O'HANLON v Williams
[2017] FCCA 381
•3 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O'HANLON v WILLIAMS & ORS | [2017] FCCA 381 |
| Catchwords: HUMAN RIGHTS – Disability discrimination – whether Disability Discrimination Act 1992 (Cth) is capable of applying to deeds of release – whether Court has jurisdiction to set aside deed of release in circumstances where it has been entered into as a consequence of unlawful discrimination. HUMAN RIGHTS – Disability discrimination – indirect discrimination – teacher with claimed psychological disability is investigated in relation to incident – employer represents to teacher it has preliminary view the teacher’s employment should be terminated – employer does not terminate teacher’s employment but at the request of the teacher enters into a deed under which teacher resigns and mutual releases are given – whether in those circumstances the employer dismissed teacher – whether employer required teacher to execute the deed and do other things (Asserted Requirements) – whether the Asserted Requirements, if imposed, constituted the conduct or formed part of the conduct by which the employer dismissed the teacher – if the employer imposed the Asserted Requirements whether a substantially higher proportion of persons without the teacher’s disability comply or are able to comply with those requirements – whether if the Asserted Requirements were imposed it was reasonable to do so having regard to the circumstances of the case – whether if the Asserted Requirements were imposed the teacher in any event complied with the requirements – whether after teacher executed deed by which she resigned her position as teacher the employer required the teacher to comply with the Asserted Requirements – assuming employer required the now former teacher to comply with the Asserted Requirements whether the former teacher nevertheless was an “employee” within the meaning of s.15(2)(d) of the Disability Discrimination Act 1992 (Cth). |
| Legislation: Anti-Discrimination Act 1977 (NSW), s.24(3) Trade Practices Act 1974 (Cth), s.52(1) |
| Cases cited: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 |
| Applicant: | WENDY O'HANLON |
| Second Respondent: | BRAITH WILLIAMS |
| Third Respondent: | PROFESSOR DAVID BARKER |
| Fourth Respondent: | FRED CHILTON |
| Fifth Respondent: | PROFESSOR WAI FONG CHUA |
| Sixth Respondent: | PETER GAYDON |
| Seventh Respondent: | RODGER PARKER |
| Eighth Respondent: | SONIA POWELL |
| Ninth Respondent: | PETER SJOQUIST |
| Tenth Respondent: | JOHN OLDMEADOW |
| Eleventh Respondent: | MARY SMITH |
| File Number: | SYG 1216 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Harmer |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the Respondents: | Ms K Eastman SC |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The proceeding is dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
Subject to order 3, the applicant pay the respondents’ costs.
The parties have liberty to apply within fourteen days for an order to discharge or vary order 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1216 of 2015
| WENDY O'HANLON |
Applicant
And
| BRAITH WILLIAMS |
Second Respondent
| PROFESSOR DAVID BARKER |
Third Respondent
| FRED CHILTON |
Fourth Respondent
| PROFESSOR WAI FONG CHUA |
Fifth Respondent
| PETER GAYDON |
Sixth Respondent
| RODGER PARKER |
Seventh Respondent
| SONIA POWELL |
Eighth Respondent
| PETER SJOQUIST |
Ninth Respondent
| JOHN OLDMEADOW |
Tenth Respondent
| MARY SMITH |
Eleventh Respondent
REASONS FOR JUDGMENT
Introduction
The respondents, relying on s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth), apply for an order that the proceeding be dismissed on the ground that the applicant has no reasonable prospects of successfully prosecuting the proceeding. The respondents also apply for a permanent stay of the proceeding on the ground that it is an abuse of process because, among other things, the applicant unreasonably delayed commencing the proceeding.
The proceeding concerns, in substantial part, a deed dated 7 December 2007 made between the applicant and the respondents (Deed). At the time she executed the Deed the applicant was employed as a teacher at Pymble Ladies’ College (PLC), and the respondents (Council) were members of the Council of PLC. The Council managed PLC’s assets, and employed its teachers and other staff.
The applicant and the Council made the Deed after PLC’s principal, Ms Waters, raised with the applicant concerns she had with particular conduct of the applicant, the details of which it will be unnecessary to set out in these reasons; and after the Council informed the applicant it had reached the “preliminary view” that, among other things, it had lost confidence in the applicant’s judgment, and that the applicant’s employment should be terminated without notice. The Deed records terms that include the applicant’s resigning her position from PLC, the applicant’s releasing the Council and others from any claims the applicant may have had against the Council and others, and the applicant and the Council agreeing to keep the settlement confidential.
The applicant seeks, among other things, an order that the Deed be set aside. In broad terms the applicant claims that, when she executed the Deed, she suffered from psychological disabilities; Ms Waters, on behalf of the Council, required the applicant (among other things) to execute the Deed; by requiring the applicant to execute the Deed while the applicant suffered from her disabilities, the Council indirectly discriminated against the applicant because of her disabilities; and, for these reasons, the Council engaged in unlawful discrimination, contrary to s.15 of the Disability Discrimination Act 1992 (Cth) (DD Act) as that Act applied in December 2007.[1] The applicant also claims the Council engaged in unlawful discrimination against her in relation to communications the applicant sent to the Council after she executed the Deed.
[1] The applicant alleges the respondents contravened s.15(2)(c) of the DD Act as that Act applied from 27 March 2006 until 30 June 2009. My reference to provisions of the DD Act, therefore, will be a reference to the DD Act as it existed during this period.
For its part, the Council submits the Deed bars the applicant from bringing these proceedings, the Court in any event has no jurisdiction to set aside the Deed and, if the Court does have jurisdiction, the applicant has no reasonable prospects of succeeding in obtaining an order that the Deed be set aside on the ground that the Council engaged in unlawful discrimination contrary to s.15 of the DD Act.
Before I consider the Council’s application, it will be necessary to set out the alleged facts on which the applicant relies; other evidence relevant to the applicant’s claims and to the Council’s application; and the claims the applicant makes on the basis of the alleged facts on which she relies.
Alleged facts on which applicant relies
The applicant commenced her employment as a teacher with PLC on 16 April 1991.[2]
[2] Points of claim, [5]
Events leading to execution of Deed alleged in the points of claim
On 27 November 2007 the applicant was handed a letter dated 27 November 2007 from Ms Waters, the Principal of PLC.[3] The letter referred to a particular incident (Incident), and directed the applicant not to discuss the Incident with anyone from PLC. The applicant was “outwardly distressed” when she was given the letter, stating she would rather “go to jail for a month than go through all of this”.[4]
[3] Points of claim, [13]
[4] Points of claim, [16]
Later on the same day the applicant met with Ms Waters who gave the applicant another letter, also dated 27 November 2007.[5] That letter contained a number of questions relating to the Incident, and required the applicant to answer those questions, either in writing or at a meeting that was scheduled to occur on 28 November 2007.[6] The applicant experienced increased heart palpitations and clammy hands, she was visibly distressed, and she burst into tears.[7]
[5] Points of claim, [14]
[6] Points of claim, [14]
[7] Points of claim, [17]
On 28 November 2007 the applicant met with Ms Waters and another teacher to provide answers to the questions contained in the second letter of 27 November 2007.[8] During that meeting, the applicant experienced panic, rapid heartbeat, and clammy hands,[9] and thus displayed “a series of symptoms which should have put PLC on notice that the Applicant was not well mentally or psychologically”.[10]
[8] Points of claim, [15]
[9] Points of claim, [18]
[10] Points of claim, [19]
The applicant met with Ms Waters on 3 December 2007. Also present were Ms Harding, from Minter Ellison, and Mr Hewett, from Bradfield & Scott. Ms Harding attended the meeting as the Council’s legal representative, and Mr Hewett attended as the applicant’s legal representative.[11] Ms Harding said Ms Waters could not trust the applicant’s performance of her duty of care, and the applicant’s conduct had put PLC’s reputation at risk.[12] The applicant experienced a variety of symptoms of anxiety, these being rapid heartbeat, poor concentration, impaired cognitions and ability to comprehend, and clammy hands.[13]
[11] Points of claim, [20]
[12] Points of claim, [21]
[13] Points of claim, [22]
On 4 December 2007 Mr Hewett informed the applicant Ms Waters did not want the applicant to remain employed at PLC, and that the applicant could fight the decision or leave with her departure described as retirement.[14] The applicant was aware other teachers who had retired had been invited back to PLC to teach on a casual basis. “Given her mental state, the Applicant assumed if her leaving was described as a “retirement” she would have that opportunity”.[15]
[14] Points of claim, [23]
[15] Points of claim, [24]
The applicant has set out in her affidavit what occurred on 4 December 2007:[16]
On 4 December 2015, I went to Mr Hewett’s office. Mr Hewett said to me words to the effect of:
“Vicky Waters doesn’t want you back. You can fight this decision, or you can sign this deed of release and retire for personal reasons, on Saturday at speech day.”
