McKenzie v Dept. of Urban Services
[2001] FMCA 20
•11 April 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McKENZIE v DEPT. OF URBAN SERVICES & ANOR | [2001] FMCA 20 |
| HUMAN RIGHTS – Disability discrimination – treatment of complainant who was a medical redeployee and later declared “excess” officer in ACT Public Service – alleged failure to provide placement or employment at officer’s grade at the time disability incurred – lengthy periods of non-employment or placement – unsatisfactory placements – claims against fellow employees – test for non-discriminatory suitable placement – partial finding of discrimination – damages. EVIDENCE – Document case – utilisation of documents where no other evidence tendered. RES JUDICATA – Anshun estoppel – issue estoppel – consideration of estoppel between HREOC and Federal Magistrates Court – ss.46 PH (1)(a), (b), (c) and (f) of HREOC Act – ability to bring claim in Federal Magistrates Court previously rejected by HREOC Commissioner and Delegate of the President. DAMAGES – General damages – damages for constructive dismissal – future economic loss – requirement to take into account redundancy payments – requirement for mitigation. COSTS – Costs in Federal Magistrates Court in discrimination matters – costs awarded where representation clearly shortened the proceedings. |
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH1 (a), (b), (c),(d), (f); 46PO(4)(d), (f); s.46PR, s.46PO(1)
Disability Discrimination Act 1992 (Cth), ss.4(g); 5(1); 6; 15; 10; 71(2)(d)
Federal Magistrates Act 1999 (Cth), s.42
Anti-Discrimination Act 1997 (NSW), s.111(1)
Workplace Relations Act1996 (Cth), s.170CH(8)
IW v City of Perth 146 ALR 696 at 718 and 743 followed
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 discussed
Yat Tung Investment Co Limited v Doo Heng Bank (1975) AC 581 referred to
Minister for Immigration v Pochi (1980) 44 FLR 41 at 68 followed
Stuart v Sanderson 2000 FCA 870 considered
Midland Metals Overseas Limited v Controller General of Customs and Ors (1991) 30 FC 87 discussed
Commonwealth v Sciacca (1998) 17 FCR 476 referred to
McNeil v Commonwealth of Australia (1995) EOC 92-714 followed
X v McHugh (1994) EOC 92-623 considered
O’Neill v Borisan & Anor (1989) EOC 92-266 distinguished
Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 considered
Donna Marie Shiels v Trevor Leighton James & Anor [2000] FMC 2 referred to
Stephanie Travers by her next friend, Wendy Travers v State of New South Wales [2001] FMC 18 referred to
Stocks v Magna Merchants Ltd [1973] ICR 530 followed
Peter James Black v Brimbank City Council (1998) 152 ALR 491 referred to
KR Handley – Anshun today – 1997
Alan Hall – Res Judicata and the Administrative Appeals Tribunal
(1994)
2 AJAL 22
Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole (1996) 4 AJAL 37
| Applicant: | CHRISTINE McKENZIE |
| Respondents: | THE DEPARTMENT OF URBAN SERVICES and THE CANBERRA HOSPITAL |
| File No: | CZ3 of 2000 |
| Delivered on: | 11 April 2001 |
| Delivered at: | Canberra |
| Hearing dates: | 26 & 27 March 2001 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Sylvia Winters |
| Counsel for the Respondent: | Ms Louise Donohue |
| Solicitors for the Respondent: | ACT Government Solicitor |
ORDERS
That the first respondent pay to the applicant the sum of $39,000.00 as damages for unlawful discrimination.
That the first respondent pay the applicant’s costs of the hearing including counsel’s costs for preparation to be taxed, if not agreed, on the Federal Court scale.
Proceedings against the second respondent dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CZ3 of 2000
| CHRISTINE McKENZIE |
Applicant
And
| THE DEPARTMENT OF URBAN SERVICES and THE CANBERRA HOSPITAL |
Respondent
REASONS FOR JUDGMENT
What is nature of the dispute
Ms Christine McKenzie who was at all material times for the purposes of these proceedings an employee of the ACT Government with the rank ASO2, brings these proceedings against the Department of Urban Services of that government and The Canberra Hospital alleging disability discrimination contrary to s.5(1) of the Disability Discrimination Act 1992 (Cth) which states:
“5(1) For the purposes of this Act a person “(discriminator)” discriminates against another person “(aggrieved person)” on the grounds of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.”
This is an act of direct discrimination as opposed to indirect discrimination under s.6. Section.5(1) is to be read with s.15 DDA which prohibits discrimination in employment.
The alleged discrimination arose out of the ongoing treatment of Ms McKenzie who from the time of the commencement of the Act in March 1993 claimed to be a person suffering from a disability which prevented her undertaking any work which involved counter duties where she came into face to face contact with members of the public or duties involving the collection of and accounting for moneys. She also claimed a disability relating to the condition of opthalmoplegia from which she suffered.
Ms McKenzie claims that the discrimination arose out of the way in which the first respondent handled the provision to her of suitable employment given her status as a medical redeployee and then after a “spill” of all ASO2 positions in the motor vehicle registry in which she had been employed, an unattached officer with a disability as defined in s.4(g) of the Disability Discrimination Act:
4(g) A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The claim against The Canberra Hospital arises out of the treatment she allegedly received from The Canberra Hospital when placed in temporary employment in that Hospital in 1997.
The respondents generally deny the allegations of discrimination and in addition argue that the applicant has no entitlement to bring these proceedings as they arise out of matters which have already been determined by proceedings in the Human Rights & Equal Opportunity Commission and in the Federal Court of Australia.
What facts does the applicant rely on to establish her claim?
The application alleging unlawful discrimination was filed on
17 August 2000 and includes an affidavit of the same date to which was annexed a large bundle of documents. The affidavit was only formal and on 3 November 2000 the applicant swore a further, more detailed, affidavit of some 77 paragraphs which she attached to a document entitled “Applicant’s Statement of Issues” and to which was again annexed a large bundle of documents, many of which had been annexed to the previous affidavit. It was this later affidavit that was used as the basis of the evidence of Ms McKenzie who gave short oral evidence and was subject to under one hour’s cross-examination.
The affidavit details Ms McKenzie’s employment history with the Public Service commencing in 1981 when she joined the Commonwealth Public Service in Darwin. She stated that she intended to make the Public Service her career and to stay there until retirement. She explained how she came to move to Canberra and to be offered a position with the motor vehicle registry (MVR) to which she was transferred in June 1988 as an ASO1. On 29 November 1990 she was gazetted as an ASO2 counter officer and in that position was required to collect and acquit public moneys and to interface with members of the public seeking driver’s licences, vehicle registrations, learner permits and dealing with parking infringement matters, amongst other duties.
Although Ms McKenzie deposed to receiving satisfactory twelve monthly increment reports and to being on the top increment for an ASO2 counter officer she found that by 1991 she was having difficulties with the work environment and the introduction of the new TRIPS computer system. She had two periods off work on workers compensation as a result of stress between 21 February 1991 and
28 February 1991 and 30 May 1991 and 19 June 1991. In June 1992 she walked out of the Phillip Motor Registry where she was working as a counter officer suffering from stress. She was rotated off the counter to parking operations until 16 December 1992 when she was directed to return to counter duties. On 17 December 1992 her GP recommended that she should not return to counter duties and that consideration should be given to redeployment in another area. The medical certificate had the effect of medically establishing and describing the extent of the applicant’s disability. After this time the applicant says she became what she described as “a medical redeployee”. She was unfit to work in her gazetted position as an ASO2 counter officer at the MVR. She was fit to perform any administrative work except counter duties and thereafter was made the responsibility of a Department of Urban Services Rehabilitation Unit case manager.
