Lavery v Commissioner of Fire Brigades - [2003] NSWADT 93

No judgment structure available for this case.

CITATION: Lavery -v- Commissioner of Fire Brigades [2003] NSWADT 93

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Terence Lavery
RESPONDENT
Commissioner of Fire Brigades

FILE NUMBER: 011023

HEARING DATES: 8/10/2001 - 10/10/2001, 11/02/2002 - 15/11/2002, 22/04/2002, 20/05/2002, 06/08/2002

SUBMISSIONS CLOSED: 08/06/2002

DATE OF DECISION:
05/06/2003

BEFORE: Rees N - Judicial Member; Silva A - Member; Nemeth de Bikal L - Member

APPLICATION: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes Act 1900
Disability Discrimination Act 1992 (Cth)
Fire Brigades Act 1989
Industrial Relations Act 1996
Liquor Act 1982
Occupational Health and Safety Act 1983
Occupational Health and Safety Act 2000
Public Health Act 1991

CASES CITED: Clinch v Commissioner of Police (1984) EOC 92-115
Burrows v NSW Commissioner of Police (1994) EOC 92-654 David Jones (Australia) Pty Ltd v P (unreported, Supreme Court of NSW (Abadee J), 29 August 1997)
State Transit Authority v Sloey [1999] NSWSC 47
French v Sydney Turf Club [1999] NSWCA 195
Cargill Australia Limited v Higginson [2002] NSWADTAP 20 French v Sydney Turf Club Ltd (No 2) [2002] NSWADT 98 Perlidis v Brambles Security Services Ltd [2003] NSWADT 11
X v Commonwealth (1999) 74 ALJR 176
Commonwealth of Australia v Williams [2002] FCAFC 435
Coleman v Commissioner of Police [2001] NSWADT 34
Maxwell v Commissioner of Corrective Services [2001] NSWADTAP 21
Peck v Commissioner of Corrective Services [2002] NSWADT 122
Wollongong City Council v Bonella [2002] NSWADTAP 26
Commonwealth of Australia v Williams [2002] FCAFC 435
Bonella v Wollongong City Council [2001] NSWADT 194
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
David Jones (Australia) Pty Ltd v "P" (unreported, Supreme Court of NSW, 29 August 1997)
X v Commonwealth (2000) 74 ALJR 176
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Holdaway v Qantas Airways Limited (1992) EOC 92-430
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Alexander v Home Office [1988] 2 All ER 118

REPRESENTATION: APPLICANT
B Vukadinovic, barrister
RESPONDENT
G Farkas, barrister

ORDERS: 1. Within 14 days of the date of this order the parties are to file and serve documents which contain calculations concerning the additional wages and other remuneration which the applicant would have received had he been employed by the respondent as a Firefighter Level 4 from 9 September 1999 to 8 September 2000 and as a Qualified Firefighter from 9 September 2000 to date.2. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of general damages.3. From the date of this order the respondent is to provide the applicant with the rate of pay and other remuneration of a Qualified Firefighter until the applicant ceases employment with the respondent or is promoted to a higher rank.; 4. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs.; 5. Within 14 days of receiving the applicant's written submissions in relation to costs the respondent is to file and serve written submissions in response.; 6. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar.7. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.

1 In this case the applicant, Mr Terence Lavery, has alleged that his employer, the Commissioner of NSW Fire Brigades (the respondent), unlawfully discriminated against him on the ground of his disability by denying him opportunities for training and promotion.

2 The respondent has employed the applicant since 1968. It is not in dispute that the applicant has had a disability since 1971 when he lost his right eye in a motor vehicle collision that was not in any way related to his work as a firefighter. From that time onwards the respondent has maintained that because the applicant has sight in one eye only, he is unfit to undertake fire fighting duties and to participate in the training offered to other firefighters of his rank. Since 1971 the applicant, though employed as a firefighter, has performed administrative work in the Sydney Watch Room.

3 The case was heard by the Tribunal in Sydney over 11 hearing days between 8 October 2001 and 6 August 2002. Both parties were represented by counsel: the applicant by Ms Vukadinovic and the respondent by Mr Farkas.

4 There were few disputes between the parties about what we have determined to be the material facts concerning the issue of whether the respondent unlawfully discriminated against the applicant on the ground of his disability. There was substantial disagreement, however, about the legal consequences of those facts. There was also substantial disagreement between the parties concerning the facts that are relevant if the complaint is substantiated and it becomes necessary to determine what remedies should be awarded to the applicant.

5 The circumstances of this case are surrounded by a thicket of legal regulation. The case sits at the junction of four separate statutory schemes. Those schemes are, first, the Anti-Discrimination Act 1977 (NSW), which renders it unlawful for an employer to discriminate against an employee on the ground of disability in certain circumstances, which include the provision of opportunities for training and promotion; secondly, occupational health and safety legislation (at the time of the events in this case the Occupational Health and Safety Act 1983 (NSW) was still in force), which renders it unlawful for an employer to place the health and safety of its employees at risk; thirdly, the Industrial Relations Act 1996 (NSW), which provides for the making of awards which govern working conditions; and, fourthly, the Fire Brigades Act 1989 (NSW) which vests the respondent with various functions and obligations which include appointing people to be members of fire brigades and exercising the functions of an employer in relation to those people. In addition, the respondent has obligations at common law to ensure that the safety of his employees is not jeopardised by requiring them to work with other employees who cannot safely perform their work. It is not an easy task for an employer or an employee to determine which of these laws is to be paramount in the event that there is actual or apparent conflict between them. Not surprisingly, the parties have taken different views about which particular statutory provisions should prevail.

6 The case raises complex issues, which have been litigated on numerous occasions in the past, concerning the interaction between disability discrimination and occupational health and safety legislation (see e.g. Clinch v Commissioner of Police (1984) EOC 92-115, Burrows v NSW Commissioner of Police (1994) EOC 92-654, David Jones (Australia) Pty Ltd v P (unreported, Supreme Court of NSW (Abadee J), 29 August 1997), State Transit Authority v Sloey [1999] NSWSC 47, French v Sydney Turf Club [1999] NSWCA 195, Cargill Australia Limited v Higginson [2002] NSWADTAP 20, French v Sydney Turf Club Ltd (No 2) [2002] NSWADT 98, Perlidis v Brambles Security Services Ltd [2003] NSWADT 11).

7 The case also raises the important issue of the extent to which an employer of people who comprise a uniformed and disciplined force can lawfully require all members of that force to be physically capable of performing ‘front line’ operational duties, and to maintain a level of physical well-being which the employer determines is necessary to perform those duties. This question has already been considered by tribunals and courts in this State, and federally, in the context of the army (see X v Commonwealth (1999) 74 ALJR 176 and Commonwealth of Australia v Williams [2002] FCAFC 435), the police force (see Coleman v Commissioner of Police [2001] NSWADT 34), and corrective services (see Maxwell v Commissioner of Corrective Services [2001] NSWADTAP 21 and Peck v Commissioner of Corrective Services [2002] NSWADT 122). Whilst each case must be determined on its own facts, and in accordance with the particular legislation which governs those facts, the cases as a whole demonstrate that, in the absence of clear statutory authority permitting an employer to insist that all members of its force be physically capable of performing operational duties, the practice does not sit comfortably with disability discrimination legislation which, unlike race and sex discrimination laws, effectively stipulates that in some circumstances a person’s disability is a relevant factor for an employer to consider, and to make reasonable attempts to accommodate, when making decisions which affect that person.

8 A related issue raised by this case, and others concerned with employment in a uniformed and disciplined force, is the extent to which an employer should provide short and long term special or light duties positions for temporarily and permanently disabled members of the force, including those people who become disabled whilst still probationers in training as well as well those employees who have attained base grade competencies.

9 These issues are of significant public importance. There are no simple solutions for they involve safety, industrial, economic and human rights considerations which may sometimes be in conflict. Whilst the Tribunal’s decision in this case determines the particular dispute between the applicant and the respondent, it is not capable of resolving the broader issues which we have identified. In the absence of clear legislative guidance these issues are likely to be litigated again and again at considerable expense and personal cost to those involved.

History of the proceedings

10 This history is drawn from the report to the Tribunal by the President of the Anti-Discrimination Board (ADB), which was tendered in evidence, and from the ‘pleadings’ prepared by the parties. On 9 March 1999 the applicant lodged a complaint of disability discrimination under the Anti-Discrimination Act 1977 (the Act) against his employer, the respondent, with the President of the ADB. The complaint, which was prepared for the applicant by his solicitor, alleged that “[d]uring his 31 years of service, our client has not received any promotion by the Board of Fire Commissioners of NSW despite his constant requests, and evidenced merit” and that “[o]ur client has been informed by the NSWFB, that he is not, and will not be eligible for promotion, solely because of the loss of his right eye”. The applicant’s solicitor went on to state in this complaint:

Despite the use of only one eye, our client is eligible to obtain a Class 3 drivers licence. Our client understands that he would have to reach a driving proficiency of that standard to drive fire appliances. Our client has never been given the opportunity to drive fire appliances, despite his ability to do so.

Since 1971, our client has suffered substantial financial and personal loss, through the actions of the NSW Fire Brigade in overlooking him for a promotion (at minimum, to the position of Station Officer).

The current salary for the position of Station Officer is $53,196.00 per year. Our client currently earns $38,190.00 per year. Exponentially, our client has calculated that he has suffered at minimum, a loss of earnings of about $260,000.

11 The applicant’s complaint was subsequently referred by the President of the ADB to the respondent for his consideration. In the course of a response to the President, by letter dated 27 March 2000, Ms Susan Couling, the Manager Recruitment and EEO for the NSW Fire Brigades, made the following comments:

The standards which the NSW Fire Brigades applies to its permanent firefighters with respect to medical and physical fitness are based on world best practice and those set by the Australian Fire Authorities Council. They are also directed by legislation, the most relevant being the Occupational Health and Safety Act, aside from the obligations placed on employers by the Industrial Relations Act and on the N.S.W. Fire Brigades by the Fire Brigades’ Act.

Apart from Mr Lavery being unable to drive a fire appliance (which is an inherent part of firefighting duties) a firefighter, in the course of his/her work, is exposed inter alia, to dust, heat, smoke and chemicals. These hazards can affect sight and visibility. It is essential, therefore, that a person has satisfactory sight in both eyes to minimise any risk to themselves, co-workers or the community. Should a firefighter be unfortunate enough to have his/her sight either permanently or temporarily impaired during an operational incident, a firefighter with sight in only one eye would face a much higher risk of becoming either temporarily or permanently blind as a consequence.

Further, Mr Lavery would not be able to hold a “Class 3” driver’s licence (a licence which has now been replaced by a Commercial Vehicle licence) which is needed to drive a fire appliance…

The New South [Wales] Fire Brigades has in place review systems for employees not able to perform their substantive duties, and who may be temporarily or permanently re-deployed. These reviews are conducted on a regular basis…

Mr Lavery would have been reviewed through this process.

The Brigades’ Medical Officer, Dr Maryanne Dawson, has advised me that Mr Lavery was last medically examined on 13th December 1999. A copy of his fitness for work assessment is appended…

It has been noted on this assessment that Mr Lavery is permanently re-deployed, and that he “considers improving skills in communication field”…

It is a fact that Mr Lavery has not received promotion over the last thirty-one years. The Department holds no record either on Mr Lavery’s personal file or medical file of his having made “constant requests” for promotion, or indeed any request at all…

The N.S.W. Fire Brigades’ denies “there is no characteristic inherent in the job of firefighting that requires the sight of two eyes” and that “with the use of proper safety equipment and training” Mr Lavery would be “capable of performing all inherent tasks required of him as a firefighter”. Training and safety equipment is used to minimise the risk of injury in an inherently dangerous occupation. They cannot compensate for the inability of a firefighter to perform the inherent tasks of firefighting.

