is no surprise that Ms Hollingdale has had difficulty finding work.

   [59] State of Victoria v. McKenna (1999) VSC 310.

2. As to costs, given that the Area Health Service seeks to be heard in any event, in relation to costs, Ms Hollingdale reserves her position here except to say:

   ·This was a complex case where the relevant history of alleged discrimination spanned a period of over two years.  During that time, there were various actions or omissions that occurred that were acts of discrimination in themselves and/or critical evidence/history that were relevant to the ultimate discriminatory acts relied upon.  It was not unreasonable, in those circumstances, to ensure that the points of claim properly encompassed all arguable discriminatory acts.

   ·It is not correct to say that Ms Hollingdale had abandoned a third of her claim.  Generally, where no submissions have been made in respect of certain points of claim, it is because, having regard to the evidence, there was a degree of overlapping of the points/discriminatory acts so that some points were subsumed by others.

   ·Even those points of claim about which no submissions were made were critically relevant to the overall case and in most instances, were able to (were it not for the overlapping) sustain a finding of discrimination.  None of this has caused the hearing to go any longer than it would have in any event.  The lengthy and complex evidence still needed to be traversed.  This was the nature of the case. 

Reasoning

1. I agree with Ms Eastman that, notwithstanding the many alleged acts of unlawful disability discrimination in this case, the critical issues are whether the suspension of Ms Hollingdale from her position as a clinical psychologist and the termination of Ms Hollingdale’s employment are unlawfully discriminatory under the DDA. The points of claim, while useful in identifying relevant factual issues, tend to obscure the critical issues because of their detail and the degree of overlap within them. In addition to the critical issues of Ms Hollingdale’s suspension from and termination of her employment, there are a number of secondary issues. I accept Mr Perry’s submission that the issues can be dealt with generally by reference to the complaints Ms Hollingdale made to HREOC. I find that the issues to be resolved are:

   a)Did the Area Health Service discriminate against Ms Hollingdale in dealing with her allegedly inappropriate behaviour between May and August 2001?

   b)Did the Area Health Service discriminate against Ms Hollingdale in suspending her from her duties as a clinical psychologist in August 2001?

   c)Did the Area Health Service discriminate against Ms Hollingdale in its discipline and complaints processes leading to its provision of alternative work as a project officer?

   d)Did the Area Health Service discriminate against Ms Hollingdale in that alternative employment in relation to her vision disability?

   e)Did the Area Health Service discriminate against Ms Hollingdale in dismissing her in August 2002? and

   f)Did the Area Health Service discriminate against Ms Hollingdale in referring her to the Psychologists’ Registration Board?

2. Ms Hollingdale bears the onus of proof in relation to the alleged acts of discrimination.  I reject Ms Eastman’s submission as to the application of the Briginshaw principle[60].  The application of the Briginshaw principle was considered in some detail by the New South Wales Supreme Court in Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 at [59]-[72]. I agree with the observations of Hall J in that case at [59]-[66]. There are no allegations by Ms Hollingdale of fraud or criminal or even moral wrongdoing in these proceedings. There is no question of any grave consequences flowing from adverse findings against the Area Health Service. There is nothing in these proceedings requiring satisfaction beyond the ordinary balance of probabilities.

   [60] (1938) 60 CLR 336

3. The relevant legal principles are otherwise not in any serious dispute in relation to issues going to liability.  I accept Ms Eastman’s submissions as to the relevant legal principles set out at paragraph 131 above.  Ms Hollingdale relies upon her disabilities of bi-polar disorder and keratoconus.  This was clarified in Mr Perry’s written submissions in reply.  In order for Ms Hollingdale to succeed she must establish, on the balance of probabilities, that her suspension and termination (and any other detriments she asserts) occurred because of one or both of her disabilities and that she was treated less favourably than a comparator would have been in the same or similar circumstances.

4. Although Mr Perry explored during the course of the trial of this matter whether an actual comparator might be found, Ms Hollingdale ultimately relied upon a hypothetical comparator.  I accept in general terms the comparator postulated by Mr Perry in his initial written submissions.  The proper comparator is:

   a)an employee of the Area Health Service, having a position and responsibilities equivalent of those of Ms Hollingdale;

   b)who did not have bi-polar disorder or keratoconus;

   c)who enjoyed the same rights and who was subject to the same obligations in employment as Ms Hollingdale; and

   d)who exhibited the same behaviours as Ms Hollingdale and who was subject to the same allegations.

