O'Brien v Recycled Resources Pty Ltd

[2000] NSWADT 193

CITATION:	O'Brien -v- Recycled Resources Pty Ltd [2000] NSWADT 193
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT David O'Brien RESPONDENT Recycled Resources Pty Ltd
FILE NUMBER:	001032
HEARING DATES:	07/12/2000, 08/12/2000
SUBMISSIONS CLOSED:	12/08/2000
DATE OF DECISION:	12/12/2000
BEFORE:	Ireland G - Judicial Member; Nemeth de Bikal L - Member; Farmer L - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT
ORDERS:	Application dismissed.

1 The Tribunal, in this matter of Mr O'Brien's complaint has considered the material that has been put before it. I will read the decision, and when the transcript is available I will edit it and then release it.

2 This complaint was made by Mr David O'Brien, the applicant, to the Anti-Discrimination Board on 1 February 1999 in which he claimed discrimination on the grounds of disability. The disability related to an injury to his left leg suffered in a motor accident which required him to use a walking stick for mobility and stability. It was conceded by the respondent that this disability came within the definition of disability in section 4 of the Anti-Discrimination Act (1977) (the Act).

3 The complaint was investigated by the Anti-Discrimination Board. It was unable to have the complaint conciliated and at the request of the applicant the complaint was referred to this Tribunal under section 94(1) of the Act, for inquiry. The respondent conceded that it employed the applicant since 12 October 1998 on a casual basis as a belt picker at its Kurnell site (the site).

4 The applicant was unrepresented before the Tribunal. At the conclusion of the evidence in his final submissions the applicant formulated his claims of discrimination in two propositions each of which if established constitutes a claim of direct discrimination under section 49B(1)(a) of the Act.

49B What constitutes discrimination on the ground of disability
(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 the circumstances which are not materially different, the perpetrator treats or would treat a person who does not have such a relative or associate who has that disability.

5 The propositions of the applicant are that the respondent discriminated against him on the ground of his disability:

(1) By requiring the applicant to submit a medical certificate as to his fitness to perform his duties to the respondent when other employees were not required to produce a medical certificate;
(2) By terminating his employment with the respondent because of his disability in circumstances in which the respondent would not have terminated an employee who did not have that disability.

6 An examination of the report of the President of the Anti-Discrimination Board to the Tribunal which was admitted into evidence shows that it was only the latter proposition that was investigated by the Anti-Discrimination Board and ultimately referred for inquiry by this Tribunal.

7 The applicant had not alleged discrimination by the respondent arising out of the requirement for a medical certificate in his complaint to the Anti-Discrimination Board. In deference to the applicant and his lack of legal assistance and in the absence of an objection by the respondent the Tribunal has also examined that first proposition. The Tribunal is satisfied that the applicant has not established that on the ground of his disability he had been discriminated against by the respondent by requiring the production of a medical certificate.

8 The respondent through its site manager, Mr Reid, and it's managing director, Mr Jackson, requested on several occasions that the applicant produce a medical certificate. The applicant did not provide a certificate to the respondent. He told the respondent that he had been cleared to work by a "Commonwealth doctor" who he described as a doctor employed by the Department of Social Services.

9 Mr Jackson stated that it was the policy of the respondent that if any employee was suffering from a disability which might affect the employee's ability to perform his duties or in performing his duties the injury might be aggravated the employee was required to produce a medical certificate. In January 1999 when Mr McGrath, the driver of the loader on the site, was off work from a back strain, he was required to produce medical confirmation of his fitness to resume duties, albeit in his case on light duties.

10 The applicant referred to the position of Mr Pannett who shared with the applicant the role of belt picker. Mr Pannett worked normally only one day each week. He is an elderly person and wears a hearing aid. It was acknowledged by the respondent that he had not been required to provide a medical certificate as to his fitness in relation to his hearing condition.