The Fire Brigades’ Act 1989 requires the Commissioner to provide the protection of persons and property from fire and from hazardous material incidents and the Commissioner must be satisfied all firefighters have the physical capacity to ensure the statutory functions can be discharged.

Second, the Occupational Health and Safety Act 1983 declares the Commissioner ensure the health, safety and welfare of all Brigades members and this means protecting them from recruits and firefighters who do not have the physical capacity to serve as a firefighter.

Third, the Commissioner must protect his employees from exposure to injury and the like whilst serving as an employee.

For these reasons, any firefighter who is medically or physically unfit for operational firefighting is removed from that role.

12 As the President of the ADB did not resolve the complaint, it was referred to the Tribunal, pursuant to s 94(1) of the Act, for an inquiry. The parties subsequently filed ‘pleadings’, and later ‘amended pleadings’, in response to directions by the Tribunal. The following material facts have been admitted by the respondent: (1) the respondent is the employer of the applicant, and the applicant and the respondent have been in the relationship of employer and employee at all material times; (2) the applicant lost the sight in his right eye in 1971 in a non-work related accident and this injury is a “disability” within the meaning of s 4 of the Act.

13 In the Amended Points of Claim the applicant alleged that the respondent discriminated against him on the ground of disability in breach of three provisions in the Act, being s 49D(2)(a), s 49D(2)(b) and s 49D(2)(d). Section 49D(2)(a) deals with disability discrimination by an employer against an employee in relation to the terms and conditions of employment. Section 49D(2)(b) deals with disability discrimination by an employer against an employee in relation to opportunities for promotion, training or other benefits associated with employment. Section 49D(2)(d) deals with disability discrimination by an employer against an employee where the employee subjects the employee to any detriment not encompassed within the other paragraphs in the sub-section. The applicant also alleged that the defence or exception to liability in s 49D(4)(a) of the Act – the ‘inherent requirements’ exception – could not be relied upon by the respondent in this case because it is not a defence which is applicable to the substantive provisions in the Act which the respondent is alleged to have contravened.

14 The applicant claimed damages and other remedies in the nature of injunctive relief. The applicant sought “compensation of $40,000 for each individual act of discrimination described above”. Whilst it is not readily apparent from reading the Amended Points of Claim as a whole precisely how many ‘individual acts’ of discrimination the applicant alleged the respondent had committed, it was made clear in closing submissions that the applicant claimed a total of $280,000 for seven alleged contraventions of the Act. The applicant also sought orders that he be deemed as having been promoted to the rank of Leading Firefighter since 1971, that his superannuation entitlements reflect this deemed promotion, that he be promoted to “the next vacancy of Station Commander reasonably located within the Sydney metropolitan area”, and that he be credited “such amounts of long service leave and holiday pay, as he would have been entitled to had it not been for the respondent’s discriminatory conduct”. The applicant also sought an order for costs “on an indemnity basis”. In closing submissions, however, the applicant sought costs on a party/party basis.

15 In the Amended Points of Defence the respondent denied that he had discriminated against the applicant on the ground of disability as alleged, or at all. Further, the respondent claimed that if the applicant had been discriminated against, the respondent’s actions were lawful as a result of s 49D(4) and s 54(1) of the Act.

16 Thus, from the ‘pleadings’, the issues in dispute between the parties concerning the question of liability were, first, whether any conduct of the respondent towards the applicant fell within s 49D(2)(a),(b) or (d) of the Act, secondly, whether any conduct which fell within any of those three substantive provisions constituted ‘discrimination on the ground of disability’ as that concept is defined in the Act and, thirdly, if the conduct of the respondent would have otherwise constituted unlawful discrimination on the ground of disability, was the respondent able to rely upon exculpatory provisions in the Act, being either the ‘inherent requirements’ exception in s 49D(4) of the Act, or the general exception to liability found in s 54(1)(a) which provides that conduct does not amount to unlawful discrimination if it was necessary for the respondent to act as he did in relation to the applicant in order to comply with the provisions of another statute.

The evidence

17 As we have noted, despite the large amount of evidence lead by both parties there were relatively few disputes between them about the material facts concerning the central issue of whether the respondent had contravened the Act. Much of the evidence lead by both parties, and by the respondent in particular, was relevant only to the findings of fact which the Tribunal needed to make in order to determine what damages and other relief should be awarded to the applicant in the event that the complaint was found to be substantiated.

18 The applicant lead evidence from six witnesses: the applicant himself, Mr Christopher Read (the Secretary of the NSW Fire Brigades Union), Mr Joe Bowen (an employee of the Roads and Traffic Authority), Ms Neryla Jolly (a Senior Lecturer in the School of Applied Vision Sciences at the University of Sydney), Mr Dennis Shepherd (a Station Commander with the NSW Fire Brigade) and Mr Graham Webb (an Inspector with the NSW Fire Brigade).

19 Three statements by the applicant, Mr Lavery, were admitted into evidence (exhibits C, D and F). Mr Lavery was cross-examined by Mr Farkas. We consider the following parts of Mr Lavery’s evidence, which were not disputed by the respondent, to be significant: (a) he commenced employment with the NSW Fire Brigade in February 1968 and he is still employed by the Fire Brigade; (b) on 8 May 1971 he lost his right eye in a non-work related motor vehicle collision; (c) he returned to work in July 1971 and was placed on light duties in the Sydney Watch Room (also known as the Relay Room) where he has worked since that time undertaking administrative duties; (d) at the time of this injury he had the rank of Second Class Fireman; (e) he has not progressed beyond this rank for he is now a Level 3 Firefighter which is the modern equivalent of the former rank of Second Class Fireman; (f) some months after he lost his right eye he received a letter from the Secretary of the Board of Fire Commissioners, dated 7 September 1971. That letter read as follows:

The Board’s Medical Officer following examination of your case has advised that in view of having lost an eye you will never be acceptable as being fit for full fire fighting duties.

Having regard to this disability the Chief Officer has recommended that as you are unable to be passed to drive and operate motor fire appliance and you are prohibited from full firefighting duties and thereby unable to improve to the requires standard you should remain at the rank of Second Class Fireman.

I am directed to inform you that the Board at its meeting of the 1st September, 1971, approved the Chief Officer’s recommendation.

20 The applicant stated that “I understood the letter to mean that the respondent would never promote me above the rank of Second Class Firefighter. My understanding of the Respondent’s position has not altered in the last 30 years”. In August 1996 and August 1998 the applicant received letters from Superintendent Messenger inviting him to apply for administrative positions. Both letters contained the statement that “all permanently redeployed personnel are being canvassed for interest”. ‘Position Descriptions’ were attached to both letters. In each case the ‘Position Description’ indicated that an essential requirement was the rank of Senior Firefighter. The applicant stated that he did not apply for either position because he was not a Senior Firefighter.

21 The applicant stated that he attended a meeting in 1998 with union officials and senior members of the respondent’s industrial relations staff to discuss his concerns about lack of promotional opportunities. It is unnecessary to record most of the applicant’s evidence concerning that meeting because, except for one event, we do not consider it to be relevant. The applicant stated that at one stage during the meeting Mr Leigh Bray, the respondent’s Manager of Industrial Relations, read aloud various details from the applicant’s personnel file including the fact that he had failed an examination in 1970 and that he had been reprimanded for conduct matters in 1994 and 1995. The applicant stated: “I felt humiliated by Mr Bray. I felt like a worm…”

22 The applicant said that “I also can recall on a number of occasions at the time of the annual medical check-up being told by Brigade doctors that I could not be returned to full duties. As far as I can recall I made requests to return to full fire fighting duties to Drs Pearce, Lim and Dawson”. Both Doctors Lim and Dawson denied, when giving evidence, that the applicant had asked to return to full fire fighting duties in the course of annual medical examinations. Ultimately, it is unnecessary for us to determine whether the applicant actually requested the three doctors to return him to full fire fighting duties for it is not in dispute that the respondent’s medical officers did not believe that the applicant was fit to undertake those duties. The applicant stated that he has never been tested by the respondent to ascertain whether he can perform the duties of a firefighter.

23 The applicant attached to his third statement (Exhibit F) a copy of a document headed “NSW Fire Brigades In Orders 2000/13” in which it is stated: “After 30 September 2000, all NSWFB appliance drivers must hold a Medium Rigid Licence, or, if driving an appliance with more than two axles (i.e. an aerial appliance), a Heavy Rigid Licence.” Mr Lavery stated that on 14 August 2001 the NSW Roads and Traffic Authority (RTA) granted him a licence class MR (Medium Rigid). This licence permits him to drive trucks and heavy vehicles. He stated that he disclosed his blindness in one eye to the RTA and that he received written advice from an employee of the RTA that he was eligible for a Medium Rigid licence so long as he passed the necessary tests. On the day he took his driving test he was required to undertake a standard vision test in relation to his left eye.

24 The applicant tendered a statement from Mr Joe Bowen, who was not required for cross-examination. Mr Bowen, who is an RTA accredited driving instructor and assessor, stated that he tested Mr Lavery’s ability to drive a medium rigid vehicle in June 2001 and on 4 February 2002. He stated that he was aware that Mr Lavery had lost one eye. Mr Bowen stated that “I could not find fault with Mr Lavery’s driving other than that he was a bit rusty with gear changes”.

25 A statement by Mr Christopher Read, the Secretary of the NSW Fire Brigade Union since 1994, was admitted into evidence. Mr Read was not required for cross-examination. Mr Read annexed to his statement copies of four letters which he wrote to the respondent between 22 September 1994 and 27 November 2000 concerning what he described as “the union’s concern that the Fire Brigades had a policy of not promoting permanently incapacitated firefighters”. Also annexed were copies of the responses which he received to these letters. On 22 September 1994 Mr Read wrote to the respondent in the following terms:

The Department has a long standing practice of refusing to allow the progression of permanently incapacitated firefighters through the ranks of the New South Wales Fire Brigades. This is a matter requiring the urgent attention of the Department…While the Department was most likely contravening previous disability discrimination legislation, that practice is certainly prohibited under the Act, as amended on 8th August 1994.

26 Mr LH Bray, writing on behalf of the Commissioner, responded to that letter. In that response, written on 29 September 1994, Mr Bray stated that: “Your comments have been noted and once the Department has formed a view you will be further advised”. Three years later Mr Read wrote to the respondent again seeking a response to the matters raised in his letter of 22 September 1994. In his letter of 11 December 1997 Mr Read wrote: “The Union can only assume that despite the passage of more than three years, the Department remains unable to form a view on this most obviously discriminatory matter”. On 12 January 1998 the respondent acknowledged receipt of Mr Read’s letter and wrote that “a reply will be forwarded within 14 days from the date of this letter”.

27 A year later, on 13 January 1999, Mr Read again wrote to the respondent. He referred to the earlier correspondence and noted that no substantive response had been received. Mr Read then wrote:

The Department’s continued failure to respond to the Union’s legitimate concerns is not conducive to constructive industrial relations. Indeed, the continued absence of a Departmental strategy to address the issues in a comprehensive and co-ordinated way has given rise to industrial disputation on more than one occasion…

The Union maintains that the Department’s policy of denying promotion to disabled and/or incapacitated firefighters is harsh, unjust and unreasonable in all of the circumstances. It is also patently discriminatory and as such, nothing short of disgraceful from a public sector agency which purports to act as an employer with a commitment to the principles of EEO.

