KEIGHTLEY v ACT AMBULANCE SERVICE (Discrimination) - [2019] ACAT 61

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KEIGHTLEY v ACT AMBULANCE SERVICE (Discrimination) [2019] ACAT 61

DT 24/2018

Catchwords: DISCRIMINATION – disability – PTSD – emergency services worker – whether the respondent directly or indirectly discriminated against the applicant in a proposed transfer and in delaying her to bring a service dog to work – no discrimination
Legislation cited:     Discrimination Act 1991 ss 5AA, 7, 8, 10, 30
Emergencies Act 2004 ss 3, 28
Human Rights Commission Act 2005 s 53A
Work Health and Safety Act 2011 s 19
Subordinate
Legislation cited:      Animals in the Workplace Guideline s 4
Discrimination Regulations 2016 clause 2
Cases cited: Cooley and Australian National University [2007] ACTDT 2
Couper v ACT Housing [2004] ACTDT 4
Kovac v Australian Croatian Club Ltd [2014] ACAT 41
Prezzi v Discrimination Commissioner [1996] ACTAAT 132
Tribunal:      Senior Member M Brennan
Date of Orders: 28 June 2019

Date of Reasons for Decision: 28 June 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 24/2018

BETWEEN:
KIRSTEN KEIGHTLEY
Applicant
AND:
ACT AMBULANCE SERVICE
Respondent
TRIBUNAL: Senior Member M Brennan

DATE: 28 June 2019

ORDER
The Tribunal orders that:

1. The application is dismissed.

………………………………..
Senior Member M Brennan

REASONS FOR DECISION

1. In this case the applicant claims that the respondent has unlawfully discriminated against her in her employment as a paramedic.
2. The ACT Human Rights Commission referred the matter to this Tribunal under section 53A of the Human Rights Commission Act 2005 (HRC Act) on 1 November 2018.

The complaint

3. The applicant filed a ‘Summary of Complaint of Direct and Indirect Discrimination’ (complaint) dated 10 December 2018. The complaint provided a brief summary of the applicant’s work with the ACT Ambulance Service (ACTAS) and her employer’s proposal to move her from a role she had occupied since January 2013. The complaint also detailed the applicant’s interaction with the respondent on having her service dog, Prue, at work with her.
4. The complaint seeks that ACAT orders:
Prue is to continue working with me;
Mr Wren to cease harassment, bullying and discrimination against me;
Mr Wren not to interfere with the management of my case and leave it to my medical team, case manager and rehabilitation provider;
The organisation penalised financially for its breach of the Discrimination Act. The penalty needs to be sufficient enough to act as a deterrent.
My legal costs incurred during this matter will be reimbursed by the organisation, including future costs should the matter proceed to Tribunal Hearing;
General damages incurred with regard to psychological pain and suffering be paid to me…
JACS refer my allegation of fraudulent activity by Mr Wren to Act Policing, if it has not already done so.

Background

5. The applicant began working as a paramedic with the respondent in 1994.
6. In 2012 she was diagnosed with post-traumatic stress disorder (PTSD) arising out of her employment. When the applicant returned to work with the respondent in January 2013, she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACAT 61
Decision Date: 28 June 2019

CaseChat Overview and Summary

The applicant, Ms Keightley, brought an action against the respondent, the ACT Ambulance Service, before the Australian Human Rights Commission. Ms Keightley alleged that the respondent discriminated against her on the grounds of her disability, which was post-traumatic stress disorder (PTSD), in two instances. Firstly, the applicant claimed that the respondent discriminated against her in a proposed transfer to a new position. Secondly, she alleged that the respondent discriminated against her in delaying her bringing a service dog to work. The respondent denied the allegations of discrimination.

The Tribunal was required to determine whether the respondent had directly or indirectly discriminated against the applicant on the basis of her disability in the two instances claimed. The Tribunal considered the relevant legislation, case law, and the evidence presented by both parties. The Tribunal noted that Ms Keightley had a disability, and that the respondent was aware of this disability. However, the Tribunal found that the respondent did not discriminate against the applicant in either instance. The Tribunal found that the proposed transfer was not discriminatory, and that the delay in bringing a service dog to work was due to operational considerations rather than discrimination.

As a result of its findings, the Tribunal dismissed the applicant’s application. The Tribunal found that the respondent did not directly or indirectly discriminate against the applicant on the basis of her disability. The Tribunal did not make any orders in favour of the applicant. The application was dismissed, and the respondent was not required to take any further action in relation to the applicant’s disability.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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