KEIGHTLEY v ACT AMBULANCE SERVICE (Discrimination)
[2019] ACAT 61
•28 June 2019
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 started on a trial in the respondent’s communication centre (ComCen) as an ambulance dispatcher.
7. The applicant took her dog “Prue” to work on 20 and 21 August 2017. On being advised that she was unable to bring Prue again, the applicant learnt that her dog needed to pass the public access test in order to be considered a service dog within the terms of the Discrimination Act 1991 (the Act).
8. The applicant was absent from work from 20 September to 20 October 2017 after taking what she described as an abusive and aggressive telephone call. When she returned to duties in ComCen she reduced her hours of work to 50% of a full load based on her psychologist’s advice that her fatigue and anxiety levels were not resolving.
9. In early 2018 the applicant was involved in a workplace initial needs assessment (INA). A report dated 27 February 2018 included details of: the applicant’s GP’s assessment of her condition; the applicant’s self-assessment; her results of the Depression and Anxiety Stress Scale (DASS-21); her medication; and consultation undertaken with her workplace.
10. On 27 April 2018 the applicant received a letter from Howard Wren, the Chief Officer of ACTAS advising his decision to move her from ComCen to the non-emergency patient transport service (NEPT). Mr Wren noted that this transfer would be for an initial period of six months and invited the applicant to provide any additional information for him to consider.
11. On 11 May 2018, the applicant, Mr Wren, the ComCen manager and a representative of the Transport Workers Union met to discuss the applicant’s proposed move from the ComCen. The applicant advised that she did not want to move to the NEPT and secondly, wanted to bring Prue to work. There is conflicting evidence as to Mr Wren and the ComCen manager’s response to the applicant having her dog at work. However, Mr Wren emailed the applicant on 23 May 2018 advising that she could not bring her support dog to work until a number of processes were worked through. He also asked the applicant to provide any relevant information regarding the proposed transfer that she wished him to consider by 6 June 2018.
12. On 31 May 2018 Prue passed the public access test.
13. There is conflicting evidence on how many occasions that Mr Wren sought evidence from the applicant of Prue passing the test. It is undisputed that Mr Wren requested this evidence on 17 July 2018 and that the applicant provided proof of Prue’s certification on the same day.
14. On 11 June 2018 Ms Carmel O’Sullivan, the applicant’s treating psychologist, wrote to the respondent detailing her concerns with the proposal to move the applicant to the NEPT.
15. On 25 July 2018 Mr Wren emailed the ComCen work group asking if anyone had a medical issue with a dog being present at the facility.
16. On 27 July 2018 Mr Wren advised that a member of the workgroup had advised they had a significant allergy to dog fur and dander.
17. On 2 August 2018 Mr Wren wrote to the applicant’s former lawyers and advised that he had reviewed his 27 April 2018 letter and determined that the applicant’s placement in ComCen could continue and would be reviewed in March 2019. Mr Wren noted that the applicant’s nominal classification of an intensive care paramedic received a higher salary than the classification of the role in ComCen. He added that given the Safety Rehabilitation and Compensation Act 1988 required formal redeployment to a suitable position at level, commensurate with the applicant’s substantive base salary, redeployment options would continue to be explored. Mr Wren also advised on receiving advice of Prue’s certification on 17 August 2018 that consultation with staff to identify any issues of concern had commenced.
18. On 13 August 2018 the applicant lodged a claim with the Human Rights Commission.
19. On 30 August 2018 the applicant attended a meeting with her caseworker and a representative of the Justice and Community Safety Directorate (JACS) to discuss her roster in ComCen going forward.
20. On 7 September 2018 the applicant returned to work in ComCen with Prue after being advised that her shift had been moved forward one day so she was not working with the employee with the dog allergy.
The hearing
21. The case was heard on 16 and 17 April 2019.
The applicant’s evidence
22. The applicant’s statement of 18 March 2019 was tendered. She described, “having a massive panic attack and just felt terrible” when she received Mr Wren’s 27 April letter. The applicant said the NEPT was the least suitable place for her and claimed that in ComCen she felt:
safe… as I’m in a closed, locked-up room with people I know really well who are aware of my diagnosis and are supportive of me. They keep an eye on me for any symptoms of anxiety… and will nudge me to go out for a walk if they see I’m getting a big [sic] anxious.
