Jain v Special Broadcasting Service Corporation - [2022] FedCFamC2G 814

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jain v Special Broadcasting Service Corporation [2022] FedCFamC2G 814

File number: SYG 909 of 2020

Judgment of: JUDGE CAMERON

Date of judgment: 6 October 2022

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – workplace right – whether a worker’s duty under the Work Health and Safety Act 2011 (NSW) to take reasonable care for his or her own health and safety while at work was a role or responsibility under a workplace law – meaning of “at work”

INDUSTRIAL LAW – discrimination because of disability – meaning of “disability” – distinction may be drawn between adverse action taken because of a disability and its manifestations, and adverse action taken because of the consequences of a disability and its manifestations – inherent requirements of the position

WORDS AND PHRASES – at work, disability

Legislation:
Disability Discrimination Act 1992 (Cth) s 4

Fair Work Act 2009 (Cth) ss 340, 341, 342, 351

Occupational Health and Safety Act 2004 (Vic) s 25

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19

Special Broadcasting Service Act 1991 (Cth) s 5

Work Health and Safety Act 2011 (Cth) ss 7, 28, 29

Work Health and Safety Act 2011 (NSW) ss 7, 28, 29

Cases cited:
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190

Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150

Hodkinson v Commonwealth (2011) 248 FLR 409

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

Railpro Services v Flavel (2015) 242 FCR 424

Shizas v Commissioner of Police (2017) 268 IR 71

Stephens v Australian Postal Corporation [2011] FMCA 448

Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547

Yu v ACT Education Directorate [2022] FCAFC 110

Division: Fair Work Division

Number of paragraphs: 138

Date of last submissions: 19 August 2021

Dates of hearing: 22-24 June 2021

Place: Sydney

The Applicant: The Applicant appeared in person by video-link

Counsel for the Respondent: Ms P. Bindon

Solicitors for the Respondent: Mills Oakley

Table of Corrections

8 November 2022 In paragraph 5, “September 2017” has been replaced with “October 2018”.

8 November 2022 In paragraph 25, “10 December 2010” has been corrected to “10 December 2019”.
ORDERS

SYG 909 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PALLAVI JAIN

Applicant

AND:
SPECIAL BROADCASTING SERVICE CORPORATION ABN 91 314 398 574

Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

6 October 2022

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
Introduction

The respondent (“SBS”) is a statutory body that provides multilingual and multicultural radio, television and digital media services. On 15 April 2013 the applicant, Ms Jain, commenced employment with SBS as senior producer in the Hindi language team in its Audio and Language Content (“ALC”) Division. On 9 December 2019 she was dismissed.
On 16 April 2020 Ms Jain commenced this proceeding seeking reinstatement, alleging that her employment had been terminated contrary to ss.340 and 351 of the Fair Work Act 2009 (“FW Act”).
On 19 April 2021 the parties filed a statement of agreed facts in which the parties agreed on certain facts but many of them were background in nature and not significant to the issues to be decided.
Background
The proceeding arises out of a history of difficult relations between Ms Jain and Kumud Merani, the executive producer of the Hindi Language Team at SBS, to whom she reported. Ms Jain complained to SBS in 2015 that she had been bullied and harassed by Ms Merani, a complaint that an external investigator found was made out. A mediation between Ms Jain and Ms Merani was held on 13 October 2016 but failed to resolve their differences. Ms Jain subsequently made a Comcare claim in which she alleged that she suffered adjustment disorder arising out of her employment at SBS. She was on related compensation leave from 3 October 2016 until 7 September 2017, when Comcare decided to terminate compensation payments. Ms Jain appealed against that determination to the Administrative Appeals Tribunal (“AAT”).
Ms Jain returned to work in December 2017. In October 2018 the AAT set aside Comcare’s 7 September 2017 decision to terminate compensation payments. On 1 November 2018 Ms Jain was told to be absent with pay while a return to work (“RTW”) plan was formulated with rehabilitation provider Carfi NSW. Ms Jain was placed on unpaid personal leave as from 23 January 2019, following which she lodged a claim for incapacity payments with Comcare which, following another AAT appeal, was successful. In about April 2019 Ms Jain relocated to India for financial reasons but continued to engage with Carfi NSW in respect of RTW planning. Ultimately, Ms Jain and Comcare were unable to reach agreement on a RTW plan and on 9 December 2019 SBS dismissed her.
Medical experts concluded that Ms Jain suffered from, variously:
(a)“chronic adjustment disorder (with mixed anxiety and depression)” – 19 December 2016;
(b)no psychiatric disorder – 8 August 2017; or
(c)“aggravation of anxiety disorder”, with her interactions with Ms Merani being a stressor contributing to the aggravation – 6 September 2018.
In the period following her 2015 complaint, Ms Jain requested on more than one occasion that she no longer report to Ms Merani and that she report to someone else. As a result, on 29 June 2016 she was assigned to report to Renzo Colla, a program manager from a different team, who was to fill the role of “relationship, performance and support manager” and act as an intermediary between Ms Jain and Ms Merani. However, he was unsuccessful in enabling Ms Jain and Ms Merani to work together on an ongoing basis. Following a mediation on 4 October 2017 that unsuccessfully attempted to repair the working relationship between Ms Jain and Ms Merani, a RTW plan was agreed by which Ms Jain reported to Ms Merani under the supervision of Maurizio Pascucci, program manager ALC.
The parties agreed that:
1.46It was not possible to return the Applicant to her former role as [a senior producer] in the Hindi Language Team because of her inability to work with Ms Merani without jeopardising her health.
1.47Consequently, the Applicant worked with the rehabilitation provider Carfi, as appointed by the Respondent, from October 2018 until August 2020, to find an alternative position for the Applicant within SBS or with another employer. With the assistance of the rehabilitation provider the Applicant applied, unsuccessfully, for 73 alternative roles.
A chronology of events is Attachment A to these reasons.
Pleadings
Statement of claim
The historical background to Ms Jain’s dismissal that she alleged in her statement of claim is largely admitted and the elements that are admitted were included in the preceding summary. Ms Jain also alleged that the reasons she was given for her dismissal were that, for a significant period of time, she had been:
(a)absent from work; and
(b)unable to report to Ms Merani.
Ms Jain contended that SBS contravened ss.340 of the FW Act by dismissing her:
(a)because she had exercised her workplace right under s.28(a) of the Work Health and Safety Act 2011 (NSW) and (Cth) (“WHS Act”) to take reasonable care for her own health and safety, namely by not attending work because reporting to Ms Merani would “impact her health and safety”; and
(b)because she had exercised her workplace right under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to be on compensation leave as a result of incapacity arising out of a compensable injury, namely psychiatric illness largely caused by her employment with SBS.
Ms Jain also contended that SBS dismissed her because she could not report to Ms Merani and so contravened s.351 of the FW Act. She alleged in that regard that SBS had dismissed her because she had an illness that reporting to Ms Merani would aggravate, namely an anxiety disorder. Ms Jain encapsulated her s.351 claim in the following terms:
By dismissing the Applicant because she cannot report to Ms Merani, the Respondent is taking adverse action against her because of her illness.
Ms Jain sought reinstatement and the provision of a safe workplace in order that she could return to work.
Defence
SBS admitted that dismissal was adverse action under s.342 of the FW Act and that Ms Jain had been diagnosed in September 2018 with a pre-existing anxiety disorder which had been intermittently aggravated by work-related stressors but denied that she had:
(a)a workplace right under s.28(a) of the WHS Act “to take reasonable care for her own health and safety”; or
(b)been absent from work in the exercise of:
(i)a purported workplace right under s.28(a) of the WHS Act to take care for her safety; or
(ii)a purported workplace right under s.19 of the SRC Act to be on compensation leave due to an incapacity for work resulting from a compensable injury.
SBS denied dismissing Ms Jain because she had exercised a workplace right or “because of her illness”.
Statement of Agreed Facts
Material elements of the statement of agreed facts were summarised earlier in these reasons. The parties also agreed in the statement of agreed facts that the issues to be determined in this case were the following:
Issue 1:Did the Applicant’s dismissal contravene section 340 and section 351 of the Fair Work Act 2009 (Cth) and constitute adverse action by the Respondent? This is the overarching issue to be determined by the Court, and in this case the key issues necessary for answering that overarching issue are issues 2-5 below.
Issue 2:Does the obligation on a worker under section 28(a) of the Work Health and Safety Act 2011 (Cth) to take reasonable care for his or her own health and safety while at work constitute a “workplace right” within the meaning of section 341(1) of the Fair Work Act 2009 (Cth) (Alleged Workplace Right)?
Issue 3:If so, did the Applicant exercise the Alleged Workplace Right during her employment with the Respondent?
Issue 4:If so, was the Applicant’s exercise of the Alleged Workplace Right one of the substantive and operative reasons for the termination of the Applicant’s employment by the Respondent?
Issue 5:Did the Applicant have a “physical or mental disability” for the purposes of section 351 of the Fair Work Act 2009 (Cth) (Alleged Disability) during her employment with the Respondent?
Issue 6:If so, did the Respondent terminate the Applicant’s employment because of that disability?
Legislation
The FW Act relevantly provided:
340Protection
(1)A person must not take adverse action against another person:
(a)     because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)     to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
341Meaning of workplace right
Meaning of workplace right
(1)A person has a workplace right if the person:
(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)     is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
…
351Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2)However, subsection (1) does not apply to action that is:
(a)     not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)     taken because of the inherent requirements of the particular position concerned; or
(c)     if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
…
Ms Jain cited both the Commonwealth WHS Act and the New South Welsh WHS Act in her statement of claim. Being elements of a nationally harmonised system of occupational health and safety, they both provide:
28 Duties of workers
While at work, a worker must:
(a) take reasonable care for his or her own health and safety …
…
However, as the relevant conduct occurred in New South Wales, it will be that State’s Act which applies in this case.
The SRC Act is concerned with rehabilitation from and compensation for injuries to employees of the Commonwealth and, relevantly, with the provision of rehabilitation services and of weekly payments in the event of impairment or incapacity to work. For the purposes of the SRC Act, the Commonwealth includes Commonwealth authorities which that Act defines as including bodies corporate incorporated for a public purpose by a law of the Commonwealth. SBS exists as a body corporate by virtue of s.5 of the Special Broadcasting Service Act 1991 (Cth).
Applicant’s Evidence
Pallavi Jain
Ms Jain deposed that she commenced employment with SBS as a senior producer on 15 April 2013.
On 27 July 2014, she raised concerns with SBS about how she was being treated by Ms Merani and on 15 November 2015 she made a formal complaint of bullying and harassment against Ms Merani. An internal investigation found Ms Jain’s complaints were not substantiated. On 24 March 2016 the Media, Entertainment and Arts Alliance (“MEAA”) initiated a Fair Work Commission (“FWC”) dispute on her behalf, following which an external investigation was conducted by WorkDynamic Australia who found that Ms Merani had engaged in conduct that constituted bullying and harassment. On 28 July 2016, Ms Page, People and Culture Business Partner, advised that SBS did not consider a permanent reporting line change for Ms Jain was a viable solution and, in October 2016, arranged a mediation between SBS, Ms Jain and Ms Merani which was unsuccessful.
A Comcare claim Ms Jain had made was accepted on 16 December 2016, during which process Dr Gertler, psychiatrist, diagnosed her with “adjustment disorder with anxious and depressed mood”. As a result, she was given compensation leave between 3 October 2016 and 7 September 2017. Compensation payments were made, terminated after a period, and later reinstated on 16 October 2018 following an AAT appeal and further expert medical evidence.
Between December 2016 and October 2017 Ms Jain sought a change of reporting line on the basis that reporting to Ms Merani posed a risk to her health and safety. Between October 2017 and November 2017, the parties attended a series of mediations where a RTW plan was agreed by which she would report to Ms Merani under the supervision of Mr Pascucci. She returned to work in December 2017.
From 1 October 2018 to 30 October 2018 Ms Jain was on annual leave. On 26 October 2018, (i.e. after the AAT appeal decision) she was informed by Ms Pitt that a new RTW plan would be have to be implemented in consultation with a rehabilitation provider, Carfi NSW, and that she was not to return to work on 1 November 2018, although SBS would continue to pay her her normal remuneration. In November 2018, Ms Jain began working with Carfi on a rehabilitation plan and on 10 January 2019 Mr Griffin told her that she would be placed on unpaid leave from 23 January 2019. In February 2019, Ms Jain filed a claim with Comcare for incapacity payments which was rejected on 14 March 2019. On 17 March 2020 the AAT set aside Comcare’s decision and determined that Ms Jain was entitled to compensation for incapacity.
Ms Jain said that as a result of Comcare’s refusal to pay income support during the rehabilitation program, she was compelled to relocate temporarily to India. In June 2019, she and Carfi agreed to an extension of the rehabilitation program. On 20 September 2019, SBS made alterations to the rehabilitation plan, which Ms Jain subsequently advised Carfi were not agreed to by her. On 10 December 2019, Comcare rejected her appeal against the alterations.
On 9 December 2019, Ms Wicks sent Ms Jain a letter terminating her employment immediately because she had been absent from work and unable to report to the executive producer of the Hindi Language Team, Ms Merani.
Respondent’s Evidence
Joshua Griffin
Mr Griffin started working at SBS in April 2016, first as a People and Culture Business Partner, and from March 2019 as the Head of Inclusion and Talent Development.
Mr Griffin deposed that SBS produces programs in 63 different languages and has 68 different language teams. The structure of each similarly-sized language team is roughly the same with the executive producer at the top, followed by senior producers or producers and casual staff. Smaller teams have fewer staff. The executive producer reports to a program manager who sits across several language teams. The senior producers in each team develop and pitch content which the executive producers decide whether or not to run. Part of the executive producer’s role is to give feedback to the senior producers and Mr Griffin deposed that it was vital that they were able to communicate freely and work closely together.
Mr Griffin deposed that the Hindi team typically consisted of an executive producer, a senior producer and two producers, with casual staff assisting and that because of budgetary constraints there was little ability to expand the structure of the team.
Initial Dealings with Ms Jain
Mr Griffin deposed he first met Ms Jain in early December 2017, after she had returned from time off for medical reasons. Mr Griffin reviewed Ms Jain’s work history and the chronology of events that had led to her taking time off work and understood that in 2014 she had raised concerns about her working relationship with Ms Merani but also that no formal action had been taken. He understood Ms Jain and Ms Merani had a poor working relationship and that Ms Jain's concerns about Ms Merani related to the way that Ms Merani provided her with feedback and also with a perceived lack of recognition from Ms Merani for her work.

