Nesci v TAFE Commission of NSW (No 2)

[2005] NSWADT 183

CITATION:	Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Salvatore Nesci RESPONDENT TAFE Commission of NSW
FILE NUMBER:	031105
HEARING DATES:	6-7/12/2004, 15/02/2005, 21/03/2005
SUBMISSIONS CLOSED:	03/21/2005
DATE OF DECISION:	08/08/2005
BEFORE:	Britton A - Judicial Member; Weule B - Non Judicial Member; Lowe A - Non Judicial Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Trade Practices Act 1974 (Cth)
CASES CITED:	Bonella & ors v Wollongong City Council [2001] NSWADT 194 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Commonwealth of Australia v The Human Rights and Equal Opportunity Commission (Dopling No 1) (1993) 119 ALR 133 Hall v Sheiban (1985) ALR 503 Higginson v Cargill Australia Limited [2001] NSWADT 152 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 Munce v Vinidex [1974] 2 NSWLR 235 Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 Sellars v Adelaide Petroleum NL (Poseidon) (1994) 179 CLR 332 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 The Commonwealth v. Amann Aviation Pty. Ltd. (1991) 174 CLR 64
REPRESENTATION:	APPLICANT B Nesci, solicitor RESPONDENT C Ronalds, barrister
ORDERS:	1. That part of the complaint, as it relates to the requirement that the Applicant attend a medical examination, is dismissed; 2. That part of the complaint as it relates to the Offer of Voluntary Redundancy is substantiated; 3. Within 28 days of the date of this order, the Respondent is to pay to the Applicant the sum of $16,075 as damages for economic loss; 4. Within 28 days of the date of this order, the Respondent is to pay to the Applicant the sum of $3,500 as damages for non-economic loss.

1 Salvatore Nesci, the Applicant in these proceedings was employed as a teacher at the St George College of TAFE until January 2001 when he accepted an offer of redundancy. Subsequently, he lodged two complaints with the Anti-Discrimination Board alleging that his employer had discriminated against him on the grounds of disability. The first of those complaints has been settled and is not the subject of these proceedings. On 20 August 2003, the President of the Board referred the second complaint (lodged with the Board on 20 March 2001) to the Administrative Decisions Tribunal. That complaint is the subject of this decision.

2 Mr Nesci claims that TAFE discriminated against him on the ground of disability by, first, making an offer of redundancy that was less favourable than that offered to his colleagues and, second, by requiring that he submit to a medical examination before he could return to work.

Background

3 Mr Nesci commenced employment with the Respondent in April 1987. From 1995 he was employed as a language teacher at St George College of TAFE which is part of the Southern Sydney Institute (SSI).

4 In 1993, Mr Nesci was diagnosed as suffering from Hepatitis C. He was absent from work for medical reasons during Terms 2 and 3 of 1995. He returned to work on a part-time basis, two days per week in Term 4 of 1995. He continued to work on a part-time basis with various combinations of leave until he accepted a voluntary redundancy in early 2001.

5 In May 1999, the SSI sought advice from the Government Medical Officer about Mr Nesci’s fitness to work. In a report dated 8 June 1999, HealthQuest stated that Mr Nesci’s main problem, as it related to his fitness for work, was fatigue and that, while there were times where he could teach for extended periods, “in general he loses concentration and becomes irritable after about two hours, and on some days feels too unwell to even rise from bed.” HealthQuest recommended that “ideally Mr Nesci would be placed in casual work where he can work a full day if he feels well, or remain at home if he is excessively fatigued”. It concluded that he was able to teach for up to two hours and would then require a thirty-minute break. HealthQuest went on to suggest that if he could be transferred to a position closer to home the reduced travelling time would lessen his fatigue and improve his performance.

6 The SSI considered these recommendations and on 28 October 1999 advised Mr Nesci that they could not be implemented.

7 In late 1999, the Commonwealth Rehabilitation Service (CRS), at the request of the SSI, conducted a workplace assessment to identify work options for Mr Nesci. In a report dated 13 December 1999, CRS recommended that he be offered flexible working hours and the opportunity to work at home. Alternatively, it recommended that he not be required to travel more than 15 minutes per day. That report was provided to Mr Nesci about 12 months later.

8 These recommendations were not implemented.

9 In January 2000, after receiving additional material from Mr Nesci and the Respondent, Healthquest prepared a further report. It concluded:

"Mr Nesci suffers from several medical conditions that require ongoing therapy and close monitoring by his doctors. He experiences fatigue and joint pains and he is unfit for any useful regular full-time work. If he were to continue teaching, he would require restricted hours in the long term."

10 Retraining /Redeployment explored Mr Nesci contacted Mr John Agnew, Manager of College Services, St George College in mid-1999 and asked whether the recommendations of the first HealthQuest report would be adopted. According to Mr Nesci, Mr Agnew promised that he would get back to him promptly, but did not. This is denied.

11 In about October 1999, Mr Nesci contacted Mr Gary Miller, SSI’s Human Resources Manager, and was told it had been decided not to adopt HealthQuest’s recommendations “because they are too difficult to implement”. Mr Miller does not dispute that he told Mr Nesci that it had been decided not to implement the Healthquest recommendation, he denies using those words.

12 Shortly after this, at the invitation of Mr Miller, Mr Nesci sent in his resume so that Mr Miller could assist him find alternative employment within TAFE. Mr Nesci emphasised his broad experience in the areas of counselling, multi-cultural education and course development and urged Mr Miller to explore employment in those areas. In addition, Mr Nesci told Mr Miller of his interest in working with the Open Training and Education Network (OTEN).

13 In November 1999, Mr Miller contacted Ray Seary, Head of the SSI’s Business Development Unit and Wendy Whittaker, OTEN’s HR Manager, and asked whether there were any opportunities in their respective areas for Mr Nesci.

14 In November of that year, Mr Nesci again contacted Mr Miller and asked whether he had identified any suitable work for him. Mr Miller told him that he had not but indicated that retraining was a possibility and invited him to submit a proposal.

15 In early December 1999, Mr Nesci sent a submission to Mr Miller proposing that he undertake a graduate certificate in multi-media and on-line training through Charles Sturt University. That proposal was rejected.

16 According to Mr Nesci, by the end of 1999 he had concluded that there was little hope of any work being organised for the first term of 2000 and therefore he had no option but to take leave without pay, as all his paid leave had been exhausted. Mr Nesci said that when he contacted his supervisor, Argie Kouras, to apply for leave she said that she found it hard to believe that no work could be found for him and that Mr Miller had not contacted her about his case.

17 In February 2000, Ms Whittaker contacted Mr Miller and advised that there might be some work for Mr Nesci at OTEN and “we are willing to be flexible about his hours.” At the suggestion of Ms Whittaker, Mr Nesci contacted Lorraine Eagles, the head teacher at OTEN, to discuss the proposal.

18 About a week later Mr Miller advised Mr Nesci that the SSI was unable to fund any work at OTEN and suggested that he speak to Jan Smallwood about possible work at the St George campus in the counselling unit. According to Mr Nesci, Ms Smallwood said she was keen for him to assist in the counselling unit.