23. The applicant said there was no consultation with her prior to 27 April 2018 and as far as she was aware there was no consultation with her medical providers either. She confirmed that the transfer did not eventuate and that from 7 September 2018 she has continued working at ComCen with Prue.
24. In cross-examination, the applicant explained that her primary role as a dispatcher involves her controlling Canberra’s ambulance fleet and prioritising the fleet’s attendances with a coordinator and a clinician. She agreed that after taking a call at ComCen in September 2017 from an abusive and aggressive caller her PTSD symptoms were triggered. This resulted in her having a month away from work and on her return, she reduced her hours to 50% of a full time load. The applicant also stated that she had had a more significant response to overhearing a call in September 2016 where she sobbed uncontrollably, suffered increased panic attacks and reduced her working hours to 75% of a full time load.
25. The applicant conceded that there had been deterioration in her PTSD symptoms from when she had started working in ComCen until April 2018.
26. The applicant also led evidence by her treating psychologist, Ms O’Sullivan and tendered a letter Ms O’Sullivan had sent to the applicant’s case manager on 11 June 2018. In her oral evidence, Ms O’Sullivan said that she had treated the applicant for five or six years. She opined that ComCen was the most appropriate area for the applicant to work as the applicant had reported to her that she feels supported and valued in that work group. In her 11 June 2018 letter, Ms O’Sullivan also stated that given the applicant’s PTSD, she is “able to function best when in a safe and therefore known environment. Being on the road and connected with unknown people will exacerbate her symptoms.”
27. In extensive cross-examination, Ms O’Sullivan continued to maintain that the applicant should remain in ComCen given the applicant felt valued and supported there, notwithstanding the risks Ms O’Sullivan acknowledged arose in such an environment and in circumstances where the applicant had suffered some deterioration of her condition.
The respondent’s evidence
28. The respondent first called Rebecca Lundy, an Operations Manager of ACTAS. Ms Lundy’s statement of 29 March 2019 was tendered. Her statement included her summary of speaking to the applicant when she brought Prue to work on 21 August 2017. Ms Lundy said that she and the applicant had agreed that the applicant would provide a letter from her psychologist and that she would not bring Prue to work until “the framework and supports are in place, including checking with the workgroup.”
29. Ms Lundy added that she did not discuss time frames with the applicant as she was unsure how long this process would take and was aware that her directorate was still developing guidelines for animals in the workplace. Attached to Ms Lundy’s statement is an email she sent to the applicant’s case manager on 21 August 2017 advising of Prue’s attendance at the ComCen that day. Ms Lundy requested contact be made with the applicant’s rehabilitation provider so they could work with the applicant’s service dog provider and the applicant’s treating psychologist, as needed.
30. In cross-examination, Ms Lundy opined that the Chief Officer of ACTAS needed to have an awareness that a staff member was seeking to bring a service animal to work but that it was the initial responsibility of the line manager to “carry out the initial accountabilities and responsibilities to help support facilitate these things.”
31. The respondent then called Mr Wren and his statement of 3 April 2019 was tendered. The statement includes his acknowledgement that ACTAS staff are exposed to significant risks to health and safety and that in ComCen these risks are often to an employee’s mental health and wellbeing. Mr Wren also asserted that an error in ComCen can lead to a delay in an ambulance response which may result in a member of the public suffering serious complications or death.
32. Mr Wren stated that he understood that there had been an apparent deterioration in the applicant’s condition, a reduction in her working hours and that she had self-reported an inability to cope and suicidal ideation. He added that he considered a move from ComCen into another area needed to be explored, primarily due to the perceived risks to the applicant as dispatcher but also because of the potential risk to the public. Mr Wren opined that NEPT was a lower risk role and that the applicant had the necessary skills for this and so would not require re-training.
33. Mr Wren advised that when he received Ms O’Sullivan’s 11 June 2018 letter, he still had concerns about the applicant’s welfare, however, relied upon her treating psychologist’s opinion in deciding that he would not move the applicant to NEPT.
34. Under cross-examination, Mr Wren said that he became aware that the applicant had bought her service dog to work in August 2017 when Ms Lundy had advised him of this. He also reported Ms Lundy had said that she had told the applicant that the dog could not attend the office until it was trained and ACTAS had undertaken a process of consultation with other staff members. Mr Wren advised that from when he first became aware of the applicant’s wish to bring a service dog to work and when it was approved, there was a change in the staff who had responsibility for actioning such issues.