28 The respondent replied to this letter on 21 January 1999. He denied the existence of any discriminatory policies and sought further details about the particular union members referred to in Mr Read’s letter. It is not clear whether these details were provided to the respondent.

29 The next letter attached to Mr Read’s statement, which he wrote to the respondent on 27 November 2000, is one which post-dates the events of this case (see paragraph 64). Nevertheless, part of it may be usefully quoted for it succinctly describes one of the key issues in dispute between the parties to this complaint. Mr Read’s letter was concerned with Award negotiations. Under the heading “Removal of All Barriers to the Progression of ‘Light Duties’ Members”, he wrote:

The Union understands that agreement now exists between the parties for this practice to cease forthwith and that all impediments to the right of any disabled member to seek progression through the operational rank structure will henceforth be removed…However, it will not redress the direct discrimination which has been visited upon a considerable number of existing ‘light duties’ members – in one instance in excess of 25 years – and the Union reserves its right to pursue this aspect, separately, in due course.

In his response, dated 12 December 2000, the respondent stated that “the Department is in favour of assisting ‘Light Duties’ firefighters in progressing to the rank of Qualified Firefighter, in order that they may seek, on the basis of merit, Special Duties positions”.

30 The applicant tendered a statement from Ms Neryla Jolly, a Senior Lecturer in the School of Applied Vision Sciences at the University of Sydney. Ms Jolly was not required for cross-examination. She attached to her statement an Orthoptic Report in relation to a test performed on the applicant on 17 January 2002. In the final paragraph of that report Ms Jolly stated:

The problem that is in consideration is that Mr Lavery is monocular which according to the “Medical Examination of Commercial Vehicle Drivers” 1997 does not enable two of the vision criteria required to hold a commercial license to be met unconditionally. These criteria are visual acuity (vision in the right eye is less than 6/18 – it is blind) and visual field (there is only a response from one eye). If the “conditional license” information is considered, then Mr Lavery does meet these requirements in that he has acuity in the left eye of 6/6 (with correction/glasses) and the visual field measure 140 degrees across the horizontal meridian. These outcome require further opinion regarding the eligibility to drive a heavy vehicle. One method of determining the ability of the driver is to test him in the on-road situation which in this case is in a heavy vehicle. It is therefore recommended that Mr Lavery be tested in the on-road situation.

31 Statements made by Station Commander Dennis Shepherd and Inspector Graham Webb were also tendered by the applicant. Neither man was required for cross-examination. Both men, who had been the applicant’s commanding officer at various times, gave similar evidence about the applicant’s work performance. Mr Shepherd stated that the applicant had shown “responsibility, honesty and good humour”, whilst Mr Webb said that he found the applicant to be “efficient and competent in the discharge of his duties in the relay room”.

32 The applicant tendered the award which governed his employment during the ‘relevant period’ (see paragraph 64, below). The Crown Employees (NSW Fire Brigades Firefighting Staff) Award 1997 (the 1997 Award) was made by the NSW Industrial Relations Commission (Hill J), pursuant to the Industrial Relations Act 1996, on 17 February 1997. The Award was expressed to operate from that date and to remain in force until 8 August 1999 (cl 46.2).

33 Cl 1.2 of the 1997 Award states that it “regulates the rates of pay and conditions of employment for employees covered by this award” and cl 46.2 declares that the award applies to all employees defined in cl 4. Those employees appear to be employees classified as either an “Operational Firefighter” or an “Executive Officer”. Both of those terms are defined in cl 4 but, for present purposes, only the definition of “Operational Firefighter” is relevant. That term is defined to mean:

“a Firefighter classified as one of the following: Recruit; Firefighter Level 1; Firefighter Level 2; Firefighter Level 3; Firefighter Level 4; Qualified Firefighter; Senior Firefighter; Leading Firefighter; Leading Firefighter (Qualified); Station Commander (having the rank of Station Officer); or Operational Commander (having the rank of Inspector).”

34 The 1997 Award contains clauses which govern matters usually found in awards such as rates of pay, higher duties allowances, hours of work, overtime and meal breaks. Clause 13 dealt with progression and promotion. The following parts of this clause are relevant:

13.5 Progression from the classification of Firefighter Level 2 to Firefighter Level 3, Firefighter Level 3 to Firefighter Level 4, and Firefighter Level 4 to Qualified Firefighter, shall in each case be subject to satisfactory completion of: 13.5.1 the training and/or examinations and/or training modules specified by the Commissioner for the classification immediately above the classification to which the employee is currently appointed; and 13.5.2 twelve months service in the classification to which the employee is currently appointed.

13.6.1 Progression to the classification of Qualified Firefighter is a mandatory achievement required for all Firefighters. Failure to achieve progression to this classification within a reasonable time will result in the employee being considered unsuitable for continued employment in the Department, and the employment of such an employee will be terminated accordingly. In such circumstances, the Department will advise the Union that the services of the employee are to be terminated.

35 Clauses 5 and 14 dealt with “Special Duties Positions”, which were defined in cl 4 to mean “a position classified as such by agreement between the Department and the Union and graded using a NSW Government accredited job evaluation system”. Relevant provisions are as follows:

14.1 As Special Duties Positions are initially classified and graded, the existing occupants of those positions will be appointed to those positions and reclassified accordingly. When such positions become vacant they will be advertised, and all future appointments shall be determined solely on the basis of competitive merit selection.

36 Clause 15 dealt with training and staff development. The following provisions are relevant:

15.2 The appropriate competencies based on relevant skills and qualifications requirements, as determined by the Commissioner for each classification level, shall be progressively implemented and shall be subject to an ongoing process of review and evaluation.

37 No evidence was lead by either party concerning whether the job evaluation of Special Duties Positions was completed by 1 September 1997, as mandated by cl 5.2.3 of the 1997 Award. We also received no evidence from either party concerning the content of the competencies determined by the Commissioner for each Award classification (see cl 13.2 of the 1997 Award).

38 The respondent lead evidence from 11 witnesses: Mr David Andrews (a retired Station Officer with the NSW Fire Brigade), Mr William Clifford (Flying Officer, NSW Fire Brigade), Dr Maryanne Dawson (the Medical Officer to the NSW Fire Brigade), Mr John Maguire (a retired Inspector with the NSW Fire Brigade), Dr Michael Lim (a former Medical Officer to the NSW Fire Brigade), Mr John Anderson (Assistant Commissioner, NSW Fire Brigade), Mr Douglas Messenger (Manager, Operational Personnel, NSW Fire Brigade), Mr Peter Mednis (Station Commander, NSW Fire Brigade), Mr Peter Stathis (Superintendent, NSW Fire Brigade), Mr Graham Dewsnap (Chief Superintendent, NSW Fire Brigade) and Mr Leigh Bray (Manager, Employee Services, NSW Fire Brigade).

39 Mr Andrews, Mr Clifford, Mr Maguire and Commander Mednis all gave evidence about the applicant’s conduct as a firefighter. All of these men served as the applicant’s commanding officer at various times. None of them held a high opinion of the applicant’s standard of work performance. Detailed evidence was presented about two incidents in the mid 1990’s: the first incident occurred at the Duke of Edinburgh Hotel when it was alleged that Mr Andrews found the applicant drinking a glass of beer at the bar whilst he was on duty and the second incident occurred at the City of Sydney Fire Station in the early hours of the morning when it was alleged that the applicant was asleep when he should have been on duty in the Relay Room. Disciplinary action was commenced against the applicant in relation to the Duke of Edinburgh Hotel incident but it was subsequently withdrawn.

40 Mr Andrews, Mr Clifford, Mr Maguire and Commander Mednis also gave evidence about their long experience as firefighters. Each man included in his statement comments to the following effect:

In my extensive operational experience in the Brigade, I say that it is absolutely vital for a firefighter to have good vision in both eyes in the safe and proper discharge of his duties. In the absence of such, a Firefighter puts himself not only at risk but also his fellow Firefighters and others at risk.

41 Assistant Commissioner Anderson gave evidence about the applicant’s duties as a firefighter in the early 1970’s when both of them were stationed at Waterloo. Mr Anderson made similar comments to those reproduced in paragraph 40, above, concerning the need for a firefighter to have good vision in both eyes.

42 Dr Maryanne Dawson has been the Senior Medical Adviser to the NSW Fire Brigades since September 1999. She is also the Medical Director of the Occupational Health Clinic at Westmead Hospital. Dr Dawson is a Fellow of the Royal Australian College of General Practitioners and holds a post-graduate qualification in occupational and environmental health.

43 Dr Dawson stated that “Mr Lavery cannot, by reason of the loss of his vision in one eye, be an operational firefighter for a number of reasons…”. In summary the reasons given by Dr Dawson were the loss of peripheral vision and depth perception caused by the applicant’s monocular vision. Dr Dawson stated that peripheral vision and depth perception are “critical safety issues…as regards both driving a fire appliance and being on a fire ground”. According to Dr Dawson the applicant’s reduced peripheral vision would render it more difficult for the applicant than firefighters with binocular vision to see potentially dangerous occurrences on a fire ground, or whilst driving a fire appliance in emergency conditions. The applicant’s loss of depth perception would render it more difficult for him than people with binocular vision to determine his distance from an object.

44 Dr Dawson gave evidence that following research conducted by her “I can state that no fire service in the world accepts a person with vision in one eye only as a Firefighter”. Dr Dawson challenged the decision by the RTA to issue the applicant with a Medium Rigid licence. She stated that “the National Road Transport Guidelines stipulate that if a person has vision in one eye, then that person does not meet the requirements to drive a heavy vehicle unconditionally”.

45 Dr Dawson also gave evidence about the respondent’s practices concerning firefighters with disabilities. She stated:

At any one time, the Brigade has 30 to 40 Firefighters who by virtue of their medical conditions are not fit to be operational Firefighters.

46 Dr Michael Lim was the medical officer to the NSW Fire Brigades from 1992 to 1999. He has had considerable experience as an occupational physician. Dr Lim gave evidence that he had reviewed the applicant on various occasions between 1992 and 1999. Relevant parts of his statement are as follows:

10. A person with total loss of vision in one eye loses the visual field on that side and loses a large percentage of the lateral field of vision on that side. Such a person also loses his sense of depth perception…

17. In my medical opinion, Mr Lavery has never been fit to be an operational firefighter for all of the above reasons and should not be so. As an operational firefighter, he would be at risk as regards his own personal safety together with that of his fellow colleagues and others.

47 Superintendent Peter Stathis held the position of Deputy Manager Operational Personnel with the NSW Fire Brigades from 1996 to 1999. At the time of giving evidence he was the Professional Standards and Conduct Officer. Superintendent Stathis stated that he was at the meeting held in 1998 between union officials and senior members of the NSW Fire Brigades to discuss light duties personnel. Whilst he remembered the applicant being at the meeting, Superintendent Stathis had little recollection of what was discussed. Superintendent Stathis gave evidence, which was similar to that outlined in paragraph 40, above, concerning the need for a firefighter to have good peripheral and three dimensional vision in order to perform the tasks of driving fire appliances and fighting fires safely.