11 It is the view of the Tribunal that an employer is entitled to require an employee, as a condition of employment, to satisfy the employer on medical grounds that a pre-existing disability will not be aggravated or further harmed by his employment.

12 It is in the interest both of the employer and the employee that where the working conditions may subject the employee to further injury or harm that the ability of the employee to work without undue exposure to risk of injury or aggravation of injury, is established. It is untenable to suggest that in these circumstances an employer requiring a medical certificate of fitness is subjecting the employee to unfavourable treatment on the ground of the employee's disability.

13 The circumstances of the applicant's employment with the respondent as described later had elements of safety which required careful management and control to avoid undue exposure of its employees to injury. The employer in such circumstances would be irresponsible if it were not satisfied on medical evidence that an employee already suffering a disability would not unduly expose himself or his fellow employees to injury or harm.

14 The alleged discrimination that was investigated by the Anti-Discrimination Board relates to the termination of the employment of the applicant. Initially the applicant stated to the Tribunal that his employment was terminated on 11 January 1999 when the crusher machine was shut down at the direction of Mr Jackson after it became unstable. Mr Jackson stated that when he visited the site on that day to inspect the crusher he noticed for the first time that the applicant was operating the crusher and he told the applicant that he was not able to operate the crusher because of his disability and he should cease that occupation.

15 The crusher was not able to function and Mr Jackson directed that it be shut down for repair for an indefinite period. The closure of the crusher operation brought all work at the site to a stop on that day. Mr Jackson told the applicant and Mr Pannett that they were stood down until work was available for them. Both men were casual employees to whom a period of notice of cessation of employment was not required.

16 The applicant later agreed that his employment was not terminated until 20 January 1999 when Mr Reid, the site manager, told the applicant that his services were no longer required. The Tribunal accepts that the evidence establishes that the applicant's employment was not terminated until 20 January 1999.

17 The evidence also establishes that the applicant first commenced work at the site on 7 July 1998 as a belt picker. At that time he was employed by Rontril Pty Ltd, a company managed by Mr Bill Bodiam. Rontril Pty Ltd contracted with the respondent for the supply of work and labour at the site. This arrangement ceased in early October 1998. For a period thereafter the state manager of the respondent acted as site manager at the Kurnell Plant.

18 On 9 December 1999 Mr Reid was appointed by the respondent as site manager. Mr Reid continues in that role. On 12 October 1998 the applicant transferred from the employment of Rontril Pty Ltd to the employment of the respondent. By 20 December 1998 Mr Reid had completed a review of the operations at the plant and on Monday, 21 December he issued to the employees a document headed "Daily Operator Duty Report". This document contained a short description of the duties of each employee. The description of the applicant and Mr Pannett was "conveyors and screens"; the position of "generator and rubber tyre loader" was applied to Mr McGrath. Mr Terry Hunt's position was described "jaw crusher, magnet number 1 and impact crusher".

19 The applicant denied that he was provided with a copy of this document. Mr Reid was adamant that a copy was given to each employee. The applicant stated that by the 12th of October 1998 his role at the site had materially changed from his role as a belt picker. He stated that he was performing each of the tasks undertaken by employees at the site including repairing machinery, loader operator and operator of the crusher. He stated that his correct classification under the Quarrying Industry (State) Award (the Award) at that time should have been at least Quarry Worker Grade 3 - Advanced Attendant and probably Grade 4 - Quarry Worker Operator.

20 He continued to be classified and paid by the respondent at all times at the lowest level, that is as Quarry Worker Grade 1 - Trainee. After his termination of employment the applicant complained to the Department of Industrial Relations about his alleged undergrading. An inspector of that department investigated the complaint and interviewed the applicant, Mr Jackson and Mr Reid and other employees of the respondent. The inspector in the summary to his report stated:

There are conflicting statements from all parties. Recycled Resources is adamant that the complainant worked at other duties purely on his own volition outside of the company's directions. Equally, David O'Brien insists that he was allowed and encouraged to perform duties outside of his role of belt picker and should be regraded accordingly.

