Owens and Pastoralists and Graziers Association Of Western Australia Incorporated
[2008] WASAT 233
•8 OCTOBER 2008
OWENS and PASTORALISTS AND GRAZIERS ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED [2008] WASAT 233
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 233 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:58/2007 | 19 AND 20 AUGUST 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS D DEAN (MEMBER) PROF C MULVEY (SESSIONAL MEMBER) | 8/10/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK ALAN OWENS PASTORALISTS AND GRAZIERS ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED |
Catchwords: | Discrimination Impairment Employment Applicant on sick leave with workrelated illness Employer required medical clearance before return to work Full clearance not provided Whether applicant was refused graduated return to work Employment terminated Whether termination of employment was unlawful discrimination Finding that applicant was not refused a graduated return to work No less favourable treatment Application dismissed |
Legislation: | Equal Opportunity Act 1984 (WA), s 4, s 66(3), s 66A, s 66B, s 66Q, s 93(1)(b) |
Case References: | Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 |
Orders | The application is dismissed. |
Summary | The applicant alleged that the respondent unlawfully discriminated against him on the ground of his impairment by refusing to allow him a graduated return to work and by dismissing him when he was unable to get a full medical clearance to return to work after a period of sick leave. ,The respondent denied that the applicant had asked to return to work on a graduated basis and denied, in any event, he had been treated less favourably than any other employee in materially comparable circumstances. The respondent agreed it had terminated the applicant's employment because he was not able to provide a medical clearance to return to work. However, it said, his continuing illness made his employment untenable, in particular because his position was funded under a Federal government grant which required a fulltime employee. ,The Tribunal was not satisfied that the applicant had in fact been refused a graduated return to work but, in any event, there was no evidence that he was treated less favourably than the respondent treated, or would have treated, another employee in similar circumstances who did not have the same impairment. The Tribunal did not accept that any of the employees cited by the applicant was an appropriate comparator.,The Tribunal found that the appropriate comparator for the purposes of the claim concerning termination was a full-time employee who had been off work for the same length of time with a physical injury suffered in the course of work and who was seeking to return to the same full-time duties. It accepted the respondent's evidence that it would have required a full clearance from a person in those circumstances before they could return to work. ,Even if the respondent might have allowed the applicant more time, and might have offered him a trial graduated return to work, the applicant had to make out his claim of unlawful discrimination. The Tribunal was not satisfied that he had done so and dismissed his application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : OWENS and PASTORALISTS AND GRAZIERS ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED [2008] WASAT 233 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS D DEAN (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
- Applicant
AND
PASTORALISTS AND GRAZIERS ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
Respondent
Catchwords:
Discrimination - Impairment - Employment - Applicant on sick leave with workrelated illness - Employer required medical clearance before return to work - Full clearance not provided - Whether applicant was refused graduated return to work - Employment terminated - Whether termination of employment was unlawful discrimination - Finding that applicant was not refused a graduated return to work - No less favourable treatment - Application dismissed
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Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 66(3), s 66A, s 66B, s 66Q, s 93(1)(b)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Ms R Sorgiovanni
Respondent : Mr S Kemp
Solicitors:
Applicant : Sorgiovanni Legal
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
(Page 3)
Summary of Tribunal's decision
1 The applicant alleged that the respondent unlawfully discriminated against him on the ground of impairment by refusing to allow him a graduated return to work and by dismissing him when he was unable to get a full medical clearance to return to work after a period of sick leave.
2 The respondent denied that the applicant had asked to return to work on a graduated basis and denied, in any event, that he had been treated less favourably than any other employee in materially comparable circumstances. The respondent agreed it had terminated the applicant's employment because he was not able to provide a medical clearance to return to work. However, it said, his continuing illness made his employment untenable, in particular because his position was funded under a Federal Government grant which required a fulltime employee in the position.
3 The Tribunal was not satisfied that the applicant had in fact been refused a graduated return to work but, in any event, there was no evidence that he was treated less favourably than the respondent treated, or would have treated, another employee in similar circumstances who did not have the same impairment. The Tribunal did not accept that any of the employees cited by the applicant was an appropriate comparator.
4 The Tribunal found that the appropriate comparator for the purposes of the claim concerning termination was a full-time employee who had been off work for the same length of time with a physical injury suffered in the course of work and who was seeking to return to the same full-time duties. It accepted the respondent's evidence that it would have required a full clearance from a person in those circumstances before allowing them to return to work.
5 Even if the respondent could have allowed the applicant more time, the applicant had to make out his claim of unlawful discrimination. The Tribunal was not satisfied that he had done so and dismissed his application.
Background
6 The applicant, Mark Owens, alleges that the Pastoralists and Graziers Association of Western Australia Incorporated (the respondent) unlawfully discriminated against him on the ground of impairment by refusing to allow him a graduated return to work after a period of sick leave and by terminating his employment. He claims the
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- respondent's conduct contravened s 66B(2)(a) and 66B(2)(c) of the Equal Opportunity Act 1984 (WA) (EO Act).