Mr Griffin deposed that SBS decided assign Mr Pascucci, Ms Merani’s direct manager, to the Hindi team as a relationship manager with the goal of attempting to repair the working relationship between Ms Jain and Ms Merani. While Ms Merani maintained responsibility for the day to day editorial decision-making, he would assist by being the point of contact for Ms Jain on non-editorial matters including performance feedback and leave requests. Mr Griffin deposed that it was not feasible for Ms Jain, as a senior producer, not to be able to collaborate and work directly with Ms Merani and if that, if they were unable to restore their workable professional relationship, then the work of the Hindi team would be unable to be carried out effectively.
Mr Pascucci’s role as relationship manger was intended to be temporary and for only as long as it took Ms Jain and Ms Merani to return to a workable professional relationship. However, it was in place from January 2018 until Ms Jain’s dismissal.
Ms Jain’s Comcare Claim
Mr Griffin deposed that he had been aware that Ms Jain made a Comcare claim in October 2016 and had read the materials relating to it.
Ms Jain’s Complaint to the Media, Entertainment and Arts Alliance
Mr Griffin deposed that on 3 August 2018 he received a phone call from the MEAA on behalf of Ms Jain and was told that Ms Jain alleged that Ms Merani had retroactively altered a work schedule for the Hindi program to substantiate a complaint that Ms Merani had made about Ms Jain’s performance. The allegation was not substantiated upon enquiry by an SBS people and Culture Business Partner.
AAT Determination and Ms Jain’s RTW Plan – October 2018 – November 2018
Mr Griffin deposed that he was aware of a 16 October 2018 AAT determination which confirmed that Ms Jain was entitled to compensation for “an aggravation of an anxiety disorder for an injury that she sustained on 3 October 2015”.
Termination of Ms Jain’s Employment
Mr Griffin deposed he was not directly involved in the decision to terminate Ms Jain’s employment but was included in a conversation between Ms Wicks and Mr Bell about the potential of that happening because he was one of the members of the People and Culture team who had some awareness of the background of Ms Jain’s situation.
Maurizio Pascucci
Mr Pascucci was program manager for the SBS’s programs in Bangla, Gujarati, Hindi, Malayalam, Nepali, Punjabi, Sinhala, Tamil and Urdu. He deposed that, generally speaking, each SBS language team had an executive producer and various additional producers and that the larger teams also had a senior producer. Senior producers and additional producers all reported to their relevant executive producer who in turn reported to a more senior manager who, in the case of the subcontinental language teams, was him. The executive producers reporting to him kept him informed of the content being produced, editorial issues and any human resources issues.
Professional Interactions with Ms Jain
Mr Pascucci deposed that on 9 November 2017 he was advised by his outgoing predecessor as program manager, Ms Veksler, that Ms Jain had been having issues with her executive producer, Ms Merani. On 29 November 2017 Mr Pascucci had a meeting with the then-acting ALC Director, Ms Spilsbury, the then-acting Network Manager, Mr Lopez and Ms Vexler during which he was told about an investigation involving Ms Jain and Ms Merani, which established that Ms Merani had made mistakes in managing Ms Jain and about a resulting breakdown of their relationship. He was also told of a proposal that he act for a period as a “relationship performance and support manager” and that although Ms Jain would report to Ms Merani, he would manage the relationship and be involved in any meeting dealing with employment issues, including performance. As part of the arrangements that were put in place, Ms Jain and Ms Merani were not to talk to or sit next to each other but to write by email, copied to him.
Mr Pascucci deposed that in his role as relationship performance and support manager he was aware that Ms Jain had asked SBS on a number of occasions whether she could change her reporting lines and not report to Ms Merani but it was not possible because it was necessary, particularly given the small size of the language programs, for the senior producers and the executive producer for each language team to work closely together and to communicate directly and freely with each other. Mr Pascucci said that a senior producer’s role was “to pitch and develop content” while an executive producer's role was to exercise editorial control over content and provide senior producers with feedback on their story ideas. It was also not possible for Ms Jain to transfer out of the Hindi team. He said:
This is because it is essential that the people working in these teams are fluent in the relevant language that the team is producing stories in. From my point of view, this is especially important because while I have ultimate responsibility for editorial issues across the nine language teams that I manage, I do not speak most of those languages, so I am heavily reliant on the EP of each language team to be exercising editorial judgment over the content and communicating with their SPs about it.
Mr Pascucci deposed that Ms Jain applied for a number of positions elsewhere in SBS but was not successful.
After a meeting in August 2018 between Ms Jain, Mr Griffin, a union representative and himself, he continued in the role of relationship performance and support manager but Mr Griffin became more involved in managing Ms Jain.
Mr Pascucci conceded that he had not been successful in his role as relationship performance and support manager. In that regard he deposed:
Despite my best efforts, the goal sought to be achieved by me performing the role of “relationship performance and support manager” was not ultimately attained because Ms Jain and Ms Merani’s professional relationship was not restored to a workable state. Of course, I am not privy of the true sentiments they harbour for each other. However, in my observations, while Ms Merani was able to, at least at face value, move on and work towards a workable professional relationship, Ms Jain was unable to let go of her negative assumptions towards Ms Merani. As I relayed to Ms Jain on several occasions, including during the meeting with the union representative in July 2019, I found that she often implied a confirmation of her negative assumptions about their relationship into communications she received from Ms Merani, despite there not being anything in the communications that, objectively viewed, indicated any clear antagonism.
Mr Pascucci said that he was coaching Ms Merani to adopt a certain style of leadership and she was responding and following his instructions. In cross-examination by Ms Jain in person, he continued:
… to be frank, I feel that I didn’t manage to move you. We spoke often about the fact that in order to rebuild the relationship we have to let go of some negative assumption because the negative assumption are going to inform whatever you do within that relationship and that makes you tend to read as an attack many things that are not necessarily an attack. You remember we spoke often about if you’ve got negative assumption, test them before jumping to conclusion. My feeling is that I didn’t manage to help you remove those negative assumption. So while on face value, to be honest, I managed to get Ms Merani out of the space, I never managed to – with you to – to help you open up enough to accept a level of trust. I didn’t manage to do that.
Termination of Ms Jain’s Employment
Mr Pascucci deposed he was not involved in the decision to terminate Ms Jain and became aware of her termination in 2019 when his manager advised him.
Vanessa Pitt
Ms Pitt was SBS’s rehabilitation manager. One of her roles was managing Comcare claims at SBS.
Dealings with Ms Jain
Ms Pitt deposed that she first met Ms Jain on 28 April 2016 for a wellbeing check, arranged by Ms Page, because of Ms Jain’s absences from work. Ms Jain explained the issues she had with Ms Merani which had led to their strained working relationship. She deposed that she did not recall Ms Jain referring to anything specific about the interactions or what exactly the problems with her interactions with Ms Merani were. It was her evidence that Ms Jain seemed on edge and that she offered her their employee assistance program services, but Ms Jain said she was well supported by her general practitioner and psychologist.
Ms Pitt deposed that on 15 June 2016, she again reached out to Ms Jain as she had been away from work for 3 weeks, but Ms Jain did not disclose what her issues were.
Ms Jain’s Comcare claim and related medical examinations
Ms Pitt deposed that on 16 December 2016, she became aware that a Comcare claim made by Ms Jain had been accepted in respect of mental injuries that she said had resulted from her interactions with Ms Merani. Comcare had accepted that she had been diagnosed as suffering from an adjustment disorder with mixed emotional features that had been caused, at least in part, by work-related factors. Ms Pitt deposed that she had the overall responsibility for returning Ms Jain safely to work and worked directly with her to implement her RTW plan.
Ms Pitt deposed that on 19 December 2016 she received a call from Ms Jain and Dr Pham, Ms Jain’s treating GP. During that call Ms Jain said she needed to report to a different manager. Ms Pitt deposed that Ms Jain said that the managers that SBS had proposed were not to her liking and was of the opinion that she knew best who her manager should be. She later received a medical certificate from Dr Pham in which Ms Merani, Ms Veksler and Mr Colla were listed as excluded managers.