21 The inspector expressed his opinion that the complaint to the Department was not a matter that could proceed successfully and he sought a departmental legal determination. No other action was taken by that department. The applicant stated that the inspector told him that in his opinion he should be classified, at least, at grade 3 level. He stated he was told of this opinion in a telephone conversation with the inspector. No such opinion is expressed by the inspector in his report, and the conclusions of the report indicate that the inspector was not able to determine the issue. On 28 September 1999, the inspector requested the applicant supply a statutory declaration from Mr Bill Bodiam to confirm the duties performed by the applicant. The applicant stated that he was not able to contact Mr Bodiam to obtain the declaration.

22 The issue of the status of the applicant's employment weighed heavily on the applicant during and after his employment with the respondent and it still does. The applicant considered he was performing duties beyond the role of belt picker on a regular basis. He operated the loader according to a WorkCover Authority record sheet for a total of 43 hours between 11 October 1998 and 5 January 1999. These duties were performed under the supervision of Mr McGrath, a licensed loader operator, and were recorded on the timesheet according to the applicant to enable him to apply to the WorkCover Authority for a loader operator licence.

23 The respondent disputes that the applicant operated the loader for these periods. Mr Reid states that he did not authorise this activity and that he did not observe the applicant using the loader for such long periods of time. Mr McGrath confirmed that the record sheet accurately recorded the times in which he supervised the applicant operating the loader, although he agreed on some occasions he did not sign the record sheet until the day after the day recorded on the sheet.

24 The respondent points to the signatures of Mr McGrath on the record sheet to demonstrate that his signatures were applied in batches of different pens indicating that the signing off was not as systematic as the applicant and Mr McGrath stated. The Tribunal is not able to conclude from its inspection of the record sheet that the records were made in the systematic fashion described by the applicant. However, the Tribunal accepts that the applicant operated the loader during some periods during November 1998 and 5 January 1999, but is not able on the evidence to accept that the record sheet is an accurate record of the operation of the loader by the applicant.

25 It is clear from the evidence that a practice of switching of roles by employees applied at the site. This often arose from boredom to inject greater interest in the employee's tasks. Switching occurred in an unstructured manner. Each instance was not sanctioned by the site manager, but it occurred sufficiently frequently that the site manager would have observed on occasions, that an employee was performing a task outside his allocated functions, although he may not notice each instance. There was no formality to the switching and instances of switching were not recorded nor was any adjustment made to wages for performance at a higher grade.

26 This situation ultimately led to unrest in the employees and contributed to the complaint of discrimination by the applicant. At least, on two occasions in December 1998 and on 4 January 1999, both Mr Reid and Mr Jackson requested that the applicant take up permanent employment. The applicant refused these offers and on each occasion stated that he considered he was not being paid the full award wage and he would consider becoming a permanent employee when management agreed on the proper amounts to be paid to casual and permanent workers. Management stated that they would look into the position. The issue was still outstanding on 11 January 1999.

27 The applicant stated that he was alerted to the underpayment position by another employee, Mr Hunt. The applicant was elected by the employees as their spokesperson to pursue the issue with management. It was accepted that the underpayment affected 66 per cent of the workers. A representative of the union was invited to the site on 5 January 1999, and after the union representative left the site Mr McGrath left the site claiming he was suffering a back injury incurred at work on 12 October 1988. Mr Reid then requested Mr Hunt, the worker operating the crusher, to work the loader vacated by Mr McGrath and then directed the applicant to operate the crusher. Mr Hunt was licensed to operate the loader. The applicant continued to operate the crusher until 11 January 1999.

28 It was acknowledged by Mr Reid that there was unrest amongst the workers because of the under payment of wages and the applicant was the spokesperson and instigator of the unrest. The applicant was later vindicated in his pursuance of the wage issue, as it was agreed by the respondent that it had failed to pass on an award increase. Adjustments were made to the wages of the applicant and the other affected workers. A further adjustment of annual leave entitlement was made to the applicant by the respondent in the amount of $6809 as a result of the investigation by the Department of Industrial Relations of the complaint made by the applicant.