7 On 27 June 2007, Mr Owens lodged a complaint of unlawful discrimination with the Commissioner for Equal Opportunity. On 6 November 2007, the Commissioner, having attempted without success to conciliate the matter, referred the complaint to the Tribunal pursuant to s 93(1)(b) of the EO Act.
8 At a hearing on 19 and 20 August 2008, the Tribunal heard oral evidence from Mr Owens and his wife Leanne Owens; Bevan Henderson and Jennifer Stawell, employees of the respondent; and Dr Malcolm Roberts and Dr Laurence Terace, psychiatrists.
Claims and evidence
9 Mr Owens was employed by the respondent between 1993 and 29 June 2006 when his employment was terminated. In that time he worked in various casual and fulltime positions. From 16 May 2005 he was employed as a permanent fulltime Native Title Officer, a position funded by a Federal Government grant.
10 Mr Owens claims he was subjected to intimidation and harassment over a sustained period by different managers employed by the respondent, culminating in an incident in early 2006 which led to him taking extended sick leave and, eventually, to the termination of his employment.
Incident on 26 February 2006 and subsequent sick leave
11 Mr Owens' complaint of discrimination arises out of an altercation on 26 February 2006 with Mr Tim Stawell, the manager of the respondent's employment agency. There are some discrepancies in the evidence as to the precise dates that various things occurred around this time but none of these are material and the details of the altercation itself are not important here.
12 Immediately following the incident, Mr Owens went on sick leave. He has not worked since. On 7 March 2006, he saw his general practitioner, Dr Chris Jacklyn, who certified him totally unfit for work from 7 to 21 March 2006. Dr Jacklyn noted that Mr Owens was suffering from 'depressive disorder' and that he might need to seek psychiatric help.
(Page 5)
13 On 21 March 2006, Mr Owens lodged a claim for workers compensation for stressrelated illness arising out of the incident. In the ensuing period, Dr Jacklyn issued a number of Progress Medical Certificates concerning Mr Owens' fitness for work. We will return to the details of the certificates.
14 On 12 and 13 April 2006, Mr Owens saw Dr Lawrence Terace, a consultant psychiatrist, at the request of CGU, the respondent's workers compensation insurer. In a report dated 16 April 2006, Dr Terace advised that Mr Owens' condition was 'probably best described' as 'Adjustment disorder/disturbance with mixed symptoms of anxiety and depression; and a preexisting condition of adult attention deficit disorder'. Dr Terace reported that Mr Owens was 'presently incapable of returning [to his position] from a psychiatric point of view'.
15 By letter dated 18 May 2006, CGU advised the respondent that it disputed liability for Mr Owens' claim on the ground that his disability did not arise in, or out of the course of, his employment. CGU subsequently reviewed the matter at Mr Owens' request and affirmed its decision to reject his claim.
Progress Medical Certificates
16 Dr Jacklyn issued Workers' Compensation Progress Medical Certificates on 11 occasions up to 28 June 2006. He has issued further certificates since that date but they are not relevant for present purposes.
17 The relevant parts of the Progress Medical Certificates are as follows:
Totally unfit for 14 days from 7/3/06 to 21/3/06 (inclusive). |
Totally unfit for 7 days from 20/3 to 26/3 (inclusive). Return to Work Options: Doctor and employer to coordinate return to work. |
Totally unfit for 7 days from 28/3/06 to 05/04/06 (inclusive). (No comment under "Return to Work Options") |
Totally unfit for 7 days from 04/04/06 to 12/04/06 (inclusive). |
Totally unfit for 14 days from 12/04/06 to 26/04/06 (inclusive). |
Totally unfit for 5 days from 26/04/06 to 30/04/06 (inclusive). Fit for restricted return to work from 1/5/06 to 1/6/06. Work restrictions: Needs to have resolution with work re conflict with coworkers if this does not eventuate then he will remain unfit. |
Fit for restricted return to work from 01/05/06 to 01/06/06. Totally unfit for 5 days from 26/04/06 to 30/04/06 (inclusive)* Work restrictions: Needs to have resolution with work re conflict with coworkers if this does not eventuate then he will remain unfit. |
Fit for restricted return to work from 15/5/06 to 15/6/06. Totally unfit for 5 days from 26/04/06 to 30/04/06 (inclusive)* . Work restrictions: Needs to have resolution with work re conflict with coworkers if this does not eventuate then he will remain unfit. |
Totally unfit for 17 days from 30/5/06 to 16/6/06 (inclusive). Work restrictions: Needs to have resolution with work re conflict with coworkers if this does not eventuate then he will remain unfit*. |
Fit to return to predisability duties but requires further treatment. |
Fit to return to predisability duties but requires further treatment. |
|
18 It is common ground that no one acted on Dr Jacklyn's note in the certificate of 21 March ('doctor and employer to coordinate return to work'). Ms Stawell gave evidence, which the Tribunal accepts, that CGU advised her she
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- should not contact Dr Jacklyn herself but should leave that to the insurer. Dr Jacklyn's evidence, which the Tribunal also accepts, was that a coordinated return is more commonly initiated by the employer. In any event, nothing was done to further this suggestion.
