Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW)
[2015] FCCA 1827
•3 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNTLEY v STATE OF NSW, DEPARTMENT OF POLICE AND JUSTICE (CORRECTIVE SERVICES NSW) | [2015] FCCA 1827 |
| Catchwords: HUMAN RIGHTS – Disability discrimination – whether respondent failed to provide reasonable adjustments – whether applicant was unable to perform inherent requirements of the employment position – whether respondent breached terms of employment contract. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 15, 21A, 21B Federal Circuit Court of Australia Act 1999 (Cth), s.76 |
| Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Neat Holdings Pty Limited v Karajan Holding Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Browne v Dunn (1893) 6 R 67 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 1 Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1 Bulstrode v Trimble [1970] VR 840 Message v Baires Contracting Pty Ltd [2011] VSC 75 Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6 Watts v Australian Postal Corporation [2014] FCA 370 Varas v Fairfield City Council [2009] FCA 689 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133 Alexander v Cappello and Anor [2013] FCCA 860 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 |
| Applicant: | CARYN HUNTLEY |
| Respondent: | STATE OF NSW, DEPARTMENT OF POLICE AND JUSTICE (CORRECTIVE SERVICES NSW) |
| File Number: | SYG 1537 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 10 - 11, 13, 16 – 18 June 2014 |
| Date of Last Submission: | 26 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Ronalds SC |
| Solicitors for the Applicant: | PCC Lawyers |
| Counsel for the Respondent: | Ms T Jowett |
| Solicitors for the Respondent: | New South Wales Department of Police and Justice (Corrective Services NSW) |
THE COURT DECLARES THAT
The Department unlawfully discriminated against her in breach of ss.5 and 15 of the Disability Discrimination Act 1992 (Cth).
Ms Huntley met all the relevant requirements of her position such that s.21A of the Disability Discrimination Act 1992 (Cth) was not met by the Department.
The Department breached express and implied terms of Ms Huntley’s contract of employment.
THE COURT ORDERS THAT
Pursuant to s.46PO(4)(a) of the Australian Human Rights Commission Act 1986 (Cth) the Department to re-credit Ms Huntley’s leave entitlements for the period of 11 May 2011 to 15 July 2011.
Pursuant to s.46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) the Department pay Ms Huntley compensation for loss or damage suffered by Ms Huntley caused by the Department’s contraventions of the Disability Discrimination Act 1992 (Cth) and breaches of the contract, namely:
(a)Compensation for pain and suffering and breach of contract of an amount of $75,000.00.
(b)For loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities in the amount of $98,863.89.
The Department to pay Ms Huntley interest on her loss of wages, leave entitlements, superannuation and loss of promotion opportunities pursuant to s.76(3)(c) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.21.06 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1537 of 2013
| CARYN HUNTLEY |
Applicant
And
| STATE OF NSW, DEPARTMENT OF POLICE AND JUSTICE (CORRECTIVE SERVICES NSW) |
Respondent
REASONS FOR JUDGMENT
This is an application made by Ms Caryn Huntley (“Ms Huntley”) on 5 July 2013 pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). In the application the applicant alleges that the respondent, State of NSW, Department of Police and Justice (Corrective Services NSW) (“CSNSW”) unlawfully discriminated against Ms Huntley on the grounds of her disability in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”).
A “Notice of Termination” was issued pursuant to s.46PH(2) of the AHRC Act on 8 May 2013, which stated that the complaint alleging unlawful discrimination under the DDA had been terminated before the AHRC under s.46PH(1)(i) of the Act.
The Issue
Ms Huntley alleges that CSNSW, an agency or division of the Department discriminated against her on the ground of her disability. Ms Huntley alleges that CSNSW engaged in direct and indirect unlawful discrimination and failed to provide any reasonable adjustments to Ms Huntley’s workplace and employment in breach of ss.5, 6 and 15 of the DDA. Further, to the extent that CSNSW seeks to rely on them, that the terms of ss.21A and 21B of the DDA were not met.
The Application
Ms Huntley asserts that at relevant times she suffered (and continues to suffer) from Crohn’s Disease, a disability for the purposes of s.4 of the DDA (“the Crohns disability”). Further, that, at the relevant times, she also suffered from Idiopathic Hypersomnolance, also a disability for the purposes of s.4 of the DDA (“the IH disability”). CSNSW does not contest that Ms Huntley, at different times had, and continues to have, the above disabilities.
Ms Huntley seeks the following declarations, made against the Department (in light of CSNSW’s relation to the Department):
1)The Department unlawfully discriminated against her in breach of ss.5 and 15 of the DDA.
2)The Department unlawfully discriminated against her in breach of ss.6 and 15 of the DDA.
3)Ms Huntley met all the relevant requirements of her position such that s.21A of the DDA was not met by the Department.
4)The continued employment of Ms Huntley would not have imposed on unjustifiable hardship to the Department and as such s.21B of the DDA has not been made out by the Department.
5)The Department has breached express and implied terms of Ms Huntley’s contract of employment.
In the original application to the Court made on 5 July 2013 she sought the following orders:
1)An order pursuant to s.46PO(4)(b) of the AHRC Act that Ms Huntley be reinstated to her position of Probation and Parole Officer, Clerk Max 6, in the Campbelltown office of the Department.
2)An order pursuant to s.46PO(4)(b) of the AHRC Act that Ms Huntley be promoted to the next available position of Senior Probation and Parole Officer, Clerk Grade 7, in the Campbelltown office of the Department.