35. When asked if he understood that the first officer with this responsibility was taking any action, Mr Wren replied that notice of the dog’s completion of training was probably being awaited and then a consultative process would start with other staff. Mr Wren agreed that it was not until mid to late 2018 that this consultative process started. The witness later agreed that in retrospect, ACTAS probably could have “got ahead a little bit” with facilitating Prue’s access to the office prior to this time.
36. Mr Wren agreed that on 25 July 2018 he sent an all-staff email about a service dog attending ACTAS’ premises and that ultimately a solution was found by the applicant changing her shift block so as not to attend when another employee with allergies was rostered.
37. Mr Wren was also asked about his letter dated 27 April 2018. This letter included that he had made the decision that the applicant’s suitable duties in ComCen were no longer appropriate for her following receipt of an INA. The applicant’s lawyer asked Mr Wren whether he had read the INA and Mr Wren admitted that he had not and relied upon the staff who had drafted the letter.
38. Mr Wren also admitted that he had not considered whether the NEPT would be a suitable working environment for someone with a service dog or whether the applicant still wished to bring Prue to work with her. Mr Wren acknowledged that a service dog could not attend that sort of environment and therefore the transfer would prevent the applicant bringing Prue to work.
39. The third witness called by the respondent was Daniel Borrett, the senior injury management coordinator for People and Workplace Safety in JACS. Mr Borrett’s statement dated 3 April 2019 was tendered.
40. Mr Borrett’s statement included that since August 2017 he had been responsible for monitoring the applicant’s rehabilitation and ongoing management. He stated that the INA was obtained after the applicant had reduced her hours of work in October 2017. Mr Borrett said that he understood the INA detailed ongoing risks to the applicant remaining in her current role. He drafted the 28 April 2018 letter for Mr Wren.
41. Mr Borrett advised that he briefed Mr Wren on the report’s recommendations in a telephone conference. Whilst he could not remember the precise terms of their discussion, he thought he had “summarised the note from [the applicant’s treating GP] which talked about the significant risks to the applicant remaining in ComCen.”
42. Mr Borrett acknowledged that the INA referred to the introduction of the applicant’s service dog at work and that the potential for alternative duties be discussed and negotiated with the applicant and her treating practitioners to ascertain the possibility for her to continue working within a less stressful role. Mr Borrett advised that it was not his responsibility to have coordinated those discussions but rather the rehabilitation provider.
43. Mr Borrett was then taken to the following passage in the INA:
Overall, Ms Keightley and her treating physician, Dr Morvai, have advised that the most appropriate working role for Ms Keightley's maintenance of her current psychological functioning is to maintain her current role within the ComCen, however it is recognised that this is a stressful environment with many risks and potential triggers for deterioration within Ms Keightley's psychological functioning.
44. He was asked whether he had informed Mr Wren of this passage and said that he did. He was also asked what was the basis of his recommendation in the 27 April 2018 letter drafted for Mr Wren that:
Following receipt of initial needs assessment, including details of a case conference with your treating physician Dr Morvai, I have made the decision that it's no longer appropriate to support suitable duties in the ComCen.
45. Mr Borrett answered that the quoted comment took into account the respondent’s obligations under the Work Health and Safety Act 2011, highlighted the risk in potential triggers for the applicant and the public. When asked for the basis of the public being at risk, he referred to a call the applicant had taken from a member of the public which the applicant “did not handle so well and caused an escalation of a member of the public which then posed a risk to a member of the public…”.
46. When asked if there were any issues with the applicant’s performance, Mr Borrett answered that he was unaware of any criticism of the applicant’s work as a dispatcher.
47. Mr Borrett also conceded under questioning that another of the INA’s recommendations that a review be undertaken with all treating providers to discuss the appropriateness of her continuing her current role with ComCen and for her to undergo an independent assessment, did not happen. Instead Mr Wren’s letter of 28 April 2018 was sent to the applicant.
48. Mr Borrett admitted that a “miscommunication between the teams” meant that no one advised the applicant of the process which needed to occur before she could bring Prue to work. He further admitted that the proposed transfer role was unsuitable for a service dog.