Meeting on 12 June 2006
19 Ms Stawell is the respondent's administration director and daughter of Mr Tim Stawell with whom Mr Owens had the altercation on 26 February 2006. She gave evidence that the limited contact she had with Mr Owens was 'not always pleasant' and that, in her observation, while he was a hard worker, he needed constant supervision and his attendance was 'erratic and variable'.
20 Ms Stawell says that, when she received the Progress Medical Certificate dated 30 May 2006, she noted that it certified Mr Owens totally unfit for 17 days. This was in contrast to the two previous certificates dated 4 May and 15 May which had certified him fit for restricted return to work (as well as the certificate of 27 April which certified him both totally unfit and fit for restricted return).
21 Ms Stawell contacted the respondent's treasurer, Bevan Henderson to discuss the matter. By this time Mr Owens had been absent for over three months; other staff had covered his duties for a time but this had not proven satisfactory; then someone had been appointed to act in his position but Ms Stawell was concerned about this arrangement continuing. She gave evidence that she was concerned in particular that the respondent was not meeting its obligations under its agreement with the Federal Government which funded Mr Owens' position and she needed to ascertain whether he would be returning to work.
22 Mr Henderson and Ms Stawell agreed they should meet with Mr Owens. Mr Henderson is an unpaid treasurer and he would visit the respondent's office as required. He and Ms Stawell settled on 12 June 2006 as their first available date for the meeting.
23 On 2 June 2006, Mr Henderson wrote to Mr Owens (by letter incorrectly dated 2 June 2005) advising that the respondent had received CGU's advice that his claim had been rejected, and asking to meet with him on 12 June 2006 'to discuss your employment with the PGA'.
24 What happened at the meeting on 12 June 2006 is in dispute.
(Page 8)
25 Mr Owens says Mr Henderson referred to Dr Jacklyn's certificate of 30 May 2006 certifying him unfit up to 16 June 2006 (but not after that) and insisted he return to work immediately. He claims Mr Henderson 'thumped his fist on the table' and said the respondent had been 'far too patient'.
26 Mr Owens says he offered to return to work immediately on a graduated basis, and from 1 July 2006 fulltime, and he cited Dr Terace's report of 16 April 2006 (which Ms Stawell had not seen at this point). He says Mr Henderson and Ms Stawell refused to allow him to return immediately on a graduated basis.
27 Mr Henderson and Ms Stawell deny that Mr Henderson insisted Mr Owens return to work immediately or that he thumped his fist on the table. Ms Stawell agrees that Mr Henderson said words to the effect that the respondent would not keep Mr Owens' position open indefinitely. Mr Henderson could not actually recall making such a statement but said he could well have done.
28 Mr Henderson and Ms Stawell deny that Mr Owens offered to return to work immediately. They say he told them he did not want to return until the new financial year because to do so would disadvantage him financially. They say he offered to return to work from 1 July 2006 on a parttime basis only. They also say that Mr Owens also told them that his stress was caused by personal and financial issues, not by health issues. Mr Owens denies saying anything to this effect.
29 Parties agree that the meeting closed on the basis that Ms Stawell would get a copy of Dr Terace's report from CGU and contact Dr Jacklyn with a view to getting his clearance for Mr Owens to return to work on 1 July 2006.
30 It is common ground that Mr Owens telephoned the respondent later that day offering to return to work fulltime as soon as possible and that he was ready to commence work from 19 June. Ms Stawell declined his offer; she had not had a chance to see Dr Terace's report and, according to Dr Jacklyn's certificate, Mr Owens was unfit until 16 June; the situation was unclear and the respondent was not prepared to allow Mr Owens to return to work without a medical clearance.
(Page 9)
Dr Terace's report
31 Either that day or the next, Ms Stawell received from CGU a copy of Dr Terace's report of 16 April 2006 which included the advice that, at that date, Mr Owens was incapable of returning to work.
32 Dr Terace's report stated that Mr Owens required further treatment; he should be reviewed by a consultant psychiatrist as soon as possible and on a monthly basis for the next two years; his prognosis was 'fair' meaning he anticipated a reduction in frequency and severity of symptoms over the next two years but the prognosis for return to work was 'not so good' given ongoing issues at work.
33 The report stated that, based on Mr Owens' symptoms when he saw him in mid-April, Dr Terace 'could not justify medical leave for greater than three months; he should then be capable of returning to work via a graduated return to work programme, commencing two hours per day and increasing by two hours per week to full-time after one month unless his present symptoms deteriorate'.
