McLachlan v Endeavour Coal Pty Ltd

[2009] NSWADT 312

CITATION:	McLachlan v Endeavour Coal Pty Ltd [2009] NSWADT 312
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT David Charles McLachlan RESPONDENT Endeavour Coal Pty Limited
FILE NUMBER:	081109
HEARING DATES:	19, 20 and 21 August 2009
SUBMISSIONS CLOSED:	21 August 2009
DATE OF DECISION:	14 December 2009
BEFORE:	Furness G - Judicial Member; Hayes E - Non-Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Discrimination on the ground of disability - non work related injury – obligation to provide alternative duties
LEGISLATION CITED:	Anti Discrimination Act, Disability Discrimination Act 1992 (Cth) Coal Mines Health & Safety Act 2002 Coal Mines Health & Safety Regulations 2006 Occupational Health & Safety Act 2000 Occupational Health & Safety Regulation 2001 Workers’ Compensation Act 1987 Workplace Injury Management & Workers’ Compensation Act 1998
CASES CITED:	Adams v University of Western Sydney [2001] NSWADT 19 Allender v Dept of Human Services, Vic [1997] HREOCA 44 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46 Australian Medical Council v Wilson (1996) 68 FCR 46 Baalbaki v Rail Corporation of NSW [2009] NSWADT 47 Galiatsatos v Earlwood-Bardwell Park RSL Club and anor [2009] NSWADT 52 Husein v University of Western Sydney [2007] NSWADT 278 Bonella v Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Cosma v Qantas Airways Limited [2002] FCAFC 425, (2002) 124 FCR 504 Cucanic v 1GA Distribution (Vic) Pty Ltd [2004] FCA 1226 Denmeade v Kempsey Shire Council & Ors (No.2) [2003] NSWADT 225 Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 Secretary, Department of Foreign Affairs and trade v Styles (1989) 23 FCR 251 Kitt v Tourism Commission (1987) EOC 92-196 Laycock v Commissioner of Police [2006] NSWADT 261 Laycock v Commissioner of Police, NSW Police (EOD) [2007] NSWADTAP 34 O'Callaghan v Loder [1983] 3 NSWLR 89 Pignat v Richmond Valley Council [2005] NSWADT 162 Commonwealth v Humphries (1998) 86 FCR 324 Purvis v State of New South Wales (2003) 217 CLR 92 Sivananlhan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 State of Victoria v Schou (2001) 3 VR 655 Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408 Tame v New South Wales (2002)HCA 35 Varas v Fairfield City Council [2008] FMCA 996 and [2009] FCA 689 (25 June 2009). Tullamore Bowling Club v Lander [1984] 2 NSWLR 32 Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61 Y v Australia Post [1996] HREOCA Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 X v Commonwealth (1999) 200 CLR 1 77
REPRESENTATION:	APPLICANT C Ronalds, SC RESPONDENT K Eastman, barrister
ORDERS:	The complaints are dismissed

REASONS FOR DECISION

Introduction

1 Since about 2000, the applicant was employed by the respondent as an underground fitter at the West Cliff Colliery (the Colliery) in the Illawarra region of New South Wales. On 6 September 2007, while on annual leave, he suffered an injury to his left shoulder. On 6 November 2007, having been on leave since suffering the non work related injury, he received a medical certificate from his surgeon. The medical certificate stated that the applicant was fit for modified duties from 9 November 2007 until 1 May 2008 with the restrictions that he could not lift over 2 kilograms and could not perform repetitive/overhead work.

2 The applicant did not return to work at the Colliery until 8 February 2008.

3 The applicant claims that the respondent discriminated against him directly on the ground of his disability in breach of sections 49B(1)(a) and 49D(2)(a), (b) and (d) of the Anti Discrimination Act 1992 (the AD Act) by refusing or declining to provide him work to enable him to return to suitable duties at the Colliery during the period between 6 November 2007 and 8 February 2008.

4 In his submissions, the applicant claimed that the delay of over three months in enabling him to return to work and the imposition of a 12 week rehabilitation plan which was not individually based were further acts of disability discrimination.

5 The applicant further claims that the respondent discriminated against him indirectly on the ground of his disability in breach of sections 49B(1)(b) and 49D(2)(a), (b) and (d) of the AD Act by imposing on him the requirement or condition that he not be permitted to perform any of the duties of a mineworker at the Colliery from 6 November 2007 until 8 February 2008 unless he had total function in his left shoulder. That requirement or condition was not reasonable, having regard to the circumstances of the case, as suitable duties, consistent with the restrictions identified in the certificate issued by the applicant’s surgeon, could have been offered by the respondent.

6 On 3 July 2008, the applicant lodged a complaint of disability discrimination with the Anti Discrimination Board of NSW (the ADB). On 9 September 2008, the complainant requested that the complaint be referred to the Equal Opportunity Division of the ADT and that occurred on 27 October 2008.

7 The period of the complaint is 9 November 2007 to 8 February 2008.

8 For the applicant, oral evidence was given by him and by a co-worker, Robert Mitchell. For the respondent, oral evidence was given by Daniel Clifford, Operations Manager at the Colliery; Mark McColl, Health, Safety, Environment and Community Manager at the Colliery and; Stephen Lum OHS, Risk and Training Services Manager with IOH Injury and Occupational Health.

9 Among other evidence, the Tribunal watched a video of the operations of the Colliery and received into evidence photographs of those operations with particular emphasis on the work done by underground fitters.

The Facts

The mine

10 As at 6 September 2007, the applicant was employed as an underground fitter with the Colliery, owned and operated by the respondent. The Colliery employed approximately 260-300 full-time employees and 130 contractors.

11 The mine operates a longwall and three continuous miner units producing approximately 3.5 million tonnes per year. The method of mining at the Colliery is coal mining by longwall extraction. The distance from the surface to the longwall is approximately 12-14 kilometres and takes approximately 40 minutes to travel. Travel underground is by dolly car and two rubber tyred vehicles.

12 The mine operates 24 hours a day seven days a week. At the relevant time, the respondent had five roster patterns, which included shifts in the day, afternoon, night and at weekends of lengths between 8 and a half and 12 hours. The applicant was rostered to a permanent weekend shift.