3)An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department to re-credit Ms Huntley’s leave entitlements for the period of 11 May 2011 to 15 July 2011 (3 days sick leave, 14 days recreation leave and 30 days long service leave).
4)An order pursuant to s.46PO(4)(b) of the AHRC Act directing the Department to provide a public apology to Ms Huntley in the form of a half page newspaper advertisement in The Sydney Morning Herald within 14 days of the decision which summarises the decision and the declarations and orders made.
5)An order pursuant to s.46PO(4)(d) of the AHRC Act that the Department pay Ms Huntley compensation for loss or damage suffered by Ms Huntley caused by the Department’s contraventions of the DDA and breaches of the contract, namely:
i)Compensation for pain and suffering and breach of contract of an amount of $100,000.
ii)For loss of wages, leave entitlements and superannuation during the period of 18 July 2011 to 3 January 2012 in the amount of $39,448.83 (not including any return that would have been earned on superannuation contributions).
iii)The costs of Ms Huntley seeing a psychologist in response to the Department’s unlawful treatment of her in the amount of $2,534.00 to date and estimated to be $4,550.00 for the next two years.
iv)The loss of wages and superannuation from the denial of promotion opportunities, opportunities to act in a higher grade position and be promoted to a Senior Probation Officer from March 2010 to the date of the decision in these proceedings, estimated to be $50,998.96 to the date of this application (not including any return that would have been earned on superannuation contributions).
6)An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department not to repeat or continue such unlawful discrimination.
7)Costs.
8)Interest.
Ms Huntley filed a “Schedule of Damages” on 5 June 2014 which provided updated details for the amounts sought at [6](5) above, in the following terms:
“Economic Loss from 10 May 2011 to 10 June 2014
a) Lost wages 18 June 2011 to 3 January 2012 of $35,187.03.
Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1).
b) Lost superannuation contributions 18 July 2011 to 3 January 2012.
Notes: 9% of gross wages of $3.166.83.
Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1).
c) Lost leave entitlements 11 May 2011 to 17 July 2011 of $14,249.64.
Notes: Affidavit of Caryn Huntley affirmed 14 February 2014 paragraphs 405 to 406. CH1 pages 397 to 398 and 535 to 543.
-49 days leave entitlements at 290.81 per day (3 days personal leave, 14 days recreation leave, 32 days extended leave).
d) Psychologist costs from 11 May 2011 to 10 June 2014 of $7,312.00.
Notes: CH1 page 594 shows costs at $125.00 per session – fortnightly intervals 75% of costs 78 sessions. Report of Alicia McIntyre page 79 of affidavit of Helen Carter.
e) Loss of Promotion opportunities 1 July 2012 to 10 June 2014.
Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598.
- $284.75 for loss of higher duties allowance 21 May 2011 to 30 June 2012.
- $1,903.96 for period 1 July 2011 to 30 June 2012 [Actual pay grade Maximum 6 ($77,797) Projected pay grade without discrimination of Minimum Grade 7 ($80,096)].
- $1,951.37 for period 1 July 2012 to 30 September 2012 [Actual pay grade ($79,711) Projected pay grade without discrimination Minimum Grade 1 (82098)].
- $1,314.00 for period 1 October 2012 to 30 June 2013 [Actual pay grade Max 6 ($79,711); projected pay grade without discrimination of Maximum Grade 7 ($84,533)].
- $4,817.18 for period 1 July 2013 to 10 June 2014 [Actual pay grade Max 6 (81520 to projected pay ground without discrimination of grade 7 Maximum ($86,472)].
Economic loss from 10 June 2014 to 30 June 2016
a) loss of promotion opportunities 1 July 2014 to 30 June 2017 of $26,042.
Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598.
- $8,322.08 for period 1 July 2014 to 30 June 2015 [Actual pay grade Max 6 ($81520) projected pay grade without discrimination of Minimum Grade 8 ($90,075)].
- $8,733.56 for period 1 July 2015 to 30 June 2016 [Projected pay grade with discrimination of Minimum 7 ($83,962) Projected pay grade without discrimination of Maximum 8 ($92,940)].
- $8,986.49 for period 1 July 2016 to 30 June 2017 [Projected pay grade with discrimination of Maximum 7 ($86,472) Projected pay grade without discrimination of Minimum 9 ($98,401)].
- Based on pay scales for year ended 30 June 2014 as further ones are not available. Avoid need for net present value discount.
b) 75% of costs of psychological treatment at a session every 2 weeks from 1 July 2014 to 30 June 2016 of $4,975.00.
General Damages
a) For pain and suffering and damage to health of $100,000.
Interest
a) Interest on lost salary and superannuation in the period of 18 July 2011 to 3 January 2012 calculated to 10 June 2014 of $7,404.67.
Notes: Calculated at 4 points above reserve bank cash rate for period from pay date to date of commencement of hearing.
b) Interest on damages for lost promotion opportunities of $618.00.
Notes Calculated at 4 points above reserve bank cash rate for period from end of less set out in part e) of economic loss above until first date of hearing.”
At the hearing, Ms Huntley informed the Court that she did not press the fourth declaration (see above at [5]) in relation to unjustifiable hardship. Further that she did not seek orders 1 and 2 (see above at [6]), in relation to reinstatement and promotion as she had found another position (“the NSW Police position”).
The Legislation
Section 4 of the DDA contains the following relevant definitions:
“disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
…
reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.”