19 About two months later, not having heard from Mr Miller, Mr Nesci attempted to contact him again and was advised he had returned to his previous position at Bankstown TAFE. He then contacted Ms Di Roberts, Mr Miller’s replacement, and was told there was no funding available for his proposed work at OTEN or the counselling unit.

20 In May 2000, Mr Nesci contacted his then Head of Studies, Dick Stodart, and asked for his assistance to find work, claiming that HR had given him the “run around”. Six weeks later Mr Nesci wrote to Mr Stodart expressing his disappointment that he had not got back to him despite having promised to do so.

21 In October 2000, Mr Nesci again contacted Mr Miller, who by then had returned to his original position, and again raised the possibility of retraining. Two weeks later Mr Nesci emailed Mr Miller and pressed for a reply. He also asked whether as a “final resort are any further redundancies being offered?”

22 Mr Miller replied that he had been unable to identify any suitable part-time work and that a voluntary redundancy was “unlikely due to the fact that your position is in a teaching area of high demand”.

23 On 20 November 2000, Mr Miller advised Mr Nesci that his resubmitted retraining proposal had not been approved as his health restricted him to “part-time employment of a largely sedentary nature”. The following day Mr Nesci emailed Mr Miller stating that he was “bewildered” that his proposal had been rejected on the grounds of his health and pointed out that the proposed course was part-time and on-line: “[T]his has all been explained to you in discussions and correspondence. Pardon my ignorance but I can’t think of anything more sedentary than sitting in front of a computer.”

24 Complaint to the Minister On 18 November 2000, Mr Nesci wrote to the SSI director, Kimble Fillingham, complaining of the “unprofessional and distressing treatment” he had received from Mr Miller. He alleged that Mr Miller had obfuscated and failed to take reasonable steps to assist him find alternative employment within TAFE. He asserted that this treatment was not in accord with TAFE’s Reasonable Adjustment policy and advised that he would be sending an edited version of the letter to the Minister for Education, which he did.

25 Shortly after receiving that complaint, Mr Killingham appointed Graham Kretchmer to investigate Mr Nesci’s allegations. After reviewing the file, Mr Kretchmer concluded that reasonable steps had been taken to find alternative work for Mr Nesci.

26 Return to work On 2 December 2000, Mr Nesci wrote to his supervisor, Ms Kouros, requesting that he be permitted to return to work from the start of Term 1 the following year on a “half time basis” and enclosed a report from his treating doctor, Dr Charles Ovadia. Dr Ovadia stated that his patient’s condition, namely advanced liver disease and widespread arthritis, had stabilised over the past six months and he was capable of returning to part-time work. Dr Ovadia went on to recommend that because of the chronic nature of Mr Nesci’s condition he should avoid duties that were physically demanding: “Ideally he would be best suited to duties that can be mainly carried out sitting down or that duties be flexible so as to allow for rest periods as needed.”

27 The following day Mr Nesci wrote to Mr Miller and advised that he intended to return to work the following year and that this was supported by his supervisors. He asked Mr Miller to advise without delay if he had any objections.

28 On 11 December 2000, Mr Miller asked Mr Stodart about the feasibility of Mr Nesci’s proposed return to work in light of Dr Ovadia’s advice. Mr Stodart advised that given the medical restrictions, teaching would not be a viable option and that the best option would be for him to work in the adult learning centre which had the advantage of being able to offer flexible work for shorter periods. Mr Stodart stated that he had some concerns with that proposal as it would increase the workload of other teachers.

29 By letter dated 21 December 2000, Mr Killingham advised Mr Nesci that he had requested Mr Kretchmer to review the option of his return to work at St George College on suitable duties from 29 January 2001 “consistent with your current health condition”. He went on to state that to assist in that regard he would be referred to HealthQuest in the new year for “advice on your fitness to continue”. The letter went on to advise that his retraining proposal had been rejected and invited him to contact Mr Kretchmer if he was still interested in a VR.

30 The proposed medical review did not take place.

31 Offer of Voluntary Redundancy In December 1999, Mr Miller asked SSI’s Acting Director, Strategic Operations, Bernie Craig, whether it would be possible to offer the applicant a VR and was told it was not. As noted, in November 2000 Mr Nesci asked Mr Miller whether, as “a last resort”, a VR might be available.

32 On 9 January 2001, Mr Nesci contacted Mr Kretchmer and advised that he was concerned that the proposed HealthQuest assessment would not be completed before the start of the teaching year. During that conversation, Mr Kretchmer confirmed that a VR would be offered. Mr Nesci asked whether it would be possible to defer accepting the VR until he had an opportunity to see whether his proposed return to work was successful. He was told it was not. It was agreed that the HealthQuest referral would be put on hold until Mr Nesci had an opportunity to further consider the VR.

33 According to Mr Nesci, he asked Mr Kretchmer whether he would lose his job if he did not accept the VR to which he had replied, “We will always try and help you but if your health prevents you from returning to your job, we can’t allow you to remain on indefinite leave.”

34 By letter dated 10 January 2001, Acting Director, SSI, Ian Fraser, invited Mr Nesci to indicate before 25 January 2001 whether he was interested in applying for a voluntary redundancy. Mr Nesci wrote to Mr Kretchmer the following day and stated that he was interested in applying for a voluntary redundancy.

35 Two days after the letter of offer was issued to Mr Nesci, Mr Kretchmer wrote to all teachers at the SSI (other than Mr Nesci) inviting them to apply for a VR. The letter sent to Mr Nesci’s colleagues differed from that sent to him in that it stated that “all full time teachers in your classification above and at St George College are offered the option of:

a) retraining

b) relocation to another College of Institute (subject to available vacancies)

c) voluntary redundancy

36 The letter of offer to Mr Nesci did not offer the first of these two options namely, retraining and relocation.

37 In a statement tendered in these proceedings, Mr Kretchmer stated that Mr Nesci’s offer was worded differently to that made to his colleagues as “he had already been informed of all possibilities regarding transfers, secondments and training”.

38 By letter dated 25 January 2001, a formal offer of VR was made to Mr Nesci. He was the sole employee to volunteer for VR. The VR was made effective on 14 February 2001.

Relevant Legislative provisions

Disability Discrimination

39 Mr Nesci’s claim is cast as one of direct discrimination on the ground of disability. The test of what constitutes discrimination on the grounds of disability is set out in s 49B(1)(a) of the Anti-Discrimination Act 1977 (the Act):

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

40 Section 49B(4) provides that a reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

41 Section 49 D (2) makes it 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.

42 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

Claim 1: Voluntary Redundancy Offer

43 To succeed in his complaint Mr Nesci must establish, on the balance of probabilities, the following elements:

First, that he had a disability;

Second, that the respondent denied or limited his access to a benefit associated with employment (s 49D(2)(b)) and/or that he was subjected to a detriment (s 49D(2)(d));

Third, if so, that a person without his disability was, or would have been treated more favourably in the same or similar circumstances.

Fourth, that one of the reasons for any less favourable treatment was his disability.

44 As the Respondent points out, the Amended Points of Claim do not particularise the nature, quality or extent of Mr Nesci’s disability. In oral submissions, Mr Nesci’s solicitor, Mr B Nesci advised that he relied on sub-paragraph (a) of the definition of ‘disability’ as set out in s 4 of the Act i.e. “total or partial loss of a person's bodily or mental functions or of a part of a person's body”.