13 People working underground must wear personal protective equipment including hard hat, steel cap boots, safety glasses and hearing protection. Other safety equipment includes dust mask, gloves, a self rescuer (which is a breathing device), battery and cap lamp on hard hat. Employees working underground also wear a tool pouch for the entire length of their shift, which weighs approximately 8 kg.

14 An underground fitter is a maintenance position that could involve manual handling duties, including lifting, carrying, pushing and pulling tools and heavy objects, assisting in team lifting or heavy objects and cables, performing work involving prolonged walking on unlevel ground and working in cramped and restricted spaces. The fitter's position involved lifting weights in excess of 2 kg. It involved repetitive work and it involved overhead work.

15 In oral evidence, the applicant agreed that this description, as set out in the job description for the position, described the duties of a fitter in broad terms. He gave evidence that a major part of his work on the weekend shift was inspections.

The applicant’s injury
16 On 6 September 2007 the applicant sustained a non work related injury to his left shoulder. On 14 September 2007, the first medical certificate was issued by the applicant’s surgeon stating that he would receive surgery on 25 September, his arm would be in a sling for six weeks following surgery and following removal of the sling he would be unable to lift more than 2kgs or do any repetitive or overhead work. A copy of that certificate was not provided to the respondent.

17 The surgery then took place on 25 September 2007. On 6 November 2007 a second medical certificate was issued by the applicant’s surgeon. In that certificate the applicant was certified fit for modified duties for the period 9 November 2007 to 1 May 2008 with the restriction that there be no lifting of more than 2kgs and there be no repetitive/overhead work. The duties which could be performed were not specified and further, the restriction was not limited to the left arm.
18 There is no dispute that in early November, probably 6 November, the applicant approached Mr McColl and indicated that he wanted to return to work. Mr McColl was given the medical certificate dated 6 November.

19 Mr McColl gave evidence that he told the applicant that a return to work plan (RTW plan) had to be developed. This plan details the duties, shifts, restrictions and review dates for each stage of the plan, and details other relevant considerations, such as attending treatment appointments and monitoring arrangements.

20 At this time, Mr McColl was new to the position and had not managed RTW plans before. He prioritised other work in relation to employees who were injured at work. On 19 November, he began developing the RTW plan for the applicant, including doing some research and discussing it with the HR Manager.

21 On 27 November 2007, during a meeting attended by the applicant in his capacity as a union representative and Mr Clifford, the applicant told Mr Clifford that he wanted to return to work. Mr Clifford told the applicant that he could not return to work due to the risk associated with re-injury. Mr Clifford gave evidence that the weight restriction would have prevented him getting into and out of equipment and operating machinery and of his real concern about the applicant falling and slipping on the wet and uneven underground surface. He believed the return to work should be staged due to the extended period the applicant had been off work. Further, the absence of any information from the treating surgeon as to suitable tasks was reflected in the commencement date of the RTW plan.

22 From his evidence, it is apparent that the applicant believed that the certificate dated 6 November 2007 amounted to a “clearance to go underground”. There was nothing in the words used by the surgeon which expressly gave such a clearance, or indicated any knowledge of or consideration of the precise tasks usually performed by the applicant. The surgeon stated what the applicant could not do, not what he could do.

23 A further meeting took place two days later at which time the respondent provided the applicant with a draft RTW plan which was to commence in early February 2008. That plan involved a staged return to work, initially one day a week, rather than the three days a week which the applicant had worked pre-injury. The applicant was unhappy with the draft, made that clear to those present and left the meeting. He did not believe that the plan was consistent with his medical certificate which did not require part time work.

24 There was evidence, which was not disputed, that where workers had a non-work related injury, a 12 week program was put in place for those who could not return to their pre-injury duties within 3 months. The medical certificate indicated the surgeon’s view that the restrictions he imposed would need to be applied for a period in excess of three months from the injury. Thus, the program applied to the applicant’s situation.

25 The applicant did not take the matter any further with the respondent until a meeting on 17 December at which Mr Clifford re-iterated his concern about the risk of re-injury and told the applicant that the only way he could return to work was on an approved RTW plan. The applicant said he wanted weekend work and more than one day a week.

26 On 20 December 2007 the applicant received a letter from the respondent informing him that an external rehabilitation provider, Stephen Lum had been engaged by the respondent to prepare a further RTW plan. On 14 January 2008 the applicant’s Union’s representative wrote to the respondent demanding that the complainant be immediately permitted to return to work on suitable duties. That letter was responded to on 15 January and on that same day the applicant attended an assessment with Mr Lum who, a few days later, wrote to the complainant’s treating surgeon.

27 Mr Lum gave evidence that, following his assessment of the applicant, and based on his experience in the mining industry, it was his opinion that, at that time, it was not possible for the applicant to perform all of his pre injury duties independently. The applicant’s evidence was also that he could not perform all his pre-injury duties, although he thought he could perform 85-90% of those duties.

28 On 5 February 2008, the applicant’s treating surgeon replied to Mr Lum and advised that he was happy for the applicant to perform whatever duties are available including underground mining on the proviso that he does no lifting more than 2 kilograms and no repetitive or overhead work. The surgeon approved the RTW plan.

29 On 9 February 2008 the complainant returned to work on restricted duties in accordance with an agreed RTW plan.

30 On 25 March 2008 the complainant’s treating surgeon certified him as fit to perform all pre injury duties without restrictions as of 28 March 2008.

The legislation

31 The relevant provisions relied upon by the applicant are set out below.

49D (2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.

49B (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

32 In order to for the applicant to prove that he was discriminated against on the grounds of disability, (direct discrimination) he must prove:

a)That he suffered from a disability within the meaning of s.4 of the AD Act.
b)that the relevant officer of the respondent treated him less favourably;
c)in the same circumstances, or in circumstances which are not materially different than the relevant officer treated or would treat another person who did not have that disability; (“the comparator”)
d)that the relevant officer did so because of his disability; (“causation”);
e)that such less favourable treatment resulted in an adverse consequence in terms of:
i)the terms and conditions of employment that were afforded to him, or
ii)by denying or limiting his access to benefits associated with employment; or
iii)subjecting him to any other detriment.

33 The applicant needs to identify the relevant comparator as a person who did not have the same or similar disability to the applicant but exhibited all of the same characteristics and conduct: see Purvis v State of New South Wales (2003) 202 ALR 133.