34 Ms Stawell says she became concerned in particular at Dr Terace's comment that, unless some of the problems at work were mediated, there might be greater conflict 'if not an assault … (although the likelihood of conflict is probably far greater than the possibility of an assault which is probably minimal)'.
Request to Dr Jacklyn for medical clearance
35 As Mr Owens' proposed date for return to work was still within the three months period of leave indicated by Dr Terace, on 14 June 2006 Ms Stawell sent a fax to Dr Jacklyn asking for a confirmation that Mr Owens was fit to resume full-time work. She also asked him to confirm that returning to work on 19 June as Mr Owens now proposed would not pose a risk to himself or other staff.
36 On 19 or 20 June 2006, when she had not heard from Dr Jacklyn, Ms Stawell telephoned him and asked if he could provide a 'full and final medical clearance'. Dr Jacklyn says he told Ms Stawell that Mr Owens was fit for work but needed further treatment and he was not a danger to other staff. He confirmed this in a letter dated 23 June 2006 (see below). Dr Jacklyn told her the prognosis was difficult because a work trial would be the only way to see whether Mr Owens could cope back at work; he could not guarantee how Mr Owens would perform or whether he was fit for full-time work until he actually underwent a trial, and he could not guarantee he would not get sick in the
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- future.
37 Ms Stawell says Dr Jacklyn left her with the clear impression that he was not prepared to give Mr Owens a full and final clearance and was only prepared to certify a 'graduated return to work trial'.
Termination of employment
38 After speaking with Dr Jacklyn, Ms Stawell contacted Mr Henderson to discuss the options for Mr Owens' employment. At the time they had the Progress Medical Certificates from Dr Jacklyn and the report dated 16 April 2006 from Dr Terace, and Ms Stawell had spoken with Dr Jacklyn on 19 or 20 June . As the medical evidence did not, in their view, indicate that Mr Owens could return to work full-time, they did not believe he could adequately perform the duties of the position and they decided they should terminate his employment.
39 It is common ground that, on 26 June 2006, Ms Stawell telephoned Mr Owens and told him that Dr Jacklyn had refused to give him a full clearance to return to work; she refused to discuss the matter further by telephone and asked Mr Owens to meet with her and Mr Henderson the following day. Mr Owens asked her to defer the meeting so that he could see his doctor but Ms Stawell refused and said she had all the information she required. Mr Owens says Ms Stawell made a comment to the effect that he would have reason to see his doctor after they had met, but she denies this and nothing turns on it.
40 Mr Owens did not attend the meeting on 27 June 2006. Ms Stawell received an email from him that day advising that he would not be attending and attaching a letter setting out his reasons. The email has not been discovered by either party and apparently cannot be located.
41 On 29 June 2006 the respondent sent Mr Owens a letter responding to matters in the letter attached to his email and advising of its decision to terminate his employment effective from that date. The letter referred to Ms Stawell's contact with Dr Jacklyn who was 'unable to provide a full medical clearance for you to return to full-time duties'. It referred also to comments allegedly made by Mr Owens at the meeting on 12 June about the financial implications if he were to return to work before 1 July.
42 The respondent says that Mr Owens' continuing illness made the situation untenable; its limited staff resources had already been stretched to cover his absence; a full-time employee was needed in the position because it was
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- funded by the Federal Government and a graduated return to work was not viable.
Further letters from Dr Jacklyn
43 On 30 June 2006, after notifying Mr Owens of the decision to terminate his employment, the respondent received by fax two letters from Dr Jacklyn dated 23 June and 28 June 2006. A handwritten notation on the first letter indicates it was faxed on 26 June 2006 but the fax header shows it was faxed from Gwelup pharmacy on 30 June 2006. In evidence before the Tribunal, Dr Jacklyn was unable to clarify how or when the letters were faxed and it is not clear how they came to be sent some days after they were dated. In any event, Ms Stawell maintains she did not receive either letter until 30 June 2006 and there is no evidence to the contrary.
44 In the earlier letter, Dr Jacklyn states that, having talked to Mr Owens that day, he could confirm that 'he has sufficiently recovered to resume work as of Monday 26/6/06. He is fit to resume full-time work and is not a risk to other members of your staff'.
45 The letter dated 30 June 2006 is addressed to CGU Insurance and states that Mr Owens' acute psychiatric disorder had rendered him unfit to resume work until 26 June 2006 but that he is '[now] sufficiently recovered to safely return to full-time duties'.
46 By letter dated 3 July 2006 the respondent wrote to Mr Owens to say it had received Dr Jacklyn's letters late on 30 June. The letter refers to Mr Owens hand-delivering copies of the letters to another employee and says 'this is totally unacceptable' but nothing really turns on this point. The letter concludes that the respondent would not change its decision to terminate his employment.