45 In the five years before Mr Nesci had been made redundant, he had been diagnosed on a number of occasions as suffering from various chronic and acute medical conditions. In 1993, a diagnosis of Hepatitis C was confirmed. That diagnosis was confirmed in 1999 by a Government Medical Officer. In December 2000, Mr Nesci’s treating doctor certified that he suffered from advanced liver disease and widespread arthritis.

46 The evidence makes it abundantly clear that in the period in dispute, namely late 2000 to early 2001, Mr Nesci suffered from a number of chronic medical conditions which included liver disease and arthritis. Those conditions, in our view, fall squarely within sub-paragraph (a) of the definition of ‘disability’ as set out in s 4 of the Act.

(ii) Denial of benefit /subject to detriment

47 Mr Nesci contends that by failing to offer him the options of redeployment or retraining in the January 2001 VR round and by not informing him that he might have been eligible to access those and other benefits, the Respondent denied him access to a benefit or benefits associated with employment and, in addition, subjected him to a detriment.

48 The Respondent admits that the wording of the offer sent to Mr Nesci differed from that sent to his colleagues. It argues that this was because the opportunities extended to Mr Nesci’s colleagues (namely retraining and relocation) had already been offered to and discussed with him on numerous occasions. Accordingly, the Respondent contends that Mr Nesci was neither denied a benefit nor subjected to a detriment.

49 A determination of this issue requires us to examine what was offered to Mr Nesci and his colleagues.

50 Benefits offered to Mr Nesci’s colleagues To identify the benefits offered to Mr Nesci’s colleagues it is first necessary to examine what Mr Nesci asserts to be the “special benefits” unlocked by an offer of a VR. Memorandum No. 96-5 is relevant to this issue.

51 Headed “Managing Displaced Persons”, Memorandum No. 96-5 (‘Memo 96-5’) sets out the arrangements that apply to “managing displaced persons in all public sector organisations”. It defines a “displaced employee” as a person “whose position/job no longer exists due to a restructure or other administrative decision”.

52 Memo 96-5 details the arrangements that apply where an employee is displaced or redeployed and provides that displaced employees may be placed in any suitable vacancy without advertising [emphasis added]. It states that displaced employees who are considered “excess” to requirements will be considered for advertised vacancies before other applicants, and selection will only be on merit where more than one displaced employee applies for the same vacancy. The onus falls on the selecting organisation to show why the excess employee cannot:

Meet the essential criteria for the position/job; and/or

Perform in the position or, be able to do so within a reasonable period of time, given access to appropriate training.

53 Messrs Miller and Kretchmer explained in evidence that once an employee received an offer of VR but before the offer was accepted or rejected, they are considered to be a “potentially displaced employee”. As a consequence they receive the same “priority consideration” for any vacancy as a displaced employee (see above).

54 In addition, they stated that a potentially displaced person was also eligible to apply for a “VR swap” that is to swap their position with that of another potentially displaced person who wished to be made redundant.

55 It is argued for the Respondent that Memo 96-5 is irrelevant to a determination of what benefits were offered to Mr Nesci’s colleagues as it relates exclusively to benefits that arise after a VR is accepted.

56 We accept that Memo 96-5, to the extent it can be understood, is of limited relevance to these proceedings. As the Respondent correctly points out, its focus, in relation to VR, is on the assistance available once the offer of redundancy has been accepted, namely assessment, counselling and training. However, in our view it is helpful as it places in context the evidence of Messrs Miller and Kretchmer, both senior and experienced public servants, about the benefits available to potentially displaced persons.

57 Relocation Mr Nesci’s colleagues were offered the option of “relocation to another College or Institute (subject to available vacancies)”. Their letter of offer went on to state that “staff wishing to seek relocation will have their particulars forward [sic] to the relevant Institute Human Resources Manager for consideration if a vacancy exists”.

58 The evidence of Mr Kretchmer and Carmel Mackin, a teacher offered a VR in the January 2001 round, is instructive concerning what was meant by the term ‘relocation’ in the context of the letter of offer to Mr Nesci’s colleagues. When approached by Ms Mackin about the possibility of relocation, Mr Kretchmer informed her that if she could find a teacher from another Institute who was interested in a redundancy, the SSI would fund that employee to be made redundant and she could transfer into their position.

59 This evidence indicates that the relocation option embraced a VR swap. However, it is less clear if it also embraced “priority consideration” for vacant positions. From the letter itself it is not possible to say.

60 Priority consideration might not have been mentioned in the letters of offer but the evidence of the Respondent’s witnesses indicates that as potentially displaced employees, Mr Nesci and his colleagues were eligible for such consideration, provided, of course, a vacancy was available.

61 The Respondent contends that it is not open to Mr Nesci to bolster his claim by relying on alleged benefits he missed out that were not mentioned in the letters of offer to his colleagues. Such benefits, it is argued, were not referred to in the initiating complaint to the Board and, accordingly, are outside the scope of the complaint before the Tribunal.

62 We disagree with this characterisation of the parameters of the initiating complaint. While it focused primarily on the difference between the letters of offer, in our view, it is also capable of being read as a complaint about the failure of the Respondent to inform Mr Nesci about retraining and redeployment options at large once the offer of redundancy was made (see Mr Nesci’s letter to the Board dated 12 March 2001, page 2, point 5).

63 Retraining The Respondent’s letter to Mr Nesci’s colleagues offered them the option of retraining. It stated that if they wished to take up that option they would need to meet with the SSI HR Manager to “determine the viability of this option”. The wording of the letter is consistent with the evidence given by the Respondent’s witnesses that this option merely extended an invitation to submit a retraining proposal but did not guarantee that the proposal would be approved.

64 Mr Miller claimed that the Respondent did not have a discrete budget for this retraining but conceded in cross-examination that assistance might be provided. In a memo to Ms Miller dated 6 December 1999, Ms Roberts recommended that Mr Nesci’s retraining proposal not be supported as the estimated costs were substantial and there was no guarantee that the SSI would benefit. She stated that as Mr Nesci was “not a redeployed (or potentially redeployed) officer he would not normally qualify for assistance under SSI’s retraining opportunity”.

65 Summary Mr Nesci’s colleagues were offered the options of relocating, which could be organised by way of a VR swap, or of submitting a retraining proposal to the SSI. In addition, as potentially displaced employees, they were eligible to apply for priority consideration if a vacancy came up.

66 Findings and conclusions The key issue to be determined is whether the offer to Mr Nesci was different in substance, as opposed to form, from that made to his colleagues. If the answer to this is no, it follows that his claim that he was denied a benefit or subjected to a detriment must fail.

67 The Respondent argues that it is disingenuous of Mr Nesci to suggest that he was not told about relocation or retraining. It points to his discussions with Mr Miller over an extended period. In the context of the VR round, it asserts, it had been open to him to raise either option with Mr Kretchmer with whom he had been in close contact at the time the VR offer was made. It further points out that when Mr Nesci learned of the possibility of a VR swap through Ms Mackin, he took no steps to follow this up.