Section 5 of the DDA defines direct discrimination as follows:
“(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”
Section 6 of the DDA defines indirect discrimination as follows:
“6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Section 15 of the DDA, relevantly, concerns discrimination in employment:
“(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.”
Sections 21A and 21B of the DDA, relevantly define “inherent requirements” and “unjustifiable hardship” in relation to unlawful discrimination:
“21A Exception—inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).”
Section 46PO of the AHRC Act is in the following relevant terms:
“46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.”
Evidence Before the Court
A number of affidavits were filed by both parties. Prior to the hearing, both parties filed and served a list of objections to the evidence that had been filed.
Ms Huntley sought to read and rely on the following affidavits at the hearing:
1)The affidavit of Kenneth Scott Huntley, teacher, made on 13 February 2014 (“KSH”). CSNSW objected to the entire affidavit of Mr Huntley on the basis of relevance. CSNSW submitted that it was not relevant to a fact in issue. It submitted that Mr Huntley, Ms Huntley’s husband, was not in the workplace where the discrimination allegedly took place, and that the affidavit was only “self-serving” in relation to its assessment of Ms Huntley’s emotions. Ms Huntley submitted that it was relevant as it went to the domestic ramifications of the discrimination, and provided further information in relation to the damages claim. I agreed with Ms Huntley. The objection was overruled and the affidavit was read into evidence.
2)The affidavit of Caryn Huntley, Senior Analyst, Panel Operations, Professional Standards Command, NSW Police Force, made on 14 February 2014 (“CH1”). No objections were made by CSNSW. Ms Huntley provided a document listing “minor amendments” to the affidavit, with no objection from CSNSW.
3)
The affidavit of Helen Katherine Carter, solicitor, made on 28 February 2014 (“HKC”). No objection by CSNSW. Attached to the affidavit were a number of expert medical reports. The authors of these reports were not required by CSNSW for
cross-examination.
4)The affidavit of Caryn Huntley, Senior Analyst, Panel Operations, Professional Standards Command, NSW Police Force, made on 21 May 2014 (“CH 2”). No objection by CSNSW.
CSNSW sought to read and rely on the following affidavits: [the objections made by Ms Huntley and rulings on those objections can be found in Schedule 1 to this judgment. The following evidence was read in light of the evidentiary findings outlined in that Schedule.]
1)The affidavit of Rosemary Caruana (“Ms Caruana”), Assistant Commissioner, Community Corrections at Corrective Services New South Wales made on 1 April 2014.
2)The affidavit of Gai Hillyard (“Ms Hillyard”), Acting Business Relations Manager, Human Resources Division, Corrective Services NSW, made on 1 April 2014.
3)The affidavit of Robert Malcolm Morgan (“Mr Morgan”), retired Director, Community Offender Services, Campbelltown, made on 1 April 2014.
4)The affidavit of Leah Nicholson (“Ms Nicholson”), General Manager, made on 14 April 2014.
5)The affidavit of Nyree Smith (“Ms N Smith”), Manager of Community Corrections, Liverpool, New South Wales, made on 14 April 2014.
6)The affidavit of Wendy Lobley (“Ms Lobley”), Manager, Injury Management at Corrective Services New South Wales made on 23 April 2014.
7)The affidavit of Anna Borg (aka Anita Borg) (“Ms Borg”), Acting Senior Project Officer, made on 3 June 2014 and filed on 4 June 2014. Not read (see further below).
The Applicant’s Case and Evidence
June 2009 to March 2010
The following is derived from “Annexure A” to the application made on 5 July 2013 and the evidence before the Court. Ms Huntley commenced work with CSNSW as a trainee Probation and Parole Officer on 31 January 2005. At the time of the application to the Court, Ms Huntley held the substantive position of Probation and Parole Officer (“PPO”). She held a number of roles that fell within her substantive position over the time of her employment (see [12] – [19] of CH1).
Ms Huntley was diagnosed with the Crohn’s disability in June 2009. As stated above, CSNSW does not contest that Ms Huntley was diagnosed with, or has, the Crohn’s disability.
On the evidence before the Court, Ms Huntley was diagnosed with the Crohn’s disability in mid-2009. She was diagnosed following surgery to remove a peri-anal abscess on 24 June 2009. Ms Huntley was unfit for work between 22 June 2009 and 3 July 2009. A further medical certificate from Ms Huntley’s gastroenterologist, Dr Paul Edwards, declared Ms Huntley unfit to work between 30 July 2009 and 31 August 2009.
As a result of the Crohn’s disability, Ms Huntley required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Ms Huntley’s access requirements could not be anticipated and were often “urgent”.
During the time of Ms Huntley’s diagnoses, and in subsequent weeks, she took approximately 10 weeks of leave. When she returned to work she was capable of performing some duties. However she was unable to perform the “field work” component of the PPO position as a result of her physical needs due to the Crohn’s disability. Dr Edwards prepared a report for CSNSW, as requested by it, on 26 August 2009, to enable a “return to work plan” to be implemented ([62] and [64] of CH1, and see page 86 – 87 of the exhibit to CH1).
Between July 2009 and 9 September 2010 Ms Huntley entered into an informal arrangement with her then manager, Mr Morgan, to allow Ms Huntley to perform modified duties as a PPO. Ms Huntley returned to her PPO position on 31 August 2009.
On the evidence of Ms Huntley, the adjustments to the PPO position were said to be as follows (see [43] – [67] of CH1):
1)She did not perform home visits for the cases, or reports, allocated to her. These were performed by her supervisor, or her PPO colleagues.