29 It was in this atmosphere of discontent that the crusher went down on the morning of 11 January 1999 and the applicant and Mr Pannett were stood down. The applicant alleges that at that time his role was confirmed as the operator of the crusher. He stated that this was his main role at the plant by the time Mr Reid commenced as site manager on 9 December 1998. At that time, the applicant stated that he was spending, at least, 10 hours per week on average operating the crusher and that he spent a further average of 4 hours per week on the loader and that the balance of his time was doing repairs and maintenance and some time on belt picking duties.

30 From 12 October '98 to 11 January 1999, the applicant worked as a casual on an average 4 days per week with Mr Pannett working on the other day each week. The average hours worked during this period by the applicant was 34.875 hours. On 5 January 1999, the applicant was instructed by Mr Reid to operate the crusher in place of Mr Hunt. The respondent denies that the applicant spent on average 10 hours per week operating the crusher prior to 5 January 1999.

31 Mr Reid stated that the applicant role at that time was a belt picker, and it was only because of the emergency created by Mr McGrath suddenly leaving the plant on 5 January 1999 that he was obliged to direct the applicant to operate the crusher, which he did through to 11 January 1999. Mr Reid agreed that there were occasions when the applicant job switched with the crusher operator but this did not constitute a change in the role of the applicant.

32 Mr Jackson, who visited the site, at least, once each week stated he was not aware until 11 January 1999 that the applicant operated the crusher at any time. When he saw that the applicant had operated the crusher, he directed that he should not operate the crusher as he considered it was unsafe for the applicant to do so. Mr Jackson described the operation of the plant in these terms.

Recycled Resources key operation is the crushing of building materials such as reinforced concrete and the manufacture of road base from these materials. There are a number of functions associated with this operation. Belt pickers operate a conveyor belt and picking obvious pieces of unsuitable material, such as wood and plastic, and discarding it. Loaders pick up material to be crushed and tip the material into a large hopper attached to the crushing machine. The material is shaken out of the hopper along a plate ... A walkway is constructed between 600 and 900 millimetres wide and is approximately three metres above the ground. This is where the operator stands at the crusher. The plate is 1.2 metres across. The operator of the crusher must be able to lean across the plate, maintaining stability and remove large foreign objects, such as reinforced steel. The operator of the crusher must be mobile to move out of the way of any bouncing material which may hit the walkway. They must also be stable when leaning across the plate area to remove objects.

33 The Tribunal cited a video depicting the plant in operation and there was an exhibit of a photo of the crusher and the control panel. The photo showed that a seat was erected on the walkway of the crusher adjacent to the control panel. A person could sit on the seat and reach the buttons on the control panel. The applicant stated that he and Mr Bill Bodiam erected the seat on their own initiative and without authority of management.

34 The seat was erected before Mr Reid became site manager. It was erected to assist the applicant to operate the crusher. He was able to sit on the seat, operate the control panel and to reach over the crusher side panel to extract foreign material which was close to that side of the crusher. To extract material at a further distance from the side panel, the applicant used the handpiece of his walking stick to hook the material and lift it out.

35 For foreign material on the far side of the hopper, the applicant would leave the seat, balance on his right leg and lean over the crusher belt to extract the material in his hand.

36 On 11 January 1999, Mr Jackson did not terminate the employment either of the applicant or Mr Pannett. The applicant was stood down until suitable work could be found for him. Mr Jackson directed that the applicant was not to operate the crusher again, as he considered that the applicant was not able with safety to carry out this function.