Dr Jacklyn's oral evidence
47 Dr Jacklyn told the Tribunal that the Progress Medical Certificates are produced from a template and that comments in some certificates had been inadvertently copied from previous certificates.
48 The errors (noted at [17]) make the certificates confusing. For instance, the certificate of 15 May 2006 certified Mr Owens both 'totally unfit' and 'fit for restricted return to work'. The certificate of 30 May 2006 certified him totally unfit from 30 May to 16 June but noted, under 'Fit work restrictions', the comment 'Needs to have resolution with work re conflict with co-workers if this does not eventuate then he will remain unfit'.
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49 Dr Jacklyn gave evidence that, on 21 March 2006, Mr Owens was totally unfit for work. However, Dr Jacklyn thought he could possibly return to work if the conflict was resolved, either by resolving the conflict itself or by placing him somewhere else in the organisation; hence his comment in the certificate of 21 March about a coordinated return to work.
50 In cross-examination, Dr Jacklyn stated that his comment in the certificate of 13 June 2006 that Mr Owens was 'fit to return to predisability duties' was made in the context that, at that time, Mr Owens was 'drowning'. Dr Jacklyn was concerned about his ability to cope back at work but the only way to test that was for him to return on a trial basis and see if he would 'sink or swim'. Dr Jacklyn agreed that he could have clarified in the certificate that Mr Owens' return to work would be for a trial only which would only work if the stressors could be resolved.
51 Dr Jacklyn's handwritten notes of his consultation with Mr Owens on 13 June 2006 refer to Mr Owens' meeting with the respondent and include the notations 'will resume work as needs financial input' and 'financial stress'.
52 Dr Jacklyn gave evidence that he saw Mr Owens on 28 June 2006 and Mr Owens reported that Ms Stawell had said she could not permit him to return because Dr Jacklyn had told her he would not give a full clearance to return to work and could not guarantee his fitness to return.
53 On 28 June 2006, Dr Jacklyn wrote to Ms Stawell stating that he wished to clarify her understanding of Mr Owens' fitness to return to work. The relevant parts of the letter state:
As I have previously stated, he is fit to resume as events stand. No-one can ever GUARANTEE that a person will remain fit indefinitely. … I therefore feel strongly that using the criteria of GUARANTEED fitness as a basis for a decision on [Mr Owens'] employment is both unjustified and could be construed as manipulating my words for another agenda.
54 Dr Jacklyn was not aware, at the time of writing this letter, that Mr Owens had seen Dr Malcolm Roberts, a psychiatrist, on 22 June 2006 and that Dr Roberts considered him unfit for work. In oral evidence Dr Jacklyn conceded that, had he known this, it 'probably' would have affected what he wrote in his letter of 23 June 2006 certifying Mr Owens fit to resume full-time work and subsequently.
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Dr Roberts' report
55 On 22 June 2006, Mr Owens saw Dr Malcolm Roberts, a psychiatrist whom he first saw in 2005 on a referral by Dr Jacklyn for attention deficit disorder. Dr Roberts has seen Mr Owens approximately 12 times since then for various reasons, including about what was happening at work.
56 In a report dated 15 May 2008 to Mr Owens' solicitor, Dr Roberts stated that Mr Owens presented to him on 22 June 2006 for an urgent appointment and presented 'with symptoms of a Major Depressive Disorder which was severe and without psychotic features'.
Oral evidence of Dr Terace and Dr Roberts
57 Dr Terace and Dr Roberts gave their oral evidence together. Their opinions differ in some respects as to the causes, nature and severity of Mr Owens' depressive disorder and they differ about his current capacity for employment.
58 Dr Roberts gave oral evidence that Mr Owens came to see him on 22 June 2006 'in a highly agitated state'; he had not always been good at keeping appointments, sometimes missing them and sometimes turning up unannounced when distressed. Dr Roberts told the Tribunal that, in his view, Mr Owens was not fit for work on 22 June 2006; he was, and remains, incapable of work.
59 Dr Terace gave evidence that, when he first saw Mr Owens in April 2006, he thought his psychiatric condition would take one to two years to resolve, or to see at least a 50 per cent reduction in his symptoms, but that there should probably be sufficient reduction for him to return to work within three to four months, with or without a return to work program. When he saw Mr Owens next he thought he had improved substantially but, after his employment was terminated, his condition worsened again.
The applicant's submissions
60 Mr Owens submits that the respondent, through its officers and employees, unlawfully discriminated against him either on the ground of his impairment, being a psychiatric illness or, alternatively, on the ground of a characteristic appertaining to persons with a psychiatric illness being that they are likely to require a graduated return to pre-illness duties when resuming employment, and that treatment for anxiety and depression may last a long time with no guarantee of a full recovery.