Ms Pitt deposed that on 30 January 2017 a case conference was arranged between Ms Suatoni, a rehabilitation consultant from Pinnacle Rehabilitation, Dr Pham, Ms Jain and Ms Jain’s psychologist to discuss Ms Jain’s capacity for work, general medical status, reporting lines and SBS’s offer of mediation to repair the relationship between Ms Jain and Ms Merani. On 2 March 2017 Ms Pitt advised Ms Jain that she would arrange an independent medical examination and arranged an appointment with a Dr Lee but Ms Jain refused to see him on the basis that she “did not think that he was an appropriate person to assess her”. The appointment was cancelled.
On 3 May 2017 Ms Pitt and Ms Jain had a case conference at which Ms Jain asked why she could not report to a Victorian manager. On 4 May 2017, she emailed Ms Jain notifying her that she had arranged for her to see Dr Lewin, psychiatrist, on 16 May 2017. On 15 May 2017 she received an email from Ms Jain which contained a list of concerns regarding her return to work and reporting lines.
On 24 May 2017 she received a copy of Dr Lewin’s report regarding Ms Jain and forwarded it to Comcare. In that report, Dr Lewin expressed the opinion that Ms Jain was not suffering from a mental health disorder. Ms Jain disagreed with aspects of Dr Lewin’s report. Comcare then arranged for Ms Jain to see Dr Walker, psychiatrist, who agreed with Dr Lewin. On 10 August 2017, Comcare declined Ms Jain’s Comcare claim.
According to Ms Pitt, between 3 September 2017 and 16 March 2018, a five and a half month period, Ms Jain took 411.3 hours of personal leave, being almost 11 weeks.
Mediation
Ms Pitt deposed that on 4 October 2017, a mediation was arranged in an attempt to repair the relationship between Ms Merani and Ms Jain so they could resume working together. The mediator, Ms Garnett, had met with Ms Merani and Ms Jain in pre-mediation meetings, to scope out what was going to be discussed. Both parties agreed that the purpose of the mediation was to mend their relationship. On the day of the mediation Ms Jain brought her solicitor and, instead of focusing on mending the relationship with Ms Merani, focused on trying to change her reporting line. The mediation did not result in any agreed resolution.
Requests by Ms Jain for changes to reporting lines
Ms Pitt deposed that Ms Jain requested, on a number of occasions between December 2016 and October 2017, that her reporting line be changed. She said that, in an effort to meet Ms Jain’s concerns, her reporting line was changed on an interim basis to Mr Colla, a program manager in a different team, for him to manage day to day issues that arose between her and Ms Merani, although Ms Merani allocated work to Ms Jain. Ms Pitt deposed the point of this reporting line change was to allow some space to help Ms Jain and Ms Merani restore their relationship gradually and remove any difficult issues from their discussions. It was intended to be temporary.
Ms Pitt deposed that on or around late 2017 that Ms Reilly advised her that Ms Jain no longer wanted to report to Mr Colla. Mr Pascucci was appointed to manage the restoration of the relationship between Ms Jain and Ms Merani although he did not have Hindi language skills. Neither Mr Colla nor Mr Pascucci were successful in managing the restoration of the relationship.
Detail of Ms Jain’s return to work plan
Ms Pitt deposed that she played a key role in Ms Jain’s RTW plan and was the point of contact with her doctor, psychologist and rehabilitation providers.
It was Ms Pitt’s evidence that on 22 December 2017, she gave a draft RTW plan to Mr Griffin who was the “Business Partner” looking after the case. That draft provided that Ms Jain would return to work on 28 November 2017 two days a week. Mr Pascucci was assigned to manage the relationship during this period. Ms Jain returned to full hours from 30 January 2018 and Ms Pitt deposed that from then until 16 March 2018 she took 194.5 hours of personal leave.
Ms Pitt deposed that on 6 September 2018 Dr Walker undertook a desktop review of Dr Pham’s clinical notes and those of Ms Jain’s treating psychologist and advised that it was his opinion that Ms Jain did not have an adjustment disorder, but rather was suffering from intermittent aggravations of her pre-existing anxiety disorder, with her interactions with Ms Merani being a stressor contributing to the aggravation.
Administrative Appeals Tribunal decisions regards Ms Jain
Ms Pitt deposed that on 26 October 2018 she received a copy of Dr Walker’s report and after reading it was of the view that SBS could not continue to allow Ms Jain to work with Ms Merani, even with their limited contact. That same day she sent an email to Ms Jain regarding her Comcare claim having been accepted with a new diagnosis and proposed next steps in her rehabilitation.
Attempts to assist Ms Jain to find alternative employment
Ms Pitt deposed that on 9 October 2018 she made various enquiries to seek an alternative role for Ms Jain including approaching News and Current Affairs, advertising sales and other departments looking to fill translator roles. She also researched other government roles for Hindi language translators and continued to search even after Carfi became involved in the RTW plan. She also presented Ms Jain’s case anonymously to a Comcare Care Manager group she was involved with to see if any other Commonwealth agencies might be able to take her on under a trial arrangement but none was able to accommodate her.
It was Ms Pitt’s evidence that Ms Jain was not interested in any of the roles suggested, particularly roles as an interpreter or translator. She deposed that she was aware that Ms Jain sought new roles allowing her to work independently, but was of the opinion they were not always appropriate to her experience. Ms Jain applied unsuccessfully for 73 roles while working with Carfi.
Ms Pitt deposed that Ms Jain was in India in October 2018 while she was trying to find her alternate employment. Ms Jain advised that she would return to Australia on about 1 November 2018 but on 31 October 2018 provided a certificate from an Indian hospital saying she was unfit to return to work from 31 October 2018 to 5 November 2018. On 8 November 2018 Ms Jain emailed saying she had returned to Australia but had to delay her return to work because of health concerns.
Ms Pitt deposed that on 13 November 2018 Mr Marques, the rehabilitation consultant from Carfi, met with Ms Jain for an “initial assessment” and sent Ms Pitt a copy of his report. Ms Pitt also received a Vocational Assessment Report from Mr Marques on 4 January 2019. According to Mr Marques, Ms Jain only agreed to seek journalist positions or roles such as television and radio presenter/producer, freelance writer, political analyst and media and communication officer. She refused to entertain the idea of taking up other roles for which she had transferrable skills, such as a translator or interpreter.
It was Ms Pitt’s evidence that on 15 January 2019, she advised Mr Marques that there were two SBS roles potentially suitable for Ms Jain. On 16 January 2019 Ms Jain cancelled a meeting with Carfi about applying for those roles because of illness. Shortly afterwards Ms Jain provided a medical certificate from Dr Pham saying that she was fit to return to her pre‑injury duties, but with the restriction of “not report to Kumud Merani”.
Ms Pitt deposed that on 25 January 2019 she met with Ms Jain and Mr Marques at Carfi’s office. She advised Ms Jain that SBS had agreed to her working as a freelancer for the BBC World Service, which was a request Ms Jain had made to Mr Marques on 7 January 2019. At that meeting Ms Jain produced copies of her two previous medical certificates, but they were now amended with regard to her work capacity and what constituted “suitable duties”. The production of these certificates coincided with a letter from Mr Griffin advising Ms Jain that SBS would no longer pay her salary as her leave entitlements were exhausted.
Ms Jain’s Relocation to India
Ms Jain travelled to India in early April 2019 and Mr Marques advised Ms Pitt that he would continue to facilitate her applying for alternative position but thought that arranging rehabilitation services would be problematical. Comcare had not, at that stage, approved her claim for payment of incapacity payments. On 1 May 2019 Comcare affirmed its earlier decision to decline payment of compensation in the form of weekly incapacity payments for the period between 18 December 2018 to 18 February 2019.
On 17 June 2019 Ms Pitt was informed that an extension of Ms Jain’s Carfi rehabilitation program had been agreed with her. Ms Pitt deposed that on 22 July 2019 she suspended Ms Jain’s rehabilitation program after consulting with the Injury Management Advisory Service (“IMAS”) area of Comcare because Ms Jain continually refused to undertake training courses or make an effort to find appropriate alternative positions. She continued to send Ms Jain potential roles whilst she was in India but the rehabilitation program was suspended until her return to Australia.
Ms Pitt deposed that on 4 September 2019 she requested that Mr Marques draw up a new rehabilitation plan as the previous one had expired. The draft was sent to Comcare for review and their opinion was that the RTW plan should be amended to make Ms Jain more accountable to engage, especially as she was in India with no advised return date. On 18 September 2019, Ms Jain advised she was in Australia until 22 October 2019 and met with a new rehabilitation consultant on 26 September 2019, but advised she was not happy with the additional structure in the new RTW plan. She refused to sign it. On 3 October 2019, Comcare advised Ms Jain she would need to comply with the plan, despite not signing it, as it was deemed fair and reasonable.
Ms Pitt deposed that on 28 October 2019 Ms Jain emailed Comcare and her seeking changes to the rehabilitation plan. On 14 October 2019 Ms Jain had emailed a letter from Dr Pham which said that the plan could not be approved because she and Ms Jain had not been granted input and, in her opinion, the alterations might be detrimental to Ms Jain’s recovery. Following a reconsideration of its decision Comcare still disagreed, concluding that the plan was fair and reasonable.
Termination of Ms Jain’s Employment