2)Her case load was reduced from over 140 hours per month to no more than 80 hours per month. She continued to be assigned “offenders” of all “risk levels”.
3)She was permanently placed on “intake” duties.
4)She was given the “additional duty of being responsible to meet with all ‘walk-ins’.”
5)She responded to all external enquiries from other District Offices and Parole Units.
6)She carried out ad hoc administrative tasks as required.
7)She undertook further report writing and administrative tasks to relieve her colleagues who were in turn relieving her of the need to perform home visits
Ms Huntley alleged that CSNSW did not perform an appropriate workplace assessment with her after she returned to work in late July 2009, or thereafter. No plan for reasonable adjustments was put in place.
This arrangement continued from 31 August 2009 until March 2010.
March 2010 Meeting
In March 2010 Mr Morgan advised Ms Huntley that the informal arrangement could not continue due to constraints that it placed on the operations in the workplace ([80] of CH1 and see [11] of Mr Morgan’s affidavit). At this time no constraints were identified, no formal workplace assessment was conducted, and no complaints from co-workers were provided before the decision to terminate the informal arrangement was made ([70] of CH1).
Ms Huntley was referred for a medical assessment by a Government Medical Officer (“GMO”), Dr Louise Crowle (“Dr Crowle”), due to the cessation of this work arrangement, and her inability to perform field visits due to the Crohn’s disability. Ms Huntley was advised by Mr Morgan that the purpose of the medical assessment was to determine what other roles Ms Huntley would be more suited to as a result of the restrictions on her ability to perform field visits due to the Crohn’s disability (see [80] of CH1).
Following the medical assessment, Ms Huntley was deemed permanently unfit for her substantive position (see pages 116 ‑ 120 of the exhibit to CH1 (“the first report of Dr Crowle”)). Ms Huntley alleged that Dr Crowle was not informed of the “inherent requirements” of the relevant occupational “role”, or requested to identify any reasonable adjustments by CSNSW.
In approximately June or July 2010, CSNSW asked Ms Huntley if she would prefer to be redeployed or medically retired ([88] of CH1 and [12] of Mr Morgan’s affidavit). Ms Huntley indicated her preference for redeployment ([88] of CH1). A representative of CSNSW advised her that there were two alternate positions available. The two positions were both in correctional facilities and required meeting with inmates in secure areas ([91] – [98] of CH1, and see pages 277 – 280 of the exhibit to CH1).
Ms Huntley declined both positions citing their incompatibility with her physical needs as a result of the Crohn’s disability (with reference to the initial medical report) and the security requirements of the correctional facilities ([91] – [98] and [112] of CH1, see
pages 277 – 280 of the exhibit to CH1).
The Expression of Interest Position
In July 2010 Ms Huntley applied for an Expression of Interest position with the Corrections Intelligence Group (“CIG” and “the CIG position”). In making the application, the supervising manager of the CIG position was made aware of Ms Huntley’s sick leave record. On 19 August 2010 Mr Wayne Creighton, Manager, Corrections Intelligence Group contacted Ms Huntley and discussed concerns about her sick leave record. Ms Huntley advised as to her, then, current severity of the Crohn’s disability ([99] ‑ [106] of CH1 and page 283 of the exhibit to CH1).
Ms Huntley was offered the CIG position on merit and commenced the CIG position on 13 September 2010 (see page 295 of the exhibit to CH1). The CIG position was extended twice to, in or around, April 2011, and to, in or around, May 2011. When Ms Huntley left the PPO position, she was informed by Mr Morgan that on leaving she would not be able to return ([118] of CH1).
Ms Huntley was in contact with Ms Lobley, Manager, Injury Management of CSNSW, in relation to finding a further position for relocation, as the CIG position was not permanent (see pages 299 - 300 of the exhibit to CH1).
In late 2010 and throughout 2011 Ms Huntley began to experience extreme fatigue, excessive day time sleepiness and an inability to wake from sleep. Through an extended diagnostic process Ms Huntley was diagnosed with the IH disability on 29 July 2011 ([239] of CH1). During the diagnostic process Ms Huntley took varying amounts of seek leave due to her then undiagnosed IH disability ([130] – [133] of CH1).
In early 2011, Ms Huntley sought permission to complete office duties from home ([137] of CH1). This request was denied and no reasons were provided (see page 327 of the exhibit to CH1, and see further below).
On 22 and 23 February 2011, Ms Hillyard, the Human Resources Manager of the CIG role, sent correspondence by email to Ms Lobley, Ms Nicholson and others, which discussed Ms Huntley’s sick leave (see [138] of CH1 and pages 303-304 of the exhibit to CH1). Ms Huntley was not aware of this communication. Further, Ms Huntley was not approached about her sick leave while in the CIG position, or at any other time.
From 29 April 2011, Ms Huntley commenced applying for a number of other jobs and submitted expressions of interest, including for a NSW Police position (see [145] of CH1 and pages 308 – 326 of the exhibit to CH1).
The 10 May 2011 Meeting
On 10 May 2011, prior to the diagnosis of the IH disability, Ms Huntley underwent an electroencephalogram (“EEG”) as a part of the diagnostic process. After the EEG she felt “lightheaded and dizzy”. She contacted her supervisor (“Ms Janelle Farroway”) to advise that she would not be attending at her work that afternoon ([158] of CH1). She was contacted by her supervisor to request her attendance at a meeting that day. She attended the meeting (see [168] – [174] of CH1). Ms Huntley maintained, under cross examination, that she did not know of this meeting until that day.