48 Chief Superintendent Graham Dewsnap is the Assistant Director, Capability Training at the NSW Fire Brigades’ State Training College. He stated that “skills acquisition training is available to all departmental employees”. Chief Superintendent Dewsnap agreed with the proposition put to him by Ms Vukadinovic that operational firefighters below the rank of Qualified Firefighter received training as a matter of course during their daily work. He stated that a non-operational firefighter such as the applicant could apply to participate in training activities and that these would be made available to that person if his/her superior officers gave approval. Chief Superintendent Dewsnap also gave evidence which was in similar terms to that outlined in paragraph 40, above, concerning the need for a firefighter to have good vision in both eyes.

49 Superintendent Douglas Messenger has been the Manager, Operational Personnel for the NSW Fire Brigades since 1991. Relevant parts of Superintendent Messenger’s statement are as follows:

6. I have in the past written to the applicant, Mr Lavery and to other employees and requested that they apply for certain employment, however, to my knowledge those invitations to Mr Lavery were never taken up. The same letters were sent to everyone on light duties. The very reason I wrote to Firefighter Lavery at those times was because we would have considered him, had he applied for the position, notwithstanding the rank that he had. I knew of his rank at the time…

8. It is my view that if Mr Lavery had applied for that position or any other position he would have been given consideration in terms of that application on merit with any other employee and in particular the fact of his disability would not have been something which would have been taken into account to prevent him from getting a transfer into that type of job…

13. Mr Lavery has displayed no initiative in terms of any attempt to advance himself in the Brigade over the years.

50 During cross-examination Superintendent Messenger agreed with the proposition put to him by Ms Vukadinovic that to the best of his knowledge no firefighter below the rank of Qualified Firefighter, who was permanently on light duties, had been promoted. The Superintendent stated that Special Duties positions had been restricted to firefighters who had attained the rank of Qualified Firefighter because of union insistence. In his words, “it was a protection for the union to stop civilians getting into a Fire Brigade operational type position”. Superintendent Messenger stated that one firefighter who had become a quadriplegic whilst at the rank of Firefighter Level 1 (Mr Darren Ellen), had pushed and pushed for more training and is now paid at the rate of a Senior Firefighter “as a one off situation”. Superintendent Messenger agreed with the proposition put to him by Ms Vukadinovic concerning training and promotional opportunities for non-operational firefighters that “you’re expected to, of your own free will, go out and teach yourself things that you think might be necessary for you to progress”. He stated that operational firefighters are told what training they need to complete in order to be promoted and “also there’s a certain amount of responsibility on your supervisor to push you through those certain segments”.

51 In answer to questions from Ms Vukadinovic, Superintendent Messenger stated that the Fire Brigade had done the applicant a favour by keeping him in employment. When responding to a question from Ms Vukadinovic about earlier evidence he had given, Superintendent Messenger stated:

I said I find it strange that I’m here defending the actions of the Fire Brigade, the actions they did then. I mean, you know, Terry Lavery in those days, if he couldn’t do the job, I should imagine he should’ve been medically retired. If he’s not capable in the job he should’ve been retired. But the Fire Brigade were kind enough, I suppose, to help him and continue him in employment, as they’ve done with a lot of other people, and we’re finding it’s now come to backfire on us in a number of cases.

52 Mr Leigh Bray is the Manager, Employee Services with the NSW Fire Brigades. He stated that he was present at a meeting held in mid 1998 with union officials, Mr Lavery and others to discuss union concerns about firefighters progressing in rank whilst in non-operational positions. Mr Bray did not give any evidence about the allegation that he read aloud at this meeting various entries in the applicant’s personnel file (see paragraph 21, above). Mr Bray agreed with the proposition put to him by Ms Vukadinovic that the only way for a firefighter to be promoted was to be on active duty.

The submissions made by the parties

53 Both parties filed lengthy written submissions. On 6 August 2002 Ms Vukadinovic and Mr Farkas spoke to their own submissions, and responded to each other’s submissions. We have summarised those submissions in the paragraphs which follow. Where necessary, we have amplified this summary when recording our conclusions.

54 Ms Vukadinovic submitted that the respondent had committed seven distinct contraventions of the Act. The relevant substantive provisions were paragraphs (a), (b) and (d) of s 49D(2). Ms Vukadinovic focussed upon what she described as the discriminatory policies of the respondent. These were described as being the respondent’s practices of limiting on the job training and promotional opportunities to operational firefighters. The converse position was that a firefighter on permanent light duties, such as the applicant, received no training unless specifically requested and was ineligible for promotion. The difficulties were exacerbated in the applicant’s case because he had not reached the rank of Qualified Firefighter, Special Duties positions were limited to those people who had attained the rank of Qualified Firefighter and the applicant had no chance to achieve that rank because he was precluded from participating in the training and work experience which it was necessary to complete in order to be promoted. Ms Vukadinovic submitted that the 1997 Award was discriminatory because it precluded non-operational firefighters from training and promotion.

55 Ms Vukadinovic submitted that the applicant had never been individually tested to ascertain his skills in relation to employment tasks such as driving a fire appliance. The decision taken by the respondent to preclude any person with monocular vision from firefighting duties was an arbitrary standard which did not test individual capacities.

56 In this case the respondent was unable to rely upon the ‘inherent requirements’ exception in s 49D(4) of the Act, Ms Vukadinovic submitted. Whilst it was open to the respondent to argue that his conduct fell within the s 54 exception to liability, it was not established in this case that it was necessary for the respondent to treat the applicant as he did in order to comply with the provisions of any other legislation.

57 Ms Vukadinovic submitted that the applicant had sustained loss of wages and loss of superannuation benefits as a result of the respondent’s unlawful conduct. She submitted that in the normal course of events the applicant could have expected to have reached the rank of Qualified Firefighter (or earlier equivalent) by 1973. Consequently, the applicant, at a minimum, should receive by way of damages for economic loss the difference between his actual wages and those paid to a Qualified Firefighter since 1973. The applicant also included loss of superannuation and leave entitlements within the rubric of economic loss. According to Ms Vukadinovic the applicant was entitled to be awarded the statutory maximum of $40,000 for each separate contravention of the Act.

58 Mr Farkas submitted that the applicant was not promoted by reason of his disability but because of his lack of qualifications. As the applicant has never applied for promotion it cannot be argued that he has been the victim of any discrimination in relation to promotion. Mr Farkas submitted that the ‘inherent requirements’ exception in s 49D(4) of the Act was applicable to the facts of this case for if it were not “the logical result is to encourage and in fact put employers in a position where they have no choice but to fire a person who is rendered disabled and thereby obtain the protection of the defence…rather than making suitable provision for his or her continuing employment…”

59 The primary defence relied upon by the respondent was s 54(1) of the Act. According to Mr Farkas it was important to consider the inherent requirements of the position when determining the interaction between s 54(1) and occupational health and safety legislation. He submitted that it was an inherent requirement of the position of a firefighter to be an operational firefighter which involved performance of tasks such as driving a fire appliance under emergency conditions and fighting fires. In order to undertake these tasks it is necessary for a firefighter to have good peripheral vision and depth perception.

60 Mr Farkas submitted that it was necessary for the respondent to act as he did in relation to the applicant in order to comply with the obligations cast upon him by sections 15 and 16 of the Occupational Health and Safety Act 1983, sections 6, 11 and 85 (and the long title) of the Fire Brigades Act 1989, various provisions in by-laws made pursuant to the Fire Brigades Act 1909, various provisions in the Fire Brigades (General) Regulation 1992 and the Fire Brigades (General) Regulation 1997, and various Standing Orders made by the respondent pursuant to the power vested in him by cl 4 of the 1997 Regulation. Mr Farkas also submitted that the respondent was able to rely upon s 78 of the Fire Brigades Act 1989 which is a general provision that excludes the Commissioner from liability in relation to a matter or thing that “was done in good faith for the purposes of executing this or any other Act”.

61 In relation to the issue of remedies Mr Farkas submitted that the evidence disclosed that the applicant has demonstrated a lack of initiative and could not reasonably be seen as someone who could have reached the rank of Station Officer. He submitted that any award of damages could not exceed the statutory maximum of $40,000.

Issues of law

62 A threshold issue to consider is the period of time covered by the complaint. The Tribunal is given jurisdiction by s 96 of the Act. That section requires it to hold an inquiry in relation to “each complaint” referred to it by the President of the ADB pursuant to s 94(1). Complaints are first made to the President of the ADB pursuant to s 88 of the Act. The Act requires the President of the ADB to investigate each complaint and, if appropriate, to seek to resolve the complaint by informal means (see ss 89 and 92 of the Act). Thus, the Tribunal conducts inquiries into complaints first made to the President of the ADB. There are time limits governing complaints to the President of the ADB. Section 88(3) provides that a complaint must be lodged with the President of the ADB within 6 months of the date of the alleged contravention of the Act. The President is given the power by s 88(4) of the Act to accept a complaint lodged out of time if good cause is shown.

63 The net effect of this statutory scheme is that in the absence of evidence that the President of the ADB has exercised his/her power to accept a complaint out of time, the Tribunal must proceed on the basis that the ambit of the complaint, in terms of time, is limited to the six month period preceding the lodgement of the complaint with the President of the ADB. In other words, the grant of jurisdiction to the Tribunal, in terms of time, is limited to ascertaining whether there has been a contravention of the Act in the six month period prior to the date upon which the complaint was made to the President of the ADB, unless the President has extended that time period by exercising his/her statutory power to do so. This construction of the legislation was recently approved by the Appeal Panel in Wollongong City Council v Bonella [2002] NSWADTAP 26.

64 As there is no suggestion in this case that the President of the ADB exercised his powers to grant an extension of time, the applicant may only succeed in his complaint if he can establish that the respondent contravened the Act in the six month period prior to the date upon which he lodged his complaint which was 9 March 1999. The applicant is not precluded, however, from arguing that the conduct about which he complains commenced at some date well prior to six months before his complaint was lodged with the President of the ADB and that the conduct has continued over time. As the Appeal Panel stated in Wollongong City Council v Bonella [2002] NSWADTAP 26 at paragraph 86: “A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues”. In such circumstances it is necessary, however, for the applicant to establish that the ‘state of affairs’, which allegedly constituted unlawful discrimination, continued, or existed, during the six month period prior to the lodgement of the complaint. This point is important in this case for the applicant has alleged that the respondent determined to treat him in a certain way on 7 September 1971 and that this conduct persisted, unchanged, until he lodged his complaint on 9 March 1999, and still persists.

65 In every complaint of unlawful discrimination the Tribunal must determine whether the impugned conduct of the respondent falls within a substantive provision, or prohibition, in the Act and, if that question is answered in the affirmative, then determine whether the respondent’s conduct amounted to unlawful discrimination as that concept is defined in the Act. It is also necessary to determine whether conduct by the respondent which would otherwise be unlawful is rendered lawful by a statutory defence or exception to liability. In some instances it is appropriate to consider at the outset whether the activities of the respondent fall within one of the exculpatory provisions in the Act for there is no point in considering whether the respondent has unlawfully discriminated against the applicant if there is a blanket exception to liability. For instance, in Commonwealth of Australia v Williams [2002] FCAFC 435, the Full Court of the Federal Court held that “the logical starting point” in a case under the Commonwealth Disability Discrimination Act 1992 concerning the dismissal of a member of the RAAF on medical grounds was the exception to liability in s 53 of the Commonwealth Act which provides, in broad terms, that it is not unlawful to discriminate against a person on the ground of disability in connection with employment in the Defence Force.