34 There was no dispute that the applicant suffered a non-work related shoulder injury as the result of a skiing accident and that that amounted to a disability as defined in s.4 and s.49A of the AD Act.

35 The applicant’s points of claim characterised his claim as the respondent refusing or declining to provide work to enable him to return to suitable duties.

36 There was no dispute that during the period of the complaint, that is 6 November 2007 until 8 February 2008, the applicant was unable to perform all of the work he performed pre-injury. While the applicant gave evidence that he could perform 85-90% of the work, at no time did he assert that, in the period of complaint, he could perform all of his duties.

37 Therefore, in order to succeed the applicant must persuade the Tribunal that the employer did not alter the duties which he had previously performed in order to accommodate his disability and by so doing, discriminated against him on the grounds of his disability.

38 The respondent submitted that the AD Act:

a)does not require an employer to modify or alter the duties of a position because an employee has a disability;
b)does not require an employer to find or provide alternative duties for an injured worker;
c)accepts that an employee must be able to perform the duties associated with his or her substantive position. He must be able to perform the duties safely vis-a-vis himself and co-workers.

39 In support of these propositions, the respondent referred to, among other cases, David Jones (Australia) Ply Ltd v P (unreported No 30062/96 (29 August 1997), Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252 at 268 - 269, Commonwealth v Humphries (1998) 86 FCR 324, Cosma v Qantas Airways Limited [2002] FCA 640 and Full Court decision Cosma v Qantas Airways Limited [2002] FCAFC 425, Forbes v AFP [2004] FCAFC 95 at [85], State of Victoria v Schou [2001] 3VR 655 at [255], Laycock v Commissioner of Police [2006] NSWADT 261 and confirmed on appeal [2007] NSWADTAP 34, Baalbaki v Rail Corporation of NSW [2009] NSWADT 47 at [16], Galiatsatos v Farlwood-Wardwell Park RSL Club and anor [2009] NSWADT 52 at [24] and X v Commonwealth (1999) 200 CLR 177 and Y vAustralia Post [1996] HREOCA 21.

40 In submissions, the applicant accepted that the AD Act "does not explicitly oblige persons to treat disabled persons differently from others in the community". Further, he accepted that the AD Act does not explicitly require an employer to change the nature of an employee's duties in order to accommodate a person's disability.

41 However, the applicant also submitted that in order to meet its statutory obligations under the disability discrimination law of NSW, the respondent had to take one of two actions immediately it became aware on 6 November 2007 that he could return to work with limitations. It had to either:

a)assess and determine whether the duties usually performed by Mr McLachlan as an underground fitter could be reconfigured in some meaningful way to enable him to perform the majority of his duties and stay within the restrictions imposed by Dr Goldberg, or
b)review and determine whether there were different duties that were available to Mr McLachlan to perform, including whether there were above ground duties either as a fitter or in some other role.

42 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261, affirmed on appeal [2007] NSWADTAP 34, concerned a police officer who had injured his back at work. The police officer was not successful in his application for a promotion because the Police Medical Officer report stated that he was not fit for full operational duty. He claimed direct discrimination on the ground of disability by denying him access to opportunities, and subjecting into to a detriment. The Tribunal dismissed his complaints and, in so doing stated at para [57]

The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances. Whether they ought to do so in some circumstances is a policy issue which it is for the parliament, and not the Tribunal, to determine.

43 The Tribunal is of the view that the decision in Laycock is correct and directly applicable to the facts in this matter. It is not persuaded by the applicant’s submissions that the fact that the applicant in Laycock was not legally represented and that it concerned a promotion, reduces the correctness or applicability of the decision to this Tribunal. It also does not accept the applicant’s submission that because the applicant in this matter could perform, on his evidence, 85% of his duties, the Laycock line of authority is inapplicable. Accordingly, to the extent that the applicant’s case is based on an argument to the contrary, it must fail.

44 However, the applicant also submitted that that is not the way in which the applicant puts his case. The applicant contends that the respondent treated him less favourably than it would have treated a person without his disability in the same or similar circumstances in the terms or conditions of employment, by denying him access to benefits or subjecting him to any other detriment.

45 Turning first to the terms or conditions of his employment, the respondent submitted that the only evidence in relation to the applicant’s terms and conditions of employment was contained in the 2004 Certified Agreement and the 2008 Workplace Agreement. Neither of those Agreements contains relevant provisions concerning employees who incur non-work related injuries, in particular, requiring alternative duties to be provided.

46 The applicant submitted that the respondent’s Injury Management Policy (the Policy) and Occupational Rehabilitation Standard (the Standard) were part of the terms and conditions of employment and binding on the employer. He referred to various decisions including Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 at 224-225 per Allsop J:

144 It was in issue whether the terms of the Family Leave Policy were contractual. They were plainly intended in their expression to reflect rights and duties of both Orica and its employees. They went to important matters of the employment relationship regulated by State legislation: s 66 of the IR Act.

145 The policy reflected Orica's responsibilities under these provisions. The policy was well known to the employees and was published on Orica's computer system.

146 It is unnecessary to decide the question whether the policy was contractually binding. There is much to be said for the proposition that it was... However, whether or not contractually binding in terms, it was plainly company policy and if the company conducted itself in breach of it in a serious way, that would be a matter assisting in the conclusion as to whether or not Orica had behaved in a manner in breach of the implied term referred to in [141] above.

47 The Policy sets out the responsibilities of injured workers, supervisors and others and was based on the principle of ensuring a return to work as soon as possible, and providing suitable duties/employment where practical. It does not expressly apply to workers with non work related injuries.

48 The Standard provides that “where possible (provided that suitable duties are available), this standard will also apply to non-work related injuries.” Among other matters, the Standard provides that an injured employee will not be entitled to return to work until a documented RTW plan has been put in place (p.6). Suitable duties will not be provided if, among other matters, the duties at the workplace are not appropriate to the injured employee’s medical restrictions.

49 The applicant contends that the Policy and Standard were breached in relation to the applicant in that he was not permitted to return to work notwithstanding having a “valid medical clearance to work with restrictions”.