The meeting was attended by Ms Huntley, Ms Hillyard, Ms Lobley and Ms Nicholson. At the meeting Ms Lobley informed Ms Huntley that the CIG position would not be further extended, in effect, due to her illness and her extended sick leave record. As such, Ms Huntley would be nominally returned to her PPO position. Ms Lobley informed Ms Huntley that CSNSW had previously intended to “medically retire” Ms Huntley in August 2010, however as she had obtained the CIG position that process did not proceed. Ms Lobley stated that Ms Huntley was sent correspondence by letter in 2010 informing her of CSNSW’s intentions ([175] of CH1). Ms Huntley alleges that she did not receive that correspondence.
At the meeting on 10 May 2011 Ms Lobley informed Ms Huntley that Ms Huntley had two choices, either to agree to a medical retirement or to undertake a further medical assessment. Ms Huntley was advised that as at 20 May 2011 she would be directed to go on leave pending CSNSW’s decision. Further, that as such, she did not have a position to report to following 20 May 2011. Ms Lobley further informed Ms Huntley that CSNSW would be “guided” by the results of the medical assessment as to Ms Huntley’s ability to continue working with CSNSW. Ms Huntley declined the offer of medical retirement.
At the meeting on 10 May 2011, Ms Huntley inquired about CSNSW’s ability to assist her in securing a position with NSW Police. Ms Lobley informed Ms Huntley that CSNSW would not assist with, or consider, an inter-agency transfer. Further, that any application by Ms Huntley for a position with NSW Police would need to be obtained on “merit”.
After the 10 May 2011 Meeting
Following the meeting on 10 May 2011, Ms Huntley went home in a distressed stated (see [186] – [192] of CH1). She attended at her doctor’s surgery on 11 May 2011 in a “distressed” and “anxious state”, allegedly as a result of the meeting with Ms Lobley, Ms Hillyard and Ms Nicholson on 10 May 2011 ([195] at CH1). Ms Huntley was declared unfit to work for the period of 11 May 2011 to 20 May 2011. Ms Huntley submitted that it was CSNSW’s “conduct” at this meeting that caused her to suffer a significant exacerbation of her psychological condition, for which she had been in therapy following her diagnosis of the Crohns disability, and caused her to suffer “Major Depressive Disorder” (see Ms McIntyre’s report attached at HKC8 of Ms Carter’s affidavit and see further below).
On 27 July 2011 Ms Huntley underwent a second medical assessment with Dr Crowle to determine if she was fit for her substantive duties ([237] of CH1). Following the diagnosis of Ms Huntley’s IH disability on 29 July 2011, Ms Huntley informed Dr Crowle of the diagnosis ([240] at CH1).
The second medical assessment found that Ms Huntley was permanently unfit for her substantive position, that is the PPO position (see pages 406 – 413 of the exhibit to CH1). Ms Huntley alleges that, again, CSNSW did not provide the “inherent requirements” of Ms Huntley’s position to Dr Crowle, or ask Dr Crowle to consider what “reasonable adjustments” could be made to her position to enable her to continue in that position.
During the period of 11 May 2011 to 15 July 2011, CSNSW applied Ms Huntley’s accrued leave entitlements, without her consent. Ms Huntley had not applied for, or been granted, leave, and her
non-attendance following 20 May 2011 was in accordance with the direction from Ms Lobley at the 10 May 2011 meeting. CSNSW ceased paying Ms Huntley’s salary on 18 July 2011 and placed her on leave without pay, without her consent, at this time (see [243] – [244] of CH1).
During June 2010 to May 2011, Ms Huntley claims that she wrote to CSNSW with the assistance of a union representative seeking suitable alternate positions to which she could be transferred. Following the 10 May 2011 meeting, CSNSW, through its representatives, including Ms Lobley, indicated that it was not willing to consider transferring Ms Huntley to alternate positions.
In approximately September 2011 Ms Huntley applied for the position with NSW Police and was successful in her application on 3 January 2012. Ms Huntley alleges that CSNSW “delayed” in sending her leave records and performance checks to NSW Police, and only did so after repeated contact and requests from her.
Ms Huntley sought a temporary transfer under s.86 of the Public Sector Employment and Management Act 2002 (NSW) to undertake her secondment with NSW Police. She made such an application by email to Mr Morgan on 16 January 2012 (see [350] of CH1, and
pages 521 ‑ 522 of the exhibit to CH1). Ms Huntley submitted that CSNSW’s “non-action” of this request was another manifestation of its discrimination towards her.
In November 2011 Ms Huntley attended a meeting with Ms Lobley, the CSNSW’s Industrial Officer and director of Workplace Relations (a Ms C Hellams, who did not give evidence before the Court), Ms Huntley’s Union representative and Ms Huntley’s rehabilitation consultant ([297] of CH1). At this meeting Ms Huntley was told that that an application made by her for a position within CSNSW had been deemed unsuitable because of her disabilities because it would be a “high stress position”. Ms Huntley requested that future assessments of the suitability of alternate positions be done in consultation with her or her treating doctors. Further, that no recommendations regarding restrictions on positions based on stress were in either the first or second medical assessment conducted by Dr Crowle ([297] – [299] at CH1).
At the November 2011 meeting Ms Lobley, as a representative of CSNSW, informed Ms Huntley that “Human Resources” were reviewing all available vacancies to locate a suitable alternate position for Ms Huntley. However, Ms Huntley alleges that CSNSW did not request her resume to assess suitability for any such positions ([297] of CH1).