[16] Affidavit of W J Hanlon, 26.11.2015, [52] - [53]
I was completely shocked that after my years in the PLC Community, I would just be made to leave.
On 7 December 2007 Mr Hewett provided to the applicant a draft of the Deed Ms Harding had provided to him. Mr Hewett informed the applicant she should read the Deed, and ask questions if she did not understand it.[17] According to the points of claim:[18]
The Applicant attempted to read the Deed, but the Applicant:
(a)could not understand the legal terminology due to her fragmented and erratic thought processes;
(b)suffered from an incoherent state of mind;
(c)experienced rapid heartbeat to the point of palpitation; and
(d)felt nauseated, shaky and upset.
As a result of these symptoms, the Applicant did not continue to attempt to read the Deed. The Applicant merely signed the Deed as she understood she was required by PLC to do so.
[17] Points of claim, [25]
[18] Points of claim, [26]-[27]
Events leading to execution of Deed not referred to in points of claim
There is before me evidence of events that occurred before the applicant executed the Deed which are not referred to in the points of claim. First, there is a letter dated 4 December 2007 Ms Harding of Minter Ellison sent to Mr Hewett.[19]
[19] Exhibit A
Ms Harding’s letter referred to the meeting of 3 December 2007, noted that PLC had previously requested the applicant not attend work until further notice, but that the applicant was no longer prepared to agree to that arrangement, and that PLC was suspending the applicant with pay until further notice. The letter then identified the matters raised “by the College in today’s meeting”. The letter referred to the occasions on which PLC spoke to the applicant about the Incident (23, 27, and 28 November 2007), and attached a document that set out the issues arising out of the applicant’s version of events. The letter then described the “core issue” for PLC and the concerns PLC had as a result of responses the applicant gave to questions asked at the meetings held on 23 and 28 November 2007. The letter stated it was PLC’s “preliminary view” that, among other things, it had lost confidence in the applicant’s judgment, and that the applicant’s employment should be terminated without notice. The letter concluded:
In those circumstances, if there is any further information Ms O’Hanlon wishes to provide for the College to consider in relation to the matters raised in this letter, or any response Ms O’Hanlon would like to make to the College’s preliminary view could you please provide such a response by 12.00pm on Thursday 6 December 2007.
Second, there is a “without prejudice” letter dated 5 December 2007 Mr Hewett sent to Ms Harding in which Mr Hewett informed Ms Harding he had “specific instructions from our client” to resolve the matter on the basis set out in the letter. [20] Mr Hewett’s letter then set out six terms. These included the applicant’s announcing her retirement from teaching at PLC, PLC waiving strict compliance with the notice period required by the applicant’s letter of appointment dated 16 April 1991, and PLC paying the applicant up to and including 28 February 2008. The sixth term set out in Mr Hewett’s letter was as follows:
[20] Exhibit B
The parties enter into a formal Deed of Release which is to provide, in addition to the normal provisions, the following:
(a) a mutual no disparagement clause;
(b)an acknowledgment by Mrs O’Hanlon that PLC may, in its view, need to submit reports to Government entities in discharging its statutory obligations arising out of the [Incident] . . .
(c)Mrs O’Hanlon to be entitled to make any submission to the relevant authorities arising out of any such reports . . .
Mr Hewett concluded his letter as follows:
Having regard to the telephone discussions with your Ms Harding late yesterday afternoon, we have abstained from undertaking any work referring to the provision of our submissions in accordance with our open letter of even date.
We look forward to receiving your urgent advices in relation to the above proposal so as to ensure that all relevant documentation can be put in place to enable the appropriate announcement to be made this coming Saturday.
Third, there is a strong suggestion in the evidence that Mr Hewett provided written advice to the applicant before Mr Hewett sent his letter dated 5 December 2007 to Ms Harding. The suggestion is made in a report dated 24 January 2014 prepared by Dr Phillips.[21] Under the heading “Documents”, Dr Phillips said he considered “all the documents made available to me”, and then summarised “only those documents which are of immediate relevance to this report”. The first document is described as “Your letter of instructions 25 November 2013”, and Dr Phillips referred to a chronology of events (Harmers Chronology). The report then sets out “the more significant issues”. These include the following:
· On 5 December 2007, Mr Hewett informed Ms O’Hanlon that her employment with PLC was going to be terminated, and that she could either take action against the decision or retire for personal reasons. The plaintiff elected to retire.
· On that day Mr Hewett wrote to Ms O’Hanlon setting out his advice. Additionally, on that day, Mr Hewett wrote a letter to Minter Ellison outlining his instructions from Ms O’Hanlon.
[21] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-3”
Applicant’s execution of the Deed
The applicant has set out in her affidavit the circumstances in which she says she executed the Deed:[22]
On 7 December 2007, I went back into Mr Hewett’s office to sign the Deed of Release.
Mr Hewett gave me the Deed of Release, and said words to the effect of:
“Here is the deed of release. Read through it very carefully, and if you have any questions, you can ask Nicholas who’s sitting there. I’m just going out to make a cup of coffee.”
[22] Affidavit of W J Hanlon, 26.11.2015, [54]-[58]
I started to read through the Deed of Release.
As I was reading, my eyes went blurry and I could not understand the words that were there. Then, I started to shake, and I got heart palpitations.
I did not finish reading the Deed of Release. I simply signed the Deed of Release and left the office crying, and ran down the street.
The applicant alleges that, at the time of these events, she was suffering from disabilities. These were “Acute Dissociative Disorder (Not otherwise specified) (DSM-IV-TR code 300.15)” or “Adjustment Disorder with mixed anxiety and depressed mood (DSM-5 309.28)”, or both.[23] These disabilities are alleged to have been manifested by symptoms that consisted of “substantive depressive thoughts or ruminations”, “high levels of anxiety”, “psychophysiological concomitance of anxiety”, “trauma-related symptoms including flashbacks”, and “dissociative mechanisms”.[24] The points of claim refer to three reports prepared by consultant psychiatrists, two by Dr De Saxe, one dated 15 March 2010 (First De Saxe Report) and the other 25 July 2011 (Second De Saxe Report), and one by Dr Phillips dated 24 January 2014 (Phillips Report). I admitted these reports subject to relevance. I find the reports are relevant to the extent they describe the disabilities from which the applicant claims she suffers.
[23] Points of claim, [28], paragraph (iii) of particulars
[24] Points of claim, [28], paragraph (iv) of particulars
Terms of the Deed
The applicant executed the Deed.[25] Under the Deed the applicant released “the Beneficiaries from” and indemnified “them against the Circumstances”. “Beneficiaries” is defined in cl.1.1 to mean “Members of the Council of Pymble Ladies’ College, the Uniting Church in Australia Property Trust (NSW) and each of their current and former council members, officers and employees”. “Circumstances” is defined in cl.1.1 to mean:
any or all present and future Claims, whether known or unknown, in any way relating to the matters recited, the Employment, the terms of the Employment, the Employment Contract, the matters raised in the Meetings, the matters raised in the Letter, the matters raised in the Enquiries and the Resignation except for and Claims for workers’ compensation under applicable workers’ compensation legislation from which the Employee cannot give a release under this deed.
[25] Affidavit of V L Waters, 06.11.2015; annexure VW-1
As is suggested by the definition of “Circumstances”, its scope is to be determined by other parts of the Deed and, in particular, the “matters recited”. These are as follows (emphasis in original):
A.The Employee [i.e., the applicant] commenced employment with the College [i.e., the Members of the Council of Pymble Ladies’ College] as a teacher on 15 April 1991 in the Junior School of the College (Employment).