50 The Tribunal is of the view that neither the Policy nor the Standard required the respondent to do anything more than it did. It developed a RTW plan, which was rejected by the applicant, it engaged an external consultant who developed a further RTW plan which was ultimately approved by the applicant’s surgeon and the applicant then returned to work pursuant to that plan.

51 While the applicant takes issues with the timeliness and content of those plans, there is nothing in the Standard or Policy which expressly dictates content or timeframes. The Tribunal does not consider it necessary to decide whether or not those two documents are part of the terms or conditions of the applicant’s work, given its finding that their terms are not inconsistent with the actions of the employer.

52 In addition, the applicant submitted that there was a “custom and practice” at the respondent’s Colliery to assign other duties to an injured worker and the respondent was required to “act consistently”. For the reasons given below, under the heading “Treated less favourably”, the Tribunal rejects this submission.

53 “Benefit” is not defined in the AD Act. It is to be given its ordinary meaning. The applicant submitted that he was denied a benefit by not being provided with an opportunity to participate in his employment and earn a wage and urged the Tribunal not to construe the term “benefit” narrowly by reference to Wollongong City Council v Bonella & ors [2002] NSWADTAP 26 at [62].

54 The respondent submitted that the only relevant benefit to the applicant was access to a RTW program, which was in fact granted to him. The respondent submitted that a benefit had to be something additional to a term or condition of employment, and as such, the right to work, or the right to work underground, could not be cast as a benefit. The respondent relied on Laycock.

55 At para 44, the Tribunal in Laycock said:

Section 49D(2) of the Act cannot be read in isolation from the body of law which governs relations between employers and employees generally, and from those laws which govern the specific employment relationship that is the subject of a particular case. Just as the High Court made it clear in Purvis v NSW [2003] HCA 62; (2003) 217 CLR 92 that the precise nature of a school principal’s obligations to a pupil under disability discrimination legislation must be determined in the light of the entire body of law which governs the relationship between a school and its pupils, so too must the precise nature of an employer’s obligations to an employee under disability discrimination legislation be determined by considering the entire body of law which governs that relationship. The provisions of the Anti-Discrimination Act add to the obligations cast upon employers by the common law, by statutes and by industrial instruments made pursuant to statute, such as awards and collective agreements. The obligations imposed upon employers and the rights conferred upon employees by the Anti-Discrimination Act must be construed in the light of those other laws. The language that is used throughout the Act when the relationship of employer and employee is regulated, such as "terms or conditions of employment", "promotion" and "benefits associated with employment", can only be properly understood when interpreted in the light of the entire body of law which governs the employment relationship.

56 That passage is not, in the Tribunal’s view support for the proposition that a benefit has to be additional to a term or condition of employment.

57 However, the Tribunal is of the opinion that the benefit denied as submitted by the applicant is not a benefit “associated with” his employment. “An opportunity to participate in his employment and earn a wage” is intrinsic to employment and, as such cannot be characterised as a “benefit associated with” employment.

58 The applicant submitted that the denial of the opportunity to work also amounts to him having been subjected to a detriment.

59 The respondent submitted that a request for beneficial treatment over and above a contractual entitlement, which has been denied, cannot amount to a detriment and cites State of Victoria v Schou (2001) 3 VR 655 at 658 and [11]. In that decision of the Supreme Court of Victoria, the issue was whether a worker who wished to work from home so she could care for her sick child was discriminated against and subjected to a detriment when she was not given the tools needed to work from home. Justice Harper found that, in general, a detriment did not arise where an employer failed to favour an employee with a benefit not available to other employees.

60 The respondent also submitted that to be denied the return to work because of the risks of re-injury could never amount to a detriment and referred to the decision in O’Callaghan v Loder [1983] 3 NSWLR 89 which in turn was referred to in Varas v Fairfield City Council [2009] FCA 689, in which Justice Graham stated in relation to the meaning of “detriment”

In O’Callaghan the Tribunal was concerned to ascertain what was meant by ‘subjecting ... to any other detriment’ within the meaning of s 25(2)(c) of the Anti-Discrimination Act. Mathews DCJ, as her Honour then was, considered that the Tribunal should adopt the meaning ascribed to the word ‘detriment’ by Brandon LJ in Ministry of Defence v Jeremiah [1980] QB 87 at 99 where his Lordship said:
‘I do not regard the expression “subjecting ... to any other detriment” ... as meaning anything more than ‘putting under a disadvantage’.’

Mathews DCJ said in O’Callaghan at 105:
‘The disadvantage must be a matter of substance; the legislation [referring to s 25(2)(c) of the Anti-Discrimination Act] is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is ... essentially a matter of fact to be determined in each individual case.’

61 The respondent also referred the Tribunal to the case of Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763 where the Equal Opportunity Board, Victoria considered the meaning of the word ‘detriment’ in the expression ‘a detriment to the employee’ within the meaning of s 21(2)(b) of the Equal Opportunity Act 1984 (Vic). The Board followed the approach suggested by Mathews DCJ as appropriate in O’Callaghan. It also opined that the test as to whether conduct amounted to ‘detriment to the employee’ was an objective one. It suggested that the test was not that the worker subjectively believed that he had been subjected to a detriment (at page 78,651).

62 The Tribunal agrees that the test is an objective one. While there is no doubt that the applicant believed he was being subjected to a detriment, objectively, the respondent had concerns about the risk of re-injury, those concerns were reasonable giving the restrictions imposed and the nature of the workplace, the respondent developed a return to work program, engaged an external consultant, approached the applicant’s doctor and when satisfied, permitted the applicant to return to work. It was not obliged to do more under any statute or any policy or standard it had adopted.

63 There was no objective detriment.

64 The applicant sought to distinguish Cosma v Qantas on the grounds that, in that matter, the applicant could not fulfill the inherent requirements of his position. The applicant in this matter, could, in contrast, perform the majority of them, ie 85%. However, Cosma concerned questions about whether the applicant was unable to carry out the inherent requirements of the particular employment. That is not an issue to be addressed in these proceedings. The applicant’s submissions address at some length the evidence in relation to what work the applicant could and could not do. Those matters are of particular relevance when s.49D(4) is enlivened. It is not in this case.

65 In the event that the Tribunal is wrong in holding that none of the provisions of s.49D(2)(a), (b) or (d) apply, it turns to consider whether the applicant has been treated less favourably.