Ms Pitt deposed that she was not involved in the decision to terminate Ms Jain’s employment.
Mandi Wicks
Ms Wicks was, at the relevant time, SBS’s Director of ALC, that is to say manager of SBS Radio. In that role she oversaw the operations of about 200 “journalists/employees” across 68 language services.
Ms Wicks deposed that SBS Radio had 68 language teams of varying size organised into 6 different groups, each of which was headed by a program manager. Typically, each language team had the same structure as the others, namely one executive producer, one or more senior producers, varying numbers of content producers and perhaps an occasional extra employee. Executive producers reported to the program manager, who reported to the network manager who reported to the Director of ALC.
Ms Wicks deposed that it was an essential requirement that all staff within a language team were fluent in the relevant language and vital that the executive producer assessing content produced by a senior producer or a producer, as the person responsible for the editorial output, speak the language in question. She said that typically staff in one language team would not readily be able to listen to or read the content produced by staff in another language team and that the program managers, the network manager and the director of the division would not readily be able to listen to or read the content produced by staff in the various language teams for which they were responsible.
The working relationship between Ms Jain and Ms Merani
Ms Wicks deposed that in August 2014 she became aware that Ms Jain had alleged that Ms Merani was bullying and harassing her and that later Ms Jain made a formal complaint. In December 2015 an internal investigation found that the majority of Ms Jain’s complaints were not substantiated.
Allegations by Mr Bharadwaj regarding the relationship between Ms Jain and Ms Merani
Ms Wicks deposed that in December 2015 one of Ms Jain’s colleagues, Mr Bharadwaj, made various allegations about Ms Merani making derogatory comments about Ms Jain. The network manager, Ms Spilsbury, investigated the complaint but ultimately found the allegations were unsubstantiated.
Dispute in the Fair Work Commission – March 2016 and subsequent investigation
Ms Wicks deposed that on 24 March 2016 the MEAA initiated a dispute in the FWC on Ms Jain’s behalf in relation to the bullying and harassment allegation she had made regarding Ms Merani. One of the outcomes was that SBS undertook to engage an external investigator to investigate Ms Jain’s complaints and it engaged Work Dynamic Australia to do this. Work Dynamic Australia’s investigation found that some of the allegations against Ms Merani were substantiated and Ms Wicks deposed that in July 2016 she issued a written warning to Ms Merani concerning breaches of the SBS Code of Conduct that the investigation found had occurred. She advised Ms Jain that appropriate action had been taken.
Attempts to resolve differences between Ms Jain and Ms Merani
Ms Wicks deposed that on 29 June 2016, in an attempt to restore the working relationship between Ms Jain and Ms Merani, Ms Jain was assigned to program manager, Mr Colla, but he was unsuccessful in enabling Ms Jain and Ms Merani to work together on an on-going basis.
The People and Culture area of SBS arranged for a mediation between Ms Jain and Ms Merani to take place in October 2016.
In March 2018, Mr Pascucci was asked to be “relationship performance and support manager” and facilitate the communication between Ms Jain and Ms Merani, thereby allowing for the rebuilding of trust and the working relationship between them. Mr Griffin advised her that the arrangement involving Mr Pascucci was effective for a period but later broke down when Ms Jain became dissatisfied with the actions being taken by Mr Pascucci.
Requests by Ms Jain to Change her Reporting Lines
Ms Wicks deposed that between June 2016 and October 2017 Ms Jain repeatedly requested that she not have to report to Ms Merani which, Ms Wicks deposed, was not possible as a long term proposition because the senior producer in each language team produced content in a language other than English and such editorial work had to be overseen by someone who understood that language, namely the executive producer of that language service.
Comcare claim - 2016
Ms Wicks was generally aware that Ms Jain had made a worker’s compensation claim, and was informed in December 2016 that it had been accepted and involved a diagnosis of adjustment disorder with mixed emotional features. In about September 2018, an agreement was reached in the AAT which overturned a Comcare decision that Ms Jain was not entitled to compensation in respect of an aggravation of an anxiety disorder in October 2015. As a result, Ms Pitt, SBS’s senior rehabilitation manager, commenced work with the rehabilitation provider on a new RTW plan for Ms Jain.
Ms Jain’s relocation to India
Ms Wicks deposed that in April 2019 Ms Jain sent her an email saying she was relocating to India to live with her parents because she was no longer receiving any pay from SBS or Comcare and could not support herself. This posed challenges to the RTW plan as Ms Jain was working with Ms Pitt on finding alternate employment in Australia, such as alternative roles within SBS which were more difficult to apply for and fill from India than from Australia.
Termination of Ms Jain’s Employment
Ms Wicks deposed that in July 2019, Mr Bell, later Director of the People and Culture department at SBS, proposed that Ms Jain’s employment be reviewed. She agreed that this was appropriate and gathered information to determine if Ms Jain’s employment should continue. Ms Wicks deposed that she arranged for Mr Bolton, a program manager who did not work in the subcontinent language group, to conduct a review of whether it was possible:
(a)for a person to work in a language program broadcasting in a language in which they were not fluent; and
(b)for a senior producer to carry out their function without reporting to the executive producer for the language team in which the senior producer worked.
Mr Bolton’s view was that fluency in the language in which a senior producer worked, and reporting to an executive producer who was also fluent in that language, were inherent requirements of the senior producer role. Ms Wicks deposed that she concluded from Mr Bolton’s report that Ms Jain would have to report to Ms Merani if she was to continue to work at SBS.
In consultation with Mr Bell and Ms Pitt, Ms Wicks then prepared a memorandum for Clare O'Neil, SBS’s Director of Corporate Affairs, setting out the relevant issues and information that had been gathered regarding Ms Jain's ongoing employment status. Ms Wicks deposed that:
Ms O'Neil had been asked by Mr Bell to act as an independent decision maker in respect of the question of whether Ms Jain was able to continue to be employed by SBS. As I understood it from my discussions with Mr Bell, Ms O'Neil had been asked to be the decision maker regarding Ms Jain's employment because she was a member of senior management at SBS who was entirely removed from any of the issues or history of events related to Ms Jain and so could bring a completely fresh and objective perspective to the relevant issues.
In her memorandum to Ms O’Neil of 27 September 2019, Ms Wicks stated:
On 23 September 2019, SBS received a further medical certificate from Ms Jain confirming the continuation of Ms Jain's medical restriction (not reporting to Ms Merani).
The memorandum also said:
As the Director of Corporate Affairs, we request that you act as an independent decision maker in respect of which course of action to take in respect of this matter. We have proposed two possible options here, but it may be that you consider a different course of action is appropriate.
Ms O’Neil subsequently advised that she believed Ms Jain to not be capable of performing the requirements of her role as senior producer in the Hindi team and that SBS should terminate her employment. Ms Wicks agreed with Ms O’Neil’s conclusions.
Ms Wicks deposed that on 9 December 2019 she sent a letter to Ms Jain advising her that her employment was terminated.
Clare O’Neil
Ms O’Neil was SBS’s Director of Corporate Affairs. She deposed that she had never met Ms Jain and had not had any knowledge of her employment history prior to September 2019, at which time she was approached to act as an independent decision maker on whether Ms Jain’s employment should be terminated. She deposed:
Mr Stig Bell, SBS Director of People and Culture, approached me in early September 2019 and asked if I would be able to act as an independent decision maker in an employment matter concerning the Audio and Language Content Division. My understanding from Mr Bell was that the Director of Audio and Language Content, Mandi Wicks, wanted a perspective on the issue from someone in senior management at SBS who was completely independent from the division in which the relevant employee worked and not previously involved in … any of the issues concerning that employee.
…
Having an independent member of senior management act as an independent decision maker is something that SBS does on occasion when making significant decisions on staffing matters.
On 27 September 2019 Ms O’Neil received from Ms Wicks a memorandum setting out relevant issues and information regarding Ms Jain, and asking her to decide whether Ms Jain’s employment should be terminated. In that memorandum Ms Wicks advised Ms O’Neil that Ms Jain had a current and long-running medical restriction as advised by her doctor, namely that she was unable to report to Ms Merani and that temporary alternative reporting lines had been neither successful nor sustainable:
… given the fundamental basis of the Hindi program, namely having a line manager who is able to supervise work on an “in language” basis and for the Senior Producer and Executive Producer to be able to collaborate in order to produce the Hindi program.
Ms Wicks’s memorandum to Ms O’Neil attached a copy of Mr Bolton’s report and set out a summary of some its principal conclusions, including the finding that it was an inherent requirement of the senior producer role that its holder report directly to the executive producer of the relevant language program. She went on to detail Ms Jain’s absences from work and steps taken by SBS to assist her to return to work and to resolve the differences between her and Ms Merani.
It was Ms O’Neil’s evidence that she twice wrote to Ms Wicks requesting further information to help her reach her decision, advising that:
… it would be good if the Review undertaken by Andrew Bolton could be expanded with some additional detail and information,
and identifying points which could be addressed in greater detail. Having received further information, on 15 November 2019 Ms O’Neil wrote to Ms Wicks advising that she agreed that an inherent requirement of the senior producer role was to report directly to the executive producer of the same language program, at least for language programs in languages other than Arabic. She said:
In particular, it is relevant to note that:
•The assessment against the duty criteria demonstrates that most critical components of the role require a reporting line to the EP; and
•the Hindi program is smaller than both the Vietnamese and Italian teams which were also considered as part of the Bolton Review.
On 27 November 2019 Ms Wicks wrote to Ms O’Neil, asking her whether she had formed a view or made a decision, as requested in the memorandum of 27 September 2019, concerning whether SBS should either:
1.[Continue] to request Ms Jain to engage with Carfi whilst she [was] on unpaid leave
2.Bring the employment relationship to an end on the basis that Ms Jain [was] unable to fulfil the inherent requirements of the role of Senior Producer, Hindi program, namely reporting to Ms Merani, Executive Producer, Hindi Program.
On 28 November 2019 Ms O’Neil sent an email to Ms Wicks expressing her view that Ms Jain’s ongoing medical restriction meant that she was unable to fulfil the inherent requirements of the role of senior producer of the Hindi program, specifically in relation to reporting to Ms Merani as the executive producer, and that her employment should be terminated. Ms O’Neil agreed in cross-examination that in concluding that Ms Jain could not perform the work she had been employed to do, namely reporting to her executive producer, she took into account the fact that the restriction was a consequence of “an underlying condition that was ongoing”. Ms O’Neil said that the medical condition was relevant to whether or not Ms Jain could perform the inherent requirements of her role.
Ms O’Neil said in cross-examination by Ms Jain that she knew from Ms Wicks’s memorandum that Ms Jain suffered from the “aggravation of an underlying anxiety condition that was ongoing”. She also said:
The facts that I was asked to consider were whether or not, due to your medical condition, you could provide – you could perform the work that you were employed to do. … They were the facts that were relevant to my decision,
and:
I took into account that there was an existing health condition in place and that reasonable adjustments had been attempted to manage that, and that those adjustments had not been successful and that it was an inherent requirement of the job for the senior producer to the report to the executive producer. Those are the facts I took into account.
APPLICANT’S Submissions
Ms Jain submitted that she had been dismissed because she could not report to Ms Merani “due to medical restriction”. In this connection she pointed to her dismissal letter which, she said, stated that the reasons for her dismissal were:
(a)her absence from work for a significant time; and
(b)her inability to report to her manager, the executive producer of the Hindi Language Team.
Ms Jain submitted that Ms O’Neil had decided she should be dismissed because her medical condition meant that reporting to Ms Merani presented a risk to her health and safety. She said:
… once the AAT Order of October 2018 made it not just medically but legally untenable for them to make me report to the same manager who bullied and harassed me, first direct me not to come to work and then terminate my employment because I could not report to that manager. … the Respondent’s solution was to dismiss the victim of bullying because she could not report to the person who bullied and harassed her due to a medical restriction.
Ms Jain continued:
As I mentioned in my opening statement, this is a remarkably simple case. I am a victim of bullying and harassment, I could not report to the manager who bullied and harassed, the respondent terminated my employment because I could not report to the manager who bullied and harassed me and none of this is in dispute. In fact, the Respondent’s entire basis for dismissing me is that I could not report to the manager who bullied and harassed me because according to the Respondent reporting to the manager who bullied and harassed me was an inherent requirement of my job. …
Section 340 of the FW Act
Ms Jain submitted that to the extent that she had been dismissed for not attending work, SBS’s conduct contravened s.340 of the FW Act on the ground that it was adverse action taken against her because she had exercised a protected workplace right. In that regard she referred to the definition of “workplace right” in s.341 of the FW Act and to it comprehending a person having a “role or responsibility” under a workplace law. Ms Jain said that the workplace law relevant to her case was the WHS Act and that the particular role or responsibility was what s.28(a) of that Act prescribed, namely:
28 Duties of workers
While at work, a worker must:
(a) take reasonable care for his or her own health and safety …
…
On the latter point Ms Jain relied on Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 (“AMWU v Visy”) where Murphy J said at 97 [129]:
… Section 25 of the OHS Act imposes a responsibility on all employees to exercise reasonable care in relation to occupational health and safety. …
The terms of s.25 of the Occupational Health and Safety Act 2004 (Vic) considered in that case were relevantly identical to the terms of s.28 of the WHS Act. Ms Jain argued that reporting to Ms Merani was a risk to her health and safety from which she was entitled under the WHS Act to protect herself from by being absent from work and that SBS had contravened s.340 of the FW Act by dismissing her because she had availed herself of that entitlement.
It was submitted that “at work” in s.28 of the WHS Act is a reference to an activity rather than to a location and that an employee is “at work” when engaged in activities at the direction or under the supervision of their employer. Ms Jain submitted that she had been at work when, at what she characterised as SBS’s direction, she had been absent from the workplace and “carrying out the rehabilitation process”.
Ms Jain also submitted that her periods of workers’ compensation leave were exercises of a different workplace right, namely a purported right under s.19 of the SRC Act to be on compensation leave and absent from work due to incapacity resulting from a compensable injury, but did not develop that argument.
Section 351 of the FW Act
In relation to SBS’s alleged contravention of s.351 of the FW Act, Ms Jain submitted that:
(a)she had been diagnosed with a recognised psychiatric illness, namely “aggravation of anxiety disorder”;
(b)her medical restriction arising out of her illness was recognised as an incapacity under s.19 of the SRC Act;
(c)Ms O’Neil knew and “factored in” the psychiatric illness diagnosis and resulting inability to report to Ms Merani and so it was because of that risk to her health and safety and her medical condition that Ms O’Neil decided that Ms Jain should be dismissed; and
(d)by dismissing her because she could not report to Ms Merani for medical reasons, SBS took adverse action against her because of her psychiatric illness.
Central to that argument was Ms Jain’s submission that her psychiatric illness and incapacity to report to Ms Merani constituted a “mental disability” under s.351 of the FW Act. Noting that the FW Act does not contain a definition of disability, Ms Jain submitted that the definition of “disability” in the Disability Discrimination Act 1992 (Cth) was relevant and referred in that regard to the following parts of s.4 of that Act:
disability, in relation to a person, means:
…
(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.
…
Further in relation to the meaning of “disability” in s.351, Ms Jain referred to Shizas v Commissioner of Police (2017) 268 IR 71 at 95 [119], Stephens v Australian Postal Corporation [2011] FMCA 448 at [87] and Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 at 562 [48] and submitted that her inability to report with safety to Ms Merani was the manifestation of her disability, involving shortness of breath, dizziness, palpitations and panic attacks when made to report to Ms Merani, and not the result of the manifestations of her disability.
Ms Jain also submitted that the SBS duty statement required her, as a senior producer, to report to an executive producer of the Hindi program, not to Ms Merani specifically, and that she had never had a medical restriction that prevented her from reporting to an executive producer who performed their duties in line with SBS’s code of conduct.
Respondent’s submissions