49. Mr Borrett said that he had a conversation with Mr Wren after receipt of Ms O’Sullivan’s opinion on where the applicant should work and stated that Mr Wren told him that based on the psychologist’s opinion and because the applicant had expressed a strong view against the proposed move, she should remain in ComCen.
The applicant’s submissions
50. The applicant’s lawyer advised the Tribunal in his oral submissions that the case concerned:
…the decision to redeploy the applicant to the patient transport unit and whether that was an act of discrimination; and the delay in facilitating access for Prue to the workplace and whether that was an act of discrimination.
51. The applicant’s lawyer submitted that from the date his client received Mr Wren’s 28 April 2018 letter until the meeting with Mr Borrett on or about 31 August 2018 the applicant suffered harm.
52. It was also submitted by the applicant’s lawyer that his client suffered harm due to the delay in Prue joining the applicant at work from the time she was registered on 31 May 2018 until on or about 7 September 2018. Further, that from when Ms Lundy had the meeting with the applicant on 21 August 2017, it was reasonable for the applicant to expect that the workplace would be taking action to respond to her request to bring Prue to work.
53. A further issue put by the applicant’s lawyer at the end of his submissions was that his client was indirectly discriminated against by the proposed transfer, as she was disadvantaged by being unable to have Prue with her at the NEPT.
The respondent’s submissions
54. The respondent’s submissions were comprehensively detailed in its oral and written submissions. The respondent conceded that the applicant’s PTSD was a disability and therefore a protected attribute. The respondent also acknowledged that from 31 May 2018 Prue was an assistance animal within the Act’s terms.
55. In relation to the first ground put by the applicant’s lawyer, regarding the transfer to NEPT, the respondent’s counsel conceded that Mr Wren’s 28 April 2018 letter, on plain reading, appears to be a decision to move the applicant from ComCen as opposed to a proposal, even if this was the intention from the paragraphs which follow communication of the decision.
56. However, the respondent submitted that this was not unfavourable to the applicant, for the purposes of section 8 of the Act as in considering whether treatment or proposed treatment is unfavourable the context must be considered which was that the applicant had suffered from an injury. The respondent’s counsel noted Ms O’Sullivan’s evidence that working in ComCen would cause the applicant’s PTSD’s symptoms to be exacerbated due to her exposure to stressful or confrontational behaviour and that the evidence showed that whilst working in ComCen she did deteriorate, as seen by her reduced hours of work.
57. In relation to the second issue the respondent argued that any delay in the process was not due to the respondent’s conduct.
58. As to the third argument put by the applicant, the respondent’s counsel argued that as at 28 April 2018 the applicant could not have had Prue with her as the dog was not an assistance animal and so was not part of the protected attribute.
Issues for determination
59. The issues for determination by the Tribunal are whether it should find that the respondent discriminated against the applicant in the proposal to transfer the applicant to the NEPT and due to its alleged delay in permitting the applicant to bring Prue to work. The issue of indirect discrimination arising from the transfer due to Prue being unable to join the applicant in the role is also at issue.
Governing legislation
60. Section 8 of the Act details the meaning of discrimination. It provides:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) A person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3)A person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
61. Section 7(1)(e) of the Act lists “disability” as a protected attribute. The definition of “disability” in s 5AA(1)(g) is “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”
62. Further, in section 5AA(2)(d)(iii) it is clear that disability includes reliance on an assistance animal. An “assistance animal means an assistance animal trained to assist a person with disability to alleviate the effect of the disability, that satisfies any requirements prescribed by regulation.”
63. In the specific context of employment, section 10(2) of the Act provides that it is unlawful for an employer to discriminate against an employee:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by subjecting the employee to any other detriment.
Application of governing legislation
Redeployment of the applicant to the NEPT
64. As detailed, the respondent conceded that in having PTSD, the applicant has a disability, which is a protected attributed under Act. It was also acknowledged that from the date of her accreditation, Prue was a service animal within the Act’s terms, thereby the applicant’s disability also comes within the terms of section 5AA(2)(d)(iii) of the Act from 31 May 2018.
65. During the hearing there was some time spent examining whether Mr Wren’s letter of 28 April 2018 constituted a decision or a proposal to move the applicant to the NEPT. The letter is ambiguous. Its second paragraph is:
Following receipt of an Initial Needs Assessment including details of a case conference with your treating physician Dr Morvai I have made the decision that it is no longer appropriate to support suitable duties in the ComCen.