66 Section 49B(1)(a) of the Act requires a comparator to be identified. The ‘comparator’ identified by s 49B is ‘a person without the disability’ (per Gummow, Hayne and Heydon JJ in Purvis at [213]; see also per Callinan J at [273]). It is necessary to compare the treatment offered to a disabled person and the treatment which would be given to a person without the disability. Section 49B(1)(a) requires that the circumstances attending the treatment given to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The circumstances referred to in s 49B(1)(a) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘perpetrator’.

67 As stated by Justice Graham in Varas:

It would be artificial to exclude from consideration some of these circumstances because they are identified as being connected with that person’s disability. Where it is alleged that a disabled person has been treated disadvantageously, all of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different (per Gummow, Hayne and Heydon JJ in Purvis at [222]-[224]; see also per Callinan J at [273]).

68 The respondent submitted that the appropriate comparator is another employee without the disability who cannot perform their full complement of duties.

69 It appears from the applicant’s submissions that his case is that more than one person might be characterised as a comparator. First, the applicant referred to other employees who had physical injuries and who were provided with other duties. The first employee, Peter Hardcastle made a statement and gave evidence that he broke his leg while playing sport in August 2006, was on crutches and was unable to go underground. Having obtained a “clearance” from his doctor that he could get up a flight of stairs with crutches, he performed the work of another employee who was on leave. He then performed alternative duties when that employee returned from leave.

70 The second employee, Darren Mitchell, did not give evidence. The tender of a witness statement he prepared was objected to, and the statement was rejected. Accordingly, the only evidence available as to his condition was provided by the applicant. The applicant stated that in August 2008, Darren Mitchell suffered from viral meningitis and for a period was unable to work underground and was provided with surface work.

71 Secondly, he seemed to suggest that he himself was an appropriate comparator. The applicant submitted that he was given administrative duties in 2006 for a two week period after he had a work-related injury and was unable to work underground. Thirdly, the applicant suggests that when a new piece of equipment is introduced, operators are trained over time and not stood down until trained. The applicant submits “that is a valid comparator with Mr McLachlan’s situation where for a period he was unable to perform a portion of his duties”.

72 The Tribunal is unable to accept the applicant’s submissions. In relation to the two employees, there is insufficient evidence to satisfy the Tribunal that the circumstances of each of them were the same as or not materially different from that of the applicant. Certainly, the time at which they could not perform their duties differs, one is about 15 months prior to the relevant time and the second post dates that period by some six to nine months. Mr Hardcastle had a medical certificate certifying that he could access the workplace, rather than a certificate stating what he could not do. It is not known whether Mr Mitchell’s condition was work-related and, in any event, as he did not give evidence, the Tribunal accords less weight to the applicant’s evidence concerning Mr Mitchell.

73 Similarly, in relation to the applicant himself, while there is doubt whether he can be his own comparator (see Varas at [81]), there is little evidence as to the circumstances of his previous injury. The nature of it and the restrictions if any imposed are not known. Certainly, the period concerned, some 2 weeks is significantly shorter than the period involved in this matter.

74 Further, in relation to the final possible comparator, the circumstances are not the same or not materially different.

75 The applicant must prove that a reason for his treatment was his left shoulder injury. In other words, why did the respondent treat the applicant in the way he did? The Tribunal is satisfied that the reason for applicant not being permitted to return to work until 8 February was because of the risk of further injury which would impose liability on the respondent, if it occurred in the workplace. That reason was consistent with the custom and practice of the employer of first developing a RTW plan which had the approval of the applicant’s treating surgeon. Further, until that approval was given, the treating surgeon had provided no guidance as to the duties the applicant could safely perform.

76 Consistent with what was said in Laycock [at 54]

When deciding whether to promote the applicant to the position of Investigations Manager the respondent was permitted to determine whether the applicant could legally, as well as physically, fulfil those duties. Like the respondents in X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177 and Purvis v NSW [2003] HCA 62; (2003) 217 CLR 92, the respondent in this case was clearly obliged to consider his legal responsibilities to the applicant, and to others, if it placed the applicant in a position where he risked his own safety, or that of others, as a result of a condition that was clearly known to the respondent.

77 The Tribunal is not satisfied that the respondent discriminated against the applicant on the ground of his left shoulder injury. The applicant has not proved that the respondent would have treated him less favourably in the same or similar circumstances than a person without a left shoulder injury but unable to perform all his or her duties.

78 The applicant has also claimed that he was indirectly discriminated against by the respondent imposing on him the requirement or condition that he not be permitted to perform any of the duties of a mineworker at the Colliery from 6 November 2007 until 8 February 2008 unless he had total function in his left shoulder. That requirement or condition, the applicant claims, was not reasonable, having regard to the circumstances of the case, as suitable duties, consistent with the restrictions identified in the certificate issued by the applicant’s surgeon, could have been offered by the respondent.

79 In this regard he must establish the following elements:

a)That the respondent required the applicant to comply with the requirement or condition that the applicant not be permitted to perform any of the duties of a mineworker from 6 November 2007 until 8 February 2008 unless he had total function in his left shoulder;

b)the applicant was unable to comply with the requirement;
c)a substantially higher proportion of employees without a left shoulder injury could comply with the requirement; and
the imposition of the requirement was unreasonable.

Submissions

80 The applicant submitted that, while he was unable to perform the full range of duties because of the restrictions imposed by his surgeon, it was his employer who refused him access to any work duties. Further, it was self evident that an uninjured underground fitter could have performed the duties and he relied upon the fact that he had done so, as had Mr Hardcastle.

81 As to the reasonableness of the requirement, the applicant submitted that there was no evidence that it was not possible to make adjustments and indeed, he was permitted to work underground on 8 February 2008 without change to his medical status. The applicant then referred to various actions of managers employed by the respondent and submitted that each was unreasonable.

82 The respondent submitted that there was no evidence that the condition was imposed by the respondent. The respondent submitted that none of the applicant or any of the officers of the respondent, who gave evidence, gave evidence that the condition was imposed. Further, the requirement is not ‘neutral’ and imposed on all employees contrary to the requirement in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185-191 that it be so.