5. I turn now to consider the several allegations of unlawful discrimination.  It is possible to deal with the issues quite briefly, by reference to the detailed and helpful submissions of counsel.  That is what I have done.

Did the Area Health Service discriminate against Ms Hollingdale between May and August 2001 in dealing with her allegedly inappropriate behaviour and in suspending her from her duties as a clinical psychologist?

1. Subject to what follows under this heading, I agree with Ms Eastman’s submissions in relation to the incidents she describes as incidents three to seven.  The evidence of Mr Shaw and Ms Hollingdale is critical in relation to this issue.  The evidence of Ms Boot is also important, and that of Mr Buss somewhat less important, as he was less directly involved.  Mr Shaw’s power of recall was imperfect but he impressed me as a sincere and honest witness.  The evidence of both Mr Shaw and Ms Hollingdale was coloured by their experience but that of Ms Hollingdale was more seriously affected.  She showed strong hostility to Mr Shaw and Ms Boot which is no doubt a consequence of the history of her employment with the Area Health Service in 2001 and 2002.  That hostility is understandable but causes me to treat Ms Hollingdale’s evidence with caution.  In addition, Ms Hollingdale was at times argumentative and unresponsive under cross-examination.  She presented as a person with a fixed and self-justifying view of the events relevant to the case.  I find that the traumatic employment experience of Ms Hollingdale since 2001 has caused her to adopt a slanted view of the relevant events.  I prefer the evidence of the Area Health Service’s witnesses where it directly conflicts with that of Ms Hollingdale.  In particular, I was impressed by the evidence of Ms Boot as clear, firm, unbiased and objective.  Ms Boot was able to corroborate the concerns of Mr Shaw about Ms Hollingdale’s behaviour from her own observations of her at the relevant time.

2. The relationship between Ms Hollingdale and Mr Shaw was both well developed and complex by 2001.  They had known each other and worked together for over a decade.  They had worked together in an intimate and somewhat isolated workplace.  Mr Shaw was well aware of Ms Hollingdale’s bi-polar disorder and had attempted to deal with it in an ad hoc way over many years.

3. Ms Hollingdale suffered a major bi-polar episode in 2000 which caused her to be hospitalised.  That crisis caused a change in the relationship between Mr Shaw and Ms Hollingdale.  Mr Shaw admitted supplying Ms Hollingdale with medication for her to control her disorder during the 1990s.  The provision of such medication informally was inappropriate.  Both Mr Shaw and Ms Hollingdale were health professionals and both should have known better than to self medicate and self manage a serious mental illness.  That is especially so in a case of health professionals providing mental health services, as both Ms Hollingdale and Mr Shaw were.

4. An additional factor was Mr Shaw’s appointment as acting team leader and Ms Hollingdale’s administrative manager.  As a result of Ms Hollingdale’s hospitalisation in 2000 Mr Shaw came to the sound realisation that he could not continue to assist Ms Hollingdale as he had in the past.  As a result of his administrative promotion, Mr Shaw correctly (but rather tardily) saw that he had a responsibility to the Area Health Service and its clients to deal more professionally with Ms Hollingdale’s disorder. 

5. I accept the evidence of Mr Shaw, Ms Boot and Mr Buss that Ms Hollingdale exhibited serious inappropriate behaviour during 2001 over several months.  That behaviour was a concern to employees of the Area Health Service and also to Ms Hollingdale’s neighbours.  Mr Shaw acted appropriately in consulting Mr Buss and in keeping a written record of what he saw as relevant events.  Mr Shaw also acted appropriately on 11 July 2001 in seeking the involvement of Ms Boot.  He was seriously concerned and needed her involvement.  Mr Shaw reasonably and properly required Ms Hollingdale to obtain a medical assessment: Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at [68] and [69].

6. I see nothing significant in the two difficult identified cases referred to Ms Hollingdale by Mr Shaw and his efforts to maintain her involvement over this period.  All professionals are expected from time to time to deal with difficult cases.  Mr Shaw merely wanted Ms Hollingdale to do her job so long as she was fit to do it.  He was concerned about her behaviour, including her conflict with a DOCS employee over one of the difficult cases, but that was only one element of a broader picture of concerning behaviour.