66 In this case, however, “the logical starting point” is those provisions in the Act which the respondent is alleged to have breached for both of the exceptions to liability relied upon by the respondent are of relevance only when it has been determined that the respondent’s conduct is unlawful in the absence of any grounds for exculpation.

67 The substantive provisions relied upon by the applicant in this case are found in s 49D(2) which deals with conduct by an employer in relation to an employee. The applicant has alleged contraventions of paragraphs (a), (b) and (d) of that sub-section which states:

It is unlawful for an employer to discriminate against an employee on the ground of disability:

68 The equivalent provisions in section 25(2) of the Act, which deals with sex discrimination, were examined at some length by the Tribunal in Bonella v Wollongong City Council [2001] NSWADT 194. The statements made in that case were approved by the Appeal Panel in Wollongong City Council v Bonella [2002] NSWADTAP 26. The Tribunal concluded that the language used in paragraph (a), “the terms or conditions of employment which the employer affords the employee”, encompassed all of the legal rights given to an employee, and all of the legal rights obligations cast upon an employer, by the various sources of legal obligation in any given employment relationship which can include express and implied terms of the contract, collective agreements, awards, statutes, Australian Workplace Agreements, and custom and practice. There is clear potential for overlap between paragraphs (a) and (b) because access to opportunities for promotion, transfer, training and other benefits associated with employment may clearly be a term or condition of employment. There is no reason on the face of the statute, or by application of the rules of statutory construction, why paragraphs (a) and (b) of s 49D(2) should be seen as being mutually exclusive. We have concluded, for the reasons set out below, that the respondent contravened both paragraphs in this case. In these circumstances it is unnecessary to consider paragraph (d), for it refers to “any other detriment”. If the respondent’s conduct falls within one of the other paragraphs in s 49D(2), paragraph (d) has no role to play for it is designed to encompass conduct by an employer not otherwise prohibited by s 49D(2).

69 Discrimination on the ground of disability is defined in s 49B of the Act. The applicant’s case has been conducted on the basis of a claim of direct discrimination, which is defined in s 49B(1)(a). No reliance has been placed upon the ‘characteristics extension’ in s 49B(2). No claim of indirect discrimination has been made (s 49B(1)(b)).

70 It was agreed between the parties that the applicant has a “disability”. “Disability” is defined in section 4 of the Act. Loss of an eye falls within paragraph (a) of that definition which reads: “total or partial loss of a person’s bodily or mental functions or of a part of a person’s body”.

71 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, an Appeal Panel of the Tribunal posed a question which should be asked in cases of direct discrimination. In the context of this case that question is: did the respondent, on the ground of the applicant’s disability, treat the applicant less favourably than it treated, or would have treated, a person without that disability in the same circumstances, or in circumstances which were not materially different?

72 The Appeal Panel identified two components to this question: differential treatment and causation. Differential treatment is a shorthand term which describes that part of the statutory definition of direct discrimination which is concerned with the applicant establishing that he/she received less favourable treatment than others without his disability in comparable circumstances. For differential treatment to have occurred the applicant must satisfy the Tribunal that the respondent’s treatment of him was objectively less favourable than the treatment which was afforded to, or which would have been afforded to, a person without the applicant’s disability in the same circumstances, or in circumstances which were not materially different.

73 If the applicant can prove differential treatment it is necessary to consider the question of causation. This involves an examination of the grounds or reasons for the differential treatment. To employ the language used by Street CJ in Director General of Education v Breen [1982] IR 93 at 95, it is necessary for the applicant to prove that his disability, his loss of an eye, had a “causally operative effect” upon the decision by the respondent to afford him differential treatment. The applicant’s disability must have been a consideration which the respondent took into account when determining to treat the applicant as he did.

74 The respondent has sought to rely upon what is usually referred to as the ‘inherent requirements’ defence in section 49D(4) of the Act. It has done so erroneously. The ‘inherent requirements’ defence is available only in the limited circumstances set out in s 49D(4). As the Tribunal pointed out in Coleman v Commissioner of Police [2001] NSWADT 34, the ‘inherent requirements’ defence is an exception to conduct which would otherwise be rendered unlawful by s 49D(1)(b) and (2)(c) of that Act. By virtue of section 49D(4) it is open to an employer to argue that it lawfully discriminated on the ground of disability when determining not to hire a person, or when it dismissed an existing employee, because that person, as a result of his/her disability, was (a) unable to perform the inherent requirements of the particular employment, or (b) would require assistance in order to perform the inherent requirements that would impose an unjustifiable hardship on the employer. The operation of this complex exception to liability was explained by the High Court in X v Commonwealth (2000) 74 ALJR 176. That case concerned s 15(4) of the Commonwealth Disability Discrimination Act 1992 which contains precisely the same wording as s 49D(4) of the Anti-Discrimination Act.

75 The limited operation of the ‘inherent requirements’ exception in s 49D(4) of the Act was acknowledged by Giles JA (with whom Priestley JA agreed) in French v Sydney Turf Club [1999] NSWCA 195 at paras. 75-76. This point was also noted by the NSW Law Reform Commission in its 1999 report concerning the Act (Review of the Anti-Discrimination Act 1977 at p 257). As the Tribunal pointed out in Coleman (at para 37), the NSW and Commonwealth legislation is out of kilter with disability discrimination legislation in every other Australian jurisdiction. However, there has been no legislative response to the comment by NSW Law Reform Commission in its 1999 Report (at p 257) that the limited operation of s 49D(4) is “illogical”.

76 On a number of occasions the Tribunal alerted counsel for the respondent to Coleman, and to other cases, in which the limited operation of the ‘inherent requirements’ exception had been explained. Mr Farkas submitted that Coleman was incorrectly decided for were it correct the purpose of the legislation, which he described as the protection of disabled people, would be defeated. He adopted, and adapted to the facts of this case, the argument referred to inferentially by the NSW Law Reform Commission in its 1999 Report (at p 257) that an employer which does not wish to promote a disabled person to a new position because of concerns about his/her capacity to perform the inherent requirements of that position may be better advised, in some circumstances, to dismiss that employee rather than to decline a promotion application because of the availability of the ‘inherent requirements’ exception to liability in dismissal cases. Whilst this argument exposes a defect in the legislative scheme it does not persuade us that the Tribunal should construe s 49D(4) as meaning anything other than what it says. The fact that s 49D(4) of the Act contains precisely the same wording as the equivalent provision in the Commonwealth Disability Discrimination Act 1992 appears to overcome any suggestion that the limited operation of the ‘inherent requirements’ in the NSW Act is a drafting error which has resulted in a failure to implement the true intent of Parliament.

77 The ‘inherent requirements’ exception simply does not arise for consideration in cases such as the present where the claim is that the respondent has breached s 49D(2)(a)(b) and (d) of the Act. What the complexities and outcome of this case illustrate is that the limited operation of the ‘inherent requirements’ exception results in the s 54(1)(a) exception carrying a load it was clearly not intended to bear. The precise nature of the duties cast upon an employer by disability discrimination laws are exceedingly difficult to determine if the only mechanism open to an employer which does not feel that it can safely provide training and promotional opportunities to an employee with a disability is to argue that it would breach the broadly phrased obligations arising under occupational health and safety legislation by permitting the employee to enjoy those opportunities.

78 Section 54(1)(a) of the Act provides that no conduct by a person is rendered unlawful if it was necessary for the person to act as he/she did in order to comply with the provisions of another Act. This provision has been considered by the Tribunal on numerous occasions, and a similar provision in earlier Victorian equal opportunity legislation was considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349. Section 109 of the Act stipulates that the respondent bears the burden of proof when relying upon the s 54(1)(a) exception to liability.

79 In some cases it may be relatively simple to determine whether conduct is excluded from the operation of the Anti-Discrimination Act by s 54(1)(a) because it was necessary for the respondent to act as he/she did in order to comply with the provisions of another Act. For instance, s 49ZYN(1) of the Anti-Discrimination Act renders it unlawful to refuse to provide goods or services to a person on the ground of age. Section 114 of the Liquor Act 1982 provides that it is unlawful to sell liquor to a person under the age of 18 years and s 59 of the Public Health Act 1991 renders it unlawful to sell tobacco products to a person under 18. Clearly, a shop keeper who is alleged to have contravened s 49ZYN(1) of the Anti-Discrimination Act by refusing to supply liquor and cigarettes to a person under the age of 18 would be able to successfully assert that his/her conduct was not unlawful because it was necessary for him/her to act as he/she did in order to comply with the provisions of the relevant legislation prohibiting the supply of liquor and cigarettes to people under the age of 18.

80 To adopt the language of McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413, the requirements of the Liquor Act 1982 and the Public Health Act 1991 concerning the supply of liquor and cigarettes to people under the age of 18 are “mandatory and specific” and therefore fall within the “protective cloak” of s 54. In the same case Dawson and Toohey JJ pointed out (at pp 389-390) that the Victorian equivalent of s 54 could not be relied upon “if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination”. Thus, in order for the respondent to successfully rely upon the “protective cloak” provided by s 54 it seems necessary to establish that the requirements of the other Act are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination. Whether particular conduct attracts the “protective cloak” of s 54 appears to be a mixed question of fact and law; the construction of the “requirements of the other Act” is a question of law, and whether the respondent was obliged to act as he/she did in order to comply with the requirements of the other Act is a question of fact.

81 In this case the legislative provisions upon which the respondent seeks to rely in order to attract the ‘protective cloak’ of section 54(1)(a) are mandatory, but not specific. This lack of specificity does not, of itself, render it legally impossible for the respondent to rely upon the ‘protective cloak’, because s 54(1(a) simply refers to it being “necessary” to comply with a requirement of another Act. It appears that the need for specificity was highlighted by McHugh J when describing the operation of the former Victorian equivalent to s 54 because it will usually be practically impossible for a respondent to argue that his/her conduct, which would otherwise constitute unlawful discrimination, was rendered lawful because it was “a requirement” for him/her to act as he/she did in order to comply with a general, as opposed to a specific, obligation cast upon him/her by another statute. The comments by Dawson and Toohey JJ in Waters amplify the observations made by McHugh J in that case. If a respondent has a discretion or choice concerning the manner in which he/she complies with a statutory obligation then it cannot be said that the particular obligation is both mandatory and specific.

82 As we understood the respondent’s submissions, he contends that it was necessary for him to act as he did in relation to the applicant because of the requirements cast upon him by sections 15 and 16 of the Occupational Health and Safety Act 1983, various provisions in the Fire Brigades Act 1989, and delegated legislation made pursuant to that Act.

83 Sections 15 and 16 of the Occupational Health and Safety Act 1983, which have been repealed, but were in force at the time of the events under consideration in this case, imposed extremely broadly phrased obligations upon employers to ensure the health and safety of their employees, and the health and safety of members of the public who visited the employer’s workplace. Section 8 of the current Act, the Occupational Health and Safety Act 2000, casts obligations upon employers which are similar to those found in sections 15 and 16 of the former Act.

84 Section 15(1) of the 1983 Act provided that: “Every employer shall ensure the health, safety and welfare at work of all the employer’s employees”. Section 15(2) contained a non-exclusive list of specific obligations cast upon an employer by the statutory duty set out in s 15(1). It was an offence to fail to comply with s 15. The case law concerning this section reveals that the courts construed s 15 as an offence of absolute liability to which there was no defence of honest and reasonable mistake of fact (see e.g. State Transit Authority v Sloey [1999] NSWSC 47).