68 In our view, this argument misses the point. The evidence makes it clear that when the offer of VR was made, Mr Nesci was not told it was open to him to explore, or to continue to explore, relocation or retraining. It cannot now be claimed that he should have deduced from what Ms Mackin had told him that a VR swap would have been available to him. Nor do we think it is reasonable to suggest that, because he had been in contact with Mr Kretchmer immediately before the VR offer, he should have known that, had he asked, he would have been told about the additional options. There is not a scintilla of evidence to suggest that Mr Kretchmer volunteered this information.

69 The parties disagree on the extent to which the Respondent attempted to assist Mr Nesci to explore relocation or retraining before January 2001. The Respondent claims that all options had been exhausted. Mr Nesci claims that the Respondent’s efforts to find alternative employment for him were, at best, cursory and that his proposal to undertake further studies at Charles Sturt University was not given proper consideration.

70 Whether the efforts made by the Respondent were reasonable in all the circumstances is a matter about which minds might differ. However, that is not the issue here. Unless it can be said that all real relocation and retraining options were explored before January 2001, it must follow that Mr Nesci was denied a benefit associated with employment.

71 In 1999, following discussions between Mr Nesci and Mr Miller, consideration was given by the Respondent both to retraining and redeploying Mr Nesci, without success. A further possibility of employment at OTEN was considered early in 2000 but this fell through due to lack of funds. From time to time throughout 2000 further efforts were made to find a suitable situation for Mr Nesci, the most promising of which appeared, in late 2000, to have been for him to work in the Adult Learning Centre which, in Mr Stodart’s opinion, would have allowed him to work more flexibly and for shorter periods than elsewhere within the organisation.

72 On the evidence before us we are not satisfied that an exhaustive survey of possible options was undertaken.

73 Retraining The Respondent contends that Mr Nesci’s colleagues were offered nothing more than what had been offered to him before January 2001, that is an invitation to put forward a retraining proposal which might or might not be accepted. While Mr Miller was at pains to stress that there were no special funds available for retraining potentially displaced persons, the evidence would indicate that the Respondent might be more favourably disposed to fund retraining for this class of employee. This is consistent with Ms Roberts’ memo which indicated that financial assistance might be available to a potentially displaced person.

74 It is, of course, impossible to know whether, if Mr Nesci had resubmitted his original training proposal in January 2001, or made a fresh one, it would have been accepted. The fact is that he was not expressly invited to do so. The inescapable conclusion, in our view, is that by not offering Mr Nesci that option, the Respondent denied him a benefit associated with employment.

75 Summary The option of applying for relocation and/or retraining constitutes a benefit associated with employment. We are not satisfied that the Respondent had conducted an exhaustive survey of all training and redeployment options before January 2001. Nor was Mr Nesci offered those benefits triggered by an offer of VR, namely a VR swap and priority consideration.

76 Accordingly, it seems to us that the facts of this case are capable of falling within s 49D(2)(b). In our view the Respondent’s conduct also constitutes a detriment for the purpose of s 49D(2)(d) of the Act.

(iii) Less favourable treatment

77 The comparator Mr Nesci nominates as his comparator former colleague John Bailey, though he argues it would have been open to him to select any one of the teachers of the SSI who were offered VR.

78 Relying on the High Court’s decision in Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133, the Respondent contends that Mr Bailey is not a valid comparator as, unlike Mr Nesci, he had not exhausted all leave entitlements and had not had extensive discussions with the Respondent in relation to retraining and relocation.

79 In Purvis, the High Court considered an appeal from a decision by the Full Court of the Federal Court. That court had, in its turn, considered an appeal from a decision of Emmet J in the Federal Court in which he, the primary judge, had overturned a decision by the Human Rights and Equal Opportunity Commission (“HREOC”). HREOC had found that the expulsion of a child from a school on the grounds of violent misconduct flowing from his disability had breached the Disability Discrimination Act 1992 (Cth). The case was argued as a complaint of direct discrimination under s 5(1) of the Disability Discrimination Act 1992.

80 In Purvis, one of the major issues for determination was whether the proper comparator used to determine whether the expulsion was “less favourable” was a child without disabilities who, like the appellant in that case, had exhibited violent behaviour or whether the violent behaviour was so intimately related to the disability that it was inappropriate to take it into account. The majority (Gummow, Hayne and Heydon JJ) held that the circumstances in which the complainant was treated by the school included his own violent behaviour.

81 The majority said (at 185 [223]-[224]):

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s5(1) [ Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be 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 appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

The circumstances referred to in s5(1) 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 "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s5(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.

82 The key to a proper understanding of the ratio decidendi in Purvis is that the High Court laid emphasis on identifying first the relevant circumstances “attending the treatment given (or to be given) to the disabled person” and then on examining “what would have been done in those circumstances if the person concerned was not disabled.” Underlying this consideration is the critical issue of equality of treatment of able-bodied and disabled persons in circumstances which are the same or materially indistinguishable.

83 In this case, the crux of Mr Nesci’s complaint is that a number of TAFE teachers, of which he was one, were each offered a voluntary redundancy and that the offer made to him was materially inferior to that offered to others in that group.

84 Counsel for the Respondent, Ms Ronalds, contends that it is inappropriate to nominate Mr Bailey as the comparator because, unlike Mr Nesci, he had not used up all his leave entitlements and had not been offered the opportunity to discuss retraining and relocation opportunities with the Respondent. What Ms Ronalds does not explain, however, is why those distinctions between Mr Nesci and Mr Bailey are material to the question.

85 In Purvis, all the decision-makers from HREOC up, had to compare the Appellant’s situation with a hypothetical comparator. It was commonsense in that case to make a comparison between boys exhibiting violent behaviour, one of whom had a disability intimately related to his misbehaviour, to determine whether the treatment afforded was “less favourable”. With sufficient effort, distinctions can always be found between persons even if they are ultimately absurd in a given context (eg whether the compared persons have blonde or brown hair or whether they wear red socks or black would, in this case, certainly reach towards such absurdity). In making comparisons between persons, and in deciding whether Mr Bailey is a relevant comparator for Mr Nesci, we must take into account only relevant distinctions. That is to say, we will take into account only distinctions that could have had some relevant effect on the decision made by the respondent. In this case, it seems to us that the proper comparison to be made is between any members of the group of teachers who were offered VR, whose number, of course, include Mr Bailey. What had preceded the offer was irrelevant precisely because their circumstances in relation to exhaustion of leave were different. The Respondent, it says, made the offer to all the members of the group without reference to whether the teachers had the right to apply for leave without pay. That was not a precondition of the offer and is therefore irrelevant. Accordingly, applying Purvis, it is not open for the Respondent to point to it and say that it gives rise to a material distinction between Mr Nesci and Mr Bailey, thus preventing Mr Bailey being used as a comparator.

86 The second leg of the Respondent’s argument is that Mr Bailey is an inappropriate comparator because, unlike Mr Nesci, he had not had discussions with the Respondent concerning retraining or relocation opportunities and this gives rise to a material distinction between the two.