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61 Mr Owens says the respondent discriminated against him, firstly, by requiring him to return to work full-time immediately when medical advice was that he could not. He says that, in so doing, and in not permitting him to return to work on a graduated basis, the respondent treated him less favourably than it treated others whom it permitted to return to work gradually after a period of illness or injury.
62 Further, he says, the respondent discriminated against him by dismissing him because he could not guarantee his illness would not recur and, in so doing, treated him less favourably than it treated, or would have treated, another employee in similar circumstances without the same impairment.
63 Mr Owens cites three employees whom he says the respondent allowed to return to work on a graduated basis after a period of leave for illness or injury. The first is Damien Capp, a full-time Policy Director, who Mr Owens says took three weeks' paid sick leave following surgery and whom he observed working only a few hours each day in his first week back at work. In evidence, however, Mr Owens conceded that he did not know what Mr Capp's arrangement was for returning to work and he only assumed he was on a graduated return to work.
64 The second employee cited by Mr Owens is Tim Stawell who had leave in 2003 following surgery for cancer. However, there is no evidence that Mr Stawell had a graduated return to work or that he had further time off when he did return; Mr Owens has not made clear how Mr Stawell received more favourable treatment.
65 The third employee is Sandy Hayter, Administration Director, who took leave in late 2005 when she contracted glandular fever. Ms Hayter had some further time off after she returned to work but there is no evidence that this was anything other than sick leave taken in the usual way. Again, Mr Owens has not made clear how he says Ms Hayter received more favourable treatment.
Loss claimed
66 Mr Owens says the respondent's unlawful conduct made him more anxious, insecure and depressed, that he needs ongoing medical and psychological treatment, and that he has been unable to work since. He claims loss of income plus superannuation from the time of his termination to the present or, at least, for eight months from the date of termination, which is the period Dr Terace says he remained unfit for work. He also claims general damages for hurt and humiliation, an unreserved apology, a statement of service and a written reference in terms the Tribunal thinks
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- fit.
The respondent's submissions
67 The respondent says that Mr Owens was dismissed on 29 June 2006 because he was unable to provide a final medical certificate certifying him fit to return to work; he had been off work for four months and the respondent was not prepared to hold his position open for him any longer.
68 At the time of the termination, the respondent says it had the certificate dated 30 May 2006 from Dr Jacklyn certifying Mr Owens totally unfit for work until 16 June with no indication that he would be fit in the future. He had said at the meeting on 12 June that he was able to return on a graduated basis from 1 July, and then said he could return immediately from 19 June, even though the available medical certificate did not indicate that he would be fit from either date. The certificate dated 13 June certified him fit for pre-disability duties but even this, as Dr Jacklyn confirmed in oral evidence, was only ever fitness to return on a trial basis. The respondent argues that this is not an acceptable basis for any employee to return to work from an occupational health and safety point of view. It says it was reasonable to ask Mr Owens for a final clearance to return to full-time work but it never received that assurance.
69 The respondent submits that it made all proper inquiries before terminating Mr Owens' employment. It says the medical certificates were confusing and it was reasonable that it obtain a full, unconditional clearance. In these circumstances, the respondent argues, the applicant cannot say that he was refused a return to work when he was fit and able; the fact was that he was not fit to return and he knew this after seeing Dr Roberts on 22 June.
70 The respondent denies that any of the employees cited by Mr Owens received more favourable treatment on return to work after an illness or injury, or that any is an appropriate comparator for present purposes.
71 Ms Stawell gave evidence that Mr Capp returned to his full-time hours; at no time was he granted unpaid leave or a graduated return to work; any time he took off was from his accrued sick leave like any other employee. She told the Tribunal that Mr Stawell's employment ended in December 2003 after he had taken all his accrued sick and annual leave; at no time was he given unpaid leave or graduated return to work; in September 2005, he accepted a full-time position and recommenced employment. Ms Stawell gave evidence that Ms Hayter had accumulated a
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- significant amount of sick, annual and long service leave which she used during her illness and recuperation; she returned to work full-time and took sick and other paid leave as she required it.
72 In each case, the respondent says the employee was fit and able to return to work full-time; none returned on a graduated basis although they might have had time off in the usual way after their return. No evidence to the contrary has been put before the Tribunal.
73 The respondent maintains that the appropriate comparator for present purposes is a full-time employee who had been off work for four months with a physical injury suffered in the course of work and who was seeking to return to the same full-time duties. The question then would be whether that employee would be required to obtain a medical clearance before returning to work. Ms Stawell gave evidence that any employee in that position would be required to provide a medical clearance before being allowed to resume work and that Mr Owens was treated no differently.
74 In response to the damages claimed by Mr Owens, the respondent denies that its conduct constituted unlawful discrimination but says that, if its conduct is found to be unlawful, then any claim for damages for personal injury is barred by reason of a Deed of Discharge entered into by the parties in relation to Mr Owens' claims for workers' compensation. The Tribunal heard argument about how the Deed of Discharge should be read. Because we are not satisfied that the claim of unlawful discrimination is made out, it is not necessary to deal further with the Deed of Discharge.