In June 2012 CSNSW asserted (through a representative) that it was not required to secure an alternate position or provide any “adjustments” to Ms Huntley ([373] of CH1 and pages 552-559 of the exhibit to CH1).
On 18 October 2012 Ms Huntley lodged a complaint with the Australian Human Rights Commission alleging contraventions of the DDA by CSNSW. By notice dated 8 May 2013 and pursuant to s.46PH(2) of the AHRC Act, a delegate of the President of the Commission terminated the complaint.
The Contract of Employment
Ms Huntley’s case before the Court also asserts that CSNSW breached a number of implied terms in her contract of employment. Ms Huntley’s case was that the terms of her contract of employment with CSNSW was in part express and in part implied (see [10] at annexure A to the application to this Court).
The express terms were said to be contained in a letter dated 22 December 2004 from CSNSW to Ms Huntley and signed by Ms Huntley on 30 December 2004 (see pages 3-4 of the exhibit to CH1).
The implied terms were said to be applied by operation of law and as a matter of fact. There were said to be (see further below):
1)The term of trust and confidence;
2)The safe work term;
3)The good faith term;
4)The reasonable adjustment term; and
5)The policy compliance term.
CSNSW’s Response and Case
In an amended response filed on 13 November 2013, CSNSW, in essence, “admitted” that Ms Huntley had the Crohn’s disability and the IH disability. CSNSW’s response, while acknowledging that a “work arrangement” had been in place when Ms Huntley returned to work in 2008, contended that it was a “short term, structured return to work program”. CSNSW contended that in working under this arrangement Ms Huntley demonstrated that she was unable to perform an inherent requirement of the position (field work) that comprised “20%” of the position. I note that Ms Huntley asserted that it was 15%. In any event, CSNSW asserted that the remaining “80% internal office based report writing and other administrative work” could not be completed if the external field work was not completed.
As such, CSNSW’s “defence” appeared to be that their conduct in moving to medically retire Ms Huntley was a result of her being unable to perform inherent requirements of her substantive position, with reference to the exemption outlined in s.21A of the DDA.
In relation to the individual circumstances alleged by Ms Huntley in “Annexure A”, CSNSW’s response was as follows.
June 2009 to September 2010
CSNSW denied that there was no formal workplace assessment in place for the period of July 2009 to September 2010. It contended that the arrangement was a “short term, structured return to work program in accordance with medical recommendations and the agreement of all parties”.
It denied that Mr Morgan told Ms Huntley that the arrangement could not continue due to long term constraints on the workplace and that no workplace assessment was done. It contended that Ms Huntley was informed by Mr Morgan that the arrangement was a “short term” arrangement. In initial submissions, CSNSW indicated that it would always have been a short term arrangement as the constraints on the workplace had a serious affect on the safety of the community. No evidence was provided in support of this contention, and no further submissions were made.
It denied the statement attributed to Mr Morgan at [33] above. It denied that, in referring Ms Huntley to the GMO, it did not outline the inherent requirements of the position, which it said were attached to the brief, or that it did not request information on any reasonable adjustments. It stated that no reasonable adjustments could be made to Ms Huntley’s position due to the inherent requirements of the position.
CSNSW stated that Ms Huntley could only be given the options of medical retirement or redeployment. It admitted that she requested redeployment. It admitted that Ms Huntley was offered two positions for redeployment within correctional facilities, but did not admit that they were inappropriate because of the Crohn’s disability. It submitted that the positions were a clear indication of CSNSW attempts to assist Ms Huntley in redeployment.
The CIG Position
In relation to the CIG position, it admitted that Ms Huntley applied for the position, that she obtained the position, and was in the position from 13 September 2010 until in, or around, May 2011. However, it did not admit that the supervisor of the CIG position was told of her sick leave record. However, I note that in the affidavit of Ms N Smith, she admits to giving this information to “a person at CIG” (at [42]).
In relation to the IH disability diagnosis, it could not admit or deny Ms Huntley’s personal medical history and diagnostic process, but did admit that she orally requested to work from home, and that she took varying amounts of sick leave during the duration of her CIG position.
In relation to the correspondence sent to Ms Lobley by Ms Hillyard on 23 February 2011 about finding a new position for Ms Huntley (see pages 303 - 304 of the exhibit to CH1), CSNSW admitted the correspondence. However, it contended that it was its “procedure” that when an employee took over 15 days a year of sick leave, that the situation be referred to Ms Lobley for review in accordance with the “NSW Department of Premier and Cabinet Procedures for Managing Non-Work Related Injuries or Health Conditions”. It was unclear if CSNSW admitted, or did not admit, that Ms Huntley had not been approached at this time in relation to her sick leave.
The 10 May 2011 Meeting
In relation to the meeting on 10 May 2011, CSNSW contended that it had been Ms Huntley who requested the meeting. CSNSW admitted that a letter had not been sent to Ms Huntley in relation to earlier plans to medically retire her. However it did not admit that Ms Huntley was told that her CIG position would not be extended due to her disability or her sick leave record, or that CSNSW had not proceeded with earlier plans to medically retire her because she had obtained the CIG position.
CSNSW contended that it was Ms Nicholson who informed Ms Huntley that the CIG position would not continue after 20 May 2011.