B.The Employee was employed under the terms of a contract of employment executed by the parties on or around 16 April 1991 (Employment Contract).
C.The College and its representatives met with the Employee on 23, 27 and 28 November 2007, and 3 December 2007. During these meetings, the College raised certain concerns with the Employee about her conduct on 21 and 22 November 2007 (Meetings).
D.The College has undertaken preliminary enquiries in relation to the Employee’s conduct on 21 and 22 November 2007 including meeting with [a number of named individuals] (Enquiries).
E.The College’s solicitors, Minter Ellison, sent a letter (including an attachment) to the Employee on 4 December 2007 about her employment with the College (Letter).
F.The Employee by this Deed resigns her employment with the College effective 10 December 2007 (Resignation).
G. The Employee and the College, without admitting liability, have reached agreement on the terms set out in this deed.
Events after execution of the Deed
Some ten months after she executed the Deed, the applicant sent PLC a letter dated 7 October 2008.[26] It appears the applicant sent this letter after she sought legal advice. That appears from the Harmers Chronology which refers to the applicant on 18 September 2008 seeking legal advice from Carroll & Odea “regarding her former employment and the settlement with PLC”.[27]
[26] Affidavit of V L Waters, 06.11.2015; annexure VW-3
[27] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-3”, page 11
In her letter the applicant referred to the “cessation” of her employment effective from 7 December 2007, and stated she “had time to reflect and also to take further advice on what occurred at the time”. The applicant set out what she claimed was common knowledge of the circumstances that arose at the time she signed the Deed, and then stated “matters to ensure that no other employee of the College is subjected to, and suffers in the way” the applicant suffered. These “matters” are stated in 14 numbered paragraphs. They include the following:
5.My “planned retirement” could only be described as a “constructive dismissal” especially in circumstances where I was threatened with summary dismissal if I spoke to material witnesses.
. . .
8.I am advised that the Australian Industrial Relations Commission, when considering whether a termination was harsh, unjust or unreasonable, requires a consideration of the whole of the employment relationship between an employer and an employee. I contend that was not the case when considering my position.
. . .
13.My treatment, gagging and termination seemed to be an over reaction. I felt bullied throughout the whole process.
14.Since my termination I have felt isolated as a result of my inability to communicate the true facts of what had actually occurred.
The applicant made no demand in the letter. She concluded she wished to bring the matters she had set out in the letter to the attention of PLC “in the hope that in future, fair and proper procedure is followed to ensure that all teachers at the College are afforded due process and a fair hearing”.
PLC responded by letter dated 23 October 2008.[28] The author of the letter stated her belief that PLC acted fairly and appropriately in relation to the applicant’s employment. The letter then referred to a number of matters. These included the claims that the applicant was “clearly advised of the College’s concerns” about the applicant’s conduct and its preliminary view that the applicant’s employment should be terminated; that the applicant was legally represented and was able to raise any issue she wished to raise about the process and the applicant’s conduct; and the applicant received legal advice about the terms and effect of the Deed.
[28] Affidavit of V L Waters, 06.11.2015; annexure VW-4
On the evidence before me, the applicant did not send any further correspondence to PLC until she sent a letter dated 14 January 2010.[29] The letter was addressed to Ms Waters as principal of PLC. The letter began by the applicant stating she wished to refer to the termination of her employment with PLC. After noting a number of matters, the applicant said she realised she should meet with Ms Waters “to discuss what has passed in order to assist me to accept certain matters and to address a possible compromise between myself and the school”. The applicant said her proposal was to meet with Ms Waters “to discuss potential opportunities for the application of” her “social development teaching skills at PLC and possibly part-time teaching as has been offered to other retired teachers”. The applicant also stated the following:
At the time of the termination of my employment, I was already distracted by my preparations for an overseas trip, I did not wish to enter into a dispute with the school and was incredulous and extremely stressed by the inferences that were apparently being made. This had affected me in such a way that when I was given the document (the deed of release) to sign, I simply signed the document under the pressure of the circumstances.
[29] Affidavit of V L Waters, 06.11.2015; annexureVW-5
Ms Waters, on behalf of PLC, responded by letter dated 22 March 2010.[30] Ms Waters repeated the concerns PLC had with the applicant in November 2007 and said that PLC continued to have those concerns. Ms Waters said she did not propose to discuss the applicant’s re-employment with the applicant. Ms Waters also said:
In relation to the comments you make about the deed of release, I note that prior to a final decision being made about the termination of your employment an agreement was reached between you and the College under which you resigned your employment and received certain payments. You signed a deed of release and agreed to ongoing obligations in relation to confidentiality and no adverse comment. Throughout this process you were legally represented and you received legal advice about the terms and effect of the deed.
[30] Affidavit of V L Waters, 06.11.2015; annexure VW-6
On 7 September 2010 the applicant, this time through her lawyers, Harmers, sent another letter to PLC.[31] Harmers claimed the applicant received medical assistance after she entered into the Deed, that a clinical psychiatrist had recently prepared a report about the applicant, “specifically in relation to the effects which the events leading up to her entry into the Deed may have had on her mental state”, and that, according to that report, the applicant was likely suffering from “an Accurate Dissociative Disorder, characterised by the experience of “feeling compelled from within the psyche to behave in an uncharacteristic way”, and that the applicant’s “capacity to make well-informed decisions was impaired by a mental disorder at the time she signed Deed”. After referring to two cases, the letter claims that, “[a]bsent the Deed, and in all the circumstances”, the applicant “has a number of causes of action against PLC concerning the circumstances of the conclusion of her employment and subsequent events”. The letter concludes by noting the applicant wished to meet with PLC “to discuss how this matter may be resolved”.
[31] Affidavit of V L Waters, 06.11.2015; annexure VW-7
PLC responded by their solicitor’s letter dated 28 September 2010.[32] After setting out what it described as background, the letter stated, among other things, that Harmers did not claim the applicant executed the Deed in the belief it was something radically different from what she did execute, and that PLC did not believe there was any legal basis for a court to set aside the Deed.
[32] Affidavit of V L Waters, 06.11.2015; annexure VW-8
The matters there stood until around 25 July 2013 when the applicant sent a letter of that date to Mr Williams, the Chairman of PLC.[33] The applicant requested to meet with Mr Williams and PLC “in regard to the events which occurred” on 23 November 2007. The applicant said she attempted, without success, to obtain full-time teaching after she left PLC, and that the casual work she had been able to secure has been insufficient to enable her to pay the mortgage on her house. She said the reason for her letter was that the applicant found “it so difficult to move forward professionally and emotionally when my duty of care at the College has been questioned without any real explanation” having been given to the applicant. The applicant also said:
I do not seek to re-open the legal issues of the past at any hearing you may provide to me – despite my severe reservations about what happened to me and the deal which was legally concluded whilst I was suffering from a now diagnosed psychiatric injury from the shock of how PLC was treating me over the issue. I do however seek to plea in mitigation of the penalty which has effectively been imposed upon me as my life has played out over the past five (5) years – that penalty has not been commensurate with whatever offence the school at that time believed I had caused. I plead that the school may reach out to me in compassion and save me from losing my home and, potentially, my mind. I seek assistance in restoring my respect, dignity and life in the wake of this matter.
[33] Affidavit of V L Waters, 06.11.2015; annexure VW-9
Mr Williams responded by letter dated 1 August 2013.[34] He stated the “college’s position has not changed”.
[34] Affidavit of V L Waters, 06.11.2015; annexure VW-10
On 3 October 2014 the applicant sent another letter to Mr Williams.[35] The applicant said she wanted to bring to Mr Williams’ attention “certain facts surrounding the Deed and the impact it has had on me”. The applicant stated that she was unwell when she signed the Deed, “a fact I did not realise for some time”. She noted that two consultant psychiatrists agreed the applicant suffered from at least one disability which rendered the applicant “unable to understand the deed or to make a rational, objective and balanced decision to sign the document”. The applicant also stated what she claimed was the impact of the Deed. The applicant noted she expected she would be able to return to PLC to teach on a casual basis. The applicant requested the Council “reverse the impact of the Deed, which I would never have signed but for my disability”. The applicant requested she be given an opportunity to address the Council so that it could understand the applicant’s actions in relation to the Incident, and that she “be able to count [herself] as part of the PLC community and to earn some income”.