7. There is no doubt that what stimulated Mr Shaw to act as he did was his concern about Ms Hollingdale’s bi-polar disorder.  I reject Ms Eastman’s submissions to the contrary.  Mr Shaw was plainly most concerned that Ms Hollingdale might be suffering a bi-polar episode like she did in 2000 and he was keen to try to deal with it.  Mr Shaw briefed Mr Buss on his concerns.

8. On the other hand, Ms Boot did not have the same intimate acquaintance with Ms Hollingdale and did not have the same knowledge of or concern about her bi-polar disorder.  She knew that there was a problem but did not know what it was (although she may have been given a general indication by Mr Shaw).  The Area Health Service directions to Ms Hollingdale to attend medical health workers on 12 July 2001 and the request that she attend medical appointments made on 17 July 2001 and 6 August 2001 were an appropriate response to a medical concern.  Ms Hollingdale co-operated to only a very limited extent (on 12 July 2001) with the Area Health Service’s attempts to obtain medical intervention and did not attend several appointments arranged for her.  Whether Ms Hollingdale was justified or not in refusing to attend appointments is not the point.  That related to the identity of the practitioners nominated by the Area Health Service, which I do not regard as a relevant issue.  I am not reviewing the merits of the action taken by the Area Health Service.  The question is whether the Area Health Service’s conduct leading up to and resulting in her suspension was unlawfully discriminatory. 

9. I find that the Area Health Service was constructively aware, through Mr Shaw and Mr Buss, of Ms Hollingdale’s bi-polar disorder and it was her bi‑polar disorder that caused the actions of Mr Shaw which in turn stimulated the actions of Ms Boot and Mr Buss.  However, the hypothetical comparator would not have been treated any more favourably.  If such a hypothetical employee had exhibited the inappropriate behaviour of Ms Hollingdale to which a medical cause was suspected (as it was here) medical intervention would almost certainly have been sought.  I have no reason to believe that the hypothetical comparator would have been treated any differently than Ms Hollingdale.  It was untenable for the Area Health Service to have a mental health employee exhibiting behaviours which might stem from a mental disability and which adversely impacted upon other employees at the workplace. 

10. Although Ms Hollingdale was ostensibly suspended from duty on 17 August 2001 because she refused to obey reasonable directions, the real reason was that Ms Hollingdale was suspected of having another bi-polar episode.  Her behaviour was attributed by Mr Shaw (and possibly also by Mr Buss) to her bi-polar disorder.  They may have been right, notwithstanding the opinion of Dr Pearson in August 2001 that Ms Hollingdale was fit for duty.  The evidence of Mr Shaw and Dr Pearson was that Ms Hollingdale was for some time between July and September 2001 non compliant with her lithium medication.  On 14 August 2001 Ms Hollingdale told Dr Pearson that she had ceased taking all medication, including lithium.  I do not rule out the possibility of Ms Hollingdale suffering hypomania between May and August 2001 but I make no finding. 

11. Ms Hollingdale was diagnosed as suffering from an adjustment disorder with anxiety and depressed mood by two general practitioners in mid July and mid August 2001 and the former certified her as unfit for work.  The latter took the opposite view.  Whatever the cause of her behaviour, however, it could not continue to be tolerated by the Area Health Service.  Ms Hollingdale had exhibited, over a period of months, hostility and aggression towards her colleagues and had shown unreasonable inflexibility and self aggrandisement in her dealings with others.  The behaviour was not “assumed”.  It was real.  Her suspension from her position was not less favourable treatment.  If the hypothetical comparator had engaged in the same behaviours and a medical cause was suspected and the comparator would not co-operate to obtain an assessment and, if necessary, treatment, a suspension would have been the logical consequence.  To the extent that the conduct of Mr Shaw, Mr Buss, Ms Boot and others at the Area Health Service may be open to criticism, there is no reason to suppose that they would have handled the situation of a hypothetical comparator in the same or similar circumstances any better.

12. I find that the Area Health Service did not unlawfully discriminate against Ms Hollingdale in her suspension from duty and in the events leading up to it. 

Did the Area Health Service unlawfully discriminate against Ms Hollingdale in its disciplinary and complaints processes leading to it arranging for her to perform alternative duties as a project officer and in failing to make adequate provision for her visual disability?