After the 10 May 2011 Meeting
In relation to Ms Huntley’s claims concerning sick leave and other leave entitlements after this time, CSNSW contended that as she was “permanently unfit for her substantive position” there was no other option other than to place her on sick leave. Further, that when Ms Huntley’s leave entitlements ran out, she was told of this and it was suggested that she may be able to obtain assistance from Centrelink.
In relation to the second GMO medical assessment, CSNSW repeated its admissions and contentions in relation to the first medical assessment.
CSNSW did not admit that Ms Lobley “made it clear that they were unwilling to consider transferring” Ms Huntley into alternate positions.
It denied any “delay” in providing documents for Ms Huntley’s application to the NSW Police. Further, that CSNSW had no power to “ask NSW Police” to hire its staff or request transfers. I could not see this was subsequently developed beyond an example of the ongoing treatment of Ms Huntley by CSNSW, and her resulting frustration.
In relation to the November 2011 meeting, CSNSW admitted that Ms Huntley applied for a CIG position with it, however did not admit that the position was not suitable for Ms Huntley because it would be “too stressful”. Further, it denied that Ms Lobley advised Ms Huntley that “Human Resources” were “reviewing” all available positions. CSNSW contended that it provided Ms Huntley with a vocational assessment through an independent provider. It denied that Ms Huntley’s resume was not provided during this process. It admitted that there were no restrictions in relation to stress in the medical assessments.
CSNSW denied that it asserted that it was not required to assist Ms Huntley in securing an alternate position, contending it attempted this by providing her with the vocational assessment provider, and the assessment report provided on 15 September 2011.
Contract of Employment
CSNSW denied that the contract of employment with Ms Huntley was other than the express documents set out in its amended response.
CSNSW did not admit that there was an implied term of “Trust and Confidence”.
CSNSW admitted that the contract contained an implied term that it would perform its obligations in good faith towards Ms Huntley and its other employees.
CSNSW denied that it had breached any implied term that it would comply with its statutory obligations to ensure Ms Huntley was not discriminated against because of her disability, or to provide reasonable adjustments. Again, CSNSW referred to their contention that Ms Huntley was unable to perform the inherent requirements of the position, and that in these circumstances, reasonable adjustments could not be made.
CSNSW admitted that an implied term of the contract was that it would meet the terms of its policies (see “Annexure A”, as attached to the application, at [16]), however contended that all the policies were subject to exceptions.
In all, CSNSW denied any breach of the implied terms set out by Ms Huntley.
Consideration
The Key Issues
In light of the above background, it is clear that large parts of the entire factual account given both by Ms Huntley and CSNSW remain in contention. Bearing in mind the legislative scheme, the following issues arise for determination in the present case:
1)Was CSNSW’s treatment of Ms Huntley, and the decision to “medically retire” her from her employment an act, or acts, of direct disability discrimination within the meaning of s.15 and s.5 of the DDA?
2)Was Ms Huntley’s disability the reason, or one of the reasons, for the treatment and/or decision to “terminate” Ms Huntley’s employment?
3)Did CSNSW’s actions fall within the exceptions of the DDA to discrimination?
4)Was Ms Huntley treated less favourably than a person without her disabilities was, or would be, in the same circumstances?
5)Was CSNSW’s treatment of Ms Huntley, and the decision to “medically retire” her from her employment, an act or acts of indirect disability discrimination within the meaning of s.15 and s.6 of the DDA?
A key question to be answered in relation to the above, is whether CSNSW undertook any appropriate steps to make reasonable adjustments, or to enquire as to the possibility of making reasonable adjustments, to allow Ms Huntley to perform the duties of her position.
To a large extent, this question turns on the view of the medical assessments done in 2010 and 2011 by the GMO, Dr Crowle. Ms Huntley submitted that these assessments did not provide CSNSW with the “defence” that it had undertaken a process to identify possible reasonable adjustments. Further, that as no other workplace assessments had been completed, CSNSW did not make a proper assessment of Ms Huntley’s PPO position, either in line with the various workplace policies in place in CSNSW, including the reasonable adjustment policy, managing sick leave policy and others, or otherwise.
On the evidence, including under cross examination of its various witnesses, CSNSW did not deny that some of its policies had not been followed in relation to Ms Huntley. It appeared to submit that individual situations were influenced by relevant policies which were implemented and followed.
Preliminary Matters
A number of matters require some preliminary note.
First, although I did not understand it to ultimately emerge as a point of dispute between the parties, I note and agree with CSNSW’s submissions that Ms Huntley bears the onus of proof in establishing her claims in relation to disability discrimination (Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (“Gama”)), and the relevant standard is the balance of probabilities.
CSNSW also referred to Gama at [139] and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) for the proposition that the strength of the evidence necessary to meet that standard “will vary according to the nature of what is sought to be proved”. Plainly, that is accepted given the authorities (see also s.140(2) of the Evidence Act 1995 (Cth)).
CSNSW then proposed that the allegations made by Ms Huntley are “serious” and that this must be borne in mind when assessing the strength of the evidence put to support her claims (with reference to Briginshaw).
The resultant difficulty, however, is that CSNSW’s submissions were silent as to how the nature of what is alleged, or what specific parts of the matters alleged, are of the level of seriousness, such as to fall within the particular caution expressed in the authorities to which CSNSW refers. Nor is this otherwise apparent from the circumstances. In short, the submissions lacked helpful particularity.
I also note, relevantly, that Ms Huntley did not allege fraudulent or criminal conduct on the part of CSNSW or those who acted for it (see Neat Holdings Pty Limited v Karajan Holding Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).