In paragraph 17 of her affidavit Ms McKenzie articulates the various complaints which she sets out to establish in the balance of that document and in her evidence. In the circumstances it is worthwhile reproducing that paragraph in full:
“From the 17th December 1992 until my retrenchment on the 9th November 1998 DUS subjected me to a pattern of less favourable treatment on the grounds of my anxiety state and status as a medical redeployee by limiting my access to opportunities for promotion, transfer, and training by denying me benefits and subjecting me to adverse conditions of employment and detriment including, providing me with unsuitable duties at the MVR; failing to permanently redeploy (transfer) me as recommended by my GP into a position commensurate with my previous ASO2 (reclassified to ASO3) highly skilled position; failing to provide me with rehabilitation and retraining; refusing to provide me with work for the periods 29th September 1995 – 6th June 1996 and 5 September 1997-9 November 1998; unreasonably directing me to undertake CMO, functional and psychological assessments; providing incorrect and misleading information; providing me with a series of unsuitable placements into positions at ASO1 level or lower with no opportunity for permanent redeployment or career advancement; directing me not to remain in the workplace; applying for a restraining order against me; threatening me with forfeiture of office and disciplinary proceedings and declining to investigate my complaints.”
Between 1 April 1993 and 28 June 1993 Ms McKenzie was provided with a temporary placement at the Occupational Health and Safety Unit within the MVR. She claims there was no opportunity for permanent re-deployment or career advancement. The duties mostly involved inputting the computer system coding statistical reports. A report from Kevin Prideaux, her supervisor, contained in a referee’s report for the Department of Foreign Affairs & Trade to which she later made application, was generally favourable. However, on 28 June 1993 the applicant went on extended maternity leave and leave without pay for family responsibilities. Her approved leave ended on 29 September 1995 over two years later.
Whilst the applicant was on maternity leave the ASO2 positions at the MVR were “spilled”. They were reclassified from ASO2 to ASO3. The applicant claims that she was not told of her rights following this occurrence and she only became aware of it because of an anonymous tip-off when she received a duty statement and selection criteria for her position through the mail. It is, however, important to note that she did not apply for the new ASO3 position.
It is an important part of the applicant’s case that on 14 August 1995 information was provided to Comsuper indicating that she had requested details of retrenchment benefits following her receiving advice that she had been declared “potentially excess”. The applicant denies absolutely any intention to take voluntary redundancy at this time and asserts that the notifications were part of a campaign to persuade her to resign.
When the applicant’s maternity and unpaid leave ceased on 29 September 1995 she did not receive any employment within the public sector for a period of approximately nine months until 6 June 1996. She was, however, required to attend the Commonwealth Medical Officer on 16 October 1995 and 2 November 1995 under sick leave provisions to “determine which positions may be appropriate.” She did not attend those appointments because the CMO reports of 1993 had indicated that there was no need for any further CMO reports provided she was excluded from employment which involved counter work or accounting for money. She said that her situation had not changed since then and any further reference to the CMO was inappropriate. These refusals resulted in meetings with her case officers and others and an allegation that she was told that she would not be provided with work because there were no suitable positions available and that she should be made redundant.
The applicant was not paid during this period of unemployment and she eventually enlisted the support of the Merit Protection Review Agency. It was around this time that she was also declared “excess” which gave her certain rights to priority of employment although she claims she was not advised of this.
On or about 6 June 1996 she was offered “suitable duties at ASO2 level, in the central administration area”. However, when she attended a meeting with her case manager that offer was not repeated. She was offered two jobs, either as a GSO1 courier/driver or as an ASO1 counter officer at the Belconnen Library. As her medical condition specifically excluded working as a counter officer she could not take that position and she therefore agreed to try out the GSO1 courier driver work. She states that this placement was unsuitable, the duties were not administrative work nor commensurate with her previous ASO2 position and there was no opportunity for career advancement or permanent redeployment. The applicant ceased that placement on or about 4 July 1996 and was not provided with any further work until
29 July 1996 when she was provided with a supernumerary placement at a branch library at Tuggeranong, a 40 kilometre round trip from her home at Watson.
The Tuggeranong Library position was an ASO1 position and the other staff occupying that position also undertook counter duties. The applicant was not required to do counter duties and was allocated work shelving books, shelf reading, placing security devices in books, repairing and covering books. She claims these duties were not commensurate with her previous ASO2 highly skilled duties. She claims to have requested to be trained in skilled duties such as reservations, legislation, spot checks and mail and appears to have undertaken them for a short period after which she was removed from them without any explanation. When she complained the library presented her with a paper entitled “matters of concern” indicating areas in which her performance was not appropriate. The applicant denied the criticisms made of her in that document. At the end of 1996 the applicant took some leave as she was required to look after her son who had experienced a medical emergency and whilst she was on leave a Mr Daryl Weise came to her home and advised her that the work at the library had run out. She disputed this and informed him that she would return to work at the library until such time as another position had been found for her. When she attempted to put this proposal into action on 19 February 1997 she was required to leave the library after the police had been called. Following the termination of her placement she was provided with information that she had carried out her duties unsatisfactorily which she denied.
On about 26 February and until 7 March 1997 she was provided with a position at the ASO1 level at Totalcare. She stated that the position did not really exist. She said the former occupant had been made redundant and the position had been abolished. She was allocated duties such as photocopying and answering the telephone. Whilst at Totalcare she applied for a number of positions in the DUS Registry where she had worked before and where she was familiar with the work. She was told, however, that the Registry were not filling any positions at that time. Her affidavit indicates that she believes that this might have had something to do with the fact that it was being suggested that she had told Terri Kearns, the Registry Manager, that she would not be able to lift mail bags because of rheumatoid arthritis. She denies she ever said this or that she had rheumatoid arthritis.
In March 1997 the applicant indicated a wish to work in coding in medical records at the Woden Valley Hospital as she had qualifications in medical records (clerical). She had an interview and was offered a position as an ASO1 in the patient record systems department. This was not coding work but she was told that coding work was not available. She accepted the placement and worked in the hospital until 5 September 1997 although some of that period was taken up by leave. She was not happy at the hospital. Her productivity level never reached the amount required and she had personality conflicts with other members of staff. After she left work on 29 September 1997 she had no further work provided for her save that on 10 June 1998 she was directed to attend work for one hour to make an appointment to undertake functional and vocational (psychological) assessments. She continually complained about her situation. Eventually, after having a redundancy offered to her and then withdrawn when she did not take it up, it was re-offered to her and this time accepted. She was retrenched on 9 November 1998.
The applicant alleges that during the whole period following her return from maternity leave she actively sought other positions at ASO2 level which were advertised within the Public Service. She says she made forty such applications and was given a handful of interviews. She was offered none of the positions. She believes that she was considered for those positions in competition with other officers and not in isolation as was her entitlement as an unattached officer. It is suggested that this allegedly unfavourable treatment was given to her because of her disability.
What facts does the respondent dispute and how is that done?