Legislation
75 Impairment in the EO Act includes any defect or disturbance in the normal structure or functioning of a person's body; any defect or disturbance in the normal structure or functioning of a person's brain; or any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgments or which results in disturbed behaviour: s 4.
76 The relevant parts of 66A(1) of the EO Act provide that:
For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of
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- (a) the impairment of the aggrieved person;
(b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person; [or]
(c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person;
…
the discriminator treats the aggrieved person less favourably than in the same circumstances, or circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
77 Section 66B(2) provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee's impairment:
(a) in the terms or conditions of employment that the employer affords the employee;
(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;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
78 There is an exception to these provisions in that discrimination by an employer on the ground of impairment will not be unlawful if it is reasonable for the employer to conclude, after having taken all reasonable steps to obtain relevant information, that the employee would be unable to carry out work reasonably required to be performed in the course of the employment: s 66Q(1).
Reasons for decision
79 To make out his complaint, Mr Owens must establish to the Tribunal's satisfaction each of the elements of unlawful discrimination in the ground of impairment. The standard of proof is the balance of probabilities.
80 For the reasons set out below, the Tribunal is not satisfied on the evidence that the respondent's conduct in this case amounted to unlawful discrimination.
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Mr Owens' evidence generally
81 The respondent submitted in closing that Mr Owens was evasive, that he avoided answering direct questions and that the evidence of the respondent's witnesses should be preferred. We do not accept that Mr Owens was as evasive as claimed. He became confused at times about some dates and details in the various Progress Medical Certificates but, as Dr Jacklyn, conceded, they contained errors. Moreover, Mr Owens suffers from depression and the hearing process is undoubtedly stressful.
82 Having said that, it is evident that Mr Owens was not frank with Dr Jacklyn on 23 June 2006 when he went to him for a clearance to return to work. Mr Owens had seen Dr Roberts the previous day; he knew Dr Roberts considered him unfit for work and he knew his future employment was under threat.
Did Mr Owens have an impairment within the meaning of the EO Act?
83 Impairment in the EO Act includes any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour: s 4.
84 Dr Terace, Dr Roberts and Dr Jacklyn all agree that, at the material time, Mr Owens was suffering from a depressive disorder. It is not relevant that they differ somewhat about the cause, nature and severity of the disorder.
85 We are satisfied that, at the relevant time, Mr Owens had an impairment within the meaning of the EO Act.
86 Although evidence was not led specifically on the question of characteristics appertaining generally to people having the same impairment as Mr Owens, we are prepared to accept that it is characteristic of persons with a psychiatric illness that they are likely to require a graduated return to pre-illness duties when resuming employment and that treatment for anxiety and depression may last a long time with no guarantee of a full recovery.
Dr Jacklyn's evidence
87 The respondent submitted, and we agree, that Dr Jacklyn was trying to assist Mr Owens to return to work if at all possible and that this coloured the statements he made in the later Progress Medical Certificates about his fitness to return. Dr Jacklyn conceded that he could have made clear that Mr Owens was only fit to return on a trial basis and
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- not permanent full-time as his letters suggested. We accept that it was in this spirit that Dr Jacklyn wrote the letter dated 28 June 2006 clarifying that he could never guarantee Mr Owens' full recovery. The point is that Dr Jacklyn did not provide the full clearance that the respondent required.
Was the requirement to provide a full and final clearance a term or condition of employment?
88 It was suggested for the applicant that, in requiring Mr Owens to provide a medical clearance before returning to work, the respondent imposed on him a requirement to meet a standard that others were not required to meet. If by this it is suggested that the respondent contravened s 66(3) of the EO Act, then that is not a matter before the Tribunal in these proceedings.
89 The respondent submits that being asked to provide a clearance is not a term or condition of employment within the meaning of s 66A and that a claim of unlawful discrimination cannot be made out on this basis.
90 InAllders International Pty Ltd v Anstee (1986) 5 NSWLR 47 (Allders), the Court considered the meaning of 'terms or conditions of employment' in this context and decided that it is:
not restricted to the matter of the terms of employment, but [is] designed to encompass as well, all those demands and requirements, and benefits and concessions, in the actual employment which the employee must comply with or can accept as the case may be (per Lee J at 55).
91 A requirement to provide a medical clearance before returning to work after illness or injury appears to us to fall within the broad range of matters identified in Allders. However, the application fails for other reasons and it is not necessary finally to determine this question.
The meeting on 12 June 2006
92 The Tribunal accepts that Mr Henderson said to Mr Owens at the meeting on 12 June words to the effect that his position could not be held open for him indefinitely. There is nothing unreasonable in a statement like this. The Tribunal does not accept Mr Owens' claim that Mr Henderson insisted he return to work immediately although, given the context in which the meeting occurred, he might reasonably have understood Mr Henderson's statement this way.