In all, therefore, the direction provided by relevant authorities is, obviously, to be accepted. The lack of specificity in CSNSW’s submissions, and the lack of an attempt to relate the proposition asserted to the various pieces of evidence presented, means that it remains a general proposition. That is, without any real focus on the evidence necessary to assist in the question of whether the allegations can be made out on the standard of the balance of probabilities. Although CSNSW noted that in Gama (at [139]) the Full Federal Court stated that “the strength will vary according to the nature of what is sought to be proved”, the submissions remained unhelpful in relation to such an analysis.
In any event, I have sought to proceed in a manner consistent with the direction provided by the authorities.
Second, while CSNSW, correctly, submitted that in matters of this type Ms Huntley bears the relevant onus in establishing her case, this does not mean that CSNSW is relieved of the task of arguing why, or how, Ms Huntley’s case fails in this respect. That is, to put a coherent case, probative of the evidence, against those matters asserted by Ms Huntley.
In the current case, while Ms Huntley’s written submissions focussed on key issues said to establish her case, CSNSW’s written submissions were largely silent in relation to these matters. I note that CSNSW submitted that it operated on the basis of “remarks” said to have been made by Ms Huntley’s counsel in this matter, that “written submissions would not be necessary”. Further, that had it understood otherwise, the submissions “would have been fuller” (see [1] of CSNSW’s outline of submissions).
While some focus was directed to some aspects of Ms Huntley’s “key issues” in CSNSW’s oral submissions, its focus was largely on the question of “reasonable adjustments”. As presented, I understood CSNSW’s primary (although plainly not exclusive) position as follows. Relying on s.21A of the DDA, because of Ms Huntley’s disability (noting that Ms Huntley was diagnosed with two relevant conditions at different times), she was, and would be, unable to carry out the inherent requirements of the relevant position of her employment even where CSNSW made reasonable adjustments to that position for her. CSNSW’s oral submissions did not satisfactorily explain the earlier general assertion that reasonable adjustments could not be made given the nature of the requirements of the position.
In this light, CSNSW’s submissions directed attention to four different periods in the chronology of relevant events. These were primarily, although not exclusively, linked to “changes” to Ms Huntley’s health, and the various attempts which CSNSW said were made to provide reasonable adjustments to Ms Huntley’s work circumstances. In this CSNSW properly understood that it bore the onus of proof in establishing this “defence” to Ms Huntley’s charges.
Third, at the end of the final day of the hearing in this matter, CSNSW sought, and was granted, leave to file and serve further written submissions being in the nature of references to relevant authorities. This was defined as essentially a list of authorities, in relation to [83] – [85] of CSNSW’s written submissions. [Note: There are two paragraphs in the submissions numbered [83]. The reference here is to the “second” [83] beginning at page 8 of the written submissions.] These paragraphs of CSNSW’s submissions deal with some aspects of the inherent requirements for Ms Huntley’s position of employment and in relation to the question of whether CSNSW had made reasonable adjustments in 2010 such that Ms Huntley could continue in the role she held at that time.
The subsequent written submissions from CSNSW however go beyond the limited leave granted. They seek to address broader matters of direct and indirect discrimination, and make, albeit brief, submissions in relation to the “inherent requirements” matter.
I have not had regard to CSNSW’s further written submissions in relation to the matters other than the “inherent requirements” matter. Even if CSNSW had not anticipated, or even had misunderstood, that Ms Huntley would provide an outline of written submissions at the beginning of the last day of hearing, it would not be fair to Ms Huntley to consider these submissions without having given her the opportunity to respond.
In any event, the opportunity for oral submissions was available to CSNSW and the leave granted was clear in its focus and limitation. Ultimately, notwithstanding what CSNSW may have understood from Ms Huntley’s counsel, the choice as to how to present its case and the manner of presentation was one for CSNSW.
Fourth, and further, this latter point is also relevant to the presentation generally of CSNSW’s evidence. As set out above, at the hearing, CSNSW sought leave to read the affidavit of Ms Anita Borg made on 3 June 2014. Ms Borg was said to be Ms Huntley’s direct supervisor at part of the relevant time. At directions in this matter over six months before the commencement of the hearing, a number of orders were made to enable the progression of this case to a final hearing. Amongst those orders, an order was made giving CSNSW the opportunity to file evidence by way of affidavit by a date about two months before the hearing, and a date set reasonably in the sequence of the events leading to the final hearing.
It is the case, that Ms Huntley was given an opportunity to file further affidavit evidence in light of the timetable made earlier in these proceedings, as evidence in reply to CSNSW’s evidence. This time was extended prior to the hearing due to the initial late filing of CSNSW’s evidence. However, this was done at an earlier time to the hearing. It is also to be noted that that timetable sought to give the parties the respective and reasonable opportunity to prepare their cases for the final hearing.
The relevant order was made on 30 October 2013. CSNSW was given until 1 April 2014 to file all affidavits to be relied on. With the consent of Ms Huntley this was extended to 15 April 2014.
It is to be remembered, as set out above, that the strategy employed by CSNSW in these proceedings, as illustrated by the approach in the written submissions, was to focus on the “defence” of reasonable adjustments and inherent requirements (s.21A of the DDA), rather than, additionally and directly engaging with Ms Huntley’s approach of seeking to establish either direct or indirect discrimination under the DDA.
In that latter context, I accept that the evidence of an immediate and direct supervisor of Ms Huntley during part of the period of relevant employment would be an important part of CSNSW’s case in addressing some of Ms Huntley’s claims.
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