The details provided above of the applicant’s case were made in the affidavit of 3 November and in her oral evidence. This evidence was not lengthy and unsurprisingly did not trawl through the complaints that were made in so much detail in the affidavit. The applicant stressed that she took the redundancy under duress after a six year campaign and the eventual realisation that the Department would not deploy her to a permanent position.
Ms Donohue who appeared for the respondents made a deliberate forensic decision to run what she described in her final submissions as a “documents case”. In support of that decision she did not cross-examine Ms McKenzie on each and every allegation or put to her each and every denial or explanation for the actions of her clients but she requested the court to consider the documents themselves. She tendered in her case two bundles of documents, many of which had already been exhibited to the applicant’s affidavits from which she felt an independent tribunal could ascertain her clients’ response.
A number of the documents were internal memoranda, others were statements of persons who had been asked to provide assistance in respect of the many complaints or enquiries initiated by the applicant. There are a large number of Government Gazettes indicating available positions within the Public Service that it was alleged were sent to the applicant. It was obviously the intention of those who produced this bundle of documents to provide “the other side of the story”.
Submissions in relation to documents
As indicated, both the applicant and the respondents produced a voluminous set of documents. There was considerable overlap between them. Both parties sought the admission of their documents but neither party wished me to accept the other’s as evidence of the truth of what was contained in them. The documents were variously described as business records or contemporaneous memoranda. I gave a short judgment in the course of the proceedings in which I indicated that the requirements of the Federal Magistrates Act, s.42:
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
and s.46PR of the Human Rights and Equal Opportunity Commission Act 1986:
In proceedings under this division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter 3 of the Constitution.
would govern my decision in the matter.
I took the view that all the documents, save a few which were quite clearly contentious, should be admitted but their admission was not an indication that without more I accepted the truth of what was written therein. I took the view that the documents could be of assistance:
a)To provide a general background of the matter; and
b)To provide direct evidence where a matter was not in dispute or if it was in dispute the disputation could be settled by consideration of a document, e.g. if the applicant made an allegation that she attended a medical review on a particular date and a document indicated that she attended it on another date.
In other words I would have wanted to see more than just a document recording a conversation if there was a serious dispute as to what was said during that conversation. Although I did not say this in my judgment, because it was delivered after the tender of the documents,
I would have expected any such dispute to have been the subject of cross-examination and if necessary evidence in rebuttal if I was being asked to find that the applicant’s version of conversations given in her affidavit was incorrect.
I should also make it clear that when I refer to evidence from Ms McKenzie, I refer to the evidence contained in the affidavit of
3 November, as admitted, and her oral testimony. I did not accept as evidence her voluminous and unsworn comments on the Respondents representations to HREOC found in the bundles filed in the matter.
What facts does the respondent dispute and how is that done (cont’d)?
Looking at the documents on the basis of my decision outlined above I came to the conclusion that the effect of the documents was to put in issue not so much the facts themselves but the applicant’s interpretation of them. In particular her interpretation of them as being discriminatory of her because of her manifested disability. The respondent’s case was that the applicant had not discharged the onus of establishing that this had occurred.
The documents which were filed show dealings between the applicant and her case managers and employers over the whole period with which this case is concerned. They indicate the search for placements and the management of the applicant during those placements. They corroborate the existence of difficulties between the applicant and her case managers and her employers. In her submissions to me Counsel for the respondents said that she did not take issue with many of the facts alleged and that the purpose of the tender was to put before me a documentary record of what occurred.
Findings of fact
I do not believe that it is necessary or even appropriate to make a finding of fact in relation to every single matter that has been placed in issue between the parties. Where I have not done this it is because I considered that those issues were not probative of the allegation of discrimination or were the product of assertion rather than proof.
I find that Ms McKenzie was an ASO2 officer working at the Motor Vehicle Registry undertaking counter duties which involved the acquittance of public moneys in December 1992. I find that on the 19th December 1992 Ms McKenzie provided a medical certificate from her treating doctor which indicated that she was unsuitable for counter duties or for the acquittance of public moneys and that this diagnosis was confirmed by the Commonwealth Medical Officer on 20th January 1993. The CMO made the following assessment/ recommendation:
“I do not consider that Ms McKenzie has a psychiatric disorder. She does appear to have some personality dysfunction with difficulty in interpersonal relationships. This is manifest in her disagreements with her supervisors and in her problems with handling clients. Her strategies for handling stress are not very effective, as evidenced by her walking out of the Phillip MVR, and out of the previous CMO examination.
I agree with her treating doctor that she is psychologically unsuited to working at counter duties in the MVR because of the factors in the work environment at the MVR which she had identified in her statement to Comcare. She may be able to perform counter duties in a different environment where she provides information or service to a different client group and without having to take responsibility for collecting and balancing money each day.
I consider that she is fit for all duties except counter duties at the MVR. If she is unable to be given duties at the MVR which do not include counter duties, then she should be redeployed in another area.
I do not consider that a referral for psychiatric or psychological assessment is necessary to determine her work capacity at this stage. However, she would benefit from referral to the staff counsellor or to a private psychologist for assistance in developing better interpersonal relationship skills and strategies for handling stressful situations.
Further CMO review is not necessary unless she continues to have stress symptoms or work performance problems after she has been redeployed.”
This document generally confirms the medical opinion expressed by the Applicant’s own doctor, Dr Newbury, in his medical report dated 17 December 1992. The one important distinction is that Dr Newbury says that:
“I feel she is psychologically unsuited to working in a public contact area and this is unlikely to change in the future. Consideration to be given to redeployment in an another area.”
The CMO’s view was that Ms McKenzie could probably undertake public contact work in a less stressful situation.
I find that after the provision of the CMO’s report Ms McKenzie was classified as a medical redeployee and her case was handled by the Human Resources division of the Department of Urban Services with a case manager.
I find that on 2 June 1993 the Applicant informed the Department that she intended to take leave from 28 June 1993 until 14 March 1995.
I find that this authorised leave was extended to 28 September 1995.
I find that following a meeting between the Applicant and Kevin Prideaux on 4 March the Applicant was temporarily placed as an ASO2 Supernumerary with the Occupational Health and Safety division of the Department of Urban Services. I find that at that time the Applicant informed her employers that she intended to take long service leave after the end of the three month placement. I find that Ms McKenzie was pregnant at this time although she may not have told (as indeed she was not obliged to) her employers. I find that the Applicant advised her employers of her pregnancy on or about 31 May 1993. I am unable to find that the work carried out by the Applicant at the OH&S Department was unsuitable or unsatisfactory.
I find that during 1995 the ASO2 positions in the Motor Vehicle Registry were “spilled”. The positions were reclassified as ASO3 and the existing officers were able to apply for them. I find that Ms McKenzie was a person who would have been entitled to apply for such a position but that she was not officially informed of her rights. However I also find that Ms McKenzie was aware of what had occurred, had received a copy of the appropriate forms and could have made such an application. Ms McKenzie’s reason for not making this application was that the job involved counter duties. It is unfortunate that neither party was able to provide me with a copy of the selection criteria for the re-advertised positions. I do find, however, that by the time of Ms McKenzie’s return to work in September 1995 the MVR alleged, and Ms McKenzie did not demur from the allegation, that there were no suitable duties for her.
I find that in August 1995 Ms McKenzie was written to advising her that she was a potentially excess officer and that at this stage she became entitled to certain rights pursuant to a series of Department of Urban Services (Enterprise Bargaining) Agreements the most important of which were in 1995 that:
(v) Potentially excess officers are considered for these vacancies before they are advertised in the Gazette, staff bulletin or the press. In accordance with the RRR awards, individual staff must be considered for advertised positions in isolation from other applicants.