[35] Affidavit of V L Waters, 06.11.2015; annexure VW-11
Mr Williams responded on behalf of the Council by letter dated 23 October 2014.[36] Mr Williams said the applicant was given every opportunity to respond to the matters that caused the Council concern about the applicant’s conduct, and the applicant was legally represented at the time. After making additional comments, Mr Williams concluded the letter by stating that the “College regards the matter as closed”.
[36] Affidavit of V L Waters, 06.11.2015; annexure VW-12
Applicant’s claims
Based on the facts alleged in the points of claim, the applicant claims as follows:
a)the Council’s actions leading up to the applicant’s execution of the Deed imposed a requirement or condition that the applicant:
i)deal with the issue of her ongoing employment at PLC;
ii)make statements and decisions concerning that issue; and
iii)sign the Deed
while suffering from the disabilities which impacted her ability to take any of those steps;[37]
b)a substantially higher portion of persons without the disabilities from which the applicant suffered comply with, or are able to comply with, the requirements or conditions referred to in (a), as they are able properly to consider whether or not to sign a deed of release and therefore are able to properly comply with the requirements or conditions that were imposed on the applicant;[38]
c)the requirements or conditions referred to in (a) were not reasonable having regard to the applicant’s being unable to comprehend the Deed as it was presented to her, or to make a rational, objective, and balanced decision to sign the Deed, because of her disabilities;[39]
d)the applicant was not able to comply with the requirements or conditions referred in (a) because of her disabilities;[40]
e)as a consequence of (a)-(d), the Council unlawfully discriminated against the applicant within the meaning of s.6 of the DD Act;[41] and
f)the Council unlawfully discriminated against the applicant in her employment in contravention of s.15(2)(c) of the DD Act.[42]
[37] Points of claim, [39]
[38] Points of claim, [40]
[39] Points of claim, [41]
[40] Points of claim, [42]
[41] Points of claim, [43]
[42] Points of claim, [45]
The applicant further claims that the Council imposed a further requirement or condition that the applicant comply with the earlier requirements and conditions; and that, by refusing to reverse the impact of requiring the applicant to comply with the earlier requirements and conditions, the Council engaged in discrimination against the applicant by subjecting her to detriment, contrary to s.15(2)(d) of the DD Act.[43]
[43] Points of claim, [46]-[49]
Does the Deed bar the applicant’s claims?
It appears to be assumed by all parties that, unless it is set aside, the Deed bars the applicant’s claims. The correctness of that assumption, however, must be considered. In particular, it is necessary to consider whether the release contained in the Deed is wide enough to cover the claims the applicant makes in these proceedings. That is a question of construction. The particular question is whether the applicant’s claims relate to the “Circumstances” as defined in the Deed.
The general approach to the construction of contracts was described by Heydon and Crennan JJ in Byrnes v Kendle:[44]
Contractual construction depends on finding the meaning of the language of the contract – the intention which the parties expressed, not the subjective intentions which they may have had, but did not express. A contract means what a reasonable person having all the background knowledge of the “surrounding circumstances” available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of “surrounding circumstances”.
[44] [2011] HCA 26 at [98] (references to cases omitted)
In Bank of Credit and Commerce International SA v Ali Lord Bingham considered the application of these principles to releases:[45]
I consider first the proper construction of this release. In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties' relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties' intentions the court does not of course inquire into the parties' subjective states of mind but makes an objective judgment based on the materials already identified…
A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention…
[45] [2002] 1 AC 251
The release provided for in the Deed applies “in relation” to a number of identified “matters”. These are the applicant’s “Employment”, the “Employment Contract”, the “Meetings”, the “Enquiries”, the “Letter”, and the “Resignation”, as these terms are defined in the recitals to the Deed. In my opinion, there is no doubt that the claims the applicant makes in the proceeding are covered by the release contained in the Deed. The parties, therefore, are correct in their assumption that, unless the Deed is set aside (or varied), the applicant cannot maintain this proceeding.
Does the Court have jurisdiction to set aside the Deed?
That the release is wide enough to cover the applicant’s claims does not necessarily bar these proceedings if the applicant has reasonable prospects of succeeding in her claim that the Deed be set aside. As has been said of agreements to compromise claims:[46]
The question whether [a] compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, [on] grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
[46] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at [9]
The Council submits the Court does not have jurisdiction to set aside the Deed on equitable grounds. That submission, however, is not relevant, because the applicant does not rely on any equitable grounds for setting aside the Deed; she relies entirely on the Council having contravened s.15 of the DD Act. Even so, the Council submits that even if the applicant were to establish the Council engaged in unlawful discrimination, contrary to s.15 of the DD Act, “such a finding does not and could not operate to void or invalidate the Deed”.[47] Whether that submission is correct depends on the DD Act and the relevant provisions that deal with the legal consequences of unlawful discrimination proscribed by Part 2 of the DD Act.
[47] Respondents’ Submissions in Support of Application in a Case, [28]
Unlawful discrimination under the DD Act
Part 2 of the DD Act defines various species of unlawful discrimination by one person against another person on the ground of the other person’s disability. Relevant to the applicant’s claims is s.15(2) of the DD Act which deals with discrimination in employment. Subsection 15(2) of the DD Act provides:
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(a) in the terms or conditions of employment that 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.
This provision, as with all other provisions in the DD Act that proscribe unlawful discrimination, must be read with s.5 and s.6 of the DD Act. Section 5 of the DD Act provides:
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Section 6 of the DD Act provides:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
The manner in which s.15(2) of the DD Act is to be read with s.5 and s.6 of the DD Act requires some attention. Sections 5 and 6 of the DD Act are not definitions of terms that constitute an element or elements of the prohibitions of unlawful discrimination provided for in Part 2 of the DD Act. That is, the words in s.5 and s.6 are not to be, because they cannot as a matter of syntax be, substituted for particular words contained in the various prohibitions of unlawful discrimination contained in Part 2 of the DD Act. Sections 5 and 6 are intended to play a different role; they constitute standards by reference to which the conduct described in the particular provisions of Part 2 of the DD Act are to be assessed as having, or not having, the character of unlawful discrimination. That suggests that the determination of an allegation that particular conduct constitutes unlawful discrimination under a particular provision of Part 2 of the DD Act requires consideration of one or two questions. The first is whether the alleged conduct is conduct of the sort identified by the relevant provision. The second is: if the conduct is of the sort identified by the relevant provision, does the conduct constitute discrimination by one person against another in the sense required by s.5 or s.6 of the DD Act?
This may be illustrated where, as in the proceeding before me, it is alleged a person has engaged in unlawful discrimination contrary to s.15(2) of the DD Act. The first question would be whether the employer’s alleged conduct, if proved, falls within the conduct identified in s.15(2) of the DD Act. That is, has the employer:
a)afforded terms and conditions to the complainant, or
b)denied or limited the complainant to access to opportunities in his or her employment, or
c)dismissed the complainant, or
d)otherwise subjected the complainant to any other detriment?
If that question is answered in the affirmative, the next question would be whether the conduct by which the employer did one or more of these things can properly to be characterised as the employer discriminating against the complainant in the sense prescribed by s.5 or s.6 of the DD Act.
Consequences of engaging in unlawful discrimination
None of the provisions of Part 2 of the DD Act “purport[s] to create liability, nor does it vest in any party any cause of action in the ordinary sense of that term”. Each such provision “establishes a norm of conduct, and failure, by the corporations and individuals to whom it is addressed in its various operations, to observe that norm has consequences provided for elsewhere…”. [48] Those consequences are provided for in Div.2 of Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Of particular relevance is s.46PO(4) of the AHRC Act, which provides:
[48] Re Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1988] FCA 373; (1988) 19 FCR 469 at [20]. These observations were made in relation to s.52(1) of the Trade Practices Act 1974 (Cth), but they equally apply to the DD Act and to the Australian Human Rights Commission Act 1986 (Cth).