SBS submitted that Ms Jain had not proved that she had exercised a workplace right or had a disability.
In relation to the latter, it should be noted that Ms Jain was unrepresented and her affidavits were objectionable on various grounds as a consequence, but SBS helpfully chose not to burden the trial with a long list of objections and instead made arguments later as to why certain potentially material parts of them ought to be ignored, given lesser weight or treated as submissions. Potentially significant medical evidence in the form or medico-legal reports was included as annexures to Ms Jain’s affidavits and no evidence led from the medical authors. However, the relevant issue is not whether I am persuaded that Ms Jain suffered compromised mental health at the time of her dismissal as she asserts, but whether SBS thought that she did and dismissed her because of that.
SBS also submitted that reinstatement was not practical given that it would be futile. In that regard SBS referred to two newspaper articles in which Ms Jain had participated concerning Ms Jain’s dismissal and this proceeding which were published the day before the trial of this matter commenced.
CONSIDERATION
Background
Factual preliminaries
SBS’s written submissions disputed whether it had been proved in this proceeding that Ms Jain had suffered from the aggravation of an anxiety disorder. However, more relevantly, Ms Wicks and Ms O’Neil indicated that they had accepted that she did suffer from that condition.
The other relevant facts were largely uncontroversial and so credibility is not generally an issue.
I find that Ms O’Neil was the relevant decision maker.
When she was dismissed in December 2019, Ms Jain had not performed work for SBS for over a year and, she agreed, she was not receiving compensation payments.
Section 340 FW Act
Section 340(1)(a) of the FW Act prohibits a person from taking “adverse action”, which is defined by s.342(1) of the FW Act to include dismissal, against another because they have exercised a workplace right. “Workplace right” is defined by s.341(1)(a) of the FW Act to include having the benefit of, or a role or responsibility under, a workplace law. The first limb of Ms Jain’s case was that she had been dismissed for exercising the workplace right and responsibility under s.28 of the WHS Act to take reasonable care for her health and safety by, in her case, being absent from work because of the adverse health consequences for her of reporting to Ms Merani. She also submitted that her absences while receiving compensation payments were the exercise of a workplace right under s.19 of the SRC Act.
Statutes such as the WHS Act are workplace laws: AMWU v Visy at 86-87 [78], and s.28(a) of the WHS Act creates in persons working in a business or undertaking, a workplace right and responsibility to protect their own health and safety: Yu v ACT Education Directorate [2022] FCAFC 110 at [39]; AMWU v Visy at 95 [120], 97 [129]. Similarly to the Victorian Occupational Health and Safety Act considered in AMWU v Visy, the WHS Act imposes a responsibility on all persons working in a business or undertaking to exercise reasonable care in relation to health and safety, contravention of which attracts criminal liability and is punishable by significant penalties. Even so, the circumstances in which s.28(a) of the WHS Act will found a workplace right are not unlimited: Yu v ACT Education Directorate at [39]. For instance, the paragraph applies a reasonableness test and so conduct that does not meet that test will not amount to the exercise of a workplace right under the FW Act.
Section 28(a) also only applies in circumstances where the person working in a business or undertaking is “at work”. SBS submitted that even if s.28(a) of the WHS Act could create a workplace right, a proposition it disagreed with, the paragraph did not do so in Ms Jain’s case because it did not apply unless she was “at work” and it could not be said that she had been “at work” when she had in fact been absent from work. Ms Jain argued that an employee is “at work” when engaged in activities at the direction, or under the supervision, of their employer and that she had been so engaged when “carrying out the rehabilitation process”, even if she was absent from work.
In full, s.28 of the WHS Act states:
28 Duties of workers
While at work, a worker must:
(a) take reasonable care for his or her own health and safety, and
(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
The fact that the s.28(d) can be read as:
While at work, a worker must co-operate with any reasonable policy or procedure … relating to health or safety at the workplace …
is a strong contextual indication that in s.28 “at work” refers to an activity rather than to a location. That reading is also supported by subsection s.7 of the New South Welsh WHS Act, which provides that a police officer will be a “worker” for the purposes of that Act and:
… at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer …
Subsections (2), (2A), (2B), (2C), (2D), (2E) and (2F) of s.7 of the Commonwealth WHS Act include similar provision for other roles falling within the legislative competence of the Commonwealth Parliament.
It is also to be noted that s.29 of the WHS Act states:
29 Duties of other persons at the workplace
A person at a workplace (whether or not the person has another duty under this Part) must:
(a)take reasonable care for his or her own health and safety, and
(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c)comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
Plainly, that section prescribes responsibilities carried by all persons, including workers, and does so by reference to where those persons are located, namely “at a workplace”. The fact that the equivalent part of s.28 refers to “at work” points to the Parliament having intended the responsibilities of workers and persons generally to be engaged by different circumstances and for workers to have cumulative responsibilities under both sections.
I conclude therefore that “at work” in s.28 of the WHS Act means the period during which a worker is performing the functions of the role in which they are employed. Undertaking rehabilitation is not such an activity. In Ms Jain’s case in particular, the undertaking of rehabilitation appears to reflect rights and obligations created by the SRC Act, specifically the provisions of div.3 which is concerned with rehabilitation programs, rather than rights and obligations created by her employment relationship with SBS.
For these reasons I conclude that Ms Jain’s absences from work did not engage the operation of s.28 of the WHS Act and so did not amount to the exercise by her of a workplace right protected by the FW Act. I also find that Ms Jain’s absences when receiving compensation payments were not the exercise of a workplace right under s.19 of the SRC Act. The right provided by that section is to receive compensation payments, not to be absent from work.
However, should my conclusions on those questions be wrong, for reasons that follow in relation to the second limb of Ms Jain’s case, I conclude that, in any event, she was not dismissed because she was absent from work.
Section 351 FW Act
Section 351(1) of the FW Act prohibits an employer from taking adverse action against an employee because they possess or manifest any of a number of specified characteristics, including physical or mental disability, except where the action is taken because of the inherent requirements of the particular position in question – see s.351(2)(b). The second limb of Ms Jain’s case was that she had been dismissed because she had had a “physical or mental disability” covered by s.351 of the FW Act that prevented her from reporting to Ms Merani and so her dismissal had contravened the FW Act.
Background facts
SBS’s consideration of Ms Jain’s position and potential dismissal involved the following steps:
(a)Mr Bell suggested to Ms Wicks that a review of Ms Jain’s employment status be undertaken; and
(b)Ms Wicks and Mr Bell resolved that decisions on issues material to whether Ms Jain should be retained or dismissed be made by persons with no involvement in her case and, specifically that:
(i)Mr Bolton identify what the inherent duties of Ms Jain’s role were; and
(ii)Ms O’Neil decide:
(A)whether Ms Jain could perform those inherent duties; and
(B)whether Ms Jain should be retained or dismissed.
A version of Mr Bolton’s report was attached to Ms Wick’s memorandum to Ms O’Neil dated 27 September 2019, which was in turn annexed to Ms O’Neil’s affidavit. In it Mr Bolton identified the scope of his inquiry as:
Assess whether it is an inherent requirement of the Senior Producer role to have a reporting line into the Executive Producer for a language program. Assess against:
•the ability to perform tasks or functions which are essential to perform a job productively and to the required quality
•the ability to work effectively in a team or organisation
•the ability to work safely.
The definition of the senior producer role as found in the applicable duty statement was a point of reference and stated:
The Senior Producer is responsible for the production and delivery of distinctive and innovative multi-platform content for the relevant language program. The content will be consistent with SBS Codes of Practice, Editorial Guidelines, established editorial strategy and other relevant standards and formats.
The Senior Producer is also responsible for assisting the Executive Producer to uphold the editorial vision of the program, monitoring and subediting to ensure that multiplatform content produced by the relevant team complies with our Codes. When required, the Senior Producer may also provide support to and/or temporarily act as the Executive Producer for the relevant language program.
…
The duty statement for a “Band 4 Senior Producer” was also a point of reference and Mr Bolton recorded that in conducting his review he interviewed the program manager of the Vietnamese program and the executive producers of the Arabic, Vietnamese, Italian and Hindi programs. Mr Bolton reported:
Conclusions: It is my conclusion that it is an inherent requirement of the Senior Producer role to have a reporting line into the Executive Producer for a language program in ALC. If a senior producer reports outside of the EP line, it would result in detriment to the overall quality of editorial content, team harmony in relation to workflows and accountability, or in other cases, would simply not be possible.
Some other considerations include:
•Firstly, as the programs are “in-language” the Senior Producer would be required to report to someone who had a solid understanding of the language in question which limits the potential for alternative reporting lines outside of the program.
•For smaller programs, this means the Senior Producer would not have any alternative reporting line into someone who speaks the same language and would necessitate the creation of a new role and FTE which is not a reasonable adjustment.
•The risk of editorial inconsistency would be increased.
•Editorial integrity could be compromised as a result.
A more detailed version of Mr Bolton’s review report, apparently produced at Ms O’Neil’s request, was annexed to Ms Wicks’s affidavit. It went into some detail concerning the particular tasks associated with the role of senior producer and perhaps this is the document described in Ms O’Neil’s letter to Ms Wicks of 15 November 2019 as “the longer report” and in her affidavit as the “expanded Bolton Review”. In this more detailed document Mr Bolton identified that although a number of the tasks described in the duty statement did not require a direct reporting line to the executive producer, the more significant ones did, and in respect of which he made the following observations:

Task

Requires reporting to EP?

Reasoning

1.     Undertake a range of journalism and content production tasks to provide multiplatform content …

YES

·      The Executive Producer is the Editorial Lead for each program and is responsible for the overall planning, production and editorial of the program in alignment with the audience target profiles and ALC content strategy.

·      As the programs are “in-language” the Senior Producer would be required to be involved in the planning, preparation, assessment, research, writing, producing, editing, translating and scripting for content deliverables which are also “in language”

·      In order to ensure that the editorial content aligns with the Executive Producer's overarching responsibility to the program, the Senior Producer is required to report to someone who had a solid understanding of the language in question and is able to influence and direct the editorial approach and content on a daily basis.

·      This limits the potential for alternative reporting lines outside of the program. This type of work makes up the bulk of the Senior Producer's tasks and is a large part of their daily workflows.

·      For smaller programs, this means the Senior Producer could not have an alternative reporting line as there are insufficient resources to enable them to report into someone who speaks the same language and who has the required level of editorial and managerial experience. This would necessitate the creation of a new role and FTE salary.

2.     Assist the Executive Producer with sub-editing, monitoring and ensuring the program's compliance with editorial standards.

YES

•    The risk of editorial inconsistency would be increased if there were multiple editorial sign off points within a program.

•    There is potentially one exception to the inherent requirement for a Senior Producer to report to the Executive Producer. This exception is for the largest language group, Arabic, where a reasonable adjustment could be made because of size of the team.

     ...

•    An EP of a daily program needs a “right hand person” to deputize for them and support the rolling out of content as well as communicating editorial standards and SBS values. As per the duties assigned to the Senior Producers, this role is designed to serve that purpose. The reporting line is an important element of this because it ensures consistency of editorial approach and reduces the risk of compromising editorial standards.

3. Co-ordinate work of others such as casuals & contributors as required.

YES

•    The Executive Producer is responsible for the overall budget and resourcing of the program.

•    It would not be feasible for a Senior Producer to be coordinating the workforce planning of the program without directive from the Executive Producer and without compromising the Executive Producers ability to maintain control over the budget and resourcing envelope of the program.

…

…

…

6.     As required, prepare, write/source/edit and upload multiplatform content text and pictures online. and maintain relevant language website (including updating and removing out dated content when appropriate) in accordance with the relevant online standards.

YES

•    Similarly to the previous entries regarding duty statement the online content would be subject to the same requirements to ensure alignment with the Executive Producer's responsibility to delivers to the content strategy

…

…

…

8. Respond to online, email and telephone feedback from listeners and refer upwards for action as necessary.

YES

•    Complaints must be upwardly referred and managed by the Executive Producer as a core responsibility of their role. Speed and consistency of response are crucial to maintaining audience trust.

…

…

…

10. Undertake professional development and training as required: initiate and participate in the professional development and training of team members as required.

YES

•     Similarly to the response provided to duty statement task 1 the Senior Producer acts as a “right hand person” for the Executive Producer in leading the vision for the program and supporting the Executive Producer to achieve that vision. This includes the professional development of team members.

•      Consistency of approach is therefore required as the Executive Producer is ultimately responsible for the talent development within their team, which directly impacts on editorial standards.

Mr Bolton provided confirmation of Ms Wick’s opinion that among the essential requirements of the role of senior producer was being fluent in the language of the programs on which the senior producer worked, and that it was also vital that the executive producer to whom that senior producer reported was fluent in that language too.
As recorded earlier, during Ms Jain’s employment SBS accepted the advice in Dr Walker’s second report that Ms Jain suffered from an aggravation of an anxiety condition. It is not to the point that the condition has not been proved in this case as the relevant issue is why Ms O’Neil concluded that Ms Jain should be dismissed, not whether any belief she held as to Ms Jain’s mental health was well-founded. The material that was provided to Ms O’Neil indicated the existence of the aggravated anxiety condition and it was not suggested that she did not accept the material’s truthfulness. It must be accepted that Ms O’Neil believed Ms Jain to have been suffering from the condition identified by Dr Walker.
Operation of s.351
The first question relevant to the engagement of s.351 of the FW Act in this case is whether the condition which at the time SBS accepted Ms Jain suffered was a disability of the sort that engaged rights under the section. That question focuses attention on the meaning of “disability” in s.351 and whether, as Ms Jain submitted, the Disability Discrimination Act can provide any guidance. In a similar case, Hodkinson v Commonwealth (2011) 248 FLR 409, I said that:
Although s 351 is headed “Discrimination” this heading is not to be taken as part of the Act: s 13(3) of the Acts Interpretation Act 1901 (Cth). The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s 351(1), such as a person’s disability, that a contravention is proved. The criteria found in s 351(1) rely in no way on the Disability Discrimination Act.
Further, s 351 does not employ the word “discrimination” other than as a term by which to identify other Acts which provide exceptions to the operation of s 351(1). The absence of that word from the list of prohibited reasons for adverse action found in s 351(1) means that there is no grammatical link between that subsection and ss 5 and 6 of the Disability Discrimination Act. There is, therefore, no term in s 351(1) whose proper construction may be understood by reference to what is contained in ss 5 and 6 of the Disability Discrimination Act.
Additionally, the fact that s 351(1)’s operation is limited by reference to exceptions derived from anti-discrimination legislation provides no basis to conclude that other features of those Acts should also influence the operation of s 351. Section 351(2) is dependent upon s 351(1) and is concerned with limiting s 351(1)’s scope, not with expanding it. Consequently, the fact that certain conduct mentioned in the Disability Discrimination Act is expressly excluded from the reach of s 351(1) does not, in the circumstances, suggest that conduct mentioned in the Disability Discrimination Act which is not so excluded is to be included in the proscriptions in s 351(1) other than to the extent that the subsection’s express terms already prohibit it. That is to say, s 351(2)’s exclusion of certain conduct from the operation of s 351(1) by reference to, amongst others, the Disability Discrimination Act, is insufficient to incorporate into s 351(1) conduct referred to in those Acts which is not excepted by s 351(2).
For these reasons, conduct which contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the FWA. (at 442-443 [140]-[143])
See also Railpro Services v Flavel (2015) 242 FCR 424 at 455-456 [113], [114] and Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 at [61], [62].