(vi) Staff identified for redeployment will be given priority access to vacant positions at their substantive level.
and in 1996 to 1998:
7.4(i)If an excess officer applies for transfer the Department will consider that officer in isolation from and not in competition with other applicants.
and also:
(D) Staff identified for redeployment will be given priority access to vacant positions at their substantive level.
I find that on 25 September 1995 following a discussion Ms McKenzie was advised by her acting case manager that she was required to attend a CMO appointment. I find that at that date there was no intention to offer Ms McKenzie any employment until she did go to the CMO.
I find that on 28 September Ms McKenzie faxed a letter to Mr Brian Casey the manager of the Injury and Rehabilitation Unit declining to go to the CMO and requesting a transfer to another area. I find that there was a dispute relating to the necessity for Ms McKenzie to attend an examination by the CMO, which dispute was later resolved in Ms McKenzie’s favour. However Ms McKenzie was not offered any employment until 19 June 1996. Ms McKenzie remained at home. There are no documents found in the file produced by the Department that indicate that any effort was made to find Ms McKenzie a job until she submitted a further claim for worker’s compensation on 2 May 1996 complete with a doctor’s certificate. It is interesting to note the Respondent’s attitude to this period. In the document entitled “The First Respondent’s statement of facts and contentions”, on page 19 the Respondent states in the final paragraph the following:
“The first Respondent denies that it refused to provide Ms McKenzie with work. Ms McKenzie refused to return to duty until she had a permanent placement. Ms McKenzie was expected to return to duty after her period of leave and even though she was advised that the first Respondent considered she was on unauthorised leave she failed to return. Ms McKenzie did not agree to attend medical, functional and vocational assistance that would have assisted the first Respondent in seeking suitable placement for her.”
On the following page they state:
“Ms McKenzie did not return to work after her period of leave had finished. The first Respondent would have provided Ms McKenzie with appropriate tasks until such time as a placement could be arranged. As Ms McKenzie did not return to work and did not complete a leave form she was on unauthorised absence.”
These are very serious allegations and should have been proved. Not one piece of evidence had been produced to suggest that Ms McKenzie was offered the chance to return to the MVR Registry or that (as suggested in the response) she was required to do so. There is no evidence that any duties were available for her. There is no evidence that Ms McKenzie refused to return to duties unless she received a permanent placement. Given this situation it is not difficult to infer that whilst there may have been more than one reason for not wishing to make any particular effort to accommodate Ms McKenzie, eg. because it was the wish of the Department that unattached officers took redundancy wherever possible, another reason was the difficulty in finding her a satisfactory position given the nature of the disability from which she suffered.
On 6 June 1996 a Mr Tim Gooden wrote to Ms McKenzie stating that he had identified suitable duties at ASO2 level in a central administration area within the Department of Urban Services. Ms McKenzie responded to that letter by attending on Mr Gooden only to find that the letter was inaccurate. No ASO2 positions were offered to her. She was offered two positions, one of which involved counter work at the Belconnen Library and the other was a courier job. Ms McKenzie considered that her medical reports disqualified her from the public counter job and therefore took the position as a courier. This position, not unexpectedly, proved to be unsatisfactory. The position certainly was not an ASO2 position and was not commensurate with the duties she occupied whilst in the MVR or which she had proved she was capable of carrying out.
On 29 July 1996 the Applicant was given a temporary placement as a supernumerary at the Tuggeranong Library for a period of one month which was later extended. The work she was required to carry out at the library did not involve counter work. It involved tagging books for security (“bugging”), filing books and repairing books. The work was at an ASO1 position although Ms McKenzie was being paid as ASO2. There were problems at the employment. I find that Ms McKenzie did not carry out her duties entirely satisfactorily. The placement forms that I have seen each indicate a temporary placement of one month and then two months and then a further two separate months.
I find that Ms McKenzie’s eyesight problems (progressive external opthalmoplegia) which caused paralysis of the eye muscles, left eye ptosis, and limited neck movements were a partial cause of her problems in carrying out the work at the Tuggeranong Library. As part of her complaint dated 8 November 1999 to HREOC Ms McKenzie submitted a document with a letter dated 29 June 2000. On page nine of that document she refers to the opthalmoplegia and stated that it caused her to perform some tasks more slowly than others might. While there was not much argument about the opthalmoplegia at the hearing I am satisfied that it is a disability in respect of which her claim is made.
I find that after Ms McKenzie left Tuggeranong Library she started work on 24 February 1997 at Works and Commercial Services Fischwick Depot. This is otherwise described as the Totalcare placement. On 10 March 1997 she was given a placement at the Woden Valley/Canberra Hospital. The work at Canberra Hospital involved inputting patient records into a scanning machine. The work was at ASO1 grade and I find that it was not commensurate with the work carried out by Ms McKenzie at her ASO2 level. I also find that Ms McKenzie’s opthalmoplegia caused her problems at Canberra Hospital, but that she was provided with an eye test and stronger glasses to assist her.
I find that one of the problems associated with Ms McKenzie’s work at the Canberra Hospital related to the checking of that work. The hospital suggested that it was required to constantly check Ms McKenzie’s work. Ms McKenzie suggests that this was not necessary and in fact was done in order to harass her. She denies allegations of incorrect filing, but agrees that her work did not reach the numerical standards required. I am unable on the evidence presented to me to come to a conclusion on these allegations either way. It is, however, difficult to avoid the conclusion that Ms McKenzie’s personality made her a difficult workplace companion. On 5 September 1997 her placement at Canberra Hospital ended.
I find that from 6 September 1997 until Ms McKenzie accepted voluntary redundancy and retired on 9 November 1998 Ms McKenzie did not carry out any other work as an officer of the Department. She involved herself mainly in a series of complaints, appeals and reviews. She did receive details of available positions which were to be advertised in the Government Gazette. The notifications which she received appear to be notifications prior to the publication, which indicates that the letter of the agreement between the relevant union and the Department was being met. I find that Ms McKenzie applied for many of these positions but was not successful. In a detailed chronology document which was in the tendered bundle, there is set out details of the bulletins that were sent to Ms McKenzie but there is no indication therein that she was ever offered any other form of placement. I find that for the period between 8 September 1997 to
17 June 1998 Ms McKenzie was unpaid.
Contentions of law
It was submitted on behalf of the Applicant that the appropriate test to apply when considering whether or not discrimination had taken place was the “but for” test described in IW v City of Perth 146 ALR 696 by Toohey J at 718 and by Kirby J at 743 where His Honour said:
“The application of this ‘but for’ test was reaffirmed in James (James v Eastleigh Borough Council [1990] 2 AC 751 at 765). It has also been approved in this Court. In my view it is the correct test.”
It is submitted by the applicant that “but for” her disability she would not have been treated in the way she was from December 1992 onwards. “But for” her disability she would not have been given menial tasks and would not have been placed in “placements” which were temporary and supernumerary. “But for” the disability she would not have been moved from a permanent position to temporary ones. The temporary placements all, save the original OH&S placement, were at an ASO1 level, lower than her gazetted position, and were examples of less favourable treatment being given to the Applicant. In none of the positions were there opportunities for career advancement, and none of the positions which she was found involved the same type of administrative work that she had done as an ASO2 in the MVR.