85 Section 16(1) of the Occupational Health and Safety Act 1983 provided that, “Every employer shall ensure that persons not in his employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work”. The term “place of work” was defined to mean premises where people work. Thus, s 16 is of relevance in this case only in so far as it imposed an obligation upon the respondent to safeguard members of the public who visited premises where the respondent conducts his undertaking.

86 Because of the general nature of the obligations cast upon employers by sections 15 and 16 of the Occupational Health and Safety Act 1983 there will usually be great difficulty in relying upon that provision in order to attract the “protective cloak” of s 54(1)(a). This point was acknowledged by Abadee J in David Jones (Australia) Pty Ltd v “P” (unreported, Supreme Court of NSW, 29 August 1997) and by Barr J in State Transit Authority v Sloey [1999] NSWSC 47 at paras 53-59.

87 The challenge in relying upon a broadly phrased statutory offence, such as s 15 of the Occupational Health and Safety Act 1983, in order to attract the s 54 “protective cloak” is well illustrated by considering a case, CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, from a vastly different area of law. In that case, which concerned an action in tort, members of the NSW Court of Appeal referred to the difficulties involved in determining whether circumstances raised hypothetically as a defence to that action would have constituted a criminal offence if actually committed. In CES the plaintiff sued the defendant, a medical clinic, in negligence for failing to diagnose her pregnancy. Part of the plaintiff’s claim was that she would have terminated the pregnancy had it been diagnosed at the appropriate time. The trial judge, in dismissing the suit, upheld the claim by the defendant that it would have been unlawful for the defendant to have had an abortion. On appeal, both Kirby P and Priestley JA referred to the virtual impossibility of determining in that civil suit whether an act which had not been committed, the abortion, would have constituted an offence of unlawful abortion under ss 82 or 83 of the Crimes Act 1900 if it had been committed. Similar difficulties arise when seeking to determine whether an act that was not committed by the respondent - providing the applicant with the training and promotional opportunities afforded to operational Level 3 Firefighters - would have amounted to an offence under s 15 or s 16 of the Occupational Health and Safety Act 1983. Ultimately, the respondent must convince the Tribunal that his relevant conduct in relation to the applicant was mandated by those provisions if he is to avail himself of the s 54 exception to liability.

88 The respondent also submitted that various obligations cast upon him by the Fire Brigades Act 1989, and delegated legislation made pursuant to that Act, attracted the “protective cloak” of s 54. As the purpose of our inquiry is to ascertain whether the respondent breached the Act during the relevant period (9 September 1998 to 9 March 1999), there is no point in considering the obligations cast upon the respondent by any legislation, or other statutory instrument, which was not in force during the relevant period. Consequently, there is no point in considering the provisions of the by-laws made pursuant to the Fire Brigades Act 1909 or the Fire Brigades (General) Regulation 1992 because neither were in operation during the relevant period.

89 The long title to the Fire Brigades Act 1989 does not impose any obligations upon the respondent. It says that the Act is “to provide for the protection of persons and property from fire and hazardous materials incidents, and for that purpose to constitute New South Wales Fire Brigades as a Department of the Government and to provide for permanent and volunteer fire brigades…”. Sections 6 and 11 of the Fire Brigades Act 1989 do not impose any mandatory and specific obligations upon the respondent. Section 6 imposes a general duty upon the respondent “to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire…”. Section 11 imposes general duties upon, and grants general powers to, fire brigades when dealing with fires and hazardous material incidents. Section 11(1) provides that when there is a fire alarm “a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger”. Section 11(2) provides for a similar duty and powers in relation to hazardous material incidents. Section 11 is clearly intended, amongst other things, to exempt people who drive fire appliances from the traffic laws when driving to fire and hazardous material calls.

114 The element of causation is also satisfied because it was not disputed that the reason for declaring the respondent to be non-operational, which resulted in him being denied opportunities for training, was his disability. Mr Farkas argued that the reason why the applicant was not promoted was because he lacked the necessary qualifications and not because of his disability. This is an argument without merit because the reason why the applicant could not obtain those qualifications was that he was denied access to training because of his disability. As we understood the respondent’s arguments, his primary submission was that he did not deny that this conduct fell within s 49D(2)(b) of the Act, but he asserted that he was lawfully entitled to act as he did because of the exception to liability in s 49D(4), and because he was lawfully obliged to act as he did in order to comply with the obligations cast upon him by other statutes.

115 The second way in which the respondent contravened s 49D(2)(b) of the Act is a little more complex. In effect, the cause of this breach was the action of the respondent in maintaining the applicant in a non-operational firefighter position where he was precluded from accessing the training and promotional opportunities provided to operational firefighters and where he was not provided with any equivalent training and promotional opportunities to those afforded to operational firefighters. The factual findings which underpin this breach are set out in (4), (5), (6), (7) and (8) in paragraph 105, above.

116 During and prior to the relevant period the respondent unilaterally determined that the applicant was to be re-deployed in a non-operational firefighter position. In that position he remained classified as a firefighter, originally at the rank of Second Class Fireman and later, when the nomenclature changed, as a Level 3 Firefighter. Thus, in relation to the applicant, and some other employees, the respondent engaged in the practice of employing people as non-operational firefighters. The 1997 Award acknowledged the existence on non-operational firefighters, for it referred to Special Duties positions, but it did not operate as a code in relation to these employees for the respondent engaged in practices which fell outside of that award. For instance, the 1997 Award did not limit Special Duties positions to firefighters who had achieved a particular rank but, as a matter of practice, it appears that the Special Duties positions were available only to firefighters who had achieved the rank of Qualified Firefighter.

117 The effect of this practice was that a Level 3 Firefighter with a disability who had been deployed in a non-operational position, such as the applicant, was placed in a ‘Catch 22’ position concerning training and promotion. There was no training provided as a matter of course, as there was for operational Level 3 Firefighters. The only way to be promoted to the rank of Qualified Firefighter was to successfully complete the training provided to operational Level 3 and Level 4 Firefighters. Consequently, the applicant had no chance of being promoted because he was denied the opportunity to engage in the training provided to operational Level 3 Firefighters. Whilst there was evidence, which we accept (see finding (8) in paragraph 105), that one firefighter below the rank of Qualified Firefighter who was deployed in a non-operational position (Mr Darren Ellen) received training and was ‘promoted’ to a more highly paid position, this training was not made available as a matter of course, as it was for operational firefighters. Mr Ellen was not promoted in rank, but merely transferred to a more highly paid position.

118 This conduct by the respondent constituted discrimination against the applicant on the ground of his disability in contravention of s 49D(2)(b). It is clear that the conduct – denial of automatic opportunities for training and no promotional opportunities – fell within s 49D(2)(b). That conduct constituted discrimination on the ground of disability for there was both differential treatment and causation. The applicant was treated objectively less favourably than other Level 3 Firefighters who did not have his disability, in the same circumstances, because he did not receive the training and promotional opportunities afforded to operational Level 3 Firefighters. The circumstances were the same as the applicant had the same rank as the operational Level 3 Firefighters who received training as of right and promotional opportunities. Had the respondent maintained a separate stream of non-operational firefighters and provided those people with equivalent opportunities for training and promotion there would have been no differential treatment for there would have been no less favourable treatment. Had non-operational employees been taken out of the firefighter classification there probably would have been no differential treatment because it would not be appropriate to compare the treatment of non-operational personnel who were no longer firefighters with the treatment afforded to firefighters. The respondent did not do these things. Non-operational firefighters could only receive training by pushing and pushing. There was differential treatment.

119 The second element of causation is also satisfied because it was not disputed that the reason for maintaining the applicant as a non-operational firefighter, which precluded him from being promoted and receiving training as a matter of course during his daily work, was his disability.

120 As we understood the arguments advanced by the respondent, he did not directly address this second breach of s 49D(2)(b), but he indirectly dealt with it by claiming that it was necessary for him to act as he did in order to comply with the terms of the 1997 Award. For the reasons advanced at paragraphs 100-102, above, it was not open to the respondent to argue that his conduct fell within the ‘protective cloak’ of s 54(1) by claiming that he acted as he did in order to comply with the terms of an award. The respondent also contended that he denied non-operational firefighters below the rank of Qualified Firefighter access to Special Duties positions as a result of union insistence. We do not need to make any findings in relation to this contention for even if it is correct it is not a defence to an allegation of unlawful discrimination on the ground of disability.

121 The conduct of the respondent which constitutes two distinct contraventions of s 49D(2)(b) of the Act also amounts to two separate breaches of s 49D(2)(a). As we noted at paragraph 68, above, there is clear overlap between the prohibitions contained in paragraphs (a) and (b) of s 49D(2) because the words “terms or conditions of employment” in paragraph (a) will usually encompass, as they do in this case, training and promotional opportunities. The training and promotional opportunities provided to Level 3 Firefighters by the respondent were clearly terms or conditions of the employment of those firefighters. Training was provided as a consequence of award conditions (cl 15 and 16 of the 1997 Award), and as a matter of custom and practice within the NSW Fire Brigade. Similarly, promotional opportunities were provided because of award conditions (cl 15 of the 1997 Award) and as a matter of custom and practice. The entitlements to training and promotional opportunities probably became an implied term of each Level 3 Firefighter’s individual contract of employment with the respondent (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410).

122 The same analysis as that undertaken in paragraphs 118-119, above, may be employed to demonstrate that the respondent discriminated against the applicant on the ground of his disability in the terms and conditions of employment which the respondent afforded to him. It is unnecessary to undertake this analysis in detail because, for the reasons set out at paragraph 138, below, the number of separate contraventions of the Act which may be proved has no effect upon the maximum amount of damages available to the applicant or any of the other remedies sought by the applicant in this case.

123 The respondent maintains that his conduct was lawful because the applicant was unable to perform the inherent requirements of an operational Level 3 Firefighter. For the reasons given at paragraphs 74-77, above, it was not open to the respondent to argue that his conduct fell within the ‘inherent requirements’ exception in s 49D(4) of the Act in answer to an allegation that he had contravened s 49D(2)(a) and (b).

124 The respondent also maintained that his conduct did not contravene the Act because it fell within the ‘protective cloak’ provided by s 54(1)(a). He submitted that it was necessary for him to discriminate against the applicant on the ground of his disability when denying him access to the training and promotional opportunities offered to other Level 3 Firefighters in order to comply with the obligations cast upon him by ss 15 and 16 of the Occupational Health and Safety Act 1983, various provisions in the Fire Brigades Act 1989, and various provisions in the Fire Brigades (General) Regulation 1997 and the Commissioner’s Standing Orders. Section 109 of the Act stipulates that the respondent bears the burden of proof in persuading us that his conduct fell within this exception to liability.

125 The respondent’s submissions concerning s 54(1)(a) were directed primarily to what we have characterised as the first breach of s 49D(2)(b) (and, by implication, the first breach of s 49D(2)(a)). In so far as they apply to the second contraventions of s 49D(2)(a) and (b) we understood them to be coupled with the argument that the combination of the 1997 Award and union insistence rendered it impossible for the respondent to promote non-operational firefighters and appoint them to Special Duties positions. For the reasons already given these are arguments which are not legally open to the respondent.

126 The first legislative provision relied upon by the respondent was s 15 of the Occupational Health and Safety Act 1983. As we noted at paragraph 90, above, in the circumstances of this case it was necessary for the respondent to prove, objectively, that he would have been successfully prosecuted for a breach of s 15 of the Occupational Health and Safety Act 1983 had he permitted the applicant to engage in the training promotional and opportunities offered to other Level 3 Firefighters. The respondent has not done so. It is not sufficient in this part of the respondent’s case to merely argue that the applicant could not perform the ‘inherent requirements’ of the job of an operational firefighter.