1. There is no real issue of unlawful discrimination in relation to the disciplinary investigation undertaken by the Area Health Service against Ms Hollingdale and its response to her grievances against others.  There are a number of reasons for this.  One is that disciplinary action was only pursued against Ms Hollingdale once medical evidence was available which established that Ms Hollingdale was fit for duty notwithstanding her bi-polar disorder.  The pursuit of disciplinary action in the circumstances was not because of Ms Hollingdale’s bi‑polar disorder but because, in the absence of that medical explanation, it was properly a matter of discipline.  I prefer the submissions of Ms Eastman to those of Mr Perry in that regard.  It might have been argued that the pursuit of disciplinary action was discriminatory in relation to an adjustment disorder which Ms Hollingdale suffered shortly before her suspension and thereafter throughout 2001.  The adjustment disorder is established on the medical evidence and was accepted by the Area Health Service for workers compensation purposes.  However, Ms Hollingdale’s claim was not put on that basis. 

2. Even if it had been, it is unlikely that unlawful discrimination could have been established.  Ms Hollingdale’s complaints about the disciplinary process centre upon delay and the conduct of the disciplinary interview on 26 March 2002.  Ms Hollingdale asserted departures from required procedures under the Area Health Service employment manual but those departures were either insubstantial or warranted by the circumstances.  I accept the evidence of Mr Buss and Ms Boot concerning their compliance with the procedures manual.  As for the interview on 26 March 2002, it cannot be considered in isolation.  It was part of a process.  Ms Hollingdale took the opportunity afforded to her to respond in writing after the interview to the allegations against her.  The process was fair and I have no reason to suppose that a better process would have been followed in the case of the hypothetical comparator. 

3. The disciplinary action was a stop-start affair and could have been better handled but it became drawn out substantially because of combative actions taken by Ms Hollingdale in raising her own grievances and later in taking industrial proceedings.  Some action reasonably needed to be taken in consequence of Ms Hollingdale’s inappropriate behaviour in the workplace.  There is nothing before me to persuade me that the actions taken would have been more promptly taken or would have been better handled in the case of the hypothetical comparator, had the comparator responded to the disciplinary action in the intelligently combative manner shown by Ms Hollingdale.  It is relatively easy (particularly in large and bureaucratic organisations) for an intelligent and determined employee to delay and complicate disciplinary action by vigorously contesting it, which is precisely what Ms Hollingdale did.  Further, the disciplinary process could not reasonably be completed until Ms Hollingdale recovered from the adjustment disorder for which she was receiving workers compensation benefits.  If the hypothetical comparator had been similarly unwell, it is reasonable to expect that the disciplinary process would have been delayed.  To the extent that the disciplinary process was mishandled through delay, uncertainty and variability in approach to the issues, I am not persuaded that the hypothetical comparator, with Ms Hollingdale’s attributes, would not have similarly flummoxed the Area Health Service.

1. Ms Hollingdale was asked to return to work as a project officer by letter dated 18 December 2001 when her suspension was lifted. At that stage, disciplinary action against Ms Hollingdale was incomplete and there was also the unresolved question of Ms Hollingdale’s capacity to practise as a psychologist that had been raised with the Psychologists’ Registration Board. It was apparently thought by the Area Health Service that the project officer position was an appropriate one pending resolution of the question whether Ms Hollingdale could return to her old job. Ms Hollingdale responded with proceedings under s.130 of the Industrial Relations Act. That dispute was resolved upon the basis that Ms Hollingdale would take up the project officer position. I reject the contention (if it is still maintained) that the effort made by the Area Health Service to place Ms Hollingdale in the project officer position pending the resolution of the disciplinary and professional capacity issues was per se unlawfully discriminatory.

2. There is a question whether Ms Hollingdale was treated relatively unfavourably in the conditions of her employment, by reference to her keratoconus.  It is unclear to what extent that allegation is still pursued, having regard to Mr Perry’s submissions.  If it is, then I reject it.  On the evidence of the Ms Boot and Mr Buss, which I accept, reasonable and appropriate accommodations were made to Ms Hollingdale in the project officer position.  She sought the variation to her work times so she did not have to drive at night.  That was granted.  She sought a special computer screen which was provided.  I find that the Area Health Service made the accommodations necessary for Ms Hollingdale to be able to perform her role as a project officer.  Once those accommodations were made, her vision disability ought not to have prevented her from performing it provided that she did not spend an excessive amount of time working on a computer.  It was well within Ms Hollingdale’s power to determine how much time she could safely spend doing computer work.  A hypothetical comparator performing the same role who required special arrangements for medical reasons would not have been treated any more favourably. 