If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(d)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(e)an order declaring that it would be inappropriate for any further action to be taken in the matter.
The expression “unlawful discrimination” is defined in s.3 of the AHRC Act to mean “any acts, omissions or practices that are unlawful under”, among other provisions, Part 2 of the DD Act.
The Council submits that if the Court were to find the Council contravened s.15(2) of the DD Act “such a finding does not and could not operate to void or invalidate the Deed”.[49] The Council submits the DD Act “has no application to deeds of release”, and has “no operation with respect to any aspect of conduct in relation to negotiating deeds of release or executing deeds of release”.[50] I do not accept these submissions.
[49] Respondents’ Submissions in Support of Application in a Case, [28]
[50] Respondents’ Submissions in Support of Application in a Case, [26]
No provision of Part 2 of the DD Act expressly excludes from its operation deeds of release, or negotiations leading to the execution of deeds of release; nor does either s.5 or s.6 of the DD Act expressly exclude deeds of release or negotiations leading to the execution of deeds of release. Moreover, there is nothing in the language of any of the provisions of Part 2 of the DD Act or of s.5 or s.6 of the DD Act that prevents the DD Act applying to deeds of release.
The Council also submits that neither the DD Act nor s.46PO(4) of the AHRC Act empowers the Court to declare a deed void or to set it aside.[51] The Council relies on the following passage from the judgment of Perry J in Eliezer v University of Sydney:[52]
Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” under various Commonwealth anti-discrimination laws (collectively, the Unlawful Discrimination Laws) including, relevantly, Part II of the Sex Discrimination Act in which ss 14, 21 and 22 appear. It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) and the Sex Discrimination Act… As a result, a contravention of ss 14, 21 and 22 of the Sex Discrimination Act or the Disability Discrimination Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act…
[51] Respondents’ Submissions in Support of Application in a Case, [28]
[52] [2015] FCA 1045 at [41]
This passage does not support the Council’s submission. The powers available to the Court under s.46PO(4) of the AHRC Act where the Court is satisfied there has been unlawful discrimination are extensive. The Court may make such orders as it consider fit, including orders of the nature specified in s.46PO(4) of the AHRC Act. That the powers conferred are broad is a point made by Nicholas J in Haraksin v Murrays Australia Limited (No 2):[53]
Section 46PO(4) of the AHRC Act provides that, if the Court is satisfied that there has been unlawful discrimination by a respondent, then it may make such orders as it thinks fit. The discretion conferred on the Court under s 46PO(4) is a broad one. There are no mandatory criteria specified governing the exercise of the discretion. In this sense the discretion is at large. Of course, the discretion must be exercised judicially and in light of the objects and purposes of the AHRC Act and, in the present case, the DD Act.
[53] [2013] FCA 217 at [103]
In my opinion, s.46PO(4) of the AHRC Act is broad enough to empower the Court to set aside a deed of release if the deed of release has been brought about as a result of unlawful discrimination, provided it is reasonably open to the Court to conclude that the making of such an order is necessary to remedy the consequences of the unlawful discrimination.
No reasonable prospects of setting aside the Deed on ground of indirect discrimination?
The question, therefore, is whether the applicant has no reasonable prospects of establishing each of the necessary elements of a cause of action based on an employer’s contravening s.15(2)(c) of the DD Act. In the case of the applicant’s claim against the Council, the necessary elements are as follows:
a)the applicant, at the relevant time, had a “disability” within the meaning of s.4(1) of the DD Act;
b)the Council engaged in conduct that constituted “dismissing” the applicant from her employment within the meaning of s.15(2)(c) of the DD Act;
c)the conduct by which the Council dismissed the applicant constituted discrimination against the applicant within the meaning of s.6 of the DD Act; that is, the conduct consisted of or included a requirement that the applicant “comply with a requirement or condition”;
d)the requirement or condition with which the Council required the applicant to comply:
i)was one with which a substantially higher proportion of persons without the disability comply or are able to comply; and
ii)was not reasonable having regard to the circumstances of the case; and
iii)was one with which the applicant did not or was unable to comply; and
e)assuming (a)-(d) are established, the appropriate remedy is an order that the Deed be set aside.
Claimed disability
The Council does not submit the applicant does not have reasonable prospects of establishing she suffered from the disabilities she claims she suffered. It would be useful, nevertheless, to set out the opinions about the disability the applicant claims she had at the time she executed the Deed.
As I have already noted, the applicant relies on three reports for alleging she suffered from Acute Dissociative Disorder (Not otherwise specified) (DSM-IV-TR code 300.15)” or “Adjustment Disorder with mixed anxiety and depressed mood (DSM-5 309.28)”, or both at the time she executed the Deed.
a)The first is the First De Saxe Report. That report, however, contains no opinion about the applicant’s mental state at the time she executed the Deed. That is not surprising, because the purpose of the First De Saxe Report was to provide an opinion of the factors that contributed to the applicant’s committing a series of traffic offences in 2009 which led to her losing her licence. Dr De Saxe identified two contributing factors, one of which was “the loss of her 16 year position as a primary teacher at [PLC] under circumstances which appear to have been grossly unjust”.[54]
b)The second report is the Second De Saxe Report in which Dr De Saxe diagnosed applicant as suffering “traumatic dissociation, whose cognitions are clearly impaired by traumatic anxiety and suggesting changes in the prefrontal, temporal and parietal cortices, and the anterior cingulate gyrus and amygdala, the parts of the brain where one experiences emotions and where thoughts are processed”.[55] Dr De Saxe further said the applicant “would not have been able to understand the legal document or the consequences of it”.[56]
c)The third report is that prepared by Dr Phillips. He concluded as follows:[57]
Given that Ms O’Hanlon was suffering from impaired cognition secondary to her then existing depression spectrum and anxiety spectrum disorder, and given that she was impaired by stress induced dissociative processes, the overwhelming result was an inability to understand the Deed of Release at a level sufficient to execute the Deed in a proper and unimpaired manner. In coming to sign the Deed in these circumstances, the plaintiff would have waived a number of her legal rights.
[54] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-1”, page 8
[55] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-2”, page 21
[56] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-2”, page 22
[57] Affidavit of W J Hanlon, 26.11.2015; annexure “WOH-3”, page 50
It is notable that the medical evidence on which the applicant relies is directed to the applicant’s mental state at the time she executed the Deed. The history on which the medical opinions are based does not refer to matters stated in the letter dated 5 December 2007 Mr Hewett sent to Ms Harding, namely, that the applicant instructed Mr Hewett to propose to the Council that the matter be resolved on the terms set out in that letter, including the parties entering into a deed of release. The opinions, therefore, do not address the applicant’s state of mind at the time which, according to Mr Hewett’s letter, the applicant instructed Mr Hewett to propose the matter be resolved on the terms set out in the letter, including the parties entering into a deed of release.
Did the Council dismiss the applicant?
The expression “dismissing the employee” is not defined in the DD Act. The notion of the dismissal of an employee, however, is to be found in s.342 of the Fair Work Act 2009 (Cth) which, as I have noted elsewhere,[58] was first included as prohibited conduct in s.9(1) of the Conciliation and Arbitration Act 1904 (Cth) when that Act was first enacted. In my opinion, the meaning given to “dismissal” in industrial legislation applies to “dismissing the employee” in s.15(2)(c) of the DD Act.[59]
[58] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [23]
[59] What follows I have taken from my judgment in Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [27]-[29].
The meaning of “dismissal”, as it appeared in s.245 of the Industrial Relations Act1991 (NSW), was considered by the Full Bench of the New South Wales Industrial Commission in Smith v Director-General School Education.[60] The Full Bench said:[61]
The Industrial Relations Act does not define “dismissal” . . . It is to the ordinary meaning of “dismiss” that assistance may be obtained. . . [W]e find no difficulty in accepting the ordinary meaning of “dismissal” suggested by Brereton J in Ex parte Wurth as being “the termination of services by the employer without the employee’s consent”; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal . . .
[60] [1993] NSWIRComm 134; (1993) 31 NSWLR 349
[61] [1993] NSWIRComm 134; (1993) 31 NSWLR 349 at pages 365E-366B
The expression “constructive dismissal” is not recognised by the common law; and where Australian cases have referred to this expression, “the reference has essentially been to conduct on the part of the employer which would constitute repudiation of the contract”.[62] In my opinion, therefore, the expression “dismissing the employee” in s.15(2)(c) of the DD Act means an employer’s repudiating the employment contract, whether or not the employee accepts the repudiation.
[62] Cook v CFP Management Pty Ltd [2006] QCA 215 at [17]
If regard is had only to the contemporaneous documentary evidence that is before me, it is not reasonably arguable the Council dismissed the applicant, that is, repudiated the applicant’s employment contract. In her letter dated 4 December 2007 to Mr Hewett, Ms Harding referred to the Council having arrived at the “preliminary view” that, among other things, it had lost confidence in the applicant, and that the applicant’s employment should be terminated without notice. The letter, however, invited the applicant to provide further information, thus indicating the Council was prepared to consider further material it invited the applicant to provide before it made a decision concerning the applicant’s employment.
There is, however, the evidence that Mr Hewett informed the applicant Ms Waters indicated she did not want the applicant to remain employed at PLC. I am not satisfied the applicant has no reasonable prospects of successfully establishing that Ms Waters did in fact indicate she did not want the applicant to remain employed. I am also not satisfied, on the material that is before me, that the Incident was such that the applicant would have no reasonable prospect of showing that it did not warrant the applicant’s being summarily dismissed. In those circumstances, I am not satisfied the applicant has no reasonable prospect of succeeding in her claim that the Council repudiated the applicant’s employment contract and, for that reason, dismissed the applicant within the meaning of s.15(2)(c) of the DD Act.
Did the arguably repudiatory conduct consist or include a requirement that the applicant comply with a requirement or condition?
That the Council arguably dismissed the applicant does not by itself mean the Council engaged in unlawful discrimination. Whether or not the conduct constituted unlawful discrimination depends on whether the conduct falls within, or can properly be characterised in terms of, s.5 or s.6 of the DD Act. Given the applicant relies only on s.6 of the DD Act, whether or not the Council’s conduct in arguably dismissing the applicant from her employment constituted unlawful discrimination depends on whether that conduct falls within, or can be characterised in terms of, s.6 of the DD Act. That, in turn, requires that I identify the conduct by which the Council arguably dismissed the applicant.
The conduct the applicant in her points of claim[63] alleges constituted the Council’s dismissal of the applicant is Mr Hewett informing the applicant on 4 December 2007 that Ms Waters did not want the applicant to remain employed at PLC, and that the applicant could fight the decision or leave with her departure being described as retirement;[64] Mr Hewett’s providing the applicant with the draft Deed that Ms Harding provided to him;[65] and the applicant’s attempting to read the Deed but, as a result of her symptoms, did not continue to read the Deed but merely signed it.[66]
[63] Points of claim, [44]
[64] Points of claim, [23]
[65] Points of claim, [25]
[66] Points of claim, [26]-[27]
In my opinion, it is not reasonably arguable that Ms Harding’s providing the draft Deed constituted any repudiatory conduct by the Council. As I will discuss later in these reasons, Ms Harding provided the draft Deed in response to a proposal Mr Hewett made by letter dated 5 December 2007 that the matter be settled on the terms set out in the letter which included the parties signing a deed of release. Nor is it reasonably arguable the alleged circumstances in which the applicant executed the Deed constituted repudiatory conduct by the Council. The only conduct of the Council, therefore, that could reasonably be considered to be repudiatory, and, hence, could arguably be considered to be the conduct by which the Council dismissed the applicant, is Ms Waters’ alleged statement that she did not want the applicant to remain employed at PLC (arguably repudiatory conduct).
The next question is whether the arguably repudiatory conduct consisted of or included a requirement that the applicant “comply with a requirement or condition”. The applicant, in her points of claim, makes no such allegation; and there are no reasonably arguable grounds on which it could be contended the arguably repudiatory conduct consisted of or included any such requirement. For these reasons alone, the applicant does not have any reasonable prospects of successfully contending that, if the Council did dismiss the applicant, the conduct by which it did so constituted unlawful discrimination.
Did the Council in any event require the applicant to execute Deed?
Although the applicant does not in her points of claim allege the arguably repudiatory conduct consisted of or included a requirement that the applicant “comply with a requirement or condition”, the applicant does allege the Council imposed requirements or conditions, these being that the applicant “deal with the issue of her ongoing employment at PLC”, the applicant “make statements and decisions concerning that issue”, and the applicant “sign the Deed” (Asserted Requirements).[67]
[67] Points of claim, [39]
The applicant does not allege these requirements formed part of the conduct which I have found constitute the only reasonably arguable basis for contending the Council dismissed the applicant, namely, the arguably repudiatory conduct. For that reason alone, whether or not the Council imposed the Asserted Requirements is not relevant to whether the Council engaged in unlawful discrimination against the applicant by dismissing her. In any event, the applicant has no reasonable prospects of succeeding on a contention that the Asserted Requirements constituted or formed part of the arguably repudiatory conduct. I will, however, consider whether the applicant has reasonable prospects of successfully contending that the Council required the applicant to comply with the Asserted Requirements.
The ordinary meaning of “require” is “to make a request or demand of a person”.[68] Among the ordinary meanings of “comply” is “to act in accordance with, and fulfilment of wishes, desires, requests, demands, conditions, or regulations”.[69] And among the ordinary meanings of “condition” is “something demanded or required as a prerequisite to the granting or performance of something else”.[70]
[68] Oxford English Dictionary
[69] Oxford English Dictionary
[70] Oxford English Dictionary
The expression “requirement or condition” as used in anti-discrimination statutes, has been examined in a number of cases. In Australian Iron & Steel Pty Ltd v Banovic Dawson J, speaking of s.24(3) of the Anti-Discrimination Act 1977 (NSW) said:[71]
The starting point with s.24(3) must be the identification of the requirement or condition. Upon principle and having regard to the objects of the Act, it is clear that the words “requirement or condition” should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees…
[71] [1989] HCA 56; (1989) 168 CLR 165 at [10]
In Waters v Public transport Corporation, McHugh J, speaking of s.17(1) of the Equal Opportunity Act 1984 (Vic) said:[72]
Section 17(5)(a) stipulates that a person who discriminates against another person must have imposed on that other person a “requirement or condition”. For the purpose of determining the presence of “discrimination” within the meaning of s.17(5), the requirement or condition that is allegedly imposed on a person must be identified with some precision…
The reported cases also require that the phrase “requirement or condition” in s.17(5) be given a broad interpretation to enable the objectives of the Act to be fulfilled. The words “requirement or condition” are found not only in the Act but also, for example, in United Kingdom and New South Wales anti-discrimination statutes. In those jurisdictions, courts have given the words a wide interpretation…
…In conformity with these pronouncements, s.17(5) should be given a liberal interpretation in order to implement the objectives of the legislation. In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.
[72] [1991] HCA 49; (1992) 173 CLR 349 at [20]-[21]
In my opinion, it is reasonably arguable that the questions the Council asked of the applicant during the meetings referred to in Ms Harding’s letter dated 4 December 2007, and the questions contained in Ms Waters’ letter of 27 November 2007, constitute a requirement by the Council that the applicant “comply with a requirement or condition”. It is not reasonably arguable, however, that the Council required the applicant to “deal with the issue of her ongoing employment at PLC”, or that it required the applicant to make “statements and decisions concerning the issue”, beyond requiring the applicant to answer the questions the Council asked of the applicant.
If regard were only had to the allegations made in the points of claim, and in the applicant’s affidavit, I could not be satisfied the applicant would have no reasonable prospects of successfully contending that she was required to sign the deed of release. The difficulty with the points of claim and the applicant’s affidavit, however, is that they omit material events not in dispute that led to the applicant executing the Deed; and the question whether the Council required the applicant to execute the Deed, as she claims, must be assessed having regard to relevant matters not in dispute which the applicant has omitted from the points of claim and her affidavit.