It is submitted that the placement of Ms McKenzie into the jobs which she did do was an activity of a discriminatory nature and therefore it was irrelevant to consider in any meaningful way whether or not she performed the work assigned to her satisfactorily. The act of discrimination was the placing of Ms McKenzie in the jobs in the first place.
It is submitted that the actions of the Department in leaving Ms McKenzie at home without pay for two very lengthy periods of time was also discriminatory in that “but for” her disabilities, Ms McKenzie would have been offered more opportunities to retrain and placements which were more likely to lead to a permanent position.
Finally it was submitted that the Applicant is entitled to the benefit of Section 10 of the DDA, which states:
10. If:
(a) An act is done for two or more reasons; and
(b) One of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
It was suggested in the case of Ms McKenzie that there were two reasons for her treatment. Firstly the lack of positions and secondly her disability.
Ms Donohue indicated that she did not cavil with the formulation of the tests put by the Applicant. But she stated “the less favourable treatment must be because of the disability”. She accepted that the disability only needed to be a cause of the treatment.
Ms Donohue submitted that the failure of Ms McKenzie to apply for the ASO3 positions in the MVR after the ASO2 positions had been “spilled” was her own failure and broke the chain of causation. It was that action which placed Ms McKenzie in the status of an excess officer, not her disability. Although this was not said, the inference that I was expected to draw was that if she had applied for the ASO3 position she may well have got it and there would not have existed the occurrences which gave rise to this claim.
Ms Donohue submitted that while she did not take issue with many of the facts alleged, the onus of proof lay with the Applicant, and that no evidence that there was a causal connection between her disability and her treatment had been made out. She stated that “disability and hamfistedness is not enough”. It was submitted that I was entitled to draw an inference that contrary to treating the Applicant in an unlawful manner, these employers tripped over themselves trying to help her.
I was also entitled to infer that there were no suitable permanent positions available to Ms McKenzie at any relevant time, and she was obliged to compete with others in the labour market of the public service. This was a significant observation to make because, it seems to me, that if it is indicative of the actions of her clients, then those clients may have seriously misinterpreted their obligations to Ms McKenzie under the various awards and agreements to which the ACT Government and her union were parties.
Perhaps the most legally challenging of the submissions made by Ms Donohue was that I was effectively estopped from hearing these claims by a combination of the provisions of the HREOC Act, which were not specifically nominated, but which I believe were those relating to the power of the Commission to decline to hear matters which were over twelve months old, s.46PH(1)(b) and s.46PH(1)(f) which allows the Commission to terminate a complaint if it is satisfied that the complaint has already been dealt with by the Commission. Ms Donohue invoked the spirit of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and agreed with me that the submission could be articulated in the following way:
“The 8 November application was an iteration of previous complaints (two complaints lodged with the HREOC in 1997 and 1998) which had been concluded, and to the extent that that it was not, it consisted of material that could have and should have been included in those complaints.”
This articulation echoes the Yat Tung test (Yat Tung Investment Co Ltd v Doo Heng Bank (1975) AC 581), which was rejected in Anshun in favour of a test that barred matter that would result in inconsistent judgments. In my consideration of Anshun I have applied the appropriate test.
Findings of law
The parties agreed that the relevant date for the commencement of the DDA for this claim was 1 March 1993 and I am not required to make any findings in respect of conduct prior thereto.
As at 1 March 1993 Ms McKenzie had been taken off her normal ASO2 duties, had been placed under the care of a rehabilitation case manager, and had been placed in an ASO2 position in the Occupational Health and Safety Unit. I have already found that at this time Ms McKenzie had indicated an intention to go on long leave from a date in June. I find that in the context of a modern workplace it is not unreasonable or discriminatory for a conscientious employer who is aware that an employee is suffering from a disability which requires her to be found new employment, to place that employee in suitable temporary employment for a short period when the employer is aware that the employee will be taking a lengthy period of leave for whatever reason.
Ms McKenzie was then on continuous leave associated with the birth of her child from 10 June 1993 to 28 September 1995. During that period there was a spill of the ASO2 positions in the MVR and Ms McKenzie became unattached, and on 19 July 1995 a potentially excess officer. I am not satisfied that any of the matters referred to in paragraphs 21 to 25 of Ms McKenzie’s affidavit constitute discrimination against her on the grounds of disability.
Between 29 September 1995 and 6 June 1996 Ms McKenzie was not granted any placement or provided with any employment. The reasons given included that she had refused to attend appointments with the CMO. Further, at some time prior to 3 April 1996 a request was made of Mr Ian Hotchkiss to provide a work performance assessment on Ms McKenzie. This work performance related to a period in which Ms McKenzie had worked with the OH&S Unit prior to June 1993 three years before. The Department later received advice that requiring Ms McKenzie to attend a CMO was unlawful and that there was no value in the assessment. I am satisfied that these actions on the part of the Department manifest evidence that the refusal to accept Ms McKenzie back into the payroll or to attempt to find her a placement, or otherwise deal with her situation came about as a result of her disability and that this treatment constituted “less favourable treatment” than in the circumstances the Department would have treated a person without her disability. I am not satisfied that the excuse made by the Department that Ms McKenzie was difficult to contact was sufficiently established to upset this finding.
Ms McKenzie makes a general complaint that her placements were unsuitable because they were not at ASO2 level and did not provide her with the type of administrative work for which she was qualified and suited. The Applicant asserts that this is an absolute duty and that failure to comply with it constitutes discrimination where the person who is not being provided with the work suffers from a disability.
I cannot accept this. I believe that the obligations of the first Respondent in respect to Ms McKenzie were as follows. The Respondent had a contractual obligation to treat Ms McKenzie as an unattached and excess officer. Those rights included some preferences in seeking employment. Ms McKenzie also had certain rights as a medical redeployee. These again were contractual. Finally, Ms McKenzie was entitled to the protection of Section 5 and 6 of the Disability Discrimination Act. It was therefore possible that the Department could breach their contractual obligations to Ms McKenzie without necessarily at the same time breaching their obligations to her under the DDA. I do not believe that either obligation would have been broken by the provision to Ms McKenzie of temporary work at an ASO1 level where that work could have reasonably been expected to lead to employment at ASO2 level and possibly beyond. The work at ASO1 level would obviously have to be of a type similar in nature to that which she had previously carried out and to which she was best suited. Alternatively it would have to be work for which she was given any further necessary training and which she was happy to undertake. It seems to me that if there was a consistent failure to assist in finding such work, then there may well have been a breach of the Department’s contractual obligations (with which we are not concerned in this Court) and if the cause or a cause of the failure was Ms McKenzie’s disability there would have been a breach of section 5.
With these concepts in mind I have looked at the remaining complaints of Ms McKenzie. The first relates to her period of employment as a GSO1 courier/driver. This, of course, was not “suitable work in the central administrative area at ASO2 level” that she had been told she was to expect. Ms McKenzie was not given any information as to how this job might be commensurate with her abilities, or how it might lead to some other job which would put her back on the road to an ASO2 position and beyond. It was only a short term placement, and I think it should be looked in the context of the Department’s conduct overall.
The next placement and the next complaint advanced by Ms McKenzie relates to the period between 29 July 1996 and 19 February 1997 when she worked at the Tuggeranong Library. There is no doubt that the job was some considerable distance from Ms McKenzie’s home, or that Ms McKenzie had children whom she was required to look after. However today, many women with children are required to work long distances from home, and by placing that requirement on Ms McKenzie the Department did not appear to me to be acting in a manner discriminatory of her in respect of the disabilities which were known to them.