93 The Tribunal does not accept that Mr Owens offered to return to work immediately on a graduated basis. All the evidence points to him offering to return part-time from 1 July. Ms Stawell's offer to contact Dr Jacklyn for
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- Mr Owens to return from 1 July is consistent with this, as is the fact that Mr Owens rang Ms Stawell shortly after the meeting and offered to return fulltime immediately. The Tribunal is satisfied that Mr Owens told Mr Henderson and Ms Stawell that there would be financial implications if he returned to work before 1 July. That is consistent with the note that Dr Jacklyn made of his conversation with Mr Owens the following day and the reference to financial needs and stress.
94 In these circumstances, the Tribunal does not accept that Mr Owens was in fact refused a graduated return to work. Even if he was, for the reasons set out below, it did not amount to unlawful discrimination as claimed.
Was Mr Owens treated less favourably than the respondent did, or would have, treated others in the same or not materially different circumstances who did not have the same impairment?
95 'Less favourable treatment' involves another person or persons by comparison with whom a complainant's treatment was less favourable, and that person or persons be in 'circumstances' which are 'the same' or 'not materially different' from the complainant.
96 It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated; it may be that the comparator is hypothetical.
97 Mr Owens maintains that he was treated less favourably, on the ground of his impairment, than three other employees who he says were allowed a graduated return to work. However, there is no evidence before the Tribunal that any of the persons cited was allowed a graduated return to work. It is no more than speculation on Mr Owens' part that any other employee was allowed to return on this basis. He observed that Mr Capp and Ms Hayter had some time off after they returned to work from sick leave. The respondent says, and the Tribunal accepts, that there was no arrangement for either to return on a graduated basis. Mr Owens has not made clear why he says Mr Stawell returned on a graduated basis but the respondent says, and the Tribunal accepts, that there was no arrangement at any time for him to return to work on a graduated basis.
98 The Tribunal accepts the respondent's evidence that none of these employees had been off work with a work-related injury; none had been providing progress medical certificates; and there was no issue of possible
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- recurrence of a work-related illness or injury. Each was able to resume work full-time. There was no question of requiring a medical clearance from any of them; they simply returned to work after a period of sick leave.
99 The true comparator is a full-time employee who had been off work for four months with a physical injury suffered in the course of work and who was seeking to return to the same full-time duties. The Tribunal accepts Ms Stawell's evidence that a person in those circumstances, which are the same, or not materially different, but who did not have such an impairment as Mr Owens, would have been treated in the same way, and the same clearance required of them, before they could return to work.
100 The Tribunal accepts that, at the time that Mr Henderson and Ms Stawell decided to terminate Mr Owens' employment, they based their decision on the available medical evidence which comprised Dr Terace's report of 16 April 2006, the Progress Medical Certificates from Dr Jacklyn and Ms Stawell's conversation with Dr Jacklyn on 19 June or 20 June 2006 from which it was still not clear that Mr Owens was sufficiently recovered to resume work.
101 The Tribunal finds that Mr Owens' employment was terminated because the respondent was not satisfied that he was medically fit to return. It is not satisfied that the respondent's conduct in terminating Mr Owens' employment constituted discrimination on the ground of his impairment within the meaning of the EO Act.
Section 66Q exception
102 The respondent submits that, if there is any unlawful conduct on its part, it is rendered not unlawful by virtue of s 66Q of the EO Act. As the Tribunal finds that the respondent's conduct did not constitute unlawful discrimination, it is not necessary to deal with this issue.
Conclusion
103 The Tribunal has not seen the terms of the Federal Government grant and it is not clear why the respondent could not have continued as it was, at least for some time, with another person covering Mr Owens' position. Nor is it clear why the respondent could not have come to some arrangement which would have allowed Mr Owens to return to work on a graduated basis if it had wanted to.
104 It might be said that the respondent acted hastily in terminating Mr Owens' employment in the way that it did. It is true that he had been off work for four months and the Tribunal accepts that the respondent was anxious not to jeopardise its Federal Government grant but it could have offered Mr Owens a trial return to work. The respondent had managed to cover Mr Owens' position for four months and there is no evidence to suggest that it was not possible to continue like this for some time longer or that the Federal Government funding was actually at risk. Further, there is no evidence of any attempt by the respondent to resolve the conflict at work as suggested by between Mr Owens and Mr Stawell and any others.
105 It is possible that the decisions not to allow a graduated or trial return to work and to terminate Mr Owens' employment were influenced by a history of some dissatisfaction with his work. It is possible that Ms Stawell was not motivated to try to resolve a conflict in which her father was a party. However, this is not a claim of unfair dismissal. It is a claim of unlawful discrimination. The Tribunal is not satisfied, on the evidence, that the claim is made out.
Order
The application is dismissed.
I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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