83 Further, the applicant could and did comply with it between 9 February and 27 March 2008. In relation to the requirement that the applicant adduce evidence of the relevant base groups or pools of employees with the disability and employees without the disability who comply with the requirement, he did not do so.

84 The respondent submitted that the Applicant should have adduced evidence of:

a)the numbers of employees with a shoulder injury;
b)the number of employees without a shoulder injury;
c)the number of employees with a shoulder injury who can comply with the requirement in para 8.2.1 of the Points of Claim; and
d)the number of employees without a shoulder injury who can comply with the requirement.

85 First, the respondent referred to Bonella v Wollongong City Council [2001] NSWADT 194 at [93], in which the Tribunal said that "unless there is some compelling reason to the contrary, .. it [is] desirable...to make precise findings as to the proportions of men and women complying or able to comply with the impugned requirement". This means that the base pools should be clear and the numbers certain.

86 The respondent submitted that there is no ‘compelling reason’ why the precise base group was not identified in this case. There is evidence of the total number of employees who work at West Cliff Colliery, so it was open to the applicant to adduce evidence of the relevant base pools.

87 Secondly, the respondent submitted that the applicant must identify those within that base group who do not have the applicant's disability and who could or did comply with the requirement. No evidence was presented to address this point.

88 Thirdly, it was submitted that the applicant must identify those within the group with the applicant's disability who could comply with the requirement.

89 The respondent submitted that no evidence was presented to address this point and that the Tribunal cannot assume that the applicant was the only employee with an injury or even with a shoulder injury. It is possible that there were other employees with the same type of injury who could comply and referred to the evidence of Mr Clifford that such a person existed.

90 The respondent submits that this is not the type of case where it is impossible for the applicant to obtain the relevant evidence. Mr McColl gave evidence that there were other employees with injuries or on return to work plans. Mr Mitchell said it was common for people to be injured doing underground work. This is not a case where the Tribunal should assume that the applicant was the only employee with an injury to his shoulder or employee with restrictions on his capacity to perform full duties.

91 The respondent ultimately submitted that the applicant has failed to adduce any evidence on whether a substantially higher proportion of persons without the applicant's disability complies or are able to comply with the requirement. There is no evidence which would allow the Tribunal to make the comparison required by s 49B(1)(b) of the Act.

Consideration
92 The Tribunal has carefully considered the detailed submissions made in relation to this aspect of the applicant’s claim. Turning to the first element, the Tribunal is of the view that it is able to be inferred from all the evidence, that the respondent effectively imposed the requirement as formulated by the applicant, upon him. It is not necessary for there to have been an express imposition as suggested by the respondent’s submissions. However, as submitted by the respondent, the requirement or condition is not neutral on its face, as it has application only to the applicant.

93 In relation to the second element, the applicant was able to comply with the requirement because he did work as a mineworker after 8 February 2008 until he was declared fully fit by his treating surgeon. He did not work during the period of the complaint, because the employer had not yet developed a RTW plan and did not identify duties he could have performed to accommodate his injuries. As indicated earlier, while the applicant may have wished the respondent to have developed a plan more quickly and indentified duties sooner, it was not obliged to the do the latter and the failure to do so is not evidence of discriminatory conduct as regulated by the AD Act.

94 As to the third element, the following was said in Bonella, a case concerning sex discrimination:

77 In order to make the comparison required by this … element of indirect discrimination, it is necessary to carefully select the base group or pool which is to be used for the purpose of contrasting gender compliance with the requirement or condition. The pool is all of the people to whom the challenged requirement or condition is applied, or is potentially applied. In a sex discrimination case this pool or base group is split into gender groups because the purpose of the exercise is to compare female compliance and male compliance with the challenged requirement or condition. The number of men and women who can comply is then expressed as a percentage of the gender groups in order to enable the comparison to be made. In mathematical terms what is required is a comparison of two fractions. The denominator in each case is the number of persons of each sex to whom the requirement or condition is applied. The numerator is the number of persons who comply, or are able to comply, with the requirement or condition. The fractions, or percentages, are then compared to ascertain whether a substantially higher proportion of members of the opposite sex to the complainant comply, or are able to comply, with the challenged requirement or condition.

95 In the Finance Sector Union Case (1977) 80 FCR 78 at 120, Sackville J identified four general principles for the selection of base groups. These were referred to by Bonella in the following terms:

The base groups appropriate to particular cases will vary, according to the context;
The selection of the base group should be calculated to reveal the significance if any, of sex to compliance;
The decision to select a particular base group involves a mixed question of fact and law; and
The court on an application for review does not make its own assessment of the base groups, but considers whether the group chosen is too broad or too narrow, by a process akin to determining whether relevant considerations were taken into account or relevant considerations were not taken into account.

96 The Tribunal accepts the applicant’s submission that it is not always necessary to have complex mathematical formulae to demonstrate the members of the group. However, it accepts the detailed submissions of the respondent that the evidence put forward by the applicant is not sufficient to establish the necessary element.

97 From the evidence before the Tribunal, it was clear that there had been a number of employees with various injuries over a period of time (the exact periods were not often specified and nor were the precise nature of the injuries, any medical restrictions which had been determined and whether they were work related or not). While again the evidence was not precise, there was evidence that work of different types were available to some of them in some circumstances. Thus, it was not impossible for a pool to be identified and numbers determined. This was not done by the applicant. The Tribunal is unable to accept that his situation and that of Mr Hardcastle satisfies this element of indirect discrimination.

98 We now turn to consider the final element that the impugned requirement or condition is not reasonable.

99 The Tribunal agrees with the applicant that the relevant principles are as set out in Catholic Education Office v Clarke (2004) 138 FCR 121 per Sackville and Stone JJ at [115] as follows:

i)The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances;

ii)The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable;

iii)The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case;

iv)The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition. However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.

100 The Tribunal accepts the submissions of the respondent that this element requires an assessment of the reasonableness of the requirement not the conduct of either party. The assessment is not whether the applicant or respondent acted reasonably. (Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 87 (Sheppard J); Australian Medical Council v Wilson (1996) 68 FCR 46, 61 (Heerey J); Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 112 (Sackville J).)