87 That argument would be correct, in our view, but for one important factor: the Respondent’s decision to offer VRs to teachers at the Institute was not dependent on whether or not they had previously had discussions concerning relocation or retraining. In Purvis, the High Court made it clear that all pertinent circumstances had to be taken into account when making the relevant comparisons. In that case, the fact that the boy in question behaved in a certain way was found by the court to be a relevant circumstance. It would have been artificial to exclude such a consideration in that case and the court held that to be so.

88 As we have said, it is always possible, if one goes far enough, to find points of distinction between the aggrieved person and the nominated comparator. Relevance is the issue. By making a decision to make offers to all rather than to attempt to customise a solution for each person, the Respondent had effectively decided to make a new start for all teachers concerned with the round of offers. All were to be placed on a ‘level playing field’. All were to be given the same options and an equal chance of exercising those options. Any earlier discussions between the Respondent and any individual teacher (including those between the Respondent and Mr Nesci) were thereby overtaken by events and thus rendered immaterial.

89 We consider, therefore, that it would be artificial to include consideration of the previous discussions between TAFE and Mr Nesci when attempting to find an appropriate comparator. Once the Respondent had decided to make VR offers across the board to all teachers at St George, the relevant comparison was between those who were grouped together on the purportedly level playing field to receive the Respondent’s offers for their consideration. That included Mr Bailey and Mr Nesci. Mr Bailey, consequently, is, in our opinion, an apt comparator in these circumstances.

90 Less favourable treatment Having found Mr Bailey to be an appropriate comparator, we must now consider whether the treatment afforded Mr Nesci was “less favourable”.

91 We deal first with the issue of priority consideration. There is no evidence that Mr Bailey, Mr Nesci or any of the teachers offered a VR in the January 2001 round were told that they were eligible for priority consideration. The standard information sessions held for TAFE staff facing redundancy were not offered to this group. Presumably, they were left to rely on their own knowledge of public service rules and practice. While the Respondent denied Mr Nesci a benefit associated with employment by failing to advise him that he was eligible for priority assessment, it did not in treat him differently from his colleagues on this account.

92 Accordingly, the assessment of less favourable treatment is restricted to the benefits set out in the letter of offer sent to Mr Nesci’s colleagues, namely, retraining and relocation which, as we have found, includes a VR swap.

93 The respective offers made to Mr Nesci and Mr Bailey were the same in that both were offered the option of accepting or declining the offer of VR. But that was where the similarity ended. The offer to Mr Bailey (and his colleagues) included the option of relocation and retraining. While there had been some attempts made to identify suitable alternative employment for Mr Nesci, nothing concrete or formal had been done to comb through all the retraining and relocation options before eliminating the possibility of rehabilitating his career by that means before offering him a VR on a “take-it-or-leave-it” basis. In other words, an exhaustive search of all available retraining and relocation options that might have been available to Mr Nesci as at January 2001 had not, in our view, been conducted.

94 If it had been previously demonstrated that there was no reasonably practicable option for retraining or relocating Mr Nesci, it would be open for us to conclude that there was no essential or material difference between the VR offers made to him and Mr Bailey. Mr Nesci, however, has shown that, on its face, the VR offer made to him was less favourable than that made to the comparator. At the very least the evidence shows he was not given the opportunity to explore whether a suitable position could be found by way of a VR swap. An evidentiary onus therefore falls upon the Respondent to show that, in practice, there was no material detriment to Mr Nesci in the manner the respective offers were made.

95 On the evidence before us, it seems that there was at least a possibility, if reasonable and sufficient efforts had been undertaken, of finding such a position or skill set in which Mr Nesci could have been retrained or relocated and that he was denied such an opportunity.

96 Accordingly, we are satisfied that less favourable treatment has been established.

(iv) Causation

97 It falls to Mr Nesci to establish that one of the reasons for his less favourable treatment was his disability.

98 The Respondent contends that, on his own case, Mr Nesci cannot succeed given his contention that he was treated as he was because he had become a thorn in the Respondent’s side and it was intent on getting rid of him. This, as Ms Ronalds correctly points out, is not a proscribed ground of discrimination.

99 Mr Nesci rejects this characterisation of his case. He argues that the moving force behind the Respondent’s conduct was his disability and that his complaint to Mr Kretchmer and the Minister for Education simply brought matters to a head.

100 In our view, the evidence does not support a finding that the Respondent failed to offer retraining or relocation to Mr Nesci because it wanted to punish him. Rather, we think the reason was as the Respondent’s managers have stated: that they had formed the view that all avenues had been exhausted to accommodate Mr Nesci and any further efforts would come to nothing. That view was based on the assumption that the options open to Mr Nesci were restricted (or non-existent) in part because of his fitness for work which, in turn, was inextricably linked to his disability.

101 While it was not the sole reason for the decision not to offer retraining and relocation to Mr Nesci, we are satisfied that his disability was one of the reasons.

102 Accordingly, we find that the complaint of discrimination on the ground of disability as it relates to the offer of VR has been substantiated.

Claim 2: Refusal to allow Mr Nesci to return to work without further medical assessment

103 Mr Nesci claims that the Respondent unlawfully discriminated against him by requiring him to submit to a further HealthQuest examination before returning to work. To succeed in this claim, he must establish that:

First, that the treatment about which he complains falls as he asserts within paragraphs (a), (b) and/or (d) of s 49D(2) of the Act.

Second, that a person without his disability was, or would have been treated more favourably in the same or similar circumstances.

Third, that one of the reasons for any less favourable treatment was his disability.

104 Before examining these issues, it is useful to briefly restate the factual background to this part of the complaint. On 3 December 2000, Mr Nesci wrote to Mr Miller and advised that he intended to return to work at the start of the 2001 teaching year, that he had in-principle support from his supervisors and that he had been certified fit for part-time work by his treating doctor. By letter dated 21 December 2000, Mr Killinhgham advised Mr Nesci that he had requested Mr Kretchmer to review the option of his return to work at the St George College on suitable duties from 29 January 2001 “consistent with your current health condition” and to assist in that regard he would be referred to HealthQuest in the New Year for “advice on your fitness to continue”.

105 On or about 9 January 2001, Mr Kretchmer told Mr Nesci that he was to be offered a VR. At that time, apparently, no steps had taken to organise the HealthQuest referral. In the course of those discussions Mr Kretchmer told Mr Nesci that it was not possible for him to delay deciding about the VR and Mr Nesci consented to the HealthQuest referral being put on hold until he had made a final decision about the VR offer. The VR was made effective from February 2001. The HealthQuest assessment did not take place.

106 Mr Nesci claims that the Respondent, by requiring him to submit to a further assessment, and the uncertainty generated by this, left him with Hobson’s choice: accept the VR or run the risk that the HealthQuest assessment would either not be finalised in time for the start of the teaching year or it would find him not fit to return to work.

107 The treatment In the Amended Points of Claim the claim is particularised as follows:

13. The Assistant Director of the Respondent unreasonably refused to allow the Applicant to return to work until a further medical assessment was carried out thereby subjecting the Applicant to a financial detriment.

13A. The Respondent unlawfully discriminated against the Applicant in the terms on which the Respondent as employer afforded employment to the Applicant, namely, that he could not return to work unless there was a further medical assessment.