Was Ms Hollingdale discriminated against in her dismissal from employment on 12 August 2002?

1. I agree generally with Ms Eastman’s submissions in relation to what she describes as incidents nineteen and twenty. Ms Hollingdale was dismissed because of her refusal to attend work. This was not because of her bi-polar disorder. Her bi-polar disorder did not prevent her from working. She had previously been certified as fit for work notwithstanding that disorder. It is not suggested that Ms Hollingdale’s adjustment disorder was the reason for her dismissal. In any event, the workers compensation payments for that disorder had ceased many months before and a further claim had been rejected. The reason why Ms Hollingdale refused to attend work was because she claimed she was unfit for work because of her keratoconus. She had a medical certificate certifying that she was unfit for work. The Area Health Service refused to accept it. I find that the Area Health Service believed that Ms Hollingdale was malingering. No other conclusion is reasonably open on the evidence. It was because the Area Health Service believed that Ms Hollingdale was malingering, and therefore had no medical reason for non attendance at work, that she was dismissed. It necessarily follows that her keratoconus was not the reason for her dismissal. Rather, the reason was the belief of the Area Health Service that Ms Hollingdale had no medical condition which prevented her from working. An employer does not breach the DDA by dismissing a malingerer or someone who is believed to be one[61].  I accept Ms Eastman’s submissions in this regard.

Did the Area Health Service unlawfully discriminate against Ms Hollingdale in laying a complaint against her to the Pyschologists’ Registration Board?

[61] Forbes v Commonwealth [2004] FCAFC 95

1. I accept Ms Eastman’s submission that no issue of unlawful discrimination arises in relation to the initial approach by the Area Health Service to the Psychologists’ Registration Board on 5 December 2001.  At that stage, the Area Health Service simply provided information and sought advice.  The advice was that no action under the then existing legislation was open in relation to impaired practitioners.  When the legislation was changed and action became possible the Area Health Service made a complaint to the Health Care Complaints Commission which was notified to Ms Hollingdale by letter dated 12 March 2003.  Curiously, the complaint ultimately made, on the evidence of Ms Boot, which I accept, was based on Ms Hollingdale’s behaviour, rather than a disability, so it is hard to see what the issue of impairment then was.  If the issue was simply one of unacceptable behaviour, I do not understand why it could not have been dealt with by the Board under the earlier legislation as an allegation of professional misconduct.  This indicates some confusion in the approach taken by the Area Health Service. 

2. Nevertheless, the claim made by Ms Hollingdale based upon s.15(2)(d) of the DDA must fail for several reasons. In the first place this was not a detriment in employment. Ms Hollingdale’s employment had already been terminated by this stage and in any event the question of her fitness to practise as a psychologist arose independently from any employment issue. If Ms Hollingdale was unfit to practise, she could not have undertaken any employment as a psychologist, or undertaken private practice. The fact that a complaint is made by a current or former employer is incidental. The identity of the complainant cannot render a complaint of professional unfitness made to the relevant professional registration authority a detriment in the course of employment when the complaint relates to a much broader issue than the particular employment, and the complaint could have been made by anyone.

3. Secondly, even if a claim under s.15 had been open, it was not proved. Exhibit R1 establishes repeated action by the Area Health Service in drawing to the attention of the Board and the HCCC questions about the fitness of psychologists to practise. There can be little doubt that the behaviour of Ms Hollingdale raised a serious question about her fitness to practise that needed an answer (whether or not there was an issue of impairment) and that the hypothetical comparator would have been treated in the same way. The only question in my mind is whether the issues raised with the Board in 2001 should have been raised much earlier – in particular when Ms Hollingdale was hospitalised in 2000. They probably should have been raised then but that failure on the part of the Area Health Service cannot assist Ms Hollingdale in her claim. If the issue had been raised then it would no doubt have been raised as an issue of impairment, and could not have been dealt with until the legislation was amended, by which time the issue had ceased to be one of impairment. I reject the claim.

4. I find that none of the asserted acts of unlawful discrimination have been proven.  I will dismiss the application.

5. I will hear the parties as to costs.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 January 2006