101 In Waters v Public Transport Corporation (1991) 173 CLR 349 at 378, Brennan J said:

It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory... or that is as discriminatory as the requirement or condition imposed These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

102 In Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408 at 429 - 431 Wilcox J said that first, it is necessary to ‘ascertain the reasons underlying a Respondent's insistence upon the relevant requirement or condition’ and then ask ‘whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified.’

103 The onus is on the applicant to establish that the condition was not reasonable. As indicated earlier, the Tribunal is satisfied that the Colliery treated the applicant as it did because of the risks associated with re-injury. The applicant could not perform all his pre-injury duties, and those duties could include lifting and overhead work in contravention of the conditions imposed by his treating surgeon. Thus, the condition or requirement as set out by the applicant was insisted upon because of concern about those risks. That concern is objectively justified on the basis of the conditions imposed by his treating surgeon, the nature of the workplace and the various statutory obligations imposed on the respondent, in particular Coal Mines Health and Safety Act 2002 (NSW): ss 20, 21, 22, 59, 66, 67 and 69, Coal Mines Health and Safety Regulations 2006 (NSW): cls 13 and 148, Occupational Health and Safety Act 2000 (NSW): s 8 and Occupational Health and Safety Regulation 2001 (NSW): cls 5, 11, 17.

104 Among other matters, these provisions require the mine to have a health and safety management system (ss 21 and 22 Coal Mines Health and Safety Act) and require a fitness for work program for all employees (reg 148 Coal Mines Health and Safety Regulations).

105 It is not for this Tribunal to decide whether the actions of the respondent in this regard were correct or to enter into the issue of its operational decisions (see State of Victoria v Schou (2001) 3 VR 655 at 660 [30-31]. Thus, the process by which the RTW plans were developed and the content of those plans are not matters which are relevant to the objective reasonableness of the requirement or condition. Those matters relate to the conduct of the respondent and its officers.

106 The Tribunal has taken into account that the effect of the imposition of the condition was that the applicant was not able to earn a wage during that period. The Tribunal agrees that the fact that the applicant returned to work on 8 February without any change in his medical status, suggests that work was available. However, the existence of such duties does not of itself establish that the requirement was unreasonable. Further, the applicant’s submissions rely on the contention that suitable work opportunities were available and the failure to provide them is an act of indirect discrimination. For the reasons given earlier, the AD Act does not require an employer to alter the duties of an employee to accommodate a disability.

107 The Tribunal is satisfied that the requirement was not unreasonable and, it follows, that the Tribunal is not satisfied that the applicant was indirectly discriminated against on the grounds of his disability.

108 Given our findings above, it is unnecessary to consider whether the section 54 of the AD Act applies.

109 The Tribunal dismisses the complaints.

Costs

110 The respondent submitted that it seeks to be heard on the issue of costs. The Tribunal directs that the respondent should provide written submissions in support of an application for costs to the Registry within 28 days of the date of this decision, with a copy provided to the applicant. The applicant should make any submissions in response within 28 days of receipt of the respondent’s written submissions. Unless an application is made that the application be determined following a hearing, and that application is successful, then a decision will be made on the basis of the written submissions as filed.

Minority decision in relation to Mr McLachlan’s indirect discrimination claim
From Non Judicial Member A Lowe

1 I agree that Mr McLachlan’s (Mr McLachlan’s) claim of indirect disability discrimination should be dismissed, but not for the reasons given in the majority decision.

2 The problem with the applicant’s indirect discrimination claim is the manner in which he has cast the requirement. The requirement has not been cast as a neutral requirement. By adding the specific dates “from 6 November 2007 to 8 February 2008”, the applicant has removed the neutrality of the requirement and the fact that it needs to be one with which the entire group to which it is directed must comply - see for example, Director General, Department of Education & Training v FP and FQ on behalf of FR [2003] NSWADTAP 51 at [40], citing Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185-191 (per Dawson J). The requirement as framed by the applicant applied and could only ever apply to him alone. This means that Mr McLachlan’s indirect discrimination claim must fail at this point.

3 This is unfortunate because had the requirement been framed along the (admittedly rather wordy lines) of “the respondent did not permit injured workers whose injuries require some restriction to their normal duties to return to work in any of their usual duties earlier than 12 weeks before the date at which the relevant injured worker was anticipated to be fully fit, unless they were fully fit before the start of the 12 week period”, my decision would have been different.

4 The evidence given by each of the respondent’s witnesses shows that the respondent treated all those with long-term injuries whose medical certificate restricted their usual duties in the same manner. It imposed a requirement that they follow an agreed 12 week (and no longer) return to work plan. This was the industry standard, the standard that Mr McColl complied with in November 2007 in drawing up the first return to work plan, the standard that the respondent asked the external provider, Mr Lum, to comply with and the standard that Mr Clifford agreed he allowed to be varied by one week only (in Mr McLachlan’s favour) because it was near enough to the original 12 week standard.

5 In my view, this evidence demonstrates that the respondent was never going to allow Mr McLachlan to return to any of his normal duties earlier than the start of the 12 week point (ie. early February). Significantly, the first return to work plan drawn up in late November by Mr McColl did not have a late November, an early December or even a January start date but instead had an early February start date. The important date for the respondent was the ‘end date’ on Mr McLachlan’s medical certificate. It was this that was used to calculate the start date of the return to work plan. As far as the respondent was concerned, the start date had to be no earlier than 12 weeks before the end date on Mr McLachlan’s medical certificate.

6 I should also say that I do not agree that the requirement, even as framed by Mr McLachlan, is one the applicant can comply with. Mr McLachlan framed the requirement as including the need to have a fully functioning shoulder during the period 6 November 2007 to 8 February 2008. Mr McLachlan did not have a fully functioning shoulder at this point, so he could not comply with the requirement. The same reasoning would apply had the requirement been framed along the lines of the manner I suggested in paragraph 3 above – that is, Mr McLachlan was not fully fit at the pre 12 week point so he could not have complied with that requirement either.

7 Following on from my reasoning in the paragraph immediately above, I would have taken on judicial notice that it is self evident that the requirement, as framed by Mr McLachlan, was one that a substantially higher proportion of those with a left shoulder injury could not comply with compared with those without such an injury/disability. There is no need for Mr McLachlan to provide specific evidence of actual numbers of the base group and those not in the base group. Similarly, had the requirement been framed along the lines of the manner I suggested in paragraph 3 above, I would have taken on judicial notice that it is self evident that a substantially higher proportion of those with an injury requiring restricted duties for longer than 12 weeks could not comply with the requirement compared with those without such an injury/disability.