127 As we understood the respondent’s evidence and submissions, there was no suggestion that the applicant could not physically perform the training tasks, including drills, driving under emergency conditions to fire scenes and fighting fires. The applicant’s acquisition of a Medium Rigid driving licence indicates that he persuaded the RTA that he could physically, and safely, perform the task of driving a fire appliance. As our factual finding (9) in paragraph 105 records, this evidence satisfies us that the applicant was physically capable of driving a fire appliance during the relevant period. Even though Dr Dawson challenged the correctness of the decision made by the RTA to grant the applicant a Medium Rigid licence, we must apply a presumption of regularity and proceed on the basis that the RTA acted lawfully when it issued that licence.

128 The contention advanced by the respondent was that the applicant could not perform the training tasks, such as driving a fire appliance under emergency conditions and fighting fires, with an appropriate degree of safety. It was argued that because the applicant’s loss of an eye inevitably meant that he experienced reduced peripheral vision and lack of depth perception, there was an increased risk that he would endanger himself and others when performing these inherently dangerous tasks. Whilst that contention may be correct it does not lead inevitably to the conclusion that the respondent would have breached s 15 of the Occupational Health and Safety Act 1983 by permitting the applicant to engage in these tasks. There was no evidence which would permit us to determine the extent to which the risk to the applicant and others was increased by permitting him to perform these inherently dangerous tasks with monocular vision. He may have engaged in the tasks for years without endangering anyone. Presumably nothing would have happened, in terms of a possible breach of s 15, if the respondent had permitted the applicant to engage in these tasks, unless the applicant had been involved in an incident where the safety of another person was jeopardised by the actions of the applicant which were directly referable to his reduction in peripheral vision or impaired depth perception.

129 The lack of specificity in the obligations cast upon employers by s 15 renders it exceedingly difficult in a case such as the present for an employer to successfully contend that it was necessary to discriminate against an employee on the ground of disability in order to comply with his statutory occupational health and safety obligations. The s 54 ‘protective cloak’, when coupled with s 15 of the Occupational Health and Safety Act 1983, does not permit an examination of whether the applicant could safely perform the inherent requirements of the position of an operational firefighter, as that process was described by the High Court in X v Commonwealth (2000) 74 ALJR 176 when discussing s 15(4) of the Disability Discrimination Act 1992. As we have said previously, the non-applicability of the s 49D(4) ‘inherent requirements’ exception to the circumstances of this case has meant that the respondent has sought to cast a load upon s 54(1)(a) of the Act which it was not designed to bear.

130 All of the comments made in relation to s 15 of the Occupational Health and Safety Act 1983 also apply to the argument that the s 54 ‘protective cloak’ is also attracted by the respondent’s need to comply with the obligations cast upon him by s 16 of that Act. In addition, s 16 placed an obligation upon employers in relation to the health and safety of members of the public when they were at the employer’s place of work. In the context of this case the respondent’s place of work must mean fire stations and office buildings rather than the streets and roads of NSW where fire appliances are driven in emergency conditions. The obligations which were cast upon the respondent by s 16 of the Occupational Health and Safety Act 1983 do not encompass the training activities such as driving under emergency conditions and fighting fires which were denied to the applicant.

131 The respondent has not persuaded us that it was necessary for him to discriminate against the applicant on the ground of his disability in order to comply with any provision in the Fire Brigades Act 1989, or any provision in any delegated legislation made pursuant to that Act. Mr Farkas was unable to identify any provision in that Act, or the 1997 Regulation, or the Commissioner’s Standing Orders which required the respondent to discriminate against the applicant on the ground of his disability when denying him the training and promotional opportunities afforded to other Level 3 Firefighters. The respondent has also been unable to demonstrate that his conduct amounted to an execution, in good faith, of the Fire Brigades Act 1989, which thereby permitted him to invoke the protection from liability shield provided by s 78 of that Act. Also, as s 78 must be interpreted in the light of later laws which apply to all employers in NSW, such as s 49D(2) of the Anti-Discrimination Act, it cannot be used a shield to avoid compliance with disability discrimination laws.

132 Accordingly, the respondent’s treatment of the applicant, which we have found to be in breach of s 49D(2)(a) and (b) of the Act, is not rendered lawful, pursuant to s 54(1)(a) or (b), because it was necessary for the respondent to act as he did in relation to the applicant in order to comply with the terms of another statute.

Relief

133 Having determined that the respondent contravened s 49D(2)(a) and (b) of the Act during the relevant period, and that his conduct was not rendered lawful by any of the exculpatory provisions in the Act, it is necessary to determine what relief, if any, should be ordered. The applicant has sought an order for damages and orders that he be deemed as having been promoted to the rank of Leading Firefighter since 1971 and that he be promoted to the next vacancy of Station Commander within the Sydney area.

134 The applicant has submitted that he is eligible to be awarded damages up to the statutory maximum of $40,000 in relation to each contravention of the Act that has been proved. The applicant argued that the respondent breached the Act in seven different ways; we have found four contraventions. The applicant’s contention concerning his eligibility for an award of $40,000 damages for each separate contravention of the Act is not correct.

135 Section 113(1)(b) of the Act states that the Tribunal “may…find the complaint substantiated” and make various orders for relief which include, in paragraph (i), an order that “the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. In this case there was one complaint which was lodged with the President of the ADB on 9 March 1999. As often happens, the complaint alleged multiple contraventions of the Act and the applicant ultimately proved that there were four contraventions. This result does not turn one complaint made by the applicant on 9 March 1999 into four complaints; all it means is that the applicant proved in the course of an inquiry into one complaint that the respondent committed four breaches of the Act. Consequently, the maximum amount of damages which the Tribunal can award to the applicant in this case which involved an inquiry into one complaint is $40,000.

136 Even though the applicant has complained about the respondent’s treatment of him since September 1971, our inquiry has been limited, because of the temporal ambit of the complaint, to determining whether the respondent contravened the Act during what we have described as the relevant period, namely 9 September 1998 to 9 March 1999. Any award of damages must be limited to compensating the applicant for any loss or damage which he has suffered, and continues to suffer, as a result of the respondent’s conduct during the relevant period.

137 We are satisfied that the respondent would have progressed to the ranks of Firefighter Level 4 and Qualified Firefighter had the unlawful discrimination not taken place. The evidence reveals that firefighters usually spent 12 months at the ranks of Firefighter Level 3 and Firefighter Level 4 before promotion to the next rank. There is no reason to conclude that the applicant would not have been promoted at the usual intervals had he been provided with the opportunities given to others. Thus, the applicant should be entitled to an award of damages to compensate him for the additional wages and other remuneration he would have received had he been promoted to rank of Level 4 Firefighter 12 months after the commencement of the relevant period, namely 9 September 1999, and to the rank of Qualified Firefighter a further 12 months later, 9 September 2000. The applicant has not persuaded us that he would have been promoted to a rank higher than that of Qualified Firefighter since 9 September 2000 if the respondent had not discriminated against him on the ground of his disability.

138 The evidence before the Tribunal does not permit us to calculate with accuracy the additional wages and other remuneration which the applicant would have received had he been employed as a Level 4 Firefighter from 9 September 1999 to 8 September 2000 and as a Qualified Firefighter from 9 September 2000 to date. Whilst the applicant has made a claim for additional long service leave entitlements we fail to see how these actual entitlements, as opposed to the rate of pay he would have received had he taken long service, were affected by his inability to be promoted to a higher rank. By ‘other remuneration’ we mean matters such as additional annual leave pay (for the loading is calculated as a percentage of salary), a reasonable figure for overtime (if this was normal practice for Level 4 and Qualified Firefighters) and the additional employer contributions which would have been made to the applicant’s superannuation fund (as these contributions are based on a percentage of salary). The parties are in a position to make these calculations with relative ease whereas we are not. Accordingly, we propose to order that the parties file and serve within 14 days documents in which they set out their calculations concerning the additional wages and other remuneration which the applicant would have received had he been employed at the ranks we have indicated during the designated periods.

139 In the event that the parties are able to agree upon these figures only one document need be filed. In the event that the parties are unable to agree the Tribunal will determine the appropriate figures on the basis of the additional documents which the parties will be ordered to file and the evidence which has already been given in this case. In time, the Tribunal will make a further order requiring the respondent to pay to the applicant a sum of money to compensate him for economic loss. Because of the order which we propose to make concerning non-economic loss, the sum for economic loss cannot exceed $30,000. Consequently, there may be little point in engaging in detailed calculations concerning economic loss if that figure greatly exceeds $30,000.

140 There is clear authority for the proposition that the Tribunal may award damages for non-economic loss in order to compensate the applicant for damage, such as distress, insult and humiliation, which he suffered by reason of the respondent’s conduct (Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217). We accept that the applicant suffered distress, insult and humiliation as a result of the respondent’s conduct.

141 We accept the applicant’s evidence that he first consulted the secretary of his union about this matter in May 1994 and that he patiently, but persistently, complained about disability discrimination for years. We draw the conclusion from Mr Read’s evidence that despite repeated requests from the union that the respondent consider the complex issues raised by this case, especially in light of the significant changes to NSW disability discrimination laws in 1994, the respondent did little, if anything, to respond to the applicant’s concerns until the applicant lodged his complaint with the President of the ADB.

142 We accept that the applicant was present at a meeting held at some time in 1998 between the union and senior members of the respondent’s staff to discuss training and promotional opportunities for non-operational firefighters. We accept that at that meeting a representative of the respondent, Mr Bray, read aloud matters from the applicant’s personnel file concerning his work performance which were of no relevance to the broader issues under consideration. We accept the applicant’s evidence that he “felt like a worm” as a result of this incident. In the circumstances of this case, and bearing in mind the comments made by May LJ in Alexander v Home Office [1988] 2 All ER 118 at 122 concerning a balanced approach to assessing damages of this nature in discrimination cases, we believe that an award of damages of $10,000 for non-economic loss is appropriate.

143 The applicant has also sought orders that he be deemed as having been promoted to the rank of Leading Firefighter since 1971 and that he be promoted to the next vacancy of Station Commander within the Sydney metropolitan area. Our power to make orders of this nature is found in s 113(1)(b)(iii) of the Act which relevantly provides that the Tribunal may “order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”.

144 In Holdaway v Qantas Airways Limited (1992) EOC 92-430 the former Equal Opportunity Tribunal held that an award of damages to a successful complainant does not preclude an order being made pursuant to s 113(1)(b)(iii). In AlldersInternational Pty Ltd v Anstee (1986) 5 NSWLR 47 at 69-70, Lee J held that this power was of sufficient breadth to support an order that an employer reinstate a dismissed employee. In Holdaway v Qantas the power was used to order that the successful complainant, who was a flight steward, be paid at the rate payable to flight stewards at a higher rank than he had achieved and that he be given training which was designed to enable him to achieve that higher rank. Thus, we are satisfied that we have the power to make the orders under consideration.