Ms McKenzie was provided with work which took into account her disabilities. She was not required to work on the counter, nor to handle money. Her duties were not “menial” as that word is defined in the Macquarie Dictionary, ie. relating or proper to domestic servants. The work could be better described as being of the hands rather than of the brain. I am prepared to accept that the duties were not of the administrative type that Ms McKenzie was given as an ASO2 in the MVR, and I also accept that the placement was temporary and supernumerary.
It is clear from paragraph 40 of Ms McKenzie’s affidavit that more skilled work was available because she requested Moya Norman to train her. Moya Norman apparently agreed to that request, but after three weeks she was removed from these duties. I am unable to find that Ms McKenzie’s disability was the cause of this removal. There is simply no evidence other than her own assertion. The existence of more skilled duties is, however, important. If Ms McKenzie had been permitted to continue to undertake the higher duties, then she would have been acquiring a skill which would have assisted her to find more appropriate employment. Because these duties existed, and because Ms McKenzie was given an opportunity to undertake them, and because I am unable to find that the termination of that opportunity was due to her disability, I find that the placement in Tuggeranong Library was by itself not a discriminatory act.
Ms McKenzie was then on 26 February 1997 until March1997 provided with a temporary placement at ASO1 level at Totalcare. She stated that the duties she was given were photocopying and answering the telephone (paragraph 46 of her affidavit). I would not be prepared to find that this very short placement was in itself discriminatory unless I could find some general pattern of unlawful behaviour in relation to placements. After the period at Totalcare, Ms McKenzie advised her case manager that as she had qualifications in medical records, she would be interested in working in medical records at the Woden Valley Hospital (paragraph 48). Her case manager contacted the Woden Valley Hospital and a position became available in the patient records section at ASO1 level. In paragraph 49 Ms McKenzie deposes as follows:
“I asked Sue Chicchio if there was a position available as a coder. She said words to the effect of: ‘There are no vacancies available at the moment as a trainee coder or coder, but if your work is satisfactory in PRS you will be considered for a position in coding and there is a possibility that you will become permanent’.”
This evidence indicates to me that the placement at the Woden Valley Hospital complied with the test which I adumbrated at paragraph 56. There was absolutely nothing discriminatory in that placement, so in order for her to succeed Ms McKenzie must be able to point to some discrimination against her during the course of that placement.
In paragraph 50 of the affidavit the Applicant states that no work place assessment was conducted prior to her placement and that neither of the acting case managers attended the work site either before or during the placement. She does not provide any evidence to establish that a cause of this conduct was her disability, nor is it possible to infer that a person without her disability would have been treated differently.
In paragraph 51 Ms McKenzie alleges that her placement in the public records system was unsuitable. She was supervised by Fay Yanni and claims that Ms Yanni subjected her to an adverse supervisory regime. She quotes examples, but does not in that paragraph establish the necessary connection with her disability. In paragraph 52 she makes further complaints about Ms Yanni, and says:
“She would say to me words to the effect of: ‘Can you see the files Christine’?”
Those words may have referred to the opthalmoplegia disability of which Ms McKenzie complained, but she does not succeed in establishing that this affected Ms Yanni’s behaviour.
In paragraph 53 Ms McKenzie describes how because of her anxiety and its manifestations, her work performance did not reach the required standard. She says that her access to training or practice in document preparation was limited. What she does not say in her affidavit, but what is clear from other evidence, in the form of documents filed by the Respondent, is that difficulties with her eyesight were recognised, and attempts made to rectify them by providing her with stronger glasses.
In paragraphs 54 and 55 of her affidavit Ms McKenzie indicates that she requested a transfer and then a meeting was held with Ms Yanni and a Ms Redmond. She notes in the affidavit that she did not then request another trainer, which would seem to me to be indicative of the fact that her relations with Ms Yanni could not have been as bad as she wishes to paint them. I am not satisfied that the Applicant has established a causal relationship between Ms Yanni’s treatment of her and her disability.
In paragraph 57 the Applicant makes complaint that she was not allowed to take an associate degree in law. The reasons for this were made clear in a letter dated 7 August 1997, and to my mind are clearly not discriminatory.
In paragraphs 58 and 59 of her affidavit Ms McKenzie describes incidents on 30 and 31 July when she was accused of misfiling. She denies the misfiling. She deposes to conversations which were obviously of a heated nature and which ended as follows:
“I said words to the effect of: ‘My work performance has been affected because of my disability and Fay’s adverse manner towards me … I am going to submit disability complaints against you and Fay’. Sue Chicchio went livid and screamed at me words to the effect of: ‘Don’t use your disability as a weapon – your life won’t be worth living. I am going to get the ball rolling. I am going to contact your people and they can find you another position’.”
This conversation was obviously distressing for both parties. It is also understandable on both sides. Ms McKenzie did not appreciate being wrongly accused of misfiling. Her supervisors did not believe that she was being wrongly accused. They thought that she had misfiled. They did not appreciate being reported for anti-discrimination. Such a report has serious effects in the public service. I am not prepared to find that this conversation in itself was discriminatory, although it appears to evidence a breakdown in communication between the parties. I find that the Applicant has failed to prove that this breakdown in communication was caused, at least in part, by her disabilities. Paragraph 61 to 63 appear to indicate some hiatus between the time of the events previously described and the time Ms McKenzie actually left the medical records on 5 September 1997. During the period
11 August 1997 to 29 August 1997 she was away on long service leave and was then granted leave without pay for a further period ending on
3 September 1997.
When Ms McKenzie left medical records she took with her a referee’s report dated 23 June 1997 which had been prepared in respect of an application which she had made for another position. Ms McKenzie relies on this referee’s report to belie the accuracy of the statements allegedly made about her performance. However, a thorough reading of the report indicates that it was prepared before many of the events which were the subject of the allegations had occurred, and is heavily qualified.
Following the termination of Ms McKenzie’s employment at Canberra Hospital on 29 September 1997, she was provided with no further placements, and not being required to attend work she stayed at home on a combination of leave either allegedly approved or unapproved. On 10 June 1998 she was directed to attend work for one hour to make an appointment to undertake functional and vocational assessments, which she declined to do. As previously stated, these months until she eventually took redundancy on 11 November 1998 were mostly taken up by Ms McKenzie accessing various grievance procedures.
I have already found that the placement of Ms McKenzie at Canberra Hospital was non-discriminatory and I am unable to find that she has established a causative link between any of the actions of the staff and her disabilities, either on the balance of probabilities, or at all. Given that I have made this finding also in respect of the Tuggeranong Library, I am not satisfied that the first Respondent has engaged in a pattern of discriminatory behaviour which would have included the courier or the Totalcare placement.
In regard to the period between September 1997 and November 1998
I have examined the documentation provided by both parties. I drew from a reading of that documentation a firm inference (this was not a mere suspicion or speculation (Minister for Immigration v Pochi (1980) 44 FLR 41 at 68) that there was a connection between the manifestations of Ms McKenzie’s disability in her difficult personality and the Department’s total inaction in regards to finding her another placement or any employment. The Department argues that it supplied Ms McKenzie regularly with copies of the Gazette, but I am prepared to find that more was required over such a lengthy period. Ms McKenzie could perhaps have been asked to attend counselling, could have been guided into further training, could even have been found another temporary placement, but nothing was done. The inference I have drawn is that the Department wished to terminate her services, and to do so as soon as possible. They wished to terminate her services because they felt she was unlikely ever to be a satisfactory employee. They felt this because of her personality manifestations which evidenced themselves in a prickly and combative personality, quick to complain and slow to conciliate, which arose out of her disability. Another employee without those personality manifestations, would, in my view, have been treated differently.