8 Of perhaps more significance, though, is my view on the question of the “non reasonableness” of the respondent’s requirement, having regard to the circumstances of the case.

9 In actual effect, the outcome of the manner Mr McLachlan framed the requirement and the outcome of the manner in which I have suggested the requirement could have been framed is the same – in that, Mr McLachlan was prevented from returning to any of his normal duties any earlier than early February, despite the fact that his medical certificate contained exactly the same restrictions from 9 November 2007 to 1 May 2008.

10 This means that the question of the non reasonableness or otherwise of the respondent’s requirement is much the same whether the requirement is cast as Mr McLachlan has cast it, or whether it is cast as I suggested in paragraph 3 above.

11 I am more convinced by Mr McLachlan’s submissions than the respondent’s submissions in relation to the question of non reasonableness. That is why it is my view that had Mr McLachlan framed the requirement neutrally with the capacity to apply to more than him alone the decision about his claim could have been different.

12 In my view, the fact that the respondent allowed Mr McLachlan to return to many of his usual duties in early February removes any defence for the respondent that it was unsafe for him to return to those same duties in November, December or January. The respondent spent a lot of time giving us evidence about the potential occupational health and safety problems in having Mr McLachlan return to any of his usual duties. However, I agree with the applicant’s submissions in relation to this ‘defence’. Mr McLachlan’s medical certificate contained exactly the same list of restrictions from early November to early May. Either he was safe to return to those duties with these restrictions or he was not. While the respondent had every right to insist on further medical information and/or medical checks to accurately determine the issue of safety, they could have insisted on this (by, for example, sending him to the external provider, Mr Lum) when he first presented his early November medical certificate to them and therefore potentially had him back to many of his normal duties much earlier. They did not. Instead, Mr McColl drew up a restrictive return to work plan without any reference to further medical or safety checks and without any discussion with Mr McLachlan about his normal duties, the effect of his injury on those duties or the effect of the restrictions in his medical certificate on those duties. But, perhaps more significantly, Mr McColl’s November return to work plan was the standard 12 weeks in length and timed to start from early February, not from late November, December or January.

13 In my view, all the evidence demonstrates that the real reason the respondent did not allow Mr McLachlan to return to any of his normal duties any earlier than early February was their application of the 12 week rule as outlined in paragraph 4 above. Congruent with this, the suggestion that the delays in drawing up a mutually agreed work plan were what led to Mr McLachlan not being able to return to any of his normal duties before early February, is, in my view irrelevant to any discussion of non reasonableness or otherwise of the respondent’s real requirement.

14 I agree with the respondent’s submissions that an employer does not have to provide an injured employee with restricted duties. But, in my view this point is irrelevant to Mr McLachlan’s indirect discrimination claim. This respondent had a return to work standard of developing a return to work plan that it applied neutrally. Once an employer has such a standard, in my view, any requirement they attach to it that disadvantages substantially more people with a particular type of disability than those without that type of disability that is “not reasonable having regard to the circumstances of the case” is unlawful under s49B(1)(b) of the Anti-Discrimination Act.

15 So, the question to be decided (had the requirement been framed along the lines of paragraph 4 above) would have been whether the respondent’s requirement in relation to return to work plans that they last no longer than 12 weeks is not reasonable in the circumstances of Mr McLachlan’s case, given that, in his case, the medical restrictions on his certificate were completely static (ie. exactly the same) from early November to early May.

16 There were only two other reasons given by the respondent for the imposition of the 12 week rule on Mr McLachlan (other than occupational health and safety – which I dealt with at paragraph 12 above). These were first, that it was the industry standard and, secondly, (given by Mr McColl alone), that experience had shown that, in the past, employees on restricted duties for longer than 12 weeks got “too comfortable” with doing restricted duties and were then hard to shift back to their full range of normal duties.

17Taking each of these in turn – the industry standard is not a statutory standard. In my view, the fact that it is an industry standard does not automatically make it reasonable having regard to Mr McLachlan’s situation. The respondent gave us no rationale for the industry standard of 12 weeks, let alone any rationale for the need to apply it to Mr McLachlan. For example, they gave us no evidence that having Mr McLachlan on restricted duties for longer than 12 weeks would have been too costly or too unproductive.

18In relation to Mr McColl’s reason that, in the past, injured employees had got too comfortable in their restricted duties, no specific evidence was given to the Tribunal of the percentage of injured employees this had happened to or what real impact this had had on the respondent. But, perhaps more importantly, the respondent did not specifically assess Mr McLachlan against this possibility. In my view, Mr McLachlan while anxious to return to as many of his normal duties as possible, as soon as possible, also presented as a worker very keen to ensure he made a full recovery. He had clearly gone to great lengths to ensure he got the very best treatment for his shoulder and that he had carefully followed every piece of medical/therapeutic guidance given to him so as to ensure a full and lasting recovery. His evidence demonstrated to me that he would not engage in any duties that would impact on the speed or effectiveness of his recovery, but that once cleared by his treating specialist as fit for full duties, he would take up full duties.

19 I acknowledge that it is Mr McLachlan who bears the onus of proof, and therefore it is not the respondent who has to demonstrate that their requirement is lawful. However, I am unable to find anything that would have made it not reasonable having regard to the circumstances for the respondent to return Mr McLachlan to restricted duties earlier than the 12 week point. Yet by not allowing Mr McLachlan to return any earlier than this he clearly suffered the detriment of not being able to work.

20In my view, having regard to the circumstances of the case, imposing the 12 week rule on Mr McLachlan was not reasonable.

21Of course, it is possible that had the requirement been framed along the lines suggested in paragraph 3 above, the evidence presented by the applicant and/or the respondent might have been slightly different thus leading me to a different conclusion on the question of non reasonableness. However, it is hard to imagine what evidence might have been presented that would have convinced me otherwise, given the static nature of Mr McLachlan’s medical restrictions. Two to three additional months of restricted duties work by Mr McLachlan would not seem to me to have placed an unreasonable burden on the respondent when contrasted with the effect on Mr McLachlan of two to three additional months of not being able to work.