37 The Tribunal is satisfied that on 11 January 1999, the applicant's employment was not terminated as his role as a casual employee would continue once a suitable position became available. The following day - that is, on 12 January, 1999 - the applicant returned to the site accompanied by a friend, Mr McGrath's brother. They went to the site manager's office and the applicant spoke to Mr Reid and asked for his payslip. Mr Reid explained that the applicant's wages had been paid to his bank account in the usual way and he would be sent his pay slip.

38 The applicant demanded that he be given the job of loader operator and not Mr Hunt, who he said was inexperienced. Mr Reid pointed out that Mr Hunt was licensed to operate the loader and the applicant was not licensed. Mr Reid told the applicant he would let him know when he was needed to work again. Mr Reid claimed that he was intimidated by this visit, especially by Mr McGrath's brother, who he said was a large framed person who did not speak during the visit.

39 Mr McGrath returned to work at the site on 18 January 1999 on light duties. The crusher recommenced operations on 19 January 1999 and Mr McGrath was assigned as a belt picker. Mr Pannett was re-engaged as a standby belt picker. Mr Reid stated that, he chose Mr Pannett in preference to the applicant because of the applicant's attitude on 12 January 1999. The respondent appointed a worker from another site of the respondent to operate the crusher. This was a temporary appointment until the worker was permanently assigned to another role.

40 On 20 January 1999, the applicant attended the site and saw Mr Reid and Mr Jackson. He asked why he was not employed to operate the crusher. Mr Jackson stated that, it was Mr Reid's decision who to employ. The applicant insisted that he should be employed as the loader. Mr Reid told the applicant that the respondent did not have a need for him at that stage. Mr Jackson stated that, as the applicant was a casual worker, the respondent was able to decide not to engage him if there was no work available.

41 The applicant asked why he could not operate the crusher and Mr Jackson stated that he was concerned about the applicant's ability to work the crusher safely and to maintain his balance and avoid falling into or off the crusher. The applicant stated that he told Mr Reid and Mr Jackson that he considered he had been discriminated against. He stated that Mr Reid laughed and gestured to him to leave and said, "We no longer require your services." The applicant did not return to the site again for work.

42 On 29 January 1999, Mr Reid contacted Mr McGrath's doctor and was told that Mr McGrath could return to pre-injury duties. Mr McGrath did not attend work on 29 January 1999 and on 1 February 1999, Mr Reid challenged Mr McGrath about his absence and inconsistencies in his claim of injury. A heated exchange took place between Mr Reid and Mr McGrath. The consequence was that Mr Reid applied for and obtained, without opposition, an AVO against Mr McGrath. In his evidence to the Tribunal, Mr McGrath stated that, he became enraged in his exchange with Mr Reid when he asked Mr Reid about the position of the applicant and that Mr Reid said:

"I will have no fucking cripple working on my job site."

43 Mr McGrath stated that he became emotional because he had a disabled daughter. Mr Reid denied making the statement alleged by Mr McGrath. The applicant points to Mr McGrath's version of Mr Reid's statement to him as confirmation of the reason for the discrimination to which he alleged he was subjected in the termination of his employment with the respondent.

44 The Tribunal is satisfied that the applicant has failed to substantiate his complaint of discrimination arising out of his termination. The applicant bears the onus of establishing that the discrimination has occurred, on the balance of probability. Applying this test, the Tribunal is not satisfied that the applicant's role with the respondent was other than as a belt picker. On occasions he undertook, on his own initiative, other tasks. On these occasions, there was no permanency in the assumption of roles.

45 From 5 January 1999 to 11 January 1999, at the direction of the site manager, he worked as the crusher operator. This occurred during a period of exigency following the sudden departure on sick leave of the key member of the plant operation. This required a re-arrangement of duties. These events took place during a period of unrest in the workplace. The management saw the applicant as the focus of that unrest - unjustifiable as it subsequently transpired. The adverse attitude to the applicant by the respondent managers to this activity of the applicant was not connected to his disability. This temporary engagement of the applicant as the crusher operator did not change his basic role.