Given the terms of this paragraph, it is not surprising perhaps that the applicant considered that a decision had been made.
66. However, the second page of the letter also includes:
I am therefore proposing that you undertake alternative duties with the non-emergency patient transport service. This will be for an initial period of six months commencing on 21 May 2018, with a review at this time to consider the transferrable skills analysis and job seeking undertaken. Please provide any additional information you wish for me to consider by 7 May 2018.
This section describes the transfer being proposed only and giving the applicant an opportunity to respond.
67. In any event, section 8(2) of the Act extends to a proposal to treat another unfavourably, so whether Mr Wren’s letter is categorised as a decision or a proposal, it still appears to come within the terms of the section.
68. For there to be discrimination, the Act requires that the treatment is unfavourable. In Prezzi and Discrimination Commissioner [1996] ACTAAT 132 (Prezzi) the then Discrimination Tribunal reasoned at paragraph 22 that in considering the Act:
… All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.
69. The applicant gave evidence for why she considered the move to NEPT was unfavourable to her, which included: “it would be quite detrimental to me and I don’t think I could operate even after the first or second patient because hidden suffering is one thing that I can’t cope with anymore.”
70. In a tendered letter from Ms O’Sullivan to the applicant’s case manager dated 11 June 2018, Ms O’Sullivan opined that the NEPT was inappropriate for the applicant for reasons including that she would be working with different staff in an unknown environment and that this would exacerbate the applicant’s symptoms. In contrast, in the ComCen, Ms O’Sullivan reported that the applicant’s colleagues are aware of her diagnosis and provide support, which leads the applicant to trust them and feel safe.
71. The respondent rejected the categorisation of the proposal to move the applicant to the NEPT as unfavourable. It referred the Tribunal to sections in the INA which opined that ComCen was not the appropriate workplace for the applicant and noted further, the self-reported evidence from the applicant and Ms O’Sullivan that the applicant was deteriorating in being exposed to events which caused trauma and exacerbation of her symptoms.
72. As noted by the former President of the ACT Discrimination Tribunal in Couper v ACT Housing [2004] ACTDT 4:
Mere evidence of an offer of accommodation with features that were alleged to be not suited to a prospective occupant's situation would not justify a conclusion that the offer was made on terms and conditions that were unfavourable to the applicant. The position might be different if there was evidence of the availability of accommodation suited to the complainant's condition and a refusal to allocate it to her in accordance with her priority on the waiting list…
73. Further, in Prezzi former President Curtis reasoned:
If, for example, only 2 courses of action were open, each of which might produce a result unfavourable to the complainant, and one course is chosen because of the impairment suffered, does that necessarily mean that there has been discriminatory treatment even if, at the time the action was taken, it appeared to the person taking the action that it was in the best interests of the complainant, as being likely to produce a better outcome? This would penalise a person, acting in good faith in the interests of the impaired person, if it turned out that the action produced an unfavourable result.
74. In considering whether the respondent, as the applicant’s employer, unlawfully discriminated against her at work, it should be considered whether she was subjected to “any other detriment” within the terms of section 10(2)(d) of the Act. In Cooley and Australian National University [2007] ACTDT 2, the applicant claimed that he was treated unfavourably by being subjected to a detriment by the university. Former Deputy President Peedom noted that “whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either complainant or respondent.”
75. There is conflicting evidence before the Tribunal as to whether the proposed move was unfavourable to the applicant. While her strong preference for remaining in ComCen is clear, comments within the INA, including those attributed to Dr Morvai, that the applicant’s ongoing employment within ComCen and ESA has “risks” for increasing her anxiety and exposing her to “triggering events” provide a contrary view. Given the conflicting evidence, on balance, the Tribunal does not consider the applicant was treated unfavourably and/or subjected to a detriment by the proposed transfer.
76. Even if it was found that the respondent treated the applicant unfavourably, the Tribunal must also be satisfied that this was because of her disability. Presidential Member Spender sets out the test for causation in the case of Kovac v Australian Croatian Club Limited [2014] ACAT 41 as:
Whether the applicant’s [protected attribute] is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment… so in determining whether the respondent [in that case] has treated the applicant unfavourably… the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial.
77. In the 28 April 2018 letter, Mr Wren advised that suitable duties in ComCen were no longer appropriate because “the risks associated to you with continuing to work long-term in ComCen [are] not only to you, but your colleagues and the community.”