14. Further, and in the alternative, the unreasonable conduct of the Respondent in refusing to allow the Applicant to return to work notwithstanding that he was fit to do so is unlawful discrimination in that the Respondent treated the Applicant differently to the way he would have treated a person who did not have the disability of the Applicant.

108 Mr Nesci argues that the facts of this matter are similar with those in Higginson v Cargill Australia Limited [2001] NSWADT 152. In that case the employer refused to allow Mr Higginson to return to work on the basis of a medical assessment carried out by its nominated doctor. The Tribunal took the view that that conduct fell within s 49(2)(a) and s 49(2)(d) of the Act. Here the offending conduct was the request that Mr Nesci attend a medical assessment before he returned to work. Unlike Higginson, there was no refusal to allow Mr Nesci to return to work as a result of the referral to HealthQuest. The HealthQuest referral never took place because an intervening event occurred, namely the acceptance of the VR.

109 Paragraph 13 asserts that Mr Nesci suffered a financial detriment because the Respondent unreasonably refused to allow him to return to work until a further assessment had been carried out. We do not agree for these reasons. First, as noted, he was not barred from returning to work. Second, he was on leave without pay throughout December 2000 to January 2001 and would have been regardless of whether he had been requested to attend a medical examination.

110 In our view, the requirement to submit to a medical examination could be characterised as a condition of employment and therefore is capable of falling within paragraph (a) of 49D(2) of the Act.

(ii) Less Favourable treatment

111 The comparator advanced by Mr Nesci is “a teacher of the Sydney Institute on leave without pay without his disability”.

112 There was much argument in this case about whether the offending requirement was reasonable. The Respondent pointed out that Mr Nesci had been on leave for an extended period and that it had an obligation to its staff, students and Mr Nesci himself to satisfy itself that he was fit to return to work. Mr Nesci argues the Respondent could have relied on the opinion of his treating doctor.

113 In our view, this argument somewhat misses the point. The issue here is not whether the requirement was reasonable as it would be in a claim of indirect discrimination but whether the treatment afforded was less favourable. As Dawson and Toohey JJ explained in Waters v Public Transport Corporation (1991) 173 CLR 349 (at p 392):

…direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

114 It is not enough for Mr Nesci to establish that the treatment afforded him might have been different to that meted out to a hypothetical comparator. He must also establish that it was less favourable in the sense that it was detrimental. As Wilcox J commented in Commonwealth of Australia v The Human Rights and Equal Opportunity Commission (Dopling No 1) (1993) 119 ALR 133 the concept underlying the element of less favourable treatment element is detriment.

115 The Respondent did not, as Mr Nesci feared, bar him from returning to work because of an adverse medical assessment. It merely informed him that he would be required to submit to a medical examination before his proposed return. Once he elected to take the VR, the requirement to undertake the medical became irrelevant.

116 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 the meaning of “detriment” in the context of a claim of victimisation brought under s 50 of the Act was considered. The Tribunal held that to constitute a detriment, the offending conduct must be “real and not trivial”. The Tribunal went on to observe that:

“[W]hether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment”.

117 In this case, the assessment could have been positive for Mr Nesci or it could have been negative or equivocal. Of course, had the Respondent stopped him from returning to work on the basis of that assessment, that would have been another thing. However, the imposition of the requirement to undertake a medical assessment (presumably at the Respondent’s expense) in such circumstances can only be regarded, in itself, as having a neutral effect on Mr Nesci except for the minor inconvenience in attending the appointment.

118 In circumstances peculiar to an individual, it may be possible to find that a requirement that an employee suffering from a disability undergo a medical examination before returning to work is a detriment or less favourable treatment. For example, a person may hold particular religious beliefs or suffer from religious scruples or an unusual phobia which would cause him or her to suffer psychological pain if medically examined. Without such evidence in a specific case, however, it is difficult to see how a commonplace medical examination and assessment in which no painful or injurious procedures were to take place could be regarded as harmful, detrimental or disadvantageous to a person.

119 It is difficult to see how Mr Nesci can argue that he has been discriminated against by reference to the terms and conditions of his employment if all that his employer has done is to require him, before returning to work after a long illness, to satisfy a designated medical officer that he is fit to return to work. For this to constitute discrimination, it must be positively shown by objective evidence that it was a detriment to him.

120 We accept that Mr Nesci perceived that the imposition of the requirement was unreasonable as he had been cleared for part-time work by his own doctor. However, we are not satisfied that the offending requirement can be said to be less favourable in the sense that it was detrimental.

121 Even if we were to accept that, in the circumstances of this case, the requirement to submit to a medical examination was detrimental treatment it does not follow that the treatment was also less favourable in a comparative sense. The comparator advanced by Mr Nesci is “a teacher of the Sydney Institute on leave without pay without his disability”. It catches a diversity of hypothetical employees and might include someone in perfect health who had taken extended leave to travel overseas or an employee with a disability different to Mr Nesci’s. For example, it could be an employee with depression who had been off on leave on account of ill health.

122 It seems to us that the former could not be said to be in broadly comparable circumstances to Mr Nesci. The latter is a more useful basis for comparison. It sees to us improbable that the Respondent in those circumstances would not have required a further medical examination.

123 For these reasons, we are not satisfied that the element of less favourable treatment is made out.

124 Accordingly, this part of the complaint is dismissed.

Relief

125 Mr Nesci seeks orders for damages of $40,000 and reinstatement or re-employment.

126 He claims that had he been offered the option of retraining or relocation he would not have left TAFE. He claims the only reason he took the redundancy was because, as he saw it, his position had become untenable.

127 Mr Nesci submits that reinstatement or reemployment are more appropriate remedies than damages given that through the operation of s 113(1)(b)(i), the amount of compensation is capped at $ 40,000 which, he argues, could never adequately compensate him for his loss. He contends that the Tribunal’s broad powers to grant relief under s 113 would allow it to, in effect, ‘void’ the VR agreement. He contends that he did not give informed consent to the VR and therefore his consent must be seen to be nugatory.

128 In addition, he claims compensation for economic and non-economic loss. He calculates the former to be just under $100,000. Mr Nesci submits that to establish a claim for economic loss based on loss of opportunity, it is not necessary to for him to establish on the balance of probabilities that he would have re-employed. It is enough, he contends, relying on the High Court decision in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 at 643, that he establish there was even a one percent chance that the opportunity to retrain or relocate could have realised.

129 The Respondent asserts that re-employment or reinstatement are not appropriate remedies in the circumstances of this case. Contrary to Mr Nesci’s assertion, it argues there was no coercion. He voluntarily entered into an agreement to accept a VR, a decision which, in hindsight, with the improvement of his health, he now regrets.

130 The Respondent submits that the test to be applied in determining what damages ought be awarded is this: had his letter of offer been the same as that sent to his colleagues, what opportunities would he have had that would have allowed him to stay in the workforce? There is no certainty, argues the Respondent, that if Mr Nesci had been provided with the same opportunity offered to his colleagues that he would have been successfully retrained and/or relocated and able to continue his employment with the Respondent. The Respondent asserts that there is no evidence that he would have availed himself of those opportunities, rather than voluntarily accepting the redundancy offered. Citing Bonella & ors v Wollongong City Council [2001] NSWADT 194, the Respondent contends that a loss of opportunity in those circumstances does not give rise to a right of damages for economic loss.