145 We do not propose to make the orders claimed by the applicant but we do propose to make an order within the ambit of those which he has sought. As we have already said, the applicant has not satisfied us that he would have progressed beyond the rank of Qualified Firefighter in the absence of unlawful discrimination during the relevant period. No order of this Tribunal can give the applicant the knowledge, skills and experience which are required of a Qualified Firefighter. He cannot be given that rank until he is appropriately qualified. We do not propose to order, as the Tribunal did in Holdaway v Qantas, that the respondent be required to provide the applicant with the training which is necessary for him to be a Qualified Firefighter. Whether the applicant ultimately acquires the requisite knowledge, skills and experience is a matter for the parties to discuss once they have had an opportunity to consider this decision. In the circumstances we believe that the fairest and most sensible order to make is that henceforth the applicant should receive the rate of pay and other remuneration of a Qualified Firefighter until he ceases employment with the respondent or is promoted to a higher rank.

Costs

146 The applicant has sought an order for his costs. On 8 October 2001 the Tribunal made an order against the respondent for the costs of that day because the respondent was not ready to proceed to hearing. The respondent was subsequently granted leave to apply to set that order aside. That leave may be exercised as part of the orders we propose to make concerning costs.

147 In the event that the applicant wishes to pursue his application for costs he must file and serve within 42 days written submissions in support of that application. The respondent must then file and serve written submissions in response within 14 days of receiving the applicant’s submissions. As this case occupied eleven hearing days, any costs order against the respondent is likely to amount to a substantial sum of money. Consequently, the parties should have an opportunity to make oral, as well as written, submissions in relation to costs. If an application for costs is pursued the Registrar will determine an appropriate date for oral submissions once the written submissions have been filed.

Observations

148 In view of the complexity of this case we believe that it is appropriate to make some brief comments about the effect of our decision. We have not decided that the applicant can be an ‘operational firefighter’, if that term is taken to mean a person who regularly performs tasks including driving a fire appliance under emergency conditions and fighting fires. We have not decided, however, that the applicant cannot be an ‘operational firefighter’. What duties the applicant continues to perform as an employee of the respondent will be resolved, no doubt, following discussions between the parties to this case and representatives of the NSW Fire Brigades Union. We have not ordered that the applicant be promoted to the rank of Qualified Firefighter, but we have ordered that he be paid as if he were a Qualified Firefighter.

149 What happens to the broader issues raised by this case, including the circumstances in which a firefighter should be declared non-operational, the maintenance of a stream of non-operational firefighters and the training and promotional opportunities for non-operational firefighters, is for others to determine. We have dealt with them only in so far as they were relevant to the individual complaint of disability discrimination lodged by the applicant.

150 Much of the evidence presented by the respondent in this case was directed towards a finding that the applicant, because of his loss of one eye, was unable to perform the inherent requirements of the position of an operational firefighter. We have been unable to determine whether the applicant can perform the ‘inherent requirements’ of an operational firefighter because of a gap in the legislative scheme which governs discrimination on the ground of disability. That gap also exists in the Commonwealth legislation. There are obvious constitutional and practical benefits in there being parity between Commonwealth and NSW disability discrimination laws. We have also determined that it is not possible to fill that gap by considering whether the need for an employer to comply with broadly phrased obligations which arise under occupational health and safety legislation renders lawful conduct which would otherwise constitute unlawful discrimination on the ground of disability.

151 On the facts of this case the respondent would not have established that his conduct fell within the ‘inherent requirements’ exception, even if it were available to him. There is, however, considerable intuitive appeal in the argument that a person with monocular vision, no matter how well he/she has adapted to the loss of sight in one eye, cannot drive a fire appliance in emergency conditions or fight fires with the appropriate level of safety. But the respondent did not lead evidence which indicated that he had addressed the legal issues which he needed to consider in order to fall within the “inherent requirements” exception.

152 The operation of the ‘inherent requirements’ exception was comprehensively explained by McHugh J, and by Gummow and Hayne JJ in X v Commonwealth (2000) 74 ALJR 176. The relevant law was summarised by the Appeal Panel in Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 at para 89:

In order to…fall within the exception created by section 49D(4), an employer must do at least two, and possibly three, things when considering a job application by a person with a disability. First, the employer must determine the inherent requirements of the particular position in question. Secondly, the employer must determine whether the applicant with a disability is able to perform those inherent requirements without assistance. Thirdly, if the second issue results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements of the position with a level of assistance which does not impose an unjustifiable hardship on the employer.

153 In order to determine whether a person can perform the inherent requirements of any particular employment it is necessary to first determine the precise content of that employment. This point was clearly made by Gummow and Hayne JJ in X v Commonwealth (2000) 74 ALJR 176 at 193:

because

unable

154 The capacity to perform those characteristic or essential requirements without unreasonable risks to the safety of others is an inherent requirement of any employment. In order to determine whether those risks are unreasonable it is necessary for the employer to consider the degree of risk to others and the seriousness of the risk.

155 In this case it appears that no real effort was made by the respondent to comprehensively identify the characteristic or essential requirements of the employment of an operational firefighter. As cl 13.2 of the 1997 Award provided that “all employees shall be required to satisfy and maintain the competencies determined by the Commissioner for the classification to which they are appointed” it should not have been difficult to identify the characteristic or essential requirements by reference to those competencies, if they do in fact measure whether an operational firefighter is able to perform the essential features of his/her employment.

156 Once having determined the “inherent requirements” of the particular employment it was necessary for the respondent to demonstrate that he had turned his mind to both limbs of the “inherent requirements” exception; they are, (1) whether the applicant was unable to perform the inherent requirements of the particular employment without assistance and, (2) if that be so, whether it would be unjustifiably harsh to expect the respondent to provide that assistance.

157 There is no evidence which persuades us that the respondent considered the applicant’s capacity to perform the inherent requirements of the employment of an operational firefighter in this manner. There was no clear exposition of the inherent requirements of the position followed by an individualised assessment of whether the applicant could perform those requirements, or could do so with assistance which would not impose unjustifiable hardship upon the respondent. We concede that those tasks were not easy.

158 The respondent’s difficulties were compounded by the fact that whilst firefighting entails dangerous activities when performed by anybody, it was necessary for him to comply with the requirement identified by McHugh, Gummow and Hayne JJ in X v Commonwealth (2000) 74 ALJR 176 that the employer must assess the degree to which the risk to the safety of others is increased by permitting the person with a disability to undertake the tasks in question. The evidence revealed that there is little published data concerning the capacity of people with long term monocular vision to perform tasks of this nature as safely as people with binocular vision. No attempt was made by the respondent to engage in individualised testing, even though we accept that it is extremely difficult to test whether a person with monocular vision can safely drive a fire appliance in emergency conditions or can safely fight a fire. There is no evidence, however, that individualised tests of any nature were even considered.

159 No evidence was lead concerning the second limb of the “inherent requirements” exception: that is whether consideration had been given to any assistance which could have been provided to the applicant, without unjustifiable hardship to the respondent, which would have permitted him to perform the inherent requirements of an operational firefighter. It may be that given the applicant’s disability, and the nature of the inherent requirements of an operational firefighter, that it was not possible to provide him with any services or facilities which would have permitted him to have performed those requirements with increased safety. But, in circumstances where the inherent requirements exception is applicable, the employer must demonstrate that it has at least considered this issue.

160 The final issue about which we propose to make a brief comment is Superintendent Messenger’s remark, which was referred to by Mr Farkas in his written submissions, that despite having done the ‘right thing’ by Mr Lavery 30 years ago, the respondent found himself involved in litigation concerning the applicant’s employment. No doubt the Board of Fire Commissioners did the ‘right thing’ in the early 1970's when they permitted the applicant to continue his employment as a firefighter, for in those days, when there were no disability discrimination laws, they could have caused him to be medically retired. But there are benefits which flow to the respondent and to the people of NSW, as well as to injured firefighters, when firefighters are permitted to remain in employment following injury. Security in employment must be a constant cause of concern to people who work in inherently dangerous jobs. Presumably, they are less likely to be distracted from the performance of dangerous tasks when concerns about security in employment following injury are minimised.

Decision and Orders

161 The decision of the Tribunal is that the complaint is substantiated. The Tribunal makes the following orders:

1. Within 14 days of the date of this order the parties are to file and serve documents which contain calculations concerning the additional wages and other remuneration which the applicant would have received had he been employed by the respondent as a Firefighter Level 4 from 9 September 1999 to 8 September 2000 and as a Qualified Firefighter from 9 September 2000 to date.

2. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of general damages.

3. From the date of this order the respondent is to provide the applicant with the rate of pay and other remuneration of a Qualified Firefighter until the applicant ceases employment with the respondent or is promoted to a higher rank.

4. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs.

5. Within 14 days of receiving the applicant’s written submissions in relation to costs the respondent is to file and serve written submissions in response.

6. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar.

7. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.

Citations

Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93

Most Recent Citation

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Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268

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CITATION:	Lavery -v- Commissioner of Fire Brigades [2003] NSWADT 93
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Terence Lavery RESPONDENT Commissioner of Fire Brigades
FILE NUMBER:	011023
HEARING DATES:	8/10/2001 - 10/10/2001, 11/02/2002 - 15/11/2002, 22/04/2002, 20/05/2002, 06/08/2002
SUBMISSIONS CLOSED:	08/06/2002
DATE OF DECISION:	05/06/2003
BEFORE:	Rees N - Judicial Member; Silva A - Member; Nemeth de Bikal L - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Disability Discrimination Act 1992 (Cth) Fire Brigades Act 1989 Industrial Relations Act 1996 Liquor Act 1982 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Public Health Act 1991
CASES CITED:	Clinch v Commissioner of Police (1984) EOC 92-115 Burrows v NSW Commissioner of Police (1994) EOC 92-654 David Jones (Australia) Pty Ltd v P (unreported, Supreme Court of NSW (Abadee J), 29 August 1997) State Transit Authority v Sloey [1999] NSWSC 47 French v Sydney Turf Club [1999] NSWCA 195 Cargill Australia Limited v Higginson [2002] NSWADTAP 20 French v Sydney Turf Club Ltd (No 2) [2002] NSWADT 98 Perlidis v Brambles Security Services Ltd [2003] NSWADT 11 X v Commonwealth (1999) 74 ALJR 176 Commonwealth of Australia v Williams [2002] FCAFC 435 Coleman v Commissioner of Police [2001] NSWADT 34 Maxwell v Commissioner of Corrective Services [2001] NSWADTAP 21 Peck v Commissioner of Corrective Services [2002] NSWADT 122 Wollongong City Council v Bonella [2002] NSWADTAP 26 Commonwealth of Australia v Williams [2002] FCAFC 435 Bonella v Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 David Jones (Australia) Pty Ltd v "P" (unreported, Supreme Court of NSW, 29 August 1997) X v Commonwealth (2000) 74 ALJR 176 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Holdaway v Qantas Airways Limited (1992) EOC 92-430 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Alexander v Home Office [1988] 2 All ER 118
REPRESENTATION:	APPLICANT B Vukadinovic, barrister RESPONDENT G Farkas, barrister
ORDERS:	1. Within 14 days of the date of this order the parties are to file and serve documents which contain calculations concerning the additional wages and other remuneration which the applicant would have received had he been employed by the respondent as a Firefighter Level 4 from 9 September 1999 to 8 September 2000 and as a Qualified Firefighter from 9 September 2000 to date.2. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of general damages.3. From the date of this order the respondent is to provide the applicant with the rate of pay and other remuneration of a Qualified Firefighter until the applicant ceases employment with the respondent or is promoted to a higher rank.; 4. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs.; 5. Within 14 days of receiving the applicant's written submissions in relation to costs the respondent is to file and serve written submissions in response.; 6. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar.7. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.