That being so, as in Hodkinson’s case attention must turn to the proper interpretation of “disability” where it appears in s.351(1). In Shizas v Commissioner of Police, Katzmann J said:
In the absence of a statutory definition, one must look to the ordinary meaning of the word. In its ordinary meaning “disability” denotes both the condition and its manifestations. “Disability” is relevantly defined in the Shorter Oxford English Dictionary as:
1.Lack of ability (to do something); inability, incapacity. Now rare.
…
3.An instance of lacking ability; now spec. a physical or mental condition (usu. permanent) that limits a person’s movements, activities, or senses, esp. the ability to work …
Similarly, the Macquarie Dictionary on-line relevantly defines “disability” as:
1. Lack of competent power, strength, or physical or mental ability, incapacity.
2. a condition which restricts a person’s mental or sensory processes, or their mobility … (at 95 [119], [120])
As to whether for the purposes of s.351 a disability would be the condition simpliciter or include its manifestations, her Honour continued:
… even if a distinction could sensibly be drawn between a disability “per se” and the limitations and vulnerabilities that make up that disability, in my opinion, as a matter of statutory construction, the word “disability” in s 351 must include both. … (at 96 [125]
Earlier, in Railpro Services v Flavel, Perry J had said:
… the term “disability” cannot be limited to the “underlying diagnosed medical or physiological or psychological condition”. Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object. For example, it may permit adverse action because of its manifestation in an unsightly skin condition. That such manifestations or symptoms are embraced within the term is consistent with the existence of the defence, for example, in s 351(2)(b) of the FW Act excluding adverse action taken because of the inherent requirements of the job. (at 459 [124])
In Hodkinson, a distinction was drawn between the manifestations of a condition and “their practical consequences, such as absence from work” (at 444 [146]). That distinction can be important for the question whether an alleged adverse action was taken for a reason that is proscribed or for one that is not: Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190, affirmed by the Full Court of the Federal Court in Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150. In the context of disability and s.351 of the FW Act, in Western Union Business Solutions v Robinson at 582-584 [147]-[153], a differently constituted Full Court cited the reasoning in Endeavour Coal to find that a decision-maker had decided to dismiss an employee because she was concerned about his capacity for work and that the underlying causes of that incapacity played no role in her decision. The fact that a decision-maker knows of an employee’s disabling condition does not ipso facto mean that adverse action arising out of the consequences of that condition was taken because of the condition. As Perram J said in Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150:
… there is a factual distinction between factoring something into one’s consideration of a matter and making a decision about the matter itself. (at 173 [91])
The burden of some of Ms Jain’s cross-examination of SBS’s witnesses was that Ms O’Neil should have been provided with more information about her employment history, in particular details of Ms Merani’s behaviour towards her, on the basis that it was unreasonable to expect her to report to Ms Merani in the future and so it should not have been an inherent requirement of her role. However, Ms O’Neil’s task was to determine the questions that had been posed to her, not to rewrite them. The issue is why Ms O’Neil answered the questions asked of her in the way she did, not whether she should have answered a different question.
Because of physical or mental disability
In her letter of 15 November 2019 Ms O’Neil advised Ms Wicks that in her view an inherent requirement of the senior producer role was to report directly to the executive producer of the same language program, at least for language programs other than those in Arabic. In her email to Ms Wicks of 28 November 2019 Ms O’Neil said:
I refer to my consideration and agreement with the Bolton Review, as advised in my letter of 15 November 2019, and note the issues raised in your memorandum of 27 September.
Taking the Bolton Review into account, it is my view that the ongoing medical restriction of Ms Jain (confirmed as continuing as recently as 23 September 2019) means that she is unable to fulfil the inherent requirements of the role of Senior Producer of the Hindi Program, specifically in relation to reporting to Ms Merani and the elements of the job that require this to occur.
In my view, Ms Jain is therefore unable to perform the job she is employed to do, and the employment relationship should be concluded (as per the second option outlined in your memo of 27 September).
The email makes it plain that Ms O’Neil believed that Ms Jain should be dismissed because she was “unable to perform” her job by reason of her “ongoing medical restriction”. Ms Jain’s “medical restriction” was identified by Dr Walker in his second report as the aggravation of an anxiety condition and referred to in the following terms in the 27 September 2019 letter of instructions Ms Wicks had sent Ms O’Neil:
Ms Jain has a current and long-running medical restriction as advised by her treating health professional Dr Therese Pham. Ms Jain's restriction is that she is unable to report to Ms Merani. …
…
•On 16 October 2018, SBS received information via a medical report that changed the nature of Ms Jain's diagnosis from an adjustment disorder to the aggravation of an underlying anxiety condition that was ongoing. In light of this updated health information, SBS advised Ms Jain not to attend work following her return from annual leave on 1 November 2018 as SBS could not make the adjustments necessary to provide a safe work environment at this time.
…
On 23 September 2019, SBS received a further medical certificate from Ms Jain confirming the continuation of Ms Jain's medical restriction (not reporting to Ms Merani).
By almost any standard, that restriction would be considered a form of mental disability. It might also be noted that Ms O’Neil did not mention Ms Jain’s absences from work and so it can be inferred that the decision that she should be dismissed was not taken because of them.
The question arises whether Ms Jain’s inability to report to Ms Merani, by reason of her medical condition, and thus to do “the job she [was] employed to do”, was a manifestation or part of the mental condition identified by Dr Walker. In Western Union v Robinson, O’Callaghan and Thawley JJ said:
We agree with Kerr J that is not every consequence of a disability which is to be regarded as a “manifestation” of the disability such that the consequence is to be regarded as comprising a part of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes. … the fact that the collection of attributes which comprise the disability result in incapacity for work would not necessarily compel the conclusion that the incapacity for work was part of the disability as opposed to being a consequence of having the disability.
…
The present legislative context does not require the conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability. (at 580-581 [137], [138])
Having regard to their Honours’ statements, I am persuaded that Ms Jain’s inability to report to Ms Merani was a manifestation of her anxiety condition in the sense that Dr Walker’s second report implied that the condition would be aggravated by interactions with Ms Merani. The anxiety condition and the inability to report are different sides of the same coin. I therefore find that her inability to report to Ms Merani was a manifestation of Ms Jain’s anxiety condition and so of her disability.
Because of the inherent requirements of the position
Although the conclusion that Ms O’Neil advised Ms Jain’s dismissal because she could not report to Ms Merani would in other circumstances justify a finding that s.351 was contravened because the tests in s.351(1) are satisfied, I further find that the significance for Ms O’Neil of Ms Jain’s inability to report to Ms Merani lay not in the inability itself but in the fact that it meant Ms Jain could not perform an inherent requirement of her role, which reporting to Ms Merani was.
After a reasonably lengthy and detailed process initiated by Ms Wicks’s request of 27 September 2019, Ms O’Neil stated in plain words that, in her view, Ms Jain’s inability to report to Ms Merani amounted to an inability to fulfil the inherent requirements of the role of senior producer of the Hindi program and so to perform the job she was employed to do. Ms Jain’s cross-examination of Ms O’Neil did not persuade me that Ms O’Neil’s email was anything other than an accurate statement of her views. I accept that it was. Consequently, s.351(2)(b) is engaged. As O’Callaghan and Thawley JJ said in Western Union v Robinson:
… s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2). Where s 351(2)(b) is raised as an issue, the Court’s task involves determining whether the adverse action was “taken because of the inherent requirements of the particular position concerned”. If adverse action was taken because of the inherent requirements of the particular position, or for reasons which included such a reason (s 360), the adverse action is not prohibited by s 351(1), even though it would have been so prohibited absent the existence of such a reason. (at 575 [118])
…
CONCLUSION
The allegations that SBS contravened the FW Act have not been made out.
Consequently, the application will be dismissed.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.
Associate:
Dated:       6 October 2022
Attachment A
Chronology
15 April 2013   Ms Jain commenced employment with SBS as a senior producer in the Hindi Language Team. She was required to report to the executive producer of the Hindi Language Team, Ms Merani.
27 July 2014   Ms Jain made a complaint about Ms Merani’s behaviour towards her.
15 November 2015               Ms Jain made a formal allegation that Ms Merani had bullied and harassed her.
3 December 2015                Ms Jain claimed that a fellow employee, Mr Bharadwaj was a witness to disparaging and offensive remarks made by Ms Merani. An internal investigation in relation to Ms Jain’s complaint was then undertaken.
10 December 2015              Ms Jain was notified that her complaint was found not to be substantiated and that SBS would investigate Mr Bharadwaj’s allegation separately.
8 March 2016   Ms Jain was notified that SBS had determined that Mr Bharadwaj’s allegation was unsubstantiated.
24 March 2016   Ms De Almeida of MEAA initiated a dispute in the Fair Work Commission on Ms Jain’s behalf, relating to the investigation’s findings.
4 April 2016   SBS undertook to arrange for an external investigation into Ms Jain’s complaint of November 2015 and Mr Bharadwaj’s allegations.
April 2016 - May 2016        Workdynamic Australia conducted an investigation into Ms Jain’s complaint.
June 2016 - October 2017    Ms Jain requested on a number of occasions that her reporting line be changed so that she would not have to report to Ms Merani.
16 June 2016   SBS provided Ms Jain’s representative with a copy of Workdynamic Australia’s report. It found that Ms Merani had engaged in a course of conduct that constituted bullying and harassment.
29 June 2016   To avoid Ms Jain needing to report directly to Ms Merani, she was assigned to report to Mr Colla. Mr Colla was unsuccessful in enabling Ms Jain and Ms Merani to work together on an ongoing basis.
28 July 2016   SBS advised Ms Jain that it did not consider a permanent reporting line change to be a viable solution to the difficulties she was having in working with Ms Merani.
13 October 2016                  A mediation between Ms Jain and Ms Merani was held in an attempt to repair the working relationship between them. It did not reach an agreed outcome.
October 2016  Ms Jain made a Comcare claim alleging psychological injury due to bullying and harassment
November 2016                    Ms Veksler, Ms Merani’s direct manager was offered as a ‘relationship, performance and support manager’ to assist Ms Jain return to work. Ms Jain was on annual leave.
16 December 2016               Comcare accepted Ms Jain’s claim.
19 December 2016               Ms Jain’s GP, Dr Pham, provided a medical certificate stating that Ms Jain was suffering from a “chronic adjustment disorder (with mixed anxiety and depression)” and that she should not work with Ms Merani, Ms Veksler or Mr Colla.
15 January 2017                  Dr Pham provided a letter expanding on the comments made in the medical certificate dated 19 December 2016.
27 May 2017   Psychiatrist Dr Lewin reported that Ms Jain was not suffering from a mental health disorder and was mentally well.
31 May 2017   Comcare arranged for Ms Jain to see psychiatrist Dr Walker.
7 July 2017 Dr Pham provided a medical certificate stating that Ms Jain was unfit for work due to persistent dizziness.
8 August 2017  Dr Walker provided a report agreeing with Dr Lewin’s opinion that the Ms Jain was mentally well and did not have a psychiatric condition.
7 September 2017                Comcare decided that the Commonwealth was no longer liable for Ms Jain’s medical expenses or incapacity payments.
7 September 2017                Ms Jain requested that Comcare reconsider its determination.
4 October 2017                    A mediation between Ms Jain and Ms Merani was attempted but did not reach an agreed outcome. A return to work plan was agreed where Ms Jain would report to Ms Merani under the supervision of Mr Pascucci.
20 October 2017                  Comcare affirmed its 7 September 2017 determination.
8 August 2018   The MEAA submitted an allegation to Mr Griffin on Ms Jain’s behalf that Ms Merani had retrospectively altered a work schedule for the Hindi Program to substantiate a complaint Ms Merani had made about Ms Jain’s performance.
6 September 2018                Dr Walker undertook a desktop review of Ms Jain’s case and concluded that she was suffering from ‘aggravation of anxiety disorder’ with her interactions with Ms Merani being a stressor contributing to the aggravation.
October 2018-August 2020 Ms Jain worked with the rehabilitation provider Carfi to find an alternative position within SBS or with another employer. With the assistance of Carfi Ms Jain applied, unsuccessfully, for 73 alternative roles.
2 October 2018                    SBS concluded that the allegation that Ms Merani had altered a work schedule retrospectively had not been substantiated. Ms Jain requested a copy of this investigation report. SBS denied that request.
18 October 2018                  The AAT set aside Comcare’s 7 September 2017 decision, stating that the Commonwealth was liable to pay medical expenses incurred by Ms Jain in respect of her “aggravation of anxiety disorder”, but that she was not incapacitated from work and it was not liable to make incapacity payments.
26 October 2018                  SBS sent Ms Jain an email telling her that a new rehabilitation plan would have to be implemented in consultation with rehabilitation provider Carfi NSW. She was also directed not to come to work but told she would continue to receive her normal remuneration.
10 January 2019                  SBS informed Ms Jain that she was going to be placed on unpaid leave and in February 2019 she stopped receiving remuneration.
February 2019  Ms Jain lodged a Comcare claim for disability payments.
28 February 2019                Ms Jain placed on unpaid personal leave from SBS and she did not subsequently return to work.
14 March 2019   Comcare rejected Ms Jain’s February 2019 Comcare claim for incapacity payments for the period 18 December 2018 to February 2019.
April 2019Ms Jain relocated to India.
9 April 2019   Ms Jain asked Comcare to reconsider its 14 March 2019 decision on incapacity payments.
1 May 2019 Comcare affirmed its 14 March 2019 decision.
24 May 2019   Ms Jain applied to the AAT for a review of Comcare’s 1 May 2019 decision.
July 2019Mr Bell proposed to Ms Wicks that Ms Jain’s employment be reviewed.
4 September 2019                Ms Pitt asked Carfi to prepare a new rehabilitation plan as the previous one had expired. Carfi prepared a draft and sent it to Comcare.
18 September 2019              Ms Jain advised Ms Pitt that she had returned to Australia.
20 September 2019              Comcare made a determination altering the rehabilitation plan.
26 September 2019              Ms Jain met with Mr Karimyar of Carfi but did not agree to the new rehabilitation plan.
27 September 2019              Ms Wicks appointed Ms O’Neil decision-maker.
10 October 2019                  Ms Jain requested Comcare reconsider its 20 September 2019 determination.
28 November 2019               Ms O’Neil advised Ms Wicks of her opinion that Ms Jain should be dismissed.
9 December 2019                 SBS terminated Ms Jain’s employment.
10 December 2019               Comcare affirmed its 20 September 2019 alteration of Ms Jain’s rehabilitation plan.
17 March 2020   The AAT made a consent determination that:
(a)Comcare’s 1 May 2019 decision be set aside; and instead,
(b)Comcare pay incapacity payment to Ms Jain for the period 18 December 2018 to 18 February 2019.