Having found two separate periods during which Ms McKenzie has established disability discrimination, I am required to consider the submissions made by Ms Donohue in relation to the estoppel point. It is appropriate firstly, to indicate what matters had been before the Commission. I do not have a copy of the first complaint which was made in either August or September 1997, but I have a letter from HREOC to the Department dated 11 September 1997 referring to it and requesting a response. The complaint relates to Ms McKenzie’s employment at the Tuggeranong Library and lists seven accusations. It describes her disabilities as “eye disability and psychiatric disability”.
On 20 May 1998 Ms McKenzie signed another complaint form and provided a document entitled “particulars of complaint” in which she stated that she was discriminated against at the Canberra Hospital, that she was suffering continuing discrimination from the Department “who have not provided me with alternative employment or wages since my placement was terminated at the Canberra Hospital on 5 September 1997”.
The first complaint was determined by the acting Disability Discrimination Commissioner in a letter to the President dated
23 March 1998. Ms McKenzie requested a review of that decision by a delegate of the President and on 7 August 1998, Sir Ronald Wilson, as delegate of the President, upheld the Commissioner’s decision to decline to further inquire into the complaint on the basis that the complaint was lacking in substance. Sir Ronald stated:
“I am satisfied there is no evidence or no sufficient evidence to establish that the complainant was treated less favourably by reason of her disabilities during her employment with the Respondent.”
The complaint against the Canberra Hospital was also the subject of a decision of the acting Disability Discrimination Commissioner to decline to further inquire into the complaint, and on 7 August 1998 Sir Ronald again wrote to Ms McKenzie advising her that he had reviewed the decision, and he was satisfied that the decision of the Commissioner was correct. Sir Ronald on this occasion wrote a letter of some six pages detailing his reasons for coming to that conclusion.
On 18 November 1998 the Applicant filed an application for an Order of Review pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1997 in respect of the later decision of Sir Ronald Wilson dated 7 August 1998, which she claimed she had not received until 21 October 1998. At this time such an action was the only one available to a complainant whose complaint had been dismissed prior to being given an inquiry by an inquiry Commissioner pursuant to s.71(2)(d) DDA as it was in 1998.
The application for an Order for Review was made to the Federal Court originally against the Human Rights and Equal Opportunity Commission. On 5 February 1999 Justice Finn ordered that the Department of Urban Services, the first Respondent in these proceedings, be added, and the matter was stood over until 12 March 1999. On 11 March 1999 the Applicant discontinued her application.
On 8 November 1999 Ms McKenzie made a new complaint of disability discrimination against the Department of Urban Services and the Canberra Hospital. In June 2000 she supplied particulars of that complaint. On 18 July 2000 the complaint was dismissed and terminated pursuant to s.46PH(1)(a), (b), (c), and (f) of the HREOC Act:
“On the ground that I am satisfied that the complaint against the Tuggeranong Library and the Canberra Hospital has been adequately dealt with by this Commission. I am satisfied the allegations against the Department of Urban Services are not unlawful, are lacking in substance, have been adequately dealt with by this Commission and were more than twelve months old by the time that this complaint was lodged with this Commission.”
There is no dispute that the Applicant was entitled to bring proceedings in respect of the latest decision in this Court pursuant to s.46PO of the HREOC Act. This section gives to an Applicant the right to have a judicial hearing into his or her allegation of discrimination which was previously only given by way of inquiry by an inquiry commission following a determination by a Discrimination Commissioner or a delegate of the President of HREOC. These inquiries were not always permitted, and, as we know, were not given to Ms McKenzie in respect of any of her complaints. The Court has certain powers under s.46PO(4) including a power under subparagraph (f) to declare it would be inappropriate for any further action to be taken in the matter. But that declaration cannot be made until after the proceedings have been heard and the Court is satisfied that unlawful discrimination has occurred.
In January 1997 His Honour Justice K. R. Handley delivered a paper entitled “Anshun Today” in which he stated:
“The extended doctrine including Anshun is sustained by the same principles of private right and public convenience which undergird the res judicata doctrine – the private right not to be vexed with multiple proceedings for the same cause, and the public convenience that litigation should come to an end, that court judgments be respected and inconsistency avoided.”
His Honour pointed out that there still remained a debate as to whether or not Anshun was merely a form of issue estoppel and noted that at that time the High Court had not determined the issue.
In this particular case the previous “proceedings” were not proceedings in a Court, and were not even the subject of a quasi-judicial inquiry. In Stuart v Sanderson (2000) FCA 870 Madgwick J rejected the proposition that an Anshun estoppel did not apply to administrative law proceedings. He was there dealing with an application for a writ of certiorari to quash a decision which had as its basis a criminal conviction. His decision not to invoke the principle was based upon his finding:
“But issue estoppel is not part of Australian criminal law: Rogers v The Queen (1994) 181 CLR 251. There is in my opinion, less justification for importing an Anshun barrier against a defence which an accused person might wish to raise than there is for permitting an issue estoppel to operate.”
Insofar as it may be argued that the applicant’s proceedings under the ADJR Act were proceedings in a Court, I would say that as the issues were not ventilated there would have been no proceedings to which an Anshun type estoppel could apply. Ms Donohue did not seek to argue an issue estoppel or a res judicata in respect of the ADJR proceedings.
I have examined in some detail the academic debate instigated by Alan Hall in his article “Res Judicata and the Administrative Appeals Tribunal” (1994) 2 AJAL 22 and continued by Timothy McEvoy in his article “Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole” (1996) 4 AJAL 37, and the various cases quoted therein, and in particular the decision of Hill J in Midland Metals Overseas Ltd v Comptroller General of Customs & Ors (1991) 30 FCR 87 in which His Honour forcefully explained that the Full Court in Commonwealth v Sciacca (1988) 17 FCR 476 has made it clear that a finding by an administrative tribunal would not give rise to an issue estoppel so far as a court was concerned, although he stated that the full bench had left open the possibility that a decision of the Court might give rise to an issue of estoppel in the tribunal. Neither of these cases were referred to in Stuart.
If Anshun was therefore but a branch of issue estoppel, there would be no question that the authorities bind me, and that this argument could not be put to prevent the Federal Magistrates Court of Australia from hearing the Applicant’s complaint. But even if Anshun is a principle on its own, I cannot see how it would operate to prevent the Applicant from having a hearing of her dispute, which she has been refused on no less than three occasions and to which she has a statutory entitlement, even if in the end it transpires that her position has not been improved. In Ms McKenzie’s case, her position has improved.