46 Although he undertook the role of loader operator from time to time, there was no official sanction to this assumption of duties. At best, it may be said that management condoned the practice of switching of roles. The Tribunal is unable to find that the activities undertaken by the applicant materially altered his role during his employment with the respondent to the extent that he became a loader operator or the operator of the crusher.

47 In examining the claim of compensation arising from the refusal by the managing director, Mr Jackson, to allow the applicant to continue to operator the crusher, the Tribunal firstly does not agree that the applicant had any basis for considering that he should be appointed to the position of crusher operator when the crusher re-commenced its operation. He was not, in the view of the Tribunal, a casual worker employed to operate the crusher. He only fulfilled that role by the switching process and once formally on a temporary basis.

48 Secondly, the Tribunal agrees with the view taken by Mr Jackson that the operation of the crusher by the applicant was unsafe. It is plainly potentially harmful for the applicant to extract material from the crusher by using the crook end of his walking stick and to lean over the crusher balanced on one foot to extract material on the far side of the crusher. It is for his benefit that the applicant should be prohibited from these undertakings.

49 Thirdly, although the termination of his employment on 20 January, was not directly connected with the prohibition of his continuing to operate the crusher, management was influenced by that prohibition in considering the options to re-engage him at that time. He was not able to operate the crusher nor was he licensed to take control of the loader. This left the position of belt picker for which Mr Pannett had been preferred to the applicant.

50 Management of the respondent had formed an adverse opinion of the applicant's attitude towards them at that time. They were entitled to make the choice of preferring Mr Pannett as the belt picker. That choice, in the view of the Tribunal, was not influenced by considerations of the disability of the applicant.

51 Fourthly, the applicant pointed to the evidence of Mr McGrath about his confrontation with Mr Reid on 1 February 1999 and the statement which Mr McGrath alleges was made by Mr Reid. The applicant submitted that this statement shows that the applicant's disability was the cause of his termination on 20 January 1999. The Tribunal is required to determine whether it should prefer the evidence of Mr McGrath concerning this statement or the denial by Mr Reid that he did not make the statement.

52 There is little to guide the Tribunal in making this choice. Mr McGrath, in giving his evidence, did not present as untruthful nor did Mr Reid. Mr Reid showed a tendency to be irascible when challenged but not to the extent where the tribunal could say that he was untruthful. In the statement he made in support of his summons for the AVO against Mr McGrath made on 2 February, Mr Reid does not refer to the statement allegedly made by him to Mr McGrath. This in itself is not conclusive but, in the absence of any defence by Mr McGrath to the summons, is an indication that Mr McGrath accepted that Mr Reid was entitled to pursue the application for the AVO and he was not provoked by a statement of the nature which Mr McGrath now states caused him to threaten Mr Reid.

53 In these circumstances, and on the balance of probability, the Tribunal is not satisfied that the statement as alleged by Mr McGrath was made by Mr Reid. Even if Mr Reid made that statement on 1 February 1999 to Mr McGrath, it would be a statement post the event of the termination of the applicant's employment. The applicant cannot now raise the statement as an act of discrimination, the subject of his complaint, to the Anti-Discrimination Board as he had not included that claim in his complaint.

54 The alleged statement is available to the applicant by way of confirmatory material to support his claim that on 20 January 1999 he was discriminated against because of his disability. The Tribunal is not satisfied that it should either accept the statement of Mr McGrath or that the statement, if made on 1 february 1999, would be sufficient to establish that the termination of the applicant's employment on 20 January 1999 was on the ground of his disability.

55 In summary, the Tribunal is not satisfied that the respondent unfavourably treated the applicant in the circumstances of the termination of his employment less favourably than the respondent would have treated a person without that disability or that the reason for his termination was on the ground of his disability.

56 The Tribunal accordingly directs that the complaint be dismissed. Counsel for the respondent indicated that he wished to reserve an application for costs in the event that the Tribunal dismissed the complaint. That is noted and if there is to be an application for costs, that should be made on a separate occasion.