131 In addition it is submitted that Mr Nesci has failed to mitigate his loss.

Findings and conclusions

132 Section 113(1)(b) of the Act provides that, having found the complaint substantiated, the Tribunal may make various orders for relief, including an order:

(i) that the respondent pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(ii) that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(iv) declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or

(v) declining to take any further action in the matter.

133 In our view, in the circumstances of this case, it is not appropriate that we make an order that Mr Nesci be reinstated. It is to be noted that his case was not that he been constructively dismissed from his employment. In any event, as the Respondent points out, there are a number of significant obstacles that make reinstatement impractical not least of which is that Mr Nesci’s position no longer exists.

134 We think the more appropriate remedy is to be found in s 113(1)(b)(i).

135 Principles governing award of compensation under s 113 Until recently it had been widely accepted that an action under the Act was akin to an action in tort, and that the common law rules which govern the award of damages in actions in tort were applicable. (See for example the approach taken by Sully J in Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 at [35]. Spigelman CJ in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245-246, questioned that approach and stated in obiter that “…I should indicate that I do not share the opinion … that a complaint leading to an order of payment of “damages…by way of compensation” under s 113(1)(b)(i) constitutes a “tort” within the meaning of s 8 of the Law Reform (Vicarious Liability) Act.”

136 That approach was cited with approval by the Appeal Panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 at [33]:

“… We believe that the views of Spigelman CJ … should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent’s conduct, but they are not controlling.”

137 Loss of opportunity In Sellars v Adelaide Petroleum NL (Poseidon) (1994) 179 CLR 332 the High Court considered whether the loss of an opportunity to obtain a commercial advantage or benefit amounted to “loss or damage” within s 82(1) of the Trade Practices Act 1974 (Cth) (“TPA”) and, if so, how the issues of causation and assessment of damages ought be determined. Section 82(1) provides that “a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention”.

138 It is useful to briefly set out the facts of that case. Adelaide Petroleum had entered into parallel negotiations with two separate companies to obtain an injection of working capital by selling off a parcel of shares. A draft contract was prepared with one of the companies, Pagini, but the directors of Adelaide Petroleum decided to withdraw from those negotiations and instead entered into a contract with Poseidon. Three weeks after the head of agreement had been signed off with Poseidon, Poseidon repudiated that agreement. As a consequence, Adelaide was forced to return to the negotiating table with Pagini and eventually an agreement was entered into, the terms of which were less favourable to Adelaide than the first draft of the Pagini contract. Adelaide then sued Poseidon under s 52 of the TPA alleging that, but for the false representation by Poseidon’s negotiator, it would have entered into the first contract with Pagini which would have been to its commercial advantage. The trial judge found that s 52 had been contravened and awarded damages under s 82 despite finding that it was far from certain that the first Pagini contract would have been completed.

139 On appeal it was argued that damages for loss of chance were not available under s 82 of the TPA and that Adelaide had failed to establish on the balance of probabilities that it would have entered into and obtained benefits under the first Pagini contract.

140 The majority (Mason C.J., Dawson, Toohey and Gaudron JJ.) held that loss of an opportunity to obtain a commercial advantage or benefit is loss or damage within s 82(1) of the TPA and then went on to consider whether the principles developed in tort and contract in respect to damages for loss of opportunity should be extended to an assessment of damages under s 82(1).

141 In relation to causation, the majority said (at p 355):

“The general standard of proof in civil actions would ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.”

142 The majority then went on to consider the issue of assessment of damages. They noted (at p 349) that “there can be no doubt that a contract to provide a commercial advantage or opportunity, if breached, enables the innocent party to bring an action for damages for the loss of that advantage or opportunity” citing The Commonwealth v. Amann Aviation Pty. Ltd. (1991) 174 CLR 64. In Amann the majority concluded that a lost commercial advantage or opportunity was a compensable loss, even though there was less than 50 per cent likelihood that the commercial advantage would have been realised.

143 The majority then went on to consider the position in tort and cited the following passage from in Malec v. J.C. Hutton Pty. Ltd (at 643) which concerned the loss of a chance (of future earnings):

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ...But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."

144 The majority (at p 350) considered there was no logic in confining this approach to the assessment of damages for personal injuries and held that damages for deprivation occasioned by breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court’s assessment of the prospects of success of that opportunity had it been pursued.

145 Factual Issues to be determined In our view the loss of an opportunity or chance to future earnings is “loss or damage” within s 113(1)(b)(i). Applying the principles in Sellars to the facts of this case it seems to us that the two key issues that fall to be determined are: first, did Mr Nesci suffer any loss “by reason of the Respondent’s conduct”; and second, if so, had his letter of offer been the same as that sent to Mr Nesci’s colleagues what is the degree of probability that he would have been able to take up those opportunities so as to allow him to stay in the workforce?

146 Causation As a consequence of the Respondent’s contravention of s 49D(2) of the Act. Mr Nesci was denied the opportunities of retraining or relocation that, if realised, might have allowed him to stay in the employ of TAFE. The opportunity to remain in employment is an opportunity of real commercial value.

147 Assessment The Respondent contends that Mr Nesci has led no evidence that if he had been offered the same opportunities as offered to his colleagues that those opportunities would have been realised and allowed him to stay in the workforce. It was at best, the Respondent argues, a chance. It points to the fact that at the time the VR was offered Mr Nesci was incapable of working full time which was a condition of his employment. The fact that he subsequently recovered, argues the Respondent, is irrelevant. Further, it contends that there was no certainty that if he had he been offered retraining or relocation he would have availed himself of those opportunities rather that the VR.

148 The state of Mr Nesci’s health clearly reduced the chance that he could have taken up the offer of retraining or relocation. However, we do not agree that there was no chance that this might have happened. While as the Respondent contends it was under no legal obligation to offer Mr Nesci part-time work (or study), it had the discretion to do so and, indeed, had done so in the past. The evidence shows that the Respondent had been prepared to consider various relocation and retraining proposals throughout the 16 months before the VR was offered, notwithstanding that Mr Nesci had been certified unfit to work full time during that period.

149 While Mr Nesci’s health would have limited his chance of being able to realise the opportunities of retraining and relocation, it cannot be said because of it there was no loss of opportunity or that any such opportunity was so slight as to be negligible.

150 Messrs Kretschmers and Miller gave evidence that they believed that there was no real chance that Mr Nesci would have been able to take up retraining and relocation had it been offered in the context of he VR. Their opinions are not determinative. They are based on the assumption that, before VR was offered to Mr Nesci, an exhaustive survey had been conducted of all real options. We have concluded otherwise. In addition, it is to be noted that Mr Miller’s enquiries were not conducted in the context of Dr Ovadio’s more optimistic assessment of Mr Nesci’s health as provided to the Respondent in December 2000.