78. In addressing this first issue, the respondent submitted that under the Work Health and Safety Act 2011 it was required to consider its duty of care to the applicant whilst she was at work. Section 19 of this Act requires a person conducting a business or undertaking to ensure, as far as it is reasonably practicable, the health and safety of workers engaged and not to put a worker at risk.
79. While the INA detailed the applicant’s strong wish to remain with ComCen, supported by her GP, in passages already cited it also raised the risks to her of remaining in such an environment. The Tribunal considers that the evidence supports this was an issue considered by the respondent in the transfer proposed.
80. Further, Mr Wren’s letter noted the need to consider risks to colleagues and the community of the applicant remaining in ComCen. The INA attributed comments to the manager of ComCen that the applicant “is a highly valued employee however there are concerns regarding her reported increased tearfulness and panic due to unavoidable triggers within her current role.”
81. It is evident that in such a crisis environment, the applicant’s colleagues and the wider community need each ComCen member to be able to perform their critical functions at all times. The Emergencies Act 2004’s objects detailed in section 3, include to:
(a) to protect and preserve life… and
(b) to provide for effective emergency management that –
(i) has regard to the need to prepare for, prevent, respond to and recover from emergencies; and
(ii) takes an all-hazards approach to emergency management.
82. In his role Mr Wren has responsibility for “the general management and control of the ambulance service” (section 28(3)). The Tribunal is satisfied that this overriding responsibility to the wider community to ensure that ComCen was running to its optimum level was also a consideration in the 29 April 2018 letter.
83. Additionally, the Tribunal also notes section 30 of the Act which provides that “This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of – (a) A territory law; …’’. Clearly, this defence to a potential claim of discrimination could extend to provisions in legislation such as Work Health and Safety Act 2011 and Emergencies Act 2004 identified above.
84. On balance, when considering all the reasons for why the proposal was made, the Tribunal finds there were additional reasons beyond the applicant’s disability and section 30 leaves no doubt that the respondent has obligations to comply with other ACT legislation, such as the two Acts detailed above.
85. The applicant secondly argued that the delay in facilitating access for Prue to the workplace was an act of direct discrimination. This delay clearly would have been difficult for the applicant from her testimony and from the totality of the medical evidence.
86. Once the applicant provided evidence of the dog’s accreditation on 17 July 2018, there is no doubt that the respondent could have acted more promptly in undertaking the steps detailed in section 4 of the Animals in the Workplace Guideline which was attached to Mr Wren’s statement. Mr Wren and Mr Borrett opined during their respective cross-examinations that different JACs Directorate employees were responsible to have progressed the workplace’s response to a service dog being at work. While the process was arguably poor, particularly given the prompt and proactive action taken by Ms Lundy in August 2017, the Tribunal does not find that this equates to unfavourable treatment of the applicant due to a protected attribute. In short, the delay of approximately seven weeks, was not so significant such as to give rise to such a claim.
87. Further, the Tribunal does not consider the failure of the respondent taking action, prior to being notified of Prue’s accreditation, equates to discrimination within the terms of the Act. Clearly, it was possible that the dog may not have passed the accreditation requirements.
88. Finally, the applicant argued that she was indirectly discriminated against by the proposed transfer as she was disadvantaged by being unable to have Prue with her at the NEPT. Both Mr Wren and Mr Borrett conceded that the applicant would not have been able to have her service dog in the proposed new role. However, as at 28 April 2018 Prue was not an assistance animal within the terms of the Act due to not being approved in accordance with clause 2 of the Discrimination Regulations 2016 at that time. Further, the applicant did not provide any evidence that after bringing Prue to work for two days in August 2017, she had been proactive in raising her wish to bring the dog to work again before receiving Mr Wren’s 28 April letter.
89. It follows that having regard to the requirements of the Act in this case, the Tribunal dismisses the application.
………………………………..
Senior Member M Brennan
HEARING DETAILS
FILE NUMBER:
DT 24/2018
PARTIES, APPLICANT:
Kirsten Keightley
PARTIES, RESPONDENT:
ACT Ambulance Service
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr N Oram
SOLICITORS FOR APPLICANT
Gabbedy Milson Lee
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member M Brennan
DATES OF HEARING:
16 April 2019
17 April 2019
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