The points of claim, and the applicant’s affidavit, do not refer to Ms Harding’s letter dated 4 December 2007 or to Mr Hewett’s letter of 5 December 2007. The applicant does not dispute the statement contained in Mr Hewett’s letter that the proposal contained in that letter, which included the entering into of a formal deed of release containing terms to the effect set out in the letter, reflected the “specific instructions from” the applicant. That necessarily implies the applicant must have had a conversation with Mr Hewett about the proposal set out in Mr Hewett’s letter. Although the applicant is recorded in the medical reports as claiming that Mr Hewett was or may have been conflicted, the applicant does not in her points of claim allege Mr Hewett acted improperly or negligently. Further, neither in her points of claim nor in her affidavit does the applicant refer to the discussions Mr Hewett’s letter necessarily implies she must have had with him about the proposed basis of resolving the matter. In those circumstances, the applicant does not have any reasonable prospect of successfully submitting that the applicant signed the Deed because the Council required the applicant to comply with a requirement or condition that she sign the Deed. The uncontradicted evidence is that it was the applicant, through Mr Hewett’s letter dated 5 December 2007, who suggested to the Council that the applicant sign a deed of release; and it was the applicant, again through Mr Hewett’s letter, that suggested the terms, in addition to the “normal provisions”, that should be included in the proposed deed of release.
Mr Hamer, who appeared on behalf of the applicant, submitted that when assessing whether the applicant was required to sign the Deed, the Court must look at “the entire transaction”, by which I understand Mr Hamer to mean the events as alleged in the points of claim commencing on 27 November 2007. Mr Harmer submitted:[73]
That is, the circumstances created by the school whereby they started to investigate and threaten the livelihood of the applicant and required her – in that circumstance with her livelihood and career and attachment to the school under threat – to transact the deed. We say that that is a context and a series of facts that imposed the condition on the applicant, that dealing with all of that she properly transact the end of her employment. And what we say, your Honour, on the authorities is that the requirement or condition doesn’t have to be expressed.
It can be implicit from the facts and the conduct of here the employer. And so we say, your Honour, that that entire transaction in those circumstances constituting the product of the requirement or condition produced the discriminatory treatment of this applicant compared to others who didn’t have the disability and could have transacted the end of their employment despite pressure.
[73] T66.25-35
This submission does not articulate how it is said the events leading to the applicant’s executing the Deed gave rise, expressly or impliedly, to the Council requiring the applicant to comply with a request or condition that she execute the Deed. In my opinion, the applicant has no reasonable prospects of succeeding on the contention that the events alleged in the points of claim, when read against the correspondence between Ms Harding and Mr Hewett, expressly or impliedly gave rise to, or communicated to the applicant, a requirement by the Council that the applicant comply with a request or condition that she sign the Deed.
For these reasons, I am of the opinion the applicant has no reasonable prospects of establishing that the Council required the applicant to comply with the Asserted Requirements.
Whether substantially higher proportion of people able to comply with requirements or conditions
The applicant alleges that a substantially higher proportion of persons without the disabilities from which the applicant alleges she suffers are able to comply with the Asserted Requirements. The Council submits this allegation should be rejected because the applicant fails to identify:[74]
a)facts that show there was any relevant base group or pool of PLC employees to whom the requirement or condition imposed by the Council was directed;
b)those within the base group who did not have the alleged disability who could or did comply with the requirement or condition; and
c)the method by which the substantially higher proportion of persons without the alleged disabilities did or could comply.
[74] Respondents’ Submissions in Support of Application in a Case, [61]
In support of this submission, the Council relies on the following passage from the decision of the Administrative Decisions Tribunal of New South Wales in Bonella & Ors v Wollongong City Council :[75]
In order to make the comparison required by this second element of indirect discrimination, it is necessary to carefully select the base group or pool which is to be used for the purpose of contrasting gender compliance with the requirement or condition. The pool is all of the people to whom the challenged requirement or condition is applied, or is potentially applied. In a sex discrimination case this pool or base group is split into gender groups because the purpose of the exercise is to compare female compliance and male compliance with the challenged requirement or condition. The number of men and women who can comply is then expressed as a percentage of the gender groups in order to enable the comparison to be made. In mathematical terms what is required is a comparison of two fractions. The denominator in each case is the number of persons of each sex to whom the requirement or condition is applied. The numerator is the number of persons who comply, or are able to comply, with the requirement or condition. The fractions, or percentages, are then compared to ascertain whether a substantially higher proportion of members of the opposite sex to the complainant comply, or are able to comply, with the challenged requirement or condition.
[75] [2001] NSWADT 194 at [77]
The applicant submits it is not necessary in every case to adduce evidence of base groups; and she points to examples of courts having taken judicial notice of base groups. The applicant submits that the relevant base group on which the applicant relies is employees which the Council has chosen to dismiss in circumstances where the Council have taken issue with an aspect of the employee’s conduct.[76] The applicant further submits:[77]
Commonsense [sic] would indicate that a substantially higher proportion of persons without the disability suffered by the Applicant could withstand the harrowing experience of the First Requirement or Condition and “comply” with it, in the sense of maintaining their psychological integrity and the protection [of] their own interest.
[76] Applicant’s Outline of Submissions in Response to the Respondents’ Application in a Case, [60]
[77] Applicant’s Outline of Submissions in Response to the Respondents’ Application in a Case, [61]
I am not satisfied the applicant has no reasonable prospects of being able to rely on the base group on which she intends to rely as the basis for the Court taking judicial notice of the existence of such base group.
There is, however, an aspect of this part of the applicant’s case that causes difficulty for the applicant; and that is the meaning the applicant implicitly attaches to the notion of “comply[ing] with a requirement or condition”. The applicant does not simply allege that the members of the relevant base group comply or are able to comply with the requirement that the Deed be executed; she alleges the base group “properly” complies with the requirement that the Deed be executed in the sense that the base group can or are in a position “to properly consider” the Deed and thus can or are in a position “to properly comply” with the requirement that the Deed be executed.[78] This necessarily implies that the requirement the applicant has alleged the Council imposed on the applicant was not simply a requirement that she execute the Deed, but a requirement that the applicant “properly comply” with the requirement that she execute the Deed.
[78] Points of claim, [40]
This may be stated another way. The indirect discrimination the applicant alleges the Council engaged in is not one which is alleged to arise out of comparing, on the one hand, the proportion of people without the applicant’s disability who comply or who are able to comply with the requirement that the Deed be executed with, on the other hand, the proportion of people with the applicant’s disability who comply or are able to comply with that requirement. The indirect discrimination is one which the applicant alleges arises from comparing, on the one hand, the proportion of people without the disability who “properly” comply or who are able to “properly” comply with the requirement that the Deed be executed, with, on the other hand, the proportion of people with the applicant’s disability who “properly” comply or are able to “properly” comply with that requirement. This necessarily implies that the relevant requirement the applicant alleges the Council imposed is that the applicant “properly” comply with the requirement that the applicant execute the Deed.
The difficulty for the applicant, however, is that the points of claim do not make that allegation; the points of claim only allege the Council required the applicant to comply with the requirement or condition that she sign the Deed. That means that the comparison on which the applicant relies for claiming the Council engaged in indirect discrimination is in relation to a requirement or condition, namely, “properly” to comply with the requirement that she execute the Deed, with which the applicant does not allege the Council required her to comply. For this reason alone, the applicant does not have reasonable prospects of succeeding on her claim to the extent she relies on the allegation that the Council required the applicant to execute the Deed.
Even if, however, the applicant is taken as intending to allege that the relevant requirement the Council imposed is that the applicant “properly” execute the Deed, the applicant would have no reasonable prospects of successful establishing that the Council imposed a requirement that the applicant “properly” execute the Deed.[79]
[79] Points of claim, [41]
Were the Asserted Requirements unreasonable?