151 In this case it seems to us that there was a real, but low, possibility of Mr Nesci finding a position into which he could relocate. It is to be noted that the offers of relocation made to other teachers were conditional upon their being able to organise a swap with another colleague who was interested in a redundancy. The evidence of Ms Makin indicates that there was at least one person who was prepared to consider swapping their position for a VR. There is no way of knowing with any certainty whether that teacher would have agreed to a swap with Mr Nesci and whether TAFE would have sanctioned a swap.

152 Nevertheless, he was not a tabula rasa but an educated, intelligent man with a bank of teaching and other skills and experience. It seems to us, therefore, that there was a significant possibility of being retrained for a position that would enable him to work and allow the Respondent to use his skills. The evidence makes it clear that he had a diversity of skills that would have allowed him to work in positions other than teaching. Ms Eagles for example considered that he had the skills necessary to take on a position at OTEN and Ms Smallwood apparently thought highly of his experience and skills as a counsellor. It is true that some efforts had been made on the part of the Respondent’s employees along these lines but those efforts were, in our view, desultory, sporadic, unfocussed and lacking in energy. In addition as noted those efforts had not included a VR swap which in our view given the size of the organisation might have been able to be organised. It seems reasonable to conclude, in the context of the offer of the VR, that if Mr Nesci had been provided with the opportunity to make one last sustained effort to explore retraining and relocation there was a real possibility, given the size of the organisation and the variety of skills it employs, of finding a position for which he could have been retrained or to which he could been relocated. (Of course, there was no certainty that if Mr Nesci had been able to find a position into which he could have been relocated or retrained, that the Respondent would have agreed to that proposal.)

153 It is of course impossible to say with any precision what would have been the chance of Mr Nesci realising the opportunities of retraining or relocating had they been offered. The answer to that question requires us to speculate about past hypothetical events and to take into account the vagaries of many interrelating factors. It is notoriously difficult to quantify loss in these circumstances. In Amann Deane J emphasised the injustice of doing otherwise. He said (at pp 118- 120):

There are, however, cases where considerations of justice or the limitations of curial method render ultimate findings, about what would have been or will be, impracticable or inappropriate. In such cases, damages must be assessed on some basis other than findings about what would have ultimately happened if the repudiation or breach had not occurred or about the precise ultimate implications of the situation which exists after the repudiation or breach. In particular, it may be appropriate that damages be assessed by reference to the probabilities or the possibilities of what would have happened or will happen rather than on the basis of speculation that probabilities would have or will come to pass and that possibilities would not have or will not. If, for example, what the plaintiff has lost by reason of the defendant's repudiation or breach of contract is a less than fifty percent but nonetheless real and valuable chance of winning some contest or prize, of being the successful tenderer for some commercial undertaking or of deriving some other advantage, in circumstances where a court can decide that a proportionate figure precisely or approximately reflects the chance of success but can do no more than speculate about whether, but for the defendant's wrongful act, the plaintiff would have actually won the contest, prize or tender or derived the advantage, it would affront justice for the court to hold that the plaintiff was entitled to no compensation at all for the lost chance of competing or striving or for the wasted expenditure which was incurred in obtaining or performing the contract. In such a case, considerations of justice require that the plaintiff be entitled to recover the value of the lost chance itself and that the defendant be not allowed to take advantage of the effects of her own wrongful act to escape liability by pointing to the obvious, namely, that it is theoretically more probable than not that a less than fifty percent chance of success would have resulted in failure. Thus, for example, a plaintiff whose action against a third party has become statute barred by reason of a defendant solicitor's breach of contract may recover damages by reference to the court's assessment of what the chance of success in the action against the third party would have been even though that assessment is fifty percent or less…

[I]t is neither desirable nor practicable to seek to formulate an exhaustive comprehensive rule defining the circumstances in which it is appropriate for a court to assess damages on the basis that what has been lost or inflicted is the probability or possibility of benefit or detriment as distinct from the benefit or detriment itself. It suffices for the purposes of the present case to say that damages should be assessed on that basis in a case where the extent of the final loss or injury actually sustained by reason of the repudiation or breach depends upon what would have happened or what will happen and the circumstances are such that the court can identify or estimate a precise or approximate proportionate chance of benefit or detriment but can do no more than speculate, on the basis of probabilities and possibilities, about what would have or will actually come about.

154 Taking into account the fact that some efforts had already been made by the Respondent to consider the retraining and relocations options, the state of Mr Nesci’s health and all other relevant factors, we think that it would be reasonable to assess his loss of a chance at, say, 30 per cent of a certainty.

155 Before calculating Mr Nesci’s economic loss, it is necessary to determine whether, as the Respondent asserts, Mr Nesci failed to mitigate his loss. While Mr Nesci has a duty to mitigate his loss, the burden is on the Respondent to prove that he unreasonably refused to mitigate his loss. (Munce v Vinidex [1974] 2 NSWLR 235) The Respondent points to the evidence that, despite his qualifications, he hardly looked for any counselling jobs in the private sector during 1999 and 2000 as TAFE was his priority and, accordingly, he has failed to mitigate his loss. That evidence relates to the period before the VR was offered, and the contravention of the Act occurred and therefore, in our view, is irrelevant to a determination of loss. The evidence indicates that Mr Nesci did make some efforts to mitigate his loss. For example he took on some part-time work at Petersham TAFE throughout the period January 2002 to October 2003. We are not satisfied that the Respondent has established that Mr Nesci unreasonably refused to mitigate his loss.

156 Exhibit A 15 sets out the damages claimed by Mr Nesci for economic loss. He claims an amount of $97,966. This is calculated on the basis of lost income from January 2000 to December 2004, less the payout under the VR and his income from casual work at TAFE after he took the VR:

Income lost: $155,750

Less Post VR income $67,784

Total $97,966

157 In our view there are two shortcomings with these figures. First, the amount claimed for “income lost” includes an amount for income lost before the VR was offered. In our calculations, we have reduced the figure for income lost to $121,375 by subtracting the amount claimed for the period up to March 2001.

158 The second shortcoming is that no adjustment has been made to take account of the possibility that the opportunity of retraining/ redeployment might not have been realised.

159 Our calculations of economic loss are as follows:

Income lost: $121,370

Less Post VR income $67,784

Net Loss $53,586

30% of Net Loss $16,075

160 Based on these findings, Mr Nesci is entitled to damages for economic loss in the sum of $16,075.

Non-economic loss

161 Mr Nesci also claims an unspecified amount for damages for non-economic loss.

162 We accept his evidence that he became quite depressed and felt that he had not been treated fairly when he discovered that he had not been offered the same opportunities as his colleagues in the context of the VR offer.

163 The task of determining the appropriate level of damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. (See Hall vSheiban (1985) ALR 503 at 543). Taking into account all relevant factors, we believe $3500 to be a fair and reasonable figure to award Mr Nesci for non-economic loss.

Orders

1. That part of the complaint, as it relates to the requirement that the Applicant attend a medical examination, is dismissed.

2. That part of the complaint as it relates to the Offer of Voluntary Redundancy is substantiated.

3. Within 28 days of the date of this order, the Respondent is to pay to the Applicant the sum of $16,075 as damages for economic loss.

4. Within 28 days of the date of this order, the Respondent is to pay to the Applicant the sum of $3,500 as damages for non-economic loss.