File number:	SYG 909 of 2020
Judgment of:	JUDGE CAMERON
Date of judgment:	6 October 2022
Catchwords:	INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – workplace right – whether a worker’s duty under the Work Health and Safety Act 2011 (NSW) to take reasonable care for his or her own health and safety while at work was a role or responsibility under a workplace law – meaning of “at work” INDUSTRIAL LAW – discrimination because of disability – meaning of “disability” – distinction may be drawn between adverse action taken because of a disability and its manifestations, and adverse action taken because of the consequences of a disability and its manifestations – inherent requirements of the position WORDS AND PHRASES – at work, disability
Legislation:	Disability Discrimination Act 1992 (Cth) s 4 Fair Work Act 2009 (Cth) ss 340, 341, 342, 351 Occupational Health and Safety Act 2004 (Vic) s 25 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19 Special Broadcasting Service Act 1991 (Cth) s 5 Work Health and Safety Act 2011 (Cth) ss 7, 28, 29 Work Health and Safety Act 2011 (NSW) ss 7, 28, 29
Cases cited:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190 Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Hodkinson v Commonwealth (2011) 248 FLR 409 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 Railpro Services v Flavel (2015) 242 FCR 424 Shizas v Commissioner of Police (2017) 268 IR 71 Stephens v Australian Postal Corporation [2011] FMCA 448 Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 Yu v ACT Education Directorate [2022] FCAFC 110
Division:	Fair Work Division
Number of paragraphs:	138
Date of last submissions:	19 August 2021
Dates of hearing:	22-24 June 2021
Place:	Sydney
The Applicant:	The Applicant appeared in person by video-link
Counsel for the Respondent:	Ms P. Bindon
Solicitors for the Respondent:	Mills Oakley

Table of Corrections
8 November 2022	In paragraph 5, “September 2017” has been replaced with “October 2018”.
8 November 2022	In paragraph 25, “10 December 2010” has been corrected to “10 December 2019”.

SYG 909 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PALLAVI JAIN Applicant
AND:	SPECIAL BROADCASTING SERVICE CORPORATION ABN 91 314 398 574 Respondent

order made by:	JUDGE CAMERON
DATE OF ORDER:	6 October 2022

Task	Requires reporting to EP?	Reasoning
1. Undertake a range of journalism and content production tasks to provide multiplatform content …	YES	· The Executive Producer is the Editorial Lead for each program and is responsible for the overall planning, production and editorial of the program in alignment with the audience target profiles and ALC content strategy. · As the programs are “in-language” the Senior Producer would be required to be involved in the planning, preparation, assessment, research, writing, producing, editing, translating and scripting for content deliverables which are also “in language” · In order to ensure that the editorial content aligns with the Executive Producer's overarching responsibility to the program, the Senior Producer is required to report to someone who had a solid understanding of the language in question and is able to influence and direct the editorial approach and content on a daily basis. · This limits the potential for alternative reporting lines outside of the program. This type of work makes up the bulk of the Senior Producer's tasks and is a large part of their daily workflows. · For smaller programs, this means the Senior Producer could not have an alternative reporting line as there are insufficient resources to enable them to report into someone who speaks the same language and who has the required level of editorial and managerial experience. This would necessitate the creation of a new role and FTE salary.
2. Assist the Executive Producer with sub-editing, monitoring and ensuring the program's compliance with editorial standards.	YES	• The risk of editorial inconsistency would be increased if there were multiple editorial sign off points within a program. • There is potentially one exception to the inherent requirement for a Senior Producer to report to the Executive Producer. This exception is for the largest language group, Arabic, where a reasonable adjustment could be made because of size of the team. ... • An EP of a daily program needs a “right hand person” to deputize for them and support the rolling out of content as well as communicating editorial standards and SBS values. As per the duties assigned to the Senior Producers, this role is designed to serve that purpose. The reporting line is an important element of this because it ensures consistency of editorial approach and reduces the risk of compromising editorial standards.
3. Co-ordinate work of others such as casuals & contributors as required.	YES	• The Executive Producer is responsible for the overall budget and resourcing of the program. • It would not be feasible for a Senior Producer to be coordinating the workforce planning of the program without directive from the Executive Producer and without compromising the Executive Producers ability to maintain control over the budget and resourcing envelope of the program.
…	…	…
6. As required, prepare, write/source/edit and upload multiplatform content text and pictures online. and maintain relevant language website (including updating and removing out dated content when appropriate) in accordance with the relevant online standards.	YES	• Similarly to the previous entries regarding duty statement the online content would be subject to the same requirements to ensure alignment with the Executive Producer's responsibility to delivers to the content strategy
…	…	…
8. Respond to online, email and telephone feedback from listeners and refer upwards for action as necessary.	YES	• Complaints must be upwardly referred and managed by the Executive Producer as a core responsibility of their role. Speed and consistency of response are crucial to maintaining audience trust.
…	…	…
10. Undertake professional development and training as required: initiate and participate in the professional development and training of team members as required.	YES	• Similarly to the response provided to duty statement task 1 the Senior Producer acts as a “right hand person” for the Executive Producer in leading the vision for the program and supporting the Executive Producer to achieve that vision. This includes the professional development of team members. • Consistency of approach is therefore required as the Executive Producer is ultimately responsible for the talent development within their team, which directly impacts on editorial standards.