A useful statement of the meaning of “reasonable” in the context of s.6 of the DD Act and equivalent provisions in other antidiscrimination statutes is that provided by Brennan J in Waters v Public Transport Corporation:[80]
It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s.17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
[80] [1991] HCA 49; (1992) 173 CLR 349 at [15]
The applicant alleges the Council’s requiring the applicant to execute the Deed was unreasonable because the applicant was unable to comprehend the Deed as presented to her or make “a rational, objective and balanced decision to sign the document at that time”. [81] It is apparent from this allegation, however, that the applicant alleges no facts by reference to which the Court could determine whether the Asserted Requirements were not reasonable in the circumstances. In particular, the points of claim do not allege facts on the basis of which it could reasonably be concluded the Asserted Requirements (assuming, contrary to what I have found, the Council did impose them) were not adapted to any particular activity or transaction, or, if so, whether the activity could have been performed or the transaction completed without the Council imposing the Asserted Requirements.
[81] Affidavit of V L Waters, 06.11.2015; annexure VW-11
In her written submissions, the applicant submitted “the undue haste, the lack of sensitivity and the absence of a supportive environment, which characterised the” Asserted Requirements could not be described as “reasonable” in the sense described by Brennan J in Waters; and that “[t]hese features were not appropriate or adapted to the process of dismissing a long standing employee with a previously unblemished record”.[82] The difficulty with this submission is it equates the Asserted Conditions with conduct that is characterised by the lack of sensitivity and of a supportive environment. That, however, is not the Asserted Requirements; the Asserted Requirements are that the applicant “deal with the issue of her ongoing employment at PLC”, and “make statements and decisions concerning that issue”, and “sign the Deed”. Assuming the applicant correctly identified the transaction or activity to which the requirements are directed, namely, dismissing the applicant, the question the applicant should have alleged, but has not alleged, are facts on the basis of which it would reasonably be open to the Court to determine whether the Asserted Requirements were inappropriate to the process of dismissing the applicant or whether such a process could have been completed without the Asserted Requirements. Because the applicant pleads no such facts, and has adduced no evidence on that issue, the applicant has no reasonable prospects of successfully contending that the Asserted Requirements were not reasonable in the circumstances of the case.
[82] Applicant’s Outline of Submissions in Response to the Respondents’ Application in a Case, [68]
Did the applicant comply with the Asserted Requirements?
To fall within s.6 of the DD Act, it must be shown that the aggrieved person did not or is unable to comply with the requirement or condition with which it is alleged the alleged discriminator required the aggrieved to comply. The evidence, however, is clear that the applicant did comply with the Asserted Requirements. The applicant executed the Deed; she dealt with the issue of her ongoing employment at PLC; and she made statements and decisions concerning that issue. For these reasons alone the applicant has no reasonable prospect of successfully contending the Council’s imposing the Asserted Requirements falls within s.6 of the DD Act.
Conclusion on claim for setting aside Deed on the ground of indirect discrimination
This part of my reasons may be summarised as follows.
I am not satisfied the applicant has no reasonable prospects of successfully contending the Council dismissed her. That is so because it is reasonably arguable that Ms Waters stated to the applicant’s lawyer, Mr Hewett, that she did not want the applicant to remain employed at PLC (this being the “arguably repudiatory conduct” I identified above).
Assuming the Council did require the applicant to comply with the requirements or conditions that the applicant “deal with the issue of her ongoing employment at PLC”, and “make statements and decisions concerning that issue”, and “sign the Deed” (these being the “Asserted Requirements” I identified above), those requirements did not constitute, or did not form part of, the arguably repudiatory conduct. That means that, assuming the applicant establishes the Council dismissed the applicant, the conduct by which it did so could not arguably constitute discrimination by the Council against the applicant within the meaning of s.6 of the DD Act.
In any event, the applicant does not have reasonable prospects of establishing that:
a)the Council required the applicant to comply with the Asserted Requirements;
b)assuming the Council required the applicant to comply with the Asserted Requirements:
i)a substantially higher proportion of persons without the applicant’s disability comply or are able to comply with the Asserted Requirements; or
ii)the Council’s requiring the applicant to comply with the Asserted Requirements was not reasonable having regard to the circumstances of the case; or
iii)the applicant did not comply with the Asserted Requirements.
It follows, therefore, that I am satisfied the applicant has no reasonable prospects of prosecuting the proceeding to the extent she claims the Council engaged in unlawful discrimination by dismissing her contrary to s.15(2)(c) of the DD Act.
Claim based on claimed discrimination after making of Deed
This part of the applicant’s claims is premised on the Council’s letter dated 23 October 2014 which responded to the applicant’s letter dated 3 October 2014. The applicant alleges that by its letter the Council imposed a further condition on the applicant (Further Asserted Requirement), namely, that the applicant continue to comply with the Asserted Requirements.[83]
[83] Points of claim, [46]
There is nothing in the Council’s letter that could reasonably be construed as imposing a requirement that the applicant continue to comply with the requirement that she “deal with the issue of her ongoing employment at PLC”, or “make statements and decisions concerning that issue”, and “sign the Deed”. At the time the Council wrote the letter, the applicant did not have any ongoing employment relationship with the Council for almost seven years. It is impossible, in those circumstances, to construe the Council’s letter as requiring the applicant to address an employment relation that did not exist at the time the Council wrote the letter, and that had not existed for seven years. Further, when the Council wrote its letter, the applicant had executed the Deed, and the Council’s letter cannot, therefore, reasonably be construed as imposing a requirement that the applicant sign a document she had signed more than seven years before the Council wrote the letter.
The applicant then alleges that by imposing the Second Asserted Requirement the Council subjected the applicant to detriment by refusing to reverse the impact of requiring the applicant to comply with the Asserted Requirements. By this I understand the applicant alleges the Council caused the applicant detriment by failing to release the applicant from her obligations under the Deed. The applicant, however, alleges no facts from which it could reasonably be argued the Council was obliged to release the applicant from her obligations under the Deed. In those circumstances, the applicant has no reasonable prospects of establishing the applicant suffered any detriment within the meaning of s.15(2)(d) of the Act.
Finally, the applicant alleges that the applicant was subjected to this detriment as an employee. As I have already noted, however, the applicant was not an employee of the Council at the time the Council wrote the letter of 23 October 2014.
The applicant, in her written submissions, submits that the DD Act should be given a “fair, large and liberal interpretation”, rather than one which is “literal or technical”.[84] The applicant further submits it would be contrary to the objects of the DD Act to allow a discriminator to put an end to its obligations towards an aggrieved person by terminating the aggrieved person’s employment.
[84] Applicant’s Outline of Submissions in Response to the Respondents’ Application in a Case, [78]
Accepting the principle that the DD Act should be given a liberal interpretation is not to be equated with a licence to ignore the ordinary meaning of the words used in the DD Act, having regard to the context in which those words appear and the purpose and objects of the DD Act. The words “employer” and “employee” have a well-established meaning in the law. There is nothing in the DD Act to suggest Parliament intended to give these words a different meaning from their established meanings.
It may be accepted that it would be contrary to the objects of the DD Act to allow a discriminator to put an end to its obligations towards an aggrieved person by terminating the aggrieved person’s employment. But construing s.15(2)(d) of the DD Act as applying only to persons who are employees at the time of the alleged discriminatory conduct would not have this consequence. Any liability the employer may incur to an employee as a consequence of the employer breaching the DD Act will remain on foot even if the employer terminates the employee’s contract of employment; and if the employer terminates the employee’s contract in breach of s.15(2)(c) of the DD Act, the employer may incur a fresh liability.
It is true that an employer may enter into an agreement with an employee under which the employee releases the employer from any liability the employer may have for contravening the DD Act; but, as these reasons demonstrate, an employer’s entering into such an agreement does not by itself constitute unlawful discrimination.
For these reasons, I am satisfied the applicant has no reasonable prospects of successfully prosecuting the proceeding to the extent she claims the Council engaged in unlawful discrimination contrary to s.15(2)(d) of the DD Act.
Delay
Given my conclusion that the applicant has no reasonable prospects of successfully prosecuting the proceeding, I do not propose to consider the Council’s claim that the proceeding be permanently stayed because of what the Council claims is the applicant’s inordinate delay.
Conclusion and disposition
I propose to order that the proceeding be dismissed. I also propose that the applicant pay the Council’s costs. I will, however, reserve to the parties liberty to apply within fourteen days for a different costs order than the one I propose to make.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 3 March 2017
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