It may be argued against this finding that it will open the floodgates to applicants who were unhappy about previous decisions of the Commission not to grant them an inquiry into their complaint. Such a person would make a further application to the Commission which would make a finding that it would not proceed because the events in question took place more than twelve moths prior thereto and had already been the subject of consideration. That decision would have the effect of terminating the complaint, and upon receipt of the notice of termination the Applicant could proceed to this Court. Although this Court could make an order under s.46PO(4)(f), it could not do so until after it had made a finding of unlawful discrimination, and would therefore be obliged to hear the complaint in its entirety. I was not provided with any authority, either in support of the proposition put by Ms Donohue or by Ms Winters as to why, if I made the finding which I have made, the consequences would not be as I have outlined. I can find no authority either, and it may well be that the Act needs to be amended by the addition of a section similar to s.111(1) of the Anti-Discrimination Act (NSW), to prevent a spate of hearings in cases where the Respondent has reasonably thought that its involvement was at an end some considerable time ago.
The findings which I have made in relation to discrimination are findings against the first Respondent. The case against the second Respondent arises out of the alleged actions of its employees who were Ms McKenzie’s workmates at the Canberra Hospital. I have not found any of those allegations proved, and therefore the case against the second Respondent must fail.
Why did the applicant succeed?
I have found that the actions of the first Respondent in relation to the two lengthy periods during which the Applicant was off work between September 1995 and 1996 and between September 1997 and 1998 were unlawful in that they represented treatment of Ms McKenzie which was less favourable than in circumstances that were the same or not materially different, the first Respondent would have treated a person without her disabilities. I have found that this was not the only reason why they treated Ms McKenzie in the way they did, but Ms McKenzie is entitled to the benefit of s.10 of the DDA, which has the effect of not distinguishing between one or more reasons for a discriminator’s actions.
In respect of the other complaints raised by Ms McKenzie I have indicated that I am not satisfied that she has proved the allegation which she has made to the standard required by this Court, or alternatively, that the actions which she has described do not constitute acts of discrimination.
Decisions and orders
At the end of the proceedings, I was presented with a schedule produced by the Applicant which set out the damages which she was claiming. I was not informed that any other claims were being made, although other relief is available under the Act. I therefore address only that matter.
Ms McKenzie divided her damages into special and general. The special damages relate to the loss of earnings during the period she was off work. In the second period that she was off work and which I have found was caused by unlawful discrimination, she was paid, but she was not paid for the period between 29 September 1995 and 6 June 1996. She submits she is entitled to payment on the gross wage of a current ASO2, which she states is $32, 000 per annum. I was not provided with any other evidence that this is the correct wage, but I was told that it was the gross wage, and that it should be used (as opposed to the then current ASO2 wage) because no interest was being claimed. As the purpose of interest is intended to make up for the difference between the value of money as it was when it should have been given and as it is today, the adoption of this approach, would seem to me, perfectly reasonable. On the question of whether the award should be made gross or net, I note that in McNeil v Commonwealth of Australia (1995) EOC 92-714, the learned Inquiry Commissioner, having been apprised of taxation ruling IT2424, made an award on a gross basis. I would propose to follow this approach and make an award of $24, 000.
The second claim by Ms McKenzie is for hurt, humiliation and injury to feelings. Ms McKenzie asked that any damages under this head be generous, and cited in support of that contention X v McHugh (1994) EOC 92-623.
In support of her application for substantial damages Ms McKenzie pointed to the decisions in O’Neill v Borisan & Anor (1989) EOC 92-266 where a respondent was awarded $35,000.00. In that case evidence concerning the effect of the alleged discrimination upon the component was called and the Equal Opportunity Board of Victoria took the view that:
“The complainant has indeed suffered an enormous amount of stress and anxiety relating to the way she was treated by the respondents to the extent that prior to her actually returning to work she was physically ill because of her anxiety.”
Similar evidence was not called in this case.
In Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 the New South Wales Tribunal awarded $40,000.00 damages but in that case this sum, which is the maximum payable in that State, took into account not only the general damages element but also his loss of earnings. I do not believe that case is of much assistance in assessing Ms McKenzie’s general damages. In any event the damages that were awarded were awarded for victimisation. I have not found victimisation against Ms McKenzie.
I believe that the appropriate sum for general damages for hurt, humiliation and distress which takes into account the fact that I have not upheld many of Ms McKenzie’s complaints, but on the other hand does not seek to trivialise in any way the effect of the actions which I have found to be have been discriminatory, is $15,000.00.
Finally a claim was made for two and a half years damages for what Ms McKenzie describes as constructive dismissal. When Ms McKenzie did resign from the Department of Urban Services she was given a substantial payout by way of redundancy which was in accordance with the agreement made between her union and the ACT Government in respect of staff who were made redundant. The amount paid was approximately $19,000.00 and although other sums were paid as well, this was the severance payment element. That figure must be taken into account when considering this type of claim for wrongful dismissal (Stocks v Magna Merchants Ltd [1973] ICR 530, Peter James Black v Brimbank City Council (1998) 152 ALR 491). It represents approximately nine months of the then ASO2 salary. Ms McKenzie explained that she was not currently working but she provided no evidence that this was due in any way to her disabilities or to the discrimination suffered. Ms McKenzie’s claim for constructive dismissal is only a form of unfair or wrongful dismissal. It occurs when a person is obliged to resign. If Ms McKenzie had brought a claim for unfair dismissal against her employer she would have been unable to receive a sum in excess of six months wages by way of damages (Workplace Relations Act1996 (Cth) s.170CH(8)). The redundancy payment she received was in excess of that. In my view before a person can succeed in a claim for future economic loss under s.46PO of HREOC Act they would have to prove that had they not been discriminated against, they would have remained in employment and that they made some real attempt to mitigate their loss. None of this appears from Ms McKenzie’s evidence and I am therefore not prepared to make an award of this type in her case.
Costs
Anti-discrimination matters are generally considered to be a type of dispute which do not attract orders for costs. There was no provision for costs in the inquiry system previously operated by HREOC. In State tribunals there is provision to award costs but this is not often done. The Federal Court and the Federal Magistrates Court are courts of law and not tribunals and the HREOC Act does not contain any prohibition on the award of costs. In previous matters which have come before me, e.g. Donna Marie Shiels v Trevor Leighton James & Anor [2000] FMC 2 and Stephanie Travers by her next friend, Wendy Lorraine Travers v State of New South Wales [2001] FMC 18, I have indicated that I think an award of costs is appropriate where otherwise a party may have the benefit of his or her award of damages totally eliminated by the cost of the proceedings.
In this case the applicant has not succeeded in all of her claims and has been awarded a relatively substantial sum. In considering whether or not she should be awarded costs I have taken the following matters into account. First I have noted that this is the fourth time that Ms McKenzie has agitated her complaints and the first time she has been granted a hearing of them. Secondly, I note that although Ms McKenzie had some notional representation she did in fact produce almost all of the documentation herself. To this extent she is a self-represented litigant and would not be entitled to costs on any taxation. Thirdly, the matter was originally set down for five days. I have no doubt that if Ms McKenzie had not been represented it could well have lasted that time. Ms Winters appeared for Ms McKenzie at the last moment, obviously worked extremely hard to pick up the threads of a complex case and presented it competently and unemotionally to the court. The court was much assisted by this as were the respondents.
In the above circumstances I think the most appropriate order is for the first Respondent to pay the applicant’s costs of the hearing, including Ms Winter’s costs for preparation to be taxed if not agreed on the Federal Court scale.
I have considered the position of the second Respondent against whom proceedings were dismissed. The second Respondent has at all times been represented by the same legal representatives as the first Respondent. I do not believe that the case was significantly lengthened by the defence of the second Respondent and in the circumstances
I would not propose to make an order for costs against the applicant.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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